Opinion
1-17-2212
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE GARCIA, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 12 CR 10991 Honorable Maura Slattery Boyle, Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Reyes and Justice Rochford concurred in the judgment.
ORDER
LAMPKIN, JUSTICE
¶ 1 Held: Trial court's order denying defendant leave to file a successive postconviction petition is reversed. This matter is remanded for defendant's motion to be docketed as a postconviction petition, and the trial court is ordered to conduct a first-stage postconviction review of the claims contained therein.
¶ 2 After a bench trial, defendant Jose Garcia was convicted of attempted first-degree murder and armed habitual criminal. On September 6, 2013, defendant was sentenced to concurrent prison terms of 45 years in the Illinois Department of Corrections for the attempted first-degree murder conviction and 10 years for the armed habitual criminal conviction. Timely notice of appeal was not filed.
¶ 3 On December 6, 2013, defendant filed an attorney-drafted postconviction petition which alleged that trial counsel failed to timely perfect defendant's right to a direct appeal. On March 25, 2014, the trial court denied the State's motion to dismiss and granted defendant leave to file a late notice of appeal. On December 11, 2015, defendant's convictions were affirmed on direct appeal. People v. Garcia, 2015 IL App (1st) 141071-U.
¶ 4 On October 4, 2016, defendant filed a "Motion for Leave to File a Successive Petition for Post-Conviction Relief." On December 16, 2016, the trial court denied defendant's motion.
¶ 5 On October 4, 2017, defendant's motion for leave to file late notice of appeal was denied for lack of jurisdiction. On March 20, 2018, our supreme court issued a supervisory order directing us to consider defendant's motion on the merits. On October 25, 2018, we vacated our previous order of October 4, 2017, and granted defendant leave to file a late notice of appeal.
¶ 6 For the reasons that follow, we reverse the trial court's order denying defendant's motion for leave to file a successive postconviction petition and remand this matter for defendant's motion to be docketed as a petition for postconviction relief and order the trial court to conduct a first-stage postconviction review of the claims contained therein.
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
¶ 7 I. BACKGROUND
¶ 8 The facts of this case have been previously recounted in defendant's direct appeal and are briefly recounted here. On May 17, 2012, at 5:30 p.m., Jeremy Spivey, the 21-year-old victim, was standing outside a store at Montrose and Kimball. As he texted on his cell phone and waved to a girl walking past, defendant ran from a gangway beside the store. He wore a black hat with a royal blue bill and the letters "KC" in white, along with a royal blue shirt, blue shorts, and black and white shoes. The victim, who had known defendant as Jose or Shadow since grade school, "focused on [defendant's] face" and saw him smile. Defendant shot the victim multiple times with a black gun from six to eight feet away. The victim fell to the ground but was alert until paramedics took him to the hospital, where he was treated for injuries to his lung, diaphragm, stomach, and left arm. At the time of trial, bullets remained lodged in his right shoulder and spine. On May 21, 2012, police officers showed the victim a photo array and he identified defendant. The victim further testified that he belonged to the Maniac Latin Disciples for four years but left the gang four years before trial. He knew that defendant belonged to a gang in May 2012 but denied having any arguments or disagreements with defendant at the time of the shooting.
¶ 9 Daniel Gutierrez testified that he managed the store on Montrose. He stated that cameras located outside the front and back of the store were functioning properly at the time of the shooting and he provided police officers with videos from both cameras. The videos were admitted into evidence and included in the record on appeal.
¶ 10 The parties stipulated that the victim was brought to the hospital in critical condition on the day of the shooting, having suffered 11 gunshot wounds, including two wounds to his left flank, one to the right side of his back, and eight to his left arm. The victim also sustained blood in his abdomen, two holes in his stomach, a hole in his diaphragm, and an injury to his colon. One bullet was removed from the victim's chest.
¶ 11 Officer Kaldis testified that on March 31, 2012, he conducted a traffic stop in Chicago during a gang investigation. Defendant, who was in the vehicle, admitted that he belonged to the Simon City Royals and used the nickname Shadow. He did not identify himself as Big Shadow or Little Shadow. Officer Kaldis identified defendant in court as the man who used the name Shadow.
