Opinion
No. 1-18-2402
04-27-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN WARD, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 99 CR 20865 The Honorable Michael P. Toomin and Nicholas R. Ford, Judges Presiding. JUSTICE PUCINSKI delivered the judgment of the court.
Justices Fitzgerald Smith concurred in the judgment.
Justice Lavin dissented. ORDER Held: The trial court erred when it denied the defendant leave to file a successive postconviction petition challenging the constitutionality of his cumulative 45-year sentence for offenses he committed as a 19-year-old. ¶ 1 Defendant Sherman Ward appeals from the trial court's order denying him leave to file a successive petition under the Post-Conviction Hearing Act (Act) (722 ILCS 5/122-1 et seq. (West 2018)). He argues that his claims satisfied the cause and prejudice test applicable to successive petitions. ¶ 2 Specifically, he asserts that his cumulative 45-year sentence for first-degree murder, two counts of attempted murder, two counts of armed robbery and one count of aggravated battery violated the eighth amendment to the United States Constitution (U.S. Const., amend. VIII), as well as the Illinois Constitution's proportionate penalties clause (Ill. Const. 1970, art. I, §11). We reverse the trial court's judgment.
¶ 3 I. BACKGROUND
¶ 4 Briefly stated, the evidence at defendant's jury trial showed that he and his codefendants committed the offenses during the robbery of the Pot O' Gold Liquor Store (8658 S. Ashland) on August 10, 1999. ¶ 5 It is uncontested that defendant did not fire any shots. Codefendants shot Yousef Ali, Naser Naser and Officer Phillip Rider. Ali did not survive. Defendant, then 19 years old, struck victim Walid Awadh on the head with the butt of his firearm. ¶ 6 Since the offense, he has obtained his GED. Additionally, defendant claimed to be under the influence of alcohol and marijuana at the time of the offense and requested drug treatment. Defendant also told the court that he knew what he did was wrong and that had he known how things would turn out, he would not have participated in this crime. He stated, "It was just a mistake. I wasn't thinking." The jury wrote a note asking the court to keep in mind at sentencing that defendant did not shoot anyone. ¶ 7 On September 24, 2018, the trial court sentenced defendant to prison terms of 35 years for Ali's murder, 20 years for the attempted murder of Naser, 25 years for the attempted murder of Officer Rider, 20 years for the armed robbery counts and 5 years for aggravated battery. ¶ 8 At his sentencing hearing the court stated it had looked at the factors in mitigation and aggravation, read the PSI, and considered the nature of the crime. The court added: "And there is the element of deterrence the Court must consider as well. Deterrence obviously which Sherman Ward has shown by his joining in with this group, that he must be removed from society for a considerable number of years. And deterrence for others who may seek to emulate his behaviors and conduct on the street." The judge then entered the cumulative sentence of 45 years. ¶ 9 Defendant claims that because the sentencing court failed to consider his age and attendant characteristics when imposing his 45-year sentence that the sentence is unconstitutional as applied to him. ¶ 10 On direct appeal, we rejected defendant's ineffective assistance of counsel claims. People v. Ward, No. 1-04-2065 (April 20, 2006) (unpublished order under Supreme Court Rule 23). Defendant then filed several petitions for collateral relief before eventually filing a pro se petition for leave to file a successive petition under the Act. ¶ 11 This petition asserts that pursuant to the reasoning of Miller v. Alabama, 567 U.S. 460, 471 (2012)), and its progeny, defendant's cumulative 45-year sentence was unconstitutional under the eighth amendment and the proportionate penalties clause as applied to his case. On September 24, 2018, the trial court entered a written order denying defendant leave to file his successive petition. Defendant now appeals.
¶12 II. ANALYSIS
¶ 13 The Act provides a statutory remedy for claims that substantial violations of a defendant's constitutional rights occurred at trial, but the Act also contemplates the filing of only one petition. People v. Robinson, 2020 IL 123849, ¶ 42. Leave to file a successive petition should only be denied if it is clear that the claims alleged by the petitioner fail as a matter of law or the supporting documentation is insufficient to justify further proceedings. People v. Smith, 2014 IL 11546 ¶ 35. 19. A defendant faces "immense procedural hurdles when bringing a successive postconviction petition." People v. Davis, 2014 IL 115595, ¶ 14. Specifically, a defendant must establish cause and prejudice, which require the following:
"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 postconviction proceedings; and¶ 14 The Illinois Supreme Court has found that the substantive rule established in Miller satisfied cause and prejudice for the purposes of the Act holding: "the rule constitutes 'cause' because it was not available earlier to counsel [citation] and constitutes prejudice because it retroactively applied to [the] defendant's sentencing hearing. Davis, 2014 IL 115595 ¶ 42. ¶ 15 The State does not dispute that defendant has established cause for failing to raise his sentencing challenge in an earlier petition but argues that defendant did not establish prejudice. We disagree. ¶ 16 We review the denial of a defendant's motion for leave to file a successive postconviction petition de novo. People v. Bailey, 2017 IL 121450 ¶ 13.
