First District holds that adult cannot rely on Miller or Proportionate Penalties Clause to argue de facto life sentence

The appellant in People v. Handy, 2019 IL App (1st) 170213 appealed the trial court’s decision denying him leave to file a successive post-conviction petition, arguing that he met the cause-and-prejudice test. The First District ultimately affirmed the decision of the circuit court.

Dante Handy was convicted of armed robbery, home invasion, residential burglary, aggravated battery of a senior citizen, kidnapping, aggravated criminal sexual assault, and possession of a stolen motor vehicle, for which he was sentenced to  four consecutive 30-year prison terms. Handy was 18 ½ years old when he committed the crimes. As a result of violations of the single subject rule under the sentencing code, the sentence was converted to a 60-year term of imprisonment, with eligibility for mandatory supervised release at 78 ½ years. Id. at ¶ 1-4.

At trial, Handy testified that he did not ever sexually assault the victim, did not know the co-defendants had planned a robbery, did not intend to kidnap anyone, did not have a gun, and someone other than Handy held a gun to the homeowner’s head. Id. at ¶ 13. Handy testified that he fled from the co-defendants and was warned to keep his mouth closed. Handy further testified that after being arrested, the detective who questioned him threatened him, shoved him back against the mirror in the interrogation room, and pulled his braids. Handy’s testimony conflicted with all evidence and previous testimony.

At sentencing, the victims spoke in aggravation and the State argued that the defendants lacked any rehabilitative potential and had slept, laughed or joked during the court proceedings as if the matter was no big deal. Id. at ¶17. Counsel argued that Handy was less culpable than the co-defendants because of his expressed reluctance, limited participation in the sexual assault, and stated intention to kill himself. Id. at ¶ 18.

On direct appeal, Handy argued that his sentence was excessive because the court was unduly influenced by the media attention and failed to consider his rehabilitative potential based on his individual circumstances, which included the absence of an extensive criminal record, beatings from gang members and expressed remorse. Id. at ¶ 20. The sentence was ultimately converted due to a violation of the single subject rule.

In his initial post-conviction petition, Handy argued that appellate counsel failed to argue that his sentence was disproportionate and excessive in light of his young age, lack of criminal history, and rehabilitative potential. Id. at ¶ 21. The appellate court affirmed. Eight years later, Handy moved the circuit court for leave to file a successive post-conviction petition, which argued that he was deprived of due process because the truth-in-sentencing law under which his sentence was imposed was an unconstitutional statutory scheme. The motion was denied. Id. at ¶ 22.

Five years following that decision, Handy moved the circuit court to file the successive post-conviction petition at issue in this appeal. Handy’s pro se petition argued that his 60-year prison sentence was unconstitutional as applied to him under the Eighth Amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. Id. at ¶ 23. Handy argued the sentence was a de facto life sentence without the possibility of parole and that the trial court failed to consider the special circumstances of his youth.

As to the “cause and prejudice test” to obtain leave to file his petition, he argued that (1) the law concerning the imposition of lengthy sentences on juveniles changed substantially after his 2003 post-conviction petition as a result of the recent decisions of Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016), Miller v. Alabama, 567 U.S. 460 (2012), Graham v. Florida, 560 U.S. 48 (2010), and People v. Davis, 2014 IL 115595, and (2) there was a reasonable probability that he would have received a shorter sentence if the trial court had correctly understood and applied the Eighth Amendment of the United States Constitution at his sentencing hearing. Id. at ¶ 23. The court denied leave to file a successive petition. This appeal followed.

The denial of Handy’s motion to file for leave to file a successive post-conviction petition was reviewed de novo. The court noted that to meet the cause-and-prejudice requirements “a defendant seeking leave to file a successive petition must submit enough in the way of pleadings and documentation to allow a circuit court to make an independent determination on the legal question of whether adequate facts have been alleged for a prima facie showing of cause and prejudice.” Id. at ¶ 28. Further, the court noted, leave of court to file a successive postconviction petition should be denied 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. Id. at ¶ 30.

As to cause-and-prejudice, Handy argued that he made the requisite showings because (1) the new constitutional rule of Miller applies retroactively to his sentence, and (2) a de facto life sentence for a youth in any case other than homicide is categorically barred under Graham. Id. at ¶ 31. Handy acknowledged that at the time of the offense, at 18 ½ years old, he was not technically a juvenile, but he nevertheless argued that Eighth Amendment protections afforded to juveniles under Miller should be extended to him. Id. at ¶ 37.

