People v. Jackson ( 2016 )

2016 IL App (1st) 143025No. 1-14-3025
Opinion filed September 30, 2016
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 03 CR 22273
)
DARRON JACKSON, ) The Honorable
) Noreen Valeria Love,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Hall and Reyes concurred in the judgment and opinion.
OPINION
¶1 After a jury trial, defendant Darron Jackson, age 16 at the time of the
offense, was convicted as an adult of the first degree murder of Kenneth Porter
and of personally discharging a firearm that caused another's death. He was
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subsequently sentenced to 50 years in the Illinois Department of Corrections
(IDOC).
¶2 After his conviction was affirmed and his first postconviction petition
was dismissed as frivolous and patently without merit, defendant filed a motion
for leave to file a successive postconviction petition, arguing: (1) that a 50-year
sentence for a minor violates the eighth amendment's prohibition against cruel
and unusual punishment (U.S. Const., amend. VIII), 1 pursuant to recent
decisions concerning minors by the United States Supreme Court, such as
Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455 (2012); and (2) that the
automatic transfer provision of Illinois' Juvenile Court Act of 1987 (705 ILCS
405/5-130 (West 2002)) violates due process, the proportionate penalties clause
of the Illinois Constitution (Ill. Const. 1970, art. I, § 11),2 and the eighth
amendment (U.S. Const., amend. VIII).
1
The eighth amendment applies to the states through the fourteenth
amendment. Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). The Illinois
Supreme Court has held that "the Illinois proportionate penalties clause is co-
extensive with the eighth amendment's cruel and unusual punishment clause."
People v. Patterson, 2014 IL 115102, ¶ 106.
2
Although section 11 does not contain the phrase "proportionate penalties,"
it is commonly referred to in our case law as "the proportionate penalties clause of
the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11)." People v. Ligon,
2016 IL 118023, ¶ 1. Section 11 states, in relevant part, that "[a]ll penalties shall
be determined both according to the seriousness of the offense and with the
objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I,
§ 11.
2
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¶3 The trial court denied defendant leave to appeal, and it is this order which
is at issue before us. For the following reasons, we affirm.
¶4 BACKGROUND
¶5 The State's evidence at trial showed that, on September 10, 2003, at
10:30 a.m., defendant shot and killed Kenneth Porter as Porter was standing in
the middle of an intersection at Madison Street and Fourth Avenue, in
Maywood, Illinois. There are no issues raised on this appeal concerning the
evidence at trial. This court has already discussed the evidence at trial in both
our Rule 23 orders affirming his conviction on appeal (People v. Jackson, No.
1-04-3656 (2007) (unpublished order pursuant to Supreme Court Rule 23)) and
affirming the dismissal of his first postconviction petition (People v. Jackson,
No. 1-08-1546 (2009) (unpublished order pursuant to Supreme Court Rule 23)).
We incorporate these orders by reference, and we will not repeat here our prior
discussion of the evidence at trial. The issues raised on appeal are purely legal
issues concerning defendant's sentencing.
¶6 After a jury trial, defendant was convicted on September 2, 2004, of first
degree murder. The State proceeded on a single charge of enhanced first degree
murder which meant that they had to find, beyond a reasonable doubt, that
defendant, while armed with a firearm, personally discharged that firearm that
proximately caused the death of the victim. The jury was so instructed
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accordingly and returned a verdict of guilty, and defendant was sentenced by
the trial court on September 28, 2004, to 60 years with IDOC.
¶7 At the sentencing hearing on September 28, the assistant State's Attorney
(ASA) observed that defendant was subject to a mandatory firearm
enhancement, which provided that "25 years or up to a term of natural life shall
be added to the term of imprisonment imposed by the court." 3 As a result, the
minimum possible sentence was 45 years, and the maximum was natural life.
The ASA asked for natural life. The trial court imposed a sentence of 60 years
which the trial court noted would be served at 100% of the time. 4
¶8 On appeal, this court affirmed defendant's conviction but reduced his
sentence from 60 to 50 years. Jackson, No. 1-04-3656 (2007) (unpublished
order pursuant to Supreme Court Rule 23). A year after his direct appeal,
3
The firearm enhancement provision, which applied to defendant's sentence,
stated in relevant part that "if, during the commission of the offense, the person
personally discharged a firearm that proximately caused *** death to another
person, 25 years or up to a term of natural life shall be added to the term of
imprisonment imposed by the court." (Emphasis added.) 730 ILCS 5/5-8-
1(a)(1)(d)(iii) (West 2002). However, the law was changed this year so that the
enhancement is no longer mandatory for individuals under age 18, such as
defendant. Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-
105(b)); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (same).
