People v. Hewitt

2025 IL App (1st) 231294

• Court: Appellate Court of Illinois
• Decided: September 16, 2025
• Docket: 1-23-1294
• Status: Published

Opinion

2025 IL App (1st) 231294

FIRST DISTRICT SECOND DIVISION September 16, 2025

No. 1-23-1294 _________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 94 CR 14946 ) SAM HEWITT, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge Presiding. __________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.

OPINION

¶1 Petitioner Sam Hewitt was sentenced to natural life, plus 30 years, for two first-degree

murders and an attempted third murder that he committed when he was 19 years old. More than a

quarter of a century later, he alleged in a postconviction petition that his sentence violates the

proportionate-penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).

Petitioner bases his claim on his status as an “emerging adult” who suffered from “severe mental

illness” at the time of his crimes. We hold that petitioner forfeited his claim by failing to raise it

at his sentencing. And in any event, a life sentence for a legal adult and the principal shooter in a

premeditated double murder is not arguably unconstitutional.

¶2 BACKGROUND

¶3 I

¶4 Petitioner’s convictions arise from a shooting on May 3, 1994. Petitioner was 19 years No. 1-23-1294

old and a member of the Mafia Insane Vice Lords gang. His brother had recently been shot and

paralyzed by the Gangster Disciples. Or at least petitioner blamed this rival gang. He vowed to

avenge his brother’s shooting, and indeed, by his own admission, he set out to kill as many

Gangster Disciples as he could.

¶5 To this end, petitioner dressed in Gangster Disciple colors and went to a basketball court

where they were known to play. Petitioner asked to join in. Not realizing that they were being

false flagged, the four Gangster Disciples on the court agreed, but they asked petitioner to wait

for the start of the next game in a few minutes. While he waited, or rather purported to wait, on a

court full of easy, unsuspecting targets, petitioner opened fire, attempting (again, by his own

admission) to kill everyone. George Goings and Naphtali Nunn were killed, and Quaran McKay

was injured. Jeremiah Washington escaped unscathed.

¶6 Multiple eyewitnesses, including Washington, identified petitioner as the lone shooter.

Petitioner confessed to the shooting after he was arrested. A jury convicted him of the murders of

Goings and Nunn and the attempted murder McKay and acquitted him of the attempted murder

of Washington.

¶7 II

¶8 A sentencing jury found petitioner eligible for the death penalty. The ensuing penalty-

phase hearing featured extensive evidence that bears on the proportionate-penalties claim that

petitioner would go on to raise, many years later, in his postconviction petition.

¶9 Assistant State’s Attorney (ASA) Catherine Hufford, who took petitioner’s handwritten

statement, reiterated what petitioner himself had said: he learned of his brother’s shooting while

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he was imprisoned for a drug conviction and vowed to kill Gangster Disciples in revenge when

released. Petitioner was paroled from his drug conviction on April 15, 1994, and carried out his

plan less than three weeks later.

¶ 10 Far from expressing remorse, petitioner “was almost bragging” about the shooting to

Detective Craig Cegielski when he was arrested. In Cook County Jail, petitioner told his fellow

gang member Anthony Walker that he shot some Gangster Disciples on a basketball court, in

retaliation for shooting his brother. Petitioner also told Walker about another incident, in which

he and a friend shot and killed two Gangster Disciples. Detective James Griffin investigated a

shooting at the location petitioner mentioned and found, as petitioner told Walker, that one of the

victims was shot in the face and that a .380-automatic handgun was (one of the weapons) used.

¶ 11 At the age of 19, petitioner already had a significant criminal history. As a juvenile, he

was adjudicated delinquent for theft, residential burglary, and attempted residential burglary. As

an adult, he was convicted of delivery of a controlled substance and unlawful use of a weapon by

a felon. He violated the probation he received for the latter offense. The State also introduced

evidence of other uncharged conduct, including breaking into a car, breaking into an apartment

to steal guns, and gang-related disorderly conduct.

¶ 12 And petitioner had an extensive history of disciplinary infractions while in custody. Betty

McQueen, the supervisor of the Illinois Department of Correction (IDOC) Youth Center Records

Unit, testified that petitioner arrived on September 22, 1989, to serve an eight-month sentence,

but his disciplinary infractions delayed his parole until July 23, 1992. McQueen testified to 16

disciplinary reports, out of a total of 100, filed against petitioner in those two and a half years.

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Among other things, petitioner threatened to kill a security officer.

¶ 13 In his few months at IDOC’s Dixon Correctional Center, between July 1993 and April

1994, petitioner accumulated more than 20 disciplinary infractions. Among them: threatening

officers, jamming the locks of his cell, damaging his cell door and other property, and ignoring

orders. The keeper of the records testified that, to his knowledge, petitioner was not on any

medication at the time.

¶ 14 Petitioner accumulated numerous, and often serious, disciplinary infractions in Cook

County Jail, where he was in custody for this offense between 1994 and 1996. Among other

persistent problems, he would set fire to his cell, rip out its light fixtures, jam its locks, and flood

his toilet. He injured, insulted, and threatened officers, trying to stab one of them with a shank

through the food tray chuckhole.

¶ 15 Petitioner’s paternal grandmother, Ester Higgins, raised petitioner from the time he was

four years old, when his mother abandoned him. Petitioner’s mother was later shot to death, and

so was his maternal grandmother. That said, Higgins testified that she raised petitioner as one of

her own, alongside her two sons, who were like brothers to him. And while petitioner’s father

was not a full-time presence, he was a part of petitioner’s life and did help to raise him. When

petitioner would do something wrong, Higgins said, his father would come by and sit him down

for a talk. Higgins insisted, however, that petitioner was “not a bad child,” although he was

constantly truant from school. Higgins never followed up on the school’s recommendation to

have petitioner evaluated by a psychiatrist.

