People v. Johnson

NOTICE
2013 IL App (5th) 110112
Decision filed 10/09/13. The text of
this decision may be changed or
NO. 5-11-0112
corrected prior to the filing of a
Petition for Rehearing or the
IN THE
disposition of the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 99-CF-995
)
COREY JOHNSON, ) Honorable
) Jan V. Fiss,
Defendant-Appellant. ) Judge, presiding.

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
Justices Stewart and Wexstten concurred in the judgment and opinion.

OPINION
¶ 1 Defendant, Corey Johnson, age 16 at the time of offenses in 1999, was tried as an

adult and convicted of first-degree murder (720 ILCS 5/9-1(a) (West 1998)) in the shooting

deaths of Charles Evans, age 37 at the time of his death, and Jeremiah Scott, age 18 at the
time of his death. The prosecution's theory was that defendant shot Evans and Scott during
an attempted carjacking. Prior to trial, the defendant told police he shot Evans and Scott in

self-defense after they kidnapped him. At trial, defendant changed his story and testified he
got into the car to show Evans and Scott where to buy crack cocaine. He testified that instead
of following his directions, they told him they wanted to buy crack in St. Louis and began

driving in that direction, at which point defendant began to fear for his life. Defendant
testified that there was a struggle for the gun which resulted in the deaths of Evans and Scott.

The jury found defendant guilty on both counts.
¶ 2 A presentence investigation report showed that defendant had two prior incidents of

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delinquency. On November 14, 1997, defendant admitted to a delinquency/residential

burglary petition and was placed on one year's probation, which he successfully completed.
On May 27, 1999, defendant admitted to a delinquency/burglary petition and was placed on
one year's probation, which was not successfully completed due to the murders of Evans and
Scott. The presentence investigation further showed defendant violated the inmate discipline
code on six occasions while awaiting trial at the St. Clair County jail. These violations led

to loss of privileges and lockdown. The presentence investigation showed that defendant

completed his GED.
¶ 3 A pretrial psychiatric evaluation concluded that defendant has a low frustration
tolerance level and revealed that he had been hospitalized when he was eight years old for

psychiatric reasons at the request of a Department of Children and Family Services counselor
for aggression, including fire-setting, but had never received any psychotropic medication.

During the evaluation by the psychiatrist, defendant admitted to occasionally smoking

marijuana and a long history of alcohol abuse. By age 14, defendant was drinking daily and

had experienced memory lapses. He continued to drink excessively until the time of his

incarceration on the murder charges.
¶ 4 A victim impact statement was submitted by the wife of one of the victims as to how
her husband's murder had adversely affected her. The State argued that pursuant to section

5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West

2002)), the trial court was required to sentence defendant to a mandatory term of natural life
in prison. Defense counsel agreed that, pursuant to the statute, the trial court lacked
discretion in sentencing, but objected on the basis that "mandatory sentencing is per se

unconstitutional."
¶ 5 On April 15, 2003, the trial court sentenced defendant to a mandatory term of natural
life imprisonment without the possibility of parole. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West

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2002). This court affirmed defendant's conviction on direct appeal on September 8, 2004.

People v. Johnson, No. 5-03-0296 (2004) (unpublished order pursuant to Supreme Court
Rule 23). On January 28, 2005, defendant filed a pro se petition for relief from judgment
(735 ILCS 5/2-1401 (West 2004)), which the trial court dismissed sua sponte. On July 21,
2005, defendant filed an appeal of that ruling and also filed a pro se petition pursuant to the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 2004)) in which he

raised 11 claims of error. On September 8, 2005, the trial court dismissed the petition as

"frivolous and patently without merit," and defendant filed a notice of appeal. The appeals
were consolidated. This court reversed the dismissal of defendant's pro se petition and
remanded for further proceedings. People v. Johnson, 377 Ill. App. 3d 854, 879 N.E.2d 977

(2007).
¶ 6 On November 26, 2008, counsel was appointed to represent defendant in additional

postconviction proceedings. In 2009, defendant filed a pro se petition for new counsel.

