People v. Searles , 2024 IL App (1st) 210043-U ( 2024 )

2024 IL App (1st) 210043-UNo. 1-21-0043
Order filed March 29, 2024
FIFTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Respondent-Appellee, ) Cook County.
)
v. ) No. 00 CR 17515 (02)
)
JOHN SEARLES, ) Honorable
) William G. Gamboney,
Petitioner-Appellant. ) Judge, presiding.
PRESIDING JUSTICE MITCHELL delivered the judgment of the court.
Justice Mikva concurred in the judgment.
Presiding Justice Oden Johnson dissented with opinion.
ORDER
¶1 Held: Because petitioner John Searles has not established cause and prejudice for his
failure to raise his Miller-based sentencing challenge at an earlier proceeding, the circuit
court’s denial of leave to file a successive post-conviction petition is affirmed.
¶2 Petitioner John Searles challenges the circuit court’s denial of leave to file a successive
post-conviction petition. He argues that new scientific studies regarding brain development in
young adults satisfies the cause and prejudice exception to the bar to successive post-conviction
petitions. The issue on appeal is whether the trial court erred in concluding that Searles had failed
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to overcome this procedural bar. We find that the trial court did not err and that Searles has not
established cause.
¶3 BACKGROUND
¶4 In 2002, petitioner John Searles was convicted of the murder and attempted robbery of
Anthony Leyva. Searles was 20 years old at the time of the offenses. The circuit court sentenced
him to 75 years in prison without good-time credit or the possibility of parole. This court affirmed
on direct appeal. People v. Searles, No. 1-02-2598 (2004) (unpublished order under Supreme Court
Rule 23). Searles then filed his first pro se post-conviction petition on March 9, 2005. In it, he
argued that his trial counsel was ineffective and that the court had erred by requiring Searles to go
to trial with a broken jaw. The petition was dismissed as frivolous and patently without merit. On
appeal, this court again affirmed. People v. Searles, No. 1-05-2203 (2006) (unpublished order
under Supreme Court Rule 23).
¶5 Searles later sought leave to file a successive post-conviction petition arguing that the trial
court had imposed a de facto life sentence without considering his age and attendant characteristics
in violation of the eighth amendment to the United States Constitution and the proportionate
penalties clause of the Illinois Constitution. Ill. Const. 1970, art. 1, §11. The circuit court denied
leave to file. On appeal, this court reversed and remanded to the circuit court for second-stage
proceedings, with one judge dissenting, determining that Searles had satisfied cause and prejudice.
People v. Searles, 2022 IL App (1st) 210043. The Illinois Supreme Court subsequently issued a
supervisory order directing us to vacate our opinion and to reconsider our decision in light of
People v. Moore, 2023 IL 126461. People v. Searles, 468 Ill. Dec. 594 (2023).
¶6 ANALYSIS
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¶7 The Post-Conviction Hearing Act allows an imprisoned person to collaterally challenge his
conviction on state or federal constitutional grounds. 725 ILCS 5/122-1 (West 2022); see also
People v. Hatter, 2021 IL 125981, ¶ 22. The Act provides defendants one post-conviction petition
as a matter of right. 725 ILCS 5/122-1(f). In order to file a successive post-conviction petition, the
defendant must receive leave of court. Id. If a defendant fails to raise an argument in the first
petition, it is generally waived for any subsequent petition. Id. § 5/122-3. However, there are two
exceptions to the bar against successive petitions: actual innocence and cause-and-prejudice.
People v. Taliani, 2021 IL 125891, ¶ 55. To show cause, there must have been “some objective
factor external to the defense [that] impeded counsel’s efforts to raise the claim in an earlier
proceeding.” (Internal quotation marks omitted.) People v. Ortiz, 235 Ill. 2d 319, 329 (2009)
(quoting People v. Pitsonbarger, 205 Ill. 2d 444, 460 (2002)). “Prejudice” occurs when the
constitutional violation “so infected the entire trial that the resulting conviction or sentence violates
due process.” Id. We review de novo a circuit court’s denial of leave to file a successive petition.
People v. Jackson, 2021 IL 124818, ¶ 27.
¶8 Searles argues that the Illinois Supreme Court’s holding in People v. Thompson, 2015 IL
118151, requires reversal. There, on appeal from a section 2-1401 motion for relief from judgment,
the defendant raised for the first time an as-applied Miller-based sentencing challenge to his
mandatory life sentence. Id. ¶¶ 21-25. The supreme court concluded that raising such a challenge
for the first time on appeal was improper but held that “defendant is not necessarily foreclosed
from renewing his as applied challenge in the circuit court” because “the Post-Conviction Hearing
Act *** is expressly designed to resolve constitutional issues ***.” Id. ¶ 44. From this holding,
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Searles argues that the court in Thompson was suggesting that the defendant there was either
capable of satisfying cause-and-prejudice or excused from the analysis.
¶9 Searles reads Thompson too broadly. There, the court indicated only that raising the
sentencing claim for the first time on appeal was improper and that the proper avenue to raise such
a claim would be in a post-conviction petition. Id. Whether Thompson could overcome any
procedural hurdles to bring a successive post-conviction petition was left for the trial court to
decide. Id. Moreover, even if the court in Thompson had determined that the defendant was
excused from cause-and-prejudice, this conclusion would provide little value to Searles because
Thompson’s language permitting “as-applied” Miller-based post-conviction challenges has since
been expressly limited to “mandatory life sentences in initial postconviction petitions.” (Emphases
in original.) People v. Hilliard, 2023 IL 128186, ¶ 27 (quoting People v. Clark, 2023 IL 127273,
¶ 88). Searles’s de facto life sentence was discretionary, and he attempted to raise it in a successive
postconviction petition; therefore, he “must be able to satisfy the cause-and-prejudice test to do
so.” Clark, 2023 IL 127273, ¶ 88.