¶ 16 The defense recalled McQueen to testify about the clinical psychiatric and psychological

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evaluations petitioner received in juvenile custody, during the summer of 1990, when he was 15

years old. Around that time, petitioner was placed under close supervision for threatening to kill

himself. His psychiatric evaluation gave him a prognosis of “guarded to poor” and recommended

therapy and medication. Petitioner was prescribed imipramine (an antidepressant) and Thorazine

(an antipsychotic), but he resisted taking them. He acted impulsively, with little thought of the

consequences; displayed poor judgment; and was prone to agitating others. The psychological

evaluation added that petitioner appeared intellectually limited and preoccupied with death, often

displayed confused or paranoid behavior, and had “difficulty staying in touch with reality.”

Petitioner was diagnosed with a conduct disorder, ADHD, and organic personality syndrome.

¶ 17 Petitioner’s key witness was Dr. Lawrence Heinrich, a forensic and clinical psychologist.

The ultimate point of Dr. Heinrich’s testimony was to establish that petitioner was under the

influence of an extreme mental or emotional disturbance when he committed the offenses—a

mitigating factor that would preclude the death penalty. Dr. Heinrich opined that this mitigating

factor was present. His reasons for this conclusion are also relevant to a proportionate-penalties

claim based, in part, on petitioner’s alleged mental illness.

¶ 18 First, Dr. Heinrich made three diagnoses based on the DSM-IV criteria. The first was an

Axis I diagnosis, meaning a mental illness that causes periodic, often short-term, disturbances in

one’s thinking process, such as a brief psychotic episode. Specifically, Dr. Heinrich diagnosed

petitioner with schizoaffective disorder, characterized by significant disturbances of thought and

mood that interfered with petitioner’s daily functioning and adaptive style and resulted in

exaggerated mood swings.

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¶ 19 On Axis II, Dr. Heinrich diagnosed petitioner with borderline intellectual ability, as his

IQ was between 70 and 80 and his math and reading skills were at the fifth- and third-grade

levels, respectively. He also diagnosed petitioner with a severe personality disorder, with

features of a borderline personality disorder and anti-social personality disorder. These Axis II

diagnoses reflect long-term, indeed permanent, personality disorders and cognitive limitations.

Someone with an Axis II personality disorder may function, but will have maladaptive ways of

coping with stress that interfere with personal relationships.

¶ 20 Second, Dr. Heinrich reached two related conclusions based on his review of petitioner’s

evaluations and disciplinary reports in IDOC. On the one hand, petitioner’s chronic disciplinary

problems in custody illustrated “his impulsiveness, his explosiveness, his inability at times to

control his behavior.” On the other hand, Dr. Heinrich found that petitioner’s behavior seemed to

improve when he was on psychotropic medications, a “diagnostically significant” finding. He

further noted that there was no indication that petitioner ever received medication or other

treatment outside of a custodial setting, which in his opinion “certainly would contribute to

problems that he is going to act out seriously and have adjustment difficulties.”

¶ 21 Third, Dr. Heinrich explained that petitioner’s exposure to violence may have impacted

his tolerance for violence and the likelihood that he would engage in it himself. In this context,

Dr. Heinrich noted that petitioner’s mother, maternal grandmother, and uncle were all murdered,

not to mention his brother’s shooting, which supplied the motive for these offenses.

¶ 22 Fourth, and less favorably for petitioner, Dr. Heinrich found evidence that petitioner

malingered, exaggerated his symptoms, and lied during the interview. Being manipulative, he

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noted, is a trait of borderline personality disorder. But Dr. Heinrich did not think that petitioner

was completely “faking it,” as he had received too many adverse consequences as a result of the

behaviors in question.

¶ 23 In rebuttal, the State called Dr. Paul Fauteck, the psychologist from Forensic Clinical

Services who evaluated petitioner’s fitness (and found him fit) before trial. Dr. Fauteck disagreed

with Dr. Heinrich in a number of respects. For one, he found no evidence of any mental disorder

or illness that would warrant an Axis I diagnosis. He also disagreed with Dr. Fauteck’s Axis II

diagnosis of schizoaffective disorder, and he did not think that petitioner suffered from any

major mood or affective disorder at all.

¶ 24 Dr. Fauteck did agree with the diagnosis of antisocial personality disorder. But as he

explained, this is not a true mental illness or disturbance; rather, it is a long-term pattern of

maladjustment that is common among criminals, being found in an estimated 60 to 80% of

incarcerated males. It cannot be treated with medication, though heavily sedating medications,

such as Thorazine, are sometimes used in lieu of shackles to control violent behavior. All in all,

Dr. Fauteck disagreed with Dr. Heinrich’s conclusion that a mitigating factor was present, as he

did not believe that petitioner suffered from an extreme mental or emotional disturbance when he

committed these offenses.

¶ 25 The jury was instructed on that particular mitigating factor. It was further instructed that a

mitigating factor could be “any other reason supported by the evidence why [petitioner] should

not be sentenced to death,” whether or not it was specifically included in the instructions. The

jury did not unanimously find “that there are no mitigating factors sufficient to preclude a death

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sentence.” In other words, the jury rejected the death penalty—for unspecified reasons, given the

general nature of the sentencing verdict.

¶ 26 Pursuant to the multiple-murder statute (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1992)), the

trial court thus sentenced petitioner to mandatory natural life for the double murder, plus a

consecutive 30-year term for attempted murder.

