2021 IL App (2d) 180781-U No. 2-18-0781 Order filed March 23, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 99-CF-1454 ) CHRISTOPHER MARQUEZ, ) Honorable ) Rosemary Collins, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court. Justices McLaren and Schostok concurred in the judgment.
ORDER
¶1 Held: Defendant showed neither cause nor prejudice to justify the filing of a successive postconviction petition alleging that his sentence of 50 years’ imprisonment, imposed for first-degree murder when he was 18 years old, violated the proportionate penalties clause of the Illinois Constitution because the trial court did not adequately consider his youth and rehabilitative potential. Defendant made the equivalent sentencing claim in the underlying proceedings and it was rejected; though he relies on subsequent case law, the legal basis for his current claim existed when he made it previously.
¶2 Defendant, Christopher Marquez, appeals the trial court’s order denying him leave to file
a successive postconviction petition. He contends that he established both cause and prejudice for
failing to raise the issue sooner, because (1) the law on which his claim is based did not exist when 2021 IL App (2d) 180781-U
he filed his initial petition and (2) this new law shows that the trial court erred in sentencing him.
Because the legal basis for defendant’s claim existed when he filed his initial petition, and he
merely cites additional authority in support of that claim, we affirm.
¶3 I. BACKGROUND
¶4 Following a 1998 jury trial, defendant was convicted of first-degree murder (720 ILCS 5/9-
1(a)(2) (West 1998)) in the shooting death of a rival gang member, Travis Johnson. At trial,
defendant, who was 18 at the time of the offense, admitted shooting Johnson but asserted that he
acted in self-defense. The jury was instructed on self-defense and second-degree murder but found
defendant guilty of first-degree murder.
¶5 The trial court sentenced defendant to 50 years’ imprisonment. The presentence
investigation report (PSI) showed that defendant had convictions for retail theft, operating an
uninsured vehicle, having an expired driver’s license, domestic battery, and underage drinking.
Defendant refused to authorize the release of his school and mental-health records, but several
police officers testified about prior incidents in which defendant was involved.
¶6 Defendant moved to reconsider the sentence, arguing that the court had failed to consider
his youth and rehabilitative potential. The court denied the motion, stating that it had considered
defendant’s youth and rehabilitative potential when it declined to impose the maximum sentence.
¶7 On direct appeal in 2000, this court affirmed the conviction, rejecting defendant’s argument
that the trial court erred in refusing the jury’s request for a definition of “imminent” despite defense
counsel’s asking the court to deny the request. People v. Marquez, No. 2-00-0497 (2001)
(unpublished order under Supreme Court Rule 23).
¶8 In 2002, defendant filed a postconviction petition in which he raised several claims,
including that appellate counsel was ineffective for failing to raise various issues, such as that his
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sentence was excessive. The trial court appointed counsel. Counsel argued that it was
unreasonable for appellate counsel not to have questioned defendant’s sentence as being at the
higher end of the range for a young defendant with no prior felony convictions. The trial court
granted the State’s motion to dismiss the petition, and this court affirmed. People v. Marquez,
No. 2-03-1357 (2005) (unpublished order under Supreme Court Rule 23).
¶9 In 2018, defendant filed a motion for leave to file a successive postconviction petition. In
it, he argued that his 50-year discretionary sentence violated 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. I, § 11). He contended that under Miller v. Alabama, 567 U.S.
460 (2012), People v. House, 2015 IL App (1st) 110580, and People v. Harris, 2016 IL App (1st)
141744, imposing a de facto life sentence on an 18-year-old was unconstitutional where the
sentence failed to consider the hallmark features of youth as now required by the United States
Supreme Court and the Illinois Appellate Court. Defendant alleged cause for failing to raise the
claim earlier in that the claim relied on law that did not exist at the time of his direct appeal and
initial postconviction petition. Defendant alleged prejudice in that the court failed to consider his
youth “through the lens of the new developments in science.” The trial court denied the motion,
and defendant timely appealed.
¶ 10 II. ANALYSIS
¶ 11 Defendant contends that the trial court erred by not allowing him to file his successive
petition. He argues that the new petition is based on law that did not exist when he filed his initial
petition and that this new law shows that the trial court did not adequately consider his youth and
rehabilitative potential when it imposed his sentence.
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¶ 12 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) offers a
procedure by which a defendant may assert that his conviction was based on a substantial denial
of his rights under the federal or state constitutions or both. 725 ILCS 5/122-1(a)(1) (West 2018).
