People v. Harris

2019 IL App (1st) 162016-UNo. 1-16-2016
Third Division
December 31, 2019
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party 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 ) Appeal from the
ILLINOIS, ) Circuit Court of
) Cook County.
Respondent-Appellee, )
) No. 86 CR 14929 (02)
v. )
) Honorable
EARL HARRIS, ) Dennis J. Porter,
) Judge, presiding.
Petitioner-Appellant. )
______________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Ellis and Justice McBride concurred in the judgment.
ORDER
¶1 Held: The trial court’s summary dismissal of defendant’s postconviction petition was
proper where the petition failed to allege a cognizable claim that his sentence was
unconstitutional.
¶2 Defendant, Earl Harris, appeals the circuit court’s dismissal denying leave to file a third
petition for postconviction relief concerning his convictions for armed robbery and first
degree murder committed in 1986 when he was 20 years old. Defendant was sentenced to life
without the possibility of parole which he now alleges was unconstitutional in light of this
No. 1-16-2016
court’s ruling in People v. House, 2015 IL App (1st) 110580. 1 For the following reasons, we
affirm the circuit court’s decision.
¶3 I. BACKGROUND
¶4 Following a jury trial, defendant was found guilty of two counts of armed robbery and
one count of first degree murder. A fourth charge of attempt murder was nol-prossed by the
State after the jury could not reach a verdict. Defendant waived jury trial for the purposes of
sentencing and the trial court subsequently sentenced defendant to natural life without
possibility of parole on the murder conviction and two concurrent 30 year-terms on the
armed robbery convictions. Defendant is challenging only his life sentence without parole.
Accordingly, we will discuss the evidence from his jury trial only to the extent necessary to
understand his sentencing claims.
¶5 A. Jury Trial
¶6 Defendant’s conviction stems from an armed robbery gone wrong. The robbers, a group
of four, included defendant, Michael Boyd, Patricia Bass, and Kevin Walton. The target was
a tavern owned by the victim, Wojtek Rutkowski, and his wife, Halina. Around 2 a.m. on
September 21, 1986, Maciej Grzyna was bartending for the Rutkowskis when he heard the
sound of glass breaking. He turned towards the sound and saw a black man climbing across
the bar. The man grabbed Grzyna’s hair and held a gun to his head. Although in close
proximity to the offender, Grzyna was unable to later positively identify defendant as the
person who held the gun to his head.
1
Defendant’s petition for postconviction relief was filed on April 7, 2016 and cited People v.
House, 2015 IL App (1st) 110580 as the basis for his petition. This opinion has since been vacated.
See People v. House, No. 122134 (Ill. Nov. 28, 2018) (supervisory order). Briefing in this appeal was
completed on May 22, 2019. A modified opinion was issued on June 27, 2019 but has not yet been
released for publication. See People v. House, 2019 IL App (1st) 110580-B, pet. for leave to appeal
pending, No.125124 (motion for extension of time for filing allowed to Sept. 30, 2019).
-2-
No. 1-16-2016
¶7 As Grzyna stood there, a woman came behind the counter and removed money from the
cash register. Grzyna also saw the two remaining patrons in the tavern laying on the ground
and two unknown individuals standing by the front door. Gryzna testified that the gunman
began backing away while keeping the gun pointed at him. One of the patrons attempted to
grab a barstool to hit the gunman, but was stopped by one of the men by the door. The patron
dropped the barstool which crashed into the pool table. At this point, Wojtek ran into the
tavern.
¶8 The Rutkowskis had been asleep in their apartment which was attached to the tavern.
Wojtek came in through the rear door, dressed in only his underwear. He started shouting for
the police when he was shot twice by the gunman. The gunman and woman ran out of the
tavern and Grzyna turned his attention to Wojtek who had collapsed in the hallway. There
was some conflicting testimony about Gryzna’s description of the gunman, specifically the
type of facial hair present. Defense counsel also contrasted Gryzna’s earlier statements to the
police that he was certain he could identify the gunman if he saw him again with the
unsuccessful lineup conducted a month after the offense.
¶9 Halina testified that Wojtek woke up and ran to the tavern. She followed behind him and
heard Wojtek shouting “police.” She ran outside, thinking that she could use her neighbor’s
phone, before she remembered the tavern’s kitchen also had a phone. As she was running to
the kitchen, she saw Wojtek falling in the hallway. Around this time, she noticed her right
arm was bleeding and later realized she had been hit by a bullet. Halina viewed a lineup in
October but did not identify defendant. The two bar patrons did not testify, but the police
testimony revealed that they had also viewed the lineup and were unable to identify
-3-
No. 1-16-2016
defendant. No forensic evidence conclusively tying defendant to the offense was entered into
the record.
