2021 IL App (1st) 181926-U Order filed: January 15, 2021
FIRST DISTRICT FIFTH DIVISION
No. 1-18-1926
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 ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 08 CR 22936 ) KIEARRE REESE, ) Honorable ) Domenica A. Stephenson, Defendant-Appellant. ) Judge, presiding ______________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Delort and Justice Cunningham concurred in the judgment.
ORDER
¶1 Held: We affirmed the circuit court’s order denying defendant leave to file a successive postconviction petition alleging an as-applied proportionate penalties violation, finding that he failed to satisfy the cause-and-prejudice test. We reversed the order denying defendant leave to file a successive petition alleging actual innocence and remanded for second-stage proceedings thereon.
¶2 Defendant, Kiearre Reese, appeals the circuit court’s order denying him leave to file a
successive postconviction petition alleging actual innocence and a violation of the proportionate
penalties clause as applied to him. Defendant argues that he made a colorable claim of actual No. 1-18-1926
innocence and showed cause and prejudice for failing to raise the proportionate penalties claim
earlier. We reverse the portion of the order denying defendant leave to file a successive
postconviction petition alleging actual innocence and remand for second-stage proceedings
thereon. We affirm the denial of his request for leave to file a successive postconviction petition
alleging an as-applied proportionate penalties violation 1.
¶3 The State charged defendant with the first degree murder of Marshawn Melcher and the
attempted first degree murder of Terelle Griffin. The State’s theory of the case was that at about
10:30 p.m. on August 8, 2008, defendant shot and killed Melcher and shot and injured Griffin in
Meyering Park (the park) in Chicago after an argument erupted during a dice game. At trial, the
State presented evidence from seven witnesses, including two eyewitnesses to the shooting, Griffin
and Marvel Williams.
¶4 Williams was 11 years old at the time of the shooting. He testified that at about 10:30 p.m.
on August 8, 2008, he observed defendant, Melcher and Griffin playing dice at the park. At some
point during the dice game, Melcher asked defendant to give him two dollars so that he could pay
for bus fare to go home. An argument ensued, and defendant shot Melcher in the chest and then
shot Griffin. Williams did not see Melcher or Griffin with a gun. After the shooting, Williams saw
a person named Darius grab a gun from beneath a bush and run off with it before the police arrived.
¶5 Griffin testified that on the night of the shooting he played a dice game with Melcher,
Martino Mosby, and Darius Ballark. He left the park because someone told him that the dice game
was going to be robbed, but he returned 20 to 30 minutes later and observed defendant shoot
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order stating with specificity why no substantial question is presented. -2- No. 1-18-1926
Melcher. Griffin tried to flee, but defendant shot him in the chest. Griffin testified that neither he
nor Melcher had any weapons in the park, and never threatened defendant. On cross-examination,
Griffin acknowledged that he had five prior felony convictions for drug offenses and an escape
from electronic monitoring, and he also admitted to lying to the police about his name and birth
date. He admitted stashing guns in the bushes of the park in the past because it was part of his drug
territory, but he testified he did not do so on the night of the shooting.
¶6 Detective Clifford Martin testified he arrived at the park at about 11:30 p.m. on August 8,
2008. Police officers had already cordoned off the area, questioned persons at the scene, and
collected evidence. Detective Martin did not speak with Williams that night because he had already
been taken home.
¶7 Detective Martin and his partner went to the hospital, where they attempted,
unsuccessfully, to speak with Griffin, who was undergoing a medical procedure. They spoke to
Griffin’s mother instead. Subsequently, Detective Martin put together a six-person photo array.
On August 12, 2008, he returned to the hospital and showed Griffin the photo array. Griffin
identified defendant as the shooter.
¶8 Detective Martin went to Williams’ home on August 15, 2008, and spoke with him about
the shooting. Williams stated that he saw Melcher ask a man, whom he could not identify, for two
dollars. The man pulled out a gun and shot Melcher and Griffin. Detective Martin did not show
Williams the photo array.
¶9 On August 31, 2008, Williams and his mother came to the police station for further
questioning. Detective Martin showed Williams the photo array and he identified defendant as the
shooter. Williams told Detective Martin that defendant “won all the money” in the dice game and
Melcher became angry and gave some sort of signal to Griffin. A man in a hooded sweatshirt -3- No. 1-18-1926
handed defendant a gun, and he shot Melcher and Griffin. Griffin tried to retrieve a gun from some
bushes but was unable to do so.
