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Appellate Court Date: 2021.02.01
14:58:27 -06'00'
People v. Green, 2020 IL App (5th) 170462
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MICHAEL GREEN, Defendant-Appellant.
District & No. Fifth District
No. 5-17-0462
Rule 23 order filed June 10, 2020
Motion to
publish allowed July 2, 2020
Opinion filed July 2, 2020
Rehearing denied July 31, 2020
Decision Under Appeal from the Circuit Court of Madison County, No. 04-CF-639;
Review the Hon. Jennifer L. Hightower, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Ellen J. Curry, and Elizabeth M. Crotty, of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick
Delfino, Patrick D. Daly, and Valerie A. Ozment, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE WELCH delivered the judgment of the court,
with opinion.
Justices Cates and Moore concurred in the judgment and opinion.
OPINION
¶1 The defendant, Michael Green, appeals from the Madison County circuit court’s denial of
his motion for leave to file a successive postconviction petition. For the following reasons, we
affirm.
¶2 I. BACKGROUND
¶3 A. Conviction and Direct Appeal
¶4 Following a jury trial, the defendant was convicted of the first degree murder of two-year-
old Z.H. and sentenced to 60 years’ imprisonment. The defendant appealed, arguing that his
videotaped statement should have been suppressed and that the trial court erred in refusing to
instruct the jury on involuntary manslaughter. This court rejected the defendant’s arguments
and affirmed his conviction in People v. Green, No. 5-05-0582 (2007) (unpublished order
under Illinois Supreme Court Rule 23). The order issued in that appeal included the following
summary of the evidence adduced at the defendant’s trial, in relevant part.
¶5 In February 2004, Z.H. was living with her paternal grandparents, JoAnne and Stephen
Harrison, in Alton, Illinois. Z.H. had been in their care since March 2003. Z.H. occasionally
stayed with her biological mother, Sharina Smallwood. In February 2004, the Harrisons made
arrangements to have Z.H. stay with Smallwood for a few days because Mrs. Harrison was
scheduled to have foot surgery and Mr. Harrison was concerned that he could not adequately
care for Z.H. and his wife. At the time, the Harrisons were unaware that Smallwood was
involved in a relationship with the defendant and that the defendant was staying at
Smallwood’s apartment. The Harrisons left Z.H. with Smallwood on February 29, 2004, and
they intended to take her home on March 6, 2004. Z.H. was in good health and had no bruises
on her face, head, or torso.
¶6 A tragic event occurred during the early morning hours of March 6, 2004, just hours before
Z.H. was to go back to her grandparents’ home. At about 2 a.m., Z.H. woke up crying. The
defendant was awakened by her crying and went into her room. Z.H., still crying, asked for a
drink of water. The defendant took Z.H. downstairs, passing his cousin, Jason Green, and his
cousin’s girlfriend in the stairwell. The defendant took Z.H. into the kitchen. He picked her up
and set her on the kitchen counter. The defendant told Z.H. to stop crying. He said he was
going to get her a drink. When Z.H. did not stop crying, the defendant punched her two or three
times in the stomach. Z.H. continued to cry. The defendant then hit Z.H. in the face, knocking
her off the counter and onto the concrete floor. When the defendant picked Z.H. up, she was
limp. Her head rolled to the side, and she was making snoring sounds. The defendant took Z.H.
outside to give her some air. He then carried her back upstairs, again passing Jason and Jason’s
girlfriend. Jason noted how quickly the child had fallen asleep. The defendant put Z.H. back
in her bed. He then went back to sleep. When the defendant awoke the next afternoon, Z.H.
was still in her bed. She did not wake up. She was still snoring. Around 5 p.m. that afternoon,
Smallwood attempted to wake Z.H., but the child did not respond to her mother. She was limp,
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and she continued to snore. At that point, Smallwood decided to take Z.H. to Alton Memorial
Hospital.
