The appellant in People v. Allen, 2020 IL App (3d) 180317, appealed the decision of the trial court dismissing Allen’s petition for relief from judgment, arguing on appeal that the circuit court denied him his right to due process by granting the State’s motion to dismiss without notifying or giving Allen an opportunity to respond. The Third District ultimately vacated the circuit court’s order granting the State’s motion to dismiss and remanded for further proceedings.

John Allen Jr. was convicted of two counts of aggravated battery and sentenced to two concurrent terms of 22 years imprisonment. Id. at ¶ 3. On direct appeal, Allen’s convictions and sentences were affirmed, but the court remanded the case to conduct an inquiry into defendant’s claims of ineffective assistance of counsel. Id. at ¶ 3. Allen filed a petition for relief from judgment pursuant to section 2-1401 while his direct appeal was pending. Id. at ¶ 4. In response, the State filed a motion to dismiss the petition on March 16, 2018. On March 27, 2018, the court granted that motion without a hearing. Id. at ¶ 4.

On appeal, Allen argued that the trial court violated his right to due process by granting the State’s motion to dismiss without providing him an opportunity to respond. Id. at ¶ 6. The State agreed that Allen’s petition was dismissed prematurely and without reasonable opportunity to respond, but maintained that the court’s error was harmless because defendant’s petition was meritless. Id. at ¶ 7. The defendant then argued that harmless error analysis was not applicable to the court’s error, even where his petition was meritless. Id. at ¶ 7.

Ultimately, the Third District Appellate Court sided with Allen. The Court determined that the circuit court’s error of granting the State’s motion to dismiss without providing adequate notice and opportunity to respond was a violation of the appellant’s due process. Id. at ¶ 9. The Appellate Court reached this conclusion because the core principle of due process was denied, which overrode any concern as to the merits of the petition. Id. at ¶ 10, 15. As such, the judgment from the Peoria County circuit court was vacated and remanded for further proceedings. Id. at ¶ 17.

The appellant in People v. House, 2020 IL App (3d) 170655, appealed the decision of the trial court dismissing his post-conviction petition at the second stage of post-conviction proceedings, arguing on appeal that the circuit court erred by denying the petition because House had made a substantial showing of actual innocence. The Appellate Court of Illinois Third District ultimately reversed the decision of the Circuit Court of Peoria County and remanded for further proceedings.

Jumar House was charged with and convicted of attempted first-degree murder, aggravated battery with a firearm, and unlawful possession of a weapon by a felon. Id. at ¶ 3. At the bench trial, evidence was introduced showing three men standing near the vehicle where the shooting occurred, being chased by another man in a black coat and black hat. Id. at ¶ 7. Video evidence showed the man in the coat and hat discharging a firearm in the direction of the three men being chased. One of the three men seen in the video, Nicholas Pannell, testified that he and House had known one another and had exchanged unpleasant words prior to the shooting. A few days after the shooting, Pannell identified House from a photographic lineup. Id. at ¶ 8. Testimony by Detective Timothy Moore established that Pannell had initially lied about his presence at the scene of the shooting, stating he was not in the area when it had occurred. However, upon introduction of the surveillance footage of the shooting, Pannell then admitted to being present and identified House as the shooter. Testimony also established that Pannell was awaiting sentencing in an unlawful possession of a weapon by a felon case of his own. Id. at ¶ 9-10.

On the day of the shooting, House was arrested for DUI by Officer Scott Hulse. No weapons were found in his vehicle, yet Officer Hulse did testify that he was dressed in a black jacket and black hat at the time of arrest. Id. at ¶ 11. The victim in the shooting, Gates, testified that he did not see who shot him, as he was running from the scene and had not even realized that he’d been shot until returning home and removing his coat. Gates also acknowledged a prior felony conviction for unlawful possession of a firearm by a felon. Id. at ¶ 12. House did not testify at trial. House was convicted on all three charges and sentenced to 33 years’ imprisonment for attempted murder and a concurrent term of 8 years’ imprisonment for possession of a weapon by a felon.

On direct appeal, House’s convictions and sentences were affirmed. Id. at ¶ 13-14. House then filed a post-conviction petition, which raised a claim of actual innocence based on newly discovered evidence contained in six attached affidavits. Id. at ¶ 15. One affidavit, provided by Mario Davis, averred that he had witnessed the shooting and appellant was not the shooter. Another, provided by Albert Prince averred that in June of 2011, Detective Timothy Moore had approached House and told him that he would “do whatever to send him back to prison.” Id. at ¶ 17.

Additional eyewitness accounts contended that House was not the shooter, that defense counsel had failed to follow through on a key investigative promise to hire a private investigator, and, most notably, that Pannell told Kenwaun Murray that “he lied about [House] being involved in the shooting because he couldn’t do all the time that Peoria County was going to give him for his gun charge.” Id. at ¶ 20. The State filed a motion to dismiss the petition, arguing that it was legally deficient and did not address claims of actual innocence. Attached to the motion was an affidavit from Assistant State’s Attorney Brian Fitzimmons, which averred that the State did not make an offer to Parnell in exchange for his testimony in this case.

