2022 IL App (2d) 210409-U
No. 2-21-0409
Order filed September 7, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 03 CF 3197
)
CHRISTOPHER ROBINSON, ) Honorable
) Joseph G. McGraw,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Jorgensen and Birkett concurred in the judgment.
ORDER
¶1 Held: The defendant failed to establish cause and prejudice for not raising his claims in
his initial postconviction petition.
¶2 The defendant, Christopher Robinson, appeals from the trial court’s dismissal of his
successive postconviction petition at the second stage under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 et seq. (West 2018)). On appeal, the defendant argues that the trial court erred
in dismissing his petition or, alternatively, that postconviction counsel rendered unreasonable
assistance. We affirm.
¶3 I. BACKGROUND
2022 IL App (2d) 210409-U
¶4 On January 18, 2006, the defendant was charged in a superseding indictment with the first-
degree murder of 13-year-old Shontrelle Graham. The defendant was 18 years old at the time of
the offense. The defendant was alleged to have personally discharged a firearm four times into a
group of four or five teenage boys in retaliation for a prior gang related shooting. Following a jury
trial, the defendant was convicted of first-degree murder and sentenced to 50 years’ imprisonment.
At sentencing, the trial court stated that it had considered the defendant’s lack of criminal history,
his transient and abused childhood, his learning disabilities, and his mental health issues.
¶5 On direct appeal, the defendant argued that he was denied a fair trial by improper comments
made by the prosecutor during rebuttal closing argument. This court affirmed the defendant’s
conviction and sentence. People v. Robinson, No. 2-07-0691 (Apr. 20, 2009) (unpublished order
under Supreme Court Rule 23).
¶6 The defendant later filed a postconviction petition, arguing that he was deprived of the
effective assistance of counsel because his trial counsel failed to seek to suppress his statement to
the police based on his diminished mental capacity. The trial court dismissed the petition as
frivolous and patently without merit. We reversed the trial court’s order and remanded for
additional proceedings. People v. Robinson, 2012 IL App (2d) 100536-U. The defendant filed an
amended postconviction petition that included affidavits and medical records. The trial court
granted the State’s motion to dismiss the amended petition. This court reversed that dismissal and
remanded for a third-stage evidentiary hearing. People v. Robinson, No. 2-17-0561 (Dec. 18,
2019) (unpublished order under Supreme Court Rule 23(c)(2)). This appeal does not stem from
the defendant’s initial postconviction petition as the third-stage hearing had not been held as of the
time of the filing of the notice of appeal in the present case.
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¶7 Rather, on June 24, 2020, after the initial postconviction petition was remanded for a third-
stage evidentiary hearing, postconviction counsel filed a motion for leave to file a successive
postconviction petition. In the successive petition, the defendant noted that he was 18 years old at
the time of the offense and argued that his 50-year sentence was a de facto life sentence that
violated the proportionate penalties clause of the Illinois Constitution. On August 27, 2020, the
trial court granted the motion for leave to file the successive petition, finding that it stated the gist
of a constitutional claim, and advanced the petition for second-stage proceedings.
¶8 On November 6, 2020, the State filed a motion to dismiss the defendant’s successive
postconviction petition. The State argued that, because the defendant was an adult at the time of
the offense, any claim that his sentence violated the eighth amendment based on Miller v. Alabama,
567 U.S. 460 (2012), was without merit. The State also argued that it was well established that
the defendant’s proportionate penalties argument was available pre-Miller and thus Miller could
not be used to establish cause for failing to raise the claim earlier. Thus, the defendant was barred
from raising his proportionate penalties argument in a successive postconviction petition.
¶9 On May 20, 2021, the defendant filed a response to the motion to dismiss, arguing that the
petition demonstrated that the defendant’s sentence violated the proportionate penalties provision
of the Illinois Constitution. The defendant also argued for the first time that, based on the
defendant’s young age, mental health problems, and learning disability, the principles in Miller
should be extended and the trial court should find that his sentence violated the eighth amendment
of the U.S. Constitution.
