2022 IL App (1st) 220122 No. 1-22-0122 Opinion filed December 15, 2022 Fourth Division ______________________________________________________________________________
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. 11 CR 3147 ) MARCELLUS FRENCH, ) Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Rochford and Martin concurred in the judgment and opinion.
OPINION
¶1 Defendant Marcellus French appeals from the circuit court’s order denying him leave to
file a successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-
1 et seq. (West 2018)). On appeal, defendant argues that he adequately alleged both cause and
prejudice for his failure to raise his proportionate penalties claim in his initial postconviction
petition. Defendant was 20 years old in August 2010 when he committed first degree murder and
aggravated battery with a firearm. Defendant was sentenced in 2014, filed his initial postconviction
petition in 2019, and filed the motion for leave to file the successive postconviction petition at No. 1-22-0122
issue in this case in 2021. Defendant’s proportionate penalties claim stems from caselaw
interpreting the eighth amendment to the United States Constitution as applied to juveniles and
that caselaw’s extension to young adult offenders via the proportionate penalties clause of the
Illinois Constitution. However, our supreme court in People v. Dorsey, 2021 IL 123010, foreclosed
defendant’s claim because it could have been raised in defendant’s initial petition. Therefore, we
affirm the judgment of the circuit court. 1
¶2 I. BACKGROUND
¶3 After a jury trial, defendant was found guilty of the first degree murder of Roger Kizer and
aggravated battery with a firearm of Estavion Thompson. Codefendant Bodey Cook was also
found guilty of first degree murder and aggravated battery with a firearm. The jury found that
defendant personally discharged a firearm that caused death. Defendant was sentenced to
consecutive terms of 55 years’ imprisonment for first degree murder and 15 years’ imprisonment
for aggravated battery with a firearm.
¶4 We set forth the facts in defendant’s direct appeal (People v. French, 2017 IL App (1st)
141815), and we recite them here to the extent necessary to our disposition. The State’s evidence
showed that at about 11 p.m. on August 19, 2010, the victims, Kizer and Thompson, were outside
near 7450 South Kenwood Avenue in Chicago. Kizer’s family lived on that block. Kizer and
Thompson were either sitting on the back of a friend’s parked car or standing by the car in the
street. Several other people were also outside.
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
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¶5 A vehicle passed the group multiple times. Bodey Cook was driving the vehicle. On the
third pass, defendant leaned out of the passenger-side window and fired multiple shots at the group.
Thompson suffered gunshot wounds to each of his legs, his chest, and his stomach. Kizer died at
the scene from a gunshot wound to his chest. Defendant was 20 years old at the time of the
shooting. Defendant was sentenced on May 29, 2014. Defendant, acting pro se, did not file a
motion to reconsider his sentence.
¶6 On direct appeal, defendant argued that (1) the trial court abused its discretion by admitting
hearsay and allowing the State to refer to it as substantive evidence during closing argument, which
constituted plain error because the evidence was closely balanced, (2) trial counsel rendered
ineffective assistance by failing to object to certain statements by witnesses on the basis of lack of
foundation, (3) the trial court’s preliminary inquiry into defendant’s pro se posttrial claims of
ineffective assistance of counsel was an adversarial proceeding and violated due process, and
(4) the trial court erred when it failed to appoint new counsel and hold a hearing on defendant’s
claims of ineffective trial counsel. We affirmed. Id. ¶ 89.
¶7 On December 20, 2019, defendant filed his initial postconviction petition. Defendant’s
petition alleged that, inter alia, (1) appellate counsel was ineffective for failing to establish trial
counsel’s ineffectiveness where trial counsel failed to thoroughly investigate defendant’s cellular
phone records, which provided evidence concerning the location of defendant’s phone during the
crime, (2) trial counsel was ineffective for failing to seek the testimony of an eyewitness expert
and an expert witness on cellular phone records, (3) defendant was denied a fair and impartial
direct appeal proceeding where the circuit court did not include defendant’s exhibits in the
appellate record, (4) appellate counsel failed to present the ineffective assistance of trial counsel
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claim regarding the alibi witnesses with supporting facts, and (5) trial counsel was ineffective for
failing to show that police authorities offered leniency to witnesses.