The State then filed an amended motion to dismiss, arguing that the affidavits provided by House did not support allegations of ineffective assistance of counsel, were immaterial, and were insufficient to have changed the outcome of the case. Id. at ¶ 22. Later, House provided an affidavit from Corey Hunter, an eyewitness to the shooting, who claimed he could identify the shooter, which was not House. The State’s motion was granted. This appeal followed.

On appeal, House argued that the court erred in dismissing his post-conviction petition at the second stage of proceedings because he had made a substantial showing of actual innocence based on newly discovered evidenced that another individual committed the crime. Id. at ¶ 27. In reviewing the record, the appellate court acknowledged that at the second stage of proceedings, the court is tasked only with ruling on the legal sufficiency of the petition’s allegations. Id. at ¶ 28. As such, at the second stage, courts must take all well-pleaded facts that are not positively rebutted by the record as true.

In order for a claim of actual innocence to advance to a third-stage evidentiary hearing, a petition (and supporting documents) must make a substantial showing that the evidence is newly discovered, material and not merely cumulative, and of such conclusive character that it would probably change the result on retrial. Id. at ¶ 29.

On the requirement that all evidence be newly discovered, the court found that because all of the affidavits were sworn between September 2014 and September 2017, the dating indicates that the material was generally undiscoverable at the time of the trial. Moreover, the court found, specifically in regard to the affidavit from Hunter, the affiant explained his reluctance to come forward and participate in the case. Id. at ¶ 30. The court found no evidence in the State’s or defendant’s witness disclosures that any of the affiants were available to testify at the time of trial. The court explained further that the legitimacy of the explanations of failing to come forward earlier are a matter for third-stage proceedings. Therefore, the court held that appellant had made a substantial showing that the evidence was newly discovered.

On the requirement that the evidence was material and not merely cumulative, the court noted that the State solely argued that Murray’s affidavit was immaterial and did not address the others. On Murray’s affidavit, the court determined that because Pannell was the sole eyewitness to identify House as the shooter, his motivations to falsely identify defendant as the shooter is material to the determination of appellant’s innocence. Id. at ¶ 31.

Finally, on the requirement that the evidence be of such a conclusive character that it would probably change the result on retrial, the court held that (because the surveillance video only provided a limited view of the shooter) the refutation of Pannell’s identification testimony possesses the potential to lead to a different result. Id. at ¶ 32.

Ultimately, viewing the affidavits together and liberally construing them in favor of the appellant, the Third District appellate court concluded that House made a substantial showing of actual innocence and that the Circuit Court of Peoria County erred in dismissing his petition. As such, the court reversed and remanded the dismissal for third-stage proceedings.

The appellant in People v. Dunn, 2019 IL App (1^st) 150198 appealed the trial court’s decision denying him leave to file a successive petition for relief under the Post-Conviction Hearing Act, arguing on appeal that he had standing under the Act to pursue his claim of actual innocence because of his ongoing requirement that he register as a sex offender. The Appellate Court affirmed.

Maurice Dunn was originally charged with, and convicted of, rape and aggravated battery for an incident in July of 1979. Following a first trial which ended in a mistrial, Dunn was retried in September of 1980 and found guilty of rape, aggravated battery causing great bodily harm, and aggravated battery on a public way and was sentenced to 40 years imprisonment. Id. at ¶ 5.

On direct appeal, Dunn argued that his second trial violated double jeopardy, he was denied the effective assistance of counsel because defense counsel was unprepared, the trial court erred in denying a motion to suppress the victim’s in-court identification, he was not proven guilty beyond a reasonable doubt, he was not indicted with aggravated battery on a public way, and the trial court abused its discretion in sentencing him to an extended term. Id. at ¶ 6. The conviction for aggravated battery on a public way was vacated while everything else was affirmed by the court.

Dunn then filed a pro se post-conviction petition restating many of the claims raised on direct appeal. Id. at ¶ 7. The petition was dismissed following a motion to dismiss filed by the State. While the petition was pending, Dunn sent letters to the State and the trial court requesting genetic testing or “chemical castration.” On appeal, Dunn argued that the circuit court erred in dismissing his post-conviction petition, which contained a viable claim of actual innocence based on the assertion that genetic testing would exonerate him. Id. at ¶ 9. In the alternative, Dunn requested that the case be remanded for further proceedings because he was denied the reasonable assistance of post-conviction counsel when she did not amend his pro se petition to include a claim of actual innocence.

The court reversed the dismissal of the petition and remanded the cause for consideration of Dunn’s motion for genetic testing. Id. at ¶ 9. The motion was ultimately dismissed by the circuit court. Dunn was released from prison in June of 2001, completed parole, and registered as a sex offender. Id. at ¶ 10. In July of 2014, Dunn sought leave, through counsel, to file a successive petition for postconviction relief alleging actual innocence. The petition acknowledged that appellant was no longer serving a “custodial sentence” but asserted that section 122-1(c) of the Act eliminated the statute of limitations for claims of actual innocence, regardless of such status. Id. at ¶ 11.

