Opinion
No. 1-11-0217
04-12-2013
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County, Illinois.
No. 03 CR 1429
Honorable
Stanley J. Sacks,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice McBride and Justice Palmer concurred in the judgment.
ORDER
HELD: Following his conviction for first-degree murder, defendant filed a postconviction petition alleging that his trial counsel had been laboring under a conflict of interest because he was simultaneously representing various police officers, the police department, and the State's Attorney's office. The circuit court's first-stage dismissal of defendant's petition was reversed where defendant sufficiently set forth the gist of a constitutional claim. ¶ 1 Defendant Carlvosier Smith appeals from the first-stage dismissal of his petition for postconviction relief. ¶ 2 Defendant was convicted of first-degree murder and sentenced to 75 years in prison. Prior to trial, defendant moved to suppress certain inculpatory statements that he made in police custody on grounds that they were not voluntarily given. Defendant's motion was denied. ¶ 3 After his conviction, defendant filed a petition for postconviction relief, alleging that his trial counsel, Richard Beuke, had been laboring under a conflict of interest because he was simultaneously representing the Chicago Police Department, the State's Attorney's office, and various Chicago police officers who had been accused of obtaining coerced confessions. The circuit court dismissed defendant's petition as being frivolous and patently without merit. Defendant now appeals. For the reasons that follow, we reverse and remand for second-stage proceedings on defendant's petition.
¶ 4 I. BACKGROUND
¶ 5 The victim, James Armstrong, was found dead in his home on November 27, 2002, with multiple gunshot wounds to the head. Armstrong was defendant's next door neighbor. The State's theory of the case was that defendant was acting as a middleman on a drug deal between Armstrong and a man named Felix, in which Armstrong intended to purchase $50,000 worth of cocaine. However, before the deal could be finalized, defendant allegedly shot and killed Armstrong and took the $50,000 for himself. ¶ 6 Prior to trial, defendant moved to suppress certain inculpatory statements that he made in police custody on grounds that they were involuntary. Defendant now argues that the conduct of his counsel with regard to this motion is pertinent to his postconviction petition; therefore, we shall discuss it in some detail. In his motion to suppress, defendant alleged that through a series of eight interviews, the police failed to read him his Miranda rights and ignored his request to have an attorney present during their questioning of him. Defendant also alleged that the police threatened to lock up his girlfriend, Camisha Gates, and take his son away from him unless defendant gave them the statements that they wanted. ¶ 7 The trial court, per Judge Stanley Sacks, held a hearing on defendant's motion. At that hearing, the State called Detectives James Hennigan and Edward Cunningham, both of whom interviewed defendant in police custody following his arrest. ¶ 8 Detective Hennigan testified that defendant was brought into police custody on the evening of November 27, 2002. He stated that around 11:00 a.m. the next morning, defendant knocked on the door of the interview room that he was being held in and asked to talk to detectives about his case. Detective Hennigan testified that he advised defendant of his Miranda rights and then spoke with him for approximately 20 minutes. At around 4:30 p.m., Detective Hennigan spoke with the defendant again, this time in the company of Assistant State's Attorney Theodore Adams, who explained that he was a prosecutor and again advised defendant of his Miranda rights. Defendant then told Adams essentially the same thing he had told Detective Hennigan earlier that day. During these meetings with defendant, Detective Hennigan denied threatening to charge defendant's girlfriend with murder or take away his son, and he also denied hearing any such threats from Adams. He further testified that defendant never told him that he wanted to speak to a lawyer or that he did not want to speak with detectives. ¶ 9 Detective Cunningham testified that he spoke with defendant on November 29, 2002, two days after defendant was taken into custody. He stated that at around 8 a.m., the defendant knocked on the door of his interview room and said that he wanted to talk about his case. Detective Cunningham advised him of his Miranda rights, and then they spoke for about five minutes. Later that same morning, attorney Irv Miller arrived at the police station. Miller was representing the defendant in an unrelated matter. He spoke with defendant for approximately an hour, after which he informed the police that the defendant wished to exercise his right to remain silent. According to Detective