The Act contemplates the filing of a single petition. 725 ILCS 5/122-3 (West 2018). Because
successive petitions impede the finality of criminal litigation, the statutory bar to multiple petitions
will be relaxed only when fundamental fairness so requires. People v. Holman, 2017 IL 120655,
¶ 25.
¶ 13 Generally, two instances qualify: when a defendant raises a claim of actual innocence or
when he satisfies the cause-and-prejudice test. Id. ¶ 26. To establish cause, a defendant must show
some objective factor external to the defense that impeded his ability to raise the claim in the initial
postconviction proceeding. Id. To establish prejudice, a defendant must show that the claimed
constitutional error so infected the proceeding that the result violated due process. Id. We review
de novo the denial of leave to file a successive petition. People v. Bailey, 2017 IL 121450, ¶ 13.
¶ 14 Defendant cites Miller v. Alabama, 567 U.S. 460 (2012), which held that a mandatory
sentence of life without parole for a defendant under the age of 18 violated the eighth amendment.
However, he appears to have abandoned on appeal any claim under the eighth amendment and
proceeds solely under the proportionate penalties clause, which 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. While acknowledging that his case
does not fall within the “literal parameters” of Miller, which dealt only with a mandatory life
sentence imposed on a juvenile, he contends that “Miller and its progeny have prompted a re-
evaluation of the constitutional limitations of young adult sentences under the Illinois
Proportionate Penalties Clause.” (Emphasis in original.)
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¶ 15 Under Miller, a juvenile defendant may be sentenced to life imprisonment if the trial court
finds that the defendant’s conduct showed “irretrievable depravity, permanent incorrigibility, or
irreparable corruption beyond the possibility of rehabilitation.” People v. Holman, 2017 IL
120655, ¶ 46. The court must first consider the defendant’s youth and its attendant characteristics,
which include the juvenile defendant’s (1) “chronological age at the time of the offense and any
evidence of his particular immaturity, impetuosity, and failure to appreciate risks and
consequences;” (2) “family and home environment;” (3) “degree of participation in the homicide
and any evidence of familial or peer pressures that may have affected him;” (4) “incompetence,
including his inability to deal with police officers or prosecutors and his incapacity to assist his
own attorneys;” and (5) “prospects for rehabilitation.” Id. (citing Miller, 567 U.S. at 477-78).
¶ 16 As further evidence of this emerging trend, defendant cites People v. House, 2015 IL App
(1st) 110580, vacated and remanded, People v. House, No. 122134 (Ill. Nov. 28, 2018)
(supervisory order); following remand, 2019 IL App (1st) 110580-B, appeal allowed, No. 125124
(Ill. Jan. 29, 2020); and People v. Harris, 2016 IL App (1st) 141744, rev’d on other grounds, 2018
IL 121932. In House, the First District held that a mandatory life sentence for a 19-year-old
defendant found guilty by accountability violated the proportionate penalties clause. House, 2015
IL App (1st) 110580, ¶¶ 100-101. In Harris, the court extended its holding in House to a 76-year
sentence imposed on an 18-year-old who pulled the trigger. Harris, 2016 IL App (1st) 141744,
¶¶ 58-69.
¶ 17 Defendant contends that these authorities postdate his initial postconviction petition,
establishing cause for failing to raise the argument there. He contends that he also established
prejudice because had the court considered the factors identified in these cases, it likely would
have imposed a shorter sentence.
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¶ 18 In People v. LaPointe, 2018 IL App (2d) 160903, we rejected an argument nearly identical
to defendant’s. In 1978, the defendant was sentenced to life imprisonment for a murder he
committed when he was 18 years old. The supreme court upheld the sentence. People v.
La Pointe, 88 Ill. 2d 482, 492-93 (1981).
¶ 19 After numerous collateral challenges to his conviction and sentence, defendant in 2016
filed a petition for leave to file a successive postconviction petition. In it, he alleged “ ‘that Eighth
Amendment principles, as set forth in Miller v. Alabama, [567 U.S. 460] (2012), should be applied
to [defendant], who turned 18 only 37 days before the offense in question here, and where the
evidence shows he was not a mature adult.’ ” LaPointe, 2018 IL App (2d) 160903, ¶ 19.
¶ 20 The trial court denied leave to file the petition, and we affirmed. We first noted, as had the
trial court, that Miller expressly applied only to juveniles. We further rejected the defendant’s
contention that Miller did not create a bright-line rule excluding anyone over that age. Id. ¶ 37.