¶ 27 At the sentencing hearing with the judge, defense counsel said, “[S]ince this was

classified as a multiple murder *** we would be challenging the statute’s constitutionality

without argument. I think the Supreme Court has already decided that.” Counsel did not specify

a basis for this purported constitutional challenge to the multiple-murder statute, and at no point

was a proportionate-penalties challenge explicitly raised in the trial court. Counsel did not file a

motion to reconsider sentence. Petitioner’s sentence was not challenged on direct appeal. People

v. Hewitt, No. 1-96-3528 (1998) (unpublished order under Illinois Supreme Court Rule 23).

¶ 28 III

¶ 29 On January 4, 2023, nearly 25 years after his direct appeal was decided, petitioner filed

what appears to be a pre-printed form document captioned, “Motion for leave to file successive

post-conviction petition.” But as the State concedes, this was, in fact, petitioner’s initial

postconviction petition. Petitioner raised a single issue: an as-applied challenge to his mandatory

life sentence under the proportionate penalties clause.

¶ 30 The crux of his claim is that, in sentencing him to mandatory natural life, the trial court

was precluded from considering his “youthful age of 19,” the “transient qualities” that age

entailed, his “emotional shock during childhood,” and his “rehabilitative potential.” Petitioner

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further alleged that Miller v. Alabama, 567 U.S. 460 (2012), established cause for his failure to

raise this claim earlier. As support for his claim, petitioner attached various scholarly papers,

newspaper articles, and other publications addressing the general scientific and policy issues

raised by his claim.

¶ 31 Petitioner also attached his own affidavit, in which he attested to the circumstances and

challenges of his upbringing. Born prematurely to a young, drug-addicted mother, who was in

and out of prison, and an unemployed father, petitioner was all but abandoned by his parents

from the very start. After being severely beaten—by whom, he did not say—he was sent to live

with his grandmother at the age of four. “[T]hat should have helped,” he admitted, but he was

“damaged” and felt “alone,” living without his parents or siblings. These feelings led him to “act

out” at home and at school, and those disciplinary problems soon escalated to criminal conduct,

leading to periods of incarceration.

¶ 32 While in custody, he has “been on a few different meds.” In 1993, he was shot by

Chicago police. As he concluded,

“I’ve been trying to change and break the cycle. I got no love, no guidance, no education,

nothing from my parents. I found it all while in jail. I found it within myself. I’ve grown

up a lot [and] I understand my errors. And I know that I am a better person now than the

person I was 28 years ago.”

¶ 33 The circuit court treated the filing as a successive petition and denied leave to file. Citing

People v. Dorsey, 2021 IL 123010, the circuit court rejected the argument that Miller provided

cause. The circuit court also found that petitioner did not establish prejudice, in part because he

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failed to connect the science on emerging adults to his own particular circumstances and in part

because he failed to show that his youth and its attendant qualities were not considered at his

original sentencing hearing. Lastly, on the merits of petitioner’s claim, the circuit court stressed

that he was the principal shooter in a premeditated double murder.

¶ 34 ANALYSIS

¶ 35 Petitioner contends that his mandatory life sentence arguably violates the proportionate

penalties clause because it “does not account for his status as an emerging adult with severe

mental illness.” As noted, he draws inspiration from Miller, 567 U.S. 460.

¶ 36 One preliminary point. The State does not dispute that petitioner’s filing is, in fact, an

initial postconviction petition. The circuit court, unaware that petitioner mislabeled his belated

petition, improperly applied the cause-and-prejudice test. The remedy on appeal is to apply the

legal standard for a summary dismissal of an initial petition, without remanding to the circuit

court for a first-stage ruling. People v. Wilson, 2014 IL App (1st) 113570, ¶ 41.

¶ 37 We thus conduct our own de novo review of the petition and ask whether it alleges an

arguable constitutional claim. People v. Williams, 2024 IL 127304, ¶¶ 15-17. Forfeiture is a

proper basis for dismissal at the first stage. People v. Johnson, 2021 IL 125738, ¶ 48; People v.

Blair, 215 Ill. 2d 427, 442-45 (2005) (forfeited claims are, by definition, frivolous or patently

without merit under postconviction statute and warrant summary dismissal). We may affirm a

summary dismissal on any basis in the record. People v. Knapp, 2019 IL App (2d) 160162, ¶ 37.

¶ 38 I

¶ 39 The State says petitioner forfeited his proportionate-penalties challenge because he did

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not raise it on direct appeal. That is undoubtedly true. But while the State did not argue as much,

it is equally true that petitioner forfeited this challenge by failing to raise it at trial. The

“essential legal tools,” not to mention a detailed factual record, were in hand at sentencing.

People v. Moore, 2023 IL 126461, ¶ 42. He needed to raise his as-applied challenge then. Simply

put, petitioner forfeited this claim twice over—at trial by failing to raise it, and on direct appeal,

when he could have raised it by way of plain error or ineffective assistance of trial counsel.

¶ 40 This should not be a controversial position. The forfeiture doctrine has existed for ages.

But petitioner argues that forfeiture is forgiven in the context of claims like the one here—

namely, a proportionate-penalties claim with Miller-inspired arguments—and thus it may be

raised as a freestanding claim for the first time in a postconviction petition. It is true that some

decisions from this court have given that impression. But that impression is mistaken; there is

nothing magical about a proportionate-penalties claim, even if inspired by Miller, that forgives

forfeiture. And believing so leads to bad results for defendants and the justice system as a whole.

¶ 41 A

¶ 42 Start with the most basic of propositions: a defendant forfeits a claim, even a

constitutional claim, if he fails to raise it at trial. People v. Thompson, 2015 IL 118151, ¶ 39;

People v. Hillier, 237 Ill. 2d 539, 547 (2010) (defendant’s fifth amendment challenge to his sex-

offender evaluation was not raised at trial and was thus forfeited); People v. Ivanchuk, 2025 IL

App (4th) 241230, ¶ 42 (defendant forfeited fourth-amendment challenge to vehicle stop by

failing to raise it at trial).