¶ 10 The State also presented testimony from Willie Anderson, who stated that defendant had
disclosed to him his role in the armed robbery. Anderson was arrested on October 16, 1986
on separate armed robbery charges. Anderson later received a plea deal on those charges in
exchange for his testimony against defendant. Anderson testified that he had known
defendant for approximately eight or nine months. Defendant frequented the bar where
Anderson worked, and although he did not know his last name, Anderson considered
defendant a friend. In early October, Anderson ran into defendant at a liquor store that also
functioned as a lounge, which they both frequented. Anderson and defendant spoke about the
robbery on September 21, 1986, and defendant admitted he had shot the victim who was
trying to run away. Defendant also named Boyd and Walton, by nickname, as participants in
the robbery and made references to a “b***” that Anderson testified was a reference to Bass.
Anderson also testified that he had seen defendant carrying a firearm, approximately three
times prior, which matched the caliber of bullets (.380) which had killed Wojtek.
¶ 11 Defendant did not testify at trial, but a detective testified that defendant was arrested on
October 20, 1986. The detective had interviewed defendant after he waived his Miranda
rights. Defendant was also interviewed separately by an assistant state’s attorney. Defendant
gave an official statement, later that night, with the detective, two assistant state’s attorneys,
and a court reporter present which was transcribed and read into the record at trial.
¶ 12 The statement, recorded at 1 a.m. on October 21, 1986, began with a recitation of
defendant’s rights. Defendant stated that around 1 a.m. on September 21, Boyd had picked
defendant up from the liquor store/lounge to participate in a “stick-up” of a tavern. Boyd
-4-
No. 1-16-2016
drove defendant, Bass, and Walton to the tavern, parking a block away. Defendant was aware
of the plan to rob the tavern and that Boyd and Walton were carrying guns, a .380 and .44,
respectively. At the tavern, Bass went in first, followed by defendant, and then Boyd and
Walton.
¶ 13 Defendant stated that he went over the top of the counter to where the bartender was
standing. Defendant acknowledged that his role in the robbery was “to make sure the
bartender didn’t try anything[.]” Bass also came behind the counter to get the money, but
Boyd and Walton stayed by the door. Defendant stated that Boyd had “one man by the neck”
and was threatening to shoot if the man moved. Walton was also “tangling” with another man
who was trying to run out the door. Defendant testified he was standing there for about 30
seconds when Wojtek came in through the back door, in nothing but his underwear.
Defendant stated that Boyd shot Wojtek once, and his gun jammed, but Boyd was able to fire
a second shot after the jam.
¶ 14 Defendant stated that after the shots were fired, Walton ran out the door first, followed by
defendant, then Boyd, and the last to leave was Bass. The four ran to Boyd’s car and then
drove to Boyd’s house where they divided the money, each taking approximately $30.
Defendant’s statement ended with him confirming he was speaking of his own free will and
had been treated well while in custody.
¶ 15 At the close of evidence and arguments, the court instructed the jury. The instructions
included Illinois Pattern Jury Instructions, Criminal, No. 5.03 (1986) which read, “A person
is legally responsible for the conduct of another person when, either before or during the
commission of an offense, and with the intent to promote or facilitate the commission of an
-5-
No. 1-16-2016
offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in
the planning or commission of an offense.” The court also instructed the jury that,
“To sustain the charge of murder, the State must prove the following propositions:
First, that the Defendant, or one for whose conduct he is legally responsible,
performed the acts which caused the death of Wojtek Rutkowski; and Second, that
when the Defendant, or one for whose conduct he is legally responsible, did so, he
intended to kill or do great bodily harm ***; or he knew that his acts would cause
death or great bodily harm; or he knew that his acts created a strong probability of
death or great bodily harm***; or he [was] committing the offense of armed
robbery.”
The jury verdict, signed by all members of the jury, in contrast simply stated, “We, the jury,
find the defendant, Earl Harris, Jr., Guilty of the offense of Murder.”
¶ 16 B. Sentencing Hearing
¶ 17 Defendant was eligible for the death penalty because he was 20 years old at the time of
the offense and the court found that an aggravating factor, as outlined in section 9-1(b)(6),
was present in the circumstances of the murder. See Ill. Rev. Stat. 1985, ch. 38, ¶ 9-1(b)(6)).
