People v. Johnson

2021 IL App (3d) 180357

Opinion filed February 26, 2021
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois.
Plaintiff-Appellee, )
)
v. ) Appeal No. 3-18-0357
) Circuit No. 94-CF-382
PHILIP JOHNSON, )
) Honorable Michael D. Risinger,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justice Lytton concurred in the judgment and opinion.
Justice Schmidt dissented, with opinion.
____________________________________________________________________________

OPINION

¶1 The defendant, Philip Johnson, appeals the second-stage dismissal of his successive

postconviction petition. The defendant argues that his constitutional rights were violated where he

received a de facto life sentence as a juvenile offender.

¶2 I. BACKGROUND

¶3 The defendant and his older sister, Angela S. Oakes, were charged by information with two

counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 1994)) for killing their father, James T.

Johnson, and their father’s girlfriend, Frances M. Buck. The defendant was 16 years old at the
 time; Oakes was 20 years old. The defendant entered into a negotiated plea agreement, pleading

guilty to one count of first degree murder for killing Buck and one count of the lesser offense of

second degree murder (id. § 9-2(a)(2)) for killing his father. In exchange for the plea, the State

agreed to recommend a total sentence of 110 years’ imprisonment, which included consecutive

terms of 90 years for first degree murder and 20 years for second degree murder.

¶4 At the plea hearing, the State advised the court that, if the defendant proceeded to trial and

was convicted on the original charges, the defendant would be sentenced to a mandatory sentence

of natural life imprisonment without parole. However, the State then explained that under the

charges he was pleading guilty to, the normal sentencing range for first degree murder would be

20 to 60 years’ imprisonment, but the term would be extended to 100 years due to the brutal and

heinous nature of the killing. For second degree murder, the State explained that defendant faced

a range of 4 to 20 years’ imprisonment.

¶5 The court admonished the defendant, asked the defendant some questions, and read the

charges and the possible penalties to the defendant. The State then presented the factual basis for

the plea, stating that on July 20, 1994, the dead bodies of James and Buck were discovered in their

bed by James’s ex-wife. An autopsy revealed the cause of death for both victims to be gunshot

wounds to their heads. During a police interview, the defendant admitted to killing his father and

Buck, stating that, at the time of the murder, the defendant and Oakes were overcome by their

father’s physical and emotional abuse. 1 The defendant went into his father’s room while he slept

and shot his father in the head with a .22 single shot rifle. Buck awoke from the sound of the shot,

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Oakes received an aggregate 60-year sentence for the first degree murder of Buck and second
degree murder of her father.
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 and the defendant shot Buck in the head because she saw him. He then left the residence and

disposed of the gun.

¶6 The court found the defendant’s guilty plea knowingly and voluntarily made and found

that a factual basis existed for the plea. The court asked if, in light of the plea agreement, the

defense waived evidence in mitigation and the preparation of a presentence investigation report.

Defense counsel stated that it did. The court asked the State if it had information regarding the

defendant’s criminal history. The State responded that it was not aware that the defendant had any

prior criminal history. The court then accepted the plea, sentencing the defendant, per the terms of

the plea, to 90 years’ imprisonment for the first degree murder of Buck and a consecutive sentence

of 20 years’ imprisonment for the second degree murder of his father. The court’s written order

found the defendant eligible for the extended-term sentence for the murder of Buck due to the

exceptionally brutal and heinous nature of the killing. The court also noted that the defendant was

eligible for good conduct credit, but the Department of Corrections alone would determine whether

he received that credit.

¶7 The defendant filed his first postconviction petition in 1999. The trial court denied the

petition, and this court granted defense counsel’s motion for leave to withdraw pursuant to

Pennsylvania v. Finley, 481 U.S. 551 (1987). People v. Johnson, No. 3-06-0868 (2008)

(unpublished order under Illinois Supreme Court Rule 23).

