People v. Robinson

2025 IL App (1st) 231419-U

• Court: Appellate Court of Illinois
• Decided: January 27, 2025
• Docket: 1-23-1419
• Status: Unpublished

Opinion

2025 IL App (1st) 231419-U

FIRST DIVISION January 27, 2025

No. 1-23-1419

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 Respondent-Appellee, ) Circuit Court of ) Cook County. v. ) ) No. 94 CR 22233 04 TONY ROBINSON, ) ) Honorable Petitioner-Appellant. ) Mary Margaret Brosnahan, ) Judge Presiding. )

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.

ORDER

¶1 Held: The circuit court’s denial of the petitioner’s pro se request for leave to file his third successive postconviction petition is affirmed, where the petitioner failed to establish cause for not raising his youth-based proportionate penalties challenge in an earlier proceeding.

¶2 The petitioner, Tony Robinson, appeals from the circuit court’s denial of his pro se motion

seeking leave to file his third successive postconviction petition pursuant to the Postconviction

Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, the petitioner contends that he No. 1-23-1419

sufficiently established cause and prejudice with respect to his proportionate penalties’ challenge

to his 100-year extended-term sentence, imposed for a crime he committed when he was only 22

years old (see Ill. Const. 1970, art I, § 11). For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 Because the record before us is voluminous as it spans over 30 years, we set forth only

those facts and procedural history relevant to the resolution of the issues raised here. In 1994,

together with three codefendants (Jamal White, Terrell Young, and Demetrius Jones) the petitioner

was charged with first degree murder for his involvement in the August 19, 1994, shooting death

of the nine-year-old victim, Joseph Orr. The petitioner was initially found unfit to stand trial and

subject to involuntary admission after he displayed symptoms of “schizophrenic disorder” and

serious “mood disorder.” A year later, after a fitness restoration hearing, the petitioner was found

fit for trial with the assistance of medication. The petitioner then proceeded with a jury trial 1 at

which the following relevant evidence was adduced.

¶5 On August 19, 1994, together with several other children, the victim was playing in front

of a makeshift club house, which was inside the basement of 4530 South Champlain Avenue, in

Chicago. The area was controlled by two rival street gangs, the Gangster Disciples, who operated

from the rowhouses on the corner of 45th Street and South Champlain Avenue, and the Black P

Stones, who sold narcotics from a Chicago Housing Authority high-rise on 45th Street and Evans

Avenue. That summer, the two street gangs were warring with each other and shootings on the

block were common every week.

¶6 Melvin Irons testified that in the early afternoon hours of August 19, 1994, he spoke to a

1 The petitioner’s jury trial was held simultaneously with codefendant White’s jury trial, but before separate juries. Codefendant White was found guilty of first-degree murder and sentenced to 50 years’ imprisonment. 2 No. 1-23-1419

group of men in the parking lot of 4445 South Evans Avenue, whereupon he heard the petitioner

state that he had been shot at the night before and was “probably going to do something at 45th

[Street]” and “retaliate” and “start shooting back at them.”

¶7 Around 3:50 p.m. that day, numerous witnesses heard gunshots in the area. Three

eyewitnesses identified the petitioner as the shooter and a fourth observed the petitioner running

from the scene with a gun in his hand. Specifically, Derrick Stroud, a member of the Gangster

Disciples, testified that together with another friend and fellow gang-member, he was standing

next to several younger children, including the victim, in front of the children’s makeshift club

house, when a maroon car with several men pulled up. Stroud saw the petitioner “hop” out of the

vehicle, run up to them, and start shooting. The petitioner then backed up a little and began

shooting again.

¶8 Two minors, Janieka Johnson and Konaa Bennett, similarly testified that they were walking

by 4530 South Champlain Avenue when they heard gunshots and observed the petitioner running

in their direction with a gun in his hand. The two girls ducked behind some parked vehicles and

then watched as the petitioner fired more shots in the direction of the rowhouses where children

were playing. Afterwards, Bennett observed the petitioner running back to the maroon car and

jumping into the front passenger seat.

¶9 The fourth eyewitness, Angie Henderson, testified that she was inside her home at 4526

South Champlain Avenue when she heard about six gunshots. Henderson ran out onto her porch,

which faced Champlain Avenue, and saw the petitioner running down the street with a gun in his

hand. She then went downstairs and saw the nine-year-old victim lying on the ground.

¶ 10 A subsequent autopsy revealed that the victim was shot once through the back and died as

a result of his injuries.

3 No. 1-23-1419

¶ 11 Evidence at trial further established that upon his arrest, the petitioner initially denied his

participation in the shooting, but eventually gave a statement to the police implicating himself in

the murder and identifying the murder weapon. 2 In his statement, however, the petitioner claimed

that he had acted only as a “lookout” and that codefendant White was the shooter.

¶ 12 Specifically, the petitioner claimed that several days prior to the shooting, he and

codefendant White were standing with a group of friends at 4445 South Evans Avenue, when they

were shot at from the direction of the row houses controlled by the Gangster Disciples. The group

ran back into their building whereupon codefendant White exclaimed that he was going to “kill

them.”

¶ 13 The petitioner acknowledged that he was a former member of the Black Disciples street

gang 3 but was seeking to become a member of the Black P Stones because the Black Disciples had

“jumped” on him “a while ago.” On the morning of August 19, 1994, codefendant White told the

petitioner that he was going to “take care of business,” which the petitioner understood to mean

that he was going to shoot at the Gangster Disciples in the row houses. Codefendant White wanted

the petitioner to go “out there” and act as a “lookout.” Before they left the building, a man named

Raheem gave the petitioner a gun. The petitioner took the gun and passed it on to codefendant

Jones outside of the building through a gate. Upon codefendant White’s instructions, the petitioner

then joined him and codefendant Young inside a car. The three of them then drove through an

alley. The petitioner claimed that while inside the car, codefendant White pulled out a gun from

under his seat and made sure it was loaded. Codefendant White was then dropped off near a church,

while the petitioner and codefendant Young returned to the parking lot of their building. The

2 Prior to trial, the petitioner unsuccessfully moved to have this statement suppressed on the basis that it was the product of police coercion and his unmedicated mental illness. 3 Evidence at trial established that at that time, the Black Disciples were associates of the Gangster Disciples. 4 No. 1-23-1419

petitioner claimed that it was not until after they returned to that parking lot that he heard gunshots.

