People v. Wilson

2021 IL App (1st) 192048

Opinion

2022 IL App (1st) 192048

SIXTH DIVISION February 4, 2022

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

No. 1-19-2048

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 07 CR 10824 ) JABER WILSON, ) Honorable ) Timothy Joyce, Defendant-Appellant. ) Judge Presiding.

JUSTICE MIKVA delivered the judgment of the court, with opinion. Justice Oden Johnson concurred in the judgment and opinion. Presiding Justice Pierce concurred in part and dissented in part, with opinion.

OPINION

¶1 This is an appeal from the second-stage dismissal of defendant Jaber Wilson’s

postconviction petition. Following a jury trial, Mr. Wilson was convicted of first degree murder

and sentenced to 65 years in prison. In his petition, Mr. Wilson asserted, among other things,

(1) actual innocence based on the affidavit of a previously unknown eyewitness who would testify

that he saw another man shoot and kill the victim and (2) that, as applied to him, a de facto life

sentence for a crime committed when he was 19 years old violates the proportionate penalties

clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). The circuit court dismissed Mr.

Wilson’s amended petition, concluding that he had failed to make a substantial showing of a

constitutional violation under either theory. Mr. Wilson now appeals. For the reasons that follow, No. 1-19-2048

we disagree with the circuit court’s assessment of the legal sufficiency of both of Mr. Wilson’s

claims and reverse and remand this matter for a third-stage evidentiary hearing.

¶2 I. BACKGROUND

¶3 The victim in this case, Geno Moffett, was fatally shot shortly after 11 p.m. on September

20, 2006, at the Buchanan Barbershop, located at 430 East 75th Street in Chicago. Following a

two-day jury trial, Mr. Wilson was found guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West

2004)) and sentenced to 65 years in prison—40 years for the murder (730 ILCS 5/5-4.5-20(a)

(West 2008)) plus a mandatory firearm enhancement of 25 years (id. § 5-8-1(a)(1)(d)(iii)).

¶4 A. Mr. Wilson’s Trial

¶5 The evidence presented at trial, though already summarized by this court in Mr. Wilson’s

earlier appeals, is revisited and set out again here to provide context for Mr. Wilson’s actual

innocence claim and to acknowledge certain details that, in light of the new evidence Mr. Wilson

has submitted in support of that claim, may bear additional scrutiny.

¶6 1. The Physical Evidence

¶7 An autopsy confirmed that Mr. Moffett died of gunshot wounds to the abdomen, lower

back, and head. According to the assistant medical examiner, those wounds were not the result of

close-range firing, meaning the shooter had to have been more than a foot and a half away. Two

bullets were recovered from Mr. Moffett’s body and a third, fired from the same gun, was found

on the floor of the barbershop. The State’s ballistics expert concluded that the murder weapon was

likely a .357 or .38 special caliber Colt revolver. When the shooting occurred, Mr. Moffett was

wearing blue jeans and a brown T-shirt. In photographs and a video of the crime scene that was

played for the jury, blood stains are visible on the carpet behind the front desk of the barbershop

and an orange floppy hat and cell phone can be seen lying on the floor. The video also shows that

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vertical blinds installed in the storefront windows of the barbershop were drawn back from the

center, partially blocking the left and far right edges of the windows but leaving a large section in

the middle unobscured, such that the interior of the barbershop was visible from the outside.

¶8 2. The State’s Eyewitnesses

¶9 Lacking any physical evidence suggesting that Mr. Wilson was the shooter, the State’s case

against him hinged on the testimony of two eyewitnesses: Jamique Walker and Markis Robinson.

The accounts these witnesses provided were largely, though not entirely, consistent with each

other. Mr. Walker testified that he cut hair at the barbershop and that on the night of the shooting

he was in possession of a laptop belonging to the victim, which he planned to return to Mr. Moffett

that night. Mr. Walker had gone to get the laptop and was on his way back to the barbershop when

he saw Mr. Robinson, a long-time friend of Mr. Moffett’s. Mr. Robinson testified that he had

borrowed Mr. Moffett’s Range Rover and likewise planned to return it to him that night. Mr.

Robinson took the laptop for Mr. Moffett and also arranged to meet Mr. Walker at the barbershop

to get a haircut. He arrived 10 to 12 minutes later, Mr. Walker cut his hair, and that is when Mr.

Moffett arrived, at around 11 p.m., with an unidentified woman who waited outside the barbershop

for him.

¶ 10 Mr. Walker testified that he had finished cutting Mr. Robinson’s hair and was having a

“heated conversation” with Mr. Moffett about a new real estate law, when a man named Eric

walked in with another client of Mr. Walker’s, known to him only as “J. Bird,” a young man Mr.

Walker did not know, and “some other little kids,” although the “kids” soon left the barbershop.

Mr. Walker later identified J. Bird as the defendant, Mr. Wilson. According to Mr. Walker, Eric

was wearing a white T-shirt and J. Bird was wearing “[l]ike a powder blue jacket with blue sleeves,

white T-shirt, some jeans, and a hat.” Mr. Robinson likewise testified that a person named J. Bird,

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whom he had only met once before, arrived shortly after 11 p.m. with two men Mr. Robinson knew

as Eric and Reese. Mr. Robinson said that J. Bird was wearing a hoodie on the night of the shooting,

though he could not recall what color it was, and may have also been wearing a skull cap.

¶ 11 J. Bird, Eric, and Reese sat down, and Mr. Walker began to cut Eric’s hair while still talking

to Mr. Moffett. Mr. Robinson testified that the man known as J. Bird then approached him and

accused him of trying to rob him on a prior occasion. When Mr. Robinson denied the accusation,

J. Bird stood up and drew a small black revolver from his waistband. Mr. Moffett, unarmed,

attempted to intervene and, when he failed to comply with J. Bird’s instruction to get back, J. Bird

shot him in the stomach. Mr. Robinson testified that Mr. Moffett backed away, telling J. Bird it

was “okay,” but J. Bird shot him again in the shoulder and, when he fell to the ground, shot him a

third time in the neck. All of this happened very quickly, according to Mr. Robinson, who insisted

that he had remained seated nearby until the last shot was fired and thus had a clear line of sight.

Only when Mr. Moffett fell to the ground did Mr. Robinson flee to the back of the barber shop.

From there, he saw the man known as J. Bird and later identified as Mr. Wilson run out of the

barbershop.

¶ 12 Mr. Walker provided a similar account of the shooting. According to him, J. Bird and Mr.

Robinson were having “a heated conversation.” J. Bird asked Mr. Robinson, “[w]here do I know

you from?” and Mr. Robinson responded, “you know where the f*** you know me from.” J. Bird

then said, “you are the stupid mother f*** that tried to rob me, but your mother f*** gun got

jammed.” Alarmed by the intensity of the exchange, Mr. Walker asked the others if the two were

being serious. According to him, Mr. Moffett “took it upon himself to get up out of the seat and

approach J. Bird,” telling him to “calm down with all that reckless talk.” J. Bird then rose from his

seat and drew a long-nose pistol, prompting Mr. Moffett to say “I ain’t scared of no mother f***

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gun.” Mr. Walker was heading toward the back of the barbershop, away from the confrontation,

when he heard the first shot. According to him, J. Bird shot Mr. Moffett in the leg, Mr. Moffett

fell down and moved to the wall where he “received another shot,” and then, as he lay on the floor

screaming, “the last shots came.” Mr. Walker testified that he and Mr. Robinson took shelter in

the stairwell behind the shop.

¶ 13 Mr. Robinson testified that he waited a few minutes before leaving the barbershop, driving

away in the Range Rover he had planned to return to Mr. Moffett. He did not get far before he was

stopped by police, who told him that a Range Rover had been involved in a shooting. Mr. Robinson

acknowledged that, scared and confused, he told the police that he had just been passing by, that

he had heard the shots and saw people running but had not actually witnessed the shooting. After

he was brought in overnight for questioning, however, he changed his story, ultimately identifying

Mr. Wilson as the shooter from a photo array. The next day, the police took Mr. Robinson to testify

before a grand jury, but Mr. Robinson was scared and left the courthouse without testifying. It was

not until he was arrested in April 2007 that he finally testified before the grand jury.

¶ 14 Mr. Walker testified that immediately after the shooting, he called the police from the

stairwell of the barbershop. He heard people fleeing the building and, when the commotion died

down, went upstairs and saw Mr. Moffett on the floor by the front desk. When the police arrived,

Mr. Walker told them “J. Bird did it.” They brought him to the station and showed him a photo

array, from which he was not able to make an identification. After telling the officers about a recent

injury that J. Bird had suffered, however, a second photo array was prepared, and Mr. Walker

identified Mr. Wilson as J. Bird from that array. Mr. Walker also identified the orange floppy hat

and cell phone found near the barbershop’s front desk as items belonging to Mr. Moffett.

