No. 1-16-1208 Opinion filed September 19, 2019

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Respondent-Appellee, ) ) v. ) No. 94 CR 26967(03) ) MITCHELL MORROW, ) The Honorable ) Evelyn B. Clay, Petitioner-Appellant. ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 Defendant, Mitchell Morrow, was convicted after a jury trial of murder and armed

robbery and sentenced to concurrent terms of 60 years for murder and 20 years for armed

robbery. On appeal, this court vacated his conviction for armed robbery.

¶2 In this appeal, defendant asks this court to reverse an order denying him leave to file a

successive postconviction petition. In his successive petition, defendant claims that his

appellate counsel was ineffective for failing to ask this court to remand for resentencing after No. 1-16-1208

we vacated his armed robbery conviction. For the following reasons, we affirm the trial

court’s denial.

¶3 BACKGROUND

¶4 This court has set forth the evidence at defendant’s trial in detail on two prior

occasions, and we incorporate those discussions here by reference. People v. Morrow,

(1999); People v. Morrow,

. In

sum, the State’s evidence at trial established that defendant was a pimp and that he shot a

customer after a physical altercation broke out between the customer and two prostitutes

inside the customer’s vehicle. The fistfight occurred because the customer realized that one

of the prostitutes was also attempting to take his wallet. After the murder, the two prostitutes,

defendant, and another pimp split equally the $160 in the customer’s wallet. On appeal, this

court reversed defendant’s armed robbery conviction, finding that there was no evidence that

defendant intended to rob the customer; rather, defendant had approached the customer’s

vehicle in response to the altercation. Morrow,

.

¶5 We describe in detail defendant’s sentencing process since defendant claims on this

appeal that the sentencing judge was unduly influenced by the subsequently vacated armed

robbery conviction when it sentenced defendant to 60 years for murder.

¶6 At the time of his sentencing, the death penalty was still available in Illinois, and the

State sought it for defendant. On April 15, 1996, defendant waived his right to a jury for his

death penalty hearing, which was subsequently held on May 28, 1996. During the first stage

of the death penalty hearing, the State introduced testimony about defendant’s age and

introduced a certified copy of his birth certificate, which established that defendant was 26 at

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the time of the offense. After listening to arguments by counsel for both sides, the trial court

found defendant eligible “for a capital sentencing hearing under Illinois law,” explaining:

“THE COURT: Considering the arguments of counsel, [defendant’s counsel],

considering the law that exists in this area, especially the law of accountability, I

think that [defendant’s] acts are well within the felony murder doctrine.

The facts here I agree do not impart the classic theory of murder in the course of

another felony, but I will not impugn the jury verdict finding [defendant] guilty of

murder and armed robbery nor will I retreat from the law in this area, the law of

accountability.

Suffice it to say I find that there is sufficient conduct to prove by the prosecution

that [defendant] is guilty of first degree murder and is accountable for the taking of

the victim’s property.

Based on the arguments made to me, I find beyond a reasonable doubt that the

defendant is eligible for a capital sentencing hearing under Illinois law.

Are the parties ready to proceed in aggravation and mitigation at this time?”

The trial court then proceeded to the second stage, where it considered factors in aggravation

and mitigation.

¶7 The State called three witnesses in aggravation. First, Dennis Dobson, a Chicago

police officer, testified that, on October 23, 1988, when he and his partner attempted to arrest

a woman for prostitution, defendant started yelling obscenities at the officers. After the

officers told him to be quiet, defendant responded “f*** you, I will kick your a***.”

Defendant was then arrested for disorderly conduct. However, defendant’s case was

subsequently dismissed.

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¶8 Ronald Behling, a Chicago police officer, testified that, on February 7, 1994, he also

arrested defendant. Defendant had been walking on the sidewalk, when he observed the

officer and subsequently dropped a plastic bag containing four foil packets of suspected

heroin. After his arrest, defendant informed the officer that the substance was “not real,” that

“he had made them up to sell again,” that it was “only Actifed,” and that “he knew he could

be killed if he got caught selling the stuff but he needed the money.”

¶9 John O’Shea, a Chicago police officer, testified that, on November 8, 1992, defendant

kicked and punched him as O’Shea attempted to arrest a prostitute. The officer held out his

badge and identification in his hand and informed defendant that he was a police officer, but

defendant responded “f*** you, I want my woman back, *** give her to me.” After other

officers arrived, O’Shea arrested both defendant and the prostitute. At the police station,

when O’Shea tried to handcuff defendant to the wall, defendant punched O’Shea repeatedly

in the face and side. Injuries to O’Shea’s side, face, and hands required O’Shea to seek

medical treatment at a hospital. Defendant also had injuries and was transported to a hospital,

where he received multiple stitches.

¶ 10 In mitigation, defendant called five witnesses. First, the defense called Lamar

Thomas, defendant’s first cousin, who testified that he had known defendant his whole life.

Thomas had worked as a police officer and detective for the Chicago Police Department for

26 years and was currently recovering from an illness. During the three years prior to

defendant’s incarceration, Thomas visited with defendant usually once a month at holidays or

family affairs. Thomas testified that defendant was “always a very polite young man,” and

that Thomas had “never seen him do anything untoward.” On cross-examination, Thomas

admitted that he was unaware that defendant was a pimp.

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¶ 11 Daisy McLendon, defendant’s sister, testified that she had been employed as a

medical assistant at a hospital for over 10 years and that she was also an ordained minister.

