NOTICE 2020 IL App (4th) 180305-U This order was filed under Supreme FILED Court Rule 23 and may not be cited NO. 4-18-0305 July 20, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Clark County LUTHER J. SANDERS, ) No. 94CF5 Defendant-Appellant. ) ) Honorable ) Tracy W. Resch, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Presiding Justice Steigmann and Justice Cavanagh concurred in the judgment.
ORDER ¶1 Held: We affirm the circuit court’s denial of defendant’s motion for leave to file his successive postconviction petition.
¶2 In March 2018, defendant, Luther J. Sanders, filed pro se a motion for leave to
file his third postconviction petition. In April 2018, the circuit court entered a written order
denying defendant leave to file his successive postconviction petition.
¶3 Defendant appeals, contending the circuit court erred by denying him leave to file
a claim his de facto life sentence is unconstitutional because the sentence violated the eighth
amendment of the United States Constitution (U.S. Const., amend. VIII) and the proportionate
penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11) as applied to
him. We affirm the circuit court’s judgment. ¶4 I. BACKGROUND
¶5 On March 25, 1994, defendant entered partially negotiated pleas of guilty to
charges of first degree murder (720 ILCS 5/9-1(a)(1) (West 1992)) of Jerry Darling and
conspiracy to commit first degree murder of Wesley Hall (720 ILCS 5/8-2(a) (West 1992)).
Other charges of murder were nol-prossed, and the prosecution agreed not to seek a capital or a
natural life sentence in exchange for defendant’s agreement not to seek appellate review of the
circuit court’s ruling or the applicability of the extended-term sentencing provisions. The
prosecution reserved the right to seek both extended and consecutive terms of imprisonment with
a maximum cap of 114 years, but the sentence to be imposed was left open pending presentence
investigation.
¶6 The parties stipulated to a factual basis for the guilty plea based partially on a
confession by defendant given after his arrest. The court found the factual basis sufficient. The
court inquired as to the free and voluntary nature of the plea, where defendant stated he
graduated from high school but had limited ability to read and write. Defense counsel confirmed
defendant was able to understand the proceedings and was competent to plead guilty, although
he was functionally illiterate. Counsel disclosed to the court defendant’s school records and
history of seizures. The court accepted defendant’s guilty plea and ordered the preparation of a
presentence investigation report (PSI).
¶7 On May 24, 1994, defendant filed a motion for neurological testing. The motion
referenced seizures defendant had suffered as a child and questioned “ ‘whether some of
[defendant’s] behavior problems might not be temporal lobe related.’ ” A medical note dated five
years earlier characterized defendant’s electroencephalogram (EEG) as “normal.” The motion
requested the circuit court order EEG testing to determine “whether or not any type of ‘temporal
-2- lobe abnormalities’ might relate in any manner to the judgment and behavior of [defendant]” in
relation to his conviction. At a hearing held the same day, the court denied defendant’s motion,
finding (1) there was no medical record of any seizures since December 1978, (2) a letter
included from Dr. W. E. Scully suggesting the possibility of behavioral problems was
speculative, and (3) medical testing would not produce evidence relevant to sentencing.
¶8 On May 26, 1994, defendant’s sentencing hearing commenced. Defendant
renewed his motion for neurological testing, and the circuit court reserved ruling on the motion.
In aggravation, the State presented evidence as to the nature of the murders, victim impact
statements from relatives of the victims, and testimony from Clark County Sheriff’s Office
investigator Jerry Lorton as to defendant’s lack of visible remorse when interviewed.
¶9 In mitigation, Charles Shotts Jr., defendant’s neighbor, described defendant as
helpful and cheerful, stating the murders were out of character for defendant where defendant
had “never exhibited anything that would even lead to hurting somebody, let alone taking a life.”