¶ 12 Officer Delgado testified that he arrested defendant in Chicago on May 22, 2012.
¶ 13 The State introduced certified convictions showing that defendant was found guilty of aggravated battery with a firearm in 2007 and aggravated discharge of a firearm in 2004.
¶ 14 The court denied defendant's motion for directed finding and the defense rested.
¶ 15 The court found defendant guilty of two counts of attempted first-degree murder, four counts of aggravated unlawful use of a weapon, aggravated battery with a firearm, unlawful use or possession of a weapon by a felon and an armed habitual criminal. On September 6, 2013, defendant was sentenced to concurrent prison terms of 45 years in the Illinois Department of Corrections for the attempted murder and 10 years for the armed habitual criminal conviction.
¶ 16 Timely notice of appeal was not filed. On December 6, 2013, defendant filed an attorney-drafted postconviction petition alleging that trial counsel was ineffective for failing to file a timely notice of appeal. On March 25, 2014, the trial court denied the State's motion to dismiss and allowed defendant to file a late notice of appeal.
¶ 17 On December 11, 2015, defendant's convictions were affirmed on direct appeal. People v. Garcia, 2015 IL App (1st) 141071-U.
¶ 18 On October 4, 2016, defendant filed a 36-page handwritten pro se "Motion for Leave to File a Successive Petition for Post-Conviction Relief." The second page of the motion contained the following heading: "First Petition Versus Successive Petition." The motion averred: "[a]s a preliminary matter, Garcia asks this court to construe his successive post-conviction petition as his 'first' petition because he technically used it as a means to secure his right to appeal." In support of his claim, defendant relied on the court's holdings in People v. Anderson, 2015 IL App (2d) 140444, ¶ 8, People v. Little, 2012 IL App (5th) 100567, and People v. Hernandez, 283 Ill.App.3d 312 (1996).
¶ 19 Defendant then alleged that his claims should be judged under the standard set out in People v. Hodges, 234 Ill.2d 1, 10 (2009). His overarching claims were as follows: (1) ineffective assistance of trial counsel; (2) actual innocence; (3) improper admission of identification testimony by a police officer based on a surveillance video; (4) improper imposition of a sentence as an armed habitual criminal; (5) improper admission of hearsay testimony; and (6) ineffective assistance of direct appellate counsel.
¶ 20 Defendant provided five specific examples of how he was denied effective assistance of counsel: (1) failure to file a pretrial motion to exclude gang evidence or references; (2) failure to conduct a proper investigation into this case; (3) failure to request a "preliminary examination" before allowing identification testimony by a detective from a surveillance video; (4) failure to call an identification expert; and (5) failure to challenge defendant's eligibility to be sentenced as an armed habitual criminal.
¶ 21 A detailed argument in support of each claim of ineffective assistance of trial counsel followed, supported by proper citation to extant caselaw. Defendant's claim that counsel failed to conduct a proper investigation referenced supporting affidavits from his wife, Jeanette Garcia, and her friend, Ashley Toro.
¶ 22 With respect to his actual innocence claim, defendant averred the following:
" Garcia offers the affidavit of Yesenia Vasquez as support of his claim [of] actual innocence. This previously unknown eyewitness could not be discovered sooner because[s] he states that she left the scene shortly after the shooting because [s]he did not want to talk to the police. (See Ex. D) Garcia did not learn of this eyewitness until only recently. (Ex. A).
Yesenia Vasquez's sworn affidavit is material and non-cumulative; she avers that she was near the 'Mexican store' on Montrose and Drake on 5/17/12 where the shooting of Spivey occurred. (Ex. D) The witness saw the shooter and states with '100% certainty' that it was not the petitioner. (Ex D) His (sic) affidavit illustrates another offender who does not match Garcia. These facts and observations were not heard at trial and are therefore not cumulative.
