Opinion filed December 30, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0082 v. ) Circuit No. 11-CF-1081 ) DEMARIUS LACARL WILLIAMS, ) Honorable ) Paul P. Gilfillan, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. Justice O’Brien and Presiding Justice McDade concurred in the judgment, and opinion. Presiding Justice McDade also specially concurred, with opinion. ____________________________________________________________________________

OPINION

¶1 Defendant, Demarius Lacarl Williams, appeals the dismissal of his postconviction petition

at the second stage of postconviction proceedings. Defendant argues that the Peoria County circuit

court violated his right to procedural due process by improperly conducting a simultaneous hearing

on postconviction counsel’s motion to withdraw and the State’s motion to dismiss the petition and

by failing to provide him with a meaningful opportunity to be heard in response to the State’s

motion to dismiss. We affirm.

¶2 I. BACKGROUND ¶3 Defendant was charged with unlawful possession of a controlled substance with intent to

deliver (720 ILCS 570/401(c)(2) (West 2010)) and unlawful possession of a controlled substance

(id. § 402(c)). Defendant filed a motion to suppress evidence on the basis that officers stopped,

searched, and arrested him in violation of his fourth amendment rights. The court denied the

motion.

¶4 The matter proceeded to a stipulated bench trial. The court found defendant guilty of

unlawful possession of a controlled substance with intent to deliver, and the charge of unlawful

possession of a controlled substance was dismissed on the State’s motion. The court sentenced

defendant to 10 years’ imprisonment.

¶5 On direct appeal, this court vacated a DNA fee that had been assessed but otherwise

affirmed the judgment of the circuit court. People v. Williams,

, ¶¶ 18-

20.

¶6 Defendant filed a postconviction petition as a self-represented litigant. In the petition,

defendant claimed that: (1) his right to due process was violated where the sentencing court

improperly considered pending cases that had not resulted in convictions in imposing its sentence;

(2) his fourth amendment rights were violated in that he was unlawfully seized, searched, and

arrested without probable cause or a warrant; (3) his trial counsel provided ineffective assistance

in failing to preserve the sentencing issue; and (4) appellate counsel was ineffective for failing to

argue that defendant’s fourth amendment rights were violated and that plain error occurred due to

the alleged sentencing error.

¶7 The court advanced the petition to the second stage of postconviction proceedings and

appointed counsel to represent defendant.

2 ¶8 Postconviction counsel filed a motion to withdraw setting forth the reasons he found each

argument set forth in the pro se postconviction petition to be meritless.

¶9 Defendant, as a self-represented litigant, filed a reply to the motion to withdraw, which set

forth the reasons why he disagreed with postconviction counsel’s assessment of the merits of his

claims.

¶ 10 Postconviction counsel filed a reply to defendant’s response. Counsel asserted that

defendant’s sentencing claim was not cognizable in a postconviction petition and that the circuit

court did not err in considering evidence of other criminal conduct at sentencing. Counsel argued

that, because this issue was meritless, trial counsel was not ineffective for failing to preserve it and

appellate counsel was not ineffective for failing to raise it on appeal.

¶ 11 On November 30, 2018, the court set the matter for a hearing on February 8, 2019, where

it would consider postconviction counsel’s motion to withdraw and the State’s anticipated motion

to dismiss.

¶ 12 On January 29, 2019, the State filed a motion to dismiss defendant’s pro se postconviction

petition. The State argued that the petition was untimely. The State also argued that defendant’s

sentencing claim was meritless because it was proper for the circuit court to consider evidence of

other crimes or misconduct at sentencing, and the claim did not present a constitutional issue that

could serve as a basis for postconviction relief. The State argued that trial counsel was not

ineffective for failing to preserve this issue and appellate counsel was not ineffective for failing to

raise it because the issue was meritless. The State also argued that defendant’s fourth amendment

claim was meritless because the stop, arrest, and search of defendant was supported by probable

cause. The State further argued that appellate counsel was not ineffective for failing to raise the

fourth amendment issue because it lacked merit.

