2022 IL App (1st) 210916-U FIRST DISTRICT, FIRST DIVISION December 27, 2022
No. 1-21-0916
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________
) Appeal from the THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of ) Cook County, Illinois. Plaintiff-Appellee, ) v. ) No. 00 CR 27953 ) ARMANDO GUTIERREZ, ) Honorable ) Thomas Joseph Hennelly, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Lavin and Justice Hyman concurred in the judgment.
ORDER
¶1 Held: Circuit court’s denial of defendant’s motion for leave to file successive postconviction petition affirmed. Defendant failed to establish cause and prejudice for his claim that his 60-year sentence for an offense he committed at the age of 24 violates the proportionate penalties clause of the Illinois Constitution.
¶2 Following a jury trial, defendant Armando Gutierrez was convicted of first degree murder
and attempt first degree murder. Defendant was sentenced to consecutive terms of 40 years’
imprisonment for first degree murder and 20 years’ imprisonment for attempt first degree
murder. We affirmed his convictions and sentences on direct appeal. People v. Gutierrez, 387 Ill.
App. 3d 1, 7 (2008). We also affirmed the second-stage dismissal of defendant’s initial No. 1-21-0916
postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2008)). People v. Gutierrez, 2013 IL App (1st) 111309-U. Defendant filed a motion for
leave to file a successive postconviction petition, which was denied by the circuit court, and
affirmed on appeal. People v. Gutierrez, 2016 IL App (1st) 141802-U (unpublished summary
order under Illinois Supreme Court Rule 23(c)).
¶3 Defendant sought leave to file a second successive postconviction petition, arguing that
because he was 24 years old at the time of the offense, his 60-year sentence is an unconstitutional
de facto life sentence under Miller v. Alabama, 567 U.S. 460 (2012), the eighth amendment to
the United States Constitution, and the proportionate penalties clause of the Illinois Constitution.
The circuit court denied leave to file. On appeal, defendant only challenges the denial of leave to
file his as-applied proportionate penalties claim. For the following reasons, we affirm.
¶4 BACKGROUND
¶5 Defendant was convicted of first degree murder of Jorge Castaneda and attempt first
degree murder of Jorge’s brother, Nester Castaneda. We set out the facts of defendant’s offense
in detail in our opinion disposing of his direct appeal and order affirming the dismissal of his
initial postconviction petition. See Gutierrez, 387 Ill. App. 3d at 2-4; Gutierrez, 2013 IL App
(1st) 111309-U, ¶¶ 4-14. Since most of those facts are unnecessary for an understanding of the
issues raised in this appeal, we summarize them briefly.
¶6 Defendant was close friends with Jorge and Nester. On October 25, 2000, defendant was
working on his truck in the backyard of the Castanedas’ home with Jorge, Jorge and Nester’s
cousin, Antonio Castaneda, and two men known as “Goofy” and “Trigger.” Around 9:30 p.m.,
rival gang members drove through a nearby alley, shouting at them. Defendant retrieved a gun
from a safe in Nester’s room and placed it on his truck. Defendant smoked a “rolled cigarette”
-2- No. 1-21-0916
with Goofy and Trigger and then wanted to leave. His friends tried to stop him from driving
because he was stumbling, mumbling to himself, and was recently in a car accident. Defendant
got angry, grabbed the gun, and started yelling and shooting. Defendant shot Jorge seven times,
killing him. He ran into the basement and shot Nester in the chest, stomach, and groin.
¶7 Defendant testified that Antonio told Jorge that defendant was “trying to hook up with
[Jorge’s] little sister.” Jorge became furious and hit defendant in the forehead with the gun.
