People v. Turner , 2022 IL App (2d) 210753 ( 2022 )

2022 IL App (2d) 210753No. 2-21-0753
Opinion filed November 2, 2022
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 94-CF-1051
)
ANTRONE JEROME TURNER, ) Honorable
) Joseph G. McGraw,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Justices McLaren and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Defendant, Antrone Jerome Turner, appeals from an order granting the State’s motion to
dismiss his amended successive petition under the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2018)) for relief from his sentence for first-degree murder (720 ILCS 5/9-
1(a)(3) (West 1994)). Defendant argues that he did not receive reasonable assistance from
postconviction counsel regarding the petition. Specifically, defendant contends that postconviction
counsel performed deficiently by omitting from the amended petition a claim that defendant’s
sentence violated our state constitution’s proportionate-penalties clause (Ill. Const. 1970, art. I,
§ 11). We affirm.
¶2 I. BACKGROUND
2022 IL App (2d) 210753¶3 Following a jury trial in the circuit court of Winnebago County, defendant was found guilty
of first-degree murder. Defendant committed the offense on May 7, 1994, when he was 17 years
old. The trial court sentenced defendant to a 60-year prison term. On direct appeal, we affirmed
defendant’s conviction. People v. Turner, No. 2-95-1575 (1997) (unpublished order under Illinois
Supreme Court Rule 23). On April 12, 1999, defendant filed, pro se, his first postconviction
petition, which the trial court summarily dismissed (see 725 ILCS 5/122-2.1(a)(2) (West 1998)).
Defendant appealed, and the trial court appointed the Office of the State Appellate Defender to
represent him. Counsel later moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551(1987). We granted the motion and affirmed the summary dismissal of defendant’s petition. People
v. Turner, No. 2-99-0720 (2000) (unpublished summary order under Illinois Supreme Court Rule
23(c)).
¶4 On July 10, 2019, defendant filed, pro se, a successive postconviction petition. He claimed
that his 60-year sentence was a de facto life sentence, which, given his age at the time of the
offense, violated the eighth amendment to the United States Constitution (U.S. Const., amend.
VIII) and our state constitution’s proportionate-penalties clause. Without first granting defendant
leave to file the successive petition (see 725 ILCS 122-1(f) (West 2018)), the trial court docketed
the petition for further proceedings (see id. § 122-2.1(b)) and appointed counsel to represent
defendant (see id. § 122-4). On November 12, 2020, counsel filed an amended petition claiming
that defendant’s sentence was a de facto life sentence that violated the eighth amendment.
However, counsel did not mention the proportionate-penalties clause. Counsel also filed a
certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). The State
successfully moved to dismiss the amended petition, and this appeal followed.
¶5 II. ANALYSIS
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2022 IL App (2d) 210753¶6 At the outset, we summarize the relevant principles governing proceedings under the Act.
Our supreme court has stated as follows:
“The Act [citation] provides a remedy for incarcerated defendants who have
suffered a substantial violation of their constitutional rights at trial. Under the Act, a
postconviction proceeding contains three stages. At the first stage, the circuit court must
independently review the postconviction petition, without input from the State, and
determine whether it is ‘frivolous or is patently without merit.’ [Citation.] If the court
makes this determination, the court must dismiss the petition in a written order. [Citation.]
If the petition is not dismissed, the proceedings move to the second stage. [Citation.]
At the second stage, counsel is appointed to represent the defendant, if he is indigent
[citation], and the State is permitted to file responsive pleadings [citation]. The circuit
court must determine at this stage whether the petition and any accompanying
documentation make a substantial showing of a constitutional violation. [Citation.] If no
such showing is made, the petition is dismissed. If, however, the petition sets forth a
substantial showing of a constitutional violation, it is advanced to the third stage, where
the circuit court conducts an evidentiary hearing [citation].” People v. Johnson, 2018 IL
122227, ¶¶ 14-15.
¶7 Defendant does not dispute that the amended postconviction petition failed to make a
substantial showing of a constitutional violation. Rather, he blames that failure on postconviction
counsel’s deficient performance and asks that we provide relief by reversing the dismissal and
remanding for further, second-stage proceedings.
¶8 The right to counsel in postconviction proceedings is statutory, not constitutional. People
v. Suarez, 224 Ill. 2d 37, 42 (2007). The Act entitles a defendant to reasonable assistance from
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2022 IL App (2d) 210753counsel in a postconviction proceeding. Id. The Act “contemplates that the attorney appointed to
represent an indigent petitioner will ascertain the basis of the petitioner’s complaints, shape those
complaints into appropriate legal form and present the prisoner’s constitutional contentions to the
court.” People v. Johnson, 154 Ill. 2d 227, 237-38 (1993). To that end, Rule 651(c) imposes
specific duties on counsel in postconviction proceedings. Rule 651(c) provides, in pertinent part:
“The record filed in [the appellate court] shall contain a showing, which may be
made by the certificate of petitioner’s attorney, that the attorney has consulted with
petitioner by phone, mail, electronic means or in person to ascertain his or her contentions
of deprivation of constitutional rights, has examined the record of the proceedings at the
trial, and has made any amendments to the petitions filed pro se that are necessary for an
adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
When counsel files a proper Rule 651(c) certificate, a rebuttable presumption arises that counsel
provided reasonable assistance. People v. Landa, 2020 IL App (1st) 170851, ¶ 46. Defendant
argues that postconviction counsel’s failure to properly amend his pro se petition rebuts the
presumption of reasonableness.
