The opinion
NOTICE
This Order was filed under 2022 IL App (4th) 210222-U FILED
Supreme Court Rule 23 and is June 23, 2022
not precedent except in the Carla Bender
limited circumstances allowed NO. 4-21-0222
4th District Appellate
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
WOODROW A. BROWN, ) No. 13CF1557
Defendant-Appellant. )
) Honorable
) Roger B. Webber,
) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Presiding Justice Knecht and Justice Harris concurred in the judgment.
ORDER
¶1 Held: The circuit court erred by treating defendant’s second postconviction petition as a
successive postconviction petition where the first petition was filed without
defendant’s knowledge and authorization.
¶2 In June 2018, a postconviction petition was filed on behalf of defendant,
Woodrow A. Brown. The Champaign County circuit court dismissed the postconviction petition
as frivolous and patently without merit. Defendant filed a joint motion to vacate the void
judgment and for reconsideration, asserting he did not file the postconviction petition and did not
authorize the filing of it. The State filed a motion to strike defendant’s postjudgment motion.
After a September 2018 hearing, the court denied all the motions and noted its June 2018
dismissal of defendant’s postconviction petition remained in full force and effect. Defendant did
not appeal the court’s dismissal.
¶3 In January 2020, defendant filed a pro se postconviction petition and provided
evidence the June 2018 petition was not filed by him. The circuit court treated the petition as a
successive postconviction petition and denied defendant leave to file the successive petition
because defendant failed to adequately allege prejudice.
¶4 Defendant appeals the denial, contending (1) the circuit court should have treated
his January 2020 postconviction petition as an initial postconviction petition and, (2) in the
alternative, his successive postconviction petition did establish prejudice. We reverse and
remand for further proceedings.
¶5 I. BACKGROUND
¶6 In September 2013, the State charged defendant by information with one count of
aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2012)), one count of
aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2012)), and one count of
reckless discharge of a firearm (720 ILCS 5/24-1.5(a) (West 2012)). Those charges relate to an
incident on September 18, 2013, in which defendant shot Dyvar Johnson, the brother of his
girlfriend, Unique Ayers, at the apartment they all shared. Defendant raised the affirmative
defense of self-defense. Before trial, the circuit court dismissed the reckless discharge of a
firearm charge at the State’s request.
¶7 After a November 2014 trial, the jury found defendant guilty of the two remaining
charges. Defendant filed a motion for a new trial. At a joint January 2015 hearing, the circuit
court denied defendant’s motion for a new trial and sentenced defendant to 30 years’
imprisonment for aggravated battery with a firearm. Defendant appealed, contending he was
denied effective assistance of counsel and challenging the imposition of certain fines and the
failure to receive credit against other fines. This court affirmed the circuit court’s judgment but
remanded the cause for the circuit court to address defendant’s fines and credit issues. People v.
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Brown, 2017 IL App (4th) 150154-U, ¶ 37.
¶8 On June 13, 2018, a certification for exemption from e-filing and a postconviction
petition were filed in defendant’s name and purportedly signed by defendant. The envelope for
the documents is included in the record on appeal. The return address on the envelope listed
Mount Sterling, Illinois, as defendant’s city of residence, and so did the documents. However,
the postage stated it was paid in Urbana, Illinois. On June 18, 2018, the circuit court summarily
dismissed the petition as frivolous and patently without merit.
¶9 On July 16, 2018, defendant filed pro se a joint motion to vacate a void judgment
and a motion for reconsideration. Defendant asserted he did not file the postconviction petition
and only gave John Marshall Law School authorization to file a postconviction petition on his
behalf. He requested the June 2018 petition be vacated and withdrawn without prejudice. He
also asked for an extension of the deadline for filing an initial postconviction petition to rectify
the situation. Defendant attached his affidavit to the motion, which again noted he only gave
permission to John Marshall Law School to file a postconviction petition and the June 2018
petition was not filed by himself or the law school. In August 2018, the State filed a motion to
strike defendant’s postjudgment motion.
¶ 10 On September 11, 2018, the circuit court held a hearing on the pending motions.