Defendant wrestled the gun from Jorge. When Jorge grabbed a “piece of steel,” defendant shot
him and ran into the basement. Nester “came at him, and [defendant] just shot at him.” The jury
found defendant guilty of first degree murder of Jorge and attempt first degree murder of
Nester. 1
¶8 The presentence investigation report (PSI) reflected that defendant was 24 years old at
the time of the shooting. In 1997, defendant was convicted of aggravated battery and possession
of a firearm at a school/public housing. He was sentenced to consecutive terms of 2 years’
imprisonment for each offense. In 2000, he was convicted of aggravated battery of a peace
officer and received 40 days of community service and one year conditional discharge, which
was “terminated unsatisfactorily.” Defendant reported that he had a “good childhood” and “never
suffered any abuse or neglect.” Defendant graduated from high school and did not have any
learning disabilities or mental health issues. Defendant reported smoking marijuana since the age
of 14, drinking alcohol and smoking PCP since the age of 15, and smoking PCP on a “daily
basis.” He was a member of the Insane Disciples, but “quit the gang after he was incarcerated.”
1 Defendant was also convicted of aggravated battery with a firearm of Nester, which the trial court merged with his conviction for attempt murder. -3- No. 1-21-0916
¶9 In aggravation, the State presented the victim impact statement of Jorge and Nester’s
mother. In mitigation, defense counsel introduced certificates defendant earned while
incarcerated to show that he “has taken steps to improve his life.” Counsel argued that defendant
showed remorse, found religion, “absented himself from gang activity,” and is not “capable of
any sort of violence in the future.”
¶ 10 In imposing sentence, the trial court considered the facts of the case, the PSI, and the
statutory factors in aggravation and mitigation. Specifically, the court considered defendant’s
“criminal history and what that shows in terms of whether [he’s] likely to commit additional
crimes ***, [his] potential danger to the community, punishment, [and his] potential for
rehabilitation ***.” The trial court noted that defendant committed a “motiveless crime” where
he killed and seriously injured two people who he “considered for all intensive purposes family
to [him].” Defendant had a “significant” criminal history, showing his “inability *** to control
[himself] in a non-violent way.”
¶ 11 The trial court also considered the “good things” in defendant’s PSI, including that he
graduated from high school, was gainfully employed, and had two children. Weighing these
factors, the court found that defendant “need[ed] to be confined for a certain period of time ***
to protect the public, as well as to punish [him] for [his] actions.” The trial court sentenced
defendant to consecutive terms of 40 years’ imprisonment for first degree murder and 20 years
for first degree murder.
¶ 12 Following sentencing, the trial court appointed the Office of the State Appellate Defender
to prepare defendant’s appeal, but no timely notice of appeal was filed. On June 23, 2005,
defendant filed a petition for postconviction relief, alleging that appointed counsel was
-4- No. 1-21-0916
ineffective for failing to file a timely notice of appeal. On November 2, 2005, the circuit court
granted defendant’s petition and gave him leave to file a late notice of appeal, instanter.
¶ 13 Initially, this court held that we lacked jurisdiction to hear defendant’s appeal. People v.
Gutierrez, 376 Ill. App. 3d 182, 184 (2007). Our supreme court directed us to vacate our opinion
and reconsider our holding in light of People v. Ross, 229 Ill. 2d 225 (2008). On reconsideration,
we found that we had jurisdiction to consider defendant’s appeal. Gutierrez, 387 Ill. App. 3d at
2. We held that the evidence was sufficient to support defendant’s convictions and that the trial
court did not abuse its discretion in sentencing defendant, considering his “significant criminal
history and his use of a firearm in an unprovoked attack on trusting friends.” Id. at 7.
¶ 14 On August 25, 2009, defendant filed a pro se motion for leave to file a successive
postconviction petition. In November 2009, counsel on behalf of defendant filed an amended
petition for postconviction relief. The circuit court “docketed [defendant’s successive
postconviction petition] as if it were a first time petition” because defendant’s petition filed in
2005 merely secured his right to a direct appeal. The amended petition asserted, inter alia, that
defendant’s trial counsel was ineffective for failing to investigate and present a voluntary
intoxication defense. Defendant filed a pro se supplemental petition, raising additional claims.
¶ 15 The State moved to dismiss both petitions. On April 13, 2011, the circuit court granted
the State’s motion, finding that defendant “failed to make a substantial showing that his
constitutional rights were violated.” We affirmed. Gutierrez, 2013 IL App (1st) 111309-U.
