People v. Jackson

2016 IL App (1st) 143025
No. 1-14-3025
Opinion filed September 30, 2016

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 03 CR 22273
)
DARRON JACKSON, ) The Honorable
) Noreen Valeria Love,
Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Hall and Reyes concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, defendant Darron Jackson, age 16 at the time of the

offense, was convicted as an adult of the first degree murder of Kenneth Porter

and of personally discharging a firearm that caused another's death. He was
 No. 1-14-3025

subsequently sentenced to 50 years in the Illinois Department of Corrections

(IDOC).

¶2 After his conviction was affirmed and his first postconviction petition

was dismissed as frivolous and patently without merit, defendant filed a motion

for leave to file a successive postconviction petition, arguing: (1) that a 50-year

sentence for a minor violates the eighth amendment's prohibition against cruel

and unusual punishment (U.S. Const., amend. VIII), 1 pursuant to recent

decisions concerning minors by the United States Supreme Court, such as

Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455 (2012); and (2) that the

automatic transfer provision of Illinois' Juvenile Court Act of 1987 (705 ILCS

405/5-130 (West 2002)) violates due process, the proportionate penalties clause

of the Illinois Constitution (Ill. Const. 1970, art. I, § 11),2 and the eighth

amendment (U.S. Const., amend. VIII).

1
The eighth amendment applies to the states through the fourteenth
amendment. Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). The Illinois
Supreme Court has held that "the Illinois proportionate penalties clause is co-
extensive with the eighth amendment's cruel and unusual punishment clause."
People v. Patterson, 2014 IL 115102, ¶ 106.
2
Although section 11 does not contain the phrase "proportionate penalties,"
it is commonly referred to in our case law as "the proportionate penalties clause of
the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11)." People v. Ligon,
2016 IL 118023, ¶ 1. Section 11 states, in relevant part, 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.
2
 No. 1-14-3025

¶3 The trial court denied defendant leave to appeal, and it is this order which

is at issue before us. For the following reasons, we affirm.

¶4 BACKGROUND

¶5 The State's evidence at trial showed that, on September 10, 2003, at

10:30 a.m., defendant shot and killed Kenneth Porter as Porter was standing in

the middle of an intersection at Madison Street and Fourth Avenue, in

Maywood, Illinois. There are no issues raised on this appeal concerning the

evidence at trial. This court has already discussed the evidence at trial in both

our Rule 23 orders affirming his conviction on appeal (People v. Jackson, No.

1-04-3656 (2007) (unpublished order pursuant to Supreme Court Rule 23)) and

affirming the dismissal of his first postconviction petition (People v. Jackson,

No. 1-08-1546 (2009) (unpublished order pursuant to Supreme Court Rule 23)).

We incorporate these orders by reference, and we will not repeat here our prior

discussion of the evidence at trial. The issues raised on appeal are purely legal

issues concerning defendant's sentencing.

¶6 After a jury trial, defendant was convicted on September 2, 2004, of first

degree murder. The State proceeded on a single charge of enhanced first degree

murder which meant that they had to find, beyond a reasonable doubt, that

defendant, while armed with a firearm, personally discharged that firearm that

proximately caused the death of the victim. The jury was so instructed

3
 No. 1-14-3025

accordingly and returned a verdict of guilty, and defendant was sentenced by

the trial court on September 28, 2004, to 60 years with IDOC.

¶7 At the sentencing hearing on September 28, the assistant State's Attorney

(ASA) observed that defendant was subject to a mandatory firearm

enhancement, which provided that "25 years or up to a term of natural life shall

be added to the term of imprisonment imposed by the court." 3 As a result, the

minimum possible sentence was 45 years, and the maximum was natural life.

The ASA asked for natural life. The trial court imposed a sentence of 60 years

which the trial court noted would be served at 100% of the time. 4

¶8 On appeal, this court affirmed defendant's conviction but reduced his

sentence from 60 to 50 years. Jackson, No. 1-04-3656 (2007) (unpublished

order pursuant to Supreme Court Rule 23). A year after his direct appeal,
3
The firearm enhancement provision, which applied to defendant's sentence,
stated in relevant part that "if, during the commission of the offense, the person
personally discharged a firearm that proximately caused *** death to another
person, 25 years or up to a term of natural life shall be added to the term of
imprisonment imposed by the court." (Emphasis added.) 730 ILCS 5/5-8-
1(a)(1)(d)(iii) (West 2002). However, the law was changed this year so that the
enhancement is no longer mandatory for individuals under age 18, such as
defendant. Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-
105(b)); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (same).
4
The truth in sentencing statute, which applied to defendant's sentence,
provided in relevant part that "a prisoner who is serving a term of imprisonment for
first degree murder *** shall receive no good conduct credit and shall serve the
entire sentence imposed by the court." (Emphasis added.) 730 ILCS 5/3-6-
3(a)(2)(i) (West 2002). The quoted section reads exactly the same today,
substituting only the word "sentence" for the words "good conduct." See Pub. Act
99-642, § 560 (eff. July 28, 2016) (amending 730 ILCS 5/3-6-3).
4
 No. 1-14-3025

