The Bar News

Quick Take on the Illinois Supreme Court Opinion Issued Thursday, October 5

Kerry Bryson of the Office of the State Appellate Defender reviews the Illinois Supreme Court ruling in the criminal case People v. Bailey.

People v. Bailey

In 2005, Dennis Bailey was convicted of residential burglary and disarming a peace officer. Following an unsuccessful direct appeal and post-conviction petition, Bailey sought leave to file a successive post-conviction petition. The State filed a written objection, and Bailey field a written response.

The court held a hearing on the motion for leave to file; Bailey was not present and was not represented by counsel. At that hearing, the prosecutor argued that the pleadings did not satisfy the cause-and-prejudice test for filing a successive petition. The court acknowledged Bailey’s written response and denied leave to file.

Bailey challenged the State’s participation at the motion-for-leave-to-file stage of the proceedings, noting that the Post-Conviction Hearing Act does not expressly allow the State to file a responsive pleading or provide input on the court’s decision. The State argued that the Act is considered civil in nature, and parties are generally permitted to respond to motions for leave to file.

In a unanimous opinion, the Court agreed with Bailey. The Court noted the absence of language in the Act permitting the State’s participation.  The Court also looked to its prior decisions in People v. Gaultney, 174 Ill. 2d 410 (1996), and People v Smith, 2014 IL 115946. In Gaultney, the Court had concluded that the Act does not contemplate input from the parties at the first stage of post-conviction proceedings; the petition is considered independently by the court to determine whether advancement for further proceedings is proper.  In Smith, the Court held that meeting the cause and prejudice test for filing a successive petition is a question of law to be decided on the pleadings submitted by the defendant without an evidentiary hearing.

Finally, the Court noted that successive petitions are typically filed pro se, and there is no statutory provision for a defendant to obtain counsel until after a petition is docketed. Permitting the State to argue against a pro se defendant’s assertion of cause and prejudice would be inequitable and fundamentally unfair, and would raise due process concerns.

Ultimately, however, the Court concluded that Bailey was not entitled to any relief. The Court exercised de novo review over his motion for leave to file, concluded that Bailey made no effort to satisfy cause and prejudice in that motion, and thus found that leave to file was properly denied.

Today’s opinion settles the question of whether the State may participate at the motion-for-leave-to-file stage of successive post-conviction proceedings, concluding that such participation is unauthorized. Previously, several appellate districts had held to the contrary, so today’s clarification provides welcome guidance. Unfortunately for this defendant, though, there is no relief to be had because he failed to make a prima facie showing of cause and prejudice in his motion.

Posted on October 5, 2017 by Mark S. Mathewson
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