People v. Franklin

2020 IL App (1st) 171628

Opinion

2020 IL App (1st) 171628 No. 1-17-1628 Opinion filed September 30, 2020

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 92 CR 23967 ) JEROME FRANKLIN, ) The Honorable ) William H. Hooks, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Lampkin concurred in the judgment and opinion. Justice Burke dissented, with opinion.

OPINION

¶1 Defendant Jerome Franklin claims that the trial court erred by denying

him leave to file a successive postconviction petition challenging his sentence.

¶2 Defendant, age 18, was convicted after a bench trial of first degree

murder and sentenced to imprisonment for the rest of his natural life. No. 1-17-1628

Defendant claims that, as applied to him, a sentence of life without the

possibility of parole violates the eighth amendment and the proportionate

penalties clause, when he did not have a single prior adult or juvenile

conviction and when one considers his youth in conjunction with his mental

health, substance abuse and other issues at the time of the offense.

¶3 For the following reasons, we find that his petition meets the very low

threshold required for merely filing.

¶4 BACKGROUND

¶5 Defendant was convicted of the murder of his six-month- old son. When

the baby was born, defendant’s girlfriend, the baby’s mother, was only 15 years

old, and defendant was 17 years old and had left school in the tenth grade.

When the baby died, defendant was five months past his eighteenth birthday.

The assistant medical examiner testified that some of the baby’s injuries were

newer and others were more remote in time. A detective testified that, shortly

after defendant was arrested, defendant told him “that he thought he needed

help. He said things would run through his mind. He couldn’t control himself.”

After his arrest, defendant was diagnosed at Cermak Hospital with a

nonspecific psychosis and treated with psychotropic medication. Prior to trial,

the trial court conducted fitness hearings and ultimately found defendant fit to

stand trial.

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¶6 I. Evidence at Trial

¶7 In this court’s prior order denying defendant’s direct appeal (People v.

Franklin, No. 1-97-0514 (1998) (unpublished order under Illinois Supreme

Court Rule 23)), we described the facts established at trial. In summary,

Katherine Means, also known as Katherine Taylor, was the baby’s mother and

defendant’s girlfriend. On Thursday, September 17, 1992, Katherine, age 16,

and defendant, age 18, went to Katherine’s mother’s house to retrieve their

baby. Katherine’s mother refused to give defendant the baby, so Katherine

went into her mother’s house to retrieve Jerome, Jr., age six months.

¶8 Katherine’s mother, Dorothy, told Katherine that Jerome, Jr., had a cold,

a diaper rash, was teething and had a scratch on his chest, which she noticed

while changing his diaper, but no other injuries.

¶9 The couple then took Jerome, Jr., to Katherine’s aunt Regina Taylor’s

apartment. Katherine’s friend, Karen Jones, lived in the same building and

observed Katherine, defendant and the baby, and observed that the baby was

fine. Katherine, defendant and the baby spent the night in a bedroom in

Regina’s apartment.

¶ 10 On Friday, September 18, Katherine awoke around noon and fed and

bathed Jerome, Jr., She noticed scratches on the left side of the baby’s neck that

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were not there the previous day. Katherine spent the rest of the day at Karen’s

apartment while defendant had possession of the baby.

¶ 11 On Saturday, September 19, Katherine again woke around noon, and

went to Karen’s apartment. She was “in” and “out” of Karen’s house during the

afternoon, helping Karen clean her home. Defendant had possession of the

baby at Regina’s apartment. Katherine returned to Regina’s apartment to check

on the baby and defendant at around 7 p.m. and found the two asleep in the

bedroom. Katherine returned to Karen’s apartment where she remained until

around 11 p.m. Returning to Regina’s apartment, Katherine noticed that the

baby’s head was “hanging like a rag doll” and “he had been sleeping all day,”

which was unusual for the baby. Katherine noticed the scratches that she had

observed on the baby’s neck the day before and asked defendant what was

wrong with the baby, and what had happened to the baby’s neck.

¶ 12 Katherine testified defendant told her, “we have to talk.” She said he told

her the baby was crying all day. Defendant also said he “called [Jerome, Jr.,] a

sissy and *** bit [Jerome, Jr.,] *** on his shoulders.”

¶ 13 Katherine woke up the next morning at around noon, and the baby’s

condition appeared worse. The baby was “not responding to [Katherine], ***

he just was looking, like staring off into space. If [Katherine] would talk to him

or try to talk to him he wouldn’t respond.” He made “little sighs” throughout

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the day. Katherine showed the baby to Karen. Karen noticed what she believed

was a burn mark on Jerome, Jr.,’s neck. The mark was oozing juicy flesh, and

upon closer inspection Karen saw bite marks.

¶ 14 That night, Katherine took a bath, leaving the baby with defendant.

When she returned, she laid the baby on her chest and went to sleep. When she

woke up, after midnight, she noticed Jerome, Jr., had stopped breathing.

Katherine screamed and ran to Karen’s house. Karen’s boyfriend called an

ambulance. Karen said the baby’s entire body was blue.

¶ 15 While they waited for the ambulance, defendant and Katherine went into

the hallway. Katherine testified defendant told her to think of a name and tell

the police it was that person’s fault the baby died. Paramedics arrived 10

minutes later and took Jerome, Jr., to the hospital.

¶ 16 Lynn Huffman, a paramedic firefighter, testified that paramedics

attempted CPR and other emergency measures, but Jerome, Jr., did not respond.

Huffman noticed the baby’s left shoulder had bruises and burn marks, the

baby’s abdomen was bruised, and there were scabbed cuts all over his chest.

He estimated the baby had been dead for at least 10 minutes.

¶ 17 While at the hospital, Officer Anthony Mickel observed the baby’s body

and said he observed “bruises and burn marks from [the baby’s] neck to his

feet. He had bite marks also on his back and shoulders. He had what appeared

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to be bruises or burns *** on the bottom of one foot. And *** what appeared to

be trauma to the groin area.”

¶ 18 Katherine testified before a grand jury that she did not burn or strike the

baby, and that no one else except defendant took care of the baby the weekend

of September 18.

¶ 19 The doctor who attended Jerome, Jr., testified the baby was essentially

dead on arrival. The baby had many fresh abrasions and some that were

healing. The doctor identified circular marks on Jerome, Jr.,’s back consistent

with bite marks, and found bruises on the baby’s back and chest as well as

blisters on the soles of his feet.