¶ 16 On March 24, 2014, defendant filed a pro se “Petition for Relief from a Void Judgment”
under 735 ILCS 5/2-1401(f) (West 2014), challenging the trial court’s imposition of consecutive
sentences. The circuit court dismissed the petition.
-5- No. 1-21-0916
¶ 17 On June 24, 2014, defendant filed a motion for leave to file a successive postconviction
petition. 2 Defendant argued, inter alia, that his statement to detectives was coerced, the State
used perjured testimony, and trial counsel was ineffective for failing to present a voluntary
intoxication defense in light of newly obtained evidence supporting the defense. On November 6,
2014, the circuit court denied defendant leave to file, finding that he failed to establish cause and
prejudice.
¶ 18 Defendant’s appeals from the dismissal of his petition for relief from judgment and denial
of leave to file a successive postconviction petition were consolidated. On March 23, 2016, this
court granted the Office of the State Appellate Defender’s motion for leave to withdraw pursuant
to Pennsylvania v. Finley, 481 U.S. 551 (1987), and affirmed both judgments. Gutierrez, 2016 IL
App (1st) 141802-U, ¶¶ 2-3 (unpublished summary order under Illinois Supreme Court Rule
23(c)).
¶ 19 On May 28, 2020, defendant sought leave to file a second successive postconviction
petition. He alleged that his sentence is an unconstitutional de facto life sentence under the eighth
amendment to the United States Constitution, Miller v. Alabama, 567 U.S. 460 (2012), and the
“Rehabilitation Clause” of the Illinois Constitution because the sentencing court failed to
consider his youth and its attendant characteristics. 3 In support of his petition, defendant
attached: Dr. James Garbarino’s report entitled “Scientific Rationale to Extend the
Graham/Roper/Miller protections upward from age 18 to 25,” discussing brain development of
young adults, including defendant specifically; testimony of Dr. Lawrence Steinberg in Cruz v.
2 Defendant’s petition is titled “Motion for Leave to File Second-Successive Petition for Post- Conviction Relief.” However, because the circuit court docketed his previous petition as his initial postconviction petition, this is actually defendant’s first successive postconviction petition. 3 Defendant also challenged two 1996 convictions for unlawful use of a weapon, but he withdrew this claim in his amended petition. -6- No. 1-21-0916
Unites States, Case No. 3:11-cv-00787 (D. Conn.), discussing brain development of young
adults; and various certificates defendant received while incarcerated.
¶ 20 On April 21, 2021, defendant filed a motion for leave to file an amended successive
postconviction petition, raising an as-applied challenge to his sentence under the proportionate
penalties clause of the Illinois Constitution. Defendant argued that our supreme court has
“opened the door for a young-adult offender to demonstrate, through an adequate factual record,
that his own specific characteristics were so like those of a juvenile that imposition of a life
sentence absent the safeguards established in Miller” shocks the moral sense of the community.
Specifically, defendant alleged that he “suffered difficulties functioning at a normal grade level,”
had a dysfunctional and abusive home life, and abused substances since the age of 12. On June
25, 2021, the circuit court denied defendant leave to file. 4
¶ 21 ANALYSIS
¶ 22 On appeal, defendant argues that he has made a prima facie showing of cause and
prejudice for his as-applied claim under the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970, art. 1, § 11). Specifically, defendant asserts that “his de facto life
sentence of 60 years’ imprisonment violates the Proportionate Penalties Clause as applied to his
case, where [he] was 24 years old at the time of the offense and has presented new evidence
concerning his background and community standards around sentencing young adults.”
