People v. Schultz

2022 IL App (1st) 200919-U

• Court: Appellate Court of Illinois
• Decided: September 19, 2022
• Docket: 1-20-0919
• Status: Unpublished

Opinion

2022 IL App (1st) 200919-U No. 1-20-0919 Order filed September 19, 2022

First Division

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 DISTRICT ___________________________________________________________________________ ) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) No. 10 CR 4302(02) v. ) ) The Honorable ROBERT SCHULTZ, ) William G. Gamboney, ) Judge, presiding. Defendant-Appellant. )

JUSTICE HYMAN delivered the judgment of the court. Justice Coghlan concurred in the judgment. Justice Pucinski specially concurred, joined by Justice Hyman.

ORDER

¶1 Held: Trial court judgment summarily dismissing Schultz’s post-conviction petition affirmed.

¶2 Petitioner, Robert Schultz, pled guilty to first degree murder and accepted a 25-year prison

sentence. At the time of the offense, Schultz was 17 years old. He did not file post-plea motions

or pursue a direct appeal. Eventually, Schultz filed a pro se post-conviction petition contending

that he stated a gist of a constitutional claim that, because he must serve 100% of his sentence, the

Truth-in-Sentencing Act is unconstitutional as applied to him. No. 1-20-0919

¶3 We affirm. Requiring a juvenile offender to serve 100% of a nonlife sentence for murder

does not violate Miller v. Alabama, 567 U.S. 460 (2012) or the eighth amendment, and Schultz’s

sentence falls within the 40-year threshold of People v. Buffer, 2019 IL 122327.

¶4 Background

¶5 The State charged Robert Schultz with 68 counts of first-degree murder and two counts of

aggravated discharge of a firearm in the death of Carlton Ewing. The State amended Count two to

remove the firearm allegation that would have mandated an additional 25-year sentence. That same

day, Schultz agreed to enter a negotiated guilty plea to the amended count of first-degree murder.

¶6 The plea’s factual basis established that, on August 17, 2009, 17-year-old Schultz used a

dangerous weapon to kill Ewing. Schultz was a recruit for the Latin Kings. Jesus Zuniga, whom

Schultz had known for three years, informed Schultz that August 17th was a “Hood Day.” On

Hood Day, Latin Kings members would look for rival gang members. The plan called for Zuniga

to alert Schultz to suspect members of a rival gang, Gangster Disciple Killers (GDK) and for

Schultz to come out of the gangway and use the weapon Zuniga provided. Schultz was in the

gangway when he heard someone say, “GDK.” Schultz came out of the gangway and used the

weapon, killing Ewing.

¶7 Before Schultz entered his plea, he waived his right to trial and a pre-sentence investigation

report. The trial court informed Schultz that the sentencing range for first degree murder was 20

to 60 years, served at 100 percent, including three years of mandatory supervised release.

¶8 After admonishing Shultz, the trial court found that Schultz understood the nature of the

charges against him and possible penalties, made the plea freely and voluntarily, and a factual

basis existed for the plea. The court accepted Schultz’s plea and entered a judgment of guilty.

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¶9 Based on the parties’ agreement, the trial court sentenced Schultz to 25 years in prison with

three years of mandatory supervised release. Schultz did not move to withdraw his plea and did

not take a direct appeal.

¶ 10 Eight years later, Schultz filed a pro se petition for post-conviction relief. Schultz alleged

his sentence violated the United States and Illinois constitutions for two reasons: (i) the provision

of the Truth-In-Sentencing Act (730 ILCH 5/3-6-3(a)(2)(i)) requires him to serve his complete

sentence without the opportunity to earn good conduct credit, and (ii) the trial court did not

consider trauma experienced in his youth and his potential for rehabilitation.

¶ 11 In a written order, the trial court summarily dismissed the petition as “frivolous and

patently without merit.” The court found that the Eighth Amendment protections stemming from

Miller inapplicable as Schultz received a discretionary 25-year sentence that did not amount to de

facto life without the possibility of parole and fell below the line established in Buffer. Moreover,

the trial court found that the provision of the Truth-In-Sentencing Act requiring a defendant found

guilty of first-degree murder to serve 100 percent of the sentence repeatedly had been held

constitutional.