Defendant was pro se at the hearing. Defendant asked for counsel, and the court denied
defendant’s request. Defendant stated the June 2018 petition was filed by Anne Ogwal and he
did not tell her to file it. The court told defendant the following:
“The relief that I think you might be most entitled to seek is to file a
subsequent post-conviction petition, and allege in that that you have not filed or
previously filed a petition, or authorized anyone to file on your behalf. And if and
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when you do that, then we would have a contested hearing. I could probably
appoint counsel for you at that time, although if people from the John Marshall
Legal Clinic are helping you, then they could appear on your behalf, or we could
look at counsel, if a subsequent petition gets filed on your behalf.
Now if you do that, it’s very possible and likely that the State’s going to
file a motion to dismiss because you’ve already filed one and you didn’t meet all
the criteria from the second one, but you would be given a chance to respond to
that, and you could certainly say, I didn’t file the first one, which would create a
question of fact we’d have to have a hearing to resolve.”
Defendant then asked the court to confirm he was still able to file an original postconviction
petition, and the court stated, “Right.” The court further told defendant to state in his
postconviction petition why it is late. Defendant indicated he wanted the June 2018
postconviction petition dismissed from the record. The court responded it did not think it had the
authority to vacate the June 2018 petition and noted it would probably appoint defendant counsel
on another postconviction petition to help defendant prove he did not file the June 2018 petition.
The court concluded the hearing by denying defendant’s joint motion and the State’s motion to
strike. It noted the prior order dismissing the June 2018 postconviction petition still stood.
¶ 11 On January 17, 2020, defendant filed a pro se petition for postconviction relief, in
which he asserted the petition was past the due date because of circumstances out of defendant’s
control. Specifically, defendant argued a postconviction petition was filed by Ogwal without his
consent. The document was not signed by him and was not mailed from his address. Defendant
also attached Ogwal’s affidavit to the petition, in which she stated she filed the June 2018
postconviction petition on her own volition and did not have defendant’s consent. Other
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attachments included correspondence from John Marshall Law School about defendant’s case.
Additionally, defendant noted he did not learn John Marshall Law School was not handling his
postconviction petition until October 2019. In his postconviction petition, defendant alleged he
was denied effective assistance of counsel because defense counsel failed to (1) investigate
Detective David Roesch’s recorded interview of defendant and (2) obtain and present
information about Johnson’s reputation of having a violent nature.
¶ 12 On March 31, 2021, the circuit court entered a written order, treating defendant’s
January 2020 postconviction petition as a successive postconviction petition and denying
defendant leave to file the January 2020 petition. The court found defendant had established
cause based on Ogwal’s filing the January 2018 petition without his consent but found defendant
failed to adequately allege prejudice.
¶ 13 On April 15, 2021, defendant timely filed a notice of appeal in sufficient
compliance with Illinois Supreme Court Rule 606 (eff. Mar. 21, 2021). See Ill. S. Ct. R. 651(d)
(eff. July 1, 2017) (providing the procedure for appeals in postconviction proceedings is in
accordance with the rules governing criminal appeals). Thus, we have jurisdiction of
defendant’s appeal under Illinois Supreme Court Rule 651(a) (eff. July 1, 2017).
¶ 14 II. ANALYSIS
¶ 15 Defendant first contends his January 2020 postconviction petition was an original
postconviction petition and not a successive one. The State disagrees and asserts the circuit court
properly treated the January 2020 petition as a successive postconviction petition. We review
de novo whether the circuit court erred in treating defendant’s January 2020 petition as a
successive petition for purposes of the Post-Conviction Hearing Act (Postconviction Act) (725
ILCS 5/122-1 et seq. (West 2020)). People v. Taylor, 2022 IL App (2d) 190951, ¶ 17. This
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court also reviews de novo the denial of a request for leave to file a successive postconviction
petition. See People v. Gillespie, 407 Ill. App. 3d 113, 124, 941 N.E.2d 441, 452 (2010).
