2022 IL App (1st) 210588-U
FOURTH DIVISION
Order filed: October 27, 2022
No. 1-21-0588
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 16210
)
GERALD JONES, ) Honorable,
) James Ursula Walowski,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court.
Presiding Justice Lampkin and Justice Martin concurred in the judgment.
ORDER
¶1 Held: We affirmed the circuit court’s denial of the defendant’s petition for leave to file a
successive postconviction petition. Relying upon the supreme court’s decision in
People v. Dorsey, 2021 IL 123010, we found that the defendant’s petition failed to
establish cause for failure to raise in his initial postconviction petition a claim that
his life sentence violated the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970 art. 1, § 11) based on recent caselaw governing the
sentencing of juvenile and young adult offenders.
¶2 The defendant, Gerald Jones, appeals from an order of the circuit court denying him leave
to file a successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2020)). Relying upon cases decided after his initial postconviction petition
No. 1-21-0588
was denied and recent research concerning young adult brain development, the defendant contends
that the trial court erred in denying him leave to file his successive postconviction petition because
he adequately alleged that his sentence of natural life imprisonment for crimes he committed when
he was 20 years old is unconstitutional. 1 For the reasons that follow, we affirm.
¶3 In 1994, following a jury trial, the defendant was found guilty of two counts of first degree
murder and one count of attempted first degree murder. The jury’s verdict was based on evidence
that, in 1993, the then 20-year-old defendant shot three men in the head during a dispute over a
$2000 debt allegedly incurred in the sale of drugs. The defendant told the victims that he could get
the money owed to them if they drove him to a housing project. When they arrived, he shot the
victims in the head while they sat in a car. Two of the victims died. The surviving victim pretended
he was dead and was able to drive away after the defendant left the car. Following the jury’s verdict
and a sentencing hearing, the trial court sentenced the defendant to natural life in prison, finding
that there was “a sufficient mitigating factor” such that the death penalty was not warranted. On
direct appeal, this court affirmed the defendant’s convictions and sentence. See People v. Jones,
No. 1-95-0299 (1996) (unpublished order under Illinois Supreme Court Rule 23).
¶4 In 2008, the defendant filed a pro se petition for postconviction relief contending, inter
alia, that the trial court engaged in improper ex parte communications with the jury during
deliberations. The circuit court appointed an attorney for the defendant, but the defendant asked to
proceed pro se. The circuit court ultimately dismissed the defendant’s petition, and this court
affirmed the dismissal on appeal. See People v. Jones, 2013 IL App (1st) 111247-U.
1
Although the defendant asserted in his pleadings in the circuit court that he was 19 years old on
the date of the offense, the defendant concedes on appeal that the records of the Illinois Department of
Corrections indicate that he was actually 20 years old.
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No. 1-21-0588
¶5 In 2012, the defendant filed a motion to vacate his sentence as void which the circuit court
treated as a petition to vacate pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS
5/2-1401 (West 2012)). The circuit court dismissed the petition, and on appeal, this court vacated
the order and remanded the cause, holding that the circuit court prematurely dismissed the petition,
foregoing the 30–day waiting period required by statute. People v. Jones, 2014 IL App (1st)
130175-U, ¶ 10. On remand, the circuit court again dismissed the petition. No appeal was taken
from that denial.
¶6 In 2015, the defendant filed a petition for habeas corpus, raising the same issues raised in
his postconviction petition. The circuit court dismissed the petition, and on appeal, this court
affirmed after granting defendant’s counsel leave to withdraw pursuant to Finley v. Pennsylvania,
481 U.S. 551 (1987). See People v. Jones, No. 1-16-1007 (2017) (unpublished summary order
under Supreme Court Rule 23).
¶7 On December 28, 2020, the defendant filed a motion for leave to file a successive
postconviction petition. The petition raised numerous allegations of constitutional deprivations,
including an allegation that his mandatory life sentence constituted cruel and unusual punishment
in violation of the eighth amendment of the United States Constitution (U.S. Const. amend. VIII).
The circuit court denied the defendant leave to file a successive postconviction petition.
¶8 The defendant filed a motion to reconsider the denial of leave to file a successive
postconviction petition, arguing that he was seeking relief under People v. House¸ 2019 IL App
(1st) 110580-B, and Miller v. Alabama¸ 567 U.S. 460 (2012). The defendant alleged that “because
[he the] petitioner was 19 [sic] years old, a juvenile or and mental capacity and diagnoses shows
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mild retarded or irretrievably depraved or lack the capacity to think as an adult at the time of the
case.” The circuit court denied the defendant’s motion to reconsider, and this appeal follows.