¶ 23 The Act provides a remedy to a criminal defendant whose federal or state constitutional
rights were substantially violated at trial or sentencing. People v. Pitsonbarger, 205 Ill. 2d 444,
455 (2002). The Act contemplates the filing of only one postconviction petition without leave of
4 While the circuit court erroneously applied the first-stage “frivolous and patently without merit” standard as opposed to the cause-and-prejudice test, we may affirm on any basis in the record, regardless of the lower court’s reasoning. People v. Anderson, 401 Ill. App. 3d 134, 138 (2010). -7- No. 1-21-0916
court. People v. Bailey, 2017 IL 121450, ¶ 35; 725 ILCS 5/122-1(f) (West 2020). While
successive postconviction petitions are “highly disfavored” (Bailey, 2017 IL 121450, ¶ 39), leave
of court may be granted if a defendant establishes both “cause” and “prejudice.” (725 ILCS
5/122-1(f)). “Cause” is “an objective factor that impeded [the defendant’s] *** ability to raise a
specific claim” during his initial postconviction proceedings. 725 ILCS 5/122-1(f). “Prejudice” is
established by showing that the claim not raised “so infected the trial that the resulting
conviction or sentence violated due process.” Id. A defendant must make a prima facie showing
of cause and prejudice. Bailey, 2017 IL 121450, ¶ 24.
¶ 24 “[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 ***, that the claims alleged
by the [defendant] fail as a matter of law ***.” People v. Smith, 2014 IL 115946, ¶ 35. We
review the denial of defendant’s motion for leave to file a successive postconviction petition de
novo. Bailey, 2017 IL 121450, ¶ 13.
¶ 25 In People v. Dorsey, 2021 IL 123010, ¶ 74, our supreme court held that the unavailability
of Miller and its progeny does not provide defendants with cause for challenging their sentences
under the proportionate penalties clause because “Illinois courts have long recognized the
differences between persons of mature age and those who are minors for purposes of
sentencing.” The unavailability of Miller “at best deprived defendant ‘of some helpful support’
for his state constitutional law claim, which is insufficient to establish ‘cause.’ ” Id. Under
Dorsey, defendant has failed to establish cause for failing to bring his proportionate penalties
claim in his initial postconviction petition. See People v. Peacock, 2022 IL App (1st) 170308-B,
¶ 20 (“Following Dorsey, reviewing courts have repeatedly concluded that Miller and its progeny
-8- No. 1-21-0916
do not provide petitioners seeking leave to file successive petitions with the requisite cause for
challenging their sentences on proportionate penalties grounds.”).
¶ 26 Defendant has also failed to establish prejudice, as his proportionate penalties claim is not
legally cognizable. Although defendant has abandoned his argument that Miller applies to him
directly, his proportionate penalties claim relies on the principles espoused in Miller. In Miller,
the Supreme Court held that “mandatory life without parole for those under the age of 18 at the
time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
punishments.’ ”Miller, 567 U.S. at 465. The sentencing court must “take into account how
children are different, and how those differences counsel against irrevocably sentencing them to
a lifetime in prison.” Id. at 480. Our supreme court has since extended Miller to juveniles
sentenced to discretionary sentences (People v. Holman, 2017 IL 120655, ¶ 40) and de facto life
sentences (sentences over 40 years’ imprisonment) (People v. Buffer, 2019 IL 122327, ¶ 41).
Here, defendant asserts that he should be allowed to file a successive postconviction petition “to
develop a factual record in support of his as-applied claim that his brain development at age 24
and his de facto life sentence imposed without regard to the Miller factors” violates the
proportionate penalties clause of the Illinois Constitution.
¶ 27 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. 1, § 11. To succeed on a proportionate penalties claim, a
defendant must show that the punishment for the offense 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). To comply with this constitutional mandate, the court must balance
the goals of retribution and rehabilitation. People v. Quintana, 332 Ill. App. 3d 96, 109 (2002).
-9- No. 1-21-0916
¶ 28 Our supreme court has acknowledged that, under certain circumstances, a young adult
offender may raise an as-applied challenge to a life sentence under the proportionate penalties
clause in a postconviction petition, relying on the evolving science and societal standards
underlying Miller. See People v. Harris, 2018 IL 121932, ¶ 48; see also People v. Thompson,
2015 IL 118151, ¶ 44. In those cases, it may be appropriate to remand the cause to the circuit
court for further factual development. See People v. House, 2021 IL 125124, ¶ 32.
