People v. White

2024 IL App (1st) 210986-U

Opinion

2024 IL App (1st) 210986-U

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).

FIRST DIVISION September 16, 2024 No. 1-21-0986 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Respondent-Appellee, ) Cook County ) v. ) No. 02 CR 23677 ) TONY WHITE, ) The Honorable ) Vincent M. Gaughan, Petitioner-Appellant. ) Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justice Cobbs concurred in the judgment. Justice Pucinski specially concurred.

ORDER

¶1 Held: The appellate court affirms the trial court’s summary dismissal of a postconviction petition that raised claims of ineffective assistance of trial counsel and a proportionate penalties challenge to a mandatory life sentence for murdering multiple victims.

¶2 Petitioner Tony White appeals from the trial court’s first-stage summary dismissal of his

postconviction petition. He contends that it raised two arguable claims of ineffective assistance of

counsel, due to trial counsel’s failure to advise him of his right to testify at his trial and to seek

suppression of his videotaped statement on the basis that he did not understand the Miranda

warnings given. He further contends that it raised an arguable claim that the statute mandating life No. 1-21-0986

without parole for the murder of multiple victims violates the proportionate penalties clause of the

Illinois constitution (Ill. Const. 1970, art. I, § 11) as applied to him. For the following reasons, we

affirm the trial court’s summary dismissal.

¶3 I. BACKGROUND

¶4 On May 7, 2001, Donna Wright and her 22-year-old son Jerome Wright were shot while

inside their apartment on Chicago’s West Side. Donna was found dead the following afternoon.

Jerome was found alive but died a year and a half later from his injuries. Petitioner, who had been

Donna’s boyfriend for about 12 years, confessed to shooting both victims in a videotaped

statement. He was eventually convicted of two counts of first degree murder, for which he is

serving a mandatory sentence of natural life in prison.

¶5 At the time of the offense, petitioner was 36 years old. He had a mild intellectual disability,

with an IQ in the bottom one percentile of the population. Petitioner was not found fit to stand trial

until January 2008, at which time his jury trial took place.

¶6 In July 2003, petitioner’s counsel filed a motion to suppress his videotaped statement. No

copy of that initial motion to suppress is contained in the record on appeal, but later comments by

counsel indicate that one of its bases for suppression was that petitioner “ ‘was incapable and

unable to appreciate and understand the full meaning of his Miranda rights.’ ” The suppression

hearing did not occur until March 2006. At a status hearing one month prior, petitioner’s counsel

informed the trial court that she was striking the above language from the petition; although

counsel did not state a precise reason for this action, she indicated that she had recently discussed

the issue of petitioner’s understanding of Miranda with the defense’s retained psychologist, Dr.

Joan Lesko, after receiving reports from the State’s retained psychologist and psychiatrist on the

matter. Counsel thereafter filed an amended motion to suppress the statement that did not contain

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this allegation concerning petitioner’s inability to understand his Miranda warnings. The amended

motion included the allegation that due to petitioner’s full-scale IQ of between 66-67 and his mild

intellectual disability, his statements were not voluntarily, knowingly, and intelligently made.

¶7 In August 2003, the trial court entered on order that petitioner undergo examination by the

circuit court’s forensic clinic services department to evaluate his fitness to stand trial, his sanity at

the time of the alleged offense, and his ability to understand the Miranda warnings he had been

given. Petitioner was then examined for six hours over two days in September 2003 by Erick A.

Neu, Psy.D., a licensed clinical psychologist with the forensic clinical services department. The

report written by Dr. Neu stated that he performed testing that showed petitioner had a full-scale

IQ of 60, placing him in the lowest 0.3 percentile of the population; a verbal IQ of 57, which was

also in the lowest 0.3 percentile; and a performance IQ of 67, which was in the lowest 1 percentile.

Dr. Neu found that he was not exaggerating his degree of impairment. Dr. Neu’s report further

stated that his opinion was that petitioner “would have been unable to understand his Miranda

warnings.” He explained in the report that petitioner was unable to paraphrase even a basic

understanding of the individual Miranda warnings and could not apply them to various scenarios.

He wrote that petitioner’s low IQ, combined with his desire to please authority figures and being

in a stressful situation, led him to acquiesce to the state’s attorney’s request to give his statement

despite being unaware of what he was agreeing to or the possible consequences.

¶8 Petitioner’s suppression hearing was the basis of multiple issues raised on direct appeal, and

accordingly a full recitation of the facts surrounding that hearing is set forth in our prior decision.

Pertinent to this appeal, Dr. Neu was called as a witness on behalf of petitioner. In questioning Dr.

Neu, petitioner’s counsel did not elicit from him any opinion about whether petitioner understood

the Miranda warnings that he had been given prior to his statement. Dr. Neu did testify as to his

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findings concerning petitioner’s low IQ and his intellectual disabilities. He also acknowledged on

cross-examination that a low IQ did not mean that petitioner could not make free and rational

choices. Detectives James Adams and Gregory Jones of the Chicago Police Department both gave

testimony that petitioner did not appear mentally impaired or disabled when they spoke to him and

that he never indicated that he did not understand when they advised him of his Miranda rights.

Petitioner’s videotaped statement was viewed by trial court. In argument, petitioner’s counsel did

not argue that petitioner did not understand his Miranda warnings, and counsel did not connect the

evidence of petitioner’s low IQ to his understanding of them. Rather, counsel argued that the

detectives had taken advantage of his low IQ to coerce him into making a statement.