¶9 Although the defendant raised numerous issues in his proposed successive postconviction
petition, in this appeal he raises no arguments related to his eighth amendment claim, or any of the
claims raised in his petition other than the claim that his sentence violated the proportionate
penalties clause of the Illinois constitution (Ill. Const. 1970 art. 1, § 11). Therefore, those claims
not argued are forfeited and we focus solely on the proportionate penalties claim. See Ill. S. Ct. R.
341(h)(7) (eff. Oct. 1, 2020).
¶ 10 Under the Act, a defendant may raise claims that his conviction or sentence violates the
United States or Illinois Constitutions. People v. Edwards, 2012 IL 111711, ¶ 21; see also People
v. Wimberly, 2022 IL App (1st) 211464, ¶ 5. The language of the Act and the cases interpreting it
make clear that only a single postconviction proceeding is contemplated under the Act. See
Edwards, 2012 IL 111711, ¶ 22. Issues not raised in an initial petition are waived and the bar to
successive petitions is relaxed only where the defendant can establish “cause and prejudice” for
failing to raise the claim earlier or where there has been a “fundamental miscarriage of justice”
based on actual innocence. Id. ¶¶ 21-23; see also People v. Robinson, 2020 IL 123849, ¶ 42. The
defendant must make a prima facie showing of both cause and prejudice. People v. Bailey, 2017
IL 121450, ¶ 24. The Act defines “cause” as “an objective factor 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 2020). The Act states that a defendant shows prejudice by “demonstrating 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. At the leave-to-file stage, a defendant “ ‘is not
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required to make the “substantial showing” that will later be required at a second-stage hearing
after counsel is appointed.’ ” Wimberly, 2022 IL App (1st) 211464, ¶ 5 (quoting People v. Walker,
2022 IL App (1st) 201151, ¶ 20). Instead, “ ‘leave of court to file a successive postconviction
petition should be denied only where it is clear from a review of the petition and attached
documentation that, as a matter of law, the petitioner cannot set forth a colorable claim.’ ” Walker,
2022 IL App (1st) 201151, ¶ 20 (quoting People v. Sanders, 2016 IL 118123, ¶ 24). We review
the denial of leave to file a successive postconviction petition de novo. Robinson 2020 IL 123849,
¶ 39.
¶ 11 In urging reversal of the circuit court’s order denying him leave to file a successive
postconviction petition, the defendant argues that his proposed petition made a prima facie
showing of both cause and prejudice. As to the cause prong of the test, he contends that the legal
basis for his proportionate penalties claim based on Miller and subsequent decisions expanding
the special protections afforded to juvenile and young-adult offenders at sentencing did not exist
when he filed his initial postconviction petition. The defendant points to a number of cases in
which 18-, 19-, and 20-year-old defendants were granted leave to file successive postconviction
petitions raising proportionate penalties claims, each of which was decided before our supreme
court issued its opinion in People v. Dorsey, 2021 IL 123010 (People v. Brewer, 2021 IL App (1st)
172314, People v. Franklin, 2020 IL App (1st) 171628, People v. Bland, 2020 IL App (3d) 170705,
People v. Minniefield, 2020 IL App (1st) 170541, People v. Ruiz, 2020 IL App (1st) 163145,
People v. Johnson, 2020 IL App (1st) 171362).
¶ 12 In Dorsey, the supreme court held that “Miller’s announcement of a new substantive rule
under the eighth amendment does not provide cause for a defendant to raise a claim under the
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No. 1-21-0588
proportionate penalties clause.” Dorsey, 2021 IL 123010, ¶ 74; see also Wimberly, 2022 IL App
(1st) 211464, ¶ 8. In Dorsey, the supreme court explained: “Illinois courts have long recognized
the differences between persons of mature age and those who are minors for purposes of
sentencing. Thus, Miller’s unavailability prior to 2012 at best deprived defendant[s] of ‘some
helpful support’ for [their] state constitutional law claim[s], which is insufficient to establish
‘cause.’ ” Id.
¶ 13 The defendant argues, however, that Dorsey does not apply to his case, relying on the
holdings in People v. Vega, 2022 IL App (1st) 200663-U and People v. Horshaw, 2021 IL App
(1st) 182047, both decided after Dorsey. Although Vega was decided after Dorsey, on the question
of whether the defendant had established cause for failing to raise an as-applied proportion
penalties claim in his initial postconviction petition, the court found that the State had forfeited the
issue by failing to argue it in the body of its brief. Vega, 2022 IL App (1st) 200663-U, ¶ 46. As a
consequence, the Vega court never addressed the supreme court’s reasoning in Dorsey relating to
whether, based on recent caselaw governing the sentencing of juvenile and young adult offenders.
a defendant can establish cause for failing to raise a proportionate penalties claim in his initial
postconviction petition.
