People v. Bahena

2020 IL App (1st) 180058-U

Opinion

2020 IL App (1st) 180058-U

FIFTH DIVISION Order filed: June 19, 2020

No. 1-18-0058

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 08 CR 3175 ) JOSE BAHENA, ) Honorable ) Maura Slattery Boyle, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court. Justices Rochford and Delort concurred in the judgment.

ORDER

¶1 Held: We affirm the order of the circuit court denying the defendant’s motion for leave to file a successive postconviction petition because he failed to demonstrate that he suffered prejudice from the court’s decision to sentence him to a 45-year prison term.

¶2 The defendant, Jose Bahena, appeals from an order of the circuit court of Cook County,

denying his motion for leave to file a second successive postconviction petition pursuant to the

Post–Conviction Hearing Act (Act) (725 ILCS 5/122 et. seq. (West 2012)). On appeal, he argues No. 1-18-0058

that the circuit court erred in denying his motion for leave to file a successive postconviction

petition because he met the requirements of the Act’s cause-and-prejudice test. For the reasons

that follow, we affirm.

¶3 The facts of this case are fully set forth in our order disposing of the defendant’s direct

appeal. See People v. Bahena, 2012 IL App (1st) 102054-U, ¶¶ 6-22. We set forth only those

facts necessary for an understanding of this appeal.

¶4 The defendant, who was 19 years old at the time, was charged with multiple counts of

first-degree murder in connection with a January 8, 2008 shooting that resulted in the death of

Juan Lebron. Following a jury trial, the defendant was found guilty of first-degree murder and

the circuit court sentenced him to 45 years’ imprisonment, which included 20 years for the

murder and 25 years for personally discharging a firearm.

¶5 The evidence at trial established that, on January 8, 2008, two groups of men from rival

gangs were engaged in a verbal altercation inside of a liquor store. One group included the

defendant and the other included Lebron and Jason Brock. According to the store clerk, Saleh

Abdulla, he had deescalated the situation and the defendant’s group was leaving the store when

one of the people in the other group (later identified as Brock) “took his jacket off” and “start[ed]

calling names.” The defendant turned around, pulled out a gun, and fired. Abdulla did not see

anyone else with a firearm. Abdulla’s testimony is consistent with video surveillance footage.

¶6 Brock testified that he entered the liquor store with Lebron and another friend and went

to the rear of the store, where they saw two other men. One of the two men asked Lebron what

gang he was in. The “other individual grabbed a bottle off the shelf,” and Brock responded by

also grabbing a bottle. One of the two men asked Brock what gang he was in, and Brock

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responded that he was a Simon City Royal. A store clerk temporarily de-escalated the situation,

but one of the individuals ran out of the store and returned with three other men, including the

defendant. According to Brock, he felt “trapped” and called a friend on his phone and requested

a gun. Brock acknowledged that he yelled “FSK” at the other group, meaning “LaFamilia Stone

Killer,” to “disrespect” that gang. He recalled that Lebron was “trying to be the peacemaker” and

told Brock “to back up, to leave him alone.” As the defendant approached, Lebron “grabbed

[Brock] and tried to place [Brock] behind him.” Lebron pushed the defendant, and the defendant

fired a total of five shots. On cross-examination, Brock acknowledged that defendant was the

only person armed with a gun.

¶7 The defendant testified that he was a member of the LaFamilia Stone gang. On the night

in question, he entered the liquor store after he was told that one of his friends was being

threatened. The defendant acknowledged that he was carrying a firearm. Once inside, he heard

someone in the back of the liquor store say “Stone killer” and heard Brock request a gun while

talking on his phone. After Brock ended his phone call, the defendant saw him reach toward his

waist. Lebron then pushed him backward and, believing that Brock was armed, the defendant

opened fire. On cross-examination, the defendant conceded he was the only person in the store

with a gun and that he fired five shots while standing near the front door.

¶8 The jury found the defendant guilty of first-degree murder and found that he personally

discharged a firearm in the commission of the offense that proximately caused Lebron’s death.

