People v. Handy

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Appellate Court Date: 2020.12.31
12:38:46 -06'00'

People v. Handy, 2019 IL App (1st) 170213

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

District & No. First District, Fourth Division
No. 1-17-0213

Filed December 26, 2019
Rehearing denied January 27, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 97-CR-11558; the
Review Hon. James B. Linn, Judge, presiding.

Judgment Affirmed.

Counsel on Barry M. Lewis, of Chicago, for appellant.
Appeal
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Annette Collins, Assistant State’s Attorneys, of counsel), for the
People.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Justices Reyes and Burke concurred in the judgment and opinion.
 OPINION

¶1 Defendant, Dante Handy, appeals the judgment of the circuit court denying him leave to
file a successive postconviction petition, arguing that he has met the “cause and prejudice” test.
In 1998, he received a discretionary sentence of four consecutive 30-year prison terms for
crimes he committed when he was 18½ years old. Thereafter, a portion of the sentencing code
was ruled a violation of the single subject rule, and defendant’s 102-year real time prison term
(i.e., 85% of his 120-year sentence, until he was 120½ years old) was subsequently converted
to a 60-year real time term, whereby he would become eligible for mandatory supervised
release at age 78½ years.
¶2 On appeal, defendant argues that his sentence is unconstitutional as applied to him under
the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and the
proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). He
contends that his sentence is a de facto life sentence, such sentences are categorically barred
as unconstitutional with respect to minors, and Illinois courts have recognized that there is no
fine demarcation between offenders just under the age of 18 years and those just over it. He
also argues that he has shown rehabilitative potential and this cause should be sent to the trial
court for resentencing.
¶3 For the reasons that follow, we hold that defendant did not establish prejudice for leave to
file his successive postconviction petition because he was an adult at the time he committed
and significantly participated in the offenses of armed robbery, home invasion, residential
burglary, aggravated battery of a senior citizen, kidnapping, aggravated criminal sexual assault,
and possession of a stolen motor vehicle. Also, the trial court properly considered relevant
factors concerning defendant before imposing his discretionary sentence. Accordingly, we
affirm the judgment of the circuit court. 1

¶4 I. BACKGROUND
¶5 Following a 1998 jury trial, defendant was found guilty of three counts of aggravated
criminal sexual assault, aggravated kidnapping, home invasion, two counts of armed robbery,
aggravated battery of a senior citizen, residential burglary, and possession of a stolen motor
vehicle. At the trial, the State’s evidence showed that on February 23, 1997, defendant and
three codefendants, all carrying firearms, invaded the home of a family at about 4 a.m.
Defendant and the codefendants robbed, threatened and hit family members at gunpoint, and
kidnapped and repeatedly sexually assaulted a 15-year-old girl.
¶6 Specifically, the victim, Mr. W., was sitting in his van, which was parked in his driveway,
and waiting for the vehicle’s engine to warm up. His family was inside the house sleeping.
Defendant and the three codefendants surrounded Mr. W.’s van, ordered him out of the van at
gunpoint, and robbed him of about $7 and cigarettes. All four offenders ordered him to open
the garage attached to his house, forced him into the house, and followed him inside. All four
offenders had their guns pointed at Mr. W.’s head as they followed him down the hallway
where the bedrooms were located. Mr. W.’s 74-year-old mother, Mrs. W., was asleep in her
room with his twin 6-year-old daughters. Mr. W. turned on the light and told Mrs. W. to wake

In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
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appeal has been resolved without oral argument upon the entry of a separate written order.

