FIFTH DIVISION June 30, 2015

No. 1-13-0985

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 02 CR 17602 ) DEANDRE BANKS, ) Honorables ) Nicholas R. Ford and ) Michael Toomin, Defendant-Appellant. ) Judges Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 Defendant Deandre Banks appeals from the trial court's denial of his motion to vacate the

judgment order dismissing his petition for postconviction relief. However, defendant has not

challenged that denial in this court, but instead argues for the first time on appeal that automatic

application of the mandatory minimum sentence of 45 years for a juvenile defendant and the

statute providing for an automatic transfer to adult court for a juvenile defendant charged with

first degree murder violate the eighth amendment of the United States Constitution (U.S. Const.

amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970,

art. I, § 11).

¶2 Following a bench trial, defendant was found guilty of first degree murder in the March

2002 homicide of Ronnie Washington. He was subsequently sentenced to 45 years in prison,

which included 20 years for the first degree murder conviction and 25 years as a mandatory add-

on term for the use of a firearm during a homicide. No. 1-13-0985

¶3 Since defendant has not raised any issues related to the facts of his case, we will only

provide a brief summary of the evidence presented at trial. In the afternoon of March 11, 2002,

Washington was in the front yard of his family's home helping sort bags for the family's move.

Defendant, wearing a black, hooded sweater, walked up next to Washington and fired a gun five

or six times at Washington and then fled. Washington's mother, sister, and fiancée witnessed the

shooting from different positions in the house and yard. Later, in June 2002, Washington's

fiancée was at the West Suburban Hospital waiting room when she recognized defendant. When

defendant looked at her, he left the hospital. From this encounter, the police obtained a name

and conducted a photo array for the eyewitnesses. All three witnesses identified defendant in a

photo array and later in a lineup. They also identified him in open court. At the conclusion of

the trial, the trial court found defendant guilty of first degree murder. Defendant's conviction and

sentence were affirmed on direct appeal. For a more detailed discussion of these facts, see

People v. Banks, No. 1-05-1077 (Sept. 21, 2007) (unpublished order under to Supreme Court

Rule 23).

¶4 In August 2008, defendant filed his pro se postconviction petition, asserting various

claims of ineffective assistance of trial counsel. The trial court summarily dismissed defendant's

petition in October 2008. In January 2013, defendant filed a pro se motion to vacate the

judgment order dismissing his petition for postconviction relief. In the motion, defendant

contended that he never received notice of the dismissal as required under the Post-Conviction

Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 to 122-8 (West 2008)) and that therefore

the judgment was void. The trial court denied defendant's motion in February 2013.

¶5 This appeal followed.

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¶6 Initially, the State contends that this court lacks jurisdiction over defendant's appeal

because defendant's pro se motion was untimely. It is undisputed that defendant did not appeal

the dismissal of his pro se postconviction petition within 30 days. See 725 ILCS 5/122-7 (West

2008); Ill. S. Ct. Rs. 606(b), 651(d) (eff. Feb. 6, 2013). Rather, defendant maintains that his

motion to vacate the dismissal of his postconviction petition was in substance a petition for relief

from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401

(West 2012)) because he argued that the trial court failed to provide him with notice of the

dismissal of his petition and, therefore, the dismissal order was void.

¶7 Section 2-1401 sets forth a comprehensive, statutory procedure that allows for the vacatur

of a final judgment older than 30 days. 735 ILCS 5/2-1401 (West 2012). Section 2-1401

requires that the petition be filed in the same proceeding in which the order or judgment was

entered, but it is not a continuation of the original action. Id. "To obtain relief under section 2-

1401, the defendant 'must affirmatively set forth specific factual allegations supporting each of

the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in

presenting this defense or claim to the circuit court in the original action; and (3) due diligence in

filing the section 2-1401 petition for relief.' " People v. Pinkonsly,

(2003)

(quoting Smith v. Airoom, Inc.,

(1986)).

¶8 Further, the statute provides that petitions must be filed not later than two years after the

entry of the order or judgment, but offers an exception to the time limitation for legal disability

and duress or if the ground for relief is fraudulently concealed. 735 ILCS 5/2-1401(c) (West

2012). "Petitions brought on voidness grounds need not be brought within the two-year time

limitation. Further, the allegation that the judgment or order is void substitutes for and negates

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the need to allege a meritorious defense and due diligence." Sarkissian v. Chicago Board of

Education,

(2002).