He claimed that he did not shoot anyone and was not present for the shooting.

¶ 14 After the State rested, in his defense, the petitioner first presented the testimony of three

eyewitnesses contradicting the State’s identification of him as the shooter. Thelma Flemister, who

was a minor at the time of the shooting, testified that she was sitting on a railing next to the

children’s makeshift club with her nine-year-old brother who was good friends with the victim.

Thelma averred that contrary to his testimony at trial, Stroud was not standing near the children

when the shooting began. While Thelma did not see who was shooting, she believed there to be

more than one shooter and more than one gun.

¶ 15 Thelma’s younger sister, Joy Flemister, similarly testified that on August 19, 1994, she was

with the victim and several other children near their makeshift clubhouse when she observed the

shooter jump from behind the bushes on Champlain Avenue and started firing in their direction.

Joy, however, claimed that the petitioner was not the shooter, but rather a man whom she knew by

the name “Tick.”

¶ 16 Finally, Joy’s and Thelma’s mother, Willie Mae Flemister, testified that on the day of the

incident she was standing near the back door of her house at 709 East 45th Street, when she heard

gunshots from the direction of the clubhouse. A few minutes later, she observed “Tick,” whom she

knew by the first name “Melvin,” running towards her home with a gun in his hand. Willie Mae

testified that immediately after the shooting she attempted to speak with the police about what she

had seen but that the police refused to listen to her when she tried to tell them about “Tick.”

¶ 17 After the testimony of these three eyewitnesses, the petitioner called his mother, Alberta

Robinson-Boyd, to testify about his learning difficulties and mental health issues. The petitioner’s

mother testified that the petitioner was always enrolled in school for slow learners. When he was

5 No. 1-23-1419

13 years old, the petitioner was stabbed in the head and beaten with a pipe, which slowed his

mental capacity even more. The petitioner’s mother also averred that in 1994, the petitioner was

taking four different medications for his mental health issues, including Haldol, Cogentin,

Thorazine, and Prozac. 4 He had been on these medications since 1988 but sometimes did not take

them.

¶ 18 After the parties’ closing arguments, the jury proceeded to deliberate. During its

deliberations, the jury sent out two notes to the judge. The first note requested a partial transcript

of Stroud’s testimony. The circuit court told the jurors that the transcript was unavailable, that they

had heard all the evidence and that they should continue to deliberate. The second jury note stated:

“[D]ue to the evidence in this case we are uncomfortable with the choices provided for a

decision of guilty for first degree murder. While we do feel beyond a reasonable doubt that

[the petitioner] was involved in the death of [the victim], we would like it noted that we

cannot conclude beyond a reasonable doubt that [the petitioner] was responsible for the

shooting of [the victim.]” (Emphasis in original.)

The circuit court informed the jurors that they had been “instructed with regard to the law

concerning responsible” (i.e., the accountability instruction) and to continue to deliberate.

¶ 19 The jury subsequently found the petitioner guilty of first-degree murder.

¶ 20 At the sentencing hearing, the parties presented evidence in aggravation and mitigation.

The State argued that the court should impose an extended term sentence because the victim was

4 We take judicial notice of the fact that Haldol is an anti-psychotic, Cogentin aids in muscle control, Thorazine is a mood regulator, and Prozac is an antidepressant. See e.g., Kramer v. Ruiz, 2021 IL App (5th) 200026, ¶ 32, n. 3 (citing Aurora Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, ¶ 37, 992 N.E.2d 125) (this court may take judicial notice of readily available facts that aid in the disposition of the issues on appeal); People v Crawford, 2013 IL App (1st) 100310, ¶ 118, n. 9 (this court may take judicial notice of information on a public website). 6 No. 1-23-1419

under 12-years-old 5 and this was a gang-related revenge killing during which the petitioner

completely disregarded the presence of children on the scene. In addition, the State asserted that

the petitioner had a long history of delinquency and escalating criminal activity, and that he was

“rotten from the get-go.” Relying on the presentence investigation report (PSI) the State pointed

out that in 1983, the petitioner committed theft when he was only 11 years old (case No. 83 J

010419) for which he received continuance by supervision (Ill. Rev. Stat. 1983, ch. 37, par. 704-

7). A year later, as a 12-year-old, the petitioner committed aggravated arson, for which he was

given one year of probation (case No. 84 J 015270). 6

¶ 21 According to the State, in 1988, the petitioner “graduated to the big time.” That year, as a

16-year-old, the petitioner was charged as an adult with manufacture/delivery of a controlled

substance, to which he pleaded guilty, in exchange for 2 years of felony probation (case No. 88

CR 1847). While on probation, however, in 1989, the petitioner committed two new offenses: theft

(case No. 89 CR 25282) and residential burglary (case No. 89 CR 25974). The theft case involved

a 37-year-old female victim, who was approached by the petitioner while she was seated on a CTA

train. The petitioner grabbed her necklace and yanked it off her neck. In an attempt to prevent the

petitioner from taking her necklace, the victim received scratches on her right hand but

subsequently successfully chased the petitioner onto the platform. The petitioner pleaded guilty to

both theft and residential burglary in exchange for a five-year prison term.

¶ 22 After being released from prison and while on parole, in 1992, the petitioner committed

5 Because the victim was under 12 years old, the circuit court had the discretion to impose a sentence beyond the statutory range of 20 to 60 years’ imprisonment for first degree murder (730 ILCS 5/5-8-1(a)(1)(a) (West 1994)), and instead impose an extended-term sentence, anywhere between 60 to 100 years’ imprisonment (730 ILCS 5/5-8-2, 5/5-3.2(b)(4)(i) (West 1994)). 6 The PSI notes that this probation was terminated satisfactorily.