The Illinois Supreme Court drew a line at the age of 18, meaning that Miller protections do not extend to anyone who was 18 years old or older at the time of offense. Thus, the Handy’s Eighth Amendment challenge was meritless. Id. at ¶ 37. The court also refused to extend Miller principles under the proportionate penalties’ clause to appellant, as the special circumstances that had authorized such an extension in House were not present in this matter. Id. at ¶ 30.

Ultimately, while the court “recognize[d] that [appellant] is serving a harsh sentence” it concluded that he had not shown prejudice and that the trial court properly denied him leave to file his successive post-conviction petition. Id. at ¶ 42. The Appellate Court of Illinois First District affirmed the decision of the Circuit Court of Cook County.

 

 

 

 

 

Petitioner unable to show cause and prejudice for successive petition where he had raised a re-sentencing claim before

The appellant in People v. Morrow, 2019 IL App (1st) 161208, appealed the decision of the trial court denying him leave to file a successive post-conviction petition on grounds that his appellate counsel was ineffective for failing to ask the court to remand for re-sentencing following the vacation of his armed robbery conviction. The appellate court ultimately affirmed the trial court’s order.

Morrow was convicted of murder and armed robbery after a jury trial and sentenced to concurrent terms of 60 years imprisonment for murder and 20 years for armed robbery. On direct appeal, the appellate court affirmed appellant’s murder conviction and sentence but vacated his armed robbery conviction and sentence; finding that the State had failed to prove beyond a reasonable doubt that defendant had any intent to rob the victim. Id. at ¶ 18.

Morrow then filed a post-conviction petition, which was dismissed by the court as frivolous and patently without merit. Id at ¶ 19. Morrow appealed, and the trial court’s decision was affirmed. Following unsuccessful filings of a pro se habeas corpus petition, a pro se petition for relief from judgement pursuant to section 2-1401 of the Code of Civil Procedure, multiple motions for leave to file a successive petition, Morrow filed a third motion for leave to file a successive petition, which was the subject of this appeal. Id. at ¶ ¶ 33-37.

The third motion argued that the appellate court erred and that appellate counsel was ineffective for failing to ask the appellate court to remand for re-sentencing when it vacated his armed robbery conviction. Id. at ¶ 38. Further, the motion argued that Morrow’s post-conviction counsel was ineffective for failing to raise these claims before and that his sentence was excessive in light of his criminal history of misdemeanor offenses. Id. at ¶ 38. The trial court found that appellant had failed to establish either cause or prejudice and denied him leave to file the petition. Id. at ¶ 40. This appeal followed.

The court noted that in order to determine whether a successive petition can even be filed, the trial court must first determine whether the petition “(1) states a colorable claim of actual innocence or (2) establishes cause and prejudice.” Id. at ¶ 47. As Morrow exclusively allied cause and prejudice, that is the basis under which the court considered the claim. The court noted that “(u)nder the cause-and-prejudice test, a defendant must establish both (1) cause for his or her failure to raise the claim earlier and (2) prejudice stemming from his or her failure to do so.” The court noted that as “both prongs of the cause and prejudice test must be satisfied, we may uphold the denial of leave to file a claim if defendant has failed to establish either prong.” Id. at ¶¶ 55-57.

The appellate court rejected Morrow’s arguments because it determined that there was no evidence that the trial court was ever influenced by the armed robbery conviction or that appellate counsel’s alleged failure to raise the claim resulted in prejudice. Id. at ¶ 70. In support of this conclusion, the court pointed to statements in the record indicating that the trial court’s determination that the precipitating factor in the murder was defendant’s desire to protect his prostitutes, rather than a desire to rob the victim. Id. at ¶ 69.

The court also could not find cause excusing the failure to raise the claim earlier. Id. at ¶ 72. The court noted that appellate counsel did not seek a remand for re-sentencing, but also noted that Morrow could not possibly establish cause, as he had in fact raised the issue of re-sentencing in an earlier claim. Id. at ¶ 74. The court rejected subsequent arguments made by appellant that he could not have raised those claims earlier, as it would have required him to request his defense lawyer to argue his own ineffectiveness. Id. at ¶ 80.

Having found Morrow unable to establish cause and prejudice, and appellate court affirmed the trial court’s order denying Morrow leave to file a successive petition.