¶ 12 Analysis

¶ 13 Schultz argues the trial court erred when it dismissed his post-conviction petition at the

first stage of proceedings, which raised constitutional challenges to his 25-year sentence for first-

degree murder. Schultz alleges that although the trial court rejected his argument that his sentence

violated the eighth amendment, the court did not consider that the truth-in-sentencing scheme

violated the proportionate penalties clause as applied to him. Specifically, Schultz contends that

section 6-3(a)(2)(1) of the Illinois Code of Corrections, requiring him to serve 100 percent of his

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sentence, violates the proportionate penalties clause because the trial court did not consider

Schultz’s youth and potential for rehabilitation.

¶ 14 Post-Conviction Legal Principles and Standard of Review

¶ 15 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.) provides a method for

defendants to assert that their convictions resulted from a substantial denial of their rights under

the United States Constitution, Illinois Constitution, or both. People v. Hodges, 234 Ill. 2d 1,9

(2009). A post-conviction proceeding has three stages. People v. Harris, 224 Ill. 2d 115, 125

(2007). At the first stage, the court reviews the post-conviction petition and may dismiss the

petition only if the court determines it either is frivolous or patently without merit. People v.

Edwards, 197 Ill. 2d 239, 244 (2001); 725 ILCS 5/122-2.1(a)(2) (West 2018). A frivolous or

patently without merit petition “has no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d

at 11-12.

¶ 16 To survive dismissal, a petition must present a “gist of a constitutional claim.” People v.

Gaultney, 174 Ill. 2d. 410, 418 (1996), citing People v. Porter, 122 Ill. 2d 64, 74 (1988). Construed

liberally, the petition must present a limited amount of detail, and the defendant does not need to

set out the claim in its entirety. Edwards, 197 Ill. 2d at 244. We review a court’s decision to dismiss

a post-conviction petition de novo. Id. at 247.

¶ 17 Relevant Juvenile Legal Principles

¶ 18 The eighth amendment prohibits “cruel and unusual punishments” (U.S. Const., amend

VIII) and applies to states through the fourteenth amendment (U.S Const., amend XIV). Roper v.

Simmons, 543 U.S. 551, 560 (2005). Not only does this prohibition include inherently barbaric

penalties but also disproportionate penalties. People v. Lusby, 2020 IL 12406, ¶ 32 (citing Graham

v. Florida, 560 U.S. 48, 59 (2010). To comply with the eighth amendment, sentences must be

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“graduated and proportioned.” Roper, 543 U.S. at 560. A genuine risk of disproportionate

punishment exists when the offender is a juvenile and the offense a serious one. People v. Holman,

2017 IL 120655, ¶ 33.

¶ 19 Beginning in 2005, the United States Supreme Court acknowledged that juvenile offenders

are constitutionally different from adult defendants regarding sentencing. People v. Jones, 2021

IL 126432, ¶43. In Roper, Graham, and Miller, the Court concluded that youth matters in

sentencing. Roper held that the eighth amendment bars capital punishment for juvenile offenders.

Roper, 543 U.S. at 568. Graham held that a life sentence without the possibility of parole for

juvenile offenders convicted of non-homicide crimes violates the eighth amendment. Graham, 560

U.S. at 83. And Miller extended this constitutional ban and held that the eighth amendment

prohibits mandatory life sentences for juveniles who commit homicide. Miller v. Alabama, 567

U.S. 460, 489 (2012). Recognizing that “children are constitutionally different from adults” (id. at

471), a court must have the opportunity to consider mitigating circumstances before imposing a

life sentence without the possibility of parole on a juvenile offender. Id. at 476, 489. The court

later held Miller applies retroactively. Montgomery v. Louisiana, 577 U.S. 190 (2016). Recently,

in Jones v. Mississippi, the United States Supreme Court reaffirmed that before imposing a

discretionary life term on a juvenile offender, the court must consider the Miller factors. Jones,

2021 IL 126432, ¶ 43 (citing Jones v. Mississippi, 593 U.S. ___ (2021)).

¶ 20 Given these cases, the Illinois Supreme Court has developed its own evolving

jurisprudence regarding Miller-related sentencing claims. In Reyes, our supreme court expanded

Miller’s application to include a de facto life sentence. People v. Reyes, 2016 IL 119271, ¶ 9. The

Reyes court, “that a juvenile may not be sentenced to a mandatory, unsurvivable prison term

without first considering in mitigation his youth, immaturity, and potential for rehabilitation.” Id.