However, the court did not impose the death penalty and sentenced defendant under the
applicable statutory terms which provided that sentences for murder “shall be not less than 20
years and not more than 40 years” unless the court found aggravating factors, then, “the court
may sentence the defendant to term of natural life imprisonment[.]” Ill. Rev. Stat. 1985, ch.
38, ¶ 1005-7-8.
¶ 18 At the sentencing hearing, the State presented evidence from seven Chicago police
officers regarding defendant’s criminal history as a teenager. These offenses included
-6-
No. 1-16-2016
burglary of a school, robbery, residential burglary, “strong armed robbery,” and aggravated
battery. The State also urged the court to consider the facts of the crime, the seriousness of
the offense, and defendant’s presentencing investigation report.
¶ 19 The presentencing investigation report reflected defendant’s convictions as an adult,
including counts of theft, retail theft, disorderly conduct, and criminal damage to property. A
record of defendant’s other arrests which did not result in convictions was also attached.
Defendant did not complete his last year of high school, citing “family difficulties,” but he
had aspirations to take vocational courses in electronics or welding. He did not work
regularly, but had held part-time jobs in the past. Prior to his arrest, defendant received
“general assistance” which amounted to $154 per month. Defendant admitted gang
membership, but only from 1984 to 1985, and denied having any physical or mental health
issues. He also stated he had tried marijuana at 18, but did not continue smoking. He could
not remember when he started drinking, but denied any problems with alcohol or other drug
use. He mostly got along with his family, but had some problems with his dad who he felt
was too strict.
¶ 20 Defendant’s mother testified that defendant was the oldest of seven children, he had not
completed high school beyond the 11th grade, and he lived with her and five of his siblings at
the time of the offense. She had divorced defendant’s father when defendant was two years
old, but defendant had contact with his father and had lived with him for some time as a
teenager. When defendant was in school, his mother considered him an average student with
his grades in the B-C range, and she stated she “never had to go to school for him” implying
that he did not cause any trouble at school. She further testified that defendant was non-
violent, well behaved, and helped around the house with laundry, cooking, and cleaning. She
-7-
No. 1-16-2016
acknowledged that he had been arrested a few times in 1980 and even served one or two
years at the Department of Corrections in St. Charles as a juvenile, but he had also worked
part-time and contributed to the household after dropping out of school.
¶ 21 After her testimony, the court responded that it could not see how defendant’s mother
could testify defendant was “well behaved” where she was aware of his multiple arrests
resulting in time served in the Department of Corrections. The court continued, stating that it
found defendant had been the “primary mover” in the murder and there was no strong
provocation justifying the offense, especially where the victim was unarmed. The court noted
that it would not be an excessive hardship on defendant’s family if he was incarcerated as he
did not work consistently and was not an “earner” for the household. The court also
commented that defendant’s background was full of misdemeanors which was an indicator of
his character and attitude. The court found that defendant had not expressed any remorse for
killing the victim. Defendant was given the opportunity to address the court and admitted to
the foolishness of his past crimes. However, he insisted he was innocent of murder and asked
the court to consider that no witness had clearly identified him as the shooter responsible for
the victim’s death. The court responded that it had considered all the evidence presented at
trial which the court had earlier concluded sufficiently supported finding defendant was the
shooter.
¶ 22 The court continued and called defendant, “a dangerous young man” who was “not fit to
mingle with other human beings, except those who are exactly like you.” The court further
stated that defendant had “got[ten] worse” as he aged, and had committed an unnecessary,
cold-blooded murder. The court noted it would “take into consideration [defendant’s] age”
and acknowledged that defendant’s criminal history involved nonviolent offenses, the
-8-
No. 1-16-2016
majority of which occurred when defendant was a juvenile. Nonetheless, the court’s thinking
was affected by the seriousness of the crime; thus, the court ordered a life sentence instead of
the death penalty.
¶ 23 C. Postconviction Challenges
¶ 24 Defendant’s convictions and life sentence were affirmed by this court over his challenges
on direct appeal concerning prosecutorial misconduct, abuse of discretion in sentencing, and
disparate sentencing compared to other parties involved in the robbery. Defendant’s first pro
se petition for postconviction relief in 1995 claimed ineffective assistance of trial and
appellate counsel, denial of his right to testify, and prosecutorial misconduct. However, the
petition was dismissed for raising issues that should have been challenged, or were already
dealt with, in his direct appeal. The dismissal was affirmed on appeal. In 2001, defendant
sought leave to file a second petition for postconviction relief arguing that his sentence
violated the principles established in Apprendi v. New Jersey, 530 U.S. 466 (2000). This
petition was summarily dismissed as frivolous and patently without merit and the order was
affirmed on appeal.
