2020 IL App (1st) 172016-U
FIFTH DIVISION February 14, 2020
No. 1-17-2016
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 JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Respondent-Appellee, ) ) v. ) No. 11 CR 17054 ) GYASI BANNER, ) ) Honorable Neera Lall Walsh, Petitioner-Appellant. ) Judge Presiding.
JUSTICE DELORT delivered the judgment of the court. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in summarily dismissing petitioner’s petition for postconviction relief. Affirmed.
¶2 Following a jury trial, petitioner Gyasi Banner was convicted of attempted murder,
aggravated criminal sexual assault, aggravated discharge of a firearm, and the violation of an order
of protection. The trial court sentenced him to 47 years’ imprisonment. On direct appeal, we
granted petitioner additional presentence custody credit and vacated his conviction for aggravated
discharge of a firearm, but otherwise affirmed his conviction and sentence. See People v. Banner,
2015 IL App (1st) 132974-U. Petitioner then filed a petition pursuant to the Post-Conviction No. 1-17-2016
Hearing Act (the Act) alleging, inter alia, that he received ineffective assistance of trial counsel
and his sentence is an unconstitutional de facto life sentence. Petitioner now appeals the circuit
court’s summary dismissal of his petition, contending that (1) trial counsel was ineffective in
failing to investigate petitioner’s testimony prior to advising him to waive his right to testify; and
(2) his 47-year aggregate sentence is an unconstitutional de facto life sentence. We affirm.
¶3 BACKGROUND
¶4 The facts adduced at trial were thoroughly set forth in petitioner’s direct appeal. See
id. ¶¶ 4-36. Accordingly, we will limit our discussion only to those facts pertinent to the issues
raised here.
¶5 Petitioner was charged in a multi-count indictment with, inter alia, aggravated criminal
sexual assault, aggravated discharge of a firearm, attempted first degree murder, and violating an
order of protection.
¶6 The victim, J.M., testified that she and petitioner have a son, Gyasi, Jr., who was born in
February 2011. In July 2011, J.M. obtained an order of protection against petitioner following an
altercation in which she received a black eye that burst open from swelling, a “busted” lip, and
bruising.
¶7 Early on the morning of September 20, 2011, J.M. said that petitioner arrived at her aunt’s
residence where J.M. was living. Petitioner asked to see his son, and J.M. agreed despite the order
of protection. J.M. stepped out onto the porch, and while she was still holding the baby, petitioner
hugged and kissed the baby, and told him that petitioner loved him and would see him “in heaven.”
J.M. told petitioner not to say that to the baby and turned to go back into the house. Petitioner
began to walk away but told J.M. to wait because petitioner had something for her. Petitioner then
pulled out a gun from his book bag.
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¶8 J.M. tried to go into the house, but petitioner grabbed the back of her head and held the gun
to her chin while J.M. was holding the baby. Petitioner said that there would be “problems” if he
found out the baby was not his or if J.M. was “messing around” on petitioner. Petitioner said he
would not hurt the baby but would instead “end it” for both of them right there. While holding the
gun to J.M.’s face, petitioner forced J.M. upstairs despite her protests.
¶9 They went upstairs, and petitioner told J.M. to put the baby in a car seat so that they could
talk. J.M. did not, so petitioner took the baby from J.M., placed him in a car seat in the upstairs
bedroom and told J.M.’s four-year-old sister to watch him. J.M. and petitioner then went into the
bathroom, and petitioner locked the door.
¶ 10 J.M. was standing in front of the bathroom sink, and petitioner was standing behind her,
kissing her neck. J.M. told him that she did not want to have sex, but petitioner responded, “I
didn’t ask you what you wanted to do, I’m gonna take it.” Petitioner then placed the gun on the
sink, pulled down J.M.’s pants and underwear, bent her over, and placed his penis in her vagina.
¶ 11 Afterwards, petitioner told J.M. to “fix” her face because she had been crying. Petitioner
left with the baby and warned her that there would be “a problem” if she did not come downstairs
in 15 minutes. J.M. quickly dressed and went downstairs.
¶ 12 J.M. met petitioner back on the porch, and petitioner gave her the baby. Petitioner accused
J.M. of “messing up his life” and blamed her for his criminal record. J.M. laughed at him, and
petitioner threatened to “slap the dog shit out of [her]” if she laughed at him again. J.M. again
laughed, and petitioner slapped her face. The baby started crying.
