2024 IL App (5th) 200285-U NOTICE NOTICE Decision filed 03/11/24. The This order was filed under text of this decision may be NO. 5-20-0285 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 87-CF-27 ) ERNEST PERRY, ) Honorable ) Neil T. Schroeder, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE McHANEY delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: The trial court’s denial of leave to file a successive postconviction petition is affirmed where the defendant failed to show cause for not raising his proportionate penalties claim in an earlier collateral proceeding.
¶2 The defendant, Ernest Perry, appeals the trial court’s order denying his motion for leave to
file a successive petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West
2020)). On appeal, the defendant contends that he demonstrated cause and prejudice to file a
successive postconviction petition because the case law and community standards surrounding
sentencing young adults and intellectually disabled defendants have changed since he was
sentenced to life without parole. For the following reasons, we affirm.
1 ¶3 I. Background
¶4 We detail only those facts necessary for our disposition. The defendant was arrested on
January 6, 1987, pursuant to an outstanding robbery warrant, and was transported to the police
station in Alton, Illinois. The robbery warrant was unrelated to any of the crimes for which the
defendant was ultimately tried and convicted in this case. Upon arrival at the police station, the
defendant was “booked” and read his Miranda rights (see Miranda v. Arizona, 384 U.S. 436
(1966)). Subsequently, the defendant was interviewed by Alton police officers regarding the
defendant’s possible involvement in the stabbing deaths of Alvin Autery and Mary Irwin. The
defendant gave an oral statement denying any involvement in the murders.
¶5 The following day, January 7, 1987, the defendant was arraigned on charges of robbery
and aggravated battery unrelated to the Autery-Irwin murders. At the arraignment, the trial court
granted the defendant’s request that an attorney be appointed to represent him, and the trial court
directed that the defendant be transferred to the Madison County jail. The Alton police, however,
obtained a “hold order” so that they could keep defendant in their municipal jail for another day.
¶6 On January 8, 1987, the Alton police again interviewed the defendant regarding the Autery-
Irwin murders. Prior to the interview the defendant was advised of his Miranda rights. At this time,
the defendant gave a statement confessing that he accompanied his sister’s boyfriend, Thermon
Smith, who went to the victims’ home to steal their television set. The defendant told the police
that Smith told him to wait outside and act as a lookout while he broke into the house.
¶7 On January 9, 1987, the defendant was charged by information with four counts of murder
under section 9-l(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, ¶ 9-l(a)) and two
counts of home invasion under section 12-11(a)(2) of the Criminal Code of 1961 (id. ¶ 12-11(a)(2))
2 in connection with the June 29, 1986, stabbing deaths of Alvin Autery and Mary Irwin. The
defendant was 20 years old at the time of the murders.
¶8 Prior to trial, the defendant filed a motion to suppress his confession on the basis that it had
been obtained outside the presence of defense counsel. In his motion, the defendant alleged that
“due to his physical, physiological, mental, emotional, educational, and/or psychological state,” as
well as his “capacity and condition,” he was incapable and unable to appreciate and understand
the full meaning of his Miranda rights, and, therefore, any relinquishment of such rights was not
made voluntarily, knowingly, and intelligently. After an evidentiary hearing, the trial court denied
the defendant’s motion to suppress, and the defendant’s confession was admitted at trial.
¶9 The case proceeded to a jury trial on June 17, 1988. Autery and Irwin, who were described
as mentally retarded, were found dead in their home on July 1, 1986. Detective Richard Wells
testified that he was called to assist with the investigation of the crime scene. The detective stated
that the victims’ front screen door was broken outward. A VCR unit was discovered on the kitchen
floor. A deceased male, later identified as Alvin Autery, was discovered face down on a sofa bed,
with his arms to his side and his feet somewhat together. A bent knife was found close to the body,
as were strips of bed sheet that had been knotted. A deceased female, later identified as Mary
Irwin, was found in the hallway, with multiple injuries to her face, head, stomach, and legs.
