Order Denying Leave to File Successive Petition Reversed Where Firearm Enhancement Violated Proportionate Penalties Clause

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 9th 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 (5th) 140378, and Aikens, 2016 IL App (1st) 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.

Trial counsel was not ineffective for failing to bar testimony that would not have impacted the verdict

The appellant in People v. Brown, 2020 IL App (1st) 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.

Court holds that de facto life sentence rule did not apply to 23-year-old defendant sentenced to 110 years

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 RoperGrahamMiller 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.

Trial court’s order granting a new trial reversed on appeal where trial court used wrong standard to review 2-1401 petition

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 (4th) 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.

Defendant’s post-conviction petition properly denied when he sought new counsel on the day of trial

The appellant in People v. White, 2019 IL App (4th) 160793, appealed the trial court’s order dismissing his pro se post-conviction petition, which alleged that trial counsel was ineffective and the trial court violated his right to be represented by counsel of his choice. Ultimately, the Appellate Court of Illinois Fourth District granted a motion filed by the OSAD to withdraw and affirmed the trial court’s judgment.

Ronald White was originally charged and convicted of two counts unlawful delivery of heroin within 1000 feet of a church and sentenced to seven years in prison. Prior to trial, White informed the court of his wish to terminate his public defender and retain private counsel. When questioned by the court regarding that decision, White informed the court, on the day trial was to begin, that his family was attempting to raise money to hire a private attorney. White also stated his displeasure with the representation of his public defender and had filed a complaint with the public defender’s office. Id. at ¶ 6-8. The request for time to hire a private attorney was denied and the case proceeded to a jury trial.

At trial, a confidential information, Curtis Kitchen, testified about an arranged sale between White and himself at a local McDonald’s. Id. at ¶ 12. White was later arrested and blamed the sale on someone else. Id. at ¶ 15. White denied engaging in the sale directly, but did admit to using narcotics with Kitchen in the bathroom during the sale. At the close of evidence, the trial court denied a request by White to instruct the jury of the entrapment defense, and the jury found White guilty. Id. at ¶ 16. White then appealed his conviction, which was affirmed by the appellate court. Id. at ¶ 17.

White filed a pro se post-conviction petition, alleging ineffective assistance of trial counsel and a violation of his right to be represented by counsel of his choice. The petition was dismissed, as the court determined that it was frivolous and patently without merit. Id. at ¶ 19. On appeal, OSAD was appointed to represent appellant. OSAD moved to withdraw as counsel, contending that any appeal in this case would be frivolous. Id. at ¶ 20.

On appeal, White alleged that his post-conviction petition was erroneously dismissed. The OSAD motion noted that it considered whether (1) it was arguable that any procedural error at trial warranted reversal, (2) the post-conviction petition stated an arguable claim of ineffective assistance of counsel, and (3) the post-conviction petition stated an arguable claim that the trial court denied White his right to counsel of his choice at trial. OSAD believed none of the three arguments were viable.

The appellate court concluded that no such procedural errors (as alleged by White) existed and determined that the dismissal within the 90-day period provided by the statute was proper. Id. at ¶ 29-31. The appellate court also concluded that White’s claims regarding the insufficiency of evidence presented by the State did not amount to a claim of ineffective assistance of counsel.

The appellate court also concluded that “although a defendant in a criminal case has a constitutional right to be represented by counsel of his choice, a trial court has the discretion to determine whether a defendant’s right to select counsel unreasonably interferes with the orderly administration of justice.” Id. at ¶ 37. Further, the court stated that “a court does not abuse its discretion by denying a motion to continue to obtain alternative counsel ‘where new counsel is unidentified… especially when a defendant cannot articulate an acceptable reason for desiring new counsel and is already represented by an experienced, court-appointed criminal lawyer.” Id. at ¶ 37. The court determined that because White made no real effort to hire counsel, had neither the money nor contact with alternative counsel, waited until the day of trial to request more time, and failed to provide an acceptable reason for desiring new counsel, the trial court was well within its discretion to deny the motion to continue. Id. at ¶ 39.

The Appellate Court of Illinois Fourth District ultimately agreed with OSAD that none of the above-mentioned claims were arguable, and thus, granted the motion to withdraw and affirmed the judgment of the trial court. Id. at ¶ 59.


Court holds that an acquittal does equate to factual innocence

The appellant in People v. Quickle, 2019 IL App (3d) 170281 appealed the trial court’s order denying his motion for leave to file a second successive postconviction petition. Ultimately, the appellate court affirmed the trial court.