¶ 43 There are a few exceptions to forfeiture. The most common are judgments that are void,

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either for lack of subject-matter or personal jurisdiction or because they are based on a facially

invalid statute. These judgments may be challenged at any time. See Thompson, 2015 IL 118151,

¶¶ 31-32. The as-applied challenge petitioner raises here falls under none of those exceptions.

¶ 44 Notably here, there is a “very narrow exception” to forfeiture “for an as-applied Miller

claim for which the record is sufficiently developed for appellate review.” People v. Holman,

2017 IL 120655, ¶ 32, overruled on other grounds by People v. Wilson, 2023 IL 127666, ¶ 42;

see People v. Harris, 2018 IL 121932, ¶ 44.

¶ 45 But a Miller claim is not just any claim that mentions that Supreme Court decision. Miller

applies in only one specific context—namely, to (1) a juvenile who challenges, (2) under the

eighth amendment, (3) a mandatory sentence (4) of de facto life, meaning a sentence that

requires him to serve over 40 years in prison before any chance of parole.

¶ 46 Change any of those criteria—the defendant was 18 or older at the time of the offense;

the claim is not under the eighth amendment; the sentence was not mandatory; the defendant has

the chance for parole within 40 years—and it is not a Miller claim. See, e.g., Harris, 2018 IL

121932, ¶¶ 44-45 (defendant who was 18 at time of offense could not assert Miller claim);

Dorsey, 2021 IL 123010, ¶ 74 (Miller limited to claims under eighth amendment, not

proportionate-penalties clause); Dorsey, 2021 IL 123010, ¶¶ 50, 62 (76-year sentence was not

de facto life, and Miller thus did not apply, as day-for-day credit made defendant eligible for

parole within 38 years); Wilson, 2023 IL 127666, ¶¶ 39-42 (Miller does not apply to

discretionary sentences of any length).

¶ 47 Understood as such, this exception for true Miller claims makes sense in that many of the

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reasons for invoking forfeiture fall by the wayside in that narrow context. One of the principal

purposes of forfeiture is to incentivize the creation of a factual record at trial sufficient for

appellate review. But a true Miller claim does not require that record.

¶ 48 Appellate review of a true Miller claim consists merely of determining the defendant’s

age at the time of the offense, whether the sentence was mandatory or discretionary, the length of

the sentence, and—most notably here—whether the sentencing court appropriately considered

the defendant’s youth and attendant characteristics. Whether there is an “adequate” or

inadequate” record on appeal is literally part of the analysis. If the record is undeveloped, you

have your answer: the court did not adequately consider the relevant youth-based factors, so a

remand is necessary to consider them. People v. Davis, 2014 IL 115595, ¶ 43; see Harris, 2018

IL 121932, ¶ 43 (explaining Holman’s exception for true Miller claims: “All of the facts and

circumstances necessary to decide the defendant’s Miller claim were already in the record.”).

¶ 49 A proportionate-penalties claim is not, and never has been, a Miller claim, if for no other

reason because it is not based on the eighth amendment. See Moore, 2023 IL 126461, ¶ 42;

People v. Robert Clark, 2023 IL 127273, ¶ 61; Dorsey, 2021 IL 123010, ¶ 74. A sentence

violates the proportionate-penalties clause in one of two ways: it violates the identical-elements

test (not relevant here) or the sentence “shock[s] the moral sense of the community” in some

way. People v. Sharpe, 216 Ill. 2d 481, 503-04, 517 (2005). A sentence may shock the

community’s moral sense because the defendant’s relatively minor culpability does not match

the draconian sentence he received. See People v. Leon Miller, 202 Ill. 2d 328 (2002). A court

might consider the defendant’s youth and immaturity along with his minor participation in the

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crime in finding a resulting sentence shocking to the moral sense. See People v. House, 2021 IL

125124, ¶ 9.

¶ 50 Or a young adult defendant might argue, akin to a Miller eighth-amendment claim, that

the sentencing court failed to appropriately consider the defendant’s youth and its attendant

characteristics. A true Miller claim it is not (Dorsey, 2021 IL 123010, ¶ 74), but there is no

reason why this argument could not, in theory, establish that the sentence shocks the conscience

in the appropriate case. See Robert Clark, 2023 IL 127273, ¶ 87). The Miller decision, in that

instance, might provide “ ‘helpful support.’ ” Dorsey, 2021 IL 123010, ¶ 74 (quoting People v.

LaPointe, 2018 IL App (2d) 160903, ¶ 59).

¶ 51 These arguments could even be combined—the defendant’s youth and his lack of

meaningful participation in the offense. And there might be other arguments. But they are just

that—arguments. The claim remains the same: a proportionate-penalties claim. It does not fall

within the “very narrow exception” to forfeiture for true Miller claims. So it can be forfeited, just

like any other claim, constitutional or otherwise. Thompson, 2015 IL 118151, ¶ 39.

¶ 52 B

¶ 53 The cases cited by petitioner, suggesting that an undeveloped proportionate-penalties

claim based on Miller is exempt from forfeiture and may be raised for the first time on

postconviction review, stem initially from our supreme court’s decision in Harris, 2018 IL

121932. We do not think the supreme court exempted the defendant’s claim there from

forfeiture, but we understand why some might have so read that decision.

¶ 54 The defendant there, Harris, did not argue at trial that his sentence violated the

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proportionate-penalties clause. Id. ¶ 40. But when raised on appeal for the first time, the

appellate court found that it did and vacated his 76-year sentence. Id. ¶ 1. In the supreme court,

the State argued that Harris forfeited his claim by failing to raise it at trial. Id. ¶ 35. Harris tried

to fit within the narrow Holman exception to forfeiture for as-applied Miller challenges. Id. ¶ 42.

