People v. Ruiz ( 2021 )

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Appellate Court Date: 2021.03.22
15:43:10 -05'00'
People v. Ruiz, 2020 IL App (1st) 163145Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ISRAEL RUIZ, Defendant-Appellant.
District & No. First District, First Division
No. 1-16-3145
Filed May 26, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 98-CR-31306; the
Review Hon. Thomas Joseph Hennelly, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Cause remanded.
Counsel on James E. Chadd, Patricia Mysza, and Arianne Stein, of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Clare Wesolik Connolly, and Hareena Meghani-Wakely, Assistant
State’s Attorneys, of counsel), for the People.
Panel JUSTICE HYMAN delivered the judgment of the court, with
opinion.
Justice Walker concurred in the judgment and opinion.
Justice Pierce dissented, with opinion.
OPINION
¶1 Israel Ruiz and Omar Johnson, whose separate appeal we also decide today (see People v.
Johnson, 2020 IL App (1st) 171362), were convicted of violent murders they committed at the
ages of 18 and 19, respectively. Both availed themselves of their constitutional right to a direct
appeal and their statutory right to postconviction proceedings. Both come before us from the
denial of leave to file a successive postconviction petition. Both petitions claim that a long line
of cases expanding constitutional protections in juvenile sentencing proceedings—commonly
referred to by the flagship case, Miller v. Alabama, 567 U.S. 460 (2012)—apply to them as
young adults. Their petitions, and their counsel on appeal, urge that we account for the
emerging consensus that the development of the brain continues well beyond 18 years, the
arbitrarily demarcated admittance to adulthood for individuals arrested and entering our
criminal law system. We hold, in both cases, that Ruiz and Johnson have made prima facie
showings in their pleadings that evolving understandings of the brain psychology of young
adults require that Miller apply to them.
¶2 Here, we reverse the trial court’s denial of Ruiz’s request for leave to file his successive
petition and remand for further postconviction proceedings so he can develop his claim. We
do the same in Johnson, 2020 IL App (1st) 171362.
¶3 At the outset, we make two critical points. Neither decision should be read to minimize or
excuse the suffering wrought by the taking of another life. Indeed, Miller engages
constitutional protections to young people who commit the most heinous type of offenses.
There, the defendants committed similarly violent murders. One defendant participated in the
attempted robbery of a video store, during which the clerk was shot point blank with a sawed-
off shotgun. The other defendant robbed a neighbor of $300 and repeatedly hit the victim with
a baseball bat saying, “I am God, I’ve come to take your life,” before setting fire to the victim’s
trailer with the victim alive inside. (Internal quotation marks omitted.) Miller, 567 U.S. at 465-
68.
¶4 Our decisions also should not be overread in terms of the relief we provide to Ruiz and
Johnson. Both petitions were dismissed at an early stage in the successive postconviction
process. We order the petitions proceed so they can attempt to show that Miller applies to them,
as they have sufficiently pled in their petitions. If, and only if, they succeed, the trial court will
consider a new sentencing hearing.
¶5 With those understandings, we proceed to our analysis.
¶6 BACKGROUND
¶7 People v. Ruiz, 2014 IL App (1st) 112993-U, ¶¶ 4-13, the appeal from the second-stage
dismissal of Ruiz’s initial postconviction petition, sets out the trial court proceedings in
substantial detail. We reiterate facts that give context to Ruiz’s claims of actual innocence and
ineffective assistance of counsel.
¶8 On November 7, 1998, Roy Billups was helping his friend, Brian Ellison, move into
Ellison’s new apartment. At about 8:30 p.m., as they assembled beds in a second-story room,
Billups looked out the window on 90th Street. He saw two Hispanic men walking, one of them
bald except for a ponytail “hanging in the back.” The two men stood on the corner; Billups
kept his attention there because the man with the ponytail had his hand by his waist “toward
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the belt buckle at the front of his pants.” Billups identified this man as Ruiz and the man next
to him as codefendant, Michael Mejia.
¶9 Billups watched as Ruiz and Mejia walked 30 to 40 feet west on 90th Street, coming to a
stop in front of a garage on the south side of the street. Billups saw Ruiz, who was facing north,
“pull[ ] out a gun and start[ ] shooting.” Ruiz shot “8 or 9” times. Ruiz and Mejia turned and
ran south down the alley. Later that night, Billups went to the police station and identified Ruiz
and Mejia as the men involved in the shooting. Ellison gave substantially similar testimony,
including identifying Ruiz as the shooter, both at the police station shortly after the offense
and in court.
¶ 10 Jose Ortiz lived nearby. While watching a movie at about 8:30 p.m., he “heard several shots
that sounded like they came from the rear of the house,” leading him to look out the kitchen
window. That window overlooked the alley behind his house. Ortiz saw a sports utility vehicle
(SUV) reversing north in the alley and heard a second series of shots. Then, he saw two people
walking south down the alley and noticed “something similar to a gun, a shiny, chrome gun
that somebody was walking with on the side of their body.” The person carrying the gun “had
sort of a bald head.”
¶ 11 After watching the SUV drive away, Ortiz went to join a crowd gathering on 90th Street.
There, he saw a man (Nathaniel Walls) on the ground with a child in his arms. Ortiz found a
police officer and reported what he saw. Sometime later, he went to the police station and
viewed a lineup. He identified Ruiz as a person who “resembled the person that [Ortiz] saw in
the alley.” On cross-examination, Ortiz admitted to uncertainty regarding whether the person
he saw was carrying a gun, and that he “didn’t get a full picture of their face[s].” He identified
Ruiz based on his “shirt, bald head, and his stature.”
¶ 12 The State also presented witnesses from inside the SUV. See id. ¶¶ 6-7. These witnesses
testified that after hearing gunshots, they saw Ruiz and Mejia run through the alley to the
waiting SUV. Araceli Garcia testified that Mejia said G.D.s (member of the Gangster
Disciples) shot at them. Vanessa Rios testified, through the transcripts from her grand jury
testimony, that Ruiz threw a gun out the window after they drove off.
¶ 13 Officers on patrol saw the SUV move slowly in the alley, toward 91st Street, with its lights
off. A woman inside the SUV leaned out of the window and said, “them black G.D.’s over
there were just shooting at us.” The officers pulled over the SUV. As they walked up, someone
threw a gun out, and the SUV drove a bit further before a final stop. After hearing a radio
transmission describing the shooting suspects, officers took Ruiz to the scene where he was
identified. Later, at the police station, three witnesses, including Billups and Jose Ortiz,
identified Ruiz in a lineup as the shooter.