¶7 Dr. Alan Johnson, an emergency room physician, saw Z.H. when she arrived at the
hospital. When he examined Z.H., he noted that she was limp and that she did not respond to
stimuli. She was breathing on her own. Dr. Johnson testified that he found bruising on the
child’s forehead, back, and abdomen and swelling in the lip area. He stated that the injuries
appeared fresh and recently inflicted. Dr. Johnson found that Z.H. was posturing and that there
was retinal hemorrhaging in her right eye. He testified that posturing is an abnormal flexing of
the extremities that indicates bruising or swelling of the brain. He stated that retinal
hemorrhaging is indicative of severe trauma, commonly seen in infants with shaken baby
syndrome. Dr. Johnson ordered an immediate transfer to a trauma center.
¶8 Z.H. was airlifted to St. Louis Children’s Hospital. She was initially evaluated by Dr.
Jeffrey Leonard, a pediatric neurosurgeon. Dr. Leonard found bruising to the child’s face,
scalp, abdomen, and back and retinal hemorrhages. Dr. Leonard noted that Z.H. had a cough-
and-gag reflex, which indicated that she still had some brain function. Dr. Leonard ordered
computerized tomography (CT) scans of Z.H.’s head and abdomen. The CT scan of the head
revealed swelling in both hemispheres of the brain and subdural hemorrhaging. It also showed
a nondisplaced fracture of the parietal bone, which is located in the back of the skull. The CT
scan of the abdomen revealed a large laceration of the child’s liver. A plain X-ray showed an
acute rib fracture. Dr. Leonard stated that the child’s sleepiness and snoring were signs that
she had elevated cranial pressure, which affects the respiratory centers.
¶9 Dr. Leonard testified that he placed a small drain into the right ventricle of the brain to
drain spinal fluid and reduce the cranial pressure. He also prescribed medications to control
the pressure. The treatment was not successful. Z.H. progressively lost brain function over a
very short period of time. She was pronounced dead on March 8, 2004. Dr. Leonard testified
that the brain injuries that Z.H. sustained were not consistent with a fall from the kitchen
counter as described by the defendant. He stated that the brain injuries and retinal
hemorrhaging are indications of a violent shaking event and consistent with shaken baby
syndrome. He stated that other injuries, such as the liver laceration and the broken rib, were
indicators of an acute trauma.
¶ 10 Dr. Raj Nanduri, an assistant medical examiner, conducted the postmortem examination
on Z.H.’s body and testified about her findings. Dr. Nanduri testified that she noted a large
area of bruising and marked swelling of the child’s right forehead and the frontal area of the
scalp. There was a larger area of bleeding noted beneath the right frontal area of the scalp.
Another large area of bleeding was observed at the back of the head. Dr. Nanduri found
subdural hemorrhages on both sides of the brain. She noted bruising and swelling around the
eyes and the lips. She found bleeding around the optic nerves and retinal hemorrhages in both
eyes. Dr. Nanduri testified that the injuries to the brain and the bilateral retinal hemorrhages
were indicative of violent shaking and that the extensive bruising and swelling around the scalp
and face were indicative of a blunt-force trauma.
¶ 11 Dr. Nanduri’s examination also revealed subcutaneous hemorrhages at the lower back and
ribs on the right side of the child’s body. Dr. Nanduri testified that the margins of those wounds
were not clearly defined, indicating that the area had been impacted by a flat object or a fist.
There were fractures to the sixth and seventh ribs on the right side of the body. There was
bleeding near the fractures and bruising to the lower lobe of the right lung. Dr. Nanduri testified
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that the abdominal injuries appeared to be of very recent origin and that they were indicative
of blows to that area. Dr. Nanduri found a laceration of the liver with acute hemorrhaging and
inflammation at the site of the laceration. Additional abdominal bleeding was noted. Dr.
Nanduri testified that a blow or a kick to the abdomen would cause the injuries that she had
observed. Dr. Nanduri opined that Z.H. died from a closed head injury and blunt trauma to the
abdomen. She testified that Z.H. would be classified as a battered child and that the death was
a homicide and not an accident.
