NOTICE 2023 IL App (4th) 230078-U FILED This Order was filed under October 4, 2023 Supreme Court Rule 23 and is NO. 4-23-0078 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County DEEARLISE CHILDROUS, ) No. 88CF321 Defendant-Appellant. ) ) Honorable ) John M. Madonia, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Harris and Knecht concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err by dismissing defendant’s fifth successive postconviction petition at the second stage of the postconviction proceedings, and defendant was not denied reasonable assistance of counsel.
¶2 Defendant, Deearlise Childrous, appeals the Sangamon County circuit court’s
January 12, 2023, order granting the State’s motion to dismiss his fifth successive postconviction
petition. On appeal, defendant asserts (1) he made a substantial showing his natural life sentence
is unconstitutional under the proportionate penalties clause of the Illinois Constitution of 1970
(Ill. Const. 1970, art. I, § 11) as applied to him and (2) he was denied the reasonable assistance of
postconviction counsel. We affirm.
¶3 I. BACKGROUND
¶4 In September 1988, a jury found defendant guilty of the April 8, 1988, first degree
murder (Ill. Rev. Stat. 1987, ch. 38, ¶ 9-1(a)(1)) and armed robbery (Ill. Rev. Stat. 1987, ch. 38, ¶ 18-2(a)) of Beth Akers. The evidence showed defendant and Tommy Coleman were after
Akers’s purse and they shot Akers when she would not let go of the purse. Coleman told Jeffrey
Kimble, who was defendant’s aunt’s boyfriend, defendant was the shooter. Defendant also made
statements to several fellow jail inmates indicating he was the shooter. In September 1988, the
circuit court held a hearing on defendant’s eligibility for the death penalty. The jury
unanimously found defendant was eligible for the death penalty but did not unanimously find
there were no mitigating factors sufficient to preclude a death sentence. In October 1988, the
circuit court held defendant’s sentencing hearing and sentenced him to concurrent prison terms
of natural life for first degree murder and 30 years for armed robbery. The presentence
investigation report stated the following: “Since becoming a teenager, the defendant has spent
most all of his time in the juvenile legal system. He has never attended high school, has not been
employed and basically hasn’t taken much responsibility or control over his life.” The report
was lengthy and gave additional insights into defendant’s childhood and criminal record. It also
stated defendant was born in January 1969. Defense counsel asked for a term of years and
pointed out defendant was basically a minor and had family support. In March 1990, this court
affirmed defendant’s conviction and sentence. People v. Childrous, 196 Ill. App. 3d 38, 552
N.E.2d 1252 (1990). Defendant filed a petition for leave to appeal, which the supreme court
denied. People v. Childrous, 133 Ill. 2d 562, 561 N.E.2d 696 (1990) (table).
¶5 Defendant filed pro se a petition for writ of mandamus in June 1992. The circuit
court appointed defendant counsel because of the relief the petition sought, and in March 1993,
counsel chose to file an amended petition for postconviction relief. The circuit court dismissed
the amended petition because it was not timely filed. Defendant appealed, but in March 1994,
this court allowed defendant’s pro se motion to dismiss his appeal. People v. Childrous, No.
-2- 4-93-0299 (Mar. 7, 1994) (unpublished motion order under Illinois Supreme Court Rule 23).
¶6 In April 1998, defendant filed his second postconviction petition, which the
circuit court dismissed as frivolous. One year later, this court affirmed the circuit court’s
dismissal of defendant’s second postconviction petition because it was untimely filed. People v.
Childrous, 303 Ill. App. 3d 1119, 747 N.E.2d 1115 (1999) (table). Defendant then filed his third
postconviction petition in January 2001. The circuit court also dismissed that petition. In June
2003, this court affirmed the circuit court’s dismissal of defendant’s third postconviction
petition. People v. Childrous, No. 4-01-0766 (June 11, 2003) (unpublished summary order under
Illinois Supreme Court Rule 23(c)).
