People v. Daubman

2020 IL App (5th) 170483-U

• Court: Appellate Court of Illinois
• Decided: August 18, 2020
• Docket: 5-17-0483
• Status: Unpublished

Opinion

NOTICE 2020 IL App (5th) 170483-U NOTICE Decision filed 08/18/20. The This order was filed under text of this decision may be NO. 5-17-0483 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Marion County. ) v. ) No. 86-CF-112 ) GARY DAUBMAN, ) Honorable ) Mark W. Stedelin, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Cates and Boie concurred in the judgment.

ORDER

¶1 Held: The trial judge did not err when he denied the defendant’s motion for leave to file successive petition for postconviction relief, because the defendant did not meet the standard of making a prima facie showing of cause and prejudice in his successive petition for postconviction relief and the attached exhibits where it was clear from those documents that the defendant’s legal theory would fail. See People v. Bailey, 2017 IL 121450, ¶ 21.

¶2 The defendant, Gary Daubman, appeals the denial, by the circuit court of Marion County,

of his motion for leave to file a successive petition for postconviction relief. For the following

reasons, we affirm.

¶3 I. BACKGROUND

¶4 The facts necessary to our disposition of this appeal follow. On April 2, 1987, the defendant

entered a plea of guilty to the charge of first degree murder for his role as the shooter in the for-

1 hire, execution-style killing of Robert D. Alderson Jr. In exchange for the defendant’s plea of

guilty, the State agreed not to pursue the death penalty in this case, to drop additional charges in

this case, and not pursue charges against the defendant in other potential cases in two other Illinois

counties. The defendant—who was 22 years old at the time of his guilty plea, and 21 years old

when he committed the murder—was sentenced to natural life in prison, with no possibility of

parole. His conviction and sentence have withstood challenges on direct appeal, and following his

filing of a petition for postconviction relief.

¶5 On July 31, 2017, the defendant filed the motion for leave to file a successive petition for

postconviction relief that presently is before this court on appeal. Therein, the defendant raised as-

applied claims against his sentence of natural life in prison without the possibility of parole under

the eighth amendment to the United States Constitution and article I, section 11, of the Illinois

Constitution, pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and related cases. The trial judge

denied the motion, reasoning that the defendant’s conviction and sentence did not run afoul of

those cases because, in this case, the defendant entered a fully negotiated guilty plea. This timely

appeal followed.

¶6 II. ANALYSIS

¶7 On appeal, the defendant contends the trial judge erred by denying the defendant’s motion

for leave to file his successive petition for postconviction relief, because the defendant “made a

prima facie showing of cause and prejudice with regard to his as-applied claims based on Miller

v. Alabama, 567 U.S. 460 (2012), and its progeny.” Specifically, the defendant argues that the

Illinois Supreme Court has “made clear that a young adult may rely on Miller in support of an as-

applied claim that, under the ‘specific facts and circumstances’ of his case, a sentence of life

without parole violates the Eighth Amendment and/or the proportionate penalties clause” of the

Illinois Constitution. The specific facts and circumstances that defendant relies upon in this case 2 are his allegations that (1) he was more like a juvenile than an adult when he committed his crimes

at age 21, because he had “a brain maturity of a 16 year old,” an extremely limited education due

in part to “learning disabilities,” and mental health and substance abuse issues, (2) he was younger

than his codefendants and that the facts of his crime show it to be the result of peer pressure and

the rash decision-making typical of juveniles and young adults, and (3) had the trial judge

understood and considered the importance of the defendant’s youthful limitations, the defendant

would have been sentenced to a term of years rather than to natural life in prison without the

possibility of parole.

¶8 The State counters that the defendant has failed to adequately allege cause and prejudice,

both of which are required for leave to file a successive postconviction petition. In particular, the

State contends the defendant’s claim that he had the brain maturity of a 16-year-old is unsupported

by anything in the record, and that his claim that he committed the murder as a result of peer

pressure is likewise rebutted by the record. The State also contends it is a dubious proposition that

the trial judge would have been persuaded by the defendant’s “youthful limitations” to sentence

the defendant to a term of years, particularly in light of the violent criminal record the defendant

had accrued by the age of 21, which included the fact that the defendant was on parole at the time

he committed the murder in this case.

¶9 In reply, the defendant contends that he was required to make only a prima facie showing

of cause and prejudice in his successive petition for postconviction relief, and the attached exhibits,

and did so. The defendant posits that the State’s desire to reach the merits of the defendant’s claims,

by an examination of the record, is at this point premature, because the defendant “has specifically

requested relief in the form of the filing of, and further proceedings on, his successive

postconviction petition, and he has expressly disclaimed any request for this Court to reach the

merits of his Miller-based claims.” The defendant also acknowledges our recent decision in People 3 v. White, 2020 IL App (5th) 170345, but claims it is distinguishable. Subsequent to the filing of

the defendant’s reply brief, the State filed a motion to cite additional authority (which this court

granted) in which it, too, raised the relevance of our decision in White to the present appeal.

