THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. MICHAEL D. HOOVER, Defendant-Appellant.
Docket No. 2-17-0070
Appellate Court of Illinois, Second District
June 12, 2019
2019 IL App (2d) 170070
Appeal from the Circuit Court of Stephenson County, No. 93-CF-135; the Hon. John F. Joyce, Judge, presiding.
Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL D. HOOVER, Defendant-Appellant.
District & No. Second District Docket No. 2-17-0070
Filed June 12, 2019
Decision Under Review Appeal from the Circuit Court of Stephenson County, No. 93-CF-135; the Hon. John F. Joyce, Judge, presiding.
Judgment Affirmed.
Counsel on Appeal James E. Chadd, Peter A. Carusona, and Jay Wiegman, of State Appellate Defender‘s Office, of Ottawa, for appellant.
Kwame Raoul, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Michael M. Glick and Erin M. O‘Connell, Assistant Attorneys General, of counsel), for the People.
OPINION
¶ 1 Defendant, Michael D. Hoover, appeals a judgment denying him leave to file a successive petition under the
¶ 2 Defendant was charged with first degree murder (
¶ 3 The jury trial was held over three days in July 1994. The evidence established the following. On the morning of November 12, 1992, Robert Peters Sr. was found dead inside Bob‘s Gun Shop, in Freeport. He was lying faceup behind the counter, with a knife protruding from his neck and two gunshot wounds to his head and his chest. According to Dr. Larry Blum, who performed the autopsy, the knife cut across Peters‘s esophagus and severed his jugular vein.
¶ 4 In a confession, defendant said the following. The three men had formed a plan to rob the shop and shoot Peters. Two weeks before they acted, defendant surveilled the stоre and contacted Ehlers. A week after that, the three men settled on their plan. On November 11, 1992, they checked into a hotel near the shop. On the morning of November 12, defendant drove them to the shop, and they entered. Defendant asked Peters to show him a knife. Peters did so. Ehlers then shot Peters in the chest and the head. Keene and Ehlers took some guns and knives. Defendant took Peters‘s wallet from his pocket, then went to the safe. He heard one of the other men say that Peters was still alive. He then saw Keene take a knife from a cabinet and repeatedly stab Peters. Defendant took some cash and other property from the safe, and the other men took some more guns and knives. They fled.
¶ 5 In his confession, defendant stated that the three men had intended to rob and shoot Peters. Asked whether he had
¶ 6 The jury found defendant guilty. At sentencing, the court heard the following evidence. A woman testified that in 1984 or 1985, when she was 14 years old, defendant threatened her with a knife. Another woman testified that in 1987 she had moved because defendant had been harassing her for several months. Defendant went to her new home and threatened to kill the owner if he did not let defendant see her. After she notified the police and a complaint was filed, she аnd her mother relocated to another city.
¶ 7 James Harnish testified that he and defendant committed numerous burglaries and vehicle thefts between 1982 or 1983 and 1989. They were convicted of three residential burglaries and an armed burglary. All of these crimes had been defendant‘s idea.
¶ 8 Laura Jones, at whose home defendant resided for about eight months before the Peters murder and four months afterward, testified that he had sold marijuana and cocaine from the house. He abused her physically and psychologically numerous times. In November 1992, he put a gun to her head and forced her to kneel because she had not flushed the toilet. Another time, he pinned her against a wall and choked her; when he let her go and she dropped to the floor, he kicked her several times. In January 1993, he held a gun to her head and said that he would kill her. For three weeks in August 1994, while incarcerated, he made numerous colleсt calls daily to her at her workplace, threatening to kill her.
¶ 9 A police officer testified that he searched defendant‘s storage locker in April 1993 and found a shotgun that had been sawed off to three inches less than the legal minimum.
¶ 10 In mitigation, defendant noted that he had not been involved in inflicting any of Peters‘s wounds, that he had testified against Keene, and that he had confessed.
¶ 11 The court sentenced defendant to an extended term of life imprisonmеnt for first degree murder, based on the finding that the offense had been accompanied by exceptionally brutal or heinous conduct indicative of wanton cruelty (see
¶ 12 The court explained the sentences as follows. First, no statutory factors in mitigation applied. In particular, defendant had not led a law-abiding life for a substantial pеriod before the offenses. In October 1987, he was convicted of battery, criminal trespass to land, and disorderly conduct. In November 1987, he was convicted of retail theft. In May 1988, he was convicted of two weapons offenses and two counts of possessing cannabis. In July 1988, he was convicted in Wisconsin of two burglaries and one armed burglary. In October 1991, he was convicted of escaping from prison. Thus, the court reasoned, defendant‘s character and attitude indicated that he was “very likely to commit further crimes.” One nonstatutory factor in mitigation applied: defendant had testified for the State at a codefendant‘s trial.