¶ 25 In 2016, defendant sought leave once again to file a successive petition for postconviction
relief relying on this court’s decision in House, 2015 IL App (1st) 110580, to argue that his
sentence violated the proportionate penalties clause of the Illinois Constitution. Defendant
asserted that House recognized young adults, which includes persons between 18 and their
mid-20s, are similar to juveniles for purposes of sentencing. Thus, he argues that his life
sentence without parole, imposed under a statutory scheme which gave no consideration to
his young age, was improper. The circuit court order, entered on June 10, 2016, found that
House was narrowly decided and defendant could not demonstrate a basis for applying the
-9-
No. 1-16-2016
analysis in House to his case. Thus, the court dismissed defendant’s petition as frivolous and
patently without merit, where defendant could not demonstrate cause and prejudice to justify
allowing the successive petition for postconviction relief. Defendant now appeals the court’s
dismissal and requests that this court vacate his sentence and remand for re-sentencing, or in
the alternative, reverse the court’s dismissal of his petition, assign counsel to his case, and
remand for further postconviction proceedings.
¶ 26 II. ANALYSIS
¶ 27 The Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 to 122-8
(West 2016)) provides a mechanism for criminal defendants to challenge their conviction or
sentence by alleging a substantial denial of their rights under the United States Constitution,
the Illinois Constitution, or both. Id. § 122-1(a)(1); People v. Coleman, 183 Ill. 2d 366, 378-
79 (1998). Postconviction relief is limited to constitutional deprivations that occurred at the
original trial or sentencing hearing. Coleman, 183 Ill. 2d at 380. “A proceeding brought
under the [Post-Conviction Act] is not an appeal of a defendant’s underlying judgment.
Rather, it is a collateral attack on the judgment.” People v. Evans, 186 Ill. 2d 83, 89 (1999).
“The purpose of [a postconviction] proceeding is to allow inquiry into constitutional issues
relating to the conviction or sentence that were not, and could not have been, determined on
direct appeal.” People v. Barrow, 195 Ill. 2d 506, 519 (2001).
¶ 28 Generally, a defendant may file only one postconviction petition. People v. Davis, 2014
IL 115595, ¶ 14; 725 ILCS 5/122-1(f) (West 2016). A defendant may file a successive
postconviction petition upon obtaining leave of the court to do so. People v. Edwards, 2012
IL 111711, ¶ 24. Courts shall grant leave to file a successive postconviction petition where a
defendant can establish “cause and prejudice.” Davis, 2014 IL 115595, ¶ 14; 725 ILCS
- 10 -
No. 1-16-2016
5/122-1(f) (West 2016). Cause is established when “some objective factor external to the
defense” impeded efforts to raise the claim in an earlier proceeding. Davis, 2014 IL 115595,
¶ 14. Prejudice is established when “a claimed constitutional error [occurred] that so infected
the entire trial that the resulting conviction or sentence violates due process.” Id. We review
de novo the question of whether the defendant's pleadings satisfied the cause-and-prejudice
test, such that the circuit court should have granted his motion for leave to file a second
successive postconviction petition. See People v. Edwards, 2012 IL App (1st) 091651, ¶ 25.
¶ 29 Defendant raises only one issue on appeal, that Illinois courts have, in recent years,
extended the protections offered to juvenile defendants in sentencing to “young adults,” such
as himself, where he was 20 years old at the time of his offense. Thus, he asserts that the
circuit court erred in denying leave to file a successive petition for postconviction relief.
Defendant maintains that his petition has sufficiently pled cause and prejudice where he was
prevented from filing this claim earlier, as the jurisprudence did not exist at the time of his
conviction and sentencing, and he was prejudiced by the unconstitutional life sentence
without possibility of parole.
¶ 30 The State contends that the jurisprudence relied on by defendant does not go as far as
extending protections, under the eighth amendment or the proportionate penalties clause, to
young adults who, like defendant, received discretionary life sentences. Thus, the State
asserts that leave to proceed with defendant’s successive postconviction petition was
properly dismissed because defendant could not establish a prima facie case for cause or
prejudice.