At the defendant’s sentencing hearing, the State relied on a victim impact statement and the facts

of the offense in aggravation. In mitigation, the defense cited the defendant’s age, lack of

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criminal history, physically abusive father, and alcohol problems. The defendant gave a

statement in allocution and apologized to Lebron’s family and his own family.

¶9 The circuit court sentenced the defendant to 45 years’ imprisonment, which include a 25-

year enhancement for personally discharging a firearm. In announcing its decision, the court

acknowledged that the defendant had “suffered physical abuse” and had substance abuse issues.

The court characterized the offense as “senseless” and gang related. It told the defendant that,

“[t]he fact of the matter is by the time that your sentence is done you will have spent double the

amount behind bars versus what you spent out on the street.” The defendant filed a motion to

reconsider his sentence, which the court denied.

¶ 10 On direct appeal, we affirmed the defendant’s conviction and sentence over his

contention that the circuit court erred when it denied his motion to admit evidence of Brock’s

violent character. People v. Bahena, 2012 IL App (1st) 102054-U.

¶ 11 On January 1, 2013, the defendant filed a pro se postconviction petition pursuant to the

Act, alleging ineffective assistance of both his trial and appellate counsel. On March 20, 2013,

the circuit court summarily dismissed the petition. The Office of the State Appellate Defender

filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), which we

granted on January 30, 2015. People v. Bahena, 2015 IL App (1st) 131791-U.

¶ 12 On February 19, 2016, the defendant filed his first successive postconviction petition

under the Act, raising claims of actual innocence and a Brady violation. The defendant’s claims

were premised on an affidavit provided by Brock and attached to the defendant’s petition, in

which Brock averred that he and Lebron sought out a liquor store in rival gang territory hoping

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to start a confrontation and that they purposefully provoked the defendant by implying they were

armed.

¶ 13 On April 11, 2016, the circuit court denied the defendant’s motion for leave to file his

first successive postconviction petition, finding that the defendant did not raise a colorable claim

of actual innocence because the evidence contained in the Brock affidavit was: not newly

discovered, cumulative, and not of such a conclusive character that it would have changed the

result on retrial. The court also found that the defendant’s claim of a Brady violation failed

because it was not based on “material” evidence and because he failed to demonstrate “cause” to

assert the Brady claim in a successive petition. On appeal, we affirmed the circuit court’s denial.

People v. Bahena, 2020 IL App (1st) 161515-U.

¶ 14 On November 7, 2017, the defendant filed a motion for leave to file a second successive

postconviction petition under the Act and attached a postconviction petition, arguing that his 45-

year sentence is a de facto life sentence that violates the eighth amendment to the United States

Constitution and the proportionate penalties clause of the Illinois Constitution because it was

imposed without consideration of his age, potential for rehabilitation, or circumstances of the

case, and shocks the moral sense of the community. He also argued that the 25-year firearm

enhancement is unconstitutional as applied to him because he was acting in self-defense, and as

such, the statute’s deterrent effect is inapplicable.

¶ 15 In support of his claim that his 45-year sentence was unconstitutional, the defendant

attached to his petition the following two newspaper articles: “Research Shows that Criminal

Offending Ends During the Young Adult Stage of Life” from a February 2015 Juvenile Justice

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Initiative publication and a October 2, 2015 Washington Post editorial entitled “Why 21 year-old

offenders should be tried in family court.”

¶ 16 On November 16, 2017, the circuit court denied the defendant’s motion for leave to file a

second successive postconviction petition, finding that the petition was “patently without merit”

because it “erroneously indicates that Miller somehow applies to this situation, which it does

not.” This appeal followed.

¶ 17 On appeal, the defendant contends that the circuit court erred in denying him leave to a

file second successive postconviction petition. Specifically, the defendant argues that his motion

met the cause-and-prejudice test as to his claim that his 45-year sentence is unconstitutional

under both the United States and Illinois constitutions.