¶ 20 Detective Michael Rose spoke with defendant who claimed to have had

no involvement in his son’s death. Defendant told Detective Rose, “until the

baby walks, that baby is none of his responsibility and he wanted nothing to do

with the baby until the time it walked.”

¶ 21 Later, defendant told the police that Katherine caused the baby’s injuries.

He claimed Katherine shook the baby, the baby’s eyes became really wide, and

the baby did not act the same afterwards. Defendant said he bit and slapped the

baby to make him respond, and that Katherine held the baby up to an open or

uncovered light and burned the baby’s back.

6 No. 1-17-1628

¶ 22 Subsequently, defendant told Detective Rose that he thought he needed

help, that things kept running through his mind, and that he could not control

himself. Defendant said the baby was crying all that day Friday, and that

defendant slapped the baby’s legs several times in an attempt to make him stop

crying. However, the baby continued to cry most of Saturday. Around 3 p.m.

Saturday, defendant lifted Jerome, Jr., and shook him. The baby’s eyes became

really large and he never appeared the same again. Defendant said he slapped

Jerome, Jr.,’s chest and bit his shoulders to try to elicit a response. He bit the

baby several times on Sunday for the same purpose. Defendant signed a

statement attesting to these facts, read it out loud, and made corrections to it in

front of the officers and an assistant state’s attorney.

¶ 23 Dr. Robert Kirschner testified that he performed the autopsy on Jerome,

Jr. Dr. Kirschner said the baby had multiple injuries, both fresh and healing.

The left side of the baby’s head was bruised, as was the left outer margin of the

baby’s left eye and cheek. There was also a fresh tear in his upper lip, which

was still bleeding, caused by blunt force from a fist or hand or an object being

forced into his mouth. There were bruises to the baby’s forehead and the side

of his face that were probably caused by a fist or hand. Jerome, Jr.,’s neck was

covered with abrasions that were healing. The baby’s left shoulder had

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numerous abrasions and contusions, most notably bite marks. 1 These marks

ranged in age from a day or two to several days old. Jerome, Jr.,’s body had

bite marks on the right shoulder that were also several days old. The bruises on

the baby’s face and head were more recent, having occurred 12 to 24 hours

before the baby’s death. Dr. Kirschner also noted severe bruises and abrasions

to Jerome, Jr.,’s left buttock cause by a hand or fist. There was also a burn to

the mid-level of the baby’s back that was four to five days old. Both of Jerome,

Jr.,’s feet had burns and blisters, some of which were ruptured. Dr. Kirschner

opined that the burns were caused by a hot circular object such as a heated

spoon or a light bulb.

¶ 24 Dr. Kirschner testified there was internal hemorrhaging under the baby’s

scalp due to blunt trauma. There were several areas of impact on his head, and

bruising of his brain, which the doctor said was the result of the baby being

struck by a fist or hand, or some other object, for example a telephone book.

Dr. Kirschner said bruising, like that in this case, is inconsistent with “shaken

baby syndrome,” and that the injuries here resulted from “a lot of force, ***

1 Dr. John Kenny, a forensic odontologist, testified the bite marks were made by defendant. The use of bite mark evidence has since been called into question but this does not affect the issues before us. See, e.g.Balko, Rodney, “Incredibly, prosecutors are still defending bite mark evidence,” The Washington Post, Jan. 30, 2017 (“As of today, bite mark evidence has led to more than two dozen wrongful arrests or convictions.”), https://www.washingtonpost.com/news/the- watch/wp/2017/01/30/incredibly-prosecutors-are-still-defending-bite-mark- evidence/ 8 No. 1-17-1628

violent force.” The hemorrhaging in the left occipital region of the head caused

the baby to become comatose immediately, thereby precluding normal activity

after the injury occurred. Dr. Kirschner opined that the baby died as the result

of multiple injuries due to child abuse, in particular blunt head trauma with

subdural hematoma and bruising to the brain. The manner of death was

homicide.

¶ 25 II. Psychological Evidence at Trial

¶ 26 In addition to the evidence concerning the murder, the following

psychological evidence regarding defendant was also admitted at trial.

¶ 27 Dr. Michael Stone, a psychologist called by the defense, was accepted by

the court as an expert in forensic psychology.2 Based on Stone’s review of the

records from Cermak Hospital, Stone testified that defendant had been placed in

full leather restraints for close to two weeks after his arrest in 1992, and was

given “strong dosages of medication.” Stone explained that restraints are “a last

line of defense,” with the preference always being for the least restrictive

treatment. Three years later, in August 1995, while incarcerated, defendant was

again hospitalized for psychosis. After psychological testing, Stone diagnosed

defendant as a paranoid schizophrenic. Stone observed that one of the

2 Defense counsel asked the trial court to find the witness to be “declared an expert in the field of forensic psychology.” The prosecutor objected and the trial court stated “[o]verruled.” 9 No. 1-17-1628

psychiatrists who had found defendant fit to stand trial “also continued a

treatment regime of anti-psychotic and anti-depressants at a high level,” which

is how “you would treat someone who was psychotic.” Based on Stone’s review

of the records and his own examination and testing of defendant, Stone opined

that, at the time of the offense, defendant was severely impaired, both mentally

and emotionally, such that he was unable to appreciate the criminality of his

actions and unable to conform his actions to the requirements of the law.

¶ 28 In rebuttal, the State called three mental-health doctors, Dr. Matthew

Markos, Dr. Paul Fauteck, and Dr. Roni Saltzberg, who had examined

defendant prior to trial and determined that he was fit to stand trial. All three

doctors had the same employer, namely, the Psychiatric Institute, which is part

of the Forensic Clinical Services of the circuit court of Cook County. Dr.

Markos and Dr. Saltzberg are psychiatrists and Dr. Fauteck is a psychologist.

The trial court found Drs. Markos and Saltzberg 3 qualified as experts in

forensic psychiatry, and found Dr. Fauteck qualified as an expert in forensic

psychology.

3 The prosecutor stated that he tendered Dr. Saltzberg as an expert in forensic psychiatry, and defense counsel stated that he had one question. After the one question, the trial court stated “[p]roceed” without stating that it accepted Dr. Saltzberg as an expert, but the court and the parties appeared to proceed on that basis. 10 No. 1-17-1628

¶ 29 Dr. Saltzberg testified that it was her opinion that defendant was “legally

sane at the time of the alleged offense,” although he suffered from personality

and substance abuse disorders. Saltzberg interviewed defendant in 1994, a

couple of years after the offense, and agreed that, “of all schizophrenics,”

paranoid schizophrenics are the “most adept at hiding their symptoms.”