¶ 55 The supreme court held that Holman’s narrow exception to forfeiture did not apply for

two reasons. For one, Harris was 18 at the time of the offense, so Miller simply did not apply in

any event. Id. ¶ 45. And second, true Miller claims do not require a developed factual record (as

we have discussed above). Id. ¶ 44. In contrast, a proportionate-penalties claim does, yet the

record there showed “only basic information about [Harris], primarily from the presentence

investigation report.” An “evidentiary hearing was not held, and the trial court did not make any

findings on the critical facts needed to determine whether Miller applies to [Harris] as an adult.”

Id. ¶ 46. “Accordingly,” wrote the court, “defendant’s as-applied challenge is premature.” Id.

¶ 56 The supreme court reversed the appellate court’s vacatur of the sentence, thus reimposing

the sentence. Id. ¶ 63. The court declined to remand the matter to the circuit court to develop a

factual record for the as-applied proportionate-penalties claim, finding it “more appropriately

raised” in a collateral proceeding like a postconviction petition. Id. ¶ 48.

¶ 57 On the one hand, that sounds like a holding that Harris’s proportionate-penalties claim

was forfeited. After all, the State so argued, Harris tried to fit within the exception to forfeiture

for true Miller claims, and the supreme court held that his claim did not fit within that exception.

If the claim does not fit within the exception to forfeiture, does it not follow that it’s forfeited?

But the supreme court never said so explicitly, and if the claim were forfeited, there would have

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been nothing left to say.

¶ 58 Instead, the court deemed the claim “premature” (id. ¶ 46) and then considered whether

to remand the matter to the circuit court for an evidentiary hearing. True, the court declined to do

so, finding it “more appropriate[ ]” for a postconviction petition (id. ¶ 48)—but if the claim had

been forfeited, the option of a remand to develop the record would have been out of the question.

An attempt at collateral review would not have been “more appropriate[ ]”—it would have been

the only remaining recourse for Harris.

¶ 59 In any event, as petitioner notes on appeal, some appellate decisions have seized on the

“premature” language in Harris and, rather than finding forfeiture, have merely noted that the

record below is undeveloped, thus leaving postconviction relief as the more appropriate recourse.

¶ 60 For example, in People v. Marquad Harris, 2020 IL App (5th) 160454, ¶ 1, the defendant

was convicted of first-degree murder and sentenced to 51 years. He did not raise a constitutional

challenge at sentencing or in a post-sentencing motion. Id. ¶ 72. On appeal, he raised a

proportionate-penalties challenge based on Miller. Id. ¶ 67.

¶ 61 This court, relying on the supreme court’s Harris decision, found “no evidentiary record

to support defendant’s constitutional claim” and thus “decline[d] to consider defendant’s as-

applied constitutional challenge to his sentence.” Id. ¶ 72. But “ ‘[c]onsistent with’ ” our supreme

court’s Harris decision, the court added that “ ‘we do not intend for our disposition to preclude

defendant from advancing his claim through other available proceedings.’ ” Id. (quoting People

v. Figueroa, 2020 IL App (2d) 160650, ¶ 89).

¶ 62 One would think that the correct outcome to that case would have been to acknowledge

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that the matter was forfeited for failure to raise the proportionate-penalties claim at trial. And

because it was not raised on appeal under the guise of plain error or ineffective assistance of trial

counsel, there would be no basis to consider the argument—not because of an undeveloped trial

record, but because it was forfeited. True, a recourse to postconviction proceedings would still be

appropriate, but not to assert a freestanding proportionate-penalties claim—rather, to assert an

ineffectiveness claim against both trial and appellate counsel for failing to raise the

proportionate-penalties claim at trial or on direct appeal. See Williams, 2024 IL 127304, ¶ 20

(noting that postconviction petitioner “can avoid the procedural bar of forfeiture by casting his

claims as ineffective assistance of [trial and/or] appellate counsel”).

¶ 63 Regardless, another court followed Marquad Harris and reached the same result. In

People v. Ford, 2021 IL App (5th) 170259, ¶¶ 1, 27, 29, cited here by petitioner, the defendant

received a 55-year sentence for murder but did not raise a constitutional challenge to his sentence

at any time, even in a post-sentencing motion. Without mentioning forfeiture, the appellate court,

following the lead of the supreme court Harris decision, noted that “the record does not contain

evidence or findings from the trial court as to how the evolving science on juvenile maturity and

brain development applied to the defendant’s specific facts and circumstances.” Thus, the

appellate court did not “consider the defendant’s as-applied challenge because it is premature.”

Id. ¶ 29. The court added that it did not intend “ ‘ “to preclude defendant from advancing his

claim through other available proceedings.” ’ ” Id. (quoting Marquad Harris, 2020 IL App (5th)

160454, ¶ 72, quoting Figueroa, 2020 IL App (2d) 160650, ¶ 89).

¶ 64 Other cases cited by petitioner reached like conclusions. See People v. Berry, 2023 IL

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App (4th) 210675-U, ¶ 119 (based on supreme court’s Harris decision, declining to consider

defendant’s Miller-inspired proportionate-penalties argument raised for first time on appeal not

because it was forfeited but because “no evidentiary hearing has been held on this claim, and a

trial court has not made any findings of fact with regard to defendant’s specific circumstances”).

¶ 65 Another case cited by petitioner deserves special mention. In People v. Herring, 2022 IL

App (1st) 210355, ¶¶ 8-9, 37, the petitioner, age 19 at the time of the offenses, was sentenced to

mandatory natural life for a double murder. He raised an as-applied proportionate-penalties

challenge inspired by Miller, for the first time, in his initial postconviction petition. Id. ¶ 36. The

State argued that he forfeited his claim by failing to raise it at sentencing. Id. The appellate court

held that the claim was not forfeited, since it would have been “futile” to challenge a

“mandatory” penalty at his sentencing hearing. Id. ¶ 37.