¶ 10 Searles next contends that he can satisfy cause-and-prejudice because his initial
postconviction petition was filed in 2005, seven years before the United States Supreme Court
handed down Miller v. Alabama, 567 U.S. 460 (2012), and 13 years before the Illinois Supreme
Court decided People v. Harris, 2018 IL 121932. Thus, he claims, he could not have raised these
arguments earlier. In Miller, the United States Supreme Court held that “mandatory life-without-
parole sentences for juveniles violate the Eighth Amendment.” 567 U.S. at 470. Instead of
imposing mandatory sentences, it became incumbent upon courts to consider “an offender’s youth
and attendant characteristics *** before imposing a particular penalty.” Id. at 483. The Miller court
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drew a bright line in defining juveniles as individuals under the age of 18. Id. at 465. In applying
this holding to the proportionate penalties clause of the Illinois Constitution, however, the Illinois
Supreme Court has tacitly endorsed challenges by young adults over the age of 18. Harris, 2018
IL 121932, ¶ 48 (holding that a defendant slightly over 18 years old “was not necessarily foreclosed
from raising” an “as-applied challenge” to his mandatory de facto life sentence); see also
Thompson, 2015 IL 118151, ¶¶ 44.
¶ 11 However, in Moore, the Illinois Supreme Court explained that Miller does not provide
cause for young adults to raise a claim under the proportionate penalties clause because “Miller
does not directly apply to young adults.” 2023 IL 126461, ¶ 40. Thus, the United States Supreme
Court provided Searles with, at best, an analogous fact pattern under the United States Constitution
that could potentially help support a claim that Searles could already have raised under the Illinois
Constitution prior to Miller. See People v. Patterson, 2014 IL 115102, ¶ 97 (“A ruling on a specific
flavor of constitutional claim may not justify a similar ruling brought pursuant to another
constitutional provision.”). Miller did not create a new claim for young adult offenders nor did it
even expand the types of challenges available to postconviction petitioners. For over a century,
Illinois courts have recognized that a defendant’s youth is a relevant factor in sentencing. See
People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 423 (1894) (“There is in the law
of nature, as well as in the law that governs society, a marked distinction between persons of
mature age and those who are minors,—the habits and characters of the latter are presumably, to
a large extent, as yet unformed and unsettled.”). Thus, the fact that Miller arguably gives Searles
a stronger argument today than he had 20 years ago is insufficient to demonstrate cause. People v.
Dorsey, 2021 IL 123010, ¶ 74 (“Miller’s unavailability prior to 2012 at best deprived defendant of
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some helpful support for his state constitutional law claim, which is insufficient to establish cause.”
(Internal quotation marks omitted.)).
¶ 12 Next, Searles argues that he satisfies cause due to the passage of a new parole law in 2019.
The law provides that a person who commits first degree murder while “under 21 years of age ***
[and who] is sentenced on or after June 1, 2019 *** shall be eligible for parole review *** after
serving 20 years or more ***.” 730 ILCS 5/5-4.5-115(b) (West 2022). However, this reasoning
suffers from multiple flaws. First, post-conviction petitioners can only challenge a trial court’s
constitutional errors, not statutory errors. 725 ILCS 5/122-1. To the extent that Searles saw the
statute as providing evidence of “an evolving standard of decency,” the Illinois Supreme Court has
recognized that the statute is simply “a policy change rather than a reflection that the previous
statutory scheme was abhorrent to the community’s moral sense.” Hilliard, 2023 IL 128186, ¶¶
36, 39. Second, even if the statute were a basis for a post-conviction petition, the statute is limited
by its own terms to prospective relief. 730 ILCS 5/5-4.5-115(b) (allowing parole review only if
the defendant is “sentenced on or after June 1, 2019”); see also Hilliard, 2023 IL 128186, ¶ 39
(noting that, for a defendant who was 18 years old at the time of the offense, the parole statute
provided no benefit because “the legislature chose not to make the provision retroactive.”).
¶ 13 Searles also argues that advancements in the understanding of brain development in young
adults provides him with cause. In particular, Searles argues that, since his direct appeal and initial
petition for postconviction relief, the scientific community has concluded “that the human brain is
immature, and not fully developed until an individual reaches his or her mid-20s, and that normal
brain development may be delayed, or even arrested, when an individual suffers acute childhood
trauma.” This argument fails for two reasons.
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¶ 14 First, research into young adult and adolescent brain development prior to Searles’s trial,
direct appeal, and postconviction petition recognized that brain development continues into an
individual’s 20s. See Jay N. Giedd et al., Brain Development during Childhood and Adolescence:
A Longitudinal MRI Study, 2 Nature Neuroscience 861 (1999); Elizabeth R. Sowell et al., Mapping
Continued Brain Growth and Gray Matter Density Reduction in Dorsal Frontal Cortex: Inverse
Relationships during Postadolescent Brain Maturation, 21 J. Neuroscience 8819 (2001); Claudia
Wallis, What Makes Teens Tick, Time (2004). And these studies have been used by legal scholars
to argue that young adults and adolescents are less culpable for their crimes than fully developed
adults for almost as long. See Adam Caine Ortiz, Juvenile Death Penalty: Is It “Cruel and
Unusual” in Light of Contemporary Standards?, 17 Crim. Just. 21 (2003); Lucy C. Ferguson, The
Implications of Developmental Cognitive Research on “Evolving Standards of Decency” and the
Imposition of the Death Penalty on Juveniles, 54 Am. U. L. Rev. 441 (2004). While more recent
studies may provide better evidence for Searles’s argument, those studies do not provide new or
undiscovered evidence that Searles could not have presented earlier.
¶ 15 Second, and relatedly, even if scientists had recently discovered that brain development
continues into young adulthood, such a discovery would not constitute cause because it would only
confirm what Illinois courts already knew. See People v. LaPointe, 2018 IL App (2d) 160903, ¶
59 (“If the acquisition of new scientific knowledge to support an already viable claim were all that
a defendant needed to show in order to raise the claim years late, then the ‘cause’ requirement of
section 122-1(f) would be a weak threshold indeed.”). For newly discovered evidence to constitute
cause, the lack of that evidence must have effectively barred the defendant from raising his claim
at an earlier proceeding.
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¶ 16 The Illinois Supreme Court’s holding in People v. Blalock is instructive on this point.
