2021 IL App (1st) 191625-U No. 1-19-1625 Second Division December 28, 2021
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). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
) Appeal from the THE PEOPLE OF THE STATE OF ) Circuit Court of ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) ) No. 97 CR 12486 v. ) ) ROMMELL WINTERS, ) Honorable ) Thomas Joseph Hennelly Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court. Justices Howse and Lavin concurred in the judgment.
ORDER
¶1 Held: The circuit court’s denial of defendant’s motion for leave to file his successive postconviction petition is affirmed where defendant failed to established both cause and prejudice with respect to his claim that his natural life sentence, imposed for crimes committed when he was 18 years old, was unconstitutional as applied to him under the proportionate penalties clause of the Illinois Constitution.
¶2 Defendant-appellant, Rommell Winters, appeals from the circuit court’s denial of his pro
se petition for leave to file a successive postconviction petition pursuant to the Post-Conviction No. 1-19-1625
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, defendant, who was 18
years old at the time of the underlying offenses and was convicted on a theory of accountability,
contends that he sufficiently established cause and prejudice as to his as-applied constitutional
challenge to his natural life sentence under the proportionate penalties clause. For the following
reasons, we affirm the circuit court’s dismissal.
¶3 I. BACKGROUND
¶4 This case was previously before us twice. See People v. Winters, No. 1-99-4427; People
v. Winters, 349 Ill. App. 3d 747 (2004). We repeat only the facts necessary to resolve this instant
appeal.
¶5 On November 7, 1996, Carl Barbee and Jerome Coleman were killed in a shooting.
Defendant and his codefendant, Kevin Malone, were charged with their murders. Defendant and
Malone were tried simultaneously with separate juries.
¶6 At trial, Chicago police officer Michael Dalessandro testified that he investigated a
related shooting that previously occurred on October 16, 1996, on the 3000 block of West
Chicago Avenue. The victims of that shooting were Malone, Deon Wilkins, and Anthony Prince.
That shooting was unsolved, and the investigation was suspended in November of 1996.
¶7 Other testimony revealed that Malone, defendant, Prince, Dwayne Mobley, and Dushae
Nesbitt were all members of the Traveling Vice Lords gang, who were in a feud with the
Unknown Vice Lords gang. At the time, the only individual who had a rank within the gang was
Prince, who was “chief.”
¶8 Nesbitt and Mobley testified to the following. On November 7, 1996, Mobley was
driving his girlfriend’s maroon Chevrolet Beretta, with his girlfriend and Nesbitt as passengers.
Both Nesbitt and Mobley were aware of the October shooting. They came across defendant and
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Malone in a black Buick Regal, which defendant was driving. Defendant told Mobley and
Nesbitt to follow them (though Mobley told police and testified before a grand jury that Malone
was the one who told them to follow them). Both cars then drove to the intersection of Adams
Street and Spaulding Avenue near Marshall High School, which was the Unknown Vice Lords’
territory. There, Nesbitt and Mobley observed a black Chevrolet with two men inside, who were
later identified as Barbee and Coleman. The black Chevrolet attempted a U-turn, but defendant
blocked the car. Malone stepped out of the Regal with a gun in his hand. He fired seven or eight
shots at the Chevrolet, shattering the driver’s side window. Nesbitt and Mobley drove away from
the scene, circled the block, and arrived back at the intersection to find only the Chevrolet. Three
days later, Mobley spoke with Malone, who told him not to say anything about the shooting.
Nesbitt encountered Malone at a barber shop sometime after the shooting and was likewise
instructed not to say anything about the shooting. In April 1997, on separate occasions, Mobley
and Nesbitt went to a police station, viewed physical lineups, and identified Malone and
defendant as involved in the shooting.
¶9 The State presented testimony from former Assistant State’s Attorney Kevin Simon. This
evidence was submitted solely to Malone’s jury but was considered by the trial court at
defendant’s resentencing hearing; thus, we relay the general substance of it here. Simon testified
that Malone signed a handwritten statement confessing to the shooting following his arrest.
Therein, Malone stated that on November 7, 1996, Prince ordered him to accompany defendant
to kill Barbee after Barbee failed to pay Prince $20,000 in exchange for Prince not seeking
revenge for the October shooting. Malone handed defendant a gun and rode in the front
passenger seat as defendant drove to Adams and Spaulding. Defendant handed the gun back to
Malone and told him to ask the men in the black Chevrolet about the money. When Malone
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questioned the occupants of the vehicle, he saw one man reach under the glove compartment and
Malone subsequently fired 10 or 11 times into the car. After he and defendant drove away from
the scene, he disposed of the gun.
