People v. Bahena ( 2020 )

2020 IL App (1st) 180058-UFIFTH DIVISION
Order filed: June 19, 2020
No. 1-18-0058
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 3175
)
JOSE BAHENA, ) Honorable
) Maura Slattery Boyle,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court.
Justices Rochford and Delort concurred in the judgment.
ORDER
¶1 Held: We affirm the order of the circuit court denying the defendant’s motion for leave
to file a successive postconviction petition because he failed to demonstrate that
he suffered prejudice from the court’s decision to sentence him to a 45-year
prison term.
¶2 The defendant, Jose Bahena, appeals from an order of the circuit court of Cook County,
denying his motion for leave to file a second successive postconviction petition pursuant to the
Post–Conviction Hearing Act (Act) (725 ILCS 5/122 et. seq. (West 2012)). On appeal, he argues
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that the circuit court erred in denying his motion for leave to file a successive postconviction
petition because he met the requirements of the Act’s cause-and-prejudice test. For the reasons
that follow, we affirm.
¶3 The facts of this case are fully set forth in our order disposing of the defendant’s direct
appeal. See People v. Bahena, 2012 IL App (1st) 102054-U, ¶¶ 6-22. We set forth only those
facts necessary for an understanding of this appeal.
¶4 The defendant, who was 19 years old at the time, was charged with multiple counts of
first-degree murder in connection with a January 8, 2008 shooting that resulted in the death of
Juan Lebron. Following a jury trial, the defendant was found guilty of first-degree murder and
the circuit court sentenced him to 45 years’ imprisonment, which included 20 years for the
murder and 25 years for personally discharging a firearm.
¶5 The evidence at trial established that, on January 8, 2008, two groups of men from rival
gangs were engaged in a verbal altercation inside of a liquor store. One group included the
defendant and the other included Lebron and Jason Brock. According to the store clerk, Saleh
Abdulla, he had deescalated the situation and the defendant’s group was leaving the store when
one of the people in the other group (later identified as Brock) “took his jacket off” and “start[ed]
calling names.” The defendant turned around, pulled out a gun, and fired. Abdulla did not see
anyone else with a firearm. Abdulla’s testimony is consistent with video surveillance footage.
¶6 Brock testified that he entered the liquor store with Lebron and another friend and went
to the rear of the store, where they saw two other men. One of the two men asked Lebron what
gang he was in. The “other individual grabbed a bottle off the shelf,” and Brock responded by
also grabbing a bottle. One of the two men asked Brock what gang he was in, and Brock
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responded that he was a Simon City Royal. A store clerk temporarily de-escalated the situation,
but one of the individuals ran out of the store and returned with three other men, including the
defendant. According to Brock, he felt “trapped” and called a friend on his phone and requested
a gun. Brock acknowledged that he yelled “FSK” at the other group, meaning “LaFamilia Stone
Killer,” to “disrespect” that gang. He recalled that Lebron was “trying to be the peacemaker” and
told Brock “to back up, to leave him alone.” As the defendant approached, Lebron “grabbed
[Brock] and tried to place [Brock] behind him.” Lebron pushed the defendant, and the defendant
fired a total of five shots. On cross-examination, Brock acknowledged that defendant was the
only person armed with a gun.
¶7 The defendant testified that he was a member of the LaFamilia Stone gang. On the night
in question, he entered the liquor store after he was told that one of his friends was being
threatened. The defendant acknowledged that he was carrying a firearm. Once inside, he heard
someone in the back of the liquor store say “Stone killer” and heard Brock request a gun while
talking on his phone. After Brock ended his phone call, the defendant saw him reach toward his
waist. Lebron then pushed him backward and, believing that Brock was armed, the defendant
opened fire. On cross-examination, the defendant conceded he was the only person in the store
with a gun and that he fired five shots while standing near the front door.
¶8 The jury found the defendant guilty of first-degree murder and found that he personally
discharged a firearm in the commission of the offense that proximately caused Lebron’s death.
At the defendant’s sentencing hearing, the State relied on a victim impact statement and the facts
of the offense in aggravation. In mitigation, the defense cited the defendant’s age, lack of
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criminal history, physically abusive father, and alcohol problems. The defendant gave a
statement in allocution and apologized to Lebron’s family and his own family.