¶ 14 In addition to relying on Dorsey to support its argument that the defendant cannot satisfy
the cause prong necessary to obtain leave to file a successive postconviction petition raising a
claim under the proportionate penalties clause based on recent caselaw governing the sentencing
of juvenile and young adult offenders, the State also relies on the post-Dorsey decisions in People
v. Figueroa (Figueroa II), 2022 IL App (1st) 172390-B, and People v. Ruddock, 2022 IL App (1st)
173023, both of which decisions, relying on the reasoning in Dorsey, hold that a defendant cannot
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No. 1-21-0588
establish cause for failing to raise a proportionate penalties claim based on recent caselaw
governing the sentencing of juvenile and young adult offenders in an initial postconviction petition
and affirmed the circuit court’s denial of leave to file a successive petition raising such a claim.
¶ 15 The defendant attempts to distinguish Dorsey based on the fact the defendant in that case
was a juvenile; whereas, he was 20 years old at the time of the commission of the offenses of
which he was convicted. He concedes that, in holding that the defendant in Dorsey failed to
establish cause for not filing his proportionate penalties claim in his initial postconviction petition,
the supreme court found that “Illinois courts have long recognized the differences between persons
of mature age and those who are minors for purposes of sentencing.” He contends, however, that,
because Dorsey was decided in the context of a juvenile defendant, his case presents a different
issue. In support of the argument, he asserts that, unlike juveniles, “the law has not ‘long
recognized’ that young adults are constitutionally different than mature adults for sentencing
purposes.” On that point, we disagree. As the court in People v. Haines, 2021 IL App (4th) 190612,
¶ 47 observed, “Illinois courts also have long been aware that less than mature age can extend into
young adulthood—and they have insisted that sentences take into account that reality of human
development,” citing People v. Maldonado, 240 Ill. App. 3d 470, 485-86 (1992) and People v.
Center, 198 Ill. App. 3d 1025, 1034 (1990).
¶ 16 Horshaw is the only post-Dorsey case of significance relied upon by the defendant in
support of his argument that he satisfied the cause prong of the cause and prejudice requirement
necessary to be granted leave to file a successive postconviction petition. In that case, this court
reversed an order of the circuit denying the defendant leave to file a successive postconviction
petition raising a claim pursuant to the proportionate penalties clause based on recent caselaw
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No. 1-21-0588
governing the sentencing of juvenile and young adult offenders, finding, inter alia, that the
defendant had made a prima facie showing of cause for not raising the claim in his initial
postconviction petition. Horshaw, 2021 IL App (1st) 182047, ¶ ¶ 123-24. However, Horshaw was
decided before Wimberly, 2022 IL App (1st) 211464 and Figueroa II, 2022 IL App (1st) 172390-
B, both post-Dorsey decisions involving the denial of leave to file successive postconviction
petition based on proportionate penalties clause claims by defendants who were young adults at
the time of the commission of the offenses for which they were convicted.
¶ 17 Following the reasoning in Dorsey, this court in Wimberly found that the defendant could
not satisfy the cause prong of the cause and prejudice test and affirmed the circuit court’s denial
of the defendant’s petition for leave to file a successive postconviction petition raising a
proportionate penalties claim based on Miller and subsequent decisions expanding the special
protections afforded to juvenile and young-adult offenders at sentencing. Wimberly, 2022 IL App
(1st) 211464, ¶ 9.
¶ 18 In People v. Figueroa (Figueroa I), 2020 IL App (1st) 172390, this court filed an opinion
reversing the circuit court’s order denying the defendant leave to file a successive postconviction
petition claiming that his sentence is unconstitutional under Miller, because it was imposed without
adequate consideration of his youth and its attendant characteristics. Id. ¶ 1. In addition, we
vacated the defendant’s sentence and remanded the matter for a new sentencing hearing. Id.
However, in response to the State’s petition for leave to appeal Figueroa I, the supreme court
denied the petition but issued a supervisory order (2021 IL 126497), remanding the matter to this
court with instructions to vacate our judgement and reconsider the matter in light of its decision in
Dorsey. On remand, and subsequent to our opinion in Horshaw, this court affirmed the circuit
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court’s order denying the defendant leave to file a successive postconviction petition claiming that
his sentence is unconstitutional under the proportionate penalties clause of the Illinois Constitution,
holding, inter alia, that “Dorsey is entirely dispositive of defendant's claim. Defendant has failed
to satisfy the cause prong of the cause and prejudice test.” Figueroa II, 2022 IL App (1st) 172390-
B, ¶ ¶ 37-42. In Wimberly, this court came to the same conclusion. 2022 IL App (1st) 211464, ¶ 9.
¶ 19 Relying upon the supreme court’s decision in Dorsey, we conclude that the defendant in
this case failed to establish cause for failing to bring his proportionate penalties claim in his initial
postconviction petition. Consequently, we affirm the order of the circuit court denying him leave
to file a successive postconviction petition.
¶ 20 Affirmed.
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