¶ 15 On cross-examination, defense counsel explored the fact that, according to Mr. Walker, the

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shooter had used his right hand. Mr. Walker agreed on cross-examination that J. Bird had been

shot in the right hand a few weeks before the shooting at the barbershop and “hadn’t been on the

streets for a while.” He explained, however, that J. Bird had “used both hands” to fire the gun,

holding the gun in his right hand but using his left hand “to help it out.” Mr. Walker could not

recall specifically if he had told the police this but said he hoped he had.

¶ 16 A black-and-white surveillance video showing the outside of the barbershop on the night

of the shooting was then played for the jury, which Mr. Walker was permitted to narrate. According

to the trial transcripts, Mr. Walker was able to point out for the jury where in the video Eric could

be seen entering the barbershop wearing a white T-shirt and jeans, followed by a second individual

whom Mr. Walker did not know, J. Bird, and then a fourth person whom Mr. Walker also could

not identify. Mr. Walker testified that “the same guy [he] didn’t recognize” and “another person

[he] didn’t recognize who came in earlier” exited the barbershop a short time later. He indicated

for the jury the individuals he referred to as “kids.” Mr. Walker was apparently also able to point

out for the jury the point in the video, just after the shooting took place, when J. Bird ran out with

what Mr. Walker believed was a gun in his right hand, followed by Eric, who was still wearing a

barber’s cape, and “the other young man [Mr. Walker] didn’t know.” Sometime later, Mr. Walker

identified Mr. Robinson exiting the building, followed by Leo, a homeless man who was allowed

to sleep in the back office of the barbershop in exchange for helping to sweep up, and Mr. Walker

himself.

¶ 17 The video, which this court has viewed, is choppy, very grainy, and difficult to make out.

It depicts a number of individuals entering, exiting, and standing in front of the barbershop at

various times but none of them have recognizable facial features, and the tape would have had

little intrinsic value at trial absent Mr. Walker’s contemporaneous identifications. There are also

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several individuals depicted in the video who were not identified by Mr. Walker at trial, including

a man who can be seen entering the barbershop approximately two minutes after the group Mr.

Walker identified as Mr. Wilson, Eric, and the two unknown individuals entered the barbershop

together.

¶ 18 Mr. Walker acknowledged that he had a 2001 conviction for burglary and a pending charge

for forgery but testified that the assistant state’s attorneys he had met with had made him no threats

or promises in connection with his case. He acknowledged that, because he had been running to

the back of the building, he had seen all but the first gunshot indirectly, through the barbershop’s

mirrors.

¶ 19 3. Mr. Wilson’s Statement to Police

¶ 20 Portions of Mr. Wilson’s videotaped interrogation by the police on November 3, 2006,

were also played for the jury. Initially, Mr. Wilson flatly denied that he was at the barbershop on

the night of the shooting. After about 15 minutes, however, he acknowledged that he was there

and explained what happened in much the same way it is now explained by the new witness that

is the basis for his actual innocence claim. According to Mr. Wilson, the victim, Mr. Moffett, was

a lifelong friend of his, someone he “ran with” and who had “practically raised” him.

¶ 21 Mr. Wilson told the police that a man with a shirt wrapped around his face had tried to rob

the house where Mr. Wilson and a friend were staying some weeks before the shooting but that

the would-be robber’s gun had jammed. Mr. Wilson and his friend had wrestled the man to the

ground and taken the gun, only recognizing as he broke free and ran off that it was Mr. Robinson,

someone they both knew. On the night of the shooting, Mr. Wilson said that he was walking by

the barbershop with “all [his] guys” when he saw Mr. Robinson inside with the barber. Mr. Wilson

walked in and asked for a haircut, and Mr. Moffett struck up a conversation with him, saying that

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his Range Rover was for sale. Mr. Wilson, in part to taunt Mr. Robinson, said he also had

something for sale—a gun—and proceeded to describe the weapon they had confiscated from Mr.

Robinson during the botched robbery. Mr. Wilson then came right out and asked Mr. Robinson,

“[h]ey, don’t I know you from somewhere?” to which Mr. Robinson responded, “s***, n***, you

know where you know me from.”

¶ 22 According to Mr. Wilson, “[n]ext thing you know [the] front door come in slamming” and

a man that he and the others did not know entered and confronted Mr. Moffett. Mr. Wilson noticed

this but was not paying attention to Mr. Moffett’s altercation with this newcomer, as he was still

in a confrontation with Mr. Robinson.

¶ 23 Mr. Wilson said “Geno [referring to Mr. Moffett] and this man they get to arguing and

s***. Geno reach for his hip. Dude just shoot.” Mr. Wilson told the police that a total of five shots

were fired, but that as soon as the first shot rang out, everyone ran to the back of the barbershop.

Mr. Wilson described the chaos that followed, saying, “motherf***s in there basically confused

funna run into each other, n*** scared.” According to him, everyone was “running back and

forward” and “basically knowing they finna die.” When they could see that the shooter had left,

everyone ran back through the barbershop and out the front door of the building.

¶ 24 Mr. Wilson ran home, packed some clothes, and went to his sister’s house in Indiana, partly

because her boyfriend had been abusing her and she had asked him to come stay with her and

partly because he just “panicked” and had no idea what was going on. Mr. Wilson said he saw his

uncle, Joe, that night and told him, “man, Joe, I don’t know what the f*** is going on. Somebody

just came in and killed Geno. I think they was trying to kill us.”

¶ 25 When asked what the shooter looked like, Mr. Wilson said, “I told y’all, I didn’t really seen

[sic] him like that.” Mr. Wilson said the shooter was “a black guy,” because “[a]in’t no white

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people in the neighborhood,” but could give no further description.

¶ 26 4. Witnesses for the Defense

¶ 27 The defense called Officer Michael Edens, who testified about another man being arrested

with a revolver the night of the shooting, about 15 or 16 miles from the barbershop. The defense

also called Officer Doherty, who spoke with Mr. Walker on the night of the shooting. Mr. Walker

had told this officer that he only heard gunshots as he was running away to the basement of the

¶ 28 5. Jury Deliberations and Verdict

¶ 29 After deliberating for some time, the jury asked for and was shown both the surveillance

video and Mr. Wilson’s videotaped statement one additional time. The jury sent out a note

sometime later asking, “[i]f we don’t come with agreement, what then?” The court told them not

to concern themselves with that yet and to continue their deliberations. The jury reached a verdict

later that day, finding Mr. Wilson guilty of first degree murder and additionally finding that he

personally discharged the firearm that proximately caused Mr. Moffett’s death.

¶ 30 6. Sentencing

¶ 31 At the time the presentence investigation (PSI) report in this case was prepared, Mr. Wilson

was 21 years old. He was single and had five children, to whom he had made voluntary support

payments. Mr. Wilson told the investigator that he had identified as a member of the Gangster

Disciples from the ages of 14 or 15 to 21 but played no specific role within the gang’s structure

and had since then “left it alone” and “turned [his] life over to God.”

¶ 32 According to the PSI report, Mr. Wilson never knew his father, who was shot and killed

the year he was born. He and his four half-siblings were raised on the south side of Chicago by

their mother, grandmother, and great-grandmother. Mr. Wilson told the investigator that his

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mother was a drug addict throughout his childhood and, when he was 10 years old, the Department

of Children and Family Services (DCFS) had placed him in the legal custody of his grandmother.

¶ 33 Mr. Wilson was enrolled in special education classes “for learning and behavioral

problems” in the seventh and eighth grades. He recalled his grandmother taking him for a

psychological evaluation when he was 14 or 15 years old but said that he was never diagnosed

with a psychological disorder or prescribed any psychotropic medications.

¶ 34 In aggravation, the State argued that this was a shooting in a public place and that Mr.

Wilson had two prior felony convictions. He had been sentenced to probation on a drug charge

committed when he was 16 years old and to boot camp for illegally possessing a firearm when he

was 17. The State asked the trial court to sentence Mr. Wilson to more than the minimum sentence.

¶ 35 Defense counsel argued in mitigation that Mr. Wilson had had a “tragic upbringing” and a

history of special education placement. Counsel asked the court to impose only the minimum

sentence, pointing out that with the firearm enhancement, that would already be 45 years in prison.

¶ 36 Having considered all of these factors, the trial court concluded that a sentence of 40 years,

plus 25 years for the firearm enhancement, was necessary “to deter others from committing the

same crime.” We affirmed Mr. Wilson’s conviction on direct appeal. People v. Wilson, No. 1-08-

3493 (2011) (unpublished order under Illinois Supreme Court Rule 23).

¶ 37 B. Mr. Wilson’s Pro Se Petition

¶ 38 On August 23, 2012, Mr. Wilson filed a pro se postconviction petition arguing, among

other things, that his trial counsel was ineffective for failing to investigate and call a man named

Eric President, who, according to Mr. Wilson, would have testified that he arrived at the

barbershop with Mr. Wilson and would have corroborated what Mr. Wilson told the police: that

some other individual had entered the barbershop and shot Mr. Moffett.

