People v. Harris

2022 IL App (1st) 211255-U
No. 1-21-1255
Order filed December 13, 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. 11 CR 3722
)
KYJUANZI HARRIS, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge, presiding.

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

ORDER

¶1 Held: We affirm denial of leave to file a successive postconviction petition. Defendant
does not establish a colorable claim of actual innocence based on a witness’s
affidavit because he does not demonstrate the affidavit is new evidence. He does
not establish cause and prejudice for his claim that his sentence is unconstitutional
based on his youth and background.

¶2 Defendant Kyjuanzi Harris appeals from the circuit court’s order denying him leave to file

a successive petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.

(West 2020)). He argues that he established a colorable claim of actual innocence based on newly
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discovered evidence, namely, a witness’s affidavit averring that the witness observed someone

else commit the murders for which defendant was convicted. He further argues that he established

cause and prejudice for his claim that his mandatory life sentence is unconstitutional because he

was 21 years old at the time of the murders. We affirm.

¶3 Following a 2012 jury trial, defendant was convicted of the first degree murders of Derrick

Armstrong and Bernadette Turner. He was sentenced to two mandatory, concurrent life sentences,

pursuant to section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections (730 ILCS 5/5-8-

1(a)(1)(c)(ii) (West 2008)). We affirmed on direct appeal. People v. Harris, 2016 IL App (1st)

141206-U. As we have provided detailed accounts of the facts in prior orders, we recount the facts

here only as necessary to resolve the issues in the instant appeal.

¶4 At trial, Tamira Smith testified that, on the evening of May 21, 2009, she, Turner, and

Armstrong were parked in a two-door Pontiac Grand Am on the 3000 block of Van Buren Street,

near Horan Park, in Chicago. Armstrong was in the driver’s seat, Turner in the front passenger’s

seat, and Smith in the rear seat behind Turner. There were “a few” people outside.

¶5 Around 9:15 p.m., a black vehicle approached the Grand Am’s passenger’s side. Although

the driver wore a mask or scarf covering his mouth and nose, Smith observed his complexion,

eyes, and dreadlocks from about three feet away for 5 or 10 seconds. She identified him in court

as defendant. He extended a firearm and fired continuously at the Grand Am’s front passenger

window. Smith ducked until he drove away.

¶6 After the shooting, things were “crazy,” and people screamed. Smith was shocked.

Armstrong and Turner had been shot. She pushed Armstrong aside so she could exit, then pulled

him and Turner out of the vehicle. Ambulances arrived and transported Armstrong and Turner to

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the hospital. Smith went to the police station to talk to detectives. She again met with detectives in

November 2010 and February 2011, when she identified defendant in a photo array and an in-

person lineup, respectively.

¶7 Debra Hardy testified that she knew defendant, Armstrong, and Turner, who was like her

goddaughter. Hardy was in Horan Park from around 5 p.m. to around 9:30 p.m. on the day of the

shooting. She initially testified she was a few inches from the Grand Am, but later stated she was

on a bench about 20 feet away. Other people were also in the park, a heavy traffic area. Around

9:30 p.m., she observed defendant drive next to the Grand Am and fire at it. His face was

uncovered. Hardy ran to Turner. When the ambulances arrived, she followed them to the hospital.

Hardy did not go to the police. Detectives eventually located and interviewed her, and she gave

defendant’s name and identified him in a photo array.

¶8 Detective David Roberts testified that he was assigned to the investigation around 10 p.m.

on May 21, 2009. However, he later testified that he arrived at the scene about three minutes after

the shooting, as the ambulances were leaving. There were only a few witnesses present, but Roberts

learned from the first officer who responded that there had been “many people present” when that

officer arrived. Roberts did not interview any witnesses at the scene but interviewed Smith at the

police station that night. Defendant was arrested in February 2011.

¶9 The jury found defendant guilty of first degree murder for the deaths of Turner and

Armstrong.

¶ 10 Defendant’s presentence investigation report (PSI) reflected that he was 21 years old on

the date of the offense. His parents were not together but had provided good homes. His father was

killed in 2003. Defendant denied any past or present gang affiliation, or being diagnosed with a

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psychological, learning, or behavioral disorder. He began drinking alcohol and smoking marijuana

when he was 16 years old. He got drunk twice a week and smoked five or six “blunts” per day. He

was expelled from school during his senior year for being late. He had eight prior nonviolent

convictions, including a 2009 conviction for which he was sentenced to boot camp. Between his

release from boot camp and his arrest in this case 11 months later, he did not drink alcohol or

smoke marijuana. During that time he took ecstasy two or three times a month but stopped when

it caused blood in his urine. He denied that he ever had a substance abuse problem.

