People v. Thomas

2022 IL App (1st) 200164

FIRST DISTRICT
SIXTH DIVISION
April 29, 2022

No. 1-20-0164

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 485
)
DERRICK THOMAS, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge, presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Pierce concurred in the judgment and opinion.
Justice Mikva dissented, with opinion.

OPINION

¶1 Following a jury trial, defendant Derrick Thomas was convicted of first degree murder,

attempted first degree murder, and attempted armed robbery and sentenced to a total of 80 years’

imprisonment, the minimum sentence in light of verdicts that defendant personally discharged a

firearm causing death during the murder and great bodily harm during the attempted murder. We

affirmed on direct appeal. People v. Thomas, 2017 IL App (1st) 142557. Defendant now appeals

from the summary dismissal of his postconviction petition, contending that he made at least the

gist of a showing that his de facto life sentence for offenses committed when he was 18 years old

constitutes an as-applied violation of the proportionate penalties clause of the Illinois Constitution.

Ill. Const. 1970, art. 1, § 11. For the reasons stated below, we affirm.
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¶2 I. JURISDICTION

¶3 The circuit court summarily dismissed defendant’s September 2019 postconviction

petition, as supplemented in October 2019, on December 5, 2019. Defendant filed his notice of

appeal by mailing it on January 2, 2020, with the circuit court clerk marking it as filed on January

8, 2020. 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 Defendant was charged, in relevant part, with the first degree murder of Arvon Grays,

attempted first degree murder of Terrence Redditt, and attempted armed robbery of Redditt on or

about November 15, 2011. He allegedly personally discharged a firearm, proximately causing

death while committing the murder and proximately causing great bodily harm while committing

the attempted murder.

¶6 A. Trial

¶7 Redditt testified that he and Grays were wholesaling tire rims and clothing in 2011. Redditt

was doing that when he met defendant in late October or early November of 2011. He identified

defendant at trial as the man he met and “the guy right there that shot me.” They discussed Redditt

selling some merchandise and exchanged telephone numbers. About a week later, defendant called

Redditt and brought him a man who bought his rims. On November 15, 2011, defendant called

Redditt from a different number than he provided in October, and they discussed the tire rims and

a credit card scam in which Redditt had participated. Defendant told Redditt that his brother wanted

to buy tire rims from Redditt.

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¶8 Later that day, Redditt and Grays met defendant at a home, with two young people nearby.

Neither Redditt nor Grays was armed. Defendant walked towards Redditt, who exited the car to

talk with him while Grays stayed in the car. Redditt noticed that the young people with defendant

looked nervous, as if they anticipated something. When he asked defendant why, he replied that

“they’re scary.” Redditt asked defendant where the buyer was, and defendant pretended to call

someone. Redditt turned his back on defendant and told Grays that he believed defendant was not

going to buy anything but probably do a “stickup.” When Redditt turned around, defendant pointed

a gun at his stomach and said, “Give me everything.” Redditt asked defendant if he was “for real,”

and he shot Redditt in the stomach. As Redditt ran away, defendant chased him and fired two more

shots, striking him in the side. Defendant fled after Redditt pretended he saw a police officer.

Redditt made his way to a nearby porch and heard more gunshots, which he presumed was

defendant shooting Grays. Redditt was taken by ambulance to the hospital, where he had surgery.

As of trial, he still had stomach pains due to the shooting. While in the hospital, he learned that

Grays had been killed. Redditt’s car had three bullet holes in it after the incident that it did not

have before. He identified defendant in a photograph and a police lineup later in November 2011.

¶9 Robert Williams and Diamond Isom testified that they were at a friend’s home on

November 15, 2011, when defendant came by. He asked Isom to lend him her cellphone so he

could “do a little sting” or “hit a sting,” which Williams explained meant committing a robbery.

Isom lent defendant her cellphone for $50. He showed Williams and Isom the outline of a gun

inside his clothing and said he was going to rob a man he had met. They went to the porch of a

nearby home, where defendant approached a car with two occupants. The driver exited and spoke

with defendant. Williams and Isom heard defendant tell the driver “Don’t move,” and the driver

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ran away. Defendant fired several gunshots at the fleeing driver and then at the car. Neither

Williams nor Isom saw anyone but defendant holding a gun.

¶ 10 Grays died of a single gunshot wound, and Redditt’s treatment for multiple gunshot

wounds included intestinal surgery. A bullet was recovered from Redditt at the hospital and

another was recovered from Grays at the morgue. Four shell casings were found at the scene, and

three bullets and a bullet fragment were found inside the car. A forensic scientist opined that the

four shell casings from the scene were fired from the same gun.

¶ 11 Defendant testified that he met Redditt about two to three weeks before the incident of

November 15, 2011, and they discussed a credit card scam and exchanged telephone numbers.

Redditt called him later that day to discuss the scam. On November 15, 2011, defendant saw

Williams and Isom but did not tell them that he was armed or that he intended to commit a robbery.