4
The truth in sentencing statute, which applied to defendant's sentence,
provided in relevant part that "a prisoner who is serving a term of imprisonment for
first degree murder *** shall receive no good conduct credit and shall serve the
entire sentence imposed by the court." (Emphasis added.) 730 ILCS 5/3-6-
3(a)(2)(i) (West 2002). The quoted section reads exactly the same today,
substituting only the word "sentence" for the words "good conduct." See Pub. Act
99-642, § 560 (eff. July 28, 2016) (amending 730 ILCS 5/3-6-3).
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defendant retained counsel,5 who filed a postconviction petition on March 24,
2008, and a further amended petition on April 11, 2008. On May 23, 2008, the
trial court dismissed the amended postconviction petition at the first stage as
frivolous and patently without merit, and this court affirmed the dismissal on
appeal. Jackson, No. 1-08-1546 (2009) (unpublished order pursuant to
Supreme Court Rule 23).
¶9 On May 15, 2014, defendant filed a pro se motion for leave to file his
first successive postconviction petition, arguing that, since his claims were
based on recent changes in the law announced in Miller, 567 U.S. __, 132 S.Ct.
2455, and related cases, he could not have raised these claims in his direct
appeal or in his original postconviction petition which was filed in 2008.
¶ 10 In his pro se motion and accompanying petition, defendant argued, first,
that his 50-year sentence was a de facto life sentence, because the sentence
exceeded his life expectancy. 6 He argued that his sentence, which included no
5
In the March 24, 2008, petition, counsel stated that he was retained less
than one month before.
6
In his petition, defendant argued that, based on statistics from the Center for
Disease Control and Prevention, his life expectancy was 60 to 63.8 years. In his
brief to this court, he stated: "The actual life expectancy for somebody born in
1987 is 64.7 years, not 60 to 63.8 years, as Jackson wrote in his petition."
Although this has no effect on today's decision, this court visited the website for
the Center for Disease Control and Prevention, which contained an "expectation of
life" table for the year 2011. A person born in 1987 would be 24 in the year 2011.
According to the table which was divided into five-year increments, a black man,
age 25 in 2011, could expect to live another 49 years, for a total life expectancy of
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No. 1-14-3025
eligibility for parole, was, in effect, a life sentence without parole and thus a
violation of the eighth amendment's prohibition of cruel and unusual
punishment, as that term has been recently interpreted by the United States
Supreme Court in Miller, 567 U.S. __, 132 S.Ct. at 2460 ("mandatory life
without parole for those under the age 18 at the time of their crimes violates the
Eighth Amendment's prohibition on 'cruel and unusual punishment' ").
Defendant argued that, if mandatory life without parole for a juvenile does not
serve any "penological" goals then neither does a de facto life sentence without
parole. Miller, 567 U.S. __, 132 S.Ct. at 2465 ("the distinctive attributes of
youth diminish the penological justifications for imposing the harshest
sentences on juvenile offenders, even when they commit terrible crimes").
¶ 11 Defendant argued, second, that the automatic transfer provision of the
Illinois Juvenile Court Act violates federal and state due process, the eighth
amendment and the proportionality clause of the Illinois Constitution,
particularly when combined with the firearm enhancement (730 ILCS 5/5-8-
74 years. Centers for Disease Control and Prevention, National Vital Statistics
Reports, Vol. 64, No. 11, at 3 (Sept. 22, 2015), available at http://
www.cdc.gov/nchs/data/nvsr/nvsr64 _11.pdf. Seventy-four years would be 8 years
after defendant's expected release age of 66 years old.
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1(a)(1)(d)(iii) (West 2002))7 and the truth in sentencing statutes (730 ILCS 5/3-
6-3(a)(2)(i) (West 2002)). 8
¶ 12 On August 29, 2014, the trial court denied defendant leave to file a
successive postconviction petition; and on October 23, 2014, this court allowed
defendant's late notice of appeal.
¶ 13 ANALYSIS
¶ 14 On this appeal, defendant claims that the trial court erred in denying his
motion for leave to file his first successive postconviction petition, because
recent changes in the law prevented him from filing his claims earlier. For the
following reasons, we affirm.
¶ 15 I. Stages of a Postconviction Petition
¶ 16 Although the issue before us is the very preliminary question of whether
defendant's petition can even be filed, we provide here a summary of the stages
to show how the subsequent process sheds light on this preliminary step.
