People v. Clark

2022 IL App (1st) 192448-U

Opinion

2022 IL App (1st) 192448 No. 1-19-2448 May 02, 2022 First Division NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent 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 Cook County, Illinois Respondent-Appellee, ) ) No. 02 CR 04491 v. ) EUGENE CLARK ) The Honorable ) Thomas J. Byrne, Petitioner-Appellant. ) Judge Presiding. )

JUSTICE WALKER delivered the judgment of the court. Presiding Justice Hyman and Justice Coghlan concurred in the judgment.

ORDER

¶1 Held: Pursuant to our supreme court’s precedent, the circuit court’s judgment summarily dismissing defendant’s first-stage postconviction petition is affirmed where it fails to state the gist of a constitutional claim that his plea was secured by threat of a de facto life sentence.

¶2 Petitioner Eugene Clark appeals from the circuit court’s denial of his postconviction

petition at the first stage of proceedings pursuant to the Post-Conviction Act (Act) (725 ILCS

5/122-1 et seq. (West 2018). Clark argues the petition alleged his guilty plea was involuntary where

it was secured by threat of an unconstitutional de facto life sentence under Miller v. Alabama, 567 No. 1-19-2448

U.S. 460 (2012). Pursuant to Illinois Supreme Court precedent, we must affirm the circuit court’s

judgment.

¶3 I. BACKGROUND

¶4 On January 13, 2002, at approximately 12:30 a.m., Clark, who was 17, was riding as a

passenger with codefendant Calvin Brooks near the 4200 block of West End Avenue in Chicago.

Clark was armed with a .380 caliber handgun, and Brooks was armed with a .9-millimeter

handgun. Brooks drove next to a car in which Kareem Walker and Frank Alexander were riding,

and Clark fired his weapon into the vehicle striking both. Alexander survived, but Walker died

from gunshot wounds to the head. Alexander later identified Clark as the shooter.

¶5 Clark was charged with sixteen counts of first degree murder, two counts of attempt first

degree murder, two counts of aggravated battery, and one count of aggravated discharge of a

firearm. Clark provided a videotaped statement where he admitted that he was a member of the

Dog Pound street gang, was looking to shoot rival gang members in retaliation for a previous

shooting, used a .380-caliber firearm during the shooting, and gave the weapon to Brooks after the

shooting.

¶6 On March 4, 2003, pursuant to a plea agreement, Clark pled guilty to first degree murder,

aggravated battery, and an unrelated drug charge, in exchange for concurrent sentences of a total

of 34 years in the Illinois Department of Corrections.

¶7 In admonishing Clark on his guilty plea, the following exchange occurred:

COURT: “Mr. Clark, you are charged under 02 CR 04491 with 16 counts of first-

degree murder. Some of those counts carry a sentence of from 20 to 60 years in the

penitentiary but those counts could be enhanced by adding on [an] additional 25

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years. There is also a charge of first-degree murder which would carry a possible

sentence of from 20 to 60 years but [it] could be enhanced by adding on 20 years.

All those charges are going to be nolled or dismissed as part of this plea agreement.

You will plead guilty to one count of first-degree murder. That count carries a

possible sentence of from 20 to 60 years in the penitentiary with a mandatory

supervised release term of two years. So, in return for your plea of guilty to that

offense, you would be sentenced to 33 years in the Illinois Department of

Corrections. There are additional charges of attempt first-degree murder that will

be dismissed and there are charges of aggravated discharge of a firearm that will

also be dismissed.

There are two charges of aggravated battery. They carry a possible sentence of from

2 to 5 years in the penitentiary with a mandatory supervised release term of one

year. In return for your plea of guilty to one count of aggravated battery, you would

be sentenced to two years [in the] Illinois Department of Corrections. That sentence

would run concurrent with – meaning at the same time as the 33 years that you’re

going to receive on the charge of first-degree murder on that case. Sir, is that your

understanding of the State’s offer?

CLARK: Yes, ma’am.

COURT: Mr. Clark, I was not a party to this agreement, but I will go along with it.

On case number 02 CR 08287 you’re charged with possession of a controlled

substance with intent to deliver within a thousand feet of a school. That charge was

followed or dismissed as part of this plea agreement. The second charges you with

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possession of a controlled 3 substance with intent to deliver. As charged, it carries

a possible sentence of from 3 to 7 years in the penitentiary with a mandatory

supervised release period of two years. The State is going to amend that charge to

possession of a controlled substance as amended. It will carry a possible sentence

of from 1 to 3 years in the penitentiary with a mandatory supervised release term

of one year. In return for your plea of guilty to that amended charge, you will be

sentenced to one year in the Illinois Department of Corrections. That sentence

would run, however, consecutive, which means that after the 33-year sentence that

you’re receiving in the other matter.

So for these two cases, sir, in effect your sentence will be 34 years in the Illinois

Department of Corrections. Is that your understanding of the offer on your other

case, Mr. Clark?

COURT: Again, I was not a party to the agreement, but I will go along with it.”