¶ 66 We respectfully but firmly disagree with the majority opinion in Herring. The fact that a

sentence is mandatory under a statute does not make a constitutional challenge futile; it means

that a constitutional challenge is the defendant’s only option. Herring could not have asked the

trial court to impose a term-of-years sentence as a matter of discretion, but he surely could have

asked the court to find the mandatory sentence unconstitutional under the proportionate-penalties

clause. Look no further than Leon Miller, 202 Ill. 2d at 331-32, 343, where the defendant did just

that, successfully, at sentencing, and the supreme court affirmed.

¶ 67 We understand that our supreme court, in Harris, focused largely on the absence of a

developed record, possibly leading these courts to believe that the problem was not forfeiture but

merely an incomplete trial record. But we must respectfully and reluctantly conclude that each of

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these decisions—Marquad Harris, 2020 IL App (5th) 160454; Ford, 2021 IL App (5th) 170259;

Berry, 2023 IL App (4th) 210675-U; and Herring, 2022 IL App (1st) 210355—should have

directly tackled the issue of forfeiture and erred in failing to do so.

¶ 68 These decisions would leave a defendant with the impression that he can fail to raise a

proportionate-penalties challenge to his sentence at trial, raise it for the first time on appeal as a

freestanding claim (not by way of plain error or ineffective assistance), and if the record is

developed, the appellate court will hear it; if not, he can go to postconviction proceedings and

raise the freestanding claim there. Or even better, as in Herring, he could avoid all mention of it

at trial or on direct appeal and raise the proportionate-penalties claim as a freestanding claim, for

the first time, in a postconviction petition.

¶ 69 That cannot be, and is not, the law. First, as discussed, these decisions may have overread

the supreme court decision in Harris, which could be fairly interpreted as a forfeiture decision

itself. But second and more importantly, starting with a line of decisions beginning in 2021, our

supreme court has made it clear that forfeiture principles apply to proportionate-penalties claims,

even if inspired by Miller. These decisions arose in the context of successive postconviction

petitions, where a petitioner must satisfy the familiar cause-and-prejudice standard.

¶ 70 The first was Dorsey, 2021 IL 123010, ¶ 74, where the supreme court held that Miller did

not supply “cause” to excuse the failure to raise a Miller-inspired proportionate-penalties claim

earlier. The court reasoned that “Illinois courts have long recognized the differences between

persons of mature age and those who are minors for purposes of sentencing,” and thus “Miller’s

unavailability prior to 2012 at best deprived defendant of ‘some helpful support’ for his state

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constitutional law claim, which is insufficient to establish ‘cause.’ ” Id. (quoting LaPointe, 2018

IL App (2d) 160903, ¶ 59).

¶ 71 In rapidly evolving jurisprudence following the 2012 Miller decision, with defendants of

various ages (under 18 or 18 to 21) attempting to cite Miller for various constitutional claims

(eighth amendment or proportionate-penalties) in any number of contexts (direct appeal, initial

postconviction petition, successive postconviction petition, section 2-1401 petitions), Dorsey at

least cleared some of the weeds: Miller did not create a new claim under the proportionate-

penalties clause. That claim always existed; a defendant, whether a juvenile or young adult, has

always been able to raise a proportionate-penalties claim based on the sentencing court’s failure

to appropriately consider the defendant’s youth and its attendant characteristics.

¶ 72 That ruling was nothing more than a forfeiture ruling. The “cause” element of the cause-

and-prejudice test is a rule of forfeiture—a reason to excuse a “failure to bring the claim” that

would otherwise result in forfeiture. 725 ILCS 5/122-1(f), 122-3 (West 2022); People v. Lusby,

2020 IL 124046, ¶ 27 (“cause” requirement in statute is rule of forfeiture).

¶ 73 Other decisions reiterated that Miller did not create a new proportionate-penalties claim

immune from forfeiture. See Robert Clark, 2023 IL 127273, ¶ 61 (“long before Miller, Illinois

law recognized the special status of juvenile offenders for purposes of applying the principles

under the proportionate penalties clause”); Moore, 2023 IL 126461, ¶ 42 (“As Miller did not

change the law applicable to young adults, it does not provide cause for the proportionate

penalties challenges advanced in [defendants’] proposed successive postconviction petitions.”).

¶ 74 True, Dorsey and its progeny concern successive postconviction petitions, not direct

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appeals or initial petitions. But there is no reason to limit those holdings to that context. The

principle of forfeiture begins at the trial stage and continues throughout. Once Dorsey clarified

that Miller did not create a new proportionate-penalties claim, there was no longer any reason to

believe that proportionate-penalties claims inspired by Miller should be treated differently than

any other constitutional claim—they may be forfeited.

¶ 75 C

¶ 76 The application of forfeiture may seem harsh, but it creates the right incentives, not only

for judicial economy but to induce the parties to seek their remedies in the best possible tribunal.

“ ‘[R]ules of procedure should be designed to induce litigants to present their contentions to the

right tribunal at the right time.’ ” Massaro v. United States, 538 U.S. 500, 504 (2003) (quoting

Guinan v. United States, 6 F.3d 468, 474 (7th Cir. 1993) (Easterbrook, J., concurring)).

¶ 77 For an as-applied challenge that requires “factual development,” “the trial court is the

most appropriate tribunal” in which to raise it. Thompson, 2015 IL 118151, ¶ 38; see Holman,

2017 IL 120655, ¶ 32 (“Thompson instructs that a defendant must present an as-applied

constitutional challenge to the trial court”). That is true, of course, of any sentencing argument,

constitutional or otherwise, which is why it is “well settled” that to avoid forfeiture, sentencing

challenges in general must be raised at sentencing. People v. Clark, 2024 IL 127838, ¶ 69;

People v. Fort, 2017 IL 118966, ¶ 18.