¶ 17 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2014)) provides a statutory remedy for criminal defendants who claim their
7
See footnote 3 for a description of the firearm enhancement provision,
which applied to defendant's sentence (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002))
and subsequent changes. Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730
ILCS 5/5-4.5-105(b)); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (same).
8
See footnote 4 for a description of the truth in sentencing statute. 730 ILCS
5/3-6-3(a)(2)(i) (West 2002).
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constitutional rights were violated at trial. People v. Edwards, 2012 IL 111711,
¶ 21. The Act is not intended to be a substitute for an appeal; instead, it is a
collateral proceeding which attacks a final judgment. Edwards, 2012 IL
111711, ¶ 21.
¶ 18 The Act provides for three stages of review by the trial court. People v.
Domagala, 2013 IL 113688, ¶ 32. At the first stage, the trial court may
summarily dismiss a petition that is frivolous or patently without merit. 725
ILCS 5/122-2.1(a)(2) (West 2014); Domagala, 2013 IL 113688, ¶ 32.
¶ 19 However, for a successive petition to even be filed, the trial court must
first determine whether the petition (1) states a colorable claim of actual
innocence (Edwards, 2012 IL 111711, ¶ 28) or (2) establishes cause and
prejudice (People v. Smith, 2014 IL 115946, ¶ 35). This standard is higher than
the normal first-stage "frivolous or patently without merit" standard applied to
initial petitions. Edwards, 2012 IL 111711, ¶¶ 25-29; Smith, 2014 IL 115946,
¶ 34 ("the cause-and-prejudice test for a successive petition involves a higher
standard than the first-stage frivolous or patently without merit standard that is
set forth in section 122-2.1(a)(2) of the Act").
¶ 20 Since a filed successive petition has already satisfied a higher standard,
the first stage is rendered unnecessary and the successive petition is docketed
directly for second-stage proceedings. See People v. Sanders, 2016 IL 118123,
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¶¶ 25, 28 (with a successive petition, the initial issue before the trial court is
whether it "should be docketed for second-stage proceedings"); People v.
Wrice, 2012 IL 111860, ¶ 90 ("reversing the trial court's order denying leave to
file his second successive postconviction petition and remand[ing] to the trial
court for *** second-stage postconviction proceedings"); People v. Jackson,
2015 IL App (3d) 130575, ¶ 14 ("When a defendant is granted leave to file a
successive postconviction petition, the petition is effectively advanced to the
second stage of postconviction proccedings."); People v. Almodovar, 2013 IL
App (1st) 101476, ¶ 1 (reversing the trial court's denial of the defendant's
motion for leave to file a successive petition and remanding for second-stage
proceedings).
¶ 21 If a trial court permits a successive petition to be filed or does not dismiss
an initial petition at the first stage, the petition then advances to the second
stage, where counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4
(West 2014); Domagala, 2013 IL 113688, ¶ 33; Wrice, 2012 IL 111860, ¶ 90
(after reversing the trial court's denial of leave to file a successive petition, the
supreme court remanded "for appointment of postconviction counsel and
second-stage postconviction proceedings"). After counsel determines whether
to amend the petition, the State may file either a motion to dismiss or an answer
to the petition. 725 ILCS 5/122-5 (West 2012); Domagala, 2013 IL 113688,
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¶ 33. At the second stage, the trial court must determine "whether the petition
and any accompanying documentation make a substantial showing of a
constitutional violation." People v. Edwards, 197 Ill. 2d 239, 246 (2001).
¶ 22 "The second stage of postconviction review tests the legal sufficiency of
the petition. Unless the petitioner's allegations are affirmatively refuted by the
record, they are taken as true, and the question is whether those allegations
establish or 'show' a constitutional violation. In other words, 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, which if proven at an evidentiary
hearing, would entitle petitioner to relief." (Emphasis in original.) Domagla,
2013 IL 113688, ¶ 35.
¶ 23 Both the second stage and a motion for leave to file a successive petition
require a review of "the petition and any accompanying documentation."
Edwards, 197 Ill. 2d at 246 (second stage review); Edwards, 2012 IL 11171,
¶ 24 (motion for leave to file a successive petition). For the second stage to not
be superfluous for a successive petition, it must be that the "substantial
showing" required at the second stage is greater than the "probability" required
for a successive petition to receive leave for filing. Smith, 2014 IL 115946, ¶ 29
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(expressing a desire not to "render the entire three-stage postconviction process
superfluous").
