People v. Jones

2022 IL App (1st) 210588-U

Opinion

2022 IL App (1st) 210588-U

FOURTH DIVISION Order filed: October 27, 2022 No. 1-21-0588

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. 93 CR 16210 ) GERALD JONES, ) Honorable, ) James Ursula Walowski, Defendant-Appellant. ) Judge, presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Lampkin and Justice Martin concurred in the judgment.

ORDER

¶1 Held: We affirmed the circuit court’s denial of the defendant’s petition for leave to file a successive postconviction petition. Relying upon the supreme court’s decision in People v. Dorsey, 2021 IL 123010, we found that the defendant’s petition failed to establish cause for failure to raise in his initial postconviction petition a claim that his life sentence violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970 art. 1, § 11) based on recent caselaw governing the sentencing of juvenile and young adult offenders.

¶2 The defendant, Gerald Jones, appeals from an order of the circuit court denying him leave

to file a successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-1 et seq. (West 2020)). Relying upon cases decided after his initial postconviction petition No. 1-21-0588

was denied and recent research concerning young adult brain development, the defendant contends

that the trial court erred in denying him leave to file his successive postconviction petition because

he adequately alleged that his sentence of natural life imprisonment for crimes he committed when

he was 20 years old is unconstitutional. 1 For the reasons that follow, we affirm.

¶3 In 1994, following a jury trial, the defendant was found guilty of two counts of first degree

murder and one count of attempted first degree murder. The jury’s verdict was based on evidence

that, in 1993, the then 20-year-old defendant shot three men in the head during a dispute over a

$2000 debt allegedly incurred in the sale of drugs. The defendant told the victims that he could get

the money owed to them if they drove him to a housing project. When they arrived, he shot the

victims in the head while they sat in a car. Two of the victims died. The surviving victim pretended

he was dead and was able to drive away after the defendant left the car. Following the jury’s verdict

and a sentencing hearing, the trial court sentenced the defendant to natural life in prison, finding

that there was “a sufficient mitigating factor” such that the death penalty was not warranted. On

direct appeal, this court affirmed the defendant’s convictions and sentence. See People v. Jones,

No. 1-95-0299 (1996) (unpublished order under Illinois Supreme Court Rule 23).

¶4 In 2008, the defendant filed a pro se petition for postconviction relief contending, inter

alia, that the trial court engaged in improper ex parte communications with the jury during

deliberations. The circuit court appointed an attorney for the defendant, but the defendant asked to

proceed pro se. The circuit court ultimately dismissed the defendant’s petition, and this court

affirmed the dismissal on appeal. See People v. Jones, 2013 IL App (1st) 111247-U.

1 Although the defendant asserted in his pleadings in the circuit court that he was 19 years old on the date of the offense, the defendant concedes on appeal that the records of the Illinois Department of Corrections indicate that he was actually 20 years old.

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¶5 In 2012, the defendant filed a motion to vacate his sentence as void which the circuit court

treated as a petition to vacate pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS

5/2-1401 (West 2012)). The circuit court dismissed the petition, and on appeal, this court vacated

the order and remanded the cause, holding that the circuit court prematurely dismissed the petition,

foregoing the 30–day waiting period required by statute. People v. Jones, 2014 IL App (1st)

130175-U, ¶ 10. On remand, the circuit court again dismissed the petition. No appeal was taken

from that denial.

¶6 In 2015, the defendant filed a petition for habeas corpus, raising the same issues raised in

his postconviction petition. The circuit court dismissed the petition, and on appeal, this court

affirmed after granting defendant’s counsel leave to withdraw pursuant to Finley v. Pennsylvania,

481 U.S. 551 (1987). See People v. Jones, No. 1-16-1007 (2017) (unpublished summary order

under Supreme Court Rule 23).

¶7 On December 28, 2020, the defendant filed a motion for leave to file a successive

postconviction petition. The petition raised numerous allegations of constitutional deprivations,

including an allegation that his mandatory life sentence constituted cruel and unusual punishment

in violation of the eighth amendment of the United States Constitution (U.S. Const. amend. VIII).

The circuit court denied the defendant leave to file a successive postconviction petition.

¶8 The defendant filed a motion to reconsider the denial of leave to file a successive

postconviction petition, arguing that he was seeking relief under People v. House¸ 2019 IL App

(1st) 110580-B, and Miller v. Alabama¸ 567 U.S. 460 (2012). The defendant alleged that “because

[he the] petitioner was 19 [sic] years old, a juvenile or and mental capacity and diagnoses shows

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mild retarded or irretrievably depraved or lack the capacity to think as an adult at the time of the

case.” The circuit court denied the defendant’s motion to reconsider, and this appeal follows.