The petition alleged actual innocence based upon new evidence that the victim misidentified Dunn in a police lineup. Dunned argued that based on analysis of the lineup using recently enacted Illinois standards, the State willfully or inadvertently concealed the victim’s rape kit before the first trial, and Vemon Watson, who was convicted for a series of nearly identical sexual assaults in the same area where the victim in this instance was assaulted, made a “tacit” confession. Id. at ¶ 11. The circuit court entered a written order denying Dunn leave to file the petition because he lacked standing under the Act when he was neither in prison nor on parole. This appeal followed.

On appeal, Dunn argued that the fact that he has completed his sentence does not prevent him from advancing a claim of actual innocence under the Act. Dunn cited his ongoing requirement to register as a sex offender as justification for his appeal. Id. at ¶ 13. In response, the State argued that the denial of leave to file a successive post-conviction petition, based upon a lack of standing, was proper because Dunn had already completed his sentence and parole nearly a decade before.

The Appellate Court noted that “generally, to initiate an action under the Act, a person must be imprisoned in the penitentiary.” Id. at ¶ 15. The Illinois Supreme Court has determined that a defendant is “imprisoned” when his liberty is curtailed in some way by the State because of the criminal conviction that he is attempting to challenge. Specifically, the court has established that liberty is curtailed when a defendant is “always on a string, and the State may pull the string whenever it pleases.” Id. at ¶ 15.

Further, the court established that a defendant retains standing under the Act so long as “he is challenging a conviction from which he continues to serve some form of sentence, such that his liberty would be directly affected by invalidating his conviction.” Id. at ¶ 16. However, the court determined that “the Act and its remedies are not available to defendants who have completed their sentences and merely seek to purge their criminal records.” Id. at ¶ 17.

It was “undisputed” in Dunn’s case that he had completed his sentence and parole prior to his 2014 attempt to seek leave to file a successive post-conviction petition. Therefore, “invalidating his conviction would not have affected his liberty.” Id. at ¶ 18. Accordingly, the court determined that Dunn lacked standing to file a post-conviction petition in 2014 because he was no longer completing any part of his sentence. As to Dunn’s assertion that his on-going requirement to register as a sex offender provided him standing to file, the court held that collateral consequences resulting from a conviction are not actual restraints on liberty sufficient to implicate the Act. Id. at ¶ 18. The court cited People v. Downin, 394 Ill. App 3d 141 (2009) in support of such holding.

Ultimately, because Dunn was no longer serving any portion of his sentence when he filed his motion for leave to file a successive post-conviction petition, he had no standing to seek post-conviction relief and thus, the circuit court properly denied him leave the file the petition. Id. at ¶ 21. The Appellate Court of Illinois First District affirmed the judgement of the Circuit Court of Cook County.

The appellant in People v. White, 2020 IL App (5^th) 170345 appealed the trial court’s order denying his motion for leave to file a successive post-conviction petition, alleging that White made a sufficient showing of cause-and-prejudice in his motion. The Fifth District Appellate Court affirmed.

Douglas White was originally charged and convicted of two counts of first-degree murder and one count of concealment of a homicidal death related the murder of his grandmother and her friend. Id. at ¶ 4. White was sentenced to natural life imprisonment for each of the murder counts and five years’ imprisonment for the concealment of homicidal death. White’s convictions and sentences were affirmed on direct appeal. Id. at ¶ 5.

In his first collateral attack on his conviction, White filed a pro se post-conviction petition, which was summarily dismissed as frivolous and patently without merit. The appellate court affirmed. Id. at ¶ 7. In a second collateral attack, nine months prior to the appellate court affirming the dismissal of his pro se petition, White filed another pro se pleading that combined a successive petition for post-conviction relief with a petition for relief from judgement under section 2-1401 of the Code of Civil Procedure. Id. at ¶ 9.

The matter was continued pending a resolution of the first appeal and finally resulted in the filing of a sixth amended petition (appellant filed numerous pro se amended petitions and a few with counsel during this time period), which raised 13 claims. The amended petition was dismissed for being untimely under section 2-1401. Id. at ¶ 11.

In a third collateral attack, White filed a pro se motion for leave to file a successive post-conviction petition, asserting that his mandatory natural life sentences violated the eighth amendment of the Constitution and the proportionate penalties clause of the Illinois Constitution, as applied to him, because he was a “20 year old minor” at the time of the murders. Id. at ¶ 13. White cited recently discovered scientific evidence of the maturation of individuals’ brains between the ages of 18 and 21, including “evidence” of “nonapplications” of natural life sentences for multiple murder charges. White also presented affidavits from individuals who had allegedly heard his brother brag about receiving a sentence reduction as part of his plea agreement. Id. at ¶ 14. The court denied the motion for leave, finding that White had “failed to make a sufficient showing of either cause or prejudice.” Id. at ¶ 15. This appeal followed.

