2025 IL App (1st) 240953-U
FIRST DIVISION July 28, 2025
No. 1-24-0953
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. 06 CR 2659801 TRISTAN SCAGGS, ) ) Honorable Petitioner-Appellant. ) Michael R. Clancy, ) 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 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, Tristan Scaggs, appeals from the circuit court’s order denying his pro se
motion for leave to file his successive postconviction petition pursuant to the Post-Conviction No. 1-24-0953
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). On appeal, the petitioner contends that
he sufficiently established cause and prejudice with respect to his as-applied proportionate
penalties’ challenge to his 38-year sentence, imposed for a crime he committed when he was 19
years old (see Ill. Const. 1970, art I, § 11). The petitioner acknowledges that his sentence is less
than 40 years’ imprisonment, such that it does not fall squarely within our supreme court’s
definition of what constitutes a de facto life sentence (People v. Buffer, 2019 IL 122327, ¶¶ 27,
40-41) but nonetheless argues that under his very unique circumstances because he has only one
kidney that is now in renal failure, he is unlikely to survive that sentence. For the following reasons,
we affirm.
¶3 I. BACKGROUND
¶4 Because the procedural history of this case and the evidence adduced at the petitioner’s
trial are fully articulated in our decisions addressing the petitioner’s direct appeal (People v.
Scaggs, 2011 IL App (1st) 090666-U), and the dismissal of his initial postconviction petition
(People v. Scaggs, 2021 IL App (1st) 173017-U), we set forth only those facts relevant to the
resolution of the issues raised here.
¶5 This cause of action stems from an incident that occurred on October 30, 2006, after which
the petitioner and two codefendants (Melvin Martin and Lamel Burns) were arrested and charged
with, inter alia, felony first degree murder, attempt murder of a peace officer, and conspiracy to
commit murder. According to the indictment, the petitioner entered into an agreement with
codefendants Martin and Burns to kill the victim, Dwandric McDowell, and, in the course of this,
pointed a gun at a police officer, which led to the deaths of two additional coconspirators, Marcus
Thomas and William Tyler, who were killed at the scene.
¶6 The petitioner proceeded to a jury trial at which the following summarized evidence was
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adduced. In the summer of 2006, the New Breeds and the Traveling Vice Lords street gangs were
engaged in a violent gang war. McDowell was a ranking member of the Traveling Vice Lords,
while codefendants Burns and Martin were ranking members of the New Breeds. Thomas and
Tyler were also members of the New Breeds, while the 19-year-old petitioner was merely “an
associate.”
¶7 In October 2006, the police were given permission to conduct a wiretap of the
codefendants’ cell phones and were monitoring a black Pontiac Grand Prix, which had been
reported stolen. On October 30, 2006, the police intercepted several phone conversations between
the codefendants and the petitioner, which led them to believe that the codefendants and the
petitioner were looking for McDowell to kill him. At about 6 p.m., the police, led by Lieutenant
Joseph Gorman, decided to stop the Pontiac Grand Prix.
¶8 The two officers who were first on the scene, Lieutenant Gorman and Sergeant James
Sanchez, testified that as they approached the vehicle, they saw three men inside. Tyler was in the
driver’s seat, the petitioner was in the front passenger seat, and Thomas was in the back. As
Sergeant Sanchez, armed with a shotgun, approached the driver’s side of the vehicle from the front,
he saw Tyler, who was wearing latex gloves, lean back, reach for his waistband, and yell “[g]et
these b*tches.” Sergeant Sanchez did not see the petitioner with a gun but noticed that Thomas,
who was sitting in the back, had latex gloves in his pocket. At the same time, Lieutenant Gorman
approached the rear driver’s side of the vehicle. He saw a barrel of a rifle breaking the window of
the back seat and yelled that there was a gun. The two officers then repeatedly shot at Thomas and
Tyler, both of whom died at the scene. The officers later retrieved a rifle from Thomas’ hand but
did not find any weapons on Tyler.
¶9 Sergeant Michael Bocardo, who arrived at the scene after Lieutenant Gorman and Sergeant
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Sanchez, heard gunfire and then saw the petitioner exit the Pontiac Grand Prix and approach him.
The petitioner was wearing latex gloves and holding a gun. According to Sergeant Bocardo, the
petitioner ignored his order to drop the weapon and instead raised his gun in his direction.
“[B]eliev[ing]” that the petitioner had shot him, Sergeant Bocardo fired at the petitioner twice. The
petitioner fell to the ground but continued to raise his gun at the sergeant, so the sergeant shot him
again. Sergeant Bocardo testified that it was not until he approached the immobilized petitioner on
the ground that he realized that the petitioner had a hole in his back. The parties stipulated that the
petitioner was shot in the back, and that even after surgery, the bullet remains lodged in his right
hip.