¶ 10 During grand jury proceedings in November 2008, Williams gave a different account of
how defendant retrieved the gun, stating he had seen a girl (not a man in a sweatshirt) pass a gun
to defendant at the park prior to the shooting.
¶ 11 The parties stipulated that Dr. Kendall Crowns would testify he performed Melcher’s
autopsy and opined that Melcher died of a gunshot wound to the chest and the manner of death
was homicide.
¶ 12 The State rested and defendant did not present any evidence.
¶ 13 The jury convicted defendant of first degree murder and attempted first degree murder and
found that during the commission of those crimes, he personally discharged a firearm that
proximately caused death or great bodily harm to another person. The trial court sentenced him to
the minimum term under the applicable statutes, specifically, consecutive terms of 20 years for
first degree murder plus a mandatory 25-year firearm enhancement, and 6 years for attempted
murder, plus a mandatory 25-year firearm enhancement, for a total of 76 years’ imprisonment.
¶ 14 Defendant filed a direct appeal, arguing that “he was denied effective assistance of counsel
because trial counsel pursued a second degree murder theory in both cross-examination and in the
instructions tendered to the jury, but abandoned that theory in closing argument in favor of a theory
of misidentification.” See People v. Reese, 2014 IL App (1st) 113003-U, ¶ 2. We affirmed. Id.
¶ 15 Defendant subsequently filed a pro se postconviction petition. Defendant alleged that his
trial counsel provided ineffective assistance by: (1) coercing him into waiving his right to testify
at trial; (2) denying him his right to personally decide whether to pursue a defense based on second-
-4- No. 1-18-1926
degree murder and aggravated battery with a firearm; and (3) failing to interview, investigate or
subpoena a prospective defense witness named Lamar Collins-Thompson.
¶ 16 Defendant’s petition included a notarized affidavit signed by Collins-Thompson, who
attested that on August 8, 2008, he heard Griffin tell another man that he and Melcher were going
to rob defendant because defendant was cheating at dice. Defendant and Melcher began arguing.
Griffin went to the bushes and came back with a black gun and defendant shot at him three or four
times. Collins-Thompson got on the ground and saw a man take the gun from Griffin and run out
of the park. Collins-Thompson later saw defendant at Menard Correctional Center in 2013 after
the trial and he told defendant that he had witnessed the shooting but had not come forward because
he had just come home from the juvenile center and was on probation and he did not want “trouble
from the boys in the hood.” He was not interviewed by police or by defendant’s attorney.
¶ 17 On January 28, 2015, the postconviction court summarily dismissed defendant’s petition
at the first stage of the proceedings, finding his claims of ineffective assistance were frivolous and
patently without merit.
¶ 18 Defendant appealed the summary dismissal, arguing that the postconviction court erred
because his petition adequately alleged a claim of actual innocence, based on Collins-Thompson’s
affidavit indicating that defendant fired his weapon in self-defense only after Griffin approached
with a black gun. See People v. Reese, 2017 IL App (1st) 150837-U, ¶ 22. Defendant also argued
on appeal that he had adequately alleged ineffective assistance based on counsel’s decision to only
argue a misidentification defense at trial and to “coerce” and “trick” him into waiving his right to
testify. Id. ¶¶ 40-53.
¶ 19 We affirmed in an order filed on June 16, 2017, holding that defendant’s postconviction
claims of ineffective assistance were barred by res judicata and/or were otherwise frivolous or -5- No. 1-18-1926
patently without merit. Id. We also held that defendant forfeited his claim of actual innocence by
failing to raise it in his petition and that his recourse was to file a successive petition properly
alleging actual innocence based on newly discovered evidence. Id. ¶¶ 22-38.
¶ 20 On July 17, 2017, defendant filed a motion for leave to file a successive petition that alleged
he was actually innocent based on newly discovered evidence that he had acted in self-defense. In
support of his claim, defendant submitted the affidavits of Marvell Williams, Fareed Jackson, and
Cadavious Barrett, and a purported letter he had received from Terrell Griffin.
¶ 21 In Williams’ affidavit, dated November 10, 2016, he recanted his trial testimony that none
of the victims were armed when defendant shot at them. Williams attested that after Melcher and
defendant argued in the park, Griffin retrieved a gun from some bushes and pointed it at defendant,
after which defendant pulled out his gun and began shooting. Williams explained that he had
testified falsely at trial because Griffin had threatened to kill him if he testified that he saw Griffin
with a gun.
