People v. White

2021 IL App (4th) 200108-U

Opinion

NOTICE 2021 IL App (4th) 200108-U This Order was filed under FILED NO. 4-20-0108 September 27, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County NATHANIEL N. WHITE, ) No. 02CF1611 Defendant-Appellant. ) ) Honorable ) John R. Kennedy, ) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices Turner and Cavanagh concurred in the judgment.

ORDER ¶1 Held: The motion of the Office of the State Appellate Defender to withdraw as defendant’s appellate counsel is granted, and the trial court’s dismissal of defendant’s successive postconviction petition is affirmed.

¶2 Defendant, Nathaniel N. White, appeals the trial court’s dismissal of his

successive postconviction petition. On appeal, the Office of the State Appellate Defender

(OSAD) was appointed to represent him. OSAD has filed a motion to withdraw as appellate

counsel, alleging an appeal would be frivolous. Defendant has not filed a response to OSAD’s

motion. For the following reasons, we grant OSAD’s motion and affirm the trial court’s

judgment.

¶3 I. BACKGROUND ¶4 On direct appeal, this court previously set forth all of the relevant facts involved

in this case. We reiterate only the facts necessary in reaching our decision below.

¶5 A. Jury Trial and Direct Appeal

¶6 In September 2002, a grand jury indicted defendant, who was then 16 years old,

with five counts of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2002)), alleging

defendant “struck, kicked, and strangled” Robert James Nash to death.

¶7 In March 2003, a jury found defendant guilty of first degree murder. In April

2003, the trial court sentenced defendant to 27 years’ imprisonment. In May 2003, defendant

filed a notice of direct appeal. On direct appeal, defendant argued (1) the State failed to prove

him guilty beyond a reasonable doubt, (2) his trial counsel was ineffective, and (3) his 27-year

sentence was excessive. In December 2004, this court affirmed defendant’s conviction. People v.

White, No. 4-03-0458 (2004) (unpublished order under Illinois Supreme Court Rule 23).

¶8 B. Relevant Postconviction Proceedings

¶9 In June 2005, defendant filed a pro se postconviction petition pursuant to the

Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 et seq. (West 2004)). The

petition asserted (1) the trial court erred in failing to instruct the jury on the lesser-included

offense of second degree murder, (2) ineffective assistance of trial and appellate counsel, and

(3) defendant was denied a fair trial when one juror claimed she did not know the victim or his

family when, in fact, she did.

¶ 10 Following a March 2007 evidentiary hearing, the trial court denied the petition,

finding defendant “failed to establish any substantial constitutional violation in any of the issues

*** in this Post-Conviction Petition.” Defendant appealed, and this court subsequently affirmed

-2- the trial court’s judgment. People v. White, No. 4-07-0306 (2008) (unpublished order under

Illinois Supreme Court Rule 23).

¶ 11 C. The Instant Postconviction Petition

¶ 12 In May 2019, defendant filed a pro se motion for leave to file a successive

postconviction petition, attaching the petition to the motion. Defendant asserted, in relevant part,

his 27-year sentence violated the eighth amendment’s ban on cruel and unusual punishment

(U.S. Const., amend. VIII) and the Illinois Constitution’s proportionate penalties clause (Ill.

Const. 1970, art. I, § 11). Defendant further asserted that, in light of People v. Othman, 2019 IL

App (1st) 150823, 143 N.E.3d 32, he was entitled to “approximately 17 years” of sentencing

credit and argued “that Truth in Sentnacing [sic] does not meet the standards set forth in the

constitution as applied to juveniles sentanced [sic] as adults.” The trial court subsequently

granted defendant’s motion and appointed counsel to represent defendant.

