2021 IL App (1st) 171384-U
SIXTH DIVISION January 22, 2021
No. 1-17-1384
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 Plaintiff-Appellee, ) Circuit Court of Cook County. ) v. ) 96 CR 123 ) RICHARD MORRIS, ) Honorable Erica L. Reddick, ) Judge Presiding. Defendant-Appellant. )
JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Mikva and Justice Johnson concurred in the judgment.
ORDER
¶1 Held: The first-stage summary dismissal of petitioner’s pro se petition for postconviction relief is affirmed, where his claim that the 105-year sentence imposed for the offense he committed at age 22 violated the proportionate penalties clause of the Illinois Constitution and the eighth amendment of the United States Constitution had no arguable basis in law or in fact.
¶2 Petitioner, Richard Morris, appeals from the first-stage dismissal of his pro se petition for
postconviction relief. After a jury trial, petitioner, age 22, was convicted of first-degree murder,
aggravated vehicular hijacking, and aggravated kidnapping. He was sentenced to death. On
direct appeal to the Illinois Supreme Court, his convictions were reversed, and the matter was No. 1-17-1384
remanded for a new trial. People v. Morris, 209 Ill. 2d 137 (2004). Petitioner was convicted
again on retrial in 2006, and sentenced to consecutive terms of 60 years for first-degree murder,
30 years for aggravated vehicular hijacking, and 15 years for aggravated kidnapping. Petitioner
claimed in his pro se petition that his 105-year 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 claimed that pursuant to People v.
House, 2015 IL App (1st) 110580, the holdings in Roper v. Simmons, 543 U.S. 551 (2005),
Miller v. Alabama, 567 U.S. 460 (2012), and Adams v. Alabama, 136 S. Ct. 1796 (2016), were
“now applicable to ‘young adults’, 18 years of age to 25.” The trial court summarily dismissed
his petition. For the following reasons, we affirm the trial court’s summary dismissal of
defendant’s pro se postconviction petition.
¶3 I. BACKGROUND
¶4 In 1998, petitioner was found guilty of the first-degree murder, aggravated vehicular
hijacking, and aggravated kidnapping of Ervin Shorter. At the time of the offenses, petitioner
was 22 years old. He was sentenced to death. On direct appeal to the Illinois Supreme Court, his
convictions were reversed and the matter was remanded for a new trial. People v. Morris, 209 Ill.
2d 137 (2004).
¶5 Petitioner was convicted again on retrial in 2006 and sentenced to consecutive terms of
60 years for first-degree murder, 30 years for aggravated vehicular hijacking, and 15 years for
aggravated kidnapping. As the trial evidence is not at issue, we summarize only those facts
necessary to an understanding of the issues raised in this appeal.
¶6 In a handwritten statement, petitioner stated that he and his accomplices discussed
robbing a bank the night before the murder to obtain money for petitioner to leave the area and
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live with his uncle in Atlanta. They targeted the victim because they thought he was a drug
dealer. Petitioner stated that he was armed with a firearm, that he carjacked the victim and forced
the victim into the trunk of the victim’s car. Petitioner and his accomplices eventually pulled into
an alley, ordered the victim out of the trunk, told him to get on the ground, and shot him twice in
the head as he begged for his life.
¶7 At petitioner’s sentencing hearing, the State argued that petitioner should receive the
maximum sentence for each of the crimes he committed, resulting in an aggregate sentence of
105 years in prison. The State argued that petitioner’s extensive criminal background warranted
the requested sentence.
¶8 In mitigation, defense counsel stated that petitioner “wasn’t a child” when he committed
the crimes, but that he “never had a childhood.” Defense counsel stated that the person that
committed the crimes in 1995 was a different person, and that he wanted to go to college and law
school.
¶9 The trial court then stated:
“When I look at factors in aggravation, as in all cases, the facts of the case
are always significant and loom high. And if I had to summarize this, what
happened here, it would be fairly simple. [Petitioner] from the evidence was the
moving force in a plan to rob or steal from banks, drug dealers or anybody. That
plan mistakenly focused upon a regular guy, a working man, simply a citizen
minding his own business on his way home, forced into his car at gun point, into
the trunk of the vehicle, kidnapped, driven to the south side of the – north side of
the city, removed from his own car, then shot to death by [petitioner]. I think the
evidence clearly reflects that.
