2022 IL App (1st) 211416-U
SECOND DIVISION November 9, 2022
No. 1-21-1416
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 03 CR 00135 ) GILBERTO GONZALEZ, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
Held: We affirm the judgment of the circuit court of Cook County denying defendant leave to file a successive postconviction petition; defendant failed to establish cause for his failure to bring his claim under the proportionate penalties clause in his initial postconviction petition.
¶1 In October 2002 a jury found defendant, Gilberto Gonzalez, guilty of first degree murder.
The circuit court of Cook County sentenced defendant to 48 years’ imprisonment. This court
affirmed defendant’s conviction and sentence on direct appeal. People v. Gilberto Gonzalez, 388
Ill. App. 3d 566 (2008). In August 2021 defendant filed a motion for leave to file a successive
petition for postconviction relief challenging the sentence under the proportionate penalties
clause of the Illinois constitution. In September 2021 the trial court denied defendant leave to file
the successive petition for postconviction relief. Defendant timely appealed. 1-21-1416
¶2 For the following reasons, we affirm the trial court’s order denying defendant leave to
file the successive postconviction petition.
¶3 BACKGROUND
¶4 A complete recitation of the facts and relevant evidence leading to defendant’s conviction
and sentence can be found in this court’s order affirming the trial court’s judgment on direct
appeal. Gonzalez, 388 Ill. App. 3d 566. We will state here only those facts and that evidence
necessary to an understanding of the issues and the disposition of this appeal.
¶5 In 2002, at the age of 22 years, defendant, Gilberto Gomez, was convicted of the first
degree murder of Jesse Sandoval for what is typically described as a “drive by shooting.”
Defendant does not challenge the fact of his conviction, so those facts are not relevant, except to
any extent they may illuminate defendant’s arguments in this appeal. Any such facts will be
discussed as necessary to that purpose.
¶6 Relevant here, defendant’s pretrial services investigation report (PSI) states that
defendant had a history of alcohol and drug abuse that started at the age of 15. He joined a street
gang at 16 but did not achieve “rank.” Defendant stated that when previously incarcerated he
became a member of a Christian church and continued to be a member of a church when
released. In 1999, while serving a sentence of imprisonment on an unrelated offense, defendant
obtained his General Education Development (GED) degree. In 2001, defendant was in an
automobile accident. The accident caused defendant to suffer a brain injury necessitating surgery
to remove a piece of his skull due to swelling in his head and to relieve a hemorrhage in his
brain. Defendant claimed the scars from the surgery caused him anxiety, depression, and
paranoia. Defendant was prescribed Trazadone and Prozac for stress and anxiety. Defendant also
claimed that he continues to suffer from short-term memory loss and severe headaches as a result
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of the brain injury. Defendant attempted suicide sometime thereafter but before committing the
offense underlying this appeal.
¶7 Defendant’s attorney failed to mention defendant’s brain injury and medication at
defendant’s sentencing hearing. When defendant addressed the trial court, he denied committing
the offense.
¶8 The trial court sentenced defendant to 48 years in prison. Defendant filed a direct appeal
in which he challenged his conviction on several grounds but in which he did not challenge his
sentence. Gonzalez, 388 Ill. App. 3d at 568. This court affirmed the conviction. Id. at 598. On
October 13, 2010, defendant filed an initial postconviction petition raising claims he received
ineffective assistance of counsel in several respects. Again, defendant did not challenge his
sentence. The trial court summarily dismissed the initial petition. Defendant filed several interim
petitions without success.
¶9 On August 26, 2021, defendant placed the motion for leave to file the successive petition
for postconviction relief that is the subject of this appeal (current petition) in the institutional
mail at Menard Correctional Center. On August 31, 2021, the clerk of the circuit court of Cook
County filed defendant’s motion. Defendant’s current petition raised a single claim: “an as-
applied issue, that his de facto life sentence of 48-years in prison, imposed by the trial court
without any consideration of his youth or rehabilitative potential for an offense committed when
he was 22-years old, is both unconstitutional under the proportionate penalties clause of the
Illinois constitution, and excessive.” The current petition includes statements from several
witnesses who say defendant changed negatively after the accident and was no longer the person
they previously knew. Defendant’s sister, an educational professional but a medical layperson,
opined that the brain injury hindered defendant’s brain development. The petition claims
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defendant has shown signs of rehabilitation in the almost 20 years he has been imprisoned
including participation in multiple self-improvement and educational programs.
