People v. Gray

2022 IL App (1st) 162699-U

No. 1-16-2699

Order filed June 30, 2022.

Second Division

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 DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 93 CR 21971
)
MARCOS GRAY, ) The Honorable
) Maura Slattery-Boyle,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment.

ORDER

¶1 Held: This court affirms the judgment of the circuit court denying defendant leave to
file his successive petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
(West 2016)) because he failed to establish cause and prejudice.

¶2 Following a jury trial, defendant Marcos Gray was found guilty of committing first

degree murder and armed robbery in 1993 at age 16. He was then sentenced to a total of 55 years

in prison. Defendant appeals from the denial of leave to file his pro se successive petition under
No. 1-16-2699

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)), contending his

sentence constitutes a de facto life sentence in violation of the eighth amendment’s ban on cruel

and unusual punishments (U.S. Const., amend. VIII) and Illinois’ proportionate penalties

provision (Ill. Const. 1970, art. I, § 11). We affirm.

¶3 BACKGROUND

¶4 The evidence at trial established that in March 1993, defendant drove up next to a car full

of mostly women and children, jumped out while armed, and shot the driver dead, stating,

“There, m____ f_____.” Defendant also committed an armed robbery of a man situated right

behind the vehicle. Other crimes evidence introduced at trial showed that about 15 minutes

beforehand and just blocks away, defendant had robbed another man at gunpoint. Defendant

admitted to the crimes, although claimed the shooting was accidental.

¶5 An extensive sentencing hearing followed, which we summarize as follows. In

aggravation, the State presented a victim impact statement from the deceased’s mother. The State

also presented evidence showing that just months after the above-stated incidents, in May 1993,

defendant shot a man in the shoulder and hand. In July 1993, defendant admittedly participated

in murdering a woman who was later found in her car trunk with a gunshot wound to her head, a

crime for which defendant was indicted.1 In August 1993, he also pushed a 7-year-old child off

his bike in the presence of the child’s grandfather, then threatened to kill the family. In

mitigation, defendant’s mother testified that his father physically abused her, had drinking

problems, and would also hit defendant, although in his presentence investigation report (PSI),

1
Following a jury trial for that offense, defendant was convicted in 2000 of first degree murder
and attempted armed robbery, then sentenced to a mandatory term of life imprisonment, to be served
concurrently with a 15-year term. See People v. Gray, 2013 IL App (1st) 101064, ¶¶ 1, 3. Later, and
pursuant to a supervisory order from our supreme court, this court remanded the cause for a new
sentencing hearing in light of Miller v. Alabama, 567 U.S. 460 (2012), and its progeny. See People v.
Gray, 2015 IL App (1st) 112572-B, ¶ 9.

2
No. 1-16-2699

defendant denied any abuse. Defendant was frequently hospitalized for his asthma and missed

school. His mother later divorced the father and worked two jobs, so she was unable to supervise

her household, which included 10 children. Around age 16, defendant had friends she did not

approve of, and he began drinking to the point of injuring himself, requiring stitches.

Defendant’s sister also testified briefly in mitigation, noting that defendant’s friend Antwon

Tyler had defendant sell drugs and bought him alcohol. Prior to this period, defendant went to

school, did his work, was quiet, and had no serious problems at home. The defense also

submitted documents showing defendant’s coursework towards his GED while incarcerated.

¶6 The State argued defendant was evil and beyond rehabilitation. The defense pointed to

defendant’s background and abusive home life, emphasizing multiple times his young age of 16,

his lack of prior criminality, and his substance abuse problems. The defense also argued

defendant was adversely influenced by Tyler, who was several years older and the codefendant

in the defendant’s other murder case. See People v. Gray, 2013 IL App (1st) 101064. In

allocution, defendant apologized that a person was killed but stated the jury and the State’s

witnesses were mistaken.

¶7 Following this, the court rejected the State’s assertion that the trial evidence established

defendant’s crimes were committed with “exceptionally brutal or heinous behavior indicative of

wanton cruelty,” reasoning that the facts of the case, defendant’s age, and lack of criminal

history did not warrant such a finding. The court thus declined to impose a natural life sentence.

