People v. Garcia

2021 IL App (1st) 192485-U

Opinion

2021 IL App (1st) 192485-U

FIFTH DIVISION Order filed: September3, 2021

No. 1-19-2485

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 95 CR 22442 ) ) JOSE GARCIA, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, Presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Justices Cunningham and Rochford concurred in the judgment.

ORDER

¶1 Held: We affirmed the trial court’s denial of the defendant’s pro se motion for leave to file a successive postconviction petition that asserted a claim under the eighth amendment to the United States Constitution. We held that the defendant’s argument on appeal that his sentence violates the proportionate penalties clause of the Illinois Constitution is forfeited as the argument was not raised in his motion to file a successive postconviction petition or in the petition itself. We also held that, forfeiture aside, the defendant’s claim failed on the merits for the following reasons: his 60-year prison sentence was not a de facto life sentence because he is eligible to receive day-for-day, good-conduct credit and his proposed successive No. 1-19-2485

postconviction petition failed to set forth any individual characteristics, other than his age, that would entitle him to the sentencing protections afforded to juveniles under the eighth amendment.

¶2 The defendant, Jose Garcia, appeals from an order of the circuit court, denying him leave

to file a successive postconviction petition challenging his 60-year sentence for first-degree murder

and concurrent prison term of 15 years for aggravated discharge of a firearm as a violation of the

eighth amendment to the United States Constitution (U.S. Const., amend. VIII). For the reasons

which follow, we affirm.

¶3 On July 13, 1995, Alejandro Ocampo was shot and killed. The defendant, who was 18

years old at the time of the shooting, was charged with, inter alia, Alejandro’s murder and

aggravated discharge of a firearm against Orlando Ocampo, Alejandro’s brother. Following a jury

trial, the defendant was found guilty of first-degree murder and aggravated discharge of a firearm.

He was sentenced 60-years’ imprisonment for first degree murder and a concurrent prison term of

15 years for aggravated discharge of a firearm. On direct appeal, this court affirmed the defendant’s

conviction and sentences. People v. Jose Garcia, No. 1-96-4241 (1998) (unpublished order under

Supreme Court Rule 23).

¶4 On November 30, 1998, the defendant filed a petition for relief under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1996)). The circuit court summarily dismissed

that petition, and the defendant appealed. This court affirmed the summary dismissal. People v.

Jose Garcia, No. 1-99-0161 (2001) (unpublished order under Supreme Court Rule 23).

¶5 On July 17, 2003, the defendant, pro se, filed his first successive petition for postconviction

relief under the Act. Counsel was appointed for the defendant, and a supplemental petition was

filed. Following a third-stage evidentiary hearing under the Act, the circuit court denied the

petition, and the defendant appealed. Subsequently, the defendant’s appointed appellate counsel

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filed a motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987).

Finding no arguable issues of merit, this court granted counsel’s motion to withdraw and affirmed

the circuit court’s denial of the defendant’s petition. People v. Jose Garcia, No. 1-06-2063 (2007)

(unpublished order under Supreme Court Rule 23).

¶6 In November 2013, the defendant filed a petition for mandamus pursuant to section 14-101

of the Code of Civil Procedure (Code) (735 ILCS 5/14-101 et seq. (West 2012)). The defendant

also filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Code (735

ILCS 5/2-1401 (West 2012)). The circuit court denied both petitions, and its orders were affirmed

on appeal. People v. Jose Garcia, No. 1-14-0885 (2015) (unpublished order under Supreme Court

Rule 23).

¶7 On July 10, 2014, the defendant filed a pro se motion for leave to file a second successive

petition for postconviction relief under the Act. The circuit court denied the motion, and the

defendant appealed. This court affirmed the circuit court’s order. People v. Jose Garcia, 2017 IL

App (1st) 143380-U.

¶8 On September 12, 2019, the defendant filed a third pro se motion for leave to file a

successive petition for postconviction relief under the Act, attaching to the motion the successive

pro se petition for which leave to file was sought. The only claim set forth by the defendant in that

petition is that his 60-year sentence is a de facto life sentence in violation of the eighth amendment

to the United States Constitution. On September 24, 2019, the circuit court denied the defendant

leave to file the successive petition, and this appeal followed.