¶ 30 Dr. Markos testified that he interviewed defendant once, for 45 minutes

to an hour on November 19, 1993, which was over a year after the baby’s death

and when defendant was being actively treated with Thorazine, Haldol, Prozac

and Cogentin. Dr. Markos acknowledged that Thorazine is an anti-psychotic

medication used in the acute management of psychosis, that Haldol is an anti-

psychotic medication used for chronically psychotic patients, that Cogentin is

used to counteract the side effects of medications like Thorazine and Haldol,

and that Prozac is an anti-depressant. Dr. Markos opined that these drugs were

used to treat defendant’s symptoms. Dr. Markos also acknowledged that

psychosis could cause the behavioral problems that defendant exhibited after

his arrest that required leather restraints. Dr. Markos acknowledged that

defendant was diagnosed with psychosis, first, on November 1, 1992, and,

again, two years later on August 4, 1994, at Cermak Hospital, which was both

before and after his single interview with defendant. Dr. Markos opined that

the notes from 1992 from Cermak Hospital indicated that defendant was

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hearing voices. Dr. Markos testified that he was not ruling out a mental

disorder. However, “[j]ust because a person has a history of mental disorder

does not necessarily mean that the person was legally insane.”

¶ 31 Dr. Fauteck testified that he interviewed defendant twice, once on

November 18, 1993, and once on November 28, 1994, and concluded both

times that defendant was legally sane at the time of the offense. His diagnosis

was of malingering and anti-social personality disorder. Dr. Fauteck testified

that his opinion of malingering was supported, in part, by the “extreme

elevation” of defendant’s test scores and by defendant’s present lack of

medication. However, Dr. Fauteck admitted on cross-examination that patients,

like defendant, who are in their late teens and members of minority groups

often score much higher on these tests and that there is a disorder known as

“schizophrenia short form disorder” that has the same characteristics as

schizophrenia but lasts only six months at a time.

¶ 32 III. Conviction and Sentencing

¶ 33 After listening to the evidence and closing arguments by counsel, the trial

court found defendant guilty of murder. On December 12, 1996, the State

sought the death penalty due to the heinous nature of this crime and the trial

court found defendant death-penalty eligible. The presentence investigation

report indicated that defendant had no prior adult or juvenile convictions.

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Defendant left school in the tenth grade and worked in part-time jobs, such as a

cook at Kentucky Fried Chicken and as a bagger at a Jewel Food Store. A letter

from Cook County jail indicated that he was enrolled in a GED program there.

His most recent behavioral clinical exam diagnosed him as having “a mixed

personality disorder.”

¶ 34 An alternative sentencing report provided by the defense supplied

additional facts, such as that defendant had to repeat the ninth grade. His

mother reported that he had been hospitalized for two separate head injuries

where he lost consciousness and that he frequently complained of headaches

and dizzy spells. Prior to the offense, he was using crack cocaine twice a week

to deal with “inner turmoil.” Both defendant and his mother confirmed that

defendant suffered from auditory hallucinations. A doctor from the Psychiatric

Institute had diagnosed defendant as having a “low average/borderline range

intelligence.”

¶ 35 Several witnesses testified at the ensuing death-penalty hearing. In

aggravation, the State called Veronica Franklin, defendant’s half-sister;

Katherine Means, defendant’s girlfriend and mother of the victim; and Officer

George Parker, who testified that, in 1991, he found defendant in possession of

a handgun but defendant was not charged.

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¶ 36 In mitigation, the defense called John Sturman,4 a professional

sentencing advocate, whose occupation was the preparation of mitigation

reports in death penalty cases. Based on his interviews with the family,

Sturman testified that defendant’s stepfather was abusive and that the family

had moved 20 times in 15 years.

¶ 37 Defendant’s age was discussed at the hearing only to establish that his

age qualified him for death-penalty consideration. The parties stipulated that,

on the date the baby died, defendant “was over the age of 18 years old.”

¶ 38 At the end of the hearing, the trial court announced that it had considered

all the evidence and found “that there are mitigating factors that preclude the

imposition of the death sentence.” However, the trial court did not specify what

these mitigating factors were or state anything about the facts or considerations

which had led the court to this finding. The trial court stated only: “I therefore

sentence the Defendant on the one count of first degree murder to a term of

natural life without parole in the Illinois Department of Corrections.” The trial

court offered no reasons, findings or explanations for the imposition of a life-

without-parole sentence. The only statement made by the trial court concerning

defendant’s motion to reconsider sentence was: “Motion to Reconsider the

4 Although the court reporter at the sentencing hearing transcribed his last name as “Stern,” a report filed by him in the record states that his name is “Sturman.” 14 No. 1-17-1628

Sentence will be denied.” The motion had listed no grounds or reasons for

reconsidering the sentence.

¶ 39 IV. Appeal and Post- Conviction Proceedings

¶ 40 On direct appeal, this court affirmed defendant’s conviction and

sentence. Franklin, No. 1-97-0514, slip order. at 11-13. Defendant

subsequently filed four pro se postconviction petitions and three pro se petitions

pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401

(West 2018)). One petition was entitled a “Motion to Quash Indictment,” but

the court analyzed it as a section 2-1401 petition. The trial court dismissed each

of these petitions, and this court affirmed these dismissals on appeal. People v.

Franklin, Nos. 1-00-3060, 1-01-1065, 1-01-3186 (cons.) (2002) (unpublished

summary order under Illinois Supreme Court Rule 23(c)); People v. Franklin,

No. 1-03-0592 (2004) (unpublished summary order under Illinois Supreme

Court Rule 23(c)); People v. Franklin, No. 1-04-3653 (2006) (unpublished

summary order under Illinois Supreme Court Rule 23(c)); People v. Franklin,

2015 IL app (1st) 133284-U (unpublished order under Supreme Court Rule 23);

People v. Franklin, No. 1-15-1295 (2017) (summary order).

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¶ 41 ANALYSIS

¶ 42 I. Successive Petition

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

2018)) provides a statutory remedy for criminal defendants who claim their

constitutional rights were violated at trial. People v. Edwards, 2012 IL 111711,

¶ 21.