¶ 13 Tonia Darby-Jones, J.M.’s aunt, came out and told J.M. to go inside the house. Petitioner
told J.M. to “hold on” and that Darby-Jones “can wait.” Darby-Jones again told J.M. to go into
the house, so J.M. went inside, put the baby to bed, and called the police.
3 No. 1-17-2016
¶ 14 After she hung up, she could hear arguing on the porch between her aunt, her aunt’s
boyfriend (Capton Brown), and petitioner. J.M. then saw Brown and petitioner in a fistfight. J.M.
called the police a second time, again telling them that petitioner had a gun and that they should
come quickly. J.M. told Darby-Jones that the gun was in petitioner’s book bag on the porch.
Darby-Jones brought the bag into the house, locked the door, and found the gun.
¶ 15 Petitioner returned and demanded his bag, but Darby-Jones refused. Petitioner then tore
the door off its hinges and took the bag. J.M. and Darby-Jones were standing in the doorway,
about two feet from petitioner, when petitioner removed the gun and began firing at Brown. After
shooting at Brown, petitioner returned the gun to the book bag and left.
¶ 16 The police arrived, and after J.M. spoke to a detective at the police station, she was
transported to a nearby hospital. J.M. went to the hospital for analysis with a “rape kit,” but she
declined and was discharged.
¶ 17 On cross-examination, J.M. conceded that she did not say anything to her four-year-old
sister after petitioner placed Gyasi Jr. in a car seat and left the baby with the four-year-old. J.M.
also agreed that she did not try to escape after petitioner placed the gun on the bathroom sink.
¶ 18 J.M. further conceded that she visited petitioner more than 10 times since the time of the
assault and wrote three letters to petitioner. J.M. wrote that she loved and missed petitioner. She
further expressed remorse for his incarceration and her wish that petitioner was with her to help
raise their child. J.M. admitted that, in one of her letters, she wrote that she did not know whether
petitioner should “move on” but that she would not beg him to stay and was “damn sure not gonna
[sic] play 2nd to no bitch!” The letters also stated that the Department of Children and Family
Services (DCFS) threatened to “take” their child from her due to child endangerment or neglect if
she did not follow through with her sexual assault accusation.
4 No. 1-17-2016
¶ 19 Darby-Jones testified that, on the morning of September 20, she answered the door and
saw petitioner, who asked to see J.M. She called to J.M. that petitioner was at the door and went
back to sleep. After “a few” hours, Darby-Jones got up and began cooking. She saw J.M. go out
the front door with the baby. Later, Darby-Jones asked J.M. several times to come inside because
the food was ready, but J.M. did not come back. Brown, who had spent the prior evening at the
house and had been entering and leaving the house that morning while getting ready for work,
came in and told Darby-Jones that petitioner had threatened to slap J.M.
¶ 20 Darby-Jones then went to the porch and asked J.M. twice to come into the house. When
J.M. went into the house, Darby-Jones told petitioner to leave, but petitioner replied, “Bitch, I ain’t
going nowhere.” Darby-Jones began arguing with petitioner, demanding that he leave, and Brown,
who had been standing in front of Darby-Jones’s car, walked over and told petitioner to leave.
Brown and petitioner began arguing, and then started fighting. The fight ended shortly thereafter,
and Darby-Jones saw petitioner shake Brown’s hand.
¶ 21 Darby-Jones walked back into her house and received a call from the police asking to
confirm that there had been a report of a person with a gun. After J.M. told her where it was,
Darby-Jones saw the gun in petitioner’s book bag and brought the bag into the house. Petitioner
walked up to the front door and demanded his book bag, but Darby-Jones refused and said the
police were coming. Petitioner kicked the exterior door off its hinges and pushed open the interior
door. Petitioner took the bag to the porch and took out the gun.
¶ 22 Darby-Jones yelled out to Brown that petitioner had a gun. Darby-Jones said petitioner
shot five or six times in Brown’s direction. Brown heard Darby-Jones yell to him and began
running down the street when he saw petitioner remove the gun. Although Brown heard the shots
and testified that he saw petitioner point the gun at him, he did not see petitioner shoot at him.
5 No. 1-17-2016
Nonetheless, Brown testified that the shots came from behind him and that they were close to him.
Petitioner then left, and after Darby-Jones called the police, she got into a car and followed
petitioner down the street.
