People v. Glenn , 2021 IL App (1st) 172707-U ( 2021 )

2021 IL App (1st) 172707-UTHIRD DIVISION
June 23, 2021
No. 1-17-2707
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
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. ) No. 83 C 3503
)
HERSCHEL GLENN, ) Honorable Thomas Hennelly,
) Judge, presiding
Defendant-Appellant. )
JUSTICE ELLIS delivered the judgment of the court.
Justices McBride and Burke concurred in the judgment.
ORDER
¶1 Held: Affirmed. Successive post-conviction properly dismissed. Defendant could not
state claim for violation of eight amendment or proportionate penalties clause of
Illinois Constitution.
¶2 On May 8, 1982, defendant Herschel Glenn, a 24-year-old policeman, murdered James
Wright and sexually assault and murdered Lillian Final. The bodies were discovered in a forest
preserve overlapping Kane and Cook Counties; Wright’s body was found in Kane County,
Final’s in Cook. Glenn was tried and convicted for the Wright murder in the circuit court of
Kane County and received a 70-year sentence. For the sexual assault and murder of Final, Glenn
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was tried in the circuit court of Cook County, convicted, and sentenced to 30 years for the sexual
assault and life imprisonment for the murder. Glenn’s convictions in both cases were affirmed on
direct appeal. People v. Glenn, 233 Ill. App. 3d 666 (1992) (affirming Cook County conviction);
People v. Glenn, 137 Ill. App. 3d 803 (1987) (Kane County conviction).
¶3 In December 2016, Glenn filed a motion for leave to file a successive postconviction
petition. Glenn argued that the life sentence he received for killing Final violated his rights under
the eighth amendment as interpreted by the United States Supreme Court in Miller v. Alabama,
567 U.S. 460 (2012) and the proportionate penalties clause of the Illinois Constitution. The
circuit court denied Glenn’s motion, and he appealed. We affirm.
¶4 Generally, the Post-Conviction Hearing Act permits the filing of only one postconviction
petition. 725 ILCS 5/122-1(f) (West 2016). A prisoner may file a successive postconviction
petition, but only with leave of court, which may be granted only upon a showing of “cause for
[the prisoner’s] failure to bring the claim in [the prisoner’s] initial postconviction proceedings
and prejudice result[ing] from that failure.” Id.¶5 To establish cause, the prisoner must “identify[] an objective factor that impeded [the
prisoner’s] ability to raise a specific claim during [the prisoner’s] initial postconviction
proceedings.” Id. To establish prejudice, the prisoner must “demonstrate[e] that the claim not
raised during [the prisoner’s] initial post-conviction proceedings so infected the trial that the
resulting conviction or sentence violated due process.” Id. This so-called “cause and prejudice”
test “involves a higher standard than the first-stage frivolous or patently without merit standard
that is set forth in section 122–2.1(a)(2) of the Act.” People v. Smith, 2014 IL 115946, ¶ 35.
“[L]eave of court to file a successive postconviction petition should be denied when it is clear,
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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 petition with
supporting documentation is insufficient to justify further proceedings.” (Emphasis added.) Id.¶6 Here, the circuit court denied Glenn’s motion for leave based, among other things, on its
determination that Glenn’s proposed eighth amendment and proportionate penalties clause
arguments failed as a matter of law. We agree with that determination.
¶7 We start with the eighth amendment claim. The eighth amendment bars the government
from imposing “cruel and unusual punishments.” U.S. Const., amd, VII. In Miller, 560 U.S. at
479, the United States Supreme Court held that the Eighth Amendment categorically bars the
imposition of mandatory life without parole sentences against juvenile defendants convicted of
murder. In People v. Davis, 2014 IL 115595, ¶ 42, our supreme court held that Miller applied
retroactively to cases on collateral review. The United States Supreme Court held likewise in
Montgomery v. Louisiana, 577 U.S. 190, 212 (2016).