¶ 11 At the sentencing hearing, the court noted that it lacked discretion and sentenced defendant

to concurrent terms of life imprisonment without the possibility of parole. Defendant appealed and

we affirmed. People v. Harris, 2016 IL App (1st) 141206-U.

¶ 12 In August 2018, defendant, through counsel, filed a petition for relief under the Act.

Relevant here, he raised a claim of actual innocence based on newly discovered evidence. The

evidence included an unnotarized summary from a private investigator, signed by Hardy, stating

that Hardy told the investigator the police coerced her into falsely testifying that defendant was

the shooter. The real shooter was her nephew, Dennis Glover. The investigator also signed an

unnotarized “affidavit” stating he had obtained a written and recorded statement from Hardy.

Defendant further attached two unnotarized “affidavits” from Donathan Williams which stated

that Glover, also known as “Sacky,” told Williams he killed Armstrong and Turner.

¶ 13 The court docketed the petition and the State moved to dismiss it at the second stage of

proceedings under the Act. Defendant’s counsel filed an amended petition which, inter alia,

reiterated that defendant was actually innocent. Defendant submitted with the amended petition a

notarized affidavit from Hardy averring that her statement to the investigator was true, an audio

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recording of the conversation between Hardy and the investigator, and defendant’s own notarized

affidavit averring that he was unaware of Hardy and Williams’s information until August 2018.1

The State filed a motion to dismiss the amended petition, which the circuit court granted. On

appeal, we affirmed the dismissal. People v. Harris, 2020 IL App (1st) 190690-U. We declined to

consider the content of Hardy and Williams’s statements as they were unnotarized, and concluded

that defendant did not make a substantial showing of actual innocence. Id. at ¶¶ 73-81.

¶ 14 On August 20, 2021, defendant filed the pro se motion for leave to file a successive

postconviction petition at issue in this appeal. He first claimed that he was actually innocent based

on newly discovered evidence in the form of a January 3, 2020, affidavit from Wynton Collins,

which defendant attached.

¶ 15 In the affidavit, Collins averred that, around 9 p.m. on May 21, 2009, he and a woman sat

on the hood of his vehicle on Van Buren Street. A black vehicle drove past him “to the car that

was parked directly in front” of his. The driver of the black vehicle was “Sacky,” whom Collins

knew. Sacky fired 10 or 15 shots at the occupants of the vehicle in front of Collins’s car. Collins

ran to the north side of Van Buren, then west towards Albany Avenue. The woman ran in another

direction and he never saw her again. He hid behind a parked vehicle and Sacky drove past him.

After Sacky left, Collins ran back to his vehicle and saw “the two occupants” of the vehicle in

front of his “looked deceased.” He heard tires screeching, feared Sacky was returning, entered his

vehicle, and drove away. He did not come forward about the murder because he feared for his and

his family’s safety. He was never interviewed by police, an attorney, or an investigator. He later

1
The recording is not included in the record on appeal in the instant case. However, in our order
affirming the circuit court’s dismissal of defendant’s petition, we noted that it was “consistent with [the]
handwritten summary.” People v. Harris, 2020 IL App (1st) 190690-U, ¶ 48.

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met defendant in prison. One day, defendant told Collins why he was imprisoned, and Collins

realized that the wrong person was convicted of Turner and Armstrong’s murders.

¶ 16 Defendant also raised an as-applied constitutional challenge to his mandatory life sentence,

claiming he was an emerging adult at the time of the offenses and his sentence was

disproportionate. He alleged he could not have raised the claim previously because “[t]he law and

the science supporting the law had not been sufficiently developed at that time.” He argued that he

was 21 years old at the time of the offenses with a brain similar to a juvenile’s, possessed

rehabilitative potential, experienced a traumatic childhood, and should be allowed to file a

successive petition so he could develop the record supporting his argument.