¶ 14 Ruiz also gave a statement to Assistant State’s Attorney Paul Quinn. Ruiz admitted to
belonging to the Latin Counts street gang. Ruiz stated that his friend, Christopher Anderson,
“had been shot on Halloween Night in the face by rival gang members.” On November 7, 1998,
after driving around in the SUV for a while, he and Mejia went for a walk. As they came toward
Commercial Avenue, “the dividing line between the territory of the Latin Counts and Gangster
Disciples,” Ruiz saw three black teenagers across the street “dressed all in black.” Ruiz did not
see a gun, but they “started whistling and running around and *** one of them started going
down a gangway.” Mejia gave Ruiz “a 45 handgun.” Ruiz “raised it with his right hand and
pointed it at the teenagers across the street and fired several shots at them.” Then he ran.
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¶ 15 Forensic technicians matched the gun officers had seen thrown from the SUV to the gun
that shot Nathaniel Walls. Although some of the fingerprints on the gun were suitable for
comparison, none matched Ruiz’s. The State presented no other physical evidence linking Ruiz
to the shooting.
¶ 16 A jury found Ruiz guilty of first degree murder of Walls and aggravated discharge of a
firearm as to Walls’s child.
¶ 17 At sentencing, two officers testified about offenses for which Ruiz had been arrested. The
State argued that Ruiz shot Walls as an “act of retaliation.” And that, despite his upbringing,
Ruiz “chose to take a path that would lead to bloodshed and violence.” The State argued that
Ruiz had not taken advantage of the juvenile system that tried to rehabilitate him. In response,
Ruiz’s counsel argued that he had a supportive family and goals to complete his education.
Counsel urged the court “not to put him away for the rest of his life and not let him die in
prison.”
¶ 18 The trial court mentioned Ruiz’s age and discussed the evidence and the potential for
rehabilitation. The court noted Ruiz’s “loyal and supportive family.” The court said Ruiz had
“two personas, one for his family and the other when he was away from his family.” It
considered “all of his background” and whether he posed a threat to society. Ultimately, the
trial court sentenced Ruiz to 40 years for Walls’s murder and a concurrent 15 years for the
aggravated discharge of a firearm.
¶ 19 In 2010, after we ordered second stage postconviction proceedings, Ruiz filed the final
version of his first postconviction petition, raising 22 claims. The trial court dismissed the
petition at the second stage. Ruiz pressed three of those claims on appeal—that his direct appeal
counsel was ineffective (i) for failing to challenge the trial court’s denial of a second degree
murder instruction, (ii) for failing to challenge the use of an “outdated” pattern jury instruction,
and (iii) for failing to litigate a motion to suppress statements. Id. ¶¶ 17, 22, 26. We affirmed
the second-stage dismissal. Id. ¶ 28.
¶ 20 In 2016, Ruiz filed a motion for leave to file a successive postconviction petition. He raised
four claims, three relevant here: (i) his 40-year sentence constituted a de facto life sentence in
violation of the Illinois Constitution and the eighth amendment to the United States
Constitution, (ii) his trial counsel was ineffective for failing to investigate and call Christopher
Anderson as a witness at trial, and (iii) Ruiz was actually innocent, based on an affidavit from
Anderson explaining that Ruiz had knowledge of a shooting perpetrated by rival gang members
the a week before Walls’s murder.
¶ 21 In support of his ineffectiveness and actual innocence claims, Ruiz attached an affidavit
from Anderson. According to Anderson, on October 31, 1998, four members of the Gangster
Disciples shot him in the face. On November 2, Ruiz visited Anderson in the hospital.
Anderson told him that the “four black males” who had shot him made Gangster Disciple hand
signs and shouted “GD m***.” On the day of the Walls shooting, Anderson had warned Ruiz
to “watch out for them GDs.” Anderson explained that he would not have testified at Ruiz’s
trial because he “didn’t want any more trouble from anyone including the GDs.”
¶ 22 Ruiz also attached an affidavit explaining that he told his trial counsel to investigate and
subpoena Anderson as a witness “three different times.” According to Ruiz, his counsel refused
because he would not “go into [Ruiz’s] bad neighborhood and risk getting shot just to summon
[witnesses].” Ruiz’s counsel allegedly told Ruiz that if he wanted witnesses at trial, Ruiz would
have to get them himself.
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¶ 23 Ruiz supported his sentencing claim by citing both Illinois Supreme Court and United
States Supreme Court decisions about constitutional protections available to juveniles during
their sentencing proceedings. Ruiz’s petition referenced social science articles in arguing that
brain development does not conclude when a person reaches 18 years, so the case law
applicable to juveniles should also apply to him. And Ruiz argued that his sentence constituted
a de facto life sentence imposed by the trial court without considering his age.
¶ 24 In a one-sentence oral ruling, the trial court denied Ruiz leave to file his successive petition,
saying, “In the matter of Israel Ruiz, request to proceed in forma pauperis is denied. Off call.”
¶ 25 ANALYSIS
¶ 26 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) allows a
petitioner to raise a claim of a violation of constitutional rights in the original trial or sentencing
proceedings. People v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002). The Act contemplates the
filing of only one postconviction petition. Id. at 455-56. Claims not raised in the initial petition
are waived (id. at 456; see also 725 ILCS 5/122-3 (West 2018)) unless the defendant (i) shows
cause for and prejudice from failing to raise the claim in the earlier petition or (ii) makes a
colorable claim of actual innocence. Pitsonbarger, 205 Ill. 2d at 459-60. We review the trial
court’s decision to deny leave to file a successive petition de novo, accepting all well-pled facts
and attached affidavits as true. People v. Edwards, 2012 IL App (1st) 091651, ¶ 25.
¶ 27 Applicability of Miller to Ruiz
¶ 28 Ruiz challenges his 40-year discretionary sentence as unconstitutional under both the
United States and Illinois Constitutions because the trial court failed to consider his young age
(18 years old) when sentencing him. Ruiz must “demonstrate [ ] cause for his *** failure to
bring the claim in his *** initial post-conviction proceedings and [that] prejudice results from
that failure.” 725 ILCS 5/122-1(f) (West 2018). The Act defines “cause” as “an objective factor
that impeded [the petitioner’s] ability to raise a specific claim during his or her initial post-
conviction proceedings.” Id. “Prejudice” involves the “demonstrati[on] that the claim not
raised during [the petitioner’s] initial post-conviction proceedings so infected the trial that the
resulting conviction or sentence violated due process.” Id. The cause-and-prejudice test
establishes a more onerous standard than that at the first-stage pleading stage. People v. Smith,
2014 IL 115946, ¶ 35. Leave to file a successive petition should be denied where (i) the
petitioner’s claims “fail as a matter of law” or (ii) the petition and accompanying documents
are “insufficient to justify further proceedings.” Id.¶ 29 The State does not concede cause, but ignores it in its brief. See Ill. S. Ct. R. 341(h)(7) (eff.