¶ 18 Generally, a defendant may file only a single postconviction petition under the Act. 725

ILCS 5/122-1(f); People v. Edwards, 2012 IL 111711, ¶ 29. The bar against successive

proceedings is relaxed in two situations: (1) where the defendant can establish cause and

prejudice for failing to raise the claim in the original postconviction proceeding; or (2) where the

defendant raises a colorable claim of actual innocence. Edwards, 2012 IL 111711, ¶¶ 22-23; 725

ILCS 5/122-1(f) (West 2016). Under the Act, “cause” is defined as an objective factor that

impeded the defendant’s ability to raise a specific claim during his prior postconviction

proceedings; “prejudice” is occasioned by an error which so infected the trial that the resulting

conviction or sentence violated due process. 725 ILCS 5/122-1(f) (West 2016). Our supreme

court has held that “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

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petition with supporting documentation is insufficient to justify further proceedings.” People v.

Smith, 2014 IL 115946, ¶ 35. We review the denial of a defendant’s motion for leave to file a

successive postconviction petition de novo. People v. Miranda, 2018 IL App (1st) 170218, ¶ 22.

¶ 19 The defendant contends that he made the requisite showings of cause and prejudice under

the Act. As to cause, he argues that two of the primary authorities on which his claim relies,

People v. Reyes, 2016 IL 119271, and People v. Harris, 2016 IL App (1st) 141744, were not

decided until after he filed his prior postconviction petitions. As to prejudice, the defendant

argues that his 45-year sentence is a de facto life sentence and is unconstitutional when applied

to him, a 19-year-old whose “brain was still developing and had not yet fully matured into

adulthood.”

¶ 20 The State responds that the defendant fails both elements of the test because he could

have made a good faith argument with precedent available to him at the time of his prior

postconviction petitions and because he cannot establish prejudice. We agree with the State that

the defendant cannot establish prejudice from the circuit court’s decision to sentence him to 45

years’ imprisonment.

¶ 21 We first turn to the defendant’s claim that his 45-year sentence is a violation of the eighth

amendment to the United States Constitution (U.S. Const., amends. VIII, XIV). In Miller v.

Alabama, 567 U.S. 460 (2012), the United States Supreme Court held that the eighth amendment

“forbids a sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders.” Miller, 567 U.S. at 479. The Court emphasized that “[m]andatory life

without parole for a juvenile precludes consideration” of numerous mitigating factors, including

the juvenile’s age and its “hallmark features,” and the possibility of rehabilitation. Miller, 567

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U.S. at 477-78. Additionally, the Court held that “a judge or jury must have the opportunity to

consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”

Id. at 489. In Montgomery v. Louisiana, 577 U.S. ––––, ––––, 136 S. Ct. 718, 736 (2016), the

Court clarified that Miller applies retroactively “to juvenile offenders whose convictions and

sentences were final when Miller was decided,” including cases on collateral review.

¶ 22 The Illinois Supreme Court has ruled that Miller applies to discretionary, as well as

mandatory life sentences, (People v. Holman, 2017 IL 120655, ¶ 40), and also to de facto life

sentences, or sentences “that cannot be served in one lifetime” and have “the same practical

effect on a juvenile defendant’s life as would an actual mandatory sentence of life without

parole” (People v. Reyes, 2016 IL 119271, ¶¶ 9-10). Recently, our supreme court in People v.

Buffer, 2019 IL 122327, concluded that a sentence exceeding 40 years was a de facto life

sentence, requiring the sentencing court to consider “[the] defendant’s youth and its attendant

circumstances.” Buffer, 2019 IL 122327, ¶¶ 41-42.

¶ 23 Here, the defendant was 19 years old when he shot Lebron. The Supreme Court in Miller

explicitly held that the eighth amendment only prohibits “mandatory life without parole for those

under the age of 18” at the time of their crimes. (Emphasis added.) Miller, 567 U.S. at 465. Our

supreme court later observed that, when the United States Supreme Court held that 18 would be

the age to differentiate between juvenile and adult offenders, it was not “based primarily on

scientific research” and merely coincided with the point where society determines adulthood and

childhood for many other purposes. People v. Harris, 2018 IL 121932, ¶ 60 (citing Roper, 543

U.S. at 574). The Harris court further noted that new research findings still did not alter that

“traditional line.” Id. The supreme court expressed agreement with those courts that had

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repeatedly held that the age of 18 still marked the line between juveniles and adults for

sentencing purposes. Id. ¶ 61. Although the defendant urges this court to change where that line

is drawn, such a task is best left to the legislature. See Buffer, 2019 IL 122327, ¶¶ 34-35.