¶ 10 Officer Anthony Ventimiglia testified that when the defendant initially was taken into
custody, he denied participation in the murders. Two videotaped statements by the defendant were
played for the jury. The first videotaped statement was made on January 6, 1987, prior to the
defendant being charged with murder. The defendant stated that on the night in question he, his
family members, and some friends were sitting outside drinking beer. His sister’s boyfriend,
Thermon Smith, whom the defendant had known for five or six years, was also there. They had
3 been drinking all day and “shooting up” with “some kind of dope.” Around midnight, they
discussed going to the liquor store before it closed to buy more alcohol. Smith stated that he needed
some money and that he was going to go break into a house to get some money or some
merchandise. The defendant stated that he “knew this meant that [Smith] was going to go and steal
something.” His sister tried unsuccessfully to stop Smith from leaving, but he left, walking down
the street with an aluminum baseball bat. The defendant stated that at approximately 4 a.m., Smith
came back with “a lot of blood” all over his shirt.
¶ 11 On January 8, 1987, Officer Ventimiglia told the defendant that he had spoken with Smith
who “told the truth about what had occurred.” Although the officer had not, in fact, spoken with
Smith, he asked if the defendant wanted to give another statement. The second videotaped
statement was given by the defendant. In it, he once again stated that he, his family, and some
friends discussed getting more alcohol before the liquor store closed. When Smith asked the
defendant if he wanted to make some money, he said yes. Smith told him they were going down
the street to break into a house and steal a television set, and the defendant said he would go. When
they stopped at a “light colored house,” Smith told him to wait outside and watch out for neighbors.
After a few minutes, he heard a man and a woman “yelling and screaming.” He stated that he
became frightened and fled the scene, returning to his home. The defendant stated that he did not
go inside the house, even though he had heard that Smith had been telling other people that he and
Smith had killed the victims. He also stated that he did not know that Smith was going to hurt
anyone, but he admitted he knew Smith carried a knife.
¶ 12 Michael Terrell, who was in jail at the same time as the defendant, testified that the
defendant told him that he had killed a woman named Mary after she recognized him and that he
had taken a VCR and tapes. Terrell also testified that the defendant had mentioned tying her with
4 a sheet. In exchange for his testimony, Terrell did not have to complete a long term of drug
treatment associated with the charges against him, had his probation transferred to a different state,
and was released from jail. Though Terrell testified that the defendant told him about the murder
in March 1988, Terrell did not come forward until he learned he could receive a benefit in his own
case.
¶ 13 The State had submitted to the jury the defendant’s eligibility for the death penalty, arguing
that he was eligible for the death penalty under either of two aggravating factors: first, that the
defendant was over the age of 18 and guilty of murdering more than one person as long as he had
an intent to kill more than one person; and second, that the defendant was over the age of 18 and
one of two other circumstances applied: (1) either, if murdered by the defendant, the murdered
person was killed in the course of another felony, or (2) that the murdered person received injuries
from the defendant at the same time as injuries from a person whose conduct the defendant was
legally responsible for, that either of those injuries caused the death, and he had the intent to kill
or knowledge that his acts created a strong probability of death, and the other felony was home
invasion. Although the jury received both instructions, they found the defendant ineligible for the
death penalty. The jury found the defendant guilty on all six counts.
¶ 14 A sentencing hearing was held on August 30, 1988. The trial court denied the defendant’s
posttrial motions. Neither the State nor the defendant presented witnesses. The presentence
investigation (PSI) revealed that the defendant had been in special education classes, although the
defendant reported that he did not know why and denied being a slow learner. The PSI also
revealed that the defendant had three juvenile adjudications and one adult conviction for burglary.
The State argued for a life sentence for the double murder. Defense counsel argued that the
requirement of a mandatory life sentence removed the trial court’s discretion. He further argued,
5 in mitigation, that the defendant had a short criminal record, was young, and was acting as a
lookout. Defense counsel argued that due to the defendant’s age and his level of participation in
the crime, it was unfair that the defendant be sentenced to life imprisonment.