¶ 12 At the time of her death, Z.H. was 34 inches tall and weighed 41 pounds. The defendant’s
identification card indicated that he was 23 years old, that he was 69 inches tall, and that he
weighed 167 pounds.
¶ 13 On March 7, 2004, the Alton police arrested the defendant on outstanding warrants that
were unrelated to Z.H.’s death. Sometime later that day, Detective Brantley learned about the
defendant’s arrest, so he went to the Alton jail to interview the defendant about Z.H.’s injuries.
The defendant was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); prior
to the interview, he indicated that he understood his rights, and he executed a signed waiver of
his rights. During the interview, the defendant stated that he did not know how Z.H. was
injured.
¶ 14 Z.H. succumbed to her injuries on March 8, 2004. After learning of her death, Detective
Simmons returned to the jail to interview the defendant. The defendant was again advised of
his Miranda rights and executed a written waiver. During the interview, the defendant stated
that Z.H. was crying in the middle of the night, that he took her downstairs to get her a drink,
that he set her on the counter next to the refrigerator, and that he “spanked” her in the face
when she would not stop crying. The defendant stated that Z.H. fell off the counter and onto
the floor. The defendant said that Z.H. was unconscious and that she was snoring. He took her
outside to get some air, but she did not wake up. The defendant said that he then carried her
upstairs and laid her back in her bed.
¶ 15 On March 29, 2004, Detective Brantley and Detective Simmons made arrangements to
interview the defendant, who had been transferred to the Madison County jail. The detectives
wanted to interview the defendant again because the defendant’s description of the events
leading to Z.H.’s injuries did not correspond with the autopsy findings. The detectives advised
the defendant of his Miranda rights, and he again signed a written waiver. The defendant
agreed to a videotaped interview. During the course of the interview, the defendant
acknowledged that he had punched Z.H. in the stomach several times, to get her to stop crying,
before he hit her in the face.
¶ 16 B. The Defendant’s First Collateral Attack on the Judgment of Conviction
¶ 17 In May 2008, the defendant filed with the circuit clerk a pro se postconviction petition
under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). In his
first postconviction petition, the defendant argued that he was denied his constitutional right
to the effective assistance of counsel because counsel allowed a biased juror to serve on his
jury. The defendant also alleged that his trial counsel was ineffective for failing to object to
the State’s introduction of photographs from Z.H.’s autopsy. In June 2008, the circuit court
summarily dismissed the petition as frivolous and patently without merit. The court further
found that the defendant’s claims were procedurally forfeited because he failed to raise them
on direct appeal and that they were rebutted by the record. This court affirmed the judgment in
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People v. Green, No. 5-08-0374 (2009) (unpublished order under Illinois Supreme Court Rule
23).
¶ 18 C. The Defendant’s Second Collateral Attack on the Judgment of Conviction
¶ 19 In May 2017, the defendant filed a pro se motion for leave to file a successive
postconviction petition. He asserted that his sentence of 60 years’ imprisonment constituted a
de facto life sentence that violated 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) as applied to him, because he was a young adult when the murder
occurred, and the trial court should have considered his youth in rendering his sentence. In
alleging that he had cause for failing to bring the successive petition’s claims in the previous
petition, the defendant relied on two cases, People v. Harris, 2016 IL App (1st) 141744
(Harris I), and People v. House, 2015 IL App (1st) 110580, which he asserted had only recently
extended scientific evidence on the adolescent brain development to young adults. He also
alleged that prejudice resulted from failing to bring these claims earlier in that he had
rehabilitative potential and had held jobs, taken various courses, and donated his time in prison.
¶ 20 In September 2017, the defendant filed a pro se “motion to supplement pending
‘successive’ post-conviction petition instanter,” asserting a claim of actual innocence based on
newly discovered evidence. Specifically, the defendant relied on “advances in medical science
regarding ‘shaken baby syndrome/abusive head trauma’ ” since his trial. The defendant also
alleged a claim of ineffective assistance of counsel relating to such evidence.