¶ 44 Although our supreme court has made clear that the Act contemplates

only one postconviction proceeding, “[n]evertheless, [the supreme] court has, in

its case law, provided two bases upon which the bar against successive

proceedings will be relaxed” (Edwards, 2012 IL 111711, ¶ 22). Those two

bases are (1) cause and prejudice and (2) actual innocence. Edwards, 2012 IL

111711, ¶ 22. Defendant has alleged only the former.

¶ 45 Under the cause-and-prejudice test, a defendant must establish both (1)

cause for his or her failure to raise the claim earlier and (2) prejudice stemming

from his or her failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People

v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)).

¶ 46 Defendant established cause because he could not have raised claims

based on People v. House, 2019 IL App (1st) 110580-B, People v. Harris, 2018

IL 121932, and Miller v. Alabama, 567 U.S. 460 (2012), until those cases were

decided. This court has made this same finding repeatedly in other similar

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cases. People v. Minniefield, 2020 IL App (1st) 170541, ¶ 31; People v.

Carrasquillo, 2020 IL App (1st) 180534, ¶ 108 (where defendant filed his

original petition years before Miller, we found that he established cause to raise

a Miller claim, since he “certainly could not have raised a claim based on a line

of cases that had not even been decided yet”). See also People v. Warren, 2016

IL App (1st) 090884-C, ¶ 48 (defendant was not barred from raising his

challenge on appeal from the denial of leave to file a successive petition, where

“Miller was not available for earlier postconviction proceedings”); People v.

Sanders, 2016 IL App (1st) 121732-B, ¶ 19 (Miller “changed the law and gives

postconviction petitioners cause for failing to raise the issue in proceedings that

preceded” it).

¶ 47 II. Eighth Amendment

¶ 48 To determine prejudice, defendant asks us to look toward recent law

under both the eighth amendment and the proportionate penalties clause.

¶ 49 In the case at bar, there is no question that defendant received a life

sentence since he was sentenced to natural life without the possibility of parole.

However, there is also no question that defendant was over 18 years old. It is

well established that offenders who are 18 years and older cannot raise a facial

challenge to their sentences under the eighth amendment and the Miller line of

cases. Harris, 2018 IL 121932, ¶¶ 59-61.

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¶ 50 Although defendant was five months past his eighteenth birthday at the

time of his offense, he argues that his youth in conjunction with his mental

health and other issues demonstrate that a life sentence was inappropriate. In

other words, the argument with respect to the eighth amendment is that his

mental health and other issues at the time of the offense made him the

functional equivalent of a juvenile and, thus, his sentence is unconstitutional as

applied to him.

¶ 51 Although defendant raises an as-applied challenge rather than a facial

challenge, Illinois courts typically consider the sentencing claims of young

adults under the proportionate penalties clause rather than the eighth

amendment. E.g., Minniefield, 2020 IL App (1st) 170541, ¶¶ 37-38

(considering a 19-year-old defendant’s as-applied sentencing claim under the

proportionate penalties clause rather than the eighth amendment). This is

because federal cases have generally drawn a line at 18 years of age

(Minniefield, 2020 IL App (1st) 170541, ¶ 37) and because, as we explain

below, the proportionate penalties clause offers a broader path to the same types

of relief.

¶ 52 III. Proportionate Penalties Claim

¶ 53 Defendant’s petition alleges that his sentence is unconstitutional under

the Illinois Constitution, because it ignores his rehabilitative potential.

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¶ 54 Like the eighth amendment, the proportionate penalties clause of the

Illinois Constitution embodies our evolving standard of decency. See People v.

Miller, 202 Ill. 2d 328, 339 (2002) (“as our society evolves, so too do our

concepts of elemental decency and fairness which shape the ‘moral sense’ of

the community” underlying both the proportionate penalties clause and the

eighth amendment). The proportionate penalties clause provides that “[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. This constitutional provision requires the balancing of

the twin goals of retribution and rehabilitation, which requires a careful

consideration of all the factors in aggravation and mitigation, including

defendant’s age and mental health. People v. Quitana, 332 Ill. App. 3d 96, 109

(2002).

¶ 55 “The purpose of the proportionate penalties clause is to add a limitation

on penalties beyond those provided by the eighth amendment and to add the

objective of restoring the offender to useful citizenship.” Minniefield, 2020 IL

App (1st) 170541, ¶ 35. Thus, the proportionate penalties clause goes further

than the eighth amendment in offering protection against oppressive penalties.

Minniefield, 2020 IL App (1st) 170541, ¶ 35. See also People v. Clemons, 2012

IL 107821, ¶ 39; People v. Fernandez, 2014 IL App (1st) 120508, ¶ 63 (“the

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Illinois Constitution places greater restrictions on criminal sentencing than the

eighth amendment’s prohibition”). Unlike other constitutional provisions

affecting criminal defendants, these two provisions—the eighth amendment and

the proportionate penalties clause—are not in lockstep. See Minniefield, 2020

IL App (1st) 170541, ¶ 35.

¶ 56 IV. Life Without the Possibility of Parole

¶ 57 As noted above, our proportionate penalties clause requires a balancing

of the twin goals of retribution and rehabilitation. However, defendant’s

sentence of natural life without the possibility of parole provides no opportunity

for “restoring the offender to useful citizenship.” Ill. Const. 1970, art I, § 11.

“A sentence of life imprisonment without parole *** cannot be justified by the

goal of rehabilitation. The penalty forswears altogether the rehabilitative

ideal.” Graham v. Florida, 560 U.S. 48, 74 (2010).

¶ 58 Life without parole is the most severe penalty now permitted by Illinois

law, and it shares “characteristics with death sentences that are shared by no

other sentences.” Graham, 560 U.S. at 69. See also People v. Patterson, 2014

IL 115102, ¶ 108 (the death penalty is unique and shares characteristics with no

other sentence “besides life without parole”). “Life without parole is similar to a

death sentence in that it ‘alters the offender’s life by a forfeiture that is

irrevocable.’ ” People v. Utley, 2019 IL App (1st) 152112, ¶ 108 (Gordon, J.,

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dissenting) (quoting Graham, 560 U.S. at 69). A life sentence is “far more

severe” when it denies the possibility of parole. Solem v. Helm, 463 U.S. 277,

297 (1983). See also Graham, 560 U.S. at 70. Such a sentence “ ‘means that

good behavior and character improvement are immaterial; it means *** he will

remain in prison for the rest of his days.’ ” Graham, 560 U.S. at 70 (quoting

Naovarath v. State, 105 Nev. 525, 526 (1989)). “It deprives the convict of the

most basic liberties” without giving any “hope of restoration.” Graham, 560

U.S. at 69.