After a hearing, the trial court denied defendant's motion to appoint new counsel and gave

defendant the choice of allowing him to keep his previously appointed counsel or proceed

pro se. Defendant chose to proceed pro se. Ultimately, defendant elected to proceed with
a 40-page, single-spaced postconviction petition filed pro se on April 12, 2010, which added
additional arguments to the petition previously addressed by this court. Most of the

allegations raised in the petition pertained to allegations of ineffective assistance of trial and

appellate counsel. Defendant also asserted inter alia that the State presented perjured
testimony at trial and that his sentence of mandatory life in prison failed to reflect his ability
to be rehabilitated and constituted cruel and unusual punishment. The following are

defendant's 19 claims of error:
"1. Defendant was denied due process, a fair trial and effective assistance of
counsel due to trial counsel's failure to interview and investigate witnesses, visit and

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investigate the crime scene, call witnesses to testify, and obtain and present evidence

that would have supported defendant's defense and appellate counsel was ineffective
for failing to raise these issues on direct appeal.
2. Trial counsel was ineffective for failing to preserve defendant's right to
challenge his sentence and the trial judge improperly admonished defendant of his
appeal rights after sentencing and appellate counsel was ineffective for failing to raise

this issue on direct appeal. The petition recounts a colloquy between defense counsel

and the judge about whether the sentence was mandatory. Counsel was required to
file a motion to reconsider sentence prior to filing the notice of appeal.
3. The trial court's denial of defendant's motion to suppress his statements to

police was inconsistent with the evidence presented and both trial counsel and
appellate counsel were ineffective for failing to challenge the ruling.

4. Defendant's mandatory sentence does not reflect his ability to be

rehabilitated and constitutes cruel and unusual punishment.

5. Trial counsel was ineffective in that he advised defendant to stipulate to

illegally obtained evidence, and appellate counsel was ineffective for failing to raise
this issue on appeal.
6. Defendant was denied a fair trial because of improper closing argument and

trial counsel was ineffective for failing to object, and appellate counsel was

ineffective for failing to raise this issue on direct appeal.
7. Defendant was denied a fair trial and effective assistance of counsel because
of counsel's failure to object to the State's knowing use of false testimony at the

suppression hearing, failure to properly prepare for the hearing and make the trial
court aware that defendant had been questioned more times than the State
acknowledged, failure to consult with defendant prior to the suppression hearing, and

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failure to file a motion to suppress all the illegally obtained evidence, and appellate

counsel was ineffective for failing to raise these issues on direct appeal.
8. Trial counsel was ineffective for failing to file a motion to dismiss the
indictment based upon prosecutorial misconduct, the State's knowing use of perjured
testimony at the grand jury proceedings, and appellate counsel was ineffective for
failing to raise this issue on direct appeal.

9. Trial counsel was ineffective for failing to object to prosecutorial

misconduct at trial and failing to allege such misconduct in the motion for a new trial,
and appellate counsel was ineffective for failing to raise this issue on direct appeal.
10. The trial court abused its discretion by allowing Detective Brian Lammers

to testify about a photograph that showed there were no bushes in the area where
defendant initially said he was kidnapped while hiding in said bushes and both trial

counsel and appellate counsel were ineffective for failing to raise this issue.

11. The trial court erred in not appointing new counsel to represent defendant

at sentencing and during the posttrial phase since defendant alleged several instances

of ineffectiveness of trial counsel, and appellate counsel was ineffective for failing
to raise this issue.
12. Defense counsel was ineffective for failing to obtain the results of a urine

specimen taken at the Juvenile Detention Center which would have shown defendant

was intoxicated during at least one of the interview sessions and this would have led
to that statement being suppressed.
13. Defendant was denied a fair trial and due process because of the State's

failure to disclose evidence including statements, names of eye witnesses, and
photographs, and his counsel was ineffective for failing to notify the trial court of the
State's failure to provide such evidence, and appellate counsel was ineffective for

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 failing to raise this issue on direct appeal.