As a minister, she had met with defendant on a weekly basis during the last two or three

years. McLendon testified that, “since last May, following the incident, he has really made a

commitment to the Lord of his life. And he has no desire to be affiliated with any gang or any

such thing of that sort.” She further testified that “my brother while being held here at Cook

County as a prisoner was severely attacked and beaten nearly to death. He had several facial

fractures and his face was severely swollen. And this was a direct result of denying being a

part of any gang.” McLendon testified that defendant was “always very kind” and “helpful,”

but she was not aware prior to his arrest that he was a pimp.

¶ 12 Josie Bradley, defendant’s aunt, testified that, during the two or three years prior to

defendant’s arrest, she encountered defendant at family gatherings, as well as two or three

times a month. Bradley described defendant as “a kind, soft spoken young man.”

¶ 13 Ida Mae Jones, defendant’s mother, testified that defendant was “always lovely,”

never disrespectful, and was helpful around the house. Tracy Morrow, defendant’s sister,

testified that he was a “loving” brother and “always around.”

¶ 14 After both sides rested, the trial court heard arguments from counsel. The State asked

the trial court to impose the same death penalty that defendant had “imposed on [the victim]

when he killed him, for a senseless, [sic] no reason.” In contrast, defense counsel emphasized

that defendant had “only two misdemeanors, one for pimping and one for disorderly

conduct.” The trial court found:

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“Based on the arguments presented to me; based on Illinois law, confine [sic]

Illinois law to the evidence, I find that the defendant *** is 28 year[s] old; he was 26

when the acted is [sic] resulted in the death of the victim.

I find although he has had his contacts, brushes with the law in the past, he has no

significant history, prior criminal activity as contemplated by the Illinois Death

Penalty Act.

I find therefore that there is sufficient mitigation for this Court to be precluded

from imposing the death sentence. Defendant will be sentenced under ordinary

Illinois criminal sentencing law.”

¶ 15 Both counsel indicated that they had nothing further to present in mitigation or

aggravation. The State then asked the trial court to impose consecutive rather than concurrent

sentences. After listening to argument from both sides, the trial court observed, in

aggravation, that defendant’s “acts” were “senseless” and “vicious.” “An unarmed man

whose only mistake was to in a rather pathetic way look[ ] for sex for hire, was gunned down

because he attempted to rightly stop a prostitute or prostitutes from taking his property, his

wallet.”

¶ 16 In mitigation, the trial court observed:

“In mitigation, I will agree with your attorney, [defendant], that I don’t think as

you charged the [victim’s] car, you had formed a premeditated intent to take the life

of the victim ***, however when you reached the window, you realized that he, the

victim, was resisting, fighting the prostitutes; you shot him not once but at least twice,

inflicting a fatal chest wound.

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There has to be a message of deterrence, [defendant], and you at an age, in your

late 20’s, must be sentenced so that you will no longer be a threat to society when you

are released.

For the first degree murder of the unfortunate victim, ***, I sentence you to 60

years in the Illinois Department of Corrections.

For the armed robbery of [the victim], I sentence you to a concurrent term of 20

years in the Illinois Department of Corrections.

You will serve 60 years in the Illinois Department of Corrections, sir, and you can

be thankful that some day you will have a chance to walk about in society, unlike

[the] poor [victim].”

Thus, the trial court rejected the State’s request for both the death penalty and consecutive

sentences. On May 28, 1996, the trial court entered an “Order of Sentence and Commitment”

to IDOC stating that defendant was sentenced to 60 years on count I, for first degree murder,

which was to run concurrently with a sentence of 20 years for count IV, for armed robbery.

¶ 17 After sentencing, defendant filed a timely notice of appeal on June 26, 1996. Which

counsel represented defendant at what time is important to understanding certain arguments

made by the parties on the current appeal, so we provide the names of the agency and firm

here. The Office of the State Appellate Defender represented defendant on his direct appeal.

However, on March 12, 1997, the State Appellate Defender withdrew, and on March 20,

1997, the appellate court appointed Jenner & Block to represent defendant in his appeal on a

pro bono basis.

¶ 18 On March 1, 1999, this court affirmed defendant’s murder conviction and sentence

but vacated his armed robbery conviction and sentence, finding that the State had failed to

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prove beyond a reasonable doubt that defendant had any intent to rob the victim. Morrow,

. Our opinion specified that defendant was represented by R.

Douglas Rees and Kristina M. Entner of Jenner & Block. The supreme court denied

defendant’s petition for leave to appeal on June 2, 1999. People v. Morrow,

(1999) (table).

¶ 19 On April 23, 1999, which was a little over a month after this court had vacated his

armed robbery conviction, defendant filed a postconviction petition with the assistance of a

different counsel, namely, Jeffrey B. Granich. The petition was assigned to Judge John E.

Morrissey, who had presided over defendant’s jury trial and death penalty hearing and who

had sentenced defendant. On May 6, 1999, Judge Morrissey dismissed the petition.

¶ 20 However, on June 8, 1999, Granich filed a “Motion to Advance and Reconsider,”

which observed that the trial court had denied defendant’s petition on May 6, 1999, but that,

on May 19, 1999, the trial court had “advised [Granich] to advance this cause for

reconsideration.” Thus, the motion asked that defendant’s “cause be advanced and placed on

call for June 15, 1999.” In response to the State’s subsequent motion to dismiss, Granich

explained that defendant’s postconviction petition “was originally docketed without the

presence of his attorney” and the trial court had therefore granted defendant “leave to re-

docket his petition and place it back on the call for argument.”