¶9 Although the defendant raised numerous issues in his proposed successive postconviction

petition, in this appeal he raises no arguments related to his eighth amendment claim, or any of the

claims raised in his petition other than the claim that his sentence violated the proportionate

penalties clause of the Illinois constitution (Ill. Const. 1970 art. 1, § 11). Therefore, those claims

not argued are forfeited and we focus solely on the proportionate penalties claim. See Ill. S. Ct. R.

341(h)(7) (eff. Oct. 1, 2020).

¶ 10 Under the Act, a defendant may raise claims that his conviction or sentence violates the

United States or Illinois Constitutions. People v. Edwards, 2012 IL 111711, ¶ 21; see also People

v. Wimberly, 2022 IL App (1st) 211464, ¶ 5. The language of the Act and the cases interpreting it

make clear that only a single postconviction proceeding is contemplated under the Act. See

Edwards, 2012 IL 111711, ¶ 22. Issues not raised in an initial petition are waived and the bar to

successive petitions is relaxed only where the defendant can establish “cause and prejudice” for

failing to raise the claim earlier or where there has been a “fundamental miscarriage of justice”

based on actual innocence. Id. ¶¶ 21-23; see also People v. Robinson, 2020 IL 123849, ¶ 42. The

defendant must make a prima facie showing of both cause and prejudice. People v. Bailey, 2017

IL 121450, ¶ 24. The Act defines “cause” as “an objective factor that impeded his or her ability to

raise a specific claim during his or her initial post-conviction proceedings.” 725 ILCS 5/122-1(f)

(West 2020). The Act states that a defendant shows prejudice by “demonstrating that the claim not

raised during his or her initial post-conviction proceedings so infected the trial that the resulting

conviction or sentence violated due process.” Id. At the leave-to-file stage, a defendant “ ‘is not

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required to make the “substantial showing” that will later be required at a second-stage hearing

after counsel is appointed.’ ” Wimberly, 2022 IL App (1st) 211464, ¶ 5 (quoting People v. Walker,

2022 IL App (1st) 201151, ¶ 20). Instead, “ ‘leave of court to file a successive postconviction

petition should be denied only where it is clear from a review of the petition and attached

documentation that, as a matter of law, the petitioner cannot set forth a colorable claim.’ ” Walker,

2022 IL App (1st) 201151, ¶ 20 (quoting People v. Sanders, 2016 IL 118123, ¶ 24). We review

the denial of leave to file a successive postconviction petition de novo. Robinson 2020 IL 123849,

¶ 39.

¶ 11 In urging reversal of the circuit court’s order denying him leave to file a successive

postconviction petition, the defendant argues that his proposed petition made a prima facie

showing of both cause and prejudice. As to the cause prong of the test, he contends that the legal

basis for his proportionate penalties claim based on Miller and subsequent decisions expanding

the special protections afforded to juvenile and young-adult offenders at sentencing did not exist

when he filed his initial postconviction petition. The defendant points to a number of cases in

which 18-, 19-, and 20-year-old defendants were granted leave to file successive postconviction

petitions raising proportionate penalties claims, each of which was decided before our supreme

court issued its opinion in People v. Dorsey, 2021 IL 123010 (People v. Brewer, 2021 IL App (1st)

172314, People v. Franklin, 2020 IL App (1st) 171628, People v. Bland, 2020 IL App (3d) 170705,

People v. Minniefield, 2020 IL App (1st) 170541, People v. Ruiz, 2020 IL App (1st) 163145,

People v. Johnson, 2020 IL App (1st) 171362).

¶ 12 In Dorsey, the supreme court held 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

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proportionate penalties clause.” Dorsey, 2021 IL 123010, ¶ 74; see also Wimberly, 2022 IL App

(1st) 211464, ¶ 8. In Dorsey, the supreme court explained: “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[s] of ‘some

helpful support’ for [their] state constitutional law claim[s], which is insufficient to establish

‘cause.’ ” Id.

¶ 13 The defendant argues, however, that Dorsey does not apply to his case, relying on the

holdings in People v. Vega, 2022 IL App (1st) 200663-U and People v. Horshaw, 2021 IL App

(1st) 182047, both decided after Dorsey. Although Vega was decided after Dorsey, on the question

of whether the defendant had established cause for failing to raise an as-applied proportion

penalties claim in his initial postconviction petition, the court found that the State had forfeited the

issue by failing to argue it in the body of its brief. Vega, 2022 IL App (1st) 200663-U, ¶ 46. As a

consequence, the Vega court never addressed the supreme court’s reasoning in Dorsey relating to

whether, based on recent caselaw governing the sentencing of juvenile and young adult offenders.

a defendant can establish cause for failing to raise a proportionate penalties claim in his initial

postconviction petition.

