People v. Ruiz

2020 IL App (1st) 163145, 165 N.E.3d 36, 444 Ill. Dec. 754

Opinion

2020 IL App (1st) 163145 No. 1-16-3145 Opinion filed May 26, 2020

First Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 98 CR 31306 ) ISRAEL RUIZ, ) Honorable ) Thomas Joseph Hennelly, Defendant-Appellant. ) Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court, with opinion. Justice Walker concurred in the judgment and opinion. Justice Pierce dissented, with opinion.

OPINION

¶1 Israel Ruiz and Omar Johnson, whose separate appeal we also decide today (see People v.

Johnson, 2020 IL App (1st) 171362), were convicted of violent murders they committed at the

ages of 18 and 19, respectively. Both availed themselves of their constitutional right to a direct

appeal and their statutory right to postconviction proceedings. Both come before us from the

denial of leave to file a successive postconviction petition. Both petitions claim that a long line

of cases expanding constitutional protections in juvenile sentencing proceedings—commonly

referred to by the flagship case, Miller v. Alabama, 567 U.S. 460 (2012)—apply to them as No. 1-16-3145

young adults. Their petitions, and their counsel on appeal, urge that we account for the emerging

consensus that the development of the brain continues well beyond 18 years, the arbitrarily

demarcated admittance to adulthood for individuals arrested and entering our criminal law

system. We hold, in both cases, that Ruiz and Johnson have made prima facie showings in their

pleadings that evolving understandings of the brain psychology of young adults require Miller

apply to them.

¶2 Here, we reverse the trial court’s denial of Ruiz’s request for leave to file his successive

petition and remand for further postconviction proceedings so he can develop his claim. We do

the same in Johnson, 2020 IL App (1st) 171362.

¶3 At the outset, we make two critical points. Neither decision should be read to minimize or

excuse the suffering wrought by the taking of another life. Indeed, Miller engages constitutional

protections to young people who commit the most heinous type of offenses. There, the

defendants committed similarly violent murders. One defendant participated in the attempted

robbery of a video store, during which the clerk was shot point blank with a sawed-off shotgun.

The other defendant robbed a neighbor of $300 and repeatedly hit the victim with a baseball bat

saying, “I am God, I’ve come to take your life,” before setting fire to the victim’s trailer with the

victim alive inside. (Internal quotation marks omitted.) Miller, 567 U.S. at 465-68.

¶4 Our decisions also should not be overread in terms of the relief we provide to Ruiz and

Johnson. Both petitions were dismissed at an early stage in the successive postconviction

process. We order the petitions proceed so they can attempt to show that Miller applies to them,

as they have sufficiently pled in their petitions. If, and only if, they succeed, the trial court will

consider a new sentencing hearing.

¶5 With those understandings, we proceed to our analysis.

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¶6 Background

¶7 People v. Ruiz, 2014 IL App (1st) 112993-U, ¶¶ 4-13, the appeal from the second-stage

dismissal of Ruiz’s initial postconviction petition, sets out the trial court proceedings in

substantial detail. We reiterate facts that give context to Ruiz’s claims of actual innocence and

ineffective assistance of counsel.

¶8 On November 7, 1998, Roy Billups was helping his friend, Brian Ellison, move into

Ellison’s new apartment. At about 8:30 p.m., as they assembled beds in a second-story room,

Billups looked out the window on 90th Street. He saw two Hispanic men walking, one of them

bald except for a ponytail “hanging in the back.” The two men stood on the corner; Billups kept

his attention there because the man with the ponytail had his hand by his waist “toward the belt

buckle at the front of his pants.” Billups identified this man as Ruiz and the man next to him as

co-defendant, Michael Mejia.

¶9 Billups watched as Ruiz and Mejia walked 30 to 40 feet west on 90th Street, coming to a

stop in front of a garage on the south side of the street. Billups saw Ruiz, who was facing north,

“pull[ ] out a gun and start[ ] shooting.” Ruiz shot “8 or 9” times. Ruiz and Mejia turned and ran

south down the alley. Later that night, Billups went to the police station and identified Ruiz and

Mejia as the men involved in the shooting. Ellison gave substantially similar testimony,

including identifying Ruiz as the shooter, both at the police station shortly after the offense and

in court.

¶ 10 Jose Ortiz lived nearby. While watching a movie at about 8:30 p.m., he “heard several

shots that sounded like they came from the rear of the house,” leading him to look out the

kitchen window. That window overlooked the alley behind his house. Ortiz saw a sports utility

vehicle (SUV) reversing north in the alley and heard a second series of shots. Then, he saw two

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people walking south down the alley and noticed “something similar to a gun, a shiny, chrome

gun that somebody was walking with on the side of their body.” The person carrying the gun

“had sort of a bald head.”

¶ 11 After watching the SUV drive away, Ortiz went to join a crowd gathering on 90th Street.

There, he saw a man (Nathaniel Walls) on the ground with a child in his arms. Ortiz found a

police officer and reported what he saw. Sometime later, he went to the police station and viewed

a lineup. He identified Ruiz as a person who “resembled the person that [Ortiz] saw in the alley.”

On cross-examination, Ortiz admitted to uncertainty regarding whether the person he saw was

carrying a gun, and that he “didn’t get a full picture of their face[s].” He identified Ruiz based on

his “shirt, bald head, and his stature.”

¶ 12 The State also presented witnesses from inside the SUV. See id. ¶¶ 6-7. These witnesses

testified that after hearing gunshots, they saw Ruiz and Mejia run through the alley to the waiting

SUV. Araceli Garcia testified that Mejia said G.D.s (member of the Gangster Disciples) shot at

them. Vanessa Rios testified, through the transcripts from her grand jury testimony, that Ruiz

threw a gun out the window after they drove off.

¶ 13 Officers on patrol saw the SUV move slowly in the alley, toward 91st Street, with its

lights off. A woman inside the SUV leaned out of the window and said, “them black G.D.’s over

there were just shooting at us.” The officers pulled over the SUV. As they walked up, someone

threw a gun out, and the SUV drove a bit further before a final stop. After hearing a radio

transmission describing the shooting suspects, officers took Ruiz to the scene where he was

identified. Later, at the police station, three witnesses, including Billups and Jose Ortiz,

identified Ruiz in a lineup as the shooter.

¶ 14 Ruiz also gave a statement to Assistant State’s Attorney Paul Quinn. Ruiz admitted to

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belonging to the Latin Counts street gang. Ruiz stated that his friend, Christopher Anderson,

“had been shot on Halloween Night in the face by rival gang members.” On November 7, 1998,

after driving around in the SUV for a while, he and Mejia went for a walk. As they came toward

Commercial Avenue, “the dividing line between the territory of the Latin Counts and Gangster

Disciples,” Ruiz saw three black teenagers across the street “dressed all in black.” Ruiz did not

see a gun, but they “started whistling and running around and *** one of them started going

down a gangway.” Mejia gave Ruiz “a 45 handgun.” Ruiz “raised it with his right hand and

pointed it at the teenagers across the street and fired several shots at them.” Then he ran.