¶ 29 However, consistent with “society’s current general recognition that 21 is considered the
beginning of adulthood,” Illinois courts have refused to extend this line of cases to defendants
who were 21 or older at the time of the offense. People v. Humphrey, 2020 IL App (1st) 172837,
¶¶ 33-34 (rejecting 21-year-old defendant’s Miller-based proportionate penalties claim); People
v. Green, 2022 IL App (1st) 200749, ¶ 42 (21-year-old defendant failed to establish prejudice for
proportionate penalties claim, noting that “the line of adulthood has been drawn at age 21”);
People v. Robinson, 2021 IL App (1st) 192289, ¶ 48 (rejecting 24-year-old’s Miller-based
proportionate penalties claim); People v. Rivera, 2020 IL App (1st) 171430, ¶ 26-27 (same); but
see People v. Savage, 2020 IL App (1st) 173135, ¶¶ 53, 70-71 (22-year-old defendant made a
showing of a “gist” of proportionate penalties claim where he was addicted to drugs since the age
of nine). Defendant, who was 24 years old at the time of the crime, was “well past *** the 18-to-
21-year-old group of defendants who have asserted as-applied Miller-based claims under the
proportionate penalties clause.” Robinson, 2021 IL App (1st) 192289, ¶ 48.
¶ 30 Defendant relies on several cases to support his argument that he established prejudice
for his “emerging-adult sentencing claim.” However, all but one (Savage, 2020 IL App (1st)
173135) of these decisions involved defendants under the age of 21. See, e.g., People v. Daniels,
2020 IL App (1st) 171738, ¶ 1 (18-year-old defendant); People v. Horshaw, 2021 IL App (1st)
- 10 - No. 1-21-0916
182047, ¶ 1 (18-year-old defendant); People v. Glinsey, 2021 IL App (1st) 191145, ¶ 2 (18-year-
old defendant); People v. Ross, 2020 IL App (1st) 171202, ¶ 3 (19-year-old defendant).
¶ 31 Savage, 2020 IL App (1st) 173135, is likewise inapposite. There, the court held that
defendant’s proportionate penalties claim was not frivolous or patently without merit. Id. ¶ 76.
Although he was seven months past his 21st birthday at the time of the crime, the record showed
that he was addicted to drugs since the age of nine, used drugs daily, and had mental health
issues. ¶¶ 70-72. The cause-and-prejudice test is a “higher standard than the first-stage frivolous
or patently without merit standard.” Smith, 2014 IL 115946, ¶ 35. And cases decided after
Savage have declined to extend as-applied Miller-based claims under the proportionate penalties
clause to defendants over the age of 21. See, e.g., People v. Kruger, 2021 IL App (4th) 190687,
¶¶ 31-32; People v. Williams, 2021 IL App (1st) 190535, ¶¶ 34-36. Defendant fails to cite any
authority extending Miller protections to an offender who, like himself, was 24 years old at the
time of the offense.
¶ 32 Defendant’s 60-year discretionary sentence for a senseless murder and attempt murder,
which he committed well past the age of legal adulthood, does not “shock the moral sense of the
community.” See People v. Carrion, 2020 IL App (1st) 170001, ¶ 30 (19-year-old defendant’s
55-year sentence for “a senseless murder, which he committed as the principal at the legal age of
adulthood, does not shock the moral sense of the community”). The trial court imposed
discretionary sentences within the statutory ranges of 20 to 60 years’ imprisonment for first
degree murder and 6 to 30 years for attempt murder. 730 ILCS 5/5-8-1(a)(1)(a) (West 2002); 730
ILCS 5/5-8-1(a)(3) (West 2002). Carefully weighing defendant’s criminal history and the nature
and circumstances of the offense, the trial court found that the need to protect the public from
defendant’s inability “to control [himself] in a non-violent way” outweighed his rehabilitative
- 11 - No. 1-21-0916
potential. Considering defendant’s “significant criminal history and his use of a firearm in an
essentially unprovoked attack on trusting friends” (Gutierrez, 387 Ill. App. 3d at 7), we cannot
say that his sentence shocks the moral sense of the community.
¶ 33 Because defendant has failed to establish cause and prejudice, the circuit court properly
denied him leave to file a second successive postconviction petition.
¶ 34 CONCLUSION
¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 36 Affirmed.
- 12 -