People v. McClurkin

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Appellate Court Date: 2021.03.22
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People v. McClurkin, 2020 IL App (1st) 171274

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

District & No. First District, Sixth Division
No. 1-17-1274

Filed June 5, 2020
Rehearing denied August 26, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 97-CR-26539; the
Review Hon. Thomas V. Gainer Jr., Judge, presiding.

Judgment Affirmed.

Counsel on James E. Chadd, Patricia Mysza, and Erin Sostock, of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Brian K. Hodes, Assistant State’s Attorneys, of
counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Cunningham and Connors concurred in the judgment and
opinion.
 OPINION

¶1 Defendant, Bryan McClurkin, appeals from an order of the circuit court, denying him leave
to file a successive petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1
et seq. (West 2018)). On appeal, defendant contends that the denial of leave to file was
erroneous because he showed the requisite cause and prejudice for filing a successive petition.
For the reasons stated below, we affirm.

¶2 I. JURISDICTION
¶3 In January 2017, defendant filed a motion for leave to file a successive postconviction
petition. The circuit court denied that motion on April 14, 2017, and defendant filed his notice
of appeal on May 2, 2017. Accordingly, this court has jurisdiction pursuant to article VI,
section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court
Rule 651(a) (eff. July 1, 2017), governing appeals from a final judgment in a postconviction
proceeding.

¶4 II. BACKGROUND
¶5 Following a 2000 jury trial in which the jury was instructed on second degree murder and
self-defense, as well as first degree murder, defendant was found guilty of the September 1997
first degree murders of shopkeeper Nabil Tayeh and his 15-year-old employee, Maher Harb.
At trial, defendant had claimed self-defense against Tayeh and Harb, despite defendant being
6’8” tall while Tayeh was 5’7” tall and Harb was 5’3” tall. The jury found defendant eligible
for the death penalty, including that he was at least 18 years old when he murdered two or more
people.
¶6 A sentencing hearing was held, with considerable evidence in aggravation and mitigation.
In relevant part, psychologist Dr. Lawrence Heinrich testified for the defense that defendant
had a severe personality disorder, albeit no mental illness, at the time of the offenses; that is,
extreme emotional distress resulting from childhood abuse impaired his judgment and impulse
control. Dr. Heinrich also testified that defendant’s personality disorder included “an inflated
sense of self-importance, resentful [and] arrogant attitudes, socially intimidating manner,” and
being “self-centered and socially intolerant” as well as “aware of and inconsiderate of the
feelings of others.” Dr. Heinrich’s opinion was based on interviews and testing in September
1999.
¶7 The record shows that defendant was born in December 1972 and had felony criminal
convictions in 1991 and 1994, including armed violence, with prison terms of six and four
years respectively. The jury chose to impose natural life imprisonment rather than the death
penalty.
¶8 Before sentencing defendant, the trial court asked if there was any contest to the mandatory
application of a life sentence, and the defense had none. Noting that a natural life sentence was
mandatory and that mitigating evidence had been presented, the court gave defendant
concurrent sentences of natural life imprisonment.
¶9 On direct appeal, we affirmed the convictions against a contention that the State misstated
evidence in its rebuttal closing argument. People v. McClurkin, No. 1-00-3322 (2003)
(unpublished order under Illinois Supreme Court Rule 23). The evidence underlying

