2022 IL App (1st) 210786 No. 1-21-0786 Opinion filed June 30, 2022 Fourth Division ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 99 CR 5283 ) ANTHONY WALSH, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Martin concurred in the judgment and opinion.
OPINION
¶1 The circuit court denied defendant Anthony Walsh’s motion for leave to file a successive
petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2018)). On appeal, defendant contends that he satisfied the cause and prejudice test on his
claim that his 35-year sentence violates the Illinois proportionate penalties clause.
¶2 For the reasons that follow, we affirm the judgment of the circuit court. 1
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. No. 1-21-0786
¶3 I. BACKGROUND
¶4 After a bench trial, defendant was found guilty of the first degree murder of Willie Lomax.
Defendant was sentenced to 35 years’ imprisonment. We set forth the facts in defendant’s direct
appeal (People v. Walsh, No. 1-00-2456 (2002) (unpublished order under Illinois Supreme Court
Rule 23)), and we recite them here to the extent necessary for our disposition.
¶5 On January 23, 1999, defendant, then 18 years old, was driving a vehicle in Chicago with
passengers Vincent Fox, Jessica Cosgrove, and Melissa Quinn. Defendant and Fox were members
of the “Two-Six” street gang. As the group drove west on 79th Street, they noticed three black
males walking down the street. The three individuals were Terrell Montgomery, Willie Griffin,
and Lomax.
¶6 Defendant and Fox said, “There goes the Blackstones. There goes the Vice Lords.” Fox
then flashed gang signs out the back window and screamed “Blackstone Killer.” Defendant then
drove the group to the “Two-Six” gang leader Red’s house. There, the group ran into another
“Two-Six” gang member, 14-year-old Chris Kronenberger. A discussion ensued among defendant,
Fox, and Kronenberger about the three individuals the group had earlier seen walking on 79th
Street. Defendant and Fox directed Kronenberger to get a pistol.
¶7 The group, now including Kronenberger, got back into the car, and defendant drove them
back to 79th Street. Defendant and Fox told Kronenberger that because he was only 14, if he got
caught, he would not be tried as an adult and would only be incarcerated until he was 21. The
group then passed the three individuals again near 79th Street and Homan Avenue.
¶8 Defendant pulled the car into a nearby alley. Kronenberger got out of the car, ran out of
the alley, and shot the pistol a single time, taking Lomax’s life. Kronenberger then ran back to the
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waiting car, and defendant drove the group away. In the next few days, defendant and Fox spoke
with Quinn and Cosgrove to construct an exculpatory version of events. The trial court found
defendant guilty of the first degree murder of Lomax.
¶9 The case then proceeded to sentencing, where defendant faced a sentence of between 20
and 60 years’ imprisonment. Defendant presented three witnesses in mitigation. Frank Ciaccia Jr.
testified that he was a commodities trader and that defendant had worked for him off and on for a
couple of years. Ciaccia had never known defendant to commit violent crimes or use drugs.
Defendant comported himself with the “utmost respect,” was “very responsible for the position he
had,” and would always “dress properly.” Ciaccia concluded that if defendant was given the
opportunity, he “could excel above and beyond” and that he could “make something very good of
himself.”
¶ 10 The other two witnesses were educators in the Department of Corrections. Nicholas
Palumbo taught defendant vocational training, Monday through Friday, for four-and-a-half hours
per day. Defendant had never exhibited any acts of violence and showed a lot of potential in
carpentry. Leroy Walker testified that he was a gym teacher and that defendant was an active
participant during gym periods. Defendant would lead and influence others during the sessions
and got along well with everyone. Walker concluded that defendant spoke very well, kept up his
appearance, and had the potential to be a “real citizen.”
¶ 11 In allocution, defendant apologized to the family of the victim. He stated he was “truly
sorry that this happened that way” and that “if [he’d] known that it was about to happen, [he] could
have done something to stop it.” Defendant concluded, “I’d just like to say that I’m sorry.”
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¶ 12 During arguments, defense counsel highlighted that defendant was found guilty “by
accountability” and that defendant was “not the one who pulled the trigger.” Defense counsel
argued that the court had to look, pursuant to the Illinois Constitution, to defendant’s potential for
rehabilitation and then to the seriousness of the offense. Counsel argued that defendant had “a lot
of things going for him.” Counsel pointed to defendant’s lack of criminal history in arguing that
the offense was an “aberration.” Counsel said the issue was “what to do with a kid like this.”
