People v. Harris

2022 IL App (1st) 200697-U

Opinion

2022 IL App (1st) 200697-U Order filed February 17, 2022 FIRST DISTRICT FOURTH DIVISION

No. 1-20-0697

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. 02 CR 10438 ) ANDRE HARRIS, ) Honorable ) Peggy Chiampas, Defendant-Appellant. ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Reyes and Justice Martin concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s denial of defendant’s motion for leave to file a successive postconviction petition where he failed to satisfy the cause-and- prejudice test for his claim that his 40-year sentence was unconstitutional.

¶2 Defendant Andre Harris appeals the denial of his pro se motion for leave to file a successive

postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 2018)). On appeal, he contends that he established cause and prejudice for his claim that his

40-year sentence violates the eighth amendment (U.S. Const., amend. VIII) under Miller v. No. 1-20-0697

Alabama, 567 U.S. 460 (2012), and its progeny. He also asserts his sentence violates the Illinois

Constitution’s proportionate penalties clause (Ill. Const. 1970, art. I, § 11), and argues that Miller

and its progeny should apply to him although he was 20 years old on the date of the offense. For

the following reasons, we affirm.

¶3 Following a bench trial, defendant was convicted of murder under an accountability theory

and aggravated battery. He received concurrent prison terms of 40 years and 5 years, respectively.

We set forth the facts in our orders on direct appeal (People v. Harris, No. 1-08-1377 (Oct. 18,

2010) (unpublished order under Illinois Supreme Court Rule 23)) and appeal from the dismissal

of his initial postconviction petition (People v. Harris, 2015 IL App (1st) 122830-U), and we recite

them here to the extent necessary to our disposition.

¶4 Defendant, William Chatman, Joseph Tillman, and Ravonna Bledson were charged with

first degree murder and aggravated battery in connection with the beating and shooting of Ana

Sepulveda on September 17, 2001.1

¶5 At trial, the evidence showed that defendant, Chatman, Tillman, and Bledson were

members of the Gangster Disciples street gang and were celebrating defendant’s twentieth birthday

in an apartment in Chicago. At some point, Chatman brought Sepulveda, who was a member of a

rival gang and had recently discharged a firearm into the apartment toward defendant. Defendant

pointed a firearm at Sepulveda, and he and the others beat her by kicking and “stomping” her.

Defendant stated that they needed to kill her before they were killed or incarcerated. After

1 William Chatman, Joseph Tillman, and Ravonna Bledson are not parties to the instant appeal. Tillman and Chatman pled guilty to first degree murder and each received 21 years’ imprisonment, while Bledson was acquitted of murder. Defendant rejected the State’s offer to plead guilty to murder in exchange for a 20-year sentence.

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defendant and Tillman passed the firearm back and forth and debated who would kill Sepulveda,

Tillman shot and killed her. In the following days, defendant attempted to create a false alibi,

threatened witnesses, and helped coordinate cleaning the apartment. Defendant, Tillman, and

Bledson then fled to Ohio, where defendant was arrested for an unrelated crime. He eventually

confessed his involvement in Sepulveda’s murder.

¶6 The trial court found defendant guilty of murder under a theory of accountability and

aggravated battery.

¶7 Defendant’s presentence investigation report (PSI) reflected prior convictions for

attempted robbery in Ohio, robbery, “CTTB,” 2 theft, possession of cannabis, and carrying a

firearm in a school. Defendant had pending cases for possession of a weapon and contraband in a

penal institution and violating probation for his robbery conviction.

¶8 Defendant reported a good relationship with his mother, but was raised in an area of

Chicago that was “gang and drug infested.” When he was eight years old, defendant’s family

moved to Evanston, Illinois. Defendant reported being physically abused from ages 3 to 10 by his

mother’s boyfriend and that he continuously ran away from home. He was expelled from school

in fourth grade for disciplinary issues and was enrolled in two schools for children with

psychological and emotional issues. He was expelled from high school in tenth grade.

¶9 As a child, defendant was diagnosed with attention deficit hyperactivity disorder (ADHD),

bipolar disorder, and impulse control disorder. He was treated for major depression at age 10 and

had been prescribed psychotropic medications, which he ceased taking at age 16. Defendant stated

he attempted suicide four times. He tried marijuana at age 9, started drinking alcohol at age 12,

2 The PSI does not define “CTTB.”

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and consumed both daily from age 15. He was a member of the Gangster Disciples street gang,

and all of his friends were gang members.

