2022 IL App (1st) 172267-UB No. 1-17-2267 Filed January 27, 2022 Fourth 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 Plaintiff-Appellee, ) Cook County. ) v. ) No. 90 CR 16142 ) HORTEZ DANIEL, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, Presiding
JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Delort and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: Defendant’s 70-year prison term with eligibility for day-for-day, good conduct credit is not a de facto life sentence and, therefore, defendant failed to make a substantial showing of a constitutional violation to warrant an evidentiary hearing or postconviction relief.
¶2 Hortez Daniel was sentenced to 70 years in prison for first degree murder and related
offenses he committed as a juvenile in 1990. In 2017, he appealed the circuit court’s dismissal of
his successive postconviction petition that challenged his sentence pursuant to Miller v. Alabama,
567 U.S. 460, 479 (2012). Our initial opinion, filed June 30, 2020, reversed the circuit court’s
dismissal of the petition, vacated his sentence, and remanded for a new sentencing hearing. People No. 1-17-2267
v. Daniel, 2020 IL App (1st) 172267, ¶¶ 29-30. 1 We found that Daniel’s 70-year prison term
constituted a de facto life sentence imposed without consideration of his youth and its attendant
characteristics or rehabilitative potential, as required pursuant to People v. Buffer, 2019 IL 122327.
Id. ¶ 28. The State filed a petition for leave to appeal in the Illinois Supreme Court. On November
24, 2021, the supreme court denied the petition for leave to appeal but issued a supervisory order
directing this court to vacate our initial judgment and “consider the effect of [the Illinois Supreme]
Court’s opinion in People v. Dorsey, 2021 IL 123010, on the issue of whether defendant’s sentence
constitutes a de facto life sentence, and determine if a different result is warranted.” People v.
Daniel, No. 126262 (Ill. Nov. 24, 2021) (supervisory order). Upon review of the record and
consideration of Dorsey, we find a different result is warranted and affirm the circuit court’s
dismissal of Daniel’s successive postconviction petition.
¶3 I. BACKGROUND
¶4 At age 16, Daniel shot and killed 77-year-old Eulice Reese, his grandmother’s boyfriend,
during a robbery of Reese’s apartment where Daniel stole cash his father kept there and used it to
purchase a motor scooter. After a bench trial, Daniel was convicted and sentenced to concurrent
terms of 70 years for first degree murder, 20 years for armed robbery, and 15 years for residential
burglary. This court affirmed his convictions and sentence. People v. Daniel, 238 Ill. App. 3d 19
(1992).
¶5 In 2012, the United States Supreme Court held that sentencing a juvenile to mandatory life
without the possibility for parole violates the eighth amendment to the United States Constitution.
Miller, 567 U.S. at 479. In 2015, Daniel filed a motion for leave to file a successive postconviction
1 Justice Shelvin Louise M. Hall originally sat on the panel of this appeal and delivered its disposition. Justice Hall is no longer with the appellate court. Therefore, Justice LeRoy K. Martin, Jr. will serve in her stead and has read the briefs, record, and initial order. -2- No. 1-17-2267
petition in the circuit court, claiming that his sentence violated the eighth amendment pursuant to
Miller. The circuit court granted leave and appointed counsel to assist Daniel in further
postconviction proceedings. The State subsequently filed a motion to dismiss the petition arguing
that, as a matter of law, Daniel, who was eligible for day-for-day, good conduct credit, was not
entitled to relief under Miller as he was not serving a natural or de facto life sentence. The circuit
court agreed and dismissed Daniel’s petition without an evidentiary hearing. Daniel appealed.
¶6 II. ANALYSIS
¶7 The Postconviction Hearing Act (Act) (725 ILCS 5/121-1 et seq. (West 2014)) enables an
imprisoned person to challenge their conviction or sentence collaterally based on constitutional
issues that were not, and could not have been, adjudicated on direct appeal. People v. Pitsonbarger,
205 Ill. 2d 444, 455-6 (2002). A prisoner commences an action by filing a petition in the circuit
court of conviction. 725 ILCS 5/122-1(b) (West 2014). The Act then provides a process with up
to three stages to review and adjudicate the petition, the final stage being an evidentiary hearing.
