Opinion
No. 1-19-0534
04-23-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. JIMMY VELASQUEZ, Petitioner-Appellant.
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).
Appeal from the Circuit Court of Cook County.
99 CR 23271
Honorable Carol M. Howard, Judge Presiding.
JUSTICE CONNORS delivered the judgment of the court.
Justices Harris and Johnson concurred in the judgment.
ORDER
¶ 1 Held: Trial court properly denied petitioner leave to file a successive postconviction petition where petitioner's claim that his 48-year sentence for offenses he committed at the age of 23 was unconstitutional as applied to him failed to meet the cause-and-prejudice test; affirmed.
¶ 2 Petitioner, Jimmy Velasquez, appeals from the trial court's denial of his petition for leave to file a successive postconviction petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). On appeal, petitioner argues that this denial was in error because his claim that his sentence was unconstitutional as applied to him satisfied the cause-and-prejudice test. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 The facts of the underlying case will only be repeated as necessary for this appeal. See People v. Velasquez, 2013 IL App (1st) 101368-U. Following a jury trial, petitioner was convicted of first-degree murder and armed robbery that he committed when he was 23 years and 6 months old. The evidence showed that the victim exited a car that he was driving while the car was still moving and fell to the ground. Id. ¶ 4. Petitioner got out of the passenger side and shot the victim three times while the victim was on the ground. Id. Petitioner then removed something from the backseat of the victim's car and got into a waiting vehicle. Id. ¶ 6. Petitioner was arrested that evening and while in police custody, he admitted to shooting the victim, explaining that it was a drug deal that had "gone bad." Id. ¶ 9. At trial, petitioner told a different story and denied that he had killed the victim. Id.
¶ 5 At the sentencing hearing, petitioner's counsel argued that his juvenile offenses were approximately 10 years old, and that between 1994 and 1999, petitioner did not commit any violent crimes. Counsel stated that petitioner had a supportive family, and that the court was mandated to fashion a sentence that would restore petitioner to useful citizenship. The trial court, in sentencing petitioner, noted that petitioner murdered the victim on a "residential street." The court addressed petitioner's presentencing investigation report (PSI) which showed that petitioner had a "substantial criminal background," including offenses committed as a juvenile and as an adult. The court also "[c]onsidered all those factors which are appropriate in sentencing," including the petitioner's "background, his personal background, social history, education, employment, [and] other matters appropriate for sentencing." The court also noted that it "considered his criminal background and the facts of the case," and that it "must weigh all those together *** with his potential for rehabilitation." The court then stated, "[b]ased on those
factors and all other appropriate matters to consider for sentencing," petitioner would be sentenced to 48 years in prison.
¶ 6 Petitioner appealed, arguing that he was denied his statutory right to a speedy trial and received ineffective assistance of counsel. This court affirmed petitioner's conviction and sentence on direct appeal. People v. Velasquez, 351 Ill. App. 3d 1170 (2004).
¶ 7 Petitioner filed a pro se petition for postconviction relief, alleging that the State failed to meet its burden of proof beyond a reasonable doubt, he received ineffective assistance of trial counsel, and the State used perjured testimony to secure the armed robbery charge. Petitioner supplemented that petition with an allegation that his indictment was void and invalid because the first-degree murder statute, as amended, did not exist at the time of his conviction. The trial court dismissed the petition as untimely and lacking merit. On appeal, petitioner claimed that appointed postconviction counsel failed to satisfy Illinois Supreme Court Rule 651(c) requirements. We affirmed the judgment of the circuit court. Velasquez, 2013 IL App (1st) 101368-U.
¶ 8 On August 14, 2018, petitioner filed a pro se petition for leave to file a successive postconviction petition. In his petition, petitioner claimed that his 48-year sentence was unconstitutional. He argued that his sentence was a "de facto life sentence imposed while he was a young adult," and that it violated the proportionate penalties clause of the Illinois Constitution. In its written order denying petitioner leave to file a successive postconviction petition, the circuit court noted that petitioner had put forth two claims in his petition: (1) his 48-year sentence was a de facto life sentence and therefore unconstitutional under Miller v. Alabama, 567 U.S. 460 (2012), and its progeny; and (2) his sentence violated the proportionate penalties clause of the Illinois Constitution because it was not imposed with the objective of restoring petitioner
to useful citizenship. The court found that petitioner failed to meet the cause and prejudice standard and that the claims raised were otherwise frivolous and patently without merit.