¶ 24 If the defendant makes a "substantial showing" at the second stage, then
the petition advances to a third-stage evidentiary hearing. Domagala, 2013 IL
113688, ¶ 34. At a third-stage evidentiary hearing, the trial court acts as
factfinder, determining witness credibility and the weight to be given particular
testimony and evidence, and resolving any evidentiary conflicts. Domagala,
2013 IL 113688, ¶ 34. This third stage is the same for both initial and
successive petitions. Cf. Smith, 2014 IL 115946, ¶ 29 ("The legislature clearly
intended for further proceedings on successive postconviction petitions.").
¶ 25 II. Successive Petition
¶ 26 Although our supreme court has made clear that the Act contemplates
only one postconviction proceeding, "[n]evertheless, [the supreme] court has, in
its case law provided two bases upon which the bar against successive
proceedings will be relaxed" (Edwards, 2012 IL 111711, ¶ 22). Those two
bases are: (1) cause and prejudice; and (2) actual innocence. Edwards, 2012 IL
111711, ¶ 22. Defendant has alleged only the first on the instant appeal, so we
discuss only this basis below.
¶ 27 Under the cause-and-prejudice test, a defendant must establish both: (1)
cause for his or her failure to raise the claim earlier; and (2) prejudice stemming
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from his or her failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People
v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)).
¶ 28 Our supreme court has held that "a defendant's pro se motion for leave to
file a successive postconviction petition will meet the section 122-1(f) cause
and prejudice requirement if the motion adequately alleges facts demonstrating
cause and prejudice." Smith, 2014 IL 115946, ¶ 34. "[L]eave of court to file a
successive postconviction petition should be denied 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." Smith, 2014 IL 115946, ¶ 35.
¶ 29 III. Standard of Review
¶ 30 Next, we discuss the appropriate standard of review for defendant's claim
of cause and prejudice.
¶ 31 In Smith, the issue was whether the Act prohibited the denial of leave
when the pleadings of the petition made an " 'arguable' " showing of cause and
prejudice. Smith, 2014 IL 115946, ¶ 25 (quoting the defendant's petition). The
Smith court observed that the standard of review for "this issue of statutory
construction" was de novo. Smith, 2014 IL 115946, ¶ 21. However, the Smith
court did not explicitly state, after resolving this issue of statutory construction,
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No. 1-14-3025
whether the standard of review for a trial court's grant or denial of leave to file a
successive petition was then also de novo.
¶ 32 Since cause-and-prejudice claims may fail either as a matter of law or
due to an insufficiency of the petition and supporting documents, we conclude,
as have other appellate courts, that a de novo standard of review also applies.
People v. Diggins, 2015 IL App (3d) 130315, ¶ 7 (applying a de novo standard
of review to the trial court's denial of the defendant's motion to file a successive
petition alleging cause and prejudice, because this issue is "resolved on the
pleadings" alone); People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 38
(applying a de novo standard of review to the trial court's denial of the
defendant's motion to file a successive petition alleging cause and prejudice).
See also People v. Wrice, 2012 IL 111860, ¶ 50 (applying a de novo standard of
review to the State's arguments concerning lack of prejudice to the defendant,
since these "arguments raise purely legal issues").
¶ 33 When our review is limited to documentary materials, as it is here, then
our review is generally de novo. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d
147, 154 (2007) ("Where the circuit court does not hear testimony and bases its
decision on documentary evidence, the rationale underlying a deferential
standard of review is inapplicable and review is de novo."); Dowling v. Chicago
Options Associates, Inc., 226 Ill. 2d 277, 285 (2007) (where the trial court "did
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No. 1-14-3025
not conduct an evidentiary hearing" or "make any findings of fact," and "relied
on the parties' oral argument and the record," "we review the court's ruling on
this issue de novo").
¶ 34 Thus, we will apply a de novo review to both of defendant's claims. De
novo consideration means that we perform the same analysis that a trial judge
would perform. In re N.H., 2016 IL App (1st) 152504, ¶ 50 (citing Khan v.
BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011)).
¶ 35 IV. The Record
¶ 36 The next question is what we are permitted to review. In Smith, our
supreme court held that: "leave of court to file a successive postconviction
petition should be denied 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."
(Emphases added.) Smith, 2014 IL 115946, ¶ 35.