¶8 On February 5, 2020, the trial court dismissed defendant’s postconviction petition, finding
that the issues raised were frivolous and patently without merit. We affirmed the dismissal of
defendant’s initial postconviction petition in an order pursuant to Illinois Supreme Court Rule
23(b) (eff. Jan. 1, 2021) on April 28, 2022. People v. French, 2022 IL App (1st) 200805-U, ¶ 68.
¶9 On October 13, 2021, defendant filed the motion for leave to file a successive
postconviction petition at issue in this case. Defendant alleged that his 70-year sentence was a
de facto life sentence imposed on him as a 20-year-old in violation of the proportionate penalties
clause of the Illinois Constitution. As to cause, defendant stated that the sentencing claim was “not
reasonably available to him before.” Defendant referenced a report from Dr. James Garbarino
detailing defendant’s “developmental pathway from childhood to adulthood.” Defendant received
the report on June 11, 2021, which defendant alleged was the first point he could have reasonably
brought the proportionate penalties claim. For prejudice, defendant alleged that his de facto life
sentence was unconstitutional as applied to him under the proportionate penalties clause.
¶ 10 The trial court denied defendant’s motion on December 16, 2021. The trial court concluded
that defendant had waived his proportionate penalties claim by failing to raise it in either his direct
appeal or initial postconviction petition. On the merits, the trial court stated that defendant’s 55-
year sentence for first degree murder did not “shock the moral sense of the community” because
defendant was not a juvenile when he “directly participated” in the murder.
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¶ 11 Defendant’s notice of appeal was file-stamped January 19, 2022. The envelope
accompanying the notice of appeal shows a date of January 12, 2022. This court granted
defendant’s motion for leave to file a late notice of appeal on June 6, 2022.
¶ 12 II. ANALYSIS
¶ 13 Defendant’s sole argument is that he adequately alleged cause and prejudice such that the
trial court erred in denying his motion for leave to file a successive postconviction petition.
Defendant argues that he established cause “because his claim is based on recent, substantive
developments in the law as well as newly-obtained factual support for the claim which could not
have been brought in his first post-conviction petition.” Defendant argues that he made a
prima facie showing of prejudice by pleading three facts: “1) he is serving a natural or de facto life
sentence[;] 2) scientific evidence supported his claim that his brain acted like that of a juvenile’s
brain at the time of the offense; and 3) the sentencing court did not adequately consider his youthful
characteristics as required by Miller and its progeny.”
¶ 14 The State responds that defendant failed to establish cause because the caselaw defendant
relies on was available when he filed his initial petition in 2019. The State further points to the
Illinois Supreme Court’s decision in Dorsey, 2021 IL 123010, which the State argues forecloses
defendant’s cause argument. The State also notes that defendant had years to obtain a similar expert
report for inclusion in his first petition. As to prejudice, the State primarily relies on the seriousness
of the offense, the trial court’s findings about defendant’s rehabilitative prospects, the fact that all
of the mitigating evidence regarding defendant’s youth and upbringing was before the trial court,
and that a portion of Dr. Garbarino’s report is based on facts contradicted by the record.
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¶ 15 The Act provides a three-stage mechanism by which a criminal defendant may assert that
his conviction resulted from the substantial denial of a constitutional right. People v. Myles, 2020
IL App (1st) 171964, ¶ 17; People v. Delton, 227 Ill. 2d 247, 253 (2008). “[T]he Act contemplates
the filing of only one post-conviction petition.” People v. Pitsonbarger, 205 Ill. 2d 444, 456
(2002). “Only when fundamental fairness so requires will the strict application of this statutory bar
be relaxed.” Id. at 458.
