People v. Byrd

2023 IL App (4th) 220957-U

Opinion

NOTICE 2023 IL App (4th) 220957-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-22-0957 November 20, 2023 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County MARK BYRD, ) No. 96CF1597 Defendant-Appellant. ) ) Honorable ) Randy Wilt, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Presiding Justice DeArmond and Justice Turner concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in denying defendant leave to file a successive postconviction petition.

¶2 In October 2021, defendant, Mark Byrd, filed a pro se motion for leave to file a

successive postconviction petition, arguing his natural-life sentence, imposed under an earlier

version of the Habitual Criminal Act (720 ILCS 5/33B-1 (West 1996) (recodified as amended at

730 ILCS 5/5-4.5-95(a))), violates the proportionate-penalties clause of the Illinois Constitution

(Ill. Const. 1970, art. I, § 11). Upon finding defendant failed to establish cause for failure to raise

the issue earlier, the trial court denied defendant leave. Defendant appeals, arguing a recent

amendment to the Habitual Criminal Act, which authorizes a natural-life sentence only when an

offender was at least 21 years old at the time of the first predicate offense (Pub. Act 101-652,

§ 10-281 (eff. July 1, 2021) (amending 730 ILCS 5/5-4.5-95(a)), evidences a change in community standards around recidivist sentencing of youth and establishes his sentence violates

the proportionate-penalties clause. We affirm.

¶3 I. BACKGROUND

¶4 After a jury trial for a shooting that occurred in June 1996, defendant was found

guilty of first degree murder (720 ILCS 5/9-1(a)(2) (West 1996)). Before sentencing, the State

asked the trial court to sentence defendant under the Habitual Criminal Act to a prison term of

natural life. In support of its motion, the State attached evidence showing defendant had two

previous convictions for Class X offenses, an October 1977 armed-robbery conviction and a May

1981 armed-robbery conviction. In June 1999, the court sentenced defendant, born in November

1960, to natural-life imprisonment. At the time of defendant’s sentencing, the Habitual Criminal

Act included as predicate offenses those committed when the offender was under the age of 21.

See 720 ILCS 5/33B-1 (West 1996).

¶5 Since his conviction, defendant has asserted multiple legal challenges. These legal

challenges include a direct appeal, a postconviction petition, and two other attempts to obtain

leave to file a successive postconviction petition. The latest of those challenges occurred in June

2015.

¶6 In July 2021, the General Assembly amended the Habitual Criminal Act. Pub. Act

101-652, § 10-281 (eff. July 1, 2021) (amending 730 ILCS 5/5-4.5-95(a). The general recidivism

provisions that allow for an offender to be adjudged a habitual criminal does not apply unless,

among other criteria, “[t]he first offense was committed when the person was 21 years of age or

older.” 730 ILCS 5/5-4.5-95(a)(4)(E) (West 2020).

¶7 Approximately three months after the 2021 amendment, defendant filed a pro se

motion for leave to file a successive postconviction petition. In this motion, defendant

-2- emphasized he was 16 and 20 years old when convicted of the two predicate offenses. Defendant

alleged the amendment embraced the “ ‘new scientific’ studies of immaturity in adolescents

under the age of (21).” Defendant further alleged: “The new legislation conforms to the Illinois

proportionate[-]penalties clause, of restoring offenders back to useful citizenship—while the old

habitual criminal statute does not take into consideration the immaturity in adolescents

offenders—to the point of not allowing the juvenile offenses to condemn them by the time they

reach adulthood.” Defendant concluded by arguing the statute, as applied to him, violates the

proportionate-penalties clause.

¶8 In November 2021, the trial court granted defendant leave to file a successive

postconviction petition for first-stage review. The court found defendant satisfied the cause-and-

prejudice test and ruled defendant’s claims were limited to consideration of essentially two

issues: (1) whether the amendment to the Habitual Criminal Act is retroactive and (2) whether

defendant’s sentence violates the proportionate-penalties clause as two of his offenses were

committed before his twenty-first birthday. After defendant filed his successive petition, the

court advanced the petition for second-stage review.

¶9 At the second stage of postconviction proceedings, the State moved to dismiss

defendant’s successive postconviction petition; the trial court granted that motion. The court

found, in part, defendant failed to establish cause for his failure to raise the

proportionate-penalties claim before his third successive postconviction petition. The court noted

defendant’s last petition was filed in 2015, “years after Miller [v. Alabama, 567 U.S. 460

(2012)].” The court further found the amendment to the Habitual Criminal Act is not retroactive.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

-3- ¶ 12 On appeal, defendant argues the trial court erred in dismissing his third successive

postconviction petition, as he has made a substantial showing of a constitutional violation.

¶ 13 The Post-Conviction Hearing Act (Postconviction Act) provides prisoners the

means to challenge the proceedings that resulted in their convictions by asserting claims of a

substantial denial of constitutional rights in those proceedings. 725 ILCS 5/122-1(a)(1) (West

2020). The Act, however, contemplates the filing of just one postconviction petition. People v.