7 No. 1-23-1419

yet another crime—robbery (case No. 92 CR 17226). The victim in that case was an 11-year-old

paper boy who was accosted by the petitioner, on his morning paper route. The petitioner placed

the victim in a headlock and threatened to kill him if he did not give him money, then pushed the

victim to ground and took ten dollars from his shoe. The petitioner again pleaded guilty in

exchange for four years imprisonment but was paroled after only two. While on parole, he

committed the instant crime.

¶ 23 Under this record, the State argued that despite being given numerous opportunities for

improvement, the petitioner chose to continue a life of crime, and therefore had no rehabilitative

potential. According to the State, the court could not find “a more hardened criminal” deserving

of a 100-year sentence.

¶ 24 In mitigation, defense counsel argued that the petitioner was not deserving of an extended

term sentence because of his difficult childhood, mental health issues and his minor involvement

in the crime. First, defense counsel asserted that the petitioner had acted only as a “lookout” during

the shooting. Counsel pointed out that the note sent by the jury during its deliberations evinced

that the jury had found the petitioner guilty under an accountability theory and not as the principal.

¶ 25 Next, counsel argued that while the petitioner admitted to having prior gang affiliations, he

was essentially “a misfit in the wrong place at the wrong time.” He was living in a Black P Stone

area but was formerly a Black Disciple and was trying to fit in with a gang that really did not want

him there.

¶ 26 Third, counsel argued that the petitioner was disadvantaged from the start because he had

a very rough childhood and suffered from serious mental health issues. In support, counsel relied

on the PSI and asked the court to admit into evidence the psychiatric evaluations completed while

the petitioner was involuntarily committed for treatment before he was found fit to stand trial on

8 No. 1-23-1419

medication. According to these evaluations, the petitioner never knew his father and was raised by

his grandmother because his mother was a heroin and cocaine addict and had served time in prison.

The petitioner had problems concentrating in school, was hyperactive, and attended classes for

slow learners, finishing only sixth grade. According to his mother, he could not read or write. In

addition, at the age of 13, he was stabbed in the head and beaten with a pipe after which he lost

consciousness and was hospitalized for two weeks. Since then, he has had even more cognitive

problems.

¶ 27 The petitioner also had a long history of substance abuse. Because of his mother’s

addiction, he was exposed to alcohol and drugs at an early age and began consuming them when

he was only 13 years old. He consumed about 80 to 120 ounces of beer per day, experiencing

blackouts. He used heroin, cocaine, phencyclidine (PCP), and marijuana daily and was addicted to

cocaine. In 1988, when he was 16-year-old, the petitioner was hospitalized in Tinley Park Hospital,

secondary to a suicide attempt by hanging, which he attempted because he was depressed. While

in hospital, he was treated with Haldol but stopped taking the drug after he was discharged.

¶ 28 Defense counsel argued that despite these impediments, the petitioner was now trying to

better himself and was reading the Bible in jail. Counsel therefore sought a term-of-years sentence,

so that the petitioner had some “hope” and an opportunity to change his life in the future.

¶ 29 In allocution, the petitioner asserted that he felt sorry for “what happened to the little boy”

but that he “didn’t do it.”

¶ 30 The circuit court sentenced the petitioner to an extended term of 100-years imprisonment.

In doing so, the court noted that it had considered all the factors in mitigation and aggravation and

found that “none of the statutory factors in mitigation apply to this [petitioner.]” The court noted

that it found “particularly aggravating” that the incident was gang related. As the court explained:

9 No. 1-23-1419

“And in this case as happens in so many cases, the victim is an innocent bystander

of indiscriminate gang violence. In this case the victim was a nine-year-old boy who got

shot and killed because this [petitioner], because of some perceived offense or slight

against him by some rival gang or by his desire to be accepted into his new gang decided

to start firing bullets into an area populated by children.

And while we know from the evidence that the intended victim in this shooting was

a rival gang member, the real victim, the person standing next to the intended victim took

the bullet. That was a nine-year-old boy who is no longer with us.”

¶ 31 The circuit court specified that “from the evidence” it was clear to the court that the

petitioner was the shooter and not just a “lookout” and that a lengthy sentence was necessary to

deter others from committing the same crime.

¶ 32 In addition, the court found relevant that the petitioner had a substantial criminal history,

and that this incident was his fifth felony conviction. The court explained that despite being given

opportunities in the past either through short incarcerations or through probation to better himself

and lead a fruitful life, the petitioner continued to resort to crime. The court therefore found that

the petitioner was a danger to society and that “all hope” for him was “gone.” As the court

explained, the only hope that remained was sentencing the petitioner to a “period of incarceration

long enough so that he is not released from the penitentiary until he is old and incapable of

committing another crime.”

¶ 33 On May 16, 1997, the petitioner filed a motion to reconsider and reduce his sentence,

arguing that the circuit court had given “absolutely no consideration to [his] special

circumstances.” Specifically, the petitioner claimed that his sentence was unduly harsh because,

among other things, he had a difficult childhood, “was not blessed with superior mental abilities,”

10 No. 1-23-1419

had the misfortune of a head injury that slowed his mental processes and suffered from mental

illness.

¶ 34 After the circuit court denied that motion, the petitioner appealed his conviction and

sentence. On direct appeal, he argued that: (1) the circuit court erred in admitting gang-related

evidence and evidence of weapons, which were not connected to the shooting at his trial; (3) the

circuit court erred in permitting the State to cross-examine defense witnesses on matters outside

the scope of direct examination; and (3) the State impermissibly elicited testimony about the young

age of the victim and made improper remarks in closing arguments, which inflamed the jury and

affected the outcome of his trial. The petitioner further asserted that cumulatively these errors

denied him his due process right to a fair trial. In addition, he argued that his mittimus incorrectly

reflected more than one conviction. On August 6, 1999, we affirmed the petitioner’s conviction

and corrected the mittimus to reflect a single conviction for first-degree murder. See People v.