¶ 21 On January 19, 2000, the State filed a motion to dismiss and subsequently filed a

supplement to its motion. In its supplement, the State observed, first, that it was inappropriate

for it to even be filing such a motion. The State explained that the trial court dismissed the

petition on May 6, 1999, as frivolous and patently without merit; that a trial judge is required

to make a first-stage determination without input from the State; that the May 6, 1999,

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dismissal was within these parameters; and that defendant’s only recourse then was to file a

notice of appeal. However, the State observed that, at “a subsequent [c]ourt date in June of

1999, the [c]ourt advised the People that he would entertain argument on the petition.” In its

motion, the State argued, in the alternative, that if the trial court did entertain argument,

defendant’s petition was without merit.

¶ 22 In its “Supplement to Motion to Dismiss,” the State also observed: “Here the trial

court resentenced petitioner on his murder conviction on July 27, 1999. Petitioner cannot

demonstrate how that resentencing was influenced by the armed robbery conviction vacated

by the trial court in compliance with the appellate record.”

¶ 23 A half-sheet entry on July 20, 1999, observes that the appellate court affirmed in part

and reversed in part and that “Cause remanded for a corrected mittimus before J. Morissey on

7-27-99.” A half-sheet entry for Judge Morrissey on July 27, 1999, states on one line “PP

Judgment vacated Ct 4” and on the next line “60 yrs Ct 1.” “PP” means “Parties Present.”

Count IV was the armed robbery conviction, which this court vacated, and count I was the

murder conviction. A half-sheet entry on another page, which is also for July 27, 1999, and

also for Judge Morrissey states: “PP Arm Robbery Conviction Vacated. Mitt to reissue on

sentence of 60 years. IDOC. First Degree Murder Only.” The record on appeal does not

contain a report of proceedings for July 27, 1999.

¶ 24 An “Order of Sentence and Commitment” to IDOC, dated July 27, 1999, states: “On

5-28-96 the Honorable John E. Morrissey sentenced the Deft on a verdict of guilty to a term

of 60 years.” The order lists only one offense: “First Degree Murder.”

¶ 25 A year later, on July 27, 2000, a different judge, Judge Evelyn B. Clay, heard

argument on the State’s motion to dismiss defendant’s postconviction petition. First, Granich

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explained to the new judge what had previously happened in the case. Granich explained

that, a week after the dismissal, Granich was in Judge Morrissey’s courtroom on a different

matter, when the judge asked Granich to approach the bench and “informed [Granich] that he

had reconsidered his ruling.” Judge Morrissey told Granich that “he felt it was inappropriate

to rule on a petition without” Granich and defendant “being present.” In response, Granich

filed a motion to redocket and advance the petition. Granich stated: “I believed [what] Judge

Morrissey was going to do was going to have an argument, to allow argument to determine

whether or nor an evidentiary hearing was required.”

¶ 26 With respect to the vacated armed robbery conviction, the State argued that defendant

had, in fact, been resentenced. The assistant state’s attorney did not claim personal

knowledge of this event but rather stated that he had “found it on the computer,” and that

both the computer and the half-sheets “indicate[d]” a resentencing. As a result, he argued that

there was no evidence “when [defendant] was initially sentenced, nor when he was sentenced

afterwards” that “the sentencing on the murder was *** influenced by the armed robbery.”

¶ 27 In response, Granich stated that he wanted to discuss “the resentencing issue.” He

represented to Judge Clay that, after the armed robbery conviction was reversed by the

appellate court, “[m]y client was never resentenced.” Granich then made a lengthy argument

for resentencing:

“Now, this Court knows when you are considering sentencing an individual on

two cases that are concurrent, does [one] need to say that a judge doesn’t consider one

case or the other, that there’s no inference? When you know that both cases are

running at the same time, don’t you remember both cases?

***

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I believe it’s cognizable [under the postconviction statute], Judge, because the

appellate court ruled that there was not sufficient evidence for the armed robbery.

Nobody has been able to constitutionally examine the sentence that my client

received. Whether or not that sentence was just on the murder or was it included with

the armed robbery. And that’s what I believe the post-conviction petition is for, to

bring a constitutional claim that was not recognized by the appellate court back in

front of the trial court. To go back to the trial court and say, hey, the appellate court

doesn’t agree with you on the armed robbery or doesn’t agree with the jury on the

armed robbery, is it possible, Judge, that when you sentenced my client you

considered both cases because one you should not have? *** That’s what I believe a

post-conviction petition is for. ***

I think when the judge went concurrent, the armed robbery case was part of his

thinking and part of my client’s sentence.” (Emphasis added.)

Granich ended by arguing that “this Court has the jurisdiction to re-sentence my client if this

Court chooses to do so.” He acknowledged that “this Court is in [the] particularly strange

situation of trying to come in at this late moment with a very confused record and try to

figure out what Judge Morrissey intended to do” and that “the best thing to do would be to

make up your own mind on this situation.”

¶ 28 On September 19, 2000, Judge Clay issued a written order granting the State’s motion

to dismiss defendant’s postconviction petition. In the order, Judge Clay observed that the trial

court had “summarily dismissed the petition on May 6, 1999,” but had “reconsidered its

ruling and informed defense counsel that oral argument would be allowed because the ruling

was made in the absence of both petitioner and his counsel.” Judge Clay’s order granted the

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State’s motion to dismiss without addressing the resentencing issue argued by both parties,

and defendant appealed.