The Appellate Court noted that leave of court may only be granted if both cause and prejudice are demonstrated by the petitioner. This is the case because White did not raise a claim of actual innocence. The Appellate Court found that White could not establish prejudice “since his claims are not legally cognizable.” Id. at ¶ 18.

First, the court determined that White’s age at the time he murdered his grandmother and her friend was insufficient to consider him “youthful,” such that a mandatory life sentence would be cruel and unusual under the eighth amendment. Id at ¶ 19. The court considered White an adult at the time of offense.

Because Miller protections to do not apply to adult offenders, White was not entitled to benefit from specific considerations that attend youth at sentencing. Id. at ¶ 20. The court held that White’s as-applied challenge failed to demonstrate that White was more like a child than an adult at the time of offense. Further, the court determined that the statute under which White was sentenced is facially valid for adult offenders and cannot amount to a violation of the eighth amendment. Id. at ¶ 21.

The court applied similar reasoning to the proportionate penalties clause challenge and ultimately determined that “his degree of culpability and adult age do not justify advancing his petition, as his case was distinguishable from those cited in his petition, as he was in fact, an adult.” Id. at ¶ 22-26. Ultimately, the court held that White’s sentence of natural life imprisonment did not shock the moral sense of the community and did not violate the proportionate penalties clause of the Illinois Constitution. Id. at ¶ 29.

The Appellate Court of Illinois Fifth District affirmed the judgment of the Circuit Court of Madison County.

The appellant in People v. Abtahi, 2020 IL App (1^st) 181631, appealed the trial court’s order dismissing his section 2-1401 petition, arguing on appeal that the circuit court erred by dismissing the petition without considering his argument on the merits. The First District Appellate Court affirmed.

Farzad Abtahi was originally charged with manufacture or delivery of a substance containing heroin. Prior to trial, Abtahi and the State agreed that he would plead guilty to Class 1 possession with intent to deliver a controlled substance in exchange for a recommendation of probation. Id. at ¶ 5. The trial court accepted the plea and sentenced Abtahi to two years’ probation. Id. at ¶ 7. Abtahi did not appeal or file a motion to withdraw his guilty plea after being admonished of his right to do so.

In 2017, Abtahi, represented by the same attorney from the original plea hearing, filed a section 2-1401 petition alleging that the trial court knew Abtahi was not a US citizen but had failed to admonish him that he was pleading guilty to a “deportable offense.” Id. at ¶ 8. The petition argued that “the lack of proper admonishment regarding the effect of his plea on his immigration status was clearly a prime factor in [his] decision to plead guilty,” that Abtahi had a meritorious defense, that Abtahi would likely not have been found guilty at trial,  and that the factual basis for the plea failed to establish unlawful possession of a controlled substance. Id. at ¶ 8.

The 2-1401 petition, which filed after the two-year statute of limitations expired, effectively alleged that the conviction was “void” and should be vacated. In response, the State filed a motion to dismiss the petition, arguing that Abtahi failed to demonstrate that his petition was exempt from the limitations period because the trial court had personal and subject-matter jurisdiction, the statute Abtahi was charged and convicted under was constitutional; and Abtahi had not alleged disability, duress or fraud. Id. at ¶ 9. The circuit court dismissed the petition, finding that it was untimely and that Abtahi had failed to demonstrate the trial court’s lack of personal or subject matter jurisdiction and did not allege that his conviction rested on a facially unconstitutional statute. Id. at ¶ 12. This appeal followed.

On appeal, Abtahi argued that the trial court abused its discretion by dismissing his section 2-1401 petition without addressing the merits because Abtahi “never pled guilty on the record and, therefore, the trial court did not have jurisdiction to enter his guilty plea or sentence him.” Id. at ¶ 14. In its review, the appellate court noted that in order to prevail on a section 2-1401 petition, a movant must prove, by a preponderance of the evidence: 1) the existence of a meritorious claim or defense, 2) due diligence in presenting the claim or defense, and 3) due diligence in filing the petition. Id. at ¶ 15. Further, the appellate court noted that the exception to the two-year statute of limitations on such petitions is valid only if the petition attacks a final judgment on voidness grounds–meaning that the judgment was entered by a court lacking jurisdiction or that the conviction stemmed from a facially unconstitutional statute.

Here, because Abtahi argued that the trial court lacked jurisdiction to enter judgment on the guilty plea, and not that he was convicted under a facially unconstitutional statute, the court only evaluated that potential exception to the two-year limitation on section 2-1401 petitions. The court ruled that the record clearly demonstrated the trial court’s personal and subject-matter jurisdiction when it entered judgment on Abtahi’s guilty plea. Further, the court held that by being present at the plea hearing, Abtahi had conferred personal jurisdiction on the trial court. As such, the court held that Abtahi failed to demonstrate the judgment was void and thus was not excused from the limitations period. Id. at ¶ 19.

The First District affirmed the judgment of the Circuit Court of Cook County.