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 up. Defendant held a gun to Mr. W.’s head and forced him to initially kneel and eventually lie
down on the hallway floor, facing a corner and with his hands on his head. The offenders
cursed at the twins, threatened to kill Mr. W., and continually repeated gang slogans. While
defendant held a gun to the back of Mr. W.’s head, codefendant Sammy Lowery robbed Mrs.
W. of about $12.
¶7 Then defendant and another codefendant busted into the bedroom of Mr. W.’s 15-year-old
daughter. Defendant accused her of being on the phone, and the other codefendant snatched
her off her bed and brought her to the hallway. Lowery grabbed her and took her into Mr. W.’s
bedroom while defendant returned to the hallway and held his gun to the back of Mr. W.’s
head. Lowery took off the teen victim’s pajama shorts and underwear, told her to “suck his
d***,” and exposed his penis. Mrs. W. forced her way into the bedroom and tried to stop
Lowery by pulling his hands and arms, but Lowery swung at Mrs. W. and threw her off him,
causing her to hit the walls, door, and furniture. Mrs. W. continued to struggle with Lowery,
who struck her and knocked her down, fracturing her finger and bruising her shoulder.
¶8 Mrs. W. refused to stop fighting, so Lowery took the teen victim back to her own bedroom
and attempted to sexually assault her there. Mrs. W. followed them and continued to struggle
with Lowery as he dragged her granddaughter to the kitchen. By now, Mr. W. was also in the
kitchen area, near the garage door, and defendant continued to hold a gun to Mr. W.’s head.
Defendant told Mrs. W., “I should kill your motherf*** son.” Meanwhile, the two other
codefendants were taking items, like a video cassette recorder (VCR) and television, from the
house. Lowery dragged the teen victim to the den, but he went back into the kitchen because
Mrs. W. continued to pull him away from her granddaughter. Defendant and the two other
codefendants were yelling to go, but Lowery insisted that they had “to take the b*** with”
them. Lowery yanked the kitchen phone from the wall and told the family not to call the police.
While defendant held his gun to Mr. W.’s head, the other two codefendants left the house and
Lowery went back into the den, grabbed the teen victim by her arm, and pulled her from the
house while Mrs. W. held her granddaughter’s other arm and tried to pull her back. Mr. W. felt
defendant remove his gun from against Mr. W.’s head and then heard the door close and Mrs.
W. yelling outside. While Lowery pulled the teen victim toward her father’s van, Lowery
struck Mrs. W. with his hand that was holding his gun, causing Mrs. W. to fall down in the
snow. By the time Lowery pulled the teen victim into the van, defendant and the two other
codefendants were already in the van. Lowery pushed the teen victim to the back seat of the
van, and the van doors closed.
¶9 While one codefendant drove the van away from the house, defendant and the other
codefendant went to the back of the van where Lowery had begun raping the teen victim.
During the kidnapping, the four offenders repeatedly and violently took turns sexually
assaulting the victim, often two at a time. At one point, Lowery penetrated her vagina with his
penis, and defendant put his penis in her mouth. Then defendant argued with Lowery because
defendant wanted to get on top of the victim. Defendant kept saying, “I want some too.” So,
Lowery and defendant switched places, and defendant put his penis in the victim’s vagina
while Lowery put his penis in her mouth. Defendant screamed, moaned, and said that he was
“coming.” Then defendant drove the van while the codefendants continued gang raping the
victim.
¶ 10 The victim could not recall exactly how many times each of the four offenders sexually
assaulted her, saying, “It was too many times.” At one point, defendant told Lowery to put the

