People v. Sanders

2016 IL App (1st) 121732-B
No. 1-12-1732
June 28, 2016

SECOND DIVISION

______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Respondent-Appellee, )
)
v. ) No. 85 C 2190
)
TERRY SANDERS, )
) The Honorable
Petitioner-Appellant. ) Timothy Joseph Joyce,
) Judge presiding.

______________________________________________________________________________

JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Justice Simon and Justice Hyman concurred in the judgment and opinion.

OPINION

¶1 A jury found Terry Sanders guilty of murder and two attempted murders committed in

1985, when Sanders was 17. The trial court sentenced Sanders to serve consecutively terms

of 40 years for the murder and 30 years for each of the two attempted murders, for a total of

100 years. After the dismissal of his postconviction petition and a successive postconviction
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petition, Sanders filed a second successive postconviction petition, arguing that the

sentencing statute did not permit the consecutive sentencing the court imposed and that

recent cases concerning cruel and unusual punishment for minors established that the trial

court based the sentencing on improper considerations. The circuit court summarily

dismissed the second successive postconviction petition.

¶2 In this appeal from the dismissal of the second successive postconviction petition, we

find that recent authority concerning the imposition of lengthy sentences on minors calls into

question the sentencing here. We reverse the dismissal of the second successive

postconviction petition and remand for further proceedings in accord with this opinion.

¶3 BACKGROUND

¶4 In 1985, William Feuling managed a convenience store where Sanders worked as an

assistant manager. On January 20, 1985, Arthur Kozak and Brian Walkowiak visited Feuling

at his home. Sanders also came over with Andrew Johnson and Mike Hill. That evening,

Johnson and Hill drew guns and ordered Sanders to tie up Feuling, Kozak and Walkowiak.

Johnson and Hill robbed Feuling, Kozak and Walkowiak. Johnson stabbed Feuling

repeatedly, then handed the knife to Sanders and ordered him to kill Kozak. Sanders drew the

knife across Kozak’s stomach, head and neck, making superficial cuts. Sanders then hit

Kozak’s head with a hammer, and the hammer’s head broke off. Walkowiak got free from

the bindings and ran. Sanders hit Walkowiak’s head with a poker, but Walkowiak got out and

onto the street. A bullet ripped into Walkowiak’s back. Walkowiak kept running until he

found a car whose driver agreed to take him to the nearest hospital.

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¶5 Sanders separated himself from Johnson and Hill as they ran from Feuling’s home.

Sanders found a police officer and told the officer that someone had been stabbed. Sanders

gave the officer Feuling’s address. Police found Feuling dead at the scene from multiple stab

wounds. Police cut the cord binding Kozak. Kozak told police about the robbery and murder.

¶6 Pictures taken at the police station showed Kozak’s cuts. The hammer blow to his head

left no bruise marks. Doctors did not prescribe any medication for Kozak.

¶7 Police never caught Hill. Prosecutors charged Johnson and Sanders with armed robbery,

murder, and the attempted murders of Kozak and Walkowiak. At the joint trial with Johnson

before separate juries, Kozak testified that the hammer blow to his head made him dizzy for a

second, but he never lost consciousness. He claimed no more serious injury from the attack.

A jury found Sanders guilty of the murder and both attempted murders.

¶8 At the sentencing hearing, the judge emphasized prior findings that Sanders acted

delinquently. When Sanders was 13, he cut a girl with a razor, and, at age 16, he robbed

someone. Teachers and other persons in the community thought highly of Sanders, and the

judge treated their testimony as further reason to regard Sanders as treacherous. The judge

said:

“I have to make sure on behalf of the Feuling family, on behalf of all of

society, that you are incarcerated for a sufficiently long period of time so that

society will be protected against some violent act like this again.

That society will not have to worry that Terry Sanders, the fellow that

sits here meekly in front of me and speaks softly and has gotten so many

people to like him and to help him out and speak up for him, that you will not

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turn again on those same people and on your friends and commit another

horrible crime that nobody can figure out and nobody can understand why it

happened.

I have got to make sure that this does not happen for a considerable

period of time.

