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).
2023 IL App (3d) 220487-U
Order filed December 7, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) Bureau County, Illinois Plaintiff-Appellant, ) ) Appeal No. 3-22-0487 v. ) Circuit No. 90-CF-67 ) BRYAN D. CASE, ) Honorable ) James A. Andreoni, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE ALBRECHT delivered the judgment of the court. Justices McDade and Brennan concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court erred in granting defendant’s amended postconviction petition.
¶2 The State appeals the Bureau County circuit court’s order granting the amended
postconviction petition filed by defendant, Bryan D. Case. The State argues the court erred in
granting the petition because it was unverified, contained unnotarized exhibits, and was untimely
filed. Further, the State contends that the record indicates defendant’s original sentencing hearing was compliant with the requirements of Miller v. Alabama, 567 U.S. 460, 477-81 (2012). We
reverse and remand.
¶3 I. BACKGROUND
¶4 The facts in this case have been set forth in this court’s opinion on defendant’s direct
appeal. People v. Case, 246 Ill. App. 3d 566, 567-76 (1993). Only a short summary of the facts
relevant to this appeal is necessary here. Following a jury trial, defendant, a 17-year-old, was
convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, ¶ 9-1(a)(2)). The evidence at trial
established that defendant’s 15-year-old cousin was found dead on her bedroom floor, having been
stabbed 20 times in the neck and upper body. Defendant had access to the victim’s home and
knowledge of its layout. Defendant’s fingerprints were found on items that had been in the victim’s
purse. Several witnesses placed defendant near the scene at the time of the murder. One witness
described a man fitting defendant’s description running in the area toward a creek. Defendant had
cuts on his finger that could have occurred at the time of the murder. Defendant knew details of
the victim’s wounds shortly after her discovery.
¶5 Defendant was interviewed by police on numerous occasions. He told police that he never
touched any items in the victim’s purse. He never admitted to the murder. Defendant told
inconsistent stories about his whereabouts on the night of the murder and how he received the cuts
on his finger. He admitted to going into the creek and splashing water on himself. Defendant
testified in his own defense. Eight knives were admitted into evidence. Three of these knives could
have caused the victim’s wounds. Two were found in a field near the murder scene and the third
was found in a cemetery near a creek. Defendant had been seen in both areas on the night of the
murder.
2 ¶6 During the sentencing hearing, the court considered defendant’s 534-page presentence
investigation report (PSI) that revealed: (1) the absence of defendant’s biological father;
(2) defendant’s positive relationship with his mother and siblings; (3) defendant’s average
intellectual abilities and an intelligence quotient of 100; (4) defendant’s psychosexual
immaturities, strong dependency needs, and possible attention deficit disorder; (5) defendant’s
difficulties in dealing with authority and his impulsive, aggressive behaviors; (6) school records
showing defendant’s numerous school suspensions for his noncompliance and aggressive
behavior; (7) defendant’s alcohol use beginning at the age of 13; (8) defendant’s failure to
complete substance abuse treatment; (9) defendant’s lack of prior adjudications or convictions;
and (10) defendant’s history of violent behavior that did not ultimately result in criminal charges.
The court also considered the testimony of two of defendant’s classmates. One classmate testified
that defendant had thrown him into the side of a bus and detached his retina. The other student
testified that defendant had held a knife to her neck and threatened her. The court considered the
facts of the case, victim impact statements, and defendant’s statement in allocution.
¶7 The court considered the arguments of the parties, including defense counsel’s arguments
that the court had sentenced a man “substantially older than [defendant] was” to 40 years’
imprisonment. Further, defense counsel argued that the conduct of defendant when he was younger
was not relevant where he had a lack of contact with the criminal justice system and had shown
growth when “he moved to Chicago with his sister and *** appear[ed] to be living a reasonably
structured, reasonably normal existence at that time.” Defense counsel also highlighted
defendant’s positive recent work history.