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 defendant’s convictions is adequately set forth in our direct appeal order, so we shall set forth
only the evidence and procedural history necessary for an understanding of this appeal. In
affirming the convictions, this court found in part that the evidence against defendant was not
closely balanced.
¶ 10 Defendant filed a pro se postconviction petition in 2005, claiming in relevant part that
counsel was ineffective for not calling Dr. Heinrich as a trial witness to support his self-defense
argument and that his life sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The
circuit court summarily dismissed the petition in March 2005, finding that defendant “was
never able to establish that he acted in self defense as a result of his extreme emotional distress
in either the trial or the sentencing phase” and “was sentenced following a lengthy investigation
by the trial court of both mitigating and aggravating circumstances which runs contrary to the
assertion that the sentence was ‘automatic.’ ” This court affirmed that disposition against a
contention that the ineffectiveness claim for not calling Dr. Heinrich at trial was at least
arguably meritorious. People v. McClurkin, No. 1-05-1381 (2006) (unpublished order under
Illinois Supreme Court Rule 23). We held that evidence of a personality disorder that causes
defendant to “overreact and become enraged *** might account for the extreme nature of
defendant’s behavior, but would not establish that defendant believed, reasonably or
unreasonably, that his actions were justified,” so that defendant was not prejudiced by the
failure to present this evidence at trial. Id. at 6.
¶ 11 In January 2017, defendant filed the pro se motion for leave to file a successive
postconviction petition now at issue. Defendant claimed that his mandatory life sentence
without possibility of parole was unconstitutionally excessive and disproportionate as applied
to him because the trial court could not consider the effect on his fatal actions of his age, 24
years, at the time of the offenses, his history of abuse, and his personality disorder. Defendant
pointed to Dr. Heinrich’s sentencing testimony to show his “constant, vicious physical abuse”
and “severe personality disorder.” He argued that this court has stated—in People v. Gipson,
2015 IL App (1st) 122451, People v. House, 2015 IL App (1st) 110580, and People v. Brown,
2015 IL App (1st) 130048—that Miller v. Alabama, 567 U.S. 460 (2012), holding
unconstitutional the mandatory imposition of life sentences without possibility of parole upon
persons who were minors at the time of their offenses, should not be limited to defendants who
were minors but should apply to young adults.
¶ 12 On April 14, 2017, the circuit court denied defendant leave to file a successive petition.
The court noted that, of the cases defendant cited, only House actually applied Miller to an
adult. The court distinguished House’s “unique factual circumstances,” including a 19-year-
old offender with no criminal history who was a “lookout rather than actively participating in
the shooting.” By contrast, defendant was “significantly older,” “had an extensive criminal
background,” and directly perpetrated the murders. The court noted that the statutory
requirement of natural life imprisonment for murdering more than one person has been upheld.
The court found that there was no proportionate-penalties issue because defendant was not a
juvenile or minor when he committed these offenses and thus was not similarly situated to
minors who by statute are no longer subject to mandatory natural life imprisonment. Defendant
timely filed this appeal.

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¶ 13 III. ANALYSIS
¶ 14 Defendant contends that that the denial of leave to file a successive petition was erroneous
because he showed the requisite cause and prejudice for filing a successive postconviction
petition, raising a claim that his mandatory life sentence without possibility of parole was
unconstitutional as applied to him, because the trial court could not consider the effect on his
fatal actions of his age, 24 years, at the time of the offenses, his history of abuse, and his
personality disorder.
¶ 15 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a
mechanism by which those under criminal sentence can assert their convictions were the result
of a substantial denial of their rights under the federal and State constitutions. 725 ILCS 5/122-
1(a)(1) (West 2018). The Act provides that a defendant may file only one postconviction
petition without leave of court, which is granted only when the defendant shows both cause for
not raising a claim earlier and prejudice from not raising it earlier. “Cause” is an objective
factor impeding raising the claim earlier, and “prejudice” is an error that so infected the trial
proceedings that the resulting judgment violated due process. 725 ILCS 5/122-1(f) (West
2018). Because successive petitions are disfavored, the burden is on a defendant seeking to file
a successive petition, including a pro se defendant, to show cause and prejudice. People v.
Smith, 2014 IL 115946, ¶¶ 30-31, 34. A successive petition is held to a higher standard than
the frivolous and patently without merit, or the gist of a meritorious claim, standard for
summarily dismissing an initial postconviction petition. Id. ¶ 35.
“[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.” Id.
We review de novo the denial of leave to file a successive postconviction petition. People v.
Bailey, 2017 IL 121450, ¶ 13; People v. Handy, 2019 IL App (1st) 170213, ¶ 27, pet. for leave
to appeal pending, No. 125827 (filed Mar. 3, 2020).
¶ 16 In People v. Leon Miller, 202 Ill. 2d 328 (2002), our supreme court upheld a trial court
decision to sentence a defendant who was 15 at the time of his offense(s) and tried as an adult
to 50 years’ imprisonment, despite the statutory requirement of natural life sentence for two or
more murders. The supreme court agreed with the trial court that a natural life sentence would
have been disproportionate because it would have resulted from the interaction of three statutes
mandating that certain juveniles be tried as adults, basing criminal liability on accountability,
and requiring natural life imprisonment for two or more murders. Id. at 340.
“We agree with defendant that a mandatory sentence of natural life in prison with no
possibility of parole grossly distorts the factual realities of the case and does not
accurately represent defendant’s personal culpability such that it shocks the moral sense
of the community. This moral sense is particularly true, as in the case before us, where
a 15-year-old with one minute to contemplate his decision to participate in the incident
and stood as a lookout during the shooting, but never handled a gun, is subject to life
imprisonment with no possibility of parole—the same sentence applicable to the actual
shooter. Our decision does not imply that a sentence of life imprisonment for a juvenile
offender convicted under a theory of accountability is never appropriate. It is certainly
possible to contemplate a situation where a juvenile offender actively participated in

