2026 IL App (1st) 241544-U
FIRST DIVISION March 30, 2026
No. 1-24-1544
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 JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Respondent-Appellee, ) Circuit Court of ) Cook County. v. ) ) No. 98 CR 19106 (02) DONZELL LOWE, ) ) Honorable Petitioner-Appellant. ) Timothy Joseph Joyce, ) Judge Presiding. )
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s second-stage dismissal of the successive postconviction petition, where postconviction counsel did not provide unreasonable assistance by failing to argue an as-applied proportionate penalties claim.
¶2 The petitioner, Donzell Lowe, appeals from the second-stage dismissal of his successive
petition filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2020)). On appeal, he solely argues that he was denied his right to the reasonable assistance of No. 1-24-1544
postconviction counsel. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Because the procedural history of this case and the evidence adduced at the petitioner’s
trial are fully articulated in our decision affirming the petitioner’s conviction on direct appeal
(People v. Lowe, No. 1-00-3878 (2003) (unpublished order pursuant to Illinois Supreme Court
Ruler 23)) and our order affirming the dismissal of his first pro se postconviction petition (People
v. Lowe, 2011 IL App (1st) 100309-U)), we set forth only those facts relevant to the resolution of
the issues raised here.
¶5 In July 1998, the 18-year-old petitioner was charged with, inter alia, the first-degree
murder of Gerchaton Young and attempted first-degree murder of Reggie Rupert. In 2000, the
petitioner proceeded with a bench trial. Summarized, the evidence adduced at trial established that
on June 21, 1998, the petitioner, who was a member of the Blackstone Ranger gang, participated
in a drive-by shooting at 5846 South Hermitage Avenue, which resulted in Young’s death and
Rupert’s injuries. At the time of the shooting, Young was sitting inside her vehicle with her sister,
talking to Rupert, who was standing outside. Rupert, who was a member of the Gangster Disciples
gang, had recently been released on bond after having been charged with the murder of the
petitioner’s brother. While Rupert was talking to Young, a burgundy vehicle with four individuals,
including the petitioner and a codefendant, Cion Rice, turned the corner, and both men shot in
Rupert’s direction striking him and killing Young. In his statement to the police, the petitioner
admitted to being present for the shooting, but stated that it was codefendant Rice who carried out
the shooting in retaliation for a prior shooting earlier that day carried out by the Gangster Disciples.
At trial, the petitioner also presented alibi testimony from his grandmother and a friend, averring
that at the time of the shooting he was at home playing video games and had been using crutches
2 No. 1-24-1544
because he had previously been shot.
¶6 Based on the aforementioned evidence, the trial judge found the petitioner guilty of the
first-degree murder of Young and the attempted first-degree murder of Rupert.
¶7 At the subsequent sentencing hearing, the court was presented with a presentence
investigation report (PSI). According to the PSI, the petitioner was 18 years old at the time of the
offense and had attended school until the eleventh grade. The petitioner was not married but had a
three-year-old child, who lived in Milwaukee. The petitioner described his own childhood as “fair”
and indicated he did not experience any abuse or neglect. The petitioner’s father “split” when he
was seven years old and the petitioner was raised by his mother and grandmother. The petitioner
reported that his health was “poor” because of diabetes and a gunshot wound to his right leg. He
also stated that in 1995 he was hospitalized for depression “somewhere on North Lake Shore
Drive.” The petitioner stated that he did not abuse drugs or alcohol. He admitted to being a member
of the Blackstone Rangers between 1992 and 1995 but claimed he left the gang after his brother
died from gunshot wounds.
¶8 According to the PSI, the petitioner’s criminal history included two juvenile delinquency
findings and one adult felony conviction. Specifically, as a juvenile, in 1992, the 12-year-old
petitioner pleaded guilty to attempted first-degree murder and was placed on probation. Two years
later, in 1994, the 14-year-old petitioner pleaded guilty to unlawful use of a weapon (UUW) and
was sentenced to 30 days in the Juvenile Temporary Detention Center. In September 1997, the
petitioner again pleaded guilty to UUW and was sentenced to two years of felony probation as an
adult, which he was still serving at the time he committed the instant offense.
¶9 At the sentencing hearing, in aggravation, the State presented a victim impact statement
from Young’s sister and testimony by two police officers regarding the petitioner’s adult criminal
3 No. 1-24-1544
history. That testimony additionally revealed that, at the time of his arrest in the instant case, the
petitioner was out on bond in a separate case in which had had been charged with the February
1998 attempted first-degree murder of Kamau Mason, and which was still pending in Bridgeview
at the time of his sentencing hearing.