¶ 16 “[T]he cause-and-prejudice test is the analytical tool that is to be used to determine whether
fundamental fairness requires that an exception be made to section 122-3 so that a claim raised in
a successive petition may be considered on its merits.” Id. at 459. The cause-and-prejudice test has
been codified in the Act. Section 122-1(f) of the Act provides: “Leave of court may be granted
only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial
post-conviction proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West
2018). Thus, section 122-1(f) is an exception to the statutory waiver rule, “permitting a successive
petition, but only if the defendant first obtains permission from the court and demonstrates to the
court cause and prejudice for not having raised the alleged errors in his or her initial postconviction
petition.” People v. Bailey, 2017 IL 121450, ¶ 15.
¶ 17 “[A] prisoner shows cause by identifying an objective factor that impeded his or her ability
to raise a specific claim during his or her initial post-conviction proceedings.” 725 ILCS 5/122-
1(f) (West 2018). “[A] prisoner shows prejudice by demonstrating that the claim not raised during
his or her initial post-conviction proceedings so infected the trial that the resulting conviction or
sentence violated due process.” Id. “[T]he cause-and-prejudice test for a successive petition
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involves a higher standard than the first-stage frivolous or patently without merit standard.” People
v. Smith, 2014 IL 115946, ¶ 35.
¶ 18 “[L]eave of court to file a successive postconviction petition should be denied when it is
clear, from a review of the successive petition and the documentation submitted by the petitioner,
that the claims alleged by the petitioner fail as a matter of law or where the successive petition
with supporting documentation is insufficient to justify further proceedings.” Id. “The denial of a
defendant’s motion for leave to file a successive postconviction petition is reviewed de novo.”
Bailey, 2017 IL 121450, ¶ 13.
¶ 19 Defendant’s claim has its roots in the eighth amendment to the United States Constitution,
which prohibits the infliction of “cruel and unusual punishments.” U.S. Const., amend. VIII. In a
line of cases the United States Supreme Court has applied the eighth amendment to juvenile
offenders who have committed serious offenses. In Roper v. Simmons, the Court held that the
eighth amendment prohibited the “imposition of the death penalty on offenders who were under
the age of 18 when their crimes were committed.” Roper v. Simmons, 543 U.S. 551, 578 (2005).
In Graham v. Florida, the Court held that the “Constitution prohibits the imposition of a life
without parole sentence on a juvenile offender who did not commit homicide.” Graham v. Florida,
560 U.S. 48, 82 (2010).
¶ 20 In Miller v. Alabama, the Court held that “the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller v.
Alabama, 567 U.S. 460, 479 (2012). The Court then determined that the Miller holding applied
retroactively to cases on collateral review. Montgomery v. Louisiana, 577 U.S. 190, 212 (2016).
Most recently, the Court clarified that Miller only required a “discretionary sentencing procedure”
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and not any formal factual finding. Jones v. Mississippi, 593 U.S. ___, ___, 141 S. Ct. 1307, 1317
(2021).
¶ 21 The Illinois Supreme Court has also weighed in on the import of these decisions. Our
supreme court in People v. Reyes held that Miller applied to de facto life sentences. People v.
Reyes, 2016 IL 119271, ¶¶ 9-10 (per curiam). In People v. Buffer, our supreme court defined
a de facto life sentence for a juvenile as a sentence of more than 40 years’ imprisonment. People
v. Buffer, 2019 IL 122327, ¶ 41. Our supreme court has also held that Miller applies to
discretionary as well as mandatory sentences (People v. Holman, 2017 IL 120655, ¶¶ 40, 43-44),
although the court has subsequently called that holding into question (see Dorsey, 2021 IL 123010,
¶ 41). With the eighth amendment backdrop established, we turn to defendant’s proportionate
penalties claim.
¶ 22 The proportionate penalties clause provides: “All penalties shall be determined both
according to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. I, § 11. A penalty violates the proportionate penalties clause
when it is “cruel, degrading, or so wholly disproportionate to the offense as to shock the moral
sense of the community.” People v. Miller, 202 Ill. 2d 328, 338 (2002). The Illinois Supreme Court
has twice indicated that young adult offenders may establish an unconstitutional life sentence
through a postconviction petition. In People v. Thompson, our supreme court rejected the 19-year-
old defendant’s as-applied constitutional challenge because it was raised for the first time on
appeal. People v. Thompson, 2015 IL 118151, ¶ 44. However, the court noted that the defendant
was not prohibited from raising the issue through the Post-Conviction Hearing Act. Id.
