People v. Tripp, 1–09–3337.
| Decision Date | 17 February 2011 |
| Docket Number | No. 1–09–3337.,1–09–3337. |
| Citation | 944 N.E.2d 405,348 Ill.Dec. 452,407 Ill.App.3d 813 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Victor TRIPP, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Rachel Moran, Assistant Appellate Defender, Chicago, IL, for Petitioner–Appellant.Anita Alvarez, State's Attorney, Alan Spellberg, Douglas Harvath, Joseph M. Preiser, ASA's of Counsel, Chicago, IL, for Respondent–Appellee.
Here, we consider the second petition for postconviction relief of a defendant convicted of armed robbery. Following a jury trial, defendant was sentenced to four concurrent terms of 55 years' imprisonment for armed robbery in violation of section 18–2 of the Criminal Code of 1961 (720 ILCS 5/18–2 (West 1992)). As grounds for relief, defendant contends that the trial court erred in denying him leave to file a successive postconviction petition in light of the United States Supreme Court's decision in Arizona v. Gant, 556U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). For reasons detailed below, we affirm the trial court.
On November 29, 1995, defendant and two others robbed a jewelry store located in southwest Chicago at gunpoint. Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, arguing that the officers lacked probable cause to search a footlocker found in the backseat of defendant's car at the time of his arrest. At a hearing on the motion, defendant testified that he was standing at the corner of Douglas Boulevard and Sawyer Street in Chicago speaking to Germaine Johnson, a codefendant. Defendant testified that he was legally parked on Sawyer, facing south on the east side of the street, near the curb, approximately 10 feet from the intersection. Defendant and Johnson talked on the corner for approximately 40 minutes before police arrived. Defendant was about 12 feet from his car when he was arrested and was never in the car while police were at the scene.
The State called officer Michael Soto, who testified that he was on patrol with his partner driving southbound on Sawyer near the intersection of Douglas when he observed a car obstructing traffic on Sawyer. The car, occupied by two black males, was parked in the middle of the street. Officer Soto activated his car's emergency equipment, exited the car, and approached the driver's side of the other car. Officer Soto asked the driver of the car, later identified as defendant, for his license and proof of insurance. When defendant stated he did not have those items, Officer Soto asked him to exit the vehicle and placed him under arrest. After defendant exited the vehicle, with his passenger still in the front seat, Officer Soto noticed a handgun between the two front seats. Officer Soto's partner then instructed the other passenger, later identified as Johnson, to exit the car and both were handcuffed and placed in the officers' squad car. After Officer Soto seized the weapon, he performed a search of the car and recalled that defendant and Johnson partially fit the description of two of the three people who had robbed a jewelry store earlier that day. When Officer Soto searched the car, he discovered gray duct tape, similar to the type used to bind the
[348 Ill.Dec. 455 , 944 N.E.2d 408]
victims of the robbery, and a large footlocker. Officer Soto and his partner removed the footlocker, pried open its side and saw “numerous amounts of jewelry.” Officer Soto also recovered $1,000 in currency, a gold money clip, a gold chain, and several keys from defendant. Officer Soto's partner recovered a gold chain and two gold medallions from Johnson. After hearing the parties' arguments, the trial court denied the motion to suppress, finding that the officers had probable cause to search the car.
On direct appeal to this court, defendant asserted that the trial court erred in denying his motion for a directed finding and his motion to suppress, and that his sentence was excessive, all of which were rejected by this court in a published opinion. People v. Tripp, 306 Ill.App.3d 941, 240 Ill.Dec. 2, 715 N.E.2d 689 (1999). Shortly thereafter, our supreme court denied defendant's petition for leave to appeal. People v. Tripp, 185 Ill.2d 661, 242 Ill.Dec. 149, 720 N.E.2d 1104 (1999). Defendant then filed a pro se postconviction petition asserting that this court erred when it considered new arguments presented by the State on appeal which were not presented during his suppression hearing, and that his sentence was excessive and disproportionate to that of his codefendant. On May 9, 2000, the trial court determined that the petition was frivolous and patently without merit and was summarily dismissed pursuant to section 122–2.1 of the Post–Conviction Hearing Act (the Act) (725 ILCS 5/122–2.1 (West 2004)).