Cunningham, almost immediately after Miller departed, defendant initiated a second conversation with him, saying, "I don't care what the lawyer said. I want to talk to you." Defendant then allegedly spoke about his involvement in the murder of Armstrong. Detective Cunningham denied that he threatened to charge defendant's girlfriend with murder or take away his son if defendant refused to make a statement. ¶ 10 After Detective Cunningham's testimony, the State rested. Defendant's counsel, Beuke, had defendant swear to the allegations contained in his motion to suppress. Beuke then argued that because the State had not presented testimony about all eight police interviews conducted with the defendant, the defendant's sworn allegations with regard to the remaining interviews stood unrebutted and proved that his statements were obtained illegally. Judge Sacks disagreed, stating that the allegations in defendant's motion did not constitute evidence, even when sworn to by the defendant. He commented, "[O]ne would expect good lawyers, which you both are, to be aware of procedures. I don't believe merely filing a motion saying 'I claim that's what occurred' will substitute for testimony of Carlvosier Smith, if that's what occurred." Beuke requested that the court reopen the proofs so that the defendant could testify to the allegations contained in his motion, and Judge Sacks agreed. ¶ 11 Defendant testified that over the 40-hour period where he was interrogated by police in custody, they kept him handcuffed to the wall for a majority of the time, failed to advise him of his Miranda rights, denied him food or drink, and refused to honor his repeated requests to speak with his lawyer. He also testified that Sergeant Sam Cirone "said that he would take my child away from me and he was going to lock my girlfriend up and her mother for the rest of their life and we were all going to jail for the rest of our lives." In rebuttal, Assistant State's Attorney Adams and Sergeant Cirone testified that defendant was not handcuffed, that he never requested a lawyer or mentioned being threatened, and that he was informed of his Miranda rights prior to any conversations. Judge Sacks ruled that defendant's statements were voluntary and denied his motion to suppress. ¶ 12 The case proceeded to a jury trial, which took place from November 15-21, 2006. For purposes of this order, a brief summation of the testimony will suffice. The State called defendant's girlfriend, Gates, to testify against him. Gates stated that at 5 p.m. on the day of the murder, she called the defendant, who said that he was at Armstrong's house. Approximately an hour later, she called again to ask him to pick her up from work. Defendant did so and then drove her to her mother's house. Gates testified that during the drive, defendant received a call from Charles Tate, Armstrong's cousin, who inquired whether defendant had heard from Armstrong, because Armstrong was not answering his phone or the doorbell. Defendant said that he had not heard from Armstrong since he left to pick up Gates. Gates testified that after defendant hung up, he said "Lord forgive me" and "It wasn't supposed to go down like that." ¶ 13 Gates testified that when they arrived at her mother's house, the defendant opened the trunk of the car, where there was a red bag. He told her that there was a gun inside the bag, and he instructed her to take it and hide it in the house. Gates said that she did as she was told, placing the bag behind a stuffed animal in her former room. When she returned to the car, she asked him what was going on. According to her, defendant told her that he had shot Armstrong. ¶ 14 The State also called Sergeant Cirone and Detective Cunningham to testify regarding incriminating statements allegedly made by the defendant. Sergeant Cirone testified that on the evening of November 27, 2002, the defendant and Gates were both brought to the police station in connection with the Armstrong case. Sergeant Cirone interviewed the defendant. After he advised the defendant of his Miranda rights, the defendant allegedly told him that he and Armstrong had been involved in dealing narcotics. On that particular day, they had $50,000 in cash in the apartment, and they were awaiting the arrival of a man named Felix, from whom Armstrong would commonly purchase drugs. Before Felix arrived, defendant left to pick up his girlfriend. ¶ 15 Sergeant Cirone testified that he next interviewed Gates. Following that interview, he went to the house of Gates' mother, where he found a red bag containing a large amount of cash and a gun. (The State later called a forensic scientist to testify that a bloodstain on the bag matched Armstrong's DNA profile. However, the bullets and cartridges found at his apartment did not match the gun inside the bag.) Sergeant Cirone then returned to the police station and confronted defendant with the bag. He stated that