Case Information
*1 I LLINOIS O FFICIAL R EPORTS Appellate Court
People v. Williams
,
District & No. First District, Second Division
Docket Nos. 1-11-1145, 1-11-2251 cons.
Opinion filed November 27, 2012
Opinion withdrawn December 11, 2012
Modified opinion filed December 12, 2012
Held The dismissal of defendant’s third and fourth successive postconviction petitions was reversed and the cause was remanded for a determination ( Note: This syllabus of whether defendant was entitled to a new hearing pursuant to his claim constitutes no part of of actual innocence in his third petition, and if a new hearing is denied, the opinion of the court but has been prepared the trial court is directed to hold a new sentencing hearing pursuant to the by the Reporter of fourth petition, which alleged that the mandatory life sentence without Decisions for the parole imposed for an offense committed when he was a juvenile violated convenience of the the eighth amendment. reader. ) Decision Under Appeal from the Circuit Court of Cook County, No. 94-CR-4431-04; the Hon. Angela Munari Petrone, Judge, presiding. Review Judgment Reversed and cause remanded.
Counsel on Michael L. Sklar, P.C. (Michael L. Sklar, of counsel), and Ungaretti & Harris LLP (John Ruskusky, Timothy E. Horton, Maura M. McIntyre, and Appeal
Brittany A. Smith, of counsel), both of Chicago, for appellant. Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, William L. Tofenetti, and Mary P. Needham, Assistant State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court,
with opinion.
Justices Quinn and Connors concurred in the judgment and opinion. OPINION
Here we are called upon to determine whether the denial of defendant Carl Williams’
petition for an evidentiary hearing to show actual innocence should be reversed. We are also
required to determine whether the United States Supreme Court’s holding in
Miller v.
Alabama
,
third petition. Defendant timely appealed on April 12, 2011. On that same day, defendant *3 sought leave from the circuit court to file his fourth petition, which sought to modify his sentence. On June 28, 2011, the circuit court denied defendant leave to file his fourth petition. Defendant timely appealed on July 28, 2011. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 602, 606(a), and 651. Ill. S. Ct. R. 602 (eff. May 30, 2008); R. 606 (eff. Mar. 20, 2009); R. 651 (eff. Apr. 26, 2012). On August 30, 2011, this court granted defendant’s motion to consolidate the appeals under case number 1-11-1145.
¶ 5 BACKGROUND All pertinent factual background concerning defendant’s trial and initial appeal is well
stated in this court’s 1999 opinion.
People v. Williams
,
to support probable cause for his warrantless arrest. Defendant alleged he was not able to discover the new evidence sooner because he was hampered by the difficulties of communicating between prisons, by his codefendants’ and his ex-girlfriend’s refusals to help him, and because the witness who told the police about defendant’s whereabouts, Clinton Taylor, gave the police an alias, i.e., Larry McGee. To support his petition, defendant attached the affidavits of his codefendants Zarice Johnson, Stanley Hamelin, and Scott Chambers; his attorney at trial, Stephen Richards; and his ex-girlfriend Tameka Johnson; his own affidavit; an identity sheet from the Illinois Department of Corrections (IDOC); an affidavit showing his attempts to secure the newly discovered evidence; and the unpublished order denying his second petition. [2] Codefendant Johnson attested that there were four other perpetrators besides himself
*4 involved in the crime for which he was convicted; Hamelin, Brown, Chambers, and a person that he did not know (hereinafter, the fifth person). At the time of the incident, he sat next to the fifth person in the backseat of Brown’s car for approximately an hour or two. He described the fifth person’s appearance as “very dark skinned, wore a full untrimmed beard, was of slim athletic build and over six feet in height.” He remembered the fifth perpetrator’s height because “he had much difficulty getting his large body out of the back seat of the *** car” and that “[o]nce out of the car his frame was much taller than I would have stood and I’m 5’9”.” Once Johnson was arrested, he was separated from his codefendants and “left in a dark room for what seemed like several hours.” He was shown photographs by the police of the other perpetrator. He identified Hamelin, Brown, and Chambers, but was unable to identify the photograph of the alleged fifth perpetrator. Johnson attested, “I repeatedly told the interrogating detectives that the person in the remaining photo was not the tall, dark skinned, bearded man that sat next to me in Brown’s car,” and that he did not know the person in the photograph. The police “insisted” he was wrong and told him that Hamelin and Chambers had identified the fifth perpetrator as the person shown in the