¶ 10 Based on the petitioner’s criminal history, gang involvement, and the facts of the instant
crime, which had resulted in the death of an innocent victim, the State argued that the petitioner
was not someone who deserved a “break,” and urged the court to impose a substantial sentence.
¶ 11 In response, in mitigation, defense counsel presented the testimony of the petitioner’s
mother, Veronica Jones, who described the petitioner’s struggles with childhood diabetes and
complications stemming from an October 1998 gunshot wound to his leg, which required
numerous surgeries and his walking with the use of crutches. Jones also testified that prior to the
sentencing hearing Mason told her that the petitioner was not the man who shot him in February
1998.
¶ 12 Based on this evidence, defense counsel argued that the petitioner was a “young man 20
years old,” who had only one prior adult felony conviction, and suffered from “various illnesses,”
including diabetes, which “continue[d] to plague him.” Counsel urged the court to take into
account those “good things” about the petitioner it had heard from the “people who love him,” and
impose a sentence that would not “bury him” but would allow him to return to his family “while
he [wa]s still a relatively young man.” As counsel argued:
“You have the power to say I’m going to give you a sentence where you will never see
daylight again. I am asking you that you don’t. I am asking you to consider the act that at
the tender age of 20 he is still subject to rehabilitation. That he could be a fruitful and
contributing person to society. That he is educated enough, that he is understanding
4 No. 1-24-1544
enough, that he could eventually go back to a loving family.”
¶ 13 After considering the parties’ arguments, the PSI, and the facts of the instant case, on June
21, 1998, 1 the trial judge sentenced the petitioner to 50 years’ imprisonment on the first-degree
murder conviction and 10 years’ imprisonment on the attempted first-degree murder conviction to
be served concurrently. 2
¶ 14 On direct appeal, the petitioner argued that his trial counsel was ineffective for failing to
secure the live testimony of a witness or make a timely request that the circuit court consider that
witness’s testimony in codefendant Rice’s trial as substantive evidence. On March 31, 2003, we
rejected the petitioner’s arguments and affirmed his convictions and sentence. See People v. Lowe,
No. 1-00-3787 (2003) (unpublished order pursuant to Illinois Supreme Court Ruler 23).
¶ 15 On August 12, 2003, the petitioner filed a pro se postconviction petition alleging that he
was denied a fair trial and effective assistance of counsel. After the circuit court docketed the
petition for further proceedings, on June 12, 2008, privately retained counsel supplemented the
petition to include a claim of actual innocence. The petition was ultimately dismissed after a third-
stage evidentiary hearing. We affirmed that dismissal on November 23, 2011. See People v. Lowe,
2011 IL App (1st) 100309-U.
¶ 16 On December 2, 2022, by way of a new privately retained counsel, the petitioner sought
1 This was two days after truth-in-sentencing went into effect. 2 We note that in his opening brief, the petitioner incorrectly asserts that he is serving a 60-year sentence. While it is true that in imposing the sentence, the judge initially stated that the 50- and 10-year sentences were to be served consecutively, after a prompt from the State, the judge immediately corrected himself and clarified that the sentences were to be served concurrently. Both the mittimus and our previous orders affirming the petitioner’s conviction and sentence and the dismissal of his original postconviction petition confirm that the sentences imposed were to be served concurrently for an aggregate sentence of 50 years’ imprisonment. See People v. Lowe, 1-00- 3787, p. 1 (stating that the petitioner “was sentenced to 50 years and 10 years in prison, to be served concurrently”); People v. Lowe, 2011 IL App (1st) 100309-U, ¶ 4 (“The court ultimately sentenced defendant to concurrent, respective terms of 50 and 10 years’ imprisonment on his first degree murder and attempted first degree murder convictions”). The Illinois Department of Corrections’ (IDOC) website similarly confirms that the petitioner’s sentence is 50 years. https://idoc.illinois.gov/offender/inmatesearch.html; People v. Gipson, 2015 IL App (1st) 122451, ¶ 66 (we may take judicial notice of information on the IDOC website).