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What this was clear and simple was an execution. There is a murder case
pending. I’m not going to consider that in aggravation. There is other ample
aggravation commented upon by the State within the presentence report.
Experiences with the law at a younger age, a much younger age both in northern
Illinois, Zion, and in Wisconsin, sawed-off shotgun, escape charges, misdemeanor
charges as well. There is the factor of deterrence, [petitioner] as well as others
similarly situated who might choose to emulate his conduct, follow in his
footsteps.
I have read and listened to matters in mitigation now and some years ago.
His formative years were not pleasant. He was raised by his mother. He was
abandoned by his father at an early age. That we know. He lived in an unstable
environment. Drugs. Violence, without the benefit of a nurturing home. His
problems in school developed by adolescence; yet today he does have an
equivalency, a GED for high school. And he enjoyed some sporadic employment
over the years.
It appears from his testimony and from his presentence report that his
major source of livelihood was illegal employment, drug selling. And there is
evidence of abuse of alcohol, drugs.
I cannot say from this entire record that one could conclude that serious
bodily harm or injury was neither intended nor caused. Obviously death is the
ultimate form. And while that is implicit in all homicides, the manner of death
may be a considered by the court and a factor.
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Obviously the facts of this case are lacking any provocation, justification,
excuse, any reasonable explanation. All the explanations are unreasonable. Nor
could I say that the circumstances depicted by what occurred, albeit some years
ago, would not recur if [petitioner] was again to be placed among civilized
members of the society within the near and coming future.
The range of sentence as we know and has been highlighted is substantial.
It could have been more given other circumstances. It will be the judgment of this
court as to Count I, [petitioner] will be remanded to the custody of the
Department of Corrections for a determinate sentence of 60 years. Count XIV,
aggravated vehicular hijacking, the court will impose a consecutive sentence of 30
years. Count XXVI, the charge of aggravated kidnapping, the court will impose a
sentence of 15 years consecutive, a total of 105 years.”
¶ 10 Petitioner appealed his conviction and sentence to this court. People v. Morris, No. 1-06-
3474 (March 27, 2009) (unpublished order pursuant to Illinois Supreme Court Rule 23). On
appeal, he argued that the trial court erred in allowing his prior trial testimony to be admitted at
his second trial, that the prosecutor committed error during closing and rebuttal argument, and
that the imposition of consecutive sentences was improper. This court affirmed the judgment of
the trial court. Id.
¶ 11 On August 29, 2016, petitioner filed a motion to vacate his conviction as void. Because
petitioner did not cite to any statutory authority for filing the motion, the trial court characterized
petitioner’s motion as a petition for relief from judgment pursuant to section 2-1401 of the
Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2018)). In his motion, petitioner
alleged the trial court improperly admitted his prior trial testimony at his retrial, and improperly
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imposed consecutive sentences. The trial court found that the claims were barred by res judicata
because petitioner had raised these same claims on direct appeal.
¶ 12 On February 15, 2017, petitioner filed a pro se petition for postconviction relief.
Defendant contended in his petition that his sentence was a de facto life sentence and
unconstitutional pursuant to: People v. House, 2015 IL App (1st) 110580, Roper v. Simmons, 543
U.S. 551 (2005), Miller v. Alabama, 567 U.S. 460 (2012), Adams v. Alabama, 136 S. Ct. 1796
(2016), the eighth and fourteenth amendments to the United States Constitution (U.S. Const.,
amends VIII, XIV), and article 1 sections 2 and 11 of the Illinois Constitution (Ill. Const. 1970,
art. I, §§ 2, 11). Petitioner claimed that the “basis of the claim was not available to him until
People v. House was decided.” Petitioner stated that as “a result of Miller and Montgomery,
states must now ensure that prisoners serving sentences of life without the possibility of parole or
recently ‘de facto life’ for offenses committed before the age of 18 have the benefit of an
individualized sentencing procedure that considers their youth and immaturity at the time of the
offense.”