defendant retained counsel,5 who filed a postconviction petition on March 24,

2008, and a further amended petition on April 11, 2008. On May 23, 2008, the

trial court dismissed the amended postconviction petition at the first stage as

frivolous and patently without merit, and this court affirmed the dismissal on

appeal. Jackson, No. 1-08-1546 (2009) (unpublished order pursuant to

Supreme Court Rule 23).

¶9 On May 15, 2014, defendant filed a pro se motion for leave to file his

first successive postconviction petition, arguing that, since his claims were

based on recent changes in the law announced in Miller, 567 U.S. __, 132 S.Ct.

2455, and related cases, he could not have raised these claims in his direct

appeal or in his original postconviction petition which was filed in 2008.

¶ 10 In his pro se motion and accompanying petition, defendant argued, first,

that his 50-year sentence was a de facto life sentence, because the sentence

exceeded his life expectancy. 6 He argued that his sentence, which included no

5
In the March 24, 2008, petition, counsel stated that he was retained less
than one month before.
6
In his petition, defendant argued that, based on statistics from the Center for
Disease Control and Prevention, his life expectancy was 60 to 63.8 years. In his
brief to this court, he stated: "The actual life expectancy for somebody born in
1987 is 64.7 years, not 60 to 63.8 years, as Jackson wrote in his petition."
Although this has no effect on today's decision, this court visited the website for
the Center for Disease Control and Prevention, which contained an "expectation of
life" table for the year 2011. A person born in 1987 would be 24 in the year 2011.
According to the table which was divided into five-year increments, a black man,
age 25 in 2011, could expect to live another 49 years, for a total life expectancy of
5
 No. 1-14-3025

eligibility for parole, was, in effect, a life sentence without parole and thus a

violation of the eighth amendment's prohibition of cruel and unusual

punishment, as that term has been recently interpreted by the United States

Supreme Court in Miller, 567 U.S. __, 132 S.Ct. at 2460 ("mandatory life

without parole for those under the age 18 at the time of their crimes violates the

Eighth Amendment's prohibition on 'cruel and unusual punishment' ").

Defendant argued that, if mandatory life without parole for a juvenile does not

serve any "penological" goals then neither does a de facto life sentence without

parole. Miller, 567 U.S. __, 132 S.Ct. at 2465 ("the distinctive attributes of

youth diminish the penological justifications for imposing the harshest

sentences on juvenile offenders, even when they commit terrible crimes").

¶ 11 Defendant argued, second, that the automatic transfer provision of the

Illinois Juvenile Court Act violates federal and state due process, the eighth

amendment and the proportionality clause of the Illinois Constitution,

particularly when combined with the firearm enhancement (730 ILCS 5/5-8-

74 years. Centers for Disease Control and Prevention, National Vital Statistics
Reports, Vol. 64, No. 11, at 3 (Sept. 22, 2015), available at http://
www.cdc.gov/nchs/data/nvsr/nvsr64 _11.pdf. Seventy-four years would be 8 years
after defendant's expected release age of 66 years old.
6
 No. 1-14-3025

1(a)(1)(d)(iii) (West 2002))7 and the truth in sentencing statutes (730 ILCS 5/3-

6-3(a)(2)(i) (West 2002)). 8

¶ 12 On August 29, 2014, the trial court denied defendant leave to file a

successive postconviction petition; and on October 23, 2014, this court allowed

defendant's late notice of appeal.

¶ 13 ANALYSIS

¶ 14 On this appeal, defendant claims that the trial court erred in denying his

motion for leave to file his first successive postconviction petition, because

recent changes in the law prevented him from filing his claims earlier. For the

following reasons, we affirm.

¶ 15 I. Stages of a Postconviction Petition

¶ 16 Although the issue before us is the very preliminary question of whether

defendant's petition can even be filed, we provide here a summary of the stages

to show how the subsequent process sheds light on this preliminary step.