14. Defendant was denied a fair trial, due process, and effective assistance of
counsel due to trial counsel's failure to file a motion in limine to prevent the State
from presenting evidence of defendant's prior bad acts, and appellate counsel was
ineffective for failing to raise this issue on direct appeal.
15. Defendant was denied due process, a fair trial, and effective assistance of

counsel because of trial counsel's failure to tender involuntary manslaughter

instructions and presenting a defense that was not one agreed upon by defendant, and
appellate counsel was ineffective for failing to raise this issue on direct appeal.
16. Defendant was denied due process and effective assistance of counsel due

to the suppression hearing court abusing its discretion by allowing the State to go
beyond the scope of direct examination of defendant, allowing one of the witnesses

to testify for improper reasons and commit perjury, and assisting the State in its case,

and defense counsel was ineffective for not raising this in his motion for a new trial,

and appellate counsel was ineffective for not raising this issue on direct appeal.

17. Defendant was denied due process and a fair trial due to illegal arrest and
evidence obtained therefrom.
18. The cumulative effect of the above mentioned errors deprived defendant

of due process, a fair trial, and effective assistance of counsel.

19. The cumulative effect of the above mentioned errors deprived defendant
of due process and effective assistance of appellate counsel."
In response, on December 11, 2010, the State filed a motion to dismiss defendant's

postconviction petition.
¶7 On February 1, 2011, the circuit court entered an order dismissing defendant's petition.
The circuit court found defendant failed to prove any of his numerous claims of ineffective

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assistance of trial and/or appellate counsel, defendant's claim that the State presented

perjured testimony was without merit, defendant's claim that his rights were violated under
the Convention on the Rights of the Child or the International Covenant on Civil and
Political Rights was without merit in that neither of those documents was applicable to the
instant case and that all judges involved had considered defendant's rights as a juvenile,
Illinois law has upheld the imposition of mandatory natural life sentences for juveniles in

similar cases, and defendant's claims are barred by waiver/forfeiture and his claim concerning

failure to instruct the jury on involuntary manslaughter is barred under the doctrine of res
judicata. The circuit court also found defendant had not been denied the necessary
documents to present his claims.

¶ 8 In this appeal, defendant raises his previous claims, as well as new claims relating to
the automatic transfer statute and the mandatory-natural-life-sentencing statute pursuant to

Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), issued on June 25, 2012, after the

trial court entered its order denying defendant's postconviction petition. In Miller, the

Supreme Court held the federal constitution's ban against cruel and unusual punishment

forbids a mandatory sentence of life imprisonment without the possibility of parole upon
offenders who were under the age of 18 years of age at the time of their offense. The Illinois
Coalition for the Fair Sentencing of Children filed an amicus curiae brief in support of

defendant's request for resentencing in light of Miller. Defendant's brief breaks down his

arguments into six categories: (1) the automatic transfer statute, (2) the mandatory-natural-
life-sentencing statute, (3) claims of ineffective assistance of counsel, violation of a right to
a fair trial, and the prohibition against cruel and unusual punishment, (4) violation of

procedural due process due to failure to hold a hearing and rule on defendant's petition for
contempt prior to conducting a hearing on the State's motion to dismiss, (5) additional claims
of lack of reasonable assistance of counsel due to the circuit court's failure to appoint new

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appellate counsel, and (6) additional errors relating mostly to the circuit court's denial of

defendant's motion to relitigate his motion to suppress statements. After careful
consideration, we affirm in part, but vacate defendant's sentence and remand for a new
sentencing hearing so that defendant's mandatory sentence of natural life in prison without
the possibility of parole is reconsidered in accordance with the principles set forth by the
United States Supreme Court in Miller.

¶ 9 ANALYSIS

¶ 10 The Act provides a mechanism by which state prisoners may collaterally challenge
their convictions and/or sentences for substantial violations of their federal or state
constitutional rights that occurred at their trial and that were not, and could not have been,

previously adjudicated. People v. Whitfield, 217 Ill. 2d 177, 183, 840 N.E.2d 658, 663
(2005). Therefore, res judicata bars issues decided previously on appeal, and issues not

raised, even though they could have been raised on appeal, are waived. People v. Williams,

