procedural default rule in Illinois

2011Dec. 560 , 939 N.E.2d 403 (failure to properly preserve an alleged error by both an objection at trial and a written posttrial motion constitutes a procedural default of that error on review (citing People v. Enoch, 122 Ill.2d 176, 186 , 119 Ill.Dec. 265 , 522 N.E.2d 1124 (1988))).

2011Dec. 560 , 939 N.E.2d 403 (failure to properly preserve an alleged error by both an objection at trial and a written posttrial motion constitutes a procedural default of that error on review (citing People v. Enoch, 122 Ill.2d 176, 186 , 119 Ill.Dec. 265 , 522 N.E.2d 1124 (1988))).

2016To quote Erickson more fully: "[T]he default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a de- fense. [Citations.] An ineffective-assistance claim based on what the record on direct appeal discloses counsel did, in fact, do is, of course subject to the usual procedural default rule. [Citation.] But a claim based on what ought to have been done may depend on proof of matters which could not have been included in the record precisely because of the allegedly deficient representation. [Cita- tion.]" Id. at 88 , 641 N.E.2d at 4

2016To quote Erickson more fully: "[T]he default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a de- fense. [Citations.] An ineffective-assistance claim based on what the record on direct appeal discloses counsel did, in fact, do is, of course subject to the usual procedural default rule. [Citation.] But a claim based on what ought to have been done may depend on proof of matters which could not have been included in the record precisely because of the allegedly deficient representation. [Cita- tion.]" Id. at 88 , 641 N.E.2d at 4

2026However, “a default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a defense.” People v. West, 187 Ill. 2d 418, 427 (1999) (holding that defendant’s postconviction claim that counsel rendered ineffective assistance by not calling a forensic expert was not forfeited because the claim did not concern something that counsel actually did that was apparent on the face of the record).

2016See also People v. West, 187 Ill. 2d 418, 427 , 719 N.E.2d 664, 670 (1999); Kokoraleis, 159 Ill. 2d at 328-29 , 637 N.E.2d at 1017 . ¶ 105 For example, in one of the cases the majority cites, Bew, the defendant claimed, on direct appeal, that his trial counsel had rendered ineffective assistance by omitting to do some- thing, namely, file a motion for suppression of evidence.

2021Id.; see also - 13 - 725 ILCS 5/122-3 (West 2016) (“[a]ny claim *** not raised in the original or an amended petition is waived”). ¶ 54 Because successive petitions impede the finality of criminal litigation, the rules barring successive petitions will be relaxed only “ ‘ “when fundamental fairness so requires.” ’ ” Holman, 2017 IL 120655, ¶ 25 (quoting People v. Coleman, 2013 IL 113307 , ¶ 81, quoting People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002)); see also Edwards, 2012 IL 111711, ¶ 23 ; People v. Ortiz, 235 Ill. 2d 319, 329 (2009); People v. Washington, 171 Ill. 2d 475, 488 (1996). ¶

2013See People v. Edwards, 2012 IL 111711, ¶ 22 .

2013That statutory bar will be relaxed -19- only “when fundamental fairness so requires.” People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002) (citing People v. Flores, 153 Ill. 2d 264, 274 (1992)). ¶ 82 We have stated that, outside the context of capital litigation, there are two such instances, or two exceptions, to this procedural default rule.

2013That statutory bar will be relaxed only “when fundamental fairness so requires.” People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002) (citing People v. Flores, 153 Ill. 2d 264, 274 (1992)). ¶ 82 We have stated that, outside the context of capital litigation, there are two such instances, or two exceptions, to this procedural default rule.

2012See People v. Chapman, 194 Ill.2d 186, 225 , 252 Ill.Dec. 474 , 743 N.E.2d 48 (2000) (failure to properly preserve an alleged error by both an objection at trial and a written posttrial motion constitutes a procedural default of that error on review).

2012See People v. Chapman, 194 Ill.2d 186, 225 , 252 Ill.Dec. 474 , 743 N.E.2d 48 (2000) (failure to properly preserve an alleged error by both an objection at trial and a written posttrial motion constitutes a procedural default of that error on review).