photograph. Johnson also attested that the police hit and slapped him, and at one point hit him with a telephone book. Johnson agreed to sign a confession implicating the alleged fifth perpetrator to end the physical abuse from the police and to protect himself. He insisted that the police did not have the correct fifth perpetrator, but the police and assistant State’s Attorney (ASA) told him “it didn’t matter because the others had identified him.” Johnson also attested that he did not know who “Larry McGee” was, and he was not in the car with him when he was arrested. Johnson acknowledged that he did receive communications from defendant asking for help, but did not respond “because I didn’t want to open up this very painful chapter in my life and I was very bitter about what happened to me.” He also doubted that he would be able to help or that defendant’s efforts would be successful. He did not agree to help defendant until he met defendant’s brother in prison “[s]ometime in 2001 or 2002.” Defendant’s brother was released, but he did not hear from defendant “for another year or so.” He “didn’t respond for the same reasons as before.” A friend of defendant’s eventually contacted him in “early 2006.” Johnson informed her that he would not help defendant unless a “professional person” became involved. Hamelin, in his affidavit, attested that he does not know defendant. The first time he saw
defendant was when the police showed him a photograph. He attested that he told the police that he did not know the person in the photograph shown to him. He further stated that the police coerced him into identifying defendant as the fifth perpetrator with threats and physical beatings. Hamelin also attested that the police told him that his accomplices had also identified defendant as the fifth perpetrator. He only agreed to implicate defendant to stop the police from physically abusing him further. Hamelin attested that he described the fifth perpetrator to the police as “a very light skinned man with very long hair who was tall around 6’1-6’3 in height.” However, he was told by the police “to forget that and agree that it was [defendant].” Chambers, in his affidavit, attested that he also did not know the fifth perpetrator. He
only knew that the fifth perpetrator was a friend of Brown’s, “who was called ‘Carl’ by Brown.” Chambers attested that in the statement he gave to Detective Winstead, he *5 “described this ‘Carl’ from my memory as about 6 foot 1 to 6 foot 3 in height, light skinned and with very long hair reaching down to his shoulders.” Chambers attested that the police provided him with a photograph of the person whom they thought was the fifth perpetrator. Later he viewed the alleged fifth perpetrator in person. Chambers told the police that the person shown to him in the photograph and in person was not the “ ‘Carl’ ” that he described to them. The police then “tried to convince” Chambers that the person in the photograph was the fifth perpetrator. Chambers only agreed to identify defendant as the “ ‘Carl’ ” he described as the fifth perpetrator because Detective Turner had told him that his codefendants had already identified defendant and he hoped for special treatment for cooperating. He also attested that he was instructed by Detective Turner not to describe defendant physically when confessing to the ASA. Chambers attested that he had “spent time together” with defendant at Cook County jail while they awaited trial. In his affidavit, he stated “I told [defendant] at that time I felt very badly about falsely identifying him to Detective Turner. I told him that I would try to help him later.” He acknowledged that defendant contacted him while he was in prison but attested that “[b]ecause I was moving around so much that I wasn’t thinking much about [defendant] and his problems and I did not respond” to defendant’s letters. Stephen Richards, defendant’s attorney at trial, attested that he was never advised at the time of trial that defendant’s codefendants stated to the police that defendant was not involved in the crimes or that their descriptions of the fifth perpetrator were at odds with defendant’s appearance. According to Richards, had he known this information at the time of trial, it “is reasonably likely to have changed the outcome of the trial.” Richards acknowledged that defendant’s codefendants would most likely have asserted their fifth amendment rights and would not have been available as witnesses, but had he known about their statements to the police, he would have introduced them at trial. Had Taylor/McGee’s identity been known to him, he would have obtained a statement from him and “together with the withheld new evidence from Chambers, Hamelin, and Johnson, [would] have argued more forcibly that [defendant’s] warrantless arrest was unlawful.” He would have also called Taylor/McGee to testify to show that the police had arrested the wrong