¶ 21 The defendant in LaPointe raised claims that his sentence was unconstitutional under both
the eighth amendment and the proportionate penalties clause. We held that he did not show cause
or prejudice regarding either claim. Defendant here has abandoned on appeal his eighth
amendment claim; therefore, we focus on LaPointe’s discussion of the proportionate penalties
claim.
¶ 22 Regarding cause, we held that LaPointe’s claim under the proportionate penalties clause
could have been raised in his initial postconviction petition, given that the clause “was very much
in existence then, and the historical fact on which his claim rests—his youth at the time of the
offense—was known to all concerned.” LaPointe, 2018 IL App (2d) 160903, ¶ 55. We further
noted that the underlying proposition that a defendant’s youth is highly relevant in setting the
penalty for his crime was not novel and that the defendant had cited a 19th-century case for the
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proposition that “ ‘[t]he habits and characters’ ” of minors “ ‘are, presumably, to a large extent as
yet unformed and unsettled.’ ” Id. (quoting People ex rel. Bradley v. Illinois State Reformatory,
148 Ill. 413, 423 (1894)). We concluded that “the materials that defendant needed to assemble an
argument that his sentence was unconstitutionally severe in light of his youth were already
available when he filed his first postconviction petition.” Id. Further, the defendant had contended
in his direct appeal that his sentence was an abuse of discretion in light of the goal of rehabilitation
that the clause commands courts to consider. Id.
¶ 23 We further explained as follows:
“Miller’s nonexistence did not prevent defendant from contending that the trial court’s
alleged failure to consider his youth as a factor in mitigation violated the proportionate-
penalties clause. Miller’s nonexistence as of 2002 merely deprived defendant of some
helpful support for that claim. Surely, defendant’s contention that this created ‘cause’
proves too much. If the acquisition of new scientific knowledge to support an already
viable claim were all that a defendant needed to show in order to raise the claim years
late, then the ‘cause’ requirement of section 122-1(f) would be a weak threshold indeed.
It is one thing to hold, as the Court did, that a substantive rule of law applies
retroactively to a case that has completed the direct-appeal process. [Citation.] It is
quite another to hold that everything written in support of that new rule also applies
retroactively and thus requires reopening a judgment that did not even implicate the
new rule.” Id. ¶ 59.
¶ 24 We also concluded that the failure to raise the claim earlier did not prejudice the defendant,
because the claim lacked merit anyway. Id. ¶ 60. We initially questioned whether the defendant’s
claim was a constitutional one at all. Relief under the Act is limited to constitutional claims. 725
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ILCS 5/122-1(a)(1) (West 2018). The defendant’s claim, however, amounted to nothing more
than a contention that the trial court had “ignored the factors of youth and rehabilitative potential
that the clause required it to consider.” LaPointe, 2018 IL App (2d), ¶ 61. We further noted that
the substance of the defendant’s claim had been rejected on direct appeal. Id. ¶ 63.
¶ 25 We distinguished House and Harris, which the defendant cited in support of his claim that
his life sentence was unconstitutional. We noted that in House, the defendant’s participation in
the crime was minimal as he merely acted as a lookout. Id. ¶ 65. Harris was distinguishable, we
said, because, unlike LaPointe, the defendant had no criminal record. Further, the trial judge in
Harris strongly implied that he would have considered a lesser sentence had his discretion not
been constrained by mandatory sentencing enhancements. Id. ¶ 69.
¶ 26 In People v. Hoover, 2019 IL App (2d) 170070, we applied LaPointe to the case of a 22-
year-old defendant who claimed that his discretionary life sentence for murder violated the
proportionate penalties clause. We affirmed the trial court’s denial of leave to file a successive
postconviction petition, noting that the proportionate penalties claim could have been raised earlier
and that the defendant was not prejudiced because his claim, like LaPointe’s, merely amounted to
a claim that the trial court abused its discretion in sentencing. Id. ¶¶ 37-38. In People v. Suggs,
2020 IL App (2d) 170632, ¶ 35, we declined to apply Miller to a defendant who was 23 when he
committed his crimes. We proceeded to hold that, without the force of Miller, the defendant’s
proportionate penalties claim was “little more than a contention that the trial court did not properly
weigh his rehabilitative potential.” Id. ¶ 40.
