Opinion
1-20-0213
11-09-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. DARIUS WILLIAMS, Petitioner-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. 09 CR 1765001, Honorable Ramon Ocasio III, Judge Presiding.
FITZGERALD SMITH PRESIDING JUSTICE delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.
ORDER
FITZGERALD SMITH PRESIDING JUSTICE.
¶ 1 Held: The circuit court properly denied the petitioner's motion for leave to file his third successive postconviction petition, alleging that the Truth in Sentencing Act (730 ILCS 5/3-6-3 (West 2006) was unconstitutional as applied to him under the Illinois proportionate penalties clause (Ill. Const. 1970, art I, § 11). The petitioner failed to establish the requisite prejudice stemming from his failure to raise this claim earlier.
¶ 2 The petitioner, Darius Williams, appeals from the circuit court's denial of his pro se request for leave to file a third successive postconviction petition pursuant to the Postconviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, the petitioner contends that he sufficiently established cause and prejudice to proceed with his as-applied proportionate penalties (Ill. Const. 1970, art I, § 11) challenge to the constitutionality of the Truth in Sentencing Act (730 ILCS 5/3-6-3 (West 2006)). For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 Because the record before us is voluminous we set forth only those facts and procedural history relevant to the resolution of the issues raised in this appeal. In September 2009, the 17-year-old, petitioner was charged with, inter alia, attempted first degree murder and aggravated battery with a firearm for his involvement in the August 31, 2009, shooting of the victim Zachary Sanders. The petitioner proceeded to a bench trial, which was held simultaneously with the jury trial of codefendant Antoine Brantley. The evidence presented at trial established that upon a command from codefendant Brantley, and in response to an argument Brantley had with Sanders earlier in the day, the petitioner stepped out of Brantley's car and shot Sanders on his porch. The petitioner was found guilty of attempted murder and aggravated battery with a firearm.
¶ 5 The petitioner was subsequently sentenced to the minimum prison term of 31 years, which included the minimum 6-year sentence for attempted murder and the mandatory 25-year firearm enhancement for the petitioner's personal discharge of the firearm. In imposing the sentence, the circuit court stated that it was "appalled" by the fact that the petitioner did not know the victim, but that he nonetheless shot him because someone ordered him to do so. As the court stated: "For the protection of the public, we just can't have people firing shots willy-nilly at other people, especially ones where they don't even know the person, because someone told them to go off and do it."
¶ 6 After the petitioner appealed, the State Appellate Defender assigned to represent him on appeal filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). This court granted the State Appellate Defender's motion and affirmed the petitioner's conviction and sentence. See People v. Williams, 2012 IL App (1st) 111775-U (Williams I), petition for leave to appeal denied, 39 N.E. 3d 567 (2013).
¶ 7 On May 2, 2014, the petitioner filed his first pro se postconviction petition arguing that the mandatory 25-year firearm enhancement, which had increased his minimum 6-year sentence to 31 years imprisonment, had not been proven beyond a reasonable doubt. On July 18, 2014, the circuit court summarily dismissed the pro se petition. On appeal, the State Appellate Defender assigned to represent the petitioner filed a motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), concluding that no issues of merit existed warranting argument on appeal. On July 19, 2016, we granted the State Appellate Defender's motion and affirmed the circuit court's summary dismissal of the pro se petition. See People v. Williams, 2016 IL App (1st) 150020-U (Williams II).
¶ 8 On February 3, 2015, the petitioner filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)), arguing that his sentence was void because he was never admonished that he would have to serve three years of mandatory supervised release (MSR) at the conclusion of his incarceration. The petition was denied on March 13, 2015.
¶ 9 On August 1, 2016, the petitioner filed a second pro se section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2014)). Therein he asserted that his sentence was unconstitutional under the Illinois proportionate penalties clause (Ill. Const. 1970, art I, § 11) because the offense of attempted murder combined with the 25-year firearm enhancement for the personal discharge of a weapon was greater than the sentences for: (1) armed violence predicated on attempted murder and (2) second-degree murder. The circuit court denied the petition on October 28, 2016.