Donald Quickle was charged with several counts of murder and armed robbery. Initially, Quickle pled guilty to all counts, but later withdrew his plea. Quickle was then convicted at a jury trial of first degree murder and armed robbery and sentenced to consecutive prison terms of 60 years and 30 years, respectively. Id. at ¶ 7. On direct appeal, the appellate court affirmed both Quickle’s convictions and sentences. Id. at ¶ 8. Shortly thereafter, Quickle filed a pro se post-conviction petition and post-conviction counsel was appointed. Post-conviction counsel filed an amended petition on Quickle’s behalf, alleging ineffective assistance of trial counsel and denial of due process. The State filed a motion to dismiss. The trial court entered an order dismissing the due process claim, based on waiver, but allowed the ineffective assistance of counsel claim to proceed. At the third stage evidentiary hearing, the trial court denied the petition, finding that trial counsel was “not deficient in any respect.” Id. at ¶ 8.

Quickle appealed, arguing that he was denied reasonable assistance of post-conviction counsel. The court agreed and remanded the case to the trial court with directions that new post-conviction counsel be appointed and be allowed to re-plead the due process claim. On remand, an amended petition was filed, and the claim was dismissed (and affirmed by this court) at a third-stage evidentiary hearing. Id. at ¶ 10.

A year later, Quickle filed a motion for leave to file a successive post-conviction petition, alleging that he was denied reasonable assistance of appellate counsel. This was summarily denied, and the appellate court affirmed. Id. at ¶ 11. Quickle then filed a “Petition to Vacate Void Sentences” pursuant to section 2-1401 of the Code of Civil Procedure. Following a motion to dismiss by the State, the petition was dismissed by the trial court. After an additional unsuccessful attempt at filing a petition for relief from judgment, Quickle filed a motion for leave to file his second successive post-conviction petition, alleging his actual innocence of intentional murder under People v. Smith, 233 Ill. 2d 1 (2009). The motion was denied, and this appeal followed. Id. at ¶ 13.

The appellate court noted that under the Post-Conviction Hearing Act, there are two bases upon which the bar against successive proceedings may be relaxed: 1) when a petitioner can establish “cause and prejudice” for failure to raise the claim earlier, and 2) when a petitioner shows “actual innocence,” which is asserted by appellant in this instance. Id. at ¶ 17. In support of an actual innocence claim, evidence must be 1) newly discovered, (2) material and not merely cumulative, and 3) of such conclusive character that it would probably change the result on retrial. Id. at ¶ 18.

The court further explained that “actual innocence” means “total vindication or exoneration” and an “acquittal alone is insufficient to prove actual innocence. Id. at ¶ 19. In Smith, the Illinois Supreme Court held that when a defendant charged with intentional murder, knowing murder, and felony murder is denied his request for separate verdict forms and is found guilty of murder by a general verdict, for purposes of sentencing, the guilty verdict must be interpreted as a finding of guilty on the felony murder charge only. Id. at ¶ 21. Moreover, the supreme court has held that a trial courts’ error in refusing a defendant’s request for separate verdict forms requires that a general guilty verdict of first-degree murder be viewed as “an acquittal on the counts of intentional and knowing murder.”

Quickle argued that he fell within the “actual innocence’ exception for successive post-conviction petitions, contending that, pursuant to Smith and Bailey, the general guilty verdict entered against him must be construed as an acquittal of knowing and intentional murder, making him innocent of those types of murder. Id. at ¶ 22. However, the court determined that Quickle had failed to establish “actual innocence” because, as noted by the court’s review of Smith and Bailey, acquittal alone is insufficient to prove actual innocence. Id. at ¶ 23. The court agreed that the trial court erred by denying his request for separate verdict forms, yet determined that the court’s errors resulted in legal innocence, not factual innocence, of intentional and knowing murder. Id. at ¶ 24. As such, the court affirmed the judgment of the trial court.

Order denying motion for leave to file successive petition was vacated and defendant received new sentencing hearing after receiving de facto life sentence

The appellant in People v. Paige, 2019 IL App (1st) 161563 appealed the trial court’s order denying him leave to file a successive post-conviction petition, arguing that his 50-year prison sentence, imposed for a crime that the defendant committed when he was 16 years old, was unconstitutional. The appellate court reversed the decision of the circuit court and remanded for a new sentencing hearing.

