Opinion
1-17-1132
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOVANIE LONG, Defendant-Appellant.
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. No. 00 CR 20601 (02) Honorable Erica L. Reddick, Judge Presiding.
JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.
ORDER
CONNORS JUSTICE.
¶ 1 Held: Statutory scheme that governed defendant's sentence was not facially unconstitutional; defendant forfeited as-applied challenge to his sentence; postconviction counsel fulfilled duties under Rule 651(c) and provided reasonable assistance; affirmed.
¶ 2 Defendant, Jovanie Long, appeals an order of the circuit court that dismissed his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) at the second stage of proceedings. On appeal, Long contends that, under the proportionate penalties clause of the Illinois Constitution, the statutory scheme that governed his sentence is facially unconstitutional and unconstitutional as applied to him. In the alternative, Long asserts that his postconviction counsel did not comply with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) and provided unreasonable assistance. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Long and his codefendant, Xavier Walker, were charged with first degree murder in connection with the shooting death of Marek Majdak on May 13, 2000, near the intersection of Ohio and Cicero streets in Chicago. An indictment return sheet listed Long's date of birth as March 16, 1979. An arrest report for the offense indicated that Long's date of birth was February 16, 1976. Long and Walker were tried in simultaneous but severed bench trials.
¶ 5 The evidence at trial showed that after the incident, detectives received information that Long and Walker were involved. Walker was brought to the police station and he gave a videotaped statement implicating himself and Long in the shooting. Long later made a videotaped statement as well, in which he described the events of May 13 in part as follows. That night, he and Walker were trying to "hit a lick" and Long was armed with a .45 caliber gun. At around 1 a.m., Long and Walker saw a man (later identified as Majdak) in a minivan and Walker flagged him down. Long approached the van, climbed in the passenger side, and pointed his gun at Majdak. A struggle ensued and Long shot Majdak once. Majdak tried to run across the street, but Long chased him and shot him again. After Majdak fell, Long and Walker removed money from his pocket.
¶ 6 Other evidence at trial included a statement that Maurice Wright gave to an assistant state's attorney and his grand jury testimony, wherein Wright stated in part that Long and Walker told him that they were involved in the murder of a man on May 13. According to Wright, Long and Walker slept at his house that night and Long told Wright that he had thrown the murder weapon on train tracks near Chicago Avenue. Wright testified at trial that he did not remember making these statements. The trial court ultimately found Long guilty of first degree murder.
¶ 7 Long's presentence investigation report (PSI) indicated that his date of birth was February 16, 1976, and further stated in part as follows. Long attended school through eighth grade and joined the Vice Lords when he was 13 years old, though he was no longer affiliated with the gang. After Long's parents separated when he was two years old, his mother became his primary caretaker. He maintained a good relationship with his father and was most recently employed by his father's industrial cleaning company. At the time of the offense, Long lived with his uncle. Long wanted to earn his GED.
¶ 8 A list of Long's criminal history from the Chicago Police Department stated that his date of birth was February 16, 1979.In August 1994, Long was found delinquent following an attempted armed robbery and sentenced to the Juvenile Department of Corrections. As an adult, Long pled guilty in 1998 to a drug-related offense for which he received probation and was found guilty in 2001 of possession of a controlled substance and sentenced to one year in prison.
¶ 9 At Long's sentencing hearing, defense counsel stated in mitigation that he would rely on the PSI and noted that Long was raised by his uncle, who was in the courtroom. Defense counsel stated that based on Long's age, the information in his PSI, and Long's lack of prior violent crimes, he requested "a reasonable sentence within the range mandated by the statute."
¶ 10 The trial court sentenced Long to a 45-year prison term, which consisted of 20 years for first degree murder and 25 years because a firearm was discharged that caused death. The trial court stated:
" [T] he evidence quite clearly established that you did in fact discharge a handgun which resulted in the shooting death of the victim.
The law requires a minimum sentence of really what is 45 years in the Illinois Department of Corrections as a minimum. That is all of your productive life and then some."