¶9 The trial court denied the motion to suppress, finding that the allegation that petitioner lacked

the capacity to knowingly or voluntarily waive his Miranda rights had been disproven beyond a

preponderance of the evidence. The trial court referenced the evidence of petitioner’s low IQ, but

it also noted that petitioner exhibited a calm demeanor in the video, seemed capable of

understanding the concept of circumstantial evidence, and “was able to detail an elaborate course

of events with complex facts” occurring before, during, and after and in different locations.

¶ 10 At the jury trial, petitioner’s counsel pursued the defense that petitioner had acted in what he

believed was self-defense when he shot Donna and Jerome. Accordingly, petitioner’s counsel

ultimately argued for the jury to find him guilty of second degree murder, not first degree murder.

¶ 11 Petitioner’s videotaped statement was introduced into evidence and played for the jury

through the testimony of Assistant State’s Attorney Colleen Daly, who conducted the interview of

petitioner as part of her felony-review duties on May 8, 2001. The statement begins with Daly

giving petitioner Miranda warnings. Petitioner indicated that he understood them and that he

agreed to give a videotaped statement.

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¶ 12 In his statement, petitioner stated that on the evening of May 6, 2001, he had been at his

aunt’s house with his brother, who was visiting from Arkansas. At around 10:30 or 11 p.m.,

petitioner’s brother drove him home to the apartment that he shared with Donna and Jerome, both

of whom were then home. Petitioner went into the bedroom that he and Donna shared and found

Donna sitting on the bed watching TV. An argument ensued, in which Donna “went into a jealous

rage.” Petitioner explained that Donna did not believe that he had been with his brother at his

aunt’s house. Instead, she thought that he had been with another woman. At some point during

their argument, Donna got up and pushed him; petitioner told her not to put her hands on him. He

stated that she also “started punching me, hitting me about three or four times” in the face. She

also “bust my lip,” which petitioner explained “made me kind of spooky and scared cause I don’t

know what she gonna do to me. Cause I know I can’t whoop her, you know.” This argument

occurred while both he and Donna were inside the bedroom. Eventually petitioner got up, and

Donna demanded petitioner give her his keys. Petitioner refused, and Donna took his keys out of

his back pocket. Petitioner then retrieved a different set of keys from a drawer. He left and went

outside the apartment, onto the back porch.

¶ 13 Petitioner came back inside and returned to the bedroom. When he did this, Donna got up

and went into the bathroom. Petitioner stated that, at that point, he was scared. He was thinking

that he did not know what she might do, as “she told me once before, she’ll shoot me.” He

confirmed that she did not make this threat that night, but she had “told me a million times, she’ll

shoot me. *** She ain’t scared to use no gun. She know how to use one already.” Petitioner knew

there was a handgun underneath the bed. He retrieved it and put it into his pocket, but he stated

that he “wasn’t intending to do nothing with it when I got it.” After Donna returned to the bedroom,

petitioner returned to the back porch where he remained for about 10 minutes. During that time,

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he was checking whether the gun was loaded. The gun did not fire when he first tested it. After

realizing that he needed to push the safety up, “I just put it in the air and it went off.”

¶ 14 He then went back inside the apartment. He picked up what he described as a couch cushion

or pillow, and he went to Jerome’s room. Petitioner then explained that earlier, when Donna had

left the bedroom to go into the bathroom, she had stopped at Jerome’s door to talk to him. Petitioner

stated that he overheard Jerome tell Donna not to worry about it and that Jerome said he would

“take care of my ass.” Hearing that made petitioner think that Jerome might be planning to do

something to him. When petitioner opened the door to Jerome’s room, Jerome was sitting on his

bed watching TV with loud music playing. Jerome did not have a gun in his hand. Petitioner put

the cushion over the gun and fired a shot into Jerome’s room. He did not know why he used the

cushion but stated that he thought it might make the gunshot quieter. He closed the door and left

without noticing whether the shot hit Jerome. Petitioner stated that he next went to Donna’s

bedroom, where the door was closed. When he opened the door, Donna was laying down. She

raised up, and petitioner shot her in the head. Donna did not have a gun in her hand at that time.

¶ 15 Petitioner stated that he then went to the nearby home of his uncle Darris Hobbs. He told

Hobbs that he had shot Donna and Jerome and that he was “tired of getting abused, you know, by

the same woman all the time.” Petitioner was again asked by Assistant State’s Attorney Daly

whether Donna pointed a gun at him that night; he answered no, “but she had talked about shooting

me” and said that “if I was with another woman she would kill me.” He stated that Donna did not

mention shooting him that night, “but I knew if it really came up to that point she probably would

have. But if we would have stayed there and fought, we probably would have.”

¶ 16 Petitioner’s counsel cross-examined Assistant State’s Attorney Daly about her questioning

of petitioner during his statement. In summary, petitioner’s counsel sought to establish that Daly

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had shaped petitioner’s statement in a way that elicited only incriminating facts while limiting

details that were potentially exculpatory or related to his belief that he needed to act in self-defense.

Specifically, counsel sought to establish through cross-examination that Daly had chosen not to

ask follow-up questions on the topics of how Donna physically pushed him during the argument

that night, her history of physically abusing petitioner, her past threats to shoot him, her history of

using guns, the conversation that petitioner overheard between Donna and Jerome, and the reasons

why petitioner felt threatened or scared of what Donna or Jerome might do to him that night.