¶ 10 On October 20, 2016, the petitioner filed a pro se petition for leave to file his first successive postconviction petition pursuant to the Postconviction Hearing Act (725 ILCS 5/122-1(f) (West 2016)). Therein, he argued that the firearm sentencing enhancement was vague and unconstitutional as applied to him under the proportionate penalties clause (Ill. Const. 1970, art I, § 11). The petitioner further asserted that the sentence imposed violated his due process rights and the separation of powers doctrine. The circuit court denied the petitioner's request for leave to file his successive petition on October 28, 2016.
¶ 11 On July 31, 2017, the petitioner filed his third pro se section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2016)), making the same argument regarding the unconstitutionality of his sentence under the proportionate penalties clause, which he had made in his second section 2-1401 petition. The circuit court denied the petition on September 15, 2017.
¶ 12 On January 2, 2018, the petitioner filed a pro se petition for leave to file his second successive postconviction petition (735 ILCS 5/122-1 (f) (West 2018)) arguing that the provision under which he was sentenced violated the single subject rule. On April 26, 2018, the circuit court denied him leave to file his petition, finding that he had failed to establish the requisite cause and prejudice.
¶ 13 On June 21, 2019, the petitioner filed the instant pro se petition for leave to file his third successive postconviction petition (735 ILCS 5/122-1 (West 2018)). Therein he argued, inter alia, that the Truth in Sentencing Act (730 ILCS 5/3-6-3 (West 2006)) was unconstitutional as applied to him. The petitioner asserted "cause" for his failure to raise this issue earlier by citing to the decision of this appellate court in People v. Othman, 2019 IL App (1st) 150823, which was published five years after the petitioner's initial postconviction proceedings, and which found that the Act was unconstitutional under the proportionate penalties clause as applied to a similarly situated juvenile offender. The petitioner asserted "prejudice" resulting from his failure to bring this claim earlier by arguing that the Act, as it applied to his sentence violated "due process" because it did not permit him, a juvenile offender, to demonstrate his rehabilitative potential or be paroled but rather required him to serve 85% of his sentence. In support, the petitioner further argued that under the new sentencing scheme for juveniles adopted by our legislature, a sentencing judge is required to consider a juvenile's rehabilitative potential and is given discretion in deciding whether or not to impose a firearm enhancement. See 730 ILCS 5/5-4.5-105 (West 2018)). The petitioner therefore contended that his sentence was "disproportionate" "as applied" to him because it required him to serve 85% of a term, the majority of which resulted from a 25-year mandatory sentencing enhancement that would likely not have been imposed today.
¶ 14 On December 18, 2019, the circuit court denied the petitioner's request for leave to file his third successive postconviction petition. On February 5, 2020, we granted the petitioner's motion for leave to file a late notice of appeal.
¶ 15 III. ANALYSIS
¶ 16 On appeal, the petitioner contends that the circuit court erred in denying him leave to file his third successive postconviction petition. For the following reasons, we disagree.
¶ 17 At the outset we note that the Postconviction Hearing Act (725 ILCS 5/122-et seq. (West 2018)) provides a statutory remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred either at trial or at sentencing. People v. Edwards, 2012 IL 111711, ¶ 21. The Act is not a substitute for an appeal, but rather, a collateral attack on a final judgment. Id. Accordingly, issues not presented in an original or amended petition will be deemed waived, and issues that have previously been raised and addressed on appeal will be barred pursuant to the doctrine of res judicata. Id.; see also People v. Sanders, 2016 IL 118123, ¶ 24 (citing 725 ILCS 5/122-3 (West 2014)).
¶ 18 Our supreme court has repeatedly held that the Act contemplates the filing of only one petition without leave of court (725 ILCS 5/122-1(f) (West 2016)); see also People v. Lusby, 2020 IL 124046, ¶ 27. To obtain such leave, the petitioner must demonstrate cause of failure to raise the claim in his initial postconviction proceeding and prejudice resulting therefrom. Lusby, 2020 IL 124046, ¶ 27; Edwards, 2012 IL 111711, ¶ 23. A petitioner 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." 725 ILCS 5/122-1(f) (West 2016). A petitioner shows prejudice "by demonstrating that the claim not raised during his or her initial postconviction proceeding so infected the trial that the resulting conviction or sentenced violated due process." Id.