¶ 13 In November 2019, appointed counsel filed an amended postconviction petition,

arguing the Truth in Sentencing Act—section 3-6-3(a)(2) of the Unified Code of Corrections

(Unified Code) (730 ILCS 5/3-6-3(a)(2) (West 2018))—was unconstitutional as applied to

juvenile offenders and requesting the trial court “find that [defendant] is entitled to day-for-day

sentence credit under 730 ILCS 5/3-6-3(a)(2.1) [(West 2018)].” Appointed counsel also filed a

Rule 651(c) certificate. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

¶ 14 In December 2019, the State filed a motion to dismiss defendant’s amended

petition. Citing People v. Pacheco, 2013 IL App (4th) 110409, 991 N.E.2d 896, the State argued

the Truth in Sentencing Act was not unconstitutional as applied to defendant and further argued

defendant’s eighth amendment and proportionate penalties claims were meritless and

procedurally barred.

-3- ¶ 15 On January 16, 2020, defendant filed a response to the State’s motion to dismiss.

Defendant alleged his continued imprisonment violated the eighth amendment, arguing the

supreme court “recognized in People v. Buffer, 2019 IL 122327, ¶ 17-24, *** that the Miller,

Roper, Graham, and Montgomery tetralogy stands for the principle that children are unique not

only in their diminished culpability, but also in their capacity for reform and rehabilitation.”

Defendant further asserted “[c]ause to depart from Pacheco exists in this case,” and argued “that

Othman not only analyzed 730 ILCS 5/3-6-3(a)(2) as a mechanism that stripped Illinois courts of

the ability to account for the special rehabilitative potential of juveniles, but also convincingly

demonstrated that this drastic application to juveniles was likely unintentional.”

¶ 16 On January 27, 2020, the State filed a reply in support of its motion to dismiss

defendant’s amended postconviction petition. The State argued defendant’s reliance on Othman

was misplaced in that, “on January 9, 2020, the Illinois Supreme Court vacated the portions of

the [Othman] decision relating to truth in sentencing.” The State further argued defendant’s 27-

year sentence could not implicate the eighth amendment or the proportionate penalties clause as

Buffer clarified the constitutional framework applicable to juvenile offenders at sentencing

applies only to those serving de facto life sentences.

¶ 17 In February 2020, a hearing was conducted on defendant’s amended

postconviction petition and the State’s motion to dismiss. Following the parties’ arguments, the

trial court granted the State’s motion, finding “that the truth-in-sentencing principle as applied to

[defendant] is not unconstitutional.”

¶ 18 This appeal followed. OSAD, appointed counsel for defendant on appeal, filed a

motion for leave to withdraw as defendant’s counsel and attached a supporting memorandum of

law, citing Pennsylvania v. Finley, 481 U.S. 551 (1987), People v. Kuehner, 2015 IL 117695, 32

-4- N.E.3d 655, and People v. Meeks, 2016 IL App (2d) 140509, 51 N.E.3d 1109. This court granted

defendant leave to file additional points and authorities on or before April 19, 2021. None have

been filed.

¶ 19 II. ANALYSIS

¶ 20 OSAD seeks to withdraw as counsel on appeal, asserting it can make no

meritorious argument (1) section 3-6-3(a)(2) of the Unified Code is unconstitutional, as applied

to defendant, under either the eighth amendment or the proportionate penalties clause and

(2) defendant was denied the reasonable assistance of postconviction counsel at the second stage

of proceedings.

¶ 21 A. Standard of Review

¶ 22 The Postconviction Act provides a criminal defendant the means to redress

substantial violations of his constitutional rights which occurred in his original trial or

sentencing. People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 23, 38 N.E.3d 1256; 725 ILCS

5/122-1 (West 2018). The Postconviction Act contains a three-stage procedure for relief. People

v. Allen, 2015 IL 113135, ¶ 21, 32 N.E.3d 615; 725 ILCS 5/122-2.1 (West 2018). Within the first

90 days after the petition is filed and docketed, the trial court shall dismiss a petition summarily

if the court determines it is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2)

(West 2018). If the petition is not dismissed as being frivolous or patently without merit, then the

trial court (1) orders the petition to be docketed for further consideration and (2) appoints

counsel if the petitioner is indigent and so requests. Id. § 122-2.1(b).