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Holman concluded that mandatory or discretionary life sentences imposed on juvenile offenders

violate the eighth amendment and are disproportionate unless the sentencer considers youth and

its attendant characteristics. Holman, 2017 IL 120655, ¶ 40. Accordingly, the Holman court held

that Miller applies to discretionary sentences of life without parole for juvenile offenders. Id. In

Buffer, our supreme court concluded a sentence that exceeds 40 years constitutes a de facto life

sentence for juvenile defendants and violates the eighth amendment. People v. Buffer, 2019 IL

122327, ¶¶ 40-41. Under Buffer, a prison sentence of 40 years or less does not constitute a de facto

life sentence in violation of the eighth amendment because it provides juvenile offenders a

meaningful opportunity to obtain release based on maturity and rehabilitation. Id. ¶ 41.

¶ 21 Schultz’s Claims Were Not Waived by His Guilty Plea

¶ 22 Schultz’s petition alleges he was subject to an unfair proceeding under Miller, where the

court did not consider his youth and rehabilitative potential at sentencing. The State argues

Schultz’s guilty plea waived Miller claims. While the trial court’s order and Schultz’s brief

preceded the supreme court’s decision in People v. Jones, 2021 IL 126432, the State contends

Jones is dispositive. We find it distinguishable.

¶ 23 In Jones, the defendant, then 16 years old, was charged with multiple offenses, including

first-degree murder. Jones, Id. ¶ 3. In 2000, the defendant pled guilty to first-degree murder and

was sentenced to 50 years in prison. Id. ¶ 4-5. The trial judge found the defendant made the plea

knowingly and voluntarily, Id. ¶ 5. The defendant waived the preparation of a PSI. Id.

¶ 24 The defendant later sought leave to file a successive post-conviction petition, arguing that

his guilty plea and judgment predated Miller and the mandatory statutory sentencing scheme that

applied to him was void as to juveniles. Id. ¶7. The trial court denied the motion, and the appellate

court affirmed. Id. ¶¶ 7-10.

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¶ 25 Before the supreme court, the defendant argued that the sentencing scheme at the time of

his guilty plea violated the eighth amendment under Miller because had he gone to trial, he would

have been subject to a mandatory life sentence if convicted. Id. ¶ 15. And because the trial court

had to use discretion when deciding whether to impose a life sentence, a statutory scheme that

precluded a trial court from exercising discretion was unconstitutional as it applied to him. Id.

While defendant conceded he was not sentenced under the statutory scheme, he maintained “that

when he entered into the plea agreement with the State, he did not anticipate that the 50-year prison

term stipulated in it would later be declared to be a de facto life sentence that required the trial

court’s use of discretion and consideration of his youthful characteristics and rehabilitative

potential.” Id. ¶ 19.

¶ 26 Our supreme court rejected the defendant’s argument and affirmed the appellate court’s

judgment. Id. ¶¶ 1, 19. The Jones court noted that all parties understood the applicable law at the

time of the plea. Thus, the “crux” of the defendant’s claim concerns the inability to predict that the

United States Supreme Court would change the criteria for reviewing the constitutionality of the

applicable law. Id. ¶ 19.

¶ 27 The Jones court observed that a voluntarily guilty plea waives “all non-jurisdictional errors

or irregulates, including constitutional ones.” (Internal quotation marks removed and emphasis in

the original.) Id. ¶ 20. A guilty plea is “a bet on the future,” which “permits a defendant to gain a

present benefit in return for the risk that he [or she] may have to [forgo] future favorable legal

developments. Id. ¶ 21 (quoting Dingle v. Stevenson, 840 F.3d 171, 171 (4th Cir. 2016).

