People v. Johnson ( 2018 )

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Appellate Court Date: 2018.07.10
16:26:36 -05'00'
People v. Johnson, 2018 IL App (1st) 153266
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LLEWILLYN JOHNSON, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-15-3266
Filed April 18, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 01-CR-2208; the
Review Hon. Thomas J. Hennelly, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Michael Gentithes, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
John E. Nowak, and Noah Montague, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion.
Justices Howse and Lavin concurred in the judgment and opinion.
OPINION
¶1 Following a 2004 bench trial, defendant Llewillyn Johnson was convicted of first degree
murder and sentenced to 40 years’ imprisonment. We affirmed on direct appeal. People v.
Johnson, No. 1-04-1812 (2005) (unpublished order under Illinois Supreme Court Rule 23). We
also affirmed the dismissal of his 2006 postconviction petition. People v. Johnson, 2015 IL
App (1st) 132664-U. Defendant now appeals from a 2015 order denying him leave to file a
successive postconviction petition. He contends that he showed the requisite cause and
prejudice regarding his claim that his 40-year prison sentence for a crime he committed when
he was 15 years old is improper. For the reasons stated below, we affirm.
¶2 The trial evidence was that, on October 15, 1998, defendant fatally shot his cousin, Kena
Brown, in her car while robbing Brown of a few ounces of cocaine and while her infant
daughter was in the car. Danielle Theus testified that, on the morning of October 15, she heard
Brown take a telephone call from a male caller, after which Brown told Theus that she was
going to meet her cousin Tari Brisco to deliver an ounce of drugs and then would meet Theus.
Brown’s car containing her body and her daughter was found that afternoon in the 4100 block
of West Kinzie Street in Chicago. James Parson testified that defendant told him in late
October or early November 1998 that he and Brisco robbed defendant’s cousin Kena of nine
ounces of cocaine, after Brisco arranged to buy cocaine from her, and defendant told Parson
that he “shot the bitch” in the head after telling her to look him in the eye. Parson testified that
defendant took him in November 1998 to the 4100 block of Kinzie Street, “the spot where he
had took his cousin,” and told Parson that he had intended to shoot Brown’s daughter but
decided to leave her in the car rather than take the time to shoot her and risk being caught.
Brisco was present on both occasions, and Parson described him as “just smiling” during
defendant’s accounts. After Parson was arrested for a drug offense in 2000, he told police
about defendant’s admission to killing Brown and took police to the Kinzie Street location. In
December 2000, Parson met defendant, with police recording the meeting, and defendant
bragged about shooting Brown after Brisco declined to shoot her and after she begged for her
life. The recording was shown at trial.
¶3 The presentence investigation report (PSI) indicated that defendant was born in July 1983.
Defendant admitted in the PSI to a juvenile adjudication for possession of a controlled
substance, for which he received probation that he completed successfully. However, the PSI
also stated that no juvenile adjudication was found under defendant’s name. Defendant was
raised by his mother and grandmother, and had a close relationship with them, but rarely saw
his father. Defendant reported a good childhood with no abuse. Defendant has three children
and saw them daily. He completed grade school, attended high school for two years and had
“average” grades before “dropping out,” tried unsuccessfully in 1999 to obtain his GED, and
stated his intent to obtain his GED. He was never employed. Defendant reported good physical
and mental health, denied drug and alcohol use, and denied gang membership.
¶4 At sentencing, the parties made no amendments to the PSI.
¶5 The State argued in aggravation that defendant admitted to Parson to cold-bloodedly
killing his cousin in front of her infant daughter, and initially intending to kill the infant as
well, merely to steal narcotics. The State argued that no mitigating factor applied and
particularly that defendant did not act under provocation, and argued that defendant showed no
remorse. The State noted that defendant admitted his crime to Parson on three occasions.
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Arguing that defendant “would do this to his own cousin, what would he do to someone else,”
the State described defendant as a “menace” and asked for the maximum sentence.
