2020 IL App (1st) 171274
FIRST DISTRICT SIXTH DIVISION June 5, 2020
No. 1-17-1274
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 97 CR 26539 ) BRYAN McCLURKIN, ) Honorable ) Thomas V. Gainer, Jr., Defendant-Appellant. ) Judge,presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.
OPINION
¶1 Defendant Bryan McClurkin appealsfrom an order of the circuit court, denying him leave
to file a successive petition under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq.
(West 2018). On appeal, defendant contends that the denial of leave to file was erroneous because
he showed the requisite cause and prejudice for filing a successive petition. For the reasons stated
below, we affirm.
¶2 I. JURISDICTION
¶3 In January 2017, defendant filed a motion for leave to file a successive postconviction
petition.The circuit court denied that motion on April 14, 2017, and defendant filed his notice of
appeal on May 2, 2017. Accordingly, this court has jurisdiction pursuant to article VI, section 6,
of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 651(a)
(eff. July 1, 2017), governing appeals from a final judgment in a postconviction proceeding. No. 1-17-1274
¶4 II. BACKGROUND
¶5 Following a 2000 jury trial in which the jury was instructed on second degree murder and
self-defense, as well as first degree murder, defendant was found guilty of the September 1997
first degree murders ofshopkeeper Nabil Tayeh and his 15-year-old employee,MaherHarb.At trial,
defendant had claimed self-defense against Tayeh and Harb, despite defendant being 6’8” tall
while Tayeh was 5’7” tall and Harb was 5’3” tall.The jury found defendant eligible for the death
penalty, including that he was at least 18 years old when he murdered two or more people.
¶6 A sentencing hearing was held, with considerable evidence in aggravation and mitigation.
In relevant part, psychologist Dr. Lawrence Heinrich testified for the defensethatdefendanthad a
severe personality disorder, albeit no mental illness, at the time of the offenses; that is,extreme
emotional distressresulting from childhood abuse impaired his judgment and impulse control. Dr.
Heinrich also testified that defendant’s personality disorder included “an inflated sense of self-
importance, resentful [and] arrogant attitudes, socially intimidating manner,” and being “self-
centered and socially intolerant” as well as “aware of and inconsiderate of the feelings of
others.”Dr. Heinrich’s opinion was based on interviews and testing in September 1999.
¶7 Therecordshows that defendant was born in December 1972 and had felony criminal
convictions in 1991 and 1994, including armed violence, with prison terms of six and four years
respectively. The jury chose to impose natural life imprisonment rather than the death penalty.
¶8 Before sentencing defendant, the trial court asked if there was any contest to the mandatory
application of a life sentence, and the defense had none. Noting that a natural life sentence was
mandatory and that mitigating evidence had been presented,the court gave defendant concurrent
sentences of natural life imprisonment.
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¶9 On direct appeal, we affirmed the convictions against a contention that the State misstated
evidence in its rebuttal closing argument.People v. McClurkin, No. 1-00-3322 (2003) (unpublished
order under Illinois Supreme Court Rule 23). The evidence underlying defendant’s convictions is
adequately set forth in our direct appeal order, so we shall set forth only the evidence and
procedural history necessary for an understanding of this appeal. In affirming the convictions, this
court found in part that the evidence against defendant was not closely balanced.
¶ 10 Defendant filed a pro sepostconviction petition in 2005, claiming in relevant part that
counsel was ineffective for not calling Dr. Heinrich as a trial witness to support his self-defense
argument and that his life sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The
circuit court summarily dismissed the petition in March 2005, finding that defendant “was never
able to establish that he acted in self defense as a result of his extreme emotional distress in either
the trial or the sentencing phase” and “was sentenced following a lengthy investigation by the trial
court of both mitigating and aggravating circumstances which runs contrary to the assertion that
the sentence was ‘automatic.’ ”This court affirmed that disposition against a contention that the
ineffectiveness claim for not calling Dr. Heinrich at trial was at least arguably meritorious. People
v. McClurkin, No. 1-05-1381 (2006) (unpublished order under Illinois Supreme Court Rule 23).We
held that evidence of a personality disorder that causes defendant to “overreact and become
enraged *** might account for the extreme nature of defendant’s behavior, but would not establish
that defendant believed, reasonably or unreasonably, that his actions were justified,” so that
defendant was not prejudiced by the failure to present this evidence at trial. Id. at 6.