¶ 23 At the second stage, counsel must then investigate defendant’s claims and make

any amendments necessary for an adequate presentation thereof. Ill. S. Ct. R. 651(c) (eff. Feb. 6,

2013). The State may file a motion to dismiss the petition, and the petition advances to a

-5- third-stage evidentiary hearing only if defendant’s pleadings make a “substantial showing of a

constitutional violation.” People v. Buffer, 2019 IL 122327, ¶ 45, 137 N.E.3d 763.

¶ 24 The Illinois Supreme Court has described proceedings at the second stage as

follows:

“The second stage of postconviction review tests the legal

sufficiency of the petition. Unless the petitioner’s allegations are

affirmatively refuted by the record, they are taken as true, and the

question is whether those allegations establish or ‘show’ a

constitutional violation. In other words, the ‘substantial showing’

of a constitutional violation that must be made at the second stage

([citation]) is a measure of the legal sufficiency of the petition’s

well-pled allegations of a constitutional violation, which if proven

at an evidentiary hearing, would entitle petitioner to relief.”

(Emphasis in original.) People v. Domagala, 2013 IL 113688,

¶ 35, 987 N.E.2d 767.

¶ 25 “The question raised in an appeal from an order dismissing a postconviction

petition at the second stage is whether the allegations in the petition, liberally construed in favor

of the petitioner and taken as true, are sufficient to invoke relief under the Act.” People v.

Sanders, 2016 IL 118123, ¶ 31, 47 N.E.3d 237. An appellate court reviews the dismissal of a

petition at the second stage de novo. People v. House, 2020 IL App (3d) 170655, ¶ 28, 152

N.E.3d 574.

¶ 26 B. Defendant’s As-Applied Challenge

-6- ¶ 27 OSAD first asserts no colorable claim can be made the Truth in Sentencing Act,

as applied to defendant, violates his rights under the eighth amendment to the United States

Constitution, which prohibits “cruel and unusual punishments” (U.S. Const., amend. VIII), or the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). A

sentence violates this clause if 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,

781 N.E.2d 300, 307 (2002). “An as-applied challenge requires a showing that the statute

violates the constitution as it applies to the facts and circumstances of the challenging party.”

(Internal quotation marks omitted.) People v. Gray, 2017 IL 120958, ¶ 58, 91 N.E.3d 876. In

reviewing defendant’s claim, we are cognizant that “[a]ll statutes are presumed to be

constitutional” and “[t]he party challenging the constitutionality of a statute has the burden of

clearly establishing its invalidity.” People v. Minnis, 2016 IL 119563, ¶ 21, 67 N.E.3d 272.

¶ 28 In support of his claim, defendant cites Othman, 2019 IL App (1st) 150823. In

Othman, the First District concluded the truth-in-sentencing statute “preclude[d] [the defendant]

from any possibility of early release” and was therefore unconstitutional as applied to him and

similarly situated juvenile defendants because, under that statute, “those juvenile defendants

cannot, under any circumstance, demonstrate their potential for rehabilitation at any time prior to

the completion of their sentence.” Id. ¶ 109. However, the portion of the Othman decision

defendant relies on has been vacated by the supreme court (see People v. Othman, No. 125580

(Ill. Jan. 9, 2020) (supervisory order); People v. Othman, 2020 IL App (1st) 150823-B, ¶ 5) and

therefore has no precedential authority (see Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d

52, 66, 866 N.E.2d 85, 93 (2006) (stating an appellate decision vacated by the supreme court

“carries no precedential weight”)). We also note, shortly after Othman was decided, the supreme

-7- court found “a prison sentence of 40 years or less imposed on a juvenile offender provides some

meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

(Internal quotation marks omitted.) Buffer, 2019 IL 122327, ¶ 41.

¶ 29 Moreover, Illinois courts have repeatedly rejected similar as-applied challenges

concerning the constitutionality of section 3-6-3(a)(2) of the Unified Code. See People v.