Robinson, No. 1-97-2639 (unpublished order pursuant to Illinois Supreme Court Rule 23) (August

6, 1999), pet. for leave to appeal denied, 186 Ill. 2d 584 (1999) (Robinson I)).

¶ 35 On March 24, 2000, the petitioner filed a pro se postconviction petition alleging ineffective

assistance of appellate counsel. On June 7, 2000, the circuit court summarily dismissed that

petition, finding it to be frivolous and patently without merit. We affirmed that dismissal on March

8, 2002. See People v. Robinson, No. 1-00-2785 (unpublished order pursuant to Illinois Supreme

Court Rule 23) (March 8, 2002), pet. for leave to appeal denied, 202 Ill. 2d 691 (2003) (Robinson

II).

¶ 36 On December 19, 2005, the pro se petitioner filed his first successive postconviction

petition, alleging several claims related to his fitness to stand trial with the assistance of

medication. The circuit court denied the petitioner’s request for leave to file his successive petition,

11 No. 1-23-1419

finding that the petitioner had failed to allege, let alone meet, the cause and prejudice test, which

was a prerequisite to filing a successive petition. We affirmed the circuit court’s decision on June

26, 2008. See People v. Robinson, No. 1-06-128 (unpublished order pursuant to Illinois Supreme

Court Rule 23) (June 26, 2008) (Robinson III).

¶ 37 On March 10, 2010, the pro se petitioner sought leave to file his second successive

postconviction petition, alleging that he was denied his due process rights because he was

involuntarily medicated in order to attain fitness to stand trial. On March 17, 2010, the circuit court

denied the petitioner’s request finding that he failed to meet the cause and prejudiced test. After

the petitioner appealed to this court, citing to Pennsylvania v. Finley, 481 U.S. 551 (1987), the

State Appellate Defender filed a motion seeking leave to withdraw as appellate counsel. On June

17, 2011, we granted the Appellate Defender’s motion and affirmed the circuit court’s denial of

the petitioner’s request for leave to file his second successive petition. People v. Robinson, No. 1-

10-1108 (unpublished summary order pursuant to Illinois Supreme Court Rule 23(c)) (June 17,

2011) (Robinson IV).

¶ 38 On February 2, 2017, the petitioner filed a pro se section 2-1401 petition for relief from

judgment (735 ILCS 5/2-1401 (West 2016)) asserting that his extended-term sentence was void

because: (1) the victim’s age was not charged in the indictment, pleaded to, nor proven beyond a

reasonable doubt; (2) he was actually innocent; (3) the circuit court was precluded from sentencing

him to an extended term sentence because the jury had found him guilty under accountability

principles; (4) his de facto life sentence imposed on an immature young adult with a history of

mental health issues was unconstitutional; 7 and (5) the statute under which he was sentenced was

7 With respect to this claim, the petitioner alleged that pursuant to the decisions in Miller v. Alabama, 567 U.S. 460 (2012) and People v. House, 2015 IL App (1st) 110580, his 100-year de facto life sentence violated both the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and the Illinois proportionate penalties clause (Ill. Const. 1970, art. I, Ill. § 11). 12 No. 1-23-1419

declared unconstitutional and never reenacted. 8

¶ 39 On March 24, 2017, the circuit court denied the petitioner’s section 2-1401 petition for

relief from judgment and the petitioner appealed to this court. After the State Appellate Defender

appointed to represent him filed a motion seeking to withdraw as counsel by citing to Finley, 481

U.S. 551, we granted that motion and affirmed the circuit court’s denial of the petitioner’s section

2-1401 petition for relief from judgment. See People v. Robinson, No. 1-17-1381 (unpublished

order pursuant to Illinois Supreme Court Rule 23(c)) (May 22, 2019) (Robinson V).

¶ 40 On October 28, 2019, the petitioner filed the instant pro se motion for leave to file his third

successive postconviction petition. Therein he alleged, inter alia, that his discretionary 100-year

de facto life sentence violated both the eighth amendment (U.S. Const., amend VIII) and the

Illinois proportionate penalties clause (Ill. Const. 1970, art. I, Ill. § 11). The petitioner asserted that

he had demonstrated cause for failing to raise this argument earlier because, inter alia, the

scientific research establishing that young adult brains, such as his are more akin to juveniles than

adults, was not available at the time he filed his first pro se postconviction petition. The petitioner

argued that he had demonstrated prejudice because his youth was not considered at sentencing.

¶ 41 On February 16, 2023, the circuit court denied the petitioner’s motion for leave to file his

third successive postconviction petition. The circuit court held that the petitioner failed to establish

cause and prejudice. The petitioner now appeals.

¶ 42 II. ANALYSIS

¶ 43 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a

means by which criminal defendants may address substantial violations of their constitutional

8 In People v. Cervantes, 189 Ill. 2d 80, 98 (1999), our supreme court declared void ab initio the so-called “Safe Neighborhoods Law” (Pub. Act., 88-680 (eff. Jan. 1, 1995)), one provision of which included the subsections regarding extended term sentencing under which the petitioner was sentenced. 13 No. 1-23-1419

rights at trial or at sentencing. People v. Edwards, 2012 IL 111711, ¶ 21. The Act is not a substitute

for an appeal, but rather, a collateral attack on a final judgment. Id. Accordingly, issues not

presented in an original or amended petition will be deemed waived, and issues that have

previously been raised and addressed on appeal will be barred pursuant to the doctrine of res

judicata. Id.; see also People v. Sanders, 2016 IL 118123, ¶ 24 (citing 725 ILCS 5/122-3 (West

2014)).