¶ 15 In pronouncing sentence, the trial court reasoned it was bound by the sentencing statute in
effect at the time to impose a life sentence. The defendant was sentenced to two terms of natural
life imprisonment pursuant to section 5-8-1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev.
Stat. 1985, ch. 38, ¶ 1005-8-1(a)(1)(c)), which mandated an automatic natural life sentence for first
degree murder where, as here, the defendant was found guilty of murdering more than one victim,
as well as 30 years’ imprisonment on each of the home invasion convictions. 1
¶ 16 The defendant appealed his convictions, arguing that the trial court erred in denying his
motion to suppress. This court reversed the defendant’s convictions. See People v. Perry, 205 Ill.
App. 3d 655 (1990). However, that decision was later reversed by our state supreme court in
People v. Perry, 147 Ill. 2d 430 (1992) (citing McNeil v. Wisconsin, 501 U.S. 171 (1991), which
was decided after this court’s decision in Perry). In reversing this court’s decision, the supreme
court remanded the cause for consideration of the remaining arguments which the defendant had
raised on appeal that had not been addressed. On remand, this court rejected the defendant’s
additional claims of error related to (1) the propriety of imposing natural-life sentences on a
defendant charged on a theory of accountability and (2) the court’s handling of a pro se posttrial
motion alleging ineffective assistance of counsel. See People v. Perry, 230 Ill. App. 3d 720 (1992).
¶ 17 The defendant subsequently filed several collateral challenges to his convictions and
sentences. In July 1992, while his direct appeal was pending, the defendant filed a petition seeking
relief under the Post-Conviction Hearing Act. The defendant alleged that his constitutional rights
1 The trial court did not impose sentence on two of the murder convictions. 6 were violated because (1) he was not proven guilty beyond a reasonable doubt and (2) the State
used its peremptory challenges to excuse the only two black venire members in violation of Batson
v. Kentucky, 476 U.S. 79 (1986). The defendant also alleged that he received ineffective assistance
of counsel because trial counsel (1) failed to discover and call potential defense witnesses, (2) did
not object to the lack of potential black jurors in the venire or file a proper motion pursuant to
Batson, (3) did not object to improper closing arguments, (4) failed to preserve issues for appeal,
and (5) “did not allow” defendant to testify in his own defense. The defendant further alleged that
he received ineffective assistance of appellate counsel because appellate counsel did not raise any
of these issues in his direct appeal. The trial court summarily dismissed the defendant’s petition
for postconviction relief, finding it to be frivolous and patently without merit. Four months later,
the defendant filed a petition for leave to file a late notice of appeal from the trial court’s ruling,
which was denied in February 1993.
¶ 18 In December 2000, the defendant filed a petition for relief from judgment under section 2-
1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)). The defendant challenged
his sentence, relying on Apprendi v. New Jersey, 530 U.S. 466 (2000). The State filed a motion to
dismiss, which the trial court granted. The defendant appealed, and this court affirmed the trial
court’s ruling in October 2002. See People v. Perry, No. 5-01-0404 (Oct. 11, 2002) (unpublished
order under Illinois Supreme Court Rule 23).
¶ 19 On June 5, 2019, the defendant obtained new counsel. The defendant, by counsel, filed a
motion for leave to file a successive postconviction petition predicated upon “newly-expanded
constitutional law” as set forth in People v. Coty, 2018 IL App (1st) 162383. He asserted that Coty
was “an expansion of the prohibition against execution of the mentally disabled as found in Atkins
v. Virginia 2002, and clarified in Hall v. Florida, 2014,” and that it paralleled the principles found
7 in Miller v. Alabama, 567 U.S. 460 (2012), and its progeny. The defendant specifically argued that
his “severe intellectual disability and the unconstitutionality of a life sentence as applied to him as
a person who is severely mentally disabled” was a “clear-cut case of ‘cause and prejudice.’ ” Along
with the motion was the defendant’s petition for postconviction relief with attached documents
described by the defendant as “significant documentation of his intellectual disability.” These
documents included a disability determination by the Social Security Administration, dated March
22, 1985, which provided a diagnosis of “moderate mental retardation”; a psychological
evaluation, completed April 9, 1985, suggesting that a previous determination that the defendant
had an I.Q. of 45 might have been an overestimate and further suggesting that his I.Q. might be
even lower; and a disability determination, dated June 19, 1986, which stated a primary diagnosis
for the defendant was “mental retardation.” There was no mention of the defendant’s age at the
time of the murders nor at the time of sentencing.
