People v. Gomez

2022 IL App (1st) 200317-U
No. 1-20-0317
Second Division
September 13, 2022

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
____________________________________________________________________________

) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 01 C 17920(01)
v. )
)
FERNANDO GOMEZ, ) Honorable
) Mary Margaret Brosnahan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court.
Justices Howse and Lavin concurred in the judgment.

ORDER

¶1 Held: The trial court’s judgment denying defendant leave to file a successive
postconviction petition is affirmed where defendant could not establish the requisite
cause.

¶2 Following a jury trial, defendant-appellant Fernando Gomez was found guilty of first

degree murder and sentenced to 40 years’ imprisonment. Defendant’s conviction and sentence

were affirmed on direct appeal (People v. Gomez, No. 1-04-0190 (2005) (unpublished order under
No. 1-20-0317

Illinois Supreme Court Rule 23)), and the denial of his initial pro se postconviction petition under

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) was also affirmed

(People v. Gomez, Nos. 1-09-2663, 1-10-0849 (2011) (unpublished order under Illinois Supreme

Court Rule 23)). Defendant now appeals from the trial court’s denial of his motion for leave to file

a successive postconviction petition. On appeal, defendant, who was 19 years old at the time of

the underlying offense and was convicted on a theory of accountability, argues that he established

both cause and prejudice for his claims that his 40-year sentence violates the eighth amendment of

the United States Constitution and the proportionate penalties clause of the Illinois Constitution as

applied to him. For the reasons that follow, we affirm.

¶3 I. BACKGROUND

¶4 A complete recitation of the facts and evidence leading to defendant’s conviction and

sentence can be found in this court’s order affirming the trial court’s judgment on direct appeal.

People v. Gomez, No. 1-04-0190 (September 19, 2005) (unpublished order under Illinois Supreme

Court Rule 23). We provide here only those facts necessary to the resolution of this appeal.

¶5 Defendant, along with his co-defendants and fellow Latin Kings gang members, Raul

Ramirez and Joel Villasenor, were charged with first degree murder for the June 17, 2001 shooting

of a Latin Counts gang member, Juan Avalos. 1

¶6 Three days after the shooting, defendant was arrested and taken to the police station, for

questioning. He initially denied involvement, but later admitted to serving as a “lookout” after

detectives informed him that Ramirez and Villasenor had implicated him. Eventually, defendant

1
Ultimately, Ramirez pled guilty to conspiracy to commit murder and was sentenced to 42 months
in prison, and Villasenor pled guilty to conspiracy to commit murder and agreed to testify against defendant
in exchange for a sentence of 7 years in prison.

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gave a videotaped statement to the police in which he stated that on June 16, 2001, he was in a car

with other individuals near 96th Street and Exchange Avenue when Latin Counts gang members

fired at the car, injuring Angelo Perez. The following evening, Villasenor gave defendant a gun to

retaliate against the Latin Counts. However, defendant was unable to go through with the shooting

because he was “drunk and high.” Defendant then gave the gun to Ramirez, who walked towards

the Latin Counts, fired several shots, ultimately killing Avalos. 2

¶7 Defendant’s jury trial began on October 14, 2003. Villasenor testified on behalf of the

State. He first acknowledged that he was currently incarcerated because of his involvement in the

victim’s murder and that he was testifying as part of a plea agreement. He testified that, on June

16, 2001, he was present when Perez was shot by the Latin Counts. Then, on June 17, 2001,

defendant asked him where he could get a gun. Villasenor met with defendant at Villasenor’s

house, and Villasenor gave defendant a gun. Later that evening, defendant called Villasenor and

informed him that someone had been shot near Villasenor’s sister’s house. Villasenor took this to

mean that defendant had shot a Latin Count. On cross-examination, Villasenor admitted that he

provided a gun to defendant and he knew “why he was doing it.”

¶8 Defendant testified on his own behalf. He admitted to speaking to Villasenor on June 17,

2001, but denied asking for a gun. He confirmed that he went to Villasenor’s house that night and

Villasenor gave him a gun. After arriving at the location where the shooting took place, defendant

and Ramirez exited the car and began walking down a gangway. At some point, defendant stopped

because he was “messed up” and “couldn’t go” through with “what [he] had intended to do at

first[,]” namely shoot at the Latin Counts members. According to defendant, Ramirez took the gun

2
Prior to trial, defendant moved to suppress this statement. Following a hearing, the trial court
denied defendant’s motion.

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and continued along the gangway. Defendant turned around and began walking towards the car.

He then heard gunshots and ran to the car. Ramirez also ran back to the car and they left the scene.

He denied telling Villasenor that he had committed the shooting.

¶9 On cross-examination, defendant testified that Villasenor gave defendant the gun so that

defendant could shoot at the Latin Counts and that, when Ramirez took the gun from him, he knew

what Ramirez was going to do. He admitted that it was his idea to shoot a Latin Count and that the

shooting would not have happened without him. On redirect examination, defendant stated that

after exiting the car, he became scared and did not want to give Ramirez the gun.