¶ 78 There are at least two key reasons why a sentencing hearing is the ideal forum—and a

decidedly better forum than a postconviction petition—for raising an as-applied challenge. First,

the defendant already has a lawyer at sentencing who can argue his claim (free of forfeiture) and

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develop a factual record to support it. In a postconviction petition, he must go it alone at the first

stage and earn back the lawyer he once had by showing that his claim has arguable merit.

¶ 79 To a prisoner with no lawyer, limited resources, and often little schooling, that is no small

task, even at the first stage of an initial postconviction petition, where he need only establish the

“gist” of a constitutional claim. The petitioner must plead his claim, avoid default, and “alleg[e]

facts about himself” that are salient to a developmental assessment and, in turn, allege a legal

determination about his culpability in light of his age and maturity. Williams, 2024 IL 127304,

¶¶ 34-35. Said differently, “[a]n emerging adult postconviction petitioner who simply cites his

age at the time of the offense and the evolving science on juvenile maturity and brain

development does not state the gist of an as-applied claim that a mandatory life sentence violates

the proportionate penalties clause of the Illinois Constitution.” Id. ¶ 31. Will an unschooled

prisoner understand that? If he doesn’t, his claim will die before he ever gets a lawyer.

¶ 80 Second, if the pro se petitioner manages to clear these hurdles and receives appointed

counsel, the record that his lawyer will be able to build is almost guaranteed to be inferior to the

record that could have been built at sentencing. This is especially true for a young adult, whose

claim, in a nutshell, is that he may be an adult, but he is functionally still a child, and his crime,

in no small measure, is the product of this transient immaturity.

¶ 81 This argument is best made, and evaluated, while the young adult is still before the court

with the experts who can evaluate him—in other words, at sentencing. In a collateral proceeding,

the assessment must be made retrospectively, years—often many years—later. In the intervening

years, the young adult will have matured to whatever degree. The retrospective determination

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will thus be fraught and uncertain at best.

¶ 82 That does not serve the defendant’s interest in relief or the judiciary’s interest in reliable

decision-making. In short, there is no good reason to postpone an as-applied challenge until

collateral review. A postconviction petition is generally a defendant’s last remaining hope for

raising a forfeited challenge, not an ideal forum for raising it in the first instance.

¶ 83 A sensible forfeiture rule will incentivize claimants to avail themselves of the ideal

forum. Massaro, 538 U.S. at 504. The law must be clear on the question of forfeiture so that trial

attorneys will understand the critical importance of raising the claim at sentencing, that no

special rules will apply for a proportionate-penalties claim that invokes the Miller decision.

¶ 84 Whether that proportionate-penalties claim is made immediately in response to a

mandatory sentence that leaves the court with no discretion (see Leon Miller, 202 Ill. 2d 328) or

in a post-sentencing motion after the court imposes a lengthy sentence, the message must be

clear and consistent: the time to raise this challenge is at sentencing, where the record can best be

made and the defendant’s argument can be considered in its best light.

¶ 85 D

¶ 86 Here, petitioner did not raise his as-applied challenge at sentencing. (Counsel’s bare

assertion that “we would be challenging the [multiple-murder] statute’s constitutionality without

argument” does not suffice.) Notably, in Moore, 2023 IL 126461, ¶ 42, “[t]he evidence and

arguments raised at the sentencing hearings *** show the parties knew Illinois law recognized

the special status of young adults, especially those subject to adverse influences, for purposes of

applying the principles of the proportionate penalties clause.” The murders in Moore took place

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in 1997 (id. ¶¶ 5, 20), so the case is of a similar vintage to this case, with murders in 1994.

Petitioner’s trial counsel should have been alert to the possibility of a constitutional challenge

and should have raised it at sentencing. Counsel failed to do so, resulting in forfeiture.

¶ 87 II

¶ 88 We acknowledge the confusion in the case law might have led petitioner to believe that,

in his initial postconviction petition below, he could raise a freestanding, as-applied challenge to

his sentence under the proportionate-penalties clause. To be clear, that is incorrect; his claim is

forfeited. And thus the only way he could have preserved his claim in his initial postconviction

petition is to allege ineffective assistance of trial and appellate counsel for failing to raise this

claim at trial and on direct appeal. See Williams, 2024 IL 127304, ¶ 20 (postconviction petitioner

who failed to raise proportionate-penalties claim at trial or on direct appeal “can avoid the

procedural bar of forfeiture by casting his claims as ineffective assistance of [trial and/or]

appellate counsel”). Here, petitioner obviously did not allege ineffectiveness.

¶ 89 But given the confusion in the case law, it is in the interests of justice to explain, briefly,

why petitioner’s proportionate-penalties claim would fail, even were it not forfeited. We are able

to do so because, ironically enough, though counsel at sentencing never raised a constitutional

challenge, counsel did develop an incredibly detailed factual record to avoid the death penalty.

¶ 90 Though he did not take the additional step of challenging his mandatory life sentence as a

constitutional violation, he nevertheless developed a record that, we feel safe in concluding,

would have been functionally identical to one created for a proportionate-penalties challenge. As

we discussed earlier, there was extensive, albeit contested, evidence of petitioner’s alleged

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mental illnesses. Higgins spoke to the challenges and adverse influences petitioner faced

growing up. Dr. Heinrich’s discussion of his disciplinary records spoke explicitly to “his

impulsiveness” in his mid-to-late teenage years. And Dr. Heinrich’s analysis of the efficacy of

treatment in prison, though not offered for quite this purpose, had implications for his

rehabilitative prospects.