5 No. 1-24-1544
leave to file the instant successive postconviction petition, alleging that he was entitled to a new
sentencing hearing because he was “sentenced without consideration” of any of the factors
articulated under Miller v. Alabama, 567 U.S. 460 (2012) and its progeny. The petitioner argued
that he established cause for failing to raise this issue earlier because the law concerning lengthy
sentences for juveniles changed after he filed his initial postconviction petition in 2003. He also
argued that there was a reasonable probability that the outcome of his sentencing hearing would
have been different had the sentencing court correctly understood and applied the eighth
amendment because the new constitutional rule articulated in Miller applied retroactively and
prohibited the imposition of de facto life sentences, such as his own, on juvenile offenders. The
petitioner acknowledged that at the time of his offense, he was 18 years old and therefore “not
technically a juvenile,” but nevertheless asserted that the eighth amendment protections afforded
to juveniles under Miller should be extended to him because he was “functioning at a mental age
of less than 18.”
¶ 17 In support, the petitioner attached a 34-page report prepared on May 29, 2020, by expert
developmental psychologist Dr. James Garbarino. In that report, Dr. Garbarino explained that he
was not “offering any clinical diagnoses” of the petitioner but rather providing an analysis of the
petitioner’s developmental “pathway from infancy to adolescence” in the context of the decision
in Miller in order to explain why the protections afforded to juveniles under Miller should also be
extended to the petitioner. According to Dr. Garbarino’s report, new neuroscientific research has
demonstrated that the development of brain structure and function does not stop at 18 years of age
but rather continues well throughout an individual’s early twenties and impacts both a young
adult’s thought process and future for rehabilitation. Consequently, the same level of “immaturity
of thinking and feeling” that plagues juveniles, continues to plague young adults over the age of
6 No. 1-24-1544
18 and delays their executive functioning, affective regulation, and decision-making processes.
¶ 18 Dr. Garbarino explained that this is particularly true with individuals exposed to chronic
childhood trauma, such as the petitioner. In this respect, Dr. Garbarino noted that the petitioner
scored a 10 out of 10 on the Adverse Childhood Experiences (ACE) test, a risk assessment tool
endorsed by the Centers for Disease and Control (CDC) that predicts future health and functioning
based upon an individual’s traumatic childhood experiences (including, physical, sexual, and
psychological maltreatment, poverty, domestic violence, household substance abuse, parental
separation or divorce, depression or suicide in family members, and family incarceration).
According to Dr. Garbarino, the petitioner’s score put him in the category of children who were
worse off than 99.9% of the general population.
¶ 19 This score reflected, inter alia, some of the following childhood experiences. The
petitioner’s father left when the petitioner was only six years old. The petitioner’s mother
struggled, “got a new boyfriend and had a baby.” At that time, the petitioner “got beat for the
smallest acts almost every day,” and felt lost and angry at everyone who had “abandoned” him.
When asked what word came to mind in response to “mother,” the petitioner replied “liar,” in
contrast to the word “loser” that he offered when asked to respond to the word “father.” The
petitioner stated that the most important thing a man can be is a “good father.”
¶ 20 The petitioner was diagnosed with diabetes at a young age, after which he was repeatedly
bullied, teased, treated differently, and “cussed at” at home. The petitioner struggled in school and
was involved in fights “too many times to count.” The petitioner’s uncles and cousins used drugs
and introduced the petitioner to “life on the streets.”
¶ 21 The petitioner spent his entire life in a neighborhood plagued with violence. He first
witnessed someone getting shot when he was a small child. By the time he was 11 or 12 years old,
7 No. 1-24-1544
the petitioner had been shot at on numerous occasions and believed that carrying a gun in the
neighborhood for protection was normal. By virtue of geography, he joined the Blackstone
Rangers because they made him feel “needed.” Drug dealing and shooting became “the norm” for
him. When he was in sixth grade, the petitioner shot another teenager and “spent time in Juvie”
after which he came home feeling like he was “The Man.” By the time he was 15 years old, the
petitioner’s brother and two of his best friends were shot and killed. The petitioner could not cope
and told his doctor that he was going to kill himself, after which he was admitted to a Lake Shore
mental health institution for a few weeks. The petitioner was himself shot in 1997, after which he
underwent numerous surgeries due to complications arising from his diabetes.
¶ 22 Based on this social history and the new neuroscientific research, Dr. Garbarino opined
that the petitioner was the “embodiment of the developmental issues” with which the Miller
decision was concerned. Specifically, despite being 18 years old, the petitioner “demonstrated
immaturity of thought and emotional control, impetuous and impulsive action, and failure to
appreciate the full consequences of his criminal behavior.” As Dr. Garbarino explained, the
petitioner “came out of a family and home environment that was toxic and developmentally
damaging because of abuse” and “lived in community settings that compensated for the traumatic
features of his home life.” Moreover, because that community setting was “an urban war zone,”
the petitioner necessarily developed a “war zone mentality,” reflected in his extreme sensitivity or
hyper vigilance to any kinds of threats, and a high probability of responding to perceived threats
with aggression, including preemptive assaults (i.e., “get them before they get me.”).