Insofar as your co-defendant, Mr. Johnson, was concerned, I found, and I

find again, that the murder of William Feuling was an act separate and apart

from because it ended prior to the time when you attempted to kill Art Kozak

and the attempt murder of Brian Walkowiak and also was an event that was

separate and apart from the murder of William Feuling and separate and apart

from the attempted murder of Arthur Kozak. ***

All of these events are separate and distinct and you should be punished

individually for each because each of them are separate victims.

I could sentence you to natural life *** but because of your young age

and because of your ability to get people to say that you have a potential for

rehabilitation *** I am not going to do that. But I am going to sentence you to

a sufficient period of time that society, when you get out, will not have to

worry about whether or not you’re going to be able to commit crimes such as

this again.”

¶9 The appellate court affirmed the convictions and sentences, including the consecutive

sentencing. People v. Sanders, 168 Ill. App. 3d 295 (1988). Sanders filed a postconviction

petition, and the circuit court dismissed the petition without holding an evidentiary hearing.

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The appellate court affirmed the judgment. People v. Sanders, No. 1-92-0644 (1993)

(unpublished order under Supreme Court Rule 23).

¶ 10 In July 2001, Sanders filed a successive postconviction petition, arguing that the trial

court lacked authority to make the sentence for the attempted murder of Kozak run

consecutively to the sentence for the murder of Feuling. See Ill. Rev. Stat. 1985, ch. 38,

¶ 1005-8-4(a), (b). He also argued that his trial and appellate counsel provided ineffective

assistance when they failed to raise the sentencing issue properly in the trial court and on the

direct appeal. The circuit court dismissed the successive petition, finding that res judicata

barred his claims that the court imposed a void sentence and that he received ineffective

assistance of counsel. This court affirmed the trial court’s decision. People v. Sanders, No. 1-

01-4121 (2002) (unpublished order under Supreme Court Rule 23).

¶ 11 In 2004, Sanders filed a habeas corpus petition. The circuit court recharacterized the

petition as a second successive postconviction petition and summarily dismissed it. The

appellate court reversed the decision because the circuit court did not give Sanders the

opportunity to withdraw or amend his petition when it recharacterized the petition as a

postconviction petition. See People v. Pearson, 216 Ill. 2d 58 (2005). On remand, in 2011,

Sanders amended the petition and moved for leave to file it as a second successive

postconviction petition. He again argued that the trial court lacked authority to impose the

consecutive sentences. He also argued that the trial court had not properly considered

Sanders’s youth in sentencing. Sanders argued that he had cause for failing to raise the issue

earlier, because a new decision from the United States Supreme Court, Graham v. Florida,

560 U.S. 48 (2010), changed the law applicable to lengthy sentences for juveniles. In an

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order dated May 4, 2012, the circuit court denied Sanders’s motion for leave to file the

second successive postconviction petition.

¶ 12 Sanders appealed. This court found the sentence partially void and that new case law

concerning the sentencing of juveniles warranted advancing his petition to the second stage

of postconviction proceedings. People v. Sanders, 2014 IL App (1st) 121732-U. Our supreme

court subsequently decided People v. Castleberry, 2015 IL 116916, in which the court

overruled cases on which this court relied in finding Sanders’s sentence partially void. The

supreme court entered a supervisory order directing this court to reconsider the case in light

of Castleberry. We now vacate our prior order and enter this order.

¶ 13 ANALYSIS

¶ 14 We review de novo the order denying Sanders leave to file the successive postconviction

petition. People v. Gillespie, 407 Ill. App. 3d 113, 124 (2010).

¶ 15 Cruel and Unusual Punishment of Juveniles

¶ 16 Sanders asked this court to reverse the order denying his motion for leave to file a second

successive postconviction petition, based on the trial court’s failure to take into account all of

the considerations relevant to sentencing juveniles. This court reversed the trial court’s

judgment and remanded for further proceedings on the second successive postconviction

petition on the grounds that the imposition of a de facto life sentence, without consideration

of the special circumstances of youth, violated Sanders’s rights under the eighth amendment.