¶ 9 The circuit court found that petitioner was unable to demonstrate that any prejudice occurred from his failure to assert a Miller claim in his prior petitions, and that had his claim been presented in the initial petition, it would have been dismissed as meritless. The court found Miller did not apply to petitioner because he was 23 ½ years old at the time of his crime and not subject to a mandatory life sentence. The court also noted that neither the United States Supreme Court nor the Illinois Supreme Court had expanded Miller to apply to defendants "who are 18 or older."
¶ 10 The court further found, in addressing petitioner's proportionate penalties clause claim, that "[n]othing presented at sentencing or in the petition shows that sentence to be disproportionate to the seriousness of the offense." Petitioner now appeals.
¶ 11 II. ARGUMENT
¶ 12 On appeal, petitioner contends that the trial court should have granted him leave to file a successive postconviction petition because his claims met the cause-and-prejudice test. The Act provides a method for criminal defendants to assert that "in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or the State of Illinois or both." 725 ILCS 5/122-1(a)(1) (West 2016). Section 122-1(f) of the Act addresses successive postconviction petitions as follows:
"(f) Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of the court may be granted only if petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this
subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceeding so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122-1(f) (West 2016).
¶ 13 This cause-and-prejudice test is a higher standard than the frivolous-or-patently-without-merit standard employed at the first stage of a defendant's initial petition. People v. Smith, 2014 IL 115946, ¶ 35. While in the first stage the Act only requires a petitioner allege a claim that has an arguable basis in law or fact (People v. Tate, 2012 IL 112214, ¶ 9), a petitioner requesting leave to file a successive postconviction petition must make a prima facie showing of cause and prejudice (People v. Bailey, 2017 IL 121450, ¶ 24) and "submit enough in the way of documentation to allow a circuit court to make that determination" (People v. Tidwell, 236 Ill. 2d 150, 161 (2010)).
¶ 14 The circuit court should deny leave to file a successive petition "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." Smith, 2014 IL 115946, ¶ 35. We review a circuit court's denial of leave to file a successive postconviction petition de novo. Bailey, 2017 IL 121450, ¶ 13.
¶ 15 Petitioner argues that the circuit court erred in denying him leave to file a successive postconviction petition because he satisfied the cause-and-prejudice test with respect to his claim that his 48-year sentence violates the eighth amendment (U.S. Const., amend. VIII) and the
Illinois proportionate penalties clause (Ill. Const. 1970, art. I, § 11). He argues that the cause prong is met because Miller and its progeny were not decided until after his initial postconviction petition was filed and the prejudice prong is met because his sentence is unconstitutional as applied to him. The State responds that Miller and its progeny does not apply to petitioner because petitioner was 23 years old at the time the crime was committed.
¶ 16 In Miller, the United States Supreme Court held that the eighth amendment prohibits mandatory life sentences without the possibility of parole for all juvenile offenders. 567 U.S. at 489. The Supreme Court noted that "children are constitutionally different from adults for purposes of sentencing." Miller, 567 U.S. at 471. The Court recognized that children have "a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking." Id. Children are especially vulnerable to "negative influences and outside pressures" from family and peers and are unable to extricate themselves from where they live. Id. And finally, they are "less likely to be irretrievably depraved." Id.
¶ 17 The Illinois Supreme Court subsequently 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 circumstances." People v. Holman, 2017 IL 120655, ¶¶ 3, 40. Our supreme court has since held that a prison term over 40 years is considered a de facto life sentence. People v. Buffer, 2019 IL 120655, ¶ 40 ("a prison term of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence.")
¶ 18 In People v. Harris, 2018 IL 121932, ¶ 1, the defendant was 18 years and 3 months old at the time of his offenses. He was convicted of first-degree murder, attempted first-degree murder, and aggravated battery with a firearm and was sentenced to a mandatory minimum aggregate term of 76 years in prison. Id. The defendant appealed his sentence, raising an as-applied
challenge under the proportionate penalties clause and a facial challenge under the eighth amendment. Id. ¶¶ 37, 53. The defendant in Harris argued on direct appeal that eighth amendment Miller protections for juveniles should be applied to all "young adults under the age of 21." Id. ¶ 53. The court rejected the defendant's facial argument that Miller should apply categorically to offenders between the ages of 18 and 21, reasoning that while the Supreme Court has "unmistakably instructed that youth matters in sentencing, it nevertheless has not "extended its reasoning to young adults age 18 or over." (Internal quotation marks omitted.) Id. ¶¶ 54, 56. The court noted that claims for extending Miller to offenders 18 years of age or older have been "repeatedly rejected." Id. ¶ 61.