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 victim out of the van. When Lowery refused, defendant threatened to shoot the victim and
pointed his gun at her back. The whole time in the van, the offenders were yelling “GD” and
“BD.” They argued amongst themselves, each one telling the others to let him “get to” the
victim. They also talked about smoking marijuana when they were done and kept saying to
each other to “take her to 69th and Green.” Lowery even asked the victim several times if she
wanted to be his girlfriend. When the van stopped, all four offenders exited the van. The victim
tried unsuccessfully to start the van. She retreated to the back of the van before Lowery and
another codefendant got back in the van. While the codefendant drove, Lowery sexually
assaulted the victim again. When the codefendant stopped the van, he threatened to kill the
victim’s family if she told anyone what had happened and gave her directions to the
expressway. The codefendant and Lowery exited the van, and the victim drove home.
¶ 11 At about 5 a.m., defendant’s neighbor was returning home to her apartment, which was
across the hall from defendant’s apartment, when defendant ran up the stairs behind her,
carrying a revolver. She asked him a question, but he just went inside his apartment and
slammed the door closed. When she questioned his behavior, he cursed at her through the door.
The three codefendants arrived shortly thereafter, visibly carrying their guns. One of the
codefendants brought a television, and Lowery’s penis was sticking out of his pants. The
neighbor heard defendant say that he had never done anything like this before and was going
to kill himself.
¶ 12 Defendant was arrested in Texas on March 13, 1997, and brought back to Chicago. He
agreed to have his statement to the police reduced to a written summary. According to that
summary, defendant was drinking, smoking marijuana, and driving around with the three
codefendants. The codefendants forced Mr. W. out of his van at gunpoint and into his house.
Defendant followed them inside and held a codefendant’s gun on Mr. W. while the
codefendants robbed, threatened, and attacked the family. Defendant wanted to leave and
eventually entered the van and honked the horn to summon the three codefendants. The three
codefendants got in the van with the loot and teenage victim, and defendant drove off.
Defendant described in graphic detail how the codefendants raped the victim, in what manner,
how many times, and what they said as they did so. Then, one codefendant took over driving
the van and another codefendant told defendant to “go back there and get you some.”
Defendant went to the back of the van and, while no one else was on the victim, penetrated her
vagina with his penis. But then, when Lowery came over and put his penis in the victim’s
mouth, defendant pulled his penis out of the victim. Defendant resumed driving the van while
the codefendants continued to gang rape the victim. Eventually, defendant parked the van and
said, “F*** this, I’m out of here.” When the codefendants said that they should kill the victim,
defendant told them to just let her go. When defendant left the group, he ran home and told his
girlfriend what happened. A few days later, he took a plane to Texas because he was afraid of
being caught by the police.
¶ 13 Defendant testified at the trial and denied ever sexually assaulting the victim. He asserted
that he did not know that the codefendants had planned a robbery until it happened, he did not
intend to kidnap anyone, he did not have a gun, and someone else held a gun to Mr. W.’s head.
According to defendant, he merely stood in the house while the codefendants attacked and
robbed the family. Defendant was ready to leave because he did not “want things to go that far
as they were going” and “they [were] getting out of hand.” He claimed that he left the house

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 first, got in the driver’s seat of the van, and drove away once the codefendants entered the van
with the teen victim, who was wearing a nightgown.
¶ 14 After defendant drove about two blocks, he heard a noise in the back of the van. He stopped
the van in the middle of the street and noticed that the teen victim was naked and being raped.
Defendant told Lowery to “put the girl out,” but Lowery ordered him to keep driving.
Defendant continued driving and did not hear any more noise. Defendant struck a few parked
cars while driving, so Lowery ordered another codefendant to drive. While defendant sat in the
front passenger seat, he noticed that Lowery was raping the victim in the back of the van.
Defendant felt nervous, scared, and helpless to do anything. The victim “cried for a minute
because things started getting out of hand,” and a “simple *** robbery *** got carried away to
[where] somebody was kidnapped.” Defendant did not want “things” to go that far and “was
scared all the time” about what they would be “getting” if they “got caught.” When the van
stopped, defendant got out and ran to his apartment. The codefendants told defendant, who at
the time was in the “opposite gang and living in their territory,” to keep his mouth closed.
Defendant was afraid that the codefendants would harm his girlfriend or his two-year-old
daughter.
¶ 15 Defendant testified that the detective who questioned him threatened him, shoved him back
against the mirror in the interrogation room, and pulled his braids. When defendant refused to
answer the questions of the assistant state’s attorney and requested a lawyer, the detective told
defendant he would not get a lawyer until he answered the questions. Defendant felt nervous
when the assistant state’s attorney told him about the potential penalty he was facing.
¶ 16 At the sentencing hearing, the court considered defendant’s postsentencing investigation
report, which indicated that his birthday was August 17, 1978. Defendant reported that his
childhood was easy, his mother took good care of him, and no one in his immediate family had
any substance abuse problems. Although he did not have a relationship with his father, he was
close to his adopted brother. Defendant had one child and was a former gang member, and his
criminal background included two juvenile adjudications, for which he served unsatisfactory
probation terms, and an adult conviction for unlawful use of a weapon, for which he received
18 months’ probation that he was serving at the time of the offense in this case. He received
“B” and “C” grades in high school and completed the tenth grade but dropped out due to gang
problems at the school. He was treated in 1997 for a head injury incurred following a gang
“violation” beating but reported his health as “cool.” Regarding the offense at issue here,
defendant stated that he made a mistake, chose to hang around with the wrong people, and
wished that he could have a chance to prove to society that he was not the criminal “they”
portrayed him to be.
¶ 17 In aggravation, Mrs. W. described the continuing effects of the brutal attack on her family.
She described the trauma defendant inflicted on her son, Mr. W., when defendant held him at
gunpoint and rendered him helpless while the codefendant’s attacked his family. The State
sought the maximum 120-year sentence for each offender and recounted the senseless and
brutal nature of the crimes committed by all four defendants. The State argued that the
defendants lacked any rehabilitative potential and had slept, laughed, or joked during the court
proceedings as if this matter was no big deal.
¶ 18 In mitigation, counsel argued that defendant was less culpable than the codefendants and
showed remorse after the crime when he said that he wanted to kill himself. Counsel argued
that Lowery planned the crime and drove it forward, whereas defendant participated in the