¶ 22 Jackson attested in his affidavit, dated August 5, 2015, that while he and Griffin were both
in a holding cell at Stateville Correctional Center on September 12, 2011, he asked Griffin about
the circumstances of the shooting. Griffin told him that on the night of the shooting, defendant was
winning money at a dice game and Melcher decided to rob him. Melcher and Griffin told Martino
Mosby to retrieve a gun from 70th and Vernon. When Mosby returned with the gun, they directed
him to hide it in some bushes. Melcher then began arguing with defendant in order to distract him
while Griffin grabbed the gun and began sneaking up on defendant in order to rob him. Defendant
saw Griffin pointing the gun at him, and he then pulled out his own gun and began shooting. Griffin
lied at trial about what really happened because he did not want to be charged and convicted of
felony murder in connection with Melcher’s death. -6- No. 1-18-1926
¶ 23 Jackson told a friend named Damien, who was incarcerated with him, about what Griffin
had told him regarding the shooting. When Damien was released in 2015, he wrote defendant a
letter about Griffin’s statement and defendant then contacted Jackson. Jackson confirmed the
information contained in his affidavit.
¶ 24 Barrett attested in his affidavit, dated December 21, 2017, that he was in the park on the
night of the shooting and saw two men arguing. A man in a red baseball hat, armed with a gun,
approached the two men who were arguing. One of the men who had been arguing then pulled out
a handgun and shot at the man in the red hat. In 2017, a friend of Barrett, who knew the shooter’s
brother, asked Barrett if he would be willing to state what he had witnessed if “called to do so.”
Barrett replied that he would be willing to repeat what he witnessed.
¶ 25 Griffin’s letter was postmarked February 5, 2016, and sent to defendant at Menard
Correctional Center. Griffin admitted that he had lied at trial when he testified that neither he nor
Melcher had any weapons in the park and that he knew defendant had seen one of Griffin’s
companions with a gun prior to the shooting. Griffin explained that he had been unable to notarize
the letter because he did not have a State ID, but that he was willing to testify consistent with the
letter. If asked anything incriminating, though, he would plead the fifth amendment.
¶ 26 Defendant filed his own affidavit, dated July 17, 2017, attesting that he received the letter
from Griffin in February 2016. Defendant tried to contact Griffin to obtain a notarized affidavit
but was unable to do so and he subsequently learned in November 2016 that Griffin had been shot
and killed. Defendant appended a redacted Chicago Police Department incident report about a
homicide on November 2, 2016, listing Griffin as the shooting victim.
¶ 27 Defendant also alleged in his motion for leave to file a supplemental petition that his trial
counsel was ineffective for failing to conduct an adequate investigation into the evidence -7- No. 1-18-1926
supporting his self-defense claim. Defendant submitted an affidavit from Anthony McGee to
support his claim.
¶ 28 In his affidavit dated December 2, 2015, McGee attested that on the night of the shooting,
he watched a dice game at the park. Melcher gave him some money to buy a 22 ounce can of “211
beer.” McGee bought the beer, returned to the park, and heard Griffin ask Melcher whether he was
ready to rob defendant. Melcher responded affirmatively and told Griffin to get the gun. Melcher
then began arguing with defendant and demanded money while Griffin quickly came up behind
and pointed a gun at defendant. Defendant saw Griffin pointing the gun at him and began shooting
his own gun at Griffin. McGee ran away. In 2015, McGee “ran into” defendant and told him for
the first time about what he had seen on the night of the shooting.
¶ 29 Defendant also alleged in his motion for leave to file a supplemental petition that as applied
to him, his 76-year mandatory, de facto life sentence, for an offense committed when he was 25
years old, violated the proportionate penalties clause under Miller v. Alabama, 567 U.S. 460
(2012). We will discuss Miller more fully later in this order.
¶ 30 On May 10, 2018, the postconviction court denied defendant leave to file his successive
petition. Defendant filed a motion to reconsider that the court denied on August 3, 2018. Defendant
filed a timely notice of appeal.
¶ 31 First, defendant contends that the postconviction court erred by denying him leave to file a
successive petition raising a claim of actual innocence.