He called Reddit and met with Redditt and Grays, who he had not seen before, to discuss the scam.

He shot them in self-defense when Redditt demanded his money and started to draw a gun from

his waistband. He fired once, and then fled, firing more shots as he ran. He acknowledged firing

when Redditt had not fully drawn the gun. He also acknowledged initially telling police after his

arrest that he was not involved in the shooting and did not know Redditt and then telling police

that Williams shot Redditt and Grays when Redditt tried to rob them.

¶ 12 On this evidence, the jury found defendant guilty of first degree murder, attempted first

degree murder, and attempted armed robbery. It found that he personally discharged a firearm

proximately causing death during the murder and great bodily harm during the attempted murder.

¶ 13 B. Sentencing

¶ 14 The presentencing investigation report (PSI) reflected that defendant was born in April

1993 and so was 18 years old at the time of his offenses in November 2011. He had a prior

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conviction for “fleeing and eluding” and a juvenile adjudication for unlawful use of a weapon.

Petitions alleging “abuse/neglect/injurious environments” were filed in 2001 for defendant and his

siblings, and “[t]here was a finding, in 2004, of abuse and neglect and injurious environment.”

However, the PSI also states that defendant “believes these petitions were filed without

foundation” and neither he nor his siblings “were ever abused or neglected.” Defendant did not

complete high school but “enrolled in a GED class” and “said he has recently been taking classes

at the jail.” He denied ever drinking alcohol, using drugs, or being a gang member.

¶ 15 During the July 2014 sentencing hearing, the State noted that defendant could receive a

prison sentence from an aggregate 80 years at the minimum up to natural life in light of the firearm

enhancements. The State presented a victim impact letter from Grays’s sister. While

acknowledging that defendant did not have a lengthy criminal history, the State described the case

as “egregious,” noting that he lured the victims into coming to him and that Grays was shot as he

sat in a car while Redditt was shot as he ran away.

¶ 16 Defense counsel acknowledged the statutory sentencing scheme but objected that it was

“unconscionable.” Counsel noted that defendant had a weapons arrest as a juvenile, which the

court said it would not consider in sentencing, and no prior felony convictions. Counsel noted that

defendant was completing school while in jail, had no gang affiliation, and may have been abused

and neglected as a child.

¶ 17 Before imposing sentence, the court said: “I don’t believe the sentence is unconscionable.

The legislature feels it’s an appropriate sentencing range. They determined that in their opinion

it’s not unconscionable.” The court noted that defendant was a “young guy” of 18 at the time of

the offenses and “still a young guy” of 21 at sentencing but nonetheless responsible for his choices

to shoot Redditt and Grays “over some nonsensical plan of getting some money from Redditt.”

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¶ 18 The court sentenced defendant to consecutive prison terms of 45 years for first degree

murder, 31 years for attempted first degree murder, and 4 years for attempted armed robbery. The

court stated that it read the PSI and that defendant had “basically *** no record.” He was receiving

the minimum sentence but it was “practically speaking a life sentence,” and he would not be

restored to useful citizenship “unless he lives to be a really old man possibly which hopefully he

does.”

¶ 19 Defendant moved for reconsideration of his sentence, claiming that it was excessive in light

of his “background and the nature of his participation in the offense,” that the State failed to prove

his eligibility for extended sentences, and that consecutive sentencing was improper. The court

denied the motion, stating that “[i]t’s a lot of time, but when you do bad things, there are bad

consequences.”

¶ 20 C. Direct Appeal

¶ 21 On direct appeal, defendant contended that his 80-year aggregate sentence was a de facto

life sentence that, as he was only 18 years old at the time of the offenses, violated the eighth

amendment of the United States Constitution (U.S. Const., amend. VIII) and the Illinois

proportionate penalties clause pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and its progeny.

He also contended that trial counsel was ineffective for failing to argue and create a record that his

sentence was unconstitutional. Thomas, 2017 IL App (1st) 142557, ¶¶ 1, 21, 49.

¶ 22 We rejected those contentions and affirmed. Id. ¶¶ 54-55. The parties acknowledged that

defendant would have to serve at least 73 years in prison, so we did not dispute that it was a de facto

life sentence. Id. ¶¶ 25-27. However, we noted that neither the United States Supreme Court nor

our supreme court had applied Miller to adults and that this court had declined to do so. Thus, we

found that defendant’s sentence did not violate the eighth amendment. Id. ¶¶ 26-28.

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¶ 23 As to the proportionate penalties clause, we noted that defendant’s aggregate 80-year

sentence was the minimum sentence mandated by statute for his offenses with the firearm

enhancements and that our supreme court had upheld mandatory firearm enhancements against

proportionate-penalties challenges. Id. ¶¶ 29-32. We acknowledged that another panel of this court

had found the sentence of a 19-year-old defendant unconstitutionally disproportionate in People

v. House, 2015 IL App (1st) 110580. 1 Thomas, 2017 IL App (1st) 142557, ¶¶ 33-34. However, we

distinguished House in that the defendant therein was found guilty on an accountability basis while

the instant defendant was the active shooter who proximately caused the death of one victim and

great bodily harm to another. Id. ¶ 34. We also acknowledged that another panel had found an 18-

year-old defendant’s 76-year sentence disproportionate in People v. Harris, 2016 IL App (1st)

141744, 2 but declined to follow it and explained that decision at length. Thomas, 2017 IL App

(1st) 142557, ¶¶ 37-47.