¶ 10 On cross-examination, Sergeant Bocardo admitted that at the time he shot the petitioner,
the petitioner’s torso was not facing him. He also admitted that before the petitioner exited the
Pontiac Grand Prix, another detective opened the front passenger side door for him, whereupon
the gunfire erupted. That officer, however, did not testify at the petitioner’s trial.
¶ 11 Detective James Egan, who did not witness the shooting, testified that when he arrived at
the scene, the petitioner was lying on the ground about to be put into handcuffs. Detective Egan
pulled a .9-millimeter handgun from underneath the petitioner’s left side.
¶ 12 Forensic evidence established, inter alia, that all 69 shell casings that were recovered from
the scene came from weapons belonging to the police. Also recovered were a rifle and a .9-
millimeter pistol with a magazine and six unfired cartridges. Testing confirmed that while both
Tyler and Thomas, who were now deceased, could not be excluded from the DNA profiles that
were extracted from that rifle and pistol, the petitioner was excluded, as his DNA was not on either
weapon.
¶ 13 Based on this evidence, the jury acquitted the petitioner of felony first degree murder but
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found him guilty of conspiracy to commit murder and attempt murder.
¶ 14 At the subsequent sentencing hearing, the parties offered evidence in aggravation and
mitigation. The State sought the imposition of the maximum 80-year sentence for attempt murder. 1
The State argued that the petitioner’s conduct was gang-related and had threatened the public with
serious harm. Relying on the presentence investigation report (PSI), the State also pointed out that
the petitioner’s criminal history included one prior felony drug arrest for manufacture/delivery of
less than 15 grams of heroin, for which he was out on bond prior to committing the instant crime,
and for which he was subsequently convicted and sentenced to six years imprisonment (No. 06 CR
1113901). The State also noted that while awaiting trial in the instant matter, the petitioner had
acquired two additional convictions for possession of cannabis in a penal institution (see Nos. 07
CR 1868804, 08 CR 0397701) for which he was sentenced to two and three years respectively.
The State, therefore, asserted that the maximum sentence was required to deter the petitioner’s
future criminal conduct, as he “clearly doesn’t behave himself [even] when he is in a custodial
situation.”
¶ 15 Defense counsel, on the other hand, asked the trial court to impose the minimum 20-year
sentence. According to counsel, the petitioner was not beyond rehabilitation because he had
attended high school and had no prior felony convictions or adjudications before the instant case.
In support, counsel offered two letters from the petitioner’s family proclaiming his good character,
1 Because the petitioner was charged and convicted of attempt first degree murder of a peace officer, he was subject
to a sentence between 20 to 80 years’ imprisonment (720 ILCS 5/8-4(c)(1)(A) (West 2006)) rather than the
sentencing range of 6 to 30 years’ imprisonment for attempt first degree murder. Id. § 8-4(c)(1); 730 ILCS 5/5-4.5-
25 (West 2006)).
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asking for leniency, and offering to look after him upon release.
¶ 16 Defense counsel also argued that the petitioner had neither facilitated nor planned the
instant crime but was present at the scene only because he had been instructed and led there by
“frightening” high ranking members of the New Breeds. Counsel also pointed out that the
petitioner was “a fatherless child,” who grew up around the New Breeds, which was “almost a
formula for him to end up where he [wa]s sitting right now.” He was “a youth with really no, no
guidance whatsoever.”
¶ 17 Defense counsel also argued that the petitioner had not shot at anyone and therefore did
not endanger or pose any threat to the public, but was, instead, shot by the police. What is more,
counsel argued, as a result, the petitioner had suffered serious medical injuries, which necessitated
his hospitalization for over a month. As counsel pointed out, it was undisputed that the gunshot
wound to the petitioner’s back resulted in the petitioner losing his right kidney and required him
to undergo open heart surgery to remove fluid buildup around his heart. Furthermore, since then,
the petitioner had suffered from complications arising from his compromised immune system,
including swelling to his legs and inflammation of his left kidney. According to counsel, the
petitioner must now take nine different medications for his heart and kidney problems. Counsel
therefore argued that imprisonment would endanger the petitioner’s medical condition.