¶ 10 The jury convicted defendant of the first degree murders of Barbee and Coleman.
¶ 11 At sentencing, the presentence investigation report (PSI) was filed with the court. In
aggravation, the State submitted the victim impact statement of Barbee’s mother, Carolyn
Barbee. The court sentenced defendant to natural life in prison without parole for each count of
first degree murder. The court denied defendant’s motion to reconsider his sentence.
¶ 12 On direct appeal, this court affirmed defendant’s convictions but vacated his sentence and
remanded for resentencing because Public Act 89-203 (eff. July 21, 1995), under which
defendant was sentenced, had been declared unconstitutional by our supreme court in People v.
Wooters, 188 Ill. 2d 500, 520 (1999). Thus, this court instructed the trial court to resentence
defendant under the provisions of the Unified Code of Corrections (Code) as they existed prior to
Public Act 89-203. Winters, 349 Ill. App. 3d at 748.
¶ 13 At the resentencing hearing, an updated PSI was submitted, along with the previously
submitted victim impact statement. Defendant’s PSI showed that he did not have a criminal
record (except for two juvenile adjudications for drug possession). Defendant spoke in
allocution, maintaining his innocence but also stating that he has stayed out of trouble while
incarcerated, that he was previously “a fragile thinker who was living a life of falsehood,” and
that he was no longer associated with any gang. The trial court sentenced defendant to a term of
natural life for each of the murders. In so ruling, the court stated that it had considered the
statutory factors in mitigation and aggravation and defendant’s rehabilitative potential and was
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familiar with the PSI. Defendant filed a motion to reconsider his sentence, which the trial court
denied but clarified that the sentences were to run concurrently.
¶ 14 Defendant appealed to this court, arguing that although mandatory life sentence for the
murder of more than one person was required, implicit in this court’s remand for resentencing
was that the sentence was discretionary. Winters, 349 Ill. App. 3d at 748. Alternatively,
defendant argued that “a mandatory life sentence for a ‘young’ adult defendant convicted under a
theory of liability is unconstitutional under the Illinois Supreme Court’s decision in People v.
Miller (Leon Miller), 202 Ill. 2d 328 (2002).” Winters, 349 Ill. App. 3d at 748. This court
affirmed, holding that a natural life sentence was mandatory for the murder of more than one
person. Winters, 349 Ill. App. 3d at 750. We also found that, not only was the level of
defendant’s participation in the offense factually different from that of the defendant in Leon
Miller, but unlike the defendant in Leon Miller, defendant was not a juvenile at the time the
offenses were committed. Id. at 750-51. Our supreme court denied defendant’s petition for leave
to appeal. Winters, 211 Ill. 2d 613 (2004).
¶ 15 While his direct appeal from resentencing was pending with this court, defendant filed his
initial postconviction petition, in which he argued that (1) his conviction and sentence violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), and (2) his appellate counsel on direct appeal was
ineffective for failing to argue that his sentence was an abuse of the trial court’s discretion. The
trial court summarily dismissed the petition, and no appeal was taken from the dismissal.
¶ 16 On October 31, 2018, defendant filed a motion for leave to file a successive
postconviction petition that is the subject of this appeal. Therein, defendant claimed that his
mandatory life sentence violated both the eighth amendment of the United States Constitution
and the proportionate penalties clause of the Illinois Constitution. He contended that his sentence
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was invalid as applied to him because the sentencing court did not take into account his
youthfulness and minimal involvement in the offenses. Specifically, defendant referenced the
evolving neuroscience regarding the development of the brain. He also pointed out the unjustness
that would result from his sentence not being reduced where the sentence of his codefendant
Malone (who was the actual shooter and only a year younger) had been reduced to 45 years’
imprisonment under Miller v. Alabama, 567 U.S. 460 (2012). 1
¶ 17 Attached to defendant’s petition was his own affidavit, in which he averred that he was
raised “in a gang and drug infested environment,” he lost his father to gun violence when he was
a teenager, and he had no rank within the gang at the time of the shooting.
