People v. Edgeston, 2-07-1195.

• Citation: 920 N.E.2d 467,336 Ill. Dec. 258,396 Ill. App. 3d 514
• Decision Date: 24 November 2009
• Docket Number: No. 2-07-1195.,2-07-1195.
• Parties: The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Ondrea EDGESTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

920 N.E.2d 467

396 Ill. App. 3d 514

336 Ill. Dec. 258

The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Ondrea EDGESTON, Defendant-Appellant.

No. 2-07-1195.

Appellate Court of Illinois, Second District.

November 24, 2009.

Charles M. Schiedel, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Springfield, for Ondrea Edgeston.

Joseph P. Bruscato, Winnebago County State's Attorney, Rockford, Lawrence M. Bauer, Deputy Director, Marshall M. Stevens, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice SCHOSTOK delivered the opinion of the court:

Defendant, Ondrea Edgeston, appeals from an order denying him leave to file a second petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)). Defendant contends that he is entitled to file the petition because (1) he is actually innocent of felony murder (Ill.Rev.Stat.1989, ch. 38, par. 9-1(a)(3)); and (2) he can satisfy the cause-and-prejudice test of section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2006)). We reverse, grant defendant permission to file the proposed petition, and remand the cause.

On March 10, 1990, Ricky Sullivan fatally shot Claire Constantine as he and defendant were burglarizing her home. A few hours later, defendant fatally shot Forest King at a different location. Defendant was tried separately for the first alleged murder (the Constantine case or this case) and the second alleged murder (the King case). In the Constantine case, defendant was convicted of felony murder based on burglary (Ill.Rev.Stat.1989, ch. 38, par. 19-1(a)) and was sentenced to 60 years in prison. In the King case, defendant was convicted and sentenced to death, with his eligibility for the death penalty based solely on one factor: that he was guilty of murdering two individuals, the other being Constantine (see Ill.Rev.Stat.1989, ch. 38, par. 9-1(b)(3)). The present appeal arises from defendant's conviction in the Constantine case, but the two cases are interrelated.

On his direct appeal in the Constantine case, defendant argued that he was innocent of felony murder. He reasoned that he had actually committed residential burglary, not burglary, and that residential burglary was not a "forcible felony" (Ill. Rev.Stat.1989, ch. 38, par. 9-1(a)(3)) that could support a conviction of felony murder. In 1993, this court affirmed defendant's conviction. We held that, although the statutory list of forcible felonies included burglary but not residential burglary (Ill.Rev.Stat.1989, ch. 38, par. 2-8), burglary was a lesser included offense of residential burglary; thus, the State properly charged defendant with burglary, and his conviction of felony murder could stand. People v. Edgeston, 243 Ill.App.3d 1, 10-11, 183 Ill.Dec. 196, 611 N.E.2d 49 (1993).

On defendant's direct appeal in the King case, the supreme court upheld defendant's conviction and death sentence. People v. Edgeston, 157 Ill.2d 201, 191 Ill.Dec. 84, 623 N.E.2d 329 (1993).

In 1994, the supreme court issued People v. Childress, 158 Ill.2d 275, 198 Ill. Dec. 794, 633 N.E.2d 635 (1994). There, the defendant had been convicted of first degree murder, burglary, and two other felonies. The supreme court vacated the conviction of burglary, explaining that residential burglary and burglary are mutually exclusive offenses and that, because the victim was murdered in her home while it was being burglarized, the defendant could have been convicted of residential burglary but not burglary. Childress, 158 Ill.2d at 302, 198 Ill.Dec. 794, 633 N.E.2d 635. The court upheld the defendant's death sentence on grounds not relevant here. However, it held that, because burglary was not a lesser included offense of residential burglary, and only burglary could support a conviction of felony murder, his death sentence could not be based on the aggravating circumstance of having committed felony murder (see Ill.Rev.Stat. 1989, ch. 38, par. 9-1(b)(6)).¹ Childress, 158 Ill.2d at 302-03, 198 Ill.Dec. 794, 633 N.E.2d 635.

In 1994, after the supreme court decided Childress, defendant filed pro se postconviction petitions in both the Constantine and King cases. In the Constantine case, his petition asserted that Childress required vacating his murder conviction. In November 1996, after the trial court appointed counsel for defendant (apparently the same attorney in both cases), defendant and the State signed an "Agreement and Waiver" (Agreement), which the court entered on November 26, 1996. Under the Agreement, defendant would receive postconviction relief in the King case and, on resentencing there, the State would not seek the death penalty. In turn, defendant promised to withdraw his postconviction petition in the Constantine case and to waive any right of appeal as to the petition.

