People v. Barry

2023 IL App (2d) 220324No. 2-22-0324
Opinion filed August 29, 2023
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 99-CF-3272
)
LIONEL J. BARRY, ) Honorable
) Julia A. Yetter,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Defendant, Lionel J. Barry, appeals from an order granting the State’s motion to dismiss
his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2020)). We affirm.
¶2 I. BACKGROUND
¶3 The State charged defendant with committing several offenses on December 14, 1999,
when he was 17 years old. The charges included three alternative counts of first degree murder
(720 ILCS 5/9-1(a)(1), (2), (3) (West 1998)), two alternative counts of home invasion (id. § 12-
11(a)(1)), and one count each of attempted murder (id. §§ 8-4(a), 9-1(a)(1)), aggravated battery
2023 IL App (2d) 220324with a firearm (id. § 12-4.2(a)(1)), and armed robbery while armed with a deadly weapon (id. § 18-
2(a)).
¶4 On August 9, 2002, the parties presented an agreement under which defendant would plead
guilty to the aggravated battery with a firearm count (id. § 12-4.2(a)(1)) and one of the first degree
murder counts (id. § 9-1(a)(3)). In exchange, the State would dismiss the remaining charges. There
was no agreement on sentencing. The court sentenced defendant to consecutive prison terms of 6
years for aggravated battery with a firearm and 30 years for first degree murder. Defendant filed a
motion to reduce the sentence, which the court denied. Defendant appealed.
¶5 On appeal, we remanded the cause for proper admonishments under Illinois Supreme Court
Rule 605(b) (eff. Oct. 1, 2001). People v. Barry, No. 2-03-0382 (2004) (unpublished order under
Illinois Supreme Court Rule 23). Defendant filed a new motion to reduce the sentence, which the
trial court also denied. On appeal, defendant contended that he had been denied a fair sentencing
hearing. We disagreed and affirmed. People v. Barry, No. 2-05-0015 (2006) (unpublished order
under Illinois Supreme Court Rule 23).
¶6 On October 9. 2007, defendant filed his first petition under the Act. On December 10, 2007,
the trial court summarily dismissed the petition. Defendant did not appeal.
¶7 On October 9, 2019, the trial court granted defendant leave to file his pro se successive
petition (see 725 ILCS 5/122-1(f) (West 2018)). The court docketed the petition for second-stage
review and appointed counsel. On January 19, 2021, counsel filed an amended petition. That
petition contained three claims; only one is pertinent here. It centered on section 5-4.5-115(b) of
the Unified Code of Corrections (730 ILCS 5/5-4.5-115(b) (West Supp. 2019)), enacted in 2019.
See Pub. Act 100-1182, § 5 (eff. June 1, 2019) (adding 730 ILCS 5/5-4.5-110); Pub. Act 101-288,
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2023 IL App (2d) 220324§ 10 (eff. Jan. 1, 2020) (amending and renumbering as 730 ILCS 5/5-4.5-115). Subsection (b) of
section 5-4.5-115 reads:
“(b) A person under 21 years of age at the time of the commission of an offense or
offenses, other than first degree murder, and who is not serving a sentence for first degree
murder and 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 Prisoner Review Board after serving 10
years or more of his or her sentence or sentences, except for those serving a sentence or
sentences for: (1) aggravated criminal sexual assault who shall be eligible for parole review
by the Prisoner Review Board after serving 20 years or more of his or her sentence or
sentences or (2) predatory criminal sexual assault of a child who shall not be eligible for
parole review by the Prisoner Review Board under this Section. 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 Prisoner 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 under Section 5-
8-1 of this Code [(730 ILCS 5/5-8-1 (West 2020))] or any person subject to sentencing
under subsection (c) of Section 5-4.5-105 of this Code [(id. § 5-4.5-105(c))].” 730 ILCS
5/5-4.5-115(b) (West Supp. 2019). 1
1
During this appeal, the legislature amended section 5-4.5-115(b) by extending parole
review to, inter alia, a person convicted of first degree murder committed when he or she was
under 21 years of age and sentenced to natural life imprisonment on or after June 1, 2019. See Pub.