¶9 Before addressing that argument, we note that the State contends that, regardless of the
quality of postconviction counsel’s performance, we may affirm the dismissal of the petition
entirely because it was barred by the general prohibition against successive postconviction
petitions. Section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2020)) provides:
“Only one petition may be filed by a petitioner under this Article without leave of the court.
Leave of court may be granted only if a petitioner demonstrates cause for his or her failure
to bring the claim in his or her initial post-conviction proceedings and prejudice results
from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by
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2022 IL App (2d) 210753identifying an objective factor that impeded his or her ability to raise a specific claim during
his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by
demonstrating that the claim not raised during his or her initial post-conviction proceedings
so infected the trial that the resulting conviction or sentence violated due process.”
To obtain leave to file a successive petition, a defendant need only make “a prima facie showing
of cause and prejudice.” People v. Bailey, 2017 IL 121450, ¶ 24.
“[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.” People v. Smith, 2014 IL 115946, ¶ 35.
¶ 10 The State maintains that defendant failed to establish cause and prejudice. However, we
need not address that issue, because—as explained below—we conclude that defendant received
from postconviction counsel the reasonable assistance required by statute. Therefore, defendant
has demonstrated no grounds for reversing the dismissal of his petition.
¶ 11 Turning to the merits, defendant argues that postconviction counsel performed deficiently
by abandoning a viable claim in the pro se petition that defendant’s sentence violated our state
constitution’s proportionate-penalties clause. We note that, “where *** the presumption of
reasonable assistance is present, ‘the question of whether the pro se allegations had merit is crucial
to determining whether counsel acted unreasonably by not filing an amended petition.’ ” People
v. Gallano, 2019 IL App (1st) 160570, ¶ 30 (quoting People v. Profit, 2012 IL App (1st) 101307,
¶ 23). It follows that, where counsel does file an amended petition, the reasonableness of counsel’s
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2022 IL App (2d) 210753choice to omit a particular pro se claim from the amended petition likewise depends on the merits
of that claim.
¶ 12 As we have recently observed:
“The proportionate-penalties clause states that a court must determine all penalties
based on the ‘seriousness of the offense and with the objective of restoring the offender to
useful citizenship.’ [Citation.] To succeed on a proportionate-penalties claim, the
defendant must show that his sentence ‘is so disproportionate to the offense as to violate
the constitution.’ [Citation.] Stated differently, ‘[t]he proportionate penalties clause is
implicated when a defendant’s sentence is cruel, degrading, or so wholly disproportionate
to the offense so as to shock the moral conscience of the community.’ [Citation.]” People
v. Garcia, 2022 IL App (2d) 210488, ¶ 14.
“[T]he proportionate penalties clause goes further than the eighth amendment in offering
protection against oppressive penalties.” People v. Savage, 2020 IL App (1st) 173135, ¶ 65.
¶ 13 Defendant’s proportionate-penalties-clause theory is rooted in a series of cases beginning
with the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), which
held that the eighth amendment limits the imposition of life sentences without parole for offenses
committed by those under the age of 18. The Miller Court reasoned:
“Mandatory life without parole for a juvenile precludes consideration of his chronological
age and its hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences. It prevents taking into account the family and home
environment that surrounds him—and from which he cannot usually extricate himself—no
matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense,
including the extent of his participation in the conduct and the way familial and peer
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2022 IL App (2d) 210753pressures may have affected him. Indeed, it ignores that he might have been charged and
convicted of a lesser offense if not for incompetencies associated with youth—for example,
his inability to deal with police officers or prosecutors (including on a plea agreement) or
his incapacity to assist his own attorneys. [Citations.] And finally, this mandatory
punishment disregards the possibility of rehabilitation even when the circumstances most
suggest it.” Id. at 477-78.
The General Assembly incorporated these “Miller factors” into section 5-4.5-105(a) of the Unified
Code of Corrections (Code) (730 ILCS 5/5-4.5-105(a) (West 2016)), which became effective on
January 1, 2016. Section 5-4.5-105(a) of the Code provides that the trial court must consider these
factors in mitigation when sentencing a defendant for an offense committed after the section’s
effective date and while the defendant was under 18. Id.