¶ 24 We found that the trial court considered defendant’s youth and rejected his claim that it

rendered his sentence unconscionable because of his actions in and around the offenses, including

luring the victims to his attack. Id. ¶¶ 35-36. We noted that the legislature adopted a requirement

that specified factors related to youth be considered in sentencing of persons under 18 years old

(730 ILCS 5/5-4.5-105 (West Supp. 2015)) and found that “the legislature has deemed that failure

to take those factors into account does not render a sentence cruel or degrading or so

disproportionate to the offense that it shocks the moral sense of the community.” Thomas, 2017 IL

1
That opinion has since been vacated and reconsidered pursuant to a supervisory order by our
supreme court. People v. House, No. 122134 (Ill. Nov. 28, 2018) (supervisory order). With subsequent
proceedings, the latest opinion in that case is People v. House, 2021 IL 125124, which we shall discuss
below.
2
The supreme court has since affirmed that decision in part and reversed in part, in an opinion we
shall discuss below. People v. Harris, 2018 IL 121932.

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App (1st) 142557, ¶¶ 46-47. We therefore found no proportionate penalties violation in

defendant’s sentence. Id. ¶ 48.

¶ 25 We turned lastly to defendant’s claim that trial counsel was ineffective for not raising these

constitutional claims in the sentencing hearing.

“In essence, defendant contends the trial court would have sentenced him to a term

of less than 80 years had the court been made aware of the precedent that defendant now

presents here. He argues the trial court was in the best position to consider whether the

holdings of Miller and the other cases discussed above should extend to defendants

between the ages of 18 and 21.” Id. ¶ 50.

However, we found that defendant “relies on speculation that, had his counsel explained the Miller

decision in detail at sentencing, the trial court would have ventured below the statutory minimum

sentence” and that, “[d]espite defendant’s repeated assertions to the contrary, those cases do not

address the culpability of an adult defendant. Here, the trial court clearly indicated that defendant

was an 18-year-old offender who was responsible for his acts of shooting two people, one fatally.”

Id. ¶ 52. For instance, defendant cited People v. Miller, 202 Ill. 2d 328 (2002), often called Leon

Miller, but that defendant was 15 years old and found guilty on an accountability basis. Thus, that

defendant was unlike the instant defendant. Thomas, 2017 IL App (1st) 142557, ¶ 53.

¶ 26 Justice Mikva concurred in part and dissented in part, rejecting defendant’s ineffective

assistance claim but explaining at length why she would follow Harris and find that defendant had

a valid proportionate penalties claim. Justice Mikva maintained that the trial court had no

discretion to properly consider the defendant’s youth in imposing the minimum 80-year aggregate

sentence. Id. ¶¶ 57-73 (Mikva, J., concurring in part and dissenting in part).

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¶ 27 D. Petition for Forensic Testing

¶ 28 Defendant filed a pro se petition for forensic testing in June 2018. 725 ILCS 5/116-3 (West

2018). He sought ballistics testing of the recovered firearms evidence. The circuit court denied the

petition in July 2018, and we affirmed on appeal. People v. Thomas, No. 1-18-2013 (2020)

(unpublished summary order under Illinois Supreme Court Rule 23(c)). We noted that defendant

was claiming that testing could show that the fatal bullet did not come from his gun but instead

was fired by Redditt. Id. ¶ 5. He also claimed that his trial counsel was ineffective for declining

the State’s offer to conduct ballistic testing of the recovered bullets. Id. We noted that there was

no evidence that anyone but defendant fired a gun, and defendant acknowledged that he did not

testify to anyone else shooting. Nevertheless, defendant argued that he testified to Redditt having

a firearm and to fleeing Redditt in fear for his life. Id. ¶¶ 2, 5. We found the claims to not be of

arguable merit. Id. ¶¶ 4, 6.

¶ 29 E. Postconviction Proceedings

¶ 30 Defendant filed his pro se postconviction petition in September 2019, claiming in relevant

part that his de facto life sentence violated the proportionate penalties clause because he was a

young adult at the time of the offenses. Relying on our supreme court’s decision in People v.

Harris, 2018 IL 121932, he argued that his claim was appropriate for postconviction proceedings

because the direct appeal record was not developed for an as-applied proportionate penalties

challenge. He argued that the circuit court was not bound to follow this court’s direct appeal

decision because it “prematurely held that de facto life sentence did not violate the Illinois

constitutional rights as applied to” him. Except to state that he was 18 at the time of the offenses,

was a principal offender, and received a de facto life sentence, defendant’s only factual allegation

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was that Dr. James Garbarino of Loyola University Chicago “states that the brain does not mature

until into the mid-20s.”

