2021 IL App (1st) 191247-U No. 1-19-1247 Order filed March 31, 2021
FOURTH DIVISION
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 ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 94 CR 28535 03 ) JUAN MENESES, ) The Honorable ) William Raines, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Reyes and Martin concurred in the judgment.
ORDER
¶1 HELD: Defendant, who was 16 years old at the time of the offense, has established cause and prejudice to file a successive postconviction petition seeking a resentencing pursuant to the principles established in Miller v. Alabama, 567 U.S. 460 (2012). Pursuant to People v. Buffer, 2019 IL 122327, we remand for resentencing. No. 1-19-1247
¶2 Defendant Juan Meneses, age 16 at the time of the offense, appeals from
the trial court’s denial of leave to file a successive pro se petition for
postconviction relief.
¶3 The 16-year-old defendant was convicted after a jury trial of first degree
murder and two counts of attempted murder and sentenced in 1997 to a total of
60 years with the Illinois Department of Corrections.
¶4 In his petition, defendant seeks a resentencing pursuant to Miller v.
Alabama, 567 U.S. 460, 477 (2012), the case which articulated the factors a
trial court must consider before sentencing a juvenile offender such as
defendant to life in prison. On appeal, the State concedes that defendant
established cause for not raising his claim earlier but argues that defendant
failed to demonstrate prejudice. The State makes one argument concerning
prejudice: that defendant’s sentence is not a de facto life sentence as, at the time
defendant was sentenced, he was eligible for day-for-day sentencing credit. See
730 ILCS 5/3-6-3(a)(2) (West 1994).
¶5 The State acknowledges that this court has rejected its argument
numerous occasions in multiple published opinions, and that our supreme court
is expected to decide this issue shortly in a case that is pending before it. People
v. Dorsey, 2016 IL App (1st) 151124-U, petition for leave to appeal allowed,
No. 123010 (2020). The list of multiple published opinions includes: People v.
2 No. 1-19-1247
Peacock, 2019 IL App (1st) 170308, ¶ 19, People v Thornton, 2020 IL App
(1st) 170677, ¶ 22; People v. Figueroa, 2020 IL App (1st) 172390, ¶¶ 27-35;
People v. Daniel, 2020 IL App (1st) 172267, ¶¶ 21-26; People v. Quezada,
2020 IL App (1st) 170532, ¶¶ 12-18; People v. Hill, 2020 IL App (1st) 171739,
¶¶ 34-41. We decline the State’s request to find these appellate cases wrongly
decided.
¶6 The State “agree[s]” that, if we reject its argument, then “this Court need
not remand for further postconviction proceedings, but should remand for
resentencing consistent with Miller and its progeny.” As explained below,
pursuant to People v. Buffer, 2019 IL 122327, we vacate defendant’s sentence
and remand for resentencing.
¶7 BACKGROUND
¶8 Since the parties raise no issues concerning the facts established at trial or
at sentencing, we summarize them below.
¶9 The evidence at trial established that on November 8, 1994, defendant
and two fellow members of the Latin Kings confronted three members of the La
Raza, a rival street gang, in an alley on the southwest side of Chicago. During
the confrontation, defendant shot and killed Hiram Martinez, one of the three
La Raza members. At trial, defendant testified that, when he observed one of
the three La Raza members pull a handgun from his waist, defendant pulled out
3 No. 1-19-1247
his weapon and started firing while backing up. A forensic scientist testified
that the hands of one of the La Raza members tested positive for gunshot
residue. The jury found defendant guilty of Martinez’s murder and the
attempted murder of the other two La Raza members.
¶ 10 At sentencing, the trial court stated that it considered defendant’s age,
family background, and prior criminal history, including a prior armed robbery.
Although the court stated, after it announced defendant’s sentence, that it had
also considered defendant’s rehabilitative potential, it did not find that
defendant was incorrigible or without rehabilitative potential. The trial court
imposed a 60-year sentence for the murder, to run concurrently with two
concurrent 30-year sentences for the attempted murders. Defendant’s
conviction was affirmed on direct appeal. People v. Meneses, No. 1-97-3761
(Aug. 11, 1999) (unpublished pursuant to Supreme Court Rule 23).
Defendant’s first postconviction petition was dismissed at the first stage, and its
dismissal was affirmed on appeal. People v. Meneses, No. 1-00-3761 (Aug. 27,
2007) (unpublished pursuant to Supreme Court Rule 23).