¶ 17 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West

2014)) provides a statutory remedy for criminal defendants who claim their

7
See footnote 3 for a description of the firearm enhancement provision,
which applied to defendant's sentence (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002))
and subsequent changes. Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730
ILCS 5/5-4.5-105(b)); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (same).
8
See footnote 4 for a description of the truth in sentencing statute. 730 ILCS
5/3-6-3(a)(2)(i) (West 2002).
7
 No. 1-14-3025

constitutional rights were violated at trial. People v. Edwards, 2012 IL 111711,

¶ 21. The Act is not intended to be a substitute for an appeal; instead, it is a

collateral proceeding which attacks a final judgment. Edwards, 2012 IL

111711, ¶ 21.

¶ 18 The Act provides for three stages of review by the trial court. People v.

Domagala, 2013 IL 113688, ¶ 32. At the first stage, the trial court may

summarily dismiss a petition that is frivolous or patently without merit. 725

ILCS 5/122-2.1(a)(2) (West 2014); Domagala, 2013 IL 113688, ¶ 32.

¶ 19 However, for a successive petition to even be filed, the trial court must

first determine whether the petition (1) states a colorable claim of actual

innocence (Edwards, 2012 IL 111711, ¶ 28) or (2) establishes cause and

prejudice (People v. Smith, 2014 IL 115946, ¶ 35). This standard is higher than

the normal first-stage "frivolous or patently without merit" standard applied to

initial petitions. Edwards, 2012 IL 111711, ¶¶ 25-29; Smith, 2014 IL 115946,

¶ 34 ("the cause-and-prejudice test for a successive petition involves a higher

standard than the first-stage frivolous or patently without merit standard that is

set forth in section 122-2.1(a)(2) of the Act").

¶ 20 Since a filed successive petition has already satisfied a higher standard,

the first stage is rendered unnecessary and the successive petition is docketed

directly for second-stage proceedings. See People v. Sanders, 2016 IL 118123,

8
 No. 1-14-3025

¶¶ 25, 28 (with a successive petition, the initial issue before the trial court is

whether it "should be docketed for second-stage proceedings"); People v.

Wrice, 2012 IL 111860, ¶ 90 ("reversing the trial court's order denying leave to

file his second successive postconviction petition and remand[ing] to the trial

court for *** second-stage postconviction proceedings"); People v. Jackson,

2015 IL App (3d) 130575, ¶ 14 ("When a defendant is granted leave to file a

successive postconviction petition, the petition is effectively advanced to the

second stage of postconviction proccedings."); People v. Almodovar, 2013 IL

App (1st) 101476, ¶ 1 (reversing the trial court's denial of the defendant's

motion for leave to file a successive petition and remanding for second-stage

proceedings).

¶ 21 If a trial court permits a successive petition to be filed or does not dismiss

an initial petition at the first stage, the petition then advances to the second

stage, where counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4

(West 2014); Domagala, 2013 IL 113688, ¶ 33; Wrice, 2012 IL 111860, ¶ 90

(after reversing the trial court's denial of leave to file a successive petition, the

supreme court remanded "for appointment of postconviction counsel and

second-stage postconviction proceedings"). After counsel determines whether

to amend the petition, the State may file either a motion to dismiss or an answer

to the petition. 725 ILCS 5/122-5 (West 2012); Domagala, 2013 IL 113688,

9
 No. 1-14-3025

¶ 33. At the second stage, the trial court must determine "whether the petition

and any accompanying documentation make a substantial showing of a

constitutional violation." People v. Edwards, 197 Ill. 2d 239, 246 (2001).

¶ 22 "The second stage of postconviction review tests the legal sufficiency of

the petition. Unless the petitioner's allegations are affirmatively refuted by the

record, they are taken as true, and the question is whether those allegations

establish or 'show' a constitutional violation. In other words, the 'substantial

showing' of a constitutional violation that must be made at the second stage

[citation] is a measure of the legal sufficiency of the petition's well-pled

allegations of a constitutional violation, which if proven at an evidentiary

hearing, would entitle petitioner to relief." (Emphasis in original.) Domagla,

2013 IL 113688, ¶ 35.

¶ 23 Both the second stage and a motion for leave to file a successive petition

require a review of "the petition and any accompanying documentation."

Edwards, 197 Ill. 2d at 246 (second stage review); Edwards, 2012 IL 11171,

¶ 24 (motion for leave to file a successive petition). For the second stage to not

be superfluous for a successive petition, it must be that the "substantial

showing" required at the second stage is greater than the "probability" required

for a successive petition to receive leave for filing. Smith, 2014 IL 115946, ¶ 29

10
 No. 1-14-3025

(expressing a desire not to "render the entire three-stage postconviction process

superfluous").