¶8 After admonishing Clark, the circuit court found Clark understood “the nature of the

charges pending against him, the possible penalties that may be imposed, and that he is freely and

voluntarily entering a plea of guilty.”

¶9 On August 2, 2019, Clark filed a pro se postconviction petition alleging that his

constitutional rights were violated under both the Eighth Amendment and the Proportionate

Penalties Clause when the circuit court imposed a de facto life sentence because he was 17 years

old at the time of the offense, and the circuit court did not take into consideration the transient

signature qualities of youth and the factors set forth in Miller at the time of his plea.

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¶ 10 On September 26, 2019, the circuit court dismissed Clark’s postconviction petition and

acknowledged that Clark’s youth and attendant circumstances were not addressed by the

sentencing court. The circuit court noted in its order that a sentence over 40 years is considered a

de facto life sentence under People v. Buffer, 2019 IL 122327, and Clark’s 33-year sentence did

not constitute a de facto life sentence. Clark now appeals.

¶ 11 II. ANALYSIS

¶ 12 On appeal, Clark argues that the circuit court erred when it dismissed his postconviction

petition because his petition makes the gist of a constitutional claim under Miller and its progeny,

and his guilty plea was involuntary where it was secured by the threat of an unconstitutional de

facto life sentence.

¶ 13 The Act sets out a three-stage proceeding in which a criminal defendant may assert that his

conviction resulted from a substantial denial of his rights under the United States Constitution, the

Illinois Constitution, or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009). The circuit court may

summarily dismiss a postconviction petition if it determines that the petition is “frivolous or is

patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). A petition is frivolous or patently

without merit only if it has “no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 16.

¶ 14 At the first stage, the court must liberally construe and accept as true all the allegations in

the petition unless contradicted by the record. People v. Edwards, 197 Ill. 2d 239, 244 (2001). A

defendant need only allege sufficient facts to state the “gist” of a constitutional claim for the

petition to be forwarded to the second stage. Hodges, 234 Ill. 2d at 9. A petition lacks an arguable

basis in fact if it is based upon fanciful factual allegations that are clearly baseless, fantastic, or

delusional. Id. at 16-17. A petitioner needs to present only a limited amount of detail and is not

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required to include legal argument or citation to legal authority. Edwards, 197 Ill. 2d at 244-45.

However, a pro se petitioner is not excused from providing factual detail on the alleged

constitutional deprivation. People v. Delton, 227 Ill. 2d 247, 254 (2008). The summary dismissal

of a postconviction petition is reviewed de novo. People v. Petrenko, 237 Ill. 2d 490, 496 (2010).

¶ 15 Clark’s petition alleges he was subjected to an unfair plea proceeding under Miller, where

he pleaded guilty after the circuit court admonished him that he faced a term of imprisonment of

up to 60 years, an additional enhancement of 20 to 25 years if convicted of murder, and that the

court never considered the Miller factors.

¶ 16 In Miller, the Supreme Court held that the eighth amendment precluded a mandatory

sentence of life without parole for a juvenile offender who has committed homicide. The Court

acknowledged that such a sentence could be imposed only where the sentence is not mandatory,

and the sentencing court has discretion to consider the mitigating qualities of a youthful offender

and may impose a lesser punishment. Id. at 476, 132 S. Ct. 2455. The Court later held that Miller

applied retroactively in Montgomery v. Louisiana, 577 U.S. 190, 206, 212, 136 S. Ct. 718.

¶ 17 Our supreme court expanded the reasoning of Miller in People v. Reyes, 2016 IL 119271,

¶ 9, holding that Miller applies when a juvenile offender is sentenced to a mandatory term of years

that is the functional equivalent of life without the possibility of parole. Subsequently, in People v.

Holman, 2017 IL 120655, ¶ 38, our supreme court ruled that Miller is not specific to mandatory

life sentences. Under Miller and Montgomery, life sentences imposed on juvenile offenders,

mandatory or discretionary, are disproportionate and violate the eighth amendment, unless the

sentencing court considers youth and its attendant characteristics. Id. ¶ 40.

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¶ 18 In Buffer, 2019 IL 122327, ¶¶ 40-41, our supreme court held that prison terms over 40

years imposed on juveniles constitutes a de facto life sentence and violates the eighth amendment.

To prevail on a claim that a juvenile's life sentence violated the eighth amendment, a defendant

must show both that (1) he was “subject to a life sentence, mandatory or discretionary, natural, or

de facto,” and (2) “the sentencing court failed to consider youth and its attendant characteristics.”

Id. 27.

¶ 19 Here, in admonishing Clark on his guilty plea, the circuit court stated that some of the

counts carried sentences up to 60 years, with a possible enhancement adding 20 years. Clark argues

that his plea was involuntary because it was obtained by threat of a de facto life sentence.