¶ 20 On August 27, 2020, the trial court issued its order denying the defendant’s motion for
leave to file a successive postconviction petition, noting that since the date of the filing of his
petition, the case relied upon by defendant, People v. Coty, 2018 IL App (1st) 162383, had been
reversed by our supreme court. See People v. Coty, 2020 IL 123972. Further, the trial court found
that the defendant’s petition relied on documents created in 1985 and 1986 which would have been
readily obtainable prior to the defendant’s trial as well as any time during the past 32 years. The
defendant filed a timely notice of appeal.
¶ 21 II. Analysis
¶ 22 On appeal, the defendant contends that his mandatory life sentences violate the eighth
amendment of the United States Constitution (U.S. Const., amend. VIII) and the proportionate
penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) as applied to him because
8 he was 20 years old when the murders occurred, and the trial court was not allowed to consider his
youth or his intellectual disability in sentencing. The defendant submits that he demonstrated both
cause and prejudice to file a successive postconviction petition where he showed that the law on
sentencing intellectually disabled and young offenders has substantively changed since his
sentencing in 1988 and since the filing of his initial postconviction petition in 1992. The State
counters that the trial court properly denied the defendant’s motion for leave to file a successive
postconviction petition where the defendant failed to establish either cause or prejudice.
¶ 23 The Post-Conviction Hearing Act (Act) provides a procedural mechanism for defendants
to raise claims of violations of their constitutional rights. People v. Robinson, 2020 IL 123849,
¶ 42. The Act is a collateral attack on a final judgment and not a substitute for a direct appeal. Id.
Although only one postconviction proceeding is contemplated under the Act (People v. Edwards,
2012 IL 111711, ¶ 22), a defendant seeking to file a successive postconviction petition may obtain
leave of court (People v. Tidwell, 236 Ill. 2d 150, 157 (2010)). However, the bar against successive
postconviction proceedings should not be relaxed unless (1) a defendant can establish “cause and
prejudice” for the failure to raise the claim earlier or (2) he can show actual innocence under the
“fundamental miscarriage of justice” exception. Edwards, 2012 IL 111711, ¶¶ 22-23.
¶ 24 The filing of a successive postconviction petition is “highly disfavored” (People v. Simms,
2018 IL 122378, ¶ 38) and allowed only in “very limited circumstances” (People v. Davis, 2014
IL 115595, ¶ 14). People v. Montanez, 2023 IL 128740, ¶ 73. The Act provides that a defendant’s
claim of substantial denial of constitutional rights not raised in his original or amended
postconviction petition is waived. Id. ¶ 74; 725 ILCS 5/122-3 (West 2020). Thus, the procedural
bar of waiver, in the context of a successive postconviction petition, is not merely a principle of
9 judicial administration but an express requirement of the Act. Montanez, 2023 IL 128740, ¶ 74
(citing People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002)).
¶ 25 Here, the defendant contends that he demonstrated both cause and prejudice. The cause-
and-prejudice test is set out in section 122-1(f) of the Act as follows:
“Leave of court [for filing a successive postconviction petition] may be granted only if a
petitioner demonstrates cause for his or her failure to bring the claim in his or her initial
post-conviction proceedings and prejudice results from that failure. For purposes of this
subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded
his or her ability to raise a specific claim during his or her initial post-conviction
proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised
during his or her initial post-conviction proceedings so infected the trial that the resulting
conviction or sentence violated due process.” 725 ILCS 5/122-1(f) (West 2020).