¶ 15 Forensic technicians matched the gun officers had seen thrown from the SUV to the gun

that shot Nathaniel Walls. Although some of the fingerprints on the gun were suitable for

comparison, none matched Ruiz’s. The State presented no other physical evidence linking Ruiz

to the shooting.

¶ 16 A jury found Ruiz guilty of first degree murder of Walls and aggravated discharge of a

firearm as to Walls’s child.

¶ 17 At sentencing, two officers testified about offenses for which Ruiz had been arrested. The

State argued that Ruiz shot Walls as an “act of retaliation.” And that, despite his upbringing,

Ruiz “chose to take a path that would lead to bloodshed and violence.” The State argued that

Ruiz had not taken advantage of the juvenile system that tried to rehabilitate him. In response,

Ruiz’s counsel argued that he had a supportive family and goals to complete his education.

Counsel urged the court “not to put him away for the rest of his life and not let him die in

prison.”

¶ 18 The trial court mentioned Ruiz’s age and discussed the evidence and the potential for

rehabilitation. The court noted Ruiz’s “loyal and supportive family.” The court said Ruiz had

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“two personas, one for his family and the other when he was away from his family.” It

considered “all of his background” and whether he posed a threat to society. Ultimately, the trial

court sentenced Ruiz to 40 years for Walls’s murder and a concurrent 15 years for the aggravated

discharge of a firearm.

¶ 19 In 2010, after we ordered second stage postconviction proceedings, Ruiz filed the final

version of his first postconviction petition, raising 22 claims. The trial court dismissed the

petition at the second stage. Ruiz pressed three of those claims on appeal—that his direct appeal

counsel was ineffective (i) for failing to challenge the trial court’s denial of a second degree

murder instruction, (ii) for failing to challenge the use of an “outdated” pattern jury instruction,

and (iii) for failing to litigate a motion to suppress statements. Id. ¶¶ 17, 22, 26. We affirmed the

second-stage dismissal. Id. ¶ 28.

¶ 20 In 2016, Ruiz filed a motion for leave to file a successive postconviction petition. He

raised four claims, three relevant here: (i) his 40-year sentence constituted a de facto life

sentence in violation of the Illinois Constitution and the eighth amendment to the United States

Constitution, (ii) his trial counsel was ineffective for failing to investigate and call Christopher

Anderson as a witness at trial, and (iii) Ruiz was actually innocent, based on an affidavit from

Anderson explaining that Ruiz had knowledge of a shooting perpetrated by rival gang members

the a week before Walls’s murder.

¶ 21 In support of his ineffectiveness and actual innocence claims, Ruiz attached an affidavit

from Anderson. According to Anderson, on October 31, 1998, four members of the Gangster

Disciples shot him in the face. On November 2, Ruiz visited Anderson in the hospital. Anderson

told him that the “four black males” who had shot him made Gangster Disciple hand signs and

shouted “GD m***.” On the day of the Walls shooting, Anderson had warned Ruiz to “watch out

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for them GDs.” Anderson explained that he would not have testified at Ruiz’s trial because he

“didn’t want any more trouble from anyone including the GDs.”

¶ 22 Ruiz also attached an affidavit explaining that he told his trial counsel to investigate and

subpoena Anderson as a witness “three different times.” According to Ruiz, his counsel refused

because he would not “go into [Ruiz’s] bad neighborhood and risk getting shot just to summon

[witnesses].” Ruiz’s counsel allegedly told Ruiz that if he wanted witnesses at trial, Ruiz would

have to get them himself.

¶ 23 Ruiz supported his sentencing claim by citing both Illinois and United States Supreme

Court decisions about constitutional protections available to juveniles during their sentencing

proceedings. Ruiz’s petition referenced social science articles in arguing that brain development

does not conclude when a person reaches 18 years, so the case law applicable to juveniles should

also apply to him. And Ruiz argued that his sentence constituted a de facto life sentence imposed

by the trial court without considering his age.

¶ 24 In a one-sentence oral ruling, the trial court denied Ruiz leave to file his successive

petition, saying, “In the matter of Israel Ruiz, request to proceed in forma pauperis is denied. Off

call.”

¶ 25 Analysis

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

petitioner to raise a claim of a violation of constitutional rights in the original trial or sentencing

proceedings. People v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002). The Act contemplates the

filing of only one postconviction petition. Id.at 455-56. Claims not raised in the initial petition

are waived (id. at 456; see also 725 ILCS 5/122-3 (West 2018)), unless the defendant (i) shows

cause for and prejudice from failing to raise the claim in the earlier petition or (ii) makes a

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colorable claim of actual innocence. Pitsonbarger, 205 Ill. 2d at 459-60. We review the trial

court’s decision to deny leave to file a successive petition de novo, accepting all well-pled facts

and attached affidavits as true. People v. Edwards, 2012 IL App (1st) 091651, ¶ 25.

¶ 27 Applicability of Miller to Ruiz

¶ 28 Ruiz challenges his 40-year discretionary sentence as unconstitutional under both the

United States and Illinois constitutions because the trial court failed to consider his young age

(18 years old) when sentencing him. Ruiz must “demonstrate [ ] cause for his *** failure to bring

the claim in his *** initial post-conviction proceedings and [that] prejudice results from that

failure.” 725 ILCS 5/122-1(f) (West 2018). The Act defines “cause” as “an objective factor that

impeded [the petitioner’s] ability to raise a specific claim during his or her initial post-conviction

proceedings.” Id. “Prejudice” involves the “demonstrati[on] that the claim not raised during [the

petitioner’s] initial post-conviction proceedings so infected the trial that the resulting conviction

or sentence violated due process.” Id. The cause-and-prejudice test establishes a more onerous

standard than that at the first-stage pleading stage. People v. Smith, 2014 IL 115946, ¶ 35. Leave

to file a successive petition should be denied where (i) the petitioner’s claims “fail as a matter of

law” or (ii) the petition and accompanying documents are “insufficient to justify further

proceedings.” Id.

¶ 29 The State does not concede cause, but ignores it in its brief. See Ill. S. Ct. R. 341(h)(7)

(eff. May 25, 2018) (“[p]oints not argued are forfeited”). What’s more, our supreme court has

already said that “Miller’s new substantive rule constitutes ‘cause’ because it was not available

earlier to counsel.” People v. Davis, 2014 IL 115595, ¶ 42 (citing Pitsonbarger, 205 Ill. 2d at

460-61). Ruiz’s sentencing occurred years before the United States Supreme Court decided

Miller, and even longer before our supreme court suggested that young adults could attempt to

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show Miller’s application to them in postconviction proceedings. See People v. Harris, 2018 IL

121932, ¶ 48. Ruiz has shown cause for failing to raise this claim in the earlier proceeding.