¶ 44 The procedural bars of waiver and res judicata can be overcome only where fundamental

fairness so requires. People v. Pitsonbarger, 205 Ill. 2d 444, 462 (2002). In proceedings under the

Act, fundamental fairness is established by satisfying the requirements of the cause-and-prejudice

test. See People v. Clark, 2023 IL 127273, ¶¶ 44-45.

¶ 45 Consistent with these principles, the Act contemplates the filing of only one petition

without leave of court. People v. Lusby, 2020 IL 124046, ¶ 27; Edwards, 2012 IL 111711, ¶ 23;

see also 725 ILCS 5/122-1(f) (West 2018). To obtain leave of court to file a successive

postconviction petition, the petitioner must demonstrate cause for his failure to raise the claim in

the initial petition and prejudice from that failure. Id. To show cause the petitioner must identify

an objective factor that impeded his ability to raise a specific claim during his initial postconviction

proceedings. Id.; see also Pitsonbarger, 205 Ill. 2d at 462. To show prejudice the petitioner must

demonstrate that the claim not raised during his initial postconviction proceedings so infected the

resulting conviction or sentence that it violated due process. Id. It is the petitioner’s burden to make

a prima facie showing of cause and prejudice before any further proceedings on his claim can

occur. People v. Bailey, 2017 IL 121450, ¶ 24 (citing People v. Smith, 2014 IL 115946, ¶ 30).

Failure to state either cause or prejudice will be detrimental to a motion seeking leave to file a

successive petition. Id.

14 No. 1-23-1419

¶ 46 Accordingly, a motion for leave of court to file a successive petition will be denied “when

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.” Smith, 2014

IL 115946, ¶ 35. Our review of the circuit court’s denial of a motion for leave to file a successive

postconviction petition is de novo. Bailey, 2017 IL 121450, ¶ 13.

¶ 47 In the present case, the petitioner contends that the circuit court erred in denying him leave

to file his successive postconviction petition because he sufficiently established both cause and

prejudice with respect to his claim that his discretionary 100-year de facto life sentence, 9 imposed

for an offense that he committed when he was only 22 years old, without proper consideration of

his youth, violated the Illinois proportionate penalties clause (Ill. Const. 1970, art. I, § 11). The

petitioner asserts that he made a prima facie showing of cause for his inability to raise this claim

earlier because the neuroscientific research regarding the development of young adults over the

age of 18 was unavailable to him at the time of his sentencing in 1997 and his initial postconviction

petition in 2000 and began to be addressed only after the 2012 United States Supreme Court

decision in Miller v. Alabama, 567 U.S. 460 (2012). The petitioner further asserts that he made a

prima facie showing of prejudice because without this information the sentencing court had no

opportunity to apply the emerging neuroscientific research to his particular circumstances. The

petitioner argues that in context of this emerging research, his difficult upbringing, childhood

trauma, drug abuse at an early age, and mental health issues, would have supported the conclusion

that at the time he committed the offense, his brain was underdeveloped and more akin to a juvenile

than an adult, and that therefore he was less culpable for his actions, such that the imposition of

9 The parties do not dispute that the 100-year extended term sentence is a discretionary de facto life sentence. 15 No. 1-23-1419

the 100-year sentence violates the Illinois proportionate penalties clause.

¶ 48 We agree with the petitioner that if he were to be sentenced for the same crime today, his

sentencing hearing would likely be very different. For one, the State certainly could not use the

fact that he committed his first offense at the age of 11, and three of his remaining adult felony

offenses before the age of 18, to argue that he was “rotten-from the get-go.” Similarly, it is doubtful

that a judge would find that “no mitigating factors” applied to the petitioner, considering the

petitioner’s seriously disadvantaged childhood, learning difficulties, substance abuse at an early

age, traumatic head injury, and mental health issues.

¶ 49 Nonetheless, for the following reasons, and in light of our supreme court’s most recent

decisions in People v. Dorsey, 2021 IL 123010, People v. Clark, 2023 IL 127273, and People v.

Moore, 2023 IL 126461, we are compelled to conclude that the petitioner cannot establish the

requisite cause for failing to raise his proportionate penalties argument in an earlier proceeding so

as to be able to succeed on his successive petition.

¶ 50 The proportionate penalties clause of our state constitution requires that all penalties “be

determined both according to the seriousness of the offense and with the objective of restoring the

offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. A sentence violates the proportionate

penalties clause when, inter alia, the penalty imposed is “ ‘cruel, degrading, or so wholly

disproportionate to the offense as to shock the moral sense of our community.’ ” Clark, 2023 IL

127273, ¶ 51 (quoting People v. Leon Miller, 202 Ill. 2d 328, 338 (2002)). Our supreme court has

declined to define what constitutes a cruel or degrading sentence because “as our society evolves,

so too do our concepts of elemental decency and fairness, which shape the ‘moral sense’ of the

community.” Id. (quoting Leon Miller, 202 Ill. 2d at 339).

¶ 51 The petitioner’s present youth-based proportionate penalties claim originates with the

16 No. 1-23-1419

United States’ Supreme Court decision in Miller, 567 U.S. 460, which held that in all but the rarest

of circumstances where a crime reflects “irreparable corruption,” the eighth amendment of the

United States’ Constitution (U.S. Const., amend VIII) prohibits the sentencing of juvenile

offenders to mandatory life in prison without the possibility of parole. Id. at 479-80; see also

Montgomery v. Louisiana, 577 U.S. 190, 206-11 (2016) (characterizing the decision in Miller as a

new substantive constitutional rule that must be applied retroactively on state collateral review).

In the aftermath of Miller, our supreme court broadened juvenile protection under the eighth

amendment by extending Miller’s application beyond mandatory natural life sentences to de facto

life sentences (People v. Reyes, 2016 IL 119271, ¶¶ 9-10) and by defining a de facto life sentence

as a sentence of more than 40 years’ imprisonment (People v. Buffer, 2019 IL 122327, ¶¶ 27, 40-

41). 10 In doing so, however, our supreme court repeatedly held that eighth amendment protections

under Miller are limited to juveniles and do not apply to adults over the age of 18. See People v.