¶ 23 Following the State’s presentation of witness testimony, the following colloquy took place.
“THE COURT: Okay. We are back on the record. We are
outside the presence of the jury[;] we took a brief recess. The State
is present, the Defense is present, the Defendant is present also.
The State is anticipating putting in two documents, then I
believe they’re going to be resting. ***.
*** I’ve been informed by [defense counsel] that her client
does not wish to testify, which she has had an opportunity to discuss
this with him. The Court is now going to be making inquiry of Mr.
Banner also.
Mr. Banner, do you understand the decision to testify is a
decision that is yours, and yours alone to make?
THE DEFENDANT: Yes.
THE COURT: All right. And you can consult with your
lawyers, which is what you have done; is that correct?
THE COURT: Okay. And what did you decide, after
consulting with your lawyers: Do you wish to testify or not?
THE DEFENDANT: No, I do not.
***
6 No. 1-17-2016
THE COURT: All right. Then, okay. The Court accepts
that the Defendant is knowingly and willingly making an informed
decision not to testify at this time, ***.”
¶ 24 The jury subsequently found petitioner guilty of attempted murder, aggravated criminal
sexual assault, aggravated discharge of a firearm, and violation of an order of protection. The jury
further found that, during the commission of the attempted murder, petitioner was armed with and
personally discharged a firearm.
¶ 25 During defendant’s sentencing hearing, the circuit court recounted that it had an
opportunity to hear the trial testimony and consider the statutory aggravating and mitigating
factors. The court added that it was “taking into consideration especially this defendant’s age and
the facts of this case and what the range is in this case and this defendant’s background.” The
court stated that the minimum aggregate sentence was 47 years. It noted that, although the
minimum sentence might appear harsh, “the facts in this case [call] for a harsh sentence as there
were some serious and egregious things that happened ***.” The court added that it was also
“very mindful of this defendant’s youth,” reiterating that defendant was a young man. The court
then sentenced petitioner to consecutive terms of 26 years and 21 years for the attempted murder
and aggravated criminal sexual assault convictions, respectively. The court noted that those
sentences were the mandatory minimum sentences and had to be served consecutively pursuant to
statute. The trial court also imposed concurrent sentences of four years and three years on the
aggravated discharge of a firearm and violation of an order of protection convictions, respectively.
¶ 26 On direct appeal, petitioner contended that (1) the State failed to prove him guilty of
aggravated criminal sexual assault beyond a reasonable doubt; (2) his trial counsel rendered
ineffective assistance by failing to seek severance and present evidence that would have impeached
7 No. 1-17-2016
the victim’s credibility; (3) the indictment for the violation of an order of protection charge was
void; (4) his conviction for aggravated discharge of a firearm should be vacated under the one act,
one crime doctrine; and (5) he was entitled to additional presentence custody credit. Banner, 2015
IL App (1st) 132974-U, ¶ 2. We vacated his aggravated discharge of a firearm conviction and
modified his mittimus to reflect the correct presentence custody credit, but we otherwise rejected
his claims and affirmed his remaining convictions and sentence. Id. ¶ 87.
¶ 27 On April 5, 2017, petitioner filed his postconviction petition. His petition alleged, inter
alia, that his trial counsel rendered ineffective assistance for failure to consult with and determine
petitioner’s testimony on his own behalf prior to advising him not to testify. Petitioner stated that
trial counsel advised him not to testify because she believed the State’s evidence was weak.
Petitioner attached an affidavit to his petition in which he stated that, although he wanted to testify,
his trial counsel said that he should not because he was unprepared to do so and thus “might say
the wrong thing.” Petitioner denied sexually assaulting J.M. and further denied entering the house
until he had to force his way in to retrieve his book bag. Petitioner explained that there was no
“need” for him to sexually assault J.M. because he also had two other children by two other women
with whom he continued to have a relationship while he was in a relationship with J.M. Petitioner
speculated that J.M. accused him of rape because she was angry at petitioner for breaking off their
engagement and revealing that he was going back to the mother of one of his other children.
¶ 28 Petitioner further stated in his affidavit that he never tried to kill Brown. Instead, petitioner
asserted that, after their altercation ended peacefully, J.M.’s aunt took petitioner’s book bag into
the house. Petitioner forced his way in and took the bag, at which point Darby-Jones spat on him.