¶ 10 Attached to the PSI were several “misconduct reports” from one of defendant’s schools,

showing his suspension for attacking three students in separate incidents at age 10. Records from

another school documented defendant’s tendencies to be “drawn to negative group behavior” and

“physically victimize weaker peers to either take out his frustrations or impress his fellow peers.”

¶ 11 At sentencing, the State argued in aggravation that defendant had “the strongest motive to

kill *** Sepulveda” because he told his friends that she had shot at him. Defendant was on

probation for robbery when he committed the instant offense, had been convicted of attempted

robbery in Ohio after fleeing there following the crime, and his crimes had “escalate[d].” While

incarcerated for Sepulveda’s murder, defendant was charged with possession of contraband in a

penal institution after he was caught chasing another inmate with a homemade knife. Shortly

thereafter, defendant was again charged after a shank was found hidden in his court documents.

The State argued that defendant was dangerous and had minimal rehabilitative potential given his

criminal history and lack of remorse.

¶ 12 In mitigation, defendant’s mother testified defendant had suffered from mental health

problems as a child, took medications, and at one point, had been placed in a group home. Defense

counsel argued that defendant was not the shooter, who pled guilty and received 21 years in prison.

Counsel emphasized defendant’s mental health problems, noted he was not taking medication at

the time of the murder, and may have self-medicated with drugs and alcohol. In allocution,

defendant stated that he was young and did not know how to tell the others to stop harming

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Sepulveda. Regarding the pending charges of possessing contraband in a penal institution,

defendant indicated that he was in a “hard” division at the jail.

¶ 13 In imposing sentence, the court called the offenses “brutal, cold-blooded, [and]

premeditated,” adding that, “Brutal is an understatement.” It noted defendant was on probation at

the time of the incident and committed subsequent violent acts. The court called defendant

“dangerous” and referenced other violent incidents reported in his PSI, including multiple “well

documented” attacks on other students. It noted defendant’s prior convictions for carrying and

possessing a firearm in school and battery, and his probation violation.

¶ 14 The court stated that it considered the PSI, the arguments from both parties, and the factors

in aggravation and mitigation. Although it was “hard” to identify statutory mitigating factors “that

applied in this case,” the court noted defendant was only 20 years old at the time of the murder.

The court stated, “I’m still considering [defendant’s] youth and considering the challenges he

faced. Apparently their [sic] was a boyfriend of Mom that did something horrible to him. He does

have mental health issues. I’ve taken those into account.” It concluded that, “based on the facts of

this case and the dangerousness that [defendant] presents to society as he’s shown over and over

again for fifteen years, I believe that a substantial sentence is in order.” The trial court sentenced

defendant to concurrent prison terms of 40 years for murder and 5 years for aggravated battery.

¶ 15 We affirmed defendant’s convictions on direct appeal over his claim that the trial court

erred in failing to appoint new counsel for his posttrial claim of ineffective assistance. Harris, No.

1-08-1377 (Oct. 18, 2010) (unpublished order under Illinois Supreme Court Rule 23). We also

affirmed the summary dismissal of his initial postconviction petition, where he argued his sentence

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constituted a “trial tax” and was unconstitutionally disparate to his co-offenders’ sentences. Harris,

2015 IL App (1st) 122830-U.

¶ 16 On February 15, 2019, defendant filed the instant pro se motion for leave to file a

successive postconviction petition, alleging his 40-year sentence for a crime committed when he

was 20 years old violated the eighth amendment and the proportionate penalties clause based on

Miller and its progeny. Defendant contended he established cause for bringing his claim because

the underlying cases were not yet decided when he filed his initial postconviction petition in May

2012. At the time of the offense, he was “more similar in mental capacity and prone to the same

whims as a juvenile than a full grown adult,” and his sentence failed to reflect his rehabilitative

potential. Moreover, he did not “pull the trigger” yet received a harsher sentence than his co-

offenders who were also juveniles or young adults.

¶ 17 In the memorandum attached to his motion, defendant reiterated his claim, emphasizing

that “juveniles have diminished culpability and greater prospects for reform” and his sentence did

not reflect his rehabilitative potential. He added that he was “considerably different and mature in

his intelligence and his approach to life now.”

¶ 18 Defendant attached several articles regarding research on brain development, which

discussed that emerging research showed juveniles’ brains were still developing and did not reach

full maturity until the mid-20s.