¶ 17 In support of his sentencing claim, defendant attached his own affidavit explaining his

background. When he was 1½ or 2 years old, he found a can of mace and sprayed it into his diaper,

burning his skin in “a very traumatic experience.” He was raised in a “rough and violent” housing

project. He was bullied and often fought to protect his younger sisters. When he was nine years

old, his aunt with whom he was very close died of cancer, and he saw his four-year-old sister get

hit by a car. When he was 11 years old, he was struck in the forehead with a baseball bat, which

resulted in stitches and a large knot for which he was bullied and teased, frequently causing him

to enter fights. Two of his best friends were shot and killed around the same time. He began to

smoke PCP-laced cigarettes and marijuana, drink alcohol, and take pills. His father was killed

when defendant was 15 years old. He dropped out of school and started sleeping in abandoned

vehicles and buildings. He was attacked by and recruited into a street gang, as part of which he

sold drugs and stole things. He then lost his best friend in a car accident and another friend to a

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drive-by shooting. However, since his incarceration, he achieved a high school diploma, resolved

to be positive example for his daughter, and gained a mentor, Marvin Bryant.

¶ 18 Defendant attached an affidavit from Bryant averring that he was incarcerated with

defendant and found defendant “decent, kind and respectful,” “ambitious, motivated, resourceful,

trustworthy and eager to learn.” Defendant demonstrated remorse and Bryant requested the court

allow defendant to return to society to parent his daughter and become a productive citizen. Bryant

included a leadership certificate he received from a “Global Leadership Summit.”

¶ 19 Defendant further submitted memorandums from the Illinois Department of Corrections

(IDOC). One noted that IDOC was prioritizing reducing the prison population and providing

meaningful reentry opportunities. The other discussed an incentive-based correctional model. He

also attached a memorandum from a psychology professor and excerpts from articles that argued

offenders aged 18 to 25 should be provided more protections than adults, as research revealed that

human brains do not mature until approximately age 25. The psychology professor’s memorandum

further stated that young people who had experienced violence suffered a “double whammy” of

“the general limitations of unformed brains and the disadvantaged functioning that arises from

their adverse childhood experiences.” (Emphasis omitted.)

¶ 20 Lastly, defendant attached his high school diploma and several of the materials he

submitted with his initial postconviction petition, including the statement of the investigator who

interviewed Hardy.

¶ 21 On August 30, 2021, the circuit court denied defendant leave to file a successive petition.

Regarding his actual innocence claim, the court stated that Collins’s affidavit lacked context and

defendant failed to explain “what the lawyer at trial knew or didn’t know about this witness and

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how they came to come forward now.” Regarding his sentencing claim, the court stated that, at 21

years old, defendant was not a young adult offender.

¶ 22 On appeal, defendant argues the court erred in denying him leave to file a successive

petition. He first contends that, based on Collins’s affidavit, he established a colorable claim of

actual innocence.

¶ 23 The Act provides a statutory remedy where a defendant claims his constitutional rights

were violated at trial. 725 ILCS 5/122-1 et seq. (West 2020); People v. Edwards, 2012 IL 111711,

¶ 21. The Act contemplates the filing of only one postconviction petition. Edwards, 2012 IL

111711, ¶ 22. However, a defendant may file a second or successive petition where he establishes

(1) a fundamental miscarriage of justice because he is actually innocent, or (2) cause and prejudice

for failing to previously raise the claim. Id. ¶¶ 22-23. At the pleading stage, all well-pleaded

allegations in the petition and supporting affidavits are taken as true unless positively rebutted by

the record, and the court is not to make factual or credibility determinations. People v. Robinson,

2020 IL 123849, ¶ 45. We review de novo denials of leave to file successive petitions, whether

they assert actual innocence or cause-and-prejudice. Id. ¶¶ 39-40.

¶ 24 A defendant must support his actual innocence claim with evidence that is (1) new, (2)

material and noncumulative, and (3) of such conclusive character that it would probably change

the result on retrial. People v. Allen, 2015 IL 113135, ¶ 22. Leave to file a petition claiming actual

innocence should be denied “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 of actual

innocence.” People v. Sanders, 2016 IL 118123, ¶ 24.

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¶ 25 Here, the State does not dispute that Collins’s affidavit is material and noncumulative.

Rather, the State argues that the affidavit is not new or conclusive. We agree with the State that

defendant has not shown Collins’s affidavit is new, and we therefore need not determine whether

it is conclusive.