¶ 31 A. Eighth Amendment
- 11 -
No. 1-16-2016
¶ 32 We first note that defendant’s pro se petition for postconviction relief only contained
allegations that his sentence violates the proportionate penalties clause of the Illinois
Constitution; however, on appeal defendant also argues that his sentence violates the eighth
amendment of the United States Constitution. Section 122-2 of the Postconviction Act
requires that defendant “clearly set forth the respects in which petitioner's constitutional
rights were violated.” 725 ILCS 5/122-2 (West 2016). “Any claim of substantial denial of
constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS
5/122-3 (West 2016).
¶ 33 Here, defendant’s petition was dismissed in the first stage of proceedings which has a very
low bar. People v. Gaultney, 174 Ill. 2d 410, 418 (1996) (To survive first-stage dismissal, a
pro se petitioner need only present the “gist” of a constitutional claim, which is a “low
threshold” requiring only a limited amount of detail in the petition.) “The question raised in
an appeal from an order dismissing a post-conviction petition is whether the allegations in the
petition, liberally construed and taken as true, are sufficient to invoke relief under the Act.”
Coleman, 183 Ill. 2d at 388. Thus, “a defendant may not raise an issue for the first time while
the matter is on review.” Jones, 211 Ill. 2d at 148.
¶ 34 Notwithstanding a party’s waiver, our courts have long exercised the ability to reach
issues in order maintain a sound and uniform body of precedent and arrive at a just result.
See People v. Jones, 211 Ill. 2d 140, 145 (2004); Ill. S. Ct. R. 615(a) (“Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention of
the trial court”). As eighth amendment and proportionate penalties challenges are often raised
hand in hand, and defendant does reference the Supreme Court cases which discuss the
- 12 -
No. 1-16-2016
eighth amendment in his pro se petition, we will address the merits of defendant’s arguments
on appeal despite the narrow allegations specified in his petition.
¶ 35 The eighth amendment of the United States Constitution prohibits “cruel and unusual
punishment” and is applicable to the states through the fourteenth amendment. U.S. Const.,
amends. VIII, XIV; People v. Davis, 2014 IL 115595, ¶ 18. “Cruel and unusual” refers not
only to “inherently barbaric punishments” but those “disproportionate to the crime.” Graham
v. Florida, 560 U.S. 48, 59 (2010). In Miller v. Alabama, 567 U.S. 460, 465 (2012), 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.'”
¶ 36 Defendant bases his eighth amendment challenge under Miller on an apparent judicial
trend to denounce a bright-line rule at 18 years old. He also raises arguments that there is no
real distinction between mandatory and discretionary in sentencing young offenders to life in
prison. He argues that he should have been afforded a sentencing hearing which comports
with the protections of the eighth amendment, giving consideration to his young age,
diminished culpability, and other attendant circumstances of youth. Although defendant was
20 years old during the commission of the offense, he points to House, 2015 IL App (1st)
110580, People v. Williams, 2018 IL App (1st) 151373, 2 Cruz v. United States, 2018 WL
1541898 (D. Conn. 2018), and State v. Sweet, 879 N.W. 2d 811 (Iowa 2016), as support for
his argument that Miller may be extended to “young adults” like himself.
2
People v. Williams, 2018 IL App (1st) 151373, was vacated on February 2, 2019 after the Illinois
Supreme Court issued a supervisory order directing the appellate court to consider the effect of
People v. Harris, 2018 IL 121932, on the defendant’s proportionate penalties claims. On remand, the
matter was set for supplemental briefing and later resolved on summary disposition by agreed order
without an opinion.
- 13 -
No. 1-16-2016
¶ 37 Defendant neglects this court’s ruling in People v. Pittman, 2018 IL App (1st) 152030,
which explicitly rejected extending an as-applied eighth amendment challenge under Miller
to an adult offender, even if considered a “youthful” offender. 2018 IL App (1st) 152030, ¶¶
29-31 (applying the reasoning from People v. Thomas, 2017 IL App (1st) 142557, where the
court found that de facto life sentences for an 18-year-old defendant did not implicate the
eighth amendment, to mandatory life sentences for adult offenders). The defendant in
Pittman was 18 years old at the time he murdered three people and was sentenced to
concurrent, mandatory natural life sentences on each conviction. Id. ¶¶ 16-18. Our supreme
court has also rejected facial challenges seeking to extend Miller to offenders 18 or older. See
People v. Harris, 2018 IL 121932, ¶ 61. Accordingly, we reject defendant’s request to find
that Miller may be extended to his case, where he was 20 years old at the time he committed
murder.