Peggy Sanders, defendant’s father’s wife, described defendant as a good person. She stated she
could not believe defendant had been involved in the murders because he was not violent in any
way. Betty Ortiz, defendant’s mother, testified defendant was raised by his grandmother and she
did not have a relationship with him until after he graduated high school. Ortiz stated defendant
would do anything asked of him, describing him as a follower. Gladys McManus, defendant’s
sister, testified as to defendant’s childhood and living situation. McManus testified defendant
was diagnosed with epilepsy. McManus also stated she “just couldn’t believe” defendant was
involved in the murders.
¶ 10 Defendant testified he had been diagnosed with epilepsy as a child and was
prescribed Dilantin. At some point, the doctor no longer prescribed the medication, but defendant
-3- could not remember when he stopped taking the medication. Defendant claimed to have a seizure
in jail on April 18, 1994. Defendant described his childhood, including physically abusive
behavior from his uncle. Defendant testified he had been placed in special education classes in
elementary school and through high school. He had obtained a CDL license and attempted to join
the military but could not pass the tests. Defendant described his relationship with his co-
defendant, Victor Phillippi, and discussed at length his involvement in the murders. Defendant
expressed he was sorry for his involvement and found religion since his incarceration.
¶ 11 The State requested extended term and consecutive sentencing for a term totaling
114 years in the Department of Corrections. Defense counsel argued extended term sentencing
and consecutive sentencing were not appropriate, requesting a term of incarceration at the lower
end of the possible term available.
¶ 12 The circuit court denied defendant’s renewed motion for neurological testing on
the previously decided grounds. The court stated it observed defendant’s demeanor throughout
the proceedings and reviewed the evidence presented. The court determined “while the
Defendant may be in the low average range of intellectual functioning, he is not mentally
retarded.”
¶ 13 In sentencing defendant, the circuit court determined, “[T]hough this Defendant
has some intellectual limitations, he is not mentally retarded, and any limitations he has did not
cause or contribute to his involvement in these crimes.” The court found no mitigating factors
applied “in a direct or significant way[,]” reviewing all the statutory mitigating factors
individually. In aggravation, the court noted the physical harm of the crimes, as well as
defendant’s prior criminal activity. The circuit court found the crimes “accompanied by
exceptionally brutal or heinous behavior indicative of wanton cruelty.” In addition, the court
-4- determined consecutive sentencing should apply to protect the public and to avoid deprecating
the seriousness of the crime. The circuit court sentenced defendant to consecutive, extended
terms of 100 years’ imprisonment for murder and 14 years’ imprisonment for conspiracy to
commit murder.
¶ 14 This court affirmed the convictions and sentences on direct appeal. People v.
Sanders, 281 Ill. App. 3d 1149 (1996) (table) (unpublished order under Supreme Court Rule 23).
Defendant filed a postconviction petition, and the circuit court summarily dismissed the petition.
Defendant appealed. This court found defendant’s 14-year extended term sentence for conspiracy
to commit murder void (see 730 ILCS 5/5-8-2(a)(4) (West 1996)) and reduced the 14-year
extended-term sentence to a 7-year term, otherwise affirming the dismissal. People v. Sanders,
301 Ill. App. 3d 1111 (1998) (table) (unpublished order under Supreme Court Rule 23).
¶ 15 On October 16, 2000, defendant filed a second postconviction petition alleging
his extended-term sentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466
(2000). The circuit court dismissed defendant’s petition as frivolous and patently without merit,
and this court affirmed the dismissal. People v. Sanders, 328 Ill. App. 3d 1106 (2002) (table)
(unpublished order under Supreme Court Rule 23).
¶ 16 On March 22, 2018, defendant filed a motion for leave to file a third
postconviction petition. In his motion, defendant first addressed the cause and prejudice test,
asserting his issues were based on substantial changes in the rules of criminal procedure, noting
the Supreme Court’s decisions in Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida,
560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and the First District’s decision in
People v. House, 2015 IL App (1st) 110580, 72 N.E.3d 357, all of which were decided after the
circuit court dismissed defendant’s second postconviction petition. Defendant thereafter argued
-5- he was “maneuvered” into pleading guilty, his prior motion for neurological testing was
improperly denied, and his de facto life sentence violated the United States and Illinois
constitutions. In support of his final argument, defendant, who was 23 years old when he
committed the crimes, cited (1) Miller, Graham, and Roper’s consideration of continuing brain
development in adolescents, (2) the House decision to apply such considerations to a defendant
over the age of 18, and (3) experts regarding the developing brain and neuroscientific evidence.
