People v. Arnold

2023 IL App (1st) 210901-U

• Court: Appellate Court of Illinois
• Decided: June 16, 2023
• Docket: 1-21-0901
• Status: Unpublished

Opinion

2023 IL App (1st) 210901-U No. 1-21-0901 Order filed June 16, 2023 Sixth 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. 00 CR 02191 ) MARY ANN ARNOLD, ) Honorable ) Michele McDowell Pitman, Defendant-Appellant. ) Judge, Presiding.

JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mikva and Justice Tailor concurred in the judgment.

ORDER

¶1 Held: Trial court’s judgment denying defendant’s motion for leave to file a successive postconviction petition is affirmed where she fails to adequately demonstrate cause for failing to raise her eighth amendment and proportionate penalties claims on direct appeal or in her initial 2004 postconviction petition.

¶2 Defendant Mary Ann Arnold appeals the trial court’s denial of her motion for leave to file

a successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-1 et seq. (West 2020)). She argues that her successive postconviction petition made a prima No. 1-21-0901

facie showing that her 80-year sentence violated the eighth amendment and the proportionate

penalties clause as applied to her because it was imposed without adequate consideration of her

age of 22 years old at the time of the offenses. For the following reasons, we affirm the judgment

of the trial court.

¶3 Following an open guilty plea, defendant was convicted of two counts of first degree

murder and aggravated kidnapping and was sentenced to concurrent prison terms of 80 and 15

years, respectively. In support of the factual basis of her plea, evidence established that defendant

and her codefendants, Evelyn Jackson and Kathryn Amos, kidnapped the victim, Lois Thomas,

then beat, strangled and left the victim in a river where she died. The trial court found defendant

eligible for the death penalty, but after hearing evidence in aggravation and mitigation, determined

that there were mitigating factors sufficient to preclude the imposition of the death penalty. Before

imposing sentence, the trial court noted that defendant orchestrated the entire abduction and

killing, supplied the motive, created the opportunity and recruited two codefendants. Defendant

“secreted” the victim to a wooded area, armed herself with dangerous weapons, and beat the victim

for a lengthy period of time. In imposing an extended-term sentence for defendant, the trial court

further found that the victim’s murder was a brutal and heinous crime indicative of wanton cruelty.

¶4 This is the fourth time that defendant has appeared before this court in connection with her

guilty plea and sentence. Defendant first appealed the trial court’s denial of her motion to

reconsider sentence and the denial of her motion to withdraw her guilty plea, contending that her

80-year sentence was excessive and unfairly disparate to the 45 and 20 year terms imposed on her

codefendants, Jackson and Amos, respectively. We affirmed defendant’s sentences, finding that

the trial court’s sentence was not an abuse of its discretion and further that the record supported

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the trial court’s finding that defendant’s participation was of a different nature and extent than that

of her codefendants to justify the more severe penalty. People v. Arnold, Nos. 1-01-4429, 1-03-

0541 (cons.) (2003) (unpublished order under Supreme Court Rule 23). The supreme court denied

defendant’s petition for leave to appeal on March 24, 2004. People v. Arnold, 208 Ill. 2d 540

(2004).

¶5 On October 22, 2004, defendant filed her initial postconviction petition, arguing that, under

Apprendi v. New Jersey, 530 U.S. 466 (2000), a jury was required to make the finding that her

conduct was exceptionally brutal or heinous behavior indicative of wanton cruelty. She further

argued that the indictments did not allege that the offense was brutal and heinous, and there was

no reason for an extended-term sentence because she had no prior criminal convictions. The trial

court granted the State’s motion to dismiss defendant’s postconviction petition, finding that: (1)

defendant did not have an Apprendi claim because she was found eligible for the death penalty

and because she pled guilty; (2) res judicata applied; and (3) the appellate court found that her

sentence was appropriate. This court granted defendant’s appellate counsel’s motion to withdraw

on appeal from that ruling. People v. Arnold, No. 1-05-3419 (2007) (unpublished summary order

under Supreme Court Rule 23).