¶ 23 Nonetheless, Dr. Garbarino opined that the petitioner was not “irreparably corrupt” but
rather an “untreated, traumatized child inhabiting and controlling the body of a teenager,” for
whom there remained a possibility of rehabilitation. In this respect, Dr. Garbarino explained that
8 No. 1-24-1544
to assess whether the petitioner was a good candidate for Miller resentencing he used a clinical
framework developed by clinical psychologist Carol Holden which requires the consideration of
the following factors: (1) poor disciplinary history, with little evidence of improvement; (2)
ongoing criminal behavior; (3) violence or predatory behavior; (4) continuing gang involvement;
(5) failure to benefit from educational programming; (6) poor work record; (7) failure to benefit
from psych/self-help programing; (8) lack of insight and/or treatment amenability; (9) criminal
attitudes; (10) lack of remorse; (11) callous-unemotional traits; (12) current antisocial personality
disorder/psychopathy; (13) assessed high risk for recidivism; and (14) ongoing substance use or
mental illness. According to Dr. Garbarino, an examination of the petitioner’s life in prison over
the last 22 years established that he did not meet these criteria.
¶ 24 Instead, the petitioner demonstrated “a generally good disciplinary record” and “no pattern
of criminal behavior.” Specifically, although the petitioner participated in an assault “to prove
himself” when he was initially brought to prison in 2002, after a year in segregation, at age 23 he
told himself that he needed to change and do better. Since then, the petitioner has had no violent
infractions. Instead, he has “benefited from educational programs and engaged in efforts to
understand and process the massive adversity he experienced growing up.” Specifically, the
petitioner now acknowledges and appreciates the destructiveness of his past behavior and
expresses remorse for “the loss of life.” In addition, despite suffering a heart attack in jail at the
age of 35, which required bypass surgery, the petitioner has continued to work on obtaining his
general education degree (GED), participated in math and financial skills classes, and worked in
various jobs within the penitentiary, including in health care, kitchen work, and various
maintenance roles. Under this record, Dr. Garbarino concluded that “there is hope” for the
petitioner and he is “not a lost cause.”
9 No. 1-24-1544
¶ 25 After reviewing Dr. Garbarino’s report, on April 3, 2023, the circuit court granted the
petitioner leave to file his successive postconviction petition and advanced the petition to the
second stage of postconviction proceedings.
¶ 26 On August 3, 2023, postconviction counsel informed the court that he would file a Rule
651(c) certificate that day, and on September 26, 2023, stated that he had “recently” filed that
certificate. On November 1, 2023, however, counsel indicated that he would “be back in the
building on [November] 14th and [would] get that 651(c) filed and we’ll get rolling on this.”
Subsequently, on November 14, 2023, counsel informed the court that even though the case had
been continued so that he could file his 651(c) certificate, he believed that he had “actually filed
th[e certificate] online like a month or two ago.” Counsel stated that the certificate should be online
but that if the court could not “pull it up,” he “brought a hard copy.” The court instructed counsel
to give the “hard copy” to the State and counsel said that he would. 3
¶ 27 On February 5, 2024, the State filed a motion to dismiss the postconviction petition.
Therein, the State conceded that the petitioner could establish cause for failing to raise his eighth
amendment sentencing challenge earlier because the decision in Miller had not been decided until
after he had filed his original postconviction petition. The State, nonetheless, asserted that the
petitioner had failed to establish prejudice, or in the alternative, that his eighth amendment
challenge was meritless warranting dismissal, because he was 18 years old at the time of the
offense, and therefore not entitled to any protections under Miller. The State explained that our
supreme court has repeatedly held that the eighth amendment protections created by Miller and its
progeny apply only to juveniles and not to young adults, 18 years or older, such as the petitioner
3 The record before us does not contain a copy of a Rule 651(c) certificate. What is more, nothing in the circuit court’s pronouncements, case summary, or half-sheets supports postconviction counsel’s assertion that such a certificate was ever filed.