The circuit court denied defendant’s motion, finding res judicata barred defendant’s first two
claims and defendant’s final claim failed to allege a substantial denial of his constitutional rights
in addition to being forfeited.
¶ 17 This appeal followed.
¶ 18 II. ANALYSIS
¶ 19 Defendant appeals, challenging only the circuit court’s denial of his request for
leave to file his constitutional challenge to his de facto life sentence.
¶ 20 A. Standard of Review
¶ 21 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2016))
provides a means to collaterally attack a criminal conviction based on a substantial denial of a
defendant’s state or federal constitutional rights. People v. Hodges, 234 Ill. 2d 1, 9, 912 N.E.2d
1204, 1208 (2009). A proceeding under the Act is a collateral proceeding and not an appeal from
the defendant’s conviction and sentence. People v. Beaman, 229 Ill. 2d 56, 71, 890 N.E.2d 500,
509 (2008). Issues adjudicated on direct appeal or a previous collateral proceeding are barred by
res judicata, and issues that could have been raised but were not are forfeited. People v. Tate,
2012 IL 112214, ¶ 8, 980 N.E.2d 1100. The Act contemplates the filing of only one
postconviction petition. People v. Pitsonbarger, 205 Ill. 2d 444, 459, 793 N.E.2d 609, 621
-6- (2002). A defendant must obtain leave from the circuit court in order to file a successive petition
under the Act. 725 ILCS 5/122-1(f) (West 2016).
¶ 22 To obtain leave to file a successive postconviction petition, a defendant must do
one of the following: (1) show cause and prejudice for the failure to raise a claim in his or her
earlier petition or (2) set forth a colorable claim of actual innocence. Pitsonbarger, 205 Ill. 2d at
459. Cause is defined as “some objective factor external to the defense” that prevented the
defendant from raising the claim in an earlier proceeding. (Internal quotation marks omitted.) Id.
at 460. Prejudice is an error so infectious to the proceedings that the resulting conviction or
sentence violates due process. Id. at 464. We review de novo the denial of a motion for leave to
file a successive postconviction petition. People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 38,
38 N.E.3d 1256.
¶ 23 B. Cause and Prejudice
¶ 24 On appeal, defendant argues the circuit court erred in denying him leave to raise
an as-applied constitutional challenge to his de facto life sentence based in part on Miller and its
progeny in his third postconviction petition. Defendant makes no claim of actual innocence, so
we limit our review to the cause and prejudice exception to the general rule against the filing of
successive postconviction petitions.
¶ 25 The cause-and-prejudice test establishes a higher standard than the
frivolous-or-patently-without-merit standard used for first-stage proceedings. People v. Smith,
2014 IL 115946, ¶ 35, 21 N.E.3d 1172. A defendant seeking leave to file a successive petition
must “submit enough in the way of documentation to allow a circuit court to make that
determination.” (Internal quotation marks omitted.) Id. Our supreme court has held, “leave of
court to file a successive postconviction petition should be denied when it is clear, from a review
-7- 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.” Id. “In other words, the court must
determine whether [the] defendant has made a prima facie showing of cause and prejudice.”
People v. Bailey, 2017 IL 121450, ¶ 24, 102 N.E.3d 114. If such a showing has been made, leave
should be granted and the petition “advances to the three-stage process for evaluating
postconviction petitions,” at which point “the State [has] an opportunity to seek dismissal of the
petition on any grounds, including the defendant’s failure to prove cause and prejudice for not
having raised the claims in the initial postconviction petition.” Id. ¶ 26.