¶ 24 We turn next to the defendant’s argument that his 45-year sentence violates the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. 1, § 11). Article I,

section 11 of the Illinois Constitution provides, in relevant part, 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. A sentence violates the

proportionate penalties clause if it is “ ‘cruel, degrading, or so wholly disproportionate to the

offense as to shock the moral sense of the community.’ ” People v. Sharpe, 216 Ill. 2d 481, 487

(2005) (quoting People v. Moss, 206 Ill. 2d 503, 522 (2003)). We may determine whether a

sentence shocks the moral sense of the community by considering both objective evidence and

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

726, 727 (2008).

¶ 25 The defendant contends that his sentence shocks the moral sense of the community

because his 19-year-old brain was no different than that of a juvenile offender, and thus, he

shared juvenile offenders’ diminished culpability and enhanced rehabilitative potential. He also

argues that his sentence denies him the opportunity of being rehabilitated into a useful citizen

because he will not be released until age 64 “with no retirement plan or savings.” Lastly, he

argues that, pursuant to our supreme court’s holding in Harris, his petition must advance for

further proceedings. The State responds that the defendant has failed to allege sufficient facts to

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support his claim that he should be treated similar to a juvenile offender. We agree with the

State.

¶ 26 The 18-year-old defendant in Harris, on which the defendant primarily relies, argued on

direct appeal that his 76-year sentence shocked the moral sense of the community given the facts

of his case, his youth, and other mitigating circumstances. Harris, 2018 IL 121932, ¶ 36. The

court, however, noted that there was no evidentiary hearing or factual development to support the

defendant’s claim in the trial court. Id. ¶ 46. The court thus held that the record was insufficiently

developed to address his contention that Miller applied to his proportionate penalties claim. Id. ¶

48. Nonetheless, the Harris court observed that the defendant could raise the claim in a

postconviction petition. Id.

¶ 27 Here, the defendant argues that he should have the opportunity to develop the record to

determine whether the protections of Miller can apply to a 19-year-old offender. Successive

postconviction petitions, however, are “highly disfavored” (Bailey, 2017 IL 121450, ¶ 39) and

meeting the cause-and-prejudice test is “more exacting standard” than the test for surviving the

first stage of an initial postconviction petition (Conick, 232 Ill. 2d at 142). In addition, a

defendant must submit enough documentation to allow a circuit court to determine whether the

cause-and-prejudice test was met. Smith, 2014 IL 115946, ¶ 35 (quoting Tidwell, 236 Ill. 2d at

161). The Harris court did not specify the requirements to meet the cause-and-prejudice test.

¶ 28 In this case, the defendant’s motion for leave to file a successive postconviction petition

did not provided any evidence to indicate how his own immaturity or individual circumstances

would provide a compelling reason to allow him to file a second successive postconviction

petition. Rather, on appeal, the defendant asserts that his behavior “was likely influenced by his

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peers” because the shooting was gang related and that he acted impulsively and rashly owing to

the fact that he had previously been the victim of gang-related violence. He even implies that a

previous brain injury might have played a factor. However, these factual allegations were

missing from his motion for leave to file a successive postconviction petition; instead, his motion

merely contained general assertions that immaturity and brain development commonly

associated with juveniles can also extend into young adulthood. We also note that, elsewhere in

his motion, the defendant undercuts his current argument that his actions were the result of a still

developing brain by contending that his actions on the day in question demonstrated “restraint”

and that “to this day [he] believes his actions were justified.” Simply put, the defendant’s general

assertions, along with his recitation of various studies regarding the evolving science of juvenile

maturity and development, are insufficient to survive the more exacting standard that would

warrant the filing of a successive postconviction petition. People v. Holman, 2017 IL 120655, ¶¶

30 (citing People v. Thompson, 2015 IL 118151). The circuit court, therefore, correctly denied

the defendant’s motion because he could not establish prejudice under the cause-and-prejudice

test.

¶ 29 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 30 Affirmed.

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