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 sexual assault so briefly that the codefendants mocked him. Counsel also asserted that
defendant’s demeanor during the proceedings was attentive, appropriate, and “animated.”
Counsel urged the court not to impose the maximum sentence on defendant because he could
be rehabilitated and make some contribution as a mature or middle-aged person.
¶ 19 In allocution, defendant said that he was sorry for “what happened to” the W. family and
felt “real bad” something like this “happened to” them. He would take it back if he could and
did not know things were going to go so far. He “just made a poor decision” and asked for the
court’s mercy so that he could show society that he can be a better person when he is released
from prison.
¶ 20 The trial court imposed on defendant the maximum sentence of four consecutive prison
terms of 30 years each for home invasion and three counts of aggravated criminal sexual
assault, for a total of 120 years’ imprisonment. Defendant’s codefendants received the same
sentence. On appeal, defendant argued, inter alia, that his sentence was excessive because the
court was improperly influenced by the media attention and failed to consider his rehabilitative
potential based on his “individual circumstances,” which included the absence of an extensive
criminal history, beatings and ridicule from gang members, and his showing of remorse at
sentencing. This court affirmed the circuit court’s judgment on direct appeal. People v. Handy,
328 Ill. App. 3d 1087 (2002) (table) (unpublished order under Illinois Supreme Court Rule 23).
Ultimately, however, defendant’s sentence was converted to 60 years in prison before he would
become eligible for mandatory supervised release at age 78½ years; this conversion was due
to a portion of the sentencing code being ruled in violation of the single subject rule.
¶ 21 In his 2003 postconviction petition, defendant argued, inter alia, that appellate counsel
failed to argue that his sentence was disproportionate and excessive in light of his young age,
lack of a criminal history, and rehabilitative potential. This court affirmed the circuit court’s
summary dismissal of defendant’s 2003 postconviction petition. People v. Handy, 349 Ill. App.
3d 1036 (2004) (table) (unpublished order under Illinois Supreme Court Rule 23).
¶ 22 In 2011, defendant moved the circuit court for leave to file a successive postconviction
petition, which argued, inter alia, that he was deprived of due process because the truth-in-
sentencing law under which his sentence was imposed was an unconstitutional statutory
scheme. This court affirmed the circuit court’s denial of leave to file a successive
postconviction petition. People v. Handy, 2012 IL App (1st) 111067-U.
¶ 23 In November 2016, defendant moved the circuit court to file the successive postconviction
petition at issue in this appeal. His pro se petition argued that his 60-year prison sentence was
unconstitutional as applied to him under the eighth amendment of the United States
Constitution and the proportionate penalties clause of the Illinois Constitution. Specifically, he
argued that his sentence constitutes a de facto life sentence without the possibility of parole
and the trial court failed to consider the special circumstances of his youth. Regarding the
“cause and prejudice” test to obtain leave to file his successive petition, he argued that (1) the
law concerning the imposition of lengthy sentences on juveniles changed substantially after
his initial 2003 postconviction petition due to the recent decisions of Montgomery v. Louisiana,
577 U.S. ___, 136 S. Ct. 718 (2016), Miller v. Alabama, 567 U.S. 460 (2012), Graham v.
Florida, 560 U.S. 48 (2010), and People v. Davis, 2014 IL 115595, and (2) there was a
reasonable probability that he would have received a shorter sentence if the trial court had
correctly understood and applied the eighth amendment of the United States Constitution at
his sentencing hearing.