¶ 10 On June 28, 2021, the trial court granted the State’s motion to dismiss. The trial court
found that the defendant’s petition was untimely, that his claims were barred by the doctrine of
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waiver, and that his sentence did not violate the proportionate penalties clause. The defendant
filed a timely notice of appeal from this order.
¶ 11 II. ANALYSIS
¶ 12 On appeal, the defendant first argues that the trial court erred in dismissing his successive
postconviction petition. The Act allows a defendant to collaterally attack a prior conviction and
sentence where there was a substantial violation of the defendant’s state or federal constitutional
rights. People v. Gosier, 205 Ill. 2d 198, 202-03 (2001). The Act contemplates the filing of only
one postconviction petition. People v. Pitsonbarger, 205 Ill. 2d 444, 456 (2002). As such, a
defendant filing a successive postconviction petition must first obtain leave of court. 725 ILCS
5/122-1(f) (West 2018).
¶ 13 To obtain leave to file a successive postconviction petition, a defendant must show “cause”
and “prejudice.” Id. A failure to establish either prong is fatal to the claim. People v. Smith, 2014
IL 115946, ¶ 37. “[C]ause” is “an objective factor that impeded [the defendant’s] ability to raise
a specific claim during his or her initial post-conviction proceedings.” 725 ILCS 5/122-1(f)(1)
(West 2018). “[P]rejudice” requires a showing that “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.” Id. § 122-1(f)(2).
¶ 14 The cause-and-prejudice test is higher than the standard applied at a first-stage review of a
petitioner’s initial petition. Smith, 2014 IL 115946, ¶ 35. To survive a first-stage review, a petition
needs only to allege a claim with an arguable basis in law or fact. People v. Tate, 2012 IL 112214,
¶ 9. When faced with a motion for leave to file a successive postconviction petition, the court
conducts “a preliminary screening” to determine whether the motion adequately alleges facts that
make a prima facie showing of cause and prejudice. People v. Bailey, 2017 IL 121450, ¶ 24. We
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review de novo a trial court’s decision regarding a motion for leave to file a successive
postconviction petition. Id. ¶ 13.
¶ 15 When the trial court grants a defendant leave to file a successive petition, it is effectively
advanced to the second stage of postconviction proceedings. People v. Johnson, 2019 IL App (1st)
153204, ¶ 32. At the second stage of postconviction proceedings, the State may move to dismiss
a petition pending before the court. 725 ILCS 5/122-5 (West 2018). “Throughout the three-stages
in the postconviction process, the State has the ‘opportunity to seek dismissal of the petition on
any grounds, including the defendant’s failure to prove cause and prejudice for not having raised
the claims in the initial postconviction petition.’” Johnson, 2019 IL App (1st) 153204, ¶ 35
(quoting Bailey, 2017 IL 121450, ¶ 26). A trial court’s second stage dismissal of a defendant’s
postconviction petition is reviewed de novo. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). We
may affirm a trial court’s judgment on any basis supported by the record. People v. Howard, 2021
IL App (2d) 190695, ¶ 21.
¶ 16 The State asserts that the trial court should have denied the defendant’s motion for leave to
file a successive postconviction petition because the defendant failed to demonstrate cause and
prejudice. We note that the trial court granted the defendant’s motion for leave to file his
successive postconviction petition, and advanced the petition to the second stage, without making
any finding that the defendant established cause and prejudice for failing to raise his claim in an
earlier proceeding. Because the State can seek dismissal based on a defendant’s failure to establish
cause and prejudice at any stage in the postconviction process, we will address whether the
defendant established cause and prejudice. See Johnson, 2019 IL App (1st) 153204, ¶ 37.
