People v. Herrera ( 2020 )

2020 IL App (1st) 173111-UFIFTH DIVISION
Order filed: July 24, 2020
No. 1-17-3111
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. 04 CR 26256
)
)
SALVADOR HERRERA, ) Honorable
) Nicholas Ford,
Defendant-Appellant. ) Judge, Presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court.
Justice Delort concurred in the judgment.
Justice Hall dissented.
ORDER
¶1 Held: We affirmed the trial court’s denial of the defendant’s pro se motion for leave to
file a successive petition for relief under the Post-Conviction Hearing Act (725
No. 1-17-3111
ILCS 5/122-1 et seq. (2016)), asserting claims under the eighth amendment to the
United States Constitution (U.S. Const., amend. VIII) and the Proportionate
Penalties Clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). We
held that: (1) having been convicted and sentenced for a murder committed when
he was 18 years old, the supreme court’s decision in People v. Harris, 2018 IL
121932, foreclosed the defendant’s eighth amendment argument based upon the
Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012) that his age
and 50-year sentence qualifies him for the sentencing protections afforded to
juveniles; and (2) the petition failed to allege facts in support of an as-applied
violation of the Proportionate Penalties Clause showing that the evolving science
on maturity and brain development applies to his specific facts and circumstances.
¶2 The defendant appeals from an order of the trial court, denying him leave to file a
successive postconviction petition challenging his 50-year sentence for a murder he committed
when he was 18 years old as a violation of both the eighth amendment to the United States
Constitution (U.S. Const., amend. VIII) and the Proportionate Penalties Clause of the Illinois
Constitution (Ill. Const. 1970, art. I, § 11). For the reasons which follow, we affirm.
¶3 The defendant was charged with first degree murder as the result of the death of David
Ortiz. The evidence at trial established that the defendant fired gunshots at a group of rival gang
members, killing Ortiz. At the time of the shooting, the defendant was 18 years old. Following a
jury trial, the defendant was convicted of first degree murder and sentenced to 50 years’
imprisonment. On the defendant’s direct appeal, this court affirmed his conviction and sentence.
People v. Herrera, No. 1-06-0913 (2007) (unpublished order under Supreme Court Rule 23).
Subsequently, the defendant filed a pro se petition seeking relief under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)). The trial court summarily dismissed
that petition, and the defendant appealed. This court affirmed the summary dismissal. People v.
Herrera, No. 1-13-0420 (2014) (unpublished order under Supreme Court Rule 23).
¶4 On June 28, 2017, the defendant filed a pro se motion for leave to file a successive
postconviction petition, attaching the successive postconviction petition that he sought leave to
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file. In that proposed successive postconviction petition, the defendant alleged that the juvenile
sentencing protections set forth in Miller v. Alabama, 567 U.S. 460 (2012), should apply to him
because he was 18 years old at the time he committed the offense for which he was convicted.
He asserted that, in imposing a de facto life sentence of 50 years’ imprisonment, the trial court
failed to consider his age and lack of mature brain development as mitigating factors. The
defendant referenced “a study showing brain development for most young adults/juveniles 18-24
years of age.” He asserted that a life sentence for a crime committed as a young adult whose
crime reflects the transient immaturity of youth is disproportionate in all but the rarest of cases.
The defendant argued in the proposed successive petition that his 50-year sentence violates both
the United States and Illinois Constitutions and requested that his sentence be vacated and he be
resentenced. On September 1, 2017, the circuit court denied the defendant leave to file his
successive postconviction petition, and this appeal followed.
¶5 In urging reversal of the trial court’s order denying him leave to filed a successive
postconviction petition, the defendant contends that the successive postconviction petition that he
sought leave to file (hereinafter referred to as the petition) established both cause for and
prejudice from failing to raise the claim in an earlier petition. He contends that the petition shows
that his 50-year sentence is a de facto life sentence in violation of both the eighth amendment to
the United States Constitution and the Proportionate Penalties Clause of the Illinois Constitution
as applied to him. The defendant contends that the petition shows that his 18-year-old brain was
no different than that of a juvenile, and as a consequence, he was entitled to the same sentencing
protections that juveniles are entitled to under the holding in Miller.