Harris, 2018 IL 121932, ¶ 58.

¶ 52 Nonetheless, our supreme court showed a willingness to depart from this arbitrary age

constraint, leaving open the possibility for young adult offenders to raise such claims under the

Illinois proportionate penalties clause by relying on evolving neuroscientific research and societal

norms. See e.g., People v. Thompson, 2015 IL 118151, ¶¶ 43-44 (holding that a 19-year-old

defendant was “not necessarily foreclosed” from asserting an as-applied proportionate penalties

challenge to his natural life sentence); Harris, 2018 IL 121932, ¶ 48 (concluding that the 18-year-

old defendant’s as-applied, youth-based proportionate penalties challenge to his 76-year sentence

10 Although our supreme court also initially held that Miller applied to discretionary life sentences (People v. Holman, 2017 IL 120655, ¶ 40), it subsequently overruled that decision, concluding that it was at odds with the most recent United States Supreme Court precedent in Jones v. Mississippi, 593 U.S. 98, 104-105 (2021). See People v. Wilson, 2023 IL 127666, ¶ 42.

17 No. 1-23-1419

was “more appropriately raised” in a postconviction proceedings); see also People v. House, 2021

IL 125124, ¶¶ 29-31 (reaffirming that a young adult petitioner, 18 years or older, could make an

as-applied challenge to his sentence under the proportionate penalties clause based on a developed

evidentiary record as to how the “science concerning juvenile maturity and brain development

applies equally to young adults, or to [the] petitioner specifically.”). In doing so, our supreme court

acknowledged the possibility that a young adult offender, such as the instant petitioner, could

demonstrate through an adequate factual record that at the time he committed his crime, specific

characteristics made him the functional equivalent of a juvenile, such that his de facto life sentence,

imposed without the sentencing judge considering the safeguards established in Miller, violates

the Illinois proportionate penalties clause because it is “cruel, degrading, or so wholly

disproportionate to the offense that it shocks the moral sense of the community.” Clark, 2023 IL

127273, ¶ 51.

¶ 53 Despite this recognition, however, in the past two years, our supreme court has deliberately

taken steps to narrow the availability of Miller-based proportionate penalties claims raised in

successive postconviction petitions. See People v. Horshaw, 2024 IL App (1st) 182047-B, ¶ 51;

Dorsey, 2021 IL 123010, ¶ 74; Clark, 2023 IL 127273, ¶¶ 24-26; Moore, 2023 IL 126461, ¶¶ 40-

42.

¶ 54 First, in Dorsey, 2021 IL 123010, a 14-year-old juvenile offender sought leave to file a

successive postconviction petition challenging the constitutionality of his 90-year de facto life

sentence under the Illinois proportionate penalties clause. Id. The petitioner asserted that he could

not have raised this claim earlier because Miller was decided long after he was sentenced and after

he filed his original postconviction petition. Id. ¶ 23. Our supreme court disagreed and found that

“Miller’s announcement of a new substantive rule under the eighth amendment does not provide

18 No. 1-23-1419

cause for a [juvenile offender] to raise a claim under the proportionate penalties clause.” Id. ¶ 74.

Our supreme court reasoned that “Illinois courts have long recognized the differences between

persons of mature age and those who are minors for purposes of sentencing,” and that Miller’s

unavailability prior to 2012 at best deprived the petitioner of “some helpful support” for his state

constitutional claim. (Internal quotation marks omitted.) Id.

¶ 55 Subsequently, in Clark, 2023 IL 127273, ¶¶ 24-26, our supreme court considered the same

issue as applied to a 24-year-old young adult offender with intellectual disabilities. In finding that

the petitioner failed to satisfy the cause prong of the cause-and-prejudice test, the court found that

“the same reasoning applies” as in Dorsey, and that Illinois courts “were also aware that less than

mature age can extend into young adulthood—and they have insisted that sentences take into

account that reality of human development.” (Internal quotation marks omitted.). Id. ¶ 93. Our

supreme court further held that “Miller does not present new proportionate penalties clause

principles with respect to discretionary sentencing of young adult offenders” and that therefore

“the essential legal tools” to raise the proportionate penalties argument were available to the young

adult offender in that case at the time he filed his initial petition. (Internal quotation marks omitted.)

Id. ¶ 93.

¶ 56 In rejecting the petitioner’s claim, our supreme court in Clark further explained that its

prior decisions in Thompson and Harris opening the door for young adult offenders to raise Miller-

based proportionate penalties challenges to their sentences, “addressed the possibility of *** a

Miller-based challenge with respect to mandatory life sentences in initial postconviction

petitions.” (Emphases in original.) Id. ¶ 88 (citing Thompson, 2015 IL 118151, ¶ 44 and Harris,

2018 IL 121932, ¶ 48).

¶ 57 Shortly after Clark, in Moore, 2023 IL 126461, ¶¶ 12, 23, our supreme court reaffirmed

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that young adult offenders cannot rely on the unavailability of Miller to establish the requisite

cause for their failure to raise youth-based proportionate penalties challenges in their original

postconviction proceedings. In affirming the circuit court’s denial of two separate motions for

leave to file successive petitions filed by two 19-year-old petitioners, our supreme court held that

“[a]s Miller does not directly apply to young adults, it also does not provide cause for a young

adult offender to raise a claim under the proportionate penalties clause.” Id. ¶ 42. The court further

held that in that case, the evidence and arguments presented at the petitioners’ sentencing hearings

showed that the petitioners knew that “Illinois law recognized the special status of young adults,

especially those subject to adverse influences, for purposes of applying the principes of the

proportionate penalties clause.” Id. Therefore, because “Miller did not change the law applicable

to young adults, it [did] not provide cause for the proportionate penalties challenges” advanced by

the petitioners’ successive postconviction petitions. Id.

