second stage hearing in Illinois

2006Because this was a first-stage dismissal, the question before us is not whether defendants’ petitions made a substantial showing of a constitutional violation. "[T]hat is a second-stage inquiry." Edwards, 197 Ill. 2d at 246 .

2006Because this was a first-stage dismissal, the question before us is not whether defendants’ petitions made a substantial showing of a constitutional violation. “[Tjhat is a second-stage inquiry.” Edwards, 197 Ill. 2d at 246 .

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing *470 ( People v. Jones, 123 Ill.2d 387, 426 , 123 Ill.Dec. 944 , 528 N.E.2d 648 (1988); People v. Eddmonds, 101 Ill.2d 44, 68 , 77 Ill.Dec. 724 , 461 N.E.2d 347 (1984); People v. Free, 94 Ill.2d 378, 421 , 69 Ill.Dec. 1 , 447 N.E.2d 218 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed ( People v. Fields, 135 Ill.2d 18, 76 , 142 Ill.Dec. 200 , 552 N.E.2d 791 (1990); Orange, 121 Ill

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing (People v. Jones, 123 Ill. 2d 387, 426 (1988); People v. Eddmonds, 101 Ill. 2d 44, 68 (1984); People v. Free, 94 Ill. 2d 378, 421 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed (People v. Fields, 135 Ill. 2d 18, 76 (1990); Orange, 121 Ill. 2d at 390 ; People v. Caballero, 102 Ill. 2d 23, 49 (1984)).

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing *470 ( People v. Jones, 123 Ill.2d 387, 426 , 123 Ill.Dec. 944 , 528 N.E.2d 648 (1988); People v. Eddmonds, 101 Ill.2d 44, 68 , 77 Ill.Dec. 724 , 461 N.E.2d 347 (1984); People v. Free, 94 Ill.2d 378, 421 , 69 Ill.Dec. 1 , 447 N.E.2d 218 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed ( People v. Fields, 135 Ill.2d 18, 76 , 142 Ill.Dec. 200 , 552 N.E.2d 791 (1990); Orange, 121 Ill

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing (People v. Jones, 123 Ill. 2d 387, 426 (1988); People v. Eddmonds, 101 Ill. 2d 44, 68 (1984); People v. Free, 94 Ill. 2d 378, 421 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed (People v. Fields, 135 Ill. 2d 18, 76 (1990); Orange, 121 Ill. 2d at 390 ; People v. Caballero, 102 Ill. 2d 23, 49 (1984)).

2023At the leave- to-file stage, a defendant “‘is not required to make the “substantial showing” that will later be required at a second-stage hearing after counsel is appointed.’” Wimberly, 2022 IL App (1st) 211464, ¶ 5 (quoting People v. Walker, 2022 IL App (1st) 201151, ¶ 20 ).

2023To establish “prejudice,” a petitioner must demonstrate that the claim not raised in an initial postconviction proceeding “so infected the trial that the resulting conviction or sentence violated due process.” Id. “[A]t this early leave-to-file stage, the petitioner is not required to make the ‘substantial showing’ that will later be required at a second stage hearing after counsel is appointed.” People v. Walker, 2022 IL App (1st) 201151, ¶ 20 (citing Robinson, 2020 IL 123849, ¶ 58 ).

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing *470 ( People v. Jones, 123 Ill.2d 387, 426 , 123 Ill.Dec. 944 , 528 N.E.2d 648 (1988); People v. Eddmonds, 101 Ill.2d 44, 68 , 77 Ill.Dec. 724 , 461 N.E.2d 347 (1984); People v. Free, 94 Ill.2d 378, 421 , 69 Ill.Dec. 1 , 447 N.E.2d 218 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed ( People v. Fields, 135 Ill.2d 18, 76 , 142 Ill.Dec. 200 , 552 N.E.2d 791 (1990); Orange, 121 Ill

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing (People v. Jones, 123 Ill. 2d 387, 426 (1988); People v. Eddmonds, 101 Ill. 2d 44, 68 (1984); People v. Free, 94 Ill. 2d 378, 421 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed (People v. Fields, 135 Ill. 2d 18, 76 (1990); Orange, 121 Ill. 2d at 390 ; People v. Caballero, 102 Ill. 2d 23, 49 (1984)).

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing *470 ( People v. Jones, 123 Ill.2d 387, 426 , 123 Ill.Dec. 944 , 528 N.E.2d 648 (1988); People v. Eddmonds, 101 Ill.2d 44, 68 , 77 Ill.Dec. 724 , 461 N.E.2d 347 (1984); People v. Free, 94 Ill.2d 378, 421 , 69 Ill.Dec. 1 , 447 N.E.2d 218 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed ( People v. Fields, 135 Ill.2d 18, 76 , 142 Ill.Dec. 200 , 552 N.E.2d 791 (1990); Orange, 121 Ill

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing (People v. Jones, 123 Ill. 2d 387, 426 (1988); People v. Eddmonds, 101 Ill. 2d 44, 68 (1984); People v. Free, 94 Ill. 2d 378, 421 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed (People v. Fields, 135 Ill. 2d 18, 76 (1990); Orange, 121 Ill. 2d at 390 ; People v. Caballero, 102 Ill. 2d 23, 49 (1984)).