¶8 In People v. Holman, 2017 IL 120655, ¶ 40, our supreme court expanded Miller’s
holding to cover discretionary life sentences. The court found that “Miller and Montgomery send
an unequivocal message: Life sentences, whether mandatory or discretionary, for juvenile
defendants are disproportionate and violate the eighth amendment, unless the trial court
considers youth and its attendant characteristics.” Id. Thus, the supreme court summarized in
People v. Buffer, 2019 IL 122327, ¶ 27, “to prevail on a claim based on Miller and its progeny, a
defendant sentenced for an offense committed while a juvenile must show that (1) the defendant
was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the
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sentencing court failed to consider youth and its attendant characteristics in imposing the
sentence.” (Emphasis added.)
¶9 But Glenn was not a juvenile when he committed these crimes. He was 24. Miller, by its
own terms, only applies to offenders who committed their offenses when they were juveniles,
i.e., before they turned 18, and our supreme court, at least thus far, has followed that limitation.
See Miller, 560 U.S. at 479 (“We therefore hold that the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile offenders.”
(Emphasis added.)); Buffer, 2019 IL 122327, ¶ 27; People v. Harris, 2018 IL 121932, ¶ 61
(“claims for extending Miller to offenders 18 years of age or older have been repeatedly
rejected.”).
¶ 10 As Glenn was 24 years old when he sexually assaulted and murdered Final, he cannot
avail himself of Miller’s protections. See People v. Benford, 2021 IL App (1st) 181237, ¶ 12
(affirming order denying leave to file successive post-conviction petition seeking to assert a
Miller claim, as petitioner was 21 years old when he committed murder).
¶ 11 That leaves Glenn’s proposed proportionate penalties clause claim. The proportionate
penalties clause states in relevant part, “All 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. We ask whether “a defendant’s sentence is cruel, degrading, or so
wholly disproportionate to the offense so as to shock the moral conscience of the community.”
Benford, 2021 IL App (1st) 181237, ¶ 12.
¶ 12 Relying on our decisions in People v. House, 2019 IL App (1st) 110580-B, appeal
allowed, 140 N.E.3d 231 (2020), and People v. Cordell Williams, 2018 IL App (1st) 151373,
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vacated, 111 N.E.3d 965 (2018), Glenn argues that “a Miller-based proportionate penalties post-
conviction petition claim can exist if the petitioner was in his mid-20s at the time of the offense.”
As the Williams decision was vacated in a supervisory order by our supreme court, we cannot
look to that decision. Yet even if we did, along with our decision in House, which is currently
under review by our supreme court, we could not agree with defendant’s position.
¶ 13 Glenn is correct that, in both House and Cordell Williams, we held that de facto life
sentences imposed on offenders who were 19 years old at the time of the offense violated the
proportionate penalties clause. See House, 2019 IL App (1st) 110580-B, ¶ 46; Cordell Williams,
2018 IL App (1st) 151373, ¶¶ 20-21. But House and Cordell Williams share something in
common that is wholly absent here, and it makes all the difference in the world: the defendants in
House and Cordell Williams never fired a single shot or materially participated in the planning of
the crimes; their convictions were based on the legal doctrine of accountability.
¶ 14 In House, the defendant did not actually participate in any killing—that is, he did not
actually perform an act, such as firing a gun, that brought about someone’s death. There was no
evidence that the defendant even helped plan the killing. Instead, the defendant in House merely
“took orders from higher ranking” gang members and “acted as a lookout.” House, 2019 IL App
(1st) 110580-B, ¶ 46. Likewise, in Cordell Williams, 2018 IL App (1st) 151373, ¶ 3, the
defendant received a mandatory life sentence after he was convicted of two counts of first-degree
murder in which he did two things: he opened the trunk so that the eventual shooter, David
Evans, could retrieve a gun, and he drove Evans and others away afterward.
¶ 15 We explained that those unique facts—offenders who, if not juveniles, were nonetheless
youthful, and whose level of participation in the murder did not rise nearly to the level of
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principal actor—brought both cases within the ambit of our supreme court’s ruling in People v.
Leon Miller, 202 Ill. 2d 328 (2002). See House, 2019 IL App (1st) 110580-B, ¶ 46; Cordell
Williams, 2018 IL App (1st) 151373, ¶ 24.