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¶ 39 Mr. Wilson attached an affidavit to his petition swearing that he “tried on variety occasions

[sic] to retrieve an affidavit from Mr. Eric President that affiant was not the shooter” and that Mr.

President “told [a] number of people from the neighborhood throughout the years that affiant was

not the shooter.” Mr. Wilson explained that he was “an indigent citizen of Illinois,” he could not

afford a private investigator, it was “very difficult *** to obtain an affidavit from Mr. Eric

President,” and he had “tried everyway [sic] to obtain an affidavit from Mr. Eric President.”

¶ 40 The circuit court summarily dismissed Mr. Wilson’s petition as frivolous and patently

without merit. This court reversed. People v. Wilson, 2015 IL App (1st) 130879-U. We concluded

that “[n]one of [Mr. Wilson’s] factual allegations could be viewed as delusional or fantastic,” the

testimony he described, if presented at trial, would have corroborated what he had “consistently

maintained” happened on the night of the shooting, and that testimony would have undercut the

version of events testified to by Mr. Robinson and Mr. Walker. Id. ¶¶ 23, 25, 28. We noted both

that no physical evidence connected Mr. Wilson to the shooting and that the testimony of the

State’s eyewitnesses was called into question by the assistant medical examiner, whose opinion,

contrary to their testimony, was that the shots that killed Mr. Moffett had not been fired at close

range. In sum, although “[t]he record in this case raise[d] questions as to the defendant’s

allegations of fact,” it “[did] not ‘positively’ contradict them,” making summary dismissal

improper. Id. ¶ 30.

¶ 41 C. Mr. Wilson’s Amended Postconviction Petition

¶ 42 On remand, postconviction counsel was appointed to assist Mr. Wilson in amending or

supplementing his petition. Only two claims in that petition are at issue in this appeal: (1) that new

evidence uncovered by Mr. Wilson supports a claim of actual innocence and (2) that his de facto

life sentence violates the proportionate penalties clause.

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¶ 43 1. Actual Innocence

¶ 44 Mr. Wilson supplemented his amended petition with a claim of actual innocence, supported

by the June 24, 2016, notarized affidavit of a new witness, Lester Owens, who he claimed could

corroborate his account of what happened at the barbershop. Mr. Wilson submitted a handwritten

affidavit signed and notarized by Mr. Owens. In it, Mr. Owens explained that shortly before

11 p.m. on September 20, 2006, he was “driving down 72nd Dobson” on his way home when he

was stopped by a man named Danny Blackwell, someone Mr. Owens knew from the

neighborhood. Mr. Owens attested to the following sequence of events:

“That Blackwell was standing in front of his house alone when he stopped me and

asked me could I take him on 75th Vernon to meet an individual who owed him some

money before that individual left.

That I agreed to take him since the location wasn’t too far from the neighbor hood.

That Blackwell got into my car and I drove him to 75th Vernon, where I parked my

car on the right hand side of 75th Street right across from a barber shop.

That Blackwell stated that he would be right back and he exited my car and walked

into the barber shop that was across the street from where I parked.

That due to the large front window of the barber shop, which exposed the inside of

the shop I was able to see the inside of the shop. And I seen that there was about six guys

inside the shop but only one was getting his hair cut.

That Blackwell entered the shop walked up to the barber and greeted him with a

handshake then walked up to some other guy that was sitting to the right of the barber and

greeted him with a handshake.

That Blackwell then walked to the front of the shop and started talking to this guy

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that was wearing like a brown shirt and an orange hat.

That I didn’t know what they were talking about but like a minute into their

conversation the guy with the orange hat struck Blackwell in the face with his hand.

That Blackwell immediately pulled out a black hand gun pointed at the guy wearing

the orange hat and fired like two shots at the guy. When I seen the guy wearing the orange

hat fall to the floor I immediately pulled off and left Blackwell at the barber shop.”

¶ 45 Mr. Owens next saw Mr. Blackwell a few days later at a dice game at 68th Street and East

End Avenue. Mr. Blackwell was upset that Mr. Owens had left him at the barbershop and the two

“started exchanging insults.” Mr. Owens said he “knew what [Mr. Blackwell] was capable of” and

“didn’t feel comfortable around him,” so he walked to his car and started to leave. When he opened

the car door, however, Mr. Blackwell “shot [him] in [his] left eye and ran off.”

¶ 46 Mr. Owens explained that he never reported either shooting to the police because he “didn’t

want to be involved in the drama that came with it.” He had no idea that someone else had been

charged and convicted of murder in connection with the shooting at the barbershop until January

2016, when he met Mr. Wilson at the Pontiac Correctional Center. As to the details of that

encounter, Mr. Owens averred:

“That during my conversation with Wilson about the law he informed me that he

was wrongfully convicted for a murder that happened at a barber shop on 75th Vernon back

in 2006. I asked him what month did it happen because I was curious to know after hearing

the location and when he said September 20, I instantly knew what he was talking about.”

Mr. Owens further explained that he is willing to come forward with the truth now because it does

not “sit well” with him to know “that an innocent man is suffering for another man’s action.”

¶ 47 Mr. Wilson argued in his supplemented petition that Mr. Owens’s affidavit constituted

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newly discovered evidence because he had no idea that Mr. Owens witnessed the shooting until

they met in prison years later, that it was not cumulative of other evidence at trial, and that it was

material, as it “contradict[ed] the eyewitnesses that testified at trial, such that those witnesses’

testimony would be more closely scrutinized.”

¶ 48 2. De Facto Life Sentence

¶ 49 Mr. Wilson also claimed in his amended postconviction petition that, as applied to him, a

de facto life sentence of 65 years in prison violates the proportionate penalties clause of the Illinois

Constitution. Mr. Wilson, who was 19 years old at the time of the offense for which he was

convicted, cited People v. Harris, 2018 IL 121932, ¶ 48, decided nearly a decade after his

sentencing, in which our supreme court recognized that emerging adults may, with proper factual

support, assert youth-based, as-applied challenges to de facto life sentences. Because 18- and

19-year-olds “continue to display many of the same characteristics of immaturity and impulsivity

as younger teenagers,” Mr. Wilson argued, they should in proper cases receive the additional

sentencing protections afforded to juvenile offenders that were established by the United States

Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012).

¶ 50 Mr. Wilson’s appointed counsel presented detailed arguments for why Mr. Wilson’s

particular characteristics warranted such additional protections, stating in part:

“Jaber was hyperactive, but medication was not prescribed. [Citation.] This is not

to suggest that it necessarily should have been prescribed or that his grandmother, who

adopted him in 1988 and made valiant efforts and provided a stable home, had any

shortcomings. However, along with improper educational placement and insufficient

services, it indicates that Jaber had challenges that were not adequately addressed,

contributing to an often negative school experience, and that the impulsivity inherent in

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youth was exacerbated in his case.”

That Mr. Wilson’s “impulsivity issues” had “quieted with time and treatment,” counsel argued,

demonstrated that he “was not and is not irredeemable, with no rehabilitative potential,” and that

his de facto life sentence was thus grossly unfair. Counsel noted that education opportunities had

been withheld from Mr. Wilson in prison, “impacting his rehabilitative potential despite his best

efforts to progress.” He had participated in basic education and pre-GED programming but had

not qualified for GED programming.

¶ 51 Mr. Wilson also provided over 140 pages of attachments in support of his proportionate

penalties claim, including affidavits, school evaluations, DCFS records, and certificates of

achievement he earned while in prison. A psychological evaluation conducted when Mr. Wilson

was in fourth grade stated that he had been “expelled from at least one school due to his aggressive

behavior” and was “frequently cited for lack of self-control.” The psychologist noted that although

his IQ was above-average and, with the exception of spelling, he was performing at or above a

grade-appropriate level, his “adaptive functioning” was not what it should be. With limited coping

skills, Mr. Wilson dealt with his anxiety and depression “through aggressive acting out.” He was

“easily stimulated,” often felt “overwhelmed by emotions,” and had poor judgment because he

would frequently “base his decisions totally on these emotions.” Although family treatment was

deemed critical, there is no indication in the record that such treatment was ever provided.

¶ 52 School report cards indicated that Mr. Wilson was “acting out in class” and needed to

improve in areas like “[e]xercises self-control,” and “[m]akes appropriate decisions

independently.” And in a DCFS education report, Mr. Wilson’s fifth-grade teacher noted that he

had been “evaluated as mildly cognitively delayed” and was enrolled in special education classes.

¶ 53 Mr. Wilson’s grandmother submitted an affidavit confirming that Mr. Wilson’s mother,

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now deceased, had used drugs during his childhood, resulting in DCFS involvement and his

grandmother eventually adopting him. She further stated that, as a child, Mr. Wilson “was believed

to have some cognitive delay and to be hyperactive.” He saw a therapist at his elementary school

but received no other treatment or therapy. She eventually arranged for him to attend a private

middle school “that was safer and accommodated his hyperactivity with a flexible attendance

schedule.” He attended special education classes in ninth and tenth grade, but his grandmother

stated that this “was a negative experience” because the classes “were not tailored to his needs.”