¶ 18 On June 14, 2019, the trial court denied defendant’s motion for leave to file a successive
postconviction petition, stating that defendant could not raise a claim under Miller because he
was not a juvenile at the time of the offense.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant argues that the trial court erred in denying him leave to file his
successive postconviction petition, which contained a claim that his sentence of mandatory life
imprisonment violated the proportionate penalties clause of the Illinois Constitution as applied to
him, where he was 18 years old at the time of the murder and was found guilty on the basis of
accountability. He asserts that his petition demonstrates sufficient cause and prejudice under the
Act such that further proceedings are warranted.
¶ 22 A. Standard of Review
1 Attached to defendant’s successive petition was the sentencing memorandum from Malone’s resentencing upon remand from this court (case No. 97 CR 1248602).
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¶ 23 The Act provides a method for a defendant to collaterally attack a conviction by asserting
that it resulted from a “substantial denial” of his constitutional rights. 725 ILCS 5/1221 (West
2018); People v. Hodges, 234 Ill. 2d 1, 9 (2009). The Act contemplates the filing of only one
petition without leave of court. People v. Lusby, 2020 IL 124046, ¶ 27. To obtain leave to file a
successive petition, the petitioner must demonstrate both cause for his failure to raise the claim in
the initial petition and prejudice from that failure. Id. To show cause, the petitioner must identify
an objective factor that impeded his ability to raise a specific claim during his initial
postconviction proceedings. Id.; see also People v. Pitsonbarger, 205 Ill. 2d 444, 462 (2002). To
show prejudice, the petitioner must demonstrate that the claim not raised during his initial
postconviction proceedings so infected the resulting conviction or sentence that it violated due
process. Lusby, 2020 IL 124046, ¶ 27. It is the petitioner’s burden to establish a prima facie
showing of cause and prejudice before any further proceedings on his claims can occur. People
v. Bailey, 2017 IL 121450, ¶ 24; People v. Smith, 2014 IL 115946, ¶ 30.
¶ 24 The cause-and-prejudice test is a more difficult standard to satisfy than that required at
the first stage for an initial postconviction petition. Smith, 2014 IL 115946, ¶ 35. “[L]eave of
court to file a successive postconviction petition should be denied when it is clear, from a review
of the successive petition and the documentation submitted by the petitioner, that the claims
alleged by the petitioner fail as a matter of law or where the successive petition with supporting
documentation is insufficient to justify further proceedings.” Id. Successive postconviction
petitions call into doubt that finality of criminal proceedings, and as such, the hurdles for such
petitions “are lowered only in very limited circumstances.” People v. Tenner, 381, 392 (2002).
Both prongs must be satisfied for leave of court to be granted. People v. Guerrero, 2012 IL
112020, ¶ 15. Whether the denial of defendant’s motion for leave to file a successive
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postconviction petition was proper is an issue that we review de novo. People v. Edgeston, 396
Ill. App. 3d 514, 518 (2009).
¶ 25 B. Miller and its Progeny
¶ 26 As an initial matter, we note that defendant made a claim pursuant to the eighth
amendment in his petition; however, on appeal, he does not raise any arguments based on the
eighth amendment. Thus, we need not address that claim, and as is made clear below, we would
reject such a claim as defendant was not a juvenile at the time of the offenses. See People v.
Franklin, 2020 IL App (1st) 171628, ¶ 49 (“It is well established that offenders who are 18 years
and older cannot raise a facial challenge to their sentences under the eighth amendment and the
Miller line of cases.”). Nevertheless, because defendant’s proportionate penalties clause claim is
rooted in the continuously evolving caselaw flowing from Miller, the substance of which
addressed eighth amendment protections, we find it essential to summarize that jurisprudence, as
it currently stands.
¶ 27 During the past two decades, the United States Supreme Court has issued several
decisions providing heightened protections for juvenile defendants in sentencing under the eighth
amendment of the United States Constitution, which prohibits cruel and unusual punishment. See
Roper v. Simmons, 543 U.S. 551, 574-75 (2005) (eighth amendment prohibits the death penalty
for juveniles who commit murder); Graham v. Florida, 560 U.S. 48, 82 (2010) (eighth
amendment prohibits mandatory life without parole sentences for juveniles who commit
nonhomicide offense); Miller, 567 U.S. at 479 (eighth amendment prohibits mandatory life
without parole sentences for juvenile offenders convicted of homicide). Specifically, the
rationale for the holding in Miller was that “children are constitutionally different from adults for
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purposes of sentencing,” as they are less mature and responsible than adults, and more impulsive
and vulnerable to peer pressure. 567 U.S. at 471-74.