¶ 30 Instead, the State argues that Ruiz cannot establish prejudice because (i) the

constitutional protections afforded to juveniles in sentencing proceedings should not extend to

young adults, (ii) even if those protections apply to young adults, they do not apply to Ruiz

because his de facto life sentence was not mandatory, and (iii) even if constitutional and juvenile

sentencing protections apply to young adults given discretionary life sentences, Ruiz has failed to

show eligibility for those protections or that the trial court failed to consider his youth at the

original sentencing hearing. We disagree with each of these contentions.

¶ 31 We first dispose of Ruiz’s eighth amendment argument. In a series of cases, the United

States Supreme Court found that the eighth amendment prohibits capital punishment and

mandatory life sentences for juvenile offenders. People v. Buffer, 2019 IL 122327, ¶ 16 (citing

Roper v. Simmons, 543 U.S. 551, 578-79 (2005) (prohibiting capital punishment for juveniles);

Graham v. Florida, 560 U.S. 48, 82 (2010) (prohibiting mandatory life sentences for juveniles

convicted of nonhomicide offenses); Miller, 567 U.S. at 489 (prohibiting mandatory life

sentences for juveniles convicted of murder)). Our supreme court has read the eighth amendment

protections afforded to juvenile sentencing as extending to discretionary life sentences. People v.

Holman, 2017 IL 120655, ¶ 40. For eighth amendment purposes, our court has “draw[n] a line at

40 years” to demarcate a life sentence for a juvenile offender. Buffer, 2019 IL 122327, ¶ 40.

¶ 32 Ruiz’s 40-year sentence qualifies him for the protections that Miller affords a juvenile.

But Ruiz committed the offense at age 18. Recently, and forcefully, our supreme court

reaffirmed under 18 as the age cutoff for juvenile sentencing protections in the eighth

amendment context. See Harris, 2018 IL 121932, ¶¶ 54-61. Ruiz cites no Illinois cases casting

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doubt on Harris, but rather relies heavily on secondary sources explaining the brain development

of young adults. Harris rejected that argument. Id. ¶¶ 59-60. We must follow Harris’s

interpretation of the eighth amendment.

¶ 33 While Harris foreclosed Ruiz’s eighth amendment argument, it pointedly left open the

applicability of the Illinois Constitution. See id. ¶ 48 (inviting defendant to raise his Illinois

constitutional challenge to his life sentence in collateral proceeding, either in a postconviction

petition or a petition for relief from judgment). Ruiz argues that he has adequately alleged

prejudice under the Illinois Constitution’s proportionate penalties clause to warrant the filing of

his successive petition. We agree.

¶ 34 We have held that the Illinois Constitution prohibits a mandatory life sentence for a

young adult offender who was 19 at the time of the offense. People v. House, 2019 IL App (1st)

110580-B, ¶¶ 63-65. We ordered a new sentencing hearing, during which “both defendant and

the State will have the opportunity to fully explore defendant’s argument and the evolving

science on juvenile brain development.” Id. ¶ 72. We decline the State’s invitation to depart from

House.

¶ 35 The State urges us to reject House because, in its view, the decision “contravened clear

directives set forth in People v. Harris, 2018 IL 121932.” We disagree.

¶ 36 Our supreme court turned down the defendant’s Illinois constitutional claim in Harris

because the claim had not been preserved. Harris, 2018 IL 121932, ¶ 40 (“an evidentiary hearing

was not held on [the defendant’s] constitutional claim, and the trial court did not make any

findings of fact on defendant’s specific circumstances”). House did no more than take up our

supreme court’s invitation in Harris on a fully developed record. See House, 2019 IL App (1st)

110580-B, ¶ 65.

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¶ 37 Recently, another division of this court distinguished House, but did not disagree with it.

People v. Handy, 2019 IL App (1st) 170213. Because the court decided Handy after the State

filed its brief, we granted the State’s motion to cite Handy as additional authority. The State

urges us to follow Handy, which distinguished House on two grounds: (i) the defendant in Handy

participated in the offense instead of merely acting as a lookout and (ii) the sentence in Handy

was discretionary, while in House, it was mandatory. Id. ¶¶ 40-41. We disagree with both

distinctions.

¶ 38 We see no principled basis on which to distinguish House based on the level of a

defendant’s participation in the offense. Remember, one of the most fundamental aspects of the

Supreme Court’s Miller line of cases insists that juvenile sentencing considerations apply even to

those who commit heinous crimes—extending constitutional protections to juveniles who

commit murder. Miller, 567 U.S. at 472 (“Roper and Graham emphasized that the distinctive

attributes of youth diminish the penological justifications for imposing the harshest sentences on

juvenile offenders, even when they commit terrible crimes.” (Emphasis added.)). When the Court

looked at the four pillars of penological justification—retribution, deterrence, incapacitation, and

rehabilitation—it focused on how each related to characteristics of the offender, not the offense.

Id. at 472-73. Retribution relates to the offender’s blameworthiness, by definition lower for

juveniles. Id. at 472. Deterrence has lower effectiveness due to their “immaturity, recklessness,

and impetuosity.” Id. Incapacitation is less salient because it requires a judgment of

incorrigibility, which is “inconsistent with youth.” (Internal quotation marks omitted.) Id. at 472-

73. And a life sentence eliminates rehabilitation altogether. Id. at 473.

¶ 39 But our ruling hinges on whether the trial court adequately considered the constitutionally

relevant factor of Ruiz’s youth and attendant characteristics, and not on whether Ruiz’s sentence

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is substantively constitutional (i.e. proportionate). Admittedly, the degree Ruiz participated in the

offense remains a consideration during his sentencing proceeding. E.g., People v. Contursi, 2019

IL App (1st) 162894, ¶ 24 (“The most important sentencing factor is the seriousness of the

offense, and the court need not give greater weight to rehabilitation or mitigating factors than to

the severity of the offense.”). To prevent young adult offenders from relying on the mitigating

circumstance of their youth simply because they more directly participated in the offense would

be error. See Miller, 567 U.S. at 472.

¶ 40 We also see no support for distinguishing House on the ground that Ruiz’s sentence was

discretionary. Our supreme court eliminated the distinction between mandatory and discretionary

life sentences when juveniles raise constitutional challenges. See Buffer, 2019 IL 122327, ¶ 27

(to succeed on Miller claim, juvenile must show, in part, that he or she “was subject to a life

sentence, mandatory or discretionary” (citing Holman, 2017 IL 120655, ¶ 40)). Because we

agree with House that juvenile sentencing provisions apply to Ruiz as a legal matter, the

distinction between mandatory and discretionary sentences evaporates.

¶ 41 Finally, the State argues that even if Buffer applies to certain young adults, the 40-year

floor it set cannot be the right number for an adult offender. On the surface, this argument has

some force: there are some mandatory minimum sentences for murder that can be as much as 45

years with enhancements. See 730 ILCS 5/5-4.5-20(a) (West 2018) (20-years mandatory

minimum for first degree murder); id. § 5-8-1(a)(1)(d)(iii) (25-year add-on for committing

murder with firearm). The State overreads Buffer on each contention.