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¶ 23 In People v. Harris, our supreme court reversed the appellate court’s decision because the
“appellate court held [the] defendant’s sentence violated the Illinois Constitution without a
developed evidentiary record on the as-applied constitutional challenge.” People v. Harris, 2018
IL 121932, ¶ 40. The court concluded that, because Miller did not apply directly to the 18-year-
old defendant’s circumstances, the record must be sufficiently developed to support the
defendant’s as-applied challenge. Id. ¶ 45.
¶ 24 We have described the import of Thompson and Harris as permitting “young adult
offenders” to bring a postconviction claim “alleging that their sentences in excess of 40 years
imposed without consideration of the Miller factors are unconstitutional as applied to them under
the proportionate penalties clause.” People v. Horshaw, 2021 IL App (1st) 182047, ¶ 69. Critical
to success on a young adult proportionate penalties claim is a factual showing that “the science
concerning juvenile maturity and brain development applies equally” to a young adult’s case. See
People v. House, 2021 IL 125124, ¶ 29. With the overarching law between the Illinois
proportionate penalties clause and the eighth amendment to the United States Constitution laid out,
we can analyze whether defendant has satisfied the cause and prejudice test under section 122-
1(f).
¶ 25 As discussed above, a defendant establishes cause by “ ‘identifying an objective factor that
impeded his or her ability to raise a specific claim during his or her initial post-conviction
proceedings.’ ” Bailey, 2017 IL 121450, ¶ 14. Defendant relies on the evolving caselaw and
scientific research regarding young adult offenders, which in turn led defendant to seek the report
from Dr. Garbarino to substantiate his claim. However, in Dorsey, 2021 IL 123010, ¶ 74, our
supreme court held that “Miller’s announcement of a new substantive rule under the eighth
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amendment does not provide cause for a defendant to raise a claim under the proportionate
penalties clause.” The court continued that “Miller’s unavailability prior to 2012 at best deprived
defendant of ‘some helpful support’ for his state constitutional law claim, which is insufficient to
establish ‘cause.’ ” Id. (quoting People v. LaPointe, 2018 IL App (2d) 160903, ¶ 59). Based on
Dorsey’s clear holding, defendant cannot establish cause for his failure to raise his proportionate
penalties claim in his initial postconviction petition.
¶ 26 To be sure, this court has on occasion concluded that a defendant has established cause
based on the evolution of the case law in the juvenile sentencing arena. However, as we recognized
in People v. Walsh, it appears that, when the court has done so, it has largely been based on the
State’s concession of the issue. People v. Walsh, 2022 IL App (1st) 210786, ¶ 32; see Horshaw,
2021 IL App (1st) 182047, ¶ 122 (noting that the State did not dispute that the defendant had
established cause “based on the retroactive application of Miller to cases on collateral review”);
People v. Meneses, 2022 IL App (1st) 191247-B, ¶ 17 (“The State concedes that defendant has
established the first prong.”); People v. Green, 2022 IL App (1st) 200749, ¶ 27 (noting that the
State conceded that cause had been established “because the evolving case law involving the
sentencing of youthful offenders was not available” when the defendant filed his prior petitions).