¶8 In 2017, the defendant filed an “expedited” motion for leave to file a successive

postconviction petition, which is the subject of this appeal. The court granted the defendant leave

to file the petition and appointed counsel. Counsel amended the petition to allege the defendant’s

constitutional rights were violated under Miller v. Alabama, 567 U.S. 460 (2012), where he was

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 sentenced to a de facto life sentence without consideration of his youth and attendant

circumstances.

¶9 Attached to the petition were several exhibits, including a psychological evaluation and

report made in preparation for trial, school records, and statements from the defendant’s family.

The evaluation and accompanying exhibits showed that the defendant suffered from learning

disabilities and had a verbal IQ of 77, which placed him in the borderline range of intellectual

functioning. The defendant repeated two grades twice in school. The psychological report

summarized statements given by multiple witnesses regarding the long-term physical and

emotional abuse the defendant and Oakes received at the hand of their father. James was described

as a “mean drunk” who shot several family pets in front of the defendant and Oakes, hit the

defendant daily with his hands and other objects, such as a screwdriver, and was very controlling.

James’s nickname for the defendant was “ ‘Stumb,’ stuck between stupid and dumb.” James once

broke the defendant’s arm. He also limited the defendant’s social interactions. The defendant had

sought help from authorities, including teachers and the police, to no avail. The psychologist noted

that the defendant “presented as intensely angry about how his father had treated him yet tearful

and deeply remorseful about his actions.” The defendant told the psychologist that he did not think

about the consequences of the shooting at the time but only thought about living a life without the

physical and emotional abuse. The defendant became tearful when speaking with the psychologist,

stating that he would take it back if he could. Based on the results of several psychological tests,

the psychologist opined that the defendant had a strength in visual perception and visual

association, which is “seen in individuals growing up in a hostile social environment.” Moreover,

the psychologist stated that the test scores suggested that the defendant acted under extreme duress

and followed a pattern “common in individuals who have been subjected to physical abuse, to

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 demeaning evaluations, and to excessive familial control preventing normal development,

socialization, and achievement.” The psychologist found that the defendant suffered from attention

deficit hyperactivity disorder and possessed a limited capacity to think flexibly, weigh alternatives,

and anticipate consequences. The psychologist opined that the defendant’s failed attempts to stop

his father’s abuse by seeking help, coupled with his inability to concentrate and control himself,

likely caused the defendant to believe killing his father was his only recourse.

¶ 10 The State filed a motion to dismiss the petition, arguing that Miller did not apply because

the defendant did not receive a mandatory life sentence or a de facto life sentence but a

discretionary sentence that the defendant agreed to and the court found appropriate. The court

granted the motion and dismissed the petition, finding that the constitutional issues the defendant

raised could not be established since he entered into a fully negotiated guilty plea.

¶ 11 II. ANALYSIS

¶ 12 On appeal, the defendant contends the trial court erred when it dismissed his successive

postconviction petition at the second stage of the proceedings. A postconviction proceeding is a

collateral proceeding that allows review of constitutional issues that were not, and could not have

been, adjudicated on direct appeal. People v. Ortiz, 235 Ill. 2d 319, 328 (2009). The Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) generally contemplates the

filing of only one postconviction petition. Ortiz, 235 Ill. 2d at 328. However, a defendant may seek

leave of court to file a successive postconviction petition. 725 ILCS 5/122-1(f) (West 2016).

Where, as here, a defendant is granted leave to file a successive postconviction petition, the petition

is effectively advanced to the second stage of postconviction proceedings. See People v. Wrice,

2012 IL 111860, ¶ 90; People v. Almodovar, 2013 IL App (1st) 101476, ¶ 81. At the second stage,

the trial court must determine “whether the petition and any accompanying documentation make

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 a substantial showing of a constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 246 (2001).

On appeal, our review is de novo. People v. Lee, 2016 IL App (1st) 152425, ¶ 50.

