People v. Bishop

2022 IL App (1st) 201015-U1-20-1015
Filed June 9, 2022
Fourth 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 DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Respondent-Appellee, ) Cook County.
)
v. ) No. 94 CR 13250
)
MICHAEL BISHOP, ) Honorable
) Timothy J. Joyce,
Petitioner-Appellant. ) Judge, Presiding
JUSTICE MARTIN delivered the judgment of the court.
Justices Lampkin and Rochford concurred in the judgment.
ORDER
¶1 Held: The circuit court properly denied petitioner’s motion for leave to file a successive
postconviction petition asserting a claim predicated on Miller v. Alabama when
petitioner pled guilty to offenses he committed at age 18 and his sentences afford
an opportunity for release after serving less than 40 years in prison.
¶2 Michael Bishop appeals from the circuit court’s order denying his motion for leave to file
a successive postconviction petition. He argues that his motion established the requisite cause and
No. 1-20-1015
prejudice to file a successive petition to challenge the constitutionality of his aggregate 70-year
sentence for offenses he committed at age 18. We disagree and affirm the circuit court’s order. 1
¶3 I. BACKGROUND
¶4 Following his arrest, Michael Bishop gave a court reported statement admitting that he
forced 41-year-old Marva Thomas into a sex act before strangling her to death on April 21, 1994.
The state initially sought the death penalty. After a jury was selected, Bishop pled guilty to first
degree murder and aggravated criminal sexual assault, pursuant to a negotiated plea agreement.
The terms of the plea agreement included a sentencing recommendation of 50 years for first degree
murder followed by a consecutive term of 20 years for aggravated criminal sexual assault, an
aggregate term of 70 years. The circuit court accepted Bishop’s guilty plea and sentenced him in
accordance with the agreement. Bishop subsequently filed a motion to vacate his conviction and
withdraw his guilty plea. He also filed a postconviction petition asserting various claims of
ineffective assistance of counsel. The circuit court ultimately denied his motion and summarily
dismissed his postconviction petition. This court affirmed both orders in a consolidated appeal.
People v. Bishop, Nos. 1-00-0310 and 1-00-3263 cons. (2002) (unpublished orders pursuant to
Supreme Court Rule 23).
¶5 In July 2020, Bishop filed the motion for leave to file a successive postconviction petition
that is the subject of this appeal. Bishop claimed that the United States Supreme Court’s eighth
amendment ruling regarding juvenile offenders in Miller v. Alabama, 567 U.S. 460 (2012),
provided cause for a successive petition since it was decided after his conviction and applies
retroactively. His motion also asserted that he was prejudiced by the inability to assert a
Miller-based claim in his initial petition because, as he contended, Miller supports that his 70-year
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
1
appeal has been resolved without oral argument upon the entry of a separate written order.
-2-
No. 1-20-1015
sentence violates the eighth amendment since it is a “de facto life sentence” imposed without the
sentencing court’s consideration of his youth and rehabilitative potential. Bishop also claimed that
his plea counsel was ineffective for failing to object to consecutive sentences. He further believed
the court was required by statute to make certain findings before imposing consecutive sentences
and such findings were not supported by the record.
¶6 In a written order, the circuit court found that Bishop had not demonstrated cause and
prejudice to permit the filing of a successive petition. The court found that the eighth amendment
protections afforded by Miller did not extend to Bishop since he was not a juvenile (under age 18)
at the time of his offenses. The court went on to find that Bishop likewise could not establish that
his sentence violates the Illinois Constitution. Regarding his ineffective assistance claim, the court
noted that it could have been raised in his initial petition and, that notwithstanding, the statutory
provision Bishop cited did not apply to him. Rather, his convictions required consecutive sentences
by statute. Accordingly, the court denied the motion for leave to file a successive postconviction
petition. Bishop filed a timely notice of appeal.
¶7 II. ANALYSIS
¶8 On appeal, Bishop argues that he sufficiently demonstrated cause and prejudice to assert a
claim that his sentence is unconstitutional as applied to him and that his guilty plea was not
knowingly made since he was not aware at the time of the plea that the sentence was
unconstitutional. He does not raise any arguments relating to the ineffective assistance claim
asserted in his motion filed in the circuit court.
¶9 The Postconviction Hearing Act (Act) (735 ILCS 5/122-1 et seq. (West 2020)) enables an
imprisoned person to challenge their conviction or sentence on constitutional grounds. People v.
Edwards, 2012 IL 111711, ¶ 21. Such a challenge is a collateral attack, not a substitute for direct
-3-
No. 1-20-1015
appeal. Id. Claims that were decided on appeal are barred by res judicata and claims that could
have been raised on direct appeal, but were not, are forfeited. Id. The Act contemplates the filing
of only one petition. Id. ¶ 22. Claims not raised in an initial petition are deemed waived. Id. ¶ 21.
The Act requires a petitioner to first obtain leave from the circuit court before filing a successive
petition. Id. ¶ 24. Leave should be granted only when the petitioner demonstrates cause—an
objective factor that impeded the petitioner from including the claim in an initial petition—and
prejudice—that the claimed error renders the petitioner’s conviction or sentence a violation of due
process. People v. Ross, 2020 IL App (1st) 171202, ¶ 13. In other words, the petitioner must show
that their claims have merit, and they could not have raised them before. Our review of a circuit
court’s denial of a motion for leave to file a successive petition is de novo. Id.¶ 10 In Miller, the Supreme Court held that the eighth amendment forbids a juvenile offender
from being sentenced to a mandatory term of life without the possibility of parole. 567 U.S. at 472.