¶ 28 The supreme court concluded that because the defendant in Jones entered into a guilty plea

“‘to avoid a potential, not certain, sentence,’” his “knowing and voluntary guilty plea waived”

constitutional challenges based on later changes in relevant law. Id. ¶ 26.

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¶ 29 Schultz does not challenge a hypothetical sentence but falls within the exception noted in

Jones that “if the statutory sentencing scheme had actually been applied in this case to set [Jones’s]

life sentence, [Jones’s] argument would have presented a claim that we could have reviewed on

its legal merits.” Id. ¶ 18.

¶ 30 Simply put, unlike in Jones, Schultz sought relief based on a sentencing scheme that

applied to him, which does not implicate Jones’s “bet-on-the-future” concerns. So, Jones does not

preclude this court from reviewing the merits of Schultz’s claim.

¶ 31 Petitioner Did Not Forfeit Proportionate Penalties Claim

¶ 32 Schultz argues his petition establishes a gist of a constitutional claim for an as-applied

challenge that his sentence violates the proportionate penalties clause of the Illinois Constitution.

He asserts that section (a)(2)(i) of the truth-in-sentencing statute violates the Illinois proportionate

penalties clause because his youth was not considered at sentencing.

¶ 33 The State argues Schultz forfeited this claim by not having raised it in his petition. The

State also contends Schultz’s petition alleged the truth-in-sentencing statute was unconstitutional

under the eighth amendment but fails to assert that the sentence violated the proportionate penalties

clause.

¶ 34 To survive dismissal at the first stage, a petition must present the gist of a constitutional

claim. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). A defendant does not need to make legal

arguments or cite legal authority in the petition, just present a limited amount of detail. Id. This is

a low threshold. Id. A claim not raised in the petition cannot be argued for the first time on appeal.

Jones, 213 Ill. 2d 498 at 505. For this reason, we examine the petition to determine whether

Schultz’s appellate arguments draw on a claim presented to the trial court.

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¶ 35 In his petition, Schultz alleged that (i) at the time of the offense, he was 17 years old, and

(ii) he pled guilty to first degree murder and was sentenced to serve 25 years at 100%. He argued,

“The Truth-In-Sentencing statute which [a]ffects our children is cruel, against the public and

family interest, ignores the decency of a civilize[d] society and the opportunity for a young man

like the petitioner to rehabilitate, making it unconstitutional and in violation of the Eighth and

Fourteenth Amendments of both the Illinois and United States Constitution.” He also argued that

“[t]he typical safeguards under both the Eighth and Fourteenth Amendments of the United State

Constitution must not be ignored when considering the sentences against crimes committed by

young men who suffered from traumatic events prior to their convictions.”

¶ 36 Schultz’s petition asserted that the truth-in-sentencing statute violated both the Illinois

Constitution and the United States Constitution, as applied to his sentence. We acknowledge the

State’s point that Schultz only cited the Eighth and Fourteenth Amendments to the United States

Constitution, amendments our constitution does not have. But, when discerning the scope of a

claim in a pro se post-conviction petition at the first stage, we construe it liberally in the petitioner’s

favor. E.g., People v. Coleman, 183 Ill. 2d 366, 382 (1998). By referencing the Eighth

Amendment—through which we protect the rights of juveniles in criminal sentencing under the

federal constitution—in the same sentence as the Illinois constitution, we conclude Schultz

intended to invoke the similar protections we afford juveniles under the proportionate penalties

clause. At this stage, liberally construing the petition as we must, we find that Schultz has not

forfeited his proportionate penalties clause claim.

¶ 37 Truth-In-Sentencing Statute

¶ 38 Schultz concedes his 25-year sentence with no possibility of parole is not a life sentence.

Instead, Schultz argues the truth-in-sentencing statute (730 ILCS 5/3-6-3(a)(2)(i) (West 2020)), is

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unconstitutional as applied to him because it does not allow him to demonstrate rehabilitative

potential and obtain release before the expiration of his sentence.