¶ 58 Under Dorsey, Clark and Moore, it is clear that a young adult offender, such as the

petitioner in the instant case, who attempts to challenge his discretionary life sentence under the

proportionate penalties clause, cannot rely on Miller and its progeny to establish the requisite cause

to proceed with his claim. See Dorsey, 2021 IL 123010, ¶ 74; Clark, 2023 IL 127273, ¶¶ 24-26;

Moore, 2023 IL 126461, ¶¶ 40-42.

¶ 59 In order to circumvent this obstacle, on appeal the petitioner asserts that he is not relying

on the unavailability of Miller as the sole cause for his failure to raise his proportionate penalties

claim earlier. Instead, he asserts that he is relying on new evidence, in the form of emerging

neuroscientific research regarding the brains of young adult offenders, which became available

only after the 2012 Miller decision. This evidence consists of numerous scientific articles, which

discuss how the maturation of brain structure, function, and connectivity continues throughout an

20 No. 1-23-1419

individual’s early twenties and how it impacts a young adult’s thought process and potential for

rehabilitation. 11 Notably none of these articles were in existence at the time of the petitioner’s

sentencing hearing (in 1997) or when he subsequently filed his initial postconviction petition (in

2000). The petitioner argues that without this scientific research he was without a factual basis

upon which to raise his youth-based proportionate penalties’ claim. Citing to People v. Blalock,

2022 IL 126682, he therefore asserts that he has sufficiently stated cause to proceed with this claim.

For the following reasons, we disagree.

¶ 60 At the outset, we note that the scientific articles upon which the petitioner relies are not

properly before this court because they were not attached to his successive postconviction petition.

11 See Center for Law Brain & Behavior at Massachusetts General Hospital, White Paper on the Science of Late Adolescence: A Guide for Judges, Attorneys and Policy Makers, https://clbb.mgh.harvard.edu/white-paper-on-the-science-of-late-adolescence/ (last accessed May 7, 2024) (“White Paper”) (citing Leah Somerville, Searching for Signatures of Brain Maturity: What are We Searching For? 92 Neuron 1164, 1164-67 (2016); Alexandra O. Cohen et al., When Is an Adolescent an Adult? Assessing Cognitive Control in Emotional and Non-emotional Contexts, 27 Psych. Sci. 549 (2016); March D. Rudolph et al., At Risk of Being Risky: The Relationship Between ‘Brain Age’ Under Emotional States and Risk Preference, 24 Developmental Cognitive. Neurosci. 93, 93-106 (2017); B. J. Casey et al., Development of the Emotional Brain, 29 Neurosci. Letters 693 (2019); Laurence Steinberg, Adolescent Brain Science and Juvenile Justice Policymaking, 23 Psych. Pub. Pol’y & L. 419 (2017); Teena Willoughby et al., Examining the Link Between Adolescent Brain Development and Risk-Taking From a Social-Developmental Perspective, 89 Brain & Cognition 70 (2014); Jennifer Silvers et al., vIPFC-vmPFC-amygdala Interactions Underlie Age-Related Differences in Cognitive Regulation of Emotion, 27 Cerebral Cortex 3502 (2017); B. J. Casey, Beyond Simple Models of Self-Control to Circuit- Based Accounts of Adolescent Behavior, 66 Ann. Rev. Psych. 295 (2015); B. J. Casey et al., Making the Sentencing Case: Psychological and Neuroscientific Evidence for Expanding the Age of Youthful Offenders, 5 Ann. Rev. Criminology 321 (2022); Laurence Steinberg et al., Around the World, Adolescence is a Time of Heightened Sensation Seeking and Immature Self-Regulation, 21 Developmental Sci. 10.1111 (2018); Surjeet Mastwal et al., Phasic Dopamine Neuron Activity Elicits Unique Mesofrontal Plasticity in Adolescence, 34 J. Neuroscience 9484 (2014); Vishnu Murty, Finnegan Calabro & Beatriz Luna, The Role of Experience in Adolescent Cognitive Development: Integration of Executive, Memory, and Mesolimbic Systems, 70 Neurosci. & Biobehavioral Rev. 46 (2016); Catherine Insel et al., Development of Corticostriatal Connectivity Constrains Goal-Directed Behavior During Adolescence, 8 Nature Comm. 1 (2017); Juliet Davidow, Catherine Insel & Leah Somerville, Adolescent Development of Value-Guided Goal Pursuit, 22 Trends Cognitive Sci. 725 (2018); Arielle Baskin-Sommers et al., Towards Targeted Interventions: Examining the Science Behind Interventions for Youth Who Offend, 5 Ann. Rev. Criminology 345 (2022); Off. Juv. Just. Delinq. Prot., Law Enforcement & Juvenile Crime: Arrests by Offense, Age, and Gender, U.S. Dept. Just. (Oct. 21, 2019), https://www.ojjdp.gov/ ojstatbb/crime/ucr.asp?table in=)). 21 No. 1-23-1419

See 725 ILCS 5/122-2 (West 2018) (“The [postconviction] petition shall have attached thereto

affidavits, records, or other evidence supporting its allegations or shall state why the same are not

attached.”) In alleging cause, the motion for leave to file and the attached successive

postconviction petition only referenced the unavailability of Miller, House, and new “brain

science” research about young adults.

¶ 61 Regardless, even if we accept the petitioner’s request to take judicial notice of and consider

these scientific articles, we nonetheless find that the petitioner has failed to make a prima facie

showing of cause for his failure to raise this claim in an earlier proceeding.

¶ 62 In that respect, we disagree with the petitioner’s argument that his case is analogous to

Blalock, 2022 IL 126682. Blalock involved an allegation of police coercion alleged in a successive

postconviction petition. Id. ¶ 39. In that case, the petitioner contended that he satisfied cause for

failing to argue that his confession had been coerced because he could not have discovered

evidence of a “pattern and practice of police brutality” before his initial postconviction petition.