¶9 Here, it also undisputed that defendant filed his motion beyond the two-year timeframe

set forth in section 2-1401, but he asserted that the dismissal of his postconviction petition was

void because the trial court did not give him notice of the dismissal. A judgment is void only

when the trial court that entered it lacked jurisdiction. People v. Moran,

. According to the State, defendant failed to argue that the trial court lacked

jurisdiction to dismiss his postconviction petition and, therefore, defendant's motion to vacate

was untimely and this court lacks jurisdiction. We disagree with the State. The State's argument

regarding defendant's failure to allege that the trial court lacked jurisdiction to dismiss his

postconviction petition does not affect the jurisdiction of this court over the appeal. Rather, the

failure to argue jurisdiction by defendant was a basis to deny defendant's motion and has no

bearing on our jurisdiction to consider the motion or an appeal therefrom. Accordingly, we

conclude that we have jurisdiction to consider the denial of defendant's motion.

¶ 10 However, defendant on appeal has not argued that the denial of his motion was improper

on the merits, but instead, raises two constitutional challenges to his sentence: that the automatic

application of a mandatory minimum sentence of 45 years for a juvenile defendant and the

statute providing for an automatic transfer to adult court for a juvenile defendant charged with

first degree murder violate the eighth amendment of the United States Constitution and the

proportionate penalties clause of the Illinois Constitution. As pointed out above, defendant did

not raise these issues in the trial court, but a defendant may challenge the constitutionality of a

statute at any time. In re M.I.,

; People v. Harris,

.

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¶ 11 We first address defendant's contention that the automatic transfer statute is

unconstitutional. The automatic transfer provision of the Juvenile Court Act of 1987 excludes

juveniles over 15 years of age who are charged with particular enumerated crimes, including first

degree murder, from juvenile court jurisdiction. 705 ILCS 405/5-130 (West 2002). Defendant

relies on the recent United States Supreme Court decisions in Roper v. Simmons,

(2005), Graham v. Florida,

(2010), J.D.B. v. North Carolina,

,

(2011), and Miller v. Alabama,

,

(2012), to assert that the

automatic transfer provision violates due process, the eight amendment, and the proportionate

penalties clause because he was automatically transferred to adult court without any

consideration of his youthfulness.

¶ 12 However, after defendant had filed his opening brief, the Illinois Supreme Court issued a

decision which rejected these arguments, holding that the automatic transfer statute is

constitutional. People v. Patterson,

. Like defendant in the instant case, the

defendant in Patterson supported his due process claims by citing to Roper, Graham, and Miller.

Id. ¶ 97. The supreme court refused to extend the eighth amendment analysis in those cases to

due process claims.

"[H]ere defendant is attempting to support his due process

argument by relying on the Supreme Court's eighth amendment

analysis in Roper, Graham, and Miller. Defendant's constitutional

argument is crafted from incongruous components. Although both

the Supreme Court and defendant have emphasized the distinctive

nature of juveniles, the applicable constitutional standards differ

considerably between due process and eighth amendment analyses.

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A ruling on a specific flavor of constitutional claim may not justify

a similar ruling brought pursuant to another constitutional

provision. See People v. Davis,

(finding the

juvenile defendant's sentence violated the eighth amendment but

declining to consider his state due process and proportionate

penalties challenges). In other words, a constitutional challenge

raised under one theory cannot be supported by decisional law

based purely on another provision. United States v. Lanier,

, 272 n.7 (1997). Accordingly, we reject defendant's

reliance on the Supreme Court's eighth amendment case law to

support his procedural and substantive due process claims."

¶ 13 In rejecting the argument that the automatic transfer statute violated the eighth

amendment and the proportionate penalties clause, the supreme court found that the provision is

not punitive in nature, rejecting the defendant's argument that the statute operated as a sentencing

statute. Id. ¶ 104. The court observed that it has repeatedly held that "access to juvenile courts is

not a constitutional right because the Illinois juvenile justice system is a creature of legislation."

Id.

¶ 14 The court noted that it had previously concluded that "the purpose of the transfer statute

is to protect the public from the most common violent crimes, not to punish a defendant. In

enacting the automatic transfer statute, the legislature has reasonably deemed criminal court to be

the proper trial setting for a limited group of older juveniles charged with at least one of five

serious named felonies." Id. ¶ 105 (citing People v. J.S.,

(1984)).

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"The mere possibility that a defendant may receive a potentially

harsher sentence if he is convicted in criminal court logically

cannot change the underlying nature of a statute delineating the

legislature's determination that criminal court is the most

appropriate trial setting in his case. We reject the connection

between the transfer statute and the imposition of harsher

punishment alleged by defendant as simply too attenuated to be

persuasive."