person. The police provided him with no evidence that could have helped him locate the informant. Tameka Johnson, defendant’s former girlfriend, attested that she was with defendant caring for defendant’s mother from the afternoon of January 11, 1994, until the afternoon of January 13, 1994. She stated that “[e]arly in the evening of Thursday, January 13th, in my presence, [defendant] called Erica Wells, another one of [defendant’s] friends, at her mother’s home. *** [Defendant] drove me back to my mother’s house after which I assume he visited Erica Wells.” She did not disclose this information earlier because her mother insisted she not do it for fear that she would be implicated in the crime. Although defendant had contacted her over the years to aid him, she refused because of her age and her mother’s instructions. She also lost contact with defendant because she did not have a telephone or a “means of transportation.” Defendant continued to contact her for aid but she refused because she was busy raising her children, and she feared being “held accountable for not disclosing important evidence.” She was also in debt and unemployed and spent eight months in custody and “didn’t want to have anything more to do with the police and the courts.” Clinton Taylor, a/k/a Larry McGee, attested that he was arrested with Brown, Johnson, *6 and another person. He told the police his name was Larry McGee. He was unaware of the crime in question. Taylor saw Brown being physically beaten by the police. He observed Johnson in a “disheveled condition.” The police asked him where Carl could be found, but did not tell him why he had been arrested or why they were looking for Carl. The police threatened him and told him that if he did not lead them to Carl, he would be implicated or charged for the crimes committed by Brown and Johnson. They told him they would let him go if he led them to Carl. The only Carl he knew in the neighborhood was defendant. He attested that he led the police to defendant “to avoid being caught up in what was going on and to avoid the beating that I saw Brown receive.” He told the police he had no idea whether or not defendant had any involvement in the crime. The police testimony confirmed this. Shortly after defendant’s arrest, he moved away from the neighborhood. A few months later, he moved to Iowa and used his given name, Clinton Taylor. Defendant attached his IDOC record, a copy of his arrest mug shot, and his own affidavit.
His IDOC record shows that as of December 26, 2006, he weighed 174 pounds and was 5 feet, 9 inches tall. Defendant attested that his codefendants “are the principle sources of evidence to exonerate me” and that “the only time I saw my co-defendants were brief passing glances in the police station at the time of our arrest in January, 1994.” He did not know his codefendants. He attested that he had made continuous efforts since his conviction to establish his innocence. He stated, “my efforts to contact [codefendants] were repeatedly frustrated by the prison system ***, my inability to obtain professional help despite great efforts, and by the refusal and reluctance of my co-defendants to respond to my efforts once I made contact with them.” Defendant then described in detail his numerous efforts to contact Chambers, Hamelin, and Johnson. He stated that when he eventually prepared an affidavit for Chambers, Chambers refused because of “his concern about his own pending post- conviction petition which he did not want to put in jeopardy.” Defendant attested that he had difficulty locating Johnson because Johnson had been transferred amongst several prisons. He attached a document that logged his numerous attempts to secure professional representation and his attempts to contact his codefendants. He attested that before giving his confession, he was physically abused by Detective Turner. He was also subject to verbal abuse. He only agreed to sign his statement to the police because he feared for his safety. 2009 Opinion This court, in defendant’s 2009 appeal from the circuit court’s denial of his petition for leave to file his third petition, held that defendant made a claim of actual innocence based on newly discovered evidence that was noncumulative and material and could potentially change the result upon retrial. Williams , 392 Ill. App. 3d at 369-70. Specifically, the affidavits of Zarice Johnson and Taylor/McGee were new, in that “both *** were involved in the crimes and were not heard from before.” Id. at 369. In regard to materiality, this court held “the attestations of Johnson and Taylor[/McGee] that defendant was not the fifth participant in the crimes and that they identified defendant as the fifth offender under pressure from police are clearly material and have the potential to change the result on retrial.” This court held that Johnson’s and Taylor’s affidavits were not cumulative but, rather, “lend credence to