¶ 18 After hearing the parties’ arguments, the trial court sentenced the petitioner to concurrent
terms of 38 years for attempt murder and 15 years for conspiracy. In doing so, the court
acknowledged that as a result of the shooting, the petitioner had serious physical infirmities but
found that imprisonment would not endanger his medical condition and that a significant period
of incarceration was necessary to safeguard the public. As the court explained, because this was
“a gang related case *** there may be some members of that organization to which [the petitioner]
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belongs that would benefit by seeing a severe sentence handed down.” The court also found
relevant that the petitioner’s criminal history included a prior arrest for a drug offense, as well as
two subsequent convictions for possession of cannabis, which the petitioner had acquired while in
custody awaiting trial. As the court explained, “[m]ost of [his] adult life here [the petitioner has]
been making bad decisions.”
¶ 19 On direct appeal, we reversed the petitioner’s conviction for conspiracy to commit murder,
vacating that portion of his sentence, but affirmed his conviction and sentence for attempt murder.
See Scaggs, 2011 IL App (1st) 090666-U, ¶ 90. In doing so, we found that the trial court committed
reversible error by admitting hearsay wiretapped phone conversations between Tyler, Thomas,
Burns, Martin, and the petitioner, regarding their plans to find and kill McDowell without any
independent proof demonstrating a conspiracy involving the petitioner. Id., ¶ 30.
¶ 20 On April 29, 2013, 2 the petitioner filed his first postconviction petition, alleging ineffective
representation. The petitioner argued that his appellate counsel was ineffective for failing to argue
that he was entitled to a new trial on the attempt murder charge based on the admission of the same
wiretap evidence that was used to convict him of conspiracy to commit murder. In addition, the
petitioner argued that his trial counsel was ineffective for failing: (1) to call witnesses to impeach
Sergeant Bocardo, by testifying about the petitioner exiting the vehicle and complying with the
officer’s orders; (2) to investigate Seargent Bocardo’s past misconduct; and (3) to raise a due
process challenge or request an adverse instruction based on the State allowing the Pontiac Grand
Prix to be destroyed despite a preservation order. After the circuit court dismissed the petition at
the second stage of postconviction proceedings, we affirmed. See Scaggs, 2021 IL App (1st)
2 The petition was amended on March 15, 2016.
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173017-U, ¶¶ 34-83.
¶ 21 On November 28, 2022, the petitioner filed the instant verified pro se motion for leave to
file his successive postconviction petition. Therein the petitioner solely argued that his 38-year
sentence, imposed for an offense that he committed when he was 19 years old, without proper
consideration of his youth and its attendant characteristics violated the Illinois proportionate
penalties clause. (Ill. Const. 1970, art. I, § 11). The petitioner acknowledged that, under our
supreme court’s holdings, his 38-year sentence, which is to be served at 85%, is not a de facto life
sentence. Buffer, 2019 IL 122327, ¶¶ 27, 40-41 Nonetheless, he argued that under his unique
circumstances, i.e., his remaining kidney going into renal failure and requiring a transplant, he is
unlikely to survive until 56, such that for him 38 years, is in fact, a life sentence.
¶ 22 The petitioner alleged both cause for his inability to raise this claim earlier and prejudice
stemming from the imposition of his sentence. With respect to cause, the petitioner argued that the
legal and scientific basis for his claim did not exist earlier. Specifically, the petitioner asserted that
it was not until 2018, that in People v. Harris, 2018 IL 121932, our supreme court acknowledged
that the proper vehicle for young adult offenders, such as himself, to raise as-applied youth based
proportionate penalties sentencing challenges was via postconviction petitions, and that
“[s]tatutory law has only recently *** changed in favor of treating young adults differently when
it comes to punishment.” See e.g., 730 ILCS 5/5-4.5-115 (West 2019) (offenders under the age of
21, such as the petitioner, are now eligible for parole after serving only 10 or 20 years, depending
on their offenses).
¶ 23 In addition, the petitioner argued that the individualized scientific basis for his
proportionate penalties’ challenge was not available earlier because it was not until 2016 that
scientists began to consider the brain development of young adult offenders over the age of 18 in
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the context of sentencing. As such, the petitioner argued that he was “only now able to fulfill the
Illinois Supreme Court’s mandate of showing how the evolving science concerning young adults
applie[d] to himself.”
¶ 24 In support of this assertion, the petitioner attached a 38-page report prepared on September
3, 2022, by expert developmental psychologist Dr. James Garbarino. In that report, Dr. Garbarino
explained that he was not “offering any clinical diagnoses,” but rather serving as “an educational
witness,” and providing “a developmental perspective” regarding the petitioner’s “pathway from
childhood to adolescence to adulthood” in the context of the new neuroscientific research
regarding the evolution of young adult brains, which reveals that the development of brain
structure, function, and connectivity continues well throughout an individual’s early twenties and
impacts both a young adult’s thought process and future potential for rehabilitation.