¶ 17 Nothing in Castleberry affects our resolution of this aspect of Sanders’ appeal. The State

contends that a different decision, People v. Thompson, 2015 IL 118151, ¶ 43, shows that we

misunderstood the applicability of the eighth amendment to lengthy sentences imposed on

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juveniles. In Thompson, our supreme court held that new case law regarding the sentencing

of juveniles did not affect the sentence imposed on Thompson, because Thompson was 19

years old when he committed the offense for which the trial court had sentenced him. We do

not see how the holding of Thompson affects the analysis here, as Sanders was a juvenile at

the time of the offenses at issue in this case. We restate our discussion of the eighth

amendment issue.

¶ 18 The Post-Conviction Hearing Act restricts the use of successive postconviction petitions.

725 ILCS 5/122-1(f) (West 2010). For the court to permit a defendant to file a successive

postconviction petition, the petitioner must either meet the cause and prejudice test (725

ILCS 5/122-1(f) (West 2010)), or he must sufficiently allege new evidence of actual

innocence. People v. Ortiz, 235 Ill. 2d 319, 330 (2009). For the cause and prejudice test, the

petitioner must show that an objective impediment precluded him from raising the issue in an

earlier proceeding and that the claimed errors resulted in actual prejudice. People v.

McDonald, 405 Ill. App. 3d 131, 135 (2010).

¶ 19 Sanders claims that United States Supreme Court decisions show that he had cause for

failing to raise the issue in prior proceedings and that he suffered prejudice from the trial

court’s error. After Sanders filed his earlier postconviction petitions, the Supreme Court

decided Graham v. Florida, 560 U.S. 48, and Miller v. Alabama, 567 U.S. ___, 132 S. Ct.

2455 (2012). Those two cases substantially changed the law concerning the imposition of

lengthy sentences on children. See People v. Davis, 2014 IL 115595, ¶ 41. The Davis court

held that Miller and Graham changed the law and gave postconviction petitioners cause for

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failing to raise the issue in proceedings that preceded those decisions. Davis, 2014 IL

115595, ¶ 42.

¶ 20 To show prejudice, Sanders must show a reasonable probability that he would have

achieved a better result if the trial court had correctly applied the eighth amendment, as

interpreted in the decisions in Graham and Miller. See People v. Pitsonbarger, 205 Ill. 2d

444, 471 (2002); People v. Mitchell, 189 Ill. 2d 312, 333-34 (2000). In Miller, the United

States Supreme Court explained at length the special concerns that arise whenever a court

sentences a juvenile offender. First, the Miller Court interpreted the holdings of Graham and

Roper v. Simmons, 543 U.S. 551 (2005):

“Roper and Graham establish that children are constitutionally different from

adults for purposes of sentencing. Because juveniles have diminished

culpability and greater prospects for reform, we explained, ‘they are less

deserving of the most severe punishments.’ Graham, 560 U.S., at ___, 130

S.Ct., at 2026. Those cases relied on three significant gaps between juveniles

and adults. First, children have a ‘ “lack of maturity and an underdeveloped

sense of responsibility,” ’ leading to recklessness, impulsivity, and heedless

risk-taking. Roper, 543 U.S., at 569, 125 S.Ct. 1183. Second, children ‘are

more vulnerable ... to negative influences and outside pressures,’ including

from their family and peers; they have limited ‘contro[l] over their own

environment’ and lack the ability to extricate themselves from horrific, crime-

producing settings. Ibid. And third, a child’s character is not as ‘well formed’

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as an adult’s; his traits are ‘less fixed’ and his actions less likely to be

‘evidence of irretrievabl[e] deprav[ity].’ Id., at 570, 125 S.Ct. 1183.

Our decisions rested not only on common sense—on what ‘any parent

knows’ but on science and social science as well. Id., at 569, 125 S.Ct. 1183.

In Roper, we cited studies showing that ‘ “[o]nly a relatively small proportion

of adolescents” ’ who engage in illegal activity ‘ “develop entrenched patterns

of problem behavior.” ’ Id., at 570, 125 S.Ct. 1183 (quoting Steinberg & Scott,

Less Guilty by Reason of Adolescence: Developmental Immaturity,

Diminished Responsibility, and the Juvenile Death Penalty, 58 Am.