Chambers’ and Hamelin’s similar affidavits stating that they were *7 pressured to wrongly identify defendant.” Id. at 369-70. This court rejected the State’s argument that res judicata and collateral estoppel barred defendant’s allegations. Id. at 368. In conclusion, this court held that “given the pro se status of defendant in his initial two postconviction petitions, the gravity of the offenses in this case and the affidavits attesting to defendant’s actual innocence, fundamental fairness requires that defendant’s postconviction claims receive full consideration on their merits.” at 371. Accordingly, the matter was remanded for second-stage proceedings under sections 122-4 through 122-6 of the Post-Conviction Hearing Act (725 ILCS 5/122-4 to 122-6 (West 2006)). Id. Remand Proceedings on Defendant’s Third Petition On remand, defendant sought and the circuit court allowed him to supplement the affidavits of Zarice Johnson, Stanley Hamelin, Clinton Taylor, Stephen Richards, and himself with statements regarding their willingness to testify in support of defendant’s petition and waive their rights against self-incrimination. Identical affidavits were then provided from Zarice Johnson, Stanley Hamelin, Clinton Taylor, Stephen Richards, and defendant. On June 29, 2010, the State filed a motion to dismiss defendant’s third petition in which
it argued that defendant failed to meet the requirements of the cause-and-prejudice test by presenting evidence that could have been presented earlier; that defendant’s actual innocence claim is not based upon new evidence; that defendant failed to meet the requirements of Brady ; that defendant’s claim of actual innocence is not freestanding; and that defendant’s attempt to relitigate his motion to suppress is barred by waiver and res judicata . Defendant responded that the State’ s motion ignored the rulings of this court and that the State’s motion failed to deal with the question before the court, i.e. , whether defendant has shown “one or more substantial claims of constitutional infirmity in his arrest, interrogation, or trial that entitle him to a third stage hearing on those claims.” Defendant asserted that he did show that his constitutional claims were substantial and, thus, he was entitled to proceed to a third- stage evidentiary hearing on his petition. After briefing and argument, the circuit court granted the State’s motion to dismiss
defendant’s third petition. The circuit court found that the affidavits of Stanley Hamelin, Zarice Johnson, and Scott Chambers were not from new witnesses that had new information. Rather, the affiants were known to defendant at the time of his trial and awaited trial in the same Cook County jail. The circuit court noted that Chambers and Hamelin also gave affidavits in defendant’s previous postconviction petition. The circuit court stressed that none of defendant’s codefendants in their respective affidavits “identify the availability of the alleged evidence because in none of them does a co-defendant affirmatively aver that he would have waived his right against self-incrimination and testified as to the contents of the affidavits at [defendant’s] trial.” The circuit court found that Taylor/McGee’s affidavit could have been discovered sooner through due diligence as he was known to and was a friend of defendant. The court stated that “[i]t appears that [defendant] made a strategic decision not to call McGee at trial so petitioner could argue that McGee, and not [defendant], was the fifth offender.”
¶ 23 In regard to the issue of the police having probable cause to arrest defendant, the court
found the issue had previously been ruled upon and, thus, was waived under the doctrine of res judicata . The circuit court found that the information in Tameka Johnson’s affidavit could also have been known to defendant, as she was his former girlfriend and “[h]er alibi testimony would have been known to [defendant] at the time of trial.” As to defendant’s Brady claim, that the State intentionally withheld evidence of misidentification of him by codefendant Scott Chambers, the circuit court found this information not to be newly discovered because Scott Chambers, in his affidavit, told defendant while they were both awaiting trial that he falsely identified him to the police.
¶ 24 The circuit court also noted that “Zarice Johnson, Scott Chamber, and Stanley Hamelin
contradict themselves regarding purported descriptions of the fifth offender given to police. Zarice Johnson described him as very dark skinned with a full, untrimmed beard, Stanley Hamelin described him as very light skinned with very long hair, and Scott Chambers described him as light skinned with very long hair reaching down to his shoulders.” The court found that “[t]heir contradictory affidavits give no credence to the notion that their testimony would be of such conclusive character as to probably change the results upon retrial.”