¶ 54 Mr. Wilson confirmed this information in his own affidavit, adding that he had been in “the

slow learners’ class” in elementary school. Mr. Wilson claimed to have good relationships with

his children, who visited him, and whom he kept in touch with by sending them letters and cards.

He was especially close to his oldest daughter, Anaya, who was then a 16-year-old high school

student and who visited him on a regular basis.

¶ 55 Mr. Wilson also averred that treatment while in prison had allowed him to begin to

overcome some of the difficulties he faced, stating:

“Mental health groups or classes are offered to the residents of my wing and I attend three

times a week. I am now being helped by prescribed medication for sleeping and anxiety.

This has helped me to become more stable and I have made progress in impulse control

and in dealing more calmly and reasonably with difficult situations.”

Attached to his amended petition were a number of certificates of achievement he earned while in

prison for completing courses in grief and loss, victim impact, lifestyle redirection, problem

solving, anger management, and conflict resolution.

¶ 56 Finally, Mr. Wilson attached the September 2017 testimony—spanning some 70 pages—

of Dr. Laurence Steinberg in Cruz v. United States, No. 11-CV-787, 2018 WL 1541898 (D. Conn.

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Mar. 29, 2018), vacated, 826 F. App’x 49 (2d Cir. 2020), a federal district court case in which an

18-year-old offender argued that his sentence of mandatory life in prison without parole imposed

absent Miller’s protections violated the eighth amendment of the United States Constitution. Dr.

Steinberg, a professor of psychology at Temple University who specializes in adolescence, was

the lead psychologist on the amicus briefs submitted by the American Psychological Association

in Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller,

567 U.S. 460. Dr. Steinberg testified that compared to adults, adolescents—whom he defined as

individuals from 10-21 years of age—are “more impulsive,” “more prone to engage in risky and

reckless behavior,” “more oriented toward the present and less oriented toward the future,” and

more “susceptible to the influence of other people.” Likening the limbic system or emotional center

of the brain to the accelerator and the prefrontal cortex to the brakes, he explained that during

adolescence, the limbic system is “increasingly easily aroused” and capable of overwhelming the

prefrontal cortex, which has not yet fully developed. According to Dr. Steinberg, there is a general

consensus in the scientific community that the data supports these conclusions. Although he

acknowledged on cross-examination that more studies needed to be done specifically looking at

individuals over the age of 18, he explained that patterns in risk-taking and emotional maturation

have allowed researchers to construct theoretical models of behaviors in the 18 to 21 age group

that demonstrate a continuation of adolescent risk-taking.

¶ 57 3. Circuit Court Ruling

¶ 58 The circuit court granted the State’s motion to dismiss Mr. Wilson’s petition. On the actual

innocence claim, the court found it quite improbable that Mr. Owens “just happen[ed] to have

remembered on that particular day being with somebody who he claims was named Danny

Blackwell” and noted that Mr. Owens had not explained how it was that he came to be incarcerated

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at the same time as Mr. Wilson or provided any details concerning their encounter. Understanding

that it could make no credibility determination at the second stage, however, the court took pains

to explain that its ruling was based not on the fact that Mr. Owens’s account was unbelievable but

on its inconclusive nature:

“I am absolutely aware that it is not proper for the Court to make any credibility

determinations regarding Mr. Owens or his affidavit at this point. I’m incapable of doing

so by virtue of the fact that he’s not present. This is the so-called second stage hearing, it

is not an evidentiary hearing, can’t make credibility determinations without someone’s

testimony until you actually hear and see them testify when they’re subject too [sic] direct

and cross-examination. I would note, however, in no uncertain terms that the circumstances

set forth by Mr. Owens in his affidavit lack any conclusiveness whatsoever regarding his

claim that Mr. Wilson is innocent.

Consequently—his actions. Consequently, the Court will grant the State’s motion

with respect to that issue as well ***.”

¶ 59 On the as-applied proportionate penalties claim, the court recounted the facts of People v.

House, 2019 IL App (1st) 110580-B, and People v. Leon Miller, 202 Ill. 2d 328 (2002), pointing

out that, unlike the defendants in those cases, Mr. Wilson had not served as a mere lookout. If the

“40-year cutoff” announced in People v. Buffer, 2019 IL 122327, could apply, through the

proportionate penalties clause, to individuals over the age of 18, then in the court’s view “this

circumstance is not it.” The court dismissed that claim as well.

¶ 60 II. JURISDICTION

¶ 61 The circuit court dismissed Mr. Wilson’s amended postconviction petition on September

19, 2019, and Mr. Wilson timely filed a notice of appeal from that ruling the same day. We have

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jurisdiction over this appeal pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const.

1970, art. VI, § 6) and Illinois Supreme Court Rule 606 (eff. July 1, 2017) and Rule 651(a) (eff.

July 1, 2017), governing appeals from final judgments in postconviction proceedings.

¶ 62 III. ANALYSIS

¶ 63 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) establishes

procedures by which an incarcerated criminal defendant may challenge his conviction or sentence

based on a substantial deprivation of his state or federal constitutional rights. Id. § 122-1(a)(1);

People v. Caballero, 228 Ill. 2d 79, 83 (2008). A postconviction proceeding is a collateral attack

on the trial court proceedings. People v. Petrenko, 237 Ill. 2d 490, 499 (2010). Its scope is limited

to constitutional issues that were not, and could not have been, previously adjudicated. People v.

Whitfield, 217 Ill. 2d 177, 183 (2005).

¶ 64 Postconviction proceedings occur in three stages. People v. Gaultney, 174 Ill. 2d 410, 418

(1996). At the first stage, the circuit court determines, without any input from the State, whether

the defendant’s petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West

2018); Gaultney, 174 Ill. 2d at 418. To survive dismissal at this stage, a petition need only present

the “gist” of a constitutional claim. Gaultney, 174 Ill. 2d at 418. At the second stage, the circuit

court may appoint counsel to represent the defendant and file an amended petition, and the State

must either answer or move to dismiss the petition. 725 ILCS 5/122-4, 122-5 (West 2018);

Gaultney, 174 Ill. 2d at 418. “Where the State seeks dismissal of a post-conviction petition instead

of filing an answer, its motion to dismiss assumes the truth of the allegations to which it is directed

and questions only their legal sufficiency.” People v. Miller, 203 Ill. 2d 433, 437 (2002). A petition

should be dismissed at the second stage when its allegations of fact, “liberally construed in favor

of the petitioner and in light of the original trial record,” fail to make a “substantial showing” of a

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constitutional violation. People v. Coleman, 183 Ill. 2d 366, 382 (1998). If such a showing is

made—i.e., if support for the allegations exists in the record or in accompanying affidavits—the

petition advances to a third-stage evidentiary hearing on the merits. 725 ILCS 5/122-6 (West

2018); People v. Silagy, 116 Ill. 2d 357, 365 (1987).

¶ 65 In determining whether to grant a third-stage hearing, the circuit court takes all well-

pleaded facts in the petition and in any accompanying affidavits as true, unless they are positively

rebutted by the record (People v. Evans, 186 Ill. 2d 83, 89 (1999)), and does not make findings of

fact or credibility determinations (People v. Childress, 191 Ill. 2d 168, 174 (2000)). The court’s

concern at this stage is thus solely with the “legal sufficiency of the petition’s well-pled allegations

of a constitutional violation, which if proven at an evidentiary hearing, would entitle [the]

petitioner to relief.” (Emphasis in original.) People v. Domagala, 2013 IL 113688, ¶ 35.

¶ 66 We review the dismissal of a postconviction petition at the second stage de novo. People

v. Sanders, 2016 IL 118123, ¶ 31.

¶ 67 A. Mr. Wilson’s Claim of Actual Innocence

¶ 68 We first consider Mr. Wilson’s claim of actual innocence, based on the eyewitness account

of Mr. Owens that someone other than Mr. Wilson shot and killed Mr. Moffett at the Buchanan

Barbershop. “Courts may consider a freestanding claim of actual innocence in a post-conviction

proceeding if the claim is based on newly discovered, material, and noncumulative evidence that

the defendant is innocent of the crime for which he has been tried, convicted, and sentenced.”

People v. Harris, 206 Ill. 2d 293, 301 (2002). “A defendant is only entitled to relief on [a] claim

of actual innocence if the evidence is of such a conclusive character that it would probably change

the result of retrial.” Id.

¶ 69 Here, the State does not dispute that Mr. Owens’s affidavit is material and noncumulative.

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Its position is that the affidavit cannot be considered newly discovered and, even if it could, the

circuit court correctly concluded that the facts relayed in the affidavit are not of such a conclusive

nature that, if proved, they would have any effect on the result of a retrial.

¶ 70 The State argues that Mr. Owens’s affidavit is not “newly discovered” because “[w]hile

Owens himself may have been unknown to [Mr. Wilson] as a source, the facts contained in his

affidavit were already known to [Mr. Wilson] long before trial.” (Emphasis added.) We do not

accept this attempt to equate knowledge by a defendant that he is not guilty with knowledge of

evidence that could help the defendant convince a jury of this fact. We explained this in People v.