¶6 On June 22, 2007, defendant filed her first petition for relief from judgment, claiming that

the victim was alive when she left her at the river and that Damien McKinley and Walter

Hollingsdale went to the victim while she was still alive and killed her. She further argued that her

father was unable to testify on her behalf because he was not notified of a change in court dates,

and that she was on heavy medication at the time of her plea and “not in a clear frame of mind to

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make adequate decisions at the time.” The trial court granted the State’s motion to dismiss.

Defendant did not appeal that decision.

¶7 Defendant filed a motion for leave to file a successive postconviction petition on March

14, 2011, arguing that her aggravated kidnapping conviction was improper, and should be vacated

as a lesser-included offense, which the trial court denied. Defendant did not appeal that decision.

¶8 On September 18, 2012, defendant filed a second petition for relief from judgment,

including letters from codefendant Amos, stating that it was codefendant Jackson who was

responsible for the victim’s death and not defendant. The trial court granted the State’s motion to

dismiss. Defendant did not appeal that decision.

¶9 Defendant filed a third petition for relief from judgment on December 20, 2017, arguing

that she was a victim of domestic violence which should have been considered in mitigation at her

sentencing. The trial court granted the State’s motion to dismiss, and defendant did not appeal that

decision.

¶ 10 On April 2, 2021, defendant filed a second motion for leave to file a successive

postconviction petition, which is the subject of this appeal. In her pro se pleading, defendant argued

that her trial counsel was ineffective for failing to explore claims that: (1) defendant was an

emerging adult at the time of the offense; (2) one of her convictions should be vacated under the

one act, one crime doctrine; (3) the offense was committed under the heat of passion/compulsion;

and (4) defendant was a victim of domestic violence and suffered from postpartum depression.

Defendant argued that these issues ware not previously available to her and that she demonstrated

prejudice where she would benefit from a new sentencing hearing.

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¶ 11 The trial court denied defendant’s second motion for leave to file a successive petition on

June 25, 2021, finding that defendant waived all errors and failed to establish cause and prejudice.

Defendant’s timely notice of appeal was filed on July 23, 2021.

¶ 12 On appeal, defendant contends that her second successive postconviction pleadings made

a prima facie showing that her 80-year sentence violated the eighth amendment and the

proportionate penalties clause as applied to her because it was imposed without adequate

consideration of her youth. Defendant cites juvenile and emerging adult sentencing law in support

of her contention, arguing that she made a prima facie showing of cause and prejudice for her as-

applied emerging adult Miller claim. She also argues that her claim is not barred by her non-

negotiated guilty plea.

¶ 13 We note that in the circuit court, defendant additionally argued that her trial counsel was

ineffective for failing to raise these issues and for failing to raise the heat of passion/compulsion

defenses on her behalf. However, defendant has abandoned these arguments on appeal and only

raises challenges to her sentence under the eighth amendment and proportionate penalties clause

based on an emerging adult theory. Defendant has therefore forfeited any arguments regarding

ineffective assistance of counsel on this appeal. People v. Urzua, 2021 IL App (2d) 200231, ¶ 86.

¶ 14 The Act provides a statutory remedy for criminal defendants who claim that their

constitutional rights were violated at trial or sentencing. People v. Walker, 2022 IL App (1st)

201151, ¶ 19. Although the Act contemplates only one postconviction petition, our supreme court

has provided through its case law two bases upon which the bar against successive proceedings

will be relaxed. Id. To file a successive postconviction petition, a defendant must establish either

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(1) cause for not filing earlier and prejudice or (2) actual innocence. Id. In the case at bar, as noted

above, defendant alleges cause and prejudice.

¶ 15 Prior to beginning a successive proceeding, a defendant must get leave of court to file a

successive petition. Id. ¶ 20. At that stage, when a defendant seeks leave to file, he or she is required

to demonstrate only a prima facie showing of cause and prejudice. Id. To show cause, a defendant

must identify an objective factor that impeded his ability to raise the claim in his initial petition.