¶ 14 In People v. Buffer, 2019 IL 122327, ¶ 27, the supreme court held that Miller applies to
any life sentence for a juvenile, whether “mandatory or discretionary, natural or de facto.” The
Buffer court determined that a sentence of more than 40 years is a de facto life sentence. Id. ¶ 40.
In People v. Dorsey, 2021 IL 123010, ¶ 64, the court held that, when the statutory good-conduct
scheme affords a defendant a meaningful opportunity for release in 40 years or less, the sentence
is not a de facto life sentence for purposes of Miller. Because defendant here was sentenced in
1995, before the truth-in-sentencing statute was enacted, he is eligible for day-to-day credit against
his sentence. Since he has a meaningful opportunity for release in 40 years or less, his sentence is
not a de facto life sentence.
¶ 15 Nonetheless, defendant suggests that the Miller factors apply to him through the
proportionate-penalties clause. In support of his argument that postconviction counsel should have
asserted a Miller-based proportionate-penalties claim in the amended petition, defendant cites
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2022 IL App (2d) 210753People v. Harris, 2018 IL 121932. In Harris, the trial court sentenced the defendant to a mandatory
aggregate 76-year prison term for a murder he committed when he was a few months over 18. On
appeal, he argued that his prison sentence was a de facto life sentence that violated the
proportionate-penalties clause. He asserted that, although he was an adult when he committed the
offense, Miller nonetheless governed his proportionate-penalties claim because his specific
circumstances showed that his mentality was more like a juvenile’s than an adult’s. Id. ¶¶ 37, 42.
The Harris court rejected the argument because the record was not sufficiently developed as to the
defendant’s specific circumstances. Id. ¶¶ 41, 46. However, the court held open the possibility that
the defendant could raise his claim in a postconviction proceeding. Id. ¶ 48.
¶ 16 Defendant observes that, “[s]ince Harris was decided, numerous appellate court opinions
have held that emerging adults *** may challenge their mandatory or de facto life sentences under
the proportionate penalties clause if they can demonstrate that the relevant characteristics of youth
were not adequately considered during their initial sentencing.” (Emphasis in original.) However,
cases holding that “emerging adults *** may challenge their mandatory or de facto life sentences
under the proportionate penalties clause” are inapposite here because defendant did not receive a
natural or de facto life sentence. (Emphasis in original.)
¶ 17 Defendant also cites People v. Gunn, 2020 IL App (1st) 170542, and People v. Parker,
2019 IL App (5th) 150192. Neither case helps defendant.
¶ 18 In Gunn, the trial court sentenced the defendant to 40 years’ imprisonment for first-degree
murder committed when he was 17. Gunn, 2020 IL App (1st) 170542, ¶ 1. The defendant argued
for the first time on appeal that his 40-year sentence shocked the moral sense of the community
(1) “in light of recent changes in juvenile sentencing enacted by our state legislature” (id. ¶ 147)
and (2) because the court did not take proper account of his rehabilitative potential (id. ¶ 144). The
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2022 IL App (2d) 210753appellate court found that these arguments were forfeited and that the defendant did not establish
error for purposes of the plain-error rule. Id. ¶¶ 145-48.
¶ 19 Gunn provides no support for applying a Miller-based proportionate-penalties analysis to
a juvenile’s sentence that is not a natural or de facto life sentence. First, as defendant recognizes,
Gunn found that the record did not support the defendant’s contention that his sentence was
inconsistent with “recent [statutory] changes in juvenile sentencing.” Id. ¶ 147. Gunn noted that
the trial court “stated at defendant’s sentencing that it was aware of recent changes in both the case
law and statutory law concerning juvenile sentencing.” Id. Moreover, the trial judge “[e]xercis[ed]
the discretion given to him by these new laws” and “chose not to impose [a] firearm enhancement.”
Id. Thus, Gunn’s point was simply that, contrary to the defendant’s factual assertion, the trial court
recognized and applied those changes in the law.
¶ 20 Further, the Gunn court was not presented with, and did not volunteer an opinion on, the
legal question of whether those changes governed the defendant’s sentencing. Moreover, the
statutory changes referenced by Gunn did not include section 5-4.5-105(a) of the Code; in a
separate portion of its analysis, the court dealt with the defendant’s argument that the trial court
erred in not applying that section. See id. ¶¶ 150-54. (Gunn concluded that section 5-4.5-105(a) of
the Code did not apply, because the defendant committed the offense after the effective date. Id.
¶ 154.)
