from the Circuit Court of the 13th Judicial Circuit, La Salle
County, Illinois, Circuit No. 02-CF-272 Honorable Cynthia M.
Raccuglia, Judge, Presiding.
JUSTICE McDADE delivered the judgment of the court, with
opinion. Justices Lytton and O'Brien concurred in the
judgment and opinion.
1 Defendant, Michael E. Munson, appeals from the circuit
court's dismissal of his motion for leave to file a
successive postconviction petition. Defendant argues that the
court erred because it impermissibly allowed the State to
provide input on his motion for leave. We vacate and remand
3 Defendant was convicted of unlawful possession of a
controlled substance with intent to deliver (720 ILCS
570/401(a)(2)(D) (West 2002)) and sentenced to 40 years'
imprisonment. On direct appeal, we affirmed defendant's
conviction and sentence. People v. Munson, No. 3-04-
0703 (2007) (unpublished order under Illinois Supreme Court
Rule 23). On May 30, 2008, defendant filed a postconviction
petition alleging ineffective assistance of appellate
counsel. Following a third-stage evidentiary hearing, the
circuit court denied defendant's petition. We affirmed
the denial on appeal. People v. Munson, No.
3-08-0803 (2011) (unpublished order under Illinois Supreme
Court Rule 23). Between January and June 2013, defendant
filed two petitions for relief from judgment under section
2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2012)) and a complaint for mandamus relief.
The circuit court dismissed each of these filings. On appeal,
we affirmed the circuit court's dismissals. People v.
Munson, No. 3-13-0367 (2016) (unpublished summary order
under Illinois Supreme Court Rule 23(c)).
4 On August 4, 2014, defendant filed a motion for leave to
file a successive postconviction petition. Defendant alleged
the following cause for filing a successive petition: he
inadvertently discovered new information when he sought
information about his seized firearms in a Freedom of
Information Act (FOIA) (5 ILCS 140/1 et seq. (West
2014)) request to the Illinois State Police. Through the
request, defendant learned that the State had failed to
disclose evidence of a laboratory test on inositol-a vitamin
B compound that defendant alleged was used to cut cocaine.
Defendant alleged that he suffered prejudice as a result of
the undisclosed evidence because it could have been used to
impeach a witness for the prosecution. The State filed a
motion to dismiss defendant's petition.
5 At the hearing on the State's motion to dismiss, the
State argued that defendant had failed to show the cause and
prejudice required to bring a successive petition. Defendant
argued that he was unable to bring his claim in a prior
proceeding because he discovered the results of the
laboratory test after he filed an unrelated FOIA claim.
Defendant argued he suffered prejudice from the State's
failure to disclose the evidence because the defense likely
could have used the evidence to obtain a different result at
trial. The court granted the State's motion to dismiss,
finding that defendant had not shown the requisite prejudice
to receive leave to file a successive postconviction
petition. Defendant appeals.
7 Defendant argues that the circuit court erred when it
allowed the State to respond to defendant's motion for
leave and to make arguments against the motion. Defendant
specifically argues the Post-Conviction Hearing Act (Act)
prohibits the State from participating in the postconviction
proceedings until the petition is advanced to the second
stage. See 725 ILCS 5/122-5 (West 2014). Therefore, defendant
contends the cause should be remanded for the circuit court
to consider his motion for leave to file a successive
postconviction petition without input from the State.
8 In October 2017, the supreme court addressed this issue in
People v. Bailey, 2017 IL 121450. In
Bailey, the supreme court determined "it is
premature and improper for the State to provide input to the
court before the court has granted a defendant's motion
for leave to file a successive petition." Id.
¶ 20. That is, it is improper for the circuit court to
allow and consider the State's objection to
defendant's motion for leave to file a successive
postconviction petition. Id. Instead, the court must
conduct an independent inquiry, without input from the State,
into whether defendant should be granted leave to file a
successive postconviction petition. Id. Applying
Bailey to this case, we find the circuit court erred
when it allowed the State to provide input on defendant's
motion for leave.
9 Having found error, we must determine the proper relief. In
Bailey, the supreme court acknowledged
defendant's request to remand the matter for new
proceedings before a new judge. Id. ¶ 41.
However, the supreme court declined to remand the matter
under the circumstances and, instead, conducted a de
novo review of whether defendant had satisfied the cause
and prejudice test. Id. ¶ 42. The court
concluded that defendant had not satisfied the test and
affirmed the circuit court's denial of leave to file a
successive postconviction petition. Id. ¶¶
10 Unlike the supreme court, we do not have broad supervisory
authority. People v.Whitfield, 228 Ill.2d
502, 520-21 (2007). Instead, we are authorized to "(1)
reverse, affirm, or modify the judgment or order from which
the appeal is taken; (2) set aside, affirm, or modify any or
all of the proceedings subsequent to or dependent upon the
judgment or order from which the appeal is taken; (3) reduce
the degree of the offense of which the appellant was
convicted; (4) reduce the punishment imposed by the trial
court; or (5) order a new trial." Ill. S.Ct. R. 615(b).
Notably, Illinois Supreme Court Rule 615 does not provide the
appellate court with the power to conduct a de novo
hearing on defendant's motion for leave to file a
successive postconviction petition. This is consistent with
the Act, which expressly contemplates the ...