¶ 11 In January 2017, defendant filed the pro semotion for leave to file a successive
postconviction petition now at issue. Defendant claimed that his mandatory life sentence without
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possibility of parole was unconstitutionally excessive and disproportionate as applied to him
because the trial court could not consider the effect on his fatal actions of his age,24 years,atthe
time of the offenses, his history of abuse, and his personality disorder. Defendant pointed to Dr.
Heinrich’s sentencing testimony to show his “constant, vicious physical abuse” and “severe
personality disorder.”He argued that this court has stated—in People v. Gipson, 2015 IL App (1st)
122451,People v. House, 2015 IL App (1st) 110580,and People v. Brown, 2015 IL App (1st)
130048—that Miller v. Alabama, 567 U.S. 460 (2012), holding unconstitutional the mandatory
imposition of life sentences without possibility of parole upon persons who were minors at the
time of their offenses,should not be limited to defendants who were minorsbut should apply to
young adults.
¶ 12 On April 14, 2017, the circuit court denied defendant leave to file a successive petition.
The court notedthat, of the cases defendant cited, onlyHouseactually applied Miller to an adult.
The courtdistinguishedHouse’s “unique factual circumstances,” includinga 19-year-old
offenderwith no criminal history who was a “lookout rather than actively participating in the
shooting.” By contrast,defendant was “significantly older,”“had an extensive criminal
background,”anddirectly perpetrated the murders. The court noted that the statutory requirement
of natural life imprisonment for murdering more than one person has been upheld. The courtfound
that there was no proportionate-penalties issue because defendant was not a juvenile or minor when
he committed these offenses and thus was not similarly situated to minors who by statute are no
longer subject to mandatory natural life imprisonment. Defendant timely filed this appeal.
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¶ 13 III. ANALYSIS
¶ 14 Defendant contends that the denial of leave to file a successive petition was erroneous
because he showed the requisite cause and prejudice for filing a successive postconviction petition,
raising a claim that his mandatory life sentence without possibility of parole was unconstitutional
as applied to him, because the trial court could not consider the effect on his fatal actions of his
age, 24 years, at the time of the offenses, his history of abuse, and his personality disorder.
¶ 15 ThePost-Conviction Hearing Act (725 ILCS 5/122-1 et seq.(West 2018)) provides a
mechanism by which those under criminal sentence can assert their convictions were the result of
a substantial denial of their rights under the federal andState constitutions. 725 ILCS 5/122-1(a)(1)
(West 2018). The Act provides that a defendant may file only one postconviction petition without
leave of court, which is granted only when the defendantshows both cause for not raising a claim
earlier and prejudice from not raising it earlier. “Cause” is an objective factor impeding raising the
claim earlier, and “prejudice”is an error that so infected the trial proceedings that the resulting
judgment violated due process.725 ILCS 5/122-1(f) (West 2018). Because successive petitions are
disfavored, the burden is on a defendant seeking to file a successive petition, including a pro se
defendant, to show cause and prejudice. People v. Smith, 2014 IL 115946, ¶¶ 30, 31, 34.
Asuccessive petition is held to a higher standard than the frivolous and patently without merit, or
the gist of a meritorious claim, standard for summarily dismissing an initial postconviction
petition. Id.¶ 35.
“[L]eave of court to file a successive postconviction petition should be denied when it is
clear, from a review of the successive petition and the documentation submitted by the
petitioner, that the claims alleged by the petitioner fail as a matter of law or where the
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successive petition with supporting documentation is insufficient to justify further
proceedings.” Id.
We review de novo the denial of leave to file a successive postconviction petition. People v. Bailey,
2017 IL 121450, ¶ 13;People v. Handy, 2019 IL App (1st) 170213, ¶ 27, pet. for leave to appeal
pending, No. 125827 (filed Mar. 3, 2020).
¶ 16 In People v. Leon Miller, 202 Ill.2d 328 (2002), our supreme court upheld a trial court
decision to sentence a defendant who was 15 at the time of his offense(s) and tried as an adult to
50 years’ imprisonment, despite the statutory requirement of natural life sentence for two or more
murders.The supreme court agreed with the trial court that a natural life sentence would have been
disproportionate because it would have resulted from the interaction of three statutesmandating
that certain juveniles be tried as adults, basing criminal liability on accountability, and requiring
natural life imprisonment for two or more murders.Id. at 340.