¶ 19 On March 6, 2020, the circuit court denied defendant leave to file a successive petition,

finding his sentence did “not even arguably violate Miller” where it was not a de facto life term.

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¶ 20 On appeal, defendant contends his claim that his 40-year sentence violated the eighth

amendment and the proportionate penalties clause satisfied the cause-and-prejudice test for filing

a successive postconviction petition.

¶ 21 The Act permits criminal defendants to challenge their convictions or sentences on

constitutional grounds. People v. Beaman, 229 Ill. 2d 56, 71 (2008). The Act generally

contemplates the filing of only one petition. People v. Ortiz, 235 Ill. 2d 319, 328 (2009); see also

725 ILCS 5/122-3 (West 2016). To file a successive postconviction petition, a defendant must first

obtain leave of court. See 725 ILCS 5/122-1(f) (West 2016); People v. Tidwell, 236 Ill. 2d 150,

157 (2010).

¶ 22 The bar against successive proceedings is relaxed only where the defendant can establish

(1) cause and prejudice for failing to raise the claim earlier, or (2) actual innocence. 725 ILCS

5/122-1(f) (West 2016); People v. Edwards, 2012 IL 111711, ¶¶ 22, 23. Here, defendant asserts

that he has satisfied the cause-and-prejudice test.

¶ 23 A defendant need only set out a prima facie case at the leave-to-file stage. People v. Bailey,

2017 IL 121450, ¶ 24. “It is the defendant’s burden to demonstrate both cause and prejudice for

each claim raised in his successive petition.” People v. Thompson, 383 Ill. App. 3d 924, 929

(2008). Cause constitutes an objective factor that impeded the defendant’s ability to raise a specific

claim during his initial postconviction proceedings, and prejudice exists when the alleged error so

infected the trial that the resulting conviction or sentence violated due process. 725 ILCS 5/122-

1(f) (West 2018).

¶ 24 “[A] defendant’s pro se motion for leave to file a successive postconviction petition will

meet the section 122-1(f) cause and prejudice requirements if the motion adequately alleges facts

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demonstrating cause and prejudice.” People v. Smith, 2014 IL 115946, ¶ 33. “To meet the cause-

and-prejudice test *** requires the defendant to submit ‘enough in the way of documentation to

allow a circuit court to make that determination.’ ” (Internal citations omitted.) Id. ¶ 35. Leave 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 petition fail as a matter of law or where the successive petition with supporting documentation

is insufficient to justify further proceedings.” (Internal citations omitted.) Id. We review a trial

court’s ruling on a motion for leave to file a successive postconviction petition de novo. Id. ¶ 13.

¶ 25 We address defendant’s eighth amendment claim first. The parties agree that defendant

established cause for failing to raise this claim earlier because the underlying case law was decided

after he filed his initial postconviction petition. We agree (see People v. Dorsey, 2021 IL 123010,

¶ 35), and thus limit our analysis to whether defendant’s eighth amendment claim satisfies the

prejudice prong.

¶ 26 The eighth amendment prohibits “cruel and unusual punishments” and applies to the states

through the fourteenth amendment. U.S. Const. amend. VIII; People v. Davis, 2014 IL 115595,

¶ 18. In Miller, the Supreme Court held that mandatory life sentences without parole for juveniles

under age 18 at the time of their crimes violates the eighth amendment’s prohibition against cruel

and unusual punishments. Following that decision, the Illinois supreme court held that Miller and

its progeny apply to defendants who committed offenses as juveniles and received life

imprisonment, whether the sentence was mandatory or discretionary, for natural life or a de facto

life term, and whose sentencing court failed to consider their youth and its attendant characteristics.

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People v. Buffer, 2019 IL 122327, ¶ 27. The Buffer court also held that a prison sentence of over

40 years imposed on a juvenile offender constitutes a de facto life term. Id. ¶ 41.

¶ 27 Defendant was convicted of first degree murder on a theory of accountability. He argues

that, although he was 20 years old when he committed the offense, he was entitled to Miller’s

protections for juveniles based on the articles attached to the motion explaining that the juvenile

brain does not fully develop until the mid-20s. He argues on appeal that his PSI demonstrated his

mental state was more similar to that of a juvenile than an adult. Thus, defendant contends that

his de facto life sentence of 40 years’ imprisonment is unconstitutional because the trial court did

not fully consider the characteristics of his youth or his rehabilitative potential.