Psychologist 1009, 1014 (2003)). And in Graham, we noted that

‘developments in psychology and brain science continue to show fundamental

differences between juvenile and adult minds’—for example, in ‘parts of the

brain involved in behavior control.’ 560 U.S., at ___, 130 S.Ct., at 2026. We

reasoned that those findings—of transient rashness, proclivity for risk, and

inability to assess consequences—both lessened a child’s ‘moral culpability’

and enhanced the prospect that, as the years go by and neurological

development occurs, his ‘ “deficiencies will be reformed.” ’ Id., at ___, 130

S.Ct., at 2027 (quoting Roper, 543 U.S., at 570, 125 S.Ct. 1183).

Roper and Graham emphasized that the distinctive attributes of youth

diminish the penological justifications for imposing the harshest sentences on

juvenile offenders, even when they commit terrible crimes. Because ‘ “[t]he

heart of the retribution rationale” ’ relates to an offender’s blameworthiness,

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‘ “the case for retribution is not as strong with a minor as with an adult.” ’

Graham, 560 U.S., at ___, 130 S.Ct., at 2028 (quoting Tison v. Arizona, 481

U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed. 2d127 (1987); Roper, 543 U.S., at

571, 125 S.Ct. 1183). Nor can deterrence do the work in this context, because

‘ “the same characteristics that render juveniles less culpable than adults” ’—

their immaturity, recklessness, and impetuosity—make them less likely to

consider potential punishment. Graham, 560 U.S., at ___, 130 S.Ct. at 2028

(quoting Roper, 543 U.S., at 571, 125 S Ct. 1183). Similarly, incapacitation

could not support the life-without-parole sentence in Graham : Deciding that a

‘juvenile offender forever will be a danger to society’ would require ‘mak[ing]

a judgment that [he] is incorrigible’—but ‘ “incorrigibility is inconsistent with

youth.” ’ 560 U.S., at ___, 130 S.Ct., at 2029 (quoting Workman v.

Commonwealth, 429 S.W.2d 374, 378 (Ky.App.1968)). And for the same

reason, rehabilitation could not justify that sentence. Life without parole

‘forswears altogether the rehabilitative ideal.’ Graham, 560 U.S., at ___, 130

S.Ct., at 2030. It reflects ‘an irrevocable judgment about [an offender’s] value

and place in society,’ at odds with a child’s capacity for change. Ibid.” Miller,

567 U.S. at ___, 132 S. Ct. at 2464-65.

¶ 21 The Miller court then applied its observations to the case on appeal:

“Of special pertinence here, we insisted in these rulings that a sentencer

have the ability to consider the ‘mitigating qualities of youth.’ Johnson v.

Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Everything

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we said in Roper and Graham about that stage of life also appears in these

decisions. As we observed, ‘youth is more than a chronological fact.’ Eddings,

455 U.S., at 115, 102 S.Ct. 869. It is a time of immaturity, irresponsibility,

‘impetuousness[,] and recklessness.’ Johnson, 509 U.S., at 368, 113 S.Ct.

2658. It is a moment and ‘condition of life when a person may be most

susceptible to influence and to psychological damage.’ Eddings, 455 U.S., at

115, 102 S.Ct. 869. And its ‘signature qualities’ are all ‘transient.’ Johnson,

509 U.S., at 368, 113 S.Ct. 2658. Eddings is especially on point. There, a 16-

year-old shot a police officer point-blank and killed him. We invalidated his

death sentence because the judge did not consider evidence of his neglectful

and violent family background (including his mother’s drug abuse and his

father’s physical abuse) and his emotional disturbance. We found that evidence

‘particularly relevant’—more so than it would have been in the case of an adult

offender. 455 U.S., at 115, 102 S.Ct. 869. We held: ‘[J]ust as the chronological

age of a minor is itself a relevant mitigating factor of great weight, so must the

background and mental and emotional development of a youthful defendant be

duly considered’ in assessing his culpability. Id., at 116, 102 S.Ct. 869.”

Miller, 567 U.S. at ___, 132 S. Ct. at 2467.

