People v. Clark

2021 IL App (3d) 180610

Opinion

2021 IL App (3d) 180610

Opinion filed May 11, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 9th Judicial Circuit, ) Knox County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0610 v. ) Circuit No. 93-CF-39 ) ROBERT M. CLARK, ) Honorable ) Scott Shipplett, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE DAUGHERITY delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion. Presiding Justice McDade dissented, with opinion. ____________________________________________________________________________

OPINION

¶1 Defendant, Robert M. Clark, appeals the Knox County circuit court’s denial of his motion

for leave to file a successive postconviction petition. Defendant argues he satisfied the cause and

prejudice test necessary to warrant leave to file a successive postconviction petition because his

motion relied on case law that did not exist when he filed his prior postconviction petitions, and

because his motion argued that his sentence is unconstitutional as applied to him, as the circuit

court failed to take into account defendant’s intellectual disability, fetal alcohol syndrome,

borderline personality disorder, and antisocial personality disorder during sentencing. We affirm. ¶2 I. BACKGROUND

¶3 On December 13, 1993, defendant pled guilty but mentally ill to first degree murder (720

ILCS 5/9-1(a)(1) (West 1992)) and robbery (id. § 18-1). The factual basis for the plea showed

that defendant entered the victim’s apartment with the intent to commit robbery. When the

victim confronted him, defendant killed her and completed the robbery. The evidence showed

that defendant was 24 years old at the time, and that he suffered from antisocial personality

disorder, borderline personality disorder, and fetal alcohol syndrome.

¶4 The circuit court accepted defendant’s guilty plea and sentenced him to an extended term

of 90 years’ imprisonment for first degree murder because the victim was over 60 years old, and

15 years’ imprisonment for robbery, to be served consecutively in accordance with section 5-8-

4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1992)). We affirmed

defendant’s convictions and sentence on direct appeal. People v. Clark, No. 3-94-0148 (1996)

(unpublished order under Illinois Supreme Court Rule 23).

¶5 On May 1, 2001, defendant filed a postconviction petition, arguing that his sentence

violated Apprendi v. New Jersey, 530 U.S 466 (2000), his trial counsel provided ineffective

assistance by coercing him into changing his plea, and the factual basis for his guilty plea was

inadequate. The circuit court granted the State’s motion to dismiss the petition. On appeal, we

granted appellate counsel’s motion to withdraw and affirmed the circuit court’s dismissal of

defendant’s petition. People v. Clark, No. 3-05-0884 (2007) (unpublished dispositional order).

¶6 On December 20, 2010, defendant filed a successive postconviction petition, arguing,

inter alia, that his sentence was void because he received two sentences based on the same

conduct. The circuit court granted the State’s motion to dismiss the petition. On appeal, we

2 granted appellate counsel’s motion to withdraw and affirmed the circuit court’s dismissal of

defendant’s petition. People v. Clark, No. 3-12-0742 (2013) (unpublished dispositional order).

¶7 On June 25, 2018, defendant filed the successive postconviction petition at issue.

Initially, the circuit court denied the successive petition because defendant failed to submit a

motion for leave to file. Defendant then filed a motion requesting leave to file his successive

postconviction petition, in which he argued that newly discovered evidence in the fields of

neurobiology and developmental psychology showed that his brain was not fully developed at

the time of his offense, and therefore his sentence was unconstitutional. To support his argument,

defendant relied on Miller v. Alabama, 567 U.S. 460 (2012) and People v. House, 2015 IL App

(1st) 110580, vacated, No. 122134, (Ill. Nov. 28, 2018) (supervisory order), which were decided

after he filed his prior postconviction petitions. The court denied defendant leave to file his

successive postconviction petition, finding he failed to satisfy the requisite cause and prejudice

test. Defendant appeals.

¶8 II. ANALYSIS

¶9 Defendant argues that he demonstrated cause and prejudice to file a successive

postconviction petition because the case law surrounding intellectually disabled emerging adults

has changed drastically since he was sentenced, and his sentence violated both the United States

and Illinois Constitutions because the court failed to consider properly all mitigating factors

during sentencing. We disagree. Defendant has failed to show the prejudice necessary to warrant

leave to file a successive postconviction petition.