¶ 10 Ultimately, the jury found defendant guilty of first degree murder. Defendant’s motion for

a new trial was denied.

¶ 11 On December 19, 2003, the trial court held a sentencing hearing. The State requested a

“substantial sentence” in light of defendants gang membership and history of delinquency.

Specifically, the State noted that, as a juvenile, defendant received probation for unlawful use of a

weapon, and while he was on probation for that offense, he was charged with and later convicted

of a gang-related murder for which he received a sentence of four years. After his release,

defendant was charged in the instant case. While on bond in the instant case, defendant was

arrested for possession of a controlled substance. Finally, the State asserted that defendant had

been a member of the Latin Kings since the age of 13.

¶ 12 In mitigation, defense counsel argued that, in regards to the first murder, defendant was

only 14 years old and was not alleged to have been the shooter. Counsel also pointed to defendant’s

failure to follow through with the shooting in the instant case, as well as his cooperation with the

police. Additionally, counsel noted defendant’s young age, the support of his family, his ability to

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maintain employment, and the fact that defendant was no longer an active member of the Latin

Kings. Counsel requested the minimum sentence of 20 years’ imprisonment.

¶ 13 In allocution, defendant stated: “Just I hope everything works out. My blessings go out to

the family. That’s it.”

¶ 14 In issuing its sentence, the trial court stated as follows:

“Mr. Gomez, taking into consideration what the State has presented in aggravation,

what your attorney has presented in mitigation, I’m aware of what the legislature has done

as to what they’re saying good credits are at this time. What they are in the future, I don’t

know what they will be. But I don’t believe it falls into the point of being a minimum

sentence.

Although they’re juvenile offenses, you were charged with having a gun and that

probation was terminated unsatisfactorily with murder that involved the statement where

you were, as the State has pointed out, this is one with retaliation once again between gangs.

It happens much too often on our streets. Usually, it’s some innocent people. In fact, in

your statement, it states three innocent people were shot *** [.]

And then within two months of being released on that murder, you’re now charged

with this murder.

As part of the argument for aggravation as to keep others from doing this, it’s a sign

of what our justice system is. You can’t decide that you’re going to go out, have a few

beers, and find a gun and shoot at somebody. And in this case, kill them.”

The court then sentenced defendant to 40 years’ imprisonment. Defendant’s motion to reconsider

his sentence was denied.

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¶ 15 On direct appeal, defendant argued that the trial court erred in denying his motion to

suppress his videotaped confession, and this court affirmed. Gomez, No. 1-04-0190.

¶ 16 On May 12, 2006, defendant filed an initial pro se petition for postconviction relief,

claiming, inter alia, that his trial counsel was ineffective for failing to investigate and present

mitigating evidence at sentencing, and for failing to object to the prosecutor’s inflammatory

remarks during closing argument. A supplemental petition was filed on February 11, 2009, which

argued that trial counsel was ineffective for not challenging the illegality of defendant’s arrest

based on lack of probable cause and for failing to submit a conspiracy to commit murder jury

instruction. The State filed a motion to dismiss, which the trial court granted. This court affirmed

the dismissal. People v. Gomez, Nos. 1-09-2663, 1-10-0849 (June 30, 2011) (unpublished order

under Illinois Supreme Court Rule 23). Our supreme court denied defendant’s petition for leave to

appeal. People v. Gomez, No. 112842 (Nov. 30, 2011).

¶ 17 On June 3, 2019, defendant filed a motion for leave to file a successive postconviction

petition. Therein, he argued that his 40-year sentence violated the eighth amendment and the

proportionate penalties clause as applied to him because he was 19 years old at the time of the

offense and Illinois only recently acknowledged that young adults could be afforded the same

Miller considerations as juveniles. Attached to his petition were articles advocating for the

expansion of juvenile sentencing rules to emerging adult offenders. On November 21, 2019, the

trial court denied defendant leave to file his June 3, 2019, successive petition because he was not

a juvenile and he did not receive a de facto life sentence. 3

3
The court’s written order solely addresses defendant’s eight amendment argument and does not
expressly address the arguments relating to the proportionate penalties clause.

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¶ 18 On July 25, 2019, defendant filed a motion seeking leave to file a supplemental petition,

asserting an additional claim that the trial court erred by finding him guilty of murder because he

was illegally detained by police for 32 days before a preliminary hearing. 4 On December 19, 2019,

the trial court denied defendant leave to file his July 25, 2019 postconviction petition. 5

¶ 19 This appeal followed.6

¶ 20 II. ANALYSIS

¶ 21 On appeal, defendant solely focuses on those challenges to his sentence that were contained

in the June 3 petition. He contends that the trial court erred in denying him leave to file his

successive postconviction petition, which contained claims of violations of his constitutional rights

under the eighth amendment to the United States Constitution (U.S. Const., amend VIII) and under

the Proportionate Penalties Clause of the Illinois constitution (Ill. Const. 1970, art. I, § 11) as

applied to him. He asserts that his petition demonstrates prima facie cause and prejudice under the

Act such that further proceedings are warranted.