Act 102-1128, § 5 (eff. Jan. 1, 2024) (amending 730 ILCS 5/5-4.5-115(b)). The amendment has
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2023 IL App (2d) 220324Defendant contended that, as applied to him, section 5-4.5-115(b) violated the equal protection
clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970,
art. I, § 2) because it arbitrarily limited the opportunity for parole to those sentenced on or after
June 1, 2019. Defendant reasoned that the bases for providing a chance for parole to an offender
under 21—relative immaturity and incomplete brain development 2—applied equally to everyone
in that age group, regardless of sentencing date.
¶8 The State moved to dismiss the petition on several grounds. First, the State argued that
defendant had waived his challenge to the judgment by pleading guilty. Defendant could not now
seek a new benefit while holding the State to its end of the bargain. Second, the State argued that,
because section 5-4.5-115(b) neither affects a fundamental right nor creates a suspect
classification, it must be upheld if it has a rational basis. According to the State, the legislature
reasonably restricted the operation of section 5-4.5-115(b) to defendants unsentenced when the
law was enacted. Otherwise, defendants would deluge the courts with additional proceedings.
¶9 The trial court granted the State’s motion. Defendant timely appealed.
¶ 10 II. ANALYSIS
no bearing on the issues raised in this appeal.
2
“The enactment of [(730 ILCS 5/5-4.5-115(b) (West Supp. 2019))] is a reflection of the
recent Illinois jurisprudence deriving from Miller v. Alabama, 567 U.S. 460 (2012), recognizing
the potential for rehabilitation of juveniles and the evolving neuroscience showing that young
adults (18 to 21 years old) may have similar brain development to those typically considered
juveniles.” People v. Profit, 2023 IL App (1st) 210881, ¶ 23; see 100th Ill. Gen. Assem., Senate
Proceedings, May 31, 2017, at 31, 36 (statements of Senator Harmon).
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2023 IL App (2d) 220324¶ 11 On appeal, defendant contends that he made a substantial showing that, as applied to him,
section 5-4.5-115(b) violates equal protection. The State responds that (1) defendant lacks standing
to challenge section 5-4.5-115(b), (2) defendant waived his challenge by pleading guilty, and
(3) section 5-4.5-115(b) does not violate equal protection because the legislature had a rational
basis for not making the law retroactive.
¶ 12 At the second stage of proceedings under the Act, the defendant bears the burden of making
a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473
(2006). We review de novo the second-stage dismissal of a petition under the Act. People v.
Whitfield, 217 Ill. 2d 177, 182 (2005). We may affirm the judgment on any basis of record. People
v. Johnson, 208 Ill. 2d 118, 129 (2003).
¶ 13 We affirm on two bases—that the Act does not recognize defendant’s claim as a basis for
relief and that, even if defendant’s claim were within the scope of the Act, section 5-4.5-115(b)
does not violate equal protection.
¶ 14 The first basis is compelled by the plain language of section 122-1(a)(1) of the Act:
“(a) Any person imprisoned in the penitentiary may institute a proceeding under
this Article if the person asserts that:
(1) in the proceedings which resulted in his or her conviction there was a
substantial denial of his or her rights under the Constitution of the United States or
of the State of Illinois or both[.]” (Emphasis added.) 725 ILCS 5/122-1(a)(1) (West
2018).
Defendant’s challenge to section 5-4.5-115(b), passed in 2019, does not raise a claim that he was
denied any constitutional rights in the proceedings that resulted in his conviction or sentence.
Whatever errors or deprivations might have occurred in defendant’s plea and sentencing, they did
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2023 IL App (2d) 220324not include the enactment of an allegedly invalid statute years later. See People v. Harris, 2022 IL
App (1st) 211236-U, ¶¶ 25-26 (claim that the State denied the defendant due process by destroying
evidence following her direct appeal was beyond the Act’s scope); People v. Keller, 353 Ill. App.
3d 830, 832-33 (2004) (claim that corrections officials misinterpreted the defendant’s sentence
was not cognizable under the Act). Thus, defendant’s claim falls outside the Act. 3 See People v.
