People v. Miller

2020 IL App (1st) 170788-U

• Court: Appellate Court of Illinois
• Decided: January 10, 2020
• Docket: 1-17-0788
• Status: Unpublished

Opinion

2020 IL App (1st) 170788-U

FIFTH DIVISION January 10, 2020

No. 1-17-0788

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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 Circuit Court of ) Cook County. Respondent-Appellee, ) ) v. ) No. 00 CR 24954-02 ) FLYNARD MILLER, ) ) Honorable James Michael Obbish, Petitioner-Appellant. ) Judge Presiding.

JUSTICE DELORT delivered the judgment of the court. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in denying petitioner’s motion for leave to file a successive postconviction petition because his aggregate 53-year sentence, which was imposed when petitioner was 19 years old, is not an unconstitutional de facto life sentence. Affirmed.

¶2 Following a bench trial, petitioner Flynard Miller was convicted of first-degree murder and

attempted first-degree murder, and sentenced to consecutive prison terms of 47 and 6 years,

respectively. We affirmed on his direct appeal (People v. Miller, No. 1–04–0114 (2005)

(unpublished order pursuant to Supreme Court Rule 23)), the summary dismissal of his initial

postconviction petition (People v. Miller, 393 Ill. App. 3d 629 (2009)), and the denial of two No. 1-17-0788

subsequent motions for leave to file a successive postconviction petition (People v. Miller, 2013

IL App (1st) 111147); People v. Miller, 2016 IL App (1st) 141101-U). Petitioner filed a motion

for leave to file a third successive postconviction petition, which the circuit court denied. He now

appeals that denial, contending that his aggregate sentence is an unconstitutional de facto life

sentence. We affirm.

¶3 BACKGROUND

¶4 Petitioner and Joseph Eastling were charged with the first-degree murder of Charles Fowler

(by personal discharge of a firearm proximately causing his death), and the attempted murder and

aggravated battery with a firearm of Michael Casiel, on or about September 16, 2000.

¶5 The trial evidence showed that the incident began when petitioner and Fowler bumped into

each other at the apartment Fowler shared with Molina Matthews, Fowler’s fiancée and the mother

of Eastling’s child. Fowler left his apartment after the bumping but returned with three friends,

including Casiel and Anthony Hendrix, to support him in removing petitioner and Eastling from

his apartment. Matthews, Casiel, and Hendrix testified that neither Fowler nor his friends were

armed. Fowler entered his apartment while his friends stayed in the hallway. Petitioner and

Eastling drew their guns, and petitioner fired at Fowler. Fowler and his friends fled, with petitioner

and Eastling in pursuit and still firing. Casiel heard six or seven additional shots. Fowler was

holding onto Casiel but collapsed near the doorway of the building.

¶6 Petitioner continued the chase, firing at Casiel and the others, and striking Casiel. Chicago

police officer Ephgrave saw petitioner’s pursuit and shooting, did not see Casiel holding a gun,

and did not see a gun near Fowler’s body. Petitioner and Eastling fled but were arrested at the

scene. Officer Ephgrave saw each drop or try to “ditch” a gun. A bullet recovered from a wall of

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the apartment was fired from petitioner’s gun, and a bullet removed from Fowler’s body was fired

from Eastling’s gun. An autopsy of Fowler revealed five gunshot wounds.

¶7 Petitioner testified that Fowler had a gun in his waistband when he entered the apartment.

Petitioner claimed that he fired into the wall in self-defense to scare off Fowler and that he was

intentionally firing at the walls or the ground as he chased Fowler and the others.

¶8 The court found petitioner guilty of first-degree murder, attempted murder, and aggravated

battery with a firearm, finding that he personally discharged a firearm that proximately caused

death. He was sentenced to 47 years’ imprisonment for murder, including a 25-year firearm

enhancement, consecutive to 6-year terms for the other two offenses. Codefendant Eastling was

also convicted of first-degree murder and attempted murder, and sentenced to 47 and 6 years’

imprisonment, respectively.

¶9 On direct appeal, petitioner challenged the firearm enhancement on various grounds and

contended that he was not properly admonished regarding his right to file a motion to reconsider

his sentence. We affirmed, except for vacating certain duplicate murder convictions and the

aggravated battery conviction under the one-act-one-crime doctrine. Miller, No. 1-04-0114 (2005)

(unpublished order under Supreme Court Rule 23). We noted that the evidence indicated that

defendant admitted having fired his weapon “at least four times.” Id., slip op. at 10.