¶ 10 We begin our analysis by pointing out that we may affirm the ruling of a trial judge on any

basis supported by the record. See, e.g., Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d

407, 418 (2007); see also, e.g., People v. Johnson, 208 Ill. 2d 118, 134 (2003). We may do so

because the question before us on appeal is the correctness of the result reached by the trial judge,

rather than the correctness of the reasoning upon which that result was reached. See, e.g., Johnson,

208 Ill. 2d at 128. Moreover, as the defendant points out, this court reviews de novo the denial of

a motion for leave to file a successive postconviction petition. See, e.g., People v. Bailey, 2017 IL

121450, ¶ 13. A motion for leave to file a successive postconviction petition should be granted

where the petitioner adequately alleges facts demonstrating cause and prejudice. Id. ¶ 24; see also

725 ILCS 5/122-1(f) (West 2016) (outlining cause and prejudice requirement for successive

postconviction petitions). The petitioner does not have to prove cause and prejudice in order to file

a successive postconviction petition; rather, a petitioner, in the petitioner’s pleadings, need make

only “a prima facie showing of cause and prejudice.” Bailey, 2017 IL 121450, ¶ 25. When

reviewing a motion for leave to file a successive postconviction petition, the trial judge is to

perform a “preliminary screening” to verify that the petitioner has met the pleading standard for

cause and prejudice. Id. ¶ 24. To meet that pleading standard, the petitioner must submit enough

documentation for the trial judge to make that determination. Id. ¶ 21. If it is clear from the

documentation provided that the legal claims fail, or the successive petition with supporting

documentation is insufficient to justify further proceedings, the motion for leave to file the

successive petition should be denied. Id. As a general rule, because our state statutes contemplate

4 the filing of only one postconviction petition, “successive postconviction petitions are highly

disfavored” under Illinois law. Id. ¶ 39.

¶ 11 In People v. White, 2020 IL App (5th) 170345, ¶ 13, this court addressed the denial of a

motion for leave to file a successive postconviction petition in circumstances very similar to those

in the present case: the assertion by a defendant that his natural life sentences violated the eighth

amendment of the United States Constitution (U.S. Const., amend. VIII) and the proportionate

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) as applied to him because

he was “a 20 year old minor” when the murders occurred, and the trial court did not consider his

youth and rehabilitative potential. We noted the general rules that, to make the required prima facie

showings, “[a] defendant shows cause by identifying an objective factor that impeded [the

defendant’s] ability to raise a specific claim in [the defendant’s] initial postconviction petition,”

and that “[a] defendant shows prejudice by demonstrating that the claim not raised in [the] initial

postconviction petition so infected [the] trial that the resulting conviction or sentence violated due

process.” Id. ¶ 18. We held that the defendant in White could not establish the necessary

prima facie showing of prejudice, because the legal claims he sought to raise were not legally

cognizable. Id. We reasoned that recent legislation from the Illinois General Assembly

demonstrates that, even post-Miller, “according to current sentencing laws, [a] defendant at age 20

[is] an adult,” and that “the Miller protections under the eighth amendment are simply not

implicated in cases of adult offenders.” Id. ¶¶ 19-20. We added that therefore “the defendant

[could] not benefit from the specific considerations that attend youth at sentencing,” and that

“[m]oreover, with respect to his ‘as-applied’ constitutional challenge under the eighth amendment,

the allegations presented in the defendant’s postconviction petition and appellate brief fail to

demonstrate that the particular facts and circumstances of his case made him more akin to a

5 juvenile subject to Miller protections and less like an adult, or that his mandatory life sentence for

a double murder of two individuals is cruel and unusual.” Id. ¶ 20.