People v. Domagala, 2013 IL 113688, ¶¶ 32, 34. A petitioner is not entitled to a hearing on their
petition. People v. Coleman, 183 Ill. 2d 366, 381 (1998). Rather, their petition and its
accompanying affidavits and other supporting exhibits must, when taken as true and if unrebutted
by the original trial record, make a substantial showing of a constitutional violation to warrant an
evidentiary hearing. Domagala, 2013 IL 113688, ¶ 35. In addition, the Act contemplates the filing
of only one petition. Pitsonbarger, 205 Ill. 2d at 456. Any claims not included in an initial petition
are forfeited. Id. However, a petitioner may seek leave to file a successive petition if the successive
petition makes a colorable claim of actual innocence or demonstrates cause for the omission of the
claim in the initial petition and resulting prejudice. People v. Sanders, 2016 IL 118123, ¶ 24. When
a circuit grants a petitioner leave to file a successive petition, the court appoints counsel for the
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petitioner if indigent, and affords the petitioner the opportunity to amend the petition with the
assistance of counsel. People v. Bailey, 2017 IL 121450, ¶ 18. Then, the State may either file an
answer or a motion to dismiss. Id. ¶ 20. The State may seek dismissal of the petition on any
cognizable grounds. Id. ¶ 26. Our review of a circuit court’s dismissal of a postconviction petition
without an evidentiary hearing is de novo. Sanders, 2016 IL 118123, ¶ 31.
¶8 In Miller, the United States Supreme Court held that the eighth amendment prohibits
mandatory life-without-parole sentences for juvenile offenders. Id. The decision recognized that
“children are constitutionally different from adults for purposes of sentencing.” Id. at 471. Children
have a “lack of maturity and an underdeveloped sense of responsibility,” which leads to
“recklessness, impulsivity, and heedless risk-taking.” Id. Children are also more vulnerable to
negative influences and outside pressures, have limited control over their own environment, and
“lack the ability to extricate themselves from horrific, crime-producing settings.” Id. The Court
further reasoned that a child’s character is not as well-formed as an adult’s. Id. A child’s traits are
“less fixed,” and their actions are “less likely to be evidence of irretrievable depravity.” Id. Miller
applies retroactively to cases on collateral review. Montgomery v. Louisiana, 577 U.S. 190 (2016);
People v. Davis, 2014 IL 115595. Accordingly, the eighth amendment protections of Miller apply
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2022 IL App (1st) 172267-UB No. 1-17-2267 Filed January 27, 2022 Fourth 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 Plaintiff-Appellee, ) Cook County. ) v. ) No. 90 CR 16142 ) HORTEZ DANIEL, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, Presiding
JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Delort and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: Defendant’s 70-year prison term with eligibility for day-for-day, good conduct credit is not a de facto life sentence and, therefore, defendant failed to make a substantial showing of a constitutional violation to warrant an evidentiary hearing or postconviction relief.
¶2 Hortez Daniel was sentenced to 70 years in prison for first degree murder and related
offenses he committed as a juvenile in 1990. In 2017, he appealed the circuit court’s dismissal of
his successive postconviction petition that challenged his sentence pursuant to Miller v. Alabama,
567 U.S. 460, 479 (2012). Our initial opinion, filed June 30, 2020, reversed the circuit court’s
dismissal of the petition, vacated his sentence, and remanded for a new sentencing hearing. People No. 1-17-2267
v. Daniel, 2020 IL App (1st) 172267, ¶¶ 29-30. 1 We found that Daniel’s 70-year prison term
constituted a de facto life sentence imposed without consideration of his youth and its attendant
characteristics or rehabilitative potential, as required pursuant to People v. Buffer, 2019 IL 122327.
Id. ¶ 28. The State filed a petition for leave to appeal in the Illinois Supreme Court. On November
24, 2021, the supreme court denied the petition for leave to appeal but issued a supervisory order
directing this court to vacate our initial judgment and “consider the effect of [the Illinois Supreme]
Court’s opinion in People v. Dorsey, 2021 IL 123010, on the issue of whether defendant’s sentence
constitutes a de facto life sentence, and determine if a different result is warranted.” People v.
Daniel, No. 126262 (Ill. Nov. 24, 2021) (supervisory order). Upon review of the record and
consideration of Dorsey, we find a different result is warranted and affirm the circuit court’s
dismissal of Daniel’s successive postconviction petition.
¶3 I. BACKGROUND
¶4 At age 16, Daniel shot and killed 77-year-old Eulice Reese, his grandmother’s boyfriend,
during a robbery of Reese’s apartment where Daniel stole cash his father kept there and used it to
purchase a motor scooter. After a bench trial, Daniel was convicted and sentenced to concurrent
terms of 70 years for first degree murder, 20 years for armed robbery, and 15 years for residential
burglary. This court affirmed his convictions and sentence. People v. Daniel, 238 Ill. App. 3d 19
(1992).