 

 

Appellate court reverses trial court’s denial of successive petition where defendant shows that trial counsel did not communicate plea offer to him

The appellant in People v. Ryburn, 2019 ILL App (4th) 170779, appealed the trial court’s decision dismissing his successive post-conviction petition at the second stage of proceedings. The Fourth District ultimately reversed the dismissal of the petition and remanded the case for further proceedings.

Ryburn was originally charged with four counts of aggravated criminal sexual assault, four counts of criminal sexual assault, and four counts of aggravate criminal sexual abuse for his actions on September 8, 1998. Ryburn pled guilty to three counts of aggravated criminal sexual assault, pursuant to a plea agreement, in exchange for the State’s dismissal of the remaining nine counts and other unrelated charges, recommendation of an aggregate sentence totaling no more than 60 years, and imposition of no fines. Id. at ¶ 4. Ryburn was sentenced to 20 years imprisonment for each of the three counts of aggravated criminal sexual assault, to be served consecutively. Id. at ¶ 5.

Shortly following sentencing, in December of 1999, Ryburn filed a motion to withdraw his guilty plea, alleging he did not enter it knowingly and voluntarily. The post-plea motion was denied by the trial court. Id. at ¶ 5. On direct appeal, Ryburn’s convictions and aggregate 60-year sentence were affirmed, despite arguments by appellant that his sentence was unconstitutional. Id. at ¶ 6. In June 2002, Ryburn filed a pro se petition for relief under the Post-Conviction Hearing Act, alleging he received ineffective assistance of counsel for the public defender’s failure to (a) raise a speedy trial claim, (b) call certain alibi witnesses, (c) present evidence to corroborate the alibi, (d) obtain police records to show the victim had a motive to fabricate her complaint, and (e) to decide to hold appellant fit to plead guilty.

Ryburn also alleged ineffective assistance of his appellate counsel for failing to raise the aforementioned issues on appeal. Id. at ¶ 7. The circuit court summarily dismissed the petition as frivolous and patently without merit, which was affirmed upon appeal. In July 2004, Ryburn once again unsuccessfully petitioned the court to set aside the guilty pleas for various claims of ineffective assistance of counsel and violation of supreme court rules. Id. at ¶ 8.

Between 2011 and 2015, Ryburn filed four motions for leave to file a successive post-conviction petitions; the first three were initially denied by the circuit court, then appealed, and dismissed upon appellant’s own motions. Id. at ¶ 10-12. The motions contained claims of actual innocence via involuntary intoxication, a breach of the plea agreement related to the mandatory three-year supervisory release term and claims that forensic evidence did not support the second and third counts of his indictment.

Ryburn’s fourth motion for leave, which was allowed by the court, alleged that the State had tendered a plea offer of 24 years’ imprisonment to the public defender’s office that was never conveyed to him, resulting in 36 more years in prison. Id. at ¶ 13. The petition proceeded through the first stage of postconviction proceedings to the second. At the second stage of proceedings, appointed counsel filed an amended post-conviction petition detailing the claims of ineffective assistance of counsel related to the failure to inform Ryburn of the plea offer and the failure of previous appellate counsel to raise the claim on appeal. Id. at ¶ 14. The court dismissed the amended post-conviction petition, claiming that Ryburn failed to show any objective factor that impeded his ability to raise his claim during the initial or subsequent post-conviction proceedings. Id. at ¶ 15. This appeal followed.

The appellate court determined the circuit court’s focus at the second stage of postconviction proceedings should be determining whether the petition’s allegations sufficiently show a constitutional infirmity that would necessitate relief under the Act. Id. at ¶ 22. The dismissal of a petition at the second stage of proceedings is only warranted when the allegations in the petition fail to make a substantial showing of a constitutional violation. Id at ¶ 22.

The appellate court disagreed with and rejected the State’s argument that the word “trial” in the definition of prejudice precludes a defendant who pleaded guilty from filing a successive post-conviction petition, on the grounds that both legislative intent and state supreme court rulings had indicated as much. Id. at ¶ 28. On appeal, Ryburn contended that his amended successive post-conviction petition made a substantial showing of both cause and prejudice, which was not challenged by the State. As such, the appellate court’s review of the substantiality of the petition’s cause and prejudice showings were conducted individually.

On cause, the court held that cause is shown by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings. Id. at ¶ 32. The court held that Ryburn’s ineffective assistance of counsel claims related to the plea offer made by the State in 1998, of which he was never informed by counsel or the State, was an objective, external factor that prevented appellant from raising the issue in the initial post-conviction petition. Id. at ¶ 34-36. The appellate court concluded that appellant did make a substantial showing of cause in this case.