¶ 29 This court observed that, on appeal, defendant “claimed that he was denied due

process by the imposition of an excessive, 60-year sentence for first degree murder because

the trial court was unduly influenced by the armed robbery conviction that was later

reversed.” People v. Morrow, No. 1-00-3878, at 4 (June 7, 2002) (unpublished order under

Illinois Supreme Court Rule 23).

¶ 30 With respect to this claim, this court found:

“Defendant *** raises the claim that he was denied due process by the imposition

of a 60-year sentence for first degree murder. In his petition, defendant raised this

claim primarily in the context of the death penalty hearing and alleged that [trial

counsel] did not request adequate time for the preparation of the presentence

investigation report. He also claimed that, although the trial court ‘clearly felt’ some

mitigating factors existed, the court based its maximum-term sentence for murder on

his involvement in the armed robbery. On appeal, defendant again asserts that the trial

court was unduly influenced by the armed robbery conviction, which was reversed,

and contends that the 60-year sentence was excessive.

However, the alleged excessiveness of defendant’s murder sentence is not

properly before this court on collateral review. Despite challenging his armed robbery

conviction on direct appeal, defendant failed to object to either the sentence imposed

for that conviction or the murder conviction. Defendant’s sentencing hearing was a

matter of record and defendant’s failure to raise any sentencing issues on direct

review thereby waived the issue from further consideration. See People v. Towns, 182

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, 503 (1998). Moreover, defendant’s sentence for murder was within the

statutory range (730 ILCS 5/5-8-1(a)(1)(a) (West 1998)), and his assertion about

factors that may have influenced the trial court was unsupported. Therefore

defendant’s due process claim amounted to nothing more than a conclusory

allegation, which was properly dismissed.” Morrow, No. 1-00-3878, at 10-11.

¶ 31 On February 11, 2010, defendant filed a pro se habeas corpus petition, which the trial

court dismissed on March 31, 2010. On December 16, 2010, this court affirmed the dismissal

on appeal. People v. Morrow, No. 1-10-1243 (2010) (unpublished summary order under

Illinois Supreme Court Rule 23(c)). In our order, we observed that the Public Defender of

Cook County, who represented defendant on appeal, had filed a motion to withdraw as

counsel pursuant to Pennsylvania v. Finley,

(1987), because he had reviewed

the entire record and concluded that there was no arguable basis for relief. We stated that we

had also carefully reviewed the record, and that we also could find no issue of arguable merit.

Thus, we allowed counsel’s motion to withdraw and affirmed the dismissal.

¶ 32 On February 15, 2011, defendant filed a pro se petition for relief from judgment

pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)).

The petition alleged that the indictment was “fatally defective as duplicitous.” On April 22,

2011, the trial court issued a five-page typed order, dismissing the petition as “frivolous and

without merit.” The trial court explained that the indictment was not duplicitous, but rather

that the “indictment charged the offense of murder in three different ways, under separate

statutes.” On December 7, 2012, in a summary order, this court observed that the State

Appellate Defender had filed a Finley motion. Counsel’s brief in support of the motion was

sent to defendant, who responded. After carefully reviewing the record, counsel’s motion and

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brief, and defendant’s response, this court granted counsel’s motion to withdraw and

affirmed the trial court in a summary order. People v. Morrow, No. 1-11-2279 (2012)

(unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 33 On December 5, 2011, while defendant’s appeal of his pro se section 2-1401 petition

was still pending, defendant filed a motion for leave to file a successive petition. The 2011

motion is not the subject of the current appeal, but rather was the subject of an earlier order

by this court. See Morrow,

. In his first proposed successive

petition, defendant argued that his appellate counsel was ineffective for not arguing on direct

appeal that defendant’s trial counsel was ineffective for failing to request second-degree

murder jury instructions. Morrow,

. On December 31, 2013,

we found that “counsel’s decision not to request a second-degree murder instruction was

appropriate as a matter of trial strategy,” and thus, we affirmed defendant’s conviction and

sentence. Morrow,

. On January 30, 2014, we denied his

petition for rehearing; on May 28, 2014, the supreme court denied his petition for leave to

appeal. People v. Morrow, No. 117413 (Ill. May 28, 2014) (supervisory order).

¶ 34 While his first motion for leave to file a successive petition was pending before this

court, defendant filed a pro se motion on March 1, 2013, for DNA and ballistics testing on

the evidence in this case. The record indicates that defendant was subsequently represented

on this matter by the Bluhm Legal Clinic at the Northwestern Pritzker School of Law. On

October 2, 2014, the trial court entered an agreed order for the requested DNA and ballistics

testing.

¶ 35 On April 1, 2013, defendant filed another pro se section 2-1401 petition, arguing that

his sentence was void because the trial court sentenced him to concurrent terms of 60 years

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for murder and 20 years for armed robbery, when consecutive terms were statutorily

required.

¶ 36 On September 5, 2013, defendant filed a second pro se motion for leave to file a

successive petition that alleged that the State knowingly presented perjured testimony at his

trial.

¶ 37 On February 13, 2014, while defendant’s petition for leave to appeal was still pending

regarding his first successive petition, defendant filed a third motion for leave to file a

different successive petition, which is the subject of this appeal. This motion and petition

were filed by counsel, namely, the Public Defender of Cook County.