¶ 26 To be new, evidence must have been discovered after trial and “could not have been

discovered earlier through the exercise of due diligence.” People v. Coleman, 2013 IL 113307,

¶ 96. An affidavit is newly discovered where no amount of due diligence could have forced the

witness to testify to those facts at trial. People v. Anderson, 2021 IL App (1st) 200040, ¶ 59; People

v. Fields, 2020 IL App (1st) 151735, ¶ 48. The defendant bears the burden of demonstrating he

exercised due diligence. People v. Walker, 2015 IL App (1st) 130530, ¶ 18. Further, due diligence

“assumes at least some level of deductive reasoning in an active effort to discover evidence based

on the knowledge and information already possessed by the litigants.” (Emphasis and internal

quotation marks omitted.) People v. Barnslater, 373 Ill. App. 3d 512, 526 (2007), abrogation on

other grounds recognized by Robinson, 2020 IL 123849, ¶ 55.

¶ 27 Defendant argues that Collins’s affidavit is newly discovered because Collins fled the

scene of the shooting, was never approached by police, attorneys, or investigators, and did not

come forward with his information about the shooting because he feared for his and his family’s

safety. Defendant thus asserts that there was no way for defendant to know that Collins possessed

exonerating information until he met Collins in prison and Collins realized that defendant, not

Sacky, was convicted of Turner and Armstrong’s murders.

¶ 28 After reviewing the record, we find that Collins’s affidavit cannot be considered new

evidence. Again, to be new, evidence must not have been discoverable before trial through the

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exercise of due diligence (Coleman, 2013 IL 113307, ¶ 96), and it is defendant’s burden to show

due diligence (Walker, 2015 IL App (1st) 130530, ¶ 18). Collins’s affidavit establishes that no one

approached him about the shooting and he did not come forward on his own because he feared

Sacky. However, while Collins’s affidavit may excuse his own failure to come forward sooner, it

does not establish that defendant exercised due diligence in discovering him as a witness. People

v. Wingate, 2015 IL App (5th) 130189, ¶ 27 (affidavit explaining why witness did not come

forward earlier “d[id] not address the question of the due diligence of the defendant in

independently discovering” the witness). Collins does not aver in his affidavit, for example, that

he moved away or otherwise became unavailable as a witness. Cf. People v. Ortiz, 235 Ill. 2d 319,

334 (2009) (witness “essentially made himself unavailable” by moving out-of-state shortly after

witnessing crime).

¶ 29 Here, Walker and Wingate are instructive. In Walker, the defendant claimed actual

innocence based on a statement from a witness, provided 27 years after the crime, that the witness

observed the crime and the defendant was not the perpetrator. Walker, 2015 IL App (1st) 130530,

¶¶ 6, 18. The witness did not allege that he failed to come forward out of fear for repercussion or

explain his 27-year absence or his whereabouts between the crime and the statement, and the

defendant did not explain why the witness had not been previously located. Id. ¶ 18. The majority

found that the witness’s statement was not newly discovered evidence. Id. The dissent argued that

the defendant should not have been expected to find witnesses supporting his actual innocence

claim while he was incarcerated and had no way of knowing the witness observed the crime. Id.

¶ 34 (Pucinski, J., dissenting). The majority countered that it was the defendant’s burden to show

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due diligence, and the statement was not new evidence because he failed to explain why the witness

was not previously located. Id. ¶ 18.

¶ 30 In Wingate, an affiant who was at the scene of a shooting came forward several years later

and averred that one of the people at whom the defendant shot raised a firearm towards the

defendant before the defendant fired. Wingate, 2015 IL App (5th) 130189, ¶ 20. However, the

affidavit contained no facts suggesting that the affiant was positioned such that he could not have

been observed by other people at the scene of the shooting, or facts suggesting the affiant was

unavailable or could not be located after the crime. Id. ¶¶ 27-28. Nor did the postconviction petition

allege any facts regarding whether other witnesses who were interviewed by police failed to tell

the police the affiant was at the scene. Id. ¶ 29. Thus, at the second stage of postconviction

proceedings, we found that the defendant did not allege “any facts that would, if taken as true,

validate the proposition that the defendant exercised due diligence” in attempting to discover the

affiant. (Emphasis in original.) Id. ¶ 30.