¶7 In July 2003, defendant filed pro se a motion for discovery, a motion to file an
untimely postconviction petition, and a fourth postconviction petition. In the fourth
postconviction petition, defendant (1) alleged two witnesses committed perjury, (2) asserted trial
counsel was ineffective, and (3) included a claim of actual innocence. In December 2010,
defendant was given 45 days to file an amended fourth postconviction petition, which he did.
Defendant’s amended fourth postconviction petition contained 19 claims. On the State’s motion,
the circuit court dismissed defendant’s amended fourth postconviction petition in an April 2011
written order. Defendant appealed, and this court affirmed the dismissal. People v. Childrous,
2012 IL App (4th) 110372-U.
¶8 Defendant filed pro se his motion for leave to file a fifth successive
postconviction petition in January 2015. Defendant filed numerous pleadings, and the State was
improperly allowed to respond. Ultimately, on September 5, 2017, the circuit court entered a
written order denying defendant leave to file a fifth successive postconviction petition.
Defendant appealed and only asserted the circuit court erred by denying his request for leave to
-3- file his as-applied constitutional challenge to his natural life sentence. This court agreed with
defendant and reversed the circuit court’s denial of defendant’s motion for leave to file his as-
applied constitutional challenge in his proposed fifth successive postconviction petition, affirmed
the court’s judgment in all other respects, and remanded the cause for further postconviction
proceedings consistent with our decision. People v. Childrous, 2019 IL App (4th) 170687-U,
¶ 37.
¶9 On remand, defendant filed his fifth successive postconviction petition asserting
his natural life sentence was unconstitutional based on the United States Supreme Court’s
decision in Miller v. Alabama, 567 U.S. 460 (2012). The State filed a motion to dismiss
defendant’s fifth successive postconviction petition because defendant was not a juvenile at the
time he committed the offenses. Appointed postconviction counsel filed a motion to withdraw as
counsel. At a June 2020 hearing, defendant expressed his frustration with appointed counsel.
After Judge Eric Pistorius discussed the matter with defendant and his counsel, counsel withdrew
his motion to withdraw, and defendant agreed to continue to be represented by his appointed
counsel. Also, during the hearing, Judge Pistorius indicated defendant should be assessed by a
clinical psychologist inquiring into the Miller factors and how they apply to defendant. Judge
Pistorius entered an order declining to grant the State’s motion to dismiss, giving postconviction
counsel leave to supplement the successive petition by retaining an expert clinical psychologist
to conduct an assessment, and noting the matter remained at the second stage of the proceedings.
At an October 2020 hearing, postconviction counsel stated he had obtained a clinical
psychologist to evaluate defendant, and Judge Pistorius approved of the expert. Judge Pistorius
also announced his retirement in December 2020. The case was not assigned to another judge at
that time, and the expert evaluation was not scheduled.
-4- ¶ 10 On July 6, 2021, defendant filed pro se a motion to compel the court-ordered
evaluation noting he had written postconviction counsel several times inquiring about the
evaluation and had received no response. On January 14, 2022, the case was assigned to Judge
John Madonia. In March 2022, defendant filed pro se a motion for new counsel and a motion for
sanctions against postconviction counsel because he had still not been evaluated. In May 2022,
the State filed a supplement to its motion to dismiss citing new case law. Defendant filed pro se
a motion to strike the State’s supplemental motion to dismiss and a motion to remove
postconviction counsel due to unreasonable assistance of counsel. At an August 2022 hearing,
Judge Madonia granted defendant’s request to proceed pro se. Judge Madonia also questioned
defendant’s proportionate penalties claim because defendant was 19 years old at the time of the
offense and expressed his doubts Judge Pistorius’s order should stand. Thereafter, defendant
filed pro se a successive postconviction petition and a motion to continue the appointment of an
expert.
¶ 11 In September 2022, Judge Madonia heard arguments on the pending motions and
took the matter under advisement. On January 12, 2023, Judge Madonia entered his written
order granting the State’s motion to dismiss and denying defendant’s motion to continue the
appointment of a psychiatric expert. As to defendant’s claim his sentence was unconstitutional
for violating the Illinois Constitution’s proportionate penalties clause as applied, Judge Madonia
found it was “forfeited.” He explained the most recent cases required defendant to bring his as-
applied, proportionate penalties clause challenge at the earliest opportunity. Judge Madonia
acknowledged the line of cases cited in the State’s motion to dismiss were rooted in the cause
and prejudice analysis applicable to a request to file a successive petition. He further noted
defendant had the tools available to raise his as-applied proportionate penalties claim much
-5- earlier in his posttrial proceedings, including in any of his successive petitions filed in at least
2001, 2003, or 2011.