¶ 27 We further explained in Walsh that when cause has been fully litigated, as it was here, this
court has universally applied the holding in Dorsey to conclude that cause has not been established
based on the prior unavailability of Miller and its progeny. Walsh, 2022 IL App (1st) 210786, ¶ 33;
see People v. Figueroa, 2022 IL App (1st) 172390-B, ¶¶ 36, 39. In Figueroa, this court began by
noting that the State had “maintained from the outset” that the defendant had failed to satisfy the
cause prong for filing a successive petition because he had not brought the claim in an earlier
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petition. Id. ¶ 36. This court then concluded that Dorsey was “entirely dispositive,” based on the
above-quoted language, and that the defendant had not established cause for his failure to raise his
proportionate penalties claim in an earlier proceeding. Id. ¶ 39; see also People v. Ruddock, 2022
IL App (1st) 173023, ¶ 72 (“The supreme court’s reasoning in Dorsey also establishes that the
defendant in this case cannot satisfy the cause prong of the cause-and-prejudice test for bringing a
successive postconviction petition with respect to his proportionate penalties claim under the
Illinois Constitution.”); People v. Hemphill, 2022 IL App (1st) 201112, ¶ 31 (“It follows that,
based on the supreme court’s reasoning in Dorsey, defendant in this case cannot satisfy the cause
prong of the cause-and-prejudice test for bringing a successive postconviction petition with respect
to his proportionate penalties claim under the Illinois Constitution.”).
¶ 28 In the months following our decision in Walsh, this trend has held true. See People v.
Wimberly, 2022 IL App (1st) 211464, ¶ 9 (“In light of the court’s pronouncement in Dorsey, the
defendant’s reliance on Miller and related developments in juvenile-sentencing case law as the
reason for his failure to bring his proportionate-penalties-clause claim in his initial petition is
insufficient to establish cause.”); People v. Jones, 2022 IL App (1st) 200569-U, ¶ 43
(“Following Dorsey, in nearly every appellate court district, we have consistently rejected
successive postconviction petitions for lack of cause where the young adult defendant’s claim is
based on the proportionate penalties clause.”). Unless our supreme court reconsiders its decision
in Dorsey, we are bound by the court’s determination that Miller and its progeny do not provide a
petitioner with cause for failing to raise a proportionate penalties claim in an initial postconviction
petition. See People v. Artis, 232 Ill. 2d 156, 164 (2009).
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¶ 29 Defendant attempts to distinguish Dorsey on a couple of levels. Defendant argues that,
because the defendant in Dorsey was a minor, the holding should not apply to the class of young
adult offenders. Defendant continues that Dorsey’s holding on lack of cause was “well-founded
with respect to juveniles” but that it was not until 2015 in Thompson that our supreme court
suggested the possibility of an “emerging adult” Miller claim. We disagree for a few reasons. First,
Dorsey’s holding was not so narrow. The court held that “Miller’s announcement of a new
substantive rule under the eighth amendment does not provide cause for a defendant to raise a
claim under the proportionate penalties clause.” (Emphasis added.) Dorsey, 2021 IL 123010, ¶ 74.
As we recently explained, “[i]f Miller’s announcement of a new substantive rule does not provide
a minor cause to bring a successive petition, it follows that our supreme court’s recent acceptance
that Miller may apply to young adults in certain circumstances does not provide cause for a young
adult’s successive petition either.” People v. Walker, 2022 IL App (1st) 201151, ¶ 29.
¶ 30 Second, the primary case cited by our supreme court, LaPointe, 2018 IL App (2d) 160903,
¶ 59, held that the 18-year-old defendant had not established cause because Miller’s nonexistence
did not prevent the defendant from earlier raising a proportionate penalties clause claim. The
Dorsey court at least implicitly recognized that its decision applied equally to minors and young
adults. And courts in Illinois have historically recognized that there is a “significant developmental
difference not only between minors and adults but also between young adults and older adults.”
People v. Haines, 2021 IL App (4th) 190612, ¶ 51. Our supreme court over 100 years ago in
discussing minors, defined as those between 16 and 21 years of age, stated: “There is in the law of
nature, as well as in the law that governs society, a marked distinction between persons of mature
age and those who are minors”; “[t]he habits and characters of the latter are, presumably, to a large
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extent as yet unformed and unsettled.” People ex rel. Bradley v. Illinois State Reformatory, 148
Ill. 413, 423 (1894). This court has on multiple occasions reduced a 20-year-old defendant’s
sentence after a conviction of first degree murder. See People v. Mitchell, 12 Ill. App. 3d 960, 968
(1973); People v. Maldonado, 240 Ill. App. 3d 470, 484-85 (1992).