There, the court explained that cause is satisfied by “a showing that the factual or legal basis for a
claim was not reasonably available to counsel.” (Internal quotation marks omitted.) People v.
Blalock, 2022 IL 126682, ¶ 39. In Blalock, the defendant satisfied cause when he claimed his
confession was coerced but he did not and could not have discovered evidence of a “pattern and
practice of police brutality” before his initial postconviction petition. Id. ¶ 40. The court
emphasized that “evidence of a pattern and practice of police misconduct is part of the factual basis
of a coerced confession claim ***.” Id. ¶ 45. Thus, corroborating evidence “external to the
defense,” is necessary to effectively raise a claim of police misconduct. (Internal quotation marks
omitted.) Id. ¶ 44. And the insidious nature of police abuse makes gathering this evidence
particularly difficult. Id. (quoting People v. Brandon, 2021 IL App (1st) 172411, ¶ 57) (“This
evidence pertains to the conduct of the State’s own agents, toward unknown individuals, during
the investigation of other, usually unrelated, cases. The agents in question *** have every incentive
to remain mum, if not deny everything.”). Accordingly, without corroborating evidence, a
defendant is impeded from even raising a coerced confession claim.
¶ 17 These concerns are absent in a sentencing challenge based on the defendant’s age. The
factual basis for such a challenge is that fully developed adults are different from young adults
who are still developing. See, e.g., People v. Miller, 202 Ill. 2d 328 (2002). This distinction is a
fact that Illinois courts have long recognized. See Bradley, 148 Ill. at 422-23 (recognizing that,
during sentencing, courts may take into account distinctions between “persons of mature age” and
“minor[s] between the ages of 16 and 21 years.”). Thus, unlike in Blalock, Searles did not need
external, corroborating evidence to support his claim before he could raise it. The fact of his youth
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was already apparent, and the fact that his youth placed him on different footing than his adult
counterparts was a “law of nature.” Id. at 423.
¶ 18 Searles’s capability of raising this argument earlier is further evidenced by the fact that
Searles did raise a proportionate penalties argument in the trial court at his sentencing:
“[Defense Counsel]: [W]hat we have is a young man who made a terrible mistake
basically ending someone’s life; that’s a tragedy. But the question I guess becomes is ***
there *** hope for rehabilitation. Under the Illinois Constitution, that is something your
Honor has to consider. I think there is.
***
On the other hand, judge, a hundred or 75 or an extended term sentence to a 22-
year-old man may be throwing away the key on him and *** I think there is some
rehabilitative potential ***.”
Further, Searles argued on direct appeal from his conviction that his sentence was excessive and
“that the trial court failed to take into account his age, lack of extensive criminal background, and
that he had completed his G.E.D. in jail,” and we rejected these arguments. People v. Searles, No.
1-02-2598 (2004) (unpublished order under Supreme Court Rule 23). Thus, any argument that
Searles could not have raised a proportionate penalties argument based on his age earlier is plainly
wrong. Accordingly, the circuit court correctly determined that Searles did not show cause.
Because Searles cannot show cause, there is no need to reach the question of prejudice. The circuit
court did not err in denying Searles leave to file a successive postconviction petition.
¶ 19 CONCLUSION
¶ 20 The judgment of the circuit court of Cook County is affirmed.
¶ 21 Affirmed.
¶ 22 PRESIDING JUSTICE ODEN JOHNSON, dissenting.
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¶ 23 On this appeal, defendant argues that his pro se petition made a prima facie showing that
his 75-year sentence, without the possibility of either good-time credit or parole, for an offense he
committed in 2000 when he was 20 years old, violates the Illinois Constitution’s proportionate
penalties clause as applied to him, in light of his age, his history of mental health issues, and his
exposure to physical abuse and drug use at an early age.
¶ 24 On September 23, 2022, this court reversed the trial court’s denial of leave to file, and we
remanded for second-stage proceedings consistent with our opinion. A year later, on September
27, 2023, our supreme court issued a supervisory order directing us to vacate our judgment, so that
we could consider the effect of the supreme court’s recent opinion in People v. Moore, 2023 IL
126461, and determine if a different result was warranted. I have considered Moore and do not
find that it requires a different result, since I would once again reverse and remand for second-
stage proceedings. Accordingly, I must respectfully dissent and I believe that additional
background facts are necessary to make my point.
¶ 25 BACKGROUND
¶ 26 I. Trial & Direct Appeal
¶ 27 The instant appeal concerns the proportionality of defendant’s sentence. Prior to this
offense, the 20-year old defendant had only one adult conviction, for the relatively minor offense
of defacement to property, and no juvenile record. In pronouncing a lengthy sentence, the trial
court mentioned in particular, “the nature of the offense” which the court found “to be particularly
aggravating,” in that “it was premeditated” and “done pursuant to a plan to rob the victim” and
defendant “armed himself with a particularly gruesome and deadly weapon.” The knife was
described at trial as having a curved blade with spikes on the handle and measuring 12 inches in
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overall length. The trial court relied heavily on the age of the victim, who was 72 years old, as a
particularly aggravating factor; but it did not discuss defendant’s young age or any attributes or
characteristics relating to under 21-year olds.
¶ 28 The nature of the offense was the primary reason given by the trial court for the long
sentence. In sum, the evidence established that the 72-year old victim was married and was also
dating Evelyn Rivera who he had met on a phone chat line. Rivera’s best friend was 19-year old
Vanessa Padin, and Rivera’s boyfriend was 20-year old defendant. The three young friends
talked about scaring Leyva with a knife, so that they could grab a money pouch that Leyva always
carried with him. They talked of using the money to throw a “hotel” party for their friends.
Rivera was the one who spoke to Leyva on the phone and arranged for his visit to Rivera’s home
in the West Lawn neighborhood of Chicago. Rivera also retrieved a knife from her room and
handed it to defendant. When the three friends were in Leyva’s car, defendant, who was sitting
behind the driver, pulled out the knife. The two girls immediately jumped out of the car and ran,
leaving defendant as the only witness as to what happened next in the car. Defendant testified
that things went awry, when the car suddenly jerked back and the knife that defendant was holding
cut Leyva’s neck. After the cut to Leyva’s neck, the car crashed into a gas station and defendant
escaped out of the car door where Padin had previously sat. Padin testified that stabbing was not
part of their plan.