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¶ 24 On December 7, 2016, the circuit court denied defendant leave to file a successive
postconviction petition, and defendant timely appealed.

¶ 25 II. ANALYSIS
¶ 26 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) provides
a statutory remedy to criminal defendants who claim that substantial violations of their
constitutional rights occurred at trial. People v. Eddmonds, 143 Ill. 2d 501, 510 (1991). The
Act contemplates the filing of only one postconviction petition (People v. Flores, 153 Ill. 2d
264, 273 (1992)), providing that any claim not raised in the original or amended petition is
subject to the doctrines of res judicata and waiver (725 ILCS 5/122-3 (West 2016); People v.
Smith, 341 Ill. App. 3d 530, 535 (2003)). However, the filing of a successive postconviction
petition may be allowed where the proceedings on the initial petition were fundamentally
deficient. Flores, 153 Ill. 2d at 273-74. Specifically, the waiver provision can be lifted, and a
successive petition can be considered on the merits if it either meets the cause and prejudice
test of section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2016)) or its consideration is
necessary to prevent a fundamental miscarriage of justice because the defendant shows a claim
of actual innocence (People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)).
¶ 27 A defendant seeking to file a successive postconviction petition must first obtain leave of
court. People v. Tidwell, 236 Ill. 2d 150, 157 (2010). Here, defendant seeks leave to file his
successive postconviction petition under the cause and prejudice test of section 122-1(f) of the
Act, which provides:
“Only one petition may be filed by a petitioner under this Article without leave of the
court. Leave of court may be granted only if a petitioner demonstrates cause for his or
her failure to bring the claim in his or her initial post-conviction proceedings and
prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner
shows cause by identifying an objective factor that impeded his or her ability to raise a
specific claim during his or her initial post-conviction proceedings; and (2) a prisoner
shows prejudice by demonstrating that the claim not raised during his or her initial post-
conviction proceedings so infected the trial that the resulting conviction or sentence
violated due process.” 725 ILCS 5/122-1(f) (West 2016).
We review de novo the denial of a defendant’s motion for leave to file a successive
postconviction petition (People v. Wrice, 2012 IL 111860, ¶ 50) and may affirm the denial on
any ground of record (People v. Johnson, 208 Ill. 2d 118, 129 (2003)).
¶ 28 A defendant’s motion for leave to file a successive postconviction petition satisfies the
section 122-1(f) cause and prejudice requirement if the motion adequately alleges facts
demonstrating cause and prejudice. People v. Smith, 2014 IL 115946, ¶ 34. Moreover, the
cause and prejudice test for successive petitions involves a higher standard than the frivolous
or patently without merit standard applied to first-stage postconviction petitions. Id. ¶ 35. A
defendant seeking leave to file a successive petition must submit enough in the way of
pleadings and documentation to allow a circuit court to make an independent determination on
the legal question of whether adequate facts have been alleged for a prima facie showing of
cause and prejudice. Id.
¶ 29 If a defendant fails to adequately allege cause and prejudice, the circuit court does not reach
the merits of his successive petition because the cause and prejudice test is a procedural
prerequisite to obtaining that review. People v. Welch, 392 Ill. App. 3d 948, 955 (2009).