¶ 25 Dr. Garbarino stated that in completing his report he reviewed: (1) the materials in the
petitioner’s case; (2) the petitioner’s records from the Illinois Department of Corrections (IDOC);
and (3) his correspondence with the petitioner regarding the petitioner’s social history. In addition,
Dr. Garbarino administered the Adverse Childhood Experiences (ACE) test, which is a risk
assessment tool, endorsed by the Centers for Disease and Control (CDC) that predicts future health
and functioning based upon an individual’s traumatic childhood experiences. According to Dr.
Garbarino, the ACE scale assesses risk factors through a series of ten questions, including inquiries
about childhood experiences of physical, sexual, and psychological maltreatment, poverty,
domestic violence, household substance abuse, parental separation or divorce, depression or
suicide in family members, and family incarceration. The petitioner’s ACE score was 9 out of 10,
which is worse than 99.9% of the general population.
¶ 26 According to Dr. Garbarino, this score reflected, inter alia, some of the following
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childhood experiences. The petitioner never knew his father and instead lived with his disabled
mother, who was deaf from birth and could therefore not obtain employment. There were often
nights when there was not enough food. The petitioner’s mother was depressed because of her
disability and repeatedly threated to kill herself by taking pills. At one point, she was hospitalized
for a stress attack and the petitioner had to take care of his siblings by himself for two weeks.
When the petitioner was 10 years old, his mother was evicted, and they had nowhere to live. The
petitioner moved from place to place, often being passed to different family members for a time,
with each new residence located in a worse area of west Chicago, where shootings occurred daily.
The petitioner saw a person killed for the first time when he was 10 years old.
¶ 27 The petitioner’s grandmother was both physically and verbally abusive to the petitioner.
She swore at him, called him stupid, beat him with belts, hangers, and vacuum chords, and even
threw a crate at him once. The petitioner was sexually abused by a neighbor when he was 11 or 12
years old. The petitioner’s aunt and uncle were heavy crack cocaine and heroin users, and he often
found baggies and pipes on the floor or in the bathroom of their home. Because of their rampant
drug abuse, his family members were always fighting and stealing from each other. The petitioner
was instructed by his family not to talk about his feelings or what was happening in the household
because he would be taken away by the Department of Children and Family Services (DCFS).
¶ 28 By age 12, the petitioner joined the Four Corner Hustlers and by age 17 he regularly carried
a gun for protection. Gang life was part of the school structure. Everyone the petitioner knew was
in a gang. He joined because he did not want to be someone who “could be mistreated.” The
petitioner started using marijuana at age 11 and ecstasy by age 17 and used both regularly. He
liked elementary school but after his best friend was killed in high school, he increasingly got
involved in gang life, selling drugs for them. When asked by Dr. Garbarino how he thought his
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childhood compared to that of others, the petitioner stated that he only knew how other children
around him grew up and they were raised in the same way.
¶ 29 Based on new neuroscientific research regarding the development of young adult brains,
and the petitioner’s aforementioned social history, Dr. Garbarino opined to a reasonable degree of
scientific certainty that the petitioner’s immature brain, which was further stunted by severe
adversity and childhood trauma, was the crucial factor in the petitioner’s behavior in 2006. In fact,
according to Dr. Garbarino, the petitioner’s brain as experiencing “adolescence squared.” In
addition, Dr. Garbarino opined that the petitioner lived in “an urban war zone,” and therefore had
a “war zone mentality,” which is reflected in extreme sensitivity or hyper vigilance to both verbal
and physical threats, and a high probability of responding to perceived threats with aggression,
including preemptive assaults (i.e., “get them before they get me.”). Dr. Garbarino concluded that,
when combined, these factors made it plausible that the petitioner would be involved in crime,
and, in particular, that he would respond the way he did when confronted by the police in 2006.
¶ 30 Dr. Garbarino nonetheless opined that the petitioner was neither “so psychologically
damaged as a child that by the time he entered adolescence he was irreparably” stunted in his
development and therefore “at a high risk for a lifelong pattern of anti-social behavior and crime,”
nor so “psychologically damaged” during his incarceration that “he could not take advantage of
and profit from opportunities for rehabilitation while in prison.” In this respect, Dr. Garbarino
noted that in his correspondence with the petitioner, the petitioner acknowledged the
destructiveness of his previous actions and no longer looked positively on gang life, which so
strongly occupied his youth. Instead, the petitioner was focused on his religion, family, and
personal growth. According to Dr. Garbarino, while the petitioner initially joined a gang when he
entered prison because he was threatened and wanted to avoid sexual assault, in 2013, at age 25,
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he disavowed the gang when he converted to Islam. Since then, he has turned to religion and self-
improvement, finishing his GED and taking available courses in prison, with the support of his
family. The petitioner’s IDOC records reflect only four tickets between 2009 and 2020, none of
which were for violent behavior. In fact, one of the tickets was for “refus[al] to stop leading prayer
on yard,” and reflected his devotion to Islam rather than an antisocial attitude.