¶ 38 In this motion, defendant argued through counsel that the appellate court erred by

failing to remand for resentencing when it vacated the armed robbery conviction, that

appellate counsel was ineffective for failing to ask the appellate court to remand for

resentencing, that defendant’s postconviction attorneys were ineffective for failing to raise

the ineffective assistance of appellate counsel, and that defendant’s 60-year sentence was

excessive in light of his criminal history of only misdemeanor offenses.

¶ 39 On January 28, 2016, in open court, the trial court stated: “The Court appoints the

Public Defender to represent the defendant on whatever it is that is pending.” The assistant

public defender (APD) and the assistant state’s attorney both informed the trial court that,

with respect to the prior testing order, the DNA testing was completed and both parties had a

copy of the lab report, which was also handed to the court. The APD also conceded that the

second motion for leave to file a postconviction petition, filed on September 5, 2013, was

meritless. After the DNA lab report was filed, attorneys from the Bluhm Legal Clinic moved

to represent defendant on only the DNA issue, which the trial court granted.

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¶ 40 On March 17, 2016, the trial court denied counsel’s motion for leave to file the

petition at issue on this appeal, finding that defendant could not establish either cause or

prejudice. With respect to cause, the trial court observed that defendant and his counsel had

known about the vacated robbery conviction since 1999, and with respect to prejudice, the

trial court observed that the appellate court had specifically considered whether his sentence

was excessive and rejected that claim. See Morrow, No. 1-00-3878, at 10-11 (this court’s

Rule 23 order). Therefore, the trial court found that defendant had failed to establish either

cause or prejudice and denied him leave to file the petition. On March 17, 2016, defendant

filed a notice of appeal, and this appeal followed.

¶ 41 ANALYSIS

¶ 42 Defendant appeals the trial court’s denial of his petition for leave to file a successive

postconviction petition. For the following reasons, we affirm the trial court.

¶ 43 I. Stages of a Postconviction Petition

¶ 44 Although the issue before us is the very preliminary question of whether the petition

can even be filed, we provide here a summary of the stages to show how the subsequent

process sheds light on this preliminary step.

¶ 45 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018))

provides a statutory remedy for criminal defendants who claim that their constitutional rights

were violated. People v. Edwards,

. The Act is not intended to be a

substitute for a direct appeal; instead, it is a collateral proceeding which attacks a final

judgment. Edwards,

.

¶ 46 The Act provides for three stages of review by the trial court. People v. Domagala,

. At the first stage, the trial court may summarily dismiss a petition that

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is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018); Domagala,

.

¶ 47 However, for a successive petition to even be filed, the trial court must first determine

whether the petition (1) states a colorable claim of actual innocence (Edwards,

) or (2) establishes cause and prejudice (People v. Smith,

).

This standard is higher than the normal first-stage “frivolous or patently without merit”

standard applied to initial petitions. Edwards,

; Smith,

(“the cause-and-prejudice test for a successive petition involves a higher

standard than the first-stage frivolous or patently without merit standard that is set forth in

section 122-2.1(a)(2) of the Act”).

¶ 48 Since a filed successive petition has already satisfied a higher standard, the first stage

is rendered unnecessary and the successive petition is docketed directly for second-stage

proceedings. See People v. Sanders,

(with a successive petition,

the initial issue before the trial court is whether it “should be docketed for second-stage

proceedings”); People v. Jackson,

(“When a defendant is

granted leave to file a successive postconviction petition, the petition is effectively advanced

to the second stage of postconviction proceedings.”); People v. Almodovar,

(reversing the trial court’s denial of the defendant’s motion for leave to

file a successive petition and remanding for second-stage proceedings).

¶ 49 If a trial court permits a successive petition to be filed or does not dismiss an initial

petition at the first stage, the petition then advances to the second stage, where counsel is

appointed if a defendant is indigent. 725 ILCS 5/122-4 (West 2018); Domagala,

; People v. Wrice,

(after reversing the trial court’s denial

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of leave to file a successive petition, the supreme court remanded “for appointment of

postconviction counsel and second-stage postconviction proceedings”). After counsel

determines whether to amend the petition, the State may file either a motion to dismiss or file

an answer to the petition. 725 ILCS 5/122-5 (West 2018); Domagala,

.

At the second stage, the trial court must determine “whether the petition and any

accompanying documentation make a substantial showing of a constitutional violation.”

People v. Edwards,

(2001).

¶ 50 “The second stage of postconviction review tests the legal sufficiency of the petition.

Unless the petitioner’s allegations are affirmatively refuted by the record, they are taken as

true, and the question is whether those allegations establish or ‘show’ a constitutional

violation. In other words, the ‘substantial showing’ of a constitutional violation that must be

made at the second stage [citation] is a measure of the legal sufficiency of the petition’s well-

pled allegations of a constitutional violation, which if proven at an evidentiary hearing, would

entitle petitioner to relief.” (Emphasis in original.) Domagala,

.

¶ 51 Both the second stage and a motion for leave to file a successive petition require a

review of “the petition and any accompanying documentation.” Edwards,

(second-stage review); Edwards,

(motion for leave to file a successive

petition). For the second stage not to be superfluous for a successive petition, it must be that

the “substantial showing” required at the second stage is greater than the “probability”

required for a successive petition to receive leave for filing. Smith,

(expressing a desire not to “render the entire three-stage postconviction process

superfluous”).