¶ 28 In the wake of Miller, our supreme court has broadened protections for juvenile offenders
in several ways. First, the court has applied Miller to juvenile offenders who receive de facto life
sentences (People v. Reyes, 2016 IL 119271, ¶ 9), which the court has explicitly defined as a
prison term of more than 40 years (People v. Buffer, 2019 IL 122327, ¶ 40). Protections under
Miller were also extended in People v. Holman, 2017 IL 120655, ¶ 40, wherein our supreme
court held that “[l]ife sentences, whether mandatory or discretionary, for juvenile defendants are
disproportionate and violate the eighth amendment, unless the trial court considers youth and its
attendant characteristics.” The court further held that a juvenile may only be sentenced to life
imprisonment without parole if the trial court first determines that the juvenile defendant’s
conduct demonstrated “irretrievable depravity, permanent incorrigibility, or irreparable
corruption.” Id. ¶ 46.2 The court continued that such a determination should be made after the
trial court has considered the factors set forth in Miller, which include, but are not limited to: (1)
age at the time of the offense and any evidence of his “particular immaturity, impetuosity, and
failure to appreciate risks and consequences”; (2) family and home environment; (3) degree of
participation in the homicide and evidence of pressures that may have affected him; (4) any
incompetence, including an inability to deal with police officers or prosecutors and incapacity to
2 Recently, the United States Supreme Court issued its decision in Jones v. Mississippi, 141 S. Ct. 1307, 1318-19 (2021), holding that sentencing courts are not constitutionally mandated under the eighth amendment to make a finding of “permanent incorrigibility” before sentencing a juvenile defendant to life without parole. Nonetheless, the Court also expressly stated that states are not precluded from imposing any sentencing mechanisms they see fit in cases involving juvenile defendants convicted of murder, such as requiring extra factual findings, prohibiting sentences of life without parole for juveniles, or permitting appellate review based in proportionality for life-without-parole sentences. Id. at 1323. More recently, in Dorsey, 2021 IL 123010, ¶ 42, our supreme court suggested, without more, that, in light of Jones, the holding of Holman is “questionable[.]” Absent more, Holman continues as binding precedent which we are constrained to follow.
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assist his own counsel; and (5) prospects for rehabilitation. Id. (citing Miller, 567 U.S. at 477-
78).
¶ 29 Against this backdrop, we set forth the prevailing caselaw regarding proportionate
penalties clause claims for young adult offenders.
¶ 30 C. Proportionate Penalties Clause
¶ 31 The proportionate penalties clause of the Illinois Constitution 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. I, § 11. This clause
provides greater protections against excessive punishment than the eighth amendment of our
federal constitution. People v. Minniefield, 2020 IL App (1st) 170541, ¶ 35; People v.
Fernandez, 2014 IL App (1st) 120508, ¶ 63; see also People v. Clemons, 2012 IL 107821, ¶ 40
(the proportionate penalties clause “which focuses on the objective of rehabilitation, went
beyond the framers’ understanding of the eighth amendment and is not synonymous with that
provision.”), but see People v. Patterson, 2014 IL 115102, ¶ 106 (stating that the proportionate
penalties clause is “co-extensive with the eighth amendment’s cruel and unusual punishment
clause.”). A defendant’s sentence violates the proportionate penalties clause if “the punishment
for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the
moral sense of the community.” Leon Miller, 202 Ill. 2d at 38. The proportionate penalties clause
requires balancing the goals of retribution and rehabilitation, which necessitates a careful
consideration of all the factors in aggravation and mitigation. People v. Quintana, 332 Ill. App.
3d 96, 109 (2002). We may determine whether a sentence shocks the moral sense of the
community by considering both objective evidence and the community’s changing standards of
moral decency. People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008).
