THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. TRAVIS ASHBY, Defendant-Appellant.
No. 1-18-0190
Appellate Court of Illinois, First Judicial District
September 30, 2020
2020 IL App (1st) 180190-U
Honorable Charles P. Burns, Judge Presiding.
THIRD DIVISION
PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Ellis concurred in the judgment.
ORDER
¶ 1 Held: The judgment of the circuit court of Cook County summarily dismissing defendant‘s postconviction petition is reversed; defendant‘s postconviction petition which alleged his de facto life sentence violated the eighth amendment of the United States Constitution and the propоrtional penalties clause of the Illinois Constitution was not based on an indisputably meritless legal theory or fanciful factual allegations.
¶ 2 Defendant appeals from the trial court‘s first stage summary dismissal of his pro se postconviction petition filed pursuant to section
¶ 3 BACKGROUND
¶ 4 Defendant, Travis Ashby, appeals the trial court‘s judgment summarily dismissing his initial petition for postconviction relief. Defendant was found guilty by a jury of first-degree murder on an accountability theory and for personally discharging a firearm. Defendant was sentenced to 48 years’ imprisonment, 28 years for murder and an additional 20 years for personally discharging a firearm. On March 30, 2007, defendant‘s conviction and sentence were affirmed on direct appeal in which defendant alleged errors unrelated to the instant appeal (People v. Ashby, No. 1-04-0087 (2007) (unpublished order under
¶ 5 Defendant‘s Trial and Sentencing Hearing
¶ 6 The relevant evidence and details from defendant‘s trial and sentencing hearing are as follows. In the early morning of January 8, 2000, defendant, along with Antolito Jones and Melvin Jones murdered the victim, Jerry Green. Defendant, Antolito, and Melvin were members of the “Third Ward” faction of the Gangster Disciples. Though the victim was not a gang member, the State‘s theory of the case posited that the viсtim was killed as part of an internal dispute between the Third Ward and the “No Limits” faction of the Gangster Disciples. Defendant, who was born on April 14, 1977, was 22 years old at the time of the murder.
¶ 7 Defendant gave several different statements to police concerning the events that transpired on January 8, 2000, but ultimately admitted he supplied Antolito‘s gun which was
¶ 8 In support of the defense‘s theory that defendant‘s statements to police were given because he had been isolated for over 36 hours and because of his suggestibility and cognitive limitations, Dr. Antoinette Kavanaugh, a clinical psychologist, was called as an expert witness. Dr. Kavanaugh opined that defendant was suggestible, had significantly below average intelligenсe, and was cognitively limited. She did not believe defendant was malingering. The State responded by providing expert testimony from Dr. Timothy Cummings, a forensic clinical services psychologist, who testified there was no evidence defendant was suggestible, and was, instead malingering.
¶ 9 At defendant‘s sentencing hearing, the trial court addressed mitigating and aggravating factors including defendant‘s “borderline intellectual functioning” as opined by Drs. Kavanaugh and Cummings; his criminal background consisting of three prior felony convictions for nonviolent offenses; his family ties; and his gang involvement. In sentencing defendant to 28 years for murder and an additional 20 years for personally discharging a firearm, the trial court found “the most important factor about [defendant‘s] involvement” in the murder was “that he supplied not just the murder weapon, but three guns; one for himself and one for each of the other two individuals, who, in fact, shot and killed the victim in this case.” Thе court also found defendant was not “merely accountable” as argued by defense counsel but was “majorly accountable and involved” in the case. Aside from referring to defendant as a young man, the trial court did not mention defendant‘s age in its explanation of defendants 48-year sentence.
¶ 11 Postconviction Petition
¶ 12 On October 25, 2017, defendant filed a pro se postconviction petition pursuant to section
¶ 13 On December 15, 2017, the trial court entered a judgment summarily dismissing defendant‘s postconviction petition finding defendant‘s claims were “frivolоus and patently without merit.”
¶ 14 Defendant timely appealed. This appeal followed.
¶ 15 ANALYSIS
¶ 16 On appeal, defendant argues the trial court erred in summarily dismissing his post-conviction petition. Defendant acknowledges he was not a juvenile at the time of his offense but argues his 48-year sentence is a de facto life sentence and thus the protections afforded juveniles in sentencing under Miller v. Alabama, 567 U.S. 460 (2012), should be extended to him. Specifically, defendant argues the sentencing court was required to consider the transient qualities of youth and their enhanced amenability to rehabilitation under the eighth amendment and rehabilitation clause of
¶ 18 Post-Conviction Hearing Act
¶ 19 The
“For cases not involving the death penalty, the Act sets forth a three-stage process for hearing a petitioner‘s constitutional claims. [Citation.] At the first stage, the circuit court independently reviews the petition and determines whether the petition is frivolous or patently without merit. [Citations.] A petition may be summarily dismissed at the first stage as frivolous and patently without merit ‘only if the petition has no arguable basis either in law or in fact.’ [Citation.] A petition lacks an arguable basis in law or fact if it is based on ‘an indisputably meritless legal theory or a fanciful factual allegation.’ [Citation.] Because most petitions at the first stage are drafted by defendants with little legal knowledge or training, a defendant need only present a limited amount of detail in the petition to survive summary dismissal by thе circuit court. [Citation.] That is, defendants only need to set forth the ‘gist’ of an arguably constitutional claim to meet the relatively low factual threshold to satisfy the first stage under the Act. [Citation.]” Patterson, 2018 IL App (1st) 160610, ¶ 15.