¶6 Defense counsel argued that defendant had no criminal offenses or juvenile adjudications,
had attended high school, had a good upbringing, and denied using drugs or alcohol. Counsel
also noted that defendant was 15 years old at the time of the offense, and asked the court to take
that into consideration in sentencing him.
¶7 The court noted that whatever sentence it imposed would not return Brown to her daughter.
The court found that
“in observing you on that tape, it was hard to believe that you were only 15 years old.
It’s a world that is completely unimaginable to me, a world that I don’t understand. At
15, you should have been in school worrying about an ACT, an SAT, so you could go
to college rather than ripping and running the streets. It is apparent in the video you
were comfortable with Mr. Parson, a man your senior. You felt very comfortable
keeping his company. *** [Y]our cousin, I never will forget the words that you said in
that tape, you didn’t know them like that. I interpreted that to mean that you weren’t as
close to that part of the family as you were to others. But no one regardless deserve[s]
to die by the gun that you held in your hand. No one, regardless. Kena was a young
lady. It was unfortunate that she was *** involved in an activity that she was involved
in. *** Now today we have a child that’s motherless. I think I can take that into
consideration as far as aggravation is concerned. *** Over what? Nonsense. Disrespect
for life. And that’s what you did. You didn’t appreciate life, you didn’t appreciate Kena
Brown’s life, and you didn’t appreciate yours because this is where you landed. It was
cold-blooded. Like they say out on the street, just low down and dirty. You were 15.
It’s a hard way for you to live and grow up now. Hard.”
The court sentenced defendant to 40 years’ imprisonment. After informing him of his appeal
rights, the court remarked that “[t]his is just a waste” because defendant was “a bright,
intelligent young man” who “could have gone so much further that what you did on that
afternoon.”
¶8 On direct appeal, defendant contended in relevant part that the trial court improperly
interjected the judge’s personal views, and considered a factor inherent in the offense, in
sentencing him. In affirming the conviction and sentence, we found no abuse of discretion in
the court’s 40-year sentence. Noting that the sentence was in the middle of the unextended
sentencing range for first degree murder, we found that the court’s sentencing remarks were
not improper but demonstrated due consideration of the particular circumstances of this case.
¶9 In his first postconviction petition in 2006, as amended by counsel in 2010, defendant
raised various claims. In relevant part, he claimed that (1) the first degree murder statute is
unconstitutional because it has the same elements, but a higher sentence, than second degree
murder and (2) he was not admonished about mandatory supervised release (MSR) at
sentencing, and his sentence should be reduced by the MSR term. The court granted the State’s
motion to dismiss in 2013. On appeal from the dismissal, defendant raised no challenge to his
sentencing.
¶ 10 In June 2015, defendant filed a pro se motion for leave to file a successive postconviction
petition. Citing Miller v. Alabama, 567 U.S. 460 (2012), he claimed that his 40-year prison
sentence for a crime committed when he was 15 years old is an unconstitutional de facto life
sentence. Citing People v. Davis, 2014 IL 115595, defendant argued that he showed cause for a
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successive petition because he could not have earlier raised a Miller claim and prejudice
because Miller applies retroactively to his sentencing hearing. His attached proposed petition
raised a Miller challenge to his sentence and claimed that the mandatory transfer statute, by
which his case proceeded as a criminal case rather than a juvenile case, violates the federal and
Illinois constitutions. It did not raise a claim that his sentence violates the Illinois Constitution.
¶ 11 The circuit court denied defendant leave to file a successive petition on July 17, 2015.
¶ 12 On appeal, defendant contends that he showed the requisite cause and prejudice for his
successive petition, because he stated meritorious challenges to his 40-year prison sentence for
a crime he committed when 15 years old.