¶ 31 The same reasoning applies here. Collins’s affidavit, which we must accept as true

(Robinson, 2020 IL 123849, ¶ 45), establishes that he was sitting on the hood of a vehicle parked

directly behind the Grand Am in which Turner, Armstrong, and Smith sat. When the shooting

began, he ran and hid. As soon as the shooter drove away, Collins returned to his vehicle. He saw

the occupants of the vehicle were dead, entered his own vehicle and drove away. Given his

positioning on the hood of his vehicle directly behind the Grand Am, he would have been visible

to Hardy, who observed the shooting. Smith and Hardy would also have observed him return to

his vehicle and drive away immediately after the shooting. Indeed, as Hardy testified that she had

run to Turner after the shooting and Smith was in the back of the Grand Am during the shooting,

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they would have been in close proximity to Collins when he returned to the vehicle directly behind

the Grand Am and drove away.

¶ 32 However, defendant offers no explanation for his failure to locate Collins. In his reply brief,

he argues that it is “speculative” he could have learned about Collins through Smith or Hardy and

that due diligence does not require him to outperform the police’s investigation, as they also did

not discover Collins. But defendant does not allege in his motion for leave to file, for instance, that

Smith and Hardy failed to tell police that someone sat on the vehicle directly behind the Grand

Am when the shooting occurred or entered that vehicle after the shooting and drove away. Nor

does defendant allege that they mentioned such a person but his attorney and investigators could

not locate him. He does not explain his efforts to identify anyone at the scene. In short, as in

Wingate, he alleges no facts from which we could infer that he exercised due diligence in

attempting to identify and locate Collins. Wingate, 2015 IL App (5th) 130189, ¶ 30.

¶ 33 Moreover, Collins did not aver in his affidavit that he was in any way unavailable or could

not have been located. Thus, Collins’s affidavit cannot be considered new evidence. Coleman,

2013 IL 113307, ¶ 96 (to be new, evidence must not have been discoverable earlier through due

diligence); see also Walker, 2015 IL App (1st) 130530, ¶ 18 (defendant bears burden of showing

due diligence); Wingate, 2015 IL App (5th) 130189, ¶ 27 (affidavit explaining why witness did

not come forward did not address whether the defendant exercised due diligence).

¶ 34 In reaching this conclusion, we are not persuaded by defendant’s reliance on Anderson,

2021 IL App (1st) 200040. There, affidavits were newly discovered for purposes of allowing the

defendant leave to file a successive postconviction petition where the witnesses did not previously

admit to witnessing a shooting, it was “unlikely” that the defendant or others “would have observed

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or noticed them,” and “they insured their anonymity by their immediate flight from the scene.” Id.

¶ 65 (citing Ortiz, 235 Ill. 2d at 334 (witness newly discovered where he did not previously admit

to witnessing crime, “would not have been seen by [the] defendant,” left the area, and moved out-

of-state)).

¶ 35 As discussed, here, it was not “unlikely” that anyone would have noticed Collins at the

scene. He sat on the vehicle directly behind the Grand Am during the shooting. Although he then

ran away, he returned to that vehicle, entered it, and drove away. Smith and Hardy could have

observed him at either point. Anderson is therefore distinguishable.

¶ 36 In sum, where Collins’s affidavit cannot be considered new evidence, defendant failed, as

a matter of law, to make a colorable claim of actual innocence, and the court did not err in denying

him leave to file a successive petition on that basis. Sanders, 2016 IL 118123, ¶ 24.

¶ 37 Defendant next argues that the circuit court erred in denying him leave to file a petition

because he established cause-and-prejudice regarding his claim that his mandatory life sentence is

unconstitutional due to his youth and background at the time of his offense. Defendant argues he

has established cause because the record and law regarding his claim were insufficiently developed

at the time of his direct appeal. He argues that he has established prejudice because his age and

background at the time of the offense rendered him a young adult and the trial court did not

consider appropriate factors when sentencing him. The State argues that defendant has not

established cause or prejudice. 2

2
The State further argues that defendant waived this claim by not raising it in prior proceedings.
However, as defendant correctly notes, the cause-and-prejudice test codified in section 122-1(f) of the Act
(725 ILCS 5/122-1(f) (West 2020)) “is an exception to the statutory waiver rule,” and permits the filing of
a successive petition if the defendant demonstrates cause and prejudice. People v. Walsh, 2022 IL App (1st)
210786, ¶ 20; see also People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002) (“We hold today that the cause-

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¶ 38 A defendant establishes cause where he identifies an objective factor that impeded his

ability to raise a claim during earlier proceedings. 725 ILCS 5/122-1(f) (West 2020). He

establishes prejudice where he demonstrates that the alleged constitutional violation “so infected

the trial that the resulting conviction or sentence violated due process.” Id.