3 ¶ 13 On February 8, 2019, a hearing was held on both postconviction counsel’s motion to

withdraw and the State’s motion to dismiss. The court first heard arguments on the motion to

withdraw. Postconviction counsel extensively set forth his arguments as to why defendant’s

claims in the pro se petition were frivolous and patently without merit. Defendant stated that he

stood by the issues he raised in his petition and in his reply to the motion to withdraw. Defendant

said: “I stated a claim and I’m pretty—there’s issues that could at least be amended. And I know

it’s not worded correctly and maybe there was another constitutional violation.” Defendant stated

that he took a stipulated bench trial under the impression that he would be able to appeal the ruling

on the motion to suppress, but he was never given that opportunity.

¶ 14 Before issuing a ruling on a motion to withdraw, the court heard arguments on the State’s

motion to dismiss. The State argued that the petition was untimely because it was filed two months

beyond the statutory time limit. The State further argued that none of the claims raised in the

petition were meritorious. The court asked defendant if he had a response. Defendant explained

that he had been working on a postconviction petition in another case and was able to begin

working on this postconviction petition after his petition in his other case was denied. Defendant

said that he had not had a chance to review the State’s motion to dismiss. Defendant said: “I

wanted to get the *** issue with my attorney first, and I was going to ask for an extension of time

to reply to the State’s motion to dismiss, give or take what happened with this motion to withdraw

as counsel.”

¶ 15 The court stated: “With regard to [defendant’s] request for more time to respond to the

motion to dismiss, it would have given me more of the same.” The court noted that many of the

State’s arguments were the same as postconviction counsel’s arguments in the motion to withdraw.

4 The court noted that the timeliness argument was new and that it had heard defendant’s response

to it. The court simultaneously granted the motion for leave to withdraw and the motion to dismiss.

¶ 16 II. ANALYSIS

¶ 17 Defendant argues that the circuit court deprived him of his right to procedural due process

by improperly conducting a simultaneous hearing on postconviction counsel’s motion to withdraw

and the State’s motion to dismiss and by failing to provide him with a meaningful opportunity to

be heard in response to the State’s motion. We find that the procedure employed by the circuit

court in this case was erroneous, but the error was harmless beyond a reasonable doubt.

¶ 18 Under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)),

imprisoned defendants may assert claims that their convictions were the result of a substantial

denial of their constitutional rights. People v. Tate,

. At the first stage of

postconviction proceedings, the circuit court must independently review the postconviction

petition and shall dismiss it if it is “frivolous or is patently without merit.” 725 ILCS 5/122-

2.1(a)(2) (West 2016). If the petition is not summarily dismissed at the first stage, it advances to

the second stage of postconviction proceedings.

¶ 19 At the second stage, counsel may be appointed to assist an indigent defendant. Tate,

. Postconviction counsel must consult with the defendant to ascertain his

contentions of deprivation of constitutional rights, examine the record of the proceedings and the

trial, and make any amendments to the pro se petition that are necessary to adequately present the

defendant’s contentions. People v. Suarez,

(2007); Ill. S. Ct. R. 651(c) (eff. July

1, 2017). If, in the course of fulfilling these responsibilities, postconviction counsel discovers

something that would ethically prevent him or her from presenting the defendant’s claims, counsel

may move to withdraw. People v. Kuehner,

. Appointed counsel bears the

5 burden of demonstrating, with respect to each of the defendant’s pro se claims, why the petition is

frivolous or patently without merit.

If the circuit court grants a motion to withdraw filed by

postconviction counsel, the court may allow the defendant to proceed as a self-represented litigant.

People v. Shortridge,

.

¶ 20 Also, at the second stage, the State may file a motion to dismiss or an answer to the petition.

People v. Domagala,

. The court must determine whether the petition and

accompanying documentation make a substantial showing of a constitutional violation. People v.