¶ 13 Petitioner contended in his petition that “all juvenile cases handed down by the U.S.
Supreme Court, specifically Roper, Miller, and Adams, are now applicable to ‘young adults’ 18
years of age to 25 as announced in People v. House, 2015 IL App (1st) 110580.” Petitioner
claimed that this court in House held that the tenets of Miller “are now available to ‘young
adults,’ announcing a new rule.” Petitioner concluded that his “de facto” life sentence was
therefore unconstitutional “pursuant to Miller, Montgomery, Adams, and House, and Eighth
Amendment U.S. Constitution; Article 1 sections 2 and 11 of the Illinois Constitution, and thus
violates his substantive rights to due process.”
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¶ 14 On April 21, 2017, the trial court entered a written order on petitioner’s pro se petition
for postconviction relief. The trial court noted that the court in House found a violation of the
proportionate penalties clause as applied to that defendant based on his particular circumstances
including the defendant being “19 years and 2 months *** barely a legal adult and still a
teenager,” his unique family background, and his involvement as a lookout rather than an active
participant in the crime.” The trial court found that House was distinguishable from the case at
hand because here petitioner was 22 years old at the time he committed the offense, and not
“barely a legal adult” nor a teenager. The trial court found that the issues raised in petitioner’s
pro se postconviction petition were frivolous and patently without merit and dismissed the
petition. Petitioner now appeals.
¶ 15 II. ANALYSIS
¶ 16 On appeal, petitioner contends that the trial court erred in its first-stage, summary
dismissal of his pro se postconviction petition because he set forth a nonfrivolous, arguable
claim that his sentence of 105 years’ imprisonment for crimes committed when he was 22 years
old was unconstitutional. 1
¶ 17 A. Post-Conviction Hearing Act
¶ 18 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)),
“provides a statutory remedy to a criminal defendant whose federal or state constitutional rights
were substantially violated at trial or sentencing.” People v. Dupree, 2018 IL 122307, ¶ 28. A
postconviction proceeding is a collateral attack on a prior conviction that is limited to
constitutional matters that were not and could not have been previously adjudicated. People v.
1 While defendant states in the “Nature of the Case” section of his brief that he is appealing the trial court’s order summarily dismissing his pro se postconviction petition and sua sponte dismissing his pro se section 2-1401 petition for relief from judgment, his brief makes no mention of the section 2-1401 petition, and thus any argument related to that petition is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (points not argued are forfeited).
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Morris, 236 Ill. 2d 345, 354 (2010). An action for postconviction relief is initiated in the circuit
court in which the original proceeding took place. People v. Tate, 2012 IL 112214, ¶ 8.
¶ 19 A postconviction proceeding involves three stages. This case is at the first stage, in which
the trial court independently reviews the petition “without input from the State, and determine[s]
whether it is ‘frivolous or is patently without merit.’ ” People v. Johnson, 2018 IL 122227, ¶ 14
(quoting 725 ILCS 5/122-2.1(a)(2) (West 2018)). “At the first stage of postconviction
proceedings there are no hearings, no arguments, and no introduction of evidence. Instead, there
is only a pleading, the postconviction petition, that the circuit court must independently consider
to determine whether it is frivolous or patently without merit.” Id. ¶ 21. A petition should be
summarily dismissed under this standard “only if the petition has no arguable basis either in law
or in fact.” People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). “A petition lacks an arguable basis in
law when it is grounded in ‘an indisputable meritless legal theory,’ for example, a legal theory
which is completely contradicted by the record.” Morris, 236 Ill. 2d at 354 (quoting Hodges, 234
Ill. 2d at 16-17). “[A] petition alleging nonfactual and nonspecific assertions that merely amount
to conclusions will not survive summary dismissal under the Act.” Id.