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 “If the court determines that cause and prejudice have been adequately alleged and
allows the petition to be filed, it advances to the three-stage process for evaluating
postconviction petitions. During this process, the State would have an opportunity to
seek dismissal of the petition on any grounds, including the defendant’s failure to prove
cause and prejudice for not having raised the claims in the initial postconviction
petition.” People v. Bailey, 2017 IL 121450, ¶ 26.
¶ 30 Our supreme court has 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.” Smith, 2014 IL 115946, ¶ 35.
¶ 31 Defendant asserts that he made the requisite showings of (1) cause, because the new
constitutional rule of Miller, 567 U.S. 460, applies retroactively to his sentence, and
(2) prejudice, because a de facto life sentence for a youth in any case other than homicide is
categorically barred under Graham, 560 U.S. 48. Specifically, defendant argues that his
sentence should be vacated and the matter remanded for resentencing because the categorical
bar to the imposition of life sentences without the possibility of parole on juveniles, as
established in Graham, logically should be extended to someone like him, who was only 18½
years old at the time of the offense. He argues that his 60-year real time sentence is a de facto
life sentence and Illinois courts have recognized that no clear line of demarcation has been
drawn between offenders just under 18 years of age and those just over it.
¶ 32 Defendant also argues that he showed rehabilitative potential by expressing remorse and
acknowledging that he had associated himself with very bad, remorseless individuals. He
contends that he should not have been sentenced identically to his three codefendants because
he was younger than them and the victim’s testimony described defendant committing just one
vaginal sex act and one oral sex act in contrast to the multiple sex acts committed by the three
codefendants, who ridiculed defendant for participating in the sexual assault for only a couple
of minutes. Moreover, defendant was beaten by his former gang for a “violation,” and his youth
and experience may have left him unable to resist the pressure of the three codefendants or of
the gangs themselves.
¶ 33 According to defendant, it is not necessary to have further hearings directly on his
successive postconviction petition because the appropriate sentence should be determined by
the trial court after a full hearing in aggravation and mitigation. Defendant asserts that his
sentencing hearing did not comport with Miller because the trial court’s sentencing order and
comments did not indicate that the court considered the mitigating evidence before it and
determined whether he was either a youthful offender whose crime reflected unfortunate yet
transient immaturity or the rare juvenile offender whose crime reflected irreparable corruption.
¶ 34 We first address defendant’s eighth amendment claim. The eighth amendment prohibits
“cruel and unusual punishments” and applies to the states through the fourteenth amendment.
U.S. Const., amends. VIII, XIV; Davis, 2014 IL 115595, ¶ 18. The United States Supreme
Court has held that the eighth amendment prohibits capital sentences for juveniles who commit
murder (Roper v. Simmons, 543 U.S. 551, 578-79 (2005)), mandatory life sentences for
juveniles who commit nonhomicide offenses (Graham, 560 U.S. at 82), and mandatory life
sentences for juveniles who commit murder (Miller, 567 U.S. at 489). People v. Buffer, 2019

