Post-Conviction Lawyers in Springfield
Every defendant convicted of a felony offense has the right to appeal their conviction before the Illinois appellate court. If this first appeal is denied, petition for leave to file the appeal with the Illinois Supreme Court may be filed, but most of these are rejected. This means the court will not hear the appeal. This entire process is considered a continuation of the original case.
Once a defendant has exhausted state remedies (meaning the state court appeal process has ended unsuccessfully), a petition under the Illinois Post-Conviction Hearing Act may be filed with the trial court in which they were convicted. These petitions are not considered part of the original case as are appeals. Instead, post-conviction is considered a collateral remedy.
Petitions under this Act are limited to allegations of constitutional violations that were not and could not have been included in the appeal. For example, some new fact is learned after the trial that raises constitutional issues, such as attorney conflicts, new witnesses, witnesses who want to recant their trial testimony and so on. There are many other possible issues.
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It is important to know that any issues of law that were before the appellate court may not be included in a post-conviction petition under the doctrine of res judicata (Latin for “the thing has been decided”). Issues that could have been raised on appeal but were not are considered waived and also may not be included in a post-conviction petition. However, post-conviction case law has held that in some cases the rules of res judicata and waiver can be relaxed.
There are deadlines for filing these petitions. Typically, a petition must be filed within six months of the denial by the Illinois Supreme Court to hear the case. Petitions containing claims of actual innocence, however, have no filing deadlines.
Most often these petitions are hand-written and filed pro se, which means the petitions are filed directly by a defendant who is representing himself from the penitentiary.
Procedurally, this is a three-stage process.
Stage One: Filing
A county judge reviews the petition and decides whether the petition is with or without merit. Petitions without merit can be readily dismissed by the judge. Petitions with merit move to stage two.
Stage Two: Motion to Dismiss
Petitions not dismissed by the judge are usually assigned local counsel, which means an attorney is appointed to assist at no cost to the petitioner. The appointed attorney may amend the petition to add or remove claims of constitutional violations, update case law, strengthen arguments and so forth.
The State usually files a motion to dismiss the petition. However, all well-plead facts not rebutted by the official record are to be taken as true. This means the State cannot argue facts in their motion to dismiss.
The ultimate stage two question is: assuming the facts in the post-conviction petition are true, has the petitioner made a clear showing of a substantial constitutional violation?
For example, consider a hypothetical claim of ineffective assistance of counsel, the Petitioner must show two things: (1) that his attorney’s performance fell below an objective standard of reasonableness, and (2) the attorney’s inadequate representation prejudiced the Petitioner.
For instance, trial counsel did not object to certain evidence being admitted at trial that should have been excluded. Arguably this satisfies (1). And because of the attorney’s inadequate representation, the jury was allowed to see/hear evidence it shouldn’t have, and such evidence was strongly suggestive of guilt. This would arguably satisfy (2).
If the judge determines that the Petitioner has made an adequate showing of a substantial constitutional violation, the case must proceed to a stage three evidentiary hearing.
Step Three: Evidentiary Hearing
What happens in step three depends on the individual case. Typically, though, an evidentiary hearing is held where the petitioner presents evidence to support the alleged constitutional violations listed in the petition, such as witness testimony, laboratory results, etc.
A Petitioner may appeal adverse rulings at all three stages. This means, for example, if the judge grants the State’s motion to dismiss, that ruling can be appealed.