¶ 29 On August 5, 2022, after denying defendant’s posttrial motion for a new trial, the court
proceeded to sentencing. The sentencing range for first degree murder was 20 to 60 years (730
ILCS 5/5-8-1(a)(1)(a) (West 2000)), and the sentencing range for attempted armed robbery was 4
to 15 years (720 ILCS 5/8-4(c)(2), 18-2(b) (West 2000), 730 ILCS 5/5-8-1(a)(4) (West 2000)).
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While the trial court had the authority to impose an extended-term sentence (730 IlCS 5/5-8-2
(West 2000)) because the victim was over 60 years old (730 ILCS 5/5-5-3.2(b)(4)(ii) (West 2000)),
the trial court declined to do so and chose, instead, to consider the victim’s age as an aggravating
factor within the original 20-to-60-year sentencing range for murder.
¶ 30 In aggravation, the State asked the trial court to consider the victim impact statements from
the victim’s wife and daughter. The State agreed that defendant’s prior criminal history was “not
extensive.” As already noted, defendant had only one prior adult conviction for the relatively minor
offense of criminal defacement to property. In addition, a computer search revealed no juvenile
records.
¶ 31 In the presentence investigation report, defendant reported that his father was abusive and,
as a result, defendant slept at night with a knife. His father was a heroin addict who physically
abused his mother for several years prior to their separation. Defendant reported that he had been
hospitalized for a month at age twelve and again for a month at age 14 in a mental hospital. With
respect to the second hospitalization, defendant reported that his mother thought he was suicidal
because he had lost his best friend. Defendant reported that he started smoking marijuana when he
was eleven and that he had used cocaine, acid, PCP and ecstasy. Prior to his incarceration,
defendant used PCP every few days and was under its influence when arrested. He had never
received drug treatment. Defendant described his physical condition as “fair,” reporting that he
suffered from asthma since birth and used an asthma pump on a daily basis. In mitigation,
defendant submitted letters from his grandmother, mother, sister and brother. Defendant received
his GED while in Cook County Jail and expressed remorse for the victim and his family.
¶ 32 The letters that defendant submitted from his family are not in the appellate record. Other
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than to state that he had read the letters, the trial court did not describe the letters, so the record
does not reveal their length, level of detail, or what they said. Unlike the letters in mitigation, the
victim impact statements from Leyva’s wife and daughter are in the record.
¶ 33 Pronouncing sentence, the trial court found:
“I am acutely aware of the nature of the offense as I presided over this trial. And
I have taken into consideration the history and character of defendant.
It is clear and has been proven actually by the jury’s determination that the victim
in this case was over the age of 60. In fact, he was significantly older than that. I find
that obviously to be aggravating. It’s an aggravating factor under the statutory
aggravating factors. In addition, it is a fact that can be used to impose an extended term
sentence with regard to [defendant].
The nature of the offense I also find to be particularly aggravating. I find that it
was premeditated. That it was done pursuant to a plan to rob [the victim]. [Defendant
armed himself with a particularly gruesome and deadly weapon. ***
On the other hand, I have taken into consideration the matters that were brought to
my attention in the letters that I have received from [defendant’s] family and what is
included in the pre-sentence investigation. I also take into account the fact that
[defendant] does not have any significant prior criminal history.
As the result of that, the court has concluded that although it will be within my
authority at this time to impose an extended term sentence with regard to the offense of
first degree murder, I am going to decline to do so.
I will utilize in my considerations, however, the age of the victim as an aggravating
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factor within the original range of sentencing for the offense of first degree murder
I am going to sentence [defendant] to the maximum that I can sentence him for in the
original range for first degree murder.
[Defendant] will be sentenced to 60 years ***.”
The trial court did not discuss defendant’s age.
¶ 34 The court noted that defendant “will serve 100 percent” of the 60-year sentence, and it
imposed an additional 15-year consecutive sentence for the attempt armed robbery. Defense
counsel immediately tendered a motion to reconsider sentence which alleged that defendant’s
sentence was excessive and disparate when compared to the sentences of his co-defendants Rivera
and Padin who received 38 years and 14 years, respectively; and the trial court denied the motion.
¶ 35 On direct appeal, defendant claimed, among other things, that his sentences were excessive
and that the trial court failed to take into account his age, his lack of criminal background and his
completion of a G.E.D. in jail. Finding no abuse of discretion regarding defendant’s sentence,
the appellate court found:
“Prior to sentencing, the trial court considered the letters submitted by defendant’s
family, acknowledged that he did not have any significant prior criminal history, and
reviewed the presentence investigation report which mentioned that he had obtained a
G.E.D. Defendant was also allowed to address the court. During his allocution, he
stated that he was sorry and he felt remorse for the victim and his family. However, the
trial court determined that defendant’s sentences were appropriate after noting that the
victim was significantly over the age of 60, that the crime was premediated and done
pursuant to a plan to rob the victim, and that defendant armed himself with a particularly
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gruesome weapon. Given the considerable discretion accorded to the trial court in
determining the appropriate sentence, and recognizing that defendant was eligible for a
maximum term of 100 years on the murder count, we find no abuse of discretion.” People
v. Searles, No. 1-02-2598, at 11 (Mar. 31, 2004) (unpublished order issued pursuant to
Rule 23).
In support, the appellate court cited People v. Peacock, 324 Ill. App. 3d 749 (2001), in which the
court found no abuse of discretion in sentencing a 17-year old with no criminal background to 110
years for the murder and car-jacking of a 60-year old victim. Searles, No. 1-02-2598, at 11.
¶ 36 II. Initial Postconviction Petition
¶ 37 In defendant’s initial pro se postconviction petition, filed on March 9, 2005, defendant
raised a number of claims, including that his trial counsel was ineffective for failing to raise the
issue of defendant’s mental health and that the trial court erred when it forced defendant to go to
trial even though defendant had a broken jaw. The trial judge, who was the same trial judge who
had presided over defendant’s original trial, dismissed the petition as frivolous and patently
without merit on March 18, 2005.