Pacheco, 2013 IL App (4th) 110409, ¶ 60, 991 N.E.2d 896; see also People v. Banks, 2015 IL

App (1st) 130985, ¶ 23, 36 N.E.3d 432; People v. Cavazos, 2015 IL App (2d) 120444, ¶ 86, 40

N.E.3d 118. In Pacheco, this court found the Truth in Sentencing Act not unconstitutional as

applied to a juvenile offender similarly situated to defendant under the eighth amendment and

proportionate penalties clause. Pacheco, 2013 IL App (4th) 110409, ¶ 60. There, we specifically

noted the eighth amendment did not prohibit “a juvenile defendant from being subject to the

same mandatory minimum sentence as an adult, unless the mandatory minimum sentence was

death or life in prison without the possibility of parole.” Id. ¶ 58.

¶ 30 Defendant was not sentenced to mandatory life without the possibility of parole.

Rather, his sentence for first degree murder was just 7 years above the minimum sentence and 33

years below the maximum penalty authorized by statute. See 730 ILCS 5/5-8-1(a)(1)(a) (West

2002). The concerns expressed in Othman regarding the Truth in Sentencing Act are inapplicable

here because defendant was sentenced to 27 years’ imprisonment and, pursuant to Buffer, his

sentence does not deny him the opportunity to demonstrate his potential for rehabilitation.

¶ 31 Because defendant’s eighth amendment claim based on Othman fails, so does his

claim under the proportionate penalties clause as “the Illinois proportionate penalties clause is

co-extensive with the eighth amendment’s cruel and unusual punishment clause.” People v.

Patterson, 2014 IL 115102, ¶ 106, 25 N.E.3d 526. Consequently, we agree with OSAD no

-8- meritorious argument can be made the Truth in Sentencing Act, as applied to defendant, violates

his rights under either the eighth amendment to the United States Constitution or the

proportionate penalties clause of the Illinois Constitution.

¶ 32 C. Reasonable Assistance

¶ 33 OSAD additionally contends any argument defendant was denied the reasonable

assistance of his appointed counsel would be meritless. We agree.

¶ 34 The right to counsel at the second stage of postconviction proceedings is wholly

statutory, and petitioners are only entitled to the level of assistance provided for by the

Postconviction Act. People v. Suarez, 224 Ill. 2d 37, 42, 862 N.E.2d 977, 979 (2007) (citing

People v. Turner, 187 Ill. 2d 406, 410, 719 N.E.2d 725, 727-28 (1999)). “The [Postconviction]

Act provides for a reasonable level of assistance.” Id. (citing People v. Flores, 153 Ill. 2d 264,

276, 606 N.E.2d 1078, 1084 (1992)).

¶ 35 To assure a reasonable level of assistance, Illinois Supreme Court Rule 651(c)

requires that postconviction counsel (1) consults with petitioner by phone, mail, electronic means

or in person to ascertain his or her contentions of deprivation of constitutional rights, (2) examine

the record of the proceedings at the trial, and (3) make any amendments necessary to the pro se

petition to adequately present petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

“[T]he Illinois Supreme Court ‘has consistently held that remand is required where

postconviction counsel failed to fulfill the duties of consultation, examining the record, and

amendment of the pro se petition, regardless of whether the claims raised in the petition had

merit.’ ” People v. Schlosser, 2012 IL App (1st) 092523, ¶ 30, 973 N.E.2d 960 (quoting Suarez,

224 Ill. 2d at 47).

-9- ¶ 36 As OSAD points out, appointed counsel filed a certificate pursuant to Rule 651(c)

“indicating that he consulted with [defendant] by phone, mail, electronic means, or in person;

additionally, counsel examined the trial record and made *** amendments to the pro se petition

that were necessary for [the] adequate presentation of [defendant’s] contentions.” “The filing of a

facially valid Rule 651(c) certificate creates a rebuttable presumption that counsel acted

reasonably and complied with the rule.” People v. Wallace, 2016 IL App (1st) 142758, ¶ 25, 67

N.E.3d 976. Nothing in the record rebuts this presumption. We therefore agree with OSAD any

argument defendant was deprived the reasonable assistance of appointed counsel would be

without merit.

¶ 37 III. CONCLUSION

¶ 38 We grant OSAD’s motion for leave to withdraw as appellate counsel and affirm

the trial court’s judgment.

¶ 39 Affirmed.

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