On prejudice, the court held that prejudice is shown by “demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.” Id. at ¶ 38. To this end, Ryburn alleged that his trial counsel was ineffective for failing to inform him of the 1998 plea offer from the State.

Ineffective assistance of counsel claims are analyzed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Id. at ¶ 39. To obtain a reversal under Strickland, an appellant must prove (1) his counsel’s performance failed to meet an objective standard of competence and (2) counsel’s deficient performance resulted in prejudice to the defendant.

The appellate court concluded that because the United States Supreme Court has previously held that defense counsel has a duty to communicate formal offers from the prosecution to defendants (as required by the sixth amendment) and Ryburn provided sufficient evidence of defense counsel’s failure to inform him of the State’s plea offer, he made a substantial showing of the deficiency prong of the Strickland test. Id. at ¶ 41. The appellate court further determined that Ryburn’s petition made a substantial showing of all four elements of the prejudice prong of the Strickland test by demonstrating a reasonable probability that (1) he would have accepted the plea offer but for counsel’s deficient advice, (2) the plea would have been entered without the State canceling it, (3) the circuit court would have accepted the plea bargain, and (4) “the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Id. at ¶ 42.

Ultimately, the appellate court concluded that Ryburn made a substantial showing of both cause and prejudice and agreed with him that the circuit court erred by granting the State’s motion to dismiss. Id. at ¶ 43. As a result, the Fourth District held that Ryburn’s successive post-conviction petition should advance to the third stage of proceedings for an evidentiary hearing and reversed the decision of the trial court dismissing his petition.

Appellate court holds that State improperly participated in post-conviction hearing but decided not to remand

The appellant in People v. Ames, 2019 IL App (4th) 170569 appealed the trial court’s order denying’s his second motion for leave to file a successive post-conviction petitio on the grounds that the circuit court erred by allowing the State to respond to the motion. Ultimately, the Appellate Court of Illinois Fourth District affirmed the decision of the Circuit Court of Sangamon County.

Ames was convicted of one count of home invasion and two counts of aggravated criminal sexual assault and sentenced to consecutive terms of 28 years of imprisonment for home invasion and 6 years each for aggravated criminal sexual assault. Id. at ¶ 3. On direct appeal, Ames alleged that: (1) evidence of another crime deprived him of a fair trial and (2) trial counsel rendered ineffective assistance by failing to object to prior inconsistent statements made by the victim. The Fourth District affirmed on direct appeal. Immediately following that decision, Ames unsuccessfully petitioned the supreme court for leave to appeal. Id. at ¶ 4.

In September 2005, Ames filed a pro se petition for post-conviction relief, raising numerous ineffective assistance of counsel claims related to both trial and appellate counsel’s performance, including trial counsel’s alleged failure to move for expert analysis of DNA and trial counsel’s refusal to allow Ames to testify at trial. Id. at ¶ 5. After advancing to the second stage of post-conviction proceedings, the circuit court granted the State’s motion to dismiss. On appeal, the appellate court affirmed the dismissal. Again, Ames unsuccessfully petitioned the supreme court for leave to appeal. Id. at ¶ 5.

In September 2012, Ames filed his first motion for leave to file a successive postconviction petition, which was subsequently denied by the circuit court. The circuit court permitted Ames to file an amended motion, which he did in January 2013, asserting, inter alia, that his aggravated criminal sexual assault sentences violated the proportionate penalty clause. Id. at ¶ 6. In May of 2013, following a hearing, the circuit court denied the motion; this denial was affirmed by the appellate court on appeal. Id. at ¶ 6.

In April 2016, Ames filed a second motion for leave to file a successive post-conviction petition. In the months following, the State filed a response asserting that the motion should be denied, which prompted Ames to file a supplement to the original motion. One week following the filing of the supplement to Ames’ motion, a hearing was held where the State was permitted to make arguments.

In December of 2016, Ames’ motion was denied by the court on the grounds Ames failed to establish cause for failing to raise the issues contained in the second motion in his initial post-conviction petition and failing to file an affidavit in support of his claims. Id. at ¶ 7. In July of 2017, a hearing to reconsider the motion was held, resulting in the motion being denied once again. This appeal followed.

