People v. Howard

2023 IL App (1st) 220483-U

• Court: Appellate Court of Illinois
• Decided: May 30, 2023
• Docket: 1-22-0483
• Status: Unpublished

Opinion

2023 IL App (1st) 220483-U FIRST DISTRICT, FIRST DIVISION May 30, 2023

No. 1-22-0483

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. 09 CR 08815 ) D’ANDRE HOWARD, ) Honorable ) Marc W. Martin, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________

JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Lavin concurred in the judgment. Justice Pucinski specially concurred.

ORDER

¶1 Held: The circuit court properly denied defendant’s motion for leave to file a successive postconviction petition where he failed to establish cause for failing to bring his proportionate penalties claim in his initial postconviction petition.

¶2 Following a jury trial, defendant D’Andre Howard was convicted of three counts of first

degree murder and one count of attempt first degree murder. Defendant was sentenced to three

concurrent natural life sentences for first degree murder consecutive to 60 years’ imprisonment

for attempt first degree murder. Defendant’s convictions were affirmed on direct appeal. People

v. Howard, 2018 IL App (1st) 142401-U, ¶ 2. The denial of defendant’s initial postconviction No. 1-22-0483

petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018))

was also affirmed on appeal. People v. Howard, 2021 IL App (1st) 191329-U, ¶ 2.

¶3 Defendant sought leave to file a successive postconviction petition, challenging his

sentences under the eighth amendment to the United States Constitution (U.S. Const. Amend.

VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. 1, §

11). The circuit court denied defendant’s motion for leave to file a successive postconviction

petition. We affirm.

¶4 BACKGROUND

¶5 Defendant was convicted of first degree murder of Alan Engelhardt, Laura Engelhardt,

and Marlene Gacek, and attempt first degree murder of Shelly Engelhardt. The facts of this case

are fully set forth in this court’s order on direct appeal. See Howard, 2018 IL App (1st) 142401-

U, ¶¶ 20-68. We recount only the facts necessary to resolve the instant appeal.

¶6 The evidence at trial showed that on April 17, 2009, defendant stabbed four family

members of his then-fiancée, Amanda Engelhardt: her father, Alan; her mother, Shelly; her

sister, Laura; and her grandmother, Marlene. At the time of these offenses, defendant and

Amanda were living together in an apartment with their baby daughter. After arguing throughout

the day on April 16, 2009, defendant called Amanda’s parents and told them to come and get her.

Shortly thereafter, Amanda, her parents, and the baby returned to the Engelhardt’s house.

Defendant later arrived at the house to talk to Amanda, and they agreed to separate. Amanda told

defendant she was tired, and he agreed to let himself out and go home.

¶7 Amanda later awoke to defendant holding a kitchen knife to her throat. Defendant led her

to the den, where Shelly was knitting. Defendant tied Amanda and Shelly together around their

chests, wrists, and necks and went upstairs. He came back to the den with Laura and “[h]ogtied”

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her. When defendant untied Laura, she grabbed the knife and stabbed him in the arm. As they

struggled over the knife, defendant stabbed Laura multiple times. He also stabbed Shelly (who

was still tied up) and Marlene and Alan (who had come downstairs to see what was happening).

Laura, Marlene, and Alan died from the injuries inflicted by defendant.

¶8 At trial, defendant raised the affirmative defense of insanity, presented the testimony of

various mental health professionals, and testified concerning his mental state leading up to, and

during, the attacks. The jury found defendant guilty of the murders of Laura, Marlene, and Alan,

and the attempt murder of Shelly.

¶9 The presentence investigation report (PSI) reflected that defendant was 20 years and 11

months old at the time of the crimes. 1 At defendant’s July 9, 2014 sentencing hearing, the State

introduced the victim impact statements of Shelly and her son, Jeff Engelhardt. In mitigation,

defense counsel presented a 90-page “sentencing packet,” which included information

concerning defendant’s history of placements within the Illinois Department of Children and

Family Services (DCFS) and interviews with various acquaintances of defendant. Counsel

argued that “the mitigation on behalf of [defendant] is overwhelming,” based on defendant’s

history of mental illness, abuse, neglect, trauma, and DCFS involvement.

¶ 10 After considering the victim impact statements, the statutory factors in aggravation and

mitigation, the PSI, and the “sentencing packet of materials presented by the defense,” the trial

court found that “none” of the statutory factors in mitigation were applicable. The court imposed

three mandatory concurrent natural life terms for each murder (see 730 ILCS 5/5-8-1 (c) (ii)

(West 2014)) and a consecutive 60-year sentence for attempt murder. The court found that

defendant’s conduct caused serious harm and that a maximum extended term sentence was

1 Defendant “refused to answer any questions” when interviewed for the PSI. -3- No. 1-22-0483

“necessary to deter others from committing the same crime.” See 730 ILCS 5/5-8-4(d) (1); 730

ILCS 5/5-5-3.2(1), (7) (West 2014). Defendant’s motion to reconsider sentence alleged that the

trial court “erred in failing to give adequate consideration to mitigating factors, such as the

defendant’s history of abuse, neglect, and mental illness, his history as a ward of DCFS, [and] his

history of foster care placements.” The trial court denied the motion. The judgment of the circuit

court was affirmed on direct appeal. Howard, 2018 IL App (1st) 142401-U, ¶ 2.