¶ 21 As for the defendant’s argument that his sentence did not reflect his rehabilitative potential,
Gunn rejected it as a “garden-variety” claim of sentencing error (People v. LaPointe, 2018 IL App
(2d) 160903, ¶ 62) and did not suggest that it was applying Miller. As for defendant’s argument
that his sentence did not reflect his rehabilitative potential, Gunn construed and rejected this
argument as a “garden-variety” claim of sentencing error (People v. LaPointe, 2018 IL App (2d)
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2022 IL App (2d) 210753160903, ¶ 62)—not as a constitutional argument, much less a Miller-based argument, For these
reasons, Gunn provides no support for a Miller-based proportionate-penalties challenge to
defendant’s sentence here.
¶ 22 In Parker, the defendant, who was 16 years old when arrested for murder, was permitted
to challenge his guilty plea on the grounds that the negotiated sentencing cap was an
unconstitutional de facto life sentence and he entered his plea to avoid a mandatory life sentence.
Parker, 2019 IL App (5th) 150192, ¶¶ 16-18. Here, we fail to see how this case has any bearing
on whether defendant’s sentence, which was not a de facto life sentence, violated the
proportionate-penalties clause.
¶ 23 Notably absent from defendant’s opening brief is any clear explanation of how his
sentence, which was not a de facto life sentence, ran afoul of the proportionate-penalties clause.
Instead, defendant suggests for the first time in his reply brief “that the sentencing court did not
consider [defendant’s] youth and its attendant circumstances (‘the Miller factors’) in sentencing
[defendant], and as such, the sentence was unconstitutional.” (Emphasis in original.)
¶ 24 Apparently, defendant relies on People v. Meneses, 2022 IL App (1st) 191247-B, in support
of this theory. In Meneses, the defendant was convicted of first-degree murder and attempted
murder. He was 16 years old when he committed the offenses. Like defendant here, the defendant
in Meneses was sentenced to a 60-year prison term with eligibility for day-for-day sentencing
credit; thus, his sentence was not a de facto life sentence. Id. ¶¶ 1-5. The defendant appealed from
the denial of leave to file his successive postconviction petition alleging that the sentence violated
the proportionate-penalties clause. The State did not dispute that the defendant satisfied the
“cause” prong for leave to file. Id. ¶ 4. However, the State contended that the defendant had not
established prejudice. Id. The Meneses court disagreed. The court reasoned that, even though the
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2022 IL App (2d) 210753defendant had not received a natural or de facto life sentence, the trial court erred by improperly
considering the need for deterrence in imposing the 60-year sentence. Specifically, the trial court
stated, “ ‘[T]he sentence that I impose must be one to deter not only this individual but others from
committing this same type of useless crimes, the useless shootings that took place in this particular
case.’ (Emphasis added.)” Id. ¶ 11. The Meneses court observed that, in Miller, the Supreme Court
discounted deterrence as a rationale for imposing lengthy sentences on juvenile offenders. Id. ¶ 20.
Juveniles are not susceptible to deterrence “since their recklessness and impetuosity make them
unlikely to consider future consequences.” Id.
¶ 25 Thus, in Meneses, the appellate court held that the trial court should have granted the
defendant leave to file his petition, because he made a “colorable claim” that the trial court violated
the proportionate-penalties clause by stressing deterrence as a sentencing factor. Id. ¶ 22.
Defendant’s reliance on Meneses is misplaced for two reasons. First, Meneses merely held that the
defendant made a sufficient showing to proceed to the second stage of the postconviction
proceeding. Here, the petition reached that stage. To proceed further, it was necessary not merely
to assert a “colorable claim” (i.e., a prima facie showing of cause and prejudice) but to make a
substantial showing of a constitutional violation. Second, and more importantly, Meneses provides
no support for the central thesis of defendant’s claim—when sentencing an offender for a crime
committed while under 18 years of age, the proportionate-penalties clause requires consideration
of the Miller factors even when the offender does not receive a natural or de facto life sentence.
The Meneses court’s reliance on Miller’s remarks about deterrence did not indicate full-blown
endorsement of applying the Miller factors to any juvenile sentence when evaluating it under the
proportionate-penalties clause.
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2022 IL App (2d) 210753¶ 26 Because defendant cites no pertinent authority that the proportionate-penalties clause
requires consideration of the Miller factors for the sentence he received, and he does not argue that
existing case law should be extended to create such a requirement, he has forfeited the issue. Ill.
S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); R. 612(b)(9) (eff. July 1, 2017). Furthermore, for all of the
reasons previously stated, defendant has not identified any meritorious basis for a Miller-based
proportionate-penalties claim. As such, he has failed to establish that postconviction counsel’s
failure to raise such a claim in the amended petition was unreasonable.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
¶ 29 Affirmed.
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2022 IL App (2d) 2107532022 IL App (2d) 210753
Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 94-CF-
1051; the Hon. Joseph G. McGraw, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Jaime Montgomery, of
for State Appellate Defender’s Office, of Elgin, for the appellant.
Appellant:
Attorneys J. Hanley, State’s Attorney, of Rockford (Patrick Delfino,
for Edward R. Psenicka, and John G. Barrett, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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