¶ 11 ANALYSIS
¶ 12 In the case at bar, the trial court denied defendant leave to file a
successive pro se postconviction petition. The Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides a statutory remedy for
4 No. 1-19-1247
criminal defendants who claim their constitutional rights were violated at trial.
People v. Edwards, 2012 IL 111711, ¶ 21.
¶ 13 Although our supreme court has made clear that the Act contemplates
only one postconviction proceeding, “[n]evertheless, [the supreme] court has, in
its case law, provided two bases upon which the bar against successive
proceedings will be relaxed” (Edwards, 2012 IL 111711, ¶ 22). The two bases
are (1) cause and prejudice and (2) actual innocence. Edwards, 2012 IL 111711,
¶ 22. In the instant case, defendant alleges cause and prejudice.
¶ 14 At this early stage, when a defendant is seeking leave to file a successive
postconviction petition, he simply has to make “a prima facie showing of cause
and prejudice.” People v. Bailey, 2017 IL 121450, ¶ 24. To determine whether
a defendant has made a prima facie showing, we apply a de novo standard of
review. Bailey, 2017 IL 121450, ¶ 13. De novo consideration means that a
reviewing court performs the same analysis that a trial judge would perform.
People v. Van Dyke, 2020 IL App (1st) 191384, ¶ 41.
¶ 15 Under the cause-and-prejudice test, a defendant must establish both (1)
cause for his or her failure to raise the claim earlier and (2) prejudice stemming
from his or her failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People
v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)). The State concedes that
defendant has established the first prong. The State’s brief to this court states
5 No. 1-19-1247
that defendant claims, “and the People agree, that he established ‘cause’
because he could not bring his claim until after the United States Supreme
Court made Miller v. Alabama, 567 U.S. 460 (2012), which held that the Eighth
Amendment prohibits mandatory sentencing of life in prison for juvenile
homicide offenders like him, retroactive on collateral review in Montgomery v.
Louisiana, 136 S.Ct. 718, 736 (2016).” Defendant was sentenced in 1997, over
a decade before either Miller or Montgomery were decided.
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2021 IL App (1st) 191247-U No. 1-19-1247 Order filed March 31, 2021
FOURTH DIVISION
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 ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 94 CR 28535 03 ) JUAN MENESES, ) The Honorable ) William Raines, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Reyes and Martin concurred in the judgment.
ORDER
¶1 HELD: Defendant, who was 16 years old at the time of the offense, has established cause and prejudice to file a successive postconviction petition seeking a resentencing pursuant to the principles established in Miller v. Alabama, 567 U.S. 460 (2012). Pursuant to People v. Buffer, 2019 IL 122327, we remand for resentencing. No. 1-19-1247
¶2 Defendant Juan Meneses, age 16 at the time of the offense, appeals from
the trial court’s denial of leave to file a successive pro se petition for
postconviction relief.
¶3 The 16-year-old defendant was convicted after a jury trial of first degree
murder and two counts of attempted murder and sentenced in 1997 to a total of
60 years with the Illinois Department of Corrections.
¶4 In his petition, defendant seeks a resentencing pursuant to Miller v.
Alabama, 567 U.S. 460, 477 (2012), the case which articulated the factors a
trial court must consider before sentencing a juvenile offender such as
defendant to life in prison. On appeal, the State concedes that defendant
established cause for not raising his claim earlier but argues that defendant
failed to demonstrate prejudice. The State makes one argument concerning
prejudice: that defendant’s sentence is not a de facto life sentence as, at the time
defendant was sentenced, he was eligible for day-for-day sentencing credit. See
730 ILCS 5/3-6-3(a)(2) (West 1994).
¶5 The State acknowledges that this court has rejected its argument
numerous occasions in multiple published opinions, and that our supreme court
is expected to decide this issue shortly in a case that is pending before it. People
v. Dorsey, 2016 IL App (1st) 151124-U, petition for leave to appeal allowed,
No. 123010 (2020). The list of multiple published opinions includes: People v.
2 No. 1-19-1247
Peacock, 2019 IL App (1st) 170308, ¶ 19, People v Thornton, 2020 IL App
(1st) 170677, ¶ 22; People v. Figueroa, 2020 IL App (1st) 172390, ¶¶ 27-35;
People v. Daniel, 2020 IL App (1st) 172267, ¶¶ 21-26; People v. Quezada,
2020 IL App (1st) 170532, ¶¶ 12-18; People v. Hill, 2020 IL App (1st) 171739,
¶¶ 34-41. We decline the State’s request to find these appellate cases wrongly
decided.
