People v. Johnson , 2020 IL App (2d) 170646 ( 2020 )

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Appellate Court Date: 2020.11.09
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People v. Johnson, 2020 IL App (2d) 170646Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DERRON JOHNSON, Defendant-Appellant.
District & No. Second District
No. 2-17-0646
Filed February 20, 2020
Decision Under Appeal from the Circuit Court of Kane County, No. 03-CF-866; the
Review Hon. Divya K. Sarang, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Peter A. Carusona, and Editha Rosario-Moore, of
Appeal State Appellate Defender’s Office, of Ottawa, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino,
Edward R. Psenicka, and Adam Trejo, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Justices Hudson and Bridges concurred in the judgment and opinion.
OPINION
¶1 On April 26, 2017, the defendant, Derron Johnson, filed a motion for leave to file a
successive postconviction petition, along with the substantive petition, under section 122-1(f)
of the Post-Conviction Hearing Act (725 ILCS 5/122-1(f) (West 2016)). The trial court denied
the motion. We affirm.
¶2 I. BACKGROUND
¶3 On May 20, 2004, following a jury trial, the defendant was found guilty of the first degree
murder (720 ILCS 5/9-1(a)(2) (West 2002)) of John Szilage, based on the theory that he was
accountable for the conduct of Andrew Proctor, who committed the acts causing Szilage’s
death. The defendant was subsequently sentenced to 27 years’ imprisonment. On direct appeal,
this court affirmed the defendant’s conviction and sentence. See People v. Johnson, 368 Ill.
App. 3d 1073 (2006). The evidence presented at the defendant’s trial is detailed in this court’s
opinion on direct appeal. Id. On October 9, 2007, the defendant filed a pro se petition for
postconviction relief. On December 3, 2013, he filed an amended postconviction petition. The
trial court granted the State’s motion to dismiss that petition, and this court affirmed the trial
court’s dismissal. People v. Johnson, 2016 IL App (2d) 140844-U.
¶4 On April 26, 2017, the defendant filed a motion for leave to file a successive postconviction
petition, attaching the petition to the motion. The defendant asserted that, considering his age
at the time of the offense and his level of participation, his 27-year sentence violated the eighth
amendment’s ban on cruel and unusual punishment (U.S. Const., amend. VIII) and the Illinois
Constitution’s proportionate penalties clause (Ill. Const. 1970, art. I, § 11). In support, the
defendant cited to Miller v. Alabama, 567 U.S. 460 (2012), which held that sentencing a
juvenile offender to mandatory life imprisonment without parole violated the eighth
amendment. The defendant also argued that postconviction counsel was ineffective in failing
to raise this issue in his first postconviction petition.
¶5 On July 24, 2017, the trial court denied the defendant’s motion for leave to file a successive
postconviction petition. The trial court found that the defendant had failed to show cause for
not raising his Miller claim earlier when his amended postconviction petition was filed on
December 3, 2013, 15 months after the Miller decision. The trial court also found that the
defendant failed to show prejudice because Miller did not apply to his 27-year sentence, which
was not a de facto life sentence. Finally, the trial court found that postconviction counsel was
not ineffective in failing to raise the Miller claim in the first postconviction petition since any
such argument would have been without merit. The defendant filed a timely notice of appeal
from the order.
¶6 II. ANALYSIS
¶7 On appeal, the defendant raises a new argument—that the truth in sentencing statute,
section 3-6-3(a)(2)(i) of the Unified Code of Corrections (Code) (730 ILCS 5/3-6-3(a)(2)(i)
(West 2002)), requiring him to serve his entire sentence without the possibility of parole,
violates the eighth amendment’s ban on cruel and unusual punishment (U.S. Const., amend.
VIII) and the Illinois Constitution’s proportionate penalties clause (Ill. Const. 1970, art. I,
§ 11). The defendant argues that this provision of the Code is unconstitutional both facially
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and as applied. The defendant further argues that he has established cause for the delay in filing
this claim because his argument is a novel constitutional claim that was not available to him at
the time he filed his motion for leave to file a successive petition. Further, he argues that he
demonstrated prejudice because his Miller claim retroactively applies to his sentence.
¶8 The Post-Conviction Hearing Act contemplates the filing of only one petition without leave
of court. 725 ILCS 5/122-1(f) (West 2016). To obtain leave to file a successive postconviction
petition, a defendant must show “cause” and “prejudice.” Id. “[C]ause” is “an objective factor
that impeded [the defendant’s] ability to raise a specific claim during his or her initial post-
conviction proceedings.” Id. § 122-1(f)(1). “[P]rejudice” requires a showing 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.” Id. § 122-1(f)(2). When faced with a
motion for leave to file a successive postconviction petition, the court conducts “a preliminary
screening” to determine whether the motion adequately alleges facts that make a prima facie
showing of cause and prejudice. People v. Bailey, 2017 IL 121450, ¶ 24. Where the trial court
does not hold an evidentiary hearing, we review de novo the denial of a defendant’s motion for
leave to file a successive postconviction petition. See People v. Gillespie, 407 Ill. App. 3d 113,
124 (2010).