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¶ 52 If the defendant makes a “substantial showing” at the second stage, then the petition

advances to a third-stage evidentiary hearing. Domagala,

. At a third-

stage evidentiary hearing, the trial court acts as a fact finder, determining witness credibility

and the weight to be given particular testimony and evidence and resolving any evidentiary

conflicts. Domagala,

. This third stage is the same for both initial and

successive petitions. Cf. Smith,

(“The legislature clearly intended for

further proceedings on successive postconviction petitions.”).

¶ 53 II. Successive Petitions

¶ 54 Although our supreme court has made clear that the Act contemplates only one

postconviction proceeding, “[n]evertheless, [the supreme] court has, in its case law, provided

two bases upon which the bar against successive proceedings will be relaxed.” Edwards,

. Those two bases are (1) a showing of cause or prejudice or (2) a claim

of actual innocence. Edwards,

. In the case at bar, defendant

alleges only cause and prejudice, so we discuss only that basis below.

¶ 55 Under the cause-and-prejudice test, a defendant must establish both (1) cause for his

or her failure to raise the claim earlier and (2) prejudice stemming from his or her failure to

do so. Edwards,

(citing People v. Pitsonbarger,

(2002)).

¶ 56 Our supreme court has found that “a defendant’s pro se motion for leave to file a

successive postconviction petition will meet the section 122-1(f) cause and prejudice

requirement if the motion adequately alleges facts demonstrating cause and prejudice.”

Smith,

.

19 No. 1-16-1208

“[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

[defendant], that the claims alleged by the [defendant] fail as a matter of law or where the

successive petition with supporting documentation is insufficient to justify further

proceedings.” Smith,

.

¶ 57 As “both prongs of the cause and prejudice test must be satisfied,” we may uphold the

denial of leave to file the claim if defendant has failed to establish either prong. People v.

Davis,

(affirming the denial of leave to file where the defendant failed

to establish cause for failing to raise this claim earlier since the evidence was “not of such

character that it could not have been discovered earlier by the exercise of due diligence”).

¶ 58 III. Standard of Review

¶ 59 “The denial of a defendant’s motion for leave to file a successive postconviction

petition is reviewed de novo.” People v. Bailey,

; Wrice,

(applying a de novo standard of review to the State’s argument concerning lack

of prejudice to the defendant since these “arguments raise purely legal issues”); see also

People v. Diggins,

(applying a de novo standard of review to

the trial court’s denial of the defendant’s motion to file a successive petition alleging cause

and prejudice because this issue is “resolved on the pleadings” alone); People v. Crenshaw,

(applying a de novo standard of review to the trial court’s

denial of the defendant’s motion to file a successive petition alleging cause and prejudice).

¶ 60 In addition, when our review is limited to documentary materials, as it is here, then

our review is generally de novo. Townsend v. Sears, Roebuck & Co.,

(2007) (“Where the circuit court does not hear testimony and bases its decision on

20 No. 1-16-1208

documentary evidence, the rationale underlying a deferential standard of review is

inapplicable and review is de novo.”); Dowling v. Chicago Options Associates, Inc.,

(2007) (where the trial court did not conduct an evidentiary hearing or make any

findings of fact and relied on the parties’ oral argument and the record, “we review the

court’s ruling on this issue de novo”).

¶ 61 Thus, we apply a de novo review to defendant’s claims. De novo consideration means

that we perform the same analysis that a trial judge would perform. In re N.H.,

(citing Khan v. BDO Seidman, LLP,

(2011)).

¶ 62 IV. Prejudice

¶ 63 For the following reasons, we do not find prejudice on the record in this case.

¶ 64 In addressing this issue, we find that defendant did not, in fact, receive a second

sentencing hearing. In the record before us, we have the odd situation that the State submitted

a motion stating that defendant was resentenced, while defense counsel represented to the

trial court that his client was never resentenced after the appellate court vacated his armed

robbery conviction. We observe that the record does not contain a transcript of a second

sentencing hearing. If we had any doubts about whether there was a second sentencing

hearing, those doubts were erased by Judge Morrissey’s second sentencing order. Instead of

stating that he had resentenced defendant, his order stated only that, back “[o]n 5-28-96 the

Honorable John E. Morrissey sentenced the Deft on a verdict of guilty to a term of 60 years.”

Thus, in addressing this issue, we find that a second sentencing hearing was not held and that

there was one and only one sentencing hearing, which was the one that was held before

Judge Morrissey on May 28, 1996.

21 No. 1-16-1208

¶ 65 From the transcript of the May 28, 1996, hearing, there is simply no evidence that the

trial court took the armed robbery conviction into account when sentencing defendant

separately for the murder. The trial court rejected the State’s pleas both for the death penalty

and for consecutive sentences. However, the trial court observed that the murder was

“senseless” and “vicious.” Defendant shot an unarmed man twice, at point-blank range,

fatally shooting him in the chest. The trial court found that deterrence and the protection of

society required a 60-year sentence. Although the trial court did not mention it when

sentencing defendant, we observe that the trial court heard from a police witness who

testified that defendant had engaged in similar conduct in the past, namely, a violent assault

in an overzealous effort to protect his prostitutes. Thus, the present offense was not the first

violent assault by defendant on someone who threatened his business. As a result, we cannot

find that the armed robbery conviction influenced the trial court in its completely separate

sentence for murder, which is the same finding that this court previously made when

considering this same issue in our prior order. Morrow, No. 1-00-3878, at 10-11 (“his

assertion about factors that may have influenced the trial court was unsupported”).