¶ 31 Defendant filed a pro se supplemental petition in October 2019. In relevant part, he

repeated his claim that, under the supreme court decision in Harris, his as-applied constitutional

challenge to his de facto life sentence required a record developed for the purpose in

postconviction proceedings. The supplemental petition added no factual allegations to that claim.

¶ 32 In December 2019, the circuit court summarily dismissed defendant’s petition. In relevant

part, it found that defendant’s claim was not barred as res judicata because the supreme court

decision in Harris opened the door for an as-applied proportionate penalties claim by a young

adult. The court found that the trial and direct appeal record was not developed for an as-applied

challenge because the information about defendant from the PSI was “basic.” However,

defendant’s petition did not contain any new allegations regarding his youth-related facts and

circumstances. While it is sufficient for a petitioner to allege enough facts to establish an arguable

claim, the court found that defendant failed to do that. Moreover, even if defendant had established

that he was entitled to be treated as a minor or juvenile for sentencing purposes, he would also

have to demonstrate that his sentence was disproportionate. However, under Leon Miller and

People v. House, 2019 IL App (1st) 110580-B, relief under proportionate penalties is available to

defendants found guilty on an accountability basis, the court found. “Illinois courts have repeatedly

rejected Proportionate Penalties challenges by juvenile offenders who were principal offenders

and showed high levels of culpability.” Thus, it concluded, even if defendant was treated as a

minor, he would not receive relief from his sentence under the proportionate penalties clause.

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¶ 33 III. ANALYSIS

¶ 34 Defendant contends on appeal that the summary dismissal of his postconviction petition

was erroneous because he stated at least the gist of a meritorious claim that his de facto life

sentence of 80 years’ imprisonment for offenses committed when he was 18 years old constitutes

an as-applied violation of the proportionate penalties clause.

¶ 35 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a

procedure for persons under criminal sentence to claim their convictions resulted from a substantial

denial of their rights under the federal and state constitutions. A petition thereunder must “clearly

set forth the respects in which petitioner’s constitutional rights were violated.” Id. § 122-2. It may

be summarily dismissed within 90 days of filing and docketing if “the court determines the petition

is frivolous or is patently without merit.” Id. § 122-2.1(a)(2).

¶ 36 A petition is frivolous or patently without merit when it has no arguable basis in law or

fact. People v. Hatter, 2021 IL 125981, ¶ 23. At the first or summary dismissal stage, a petitioner

is required only to include “a limited amount of detail and need not present formal legal arguments

or citations to legal authority.” Id. ¶ 24. A “pro se petitioner is not excused, however, from

providing any factual detail at all surrounding the alleged constitutional violation.” Id. All well-

pled facts in the petition not refuted by the record must be taken as true and liberally construed.

People v. Johnson, 2021 IL 125738, ¶ 25. We review the summary dismissal of a postconviction

petition de novo. Hatter, 2021 IL 125981, ¶ 24.

¶ 37 A. Miller and its Progeny

¶ 38 In Miller, the United States Supreme Court held that a sentence of natural life imprisonment

or life without parole imposed mandatorily upon a person who was a minor at the time of his or

her homicide offense violates the eighth amendment because mitigating factors relating to youth

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could not be considered in imposing the sentence. Miller, 567 U.S. at 489. In People v. Holman,

2017 IL 120655, ¶ 40, our supreme court held that “[l]ife sentences, whether mandatory or

discretionary, for juvenile defendants are disproportionate and violate the eighth amendment,

unless the trial court considers youth and its attendant characteristics.” But see People v. Dorsey,

2021 IL 123010, ¶¶ 41-42 (Holman’s holding that discretionary life sentences for juveniles violate

the eighth amendment “is questionable in light of” Jones v. Mississippi, 593 U.S. ___, 141 S. Ct.

1307 (2021)). In People v. Buffer, 2019 IL 122327, ¶¶ 34-41, our supreme court determined that a

prison sentence longer than 40 years is a de facto life sentence. The Buffer “defendant committed

an offense, at age 16, that subjected him to a legislatively mandated minimum sentence of 45 years

and for which he received a sentence of 50 years. Because defendant’s sentence was greater than

40 years, we conclude that defendant received a de facto life sentence.” Id. ¶ 42.

¶ 39 When a defendant who was a minor at the time of his offenses receives a life sentence,

including a de facto life sentence under Buffer, a reviewing court must determine whether the trial

court “failed to consider defendant’s youth and its attendant characteristics in imposing that

sentence.” Id. Our supreme court has held that Miller mandates that a trial court consider the

defendant’s youth and related characteristics as mitigating circumstances before imposing a life

sentence. Holman, 2017 IL 120655, ¶ 37 (citing Miller, 567 U.S. at 483, 489). A minor defendant

“may be sentenced to life imprisonment without parole, but only if the trial court determines that

the defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable

corruption beyond the possibility of rehabilitation.” Id. ¶ 46. While an express finding of

incorrigibility is not required, “a trial court must consider some variant of the Miller factors before

imposing a life sentence without the possibility of parole.” Id. ¶ 43. Those factors include:

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“(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. ¶ 46 (citing Miller, 567

U.S. at 477-78).