¶ 32 The Post-Conviction Hearing Act (Act) provides a procedural mechanism by which
defendant may assert violations of his constitutional rights in his original trial or sentencing. 725
ILCS 5/122-1(a)(West 2018); People v. Allen, 2015 IL 113135, ¶ 20. A postconviction proceeding
is not a substitute for appeal, but rather it offers a mechanism for defendant to assert a collateral -8- No. 1-18-1926
attack on a final judgment. People v. Robinson, 2020 IL 123849, ¶ 42. Where defendant has
previously challenged his judgment of conviction on appeal, the judgment of the reviewing court
will bar postconviction review of all issues actually decided by it as well as any other claims that
could have been presented. Id. As a consequence, only one postconviction proceeding is
contemplated under the Act. Id. However, the bar against successive petitions will be relaxed on
two grounds. Id. The first is where defendant can establish cause and prejudice for the failure to
assert a postconviction claim in the earlier proceeding. Id. The second is where defendant asserts
a fundamental miscarriage of justice based on actual innocence. Id.
¶ 33 Prior to commencing a successive postconviction petition, defendant must obtain leave of
court. Id. ¶ 43. If leave to file is granted, a successive petition is docketed for second-stage
proceedings. Id. In Robinson, the Illinois Supreme Court recently set forth the standard for
evaluating claims of actual innocence in the context of a motion for leave to file a successive
postconviction petition. A request for leave to file a successive petition based on actual innocence
should only be denied when it is clear from a review of the petition and supporting documentation,
taking as true all well-pleaded allegations that are not positively rebutted by the trial record, that
the petition cannot set forth a colorable claim of actual innocence as a matter of law. Id. ¶¶ 44-45.
Evidence is not positively rebutted simply because it was contradicted by the evidence at trial. Id.
¶ 60. For new evidence to be positively rebutted, the trial record must make clear that no jury could
ever accept the truth of that evidence, such as where it is affirmatively and incontestably
demonstrated to be false or impossible. Id. The denial of leave to file a successive petition alleging
actual innocence is reviewed de novo. Id. ¶ 40.
¶ 34 To establish a claim of actual innocence, the supporting evidence must be newly
discovered, material and not cumulative, and of such conclusive character as to probably change -9- No. 1-18-1926
the result on retrial. Id. ¶ 47. Newly discovered evidence is evidence that was discovered after trial,
which defendant could not have discovered earlier through the exercise of due diligence. Id.
Evidence is material if it is relevant and probative of defendant’s innocence. Id. Noncumulative
evidence adds to the information that the jury heard at trial. Id. Finally, the conclusive character
element, which is the most important element of an actual innocence claim, refers to evidence that,
when considered along with the trial evidence, would probably lead to a different result. Id. The
Robinson court rejected the total vindication or exoneration standard (id. ¶ 55) and held that new
evidence need not be entirely dispositive to be likely to alter the result on retrial; rather, the new
evidence need only place the trial evidence in a different light, thereby undermining the court’s
confidence in the judgment of guilt. Id. ¶ 48. Probability, rather than certainty, is the key for
determining whether the jury would reach a different result after considering the prior evidence
along with the new evidence. Id. Leave of court to file a successive petition should be granted
when defendant’s supporting documentation raises the probability that it is more likely than not
that no reasonable juror would have convicted him in light of the new evidence. Id. ¶ 44.
¶ 35 We note that when the postconviction court here denied defendant’s motion for leave to
file his successive petition in May 2018, it did not have the benefit of our supreme court’s analysis
in Robinson, which was not decided until 2020. Understandably, then, the postconviction court’s
analysis of defendant’s motion relied on the case law developed up to that time and did not reflect
Robinson’s clarification of the standard for evaluating claims of actual innocence in the context of
a motion for leave to file a successive petition. In deciding defendant’s appeal, though, both parties
agree that we must consider whether his motion for leave to file a successive petition based on
actual innocence met the Robinson standard.
-10- No. 1-18-1926
¶ 36 Defendant argues that he has met the Robinson standard for granting leave to file a
successive petition raising a claim of actual innocence. First, defendant contends that his claim is
based on newly discovered evidence, specifically, Griffin’s and Williams’ recantations of their
trial testimony. See People v. Harper, 2013 IL App (1st) 102181, ¶ 42 (holding that a witness’s
recantation of his trial testimony was newly discovered where “due diligence could not have
compelled [him] to testify truthfully at the first trial”). Likewise, the affidavits from McGee,
Barrett and Jackson were also newly discovered as they did not come forward with their knowledge
of the circumstances surrounding the shooting until after the trial.