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¶ 32 At the time this appeal was filed, our supreme court, in two cases on direct appeal,
recognized that young adults (those between 18 and 21 years old) may rely on the evolving
neuroscience regarding brain development in juveniles and its correlation to maturity
underpinning the Miller decision in support of an as-applied challenge pursuant to the
proportionate penalties clause of the Illinois Constitution. See People v. Harris, 2018 IL 121932,
¶ 48; People v. Thompson, 2015 IL 118151, ¶¶ 43-44. In Thompson and Harris, the court
indicated that young defendants could demonstrate that their own specific characteristics and
circumstances were so like those of a juvenile that imposition of a life sentence, absent the
necessary safeguards established in Miller, would violate the proportionate penalties clause. The
court instructed, however, that such claims would best be pursued in the trial court or through
postconviction proceedings. Harris, 2018 IL 121932, ¶ 48 (holding that the as-applied, youth-
based sentencing claim of an 18-year-old defendant was “more appropriately raised” in
postconviction proceedings); Thompson, 2015 IL 118151, ¶¶ 43-44 (noting that a 19-year-old
defendant was “not necessarily foreclosed” from asserting such a claim in postconviction
proceedings).
¶ 33 Relying on this decisional law, defendant seeks review of his sentence in a postconviction
proceeding. Thus, we turn to the merits of defendant’s appeal.
¶ 34 D. Defendant’s Petition
¶ 35 Defendant argues that he has established both cause and prejudice for his successive
postconviction petition as required under the Act.
¶ 36 1. Cause
¶ 37 Defendant contends, and the State concedes, that he has sufficiently established cause for
his failure to raise this claim in his initial postconviction petition. However, as a reviewing court
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we are not bound by a party’s concession. People v. Carter, 2015 IL 117709, ¶ 22. Thus, we
commence our review, first with a recitation of the relevant sections of the Act.
¶ 38 Pursuant to section 122-1(f) of the Act, leave of court to file a successive postconviction
petition may only be granted if the petitioner first “shows cause by identifying an objective
factor that impeded his or her ability to raise a specific claim during his or her initial post-
conviction proceedings[.]” 725 ILCS 5/122-1(f) (West 2018). “ ‘[A] showing that the factual or
legal basis for a claim was not reasonably available to counsel *** would constitute cause under
this standard.’ ” Pitsonbarger, 205 Ill. 2d at 464 (quoting Strickler v. Greene, 527 U.S. 263, 283
n. 24 (2009)).
¶ 39 Here, defendant argues that he has demonstrated cause for his claim as Miller “and other
recent decisions” created new constitutional rules that were not available to him at the time he
filed his initial postconviction petition. Defendant filed his initial postconviction petition in 2003,
several years before Miller was decided in 2012. Defendant does not specifically identify the
“other recent decisions” in support of his argument regarding cause. In support of his argument
regarding prejudice, however, he cites to Harris, 2018 IL 121932, which was decided more than
a decade after his initial postconviction petition was filed.
¶ 40 We believe that People v. Davis serves as an appropriate starting point for our analysis of
the cause component of defendant’s petition. 2014 IL 115595. Davis involved a 14-year-old
defendant convicted of multiple murders, attempted murder, and home invasion and who was
sentenced to natural life in prison without parole. Id. ¶ 5. In September 2002, the defendant filed
what would have been his fourth petition for postconviction relief pursuant to the Act. Id. ¶ 7.
Relying on our supreme court’s decision in Leon Miller, the defendant argued that his natural life
sentence was unconstitutional because he did not actually participate in the act of killing. Id. He
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argued that his sentence violated the eighth amendment to the United States Constitution and,
further, that the statute requiring a mandatory life sentence violated the Illinois Constitution as
applied to a 14-year-old defendant. Id. Following a hearing, the circuit court dismissed the
petition, finding the defendant’s case to be distinguishable from Leon Miller, where that
defendant was not an active participant in the commission of the offense. Id. ¶ 8. This court, as it
had held with the defendant’s prior appeals from postconviction petition dismissals, affirmed the
circuit court. Id. ¶¶ 6-8.
¶ 41 In April 2011, the defendant filed a “Motion for Leave to File a Verified Successive Post-
Conviction Petition.” Id. ¶ 9. Again, the circuit court denied the defendant leave to file a
successive petition for relief pursuant to the Act and, again, the defendant appealed to this court.
Id. ¶¶ 9-10. While the defendant’s appeal was pending, the United States Supreme Court decided
Miller. Id. In reversing the circuit’s court’s dismissal, the appellate court held that Miller applies
retroactively on postconviction review. Id.