Our inquiry into the Miller factors is strictly retrospective: “the only evidence that matters is

evidence of the defendant’s youth and its attendant characteristics at the time of sentencing.

Whether such evidence exists depends upon the state of the record in each case.” Id. ¶ 47.

¶ 40 B. Harris and Young Adults

¶ 41 In Harris, 2018 IL 121932, ¶ 53, our supreme court rejected a contention “that the eighth

amendment protection for juveniles recognized in Miller should be extended to all young adults

under the age of 21.” The Harris court noted that the United States “Supreme Court has never

extended its reasoning to young adults age 18 or over. Rather, the Supreme Court defined juveniles

as individuals under the age of 18.” Id. ¶ 56. Noting that various courts including this court had

rejected the aforesaid contention, the Harris court concluded:

“We agree with those decisions and our appellate court that, for sentencing purposes, the

age of 18 marks the present line between juveniles and adults. As an 18-year-old, defendant

falls on the adult side of that line. Accordingly, defendant’s facial challenge to his

aggregate sentence under the eighth amendment necessarily fails.” Id. ¶ 61.

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¶ 42 The Harris court refrained from addressing a young adult’s proportionate penalties

challenge—that his “sentence is so wholly disproportionate to his offenses that it shocks the moral

sense of the community” (id. ¶ 35)—finding that such a “claim is an as-applied challenge.

Defendant contends that, as applied to his specific circumstances, the sentencing statutes resulting

in a mandatory aggregate sentence of 76 years’ imprisonment violate the Illinois Constitution.” Id.

¶ 37. An as-applied challenge requires a showing that a statute is unconstitutional as applied to the

defendant’s specific circumstances, while a facial challenge requires that the defendant establish

the statute to be unconstitutional under any possible set of facts. Id. ¶ 38. However, as the Harris

defendant raised his claim on direct appeal, there was no evidentiary hearing or other circuit court

record suitable for an as-applied proportionate penalties claim. Id. ¶ 40. Noting that Holman

provided for an inquiry into a defendant’s sentencing, Harris distinguished Holman, where

“[t]he critical determinations were purely legal issues: deciding whether Miller also applied

to discretionary life sentences for juveniles and defining the Miller factors to be considered

in sentencing. [Citation.] The only other issue was determining from the ‘cold record’

whether the trial court adequately considered the Miller factors at the original sentencing

hearing. [Citation.] Thus, the evidentiary record was sufficient to address the issues raised

in Holman.

In contrast, defendant in this case was 18 years old at the time of his offenses.

Because defendant was an adult, Miller does not apply directly to his circumstances. The

record must be developed sufficiently to address defendant’s claim that Miller applies to

his particular circumstances.” Id. ¶¶ 44-45.

¶ 43 The Harris defendant contended that the trial record included “sufficient information about

his personal history to determine whether the evolving science on juvenile maturity and brain

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development applies to him.” Id. ¶ 46. The supreme court rejected that contention, stating that the

“record, however, includes only basic information about defendant, primarily from the presentence

investigation report,” so that it did “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. The Harris court did not remand for an

evidentiary hearing because the defendant’s as-applied proportionate penalties claim could be

raised in a collateral proceeding, such as a postconviction petition where facts not on the existing

record are entered into evidence. Id. ¶ 48.

¶ 44 In People v. House, 2021 IL 125124, ¶¶ 5-8, a defendant who was 19 at the time of his

offenses raised an as-applied proportionate penalties claim to his consecutive prison sentences of

life and 60 years, and the circuit court dismissed his postconviction petition. The defendant “did

not provide or cite any evidence relating to how the evolving science on juvenile maturity and

brain development applies to his specific facts and circumstances.” Id. ¶ 29. However, on appeal,

the parties agreed to a remand for further postconviction proceedings to give the defendant “the

opportunity to consult with counsel about his constitutional claims and to develop and present

evidence to the trial court *** demonstrating how the evolving science on juvenile maturity and

brain development applies to an emerging adult and to the petitioner’s specific circumstances” (id.

¶ 22). Instead, this court found that the sentence violated the proportionate penalties clause as

applied to the defendant and remanded for resentencing. Id. ¶ 23. Our supreme court found that

doing so “without a developed evidentiary record or factual findings on the as-applied

constitutional challenge” was reversible error. Id. ¶ 31. The supreme court’s “analysis in Harris

focused on development of the record in the trial court, not whether the challenge is raised in a

collateral proceeding or on appeal, or whether the petitioner was a principal rather than an

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accomplice in the crime.” Id. The supreme court in House remanded for further postconviction

proceedings. Id. ¶ 32.

