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Conway, No. 2-01-0924 (2003) (unpublished order under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Conway, No. 2-09-0193 (2010) (unpublished order under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 ...