Jackson, 2018 IL App (1st) 171773, stating:

“We *** reject the notion, *** that we should focus on whether the information [the

averring witness] now offers is newly discovered. The trial court pointed to the fact that it

is not new information to [the defendant] that he was not the shooter and that the police

were trying to coerce witnesses into saying that he was. Our supreme court has made clear

that a claim of actual innocence based on the testimony of an additional eyewitness

previously unknown to the defendant constitutes a new ‘claim’ of actual innocence.

[Citation]. To hold otherwise would prevent innocent defendants, necessarily aware of their

own innocence, from ever asserting claims of actual innocence based on newly discovered

evidence supporting their exoneration.” (Emphasis in original.) Id. ¶ 75.

¶ 71 Evidence is newly discovered if it was “not available at *** trial and *** could not have

[been] discovered sooner through [due] diligence.” People v. Jarrett, 399 Ill. App. 3d 715, 723

(2010). Here, Mr. Wilson asserted that he was unaware that anyone outside the barbershop

witnessed the shooting. Unlike the occupants of the barbershop, who were known to Mr. Wilson

or identified by other witnesses, at least by nickname, Mr. Owens was not referred to anywhere in

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the evidence adduced at trial. Accordingly, we find Mr. Wilson has carried his burden of

demonstrating that Mr. Owens’s affidavit and any testimony he would offer in this matter is newly

discovered.

¶ 72 The State next argues, as the circuit court concluded when it dismissed Mr. Wilson’s actual

innocence claim, that Mr. Owens’s affidavit is not “of such conclusive character that it [would]

probably change the result on retrial.” In support of this argument, the State reminds us that when

considering Mr. Wilson’s claim of first-prong plain error on direct appeal, we concluded that the

evidence against him at trial was “overwhelming.” Wilson, slip order at 8. But at trial there were

two eyewitnesses with generally consistent accounts of what happened that conflicted entirely with

the uncorroborated account Mr. Wilson gave to police. The corroborating testimony of another

witness—an outsider who was neither the friend nor the enemy of anyone in the barbershop and

who had a clear view of what took place the night Mr. Moffett was shot—would have done much

to level the playing field for Mr. Wilson, forcing the jury to make a much different and potentially

more difficult credibility determination. Also, as noted above, these were jurors that at one point

asked the court what would happen if they could not come to an agreement.

¶ 73 As our supreme court has instructed, when considering the conclusiveness of newly

discovered evidence, the question is “whether the evidence supporting the postconviction petition

places the trial evidence in a different light and undermines the court’s confidence in the judgment

of guilt.” People v. Robinson, 2020 IL 123849, ¶ 48. In making this assessment, we must take all

well-pleaded facts in Mr. Wilson’s petition and in Mr. Owens’s sworn affidavit that are not

positively rebutted by the record as true. Evans, 186 Ill. 2d at 89.

¶ 74 On this point we find People v. Brooks, 2021 IL App (4th) 200573, cited by Mr. Wilson as

supplemental authority on appeal, to be instructive. The petitioner in Brooks alleged that his trial

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counsel failed to investigate or call a witness who would have testified that she possessed a text

message from another individual, in which that person admitted to having committed the murder

for which the petitioner had been convicted. Id. ¶ 3. The circuit court dismissed the petition at the

second stage, finding the affidavit contained inadmissible hearsay. Id. ¶ 60. This court reversed,

on the basis that the rules of evidence do not apply at the second stage of postconviction

proceedings and the affidavit thus had to be taken as true. Id. ¶¶ 61.

¶ 75 Although we agree with the State that the court’s focus in Brooks was on evidentiary

matters (id. ¶ 42), the court also discussed at length what it means to take the assertions made in

an affidavit as true. In doing so, the court adopted the following analysis from Justice Ellis’s dissent

in People v. Simms, 2020 IL App (1st) 161067:

“ ‘What does it mean to take an affidavit as true? Do we merely assume that the affiant

would testify consistently with the affidavit at a new trial? Or must we assume that a

reasonable juror, hearing the affiant’s testimony at a new trial, would believe it—which is

just to say, take it as true?

***

At this initial stage, we are required to accept “[a]ll well-pleaded factual

allegations”—including those set forth in [the new witness’s] affidavit—as true. [Citation.]

If taking [that] affidavit testimony as true means anything at all, it must mean that a juror,

hearing from [the new witness] at a hypothetical retrial, would believe his testimony. (To

“believe” just means “to accept something as true, genuine, or real.” Merriam-Webster

Online Dictionary, https://www.merriam-webster.com/dictionary/believe (last visited June

3, 2019)). *** We then ask whether it is more likely than not that no reasonable juror,

hearing and believing this evidence, alongside all the other evidence presented at trial,

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could convict defendant.’ ” (Emphases in original.) Brooks, 2021 IL App (4th) 200573,

¶ 44 (quoting Simms, 2020 IL App (1st) 161067, ¶¶ 53-57 (Ellis, J., dissenting)).

¶ 76 Here, we simply cannot agree with the State that if taken as true, Mr. Owens’s testimony,

which provides significant corroboration for Mr. Wilson’s unwavering insistence that someone

else was the shooter in this case, “would not have had any impact on the trier of fact’s

determination.” An experienced prosecutor would certainly want to rigorously test the accuracy of

Mr. Owens’s recollections and explore the fortuitous circumstances under which he and Mr.

Wilson met. But that is part of helping the factfinder to determine credibility, a task our supreme

court has made clear is strictly reserved for third-stage evidentiary hearings. Robinson, 2020 IL

123849, ¶ 61. The possibility that Mr. Owens might not be as credible as the State’s witnesses is

simply not a basis for dismissal at the second stage.

¶ 77 The physical evidence in this case—including the recovered bullets indicating that the

murder weapon was a revolver and the presence of blood on the desk and carpet where the State’s

witnesses testified Mr. Moffett were shot—is indeed consistent with the accounts given by those

witnesses, but it is also consistent with the alternative account given by Mr. Wilson and now by

Mr. Owens. The State also inflates the helpfulness of the surveillance video, which we have

reviewed ourselves. It is difficult to make out many of the things Mr. Walker told the jury he saw

in that video, including a gun in the hand of the figure he identified as Mr. Wilson. And individuals

are present in the video that he did not account for. The only thing that the video clearly establishes

is that a number of people came in and out of the barbershop on the night of the shooting, which

is fully consistent with the accounts given by Mr. Wilson and Mr. Owens. The State insisted at

oral argument in this court that Mr. Owens’s statement that he parked his car across the street from

the barbershop is refuted by the surveillance video, which does not clearly depict anyone crossing

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the street directly in front of the barbershop. As defense counsel correctly noted, however, the

surveillance footage was taken at an angle. The full width of the street is not visible. Nor is a great

deal of the length of the street beyond the barbershop. It is at least possible that one of the

unidentified individuals in the video exited a vehicle on the other side of the street and crossed the

street outside of the camera’s field of view before entering the barbershop. Mr. Owens’s affidavit

is thus not positively rebutted by the record.

¶ 78 The State also insists that Mr. Owens’s affidavit lacks necessary details, like what Mr.

Blackwell looked like or was wearing and faults Mr. Wilson for not attempting to identify which

of the otherwise unidentified individuals in the surveillance video is Mr. Blackwell. These also

may be proper areas of inquiry for cross-examination at an evidentiary hearing. This is not,

however, a situation where a completely uncorroborated and perfunctory affidavit proclaiming the

defendant’s innocence is offered up by an all-too-convenient jailhouse witness. Mr. Owens’s

affidavit provides details regarding when and how he encountered Mr. Blackwell on the night of

the shooting and an accurate description of the barbershop and its occupants, including the fact

that the victim was wearing a brown shirt and an orange hat. Mr. Owens goes on to explain why

he had a good reason to remember the events in question. When he ran into Mr. Blackwell just a

few days later, Mr. Blackwell was angry that Mr. Owens had left him at the barbershop and shot

Mr. Owens in the left eye in retribution. The Department of Corrections’ prisoner database, which

we may take judicial notice of (People v. Goods, 2016 IL App (1st) 140511, ¶ 56), confirms that

Mr. Owens has a blind left eye, a disability that is also apparent from his prison photograph. See

Internet Inmate Status, Ill. Dep’t of Corr., https://www.idoc.state.il.us/subsections/search/

inms_print.asp?idoc=M15274 (last visited Jan. 18, 2022) [https://perma.cc/T8SF-C7Q5]. Nor, as

defense counsel pointed out at argument, is this a case where the newly discovered evidence

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conflicts with a previous confession. Over the course of the 34-minute interrogation video

introduced at trial, Mr. Wilson never once departed from his insistence that some other man who

entered the barbershop that night was the shooter.