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing *470 ( People v. Jones, 123 Ill.2d 387, 426 , 123 Ill.Dec. 944 , 528 N.E.2d 648 (1988); People v. Eddmonds, 101 Ill.2d 44, 68 , 77 Ill.Dec. 724 , 461 N.E.2d 347 (1984); People v. Free, 94 Ill.2d 378, 421 , 69 Ill.Dec. 1 , 447 N.E.2d 218 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed ( People v. Fields, 135 Ill.2d 18, 76 , 142 Ill.Dec. 200 , 552 N.E.2d 791 (1990); Orange, 121 Ill

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing (People v. Jones, 123 Ill. 2d 387, 426 (1988); People v. Eddmonds, 101 Ill. 2d 44, 68 (1984); People v. Free, 94 Ill. 2d 378, 421 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed (People v. Fields, 135 Ill. 2d 18, 76 (1990); Orange, 121 Ill. 2d at 390 ; People v. Caballero, 102 Ill. 2d 23, 49 (1984)).

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing *470 ( People v. Jones, 123 Ill.2d 387, 426 , 123 Ill.Dec. 944 , 528 N.E.2d 648 (1988); People v. Eddmonds, 101 Ill.2d 44, 68 , 77 Ill.Dec. 724 , 461 N.E.2d 347 (1984); People v. Free, 94 Ill.2d 378, 421 , 69 Ill.Dec. 1 , 447 N.E.2d 218 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed ( People v. Fields, 135 Ill.2d 18, 76 , 142 Ill.Dec. 200 , 552 N.E.2d 791 (1990); Orange, 121 Ill

1998The death penalty statute is not invalid for failing to impose a burden of persuasion on the prosecution at the second stage of the hearing (People v. Jones, 123 Ill. 2d 387, 426 (1988); People v. Eddmonds, 101 Ill. 2d 44, 68 (1984); People v. Free, 94 Ill. 2d 378, 421 (1983)), and it does not invalidly place on the defense a burden of establishing that a noncapital sentence should be imposed (People v. Fields, 135 Ill. 2d 18, 76 (1990); Orange, 121 Ill. 2d at 390 ; People v. Caballero, 102 Ill. 2d 23, 49 (1984)).

2023At the leave- to-file stage, a defendant “ ‘is not required to make the “substantial showing” that will later be required at a second-stage hearing after counsel is appointed.’ ” Wimberly, 2022 IL App (1st) 211464, ¶ 5 (quoting People v. Walker, 2022 IL App (1st) 201151, ¶ 20 ).

2023At the leave- to-file stage, a defendant “‘is not required to make the “substantial showing” that will later be required at a second-stage hearing after counsel is appointed.’” Wimberly, 2022 IL App (1st) 211464, ¶ 5 (quoting People v. Walker, 2022 IL App (1st) 201151, ¶ 20 ).

2020Although the defendant “bears the burden of making a substantial showing of a constitutional violation” (id.), a second- stage inquiry into “whether a post-conviction petition contains sufficient allegations of constitutional deprivations does not require the trial court to engage in any fact-finding or credibility determinations” (People v. Childress, 191 Ill. 2d 168, 174 (2000)).

2010People v. Childress, 191 Ill.2d 168, 174 , 246 Ill.Dec. 352 , 730 N.E.2d 32 (2000).

1996The court has also held that the statute does not place on the defendant the risk of nonpersuasion at the sentencing hearing (People v. Fields, 135 Ill. 2d 18, 76 (1990); People v. Orange, 121 Ill. 2d 364, 390 (1988); People v. Caballero, 102 Ill. 2d 23, 49 (1984)), and thus a defendant is not denied a fair sentencing hearing when the prosecution is permitted to present rebuttal argument at the second stage of the hearing (People v. Tenner, 157 Ill. 2d 341, 382 (1993); People v. Page, 155 Ill. 2d 232, 282-83 (1993); People v. Ramirez, 98 Ill. 2d 439, 468-69 (1983); People v. Williams, 97 Ill.