209 Ill. 2d 227, 233, 807 N.E.2d 448, 452 (2004). This appeal comes to us after a second-

stage dismissal. At a second-stage proceeding, the circuit court must determine whether the

petitioner is indigent, and, if so, whether he wishes to have counsel appointed to represent
him. 725 ILCS 5/122-5 (West 2008). To survive a second-stage dismissal, the
postconviction petition must make a substantial showing of a constitutional violation. People

v. Quigley, 365 Ill. App. 3d 617, 618, 850 N.E.2d 903, 905 (2006). When ruling on a motion

to dismiss a postconviction petition, the circuit court must accept as true all well-pleaded
facts that are not positively rebutted by the record. Williams, 209 Ill. 2d at 233, 807 N.E.2d
at 452. A second-stage dismissal is reviewed de novo. People v. Boyd, 347 Ill. App. 3d 321,

327, 807 N.E.2d 639, 645 (2004).
¶ 11 I and II
¶ 12 Defendant argues that the automatic transfer provision of the Illinois Juvenile Court

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Act of 1987 (705 ILCS 405/5-130(1)(a) (West 2002)) and the mandatory-life-sentencing

statute as applied to defendant, a 16-year-old at the time of the murders, are unconstitutional.
The State replies that defendant's new claims relating to the automatic transfer statute and
the mandatory-natural-life-sentencing statute were not raised in defendant's postconviction
petition and are unreviewable by this court. The State also claims that these arguments could
have been raised on direct appeal and are, therefore, waived. The State further argues these

claims are meritless. We disagree with the State with respect to the mandatory-natural-life-

sentencing statute. As for the automatic transfer statute, even if the issue was properly
raised, which it was not, courts have rejected the arguments defendant raises regarding
substantive and procedural due process, the eighth amendment, and the proportionate-

penalties clause. See People v. Salas, 2011 IL App (1st) 091880, 961 N.E.2d 831.
Defendant has failed to convince us to the contrary.

¶ 13 However, with regard to the mandatory-natural-life-sentencing statute, defendant

specifically challenged the statute under which he was sentenced which mandated a natural

life term without the possibility of parole. In his petition, defendant claimed he "was denied

his constitutional rights under the State and Federal constitutions to effective assistance of
counsel, to have a sentence that reflect [sic] his ability to be rehabilitated, *** and that [his]
sentence is cruel." We also note that Miller v. Alabama has only been recently decided and

to ignore it and its applicability in the instant case would constitute a serious injustice.

¶ 14 The statute under which defendant was sentenced provides:
"(c) the court shall sentence the defendant to a term of natural life
imprisonment when the death penalty is not imposed if the defendant,

***
(ii) is a person who, at the time of the commission of the murder, had
attained the age of 17 or more and is found guilty of murdering an individual

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 under 12 years of age; or, irrespective of the defendant's age at the time of the

commission of the offense, is found guilty of murdering more than one
victim[.]" 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2002).
Our supreme court has found this statute to be unconstitutional as applied to a 15-year-old
defendant who was convicted of murder based upon a theory of accountability. People v.
Miller, 202 Ill. 2d 328, 781 N.E.2d 300 (2002).

¶ 15 In that case, our supreme court held that this statute violated the

proportionate-penalties clause as applied to its defendant, "a 15-year-old with one minute to
contemplate his decision to participate in the incident and stood as a lookout during the
shooting, but never handled a gun." Miller, 202 Ill. 2d at 341, 781 N.E.2d at 308-09.

Accordingly, our supreme court affirmed the trial court's decision to impose a 50-year prison
sentence. Miller, 202 Ill. 2d at 343, 781 N.E.2d at 310. However, the court refused to hold

that a sentence of life imprisonment for a juvenile offender convicted under a theory of

accountability would never be appropriate, as "[i]t is certainly possible to contemplate a

situation where a juvenile offender actively participated in the planning of a crime resulting

in the death of two or more individuals, such that a sentence of natural life imprisonment
without the possibility of parole is appropriate." Miller, 202 Ill. 2d at 341, 781 N.E.2d at
309.

¶ 16 In Miller v. Alabama, the United States Supreme Court considered the appeals of "two

14-year-old offenders *** convicted of murder and sentenced to life imprisonment without
the possibility of parole. In neither case did the sentencing authority have any discretion to
impose a different punishment." Miller, 567 U.S. at ___, 132 S. Ct. at 2460. In that case,

Evan Miller was granted certiorari from a direct appeal, but the other defendant, Kuntrell
Jackson, was before the court on collateral review, specifically the review of the dismissal
of a state habeas petition. Miller, 567 U.S. at __, 132 S. Ct. at 2461-63.