¶ 22 The Supreme Court of Iowa addressed the effect of Miller on sentences other than life in

prison for juvenile offenders. In State v. Null, 836 N.W.2d 41 (Iowa 2013), the trial court

sentenced the juvenile offender to an aggregate term of 52.5 years in prison for second

degree murder and first degree robbery. The court held:

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“[W]hile a minimum of 52.5 years imprisonment is not technically a life-

without-parole sentence, such a lengthy sentence imposed on a juvenile is

sufficient to trigger Miller-type protections. ***

*** In coming to this conclusion, we note the repeated emphasis of the

Supreme Court in Roper, Graham, and Miller of the lessened culpability of

juvenile offenders, how difficult it is to determine which juvenile offender is

one of the very few that is irredeemable, and the importance of a ‘meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation.’ Graham, 560 U.S. at ___, 130 S.Ct. at 2030, 176 L.Ed.2d at

845-46. ***

***

*** [W]e conclude [the Iowa constitution] requires that a district court

recognize and apply the core teachings of Roper, Graham, and Miller in

making sentencing decisions for long prison terms involving juveniles.

[Citations.]

First, the district court must recognize that because ‘children are

constitutionally different from adults,’ they ordinarily cannot be held to the

same standard of culpability as adults in criminal sentencing. Miller, 567 U.S.

at ___, 132 S.Ct. at 2464, 183 L.Ed.2d at 418; [citation]. The constitutional

difference arises from a juvenile’s lack of maturity, underdeveloped sense of

responsibility, vulnerability to peer pressure, and the less fixed nature of the

juvenile’s character. [Citations.]

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If a district court believes a case presents an exception to this generally

applicable rule, the district court should make findings discussing why the

general rule does not apply. [Citations.] In making such findings, the district

court must go beyond a mere recitation of the nature of the crime, which the

Supreme Court has cautioned cannot overwhelm the analysis in the context of

juvenile sentencing. [Citations.] Further, the typical characteristics of youth,

which include immaturity, impetuosity, and poor risk assessment, are to be

regarded as mitigating, not aggravating factors. [Citation.]

Second, the district court must recognize that ‘[j]uveniles are more

capable of change than are adults’ and that as a result, ‘their actions are less

likely to be evidence of “irretrievably depraved character.” ’ Graham, 560 U.S.

at ___, 130 S.Ct. at 2026, 176 L.Ed.2d at 841 (quoting Roper, 543 U.S. at 570,

125 S.Ct. at 1195, 161 L.Ed.2d at 22); [citation]. While some juvenile

offenders may be irreparably lost, it is very difficult to identify juvenile

offenders that fall into this category. As the Supreme Court noted, even expert

psychologists have difficulty making this type of prediction. [Citations.]

Further, the district court must recognize that most juveniles who engage in

criminal activity are not destined to become lifelong criminals. [Citations.] The

‘ “signature qualities” of youth are all “transient.” ’ Miller, 567 U.S. at ___,

132 S.Ct. at 2467, 183 L. Ed. 2d at 422 (quoting Johnson, 509 U.S. at 368, 113

S.Ct. at 2669, 125 L.Ed.2d at 306). Because ‘incorrigibility is inconsistent with

youth,’ care should be taken to avoid ‘an irrevocable judgment about [an

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offender’s] value and place in society.’ Miller, 567 U.S. at ___, 132 S.Ct. at

2465, 183 L.Ed.2d at 419 (citation and internal quotation marks omitted).

Finally, and related to the previous discussion, the district court should

recognize that a lengthy prison sentence without the possibility of parole such

as that involved in this case is appropriate, if at all, only in rare or uncommon

cases. [Citations.]

At the same time, it bears emphasis that while youth is a mitigating

factor in sentencing, it is not an excuse. [Citations.] Nothing that the Supreme

Court has said in these cases suggests trial courts are not to consider protecting

public safety in appropriate cases through imposition of significant prison

terms. Further, it bears emphasis that nothing in Roper, Graham, or Miller

guarantees that youthful offenders will obtain eventual release. All that is

required is a ‘meaningful opportunity’ to demonstrate rehabilitation and fitness

to return to society. Graham, 560 U.S. at ___, 130 S.Ct. at 2030, 176 L.Ed.2d

at 845-46.” Null, 836 N.W.2d at 71-75.