10 No. 1-24-1544
in the instant case. See People v. Moore, 2023 IL 126461; People v. Harris, 2018 IL 121932. The
State further argued that because all the decisions cited to by the petitioner involved eighth
amendment sentencing challenges by juvenile offenders, the petitioner had failed to provide the
court with any authority “applicable to his situation.”
¶ 28 On May 8, 2024, postconviction counsel requested additional time to complete his response
to the State’s motion to dismiss but ultimately never filed one.
¶ 29 On July 18, 2024, the circuit court held a hearing on the State’s motion to dismiss. At that
hearing, the State chose to rest on its motion, noting that the issue was a “fairly straightforward
eight amendment” sentencing challenge that failed because the petitioner was 18 years old at the
time of the offense and therefore not a juvenile. In response, postconviction counsel reiterated that
according to Dr. Garbarino’s report, even though the petitioner was 18 years old at the time of his
offense, “his mental age was below 18” such that Miller and its progeny should apply and the
petitioner should be afforded a resentencing hearing.
¶ 30 After hearing the parties’ arguments, the court granted the State’s motion to dismiss the
petition. In doing so, the court construed the successive petition as challenging the petitioner’s 50-
year de facto life sentence under both the eight amendment and the Illinois proportionate penalties
clause. The court then found that pursuant to our supreme court’s recent decision on People v.
Moore, 2023 IL 126461, the petitioner could not succeed on either claim. The petitioner now
appeals.
¶ 31 II. ANALYSIS
¶ 32 On appeal, the petitioner solely asserts that he was denied his right to reasonable assistance
of postconviction counsel because counsel failed to properly raise a proportionate penalties’
sentencing challenge in his successive petition. The petitioner, therefore, seeks remand for further
11 No. 1-24-1544
second-stage proceedings with the appointment of new counsel. For the following reasons, we
disagree and find that remand for appointment of new counsel is unwarranted.
¶ 33 The Act (725 ILCS 5/122-1 et seq. (West 2020)) provides a mechanism by which criminal
defendants may address substantial violations of their constitutional rights that occurred either at
trial or at sentencing. See People v. Cotto, 2016 IL 119006, ¶ 26; People v. English, 2013 IL
112890, ¶ 22. Because the Act is not a substitute for an appeal, but rather, a collateral attack on a
final judgment, issues that were not presented in an original postconviction petition are forfeited
and issues that were previously raised and addressed on direct appeal are barred by the doctrine
of res judicata. People v. Clark, 2023 IL 127273, ¶ 38 (citing 725 ILCS 5/122-3 (West 2014)); see
also People v. Sanders, 2016 IL 118123, ¶ 24.
¶ 34 Consistent with these principles, the Act contemplates the filing of only one petition
without leave of court and codifies the cause-and-prejudice test as the prerequisite to obtaining
such relief. 725 ILCS 5/122-1(f) (West 2020). People v. Lusby, 2020 IL 124046, ¶ 27; People v.
Edwards, 2012 IL 111711, ¶ 23. To obtain leave, the petitioner must establish cause by identifying
an objective factor that impeded his ability to raise a specific claim during his initial postconviction
proceedings and prejudice by demonstrating that the claim not raised earlier so infected the trial
that the resulting conviction or sentence violated due process. Id.
¶ 35 If, as here, the circuit court grants leave to file a successive petition, the petition is docketed
for second-stage proceedings, where the petitioner must make a substantial showing of a
constitutional violation. People v. Harper, 2013 IL App (1st) 102181, ¶ 33; Cotto, 2016 IL 119006,
¶ 27. At the second stage, counsel is appointed for indigent prisoners, and the State may seek
dismissal of the petition on any ground, including procedural default. See People v. Bailey, 2017
IL 121450, ¶ 26. This permits the State to, once again, argue that dismissal is proper because the
12 No. 1-24-1544
petitioner failed “to prove cause and prejudice for not having raised the claims in the initial
postconviction petition.” Id. Our review of the circuit court’s second-stage dismissal of a petition
is de novo. People v. Johnson, 2024 IL App (1st) 220419, ¶ 65.
¶ 36 There is no constitutional right to the assistance of counsel in postconviction proceedings.
People v. Williams, 2025 IL 129718, ¶ 43; People v. Urzua, 2023 IL 127789, ¶ 51; People v.