2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial postconviction proceedings so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122-1(f) West 2018).
¶ 17 A. MILLER AND THE EIGHTH AMENDMENT
¶ 18 We first address defendant's challenge under the eighth amendment. The eighth amendment prohibits "cruel and unusual punishments." People v. Buffer, 2019 IL 122327, ¶ 15 (quoting U.S. Const., amend. VIII). This includes disproportionate punishments. People v. Lusby, 2020 IL 124046, ¶ 32. Additionally, the United States Supreme Court has determined that "children are constitutionally different from adults for purposes of sentencing.'" Id. (quoting Miller v. Alabama, 567 U.S. 460, 471 (2012)). "The age of 18 marks the present line between juveniles and adults." People v. Harris, 2018 IL 121932, ¶ 61; but see People v. House, 2019 IL App (1st) 110580 -B, ¶ 54, appeal allowed, No. 125124, (stating that 18 years of age was not a bright line). ¶ 19 As recognized in Miller, juveniles lack maturity, lack a developed sense of responsibility, engage in impulsive reckless behavior, are particularly vulnerable to negative influences, have limited control over their environment, and lack the ability extricate themselves from settings prone to produce crime. Buffer, 2019 IL 122327, ¶ 16. They possess, however, a greater capability to change. Id. Consequently, their actions are less likely to reflect irretrievable depravity. Id. Given these special attributes, the court has determined that the eighth amendment prohibits capital sentences and mandatory life sentences for juvenile offenders. Id. Even discretionary life sentences require the sentencing court to consider characteristics attendant to youth. Id. To prevail under the eighth amendment, Miller and its progeny, a defendant sentenced for an offense committed as a juvenile must show that (1) he "was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence." Id. ¶ 27. ¶ 20 The categorical findings made by Miller and its progeny under the eighth amendment, however, do not automatically apply. See People v. Handy, 2019 IL App (1st) 170213, ¶ 37. Recently, and forcefully, in Harris our supreme court reaffirmed that the demarcation for juvenile sentencing protections under the eighth amendment is "under age 18." See Harris, 2018 IL 121932, ¶¶ 49-61 (rejecting a facial challenge under the federal eighth amendment to a life sentence for an offender over 18 years old but under 21 years old, and conclusively noting, "the age of 18 marks the present line between juveniles and adults"). Since the petitioner here was 19 years old when he committed his crimes, he cannot avail himself of the eighth amendment. Accordingly, his age-based eighth amendment argument fails as a matter of law. As such, he cannot establish prejudice with respect to this claim.
¶ 21 B. MILLER PROTECTIONS UNDER THE PROPORTIONATE
PENALTIES CLAUSE OF THE ILLINOIS CONSTITUTION
¶ 22 Defendant next asks us to extend Miller to apply to him as an emerging adult under the proportionate penalties clause of the Illinois Constitution. In this respect, defendant asserts that he turned 19 only a few days before committing the instant offense and that he "is now different in his intelligence and [h]is approach to life." In this way, defendant argues, albeit inartfully, that if his successive petition is permitted to proceed he could develop a record that he was more like an adolescent than an adult at the time of the offense and should have been treated as such at sentencing. For the reasons that follow, we agree. ¶ 23 The proportionate penalties clause of the Illinois Constitution states 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. Our supreme court has held that the "limitation on penalties" in this clause "goes beyond the framers' understanding of the eighth amendment and is not synonymous with that provision." People v. Clemons, 2012 IL 107821 ¶ 40. For a petitioner to succeed in a proportionate penalties claim, he must first demonstrate that the penalty is degrading, cruel or "so wholly disproportionate to the offense that it shocks the moral sense of the community." People v. Klepper, 234 Ill. 2d 337, 348-49 (2009). ¶ 24 Defendant correctly points out that our supreme court has twice considered whether Miller protections should apply to defendants who committed offenses after their eighteenth birthday and held that postconviction proceedings are the correct vehicle for emerging adults between the ages of 18 and 21 to raise as-applied challenged to their sentences. See People v. Thompson, 2015 IL 118151, ¶ 39; People v. Harris, 2018 IL 121932, ¶¶ 1, 22; see also People v Minniefield, 2020 IL App (1st) 170541 ¶ 41. ¶ 25 In Thompson, 2015 IL 118151, ¶ 39, a defendant who committed murders at the age of 19 sought an as-applied Miller challenge under the eighth amendment to his mandatory life sentence because he had not asserted that claim in the trial court. The court held that a successive