¶ 22 A. Standard of Review

¶ 23 The Act provides a method for a defendant to collaterally attack a conviction by asserting

that it resulted from a “substantial denial” of his constitutional rights. 725 ILCS 5/122-1 (West

2018); People v. Hodges, 234 Ill. 2d 1, 9 (2009). The Act contemplates the filing of only one

petition without leave of court. People v. Lusby, 2020 IL 124046, ¶ 27. Because successive

postconviction petitions undermine the finality of criminal proceedings, the hurdles for these

4
Defendant also filed a petition for relief from judgment pursuant to 735 ILCS 5/2-1401 (West
2018), arguing his 40-year sentence violated the eighth amendment. The trial court denied that petition,
finding it untimely and barred by res judicata.
5
In the order, the court makes clear that it considered defendant’s July 25, 2019, petition to be
separate from his June 3, 2019 petition.
6
On February 27, 2020, this court entered an order allowing defendant’s late notice of appeal.

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petitions “are lowered in very limited circumstances.” People v. Tenner, 206 Ill. 2d 381, 392

(2002).

¶ 24 To satisfy section 122-1 of the Act, the petitioner must demonstrate both cause for his

failure to raise the claim in the initial petition and prejudice from that failure. People v. Smith,

2014 IL 115946, ¶ 33; see also People v. Guerrero, 2012 IL 112020, ¶ 15 (stating that both prongs

must be satisfied for leave of court to be granted). The cause-and-prejudice test is a more difficult

standard to satisfy than that required at the first stage for an initial postconviction petition (Smith

at ¶ 35), To show cause, the petitioner must identify an objective factor that impeded his ability

to raise a specific claim during his initial postconviction proceedings. 725 ILCS 5/122-1(f) (West

2018). To show prejudice, the petitioner must demonstrate that the claim not raised during his

initial postconviction proceedings so infected the resulting conviction or sentence that it violated

due process. Id. It is the petitioner’s burden to establish a prima facie showing of cause and

prejudice before any further proceedings on his claims can occur. People v. Bailey, 2017 IL

121450, ¶ 24; Smith, 2014 IL 115946, ¶ 30.

¶ 25 Finally, “leave of court to file a successive postconviction petition should be denied when

it is clear, from a review of the successive petition and the documentation submitted by the

petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive

petition with supporting documentation is insufficient to justify further proceedings.” Smith, 2014

IL 115946, ¶ 35. Whether the denial of defendant’s motion for leave to file a successive

postconviction petition was proper is an issue that we review de novo. People v. Edgelston, 396

Ill. App. 3d 514, 518 (2009).

¶ 26 B. Miller-Based Jurisprudence

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¶ 27 Prior to our analysis, we set forth the foundational caselaw upon which defendant’s claims

are based. Defendant’s as-applied constitutional challenge is rooted in a line of cases holding that

the eighth amendment of the United States Constitution, which prohibits cruel and unusual

punishment, affords heightened sentencing protections for juvenile defendants. See Roper v.

Simmons, 543 U.S. 551, 574-75 (2005) (eighth amendment prohibits the death penalty for juveniles

who commit murder); Graham v. Florida, 560 U.S. 48, 82 (2010) (eighth amendment prohibits

mandatory life sentences without parole for juveniles who commit nonhomicide offense); Miller

v. Alabama, 567 U.S. 460, 479 (2012) (eighth amendment prohibits mandatory life without parole

sentences for juvenile offenders convicted of homicide). These cases illustrate the Court’s concern

with the most severe forms of punishment allowed under the Constitution, the death penalty and

life without parole, particularly against children, who are “constitutionally different from adults

for purposes of sentencing” as they are less mature, and more impulsive and vulnerable to peer

pressure than adults. Miller, 460 U.S. at 471-74.

¶ 28 Specifically in Miller, the seminal case, the Court explained that a mandatory sentence

precludes the sentencer from considering mitigating circumstances specific to youth and its

attendant characteristics. Id. at 477-78. Pursuant to Miller, a juvenile defendant may be sentenced

to life imprisonment without parole only if the trial court first determines that the juvenile

defendant’s conduct demonstrated “irretrievable depravity, permanent incorrigibility, or

irreparable corruption beyond the possibility of rehabilitation.”7 People v. Holman, 2017 IL

7
Recently, in Jones v. Mississippi, the U. S. Supreme Court held that sentencing courts are not
constitutionally mandated under the eighth amendment to make a finding of “permanent incorrigibility”
before sentencing a juvenile defendant to life without parole. ___ U.S. ___, ___, 141 S. Ct. 1307, 1318-19
(2021). The Court left to the states’ discretion imposition of any sentencing mechanisms they see fit in
cases involving juvenile defendants convicted of murder, such as, inter alia, prohibiting sentences of life
without parole for juveniles. Id. at ___, 141 S. Ct. at 1323. In Dorsey, our supreme court addressed Jones

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120655, ¶ 46. Miller’s holding is comprised of both a substantive and procedural component. See

Montgomery v. Louisiana, 577 U.S. 190, 206-211 (2016). The substantive component proscribes

a mandatory sentence of life without parole for a juvenile offender. Miller, 567 U.S. at 465.