The Post-Conviction Hearing Act provides that in order to obtain leave to file a successive post-conviction petition, a petitioner must demonstrate cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice stemming from that failure. Id. at ¶ 12-13. As such, the court considered whether or not appellant Ames made a prima facie showing of cause and prejudice in determining whether or not Ames should be granted leave to file the successive postconviction petition. Id. at ¶ 13.

The appellate court disagreed with assertions made by the State that their involvement in the “preliminary screening” process of cause and prejudice in the successive petition hearing was minimal and proper, holding, consistent with previous rulings by the Illinois Supreme Court in People v. Bailey, 2017 IL 121450, that the State should not have been allowed to participate in any fashion. Id. at ¶ 14. The court’s focus thus became what relief should be afforded to Ames. Namely, whether or not the appellate court had the authority to affirm or deny on any basis found in the record or was required to remand for new proceedings.

After an extensive review of Bailey and subsequent appellate court cases, the appellate court agreed with a ruling in People v. Conway, 2019 IL App (2d) 170196, which held that the appellate court may choose for the sake of judicial economy to review a circuit court’s denial of a motion for leave to file a successive post-conviction petition when the State has been involved. Id. at ¶ 23.

The appellate court held that its review was “more appropriate than remanding the cause to the circuit court.” Id. at ¶ 23. To that end, the appellate court determined that Ames had failed to make a prima facie showing of the cause element for raising conflicts in testimony and evidence that were in the record at the time of his initial post-conviction petition, citing inapplicable Supreme Court cases as reason for delay in bringing his claim, and raising issues regarding DNA testing that had previously been raised. Id. at ¶ 24.

As a result, the Appellate Court of Illinois Fourth District affirmed the decision of the Circuit Court of Sangamon County. Id. at ¶ 26.

 

Denial of leave to file successive petition reversed where day-for-day eligible 80-year sentence constituted de facto life sentence

The appellant in People v. Peacock, 2019 IL App (1st) 170308 appealed the trial court’s decision denying leave to file his successive post-conviction petition, on the grounds that his sentence constituted a de facto life sentence and violated the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. The Appellate Court of Illinois First Judicial District ultimately reversed and remanded the decision of the Circuit Court of Cook County for further proceedings.

Appellant Taki Peacock is currently service concurrent respective sentences of 80 years, 30 years, 30 years, and 30 years of imprisonment for convictions related to the 1995 first-degree murder, aggravated kidnapping, aggravated vehicular hijacking, and armed robbery of his victim, Rufus Taylor. At the time of offense, Peacock was 17 years old. Id. at ¶ 1.

On September 12, 2016, appellant filed a successive postconviction petition, in which he challenged the constitutionality of his 80-year sentence, arguing that it was an unconstitutional de facto life sentence pursuant to Miller v. Alabama, 567 U.S. 460 (2012). Appellant was denied leave by the circuit court to file his petition on October 12, 2016, ruling that the petition was untimely, and appellant had failed to file a motion for leave to file the petition. Id. at ¶ 2. This appeal followed.

On appeal, Peacock argued that he should have been permitted to file his petition because the 80-year sentence imposed on his conviction as a juvenile constitutes a de facto life sentence and thus violates the eighth amendment of the US Constitution and the proportionate penalties clause of the Illinois Constitution.  On appeal, Peacock acknowledged that he may qualify for day-to-day credit, and, accordingly, will be required to serve at least 40 years (50%) of his sentence. Peacock argued that his de facto life sentence still triggers the protections of Miller and requires a sentencing court to consider his youth and attendant characteristics in sentencing. Id. at ¶ 3. Peacock argued that the circuit court erred by not doing so and, as a result, thecase should be remanded for a new sentencing hearing.

In response, the State argued that leave was properly denied, and appellant’s sentence does not constitute a de facto life sentence because he was only “likely [to] serve 40 years.” The State points to appellant’s IDOC projected discharge date of August 31, 2035, exactly 40 years from the date he went into custody, as evidence of this fact. Id. at ¶ 4.

This appeal had previously been stayed pending an Illinois Supreme Court decision in People v. Buffer, 2019 IL 122327. Id. at ¶ 5. The Supreme Court has since decided Buffer, allowing for the stay on this case to be lifted.

In Buffer, the Supreme Court held that “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment.” However, any sentence in excess of 40 years does. Id. at ¶ 11. This determination was made in accordance with previous holdings from Miller, which stated that in order to prevail in similar claims, “a defendant sentenced for an offense committed while a juvenile must show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence.” Id. at ¶ 7. Following the decision in Buffer, both parties in this appeal were permitted to file supplemental briefs to address the impact of the ruling.