¶ 10 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) generally

contemplates only one postconviction petition filing. People v. Pitsonbarger, 205 Ill. 2d 444, 456

(2002). However, a court will grant leave to file a successive postconviction petition if the

3 petitioner demonstrates cause for failing to bring the claim in his initial postconviction

proceedings and resulting prejudice. People v. Edwards, 2012 IL 111711, ¶¶ 22-23, 31. Cause is

“an objective factor that impeded [the petitioner’s] ability to raise a specific claim during [the]

initial post-conviction proceedings.” 725 ILCS 5/122-1(f) (West 2018). Prejudice occurs when

“the claim not raised during [the] initial post-conviction proceedings so infected the trial that the

resulting conviction or sentence violated due process.” Id.

¶ 11 Under the proportionate penalties clause of the Illinois Constitution, “[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 statute may be deemed

unconstitutionally disproportionate if *** the punishment for the offense is cruel, degrading, or

so wholly disproportionate to the offense as to shock the moral sense of the community ***.

People v. Miller, 202 Ill. 2d 328, 338 (2002). The proportionate penalties clause is at least as far-

reaching as the eighth amendment of the United States Constitution. People v. Horta, 2016 IL

App (2d) 140714, ¶ 62.

¶ 12 After defendant filed his opening brief in this appeal, the Illinois Supreme Court decided

People v. Coty, 2020 IL 123972, which involved a 46-year-old intellectually disabled defendant

who received a statutorily mandated natural life sentence after his second conviction for a sexual

offense against a child pursuant to section 12-14.1(b)(2) of the Criminal Code of 2012 (720 ILCS

5/12-14.1(b)(2) (West 2004)). The court analyzed the defendant’s culpability, future

dangerousness, and rehabilitative potential. Regarding the first two factors, the court determined

that the defendant’s intellectual disability simultaneously diminished his culpability and

indicated that he was a continuing danger to reoffend. Id. ¶¶ 33-36. Concerning the defendant’s

rehabilitative potential, the court determined that while the United States Supreme Court’s

4 decision in Miller, 567 U.S. 460, is “based in part upon the lesser culpability of youth—a

characteristic *** shared by the intellectually disabled—the Miller Court’s decision is founded,

principally, upon the transient characteristics of youth, characteristics not shared by adults who

are intellectually disabled.” (Emphasis in original.) Coty, 2020 IL 123972, ¶ 39. The Coty court

found that “[w]hile defendant may be less culpable, because of his disability, *** the

characteristics of his predominantly static condition and his age make him less likely to be

rehabilitated and thus more likely to reoffend.” Id. ¶ 42. The court held that the defendant’s life

sentence violated neither the proportionate penalties clause of the Illinois Constitution nor the

eighth amendment of the United States Constitution. Id. ¶¶ 44-45.

¶ 13 Defendant cannot demonstrate the prejudice necessary to warrant leave to file a

successive postconviction petition, as an intellectually disabled adult defendant’s natural life

sentence violates neither the United States nor the Illinois Constitutions under Coty. See id.

¶¶ 39-45. Defendant acknowledges that Coty controls, but argues that his offense and his age

when he committed the offense distinguish him from the Coty defendant. We do not accept

defendant’s invitation to parse the Coty decision by distinguishing between a 24-year-old

intellectually disabled defendant who committed first degree murder and robbery and a 46-year-

old intellectually disabled defendant who was twice convicted for sexual offenses against

children. The Coty court held that “[w]hile defendant may be less culpable, because of his

disability, *** the characteristics of his predominantly static condition and his age make him less

likely to be rehabilitated and thus more likely to reoffend.” Id. ¶ 42. The same is true of

defendant in the instant case, whose intellectual disabilities limit his rehabilitative potential and

increase his likelihood of reoffending.

5 ¶ 14 Further, because defendant was 24 years old when he committed first degree murder, he

falls outside the consideration of Miller, 202 Ill. 2d 328, Miller, 567 U.S. 460, and other related

case law finding that a nature life sentence without parole is unconstitutional when applied to

defendants who were in their teens when they committed their offenses. See People v. Harris,

2018 IL 121932, ¶¶ 54-61 (holding that an individual must be under the age of 18 for Miller, 567

U.S. 460, to apply). Thus, the case law defendant cites to satisfy the cause requirement does not

apply to him.

¶ 15 In light of Coty, defendant has failed to show the prejudice necessary to satisfy the cause

and prejudice test, and the case law upon which his motion relies is not applicable to his

circumstances. The court properly denied defendant leave to file a successive postconviction

petition.

