The Fifth District Appellate Court has upheld a lower court’s ruling that a man convicted of battery failed to provide sufficient grounds for the court to allow a successive post-conviction petition.

Michael Foster had appealed a judgment by St. Clair County Circuit Judge John Baricevic denying his motion for leave to file a successive post-conviction petition under the Post-Conviction Hearing Act.

Baricevic had denied Foster’s motion "after determining that he failed to adequately explain his reasons for not raising his new claim of error in a timely fashion," the order states.

As a result, the trial court maintained that Foster didn’t provide a sufficient basis for the court to allow a successive post-conviction petition.

Foster was convicted by a St. Clair County jury in August 2004 of two counts of aggravated battery with a firearm and one count of aggravated discharge of a firearm.

At Foster’s sentencing hearing, the state maintained that consecutive sentences were mandated by state law.

In its case, the state asserted that the two Class X felony counts of aggravated battery with a firearm involved separate acts, by Foster, of inflicting severe bodily injury. Specifically, the state asserted that the Foster was convicted of shooting the victim two times, once in the neck and once in the leg, inflicting severe injury with each shot, the order states.

Defense counsel argued that Foster’s acts amounted to one course of conduct. As a result, it maintained that consecutive sentences were not mandated.

The court agreed with the state and found that each count of aggravated battery with a firearm involved separate acts; thus, the mandatory consecutive sentencing provisions of state law was applicable.

Foster was sentenced to a consecutive 15-year prison term on both counts of aggravated battery with a firearm, and the court determined that the one count of aggravated discharge of a firearm merged with the other counts.

"In December 2004, Foster filed a motion to reconsider the sentence, arguing that he should have received a concurrent sentence because there was only one victim; that the circuit court erred where it found that the victim had suffered severe bodily injury; and that his sentence was excessive," the order states.

Following a hearing on the defendant's motion to reconsider, the court denied the motion and Foster filed a timely direct appeal.

On direct appeal, Foster’s sole claim was that "he should have been convicted of one count of aggravated battery with a firearm because the convictions involved one physical act - the rapid fire shooting of the victim," according to the order.

The appellate court affirmed the circuit court and held that the defendant was properly convicted of both counts where the victim was shot twice, resulting in two separate injuries.

After a series of filings, Foster sought leave to file the successive post-conviction petition.

In the appellate court’s opinion, Justice John B. Barberis Jr. noted that the only sole issue on appeal is whether the circuit court erred in denying the defendant leave to file his successive postconviction petition.

“Initially, we note that successive postconviction actions are disfavored by Illinois courts,” he wrote.

Barberis also pointed out that, based on the record, the court concluded that Foster failed to provide sufficient documentation to support the factual allegations contained in his request for leave to file a successive post-conviction.

“Based on the foregoing, we find that the defendant has failed to demonstrate cause for his failure to raise the present claim in the initial post-conviction proceeding,” he wrote. “Because the defendant failed to demonstrate cause, we need not reach whether he has demonstrated prejudice.”

As a result, the appeals court ruled that Foster has no right to a successive post-conviction petition and it upheld the circuit court’s order.

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Illinois Fifth District Appellate Court
S 14th St
Mt Vernon, IL - 62864

St. Clair County Circuit Court
10 Public Square
Belleville, IL - 62220-1623

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