¶9 In urging reversal of the circuit court’s order denying his motion to file his successive

postconviction petition, the defendant argued in his opening brief that he “established sufficient

cause and prejudice to file a successive petition alleging that his 60-year de facto life sentence for

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offenses he committed when he was 18 years old is unconstitutional as applied to him under the

proportionate penalties clause of the Illinois Constitution [(Ill. Const. 1970, art. I, § 11)].” In

support of the circuit court’s order, the State argues that the issue raised by the defendant on appeal

has been forfeited as it was never raised in the successive petition for postconviction relief attached

to his motion for leave to file. It also argues that the defendant’s 60-year sentence is not a de facto

life sentence, and consequently, the defendant is unable to establish the prejudice required for the

filing of a successive postconviction petition. We agree with the State.

¶ 10 Addressing the issue of forfeiture first, we note, as the State has asserted, that the successive

postconviction petition attached to the defendant’s motion for leave to file raised a single claim:

his 60-year sentence violated the eighth amendment to the United States Constitution. The

defendant made no claim in that petition that his sentence violated the proportionate penalties

clause of the Illinois Constitution. The proportionate penalties clause claim was raised for the first

time in his brief on appeal.

¶ 11 In People v. Coleman, 183 Ill. 2d 366, 388 (1998), the supreme court held that “[t]he

question raised in an appeal from an order dismissing a post-conviction petition is whether the

allegations in the petition, liberally construed and taken as true, are sufficient to invoke relief under

the Act.” In People v. Jones, 211 Ill. 2d 140, 148 (1998), the supreme court, citing Coleman as

authority, held that any issue to be reviewed on appeal must be presented in the petition filed in

the circuit court and that a defendant may not raise an issue for the first time on appeal. The

supreme court reaffirmed its position on the issue in its decision in People v. Dorsey, 2021 IL

123010, ¶¶ 70-72. Failure to raise a proportionate penalties clause claim in a motion to file a

successive postconviction petition or in the petition itself results in a forfeiture of the claim for

purposes of appeal. Id. ¶ 70.

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¶ 12 The defendant argues that the proportionate penalties claim he raised on appeal has not

been forfeited. He contends that the claim is based upon the same information and arguments that

are contained in his successive postconviction petition that asserted a claim based upon a violation

of the eight amendment to the United States Constitution. According to the defendant, “[a] claim

under the Proportionate Penalties clause [of the Illinois Constitution] has the identical analysis as

a claim under the Eighth Amendment [to the United States Constitution] and the Eighth

Amendment analysis applies *** [to him] under the Illinois Constitution.” The defendant

concludes, therefore, that this court should review the sufficiency of the proportionate penalties

claim set forth in his brief. Assuming for the sake of analysis only that the claim set forth by the

defendant on appeal grounded in an alleged violation of the proportionate penalties clause is

sufficiently developed in the successive postconviction petition he sought leave to file so as to

allow review of the claim in the context of this appeal, forfeiture aside, we would still affirm the

trial court’s order denying the defendant’s motion for leave to file the successive postconviction

petition.

¶ 13 Under the Act, a defendant may raise a claim of a constitutional violation in his trial or in

sentencing. People v. Edwards, 2012 IL 111711, ¶ 21. The Act contemplates the filing of one

postconviction petition. Id. ¶ 22. Claims not raised in an initial petition are waived (Id. ¶ 21) unless

the defendant can show cause for and prejudice from failing to raise the claim in the earlier petition

or makes a colorable claim of actual innocence (People v. Robinson, 2020 IL 123849, ¶ 42). Absent

a claim of actual innocence, the defendant must establish both cause and prejudice in order to

prevail on a motion for leave to file a successive postconviction petition. People v. Pitsonbarger,

205 Ill. 2d 444, 464 (2002). Our review of the trial court’s denial of leave to file a successive

postconviction petition is de novo. Robinson, 2020 IL 123849, ¶ 39.

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¶ 14 The Act defines “cause” as “an objective factor that impeded [the defendant’s] ability to

raise a specific claim during his or her initial postconviction proceedings.” 725 ILCS 5/122-1(f)

(West 2016). To establish “prejudice,” a defendant must demonstrate that the claim not raised in

an initial postconviction proceeding “so infected the trial that the resulting conviction or sentence

violated due process.” Id.

¶ 15 In his opening brief, the defendant asserted that his 60-year sentence was a de facto life

sentence. In People v. Buffer, 2019 IL 122327, ¶ 41, the supreme court held that a sentence of

more than 40 years is a de facto life sentence. In his reply brief, however, the defendant conceded

that his 60-year sentence, which is subject to a day-for-day good time credit (see 730 ILCS 5/3-6-

3(a)(2) West 1996)), is not a de facto life sentence as it is possible that he will be released after

serving 30 years. See Dorsey, 2021 IL 123010, ¶ ¶ 49-65 (finding that a “statutory good-conduct

scheme” that affords the defendant an opportunity for release prior to serving 40 years in prison is

not a de facto life sentence). It follows, therefore, that the defendant could not satisfy the prejudice

prong of the cause-and-prejudice test for bringing a successive postconviction petition with respect

to his eighth amendment claim. Dorsey, 2021 IL 123010, ¶ 65.