¶ 45 In a case where a defendant who was 18 at the time of his offenses challenged his life

sentence upon a negotiated guilty plea, People v. Daniels, 2020 IL App (1st) 171738, ¶¶ 1-2, this

court stated that “it is premature at this juncture to conclude that the only way a defendant can

establish cause and prejudice for the filing of a successive petition asserting an as-applied, youth-

based sentencing claim is by demonstrating that the facts of his or her case align with those in

House.” (Emphasis in original.) Id. ¶ 31. In other words, the degree of participation in the offense

is a relevant consideration but should not by itself be dispositive. Id. ¶ 32. “In Harris, our supreme

court clearly envisioned an evidence-based factual inquiry when it declined to consider such a

claim on direct appeal where the record included ‘only basic information about [the] defendant,

primarily from the presentence investigation report.’ ” Id. ¶ 31 (quoting Harris, 2018 IL 121932,

¶ 46). The Daniels defendant showed cause for his petition to proceed because the cases he relied

upon for his claim did not exist when he pled, and showed prejudice as he “directed this court’s

attention to at least some contemporaneous documentation regarding his mental health and

personal characteristics that he might use to support such a claim.” Id. ¶ 34.

¶ 46 This court affirmed the denial of leave to file a pro se successive postconviction petition

by a defendant who was 18 at the time of his offense; whose trial, direct appeal, and initial

postconviction petition preceded Miller; and whose petition challenged his 100-year sentence as

unconstitutional. People v. Evans, 2021 IL App (1st) 172809, ¶¶ 1-9. “Young adult offenders are

not entitled to the presumption that the tenets of Miller apply to them pursuant to the proportionate

penalties clause. [Citation.] Indeed, they must establish a record to support their argument ***.”

(Emphases in original.) Id. ¶ 19.

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“In order for a young adult offender to receive sentencing protections pursuant to the

proportionate penalties clause of the Illinois Constitution, which would be the appropriate

path of relief for the defendant in this case, he must plead and ultimately prove that his

specific and individual characteristics require the application of Miller. [Citation.]

Although at the pleading stage the defendant is not required to prove anything, he still

needs to plead some facts justifying further proceedings.” (Emphases in original.) Id.

However, “other than alleging that he was 18 years old when he committed his offense and was

sentenced to 100 years’ imprisonment, the defendant’s petition failed to set forth any individual

characteristics that would require the trial court to apply the sentencing protections set forth in

Miller.” (Emphasis in original.) Id. ¶ 20.

“Although, the law has undoubtedly continued to trend in the direction of increased

protections for young adult offenders, with postconviction proceedings being the proper

vehicle for them to seek such protections, they must still plead specific and individual

characteristics as related to them. This is the only way to establish that they are entitled to

the protections provided by Miller and its progeny as interpreted by the Illinois Supreme

Court. Having failed to allege such facts showing that the tenets of Miller should apply to

his particular circumstances, the defendant’s petition does not support an as-applied

challenge to his sentence under the proportionate penalties clause of the Illinois

Constitution.” (Emphasis in original.) Id. ¶ 21.

¶ 47 This court also affirmed the denial of leave to file a successive petition in various other

cases. In People v. White, 2020 IL App (5th) 170345, ¶ 24, it found that “[o]ther than generally

asserting studies that show that sometimes youthfulness can extend into a person’s twenties, the

defendant does not now allege how he was particularly affected by any immaturity.” In People v.

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Moore, 2020 IL App (4th) 190528, ¶ 40, appeal allowed, No. 126461 (Ill. Nov. 24, 2021), this

court found that the defendant generally asserted that a 19-year-old’s brain is more similar to a 17-

year-old adolescent’s brain than to a fully mature adult’s brain and the fact that the present offense

was his first adult conviction. However, “defendant’s motion failed to provide any evidence to

indicate how his own immaturity or individual circumstances would provide a compelling reason

to allow” a successive petition. In People v. Carrion, 2020 IL App (1st) 171001, ¶ 38, this court

stated that “other than generally asserting studies show that sometimes youthfulness can extend

into a person’s late teens and early twenties, defendant does not now allege how he was particularly

affected by any immaturity or special circumstances that would provide a compelling reason to

advance his successive postconviction petition.” Moreover, “[h]e has not raised any facts on appeal

or in his petition that were not already included in the record, presented at his sentencing hearing,

and considered by the trial court.” Id. In People v. Howard, 2021 IL App (2d) 190695, ¶ 46, the

defendant “made bare assertions that his age and background were not considered by the trial

court.”