Johnson, 2018 IL 122227, ¶ 16. Rather, the right to counsel derives solely from the Act. Id. While
the Act does not provide for a precise level of assistance, our supreme court has repeatedly held
that postconviction counsel must provide “reasonable assistance.” Id. This standard is
“significantly lower than the one mandated at trial by our state and federal constitutions.” People
v. Custer, 2019 IL 123339, ¶ 30; see also People v. Frey, 2024 IL 128644, ¶ 23. This is so, because
“[c]ounsel is appointed not to protect postconviction petitioners from the prosecutorial forces of
the State but to shape their complaints into the proper legal form and to present those complaints
to the court.” Addison, 2023 IL 127119, ¶ 19.
¶ 37 The reasonable assistance standard applies regardless of “whether the attorney is appointed
or retained and whether the proceedings are at the first, second, or third stage.” Urzua, 2023 IL
127789, ¶ 51; Williams, 2025 IL 129718, ¶ 43; Cotto, 2016 IL 119006, ¶ 42. While it is axiomatic
that when postconviction counsel files a compliant Rule 651(c) certificate, 4 a rebuttable
presumption is created that counsel provided reasonable assistance (People v. Smith, 2022 IL
126940, ¶ 29), Rule 651(c) applies only when the petition that initiates the proceeding is filed pro
se. See Johnson, 2018 IL 122227, ¶ 18 (Rule 651(c) “applies only to those defendants who file
their initial petition pro se and who are [represented by] counsel at the second stage”); Cotto, 2016
4 Pursuant to Illinois Supreme Court Rule 651(c) postconviction counsel must attest that he or she has consulted with the petitioner, examined the record of the trial proceedings, and made amendments to the petition necessary to advance the petitioner’s claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
13 No. 1-24-1544
IL 119006, ¶ 41; People v. Perkins, 229 Ill. 2d 34, 44 (2007) (the purpose of Rule 651(c) is to
ensure that counsel shapes the petitioner’s pro se claims into proper legal form and presents those
claims to the court). Where, as here, privately retained counsel drafts the petition that initiates the
proceedings, obviating the application of Rule 651(c), our courts have applied a “Strickland-like
analysis” in evaluating the “reasonableness” of postconviction counsel’s performance. See People
v. Zareski, 2017 IL App (1st) 150836, ¶¶ 58-61; People v. Perez, 2023 IL App (4th) 220280, ¶¶
41-54. Under this analysis, the petitioner must show both some level of deficient performance by
postconviction counsel and prejudice stemming from that performance, i.e., that there “is a
reasonable probability that, but for counsel’s errors, the result of the [postconviction] proceeding
would have been different.” People v. Ayala, 2022 IL App (1st) 192484, ¶ 162. The purpose of
this standard is to “prevent pointless remands to trial courts for repeated evaluation of claims that
have no chance of success.” Zareski, 2017 IL App (1st) 150836, ¶ 59.
¶ 38 Whether counsel has provided a reasonable level of assistance necessarily depends on the
unique facts of each case, which we review de novo. Williams, 2025 IL 129718, ¶ 43; People v.
Madison, 2023 IL App (1st) 221360, ¶ 35.
¶ 39 In the present case, on appeal, the petitioner argues that his postconviction counsel
provided unreasonable assistance by failing to raise an as-applied proportionate penalties challenge
to his 50-year de facto life sentence and instead asserting a meritless eighth amendment, Miller-
based claim. The petitioner asserts that postconviction counsel’s actions were “especially
egregious” because counsel was in possession of Dr. Garbarino’s report and could have utilized it
to support a proportionate penalties’ claim.
¶ 40 The State responds that contrary to the petitioner’s position, postconviction counsel did
make a proportionate penalties’ argument in the successive petition, and that, regardless, even if
14 No. 1-24-1544
he had not, that claim was not viable, such that dismissal of the petition was proper.
¶ 41 For the following reasons, we hold that while postconviction counsel rendered deficient
representation by failing to assert a proportionate penalties’ claim in the successive petition, the
petitioner was not prejudiced by this failure, and remand for further proceedings is unnecessary.
¶ 42 At the outset, we note that contrary to the State’s position, the record unequivocally shows
that postconviction counsel never made a proportionate penalties argument before the circuit court.
Instead, as drafted, the successive petition solely cited to the eighth amendment and case-law
interpreting the federal constitution with respect to juvenile offenders (those under the age of 18)
in arguing that the petitioner was entitled to a resentencing hearing. The State’s motion to dismiss
itself argued that all the decisions cited in the petition involved eighth amendment sentencing
challenges by juvenile offenders, which did not apply to the petitioner as he was not a juvenile at
the time he committed the instant offense, and were therefore not “applicable to his situation.”