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¶ 17 The Supreme Court relied on its earlier decisions in Roper v. Simmons, 543 U.S. 551

(2005), and Graham v. Florida, 560 U.S. 48 (2010), declaring unconstitutional the
sentencing of a minor to either death or life imprisonment without parole for a nonhomicide
offense. It also noted that it had held unconstitutional the mandatory imposition of a capital
sentence, ruling that the characteristics of a defendant and the details of his offense must be
considered before sentencing him to death. The Supreme Court specifically stated that

"Graham and Roper and our individualized sentencing cases alike teach that in imposing a

State's harshest penalties, a sentencer misses too much if he treats every child as an adult"
because a mandatory sentence "precludes consideration of [the offender's] chronological age
and its hallmark features–among them, immaturity, impetuosity, and failure to appreciate

risks and consequences." Miller, 567 U.S. at ___, 132 S. Ct. at 2468. Following these
precedents, the Supreme Court found as follows:

"[A] judge or jury must have the opportunity to consider mitigating circumstances

before imposing the harshest possible penalty for juveniles. By requiring that all

children convicted of homicide receive lifetime incarceration without possibility of

parole, regardless of their age and age-related characteristics and the nature of their
crimes, the mandatory sentencing schemes before us violate this principle of
proportionality, and so the Eighth Amendment's ban on cruel and unusual

punishment." Miller, 567 U.S. at __, 132 S. Ct. at 2475.

However, the Supreme Court refused to categorically declare that a juvenile can never
receive a life sentence without the possibility of parole for a homicide offense and
distinguished earlier decisions in which mandatory natural life imprisonment of adults was

upheld. Miller, 567 U.S. at __ , 132 S. Ct. at 2469-70 (citing Harmelin v. Michigan, 501
U.S. 957 (1991) (which upheld a mandatory sentence of life without the possibility of parole
for possession of more than 650 grams of cocaine)). Nevertheless, the Court stated, "[G]iven

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all we have said in Roper, Graham, and this decision about children's diminished culpability

and heightened capacity for change, we think appropriate occasions for sentencing juveniles
to this harshest possible penalty will be uncommon." Miller, 567 U.S. at __, 132 S. Ct. at
2469. Thus, according to the Supreme Court's dictate in Miller, a defendant under the age
of 18 cannot be automatically sentenced to life imprisonment without the possibility of
parole, as was the defendant in the instant case.

¶ 18 The amicus brief contains an argument that the statute under which defendant was

sentenced is void ab initio. However, it is clear that Miller in no way affects the validity of
the natural-life-imprisonment statute as to defendants under the age of 18 and does not
deprive or divest a state of its authority to sentence a juvenile defendant at the time of the

offense, such as defendant herein. See People v. Williams, 2012 IL App (1st) 111145, ¶ 46,
982 N.E.2d 181; People v. Morfin, 2012 IL App (1st) 103568, ¶ 40, 981 N.E.2d 1010. The

question then becomes, Does Miller apply retroactively?

¶ 19 Both sides raise numerous arguments and cite an abundance of authority as to whether

or not Miller should apply retroactively, i.e., whether Miller constitutes a procedural change

or whether it constitutes a substantive change, which should or should not be applied
retroactively. We recognize that the State has a legitimate interest in the finality of criminal
convictions and, therefore, new constitutional rules of criminal procedure are generally not

applied retroactively to cases on collateral review. People v. Sanders, 238 Ill. 2d 391, 401,

939 N.E.2d 352, 358 (2010). However, in order to determine whether Miller should be
applied retroactively, we look to the standards set forth by the Supreme Court in Teague v.
Lane, 489 U.S. 288 (1989), and adopted by our supreme court in People v. Flowers, 138 Ill.