¶ 10 Defendant also attached to the current petition a document titled “Report to 2017 Illinois
PTA Convention on Young Adults Involved in the Justice System” (2017 report). The executive
summary of the 2017 report concludes that brain functions that relate to self-control and
reasoning continue to mature into the twenties and that the findings suggest that addressing the
issues of this age group might be handled in different ways, as one group, or in subdivisions
including 18 to 21 and 22 to 25-year olds.
¶ 11 On September 9, 2021, the circuit court of Cook County denied defendant’s motion for
leave to file the current petition. The same day, defendant placed a notice appeal in the
institutional mail at Menard Correctional Center. On October 13, 2021, the clerk of the circuit
court of Cook County filed defendant’s notice of appeal from the September 9, 2021 judgment.
¶ 12 This appeal follows.
¶ 13 ANALYSIS
¶ 14 This court will review the trial court’s denial of a motion for leave to file a successive
petition for postconviction relief under the de novo standard of review. People v. Horshaw, 2021
IL App (1st) 182047, ¶ 37 (citing People v. Bailey, 2017 IL 121450, ¶ 13). Under a de novo
standard of review this court performs the same analysis that a trial judge would perform. Id.
(citing People v. McDonald, 2016 IL 118882, ¶ 32). When performing this analysis, we are not
required to defer to the trial court’s judgment or reasoning. McDonald, 2016 IL 118882, ¶ 32.
Rather, our judgement is completely independent of the trial court’s decision. Id. The question,
therefore, is whether the trial court’s decision was correct as a matter of law. Horshaw, 2021 IL
App (1st) 182047, ¶ 37 (citing McDonald, 2016 IL 118882, ¶ 32).
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¶ 15 The Post-Conviction Hearing Act (Act) contemplates the filing of only one petition for
postconviction relief. People v. Wimberly, 2022 IL App (1st) 211464, ¶ 5; 725 ILCS 5/122-1(f)
(West 2020). The Act provides that a defendant must obtain leave of court to file a successive
postconviction petition, and to obtain leave the defendant must demonstrate cause for their
failure to bring the claim in their initial petition and that prejudice results from that failure.
People v. Brandon, 2021 IL App (1st) 172411, ¶ 41 (citing 725 ILCS 5/122-1(f) (West 2016)).
Leave to file a successive petition for postconviction relief requires the defendant to “make a
prima facie showing of both ‘cause’ and ‘prejudice’ by submitting sufficient pleadings and
documentation to permit the circuit court to make an independent determination on the legal
question raised.” Horshaw, 2021 IL App (1st) 182047, ¶ 35 (citing Bailey, 2017 IL 121450, ¶
24).
¶ 16 Courts have defined “cause” as an objective factor that impeded the defendant’s ability to
raise the claim in the initial postconviction petition, and “prejudice” requires a demonstration
that the alleged error so infected the entire trial that the resulting conviction or sentence violates
due process. Id. ¶ 36 (citing People v. Davis, 2014 IL 115595, ¶ 14). When the requirements for
leave to file a successive petition are met the petition will be docketed for second stage
postconviction proceedings. Horshaw, 2021 IL App (1st) 182047, ¶ 37 (citing People v. Sanders,
2016 IL 118123, ¶ 25). On the contrary, leave to file a successive petition should be denied
where “ ‘it is clear, from a review of the successive petition and the documentation submitted by
the [defendant,] that the claims alleged *** fail as a matter of law or where the successive
petition with supporting documentation is insufficient to justify further proceedings.’ [Citation.]”