¶ 20 At the first stage, “[t]he allegations of the petition, taken as true and liberally construed,
need only present the gist of a constitutional claim.” People v. Brown, 236 Ill. 2d 175, 184
(2010) (citing People v. Harris, 224 Ill. 2d 115, 126 (2007)). A petitioner need only present a
limited amount of detail and is not required to include legal argument or citation to legal
authority. Id. “A pro se petitioner is not excused, however, from providing any factual detail
whatsoever on the alleged constitutional deprivation.” Id. (citing People v. Delton, 227 Ill. 2d
247, 254 (2008)). In considering the petition, the trial court may examine the court file of the
criminal proceeding, any transcripts of the proceeding, and any action taken by an appellate
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court. 725 ILCS 5/122-2.1(c) (West 2018). The summary dismissal of a postconviction petition
is reviewed de novo. Tate, 2012 IL 112214, ¶ 10.
¶ 21 A petition that is not subject to summary dismissal advances to the second stage, where
counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4 (West 2016). After counsel
determines whether to amend the petition, the State may file either a motion to dismiss or an
answer to the petition. 725 ILCS 5/122-5 (West 2016). At the second stage, the trial court must
determine “whether the petition and any accompanying documentation make a substantial
showing of a constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 246 (2001).
¶ 22 If the defendant makes a “substantial showing” at the second stage, then the petition
advances to a third-stage evidentiary hearing. People v. Domagala, 2013 IL 113688, ¶ 34. At a
third-stage evidentiary hearing, the trial court acts as factfinder, determining witness credibility
and the weight to be given particular testimony and evidence and resolving any evidentiary
conflicts. Id.
¶ 23 B. Eighth Amendment
¶ 24 Petitioner’s first argument is that his sentence is facially unconstitutional under the eighth
amendment of the United States Constitution (U.S. Const., amend VIII). “The Eighth
Amendment’s prohibition of cruel and unusual punishment ‘guarantees individuals the right not
to be subjected to excessive sanctions.’ ” Miller v. Alabama, 567 U.S. 460, 469 (2012) (quoting
Roper v. Simmons, 543 U.S. 551, 560 (2005)). The United States Supreme Court has explained
that that right “flows from the basic ‘precept of justice that punishment for crime should be
graduated and proportioned’ to both the offender and the offense.” Miller, 567 U.S. at 469
(quoting Roper, 543 U.S. at 560). “The concept of proportionality is central to the Eighth
Amendment.” Graham v. Florida, 560 U.S. 48, 59 (2010). “And we view that concept less
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through a historical prism that according to ‘ “the evolving standards of decency that mark the
progress of a maturing society.” ’ ” Miller, 567 U.S. at 469 (quoting Estelle v. Gamble, 429 U.S.
97, 102 (1976), quoting Trop v. Dulles, 356 U.S. 86, 101 (1958 )).
¶ 25 In Miller, 567 U.S. at 465, the United States Supreme Court found that mandatory life
without parole for offenders under 18 years old violated the eighth amendment. The Illinois
Supreme Court has since found that the reasoning of “Miller applies to discretionary sentences as
well.” People v. Holman, 2017 IL 120655, ¶ 40; People v. Buffer, 2019 IL 122327, ¶ 27. Our
supreme court found that the key issue is not whether the sentence was mandatory or
discretionary but whether a certain process was followed – namely, a sentencing hearing where
youth and its attendant characteristics were considered. Holman, 2017 IL 120655, ¶¶ 37-38.
Thus, life sentences for offenders under 18 years old, whether mandatory or discretionary,
violate the eighth amendment if the trial court failed to specifically consider “some variant of the
Miller factors.” Holman, 2017 IL 120655, ¶¶ 40, 43-44.
¶ 26 In the case at bar, petitioner’s 105-year sentence, if applied to a juvenile, would be
considered a de facto life sentence. However, the 22-year-old petitioner was well over 18 years
old and, thus, not a juvenile offender. It is well-established that offenders who are 18 years and
older cannot raise a facial challenge to their sentences under the eighth amendment and the
Miller line of cases. People v. Harris, 2018 IL 121932, ¶¶ 59-61 (rejecting a facial challenge
under the eighth amendment to a life sentence for an offender over 18 years old but under 21
years old, noting “the age of 18 marks the present line between juvenile and adults”). Since
petitioner was 22 years old at the time of his crime, he cannot avail himself of the eighth
amendment. People v. Carrion, 2020 IL App (1st) 171001, ¶ 28.