Counsel argued that defendant had “worked all of his life” because that is “how he was taught by
his parents.” Counsel asked for the minimum sentence of 20 years.
¶ 13 The trial court stated that it had read the presentence investigation (PSI) and all the letters
written on defendant’s behalf. The court also considered all the factors in aggravation and
mitigation. The trial court did not find defendant’s accountability status mitigating, as defendant
had “encouraged a juvenile” to do the “dirty work” for him. The trial court stated that defendant
“didn’t have to turn out this way” and “get involved with that gang stuff if he didn’t want to.” The
trial court took into consideration that defendant had no prior record and came from a good family.
The trial court sentenced defendant to 35 years in prison.
¶ 14 On direct appeal, defendant argued that the State had failed to prove him guilty beyond a
reasonable doubt and that the trial court erred in not allowing expert testimony to establish how
various drugs affected Jessica Cosgrove’s ability to perceive and remember events. This court
affirmed defendant’s conviction and sentence. Walsh, No. 1-00-2456 (2002) (unpublished order
under Illinois Supreme Court Rule 23).
¶ 15 Defendant filed his initial postconviction petition in June 2003. In the petition, defendant
argued that (1) trial counsel was ineffective because trial counsel refused to allow him to testify,
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(2) appellate counsel was ineffective for failing to properly argue the reasonable doubt issue on
direct appeal, an actual innocence claim, and (3) the Truth in Sentencing Act (730 ILCS 5/3-6-3
(West 2002)) was unconstitutional because it conflicted with the Illinois proportionate penalties
clause (Ill. Const. 1970, art. I, § 11). The trial court dismissed defendant’s petition at the first stage
as frivolous and patently without merit. This court affirmed. People v. Walsh, No. 1-03-2873
(2005) (unpublished order under Illinois Supreme Court Rule 23).
¶ 16 Defendant filed a motion for leave to file a successive postconviction petition in July 2007,
alleging actual innocence. The trial court denied defendant leave to file and this court affirmed that
decision. People v. Walsh, No. 1-07-2572 (2008) (unpublished order under Illinois Supreme Court
Rule 23).
¶ 17 On January 29, 2021, defendant filed the motion for leave to file a successive
postconviction petition at issue in this appeal. Defendant alleged that his 35-year sentence violated
the proportionate penalties clause, as applied to defendant. The trial court denied defendant leave
to file, concluding that defendant’s claim failed as a matter of law because defendant did not
receive a de facto life sentence. Defendant appeals the trial court’s denial of his motion for leave
to file a successive postconviction petition.
¶ 18 II. ANALYSIS
¶ 19 The Act provides a three-stage mechanism by which a criminal defendant may assert that
his conviction resulted from the substantial denial of a constitutional right. People v. Myles, 2020
IL App (1st) 171964, ¶ 17; People v. Delton, 227 Ill. 2d 247, 253 (2008). “[T]he Act contemplates
the filing of only one post-conviction petition.” People v. Pitsonbarger, 205 Ill. 2d 444, 456
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(2002). “Only when fundamental fairness so requires will the strict application of this statutory bar
be relaxed.” Id. at 458.
¶ 20 “[T]he cause-and-prejudice test is the analytical tool that is to be used to determine whether
fundamental fairness requires that an exception be made to section 122-3 so that a claim raised in
a successive petition may be considered on its merits.” Id. at 459. The cause-and-prejudice test has
been codified in the Act. Section 122-1(f) of the Act provides: “Leave of court may be granted
only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial
post-conviction proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West
2018). Thus, section 122-1(f) is an exception to the statutory waiver rule, “permitting a successive
petition, but only if the defendant first obtains permission from the court and demonstrates to the
court cause and prejudice for not having raised the alleged errors in his or her initial postconviction
petition.” People v. Bailey, 2017 IL 121450, ¶ 15.
¶ 21 “[A] prisoner shows cause by identifying an objective factor that impeded his or her ability
to raise a specific claim during his or her initial post-conviction proceedings.” (Internal quotation
marks omitted.) Id. ¶ 14. “[A] prisoner shows prejudice by demonstrating that the claim not raised
during his or her initial post-conviction proceedings so infected the trial that the resulting
conviction or sentence violated due process.” (Internal quotation marks omitted.) Id. “[T]he cause-
and-prejudice test for a successive petition involves a higher standard than the first-stage frivolous
or patently without merit standard.” People v. Smith, 2014 IL 115946, ¶ 35.