2d 218, 561 N.E.2d 674 (1990).
¶ 20 Our supreme court has succinctly explained the Teague analysis as follows:
"Generally, new rules are not to be applied retroactively to cases on collateral review

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 except in two instance: (1) if the rule places certain kinds of primary, private

individual conduct beyond the power of the criminal-law-making authority to
proscribe; or (2) if the rule requires the observance of those procedures that are
implicit in the concept of ordered liberty." People v. Sanders, 238 Ill. 2d 391, 401,
939 N.E.2d 352, 358 (2010).
The second exception is limited to " 'watershed rules of criminal procedure' " and to "those

new procedures without which the likelihood of an accurate conviction is seriously

diminished." Sanders, 238 Ill. 2d at 401, 939 N.E.2d at 358 (quoting Teague, 489 U.S. at
311).
¶ 21 In Morfin, our colleagues in the First District applied a Teague analysis and held that

Miller creates a new substantive rule that applies retroactively and that courts are required
to hold a sentencing hearing for every minor convicted of first-degree murder at which a

sentence other than natural life imprisonment must be available for consideration. Morfin,

2012 IL App (1st) 103568, ¶ 56, 981 N.E.2d 1010. The Morfin court found that its decision

was reinforced by the fact that in Miller, one of the two defendants was before the Supreme

Court on collateral review and received the same relief as the defendant on direct review.
Morfin, 2012 IL App (1st) 103568, ¶ 57, 981 N.E.2d 1010.
¶ 22 In People v. Williams, 2012 IL App (1st) 111145, 982 N.E.2d 181, the First District

held that Miller constituted a substantial change in the law and was a watershed rule of

criminal procedure, and also pointed out the importance between the two defendants in
Miller, specifically stating:
"It is instructive that the Miller companion case, Jackson v. Hobbs, arising on

collateral review, involved a life-without-parole-sentence heretofore final.
Notwithstanding its finality, the Supreme Court of the United States in effect
retroactively applied Miller and vacated Jackson's sentence. '[O]nce a new rule is

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 applied to the defendant in the case announcing the rule, evenhanded justice requires

that it be applied retroactively to all who are similarly situated.' Teague, 489 U.S. at
300. The Miller case held under the eighth amendment that it is cruel and unusual
punishment to impose a mandatory life sentence without parole to a special
class–juveniles. It would also be cruel and unusual to apply that principle only to new
cases." Williams, 2012 IL App (1st) 111145, ¶ 54, 982 N.E.2d 181.

We agree with our colleagues in the First District that it would be cruel and unusual to apply

Miller only to new cases and hold that Miller should apply retroactively. However, we
acknowledge that not all courts agree on the issue of retroactivity.
¶ 23 For example, in Craig v. Cain, No. 12-30035 (5th Cir. 2013) (per curiam)

(unpublished opinion), the United States Fifth Circuit Court of Appeals held Miller
established a new rule, but that new rule did not apply retroactively, as Miller did not

categorically bar all sentences of life imprisonment for juveniles and did not qualify as a

watershed rule of criminal procedure, as it was an outgrowth of the Supreme Court's prior

decisions relating to individualized sentencing determinations. In People v. Carp, 828

N.W.2d 685 (Mich. Ct. App. 2012), a Michigan appellate court held that Miller should not
be applied retroactively to cases already final on appeal when the Miller decision was
rendered. That court analyzed the retroactivity question using a Teague analysis, as well as

the Michigan state standard, and found that Miller dealt exclusively with sentencing and,

therefore, was procedural, not substantive, in nature and did not comprise a watershed rule.
We find Carp distinguishable on the grounds that it employed its own state's standards, and
to the extent it is not distinguishable, we respectfully disagree with it and other courts which

have determined that Miller should not apply retroactively.
¶ 24 Looking at the case before us, it is clear that the sentencing court did not consider
defendant's status as a juvenile at the time of the offense when making its determination.