LaPointe, 2023 IL App (2d) 210312, ¶ 17.
¶ 15 Although neither the State nor the trial court relied on this ground, there is no unfairness in
our raising it sua sponte. This defect in defendant’s claim is a matter of law that could not have
been cured by amendment. Moreover, we are responsible for maintaining a sound and uniform
body of precedent. See Hux v. Raben, 38 Ill. 2d 223, 225 (1967). Thus, there is neither a legal nor
an equitable reason to refrain from our holding here.
¶ 16 Further, even if defendant’s claim could be construed to fall within the scope of the Act, it
would lack merit. Section 5-4.5-115(b) does not violate equal protection.
¶ 17 We review de novo the constitutionality of a statute. People v. Jones, 223 Ill. 2d 569, 596
(2006). In conducting an equal protection analysis, we apply the same standards under the United
States and Illinois Constitutions. People v. Richardson, 2015 IL 118255, ¶ 9. A legislative
classification that does not discriminate against a suspect class or impact a fundamental right will
be upheld if the classification bears a rational relationship to a legitimate government purpose. Id.3
Moreover, the enactment of section 5-4.5-115(b) did not deny defendant any rights he had
at the time of the original proceedings or had been granted since then. The gravamen of his petition
is that the new section grants other offenders new rights that it does not grant him.
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2023 IL App (2d) 220324¶ 18 Defendant contends that section 5-4.5-115(b) violates equal protection because it
arbitrarily limits the opportunity for parole to those sentenced on or after June 1, 2019. Defendant
concedes that, because the new law neither affects a fundamental right nor creates a suspect
classification, it must be upheld if there is a rational basis for the differential treatment. See People
v. Alcozer, 241 Ill. 2d 248, 263 (2011) (“Prisoners are not a suspect class.”); Vitek v. Jones, 445
U.S. 480, 488 (1980) (parole is not a fundamental right). Defendant, however, denies that there is
a rational basis to distinguish between offenders solely as to their sentencing date. We disagree.
¶ 19 Our conclusion is guided by the principles set out in Richardson, 2015 IL 118255, ¶¶ 9-11.
There, the supreme court held that the legislature did not violate equal protection by extending the
applicability of the Juvenile Court Act of 1987 from minors under the age of 17 to minors under
the age of 18 but limiting the amendment to violations committed after January 1, 2014, the
effective date of the change (see 705 ILCS 405/5-120 (West Supp. 2013); see also Pub. Act 98-
61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120)). Richardson, 2015 IL 118255, ¶¶ 3, 9-
11. Like defendant here, Richardson, who was charged in 2013 when he was 17, contended that
limiting the amendment to prospective application denied him equal protection. Id. ¶¶ 3, 7.
¶ 20 Rejecting this argument, the court noted that “neither the fourteenth amendment nor the
Illinois Constitution prevents statutes and statutory changes from having a beginning, nor does
either prohibit reasonable distinctions between rights as of an earlier time and rights as they may
be determined at a later time.” Id. ¶ 10. The court held that the temporal limitation of the
amendment was rationally related to the purpose of judicial economy: cases already in progress
would not have to restart, and defendants could not manipulate or delay their proceedings to take
advantage of the new law. Id. In so holding, the court relied on People v. Grant, 71 Ill. 2d 551,
560-62 (1978), where it found no equal protection violation in the legislature’s decision to make a
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2023 IL App (2d) 220324law changing the sentence for aggravated battery applicable only to those defendants who had not
been sentenced before the amendment’s effective date. See Richardson, 2015 IL 118255, ¶ 11.
¶ 21 Recently, three of our sister appellate districts have followed Richardson in concluding
that section 5-4.5-115(b) does not violate equal protection. In Profit, 2023 IL App (1st) 210881,
¶¶ 34-37, the court reasoned:
“Effective dates for the application of a statute are remarkably common. In every
instance where a new statute applies only prospectively, there will be two similarly situated
classes that are treated differently based on the temporal reach of the statute or amendment.