¶ 79 Nor has he departed from it since. We have examined the account that Mr. Wilson provided

in his original petition about what he believed Mr. President would have testified to if called at

trial and that account is consistent with both Mr. Wilson’s statement to the police and Mr. Owens’s

affidavit. For example, Mr. Wilson’s assertion that Mr. President would have said the shooter

entered the barbershop and yelled at Mr. Moffat, “Geno where’s that s***? Give me that s***?”

tracks with Mr. Owens’s statement that Mr. Blackwell asked for a ride to the barbershop because

he wanted to confront “an individual who owed him some money before that individual left.” It is

also consistent with the testimony at trial that Mr. Moffat was at the barbershop to collect his

Range Rover and laptop and that he was trying to sell the Range Rover.

¶ 80 It is true that in order to believe Mr. Owens, a jury would have to conclude that Mr. Walker

and Mr. Robinson were either mistaken or lying. But as our supreme court recently made clear,

newly discovered evidence is not positively rebutted by the record simply because it conflicts with

other evidence. Robinson, 2020 IL 123849, ¶ 60. It must instead “be clear from the trial record that

no fact finder could ever accept the truth of that evidence,” such as where the new evidence “is

affirmatively and incontestably demonstrated to be false or impossible.” (Emphasis added.) Id.

¶ 81 There are reasons, based on this record, that a jury could reject the identification of Mr.

Wilson as the shooter by the State’s witnesses. There was evidence, for example that when the

first shot was fired, Mr. Walker was already headed to the back of the barbershop and may not

have seen who fired the shots. Mr. Wilson had accused Mr. Robinson of robbing him and Mr.

Robinson therefore could have been motivated to falsely accuse Mr. Wilson of this murder. Or Mr.

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Walker and Mr. Robinson might have had some concerns, as Mr. Owens did, about “what [Mr.

Blackwell] was capable of” and decided it would be better to name Mr. Wilson as the shooter than

to name Mr. Blackwell.

¶ 82 The State is quite correct that the requirements of an actual innocence claim are

“extraordinarily difficult to meet” and courts thus “rarely grant postconviction petitions based on

claims of actual innocence.” People v. Coleman, 2013 IL 113307, ¶ 94. But to advance a petition

to the third stage does not mean that the petition will necessarily be granted, only that the evidence

supporting the petition should be appropriately tested and assessed. We reverse the circuit court’s

dismissal of Mr. Wilson’s actual innocence claim and remand for such an assessment at a third-

stage hearing.

¶ 83 B. Mr. Wilson’s As-Applied Proportionate Penalties Claim

¶ 84 Mr. Wilson’s second claim is that, as applied to him, a 65-year de facto life sentence for a

crime committed when he was just 19 years old violates the proportionate penalties clause of the

Illinois Constitution (Ill. Const. 1970, art. I, § 11). In support of this argument, Mr. Wilson relies

on recent caselaw governing the sentencing of juvenile and young-adult offenders, caselaw that

without a doubt has evolved considerably since he was sentenced in 2008.

¶ 85 In Miller, 567 U.S. 460, the United States Supreme Court established a new substantive

right: exemption, in all but the rarest of circumstances, from sentences of life in prison without the

opportunity for parole for juvenile offenders. As the Court explained in Montgomery v. Louisiana,

577 U.S. 190, 208 (2016), a Miller-compliant sentencing hearing is designed to ensure that the

defendant is not one of those “rare juvenile offender[s] who exhibits such irretrievable depravity

that rehabilitation is impossible and life without parole is justified.”

¶ 86 Miller defined juvenile offenders narrowly, however, based on societal norms, as those

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under the age of 18 at the time of their crimes. Miller, 567 U.S. at 465. For this narrow group—

and excepting the possibility that a juvenile’s crimes might in rare cases reflect “irreparable

corruption”—the Court determined that a life sentence without the opportunity for parole is

categorically cruel and unusual under the eighth amendment. (Internal quotation marks omitted.)

Montgomery, 577 U.S. at 194-95. Our own supreme court has held that this is true regardless of

whether the life sentence is actual or de facto, mandatory or discretionary. People v. Reyes, 2016

IL 119271, ¶¶ 9-10; People v. Holman, 2017 IL 120655, ¶ 40. In arriving at and in applying this

new substantive rule, “the Supreme Court has clearly and consistently drawn the line between

juveniles and adults for the purpose of sentencing at the age of 18.” Harris, 2018 IL 121932, ¶ 58.

¶ 87 In recent years, however, our supreme court has acknowledged that young adults—at least

those who were 20 years of age or younger at the time of their crimes—may rely on the evolving

neuroscience and societal standards underlying the rule in Miller to support as-applied challenges

to life sentences brought pursuant to the Illinois proportionate penalties clause (Ill. Const. 1970,

art. I, § 11). See People v. Thompson, 2015 IL 118151, ¶¶ 43-44 (noting that a defendant, who was

19 years old at the time of his crime, could not bring such a claim for the first time on direct appeal

but was “not necessarily foreclosed” from asserting it in postconviction proceedings); Harris, 2018

IL 121932, ¶ 48 (likewise concluding that the as-applied, youth-based sentencing claim of a

defendant who was 18 at the time of his crime was “more appropriately raised” in postconviction

proceedings). In doing so, the court has accepted the possibility that a young-adult offender may

be able to demonstrate, through an adequate factual record, that his or her own specific

characteristics were so like those of a juvenile that imposition of a life sentence absent the

safeguards established in Miller was “cruel, degrading, or so wholly disproportionate to the offense

that it shocks the moral sense of the community.” See People v. Klepper, 234 Ill. 2d 337, 348-49

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(2009) (stating what is required to succeed on a proportionate penalties claim).

¶ 88 While this appeal was pending, the court issued its decision in People v. House, 2021 IL

125124, cited by Mr. Wilson as supplemental authority, and commented on the role of second-

and third-stage proceedings where such fact-intensive claims are asserted. House also involved the

second-stage dismissal of a youth-based proportionate penalties claim asserted by a 19-year-old

offender. Id. ¶ 8. This court reversed the dismissal and remanded for a new sentencing hearing,

concluding that further postconviction proceedings were unnecessary. Id. ¶ 12. Our supreme court

disagreed, clarifying that such a claim must be based on “evidence relating to how the evolving

science on juvenile maturity and brain development applie[d] to [the defendant’s] specific facts

and circumstances.” Id. ¶ 29. Because the factual record required additional development, the court

remanded the case to the circuit court for further second-stage proceedings. Id. ¶ 32.

¶ 89 Mr. Wilson argues that, unlike the petition in House, his amended petition presents

considerable evidence that, at age 19, his individual characteristics rendered him more like a

juvenile than an adult. We agree. Mr. Wilson’s petition and the attachments supporting it make a

connection between the applicable science and his own characteristics as a 19-year-old offender.

¶ 90 Dr. Steinberg’s testimony under oath in an unrelated case was that until young adults are

22 or 23 they often lag behind in their ability to make good decisions while emotionally stressed.

The evidence concerning Mr. Wilson’s specific background tracks with these findings. As early

as fourth grade, a trained psychologist noted that he was “frequently cited for lack of self-control”

and aggressive behavior. Although Mr. Wilson was capable of performing at or above his grade

level, he had poor “adaptive functioning.” Mr. Wilson lacked coping skills to face his anxiety,

depression, and fear that he could not trust the adults in his life or rely on a safe home environment.

He responded through “aggressive acting out.” He was “easily stimulated” and “overwhelmed by

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emotions” and exhibited poor judgment because he would often “base his decisions totally on these

emotions.” School report cards and evaluations in later years substantiate these findings. Treatment

was recommended but apparently never provided. Instead, Mr. Wilson was determined to be

“mildly cognitively delayed.” He was placed in the “slow learners’ class” in elementary school

and in special education classes in ninth and tenth grade, but according to his grandmother, these

classes were not tailored to his needs.

¶ 91 When asked by the panel at oral argument what would be sufficient to proceed to a third-

stage evidentiary hearing, if we were to hold that the facts alleged in Mr. Wilson’s petition and the

documents he attached in support of those allegations are insufficient, the State found it “difficult

to say.” One of the State’s primary arguments is that the most helpful evidence of Mr. Wilson’s

cognitive delay, inability to maintain self-control, and tendency to be overwhelmed by emotion

date from his early adolescence. The State urges us to presume, absent any support in the record,

that Mr. Wilson overcame these challenges and, by the time he was 19 years old, was fully the

equivalent of a mature adult. In our view, however, the specific findings made by a child

psychologist when Mr. Wilson was in fourth grade and by Mr. Wilson’s fifth-grade teacher paint

a picture of difficulties that would persist if not addressed. The psychologist specifically stated

that family treatment was “critical.” Nothing in the record suggests that treatment was provided.