¶ 37 In denying defendant leave to file, the postconviction court found that it could not consider
Griffin’s letter as it was not an affidavit. However, defendant correctly points out that Griffin’s
letter constituted “other evidence” under the Act that could properly be received as proof. See 725
ILCS 5/122-6 (West 2018) (“The court may receive proof by affidavits, depositions, oral
testimony, or other evidence”) (emphasis added). The postconviction court also rejected Jackson’s
affidavit because it contained hearsay, but under Robinson, the fact that the affidavit contained
hearsay that would be inadmissible at retrial does not render it legally insufficient for
postconviction proceedings, where the rules of evidence do not apply. Robinson, 2020 IL 123849,
¶ 78 (citing Illinois Rules of Evidence 1101(b)(3)(eff. Sept. 1, 2019)).
¶ 38 Second, defendant contends that his evidence was material, as it was relevant and probative
of his claim of self-defense (i.e., his innocence) based on Griffin pointing a gun at him first. The
evidence was non-cumulative where nobody testified at trial to seeing Griffin with a gun prior to
the shooting.
-11- No. 1-18-1926
¶ 39 Finally, defendant contends that his new evidence that Griffin brandished the gun prior to
the shooting meets Robinson’s “conclusive character” requirement as it places the trial evidence
in a different light and undermines the court’s confidence in the judgment of guilt.
¶ 40 The State concurs with defendant’s arguments that he met the Robinson standard for
granting leave to file a successive petition. We agree that the Robinson standard has been met and
reverse the denial of defendant’s motion for leave to file a successive petition and remand for
second-stage proceedings thereon. In so holding, we note that the postconviction court found that
defendant’s claim of actual innocence was barred by res judicata as it had been addressed on his
first appeal from his conviction. Review of our order issued on the first appeal shows that we never
addressed defendant’s contention that he was actually innocent based on the evidence that Griffin
pointed the gun at him prior to the shooting. Nor was defendant’s claim of actual innocence
addressed in our order issued on the second appeal from the summary dismissal. Accordingly, res
judicata is not applicable here.
¶ 41 Next, we address whether defendant satisfied the cause and prejudice test for filing a
successive postconviction claim that his sentence violated the proportionate penalties clause as
applied to him. Defendant claims that we need not address this issue, that as we are reversing and
remanding for second-stage proceedings on his actual innocence claim, the entire petition
(including his proportionate penalties claim) must be remanded because partial summary
dismissals of a petition at the first stage of proceedings are not permitted. See People v. Rivera,
198 Ill. 2d 364, 374 (2001) (“summary partial dismissals made during the first stage of a post-
conviction proceeding are not permitted under the Act”). Defendant’s argument fails because the
instant case involves the denial of leave to file a successive petition, not a first-stage summary
dismissal. On appeal from the postconviction court’s denial of leave to file a successive petition, -12- No. 1-18-1926
we evaluate each individual claim separately. People v. Haud, 2016 IL App (1st) 150583, ¶ 50
(citing People v. Pitsonbarger, 205 Ill. 2d 444, 463 (2002)). “Each claim must either meet the
cause and prejudice test or, if the petitioner makes a claim of actual innocence, he must show that
newly discovered evidence would probably change the result on retrial.” Id. We have already
addressed defendant’s actual innocence claim and therefore we proceed to address whether his
proportionate penalties claim meets the cause and prejudice test such that we should reverse the
denial of his leave to file that claim and remand for second stage proceedings. Our review is de
novo. People v. Ross, 2020 IL App (1st) 171202, ¶ 13.
¶ 42 Defendant shows cause by identifying an objective factor that impeded his ability to raise
a specific claim during his initial postconviction proceedings. 725 ILCS 5/122-1(f)(2018). He
shows prejudice by demonstrating that the claim not raised during his initial postconviction
proceedings so infected the trial that the resulting conviction or sentence violated due process. Id.
¶ 43 Defendant has shown cause here because his proportionate penalties claim is based on
Illinois cases decided after he filed his initial postconviction petition in 2013, which interpreted
and expanded Miller v. Alabama, 567 U.S. 460 (2012). See People v. Davis, 2014 IL 115595, ¶ 42
(a defendant establishes cause when the legal basis for his claim was not available to him when he
filed his initial petition).
¶ 44 To address the prejudice component, we must first discuss Miller and its Illinois progeny.