Id.; People v. Blalock, 2022 IL 126682, ¶ 48 (quoting People v. Smith, 2014 IL 115946, ¶ 35).
See also Wimberly, 2022 IL App (1st) 211464, ¶ 5. In Wimberly, this court observed that:
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“at this early leave-to-file stage, the petitioner is not required to make the
‘substantial showing’ that will later be required at a second-stage hearing after
counsel is appointed. [Citations.] Instead, leave of court to file a successive
postconviction petition should be denied only where it is clear from a review of
the petition and attached documentation that, as a matter of law, the petitioner
cannot set forth a colorable claim. [Citations.]” (Internal quotation marks
omitted.) Id.
In making these inquiries, “we take as true all well-pled allegations in the petition that are not
positively rebutted by the trial record and reject those allegations that are positively rejected by
the trial record.” Horshaw, 2021 IL App (1st) 182047, ¶ 137 (citing People v. Robinson, 2020 IL
123849, ¶ 45).
¶ 17 The proportionate penalties clause of the Illinois constitution affords “greater protections
against excessive punishment than does the eighth amendment.” Hilliard, 2021 IL App (1st)
200112, ¶ 24. This court has recognized that “young adults *** may rely on the evolving
neuroscience regarding brain development in juveniles and its correlation to maturity
underpinning the Miller decision in support of an as-applied challenge pursuant to the
proportionate penalties clause” Id. ¶ 25. To obtain the benefits of the Miller line of cases as an
emerging adult a defendant must demonstrate that he is sufficiently similar to juveniles such that
Miller protections should apply. Id. (“In Thompson and Harris, the court opened the door for
young adult defendants to demonstrate that their own specific characteristics and circumstances
were so like those of a juvenile that imposition of a life sentence, absent the necessary
considerations established in Miller, would violate the proportionate penalties clause.”).
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¶ 18 In this case defendant argues his motion made a prima facie showing of cause and
prejudice sufficient to require the trial court to grant the motion to file the petition and proceed to
the second stage of postconviction proceedings at which defendant may develop a factual record
in support of his claim. Defendant cites People v. House, 2021 IL 125124 for the proposition that
even a “bare-boned” pro se post-conviction petition that alleges an emerging adult claim is
sufficient to begin second-stage proceedings. Defendant argues the petition in this case “strongly
suggests that his mandatory de facto life sentence was unconstitutional” under the proportionate
penalties clause of the Illinois constitution in the light of Miller v. Alabama, 567 U.S. 460
(2012) and People v. House, 2015 IL App (1st) 110580. Defendant argues that because the
petition in this case cannot be said to fail as a matter of law the trial court should have granted
leave to file. See People v. Smith, 2014 IL 115946, ¶ 35.
¶ 19 In support of his argument that defendant made at least a prima facie showing of “cause,”
defendant points out that defendant’s “sentencing hearing occurred in 2005, when the parties did
not have the benefit of the supreme court’s watershed rulings about juvenile and emerging adult
brain development.” Defendant also argues his trial attorney failed to mention his brain injury
despite its alleged “additional effects on his brain development.” Thus, defendant argues, under
the circumstances “it cannot be said that [defendant’s] sentencing hearing complied with Miller.”
¶ 20 Defendant’s argument is, ultimately, that he was deserving of special sentencing
considerations such that “his mandatory de facto life sentence runs afoul of the substantive
guarantees of Miller.” He concludes: “[defendant’s] post-conviction petition and the numerous
documents appended to his petition strongly suggest that he, like his juvenile counterparts, was
deserving of special sentencing considerations and [] his mandatory de facto life sentence runs
afoul of the substantive guarantees of Miller.” Defendant devotes a substantial portion of his
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argument on appeal to many alleged reasons why today he may be deserving of a lesser sentence.