defendant initially denied knowing anything about the bag. However, in a subsequent interview, defendant told Sergeant Cirone that while he was with Armstrong in his apartment, he had been twirling a 9-millimeter handgun when it accidentally discharged and struck Armstrong. According to Sergeant Cirone, defendant said that he fired several more shots into Armstrong to make it look like a robbery and then fled with the money and Armstrong's gun. He threw away his own gun before he picked up Gates. ¶ 16 Similarly, Detective Cunningham testified that he interviewed defendant on the morning of November 29, 2002. According to Detective Cunningham, defendant said that he was with Armstrong in his apartment, awaiting the arrival of a man named Felix. He was twirling a 9-millimeter handgun, and it accidentally discharged twice, hitting Armstrong. Defendant then fired more shots at Armstrong to make it look like a robbery "so [he] could blame someone else." ¶ 17 Defendant was found guilty and sentenced to 75 years imprisonment. Defendant filed a direct appeal contending that (1) his trial counsel was ineffective for waiving closing argument and (2) the trial court failed to give the jury necessary instructions. We affirmed defendant's conviction and sentence. People v. Smith, No. 1-07-0588 (2009) (unpublished order under Supreme Court Rule 23) ¶ 18 On October 10, 2010, defendant filed a pro se petition for postconviction relief. In his petition, he contended that his trial counsel, Beuke, had been laboring under a conflict of interest while representing him at trial because Beuke was simultaneously representing Chicago police officer Jon Burge and other Chicago police officers who were accused of obtaining coerced confessions through torture and other related acts. Defendant asserted that Beuke and his law firm had been "on the payroll of the City of Chicago" from 2003 to 2010, having been retained "to defend the Chicago Police Department against any allegations of misconduct, abuse, torture, violation of State law and perjury." Defendant further stated that he believed Beuke had been representing "various and certain member" of the Cook County State's Attorney's office. ¶ 19 In support of his petition, defendant attaches a letter dated July 6, 2009, from Beuke to a man named Geoffrey Freeman. In that letter, Beuke states that he is an attorney for former Chicago police officer Jon Burge. Defendant also attaches copies of two online news articles concerning Jon Burge. The first article is dated April 1, 2010, and states that Jon Burge was indicted on charges of perjury and obstruction of justice in October 2008 and is being represented by Beuke. The second article, dated May 26, 2010, states that the perjury charges against Jon Burge stem from allegations that he lied about torture that occurred in the 1970s and 1980s. Beuke is not mentioned in this second article. ¶ 20 Defendant additionally attaches his own affidavit. In that affidavit, he states that subsequent to his trial, he learned that Beuke had been representing "the City of Chicago, Chicago Police Department, as well as the State's Attorney of Cook County in matters concerning Jon Burge and Associates" since 2003, the year in which defendant first retained Beuke. Regarding the source of this information, defendant states:
"7. That upon my inquiring of Richard Beuke as to whether he represented the City of Chicago and the Chicago Police Department after my trial, I was told by Richard Beuke that who he represented was none of my business.Defendant additionally states that he discovered an "internet generated document" stating that Beuke represented Jon Burge, but he admits that the document did not indicate how long the representation had been going on or who else Beuke may have represented. ¶ 21 Defendant's postconviction petition came before Judge Sacks, the same judge who presided over defendant's trial. Judge Sacks found that defendant's allegation that trial counsel was laboring under a conflict of interest was "entirely conclusory" and further stated, "The petition is devoid of any facts supporting petitioner's contention." The circuit court therefore dismissed defendant's petition as frivolous and patently without merit. Defendant now appeals.
8. That Richard Beuke further stated that everyone is entitled to a defense in court, even the Chicago Police and State's Attorney's. [sic]
9. That I understood that response to represent a 'yes' to his representing both parties."
There is no indication in the record that Jon Burge was personally involved in defendant's case, in his capacity as a police officer or otherwise.
Defendant also argued that he was entitled to relief because his trial counsel was not aware, until Judge Sacks informed him, that defendant's swearing to the allegations in his motion to suppress was not a substitute for defendant's testimony. However, defendant does not raise this issue on appeal.