¶ 38 On August 15, 2006, the appellate court affirmed the dismissal. People v. Searles, No. 1-
05-2203 (Aug. 15, 2006) (unpublished order pursuant to Rule 23). In the order affirming the
dismissal, the court noted that defendant claimed that he had informed his trial counsel that he had
been placed on a number of different medications due to mental disorders, but his counsel told him
not to worry about it and avoid the medication if possible. Defendant claimed that his trial
counsel was ineffective for failing to raise the issue of defendant’s competence to stand trial and
to move for a competency hearing and that his appellate counsel was ineffective for failing to raise
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on direct appeal his fitness to stand trial. Defendant’s petition claimed that his allegations were
supported by evidence of his “ ‘long history of mental illness as evinced by his frequent
hospitalizations beginning in childhood.’ ” Searles, No. 1-05-2203, at 2-3.
¶ 39 The appellate court found that defendant’s psychological problems as detailed in the
presentence report “related solely to his childhood problems,” and that there was no indication that
these problems had continued into adulthood. Searles, No. 1-05-2203, at 6. Although
defendant claimed that he was on different medications due to different mental disorders, the
appellate court found that he did not provide “specificity” or evidence that it affected his ability to
understand the proceedings against him or participate in his defense. Searles, No. 1-05-2203, at 6.
As a result, the court did not find this claim persuasive.
¶ 40 III. The Instant Petition
¶ 41 On October 23, 2019, defendant filed pro se: (1) a motion for appointment of counsel; (2)
a petition for leave to file a successive postconviction petition; (3) a postconviction petition; and
(4) a supporting memo. Defendant alleged that, although he was 20 years old at the time of the
offense, he had the mental capacity of an adolescent, in light of his documented history of mental
illness and drug abuse. Defendant alleged that the trial court imposed sentence without any
consideration of his age, impetuosity, level of maturity, susceptibility to peer pressure or potential
for rehabilitation. Defendant alleged that, without any eligibility for parole or good-time credit, his
earliest possible release date was at age 87, if he lived that long. Defendant claimed that his
sentence, in light of the truth-in-sentencing laws requiring him to serve his entire sentence, violated
both the proportionality clause of the Illinois Constitution and the eighth amendment of the United
States Constitution, as applied to him.
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¶ 42 In support, he cited precedent and statute decided or enacted only a few months earlier,
including: (1) People v. Othman, 2019 IL App (1st) 150823, ¶ 90, where this court found that
the Truth in Sentencing Act (735 ILCS 5/3-6-3(a)(2)(i) (West 2006)) was unconstitutional as
applied to juvenile defendants; (2) People v. Buffer, 2019 IL 122327, ¶ 41, where the Illinois
Supreme Court found that a prison sentence of more than 40 years imposed on a juvenile
constituted a de facto life sentence; and (3) an under-21 parole statute which provided, in relevant
part, that “[a] person under 21 years of age at the time of the commission of first degree murder
who is sentenced on or after June 1, 2019 (the effective date of Public Act 100-1182) shall be
eligible for parole review by the Prison Review Board after serving 20 years or more of his or her
sentence or sentences, except for those subject to a term of natural life imprisonment.” 730 ILCS
5/5-4.5-115(b) (West 2020).
¶ 43 Defendant sought “some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation” and a “hearing in accordance with new case/and state laws.”
¶ 44 The first hearing on his petition, for which we have a transcript, occurred on February 21,
2020. An ASA appeared on behalf of the State, and the transcript notes that “[n]one appeared on
behalf of the Defendant.” The trial judge stated that he had no idea why the matter was here and
asked the State if it knew, and the ASA offered to order the “State file.” On April 3, 2020, an
ASA was again present when the matter was continued. On October 30, 2020, over a year after
defendant’s motion was filed, the trial court indicated in a Zoom proceeding, with an ASA present,
that it was denying defendant’s motion for leave, for reasons indicated in a written order.
¶ 45 In its written order, dated October 30, 2020, the trial court observed:
“[Defendant] merely reports his age, his lack of a prior criminal background, and that he
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‘suffered through parental neglect and physical abuse as a child’ and ‘grew up in a crime
and gang infested neighborhood.’ [Defendant] makes a conclusory statement that he ‘had
the mental and maturity level of a child.’ ”
The trial court found defendant’s sentencing claims unpersuasive.
¶ 46 On March 18, 2021, this court granted defendant’s motion for leave to file a late notice of
appeal from the trial court’s October 30, 2020, order and appointed the State Appellate Defender
to represent defendant.
¶ 47 ANALYSIS
¶ 48 I. Prima Facie Showing
¶ 49 Prior to commencing a successive proceeding, a defendant must obtain leave of court to
file his or her petition. People v. Robinson, 2020 IL 123849, ¶ 43. At this threshold stage, when a
defendant seeks leave to file, he or she is required to demonstrate only “a prima facie showing of
cause and prejudice.” People v. Bailey, 2017 IL 121450, ¶ 24. If leave to file is granted, the petition
will be docketed for second-stage proceedings. People v. Sanders, 2016 IL 118123, ¶ 28. Thus, at
this early leave-to-file stage, the petition does not have to make the “substantial showing” that will
later be required at a second-stage hearing after counsel is appointed. Robinson, 2020 IL 123849,
¶ 58. “[L]eave of court to file a successive postconviction petition should be denied only where it
is clear from a review of the petition and attached documentation that, as a matter of law, the
petitioner cannot set forth a colorable claim ***.” Sanders, 2016 IL 118123, ¶ 24.