¶ 24 If the defendant makes a "substantial showing" at the second stage, then

the petition advances to a third-stage evidentiary hearing. Domagala, 2013 IL

113688, ¶ 34. At a third-stage evidentiary hearing, the trial court acts as

factfinder, determining witness credibility and the weight to be given particular

testimony and evidence, and resolving any evidentiary conflicts. Domagala,

2013 IL 113688, ¶ 34. This third stage is the same for both initial and

successive petitions. Cf. Smith, 2014 IL 115946, ¶ 29 ("The legislature clearly

intended for further proceedings on successive postconviction petitions.").

¶ 25 II. Successive Petition

¶ 26 Although our supreme court has made clear that the Act contemplates

only one postconviction proceeding, "[n]evertheless, [the supreme] court has, in

its case law provided two bases upon which the bar against successive

proceedings will be relaxed" (Edwards, 2012 IL 111711, ¶ 22). Those two

bases are: (1) cause and prejudice; and (2) actual innocence. Edwards, 2012 IL

111711, ¶ 22. Defendant has alleged only the first on the instant appeal, so we

discuss only this basis below.

¶ 27 Under the cause-and-prejudice test, a defendant must establish both: (1)

cause for his or her failure to raise the claim earlier; and (2) prejudice stemming

11
 No. 1-14-3025

from his or her failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People

v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)).

¶ 28 Our supreme court has held that "a defendant's pro se motion for leave to

file a successive postconviction petition will meet the section 122-1(f) cause

and prejudice requirement if the motion adequately alleges facts demonstrating

cause and prejudice." Smith, 2014 IL 115946, ¶ 34. "[L]eave of court to file a

successive postconviction petition should be denied when it is clear, from a

review of the successive petition and the documentation submitted by the

petitioner, that the claims alleged by the petitioner fail as a matter of law or

where the successive petition with supporting documentation is insufficient to

justify further proceedings." Smith, 2014 IL 115946, ¶ 35.

¶ 29 III. Standard of Review

¶ 30 Next, we discuss the appropriate standard of review for defendant's claim

of cause and prejudice.

¶ 31 In Smith, the issue was whether the Act prohibited the denial of leave

when the pleadings of the petition made an " 'arguable' " showing of cause and

prejudice. Smith, 2014 IL 115946, ¶ 25 (quoting the defendant's petition). The

Smith court observed that the standard of review for "this issue of statutory

construction" was de novo. Smith, 2014 IL 115946, ¶ 21. However, the Smith

court did not explicitly state, after resolving this issue of statutory construction,

12
 No. 1-14-3025

whether the standard of review for a trial court's grant or denial of leave to file a

successive petition was then also de novo.

¶ 32 Since cause-and-prejudice claims may fail either as a matter of law or

due to an insufficiency of the petition and supporting documents, we conclude,

as have other appellate courts, that a de novo standard of review also applies.

People v. Diggins, 2015 IL App (3d) 130315, ¶ 7 (applying a de novo standard

of review to the trial court's denial of the defendant's motion to file a successive

petition alleging cause and prejudice, because this issue is "resolved on the

pleadings" alone); People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 38

(applying a de novo standard of review to the trial court's denial of the

defendant's motion to file a successive petition alleging cause and prejudice).

See also People v. Wrice, 2012 IL 111860, ¶ 50 (applying a de novo standard of

review to the State's arguments concerning lack of prejudice to the defendant,

since these "arguments raise purely legal issues").

¶ 33 When our review is limited to documentary materials, as it is here, then

our review is generally de novo. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d

147, 154 (2007) ("Where the circuit court does not hear testimony and bases its

decision on documentary evidence, the rationale underlying a deferential

standard of review is inapplicable and review is de novo."); Dowling v. Chicago

Options Associates, Inc., 226 Ill. 2d 277, 285 (2007) (where the trial court "did

13
 No. 1-14-3025

not conduct an evidentiary hearing" or "make any findings of fact," and "relied

on the parties' oral argument and the record," "we review the court's ruling on

this issue de novo").

¶ 34 Thus, we will apply a de novo review to both of defendant's claims. De

novo consideration means that we perform the same analysis that a trial judge

would perform. In re N.H., 2016 IL App (1st) 152504, ¶ 50 (citing Khan v.

BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011)).

¶ 35 IV. The Record

¶ 36 The next question is what we are permitted to review. In Smith, our

supreme court held that: "leave of court to file a successive postconviction

petition should be denied when it is clear, from a review of the successive

petition and the documentation submitted by the petitioner, that the claims

alleged by the petitioner fail as a matter of law or where the successive petition

with supporting documentation is insufficient to justify further proceedings."

(Emphases added.) Smith, 2014 IL 115946, ¶ 35.