¶ 39 As stated, the United States Supreme Court in Miller held that mandatory life sentences

without the possibility of parole for juvenile offenders violate the eighth amendment. Miller, 567

U.S. at 479. Our supreme court applied Miller to de facto life sentences (Reyes, 2016 IL 119271,

¶ 10) and discretionary life sentences (Holman, 2017 IL 120655, ¶ 40). Our supreme court also

determined that a sentence exceeding 40 years presents a de facto life sentence. Buffer, 2019 IL

122327, ¶ 40. More recently, in People v. Dorsey, our supreme court held that a juvenile

defendant’s opportunity for release after spending 40 or fewer years is the only relevant

consideration, whether or not the trial court considers it. 2021 IL 123010, ¶ 64.

¶ 40 Schultz’s 25-year sentence is not unconstitutional under current precedent – he did not

receive a mandatory life sentence as prohibited by Miller, nor a discretionary de facto life sentence

defined by Buffer. Even if served at 100%, Schultz has the opportunity for release before serving

40 years.

¶ 41 Schultz primarily relies on People v. Othman, 2019 IL App (1st) 150823 (Othman I), where

we found the challenged statute unconstitutional. But our Supreme Court entered a supervisory

order vacating the portions of Othman I that addressed the defendant’s sentence. People v. Othman,

2020 IL App (1st) 150823-B, ¶¶3-5 (Othman II). Nevertheless, Schultz argues the reasoning in

Othman I was correct and should be applied. While we appreciate Othman I’s discussion of

juvenile sentencing principles, we disagree.

¶ 42 In Othman I, the 17-year-old defendant was sentenced to 55 years for first degree murder.

Id. ¶ 1. On appeal, the court addressed whether the defendant’s sentence was unconstitutional

under Miller and whether the Truth-in-Sentencing Act was unconstitutional as applied to juvenile

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offenders. Id. ¶ 77. Because “every major case on the issue of juvenile justice strongly condemns

sentencing policies that prevent a juvenile from seeking to demonstrate rehabilitation and parole

at some point during his prison sentence.,” the Othman I court found that the Truth-in-Sentencing

Act was unconstitutional. Id. ¶ 92. While Othman I expresses great hopes about rehabilitation and

sentencing juveniles, it is not the current law.

¶ 43 As the State points out, the appellate court rejected similar arguments about truth-in-

sentencing before and after Othman I. See People v. Pacheco, 2013 IL App (4th) 110409, ¶ 60 and

People v. Banks, 2015 IL App (1st) 130985, ¶ 22; see also People v. Johnson, 2020 IL App (2d)

170646, ¶¶ 7-15 (“[S]ince the decision in Miller, courts in this state have repeatedly rejected

similar as-applied challenges regarding the constitutionality of section 3-6-3(a)(2)(i) . . .”) and

People v. Brakes, 2021 IL App (1st) 181737, ¶¶ 39-44.

¶ 44 In Brakes, we found the reasoning in Othman I unpersuasive even if it survived our

supreme court’s supervisory order. Brakes, 2021 IL App (1st) 181737, ¶ 41. We noted the analysis

in Othman I was dicta because the court found the defendant’s 55-year sentence substantively

unconstitutional under the proportionate penalties clause. Id. (citing Othman I, 2019 IL App (1st)

150823, ¶¶ 77-86. Thus, the court’s further analysis of the constitutionality of the truth-in-

sentencing statute was not necessary to its judgment. Id. And we noted that we agree with the court

in Pacheco that the remedy for a juvenile defendant who receives a de facto life sentence is a

challenge to the substantive sentence, not the statute requiring the defendant to serve 100%. Id.

¶ 45 We have nothing but sympathy for legal framework Othman I envisioned. For example,

Othman I presciently described the legislative failure to account for the unique nature of juvenile

offenders when drafting and passing the Truth In Sentencing Act. See Othman I, 2019 IL App (1st)

150823, ¶ 108. The court also correctly noted the disjuncture between truth in sentencing and the

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United States Supreme Court’s pronouncements on eighth amendment protections for juveniles.