¶ 11 Long filed a motion to reconsider his sentence, asserting that the 25-year firearm enhancement violated the proportionate penalties clause of the Illinois Constitution. The motion was denied.
¶ 12 Long's notice of appeal indicated that his date of birth was February 16, 1976. Long contended on direct appeal that his mittimus incorrectly reflected multiple convictions for first degree murder even though there was only one victim. In a summary order issued on December 29, 2006, this court vacated all but one of the convictions. People v. Long, 1-05-1532 (2006) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 13 On October 30, 2007, Long filed a pro se postconviction petition. Among other issues, Long challenged his confession and statements made at trial by the prosecutor, and asserted that he received ineffective assistance of trial counsel. Long also contended that the firearm enhancement was unconstitutionally applied because an aggravating factor was inherent in the offense. Long further asserted that the trial court's statement that his sentence was "all of your productive life and then some" violated article 1, section 11 of the Illinois Constitution, whose "objective is to restore one back to useful citizenship after the seriousness of the offense."
¶ 14 Long's pro se petition was apparently misfiled by the clerk's office. In 2013, because more than 90 days had passed with no action taken, the circuit court advanced the petition to the second stage of proceedings and appointed counsel. In court on various dates in 2014 and 2015, postconviction counsel provided updates on his investigation. After counsel reported that his investigation was done, the court asked if he was supplementing or amending the pro se petition. Counsel responded, "Yes."
¶ 15 On September 9, 2015, counsel stated that he was looking for a witness who had come up during conversations and correspondence with Long and asked for a short status date, after which he was planning to file "my amendment to his petition." The State asked that counsel or the court "consider that whatever [counsel] files as a superseding document, so you only have to look at one document, I only have to respond to one document." The court noted that it was counsel's choice to supplement or amend the petition. Counsel stated, "I just do what the statute says, which says to file an amendment."
¶ 16 In the meantime, on November 17, 2015, Long filed a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)) that sought to set aside the 25-year firearm enhancement that was part of his sentence. Long stated that the firearm enhancement was not pled and proven beyond a reasonable doubt. Further, neither his indictment nor his order of commitment included wording related to an enhanced sentence. On December 7, 2015, counsel stated in court that he told Long that the issues in the section 2-1401 petition would be added to the postconviction petition, and that Long agreed to withdraw the section 2-1401 petition.
¶ 17 On April 13, 2016, counsel filed an "Amendment to Pro Se Petition for Post Conviction Relief" that raised two issues: 1) Long's constitutional rights were violated when detectives used Walker's illegally obtained videotaped confession to obtain Long's confession, and 2) Long was arrested without probable cause.
¶ 18 Counsel also filed a certificate under Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013), stating:
"1. I have communicated with the petitioner *** by phone and letter to ascertain
his claims of a deprivation of his constitutional rights.
2. I have examined the transcripts of Petitioner's trial and sentencing, and have interviewed witnesses named in Petitioner's pro se petition.
3. I have examined Petitioner's pro se Petition for Post-Conviction Relief, and have prepared an amendment thereto."
¶ 19 The State filed a motion to dismiss the petition, which the circuit court granted on April 13, 2017. The court found that Long failed to make a substantial showing of a constitutional violation.
¶ 20 Long timely appealed.
¶ 21 II. ANALYSIS
¶ 22 A. Facial Challenge
¶ 23 On appeal, Long contends that the statutory scheme that governed his sentence is facially unconstitutional. Long asserts that the statutory scheme that requires trial courts to impose a de facto life without parole sentence-the 25-year firearm enhancement and the Truth in Sentencing Act as applicable to first degree murder-violates the proportionate penalties clause of the Illinois Constitution for the entire class of young adult offenders who, like Long, were in their early 20s at the time of their offense. Long points to recent research in neurobiology and developmental psychology that shows that the brain does not finish developing until one's mid-20s. Long also notes that there are laws and societal rules that divide young adults from fully mature adults at an age over 21, such as those pertaining to health insurance, tax regulations, and renting a car, among various others. Long further asserts that life without parole sentences are disproportionately imposed on African Americans and the moral sense of the community has recently shifted so as to find that such racial inequities shock the conscience of the community.