¶ 13 The defendant’s petition alleged that the de facto life sentence he received as part of his

fully negotiated guilty plea is unconstitutional under the eighth amendment of the United States

Constitution (U.S. Const., amend. VIII). Specifically, the defendant claims that the trial court

failed to consider his youth and its attendant circumstances prior to accepting his plea and imposing

the agreed-upon sentence, based on the United States Supreme Court’s decision in Miller, 567

U.S. 460, and its progeny.

¶ 14 The eighth amendment of the United States Constitution prohibits cruel and unusual

punishment. U.S. Const., amend. VIII. The foundational cases of Roper v. Simmons, 543 U.S. 551,

569-73 (2005) (prohibiting capital sentences for juveniles who commit murder), Graham v.

Florida, 560 U.S. 48, 82 (2010) (prohibiting mandatory life sentences for juveniles who commit

nonhomicide offenses), Miller, 567 U.S. at 489 (prohibiting mandatory life sentences for juveniles

who commit murder), and Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 734 (2016)

(finding that Miller applies retroactively), collectively hold that juveniles are constitutionally

different from adults for purposes of sentencing and establish that additional sentencing

protections are thus necessary.

¶ 15 The Illinois Supreme Court has since considered the effects of these cases. In People v.

Holman, 2017 IL 120655, ¶¶ 37, 40, the court held that both mandatory and discretionary life

sentences for juveniles violate the eighth amendment unless the sentencing court considers the

defendant’s youth and its attendant characteristics as mitigation. The rare juvenile offender may

still be sentenced to life imprisonment, “but only if the trial court determines that the defendant’s

conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption

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 beyond the possibility of rehabilitation.” Id. ¶ 46. The court may make this determination only

after considering the Miller factors, which include, but are not limited to:

“(1) the juvenile defendant’s chronological age at the time of the

offense and any evidence of his particular immaturity, impetuosity,

and failure to appreciate risks and consequences; (2) the juvenile

defendant’s family and home environment; (3) the juvenile

defendant’s degree of participation in the homicide and any

evidence of familial or peer pressures that may have affected him;

(4) the juvenile defendant’s incompetence, including his inability to

deal with police officers or prosecutors and his incapacity to assist

his own attorneys; and (5) the juvenile defendant’s prospects for

rehabilitation.” Id.

See also id. ¶ 44. Our legislature has since codified the Miller factors into a set of nine factors the

court must consider when sentencing a juvenile defendant. See 730 ILCS 5/5-4.5-105 (West 2018).

These prior holdings also extend to de facto life sentences, which the court in People v. Buffer,

2019 IL 122327, ¶¶ 40-41, defined as a sentence greater than 40 years.

¶ 16 Before turning to the merits of the defendant’s petition, we must address the State’s

argument that the defendant waived this issue by pleading guilty. “[W]aiver is the voluntary

relinquishment of a known right.” People v. Phipps, 238 Ill. 2d 54, 62 (2010). When determining

whether a legal claim has been waived, a reviewing court must examine the particular facts and

circumstances of the case and construe waiver principles liberally in favor of the defendant. Id.

¶ 17 The State bases its argument on the rule of law espoused in People v. Jackson, 199 Ill. 2d

286 (2002), and relied on in People v. Townsell, 209 Ill. 2d 543, 545 (2004), that a guilty plea

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 waives all constitutional claims. In both cases, the question before our supreme court was whether

a defendant waived the right to raise a claim pursuant to Apprendi v. New Jersey, 530 U.S. 466

(2000), by pleading guilty. Jackson, 199 Ill. 2d at 296; Townsell, 209 Ill. 2d at 545. The Jackson

court stated that, under Apprendi, “[e]very fact necessary to establish the range within which a

defendant may be sentenced is an element of the crime and thus falls within the constitutional

rights of a jury trial and proof beyond a reasonable doubt.” Jackson, 199 Ill. 2d at 296. The court

stated that those were the exact rights that a defendant waived by pleading guilty and, therefore,

they could not be heard on appeal from a guilty plea. Id. In doing so, the court stated, “Apprendi

did not deal with novel constitutional rights. Rather, the Court was concerned with the applicability

and reach of the well-established constitutional rights to a jury trial and proof beyond a reasonable

doubt, rights which a guilty plea is specifically designed to waive.” Id. at 302.