¶ 12 On January 26, 2023, defendant filed his timely notice of appeal in sufficient
compliance with Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021). See Ill. S. Ct. R. 651(d)
(eff. July 1, 2017) (providing the procedure for appeals in postconviction proceedings is in
accordance with the rules governing criminal appeals). Thus, we have jurisdiction of
defendant’s appeal under Illinois Supreme Court Rule 651(a) (eff. July 1, 2017).
¶ 13 II. ANALYSIS
¶ 14 Defendant appeals the dismissal of his postconviction petition at the second stage
of the proceedings contending he made a substantial showing his sentence was unconstitutional.
The State disagrees and asserts defendant could have raised this issue earlier.
¶ 15 The Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 et seq.
(West 2020)) provides a remedy for defendants who have suffered a substantial violation of their
constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471, 861 N.E.2d 999, 1007
(2006). In cases not involving the death penalty, the Postconviction Act sets forth three stages of
proceedings. Pendleton, 223 Ill. 2d at 471-72, 861 N.E.2d at 1007. At the first stage, the circuit
court independently reviews the defendant’s postconviction petition and determines whether “the
petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2020). If it
finds the petition is frivolous or patently without merit, the court must dismiss the petition. 725
ILCS 5/122-2.1(a)(2) (West 2020). If the court does not dismiss the petition, it proceeds to the
second stage, where the court may appoint counsel for an indigent defendant. Pendleton, 223 Ill.
2d at 472, 861 N.E.2d at 1007. Defense counsel may amend the defendant’s petition to ensure
his or her contentions are adequately presented. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at
-6- 1007. Also, at the second stage, the State may file a motion to dismiss the defendant’s petition
or an answer to it. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1008. If the State does not file a
motion to dismiss or the court denies such a motion, the petition advances to the third stage,
wherein the court holds a hearing at which the defendant may present evidence in support of his
or her petition. Pendleton, 223 Ill. 2d at 472-73, 861 N.E.2d at 1008. At both the second and
third stages of the postconviction proceedings, “the defendant bears the burden of making a
substantial showing of a constitutional violation.” Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at
1008. A substantial showing means the allegations, if proven at an evidentiary hearing, would
entitle the petitioner to relief. People v. Domagala, 2013 IL 113688, ¶ 35, 987 N.E.2d 767. In
this case, the State did file a motion to dismiss, and the court granted that motion.
¶ 16 With the second stage of the postconviction proceedings, the circuit court is
concerned merely with determining whether the petition’s allegations sufficiently demonstrate a
constitutional infirmity that would necessitate relief under the Postconviction Act. People v.
Coleman, 183 Ill. 2d 366, 380, 701 N.E.2d 1063, 1071 (1998). At this stage, “all well-pleaded
facts that are not positively rebutted by the trial record are to be taken as true.” Pendleton, 223
Ill. 2d at 473, 861 N.E.2d at 1008. The court reviews the petition’s factual sufficiency as well as
its legal sufficiency in light of the trial court record and applicable law. People v. Alberts, 383
Ill. App. 3d 374, 377, 890 N.E.2d 1208, 1212 (2008). However, when a petitioner’s claims are
based upon matters outside the record, our supreme court has emphasized the Postconviction Act
does not intend such claims be adjudicated on the pleadings. People v. Simms, 192 Ill. 2d 348,
360, 736 N.E.2d 1092, 1105 (2000). At a dismissal hearing, the court is prohibited from
engaging in any fact finding. Coleman, 183 Ill. 2d at 380-81, 701 N.E.2d at 1071. Thus, the
dismissal of a postconviction petition at the second stage is warranted only when the allegations
-7- in the petition, liberally construed in light of the trial record, fail to make a substantial showing
of a constitutional violation. Coleman, 183 Ill. 2d at 388, 701 N.E.2d at 1075. We review
de novo the circuit court’s dismissal of a postconviction petition at the second stage. Pendleton,