¶ 17 The State also presented the testimony of six witnesses who had interactions with petitioner

between approximately 2 a.m. and 3:30 p.m. on May 7, 2001. Tomeka Collins testified that at 2

a.m. she was in the alley talking on her phone adjacent to Jerome’s bedroom window when

petitioner appeared in that window and asked if he could use her phone. She allowed him to do so,

and she overheard petitioner tell the person he called that “he need[ed] to hurry up and get to

Mississippi, for someone to come and get him.” Patricia Wright testified that she heard a gunshot

that night, which she did not initially investigate. About half an hour after that, which would have

been around 2:30 or 3 a.m., petitioner knocked on a window of her apartment and asked to use her

phone, but she told him no. Darris Hobbs testified that petitioner came to his house around 2:30 or

3 a.m. and told him that he had “shot his old lady and stepson.” Petitioner did not tell him that he

and Donna had a fight that night or that she had hit him. Hobbs testified that petitioner returned

sometime later and asked if he could put a gun in his basement. Hobbs refused, and petitioner left.

¶ 18 Yolanda Boens testified that at about 7 a.m., petitioner came to her house and asked her to

take a bag from him that contained a handgun. Boens agreed to take the bag, and she gave it to her

son. Raymond Williams, a close acquaintance of petitioner, testified that petitioner was walking

down the street around 8 a.m. Petitioner said to him that he did not want to go home because Donna

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would be mad that he had been out all night. Petitioner thus rode with Williams to take his children

to school and then went back to Williams’ house to watch a movie. Petitioner stayed with Williams

until about 2:45 p.m., at which point Williams dropped petitioner at a Radio Shack on his way to

work. Shirley Neal, Tomeka Collins, and James Collins all testified that at around 3:30 p.m., they

saw petitioner in the courtyard of the apartment complex wearing black gloves. Neal testified also

that she saw petitioner throw a pillow into a garbage can at that time. Someone asked petitioner

where Jerome was, and petitioner responded that he had been shot. James Collins then followed

petitioner into his apartment and saw that Jerome had been shot. Tomeka Collins called the police.

¶ 19 Officer Todd Reykjalin of the Chicago Police Department arrived on the scene and petitioner,

who was wearing black leather gloves, directed him and other officers to the location of the

victims. Another officer called an ambulance for Jerome, who was alive but unresponsive.

Petitioner was detained after Officer Reykjalin observed him remove and attempt to conceal the

leather gloves and “almost exiting through the back door.”

¶ 20 Petitioner was transported to a police station, where Detectives Jones and Adams interviewed

him. Detective Jones testified that, after being given Miranda warnings, petitioner agreed to speak

with them. He initially denied involvement in the shootings and told them he had spent the night

at his aunt’s house. Eventually, however, petitioner confessed to shooting both Donna and Jerome.

Detective Jones testified that petitioner provided a statement materially consistent with the one set

forth above, except that Detective Jones stated that petitioner said that he placed the gun directly

on Donna’s forehead. Detective Jones also testified on cross-examination that petitioner did not

say anything to the detectives about fearing what Donna might do to him that night, including

fearing that she would shoot him with a gun.

¶ 21 In the defense case, petitioner’s counsel recalled Detective Jones, who confirmed that Hobbs

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had told him during his investigation that petitioner said “[t]hey pushed me into it.” Hobbs also

said to Detective Jones that petitioner told him that he and Donna had a fight that night in which

Donna slapped him in the head and hit him in the eye.

¶ 22 Clifton White, who is petitioner’s brother, testified that sometime after 10:30 or 11 p.m., he

drove petitioner home to his apartment and went inside with him. He testified that petitioner went

into Donna’s bedroom and closed the door. He could hear Donna yelling but could not make out

what was being said. After about 10 or 15 minutes, Donna came out of the bedroom, went into the

bathroom, and slammed the door. Clifton told petitioner that he was leaving. The two of them went

outside and sat together in Clifton’s car for a moment, and Clifton urged petitioner to come back

to Arkansas with him. Petitioner did not want to do that, and Clifton left. On cross-examination,

Clifton testified that he did not see Donna hit petitioner or see any injury to petitioner.

¶ 23 Dr. Neu also testified in the defense case to his evaluation of petitioner in September 2003.

He testified that petitioner had discussed during his interview that he was “quite fearful of Donna,”

that on one occasion she had caused him to bleed after striking him with a broomstick, that on

another occasion she had stabbed him in the nose with a knife, and that Donna possessed a gun,

which she was “not afraid to use.” Dr. Neu testified that petitioner had recounted that he felt fearful

for his life; he was fearful that Donna or Jerome might be plotting to kill him, as he would often

hear them talking and felt left out when they would not include him in conversations. Dr. Neu

stated that petitioner told him that on the day of the incident, Donna “ ‘busted his lip’ ” and had

been hitting him that day. According to Dr. Neu, petitioner “claimed during the evaluation that he

felt as though his life was in danger so he claimed that he felt that he had to do what he did.”

¶ 24 Dr. Neu further testified to the results of tests he had administered to petitioner, which showed

that petitioner had IQ scores in the bottom one percentile of the population. Petitioner was only

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able to read basic words and had a limited vocabulary. Dr. Neu would often have to rephrase

questions to him. Petitioner’s insight, judgment, and impulse control were limited by his cognitive

impairments, and he lacked the reasoning abilities of a person with a higher IQ. Dr. Neu testified

that, at the time of his evaluation, petitioner also had a diagnosis of major depression, which was

severe with psychotic features. On cross-examination, Dr. Neu testified that petitioner told him

that neither Donna nor Jerome had never pulled a gun on him and that Jerome had never done

anything to him physically.