¶ 42 We emphasize what Buffer did not do—namely, say that every sentence imposed on a

juvenile of longer than 40 years is per se unconstitutional. The only aspect of Buffer’s sentence

that was unconstitutional concerned the trial court failing to consider his youth at the time of

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sentencing. Buffer, 2019 IL 122327, ¶ 42. So the trial court undoubtedly could impose an

enhanced sentence on a young adult offender if it complied with the constitutional prerequisite of

considering the offender’s youth.

¶ 43 The dissent amplifies the State’s argument that 40 years would not be a de facto life

sentence for Ruiz, even if he were treated as a juvenile for sentencing purposes. But this ignores

the origin of the Illinois Supreme Court’s 40-year number. Instead of being based on “court

decisions, legal literature, or statistical data,” it owes its origin to specific provisions in the

Juvenile Court Act reflecting a legislative judgment that 40 years constitutes a constitutionally

acceptable sentence for juveniles. Id. ¶¶ 37-41. As we have emphasized throughout this opinion,

the Juvenile Court Act was not applied to Ruiz’s sentence because the trial court considered him

an adult under the law.

¶ 44 We acknowledge some dissonance between Ruiz’s request to be treated as a juvenile for

sentencing purposes and our conclusion that he is not subject to Buffer’s 40-year floor. But we

cannot ignore the simple fact of chronological age. There is a difference between a 15-year-old

subject to a 40-year sentence who would be released at age 55 and an 18-year-old subject to a

40-year sentence who would not be released until age 58. This may seem like a trivial difference,

but it offends statistical predictions about life expectancy for young people who receive long

prison sentences. See id. ¶¶ 65-67 (Burke, J., specially concurring) (finding that the maximum

sentence that should be imposed on juveniles is one that allows release at age 55).

¶ 45 When it comes to young adults subject to juvenile sentencing provisions, our supreme

court has not yet set a lower limit on the length of a sentence that violates Miller provisions. As it

stands now, because the defendant in Buffer was a juvenile and our supreme court crafted its rule

based on a statute applicable only to juveniles, Buffer does not foreclose our conclusion.

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¶ 46 At oral argument, discussion involved the decision in Holman and an appellate decision

applying Holman, People v. Croft, 2018 IL App (1st) 150043. In Holman, our supreme court

said, “A court revisiting a discretionary sentence of life without parole must look at the cold

record to determine if the trial court considered” a set of five factors. Holman, 2017 IL 120655,

¶¶ 46-47. Those factors include (i) defendant’s chronological age and any accompanying

evidence of “particular immaturity, impetuosity, and failure to appreciate risks and

consequences”; (ii) defendant’s family and home environment; (iii) defendant’s degree of

participation in the homicide and any evidence of familial or peer pressure; (iv) defendant’s

incompetence, specifically his or her inability to deal with police officers or lawyers; and (v)

defendant’s prospects for rehabilitation. Id. ¶ 46. In Croft, the court addressed the factors in a

case in which a juvenile defendant appealed from the second stage of successive postconviction

proceedings. The court affirmed because the trial court at the original sentencing had sufficiently

considered the Holman factors. Croft, 2018 IL App (1st) 150043, ¶¶ 24-32. The State,

accompanied by the dissent, urges us to follow the same procedure.

¶ 47 We decline due to a host of material distinctions between Holman and Croft and Ruiz

(and Johnson). First, and most significantly, defendants in Holman and Croft were 17, and, thus,

juveniles, at the time of their offenses. Holman, 2017 IL 120655, ¶ 1; Croft, 2018 IL App (1st)

150043, ¶ 4. This means Miller presumptively applied to them as a matter of law. Harris, 2018

IL 121932, ¶ 44 (“the defendant in Holman fell squarely under Miller because he was a juvenile

when his crime was committed”). Ruiz (and Johnson) must make a preliminary showing before

the court undertakes a Holman analysis—that is, establish that Miller applies to them in the first

place.

¶ 48 As we said at the outset, this greatly narrows the relief we can afford to Ruiz. We must

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remand to allow Ruiz to put forward evidence to support his claim that Miller applies to him.

The Holman factors undoubtedly lie ahead, but only if Ruiz can make that first showing.

¶ 49 Also, extremely different procedural postures existed in Holman and Croft. In Holman,

the juvenile defendant sought leave to file a successive postconviction petition in which he did

not raise a Miller claim. Holman, 2017 IL 120655, ¶ 27. Our supreme court addressed the merits

of his claim “in the interests of judicial economy” because the original record sufficiently

developed an as-applied claim. Id. ¶ 32. More importantly, immediately before announcing the

applicable considerations distilled into a five-factor test in Croft, Holman said, “For juvenile

defendants like the defendant in this case ***, any inquiry into the Miller factors is backwards-

looking.” (Emphasis added.) Id. ¶ 47. That the defendant was a juvenile provided a foundational

premise. The record had been sufficiently developed because no fact-finding needed to occur to

determine whether Miller applied to a juvenile defendant.

¶ 50 The procedural differences between Croft and Ruiz are even more stark. The defendant in

Croft had already been granted leave to file his successive postconviction petition, had been

appointed counsel, and had his petition dismissed at the second stage of postconviction

proceedings. Croft, 2018 IL App (1st) 150043, ¶ 12. In other words, the proceedings had arrived

at the stage at which defendant’s burden is higher and after which appointed counsel had an

opportunity to further develop Croft’s claims. See 725 ILCS 5/122-4 (West 2018). And, as we

have said at some length already, the defendant in Croft, as a juvenile, did not have to make the

preliminary showing under Harris that the Miller line of cases applied to him.

¶ 51 We have no quarrel with the procedures announced in Holman and applied in Croft;

indeed, if Ruiz (and Johnson) convince the trial court on remand that Miller applies to them as

young adults, the trial court will have to consider Holman and Croft before it can grant

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resentencing.