¶8 Instead, in its discretion, the court imposed a 55-year sentence for murder and a

concurrent 30-year term for armed robbery for what was the beginning of an apparent “crime

wave.” The court observed “there’s nothing we can do to bring that victim back *** or to restore

life once it has been taken away and it’s egregious. And that’s one of the hardest duties that a

3
No. 1-16-2699

judge has is to distinguish between one murder and another and that is why we have presentence

reports. That is why we have the parties give evidence in aggravation and mitigation to assist the

Court in arriving at what we hope will be a just determination.” The court noted the senseless

nature of the crime and defendant’s reckless disregard for the victims, including the children in

the car. The court noted defendant was “fearless and we don’t know what brought him to that

point, why he would have acted in that way.” Referencing his background, and after expressly

having read the PSI, the court noted defendant’s problem with alcohol and drugs might have

contributed to his actions.

¶9 The court continued: “But nevertheless that life was taken and that is something that must

be addressed. The manner in which it was done is something that is so serious and so wanting in

any kind of caution that might have avoided the horrible circumstances that have resulted that we

do feel a very significant sentence is indicated in this case.” The court concluded the 55-year

sentence reflected what it heard in aggravation and mitigation, then stated: “And again we do

also indicate that we do look carefully at the age of the defendant at the time, the fact that others

were involved who were apparently significantly older and that the defendant has no significant

criminal history before this event. So that is the sentence that the Court will impose. That is five

years below the maximum.”

¶ 10 Defendant’s conviction was affirmed on direct appeal, and this court rejected his

subsequent collateral challenges. See People v. Gray, No. 1-95-2932 (1998) (unpublished order

under Illinois Supreme Court Rule 23); People v. Gray, 1-99-1885 (1999) (unpublished order

under Illinois Supreme Court Rule 23); Nos. 1-10-3169 (2012) and 1-12-0032 (2013) (summary

orders).

4
No. 1-16-2699

¶ 11 In 2016, defendant filed the present pro se motion for leave to file a successive petition

under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)), arguing

his sentence violated Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory life

without parole for juveniles under 18 at the time of their crimes violates the eighth amendment’s

prohibition against cruel and unusual punishments. He also asserted an equal protection

violation, claiming other juveniles were convicted of murder and given lesser sentences than

imposed in his case. His petition was dismissed, and on November 20, 2018, this court granted

the State Appellate Defender’s leave to withdraw as counsel under Pennsylvania v. Finley, 481

U.S. 551 (1987). See People v. Gray, No. 1-16-2699 (2018) (summary order).

¶ 12 In 2020, the Supreme Court nevertheless issued a supervisory order (No. 124384)

directing this court to reconsider defendant’s case (No. 1-16-2699) in light of People v. Buffer,

2019 IL 122327, ¶ 27, which declared that Miller and its progeny apply to defendants who

committed offenses as juveniles and were sentenced to life, whether mandatory or discretionary,

natural or de facto, and whose sentencing court failed to consider their youth and its attendant

characteristics when imposing the sentence. See also People v. Carrion, 2020 IL App (1st)

171001, ¶ 26. Notably, Buffer held that a prison sentence of over 40 years imposed on a juvenile

offender constitutes a de facto life sentence in violation of the eighth amendment. Id. ¶ 41.

¶ 13 ANALYSIS

¶ 14 The Act provides a procedural mechanism through which a criminal defendant can assert

that his federal or state constitutional rights were substantially violated in his original trial or

sentencing hearing. 725 ILCS 5/122-1(a) (West 2016); People v. Davis, 2014 IL 115595, ¶ 13.

The Act contemplates the filing of only one petition without leave of court, and any claim not

presented in an original or amended petition is waived. Davis, 2014 IL 115595, ¶¶ 13, 14. Leave

5
No. 1-16-2699

of court for initiating a successive postconviction petition is granted only when a defendant

shows cause for his failure to bring the claim in his initial postconviction petition and prejudice

resulting from that failure. 725 ILCS 5/122-1(f) (West 2016); People v. Evans, 2013 IL 113471,

¶ 10. Both elements must be satisfied. Carrion, 2020 IL App (1st) 171001, ¶ 25.

¶ 15 Following the aforementioned supreme court mandate in this case, defendant filed the

instant appeal, arguing that his 55-year sentence constitutes a de facto life sentence in violation

of Miller and its progeny. After the parties filed their briefs, the supreme court issued People v.