The appellant in People v. Womack, 2020 IL App (3d) 170208 appealed the trial court’s dismissing his motion for leave to file successive post-conviction petition, which alleged that Womack satisfied the cause-and-prejudice test by demonstrating that the 20-year firearm enhancement added to his sentence violated the proportionate penalties clause of the Illinois Constitution and under Miller v. Alabama, 567 U.S. 460 (2012). The Appellate Court of Illinois Third District ultimately reversed the decision of the circuit court and remanded for second-stage proceedings.

Robert Womack was originally charged with attempted first-degree murder, aggravated battery with a firearm, and aggravated unlawful use of a weapon. At trial, evidence established that Womack was 16 years old at the time of the shooting. Id. at ¶ 3. It was also revealed that the victim in this case, Michael McCarns, had been involved in a verbal altercation which later escalated into McCarns threatening to shoot Womack’s entire family. Id. at ¶ 3. Womack shot McCarns, who was paralyzed from the shooting. Womack admitted to shooting McCarns, but said that he had threatened him.

Following his conviction, Womack faced a minimum sentence of 26 years in prison. Id. at ¶ 5. The PSI revealed that Womack had struggled academically throughout his childhood, had trouble with his peers and was often teased, and was removed from school following a serious car accident in the 9^th grade. Womack did not have a criminal record before the offenses for which he was convicted. At the sentencing hearing, the court noted that Womack did not display any remorse for the victim and, at its discretion, sentenced Womack to 18 years for the first-degree murder, plus a 20-year mandatory firearm enhancement, resulting in a 38-year-sentence. Id. at ¶ 6.

On direct appeal, the conviction for attempted murder was affirmed while the aggravated unlawful use of a weapon conviction was reversed. Womack then filed a petition for post-conviction relief, alleging that the mandatory sentencing provisions that resulted in his 38-year sentence violated his due process rights and that he was denied effective assistance of counsel and the right to an impartial jury. Id. at ¶ 7. The petition was denied by the trial court, which found that the firearm enhancement was constitutional pursuant to People v. Sharpe, 216 Ill 2d 481 (2005).

On appeal, Womack did not challenge the constitutionality of the firearm enhancement, and the appellant court affirmed the trial court’s denial of Womack’s petition. Womack, seven years later, moved for leave to file a successive post-conviction petition, alleging, in light of Miller, that the statutory scheme that led to his sentence violated the federal and state constitutions, facially and as applied. Id. at ¶ 8. The trial court denied leave to file the petition, noting that his “undeniably harsh” sentence was imposed after consideration of mitigating and aggravating factors. Id. at ¶ 9. This appeal followed.

On appeal, Womack contended that the trial court erred in denying his motion for leave to file a successive post-conviction petition, arguing that he sufficiently alleged cause-and-prejudice by demonstrating that, under Miller, the firearm enhancement violated the proportionate penalties clause as applied to him. Id. at ¶ 13. The Appellate Court noted that the proportionate penalties clause requires that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Id. at ¶ 14. Moreover, the court noted that a violation may be found where the penalty imposed is “cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community.”

In determining whether Womack’s punishment met such a threshold, the court considered the gravity of the offense in connection with the severity of the mandated sentence within the community’s evolving standard of decency. Id. at ¶ 14. To that end, the court noted that recent Illinois case law “demonstrates the mandatory imposition of firearm enhancements for juveniles no longer reflects Illinois’ evolving standard of decency.” Id. at ¶ 15. The court, in Barnes, 2018 IL App (5^th) 140378, and Aikens, 2016 IL App (1^st) 133578, held this, finding that 15-year and 20-year enhancements for possession and use (respectively) of a firearm violated the Illinois constitution, as applied to juvenile offenders. Further, under Illinois law, trial courts now have the discretion to decline to impose the enhancements on juvenile offenders. Id. at ¶ 16.

As such, the Appellate Court held that “applying the 20-year mandatory firearm enhancement to appellant in this case violates the proportionate penalties clause of the Illinois constitution.” Id. at ¶ 17. The court further concluded that Womack’s claim satisfied both prongs of the cause-and-prejudice test for successive post-conviction petitions. Id. at ¶ 18. Ultimately, the Appellate Court held that Womack’s motion for leave to file his successive post-conviction petition should have been granted. The Court remanded the cause for second-stage proceedings to allow for the requisite factual development of those constitutional claims. Id. at ¶ 22.

The judgment of the Circuit Court of Kankakee County was reversed and remanded with directions.

The appellant in People v. Brown, 2020 IL App (1^st) 170980 appealed the trial court’s order dismissing his pro se post-conviction petition claiming ineffective assistance of trial counsel. Brown argued on appeal that the circuit court erred by dismissing his petition where he made a substantial showing of a constitutional violation. The Appellate Court affirmed.

Kiar Brown was originally charged and convicted of first degree murder and sentenced to 55 years’ imprisonment. Id. at ¶ 1. At trial, the State presented testimony from multiple eyewitnesses, two of whom were minors, who had observed the commission of the crime, saw Brown conceal the weapon used in the commission of the crime, notified police, gave sworn statements and selected Brown out of a lineup shortly thereafter. Id. at ¶ 5-21.