¶ 39 In Miller v. Alabama, 567 U.S. 460 (2012), the United States Supreme Court held that the

prohibition on cruel or unusual punishment in the eighth amendment to the United States

Constitution (U.S. Const., amend. VIII) forbids mandatory life sentences without the possibility

of parole for “those under the age of 18 at the time of their crimes.” Miller, 567 U.S. at 465, 479.

Our supreme court has subsequently held that, where an offender is younger than 18 years old, the

trial court must consider certain factors before imposing a life sentence, including: his age and

evidence of his “particular immaturity”; his family and home environment; his degree of

participation in the homicide and any familial or peer pressure; his incompetence; and, his

rehabilitative potential. People v. Savage, 2020 IL App (1st) 173135, ¶ 58 (citing People v.

Holman, 2017 IL 120655, ¶ 46). Miller applies retroactively to cases on collateral review.

Montgomery v. Louisiana, 577 U.S. 190, 206 (2016).

¶ 40 Defendant was subject to mandatory life imprisonment because he was found guilty of

murdering multiple people. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2008) (when the death penalty is

not imposed, court shall sentence a person who murdered multiple victims to life imprisonment).

He was 21 years old at the time he committed the murders in this case. Twenty-one-year-old

offenders cannot establish prejudice to file a successive postconviction petition raising an eighth

and-prejudice test is the analytical tool that is to be used to determine whether *** a claim raised in a
successive petition may be considered on its merits.”).

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amendment claim as, “ ‘for sentencing purposes, the age of 18 marks the present line between

juveniles and adults.’ ” People v. Montanez, 2022 IL App (1st) 191930, ¶ 52 (quoting People v.

Harris, 2018 IL 121932, ¶ 61). Thus, had defendant raised an eighth amendment claim, that claim

would fail.

¶ 41 Defendant, however, argued his mandatory life sentence violated the Illinois Constitution’s

proportionate penalties clause. The proportionate penalties clause of the Illinois Constitution

provides greater protection than the eighth amendment. People v. Clemons, 2012 IL 107821, ¶ 39.

The clause 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. Our supreme court has indicated that young adult offenders may, through the Act,

establish under Miller that their life sentence is unconstitutional pursuant the proportionate

penalties clause. See Montanez, 2022 IL App (1st) 191930, ¶ 53 (citing Harris, 2018 IL 121932,

¶¶ 40, 45, and People v. Thompson, 2015 IL 118151, ¶ 44). We have further concluded that young

adult offenders may bring successive postconviction claims raising as-applied constitutional

challenges to their sentence under the proportionate penalties clause where they received life

sentences without consideration of the Miller factors. Id. ¶ 54.

¶ 42 Nevertheless, defendant’s proportionate penalties claim fails because, at age 21 when he

committed his offenses, he is not a “young adult offender.” See People v. Humphrey, 2020 IL App

(1st) 172837, ¶¶ 33-34 (holding that “for now[,] individuals who are 21 years or older when they

commit an offense are adults for purposes of a Miller claim,” and collecting statutes differentiating

those who are younger than 21 from those who are 21 or older); see also Montanez, 2022 IL App

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(1st) 191930, ¶ 56 (collecting cases concluding that Miller protections did not extend to offenders

21 years or older).

¶ 43 As defendant notes, this court has in one instance held that a defendant who was 21 years

or older may invoke Miller’s protection in a collateral challenge. In Savage, the defendant was at

least 21 years old when he committed first degree murder and attempted murder. Savage, 2020 IL

App (1st) 173135, ¶ 2.3 He was sentenced to 85 years’ imprisonment, a de facto life sentence. Id.