¶6 Under the Act, a defendant may raise a claim of a constitutional violation in his trial or in
sentencing. People v. Edwards, 2012 IL 111711, ¶ 21. The Act contemplates the filing of one
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postconviction petition. Id. ¶ 2 . Claims not raised in an initial petition are waived (Id. ¶ 21)
unless the defendant can show cause for and prejudice from failing to raise the claim in the
earlier petition or makes a colorable claim of actual innocence (People v. Robinson, 2020 IL
123849, ¶ 42). The Act defines “cause” as “an objective factor that impeded [the petitioner’s]
ability to raise a specific claim during his or her initial postconviction proceedings.” 725 ILCS
5/122-1(f) (West 2016). To establish “prejudice,” a petitioner must demonstrate that the claim
not raised in an initial postconviction proceeding “so infected the trial that the resulting
conviction or sentence violated due process.” Id. Our review of the trial court’s denial of leave to
file a successive postconviction petition is de novo. Robinson, 2020 IL 123849, ¶ 39.
¶7 In Miller, the Supreme Court held that the eighth amendment to the United States
Constitution “forbids a sentencing scheme that mandates life in prison without possibility of
parole for juvenile offenders.” Miller, 567 U.S. at 479. Before sentencing a juvenile offender to
life in prison, the sentencing judge must have the opportunity to consider mitigating factors such
as, inter alia, the juvenile’s age, the juvenile’s family and home environment, the effects of
familial or peer pressure, and the possibility of rehabilitation. Miller, 567 U.S. at 477-78.
¶8 In People v. Harris, 2018 IL 121932, ¶¶ 54-61, the supreme court set 18 as the age cutoff
for juvenile sentencing protections in the eighth amendment context. The defendant in this case
was convicted and sentenced for a murder that he committed when he was 18. Consequently, the
decision in Harris foreclosed the defendant’s eighth amendment argument that his age and
sentence qualify him for the protections afforded to juveniles pursuant to the holding in Miller.
¶9 However, the Harris court left open the question of whether a defendant convicted and
sentenced to a de facto life sentence for a crime that was committed when he was 18 years old
could raise an as-applied challenge to his sentence under the Proportionate Penalties Clause of
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the Illinois Constitution. Harris, 2018 IL 121932, ¶ 48. The supreme court held that such a claim
is more appropriately brought in a proceeding under the Act or by means of a petition pursuant to
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)). Id.¶ 10 Assuming for the sake of analysis only that the petition in this case set forth sufficient
facts establishing both cause for and prejudice from failing to raise the claim in an earlier
petition, the petition, nevertheless, fails to allege facts showing how the evolving science on
maturity and brain development that helped form the basis for the Miller decision applies to
defendant’s specific facts and circumstances.
¶ 11 “Young adult defendants are not entitled to a presumption that Miller applies to them.”
People v. Ruiz, 2020 IL App (1st) 163145, ¶ 52. “[U]nder Harris, a young adult defendant must
plead and ultimately prove, that his or her individual characteristics require the application of
Miller.” Id. The petition and accompanying documents must contain sufficient facts to justify
further proceedings. “[T]he defendant must show ‘how the evolving science on maturity and
brain development that helped form the basis for the Miller decision applies to defendant’s
specific facts and circumstances.’ ” Id. ¶ 52 (quoting Harris, 2018 IL 121932, ¶ 46).
¶ 12 Other than alleging that he was 18 years old when he committed the murder for which he
was convicted and sentenced to 50 years’ imprisonment, the successive postconviction petition
that the defendant sought leave to file fails to set forth any individual characteristics which, even
arguably, require that the sentencing protections set forth in Miller should apply to him. Having
failed to allege facts showing that the holding in Miller should apply to his particular
circumstances, the successive postconviction petition that the defendant sought leave to file is
insufficient to support an as-applied challenge to the defendant’s sentence under the
Proportionate Penalties Clause of the Illinois Constitution.
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¶ 13 Based upon the foregoing analysis, we affirm the trial court’s order denying the
defendant leave to file a successive postconviction petition.
¶ 14 Affirmed.
¶ 15 JUSTICE HALL, dissenting:
¶ 16 I respectfully disagree with the majority’s holding in this case.