May 25, 2018) (“[p]oints not argued are forfeited”). What’s more, our supreme court has
already said that “Miller’s new substantive rule constitutes ‘cause’ because it was not available
earlier to counsel.” People v. Davis, 2014 IL 115595, ¶ 42 (citing Pitsonbarger, 205 Ill. 2d at
460-61). Ruiz’s sentencing occurred years before the United States Supreme Court decided
Miller, and even longer before our supreme court suggested that young adults could attempt to
show Miller’s application to them in postconviction proceedings. See People v. Harris, 2018
IL 121932, ¶ 48. Ruiz has shown cause for failing to raise this claim in the earlier proceeding.
¶ 30 Instead, the State argues that Ruiz cannot establish prejudice because (i) the constitutional
protections afforded to juveniles in sentencing proceedings should not extend to young adults,
(ii) even if those protections apply to young adults, they do not apply to Ruiz because his
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de facto life sentence was not mandatory, and (iii) even if constitutional and juvenile
sentencing protections apply to young adults given discretionary life sentences, Ruiz has failed
to show eligibility for those protections or that the trial court failed to consider his youth at the
original sentencing hearing. We disagree with each of these contentions.
¶ 31 We first dispose of Ruiz’s eighth amendment argument. In a series of cases, the United
States Supreme Court found that the eighth amendment prohibits capital punishment and
mandatory life sentences for juvenile offenders. People v. Buffer, 2019 IL 122327, ¶ 16 (citing
Roper v. Simmons, 543 U.S. 551, 578-79 (2005) (prohibiting capital punishment for juveniles);
Graham v. Florida, 560 U.S. 48, 82 (2010) (prohibiting mandatory life sentences for juveniles
convicted of nonhomicide offenses); Miller, 567 U.S. at 489 (prohibiting mandatory life
sentences for juveniles convicted of murder)). Our supreme court has read the eighth
amendment protections afforded to juvenile sentencing as extending to discretionary life
sentences. People v. Holman, 2017 IL 120655, ¶ 40. For eighth amendment purposes, our court
has “draw[n] a line at 40 years” to demarcate a life sentence for a juvenile offender. Buffer,
2019 IL 122327, ¶ 40.
¶ 32 Ruiz’s 40-year sentence qualifies him for the protections that Miller affords a juvenile. But
Ruiz committed the offense at age 18. Recently, and forcefully, our supreme court reaffirmed
under 18 as the age cutoff for juvenile sentencing protections in the eighth amendment context.
See Harris, 2018 IL 121932, ¶¶ 54-61. Ruiz cites no Illinois cases casting doubt on Harris, but
rather relies heavily on secondary sources explaining the brain development of young adults.
Harris rejected that argument. Id. ¶¶ 59-60. We must follow Harris’s interpretation of the
eighth amendment.
¶ 33 While Harris foreclosed Ruiz’s eighth amendment argument, it pointedly left open the
applicability of the Illinois Constitution. See id. ¶ 48 (inviting defendant to raise his Illinois
constitutional challenge to his life sentence in collateral proceeding, either in a postconviction
petition or a petition for relief from judgment). Ruiz argues that he has adequately alleged
prejudice under the Illinois Constitution’s proportionate penalties clause to warrant the filing
of his successive petition. We agree.
¶ 34 We have held that the Illinois Constitution prohibits a mandatory life sentence for a young
adult offender who was 19 at the time of the offense. People v. House, 2019 IL App (1st)
110580-B, ¶¶ 63-65. We ordered a new sentencing hearing, during which “both defendant and
the State will have the opportunity to fully explore defendant’s argument and the evolving
science on juvenile brain development.” Id. ¶ 72. We decline the State’s invitation to depart
from House.
¶ 35 The State urges us to reject House because, in its view, the decision “contravened clear
directives set forth in People v. Harris, 2018 IL 121932.” We disagree.
¶ 36 Our supreme court turned down the defendant’s Illinois constitutional claim in Harris
because the claim had not been preserved. Harris, 2018 IL 121932, ¶ 40 (“an evidentiary
hearing was not held on [the defendant’s] constitutional claim, and the trial court did not make
any findings of fact on defendant’s specific circumstances”). House did no more than take up
our supreme court’s invitation in Harris on a fully developed record. See House, 2019 IL App
(1st) 110580-B, ¶ 65.
¶ 37 Recently, another division of this court distinguished House, but did not disagree with it.
People v. Handy, 2019 IL App (1st) 170213. Because the court decided Handy after the State
filed its brief, we granted the State’s motion to cite Handy as additional authority. The State
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urges us to follow Handy, which distinguished House on two grounds: (i) the defendant in
Handy participated in the offense instead of merely acting as a lookout and (ii) the sentence in
Handy was discretionary, while in House, it was mandatory. Id. ¶¶ 40-41. We disagree with
both distinctions.
¶ 38 We see no principled basis on which to distinguish House based on the level of a
defendant’s participation in the offense. Remember, one of the most fundamental aspects of
the Supreme Court’s Miller line of cases insists that juvenile sentencing considerations apply
even to those who commit heinous crimes—extending constitutional protections to juveniles
who commit murder. Miller, 567 U.S. at 472 (“Roper and Graham emphasized that the
distinctive attributes of youth diminish the penological justifications for imposing the harshest
sentences on juvenile offenders, even when they commit terrible crimes.” (Emphasis added.)).
When the Court looked at the four pillars of penological justification—retribution, deterrence,
incapacitation, and rehabilitation—it focused on how each related to characteristics of the
offender, not the offense. Id. at 472-73. Retribution relates to the offender’s blameworthiness,
by definition lower for juveniles. Id. at 472. Deterrence has lower effectiveness due to their
“immaturity, recklessness, and impetuosity.” Id. Incapacitation is less salient because it
requires a judgment of incorrigibility, which is “inconsistent with youth.” (Internal quotation
marks omitted.) Id. at 472-73. And a life sentence eliminates rehabilitation altogether. Id. at
473.
¶ 39 But our ruling hinges on whether the trial court adequately considered the constitutionally
relevant factor of Ruiz’s youth and attendant characteristics, and not on whether Ruiz’s
sentence is substantively constitutional (i.e., proportionate). Admittedly, the degree Ruiz
participated in the offense remains a consideration during his sentencing proceeding. E.g.,
People v. Contursi, 2019 IL App (1st) 162894, ¶ 24 (“The most important sentencing factor is
the seriousness of the offense, and the court need not give greater weight to rehabilitation or
mitigating factors than to the severity of the offense.”). To prevent young adult offenders from
relying on the mitigating circumstance of their youth simply because they more directly
participated in the offense would be error. See Miller, 567 U.S. at 472.
¶ 40 We also see no support for distinguishing House on the ground that Ruiz’s sentence was
discretionary. Our supreme court eliminated the distinction between mandatory and
discretionary life sentences when juveniles raise constitutional challenges. See Buffer, 2019 IL
122327, ¶ 27 (to succeed on Miller claim, juvenile must show, in part, that he or she “was
subject to a life sentence, mandatory or discretionary” (citing Holman, 2017 IL 120655, ¶ 40)).