¶ 21 On November 2, 2017, the circuit court denied the defendant leave to file a successive
postconviction petition, finding that he failed to satisfy the prejudice element of the cause-and-
prejudice test and that he failed to present a cognizable claim of actual innocence. The
defendant appeals.
¶ 22 II. ANALYSIS
¶ 23 The Act provides a method for criminal defendants to assert that “in the proceedings which
resulted in his or her conviction there was a substantial denial of his or her rights under the
Constitution of the United States or of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1)
(West 2016). “A proceeding under the Act is a collateral attack on the judgment of conviction.”
People v. Wrice, 2012 IL 111860, ¶ 47. Although our supreme court has made clear that the
Act contemplates only one postconviction proceeding, the court has provided in its case law
two bases upon which the bar against successive proceedings will be relaxed: (1) a showing of
cause and prejudice or (2) a claim of actual innocence. People v. Edwards, 2012 IL 111711,
¶¶ 22-23.
¶ 24 Here, the defendant’s first claim alleges cause and prejudice, and his second claim alleges
actual innocence. We will discuss each of the defendant’s claims below.
¶ 25 A. Cause and Prejudice
¶ 26 The defendant initially asserts that the circuit court erred in denying him leave to file a
successive postconviction petition, where he was 22 years old at the time of his offense and
the trial court failed to consider his youth when imposing his 60-year sentence. Thus, the
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defendant claims his sentence violated the eighth amendment to the United States Constitution.
The State responds that the defendant’s sentence was constitutional.
¶ 27 When a defendant seeks to file a successive postconviction petition, he must first obtain
leave of court. 725 ILCS 5/122-1(f) (West 2016). Leave of court may be granted only if
defendant demonstrates “cause” for his failure to bring the claim in his initial postconviction
proceeding and “prejudice” resulting therefrom. See id. (codifying the cause-and-prejudice test
articulated in People v. Pitsonbarger, 205 Ill. 2d 444, 458-60 (2002)); Wrice, 2012 IL 111860,
¶ 48. A defendant shows cause by identifying an objective factor that impeded his ability to
raise a specific claim in his initial postconviction petition. 725 ILCS 5/122-1(f) (West 2016);
Wrice, 2012 IL 111860, ¶ 48. A defendant shows prejudice by demonstrating that the claim
not raised in his initial postconviction petition so infected his trial that the resulting conviction
or sentence violated due process. Wrice, 2012 IL 111860, ¶ 48. It is defendant’s burden to
establish a prima facie showing of cause and prejudice in order to be granted leave before
further proceedings on his claims can follow (People v. Bailey, 2017 IL 121450, ¶ 24; People
v. Smith, 2014 IL 115946, ¶ 30), and both elements must be satisfied for defendant to prevail
(People v. Guerrero, 2012 IL 112020, ¶ 15). For the reasons that follow, the defendant cannot
establish prejudice since his claims are not legally cognizable.
¶ 28 In Miller v. Alabama, 567 U.S. 460, 479 (2012), the United States Supreme Court held that
the eighth amendment to the United States Constitution “forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.” In reaching this
conclusion, the Court found that a mandatory sentence of “life without parole for a juvenile
precludes consideration” of the juvenile’s age and its “hallmark features,” including the
juvenile’s family and surrounding home environment, the extent of the juvenile’s participation
in the offense, the effects of familial or peer pressure, the “inability to deal with police officers
or prosecutors,” the incapacity to assist the juvenile’s own attorneys, and the possibility of
rehabilitation. Id. at 477-78. The Miller Court announced that “a judge or jury must have the
opportunity to consider mitigating circumstances before imposing the harshest possible penalty
for juveniles.” Id. at 489.
¶ 29 More recently, the Illinois Supreme Court has held that Miller applies to discretionary life
sentences without parole for juvenile defendants. People v. Holman, 2017 IL 120655, ¶ 40.