postconviction petition was the correct procedure for him to assert his constitutional claim. ¶ 26 In Harris, 2018 IL 121932, ¶¶ 1, 22, the supreme court faced a direct appeal to his convictions for first degree murder by a defendant who was 18 years and 3 months old at the time of the offenses. He argued that the sentence of 76 years violated the proportionate penalties clause and the eighth amendment as applied to him. The court held that since he had not raised his as-applied challenge in the trial court the "record [t]here d[id] not contain evidence about how the evolving science of juvenile maturity and brain development that helps for the basis for the Miller decision applie[d] to defendant's specific facts and circumstances," Id. ¶ 46, and that therefore his proportionate penalties challenge was premature and his claim more appropriate as a postconviction petition. Id. ¶¶ 49-61. As Harris explained, a reviewing court "is not capable of making an as-applied finding of unconstitutionality in the 'factual vacuum' created by the absence of an evidentiary hearing and findings of fact by the trial court." Harris, 2018 IL 121932, ¶ 43. ¶ 27 Since the supreme court decided Thompson and Harris, a split has developed in our appellate courts about how to handle as-applied proportionate penalties challenges to sentences imposed on emerging adult homicide defendants when presented in the context of successive postconviction petitions. ¶ 28 Some of our appellate courts have held that the circumstances of the individual defendant and the crime should determine the result in successive postconviction petitions. Those cases have considered whether (1) the offender was an active participant in the offense; (2) if the sentence was discretionary or mandatory; (3) if the sentencing judge considered his or her youth and rehabilitative potential; (4) whether the successive postconviction petition alleged or failed to allege facts demonstrating how individual characteristics showed how the petitioner's brain was more like a juvenile's than an adult's. See, e.g., People v. Carrion, 2020 IL App (1st) 17001, ¶¶ 30-33; People v. Gomez, 2020 Il App (1st) 173016, ¶¶ 37-38; People v. McClurkin, 2020 IL App (1st) 171274, ¶¶ 20-23; 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; People v. Ramsey, 2019 IL App (3rd) 160759, ¶¶ 22-23. 24. ¶ 29 Other courts have held that successive postconviction petitions by emerging adults under the proportionate penalties clause should be allowed, regardless of whether the offender was an active participant or not, and regardless of whether the sentence was discretionary or mandatory. 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. These decisions found that it was premature to dismiss proportionate penalties challenges before the petitioners could fully develop the record necessary to support their claims. The "defendant has shown prejudice by establishing a catch-22 - without a developed record he cannot show his constitutional claim has merit, and without a meritorious claim he cannot proceed to develop a record." Minniefield, at ¶ 44, (quoting Carrasquillo, at ¶ 109). ¶ 30 We agree with the latter line of cases. The record here is insufficient to determine if the court fully considered defendant's youth and attendant characteristics (See, Savage, 2020 IL App (1st) 173135 ¶ 57. We note the court did not specifically find that defendant was "permanently incorrigible" or "irretrievably depraved." See Holman 2017 IL 120655 ¶¶ 42-47. The PSI did not consider his immaturity or ability to assess risks and consequences nor did the Court. As such, the defendant here should be permitted to develop a record to show that: (1) the well-respected trial judge presiding over his sentencing hearing did not take into consideration the Miller factors, since those factors were not available to him as part of our jurisprudence when he was sentenced; (2) his sentence is a de facto life sentence; and (3) he was an emerging adult when the crime was committed and as such more like an adolescent than an adult. We therefore hold that the trial court erred in denying the petitioner leave to file his successive postconviction petition with respect to his proportionate penalties claim. ¶ 31 In so holding, we are mindful that recent research on brain development in young adults, has overwhelmingly found that emerging adults are_"more similar to adolescents than fully mature adults ***, more susceptive to peer pressure, less future-oriented and more volatile in emotionally charged settings." Vincent Schiraldi & Bruce Westerns, Why 21 Year Old Offenders Should be Tried in Family Court, Wash. Post (Oct. 2, 2015, https://www.washingtonpost.com/opinions/time-to-raise-the-juvenile-age-limit/2015/10/02/948e317c-6862-11e5-9ef3-fde1882507eac_storyhtml. [https://perma.cc/FV36-XURC]. ¶ 32 " In some respects, young adults behave and appear like older adults; in others, they look more like adolescents. For