¶ 20 To support his argument, Clark relies on People v. Parker, 2019 IL App (5th) 150192 and

People v. Robinson, 2021 IL App (1st) 181653. In Parker, a juvenile defendant was charged with

first-degree murder. Parker, 2019 IL App (5th) 150192 ¶ 2. The defendant entered a plea

agreement in exchange for a negotiated sentence of imprisonment not to exceed 50 years. Id. ¶ 3.

The court sentenced the defendant to 35 years in prison. Id. The defendant later filed a successive

postconviction petition alleging inter alia that his sentence amounted to a de facto life sentence

because the circuit court failed to consider his youth and attendant characteristics set forth in

Miller. Id. ¶ 9. The court found that defendant had demonstrated prejudice because his guilty plea

was influenced by the State's sentencing recommendation and repeated admonishments that he

could receive a life sentence. Id. ¶¶ 18-20.

¶ 21 In Robinson, this court reversed the circuit court's summary dismissal of the defendant's

pro se postconviction petition and remanded for second-stage proceedings where the defendant

entered a negotiated plea for a 35-year sentence after being admonished that he faced a potential

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60 years in prison. Robinson, 2021 IL App (1st) 181653Id. ¶¶ 1, 6, 8, 22. The defendant in

Robinson alleged in his petition that the circuit court did not consider any of the Miller factors. Id.

¶¶ 9-10. This court found that defendant’s petition stated the gist of a constitutional claim that his

plea was obtained by threat of a de facto life sentence and remanded for second-stage proceedings

under the Act. Robinson, 2021 IL App (1st) 181653 ¶¶ 36-37.

¶ 22 Initially, the State argues that Clark waived the claim that his plea was secured out of threat

of an unconstitutional sentence by not raising it in his postconviction petition, effectively forfeiting

his claim. As the circuit court noted, Clark’s petition does not allege that his guilty plea was

coerced out of the threat of an unconstitutional sentence or that his guilty plea was otherwise

rendered involuntary by Miller or its progeny, nor does it challenge the constitutionality of his

guilty plea. Instead, Clark argues that the sentencing court failed to consider his youth and

attendant circumstances when it imposed his 33-year sentence, which Clark believed violated

Miller and its progeny. Clark’s petition requests that the circuit court order a new sentencing

hearing where the court could consider his age, rehabilitative efforts, and other Miller-based

factors.

¶ 23 Clark’s postconviction petition did not suggest that his guilty plea was coerced by the threat

of a now unconstitutional sentence, and the claim was not properly before the trial court. As a

result, Clark has waived his claim. 725 ILCS 5/122-3 (2020); (“Any claim of substantial denial of

constitutional rights not raised in the original or an amended petition is waived.”); People v.

Petrenko, 237 Ill.2d at 502 (“The problem with this argument is that it was not raised in the [first-

stage, pro se] petition that defendant filed in the trial court.”); People v. Pendleton, 223 Ill.2d 458,

475 (2006) (the appellate court may not overlook the waiver provision of the Act, as a claim not

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raised in a postconviction petition cannot be raised for the first time on appeal); People v. McNeal,

194 Ill. 2d 135, 147 (2000) (“It is well established . . . that the defendant may not add an issue to

the case while the matter is on review.”).

¶ 24 Waiver aside, the State also argues neither Parker nor Robinson are applicable because of

the supreme court’s recent decision in People v. Jones, 2021 IL 126432. In Jones, the defendant

was charged with several offenses, including two counts of first-degree murder that were

committed when he was 16 years old. Id. ¶ 3. Defendant entered a negotiated guilty plea to one

count each of first-degree murder, residential burglary, and two counts of armed robbery, in

exchange for specified terms of imprisonment and dismissing the remaining charges. Id. ¶ 4. The

circuit court approved the plea agreement and sentenced defendant to concurrent prison terms of

50 years for murder, 30 years for each armed robbery count, and 15 years for residential burglary

Id. ¶ 5. Defendant petitioned for postconviction relief. Id. ¶ 7. The petition was denied, and denial

was affirmed on appeal. Defendant moved for leave to file a successive postconviction petition,

which was denied and affirmed on appeal. Id. ¶¶ 7-10.

¶ 25 Our supreme court also affirmed, finding that defendant’s “knowing and voluntary guilty

plea waived any constitutional challenge based on subsequent changes in the applicable law.” Id.

¶ 26. The court reasoned that to succeed on a Miller claim, the defendant was required to show

that the de facto life sentence he received was not the circuit court’s use of its discretion. Id. The

court also found that the trial judge exercised discretion in accepting the plea and de facto life

sentence; therefore, Miller and its progeny were inapplicable.

¶ 26 We are bound by our supreme court’s ruling set forth in Jones and compelled to reject

Clark’s claim. Consequently, we find that the sentencing court was able to exercise its discretion

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in deciding whether to sentence Clark pursuant to his negotiated plea agreement, and the circuit

court properly dismissed Clark’s postconviction petition.

¶ 27 III. CONCLUSION

¶ 28 For the foregoing reasons, we affirm the circuit court’s summary dismissal of Clark’s first

stage postconviction petition.

¶ 29 Affirmed.

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