¶ 37 Thus, we must certainly consider the pro se petition itself and any

supporting documentation that defendant provided. Edwards, 2012 IL 111711,

¶ 24. However, the Smith court left open the question of whether we and the

trial court may consider the underlying record. The Smith court stated: "The

parties have not argued or briefed whether the trial court may consider the

14
 No. 1-14-3025

record in ruling on a petition brought under section 122-1(f) of the Act.

Accordingly, we do not address that issue." Smith, 2014 IL 115946, ¶ 35 n.3.9

¶ 38 After making this observation, the Smith court then proceeded to discuss

what happened at trial. Smith, 2014 IL 115946, ¶ 37. However, before

discussing the events and statements at trial, the court stated that these facts

were "undisputed." Smith, 2014 IL 115946, ¶ 37. Based on the prior footnote

and the court's statement that these facts were undisputed, it is unclear whether

these facts were in the petition and supporting documentation before the court.

¶ 39 As in Smith, the Edwards court relied primarily on the failings found on

the face of the petition and supporting documentation when it affirmed the trial

court's denial of leave. In Edwards, the supreme court found "no indication"

that the defendant had tried to subpoena his alibi witnesses, who were both

known to the defendant at the time of trial, and thus their affidavits did not

qualify as "newly discovered" evidence. Edwards, 2012 IL 111711, ¶¶ 35-37.

The supreme court stated that "there was no attempt to subpoena" and "no

explanation as to why." Edwards, 2012 IL 111711, ¶ 37. If the petition had

alleged an attempt and offered an explanation, then there would have been some

9
Section 122-2.1 provides that, "after the filing" of the petition, "the court
may examine the court file of the proceeding in which the petitioner was
convicted." 725 ILCS 5/122-2.1 (West 2014). However, in the instant appeal, we
are considering a petition that has not yet been filed, which explains why the Smith
court observed that this was an open issue.
15
 No. 1-14-3025

"indication." Edwards, 2012 IL 111711, ¶¶ 36-37. Thus, the failings found

were apparent on the face of the petition itself.

¶ 40 In addition, the Edwards court found that the codefendant's affidavit did

not raise a colorable claim of actual innocence when the defendant was

convicted under a theory of accountability and the affidavit did "not assert that

petitioner was not present when the shooting took place." (Emphasis in

original.) Edwards, 2012 IL 111711, ¶¶ 38-39. Again, the failing found was

apparent on the face of the documentation itself.

¶ 41 As of today, there are no published Illinois cases discussing Smith's

footnote 3 (Smith, 2014 IL 115946, ¶ 35 n.3), except for one by the same author

of this opinion raising the same issue. People v. Jones, 2016 IL App (1st)

123371, ¶ 79.

¶ 42 Until our supreme court resolves this issue, we will rely primarily on the

petition and its supporting documentation in deciding this preliminary question

of whether the petition may even be filed. In addition, we will take judicial

notice of our prior opinions and orders. Shotts, 2015 IL App (4th) 130695, ¶¶ 7,

71. See also Village of Riverwoods v. BG Limited Partnership, 276 Ill. App. 3d

720, 724 (1995) (a court may properly take judicial notice of publicly available

records "where such notice will aid in the efficient disposition of a case" (cited

with approval by Wackrow v. Niemi, 231 Ill. 2d 418, 421 n.1 (2008))); In re

16
 No. 1-14-3025

McDonald, 144 Ill. App. 3d 1082, 1084 (1986) (a court may take judicial notice

of matters of record in other cases in the same court).

¶ 43 From the perspective of the orderly administration of justice, it makes

sense to review primarily at this very preliminary stage the documents filed by

defendant rather than the entire trial court record. As we explained in the prior

section on the postconviction stages, the postconviction process provides other

stages where a petition may be more substantially judged. Edwards, 197 Ill. 2d

at 246 ("a substantial showing" is not required until the second stage). The

Smith court observed: "From a practical standpoint, if a petitioner is required

to establish cause and prejudice conclusively prior to being granted leave to file

a successive petition, it may render the entire three-stage postconviction process

superfluous." Smith, 2014 IL 115946, ¶ 29 ("The legislature clearly intended for

further proceedings on successive petitions.").

