People v. Jackson

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Appellate Court Date: 2017.01.03
10:57:24 -06'00'

People v. Jackson, 2016 IL App (1st) 143025

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DARRON JACKSON, Defendant-Appellant.

District & No. First District, Fifth Division
Docket No. 1-14-3025

Filed September 30, 2016

Decision Under Appeal from the Circuit Court of Cook County, No. 03-CR-22273; the
Review Hon. Noreen Valeria Love, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Patricia Mysza, and Sharon Goott Nissim, of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Mary P. Needham, and Margaret G. Lustig, Assistant State’s
Attorneys, of counsel), for the People.

Panel 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 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 the 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).
¶3 The trial court denied defendant leave to appeal, and it is this order that 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 under Supreme Court Rule 23)) and affirming the dismissal of his
first postconviction petition (People v. Jackson, No. 1-08-1546 (2009) (unpublished order
under 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 accordingly and returned a verdict of guilty, and defendant was sentenced by the
trial court on September 28, 2004, to 60 years in IDOC.

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.

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¶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 under Supreme Court Rule 23). A
year after his appeal, 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 under 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 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
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).
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 74 years. Centers for Disease Control and Prevention, National Vital Statistics Reports,
Vol. 64, No. 11, at 3 (Sept. 22, 2015), 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.

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 punishment, as that term has been recently interpreted by the United States Supreme Court in
Miller, 567 U.S. at ___, 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 punishments’ ”). 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. at ___, 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 Juvenile Court Act
of 1987 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 5/5-8-1(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 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 that 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

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).

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 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, ¶ 35 (“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, ¶¶ 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, ¶ 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.) Domagala, 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 111711, ¶ 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 (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

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 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 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,
whether the standard of review for a trial 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,

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 ¶ 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 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 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 “indication.” Edwards, 2012 IL
111711, ¶¶ 36-37. Thus, the failings found were apparent on the face of the petition itself.

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.

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¶ 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 Ltd. 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 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 that 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
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,

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 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 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 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
(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 that had been previously required for juveniles who had murdered

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.

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 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
¶ 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 that 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 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

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 *** 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”).

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 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 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 the 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:
“(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).

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).
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”).

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¶ 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 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
¶ 66 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 recent decisions concerning minors by the United States
Supreme Court and (2) that the automatic transfer provision of the 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).
¶ 67 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.

¶ 68 Affirmed.

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.

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