The defense presented testimony from one witness, Tenija Ratcliffe, who disputed part of the eyewitness testimony regarding beads in Brown’s braids, as she had braided his hair that day and testified that Brown was with her at a barbecue during the murder. Id. at ¶ 27. Brown did not to testify and rested following Ratcliffe’s testimony. The State presented a portion of Brown’s post-arrest, video-recorded statement to rebut his alibi defense. Brown indicated in his statement that he left the barbecue approximately at hour before the murder. Id. at ¶ 30. After the recording of the video was played for the jury, Brown was found guilty of murder. Id. at ¶ 31.

On direct appeal, Brown argued that his sixth amendment right to effective assistance of counsel was violated where his trial counsel presented Ratcliffe’s alibi testimony, which contradicted his post-arrest statement to police. Id. at ¶ 32. The court affirmed his conviction. While his appeal was pending, Brown filed a petition for injunctive relief, alleging various improprieties in the grand jury process that rendered his indictment invalid. The court dismissed the petition and Brown appealed. The appellate court affirmed the trial court’s judgement. Id at ¶ 33.

Brown then filed a post-conviction petition in which he asserted a litany of claims, including a claim of ineffective assistance of counsel. The ineffective assistance of counsel was based on counsel’s failure to inform the trial court that Brown had overhead an ASA tell a witness the contents of a previous witnesses’ testimonies, what she was going to ask him, and what she expected the witness to say in response. Id. at ¶ 34. No action was taken on the petition within 90 days, and it was advanced to the second stage of proceedings, where counsel was appointed. Brown filed a motion to proceed pro se, which the court granted. The State filed a motion to dismiss, which was granted by the court. Brown appeal after the trial court denied Brown’s motion to reconsider.

On appeal, Brown argued that the allegations in his petition and affidavit substantially showed that he was deprived of his right to effective assistance of counsel. In its review, the court noted that a second stage dismissal is proper “where the defendant’s claims, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation.” Id. at ¶ 41.

The appellate court applied the Strickland test and determined that Brown had failed to make a substantial showing of prejudice originating from counsel’s alleged deficient performance, as “even if we presume [the witnesses’] testimony would have been excluded at trial, it is unlikely the outcome would have been different.” Id. at ¶ 43-45. The court noted that the evidence against Brown was “overwhelming.” Id. at ¶ 46. Further, the court determined that because the eyewitness descriptions and identifications presented at trial were positive and reliable, there is no probability that the result of the trial would have been different but for counsel’s failure to seek exclusion of specific testimony. Id. at ¶ 52. As such, the court held that the petition failed to set forth a substantial showing of a constitutional deprivation and that the trial court properly dismissed the petition. Id. at ¶ 52.

The Appellate Court affirmed.

The appellant in People v. Suggs, 2019 IL App (2d) 170632 appealed the trial court’s order summarily dismissing his pro se post-conviction petition, which argued that the prohibition against the imposition of de facto life sentences should be extended to cover “young adult offenders” who are no longer juveniles. The appellate court affirmed.

Montago Suggs was originally charged with and convicted of first degree murder, attempted murder, and attempted armed robbery with a firearm. At sentencing, the trial court noted Suggs’ extensive juvenile and adult criminal histories, including multiple violations of probation, threats on Department of Corrections staff and personnel, and various kinds of criminal theft. Id. at ¶ 7-11. In allocution, Suggs apologized to the victim and families, yet denied responsibility for the charges for which he was convicted. Id. at ¶ 11.

The State recommended a life sentence for the murder conviction and a 45-year term for the attempted murder conviction. Id. at ¶ 12. Defense counsel argued in mitigation that Suggs was young when the offenses were committed and that he had accepted responsibility for his previous crimes by pleading guilty in all of his juvenile and adult cases. No sentence length recommendation was made by defense counsel. In imposing sentence, the trial court stated that it had considered all of the evidence introduced at each trial, the PSI, the victim impact statements, defendant’s statements in allocution, the parties’ arguments, the statutory and non-statutory factors in mitigation and aggravation, the cost of incarceration, and the defendant’s rehabilitative potential, before imposing a sentence of 80 years for the first degree murder and concurrent 30-year and 28-year sentences for the attempted murder and attempted armed robbery convictions. Id. at ¶ 13-19. In total, Suggs was sentenced to 110 years imprisonment.

Suggs filed a motion to reconsider the sentence, which was denied by the trial court. Id. at ¶ 20. On direct appeal, Suggs challenged his convictions based on the trial court’s denial of his motion to suppress a custodial statement and challenging a fee assessed against him as part of his sentence. Id. at ¶ 21. The convictions were affirmed by the appellate court and the fee was vacated.