¶ 10 In 2006, petitioner filed a pro se postconviction petition arguing in part that his pretrial

counsel failed to inform him that, if he did not accept a plea offer and was later found guilty, he

would be subject to a firearm enhancement (“the lost-plea claim”). The circuit court summarily

dismissed the petition, and we affirmed. Miller, 393 Ill. App. 3d 629.

¶ 11 In 2011, petitioner filed a pro se motion for leave to file a successive postconviction

petition, which included in part the lost-plea claim and various other claims based upon a witness’s

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attached affidavit. The court denied the motion, and we affirmed based on res judicata and

petitioner’s failure to show cause and prejudice. Miller, 2013 IL App (1st) 111147.

¶ 12 In November 2013, petitioner filed a pro se motion for leave to file a second successive

postconviction petition. He again raised the lost-plea claim, as well as claims of newly discovered

evidence of actual innocence, ineffective assistance of trial counsel, and the State’s failure to

disclose exculpatory evidence of a witness who would have corroborated his self-defence claim.

The court denied the motion, and we affirmed. Miller, 2016 IL App (1st) 141101-U.

¶ 13 On September 26, 2016, petitioner sought leave to file a third successive postconviction

petition. For the first time, petitioner contended that his 53-year aggregate sentence was an

unconstitutional de facto life sentence pursuant to the holdings in Miller v. Alabama, 567 U.S. 460

(2012), and its progeny. 1 Petitioner noted that he was sentenced as a 19-year-old young adult and

argued that newly discovered evidence in neurobiology and developmental psychology “proved”

that brain development does not stop until a person reaches the “mid-20’s.” He then concluded

that, since “the brains of young adults are no more developed then [sic] a juvenile[’]s brain, he was

entitled to “Miller v. Alabama[-]type protection,” and his sentence violated both (1) the

proportionate penalties clause of the Illinois constitution as applied to him and (2) the Eighth

Amendment of the federal constitution. Petitioner added that he showed cause for his failure to

raise this claim in his initial petition and prejudice resulting from this failure. As to cause,

petitioner argued that the newly discovered “neuroscience” as well the decisions such as People v.

House, 2015 IL App (1st) 110580, and People v. Harris, 2016 IL App (1st) 141744, arose after

1 Petitioner further challenged the constitutionality of the “automatic transfer statute” (705 ILCS 405/5-130 (West 2016)), but he has abandoned that claim on appeal. 4 No. 1-17-0788

the filing of his initial and successive petitions. Petitioner argued that he suffered prejudice

because his 53-year sentence was unconstitutional in light of this new evidence and case law.

¶ 14 On February 24, 2017, the circuit court entered a written order denying petitioner’s motion

for leave to file his third successive postconviction petition. The court found that “Miller and its

related cases” are unhelpful to petitioner because they are applicable to juveniles and petitioner

was 19 years of age at the time of the offense. The court further found that House and Harris were

factually distinguishable, namely, that the defendant in House was merely a “lookout rather than

*** directly responsible for the murder,” and the defendant in Harris would be released no earlier

than age 89, whereas petitioner would be released at age 71. 2 This appeal followed.

¶ 15 ANALYSIS

¶ 16 Petitioner contends that the circuit court erred in denying his motion for leave to file a third

successive postconviction petition. Petitioner argues that the court’s ruling improperly disregarded

the “evolving body of law” that shows “growing disapproval for de facto life sentences for

youthful offenders.” Petitioner states that his motion met the cause-and-prejudice test for

obtaining leave to file a successive postconviction petition, and he asks that we either vacate his

sentence and remand for new sentencing, or in the alternative, reverse the court’s denial and

remand this cause for further postconviction proceedings.

¶ 17 The Act allows a defendant to challenge a conviction or sentence for violations of federal

or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). An action for

postconviction relief is a collateral proceeding rather than an appeal from the underlying judgment.

People v. Williams, 186 Ill. 2d 55, 62 (1999). Principles of res judicata and waiver will limit the

2 The circuit court’s order erroneously calculated petitioner’s age upon release as 74. 5 No. 1-17-0788

range of issues available to a postconviction petitioner “ ‘to constitutional matters which have not

been, and could not have been, previously adjudicated.’ ” People v. Scott, 194 Ill. 2d 268, 273-74

(2000) (quoting People v. Winsett, 153 Ill. 2d 335, 346 (1992)). Accordingly, rulings on issues

that were previously raised at trial or on direct appeal are res judicata, and issues that could have

been raised in the earlier proceedings, but were not, will ordinarily be deemed waived. Id. at 274;

725 ILCS 5/122-3 (West 2016).

¶ 18 Moreover, the Act provides that only one petition may be filed by a petitioner without leave

of court. 725 ILCS 5/122-1(f) (West 2016). As a result, successive postconviction petitions are

“highly disfavored.” People v. Bailey, 2017 IL 121450, ¶ 39. The granting of leave to file a

successive petition is defined in terms of the cause-and-prejudice test, where cause is defined as

some objective factor external to the defense that impeded efforts to raise the claim in an earlier

proceeding, and prejudice occurs where the alleged error “so infected” the trial that the resulting

conviction or sentence violates due process. Id. ¶ 14 (quoting 725 ILCS 5/122-1(f) (West 2014)).