¶5 In 2012, the United States Supreme Court held that sentencing a juvenile to mandatory life
without the possibility for parole violates the eighth amendment to the United States Constitution.
Miller, 567 U.S. at 479. In 2015, Daniel filed a motion for leave to file a successive postconviction
1 Justice Shelvin Louise M. Hall originally sat on the panel of this appeal and delivered its disposition. Justice Hall is no longer with the appellate court. Therefore, Justice LeRoy K. Martin, Jr. will serve in her stead and has read the briefs, record, and initial order. -2- No. 1-17-2267
petition in the circuit court, claiming that his sentence violated the eighth amendment pursuant to
Miller. The circuit court granted leave and appointed counsel to assist Daniel in further
postconviction proceedings. The State subsequently filed a motion to dismiss the petition arguing
that, as a matter of law, Daniel, who was eligible for day-for-day, good conduct credit, was not
entitled to relief under Miller as he was not serving a natural or de facto life sentence. The circuit
court agreed and dismissed Daniel’s petition without an evidentiary hearing. Daniel appealed.
¶6 II. ANALYSIS
¶7 The Postconviction Hearing Act (Act) (725 ILCS 5/121-1 et seq. (West 2014)) enables an
imprisoned person to challenge their conviction or sentence collaterally based on constitutional
issues that were not, and could not have been, adjudicated on direct appeal. People v. Pitsonbarger,
205 Ill. 2d 444, 455-6 (2002). A prisoner commences an action by filing a petition in the circuit
court of conviction. 725 ILCS 5/122-1(b) (West 2014). The Act then provides a process with up
to three stages to review and adjudicate the petition, the final stage being an evidentiary hearing.
People v. Domagala, 2013 IL 113688, ¶¶ 32, 34. A petitioner is not entitled to a hearing on their
petition. People v. Coleman, 183 Ill. 2d 366, 381 (1998). Rather, their petition and its
accompanying affidavits and other supporting exhibits must, when taken as true and if unrebutted
by the original trial record, make a substantial showing of a constitutional violation to warrant an
evidentiary hearing. Domagala, 2013 IL 113688, ¶ 35. In addition, the Act contemplates the filing
of only one petition. Pitsonbarger, 205 Ill. 2d at 456. Any claims not included in an initial petition
are forfeited. Id. However, a petitioner may seek leave to file a successive petition if the successive
petition makes a colorable claim of actual innocence or demonstrates cause for the omission of the
claim in the initial petition and resulting prejudice. People v. Sanders, 2016 IL 118123, ¶ 24. When
a circuit grants a petitioner leave to file a successive petition, the court appoints counsel for the
-3- No. 1-17-2267
petitioner if indigent, and affords the petitioner the opportunity to amend the petition with the
assistance of counsel. People v. Bailey, 2017 IL 121450, ¶ 18. Then, the State may either file an
answer or a motion to dismiss. Id. ¶ 20. The State may seek dismissal of the petition on any
cognizable grounds. Id. ¶ 26. Our review of a circuit court’s dismissal of a postconviction petition
without an evidentiary hearing is de novo. Sanders, 2016 IL 118123, ¶ 31.
¶8 In Miller, the United States Supreme Court held that the eighth amendment prohibits
mandatory life-without-parole sentences for juvenile offenders. Id. The decision recognized that
“children are constitutionally different from adults for purposes of sentencing.” Id. at 471. Children
have a “lack of maturity and an underdeveloped sense of responsibility,” which leads to
“recklessness, impulsivity, and heedless risk-taking.” Id. Children are also more vulnerable to
negative influences and outside pressures, have limited control over their own environment, and
“lack the ability to extricate themselves from horrific, crime-producing settings.” Id. The Court
further reasoned that a child’s character is not as well-formed as an adult’s. Id. A child’s traits are
“less fixed,” and their actions are “less likely to be evidence of irretrievable depravity.” Id. Miller
applies retroactively to cases on collateral review. Montgomery v. Louisiana, 577 U.S. 190 (2016);
People v. Davis, 2014 IL 115595. Accordingly, the eighth amendment protections of Miller apply
to Daniel, who was sentenced long before the Miller decision.
¶9 The Illinois Supreme Court extended Miller’s reasoning to provide relief for juveniles who
received discretionary life sentences where the trial court failed to consider youth and its attendant
characteristics (People v. Holman, 2017 IL 120655, ¶ 40) and to de facto life sentences—terms of
years so long as to be the functional equivalent of life without the possibility of parole (People v.