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 the planning of a crime resulting in the death of two or more individuals, such that a
sentence of natural life imprisonment without the possibility of parole is appropriate.
However, that is not the case before this court ***.” Id. at 341.
¶ 17 In People v. Harris, 2018 IL 121932, ¶¶ 1, 16, 50, a defendant sentenced to a mandatory
76 years’ imprisonment for first degree murder, attempted first degree murder, and aggravated
battery with a firearm committed when he was 18 years old asked our supreme court “ ‘to
extend the bright line rule of Miller to young adults ages 18 to 21.’ ” However, the Harris court
rejected the facial constitutional challenge and declined to extend Miller. While the Harris
defendant argued “that emerging scientific research on the neurological development of young
adults supports extending Miller to adults under the age of 21,” the supreme court found that
“the line drawn by the Supreme Court at age 18 was not based primarily on scientific research”
but was a categorical rule based on society’s use of 18 as the threshold between childhood and
adulthood for various purposes. Id. ¶¶ 59-60. “New research findings do not necessarily alter
that traditional line between adults and juveniles.” Id. ¶ 60. The supreme court found an as-
applied challenge to the sentence to be premature, noting that “the record here does not contain
evidence about how the evolving science on juvenile maturity and brain development that
helped form the basis for the Miller decision applies to defendant’s specific facts and
circumstances.” Id. ¶ 46.
¶ 18 Since Harris, our supreme court has held that
“to prevail on a claim based on Miller and its progeny, a defendant sentenced for an
offense committed while a juvenile must show that (1) the defendant was subject to a
life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing
court failed to consider youth and its attendant characteristics in imposing the
sentence.” (Emphasis added.) People v. Buffer, 2019 IL 122327, ¶ 27.
¶ 19 Upon being directed by our supreme court to reconsider its decision in light of Harris, the
House court reiterated its finding that a 19-year-old offender’s life sentences for double murder
were unconstitutional as applied for being disproportionate. People v. House, 2019 IL App
(1st) 110580-B, ¶¶ 4, 27, 32, 66, appeal allowed, No. 125124 (Ill. Jan. 29, 2020).
“While defendant was not a juvenile at the time of the offense, his young age of 19 is
relevant under the circumstances of this case. As in Leon Miller, defendant’s sentence
involved the convergence of the accountability statute and the mandatory natural life
sentence. We acknowledge that the offender in Leon Miller was 15, never handled a
firearm, and had less than a minute to consider the implications of his participation. In
the present case, the State’s evidence at trial established that defendant was not present
at the scene of the murder but merely acted as a lookout near the railroad tracks. There
was no evidence that defendant helped to plan the commission but instead took orders
from higher ranking [gang] members. While defendant had a greater involvement in
the commission of the offenses than the defendant in Leon Miller, after considering the
evidence and defendant’s relevant culpability, we question the propriety of a mandatory
natural life sentence for a 19-year-old defendant convicted under a theory of
accountability. Although defendant acted as a lookout during the commission of the
crime and was not the actual shooter, he received a mandatory natural life sentence, the
same sentence applicable to the person who pulled the trigger. Defendant is serving the
same mandatory sentence of natural life as Verser, a codefendant who participated in
the shooting of the victims, while Weatherspoon, a codefendant with the similar