¶9 The circuit court sentenced the defendant to 45 years’ imprisonment, which include a 25-
year enhancement for personally discharging a firearm. In announcing its decision, the court
acknowledged that the defendant had “suffered physical abuse” and had substance abuse issues.
The court characterized the offense as “senseless” and gang related. It told the defendant that,
“[t]he fact of the matter is by the time that your sentence is done you will have spent double the
amount behind bars versus what you spent out on the street.” The defendant filed a motion to
reconsider his sentence, which the court denied.
¶ 10 On direct appeal, we affirmed the defendant’s conviction and sentence over his
contention that the circuit court erred when it denied his motion to admit evidence of Brock’s
violent character. People v. Bahena, 2012 IL App (1st) 102054-U.
¶ 11 On January 1, 2013, the defendant filed a pro se postconviction petition pursuant to the
Act, alleging ineffective assistance of both his trial and appellate counsel. On March 20, 2013,
the circuit court summarily dismissed the petition. The Office of the State Appellate Defender
filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), which we
granted on January 30, 2015. People v. Bahena, 2015 IL App (1st) 131791-U.
¶ 12 On February 19, 2016, the defendant filed his first successive postconviction petition
under the Act, raising claims of actual innocence and a Brady violation. The defendant’s claims
were premised on an affidavit provided by Brock and attached to the defendant’s petition, in
which Brock averred that he and Lebron sought out a liquor store in rival gang territory hoping
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to start a confrontation and that they purposefully provoked the defendant by implying they were
armed.
¶ 13 On April 11, 2016, the circuit court denied the defendant’s motion for leave to file his
first successive postconviction petition, finding that the defendant did not raise a colorable claim
of actual innocence because the evidence contained in the Brock affidavit was: not newly
discovered, cumulative, and not of such a conclusive character that it would have changed the
result on retrial. The court also found that the defendant’s claim of a Brady violation failed
because it was not based on “material” evidence and because he failed to demonstrate “cause” to
assert the Brady claim in a successive petition. On appeal, we affirmed the circuit court’s denial.
People v. Bahena, 2020 IL App (1st) 161515-U.
¶ 14 On November 7, 2017, the defendant filed a motion for leave to file a second successive
postconviction petition under the Act and attached a postconviction petition, arguing that his 45-
year sentence is a de facto life sentence that violates the eighth amendment to the United States
Constitution and the proportionate penalties clause of the Illinois Constitution because it was
imposed without consideration of his age, potential for rehabilitation, or circumstances of the
case, and shocks the moral sense of the community. He also argued that the 25-year firearm
enhancement is unconstitutional as applied to him because he was acting in self-defense, and as
such, the statute’s deterrent effect is inapplicable.
¶ 15 In support of his claim that his 45-year sentence was unconstitutional, the defendant
attached to his petition the following two newspaper articles: “Research Shows that Criminal
Offending Ends During the Young Adult Stage of Life” from a February 2015 Juvenile Justice
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Initiative publication and a October 2, 2015 Washington Post editorial entitled “Why 21 year-old
offenders should be tried in family court.”
¶ 16 On November 16, 2017, the circuit court denied the defendant’s motion for leave to file a
second successive postconviction petition, finding that the petition was “patently without merit”
because it “erroneously indicates that Miller somehow applies to this situation, which it does
not.” This appeal followed.
¶ 17 On appeal, the defendant contends that the circuit court erred in denying him leave to a
file second successive postconviction petition. Specifically, the defendant argues that his motion
met the cause-and-prejudice test as to his claim that his 45-year sentence is unconstitutional
under both the United States and Illinois constitutions.
¶ 18 Generally, a defendant may file only a single postconviction petition under the Act. 725
ILCS 5/122-1(f); People v. Edwards, 2012 IL 111711, ¶ 29. The bar against successive
proceedings is relaxed in two situations: (1) where the defendant can establish cause and
prejudice for failing to raise the claim in the original postconviction proceeding; or (2) where the
defendant raises a colorable claim of actual innocence. Edwards, 2012 IL 111711, ¶¶ 22-23; 725
ILCS 5/122-1(f) (West 2016). Under the Act, “cause” is defined as an objective factor that
impeded the defendant’s ability to raise a specific claim during his prior postconviction
proceedings; “prejudice” is occasioned by an error which so infected the trial that the resulting
conviction or sentence violated due process. 725 ILCS 5/122-1(f) (West 2016). Our supreme
court has held that “leave of court to file a successive postconviction petition should be denied
when it is clear, from a review of the successive petition and the documentation submitted by the
petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive
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petition with supporting documentation is insufficient to justify further proceedings.” People v.