¶ 37 Thus, we must certainly consider the pro se petition itself and any
supporting documentation that defendant provided. Edwards, 2012 IL 111711,
¶ 24. However, the Smith court left open the question of whether we and the
trial court may consider the underlying record. The Smith court stated: "The
parties have not argued or briefed whether the trial court may consider the
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No. 1-14-3025
record in ruling on a petition brought under section 122-1(f) of the Act.
Accordingly, we do not address that issue." Smith, 2014 IL 115946, ¶ 35 n.3.9
¶ 38 After making this observation, the Smith court then proceeded to discuss
what happened at trial. Smith, 2014 IL 115946, ¶ 37. However, before
discussing the events and statements at trial, the court stated that these facts
were "undisputed." Smith, 2014 IL 115946, ¶ 37. Based on the prior footnote
and the court's statement that these facts were undisputed, it is unclear whether
these facts were in the petition and supporting documentation before the court.
¶ 39 As in Smith, the Edwards court relied primarily on the failings found on
the face of the petition and supporting documentation when it affirmed the trial
court's denial of leave. In Edwards, the supreme court found "no indication"
that the defendant had tried to subpoena his alibi witnesses, who were both
known to the defendant at the time of trial, and thus their affidavits did not
qualify as "newly discovered" evidence. Edwards, 2012 IL 111711, ¶¶ 35-37.
The supreme court stated that "there was no attempt to subpoena" and "no
explanation as to why." Edwards, 2012 IL 111711, ¶ 37. If the petition had
alleged an attempt and offered an explanation, then there would have been some
9
Section 122-2.1 provides that, "after the filing" of the petition, "the court
may examine the court file of the proceeding in which the petitioner was
convicted." 725 ILCS 5/122-2.1 (West 2014). However, in the instant appeal, we
are considering a petition that has not yet been filed, which explains why the Smith
court observed that this was an open issue.
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"indication." Edwards, 2012 IL 111711, ¶¶ 36-37. Thus, the failings found
were apparent on the face of the petition itself.
¶ 40 In addition, the Edwards court found that the codefendant's affidavit did
not raise a colorable claim of actual innocence when the defendant was
convicted under a theory of accountability and the affidavit did "not assert that
petitioner was not present when the shooting took place." (Emphasis in
original.) Edwards, 2012 IL 111711, ¶¶ 38-39. Again, the failing found was
apparent on the face of the documentation itself.
¶ 41 As of today, there are no published Illinois cases discussing Smith's
footnote 3 (Smith, 2014 IL 115946, ¶ 35 n.3), except for one by the same author
of this opinion raising the same issue. People v. Jones, 2016 IL App (1st)
123371, ¶ 79.
¶ 42 Until our supreme court resolves this issue, we will rely primarily on the
petition and its supporting documentation in deciding this preliminary question
of whether the petition may even be filed. In addition, we will take judicial
notice of our prior opinions and orders. Shotts, 2015 IL App (4th) 130695, ¶¶ 7,
71. See also Village of Riverwoods v. BG Limited Partnership, 276 Ill. App. 3d
720, 724 (1995) (a court may properly take judicial notice of publicly available
records "where such notice will aid in the efficient disposition of a case" (cited
with approval by Wackrow v. Niemi, 231 Ill. 2d 418, 421 n.1 (2008))); In re
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McDonald, 144 Ill. App. 3d 1082, 1084 (1986) (a court may take judicial notice
of matters of record in other cases in the same court).
¶ 43 From the perspective of the orderly administration of justice, it makes
sense to review primarily at this very preliminary stage the documents filed by
defendant rather than the entire trial court record. As we explained in the prior
section on the postconviction stages, the postconviction process provides other
stages where a petition may be more substantially judged. Edwards, 197 Ill. 2d
at 246 ("a substantial showing" is not required until the second stage). The
Smith court observed: "From a practical standpoint, if a petitioner is required
to establish cause and prejudice conclusively prior to being granted leave to file
a successive petition, it may render the entire three-stage postconviction process
superfluous." Smith, 2014 IL 115946, ¶ 29 ("The legislature clearly intended for
further proceedings on successive petitions.").
¶ 44 Both Edwards and Smith discussed the amount of documentation which
the defendant must submit at this preliminary stage. In Edwards, the supreme
court stated: "Defendant not only has the burden to obtain leave of court, but
also 'must submit enough in the way of documentation to allow a circuit court
to make that determination.' " Edwards, 2012 IL 111711, ¶ 24 (quoting People
v. Tidwell, 236 Ill. 2d 150, 161 (2010)). In Smith, the supreme court observed
that "the legislature intended that the cause-and-prejudice determination be
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No. 1-14-3025
made on the pleadings prior to the first stage," that defendant must "allege[]
facts demonstrating cause and prejudice," and that he must " 'submit enough in
the way of documentation to allow a circuit court to make that determination.' "
Smith, 2014 IL 115946, ¶¶ 33-35 (quoting Tidwell, 236 Ill. 2d at 161).