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant contends that the circuit court erred in summarily dismissing his postconviction petition. He therefore requests that we reverse the circuit court's dismissal and remand for second-stage proceedings on his petition. Defendant also requests that his petition be 10 assigned to a different judge on remand, contending that Judge Sacks applied the wrong standard to his petition and wrongly prejudged the issues contained therein. ¶ 24 At the first stage of proceedings on a postconviction petition brought under the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2004)), the circuit court independently reviews the petition and summarily dismisses it if the court finds it to be "frivolous or *** patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2010). At this stage, the petitioner need only present the " 'gist of a constitutional claim' " to avoid dismissal. People v. Edwards, 197 Ill. 2d 239, 244 (2001) (quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1986)). In addition, because petitioner has not yet been afforded an evidentiary hearing, we are to take all well-pleaded allegations in the petition as true and liberally construe them in favor of petitioner. People v. Brooks, 233 Ill. 2d 146, 153 (2009); People v. Coleman, 183 Ill. 2d 366, 380-81 (1998) (circuit court is foreclosed from engaging in any fact-finding at the first stage of postconviction proceedings). We review the summary dismissal of a postconviction petition de novo. Coleman, 183 Ill. 2d at 388-89. ¶ 25 In this case, defendant's petition alleges that he is entitled to a new trial because his trial counsel was laboring under a conflict of interest. Specifically, defendant claims that from 2003 to 2006, the period during which he retained Beuke in connection with this case, Beuke also represented former Chicago police officer Jon Burge, the Chicago Police Department, and various unnamed members of the State's Attorney's Office. In response, the State contends that the documents presented by the defendant in support of his petition are insufficient to prove his allegations, and the circuit court was therefore correct in summarily dismissing his petition. 11 ¶ 26 Every criminal defendant is guaranteed the right to effective assistance of counsel, and inherent in this right is the principle that the defendant is entitled to the undivided loyalty of counsel, free from any conflict of interest. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Holloway v. Arkansas, 435 U.S. 475, 489-91 (1978) (defense counsel's joint representation of conflicting interests requires reversal even where no particular prejudice is shown and the defendant is clearly guilty); People v. Hernandez, 231 Ill. 2d 134, 142 (2008). Our supreme court has identified two categories of conflicts of interest: per se and actual. People v. Taylor, 237 Ill. 2d 356, 374 (2010). A per se conflict of interest arises where the defendant's attorney has a tie to a person or entity that would benefit from an unfavorable verdict for the defendant. Hernandez, 231 Ill. 2d at 142. Courts have identified three situations in which a per se conflict exists: (1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution, (2) where defense counsel contemporaneously represents a prosecution witness, or (3) where defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant. Taylor, 237 Ill. 2d at 374; Hernandez, 231 Ill. 2d 143-44. Such a conflict is grounds for automatic reversal, even if defendant cannot show that his attorney's actual conduct was in any way affected by the conflict. Taylor, 237 Ill. 2d at 374-75; People v. Washington, 101 Ill. 2d 104, 110 (1984); see Holloway, 435 U.S. at 489-91. By contrast, an actual conflict of interest exists where there is "some specific defect in [defense] counsel's strategy, tactics, or decision making attributable to the conflict." Taylor, 237 Ill. 2d at 376. ¶ 27 In the present case, taking all well-pleaded allegations in defendant's petition as true and 12 liberally construing them in favor of defendant (see Brooks, 233 Ill. 2d at 153; Coleman, 183 Ill. 2d at 380-81), we find that defendant has presented the gist of a claim that his trial counsel was acting under a per se conflict of interest. See Edwards, 197 Ill. 2d at 244 ("gist" standard is a low threshold that only requires petitioner to present a limited amount of detail). If, in fact, defendant's attorney also served as counsel for the Chicago Police Department and the State's Attorney's Office at the time of defendant's trial in 2006, it would raise the possibility that his loyalty to the defendant would have been compromised by his conflicting obligations. ¶ 28 The case of Washington, 101 Ill. 2d at 112, is analogous. In that case, the court held that a per se conflict of interest existed where the defendant's attorney also served as a prosecutor for the municipality. Id. at 113. The court found it significant that the State called a police officer from the municipality to establish that there was probable cause for the defendant's arrest. Id. at 109. Thus, defense counsel was obliged "to oppose and to attempt to discredit a police officer and representative of the municipality he was