¶ 27 This case is controlled by LaPointe, Hoover, and Suggs. Defendant was not a juvenile but
was legally an adult when he committed the murder. While he did not have a prior felony
conviction, he had a substantial history of misdemeanor convictions, juvenile adjudications, and
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“antisocial acts” (LaPointe, 2018 IL App (2d) 160903, ¶ 69). The trial court stated explicitly that
it did consider defendant’s youth and rehabilitative potential in sentencing him. Defendant’s
contention amounts to little more than an argument that the trial court failed to give sufficient
weight to those factors, an argument that he could have, and did, raise earlier. Therefore, defendant
has established neither cause nor prejudice to justify the filing of his successive postconviction
petition.
¶ 28 Defendant argues that LaPointe and Hoover were wrongly decided. However, he provides
little support beyond the arguments that we rejected in those cases. He relies primarily on the
appellate court opinions in House and Harris, which we carefully distinguished. Unlike the
defendant in House, who was merely a lookout, defendant was the actual shooter. Unlike the
defendant in Harris, defendant had a significant history of criminal and antisocial behavior. A
further distinction is that, unlike in Harris, the sentence here was discretionary; the court was not
constrained by statute to impose a sentence longer than it wanted.
¶ 29 Defendant extensively cites People v. Miller, 202 Ill. 2d 328 (2002), but that case, too, is
distinguishable. There, a 15-year-old defendant was convicted in adult court of two counts of
murder after he served as a lookout for the actual killers. The trial court declined to impose the
statutorily mandated sentence of life imprisonment but instead imposed a 50-year prison term. The
supreme court affirmed. Noting that the requirement of a life sentence resulted from the
convergence of three separate statutes—the mandatory transfer provision for 15-year-old offenders
charged with murder (705 ILCS 405/5-4(6)(a) (West 1996)), the accountability statute (720 ILCS
5/5-2(c) (West 1996)) and the multiple-murder sentencing statute (730 ILCS 5/5-8-1(a)(1)(c)(ii)
(West 1996))—the court held that that penalty, as applied to the 15-year-old defendant without
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consideration of his age or individual level of culpability, was unconstitutionally disproportionate.
Miller, 202 Ill. 2d at 340-41.
¶ 30 Thus, People v. Miller involved a 15-year-old defendant who was convicted solely as an
accomplice. We note, moreover, that the supreme court approved for that defendant the identical
sentence that was imposed on the defendant here.
¶ 31 Defendant argues that cases such as People v. Miller, Miller v. Alabama, House, Harris,
and Holman, are evidence of “evolving standards of decency in sentencing young people.”
However, this may be, as in LaPointe, these cases merely provide additional persuasive authority
for defendant’s argument that his sentence violates the proportionate penalties clause. That claim
required only the existence of the clause itself and the underlying facts of the case. See LaPointe,
2018 IL App (2d) 160903, ¶ 55; Hoover, 2019 IL App (2d) 170070, ¶ 37. We say “persuasive”
authority because none of the cases applies directly to defendant’s situation. As in LaPointe,
arguing that the existence of additional persuasive authority in support of a claim that already
existed constitutes cause for raising the claim late surely proves too much. “It is one thing to hold
*** that a substantive rule of law applies retroactively ***. [Citation.] It is quite another to hold
that everything written in support of that new rule also applies retroactively and thus requires
reopening a judgment that did not even implicate the new rule.” LaPointe, 2018 IL App (2d)
160903, ¶ 59.
¶ 32 Defendant also cites recently enacted statutory provisions as evidence of a trend toward
greater consideration of the unique attributes of youth in sentencing for criminal offenses.
However, defendant’s argument proves too much. Generally, it is the function of the legislature
to define offenses and the resulting penalties. People v. Jones, 357 Ill. App. 3d 684, 694 (2005).
Defendant concedes that none of the enactments specifically applies to him. It is not our function,
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then, to disregard the legislature’s considered judgment and expand those provisions beyond their
intended scope. See Spear v. Board of Education of North Shore School District. No. 112, 291 Ill.
App. 3d 117, 119 (1997) (a court may not, under guise of construction, depart from a statute’s
plain meaning or otherwise change the law by supplying omissions, remedying defects, annexing
new provisions, substituting different provisions, or adding exceptions, limitations or conditions).
¶ 33 III. CONCLUSION
¶ 34 We affirm the judgment of the circuit court of Winnebago County.
¶ 35 Affirmed.
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