¶ 28 Here, under Buffer, defendant’s sentence of exactly 40 years does not constitute a de facto

life sentence for a juvenile, much less a 20-year-old offender. See id.; see also People v. Carrion,

2020 IL App (1st) 171001, ¶ 28 (19-year-old offender sentenced to a 55-year term for murder

could not invoke eighth amendment because “the categorical findings made by Miller and its

progeny under the federal eighth amendment apply only to juveniles”); cf. People v. Ruiz, 2020 IL

App (1st) 163145, ¶¶ 44-45 (in the context of a proportionate penalties claim, finding Buffer’s rule

concerning 40-year lower limit for de facto life sentences for juveniles did not necessarily apply

to a 19-year-old youthful offender). Defendant therefore cannot demonstrate prejudice with respect

to an eighth amendment claim.

¶ 29 We next consider defendant’s claim that his sentence violates the proportionate penalties

clause of the Illinois Constitution.

¶ 30 Pursuant to the proportionate penalties clause, “[a]ll penalties shall be determined both

according to the seriousness of the offense and with the objective of restoring the offender to useful

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citizenship.” Ill. Const. 1970, art. I, § 11. A sentence violates the proportionate penalties clause if

“ ‘the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense

as to shock the moral sense of the community.’ ” Carrion, 2020 IL App (1st) 171001, ¶ 29

(quoting People v. Miller, 202 Ill. 2d 328, 338 (2002)). Our supreme court has never defined what

constitutes a cruel or degrading sentence that is “wholly disproportionate to the offense” because

“as our society evolves, so too do our concepts of elemental decency and fairness which shape the

‘moral sense’ of the community.” Miller, 202 Ill. 2d at 339. “To determine whether a sentence

shocks the moral sense of the community, a reviewing court considers the objective facts of the

case in light of ‘the community’s changing standard of moral decency.’ ” People v. Gomez, 2020

IL App (1st) 173016, ¶ 30 (quoting People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008)).

¶ 31 Defendant was 20 years old at the time of the offense and actively participated in the crimes

by brutally beating Sepulveda, telling his friends they needed to kill her, and then passing the

firearm to another co-offender to kill her. Defendant then instructed other people to clean the scene,

threatened witnesses, attempted to create a false alibi, and fled to Ohio, where he participated in

another violent crime. Defendant’s 40-year sentence following these events is not cruel, degrading,

or so wholly disproportionate to the offense that it shocks the moral sense of the community.

¶ 32 Defendant argues on appeal that his age at the time of the crime and his background,

including childhood diagnoses for various mental illnesses and suffering physical abuse,

demonstrate that his brain was more akin to that of a juvenile than that of an adult. He claims the

sentencing court did not consider his youth and attendant circumstances in imposing sentence, thus

violating the proportionate penalties clause.

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¶ 33 Although the parties again agree that defendant satisfied the cause prong with respect to

this claim, we disagree. Defendant relies on Miller and subsequent Illinois cases, which were

decided after he filed his initial petition, to support his claim. However, Miller was decided in the

context of an eighth amendment claim, not a proportionate penalties clause claim. Our supreme

court recently found 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, ¶ 73. The court explained that “Illinois courts have

long recognized the differences between persons of mature age and those who are minors for

purposes of sentencing. Thus, 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. (citing People v. LaPointe, 2018 IL App (2d) 160903, ¶ 59 (finding the defendant

failed to establish cause for bringing his proportionate penalties clause claim in a successive

petition and noting the subsequent emergence of additional support for a claim does not establish

cause for failing to bring the claim in earlier proceedings)).

¶ 34 In light of this ruling, we find defendant cannot establish cause for failing to raise his

proportionate penalties claim in his initial postconviction petition. See id.; see also People v.

Ruddock, 2022 IL App (1st) 173023, ¶ 72 (finding the juvenile defendant relying on Miller and its

progeny could not establish cause for failing to bring a proportionate penalties clause claim in an

earlier postconviction petition); People v. Howard, 2021 IL App (2d) 190695, ¶ 39 (finding the

same for a young adult offender).

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¶ 35 In sum, defendant has failed to establish prejudice for his eighth amendment claim and

cause for his proportionate penalties clause claim. Accordingly, we affirm the trial court’s denial

of leave to file a successive postconviction petition.

¶ 36 Affirmed.

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