¶ 31 Dr. Garbarino finally concluded that it is yet to be determined whether the petitioner
presently has the psychological resources and social support necessary to make a successful
transition from prison to succeed in a positive post-release life.
¶ 32 On February 23, 2024, the circuit court denied the petitioner’s request for leave to file his
successive postconviction petition, finding that the petitioner’s 38-year sentence was not a de
facto life sentence, and that he failed to establish cause for not raising this claim earlier. The
petitioner now appeals.
¶ 33 II. ANALYSIS
¶ 34 The Act (725 ILCS 5/122-1 et seq. (West 2020)) provides a mechanism by which criminal
defendants may address substantial violations of their constitutional rights that occurred either at
trial or at sentencing. See People v. Cotto, 2016 IL 119006, ¶ 26; People v. English, 2013 IL
112890, ¶ 22. Because the Act is not a substitute for an appeal, but rather, a collateral attack on a
final judgment, issues that were not presented in an original postconviction petition are forfeited
and issues that were previously raised and addressed on direct appeal are barred by the doctrine
of res judicata. People v. Clark, 2023 IL 127273, ¶ 38 (citing 725 ILCS 5/122-3 (West 2014)); see
also People v. Sanders, 2016 IL 118123, ¶ 24.
¶ 35 Consistent with these principles, the Act contemplates the filing of only one petition
without leave of court and codifies the cause-and-prejudice test as the prerequisite to obtaining
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such relief. People v. Lusby, 2020 IL 124046, ¶ 27; People v. Edwards, 2012 IL 111711, ¶ 23; see
also 725 ILCS 5/122-1(f) (West 2020). To obtain leave, the petitioner must demonstrate: (1) cause
by identifying an objective factor that impeded his ability to raise the specific claim during his
initial postconviction proceedings; and (2) prejudice stemming from that failure by demonstrating
that the claim not raised in his initial postconviction proceedings so infected the resulting
conviction or sentence that it violated due process. 725 ILCS 5/122-1(f) (West 2020). Both
elements must be met before a petitioner is permitted to proceed with a successive petition. Clark,
2023 IL 127273, ¶ 47 (citing People v. Davis, 2014 IL 115595, ¶ 14).
¶ 36 In deciding a motion for leave to file a successive petition the circuit court conducts “a
preliminary screening” of the pleadings to determine whether the motion adequately alleges facts
that make a prima facie showing of cause and prejudice as to each individual claim. Clark, 2023
IL 127273, ¶ 47 (citing People v. Smith, 2014 IL 115946, ¶ 33). If the petitioner makes such a
showing, “ ‘fundamental fairness requires that an exception be made *** so that a claim raised in
a successive petition may be considered on its merits.’ ” People v. Griffin, 2024 IL 128587, ¶
66 (quoting People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)). Leave of court is 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. People v. Bailey, 2017 IL 121450, ¶ 13.
¶ 37 In the present case, the petitioner challenges the circuit court’s denial of his motion for
leave to file his proportionate penalties claim contending that he made a prima facie showing of
both cause and prejudice. With respect to cause, the petitioner solely asserts that he could not have
13 No. 1-24-0953
raised his claim earlier because Dr. Garbarino’s expert report analyzing his particular upbringing
and circumstances in the context of new neuroscientific research regarding the brain development
of young adults was unavailable to him at the time he filed his initial postconviction petition. With
respect to prejudice, the petitioner asserts that without this information, the sentencing court had
no opportunity to apply the new neuroscientific research to his particular circumstances to
determine whether he was more akin to a juvenile than an adult at the time he committed the instant
crime and therefore less culpable, such that the imposition of his de facto life sentence, violated
the Illinois proportionate penalties clause. In this respect, the petitioner acknowledges that under
Illinois law his 38-year sentence is not a de facto life sentence, i.e. a sentence greater than 40 years’
imprisonment (Buffer, 2019 IL 122327, ¶¶ 27, 40-41), but nonetheless assert that under his very
unique circumstances because of his serious medical condition, i.e., his remaining kidney going
into renal failure and requiring a transplant, he is unlikely to survive that long.