¶ 27 C. Proportionate Penalties Clause
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¶ 28 Defendant further maintains that his sentence violates the proportionate penalties clause
of the Illinois Constitution, 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. 1, § 11. A sentence violates the proportionate penalties
clause “if the punishment for the offense is cruel, degrading, or so wholly disproportionate to the
offense as to shock the moral sense of the community.” People v. Miller, 202 Ill. 2d 328, 338
(2002). “The purpose of the proportionate penalties clause is to add a limitation on penalties
beyond those provided by the eighth amendment and to add the objective of restoring the
offender to useful citizenship.” People v. Minniefield, 2020 IL App (1st) 170541, ¶ 35. Thus, the
proportionate penalties clause goes further than the eighth amendment in offering protection
against oppressive penalties. Id.
¶ 29 We begin by briefly addressing the United States Supreme Court’s decision in Miller,
which held that “mandatory life without parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ”
Miller, 567 U.S. at 465. The Court held that “children are constitutionally different from adults
for purposes of sentencing.” Id. at 471. The Court recognized three significant characteristics of
juvenile offenders: (1) their lack of maturity and a fully developed sense of responsibility, which
leads to dangerous behavior that is careless, impulsive, and reckless; (2) juveniles are more
vulnerable to negative influences and outside pressures, they have limited control over their own
environment, and they lack the ability to extricate themselves from crime-producing settings; and
(3) juveniles are more capable of change than adults, and their actions are less likely to be
evidence of irretrievably depravity. Id. While opining that “appropriate occasions for sentencing
juveniles to this harshest possible penalty will be uncommon,” the Court stated that “we do not
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foreclose a sentencer’s ability to make that judgment in homicide cases,” but “a judge or jury
must have the opportunity to consider mitigating circumstances before imposing the harshest
possible penalty for juveniles.” Id. at 479.
¶ 30 The Court explained that its holding in Miller was that life imprisonment without parole
is unconstitutional for “juvenile offenders whose crimes reflect the transient immaturity of
youth,” except for “the rare juvenile offender whose crime reflects irreparable corruption.”
Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016) citing Miller, 567 U.S. at 479-80).
Accordingly, to separate those juveniles who may be sentenced to life without parole from those
who may not, a hearing is required at which the sentencing court must “consider a juvenile
offender’s youth and attendant circumstances before determining that life without parole is a
proportionate sentence.” Id. at 734-35.
¶ 31 The Illinois Supreme Court has held that the sentencing protections of Miller apply not
only to sentences of mandatory life imprisonment without parole, but also to de facto life
sentences imposed on juvenile offenders (People v. Reyes, 2016 IL 119271, ¶ 9), which is a
sentence that is over 40 years in prison (Buffer, 2019 IL 122327, ¶¶ 40-41). To prevail on a claim
based on Miller and its progeny, “a defendant sentenced to 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 (citing Holman,
2017 IL 120655, ¶ 40; Reyes, 2016 IL 119271, ¶ 9).
¶ 32 Our supreme court has since been presented with the argument that the Miller protections
extend to offenders who commit offense after they turn 18 years old. In People v. Thompson,
2015 IL 118151, ¶ 39, the court declined to allow a defendant who committed murders at age 19
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to argue on appeal from a dismissal of a section 2-1401 petition that his mandatory life sentence
was unconstitutional pursuant to Miller, because defendant had not asserted this claim in the trial
court. The court stated that a postconviction petition was an avenue by which the defendant
could attempt to assert his constitutional claim in the trial court, but it declined to express an
opinion on the merits of such a claim. Id. ¶ 44.