¶ 16 In People v. Harris, 2018 IL 121932, ¶¶ 54-61, the supreme court set 18 as the cutoff for

juvenile sentencing protections in the eighth amendment context. The defendant in this case was

convicted and sentenced for a murder that he committed when he was 18. Consequently, the

decision in Harris foreclosed the defendant’s eighth amendment argument that his age and

sentence qualify him for the protections afforded to juveniles pursuant to the holding in Miller v.

Alabama, 567 U.S. 460 (2012). However, the Harris court left open the question of whether a

defendant convicted and sentenced to a de facto life sentence for a crime that was committed when

he was 18 years old could raise an as-applied challenge to his sentence under the proportionate

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penalties clause of the Illinois Constitution. Harris, 2018 IL 121932, ¶ 48. The supreme court held

that such a claim is more appropriately brought in a proceeding under the Act or by means of a

petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/201401 (West

2018)). Id.

¶ 17 The defendant argues that the sentencing protection afforded a defendant under the

proportionate penalties clause of the Illinois Constitution is more expansive that the protection

afforded under the eighth amendment to the United States Constitution. He contends that he

satisfied both the cause and prejudice requirements in order to prevail on a motion for leave to file

a successive postconviction petition grounded in a violation of the proportionate penalties clause.

We disagree for the same reason that he failed to satisfy the prejudice prong of the cause-and-

prejudice test for bringing a successive postconviction petition grounded in a claim pursuant to the

eighth amendment: his 60-year sentence is not a de facto life sentence.

¶ 18 There is another reason for our affirmance of the trial court’s order denying the defendant’s

motion for leave to file the successive postconviction petition attached to that motion. “Young

adult defendants are not entitled to a presumption that Miller applies to them.” People v. Ruiz,

2020 IL App (1st) 163145, ¶ 52. “[U]nder Harris, a young adult defendant must plead and

ultimately prove, that his or her individual characteristics require the application of Miller.” Id.

The petition and accompanying documents must contain sufficient facts to justify further

proceedings. “[T]he defendant must show ‘how the evolving science on maturity and brain

development that helped form the basis for the Miller decision applies to defendant’s specific facts

and circumstances.’ ” Id. ¶ 52 (quoting Harris, 2018 IL 121932, ¶ 46).

¶ 19 In the successive postconviction petition attached to his motion for leave to file, the

defendant asserted that he was a juvenile when he committed the offenses for which he received a

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60-year sentence. However, the record reflects that the defendant’s age at the time that he

committed the offenses was an issue at trial. The State introduced a certified copy of the

defendant’s birth certificate showing the defendant’s date of birth as April 30, 1977, and based

thereon, the circuit court found that the defendant was 18 on July 13, 1995, the date on which he

shot and killed Alejandro. In his brief before this court, the defendant asserts that he was 18 at the

time he committed the offenses for which he received a 60-year sentence.

¶ 20 Other than alleging his age when he committed the murder for which he was convicted and

sentenced to 60-years’ imprisonment, the successive postconviction petition that the defendant

sought leave to file fails to set forth any individual characteristics that, even arguably, would

require a sentencing court to apply to him the sentencing protections set forth in Miller. Having

failed to allege facts showing that the holding in Miller should apply to his particular

circumstances, the successive postconviction petition that the defendant sought leave to file is

insufficient to support an as-applied challenge to his sentence under the proportionate penalties

clause of the Illinois Constitution.

¶ 21 Based on the foregoing analysis, we agree with the State; the defendant has forfeited the

argument that his 60-year sentence violated the proportionate penalties clause of the Illinois

Constitution. Forfeiture aside, we find 1) that the defendant cannot satisfy the prejudice prong of

the cause-and-prejudice test for bringing a successive postconviction petition alleging either a

violation of the eighth amendment of the United States Constitution or a violation of the

proportionate penalties clause of the Illinois Constitution, and 2) that the successive postconviction

petition attached to the defendant’s motion for leave to file failed to allege facts sufficient to

support an as-applied challenge to the defendant’s sentence under either the eighth amendment or

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the proportionate penalties clause. Consequently, we affirm the trial court’s order denying the

defendant’s motion for leave to file a successive postconviction petition.

¶ 22 Affirmed.

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