Suggs then filed a pro se post-conviction petition, arguing that his aggregate 110-year sentence violated the eighth amendment, and, as a de facto life sentence, failed to provide him a meaningful opportunity to obtain release based on maturity and rehabilitation. Id. at ¶ 22. The trial court summarily dismissed the petition, holding that the court was both within statutory limits in sentencing and that such claims were barred by res judicata for Suggs’ failure to raise the sentencing issues on direct appeal. Id. at ¶ 22. This appeal followed.

On appeal, Suggs argued that, in light of recent scientific developments and understanding of the neurophysiological and mental development of juveniles and young adults, the prohibition against de facto mandatory life sentences should be extended to young adults who, while no longer being juveniles, are also not fully mature adults. Id. at ¶ 25. Additionally, Suggs argued that the court insufficiently considered the transient qualities of youth when imposing his sentence and deprived him of the opportunity to achieve rehabilitation.

The court noted that Suggs was 23 years old at the time he committed the offenses for which he was convicted. The court acknowledged that the Illinois Supreme Court has held that all juvenile life sentences, mandatory or discretionary, are unconstitutional unless the trial court considers the offender’s youth and attendant characteristics. Id. at ¶ 32. In his appeal, Suggs argued that the trend, legally and scientifically, was to give the signature qualities of youth additional weight in sentencing, which should also apply in Suggs’ case.

However, while acknowledging the trends, the appellate court noted that Suggs faced “the significant hurdle that no court has yet applied the Roper–Graham–Miller trio to an offender of defendant’s age, 23 years at the time of the offense.” Id. at ¶ 33. Illinois courts have routinely examined and (in specific instances) applied the expansion of those protections to offenders under 21 years old, but courts have not considered the same for those older than 21 years old. Id. at ¶ 34-35.

Moreover, in the specific context of Suggs’ case, the court noted that “few if any” of the significant qualities of youth that would be used to mitigate his sentence were evident in the planning and execution of the offenses he committed. Id. at ¶ 36. Specifically, the appellate court found that the careful planning of the crimes by Suggs were “at odds with a young person’s tendency not to appreciate the risks and consequences” of criminal behavior. Id. at ¶ 36. Ultimately, the appellate court held that the record contained ample evidence of Suggs’ maturity and did not support treating him as a juvenile instead of as an adult. As such, the court rejected the contention that appellant’s sentence did not comport with constitutional strictures. Id. at ¶ 37. The court applied the same thinking to their rejection of appellant’s challenge to the rehabilitation clause of the Illinois Constitution. Id. at ¶ 39-42.

The Appellate Court of Illinois Second District affirmed the judgement of the Circuit Court of Lake County.

In People v. Whalen, 2019 IL App (4th) 190171, the State appealed the trial court’s order granting defendant Donald Whalen’s 2-1401 petition vacating his murder conviction and ordering a new trial. The State argued that Whalen’s claims were time barred and should have been dismissed, the trial court’s decision was made on an incorrect standard set forth in People v. Davis, 2012 IL App (4^th) 110305, and that the decision was manifestly erroneous. The Fourth District ultimately reversed the trial court’s order and remanded for further proceedings to determine whether a different result would be “probable” based on new evidence in the case.

Whalen was charged with and convicted of the murder of his father, William Whalen, and sentenced to 60 years’ imprisonment. Id. at ¶ 20. At trial, the State disclosed evidence of an alleged match between a bloody latent palm print on a broken pool cue and Whalen. Id. at ¶ 5. A latent print examiner testified that the print left a “put-down” impression and opined that Whalen had blood on his palm prior to grabbing the cue stick. In addition to the palm print, the State presented evidence regarding Whalen’s shoes. The jury was presented with evidence that Whalen regularly wore a model of Converse shoes with a distinctive sole, matching that of the bloody shoe print at the scene. Id. at ¶ 12. The jury heard further evidence that Whalen had disposed of a pair of shoes, matching the print left at the scene, in the days preceding his arrest. Whalen testified on his own behalf and presented two alibi witnesses. Id. at ¶ 16.

On direct appeal, the appellate court held that defendant could not complain about the court’s refusal to allow his expert witness testimony and that the court had not abused its discretion in allowing the State to present evidence regarding the purchase of drugs, by Whalen, shortly following the murder. The court also held that the trial court did not err by prohibiting defendant from introducing evidence about an additional suspect in the murder. Id. at ¶ 21. The court noted that no evidence linked McElvaney, the other alleged perpetrator, to the crime scene. Id. at ¶ 23.

Whalen then filed a pro se motion (and supplemental amended motions) for DNA testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963, asking for DNA testing to be done on nine blood swabs from various areas of the crime scene, hair found in the victim’s hand and on a nearby table, and bloody knives found at the scene. Id. at ¶ 24. The evidence in question was stored in a box, unsealed, and was determined, by forensic testing experts, to be in a state which would not yield reliable results because contamination was too high. Id. at ¶ 26.