¶ 44 Both Edwards and Smith discussed the amount of documentation which

the defendant must submit at this preliminary stage. In Edwards, the supreme

court stated: "Defendant not only has the burden to obtain leave of court, but

also 'must submit enough in the way of documentation to allow a circuit court

to make that determination.' " Edwards, 2012 IL 111711, ¶ 24 (quoting People

v. Tidwell, 236 Ill. 2d 150, 161 (2010)). In Smith, the supreme court observed

that "the legislature intended that the cause-and-prejudice determination be

17
 No. 1-14-3025

made on the pleadings prior to the first stage," that defendant must "allege[]

facts demonstrating cause and prejudice," and that he must " 'submit enough in

the way of documentation to allow a circuit court to make that determination.' "

Smith, 2014 IL 115946, ¶¶ 33-35 (quoting Tidwell, 236 Ill. 2d at 161).

¶ 45 Thus, we will now review defendant's two claims primarily in light of the

documentation he submitted, as well as our prior opinions and orders.

¶ 46 V. Cause

¶ 47 As we noted above, under the cause-and-prejudice test, a defendant must

first establish cause for his or her failure to raise the claim earlier. Edwards,

2012 IL 111711, ¶ 22 (citing People v. Pitsonbarger, 205 Ill. 2d 444, 459

(2002)). Defendant argues that he established cause because he could not have

raised claims based on Miller in his original 2008 petition, when Miller was not

even decided until 2012. See also People v. Nieto, 2016 IL App (1st) 121604,

¶ 39 ("Illinois procedural rules regarding forfeiture cannot be applied to

juvenile defendants raising claims under Miller"); People v. Warren, 2016 IL

App (1st) 090884-C, ¶ 48 (defendant was not barred from raising his challenge

on appeal from the denial of leave to file a successive petition, where "Miller

was not available for earlier postconviction proceedings"); People v. Sanders,

2016 IL App (1st) 121732-B, ¶ 19 (Miller "changed the law and give

18
 No. 1-14-3025

postconviction petitioners cause for failing to raise the issue in proceedings that

preceded" it).

¶ 48 In addition, in 2014, the Illinois Supreme Court held in People v. Davis,

2014 IL 115595, ¶¶ 28, 42, both that Miller applied retroactively and that

"Miller's new substantive rule constitutes 'cause' because it was not available

earlier." Similarly, the United States Supreme Court held two years later that

Miller applied retroactively. Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct.

718, 735-36 (2016) (after Miller, juveniles who received mandatory or

automatic life without parole "must be given the opportunity to show their

crime did not reflect irreparable corruption" as opposed to transient

immaturity).

¶ 49 On appeal, the State does not argue that defendant failed to establish

cause. Instead, the State argues that "irrespective of whether or not defendant

can show the requisite 'cause,' he cannot establish any 'prejudice' " because (1)

Miller does not apply to defendant's sentence of a certain number of years; and

(2) Illinois courts have previously rejected other constitutional challenges to the

automatic transfer provision.

¶ 50 Thus, we will proceed to consider next whether defendant has established

prejudice, considering each of his claims separately: his claim that his 50-year

sentence violates the eighth amendment; and his claim that the automatic

19
 No. 1-14-3025

transfer provision violates due process, the proportionate penalties clause and

the eighth amendment.

¶ 51 VI. 50-Year Sentence

¶ 52 Defendant argues that his 50-year sentence violates the eighth

amendment's ban on cruel and unusual punishments, particularly in light of the

fact that our legislature recently changed the law governing firearm

enhancements. When defendant was sentenced, a firearm enhancement was

mandatory. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002). However, effective

this year, the legislature specifically added a provision, so that firearm

enhancements are no longer mandatory for juvenile defendants. Pub. Act 99-69,

§ 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(b)); Pub. Act 99-258, §

15 (eff. Jan. 1, 2016) (same).

¶ 53 Effective this year, our legislature made significant changes to the law

governing the sentencing of juvenile defendants. First, the legislature raised the

age under the automatic transfer statute from 15 to 16 years old, so that 15-year-

olds are no longer subject to automatic transfer to adult court for first-degree

murder and other crimes. Pub. Act 99-258, § 5 (eff. Jan. 1, 2016) (amending

705 ILCS 405/5-130(1)(a) (West 2014)).10 Second, the legislature eliminated

the mandatory firearm enhancement for juvenile defendants. Pub. Act 99-69, §
10
This change has no effect on the issues at bar because defendant was 16,
not 15, years old at the time of the offense.
20
 No. 1-14-3025

10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(b)); Pub. Act 99-258, § 15

(eff. Jan. 1, 2016) (same). The enhancement is now discretionary for juveniles.

Third, the legislature eliminated the mandatory life sentences which had been

previously required for juveniles who had murdered individuals in certain

categories, such as police officers and emergency medical technicians. Pub. Act

99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(c)); Pub. Act 99-

258, § 15 (eff. Jan. 1, 2016) (same). Instead of the mandatory life sentence

previously required for this type of first-degree murder, the legislature required

the imposition of "not less than 40 years of imprisonment." Pub. Act 99-69, §

10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(c)); Pub. Act 99-258, § 15

(eff. Jan. 1, 2016) (same).