In Miller, the United States Supreme Court held that the eighth amendment “forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile offenders” convicted
of homicide. Miller, 567 U.S. at 479. The Miller court noted that “children are constitutionally
different from adults for purposes of sentencing.” Id. at 471. As opposed to adults, children show:
(1) “a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, -13- No. 1-18-1926
impulsivity, and heedless risk-taking,” (2) heightened vulnerability to “negative influences and
outside pressures” from family and peers and an inability to extricate themselves from crime-
producing settings, and (3) less fixed traits, and their actions are “less likely to be evidence of
irrretrievabl[e] deprav[ity].” (Internal quotations omitted.) Id. Before a life sentence can be
imposed, the sentencing court must consider “mitigating circumstances” such as “an offender’s
youth and attendant characteristics.” Id. at 483, 489.
¶ 45 The Illinois Supreme Court has held that Miller applies to discretionary as well as
mandatory life sentences (People v. Holman, 2017 IL 120655, ¶ 40) and also to de facto life
sentences, or sentences that “cannot be served in one lifetime” and have “the same practical effect
on a juvenile defendant’s life as would an actual mandatory sentence of life without parole”
(People v. Reyes, 2016 IL 119271, ¶¶ 9-10). Our supreme court has further held:
“Under Miller ***, a juvenile defendant may be sentenced to life imprisonment
without parole, but only if the trial court determines that the defendant’s conduct showed
irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the
possibility of rehabilitation. The court may make that decision only after considering the
defendant’s youth and attendant characteristics. Those characteristics include, but are not
limited to, the following factors: (1) the juvenile defendant’s chronological age at the time
of the offense and any evidence of his particular immaturity, impetuosity, and failure to
appreciate risks and consequences; (2) the juvenile defendant’s family and home
environment; (3) the juvenile defendant’s degree of participation in the homicide and any
evidence of familial or peer pressures that may have affected him; (4) the juvenile
defendant’s incompetence, including his inability to deal with police officers or prosecutors
-14- No. 1-18-1926
and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects
for rehabilitation.” Holman, 2017 IL 120655, ¶ 46.
¶ 46 In People v. Harris, 2018 IL 121932, our supreme court addressed the 18-year-old
defendant’s facial argument that the eighth amendment protections for juveniles should be applied
to all “young adults under the age of 21” and his as-applied argument that his mandatory aggregate
sentence of 76 years’ imprisonment violated the proportionate penalties clause of the Illinois
Constitution under Miller. Id. ¶¶ 37, 53.
¶ 47 The supreme court rejected defendant’s facial challenge that the eighth amendment
protections as articulated in Miller should apply not just to juveniles under the age of 18, but also
to young adults ages 18 to 21, noting that the United States Supreme Court has clearly and
consistently drawn the line at age 18 for purposes of juvenile sentencing protections in the eighth
amendment context. Id. ¶¶ 58, 61.
¶ 48 While Harris foreclosed defendant’s eighth amendment argument, it pointedly left open
the possibility for an offender between ages 18 and 21 to make an as-applied challenge under the
proportionate penalties clause. Defendant contended in his proportionate penalties argument that
the evolving science on juvenile maturity and brain development highlighted in Miller applied not
only to juveniles under the age of 18 but also to young adults from 18 to 21. Id. ¶ 46. Defendant,
though, had raised his proportionate penalties claim for the first time on direct appeal and thus the
trial court had not conducted an evidentiary hearing or made any findings of fact on his specific
circumstances. Id. ¶ 40. The supreme court noted that as-applied constitutional challenges are
dependent on the specific facts and circumstances of the person raising the challenge and therefore
the record must be “sufficiently developed in terms of those facts and circumstances for purposes
of appellate review.” (Internal quotations omitted.) Id. ¶ 39. The record contained no evidence -15- No. 1-18-1926
about how the evolving science on juvenile maturity and brain development applies to defendant’s
specific facts and circumstances. Id. ¶ 46. Accordingly, the supreme court found that defendant’s
as-applied challenge under the proportionate penalties clause was premature and that such a claim
was more appropriately resolved under the Act. Id. ¶¶ 46, 48.
¶ 49 Defendant here argues that he was only 25 years old at the time of the offense and that his
76-year sentence constituted a de facto life sentence that, as applied to him, violates the
proportionate penalties clause and is a proper subject for postconviction proceedings under Miller
and Harris. Defendant cites in support a growing body of recent scientific evidence indicating that
the brains of young adults continue to develop into their early twenties and he argues that such a
“scientific consensus” supports a finding that as an “emerging young adult” he should have been
allowed to make a record through postconviction proceedings that at age 25, his brain was still
developing, and that he was not incorrigible or incapable of rehabilitation. Defendant contends
that his motion and supporting material satisfy the prima facie showing of prejudice prerequisite
to the filing of a successive postconviction petition as to his proportionate penalties argument, and
therefore his motion for leave to file a successive petition was improperly denied as to this claim.