On September 1, 2009, defendant filed his second postconviction petition, claiming that his motion to suppress should be granted in light of the Supreme Court's holding in Gant. On October 23, 2009, the trial court denied leave to file the petition on the basis that Gant does not apply retroactively to collateral proceedings. This appeal followed.
The sole issue on appeal concerns defendant's contention that the trial court improperly denied him leave to file a successive petition for postconviction relief in violation of the Act. Because the resolution of this issue requires the interpretation of a statute, our review is de novo. People v. LaPointe, 227 Ill.2d 39, 43, 316 Ill.Dec. 208, 879 N.E.2d 275 (2007).
Defendant first contends that the trial court erred in denying him leave to file a successive postconviction petition based on the nonretroactivity of Gant because that determination was reserved for second-stage proceedings. Defendant relies on People v. Boclair, 202 Ill.2d 89, 101, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002), citing the proposition that because “time limitations in the Act should be considered as an affirmative defense and can be raised, waived, or forfeited, by the State,” they are inappropriate grounds for dismissal in first-stage proceedings. This argument “ignores the fact that the Act treats successive petitions differently than initial petitions.” LaPointe, 227 Ill.2d at 44, 316 Ill.Dec. 208, 879 N.E.2d 275. While the Act permits collateral constitutional challenges to criminal convictions and sentences, the Act generally limits a petitioner to filing one petition. 725 ILCS 5/122–1 et seq. (West 2008); People v. Holman, 191 Ill.2d 204, 209, 246 Ill.Dec. 359, 730 N.E.2d 39 (2000). Section 5/122–1(f) of the Act 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
[944 N.E.2d 409 , 348 Ill.Dec. 456]
from that failure.” 725 ILCS 5/122–1(f) (West 2008).
The plain language of section 122–1(f) expressly conditions leave to file a successive postconviction petition on the petitioner's satisfaction of the cause-and-prejudice test. LaPointe, 227 Ill.2d at 44, 316 Ill.Dec. 208, 879 N.E.2d 275. In People v. Tidwell, 236 Ill.2d 150, 337 Ill.Dec. 877, 923 N.E.2d 728 (2010), the defendant filed a successive petition for postconviction relief but did not explicitly ask for leave of court to file a successive postconviction petition. Our supreme court held that “a successive postconviction petition is not considered ‘filed’ for purposes of section 122–1(f), and further proceedings will not follow, until leave is granted, a determination dependent upon a defendant's satisfaction of the cause-and-prejudice test.” Tidwell, 236 Ill.2d at 161, 337 Ill.Dec. 877, 923 N.E.2d 728. Our supreme court concluded that the trial court properly performed the review called for by section 122–1(f), i.e. the cause-and-prejudice test, by “enter[ing] a thorough and reasoned order, denying leave to file the successive postconviction petition, based upon the contents of the petition submitted.” Tidwell, 236 Ill.2d at 162, 337 Ill.Dec. 877, 923 N.E.2d 728. In other words, “there was no jurisdictional bar to the circuit court's sua sponte ruling on the matter.” Tidwell, 236 Ill.2d at 162, 337 Ill.Dec. 877, 923 N.E.2d 728.
Here, defendant filed a motion seeking leave to file a successive postconviction petition based on Gant. The trial court considered, but ultimately rejected defendant's allegations, concluding that defendant failed to satisfy the cause-and-prejudice test. In our view, the trial court conducted its analysis of defendant's successive postconviction petition as required by section 122–1(f) of the Act. We thus turn to the merits of the circuit court's ruling on cause and prejudice.
Section 122–1(f) of the Act conditions leave to file a successive postconviction petition on the petitioner's satisfaction of the cause-and-prejudice test. To establish cause, petitioner must identify an objective factor that impeded his ability to raise a specific claim during his initial postconviction proceedings. 725 ILCS 5/122–1(f) (West 2008). Here, the State concedes that the Gant decision, coming nine years after defendant's initial postconviction petition, is indeed an objective factor that impeded his ability to raise the issue during the first petition. We thus turn to whether defendant has satisfied the prejudice prong of the cause-and-prejudice test.
To establish prejudice, defendant must show that the claim not raised during his initial postconviction proceedings so infected the trial that the resulting conviction violated due process. 725 ILCS 5/122–1(f) (West 2008). Defendant contends that he was prejudiced when the trial court admitted evidence obtained by the type...
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