¶ 54 When defendant was sentenced, he was subject to a sentencing range

with a minimum of 45 years and a maximum of natural life. The trial court

sentenced him within that range, to a sentence of 60 years, which the appellate

court reduced to 50 years. Today, for the same offense, defendant would have

faced a sentencing range with a minimum of 20 years (730 ILCS 5/5-4.5-20(a)

(West 2014)) and a maximum of natural life. 11

11
The maximum sentence for first-degree murder is typically 60 years. 730
ILCS 5/5-4.5-20(a) (West 2014). However, in its discretion, the trial court may
impose on a juvenile a firearm enhancement of 25 years or up to a term of natural
life. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West Supp. 2015) ("if, during the commission
of the offense, the person personally discharged a firearm that proximately caused
21
 No. 1-14-3025

¶ 55 Defendant's 50-year sentence is within today's permissible sentencing

range of 20 years to natural life. Thus, defendant's sentence is not excessive

when measured against the standard of today's statutes, which were newly

revised by our legislature in light of the recent changes in case and statutory law

which defendant now argues on appeal.

¶ 56 If our supreme court12 believes that our legislature's changes did not go

far enough to comply with recent United States Supreme Court law or that the

changes should apply retroactively to defendant despite an express legislative

statement to the contrary, 13 that is for our highest court to decide. The decision

to resentence every similarly situated defendant should not be made at the

*** death *** 25 years or up to a term of natural life shall be added to the term of
imprisonment"); 730 ILCS 5/5-4.5-105(b) (West Supp. 2015) (the trial court may,
in its discretion, impose or decline to impose on a juvenile any otherwise
applicable firearm enhancement).
12
Compare People v. Wilson, 2016 IL App (1st) 141500, ¶ 35 (observing
that the task of drawing a different line is up to "the Illinois or United States
Supreme Court" not the appellate court, in a case where a 17-year-old was
sentenced to 31 years in prison) with People v. Nieto, 2016 IL App (1st) 121604,
¶¶ 4, 12, 14 n.1, 49 (remanding for resentencing, where a 17-year-old was
sentenced to 78 years in prison with an expected release age of 94 and "where the
record affirmatively indicates that the trial court has deviated from the principles"
governing the sentencing of juveniles).
13
The legislature's 2016 changes state specifically that they apply only "[o]n
or after the effective date of this amendatory Act of the 99th General Assembly,
when a person commits an offense and the person is under 18 years of age at the
time of the commission of the offense." Pub. Act. 99-69, § 10 (eff. Jan. 1, 2016)
(adding 730 ILCS 5/5-4.5-105(a)); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016)
(same). See also People v. Wilson, 2016 IL App (1st) 141500, ¶ 16 (interpreting
this provision, this court held that, "based on its plain language, the legislature
indicated a prospective application of the statute").
22
 No. 1-14-3025

appellate court level. A finding of prejudice on the ground that defendant's 50-

year sentence violated the eighth amendment would both call into question the

new sentencing scheme that our legislature just adopted in response to Miller,

and would prompt a call to resentence every juvenile serving a sentence of 50

years or more.

¶ 57 If an Illinois court was going to hold that a de facto life sentence qualifies

for consideration under Miller, then we would need a consistent and uniform

policy on what constitutes a de facto life sentence. Is it simply a certain age

upon release? If so, is it age 65, as defendant seems to argue for in his appellate

brief, or 90? 14 Should the age vary by ethnicity, race or gender? If we are

going to consider more than age, what societal factors or health concerns should

impact our assessment of a de facto life sentence. These are policy

considerations that are better handled in a different forum.

¶ 58 In light of our supreme court's holding in Davis that Miller permits a

juvenile sentence of natural life without parole so long as the sentence is

14
Compare Nieto, 2016 IL App (1st) 121604, ¶¶ 14 n.1, 49 (remanding for
resentencing where the juvenile's expected release age was 94) and People v.
Sanders, 2016 IL App (1st) 121732-B, ¶¶ 1-2 (reversing the denial of leave to file a
successive petition where a 17-year-old received a 100-year sentence), with
Wilson, 2016 IL App (1st) 141500, ¶ 35 (rejecting a Miller challenge where a 17-
year-old received a 31-year sentence). See also People v. Reyes, 2016 IL 119271,
¶¶ 10, 12 (per curiam) (remanding for resentencing where the juvenile's expected
release age was 105, while observing that a 32-year sentence is "not a de facto life
sentence" for a 16-year-old).
23
 No. 1-14-3025