¶ 13 Generally, a defendant may file only one postconviction petition without leave of court,
which may be granted if the defendant shows an objective cause for not previously raising the
instant claims and prejudice from not raising them. 725 ILCS 5/122-1(f) (West 2014). The
cause-and-prejudice test is a higher standard for a defendant to overcome than the
frivolous-and-patently-without-merit test for summarily dismissing a petition, and the circuit
court should deny leave when it is clear upon reviewing the successive petition and attached
documentation that the defendant’s claims fail as a matter of law or the petition and
documentation are insufficient to justify further proceedings. People v. Terry, 2016 IL App
(1st) 140555, ¶ 28 (citing People v. Smith, 2014 IL 115946, ¶ 35). Our review of the denial of
leave to file a successive petition is de novo. Id.
¶ 14 The eighth amendment of the United States Constitution prohibits “cruel and unusual
punishments.” U.S. Const., amend. VIII. It prohibits not only “inherently barbaric
punishments” but those “disproportionate to the crime.” Graham v. Florida, 560 U.S. 48, 59
(2010).
¶ 15 In Miller, the United States Supreme Court held that “mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’ ” Miller, 567 U.S. at 465. The Supreme Court
held that minors are constitutionally different from adults for sentencing purposes, being less
mature and responsible, more impulsive, and more vulnerable to negative influences and peer
pressure than adults, and not having the fully-formed character of adults so that their actions do
not necessarily indicate irreversible depravity. Id. at 471-474. “We therefore hold that the
Eighth Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” Id. at 479. While opining that “appropriate
occasions for sentencing juveniles to this harshest possible penalty will be uncommon,” the
Court stated that “we do not foreclose a sentencer’s ability to make that judgment in homicide
cases” but “a judge or jury must have the opportunity to consider mitigating circumstances
before imposing the harshest possible penalty for juveniles.” Id. at 479, 480, 489.
¶ 16 In Davis, our supreme court held that Miller stated a new substantive rule of law applicable
retroactively to cases on collateral review. Davis, 2014 IL 115595, ¶¶ 34-42. “In terms of the
requisite cause and prejudice of the Post-Conviction Hearing Act, Miller’s new substantive
rule constitutes ‘cause’ because it was not available earlier to counsel [citation], and
constitutes prejudice because it retroactively applies to defendant’s sentencing hearing.” Id.
¶ 42. The Davis defendant, 14 years old at the time of the offense, received a mandatory
sentence of natural life imprisonment, and the supreme court remanded for resentencing. Id.
¶¶ 4-5, 43.
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¶ 17 In People v. Patterson, 2014 IL 115102, ¶ 107, a defendant contending that the mandatory
transfer statute was unconstitutional argued that “the combination of the transfer statute and
the applicable sentencing provisions is unconstitutional as applied to non-homicide offenders.”
In rejecting that contention, the supreme court stated that “both this court and the United States
Supreme Court have closely limited the application of the rationale expressed in *** Miller,
invoking it only in the context of the most severe of all criminal penalties.” Id. ¶ 110. The
supreme court found that the defendant’s discretionary total sentence of 36 years’
imprisonment, or 30 years and 7 months with good-conduct credit, was “lengthy” but “not
comparable to” natural life imprisonment and thus “does not fall into that category” of the most
severe penalty. Id. ¶¶ 108, 110.
¶ 18 In Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), the Supreme Court
explained that, under Miller, life imprisonment without parole is unconstitutional for “juvenile
offenders whose crimes reflect the transient immaturity of youth”; that is, “for all but the rarest
of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at ___, 136 S.
Ct. at 734.
¶ 19 In People v. Reyes, 2016 IL 119271, a defendant who committed first degree murder and
two counts of attempted first degree murder when he was 16 years old received prison
sentences totaling 97 years when mandatory firearm enhancements were added to the
minimum sentence for each offense and mandatory consecutive sentencing applied. Id. ¶¶ 1-2.
Noting that the Miller “Court’s holding required that life-without-parole sentences be based on
judicial discretion rather than statutory mandates” (id. ¶ 4), our supreme court extended Miller
to include de facto as well as de jure life sentences.