¶ 26 In a progression of cases involving the sentencing of juvenile offenders, the
United States Supreme Court has held the eighth amendment to the United States Constitution
prohibits capital sentences for juveniles who commit murder (Roper, 543 U.S. at 578-79),
mandatory life sentences without the possibility of parole for juveniles who commit nonhomicide
offenses (Graham, 560 U.S. at 82), and mandatory life sentences without the possibility of parole
for juveniles who commit murder (Miller, 567 U.S. at 489). In Roper, Graham, and Miller, the
Court made clear “children are constitutionally different from adults for purposes of sentencing.”
Miller, 567 U.S. 471. Specifically, the Court noted three significant differences between
juveniles and adults. First, a “lack of maturity and an underdeveloped sense of responsibility,
leading to recklessness, impulsivity, and heedless risk-taking.” (Internal quotation marks
omitted.) Id. “Second, children are more vulnerable to negative influences and outside pressures”
because of their limited control over their own environment and their lack of the ability to
remove themselves from crime-producing settings. (Internal quotation marks omitted.) Id. Third,
their characters are not as “well formed” as an adult’s, their traits are “less fixed,” and their
-8- “actions [are] less likely to be evidence of irretrievable depravity.” (Internal quotation marks
omitted.) Id. Following Miller, courts sentencing juveniles must take into account “how children
are different, and how those differences counsel against irrevocably sentencing them to a lifetime
in prison.” Id. at 480.
¶ 27 In Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 736 (2016), the
Supreme Court held Miller applies retroactively. The Supreme Court made clear Miller did not
merely create a procedural requirement but created a new substantive rule of constitutional law
which applies to a specific set of individuals. Id. at 734, 736. The Court explained Miller
determined a life sentence without parole for a juvenile is “excessive for all but ‘the rare juvenile
offender whose crime reflects irreparable corruption.’ ” Id. at 734 (quoting Roper, 543 U.S. at
573). The Court indicated Miller rendered life without parole an unconstitutional penalty for the
class of juvenile offenders “whose crimes reflect the transient immaturity of youth.” Id. at 734.
Therefore, the Court held Miller created a substantive rule of constitutional law which applies
retroactively because there was a significant risk the vast majority of juvenile offenders faced a
punishment the law could not impose on them. Id. at 734, 736.
¶ 28 Noting the language the Court used in Miller “is significantly broader than its
core holding,” and “[n]one of what the court said is specific to only mandatory life sentences,”
(People v. Holman, 2017 IL 120655, ¶ 38, 91 N.E.3d 849), our supreme court has taken this line
of cases even further, holding Miller applies both to discretionary sentences of life without
parole for juvenile defendants (id. ¶ 40) and de facto life sentences of forty years or more for
such defendants (People v. Buffer, 2019 IL 122327, ¶ 40, 137 N.E.3d 763).
¶ 29 Our supreme court has also raised the possibility the principles established in
these cases might apply—on a case-by-case basis—to young adult offenders who were over the
-9- age of 18 at the time of their offenses. In People v. Harris, 2018 IL 121932, ¶¶ 37, 53, 120
N.E.3d 900, an 18-year-old defendant argued on direct appeal Miller protections for juveniles
should be applied to all “young adults under the age of 21,” and his mandatory aggregate
sentence of 76 years of imprisonment thus violated both the eighth amendment to the United
States Constitution and the proportionate penalties clause of the Illinois Constitution. The court
rejected the defendant’s facial challenge, noting the Supreme Court in Roper limited direct
application to those under the age of 18, on the basis “a line must be drawn” somewhere.
(Internal quotation marks omitted.) Id. ¶¶ 45, 60. The court agreed a young adult offender could
make an as-applied challenge to a life-sentence, but because the defendant in Harris had not
raised such a challenge in the circuit court, no evidentiary hearing was held and the record
included no findings regarding characteristics of the defendant specifically pertaining to his
youth. Id. ¶ 46. The defendant’s challenge was premature because the record did not “contain
evidence about how the evolving science on juvenile maturity and brain development that helped
form the basis for the Miller decision applie[d] to defendant’s specific facts and circumstances.”