¶ 20 In first stage postconviction proceedings the defendant is not required to make “a substantial showing of a constitutional violation” nor is the defendant required to “demonstrate”
¶ 21 Eighth Amendment Constitutional Challenges Applicable to Juveniles
¶ 22 Having established defendant‘s burden at the first stage of postconviction proceedings, we turn to the history of caselaw which have paved the way for the constitutional challenges raisеd by defendant in his postconviction petition.
¶ 23 The eighth amendment prohibits “cruel and unusual punishments” and is applicable to the states through the fourteenth amendment.
“The eighth amendment‘s ban on excessive sanctions flows from the basic principle that criminal punishment should be graduated and proportioned to both the offender and the offense. [Citations.] To determine whether a punishment is so disproportionate as to be ‘cruel and unusuаl,’ a court must look beyond history to the evolving standards of decency that mark the progress of a maturing society.” Id.
¶ 24 Following a line of United States Supreme Court decisions applying the eighth amendment‘s ban on “cruel and unusual punishments” to juvenile sentences, the Court in Miller v. Alabama, 567 U.S. 460 (2012), held that the imposition of a mandatory sentence of life without the possibility of parole for a juvenile offender who commits murder without consideration of the defendant‘s youth аnd its attendant characteristics violates principles of proportionality and thus the eighth amendment‘s ban on cruel and unusual punishment. Id. at
¶ 25 Accordingly, Miller and Montgomery provide that before a juvenile offender may be sentenced to life imprisonment without parole, the trial court must consider the juvenile‘s “youth and its attendant characteristics” and find his or her conduct “showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond thе possibility of rehabilitation.” People v. Holman, 2017 IL 120655, ¶ 46. In conducting this analysis, the Court in Miller outlined a non-exclusive list of characteristics to be considered as follows:
“(1) 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., citing Miller, 567 U.S. at 477-78.
¶ 26 Miller Protections Extended to De Facto Life Sentences for Young Adults
¶ 27 In People v. Reyes, 2016 IL 119271, our supreme court extended Miller protections holding “that sentencing a juvenile offender to a mandatory term of years that is the functional equivalent of life without the possibility оf parole [, a de facto life sentence,] constitutes cruel and unusual punishment in violation of the eighth amendment.” Id. at ¶ 9. In Holman, our supreme court again extended Miller claims to include not just juvenile mandatory de facto life
¶ 28 Relevant to our analysis here, we further note Justice Burke‘s special concurrence in Buffer. There, Justice Burke stated what constitutes a de facto life sentence can be determined from a “calculation—it is when the defendant‘s age at the earliest projected time of release exceeds an incarcerated minor‘s average life expectancy.” Id. at ¶ 65 (Burke, J., specially concurring). Justice Burke further concluded the maximum sentence that should be imposed on juveniles is one that allows release at age 55 based on statistics for the average life expectancy of incarcerated individuals. See id. at ¶¶ 65-67.
¶ 29 Miller Protections Sought by Young Adults
¶ 30 Our Supreme Court in People v. Thompson, 2015 IL 118151, and People v. Harris, 2018 IL 121932, has determined that a young adult offender bringing an “as applied” challenge seeking Miller protections requires an evidentiary hearing. In Thompson, our supreme court was asked to determine whether the “defendant‘s as-applied [eighth amendment] constitutional
¶ 31 In Harris, our supreme court further opened the door for the extension of Miller protections to young adults under both the eighth amendment to the United States Constitution, (
“A party raising a facial challenge must establish that the statute is unconstitutional under any possible facts, while an as-applied challenge requires a showing that the statute is unconstitutional as it applies to the specific facts and circumstances of the challenging party. [Citations.]
All as-applied constitutional challenges are, by definition, dependent on the specific facts and circumstances of the person raising the challenge. Therefore, it is paramount that the record be sufficiently developed in terms of those facts and circumstances for purposes of appellate review. [Citations.] We have reiterated that:
A court is not capable of making an as-apрlied determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact. [Citation.] Without an evidentiary record, any finding that a statute is unconstitutional as-applied is premature. [Citations.]”
(Internal quotations marks omitted.) Id. at ¶¶ 38-39, 52-53.
