People v. Butler

2021 IL App (1st) 200038-U

SECOND DIVISION
December 28, 2021
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NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Respondent-Appellee, ) Cook County.
)
v. ) No. 04 CR 5686
)
TORRANCE BUTLER, ) Honorable
) Lawrence E. Flood,
Petitioner-Appellant. ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.

ORDER

¶1 Held: The circuit court’s order dismissing petitioner’s successive postconviction petition
is affirmed. Petitioner failed to establish the requisite prejudice to justify further proceedings.
¶2 Petitioner Torrance Butler appeals from an order of the circuit court of Cook County

summarily dismissing his successive petition for postconviction relief. Petitioner contends that

he sufficiently established cause and prejudice to bring his as-applied challenge to the truth-in-

sentencing statute (730 ILCS 5/3-6-3(a)(2)(i) (West 2020)), which prevents juveniles like him

from obtaining an early release from prison based on demonstrated potential for rehabilitation.

¶3 For the following reasons, we affirm.

¶4 BACKGROUND
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¶5 A grand jury indicted petitioner and his codefendant, Nolan Jackson, for the 2004 murder

of Garrett Davies. Davies was killed during a home invasion and armed robbery committed by

petitioner and codefendant. Petitioner was a 17-year-old minor at the time.

¶6 Following a Rule 402 conference, petitioner entered a fully negotiated plea agreement

with the State. In exchange for the State’s recommendation of a 21-year prison sentence,

petitioner agreed to plead guilty to first degree murder committed during an armed robbery. At

the plea hearing, the court admonished petitioner the sentencing range for first degree murder is

20 to 60 years with “no day-for-day good time credits.” The State then provided a factual basis

for the plea agreement.

¶7 According to the factual basis, petitioner confessed he went to Garrett’s apartment to

steal money and marijuana. When Garrett discovered petitioner searching through his bedroom

dresser, both reached for a gun that was on the bed. Petitioner grabbed the gun first and shot

Garrett. Then, petitioner and his codefendant left the apartment with some money and marijuana.

A witness identified petitioner and his codefendant as the two individuals seen leaving Garrett’s

apartment that afternoon on February 9, 2004. A medical examiner determined that Garrett died

of a gunshot wound to the neck.

¶8 After petitioner stipulated to the factual basis, the court accepted his guilty plea and

proceeded to sentencing. A presentence report was admitted into the record. In aggravation, the

State presented four victim impact statements. Garrett’s mother read her statement into the

record. In mitigation, petitioner cited the facts presented in the Rule 402 conference. The court

sentenced petitioner, as agreed, to 21 years’ imprisonment. In doing so, the court stated it

considered “the mandatory factors set forth in the statute concerning aggravation and mitigation,

the [petitioner] himself, the facts in the case as brought forth at the factual basis stage of the plea,

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all things considered in trying to in the most difficult way manageable form a just sentence.” The

court also advised petitioner of his right to appeal, which required him to file a motion to

withdraw his plea within 30 days. However, petitioner did not withdraw his plea or pursue a

direct appeal.

¶9 In 2009, petitioner filed his initial pro se postconviction petition. The court appointed

counsel for petitioner, and counsel filed an amended petition arguing petitioner’s 21-year

sentence should be reduced by three years because the court did not advise him that a three-year

mandatory supervised release term followed the 21-year prison term he negotiated. The State

filed a motion to dismiss arguing such a reduction would result in a prison sentence below the

statutory minimum of 20 years’ imprisonment. Following a hearing, the court agreed with the

State’s position and dismissed petitioner’s petition. Petitioner appealed the dismissal, but

according to petitioner, he voluntarily dismissed the appeal to avoid the risk of receiving a 25-

year firearm enhancement if he succeeded.

¶ 10 In 2019, petitioner filed the successive postconviction petition that is the subject of this

case. Petitioner alleged, in pertinent part, “Newly discovered evidence in regards to Petitioner

being a minor during the court procedures and sentencing hearing, also during the commission of

the offense.” Petitioner argued the truth-in-sentencing statute is unconstitutional as applied to

him because it precludes him from demonstrating his rehabilitative potential and earning an early

release. Petitioner noted he is required to serve 100% of his 21-year murder sentence under the

truth-in-sentencing statute. Petitioner supported his petition with a transcript of the plea hearing

and pronouncement of sentence. He also attached an affidavit stating he was unaware at the time

of the hearing that his sentence included a three-year mandatory supervised release term. The

circuit court summarily dismissed petitioner’s successive petition in a written order finding that

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petitioner waived all non-jurisdictional claims in his petition by voluntarily pleading guilty and

not withdrawing his plea. This appeal follows.