Id. ¶ 40. The State, on the other hand, asserted that the petitioner was not precluded from raising

this claim earlier because he must have known of his own abuse at the hands of the police at the

time when it occurred. Id. In agreeing with the petitioner, our supreme court held that cause is

satisfied by “a showing that the factual or legal basis for a claim was not reasonably available to

[defense] counsel.” (Internal quotation marks omitted.) Id. In doing so, our supreme court

emphasized that “evidence of a pattern and practice of police misconduct is part of the factual basis

of a coerced confession claim ***.” Id. ¶ 45. Thus, corroborating evidence “external to the

defense,” is necessary to effectively raise a claim of police misconduct. (Internal quotation marks

omitted.) Id. ¶ 44. Furthermore, the court noted that the insidious nature of police abuse makes

gathering this type of evidence particularly difficult. Id. (quoting People v. Brandon, 2021 IL App

22 No. 1-23-1419

(1st) 172411, ¶ 57) (“This evidence pertains to the conduct of the State’s own agents, toward

unknown individuals, during the investigation of other, usually unrelated, cases. The agents in

question *** have every incentive to remain mum, if not deny everything.”). Accordingly, without

corroborating evidence, a petitioner is impeded from even raising his coerced confession claim.

Id.

¶ 63 In contrast, such concerns are absent in a sentencing challenge based on the petitioner’s

age. See People v. Searles, 2024 IL App (1st) 210043-U, ¶ 17. “The factual basis for such a

challenge is that fully developed adults are different from young adults who are still developing.”

Id. (citing Leon Miller, 202 Ill. 2d 328). This distinction is a fact that Illinois courts have long

recognized. See e.g., People v. Haines, 2021 IL App (4th) 190612, ¶ 47 (“decades before Harris,

Illinois case law held that the proportionate-penalties clause required the sentencing court to take

into account the defendant’s ‘youth’ and ‘mentality’ ”; noting that in People v. Maldonado, 240

Ill. App. 3d 470 485-86 (1992) the appellate court reduced the sentence of a 20-year-old offender

and that in People v. Center, 198 Ill. App. 3d 1025, 1034 (1990), it did the same for a 23-year-

old); see also People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 423 (1894) (“There

is in the law of nature, as well as in the law that governs society, a marked distinction between

persons of mature age and those who are minors” between “the ages of 16 and 21 years;” “the

habits and characters of the latter are presumably, to a large extent, as yet unformed and

unsettled.”). Accordingly, unlike in Blalock, the petitioner here did not need any “external”

corroborating evidence (i.e., the new neuroscientific research) before he could raise his

proportionate penalties’ claim. See Dorsey, 2021 IL 123010, ¶ 73. Instead, the petitioner had “the

essential legal tools” necessary to make that argument in an earlier proceeding. Moore, 2023 IL

126461, ¶ 42; Clark, 2023 IL 127273, ¶ 93; Dorsey, 2021 IL 123010, ¶ 73. Accordingly, since he

23 No. 1-23-1419

cannot establish the requisite cause, the petitioner is barred from raising this claim in his third

successive postconviction petition.

¶ 64 In coming to this conclusion, we are not indifferent to the petitioner’s predicament and

recognize that even though the neuroscientific research regarding brain development of young

adults is relatively new, he has no meaningful path to demonstrate his rehabilitative potential that

would permit his release from prison before his 70th birthday. 12 Nonetheless, “we are bound by

our supreme court’s decisions regarding age-based proportionate penalties challenges for young

adults.” Horshaw, 2024 IL App (1st) 182047-B, ¶ 62. Dorsey, Clark and Moore all instruct that

the claim at issue here “should be viewed as nothing more than an extension of proportionate

penalties claims that have existed all along.” Horshaw, 2024 IL App (1st) 182047-B, ¶ 62 (citing

Dorsey, 2021 IL 123010, ¶ 74, Clark, 2023 IL 127273, ¶¶ 92-93 and Moore, 2023 IL 12646, ¶¶

40-42). Indeed, Clark reinforces this interpretation by clarifying that Thompson and Harris opened

the door only wide enough to accommodate Miller-based proportionate penalties claims that

involve mandatory life sentences that were raised in initial postconviction petitions. Clark, 2023

IL 127273, ¶ 88 (citing Thompson, 2015 IL 118151, ¶ 44 and Harris, 2018 IL 121932, ¶ 48); see

also People v. Hilliard, 2023 IL 128186, ¶ 27 (repeating this narrow view and adding that the

Miller-based proportionate penalties challenge in House, 2021 IL 125124, ¶ 5 also involved both

a mandatory life sentence and an initial postconviction petition.)

¶ 65 As such, the petitioner here cannot establish cause for failing to challenge the

12 Because the petitioner was sentenced in 1997 “before the truth-in-sentencing statute was validly enacted” he is eligible for day-for-day good conduct credit and could therefore serve only 50 years of his 100-year sentence. (Emphasis in original.) Dorsey, 2021 IL 123010, ¶ 50. The Illinois Department of Corrections (IDOC) website, of which we may take judicial notice, currently lists the petitioner’s projected discharge date as April 12, 2045, and his projected parole date as April 11, 2042. See People v. Ware, 2014 IL App (1st) 120485, ¶ 29 (noting that this court may take judicial notice of information appearing on the IDOC website). 24 No. 1-23-1419

constitutionality of his sentence in his original postconviction petition because “a proportionate

penalties claim was always available to him in some form.” Horshaw, 2024 IL App (1st) 182047-

B, ¶ 62 (citing Moore, 2023 IL 12646, ¶¶ 40-42).

¶ 66 Since we find that the petitioner has failed to establish cause, we need not determine

whether he made the requisite showing of prejudice.

¶ 67 III. CONCLUSION

¶ 68 For these reasons, we affirm the circuit court’s denial of the petitioner’s request for leave

to file his third successive postconviction petition.

¶ 69 Affirmed.