Miller’s procedural component requires that a sentencer consider certain factors relevant to a

juvenile’s youth and its attendant characteristics prior to imposing a sentence of life imprisonment

without parole. Id. at 469-70. Those factors include but are not limited to the juvenile defendant’s

(1) chronological age at the time of the offense and any evidence of his particular immaturity,

impetuosity, or failure to appreciate risks and consequences; (2) family and home environment;

(3) degree of participation in the homicide and any evidence of familial or peer pressure that may

have affected him; (4) incompetence, including his inability to deal with police officers or

prosecutors and his incapacity to assist his own attorneys; and (5) prospects for rehabilitation.

Holman, 2017 IL 120655, ¶ 46 (citing Miller, 567 U.S. at 477-78). Finally, we note that both the

United States Supreme Court and our supreme court have held that Miller applies retroactively to

cases on collateral review. Montgomery, 577 U.S. at 212; People v. Davis, 2014 IL 115595, ¶ 34.

¶ 29 The decisional law as it relates to juvenile sentencing continues to evolve. Significantly,

our supreme court has expanded Miller’s protections beyond mandatory life sentences. First, in

People v. Holman, the high 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.” 2017 IL 120655, ¶ 40. Thus, a life sentence

need not be mandatory for Miller protections to apply; a discretionary life sentence may also run

afoul of Miller if the sentencer does not consider youth and its attendant characteristics.

only in passing, suggesting, without more, that the holding of Holman in light of Jones is “questionable.”
Dorsey, 2021 IL 123010, ¶ 41.

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¶ 30 Additionally, our supreme court expanded Miller’s reach to apply to juvenile offenders

who receive, not only natural life sentences, but also de facto life sentences (People v. Reyes, 2016

IL 119271, ¶ 9), which the court later defined as a prison term of more than 40 years (People v.

Buffer, 2019 IL 122327, ¶ 40). Specifically, the court in Buffer stated that a prison sentence of 40

years or less “provides some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation” in accordance with Miller. (Internal quotation marks omitted.) 2019

IL 122327, ¶ 41 (citing Miller, 567 U.S. at 479).

¶ 31 With this background and these principles of law in mind, we now turn to defendant’s

petition.

¶ 32 C. Defendant’s Petition

¶ 33 1. Eighth Amendment Challenge

¶ 34 We first address defendant’s claim that his 40-year sentence violates the eighth

amendment’s prohibition against “cruel and unusual punishments.” U.S. Const. Amend. VIII.

Specifically, he argues that the eighth amendment is violated as applied to a youthful offender

older than 18 years old “where, based on science and the defendant’s individual circumstance[,]

he demonstrates that he is sufficiently similar to juveniles such that Miller’s protections should

apply.”

¶ 35 Federal caselaw has unambiguously drawn the line for Miller-based claims under the

eighth amendment at age 18. See Roper, 543 U.S. at 574. This age cutoff of 18 years old has also

been reaffirmed by our supreme court in People v. Harris, 2018 IL 121932, ¶ 61 (finding that “the

age of 18 marks the present line between juveniles and adults and nothing that claims requesting

an extension of Miller to those 18 years old or older have been repeatedly rejected). As such,

defendant’s challenge to his sentence under the eighth amendment and Miller is foreclosed because

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he was 19 years old at the time of the murder. See People v. Franklin, 2020 IL App (1st) 171628,

¶ 49 (“It is well established that offenders who are 18 years and older cannot raise a facial challenge

to their sentences under the eighth amendment and the Miller line of cases.”).

¶ 36 “By now, it’s clear that the categorical findings made by Miller and its progeny under the

federal eighth amendment apply only to juveniles.” People v. Carrion, 2020 IL App (1st) 171001,

¶ 28. Nonetheless, in his reply brief, defendant contends that our supreme court in Harris “did not

categorically foreclose an as-applied challenge for young adults under the [e]ighth

[a]mendment[,]” as opposed to a facial challenge. Specifically, defendant points to the following

statement in Harris: “To the extent that defendant may have intended to raise an as-applied

challenge under the eighth amendment, that claim would fail for the same reason as his challenge

under the Illinois Constitution failed, because no evidentiary hearing was held and no findings of

fact were entered on how Miller applies to him as a young adult.” 2018 IL 121932, ¶ 53.