¶ 38 Contrary to the circuit court’s ruling, the fact that the petitioner did not receive a de facto
life sentence by no means prohibits him from arguing that his sentence violated the Illinois
proportionate penalties clause. People v. Spencer, 2025 IL 130015, ¶ 42 (reiterating that “a
defendant may challenge a sentence of any length” and that therefore “the appellate court erred by
finding that, because [the defendant] did not receive a de facto life sentence, he c[ould not]
establish that his sentence violated the proportionate penalties clause.”). Nonetheless, for the
following reasons, and despite the petitioner’s legitimate concerns regarding his health,
considering our supreme court’s decisions in Clark, 2023 IL 127273, and People v. Moore, 2023
IL 126461, we are forced to conclude that the petitioner cannot establish the requisite cause for
failing to raise this claim in an earlier proceeding.
¶ 39 Under article I, section 11 of the Illinois Constitution, commonly known as the
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proportionate penalties clause, “[a]ll penalties shall 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. “The mandate set forth in article I, section 11, provides a check on the
judiciary, i.e., the individual sentencing judge, as well as the legislature, which sets the statutory
penalties.” Spencer, 2025 IL 130015, ¶ 42. A challenge to the decision of the individual sentencing
judge is based upon a defendant’s belief that, even though the sentence comports with the
sentencing statute, the sentence nonetheless violates the proportionate penalties clause “because
the judge failed to set the sentence ‘according to the seriousness of the offense and with the
objective of restoring the [defendant] to useful citizenship.’ ” Id. (quoting 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)). We have never defined 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 [our] community.” Id. (quoting Leon Miller, 202 Ill. 2d at 339).
¶ 40 In Illinois, “emerging adult offenders” (those who are 18 or 19 years old) may raise as-
applied proportionate penalties clause challenges to their sentences based on the evolving science
on juvenile maturity and brain development. Spencer, 2025 IL 130015, ¶ 43; Clark, 2023 IL
127273, ¶ 87; People v. Walker, 2022 IL App (1st) 201151, ¶ 27 (“our supreme court has held that
young adults may rely on the evolving neuroscience and societal standards underlying the rule in
Miller [v. Alabama, 567 U.S. 460 (2012)] to support an as-applied challenge to a life sentence”);
see also 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
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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 was
“more appropriately raised” in 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). Our supreme court has
instructed that such claims require an adequately developed factual record as to how the evolving
science regarding maturity and brain development applies to the petitioner’s specific
circumstances. House, 2021 IL 125124, ¶ 29 (an as-applied challenge to a criminal sentence based
on the proportionate penalties clause requires an evidentiary record “relating to how the evolving
science on juvenile maturity and brain development applies to [the defendant’s] specific facts and
circumstances” so that the trial court may make “factual findings critical to determining whether
the science concerning juvenile maturity and brain development applies equally to *** [the
defendant] specifically.”).
¶ 41 Nonetheless, while our supreme court has permitted “emerging adult” offenders to raise
such claims in initial postconviction proceedings, its recent decisions have deliberately narrowed
the ability of petitioners to do so by way of successive petitions. See Clark, 2023 IL 127273, ¶¶
24-26; Moore, 2023 IL 126461, ¶¶ 40-42; People v. Horshaw, 2024 IL App (1st) 182047-B, ¶
51.
¶ 42 Specifically, in Clark, our supreme court held that a 24-year-old offender with intellectual
disabilities could not challenge his discretionary de facto life sentence in a successive petition by
simply relying on the unavailability of the decision in Miller, 567 U.S. 460, or its progeny. In
finding that the petitioner failed to satisfy the cause element of the cause-and-prejudice test, our
supreme court first explained that its prior decisions in Thompson and Harris, opening the door
16 No. 1-24-0953
for young adult offenders to raise Miller-based proportionate penalties challenges to their
sentences, “addressed the possibility of” such challenges “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). Accordingly, where a petitioner, such as the one
in Clark, attempted to raise such a claim in a successive petition he first needed to establish cause
for failing to raise his claim in his original postconviction petition. Id.
¶ 43 Our supreme court next noted that in People v. Dorsey, 2021 IL 123010, ¶ 74, it had
previously held that “ ‘Miller’s announcement of a new substantive rule under the eighth
amendment does not provide cause for a [juvenile offender] to raise” a proportionate penalties
challenge in a successive petition because, “ ‘[l]ong before Miller, Illinois law recognized the
special status of juvenile offenders for purposes of applying the principles under the proportionate
penalties clause.’ ” Clark, 2023 IL 127273, ¶¶ 61, 92 (quoting Dorsey, 2021 IL 123010, ¶ 74). The
Clark court then elaborated its rationale for its holding in Dorsey, stating:
“We reached this conclusion because, long before Miller, many cases in this state already
recognized that ‘courts have discretion to grant leniency to a juvenile even if he or she is
prosecuted as an adult.’ [Citation.] As far back as 1894, this court recognized that ‘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. The habits and characters of the latter are
presumably, to a large extent as yet unformed and unsettled.’ [Citation.] In addition, other
Illinois cases have long held that the proportionate penalties clause required the circuit
court to take into account the defendant’s ‘youth’ and ‘mentality’ in fashioning an
appropriate sentence. [Citations.].” Clark, 2023 IL 127273, ¶ 92.