¶ 13 The court turned to factors in aggravation. Defendant had a long and serious criminal history, and a lengthy sentence was needed to deter others from committing similar crimes. The court then turned to defendant‘s rehabilitative potential:
“The Court notes that the Defendant is now 24 yeаrs of age. That at the time of the [Peters murder] the Defendant was 22 years of age. That at the time of the [Peters murder] the Defendant in adult
court had been convicted of eight misdemeanor[s] ***, two charges of burglary, and one armed burglary. The Defendant was previously sentenced to [prison in] Wisconsin for eight years. *** The Defendant was convicted of the offense of escape in Wisconsin and was sentenced to *** 30 months in [prison] ***. The Court finds that as an adult thе Defendant has had 12 convictions since he turned 17 and has served two previous terms in the Department of Corrections.”
¶ 14 The court noted that defendant had been paroled from prison on August 17, 1992. Thus, he committed the Peters murder and the armed robbery fewer than 90 days after being released, and he had planned the crimes even earlier. The court stated, “[T]he rehabilitative potential of the Defendant is almost nill [sic].”
¶ 15 The court observed that, when he еntered the shop, defendant was aware that Peters was going to be shot and killed. Peters was shot twice, and while he was still alive, Keene “cold-bloodedly, brutally, cruelly cut [his] throat.” There was “no better example of what could be considered as grossly ruthless, devoid of any kind of mercy or compassion, in fact, cruel and cold-blooded.”
¶ 16 On appeal, defendant contended in part that his life sentence for murder was excessive in view of his conviction as an accomplice only and his testimony against Keene. He also contended that his extended-term sentence for armed robbery was legally erroneous. We reduced his sentence for armed robbery to 30 years but otherwise affirmed. People v. Hoover, 285 Ill. App. 3d 1102 (1996) (table) (unpublished order under Illinois Supreme Court Rule 23). Explaining our refusal to modify his sentence for murder, we noted the gratuitous cruelty of the murder, defendant‘s major role in planning and facilitating thе crime, and the ample precedent for sentencing an accomplice to life based on the brutal or heinous conduct of the principal. Hoover, slip order at 66-70.
¶ 17 In 2008, defendant petitioned under the Act, claiming that his life sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The trial court dismissed the petition summarily. We affirmed, as Apprendi did not apply retroactively to a collateral proceeding. People v. Hoover, 399 Ill. App. 3d 1234 (2010) (table) (unpublished order under Illinois Supreme Court Rule 23).
¶ 18 On November 30, 2016, defendant moved under section 122-1(f) of the Act for leave to file a successive petition. Sеction 122-1(f) reads:
“Only one petition may be filed by a petitioner *** without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific сlaim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice 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.”
725 ILCS 5/122-1(f) (West 2016) .
¶ 19 Defendant‘s proposed petition claimed that the law allowing a life sentence for first degree murder was unconstitutional as applied under both the eighth amendment аnd the proportionate-penalties clause. The petition relied on Miller v. Alabama, 567 U.S. 460 (2012), which held that sentencing one who was under 18 years old when he offended to mandatory life imprisonment without parole violates the eighth amendment. Defendant contended that, although he had been 22 when he offended and his life sentence was discretionary, the “principle” of Miller, that juveniles and “young adults” are different from mature adults for sentencing purposes, still apрlied. He noted that in People v. House, 2015 IL App (1st) 110580, vacated, No. 122134 (Ill. Nov. 28, 2018), the court had applied Miller to invalidate a mandatory life sentence for a 19-year-old who was convicted of murder under an accountability theory.
¶ 20 Defendant contended that he had satisfied the “cause” requirement of section 122-1(f) in that Miller and House were decided long after the proceedings on his first petition. He contended that he had satisfied the “prejudice” requirement because, in light of the “new
substantive rule” of Miller, the trial court would have been required to consider his rеlative youth and likely would have imposed a shorter sentence.
¶ 21 The trial court denied defendant‘s motion and his motion to reconsider. He timely appealed.