¶ 14 In addition to relying on Dorsey to support its argument that the defendant cannot satisfy

the cause prong necessary to obtain leave to file a successive postconviction petition raising a

claim under the proportionate penalties clause based on recent caselaw governing the sentencing

of juvenile and young adult offenders, the State also relies on the post-Dorsey decisions in People

v. Figueroa (Figueroa II), 2022 IL App (1st) 172390-B, and People v. Ruddock, 2022 IL App (1st)

173023, both of which decisions, relying on the reasoning in Dorsey, hold that a defendant cannot

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establish cause for failing to raise a proportionate penalties claim based on recent caselaw

governing the sentencing of juvenile and young adult offenders in an initial postconviction petition

and affirmed the circuit court’s denial of leave to file a successive petition raising such a claim.

¶ 15 The defendant attempts to distinguish Dorsey based on the fact the defendant in that case

was a juvenile; whereas, he was 20 years old at the time of the commission of the offenses of

which he was convicted. He concedes that, in holding that the defendant in Dorsey failed to

establish cause for not filing his proportionate penalties claim in his initial postconviction petition,

the supreme court found that “Illinois courts have long recognized the differences between persons

of mature age and those who are minors for purposes of sentencing.” He contends, however, that,

because Dorsey was decided in the context of a juvenile defendant, his case presents a different

issue. In support of the argument, he asserts that, unlike juveniles, “the law has not ‘long

recognized’ that young adults are constitutionally different than mature adults for sentencing

purposes.” On that point, we disagree. As the court in People v. Haines, 2021 IL App (4th) 190612,

¶ 47 observed, “Illinois courts also have long been 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,” citing People v. Maldonado, 240 Ill. App. 3d 470, 485-86 (1992) and People v.

Center, 198 Ill. App. 3d 1025, 1034 (1990).

¶ 16 Horshaw is the only post-Dorsey case of significance relied upon by the defendant in

support of his argument that he satisfied the cause prong of the cause and prejudice requirement

necessary to be granted leave to file a successive postconviction petition. In that case, this court

reversed an order of the circuit denying the defendant leave to file a successive postconviction

petition raising a claim pursuant to the proportionate penalties clause based on recent caselaw

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governing the sentencing of juvenile and young adult offenders, finding, inter alia, that the

defendant had made a prima facie showing of cause for not raising the claim in his initial

postconviction petition. Horshaw, 2021 IL App (1st) 182047, ¶ ¶ 123-24. However, Horshaw was

decided before Wimberly, 2022 IL App (1st) 211464 and Figueroa II, 2022 IL App (1st) 172390-

B, both post-Dorsey decisions involving the denial of leave to file successive postconviction

petition based on proportionate penalties clause claims by defendants who were young adults at

the time of the commission of the offenses for which they were convicted.

¶ 17 Following the reasoning in Dorsey, this court in Wimberly found that the defendant could

not satisfy the cause prong of the cause and prejudice test and affirmed the circuit court’s denial

of the defendant’s petition for leave to file a successive postconviction petition raising a

proportionate penalties claim based on Miller and subsequent decisions expanding the special

protections afforded to juvenile and young-adult offenders at sentencing. Wimberly, 2022 IL App

(1st) 211464, ¶ 9.

¶ 18 In People v. Figueroa (Figueroa I), 2020 IL App (1st) 172390, this court filed an opinion

reversing the circuit court’s order denying the defendant leave to file a successive postconviction

petition claiming that his sentence is unconstitutional under Miller, because it was imposed without

adequate consideration of his youth and its attendant characteristics. Id. ¶ 1. In addition, we

vacated the defendant’s sentence and remanded the matter for a new sentencing hearing. Id.

However, in response to the State’s petition for leave to appeal Figueroa I, the supreme court

denied the petition but issued a supervisory order (2021 IL 126497), remanding the matter to this

court with instructions to vacate our judgement and reconsider the matter in light of its decision in

Dorsey. On remand, and subsequent to our opinion in Horshaw, this court affirmed the circuit

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court’s order denying the defendant leave to file a successive postconviction petition claiming that

his sentence is unconstitutional under the proportionate penalties clause of the Illinois Constitution,

holding, inter alia, that “Dorsey is entirely dispositive of defendant's claim. Defendant has failed

to satisfy the cause prong of the cause and prejudice test.” Figueroa II, 2022 IL App (1st) 172390-

B, ¶ ¶ 37-42. In Wimberly, this court came to the same conclusion. 2022 IL App (1st) 211464, ¶ 9.

¶ 19 Relying upon the supreme court’s decision in Dorsey, we conclude that the defendant in

this case failed to establish cause for failing to bring his proportionate penalties claim in his initial

postconviction petition. Consequently, we affirm the order of the circuit court denying him leave

to file a successive postconviction petition.

¶ 20 Affirmed.

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