Because we agree with House that juvenile sentencing provisions apply to Ruiz as a legal
matter, the distinction between mandatory and discretionary sentences evaporates.
¶ 41 Finally, the State argues that even if Buffer applies to certain young adults, the 40-year
floor it set cannot be the right number for an adult offender. On the surface, this argument has
some force: there are some mandatory minimum sentences for murder that can be as much as
45 years with enhancements. See 730 ILCS 5/5-4.5-20(a) (West 2018) (20-years mandatory
minimum for first degree murder); id. § 5-8-1(a)(1)(d)(iii) (25-year add-on for committing
murder with firearm). The State overreads Buffer on each contention.
¶ 42 We emphasize what Buffer did not do—namely, say that every sentence imposed on a
juvenile of longer than 40 years is per se unconstitutional. The only aspect of Buffer’s sentence
that was unconstitutional concerned the trial court failing to consider his youth at the time of
sentencing. Buffer, 2019 IL 122327, ¶ 42. So the trial court undoubtedly could impose an
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enhanced sentence on a young adult offender if it complied with the constitutional prerequisite
of considering the offender’s youth.
¶ 43 The dissent amplifies the State’s argument that 40 years would not be a de facto life
sentence for Ruiz, even if he were treated as a juvenile for sentencing purposes. But this ignores
the origin of the Illinois Supreme Court’s 40-year number. Instead of being based on “court
decisions, legal literature, or statistical data,” it owes its origin to specific provisions in the
Juvenile Court Act reflecting a legislative judgment that 40 years constitutes a constitutionally
acceptable sentence for juveniles. Id. ¶¶ 37-41. As we have emphasized throughout this
opinion, the Juvenile Court Act was not applied to Ruiz’s sentence because the trial court
considered him an adult under the law.
¶ 44 We acknowledge some dissonance between Ruiz’s request to be treated as a juvenile for
sentencing purposes and our conclusion that he is not subject to Buffer’s 40-year floor. But we
cannot ignore the simple fact of chronological age. There is a difference between a 15-year-
old subject to a 40-year sentence who would be released at age 55 and an 18-year-old subject
to a 40-year sentence who would not be released until age 58. This may seem like a trivial
difference, but it offends statistical predictions about life expectancy for young people who
receive long prison sentences. See id. ¶¶ 65-67 (Burke, J., specially concurring) (finding that
the maximum sentence that should be imposed on juveniles is one that allows release at age
55).
¶ 45 When it comes to young adults subject to juvenile sentencing provisions, our supreme court
has not yet set a lower limit on the length of a sentence that violates Miller provisions. As it
stands now, because the defendant in Buffer was a juvenile and our supreme court crafted its
rule based on a statute applicable only to juveniles, Buffer does not foreclose our conclusion.
¶ 46 At oral argument, discussion involved the decision in Holman and, an appellate decision
applying Holman, People v. Croft, 2018 IL App (1st) 150043. In Holman, our supreme court
said, “A court revisiting a discretionary sentence of life without parole must look at the cold
record to determine if the trial court considered” a set of five factors. Holman, 2017 IL 120655,
¶¶ 46-47. Those factors include (i) defendant’s chronological age and any accompanying
evidence of “particular immaturity, impetuosity, and failure to appreciate risks and
consequences”; (ii) defendant’s family and home environment; (iii) defendant’s degree of
participation in the homicide and any evidence of familial or peer pressure; (iv) defendant’s
incompetence, specifically his or her inability to deal with police officers or lawyers; and
(v) defendant’s prospects for rehabilitation. Id. ¶ 46. In Croft, the court addressed the factors
in a case in which a juvenile defendant appealed from the second stage of successive
postconviction proceedings. The court affirmed because the trial court at the original
sentencing had sufficiently considered the Holman factors. Croft, 2018 IL App (1st) 150043,
¶¶ 24-32. The State, accompanied by the dissent, urges us to follow the same procedure.
¶ 47 We decline due to a host of material distinctions between Holman and Croft and Ruiz (and
Johnson). First, and most significantly, defendants in Holman and Croft were 17, and, thus,
juveniles, at the time of their offenses. Holman, 2017 IL 120655, ¶ 1; Croft, 2018 IL App (1st)
150043, ¶ 4. This means Miller presumptively applied to them as a matter of law. Harris, 2018
IL 121932, ¶ 44 (“the defendant in Holman fell squarely under Miller because he was a juvenile
when his crime was committed”). Ruiz (and Johnson) must make a preliminary showing before
the court undertakes a Holman analysis—that is, establish that Miller applies to them in the
first place.
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¶ 48 As we said at the outset, this greatly narrows the relief we can afford to Ruiz. We must
remand to allow Ruiz to put forward evidence to support his claim that Miller applies to him.
The Holman factors undoubtedly lie ahead, but only if Ruiz can make that first showing.
¶ 49 Also, extremely different procedural postures existed in Holman and Croft. In Holman, the
juvenile defendant sought leave to file a successive postconviction petition in which he did not
raise a Miller claim. Holman, 2017 IL 120655, ¶ 27. Our supreme court addressed the merits
of his claim “in the interests of judicial economy” because the original record sufficiently
developed an as-applied claim. Id. ¶ 32. More importantly, immediately before announcing the
applicable considerations distilled into a five-factor test in Miller, Holman said, “For juvenile
defendants like the defendant in this case ***, any inquiry into the Miller factors is backwards-
looking.” (Emphasis added.) Id. ¶ 47. That the defendant was a juvenile provided a
foundational premise. The record had been sufficiently developed because no fact-finding
needed to occur to determine whether Miller applied to a juvenile defendant.
¶ 50 The procedural differences between Croft and Ruiz are even more stark. The defendant in
Croft had already been granted leave to file his successive postconviction petition, had been
appointed counsel, and had his petition dismissed at the second stage of postconviction
proceedings. Croft, 2018 IL App (1st) 150043, ¶ 12. In other words, the proceedings had
arrived at the stage at which defendant’s burden is higher and after which appointed counsel
had an opportunity to further develop Croft’s claims. See 725 ILCS 5/122-4 (West 2018). And,
as we have said at some length already, the defendant in Croft, as a juvenile, did not have to
make the preliminary showing under Harris that the Miller line of cases applied to him.
¶ 51 We have no quarrel with the procedures announced in Holman and applied in Croft; indeed,
if Ruiz (and Johnson) convince the trial court on remand that Miller applies to them as young
adults, the trial court will have to consider Holman and Croft before it can grant resentencing.