¶ 19 Our supreme court in Harris further found that the defendant's as-applied challenge under the proportionate penalties clause was premature. The court instructed that the claim was more appropriately resolved under the Act than on direct appeal so that evidence could be presented as to the defendant's specific characteristics. Id. ¶¶ 46, 48. Accordingly, our supreme court opened the door to the availability of Miller protections to young adult offenders aged 18 years or older via an as-applied challenge under the proportionate penalties clause. Id. ¶ 48.
¶ 20 Following our supreme court's decision in Harris, this court, after being instructed to reconsider the case in light of Harris, found that a 19-year-old offender's mandatory life sentence was unconstitutional under the proportionate penalties clause as applied to him. People v. House, 2019 IL App (1st) 110580-B, pet. for leave to appeal granted, No. 125124 (Jan. 29, 2020). We reasoned that while the defendant was not a juvenile at the time of the offense, "his young age of 19 is relevant under the circumstances of this case." Id. ¶ 46. Also relevant were the facts that the defendant had served only as a lookout during the commission of the offense, he received the same sentence of mandatory life in prison as the actual shooter, and the nature of
the defendant's sentence precluded the trial court from considering the goal of rehabilitation in imposing the sentence. Id. ¶¶ 46, 64.
¶ 21 Since Harris and House, this court has issued several decisions rejecting attempts by petitioners who were 18 years old or older at the time of their offenses to file successive postconviction petitions raising as-applied challenges under the proportionate penalties clause. See, e.g., People v. Carrion, 2020 IL App (1st) 171001, ¶¶ 30-33; People v. Gomez, 2020 IL App (1st) 173016, ¶¶ 37-38; People v. McClurkin, 2020 IL App (1st) 171274, ¶¶ 20-23; People v. Rivera, 2020 IL App. (1st) 171430, ¶ 78; People v. Handy, 2019 IL App (1st) 170213, ¶¶ 40-41; People v. Moore, 2020 IL App (4th) 190528, ¶¶ 38-41; People v. White, 2020 IL App (5th) 170345, ¶¶ 31.
¶ 22 In other cases, this district and other districts of the appellate court have reversed summary dismissals of first-stage postconviction petitions and reversed denials of leave to file successive postconviction petitions, where offenders aged 18 or older raised claims that in light of recent developments in brain science, lengthy sentences imposed on them without considering their youth and rehabilitative potential violated the proportionate penalties clause as applied to them. See, e.g., People v. Franklin, 2020 IL App (1st) 171628, ¶¶ 68-69; People v. Daniels, 2020 IL App (1st) 171738, ¶¶ 2, 34; People v. Ruiz, 2020 IL App (1st) 163145, ¶¶ 1, 38-40; People v. Johnson, 2020 IL App (1st) 171362, ¶¶ 1-2, 15-16; People v. Carrasquillo, 2020 IL App (1st) 180534, ¶ 109; People v. Minniefield, 2020 IL App (1st) 170541, ¶ 47; People v. Bland, 2020 IL App (3d) 170705, ¶ 14. Several of these cases were issued with dissents. Franklin, 2020 IL App (1st) 171628, ¶¶ 75-98 (Burke, J. dissenting); Ruiz, 2020 IL App (1st) 16314, ¶¶ 74-92 (Pierce, J. dissenting); Johnson, 2020 IL App (1st) 171362, ¶¶ 37-52 (Pierce, J. dissenting). Significantly, the defendants in each of these cases, while 18 years of age or older, were all under the age of
21. We find this critical to our analysis because in People v. Rivera, 2020 IL App (1st) 171430, ¶ 26, we stated that because the defendant was over the age of 21, "any arguments that could be made based on the statutes and cases cited above do not apply to him." We further explained this proposition in People v. Humphrey, 2020 IL App (1st) 172837, ¶ 34:
"[D]rawing a line [at 21] is in keeping with other aspects of criminal law and society's current general recognition that 21 is considered the beginning of adulthood. In Illinois a person under the age of 21 when he or she commits first degree murder is now eligible for parole review after serving 20 or more years of his or her sentence. 730 ILCS 5/5-4.5-115 (West Supp. 2019). The Illinois legislature has also prohibited the sale of nicotine and tobacco products to persons under 21 (720 ILCS 675/1 (West Supp. 2019)), prohibited the sale of alcohol products to persons under 21 (235 ILCS 5/6-16 (West 2016)); and made possession of a firearm by those under 21 an aggravating factor for aggravated unlawful use of a weapon. (720 ILCS 5/24-1.6(a)(1), (a)(3)(I), West 2016)).