¶ 50 I find it troubling that the State was present at hearings at which the trial court considered
and ultimately denied defendant’s motion for leave to file, and that, when the trial court expressed
confusion about what the case was about, the State offered to provide its own file—and may have
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in fact provided it, for all we know.1 Our supreme court has found it “improper for the State to
provide input to the court before the court has granted a defendant’s motion for leave to file a
successive petition.” People v. Bailey, 2017 IL 121450, ¶ 20. The motion for leave to file is directed
to the court alone, and it is the court alone who should decide the preliminary legal question of
whether the defendant made the required cause-and-prejudice showing. Bailey, 2017 IL 121450,
¶ 25. 2 Although input or participation by the State, if any, prior to the trial court’s denial was
improper, “the relief” remains the same whether or not this error occurred. Bailey, 2017 IL 121450,
¶ 41. As a court of review, and “[i]n the interest of judicial economy,” we review the motion
“ourselves” to determine whether there is “need for remand.” Bailey, 2017 IL 121450, ¶ 42.
¶ 51 It is also troubling that key parts of the record, such as defendant’s videotaped statement,
are missing, leaving both this court and the trial court to rely on a one-paragraph summary in an
unpublished order that contains confusing ellipses and brackets. The letters from defendant’s
family, which were submitted by him in mitigation at sentencing, are also not in the appellate
record. As a result, almost the entire case that defendant made for mitigation at sentencing is simply
not before us. One advantage of a remand for second-stage proceedings is the appointment of an
attorney in the trial court who can, hopefully, provide a more complete record before the next step
1
While ASAs may be routinely present in criminal courtrooms, the denial here occurred
in a Zoom proceeding during the pandemic, hence, “routine” is not an explanation for the ASA’s
presence.
2
Section 3-9005 of the Counties Code (55 ILCS 5/3-9005(a)(7) (West 2020)) permits
an ASA to “give the State’s Attorney’s opinion *** to any county officer *** upon any question
** relating to any criminal or other matter, in which the people or the county may be concerned.”
However, the question of whether to grant or deny leave to file a petition is not a matter in which
“the people,” ie. the State, should be concerned.
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in the process. 3
¶ 52 II. Cause and Prejudice
¶ 53 To determine whether defendant made a prima facie showing, this court reviews
defendant’s petition de novo. Moore, 2023 IL 126461, ¶ 31; Bailey, 2017 IL 121450, ¶ 13. De novo
review means that we do the same analysis that a trial judge would have done when reviewing
defendant’s petition People v. Meneses, 2022 IL App (1st) 191247-B, ¶ 16.
¶ 54 As the majority notes, under the cause-and-prejudice test, a defendant must show both
(1) cause for his or her failure to raise the claim in an earlier proceeding and (2) prejudice
stemming from his or her failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People v.
Pitsonbarger, 205 Ill. 2d 444, 459 (2002)); Pitsonbarger, 205 Ill. 2d at 460 (a showing that a
factual or legal basis for the claim was not reasonably available constitutes cause). In the case at
bar, I find defendant has made a prima facie showing of both.
¶ 55 First, as to cause, defendant could not have argued that his sentence was disproportionate,
in light of the new parole law for under-21-year-olds, prior to its passage into law in 2019. The
law provides that “[a] person under 21 years of age at the time of the commission of first degree
murder who is sentenced on or after June 1, 2019 *** shall be eligible for parole review by the
Prisoner Review Board after serving 20 years or more of his or her sentence or sentences.” 730
ILCS 5/5-4.5-115(b) (West 2020). Even if he had been sentenced on or after the effective date,
3
There was no index to most of the appellate record, which was also out of chronological
order. Illinois Supreme Court Rule 342 requires the appellant to provide an index to the record that
states the nature of each document and “the names of all witnesses and the pages on which their
direct examination, cross examination, and redirect examination begins.” Ill. S. Ct. R. 342 (eff.
Oct. 1, 2019). “Illinois Supreme Court Rules *** are mandatory, not optional.” Denton v.
Univeral Am-Can, Ltd., 2019 IL App (1st) 181525, ¶ 23.
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defendant would not have been eligible for earlier consideration under the new law, since he had
not served 20 years or more of his sentence until sometime in 2020.
¶ 56 The sentencing transcript establishes that, while the sentencing court focused on the age of
the victim, it did not consider any characteristics or attributes of under-21-year-olds, such as their
lack of maturity or susceptibility to peer pressure. The trial transcript itself provides evidence of
peer pressure and juvenile thinking. The three youthful offenders wanted to scare an adult into
giving them money so they could throw a party. As Padin, the government witness, testified, a
stabbing was never part of their plan. Without the prodding and pressure by the “girlfriend,” this
plan would not have been hatched. It was her knife; she gave it to him; she wanted the party; and
she arranged the visit and ride by Leyva. When Rivera initially jumped out of the car, both
defendant and Padin were trapped in the back seat as the result of child safety locks, but Rivera
opened the door for only Padin. Defendant had literally no way out, unless and until the car
stopped. Defendant had no juvenile record and one adult conviction for the minor offense of
defacing property. His case for mitigation was supported by a number of letters, which neither
the court below that ruled on his motion nor this court has had the opportunity to read. 4 The record
also lacks a transcript or video of his statement. If this court is to be more than a rubber stamp, we
need a record to review. Thus, defendant has made a prima facie showing for cause and the need
for a remand, which will permit the parties and the court to address the holes and troubling aspects
of this case.
¶ 57 As to prejudice, the sentencing transcript establishes that the sentencing court did not
4
Defendant’s pro se pleading alleged that he had “the mental and maturity level of a child,
who suffered from [sic] through parental neglect and physical abuse as a child.”
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No. 1-21-0043
consider defendant’s potential for rehabilitation. The proportionate penalties clause of our
constitution provides 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. This constitutional provision requires the balancing of the twin goals of retribution and
rehabilitation, which requires a careful consideration of all the factors in aggravation and
mitigation, including defendant’s age and mental health. People v. Quintana, 332 Ill. App. 3d 96,
109 (2002). Like the eighth amendment, the proportionate penalties clause of the Illinois
constitution embodies our evolving standard of decency. People v. Miller, 202 Ill. 2d 328, 339
(2002) (“as our society evolves, so too do our concepts of elemental decency and fairness which
shape the ‘moral sense’ of the community” underlying both the proportionate penalties clause and
the eighth amendment).