¶ 38 We further note that the written opinions in House, 2015 IL App (1st) 110580, and
Williams, 2018 IL App (1st) 151373, which defendant cites have since been vacated, and
even if they had not been, neither case was decided on eighth amendment grounds. The court
determined that the defendants had successfully raised as-applied challenges under the
proportionate penalties clause of the Illinois Constitution. Although an analysis of the
proportionate penalties clause is driven in part by considerations of Miller principles, they do
not provide support for extending eighth amendment protections. 3
¶ 39 Additionally, “decisions from our sister state courts are not binding on the courts of this
state.” In re Scarlett Z.-D., 2015 IL 117904, ¶ 55 (citing Illinois Bell Telephone Co. v.
3
Defendant also cites the modified opinion in House, 2019 IL App (1st) 110580-B, in his reply
brief, for the same argument; however, the modified opinion, like the vacated 2015 opinion, does not
decide the case on eighth amendment grounds and does not stand for the proposition that federal
eighth amendment protections may be extended to those over 18 years of age.
- 14 -
No. 1-16-2016
Industrial Comm'n, 131 Ill. 2d 478, 489 (1989)). Even if we considered Sweet, the case from
the Supreme Court of Iowa as persuasive authority, we cannot overlook the fact that it was
decided under the Iowa Constitution’s cruel-and-unusual punishment clause, see Iowa
Const., art. 1, § 17, and adopted a categorical rule regarding life sentences for juvenile
offenders. Sweet, 879 N.W. 2d 811, 839 (Iowa 2016). Thus, it is not helpful for finding a
violation of the eighth amendment in defendant’s case.
¶ 40 Lastly, defendant cites to a case in which a federal district court has specifically applied
the Miller eighth amendment analysis to a defendant over the age of 18. In Cruz, the
defendant was a gang member, having joined when he was 15, who was ordered to carry out
a murder. Cruz, 2018 WL 1541898, *1. The defendant testified that he attempted to leave the
gang before he was ordered to kill someone, but was unsuccessful and he feared reprisals for
his “act of disrespect.” Id. When the defendant was 18 years and 5 months old, he and
another gang member shot and killed two people, one being the target of the kill order and
the other, an unlucky friend of the target. Id. The defendant was convicted and given
mandatory life sentences without parole for each murder in addition to sentences on
racketeering convictions. Cruz, 2018 WL 1541898, *2.
¶ 41 The federal district court found that although Miller had announced a rule applicable to
children under 18, it had not held that youth over the age of 18 could not be subject to the
same rule. Cruz, 2018 WL 1541898, *14-15. The district court reasoned that judicial
restraint, and the fact that Miller involved a juvenile defendant, limited the Supreme Court’s
ruling; but the Supreme Court’s ruling is not contradicted by applying the same principles to
young offenders over the age of 18. Id. The district court acknowledged that it was
disagreeing with a number of other courts which had previously declined to apply Miller to
- 15 -
No. 1-16-2016
defendants 18 or over. Cruz, 2018 WL 1541898, *16 (listing cases). However, the court
noted its conclusion was supported by the extensive scientific evidence in the record before it
regarding adolescent brain development as well as changes reflecting an emerging trend for
treating 18-year-olds differently seen in legislative enactments, the statistics for actual use of
mandatory life without parole sentencing, and other important societal lines distinguishing
18-year-olds from mature adults. Cruz, 2018 WL 1541898, *16-22.
¶ 42 However, the district court explicitly declined to extend any consideration to 19-, 20-, or
21-year-old defendants. The court noted, “that it need only decide whether the rule in Miller
applies to an 18-year-old.” Cruz, 2018 WL 1541898, *18. Thus, we find Cruz does not
support defendant’s argument. As we decline to extend the Miller eighth amendment analysis
to a 20-year-old defendant, we need not address defendant’s arguments regarding the
distinction between a mandatory and discretionary sentence which is another distinguishing
fact between defendant’s sentence and the defendant in Cruz.
¶ 43 B. Proportionate Penalties
¶ 44 The Illinois 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. To succeed on a claim under the proportionate
penalties clause, the defendant must show either (1) that the punishment for the offense is
cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of
the community, (2) that similar offenses are compared and the conduct that creates a less
serious threat to the public health and safety is punished more harshly; or (3) that identical
offenses are given different sentences. People v. Klepper, 234 Ill. 2d 337, 348-49 (2009); see
also People v. Miller, 202 Ill. 2d 328, 338 (2002) (“Leon Miller”).