¶ 25 The circuit court addressed defendant’s allegations of police abuse toward him by finding
them waived because they were already made in his motion to suppress statements. The court then explained defendant’s confession, which it found “contained details only an attacker would know.” The court concluded that it “did not find that the affidavits contain evidence that is material, noncumulative, and could not have been discovered sooner through due diligence. The evidence is not newly discovered, nor of such conclusive character that it would probably change the result on retrial. There has been no showing of a violation of petitioner’s constitutional rights.” Defendant timely appealed on April 12, 2011. Defendant’s Fourth Petition Also on April 12, 2011, defendant filed a motion for leave to file another successive postconviction petition (fourth petition). In his fourth petition, defendant argued that based on the Supreme Court’s decision in Graham v. Florida , 560 U.S. ___, 130 S. Ct. 2011 (2010), “a sentence of life imprisonment without parole for a non-capital crime committed by a minor was a ‘cruel and unusual punishment’ and violated the 8th amendment to the Constitution.” Defendant cited factors to consider in favor of reducing his sentence, including that he was 17 years old at the time of the offenses, he was convicted on a theory of accountability, and that “if involved at all, [he was not] present when the double murders which invoked the mandatory life sentence were committed later in the crime spree.” On June 28, 2011, the circuit court denied defendant leave to file his fourth petition and assessed fees and costs for filing a frivolous pleading. In its written order, the circuit court found Graham distinguishable and that defendant did not meet the cause-and-prejudice test. The court also assessed defendant fees and costs, finding defendant’s claim was “frivolous and patently without merit.” Defendant timely appealed on July 28, 2011. On August 30, 2011, this court granted
defendant’s motion to consolidate both of defendant’s appeals under case number 1-11-1145. ¶ 30 After the parties filed their respective briefs, the Supreme Court issued its opinion in
Miller v. Alabama
, in which it held a “mandatory life [sentence] without parole for those
under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual punishments.’ ”
Miller v. Alabama
,
¶ 31 In response, the State argued that Miller “does not categorically prohibit life sentences
for juveniles, but rather requires a particular procedure before it may be imposed.” (Emphasis in original.) The State argued the circuit court, when sentencing defendant, used the proper procedure in this case by considering both evidence in aggravation and mitigation, defendant’s age, and his allocation before exercising its discretion in sentencing defendant to life in prison without parole. The State argued further the rule expounded in Miller is procedural and not applicable to final convictions such as this one. Accordingly, the State argued that cannot be applied retroactively. We allowed defendant to file a reply to the State’s response. In reply, defendant pointed
out that he was 17 years old at the time the crimes occurred, and he was sentenced to life in prison without the possibility of parole. He alleged that the statute he was sentenced under provided for a mandatory sentence of natural life and therefore violated both the United States and Illinois Constitutions. Accordingly, he maintains his sentence was void ab initio and can be attacked at any time. ANALYSIS Before this court, defendant argues that the circuit court erred in granting the State’s
motion to dismiss his third petition because he has made a substantial showing of constitutional violations, such that he is entitled to an evidentiary hearing. In the alternative, he argues that the circuit court erred in denying his petition for leave to file a fourth petition because the allegations in his fourth petition contain sufficient allegations to satisfy the cause-and-prejudice requirements of section 122-1(f) of the Act. Therefore, he requests a new sentencing hearing. The Act allows criminal defendants to challenge their conviction or sentence based on
substantial deprivations of their constitutional rights.
People v. Peeples
,
“(f) 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 claim 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 2010). However, a petitioner is excused from the cause-and-prejudice test where petitioner can
set forth a claim of actual innocence.
Ortiz
,
at 510. Rather, “[a]n evidentiary hearing is warranted on a post-conviction claim only where
the allegations in the post-conviction petition, supported where appropriate by the trial record
or accompanying affidavits, make a substantial showing that the constitutional rights of the
defendant have been violated.” “At the motion to dismiss stage in post-conviction
proceedings, all well-pleaded facts that are not positively rebutted by the trial record are to
be taken as true.”
People v. Childress
, 191 Ill. 2d 168, 174 (2000); see also
People v.
Coleman
,
not rebutted by the trial record must be liberally construed in his favor and taken as true.