Johnson,

, ¶ 15. If the petition makes the required showing, it is advanced for a

third-stage evidentiary hearing. Id.

¶ 21 A defendant has a right to procedural due process in postconviction proceedings. People

v. Kitchen,

(1999). This right “entitles an individual to ‘the opportunity to

be heard at a meaningful time and in a meaningful manner.’ ” People v. Stoecker,

(quoting In re D.W.,

, 316 (2005)). “The fundamental requirements of due

process are notice of the proceeding and an opportunity to present any objections.” People v.

Cardona,

. “ ‘Due process is a flexible concept,’ and thus, not all

circumstances call for the same type of procedure.” Stoecker,

(quoting

People ex rel. Birkett v. Konetski,

(2009)).

¶ 22 In the instant case, the procedure employed by the circuit court deprived defendant of his

right to procedural due process because it did not provide him with a meaningful opportunity to

be heard in response to the State’s motion to dismiss. The State filed its motion to dismiss

approximately 10 days before the hearing, and defendant indicated that he had not been able to

adequately review the motion. Moreover, the procedure employed by the circuit court put

defendant in the precarious position of not knowing at the outset of the hearing whether he would

6 be required to represent himself in response to the State’s motion to dismiss. It would have been

procedurally improper for defendant to respond to the State’s motion as a litigant before his

counsel was permitted to withdraw, as a defendant represented by counsel generally has no

authority to file pro se motions. See People v. Serio,

(2005).

¶ 23 The proper procedure would have been to first rule on postconviction counsel’s motion to

withdraw. If the court granted the motion to withdraw, it should have then allowed defendant to

respond to the State’s motion to dismiss as a self-represented litigant after giving defendant

adequate notice and time to prepare. See People v. Hayes,

.

¶ 24 Having found that the procedure employed by the court deprived defendant of his right to

procedural due process, we consider the State’s argument that it amounted to harmless error.

“[T]he protection of a defendant’s right to procedural due process in post-conviction proceedings

is of critical importance.” Kitchen,

. However, there is “a strong presumption

that most errors of constitutional dimension are subject to harmless error analysis.” Stoecker,

.

¶ 25 Our supreme court recently held that the erroneous dismissal of a petition for relief from

judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016))

during an ex parte hearing was subject to harmless error analysis rather than automatic reversal.

Stoecker,

. The court found that the error was serious, but it did not “render

the proceedings automatically unfair or unreliable.” Id. ¶ 25. Similar to Stoecker, the procedural

error in this case involved a lack of a reasonable opportunity to respond to a dispositive motion in

a collateral proceeding. See id. As in Stoecker, while this error was serious, it is subject to

harmless error analysis.

7 ¶ 26 In the instant case, the erroneous procedure employed by the circuit court was harmless

beyond a reasonable doubt. Both postconviction counsel’s motion to withdraw and the State’s

motion to dismiss attacked the merit of defendant’s postconviction petition and raised the same or

similar arguments. In granting the motion to withdraw, the court necessarily found the claims

raised in the pro se petition to be meritless. Notably, defendant does not argue that he was denied

procedural due process concerning the motion to withdraw, that the motion to withdraw was

improperly granted, or that any of the claims raised in his pro se postconviction petition were

meritorious. As in Stoecker, “[r]eversal and remand would serve no purpose and would merely

delay the dismissal of the meritless petition.” Id. ¶ 33.

¶ 27 In reaching our conclusion, we acknowledge that defendant cites authority in which courts

have remanded for further proceedings based on procedural errors in postconviction proceedings.

See Kitchen,

; People v. Al Momani,

.

However, it is unclear whether harmless error arguments were made in these cases, as the courts

did not conduct harmless error analysis or discuss its potential applicability. See Kitchen,

; Al Momani,

.

¶ 28 III. CONCLUSION

¶ 29 The judgment of the circuit court of Peoria County is affirmed.

¶ 30 Affirmed.