¶ 18 Jackson and Townsell are not applicable here. Apprendi concerns the State’s requirement

to prove an element of the crime, which a defendant explicitly waives when pleading guilty.

However, unlike Apprendi, Miller did set forth a “novel constitutional right[ ].” Id. According to

the United States Supreme Court in Montgomery, 577 U.S. at ___, 136 S. Ct. at 732-36, Miller

announced a new substantive rule of constitutional law. Montgomery stated, “Miller *** did more

than require a sentencer to consider a juvenile offender’s youth before imposing life without

parole; it established that the penological justifications for life without parole collapse in light of

‘the distinctive attributes of youth.’ ” Id. at ___, 136 S. Ct. at 734 (quoting Miller, 567 U.S. at

472). The rule announced in Miller carries a significant risk that the vast majority of juvenile

offenders face a punishment that the law cannot impose, which is why it applies retroactively. Id.

at ___, 136 S. Ct. at 734.

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¶ 19 The Supreme Court of Virginia in Jones v. Commonwealth, 795 S.E.2d 705, 714-15 (Va.

2017), held that a juvenile who entered into a negotiated plea agreement waived the right to raise

a Miller challenge. However, our supreme court in Holman, 2017 IL 120655, ¶ 40, looked at this

case with disfavor, stating that it gave “insufficient regard to the Supreme Court’s far-reaching

commentary about the diminished culpability of juvenile defendants, which is neither crime- nor

sentence-specific.” As the Miller Court stated, “it is the odd legal rule that does not have some

form of exception for children.” (Emphasis in original.) Miller, 567 U.S. at 481. The three-justice

dissent in Jones also disagreed with the idea that a plea agreement can act as a waiver to all

constitutional challenges, noting, as an example, that the Supreme Court has held that the two-part

Strickland v. Washington, 466 U.S. 668 (1984), test applies to challenges based on the right to

effective assistance of counsel. Jones, 795 S.E.2d at 726 (Powell, J., dissenting, joined by

Goodwyn and Mims, JJ.).

¶ 20 Here, the defendant pled guilty before Miller was decided. As stated above, Miller set forth

a novel constitutional right. The defendant could not have voluntarily relinquished a right that was

not available to him at the time that he plead guilty. Stated another way, we find that the defendant

could not have waived the right to raise this issue because he pled guilty without the benefit of

Miller and its progeny.

¶ 21 Because we find that the defendant did not waive this issue, we next consider the merits of

the defendant’s Miller claim. To prevail on a Miller claim, a defendant who committed the offense

while a juvenile must show (1) he or she was subject to a life sentence, whether mandatory or

discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its

attendant characteristics, as set forth in Holman. Buffer, 2019 IL 122327, ¶ 27.

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¶ 22 Here, the defendant undoubtedly meets both requirements. He was sentenced to a de facto

life sentence as his 110-year sentence was greater than 40 years. See id. ¶¶ 40-41. Moreover, the

record does not show that the court considered the defendant’s youth and its attendant

characteristics when sentencing the defendant. Therefore, the defendant’s sentence violates the

eighth amendment, and we vacate his sentence and remand for a new sentencing hearing. See id.

¶¶ 46-47. Our supreme court’s recent decision in People v. Lusby, 2020 IL 124046, does not

change our analysis. On remand, the defendant “is entitled *** to be sentenced under the scheme

prescribed by section 5-4.5-105 of the Unified Code of Corrections.” Buffer, 2019 IL 122327, ¶ 47;

730 ILCS 5/5-4.5-105 (West 2018). Since “any inquiry into the Miller factors is backwards-

looking” (Holman, 2017 IL 120655, ¶ 47), we note that the psychological report and other exhibits

prepared before the defendant’s plea and attached to his petition will be helpful when considering

the necessary factors.