1996Dec. 200 , 552 N.E.2d 791 (1990); People v. Orange, 121 Ill.2d 364, 390 , 118 Ill.Dec. 1 , 521 N.E.2d 69 (1988); People v. Caballero, 102 Ill.2d 23, 49 , 79 Ill.Dec. 625 , 464 N.E.2d 223 (1984)), and thus a defendant is not denied a fair sentencing hearing when the prosecution is permitted to present rebuttal argument at the second stage of the hearing ( People v. Tenner, 157 Ill.2d 341, 382 , 193 Ill.Dec. 105 , 626 N.E.2d 138 (1993); People v. Page, 155 Ill.2d 232, 282-83 , 185 Ill.Dec. 475 , 614 N.E.2d 1160 (1993); People v. Ramirez, 98 Ill.2d 439, 468-69 , 75 Ill.Dec. 241 , 457 N.E.2d 31 (1

2023See People v. Domagala, 2013 IL 113688, ¶ 35 (stating that “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”).

2021See Lamar, 2015 IL App (1st) 130542, ¶ 13 (quoting Domagala, 2013 IL 113688, ¶ 35 ). ¶ 19 As we see it, the trial court made the same finding but believed any constitutional violation for ineffectiveness of counsel had been corrected by defendant’s postconviction petition advancing to a second-stage hearing.

1996The court has also held that the statute does not place on the defendant the risk of nonpersuasion at the sentencing hearing (People v. Fields, 135 Ill. 2d 18, 76 (1990); People v. Orange, 121 Ill. 2d 364, 390 (1988); People v. Caballero, 102 Ill. 2d 23, 49 (1984)), and thus a defendant is not denied a fair sentencing hearing when the prosecution is permitted to present rebuttal argument at the second stage of the hearing (People v. Tenner, 157 Ill. 2d 341, 382 (1993); People v. Page, 155 Ill. 2d 232, 282-83 (1993); People v. Ramirez, 98 Ill. 2d 439, 468-69 (1983); People v. Williams, 97 Ill.

1996Dec. 200 , 552 N.E.2d 791 (1990); People v. Orange, 121 Ill.2d 364, 390 , 118 Ill.Dec. 1 , 521 N.E.2d 69 (1988); People v. Caballero, 102 Ill.2d 23, 49 , 79 Ill.Dec. 625 , 464 N.E.2d 223 (1984)), and thus a defendant is not denied a fair sentencing hearing when the prosecution is permitted to present rebuttal argument at the second stage of the hearing ( People v. Tenner, 157 Ill.2d 341, 382 , 193 Ill.Dec. 105 , 626 N.E.2d 138 (1993); People v. Page, 155 Ill.2d 232, 282-83 , 185 Ill.Dec. 475 , 614 N.E.2d 1160 (1993); People v. Ramirez, 98 Ill.2d 439, 468-69 , 75 Ill.Dec. 241 , 457 N.E.2d 31 (1

1996The court has also held that the statute does not place on the defendant the risk of nonpersuasion at the sentencing hearing (People v. Fields, 135 Ill. 2d 18, 76 (1990); People v. Orange, 121 Ill. 2d 364, 390 (1988); People v. Caballero, 102 Ill. 2d 23, 49 (1984)), and thus a defendant is not denied a fair sentencing hearing when the prosecution is permitted to present rebuttal argument at the second stage of the hearing (People v. Tenner, 157 Ill. 2d 341, 382 (1993); People v. Page, 155 Ill. 2d 232, 282-83 (1993); People v. Ramirez, 98 Ill. 2d 439, 468-69 (1983); People v. Williams, 97 Ill.

1996Dec. 200 , 552 N.E.2d 791 (1990); People v. Orange, 121 Ill.2d 364, 390 , 118 Ill.Dec. 1 , 521 N.E.2d 69 (1988); People v. Caballero, 102 Ill.2d 23, 49 , 79 Ill.Dec. 625 , 464 N.E.2d 223 (1984)), and thus a defendant is not denied a fair sentencing hearing when the prosecution is permitted to present rebuttal argument at the second stage of the hearing ( People v. Tenner, 157 Ill.2d 341, 382 , 193 Ill.Dec. 105 , 626 N.E.2d 138 (1993); People v. Page, 155 Ill.2d 232, 282-83 , 185 Ill.Dec. 475 , 614 N.E.2d 1160 (1993); People v. Ramirez, 98 Ill.2d 439, 468-69 , 75 Ill.Dec. 241 , 457 N.E.2d 31 (1

2015See also Parker, 2012 IL App (1st) 101809, ¶ 81 . ¶ 62 The Ortiz court defined newly discovered evidence as “evidence [(1)] that has been discovered since the trial and [(2)] that the defendant could not have discovered sooner through due diligence.” Ortiz, 235 Ill. 2d at 334 . ¶ 63 Defendant claims that Redic’s and Nash’s affidavits are newly discovered evidence, and the State conceded at the second-stage hearing that the affidavits were newly discovered.