On February 20, 2007, defendant requested permission under section 122-1(f) of the Act to file a second postconviction petition in the Constantine case. The request was accompanied by a proposed postconviction petition claiming that, under Childress, he was actually innocent of felony murder. Defendant also filed an affidavit stating as follows. Shortly after November 26, 1996, he learned of a newspaper article reporting that the State signed the Agreement out of fear that defendant's murder conviction in the Constantine case would be reversed, thus invalidating his death penalty in the King case. Defendant told his postconviction attorney about the article. The attorney responded that, if defendant withdrew from the Agreement, he would be "back on death row." The attorney did not tell defendant that, if his felony murder conviction in the Constantine case were reversed, he could not be retried for the murder of Constantine and could not receive the death penalty in the King case, as the sole qualifying factor would no longer exist.

The trial court denied defendant permission to file his second postconviction petition. Defendant appealed. On appeal, he argues that section 122-1(f) does not bar his second postconviction petition. Defendant provides two reasons: (1) he has a valid claim of actual innocence, in that Childress overruled Edgeston and must be applied retroactively to defendant's conviction of felony murder; and (2) he has met section 122-1(f)'s cause-and-prejudice test by showing that his postconviction attorney performed deficiently and that he would be prejudiced by being barred from raising his claim of actual innocence. For the reasons that follow, we agree with defendant that he should be allowed to file his second postconviction petition.²

We review de novo the denial of leave to file a second or subsequent postconviction petition. People v. Simmons, 388 Ill.App.3d 599, 606, 328 Ill.Dec. 50, 903 N.E.2d 437 (2009).

Section 122-1(f) provides:

"Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122-1(f) (West 2006).

A defendant need not satisfy the cause-and-prejudice test if he raises a claim of actual innocence. People v. Ortiz, 235 Ill.2d 319, 329-30, 336 Ill.Dec. 16, 919 N.E.2d 941 (2009); People v. Williams, 392 Ill.App.3d 359, 366-67, 331 Ill.Dec. 218, 910 N.E.2d 627 (2009); see People v. Washington, 171 Ill.2d 475, 489, 216 Ill. Dec. 773, 665 N.E.2d 1330 (1996) (judicially created cause-and-prejudice test now codified in section 122-1(f) does not apply to successive petition that raises valid claim of actual innocence). Here, defendant argues that he has raised such a claim. Defendant is correct.

As both the supreme court and this court have recognized, Childress overruled Edgeston's holding that burglary was a lesser included offense of residential burglary and thus residential burglary could support defendant's conviction of felony murder. Atkins, 217 Ill.2d at 69, 298 Ill. Dec. 50, 838 N.E.2d 943; People v. Borgen, 282 Ill.App.3d 116, 122-23, 218 Ill.Dec. 71, 668 N.E.2d 234 (1996). If Childress applies here, then defendant is innocent of the felony murder of Constantine — not because he did not commit the acts alleged, but because, as a matter of law, those acts did not amount to felony murder under the statute in effect at the time.

Childress does apply. The supreme court overruled Edgeston and like opinions (see Atkins, 217 Ill.2d at 69, 298 Ill.Dec. 50, 838 N.E.2d 943) by excluding residential burglary from the class of offenses that could support a conviction of felony murder. The change was one in the substantive law of criminal liability; therefore, defendant is entitled to its benefit. "`Illinois follows the federal rule that a decision that narrows a substantive criminal statute must have full retroactive effect in collateral attacks.'" People v. Alberts, 383 Ill.App.3d 374, 382, 322 Ill.Dec. 289, 890 N.E.2d 1208 (2008), quoting People v. Rodriguez, 355 Ill.App.3d 290, 294, 291 Ill.Dec. 214, 823 N.E.2d 224 (2005); see Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828, 838 (1998) (federal standard); Rodriguez, 355 Ill.App.3d at 294-95, 291 Ill.Dec. 214, 823 N.E.2d 224 (reasoning that, in People v. Flowers, 138 Ill.2d 218, 237, 149 Ill.Dec. 304, 561 N.E.2d 674 (1990), supreme court implicitly adopted federal standard governing retroactivity of both new procedural rules and new substantive rules). Thus, C...