¶ 17 In this case, defendant sought leave to file the successive pro se postconviction petition at
issue in this appeal on June 28, 2017. In his motion and in the attached petition, defendant
contended that the United States Supreme Court case of Miller v. Alabama, 567 U.S. 460 (2012)
and its progeny demonstrated that his sentence violated both the Eighth Amendment (U.S.
Const., amend. VIII) and the Proportionate Penalties Clause of the Illinois Constitution (Ill.
Const.1970, art. I, § 11), and constituted a de facto life sentence.
¶ 18 In articulating “cause” for why he should be allowed to file the successive petition,
defendant stated in his motion that there was new legal precedent that was not in place at the
time he was sentenced or when he filed his initial postconviction petition in his case. Further,
although defendant never used the word “prejudice”, defendant did argue in the substance of the
proposed petition that he would serve a de facto life sentence without the possibility of parole
until he turned 68 years old; that the sentence was excessive and disproportionate to that of an
adult, that as an 18-year-old; his brain was not sufficiently developed as an adult and he should
be subject to the youth standard; and that the sentence did not take into account any type of
rehabilitation or restoration to useful citizenship. Defendant also contended that his sentence
was unconstitutional, and cited several federal and Illinois cases in support of his position.
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¶ 19 Additionally, on appeal, defendant’s appellate counsel further contended that our
supreme court specifically directed similarly-situated defendants to raise their as-applied state
and federal constitutional Miller challenges in a postconviction petition so that a record may be
developed. See People v. Thompson, 2015 IL 118151, ¶¶ 38-44; People v. Harris, 2018 IL
121932, ¶¶ 45-48.
¶ 20 The Act contemplates the filing of only one petition without leave of court. 725 ILCS
5/122-1(f) (West 2016). Section 122-1(f) unambiguously requires a defendant to obtain leave of
the trial court prior to filing a successive postconviction petition. People v. Smith, 2014 IL
115946, ¶ 33. The trial court may grant leave to file a successive petition only if the petitioner
demonstrates cause for the failure to bring the claim in the initial postconviction proceedings and
that prejudice results from that failure. Id. For purposes of the test, “cause” is defined as some
objective factor external to the defense that prevented counsel from raising the claim in an earlier
proceeding. People v. Pitsonbarger, 205 Ill. 2d 444, 460 (2002). “Prejudice” is shown where
the claimed constitutional error so infected the entire trial that the resulting conviction or
sentence violates due process. Pitsonbarger, 205 Ill. 2d at 464. The denial of a defendant’s
motion for leave to file a successive postconviction petition is reviewed de novo. People v.
Bailey, 2017 IL 121450, ¶ 13.
¶ 21 In this case, just as in the case of similarly situated defendants, the current state of the law
is that Miller and its progeny do not apply to defendants who have reached 18 years or older.
However, as noted above, our supreme court has indicated that proper venue for young adult
offenders (aged 18 to 24) to make the argument that the juvenile sentencing guidelines should
apply to them (including studies that show that young adult minds are not as developed as adult
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minds and that the considerations of youth should apply) is in postconviction proceedings where
a record can be developed. See Thompson, 2015 IL 118151, ¶¶ 38-44; Harris, 2018 IL 121932,
¶¶ 45-48. If the appellate courts continue to deny these offenders leave to file the successive
postconviction petitions in order to even make the argument (not to decide the merits of the
argument), then the defendants remain in the “catch 22” prejudice cycle noted by the court in
People v. Carrasquillo, 2020 IL App (1st) 180534, ¶ 109 (“defendant has shown prejudice by
establishing a ‘catch 22’- without a developed record, he cannot show that his constitutional
claim has merit, and without a meritful claim, he cannot proceed to develop a record.”). As such,
I would find that defendant sufficiently established prejudice based on the substance of his pro
se petition, and grant him leave to file a successive postconviction petition.
¶ 22 To be clear, I do not diminish the seriousness of the offense committed by defendant or
the fact that such offense is subject to an appropriate sentence. Nor do I express any opinion as to
the merits or outcome of defendant’s Miller challenge to his sentence for an offense committed
when he was 18 years old. I would only find that defendant is entitled to utilize postconviction
proceedings to develop the record in order to raise a purported constitutional challenge to his
sentence as contemplated by our supreme court. See Ruiz, 2020 IL App (1st) 163145, ¶ 53;
Johnson, 2020 IL App (1st) 171362, ¶ 26.
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