Postconviction counsel made no response to this argument at the motion to dismiss hearing, and
instead, simply reiterated the eighth-amendment arguments already raised in the successive
petition, never mentioning the proportionate penalties clause. Accordingly, counsel acted
unreasonably.
¶ 43 Nonetheless, because the circuit court, in its discretion, liberally construed the successive
petition as asserting a proportionate penalties’ claim in light of Dr. Garbarino’s report and
considered that claim in the context of a second stage proceeding before dismissing it, the
petitioner suffered no prejudice.
¶ 44 Under the proportionate penalties clause of the Illinois Constitution all penalties must “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 the proportionate
15 No. 1-24-1544
penalties clause when, inter alia, the penalty imposed is “ ‘cruel, degrading, or so wholly
disproportionate to the offense as to shock the moral sense of our community.’ ” People v. Clark,
2023 IL 127273, ¶ 51 (quoting People v. Leon Miller, 202 Ill. 2d 328, 338 (2002)).
¶ 45 This court has previously traced the history of our proportionate penalties clause
jurisprudence as it relates to young adults serving life sentences, and we need not reiterate it fully
again here. People v. Horshaw, 2024 IL App (1st) 182047-B ¶¶ 47-55. Suffice it to say, in
Thompson and Harris, our supreme court initially “opened the door” for “emerging adult
offenders” (who are 18 or 19 years old), such as the petitioner here, to demonstrate through an
adequate factual record that their own “specific characteristics were so like those of a juvenile that
imposition of a life sentence absent the safeguards established in Miller was cruel, degrading, or
so wholly disproportionate to the offense that it shocks the moral sense of the community.” People
v. Daniels, 2020 IL App (1st) 171738, ¶ 25; see Thompson, 2015 IL 118151; Harris, 2018 IL
121932.
¶ 46 However, that precedent has changed, and more recently, our supreme court has severely
curtailed the ability of young adult petitioners to raise such claims by way of successive petitions.
See Clark, 2023 IL 127273, ¶¶ 24-26; Moore, 2023 IL 126461, ¶¶ 40-42. Specifically, in Clark
and Moore, our supreme court held that “the essential legal tools” to raise a proportionate penalties’
claim had always been available for petitioners during initial postconviction proceedings. See
Clark, 2023 IL 127273, ¶ 93; Moore, 2023 IL 126461, ¶ 42. Because “Miller did not change the
law applicable to young adults, it does not provide cause for the proportionate penalties challenges
advanced” in a successive petition. Moore, 2023 IL 126461, ¶ 42.
¶ 47 In applying Clark and Moore, this appellate court has repeatedly observed that “Thompson
and Harris opened the door only wide enough to accommodate [proportionate penalties’] claims
16 No. 1-24-1544
involving mandatory life sentences that were raised in initial postconviction petitions.” Horshaw,
2024 IL App (1st) 182047-B, ¶ 62; see also e.g. People v. Brewer, 2025 IL App (1st) 240088, ¶¶
29-30, People v. Minniefield, 2025 IL App (1st) 240463-U, ¶ 54; People v. Handy, 2025 IL App
(1st) 231568-U, ¶ 58; People v. Davis, 2025 IL App (1st) 231499-U, ¶¶ 19, 24.
¶ 48 Our jurisprudence collectively now holds that such claims “should be viewed as nothing
more than an extension of proportionate penalties claims that have existed all along,” and that
petitioners cannot rely on the unavailability of Miller or Miller-based proportionate penalties
precedent as cause for failure to argue them in their initial postconviction proceedings. Horshaw,
2024 IL App (1st) 182047-B, ¶ 62 (citing People v. Dorsey, 2021 IL 123010, ¶ 74; Clark, 2023 IL
127273, ¶¶ 92-93; and People v. Hilliard, 2023 IL 128186, ¶ 28); see also e.g. People v. McGee,
2025 IL App (1st) 231591-U, ¶ 32; People v. Scaggs, 2025 IL App (1st) 240953-U, ¶ 49; People
v. Handy, 2025 IL App (1st) 231568-U, ¶ 58; People v. Jones, 2025 IL App (5th) 230511-U, ¶ 38.