¶ 50 Defendant relies on People v. House, 2019 IL App (1st) 110580-B, pet. for leave to appeal
granted, No. 125124 (Jan. 29, 2020). In House, the 19-year-old defendant was convicted of two
counts of first degree murder where he acted as a lookout while members of his gang killed two
victims for selling drugs in their territory. Id. ¶¶ 5, 14, 17. He was sentenced to two consecutive
mandatory life sentences. Id. ¶ 19. Defendant filed an amended postconviction petition alleging in
pertinent part that his sentence violated the proportionate penalties clause as applied to him. Id. ¶
23. The postconviction court dismissed defendant’s amended petition at the second stage and
defendant appealed. Id. ¶¶ 23-24. -16- No. 1-18-1926
¶ 51 On appeal, defendant argued that his sentence violated the proportionate penalties clause
as applied to him because “he had just turned 19 years old at the time of the commission of the
murders, was minimally culpable, and had no prior violent criminal history, but he received a
mandatory natural life sentence without the consideration of these mitigating factors.” Id. ¶ 33.
We found that while defendant was not a juvenile, his “young age of 19 is relevant under the
circumstances of this case.” Id. ¶ 46. We noted recent research and articles indicating that the
brains of young adults do not finish developing until the mid-twenties and as a result, young adults
are more similar to adolescents than fully mature adults “in important ways.” Id. ¶ 55. Specifically,
they are more susceptible to peer pressure, are less future-oriented, and more volatile in
emotionally charged settings. Id.
¶ 52 We questioned the propriety of a mandatory natural life sentence imposed on a 19-year-
old defendant convicted on an accountability theory for acting as a lookout and taking orders from
higher ranking gang members and noted the unfairness that he received the same sentence as the
person who pulled the trigger. Id. ¶ 46. Finding that defendant’s mandatory natural life sentence
shocks the moral sense of the community (id. ¶ 64), we vacated his sentence and remanded for a
new sentencing hearing at which he would be given the chance to present evidence supporting his
as-applied proportionate penalties claim under Miller and its Illinois progeny. Id. ¶ 65.
¶ 53 There is a significant factual difference between the instant case and House, as defendant
here was 25 years old when he committed the offenses, not a 19-year-old teenager as in House.
Whereas the defendant in House was only about two years too old to still be considered a juvenile,
defendant here was about eight years too old. We also note that unlike House, defendant was
convicted as a principal who pulled the trigger, not on an accountability theory. See People v.
Handy, 2019 IL App (1st) 170213 and People v. Ramsey, 2019 IL App (3d) 160759 (distinguishing -17- No. 1-18-1926
House where the 18-year-old defendant in each case was an active participant in the crime). But
see People v. Daniels, 2020 IL App (1st) 171738, and Ross (holding that at the leave-to-file-a-
successive-petition stage for offenders between the ages of 18-21, the defendant’s degree of
participation in the crime should not utterly disqualify him from raising an as-applied proportionate
penalties claim under Miller and progeny).
¶ 54 A more recent case, People v. Rivera, 2020 IL App (1st) 171430, is informative as to how
we should resolve defendant’s proportionate penalties argument. In Rivera, defendant was
convicted of first degree murder and five counts of armed robbery and sentenced to 55 years’
imprisonment. Id. ¶ 1. On appeal, defendant contended that the postconviction court erred by
denying him leave to file a successive petition. Id. Defendant, who was six days short of his twenty-
fourth birthday at the time of the offense, argued that his sentence violated the proportionate
penalties clause as applied to him and he cited Harris and House in support. Id. ¶ 23.