We cannot disagree there is evidence of defendant’s rehabilitation—which is in fact the goal of
his incarceration. We cannot, however, give much weight to defendant’s complaint that his
attorney at the sentencing hearing failed to mention his brain injury. As defendant concedes, the
trial judge was aware of defendant’s injury through his PSI. Of course, defendant’s attorney
could not argue that this injury may have impeded defendant’s brain development and that a
developing brain, like those found in youth, must be considered in sentencing emerging adults
who share that characteristic. That argument was not available because “the supreme court’s
watershed rulings about juvenile and emerging adult brain development,” beginning with Miller,
had not yet been decided. The question that is not sufficiently answered by defendant, and which
we must answer in the negative, is whether this unavailability of the Miller line of cases
constitutes “cause” under the Act.1 Because we resolve this case on the issue of “cause” for
purposes of a successive petition, we find that our supreme court’s decision in People v. House,
2021 IL 125124, on which defendant heavily relies, is not particularly helpful.
¶ 21 The State responded to defendant’s arguments on appeal by arguing that “the fact that
defendant’s sentence pre-dates Miller is insufficient to establish cause’ for failing to raise this
claim sooner” under our supreme court’s judgment in People v. Dorsey, 2021 IL 123010, ¶ 73. In
Dorsey, our supreme court held that it had recently 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.” Dorsey, 2021 IL 123010, ¶ 74. In reply to the
1 We agree with the State that: “While defendant’s brief offers no real argument in support of his cause for failure to bring his claim sooner, his petition asserts that the unavailability of [the Miller line of cases] at the time of his sentencing establishes the required cause.” -8- 1-21-1416
State, defendant argued that Dorsey does not compel this court’s numerous findings that Miller
does not provide “cause” for emerging adults to raise in a successive petition proportionate
penalties clause claims based on the core Miller rationale that the status of brain development
requires consideration in sentencing. Defendant’s arguments are not persuasive. We find that
defendant argues the question of whether Dorsey should apply in this case; but that question has
been answered by our supreme court, as found almost universally by this court, and we cannot
change it. It is clear that Dorsey does apply to proportionate penalties clause claims by emerging
adults with “developing brains.”
¶ 22 In People v. Walker, 2022 IL App (1st) 201151, this court found as follows:
“If 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. Instead, the
unavailability of Miller and the line of cases extending the rule of Miller under
Illinois law ‘at best deprived defendant of “some helpful support” for his state
constitutional law claim, which is insufficient to establish ‘cause.’ [Citation.]’
Dorsey, 2021 IL 123010, ¶ 74; see also People v. Guerrero, 2012 IL 112020, ¶ 20
(‘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’).” Walker, 2022 IL App (1st) 201151, ¶ 29.
And in People v. Walsh, 2022 IL App (1st) 210786, this court recognized that:
“this court has universally concluded that cause was not established based on the
evolution of the case law beginning with Miller. Defendant has not established
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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.” Walsh, 2022 IL App (1st) 210786, ¶ 34.
¶ 23 Defendant has failed to present a cogent argument Dorsey does not apply in this case.
This court is bound to follow the decisions of our supreme court and a failure to do so is a
serious error. People v. Blalock, 2020 IL App (1st) 170295, ¶ 37 (citing Yakich v. Aulds, 2019 IL
123667, ¶ 13, People v. Mitchell, 2012 IL App (1st) 100907, ¶ 72).
¶ 24 Defendant calls the holding in Dorsey obiter dicta and attempts to distinguish it from the
case at hand by characterizing Dorsey’s rationale as applying to juveniles rather than emerging
adults. But what defendant ignores is that our courts have conclusively agreed that this is a
distinction without a difference. This court has held that for purposes of applying Miller-based
standards in sentencing emerging adults may establish that they are similar enough to juveniles
to receive similar treatment. See People v. Thompson, 2015 IL 118151, ¶ 38; People v. Harris,
2018 IL 121932, ¶ 46, Walsh, 2022 IL App (1st) 210786, ¶ 30 (citing People v. Horshaw, 2021
IL App (1st) 182047, ¶ 69); People v. Ruiz, 2020 IL App (1st) 163145, ¶¶ 56, 58.
