People v. Hernandez

2024 IL App (2d) 230302-U

• Court: Appellate Court of Illinois
• Decided: April 5, 2024
• Docket: 2-23-0302
• Status: Unpublished

Opinion

2024 IL App (2d) 230302-U No. 2-23-0302 Order filed April 5, 2024

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

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 01-CF-2421 ) DANIEL BELMAN HERNANDEZ, ) Honorable ) Salvatore L. LoPiccolo Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justice McLaren and Justice Birkett concurred in the judgment.

ORDER

¶1 Held: Finding no arguably meritorious issues for appeal, we grant appellate counsel’s motion to withdraw, and we affirm the trial court’s judgment.

¶2 In 2003, defendant, Daniel Belman Hernandez, entered fully negotiated guilty pleas to four

counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2000)) and

one count of aggravated kidnapping (id. § 10-2(a)(2)). Per the plea agreement, he was sentenced

to consecutive prison terms totaling 39 years. He did not file a postjudgment motion or a direct

appeal. In 2017, defendant filed a pro se petition for relief under the Post-Conviction Hearing Act

(Act) (725 ILCS 5/1-122 et seq. (West 2016)). The trial court summarily dismissed the petition. 2024 IL App (2d) 230302-U

Defendant appealed, and the trial court appointed the Office of the State Appellate Defender

(OSAD) to represent defendant on appeal. Thereafter, the appellate defender moved to withdraw.

We granted the motion and affirmed the trial court. See People v. Hernandez, No. 2-18-0019, ¶ 7

(2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶3 On June 21, 2023, defendant moved under section 122-1(f) of the Act (725 ILCS 5/122-

1(f) (West 2020)) for leave to file a successive postconviction petition. His proposed petition

contended that his trial counsel had provided ineffective assistance in connection with his

sentencing and that his aggregate 39-year prison term was a de facto life sentence that violated the

eighth amendment to the United States Constitution (U.S. Const., amend VIII) as construed in

Miller v. Alabama, 567 U.S. 460 (2012), and the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11) as construed to incorporate Miller’s requirements. The

trial court denied the motion. Defendant timely appealed, and the trial court appointed OSAD to

represent defendant on appeal.

¶4 Per Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63

(1993), the appellate defender moves to withdraw as counsel. In his motion, counsel states that he

read the record and found no issue of arguable merit. Counsel further states that he advised

defendant of his opinion. Counsel supports his motion with a memorandum of law providing a

statement of facts, a list of potential issues, and arguments as to why those issues lack arguable

merit. We advised defendant he had 30 days to respond to the motion. Defendant has responded.

¶5 Counsel notes that, to receive permission to file a successive petition under the Act, a

defendant must (1) identify an objective factor that impeded his or her ability to raise a specific

claim in the initial postconviction proceeding and (2) demonstrate that the claim not raised in the

initial proceeding so infected the trial that the resulting conviction or sentence violated due process.

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725 ILCS 5/122-1(f) (West 2020). Counsel notes that the failure to satisfy either prong of the

cause-and-prejudice test is a sufficient ground to deny leave to file a successive postconviction

petition (see id.; People v. Smith 2014 IL 115946, ¶ 37). As counsel further observes, we review

de novo the denial of leave to file a successive postconviction petition. People v. Bailey, 2017 IL

121450, ¶ 13. Counsel concludes that it would be frivolous to argue that defendant satisfied either

prong of the cause-and-prejudice test. We agree.

¶6 As for cause, defendant does not assert in his motion or proposed petition that he could not

have raised his ineffectiveness claim in his initial petition. Indeed, he could have raised the

ineffectiveness claim then because the pertinent facts and legal authority were available. As for

his constitutional sentencing claims, defendant notes that People v. Harris, 2018 IL 121932, and

People v. Holman, 2017 IL 120655, had not been decided when he filed his initial petition.

Nonetheless, these cases do not establish cause. Harris held that the eighth amendment protections

recognized in Miller do not apply to defendants 18 years old or older when they committed their

offenses. See Harris, 2018 IL 121932, ¶ 61. Defendant was 20 when he committed the offenses.

In any event, Harris’s basic premise—that Miller’s eighth amendment protections apply to

discretionary sentences like defendant’s—was repudiated in People v. Wilson, 2023 IL 127666,

¶ 42, which overruled Holman. As for defendant’s Miller-based proportionate penalties claim, our

supreme court has expressly held that Miller does not supply cause as to such a claim. See People

v. Clark, 2023 IL 127273, ¶ 67. Therefore, we agree with counsel that it would be frivolous to

argue that the trial court erred in holding that defendant did not satisfy the cause requirement for

filing a successive petition.

¶7 While defendant’s inability to establish cause is sufficient in itself to support the denial of

leave to file (see Smith 2014 IL 115946, ¶ 37), we also comment on the issue of prejudice. Counsel

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is correct that a defendant’s voluntary guilty plea waives all nonjurisdictional claims, including

constitutional ones. See People v. Jones, 2021 IL 126432, ¶ 20. The waiver encompasses claims

based on future legal developments (id. ¶ 21)—here, Miller and its progeny. None of the claims

in defendant’s proposed petition concern the voluntariness of his plea. Therefore, defendant has

waived all claims in the proposed petition and so cannot establish prejudice. Moreover, for the

same reasons defendant cannot establish cause concerning his eighth amendment claim, he also

cannot establish prejudice as to that claim.

¶8 In his response, defendant fails to address the application of the cause-and-prejudice test

to his proposed petition.

¶9 After examining the record, the motion to withdraw, the memorandum of law, and

defendant’s response, we agree with counsel that this appeal presents no issue of arguable merit.

Thus, we grant the motion to withdraw, and we affirm the judgment of the circuit court of Kane

County.

¶ 10 Affirmed.

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