¶ 22 “[L]eave of court to file a successive postconviction petition should be 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
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with supporting documentation is insufficient to justify further proceedings.” Id. “The denial of a
defendant’s motion for leave to file a successive postconviction petition is reviewed de novo.”
Bailey, 2017 IL 121450, ¶ 13.
¶ 23 Defendant’s sole argument on appeal is that “the law and community standards around
sentencing teenagers have changed since the time he was sentenced in 2000, such that his sentence
violates the proportionate penalties clause of the Illinois constitution.” Defendant argues that he
established cause because the law has “substantively changed since his sentencing and original
post-conviction petition.” Defendant concludes that he established prejudice
“because the science and case law evolved since he was sentenced in 2000, and the
sentencing court did not take the attendant circumstances of his youth into consideration
before it imposed the 35-year sentence that will keep him incarcerated into his 50s for an
offense he committed when he was only 18 years old.”
¶ 24 The State responds that defendant has not established cause because he failed to justify his
failure to raise his proportionate penalties claim in earlier proceedings. The State continues that
Miller and its progeny do not apply to defendant because he did not receive a life sentence. Finally,
the State argues that the record shows that all the mitigation evidence was considered, including
evidence covering the Miller factors, when the trial court gave defendant a discretionary 35-year
sentence.
¶ 25 While defendant brings his claim under the Illinois proportionate penalties clause, the claim
has its roots in the eighth amendment to the United States Constitution. The eighth amendment
prohibits the infliction of “cruel and unusual punishments.” U.S. Const., amend. VIII. In a line of
cases, the United States Supreme Court has applied the eighth amendment to juvenile offenders
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who have committed serious offenses. In Roper v. Simmons, 543 U.S. 551 (2005), the Court held
that the eighth amendment prohibited the “imposition of the death penalty on offenders who were
under the age of 18 when their crimes were committed.” Id. at 578. In Graham v. Florida, 560
U.S. 48 (2010), the Court held that the “Constitution prohibits the imposition of a life without
parole sentence on a juvenile offender who did not commit homicide.” Id. at 82.
¶ 26 In Miller v. Alabama, 567 U.S. 460 (2012), the Court held that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders.” Id. at 479. The Court then determined that the Miller holding applied retroactively to
cases on collateral review. Montgomery v. Louisiana, 577 U.S. 190, 212 (2016). Most recently,
the Court clarified that Miller only required a “discretionary sentencing procedure” and not any
formal factual finding. Jones v. Mississippi, 593 U.S. ___, ___, 141 S. Ct. 1307, 1317 (2021).
¶ 27 The Illinois Supreme Court has also weighed in on the import of these decisions. Our
supreme court in People v. Reyes, 2016 IL 119271, held that Miller applied to de facto life
sentences. Id. ¶¶ 9-10. In People v. Buffer, 2019 IL 122327, our supreme court defined
a de facto life sentence for a juvenile as a sentence of more than 40 years’ imprisonment. Id. ¶ 41.
Our supreme court has also held that Miller applies to discretionary, as well as mandatory,
sentences (People v. Holman, 2017 IL 120655, ¶¶ 43-44), although the court has subsequently
called that holding into question (see People v. Dorsey, 2021 IL 123010, ¶ 41). With the eighth
amendment backdrop established, we turn to defendant’s proportionate penalties claim.
¶ 28 The proportionate penalties clause provides: “All 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. A penalty violates the proportionate penalties clause
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when it is “cruel, degrading, or so wholly disproportionate to the offense as to shock the moral
sense of the community.” People v. Miller, 202 Ill. 2d 328, 338 (2002). The Illinois Supreme Court
has twice indicated that young adult offenders may establish an unconstitutional life sentence
through a postconviction petition. In People v. Thompson, 2015 IL 118151, our supreme court
rejected the 19-year-old defendant’s as-applied constitutional challenge because it was raised for
the first time on appeal. Id. ¶ 44. However, the court noted that the defendant was not prohibited
from raising the issue through the Act. Id.
¶ 29 In People v. Harris, 2018 IL 121932, our supreme court reversed the appellate court’s
decision because the “appellate court held [the] defendant’s sentence violated the Illinois
Constitution without a developed evidentiary record on the as-applied constitutional challenge.”
Id. ¶ 40. The court concluded that because Miller did not apply directly to the 18-year-old
defendant’s circumstances, the record must be sufficiently developed to support the defendant’s
as-applied challenge. Id. ¶ 45.