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 IL 122327, ¶ 16. In Miller, 567 U.S. at 471, the Supreme Court stated that “children are
constitutionally different from adults for purposes of sentencing.” The lack of maturity and
underdeveloped sense of responsibility of children leads to “recklessness, impulsivity, and
heedless risk-taking.” Id. Children are also more vulnerable to negative influences and outside
pressures, have limited control over their own environment, and “lack the ability to extricate
themselves from horrific, crime-producing settings.” Id. Their character is not as well formed
as an adult’s, their traits are “less fixed,” and their actions are “less likely to be evidence of
irretrievabl[e] deprav[ity].” (Internal quotation marks omitted.) Id. Miller requires sentencing
courts in homicide cases to “take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 480. In
Montgomery, 577 U.S. at ___, 136 S. Ct. at 736, the Supreme Court found that Miller applies
retroactively.
¶ 35 The Illinois Supreme Court interpreted Miller to apply to discretionary life sentences,
finding that “[l]ife sentences, whether mandatory or discretionary, for juvenile defendants are
disproportionate and violate the eighth amendment, unless the trial court considers youth and
its attendant characteristics.” People v. Holman, 2017 IL 120655, ¶ 40. Before a trial court may
sentence a juvenile defendant to life without parole, the court must consider several factors,
including his age at the time of the offense and any evidence of his particular immaturity,
impetuosity, and failure to appreciate risks and consequences; his family and home
environment; his degree of participation in the homicide; and his prospects for rehabilitation.
Id. ¶ 46.
¶ 36 In People v. Harris, 2018 IL 121932, the 18-year-old defendant on direct appeal argued,
inter alia, that his mandatory minimum aggregate term of 76 years’ imprisonment violated the
proportionate penalties clause, noting that he had no prior criminal history and several other
attributes that reflected his rehabilitative potential. Our supreme court found that Miller did
not directly apply to the defendant because he was an adult. Id. ¶ 45. Moreover, his challenge
was premature because the record did not “contain evidence about how the evolving science
on juvenile maturity and brain development that helped form the basis for the Miller decision”
applied to the defendant’s specific facts and circumstances. Id. ¶ 46. The supreme court stated
that the record needed to be developed and defendant’s claim was more appropriate for another
proceeding, such as a proceeding under the Act. Id. ¶ 48. In Buffer, 2019 IL 122327, ¶ 41, our
supreme court held that, for purposes of juvenile offenders, a de facto life term is any sentence
over 40 years.
¶ 37 Here, defendant acknowledges that, at 18½ years old, he was not technically a juvenile at
the time of his offense. Nevertheless, he argues that the eighth amendment protection afforded
to juveniles under Miller should be extended to him. In Illinois, Miller’s eighth amendment
protection applies only to juveniles; natural life sentences for young adults have not been found
to violate the eighth amendment. For purposes of challenging life sentences without parole,
“the [Supreme] Court drew a line at the age of 18 years,” however arbitrary that line may be.
People v. Herring, 2018 IL App (1st) 152067, ¶ 103 (citing Roper, 543 U.S. at 574); see also
People v. LaPointe, 2018 IL App (2d) 160903, ¶ 47 (Miller does not apply to a life sentence
imposed on someone who was at least 18 at the time of the offense and so the defendant did
not show prejudice from omitting his eighth amendment claim from his initial postconviction
petition); People v. Pittman, 2018 IL App (1st) 152030, ¶ 31 (“Miller protections under the
eighth amendment are not implicated in cases of adult offenders”); People v. Thomas, 2017 IL