¶ 25 In closing argument, petitioner’s counsel argued that nothing about the shootings was

planned. Counsel argued that the evidence showed that petitioner was scared that Donna and

Jerome were going to hurt him following the argument that night, and thus he believed, albeit

unreasonably, that he needed to defend himself by shooting them. The jury was instructed on the

issues of self-defense and second degree murder, and petitioner’s counsel argued that he should be

found guilty of second degree murder, not first degree murder.

¶ 26 The jury returned a verdict finding petitioner guilty of first degree murder as to both Donna

and Jerome. Based upon his conviction for murdering more than one victim, the trial court imposed

a mandatory sentence of natural life imprisonment. See 730 ILCS 5/8-1(a)(1)(c)(ii) (West 2000).

¶ 27 Petitioner filed a direct appeal, in which he raised four principal issues. Two of these issues

presented arguments that his videotaped statement should have been suppressed based on

testimony by Dr. Neu that he did not understand the Miranda warnings he had been given. See

infra ¶¶ 47-48. Petitioner also raised issues involving the eliciting of hearsay evidence at trial and

the questioning of jurors during jury selection. This court affirmed petitioner’s conviction. People

v. White, 402 Ill. App. 3d 1193 (2010) (table) (unpublished order under Illinois Supreme Court

Rule 23). The supreme court thereafter denied leave to appeal. People v. White, 239 Ill. 2d 586

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(2011) (table).

¶ 28 In May 2021, the pro se petition for postconviction relief that is the subject of this appeal was

filed in the circuit court. It presented three claims. First, it asserted that petitioner’s right to

effective assistance of counsel had been violated when his trial counsel failed to inform him of his

right to testify at trial.1 Petitioner alleged that counsel never spoke to, advised, or informed him of

his right to testify. He stated that his counsel’s failure to discuss with and prepare him to testify as

to his fear of Donna, the constant mental and physical abuse suffered at her hands, and the role

these circumstances played in the events leading to the shooting denied the jury important

testimonial evidence. This claim was supported by petitioner’s own affidavit in which he averred

that his trial counsel never talked to him about testifying. He further averred in his affidavit that

he wanted to testify and “tell the jury how Donna would always hit me and beat on me and call me

names all the time. I wanted them to know how scared I was of her and how she had stabbed me

before and threatened to shoot me.”

¶ 29 Second, the petition asserted a claim of ineffective assistance in that trial counsel “failed to

conduct a proper pre-trial investigation of [petitioner’s] domestic background and his mental

capacity,” which “could have led to the trial court ruling differently on the question of whether

[petitioner’s] statement to the police was made knowingly and voluntarily.” Third, the petition

asserted a claim that petitioner’s mandatory sentence of natural life in prison violated article I,

section 11 of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), as applied to him, because the

trial court was prevented from considering his intellectual disability as a mitigating factor.

¶ 30 The trial court reviewed the petition, found that all claims raised in it were frivolous and

1 The petition also asserted a related claim that the trial court failed to admonish him of his right to testify and to ensure that his waiver of that right was knowing and voluntarily. Petitioner does not pursue this claim on appeal.

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patently without merit, and summarily dismissed the petition. Petitioner appeals this ruling.

¶ 31 II. ANALYSIS

¶ 32 A. Advising Petitioner of Right to Testify

¶ 33 Petitioner’s first contention on appeal is that he presented an arguable claim that he was

denied effective assistance of counsel due to his counsel’s complete failure to advise him that he

had the right to testify in his own defense. He contends that if he had been allowed to testify and

to explain in his own words why he shot Donna and Jerome, there is an arguably reasonable

probability that he would have been found guilty only of second degree murder.

¶ 34 Summary dismissal of a postconviction petition is proper in cases where the trial court

conducts an independent examination of it within 90 days of filing and, taking the allegations as

true, “determines the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2)

(West 2022). Generally, a petition only needs to state the “gist” of a constitutional claim to avoid

summary dismissal. People v. Hodges, 234 Ill. 2d 1, 9 (2009). A petition may be dismissed at this

first stage of postconviction proceedings where it has no arguable basis in law or fact, meaning it

relies on an indisputably meritless legal theory or fanciful factual allegations. Id. at 16-17.

¶ 35 To survive summary dismissal, a petitioner is required only to present a limited amount of

detail, not formal legal argument or citations to authority. People v. Hatter, 2021 IL 125981, ¶ 24.

However, this does not mean that a pro se petitioner is excused from providing factual details to

support the claim that an alleged constitutional violation occurred. Id. A petition alleging

nonfactual and nonspecific assertions that merely amount to conclusions will not survive summary

dismissal. People v. Morris, 236 Ill. 2d 345, 354 (2010). Our standard of review is de novo, and

we may affirm summary dismissal on any basis supported by the record. People v. Thompson,

2022 IL App (1st) 200463, ¶ 24.

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¶ 36 A petition alleging ineffective assistance of counsel may not be summarily dismissed at the

first stage of postconviction proceedings if (1) it is arguable that counsel’s performance fell below

an objective standard of reasonableness and (2) it is arguable that the petitioner was prejudiced by

that deficient performance. Hodges, 234 Ill. 2d at 17; accord People v. Joiner, 2024 IL 129784,

¶ 33. Both prongs of this test must be satisfied. People v. Bush, 2022 IL App (1st) 210509, ¶ 31.

¶ 37 In this instance, taking the allegations of the petition as true, we accept petitioner’s argument

that his counsel’s complete failure to advise him of his right to testify satisfies prong (1) above.