¶ 30 We have described the import of Thompson and Harris as permitting “young adult
offenders” to bring a postconviction claim “alleging that their sentences in excess of 40 years
imposed without consideration of the Miller factors are unconstitutional as applied to them under
the proportionate penalties clause.” People v. Horshaw, 2021 IL App (1st) 182047, ¶ 69. With the
overarching law between the Illinois proportionate penalties clause and the eighth amendment to
the United States Constitution laid out, we can analyze whether defendant has satisfied the cause
and prejudice test under section 122-1(f).
¶ 31 As discussed above, a defendant establishes cause by “identifying an objective factor that
impeded his or her ability to raise a specific claim during his or her initial post-conviction
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proceedings.” (Internal quotation marks omitted.) Bailey, 2017 IL 121450, ¶ 14. Defendant relies
on the evolving case law and scientific research regarding young adult offenders to establish cause.
However, in Dorsey, 2021 IL 123010, ¶ 74, our supreme court held that “Miller’s announcement
of a new substantive rule under the eighth amendment does not provide cause for a defendant to
raise a claim under the proportionate penalties clause.” The court continued that “Miller’s
unavailability prior to 2012 at best deprived defendant of ‘some helpful support’ for his state
constitutional law claim, which is insufficient to establish ‘cause.’ ” Id. (quoting People v.
LaPointe, 2018 IL App (2d) 160903, ¶ 59). Based on Dorsey’s clear holding, defendant cannot
establish cause for his failure to raise his proportionate penalties claim in his initial postconviction
petition.
¶ 32 To be sure, this court has on occasion concluded that a defendant has established cause
based on the evolution of the case law in the juvenile sentencing arena. However, it appears that
when the court has done so, it has largely been based on the State’s concession of the issue. See
Horshaw, 2021 IL App (1st) 182047, ¶ 122 (noting that the State did not dispute that the defendant
had established cause “based on the retroactive application of Miller to cases on collateral
review”); People v. Meneses, 2022 IL App (1st) 191247-B, ¶ 17 (“The State concedes that
defendant has established the first prong.”); People v. Green, 2022 IL App (1st) 200749, ¶ 27
(noting that the State conceded that cause had been established “because the evolving case law
involving the sentencing of youthful offenders was not available” when the defendant filed his
prior petitions).
¶ 33 On the other hand, when cause has been fully litigated, as it was here, this court has
universally applied the holding in Dorsey to conclude that cause has not been established based on
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the prior unavailability of Miller and its progeny. See People v. Figueroa, 2022 IL App (1st)
172390-B, ¶¶ 36, 39. In Figueroa, this court began by noting that the State had “maintained from
the outset” that the defendant had failed to satisfy the cause prong for filing a successive petition
because he had not brought the claim in an earlier petition. Id. ¶ 36. This court then concluded that
Dorsey was “entirely dispositive,” based on the above-quoted language, and that the defendant had
not established cause for his failure to raise his proportionate penalties claim in an earlier
proceeding. Id. ¶ 39; see also People v. Ruddock, 2022 IL App (1st) 173023, ¶ 72 (“The supreme
court’s reasoning in Dorsey also establishes that the defendant in this case cannot satisfy the cause
prong of the cause-and-prejudice test for bringing a successive postconviction petition with respect
to his proportionate penalties claim under the Illinois Constitution.”); People v. Hemphill, 2022 IL
App (1st) 201112, ¶ 31 (“It follows that, based on the supreme court’s reasoning in Dorsey,
defendant in this case cannot satisfy the cause prong of the cause-and-prejudice test for bringing a
successive postconviction petition with respect to his proportionate penalties claim under the
Illinois Constitution.”).
¶ 34 In short, when cause has been litigated under these circumstances, and where the supreme
court’s decision in Dorsey was analyzed, this court has universally concluded that cause was not
established based on the evolution of the case law beginning with Miller. Defendant has not
established cause because the Illinois proportionate penalties clause existed long before he filed
his initial postconviction petition and, thus, he could have raised the claim at that time. His failure
to do so prohibits his current claim from proceeding, and the trial court properly denied defendant’s
motion for leave to file his successive petition.