¶ 22 On appeal, defendant originally argued that he satisfied section 122-1(f)‘s requirements for both his federal and state constitutional claims. After he filed his initial brief, however, our supreme court issued People v. Harris, 2018 IL 121932, which held that Miller does not apply to anyone who was 18 years of age or older when he offended. Id. ¶¶ 60-61. Thus, in his reрly brief, defendant abandoned his eighth-amendment claim. On our de novo review (see People v. Gillespie, 407 Ill. App. 3d 113, 124 (2010)), we limit ourselves to the proportionate-penalties claim.
¶ 23 As pertinent here, the proportionate-penalties clause states, “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”
¶ 24 We disagree with defendant. Our opinion in People v. LaPointe, 2018 IL App (2d) 160903, controls this case. We therefore explain it in depth.
¶ 25 In LaPointe, the defendant was convicted of a first degree murder that he committed when he was 18 years and 37 days old. Based on a finding that the offense, the premeditated shooting of a taxicab driver, had been accompanied by exceptionally brutal or heinous conduct, the trial court sentenced him to life imprisonment without the chance of parole. On his direct appeal, this court reduced his sentence to 60 years, the maximum nonextended term. We relied in part on defendant‘s only prior conviction being of burglary and his drug problems and difficult upbringing. People v. LaPointe, 85 Ill. App. 3d 215, 222 (1980). We also relied on the proportionate-penalties clause, reasoning that the trial court had considered the seriousness of the offense but not the possibility that the defendant cоuld eventually be restored to useful citizenship. Id. at 224.
¶
¶ 27 The defendant filed two petitions under the Act, one in 2002 and the other in 2011. Both claimed ineffective assistance of counsel. The first was summarily dismissed; this court affirmed. People v. LaPointe, 341 Ill. App. 3d 1118 (2003) (table) (unpublished order under
Illinois Supreme Court Rule 23). The second was denied after an evidentiary hearing; this court affirmed. People v. La Pointe, 2015 IL App (2d) 130451.
¶ 28 In 2016, the defendant again sought leave to file a successive petition, this time to contend that his life sentence violated the eighth amendment and the proportionate-penalties clause. Specifically, his proposed petition alleged first that his sentence violated Miller even though he had turned 18 shortly before his crime. LaPointe, 2018 IL App (2d) 160903, ¶ 19. The proposed petition did not explicitly and directly allege that the sentence violаted the proportionate-penalties clause, but, on appeal, we construed it as having done so. Id. ¶ 49.
¶ 29 The defendant alleged that he satisfied section 122-1(f)‘s cause requirement because Miller had not been decided when he litigated his earlier petitions. He also alleged that he had satisfied the prejudice prong because he had alleged that the sentencing judge had failed to consider the factors that Miller required. The trial court denied the motion, and the defendant appealed.
¶ 30 On appeal, we held first that the eighth-amendment claim necessarily failed because Miller created a bright-line rule limiting its holding to those who were under 18 years old when they offended. Id. ¶¶ 36-37; see Miller, 567 U.S. at 465.
¶ 31 We then turned to the defendant‘s proportionate-penalties-clause claim. We assumed for purposes of the appeal that the clause is not merely coextensive with the eighth amendment but prоvides additional protections to defendants. LaPointe, 2018 IL App (2d) 160903, ¶¶ 51-54; see People v. Patterson, 2014 IL 115102, ¶ 106 (clauses are “co-extensive“); People v. Clemons, 2012 IL 107821, ¶ 40 (proportionate-penalties clause is broader than eighth amendment). We held that, for a variety of reasons, the claim failed both the cause and prejudice prongs.
¶ 33 We rejected the defendant‘s assertion that the unavailability of Miller at the time of the first postconviction proceeding meаnt that his claim was unavailable. The defendant‘s claim rested not on the substantive rule of law that Miller created but only on “some of the support that the [Miller] Court found for the new rule,” i.e., recent scientific research that “add[ed] to the received wisdom in favor of according a defendant‘s youth great weight in sentencing.” (Emphasis in original.) Id. ¶ 58.
¶ 34 We turned next to the prejudice prong. We explained first that the Act is limited to claims of constitutional deprivations (see
“Although it invoked the prоportionate-penalties clause, the proposed petition alleged only that the trial court ignored the factors of youth and rehabilitative potential that the clause required it to consider. That fell short of contending that the life sentence itself violated the clause by being disproportionate to the offense. Once it is acknowledged that defendant‘s proportionate-penalties claim is not truly a Miller claim, there is nothing constitutional about it.” LaPointe, 2018 IL App (2d) 160903, ¶ 61.
