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People v. Bailey

Court of Appeals of Illinois, Third District

August 22, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DENNIS BAILEY, Defendant-Appellant.

         Appeal from the Circuit Court of Will County, No. 05-CF-787; the Hon. Robert P. Livas, Judge, presiding.

          Michael J. Pelletier and Jessica Wynne Arizo, both of State Appellate Defender's Office, of Elgin, for appellant.

          James Glasgow, State's Attorney, of Joliet (Gary F. Gnidovec, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justice Wright concurred in the judgment and opinion. Justice McDade dissented, with opinion.

          OPINION

          HOLDRIDGE JUSTICE

         ¶ 1 The defendant, Dennis Bailey, appeals the trial court's denial of his motion for leave to file a successive postconviction petition. Because we find that (1) the trial court did not err in allowing the State to respond to the defendant's motion for leave to file a successive postconviction petition and (2) the defendant's motion for leave to file a successive petition failed to state a colorable claim of actual innocence, we affirm the trial court's denial of the motion.

         ¶ 2 FACTS

         ¶ 3 In July 2005, the defendant was indicted on two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)) and four counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2004)) for acts committed against his two nieces, S.B. and K.B., in June and July 2004. At the time the conduct allegedly occurred, the defendant was living with S.B. and K.B. in the apartment of their mother, Regina B. S.B. was 14 years old, and K.B. was 10 years old.

         ¶ 4 A jury trial was held. Regina B. testified that she was the defendant's sister. In the summer of 2004, the defendant lived with Regina and her two daughters, K.B. and S.B. The defendant babysat K.B. and S.B. while Regina was at work. Regina believed that the defendant was too strict with K.B. and S.B. because he told them to do things they did not want to do, like cleaning their room and washing dishes. K.B. and S.B. complained to Regina about the defendant making them do chores.

         ¶ 5 S.B. testified that she was 14 years old in the summer of 2004. One morning in the middle of June, the defendant woke S.B. in her room. K.B. and S.B.'s friend Carmen were in the room sleeping as well. The defendant told Carmen and K.B. to go to Carmen's house next door. Carmen and K.B. left. S.B. walked into the living room, and the defendant pushed her against the wall and put his hands around her neck. The defendant told S.B. that if she did not "give it to him, " he would "take it" when she was asleep. The defendant told S.B. he would kill her and hurt her family if she told anyone.

         ¶ 6 The defendant removed S.B.'s pants and told her to go to her bedroom. S.B. went to her room, and the defendant told her to remove her remaining clothes. The defendant removed his clothes and told S.B. to lie across the bed. The defendant licked S.B.'s vagina and touched her breasts. The defendant then put his penis in S.B.'s vagina for about 30 minutes. When he finished, he told S.B. to clean herself up. S.B. put her clothes on and went to Carmen's house. The next day, the defendant gave S.B. $50 and a jersey. He later gave her a cell phone. S.B. never told her mother because she was scared. S.B. called the police approximately one month later on July 22, 2004, because K.B. told her that the defendant did the same thing to her.

         ¶ 7 K.B. testified that she was 10 years old in the summer of 2004. One morning in June 2004, the defendant went into K.B.'s bedroom while she was sleeping. No one else was home. The defendant told K.B. to remove her clothes because he was going to "whoop" her. K.B. removed her clothes, and the defendant told her to lie on the bed and open her legs. The defendant then licked K.B. between her legs. K.B. started crying, and the defendant put a pillow over her face. The defendant then tried to insert his penis inside K.B., but he did not actually insert it. The defendant then told K.B. to take a bath. The defendant told K.B. that he would kill her mother and ruin the family if she told anyone. A few days after the incident, K.B. asked the defendant why he did that to her since he had a girlfriend. The defendant said he did not want to catch AIDS.

         ¶ 8 Approximately a week and a half after the first incident, the defendant again woke K.B. up in the morning. No one else was home. The defendant told K.B. to remove her clothes. She did as he asked. The defendant licked K.B.'s vagina. K.B. was crying loudly. The defendant tried to insert his penis in K.B.'s vagina, but he did not actually insert it. K.B. then saw some white liquid on the bed. The defendant got a towel and wiped the white liquid off the bed. The defendant told K.B. to take a bath. He told K.B. not to tell anyone or he would "mess up" the family. After the second incident, the defendant told K.B. that he did not really need a girlfriend because he could just have sex with K.B. and S.B.