¶ 25 Defendant claims that “young adults *** were prevented from advancing a proportionate
penalties clause claims *** until 2015, when the Illinois Supreme Court first opened the door for
raising an ‘emerging adult’ Miller claim in the post-conviction context.” We disagree. This court
has recognized that “Illinois courts have long recognized the differences between persons of
mature age and those who are minors for purposes of sentencing.” (Emphases added.) Dorsey,
2021 IL 123010, ¶ 74. Our courts merely formally recognized that an arbitrary line does not exist
at 18-years of age for proportionate penalties clause purposes and expressly allowed Miller-based
standards to be applied to emerging adults; but that does not provide reasoned grounds not to
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apply Dorsey. Compare Harris, 2018 IL 121932, ¶¶ 60-61. In Dorsey our supreme found that
pre-Miller, our proportionate penalties clause was an appropriate vehicle to test our evolving
standards of decency and pre-Miller, when the question as to whether Miller principles apply to
eighth amendment challenges by young adults did not exist as a question in the law, our
standards included a recognition of the difference between mature and immature individuals. See
People v. LaPointe, 2018 IL App (2d), 160902, ¶¶ 58-59 (relied upon by Dorsey and explaining
why Miller does not provide cause for failure to raise a proportionate penalties clause claim
based on having “less impulse control, mental and emotional development, and fixity of
character” as a young adult (in that case 18-years old)). We conclude that the long-standing
recognition of the difference between adults and juveniles and our proportionate penalties clause
jurisprudence is “objective indicia that [defendant] could have cited in his prior petitions” for the
proposition that our society has evolved to embrace sentencing leniency in defendant’s alleged
circumstances. 2
2 Although not precedential, we note for “historical significance” this court’s findings in People v. Gomez, 2022 IL App (1st) 200317-U:
“In our view, ‘societal judgment’ on how to sentence juveniles and youthful offenders emerged here in Illinois long before Roper, Graham, and Miller. [Citation.] We are particularly mindful of People ex rel. Bradley v. Superintendent, 148 Ill. 413 (1894), a case decided by our supreme court more than a century ago. In Bradley, the court considered whether confinement of an 18-year-old and a 20-year-old to the Illinois State Reformatory for a ‘term of commitment to be terminated by the board of managers’ of the Reformatory, but not to exceed 20 years, violated the proportionate penalties clause. [(Emphasis added.)] [Citation.] Although the terms ‘neuroscience’ or ‘brain research’ appear nowhere in the court’s decision, there was nonetheless a recognition by the court that minors behave differently than do mature adults and thus warrant different treatment. In affirming the minors’ sentences, the court stated that ‘[t]here is in the law of nature, as well as in the law that
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¶ 26 Defendant seeks to have it both ways: Miller applies because emerging adults are like
juveniles, but Dorsey does not because emerging adults are not juveniles. We cannot permit or
endorse such gamesmanship of our supreme court’s decisions. Blalock, 2020 IL App (1st)
170295, ¶ 37 (citing Aulds, 2019 IL 123667, ¶ 13, Mitchell, 2012 IL App (1st) 100907, ¶ 72). We
find defendant’s petition fails as a matter of law because based on the claims in the petition
defendant cannot establish “cause” for failing to raise his claim sooner. 725 ILCS 5/122-1(f)
(West 2020). Having found defendant failed to establish “cause” for failing to raise the claims in
the current petition sooner, we decline to address the question of whether defendant was
“prejudiced” by the failure. See Walker, 2022 IL App (1st) 201151, ¶ 31 (quoting People v.
Brown, 225 Ill. 2d 188, 207 (2007)). Accordingly, the trial court’s judgment is affirmed.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 29 Affirmed.
governs society, a marked distinction between persons of mature age and those who are minors,—the habits and characters of the latter are presumably, to a large extent, as yet unformed and unsettled.’ [Citation.]” (Emphasis added.) Gomez, 2022 IL App (1st) 200317-U, ¶ 50.
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