Childress
,
show that his evidence is newly discovered, material, and noncumulative, and that it is “of such conclusive character that it would probably change the result on retrial.” Morgan , 212 Ill. 2d at 154. Defendant has shown that his evidence is newly discovered because it was not available at his trial and could not have been discovered earlier through diligence. Morgan , 212 Ill. 2d at 154 (defining newly discovered as “evidence that was not available at defendant’s original trial and that the defendant could not have discovered *** through diligence”). Defendant attested that his codefendants and Tameka Johnson were previously uncooperative. His codefendants and Tameka Johnson stated in their affidavits that they were uncooperative with defendant. He attested to the various difficulties of communicating while in the prison system and attached documentation of his numerous attempts to discover the evidence. Clinton Taylor could not even be located until well after trial. Defendant’s attorney also attested that the evidence in question was not known to him at the time of trial. Taking these allegations as true, defendant has shown that the evidence his allegations are based on is newly discovered in that it was not available at the time of his trial nor could he have discovered it through diligence. Additionally, defendant’s allegations are material and noncumulative and probably would
have changed the result of his trial. His codefendants attested that they each told the police
that the police had the wrong man, that they did not know defendant, and that they gave
descriptions of the alleged fifth perpetrator that did not match defendant. Taylor/McGee
attested to the circumstances which led the police to defendant. We hold that defendant’s
allegations are clearly material because they weaken or contradict the State’s case against
him. This evidence is also noncumulative because it is new and was not previously before
the trier of fact. See
Ortiz
,
possibility of parole for their respective murder convictions.
Miller
,
under the eighth amendment. It stated:
“The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees
individuals the right not to be subjected to excessive sanctions.’ [Citation.] That right,
we have explained, ‘flows from the basic “precept of justice that punishment for crime
should be graduated and proportioned” ’ to both the offender and the offense. [Citation.]
As we noted the last time we considered life-without-parole sentences imposed on
*13
juveniles, ‘[t]he concept of proportionality is central to the Eighth Amendment.’
[Citation.] And we view that concept less through a historical prism than according to
‘ “the evolving standards of decency that mark the progress of a maturing society.” ’
[Citation.]”
Id.
at ___,
The Court did not ban the sentencing of juveniles to life in prison without parole; rather, it
held the mandatory sentencing of juveniles to life without parole violates the eighth
amendment and required sentencing courts “to take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a lifetime in
prison.”
Id.
at ___,
“
Graham
,
Roper
, and our individualized sentencing decisions make clear that a judge
or jury must have the opportunity to consider mitigating circumstances before imposing
the harshest possible penalty for juveniles. By requiring that all children convicted of
homicide receive lifetime incarceration without the possibility of parole, regardless of
their age and age-related characteristics and the nature of their crimes, the mandatory
sentencing schemes before us violate this principle of proportionality, and so the Eighth
Amendment’s ban on cruel and unusual punishment.”
Id.
at ___,
“(a) Except as otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
(1) for first degree murder,
* * * (c) the court shall sentence the defendant to a term of natural life imprisonment when the death penalty is not imposed if the defendant, ***
(ii) is a person who, at the time of the commission of the murder, had attained the age of 17 or more and is found guilty of murdering an individual under 12 years of age; or, irrespective of the defendant’s age at the time of the commission of the offense, is found guilty of murdering more than one victim [.]” (Emphasis added.) 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996). In this case, with the holding of in mind, the statute can be validly applied to adults. Accordingly, there are circumstances in which it can be validly applied. Therefore, it is not *14 facially unconstitutional. While we have previously determined that defendant’s third postconviction petition may
proceed because the defendant has made a substantial showing of a freestanding claim of actual innocence, that standard does not apply to the defendant’s fourth petition, which is based on Miller . Consequently, we must apply the cause-and-prejudice test under section 122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2010). This court has rejected defendant’s arguments that new court rulings provide a basis to
find “cause” for failure to raise an issue on direct appeal or in an initial postconviction
petition. See
People v. Purnell
,
foundation” for the newly cited cases was laid before the defendant’s conviction, or the filing
of his initial postconviction petition. We find that the holdings defendant relies upon here,
i.e.
,
Miller v. Alabama
,
must show that he was prejudiced. 725 ILCS 5/122-1(f) (West 2010). In order for defendant
to show that he was prejudiced by his failure to raise his claim in his initial postconviction
petition that his sentence is unconstitutional, defendant has to demonstrate “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 2010).
Defendant can show prejudice if the Supreme Court’s decision in
Miller
applies retroactively
to his case. To determine whether created a new constitutional rule of criminal
procedure such that it can be applied retroactively in this case, we look to the standards set
forth by the Supreme Court in
Teague v. Lane
and adopted by our supreme court in
People
v. Flowers
.