Reyes, 2016 IL 119271, ¶ 9). Later, our supreme court determined that “a prison sentence of 40
years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation
-4- No. 1-17-2267
of the eighth amendment.” Buffer, 2019 IL 122327, ¶ 41. Rather, such a sentence “provides some
meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” in
accord with Miller. [Internal quotation marks omitted] Id.
¶ 10 Following Buffer, the appellate court found in several cases that the availability of
day-for-day, good conduct credit was not relevant to the determination of whether a term-of-years
sentence amounts to de facto life. See, e.g., People v. Peacock, 2019 IL App (1st) 170308,
¶¶ 18-19, overruled by Dorsey, 2021 IL 123010. Applying that reasoning, a juvenile offender with
a sentence of 40 or more years would be found to be serving a de facto life sentence even if eligible
for day-for-day credit that could result in release prior to serving 40 years in prison. Such
defendants would, therefore, be entitled to a new sentencing hearing unless the sentencing court
considered factors of youth and its attendant characteristics, which Illinois courts have referred to
as the Miller or Holman factors. See Holman, 2017 IL 120655, ¶ 46; see also 730 ILCS 5/5-4.5-105
(West 2016) (Illinois’s statutory requirement for consideration of such factors). Daniel’s 70-year
sentence was, of course, greater than the 40-year line drawn in Buffer. However, Daniel was
eligible to receive day-for-day credit since his offense occurred before the enactment of the
Truth-in-Sentencing Act, which disqualified persons convicted of first degree murder from
day-for-day credit and required the prison term to be served in full. See 730 ILCS 5/3-6-3(a)(2)(i)
(West 1998); Pub. Act 90-535, § 40 (eff. June 19, 1998). With day-for-day credit, Daniel could be
released on parole (mandatory supervised release) upon serving 35 years—under Buffer’s 40-year
ceiling.
¶ 11 Subsequent to our initial order in this case, in Dorsey, our supreme court considered the
effect of eligibility for day-for-day credit on the determination of whether a juvenile offender’s
sentence constitutes de facto life. The defendant in Dorsey was sentenced to an aggregate term of
-5- No. 1-17-2267
76 years after being convicted of first degree murder and two attempted first degree murders he
committed at age 14. Dorsey, 2021 IL 123010, ¶¶ 4-5, 19. Like Daniel, Dorsey was eligible to
receive day-for-day credit since his crimes were committed in 1996, before truth-in-sentencing
took effect. Id. ¶ 50. The court held that Dorsey’s 76-year term was not a de facto life sentence—
the functional equivalent of life without the possibility of parole—because, with day-for-day credit
eligibility, Dorsey had “an opportunity to demonstrate maturity and rehabilitation” upon serving
38 years, within the 40-year boundary established in Buffer. Id. The day-for-day credit scheme is
“designed to encourage rehabilitation and enable an offender to be released after he serves half of
the determinate sentence.” Id. ¶ 52. The court remarked that day-for-day credit eligibility is “at
least on par with discretionary parole for a life sentence,” which complies with the eighth
amendment under Miller. Id. ¶ 54. Thus, the court concluded that if a juvenile offender, with
eligibility for good conduct credit, can be released from prison after serving 40 years or less, the
sentence does not constitute a de facto life sentence. Id. ¶¶ 1, 65.
¶ 12 The Dorsey opinion squarely addresses the issue in this case. With day-for-day credit,
Daniel could be for released upon serving 35 years in prison—a shorter term than the sentence
reviewed in Dorsey. Indeed, the Illinois Department of Corrections’ (IDOC) website lists Daniel’s
projected parole date as June 2024. 2 He will be 50 years old. See People v. Johnson, 2021 IL
125738, ¶ 54 (courts may take judicial notice of records displayed on the IDOC website). Pursuant
to Dorsey, Daniel is, therefore, afforded a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation. His 70-year term of imprisonment, with eligibility for
day-for-day credit, is not a de facto life sentence.
2 If released in June 2024, Daniel will have served just under 34 years. The record before us does not disclose how Daniel could be released before serving half of his 70-year sentence. He may have earned additional sentencing credit by, for example, completing certain programming in IDOC. IDOC ultimately determines such credit and a prisoner’s release date. -6- No. 1-17-2267
¶ 13 III. CONCLUSION
¶ 14 Since Daniel is not serving a de facto life sentence, his postconviction petition failed to
make a substantial showing of a constitutional violation. Accordingly, we affirm the circuit court’s
dismissal of the petition.
¶ 15 Affirmed.
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