¶ 19 To meet the cause-and-prejudice test for a successive petition, a petitioner must “ ‘submit

enough in the way of documentation to allow a circuit court to make that determination.’ ” People

v. Smith, 2014 IL 115946, ¶ 35 (quoting People v. Tidwell, 236 Ill. 2d 150, 161 (2010)). Both

elements of the cause-and-prejudice test must be met for the petitioner to prevail. People v.

Pitsonbarger, 205 Ill. 2d 444, 464 (2002). The cause-and-prejudice test is a “more exacting

standard” than the “ ‘gist’ standard” under which initial postconviction petitions are reviewed.

People v. Conick, 232 Ill. 2d 132, 142 (2008). We review de novo the circuit court’s denial of

leave to file a successive petition. People v. Jackson, 2016 IL App (1st) 143025, ¶ 32.

¶ 20 Petitioner first contends that Miller, which held that the Eighth Amendment prohibited

mandatory life sentences for offenders under the age of 18, should nonetheless extend to young

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adult offenders such as himself. Petitioner argues that the circuit court should not have imposed a

53-year “de facto life sentence” on him without considering various “youth-related factors.”

¶ 21 Petitioner’s claim is unavailing. Miller explicitly held that the Eighth Amendment only

prohibits “mandatory life without parole for those under the age of 18” at the time of their crimes.

(Emphasis added.) Miller, 567 U.S. at 465. Our supreme court later observed that, when the

United States Supreme Court held that 18 would be the age to differentiate between juvenile and

adult offenders, it was not “based primarily on scientific research” and merely coincided with the

point where society determines adulthood and childhood for many other purposes. People v.

Harris, 2018 IL 121932, ¶ 60 (citing Roper v. Simmons, 543 U.S. 551, 574 (2005)). The Harris

court further noted that new research findings still did not alter that “traditional line.” Id. The

court then expressed agreement with those courts that had repeatedly rejected this claim and held

that the age of 18 still marked the line between juveniles and adults for sentencing purposes.

Id. ¶ 61. Petitioner would clearly wish to change where that line is drawn, but doing so is best left

to the legislature. See generally, People v. Buffer, 2019 IL 122327, ¶¶ 34-35.

¶ 22 Moreover, petitioner’s reliance upon People v. House, 2015 IL App (1st) 110580, does not

alter our holding. As the State points out, House involved a challenge under the proportionate

penalties clause of the Illinois constitution, not the Eighth Amendment of the federal constitution.

Id. ¶ 1. House is therefore inapplicable, and we must reject petitioner’s claim.

¶ 23 Petitioner next contends that his sentence violates the proportionate penalties clause of the

Illinois constitution. This clause provides in relevant part that “All 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. A sentence violates the proportionate penalties

clause if it is “cruel, degrading, or so wholly disproportionate to the offense as to shock the moral

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sense of the community.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005) (citing People v. Moss,

206 Ill. 2d 503, 522 (2003)). We may determine whether a sentence shocks the moral sense of the

community by considering both objective evidence and “the community’s changing standard of

moral decency.” People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008).

¶ 24 Petitioner argues that his sentence shocks the moral conscious of the community because

of recent studies on adolescent brain development, various studies on prisoner life expectancy, and

petitioner’s history and rehabilitative potential. Petitioner also argues that, pursuant to our

supreme court’s holding in Harris, his petition must advance for further proceedings.

¶ 25 The 18-year-old defendant in Harris argued on direct appeal that his 76-year sentence

shocked the moral sense of the community given the facts of his case, his youth, and other

mitigating circumstances. Harris, 2018 IL 121932, ¶ 36. The court, however, noted that there

was no evidentiary hearing or factual development to support the defendant’s claim in the trial

court. Id. ¶ 46. The court thus held that the record was insufficiently developed to address his

contention that Miller applied to his proportionate penalties claim. Id. ¶ 48. Nonetheless, the

Harris court observed that the defendant could raise the claim in a postconviction petition. Id.