¶ 59 Thus, life without the possibility of parole should be reserved for those

rare offenders who are beyond hope of redemption. The record in this case

does not show whether this defendant is beyond the hope of redemption.

¶ 60 V. Age and Mental Health

¶ 61 Defendant argues that Illinois law treats young adults under 21 years of

age differently than adults, and that is correct.

¶ 62 Recent and traditional legislative enactments support the view that

“youthful offender[s]” are those under the age of 21. 730 ILCS 5/3-3-9(a) (1.5)

(West 2018) (parole review for under 21-year-olds is called “youthful offender

parole”). For example, last year, our legislature changed the law to make a

person convicted of first degree murder eligible for parole after serving only 20

years, if he or she was under 21 years old at the time of the offense and was

21 No. 1-17-1628

sentenced after the law took effect. Pub. Act 100-1182 (eff. June 1, 2019)

(adding 730 ILCS 5/5-4.5-110); Pub. Act 101-288, § 5 (eff. Jan. 1, 2020)

(amending 730 ILCS 5/5-4.5-110(b) and renumbering as 730 ILCS 5/5-4.5-

115(b)). Urging passage of this bill, House Majority Leader Barbara Flynn

Currie argued that under-21-year-olds are “young people” who “do not always

have good judgment.” 100th Ill. Gen. Assem., House Proceedings, Nov. 28,

2018, at 48-49 (statements of Representative Currie). The Juvenile Court Act

of 1987 defines a “[m]inor” as “a person under the age of 21 years subject to

this Act” (705 ILCS 405/1-3(10), 405/5-105(10) (West 2018)), while an “

‘[a]dult’ means a person 21 years of age or older” (705 ILCS 405/1-3(2) (West

2018)).

¶ 63 There are many other ways in which our state treats under-21-year-olds

differently, such as prohibiting sales to them of alcohol (235 ILCS 5/6-16(a)(i)

(West 2018)), cigarettes (Pub. Act 101-2, §25 (eff. July 1, 2019) (amending 720

ILCS 675/1)), and wagering tickets (230 ILCS 10/18(b)(1) (West 2018)),

prohibiting their gun ownership without parental permission (430 ILCS

65/4(a)(2)(i) (West 2018)) and limiting Class X sentencing for recidivist

offenders to those offenders “over the age of 21 years” (730 ILCS 5/5-4.5-95(b)

(West 2018)). See also People v. Mosley, 2015 IL 115872, ¶ 36 (a ban on

handgun possession by “ ‘minors’ ” under 21 does not violate the second

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amendment); 760 ILCS 20/2(1) (West 2018) (Illinois Uniform Transfers to

Minors Act defines an adult as one “21 years of age” or older).

¶ 64 The argument that mental health issues may lower a defendant’s

functional age also finds support in our recent caselaw. For example, this court

found that the mental and emotional development of a nonjuvenile but still

youthful defendant should be considered in assessing his culpability and

fashioning an appropriate sentence. House, 2019 IL App (1st) 110580-B, ¶ 59,

see also People v. Ramos, 353 Ill. App. 3d 133, 137 (2004) (sentencing court

must consider a defendant’s “mentality”), Quitana, 332 Ill. App. 3d at 109

(sentencing court must consider a defendant’s “mentality”). Even for a mature

adult, our law requires a sentencing court to consider whether, at the time of

offense, a sane defendant was nonetheless suffering from a mental illness which

substantially affected his ability to conform his conduct to the requirements of

the law. 730 ILCS 5/5-5-3.1(a)(16) (West 2018).

¶ 65 Defendant’s arguments also find support in the factual record. Although

there were dueling experts at his trial and the trial court found defendant fit to

stand trial, sanity is not the issue before us. A defendant is unfit to stand trial if,

based on a mental or physical condition, he is unable to understand the nature

and purpose of the proceedings against him or to assist in his defense. People v.

Cook, 2014 IL App (2d) 130545, ¶ 12. By contrast, a mental illness may be a

23 No. 1-17-1628

mitigating factor at sentencing, even if it is insufficient to undermine a

defendant’s fitness to stand trial. 730 ILCS 5/5-5-3.1(a)(16) (West 2016)

(mental illness is one of the statutorily listed mitigating factors).

¶ 66 A review of the sentencing transcript makes clear that the trial court gave

no consideration to defendant’s age except for determining that it qualified him

for death-penalty consideration. Not only was there no consideration of the

attendant characteristics of youth, just the opposite was true. The finding was

that, although he was barely over the statutory age, his age qualified him for

death-penalty consideration.

¶ 67 It must be remembered that this is an 18-year-old without a single prior

adult or even juvenile conviction. Dr. Stone testified, without contradiction,

that the onset for schizophrenia is commonly at this age and, thus, based on

defendant’s age, defendant “would be precisely at risk for this problem” at the

time of the offense. Defendant’s mother reported, also without contradiction,

that defendant had suffered multiple head traumas, requiring hospitalization,

and that he continued to suffer from headaches and dizzy spells. We are

troubled by the seeming depravity of this offense, but it is up to the trial court to

balance the seriousness of the offense with the other factors in this case, such as

defendant’s own repeated head traumas, his mental illness at the time of the

current offense, the treatment he received in prison and his rehabilitative

24 No. 1-17-1628

potential. A reviewing court cannot observe what a trial court observes, and so

it is important for the trial court to set forth its reasons.

¶ 68 The law is in the developmental stage as to the sentencing of young

offenders, and it is important for a trial court to create an appropriate record

during both postconviction proceedings and sentencings so that a reviewing

court can understand the factors the court used in making its decision or

rendering a sentence.

¶ 69 For the foregoing reasons, we find that defendant has made a sufficient

legal and factual showing for his petition to be filed. We remand to allow the

trial court to consider whether his mental health and other issues at the time of

the offense rendered defendant functionally under 18 years old or whether, as

applied to him, as someone under 21-years-old, his sentence of natural life

without the possibility of parole violates the proportionate penalties clause of

our state.