¶ 44 The Clark court recognized that Dorsey involved a juvenile offender, i.e. one under age
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18, but found that the “same reasoning” applied to the 24-year-old young adult offender in that
case, because Illinois courts “were also aware that less than mature age can extend into young
adulthood” and “insisted that sentences take into account that reality of human development.”
(Internal quotation marks omitted.). Id. ¶ 93 (citing People v. Haines, 2021 IL App (4th) 190612,
¶ 47). Our supreme court in Clark then held that because “Miller does not present new
proportionate penalties clause principles with respect to discretionary sentencing of young adult
offenders” “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.) Clark, 2023 IL 127273, ¶ 93. The Clark court thus concluded that because
“Miller’s unavailability does nothing to explain why the defendant neglected to raise the
proportionate penalties claim in his prior postconviction proceedings,” “citing the Miller line of
cases does not satisfy the ‘cause’ prong of the cause-and-prejudice test.” Id. ¶ 94.
¶ 45 Shortly after Clark, in Moore, 2023 IL 126461, ¶¶ 12, 23, our supreme court reaffirmed
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
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to young adults, it [did] not provide cause for the proportionate penalties challenges” advanced by
the petitioners’ successive postconviction petitions. Id.
¶ 46 In the present case, the State asserts that under the holdings in Clark and Moore the
petitioner cannot establish cause for his failure to raise his proportionate penalties argument earlier.
The petitioner responds that the State’s argument is a red herring because he did not once cite to
the unavailability of Miller or the Miller line of cases in his brief as cause for his failure to raise
his proportionate penalties argument earlier. Instead, he points to Dr. Garbarino’s expert report as
newly discovered evidence, which was unavailable to him during his initial postconviction
proceedings. The petitioner argues that Dr. Garbarino’s report provides exactly the kind of detailed
factual analysis of the petitioner’s childhood and traumatic upbringing in the context of recent
neuroscientific discoveries regarding the development of young adult brains that our supreme court
has signaled is necessary for young adult offenders to raise proportionate penalties claims. See
House, 2021 IL 125124, ¶ 29. The petitioner further asserts that because Dr. Garbarino’s analysis
of his circumstances primarily relies on neuroscientific research published in the last decade, the
majority of which simply did not exist at the time of his sentencing (in 2008), or when he filed his
initial and amended postconviction petition (in 2013 and 2016 respectively), even though he was
aware of his own youth and life circumstances, without Dr. Garbarino’s expert opinion applying
that “modern research” to his particular development, he could not have successfully raised a
youth-based proportionate penalties claim in any earlier proceeding. For the following reasons, we
disagree.
¶ 47 In People v. French, 2022 IL App (1st) 220122, which the State inexplicably fails to cite
in its brief, we addressed this same issue and found that a similar individualized expert report by
Dr. Garbarino was insufficient to state cause. In that case, which was decided prior to Clark and
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Moore, the 20-year-old petitioner argued “that he established cause ‘because his claim [wa]s based
on recent, substantive developments in the law, as well as newly obtained factual support for the
claim, which could not have been brought in his first post-conviction petition.’ ” Id. ¶ 13. In
support, just as here, the petitioner “referenced a report from Dr. James Garbarino detailing [his]
‘developmental pathway from childhood to adulthood,’ ” which he received after filing his initial
postconviction petition. Id. ¶ 9. Just as here, the court in French found that the petitioner had relied
on “evolving scientific research regarding young adult offenders, which in turn led [him] to seek
the report from Dr. Garbarino to substantiate his claim.” Id. ¶ 25.
¶ 48 The French court held that “[b]ased on Dorsey’s clear holding” the petitioner could not
establish cause for his failure to raise his proportionate penalties claim in his initial postconviction
petition. Id. ¶ 25. In doing so, the court considered the distinction between a “lack of supporting
caselaw” and a “lack of evidentiary support,” and rejected that distinction as a basis for finding
“cause.” Id. ¶ 33. The court explained that “if the caselaw underpinning [the petitioner’s] claim
does not provide cause, then [the petitioner’s] delayed investigation of the claim based on the lack
of the caselaw cannot provide cause either.” Id. The court concluded that “because the Illinois
proportionate penalties clause existed long before [the petitioner] filed his initial postconviction
petition” he could have “summon[ed] the evidentiary support” and “raised the claim at that time.”