In his brief, Peacock argued that the ruling in Buffer supports his previously stated arguments regarding his sentence. Peacock acknowledged that while there is some confusion regarding explicit 40 year sentences (namely whether or not a sentence of exactly 40 years can be considered a de facto life sentence or not), his sentence should be considered in excess of 40 years because it is not guaranteed that he will serve only 40 years of his sentence, as his sentence is “entirely dependent upon the condition that he will not forfeit even one day one day of good conduct credit.” Id. at ¶ 14.

In its brief, the State contended that appellant’s sentence, having recently had his projected release date shortened by 15 days to August 16, 2035, is now only “39 years, 11 months and 16 days in prison,” which under Buffer cannot be constitute a de facto life sentence. Id. at ¶ 15.

As a result of the Supreme Court’s decision in Buffer, however, the Appellate Court held that Peacock’s 80-year sentence in this case did constitute a de facto life sentence. Id. at ¶ 17. The Court expanded that they need not make a determination regarding de facto life sentences on the dividing line of 40 years (the State’s argument) because the sentence imposed was an 80-year sentence with the “mere possibility of release after 40 years,” not a 40-year sentence. Id. at ¶ 19. The Court also agreed with Peacock’s argument that he’s not guaranteed receipt of day-for-day credit.

The Appellate Court also concluded that the trial court erred in failing to consider Peacock’s youth and his attendant characteristics in imposing his sentence, despite the State’s assertions to the contrary. Id. at ¶ 21. The court stated, in accordance with the Supreme Court, that the attendant characteristics that must be considered at sentencing in order to justify a de facto life sentence are “the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family and home environment; (3) the juvenile defendant’s degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Id. at ¶ 22. The Appellate Court held that the trial court’s mere awareness of Peacock’s age and consideration of the PSI was not “the equivalent to a full consideration of those special characteristics” and cannot be considered evidence of such. Id. at ¶ 23-24.

Ultimately, the appellate court held that Peacock’s sentence violated the eighth amendment, vacated the sentence as unconstitutional, reversed the decision of the Circuit Court of Cook County, and remanded for a new sentencing hearing. Id. at ¶ 24-26.

Court’s order denying motion for leave to file successive petition reversed where trial court failed to consider youthful characteristics of defendant at sentencing

The appellant in People v. Parker, 2019 IL App (5th) 150192 appealed the decision of the Circuit Court of Washington County denying his motion for leave to file successive post-conviction petition.

Leonard Parker was charged with four counts of first degree murder based on a theory of accountability related to the stabbing of a victim by a co-defendant, during the course of a robbery and residential burglary in September of 2000. Parker was 16 years old at the time of arrest. Id. at ¶ 2. Shortly thereafter, Parker entered into a negotiated plea agreement in which he pled guilty to one count of first-degree murder in exchange for the dismissal of the other three charges and a sentence not to exceed 50 years imprisonment. Parker was sentenced to 35 years imprisonment and ordered to pay a fine of $10,000 at his December 2000 sentencing hearing. Id. at ¶ 4.

In January of 2001, Parker filed a motion for leave to withdraw his guilty plea, arguing that he entered his guilty plea without sufficient understanding and contemplation of the serious nature of the consequences, was under pressure from his parents, and had insufficient discussions with his counsel. This motion was accompanied by a motion to reconsider the sentence, arguing that his sentence was excessive. Parker later withdrew the motion after being admonished that moving forward would result in a criminal trial for all four counts of first-degree murder. Id. at ¶ 5. The court denied the motion to reconsidering his sentence, noting that the withdrawal of his motion to withdraw his guilty plea forbid him from challenging his sentence. Id. at ¶ 6.

In 2010, Parker filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel based on: newly discovered evidence that police had ignored his parents’ request not to question him until they were present; that his counsel did not inquire as to whether he was questioned outside his parents’ presence; that he was coerced into entering a guilty plea by his counsel and parents (where his plea was based on a misinterpretation of the sentencing range); and that he was coerced by counsel to withdraw his motion to withdraw his guilty plea. Id. at ¶ 7. The petition advanced to second stage proceedings, where the State successfully moved to dismiss the petition based on the fact that it was filed beyond the time allowed under the Act. The dismissal was affirmed upon appeal. Id. at ¶ 8.