However, our supreme court has declined to extend Miller to offenders who are 18 years of
age or older, finding that the Miller Court “confirmed that the age of 18 is the legal line
separating adults from juveniles” and that the protections of Miller only apply to juvenile
offenders. People v. Harris (Harris II), 2018 IL 121932, ¶¶ 58-61. Whether a sentence is
constitutional is a question of law, which we review de novo. People v. Taylor, 2015 IL
117267, ¶ 11.
¶ 30 The defendant in this case received a 60-year sentence for first degree murder, which was
within the applicable discretionary sentencing range. The parties do not dispute that the
defendant was 22 years old at the time of the offense and was therefore an adult. Accordingly,
Miller does not apply to the defendant’s sentence, and his sentence does not violate the eighth
amendment to the United States Constitution. See Harris II, 2018 IL 121932, ¶¶ 58-61.
¶ 31 The defendant additionally argues that his sentence violated the proportionate penalties
clause of the Illinois Constitution. The State responds that this clause is also inapplicable to
the defendant’s sentence because he was an adult offender and his life sentence was
discretionary and not mandatory.
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¶ 32 The proportionate penalties clause of the Illinois Constitution 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.
¶ 33 In asserting that his natural life sentence violated the proportionate penalties clause, the
defendant primarily relies on People v. House, 2019 IL App (1st) 110580-B (in which a 19-
year-old defendant received a mandatory life sentence). However, we find that House does not
apply. In the original opinion in House and on remand from the supreme court, the First
District’s ruling was largely premised on the fact that defendant was sentenced on a conviction
that was based on a theory of accountability. House, 2015 IL App (1st) 110580; House, 2019
IL App (1st) 110580-B, ¶ 32 (“As discussed throughout our previous analysis, defendant’s
conviction under the theory of accountability weighed heavily in our conclusion that his
mandatory natural life sentence shocked the moral conscience of the community.”). The court
emphasized the fact that the young defendant was not present at the scene of the murder but
received “the same mandatory sentence of natural life as *** [the] codefendant who
participated in the shooting of the victims,” while another codefendant was released from the
penitentiary during resentencing because he was 17 years old when the offense occurred.
House, 2019 IL App (1st) 110580-B, ¶ 46.
¶ 34 The House court also noted that a mandatory sentence does not afford a trial court “any
discretion if an offender is found guilty of triggering offenses” and the “lack of discretion
afforded the trial court for the imposition of a mandatory life sentence is especially relevant
when the defendant is a young adult, over 18, but still not considered a fully mature adult.” Id.
¶ 60. The court therefore found that, as applied to defendant, the mandatory natural life
sentencing statute at issue violated the proportionate penalties clause. Id. ¶¶ 65-66. The matter
was remanded for a new sentencing hearing so that the trial court could have “the ability to
consider the relevant mitigating factors prior to imposing a sentence of such magnitude.” Id.
¶ 65.
¶ 35 Here, unlike in House, the defendant was not convicted on a theory of accountability, and
his sentence was not mandatory. Rather, the defendant was convicted for directly participating
in the murder of Z.H., and he received a discretionary 60-year sentence. Therefore, the
reasoning of House does not apply here.
¶ 36 In his reply brief, the defendant asserts that the distinction between a mandatory and
discretionary sentence is not relevant to our analysis. However, the defendant supports this
assertion with a case that involved a juvenile offender bringing an eighth amendment Miller
challenge, not a proportionate penalties claim. See Holman, 2017 IL 120655 (in which
defendant was 17 years old at the time of the offense and brought an eighth amendment claim
pursuant to Miller on appeal). This case did not address whether an adult offender could
challenge a discretionary life sentence under the proportionate penalties clause. See id.