¶ 66 Defendant argues that the vacated armed robbery conviction influenced the

sentencing hearing because the trial court found defendant eligible for the death penalty

based on the fact that the death occurred during a felony, namely, the armed robbery. At the

sentencing hearing, the trial court stated: “The facts here I agree do not impart the classic

theory of murder in the course of another felony, but I will not impugn the jury verdict

finding [defendant] guilty of murder and armed robbery.” The court found defendant’s

conduct “sufficient” to establish that he was “accountable for the taking of the victim’s

property.” However, despite finding defendant technically eligible, the trial court refused the

22 No. 1-16-1208

State’s request to impose the death penalty. Thus, the trial court’s eligibility finding does not

suggest that the armed robbery conviction influenced the trial court’s sentencing for the

murder conviction. In fact, there is nothing in the record of this case that would indicate or

give the impression that the armed robbery conviction had any influence whatsoever on the

sentence for first degree murder.

¶ 67 Similarly, at the sentencing hearing, the State had argued that the trial court was

required to impose consecutive sentences. However, the trial court rejected that argument as

well, finding: “If the defendant is merely accountable for the conduct of another without

doing the infliction, then I would suggest that the mandatory consecutive acts would not

apply.” The court then refused the State’s request to impose consecutive sentences. The trial

court’s comments about “not impugn[ing]” the jury’s verdict and the defendant’s being

“merely accountable” and the court’s refusal to impose a consecutive sentence for the armed

robbery further indicate that the armed robbery conviction did not influence its sentencing

decision for the murder. Thus, we are not persuaded by the defendant’s argument that the

trial court’s death-penalty eligibility finding shows that the vacated armed robbery conviction

influenced the trial court’s murder sentencing.

¶ 68 Next, defendant argues that the sentencing transcript indicates that the trial court was

influenced by the vacated armed robbery conviction because the trial court referred to

defendant’s senseless “acts,” using the plural and thereby indicating more than one act.

However, this argument overlooks the fact that defendant shot the victim twice, resulting in

the plural “acts.” Morrow,

. Also, the trial court stated

that it would “not impugn” the jury’s verdict of armed robbery on the ground that defendant

was guilty of the robbery based on the accountability theory, not his act.

23 No. 1-16-1208

¶ 69 Defendant further observes that the trial court stated: “An unarmed man whose only

mistake was to in a rather pathetic way look[ ] for sex for hire, was gunned down because he

attempted to rightly stop a prostitute or prostitutes from taking his property, his wallet.”

(Emphasis added.) Defendant emphasizes the “because” in this sentence and argues that the

trial court found the armed robbery was linked to the murder and, thus, that it must have

influenced the trial court’s sentencing decision for the murder. However, the trial court went

on to state:

“I don’t think as you charged the car, you had formed a premeditated intent to take the

life of the victim ***, however when you reached the window, you realized that he, the

victim, was resisting, fighting the prostitutes; you shot him not once but at least twice,

inflicting a fatal chest wound. There has to be a message of deterrence, [defendant], and

you at an age, in your late 20’s, must be sentenced so that you will no longer be a threat

to society when you are released.”

This statement makes clear that the trial court found that it was defendant’s desire to protect

his prostitutes, rather than a desire to rob the victim, that led to the victim’s murder. Thus, we

are not persuaded by defendant’s argument that the trial court found the armed robbery to be

a precipitating cause of the murder.

¶ 70 Since there is no evidence that the trial court was influenced by the armed robbery

conviction, we cannot find that defendant suffered prejudice from appellate counsel’s alleged

failure to raise the claim. Edwards,

(a defendant must establish both

cause and prejudice).

¶ 71 V. Cause

¶ 72 We also cannot find cause excusing the failure to raise the claim earlier.

24 No. 1-16-1208

¶ 73 As a preliminary matter, we observe that it does not appear that defendant’s counsel

on his direct appeal requested a remand for resentencing in the event that we vacated his

armed robbery conviction. In a prior order of this court, we observed: “Despite challenging

his armed robbery conviction on direct appeal, defendant failed to object to either the

sentence imposed for the conviction or the murder conviction.” (Emphasis added.) Morrow,

No. 1-00-3878, at 10-11. Thus, it appears that appellate counsel did not seek a remand for

resentencing. 1

¶ 74 However, in that same order, we also rejected almost the same claim that defendant

makes now. On April 26, 1999, which was a little over a month after this court had vacated

his armed robbery conviction, plaintiff filed a postconviction petition, with the assistance of

counsel—much like he does now. On appeal from the dismissal of that petition, this court

observed that, in that prior petition, defendant “claimed that he was denied due process by

the imposition of an excessive, 60-year sentence for first degree murder because the trial

court was unduly influenced by the armed robbery conviction that was later reversed.”

Morrow, No. 1-00-3878, at 4. In other words, he raised in that prior petition almost the same

claim that he raises now. As a result, defendant cannot possibly establish cause, i.e., a reason

for not raising earlier a claim that he needed to be resentenced, because he did, in fact, raise

earlier a claim that he needed to be resentenced.

¶ 75 Defendant raised it, and we ruled on it. We observed that defendant claimed:

“that, although the trial court ‘clearly felt’ some mitigating factors existed, the court

based its maximum-term sentence for murder on his involvement in the armed

1 In support of his contention that appellate counsel failed to seek a remand for resentencing, defendant cites only the pages in our opinion where we vacated the armed robbery conviction. Morrow,

. However, in those pages, we said nothing about whether appellate counsel did, or did not, seek such a remand. 25 No. 1-16-1208

robbery. On appeal, defendant again asserts that the trial court was unduly influenced

by the armed robbery conviction, which was reversed, and contends that the 60-year

sentence was excessive.” Morrow, No. 1-00-3878, at 10-11.