¶ 17 In the present case, the defendant’s successive postconviction petition raised a claim that
his sentence violated the proportionate penalties clause of the Illinois Constitution. In addition, in
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response to the State’s motion to dismiss, the defendant asserted a claim that his sentence violated
the eighth amendment of the U.S. Constitution. With respect to the latter argument, we note that
the defendant was 18 years old at the time of the offense. The defendant has failed to show that
prejudice resulted from the omission of his eighth amendment claim from his initial postconviction
petition because “Miller simply does not apply to a sentence imposed on one who was at least 18
at the time of his offense.” People v. LaPointe, 2018 IL App (2d) 160903, ¶ 47; see also People
v. Harris, 2018 IL 121932, ¶ 61 (“claims extending Miller to offenders 18 years of age or older
have been repeatedly rejected.”). The failure to establish prejudice is a sufficient basis to deny
leave to file a successive postconviction petition as to the eighth amendment claim. Smith, 2014
IL 115946, ¶ 37.
¶ 18 In arguing that he has established cause and prejudice with respect to his proportionate
penalties claim, the defendant argues that the principles in Miller (decided in 2012) support an as-
applied proportionate-penalties claim and were not available to him in 2010, when he filed his first
postconviction petition. This court has repeatedly rejected this claim. See People v. Howard,
2021 IL App (2d) 190695, ¶ 38 (citing LaPointe, 2018 IL App (2d) 160903, ¶ 55; People v. Hoover,
2019 IL App (2d) 170070, ¶ 37; and People v. Suggs, 2020 IL App (2d) 170632, ¶ 35).
¶ 19 In Howard, the 20-year-old defendant, relying on Miller, sought leave to file a successive
postconviction petition alleging that his discretionary life sentence for first-degree murder violated
the proportionate-penalties clause as applied to him. Howard, 2021 IL App (2d) 190695, ¶ 1. In
rejecting the defendant’s argument, this court explained that the proportionate penalties clause
existed at the time of the Howard defendant’s initial postconviction petition (filed in 1991) and it
was well established that a defendant’s youth was relevant to sentencing. Id. ¶ 38. We further
noted that “the later emergence of additional support for a claim [such as the principles espoused
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in Miller did] not in itself establish cause for failing to bring the claim earlier.” Id. ¶ 39. Thus,
we held in Howard that the defendant failed to show cause for bringing a successive postconviction
petition raising an as-applied proportionate-penalties challenge to his life sentence. Id.
¶ 20 We also held that the Howard defendant could not show prejudice because his argument
was “not of constitutional dimension” and thus could not be raised in a postconviction petition.
Id. ¶ 40. This court explained that the defendant’s argument was not that “his sentence for murder
[was] so disproportionate to the offense as to violate the constitution.” Rather, his position was
“simply that his youth was not adequately considered, which is akin to an abuse of discretion
argument, not a constitutional argument.” Id.
¶ 21 In the present case, the defendant has also failed to establish cause and prejudice for not
including his proportionate penalties claim in his initial postconviction petition. As in Howard,
the defendant cannot establish cause because he could have raised his proportionate penalties claim
in his original postconviction petition. Id. ¶¶ 38-39. Further, the defendant cannot show prejudice
because his argument was not that his sentence was incommensurate with the offense but only that
the trial court failed to adequately consider his youth at sentencing. As in Howard, this is
insufficient to establish prejudice. Id. ¶ 40. Accordingly, as we can affirm on any basis supported
by the record (id. ¶ 21), we affirm the trial court’s dismissal of the defendant’s successive
postconviction petition on the basis that the defendant failed to establish cause and prejudice.
¶ 22 In so ruling, we note that the defendant’s alternative argument raised on appeal is that
postconviction counsel rendered unreasonable assistance in responding to the State’s motion to
dismiss. Specifically, the defendant argues that successive postconviction counsel failed to argue
that his proportionate penalties claim could not have been raised earlier. However, based on
established precedent, any such argument would have been without merit as a matter of law. Id.
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2022 IL App (2d) 210409-U
¶¶ 38-39. Thus, the defendant’s argument that he received unreasonable assistance necessarily
fails. People v. Edgeston, 157 Ill. 2d 201, 234 (1993) (counsel under no duty to make meritless
arguments).
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County
dismissing the defendant’s successive postconviction petition.
¶ 25 Affirmed.
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