In 2015, Parker filed a pro se motion for leave to file a successive petition for post-conviction relief, which argued that his sentence amounted to a de facto life sentence in violation of the eighth amendment of the United States Constitution, citing Miller v. Alabama, 567 U.S. 460 (2012). Id. at ¶ 9. The trial court denied the motion, challenging Parker’s assertion that 35 years amounted to a de facto life sentence and argued that Miller only applied to mandatory life sentences. This appeal followed.

In its analysis of Miller, the Appellate Court noted that in the period between filing Parker’s appeal and their review of the case, the Illinois Supreme Court had extended the holding of Miller in People v. Holman, 2017 IL 120655, which established “that life sentences for juvenile defendants, whether mandatory or discretionary, were disproportionate and violated the eighth amendment unless the trial court considered the offender’s youth and its attendant circumstances.” Id. at ¶ 13.

The Court also noted that in the subsequent cases of Reyes and Buffer, the Illinois Supreme Court held that “sentencing a juvenile offender to a mandatory term of years that was the functional equivalent of life without the possibility of parole (de facto life sentence) constituted cruel and unusual punishment in violation of the eighth amendment” and “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment because it provides some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at ¶ 14-15.

The appellate court held that Parker demonstrated cause because “Reyes and Buffer had not been decided when he filed his initial post-conviction petition and, thus, was not available to” him at the time of filing. Moreover, the Court ruled that although his sentence was below the line drawn in Buffer and is not a de facto life sentence, Parker still demonstrated prejudice, in that he showed a reasonable probability that he would have achieved a better result if the trial court had correctly applied the constitutional limitations of juvenile sentences (considering that Buffer applies retroactively). Id. at ¶ 18.

Ultimately, the appellate court held that retroactive application of Buffer constitutes cause and prejudice for purposes of being granted leave to file a successive post-conviction petition, reversed the decision of the Circuit Court of Washington County denying Parker’s motion for leave, and remanded for further proceedings. Id. at ¶ 18.

First District reverses order denying successive petition raising actual innocence claim

The appellant in People v. Galvan, 2019 IL App (1st) 170150, appealed the decision of the Circuit Court of Cook County to dismiss his third-stage successive post-conviction petition on the grounds that the trial court misapplied the standard and made improper findings in regard to the petitioner’s actual innocence claims and failed to address several arguments related to Galvan’s denial of due process claims. The Appellate Court of Illinois First Judicial District reviewed and ultimately reversed the judgment of the trial court, granted appellant’s third-stage successive postconviction petition, and remanded.

Following conviction at a jury trial for aggravated arson and first-degree murder, appellant, John Galvan was sentenced to natural life in prison without parole. Id. at ¶ 4. Galvan was 18 years old at the outset of his jury trial. Galvan’s arrest, prosecution and subsequent conviction were the byproduct of eyewitness testimony from an alleged witness, Michael Almendarez, obtained after a 10-to-12 hour interrogation by detectives James Hanrahan and Victor Switski. Id. at ¶ 5-6. Almendarez’s testimony was the subject of a denied pre-trial motion to suppress by Galvan’s counsel, which alleged the confession was forced by detectives and materially false. Id. at ¶ 5.

At trial, Galvan testified that his confession, signed following his initial interview with Detectives James Hanrahan and Victor Switski, was coerced by Detective Switski, following threats of the “death penalty,” an instruction to blame one of his co-defendants, threats of physical assault, and a promise of release. Id. at ¶12. During closing arguments at trial, defense counsel argued that shortly before the fire, there was a “young woman in the street threatening to burn down [the] building.” Id. at ¶ 13. Galvan was found guilty of all counts by the jury. Id. at ¶ 14.

On direct appeal, appellant’s conviction was upheld by the appellate court. Id. at ¶ 16. Galvan’s subsequent post-conviction petition, which alleged that the eyewitnesses were high on the night of the fire and would not have been able to identify appellant, was dismissed by the circuit court and upheld on appeal. Id. at ¶ 16. Between 2001 and 2004, appellant filed a pro se post-conviction petition (in 2001) and three supplemental petitions (in March 2003, February 2004, and October 2004), which included claims of actual innocence based on a newly executed affidavit by Partida, stating that appellant was not present the night of the arson and murder. Id. at ¶ 17.