The likelihood that the cognitive delay and lack of self-control Mr. Wilson experienced persisted

into his late adolescence and early adulthood is further evidenced by the fact that Mr. Wilson was

enrolled in special education classes as late as tenth grade. Defense counsel also drew our attention

at oral argument to a Chicago Public Schools student information report, last updated on November

1, 2004, when Mr. Wilson was 18 years old, that still referred to him as “educable mentally

handicapped.” Since the psychological evaluation done in fourth grade reported that he had an

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above-average IQ, it seems unlikely that the school’s later categorization of Mr. Wilson as

“educable mentally handicapped” was the result of a low IQ. The materials attached to Mr.

Wilson’s petition suggest that ongoing developmental delays in the areas of self-control and the

regulation of emotions may have been what kept Mr. Wilson in special education classes through

at least November 2004.

¶ 92 The personal growth that Mr. Wilson has shown while incarcerated also indicates that his

earlier difficulties reflected the transient characteristics of youth rather than a more permanent

cognitive condition. He renounced his prior gang affiliation and has completed courses in grief

and loss, victim impact, lifestyle redirection, problem solving, anger management, and conflict

resolution. In his affidavit he stated that he attends mental health group sessions three times a

week, he has been prescribed medication for sleeping and anxiety, that these things have helped

him “to become more stable,” and that he has “made progress in impulse control and in dealing

more calmly and reasonably with difficult situations.” He has good relationships with his children

and, in particular, visits with and writes regularly to his 16-year-old daughter.

¶ 93 We reject the State’s argument, based on Holman, 2017 IL 120655, ¶ 47, that we may not

consider these facts regarding the improvements Mr. Wilson has made post-incarceration because

any inquiry into application of the sentencing factors must be “backwards-looking.” As we

explained in People v. Zumot, 2021 IL App (1st) 191743, ¶¶ 33-34, post-sentencing conduct is not

being considered here as part of an inquiry into the sentencing judge’s application of the Miller

factors “but rather as evidence that may be relevant to whether Miller applies in the first place to

this particular 19-year-old offender.”

“Where, as here, the initial inquiry is whether a young adult over the age of 18 may have

exhibited the characteristics of a juvenile because he possessed rehabilitative potential

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incompatible with the imposition of a life sentence, his post-sentencing conduct may be

relevant to such a determination and, if so, should be considered.” Id. ¶ 34 (“ ‘if, and only

if, the young adult makes [the showing that he is the equivalent of a juvenile] then the trial

court goes on to consider whether the initial sentencing hearing complied with Miller.’ ”

(quoting People v. Ruiz, 2020 IL App (1st) 163145, ¶ 52)).

¶ 94 And unlike the petitioner in People v. Coty, 2020 IL 123972, also relied on by the State,

the evidence supporting Mr. Wilson’s petition suggests that his cognitive delay was the result of

transient juvenile immaturity and not simply lowered or impaired cognition. In Coty, our supreme

court rejected the Miller-based challenge of a 46-year-old intellectually disabled adult, on the basis

that his permanent disability rendered him less culpable but also “less likely to be rehabilitated and

thus more likely to reoffend.” Id. ¶ 42. Nothing in the record suggests that that Mr. Wilson’s

struggles with impulse control are of a similarly permanent nature. Whether the State can

successfully argue that they are, following an evidentiary hearing, remains to be seen.

¶ 95 The State’s other arguments for why Mr. Wilson’s proportionate penalties claim was

properly dismissed are, in our view, equally without merit. Our supreme court held in Buffer, 2019

IL 122327, ¶ 41, that for purposes of applying the rule in Miller, a de facto life sentence is any

sentence greater than 40 years. The State suggests in a footnote that because the Buffer court “was

only focused on juveniles,” there could conceivably be some other, as yet unknown, limit for when

a lengthy term-of-years sentence imposed on a young adult should be deemed a de facto life

sentence. If so, however, we fail to see why that line would be drawn at anything beyond the 40

years established in Buffer. A young-adult offender, after all, will reach his anticipated life

expectancy sooner, not later, than a juvenile offender.

¶ 96 We likewise reject the State’s argument that young-adult offenders cannot claim Miller-

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based protections where their sentences, like Mr. Wilson’s, were discretionary rather than

mandatory. Our supreme court eliminated this distinction for juveniles in Holman, 2017 IL

120655, ¶ 40, where it held that “Miller applies to discretionary sentences of life without parole

for juvenile defendants.” We see no reason that this distinction should have any more validity for

a young adult making a proportionate penalties claim than it would for a juvenile. See People v.

Johnson, 2020 IL App (1st) 171362, ¶ 18.

¶ 97 We are aware of recent language from our supreme court in People v. Jones, 2021 IL

126432, ¶ 26, and People v. Dorsey, 2021 IL 123010, ¶ 41, questioning what it had said in Holman,

and suggesting that it might resurrect the mandatory/discretionary dichotomy for juveniles or apply

that dichotomy for as-applied challenges under the proportionate penalties clause for young adults.

However, even if this distinction does apply, it should not impact Mr. Wilson’s ability to make a

claim here. The minimum sentence Mr. Wilson could have received was 45 years, which as our

supreme court recognized in Buffer is a de facto life sentence. The trial court in this case plainly

had no discretion to sentence Mr. Wilson to anything less than life in prison. As we recognized in

People v. Horshaw, 2021 IL App (1st) 182047, ¶ 130, a life sentence can only be considered

discretionary “where the trial court had at its disposal a minimum sentence of less than 40 years

yet decided to impose a sentence in excess of that term.” Thus, Mr. Wilson received a mandatory

de facto life sentence, and any distinction between mandatory and discretionary life sentences has

no applicability to his claim.

¶ 98 The State’s argument that Miller cannot apply where Mr. Wilson, unlike the petitioner in

House, “was not just a peripheral actor, but was the shooter,” is furthermore one that our supreme

court has now expressly rejected. See House, 2021 IL 125124, ¶ 31 (explaining that the proper

analysis hinges on the “development of the record in the trial court, not whether the challenge is

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raised on a collateral proceeding or on appeal, or whether the petitioner was a principal rather

than an accomplice in the crime” (emphasis added)). This recent clarification by the court also

diminishes the persuasive value of People v. Carrion, 2020 IL App (1st) 171001, ¶ 30, and People

v. Handy, 2019 IL App (1st) 170213, cases the dissent cites as examples of this court rejecting

attempts “to extend Miller via the proportionate penalties clause to young adults for crimes they

personally committed” (see infra ¶¶ 112-16).

¶ 99 Finally, we reject the State’s argument, accepted by the dissent, that the trial court in this

case did in fact consider the Miller factors when it sentenced Mr. Wilson in 2008—years before

Miller or Harris would be decided—simply because some information touching on those factors

was included in the PSI report submitted at sentencing. The trial court knew from the PSI report

in this case and from defense counsel’s arguments in mitigation that Mr. Wilson, who was 21 years

old at the time of sentencing, had had a “tragic upbringing,” in that he never knew his father, was

raised by his mother until the age of 10, and was thereafter placed in the care of his grandmother

when his mother’s substance abuse problems escalated. The court knew that Mr. Wilson had a

history of special education placement and had been subjected to a psychological evaluation when

he was 14 or 15 years old but was never diagnosed with a psychological disorder or prescribed any

psychotropic medications. See supra ¶¶ 31-36. That is all.

¶ 100 The State does not dispute that numerous allegations and documents elaborating on this

history were presented to the court for the first time in support of Mr. Wilson’s postconviction

petition, including affidavits, school evaluations, DCFS records, and certificates of achievement

he earned while in prison. These materials, which are detailed above (see supra ¶¶51-56), are also

relevant to the Miller factors, which include both a defendant’s “particular immaturity” and

“prospects for rehabilitation.” Holman, 2017 IL 120655, ¶ 46.

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¶ 101 As we have noted before, “being aware of evidence relevant to the Miller factors is wholly

distinct from considering those factors as mitigating, or carefully considering the prospect of a

defendant’s rehabilitative potential.” (Internal quotation marks omitted.) Zumot, 2021 IL App (1st)

191743, ¶ 40. The trial court in this case had some relevant information at its disposal when it

sentenced Mr. Wilson, but nothing like the amount Mr. Wilson has already gathered or could

gather for a Miller hearing to show that he was not one of those rare juveniles whose crime reflects

irreparable corruption, i.e., “who exhibits such irretrievable depravity that rehabilitation is

impossible and life without parole is justified.” (Internal quotation marks omitted.) Montgomery,

577 U.S. at 208. We simply cannot conclude that Mr. Wilson received a Miller-compliant

sentencing hearing under these circumstances.

¶ 102 We reverse the circuit court’s dismissal of Mr. Wilson’s youth-based proportionate

penalties claim and remand for a third-stage hearing.

¶ 103 IV. CONCLUSION

¶ 104 For the above reasons, we find that when liberally construed in his favor and taken as true,

the facts set out in Mr. Wilson’s petition and supporting documentation make a substantial showing

of constitutional violations requiring a third-stage evidentiary hearing. On remand, the circuit court

should first hold a hearing on Mr. Wilson’s claim of actual innocence. If a new trial is ordered,

Mr. Wilson’s sentencing arguments will be moot. If a new trial is not ordered, an evidentiary

hearing should then be held on his youth-based proportionate penalties claim.