¶6 The State “agree[s]” that, if we reject its argument, then “this Court need
not remand for further postconviction proceedings, but should remand for
resentencing consistent with Miller and its progeny.” As explained below,
pursuant to People v. Buffer, 2019 IL 122327, we vacate defendant’s sentence
and remand for resentencing.
¶7 BACKGROUND
¶8 Since the parties raise no issues concerning the facts established at trial or
at sentencing, we summarize them below.
¶9 The evidence at trial established that on November 8, 1994, defendant
and two fellow members of the Latin Kings confronted three members of the La
Raza, a rival street gang, in an alley on the southwest side of Chicago. During
the confrontation, defendant shot and killed Hiram Martinez, one of the three
La Raza members. At trial, defendant testified that, when he observed one of
the three La Raza members pull a handgun from his waist, defendant pulled out
3 No. 1-19-1247
his weapon and started firing while backing up. A forensic scientist testified
that the hands of one of the La Raza members tested positive for gunshot
residue. The jury found defendant guilty of Martinez’s murder and the
attempted murder of the other two La Raza members.
¶ 10 At sentencing, the trial court stated that it considered defendant’s age,
family background, and prior criminal history, including a prior armed robbery.
Although the court stated, after it announced defendant’s sentence, that it had
also considered defendant’s rehabilitative potential, it did not find that
defendant was incorrigible or without rehabilitative potential. The trial court
imposed a 60-year sentence for the murder, to run concurrently with two
concurrent 30-year sentences for the attempted murders. Defendant’s
conviction was affirmed on direct appeal. People v. Meneses, No. 1-97-3761
(Aug. 11, 1999) (unpublished pursuant to Supreme Court Rule 23).
Defendant’s first postconviction petition was dismissed at the first stage, and its
dismissal was affirmed on appeal. People v. Meneses, No. 1-00-3761 (Aug. 27,
2007) (unpublished pursuant to Supreme Court Rule 23).
¶ 11 ANALYSIS
¶ 12 In the case at bar, the trial court denied defendant leave to file a
successive pro se postconviction petition. The Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides a statutory remedy for
4 No. 1-19-1247
criminal defendants who claim their constitutional rights were violated at trial.
People v. Edwards, 2012 IL 111711, ¶ 21.
¶ 13 Although our supreme court has made clear that the Act contemplates
only one postconviction proceeding, “[n]evertheless, [the supreme] court has, in
its case law, provided two bases upon which the bar against successive
proceedings will be relaxed” (Edwards, 2012 IL 111711, ¶ 22). The two bases
are (1) cause and prejudice and (2) actual innocence. Edwards, 2012 IL 111711,
¶ 22. In the instant case, defendant alleges cause and prejudice.
¶ 14 At this early stage, when a defendant is seeking leave to file a successive
postconviction petition, he simply has to make “a prima facie showing of cause
and prejudice.” People v. Bailey, 2017 IL 121450, ¶ 24. To determine whether
a defendant has made a prima facie showing, we apply a de novo standard of
review. Bailey, 2017 IL 121450, ¶ 13. De novo consideration means that a
reviewing court performs the same analysis that a trial judge would perform.
People v. Van Dyke, 2020 IL App (1st) 191384, ¶ 41.
¶ 15 Under the cause-and-prejudice test, a defendant must establish both (1)
cause for his or her failure to raise the claim earlier and (2) prejudice stemming
from his or her failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People
v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)). The State concedes that
defendant has established the first prong. The State’s brief to this court states
5 No. 1-19-1247
that defendant claims, “and the People agree, that he established ‘cause’
because he could not bring his claim until after the United States Supreme
Court made Miller v. Alabama, 567 U.S. 460 (2012), which held that the Eighth
Amendment prohibits mandatory sentencing of life in prison for juvenile
homicide offenders like him, retroactive on collateral review in Montgomery v.
Louisiana, 136 S.Ct. 718, 736 (2016).” Defendant was sentenced in 1997, over
a decade before either Miller or Montgomery were decided. Thus, as the State
concedes, defendant has established cause.
¶ 16 With respect to prejudice, the State argues only that defendant’s 60-
year sentence was not a de facto life sentence because he was eligible for day-
for-day good-time credit. The State acknowledges that this court has repeatedly
rejected this argument. Peacock, 2019 IL App (1st) 170308, ¶ 19, Thornton,
2020 IL App (1st) 170677, ¶ 22; Figueroa, 2020 IL App (1st) 172390, ¶¶ 27-
35; Daniel, 2020 IL App (1st) 172267, ¶¶ 21-26; Quezada, 2020 IL App (1st)
170532, ¶¶ 12-18; Hill, 2020 IL App (1st) 171739, ¶¶ 34-41. This court has
written on this issue numerous times before and we adopt here what we have
said before, without repeating it. Also, this issue is pending before our supreme
court. Dorsey, 2016 IL App (1st) 151124-U, petition for leave to appeal
allowed, No. 123010 (2020). Thus, we adhere to our precedent until, and
unless, our supreme court directs otherwise.