Id. ¶ 46. The court concluded the defendant’s challenge would be more appropriately considered
in a postconviction petition. Id. ¶ 48.
¶ 30 In Harris, the court largely relied upon its earlier analysis of these issues in
People v. Thompson, 2015 IL 118151, 43 N.E.3d 984. In Thompson, a 19-year-old defendant
attempted to raise an as-applied constitutional challenge to his mandatory natural life sentence
for the first time on appeal from the dismissal of a petition for relief under section 2-1401 of the
Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Thompson, 2015 IL 118151, ¶¶ 1, 4.
He argued eighth amendment Miller considerations should apply with “ ‘equal force’ to
individuals between the ages of 18 and 21.” Id. ¶ 21. The defendant exclusively relied on the
- 10 - evolving science regarding juvenile maturity and brain development in support of this position.
Id. ¶ 38. The court held the defendant’s as-applied challenge under Miller was forfeited because
it was not a type of challenge recognized as being exempt from the typical rules of forfeiture. Id.
¶ 39. The court noted in dicta, however, the defendant’s as-applied challenge was really a facial
challenge because he relied exclusively on the evolving science of brain development, and the
record contained “nothing about how that science applie[d] to the circumstances of [the]
defendant’s case, the key showing for an as-applied constitutional challenge.” Id. ¶ 38.
¶ 31 After the Harris and Thompson decisions, Illinois courts have had to examine at
what age a young adult may make an as-applied Miller challenge in a postconviction proceeding.
In People v. House, 2019 IL App (1st) 110580-B, ¶¶ 17, 23, 142 N.E.3d 765, the court
considered the second-stage dismissal of a 19-year-old defendant’s postconviction petition, in
which he asserted in part his mandatory life sentence violated the proportionate penalties clause.
After discussing the evolving science regarding brain development and considering our supreme
court’s decision in Harris, the House court concluded the line drawn at 18 years of age
demarcating adulthood for legal purposes was “somewhat arbitrary.” Id. ¶¶ 55-56. It held the
defendant’s mandatory life sentence violated the proportionate penalties clause and shocked the
moral sense of the community because of the “defendant’s age, his family background, his
actions as a lookout as opposed to being the actual shooter, and [his] lack of any prior violent
convictions[.]” Id. ¶ 64. The court noted the defendant’s age, coupled with his relevant
culpability, created questions regarding the “propriety of a mandatory natural life sentence for a
19-year-old defendant convicted under a theory of accountability.” Id. ¶ 46.
¶ 32 Courts faced with cases in which a defendant (1) played a more active role in the
crime or (2) received a discretionary rather than a mandatory sentence have distinguished House
- 11 - on one or both of these bases. See, e.g., People v. Ramsey, 2019 IL App (3d) 160759, ¶¶ 22-23,
143 N.E.3d 865 (rejecting an 18-year-old defendant’s proportionality claim and noting he was
the sole actor who committed the offenses) and People v. Handy, 2019 IL App (1st) 170213,
¶¶ 1, 41 (finding an 18-year-old defendant was not entitled to a new sentencing hearing because
he was an active participant in the crimes and received a discretionary sentence). Here, although
defendant did not pull the trigger himself, defendant’s role in the crimes was much more active
than merely serving as a lookout, and defendant received a discretionary sentence. However, we
need not consider whether these two factors are sufficient to distinguish defendant’s claims from
House because we have found no support for application the of the Miller principles to
defendants who were more than 20 years old at the time of their crimes.