example, like adolescents, young adults are more likely to engage in risk-taking behavior (including illegal activity) and act more impulsively than older adults, particularly in stressful or exciting situations. " A Guide to Community Strategies for Improving Emerging Adults' Safety and Well-being, Leah Sakala, et. al., Urban Institute, Justice Policy Center, March ,2020, p. 3, https://www.urban.org/sites/default/files/publication/101838/a20guide20to20community20strategies20for20improving20emerging20adults2720safety20an_0.pdf. ¶ 33 " By the time a young person finishes high school, they are probably as tall as they will get. They have likely grown physically to their potential, yet mental growth and cognition is still developing." Emerging Adulthood, https://www.psychiatrynyc.com, p. 7. ¶ 34 A U.S. Department of Health and Human Services article states that the human brain "continues to mature well into the 20's" (see; Sarah B. Johnson, Robert W. Blum and Jay N. Gledd, Adolescent Maturity and the Brain: the Promise and Pitfalls of Neuroscience Research in Adolescent Health Policy, J. Adoles. Health, 2009, Sep. 45 (3): 216-221, https://www.ncbi.nlm,nih.gov/pmc/articles/PMC 2892678). ¶ 35 Another article from the Juvenile Justice Initiative notes that recent research has shown that people from 18 to 24 years old "are not yet fully mature adults. The young adult brain is still developing and young adults are in transition from adolescence to adulthood. Further, the ongoing development of their brains means they have a thigh capacity for reform and rehabilitation. Young adults are, neurologically and developmentally, closer to adolescents than they are to adults." See, Kanako Ishida, Young Adults in Conflict with the Law: Opportunities for Diversion, Dialogue, Education and Advocacy, February, 2015, https://jjustice.org/wp-content/uploads/young-adults-in-conflict-with-the-law-opportunities-for-diversion.pdf [https://perma.cc/69CY-SGF9]. ¶ 36 Similarly, a study from Columbia University observed "there is mounting scientific evidence that youth ages 18-24 are developmentally distinct from older adults and should be treated as such by the justice system ***Research shows that there is no magic birthday that transforms a youth into an adult and the transition period is longer than previously understood." Selen Siringil Perker, Lael H. Chester and Vincent Schiraldi, Emerging Adult Justice in Illinois: Toward an Age-Appropriate Approach, Columbia University Justice Lab, Jan 24, 2019, at 2, https://jjusticelab.columbia.edu/Emerging-Adult-Justice-in-Illinois#/:~:text =Emerging%20Adult%20Justice%20in%2025. For instance, "it is not until a person's early 20's or later that certain developments occur in the prefrontal cortex, which coordinates a set of supervisory cognitive skills needed for goal-directed behavior, including planning, response inhibition, working memory and attention." Sara B. Johnson, Pd.D., M.P.H., et. al., Adolescent Maturity and the Brain: The Promise and Pitfalls of Neuroscience in Adolescent Health Policy, 45 (3) J. Adolesc. Health, 216-21 (2009 https://www.ncbi.nlm.hih.gov/pmx/articles/PMC2892678. ¶37 Moreover, as a recent study in Michigan shows that the life expectancy for adults incarcerated for natural life is 58.1 years but for juveniles only 50.6 years. Deborah LaBelle, Michigan Life Expectancy Data for Youth Serving Natural Life Sentences, http://www .167.uscourts.gov/documents/17-12441pdf. ¶ 38 The research that concludes that emerging adult defendants are more like juveniles than adults and are, therefore, less developed points to the conclusion that emerging adults, in general, will outgrow their juvenile tendencies, which in turn provides hope that they can be rehabilitated. That is the main premise of Miller: that juvenile defendants must be given the opportunity to show that they are ready for parole. This fits closely with Illinois' long history of preferring rehabilitation, going back to 1869 when the Commissioners of the Penitentiary were directed to provide "a diminution of sentence if no infractions of the discipline covered with reductions in sentence for good conduct. (1869 Ill Laws 81 § 2) The preference for rehabilitation continues to today where the Code of Corrections defines the responsibility of the Department of Corrections as "to accept persons committed to it by the courts of the state for the care, custody, treatment and rehabilitation. 730 ILCS 5/3-2-2(1)(a) West 2016. ¶ 39 It is not surprising then that in recognition of this recent research, the law in Illinois has continued to trend in the direction of increased protections for youthful offenders, such as defendant. ¶ 40 Recent legislative developments point to the recognition that individuals between the ages of 18 and 21 are considered minors. ¶ 41 The Juvenile Court Act of 1987 defines a minor as "a person under the age of 21." 