¶ 15 The supreme court held that "in the absence of actual punishment imposed by the transfer

statute, defendant's eighth amendment challenge cannot stand" and "[b]ecause the Illinois

proportionate penalties clause is co-extensive with the eighth amendment's cruel and unusual

punishment clause [citation], we also reject defendant's challenge under our state constitution."

Id. ¶ 106.

¶ 16 Under Patterson, defendant's identical challenge must fail. In his reply brief, defendant

maintains that Patterson was wrongly decided and this court should follow the dissent's

reasoning. However, even if we were to disagree with the well-reasoned analysis in Patterson,

which we do not, "[t]he appellate court lacks authority to overrule decisions of [the supreme]

court, which are binding on all lower courts." People v. Artis,

(2009).

¶ 17 Defendant next raises similar constitutional arguments in regard to the mandatory

minimum sentence for first degree murder, the mandatory firearm enhancement, and the truth-in-

sentencing provision, which result in a mandatory minimum sentence of 45 years. Defendant

contends that the imposition of this sentence on defendant, a juvenile offender, fails to allow the

trial court to have an opportunity to make "an individualized determination as to whether any of

7 No. 1-13-0985

these statutes should apply in light of [defendant's] age and individual culpability." Defendant

asserts that "the imposition of the harsh mandatory adult penalties imposed upon [defendant,] a

minor, violates the Eighth Amendment as well as the proportionate penalties clause of the

Illinois Constitution."

¶ 18 Defendant points to the convergence of three statutes for his argument. First, the

sentence for first degree murder is 20 to 60 years in prison. 730 ILCS 5/5-8-1(a)(1)(a) (West

2002). Next, under the firearm-enhancement statute, "if, during the commission of the offense,

the person personally discharged a firearm which proximately caused *** death to another

person, 25 years or up to a term of natural life shall be added to the term of imprisonment

imposed by the court." 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002). Finally, pursuant to the

truth-in-sentencing statute, a person serving a term of imprisonment for first degree murder

"shall receive no good conduct credit and shall serve the entire sentence imposed by the court."

730 ILCS 5/3-6-3(a)(2)(i) (West 2002). Based on the convergence of these sentencing statutes,

defendant, who was 16 years old at the time of the murder, faced a mandatory minimum sentence

of 45 years in prison, during which he would not be eligible for good-conduct credit. Defendant

argues that in light of the decisions in Roper, Graham, and Miller, this sentencing structure

violates the eighth amendment and the proportionate penalties clause. We disagree.

¶ 19 Unlike those cases, which involved the imposition of the death penalty (Roper) and a

mandatory life sentence without the possibility of parole (Graham and Miller) without allowing

the trial court any discretion in sentencing, the trial court in the instant case was able to consider

defendant's age and culpability in sentencing defendant. The trial court had the discretion to

impose a sentence between 45 and 85 years. At sentencing, the trial court detailed its reasoning

in imposing a sentence of 45 years.

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"In aggravation, of course, we have a young man 19 years

of age today standing before the Court, having been found guilty of

the most serious of crimes on the books in this state, first degree

murder, and the facts of the case are significant. What they reveal,

as I sit here recalling the facts, is a totally senseless, unprovoked

killing. [Defendant] came upon this victim in mid afternoon on a

city street at a place where he and his family had a right to be

certainly, in the presence of his family attempting to move, and

that man was virtually executed, he was. [Defendant], a young

man with some background as a juvenile, too young as an adult to

have accumulated an adult background, no explanation as to why

this occurred.

The factor of the deterrence, the law requires that you must

be removed from society for a good number of years, deterrence

for other young men similarly situated who might choose to

emulate or follow in the footsteps of [defendant], and those are

factors in aggravation, which the Court is dutybound [sic] to

consider.

And I look at factors in mitigation, and I cannot say that we

have a situation here where serious bodily harm or injury was

neither contemplated nor threatened, it was, and it was caused as

well, and while the ultimate injury, that of death, is implicit in all

homicide cases, the manner of death may be considered, as I have

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already indicated I have. I would have to search far and wide to

find evidence of provocation, justification, excuse, reasonable

explanations. There are none. All explanations here simply are

unreasonable. And while I do not have a crystal ball, it would be

difficult for me to sit here and predict that at some finite point

down the line [defendant] would be in a situation where this would

not happen again or this conduct would not recur. I simply do not

know. I cannot predict that.