Melvin Paige was charged and convicted of first-degree murder, home invasion, and residential burglary when he was 16 years old. Id. at ¶ 5. Following the commission of these offenses, Paige went to the police station and turned himself in, stating that he “could not sleep because of what he had done” and “wanted to come strong and to stand up for having committed a murder.” Id. at ¶ 11. Paige and his mother were present during a subsequent interview with the ASA, Mary Beth Kinnerk. During the interview with the ASA, appellant stated “substantially the same information as his statement to Sergeant Vargas,” whom he initially confessed to. Id. at ¶ 12. Evidence was presented that Paige was enrolled in a special education program for students with learning disabilities, that his IQ of 78 fell within the borderline range of intellectual potential, and that he suffered from a substance-induced mood disorder with depressive and psychotic features, in addition to a conduct disorder. Id. at ¶ 13.

At sentencing, the State presented victim impact statements from the victim’s son and daughter-in-law, as well as a presentence investigative report (PSI) establishing that Paige had been arrested for a curfew violation when he was 14 years old and completed a year of probation. Id. at ¶ 14. In mitigation, a forensic psychiatrist testified to Paige’s cognitive challenges and his predisposition towards impulsive, poor decision-making. Id. at ¶ 15-16. The psychiatrist also testified as to Paige’s rehabilitative potential and likelihood of success through counseling. Id. at ¶ 16. Paige’s grandmother testified to the effects of the sudden death of Paige’s stepfather, when he was 13 years old, and how that “changed” him. Id. at ¶ 17.

In imposing sentence, the court took into consideration the Paige’s personal circumstances, noting “this has not been an easy case,” and acknowledged the challenges of both Paige and his families’ life. The court considered Paige’s age at the time of the offense and at trial and stated that “defendant’s actions personified really the sum of all fears for homeowners. That is to die at the hands of a home invader.” Id. at ¶ 22. Ultimately, the trial court sentenced Paige to 50 years’ imprisonment for the first-degree murder charge, 25 years for home invasion to be served concurrently, and 15 years for residential burglary, to be served concurrently with the murder sentence but consecutive to the home invasion sentence. Id. at ¶ 23.

The appellate court affirmed the convictions for first degree murder and home invasion but vacated his conviction for residential burglary. Id. at ¶ 24. Shortly thereafter, appellant filed a pro se postconviction petition alleging that the (1) the trial court improperly considered multiple victim impact statements and (2) trial and appellate counsel were ineffective for failing to object and raise this issue. The petition was summarily dismissed by the court. Id. at ¶ 25. Paige filed a subsequent pro se motion for leave to file a successive post-conviction petition, alleging that his 50-year sentence was a de facto life sentence that violated Miller. Id. at ¶ 26. The motion argued for a new sentencing hearing, which the circuit court denied, stating that Paige’s sentence was not a de facto life sentence. This appeal followed.

On appeal, Paige contended that the circuit court erred in denying him leave to file a successive post-conviction petition where he established cause-and-prejudice. After Paige filed his initial post-conviction petition, the United States Supreme Court issued Miller, in which it held that the eighth amendment forbids a mandatory sentence of life in prison for juvenile offenders whose crimes reflect “unfortunate yet transient immaturity.” Id. at ¶ 30. Paige argued that he had shown cause-and-prejudice where cases decided after his initial petition found such sentences unconstitutional.

The appellate court agreed that Paige had established “cause” based on the timeline of his filing. To establish prejudice, the court held that appellant must have demonstrated a violation of Miller’s substantive rule in the imposition of his sentence. Id. at ¶ 31. The court acknowledged that while Paige’s sentence was not mandatory, the Illinois supreme court held that Miller also applies to discretionary sentences, and recently, in People v. Buffer, 2019 IL 122327, determined that sentences in excess of 40 years constitute de facto life sentences. Id. at ¶ 31. Therefore, the court held that Paige’s sentence of 50 years’ imprisonment for an offense committed as a 16-year-old was a de facto life sentence subject to Miller’s substantive rule.

In order to prevail on his Miller claim, the court stated that Paige was required to demonstrate that the sentencing court’s failed to consider his youth and its attendant characteristics before imposing his sentence. Id. at ¶ 32. The court noted that the record reflected evidence was presented on the potential for Paige’s rehabilitation, which included testimony on the rehabilitative potential, via counseling and drug treatment, for both Paige’s drug abuse problem and personality disorder. Id. at ¶ 39. The appellate court also noted that the trial court failed to “fully consider [Paige’s] potential for rehabilitation” in sentencing. As such, the court held that the “imposition of a life sentence on a juvenile defendant was unconstitutional.” Id. at ¶ 40. The sentence was vacated by the court and remanded to determine whether his crime reflected “permanent incorrigibility” or the “unfortunate yet transient immaturity” of youth.

The Appellate Court of Illinois First District reversed the judgement of the Circuit Court of Cook County and remanded for a new sentencing hearing.