¶ 19 Leave to file a successive petition will be granted "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." People v. Smith, 2014 IL 115946, ¶ 35. At this stage, all well-pleaded allegations in the petition and the supporting affidavits that are not positively rebutted by the trial record must be taken as true. Id. ¶ 45. Therefore, in deciding the legal sufficiency of a postconviction petition, the court is precluded from making any factual and credibility determinations. Id. Our review of the trial court's denial of a motion for leave to file a successive postconviction petition is de novo. See People v. Bailey, 2017 IL 121450, ¶ 13.
¶ 20 On appeal, the petitioner contends that he sufficiently stated cause and prejudice to proceed with his as-applied proportionate penalties challenge to the Truth in Sentencing Act (730 ILCS 5/3-6-3 (West 2006)). Specifically, the petitioner contends that the Act, which requires him to serve 85% of his sentence without the possibility of parole violates the proportionate penalties clause as it applies to him because it does not permit him to demonstrate his rehabilitative potential and be released before 85% of that term expires.
¶ 21 The State initially responds that the petitioner is procedurally barred from raising this issue on appeal. The State's argument is two-fold. First, the State argues that the issue is forfeited because the petitioner did not use the words "proportionate penalties" in his motion for leave to file his third successive postconviction petition. Alternatively, the State argues that even if the petitioner's pleading can be read to have properly raised an as-applied proportionate penalties challenge to the Truth in Sentencing Act, the issue is nevertheless barred by the doctrine of res judicata because the petitioner previously made three proportionate penalties challenges to his sentence all of which were rejected by the circuit court. For the following reasons, we disagree.
¶ 22 Addressing the State's forfeiture argument, we begin by noting that generally if an issue is not raised in a petition or pleading presented to the circuit court, it may not be raised on appeal. See 725 ILCS 5/122-3 (West 2018). However our courts have repeatedly recognized that," [b] ecause a pro se petitioner will likely be unaware of the precise legal basis for his claim the threshold for survival is low, and a pro se petitioner need only allege enough facts to make out a claim that is arguably constitutional for purposes of invoking the Act." People v. Thomas, 2014 IL App (2d) 12001, ¶ 48; see also People v. Mars, 2012 IL App (2d) 110695, ¶ 32. Accordingly," [p] etitions filed pro se must be given a liberal construction and are to be viewed with a lenient eye, allowing borderline cases to proceed." Thomas, 2014 IL App (2d) 12001, ¶ 48
¶ 23 In the present case, contrary to the State's position, and liberally construing the petitioner's allegations in his motion for leave to file his successive postconviction petition, we find that the pleading set forth enough facts to make out a constitutional claim under the Illinois proportionate penalties clause. The petitioner's pleadings clearly alleged that the Truth in Sentencing Act was unconstitutional "as applied" to him because it did not permit him to establish his rehabilitative potential but instead required him to serve 85% of his sentence. Moreover, in establishing cause for failing to raise this issue earlier, the petitioner cited to the decision in Othman, which explicitly found that the truth in sentencing statute was unconstitutional as applied to a similarly situated juvenile offender under the Illinois proportionate penalties clause. The petitioner then argued, albeit inartfully, that the application of the Act to his sentence similarly resulted in a sentence that was "disproportionate." Keeping in mind that the pro se petitioner was likely unaware of the precise legal basis for his claim, we conclude that the aforementioned allegations were sufficient to state an as-applied proportionate penalties challenge to the Act. See Thomas, 2014 IL App (2d) 121001, ¶ 87 ("the assertions in the petition need bear only 'some relationship' to the arguments raised on appeal") (quoting Mars, 2012 IL App (2d) 110695, ¶ 32). Accordingly, we find that the issue is not forfeited for purposes of this appeal. Thomas, 2014 IL App (2d) 121001, ¶ 87 (noting that the defendant's petition and the postconviction appellate arguments related to the same underlying issue so that the arguments in the defendant's appeal were not forfeited).
¶ 24 Turning to the State's second procedural argument, we note that while it is true that the petitioner raised proportionate penalties' challenges to his sentence in both his pro se motion for leave to file his first successive postconviction petition and two subsequent section 2-1401 petitions for relief from judgment, none of these proportionate penalties' challenges attacked the constitutionality of the Truth in Sentencing Act as it applied to the petitioner's sentence. Accordingly, the issues previously raised were not the same as the issue the petitioner raises now and the doctrine of res judicata does not apply.
