from the Circuit Court of McLean County No. 98CF1062
Honorable John Casey Costigan, Judge Presiding.
E. Chadd, Patricia Mysza, and Gilbert C. Lenz, of State
Appellate Defender's Office, of Chicago, for appellant.
Knapp, State's Attorney, of Bloomington (Patrick Delfino,
David J. Robinson, and Allison Paige Brooks, of State's
Attorneys Appellate Prosecutor's Office, of counsel), for
JUSTICE TURNER delivered the judgment of the court, with
opinion. Justices Cavanagh and Harris concurred in the
judgment and opinion.
1 In November 2015, defendant, Thomas V. Ryburn, filed a
pro se motion for leave to file a successive
postconviction petition. The McLean County circuit court
allowed defendant to file his successive postconviction
petition and later moved the petition to the second stage of
the postconviction proceedings. At the second stage,
defendant was appointed counsel who filed an amended
successive postconviction petition. The State filed a motion
to dismiss defendant's amended successive postconviction
petition. In September 2017, the court entered a written
order dismissing defendant's successive postconviction
2 Defendant appeals, contending the circuit court erred by
dismissing his amended successive postconviction petition. We
reverse and remand for further proceedings.
3 I. BACKGROUND
4 In October 1998, the State charged defendant with four
counts each of aggravated criminal sexual assault (720 ILCS
5/12-14(a)(1) (West 1998)), criminal sexual assault (720 ILCS
5/12-13(a)(1) (West 1998)), and aggravated criminal sexual
abuse (720 ILCS 5/12-16(d) (West 1998)) for his actions on
September 8, 1998. At an October 1999 guilty-plea hearing,
defendant pleaded guilty to three counts of aggravated
criminal sexual assault pursuant to a plea agreement, under
which the State agreed (1) to dismiss the remaining nine
counts and other unrelated charges against defendant, (2) to
recommend an aggregate sentence totaling no more than 60
years, and (3) the circuit court would not impose a fine on
defendant. After fully admonishing defendant and hearing the
State's factual basis, the circuit court accepted
defendant's guilty pleas. At the plea hearing, defendant
was represented by Assistant Public Defender Kim Campbell.
5 In November 1999, the circuit court sentenced defendant to
20 years in prison on each count of aggravated criminal
sexual assault, with those sentences to be served
consecutively (730 ILCS 5/5-8-4(a) (West 1998)). In December
1999, defendant filed a motion to withdraw his guilty pleas,
alleging he did not enter them knowingly and voluntarily.
Following a February 2000 hearing, the court denied
defendant's postplea motion.
6 Defendant appealed and argued, inter alia, (1)
section 5-8-4(a) of the Unified Code of Corrections (730 ILCS
5/5-8-4(a) (West 1998)), which required the imposition of
consecutive sentences in his case, was unconstitutional under
Apprendi v. New Jersey, 530 U.S. 466 (2000) and (2)
the circuit court erred by finding him fit. This court
affirmed defendant's convictions and 60-year aggregate
sentence. People v. Ryburn, 321 Ill.App.3d 1068, 797
N.E.2d 252 (2001) (table) (unpublished order under Illinois
Supreme Court Rule 23).
7 In June 2002, defendant filed pro se his first
petition for relief under the Post- Conviction Hearing Act
(Postconviction Act) (725 ILCS 5/122-1 et seq. (West
2002)). The petition raised the following constitutional
claims: (1) defendant received ineffective assistance of
guilty-plea counsel in that counsel (a) failed to raise a
speedy-trial claim, (b) failed to call certain alibi
witnesses, (c) failed to present evidence to corroborate the
purported alibi, (d) failed to obtain police records that
allegedly showed the victim had a motive to fabricate her
complaint against defendant, and (e) stipulated defendant was
fit to plead guilty and (2) he received ineffective
assistance of appellate counsel because counsel failed to
raise on appeal the aforementioned issues. Later in June
2002, the circuit court summarily dismissed the petition as
frivolous and patently without merit. 725 ILCS
5/122-2.1(a)(2) (West 2002). Defendant filed a notice of
appeal, and the circuit court appointed the Office of the
State Appellate Defender (OSAD) to serve as defendant's
counsel. In March 2003, OSAD moved to withdraw as counsel.
This court granted OSAD's motion to withdraw as counsel
on appeal and affirmed the circuit court's dismissal of
defendant's initial postconviction petition. People
v. Ryburn, No. 4-02-0552 (July 29, 2003) (unpublished
order under Illinois Supreme Court Rule 23).
8 In July 2004, defendant filed a petition under section
2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2004)), seeking to set aside his October 1999 guilty
pleas. Defendant first argued he received ineffective
assistance of guilty-plea counsel in that counsel (1)
"fraudulently concealed [the circuit court's]
violation of the guilty plea" agreement when the court
imposed fines and ordered that defendant pay restitution; (2)
violated several rules of professional conduct; (3) did not
consult with him about what issues he wanted to raise in his
motion to withdraw his guilty pleas; (4) filed an Illinois
Supreme Court Rule 604(d) (eff. Aug. 1, 1992) certificate
that was "suspect"; (5) "fraudulently
concealed" defendant's medical records,
mental-health history, and certain exculpatory evidence; (6)
failed to argue his consecutive sentences were improper; and
(7) failed to argue defendant's "legal innocents
[sic]" in his motion to withdraw his guilty
pleas. Defendant also contended the circuit court violated
several supreme court rules by failing to provide him with a
free transcript of proceedings and his consecutive sentences
violated Apprendi. In August 2004, the circuit court
sua sponte dismissed defendant's section 2-1401
petition, finding it was frivolous and without merit.
Defendant appealed, and this court affirmed. People v.
Ryburn, 362 Ill.App.3d 870, 841 N.E.2d 1013 (2005).
Defendant filed a petition for leave to appeal to the supreme
court. On September 26, 2007, the Illinois Supreme Court
denied defendant's petition for leave to appeal but
directed this court to vacate our judgment and to reconsider
it in light of People v. Vincent, 226 Ill.2d 1, 871
N.E.2d 17 (2007). People v. Ryburn, 225 Ill.2d 666,
873 N.E.2d 932 (2007) (supervisory order). In accordance with
the supreme court's directions, this court vacated our
prior judgment, reconsidered it in light of Vincent,
and again affirmed the circuit court's dismissal.
People v. Ryburn, 378 Ill.App.3d 972, 884 N.E.2d
9 Defendant continued to file numerous motions and petitions
attacking his guilty pleas. The ones brought under the
Postconviction Act are set forth below.
10 In July 2010, defendant filed his first motion for leave
to file a successive postconviction petition, arguing,
inter alia, actual innocence based on the defense of
involuntary intoxication. The circuit court denied
defendant's motion and struck the amended motion for
leave to file a successive postconviction petition that was
filed after the court's judgment on the original motion.
Defendant appealed, but on defendant's ...