In that sense, the challenge before us is not unique nor distinguishable from the
circumstances in Richardson. As the appellate court, we have no authority to depart from
our supreme court’s precedent on an issue, and defendant provides no precedential
authority contradicting either Richardson or Grant. See People v. Artis, 232 Ill. 2d 156,
164 (2009) (‘The appellate court lacks authority to overrule decisions of [the supreme]
court, which are binding on all lower courts.’).
Moreover, the clear purposes of establishing effective dates for legislative changes
set forth in Richardson are equally applicable here. We, like the Richardson court,
recognize the resulting disparities in being sentenced prior to a change in the law that could
potentially reduce such sentence; however, there must be some semblance of finality to
convictions, and judicial resources are limited. The legislature intended to provide youthful
offenders with cases then pending in the trial court, as well as future youthful offenders,
the possibility of parole review to assess their rehabilitation. As such, we find the statute
bears a rational relationship to a legitimate state interest and must be upheld.” Id. ¶¶ 36-37.
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2023 IL App (2d) 220324¶ 22 In People v. Wells, 2023 IL App (3d) 210292, the court similarly relied on Richardson, as
well as People v. Hunter, 2016 IL App (1st) 141904, the latter of which upheld the prospective-
only application of a new statute requiring trial courts to consider mitigating factors when
sentencing juveniles (see 730 ILCS 5/5-4.5-105 (West 2016)). Wells, 2023 IL App (3d) 210292,
¶ 31 (citing Hunter, 2016 IL App (1st) 141904, ¶ 61). Wells noted numerous foreign cases
upholding legislation applying new sentencing laws prospectively only (see id. ¶¶ 32-33, 37),
including federal legislation that reduced the penalties for defendants sentenced only after a certain
date (id. ¶ 33 (citing, inter alia, Dorsey v. United States, 567 U.S. 260, 281 (2012))). The court
found that legislatures had two proper grounds for limiting penal reform statutes, such as section
5-4.5-110(b) to future cases. Id. ¶¶ 41-42. First, “ ‘[p]rospective application allows the [l]egislature
to control the risk of new legislation by limiting its application.’ ” Id. ¶ 41 (quoting People v.
Lynch, 146 Cal. Rptr. 3d 811, 817 (Ct. App. 2012)). Second, prospective application promotes
finality in sentencing by refusing to disturb charging and sentencing decisions that were valid when
imposed. Id. ¶ 42.
¶ 23 Likewise, the court in People v. Lowder, 2023 IL App (4th) 220315-U, ¶¶ 41-42, 46, held
that the prospectivity of section 5-4.5-110(b) was rationally related to both finality and
governmental economy. As to finality, the court noted that lawmakers had defended the
prospectivity of the statute based on “concern for victims and their families and upholding the
promises made by prosecutors surrounding the finality of a defendant’s sentence.” Id. ¶ 41. The
legislature “sought to avoid undermining confidence in the justice system by diminishing the
finality of sentences on matters already adjudicated.” Id. ¶ 42. As to governmental economy, the
court reasoned, as did the Richardson court, that prospectivity avoids confusion and delay and
preserves scarce resources. Id. ¶ 46. The court noted that, even aside from the new law, the Parole
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2023 IL App (2d) 220324Review Board reviews thousands of matters yearly (id. ¶ 48) and that “preparing for the parole
hearing is resource intensive” (id. ¶ 49).
¶ 24 We agree with the reasoning of all the foregoing cases. The finality of prior sentencing
decisions and the conservation of limited time and resources are rational bases for restricting
section 5-4.5-115(b) to prospective application. Thus, even if defendant’s claim were cognizable
under the Act, he could not make a substantial showing of a constitutional violation. Therefore,
the trial court properly dismissed defendant’s postconviction petition.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 27 Affirmed.
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2023 IL App (2d) 220324People v. Barry, 2023 IL App (2d) 220324Decision Under Review: Appeal from the Circuit Court of Kane County, No. 99-CF-3272;
the Hon. Julia A. Yetter, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Drew A. Wallenstein, of
for State Appellate Defender’s Office, of Elgin, for appellant.
Appellant:
Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick Delfino,
for Edward R. Psenicka, and Ivan O. Taylor Jr., of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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