¶ 11 On February 22, 2019, defendant filed a pro se petition for postconviction relief, arguing

that trial counsel was ineffective for failing to investigate defendant’s fitness and competency for

trial and for failing to present expert testimony to support his insanity defense. This court

affirmed the judgment of the circuit court summarily dismissing the petition. Howard, 2021 IL

App (1st) 191329-U, ¶ 2.

¶ 12 On December 8, 2021, defendant filed a motion for leave to file a successive postconviction

petition. Defendant argued that his sentence violated the eighth amendment to the United States

Constitution and the proportionate penalties clause of the Illinois Constitution. Although he was

20 years and 11 months old when the crimes were committed, he claimed that he was “the

functional equivalent of a juvenile” due to his “youth[,] *** mental health issues, lack of proper

childhood development, and trauma.” A report prepared by developmental psychologist Dr. James

Garbarino on November 17, 2021 was attached to defendant’s petition. Defendant asserted that the

report constituted “newly discovered evidence” that defendant’s development “could have

influenced [his] actions” in committing the crimes.

¶ 13 In denying leave to file the successive petition, the circuit court held that Miller claims “do

not apply to defendants over the age of 18 at the time of the offense” and that defendant was unable

to establish cause for his proportionate penalties claim based on People v. Dorsey, 2021 IL 123010.

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See id. ¶ 74 (holding 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”). The court found that “the original sentencing and the direct appeal in this case

occurred after Miller,” but defendant failed to raise his claim on direct appeal or in his initial

postconviction petition. The court also found that Dr. Garbarino’s report is not “new” evidence

because “the evidence upon which it was based was available at the time of the original sentencing”

and was presented in mitigation.

¶ 14 ANALYSIS

¶ 15 The Act provides a remedy for criminal defendants 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

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 shows 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 when 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. We review the denial of defendant’s motion for leave to

file a successive postconviction petition de novo. Id. ¶ 13.

¶ 16 Defendant’s proportionate penalties claim is premised on the principles adopted in Miller

v. Alabama, 567 U.S. 460 (2012). 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

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prohibition on ‘cruel and unusual punishments.’ ”Miller, 567 U.S. at 465. Under Miller, 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.

¶ 17 Although Miller only applies directly to those under the age of 18 at the time of the

offense (see People v. Harris, 2018 IL 121932, ¶ 58), our supreme court has held that “[b]y way

of the proportionate penalties clause, *** young adults may rely on the evolving neuroscience

and societal standards underlying the rule in Miller to support an as-applied challenge to a life

sentence” under the Act. People v. Walker, 2022 IL App (1st) 201151, ¶ 27; see People v.

Thompson, 2015 IL 118151, ¶ 44; see also Harris, 2018 IL 121932, ¶ 48. 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. A sentence violates the proportionate penalties clause if it 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).

¶ 18 Defendant argues that he established cause for failing to bring his proportionate penalties

claim in his initial postconviction petition because “science and case law dealing with the still-

developing brains of emerging adults is new and evolving and thus it is proper to bring such

claims now.” However, the “science and case law” upon which defendant relies had already

evolved by 2019, when defendant’s initial postconviction petition was filed. See Miller, 567 U.S.

at 465; Thompson, 2015 IL 118151, ¶ 44 (recognizing that a 19-year-old defendant is “not

necessarily foreclosed” from raising as-applied challenge to sentence under the Act); Harris,

2018 IL 121932, ¶ 48 (18-year-old defendant’s as-applied claim could be raised in a separate

proceeding under the Act).

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¶ 19 Regardless, based on People v. Dorsey, 2021 IL 123010, ¶ 74, the unavailability of Miller

and its progeny does not provide defendants with cause to raise a claim under the proportionate

penalties clause. In Dorsey, our supreme court reiterated that “Illinois courts have long

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

of sentencing.” Id. 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.

¶ 20 Defendant’s argument that Dorsey’s holding does “not apply to emerging adult cases”

(because the defendant in Dorsey was a juvenile at the time of the crime) is foreclosed by our

supreme court’s recent decisions in People v. Clark, 2023 IL 127273, ¶¶ 92-93, and People v.

Moore, 2023 IL 126461, ¶ 42. 2 In Clark, 2023 IL 127273, ¶¶ 26, 93, the defendant sought leave

to file an as-applied proportionate penalties claim challenging his 90-year de facto life sentence

for a crime he committed at the age of 24. The court held that defendant failed to show cause,

reaffirming its holding “in Dorsey 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’ in a successive postconviction petition.” Id. ¶ 92.

¶ 21 The Clark court found that the “same reasoning” in Dorsey applied to the 24-year-old

defendant because, “[a]s is the case with juvenile offenders, Illinois courts were also aware that

‘less than mature age can extend into young adulthood—and they have insisted that sentences

take into account that reality of human development.’ ” Id. ¶ 93 (quoting People v. Haines, 2021

IL App (4th) 190612, ¶ 47 (citing People v. Maldonado, 240 Ill. App. 3d (1992); People v.