¶ 24 Long's 45-year sentence was based on a sentencing range of 20 to 60 years for first degree murder (730 ILCS 5/5-8-1 (a)(1)(a) (West 2000)), a firearm enhancement of 25 years to natural life (730 ILCS 5/5-8-1(d)(iii) (West 2000)), and a provision that a defendant imprisoned for first degree murder shall not receive good conduct credit and must serve the entire sentence imposed by the court (730 ILCS 5/3-6-3(a) (2) (i) (West 2000)). Long received the mandatory minimum sentence.
¶ 25 Long's exact age at the time of the offense is disputed. Various documents in the record indicate that Long was born in 1976 or 1979, making him either 24 or 21 years old. Long asserts that the weight of the evidence suggests that his date of birth is February 16, 1979, including his record from the Illinois Department of Corrections website, of which we may take judicial notice. See People v. Peacock, 2019 IL App (1st) 170308, ¶ 4 n.1 (court may take judicial notice of information appearing on the IDOC website). We assume only for the purpose of this appeal that he was born on February 16, 1979, and was a few months over 21 years old at the time of the offense. Even so, Long's sentencing challenges fail.
¶ 26 "A party raising a facial challenge must establish that the statute is unconstitutional under any possible set of facts, while an as-applied challenge requires a showing that the statute is unconstitutional as it applies to the specific facts and circumstances of the challenging party." People v. Harris, 2018 IL 121932, ¶ 38. Long asserts that a facial challenge includes a challenge to the constitutionality of a statute as to an entire class of people. See id., ¶¶ 70, 73 (Burke, J., specially concurring) (constitutional claim brought against a mandatory minimum sentence is typically labeled a facial challenge; the defendant raised a facial challenge where he argued that it was unconstitutional to sentence anyone younger than 21 to a mandatory life sentence for any crime). A party may challenge the constitutionality of a statute at any time. People v. Wagener, 196 Ill.2d 269, 279 (2001). Whether a statute is unconstitutional is a question of law that we review de novo. People v. Taylor, 2015 IL 117267, ¶ 11.
¶ 27 The law related to sentencing juvenile and young adult defendants is evolving. The United States Supreme Court has held that the eighth amendment of the federal constitution prohibits the execution of juvenile offenders (Roper v. Simmons, 543 U.S. 551, 578-79 (2005)), life sentences without parole for juvenile offenders who commit nonhomicide crimes (Graham v. Florida, 560 U.S. 48, 82 (2010)), and mandatory life sentences without the possibility of parole for all juvenile offenders (Miller v. Alabama, 567 U.S. 460, 489 (2012)). Miller applies retroactively. Montgomery v. Louisiana, 577 U.S. 190, 212 (2016). According to the Supreme Court, "children are constitutionally different from adults for purposes of sentencing." Miller, 567 U.S. at 471. Juveniles "have diminished culpability and greater prospects for reform," and so are "less deserving of the most severe punishments." (Internal quotation marks omitted.) Id. In People v. Holman, 2017 IL 120655, ¶ 40, our supreme court expanded Miller to apply to discretionary life sentences. Before sentencing a juvenile defendant to life without parole, the trial court must consider the defendant's youth and attendant characteristics. Id. ¶ 46 (citing Miller, 567 U.S. at 477-78, and characteristics that must be considered). In People v. Buffer, 2019 IL 122327, ¶ 41, our supreme court held that a prison sentence of over 40 years constitutes a de facto life sentence.
¶ 28 Federal cases have generally drawn a line at 18 years of age for sentencing claims, but the proportionate penalties clause of the Illinois Constitution offers broader relief. People v. Savage, 2020 IL App (1st) 173135, ¶ 61. The proportionate penalties clause "embodies our evolving standard of decency" (People v. Minniefield, 2020 IL App (1st) 170541, ¶ 35), and 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. A penalty violates the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community. People v. Sharpe, 216 Ill.2d 481, 487 (2006).