705 ILCS 405/1-3 (10) (West 2018). ¶ 42 In Illinois persons under age 21 can are eligible for certain benefits, including receiving a "station adjustment" following arrest, a probation adjustment, or eligibility for community mediation programs. 705 ILCS 405/5-301, 5-305, 3-5-310 (West 2018). ¶ 43 Illinois treats individuals under the age of 21 differently than adults in other ways, for example, prohibiting sales to them of alcohol (235 ILCS 5/6-16(a)(I) (West 2018, cigarettes (720 ILCS 675/1) and wagering tickets (230 ILCS 10/18 (b)(I) (wet 2018), requiring parental permission to legally own a firearm (430 ILCS 65/4(a)(2)(1) West 2018), and limiting Class X sentencing for recidivist offenders to those offenders "over the age of 21 years." 730 ILCS 5/5-4.5-95(b) (West 2018). ¶ 44 Added to the complication in emerging adult sentencing cases is Illinois Public Act 101-288, which provides, in part, that parole review is available after serving twenty years of a longer sentence for homicide defendants who were under the age of 21 at the time of the offense and sentenced on or after June 1, 2019. 730 ILCS 5/5-4.5-115(b). This legislation reflects a growing appreciation in Illinois that our informed treatment of emerging adults in the criminal justice system includes those between eighteen and twenty-one years of age. ¶ 45 The legislation does not, however, provide the same relief to homicide defendants who were under the age of 21 at the time of the offense but were sentenced before June 1, 2019, as is the case here. ¶ 46 While we acknowledge that the victims and the families of victims in these horrible crimes must see that our system of justice works for them, we also acknowledge that there is no reason to believe the Prisoner Review Board will be anything but diligent in determining which offenders have met the guidelines for parole and which have not.
We note that both of the justices in the majority concurred in People v. Carrion which denied a 19-year-old homicide defendant leave to file a successive postconviction petition. Carrion is distinguishable because we found that there, the sentencing judge did take into consideration the Miller factors. Here we can make no such finding without further development of the record.
¶ 47 C. CONCLUSION
¶ 48 For these reasons the decision of the circuit court to deny defendant's petition for successive postconviction petition is reversed and this matter is remanded to the circuit court. ¶ 49 Reversed and remanded. ¶ 50 Justice Lavin dissented. ¶ 51 I respectfully disagree with the majority's determination that the trial court erred by denying defendant leave to file a successive petition under the Act. Specifically, defendant cannot demonstrate that his sentence violates the proportionate penalties clause. ¶ 52 Given the nature of this crime, defendant's cumulative 45-year sentence does not shock the moral sense of the community. Three men were shot, including one who died, all for financial gain. Defendant himself pointed his firearm at a fourth person, Awadh, and twice hit him on the head in furtherance of this robbery. Additionally, defendant's active participation in the offense, as well as his petition's omission of any allegations as to why he personally is akin to a juvenile, renders it inappropriate to extend Miller's eighth amendment procedures to defendant's proportionate penalties claim. Compare Handy, 2019 IL App (1st) 170213, ¶ 40 (declining to extend Miller principles to a young adult under the proportionate penalties clause where he actively participated by invading a victim's house, holding a gun to a victim's head, and participating in gang rape); with House, 2019 IL App (1st) 110580-B, ¶ 46 (extending Miller principles to a young adult under the proportionate penalties clause where the defendant was merely a lookout and was not present at the murder scene). ¶ 53 Moreover, this was not a gang-related crime involving inherent peer pressure. There is no suggestion that defendant was forced to participate in the armed robbery. Additionally, defendant described his childhood as "fair" and free from abuse. Defendant also reported in the PSI that his mental health was good. As the trial court observed, his social and family background was free of significant problems that would have explained his participation in this antisocial behavior. ¶54 The trial court stated that the jury's findings "resulted in a very serious case," and that defendant needed to be removed from society, notwithstanding that the jury asked the court to consider that defendant did not shoot anyone. In addition, the court found that defendant had a criminal history and that he and his companions planned an armed robbery that resulted in mayhem. While the influence of drugs and alcohol, defendant's remorse and defendant's subsequent success in obtaining a GED certainly factor in his favor, it does not follow that they so heavily outweigh other relevant factors so as to render his sentence unconstitutional. I would affirm the trial court's judgment.