¶ 45 Thus, we will now review defendant's two claims primarily in light of the
documentation he submitted, as well as our prior opinions and orders.
¶ 46 V. Cause
¶ 47 As we noted above, under the cause-and-prejudice test, a defendant must
first establish cause for his or her failure to raise the claim earlier. Edwards,
2012 IL 111711, ¶ 22 (citing People v. Pitsonbarger, 205 Ill. 2d 444, 459
(2002)). Defendant argues that he established cause because he could not have
raised claims based on Miller in his original 2008 petition, when Miller was not
even decided until 2012. See also People v. Nieto, 2016 IL App (1st) 121604,
¶ 39 ("Illinois procedural rules regarding forfeiture cannot be applied to
juvenile defendants raising claims under Miller"); People v. Warren, 2016 IL
App (1st) 090884-C, ¶ 48 (defendant was not barred from raising his challenge
on appeal from the denial of leave to file a successive petition, where "Miller
was not available for earlier postconviction proceedings"); People v. Sanders,
2016 IL App (1st) 121732-B, ¶ 19 (Miller "changed the law and give
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No. 1-14-3025
postconviction petitioners cause for failing to raise the issue in proceedings that
preceded" it).
¶ 48 In addition, in 2014, the Illinois Supreme Court held in People v. Davis,
2014 IL 115595, ¶¶ 28, 42, both that Miller applied retroactively and that
"Miller's new substantive rule constitutes 'cause' because it was not available
earlier." Similarly, the United States Supreme Court held two years later that
Miller applied retroactively. Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct.
718, 735-36 (2016) (after Miller, juveniles who received mandatory or
automatic life without parole "must be given the opportunity to show their
crime did not reflect irreparable corruption" as opposed to transient
immaturity).
¶ 49 On appeal, the State does not argue that defendant failed to establish
cause. Instead, the State argues that "irrespective of whether or not defendant
can show the requisite 'cause,' he cannot establish any 'prejudice' " because (1)
Miller does not apply to defendant's sentence of a certain number of years; and
(2) Illinois courts have previously rejected other constitutional challenges to the
automatic transfer provision.
¶ 50 Thus, we will proceed to consider next whether defendant has established
prejudice, considering each of his claims separately: his claim that his 50-year
sentence violates the eighth amendment; and his claim that the automatic
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No. 1-14-3025
transfer provision violates due process, the proportionate penalties clause and
the eighth amendment.
¶ 51 VI. 50-Year Sentence
¶ 52 Defendant argues that his 50-year sentence violates the eighth
amendment's ban on cruel and unusual punishments, particularly in light of the
fact that our legislature recently changed the law governing firearm
enhancements. When defendant was sentenced, a firearm enhancement was
mandatory. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002). However, effective
this year, the legislature specifically added a provision, so that firearm
enhancements are no longer mandatory for juvenile defendants. Pub. Act 99-69,
§ 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(b)); Pub. Act 99-258, §
15 (eff. Jan. 1, 2016) (same).
¶ 53 Effective this year, our legislature made significant changes to the law
governing the sentencing of juvenile defendants. First, the legislature raised the
age under the automatic transfer statute from 15 to 16 years old, so that 15-year-
olds are no longer subject to automatic transfer to adult court for first-degree
murder and other crimes. Pub. Act 99-258, § 5 (eff. Jan. 1, 2016) (amending
705 ILCS 405/5-130(1)(a) (West 2014)).10 Second, the legislature eliminated
the mandatory firearm enhancement for juvenile defendants. Pub. Act 99-69, §
10
This change has no effect on the issues at bar because defendant was 16,
not 15, years old at the time of the offense.
20
No. 1-14-3025
10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(b)); Pub. Act 99-258, § 15
(eff. Jan. 1, 2016) (same). The enhancement is now discretionary for juveniles.
Third, the legislature eliminated the mandatory life sentences which had been
previously required for juveniles who had murdered individuals in certain
categories, such as police officers and emergency medical technicians. Pub. Act
99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(c)); Pub. Act 99-
258, § 15 (eff. Jan. 1, 2016) (same). Instead of the mandatory life sentence
previously required for this type of first-degree murder, the legislature required
the imposition of "not less than 40 years of imprisonment." Pub. Act 99-69, §
10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(c)); Pub. Act 99-258, § 15
(eff. Jan. 1, 2016) (same).