Petitioner then kicked the door in, knocking Darby-Jones to the floor, and spat on her. The gun
fell out of the bag, and Darby-Jones alerted Brown that petitioner had a gun. Brown first ran
8 No. 1-17-2016
toward petitioner but fled when petitioner pulled out the gun. Petitioner stated that he fired his
gun only in the air and not at Brown to ensure that Brown would continue fleeing.
¶ 29 Petitioner further claimed that his aggregate 47-year sentence, which was imposed when
he was 20 years old, was an unconstitutional de facto life sentence based upon recent Illinois
decisions and his disadvantaged upbringing.
¶ 30 This appeal followed.
¶ 31 ANALYSIS
¶ 32 Petitioner alleges that the circuit court erred in summarily dismissing his postconviction
petition. Petitioner argues that he raised two claims that had at least an arguable factual and legal
basis: first, that his trial counsel was ineffective for failing to investigate his testimony before
advising him to waive his right to testify, and second, that his 47-year aggregate sentence is an
unconstitutional de facto life sentence. He asks that we vacate the court’s summary dismissal and
remand this matter for second-stage proceedings.
¶ 33 The Act allows a petitioner to challenge a conviction or sentence for violations of federal
or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). An action for
postconviction relief is a collateral proceeding rather than an appeal from the underlying judgment.
People v. Williams, 186 Ill. 2d 55, 62 (1999). Principles of res judicata and waiver will limit the
range of issues available to a postconviction petitioner “ ‘to constitutional matters which have not
been, and could not have been, previously adjudicated.’ ” People v. Scott, 194 Ill. 2d 268, 273-74
(2000) (quoting People v. Winsett, 153 Ill. 2d 335, 346 (1992)). Accordingly, rulings on issues
that were previously raised at trial or on direct appeal are res judicata, and issues that could have
been raised in the earlier proceedings, but were not, will ordinarily be deemed waived. Id. at 274;
725 ILCS 5/122-3 (West 2016).
9 No. 1-17-2016
¶ 34 In a noncapital case, postconviction proceedings contain three stages. People v. Tate, 2012
IL 112214, ¶ 9. At the first stage, the circuit court must independently review the petition, taking
the allegations as true, and determine whether the petition is frivolous or is patently without merit.
Id. (quoting People v. Hodges, 234 Ill. 2d 1, 10 (2009) (quoting 725 ILCS 5/122–2.1(a)(2) (West
2006))). A petition may be summarily dismissed as frivolous or patently without merit only if the
petition has no arguable basis either in law or in fact. Id. Since petitioners with little legal
knowledge typically draft most petitions at the first stage, “the threshold for survival [is] low. Id.
¶ 35 The Hodges court, however, explained that its recognition of a low threshold at this stage
“does not mean that a pro se petitioner is excused from providing any factual detail at all
surrounding the alleged constitutional violation.” Hodges, 234 Ill. 2d at 10. To the contrary,
section 122-2 of the Act provides that a petition “shall have attached thereto affidavits, records, or
other evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS
5/122-2 (West 2016). The failure to either attach the necessary “affidavits, records, or other
evidence” or explain their absence is fatal to a postconviction petition, and this failure “by itself”
justifies the petition’s summary dismissal. People v. Collins, 202 Ill. 2d 59, 66 (2002). We review
the circuit court’s summary dismissal of a postconviction petition de novo. Id.
¶ 36 Trial Counsel’s Performance
¶ 37 Petitioner first contends that his trial counsel was constitutionally ineffective for failing to
investigate his intended testimony before advising him to waive his right to testify. Petitioner
notes that, although he wanted to testify, he “acquiesced to his attorney’s uninformed advice and
declined to testify.” Petitioner reasons that his trial attorney’s failure to learn about his testimony
before advising him to waive his right to testify arguably constituted ineffective assistance.
Petitioner adds that he was arguably prejudiced by counsel’s failure to investigate, positing that,
10 No. 1-17-2016
had he testified, there is a reasonable probability that the jury would have believed him over the
State’s “slim evidence” and found him not guilty of either the aggravated criminal sexual assault
charge, the attempted murder charge, or both.
¶ 38 Claims of ineffective assistance of counsel are governed by the familiar standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the supreme court in People v.