¶ 16 III. CONCLUSION

¶ 17 The judgment of the circuit court of Knox County is affirmed.

¶ 18 Affirmed.

¶ 19 PRESIDING JUSTICE McDADE, dissenting:

¶ 20 I would reverse the circuit court’s denial of defendant’s motion for leave to file a

successive postconviction petition and remand for first-stage postconviction proceedings.

Accordingly, I respectfully dissent.

¶ 21 In Coty, 2020 IL 123972, ¶ 19, our supreme court addressed the following question:

“whether a sentence of life imprisonment, mandatory or de facto, is permissible for this

intellectually disabled adult twice convicted of a sexual offense perpetrated upon a young child.”

The court stated that “[t]he whole point of the mandatory, natural life sentence for repeat sex

offenders is to protect children by rendering it impossible for the incorrigible offender to

6 reoffend.” Id. ¶ 42. The Coty court held that the defendant’s life sentence violated neither the

proportionate penalties clause of the Illinois Constitution nor the eighth amendment of the

United States Constitution. Id. ¶¶ 44-45.

¶ 22 Defendant’s motion for leave to file a successive postconviction petition demonstrated

cause, as the law has changed both substantially and substantively since his sentencing and prior

postconviction filings. See 725 ILCS 5/122-1(f) (West 2018). The cases upon which defendant’s

postconviction argument relies—Miller, 567 U.S. 460, and House, 2015 IL App (1st) 110580—

were not decided when he filed his initial postconviction petition; thus, he could not raise this

specific claim during his initial postconviction proceedings. By showing that he could not raise

his claim until after those decisions were issued, defendant has satisfied the cause prong of the

cause and prejudice test. See People v. Davis, 2014 IL 115595, ¶ 42 (“In terms of the requisite

cause and prejudice of the Post-Conviction Hearing Act, Miller’s new substantive rule

constitutes ‘cause’ because it was not available earlier to counsel ***.”).

¶ 23 The majority observes that the cases defendant cites involved defendants who were in

their teens when they committed the offenses for which they were convicted, whereas defendant

was 24 years old. This is not the standard defendant must satisfy to show cause. Instead, a

defendant must identify “an objective factor that impeded his or her ability to raise a specific

claim during his or her initial post-conviction proceedings.” 725 ILCS 5/122-1(f) (West 2018).

Defendant has done so, as the case law upon which his argument relies on had not been decided

when he submitted his initial postconviction petition. Therefore, he has demonstrated cause.

¶ 24 Further, defendant has shown prejudice by stating a claim, based on new case law, that

his sentence is unconstitutional and violated due process. See id. Defendant’s claim relies, in

part, on Miller, 567 U.S. 460, which our supreme court deemed sufficient to satisfy the prejudice

7 prong of the cause and prejudice test. See Davis, 2014 IL 115595, ¶ 42 (“Miller’s new

substantive rule constitutes *** prejudice because it retroactively applies to defendant’s

sentencing hearing.”).

¶ 25 The majority holds that defendant cannot show prejudice because, under Coty, an

intellectually disabled adult defendant’s natural life sentence violates neither the United States

nor the Illinois Constitutions. However, our supreme court determined only the constitutionality

of the Coty defendant’s sentence, not the constitutionality of the sentence of every intellectually

disabled adult defendant who has received a life sentence, or the equivalent thereof. See Coty,

2020 IL 123972, ¶ 19 (“At its core, the question presented in this case is whether a sentence of

life imprisonment, mandatory or de facto, is permissible for this intellectually disabled adult

twice convicted of a sexual offense perpetrated upon a young child ***” (emphasis added)).

Although there is not enough information in the Coty decision for a definitive comparison of

their intellectual disabilities, this defendant differs significantly from Coty himself in that he was

roughly half of Coty’s age when they committed their offenses, and he is not a sex offender

subject to a specific sentencing mandate as Coty was. I would find that Coty does not control the

outcome of defendant’s appeal and his claim does not fail as a matter of law.

¶ 26 Defendant showed the cause and prejudice necessary to warrant leave to file a successive

postconviction petition, as the case law upon which his new claim is based did not exist when he

filed his initial postconviction petition, and his new claim, which challenges the constitutionality

of his sentence, is not controlled by Coty and does not fail as a matter of law. I would reverse the

circuit court’s denial of defendant’s motion for leave to file a successive postconviction petition

and remand the cause for first-stage postconviction proceedings, taking no position on the

underlying petition itself.