¶ 33 In Harris, 2018 IL 121932, the supreme court addressed a direct appeal by a defendant
who had been 18 years and 3 months old at the time of the offenses giving rise to his convictions
for first-degree murder, attempted first-degree murder, and aggravated battery with a firearm. He
argued that his mandatory aggregate sentence of 76 years violated the proportionate penalties
clause and the eighth amendment as applied to him. The appellate court held that the defendant’s
sentence violated the proportionate penalties clause, but the supreme court reversed. Id. ¶ 34-48.
It stated that the defendant was presenting an “as-applied” constitutional challenge to his
sentence rather than a “facial” challenge, but his failure to raise this challenge in the trial court
meant that the trial court had neither held an evidentiary hearing nor made findings “on the
critical facts needed to determine whether Miller applies to defendant as an adult.” Id. ¶ 46. The
supreme court noted 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. The supreme court held that
the defendant’s as-applied challenge under the proportionate penalties clause was premature, and
one that would be more appropriately raised in postconviction proceedings. Id. The supreme
court, did, however, reject the defendant’s facial challenge to his sentence under the eighth
amendment, recognizing, as discussed above, that the age of 18 marked the line separating
juveniles and adults for purposes of the eighth amendment. Id. ¶¶ 49-61.
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¶ 34 In People v. House, 2019 IL App (1st) 110580-B, pet. for leave to appeal granted, No.
125124 (Jan. 29, 2020), which was issued after the supreme court directed this court to
reconsider its earlier 2015 opinion in light of Harris, this court, upon review of the dismissal of a
second-stage postconviction proceeding, held that a 19-year-old offender’s mandatory life
sentence was unconstitutional under the proportionate penalties clause as applied to him, vacated
the sentence, and remanded the case for a new sentencing hearing. Id. ¶ 65. The court recognized
that the defendant was not a juvenile when he committed the offense but opined that his young
age of 19 was relevant under the circumstances of the case. Id. ¶ 46, 63. Also relevant were the
facts that the defendant had served only as a lookout during the shooting at issue and had been
found guilty of murder on a theory of accountability. Id. ¶ 46. He also received the same
sentence of mandatory natural life in prison as the actual shooter, whereas another codefendant
with culpability similar to that of the defendant had already been released from prison because
the codefendant had been only 17 years old at the time of the offense. Id. The court further
opined that the mandatory nature of the defendant’s sentence had precluded the trial court from
considering the goal of rehabilitation in imposing the sentence, which the court found especially
relevant to the defendant’s case. Id. ¶ 64. Given the defendant’s young age, family background,
actions of being only a lookout, and lack of prior violent convictions, the court held that the
mandatory sentence of natural life “shocks the moral sense of community.” Id. This case is
currently pending on appeal before the Illinois Supreme Court.
¶ 35 Since House, this court has issued decisions rejecting attempts by petitioners who were
18 years old or older at the time of their offenses to file successive postconviction petitions
raising as-applied challenges under the proportionate penalties clause. See, e.g., People v.
Carrion, 2020 IL App (1st) 171001, ¶¶ 30-33; People v. Gomez, 2020 IL App (1st) 173016, ¶¶
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37-38; People v. McClurkin, 2020 IL App (1st) 171274, ¶¶ 20-23; People v. Handy, 2019 IL App
(1st) 170213, ¶¶ 40-41; People v. Moore, 2020 IL App (4th) 190528, ¶¶ 38-41; People v. White,
2020 IL App (5th) 170345, ¶¶ 31.
¶ 36 In other cases, this court and other districts of the appellate court have issued decisions
reversing trial courts that summarily dismissed postconviction petitions at the first stage or
denied leave to file successive postconviction petitions, where offenders age 18 or older raised
claims that in light of recent developments in brain science, lengthy sentences imposed on them
without consideration of their youth and rehabilitative potential violated the proportionate
penalties clause as applied to them. See, e.g., People v. Savage, 2020 IL App (1st) 173135, ¶ 76;
People v. Franklin, 2020 IL App (1st) 171628, ¶¶ 68-69; People v. Daniels, 2020 IL App (1st)
171738, ¶¶ 2, 34; People v. Ruiz, 2020 IL App (1st) 163145, ¶¶ 1, 38-40; People v. Johnson,
2020 IL App (1st) 171362, ¶¶ 1-2, 15-16; People v. Carrasquillo, 2020 IL App (1st) 180534, ¶
109; People v. Minniefield, 2020 IL App (1st) 170541, ¶ 47; People v. Bland, 2020 IL App (3d)
170705, ¶ 14. Several of these cases were issued with dissents. Franklin, 2020 IL App (1st)
171628, ¶¶ 75-98 (Burke, J. dissenting); Ruiz, 2020 IL App (1st) 16314, ¶¶ 74-92 (Pierce, J.