serving as its prosecutor," which might have impacted his duty of undivided loyalty to the accused. Id. at 112-13; see also People v. Fife, 76 Ill. 2d 418, 424-25 (1979) (per se conflict of interest existed where defense counsel was also employed part-time by the State as special assistant Attorney General). Similarly, in the instant case, the prosecution called multiple police officers to testify against defendant, both at the suppression hearing and at the actual trial. Defense counsel's duty to attempt to discredit those officers might arguably have been affected if, as defendant alleges, he was simultaneously retained by the Chicago Police Department and the State's Attorney's Office. ¶ 29 Defendant also argues that his trial counsel's performance was adversely affected by his 13 conflicting loyalties, so as to create an actual conflict of interest. We need not rule upon this issue, because we have already found that defendant has adequately stated the gist of a per se conflict of interest. However, we note in passing that defendant cites two incidents in the record which, according to him, arguably demonstrate a "specific defect in his counsel's strategy, tactics, or decision making attributable to the conflict" (Taylor, 237 Ill. 2d at 376). First, during the hearing on defendant's motion to suppress, Beuke initially sought to rely on defendant's sworn allegations, rather than having defendant testify to the allegedly coercive interrogation tactics of the police. It was only after Judge Sacks told him that defendant's sworn allegations would not constitute evidence that Beuke requested that defendant be allowed to testify. Defendant argues that Beuke's initial decision to present only his sworn allegations may have been due to a "subliminal reluctance" to present evidence directly challenging the actions of the police. See People v. Kester, 66 Ill. 2d 162, 167 (1997) (conflict of interest existed where defense counsel was formerly a prosecutor in earlier proceedings against defendant, because counsel's performance may have been "affected by a subliminal reluctance to attack pleadings or other actions and decisions by the prosecution"); Washington, 101 Ill. 2d at 113 ("The concern here, too, is the subtle and subconscious pressure the suggested conflict may have had on counsel."). Defendant also argues that such "subliminal reluctance" surfaced a second time when Beuke chose to waive closing argument at his trial. ¶ 30 Notwithstanding the foregoing, the State argues that dismissal of defendant's petition was proper because defendant failed to present sufficient affidavits and exhibits to prove his claims. In particular, the State argues that although defendant's exhibits state that Beuke represented 14 former Chicago police officer Jon Burge, who had no personal connection with defendant's case, the exhibits make no reference to any representation of the Chicago Police Department or the State's Attorney's Office. The State also argues that the exhibits are dated from 2009 and 2010, while defendant's trial was years earlier, in 2006. Finally, with regard to the news articles cited by the defendant, the State argues that such articles are " 'often, if not notoriously, apt to be inaccurate.' " McCall v. Devine, 334 Ill. App. 3d 192, 203 (2002) (quoting R. Steigmann, Illinois Evidence Manual § 14:28, at 365 (2d ed.1995)). ¶ 31 In making these arguments, the State has misapprehended the standard to be applied at the first stage of postconviction proceedings. As has been discussed, at the first stage of postconviction proceedings, the petitioner does not need to prove his claim. Rather, our supreme court has repeatedly emphasized that the petitioner need only present a gist of a constitutional claim to survive summary dismissal. Edwards, 197 Ill. 2d at 244; Coleman, 183 Ill. 2d at 382; Gaultney, 174 Ill. 2d at 418. Furthermore, at this stage, the circuit court is not to engage in any factfinding regarding the accuracy of the petitioner's supporting affidavits and exhibits. Coleman, 183 Ill. 2d at 382 (citing People v. Wegner, 40 Ill. 2d 28, 31-32 (1968), for the proposition that factual disputes raised by the pleadings require a determination of the truth or falsity of the supporting affidavits or exhibits, which cannot be made at the summary dismissal stage). While we make no comment as to whether defendant's allegations are sufficient to ultimately entitle him to a new trial, they are sufficient to meet the lenient "gist" standard as it has been described by our supreme court. ¶ 32 In this regard, we find our supreme court's decision in Edwards, 197 Ill. 2d at 244-45, to 15 be instructive. In Edwards, the court rejected the notion that a petitioner at the first stage of postconviction proceedings must allege "sufficient facts" which, if true, would demonstrate that he had been deprived of his constitutional rights. The court explained: "On its face, the 'sufficient facts' test requires a pro se defendant to file a factually complete petition at the first stage of the post-conviction proceedings. In other words, the defendant must allege facts that would support all the elements of a constitutional claim. *** However, requiring this type of full or complete