¶ 23 The dissent states that the proper remedy is not a new sentencing hearing but remand for

the defendant to withdraw his guilty plea. We disagree. Not only did neither party raise this issue,

the State specifically conceded that, should we accept the defendant’s argument, “the proper

remedy is to remand this matter for a new sentencing hearing.” We see no reason not to accept the

State’s concession.

¶ 24 In coming to this conclusion, we agree with the dissent’s contention that the United States

and Illinois Supreme Courts have yet to consider the question of whether Miller applies to fully

negotiated plea agreements. However, we find support for our decision to apply Miller here from

the caselaw itself. It has been consistently held that juveniles are more vulnerable to negative

influences and pressure from family and peers, impetuous, and unable to appreciate the risks and

consequences of their actions. Miller, 567 U.S. at 471; Holman, 2017 IL 120655, ¶ 35. Life

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 sentences, “ ‘ignore[ ] that [a defendant] might have been charged and convicted of a lesser offense

if not for incompetencies associated with youth—for example, his inability to deal with police

officers or prosecutors (including on a plea agreement) or his incapacity to assist his own

attorneys.’ ” Buffer, 2019 IL 122327, ¶ 19 (quoting Miller, 567 U.S. at 477-78). These

characteristics are illustrated, here, with the defendant’s willingness to agree to a sentence of 110

years. There is no difference between 110 years and the natural life sentence that the defendant

faced, but this may not have been fully appreciated or comprehended by a 16-year-old. Moreover,

the sentence shows the defendant’s inability to deal with prosecutors and vulnerability to outside

pressure and influence.

¶ 25 III. CONCLUSION

¶ 26 The judgment of the circuit court of Tazewell County is reversed, and the cause is

remanded for resentencing.

¶ 27 Reversed and remanded with directions.

¶ 28 JUSTICE SCHMIDT, dissenting:

¶ 29 The majority finds defendant’s de facto life sentence unconstitutional under the eighth

amendment. Defendant’s conviction and sentence arose from a fully negotiated plea. This has

significant consequences.

¶ 30 Neither the United States Supreme Court nor the Illinois Supreme Court has extended the

holding in Miller to sentences that result from a fully negotiated plea. To the contrary, under

Illinois law, defendant waived any claim of a constitutional error by virtue of his fully negotiated

plea. Defendant here entered into a plea agreement in which he stipulated to a de facto life

sentence. In so doing, defendant relinquished any rights to challenge nonjurisdictional errors or

irregularities, including constitutional errors. People v. Townsell, 209 Ill. 2d 543, 545 (2004)

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 (citing People v. Peeples, 155 Ill. 2d 422, 491 (1993)). A guilty plea “represents a break in the

chain of events that has preceded it,” and a defendant who has pled guilty may not claim his

constitutional rights were violated before he entered his plea. People v. Wendt, 283 Ill. App. 3d

947, 956-57 (1996) (citing Tollet v. Henderson, 411 U.S. 258, 267 (1973)). Not only did defendant

waive his right to challenge his sentence, he also affirmatively waived his right to present evidence

in mitigation and the preparation of a presentence investigation report. As a result, defendant

waived any claim that the trial court should have considered his youth and its attendant

circumstances in imposing the agreed upon sentence.

¶ 31 The majority reaches a different conclusion on the basis that defendant’s argument involves

a novel constitutional right. According to the majority, a guilty plea only waives those

constitutional rights that are known to defendant at the time of the plea. As Miller was not decided

prior to the plea, the majority concludes that defendant could not have waived his constitutional

claim based on Miller. The flaw in the majority’s logic is that, even if Miller and its progeny

created a novel constitutional right, none of those decisions have any application here. Not one of

these cases hold that a sentencing court is required to consider a juvenile defendant’s youthful

characteristics prior to accepting a fully negotiated guilty plea. Consequently, Miller and its

progeny did not create a novel constitutional right that applies to defendant’s case. As such,

defendant waived this argument by virtue of his fully negotiated plea.