At its essence, an actual innocence claim amounts to a denial of due process. People v. Ortiz, 235 Ill.2d 319, 333 (2009) ('The due process clause of the Illinois Constitution affords post-conviction petitioners the right to assert a freestanding claim of actual innocence based on newly discovered evidence.') In sum, the ultimate question in evaluating whether a new trial should be granted is whether the new evidence undermines confidence in the verdict. People v. Garcia, 405 Ill.App.3d 608, 615 (1st Dist. 2010).
The central issue in this case was the identity of petitioner. The State admitted that the [videotape] did not clearly show the offender's face. Spivey's identification was not wholly reliable. (See Claim I. (4) & III.). The 'likelihood of a different result' standard requires courts to compare the new evidence offered by the petitioner with the evidence presented in the original trial. People v. Edwards, 291 Ill.App.3d 476, 477 (1st Dist. 1997).
Here, Yesenia Vasquez's testimony would dispute Spivy's [sic] identification, coupled with an expert testifying at a new trial that Spivey's identification could be unreliable due to factors in psychological research there exists a reasonable likelihood that Garcia would be acquitted.
This Court should find that petitioner has demonstrated a meritorious claim of Actual Innocence based on newly discovered evidence (which can overcome any procedural bar). His due process right under Article I Sect. (2) of the Illinois [Constitution] requires an evidentiary hearing and relief under the P.C. Act."
¶ 23 Defendant also alleged that direct appellate counsel was ineffective for failing to raise the claims now raised in his motion.
¶ 24 The "Appendix" that accompanies defendant's motion references four affidavits filed in support of his motion: his own ("A"), Jeanette Garcia's ("B"), Ashley Toro's ("C"), and Yesenia Vasquez's ("D"). Defendant's affidavit, however, is the only one contained in the record on appeal.
¶ 25 In the affidavit, defendant reiterated his claim that his motion should be treated as an initial postconviction petition since his first petition only secured his right to a direct appeal. Defendant's affidavit further alleged that he told his attorney that his wife and her friend could provide an alibi. When defendant confronted counsel about his failure to contact the witnesses, counsel told him that "they wouldn't be believable because she was my wife." Defendant challenged counsel's assertion, questioning how counsel could make such a determination without speaking with the witnesses.
¶ 26 Defendant's motion also alleged that when he asked counsel if he could call an identification expert to show that he was misidentified by Jeremy Spivey that counsel told him no such expert existed.
¶ 27 On October 17, 2016, this matter appeared on the trial court's docket. The trial court asked the clerk to order the court file in this matter and continued the case to November 2, 2016. On November 2, 2016, the trial court continued the matter to November 9, 2016. On November 9, 2016, the trial court noted that it was still waiting for the clerk to order the file.
¶ 28 On November 17, 2016, the trial court spread of record that defendant was seeking leave to file a successive postconviction petition and continued the matter to December 16, 2016. On December 16, 2016, the trial court stated the following:
"THE COURT: This is in regard to Jose Garcia which was [an] attempt murder charge before me several years ago.
He has requested leave to file Successive Post Conviction. It is denied. Clerk to notify defendant."
¶ 29 For the reasons that follow, we reverse the trial court's order denying defendant leave to file his postconviction petition, remand this matter for defendant's motion to be docketed as a petition for postconviction relief, and order the trial court to conduct a first-stage postconviction review of the claims contained therein.
¶ 30 II. ANALYSIS
¶ 31 On appeal, defendant maintains that his motion for leave to file a successive postconviction petition is properly regarded as an initial postconviction petition and must be remanded for further second-stage proceedings. The State agrees that the motion should be treated as an initial postconviction petition but maintains that it should be dismissed because defendant's claims are frivolous and patently without merit. Alternatively, the State requests that we remand this case to the trial court for first-stage consideration of defendant's claims. We agree with the State's alternative prayer for relief.
¶ 32 The Post-Conviction Hearing Act provides a three-stage mechanism by which a criminal defendant may assert that his conviction resulted from the substantial denial of a constitutional right. 725 ILCS 5/122-1, et seq. (West 2016); People v. Bailey, 2017 IL 121450, ¶ 18. The Act provides criminal defendants with the means to challenge a conviction due to a violation of federal or state constitutional rights, or both. People v Holman, 2017 IL 120655, ¶ 25. To be entitled to postconviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the challenged judgment. People v. English, 2013 IL 112890, ¶ 21.