¶ 52 We find that considering Holman now puts the proverbial cart before the horse. As Harris
instructs, young adult defendants are not entitled to a presumption that Miller applies to them
(unlike the defendants in Holman and Croft). See Harris, 2018 IL 121932, ¶ 44. So when
young adults raise claims that the Miller line of cases applies to them, we read our supreme
court’s precedents to set out this procedure:
(i) under Harris, a young adult defendant must plead, and ultimately prove, that his
or her individual characteristics require the application of Miller;
(ii) if, and only if, the young adult makes this showing, then the trial court goes on
to consider whether the initial sentencing hearing complied with Miller, following our
supreme court’s guidance in Holman and this court’s analysis in Croft; and
(iii) if the initial sentencing hearing was Miller-compliant, then the trial court can
reject the defendant’s claim (as the courts did in Holman and Croft); or if the initial
sentencing hearing was not Miller-compliant, then the trial court should order
resentencing.
¶ 53 We hold that Ruiz has stated a claim that, as a matter of law, prejudice has been caused by
reason of Ruiz’s justified failure to raise a constitutional challenge to his sentence in his initial
postconviction petition. Contrary to the dissent’s assertions, this procedure does not “fail[ ] to
recognize that the ‘prejudice’ factor must be shown.” We simply disagree about the nature of
the prejudice. By failing to raise the claim in his initial postconviction petition, Ruiz was
deprived of an opportunity to make a Miller argument at all due to his status as an adult at the
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time of the offense. In other words, even if he had raised a Miller claim in his initial petition,
it would have been rejected out of hand because of his age. By pleading Miller’s applicability
to him as a young adult, Ruiz has attempted to cure that prejudice. We agree that he should be
given that chance in further postconviction proceedings.
¶ 54 As Harris instructs, young adult defendants are not entitled to make an as-applied
challenge to their sentences under Miller unless they first show that Miller applies to them. Id.
¶ 45 (“The record must be developed sufficiently to address defendant’s claim that Miller
applies to his particular circumstances.”). If our supreme court conceptualized prejudice in the
same way as the dissent, then much of the analysis in Harris makes no sense—the court would
have just assumed Miller applied to the defendant and evaluated his initial sentencing hearing.
Of course, the court did not do that. Indeed, the dissent’s rationale, by sidelining Harris,
provides Johnson with a merits ruling on his Miller claim to which he may not be entitled. The
trial court should determine the applicability of Miller, as a factual matter, in the first instance.
¶ 55 Our analysis, however, is not finished—the petition and accompanying documents also
must be enough to justify further proceedings. Smith, 2014 IL 115946, ¶ 35. Importantly, while
Harris left open the possibility of a proportionate penalties clause claim for a young adult, the
Illinois Supreme Court instructed that a defendant must show “how the evolving science on
juvenile maturity and brain development that helped form the basis for the Miller decision
applies to defendant’s specific facts and circumstances.” Harris, 2018 IL 121932, ¶ 46. We are
at the pleading stage, so Ruiz is not required to prove anything. He needs only to plead facts
justifying further proceedings.
¶ 56 Ruiz’s petition, in detailed, well-cited legal argument, sets out why the protections in
Miller, and in the Illinois cases applying it, should benefit young adults. Ruiz cited “recent
research and articles” showing that the brain does not fully develop until the mid-20s, claiming
that “young adults as Ruiz was at 18 years old are more like adolescents than fully mature
adults.” Ruiz claimed that he too was “largely unsettled in [his] characters and habits and this
must be taken into consideration” during sentencing. He claimed that his sentencing hearing
“clearly did not adequately focus on Ruiz[’s] age of 18 and his rehabilitative potential.” And
Ruiz alleged, “[h]ad the court held a hearing specifically tailored to address each of these
[Miller] factors, the court may well have determined a lesser sentence was appropriate.” These
facts suffice to make out a prima facie case that Miller should apply to Ruiz.
¶ 57 Ruiz submitted a motion to cite People v. Carrasquillo, 2020 IL App (1st) 180534. We
granted the motion but find Carrasquillo too different to be of any help. When analyzing the
prejudice prong of the cause and prejudice test, the court emphasized three factors that set
Carasquillo apart: (i) defendant’s age had been misstated in the review of his sentence on direct
appeal; (ii) defendant’s sentence was clouded by the specter of corruption where his “sentence
was one of the very harshest that Judge Wilson delivered, and Judge Wilson did so during a
year when he had accepted a bribe, during a trial with a conspicuous police presence, and to
an 18-year old with no prior criminal record”; and (iii) defendant had been eligible for parole
and had his requests denied. Id. ¶¶ 110-11. The analysis in Carrasquillo is unique to that case
when it comes to a Miller claim, given all the individualized facts animating its analysis. We
find nothing disagreeable in Carrasquillo; it simply does not aid our consideration of Ruiz’s
appeal.
¶ 58 As we recently reaffirmed, “ ‘Illinois has been a national leader in the field of juvenile
justice.’ ” In re Mathias H., 2019 IL App (1st) 182250, ¶ 29 (quoting In re Shermaine S., 2015
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IL App (1st) 142421, ¶ 32). Other states have extended the considerations in Miller to young
adults 18 and over. In the State of Washington, for example, the supreme court referred to
“studies that established a clear connection between youth and decreased moral culpability for
criminal conduct.” State v. O’Dell, 358 P.3d 359, 366 (Wash. 2015). The court held that “a
trial court must be allowed to consider youth as a mitigating factor when imposing a sentence
on an offender like [defendant], who committed his offense just a few days after he turned 18.”
Id. In this way, the law must often play catch-up to other fields of empirical study. For example,
in Robinson v. California, 370 U.S. 660 (1962), the United States Supreme Court relied on
shifting understanding of the nature of addiction—as an illness, not a crime—to find the
criminalization of addict status unconstitutional. As Justice Douglas observed in his
concurrence, centuries of common thought about the nature of addiction had turned out to be
wrong. Id. at 668-78 (Douglas, J., concurring).
¶ 59 At this stage, we must accept Ruiz’s allegations as true. Edwards, 2012 IL App (1st)
091651, ¶ 25. Ruiz’s claim is not barred by our conception of what the law has been; Ruiz
should have been allowed to proceed based on his well-pled assertions. See Harris, 2018 IL
121932, ¶¶ 46-48. His claim has yet to be decided. That determination is not for this court, but
the trial court. For now, the trial court erred when it denied leave to file his claim.
¶ 60 Ineffective Assistance of Counsel
¶ 61 Ruiz next claims that the trial court erred in denying leave to file his claim that trial counsel
was ineffective for failing to investigate and call Christopher Anderson as a witness at trial.
The State responds that Ruiz has failed to establish cause for failing to bring this claim in
Ruiz’s initial postconviction petition because nothing in the record indicates that Anderson
would not have come forward then. We agree that Ruiz has not established cause for failing to
bring this claim earlier, although we reject the State’s assertion that Anderson might have come
forward in 2006 because that would require us to second-guess the facts in Anderson’s
affidavit. See Edwards, 2012 IL App (1st) 091651, ¶ 25 (we must accept all facts alleged in
affidavit as true). Instead, we find Ruiz failed to establish cause because Anderson’s affidavit
would not have been necessary for an ineffectiveness claim in Ruiz’s first petition.