¶ 16 Both parties address the recent appellate court decision in Taylor, 2022 IL App
(2d) 190951. There, the reviewing court first found the circuit court improperly treated the
defendant’s second postconviction petition as a successive postconviction petition because the
circuit court improperly dismissed the first postconviction on the ground of mootness, which did
not fall under the definition of frivolous or patently without merit. However, contrary to the
State’s argument, the Taylor court further found that, even if it associated mootness with being
frivolous or patently without merit, it would not conclude the defendant’s second postconviction
petition was a successive petition requiring leave of court to file. Taylor, 2022 IL App (2d)
190951, ¶ 25. In this case, the circuit court did dismiss the June 2018 petition on the basis it was
frivolous and patently without merit, and thus we only consider the Taylor court’s second reason
for finding the defendant’s second petition was not a successive one.
¶ 17 As to its second reason for finding the second postconviction petition was not a
successive one, the Taylor court found People v. Sawczenko, 328 Ill. App. 3d 888, 767 N.E.2d
519 (2002), instructive. Taylor, 2022 IL App (2d) 190951, ¶ 25. In Sawczenko, 328 Ill. App. 3d
at 890-91, 767 N.E.2d at 522, the defendant filed a petition for postconviction relief in
September 1997. The petition advanced to the second stage, and the circuit court appointed
counsel, who filed an amended postconviction petition. Sawczenko, 328 Ill. App. 3d at 891, 767
N.E.2d at 522. The State first filed a motion to dismiss the postconviction petition, which the
court denied, and then filed an answer. Sawczenko, 328 Ill. App. 3d at 891, 767 N.E.2d at 522.
When the parties next appeared before the circuit court, the defendant’s postconviction counsel
advised the court the defendant wished to withdraw his petition based on religious beliefs and
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some research he had done. Sawczenko, 328 Ill. App. 3d at 891, 767 N.E.2d at 522. The circuit
court granted the withdrawal after extensively admonishing the defendant about the
consequences of withdrawing a postconviction petition. Sawczenko, 328 Ill. App. 3d at 891, 767
N.E.2d at 523. Over one year after withdrawing the September 1997 petition, the defendant filed
another petition for postconviction relief in August 2000. Sawczenko, 328 Ill. App. 3d at 891,
767 N.E.2d at 523. At a hearing, the defendant made clear he wished to reinstate the allegations
he made in the September 1997 petition and raise additional issues in a supplemental petition.
Sawczenko, 328 Ill. App. 3d at 892, 767 N.E.2d at 523. In a written order, the circuit court found
the defendant’s August 2000 petition to be “ ‘frivolous and patently without merit.’ ”
Sawczenko, 328 Ill. App. 3d at 892, 767 N.E.2d at 523.
¶ 18 On appeal, the reviewing court in Sawczenko considered whether the dismissal of
the August 2000 petition could be affirmed on the ground the petition was “an improper
successive postconviction petition,” which was not a ground found by the circuit court.
Sawczenko, 328 Ill. App. 3d at 897, 767 N.E.2d at 527. The Sawczenko court concluded it could
not. Sawczenko, 328 Ill. App. 3d at 897, 767 N.E.2d at 528. It noted the Postconviction “Act
contemplates the filing of one petition,” and “[a defendant] is to get one complete opportunity to
show that his constitutional rights were substantially denied.” Sawczenko, 328 Ill. App. 3d at
897, 767 N.E.2d at 527. However, the reviewing court noted a circuit court “may allow the
filing of successive petitions when proceedings on a petition were deficient in some fundamental
way.” Sawczenko, 328 Ill. App. 3d at 897, 767 N.E.2d at 528. On the facts before it, the
Sawczenko court found the following:
“Nothing in the record indicates that the proceedings on defendant’s first
postconviction petition were deficient. However, in defendant’s second
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postconviction petition, he alleges that counsel appointed to represent him on his
first petition was ineffective for allowing him to withdraw his petition without
conferring with him sufficiently. We believe that this sufficiently alleges a
deficiency in the proceedings on [the] defendant’s first postconviction petition.”
Sawczenko, 328 Ill. App. 3d at 897, 767 N.E.2d at 528.
The court then reviewed the propriety of the circuit court’s first stage dismissal of the August
2000 petition. Sawczenko, 328 Ill. App. 3d at 897-99, 767 N.E.2d at 528-29.
