from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois, Appeal No. 3-16-0165 Circuit No. 05-CF-510
Honorable Amy M. Bertani-Tomczak, Judge, Presiding.
JUSTICE WRIGHT delivered the judgment of the court. Justice
Holdridge specially concurred, with opinion. Justice Schmidt
dissented, with opinion.
1 Defendant, David F. Baller, appeals from the trial
court's order denying his motion for leave to file a
successive postconviction petition. On appeal, defendant
argues the State erroneously filed an objection to his motion
for leave and the court erroneously considered the
State's objection in denying defendant leave. We vacate
and remand with directions.
3 Defendant entered an open plea of guilty to one charge of
aggravated criminal sexual assault (720 ILCS 5/12-14(a)(8)
(West 2002)). The trial court admonished defendant that he
could receive a potential sentence of 6 to 30 years'
imprisonment and the sentence would be served consecutive to
the prison sentence defendant was then serving. Defendant
indicated he understood the potential sentence. The court
sentenced defendant to 30 years' imprisonment. The court
ordered the sentence to run consecutively to the sentence
imposed in Cook County case No. 05-CR-0778501.
4 On November 18, 2011, defendant filed a pro se
postconviction petition, which raised claims of ineffective
assistance of trial and appellate counsel. The court
summarily dismissed the petition. On appeal, we affirmed the
court's dismissal. People v. Baller, 2014 IL App
5 On June 19, 2015, defendant filed a pro se motion
for leave to file a successive postconviction petition. The
State filed a written objection to defendant's motion. At
a subsequent court date, when only the State was present, the
court denied defendant's motion, stating:
"I've had a chance to review the defendant's
petition for leave to file a successive post conviction
[sic]. I also had a chance to read the State's
motion to-or your objection, and I'm going to grant your
objection. I'm not going to allow him to file a
successive petition for post-conviction relief."
appeals from the trial court's denial of his motion for
leave to file a successive postconviction petition.
7 Defendant argues the court impermissibly relied on input
from the State before denying defendant's motion for
leave to file a successive postconviction petition. Defendant
requests a reversal of the order denying his motion for leave
and asks this court to remand the matter for the trial court
to consider defendant's motion anew, without input from
the State. The State agrees the trial court should not have
considered the State's position before denying
defendant's request to file a successive postconviction
petition. However, the State asserts that remand is
unnecessary. On appeal, the State requests this court to
affirm the trial court's order because defendant's
motion did not adequately allege cause and prejudice.
8 The issue of whether reversible error arises when a trial
court takes the State's position into consideration
before ruling on a defendant's motion seeking leave to
file a successive postconviction petition was recently
addressed in People v. Bailey, 2017 IL 121450. In
Bailey, the supreme court held "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 [postconviction]
petition." (Emphasis added.) Id. ¶ 20.
Ultimately, the supreme court found section 122-1(f) of the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West
2016)) requires the trial court to conduct an independent
inquiry, without input from the State, before determining
whether a defendant is entitled to receive the requested
leave necessary to file a successive postconviction petition.
Bailey, 2017 IL 121450, ¶ 24.
9 In People v. Munson, 2018 IL App (3d) 150544, this
court had an opportunity to apply Bailey to set
aside a trial court's decision granting the State's
motion to dismiss the defendant's motion for leave to
file a successive postconviction petition. We further found
that section 122-1 of the Act expressly contemplates the
filing of the petition in the" 'trial
court.'" Id. (quoting 725 ILCS 5/122-1
(West 2014)). Therefore, consistent with the spirit of
Bailey and plain language of the Act, we remanded
the cause with directions for the trial court to conduct ...