Smith, 2014 IL 115946, ¶ 35. We review the denial of a defendant’s motion for leave to file a
successive postconviction petition de novo. People v. Miranda, 2018 IL App (1st) 170218, ¶ 22.
¶ 19 The defendant contends that he made the requisite showings of cause and prejudice under
the Act. As to cause, he argues that two of the primary authorities on which his claim relies,
People v. Reyes, 2016 IL 119271, and People v. Harris, 2016 IL App (1st) 141744, were not
decided until after he filed his prior postconviction petitions. As to prejudice, the defendant
argues that his 45-year sentence is a de facto life sentence and is unconstitutional when applied
to him, a 19-year-old whose “brain was still developing and had not yet fully matured into
adulthood.”
¶ 20 The State responds that the defendant fails both elements of the test because he could
have made a good faith argument with precedent available to him at the time of his prior
postconviction petitions and because he cannot establish prejudice. We agree with the State that
the defendant cannot establish prejudice from the circuit court’s decision to sentence him to 45
years’ imprisonment.
¶ 21 We first turn to the defendant’s claim that his 45-year sentence is a violation of the eighth
amendment to the United States Constitution (U.S. Const., amends. VIII, XIV). In Miller v.
Alabama, 567 U.S. 460 (2012), the United States Supreme Court held that the eighth amendment
“forbids a sentencing scheme that mandates life in prison without possibility of parole for
juvenile offenders.” Miller, 567 U.S. at 479. The Court emphasized that “[m]andatory life
without parole for a juvenile precludes consideration” of numerous mitigating factors, including
the juvenile’s age and its “hallmark features,” and the possibility of rehabilitation. Miller, 567
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U.S. at 477-78. Additionally, the Court held that “a judge or jury must have the opportunity to
consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”
Id. at 489. In Montgomery v. Louisiana, 577 U.S. ––––, ––––, 136 S. Ct. 718, 736 (2016), the
Court clarified that Miller applies retroactively “to juvenile offenders whose convictions and
sentences were final when Miller was decided,” including cases on collateral review.
¶ 22 The Illinois Supreme Court has ruled that Miller applies to discretionary, as well as
mandatory life sentences, (People v. Holman, 2017 IL 120655, ¶ 40), and also to de facto life
sentences, or sentences “that cannot be served in one lifetime” and have “the same practical
effect on a juvenile defendant’s life as would an actual mandatory sentence of life without
parole” (People v. Reyes, 2016 IL 119271, ¶¶ 9-10). Recently, our supreme court in People v.
Buffer, 2019 IL 122327, concluded that a sentence exceeding 40 years was a de facto life
sentence, requiring the sentencing court to consider “[the] defendant’s youth and its attendant
circumstances.” Buffer, 2019 IL 122327, ¶¶ 41-42.
¶ 23 Here, the defendant was 19 years old when he shot Lebron. The Supreme Court in Miller
explicitly held that the eighth amendment only prohibits “mandatory life without parole for those
under the age of 18” at the time of their crimes. (Emphasis added.) Miller, 567 U.S. at 465. Our
supreme court later observed that, when the United States Supreme Court held that 18 would be
the age to differentiate between juvenile and adult offenders, it was not “based primarily on
scientific research” and merely coincided with the point where society determines adulthood and
childhood for many other purposes. People v. Harris, 2018 IL 121932, ¶ 60 (citing Roper, 543
U.S. at 574). The Harris court further noted that new research findings still did not alter that
“traditional line.” Id. The supreme court expressed agreement with those courts that had
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repeatedly held that the age of 18 still marked the line between juveniles and adults for
sentencing purposes. Id. ¶ 61. Although the defendant urges this court to change where that line
is drawn, such a task is best left to the legislature. See Buffer, 2019 IL 122327, ¶¶ 34-35.