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¶ 35 Defendant has also not established prejudice. As defendant concedes, he was not sentenced
to a de facto life sentence under Buffer. The Illinois Supreme Court made clear in Buffer that
“to prevail on a claim based on Miller and its progeny, a defendant sentenced for an offense
committed while a juvenile must show that (1) the defendant was subject to a life sentence,
mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to
consider youth and its attendant characteristics in imposing the sentence.” Buffer, 2019 IL
122327, ¶ 27.
We recognize that our supreme court has opened up the possibility that a young adult offender
may establish that Miller applies to his or her case through the proportionate penalties clause.
Nonetheless, the young adult offender must still prove the two prerequisites established in Buffer.
¶ 36 Defendant has not met the first requirement and, thus, his proportionate penalties claim
fails. This court has held on numerous occasions that a defendant who did not receive a de facto
life sentence cannot establish prejudice on a claim based on Miller and its progeny. See People v.
Hilliard, 2021 IL App (1st) 200112, ¶ 31 (declining the defendant’s “invitation to extend Miller to
sentences of less than natural or de facto life imprisonment”); People v. Woods, 2020 IL App (1st)
163031, ¶ 57 (holding that the defendant’s 33-year sentence did “not raise the constitutional
concerns expressed in Miller and Buffer” because it was neither a mandatory life sentence nor a
de facto life sentence); People v. Benford, 2021 IL App (1st) 181237, ¶ 16 (holding that because
the “defendant did not receive a life sentence, either natural or de facto, he cannot establish the
prejudice requirement necessary to excuse his failure to raise the claim that his sentence was
unconstitutional at an earlier proceeding”). Because defendant did not receive a life sentence,
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natural or de facto, he cannot establish prejudice for his earlier failure to raise a proportionate
penalties claim based on Miller and its progeny.
¶ 37 While the Illinois proportionate penalties clause (Ill. Const. 1970, art. I, § 11) applies to
“[a]ll penalties,” not just life sentences, defendant has not independently argued that his 35-year
sentence is “so wholly disproportionate to the offense as to shock the moral sense of the
community.” Miller, 202 Ill. 2d at 338. Instead, defendant consistently refers to his claim as an
“as-applied Miller claim” where the trial court imposed the sentence “without consideration of his
youth and potential for rehabilitation.” As just discussed, a defendant raising an “as-applied Miller
claim” must as a threshold requirement establish that his or her sentence amounts to de facto life.
Because defendant has not done so, he cannot establish prejudice.
¶ 38 Finally, for completeness’s sake, defendant could not on this record establish that his 35-
year sentence is so “wholly disproportionate to the offense as to shock the moral sense of the
community.” While defendant describes himself as the “driver in a gang-related shooting,” his
participation in Lomax’s murder was not passive.
¶ 39 Defendant first drove past three individuals he perceived to be from a rival gang. After
passenger and fellow gang member Fox threw gang signs and yelled “Blackstone killer,” defendant
proceeded to drive to the gang leader’s house. There, defendant enlisted the services of 14-year-
old Chris Kronenberger. Defendant instructed Kronenberger to retrieve a pistol. Defendant then
drove Kronenberger back to where the group saw the perceived rival gang members. On the way,
defendant and Fox assured Kronenberger that he would not serve a lengthy sentence if he
committed the shooting because of his young age. Defendant then drove into an alley, let
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Kronenberger out, and waited while the 14-year-old Kronenberger completed the shooting.
Kronenberger then got back into the car and defendant drove away.
¶ 40 This is not a typical accountability case, wherein the accomplice is normally less culpable
than the principal. Defendant directed Kronenberger to get the pistol, and then defendant drove
Kronenberger to the scene, all while assuring him that he would not serve a lengthy sentence. As
the trial court found at sentencing, defendant “chose to get the juvenile to commit this murder for
him.” Defendant’s actions as an accomplice were aggravating and not mitigating.
¶ 41 In short, defendant cannot establish that his 35-year sentence for enlisting the services of
and directing 14-year-old Kronenberger to commit murder is “so wholly disproportionate to the
offense as to shock the moral sense of the community.” Id. As a result, he has failed to establish
prejudice stemming from any earlier failure to raise a proportionate penalties claim. The trial court
correctly denied his motion for leave to file a successive postconviction petition.
¶ 42 III. CONCLUSION
¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 44 Affirmed.
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2022 IL App (1st) 210786
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 99-CR-5283; the Hon. Stanley J. Sacks, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Ashlee Johnson, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Gina DiVito, and Gina Savini, Assistant State’s Appellee: Attorneys, of counsel), for the People.
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