¶ 70 VI. Remand Required

¶ 71 Our supreme court has found that the proper vehicle for a young adult

such as defendant, who is between 18 and 21 years old, to raise an as-applied

challenge to a life sentence is in a postconviction proceeding. Harris, 2018 IL

121932, ¶ 48; Carrasquillo, 2020 IL App (1st) 180534, ¶ 109; see also People

v. Thompson, 2015 IL 118151, ¶ 44 (appropriate vehicle for an as-applied

25 No. 1-17-1628

challenge by a 19-year-old offender to a life sentence is a postconviction

petition, “including *** a successive petition”). When a defendant claims that

the evolving science discussed in Miller and other cases applies to young adults

between 18 and 21, the trial court is the most appropriate tribunal for factual

development, and it is paramount that the record be developed for this purpose.

People v. Holman, 2017 IL 120655, ¶¶ 29-30. A ruling without a developed

record is “premature.” Harris, 2018 IL 121932, ¶ 46; Carrasquillo, 2020 IL

App (1st) 180534, ¶ 109.

¶ 72 As in Harris, 2018 IL 121932, ¶ 46, and in Minniefield, 2020 IL App

(1st) 170541, ¶ 47, the record in the case at bar contains “no evidence about the

evolving science and its impact on defendant’s case.” Minniefield, 2020 IL App

(1st) 170541, ¶ 47. Therefore, “[d]efendant has shown prejudice by

establishing a ‘catch-22’[5]—without a developed record, he cannot show his

constitutional claim has merit, and without a meritful claim, he cannot proceed

to develop a record.” Carrasquillo, 2020 IL App (1st) 180534, ¶ 109.

¶ 73 For these reasons, we reverse and remand for second-stage

postconviction proceedings. People v. Wrice, 2012 IL 111860, ¶ 90 (“reversing

5 “A ‘catch-22’ is defined as ‘[a] dilemma or difficult circumstance from which there is no escape because of mutually conflicting or dependent conditions.’ ” Carrasquillo, 2020 IL App (1st) 180534, ¶ 109 n.16 (quoting Lexico, https://www.lexico.com/en/definition/catch-22 (last visited June 1, 2020) [https://perma.cc/A52N-HTMM]). 26 No. 1-17-1628

the trial court’s order denying leave to file his second successive postconviction

petition and remand[ing] to the trial court for *** second-stage postconviction

proceedings”); People v. Jackson, 2015 IL App (3d) 130575, ¶ 14 (“When a

defendant is granted leave to file a successive postconviction petition, the

petition is effectively advanced to the second stage of postconviction

proceedings.”).

¶ 74 Reversed and remanded.

¶ 75 Justice Burke, dissenting.

¶ 76 I write separately because I disagree with the majority’s conclusion that

defendant satisfied the cause-and-prejudice test for filing a successive

postconviction petition. The majority concludes that defendant satisfied the

cause element because he could not have raised the argument concerning his

sentence before the Supreme Court’s decision in Miller and the cases that

followed. However, Miller provides sentencing protections only for offenders

who were juveniles at the time of their offense. Defendant was not a juvenile at

the time of the offense. As a result, defendant cannot show prejudice because he

was never entitled to the protections afforded to a juvenile. The cases cited by

the majority expanding Miller protections to young adults are outliers with

either extraordinary factual circumstances or flawed reasoning and they should

not be followed in this case. As such, I would find that defendant is not entitled

27 No. 1-17-1628

to seek relief under Miller and its progeny and I would affirm the circuit court’s

denial of leave to file. Accordingly, for the reasons stated below, I must

respectfully dissent.

¶ 77 A. Evidence at Trial

¶ 78 The majority sets forth the factual record at length; however, I feel it is

important to highlight the evidence concerning the injuries defendant inflicted

on Jerome Jr., his six-month-old son. Based on the testimony of defendant’s

girlfriend, Katherine, and her friend, Karen, defendant scratched, bit, burned,

and struck the baby, before eventually beating him so severely that Jerome Jr.

suffered brain hemorrhaging, which led to his death. The testimony of the

doctor who performed the autopsy, Dr. Kirschner, is particularly disturbing,

detailing the numerous injuries to the infant. Jerome Jr.’s neck and shoulders

were covered with abrasions, including bite marks. He was badly bruised on his

face, head, and buttocks, and he had been burned by a hot circular object or a

lightbulb. Some of these wounds were days old, indicating that defendant’s

abuse of the child extended well before the night in question where defendant

struck Jerome Jr. with “a lot of *** violent force” causing him to suffer fatal

brain hemorrhaging.

¶ 79 The evidence adduced at trial also showed defendant’s awareness that his

actions were wrong. Rather than tell Katherine about what he had done to the

28 No. 1-17-1628

baby, he allowed her to continue caring for it as though he had not been abusing

him. When defendant learned that an ambulance was coming for Jerome Jr.,

rather than admit his fault, he told Katherine that they should think of someone

else to blame for the baby’s death. He then lied to police officers and told them

that Katherine had been responsible for shaking the baby and causing his death.

He even attempted to blame Katherine for the burns on the baby, saying that she

held him against a light after shaking him. After admitting to the officers that he

was the one who shook the baby, he then started trying to fabricate a mental

illness defense. As the majority sets out at length, two psychiatrists and a

psychologist found defendant fit to stand trial. The majority attempts to cast

doubt on the expert testimony of the three State experts by pointing out that

they were all employed by the Forensic Clinical Services of the Circuit Court of

Cook County, but ignores that the defense expert psychologist, Dr. Michael

Stone, has testified in nearly a dozen cases that have reached this court, each

time on behalf of the defendant in support of an insanity defense. See, e.g.,

People v. Weeks, 2011 IL App (1st) 100395, ¶ 7; People v. Dresher, 364 Ill.

App. 3d 847, 853-54 (2006); People v. Smith, 2016 IL App (1st) 141442-U, ¶¶

23-25 (unpublished order under Illinois Supreme Court Rule 23).

29 No. 1-17-1628

¶ 80 Defendant has also a direct appeal, four pro se postconviction petitions,

and three pro se section 2-1401 petitions. The current petition thus represents

defendant’s ninth post-conviction challenge to his conviction and sentence.

¶ 81 II. ANALYSIS

¶ 82 A. Cause and Prejudice

¶ 83 As the majority sets forth, in order for defendant to file this successive

petition under the Act, he must first satisfy the cause and prejudice test.