¶ 54 When defendant was sentenced, he was subject to a sentencing range
with a minimum of 45 years and a maximum of natural life. The trial court
sentenced him within that range, to a sentence of 60 years, which the appellate
court reduced to 50 years. Today, for the same offense, defendant would have
faced a sentencing range with a minimum of 20 years (730 ILCS 5/5-4.5-20(a)
(West 2014)) and a maximum of natural life. 11
11
The maximum sentence for first-degree murder is typically 60 years. 730
ILCS 5/5-4.5-20(a) (West 2014). However, in its discretion, the trial court may
impose on a juvenile a firearm enhancement of 25 years or up to a term of natural
life. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West Supp. 2015) ("if, during the commission
of the offense, the person personally discharged a firearm that proximately caused
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¶ 55 Defendant's 50-year sentence is within today's permissible sentencing
range of 20 years to natural life. Thus, defendant's sentence is not excessive
when measured against the standard of today's statutes, which were newly
revised by our legislature in light of the recent changes in case and statutory law
which defendant now argues on appeal.
¶ 56 If our supreme court12 believes that our legislature's changes did not go
far enough to comply with recent United States Supreme Court law or that the
changes should apply retroactively to defendant despite an express legislative
statement to the contrary, 13 that is for our highest court to decide. The decision
to resentence every similarly situated defendant should not be made at the
*** death *** 25 years or up to a term of natural life shall be added to the term of
imprisonment"); 730 ILCS 5/5-4.5-105(b) (West Supp. 2015) (the trial court may,
in its discretion, impose or decline to impose on a juvenile any otherwise
applicable firearm enhancement).
12
Compare People v. Wilson, 2016 IL App (1st) 141500, ¶ 35 (observing
that the task of drawing a different line is up to "the Illinois or United States
Supreme Court" not the appellate court, in a case where a 17-year-old was
sentenced to 31 years in prison) with People v. Nieto, 2016 IL App (1st) 121604,
¶¶ 4, 12, 14 n.1, 49 (remanding for resentencing, where a 17-year-old was
sentenced to 78 years in prison with an expected release age of 94 and "where the
record affirmatively indicates that the trial court has deviated from the principles"
governing the sentencing of juveniles).
13
The legislature's 2016 changes state specifically that they apply only "[o]n
or after the effective date of this amendatory Act of the 99th General Assembly,
when a person commits an offense and the person is under 18 years of age at the
time of the commission of the offense." Pub. Act. 99-69, § 10 (eff. Jan. 1, 2016)
(adding 730 ILCS 5/5-4.5-105(a)); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016)
(same). See also People v. Wilson, 2016 IL App (1st) 141500, ¶ 16 (interpreting
this provision, this court held that, "based on its plain language, the legislature
indicated a prospective application of the statute").
22
No. 1-14-3025
appellate court level. A finding of prejudice on the ground that defendant's 50-
year sentence violated the eighth amendment would both call into question the
new sentencing scheme that our legislature just adopted in response to Miller,
and would prompt a call to resentence every juvenile serving a sentence of 50
years or more.
¶ 57 If an Illinois court was going to hold that a de facto life sentence qualifies
for consideration under Miller, then we would need a consistent and uniform
policy on what constitutes a de facto life sentence. Is it simply a certain age
upon release? If so, is it age 65, as defendant seems to argue for in his appellate
brief, or 90? 14 Should the age vary by ethnicity, race or gender? If we are
going to consider more than age, what societal factors or health concerns should
impact our assessment of a de facto life sentence. These are policy
considerations that are better handled in a different forum.
¶ 58 In light of our supreme court's holding in Davis that Miller permits a
juvenile sentence of natural life without parole so long as the sentence is
14
Compare Nieto, 2016 IL App (1st) 121604, ¶¶ 14 n.1, 49 (remanding for
resentencing where the juvenile's expected release age was 94) and People v.
Sanders, 2016 IL App (1st) 121732-B, ¶¶ 1-2 (reversing the denial of leave to file a
successive petition where a 17-year-old received a 100-year sentence), with
Wilson, 2016 IL App (1st) 141500, ¶ 35 (rejecting a Miller challenge where a 17-
year-old received a 31-year sentence). See also People v. Reyes, 2016 IL 119271,
¶¶ 10, 12 (per curiam) (remanding for resentencing where the juvenile's expected
release age was 105, while observing that a 32-year sentence is "not a de facto life
sentence" for a 16-year-old).