¶ 12 With regard to the defendant’s proportionate penalties argument under our state

constitution, we added that the defendant’s “flat allegation as to evolving science on juvenile

maturity and brain development [was] simply insufficient” to meet the requirements to be entitled

to file a successive postconviction petition, because “[o]ther than generally asserting studies that

show that sometimes youthfulness can extend into a person’s twenties, the defendant does not now

allege how he was particularly affected by any immaturity, and it is undisputed that he did not

suffer from any cognitive or developmental impairments.” Id. ¶ 24. We further noted that “the

allegations relating to his family history [did] not rise to the level of special circumstances that

would provide a compelling reason to advance his successive postconviction petition.” Id. We

rejected the defendant’s reliance on People v. House, 2019 IL App (1st) 110580-B, because,

inter alia, that decision involved a defendant who “was age 19 during the offense, minimally

culpable since he acted as a lookout, and had no prior violent criminal history.” White, 2020 IL

App (5th) 170345, ¶ 27. We noted that the defendant in White, to the contrary, “was not a teenager

on the cusp between a juvenile and adult who was minimally culpable,” but rather “was far from

the ‘least culpable offender imaginable,’ ” because the defendant “developed an intricate plan for

the murders, executed those plans, and elicited the aid of his younger brother in doing so.” Id. ¶ 28.

We concluded that “the evidence established that the defendant was the principal offender and was

far from minimally culpable.” Id. Thereafter, we reiterated that the defendant could not “establish

the necessary prejudice because his claims are legally meritless and his factual assertions

unsupported, and his successive petition is insufficient to justify further proceedings.” Id. ¶ 31.

¶ 13 In this appeal, the defendant attempts to distinguish our recent decision in White by noting

that here, unlike in White, the defendant has “alleged not just that young adults generally are more 6 like juveniles in constitutionally relevant ways, such as susceptibility to peer pressure, difficulty

understanding and appreciating the future consequences of present actions, and volatility in

emotionally charged settings,” but also “that he specifically was more like a juvenile than an adult

when he committed his crime at age 21, because he had ‘a brain maturity of a 16 year old,’ an

extremely limited education due in part to ‘learning disabilities’ and mental health and substance

abuse issues.” The defendant notes that he has “provided affidavits and school records indicating

that he had ‘learning disabilities’ and a ‘brain development disorder,’ was mentally ‘slow’ or

‘slower,’ did not continue past the ninth grade and was in special education classes at school, and

was ‘easily talked into doing things.’ ” He further notes that he has “alleged that he was younger

than each of his many codefendants and that the facts of his crime show it to be the result of peer

pressure and the rash decision-making so typical of juveniles and young adults.” The State, on the

other hand, contends in its motion to cite White as additional authority that the defendant’s

allegations are, in part, rebutted by the record, and are, in any event, not sufficient to meet the

standard of making a prima facie showing of cause and prejudice in his successive petition for

postconviction relief with the attached exhibits.

¶ 14 Subsequent to our decision in White, we issued our opinion in People v. Green, 2020 IL

App (5th) 170462. Therein, we reiterated our decision in White, noting that there is no legal merit

to a claim under either the eighth amendment of the United States Constitution (U.S. Const.,

amend. VIII), or the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970,

art. I, § 11), where the defendant was over 18 years old at the time of the murder, and the

defendant’s conviction was based upon the defendant’s direct participation in the murder, rather

than on the basis of an accountability theory. Green, 2020 IL App (5th) 170462, ¶¶ 29-30, 37.

Applying the reasoning of our decisions in White and Green, we conclude that the defendant’s

claim in this case is not legally cognizable either, because the defendant was in fact 21 years old 7 when he acted as the shooter, and therefore directly participated in the for-hire, execution-style

murder in this case. As a result, the defendant cannot avail himself of the protections found in

Miller and its progeny, regardless of the allegation he has made that, cognitively, he was “more

like” a juvenile than an adult when he committed the murder. See Green, 2020 IL App (5th)

170462, ¶ 29 (“our supreme court has declined to extend Miller to offenders who are 18 years of

age or older, finding that the Miller Court ‘confirmed that the age of 18 is the legal line separating

adults from juveniles’ and that the protections of Miller only apply to juvenile offenders” (citing

People v. Harris, 2018 IL 121932, ¶¶ 58-61)); see also People v. Ybarra, 2016 IL App (1st)

142407, ¶¶ 27, 30 (rejecting proportionate penalties claim under Illinois Constitution because

defendant—although “also a young adult at 20 years old,” as well as someone who had, inter alia,

diminished cognitive abilities and learning disabilities–was nevertheless “a legal adult” who

directly participated in the execution-style murders in question as the “actual shooter”).

Accordingly, the trial judge did not err when he denied the defendant’s motion for leave to file a

successive postconviction petition. See Bailey, 2017 IL 121450, ¶ 21 (if it is clear that the legal

claims fail, or the successive petition with supporting documentation is insufficient to justify

further proceedings, the motion for leave to file a successive petition should be denied).

¶ 15 III. CONCLUSION

¶ 16 For the foregoing reasons, we affirm the denial of the defendant’s motion for leave to file

a successive postconviction petition.

¶ 17 Affirmed.