In response to this claim, we found that defendant’s “assertion about factors that may have

influenced the trial court was unsupported. Therefore defendant’s due process claim

amounted to nothing more than a conclusory allegation, which was properly dismissed.”

Morrow, No. 1-00-3878, at 10-11. His prior due process claim, like his present

ineffectiveness claim, required finding that the trial court was influenced by the armed

robbery conviction when selecting an appropriate sentence for the murder. This court could

not reach such a finding, either in our prior order in 2002 or in our opinion today. Thus, we

cannot find prejudice as we explained in the prior section, and we cannot find cause because

almost the same claim was previously raised and considered.

¶ 76 In his brief to this court, defendant argues that he could not raise the claim that his

appellate attorneys were ineffective for failing to seek a resentencing “in his initial post-

conviction petition, as it was filed while his direct appeal was still pending and would have

required him to allege the ineffective assistance of his direct appeal attorneys while they were

still representing him.” Defendant argues that he was required to file his initial petition by

May 28, 1999, and that his appeal “remained pending until the Illinois Supreme Court denied

his petition for leave to appeal on June 2, 1999.” In support of his argument, he cites People

v. Harris,

(2007).

¶ 77 Harris is inapposite. In Harris, the statute of limitations forced the defendant to file

his postconviction petition before any briefs in his direct appeal had been filed. Harris,

. Our supreme court found that he showed cause for filing a successive

26 No. 1-16-1208

petition to assert a claim of ineffective assistance of appellate counsel. Harris,

. 2 The court asked how could a defendant “argue that an attorney rendered

constitutionally ineffective assistance by failing to raise certain issues on appeal before that

attorney has raised any issues on appeal?” (Emphasis in original.) Harris,

.

The court distinguished the case before it from the case where “the appellate court had not

rendered a decision yet.” Harris,

.

¶ 78 In contrast to Harris, in the case at bar, defendant’s appellate counsel had filed a

brief, all the briefing had been completed, and this court had already rendered a decision—all

before he was required to file a postconviction petition. Thus, we do not find Harris

persuasive.

¶ 79 To the extent that defendant is arguing that an attorney cannot be expected to raise a

claim of his own ineffectiveness, the record establishes that the same attorney did not

represent defendant in both the direct appeal and the first postconviction proceeding. See,

e.g., People v. Lawton,

(2004) (“An attorney cannot be expected to argue

his own ineffectiveness.”). The record establishes that Jenner & Block was assigned to

represent defendant on a pro bono basis in the direct appeal and that Jeffrey B. Granich

represented defendant in the first postconviction proceeding. In any event, even if defendant

was represented by the same attorney in both the direct appeal and the first postconviction

proceeding, this fact would not change our finding because, as we already explained above,

there is no evidence on the record before us that the vacated armed robbery conviction

influenced the trial court’s murder sentence.

2 In Harris, the court stated, “It is difficult to conceive of a more obvious case of cause for failing to raise a claim of ineffective assistance of appellate counsel in the initial proceeding than that the statute of limitations required that the petition be filed before the defendant’s brief had been filed in the direct appeal.” Harris,

. 27 No. 1-16-1208

¶ 80 Defendant also argues in his brief to this court that defendant “had been represented

by several attorneys, none of whom recognized that this [c]ourt did not remand for

resentencing,” and that cause exists because the first attorney to realize the lack of a

resentencing was Bruce Landrum who represented defendant on this successive petition. That

is not correct. As we note above, Jeffrey B. Granich, defendant’s counsel during defendant’s

first postconviction proceeding, argued on July 27, 2000, before the trial court, for the need

for a resentencing due to the vacated armed robbery conviction.

¶ 81 Defendant also argues that he would have risked his relationship with Jenner &

Block, defendant’s counsel on direct appeal, by arguing its ineffectiveness in the

postconviction petition filed by Granich. Defendant argues that, if the Illinois Supreme Court

had granted his petition for leave to appeal (PLA), then Jenner & Block would have

continued to represent him during the same time period that his postconviction proceeding

was also going forward. The Illinois Supreme Court denied defendant’s PLA in the direct

appeal on June 2, 1999. At the direction of the trial court, the postconviction matter was

redocketed for argument on June 15, 1999, which was after the PLA had been denied. There

is no suggestion that the trial court—at whose behest the matter was being reconsidered—

would have been adverse to a motion to amend the petition. The scheduled argument was not

held until a full year later, when Granich did, in fact, argue that this issue “was not

recognized by the appellate court.” For these reasons and the circumstances unique to this

case, we do not find this argument persuasive.

¶ 82 In sum, for all the foregoing reasons, we cannot find that defendant has shown either

cause or prejudice. Without a showing of cause or prejudice, we cannot find that the trial

28 No. 1-16-1208

court erred in denying him leave to file his successive petition.

¶ 83 CONCLUSION

¶ 84 The trial court’s denial of leave to file a successive postconviction petition is affirmed

for the reasons stated above.

¶ 85 Affirmed.

29 No. 1-16-1208

No. 1-16-1208

Cite as: People v. Morrow,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 94-CR- 26967(03); the Hon. Evelyn B. Clay, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Michael Gomez, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Sara McGann, Assistant State’s Attorneys, of Appellee: counsel), for the People.

30