         ¶ 9 About a week after the second incident, K.B. and her five-year-old niece were sleeping in K.B.'s bed. K.B. felt someone playing with her underwear. She woke up and saw the defendant. The defendant licked K.B. between her legs and then tried to put his penis inside her. K.B. tried to wake her niece, but she would not wake up. The defendant then left and told K.B. to go back to sleep.

         ¶ 10 K.B. told her older sister Christina what had happened about a week and a half later.

         ¶ 11 The defendant testified against counsel's advice. The defendant denied that he assaulted K.B. and S.B. The defendant pointed to several incidents where S.B. was angry with him for various reasons. Specifically, the defendant testified that S.B. was angry with him after he pushed her during an argument. S.B. tried to call the police and threatened to get the defendant in trouble for "putting [his] hands on her." She was also angry that the defendant and his girlfriend told others that they had seen one of S.B.'s friends in an alley and it appeared that she had been having sex. S.B. told the defendant that she was going to "get" him for causing trouble for her friend.

         ¶ 12 The jury found the defendant guilty on all counts. The trial court sentenced the defendant to 57 years' imprisonment on each count of predatory criminal sexual assault and 30 years for each count of aggravated criminal sexual abuse, all to run consecutively, for a total of 234 years' imprisonment.

         ¶ 13 The defendant appealed. We vacated one of the defendant's convictions for aggravated criminal sexual abuse on one-act, one-crime principles and affirmed the defendant's remaining convictions. People v. Bailey, No. 3-06-0205 (2008) (unpublished order under Supreme Court Rule 23).

         ¶ 14 The defendant filed an initial pro se postconviction petition, arguing various issues related to the alleged ineffectiveness of trial and appellate counsel. The trial court summarily dismissed the defendant's petition. On appeal, we affirmed the trial court's summary dismissal. People v. Bailey, 2011 IL App (3d) 090705-U, ¶¶ 18-19.

         ¶ 15 On October 29, 2013, the defendant filed a motion for leave to file a successive postconviction petition along with a successive petition, which are the subject of the instant appeal. The defendant's petition contained, inter alia, a claim of actual innocence. The defendant attached an affidavit from his other sister, Dorothy B., which was notarized on October 22, 2013. Dorothy's affidavit stated that the defendant called Dorothy from prison during a family cookout on September 22, 2012, and asked to talk to S.B. S.B. refused to talk to the defendant. Dorothy asked S.B. why she would not talk to the defendant, and S.B. told Dorothy that "this [had] been eating at her conscience." S.B. said that she told her boyfriend about a fight she had with the defendant and that she wanted the defendant out of the house and in jail for putting his hands on her. S.B.'s boyfriend influenced her to call the police and accuse the defendant of raping her. S.B. admitted to Dorothy that she encouraged K.B. to make up similar claims. S.B. told Dorothy that the Joliet police knew she lied, and a police officer threatened to arrest her for making a false 911 call and wasting their time. S.B. tried to correct things, but her mother told S.B. not to do anything because S.B. would get into trouble. Both of Dorothy's sons were present during S.B.'s confession. Dorothy informed the defendant about her conversation with S.B. in a written letter a few days later.

         ¶ 16 At a hearing on November 20, 2013, at which the defendant was not present, the trial court asked the State if it had received the defendant's motion for leave to file a successive postconviction petition. The prosecutor replied that she had reviewed the motion and asked the trial court if it would like her to respond orally or in writing. The trial court replied, "Orally." The prosecutor then argued that the petition did not meet the cause and prejudice test. The prosecutor claimed all the allegations raised therein could have been raised or were raised in the defendant's first postconviction petition except for a claim of ineffective assistance of postconviction appellate counsel. The prosecutor noted, however, that the defendant's motion failed to explain what issues postconviction appellate counsel should have raised in the appeal of the ...


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