¶9 At the outset, the State argues that the defendant waived his challenge to the
constitutionality of his sentence because, at the sentencing hearing, trial counsel acknowledged
the legislatively imposed sentencing requirements and stated that he was “not arguing [about]
this either.” The State also asserts that the defendant forfeited his argument by not raising the
constitutionality of the truth in sentencing statute in his motion for leave to file a successive
postconviction petition or in the substantive petition. Although defendant is now raising this
issue for the first time on appeal from the denial of that motion, the State’s waiver and forfeiture
arguments are without merit. The defendant is essentially arguing that his sentence violates the
constitution based on the reasoning in Miller. As noted, a sentence that contravenes the
constitution may be challenged at any time. People v. Strawbridge, 404 Ill. App. 3d 460, 470
(2010). Furthermore, while it is generally true that a defendant should present an as-applied
constitutional challenge for the first time in the trial court so as to create a sufficiently
developed record, there is an exception to that rule for an as-applied claim based on Miller, for
which the record is sufficiently developed for appellate review. People v. Holman, 2017 IL
120655, ¶ 32. In the present case, as the facts and circumstances necessary to decide the
defendant’s claim are already in the record, we decline to find the issue waived or forfeited
and will address the merits of the defendant’s claim. See id.¶ 10 Turning to the merits, we review de novo arguments concerning the constitutionality of a
statute. People v. Cavazos, 2015 IL App (2d) 120444, ¶ 82. All statutes are presumed
constitutional and, where possible, we must construe a statute to uphold its constitutionality.
Id. A statute is facially unconstitutional when there are no circumstances in which the statute
could be validly applied. People v. Davis, 2014 IL 115595, ¶ 25. Courts have held that the truth
in sentencing statute can be constitutionally applied under some circumstances. See People v.
Patterson, 2014 IL 115102, ¶¶ 107-10; People v. Gorgis, 337 Ill. App. 3d 960, 975 (2003) (the
imposition of truth in sentencing guidelines for first degree murder defendants is
constitutionally permissible). The defendant offers no reason to depart from these holdings,
and the defendant’s argument that section 3-6-3(a)(2)(i) of the Code is facially unconstitutional
necessarily fails.
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¶ 11 The defendant’s as-applied challenge is premised on the United States Supreme Court
decision in Miller. In Miller, the Court held that, for those convicted of homicide, the eighth
amendment prohibits “a sentencing scheme that mandates life in prison without possibility of
parole for juvenile offenders.” Miller, 567 U.S. at 479. Our Illinois Supreme Court has further
held that (1) Miller extends to a mandatory term of years that is the functional equivalent of
life without the possibility of parole (de facto life sentence) (People v. Reyes, 2016 IL 119271,
¶¶ 9-10 (per curiam)) and (2) Miller also applies to discretionary sentences of life without
parole for juvenile defendants (Holman, 2017 IL 120655, ¶ 40).
¶ 12 Nonetheless, since the decision in Miller, courts in this state have repeatedly rejected
similar as-applied challenges regarding the constitutionality of section 3-6-3(a)(2)(i) of the
Code. See People v. Pacheco, 2013 IL App (4th) 110409, ¶ 60 (application of the truth in
sentencing statute was not unconstitutional where juvenile defendant was convicted of first
degree murder based on accountability theory and sentenced to 30 years’ imprisonment); see
also People v. Banks, 2015 IL App (1st) 130985, ¶ 23; Cavazos, 2015 IL App (2d) 120444,
¶ 86.
¶ 13 The Pacheco court specifically noted that, under Miller, the eighth amendment did not
prohibit “a juvenile defendant from being subject to the same mandatory minimum sentence
as an adult, unless the mandatory minimum sentence was death or life in prison without the
possibility of parole.” Pacheco, 2013 IL App (4th) 110409, ¶ 58. In the present case, the
defendant was not sentenced to natural life without the possibility of parole. Rather, his
sentence for murder was only 7 years longer than the minimum sentence and 33 years shorter
than the maximum sentence. Further, the 27-year sentence was not a de facto life sentence.
People v. Buffer, 2019 IL 122327, ¶ 40 (in determining whether a prison term is a de facto life
sentence, the line is drawn at 40 years). Accordingly, the defendant has not established that his
sentence falls under the protections of Miller.
¶ 14 Moreover, to the extent Miller requires that, before sentencing a juvenile, the trial court
must have an opportunity to consider the juvenile’s age at the time of the offense, that
requirement was satisfied here. The record indicates that the trial court considered the
defendant’s age, the circumstances of his family life growing up, his lack of a criminal history,
and the contradictory evidence of his level of participation in the offense. The trial court also
considered the defendant’s potential for rehabilitation and his ineligibility for good-time credit.
The trial court acknowledged that the habits and character of juveniles, as compared to adults,
are unformed and unsettled. Further, the trial court did not feel constrained by the mandatory
minimum sentence as evidenced by it sentencing the defendant to seven years more than the
minimum allowable. Accordingly, even if we were to conclude that Miller applied to the
defendant’s determinate sentence of 27 years, the record reflects no violation of Miller.
¶ 15 In so ruling, we note that the defendant relies on People v. Othman, 2019 IL App (1st)
150823, in arguing that the truth in sentencing statute is unconstitutional as applied to him.
However, the portion of the Othman decision that the defendant relies on has since been
vacated. See People v. Othman, No. 125580 (Ill. Jan. 9, 2020) (supervisory order).
¶ 16 As the defendant’s eighth-amendment claim based on Miller fails, so does his claim under
the proportionate-penalties clause. Patterson, 2014 IL 115102, ¶ 106 (the proportionate-
penalties clause is “co-extensive with the eighth amendment’s cruel and unusual punishment
clause”). Because the defendant’s arguments have no merit, he has failed to establish the
prejudice prong of the cause-and-prejudice test. We thus affirm the trial court’s denial of the
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defendant’s motion for leave to file a successive postconviction petition.
¶ 17 III. CONCLUSION
¶ 18 For the reasons stated, the judgment of the circuit court of Kane County is affirmed.
¶ 19 Affirmed.
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