¶ 62 We apply the same definition of cause as in Ruiz’s sentencing claim (supra ¶ 28), and we
find no objective factor impeding Ruiz’s ability to raise his counsel’s ineffectiveness in his
initial postconviction proceedings. As Ruiz correctly argues, the “[f]ailure to present available
witnesses to corroborate a defense has been found to be ineffective assistance.” People v.
Makiel, 358 Ill. App. 3d 102, 107-08 (2005). Ordinarily, when a petitioner raises a claim of
ineffectiveness based on trial counsel’s failure to investigate or call a witness, an affidavit from
that witness is required. E.g., People v. Johnson, 183 Ill. 2d 176, 192 (1998). But this rule has
never been a bright-line rule. People v. Dupree, 2018 IL 122307, ¶ 34. Instead, the court “has
always held that dismissal [of a postconviction petition] is proper when the record or other
evidence *** does not support the petitioner’s claim.” Id. This follows the Act, which requires
a petition to be supported by “ ‘affidavits, records, or other evidence.’ ” Id. ¶ 32 (citing 725
ILCS 5/122-2 (West 2014)). While an affidavit from the nontestifying witness often may be
necessary to claim ineffective assistance for failing to call that witness, the affidavit “will be
required [only] if it is essential *** to support a claim of ineffective assistance.” Id. ¶ 34.
¶ 63 Anderson’s affidavit was unnecessary. Ruiz’s affidavit, attached to his successive petition,
avers that he told trial counsel about Anderson and, before trial, gave counsel Anderson’s home
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address. Ruiz also claimed that counsel’s only reason for failing to investigate involved
counsel’s desire to avoid “[Ruiz’s] bad neighborhood.” Then, as we have already related,
Ruiz’s statement to Assistance State’s Attorney Quinn provided the essential content of
Anderson’s proposed testimony—Anderson had been shot by Gangster Disciples a week
before, and Ruiz knew about it at the time of the Walls shooting. So the record and Ruiz’s own
affidavit supports his claim of ineffectiveness.
¶ 64 The trial record directly supports the testimony that Ruiz believed could be provided by
Anderson. Also, Ruiz’s affidavit shows that he asked counsel to investigate Anderson. So
nothing prevented Ruiz from alleging counsel’s ineffectiveness in his first petition. See id.
¶¶ 35-42 (distinguishing People v. Thompkins, 161 Ill. 2d 148 (1994), People v. Guest, 166 Ill.
2d 381 (1995), Johnson, 183 Ill. 2d 176, and People v. Enis, 194 Ill. 2d 361 (2000)). Ruiz has
failed to show cause for failing to raise this claim in his initial postconviction petition. The trial
court properly denied him leave to file this claim in a successive petition.
¶ 65 Actual Innocence
¶ 66 To prevail on a claim of actual innocence, a successive postconviction petitioner “must
present new, material, noncumulative evidence that is so conclusive it would probably change
the result on retrial.” People v. Coleman, 2013 IL 113307, ¶ 96. New evidence means evidence
“discovered after trial [that] could not have been discovered earlier through the exercise of due
diligence.” Id. Material evidence means evidence “relevant and probative of the petitioner’s
innocence.” Id. And conclusive evidence encompasses evidence considered, along with the
trial evidence, that “would probably lead to a different result.” Id. A trial court can only deny
leave to file a successive postconviction petition raising a claim of actual innocence “where it
is clear *** that, as a matter of law, the petitioner cannot set forth a colorable claim of actual
innocence.” People v. Edwards, 2012 IL 111711, ¶ 24. A petitioner need only set out a
prima facie case at the leave-to-file stage. People v. Bailey, 2017 IL 121450, ¶ 24.
¶ 67 Ruiz argues that the evidence, in the form of Anderson’s testimony, constitutes newly
discovered evidence because Anderson “would not come forward” at trial. Ruiz admits that he
“knew about Anderson’s account at the time of trial,” which the State argues defeats a
contention of newly discovered evidence. According to the State, evidence cannot be newly
discovered if Ruiz knew about the relevant facts, even if the source of those facts recently
agreed to come forward. We agree with the State. “[E]vidence is not newly discovered when
it presents facts already known to a defendant at or prior to trial, though the source of those
facts may have been unknown, unavailable, or uncooperative.” (Emphasis added.) People v.
Jones, 399 Ill. App. 3d 341, 364 (2010) (collecting cases). Under this standard, the evidence
in Anderson’s affidavit cannot be described as “newly discovered.”
¶ 68 Anderson’s affidavit says, “On October 31st 1998 I was shot in the face by (4) four rival
gang members.” In his statement to ASA Quinn, Ruiz explained that “Chris Anderson had
been shot on Halloween Night in the face by rival gang members pertaining to the Gangster
Disciples.” Anderson’s affidavit says, “I told Ruiz the GDs were all in black.” Ruiz’s statement
to ASA Quinn goes on, “[Ruiz] said he could see across the street and he could see three black
teenagers. He told me they were dressed all in black. And he told me he could immediately tell
they were members of the Gangster Disciples.” After Ruiz saw these men, according to his
statement, he shot at them and ran away. Ruiz knew about the information in Anderson’s
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affidavit—that Gangster Disciples shot Anderson and that they dressed in black—at the time
of trial, and the jury heard it through his statement to ASA Quinn.
¶ 69 We find People v. Manrique, 351 Ill. App. 3d 277 (2004), on which Ruiz relies,
distinguishable. There, officers pulled over a motor home driven by Andres Montoya for
speeding. Defendant was a passenger. Id. at 278. During a consent search of the motor home,
officers found bricks of cocaine. Id. at 278-79. In a successive postconviction petition, the
defendant raised a claim of actual innocence and attached an affidavit from Montoya saying
he was willing to testify that the defendant did not know about the cocaine. Id. at 279. In
proceedings on the defendant’s initial postconviction petition, it came out that trial counsel had
attempted to call Montoya at the original trial, but Montoya’s attorney had asserted “his fifth
amendment right against self-incrimination.” Id.
¶ 70 The appellate court found Montoya’s affidavit to be newly discovered evidence because,
given his intent to assert his constitutional right against self-incrimination at trial, “Montoya’s
testimony was unavailable to the defendant.” Id. at 280-81. Montoya, as the driver of the motor
home, could easily have been implicated had he testified that Manrique knew nothing about
the illicit drugs. He was not merely unwilling to testify (see, e.g., Jones, 399 Ill. App. 3d at
354), he had a constitutional right not to testify. See also People v. Molstad, 101 Ill. 2d 128,
135 (1984) (“no amount of diligence could have forced the codefendants to violate their fifth
amendment right to avoid self-incrimination”). We decline to equate a witness asserting “I do
not want to testify” with a witness asserting “I have a right not to testify.” See Edwards, 2012
IL 111711, ¶¶ 35-38 (drawing distinction between witnesses who refused to testify and
codefendant who had a constitutional right not to testify).