¶ 29 Under the proportionate penalties clause, Long seeks to extend the principles espoused in the Miller line of cases to young adults in their early 20s. Our supreme court has allowed young adults between the ages of 18 and 20 to raise as-applied challenges to their sentences under the proportionate penalties clause, in that "their own specific characteristics at the time of their offense were so like those of a juvenile that *** a life sentence, absent the safeguards established in Miller," violates the proportionate penalties clause. People v. Ross, 2020 IL App (1st) 171202, ¶ 18. See Harris, 2018 IL 121932, ¶ 48 (the defendant, who was 18 years and 3 months old, could bring an as-applied challenge to his mandatory 76-year sentence in a postconviction proceeding); People v. House, 2019 IL App (1st) 110580-B, ¶ 64 (finding that, based on certain considerations, a mandatory natural life sentence for a 19-year-old violated the proportionate penalties clause). This court has even advanced to the second stage of proceedings the pro se petition of a 22-year-old defendant who raised an as-applied challenge to his sentence. Savage, 2020 IL App (1st) 173135.
¶ 30 Yet, there is no basis in our case law or statutes to expand Miller and its progeny to deem the statutory scheme at issue unconstitutional on its face for all defendants in their early 20s. As the State points out, multiple statutes support the age of 21 as the dividing line between young adults and fully mature adults. See e.g., 730 ILCS 5/5-4.5-115(b) (West 2020) (addressing special parole provisions for people who were under 21 years old at the time of the offense); 730 ILCS 5/5-4.5-95(b) (Class X sentencing applies to defendants over the age of 21); 705 ILCS 405/5-755 (West 2020) (duration of wardship proceedings terminate at the age of 21); 720 ILCS 675/1 (West 2020) (prohibiting sale of tobacco products, electronic cigarettes, and alternative nicotine products to people under 21); 760 ILCS 20/2 (West 2020) (defining an adult in the Uniform Transfers to Minor Act as "an individual who has attained the age of 21 years").
¶ 31 The definition of a youthful offender may be expanding, but it does not yet include persons who are over 21 years old. And this court cannot make that leap. To the extent such a further extension in the law is warranted, it should be made by our legislature or our highest court. People v. Rivera, 2020 IL App (1st) 171430, ¶ 27. Our legislature constructs public policy (Phoenix Insurance Co. v. Rosen, 242 Ill.2d 48, 65 (2011)), determines the penalties required to protect society's interests (People v. Williams, 263 Ill.App.3d 1098, 1104)), and has the power to prescribe mandatory sentences (People v. Miller, 202 Ill.2d 328, 336 (2002)). We reject Long's claim that the statutory scheme under which he was sentenced is facially unconstitutional.
¶ 32 B. As-Applied Challenge
¶ 33 Long next states that the statutory scheme is unconstitutional as applied to him under the proportionate penalties clause, contending that some of the mitigating factors of youth apply to him but could not be considered by the trial court. Long asserts that he joined a street gang at the age of 13, had only an eighth grade education, and lived with his uncle from the age of 17 to 21, suggesting that he had not yet fully reached the level of maturity necessary to be completely independent. Long also states that the crime at issue may have been due to the transitory feature of young adults being impulsive and more volatile in emotionally charged situations. Further, he had only been imprisoned as an adult one time for a one-year term.
¶ 34 The State asserts that Long forfeited his as-applied challenge because it was not included in his amended petition and the amended petition superseded the pro se petition. The State further contends that neither the pro se petition nor the section 2-1401 petition included the sentencing claims that Long now makes on appeal. Long disputes that the amended petition superseded his pro se petition and states that his pro se petition sufficiently raised an as-applied challenge.