¶ 37 Defendant reads the language in Harris too broadly. Nothing in Harris, which affirms 18

as the cutoff for eighth amendment claims, can be read to defeat Miller’s age limit requirement.

The clear import of the discussion in Harris is that an as-applied challenge requires an evidentiary

hearing. Further, we know of no case, and defendant does not cite to any from this court or our

supreme court, that has expressly permitted a Miller-based as-applied challenge under the eighth

amendment to proceed where the defendant was not a juvenile. See People v. Savage, 2020 IL App

(1st) 173135, ¶ 61 (“Although defendant raises an as-applied challenge rather than a facial

challenge, Illinois courts typically consider the sentencing claims of young adults under the

proportionate penalties clause rather than the eighth amendment.”). We decline departure from

review of Miller-based as-applied challenges for young adult defendants under the proportionate

penalties clause. See McCullen v. Coakley, 573 U.S. 464, 485 n. 4 (2014) (“[A] plaintiff generally

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cannot prevail on an as-applied challenge without showing that the law has in fact been (or is

sufficiently likely to be) unconstitutionally applied to him.” (Emphasis removed.)). Defendant’s

age serves as a barrier to his Miller-based claim. As such, defendant’s challenge to his sentence

pursuant to the eighth amendment fails as a matter of law.

¶ 38 Additionally, we observe that defendant simply could not satisfy the cause-and-prejudice

test for his eighth amendment claim because he received neither a natural life nor a de facto life

sentence, a prerequisite for a Miller-based claim. See Buffer, 2019 IL 122327, ¶¶ 27, 40 (holding

that only a term of more than 40 years constitutes a de facto life sentence that would trigger the

protections of Miller; see also People v. Thompson, 2022 IL App (1st) 200463, ¶ 38 (holding that,

even if the defendant was considered to be a juvenile, his postconviction sentencing claim cannot

stand because he could obtain release upon serving 40 years of his sentence, which is not a de facto

life sentence).

¶ 39 2. Proportionate Penalties Clause Challenge

¶ 40 Defendant also contends that, based on Miller and its progeny, his 40-year sentence violates

the proportionate penalties clause. In response, the State asserts that (1) defendant has not shown

cause because Miller is not applicable to adult defendants; (2) defendant failed to allege specific

facts necessary to establish prejudice; (3) defendant’s sentence was not mandatory and thus Miller

and its progeny do not apply; (4) defendant did not receive a natural or de facto life sentence; and

(5) defendant’s sentencing hearing was Miller-compliant.

¶ 41 We begin our analysis with a review of Illinois’s proportionate penalties clause. Article I,

section 11 of our constitution provides that “[a]ll penalties shall be determined both according to

the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11. This clause, commonly referred to as the proportionate penalties

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clause, requires balancing the goals of retribution and rehabilitation, which necessitates a careful

consideration of all the factors in aggravation and mitigation. People v. Quintana, 332 Ill. App. 3d

96, 109 (2002). We have held that Illinois’s proportionate penalties clause provides greater

protections against excessive punishment than does the federal constitution’s eighth amendment.

People v. Fernandez, 2014 IL App (1st) 120508, ¶¶ 46, 63; People v. Minniefield, 2020 IL App

(1st) 170541, ¶ 35 (“The purpose of the *** clause is to add a limitation on penalties beyond those

provided by the eighth amendment.”); see also People v. Clemons, 2012 IL 107821, ¶ 40 (the

proportionate-penalties clause “which focuses on the objective of rehabilitation, went beyond the

framers’ understanding of the eighth amendment and is not synonymous with that provision”); but

see People v. Patterson, 2014 IL 115102, ¶ 106 (stating that the proportionate penalties clause is

“co-extensive with the eighth amendment’s cruel and unusual punishment clause”).

¶ 42 Since our supreme court’s decision in People v. Sharpe, 216 Ill. 2d 481, 521 (2005), two

forms of proportionate penalties claims are recognized under the clause. 8 As it stands, a statute

may be deemed unconstitutionally disproportionate if (1) the punishment for the offense is cruel,

degrading, or so wholly disproportionate to the offense as to shock the moral sense of the

community; or (2) identical offenses are given different sentences. Id. at 521. Whether a sentence

shocks the moral sense of the community is determined by considering both objective evidence

and the community’s changing standard of moral decency. People v. Hernandez, 382 Ill. App. 3d

726, 727 (2008).

8
Prior to the court’s decision in Sharpe, three forms of proportionate penalties claims were
available. See People v. Davis, 177 Ill. 2d 495, 503-04 (1997), overruled by Sharpe, 216 Ill. 2d 481. In
Sharpe, the court eliminated one of the three forms, holding that cross-comparison claims were no longer
viable under the Illinois’s proportionate penalties clause. 177 Ill. 2d at 516-21. However, a defendant could
continue to present disproportionality claims either if (1) the punishment for an offense was allegedly cruel
and degrading or (2) identical offenses were given different sentences. Id. at 521.