However, after testimony by Dr. Reich,  the defense’s forensic expert, the trial court entered an order finding that Whalen met his burden in establishing a prima facie case for ordering DNA STR testing of the blood samples taken at the crime scene, hair samples, and blood samples taken from the knives found at the crime scene. Id. at ¶ 32. The court denied the request to test the actual knives, for chain of custody reasons. Following multiple amended motions and appeals, the court reversed the trial court’s denial of defendant’s request to have the actual knives tested, holding that “a mixed DNA sample is accepted in the scientific community to reliably reveal the number of contributors to a DNA sample and major versus minor contributors. Further, testing may materially advance defendant’s claim of innocence as defendant raised at trial, through an offer of proof, a specific named individual committed the murder and he was prevented from presenting testimony from an expert witness.” Id. at ¶ 38.

After testing, defendant was excluded as the source of any DNA found on the knives. Id. at ¶ 40. Further, telephone logs of calls between Bloomington police officers and an expert witness, Dierker, revealed the link between Whalen and the partial palm print found on the broken pool cue was “inconclusive as to the victim” and overall, “suspect.” Id. at ¶ 42. In a supplement to his initial section 2-1401 petition, defendant noted that a test was never performed to determine whether the latent palm print on the pool cue was in blood, and thus Dierker’s testimony was without evidentiary or scientific basis. A latent print expert, Michele Triplett, reported that the print could have been left on the pool cue before the murder. Id. at ¶ 46.

In a motion dismiss filed in response to Whalen’s 2-1401 petition, the State argued that parts of the petition relating to the latent print should be dismissed because Dierker’s telephone logs had been provided via discovery in 2007 but were not the subject of a 2-1401 petition until 2017. The State further argued that Triplett’s potential testimony should be stricken from the petition because it was untimely and barred by res judicata principles. Id. at ¶ 27. An evidentiary hearing was held, where Drs. Reich, Dierker and Triplett provided testimony.

The trial court ultimately determined that the State’s case was based almost “entirely on circumstantial evidence and centered around the blood and print evidence,” which the aforementioned experts had reviewed and provided unimpeached testimony on. Id. at ¶ 67. The court further determined that the State’s argument regarding defendant’s motive was also entirely circumstantial. The trial court ultimately found that a potentially unknown assailant was implicated by the DNA evidence on the knives and this evidence, had it been available to defendant at trial, and would have changed the way the defendant’s jury considered the evidence. Id. at ¶ 71.

The court also agreed with Whalen’s arguments related to Dierker’s telephone calls and testimony. In conclusion, the trial court stated: “the likelihood of a different result [at trial] is great enough to undermine the confidence in the outcome of the trial” and as such, allowed the section 2-1401 petition, vacated his convictions and ordered a new trial. Id. at ¶ 75. This appeal followed.

On appeal, the State argued that the claims related to the latent palm print on the pool cue stick were time-barred and should not have been considered and that the order granting the 2-1401 petition was manifestly erroneous and should be reversed outright. Id. at ¶ 79. In the alternative, the State argued the trial court applied the wrong standard, and the appellate court should remand the case to the trial court to reconsider its order under the proper standard.

On the palm print claim, the appellate court noted that the State had conceded that the defense could proceed with the section 2-1401 petition because of the new DNA evidence in the case. Further, the appellate court pointed to the State’s own brief and oral arguments, which posited that the telephone log evidence would be admissible in section 2-1401 litigation. The court found that the DNA tests performed on the knives were the primary basis for the petition as written, thereby rejecting the State’s argument related to the palm print claim being time-barred. Id. at ¶ 83.

As to the trial court’s order granting the 2-1401 petition, the appellate court found this case distinguishable from previous cases that relied upon biological evidence, which would typically justify a ruling like the trial court’s. In fact, Whalen was found guilty without any biological evidence tying him to the murder. Moreover, the court noted the fact that “DNA evidence was not found at the murder scene, on its own, does not establish [defendant] did not commit the crime.” Id. at ¶ 88. Further, the court highlighted that nobody was identified from the DNA testing other than defendant– despite testing revealing mixed samples that, according to Dr. Reich’s testimony, could have resulted from contamination. Id. at ¶ 91.

The appellate court shared Dr. Reich’s befuddlement at the lack of DNA evidence left behind by the assailant, but acknowledged that it was possible that no DNA was left behind. Id. at ¶ 92. The appellate court agreed with the State that, up until the filing of the petition, the defense had seemingly agreed with the inference that the substance on the pool cue was blood, despite a lack of testing of the substance in which the palm print was left. Id. at ¶ 99. Further, the court agreed that the trial court mistakenly equated the standards “probably change the result of retrial” with a “reasonable probability” standard established in precedent. Id. at ¶ 100.

Ultimately, based on the record in this case, the appellate court held it was unclear whether the trial court would have vacated defendant’s conviction and ordered a new trial if the court had not followed the “reasonable probability” standard erroneously and, as a result, the appellate court reversed the trial court’s order vacating the conviction and directed the trial court to determine whether it was “probable” or “more likely than not” a jury would acquit after a new trial. Id. at ¶ 103.

The Appellate Court of Illinois Fourth District ultimately reversed the decision of the Circuit Court of McLean County and remanded for further proceedings.