¶ 37 The defendant sets forth no legal authority supporting the assertion that a discretionary 60-
year sentence violates the proportionate penalties clause, when imposed on an adult who was
convicted for directly participating in a murder. To the contrary of this assertion, Illinois
appellate court decisions have recently found that even a mandatory life sentence imposed on
a young adult offender did not violate the proportionate penalties clause, where defendant
directly participated in the murders for which he was convicted. See People v. White, 2020 IL
App (5th) 170345, ¶¶ 27-28 (distinguishing itself from House on the grounds that the 20-year-
old defendant was not convicted on a theory of accountability); People v. Pittman, 2018 IL
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App (1st) 152030, ¶¶ 37-40 (distinguishing itself from House on the grounds that the 18-year-
old defendant was not convicted on a theory of accountability). Here, the 22-year-old defendant
was convicted of directly participating in the murder for which he was convicted, as the
evidence at trial showed that the defendant violently punched a 2-year-old child in the stomach
multiple times, hit her in the face, and shook her, causing her death.
¶ 38 Moreover, we note parenthetically that the record reveals the trial court considered multiple
circumstances regarding the defendant’s youth. Specifically, the court was presented with
evidence regarding the defendant’s family history, including his mother’s drug abuse and
incarceration, his own history with drugs, and his criminal record as a juvenile and as an adult.
Further, defense counsel argued that the defendant’s age and rehabilitative potential were
reasons for the court to sentence the defendant to the minimum sentence of 20 years’
imprisonment.
¶ 39 The defendant further asserts that Harris II, 2018 IL 121932, supports a finding that a
young adult may challenge a discretionary life sentence based on the proportionate penalties
clause. However, the Illinois Supreme Court in Harris II never reached the merits of this issue.
In Harris II, defendant filed a direct appeal challenging his sentence based on the proportionate
penalties clause and eighth amendment. Id. ¶ 17. The appellate court found that defendant’s
mandatory de facto life sentence violated the proportionate penalties clause. Id. ¶ 18. The State
appealed to the supreme court, and defendant asserted that his mandatory de facto life sentence
violated the proportionate penalties clause of the Illinois Constitution. Id. ¶¶ 20, 36.
¶ 40 The supreme court in Harris II observed that defendant’s proportionate penalties claim was
an “as-applied challenge,” which required “a showing that the statute is unconstitutional as it
applies to the specific facts and circumstances of the challenging party.” Id. ¶¶ 37-38.
However, defendant failed to raise his as-applied constitutional challenge in the trial court, “an
evidentiary hearing was not held on his constitutional claim, and the trial court did not make
any findings of fact on defendant’s specific circumstances.” Id. ¶ 40. The court stated that “a
reviewing court is not capable of making an as-applied finding of unconstitutionality in the
factual vacuum created by the absence of an evidentiary hearing and findings of fact by the
trial court.” (Internal quotation marks omitted.) Id. ¶ 41. The court therefore concluded that
defendant’s claim on direct appeal was premature and “more appropriately raised in another
proceeding” that allows presentation of evidence not contained in the record, such as a
postconviction proceeding. Id. ¶¶ 46, 48.
¶ 41 We find Harris II does not support the defendant’s position on collateral appeal—while
the supreme court may have held that Harris’s as-applied proportionate penalties claim was
more appropriate for a proceeding other than a direct appeal, the court made no finding as to
how successful the claim would be in postconviction proceedings. Id. ¶ 48. The court only held
that, where a defendant did not raise before the trial court an as-applied challenge to his
sentence based on the proportionate penalties clause, a reviewing court could not have made a
finding on the merits of the claim, since the record lacked any information regarding
defendant’s youth, and the challenge was therefore premature for a direct appeal. Id. ¶¶ 46, 48.
¶ 42 “[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. In his motion to file a successive postconviction
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petition, the defendant raised no facts or circumstances regarding his youth that were not
already included in the record, presented at his sentencing hearing, and considered by the trial
court. Further, we find that the legal authority cited by the defendant simply does not support
his conclusion that a discretionary 60-year sentence imposed on a 22-year-old defendant, based
on direct participation in the crime of first degree murder and imposed after the presentation
of a presentence investigation report (PSI) and argument regarding his youth and rehabilitative
potential, could be found to violate the proportionate penalties clause. The defendant’s claim
fails as a matter of law. See People v. Handy, 2019 IL App (1st) 170213, ¶¶ 41-42 (finding
that the circuit court properly denied defendant leave to file a successive postconviction
petition where defendant’s life sentence did not violate the proportionate penalties clause
because “defendant was an adult, an active participant in the crimes, and received a
discretionary sentence”).
