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.
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.
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.
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
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
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
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
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 ...