Defendant maintains that he satisfied the cause element of the cause-and-

prejudice test because he could not have filed his petition before the Supreme

Court announced the new juvenile sentencing rules in Miller, which this court

then extended to young adults in People v. House, 2015 IL App (1st) 110580

(House I) and reaffirmed in People v. House, 2019 IL App (1st) 110580-B

(House II), appeal allowed, No. 125124 (Ill. Jan. 29, 2020). Defendant asserts

that he established prejudice because the sentencing court could not have

considered the Miller factors or the emerging science concerning brain

development in young adults in determining his sentence. He contends that his

sentence of life imprisonment without the possibility of parole therefore

violates the eighth amendment and the proportionate penalties clause where the

sentencing court failed to consider his youth and its attendant circumstances

30 No. 1-17-1628

before sentencing him to a term of life imprisonment without the possibility of

parole.

¶ 84 B. Eighth Amendment

¶ 85 I will first address defendant’s claims in the context of the eighth

amendment. The majority briefly discusses defendant’s claims under the eighth

amendment before quickly jumping into its proportionate penalties clause

analysis noting, without resolving, that both federal courts and Illinois courts

have drawn the line for Miller protections at 18 years old under the eighth

amendment. Defendant, however, asserts that his sentence should be vacated

under the eighth amendment because the bar on discretionary life sentences for

juveniles established by the Miller line of cases should be extended to him

because he was only 18 years old at the time of the offense. He argues that

recent decisions of this court and the supreme court have cast doubt on the

arbitrary line of demarcation between offenders under the age of 18 years old

and those who are barely over it and recognize that an 18 year old may have a

cognizable Miller-based claim to be raised under the Act.

¶ 86 I find defendant’s eighth amendment challenge unpersuasive. As the

supreme court recognized in People v. Harris, “claims for extending Miller to

offenders 18 years of age or older have been repeatedly rejected.” People v.

Harris, 2018 IL 121932, ¶ 61 (collecting authorities). The court continued that

31 No. 1-17-1628

“[w]e agree with those decisions and our appellate court that, for sentencing

purposes, the age of 18 marks the present line between juveniles and adults.” Id.

Consistent with that ruling, this court has routinely held that Miller’s eighth

amendment protections extend only to juvenile offenders under the age of 18.

See, e.g., People v. Handy, 2019 IL App (1st) 170213, ¶ 37 (collecting

authorities); People v. LaPointe, 2018 IL App (2d) 160903, ¶ 47 (“Miller

simply does not apply to a sentence imposed on one who was at least 18 at the

time of his offense. Thus, defendant did not show that prejudice resulted from

the omission of the eighth-amendment claim from his initial petition under the

Act.”); People v. Pittman, 2018 IL App (1st) 152030, ¶ 31 (“Miller protections

under the eighth amendment are not implicated in cases of adult offenders”);

People v. Thomas, 2017 IL App (1st) 142557, ¶ 28 (sentence for 18-year-old

defendant “that approaches the span of the defendant's lifetime” does not

implicate the eighth amendment).

¶ 87 Although defendant argues that the distinction between juvenile

offenders and young adult offenders is arbitrary, as this court noted in People v.

Herring, 2018 IL App (1st) 152067, ¶ 103, the Supreme Court “drew a line at

the age of 18 years; while it acknowledged the line was arbitrary, it ‘must be

drawn’ ” (quoting Roper v. Simmons, 543 U.S. 551, 570 (2005)). The Supreme

Court explained in Roper,

32 No. 1-17-1628

“Drawing the line at 18 years of age is subject, of course, to the

objections always raised against categorical rules. The qualities that

distinguish juveniles from adults do not disappear when an individual

turns 18. By the same token, some under 18 have already attained a level

of maturity that some adults will never reach. For the reasons we have

discussed, however, a line must be drawn. *** The age of 18 is the point

where society draws the line for many purposes between childhood and

adulthood.” Roper, 543 U.S. at 574.

Accordingly, because defendant was an adult at the time he committed the

offense, he is not afforded the same protections as a juvenile under Miller and

related cases and, therefore, I would find defendant failed to satisfy the cause

and prejudice test with regard to his eighth amendment claim.

¶ 88 C. Proportionate Penalties

¶ 89 Defendant next contends, and the majority agrees, that he showed cause

and prejudice under the proportionate penalties clause of the Illinois

Constitution. The majority concludes that the proportionate penalties clause

provides greater Miller-based sentencing protections for young adults than the

eighth amendment. This conclusion stands in contrast to the numerous cases

from other authors and divisions of this court drawing the exact opposite

conclusion. See, e.g., People v. Moore, 2020 IL App (4th) 190528, ¶¶ 38-41;

33 No. 1-17-1628

People v. Green, 2020 IL App (5th) 170462 ¶¶ 37-41; People v. White, 2020 IL

App (5th) 170345, ¶¶ 27-31; Handy, 2019 IL App (1st) 170213, ¶ 40. The

majority then discusses various aspects of Illinois law where offenders under

the age of 21 are treated differently than older offenders. The majority points

out recent decisions of the Illinois General Assembly concerning parole for

offenders under the age of 21 who commit first-degree murder. However, as the

majority notes, the provisions of that statute do not apply retroactively. The

majority then lists a number of instances where people under the age of 21 are

treated differently by the law, e.g., cigarette sales, alcohol sales, but none of

these examples seem particularly relevant to a case where an 18 year old was

found guilty of the first-degree murder of his six-month-old son after significant

abuse. The majority then goes on to discuss defendant’s mental health, noting

that defendant’s mental illness may be a mitigating factor at sentencing. The

majority again focuses on Dr. Stone’s testimony, but ignores that one of the

State experts found that defendant was malingering, and that all three State

experts found defendant fit to stand trial and not legally insane at the time of the

offense. As the majority notes, defendant’s mental health was discussed at

length at his trial and there is ample evidence from which the trial court

consider defendant’s mental health in determining his sentence. See People v.

McClurkin, 2020 IL App (1st) 171274, ¶ 22.

34 No. 1-17-1628

¶ 90 Defendant, for his part, relies on two recent appellate court decisions in

support of his proportionate penalties claim, House II 6 and People v. Williams,

2018 IL App (1st) 151373, appeal denied, judgment vacated, No. 123694 (Ill.

Nov. 28, 2018). Defendant asserts that these cases not only provide greater

Miller protections under the proportionate penalties clause than those afforded

by the eighth amendment, but also expand Miller and related cases so that

young adult offenders receive the same protections as juvenile offenders.