¶ 52 We find that considering Holman now puts the proverbial cart before the horse. As

Harris instructs, young adult defendants are not entitled to a presumption that Miller applies to

them (unlike the defendants in Holman and Croft). See Harris, 2018 IL 121932, ¶ 44. So when

young adults raise claims that the Miller line of cases applies to them, we read our supreme

court’s precedents to set out this procedure:

(i) under Harris, a young adult defendant must plead, and ultimately prove, that

his or her individual characteristics require the application of Miller;

(ii) if, and only if, the young adult makes this showing, then the trial court goes on

to consider whether the initial sentencing hearing complied with Miller, following our

supreme court’s guidance in Holman and this court’s analysis in Croft; and

(iii) if the initial sentencing hearing was Miller-compliant, then the trial court can

reject the defendant’s claim (as the courts did in Holman and Croft); or if the initial

sentencing hearing was not Miller-compliant, then the trial court should order

¶ 53 We hold that Ruiz has stated a claim that, as a matter of law, prejudice has been caused

by reason of Ruiz’s justified failure to raise a constitutional challenge to his sentence in his initial

postconviction petition. Contrary to the dissent’s assertions, this procedure does not “fail[ ] to

recognize that the ‘prejudice’ factor must be shown.” We simply disagree about the nature of the

prejudice. By failing to raise the claim in his initial postconviction petition, Ruiz was deprived of

an opportunity to make a Miller argument at all due to his status as an adult at the time of the

offense. In other words, even if he had raised a Miller claim in his initial petition, it would have

been rejected out of hand because of his age. By pleading Miller’s applicability to him as a

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young adult, Ruiz has attempted to cure that prejudice. We agree that he should be given that

chance in further postconviction proceedings.

¶ 54 As Harris instructs, young adult defendants are not entitled to make an as-applied

challenge to their sentences under Miller unless they first show that Miller applies to them. Id.

¶ 45 (“The record must be developed sufficiently to address defendant’s claim that Miller applies

to his particular circumstances.”). If our supreme court conceptualized prejudice in the same way

as the dissent, then much of the analysis in Harris makes no sense—the court would have just

assumed Miller applied to the defendant and evaluated his initial sentencing hearing. Of course,

the court did not do that. Indeed, the dissent’s rationale, by sidelining Harris, provides Johnson

with a merits ruling on his Miller claim to which he may not be entitled. The trial court should

determine the applicability of Miller, as a factual matter, in the first instance.

¶ 55 Our analysis, however, is not finished—the petition and accompanying documents also

must be enough to justify further proceedings. Smith, 2014 IL 115946, ¶ 35. Importantly, while

Harris left open the possibility of a proportionate penalties clause claim for a young adult, the

Illinois Supreme Court instructed that a defendant must show “how the evolving science on

juvenile maturity and brain development that helped form the basis for the Miller decision

applies to defendant’s specific facts and circumstances.” Harris, 2018 IL 121932, ¶ 46. We are at

the pleading stage, so Ruiz is not required to prove anything. He needs only to plead facts

justifying further proceedings.

¶ 56 Ruiz’s petition, in detailed, well-cited legal argument, sets out why the protections in

Miller, and in the Illinois cases applying it, should benefit young adults. Ruiz cited “recent

research and articles” showing that the brain does not fully develop until the mid-20s, claiming

that “young adults as Ruiz was at 18 years old are more like adolescents than fully mature

17 No. 1-16-3145

adults.” Ruiz claimed that he too was “largely unsettled in [his] characters and habits and this

must be taken into consideration” during sentencing. He claimed that his sentencing hearing

“clearly did not adequately focus on Ruiz[’s] age of 18 and his rehabilitative potential.” And

Ruiz alleged, “[h]ad the court held a hearing specifically tailored to address each of these

[Miller] factors, the court may well have determined a lesser sentence was appropriate.” These

facts suffice to make out a prima facie case that Miller should apply to Ruiz.

¶ 57 Ruiz submitted a motion to cite People v. Carrasquillo, 2020 IL App (1st) 180534. We

granted the motion, but find Carrasquillo too different to be of any help. When analyzing the

prejudice prong of the cause and prejudice test, the court emphasized three factors that set

Carasquillo apart: (i) defendant’s age had been misstated in the review of his sentence on direct

appeal; (ii) defendant’s sentence was clouded by the specter of corruption where his “sentence on

one of the very harshest that Judge Wilson delivered, and Judge Wilson did so during a year

when he had accepted a bribe, during a trial with a conspicuous police presence and to an 18-

year old with no prior criminal record”; and (iii) defendant had been eligible for parole and had

his requests denied. Id., ¶¶ 110-111. The analysis in Carrasquillo is unique to that case when it

comes to a Miller claim given all the individualized facts animating its analysis. We find nothing

disagreeable in Carrasquillo, it simply does not aid our consideration of Ruiz’s appeal.

¶ 58 As we recently reaffirmed, “ ‘Illinois has been a national leader in the field of juvenile

justice.’ ” In re Mathias H., 2019 IL App (1st) 182250, ¶ 29 (quoting In re Shermaine S., 2015

IL App (1st) 142421, ¶ 32). Other states have extended the considerations in Miller to young

adults 18 and over. In the State of Washington, for example, the supreme court referred to

“studies that established a clear connection between youth and decreased moral culpability for

criminal conduct.” State v. O’Dell, 358 P.3d 359, 366 (Wash. 2015). The court held that “a trial

18 No. 1-16-3145

court must be allowed to consider youth as a mitigating factor when imposing a sentence on an

offender like [defendant], who committed his offense just a few days after he turned 18.” Id. In

this way, the law must often play catch-up to other fields of empirical study. For example, in

Robinson v. California, 370 U.S. 660 (1962), the United States Supreme Court relied on shifting

understanding of the nature of addiction—as an illness, not a crime—to find the criminalization

of addict status unconstitutional. As Justice Douglas observed in his concurrence, centuries of

common thought about the nature of addiction had turned out to be wrong. Id. at 668-78

(Douglas, J., concurring).

¶ 59 At this stage, we must accept Ruiz’s allegations as true. Edwards, 2012 IL App (1st)

091651, ¶ 25. Ruiz’s claim is not barred by our conception of what the law has been; Ruiz

should have been allowed to proceed based on his well-pled assertions. See Harris, 2018 IL

121932, ¶¶ 46-48. His claim has yet to be decided. That determination is not for this court, but

the trial court. For now, the trial court erred when it denied leave to file his claim.

¶ 60 Ineffective Assistance of Counsel

¶ 61 Ruiz next claims that the trial court erred in denying leave to file his claim that trial

counsel was ineffective for failing to investigate and call Christopher Anderson as a witness at

trial. The State responds that Ruiz has failed to establish cause for failing to bring this claim in

Ruiz’s initial postconviction petition because nothing in the record indicates that Anderson

would not have come forward then. We agree that Ruiz has not established cause for failing to

bring this claim earlier, although we reject the State’s assertion that Anderson might have come

forward in 2006 because that would require us to second-guess the facts in Anderson’s affidavit.

See Edwards, 2012 IL App (1st) 091651, ¶ 25 (we must accept all facts alleged in affidavit as

true). Instead, we find Ruiz failed to establish cause because Anderson’s affidavit would not

19 No. 1-16-3145

have been necessary for an ineffectiveness claim in Ruiz’s first petition.