Dorsey, 2021 IL 123010, ¶ 32, 183 N.E.3d 715.

¶ 14 If a petitioner makes multiple challenges under the Postconviction Act, i.e., files a

successive postconviction petition, he or she must seek leave of court and overcome “ ‘immense

procedural default hurdles.’ ” Id. (quoting People v. Davis, 2014 IL 115595, ¶ 14, 6 N.E.3d 709).

To overcome these hurdles, a defendant must make a prima facie showing of “cause” for his

failure to raise the claim in his initial postconviction petition and “prejudice” resulting from that

failure. Id.; see People v. Bailey, 2017 IL 121450, ¶ 24, 102 N.E.3d 114. To prove “cause,” a

defendant must identify an objective factor that impeded his ability to raise the claim earlier.

Dorsey, 2021 IL 123010, ¶ 32. One such objective factor is proof the legal basis for that claim

was not reasonably available to the defendant, i.e., the legal basis is “novel.” People v. Haines,

2021 IL App (4th) 190612, ¶¶ 43-44, 188 N.E.3d 825. In the context of successive

postconviction petitions, a novel legal rule will be sufficient cause for the procedural default

“only if the petitioner did not have the legal tools to construct the claim before the rule was

issued.” Id. ¶ 44 (quoting Waldrop v. Jones, 77 F.3d 1308, 1315 (11th Cir. 1996)).

¶ 15 Leave to file a successive postconviction petition should be denied when a review

of the record, petition, and supporting documents makes clear the claims in that petition fail as a

matter of law or are insufficient to warrant additional proceedings. Dorsey, 2021 IL 123010,

-4- ¶ 33. Our review of the denial of leave to file a successive postconviction petition is de novo. Id.

¶ 16 In his motion for leave to file a successive postconviction petition, the

constitutional error defendant alleged is a violation of the proportionate-penalties clause of the

Illinois Constitution (Ill. Const. 1970, art. I, § 11) in that his life sentence is “cruel, degrading, or

so wholly disproportionate to the offense committed as to shock the moral sense of the

community.” People v. Brown, 375 Ill. App. 3d 1116, 1118, 874 N.E.2d 607, 608-09 (2007)

(setting forth the means by which one may prove his or her punishment violates the

proportionate-penalties clause). The question of whether a punishment is cruel, degrading, or

wholly disproportionate is based on evolving “concepts of elemental decency and fairness which

shape the ‘moral sense’ of the community.” People v. Miller, 202 Ill. 2d 328, 339, 781 N.E.2d

300, 307-08 (2002). Legislation enacted by our country’s legislatures provides the most reliable

objective evidence of the community’s moral sense. See Graham v. Florida, 560 U.S. 48, 62

(2010).

¶ 17 Defendant’s proportionality argument asks us to review the severity of his life

sentence “within our community’s evolving standard of decency.” See Miller, 202 Ill. 2d at 340.

Our community’s moral sense regarding juvenile sentencing has unquestionably evolved over

time. See People v. Aceituno, 2022 IL App (1st) 172116, ¶¶ 17-18, 216 N.E.3d 237. The

amendment to the Habitual Criminal Act to limit natural-life sentences for habitual offenders is

just one example of that evolution. See Pub. Act 101-652, § 10-281 (eff. July 1, 2021) (amending

730 ILCS 5/5-4.5-95(a)). As stated above, there were no age restrictions when defendant was

sentenced as a habitual criminal offender based on offenses he committed while under age 21.

Since the 2021 amendment, however, an offender may be adjudged a habitual criminal offender

only when “[t]he first offense was committed when the person was 21 years of age or older.” 730

-5- ILCS 5/5-4.5-95(a)(4)(E) (West 2020).

¶ 18 Defendant asserts he established “cause” as the 2021 amendment is “novel” and

this legal basis for his claim was not reasonably available to him before he sought leave to file a

successive postconviction petition. Defendant acknowledges this court recently rejected a similar

claim in People v. Simmons, 2023 IL App (4th) 220693-U, ¶¶ 31, 35, but urges us to revisit that

analysis and find cause established as the amendment is the basis for his claim.

¶ 19 Simmons presents a fact pattern remarkably similar to the one here with, as

defendant acknowledges, a finding contrary to defendant’s position. In Simmons, the defendant

was found guilty of committing armed robbery and unlawful possession of a weapon by a felon

in October 1996, when he was 24 years old. Id. ¶ 4. Because of two previous offenses committed

when he was 16 and 20 (id. ¶ 10), the defendant was sentenced to natural life as a habitual

offender. Id. ¶¶ 5-6. In July 2022, the Simmons defendant sought leave to file a successive

postconviction petition to raise a claim his sentence, based on the 2021 amendment to the

Habitual Criminal Act, violated the proportionate-penalties clause as applied to him. Id. ¶ 10.