¶ 35 As background, the Act provides a three-step process for a convicted defendant to assert a substantial denial of his constitutional rights during the proceedings that led to his conviction. People v. Walker, 2015 IL App (1st) 130530, ¶ 11. Proceedings begin when a petition is filed in the circuit court where the original proceeding took place. People v. Hodges, 234 Ill.2d 1, 9 (2009). The circuit court must independently review the petition within 90 days of its filing and determine whether the petition is frivolous or patently without merit. People v. Edwards, 197 Ill.2d 239, 244 (2001). If the petition is not summarily dismissed within the 90-day period, then the circuit court appoints counsel if the defendant is indigent and has requested counsel. People v. Lara, 317 Ill.App.3d 905, 907 (2000). Counsel must consult with the defendant, examine the record, and amend the petition, if necessary, to ensure that the defendant's contentions are adequately presented. People v. Pendleton, 223 Ill.2d 458, 472 (2006). The State may move to dismiss or answer the petition. Id. If the motion to dismiss is denied or the State answers the petition, the proceeding advances to a third-stage evidentiary hearing. Id. at 472-73.
¶ 36 To review, Long's pro se petition asserted that his sentence violated the proportionate penalties clause. Long's section 2-1401 petition, which was withdrawn, challenged the 25-year firearm enhancement. Long's amended petition did not challenge his sentence and consisted of two other claims: one related to his confession and the other asserting that he was arrested without probable cause.
¶ 37 We agree with the State that Long forfeited his as-applied claim. When an amended petition does not contain an issue that was included in the original pro se petition, that issue is no longer before the court. People v. Phelps, 51 Ill.2d 35, 38 (1972). See also Barnett v. Zion Park District, 171 Ill.2d 378, 384 (1996) (when amended pleading that is complete and does not refer to or adopt prior pleading, the prior pleading is no longer part of the record and is effectively abandoned or withdrawn); People v. Bernard, 2014 IL App (2d) 130924, ¶ 10 (axiomatic that amended pleadings supersede prior pleadings). Long's amended petition did not refer in any way to his pro se petition. Although the circuit court may allow an amended petition to be in addition to the original petition (725 ILCS 5/122-5 (West 2016)), the record does not indicate that the circuit court did so here. After the amended petition was filed, neither the parties nor the court treated the sentencing claims as part of the second stage of proceedings.
¶ 38 Long incorrectly cites People v. Bell, 2014 IL App (3d) 120637, ¶ 15, to assert that the appellate court has equated "amendments to" an original petition with "supplement[al] petitions." In that case, the court considered whether postconviction counsel was required to satisfy the mandates of Rule 651(c) with respect to pro se filings made after counsel filed an amended petition and Rule 651(c) certificate. Id. ¶ 11. The court found that the new, pro se claims were properly struck and counsel complied with requirements when he did not adopt the new pro se claims. Id. ¶ 15. All that the court stated about amended versus supplemental petitions was that the defendant's subsequently raised issues could not "be said to relate back to his initial pro se petition simply because they were characterized as supplements or amendments to that petition." Id. Bell did not hold that the terms "amended" and "supplemental" are interchangeable and the case is not grounds for undoing the well-established precedent that amended pleadings supersede prior pleadings. Long's postconviction counsel filed an amendment to the pro se petition and apparently decided that the pro se sentencing claims did not have merit. The amended petition superseded the pro se petition.
¶ 39 Moreover, Long's pro se petition did not raise an as-applied challenge based on his youth. Long did not mention his age at all in his pro se petition and made no reference to the mitigating factors of youth. Long filed his pro se petition in 2007, which was five years before Miller was decided. Long's section 2-1401 petition only mentioned the firearm enhancement and did not mention Long's age either.
¶ 40 The amended petition, which superseded the pro se petition, did not include the as-applied sentencing challenge that Long now pursues. Regardless, the pro se petition did not raise an as-applied challenge to Long's sentence based on his youth. The as-applied sentencing claim is forfeited. See 725 ILCS 5/122-3 (West 2016) (any claim of substantial denial of constitutional rights not raised in the original or amended petition is waived); People v. Blair, 215 Ill.2d 427, 444 n.2 (2005) (forfeiture is the failure to make a timely assertion of a right).