¶ 62 We apply the same definition of cause as in Ruiz’s sentencing claim (supra ¶ 28), and we

find no objective factor impeding Ruiz’s ability to raise his counsel’s ineffectiveness in his initial

postconviction proceedings. As Ruiz correctly argues, the “[f]ailure to present available

witnesses to corroborate a defense has been found to be ineffective assistance.” People v. Makiel,

358 Ill. App. 3d 102, 107-08 (2005). Ordinarily, when a petitioner raises a claim of

ineffectiveness based on trial counsel’s failure to investigate or call a witness, an affidavit from

that witness is required. E.g., People v. Johnson, 183 Ill. 2d 176, 192 (1998). But this rule has

never been a bright-line rule. People v. Dupree, 2018 IL 122307, ¶ 34. Instead, the court “has

always held that dismissal [of a postconviction petition] is proper when the record or other

evidence *** does not support the petitioner’s claim.” Id. This follows the Act, which requires a

petition to be supported by “ ‘affidavits, records, or other evidence.’ ” Id. ¶ 32 (citing 725 ILCS

5/122-2 (West 2014)). While an affidavit from the nontestifying witness often may be necessary

to claim ineffective assistance for failing to call that witness, the affidavit “will be required

[only] if it is essential *** to support a claim of ineffective assistance.” Id. ¶ 34.

¶ 63 Anderson’s affidavit was unnecessary. Ruiz’s affidavit, attached to his successive

petition, avers that he told trial counsel about Anderson and, before trial, gave counsel

Anderson’s home address. Ruiz also claimed that counsel’s only reason for failing to investigate

involved counsel’s desire to avoid “[Ruiz’s] bad neighborhood.” Then, as we have already

related, Ruiz’s statement to Assistance State’s Attorney Quinn provided the essential content of

Anderson’s proposed testimony—Anderson had been shot by Gangster Disciples a week before,

and Ruiz knew about it at the time of the Walls shooting. So the record and Ruiz’s own affidavit

supports his claim of ineffectiveness.

20 No. 1-16-3145

¶ 64 The trial record directly supports the testimony that Ruiz believed could be provided by

Anderson. Also, Ruiz’s affidavit shows that he asked counsel to investigate Anderson. So

nothing prevented Ruiz from alleging counsel’s ineffectiveness in his first petition. See id. ¶¶ 35-

42 (distinguishing People v. Thompkins, 161 Ill. 2d 148 (1994), People v. Guest, 166 Ill. 2d 381

(1995), Johnson, 183 Ill. 2d 176, and People v. Enis, 194 Ill. 2d 361 (2000)). Ruiz has failed to

show cause for failing to raise this claim in his initial postconviction petition. The trial court

properly denied him leave to file this claim in a successive petition.

¶ 65 Actual Innocence

¶ 66 To prevail on a claim of actual innocence, a successive postconviction petitioner “must

present new, material, noncumulative evidence that is so conclusive it would probably change

the result on retrial.” People v. Coleman, 2013 IL 113307, ¶ 96. New evidence means evidence

“discovered after trial [that] could not have been discovered earlier through the exercise of due

diligence.” Id. Material evidence means evidence “relevant and probative of the petitioner’s

innocence.” Id. And conclusive evidence encompasses evidence considered, along with the trial

evidence, that “would probably lead to a different result.” Id. A trial court can only deny leave to

file a successive postconviction petition raising a claim of actual innocence “where it is clear ***

that, as a matter of law, the petitioner cannot set forth a colorable claim of actual innocence.”

People v. Edwards, 2012 IL 111711, ¶ 24. A petitioner need only set out a prima facie case at the

leave-to-file stage. People v. Bailey, 2017 IL 121450, ¶ 24.

¶ 67 Ruiz argues that the evidence, in the form of Anderson’s testimony, constitutes newly

discovered evidence because Anderson “would not come forward” at trial. Ruiz admits that he

“knew about Anderson’s account at the time of trial,” which the State argues defeats a contention

of newly discovered evidence. According to the State, evidence cannot be newly discovered if

21 No. 1-16-3145

Ruiz knew about the relevant facts, even if the source of those facts recently agreed to come

forward. We agree with the State. “[E]vidence is not newly discovered when it presents facts

already known to a defendant at or prior to trial, though the source of those facts may have been

unknown, unavailable, or uncooperative.” (Emphasis added.) People v. Jones, 399 Ill. App. 3d

341, 364 (2010) (collecting cases). Under this standard, the evidence in Anderson’s affidavit

cannot be described as “newly discovered.”

¶ 68 Anderson’s affidavit says, “On October 31st 1998 I was shot in the face by (4) four rival

gang members.” In his statement to ASA Quinn, Ruiz explained that “Chris Anderson had been

shot on Halloween Night in the face by rival gang members pertaining to the Gangster

Disciples.” Anderson’s affidavit says, “I told Ruiz the GDs were all in black.” Ruiz’s statement

to ASA Quinn goes on, “[Ruiz] said he could see across the street and he could see three black

teenagers. He told me they were dressed all in black. And he told me he could immediately tell

they were members of the Gangster Disciples.” After Ruiz saw these men, according to his

statement, he shot at them and ran away. Ruiz knew about the information in Anderson’s

affidavit—that Gangster Disciples shot Anderson and that they dressed in black—at the time of

trial, and the jury heard it through his statement to ASA Quinn.

¶ 69 We find People v. Manrique, 351 Ill. App. 3d 277 (2004), on which Ruiz relies,

distinguishable. There, Officers pulled over a motor home driven by Andres Montoya for

speeding. Defendant was a passenger. Id. at 278. During a consent search of the motor home,

officers found bricks of cocaine. Id. at 278-79. In a successive postconviction petition, the

defendant raised a claim of actual innocence and attached an affidavit from Montoya saying he

was willing to testify that the defendant did not know about the cocaine. Id. at 279. In

proceedings on the defendant’s initial postconviction petition, it came out that trial counsel had

22 No. 1-16-3145

attempted to call Montoya at the original trial, but Montoya’s attorney had asserted “his fifth

amendment right against self-incrimination.” Id.

¶ 70 The appellate court found Montoya’s affidavit to be newly discovered evidence because,

given his intent to assert his constitutional right against self-incrimination at trial, “Montoya’s

testimony was unavailable to the defendant.” Id. at 280-81. Montoya, as the driver of the motor

home, could easily have been implicated had he testified that Manrique knew nothing about the

illicit drugs. He was not merely unwilling to testify (see, e.g., Jones, 399 Ill. App. 3d at 354), he

had a constitutional right not to testify. See also People v. Molstad, 101 Ill. 2d 128, 135 (1984)

(“no amount of diligence could have forced the codefendants to violate their fifth amendment

right to avoid self-incrimination”). We decline to equate a witness asserting “I do not want to

testify” with a witness asserting “I have a right not to testify.” See Edwards, 2012 IL 111711,

¶¶ 35-38 (drawing distinction between witnesses who refused to testify and codefendant who had

a constitutional right not to testify).

¶ 71 Because Ruiz knew the information in Anderson’s affidavit at the time of trial, and

because the jury was exposed to that information through Ruiz’s statement, the evidence is not

“newly discovered,” despite Anderson’s former reluctance to testify. Ruiz’s claim of actual

innocence fails as a matter of law. The trial court properly denied leave to file this claim.