¶ 59. He filed an initial postconviction petition claiming that his sentence violated the

proportionate penalties clause. Id. ¶ 7. He alleged that he had been a drug addict since age nine,

was influenced by gang members, used drugs every day when he committed the offenses, and

committed the offenses while attempting to rob a drug house. Id. ¶¶ 7-8. He claimed his age and

long-term drug addiction made him volatile and easily peer-pressured and his sentence did not

account for his rehabilitative potential. Id. ¶ 7.

¶ 44 The circuit court in Savage dismissed the defendant’s petition at the first stage. Id. ¶¶ 11-

12. On appeal, we recognized that Illinois law treats adults younger than 21 years old differently

than those 21 or older. Id. ¶¶ 67-69. However, we noted that case law supported his argument that

an offender’s mental health issues may lower his “functional age.” Id. ¶ 70. Further, the record,

including hospital reports submitted with his PSI, supported his allegations that his age, mental

health issues, and drug addiction made him unusually volatile and susceptible to peer pressure. Id.

¶¶ 71-73. Thus, as his argument was supported by “both the filed record and recent case law,” the

circuit court erred in finding his claim frivolous and patently without merit. Id. ¶ 76.

3
Although the defendant’s petition alleged that he was 22 years old at the time of the offense, we
later stated that he was “seven months past his 21st birthday.” Savage, 2020 IL App (1st) 173135, ¶ 67.

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¶ 45 Defendant argues that he has established cause to file a successive petition because Savage

was decided after he filed his previous postconviction petition. However, Savage concerned an

initial petition, not a successive petition. Id. ¶ 7. Defendants filing their initial petition face a lower

burden than those seeking to file successive petitions. People v. Hemphill, 2022 IL App (1st)

201112, ¶ 34 (distinguishing Savage and noting that pleading requirements for successive petitions

are higher than initial petitions).

¶ 46 Moreover, our supreme court has confirmed 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 proportionate penalties clause” in a successive postconviction petition. People v.

Dorsey, 2021 IL 123010, ¶ 74. The court in Dorsey reasoned:

“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 of ‘some helpful support’ for his state constitutional law

claim, which is insufficient to establish ‘cause.’ ” Id.

¶ 47 Thus, even in cases decided after Savage, we have found under Dorsey that Miller and its

progeny do not provide cause for an offender who was 21 or older to bring a successive

postconviction petition raising a proportionate penalties claim. Montanez, 2022 IL App (1st)

191930, ¶¶ 67-69 (Rochford, J., specially concurring); Hemphill, 2022 IL App (1st) 201112, ¶ 31;

People v. Figueroa, 2022 IL App (1st) 172390-B, ¶¶ 37-39; People v. Ruddock, 2022 IL App (1st)

173023, ¶ 72.

¶ 48 Further, although there are cases where we have found that a defendant has established

cause based on the evolution of juvenile sentencing law, in each of those cases the State conceded

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No. 1-21-1255

the issue. People v. Walsh, 2022 IL App (1st) 210786, ¶¶ 32-33 (collecting cases and noting that,

“when cause has been fully litigated, *** this court has universally applied the holding in Dorsey

to conclude that cause has not been established based on the prior unavailability of Miller and its

progeny”). The State does not concede the issue here. Thus, we conclude that, under Dorsey,

defendant has not established cause. 4

¶ 49 In sum, defendant has not established cause and prejudice warranting leave to file his claim

that his sentence violates the proportionate penalties clause. Nor, as discussed, has he made a

colorable showing of actual innocence based on Collins’s affidavit. Accordingly, we affirm the

circuit court’s judgment denying him leave to file a successive postconviction petition.

¶ 50 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 51 Affirmed.

4
In his reply brief, defendant briefly asserts that the failure of his counsels on direct appeal and in
previous postconviction proceedings to raise his proportionate penalties claim “was not complet[e]ly in
[his] control” and was an objective factor impeding his ability to raise the claim. However, to the extent he
is arguing that prior counsels’ failure to raise the claim in earlier proceedings establishes cause to bring his
successive petition, we note that he did not raise that argument in his motion for leave to file a successive
petition or in his opening brief. It is therefore forfeited. See, e.g., Dorsey, 2021 IL 123010, ¶ 70 (claim not
raised in petition for leave to file a successive petition or petition itself is forfeited); Victim A. v. Song, 2021
IL App (1st) 200826, ¶ 11 (appellant forfeits arguments not raised in opening brief).

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