“A mandatory term-of-years sentence that cannot be served in one lifetime has the
same practical effect on a juvenile defendant’s life as would an actual mandatory
sentence of life without parole—in either situation, the juvenile will die in prison.
Miller makes clear that a juvenile may not be sentenced to a mandatory, unsurvivable
prison term without first considering in mitigation his youth, immaturity, and potential
for rehabilitation.” Id. ¶ 9.
¶ 20 In People v. Holman, 2017 IL 120655, a defendant who committed first degree murder
when he was 17 years old received a sentence of natural life imprisonment in a discretionary
sentencing hearing. Id. ¶¶ 1, 6, 17. Our supreme court held “that Miller applies to discretionary
sentences of life without parole for juvenile defendants.” Id. ¶ 40. Noting that Illinois courts
have always held that age is a complex sentencing factor, the Holman court held that applying
Miller and Montgomery provides that
“a juvenile defendant may be sentenced to life imprisonment without parole, but only if
the trial court determines that the defendant’s conduct showed irretrievable depravity,
permanent incorrigibility, or irreparable corruption beyond the possibility of
rehabilitation. The court may make that decision only after considering the defendant’s
youth and its attendant characteristics. Those characteristics include, but are not limited
to, the following factors: (1) the juvenile defendant’s chronological age at the time of
the offense and any evidence of his particular immaturity, impetuosity, and failure to
appreciate risks and consequences; (2) the juvenile defendant’s family and home
environment; (3) the juvenile defendant’s degree of participation in the homicide and
any evidence of familial or peer pressures that may have affected him; (4) the juvenile
defendant’s incompetence, including his inability to deal with police officers or
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prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile
defendant’s prospects for rehabilitation.” Id. ¶ 46.
Such an examination is inherently retrospective, examining “evidence of the defendant’s youth
and its attendant characteristics at the time of sentencing” with the proviso that “[w]hether
such evidence exists depends upon the state of the record in each case.” Id. ¶ 47. “A court
revisiting a discretionary sentence of life without parole must look at the cold record to
determine if the trial court considered such evidence at the defendant’s original sentencing
hearing. We must decide whether the trial court did so here.” Id. The Holman court then
conducted such a review of the record in its case and concluded that the trial court had not run
afoul of Miller. Id. ¶¶ 48-50.
¶ 21 Here, where defendant was convicted and sentenced in 2004, we find that he could not
raise a claim under the 2012 Miller case until our supreme court held in Davis that Miller
applies retroactively to cases on collateral review. By that time, defendant’s first
postconviction petition as amended had already been dismissed. More importantly, Davis
preceded defendant’s 2015 motion to file a successive petition, and he cited Davis in the
motion. However, for defendant to show cause and prejudice under Davis, he must have a
meritorious claim under Miller, Montgomery, and their progeny. It is undisputed that
defendant was a minor when he committed this offense. Whether his sentence is a de facto life
sentence is in considerable dispute.
¶ 22 This case does not concern a sentence of natural life imprisonment as in Miller,
Montgomery, Davis, or Holman, and the 40-year sentence here is not an obvious de facto life
sentence like the 97 years in Reyes. Moreover, the 40-year sentence here was not the product of
mandatory sentencing minimums or enhancements; indeed, the trial court sentenced defendant
firmly in the middle of the applicable unextended and unenhanced range. While our supreme
court has held that a discretionary natural life sentence (Holman) and a mandatory de facto life
sentence (Reyes) raise issues under Miller and its progeny, it has not held that a discretionary
sentence of a term of years in prison was constitutionally problematic as a de facto life
sentence. It does not inherently follow from decisions scrutinizing a discretionary imposition
of the absolute maximum sentence for minors (Holman) and a mandatory sentence indubitably
equivalent to that maximum sentence (Reyes) that similar constitutional scrutiny applies to a
lengthy but wholly discretionary sentence that is not clearly “unsurvivable.” Reyes, 2016 IL
119271, ¶ 9.