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¶ 43 In two cases, one involving a direct appeal and the other a section 2-1401 petition, our

supreme court has recognized that young adult offenders may rely on the evolving neuroscience

regarding brain development in juveniles and its correlation to maturity underpinning the Miller

decision to support an as-applied challenge pursuant to the proportionate penalties clause of the

Illinois Constitution. See People v. Thompson, 2015 IL 118151, ¶¶ 43-44 (19-year-old defendant

sentenced to a term of natural life in prison); People v. Harris, 2018 IL 121932, ¶ 48 (18-year-old

defendant sentenced to 76 years in prison). In Thompson and Harris, the court opened the door for

young adult defendants to demonstrate that their own specific characteristics and circumstances

were so like those of a juvenile that the imposition of a life sentence, absent a Miller-compliant

sentencing hearing, would violate the proportionate penalties clause. Additionally, Thompson and

Harris stated that such claims would best be pursued through proceedings under the Act.

Thompson, 2015 IL 118151, ¶¶ 43-44; Harris, 2018 IL 121932, ¶ 48.

¶ 44 Defendant has not previously presented what we might characterize as a general

proportionate penalties claim. Meaning, he has not claimed, simply, that his sentence was cruel

and degrading or that his sentence differed from that of another convicted of an identical offense.

Indeed, such a claim would have been available to him on direct appeal. Here, in seeking

postconviction relief, his proportionate penalties claim is instead cloaked in the rationale

underpinning Miller and the decisional law following, and for that reason, is properly before us.

See Thompson, 2015 IL 11815, ¶¶ 43-44; Harris, 2018 IL 121932, ¶ 48. Thus, we proceed to

consider whether his successive postconviction petition comports with the dictates of the Act.

¶ 45 1. Cause

¶ 46 Pursuant to section 122-1(f) of the Act, leave of court to file a successive postconviction

petition may only be granted if the petitioner first “shows cause by identifying an objective factor

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that impeded his or her ability to raise a specific claim during his or her initial post-conviction

proceedings[.]” 725 ILCS 5/122-1(f) (West 2018). “ ‘[A] showing that the factual or legal basis

for a claim was not reasonably available to counsel *** would constitute cause under this

standard.’ ” (Internal quotation marks omitted.) People v. Pitsonbarger, 205 Ill. 2d 444, 460 (2002)

(quoting Strickler v. Greene, 527 U.S. 263, 283 n. 24 (1999)).

¶ 47 Here, defendant argues that he established cause because his claims are based on recent,

substantive developments in the law and could not have been raised in his first postconviction

petition. He continues that the landmark decisions of Miller, Montgomery, House, and Davis were

not available when he filed his initial petition. Notably, defendant filed his initial postconviction

petition in 2006, several years prior to the issuance of those cases. The State contends that

defendant’s argument fails nonetheless because Miller and its progeny are not applicable to

defendant because he is not a juvenile; thus, those cases are not necessary for defendant’s

proportionate penalties clause claim as set forth in the instant petition.

¶ 48 We first acknowledge that our supreme court in Davis explicitly stated that Miller’s

substantive component constitutes cause because it was not available earlier to counsel. 2014 IL

115595, ¶ 42. However, the substantive rule is only applicable in the context of a juvenile

defendant’s eighth amendment sentencing challenge. See Montgomery, 577 U.S. at 206-211. In

contrast, here, defendant is not a juvenile and we are faced with the propriety of his sentence in

the context of a proportionate penalties clause challenge. As such, neither facet of Miller is directly

applicable to this claim. Even so, the State’s argument would appear to overlook the clear language

in Thompson and Harris, which permits postconviction petitioners to pursue Miller-based claims.

¶ 49 Defendant argues that since Roper, Graham, and Miller were decided, the brain research

on which those cases relied has also evolved to show that the brains of young adults continue to

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develop into their mid-20s. He then posits that “societal judgment on how to sentence emerging

adults has begun to change,” commenting that there is now strong evidence that the brain does not

cease to mature until the early 20s in those relevant parts that govern, inter alia, impulsivity,

judgment, planning, and foresight of consequences.

¶ 50 Although we believe our supreme court’s recent decision in People v. Dorsey, 2021 IL

123010, is dispositive, in addressing defendant’s arguments, we have occasion, and take this

opportunity, to review early caselaw implicitly underpinning the Dorsey court’s comment

regarding cause. We agree with defendant that brain research continues to evolve and may be relied

upon to both explain, as well as to mitigate, some behavioral conduct in juveniles. However, in

light of Illinois’s past treatment of juvenile offenders, we view the impact of such research on

juvenile sentencing differently. In our view, “societal judgment” on how to sentence juveniles and

youthful offenders emerged here in Illinois long before Roper, Graham, and Miller. See People v.