“We agree with defendant that a mandatory sentence of natural life in prison with no
possibility of parole grossly distorts the factual realities of the case and does not accurately
represent defendant’s personal culpability such that it shocks the moral sense of the
community. This moral sense is particularly true, as in the case before us, where a 15-year-
old with one minute to contemplate his decision to participate in the incident and stood as
a lookout during the shooting, but never handled a gun, is subject to life imprisonment with
no possibility of parole—the same sentence applicable to the actual shooter. Our decision
does not imply that a sentence of life imprisonment for a juvenile offender convicted under
a theory of accountability is never appropriate. It is certainly possible to contemplate a
situation where a juvenile offender actively participated in the planning of a crime resulting
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in the death of two or more individuals, such that a sentence of natural life imprisonment
without the possibility of parole is appropriate. However, that is not the case before this
court ***.” Id.at 341.
¶ 17 In People v. Harris, 2018 IL 121932, ¶¶ 1, 16, 50, a defendant sentenced to a mandatory
76 years’ imprisonment for first degree murder, attempted first degree murder, and aggravated
battery with a firearm committed when he was 18 years old asked our supreme court “ ‘to extend
the bright line rule of Miller to young adults ages 18 to 21.’ ”Id.¶ 50. However, the Harris court
rejected the facial constitutional challenge and declined to extend Miller. While the Harris
defendant argued “that emerging scientific research on the neurological development of young
adults supports extending Miller to adults under the age of 21,” the supreme court found that “the
line drawn by the Supreme Court at age 18 was not based primarily on scientific research” but was
a categorical rule based on society’s use of 18 as the threshold between childhood and adulthood
for various purposes.Id. ¶¶ 59-60. “New research findings do not necessarily alter that traditional
line between adults and juveniles.” Id.¶ 60. The supreme court found an as-applied challenge to
the sentence to be premature, noting that “the record here does not contain evidence about how the
evolving science on juvenile maturity and brain development that helped form the basis for the
Miller decision applies to defendant’s specific facts and circumstances.” Id.¶ 46.
¶ 18 Since Harris, our supreme court has held that
“to prevail on a claim based on Miller and its progeny, a defendant sentenced for an offense
committed while a juvenile must show that (1) the defendant was subject to a life sentence,
mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to
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consider youth and its attendant characteristics in imposing the sentence.” (Emphasis
added.) People v. Buffer, 2019 IL 122327, ¶ 27.
¶ 19 Upon being directed by our supreme court to reconsider its decision in light of Harris, the
Housecourt reiterated its finding that a 19-year-old offender’s life sentences for double
murderwere unconstitutional as applied for being disproportionate.People v. House, 2019 IL App
(1st) 110580-B, ¶¶ 4, 27, 32, 66, appeal allowed, No. 125124 (Ill. Jan. 29, 2020).
“While defendant was not a juvenile at the time of the offense, his young age of 19 is
relevant under the circumstances of this case. As in Leon Miller, defendant’s sentence
involved the convergence of the accountability statute and the mandatory natural life
sentence. We acknowledge that the offender in Leon Miller was 15, never handled a
firearm, and had less than a minute to consider the implications of his participation. In the
present case, the State’s evidence at trial established that defendant was not present at the
scene of the murder but merely acted as a lookout near the railroad tracks. There was no
evidence that defendant helped to plan the commission but instead took orders from higher
ranking [gang] members. While defendant had a greater involvement in the commission of
the offenses than the defendant in Leon Miller, after considering the evidence and
defendant’s relevant culpability, we question the propriety of a mandatory natural life
sentence for a 19-year-old defendant convicted under a theory of accountability. Although
defendant acted as a lookout during the commission of the crime and was not the actual
shooter, he received a mandatory natural life sentence, the same sentence applicable to the
person who pulled the trigger. Defendant is serving the same mandatory sentence of natural
life as Verser, a codefendant who participated in the shooting of the victims, while
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Weatherspoon, a codefendant with the similar culpability as defendant has been released
from the penitentiary following resentencing because Weatherspoon was 17 years old
during the commission of the murders.” Id.¶ 46.
¶ 20 In People v. Ramsey, 2019 IL App (3d) 160759, ¶¶ 4, 7, 23, this court rejected a
proportionate-penalties challenge to a natural life sentence by a defendant who was 18 at the time
of his offenses. The Ramsey court noted that the House court
“based its decision in part on evolving science regarding brain development, which has the
effect of blurring the line drawn at 18 years of age that demarcates adulthood for legal
purposes. [Citation.] However, the facts of House are markedly different from those in the
instant case. Significantly, House was convicted on an accountability theory, and he was
not present at the scene of the murders; rather, he acted as a lookout nearby, and no
evidence was presented to indicate that he aided in the planning of the murders. [Citation.]