¶ 72 Affirmed in part and reversed in part.

¶ 73 Cause remanded.

¶ 74 JUSTICE PIERCE, dissenting:

¶ 75 I agree with the majority’s finding that Ruiz’s eight amendment claim lacks merit.

However, I write to express my disagreement with the majority’s finding that Ruiz’s case should

23 No. 1-16-3145

be remanded to the circuit court to allow him an opportunity to prove his Miller claims and, if

proven, to allow the trial court the opportunity to judge the credibility of those claims.

¶ 76 To be clear, in his appeal Ruiz states that he “seeks a new sentencing hearing” based on

Miller factors that do not apply to adult offenders. He wants to receive the same protections

afforded juveniles even though he is an adult. However, if Ruiz was a 15-year-old at the time of

this offense, he would not be eligible for a resentencing hearing based on the Miller principles

because his 40-year sentence was not a de facto life sentence. Miller-related jurisprudence

concerns the imposition of a mandatory or discretionary natural or de facto life sentence imposed

on a juvenile. People v. Buffer, 2019 IL 122327, ¶ 27. Our supreme court has determined that

where a juvenile defendant’s sentence falls within this category, he must then show that the

sentencing court failed to consider his youth and attendant characteristics when imposing the

sentence in order to obtain a new sentencing hearing. Id. And our supreme court has declared

that “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a

de facto life sentence in violation of the eighth amendment.” (Emphasis added.) Id. ¶ 41. On its

face, even if Ruiz was a juvenile at the time of this murder, his request for a new sentencing

hearing would fail because he did not receive a de facto life sentence of more than 40 years.

¶ 77 But Ruiz was an 18-year-old defendant sentenced to a 40-year term of imprisonment. He

was not a juvenile at the time of the offense, and he did not receive a de facto sentence of life

imprisonment. Because there is no authority to extend to this adult defendant protections that

would not be available to any juvenile defendant that did not receive a de facto life sentence, his

Miller claim should also be dismissed and the judgment should be affirmed.

¶ 78 I further disagree with the majority’s approach in keeping Ruiz’s Miller claims on life

support. In my opinion, the Miller principles do not apply to this adult, 18-year-old defendant

24 No. 1-16-3145

who did not receive a de facto life sentence. However, even assuming that Miller applies, Ruiz

should not be given leave to file a successive postconviction petition because Ruiz simply cannot

establish the necessary prejudice where the record before us shows that his sentencing hearing

complied with Miller. Consistent with the directives of Holman, 2017 IL 120665, and applying

the analysis we used in Croft, 2018 IL App (1st) 150043, I would review the sentencing record

that we have and find that there was no constitutional violation in the imposition of Ruiz’s

sentence.

¶ 79 The majority finds that Harris, 2018 IL 121932, opens the Illinois Constitution for a

Miller challenge by way of collateral attack. I do not disagree. However, Harris is inapposite. In

Harris, the 18-year-old defendant argued that his 76-year sentence shocked the moral sense of

the community, given the facts of his case, his youth, and other mitigating circumstances. Our

supreme court held that the record before the court was insufficient to consider the defendant’s

contention that Miller applied in the context of his proportionate penalties claim because a

Holman analysis could not be made by the court where the trial court did not hold an evidentiary

hearing and the trial court made no findings of fact on Harris’ specific circumstances to support

his Miller claim. The Harris court declined to consider the Miller issue but noted that the

defendant was not foreclosed from raising the claim and that it “could *** potentially be raised”

in a postconviction petition. (Emphasis added). Id. ¶ 48.

¶ 80 Ruiz claims, and the majority agrees, that given the procedural posture of his case, Harris

affords him the opportunity to establish his as-applied Miller challenge in the trial court with the

assistance of postconviction counsel and therefore he should be given leave to file his successive

postconviction petition. However, the Harris court’s statement that a defendant could potentially

raise a Miller claim in a postconviction petition was based on the fact that the record on appeal

25 No. 1-16-3145

was insufficient to consider the Harris’s claim where there was no record of any hearing or

finding of facts in the trial court to support his Miller claim.

¶ 81 In contrast, Ruiz had an extensive and detailed sentencing hearing where the trial court

considered the nature of the offense, defendant’s social and criminal background, and

importantly, his young age. As we stated in Croft, “a key feature of the juvenile’s sentencing

hearing is that the defendant had the ‘opportunity to present evidence to show that his criminal

conduct was the product of immaturity and not incorrigibility.’ ” (Emphasis added). Croft, 2018

IL App (1st) 150043, ¶ 23 (quoting Holman, 2017 IL 120655, ¶ 49). Croft noted that the Holman

factors are “a nonexhaustive list” and that “nothing in Miller or Holman suggests that we are free

to substitute our judgment for that of the sentencing court” because the issue is not the particular

sentence the trial court imposed but whether defendant had the opportunity to present evidence

regarding his youth and that the court considered his youth and its attendant characteristics in

reaching its sentencing decision. Id. ¶¶ 32-33.

¶ 82 Accepting Ruiz’s contention, which I do not agree with, that Miller applies to an 18-year-

old (see Edwards, 2012 IL App (1st) 091651, ¶ 25) (at this stage we must accept Ruiz’s

allegations as true)), the majority simply fails to recognize that Ruiz had a Miller compliant

sentencing hearing. At the sentencing hearing for this 18-year-old, the trial court considered the

same factors that the Holman court found to be constitutionally consistent with Miller.

Consequently, in my view, because we have a sufficient record before us, the analysis employed

in Croft is the analysis that the majority should apply and find that defendant was correctly

sentenced.

¶ 83 Similar to Croft, and assuming that the Miller factors apply to young adults like Ruiz, we

have the benefit of the cold, well-developed record of Ruiz’s sentencing hearing that allows us to

26 No. 1-16-3145

determine whether that hearing met the Miller requirements. Because we have a more than an

adequate record, we must review Ruiz’s claim in accordance with the guidance provided under

Holman and affirm the denial of the petition for leave to file a successive postconviction petition.

Ruiz clearly had the opportunity to present his youthful mitigation argument to the trial court

during his sentencing hearing. (“[W]e have examined the cold record of the circuit court’s

[sentencing] hearing ***, which includes the common-law record and report of proceedings, and

find that the circuit court considered evidence of the defendant’s youth and its attendant

characteristics at the time of sentencing and that the defendant had” the opportunity required by

Holman. Croft, 2018 IL App (1st) 150043, ¶ 24.) As in Croft, the trial court in this case had

before it the trial testimony, the evidence, Ruiz’s PSI, and the sentencing arguments of the

parties before it sentenced Ruiz.