Id. To show prejudice, a defendant must demonstrate that the claim so infected the trial that the

resulting conviction or sentence violated due process. Id. The cause-and-prejudice standard is

higher than the normal first-stage frivolous or patently without merit standard applied to initial

petitions. People v. Green, 2022 IL App (1st) 200749, ¶ 26.

¶ 16 If leave to file is granted, the petition will be docketed for second-stage proceedings.

Walker, 2022 IL App (1st) 201151, ¶ 20. Leave of court to file a successive postconviction petition

should be denied only where it is clear from a review of the petition and the attached

documentation that, as a matter of law, 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. Green, 2022 IL App (1st) 200749, ¶ 26.

¶ 17 Here, defendant has previously made various challenges to her sentence on a motion to

reconsider sentence, on direct appeal, her initial postconviction petition, and in her third petition

for relief from judgment. However, she has never raised a challenge to her 80-year sentence under

the eighth amendment or proportionate penalties clause standards. Section 122-3 of the Act

specifically states that “[a]ny claim of substantial denial of constitutional rights not raised in the

original or an amended petition is waived.” 725 ILCS 5/122-3 (West 2020). Accordingly,

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defendant’s proposed constitutional challenges to her sentence set forth in her successive

postconviction petition are subject to statutory waiver. However, defendant seeks to avoid the

procedural consequence of waiver by application of the cause and prejudice test.

¶ 18 This court has previously rejected similar eighth amendment claims raised by defendants

in seeking leave to file a successive postconviction petition. In Green, we found that the

defendant’s eighth amendment challenge was foreclosed because Illinois courts have held that the

eighth amendment is not implicated in the case of a defendant aged 18 or over. Green, 2022 IL

App (1st) 200749, ¶ 29. In Walker, this court found that this court’s eighth amendment decisions

did not directly apply where the defendant was not a juvenile at the time of the offense, and our

supreme court had previously reaffirmed under 18 as the age cutoff for juvenile sentencing

protections in the eighth amendment context. Walker, 2022 IL App (1st) 201151, ¶ 24 citing

People v. Harris, 2018 IL 121932, ¶ 61. Thus, as has been previously determined by the applicable

Illinois caselaw, defendant cannot bring an eighth amendment challenge to her sentence because

she was 22 at the time of her offense and not a juvenile.

¶ 19 That brings us to defendant’s proportionate penalties claim. While Harris foreclosed

defendant’s eighth amendment argument, it left the applicability of the Illinois Constitution open.

See Harris, 2018 IL 121932, ¶ 48. Whereas here, a young adult raises an applied challenge, Illinois

courts have routinely considered their sentencing claims under the proportionate penalties clause

of our Illinois constitution rather than the eighth amendment. Walker, 2022 IL App (1st) 201151,

¶ 25; Green, 2022 IL App (1st) 200749, ¶¶ 30-33, People v. Savage, 2020 IL App (1st) 173135, ¶

61; People v. Ross, 2020 IL App (1st) 171202, ¶ 20. Our supreme court recently addressed the

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exact proportionate penalties issue raised by defendant in this appeal in People v. Clark, 2023 IL

127273.

¶ 20 In Clark, the defendant sought leave to file a successive postconviction petition to

challenge his 90-year de facto life sentence for first degree murder committed when he was 24

years old under the proportionate penalties clause. Id. ¶ 2. The supreme court concluded that Miller

and its progeny did not provide the defendant with either cause or prejudice that would allow him

to bring a new proportionate penalties clause challenge to his 90-year sentence. Id. ¶ 58. Citing its

prior decision to People v. Dorsey, 2021 IL 123010, ¶¶ 73-74, the supreme court noted that Miller’s

announcement of a new substantive rule under the eighth amendment did not provide cause for a

juvenile offender to raise a claim under the proportionate penalties clause because Illinois law

recognized the special status for juvenile offenders for purposes of applying the proportionate

penalties clause. The supreme court concluded that the unavailability of Miller did not impede the

defendant’s presentation of his proportionate penalties claim on direct appeal or in his first

postconviction petition, and the defendant’s reliance on Miller failed to establish “cause” for

avoiding the statutory waiver set forth in section 122-3 of the Act. Id. ¶ 67.