Albanese, 104 Ill. 2d 504 (1984). People v. Petrenko, 237 Ill. 2d 490, 496 (2010). To establish
ineffective assistance, a petitioner must show both that (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced the petitioner. Id. Applied to a first-stage
postconviction petition, “a petition alleging ineffective assistance may not be summarily dismissed
if (i) it is arguable that counsel’s performance fell below an objective standard of reasonableness
and (ii) it is arguable that the defendant was prejudiced.” (Emphases added.) Hodges, 234 Ill. 2d
at 16-17. Deficient performance is performance that is objectively unreasonable under prevailing
professional norms, and prejudice is found where there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Petrenko,
237 Ill. 2d at 496-97; Strickland, 466 U.S. at 690, 694. The failure to establish either prong of the
Strickland test is fatal to the claim. People v. Clendenin, 238 Ill. 2d 302, 317-18 (2010) (citing
Strickland, 466 U.S. at 697).
¶ 39 Matters of trial strategy, however, are generally immune from claims of ineffective
assistance of counsel except where the trial strategy results in no meaningful adversarial testing.
People v. West, 187 Ill. 2d 418, 432-33 (1999). In other words, the effective assistance of counsel
merely refers to “competent, not perfect,” representation. People v. Stewart, 104 Ill. 2d 463, 491-
92 (1984). Thus, mistakes in trial strategy, tactics, or judgment will not “of themselves” render a
trial counsel’s representation constitutionally defective. Id. For these reasons, we must be highly
11 No. 1-17-2016
deferential to trial counsel as to trial strategy, and we must evaluate counsel’s performance from
her perspective at the time and not “through the lens of hindsight.” Id.
¶ 40 It is well established, however, that a criminal defendant’s decision whether to testify at
his own trial is a fundamental right, and this decision is thus not a strategic or tactical matter best
left to trial counsel. People v. Daniels, 230 Ill. App. 3d 527, 535 (1992). Nonetheless, trial
counsel’s advice not to testify is a matter of trial strategy and will not constitute ineffective
assistance of counsel absent evidence suggesting that counsel “refused to allow [the petitioner] to
testify.” People v. Youngblood, 389 Ill. App. 3d 209, 217 (2009).
¶ 41 In addition, trial counsel has a duty to make either reasonable investigations or a reasonable
decision that makes a particular investigation unnecessary. Strickland, 466 U.S. at 691. Therefore,
in any claim of ineffectiveness, trial counsel’s decision not to investigate must be examined for its
reasonableness under all the circumstances of the case, “applying a heavy measure of deference to
counsel’s judgments.” Id.
¶ 42 In this case, taking petitioner’s allegations as true, as we must (Tate, 2012 IL 112214, ¶ 9),
his petition reveals that counsel merely advised petitioner against testifying, which was within the
scope of counsel’s representation (see, e.g., Youngblood, 389 Ill. App. 3d at 217 (observing that
the decision whether to testify on one’s own behalf belongs to the defendant but that the decision
should be made with the advice of counsel)). In particular, “counsel is free to urge his professional
opinion on his client [citation], and if the client acquiesces in his counsel’s conduct in this regard
he should be bound by such action.” (Emphasis added.) People v. Knox, 58 Ill. App. 3d 761, 767
(1978). Petitioner’s statement that he “acquiesced” to his trial counsel’s recommendation are
plainly indicative of advice of counsel and not a usurpation of petitioner’s right. Petitioner does
not allege that counsel prevented him from testifying, nor does he claim that he did not know he
12 No. 1-17-2016
had a right to testify. Further, he also does not claim—nor does the record reveal—that he made
a contemporaneous assertion of his right to testify when the defense presented its case. People v.
Enis, 194 Ill. 2d 361, 399 (2000) (holding that the defendant “acquiesced in counsel’s view that
defendant should not take the stand” when he failed to assert this right upon learning at trial that
he would not be called as a witness). Finally, the circuit court admonished petitioner of his right
to testify, which he knowingly waived.
¶ 43 In addition, the substance of petitioner’s proposed testimony, in addition to a general
denial, would have been that he believed J.M. accused him of rape because she still wanted to be
in a relationship with petitioner and was jealous that he had ongoing sexual relationships with other
women. This evidence, however, was substantially presented to the jury when it heard of her
various letters to petitioner in which she wrote that she still loved and missed petitioner and that
“she was ‘damn sure not gonna play 2nd to no bitch!’ ” Banner, 2015 IL App (1st) 132974-
U, ¶¶ 22-23. Ineffective assistance of counsel does not arise from a failure to present cumulative
evidence. See People v. Dupree, 2018 IL 122307, ¶ 51. Petitioner thus failed to make an arguable
claim that counsel’s performance was deficient in advising him not to testify.