¶ 32 With respect to the defendant‘s as-applied challenge under the proportionate penalties clause, the Harris court explained that because the defendant‘s as-applied claim was not raised in the trial сourt and he was a young adult such that ”Miller does not apply directly to his circumstances[,]“, the record needed to “be developed sufficiently to address defendant‘s claim
¶ 33 The court concluded the defendant‘s eighth amendment facial challenge contending that the protections for juveniles recognized in Miller should be extended to all young adults under the age of 21 also failed. Id. at ¶¶ 53-61. Here, the court stated:
“[F]or sentencing purposes, the age of 18 marks the present line between juveniles and adults. As an 18-year-old, defendant falls on the adult side of that line. Accordingly, defendant‘s facial challenge to his aggregate sentence under the eighth amendment necessarily fails.” Id. at ¶ 61.
¶ 34 While unequivocally closing the door on eighth amendment facial challenges based on Miller to young adults, we do not read Harris to foreclose an as-applied Miller challenge by a young adult offender. On this point, we note the Harris court distinguished the defendant‘s eighth amendment facial challenge from an as-applied eighth amendment challenge stating:
“As noted previously, facial and as-applied constitutional challenges are not interchangeable. An as-applied challengе requires a showing that the statute is unconstitutional as it applies to the challenging party‘s specific circumstances. [Citation.] In contrast, a facial challenge requires the challenging party to establish that the statute is unconstitutional under any possible set of facts. [Citation.]
Defendant‘s claim is a facial challenge. He does not rely on his particular circumstances in challenging his sentence under the eighth amendment, but rather contends that the eighth amendment protection for juveniles recognized in Miller should be extended to all young adults under the age of 21. *** To the extent that defendant may have intended to raise an as-applied challenge under the eighth amendment, that claim would fail for the same reason his challenge under the Illinois Constitution failed, because no evidentiary hearing was held and no findings of fact were entered on how Miller applies to him as a young adult.” Id. at ¶¶ 52-53.
¶ 35 We read our supreme cоurt‘s precedents to set out the following procedure for young adults raising a claim that Miller protections apply to them:
“(i) under Harris, a young adult defendant must plead, and ultimately prove, that his or her individual characteristics require the application of Miller;
(ii) if, and only if, the young adult makes this showing, then the trial court goes on to consider whether the initial sentencing hearing complied with Miller, ***; and
(iii) if the initial sentencing hearing was Miller-compliant, then the trial court can reject the defendant‘s claim ***; or if the initial sentencing hearing was not Miller-compliant, then the trial court should order resentencing.” People v. Ruiz, 2019 IL App (1st) 163145, ¶ 52.
¶ 36 Defendant‘s As-Applied Constitutional Challenges
¶ 38 Defendant here argues he has received a de facto life sentence stating “He will be 7[0] years of age at the completion of his sentence.” We note defendant‘s 48-year sentence is beyond the 40-year floor established in Buffer for juvenile de facto life sentences. See Buffer, 2019 IL 122327, ¶¶ 40-41. We also point to Justice Burke‘s special concurrence in Buffer explaining a de facto life sentence can be calculated by determining when “the defendant‘s age at the earliest projected time of release exceeds an incarcerated minor‘s average life expectancy” such that a maximum sentence imposed on juveniles would allow release at age 55 based on average life expectancy of incarcerated individuals statistics. Id. at ¶¶ 65-67. This suggested de facto life sentence calculation only gives further credence to defendant‘s challenge here where he would be incarcerated from age 22 through age 70.
¶ 39 Defendant‘s petition was summarily dismissed as being frivolous and patently without merit by thе trial court in first stage proceedings. Thus, on review, we are tasked with determining whether defendant‘s petition set forth a gist of an arguably constitutional claim not based on indisputably meritless legal theory or fanciful allegations. See Patterson, 2018 IL App (1st) 160610, ¶ 15. Here, we do not conclude the petition filed in this case is based on indisputably meritless legal theory or fanciful allegations.
¶ 40 The State argues this court “already rejected the precise claim [defendаnt] is making here in the case of People v. Handy, 2019 IL App (1st) 170213, and should now follow its prior
¶ 41 We find both defendant‘s constitutional claims have an arguable basis in fact and law. In his petition defendant outlines the evolution of and continued application of Miller protections which he argues should be afforded to him under both the eighth amendment and proportionate penalties clause to find his sentence unconstitutional.
¶ 42 While we agree with the State that defendant‘s mental health was considered, it is not clear that all of the Miller factors were considered. In fact, at sentencing, aside from referring to him as a young adult, the trial court made no mention of defendant‘s age and little emphasis was placed on this element during argument by counsel. Had the trial court held a hearing to specifically address the Miller factors, defendant contends he may have received a lesser sentence.
¶ 43 Accordingly, we conclude defendant, at this first stage where he is not required to prove his case and his allegations are to be accepted as true, has made the gist of an arguably constitutional claim that his sentence violates the eighth amendment and proportionate penalties clause as applied to him. See Patterson, 2018 IL App (1st) 160610, ¶ 15. Therefore, we reverse the trial court‘s summary dismissal of defendant‘s postconviction petition and remand the cause back to the trial court for second stage proceedings to give defendant an opportunity to convince the trial court that Miller applies to him.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and remanded for appointment of postconviction counsel and second-stage postconviction proceedings.
¶ 47 Reversed and remanded.