See United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992). Thus, the issue is whether the

petition makes an arguable showing as to prong (2), i.e., that petitioner was arguably prejudiced

by the deficient performance. This requires a showing by petitioner that “it is arguable that the

outcome of his case would have been different absent the deficient representation.” (Emphasis in

original.) People v. Wilson, 2013 IL App (1st) 112303, ¶ 20; accord Joiner, 2024 IL 129784, ¶ 37.

¶ 38 Petitioner’s contention on this point is that it is arguable that the jury would have found him

guilty only of second degree murder, not first degree murder, if he had been allowed to take the

stand and testify to his reasons for shooting Donna and Jerome. Regarding the testimony petitioner

wanted to provide, he states in his affidavit, “I wanted to tell the jury how Donna would always

hit me and beat on me and call me names all the time. I wanted them to know how scared I was of

her and how she had stabbed me before and threatened to shoot me.” In the petition itself, petitioner

also mentions wanting “to testify as to his fear of [Donna], the constant mental and physical abuse

at the hands of [Donna], and the role these circumstances played in the events leading to the

shooting of [Donna].”

¶ 39 We conclude that nothing about this proposed testimony makes it arguable that petitioner’s

conviction would have been mitigated to second degree murder if petitioner had been allowed to

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present it. The offense of second degree murder is committed when a person commits the offense

of first degree murder and, at the time of the killing, he believes that his use of force is necessary

to prevent “imminent death or great bodily harm” to himself or another, but his belief is

unreasonable. 720 ILCS 5/9-2(a)(2), 7-1 (West 2000); see People v. Reid, 179 Ill. 2d 297, 308

(1997). To reduce an offense from first degree murder to second degree murder, the burden is on

the defendant to prove that he believed that his use of force was necessary. Reid, 179 Ill. 2d at 308.

¶ 40 In our view, the key shortcoming in petitioner’s affidavit and petition is that they present no

facts suggesting that petitioner believed he faced imminent death or great bodily harm at the time

he shot Donna and Jerome. At best, they show that petitioner was frequently subjected to non-

lethal physical and verbal abuse by Donna, that he was scared of her, and that on past occasions

she had stabbed him and threatened to shoot him. However, these facts involving her past conduct

toward him have no bearing on whether he believed he faced “imminent death or great bodily

harm” to himself at the moment of the shootings, which the shootings were necessary to prevent.

720 ILCS 5/9-2(a)(2), 7-1 (West 2000); Reid, 179 Ill. 2d at 308. This is particularly true where the

trial evidence showed that both Donna and Jerome were laying on their beds with their bedroom

doors closed immediately prior to being shot and that neither victim had a gun in hand.

Accordingly, it is not arguable that, if petitioner had testified to the facts set forth in his affidavit,

the jury would have been provided with the evidence necessary to alter the outcome of his trial to

a second degree murder conviction.

¶ 41 Several points bolster our conclusion that presenting these facts would not arguably change

the outcome of petitioner’s trial. Primarily, this is clearly the defense that petitioner’s counsel

attempted to mount on his behalf at trial. As such, the facts set forth in petitioner’s affidavit were

all before the jury through petitioner’s videotaped statement and the testimony of the defense

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witnesses, particularly the testimony of Dr. Neu. There was sufficient evidence to warrant a jury

instruction on second degree murder, but that evidence was not strong, particularly as to the belief

of imminent death or great bodily harm. Nevertheless, counsel forcefully made the argument to

the jury that the direct and circumstantial evidence supported a conviction for second degree

murder, and the jury rejected this argument. While petitioner argues that Assistant State’s Attorney

Daly consciously shaped his statement to limit its ability to support a defense and that Dr. Neu’s

testimony was filtered through his own perceptions and undermined on cross-examination, the

problem remains that the facts in petitioner’s affidavit are not facts that would mitigate his

conviction to second degree murder. As the petition and affidavit fail to show that it is arguable

that the petitioner was prejudiced by counsel’s deficient performance, we affirm the summary

dismissal of this claim.

¶ 42 B. Understanding of Miranda Warnings as Basis for Suppression

¶ 43 Petitioner’s second contention is that he presented an arguable claim that he was denied

effective assistance by trial counsel’s failure to seek suppression of his statement on the grounds

that petitioner did not understand the Miranda warnings given to him prior making it. In support

of this argument, petitioner cites the opinion expressed by Dr. Neu in his report of September 2003

that petitioner would have been unable to understand his Miranda warnings. Petitioner also cites

the facts relied upon by Dr. Neu that served as the basis for this opinion. Petitioner argues that Dr.

Neu’s opinion provided an arguably meritorious basis for suppression and that counsel was

therefore ineffective for failing to rely on it as grounds for suppression.

¶ 44 The State first responds that the argument as formulated on appeal is different than the claim

raised in the petition and that forfeiture applies it for this reason. See supra ¶ 29. However, we

agree with petitioner that his pro se phrasing of the claim in his petition sufficiently encompasses

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this argument as advanced on appeal. We therefore reject the State’s first argument for forfeiture.

¶ 45 The State fares better on its second argument for forfeiture, which is that the present claim is

“a repackaged version of the argument this Court rejected on direct appeal.” It argues for this

reason that principles of res judicata and forfeiture apply to bar consideration of this claim.