¶ 35 We next noted a second reason why the claim failed the prejudice prong: it was barred by forfeiture and res judicata. On the first score, the defendant could have raised the claim on direct appeal. Id. ¶ 62. On the second score, on direct appeal, the supreme court in essence did consider the claim and rejected it. The court did not even consider the life sentence an abuse of discretion, much less a constitutional violation. Id. ¶ 63; see LaPointe, 88 Ill. 2d at 493.
¶ 36 Third, we noted, insоfar as the proposed petition had raised a genuine claim of a proportionate-penalties violation, it was wholly insufficient. The supreme court‘s 1981 opinion bound us to that conclusion. LaPointe, 2018 IL App (2d) 160903, ¶ 65. Further, we distinguished two opinions on which the defendant relied. In House, a murder case, the 19-year-old defendant acted as a lookout for the actual killers, and his life sentence had been mandated by statute; in LaPointe, the defendant was the principal in a prеmeditated murder, and the sentence was discretionary. Id. In People v. Harris, 2016 IL App (1st) 141744, aff‘d in part and rev‘d in part, 2018 IL 121932, the defendant received an aggregate 76-year sentence for one murder and one attempted murder, both committed as a principal. Relying partly on House, the appellate court held that the sentence violated the proportionate-penalties clause because a de facto life sentence imposed on one who had turned 18 a few months before the offensеs, had
¶ 37 We now apply LaPointe here. We hold first that defendant‘s claim failed the cause prong of section 122-1(f). As in LaPointe, the proportionate-penalties claim could have been raised in defendant‘s first petition under the Act. The clause was in existence then and the principle that a defendant‘s youth is relevant to sentencing was well established. The claim was not created by Miller any more than was the claim in LaPointe.
¶ 38 We hold second that the claim failed the prejudice prong of section 122-1(f). Again, we follow LaPointe. First, as in LaPointe, defendant‘s primary contention, that the trial court erred by failing to consider his youth at the time of the offense, did not raise a genuine claim of a constitutional deprivation. It merely amounted to a contention that the court abused its sentencing discretion. That was not the same as contending that defendant‘s life sentence itself was so disproportionate to his offense as to violate the constitutional prohibition. See LaPointe, 2018 IL App (2d) 160903, ¶ 61.
¶ 39 We note parenthetically that the proposed petition‘s assertion that the trial court ignored his relative youth is severely underсut by the record. The court specifically stated that defendant was 22 years old when he committed the offenses. The court also stated that defendant‘s substantial record of criminal and antisocial behavior as an adult and the circumstances of the murder and armed robbery demonstrated that his rehabilitative potential was almost nil. Thus, there is no basis to assume that the court ignored the factor that defendant asserts it did; as in LaPointe, the court was not requirеd to detail on the record all of the considerations that it weighed in deciding on the sentence. See LaPointe, 88 Ill. 2d at 493.
¶ 40 Second, as was true of the claim in LaPointe, defendant‘s claim could have been raised on his direct appeal. Thus, it was barred by forfeiture. See LaPointe, 2018 IL App (2d) 160903, ¶ 62.
¶ 41 Third, insofar as the proposed petition did raise a genuine claim under the proportionate-penalties clause, the claim was so lacking in arguable merit that its absence in the original proceeding did not work any prejudiсe to defendant. As pertinent here, a sentence does not violate the clause unless it is ” ‘cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community.’ ” People v. Sharpe, 216 Ill. 2d 481, 487 (2005) (quoting People v. Moss, 206 Ill. 2d 503, 522 (2003)).
¶ 42 It cannot be seriously contended that defendant‘s life sentence was wholly disproportionate to his offense, if indeed it was disproportionate at all. Surely if LaPointe‘s sentence failed this high standard (as the supreme court held thаt it did), then so must defendant‘s sentence. Although LaPointe was convicted as the principal and lone offender and defendant as an accomplice, that difference is of limited significance. As the trial court and this court noted previously, defendant‘s role in planning and facilitating the murder was
¶ 43 We conclude that defendant‘s motion did not satisfy either the cause or prejudice prong of section 122-1(f) of the Act. Therefore, the trial court correctly denied it.
¶ 44 We affirm the judgment of the circuit court of Stephenson County.
¶ 45 Affirmed.