- 16 -
No. 1-16-2016
¶ 45 Defendant primarily asserts that his sentence is unconstitutional because it “shocks the
moral sense of the community” where the court did not consider the characteristics of his
youth and the effect of his youth on his conduct during the sentencing hearing. He mentions
briefly several other arguments such as, the lack of opportunity for him to demonstrate
growth and maturity, the lack of consideration given to his brain development as a young
adult and his family circumstance, and the fact that the other robbers 4 received lesser
sentences.
¶ 46 We examine House, which defendant attempts to analogize to his case, but we find it
distinguishable. In House, the 19-year-old defendant was present and carrying a firearm
when the victims, who were later executed, were forced into a vehicle at gunpoint, and he
admitted to acting as the lookout. House, 2019 IL App (1st) 110580-B, ¶¶ 5, 34. The
defendant was sentenced under a theory of accountability and received a mandatory life
sentence because more than one victim was murdered. Id. ¶ 29. In finding the sentencing
statute unconstitutional as applied to the defendant, this court noted that the defendant (1)
was young, (2) was not present at the scene of the murder, (3) solely acted as a lookout, and
(4) did not help in planning the crime. Id. ¶ 46. Moreover, this court noted that the defendant
did not have a history of violent crimes, never knew his father, was raised by his
grandmother, and did not graduate from high school. Id. ¶ 63. Lastly, this court found that
although the trial court was able to consider these mitigating factors in declining to impose
the death penalty, these mitigating factors were not available to the trial court in determining
the term of sentencing due to the statutorily mandated life sentence. Id. ¶ 64. Therefore, this
court determined that the defendant’s mandatory sentence of natural life shocked the moral
4
Defendant’s challenge to the apparent disparity in sentencing was already addressed and rejected
in his direct appeal and will not be re-examined here. See People v. Harris, 256 Ill. App. 3d 1100(1994) (table) (unpublished order under Supreme Court Rule 23).
- 17 -
No. 1-16-2016
sense of the community and a new sentencing hearing was warranted to allow the trial court
to consider relevant mitigating factors. Id. ¶¶ 64-65.
¶ 47 First, defendant touches briefly on a claim that he was charged under a theory of
accountability and argues that the evidence and the jury verdict were ambiguous as to
whether he was the shooter. We acknowledge that defendant was found guilty of murder by
the jury. In a death penalty case, the court or jury must proceed after the guilty verdict to the
sentencing phase and consider whether the State established any of the aggravating factors,
beyond a reasonable doubt, and may only consider such evidence that would also have been
admissible during trial. See Ill. Rev. Stat. 1985, ch. 38, ¶ 9-1. Accordingly, even if a jury
instruction on accountability was given during the conviction phase of trial, the sentencing
phase is considered separately.
¶ 48 As defendant waived jury trial for sentencing, it was proper for the trial court to make its
own determination regarding the presence of aggravating factors. The trial court here found
that the circumstances of the murder constituted an aggravating factor as listed under 9-
1(b)(6). See Ill. Rev. Stat. 1985, ch. 38, ¶ 9-1(b)(6). Section 9-1(b)(6) provided that the
defendant is eligible for the death penalty if the victim was killed during the commission of
another felony (e.g. armed robbery), that the defendant actually killed the victim, and that the
defendant intended to kill or knew of the strong probability that death or great bodily harm
would occur. Id. Thus, the court found that defendant was actually responsible for the
victim’s death during the sentencing phase and he was not sentenced under a theory of
accountability.
¶ 49 This court in House further noted that the “defendant’s conviction under the theory of
accountability weighed heavily in [its] conclusion that his mandatory natural life sentence
- 18 -
No. 1-16-2016
shocked the moral conscience of the community.” House, 2019 IL App (1st) 110580-B, ¶ 32.
Accordingly, we find that defendant’s case is significantly different from House where the
theory of accountability was not considered when the trial court determined his sentence. See
also People v. Ybarra, 2016 IL App (1st) 142407, ¶ 27 (This court found that the reasoning
in House, 2015 IL App (1st) 110580, was inapplicable where the 20-year-old defendant was
the one who pulled the trigger).
