Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County No. 98 CR 22907, Honorable Thomas M. Davy, Judge Presiding.
McBride and Taylor, Justices concurred in the judgment and opinion.
¶ 1 Defendant, Tramaine Jones appeals from the September 30, 2011 order of the circuit court dismissing his successive postconviction petition. The summary dismissal of defendant's initial pro se postconviction petition was affirmed by this court (see People v. Jones, 341 Ill.App.3d 103 (2003)), and ultimately by our supreme court (see People v. Jones, 213 Ill.2d 498 (2004)). The historical path that this case took to the supreme court, including the original proceedings in the trial court where the defendant pled guilty to the charge of attempted first degree murder, post judgment motions to reduce sentence and to withdraw the guilty plea, the dismissal of the original pro se postconviction petition, the first appeal to this court (Jones I) and the granting of leave to appeal to the supreme court are clearly set forth in our court's previous opinion and the opinion of the supreme court and will not be repeated here.
¶ 2 Our supreme court in affirming this court's decision in Jones I, rejected the defendant's attempt to raise the issue of improper plea admonitions for the first time on appeal after the dismissal of an original postconviction petition. The court noted that Section 122-3 of the Illinois Postconviction Hearing Act provides, "(a)ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." Jones, 213 Ill.2d at 504 (quoting 725 ILCS 5/122-3 (West 2000). Then citing to its recent decision in People v. Jones, 211 Ill.2d 140 (2004), the court acknowledged the following:
" '[T]his holding does not leave a postconviction petitioner such as defendant entirely without recourse. A defendant who fails to include an issue in his original or amended postconviction petition, although precluded from raising the issue on appeal from the petition's dismissal, may raise the issue in a successive petition if he can meet the strictures of the "cause and prejudice test." ' " Jones, 213 Ill.2d at 508 (quoting Jones, 211 Ill.2d at 148–49).
In holding that this defendant's proper vehicle for his improper admonishment claim is a successive postconviction petition, the court concluded in saying:
"As we noted in Jones, when appellate counsel discover errors not raised by their clients during the summary, first-stage postconviction proceedings, the proper course of action for counsel to take is to file a successive petition in which the newly found claim is properly alleged." Jones, 213 Ill.2d at 509 (citing Jones, 211 Ill.2d at 148–49).
In an attempt to follow the supreme court's guidance, the defendant subsequently decided to proceed by way of a successive pro se postconviction petition (successive pro se petition) Importantly, defendant did not obtain leave to file his successive pro se petition as is required by the Act, but rather filed the same without leave. This successive pro se petition alleged that the defendant was "affirmatively misled" by the trial court's erroneous admonishments and also that he received ineffective assistance of counsel when his attorney filed the wrong post-plea motion. The defendant's pro se successive postconviction petition was received by the circuit court clerk on March 2, 2005. Even though the defendant had filed the successive pro se petition without leave, and without discussing the question of whether the defendant had demonstrated cause for his failure to raise these claims in his initial postconviction petition and prejudice resulting from that failure which would excuse a procedural bar, and without determining that the petition alleged the gist of a constitutional claim, the trial court docketed the petition on April 29, 2005 and appointed the Public Defender. The State filed a motion to dismiss on September 30, 2005.
¶ 3 The matter then languished in the trial court for over five years during which time one assistant public defender (APD) replaced another that had retired, and the case was continued numerous times for the purpose of drafting a supplemental petition. Notably, it was not for five years, until November 19, 2005, that the State raised the question of whether leave was ever granted to file the successive pro se petition. The parties noted that the petition was docketed but did not resolve at that time whether leave to file the successive petition was ever granted.
¶ 4 On December 14, 2010, an APD filed a supplemental successive postconviction petition as well as a Rule 651(c) certificate. In response, on January 28, 2011, the State filed a second motion to dismiss. This motion, in addition to other arguments, asserted that these claims were procedurally barred, that defendant could not satisfy the cause and prejudice test required to excuse the bar, and further that the proceedings should be terminated as the pro se successive petition was filed without leave. The matter was then continued several times for the defendant to answer the second motion to dismiss.
¶ 5 On August 26, 2011, now more than six and a half years down the road, the APD acknowledged that her review of the record disclosed that even though the court had docketed the successive pro se petition, leave had never been granted to file it in the first place. As a result, at that time the APD filed a motion "formally requesting leave to file the successive postconviction petition." The record reflects that the trial court noted that this motion referenced the supreme court's "advising Jones to file a successive post conviction." The trial court then stated, "that may have been why I docketed it advise [sic] of [t]he [s]upreme [c]ourt." At this point the trial court stated definitively, "[a]t this time the motion for leave to file successive petition would be allowed." The court further added, "As I said, probably based on the supreme court advising to file a successive petition." Once again, this order was entered with no discussion or findings as to whether the defendant had shown the cause and prejudice necessary to excuse the procedural bar resulting from the defendant not raising his claims earlier. The matter was then continued for a hearing on the State's motion to dismiss, the APD having indicated that she would not be filing a written response.
¶ 6 On September 30, 2011, a hearing was held on the pending motion to dismiss. During argument the State contended, inter alia, that the pending claims were procedurally barred as they were not raised in the original post conviction petition and that, "there is no excuse for it. It was in the record." In answer to the trial court's inquiry as to what claim was newly found such that it was not raised in the initial petition the APD responded that, "the newly found issue is Mr. Jones did not know as a lay person that he was given improper admonishments."
¶ 7 At the conclusion of the arguments the trial court granted the State's motion to dismiss on the grounds that the claims brought in the successive postconviction petition were ...