¶ 19 The Taylor court found the circumstances of the case before it provided a stronger
basis than in Sawczenko for allowing the defendant to file his May 9, 2019, petition as an initial
petition. Taylor, 2022 IL App (2d) 190951, ¶ 28. Unlike in Sawczenko, the recall of the
reviewing court’s mandate led to the circuit court’s dismissal of the first postconviction petition
as moot. Taylor, 2022 IL App (2d) 190951, ¶ 28. The circuit court’s dismissal occurred shortly
after the defendant filed his first petition and before the defendant had any opportunity to
withdraw it. Taylor, 2022 IL App (2d) 190951, ¶ 28. Moreover, unlike in Sawczenko, where the
defendant was in court and requested the withdrawal of his September 1997 petition, the
defendant’s first petition was dismissed without him or counsel being in court or having any
input. Taylor, 2022 IL App (2d) 190951, ¶ 28. Last, unlike in Sawczenko, where the defendant
received an opportunity to show his constitutional rights were substantially violated, the
defendant did not have a similar opportunity. Taylor, 2022 IL App (2d) 190951, ¶ 28.
¶ 20 The Taylor court found additional support for its conclusion the defendant’s
second petition should be treated as a first petition in People v. Little, 2012 IL App (5th) 100547,
977 N.E.2d 902. In Little, 2012 IL App (5th) 100547, ¶ 19, the reviewing court held that, when a
defendant files an initial postconviction petition seeking only to reinstate the right to a direct
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appeal that was lost due to counsel’s ineffectiveness, a subsequent petition is not a successive
petition for purposes of section 122-1(f) of the Postconviction Act (725 ILCS 5/122-1(f) (West
2010)). In its analysis, the Little court noted our supreme court has held the Postconviction “Act
affords every imprisoned defendant one complete opportunity to show a substantial denial of his
constitutional rights.” (Internal quotation marks omitted.) Little, 2012 IL App (5th) 100547,
¶ 20. It then found “section 122-1(f)’s reference to ‘one petition *** without leave of the court’
(725 ILCS 5/122-1(f) (West 2010)) refers to one complete opportunity to collaterally attack ‘the
proceedings which resulted in his or her conviction’ (725 ILCS 5/122-1(a)(1) (West 2010)).”
Little, 2012 IL App (5th) 100547, ¶ 21. When “a defendant has been denied that opportunity
because he used an initial petition solely to reinstate his right to a direct appeal that was forfeited
through no fault of his own, he should be ‘restored to the procedural posture he would have
enjoyed if he had been represented by effective counsel who had timely filed a notice of
appeal.’ ” Little, 2012 IL App (5th) 100547, ¶ 21 (quoting Urinyi v. United States, 607 F.3d 318,
321 (2d Cir. 2010) (per curiam)).
¶ 21 Here, in its order denying defendant leave to file a successive postconviction, the
circuit court found defendant had made an adequate allegation of cause where defendant alleged
Ogwal filed the first postconviction petition without defendant’s authority and knowledge and
attached an affidavit from Ogwal in support of the claim. Thus, as in Little and Taylor,
defendant has alleged he lost his opportunity to collaterally attack his conviction through no fault
of his own. Moreover, unlike in Sawczenko, defendant did not have a chance to withdraw the
first petition filed by Ogwal because he was unaware of it until he received notice of the circuit
court’s dismissal order. Defendant then filed a timely motion to vacate the court’s dismissal
order in an attempt to restore his opportunity for a collateral attack, but the circuit court denied
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the motion. Also, unlike in Sawczenko, where the defendant received an opportunity to show his
constitutional rights were substantially violated, the defendant did not have a similar opportunity
because Ogwal filed the unauthorized petition. Thus, like Taylor, the facts before us present
even a stronger case than Sawczenko for treating defendant’s second postconviction petition as
an initial petition. Accordingly, we find the circuit court erred by treating defendant’s January
2020 petition as a successive postconviction petition. We agree with the parties the proper
remedy is to remand the cause for second-stage postconviction proceedings. See Taylor, 2022 IL
App (2d) 190951, ¶ 38.
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we reverse the Champaign County circuit court’s dismissal
of defendant’s January 2020 postconviction petition and remand the cause for second-stage
postconviction proceedings.
¶ 24 Reversed and remanded with directions.
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