¶ 91 With regard to defendant’s reliance on Williams, I note that opinion was

vacated on February 2, 2019, after the supreme court issued a supervisory order

directing this court to consider the effect of the supreme court’s opinion in

Harris, 2018 IL 121932 on the issue of whether defendant’s sentence violated

the proportionate penalties clause. On remand, the matter was set for

supplemental briefing and later resolved on summary disposition by agreed

order without an opinion. Accordingly, I find no precedential value in Williams.

¶ 92 With regard to House II, I find the narrow circumstances of that case are

not applicable here. In House II, the 19-year-old defendant acted as the lookout

while other members of his gang executed two victims for selling drugs in their

territory. House II, 2019 IL App (1st) 110580-B, ¶¶ 5, 14, 17. The defendant 6 Defendant relied on a previous version of House in his postconviction petition. However, the House court reaffirmed its decision in House II following the vacation of House I based on a supreme court supervisory order following the supreme court’s decision in Harris, 2018 IL 121932. 35 No. 1-17-1628

was convicted of two counts of first-degree murder, then sentenced to two

consecutive mandatory life sentences. Id. ¶ 19. The defendant filed a direct

appeal and a petition under the Act. Id. ¶¶ 20, 21. In his postconviction petition,

the defendant contended, inter alia, that the imposition of a mandatory life

sentence was unconstitutional. Id. ¶ 23. The circuit court dismissed defendant’s

petition and defendant appealed that ruling to this court. Id. ¶¶ 23-24.

¶ 93 On appeal, this court determined that defendant was entitled to a new

sentencing hearing under Miller. Id. ¶ 32. The court distinguished the supreme

court’s ruling in Harris, 2018 IL 121932 by noting that the defendant in that

case was the “actual shooter,” while defendant House was convicted under a

theory of accountability. Id. The House II court explained that “defendant’s

conviction under the theory of accountability weighed heavily in our conclusion

that his mandatory natural life sentence shocked the moral conscience of the

community.” Id. The court “question[ed] the propriety of a mandatory natural

life sentence for a 19-year-old defendant convicted under a theory of

accountability.” Id. ¶ 46. The court noted that defendant received the same

sentence as the offenders who actually shot the victims. Id. The court also

discussed developing science showing the continuing brain development in

adolescents. Id. ¶ 47. Ultimately, the court concluded that, in light of the

circumstances, the defendant was entitled to a new sentencing hearing during

36 No. 1-17-1628

which the trial court could consider the relevant mitigating factors outlined in

Miller and related cases prior to determining his life sentence. Id. ¶ 65.

¶ 94 I find the reasoning in House II distinguishable from the facts of this case

in several respects. As noted, the fact that the defendant in House II acted only

as a lookout “weighed heavily” in the court’s conclusion. Here, in contrast,

defendant acted alone and was solely responsible for the burning, scratching,

biting, and beating death of his 6-month-old son. As this court noted in Handy,

“[w]hether a defendant physically committed the offense is a significant

consideration for courts tasked with deciding whether to extend Miller

principles to a young adult under the proportionate penalties clause.” Handy,

2019 IL App (1st) 170213, ¶ 40 (citing Pittman, 2018 IL App (1st) 152030, ¶

38). Another significant factor for the court in House II was that the defendant’s

sentence was mandatory. The court observed that the sentencing court’s “ability

to take any factors into consideration was negated by the mandatory nature of

defendant’s sentence.” House II, 2019 IL App (1st) 110580-B, ¶ 64. The House

II court noted that these mitigating factors included defendant’s age, family

background, the fact that he was only the lookout, his lack of prior violent

convictions, and his rehabilitative potential. Id. Here, defendant’s sentence was

discretionary, which allowed the court to consider the factors identified by the

court in House II. Indeed, the record shows that at his sentencing hearing,

37 No. 1-17-1628

defendant presented a pre-sentence investigation report and a “Client Specific

Sentencing Report.” The person who prepared the Client Specific Sentencing

Report testified at length at the sentencing hearing describing all of the factors

he considered in preparing the report, including defendant’s age, familial,

educational, and criminal background, and defendant’s potential for

rehabilitation. In exercising its discretion to determine defendant’s sentence, the

court noted that it considered all of the factors presented in mitigation.

Accordingly, “[b]ecause defendant was an adult, an active participant in the

crime[], and received a discretionary sentence, he is not entitled to a new

hearing for a more in-depth consideration of his youth under [House II].”

Handy, 2019 IL App (1st) 170213, ¶ 41.

¶ 95 Finally, I note that two recent decisions from another division of this

court followed this court’s ruling in House and disagreed with the

distinguishing factors—the defendant’s level of participation in the offense and

whether the sentence was discretionary or mandatory—identified in Handy. See

People v. Ruiz, 2020 IL App (1st) 163145 and People v. Johnson, 2020 IL App

(1st) 171362. I find that Ruiz and Johnson stand against the weight of the

authority on this issue and would decline to follow them. See, e.g., White, 2020

IL App (5th) 170345, ¶¶ 27-28 (distinguishing the ruling in House II on the

basis that the defendant was the principal and not convicted under a theory of

38 No. 1-17-1628

accountability); People v. Ramsey, 2019 IL App (3d) 160759, ¶ 23 (same);

Handy, 2019 IL App (1st) 170213, ¶¶ 40-41 (distinguishing the ruling in House

II on the basis that the defendant was the principal, not convicted under a theory

of accountability, and his sentence was discretionary); see also, Pittman, 2018

IL App (1st) 152030, ¶ 37-38 (distinguishing the ruling in House I on the basis

that the defendant was the principal and not convicted under a theory of

accountability); Thomas, 2017 IL App (1st) 142557, ¶ 34 (same); People v.

Ybarra, 2016 IL App (1st) 142407, ¶ 27 (same).

¶ 96 Accordingly, I would find that because the sentencing guidelines of

Miller are not extended to adult offenders under the proportionate penalties

clause, defendant has failed to establish the necessary cause and prejudice for

the filing of a successive postconviction petition and the circuit court properly

denied him leave to file his successive petition.

¶ 97 III. CONCLUSION

¶ 98 For the reasons stated, I would affirm the judgment of the circuit court of

Cook County.

39 No. 1-17-1628

No. 1-17-1628

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 92 CR 23967; the Hon. William H. Hooks, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Maria A. Harrigan, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Annette Collins, and Brian K. Hodes, Assistant State’s Appellee: Attorneys, of counsel), for the People.