¶ 44 Moreover, even assuming that petitioner’s claim met the first prong of the Strickland test,
it did not meet the second. As we noted in his direct appeal, there was “ample” evidence to support
his convictions. Banner, 2015 IL App (1st) 132974-U, ¶¶ 42. First, regarding the sexual assault
conviction, the jury heard J.M. identify petitioner as her attacker (an accusation she never sought
to recant), and J.M.’s recounting of the attack was consistent—J.M. notably refused to agree that
what happened in the bathroom was sex: she clearly stated that it was rape. With respect to the
attempted murder of Brown, J.M. again stated unequivocally that petitioner shot “at” Brown. This
testimony was further corroborated by Darby-Jones’s testimony that, although she did not see
13 No. 1-17-2016
exactly where Brown was, petitioner shot in Brown’s direction. Finally, Brown testified that he
saw petitioner remove the gun from his book bag and point the weapon at him before Brown turned
and fled. Brown did not actually see petitioner fire the gun at him but testified that the shots came
from behind him and that they were close to him. Therefore, in light of this evidence, it is not
even arguable that there is a reasonable probability the outcome of petitioner’s trial would have
changed had petitioner testified as proposed in his affidavit. Petitioner cannot arguably meet both
prongs of the Strickland test, so his ineffective assistance claim necessarily fails. Clendenin, 238
Ill. 2d at 317-18. The circuit court therefore did not err in summarily dismissing his postconviction
petition with respect to this claim.
¶ 45 Petitioner’s Sentence
¶ 46 Petitioner next argues that the circuit court was prohibited from considering the transient
signature qualities of [petitioner’s] youth and rehabilitative potential.” Petitioner states that his
petition raised an arguable claim that his mandatory minimum 47-year sentence was an
unconstitutional de facto life sentence due to the “convergence” of statutorily mandated firearm
enhancements, consecutive sentencing, and truth-in-sentencing provisions. Petitioner asserts that
he raised an arguable basis of a constitutional claim based upon the “evolving neuroscientific
research and consensus on young adult brain development, as well as the flux in the law” as to
what extent the reasoning of Miller v. Alabama, 567 U.S. 460 (2012), applies to individuals over
the age of 18. He asks that we remand this cause for further postconviction proceedings.
¶ 47 Petitioner first contends that Miller, which held that the Eighth Amendment prohibited
mandatory life sentences for offenders under the age of 18, should nonetheless extend to young
adult offenders such as himself. Petitioner argues that the circuit court should not have imposed a
47-year “de facto life sentence” on him without considering various “youth-related factors.”
14 No. 1-17-2016
¶ 48 Petitioner’s claim is unavailing. 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 v. Simmons, 543 U.S. 551, 574 (2005)). The Harris
court further noted that new research findings still did not alter that “traditional line.” Id. The
court then expressed agreement with those courts that had repeatedly rejected this claim and held
that the age of 18 still marked the line between juveniles and adults for sentencing purposes.
Id. ¶ 61. Petitioner would clearly wish to change where that line is drawn but doing so is best left
to the legislature. See generally, People v. Buffer, 2019 IL 122327, ¶¶ 34-35.
¶ 49 Petitioner next contends that his sentence violates the proportionate penalties clause of the
Illinois constitution. This clause provides in relevant part that “All 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) (citing 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).
¶ 50 Petitioner argues that his sentence shocks the moral conscious of the community because
of recent studies on adolescent brain development, various studies on prisoner life expectancy, and
15 No. 1-17-2016
petitioner’s history and rehabilitative potential. Petitioner also argues that, pursuant to our
supreme court’s holding in Harris, his petition must advance for further proceedings.
¶ 51 The 18-year-old defendant in Harris 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.