¶ 25 Having disposed of the State's two procedural arguments, we next turn to the merits of the petitioner's appeal.
¶ 26 On appeal, the petitioner argues that the circuit court erred in denying him leave to file his third successive postconviction petition because he sufficiently stated the requisite cause and prejudice with respect to his as-applied constitutional challenge to the Truth in Sentencing Act. The petitioner contends that he established "cause" for not raising his claim earlier because the decision in Othman, 2019 IL App (1st) 150823, which was the first to ever hold that the Truth in Sentencing Act was unconstitutional as applied to a similarly situated juvenile offender under the proportionate penalties clause, was not decided until 2019. In addition, the petitioner argues that there was prejudice resulting from his inability to raise this claim earlier as it directly affected his sentence, which must be served at 85% regardless of his rehabilitative potential. For the following reasons, we disagree.
¶ 27 It is true that because Othman was decided five years after the petitioner filed his original postconviction petition and over two years after he unsuccessfully attempted to file his first and second successive petitions, any constitutional claim premised on that decision alone could not have been raised in any earlier proceedings. Nonetheless, as shall be demonstrated below, the petitioner cannot establish prejudice resulting from the failure to raise that claim earlier as the claim has no merit.
¶ 28 As already noted above, a petitioner shows prejudice by establishing that the failure to raise his claim earlier "so infected the trial that the resulting conviction or sentence violates due process." 725 ILCS 5/122-1(f) (West 2018).
¶ 29 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. A sentence 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. Miller, 202 Ill.2d 328, 338 (2002); see also People v. Klepper, 234 Ill.2d 337, 348 (2009). Our supreme court has never defined what constitutes a cruel or degrading sentence that is" 'wholly disproportioned to the offense'" because "as our society evolves, so too do our concepts of elemental decency and fairness which shape the 'moral sense' of our community." Id. at 339. To determine whether a sentence shocks the moral sense of our community, a reviewing court considers the objective facts of the case in light of "the community's changing standard of moral decency." People v. Hernandez, 382 Ill.App.3d 726, 727 (2008).
¶ 30 On appeal, the petitioner contends that the Truth in Sentencing Act (730 ILCS 5/3-6-3 (West 2006)), as it applies to him shocks the moral sense of our community because it requires him to serve 85% of his 31-year term without any possibility of parole, even though he committed the crime when he was only a juvenile. The petitioner acknowledges that in People v. Pacheco, 2013 IL App (4th) 110409, ¶ 60, we rejected an identical claim to the one he raises here, finding that the truth-in-sentencing law was not unconstitutional as applied to a similarly situated juvenile offender under the proportionate penalties clause. He nonetheless argues that because the proportionate penalties clause embodies our society's evolving standards of decency (see People v. Minniefield, 2020 IL App (1st) 170541, ¶ 35), the recent developments in our juvenile sentencing laws require us to reconsider the holding in that case.
¶ 31 For the following reasons, we reject the petitioner's argument and find that neither Othman, 2019 IL App (1st) 150823, nor the new legislative enactments upon which he relies support his proportionate penalties challenge to the Truth in Sentencing Act.
¶ 32 With respect to Othman, we first note, and the petitioner concedes, that our supreme court has since entered a supervisory order vacating the portions of Othman regarding truth in sentencing and that therefore Othman has no precedential authority. See People v. Othman, 2020 IL App (1st) 150823-B ¶¶ 3-5 (Othman II); see also Mohanty v. St. John Heart Clinic, S.C., 225 Ill.2d 52, 66 (2006) (stating that an appellate decision vacated by the supreme court "carries no precedential weight). The petitioner nonetheless asserts that the court's reasoning in Othman was sound and that we should apply it here. We disagree.