¶ 33 At the first stage in the postconviction process, the trial court must consider the defendant's petition without input from the parties. People v. Johnson, 2018 IL 122227, ¶ 14; People v. Brown, 236 Ill.2d 175, 184 (2010). The court is required to liberally construe the claims in the petition and determine whether they are frivolous or patently without merit. Id. During this stage, the trial court may review the court file, the transcripts, and any appellate court actions. Id. All well-pleaded facts are to be taken as true unless positively rebutted by the record. People v. Coleman, 183 Ill.2d 366, 385 (1998).
¶ 34 The petition may be summarily dismissed within 90 days of it being filed if the court finds that it is frivolous or patently without merit, i.e., that none of the claims have an arguable basis in law or fact. People v. Hodges, 234 Ill.2d 1, 9 (2009). A petition has no arguable basis in law or fact when it is based on an indisputably meritless legal theory or a fanciful factual allegation. Id. at 17. In making the first-stage determination, pro se petitions must be liberally construed and viewed "with a lenient eye, allowing borderline cases to proceed." Id. at 21, quoting Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983).
¶ 35 When a postconviction petition alleges ineffective assistance of counsel, the sufficiency of the petition is reviewed under the two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill.2d 504, 525-26 (1984). At the first stage, a postconviction claim of ineffective assistance of counsel may not be summarily dismissed if it is arguable that counsel's performance fell below an objective standard of reasonableness and that the defendant was prejudiced as a result thereof. Hodges, 234 Ill.2d at 17.
¶ 36 The "arguable" standard is a lower pleading standard than that for petitions at the second stage. People v. Tate, 2012 IL 112214, ¶ 20. Moreover, at the first stage the court does not consider arguments related to trial strategy in deciding whether the defendant's petition makes an arguable showing of ineffective assistance of counsel. Id. ¶ 22. This prohibition includes ineffective assistance claims based on trial counsel's failure to call certain witnesses at trial. People v. Wilson, 2013 IL App (1st) 112303, ¶ 19; People v. Coats, 2021 IL App (1st) 181731, ¶ 32.
¶ 37 If any claim in a postconviction petition survives first-stage review, the entire petition advances to the second stage. People v. Rivera, 198 Ill.2d, 364, 371 (2001). The circuit court must then determine whether the petition and attached documents make a substantial showing of a constitutional violation. People v. Domagala, 2013 IL 113688, ¶ 35. If such a showing is made, the matter is advanced to the third stage and the circuit court conducts an evidentiary hearing on the merits of the petition. People v. Pendleton, 223 Ill.2d 458, 473 (2006).
¶ 38 The Act itself contemplates the filing of a single petition where it provides that any claim of a substantial denial of constitutional rights not raised in an original or amended postconviction petition is waived. 725 ILCS 5/122-3 (West 2016). Accordingly, a defendant must obtain leave of court to file a successive petition. 725 ILCS 5/122-1 (f) (West 2016). A defendant is required to demonstrate both cause for failing to raise the claim in the initial petition and resulting prejudice from that failure. People v. Pitsonbarger, 205 Ill.2d 444, 462 (2002). The prohibition against successive filings is also relaxed under the "fundamental miscarriage of justice" exception when a defendant can show actual innocence. People v. Edwards, 2012 IL 111711, ¶ 23. "[L]eave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings." People v. Smith, 2014 IL 115946, ¶ 35.
¶ 39 We review both the denial of leave to file a successive petition and the summary dismissal of an initial postconviction petition de novo. People v. Wilson, 2014 IL App (1st) 113570, ¶ 31. When interpreting a lower court's order, a reviewing court must determine the lower court's intent and "construe the order to uphold its validity, if the wording of the order can support such a construction." People v. Lee, 344 Ill.App.3d 851, 855 (2003).