¶ 43 In sum, we find that the defendant’s 60-year sentence does not violate the proportionate
penalties clause where (1) the defendant was not a juvenile at the time of the offense, (2) he
received a discretionary 60-year sentence, (3) his conviction was based on his direct
participation in the crime of first degree murder, and not based on a theory of accountability,
and (4) the trial court imposed the defendant’s sentence after considering information from the
PSI and argument that concerned his youth and rehabilitative potential. Because the
defendant’s sentence violated neither the eighth amendment to the United States Constitution
nor the proportionate penalties clause of the Illinois Constitution, we find the circuit court did
not err in denying him leave to file a successive postconviction petition.
¶ 44 B. Actual Innocence
¶ 45 The defendant also claims that he is entitled to further postconviction proceedings on his
claim of actual innocence based on the fact that “his conviction rested on testimony about
Shaken Baby Syndrome that could be deemed unreliable by a jury in light of the new scientific
and legal developments cited in his petition.” The State responds that the defendant’s
successive petition and supporting documentation fail to set forth a colorable claim of actual
innocence. For the reasons that follow, we agree with the State.
¶ 46 In addition to the cause-and-prejudice test set forth in the statute, there is a second basis,
established by the courts, on which a defendant can seek leave to file a successive
postconviction petition: where there has been a fundamental miscarriage of justice, which can
only be established where defendant makes a showing of actual innocence. Edwards, 2012 IL
111711, ¶ 23. A showing of actual innocence can only be made by the presentation of newly
discovered evidence of such conclusive character that it would probably change the result on
retrial. Id. ¶ 32. A postconviction petitioner must submit with his motion for leave to file a
successive postconviction petition sufficient documentation to allow the circuit court to
determine whether such a showing has been made. Id. ¶ 24. Thus, leave to file a successive
postconviction petition on the basis of a claim of actual innocence should be granted only when
the supporting documentation “raises the probability that it is more likely than not that no
reasonable juror would have convicted [defendant] in the light of the new evidence.” (Internal
quotation marks omitted.) Id.
¶ 47 “Substantively, the evidence in support of the claim must be newly discovered; material
and not merely cumulative; and ‘of such conclusive character that it would probably change
the result on retrial.’ ” People v. Ortiz, 235 Ill. 2d 319, 333 (2009) (quoting People v. Morgan,
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212 Ill. 2d 148, 154 (2004)). Whether newly discovered evidence is of such conclusive
character that it would probably change the result on retrial is the most important element of
any actual-innocence claim. People v. Washington, 171 Ill. 2d 475, 489 (1996). When
considering whether newly discovered evidence is of such conclusive character that it would
probably change the result on retrial, “conclusive means the evidence, when considered along
with the trial evidence, would probably lead to a different result.” People v. Coleman, 2013 IL
113307, ¶ 96. Additionally, “[e]vidence of actual innocence must support total vindication or
exoneration, not merely present a reasonable doubt.” People v. Adams, 2013 IL App (1st)
111081, ¶ 36. Here, we cannot conclude that the evidence relied on by the defendant is of such
conclusive character that it would probably change the result on retrial.
¶ 48 The medical evidence presented at the defendant’s trial proved that Z.H. suffered a fracture
to her skull, swelling on the brain, retinal hemorrhaging, and swelling and bruising of the head.
She also suffered a broken rib, a laceration to the spleen, and internal bleeding consistent with
blows or kicks to the abdomen. The medical examiner testified that Z.H. died from a closed
head injury and blunt trauma to the abdomen. This conclusion was consistent with the
defendant’s own admission that he punched Z.H. in the stomach two or three times and hit her
in the head, knocking her off the counter and onto the concrete floor. Z.H. was limp and
unresponsive immediately after this fall, and she never recovered.