dissenting); Johnson, 2020 IL App (1st) 171362, ¶¶ 37-52 (Pierce, J. dissenting).
¶ 37 Significantly, of all the cases cited above, only one defendant – the defendant in Savage
was over the age of 21. The rest of the defendants were between 18 years of age and 21 years of
age. We find this critical to our analysis because “Illinois law treats adults under 21 years of age
differently than adults.” Savage, 2020 IL App (1st) 173135, ¶ 67; see 730 ILCS 5/3-3-9(a)(1.5)
(West 2018) (parole review for under 21-year-olds is called “youthful offender parole”). Our
legislature recently changed the law to make a person convicted of first-degree murder eligible
for parole after serving only 20 years if he or she was under 21 years old at the time of the
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offense and was sentenced after the law took effect. Pub. Act 100-1182 (eff. June 1, 2019)
adding 730 ILCS 5/5-4.5-110; Pub. Act. 101-288, § 5 (eff. Jan. 1, 2020) (amending 730 ILCS
5/5-4.5-110(b) and renumbering as 730 ILCS 5/5-4.5-115(b)). The Juvenile Court Act of 1987
defines a “[m]inor” as “a person under the age of 21 years subject to this Act” (705 ILCS 405/1-
3(10) (West 2018)), while an “[a]dult” means “a person 21 years of age or older.” 705 ILCS
405/1-3(2) (West 2018).
¶ 38 As recently explained by this court in Savage:
“Our state treats under 21-year-olds differently in other ways, such as
prohibiting sales to them of alcohol (235 ILCS 5/6-16(a)(i) (West 2018),
cigarettes (720 ILCS 675/1 (West Supp. 2019), and wagering tickets (230 ILCS
10/18(b)(1) (West 2018); prohibiting their gun ownership without parental
permission (430 ILCS 65/4(a)(2)(i) (West 2018); and limiting Class X sentencing
for recidivist offenders to those offenders ‘over the age of 21 years’ (730 ILCS
5/5-4.5-95(b) (West 2019). See also People v. Mosley, 2015 IL 115872, ¶ 36 (a
band on handgun possession by ‘minors’ under 21 does not violate the second
amendment); 760 ILCS 20/2(a) (West 2018) (Illinois Uniform Transfers to
Minors Act defines an adult as one ‘21 years of age’ or older).”
¶ 39 In Savage, the court found that while the “defendant was seven months past his 21st
birthday at the time of the offense,” his argument in his first stage postconviction petition that
mental health issues may lower a defendant’s functional age had support in recent case law. Id. ¶
70 (citing House, 2019 IL App (1st) 110580-B, ¶ 59, pet. for leave to appeal granted, No.
125124 (Jan. 29, 2020)). The court noted that the defendant’s petition alleged that he had been a
drug addict since he was nine years old, that he was using drugs at the time of the offense, and
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that he was attempting to rob a drug house when the offenses in the case occurred. Id. ¶ 71. His
petition further alleged that his long-term addiction and his young age left him “more susceptible
to peer pressure” and “more volatile in emotionally charged settings.” Id.
¶ 40 This court found that these allegations found support in a hospital discharge report that
was filed in connection with the preparation of the defendant’s PSI, which indicated that
defendant began abusing drugs when he was 9 years old. Id. ¶ 72. This court found that while the
trial court mentioned the defendant’s age, the record “did not show that the trial court considered
the attributes of young adulthood or these attributes in light of defendant’s lifelong drug
addiction.” Id. ¶ 74.