¶ 55 We found that defendant showed cause for failing to raise the proportionate penalties claim
in the earlier postconviction proceedings, as the cases he relied on were decided after he filed his
initial petition. (Id. ¶ 20). Addressing the prejudice component, we looked at legislative enactments
for help in determining the age at which a person becomes an adult with a fully developed brain
and noted that there were a number of legislative enactments indicating that adulthood begins at
age 21 2, meaning that youthful offenders between the ages of 18 and 21 arguably can claim
2 See Pub. Act. 100-1182, § 5 (eff. Jun. 1, 2019), which makes a person convicted of first degree murder eligible for parole after serving only 20 years, if he was under 21 years old at the time of the offense and was sentenced after the law took effect; and the Juvenile Court Act of 1987 (705 ILCS 405/1-3(10), 5- 105(10) (West 2018)), which defines a minor as “a person under the age of 21 years subject to this Act” and defines an adult as “a person 21 years of age or older” (705 ILCS 405/1-3(2) (West 2018)). The Illinois legislature has also prohibited the sale of nicotine and tobacco products to persons under 21 (720 ILCS 675/1 (West Supp. 2019), prohibited the sale of alcohol products to persons under 21 (235 ILCS 5/6- 16(a)(i)(West 2018)), prohibited their gun ownership without parental permission (430 ILCS 65/4(a)(2)(i) -18- No. 1-18-1926
proportionate penalties protections under Miller and its progeny the same as juvenile offenders
because their brains have not yet fully developed. Id. ¶ 25. However, defendant was not under 21
at the time of his offense (unlike the offenders in Harris and House, who were 18 and 19,
respectively), but he was rather almost 24 years old. Defendant contended 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
like himself.” Id. ¶ 27. We disagreed, holding that “[i]f such an extension should be made *** it
should be made by our legislature or our highest court” as they are “in a better position to draw
clear, predictable and uniform lines for our state.” Id. Accordingly, we found that defendant was
too old to raise an as-applied proportionate penalties claim under Miller and its Illinois progeny
and therefore that he had failed to show he was prejudiced by his to inability to raise such a claim
in his initial petition. ¶ 28. Even if defendant’s age did not make him too old to make his
proportionate penalties claim, he failed to show prejudice because he did not allege facts
supporting his argument that his brain was akin to a juvenile’s brain at the time of the offense. Id.
¶ 26 (“Defendant’s actions in this case set forth none of the immaturity or impetuosity that are the
hallmarks of youth”). We affirmed the denial of his motion for leave to file a successive petition.
Id. ¶ 30.
¶ 56 In the present case, defendant was 25 years old at the time he shot and killed Melcher and
shot and injured Griffin, making him too old under Rivera to raise an as-applied proportionate
penalties challenge pursuant to Miller and its progeny. As a 25-year-old at the time of the shooting,
(West 2018)), and limited Class X sentencing for recidivist offenders to those offenders “over the age of 21 years” (730 ILCS 5/5-4.5-95(b)(West 2018)).
-19- No. 1-18-1926
defendant’s age distinguishes this case from those decisions allowing young adults in their late
teens and early twenties to raise a Miller-based, proportionate penalties challenge. See e.g., People
v. Ross, 2020 IL App (1st) 171202 (age 19); People v. Savage, 2020 IL App (1st) 173135 (age 21
years and 7 months). Also unlike those cases, defendant has alleged no facts showing that the
evolving science on juvenile maturity applied to his specific circumstances, i.e., that his 25-year-
old brain was functionally equivalent to a juvenile’s brain at the time he pulled the trigger. See
Ross, 2020 IL App (1st) 171202, ¶ 26 (to file a successive petition raising an as-applied
proportionate penalties claim under Miller and its Illinois progeny, the non-juvenile defendant
must make factual allegations that there were issues particular to him at the time of his offense,
such as his family history, or evidence of drug addiction or mental health problems, that rendered
him functionally younger than his chronological age.) Defendant points only to his nonviolent
criminal background and the evidence that he passed the GED in prison and has been involved in
his children’s lives as evidence of his capacity for rehabilitation, but even taken as true those
factual allegations in and of themselves do not tend to show that his 25-year-old brain was the
functional equivalent of a juvenile’s when he killed Melcher and injured Griffin. In fact,
defendant’s earning of the GED and his involvement with his children reflect a certain level of
maturity, not immaturity. In the complete absence of any well-pleaded facts showing that
defendant’s individual characteristics functionally rendered him at least eight years younger than
his chronological age of 25 so as to make him akin to a juvenile, his as-applied proportionate
penalties argument under Miller and its progeny fails. Accordingly, defendant has not shown that
he was prejudiced by his inability to raise the as-applied proportionate penalties claim in his initial
petition. Therefore, we affirm the denial of his motion for leave to file a successive petition raising
that claim. -20- No. 1-18-1926
¶ 57 For all the foregoing reasons, we affirm the denial of defendant’s motion for leave to file a
successive petition alleging an as-applied proportionate penalties violation, reverse the denial of
his motion for leave to file a successive petition alleging actual innocence, and remand for second-
stage proceedings on the actual innocence claim only.
¶ 58 Affirmed in part, reversed in part, and remanded.
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