¶ 40 Under the de novo standard, a reviewing court performs the same analysis that the trial court would perform, making the question on review whether the trial court's decision was correct as a matter of law. People v. McDonald, 2016 IL 118882, ¶ 32. Because we review the circuit court's denial of leave to file a successive postconviction petition de novo, "[w]e review only the circuit court's ultimate judgment, not the reasons cited, and we may affirm on any basis supported by the record." People v. Anderson, 401 Ill.App.3d 134, 138 (2010).
¶ 41 Defendant filed a "Motion for Leave to File a Successive Petition for Post-Conviction Relief." In it, defendant maintained that his petition should be treated as an initial petition where his first postconviction petition was filed for the sole purpose of securing his right to a direct appeal. The parties agree that defendant's pro se assertion was correct. We agree.
¶ 42 In People v. Little, 2012 IL App (5th) 100547, ¶ 19, the court held that "where a defendant files an initial postconviction petition seeking only to reinstate the right to a direct appeal that was lost due to counsel's ineffectiveness, a subsequent petition is not a successive petition for purposes of section 122-1 (f)." In such cases, a second petition is subject to the same rules that apply to initial petitions. Id. ¶¶ 20-21. In other words, the petitioner is neither required to show cause and prejudice nor articulate a claim of actual innocence. Id. ¶ 21.
¶ 43 In Wilson, 2014 IL App (1st) 113570, ¶ 27, the trial court entered a written order which found that the defendant's petition was successive, that the defendant failed to meet the cause-and- prejudice test for successive petitions, and that the issues raised in the defendant's petition were "frivolous and patently without merit." In reviewing that order, the appellate court agreed with the analysis utilized in Little and found that the defendant's second petition should not have been treated as a successive petition. Id. ¶¶ 40-41. Nevertheless, the court affirmed the dismissal of the petition, finding that the defendant's ineffective assistance of appellate counsel claim lacked an arguable basis in law. Id. ¶ 49.
¶ 44 Applying Little and Wilson to this case, where defendant's first postconviction petition only sought to reinstate his right to a direct appeal, the parties correctly agree that this motion is properly regarded as an initial petition and not as a successive petition. However, the parties disagree as to what remedy, if any, is required in this case.
¶ 45 Relying on Little, defendant maintains that remand for further second-stage proceedings is required where more than 90 days have transpired since his motion was filed. In Little, the court found that remand for second-stage proceedings was required "even if by honest mistake the trial court disposes of a postconviction petition on the erroneous belief that the petition was a successive petition brought without leave of court." Little, 2012 IL App (5th) 100547, ¶¶ 23-24. As such, the court declined the State's request to independently determine whether the petition was frivolous or patently without merit. Id. ¶ 24.
¶ 46 In support of his claim that we should remand for further second-stage proceedings, defendant also relies on People v. Vasquez, 307 Ill.App.3d 670, 671-72 (1999), wherein the court held that even when a petition is dismissed within 90 days of it being filed, the 90-day period is neither extended nor tolled by the filing of a notice of appeal.
¶ 47 We agree with the State that the 90-day rule is not triggered in this case because defendant did not file a petition for postconviction relief, but a motion for leave to file a successive postconviction petition. The State's position finds direct support in People v. Anderson, 2015 IL App (2d) 140444.
¶ 48 In Anderson, the defendant filed a postconviction petition alleging ineffective assistance of counsel based on trial counsel's failure to file a timely notice of appeal. Anderson, 2015 IL App (2d) 140444, ¶ 4. The trial court dismissed the petition, and the defendant appealed. Id. After the appellate court remanded the matter for the trial court to determine the applicability of People v. Ross, 229 Ill.2d 255 (2008), the defendant was given leave to file a late notice of appeal. Id.
¶ 49 After the defendant's conviction and sentences were affirmed on direct appeal, he filed a pro se motion for leave to file a successive petition. Id. ¶¶ 5, 7. The defendant's attached petition set forth claims of actual innocence and ineffective assistance of counsel. Id. ¶ 7. The trial court denied the defendant's motion based on his failure to establish either cause or prejudice. Id.