discretionary (Davis, 2014 IL 115595, ¶ 43),15 this court cannot find prejudice

based on the ground that defendant's 50-year sentence is excessive or in

violation of the eighth amendment's cruel and unusual penalties clause. See

also Davis, 2014 IL 115595, ¶ 32 ("We hold that Miller did not render the

statutory scheme under which defendant was sentenced facially

unconstitutional.") As our supreme court has observed, "leave of court to file a

successive postconviction petition should be denied when it is clear, from a

review of the successive petition and the documentation submitted by the

petitioner, that the claims alleged by the petitioner fail as a matter of law."

Smith, 2014 IL 115946, ¶ 35.

¶ 59 VII. Automatic Juvenile Transfer

¶ 60 Defendant also claims that the automatic transfer provision of Illinois'

Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2002)) violates due

process, the proportionate penalties clause of the Illinois Constitution (Ill.

Const. 1970, art. I, § 11), and the eighth amendment (U.S. Const., amend. VIII).

¶ 61 The automatic juvenile transfer provision provides, in relevant part, that:

15
See also Montgomery, 577 U.S. at __, 136 S.Ct. at 736 (holding that the
Miller court did not bar life without parole, although it concluded that "the
sentence of life without parole is disproportionate for the vast majority of juvenile
offenders" and that juveniles "must be given the opportunity to show their crime
did not reflect irreparable corruption").
24
 No. 1-14-3025

"(1)(a) The definition of delinquent minor under Section 5-120 of this

Article shall not apply to any minor who at the time of an offense was at

least 16 years of age and who is charged with: (i) first degree murder [.]

****

These charges and all other charges arising out of the same incident shall

be prosecuted under the criminal laws of this State." 705 ILCS 405/5-

130 (West Supp. 2015).

¶ 62 At the time of the offense in question, the provision provided, in relevant

part, that:

"(1)(a) The definition of delinquent minor under Section 5-120 of this

Article shall not apply to any minor who at the time of an offense was at

least 15 years of age and who is charged with first degree murder[.]

****

These charges and all other charges arising out of the same incident shall

be prosecuted under the criminal laws of this State." 705 ILCS 405/5-

130 (West 2002).

¶ 63 The key difference between the two provisions is that the former

provision applied to 15-year-old minors, whereas the current provision applies

only to minors who are 16 years or older. However, as we observed above, this

25
 No. 1-14-3025

difference has no effect on our case, because the minor in the instant case was

16 years old at the time of the offense.

¶ 64 On appeal, defendant argues that we should find that the Illinois Supreme

Court's decision in People v. Patterson, 2014 IL 115102, was "incorrectly

decided." In Patterson, our supreme court rejected due process challenges to

the automatic transfer statute, as well as challenges made under the eighth

amendment (U.S. Const., amend. VIII) and the Illinois proportionate penalties

clause (Ill. Const. 1970, art. I, § 11). Patterson, 2014 IL 115102, ¶¶ 35, 89, 98,

100, 106. We decline defendant's invitation to find that Patterson was wrongly

decided. Wilson, 2016 IL App (1st) 141500, ¶ 29 (applying Patterson, after the

2016 United States Supreme Court decision in Montgomery, 577 U.S. __, 136

S.Ct. 718).16

¶ 65 CONCLUSION

On this appeal, defendant challenged the trial court's denial of his motion

for leave to file a successive petition. His motion and petition had argued: (1)

that a 50-year sentence for a minor violates the eighth amendment's prohibition

against cruel and unusual punishment (U.S. Const., amend. VIII), pursuant to

16
In his reply brief, defendant states that he "recognizes that this Court is
bound by Patterson, but maintains, given the continuing evolving law in this area
and in order to preserve this issue for further appeals, that Patterson was wrongly
decided." Similarly, this court respects the need to preserve the issue for further
appeal, while remaining bound to apply Patterson.
26
 No. 1-14-3025

recent decisions concerning minors by the United States Supreme Court; and

(2) that the automatic transfer provision of Illinois' Juvenile Court Act of 1987

(705 ILCS 405/5-130 (West 2002)) violates due process, the proportionate

penalties clause of the Illinois constitution (Ill. Const. 1970, art. I, § 11), and the

eighth amendment (U.S. Const., amend. VIII).

¶ 66 For the foregoing reasons, we do not find persuasive defendant's

arguments that he established the prejudice needed to file a successive petition.

As a result, we affirm the trial court's denial of leave.

¶ 67 Affirmed.

27