¶8 In rendering its sentence, the court discussed the definition of brutal and heinous and noted
that such a finding was not mandatory but within its discretion. The court expressed doubt as to
3 whether a psychologist could provide treatment and rehabilitate defendant. Emphasizing the
lengthy history of violence from a young age and the significant number of stab wounds to the
victim, the court “[saw] no alternative in this case really, under these facts, for [it] to exercise [its]
discretion in favor of sentencing the defendant, for the protection of the public, to a term of natural
life in prison.”
¶9 On direct appeal, defendant argued, inter alia, that his sentence was excessive because the
court failed to give “adequate consideration [of] mitigating factors such as his youth, his drug and
alcohol use, his lack of criminal history, his unhappy family background, and his positive
employment history.” Id. at 578. We affirmed defendant’s conviction and sentence.
¶ 10 On March 4, 2021, defendant filed, through counsel, an unverified postconviction petition
alleging that his sentence was excessive and violated both his eighth amendment rights as well as
his Illinois constitutional rights under the proportionate penalties clause. Defendant cited Miller
and its progeny in support of these claims and contended that his original sentencing hearing failed
to consider his youth and its attendant characteristics as required. The petition was advanced to the
second stage of proceedings. The State filed a motion to dismiss the petition on August 17, 2021,
arguing that defendant’s original sentencing hearing was constitutionally compliant. In September
2021, the court noted that the petition was unverified and, for the sake of expediency, granted leave
to amend the petition prior to any motion being made. On January 22, 2022, defendant filed an
amended postconviction petition which remained unverified. The amended petition acknowledged
that it could be considered untimely but the new substantive rule announced by Miller established
cause for its untimeliness. Subsequently, the State filed an amended motion to dismiss the petition
which failed to argue that the amended petition should be dismissed for lack of verification or
untimeliness.
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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).
2023 IL App (3d) 220487-U
Order filed December 7, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) Bureau County, Illinois Plaintiff-Appellant, ) ) Appeal No. 3-22-0487 v. ) Circuit No. 90-CF-67 ) BRYAN D. CASE, ) Honorable ) James A. Andreoni, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE ALBRECHT delivered the judgment of the court. Justices McDade and Brennan concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court erred in granting defendant’s amended postconviction petition.
¶2 The State appeals the Bureau County circuit court’s order granting the amended
postconviction petition filed by defendant, Bryan D. Case. The State argues the court erred in
granting the petition because it was unverified, contained unnotarized exhibits, and was untimely
filed. Further, the State contends that the record indicates defendant’s original sentencing hearing was compliant with the requirements of Miller v. Alabama, 567 U.S. 460, 477-81 (2012). We
reverse and remand.
¶3 I. BACKGROUND
¶4 The facts in this case have been set forth in this court’s opinion on defendant’s direct
appeal. People v. Case, 246 Ill. App. 3d 566, 567-76 (1993). Only a short summary of the facts
relevant to this appeal is necessary here. Following a jury trial, defendant, a 17-year-old, was
convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, ¶ 9-1(a)(2)). The evidence at trial
established that defendant’s 15-year-old cousin was found dead on her bedroom floor, having been
stabbed 20 times in the neck and upper body. Defendant had access to the victim’s home and
knowledge of its layout. Defendant’s fingerprints were found on items that had been in the victim’s
purse. Several witnesses placed defendant near the scene at the time of the murder. One witness
described a man fitting defendant’s description running in the area toward a creek. Defendant had
cuts on his finger that could have occurred at the time of the murder. Defendant knew details of
the victim’s wounds shortly after her discovery.
¶5 Defendant was interviewed by police on numerous occasions. He told police that he never
touched any items in the victim’s purse. He never admitted to the murder. Defendant told
inconsistent stories about his whereabouts on the night of the murder and how he received the cuts
on his finger. He admitted to going into the creek and splashing water on himself. Defendant
testified in his own defense. Eight knives were admitted into evidence. Three of these knives could
have caused the victim’s wounds. Two were found in a field near the murder scene and the third
was found in a cemetery near a creek. Defendant had been seen in both areas on the night of the
murder.
