An appellate court lacks the supervisory authority that would allow it to review an as-applied constitutional claim that was not raised in a post-conviction petition
The appellant in People v. Allen, 2019 IL App (1st) 162985 appealed the decision of the Circuit Court of Cook County denying leave to file his third successive pro se petition on the grounds that appellant’s mental illness renders him incapable of meeting the threshold burden of showing an arguably meritorious claim.
Appellant Allen was convicted of home invasion and the first-degree murder of his sister, Debbie Whitebear. Id. at ¶ 4. During appellant’s trial proceedings, Allen was diagnosed with a “psychotic delusional disorder.” Id. at ¶ 6. Appellant’s diagnosis, made following the examination and testimony (at a fitness hearing) of four psychologists and psychiatrists, stemmed from his theory of the case which stated that he had “killed his sister to protect their elderly mother from her abuse”; that his siblings had conspired to “hide from him the existence of a real estate trust which held the property of a man named Carl Lewis”, whom he believed was his real father; and, that Claude W. Allen Jr. his purported father, was a “serial killer.” Id. at ¶ 4. Appellant Allen also filed a pro se “Motion for Withdrawal of the Public Defender,” in which he argued that the public defender was “in direct collusion with the Assistant State’s Attorney.” Id. at ¶ 5. Appellant maintained these and other theories throughout pre-trial, trial and post-trial proceedings.
After appellant was restored to fitness and determined to be fit for trial, he filed a motion to proceed pro se and proceeded to represent himself in his trial in November 2007. Id. at ¶ 10. Ultimately, the “jury found petitioner guilty of first-degree murder and home invasion.” Id. at ¶ 14. Following his conviction, appellant Allen filed a series of post-trial motions maintaining the aforementioned theories regarding his stolen inheritance, among other newly posited theories. The court denied the motions and sentenced him to “60 years’ imprisonment for the murder and a consecutive term of 25 years for home invasion.” Id. at ¶ 16.
On direct appeal, appellant argued that he was not mentally competent to represent himself pro se and that his waiver of trial counsel was invalid. The Appellate Court of Illinois First Judicial District affirmed the judgment of the circuit court. Id. at ¶ 17. Following the appellate court’s ruling, appellant unsuccessfully petitioned the Illinois Supreme Court for leave to appeal, which was denied on September 29, 2010. The United States Supreme Court then subsequently denied appellant’s request for a writ of certiorari (Allen v. Illinois, 563 U.S. 1034 (2011)). Id. at ¶ 17.
Following two unsuccessful successive post-conviction petitions, on November 9, 2015, appellant filed a third successive post-conviction petition and a motion for expert assistance, which constitute the focus of the current appeal before the Appellate Court of Illinois First Judicial District. Id.at ¶ 23. The petition, which alleged the ineffective assistance of counsel in both of his previous post-conviction petitions, was denied by the court because “petitioner [Allen] had not established any prejudice from the alleged failures of his appellate counsel.” Id. at ¶ 26. On December 1, 2016, the court granted Allen leave to file a late notice of appeal from the circuit court’s order denying his motion for expert assistance and denying him leave to file his third successive petition. Id. at ¶ 26.
In the court’s analysis of the appeal, the primary issue of focus became whether appellant was so mentally ill that he was “incapable of advancing past the first stage of postconviction proceedings without the assistance of counsel.” Id. at ¶ 28. The court added that if appellant’s mental illness did in fact prevent him from proceeding without the assistance of counsel, they must determine the appropriate remedy.
The court analyzed the relative merit of appellant’s claims that his federal and/or state constitutional rights had been substantially violated via the procedural mechanism for such claims provided under the Post Conviction Hearing Act. As noted by the court, “[t]he Act allows inquiry into constitutional issues arising in the original proceeding which have not been raised and could not have been adjudicated on direct appeal. Therefore, issues that could have been raised on direct appeal are forfeited” and “any claim not presented in an original or amended petition is waived.” Id. at ¶ 29.
Of the three stages of proceedings under the Act, the first is especially pertinent to the court’s analysis because it is the stage that determines whether “the petition is frivolous or is patently without merit” and whether the petitioner is able to proceed to the second stage of proceedings, which would result in the appointment of counsel. Id. at ¶ 31.
The State Appellate Defender, on behalf of appellant, abandon’s all previous claims of error presented by appellant and did not present an argument that appellant stated a potentially meritorious claim in his most recent petition, as would have been required to proceed past the first stage of proceedings under the Post Conviction Hearing Act. Rather, the State Appellate Defender argued that “petitioner is so mentally ill that he is incapable of making a pro se showing of an arguably meritorious claim” and “because [he] does not acknowledge his illness and because he harbors prosecutory and paranoid delusions, he is incapable of raising any issues that are not “fantastic or delusional.” Id. at ¶ 33. As such, the State Appellate Defender argued that appellant is unable meet the threshold requirements to receive the appointed counsel that he “needs to present his potentially valid claims” and “is effectively denied meaningful access to the courts,” rendering the Act “unconstitutional as applied to him.” Id. at ¶ 33.
The relief requested by the State Appellate Defender was the reversal of the order denying petitioner’s leave to file his third successive post-conviction petition and the appointment of counsel to assess whether petitioner has any potentially meritorious claims. Id. at ¶ 36.
However, the court determined, regardless of fundamental fairness, it was unable to grant the requested relief because the “as-applied constitutional challenge has been waived” under the aforementioned guidelines of the Act. Id. at ¶ 37. Ultimately, the court held that unlike the Illinois Supreme Court, the appellate court lacks “the supervisory authority that would allow us to review an as-applied constitutional claim that was not actually raised in the petition.” Id. at ¶ 40.
Thus, because the as-applied constitutional challenge was not raised in the petition at the circuit court level, the court was compelled to find that it cannot be raised in this appeal and affirmed the judgement of the circuit court.