¶ 11 ANALYSIS

¶ 12 Petitioner contends he is entitled to second-stage proceedings because he satisfied the

cause and prejudice test by alleging the truth-in-sentencing statute, as applied to him, violates the

eighth amendment of the United States Constitution. The thrust of petitioner’s argument is that

while the eighth amendment under Miller v. Alabama requires the State to allow juvenile

offenders greater opportunities than adults to reform while in prison, the truth-in-sentencing

statute does not distinguish between adults and juveniles.

¶ 13 The Post-Conviction Hearing Act contemplates the filing of one petition without leave of

court. People v. Sanders, 2016 IL 118123, ¶ 24 (citing 725 ILCS 5/122-1(f) (West 2014)). For

that reason, any claim not raised in an original or amended petition is waived. Id. (citing 725

ILCS 5/122-3 (West 2014)). However, a petitioner may obtain leave to file a successive petition

by showing cause and prejudice. People v. Johnson, 2020 IL App (2d) 170646, ¶ 8 (citing 725

ILCS 5/122-1(f) (West 2016)). This test applies to individual claims and not the entire petition.

People v. Edwards, 2012 IL App (1st) 091651, ¶ 20. “Cause” is an objective factor that impeded

a petitioner’s ability to raise a claim in the initial postconviction proceedings. Id. (citing People

v. Pitsonbarger, 205 Ill. 2d 444, 462 (2002)). “Prejudice” means showing “ ‘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.’ ” Johnson, 2020 IL App (2d) 170646, ¶ 8 (quoting

725 ILCS 5/122-1(f)(2) (West 2016)).

¶ 14 When a petitioner files a motion for leave to file a successive postconviction petition, the

court conducts “a preliminary screening” to determine whether the motion sufficiently alleges

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facts that establish a prima facie showing of cause and prejudice. Johnson, 2020 IL App (2d)

170646, ¶ 8 (citing People v. Bailey, 2017 IL 121450, ¶ 24). We are mindful that Illinois courts

treat successive petitions differently from initial petitions; the cause and prejudice test is “more

exacting” than a “gist” showing. Edwards, 2012 IL App (1st) 091651, ¶ 22.

¶ 15 Leave of court to file a successive 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.” People v. Smith, 2014 IL

115946, ¶ 35. Where, as here, the circuit court does not hold an evidentiary hearing, we review

de novo the court’s denial of leave to file petitioner’s successive postconviction petition. Id.

¶ 16 The State concedes that petitioner has established cause for failing to bring his sentencing

claim earlier because he relies on cases decided after his initial postconviction proceedings in

2009. For the same reason, we reject the State’s argument that petitioner waived the issue by

pleading guilty. “Waiver” means “the voluntary relinquishment of a known right.” People v.

Johnson, 2021 IL App (3d) 180357, ¶ 16 (quoting People v. Phipps, 238 Ill. 2d 54, 62 (2010)).

Petitioner could not have voluntarily relinquished a right that was not available when he pleaded

guilty. Id. ¶ 20. He did not waive the right to raise the issue because he pleaded guilty without

the benefit of Miller v. Alabama, 567 U.S. 460 (2012), and its progeny. Id. Thus, the issue before

us concerns whether petitioner has made a prima facie showing of prejudice. See, e.g., People v.

Glinsey, 2021 IL App (1st) 191145, ¶ 35.

¶ 17 In Miller, the United States Supreme Court held that mandatory life sentences without the

possibility of parole for juvenile offenders violate the eighth amendment. Miller, 567 U.S. at

479. Our supreme court has applied the holding in Miller to de facto life sentences (People v.

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Reyes, 2016 IL 119271, ¶ 10 (per curiam)) and discretionary life sentences (People v. Holman,

2017 IL 120655, ¶ 40). Our supreme court has also determined the maximum sentence that a

juvenile offender can be given without being considered a de facto life sentence is 40 years.

People v. Buffer, 2019 IL 122327, ¶ 40. More recently, our supreme court in People v. Dorsey

held that a juvenile offender’s opportunity for release before spending more than 40 years in

prison is the relevant consideration to determine whether a minor’s sentence is a de facto life

sentence, regardless of the sentence imposed by the trial court. People v. Brakes, 2021 IL App

(1st) 181737, ¶ 34 (citing People v. Dorsey, 2021 IL 123010, ¶ 64).

¶ 18 Petitioner concedes his 21-year sentence with no possibility of parole is not a life

sentence. He also acknowledges his sentence is merely one year more than the mandatory

statutory 20-year minimum for first degree murder. Because the truth-in-sentencing statute (730

ILCS 5/3-6-3(a)(2)(i) (West 2020)) provides that individuals convicted of first degree murder

must serve 100% of their sentence, petitioner argues the statute prevents juveniles like him from

obtaining an early release based on demonstrated potential for rehabilitation.