¶ 71 Because Ruiz knew the information in Anderson’s affidavit at the time of trial, and because
the jury was exposed to that information through Ruiz’s statement, the evidence is not “newly
discovered,” despite Anderson’s former reluctance to testify. Ruiz’s claim of actual innocence
fails as a matter of law. The trial court properly denied leave to file this claim.
¶ 72 Affirmed in part and reversed in part.
¶ 73 Cause remanded.
¶ 74 JUSTICE PIERCE, dissenting:
¶ 75 I agree with the majority’s finding that Ruiz’s eighth amendment claim lacks merit.
However, I write to express my disagreement with the majority’s finding that Ruiz’s case
should be remanded to the circuit court to allow him an opportunity to prove his Miller claims
and, if proven, to allow the trial court the opportunity to judge the credibility of those claims.
¶ 76 To be clear, in his appeal Ruiz states that he “seeks a new sentencing hearing” based on
Miller factors that do not apply to adult offenders. He wants to receive the same protections
afforded juveniles even though he is an adult. However, if Ruiz was a 15-year-old at the time
of this offense, he would not be eligible for a resentencing hearing based on the Miller
principles because his 40-year sentence was not a de facto life sentence. Miller-related
jurisprudence concerns the imposition of a mandatory or discretionary natural or de facto life
sentence imposed on a juvenile. People v. Buffer, 2019 IL 122327, ¶ 27. Our supreme court
has determined that where a juvenile defendant’s sentence falls within this category, he must
then show that the sentencing court failed to consider his youth and attendant characteristics
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when imposing the sentence in order to obtain a new sentencing hearing. Id. And our supreme
court has declared that “a prison sentence of 40 years or less imposed on a juvenile offender
does not constitute a de facto life sentence in violation of the eighth amendment.” (Emphasis
added.) Id. ¶ 41. On its face, even if Ruiz was a juvenile at the time of this murder, his request
for a new sentencing hearing would fail because he did not receive a de facto life sentence of
more than 40 years.
¶ 77 But Ruiz was an 18-year-old defendant sentenced to a 40-year term of imprisonment. He
was not a juvenile at the time of the offense, and he did not receive a de facto sentence of life
imprisonment. Because there is no authority to extend to this adult defendant protections that
would not be available to any juvenile defendant that did not receive a de facto life sentence,
his Miller claim should also be dismissed, and the judgment should be affirmed.
¶ 78 I further disagree with the majority’s approach in keeping Ruiz’s Miller claims on life
support. In my opinion, the Miller principles do not apply to this adult, 18-year-old defendant
who did not receive a de facto life sentence. However, even assuming that Miller applies, Ruiz
should not be given leave to file a successive postconviction petition because Ruiz simply
cannot establish the necessary prejudice where the record before us shows that his sentencing
hearing complied with Miller. Consistent with the directives of Holman, 2017 IL 120665, and
applying the analysis we used in Croft, 2018 IL App (1st) 150043, I would review the
sentencing record that we have and find that there was no constitutional violation in the
imposition of Ruiz’s sentence.
¶ 79 The majority finds that Harris, 2018 IL 121932, opens the Illinois Constitution for a Miller
challenge by way of collateral attack. I do not disagree. However, Harris is inapposite. In
Harris, the 18-year-old defendant argued that his 76-year sentence shocked the moral sense of
the community, given the facts of his case, his youth, and other mitigating circumstances. Our
supreme court held that the record before the court was insufficient to consider the defendant’s
contention that Miller applied in the context of his proportionate penalties claim because a
Holman analysis could not be made by the court where the trial court did not hold an
evidentiary hearing and the trial court made no findings of fact on Harris’s specific
circumstances to support his Miller claim. The Harris court declined to consider the Miller
issue but noted that the defendant was not foreclosed from raising the claim and that it “could
*** potentially be raised” in a postconviction petition. (Emphasis added). Id. ¶ 48.
¶ 80 Ruiz claims, and the majority agrees, that given the procedural posture of his case, Harris
affords him the opportunity to establish his as-applied Miller challenge in the trial court with
the assistance of postconviction counsel and therefore he should be given leave to file his
successive postconviction petition. However, the Harris court’s statement that a defendant
could potentially raise a Miller claim in a postconviction petition was based on the fact that the
record on appeal was insufficient to consider Harris’s claim where there was no record of any
hearing or finding of facts in the trial court to support his Miller claim.
¶ 81 In contrast, Ruiz had an extensive and detailed sentencing hearing where the trial court
considered the nature of the offense, defendant’s social and criminal background, and,
importantly, his young age. As we stated in Croft, “a key feature of the juvenile’s sentencing
hearing is that the defendant had the ‘opportunity to present evidence to show that his criminal
conduct was the product of immaturity and not incorrigibility.’ ” (Emphasis added.) Croft,
2018 IL App (1st) 150043, ¶ 23 (quoting Holman, 2017 IL 120655, ¶ 49). Croft noted that the
Holman factors are “a nonexhaustive list” and that “nothing in Miller or Holman suggests that
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we are free to substitute our judgment for that of the sentencing court” because the issue is not
the particular sentence the trial court imposed but whether defendant had the opportunity to
present evidence regarding his youth and that the court considered his youth and its attendant
characteristics in reaching its sentencing decision. Id. ¶¶ 32-33.
¶ 82 Accepting Ruiz’s contention, which I do not agree with, that Miller applies to an 18-year-
old (see Edwards, 2012 IL App (1st) 091651, ¶ 25 (at this stage we must accept Ruiz’s
allegations as true)), the majority simply fails to recognize that Ruiz had a Miller compliant
sentencing hearing. At the sentencing hearing for this 18-year-old, the trial court considered
the same factors that the Holman court found to be constitutionally consistent with Miller.
Consequently, in my view, because we have a sufficient record before us, the analysis
employed in Croft is the analysis that the majority should apply and find that defendant was
correctly sentenced.
¶ 83 Similar to Croft, and assuming that the Miller factors apply to young adults like Ruiz, we
have the benefit of the cold, well-developed record of Ruiz’s sentencing hearing that allows us
to determine whether that hearing met the Miller requirements. Because we have a more than
adequate record, we must review Ruiz’s claim in accordance with the guidance provided under
Holman and affirm the denial of the petition for leave to file a successive postconviction
petition. Ruiz clearly had the opportunity to present his youthful mitigation argument to the
trial court during his sentencing hearing. (“[W]e have examined the cold record of the circuit
court’s [sentencing] hearing ***, which includes the common-law record and report of
proceedings, and find that the circuit court considered evidence of the defendant’s youth and
its attendant characteristics at the time of sentencing and that the defendant had” the
opportunity required by Holman. Croft, 2018 IL App (1st) 150043, ¶ 24.) As in Croft, the trial
court in this case had before it the trial testimony, the evidence, Ruiz’s PSI, and the sentencing
arguments of the parties before it sentenced Ruiz.