6 No. 1-19-1247
¶ 17 In addition, the State attaches a sheet to the appendix of its brief that
purports to set forth defendant’s expected release date. If the State believed
there was a need to supplement the record on appeal, it should have moved to
do so. An appendix should be limited to documents already in the record; and
placing documents in a brief’s appendix does not make them part of the
appellate record. See People v. Carter, 2019 IL App (1st) 170803, ¶ 44 (“
‘[t]he inclusion of evidence in an appendix is an improper supplementation of
the record with information dehors the record’ ” (quoting People v. Wright,
2013 IL App (1st) 103232, ¶ 38)); Ill. S. Ct. R. 342 (eff. Oct. 1, 2019) (an
appendix may include “materials from the record that are the basis of the appeal
or pertinent to it”). “[I]f the materials are not taken from the record, they may
not generally be placed before the appellate court in an appendix and will be
disregarded.” Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 32. “This is
particularly true” when “the document that is affixed to the appendix is an
essential component” needed “to evaluate the specific argument raised” by the
party “on appeal.” Carter, 2019 IL App (1st) 170803, ¶ 44.
¶ 18 Rejecting the State’s argument as our precedent requires, we find that this
16-year-old defendant’s 60-year sentence is a de facto life sentence pursuant to
People v. Buffer, 2019 IL 122327, ¶¶ 41-42 (a prison sentence of more than 40
years imposed on a juvenile offender constitutes a de facto life sentence).
7 No. 1-19-1247
Having made that finding, we look to Buffer for further direction. In Buffer, as
in our case, the defendant raised a Miller challenge to his sentence in a
postconviction petition, claiming that his sentence was a de facto life sentence.
Buffer, 2019 IL 122327, ¶ 7. The Buffer court found 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 consider youth and its attendant characteristics in
imposing the sentence.” Buffer, 2019 IL 122327, ¶ 27. As discussed above, we
found defendant established the first prong of this test.
¶ 19 With respect to the second prong, the Buffer court found that the trial
court had not “considered defendant’s youth and its attendant characteristics”
and remanded directly for a resentencing. Buffer, 2019 IL 122327, ¶¶ 46-47
(remanded for resentencing “in the interests of judicial economy”). In the case
at bar, the State does not argue that the sentencing court “considered
defendant’s youth and its attendant characteristics” (Buffer, 2019 IL 122327, ¶
46), and so we too remand directly for resentencing.
¶ 20 As in Buffer, we vacate defendant’s sentence and remand for a new
sentencing hearing, in accord with the new statutory scheme. Our supreme
court found that “defendant is entitled on remand to be sentenced under the
8 No. 1-19-1247
scheme prescribed by section 5-4.5-105 of the United Code of Corrections.”
Buffer, 2019 IL 122327, ¶ 47 (referring to 730 ILCS 5/5-4.5-105 (West 2016)).
¶ 21 On remand, the sentencing court may impose a de facto life sentence
“ ‘only if the trial court determines that the defendant’s conduct showed
irretrievable depravity, permanent incorrigibility, or irreparable corruption
beyond the possibility of rehabilitation.’ ” People v. Lusby, 2020 IL 124046, ¶
34 (quoting People v. Holman, 2017 IL 120655, ¶ 46). The trial court may
make an appropriate sentencing decision “ ‘only after considering the
defendant’s youth and its attendant characteristics.’ ” Lusby, 2020 IL 124046, ¶
34 (quoting Holman, 2017 IL 120655, ¶ 46). The factors which it must
consider are now codified in our statutes. 730 ILCS 5/5-4.5-105 (West 2016).
Under the new scheme, firearm enhancements are no longer mandatory. 730
ILCS 5/5-4.5-105(b) (West 2016) (the sentencing court “may, in its discretion,
decline to impose any otherwise applicable sentencing enhancement based upon
firearm possession”).
¶ 22 CONCLUSION
¶ 23 For the foregoing reasons, we vacate defendant’s sentence and reverse
and remand for a new sentencing hearing, with directions.
¶ 24 Sentence vacated; remanded for resentencing, with directions.