¶ 91 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. I, § 11. A sentence violates this provision if it is

“ ‘ “cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of

the community.” ’ ” Williams, 2024 IL 127304, ¶ 24 (quoting People v. Hilliard, 2023 IL

128186, ¶ 20, quoting Leon Miller, 202 Ill. 2d at 338). The proportionate-penalties clause

recognizes that the community’s moral sense “ ‘ “evolves” ’ ” over time, as a function of our

evolving “ ‘ “concepts of elemental decency and fairness.” ’ ” Id. (quoting Hilliard, 2023 IL

128186, ¶ 20, quoting Leon Miller, 202 Ill. 2d at 339).

¶ 92 The parties both assume that a mandatory life sentence is essential to the kind of claim

that petitioner raises here under the proportionate-penalties clause. The State is thus eager to

insist that his life sentence was discretionary, on the ground that the jury could have imposed the

death penalty instead.

¶ 93 That premise is simply wrong. Proportionate-penalties claims have never been limited to

mandatory sentences; they apply equally to discretionary sentences. Nor are they limited to life

sentences. Indeed, “[a] defendant may challenge a sentence of any length” under the

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proportionate-penalties clause. People v. Spencer, 2025 IL 130015, ¶ 43 (young adult could raise

as-applied challenge to term of years that was not de facto life sentence); Hilliard, 2023 IL

128186, ¶ 29. If the challenged sentence does not need to be a life sentence at all, it certainly

does not need to be a mandatory life sentence.

¶ 94 Again, the premise of the parties’ shared misunderstanding is that a proportionate-

penalties claims transforms into some new claim when it is inspired by Miller. That is not the

case. Such a claim might bootstrap the reasoning and the science from Miller, but it cannot

bootstrap the law of Miller. Once more: “Miller did not change the law applicable to young

adults.” Moore, 2023 IL 126461, ¶ 42. Which means there is no special kind of proportionate-

penalties claim, modeled on the law of Miller, that is uniquely available when a mandatory life

sentence is imposed on a young adult. And to come full circle, that is why Miller does not

provide cause to raise a proportionate-penalties claim in a successive, post-Miller, petition. Id.

¶ 95 Simply put, after Miller, a young adult’s proportionate-penalties claim is the same as it

has always been. The basis for the claim is not the trial court’s lack of discretion under a

sentencing statute. That is only the case for an actual Miller claim, raised by a juvenile, under the

eighth amendment. Under the proportionate-penalties clause, the challenge, as always, is to the

length of the sentence itself. And the claim, as always, is that the sentence is grossly

disproportionate to the defendant’s culpability under the circumstances of that particular case—

so much so that, under prevailing standards of decency and fairness, the sentence must be

deemed unconscionable.

¶ 96 Here, petitioner’s sentence was not arguably unconscionable or unconstitutional. Briefly,

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his claim falls on the wrong side of every significant line the law has drawn in this area. In Leon

Miller, 202 Ill. 2d at 332, for example, the 15-year-old defendant was merely a “passive” lookout

who never touched a gun and had less than a minute to comprehend the unfolding events.

Petitioner, in contrast, was a legal adult and the principal, indeed the sole, shooter. See Hilliard,

2023 IL 128186, ¶ 34 (Leon Miller “readily distinguishable” from young adult who made

“deliberate choice” to shoot victim and “acted alone.”)

¶ 97 Nor was this “a botched robbery [that] turn[ed] into a killing,” as in (both consolidated

cases in) Miller, 567 U.S. at 473. An impetuous late-teenage boy, or someone who is mentally or

cognitively impaired, might fail to foresee just how easily a robbery or other such crime can

spiral into an unplanned killing. But the double murder and the attempted third murder in this

case were anything but unplanned. They were premeditated.

¶ 98 Petitioner was incarcerated when he learned that his brother was shot by some Gangster

Disciples, and he immediately vowed to kill as many rival gang members as possible in revenge.

Petitioner thought up a plan, clearly calculated to inflict maximum damage, and coldly carried it

out after weeks of premeditation. Shortly after his release, he went to a basketball court, dressed

in Gangster Disciples colors, where members of the gang were known to play. The unsuspecting

Gangster Disciples accepted him into their midst and continued their game. Having successfully

false-flagged his targets, petitioner ambushed them while they were preoccupied and defenseless.

¶ 99 Unlike the case of an accomplice who gets roped into unfolding events, or a robbery gone

bad, petitioner’s forethought is evident in his crimes. His tactical plan to kill as many Gangster

Disciples as possible, weeks if not more in the making, belies any claim that his crimes were the

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product of impetuous youth or delusional mental illness. He knew what he was doing and why.

Whatever else might be said about his mentality and development at the time, in this particular

instance, it is clear that petitioner was in touch with reality and his own murderous intent. He

may have been a young adult, and a troubled, maladjusted one at that, but there is all too much

about his crimes that these facts fail to explain.

¶ 100 There is more to be said, in the small, about the shortcomings of petitioner’s claim. But

we will leave the matter at that. Petitioner’s claim is forfeited, and in any event, a life sentence

for a premeditated double murder committed by a legal adult is not arguably unconstitutional.

Petitioner’s as-applied proportionate-penalties claim is subject to summary dismissal.

¶ 101 CONCLUSION

¶ 102 The judgment of the circuit court is affirmed.

¶ 103 Affirmed.

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People v. Hewitt, 2025 IL App (1st) 231294

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 94-CR- 14946; the Hon. Stanley J. Sacks, Judge, presiding.

James E. Chadd, Douglas R. Hoff, and Deepa Punjabi, of State Attorneys Appellate Defender’s Office, of Chicago, for appellant. for Appellant:

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Attorneys Abraham, Brian K. Hodes, and Margaret M. Smith, Assistant for State’s Attorneys, of counsel), for the People. Appellee:

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