¶ 46 “[I]n Illinois, defendants are required to raise ineffective assistance of counsel claims on

direct review if apparent from the record.” People v. Veach, 2017 IL 120649, ¶ 46 (citing People

v. Kokoraleis, 159 Ill. 2d 325, 328 (1994)). A defendant who fails to raise an ineffective assistance

claim on direct appeal risks forfeiting that claim as grounds for later postconviction relief. Id. ¶ 47.

This is because a postconviction petition offers a defendant the opportunity to mount a collateral

attack on the underlying judgment, but “ ‘the attendant proceeding is not a substitute for, or an

addendum to, direct appeal.’ ” Id. ¶ 46 (quoting Kikoraleis, 159 Ill. 2d at 328). Accordingly,

principles of res judicata and forfeiture have long been recognized to preclude consideration in

postconviction proceedings of claims that were or could have been earlier raised on direct appeal.

Id. Any issues that could have been raised on direct appeal are forfeited. People v. Simpson, 204

Ill. 2d 536, 551 (2001). Moreover, where the issue of the effectiveness of trial counsel has been

determined on direct appeal, the “addition of somewhat different allegations of incompetence” in

a postconviction petition will not overcome the application of res judicata. People v. Albanese,

125 Ill. 2d 100, 105 (1988). Summary dismissal of a claim barred by res judicata or forfeiture is

proper, as such a claim is necessarily frivolous or patently without merit. People v. Blair, 215 Ill.

2d 427, 445 (2005).

¶ 47 In petitioner’s direct appeal, he raised two arguments that touched upon the issue of his lack

of understanding of the Miranda warnings given and the opinion expressed by Dr. Neu on this

matter following the September 2003 evaluation. Petitioner’s first argument was that the trial court

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erred in denying the motion to suppress when it relied too heavily on its own observation of his

videotaped statement and “did not adequately consider [Dr. Neu’s] conclusion that [petitioner] was

unable to understand the Miranda warnings.” Among the evidence that petitioner argued the trial

court failed to consider was the report submitted to the court by Dr. Neu opining that petitioner

was unable to understand the Miranda warnings and explaining the basis for this opinion. This

court rejected this argument, finding it within the province of the trial court to determine the weight

to be given to Dr. Neu’s testimony relative to other evidence presented at the suppression hearing.

¶ 48 Petitioner’s second argument on direct appeal that touched on this topic was that his counsel

had been ineffective during the suppression hearing in failing to “elicit[ ] testimony from Dr. Neu

stating that he found [petitioner] unable to understand his Miranda warnings.” In making this

argument, petitioner again relied on the statement Dr. Neu’s September 2003 report. Petitioner

criticized his trial counsel for using Dr. Neu’s testimony only to focus on petitioner’s low IQ

without further “eliciting how that low IQ would impact his understanding of Miranda warnings.”

This court again rejected this argument, reasoning that counsel’s decision to argue that petitioner’s

statement was the product of police coercion due to his low IQ, rather than that he was unable to

understand his Miranda warnings, constituted a reasonable trial strategy. We noted that the record

reflected that this was a conscious decision by counsel to strike the allegation from the original

motion to suppress that petitioner “was incapable and unable to appreciate and understand the full

meaning of his Miranda rights” and not to include this allegation in the amended motion.

¶ 49 We find the State’s argument that res judicata applies here to be well-taken. Even if the

petition presents “somewhat different allegations of incompetence,” the issue of trial counsel’s

effectiveness on this point is res judicata. Albanese, 125 Ill. 2d at 105. The doctrine of forfeiture

also applies here, because this is a claim that petitioner could have presented on direct appeal. It is

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clear from the preceding paragraphs that the necessarily factual predicate for this argument existed

in the record at the time of direct appeal.

¶ 50 Petitioner disputes this and argues in his reply brief that the “crux” of his present claim of

ineffective assistance was not part of the record at the time of direct appeal, that being “counsel’s

motivation for failing to base his motion on Dr. Neu’s determination that [petitioner] was

intellectually incapable of understanding the Miranda warnings.” We disagree that the record was

inadequate to resolve the claim. Our supreme court has rejected the argument that a claim of

ineffective assistance cannot be resolved on direct appeal where the record lacks an indication of

defense counsel’s motivation for a course of conduct. See Veach, 2017 IL 120649, ¶¶ 49-50.

¶ 51 In this case, the state of the record at the time of direct appeal was adequate for the court to

have resolved the present claim of ineffective assistance. Even though counsel’s precise motivation

was not stated on the record, there was evidence strongly suggesting an explanation for counsel’s

decision to strike the allegation that petitioner was incapable of understanding the Miranda

warnings. Counsel statements in court on January 10, 2006, and February 15, 2006, show that she

made the decision to strike this allegation immediately after consulting with the defense’s retained

psychologist, Dr. Lesko, following the receipt of reports by the psychologist and psychiatrist

retained by the State to evaluate petitioner and address the issue of his understanding of Miranda.

The reasonable inference is that counsel determined following this consultation with Dr. Lesko

that the defense lacked testimony from Dr. Lesko or the other mental health professionals to

advance this argument for suppression. This also explains why counsel relied at the suppression

hearing on the testimony of Dr. Neu instead of Dr. Lesko but was careful not to elicit opinions

concerning petitioner’s understanding of Miranda. Again, the point is not to resolve this issue but

to explain that this argument for ineffective assistance could have been decided on direct appeal.

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¶ 52 In conclusion, principles of res judicata and forfeiture apply to bar consideration of

petitioner’s second claim of ineffective assistance. For this reason, this claim necessarily meets the

standard of being frivolous or patently without merit, and summary dismissal of it is affirmed.