¶ 84 The cold record of Ruiz’s sentencing hearing emphatically demonstrates that the court did
consider defendant’s age and its attendant characteristics as mitigating factors in crafting the
appropriate sentence for the first degree murder of Nathaniel Walls and the aggravated
discharge of a firearm at Malik Walls. The record reflects that evidence was presented at the
sentencing hearing concerning most of the factors to be considered as set out in Holman. First,
the court considered the fact that Ruiz was a little over 18 years old at the time of the murder.
Ruiz’s young age was emphasized by defense counsel and noted in the PSI. The court was also
fully aware of Ruiz’s background. As to Ruiz’s immaturity, there was no evidence that Ruiz
was in any way immature or developmentally delayed. He had an eighth-grade education, he
had a “great” relationship with teachers, he could hold down a job, and he had goals of getting
his GED. The court was also aware that Ruiz had no mental health issues that would explain
his behavior. Rather, the facts of the case showed that Ruiz committed the murder because he
was an active gang member. Ruiz made the choice to be in a gang, and he also made the
conscious decision to arm himself with a gun and shoot at Nathaniel Walls and his three-year-
old son Malik Walls, killing Nathaniel. Ruiz’s actions were not the result of peer pressure.
Instead, Ruiz was the lead and primary actor in this murder.
¶ 85 The trial court was also aware of the information in the PSI report concerning Ruiz’s home
life, his relationship with his family members, and any mental or physical characteristics that
might have made him less culpable for his crime. The issue of coercion or peer pressure was
also considered by the sentencing court when it noted that it had considered the facts of the
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case, which showed that Ruiz was the shooter acting independently and not as a result of peer
pressure. The court noted the fact that Ruiz “always had the benefit of a very loyal and
supportive family.” The sentencing court noted that Ruiz has “two personas,” one for his
family and the other when he is away from his family. Finally, the court heard evidence and
argument concerning Ruiz’s prospects for rehabilitation, understood his “character,” and found
him to be fully responsible for his adult criminal activity. After consideration of all the relevant
sentencing factors, including factors unique to Ruiz, and after giving him the opportunity for
allocution, the trial court determined and imposed an appropriate sentence. Notably, his now-
complained-of sentence was affirmed on direct appeal.
¶ 86 Unlike constitutionally defective juvenile sentencing hearings where the characteristics of
youth were not considered, the trial court, after finding that Ruiz was the sole cause of the
murder of Nathanial Walls and the shooting of three-year-old Malik Walls, imposed an
aggregate 40-year sentence. There is simply no basis to allow Ruiz, an adult, leave to file a
successive postconviction petition to argue that Miller applies to him so he can get a second
bite at the sentencing apple, where he did not receive a de facto life sentence and where his
sentencing hearing considered all the relevant Miller factors even though he was an adult.
¶ 87 The majority acknowledges that “[a]s Harris instructs, young adult defendants are not
entitled to a presumption that Miller applies to them (unlike the defendants in Holman and
Croft). See Harris, 2018 IL 121932, ¶ 44.” Supra ¶ 52. The majority then states that Harris
requires that:
“(i) *** a young adult defendant must plead, and ultimately prove, that his or her
individual characteristics require the application of Miller;
(ii) if, and only if, the young adult makes this showing, then the trial court goes on
to consider whether the initial sentencing hearing complied with Miller, following our
supreme court’s guidance in Holman and this court’s analysis in Croft; and
(iii) if the initial sentencing hearing was Miller-compliant, then the trial court can
reject the defendant’s claim (as the courts did in Holman and Croft); or if the initial
sentencing hearing was not Miller-compliant, then the trial court should order
resentencing.” Supra ¶ 52.
¶ 88 The majority’s approach under Harris is fundamentally in error because it fails to recognize
that the “prejudice” factor that must be established in order to be granted leave to file a
successive postconviction petition cannot be established in this case. Ruiz must establish cause
and prejudice before being granted leave to file a successive postconviction petition.
“Prejudice” is defined as an error so infectious to the proceedings that the resulting conviction
violates due process. Pitsonbarger, 205 Ill. 2d at 464; 725 ILCS 5/122-1(f) (West 2018). The
majority errs in casually stating the Ruiz was prejudiced because he had cause for not raising
his Miller argument in his postconviction petition. This is a misstatement of the application of
the prejudice requirement. As previously stated, Ruiz has not established the requisite
prejudice sufficient for further proceedings. Because a reviewing court can determine from the
cold record that no constitutional error occurred (Holman), as we can in this case, then it
follows that Ruiz cannot establish the necessary prejudice to be granted leave to file his
successive postconviction petition.
¶ 89 The majority also errs in remanding to allow the filing of a successive postconviction
petition. Assuming Miller applies here, even if the record in this case demonstrated that a
constitutional error occurred due to the sentencing court’s failure to consider this adult
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defendant’s youthful characteristics, the appropriate remedy would be to remand for a new
sentencing hearing rather than allowing defendant leave to file a successive postconviction
petition.
¶ 90 In Buffer, 2019 IL 122327, ¶ 7, the juvenile was sentenced to a de facto life sentence of 50
years and sought Miller protection in his postconviction petition that was summarily dismissed.
On review, the supreme court determined that the cold record was sufficient to review the
defendant’s Miller claim, found that no additional factual development was required, and
concluded that the defendant’s sentence was a de facto life sentence that was imposed without
the trial court considering the defendant’s youth and its attendant characteristics. Id. ¶ 42. The
court did not allow the filing of the postconviction petition and, instead, remanded for
resentencing, stating:
“[T]he record before us does not require factual development. All of the facts and
circumstances to decide defendant’s claim are already in the record. [Citation.] While
the circuit court stated that it ‘considered all of the relevant statutory requirements,’ the
record does not indicate that the court considered defendant’s youth and its attendant
characteristics. [Citation.] Accordingly, we earlier held that defendant’s 50-year prison
sentence, imposed for a crime he committed while a juvenile, violated the eighth
amendment. This holding applies retroactively and is cognizable in defendant’s
postconviction proceeding. [Citation.]
Based on the particular issue raised in this appeal and in the interests of judicial
economy, we agree with the appellate court that the proper remedy is to vacate
defendant’s sentence and to remand for a new sentencing hearing.” Id. ¶¶ 46-47.
¶ 91 In my view, the record on appeal in this case is unquestionably sufficient to decide whether
Ruiz’s sentencing hearing complied with Miller, even though Miller does not apply because
Ruiz was 18 at the time of the offense and he did not receive a de facto life sentence. The
record establishes without question that the trial court considered his age and attendant
characteristics and fashioned a sentence that was appropriate for the senseless, yet intentional,
crimes he committed.
¶ 92 For these reasons, I respectfully dissent.
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