Id. ¶¶ 33-34.
¶ 49 We agree with the rationale of French and its interpretation of Dorsey and see no way to
depart from it. Clark and Moore both 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
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interpretation by clarifying that Thompson and Harris opened the door only wide enough to
accommodate emerging adult proportionate penalties claims 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 an initial postconviction petition). As such, the petitioner here cannot establish cause
for failing to challenge the 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).
¶ 50 The petitioner’s reliance on People v. Blalock, 2022 IL 126682 does not lead us to a
different result. 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 explained that cause is satisfied by “a showing
that the factual or legal basis for a claim was not reasonably available” to the petitioner. (Internal
quotation marks omitted.) Id. ¶ 39. The court then held that because “evidence of a pattern and
practice of police misconduct is part of the factual basis of a coerced confession claim”
corroborating evidence “external to the defense” is necessary to effectively raise this issue.
(Internal quotation marks omitted.) Id. ¶¶ 44-45. Moreover, the insidious nature of police abuse
makes gathering this type of evidence particularly difficult. Id. (quoting People v. Brandon, 2021
IL App (1st) 172411, ¶ 57 (“This evidence pertains to the conduct of the State’s own agents, toward
21 No. 1-24-0953
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 a coerced confession claim. Id.
¶ 51 Conversely, “such concerns are absent in a sentencing challenge based on the petitioner’s
age.” People v. Robinson, 2025 IL App (1st) 231419-U. “The factual basis for such a challenge is
that fully developed adults are different from young adults who are still developing.” People v.
Searles, 2024 IL App (1st) 210043-U, ¶ 17. As our supreme court has continued to reiterate, this
distinction is a fact that Illinois courts have long recognized. See Clark, 2023 IL 127273, ¶¶ 92-
94; Moore, 2023 IL 126461, ¶ 42; see also 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’ ”); 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, he had “the essential legal tools” necessary to make that argument in his initial
postconviction petition. Moore, 2023 IL 126461, ¶ 42; Clark, 2023 IL 127273, ¶ 93; Dorsey, 2021
IL 123010, ¶ 73.
¶ 52 In coming to this conclusion, we emphasize that we are far from indifferent to the
petitioner’s predicament, and recognize that despite all his efforts in obtaining Dr. Garbarino’s
expert report, which is exactly the kind of evidence our supreme court has signaled is necessary to
22 No. 1-24-0953
support an as-applied youth-based proportionate penalties challenge (see House, 2021 IL 125124,
¶ 29), the petitioner has no meaningful path to demonstrate his rehabilitative potential. As such,
the earliest he can be released from prison by way of parole is 18 years from now when he will be
56 years old, 3 something that is unlikely to happen because of his present and very serious medical
condition. 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. Until our supreme relaxes the cause requirement or our legislature abolishes cause altogether, 4
we are bound to follow the narrow dictates of our supreme court.
¶ 53 Because we find that the petitioner has failed to establish cause, we need not determine
whether he made the requisite showing of prejudice. See People v. Guerrero, 2012 IL 112020, ¶¶
15, 22 (affirming the circuit court’s denial of a motion for leave to file a successive petition where
the petitioner did not establish cause without addressing prejudice because “both element or prongs
of the cause-and-prejudice test must be satisfied in order for the [petitioner] to prevail.”).
¶ 54 III. CONCLUSION
¶ 55 For these reasons, we affirm the circuit court’s denial of the petitioner’s request for leave
3 The IDOC website, of which we may take judicial notice, currently lists the petitioner’s projected parole date as
July 6, 2043, and his projected discharge date as July 6, 2046. 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). 4 We note that on April 30, 2025, the Illinois senate voted to pass Senate Bill 0248 (SB 0248) (104th Ill. Gen.
Assembly Senate Bill 0248, 2025 Sess.), which proposes to amend the Code of Criminal Procedure of 1963 to
eliminate the cause element of the cause-and-prejudice test for persons under 21 years old, who seek leave to file a
successive postconviction petition claiming violations of the Illinois proportionate penalties clause. This proposed
legislation has passed from the Illinois Senate to the Illinois House. As House Bill 1858 (HB 1858) (104th Ill. Gen.
Assembly House Bill 1858, 2025 Sess. 2025), it has currently been referred to the House Rules Committee.
23 No. 1-24-0953
to file his successive postconviction petition.
¶ 56 Affirmed.