¶ 53 C. Sentence in Violation of Proportionate Penalties Clause

¶ 54 Petitioner’s final contention on appeal is that he presented an arguable claim that the

mandatory life sentence imposed due to his murdering of multiple victims violates his rights under

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

applied to him. Petitioner was sentenced pursuant to a statute that required the trial court to impose

a sentence of natural life imprisonment because he was “found guilty of murdering more than one

victim.” 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2008). Petitioner seeks to raise an as-applied

challenge to the constitutionality of the mandatory life sentence he received under this statute. He

contends that he was constitutionally entitled to receive a sentence that accounts for his lessened

culpability and his amenability to rehabilitation.

¶ 55 Petitioner relies most heavily on the notion that his intellectual disability mitigated his

culpability for the murders, by causing him to misread the intentions of Donna and Jerome as

homicidal, preventing him from recognizing that nonviolent solutions existed, and leading him to

act impulsively by shooting both victims. He contends also that both his culpability and the

seriousness of the offense was mitigated by the fact that he had suffered physical and psychological

abuse by Donna for over a decade. He argues that his life sentence cannot be justified on the

premise that he is beyond rehabilitation, as shown by the fact that his prior criminal history was

comprised of a single nonviolent misdemeanor conviction. He contends that the murders at issue

were the product of specific circumstances not likely to recur, thus suggesting he is unlikely to

commit further crimes or to pose a future danger to society. In light of all of these circumstances,

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he contends, his natural life sentence arguably “shocks the moral sense of the community.”

¶ 56 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. Relevant here, a sentence violates this clause where the

penalty imposed 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). No more precise

definition has been given of the kind of punishment that qualifies as such, because courts recognize

that standards of decency and fairness that shape the community’s moral sense will “evolve” over

time. Id. at 339. A court faced with such a challenge will “review the gravity of the defendant’s

offense in connection with the severity of the statutorily mandated sentence within our

community’s evolving standard of decency.” Id. at 340.

¶ 57 Petitioner’s claim that his mandatory life sentence is arguably unconstitutional is frivolous or

patently without merit. Initially, we agree with the State that this is a claim petitioner could have

raised on direct appeal; he did not, and the claim is forfeited for that reason. See Simpson, 204 Ill.

2d at 551. However, even if we overlook forfeiture, petitioner’s claim is foreclosed by the holdings

of People v. Taylor, 102 Ill. 2d 201 (1984); People v. Brown, 2012 IL App (1st) 091940; and

People v. Coty, 2021 IL 123972.

¶ 58 In Taylor, our supreme court recognized that the sentencing statute challenged by petitioner

is constitutional. It held that the proportionate penalties clause is not violated when a defendant

convicted of murdering multiple victims receives a mandatory sentence of natural life

imprisonment. Taylor, 102 Ill. 2d at 206. After reiterating that the proportionate penalties clause

does not require that the possibility of rehabilitation be given greater weight in determining a

proper penalty than the seriousness of the offense, the court stated:

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“We conclude that the legislature considered the possible rehabilitation of an offender, as

well as the seriousness of the offense of multiple murders, in determining that in the public

interest there must be a mandatory minimum sentence of natural life imprisonment. The

rehabilitative objective of article I, section 11, should not and does not prevent the legislature

from fixing mandatory minimum penalties where it has been determined that no set of

mitigating circumstances could allow a proper penalty of less than natural life for the crimes

of two or more murders.” Id.

¶ 59 The court in Taylor was not addressing this argument with specific regard to a defendant with

an intellectually disability. However, the later cases of Brown and Coty make clear that this

otherwise constitutional mandatory life sentence is not rendered unconstitutional when it is

imposed on a defendant with intellectual disabilities.

¶ 60 In Brown, 2012 IL App (1st) 091940, this court considered a substantially identical challenge

to this same mandatory sentence, under both the proportionate penalties clause and the Eighth

Amendment (U.S. Const., amend. VIII). Citing Taylor, we made quick dispatch of rejecting the

defendant’s as-applied argument that his intellectual disability rendered his life sentence

unconstitutionally disproportionate to the gravity of his convictions for two murders. Id. ¶ 60.

¶ 61 We then turned to whether the federal or state constitutional provisions categorically

prohibited the practice of imposing a mandatory life sentence on an intellectually disabled adult

convicted of multiple homicides. Id. ¶¶ 61-80. In our analysis, we first found no objective

indication that a national or community consensus existed opposing this sentencing practice. Id.

¶¶ 64-65. Second, we considered how the characteristics of intellectual disability affected a

criminal defendant’s culpability, quoting Atkins v. Virginia, 536 U.S. 304 (2002), and stating:

“ ‘[Intellectually disabled persons] frequently know the difference between right and wrong

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and are competent to stand trial. Because of their impairments, however, by definition they

have diminished capacities to understand and process information, to communicate, to

abstract from mistakes and learn from experience, to engage in logical reasoning, to control

impulses, and to understand the reactions of others. There is no evidence that they are more

likely to engage in criminal conduct than others, but there is abundant evidence that they

often act on impulse rather than pursuant to a premeditated plan, and that in group settings

they are followers rather than leaders. Their deficiencies do not warrant an exemption from

criminal sanctions, but they do diminish their personal culpability.’ ” Brown, 2012 IL App

(1st) 091940, ¶ 67 (quoting Atkins, 536 U.S. at 318).