¶ 41 C. Unreasonable Assistance
¶ 42 Long asserts in the alternative that his postconviction counsel provided unreasonable assistance. Long argues that his counsel's Rule 651(c) certificate did not certify compliance with the rule's requirements. Thus, this court should consider whether the record explicitly shows that counsel complied with the rule, which counsel did not do. Long contends that his counsel removed a potentially meritorious claim from the petition-the as-applied proportionate penalties claim, based on cases that were decided after Long filed his pro se petition in 2007 but before counsel filed the amended petition in 2016, as well as an explanation of how the Miller factors apply to his case.
¶ 43 Under the Act, petitioners are entitled to a" 'reasonable'" level of assistance of counsel. People v. Profit, 2012 IL App (1st) 101307, ¶ 18. To that end, Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) imposes three duties on appointed postconviction counsel. Id. The record or a certificate filed by the attorney must show that counsel: 1) consulted with the petitioner by phone, mail, electronic means, or in person to ascertain his contentions of deprivation of constitutional rights, 2) examined the record of the proceedings at trial, and 3) "made any amendments to the petitions filed pro se that are necessary for an adequate presentation of [the] petitioner's contentions." Ill. S.Ct. R. 651(c) (eff. Feb, 6, 2013). The purpose of the rule "is to ensure that counsel shapes the petitioner's claims into proper legal form and presents those claims to the court." (Internal quotation marks omitted.) People v. Richardson, 382 Ill.App.3d 248, 253 (2008). Substantial compliance with Rule 651(c) is sufficient. People v. Blanchard, 2015 IL App (1st) 132281, ¶ 15. We review de novo an attorney's compliance with a supreme court rule. Profit, 2012 IL App (1st) 101307, ¶ 17.
¶ 44 The filing of a Rule 651(c) certificate creates a rebuttable presumption that counsel provided reasonable assistance. Id. ¶ 19. The defendant has the burden to overcome that presumption by demonstrating that his attorney failed to substantially comply with the duties mandated by Rule 651(c). Id. A court examines the merits of the pro se allegations that the petitioner claims should have been part of an amended petition. See People v. Gallano, 2019 IL App (1st) 160570 ¶ 30. If no certificate has been filed, "a clear and affirmative showing of compliance on the record must be present." (Internal quotation marks omitted.) People v. Smith, 2016 IL App (4th) 140085, ¶ 33. A court does not consider the merits of the pro se claims where no certificate has been filed. Gallano, 2019 IL App (1st) 160570, ¶ 29.
¶ 45 Long asserts that his counsel's Rule 651 (c) certificate was deficient. Long takes issue with the certificate's statement that counsel "examined Petitioner's pro se Petition for Post-Conviction Relief, and have prepared an amendment thereto." According to Long, the certificate did not indicate that counsel made all necessary amendments, as required by Rule 651(c).
¶ 46 Despite not mirroring the exact language of Rule 651(c), the language here is similar to that used in other certificates that have satisfied the rule. See People v. Landa, 2020 IL App (1st) 170851, ¶¶ 47, 49 (certificate that stated that counsel "presented the petitioner's claims" substantially complied with Rule 651(c)); Richardson, 382 Ill.App.3d at 253, 257 (certificate that stated that counsel prepared a supplemental petition that "adequately complements petitioner's claims of deprivation of his constitutional rights" substantially complied with Rule 651(c)). The certificate here substantially complied with Rule 651(c).
¶ 47 In reaching this conclusion, we find inapposite two cases that Long relies on in which counsel filed a certificate under Illinois Supreme Court Rule 604(d) (eff. Dec. 3, 2015), which applies to appeals from guilty pleas. In People v. Carrizoza, 2018 IL App (3d) 160051, ¶ 18, the Rule 604(d) certificate did not substantially comply with Rule 651(c) because the certificate did not indicate that counsel considered the record outside the plea and sentencing. In People v. Mason, 2016 IL App (4th) 140517, ¶ 24, the Rule 604(d) certificate did not demonstrate that counsel reviewed the transcripts of all trial court proceedings or spoke with the defendant about his contentions of constitutional deprivation outside of the plea and sentencing hearings. The certificates in Carrizoza and Mason left out entire portions of Rule 651 (c), including references to the trial proceedings that were the basis of the defendants' claims. Here, the language of the certificate deviated from Rule 651(c), but does not raise doubts that counsel fulfilled his duties under Rule 651(c). Counsel's certificate substantially complied with Rule 651(c).