¶ 32 Defendant is not entitled to a new sentencing hearing based on the procedural posture of

this appeal. “[F]ollowing the entry of judgment on a negotiated guilty plea, even if a defendant

wants to challenge only his sentence, he must move to withdraw the guilty plea and vacate the

judgment so that, in the event the motion is granted, the parties are returned to the status quo.”

People v. Evans, 174 Ill. 2d 320, 332 (1996). Conversely, a defendant who enters a negotiated plea

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 cannot attempt to unilaterally reduce his sentence while holding the State to its part of the

agreement. Id. at 327. In People v. Johnson, 2019 IL 122956, ¶ 47, our supreme court held that

where a plea agreement includes sentencing concessions from the State or the dismissal of charges,

defendant’s only postplea recourse is to move to withdraw the plea. Defendant does not adopt this

approach, likely because the process would result in the reinstatement of the first degree murder

charge the State agreed to reduce in exchange for the plea.

¶ 33 A defendant may challenge his sentence as void without moving to withdraw a fully

negotiated plea in two narrow instances: (1) where a defendant claimed the trial court lacked

personal or subject-matter jurisdiction (People v. Price, 2016 IL 118613, ¶ 31) and (2) where a

defendant challenged the statute under which he was sentenced as facially unconstitutional and

void ab initio (People v. Guevara, 216 Ill. 2d 533, 542-43 (2005)). Defendant’s as-applied

sentencing challenge does not fall within either exemption. See People v. Thompson, 2015 IL

118151, ¶ 32 (recognizing that the void ab initio doctrine does not apply to as-applied challenges).

Consequently, to have the trial court consider his youthful characteristics for purposes of

sentencing, defendant must move to withdraw his guilty plea—a plea that resulted in a sentence

defendant himself approved as part of his fully negotiated agreement.

¶ 34 The majority grants defendant a new sentencing hearing due to the State’s concession of

the issue. However, the law is clear that defendant must move to withdraw his guilty plea. A party

may waive an issue, but it cannot waive the law and this court is not required to accept the State’s

concession. Beacham v. Walker, 231 Ill. 2d 51, 60-61 (2008). Neither the State nor defendant cite

to any direct authority holding that the proper remedy is to award a new sentencing hearing based

on a Miller challenge in the context of a fully negotiated plea. To the extent the majority opinion

accepts the State’s concession, the opinion should be limited to the facts of this case. Consequently,

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 unless and until our supreme court holds otherwise, the majority’s decision to award a new

sentencing hearing should be limited to the State’s failure to argue the issue.

¶ 35 Finally, although defendant does not seek to withdraw his plea directly, he generally argues

that his plea was involuntary. To the extent defendant suggests that facing the possibility of a

mandatory life sentence rendered his plea involuntarily made, the trial court admonished defendant

prior to accepting his plea. The court found defendant’s plea to be knowingly and voluntarily made

and accepted his plea. His plea was voluntarily and intelligently made. A plea is not invalid simply

because “the maximum penalty then assumed applicable has been held inapplicable in subsequent

judicial decisions.” Brady v. United States, 397 U.S. 742, 757 (1970). In other words, Miller’s

holding does not affect the voluntariness of defendant’s plea.

¶ 36 We should affirm the trial court.

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 No. 3-18-0357

Cite as: People v. Johnson, 2021 IL App (3d) 180357

Decision Under Review: Appeal from the Circuit Court of Tazewell County, No. 94-CF-
382; the Hon. Michael D. Risinger, Judge, presiding.

Attorneys James E. Chadd, Peter A. Carusona, and Jay Wiegman, of State
for Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:

Attorneys Stewart J. Umholtz, State’s Attorney, of Pekin (Patrick
for Delfino, Thomas D. Arado, and Stephanie Raymond, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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