¶ 33 In People v. Hoover, 2019 IL App (2d) 170070, 131 N.E.3d 1085, for example,
the court considered a 22-year-old’s as-applied sentencing challenge under the proportionate
penalties clause and rejected the defendant’s claim, finding the defendant did not satisfy the
cause prong of the cause-and-prejudice test because the proportionate penalties clause was
always in existence, therefore the defendant could have raised a proportionate penalties
challenge at the time of his direct appeal. Id. ¶¶ 19, 37.While not necessarily agreeing with the
Second District that evolving caselaw extending Miller’s application could never satisfy the
cause prong, it is clear Hoover provides no support for the argument the law as it currently stands
establishes individuals like defendant—who were 21 years of age or older at the time of their
offenses—may bring as-applied challenges like those the Harris court was asked to consider for
offenders between the ages of 18 and 20.
¶ 34 In People v. Suggs, 2020 IL App (2d) 170632, ¶¶ 30-44, 146 N.E.3d 892, the
court likewise affirmed the summary dismissal at the first stage of an initial postconviction
- 12 - petition where the defendant, who was 23 years old at the time of his offense, raised eighth
amendment and proportionate penalties challenges to his de facto life sentence. The Suggs court
noted, although “society has drawn lines at ages 18 and 21 for various purposes,” the defendant
failed to “point to any line, societal, legal, or penological, that is older than 21 years.” Id. ¶ 35.
The court concluded while it may seem “but a short step” to apply the Miller factors to an
18-year-old offender, “it is a much greater leap to extend [them] to a 21-year-old, and an even
greater leap to apply [them] to a 23-year-old,” such as the defendant in that case. Id.
¶ 35 Additionally, in People v. Figueroa, 2020 IL App (2d) 160650, ¶¶ 86-89, the
court ultimately did not address the as-applied proportionate penalties challenge of a defendant
who was 22 years old at the time of his offense, finding instead his claim, made for the first time
on direct appeal, was premature. None of these cases support the extension of the law defendant
proposes.
¶ 36 Moreover, the secondary source defendant references on appeal does not advocate
for the extension of the Miller principles to young adults over the age of 21. See Elizabeth S.
Scott et al., Young Adulthood As a Transitional Legal Category: Science, Social Change, and
Justice Policy, 85 Fordham L. Rev. 641, 664 (considering the advantages of giving juvenile
courts jurisdiction over young adults 21 years old or younger but concluding scientific evidence
does not justify an institutional reform of that magnitude.)
¶ 37 We note further defendant’s arguments as to his particular mental development
due to his intellectual limitations also do not support extending the law. After this case was fully
briefed, our supreme court considered People v. Coty, 2020 IL 123972. As defendant references,
the First District determined the intellectually disabled defendant’s discretionary life sentence
violated the proportionate penalties clause. Id. ¶¶ 14-15. However, our supreme court reversed,
- 13 - holding although Miller is based in part on the lesser culpabilities of youth, characteristics those
with intellectual disabilities tend to share, “the Miller Court’s decision is founded, principally,
upon the transient characteristics of youth, characteristics not shared by adults who are
intellectually disabled.” (Emphasis in original.) Id. ¶ 39. Therefore, where juveniles, through
neurological development may grow out of such deficiencies, such growth was not a prospect for
the 46-year-old intellectually disabled adult in question. Id. ¶ 40. We decline to extend the Miller
principles where “[t]he rehabilitative prospects of youth do not figure into the sentencing
calculus” as with intellectually disabled defendants. Id.
¶ 38 Defendant is correct there have been changes in the law regarding sentencing
“youthful offenders” and those with “intellectual disabilities,” and we have discussed those
changes above. However, the law has not changed sufficiently for defendant to meet the high
burden of establishing cause and prejudice to file a successive petition. We acknowledge the
cases defendant relies on were not available to him at the time of his prior postconviction
petitions, but their holdings do not establish defendant is entitled to the relief he seeks. Our
supreme court has not recognized as-applied sentencing challenges seeking application of the
Miller sentencing factors for defendants more than 20 years old at the time of their offenses and
with intellectual deficits.
¶ 39 III. CONCLUSION
¶ 40 We affirm the circuit court’s denial of defendant’s motion for leave to file a
successive postconviction petition.
¶ 41 Affirmed.
- 14 -