2010Defendant admits that he failed to properly preserve this issue for appeal, but urges us to review the error under the second prong of the plain error exception because the error itself was so serious that he was denied a substantial right and thus a fair trial, requiring automatic reversal. 134 Ill. 2d R. 615; People v. Herron, 215 Ill. 2d 167, 186-87 (2005) (plain error rule permits consideration of errors even though technically waived for review where the evidence is closely balanced or where the claimed error is of such magnitude that there is a substantial risk that the defendant was den

2010Defendant admits that he failed to properly preserve this issue for appeal, but urges us to consider it as plain error on the bases that substantial rights are involved and that the evidence was closely balanced. 134 Ill. 2d R. 615; Herron, 215 Ill. 2d at 186-87 (plain error rule permits consideration of errors even though technically waived for review where the evidence is closely balanced or where the claimed error is of such magnitude that there is a substantial risk that the defendant was denied a fair and impartial trial).

1998Keene, 169 Ill. 2d at 31 ; People v. Roberts, 75 Ill. 2d 1, 12-14 (1979); People v. Jenkins, 69 Ill. 2d 61, 66 (1977).

1998Keene, 169 Ill.2d at 31 , 214 Ill.Dec. 194 , 660 N.E.2d 901 ; People v. Roberts, 75 1, 12-14, 25 Ill.Dec. 675 , 387 N.E.2d 331 (1979); People v. Jenkins, 69 Ill.2d 61, 66 , 12 Ill.Dec. 728 , 370 N.E.2d 532 (1977).

2021The Court reasoned that “[a]pplying the usual procedural-default rule to ineffective-assistance claims would *** creat[e] the risk that defendants would feel compelled to raise the issue [on direct appeal] before there has been an opportunity fully to develop the factual predicate for the claim.” Id. at 504 .

2018The Court noted that “[a]pplying the usual procedural-default rule to ineffective-assistance claims would have the opposite effect, creating the risk that defendants would feel compelled to raise the issue before there has been an opportunity fully to develop the factual predicate for the claim.” Massaro, 538 U.S. at 504 .

1995(See People v. Roberts (1979), 75 Ill. 2d 1, 12-14 .) That is, as with Rule 615(a), under Rule 451(c) a procedural default will not bar review of an error in jury instructions involving a substantial right if to honor the bar would work fundamental unfairness.

1995(See People v. Roberts (1979), 75 Ill.2d 1, 12-14 , 25 Ill.Dec. 675 , 387 N.E.2d 331 .) That is, as with Rule 615(a), under Rule 451(c) a procedural default will not bar review of an error in jury instructions involving a substantial right if to honor the bar would work fundamental unfairness.

2021See Strong, 274 Ill.

2020See Strong, 274 Ill.

2021See People v. Layhew, 139 Ill. 2d 476, 492-93 (1990) (finding that the defendant forfeited the issue of the trial court’s refusal to allow juror note-taking where the defendant did not raise the issue in the trial court and failed to make any argument on appeal as to why the procedural default rule should not apply). 2 In oral argument, the State acknowledged that the trial court’s refusal to allow the jurors to take notes was probably error. - 17 - ¶ 53 We note, however, that even if we had relaxed the forfeiture rule because the conduct of the trial court was at the center of this particular

2020See People v. Layhew, 139 Ill. 2d 476, 492-93 (1990) (finding that the defendant forfeited the issue of the trial court’s refusal to allow juror note-taking where the defendant did not raise the issue in the trial court and failed to make any argument on appeal as to why the procedural default rule should not apply). ¶ 53 We note, however, that even if we had relaxed the forfeiture rule because the conduct of the trial court was at the center of this particular error, we would have still rejected defendant’s claim because any error that occurred was harmless since the evidence of defendant’s g

2013That statutory bar will be relaxed -19- only “when fundamental fairness so requires.” People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002) (citing People v. Flores, 153 Ill. 2d 264, 274 (1992)). ¶ 82 We have stated that, outside the context of capital litigation, there are two such instances, or two exceptions, to this procedural default rule.

2013That statutory bar will be relaxed only “when fundamental fairness so requires.” People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002) (citing People v. Flores, 153 Ill. 2d 264, 274 (1992)). ¶ 82 We have stated that, outside the context of capital litigation, there are two such instances, or two exceptions, to this procedural default rule.