¶ 42 In affirming, our supreme court held that because Miller declared a new substantive rule,
it applies retroactively on collateral review. Id. ¶ 40. The court expressly stated that “[i]n terms
of the requisite cause and prejudice of the [Act], Miller’s new substantive rule constitutes ‘cause’
because it was not available earlier to counsel [citation], and constitutes prejudice because it
retroactively applies to defendant’s sentencing hearing. [Citation.]” Id. ¶ 42.
¶ 43 Additionally noteworthy, in Davis, the defendant, in reliance on the United States
Supreme Court’s “ ‘reaffirmation of the special status of children’ ” in Graham and Miller,
contended that his sentence violated both the proportionate penalties and the due process clauses
of the Illinois Constitution. Id. ¶ 31. In response, our supreme court noted that in “Leon Miller,
[it] expressly recognized the special status of juvenile offenders prior to Roper, Graham, and
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Miller.” Id. ¶ 45. Quoting from its opinion in Leon Miller, the court noted that “such special
status does not necessarily prohibit a sentence of natural life without parole where a juvenile
offender actively participates in the planning of a crime that results in multiple murders.” Id. ¶ 45
(quoting Miller, 202 Ill. 2d at 341-42).
¶ 44 We acknowledge that Miller provided a new substantive rule, coupled with a procedural
component. The substantive rule pronounced in Miller proscribed a mandatory sentence of life
without parole for a juvenile offender. 567 U.S. at 465. As to its procedural component, Miller
further requires that a sentencer consider a juvenile’s youth and its attendant characteristics prior
to imposing a sentence of life imprisonment without parole. Id. at 469-70. However, these rules,
at least as they are set out in Miller, are strictly applicable to juvenile defendants challenging a
life sentence under the eighth amendment. Defendant here is not a juvenile and is not challenging
his sentence under the eighth amendment on appeal. Thus, neither the substantive rule nor the
procedural component from Miller directly applies to defendant and his proportionate penalties
clause claim. Further, defendant received a mandatory natural life sentence. Accordingly, the
subsequently decided cases of Holman, Reyes, and Buffer (expanding Miller to discretionary
sentences and de facto life sentences) were also not necessary to the formulation of defendant’s
claim. See People v. Ross, 2020 IL App (1st) 171202, ¶ 21 (finding that the defendant
established cause because the supreme court cases of Buffer and Reyes decided that Miller
applied to de facto life sentences). In sum, Miller and its direct progeny (those involving
juveniles and the eighth amendment) do not provide a legal basis, or cause, for defendant’s
failure to include the claim in his initial postconviction petition.
¶ 45 Our finding is bolstered, and indeed, as we discuss later, is dictated by a recent decision
by our supreme court. After briefing was completed in this appeal, the court issued an opinion in
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People v. Dorsey, 2021 IL 123010, which briefly addressed this issue now before us. 3 In Dorsey,
the juvenile defendant claimed, inter alia, that his sentence violated the proportionate penalties
clause of the Illinois Constitution. Id. ¶ 68. The court rejected the defendant’s claim for multiple
reasons. The court first determined that the claim was forfeited and barred by res judicata. Id. ¶
70. Although the res judicata finding was determinative, the court went further, finding that the
defendant could not establish cause for his failure to raise the claim in his initial postconviction
petition. Id. ¶ 74.
¶ 46 Citing People v. LaPointe 2018 IL App (2d) 160903, the court stated that “Miller’s
unavailability prior to 2012 at best deprived [the] defendant of ‘some helpful support’ for his
state constitutional claim, which is insufficient to establish ‘cause.’ ” Id. Given the court’s
endorsement of LaPointe, we briefly summarize it here. In LaPointe, the defendant requested
leave to file a successive postconviction petition alleging that his life sentence for murder
violated both the eighth amendment of the United States Constitution and the proportionate
penalties clause of the Illinois Constitution. 2018 IL App (2d) 160903, ¶ 1. The defendant argued
that because Miller was issued after he was sentenced and applies retroactively to his case, he
had established cause. Id. ¶ 56. The court rejected the defendant’s proportionate penalties
argument, finding that the clause was “very much in existence” when his first petition was filed
and the defendant had the materials necessary “to assemble an argument that his sentence was
unconstitutionally severe in light of his youth[.]” Id. ¶ 55. The court explained that he had
established cause for his eighth amendment claim because Miller had created a “new legal right”;
3 In the main, Dorsey considered whether day-for-day credit should be factored into a determination of whether the defendant received a de facto life sentence as defined in People v. Buffer for purposes of an eighth amendment claim. 2021 IL 123010, ¶ 49. Finding that the defendant’s sentence offered an opportunity for release prior to serving Buffer’s 40 year de facto life sentence, the court held that defendant could not bring a successive postconviction petition with respect to his eighth amendment claim. Id. ¶ 50.