¶ 49 Based on the foregoing, even if we were to assume arguendo that the defendant’s
successive petition and supporting documentation satisfy the other requirements of an actual-
innocence claim, we find that it is not of such conclusive character that it would probably
change the result on retrial. The evidence proffered by the defendant falls far short of
establishing his “total vindication or exoneration” (id.), and “when considered along with the
trial evidence,” we cannot conclude that the new research on shaken baby syndrome “would
probably lead to a different result” (Coleman, 2013 IL 113307, ¶ 96). “[A]ctual innocence
requires that a defendant be free of liability not only for the crime of conviction, but also of
any related offenses.” (Internal quotation marks omitted.) People v. Wingate, 2015 IL App
(5th) 130189, ¶ 32. Thus, even if the defendant were able to establish that the alleged scientific
and legal developments constitute newly discovered evidence, his claim of actual innocence
would still fail as a matter of law. See Edwards, 2012 IL 111711, ¶¶ 40-41 (similarly finding).
¶ 50 Finally, the defendant contends that his trial counsel was ineffective for failing to
investigate and defend him using what research on shaken baby syndrome was available at the
time of trial and that his direct-appeal counsel was ineffective for failing to raise the issue of
trial counsel’s ineffectiveness on direct appeal.
¶ 51 Claims of ineffective assistance of counsel are evaluated under the two-prong test set forth
in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by the supreme court in
People v. Albanese, 104 Ill. 2d 504, 525-26 (1984). To prevail under Strickland, a defendant
must demonstrate (1) that counsel’s performance was objectively unreasonable under
prevailing professional norms and (2) that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. People
v. Harris, 225 Ill. 2d 1, 20 (2007). A reasonable probability that the result of the proceeding
would have been different is a probability sufficient to undermine confidence in the outcome
of the proceeding. People v. Colon, 225 Ill. 2d 125, 135 (2007). Because a defendant’s
ineffective-assistance-of-counsel claim will fail if either prong of the Strickland test is not met,
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a reviewing court need not determine whether counsel’s performance was deficient before
determining whether he was prejudiced. People v. Perry, 224 Ill. 2d 312, 342 (2007).
¶ 52 We initially note that the defendant’s ineffective-assistance-of-counsel claims relate to
shaken baby syndrome research that existed at the time of the defendant’s trial and could have
been presented in his initial postconviction proceedings. There was nothing preventing the
defendant from raising them in the first proceedings, in which he asserted other claims of
ineffective assistance of counsel. As such, the defendant has failed to demonstrate cause for
his failure to bring these claims in the initial postconviction proceedings. See 725 ILCS 5/122-
1(f) (West 2016); Wrice, 2012 IL 111860, ¶ 48.
¶ 53 Furthermore, there can be no prejudice with respect to these claims. As previously stated,
the medical examiner testified at the defendant’s trial that Z.H. died from a closed head injury
and blunt trauma to the abdomen. This conclusion was supported by (1) the medical evidence
showing that Z.H. suffered a fracture to her skull, swelling on the brain, retinal hemorrhaging,
swelling and bruising of the head, a broken rib, a laceration to the spleen, and internal bleeding
consistent with blows or kicks to the abdomen and (2) the defendant’s own admission that he
punched Z.H. in the stomach two or three times and hit her in the head, knocking her off the
counter and onto the concrete floor. In light of the overwhelming evidence of the defendant’s
guilt, independent of the shaken baby syndrome diagnosis, we find that there is no reasonable
probability that the result of the proceeding would have been different if trial counsel had
presented evidence challenging it. Accordingly, trial counsel will not be found ineffective for
failing to present such evidence, and direct-appeal counsel will not be found ineffective for
failing to raise the issue on direct appeal.
¶ 54 III. CONCLUSION
¶ 55 We affirm the denial of the defendant’s motion for leave to file a successive postconviction
petition.
¶ 56 Affirmed.
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