2 ¶6 During the sentencing hearing, the court considered defendant’s 534-page presentence
investigation report (PSI) that revealed: (1) the absence of defendant’s biological father;
(2) defendant’s positive relationship with his mother and siblings; (3) defendant’s average
intellectual abilities and an intelligence quotient of 100; (4) defendant’s psychosexual
immaturities, strong dependency needs, and possible attention deficit disorder; (5) defendant’s
difficulties in dealing with authority and his impulsive, aggressive behaviors; (6) school records
showing defendant’s numerous school suspensions for his noncompliance and aggressive
behavior; (7) defendant’s alcohol use beginning at the age of 13; (8) defendant’s failure to
complete substance abuse treatment; (9) defendant’s lack of prior adjudications or convictions;
and (10) defendant’s history of violent behavior that did not ultimately result in criminal charges.
The court also considered the testimony of two of defendant’s classmates. One classmate testified
that defendant had thrown him into the side of a bus and detached his retina. The other student
testified that defendant had held a knife to her neck and threatened her. The court considered the
facts of the case, victim impact statements, and defendant’s statement in allocution.
¶7 The court considered the arguments of the parties, including defense counsel’s arguments
that the court had sentenced a man “substantially older than [defendant] was” to 40 years’
imprisonment. Further, defense counsel argued that the conduct of defendant when he was younger
was not relevant where he had a lack of contact with the criminal justice system and had shown
growth when “he moved to Chicago with his sister and *** appear[ed] to be living a reasonably
structured, reasonably normal existence at that time.” Defense counsel also highlighted
defendant’s positive recent work history.
¶8 In rendering its sentence, the court discussed the definition of brutal and heinous and noted
that such a finding was not mandatory but within its discretion. The court expressed doubt as to
3 whether a psychologist could provide treatment and rehabilitate defendant. Emphasizing the
lengthy history of violence from a young age and the significant number of stab wounds to the
victim, the court “[saw] no alternative in this case really, under these facts, for [it] to exercise [its]
discretion in favor of sentencing the defendant, for the protection of the public, to a term of natural
life in prison.”
¶9 On direct appeal, defendant argued, inter alia, that his sentence was excessive because the
court failed to give “adequate consideration [of] mitigating factors such as his youth, his drug and
alcohol use, his lack of criminal history, his unhappy family background, and his positive
employment history.” Id. at 578. We affirmed defendant’s conviction and sentence.
¶ 10 On March 4, 2021, defendant filed, through counsel, an unverified postconviction petition
alleging that his sentence was excessive and violated both his eighth amendment rights as well as
his Illinois constitutional rights under the proportionate penalties clause. Defendant cited Miller
and its progeny in support of these claims and contended that his original sentencing hearing failed
to consider his youth and its attendant characteristics as required. The petition was advanced to the
second stage of proceedings. The State filed a motion to dismiss the petition on August 17, 2021,
arguing that defendant’s original sentencing hearing was constitutionally compliant. In September
2021, the court noted that the petition was unverified and, for the sake of expediency, granted leave
to amend the petition prior to any motion being made. On January 22, 2022, defendant filed an
amended postconviction petition which remained unverified. The amended petition acknowledged
that it could be considered untimely but the new substantive rule announced by Miller established
cause for its untimeliness. Subsequently, the State filed an amended motion to dismiss the petition
which failed to argue that the amended petition should be dismissed for lack of verification or
untimeliness.
4 ¶ 11 At the hearing on the State’s amended motion to dismiss, defendant argued that his eighth
and fourteenth amendment rights, as well as his Illinois constitutional rights, had been violated
when he was sentenced to natural life imprisonment without consideration of his youth and its
attendant characteristics as required by Miller. Defendant argued that while his youth may have
been considered, the record was devoid of any specific consideration of the characteristics of
youth. Defendant contended that People v. Buffer¸ 2019 IL 122327 required a specific finding of
incorrigibility. The State indicated that defendant was “entitled to have his case reviewed, and so
that’s why *** we’re here at the second stage in this petition for post-conviction—or second stage
in defendant’s post-conviction relief petition”; however, they contended that defendant’s petition
failed to make a substantial showing of a constitutional violation because his original sentencing
hearing was compliant with the requirements of Miller. The court denied the State’s motion.