¶ 23 That said, the question of whether a sentence is a de facto life sentence under Miller and its
progeny has been repeatedly examined. Though Patterson was reviewing the automatic
transfer statute rather than a sentence, it provides useful guidance insofar as our supreme court
with Miller firmly in mind found that a 36-year total sentence was not equivalent to a life
sentence. This court did not find a de facto life sentence in People v. Perez, 2018 IL App (1st)
153629, ¶¶ 37-38 (discretionary 53 years); People v. Hoy, 2017 IL App (1st) 142596, ¶ 46, pet.
for leave to appeal pending, No. 122911 (filed May 9, 2018) (discretionary 52 years); People v.
Gipson, 2015 IL App (1st) 122451, ¶¶ 65-67 (mandatory 52 years); People v. Jackson, 2016 IL
App (1st) 143025, ¶¶ 54-58, pet. for leave to appeal pending, No. 121527 (filed Nov. 3, 2016)
(discretionary 50 years); or People v. Applewhite, 2016 IL App (1st) 142330, ¶ 16, pet. for
leave to appeal pending, No. 121901 (filed Feb. 10, 2017) (mandatory 45 years). In People v.
Evans, 2017 IL App (1st) 143562, ¶¶ 14-18, pet. for leave to appeal pending, No. 122701 (filed
Sept. 19, 2017), this court found that a discretionary 90-year total sentence, or 45 years with
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day-for-day good-conduct credit, was not a de facto life sentence. Conversely, this court found
de facto life sentences in People v. Morris, 2017 IL App (1st) 141117, ¶ 30 (discretionary 100
years); People v. Nieto, 2016 IL App (1st) 121604, ¶ 42-43, pet. for leave to appeal pending,
No. 120826 (filed July 8, 2016) (discretionary 78 years); People v. Smolley, 2018 IL App (3d)
150577, ¶¶ 21-22 (discretionary 65 years); and People v. Ortiz, 2016 IL App (1st) 133294,
¶ 24, pet. for leave to appeal pending, No. 121578 (filed Dec. 30, 2016) (discretionary 60
years). In People v. Buffer, 2017 IL App (1st) 142931, ¶¶ 62-63, pet. for leave to appeal
granted, No. 122327 (Ill. Nov. 22, 2017), this court found a discretionary 50-year sentence to
be a de facto life sentence, citing studies of reduced life expectancy in prisoners. Id. ¶¶ 59-60.
In People v. Sanders, 2016 IL App (1st) 121732-B, ¶¶ 25-27, pet. for leave to appeal pending,
No. 121275 (filed Oct. 12, 2016), this court similarly found a discretionary sentence totaling
100 years, or “at least 49 years” with good-conduct credit, to be a de facto life sentence due to
the defendant’s reduced life expectancy as a prisoner. But see Evans, 2017 IL App (1st)
143562, ¶ 15 (“Prison life is undoubtedly harsh. But Evans invites us into the weeds of
actuarial tables, asking us to make a legal determination of his likely lifespan. We are in a poor
position to make this prediction and decline to do so.”).
¶ 24 We find that we need not determine whether defendant’s sentence is a de facto life
sentence because, assuming arguendo that it is, we find no error upon conducting a Holman
analysis of his sentencing. As we have stated, “a key feature of the juvenile’s sentencing
hearing is that the defendant had the ‘opportunity to present evidence to show that his criminal
conduct was the product of immaturity and not incorrigibility.’ ” People v. Croft, 2018 IL App
(1st) 150043, ¶ 23 (quoting Holman, 2017 IL 120655, ¶ 49). Croft noted that the Holman
factors are “a nonexhaustive list” and that “nothing in Miller or Holman suggests that we are
free to substitute our judgment for that of the sentencing court” because the issue is not the
particular sentence the trial court imposed but whether defendant had the opportunity to
present evidence regarding his youth and the court considered his youth and its attendant
characteristics in reaching its sentencing decision. Id. ¶¶ 32-33. As in Croft, “we have
examined the cold record of the circuit court’s [sentencing] hearing ***, which includes the
common law record and report of proceedings, and find that the circuit court considered
evidence of the defendant’s youth and its attendant characteristics at the time of sentencing and
that the defendant had” the opportunity required by Holman. Id. ¶ 24. As in Croft, the trial
court had before it the trial evidence, the PSI, and the sentencing arguments of the parties. Id.