pleading is contrary to this court's holding that the pro se defendant 'need only present a limited amount of detail' [citation] to survive summary dismissal at the first stage of the post-conviction proceedings. It is also at odds with the 'gist' standard itself since, by definition, a 'gist' of a claim is something less than a completely pled or fully stated claim. Further, the 'sufficient facts' test imposes too heavy a burden on the pro se defendant. While in a given case the pro se defendant may be aware of all the facts pertaining to his claim, he will, in all likelihood, be unaware of the precise legal basis for his claim or all the legal elements of that claim. In many cases, the pro se defendant will be unaware that certain facts, which in his mind are tangential or secondary, are, in fact, critical parts of a complete and valid constitutional claim. Under the 'sufficient facts' test, however, the pro se defendant must recognize the facts that need to be pled to support a 'valid claim.' This is an unrealistic requirement." Id. at 244-45 (citing Gaultney, 174 Ill. 2d at 418). 16 Just as a pro se defendant does not need to allege "sufficient facts" at the first stage of postconviction proceedings, a defendant also does not need to present affidavits and exhibits that contain "sufficient facts" to establish every element of his constitutional claim. Such an approach would be flatly inconsistent with our supreme court's decision in Edwards. ¶ 33 At this juncture, we note that defendant will eventually need to prove the allegations in his complaint in order to obtain the relief that he seeks. However, the time to require such proof is not now, at the pleadings stage, where defendant has not yet been appointed counsel and the circuit court is not yet permitted to engage in factfinding. Coleman, 183 Ill. 2d at 380-81. The State's factual concerns about whether Beuke was actually representing the Chicago Police Department and the State's Attorney's Office, and, if so, whether such representation occurred during the same period that Beuke was representing the defendant, can only be addressed at a later stage in the proceedings. ¶ 34 Thus, for the foregoing reasons, we reverse the judgment of the trial court and remand for second-stage proceedings on defendant's postconviction petition. ¶ 35 On remand, defendant requests that his case be assigned to a different judge. He argues that substitution of judge is appropriate because Judge Sacks applied the wrong standard to his first-stage petition and wrongly prejudged the issue raised in his petition. ¶ 36 A defendant has no right to a substitution of judge at a postconviction proceeding. People v. Hall, 157 Ill. 2d 324, 331 (1993). On the contrary, the judge who presided over a defendant's criminal trial should hear his postconviction petition unless it is shown that the judge is "substantially prejudiced." People v. Harvey, 379 Ill. App. 3d 518, 522 (2008). Rarely, if 17 ever, will a judge's prior rulings in the case form the basis for recusal. Id. (citing Liteky v. United States, 510 U.S. 540, 555 (1994) (judicial rulings are "[a]lmost invariably" grounds for appeal rather than recusal)); People v. Vance, 76 Ill. 2d 171, 178 (1979) (prior adverse rulings against a defendant do not disqualify a judge from sitting in subsequent cases in which defendant is a party). Rather, a defendant seeking to obtain a substitution of judge must show "something more," such as "a showing of animosity, hostility, ill will, or distrust" towards him. Id. at 181. In the present case, defendant has made no such showing, nor does our review of the record substantiate any such claim. ¶ 37 Defendant nevertheless argues that the instant case is analogous to People v. Reyes, 369 Ill. App. 3d 1, 25-26 (2006), where the appellate court not only reversed the circuit court's summary dismissal of defendants' postconviction petitions, but also directed that their petitions be remanded to a different trial judge. The Reyes court found that the trial judge had improperly prejudged the ultimate issue in the case by stating that the evidence raised by defendants in their petitions was "not so conclusive as to change the result on retrial." Id. In the present case, although the trial judge does appear to give undue weight to the factual support for defendant's claims, we do not find that he has similarly prejudged the ultimate issue in the case. Consequently, defendant's request for reassignment to a different judge is denied. ¶ 38 Finally, the State requests that this court require defendant to pay costs and a fee of $100 to the State for having to defend this appeal. In support, the State cites People v. Nicholls, 71 Ill. 2d 166, 174 (1978), in which the court held that the State is authorized by statute to recover attorney fees as costs in the appellate court against "an unsuccessful criminal appellant upon 18 affirmance of his conviction." See 725 ILCS 5/110-7(h) (West 2004), 725 ILCS 130/13 (West 2004); 55 ILCS 5/4-2002.1 (West 2004). However, since we are reversing the summary dismissal of defendant's postconviction petition, defendant is not an unsuccessful criminal appellant, and recovery of costs is not warranted. ¶ 39 Reversed and remanded.