¶ 50 Even if defendant was not the one who pulled the trigger, as he maintains, his level of
culpability is greater than that of the defendant in House. Here, defendant was present at the
scene of the murder and acted as more than a mere lookout. He went into the tavern,
brandishing a firearm, with the intention of intimidating the bartender, to facilitate the
robbery. He also knew that Boyd and Walton were carrying firearms. Therefore, defendant
was aware of the strong probability that someone could be shot, die or be seriously injured
during the robbery. Given the defendant’s actions during the robbery, we distinguish his case
from House and decline to find that his sentence violates the proportionate penalties clause.
¶ 51 We further note that defendant’s sentence was imposed as an exercise of the trial court’s
discretion. The trial court had the discretion to consider mitigating factors and impose a
lesser sentence. However, the court declined to do so. Defendant argues that the court did not
consider the proper factors, which were detailed in Miller and have since been codified by
the Illinois legislature. These factors include:
“(1) the person's age, impetuosity, and level of maturity at the time of the offense,
including the ability to consider risks and consequences of behavior, and the presence
of cognitive or developmental disability, or both, if any; (2) whether the person was
subjected to outside pressure, including peer pressure, familial pressure, or negative
- 19 -
No. 1-16-2016
influences; (3) the person's family, home environment, educational and social
background, including any history of parental neglect, physical abuse, or other
childhood trauma; (4) the person's potential for rehabilitation or evidence of
rehabilitation, or both; (5) the circumstances of the offense; (6) the person's degree of
participation and specific role in the offense, including the level of planning by the
defendant before the offense; (7) whether the person was able to meaningfully
participate in his or her defense; (8) the person's prior juvenile or criminal history;
and (9) any other information the court finds relevant and reliable, including an
expression of remorse, if appropriate. However, if the person, on advice of counsel
chooses not to make a statement, the court shall not consider a lack of an expression
of remorse as an aggravating factor.”
730 ILCS 5/5-4.5-105(a)(1)-(9) (West 2018).
¶ 52 Defendant argues that the court should have considered how the circumstances of the
offense are indicative of the impulsive nature of his young age at the time. He asserts that his
role was minimal, continuing to deny that he was the shooter, and due to his reckless
immaturity, he was easily encouraged by the prompting of the older Boyd to participate in
the robbery. However, defendant has failed to allege any specific factors that would come out
in a new sentencing hearing sufficient to change his sentencing outcome.
¶ 53 Even if special consideration was given to his family circumstance and the particular
aspects of his young age, the record shows that defendant was 20 years old; he did not have
mental or physical disabilities, addiction issues, a history of abuse or neglect, difficulty
participating in his defense, or pressures from gang influences or family issues. It also shows
that he had a criminal history as a juvenile and adult, which largely consisted of
- 20 -
No. 1-16-2016
misdemeanors. He had served time in the department of corrections as a juvenile and
nevertheless returned to his criminal behavior exhibiting a diminished capacity for
rehabilitation. Additionally, the trial court was better suited to determine defendant’s degree
of participation and specific role in the offense as well as the circumstances of the offense, a
determination we will not second-guess here. The trial court also heard testimony from
defendant’s mother and reviewed the presentencing investigation report which did not exhibit
any particular circumstances warranting leniency. At most, defendant stated his father was
“too strict” and his parents had divorced. Even though his parents were divorced, there were
no reports of abuse, neglect, or other childhood trauma. Defendant did not complete high
school, but according to his mother, he did not have trouble in school through the 11th grade.
The reasons for his dropping out of school are unclear, but afterwards he was able to hold
down part-time jobs and contribute to the household. Thus, even giving consideration to the
Miller factors as codified, we would not find a reason to reverse defendant’s sentence.
¶ 54 Although we are sympathetic to defendant’s hardship, where his foolish decision to
participate in an armed robbery resulted in a murder conviction, it does not change the fact
that defendant was legally an adult at the time of the offense. During sentencing, the trial
court had the discretion to sentence defendant to as few as 20 years; however, the court chose
to impose a life sentence without possibility of parole. In so doing, the court considered that
defendant was the “primary mover,” had a history of misdemeanors, and did not change his
behavior after an earlier term in the department of corrections. We find that the discretionary
life sentence imposed in this case does not shock the moral sense of the community and does
not violate the proportionate penalties clause of the Illinois Constitution.
¶ 55 III. CONCLUSION
- 21 -
No. 1-16-2016
¶ 56 For the reasons stated, we affirm the dismissal of defendant’s successive petition for
postconviction relief.
¶ 57 Affirmed.
- 22 -