¶ 12 Following a third-stage evidentiary hearing where no new evidence was presented, the
court granted defendant’s amended postconviction petition. It found that the sentencing court’s
focus had been on whether the murder had been committed in a brutal and heinous manner. It
found that, while several Miller factors did not apply to defendant, there was no indication that the
sentencing court had considered the immaturity of youth or how a youthful brain develops. The
court found that the record did not contain enough information to find the original sentencing
hearing had been constitutionally compliant under the eighth amendment. The court did not rule
on defendant’s proportionate penalties claim. The State appealed.
¶ 13 II. ANALYSIS
¶ 14 On appeal, the State contends that the court erred in granting defendant’s amended
postconviction petition where it was unverified, and defendant failed to show cause excusing the
5 untimely filing of the petition. Further, the State argues that the record rebuts any claim that the
sentencing court failed to adequately consider defendant’s youth and its attendant characteristics.
¶ 15 The Post-Conviction Hearing Act (Act) creates a procedure for imprisoned criminal
defendants to collaterally attack their convictions or sentences based on a substantial denial of their
constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2020). The Act provides for a three-stage
proceeding. People v. Pendleton, 223 Ill. 2d 458, 471-72 (2006). At the first stage of proceedings,
a petition must state only the gist of a constitutional claim. People v. Gaultney, 174 Ill. 2d 410,
418 (1996). A petition may be summarily dismissed if it is found to be frivolous or patently without
merit. People v. Moore, 2018 IL App (3d) 160271, ¶ 15. When a petition is advanced to the second
stage of proceedings, “the petitioner bears the burden of making a substantial showing of a
constitutional violation.” People v. Domagala, 2013 IL 113688, ¶ 35. At the second stage of
proceedings, the State may challenge any nonjurisdictional procedural defects including,
inter alia, timeliness and lack of verification. See People v. Boclair, 202 Ill. 2d 89, 101 (2002);
People v. Cage, 2013 IL App (2d) 111264, ¶ 13. If a petitioner makes a substantial showing of a
constitutional violation, the petition proceeds to an evidentiary hearing. People v. Tate, 2012 IL
112214, ¶ 10.
¶ 16 Here, the petition advanced to a third-stage evidentiary hearing. At the hearing, the court
heard no new evidence. It reviewed the transcript of the original sentencing hearing and heard
arguments from the parties. Generally, when a third-stage evidentiary hearing contains no new
evidence, the issues presented constitute a question of law which we will review de novo. People
v. English, 2013 IL 112890, ¶ 23.
¶ 17 A. Procedural Defects
6 ¶ 18 First, the State argues that the court erred in granting defendant’s petition where it was
unverified and untimely without a demonstration of cause excusing the late timing of his petition.
A verification pursuant to section 122-1 of the Act “confirms that the allegations are brought
truthfully and in good faith.” People v. Collins, 202 Ill. 2d 59, 67 (2002). When a petition is
untimely, the petitioner must allege a lack of culpable negligence, otherwise the court shall dismiss
the petition upon the State’s motion. Boclair, 202 Ill. 2d at 101. The State failed to raise either
issue in its amended motion to dismiss. Issues which are not raised in the circuit court are forfeited
on appeal. People v. Cruz, 2013 IL 113399, ¶ 20. The State may choose to waive procedural defects
where a defendant’s petition presents a viable claim of a constitutional violation. See Boclair, 202
Ill. 2d at 101-02; People v. Lander, 215 Ill. 2d 577, 584 (2005).