¶ 52 Here, petitioner argues that he should have the opportunity to develop the record to
determine whether the protections of Miller can apply to a 20-year-old offender. It is well
established, however, that although the threshold for a postconviction petition’s survival at the first
stage of proceedings is low, a pro se petitioner is not excused from providing any factual detail at
all. Hodges, 234 Ill. 2d at 10. As noted above, section 122-2 of the Act requires that a petitioner
either attach affidavits, records, or other evidence supporting the allegations or explain their
absence. 725 ILCS 5/122-2 (West 2016). There is nothing attached to petitioner’s postconviction
petition to support his assertion that his own immaturity or circumstances support his claim that
his sentence is an unconstitutional de facto life sentence. Instead, his petition (but not his affidavit)
merely contains general assertions that immaturity and brain development commonly associated
with juveniles can also extend into young adulthood. Petitioner’s recitation of various general
studies regarding the evolving science of juvenile maturity and development is insufficient to
survive the requirement that his petition must have some factual detail (in the form of affidavits or
other evidence) in support of his claim. Hodges, 234 Ill. 2d at 10.
16 No. 1-17-2016
¶ 53 In addition, while he makes various claims in his petition that he had a troubled childhood,
these claims do not appear in his affidavit, nor are there any affidavits, records, or other evidence
that would provide support for this contention. The purpose of section 122-2’s requirement of
attaching “affidavits, records, or other evidence” to a postconviction petition is that it “shows that
the verified allegations are capable of objective or independent corroboration.” Collins, 202 Ill.
2d at 67. As noted above, this failure by itself justifies the petition’s summary dismissal. Id. at
66. The circuit court therefore did not err in summarily dismissing his petition at the first stage.
¶ 54 Finally, petitioner’s reliance upon People v. House, 2015 IL App (1st) 110580-B, appeal
allowed, No. 125124 (Jan. 29, 2020), is unavailing. In that case, another division of this court
affirmed the circuit court’s granting of the State’s motion to dismiss at the second stage of
proceedings, but nonetheless remanded the matter for a new sentencing hearing. Id. ¶¶ 23, 77.
The court held that the defendant’s mandatory life sentence (following a conviction for murder by
accountability) violated the proportionate penalties clause, where the defendant was 19 years old
at the time of the offense, had no prior violent criminal history, and was minimally culpable since
he acted solely as a lookout. Id. ¶¶ 46, 64. Notably, the House court stated that the defendant’s
1993 conviction under an accountability theory “weighed heavily in our conclusion that his
mandatory natural life sentence shocked the moral conscience of the community.” Id. ¶ 32. The
court further observed that, although the defendant received a mandatory natural life sentence, the
17-year-old codefendant, who “either fired the gun at the victims or struck them with the gun,”
was sentenced to 44 years’ imprisonment with day-for-day good conduct credit and released in
April 2018. Id. ¶¶ 35-36.
¶ 55 Here, petitioner was not convicted based upon mere accountability: petitioner placed a gun
against J.M.’s chin while she was holding her and petitioner’s infant son, forced her into an upstairs
17 No. 1-17-2016
bathroom, raped her, and then later slapped her when she had the temerity to laugh at his attempt
to blame her for both “messing up his life” and his criminal record. J.M. also identified petitioner
as her attacker, never recanted her accusation, and was consistent in recounting the attack and
characterizing it as rape and not sex. As to the attempted murder conviction, J.M. testified that
petitioner shot “at” Brown, Darby-Jones testified that petitioner shot in Brown’s direction, and
Brown testified that he saw petitioner point the gun at him before he fled. Brown further stated
that the shots came from behind him and were close to him.
¶ 56 Finally, we note that House involved a second-stage dismissal following the appointment
of counsel and the amendment of the defendant’s petition, which included a witness’s affidavit
and other “newly discovered evidence of police misconduct.” House, 2015 IL App (1st)
110580-B, ¶¶ 23, 34. This case concerns proceedings at the first stage and lacked evidentiary
support, which alone can justify summary dismissal. Hodges, 234 Ill. 2d at 10; Collins, 202 Ill.
2d at 66. Consequently, House is distinguishable, and we cannot hold that petitioner’s sentence
shocks the moral sense of the community. Petitioner therefore cannot make an arguable claim that
his minimum 47-year sentence is an unconstitutional de facto life sentence.
¶ 57 CONCLUSION
¶ 58 Petitioner’s trial counsel did not render ineffective assistance for allegedly failing to
investigate petitioner’s proposed testimony prior to advising him not to testify. In addition,
petitioner’s 47-year aggregate sentence is not an unconstitutional de facto life sentence. The circuit
court thus did not err in summarily dismissing petitioner’s petition for postconviction relief.
¶ 59 Affirmed.