¶ 26 Here, petitioner argues that he should have the opportunity to develop the record to

determine whether the protections of Miller can apply to a 19-year-old offender. Successive

postconviction petitions, however, are “highly disfavored” (Bailey, 2017 IL 121450, ¶ 39) and

meeting the cause-and-prejudice test is “more exacting standard” than the test for surviving the

first stage of an initial postconviction petition (Conick, 232 Ill. 2d at 142). In addition, a petitioner

must submit enough documentation to allow a circuit court to determine whether the cause-and-

prejudice test was met. Smith, 2014 IL 115946, ¶ 35 (quoting Tidwell, 236 Ill. 2d at 161). The

Harris court did not specify the requirements to meet the cause-and-prejudice test.

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¶ 27 In this case, there is nothing to indicate how petitioner’s own immaturity or individual

circumstances would provide a compelling reason to allow him to file a third successive

postconviction petition; instead, his motion merely contains general assertions that immaturity and

brain development commonly associated with juveniles can also extend into young adulthood.

Petitioner’s recitation of various studies regarding the evolving science of juvenile maturity and

development is insufficient to survive the more exacting standard that would warrant the filing of

a successive postconviction petition. People v. Holman, 2017 IL 120655, ¶¶ 30 (citing People v.

Thompson, 2015 IL 118151). The circuit court therefore correctly denied petitioner’s motion

because he could not establish prejudice under the cause-and-prejudice test.

¶ 28 In addition, petitioner’s reliance upon House is unavailing. In that case, another division

of this court held that the defendant’s mandatory life sentence (following a conviction for murder

by accountability) violated the proportionate penalties clause, where the defendant was 19 years

old at the time of the offense, had no prior violent criminal history, and was minimally culpable

since he acted solely as a lookout. House, 2019 IL App (1st) 110580-B, ¶¶ 46, 64. Moreover, the

House court stated that the defendant’s 1993 conviction under an accountability theory “weighed

heavily in our conclusion that his mandatory natural life sentence shocked the moral conscience

of the community.” Id. ¶ 32. The court further noted that, although the defendant received a

mandatory natural life sentence, the 17-year-old codefendant, who “either fired the gun at the

victims or struck them with the gun,” was sentenced to 44 years’ imprisonment with day-for-day

good conduct credit and released in April 2018. Id. ¶¶ 35-36.

¶ 29 Here, petitioner was not convicted merely based upon accountability: he was one of two

active shooters, and witness testimony established that, after the initial round of shooting and the

victim’s flight from the scene, petitioner continued to chase the victim and his associates while

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firing at him. Fleeing witnesses heard six or seven shots, and the murdered victim was riddled

with five gunshot wounds. As we noted in a prior appeal, defendant’s 47-year sentence for first-

degree murder comprised a 22-year sentence, which was near the minimum term of 20 years, and

a mandatory 25-year firearm add-on. Miller, 393 Ill. App. 3d 640. His six-year sentence for

attempted murder was the minimum permissible sentence. See 720 ILCS 5/8-4 (West 2000); 730

ILCS 5/5-8-1(a)(3) (West 2000). In addition, codefendant Eastling received the same sentence for

his convictions for first-degree murder and aggravated battery. On these facts, House is

distinguishable, and we cannot hold that petitioner’s sentence shocks the moral sense of the

community.

¶ 30 Finally, petitioner states in his reply brief that the State conceded in an unrelated case

(People v. Thompson, No. 1-16-2596, on remand from our supreme court in People v. Thompson,

2015 IL 118151) that a defendant should be allowed to file his successive postconviction despite

the absence of specific details as to that defendant’s brain development. Petitioner argues that the

State has “ignore[d] its prior concession.” We question the timing of this argument. According

to petitioner, the State’s purported concession was filed in November 2018, which was one month

before his opening brief. Petitioner, however, neglected to raise this point until the filing of his

reply brief. Moreover, in Thompson, the defendant was convicted of fatally shooting his father—

described by multiple defense witnesses as “a violent and abusive alcoholic”—following a “long

history of physical and mental abuse.” Thompson, 2015 IL 118151, ¶¶ 4-6. Thompson involved

a different defendant, a different occurrence, and a different set of facts. Most importantly, the

State agreed to the disposition in that case, so this court did not have the opportunity to address

the issue on the merits. This final argument is thus meritless.

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¶ 31 CONCLUSION

¶ 32 The circuit court did not err in denying petitioner’s motion for leave to file a successive

postconviction petition because his 53-year sentence, which was imposed when petitioner was 19

years old, is not an unconstitutional de facto life sentence. Accordingly, we affirm the judgment

of the circuit court.

¶ 33 Affirmed.