¶ 26 A motion for leave to file a successive petition seeking postconviction relief should be
denied where “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
successive petition with supporting documentation is insufficient to justify further proceedings.”
(Internal quotation marks omitted.) People v. Bailey, 2017 IL 121450, ¶ 21. It is the defendant’s
burden to establish a prima facie showing of cause and prejudice in order to be granted leave before
further proceedings on his claims can follow (id. ¶ 24), and both elements must be satisfied for
defendant to prevail. People v. Guerrero, 2012 IL 112020, ¶ 15. A reviewing court applies a
de novo standard to a trial court’s denial of a motion for leave to file a successive postconviction
petition. People v. Lusby, 2020 IL 124046, ¶ 27.
10 ¶ 27 As previously noted, the defendant predicated his motion for leave to file a successive
postconviction petition upon “newly-expanded constitutional law” as set forth in People v. Coty,
2018 IL App (1st) 162383. In Coty, 2018 IL App (1st) 162383, ¶ 77, the appellate court held that
a 50-year sentence imposed on a 52-year-old intellectually disabled adult constituted a de facto
life sentence and that imposing such a sentence violated the proportionate penalties clause of the
Illinois Constitution (Ill. Const. 1970, art. I, § 11). However, in People v. Coty, 2020 IL 123972
(Coty II), our supreme court reversed the appellate court, holding that a natural life sentence, actual
or de facto, does not violate the proportionate penalties clause as applied to an intellectually
disabled adult.
¶ 28 In People v. Hampton, 2021 IL App (5th) 170341, ¶ 119, we had occasion to consider the
precedents and rationale underlying our supreme court’s decision in Coty II. We noted that the
issues involved in both Coty and Hampton arose “from a series of United States Supreme Court
cases addressing what limits the eighth amendment places on sentences that may be imposed on
two classes of defendants with characteristics that make them less culpable than other
defendants—juveniles and individuals with intellectual disabilities.” Id. ¶ 120. We began with
Atkins v. Virginia, 536 U.S. 304, 318 (2002), wherein the United States Supreme Court held that
the eighth amendment categorically precludes imposition of the death penalty on adult defendants
with intellectual disabilities. Id. ¶ 121. We then noted that the Supreme Court’s decisions in Roper
v. Simmons, 543 U.S. 551, 578-79 (2005) (eighth amendment categorically prohibits death
sentences for juveniles), and Graham v. Florida, 560 U.S. 48, 82 (2010) (eighth amendment
categorically precludes natural life sentences for juveniles who commit crimes other than
homicide), were premised on the characteristics of youth that make juvenile defendants both less
morally culpable and more likely to be rehabilitated than adult defendants. Id. ¶ 122.
11 ¶ 29 Next, we detailed how the Supreme Court considered the characteristics described in Roper
and Graham in deciding Miller v. Alabama, 567 U.S. 460, 471-73 (2012). In Miller, 567 U.S. at
479, the Court held that a mandatory sentence of life without the possibility of parole violates the
eighth amendment when imposed on a murder defendant for a murder committed by a juvenile
defendant. Id. at 470. Although the Supreme Court recognized that youthful characteristics do not
disappear when an individual turns 18 (Roper, 543 U.S. at 574), the Court limited its holdings to
defendants who were under the age of 18 when they committed their offenses, reasoning that the
line must be drawn somewhere. Miller, 567 U.S. at 465; Graham, 560 U.S. at 74-75; Roper, 543
U.S. at 574; see also People v. Harris, 2018 IL 121932, ¶ 56 (noting the Supreme Court has never
extended its reasoning to young adults over the age of 18). In Montgomery v. Louisiana, 577 U.S.
190, 212 (2016), the Court held that Miller was to be construed retroactively. See also People v.
Davis, 2014 IL 115595, ¶ 42 (Miller v. Alabama made retroactive to Illinois cases on collateral
review). In reversing Coty I, the supreme court found that the appellate court had extended the
requirements of Miller and its progeny, via Atkins, to adult offenders with intellectual disabilities.
Coty, 2020 IL 123972, ¶¶ 17-18.