¶ 24 We turn next to the defendant’s argument that his 45-year sentence violates the
proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. 1, § 11). Article I,
section 11 of the Illinois Constitution provides, in relevant part, that “[a]ll penalties shall be
determined both according to the seriousness of the offense and with the objective of restoring
the offender to useful citizenship.” Ill. Const. 1970, art I, § 11. A sentence violates the
proportionate penalties clause if it is “ ‘cruel, degrading, or so wholly disproportionate to the
offense as to shock the moral sense of the community.’ ” People v. Sharpe, 216 Ill. 2d 481, 487
(2005) (quoting People v. Moss, 206 Ill. 2d 503, 522 (2003)). We may determine whether a
sentence shocks the moral sense of the community by considering both objective evidence and
“the community’s changing standard of moral decency.” People v. Hernandez, 382 Ill. App. 3d
726, 727 (2008).
¶ 25 The defendant contends that his sentence shocks the moral sense of the community
because his 19-year-old brain was no different than that of a juvenile offender, and thus, he
shared juvenile offenders’ diminished culpability and enhanced rehabilitative potential. He also
argues that his sentence denies him the opportunity of being rehabilitated into a useful citizen
because he will not be released until age 64 “with no retirement plan or savings.” Lastly, he
argues that, pursuant to our supreme court’s holding in Harris, his petition must advance for
further proceedings. The State responds that the defendant has failed to allege sufficient facts to
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support his claim that he should be treated similar to a juvenile offender. We agree with the
State.
¶ 26 The 18-year-old defendant in Harris, on which the defendant primarily relies, argued on
direct appeal that his 76-year sentence shocked the moral sense of the community given the facts
of his case, his youth, and other mitigating circumstances. Harris, 2018 IL 121932, ¶ 36. The
court, however, noted that there was no evidentiary hearing or factual development to support the
defendant’s claim in the trial court. Id. ¶ 46. The court thus held that the record was insufficiently
developed to address his contention that Miller applied to his proportionate penalties claim. Id. ¶
48. Nonetheless, the Harris court observed that the defendant could raise the claim in a
postconviction petition. Id.
¶ 27 Here, the defendant argues that he should have the opportunity to develop the record to
determine whether the protections of Miller can apply to a 19-year-old offender. Successive
postconviction petitions, however, are “highly disfavored” (Bailey, 2017 IL 121450, ¶ 39) and
meeting the cause-and-prejudice test is “more exacting standard” than the test for surviving the
first stage of an initial postconviction petition (Conick, 232 Ill. 2d at 142). In addition, a
defendant must submit enough documentation to allow a circuit court to determine whether the
cause-and-prejudice test was met. Smith, 2014 IL 115946, ¶ 35 (quoting Tidwell, 236 Ill. 2d at
161). The Harris court did not specify the requirements to meet the cause-and-prejudice test.
¶ 28 In this case, the defendant’s motion for leave to file a successive postconviction petition
did not provided any evidence to indicate how his own immaturity or individual circumstances
would provide a compelling reason to allow him to file a second successive postconviction
petition. Rather, on appeal, the defendant asserts that his behavior “was likely influenced by his
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peers” because the shooting was gang related and that he acted impulsively and rashly owing to
the fact that he had previously been the victim of gang-related violence. He even implies that a
previous brain injury might have played a factor. However, these factual allegations were
missing from his motion for leave to file a successive postconviction petition; instead, his motion
merely contained general assertions that immaturity and brain development commonly
associated with juveniles can also extend into young adulthood. We also note that, elsewhere in
his motion, the defendant undercuts his current argument that his actions were the result of a still
developing brain by contending that his actions on the day in question demonstrated “restraint”
and that “to this day [he] believes his actions were justified.” Simply put, the defendant’s general
assertions, along with his recitation of various studies regarding the evolving science of juvenile
maturity and development, are insufficient to survive the more exacting standard that would
warrant the filing of a successive postconviction petition. People v. Holman, 2017 IL 120655, ¶¶
30 (citing People v. Thompson, 2015 IL 118151). The circuit court, therefore, correctly denied
the defendant’s motion because he could not establish prejudice under the cause-and-prejudice
test.
¶ 29 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 30 Affirmed.
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