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Even defense counsel agreed that pursuant to statute, defendant was to be sentenced to

mandatory life imprisonment without the possibility of parole. The mandatory life sentence
imposed herein violates the eighth amendment's prohibition on cruel and unusual
punishment. Miller, 567 U.S. at __, 132 S. Ct at 2460. We, therefore, vacate defendant's
sentence and remand for a new sentencing hearing in which natural life imprisonment is not
the only available sentence. We note, however, that defendant may again be sentenced to

natural life in prison, as there is nothing which prohibits a sentence of natural life in prison

for a minor so long as the sentence is at the trial court's discretion and not mandatory. Miller,
202 Ill. 2d at 341, 781 N.E.2d at 309.
¶ 25 III

¶ 26 Defendant attempts to raise a myriad of other issues in his third issue raised on appeal.
Defendant asserts claims of denial of due process, ineffective assistance of counsel, violation

of a right to fair trial, and the prohibition against cruel and unusual punishment. The State

replies that we should strike or disregard the claims raised in the third issue due to violations

of Illinois Supreme Court Rule 341 (eff. July 1, 2008), which deals with the content of briefs,

and even if we chose to consider these arguments, they are without merit. We agree with the
State.
¶ 27 In the instant case, defendant discharged his appointed counsel and chose to proceed

on the pro se petition he filed on April 12, 2010. The petition is 40 pages long, typed, and

single-spaced, and it contains 19 claims, with most of the arguments pertaining to ineffective
assistance of trial and appellate counsel. In response, the State filed a detailed motion to
dismiss, which included citations to the record and supporting case law. The circuit court

dismissed under the doctrines of waiver and forfeiture and also found the claims made by
defendant are barred under the doctrine of res judicata.
¶ 28 Defendant's affidavit and pro se brief merely claim the issues he raised in his petition

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should be taken as true. He asserts the adequacy of the exhibits to the petition without

naming what the exhibits are or how they support it. Defendant's pro se brief is so lacking
with regard to issue III that in order to fully address it, we would have to scour the record and
act as his advocate in search of support for his claims, which we are not required to do. See
People v. Webber, 234 Ill. 2d 641, 644, 600 N.E.2d 68, 70 (1992). While defendant strives
to disguise his arguments under the veil of due process, the right to effective assistance of

counsel, the right to a fair trial, and the right to be free from cruel and unusual punishment,

it is well settled that a postconviction petitioner is not entitled to relief under the Act by
merely "rephrasing previously addressed issues in constitutional terms," as waiver and res
judicata bar these claims. (Internal quotation marks omitted.) People v. Flores, 153 Ill. 2d

264, 277-78, 606 N.E.2d 1078, 1084-85 (1992). We reject defendant's arguments raised in
his third issue.

¶ 29 IV

¶ 30 The fourth issue raised by defendant is a violation of procedural due process due to

the circuit court's failure to hold a hearing and rule on defendant's petition for contempt prior

to conducting a hearing on the State's motion to dismiss. We are unconvinced that
defendant's due process rights were violated in this regard.
¶ 31 In the instant case, defendant filed a petition seeking an order of contempt against the

St. Clair County juvenile detention center and the East St. Louis police department for failing

to respond to his subpoenas. Defendant received some documents from the detention center,
but the police department was unable to comply with defendant's request, specifically stating
that even if the evidence which defendant requested in fact existed, it "was stored in a

building which has been condemned due to structural and asbestos-related problems and that
any property contained therein is no longer accessible." The record reflects that the State did
all it could to provide defendant with the documents he sought prior to filing its motion to

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dismiss, but neither the detention center nor the police department could provide defendant

with any additional documents.
¶ 32 In its order dismissing defendant's postconviction petition, the circuit court
specifically stated "that defendant attached documents from the St. Clair County Juvenile
Detention Center to his postconviction petition and rejects any claims that he was denied the
necessary documents to present his claims." Defendant has failed to convince us to the

contrary. Thus, we find that defendant's procedural due process rights were not violated as

he claims.
¶ 33 V
¶ 34 The fifth issue raised by defendant includes additional claims of lack of reasonable

assistance of counsel due to the circuit court's failure to appoint new appellate counsel. We
are unconvinced.