¶ 19 Petitioner relies, as he did in his successive petition, primarily on People v. Othman, 2019

IL App (1st) 150823 (Othman I), where we found the truth-in-sentencing statute was

unconstitutional as applied to juvenile offenders. In Othman I, the minor defendant was

convicted of murder and sentenced to 30 years plus a mandatory 25-year enhancement for firing

a gun; he received a total sentence of 55 years. Relying on Miller, the appellate court determined

the sentence was a life sentence and the trial court did not consider the rehabilitation potential of

the defendant. The court noted the truth-in-sentencing statute required the minor defendant to

serve 100% of his sentence, the same as an adult, without regard to the rehabilitation potential of

minors. Therefore, the court found the statute violated the constitution.

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¶ 20 However, our supreme court subsequently entered a supervisory order vacating the

portions of Othman I which ruled on the constitutionality of the defendant’s sentence (People v.

Othman, No. 125580 (Ill. Jan. 9, 2020) (supervisory order)). Petitioner argues the reasoning in

Othman I was correct and should be applied here. See People v. Othman, 2020 IL App (1st)

150823-B, ¶¶ 3-5. We disagree.

¶ 21 As the State points out, the appellate court rejected similar arguments about truth-in-

sentencing before and after Othman I was decided. See People v. Pacheco, 2013 IL App (4th)

110409, ¶ 60; People v. Banks, 2015 IL App (1st) 130985, ¶ 22; and People v. Cavazos, 2015 IL

App (2d) 120444, ¶ 86; see also Johnson, 2020 IL App (2d) 170646, ¶¶ 7-15 (since Miller,

Illinois courts have rejected similar as applied challenges to the constitutionality of the truth-in-

sentencing statute); and Brakes, 2021 IL App (1st) 181737, ¶¶ 39-44. The Fourth District in

Pacheco expressly rejected the same argument petitioner makes here: “The Supreme Court did

not hold in Roper, Graham, or Miller the eighth amendment prohibits a juvenile defendant from

being subject to the same mandatory minimum sentence as an adult, unless the mandatory

minimum sentence was death or life in prison without the possibility of parole.” Pacheco, 2013

IL App (4th) 110409, ¶ 58, quoted in Johnson, 2020 IL App (2d) 170646, ¶ 13. Petitioner was

not sentenced to life in prison without the possibility of parole. Rather, he was sentenced to one

year more than the statutory 20-year minimum for first degree murder. Accordingly, petitioner’s

sentence does not fall under the protections of Miller. See Johnson, 2020 IL App (2d) 170646, ¶

13 (the defendant’s 27-year sentence for murder does not fall under the protections of Miller).

¶ 22 Recently in Brakes, 2021 IL App (1st) 181737, ¶¶ 40-41, we expressed our agreement

with the Fourth District in Pacheco. In Brakes, we found the reasoning in Othman I unpersuasive

even if it survived our supreme court’s supervisory order. Id. We also noted the analysis in

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Othman I was dicta because the court there found the defendant’s 55-year sentence substantively

unconstitutional under the proportionate penalties clause. Id. (citing Othman I, 2019 IL App (1st)

150823, ¶¶ 77-86). Thus, further analysis of the constitutionality of the truth-in-sentencing

statute was not necessary to its judgment. Id. ¶ 41. In rejecting the defendant’s as-applied

challenge to the truth-in-sentencing statute, we further observed that our supreme court’s

decision in Dorsey effectively overruled the reasoning in Othman I. Id. ¶ 42. We reasoned that

Dorsey shifts the focus of the inquiry from the sentenced imposed to the actual time a defendant

must serve. Id. “In other words, a juvenile defendant’s sentence (whether served at 100%, 85%,

or 50%) may be subject to a constitutional challenge only if it will keep the juvenile in prison for

more than 40 years.” Id. (citing Dorsey, 2021 IL 123010, ¶ 64 (relying on Buffer, 2019 IL

122327)).

¶ 23 Here, petitioner’s 21-year sentence served at 100% does not violate the eighth

amendment to the constitution because it will not keep him in prison for more than 40 years.

“Nothing requires the General Assembly to guarantee an opportunity for release before 40

years.” Brakes, 2021 IL App (1st) 181737, ¶ 4 (citing Dorsey, 2021 IL 123010, ¶¶ 52-53). In

finding that petitioner’s eighth amendment claim based on Miller fails, we express no opinion on

the substantive reasonableness of his 21-year sentence under the proportionate penalties clause

because petitioner only challenged his sentence as unconstitutional based on the application of

the truth-in-sentencing statute. See id. ¶ 44 (if the defendant’s sentence violates the proportionate

penalties clause, it is not because he had to serve part of it at 100%).

¶ 24 Because petitioner’s sentencing claim fails as a matter of law, he has failed to make a

prima facie showing of prejudice, and we affirm the circuit court’s order denying leave to file

petitioner’s successive postconviction petition. See Glinsey, 2021 IL App (1st) 191145, ¶ 35.

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¶ 25 CONCLUSION

¶ 26 Accordingly, we affirm the circuit court’s dismissal order.

¶ 27 Affirmed.

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