Davis, 2014 IL 115595, ¶ 45 (holding that Illinois law recognized the “special status” of juvenile

offenders before Miller and res judicata therefore barred relitigation of juvenile offender’s

challenge to sentence under the proportionate penalties provision of Illinois Constitution even

though Miller was not decided until 2012). We are particularly mindful of People ex rel. Bradley

v. Superintendent, 148 Ill. 413 (1894), a case decided by our supreme court more than a century

ago. In Bradley, the court considered whether confinement of an 18-year-old and a 20-year-old to

the Illinois State Reformatory for a “term of commitment to be terminated by the board of

managers” of the Reformatory, but not to exceed 20 years, violated the proportionate penalties

clause. Id at 415-420. Although the terms “neuroscience” or “brain research” appear nowhere in

the court’s decision, there was nonetheless a recognition by the court that minors behave

differently than do mature adults and thus warrant different treatment. In affirming the minors’

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sentences, the court stated that “[t]here is in the law of nature, as well as in the law that governs

society, a marked distinction between persons of mature age and those who are minors,—the habits

and characters of the latter are presumably, to a large extent, as yet unformed and unsettled.” Id.

at 423.

¶ 51 A more recent example of “societal judgment” in sentencing juveniles may be found in

People v Leon Miller, 202 Ill. 2d 328 (2002). We recognize that Leon Miller is a direct appeal

involving a minor. We cite it here only for its historical significance as it relates to juvenile

sentencing. In Leon Miller, our supreme court, once again considered the characteristics of

youthful offenders in the context of Illinois’s proportionate penalties clause. In affirming the trial

court’s judgment that the multiple murder sentencing statute was unconstitutional as applied to the

juvenile defendant, the court stated that its decision was consistent “with the longstanding

distinction made in this state between adult and juvenile offenders.” Id. at 341-43. The court noted

that Illinois had led the nation with its policy towards the treatment of juveniles in first forming

the juvenile court, and “traditionally, as a society *** recognized that young defendants have

greater rehabilitative potential.” Id. at 341-42.

¶ 52 Obviously, neither Bradley nor Leon Miller rested on the recent published research on brain

science. In neither case does the court cite to any scientific authority for its stated distinction

between juveniles and adults for sentencing purposes. Yet, the ultimate disposition in both cases

is rooted in that distinction. We acknowledge that sentencing norms continue to change to reflect

findings based on the recent brain research and there is value in understanding the development of

the human brain for purposes of the developing law. As our supreme court noted in Leon Miller, “

‘[t]his distinction may well be taken into consideration by the legislative power in fixing the

punishment for crime, both in determining the method of inflicting punishment and in limiting its

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quantity and duration.’ ” Leon Miller, 202 Ill. 2d at 342 (quoting People ex rel. Bradley, 148 Ill.

at 423). Although illuminating, in light of Bradley, we cannot go so far as to say that until Miller’s

acknowledgment of recent brain science, an age-based proportionate penalties claim was either

unknown or unavailable here in Illinois. Bradley stands as Illinois’s earliest example of our courts’

recognition that minors’ characteristics are distinct from those of mature adults. Thus, defendant’s

argument that he could not have raised his proportionate penalties claim in his first postconviction

petition due to the unavailability of Miller and the cases that followed must fail.

¶ 53 In Dorsey, the juvenile defendant, who was convicted for one count of first degree murder

and two counts of attempted first degree murder committed when he was 14 years old, sought

leave to file a successive postconviction petition. 2021 IL 123010, ¶¶ 4, 5, 19. In the petition, he

argued that his 76-year aggregate sentence violated the eighth amendment and the proportionate

penalties clause. Id. ¶ 24. Before our supreme court, the defendant additionally argued, in the

alternative, that his sentence nonetheless violated the proportionate penalties clause pursuant to

Miller and Illinois’s longstanding recognition of the special status of children. Id. ¶ 68. The court

rejected the defendant’s claim for multiple reasons. The court first determined that the claim was

forfeited where it was not included in his petition and barred by res judicata because he previously

raised a proportionate penalties argument on direct appeal. Id. ¶¶ 70-73. Notwithstanding that

determinative ruling, the court additionally held the defendant could not establish cause for his

failure to raise the claim in his initial postconviction petition. Id. ¶ 74. The court stated that

“Miller’s unavailability prior to 2012 at best deprived [the] defendant of ‘some helpful support’

for his state constitutional claim, which is insufficient to establish ‘cause.’ ” Id.9

9
In People v. Winters, we recognized that our supreme court’s opinion in Dorsey regarding the
cause requirement for successive postconviction petitions could be regarded, not merely as dictum, but

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¶ 54 In rejecting the defendant’s Miller-based claim, the court cited People v. LaPointe, 2018

IL App (2d) 160903, a case out of our sister jurisdiction. Briefly, in LaPointe, the defendant

requested leave to file a successive postconviction petition alleging that his life sentence for

murder violated both the eighth amendment and the proportionate penalties clause. 2018 IL App

(2d) 160903, ¶ 1. Like here, the defendant argued that he established cause because Miller was

issued after he was sentenced and applied retroactively to his case. Id. ¶ 56. The court explained

that the defendant had established cause for his eighth amendment claim because Miller had

created a “new legal right.” Id. ¶¶ 57-58. However, the court continued that his proportionate

penalties claim did not “rest on the new substantive legal rule that Miller created” and thus his

proportionate penalties argument was rejected. Id. The court stated that the clause was “very much

in existence” when his first petition was filed and the defendant had the materials necessary “to

assemble an argument that his sentence was unconstitutionally severe in light of his youth[.]” Id.