¶ 23 In Humphrey, we found that "individuals who are 21 years or older when they commit an offense are adults for purposes of a Miller claim." Id. ¶ 33. We noted in Humphrey that even if there were some basis for an individual aged 21 or older at the time of the offense to raise an as-applied Miller claim under special circumstances, the 21-year-old defendant's "circumstances would not appear to meet that criteria." Id. ¶ 35. The defendant in Humphrey had received a discretionary sentence, with the court making a finding that the defendant was beyond rehabilitation. Id. Further, the defendant was not a mere lookout. Id. He played an active role in the crimes committed, including raping the victim. Id. The defendant also had previously been adjudicated a delinquent for armed robbery and murder. Id. This court found that "under the
current state of the law, [defendant]'s claim cannot meet the cause-and-prejudice standard for an as-applied challenge under either the eighth amendment or the proportionate penalties clause." Id. ¶ 36.
¶ 24 Similarly, in the case at bar, petitioner was over the age of 21 at the time of the offense, and therefore was an adult for purposes of a Miller claim. Id. ¶ 33. Moreover, petitioner was not merely a lookout in this case. Rather, he shot the victim three times while he was lying on the ground. Petitioner also had a violent past. He spent two years in juvenile detention after being found delinquent for criminal damage to property. He also had delinquency adjudications for robbery and possession of a stolen motor vehicle. Petitioner's prior adult convictions included burglary, unlawful use of a weapon, possession of a controlled substance, and burglary.
¶ 25 Defendant only cites to one case, People v. Savage, 2020 IL App (1st) 173135, ¶ 76, where an Illinois court has found that Miller could potentially apply to a defendant over the age of 21 years old. We note that Savage was decided one month after we held in Humphrey that "individuals who are 21 years or older when they commit an offense are adults for purposes of a Miller claim." 2020 IL App (1st) 172837, ¶ 33. In Savage, the panel nevertheless found that while the "defendant was seven months past his 21st birthday at the time of the offense," his argument in his first-stage postconviction petition that mental health issues may lower a defendant's functional age had support in recent case law. Id. ¶ 70 (citing House, 2019 IL App (1st) 110580-B, ¶ 59, pet. for leave to appeal granted, No. 125124 (Jan. 29, 2020)). The court noted that the defendant's petition alleged that he had been a drug addict since he was nine years old, he was using drugs at the time of the offense, and he was attempting to rob a drug house when the offenses in the case occurred. Id. ¶ 71. His petition further alleged that his long-term
addiction and his young age left him "more susceptible to peer pressure" and "more volatile in emotionally charged settings." Id.
¶ 26 The Savage court found that those allegations found support in a hospital discharge report that was filed in connection with the preparation of the defendant's PSI, which indicated that defendant began abusing drugs when he was 9 years old. Id. ¶ 72. While the trial court mentioned the defendant's age, the record "did not show that the trial court considered the attributes of young adulthood or these attributes in light of defendant's lifelong drug addiction." Id. ¶ 74.
¶ 27 Importantly, the court in Savage distinguished Rivera, 2020 IL App (1st) 171430, where this court denied a defendant, who was 23 years old at the time of the offense, leave to file a successive postconviction petition. The court in Savage stated that the defendant in Rivera "made no allegations in either his petition or in his appellate briefs that there were any issues particular to him, such as drug addiction or mental health, that rendered him functionally younger than his chronological age." Id. ¶ 78. Instead, the court noted, the defendant in Rivera relied on "general statements in recent case law about the impetuosity of the young that were generically applicable to all young adults." Id.
¶ 28 Similarly here, petitioner stated in his successive postconviction petition that the "brain does not finish developing until the mid-20s, far later than was previously thought." He argued that because he had not yet reached his mid-20s, "his actions were not likely to be evidence of irretrievable depravity." There were no allegations regarding his upbringing, his mental health, or anything particular to him that would render him functionally younger than his chronological age. Accordingly, the successive postconviction petition and supporting documentation were insufficient to satisfy further proceedings. Smith, 2014 IL 115946, ¶ 35 (leave of court to file a
successive postconviction petition should be denied when it is clear from a review of the petition and supporting documentation that the claims alleged by the petitioner fail as a matter of law or are insufficient to justify further proceedings). Because Miller and its progeny do not apply to petitioner, we find that petitioner's claim cannot meet the cause-and-prejudice standard for an as-applied challenge under either the eighth amendment or the proportionate penalties clause. See Humphrey, 2020 IL App (1st) 172837, ¶ 38.
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, we affirm the circuit court's denial of petitioner's motion for leave to file a successive postconviction petition.
¶ 31 Affirmed.