¶ 19 Between the court’s explicit granting of leave to amend the postconviction petition to
include a verification and the acknowledgment that the petition could be considered untimely in
defendant’s amended petition, the State was aware of the procedural issues that existed with
defendant’s petition. It appears from the record that the State intentionally chose to forego
dismissing the petition for procedural errors where it indicated to the court that defendant was
“entitled to have his case reviewed” and proceeded to argue for a dismissal based on the merits of
the claim. “Just as a petition can have merit despite its untimeliness [citation], so can a petition
that is merely unverified [citation].” People v. Turner, 2012 IL App (2d) 100819, ¶ 46.
Accordingly, the record demonstrates that the State has waived these issues.
¶ 20 B. Eighth Amendment Violation
¶ 21 Next, the State argues that the court erred in granting defendant’s amended postconviction
petition where it concluded that the sentencing court failed to consider defendant’s youth and its
attendant characteristics. Here, the record reflects that the sentencing court expressly indicated that
7 it had reviewed and would consider the PSI which contained extensive information regarding
defendant’s youth. Further, defense counsel made arguments regarding defendant’s youth and
ability to change as he aged. A sentencing court will necessarily consider a defendant’s youth if it
has the discretion to do so, particularly where defense counsel “advances an argument based on
the defendant’s youth.” Jones v. Mississippi, 593 U.S. ___, ___, 141 S. Ct. 1307, 1319 (2021).
Nothing in the record demonstrates that the sentencing court explicitly refused to consider the PSI,
or the evidence regarding defendant’s youth.
¶ 22 At the sentencing hearing, defendant faced a range of 20 to 60 years’ imprisonment with
day-for-day credit unless the court, in its discretion, made a finding that the conduct was
exceptionally brutal and heinous. Such a finding would allow the court to sentence defendant to
either an extended-term sentence of 60 to 100 years’ imprisonment or natural life. See Ill. Rev.
Stat. 1989, ch. 38, ¶¶ 1005-8-2(a)(1), 1005-5-3.2, 1005-8-1(a)(1)(a), (a)(1)(b). Thus, the court had
the discretion to impose less than a de facto life sentence and chose not to after consideration of
all the evidence and arguments presented. Where, as here, the court had the discretion to consider
a defendant’s youth and its attendant characteristics and impose a less than de facto sentence, its
sentencing decision is constitutionally sufficient and will not violate the eighth amendment. See
People v. Wilson, 2023 IL 127666, ¶ 42; Jones, 593 U.S. at ___, 141 S. Ct. at 1313. Accordingly,
defendant could not make a substantial showing of a constitutional violation and his eighth
amendment postconviction claim should have been denied.
¶ 23 In reaching this conclusion, we reject defendant’s argument that after our supreme court’s
recent decision in Wilson, a determination of “ ‘irretrievable depravity, permanent incorrigibility,
or irreparable corruption beyond the possibility of rehabilitation’ ” is still required by Buffer.
Wilson, 2023 IL 127666, ¶ 30 (quoting People v. Holman, 2017 IL 120655, ¶ 46); see also Buffer,
8 2019 IL 122327, ¶ 40. In Wilson, our supreme court explained that Miller did not require the circuit
court to find, either explicitly or implicitly, that a juvenile defendant is permanently incorrigible
to sentence them to life imprisonment. Wilson, 2023 IL 127666, ¶¶ 35-36, 38. The Wilson court
explained that “ ‘no viable Miller claim exists, “so long as the sentence is not mandatory—that is
[ ] so long as the sentencer has discretion to consider the mitigating qualities of youth and impose
a lesser punishment.” ’ ” Id. ¶ 40 (quoting Commonwealth v. Felder, 269 A.3d 1232, 1243 (Pa.
2022)). For the foregoing reasons, we reverse the judgment of the circuit court awarding defendant
a new sentencing hearing and remand for further postconviction proceedings concerning his
proportionate penalties claim.
¶ 24 III. CONCLUSION
¶ 25 The judgment of the circuit court of Bureau County is reversed and remanded for further
postconviction proceedings.
¶ 26 Reversed and remanded.