¶¶ 55, 57. Additionally, the nonexistence of Miller “merely deprived [the] defendant of some

helpful support” for his claim, which was insufficient to create cause. Id. ¶ 59. The court rejected

the proposition that all caselaw written in support of a new legal rule applies retroactively and

establishes cause for successive postconviction petitions, finding that doing so would result in

severely weakening section 122-1(f) of the Act. Id.

¶ 55 Prior to Dorsey, there had been a clear split of authority on the question of cause with

respect to proportionate penalties claims asserted by young adult defendants. See, e.g., People v.

Franklin, 2020 IL App (1st) 171628, ¶ 46; People v. Minniefield, 2020 IL App (1st) 170541, ¶ 31;

People v. Carrasquillo, 2020 IL App (1st) 180534, ¶ 108; People v. Ross, 2020 IL App (1st)

judicial dictum and that, as such, it must be followed. 2021 IL App (1st) 191625-U, ¶ 51, pet. for leave to
appeal pending, No. 128120 (filed Jan. 27, 2022).

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171202, ¶ 21 (all holding that a defendant, relying on the principles of Miller and its progeny,

establishes cause for filing a successive postconviction petition where those cases had not been

decided at the time the defendant filed his initial postconviction petition); but see LaPointe, 2018

IL App (2d) 160903; People v. Bilski, 2021 IL App (2d) 190779-U, ¶¶ 21-27; People v. Hernandez,

2021 IL App (2d) 190112-U, ¶¶ 45-47; People v. Hoover, 2019 IL App (2d) 170070, ¶ 37 (all of

which hold that Miller and its progeny does not serve as cause to satisfy the cause and prejudice

test).

¶ 56 Dorsey appears to have resolved the split. Over the course of the past year, in nearly every

appellate court district, we have consistently rejected successive postconviction petitions for lack

of cause where the young adult defendant’s claim is based on the proportionate penalties clause.

See People v. Caballero, 2022 IL App (1st) 181747-U, ¶¶ 31-38; People v. Hemphill, 2022 IL App

(1st) 201112, ¶¶ 30-31; People v. Knight, 2022 IL App (1st) 210026-U, ¶¶ 15-17; People v. Knox,

2022 IL App (2d) 200757-U, ¶¶ 19, 22; People v. Torres, 2022 IL App (1st) 201014-U, ¶¶ 18-19;

People v. Harris, 2022 IL App (1st) 200697-U, ¶¶ 33-34; People v. Shaw, 2022 IL App (3d)

200003-U, ¶¶ 32-35; People v. Ruddock, 2022 IL App (1st) 173023, ¶ 72; People v. Winters, 2021

IL App (1st) 191625-U, ¶¶ 44-51; People v. Howard, 2021 IL App (2d) 190695, ¶ 39; People v.

Thompson, 2021 IL App (4th) 200237-U, ¶¶ 35-37; People v. Haines, 2021 IL App (4th) 190612,

¶¶ 44-47; People v. Summers, 2021 IL App (4th) 190891-U, ¶¶ 24-25. Although we are not bound

to follow the holdings of our sister jurisdictions (see O’Casek v. Children’s Home & Aid Society

of Illinois, 229 Ill. 2d 421, 440 (2008)), it is axiomatic that we enjoy no such discretion regarding

decisions rendered by our supreme court (see People v. Artis, 232 Ill.2d 156, 164 (2009)).

Accordingly, pursuant to Dorsey, we hold that defendant cannot establish cause for his Miller-

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based proportionate penalties claim. Having so concluded, we need not address the State’s several

arguments in support of affirmance.

¶ 57 2. Prejudice

¶ 58 Under the Act, a defendant shows prejudice for his successive postconviction petition

where he has demonstrated “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.”

722 ILCS 5/122-1(f) (West 2018). Having determined that defendant cannot satisfy the cause

prong of the cause-and-prejudice test, we need not consider prejudice.

¶ 59 III. CONCLUSION

¶ 60 Because defendant’s petition cannot satisfy the cause-and-prejudice requirement pursuant

to section 122-1(f) of the Act, the trial court’s denial of defendant's motion for leave to file a

successive postconviction petition was proper. See Smith, 2014 IL 115946, ¶ 35. For the reasons

stated, we affirm the judgment of the circuit court.

¶ 61 Affirmed.

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