¶ 31 PRESIDING JUSTICE McDADE specially concurring:

¶ 32 Defendant was deprived of his right to procedural due process in this case. However, I

agree with the majority’s conclusion that, under Stoecker, that error is subject to harmless error

analysis. See People v. Stoecker,

. Because the allegations contained in

defendant’s postconviction petition were without merit, Stoecker requires us to affirm the trial

8 court’s dismissal of defendant’s petition. I therefore concur in the result reached by the majority.

I write further to express my opinion that Stoecker was wrongly decided. The deprivation of due

process in this case, like that in Stoecker, was a structural error requiring automatic reversal.

¶ 33 A structural error is a “systemic error which serves to ‘erode the integrity of the judicial

process and undermine the fairness of [the proceedings].’ ” People v. Glasper,

(2009) (quoting People v. Herron,

(2005)). Structural errors require

automatic reversal. Glasper,

. The United States Supreme Court has explained

that errors are structural where their harm is unquantifiable or where they “always result[] in

fundamental unfairness.” Weaver v. Massachusetts,

, ___,

(2017). It further distinguished between an ordinary trial error and “a structural error, which

‘affect[s] the framework within which the trial proceeds,’ and, defies harmless error analysis.”

at ___,

.

¶ 34 In Stoecker, the trial court dismissed the defendant’s 2-1401 petition four days after the

State filed a motion to dismiss. Stoecker,

. Worse yet, neither the defendant

nor his attorney was even made aware of the proceeding at which the petition was ultimately

dismissed, and thus were not present.

The Stoecker court found that the trial court’s conduct

had deprived the defendant of due process, but that the deprivation was not structural error because

it did not “necessarily render the proceedings unfair or unreliable.” Id. ¶ 25. Finding the

contentions in the underlying petition to be meritless, the court concluded that “[r]eversal and

remand would serve no purpose and would merely delay the dismissal of the meritless petition.”

Id. ¶ 33.

¶ 35 “[S]ince the essence of due process is ‘fundamental fairness,’ due process essentially

requires ‘fairness, integrity, and honor in the operation of the criminal justice system, and in its

9 treatment of the citizen's cardinal constitutional protections.’ ” People v. Stapinski,

(quoting People v. McCauley,

(1994)). “The fundamental

requirements of due process are notice of the proceeding and an opportunity to present any

objections.” People v. Cardona,

.

¶ 36 Defendant in the instant case, like the defendant in Stoecker, was wholly deprived of due

process. Not only was he given a mere 10 days’ notice of the State’s motion to dismiss, but, as the

majority points out, he was procedurally barred from responding to the motion because he was

represented by counsel. After counsel’s withdrawal, defendant was forced to immediately proceed

to his objection to the State’s motion.

¶ 37 If the very nature of due process is to ensure fundamental fairness, then the complete

deprivation of that right surely undermines the fairness of the proceedings, such that it must be

considered a structural error. See Glasper,

. Forcing a defendant to proceed

on a dispositive motion by the State without sufficient notice and without meaningful opportunity

to object is always fundamentally unfair. See Weaver, 582 U.S. at ___,

.

¶ 38 I would suggest that a single such deprivation erodes the integrity of the judicial process.

See Glasper,

. Continuing deprivations of this kind in the trial court—a result

essentially authorized by the decision in Stoecker—unquestionably erodes the integrity of the

judicial process. The Stoecker court was incorrect when it stated that remand in that case “would

serve no purpose.” Stoecker,

. Remand in these cases would underscore the

importance of a defendant’s right to due process and emphasize the gravity of a deprivation of that

right. In turn, that result would serve to preserve the integrity of the judicial process by ensuring

that fewer defendants are deprived of due process.

10 ¶ 39 The error in this case, like the error in Stoecker, was a structural error, requiring automatic

reversal. However, as our supreme court has decided otherwise, I agree that affirming on harmless

error grounds is the appropriate conclusion based on the current state of the law.

11