¶ 50 On appeal from the trial court's denial of his motion, the defendant filed a motion for summary remand seeking a remand to the circuit court for second-stage proceedings under the Act. Id. ¶ 8. The defendant maintained that he did not have to establish cause and prejudice where his first petition only secured his right to a direct appeal. Id. Since more than 90 days passed from filing his motion, the defendant claimed that the matter should be remanded for second-stage proceedings. Id.
¶ 51 While the State agreed with the defendant that his successive petition should be treated as an initial filing, the State maintained that the 90-day rule did not apply because the defendant filed a motion seeking leave to file a successive petition. Id. According to the State, since the trial court denied the defendant's motion, the petition was never "filed" and the 90-day rule was not triggered. Id.
¶ 52 The appellate court agreed with the State and summarily remanded the matter to the trial court for a first-stage review of the contents of the defendant's petition. Id. ¶ 9. On remand, the trial court summarily dismissed the petition as frivolous and patently without merit. Id.
¶ 53 On appeal from the summary dismissal, the defendant maintained that the summary dismissal order was void where the trial court failed to rule on the merits of his petition within 90 days after it was originally docketed. Id. ¶ 12. The defendant relied on Vasquez and Little to support his claim that the petition advanced to the second stage under the Act as a matter of law. Id. ¶ 14.
¶ 54 The State alleged that the facts were distinguishable from those presented in Little, People v. Inman, 407 Ill.App.3d 1156 (2011), and People v. Carter, 383 Ill.App.3d 795 (2008), where the defendant himself characterized his pleading as a successive petition by filing a motion for leave to file a successive petition. Anderson, 2015 IL App (2d) 140444, ¶ 19. In contrast, in Little, Carter, and Inman, the defendants' pro se petitions were erroneously characterized as successive petitions. Id. The State maintained that the defendant's petition was never actually filed and docketed where the motion for leave to file was denied and nothing in the trial record suggested that the trial court considered the claims contained in the petition. Id. ¶ 20.
¶ 55 The court held that the defendant's claim failed under the law-of-the-case doctrine, but that even if the doctrine did not apply, the defendant's argument failed on its merits:
"Our supreme court has stated that, for purposes of the 90-day deadline for ruling on a postconviction petition, 'a successive postconviction petition will not be considered filed, as that term is used in the statute, until leave is granted; notwithstanding the circuit clerk's reception and acceptance of the petition.' People v. Tidwell, 236 Ill.2d 150, 159 (2010). (Internal quotation marks omitted.)
Therefore, defendant's petition was not 'filed' when he initially submitted the motion for leave to file a successive petition and the petition itself." People v. Anderson, 2015 IL App (2d) 140444, ¶ 34.
¶ 56 The court further agreed with the State that Little, Inman, and Carter were distinguishable where those defendants' postconviction petitions were improperly characterized as successive petitions. Id. ¶ 35. In contrast, where the trial court ruled on the Anderson defendant's motion for leave to file a successive petition, the petition was never officially docketed for purposes of triggering the 90-day rule. Id. The court found:
"We agree with the State that, even though defendant was not required to seek leave to file a postconviction petition at the time, the fact that he did so and was denied leave means that his postconviction petition was not officially docketed then. Indeed, a contrary result would encourage future defendants to improperly seek leave to file mislabeled initial postconviction petitions as a means to evade first-stage review, for if the trial courts denied leave on such motions, applying defendant's logic would automatically require these cases to be remanded for second-stage proceedings." Id.
¶ 57 We recognize that no such abuse is present in this case where defendant's motion correctly set forth the proper legal argument for treating his motion as an initial petition. It is unfortunate that the substance of defendant's motion appears to have gone unnoticed by the trial court. Nevertheless, we honor the demarcation line drawn in Anderson and find that this case falls within its ambit. The rule serves the salutary purpose of ensuring consistent application of the 90-day requirement in a manner that comports with the language of the Act.
¶ 58 Anderson does not, however, support the State's request that we dismiss defendant's petition, but does support its alternative request that we remand this matter for a first-stage review of defendant's claims. Indeed, in Anderson, this was the precise remedy imposed to redress the identical error. Anderson, 2015 IL App (2d) 140444, ¶ 9.