¶ 49 Under the narrow directive of Clark and Moore, we have also reluctantly applied this same
rationale to the prior unavailability of neuroscientific research regarding the brains of young adults,
such as the one provided here by Dr. Garbarino’s report, and repeatedly rejected arguments that
its unavailability provides the necessary cause for raising a proportionate penalties’ claim in a
successive petition. See Scaggs, 2025 IL App (1st) 240953-U, ¶¶ 46, 49-51; People v. Robinson,
2025 IL App (1st) 231419-U, ¶¶ 59, 62-63; People v. Searles, 2024 IL App (1st) 210043-U, ¶¶ 13-
17. In doing so, we have explained that the factual basis for a sentencing challenge based on a
petitioner’s age “is that fully developed adults are different from young adults who are still
developing,” which is a distinction “Illinois courts have long recognized.” Searles, 2024 IL App
(1st) 210043-U, ¶ 17; People v. Haines, 2021 IL App 190612, ¶ 47. In particular, we found that in
Clark, our supreme court clarified that “Illinois cases have long held that the proportionate
17 No. 1-24-1544
penalties clause required the circuit court to take into account the defendant's ‘youth’ and
‘mentality’ in fashioning an appropriate sentence” and that “[a]s far back as 1894, this court
recognized that ‘[t]here is in the law of nature, as well as in the law that governs society, a marked
distinction between persons of mature age and those who are minors’ ” and “ ‘[t]he habits and
characters of the latter are, presumably, to a large extent as yet unformed and unsettled.’ ” Id. ¶ 92
(quoting People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 423 (1894)).
¶ 50 Under this precedent, it is apparent that the petitioner here could not establish the requisite
cause for failing to raise a proportionate penalties’ claim in his initial postconviction proceedings
because such a claim “was always available” to him “in some form.” Horshaw, 2024 IL App (1st)
182047-B, ¶ 62 (citing Moore, 2023 IL 12646, ¶¶ 40-42). The circuit court found as much when it
liberally construed the successive petition as asserting a proportionate penalties’ claim and
dismissed that claim pursuant to Moore for failure to state cause. See Bailey, 2017 IL 121450, ¶
26 (at the second stage of postconviction proceedings the State may “seek dismissal of the petition
on any grounds, including the defendant’s failure to prove cause and prejudice for not having
raised the claims in the initial postconviction petition.”). As such, the petitioner cannot show any
prejudice stemming from postconviction counsel’s failure to raise the proportionate penalties claim
in his successive petition.
¶ 51 The petitioner nonetheless argues that based on People v. Addison, 2023 IL 127119,
remand is necessary because once the circuit court construed the petition as asserting a
proportionate penalties’ claim, postconviction counsel should have argued ineffective assistance
of appellate counsel to avoid dismissal of the successive petition on procedural grounds. We
disagree and find that case inapposite.
¶ 52 In Addison, our supreme court addressed whether appointed postconviction counsel
18 No. 1-24-1544
comported with the requirements of Rule 651(c) when he amended the petitioner’s pro se petition
to omit ineffective assistance of appellate counsel claims that the pro se petitioner had himself
alleged and which were necessary to avoid forfeiture of several of his claims. Id. ¶¶ 23-25. The
court held that under the unique facts of that case, in which postconviction counsel had “made the
petition worse by amending it,” remand was required regardless of the petition’s merit. Id. ¶ 24.
¶ 53 Unlike in Addison, as already set forth above, Rule 651(c) requirements are inapplicable
here because privately retained counsel drafted the pleading that initiated the postconviction
proceeding. See People v. Perry, 2024 IL App (1st) 230167-U, ¶ 29 (applying the “Strickland-like
analysis” set forth in Zareski and fining Addison inapplicable, where Rule 651(c) did not apply).
Moreover, this is case does not present the “unusual situation” where counsel “made the pro se
petition worse” by “eliminat[ing] the necessary allegations that [the petitioner] had included in the
pro se petition.” Addison, 2023 IL 127119, ¶ 24. In addition, unlike in Addison, where arguing
ineffective assistance of appellate counsel would have prevented forfeiture of the claims, here
making the same argument could not have overcome the procedural hurdle created by Clark and
Moore, since the petition was a successive one, and any failures by appellate counsel would have
been irrelevant to explaining why the petitioner did not raise his proportionate penalties claim in
his initial postconviction petition. Accordingly, Addison does not apply.
¶ 54 III. CONCLUSION
¶ 55 For the foregoing reasons, we find that the petitioner has failed to show that postconviction
counsel provided unreasonable assistance. Zareski, 2017 IL App (1st) 150836, ¶ 59. We therefore
affirm the judgment of the circuit court.
¶ 56 Affirmed.