Third, we considered the severity of the offense, recognizing that first degree murder is the highest

crime known to the law and deserving of the most severe forms of punishment. Id. ¶ 68. Finally,

we considered that a natural life sentence is the second most severe penalty permitted by law, albeit

one that has been held constitutional by our state supreme court. Id. ¶ 69.

¶ 62 After taking the above factors into consideration, we held that the defendant had not

demonstrated his sentence to be unconstitutionally disproportionate to the offense of murdering

multiple victims. Id. ¶ 70. We discussed the penological justifications for this sentencing practice,

including retribution, deterrence, incapacitation, and rehabilitation, noting that choosing among

them is the role of the legislature. Id. ¶ 75 (citing Graham v. Florida, 560 U.S. 48, 71 (2010)). We

reasoned that society’s interest in retribution applies to an intellectually disabled offender, whose

personally culpability is reduced, not eliminated, because of their disability; and we found that the

goal of incapacitation was served in the case before us. Id. ¶¶ 77, 79. And citing the above

discussion from Taylor, we reasoned that “the fact that this one particular goal [of rehabilitation]

is not served by the sentence at issue here does not render it invalid.” Id. ¶ 76.

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¶ 63 We recognize that, since this court’s decision in Brown, the law has undergone substantial

development with respect to sentencing practices that mandate life sentences for juvenile offenders

convicted of homicide. However, these developments in the law of juvenile sentencing have no

bearing on this case, where petitioner was 36 years old at the time of the offense. And in Coty, our

supreme court rejected the argument that the rationale prohibiting life sentences without parole for

juveniles extends to offenders with intellectual disabilities under the proportionate penalties

clause. Coty, 2021 IL 123972, ¶¶ 14-17, 44. In other words, the court rejected the notion that the

proportionate penalties clause requires that the “ ‘attendant characteristics of the defendant’s

intellectual disability and the fact that this disability diminishes both his culpability and the need

for retribution’ ” be given consideration by a trial court imposing a statutorily mandated life

sentence for a non-homicide offense. (Cleaned up.) Id. ¶ 16, 44 (quoting People v. Coty, 2018 IL

App (1st) 162383, ¶ 87.)

¶ 64 The proportionate penalties clause challenge at issue in Coty was by an intellectually disabled

adult defendant who had received a mandatory natural life sentence for a conviction of predatory

criminal sexual assault of a child, which followed a prior conviction for aggravated criminal sexual

assault. See 720 ILCS 5/12-14.1(b)(2) (West 2004). As with the statute at issue concerning life

sentences for the murdering of multiple victims, the supreme court had previously found this

mandatory sentence constitutional in a case not involving a defendant with intellectual disabilities.

See People v. Huddleston, 212 Ill. 2d 107, 145 (2004). Thus, the court in Coty addressed whether

anything about a defendant with intellectual disabilities convicted of the same offenses required a

different result. Coty, 2020 IL 123972, ¶ 32.

¶ 65 The court reasoned that while an intellectual disability may lessen a defendant’s culpability

to the extent of precluding a sentence involving the death penalty, it is a “ ‘two-edged sword’ ” in

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that it can increase the probability of future dangerousness. Id. ¶¶ 33-34 (citing Atkins, 536 U.S. at

318, 320, and quoting Penry v. Lynaugh, 492 U.S. 302, 324 (1989)). The court cited the example

that an intellectual disability may result in diminished impulse control, thereby increasing the risk

that such a defendant poses a future danger to the community. Id. ¶ 35 (citing People v. Heider,

231 Ill. 2d 1, 20-21 (2008)). The court also reasoned that a defendant’s intellectual disabilities

result in a lower potential for rehabilitation than an offender without such deficits. Id. ¶ 37. Also,

the static nature of an intellectual disability makes such a defendant different than a juvenile, whose

mental development and maturation likely increases the potential for rehabilitation over time. Id.

¶¶ 37-40. Accordingly, the court held that the defendant’s sentence of natural life imprisonment

did not violate the proportionate penalties clause. Id. ¶¶ 42, 44.

¶ 66 Petitioner attempts to distinguish Coty by arguing that mandatory life sentences for repeat

child sex offenders are appropriate given their high rates of recidivism, which he argues is not a

concern in his case. We find the attempt to distinguish Coty on this basis unavailing. Ultimately,

the holding of Coty that the proportionate penalties clause does not entitle an intellectually disabled

adult defendant to have factors attendant to their intellectual disability taken into account when

convicted of a non-homicide offense for which a natural life sentence is mandated by statute

renders it inarguable that such a defendant is entitled to have these factors considered when being

sentenced upon conviction for multiple homicides. The proportionate penalties clause argument

raised by petitioner is indisputably meritless, and summary dismissal of this claim is affirmed.

¶ 67 III. CONCLUSION

¶ 68 For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 69 Affirmed.

¶ 70 JUSTICE PUCINSKI, specially concurring:

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¶ 71 The petitioner made it clear in his petition that he felt the failure of the court to advise him of

his right to testify, or not, was error. The Illinois Supreme Court has made it clear that the trial

court is under no duty to admonish the defendant of his right to testify or not. People v. Smith, 176

Ill. 2d 217, 234-35 (1997). However, in this case, there was sufficient evidence that the defendant

was intellectually challenged, and it could be that he did not understand any discussion with his

attorney about his rights. I think the trial court should have probed to determine if the decision not

to testify was knowingly made by this defendant. I agree with the majority that even if the

defendant had testified there is little chance that the result would have been different, where the

evidence was clear. But taking extra steps with a defendant who is intellectually challenged would

provide a fuller picture of his or her decision making.

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