¶ 23 The court vacated the sentence and remanded for the trial court to reconsider the sentence

in light of Miller. As the Null court pointed out, courts in other jurisdictions similarly

remanded cases for resentencing in light of Miller. See People v. Araujo, No. B240501, 2013

WL 840995, at *5 (Cal. Ct. App. Mar. 7, 2013) (unpublished opinion) (sentencing court’s

reference to the defendant’s “tender age” does not eliminate need to remand for resentencing

in light of Miller); People v. Rosales, No. F061036, 2012 WL 4749427, at *24 (Cal. Ct. App.

Oct. 5, 2012) (unpublished opinion) (“Miller changed the law on what factors are applicable

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by elaborating extensively on the ways in which a defendant’s youth is relevant ***.”); State

v. Fletcher, 47-777KA (La. App. 2 Cir. 4/10/13), 112 So. 3d 1031; Daugherty v. State, 96 So.

3d 1076, 1079-80 (Fla. Dist. Ct. App. 2012). Some recent Illinois cases also apply Miller to

sentences other than life in prison imposed on juveniles. See People v. Dupree, 2014 IL App

(1st) 111872, ¶ 58; People v. Nieto, 2016 IL App (1st) 121604, ¶ 42. We find Null and the

other cited authorities persuasive.

¶ 24 The State contends that the application of Miller here conflicts with People v. Davis,

2014 IL 115595, ¶ 43, and People v. Patterson, 2014 IL 115102, ¶ 100. The Davis court

noted that even after Graham, Roper and Miller, a trial court still has authority to impose a

sentence of natural life in prison on a juvenile in an appropriate case. Davis, 2014 IL 115595,

¶ 43. We see no conflict between that holding and our application of the principles stated in

Graham, Roper and Miller to this case.

¶ 25 In Patterson, our supreme court said that Graham, Roper and Miller did not apply to the

sentence of almost 31 years imposed on the juvenile defendant in that case, because the

sentence, “[a]lthough lengthy, *** is not comparable to *** life in prison without parole.”

Patterson, 2014 IL 115102, ¶ 108. The trial court here imposed on Sanders consecutive

sentences totaling 100 years, and, according to the State, even with maximum good time

credit, Sanders would need to serve at least 49 years before he could become eligible for

parole.

¶ 26 “The United States Sentencing Commission Preliminary Quarterly Data Report” (through

June 30, 2012) indicates that a person held in a general prison population has a life

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expectancy of about 64 years. This estimate probably overstates the average life expectancy

for minors committed to prison for lengthy terms. One researcher concluded:

“A person suffers a two-year decline in life expectancy for every year locked

away in prison. Evelyn J. Patterson, The Dose-Response of Time Served in Prison

on Mortality: New York State, 1989-2003, 103 Am. J. of Pub. Health 523, 526

(2013). The high levels of violence and communicable diseases, poor diets, and

shoddy health care all contribute to a significant reduction in life expectancy

behind bars. See United States v. Taveras, 436 F. Supp. 2d 493, 500 (E.D.N.Y.

2006) (finding ‘persistent problems in United States penitentiaries of prisoner

rape, gang violence, the use of excessive force by officers, [and] contagious

diseases’ that lead to a lower life expectancy in prisons in the United States), aff’d

in part, vacated in part sub nom. United States v. Pepin, 514 F.3d 193 (2d Cir.

2008); John J. Gibbons & Nicholas de B. Katzenbach, Confronting Confinement

11 (2006). Entering prison at a young age is particularly dangerous. Youth

incarcerated in adult prisons are five times more likely to be victims of sexual or

physical assault than are adults. [Citation]; Deborah LaBelle, Michigan Life

Expectancy Data for Youth Serving Natural Life Sentences, http://

fairsentencingofyouth.org/wp-content/uploads/2010/02/Michigan-Life-

Expectancy-Data-Youth-Serving-Life.pdf (last visited Dec. 12, 2013).” Nick

Straley, Miller’s Promise: Re-Evaluating Extreme Criminal Sentences for

Children, 89 Wash. L. Rev. 963, 986 n.142 (2014).