The defendant argued the amendment reflected: “(1) a growing understanding of the link

between youth and brain immaturity, impulse control, and decision making; (2) ‘a growing

recognition that young people’s brains continue[ ] to develop well into their twenties’; and

(3) that the potential for rehabilitation must be considered by a sentencing court.” Id. The

defendant further argued he could not have raised this claim earlier as the legislature had not yet

amended the Habitual Criminal Act. Id. ¶ 11. The trial court denied his motion for leave upon

finding the defendant failed to satisfy the cause-and-prejudice test. Id. ¶ 12.

¶ 20 On appeal, this court agreed with the Simmons trial court, finding, in part, the

defendant failed to establish cause for not having earlier raised his proportionate-penalties claim.

-6- Id. ¶ 33. Our analysis began by referencing Miller and its progeny. Id. ¶ 26. We noted Miller,

which held the eighth amendment (U.S. Const., amend. VIII) barred sentencing schemes that

mandate life imprisonment without the possibility of parole for juvenile offenders, was based on

findings “ ‘juveniles have diminished culpability and greater prospects for reform’ and ***

‘mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s

age and the wealth of characteristics and circumstances attendant to it.’ ” Simmons, 2023 IL App

(4th) 220693-U, ¶ 26 (quoting Miller, 567 U.S. at 471, 476, 479). We then noted the Illinois

Supreme Court found the unavailability of Miller insufficient to establish “cause” for the failure

to raise a proportionate-penalties claim before 2012, as “ ‘Illinois courts have long recognized

the differences between persons of mature age and those who are minors for purposes of

sentencing.’ ” Simmons, 2023 IL App (4th) 220693-U, ¶ 27 (quoting Dorsey, 2021 IL 123010,

¶¶ 23-24, 74). After summarizing other Illinois decisions, we found the Simmons defendant

similarly had the legal tools necessary to construct his claim in earlier postconviction

proceedings:

“Like the defendant in [People v. Kuehner, 2022 IL App

(4th) 200325, ¶ 106], defendant in this case argues a recent

statutory amendment provides evidence of how society’s treatment

of juvenile and young-adult offenders has evolved from the time of

his sentencing in 1997. However, Illinois has long recognized that

youthful offenders are developmentally different from older adult

offenders. Accordingly, defendant had the ability to construct his

proportionate[-]penalties claim at the time of his earlier

postconviction proceedings. Neither the unavailability of Miller [v.

-7- Alabama, 567 U.S. 460 (2012)], nor the 2021 amendment to the

Habitual Criminal Act provides ‘cause’ for his failure to previously

raise that claim.” Id. ¶ 31.

We further rejected the contention the defendant’s claim based on the 2021 amendment was

“novel,” concluding “the fact that developmental differences exist between youthful offenders

and offenders who are mature adults[ ] and that such differences are relevant to sentencing

considerations[ ] are not novel concepts under Illinois law.” Id. ¶¶ 32-33.

¶ 21 Defendant asks this court to revisit Simmons by emphasizing our reliance on

Kuehner in Simmons is misplaced. Defendant contends the legislative amendments referenced in

Kuehner were collateral to the underlying issue, while here he contends he is entitled to relief

because the legislature amended the statute by which he was sentenced.

¶ 22 We are not convinced. In Kuehner, the defendant, who was 17 years old when he

committed murder and home invasion, argued his 35-year sentence violated the

proportionate-penalties clause and the eighth amendment. Kuehner, 2022 IL App (4th) 200325,

¶¶ 1, 5. To demonstrate the “societal shift toward more lenient treatment of juvenile offenders,”

defendant cited three legislative changes. Id. ¶ 100. These changes included the extension of the

cutoff date for juvenile jurisdiction from an offender’s seventeenth birthday to his or her

eighteenth birthday, the codification of the juvenile-sentencing factors of Miller, and the

opportunities for parole for offenders under the age of 21. See id. We acknowledged these

amendments “would have made it easier for him to prove his claim,” but we concluded “he was

not foreclosed from bringing that claim earlier.” Id. ¶ 106.

¶ 23 Here, first, we reject the claim defendant is entitled to relief “because the

legislature amended the statute under which he was sentenced.” (Emphasis in original.)

-8- Defendant concedes he is not arguing the amendment applies retroactively. At best, the 2021

amendment provides an example of the societal shift toward more lenient sentencing of youthful

offenders that would have made it easier to prove his claim. We agree with the analysis in

Simmons—the amendment is not novel.

¶ 24 We find Simmons persuasive. Defendant has not shown “cause” for his failure to

raise his proportionate-penalties claim. The trial court did not err in denying his request for leave

to file a successive postconviction petition.

¶ 25 III. CONCLUSION

¶ 26 We affirm the trial court’s judgment.

¶ 27 Affirmed.

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