¶ 30 After the defendant filed his reply brief, but prior to oral argument on July 10, 2023, we
granted him leave to cite as additional authority, People v. Moore, 2023 IL 126461, issued by the
Illinois Supreme Court on May 18, 2023. In Moore, the supreme court considered two consolidated
appeals involving defendants who were 19 years old at the time of their respective offenses, and
both were sentenced to life in prison without parole. Id. ¶ 1. Each defendant claimed that Miller
provided cause for raising new constitutional challenges to their sentences in a successive
postconviction petition. Id. ¶ 36. The Moore court explained that because Miller did not directly
apply to young adults, it did not provide cause for a young adult to raise a claim under either the
12 proportionate penalties clause of the Illinois Constitution or the eighth amendment to the United
States Constitution. Id. ¶¶ 38, 40. Thus, the Moore court held that Miller did not provide cause for
the defendants to file their proposed successive postconviction petitions. Id. ¶ 44.
¶ 31 In his motion, the defendant acknowledged that he was making a similar claim. However,
he argues his case differed in important ways from the defendants in Moore, and, thus, his case
requires a different result. The defendant asserts that although both defendants in Moore received
life sentences, our supreme court noted that “[t]he evidence and arguments raised at the sentencing
hearings for both Moore and Williams show the parties knew Illinois law recognized the special
status of young adults, especially those subject to adverse influences, for purposes of applying the
principles of the proportionate penalties clause.” Id. ¶ 42. The defendant contends that at his
sentencing hearing, the trial court was prevented from considering in any meaningful way the
mitigating effect of his youth when it reasoned that life in prison without parole was the only
available sentence.
¶ 32 Here, the defendant made no mention of his youth in his motion for leave to file a
successive postconviction petition; rather, the defendant raises this argument for the first time on
appeal. As our supreme court recently noted in Montanez, 2023 IL 128740, ¶ 88, “it is a well-
settled proposition that postconviction petitioners may not raise claims on appeal that were not
included in their motions for leave to file or in their proposed successive petitions.” In Montanez,
the supreme court affirmed the denial of the defendant’s motion for leave to file a successive
postconviction petition where the defendant did not raise the issue in his motion, finding that the
motion fell short of demonstrating that the procedural hurdles for filing a successive petition
should be lowered. Id. ¶ 123. Accordingly, we reach the same conclusion regarding the defendant’s
claim here.
13 ¶ 33 In his motion to cite additional authority, the defendant notes that in Moore, 2023 IL
126461, ¶ 41, the Illinois Supreme Court cited People v. Clark, 2023 IL 127273, for the proposition
that Illinois law has long recognized intellectual disability as a factor in mitigation. The defendant
correctly points out that, unlike the defendants in Moore, he was unable to present evidence of his
intellectual disability, and its potential mitigation, at sentencing because it was not yet recognized
as a factor that could be considered in mitigation in 1988. However, the defendant has not shown
“cause” where he fails to identify an objective factor that impeded his ability to raise this claim in
his initial postconviction petition which he filed in July 1992. In 1990, our legislature added
“intellectually disabled” to the list of mitigating factors to be considered in sentencing. Coty, 2020
IL 123972, ¶ 33; see Pub. Act 86-903 (eff. Jan. 1, 1990) (adding 730 ILCS 5/5-5-3.1(a)(13)); see
also Pub. Act 97-227, § 145 (eff. Jan. 1, 2012) (changing “mentally retarded” to “intellectually
disabled”). Because the documents relied upon by the defendant in his motion for leave to file a
successive postconviction petition were dated 1985 and 1986, they would have been available to,
or at the very least obtainable by, the defendant to support his initial postconviction petition. Where
a defendant fails to demonstrate a prima facie showing of both prongs of the test, the trial court
must deny the defendant’s motion for leave to file a successive postconviction petition. Montanez,
2023 IL 128740, ¶ 79 (citing People v. Smith, 2014 IL 115946, ¶ 35).
¶ 34 III. Conclusion
¶ 35 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 36 Affirmed.