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¶ 27 To become eligible for parole, Sanders will need to outlive his life expectancy. The

sentence the trial court imposed effectively imprisons Sanders for the remainder of the

lifetime he can expect to live. See also United States v. Nelson, 491 F.3d 344, 349-50 (7th

Cir. 2007) (acknowledging the decreased life expectancy for incarcerated individuals based

on United States Sentencing Commission data). Even after Patterson, Sanders’s extreme

sentence, in excess of his life expectancy as a prison inmate, implicates the eighth

amendment concerns set forth in Graham, Roper and Miller.

¶ 28 The trial court here did not consider the special circumstances of youth that often make

lengthy sentences particularly inappropriate for youthful offenders. The court treated

Sanders’s evidence of rehabilitative potential as grounds for extending his sentence due to his

treacherous nature. We find that Sanders has shown a reasonable probability that he would

have received a shorter sentence if the trial court correctly understood the eighth amendment

as it applies to the punishment of juvenile offenders. Sanders has sufficiently demonstrated

cause for the failure to raise the violation in earlier proceedings and prejudice due to the

failure, and therefore the circuit court should have granted his request for leave to file his

second successive postconviction petition. See 725 ILCS 5/122-1(f) (West 2004); People v.

Smith, 2014 IL 115946, ¶¶ 34-35. We reverse the order denying Sanders’s motion to file a

successive postconviction petition, and we remand for further proceedings in accord with this

order.

¶ 29 Ineffective Assistance of Counsel

¶ 30 Sanders admits that, under Castleberry, his sentence is only partially voidable, not

partially void, and therefore this court cannot vacate the sentence as void. Sanders asks this

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court to find that his trial and appellate counsel provided ineffective assistance when they

failed to challenge the sentence as unauthorized by the sentencing statute.

¶ 31 Sanders raised the issue of ineffective assistance for failing to challenge the sentence

properly in his successive postconviction petition, filed in 2001. The circuit court dismissed

that petition, finding the ineffective assistance claim barred as res judicata. This court then

affirmed the dismissal of the petition. Sanders, No. 1-01-4121.

¶ 32 Sanders argues that res judicata does not now bar the issue of ineffective assistance of

counsel, because no prior court decided the issue on the merits. However, in dismissing the

2001 petition, the circuit court entered a final judgment specifically deciding the issue of

whether res judicata barred the claim for ineffective assistance of counsel. We find that the

final judgment in Sanders, No. 1-01-4121, bars relitigation of the issue of whether

res judicata bars the claim raised again in the 2004 petition for ineffective assistance of

counsel. See People v. Blair, 215 Ill. 2d 427, 443 (2005).

¶ 33 Finally, Sanders argues that we should apply the fundamental fairness exception to

res judicata and permit the claim for ineffective assistance of counsel to proceed. See Blair,

215 Ill. 2d at 450. However, because of our resolution of the issue of whether Sanders stated

a claim for violation of his rights under the eighth amendment, we find that we lack adequate

grounds for allowing relitigation of an issue the parties fully litigated in the proceedings on

the 2001 petition.

¶ 34 CONCLUSION

¶ 35 The decision in Sanders, No. 1-01-4121, bars Sanders from relitigating the issue of

whether res judicata bars the issue of whether Sanders received ineffective assistance of trial

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and appellate counsel when trial and appellate counsel failed to raise properly the issue of

whether sentencing statutes permitted the court to impose consecutive sentences for the

murder of Feuling and the attempted murder of Kozak. But Sanders has shown that recent

United States Supreme Court decisions have changed sentencing of juveniles in ways that

could affect the constitutionality of his sentencing, sufficiently showing both cause for his

failure to raise the issue in earlier proceedings, and prejudice due to that failure. We reverse

the order denying Sanders leave to file his second successive postconviction petition and we

remand for further proceedings on Sanders’s petition.

¶ 36 Reversed and remanded.

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