At the third-stage evidentiary hearing, Partida testified to the contents of the affidavit, provided his eyewitness account of the fire, and detailed the attempts by detectives to get him to incriminate individuals (Galvan and codefendants) who he had not seen at the location of the fire. Partida also testified to factual innacuracies and exclusions in the two reports produced following his interviews with detectives. Id. at ¶ 19-24. A witness by the name of Mary Jane Borys testified that Lisa Velez, a tenant of the building which burned down in the arson, was affiliated with the Latin Kings gang and had expressed her intent to burn down the building with the victims inside. Id. at ¶ 26. Borys testified to multiple interviews with detectives where she informed them of statements made by Velez. Id. at ¶ 28.

Galvan provided further testimony regarding his coerced confession, detailing threats of violence, actual physical violence and the detective’s statement that he would “shoot [him] himself” if he did not confess. Id. at ¶ 36. Galvan also testified to an interaction with Assistant State’s Attorney (ASA) Joel Leighton, who asked him to corroborate the confession and left the room when he would not. Following an additional alleged beating by Detective Switski, ASA Leighton returned to the room and Galvan confirmed the accuracy of the confession. Id. at ¶ 39.

Almendarez testified to similar treatment by Detectives Switski and Hanrahan. Id. at ¶ 42. Almendarez testified that “Detective Switzki’s threats and abuse resulted in him signing a statement implicating [Galvan] and [codefendant] because he believed he could go him if he did so.” Id. at ¶ 43. Multiple other witnesses testified, in great detail, to signing false confessions after being interrogated and physically abused (in similar fashion to Galvan’s alleged abuse) by Detective Switski. Id. at ¶ 44-52. Switski denied any recollection of the events pertaining to the testimony of Galvan and all other witnesses and ASA Leighton denied seeing injuries on Galvan or the codefendants. Id. at ¶ 53-54. A fire and explosion expert, Dr. Russell Ogle, testified that there was no evidence that the fire started at the porch, as stated in the police report of the arson, nor could the fire have been started by a cigarette. Dr. Ogle testified that the most likely place for the fire to have begun was the stairwell. Id. at ¶ 55.

The trial court found Partida’s testimony to be “untruthful and not credible” based on prior affidavits; found that the outcome of the case would not have been different if the jury had heard Partida’s testimony (preventing a finding of ineffective assistance of counsel); found that any testimony regarding Velez’s expressed intent to burn down the building was improper hearsay and was not “newly discovered evidence”; and, concluded that Galvan failed to meet the necessary burden of proof to entitle him to post-conviction relief. Id. at ¶ 56-58. The trial court observed that all witnesses had, at one point, been convicted of murder (despite several of these convictions being overturned on appeal). Id. at ¶ 59. Galvan’s post-conviction petition was subsequently denied and became the subject of this appeal. Id. at ¶ 60.

The First District noted that “at a third-stage evidentiary hearing, the trial court acts as fact finder, determining witness credibility and weight to be given particular testimony and evidence” and should not re-decide the petitioner’s guilt.  Id. at ¶ 65, 67. The appellate court’s responsibility at this stage is to determine whether the circuit court’s denial of a post-conviction petition following an evidentiary hearing is manifestly erroneous, which is defined as “error which is clearly evident, plain, and indisputable.” Id. at ¶ 65.

As such, in their analysis of the appeal, the appellate court outlined the relevant questions in determining whether the trial court’s denial was manifestly erroneous: “(1) whether any of the officers who interrogated petitioner may have participated in systematic and methodical interrogation abuse and (2) whether those officers’ credibility at petitioner’s suppression hearing or at trial might have been impeached as a result.” Id. at ¶ 68. The appellate court found that the credibility findings made by the trial court, listed as justification for their denial, were not relevant to the issue of whether Switski’s credibility at the suppression hearing might have been impeached. In fact, the court found that “those officers’ credibility at petitioner’s suppression hearing or at trial might have been impeached as a result.” Id. at ¶ 74. Further, the appellate court found that “without petitioner’s confession, the State’s case was nonexistent.” Id. at ¶ 74.

Additionally, the appellate court determined there were “several other bases for which we believe the trial court could have granted petitioner’s successive postconviction petition following the third-stage evidentiary hearing,” most compelling of which was the newly discovered evidence regarding Velez’s motive. Id. at ¶ 75. The court found many of Galvan’s additional claims for postconviction relief compelling. As a result, the appellate court found the trial court’s conclusion manifestly erroneous and reversed and remanded with directions that Galvan receive a new suppression hearing and, if necessary, a new trial. Id. at ¶ 79.