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 culpability as defendant has been released from the penitentiary following resentencing
because Weatherspoon was 17 years old during the commission of the murders.” Id.
¶ 46.
¶ 20 In People v. Ramsey, 2019 IL App (3d) 160759, ¶¶ 4, 7, 23, this court rejected a
proportionate-penalties challenge to a natural life sentence by a defendant who was 18 at the
time of his offenses. The Ramsey court noted that the House court
“based its decision in part on evolving science regarding brain development, which has
the effect of blurring the line drawn at 18 years of age that demarcates adulthood for
legal purposes. [Citation.] However, the facts of House are markedly different from
those in the instant case. Significantly, House was convicted on an accountability
theory, and he was not present at the scene of the murders; rather, he acted as a lookout
nearby, and no evidence was presented to indicate that he aided in the planning of the
murders. [Citation.] In contrast, Ramsey was a solo actor who sexually assaulted and
killed one minor and then broke into a residence and shot four other minors, killing
one. These are not circumstances that warrant the type of leniency House received.” Id.
¶ 23 (citing House, 2019 IL App (1st) 110580-B, ¶ 65).
See also Handy, 2019 IL App (1st) 170213, ¶¶ 1, 38, 40, 42 (rejecting an 18-year-old offender’s
as-applied proportionate penalties challenge to his 60-year prison sentence and affirming the
denial of leave to file a successive petition, at least in part because the House defendant was a
mere lookout while the Handy defendant active participated in his offenses).
¶ 21 Here, defendant has an actual sentence of natural life imprisonment rather than a de facto
life sentence (see Buffer, 2019 IL 122327, ¶ 40 (a prison sentence of more than 40 years is a
de facto life sentence)) and that sentence was mandatory in the sense that, as in House, the trial
court had no discretion to impose a shorter sentence. House, 2019 IL App (1st) 110580-B,
¶ 64. On the other hand, defendant was a 24-year-old adult—no longer a teenager as in
House—when he committed the murders of Harb and Tayeh. Moreover, defendant personally
killed Harb and Tayeh, rather than being found guilty based on accountability as in Leon Miller
or House. In sum, we cannot say about defendant what this court said about House in granting
relief:
“[W]hile clearly no longer a juvenile, defendant, at age 19 years and 2 months, was
barely a legal adult and still a teenager when he committed these offenses. His
youthfulness is relevant when considered alongside his participation in the actual
shootings. Defendant’s presentence investigation report showed that his only prior
offenses were possession of a controlled substance with intent to deliver. Defendant
did not have a criminal history of committing violent crimes.” Id. ¶ 63.
¶ 22 Lastly, we note that defendant is not arguing that his sentence is disproportionate due solely
to his age at the time of the offense but also due to his diagnosed personality disorder. Detailed
evidence of that diagnosis is in the trial court record in the form of Dr. Heinrich’s sentencing
testimony and related exhibits. Thus, we find that the circuit court had, and we have, an ample
record upon which to evaluate defendant’s as-applied challenge to his sentence for the requisite
cause and prejudice. It is axiomatic that personality or behavioral disorders may be aggravating
as well as mitigating factors in sentencing. People v. Baez, 241 Ill. 2d 44, 122-23 (2011);
People v. Wheeler, 2019 IL App (4th) 160937, ¶ 44. Moreover, in one of the cases that led to
Miller, the United States Supreme Court noted the difference

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 “between the juvenile offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.
[Citation.] As we understand it, this difficulty underlies the rule forbidding
psychiatrists from diagnosing any patient under 18 as having antisocial personality
disorder, a disorder also referred to as psychopathy or sociopathy, and which is
characterized by callousness, cynicism, and contempt for the feelings, rights, and
suffering of others.” Roper v. Simmons, 543 U.S. 551, 573 (2005).
The fact that Dr. Heinrich diagnosed defendant with a personality disorder—including being
“self-centered and socially intolerant” as well as “aware of and inconsiderate of the feelings of
others” (albeit not antisocial personality disorder particularly)—when he was nearly 27 years
old, and attributed his actions two years earlier to that disorder, militates against attributing his
fatal actions in this case to transient immaturity.
¶ 23 Despite defendant’s argument that the law interpreting and applying Miller v. Alabama is
evolving across the nation, we conclude that the law is sufficiently resolved in Illinois for the
circuit court and this court to assess defendant’s motion to file a successive postconviction
petition and conclude that he has not shown the requisite prejudice for filing a successive
petition.

¶ 24 IV. CONCLUSION
¶ 25 Accordingly, we affirm the judgment of the circuit court.

¶ 26 Affirmed.

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