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 App (1st) 142557, ¶ 28 (sentence for an adult defendant “that approaches the span of the
defendant’s lifetime” does not implicate the eighth amendment). Defendant’s eighth
amendment challenge to his 60-year real time sentence fails.
¶ 38 Next, defendant asserts that his sentence violates the proportionate penalties clause of the
Illinois Constitution, which provides that “[a]ll penalties shall be determined both according
to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. I, § 11. We assume that the proportionate penalties claim is
not automatically defeated by the failure of defendant’s eighth amendment claim. See
LaPointe, 2018 IL App (2d) 160903, ¶¶ 51-53 (noting inconsistency about whether the eighth
amendment and proportionate penalties clause are coextensive and should be interpreted in
“lockstep”). Defendant seeks to extend the reasoning in Miller to young adults under the
proportionate penalties clause.
¶ 39 In People v. House, 2019 IL App (1st) 110580-B, the 19-year-old defendant, who had been
found guilty of first degree murder and aggravated kidnapping, appealed the second-stage
dismissal of his postconviction petition, contending in part that his mandatory natural life
sentence violated the proportionate penalties clause. After considering the effect of Harris, this
court concluded that the defendant was entitled to a new sentencing hearing because his
mandatory natural life sentence violated the proportionate penalties clause based on his age,
family background, his actions as a mere lookout, and the lack of any prior violent convictions.
Id. ¶ 32. Specifically, the defendant’s “young age of 19 [was] relevant under the
circumstances” and his sentence “involved the convergence of the accountability statute and
the mandatory natural life sentence.” Id. ¶ 46. House also found it somewhat arbitrary that the
age of 18 designates that someone is a mature adult and discussed recent research and articles
that explain the differences between young adults and a fully mature adult. Id. ¶ 55. Moreover,
recent trends indicated that defendants under 21 years old “should receive consideration for
their age and maturity level when receiving harsh sentences.” Id. ¶ 62. House noted the
particular considerations at play in the defendant’s case: he “was barely a legal adult and still
a teenager” when he committed the offenses; he did not have a history of committing violent
crimes; he attended high school through twelfth grade but did not graduate; and he never knew
his father, his mother died when he was 18, and he was raised by his maternal grandmother.
Id. ¶ 63. The court added that the defendant’s youthfulness was relevant when considered with
his participation in the crimes, in which he acted as a lookout as opposed to being the actual
shooter. Id. ¶¶ 63-64. The court was also troubled by the sentencing court’s inability to
consider the goal of rehabilitation due to the mandatory nature of the defendant’s sentence. Id.
¶ 64.
¶ 40 House extended Miller principles to young adults under the proportionate penalties clause
based on special circumstances that are not present in defendant’s case. A key factor in House
was that the defendant “merely acted as a lookout” and was not present at the scene of the
murder. Id. ¶ 46. The defendant was serving the same sentence that applied to someone who
actually participated in the shootings, while another codefendant with similar culpability as the
defendant had been released following resentencing because that codefendant was 17 years old
during the offense. Id. Whether a defendant physically committed the offense is a significant
consideration for courts tasked with deciding whether to extend Miller principles to a young
adult under the proportionate penalties clause. See Pittman, 2018 IL App (1st) 152030, ¶ 38
(not extending Miller principles where the 18-year-old defendant was the perpetrator of the

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 violent stabbing deaths of three victims); Thomas, 2017 IL App (1st) 142557, ¶ 34 (not
extending Miller principles where the 18-year-old defendant was the shooter and his
convictions were based on his own actions instead of accountability for the acts of another);
People v. Ybarra, 2016 IL App (1st) 142407, ¶ 27 (not extending Miller principles where the
20-year-old defendant was the one who “pulled the trigger”). Here, we cannot overlook
defendant’s active participation where he invaded the victims’ house with the codefendants,
held a gun to Mr. W.’s head to prevent him from interfering while the codefendants robbed
and attacked his family and kidnapped his young daughter, and then actively participated in
the gang rape.
¶ 41 Another significant consideration in House was that the sentencing court could not consider
any mitigating factors because of the mandatory nature of the defendant’s sentence. House,
2019 IL App (1st) 110580-B, ¶ 64. Here, defendant’s sentence was discretionary, which
allowed the sentencing court to consider many different factors in determining a sentence. The
court reviewed defendant’s presentence investigation report, which included the details of his
age, family background, and education. Furthermore, defense counsel argued that defendant
was not as culpable as his codefendants, had expressed remorse, and showed potential for
rehabilitation. The sentencing court considered the mitigating evidence that defendant claims
it ignored, and this court previously found on direct appeal that his sentence was not excessive
and the trial court properly considered his rehabilitation potential. Because defendant was an
adult, an active participant in the crimes, and received a discretionary sentence, he is not
entitled to a new hearing for a more in-depth consideration of his youth under House.
¶ 42 We are bound by existing precedent. In re Clifton R., 368 Ill. App. 3d 438, 440 (2006) (the
appellate court is bound to follow decisions of the Illinois Supreme Court); People v. Jones,
357 Ill. App. 3d 684, 694 (2005) (the legislature’s function and role is to declare and define
criminal offenses and determine the nature and extent of punishment for their commission).
Defendant urges this court to apply the analysis used for a juvenile offender in Miller to him,
an 18½-year-old adult at the time of his offenses. We recognize that defendant is serving a
harsh sentence, but he has not shown prejudice and the trial court properly denied him leave to
file his successive postconviction petition.

¶ 43 III. CONCLUSION
¶ 44 For the foregoing reasons, we affirm the judgment of the circuit court denying defendant
leave to file a successive postconviction petition.

¶ 45 Affirmed.

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