¶ 84 The cold record of Ruiz’s sentencing hearing emphatically demonstrates that the court

did consider defendant’s age and its attendant characteristics as mitigating factors in crafting the

appropriate sentence for the first degree murder of Nathaniel Walls and the aggravated discharge

of a firearm at Malik Walls. The record reflects that evidence was presented at the sentencing

hearing concerning most of the factors to be considered as set out in Holman. First, the court

considered the fact that Ruiz was a little over 18 years old at the time of the murder. Ruiz’s

young age was emphasized by defense counsel and noted in the PSI. The court was also fully

aware of Ruiz’s background. As to Ruiz’s immaturity, there was no evidence that Ruiz was in

any way immature or developmentally delayed. He had an eighth-grade education, he had a

“great” relationship with teachers, he could hold down a job, and he had goals of getting his

GED. The court was also aware that Ruiz had no mental health issues that would explain his

behavior. Rather, the facts of the case showed that Ruiz committed the murder because he was an

27 No. 1-16-3145

active gang member. Ruiz made the choice to be in a gang and he also made the conscious

decision to arm himself with a gun and shoot at Nathaniel Walls and his three-year-old son Malik

Walls, killing Nathaniel. Ruiz’s actions were not the result of peer pressure. Instead, Ruiz was

the lead and primary actor in this murder.

¶ 85 The trial court was also aware of the information in the PSI report concerning Ruiz’s

home life, his relationship with his family members, and any mental or physical characteristics

that might have made him less culpable for his crime. The issue of coercion or peer pressure was

also considered by the sentencing court when it noted that it had considered the facts of the case,

which showed that Ruiz was the shooter acting independently and not as a result of peer

pressure. The court noted the fact that Ruiz “always had the benefit of a very loyal and

supportive family.” The sentencing court noted that Ruiz has “two personas,” one for his family

and the other when he is away from his family. Finally, the court heard evidence and argument

concerning Ruiz’s prospects for rehabilitation, understood his “character,” and found him to be

fully responsible for his adult criminal activity. After consideration of all the relevant sentencing

factors, including factors unique to Ruiz, and after giving him the opportunity for allocution, the

trial court determined and imposed an appropriate sentence. Notably, his now-complained-of

sentence was affirmed on direct appeal.

¶ 86 Unlike constitutionally defective juvenile sentencing hearings where the characteristics of

youth were not considered, the trial court, after finding that Ruiz was the sole cause of the

murder of Nathanial Walls and the shooting of three-year-old Malik Walls, imposed an aggregate

40-year sentence. There is simply no basis to allow Ruiz, an adult, leave to file a successive

postconviction petition to argue Miller applies to him so he can get a second bite at the

sentencing apple where he did not receive a de facto life sentence and where his sentencing

28 No. 1-16-3145

hearing considered all the relevant Miller factors even though he was he was an adult.

¶ 87 The majority acknowledges that “as Harris instructs, young adult defendants are not

entitled to a presumption that Miller applies to them (as were the defendants in Holman and

Croft). See Harris, 2018 IL 121932, ¶ 44.” The majority then states that Harris requires that:

“(i) *** a young adult defendant must plead, and ultimately prove, that his or her

individual characteristics require the application of Miller;

(ii) if, and only if, the young adult makes this showing, then the trial court goes on

to consider whether the initial sentencing hearing complied with Miller, following our

supreme court’s guidance in Holman and this court’s analysis in Croft; and

(iii) if the initial sentencing hearing was Miller-compliant, then the trial court can

reject the defendant’s claim (as the courts did in Holman and Croft); or if the initial

sentencing hearing was not Miller-compliant, then the trial court should order

resentencing.” Supra ¶ 52.

¶ 88 The majority’s approach under Harris is fundamentally in error because it fails to

recognize that the “prejudice” factor that must be established in order to be granted leave to file a

successive postconviction petition cannot be established in this case. Ruiz must establish cause

and prejudice before being granted leave to file a successive postconviction petition. “Prejudice”

is defined as an error so infectious to the proceedings that the resulting conviction violates due

process. Pitsonbarger, 205 Ill. 2d at 464; 725 ILCS 5/122-1(f) (West 2018). The majority errs in

casually stating the Ruiz was prejudiced because he had cause for not raising his Miller argument

in his postconviction petition. This is a misstatement of the application of the prejudice

requirement. As previously stated, Ruiz has not established the requisite prejudice sufficient for

further proceedings. Because a reviewing court can determine from the cold record that no

29 No. 1-16-3145

constitutional error occurred (Holman), as we can in this case, then it follows that Ruiz cannot

establish the necessary prejudice to be granted leave to file his successive postconviction

petition.

¶ 89 The majority also errs in remanding to allow the filing of a successive postconviction

petition. Assuming Miller applies here, even if the record in this case demonstrated that a

constitutional error occurred due to the sentencing court’s failure to consider this adult

defendant’s youthful characteristics, the appropriate remedy would be to remand for a new

sentencing hearing rather than allowing defendant leave to file a successive postconviction

¶ 90 In Buffer, 2019 IL 122327, ¶ 7, the juvenile was sentenced to a de facto life sentence of

50 years and sought Miller protection in his postconviction petition that was summarily

dismissed. On review, the supreme court determined that the cold record was sufficient to review

the defendant’s Miller claim, found that no additional factual development was required, and

concluded that the defendant’s sentence was a de facto life sentence that was imposed without

the trial court considering the defendant’s youth and its attendant characteristics. Id. ¶ 42. The

court did not allow the filing of the postconviction petition and, instead, remanded for

resentencing, stating:

“[T]he record before us does not require factual development. All of the facts and

circumstances to decide defendant’s claim are already in the record. [Citation.] While the

circuit court stated that it ‘considered all of the relevant statutory requirements,’ the

record does not indicate that the court considered defendant’s youth and its attendant

characteristics. [Citation.] Accordingly, we earlier held that defendant’s 50-year prison

sentence, imposed for a crime he committed while a juvenile, violated the eighth

30 No. 1-16-3145

amendment. This holding applies retroactively and is cognizable in defendant’s

postconviction proceeding. [Citation.]

Based on the particular issue raised in this appeal and in the interests of judicial

economy, we agree with the appellate court that the proper remedy is to vacate

defendant’s sentence and to remand for a new sentencing hearing.” Id. ¶¶ 46-47.

¶ 91 In my view, the record on appeal in this case is unquestionably sufficient to decide

whether Ruiz’s sentencing hearing complied with Miller, even though Miller does not apply

because Ruiz was 18 at the time of the offense and he did not receive a de facto life sentence.

The record establishes without question that the trial court considered his age and attendant

characteristics and fashioned a sentence that was appropriate for the senseless, yet intentional,

crimes he committed.

¶ 92 For these reasons, I respectfully dissent.

31 No. 1-16-3145

No. 1-16-3145

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 98-CR- 31306; the Hon. Thomas Joseph Hennelly, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Arianne Stein, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan for J. Spellberg, Clare Wesolik Connoly, and Hareena Meghani- Appellee: Wakely, Assistant State’s Attorneys, of counsel), for the People.