Recognizing that “children are constitutionally different from adults for purposes of sentencing”
(id. at 471), the Court found that the eighth amendment requires that judges be afforded discretion
to consider youth and its attendant mitigating circumstances when sentencing a juvenile. Id. at 476,
489. Our supreme court extended Miller’s eighth amendment protections to juveniles sentenced to
a lengthy term of years that amount to the functional equivalent of life without the possibility of
parole (termed de facto life). People v. Reyes, 2016 IL 119271, ¶ 9. The court later resolved that
“a prison sentence of 40 years or less imposed on a juvenile offender provides some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.” People v. Buffer,
2019 IL 122327, ¶ 41. Accordingly, “a prison sentence of 40 years or less imposed on a juvenile
offender does not constitute a de facto life sentence in violation of the eighth amendment.” Id.-4-
No. 1-20-1015
¶ 11 In this case, the parties dispute whether Bishop could qualify for the constitutional
protections recognized for juveniles since he was 18 at the time of his offenses. They also dispute
whether his guilty plea bars him from raising these issues. Authority from our supreme court works
against Bishop on both of these points. See People v. Harris, 2018 IL 121932, ¶ 61 (finding that
Miller does not apply to 18-year-olds); People v. Jones, 2021 IL 126432, ¶ 27 (finding a juvenile
sentenced pursuant to a negotiated guilty plea has waived any Miller-based challenge). We could
affirm on these grounds. Nevertheless, we observe that Bishop cannot establish prejudice as his
sentence is not de facto life.
¶ 12 Although Bishop was sentenced to a prison term of 70 years, he is eligible to receive
day-for-day good conduct credit toward his sentence. 730 ILCS 5/3-6-3(a)(2) (West 1994) (“the
prisoner shall receive one day of good conduct credit for each day of service in prison other than
where a sentence of ‘natural life’ has been imposed. Each day of good conduct credit shall reduce
by one day the inmate’s period of incarceration set by the court.”). As a result, he could be released
from prison upon serving 35 years. Indeed, the Illinois Department of Corrections’ website, of
which we may take judicial notice (People v. Pagsisihan, 2020 IL App (1st) 181017, ¶ 35), reports
that his projected parole date is in April 2029—35 years from the date he was first taken into
custody. Accordingly, Bishop is not subject to a de facto life sentence. Based on our supreme
court’s precedent, a defendant’s opportunity for release after 40 or fewer years is “the only relevant
consideration” when evaluating whether the defendant’s sentence violates the eighth amendment
under Miller. People v. Brakes, 2021 IL App (1st) 181737, ¶ 34 (citing Dorsey, 2021 IL 123010,
¶ 64). Therefore, Bishop’s sentence does not violate Miller.
¶ 13 Similarly, Bishop’s sentence does not violate the proportionate penalties clause of the
Illinois Constitution. The provision requires Illinois courts to consider both “the seriousness of the
-5-
No. 1-20-1015
offense” and “the objective of restoring the offender to useful citizenship” when determining
criminal sentences. Ill. Const. 1970, art 1, § 11. While we have recognized that the proportionate
penalties clause affords greater protection against excessive punishment than the eighth
amendment (People v. Robinson, 2012 IL App (1st) 192289, ¶ 46), we still take guidance from
eighth amendment decisions when evaluating proportionate penalties claims. People v. Fernandez,
2014 IL App (1st) 120508, ¶ 63. We do not believe that defendants who are serving less than a
de facto life sentence and, therefore, cannot establish a Miller claim, can simply repackage the
same youth-related arguments stemming from Miller to establish a viable proportionate penalties
claim. See, e.g., People v. Hill, 2022 IL App (2d) 200416, ¶ 37 (rejecting proportionate penalties
claim premised on Miller-type arguments based on eighth amendment cases). That is precisely
what Bishop attempts to do in this appeal.
¶ 14 In addition, Bishop’s motion filed in the circuit court only asserted that his sentence
violated the eighth amendment based on Miller. It made no mention of the proportionate penalties
clause. Nor did Bishop use any language consistent with the provision. Petitioners cannot raise
issues for the first time on appeal if they failed to include those particular arguments before the
circuit court. People v. Brown, 2021 IL App (1st) 180991, ¶ 52; People v. Watson, 2022 IL App
(1st) 192182, ¶¶ 29-34 (finding petitioner forfeited proportionate penalties claim regarding his
sentence when he did not articulate such an argument before the circuit court). But even if he had
asserted a proportionate penalties claim, he could not establish cause since he could have included
such a claim in his initial petition. Dorsey, 2021 IL 123010, ¶ 74 (finding that Miller does not
provide cause for a defendant to raise a claim under the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970, art. 1, § 11) in a successive postconviction petition).
-6-
No. 1-20-1015
¶ 15 III. CONCLUSION
¶ 16 For these reasons, we find that Bishop failed to demonstrate cause and prejudice to file a
successive postconviction petition and affirm the judgment of the circuit court.
¶ 17 Affirmed.
-7-