¶ 48 Because a certificate was filed, there is a rebuttable presumption that Long received reasonable assistance. People v. Custer, 2019 IL 123339, ¶ 32. Further, postconviction counsel is only required to investigate and properly present the petitioner's claims. Richardson, 382 Ill.App.3d at 254. While counsel may conduct a broader examination of the record and raise additional issues if he chooses, there is no obligation to do so. Id. As discussed above, Long's pro se petition did not raise an as-applied challenge to his sentence based on his youth. Long did not mention his age in any way or explain how the mitigating factors of youth should affect his sentence. But see Savage, 2020 IL App (1st) 173135, ¶ 7 (pro se petition of a 22-year-old defendant that advanced to second-stage proceedings alleged that his sentence violated the proportionate penalties clause and mentioned factors that left him more susceptible to peer pressure and more volatile in emotionally charged settings). Long imposes on his postconviction counsel a duty to allege a new claim, which is outside the scope of Rule 651(c).
¶ 49 Also, an as-applied claim would have been meritless at the time. Long asserts that postconviction counsel should have added citations to Miller, 567 U.S. 460, and People v. House, 2015 IL App (1st) 110580, ¶ 95 (House I), which would have clarified the basis for Long's as-applied proportionate penalties claim and were decided after he filed his pro se petition in 2007 and before counsel filed the amended petition in 2016. Long contends that counsel should have amended the petition to provide relevant facts from the record constituting mitigating factors and provided citations to articles about brain development, as well as ensured his correct age was in the petition, as it was an easily-verifiable fact that was essential to his as-applied proportionate penalties claim.
¶ 50 Counsel did not provide unreasonable assistance by not verifying Long's age. Even assuming Long was 21 at the time of the offense, an as-applied proportionate penalties claim based on Miller and House I would not have succeeded. And, if amendments to a pro se petition would only further a frivolous or patently nonmeritorious claim, they are not "necessary" within the meaning of Rule 651(c). People v. Greer, 212 Ill.2d 192, 205 (2004). Miller and House I, even with the additional mitigating facts that Long mentions, would not have supported an as-applied proportionate penalties claim. Miller, 567 U.S. at 489, held that mandatory life without parole sentences for juveniles-people under 18-violate the eighth amendment. In House I, 2015 IL App (1st) 110580, ¶ 101, vacated, People v. House, No. 122134 (Nov. 28, 2018), a mandatory natural life sentence was found to violate the proportionate penalties clause where the defendant- who was 19 years old at the time of the offense-was "barely a legal adult and still a teenager." Unlike the defendants in Miller and House I, Long was at least 21 years old and received a 45-year sentence. It was not until Buffer, 2019 IL 122327, ¶ 41, that our supreme court held that a sentence over 40 years is a de facto life sentence for a juvenile. Miller and House I would not have provided legal support for an as-applied claim. See Hodges, 234 Ill.2d at 17 (standard for summary dismissal is whether the petition is based on an indisputably meritless legal theory or fanciful factual allegation).
On remand from a supervisory order, House II, 2019 IL App (1st) 110580-B, still found that the defendant's mandatory life sentence violated the proportionate penalties clause.
¶ 51 As stated above, postconviction counsel was not required to add a new claim. Nonetheless, an as-applied proportionate penalties claim would have been meritless and Long's postconviction counsel did not provide unreasonable assistance by not including it. Still, Long is not entirely without recourse. A successive postconviction petition may provide relief, though we express no opinion on the merits of that option.
¶ 52 III. CONCLUSION
¶ 53 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 54 Affirmed.