Dorsey, 2021 IL 123010, ¶ 64, which held that “a judicially imposed sentence that is more than

40 years but offers day-for-day, good-conduct sentencing credit does not cross the Buffer line if

it offers the opportunity to demonstrate maturity and obtain release with 40 years or less of

incarceration.” The court reasoned that a statutory scheme that “allows for the opportunity of

release short of a de facto life sentence, is at least on par with discretionary parole for a life

sentence, which has specifically been held by the Supreme Court to pass muster under the eighth

amendment.” Id. ¶ 54.

¶ 16 Defendant acknowledges that he is eligible for day-for-day credit, making his sentence

effectively 27.5 years. See 730 ILCS 5/3-6-3(a)(2) (West 1994). In fact, defendant’s projected

parole date is September 27, 2022, when he is age 45. This does not qualify as a de facto life

sentence; Miller and its progeny do not apply. See also People v. Jones, 2021 IL 126432, ¶ 28

(Miller’s additional protections for juvenile offenders apply only when a trial court lacks, or

refuses to use, discretion in sentencing a juvenile offender to a life, or de facto life, sentence);

People v. Ruddock, 2022 IL App (1st) 173023, ¶ 64. Defendant therefore has failed to establish

prejudice for his successive petition. See Dorsey, 2021 IL 123010, ¶ 32 (noting, prejudice is

shown by demonstrating that the claim not raised during the initial proceeding so infected the

6
No. 1-16-2699

trial that the resulting conviction or sentence violated due process); Ruddock, 2022 IL App (1st)

173023, ¶ 66. Indeed, “[l]eave of court to file a successive petition should be denied when it is

clear from a review of the successive petition and supporting documents that the claims raised

fail as a matter of law or are insufficient to justify further proceedings.” Id. ¶ 33.

¶ 17 Defendant nonetheless argues his sentence violates our state proportionate penalties

clause. We note defendant failed to raise this specific issue in his petition. See 725 ILCS 5/122-3

(West 2016) (“Any claim of substantial denial of constitutional rights not raised in the original or

an amended petition is waived”); People v. Jones, 213 Ill. 2d 498, 505 (2004) (noting, a claim

not raised in the postconviction petition itself cannot be raised on appeal). Regardless, Dorsey

made clear that Miller and its progeny do not provide petitioners seeking leave to file successive

petitions with the requisite cause for challenging their sentences on proportionate penalties

grounds. Dorsey, 2021 IL 123010, ¶ 32, 74 (Miller’s unavailability merely deprived the

defendant of “some helpful support” for his state proportionate penalties claim, which is

insufficient cause); see also People v. Peacock, 2022 IL App (1st) 170308-B, ¶ 20, and cases

cited therein; but see People v. Meneses, 2022 IL App (1st) 191247-B, ¶ 22 (reversing the denial

of the juvenile defendant’s successive postconviction petition on proportionate penalties

grounds).

¶ 18 Even that aside, and assuming Miller-type reasoning applied, the trial court considered

the relevant factors, including the mitigating qualities of defendant’s youth, its attendant

characteristics, his background, and the parties’ arguments, before declining an extended term

and instead imposing a discretionary sentence that was wholly proportionate with the senseless

offense for which defendant was found guilty. See People v. Lusby, 2020 IL 124046, ¶¶ 33-35,

52; 730 ILCS 5/5-8-1(a)(1) (West 1994) (murder carries 20 to 60 years); see also Ruddock, 2022

7
No. 1-16-2699

IL App (1st) 173023, ¶ 71 (the juvenile defendant’s 55-year sentence for murder and attempted

murder was not disproportionate to the offense committed, nor did it shock the moral sense of

the community); cf. Jones v. Mississippi, 141 S. Ct. 1307, 1313, 1317-18 (2021) (a separate

factual finding of permanent incorrigibility is not required before a court imposes a life-without-

parole sentence on a murderer under 18). The same trial judge presided over this case from

beginning to end before reaching what it believed was a just sentence. 2 Therefore, defendant also

has failed to show prejudice with respect to his proportionate penalties claim in his successive

petition. See Lusby, 2020 IL 124046, ¶ 52.

¶ 19 CONCLUSION

¶ 20 Defendant has failed to establish the requisite cause and prejudice for leave to file his

postconviction petition. Peacock, 2022 IL App (1st) 170308-B, ¶ 22. We therefore affirm the

circuit court’s judgment denying defendant leave to file the petition.

¶ 21 Affirmed.

2
We note that defendant filed a pretrial motion to suppress, where his juvenile status was
discussed at length.

8