We all are aware of the perimeters of the possible range of

sentencing here. They are substantial. Minimum sentence, he is

facing a sentence of 20 years to 60 years even without the gun and,

with the gun, an added 25 years to life. It is the feeling of this

Court that the minimum sentence in this case are [sic] sufficient to

provide the sanctions that the law must require for [defendant].

Accordingly, the Court will enter a judgment with a

sentence of 20 years, plus 25 years under the enhancements statute,

a total of 45 years, which is the minimum sentence that could be

imposed in this case."

¶ 20 In Miller, the Supreme Court concluded a mandatory life sentence without parole

precluded consideration of an offender's age, background, and relative culpability and would

likely result in a greater sentence than adults would serve. The Miller Court stated, "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

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for juveniles." Miller,

,

. That opportunity occurred in this case

when the trial court considered defendant's mitigating evidence and criminal history before

imposing the minimum sentence. The Supreme Court has not held that a mandatory minimum

sentence of 45 years violates the eighth amendment and we decline to extend their holding to the

circumstances of this case. Unlike this line of Supreme Court cases, the trial court had an

opportunity to use discretion in sentencing defendant.

¶ 21 We also note that the Illinois Supreme Court in People v. Davis,

,

considered the applicability of Miller to mandatory life sentences without the possibility of

parole for juveniles as a violation of the eighth amendment. The supreme court held that Miller

set forth a new substantive rule and a mandatory life sentence without parole for a juvenile could

be retroactively challenged. Id. ¶ 34-43. However, the supreme court made no reference to

extending Miller to be applicable beyond a mandatory life sentence without parole. Rather, the

court observed that "[a] minor may still be sentenced to natural life imprisonment without parole

so long as the sentence is at the trial court's discretion rather than mandatory." Id. ¶ 43.

Additionally, the supreme court in Patterson reiterated that it has "unanimously declined to

expand the narrow rule in Graham to all juveniles sentenced to life without parole for

homicides." Patterson,

(citing Davis,

). The

Patterson court further observed that "both this court and the United States Supreme Court have

closely limited the application of the rationale expressed in Roper, Graham, and Miller, invoking

it only in the context of the most severe of all criminal penalties. A prison term totalling 36

years for a juvenile who personally committed three counts of aggravated criminal sexual assault

does not fall into that category. We decline defendant's invitation to extend the Supreme Court's

eighth amendment rationale to the facts of this case." Id. ¶ 110. Here, the trial court had

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discretion to consider mitigating evidence before imposing a sentence and no eighth amendment

violation occurred.

¶ 22 When considering a constitutional challenge regarding the imposition of an adult

sentence, the Fourth District in People v. Pacheco,

, reasoned:

"The Supreme Court did not hold in Roper, Graham, or Miller the

eighth amendment prohibits a juvenile defendant from being

subject to the same mandatory minimum sentence as an adult,

unless the mandatory minimum sentence was death or life in prison

without the possibility of parole. Defendant was sentenced to

neither of these. The minimum 20-year term defendant faced in

this case does not compare with the death penalty or a mandatory

term of life in prison without the possibility of parole. The

sentencing range applicable to defendant in this case is not

unconstitutional pursuant to Roper, Graham, and Miller, and the

sentence defendant received violated neither the eighth amendment

nor the proportionate penalties clause." Id. ¶ 58.

¶ 23 We agree with the conclusion reached in Pacheco and adopt it in this case. We point out

that the same conclusion was recently reached in the Second District. People v. Cavazos,

(declining to extend holdings in Miller and Graham for

mandatory minimum sentencing for juvenile offenders). "Further, to the extent that the Supreme

Court decisions can be read broadly as requiring that, before sentencing a juvenile, the

sentencing body must have an opportunity to take into account the juvenile's youth at the time of

the crime, that requirement was satisfied here." Id. ¶ 100. As these cases show, defendant's 45-

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year sentence did not violate the eighth amendment because the trial court had an opportunity to

consider the factors in aggravation and mitigation, including defendant's age. Thus, the

mandatory minimum sentencing structure at issue is not unconstitutional.

¶ 24 Additionally, the Illinois Supreme Court has stated the "proportionate penalties clause is

coextensive with the cruel and unusual punishment clause." In re Rodney H.,

(2006). "A sentence does not offend the requirement of proportionality if it is

commensurate with the seriousness of the crime and gives adequate consideration to the

rehabilitative potential of the defendant." People v. St. Pierre,

(1992). For

the same reason his eighth amendment challenge failed, defendant's proportionate penalties

argument also cannot succeed.

¶ 25 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

¶ 26 Affirmed.

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