¶ 58 However, “the framers” of our state constitution “intended” to “provide a limitation on
penalties beyond those afforded by the eighth amendment” and to add the objective of restoring
the offender to useful citizenship.” People v. Clemons, 2012 IL 107821, ¶ 39; People v. Fernandez,
2014 IL App (1st) 120508, ¶ 63 (“the Illinois Constitution places greater restrictions on criminal
sentencing than the eighth amendment’s prohibition”); Ill. Const. 1970, art I, § 11 (sentences must
be determined “with the objective of restoring the offender to useful citizenship”). Thus, the
proportionate penalties clause goes further than the eighth amendment in offering protection
against both oppressive penalties and disproportionality in the law. Under the broader protection
provided by our state’s own clause, defendant has made a prima facie showing that, as applied to
him, denying him some meaningful opportunity to demonstrate his potential for rehabilitation,
while granting that same opportunity to other similarly situated under-21-year-olds who committed
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No. 1-21-0043
the same exact offense at a later date, may run afoul of our proportionate penalties clause. See
People v. Hillilard, 2023 IL 128186, ¶ 29 (“[t]he Illinois Constitution does not limit a proportionate
penalties challenge to just juveniles” or individuals with mandatory life sentences).
¶ 59 III. Moore
¶ 60 The supreme court specifically directed us to consider Moore to determine if a different
result was warranted in light of it. For the following reasons, I find that Moore does not alter the
outcome in this case.
¶ 61 In Moore, two defendants were sentenced to life without parole for separate murders that
they committed when they were 19 years old. Both defendants appealed orders that denied them
leave to file successive postconviction petitions that challenged their life-without-parole sentences.
On appeal, the supreme court affirmed the trial court’s orders. Moore, 2023 IL 126461, ¶ 1.
¶ 62 Moore is not apposite to our case for a number of reasons. First, in Moore, both defendants
claimed, in their motions for leave to file successive postconviction petitions, that it was the
decision in Miller, 567 U.S. 460, that gave them the required cause. Moore, 2023 IL 126461, ¶
36 (both defendants “claimed the decision in Miller, 567 U.S. 460, gave them cause for raising
new constitutional challenges to their sentence”"). In contrast, in the petition here, defendant
claims that his cause stems from new statutory law and new science.
¶ 63 Second, our supreme court rejected the Miller claim, finding that, since Miller concerned
only juveniles, “the decision in Miller itself” did not change the law governing young adults.
Moore, 2023 IL 126461, ¶ 38. “Because Miller did not change the law applicable to discretionary
life sentences imposed on young adults, including the sentences imposed on both [defendants],
Miller did not give cause to raise new challenges to their sentences.” Moore, 2023 IL 126461, ¶
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No. 1-21-0043
38. For this reason, the Moore court found cause lacking under both the eighth amendment and the
proportionate penalties clause. Moore, 2023 IL 126461, ¶¶ 38, 40 In contrast, the new law and
science cited by defendant here is directed specifically toward young adults. People v. Blalock,
2022 IL 126682, ¶¶ 41-46 (a claim may be raised in a successive petition based on new facts);
Pitsonbarger, 205 Ill. 2d at 460 (a showing that a factual or legal basis for a claim was not
reasonably available constitutes cause).
¶ 64 Third, the supreme court in Moore found: “The evidence and arguments raised at the
sentencing hearings for both [defendants] show the parties knew Illinois law recognized the special
status of young adults, especially those subject to adverse influences, for purposes of applying the
principles of the proportionate penalties clause.” Moore, 2023 IL 126461, ¶ 42. The opposite was
true at defendant’s hearing. As we already discussed above in paragraphs 74 and 75, the sentencing
transcript establishes that, while the sentencing court focused on the age of the victim, it did not
consider any characteristics or attributes of under-21-year-olds, such as their lack of maturity or
susceptibility to peer pressure, and it did not consider defendant’s potential for rehabilitation.
¶ 65 Fourth, the new parole statute that defendant cites does not apply to the sentences that were
at issue in Moore, namely, life-without-parole sentences. The new parole statute that defendant
cited in his petition provides, in relevant part, that “[a] person under 21 years of age at the time of
the commission” of the offense—like defendant— “shall be eligible for parole review *** after
serving 20 years or more” of his sentence, “except for those subject to a term of natural life” –in
other words—except for the defendants like the defendants in Moore. 730 ILCS 5/5-4.5-115(h)
(West 2020). As a result, the same claim raised by defendant was not a claim available to the
defendants in Moore. Last but not least, the Moore court limited its holding to a consideration of
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No. 1-21-0043
cause only. Moore, 2023 IL 126461, ¶ 42 (“we do not address the issue of whether [defendants]
stated a prima facie showing of prejudice”). Thus, Moore does not affect our analysis of prejudice.
¶ 66 If anything, the supreme court’s emphasis in Moore on the recognition by Illinois law of
“the special status of young adults, especially those subject to adverse influence” reinforces our
prior conclusion. Moore, 2023 IL 126461, ¶ 42. As our supreme court emphasized in an even
more recent case, “[t]he Illinois Constitution does not limit a proportionate penalties challenge to
just juveniles” or to individuals with mandatory life sentences. Hilliard, 2023 IL 128186, ¶ 29.
¶ 67 We permitted supplemental briefing, and the State attached to its brief two appellate court
cases for our consideration. People v. Vega, 2023 IL App (1st) 200661-U; People v. Bennett, 2023
IL App (1st) 220805-U. Both are Rule 23 orders and, thus, may not be cited by any party as
precedent except in the limited circumstances allowed under Rule 23(e)(1). Ill. S. Ct. R. 23(e)(1)
(eff. Feb. 1, 2023). Both affirmed a trial court’s denial of leave to file the successive
postconviction petition of a young adult, primarily on the ground that “Miller does not provide a
young adult offender with cause to challenge his sentence in a successive postconviction petition
under the proportionate penalties cause”—a fact we can all agree on. Vega, 2023 IL App (1st)
200661-U, ¶ 54; Bennett, 2023 IL App (1st) 220805-U, ¶ 11. Both Bennett and Vega quoted the
portion of Moore in which the supreme court found that the sentencing transcripts established that
the parties and the court all knew and understood the special status of young adults under Illinois
law, way back at sentencing, and both cases noted that the sentencing court in their cases had,
similarly, considered the mitigating aspects of youth and other factors at sentencing. Bennett, 2023
IL App (1st) 220805-U, ¶¶ 12, 14; Vega, 2023 IL App (1st) 200661-U, ¶¶ 18-19, 47. By contrast,
this same conclusion simply cannot be made upon a review of the sentencing transcript before us.