¶ 33 The Othman court's holding that the Truth in Sentencing Act was unconstitutional as applied to juvenile offenders was based upon its assertion that "every major case on the issue of juvenile justice strongly condemns sentencing policies that prevent a juvenile from seeking to demonstrate rehabilitation and parole at some point during his prison sentence." Othman, 2019 IL App (1st) 150823, ¶ 92. As an example, the Othman court quoted Graham v. Florida, 560 U.S. 48 (2010), for the proposition that" 'the State must *** give [juvenile offenders] some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. *** The Eighth Amendment *** does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.'" Id. ¶ 107 (quoting Graham, 560 U.S. at 75). Based upon this and related precedent, the Othman court concluded the Truth in Sentencing Act "preclude[d] [the defendant] from any possibility of early release" and was therefore unconstitutional as applied to the defendant and to similarly situated juvenile defendants because, under that statute, "those juvenile defendants cannot, under any circumstance, demonstrate their potential for rehabilitation at any time prior to the completion of their sentence." Id. ¶ 109.
¶ 34 A month after Othman was decided, however, our supreme court held that "a prison sentence of 40 years or less imposed on a juvenile offender provides some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation," as required under Graham and its progeny. (Internal quotation marks omitted.) People v. Buffer, 2019 IL 122327, ¶ 41.
¶ 35 This principle was subsequently reaffirmed in People v. Dorsey, 2021 IL 123010, which held that day-for-day good conduct credit may be considered in determining whether a sentence of over 40 years is constitutional. In doing so, our supreme court reiterated that the relevant sentencing scheme need only provide the juvenile "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation before [the juvenile] spends more than 40 years in prison." Id. ¶ 64.
¶ 36 After the petitioner filed his appellate brief in this case, relying on Dorsey, this appellate court rejected a similar as-applied challenge to the Truth in Sentencing Act raised here by the petitioner. See People v. Brakes, 2021 IL App (1st) 181737, ¶¶ 39-44. In Brakes we held that Dorsey "effectively overrule[d]" Othman. Id. ¶ 42. As we explained:
"Dorsey shifts the focus of the inquiry from the sentence imposed to the actual time a defendant must serve. See Dorsey 2021 IL 12310, ¶ 64 (requiring possibility of release before juvenile defendant surpasses 40 years in prison). In other words, a juvenile defendant's sentence (whether served at 100%, 85%, or 50%) may be subject to a constitutional challenge only if it will keep the juvenile in prison for more than 40 years. Id. (relying on Buffer, 2019 IL 122327)." Id.
¶ 37 We agree with the rationale of Bradley and find that the concerns expressed in Othman regarding truth-in-sentencing are inapplicable to the petitioner because he was sentenced to only 31 years imprisonment. Pursuant to Buffer and Dorsey, the petitioner's sentence does not deny him the opportunity to demonstrate his potential for rehabilitation.
¶ 38 We are similarly not persuaded by the petitioner's argument that recent legislative changes in juvenile sentencing indicate that the application of the Truth in Sentencing Act in his case shocks the moral sense of our community. For example, the petitioner notes that our legislature recently changed the law to make a person convicted of first-degree murder eligible for parole after serving only 20 years, if he was under 21 years old at the time of the commission of the offense. Pub. Act 100-1182 (eff. June 1, 2019) (adding 730 ILCS 5/5-4.5-110); Pub. Act 101-288, § 5 (eff. Jan. 1, 2020) (amending 730 ILCS 5/5-4.5-110(b) and renumbering as 730 ILCS 5/5-4.5-115(b)). However, in making this argument, the petitioner ignores the fact that this new statutory provision did not alter the application of truth in sentencing. Nor did the legislature determine that the new statutory change should somehow affect the petitioner's sentence, which was imposed over 10 years ago. Indeed, section 5-4.4-115(b) clearly states that it only applies to juvenile offenders sentenced "on or after June 1, 2019." Id. Therefore, we cannot agree that this new legislative enactment supports the petitioner's broad argument that requiring him to serve 85% of his 31-year sentence for attempted first degree murder, shocks the morals sense of our community.
¶ 39 Accordingly, we find that as applied to the petitioner, the Truth in Sentencing Act (730 ILCS 5/3-6-3 (West 2006)) does not violate the proportionate penalties clause (Ill. Const. 1970, art I, § 11). Accordingly, the petitioner's claim fails as a matter of law, and the denial of his motion for leave to file his third successive postconviction petition was proper.
¶ 40 III. CONCLUSION
¶ 41 For the aforementioned reasons, we affirm the judgment of the circuit court.
¶ 42 Affirmed.