2015See also Parker, 2012 IL App (1st) 101809, ¶ 81 . ¶ 62 The Ortiz court defined newly discovered evidence as "evidence [(1)] that has been discovered since the trial and [(2)] that the defendant could not have discovered sooner through due diligence." Ortiz, 235 Ill. 2d at 334 . 24 No. 1-13-0535 ¶ 63 Defendant claims that Redic's and Nash's affidavits are newly discovered evidence, and the State conceded at the second-stage hearing that the affidavits were newly discovered.

2015See also Parker, 2012 IL App (1st) 101809, ¶ 81 . ¶ 62 The Ortiz court defined newly discovered evidence as “evidence [(1)] that has been discovered since the trial and [(2)] that the defendant could not have discovered sooner through due diligence.” Ortiz, 235 Ill. 2d at 334 . ¶ 63 Defendant claims that Redic’s and Nash’s affidavits are newly discovered evidence, and the State conceded at the second-stage hearing that the affidavits were newly discovered.

2015See also Parker, 2012 IL App (1st) 101809, ¶ 81 . ¶ 62 The Ortiz court defined newly discovered evidence as "evidence [(1)] that has been discovered since the trial and [(2)] that the defendant could not have discovered sooner through due diligence." Ortiz, 235 Ill. 2d at 334 . 24 No. 1-13-0535 ¶ 63 Defendant claims that Redic's and Nash's affidavits are newly discovered evidence, and the State conceded at the second-stage hearing that the affidavits were newly discovered.

2026The standard for filing a successive petition “falls between the first-stage pleading requirement for an initial petition and the second-stage requirement of a substantial showing.” Robinson, 2020 IL 123849, ¶ 58 .

2024Robinson, 2020 IL 123849, ¶ 60 . ¶ 50 “[T]he standard for alleging a colorable claim of actual innocence falls between the first- stage pleading requirement for an initial petition and the second-stage requirement of a substantial showing.” Id. ¶ 58.

2025ANALYSIS ¶ 42 On appeal, defendant contends (1) the trial court “ignored the standard applicable to a second-stage hearing” (emphasis omitted) by finding the hearsay statements in a written witness statement submitted in support of the petition were insufficient to support a claim of - 12 - actual innocence and (2) his postconviction petition should have been granted because he established he was denied his right to testify at trial. ¶ 43 Under the Act, a defendant may “challenge his conviction or sentence for violations of federal or state constitutional rights.” People v. Pendleton, 223 Ill.

2025A defendant is entitled to postconviction relief if he can “show that he has suffered a substantial deprivation of his federal or state constitutional rights in the proceedings that produced the conviction or sentence being challenged.” Id.

2024See People v. Reed, 2018 IL App (1st) 160609, ¶ 49 (if allegations during a preliminary Krankel hearing demonstrate possible neglect of the case, new counsel should be appointed to represent defendant at the second-stage hearing). ¶ 42 The State contends that we may overturn the trial court here only if the decision is manifestly erroneous, citing People v. McCarter, 385 Ill.

2021Id.

2022Rather, the court should only deny a petitioner leave to file a successive postconviction petition “when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings.” People v. Smith, 2014 IL 115946, ¶ 35 .

2020See Smith, 2014 IL 115946, ¶ 29 ; see also Morrow, 2019 IL App (1st) 161208, ¶ 51 ; Lee, 2016 IL App (1st) 152425 , ¶ 47. ¶ 59 In arguing for affirmance, the State places significant reliance on Sanders for the proposition that new conflicting evidence is insufficient to justify granting leave to file a successive petition.

2019Finally, defendant contends Judge Difanis erred in dismissing his amended postconviction petition at the second stage because his claim that his trial counsel provided ineffective assistance during the suppression hearing made a substantial showing of a constitutional violation. ¶ 34 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2012)) “provides a three-stage process for the adjudication of postconviction petitions.” People v. Harris, 224 Ill. 2d 115, 125 , 862 N.E.2d 960, 967 (2007).

2019Finally, defendant contends Judge Difanis erred in dismissing his amended postconviction petition at the second stage because his claim that his trial counsel provided ineffective assistance during the suppression hearing made a substantial showing of a constitutional violation. ¶ 34 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2012)) “provides a three-stage process for the adjudication of postconviction petitions.” People v. Harris, 224 Ill. 2d 115, 125 , 862 N.E.2d 960, 967 (2007).

2019“At the first stage of postconviction proceedings, the circuit court reviews the petition and may summarily dismiss it if the court determines it is ‘frivolous or is patently without merit.’ ” People v. Perkins, 229 Ill. 2d 34, 42 , 890 N.E.2d 398, 402 (2007) (quoting 725 ILCS 5/122-2.1(a)(2) (West 2002)).

2019“At the first stage of postconviction proceedings, the circuit court reviews the petition and may summarily dismiss it if the court determines it is ‘frivolous or is patently without merit.’ ” People v. Perkins, 229 Ill. 2d 34, 42 , 890 N.E.2d 398, 402 (2007) (quoting 725 ILCS 5/122-2.1(a)(2) (West 2002)).