223 Ill. 2d at 473, 861 N.E.2d at 1008.
¶ 17 Additionally, the Postconviction Act contemplates the filing of only one
postconviction petition. People v. Bailey, 2017 IL 121450, ¶ 15, 102 N.E.3d 114. Specifically,
section 122-3 of the Postconviction Act (725 ILCS 5/122-3 (West 2020)) declares “[a]ny claim
of substantial denial of constitutional rights not raised in the original or an amended petition is
waived.” Section 122-1(f) of the Postconviction Act (725 ILCS 5/122-1(f) (West 2020))
represents an exception to the waiver rule. See Bailey, 2017 IL 121450, ¶ 15. It provides the
following:
“Only one petition may be filed by a petitioner under this Article
without leave of the court. Leave of court may be granted only if a
petitioner demonstrates cause for his or her failure to bring the
claim in his or her initial post-conviction proceedings and
prejudice results from that failure. For purposes of this subsection
(f): (1) a prisoner shows cause by identifying an objective factor
that impeded his or her ability to raise a specific claim during his
or her initial post-conviction proceedings; and (2) a prisoner shows
prejudice by demonstrating that the claim not raised during his or
her initial post-conviction proceedings so infected the trial that the
resulting conviction or sentence violated due process.” 725 ILCS
5/122-1(f) (West 2020).
-8- Thus, for a defendant to obtain leave to file a successive postconviction petition, both prongs of
the cause and prejudice test must be satisfied. People v. Guerrero, 2012 IL 112020, ¶ 15, 963
N.E.2d 909. At the second stage of the postconviction proceedings, the State may seek a
dismissal thereof on any grounds, including the defendant’s failure to prove cause and prejudice
for not having raised the claims in the initial postconviction petition. Bailey, 2017 IL 121450,
¶ 26.
¶ 18 A. Cause and Prejudice
¶ 19 Since this court remanded defendant’s case for further proceedings, the case law
in this area has continued to evolve. In its most recent case, our supreme court addressed the
appeals of two defendants who were both 19 years old when they committed murder and seeking
reversals of the denial of their leave to file successive postconviction petitions challenging their
sentences. People v. Moore, 2023 IL 126461, ¶ 1. One of the defendants had filed his original
postconviction petition in 2006, and the other defendant filed his in 2001. Moore, 2023 IL
126461, ¶¶ 14, 25. In their petitions for leave to file a successive postconviction petition, the
defendants argued the Miller decision gave them cause to challenge the constitutionality of their
sentences under the proportionate penalties clause of the Illinois Constitution. Moore, 2023 IL
126461, ¶ 40. The supreme court noted Miller did not directly apply to young adults and did not
present new proportionate penalties clause principles with respect to discretionary sentencing of
young adult offenders. Moore, 2023 IL 126461, ¶¶ 40, 42. It explained, “long before Miller,
Illinois law recognized the special status of juvenile offenders for purposes of applying the
principles under the proportionate penalties clause.” (Internal quotation marks omitted.) Moore,
2023 IL 126461, ¶ 41. Moreover, the court pointed out the evidence and arguments raised at the
sentencing hearings for both of the defendants showed the parties knew “Illinois law recognized
-9- the special status of young adults, especially those subject to adverse influences, for purposes of
applying the principles of the proportionate penalties clause.” Moore, 2023 IL 126461, ¶ 42. As
such, the defendants had the essential legal tools to raise their present proposed claim under the
proportionate-penalties clause when they filed their “previous postconviction petitions.”
(Internal quotation marks omitted.) Moore, 2023 IL 126461, ¶ 42. The supreme court concluded
both of the defendants had not sufficiently alleged facts presenting a prima facie case showing
cause and affirmed both denials of the motions for leave to file the successive postconviction
petitions. Moore, 2023 IL 126461, ¶ 42.