People v. Sanders
,
“Generally, new rules are not to be applied retroactively to cases on collateral review except in two instances: (1) if the rule places certain kinds of primary, private individual conduct beyond the power of the criminal-law-making authority to proscribe; or (2) if the rule requires the observance of those procedures that are implicit in the concept of ordered liberty.” Id. at 401.
The second exception is limited to “ ‘watershed rules of criminal procedure’ ” and to “those
new procedures without which the likelihood of an accurate conviction is seriously
diminished.”
Id.
(quoting
Teague
,
this case because it is a rule that “requires the observance of those procedures that are implicit in the concept of ordered liberty.” Id. The Court in Miller explained:
“The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees individuals the right not to be subjected to excessive sanctions.’ [Citation.] That right, we have explained, ‘flows from the basic “precept of justice that punishment for crime should be graduated and proportioned” to both the offender and the offense. [Citation.] As we noted the last time we considered life-without-parole sentences imposed on juveniles, ‘[t]he concept of proportionality is central to the Eighth Amendment.’ [Citation.]” Miller ,567 U.S. at ___,132 S. Ct. at 2463 .
Accordingly, under the proportionate punishment analysis in
Miller
, defendant was denied
a “basic ‘precept of justice’ ” by not receiving any consideration of his age from the circuit
court in sentencing. (Internal quotation marks omitted.)
Id
. at ___, 132 S. Ct. at 2463.
Further, “ ‘[t]he concept of proportionality is central to the Eighth Amendment.’ [Citation.]”
Id.
Applying the rule of
Miller
to the case at bar shows that “the rule requires the observance
of procedures that are implicit in the concept of ordered liberty.”
Sanders
,
cases of Evan Miller and Kuntrell Jackson. Miller was convicted of killing a man in Alabama
and Jackson was convicted as an accomplice in an Arkansas robbery resulting in murder.
Both were 14 when convicted. It is instructive that the
Miller
companion case,
Jackson v.
Hobbs
, arising on collateral review, involved a life-without-parole-sentence heretofore final.
Notwithstanding its finality, the Supreme Court of the United States in effect retroactively
applied and vacated Jackson’s sentence. “[O]nce a new rule is applied to the defendant
in the case announcing the rule, evenhanded justice requires that it be applied retroactively
*16
to all who are similarly situated.”
Teague
,
additional authority, which we allowed. In its motion, the State cited the recent Michigan
Court of Appeals decision in
People v. Carp
, No. 307758,
crime considering his status as a juvenile at the time of the offense. This violates the eighth
amendment’s prohibition on cruel and unusual punishment. ,
¶ 58 At oral argument the State informed the court that approximately 105 convicted
defendants in Illinois have life without parole sentences and would be affected if the Miller holding is applied retroactively. This is not such a great number of cases for us to conclude that it is an unreasonable burden for the State and the courts to reopen their cases for resentencing.
¶ 59 Lastly, we address a concern which arises as a consequence of determining to be
retroactively applied. No doubt there are family members, friends, and victims who have suffered due to the acts of juveniles now serving life-without-parole sentences. We understand the anxiety, pain, and negative impact that remanding and ordering resentencing hearings will cause them. However, a new sentencing hearing should require only one further proceeding to attend whether or not they previously attended. They will have another opportunity to make a statement as to the impact the crime has had upon them before the new sentence is given. See 725 ILCS 120/6 (West 2010). Due to our holding regarding defendant’s fourth petition, if the circuit court declines to
grant defendant a new trial after an evidentiary hearing on his third petition, the circuit court shall conduct a new sentencing hearing in accord with our holding concerning defendant’s fourth petition. Additionally, due to our holding on defendant’s fourth petition, we reverse the circuit court’s judgment awarding fees and costs. CONCLUSION The judgment of the circuit court is reversed and the cause is remanded with directions. Reversed and cause remanded.
Notes
[1] According to defendant’s third petition, his fourth codefendant, Anthony Brown, refused to provide defendant assistance because he is pursuing his own actual innocence claim.
[2] People v. Williams , No. 1-04-2153 (2006) (unpublished order under Supreme Court Rule 23).