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however, his proportionate penalties clause claim did not “rest on the new substantive legal rule
that Miller created.” Id. ¶¶ 57-58. In particular, the nonexistence of Miller “merely deprived [the]
defendant of some helpful support” for his claim, which was insufficient to create cause. Id. ¶ 59.
The court rejected the proposition that all caselaw written in support of a new legal rule applies
retroactively and establishes cause for successive postconviction petitions, finding that doing so
would result in severely weakening section 122-1(f) of the Act. Id.
¶ 47 Prior to Dorsey, there had been a clear split of authority on the question of cause with
respect to proportionate penalties claims asserted by young adult defendants. See, e.g., People v.
Franklin, 2020 IL App (1st) 171628, ¶ 46; People v. Minniefield, 2020 IL App (1st) 170541, ¶
31; People v. Carrasquillo, 2020 IL App (1st) 180534, ¶ 108; People v. Ross, 2020 IL App (1st)
171202, ¶ 21 (all of which hold that a defendant, relying on the principles of Miller and its
progeny, establishes cause for filing a successive postconviction petition where those cases had
not been decided at the time the defendant filed his initial postconviction petition); but see
People v. LaPointe, 2018 IL App (2d) 16903; People v. Bilski, 2021 IL App (2d) 190779-U, ¶¶
21-27; People v. Hernandez, 2021 IL App (2d) 190112-U, ¶¶ 45-46; People v. Hoover, 2019 IL
App (2d) 170070, ¶ 37 (all of which hold that Miller and its progeny does not serve as cause to
satisfy the cause and prejudice test).
¶ 48 Since the issuance of Dorsey, two decisions, People v. Summers, 2021 IL App (4th)
190891-U, ¶ 25, and People v. Haines, 2021 IL App (4th) 190612, ¶ 45, both rendered by our
sister court in the Fourth District, relied on the supreme court’s opinion in Dorsey in concluding
that the young adult defendant in each case failed to establish cause for his proportionate
penalties clause claim based on Miller. But see People v. Horshaw, 2021 IL App (1st) 182047, ¶
123 (holding that defendant made a prima facie showing of cause for not bringing his
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proportionate penalties claim in his initial petition, where Miller was made retroactively
applicable to cases on collateral review after he had filed his initial postconviction petition). 4
The former case, Summers, summarily determines that the defendant there did not establish
cause, citing to LaPointe and Dorsey and stating that the unavailability of Miller “prior to 2012
did not prevent [the defendant] from raising such a claim in a postsentencing motion, on direct
appeal, or in his initial postconviction petition.” 2021 IL App (4th) 190891-U, ¶ 25. Haines, the
later decided case, contains a thorough analysis regarding the effect of Miller and Harris on the
issue of cause and is summarized below.
¶ 49 In Haines, the court, citing People ex rel. Bradley v. Illinois State Reformatory, 148 Ill.
413 (1894), stated that, in discussing minors who were between the ages of 16 and 21 years old,
“[i]t was already accepted in Illinois law that there was a significant developmental difference
between young adults and adults.” 2021 IL App (4th) 190612, ¶ 46. The court noted that Illinois
courts have long recognized and permitted as-applied claims under the proportionate penalties
clause and have repeatedly held that the proportionate penalties clause requires the sentencing
court to consider a defendant’s youth and mentality. Id. ¶¶ 42-43. The court found that these
principles of law constitute the basic foundation for the defendant’s proportionate penalties
clause claim, and the cited caselaw was all available to the defendant to formulate his claim prior
to the filing of his initial postconviction proceeding. Id. ¶ 44. The court further stated that the
brain research identified in Miller only serves as helpful support for the defendant’s claim under
the proportionate penalties clause because Illinois courts, dating back to the 19th-century, have
4 Although the court in Horshaw comments that the supreme court in Dorsey called the holding of People v. Holman, 2017 IL 120655, into question, the Horshaw court makes no mention of Dorsey’s expressed opinion regarding satisfaction of the Act’s cause requirement in the context of a young adult defendant’s proportionate penalty claim. 2021 IL App (1st) 182047, ¶¶ 127-28.