¶ 20 Defendant recognizes the supreme court’s decision in Moore but asserts it was
neither reasonably nor “legally correct” to suggest young adult offenders had a legal obligation
to raise a proportionate penalties claim before Miller, which was decided in 2012. Defendant
does not attempt to distinguish Moore from his case. We find Moore is the current state of the
law in Illinois for young adult defendants raising proportionate penalties challenges, and under
Moore, defendant failed to make a substantial showing of cause. As such, we find the circuit
court properly dismissed defendant’s successive postconviction petition.
¶ 21 Defendant also contends he was denied the reasonable assistance of
postconviction counsel. Specifically, defendant contends the delay in counsel obtaining a court-
ordered evaluation of how the Miller factors applied to him was unreasonable assistance of
counsel. The State disagrees.
¶ 22 In postconviction proceedings, the right to counsel is wholly statutory, and the
Postconviction Act only requires counsel to provide a defendant with a “ ‘reasonable level of
assistance.’ ” People v. Lander, 215 Ill. 2d 577, 583, 831 N.E.2d 596, 600 (2005) (quoting
People v. Owens, 139 Ill. 2d 351, 364, 564 N.E.2d 1184, 1189 (1990)). Illinois Supreme Court
- 10 - Rule 651(c) (eff. July 1, 2017) “imposes specific obligations on postconviction counsel to assure
the reasonable level of assistance required by the [Postconviction] Act.” Lander, 215 Ill. 2d at
584, 831 N.E.2d at 600. Under that rule, postconviction counsel must (1) consult with the
defendant either by mail or in person to ascertain the contentions of deprivation of constitutional
rights, (2) examine the record of the circuit court proceedings, and (3) make any amendments to
the pro se petition necessary for an adequate presentation of the defendant’s contentions. People
v. Perkins, 229 Ill. 2d 34, 42, 890 N.E.2d 398, 403 (2007). The defendant bears the burden of
demonstrating his attorney failed to comply with the duties mandated in Rule 651(c). People v.
Jones, 2011 IL App (1st) 092529, ¶ 23, 955 N.E.2d 1200. Our supreme court has consistently
held remand is required when postconviction counsel failed to complete any one of the above
duties, “regardless of whether the claims raised in the petition had merit.” People v. Suarez, 224
Ill. 2d 37, 47, 862 N.E.2d 977, 982 (2007). This court reviews de novo whether an attorney
complied with Rule 651(c). People v. Blanchard, 2015 IL App (1st) 132281, ¶ 15, 43 N.E.3d
1077.
¶ 23 Defendant suggests unreasonable delay alone can constitute unreasonable
assistance. In support of his assertion, he cites People v. Kelly, 2012 IL App (1st) 101521, 977
N.E.2d 858. However, in that case, the delay was 12 years, and counsel failed to shape one of
the defendant’s arguments into an appropriate form in violation of the requirements of Rule
651(c). Kelly, 2012 IL App (1st) 101521, ¶ 40. The other cases defendant cites simply
expressed frustration with the delay in postconviction proceedings. See People v. Bryant, 2022
IL App (2d) 200279, ¶ 26 (noting it was difficult to reconcile the reasonable assistance standard
in evaluating counsel’s performance with “the glacial pace of postconviction litigation in this
case”); People v. Harper, 2013 IL App (1st) 102181, ¶ 31, 987 N.E.2d 954 (recognizing, with
- 11 - postconviction proceedings, the “extraordinarily lengthy passage of time” presented significant
issues which impacted the truth-seeking process). In this case, the postconviction proceedings
on remand lasted less than three years and were impacted by a judge’s retirement. Thus, this
case is not similar to the cases cited by defendant.
¶ 24 Moreover, defendant fails to identify what Rule 651(c) duty counsel failed to
comply with. As noted by the circuit court, the benefit to defendant’s fifth successive
postconviction petition from the psychiatric examination ordered by a previous judge in June
2020 is purely speculative. Thus, defendant has failed to meet his burden of demonstrating
postconviction counsel failed to fulfill his Rule 651(c) duties.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the Sangamon County circuit court’s dismissal
of defendant’s fifth successive postconviction petition.
¶ 27 Affirmed.
- 12 -