Opinion
4-21-0382
09-21-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAYSON J. JOHNSON, 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 Champaign County No. 12CF1154 Honorable Randall B. Rosenbaum, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Harris and Zenoff concurred in the judgment.
ORDER
TURNER JUSTICE.
¶ 1 Held: Defendant forfeited his argument the circuit court erred in denying his petition for leave to file a second successive postconviction petition.
¶ 2 On March 22, 2021, defendant Jayson J. Johnson filed a motion for leave to file a successive postconviction petition. On June 10, 2021, the trial court denied defendant's motion. Defendant appeals, arguing the trial court erred in denying his motion for leave to file a successive postconviction petition. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On July 18, 2012, defendant was arrested in this case (Champaign County case No. 12-CF-1154). He posted bond on July 20, 2012. On July 31, 2012, defendant was arrested in a separate case (Champaign County case No. 12-CF-1234). Although defendant was in custody for the charges in case No. 12-CF-1234, he remained on bond in this case until after he was found guilty of the charged offenses.
¶ 5 At the sentencing hearing in this case, the parties initially agreed defendant should receive 446 days of pretrial custody credit. However, the trial court later realized defendant had not surrendered his bond in this case. As a result, the court determined defendant was only entitled to 46 days of credit for a period after his bond was revoked.
¶ 6 In his direct appeal, defendant argued his trial counsel was ineffective for not surrendering his bond because it deprived him of pretrial custody credit. On September 1, 2015, this court entered an order affirming defendant's convictions and declining to address the merits of defendant's ineffective assistance of counsel claim, holding the claim was best suited to be raised in a postconviction petition. People v. Johnson, 2015 IL App (4th) 131056-U, ¶¶ 49-52.
¶ 7 When this court issued its order on September 1, 2015, defendant had already filed a pro se postconviction petition on June 6, 2015, which did not include his claim his trial counsel was ineffective for not surrendering his bond. On September 2, 2015, defendant's postconviction petition was summarily dismissed. Defendant appealed the summary dismissal and argued his trial attorney was ineffective for not surrendering his bond. This court determined it could not address this claim because defendant had not included the claim in his pro se postconviction petition. People v. Johnson, 2017 IL App (4th) 150753-U, ¶¶ 31-32. According to defendant's brief, this court also cited People v. Clark, 2014 IL App (4th) 130331, 15 N.E.3d 539, as being fatal to defendant's sentencing claim.
¶ 8 On January 30, 2017, defendant attempted to file a successive postconviction petition asserting actual innocence. On March 23, 2017, the circuit court dismissed the petition stating:
"The petitioner has failed to establish that the evidence he is relying on
constitutes new, material and non-cumulative evidence, and failed to establish that the evidence he asserts in support [of] his claim is of such a conclusive character as would probably change the result on retrial. Therefore, his actual innocence claim is frivolous and patently without merit[.]"
¶ 9 Defendant appealed the dismissal, and this court affirmed. People v. Johnson, 2019 IL App (4th) 170278-U, ¶ 23.
¶ 10 On March 22, 2021, defendant filed the motion for leave to file a successive postconviction petition at issue in this case. Defendant claimed his trial counsel was ineffective for failing to surrender his bond. In the motion, defendant indicated he raised this issue on direct appeal, but the appellate court declined to address it because the issue could be better addressed in a postconviction proceeding. Johnson, 2015 IL App (4th) 131056-U, ¶ 52. Defendant asked the circuit court to allow his motion for leave to file the successive postconviction petition as a matter of fundamental fairness because he lost sentencing credit as a result of his trial counsel's ineffectiveness.
¶ 11 On June 10, 2021, the circuit court denied defendant's motion for leave to file a second successive postconviction petition.
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 According to defendant, the circuit court erred in denying his motion for leave to file a successive postconviction petition. The Postconviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) contemplates the filing of only one postconviction petition. People v. Bailey, 2017 IL 121450, ¶ 15, 102 N.E.3d 114. Specifically, section 122-3 of the Act (725 ILCS 5/122-3 (West 2020)) declares "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." Section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2020)) represents an exception to the waiver rule (Bailey, 2017 IL 121450, ¶ 15), stating:
"Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122-1(f) (West 2020).
Thus, for a defendant to obtain leave to file a successive postconviction petition, both prongs of the cause-and-prejudice test must be satisfied. People v. Guerrero, 2012 IL 112020, ¶ 15, 963 N.E.2d 909.
¶ 15 With a motion for leave to file a successive postconviction petition, the court is just conducting "a preliminary screening to determine whether defendant's pro se motion for leave to file a successive postconviction petition adequately alleges facts demonstrating cause and prejudice." Bailey, 2017 IL 121450, ¶ 24. The court is only to ascertain "whether defendant has made a prima facie showing of cause and prejudice." Bailey, 2017 IL 121450, ¶ 24. If the defendant has done so, the court should grant the defendant leave to file the successive postconviction petition. Bailey, 2017 IL 121450, ¶ 24.
¶ 16 As cause for not raising this issue in his initial postconviction petition, defendant notes he raised the issue on direct appeal before this court issued its ruling in People v. Blair, 2015 IL App (4th) 130307, 44 N.E.3d 1073, on June 30, 2015. In Blair, this court stated:
"Although we can identify no apparent reason in the record for trial counsel's failure to withdraw defendant's bond in the instant case, the lack of such evidence does not foreclose the possibility that counsel had a legitimate reason for not withdrawing defendant's bond. Thus, we decline to rule on defendant's ineffective assistance of counsel claim as it would be better brought under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2012)) where an adequate record can be developed." Blair, 2015 IL App (4th) 130307, ¶ 47.
Defendant also notes he filed his initial postconviction petition on June 9, 2015, which was also before this court decided Blair. Citing People v. DuPree, 353 Ill.App.3d 1037, 820 N.E.2d 560 (2004), and People v. Centeno, 394 Ill.App.3d 710, 916 N.E.2d 70 (2009), defendant contends he had every reason to believe his claim had been properly raised on direct appeal when he filed his first postconviction petition.
¶ 17 The State argues defendant did not have cause to file a successive petition because nothing prohibited him from raising this issue in his first postconviction petition. However, in his reply brief, defendant notes this court stated in its ruling affirming defendant's conviction in his direct appeal that defendant's ineffective assistance claim was better suited to be raised in a postconviction petition where a more adequate record could be developed. Johnson, 2015 IL App (4th) 131056-U, ¶¶ 49-52.
¶ 18 However, defendant ignores the fact he did not raise this issue in his first successive postconviction petition, which he filed on January 30, 2017, after this court's order was filed in defendant's direct appeal on September 1, 2015. The circuit court in denying defendant's petition for leave to file a successive postconviction petition stated:
"Defendant has filed two previous Post-Conviction Petitions and did not raise the current issue in either one, despite being well aware of the issue and after suggestion from the Appellate Court to raise the issue. Defendant therefore fails to establish cause for not raising the current issue in his original or second Petitions."
Because defendant failed to address this part of the trial court's reasoning for determining defendant failed to establish cause, defendant forfeited on appeal his argument the circuit court erred in denying his petition for leave to file a second successive postconviction petition. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020). This court is not a depository for an appellant to dump the burden of argument and research. People v. Pope, 2020 IL App (4th) 180773, ¶ 75, 157 N.E.3d 1055.
¶ 19 III. CONCLUSION
¶ 20 For the reasons stated, we affirm the circuit court's ruling denying defendant's petition for leave to file a second successive postconviction petition.
¶ 21 Affirmed.