¶ 31 Thus, while the more recent caselaw certainly adds to defendant’s argument, his
proportionate penalties claim was “buildable” prior to Miller. Haines, 2021 IL App (4th) 190612,
¶ 56. As our supreme court has held, “the lack of precedent for a position differs from ‘cause’ for
failing to raise an issue, and a defendant must raise the issue, even when the law is against him, in
order to preserve it for review.” People v. Guerrero, 2012 IL 112020, ¶ 20. We cannot, as
defendant requests, distinguish Dorsey for the reasons he urges.
¶ 32 Defendant also comments that the Dorsey court’s cause analysis constituted obiter dicta.
We disagree. Our supreme court found the lack of cause to be a sufficient basis, aside from
forfeiture, to uphold the trial court’s denial of the defendant’s motion for leave to file a successive
postconviction petition. See Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (explaining
that “where a decision rests on two or more grounds, none can be relegated to the category of
obiter dictum”). Whether cause had been established to warrant allowing the defendant in Dorsey
to file a successive postconviction petition was a point “ ‘argued by counsel and deliberately
passed upon by the court.’ ” (Emphasis in original.) Exelon Corp. v. Department of Revenue, 234
Ill. 2d 266, 277 (2009). That makes the court’s cause analysis, at minimum, judicial dicta, which
has “the force of a determination by a reviewing court and should receive dispositive weight in an
inferior court.” People v. Williams, 204 Ill. 2d 191, 206 (2003). And even if obiter dicta, we are
bound to follow the court’s cause holding. Id. at 207 (explaining that regardless of whether the
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dicta was judicial or obiter, it “should have guided the appellate court”). Thus, classifying the
court’s analysis as dicta does not alter the binding effect it has on this court.
¶ 33 Defendant’s final argument on the cause front is that he was not impeded solely by the lack
of supporting caselaw but also by the lack of evidentiary support. In other words, defendant argues
that, although much of the caselaw he relies on existed when he filed his initial petition in 2019,
he did not obtain Dr. Garbarino’s report until June 2021. Defendant’s argument fails. Based on our
supreme court’s decision in Dorsey, defendant’s proportionate penalties claim was buildable even
prior to the Miller decision in 2012. Thompson, which came out the year after defendant was
sentenced and over four years before defendant filed his initial petition, expressly opened the door
to defendant’s current claim. Defendant had ample time to summon the evidentiary support to raise
his proportionate penalties claim. This is not a situation, like the cases cited by defendant, where
cause was established because newly discovered evidence surfaced that the defendants had no
control over. See People v. Weathers, 2015 IL App (1st) 133264, ¶ 36 (concluding that the
defendant established cause where an Illinois Torture Inquiry and Relief Commission report was
issued after defendant’s initial postconviction petition was resolved); People v. Wrice, 2012 IL
111860, ¶¶ 41, 49 (accepting the State’s concession that cause had been established where the
defendant relied on a government report that was released after he filed his initial postconviction
petition). Similar to the analysis above, if the caselaw underpinning defendant’s claim does not
provide cause, then defendant’s delayed investigation of the claim based on the lack of the caselaw
cannot provide cause either.
¶ 34 Dorsey’s holding that “Miller’s announcement of a new substantive rule under the eighth
amendment does not provide cause for a defendant to raise a claim under the proportionate
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penalties clause” is dispositive in this case. Defendant has not established cause because the Illinois
proportionate penalties clause existed long before he filed his initial postconviction petition and,
thus, he could have raised the claim at that time. His failure to do so prohibits his current claim
from proceeding. The trial court properly denied defendant’s motion for leave to file his successive
petition.
¶ 35 III. CONCLUSION
¶ 36 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 37 Affirmed.
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People v. French, 2022 IL App (1st) 220122
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR- 3147; the Hon. Mary Margaret Brosnahan, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Jessica D. Ware, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Brian K. Hodes, and David H. Iskowich, Assistant Appellee: State’s Attorneys, of counsel), for the People.
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