¶ 48 Conversely, this court has reversed denials of leave to file successive petitions in various

cases as well. In People v. Ruiz, 2020 IL App (1st) 163145, ¶¶ 54-55, this court acknowledged

that, “[a]s Harris instructs, young adult defendants are not entitled to make an as-applied challenge

to their sentences under Miller unless they first show that Miller applies to them” and that “the

petition and accompanying documents also must be enough to justify further proceedings.” That

said, the Ruiz court reversed where the

“petition, in detailed, well-cited legal argument, sets out why the protections in Miller, and

in the Illinois cases applying it, should benefit young adults. Ruiz cited ‘recent research

and articles’ showing that the brain does not fully develop until the mid-20s, claiming that

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‘young adults as Ruiz was at 18 years old are more like adolescents than fully mature

adults.’ Ruiz claimed that he too was ‘largely unsettled in [his] characters and habits and

this must be taken into consideration’ during sentencing. He claimed that his sentencing

hearing ‘clearly did not adequately focus on Ruiz[’s] age of 18 and his rehabilitative

potential.’ ” Id. ¶ 56.

In People v. Horshaw, 2021 IL App (1st) 182047, ¶ 150 (quoting Carrion, 2020 IL App (1st)

171001, ¶ 38), the motion

“was not a ‘flat allegation as to evolving science on juvenile maturity and brain

development’ [citation] but sufficiently alleged that defendant could establish the existence

of facts personal to him that warranted consideration of the Miller factors in fashioning an

appropriate sentence and that the failure to do so made his 66-year sentence

unconstitutional as applied to him under the proportionate penalties clause.”

In People v. Glinsey, 2021 IL App (1st) 191145, ¶ 50, the defendant “was a mere 11 days past his

eighteenth birthday,” he “was not the main ‘motivating’ actor behind this offense,” he “was a

member of a gang since age 12 and, thereby, potentially subject to its peer pressure,” and “the

sentencing court’s remarks do not indicate any consideration of defendant’s age or any age-related

factors.”

¶ 49 Turning from successive petitions to initial postconviction petitions as in the instant case,

this court has reversed the dismissal of a petition raising a young adult as-applied proportionate

penalties claim where the defendant’s “petition and the attachments supporting it make a

connection between the applicable science and his own characteristics as a 19-year-old offender.”

People v. Wilson, 2022 IL App (1st) 192048, ¶ 89. Similarly, this court reversed the summary

dismissal of such a claim where the petition provided “facts that can be corroborated, are objective

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No. 1-20-0164

in nature, and bear directly on the Supreme Court’s observation in Miller that a hallmark of youth

is the lack of a fully formed character—traits that are not fixed and a corresponding capacity for

meaningful rehabilitation.” People v. Zumot, 2021 IL App (1st) 191743, ¶ 31. Quoting a paragraph

in the petition where the defendant listed in detail his rehabilitative efforts in prison and expressly

connected “his own particular circumstances and studies showing that young adults are more like

juveniles than fully mature adults,” this court found that “Zumot drew exactly that connection in

[that] paragraph from his petition.” Id. The Zumot court found that “the trial court record also

supports his claim that he was the equivalent of a juvenile because he had rehabilitative potential

that was constitutionally incompatible with the imposition of a life sentence,” such as the trial

court at sentencing expressly referring to the defendant’s offenses as impulsive and “acting out”

and the defendant as immature and expressly stating that he did not deserve a life sentence. Id.

¶ 35. The Zumot court noted that this court generally defers to the trial court’s sentencing decision

because it has the superior opportunity at sentencing to observe the defendant and weigh all the

relevant sentencing factors. Id. ¶ 36. Lastly, we affirmed the summary dismissal of the petition in

People v. Haywood, 2021 IL App (1st) 190809, ¶ 43, pet. for leave to appeal pending, No. 127858

(filed Nov. 5, 2021), where the only factual allegations in the petition were refuted by the record

so that the “defendant presented no unrefuted factual allegations in support of his Harris claim.”

(Emphasis in original).

¶ 50 C. This Case

¶ 51 Here, we find that defendant’s petition did not satisfy the requirement of Harris that a

young adult defendant bears the burden of demonstrating that his particular circumstances fall

under Miller, rather than presumptively falling under Miller, as would a minor at the time of the

offense. Defendant alleged in his petition only that a Dr. Garbarino “states that the brain does not

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No. 1-20-0164

mature until into the mid-20s.” That does not address defendant’s particular circumstances. This

case is therefore distinguishable from Wilson and Zumot, where dismissal was inappropriate

because the defendant provided factual allegations in support of his Harris claim. We believe this

case is similar to Haywood in that, once allegations positively refuted by the record in that case

are disregarded, the Haywood defendant and the instant defendant were left with their young-adult

age at the time of their offenses, which under Harris is insufficient by itself to state a claim under

Miller and its progeny.

¶ 52 Defendant acknowledges on appeal that his petition raised no particularized allegations but

contends that the trial record—the PSI in particular—contains such facts. However, in summarily

dismissing defendant’s petition, the circuit court here echoed our supreme court in Harris that

information from the PSI is “basic.” It “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.” Harris, 2018 IL 121932, ¶ 46. Defendant,

as a young adult at the time of his offenses, bore the burden of alleging facts showing that his

particular circumstances fall under Miller and that a sentence imposed on an adult pursuant to the

relevant statutes is nonetheless so disproportionate to the offense that it shocks the moral sense of

the community. See id. ¶¶ 35-36. Pointing to a few basic facts the trial court already knew when it

imposed sentence is insufficient.