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No. 1-21-0043
In addition, the offenses in both Bennett and Vega were gang executions by firearm. Bennett, 2023
IL App (1st) 220805-U, ¶ 4; Vega, 2023 IL App (1st) 200661-U, ¶ 19 (the sentencing court
described the shooting as an “ ‘execution’ “ and found that the defendant was “ ‘a danger in this
particular community’ ”). Shooting in a public place is a fact noted by our supreme court as
particularly egregious due to its potential for wider injury. Hilliard, 2023 IL 128186, ¶¶ 22, 34.
Again, this is a fact simply not present in the record before us.
¶ 68 Although neither the supreme court in its supervisory order nor the parties asked us to
consider the subsequent Hilliard case, 5 we find that it also does not require a different result here.
In Hilliard, the supreme court held that a mandatory firearm enhancement, as applied to a young
adult such that the resulting sentence was less than a de facto life sentence, did not shock the
conscience. Hilliard, 2023 IL 128186, ¶¶ 27, 34, 40. 6 The court observed that a statute may violate
the proportionate penalties clause if its penalty is either harsher than a sentence for an offense with
the same elements or so cruel as to shock the conscience. Hilliard, 2023 IL 128186, ¶ 20. In
5
The supreme court’s supervisory order in this case was issued on September 27, 2021,
approximately two months before the Hillard case was decided on November 30, 2023. Hillard,
2023 IL 128186. Although we permitted another round of supplemental briefing after the
supervisory order, and the parties’ initial briefs were due after Hillard was decided, neither one
mentioned it. Any argument not made in an appellant or appellee’s initial brief is forfeited and
may not be raised later in a reply brief or at oral argument. Thus, any arguments that the parties
could have made based on Hillard were forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points
not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition
for rehearing.”).
6
The court stressed and repeated the fact that the Hillard defendant did not receive a de
facto life sentence. For example, the court stated: “even with the discretionary sentence for murder
added to the enhancement, defendant’s total sentence was 40 years, less than what we have defined
as a de facto life sentence.” Hillard, 2023 IL 128186, ¶ 27. The court repeated: “defendant was an
adult who received a partially discretionary sentence, and his total sentence did not amount to a
life sentence.” Hillard, 2023 IL 128186, ¶ 34.
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No. 1-21-0043
Hilliard, the defendant argued only the latter. Hillard, 2023 IL 128186, ¶ 20. In support of his
shock-the-conscience argument, defendant argued that comments by the legislators who enacted
the under-21 parole-review law show that mandatory penalties for young adults now shock the
conscience. Hilliard, 2023 IL 128186, ¶ 36. In dicta, the court stated that the legislature’s decision
not to apply the law retroactively showed they were not shocked and that it was instead a new
policy decision. Hilliard, 2023 IL 128186, ¶ 39. In the end, the supreme court carefully considered
the defendant’s history and record and found that his less-than de facto life sentence was not
shocking. Hilliard, 2023 IL 128186, ¶ 40. 7 By contrast, in the case at bar, the 20-year old
defendant, who had no record to speak of, received 75 years, which was a life sentence, and then
some. 8
¶ 69 CONCLUSION
¶ 70 For all the foregoing reasons, I would reverse and remand for second-stage proceedings
consistent with this opinion. I find that the supreme court’s recent decisions in Moore and Hilliard
further support our prior decision by emphasizing the special status of young adults under Illinois
law (Moore, 2023 IL 126461, ¶ 42) and that an offender does not have to be a juvenile to raise a
proportionate penalties challenge (Hilliard, 2023 IL 128186, ¶ 29). In the case at bar, where a 20-
7
In reaching this conclusion, the court declined to consider any arguments about mental
health, since mental-health allegations were not in the petition. Hillard, 2023 IL 128186, ¶ 32. By
contrast, in the case at bar, defendant’s petition alleges mental health issues.
8
Further distinguishing Hillard is the fact that the supreme court there was considering
the constitutionality of mandatory firearm enhancements, a subject not at issue here. Hillard, 2023
IL 128186, ¶ 22. In affirming the sentence before it, the court observed “that the presence of
firearms during an offense extends the danger to innocent bystanders [citation], and here defendant
shot at [the victim] in a public housing complex.” Hillard, 2023 IL 128186, ¶ 34. By contrast, in
the case at bar, no firearm was involved, and the offense occurred in a closed and private space.
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No. 1-21-0043
year old with no possibility for parole will first be eligible for release when he is well over eighty,
if he lives that long; where the record does not indicate a concern for his rehabilitative potential
and return to useful citizenship as our constitution requires; where other similarly situated 20-year
olds will receive an opportunity to show their rehabilitative potential; where he has alleged mental
health issues that were not at issue in Moore; where he had no criminal record to speak of; and
where no crime would have been committed but for his codefendants; I find that this pro se
defendant has met the very low threshold needed for leave to file and to have an attorney review
and shape his allegations into more legally articulate claims. Further, the appointment of counsel
will, hopefully, redress the troubling aspects of this case, such as the absence of the mitigation
evidence in the record before us and the apparent provision of the State’s file in the proceeding
below which, whether routine or not, should not have happened. Bailey, 2017 IL 121450, ¶ 20 (it
is “improper for the State to provide input to the court before the court has granted a defendant’s
motion for leave to file a successive petition”). If our proportionate penalties clause is to remain
alive and well, and if Moore and Hilliard both left open a door for some successive petitions, as
they appear to have done, then some petitions must be able to clear the very low threshold of leave
to file, and I find that this one does, for all the reasons noted above.
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