¶ 41 Importantly, the court in Savage distinguished another recent case, People v. Rivera,
2020 IL App (1st) 171430, where this court denied a defendant, who was 23 years old at the time
of the offense, leave to file a successive postconviction petition. The court in Savage stated that
the defendant in Rivera “made no allegations in either his petition or in his appellate briefs that
there were any issues particular to him, such as drug addiction or mental health, that rendered
him functionally younger than his chronological age.” Id. ¶ 78. Instead, the court noted, the
defendant in Rivera relied on “general statements in recent case law about the impetuosity of the
young that were generically applicable to all young adults.” Id.
¶ 42 While recognizing that this case was dismissed at the first stage of postconviction
proceedings, and not on a motion for leave to file a successive postconviction petition, we find
that the petitioner in this case to be more akin to the defendant in Rivera than the defendant in
Savage. In Rivera, the court noted that the defendant had two prior felony convictions for drug
trafficking and gun possession. Id. ¶ 26. The court stated that the defendant’s “actions in this
case set forth none of the immaturity or impetuosity that are the hallmarks of youth.” Id.
17 No. 1-17-1384
“Instead, the scheme in which he agreed to participate was a carefully planned and staged
robbery – the coordinated effort of a number of offenders.” Id.
¶ 43 Similarly here, petitioner had an extensive history of criminal activity. Before the crime
in question occurred, he came up with a scheme to drive to Chicago and rob someone for money
so that he could travel to Atlanta. Petitioner hijacked the innocent victim’s car. He and his
accomplices forced the victim into the trunk of the victim’s car and drove him around before
taking him out of the trunk in an alleyway. Petitioner then shot the victim in the head as the
victim begged for his life.
¶ 44 Petitioner made absolutely no arguments in his postconviction petition that there were
any issues particular to him, such as drug addiction or mental health, that rendered him
functionally younger than his chronological age. In his appellate brief, petitioner recognizes that
he failed to “attach any scientific evidence to support his claim,” and instead relies, as the
defendant did in Rivera, on general statements in recent case law about the impetuosity of the
young.
¶ 45 While we recognize that a petitioner at the first stage need only present a limited amount
of detail in the petition because petitions are drafted at this stage by defendants with little legal
knowledge or training, and that the threshold for survival is low, a pro se petitioner is not
“excused from providing any factual detail at all surrounding the alleged constitution violation.”
Hodges, 234 Ill. 2d at 9-10. The Act also provides that “[t]he petition shall have attached thereto
affidavits, records, or other evidence supporting its or shall state why the same are not attached.”
725 ILCS 5/122-2 (West 2018). The purpose of the “affidavits, records or other evidence”
requirement is to establish that the petition’s allegations are capable of objective or independent
corroboration. Hodges, 234 Ill. 2d at 10. “Thus, while a pro se petition is not expected to set
18 No. 1-17-1384
forth complete and detailed factual recitation, it must set forth some facts which can be
corroborated and are objective in nature or contain some explanation as to why those facts are
absent.” Delton, 227 Ill. 2d at 254-55.
¶ 46 While petitioner makes a brief statement on appeal that “it is fair to say that [petitioner]’s
childhood was marked by violence, injury, and indifference,” there are no facts presented in the
postconviction petition, the appellate briefs, or in the record on appeal that support an allegation
that there were any issues particular to him that rendered him functionally younger than his
chronological age of 22 years old.
¶ 47 The defendant in Rivera argued, similarly to petitioner, “that the same considerations,
which were applied to under-18-year-olds and which have been arguably extended in some cases
and statutes to under-21-year-olds, should be extended further to under 24-year-olds.” Rivera, ¶
27. We agree with the court in Rivera that “[i]f such an extension should be made – and we are
not saying that it should – it should be made by our legislature or our highest court.” Id.
Accordingly, we affirm the trial court’s summary dismissal of petitioner’s first-stage
postconviction petition.
¶ 48 III. CONCLUSION
¶ 49 For the foregoing reasons, we affirm the trial court’s dismissal of petitioner’s first stage
pro se postconviction petition.
¶ 50 Affirmed.