¶ 35 It is well settled that a defendant does not have a constitutional right to the assistance

of counsel during a postconviction proceeding. People v. Moore, 189 Ill. 2d 521, 541, 727

N.E.2d 348, 358 (2000). However, in the case of an indigent defendant, the law does provide

for the appointment of counsel. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). Because the right
to counsel in a postconviction proceeding is derived from statute rather than the federal or
state constitutions, postconviction petitions are guaranteed only the level of assistance

provided for in the Act. That assistance has been defined by our supreme court to mean a

"reasonable" level of assistance. Flores, 153 Ill. 2d at 276, 606 N.E.2d at 1084.
¶ 36 In the instant case, second-stage counsel was appointed on November 26, 2008. On
September 16, 2009, appointed counsel filed an amended postconviction petition on behalf

of defendant. On October 28, 2009, defendant discharged appointed counsel and decided not
to proceed on the amended postconviction petition filed by appointed counsel, but rather
chose to proceed pro se. On April 12, 2010, defendant filed a pro se amended petition. It

17
was this petition that was presented to the circuit court and dismissed. Accordingly, we have

no way to judge appointed counsel's representation and, thus, we find defendant's arguments
hypothetical.
¶ 37 A reviewing court should not engage in hearing abstract and hypothetical arguments.
People v. Coupland, 387 Ill. App. 3d 774, 776-77, 901 N.E.2d 448, 452 (2008). Here,
defendant basically argues that postconviction counsel would have provided unreasonable

assistance, if defendant allowed him to provide such assistance. We need not consider this

argument. We do, however, note that after reviewing the record as a whole, especially
appointed counsel's amended petition, the incidents leading up to defendant's decision to
proceed pro se, and his later request for new counsel, we are satisfied by the circuit court's

denial of new postconviction counsel and its decision to allow defendant to proceed pro se.
¶ 38 VI

¶ 39 The final issue raised by defendant is that the circuit court erred in denying his motion

to relitigate his motion to suppress statements. Defendant insists a new suppression hearing

is necessary because he did not receive a full and fair hearing during his original hearing due

to prosecutorial misconduct, ineffective assistance of counsel, and perjury committed by the
State's witnesses, Tony Bennett, Delbert Marion, and James Newcombe. Defendant's
allegations in this regard mainly rehash arguments he previously raised under argument III.

¶ 40 In any event, the State's motion to dismiss addressed this issue, and the trial court

specifically stated in its amended order as follows:
"The Court finds that defendant's claim that the State presented perjured testimony
is without merit. The law is clear that minor inconsistencies do not rise to the level

of perjured testimony. People v. Tyner (1968) 40 Ill. 2d 1, 238 N.E.2d 377.
Defendant has established no more than minor and understandable inconsistencies.
The Court rejects this claim."

18
We agree with the circuit court that defendant has failed to establish that his constitutional

rights were substantially violated in this regard.
¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, the judgment of the circuit court of St. Clair County
dismissing defendant's amended postconviction petition is affirmed in part. We vacate
defendant's sentence and remand for a new sentencing hearing in which the circuit court

reconsiders defendant's sentence of natural life in prison without the possibility of parole in

accordance with the principles set forth by the United States Supreme Court in Miller.

¶ 43 Affirmed in part and vacated in part; cause remanded with directions.

19
 2013 IL App (5th) 110112

NO. 5-11-0112
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 99-CF-995
)
COREY JOHNSON, ) Honorable
) Jan V. Fiss,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: October 9, 2013
___________________________________________________________________________________

Justices: Honorable Richard P. Goldenhersh, J.
Honorable Bruce D. Stewart, J., and
Honorable James M. Wexstten, J.,
Concur
___________________________________________________________________________________
Pro se Corey Johnson, Reg. No. B-83352, Menard Correctional Center, P.O. Box 1000,
Appellant Menard, IL 62259
___________________________________________________________________________________

Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County Courthouse, 10 Public
for Square, P.O. Box 8445, Belleville, IL 62220; Patrick Delfino, Director, Stephen
Appellee E. Norris, Deputy Director, Jennifer Camden, Staff Attorney, Office of the State's
Attorneys Appellate Prosecutor, Fifth District Office, 730 E. Illinois Hwy. 15, Suite
2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________

Amicus Curiae Shobha L. Mahadev, Clinical Assistant Professor, Project Director Illinois Coalition
for the Fair Sentencing of Children, Children & Family Justice Center, Northwestern
University School of Law, 375 East Chicago Avenue, Chicago, IL 60611; Lawrence
A. Wojcik, Eric M. Roberts, DLA Piper LLP (US), 203 North LaSalle Street, Suite
1900, Chicago, IL 60601