2011Dec. 560 , 939 N.E.2d 403 (failure to properly preserve an alleged error by both an objection at trial and a written posttrial motion constitutes a procedural default of that error on review (citing People v. Enoch, 122 Ill.2d 176, 186 , 119 Ill.Dec. 265 , 522 N.E.2d 1124 (1988))).

2011Thompson, 238 Ill. 2d at 611-12 (failure to properly preserve an alleged error by both an objection at trial and a written posttrial motion constitutes a procedural default of that error on review (citing People v. Enoch, 122 Ill. 2d 176, 186 (1988))).

2000People v. Simms, 143 Ill. 2d 154, 170 (1991).

2000Miller, 173 Ill. 2d at 191 ; Simms, 143 Ill. 2d at 170 .

2014Id. at __, 132 S. Ct. at 1315 .

2013See -11- Id. at ___, 132 S. Ct. at 1320 (“a procedural default will not bar a *** court from hearing a substantial claim of ineffective assistance at trial if, in the [proceedings which provide the first occasion to raise a claim of ineffective assistance at trial], there was no counsel or counsel in that proceeding was ineffective”).

2026Coleman, 2013 IL 113307, ¶¶ 82-83 .

2021Id.; see also - 13 - 725 ILCS 5/122-3 (West 2016) (“[a]ny claim *** not raised in the original or an amended petition is waived”). ¶ 54 Because successive petitions impede the finality of criminal litigation, the rules barring successive petitions will be relaxed only “ ‘ “when fundamental fairness so requires.” ’ ” Holman, 2017 IL 120655, ¶ 25 (quoting People v. Coleman, 2013 IL 113307 , ¶ 81, quoting People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002)); see also Edwards, 2012 IL 111711, ¶ 23 ; People v. Ortiz, 235 Ill. 2d 319, 329 (2009); People v. Washington, 171 Ill. 2d 475, 488 (1996). ¶

2025See Golden, 229 Ill. 2d at 283 ; Peeples, 205 Ill. 2d at 514 ; People v. Edwards, 2012 IL App (1st) 091651, ¶ 29 (“A reviewing 7 court is entitled to have issues clearly defined with *** cohesive arguments presented; this court is not a repository into which an appellant may foist the burden of argument and research.”).

2025Defendant contends that this procedural default rule “is not rigidly applied where the basis for the objection is the conduct of the trial judge.” See People v. Sims, 192 Ill. 2d 592, 636 (2000) (citing People v. Sprinkle, 27 Ill. 2d 398, 400-01 (1963)).

2025See Golden, 229 Ill. 2d at 283 ; Peeples, 205 Ill. 2d at 514 ; People v. Edwards, 2012 IL App (1st) 091651, ¶ 29 (“A reviewing 7 court is entitled to have issues clearly defined with *** cohesive arguments presented; this court is not a repository into which an appellant may foist the burden of argument and research.”).

2025However, the Sprinkle doctrine is only applicable where trial counsel’s objection would have “fallen on deaf ears.” See People v. McLaurin, 235 Ill. 2d 478, 489 (2009).

2025Defendant contends that this procedural default rule “is not rigidly applied where the basis for the objection is the conduct of the trial judge.” See People v. Sims, 192 Ill. 2d 592, 636 (2000) (citing People v. Sprinkle, 27 Ill. 2d 398, 400-01 (1963)).

2021Id.; see also - 13 - 725 ILCS 5/122-3 (West 2016) (“[a]ny claim *** not raised in the original or an amended petition is waived”). ¶ 54 Because successive petitions impede the finality of criminal litigation, the rules barring successive petitions will be relaxed only “ ‘ “when fundamental fairness so requires.” ’ ” Holman, 2017 IL 120655, ¶ 25 (quoting People v. Coleman, 2013 IL 113307 , ¶ 81, quoting People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002)); see also Edwards, 2012 IL 111711, ¶ 23 ; People v. Ortiz, 235 Ill. 2d 319, 329 (2009); People v. Washington, 171 Ill. 2d 475, 488 (1996). ¶