Id. (Quoting Graham v. Florida, 560 U.S. 48, 75 (2010) (“By denying [juvenile defendants] the

right to reenter the community, the State makes an irrevocable judgment about that person’s value

and place in society.”). We think Othman I’s vision for juvenile sentencing—prohibiting juveniles

from ever being subject to 100% sentences—is a lofty goal. Our General Assembly has largely

made good on that goal for juvenile offenders convicted of non-homicide offenses after June 1,

2019, providing them with mandatory parole review after serving 10 or 20 years of their sentence,

depending on the offense of conviction. See 730 ILCS 5/5-4.5-115(b) (West 2020).

¶ 46 Regardless of our view of the ideal manner to conduct juvenile sentencing, we must defer

to our supreme court. And, as we observed in Brakes, Dorsey effectively overruled the reasoning

in Othman I. Brakes, 2021 IL App (1st) 181737, ¶ 42. We reasoned that Dorsey shifts the focus

from the sentence imposed to the actual time a defendant must serve. Id. “In other words, a juvenile

defendant’s sentence (whether served at 100%, 85%, or 50%) may be subject to a constitutional

challenge only if it will keep the juvenile in prison for more than 40 years. Id. (citing Dorsey, 2021

IL 123010, ¶ 64 (relying on Buffer, 2019 IL 122327)). Dorsey emphasized Buffer’s 40-year line

hinged on a sentence lacking an “opportunity to demonstrate rehabilitation and obtain release short

of serving more than 40 years in prison.” Dorsey, 2021 IL 123010, ¶ 64. We cannot read Dorsey

any other way than to say that a juvenile sentenced before June 1, 2019, who will serve an actual-

time portion of his or her sentence under 40 years, may not avail themselves of Miller’s

constitutional protections. Schultz’s 25-year sentence served at 100% does not violate the eighth

amendment since it dwells beneath Buffer’s ceiling.

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¶ 47 For clarity, we also find that Schultz’s proportionate penalties clause does not warrant

further proceedings. At oral argument, the State noted that Miller and Dorsey aside, the question

becomes whether Schultz’s sentence violates the proportionate penalties clause on its own.

¶ 48 The proportionate penalties clause provides that “penalties shall be determined both

according to the seriousness of the offense and with the objective of resorting the offender to useful

citizenship.” Ill. Const. 1970, art. 1 § 11. And a violation may be shown if the penalty is “cruel,

degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of

the community.” People v. Moss, 206 Ill. 2d 503, 522 (2003). Schultz does not offer an argument

aside from Miller that his sentence violates the proportionate penalties claim.

¶ 49 Even so, as we explained in Brakes, bound by Dorsey, the question is not whether a

defendant must serve his or her sentence at 100% (or 85% or 50%); instead, we look only to

whether the actual time served will amount to a de facto life sentence. See Brakes, 2021 IL App

(1st) 181737, ¶ 44 (noting that if the defendant’s sentence violates the proportionate penalties

clause, it is because the term of years is substantively unreasonable). Schultz is serving a 25-year

sentence, and, as we concluded, concerning his Eighth Amendment claim, his term of years is not

a de facto life sentence no matter how much of the sentence Schultz serves.

¶ 50 Affirmed.

¶ 51 JUSTICE PUCINSKI, specially concurring:

¶ 52 The majority points out that the General Assembly has provided that juvenile offenders

convicted on or after June 1, 2019, are now entitled to mandatory parole review after serving 10

or 20 years of their sentence, depending on the offense of conviction. See 730 ILCS 5/5-4.5-115(b)

(West 2020). But that leaves out a specific number of juvenile offenders who were sentenced

before June 1, 2019. I understand that the Legislature can create different classes of offenses and

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offenders, but to pin that difference on when sentencing occurred is, to me, an unjust and

unjustifiable system. If the Legislature believes that juvenile offenders should have the right to

demonstrate their rehabilitation – a hallmark of the Illinois system of corrections since its earliest

days – then that right should be available to every juvenile defendant. That is not so say that every

juvenile defendant will be able to demonstrate rehabilitation; the parole board has complete

oversight in that matter and will carefully consider every defendant on a case-by-case basis; but

the right to petition for early release based on rehabilitation should not be denied to one group of

juvenile offenders just because they were sentenced before the Legislature made the political

decision not to make 5-4.5-115(b) retroactive.

¶ 53 JUSTICE HYMAN joins this special concurrence.

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