¶ 53 Lastly, the trial record here does not contain the support for defendant’s claim that this

court found in the trial record in Zumot. There, the court at sentencing expressly referred to the

defendant’s offenses as impulsive and the defendant as immature and, moreover, expressly stated

that he did not deserve a life sentence. Zumot, 2021 IL App (1st) 191743, ¶ 35. These remarks by

the trial court were powerful support for the Zumot defendant’s claim. Here, by contrast, while the

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trial court at sentencing noted defendant’s youth and that his aggregate sentence was a de facto life

sentence, it expressly rejected his claim that his sentence was unconscionable.

¶ 54 We therefore find no error in the summary dismissal of defendant’s petition.

¶ 55 IV. CONCLUSION

¶ 56 Accordingly, we affirm the judgment of the circuit court.

¶ 57 Affirmed.

¶ 58 JUSTICE MIKVA, dissenting:

¶ 59 I fully agree with the majority that, pursuant to our supreme court’s holding in Harris, Mr.

Thomas will have to overcome the “burden of demonstrating that his particular circumstances fall

under Miller.” Supra ¶ 51. I disagree, however, as to when that burden must be met.

¶ 60 In my view, that inquiry should take place at the second stage of the postconviction process,

where Mr. Thomas, with the assistance of counsel, must make a substantial showing of a

constitutional violation. People v. Cotto, 2016 IL 119006, ¶¶ 27-28; People v. Edwards, 197 Ill.

2d 239, 245-46 (2001). At this first stage of his initial postconviction petition, however, Mr.

Thomas need only “set forth the ‘gist’ of an arguably constitutional claim.” (Emphasis added.)

People v. Patterson, 2018 IL App (1st) 160610, ¶ 15. This is not a high hurdle. As this court has

explained in the past, a petition will fail to overcome this “relatively low factual threshold” only if

it advances “an indisputably meritless legal theory or a fanciful factual allegation.” Id. (quoting

People v. Hodges, 234 Ill. 2d 1, 16 (2009)).

¶ 61 Here, Mr. Thomas’s pro se petition does not advance an “indisputably meritless legal

theory” and it does not contain fanciful factual allegations. While it is true that Mr. Thomas did

not explain in any significant detail how his individual characteristics at the time he committed his

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crime support the applicability of Miller, this failure to connect-the-dots is understandable,

considering that he is a prisoner with no legal training and extremely limited resources. Further,

as his reply brief explains, while he did not assert “individual characteristics,” he did “cite caselaw

that expressed recognition of scientific findings establishing that a young person’s neurological

development does not stop once he reaches the age of 18, but continues well into the 20s.”

¶ 62 The majority concludes that this is not enough, that “flat allegation[s]” of evolving science

on juvenile brain development are insufficient to warrant access to the postconviction process. But

both cases it cites in support of this proposition (People v. Moore, 2020 IL App (4th) 190528, ¶ 40,

and People v. Carrion, 2020 IL App (1st) 171001, ¶ 24) involved successive petitions, not initial

petitions like this one. That is a different analysis. As our supreme court has made clear, “the

cause-and-prejudice test for a successive petition involves a higher standard than the first-stage

frivolous or patently without merit standard.” (Emphasis added.) People v. Smith, 2014 IL

115946, ¶ 35. Here, the majority appears to be applying that “higher standard” to an initial

postconviction petition.

¶ 63 The majority cites a single case where we affirmed the summary dismissal of an initial

petition, People v. Haywood, 2021 IL App (1st) 190809, ¶ 43. That case was different. First, in

that case, the pro se petition did not directly allege any claim that the defendant was the equivalent

of a juvenile. Id. ¶ 42. Rather, we construed his petition liberally to discern that claim. Id. Also,

our decision in that case was based on the fact that the two factual allegations the defendant argued

supported his Harris claim—his lack of prior convictions and his relative culpability—were both

“amply refute[d]” by the record. Id. ¶ 43. In contrast, Mr. Thomas made it clear in his petition that

he was attempting to make a Harris claim, and nothing he has offered or argued in support of that

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claim is refuted by the record. Our decision in Haywood does not support what the majority does

here.

¶ 64 An underdeveloped claim is not the same as a frivolous or meritless claim. In my view,

Mr. Thomas’s claim is the former, not the latter. For that reason, he should be allowed to proceed

to the second stage where, with the assistance of counsel, he will have the chance to develop a

record, substantiate his argument, and attempt to overcome the burden that I agree with the

majority is his to meet. I respectfully dissent.

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No. 1-20-0164

Cite as: People v. Thomas, 2022 IL App (1st) 200164

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 12-CR-485;
the Hon. Stanley J. Sacks, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Robert N. Markfield, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Matthew Connors, and Zachary M. Slavens, Assistant
Appellee: State’s Attorneys, of counsel), for the People.

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