¶ 21 The same result must be reached here. While defendant raised challenges to her sentence

several times after her sentencing, she never raised a challenge under the proportionate penalties

clause even though such argument was always available to her. As our supreme court found in

Clark, defendant had the essential legal tools to raise her present proposed claim under the

proportionate penalties clause when she filed her previous postconviction petitions. Id. ¶ 93. Thus,

we conclude that defendant has failed to establish a prima facie showing of cause for purposes of

the cause-and-prejudice test for failing to raise her proportionate penalties claim on direct appeal

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or in her initial 2007 postconviction petition, and the trial court properly denied defendant’s motion

for leave to file a successive postconviction petition.

¶ 22 Because defendant has not made a prima facie showing of cause, we need not reach the

question of whether she made a prima facie showing of prejudice. Walker, 2022 IL App (1st)

201151, ¶ 31.

¶ 23 However, even if defendant could establish cause, her motion for leave to file a successive

postconviction petition still fails because she cannot establish the prejudice prong of the cause-

and-prejudice test by advancing a Miller-based challenge to her 80-year sentence because she was

only 22 years old at the time of the offense (a young offender).

¶ 24 Defendant is correct that our supreme court has not foreclosed “emerging adult” defendants

between 18 and 19 years old from raising as-applied proportionate penalties clause challenges to

life sentences based on the evolving science on juvenile maturity and brain development. Clark,

2023 IL 127273, ¶ 87. However, none of the defendants in the cases cited by defendant were over

the age of 21, and here defendant was 22. See Id. ¶ 88. While we recognize the evolving science

regarding brain development, for now, individuals who are 21 years or older are adults for Miller

purposes without any additional evidence to demonstrate that their brain was that of a juvenile.

¶ 25 Moreover, as previously noted, defendant’s 80-year sentence was not a mandatory sentence

but was discretionary. The record indicates that the trial court found defendant eligible for the

death penalty, but her background provided sufficient mitigating circumstances to preclude the

death penalty. The trial court instead used its discretion to sentence her to an 80-year prison term.

In Jones v. Mississippi, 593 U.S. __, 141 S. Ct. 1307, 1314 (2021), the United States Supreme

Court clarified that the holding in Miller does not apply to discretionary life sentences where the

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sentencing court does have discretion to consider youth and attendant characteristics at sentencing.

Our supreme court has recently addressed this issue in People v. Wilson, 2023 IL 127666, ¶¶ 34-

42, and expressly overruled People v. Holman, 2017 IL 120655. In doing so, the court found that

its decision in Holman was at odds with the Supreme Court’s decision in Jones, which found that

a State’s discretionary sentencing scheme satisfies Miller’s requirement that sentencing courts

account for youth and its attendant circumstances. Id. ¶ 38. In this case, the length of defendant’s

discretionary sentence stems, in large part, from the circuit court giving significant weight to the

seriousness of the offense as well as its consideration of the various mitigating factors that it found

weighed against sentencing defendant to death.

¶ 26 Leave to file a successive postconviction petition should be denied when the petition and

the documentation submitted by defendant does not adequately allege facts demonstrating cause

and prejudice. People v. Everett, 2022 IL App (1st) 201169, ¶ 47. Accordingly, as discussed herein,

defendant’s allegations cannot meet the cause and prejudice standard for an as-applied challenge

under either the eighth amendment or the proportionate penalties clause. For the foregoing reasons,

we affirm the trial court’s denial of defendant's motion for leave to file a successive postconviction

petition.

¶ 27 Affirmed.

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