¶ 105 Reversed and remanded with directions.

¶ 106 J. Pierce, dissenting in part.

¶ 107 The majority has found that petitioner’s proportionate penalties challenge should be

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advanced to the third stage for an evidentiary hearing, should the circuit court find that petitioner’s

actual innocence argument fails. I respectfully disagree, as petitioner was 19 years old at the time

he shot and killed the victim in this case, and the mitigation evidence in support of his claim that

he be treated as a juvenile was known to him at the time of his trial and was largely cumulative to

the evidence included in the PSI.

¶ 108 The Illinois proportionate-penalties clause provides that “[a]ll 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. 1, § 11. A defendant prevails on a proportionate penalties

claim where he shows “that the penalty imposed is cruel, degrading, or so wholly disproportionate

to the offense that it shocks the moral sense of the community.” People v. Klepper, 234 Ill. 2d 337,

348 (2009). An imprisonment sentence greater than 40 years imposed on a juvenile constitutes a

de facto life sentence. People v. Buffer, 2019 IL 122327, ¶ 41.

¶ 109 Petitioner raised an as-applied, youth-based challenge to his sentence relying on the

principles articulated in Miller to claim that his sentence “is cruel, degrading, or so wholly

disproportionate to the offense that it shocks the moral sense of the community.” Klepper, 234 Ill.

2d at 348. By definition, an “as applied” challenge “is dependent on the particular circumstances

and facts of the individual defendant or petitioner.” People v. Thompson, 2015 IL 118151, ¶ 37.

¶ 110 In this case, petitioner was convicted of shooting and killing Moffett. He received a

discretionary sentence of 65 years’ imprisonment; 40 years for the murder with an additional

25-year add-on for personally discharging a firearm. In my opinion, this discretionary sentence

was not “so wholly disproportionate that it shocks the moral sense of the community.”

¶ 111 I find petitioner’s case analogous to People v. Carrion, 2020 IL App (1st) 171001, ¶ 30,

and People v. Handy, 2019 IL App (1st) 170213, where this court rejected defendants’ attempts to

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extend Miller via the proportionate penalties clause to young adults for crimes they personally

committed.

¶ 112 In Carrion, 2020 IL App (1st) 171001, ¶¶ 3-4, the 19-year-old defendant entered the

apartment of a 69-year-old woman and stabbed her to death. He was convicted of residential

burglary and murder and sentenced to 55 years’ imprisonment. Id. ¶ 16. Defendant sought, and

was denied, leave to file a successive postconviction petition on the basis that his 55-year sentence

was a de facto life sentence that violated the proportionate penalties clause. Id. ¶ 21. We affirmed,

finding that his “55-year sentence for residential burglary and a senseless murder, which he

committed as the principal at the legal age of adulthood, does not shock the moral sense of the

community and thus is not cruel or degrading.” Id. ¶ 30.

¶ 113 Similarly, in Handy, 2019 IL App (1st) 170213, ¶¶ 37, 40, the 18½-year-old defendant was

sentenced to 60 years’ imprisonment for home invasion, armed robbery, aggravated kidnapping,

and aggravated criminal sexual assault. Id. ¶ 37. We rejected the defendant’s Miller claim,

explaining:

“Whether a defendant physically committed the offense is a significant consideration for

courts tasked with deciding whether to extend Miller principles to a young adult under the

proportionate penalties clause. [Citations.] Here, we cannot overlook defendant’s active

participation where he invaded the victims’ house with the codefendants, held a gun to Mr.

W.’s head to prevent him from interfering while the codefendants robbed and attacked his

family and kidnapped his young daughter, and then actively participated in the gang rape.”

Id. ¶ 40 (citing People v. Pittman, 2018 IL App (1st) 152030, ¶ 38 (not extending Miller

principles where the 18-year-old defendant was the perpetrator of the violent stabbing

deaths of three victims); Thomas, 2017 IL App (1st) 142557, ¶ 34 (not extending Miller

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principles where the 18-year-old defendant was the shooter and his convictions were based

on his own actions instead of accountability for the acts of another); People v. Ybarra, 2016

IL App (1st) 142407, ¶ 27 (not extending Miller principles where the 20-year-old defendant

was the one who “pulled the trigger”)).

¶ 114 Although there have been recent panels of this court that have held that 18 and 19-year-old

defendants who received discretionary life sentences (de facto or otherwise) for murder were

entitled to raise Miller claims in postconviction proceedings, those cases are simply not persuasive

under the facts of this case. 1 Carrion and Handy, and the cases cited therein are more persuasive

on the issue of discretionary sentences for young adult defendants who are personally culpable for

their crimes, particularly based on defendant’s criminal history.

¶ 115 Even accepting petitioner’s argument that Miller applies to this 19-year-old petitioner,

petitioner is not entitled to further postconviction proceedings for an as-applied challenge to his

sentence based on a consideration of his youth and specific circumstances of his life. Relevant

“youth and attendant circumstances” include, but are not limited to: “(1) the juvenile defendant’s

chronological age at the time of the offense and any evidence of his particular immaturity,

impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family

1 See People v. Franklin, 2020 IL App (1st) 171628, ¶¶ 33, 59 (life without the possibility of parole imposed on the defendant who was 18 years old at the time of the murder and had no prior convictions); People v. Daniels, 2020 IL App (1st) 171738, ¶¶ 6, 33 (natural life in prison without the possibility of parole imposed on a defendant who was 18 at the time of the murder with mental health conditions); People v. Johnson, 2020 IL App (1st) 171362, ¶ 6 (discretionary natural life sentence imposed on the defendant who was 19 at time of the murder); People v. Ruiz, 2020 IL App (1st) 163145, ¶¶ 17, 18 (discretionary 40-year sentence imposed on the defendant who was 18 at time of the murder); People v. Carrasuillo, 2020 IL App (1st) 180534, ¶¶ 1, 11 (indeterminate sentence of 200 to 600 years’ imprisonment imposed on the defendant who was 18 years old at the time of the murder with no prior record); People v. Minniefield, 2020 IL App (1st) 170541, ¶¶ 2, 13 (sentence of 50 years’ imprisonment imposed on a defendant who was 19 at the time of the murder with no violent criminal history or gang affiliation). - 38 - No. 1-19-2048

and home environment; (3) the juvenile defendant’s degree of participation in the homicide and

any evidence of familial or peer pressure that may have affected him; (4) the juvenile defendant’s

incompetence, including his inability to deal with police officers or prosecutors and his incapacity

to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” People

v. Holman, 2017 IL 120655, ¶ 46.

¶ 116 Contrary to the majority’s finding, petitioner had a Miller complaint sentencing hearing,

where the trial court considered the nature of the offense, his PSI which included his social and

criminal background, and, importantly, his youth. The PSI included specific information regarding

petitioner’s age, difficult childhood, his learning difficulties, tenth grade education, gang

involvement, daily marijuana use since the age of fifteen, and history of convictions. As we stated

in Croft, “a key feature of the juvenile’s sentencing hearing is that the defendant had the

‘opportunity to present evidence to show that his criminal conduct was the product of immaturity

and not incorrigibility.’ ” (Emphasis added.) Croft, 2018 IL App (1st) 150043, ¶ 23 (quoting

Holman, 2017 IL 120655, ¶ 49). Croft noted that the Holman factors are “a nonexhaustive list”

and that “nothing in Miller or Holman suggests that we are free to substitute our judgment for that

of the sentencing court” because the issue is not the particular sentence the trial court imposed but

whether the defendant had the opportunity to present evidence regarding his youth and that the

court considered his youth and its attendant characteristics in reaching its sentencing decision.

Croft, 2018 IL App (1st) 150043, ¶¶ 32-33. See also People v. Chambers, 2021 IL App (4th)

190151, ¶ 80 (quoting Buffer, 2019 IL 122327, ¶ 27) (“a defendant seeking relief under the Miller

line of cases ‘must show that *** the sentencing court failed to consider youth and its attendant

characteristics’–a showing that, one might think, would entail more than observing that the court

did not explicitly recite the Miller factors.”).

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¶ 117 In my view, even though Miller does not apply because petitioner was 19 at the time of the

offense, the record on appeal in this case is unquestionably sufficient to decide whether his

sentencing hearing complied with Miller. The record establishes without question that the court

considered his age, social history, educational history, and criminal history in imposing a sentence

that was appropriate for the brutal execution underlying his sentence.

¶ 118 For these reasons, I respectfully dissent in part from the majority’s opinion.

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Decision Under Review: Appeal from the Circuit Court of Cook County, No. 07-CR- 10824; the Hon. Timothy Joseph Joyce, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, Jonathan Pilsner, and Kelly for Anne Burden, of State Appellate Defender’s Office, of Chicago, Appellant: for appellant.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (John E. for Nowak, Brian Levitsky, and Lisanne P. Pugliese, Assistant Appellee: State’s Attorneys, of counsel), for the People.

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