¶ 25 Regarding the first Holman factor—defendant’s age at the time of the offense and any
evidence of his particular immaturity, impetuosity, and failure to appreciate risks and
consequences—counsel argued defendant’s age in mitigation, and the court noted that
defendant was 15 years old at the time of the offense. There was no evidence that defendant
was particularly immature or impetuous. As to the second Holman factor—defendant’s family
and home environment—while he rarely saw his father, he was raised by his mother and
grandmother, had a close relationship with them, and reported a good childhood with no abuse.
Regarding the third Holman factor—defendant’s degree of participation in the offense and any
evidence of familial or peer pressures that may have affected him—the evidence was that
defendant himself fatally shot Brown, his cousin, in robbing her of a few ounces of cocaine.
While he did so with Brisco, who phoned Brown to arrange the purported delivery of cocaine,
there was no evidence that defendant was pressured into the offense. Parson testified that
Brisco passively smiled while defendant twice described the offense to Parson. While
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defendant argues that his boasting to Parson is evidence of his susceptibility to peer pressure,
the fact that he bragged afterwards is not evidence that his crimes were the product of pressure
or influence rather than his own desire to steal cocaine from Brown. There was no evidence
that defendant was unable to deal with police officers or prosecutors, nor incapable of assisting
his own attorneys, which is the fourth Holman factor. As to the fifth Holman
factor—defendant’s rehabilitative prospects—the court had before it evidence and arguments
in mitigation; commented on some of it, including defendant’s age and intelligence; and
concluded that defendant’s offense was “cold-blooded” and “low down and dirty.” Similarly
the trial court in Croft also heard mitigating evidence and argument and considered them (id.
¶¶ 29, 32). While the Croft trial court did not expressly find the defendant incorrigible, it found
him to be “really cold hearted, almost inhuman in his participation in his brutal, heinous, evil
doing.” (Internal quotation marks omitted.) Id. ¶ 31.
¶ 26 We reach the same conclusion as in Croft: “the Holman factors were sufficiently
addressed” and “we cannot say that defendant’s sentencing hearing was constitutionally
defective.” Id. ¶ 32. Because defendant’s claim is not meritorious, he cannot show the requisite
prejudice for his successive petition and the denial of leave to file it was not erroneous.
¶ 27 Defendant also contends that his sentence separately violates the proportionate penalties
clause of the Illinois Constitution, providing 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. However, his successive petition did not raise
such a claim, which, contrary to his reply-brief contention, cannot be raised at any time. People
v. Thompson, 2015 IL 118151, ¶ 32 (facial constitutional challenges to statutes cannot be
forfeited, but as-applied challenges are forfeited by not raising them in the circuit court);
Holman, 2017 IL 120655, ¶ 32 (“Davis creates a very narrow exception to [the Thompson] rule
for an as-applied Miller claim for which the record is sufficiently developed for appellate
review.”). Moreover, even if we were to read such a claim into his proposed successive
petition, he lacks the requisite cause for not raising it earlier. Unlike his Miller claim that he
could not have raised until Davis, as stated above, our supreme court ruled favorably on a
minor’s proportionate penalties claim in 2002. Davis, 2014 IL 115595, ¶ 45 (citing People v.
Miller, 202 Ill. 2d 328 (2002)). Thus, defendant could have raised a proportionate penalties
claim on direct appeal from his 2004 conviction or in his first postconviction petition.
¶ 28 Accordingly, the judgment of the circuit court is affirmed.
¶ 29 Affirmed.
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