¶ 16 In Leon Miller, 202 Ill. 2d at 330, a 15-year-old defendant was convicted of two counts of
first-degree murder based on a theory of accountability and sentenced to a mandatory term of life
imprisonment. The evidence showed that the defendant had only a single minute to contemplate
whether to participate in the crime, and his role in the offense was limited to him serving as a
look-out while the actual shooter carried out the murder. Id. at 330-31. And when the shooting
began, the defendant “ran to his girlfriend’s house.” Id. at 331. Based on those facts, our supreme
court held that the defendant’s mandatory life sentence violated the proportionate penalties
clause. The court explained that
“a mandatory sentence of natural life in prison with no possibility of parole grossly
distorts the factual realities of the case and does not accurately represent defendant’s
personal culpability such that it shocks the moral sense of the community. This moral
sense is particularly true, as in the case before us, where a 15–year–old with one minute
to contemplate his decision to participate in the incident and stood as a lookout during the
shooting, but never handled a gun, is subject to life imprisonment with no possibility of
parole—the same sentence applicable to the actual shooter.” Id. at 341.
¶ 17 In subsequent decisions, the supreme court has explained that its decision in Leon Miller
was based on a “rare convergence of several factors”—namely, the defendant’s status as a
juvenile, the fact that he was convicted based on an accountability theory without ever firing a
shot, and the fact that he was subjected to a mandatory sentencing scheme that precluded the
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court from considering his “age or extent of participation in the crime.” People v. Huddleston,
212 Ill. 2d 107, 131 (2004).
¶ 18 It is likewise true, as we recently recognized, that “[o]ur supreme court has suggested that
life sentences for ‘emerging adults’ may violate the proportionate penalties clause ***.” Benford,
2021 IL App (1st) 181237, ¶ 12 (citing People v. Harris, 2018 IL 121932, ¶ 40). And that is true
even for offenders who were principals.
¶ 19 But that development in the law is ultimately no help to Glenn, because as case law
shows, the term “emerging adults” means offenders who committed their crimes when they were
between 18 and 21 years old. See People v. Franklin, 2020 IL App (1st) 171628, ¶ 71. The
General Assembly has taken the same view. The Juvenile Court Act of 1987 defines “minor” as
“a person under the age of 21 years subject to this Act,” and it defines “adult” as “a person 21
years of age or older.” See 705 ILCS 405/1-3(10), 405/5-105(10), and (705 ILCS 405/1-3(2)
(West 2018)).
¶ 20 Recent legislation underscores that point. As we explained in Franklin, 2020 IL App (1st)
171628, ¶ 62, in 2019, the General Assembly “changed the law to make a person convicted of
first degree murder eligible for parole after serving only 20 years, if he or she was under 21 years
old at the time of the offense and was sentenced after the law took effect.” Id. (citing Pub. Act
100-1182 (eff. June 1, 2019) (adding 730 ILCS 5/5-4.5-110) and Pub. Act 101-288, § 5 (eff. Jan.
1, 2020) (amending 730 ILCS 5/5-4.5-110(b) and renumbering as 730 ILCS 5/5-4.5-115(b)).
¶ 21 So here, we are presented with a case in which the “rare convergence” of factors that
were present in Leon Miller are entirely lacking. Glenn was not a juvenile when he sexually
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assaulted and murdered Lillian Final; under Illinois law, he was not even a young or “emerging
adult.” He was 24 years old when he committed his crimes.
¶ 22 Nor is this an accountability case, as in Leon Miller, House, and Cordell Williams. Glenn
did not merely stand watch while someone else brutalized Lillian Final. He personally violated
her, then put three bullets in her head. See People v. Ramsey, 2019 IL App (3d) 160759, ¶ 23
(affirming second-stage dismissal of postconviction petition alleging Miller and proportionate
penalties clause violations, where defendant was 18 at time of offense and was “solo actor who
sexually assaulted and killed one minor and then broke into a residence and shot four other
minors, killing one.”); People v. Handy, 2019 IL App (1st) 170213, ¶ 41 (rejecting successive
postconviction petition raising as-applied challenges under eighth amendment and proportionate
penalties clause to defendant’s 60-year sentence because defendant was adult who was “active
participant” in violent crimes); People v. Peters, 2011 IL App (1st) 092839, ¶ 56 (distinguishing
Leon Miller on basis that defendant was principal).
¶ 23 We thus agree with the circuit court that defendant’s claims failed as a matter of law and
were properly dismissed. We affirm the circuit court’s judgment.
¶ 24 Affirmed.
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