¶ 59 We find that the particular facts of this case provide even more basis for remanding this matter for first-stage proceedings. Although defendant's pro se motion articulated five distinct claims of ineffective assistance of trial counsel, a claim of actual innocence, additional claims of trial error and a coinciding claim of ineffective assistance of direct appellate counsel, defendant's brief only references trial counsel's failure to call an identification expert witness and trial counsel's failure to investigate alibi witnesses.
¶ 60 The State's brief provides a highly detailed response in which it maintains that both claims are frivolous and patently without merit. Regarding trial counsel's failure to investigate alibi witnesses, the State maintains that defendant's argument necessarily fails where the referenced affidavits of his wife and her friend are absent from the record on appeal.
¶ 61 With respect to this particular claim, defendant's opening brief avers that "[c]ounsel has requested a search of the court file for these missing documents and will file a motion to supplement the record with the same if and when they are located." Placed in context, it is clear that the contemplated "missing documents" are the affidavits of defendant's wife, Jeanette Garcia, and her friend, Ashley Toro. While defendant's motion to supplement the record with his own affidavit was granted after the parties filed their respective briefs in this matter, no additional motion to supplement the record with the other referenced affidavits has been filed with this Court.
¶ 62 The State's brief further acknowledges that defendant's motion raised "numerous other claims of constitutional deprivation which [defendant] has not pursued in his appellate brief." It then maintains that all remaining claims have been abandoned on appeal and may not be "resurrected" in defendant's reply brief, at oral argument, or in a petition for rehearing. In support of its claim, the State relied on People v. Villareal, 2021 IL App (1st) 181817, ¶ 26.
¶ 63 Defendant's reply brief stands on the argument made in his opening brief insofar as his two ineffective assistance of counsel claims are concerned. He offers no response to the State's charge that his second claim fails where the referenced affidavits are absent from the record on appeal. He likewise offers no answer to the State's charge that he has waived all of defendant's remaining pro se claims and does not challenge the State's reliance on Villareal to support its position.
¶ 64 Having carefully considered this matter, we do not believe that substantive consideration of the two claims raised by defendant is appropriate at this time. In stark contrast to Wilson, where the reviewing court was asked to consider the very same claim raised in the defendant's postconviction petition and reviewed by the trial court, in this case we are asked to consider only a sliver of what the State admits are unbriefed constitutional claims. Wilson, 2014 IL App (1st) 113570. To accept the State's invitation to erect the bar of forfeiture or waiver would necessarily constrict our de novo review of defendant's pro se pleading. On the other hand, substantive consideration of these arguably waived claims in the absence of any briefing by the parties would be improper. See People v. Givens, 237 Ill.2d 311, 328 (2010) (A reviewing court should refrain from raising unbriefed issues when it would have the effect of transforming the court's role from that of jurist to advocate.)
¶ 65 Either prospect is especially troubling where we agree with defendant that the trial court appears not to have reviewed any of the substantive claims contained in defendant's motion. This permits a potential outcome where the statutory requirement that "the court shall examine such petition" (725 ILCS 5/122-2.1 (West 2016)) goes unfulfilled. Prudence dictates that we follow the course of action taken in Anderson and remand this matter for first-stage proceedings. This will serve the laudable goal of ensuring defendant receives unimpeded consideration of his claims by the trial court. See, People v. Johnson, 2018 IL 122227, ¶ 24 (remanding the matter to the circuit court for its consideration of the substance of the defendant's motion to reconsider the dismissal of his postconviction petition where the trial court did not have the benefit of the court's ruling, and as such, did not reach the substance of his motion to reconsider). A remand will not leave defendant in a better or worse procedural place than he is entitled to but restore the status quo given that his many constitutional-based claims have never been subject to plenary review.
¶ 66 III. CONCLUSION
¶ 67 In conclusion, we reverse the trial court's order denying defendant's motion for leave to file his postconviction petition, remand this matter for defendant's motion to be docketed as a postconviction petition, and order the trial court to conduct a first-stage postconviction review of the claims contained therein in accordance with the requirements of the Post-Conviction Hearing Act.
¶ 68 Reversed and remanded.