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People v. Conway

Court of Appeals of Illinois, Second District

June 17, 2019

ERICK D. CONWAY, Defendant-Appellant.

          Appeal from the Circuit Court of Winnebago County. No. 99-CF-2666 Honorable Joseph G. McGraw, Judge, Presiding.

          JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Hutchinson and Schostok concurred in the judgment and opinion.



         ¶ 1 Defendant, Erick D. Conway, appeals from the denial of leave to file a second petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). Defendant argues that the State improperly participated in the trial court's determination whether to grant leave and that the case must therefore be remanded for a new determination. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Following a jury trial in the circuit court of Winnebago County, defendant was found guilty of armed robbery (720 ILCS 5/18-2(a) (West 1998)) and was sentenced to life imprisonment as a habitual criminal (id. § 33B-1). Defendant had originally been charged with escape as well, but the two charges were severed. We affirmed defendant's armed robbery conviction on direct appeal. People v. Conway, No. 2-01-0924 (2003) (unpublished order under Illinois Supreme Court Rule 23). Defendant filed a petition under the Act, in which he contended that he received ineffective assistance of counsel in his direct appeal because appellate counsel failed to argue that defendant was not brought to trial within 120 days, as required by section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5(a) (West 1998)). After some procedural missteps, defendant was given the opportunity to file an amended petition with the reasonable assistance of counsel. The trial court granted the State's motion to dismiss the amended petition. We affirmed the dismissal. People v. Conway, No. 2-09-0193 (2010) (unpublished order under Illinois Supreme Court Rule 23).

         ¶ 4 On October 18, 2016, defendant moved for leave to file a successive postconviction petition. In his motion, defendant argued that there was cause under section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2016)) for his failure to bring the successive petition's claims in his initial postconviction petition. Specifically, defendant argued that cause existed because, during the initial postconviction proceedings, he was unfit due to mental illness. In the successive petition itself, defendant alleged that, while in the Department of Corrections, he had been diagnosed with severe anxiety and mild schizophrenia.

         ¶ 5 On October 21, 2016, Assistant State's Attorney Steven Biagi appeared in court to voice the State's opposition to defendant's motion. Defendant was not present. Biagi noted that, in defendant's initial postconviction petition, he claimed that he was deprived of his right to a speedy trial. Biagi stated that continuances granted to defendant's trial counsel were attributable to defendant because defendant did not specifically seek to "fire" trial counsel. Biagi noted that this court affirmed the dismissal of the original petition. Biagi argued that defendant was "raising the very same issue" that he raised in the initial petition, but was "couching it in terms of how he believes he was unfit during his post-conviction proceedings." Biagi argued that defendant's alleged mental illness did not render him unfit. Biagi contended that defendant was "just rehashing what he's already raised and that which was rejected" and that defendant had not shown cause or prejudice. See id. The trial court denied defendant's motion for leave, stating as follows:

"As far as the issues raised, they have been raised previously and previously litigated ***.
He makes a conclusory statement that he has been diagnosed with an anxiety disorder, among other things, *** and, therefore, he also makes a conclusory statement that somehow that rendered him unfit for trial. Of course, that's a non sequitur. Because even if he has been diagnosed with an anxiety disorder in the Department of Corrections, it certainly bears no logical or legal relationship to his mental status at the time of trial or during the time of his previously filed post-conviction petitions.
Furthermore, there is not an equivalency between a mental disorder or mental illness and unfitness. They are separate determinations. And there is no showing that he was, in fact, unfit during the time of his previous pleas or that he is currently unfit or that any of his prior filings were or are actions in any way impaired.
This is essentially just an end run around the prohibition against successive post-conviction filings."

         ¶ 6 After the trial court announced its ruling, Biagi asked whether the court recalled defendant's conduct during the proceedings on defendant's initial postconviction petition. The trial court responded that defendant "did not aver or allude to any difficulty with understanding the proceedings or comprehending what was going on." The court added that, at the time, it "had no reservations whatsoever about [defendant's] lucidity, fitness and so forth." The court entered a written order ...

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