Center, 198 Ill. App. 3d 1025 (1990); People v. Adams, 8 Ill. App. 3d 9 (1972))). Since “Miller

2 People v. Clark, 2023 IL 127273 and People v. Moore, 2023 IL 126461 were decided after this case was fully briefed. -7- No. 1-22-0483

does not present new proportionate penalties clause principles with respect to discretionary

sentencing of young adult offenders,” defendant “ ‘had the essential legal tools to raise his

present proposed claim under the proportionate penalties clause’ when he filed his previous

postconviction petitions.’ ” Id. (quoting Haines, 2021 IL App (4th) 190612, ¶ 49).

¶ 22 Our supreme court reiterated these principles in Moore, 2023 IL 126461, ¶¶ 40-42. There,

the court consolidated the appeals of two defendants, Moore and Williams. Both defendants

sought leave to file successive postconviction petitions, raising as-applied proportionate penalties

challenges to their discretionary natural life sentences for murders they committed when they

were 19 years old. Id. ¶¶ 1, 15, 25. The court found that the “evidence and argument raised at the

sentencing hearings for both Moore and Williams 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.” Id. ¶ 42. Relying on Clark, the

court held that because “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. Id.

¶ 23 Consistent with Clark and Moore, this court has repeatedly applied Dorsey’s holding to

young adult offenders. See, e.g., Walker, 2022 IL App (1st) 201151, ¶ 29 (it follows that “our

supreme court’s recent acceptance that Miller may apply to young adults in certain

circumstances does not provide cause for a young adult’s successive petition either”); People v.

French, 2022 IL App (1st) 220122, ¶ 29 (rejecting defendant’s argument that Dorsey’s holding

did not apply to young adult defendants); People v. Walsh, 2022 IL App (1st) 210786, ¶ 33

(where “cause has been fully litigated ***, this court has universally applied the holding in

Dorsey to conclude that cause has not been established based on the prior unavailability of Miller

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and its progeny”). Based on Dorsey, Clark, and Moore, defendant is unable to establish cause for

failing to raise his proportionate penalties claim in his initial postconviction petition.

¶ 24 Defendant further asserts that “Dr. Garbarino’s report constituted cause to bring this

claim now,” claiming that it would have been “unfair” to require him to obtain an expert report

“within 18 months of Harris being issued” (i.e., when his initial postconviction petition was

due). We disagree.

¶ 25 In 2015, our supreme court recognized that a 19-year-old defendant could raise an as-

applied constitutional challenge to his sentence under the Act. See Thompson, 2015 IL 118151, ¶

44. And “while the more recent caselaw certainly adds to defendant’s argument, his

proportionate penalties claim was ‘buildable’ ” prior to Harris, Thompson, and even Miller. See

French, 2022 IL App (1st) 220122, ¶ 31 (citing Haines, 2021 IL App (4th) 180612, ¶ 56); see

also People v. Guerrero, 2012 IL 112020, ¶ 20 (“the lack of precedent for a position differs from

‘cause’ for failing to raise an issue, even when the law is against him, in order to preserve it for

review”). Here, defendant provides no “objective factor” that prevented him from presenting his

proportionate penalties claim in his initial petition. See French, 2022 IL App (1st) 220122, ¶ 33

(because defendant’s claim was “buildable” prior to Miller and Thompson, he had “ample time to

summon the evidentiary support to raise his proportionate penalties claim”).

¶ 26 Finally, relying on People v. Blalock, 2022 IL 126682, defendant argues that the circuit

court erred “in reasoning that because mitigation evidence was adduced at the original

sentencing hearing, Dr. Garbarino’s report was not in fact ‘new.’ ” In Blalock, the court held that

defendant established cause for bringing a coerced confession claim where he presented new

evidence of a pattern and practice of police misconduct. Id. ¶¶ 30, 45-46. In contrast, defendant

is relying on the same mitigation evidence presented at the original sentencing hearing. It follows

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that he “ ‘had the essential legal tools to raise his present proposed claim under the proportionate

penalties clause’ ” when he filed his initial postconviction petition. See Clark, 2023 IL 127273, ¶

93 (quoting Haines, 2021 IL App (4th) 190612, ¶ 49).

¶ 27 Because defendant has failed to establish cause, we need not address whether he has

made a prima facie showing of prejudice. See People v. Brown, 225 Ill. 2d 188, 207 (2007).

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 30 Affirmed.

¶ 31 JUSTICE PUCINSKI, specially concurring:

¶ 32 I agree with the majority based on the facts of this case, which was the result of three

brutal murders and one horrible attempt murder. No one can minimize the terrible effect of these

crimes, particularly on the child left behind.

¶ 33 However, the science of emerging adults is real and reliable. I urge the legislature to

consider separate guidelines for juveniles, emerging adults and adults. These are three separate

and distinct classes based on a combination of age, maturity, impulsivity, and other factors which

should all be considered in determining intent, a necessary element in felonies, and considered in

our state’s sentencing guidelines.

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