In contrast, Ramsey was a solo actor who sexually assaulted and killed one minor and then
broke into a residence and shot four other minors, killing one. These are not circumstances
that warrant the type of leniency House received.” Id.¶ 23 (citing House, 2019 IL App (1st)
110580-B, ¶ 65).
See also Handy, 2019 IL App (1st) 170213, ¶¶ 1, 38, 40, 42 (rejecting an 18-year-old offender’s
as-applied proportionate penalties challenge to his 60-year prison sentence and affirming the denial
of leave to file a successive petition, at least in part because the House defendant was a mere
lookout while the Handy defendant active participated in his offenses).
¶ 21 Here, defendant has an actual sentence of natural life imprisonment rather than a de facto
life sentence (see Buffer, 2019 IL 122327, ¶ 40 (a prison sentence of more than 40 years is a
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de facto life sentence)) and that sentence was mandatory in the sense that, as in House, the trial
court had no discretion to impose a shorter sentence.House, 2019 IL App (1st) 110580-B, ¶ 64. On
the other hand, defendant was a24-year-old adult—no longer a teenager as inHouse—whenhe
committed the murders of Harb and Tayeh. Moreover, defendant personally killed Harb and
Tayeh,rather than being found guilty based on accountability as inLeon Miller orHouse. In sum,
we cannot say about defendant what this court said about House in granting relief:
“[W]hile clearly no longer a juvenile, defendant, at age 19 years and 2 months, was barely
a legal adult and still a teenager when he committed these offenses. His youthfulness is
relevant when considered alongside his participation in the actual shootings. Defendant’s
presentence investigation report showed that his only prior offenses were possession of a
controlled substance with intent to deliver. Defendant did not have a criminal history of
committing violent crimes.” House, 2019 IL App (1st) 110580-B, ¶ 63.
¶ 22 Lastly, we notethat defendant is not arguing that his sentence is disproportionate due solely
to his age at the time of the offense but also due to his diagnosed personality disorder.Detailed
evidence of that diagnosis is in the trial court record in the form of Dr. Heinrich’s sentencing
testimony and related exhibits. Thus, we find that the circuit court had, and we have, an ample
record upon which to evaluate defendant’s as-applied challenge to his sentence for the requisite
cause and prejudice. It is axiomatic that personalityor behavioral disorders may be aggravating as
well as mitigating factors in sentencing.People v. Baez, 241 Ill. 2d 44, 122-23 (2011); People v.
Wheeler, 2019 IL App (4th) 160937, ¶ 44. Moreover, in one of the cases that led toMiller, the
Supreme Court noted the difference
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“between the juvenile offender whose crime reflects unfortunate yet transient immaturity,
and the rare juvenile offender whose crime reflects irreparable corruption. [Citation.] As
we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing
any patient under 18 as having antisocial personality disorder, a disorder also referred to
as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and
contempt for the feelings, rights, and suffering of others.” Roper v. Simmons, 543 U.S. 551,
573 (2005).
The fact that Dr. Heinrich diagnosed defendant with a personality disorder—including being “self-
centered and socially intolerant” as well as “aware of and inconsiderate of the feelings of others”
(albeit not antisocial personality disorder particularly)—when he was nearly 27 years old, and
attributed his actions two years earlierto that disorder, militates against attributing his fatal actions
in this case to transient immaturity.
¶ 23 Despite defendant’s argument that the law interpreting and applying Miller v. Alabama is
evolving across the nation, we conclude that the law is sufficiently resolved in Illinois for the
circuit court and this court to assess defendant’s motion to file a successive postconviction petition
and conclude that he has not shown the requisite prejudice for filing a successive petition.
¶ 24 IV. CONCLUSION
¶ 25 Accordingly, we affirm the judgment of the circuit court.
¶ 26 Affirmed.
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Decision Under Review: Appeal from the Circuit Court of Cook County, No. 97-CR- 26539; the Hon. Thomas V. Gainer Jr., Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Erin Sostock, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan for J. Spellberg, Annette Collins and Brian K. Hodes, Assistant Appellee: State’s Attorneys, of counsel), for the People.
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