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acknowledged that there is a significant developmental difference between minors and adults. Id.
¶ 46 (citing People ex rel. Bradley, 148 Ill. At 422-23).
¶ 50 Briefly, Bradley involved the interpretation and application of a new statutory scheme
providing for a juvenile reformatory for those between the ages of 10 and 21 years. 148 Ill. at
418-19. The Bradley court also addressed an argument that the scheme was in violation of the
proportionate penalties clause of the Illinois constitution because the punishment was not
proportionate to the crime committed. Id. at 420. Specifically, the court addressed whether it was
unconstitutional for both “minors” and adults to be sentenced to 20 years’ imprisonment for the
same crime under the same circumstances. Id. at 423. The court, in concluding that it was not a
violation of the proportionate penalties clause, pointed out that a sentence to a reformatory is
markedly different than a prison sentence. Id. As relevant here, the court stated: “There is in the
law of nature, as well as in the law that governs society, a marked distinction between persons of
mature age and those who are minors,—the habits and the character of the latter are presumably,
to a large extent, as yet unformed and unsettled.” Id. Notably, the supreme court in Dorsey, in
finding that defendant did not establish cause for his proportionate penalties clause claim,
pointed out that the defendant there was well aware of Illinois’s long-standing recognition of the
special status of children, where he stated as much and cited to Bradley in his proportionate
penalties clause argument. Dorsey, 2021 IL 123010, ¶¶ 68, 74.
¶ 51 Returning to our supreme court’s conclusion in Dorsey that the defendant had failed to
establish cause for his proportionate penalties clause, we note that although we are not bound to
follow the decisions of our sister appellate court districts, (see O’Casek v. Children’s Home and
Aid Soc. of Illinois, 229 Ill. 2d 421, 440 (2008)), we enjoy no such discretion with respect to
decisions issued by our state supreme court (see People v. Artis, 232 Ill.2d 156, 164 (2009)).
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Arguably, because the defendant’s proportionate penalties claim in Dorsey was determined to
have been res judicata, the court needed not address whether the claim constituted cause under
the Act, rendering its opinion thereon dictum.5 “The term ‘dictum’ is generally used as an
abbreviation of obiter dictum, which means a remark or opinion uttered by the way.” Cates v.
Cates, 156 Ill. 2d 76, 80 (1993). Generally, such comments have no binding effect either as
authority or precedent within the rule of stare decisis. Id. However, “an expression of opinion
upon a point in a case argued by counsel and deliberately passed upon by the court, though not
essential to the disposition of the case, if dictum, is a judicial dictum.” Id. A judicial dictum is
entitled to significant weight and should be followed unless found to be erroneous. Id. “Even
obiter dictum of a court of last resort can be tantamount to a decision and therefore binding in the
absence of a contrary decision of that court.” Id. Thus, we believe that our supreme court’s
opinion as expressed in Dorsey regarding the cause requirement for successive postconviction
petitions, even if regarded as dictum, must be followed. Accordingly, consistent with the court’s
opinion in Dorsey, we, like the Fourth District in Summers and Haines, find that defendant has
not satisfied the cause prong of the cause-and-prejudice test. 6 Having so concluded, we need not
reach the prejudice component.
¶ 52 III. CONCLUSION
¶ 53 In sum, the rule announced in Miller does not provide cause for claims sought under the
proportionate penalties clause, where that clause of our state constitution has been in existence
5 Defendant’s initial postconviction petition, in which he could have raised the proportionate penalties claim, as well as his direct appeal, in which he argued that his mandatory life sentence was unconstitutional, implicates both forfeiture and res judicata. In light of the opinion expressed in Dorsey, we need not consider, whether either doctrine operates as a bar to defendant’s proportionate penalties clause claim here. 6 Although Dorsey involved a juvenile defendant, rather than a young adult defendant, we do not believe that distinction is relevant or that it would alter the court’s reasoning.
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long before the filing of defendant’s petition. See Dorsey, 2021 IL 123010, ¶ 74. Thus, we find
that defendant has not satisfied the cause-and-prejudice test for his successive postconviction
petition. Accordingly, we affirm the circuit court’s dismissal of his motion for leave to file a
successive petition under the Act.
¶ 54 Affirmed.
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