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No. 1-14-3025
discretionary (Davis, 2014 IL 115595, ¶ 43),15 this court cannot find prejudice
based on the ground that defendant's 50-year sentence is excessive or in
violation of the eighth amendment's cruel and unusual penalties clause. See
also Davis, 2014 IL 115595, ¶ 32 ("We hold that Miller did not render the
statutory scheme under which defendant was sentenced facially
unconstitutional.") As our supreme court has observed, "leave of court to file a
successive postconviction petition should be denied 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."
Smith, 2014 IL 115946, ¶ 35.
¶ 59 VII. Automatic Juvenile Transfer
¶ 60 Defendant also claims that the automatic transfer provision of Illinois'
Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2002)) violates due
process, the proportionate penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. I, § 11), and the eighth amendment (U.S. Const., amend. VIII).
¶ 61 The automatic juvenile transfer provision provides, in relevant part, that:
15
See also Montgomery, 577 U.S. at __, 136 S.Ct. at 736 (holding that the
Miller court did not bar life without parole, although it concluded that "the
sentence of life without parole is disproportionate for the vast majority of juvenile
offenders" and that juveniles "must be given the opportunity to show their crime
did not reflect irreparable corruption").
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No. 1-14-3025
"(1)(a) The definition of delinquent minor under Section 5-120 of this
Article shall not apply to any minor who at the time of an offense was at
least 16 years of age and who is charged with: (i) first degree murder [.]
****
These charges and all other charges arising out of the same incident shall
be prosecuted under the criminal laws of this State." 705 ILCS 405/5-
130 (West Supp. 2015).
¶ 62 At the time of the offense in question, the provision provided, in relevant
part, that:
"(1)(a) The definition of delinquent minor under Section 5-120 of this
Article shall not apply to any minor who at the time of an offense was at
least 15 years of age and who is charged with first degree murder[.]
****
These charges and all other charges arising out of the same incident shall
be prosecuted under the criminal laws of this State." 705 ILCS 405/5-
130 (West 2002).
¶ 63 The key difference between the two provisions is that the former
provision applied to 15-year-old minors, whereas the current provision applies
only to minors who are 16 years or older. However, as we observed above, this
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No. 1-14-3025
difference has no effect on our case, because the minor in the instant case was
16 years old at the time of the offense.
¶ 64 On appeal, defendant argues that we should find that the Illinois Supreme
Court's decision in People v. Patterson, 2014 IL 115102, was "incorrectly
decided." In Patterson, our supreme court rejected due process challenges to
the automatic transfer statute, as well as challenges made under the eighth
amendment (U.S. Const., amend. VIII) and the Illinois proportionate penalties
clause (Ill. Const. 1970, art. I, § 11). Patterson, 2014 IL 115102, ¶¶ 35, 89, 98,
100, 106. We decline defendant's invitation to find that Patterson was wrongly
decided. Wilson, 2016 IL App (1st) 141500, ¶ 29 (applying Patterson, after the
2016 United States Supreme Court decision in Montgomery, 577 U.S. __, 136
S.Ct. 718).16
¶ 65 CONCLUSION
¶ 66 On this appeal, defendant challenged the trial court's denial of his motion
for leave to file a successive petition. His motion and petition had argued: (1)
that a 50-year sentence for a minor violates the eighth amendment's prohibition
against cruel and unusual punishment (U.S. Const., amend. VIII), pursuant to
16
In his reply brief, defendant states that he "recognizes that this Court is
bound by Patterson, but maintains, given the continuing evolving law in this area
and in order to preserve this issue for further appeals, that Patterson was wrongly
decided." Similarly, this court respects the need to preserve the issue for further
appeal, while remaining bound to apply Patterson.
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No. 1-14-3025
recent decisions concerning minors by the United States Supreme Court; and
(2) that the automatic transfer provision of Illinois' Juvenile Court Act of 1987
(705 ILCS 405/5-130 (West 2002)) violates due process, the proportionate
penalties clause of the Illinois constitution (Ill. Const. 1970, art. I, § 11), and the
eighth amendment (U.S. Const., amend. VIII).
¶ 67 For the foregoing reasons, we do not find persuasive defendant's
arguments that he established the prejudice needed to file a successive petition.
As a result, we affirm the trial court's denial of leave.
¶ 68 Affirmed.
27