NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

-UB

Order filed July 8, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) La Salle County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-14-0573 v. ) Circuit No. 99-CF-395 ) ROBERT CHRISTOPHER JONES, ) ) Honorable H. Chris Ryan, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Justice O’Brien concurred in the judgment. Justice Wright, specially concurred.

ORDER

¶1 Held: The trial court did not err in denying defendant’s pro se motion for leave to file a successive postconviction petition.

¶2 Defendant, Robert Christopher Jones, appealed from the trial court’s order denying leave

to file a successive postconviction petition. Defendant argued that the trial court erred in finding

that he failed to satisfy the cause and prejudice test. Specifically, defendant contended that his sentence constitutes a mandatory life sentence for a juvenile offender in violation of the United

States Supreme Court’s decision in Miller v. Alabama,

,

(2012).

¶3 Initially, this court affirmed the trial court’s judgment. People v. Jones,

. This court found that the trial court did not err in finding that defendant failed to satisfy

the cause and prejudice test for leave to file his successive postconviction petition. We found that

defendant did not receive a life sentence. In addition, we found that the sentence was not mandatory

given that defendant entered a fully negotiated plea.

¶4 In a supervisory order, the Illinois Supreme Court directed us to vacate that decision and

to reconsider it in light of People v. Buffer,

. In Buffer, the supreme court

determined that any sentence greater than 40 years’ imprisonment constitutes a de facto life

sentence.

¶5 Pursuant to the Illinois Supreme Court’s supervisory order, we vacate our prior judgment

in Jones, 2016 IL App (3d) 1405370-U, and this order will now stand as our disposition for this

matter. For the reasons stated below, we again affirm the dismissal of defendant’s motion for leave

to file a successive postconviction petition.

¶6 I. FACTS

¶7 At 16 years old, defendant was charged by indictment with eight counts of first degree

murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 1998)), two counts of armed robbery (id. § 18-2), one

count of residential burglary (id. § 19-3), and one count of home invasion (id. § 12-11). The

indictment alleged that defendant stabbed and killed George and Rebecca Thorpe, while

committing armed robbery, residential burglary, and home invasion. The indictment also alleged

that defendant, while armed with a knife, took property from the presence of George and Rebecca

-2- by use of force, entered their dwelling with the intent to commit theft while knowing them to be

present and intentionally caused them injury.

¶8 On May 19, 2000, pursuant to a fully negotiated plea agreement, defendant pled guilty to

one count of first degree murder (intentional murder of Rebecca), one count of residential burglary,

and two counts of armed robbery. The remaining counts were dismissed. The trial court

admonished defendant regarding the consequences of pleading guilty. After admonishing

defendant, the court found defendant’s plea to be knowingly and intelligently made. The parties

waived a hearing in mitigation and aggravation and waived the preparation of a presentence

investigation report. Pursuant to the agreement, the trial court sentenced defendant to concurrent

prison terms of 50 years for murder, 15 years for residential burglary and 30 years for each armed

robbery.

¶9 The factual basis presented at the guilty plea hearing established that defendant confessed

to entering George and Rebecca’s home at 2 a.m. to obtain money. Defendant was armed with a

knife. Defendant considered George and Rebecca to be his great aunt and uncle. Defendant said

he did not know how many times he stabbed George, but then went to Rebecca’s room and stabbed

her when she reached for the telephone. Defendant did not recall how many times he stabbed

Rebecca. Rebecca made “gurgling sounds,” so defendant put a pillow over her face to stop the

sounds. Defendant then took Rebecca’s purse and lockbox.

¶ 10 Defendant did not appeal his convictions, but he subsequently filed a pro se petition for

postconviction relief. Defendant argued that his trial counsel was ineffective and his sentence

violated his due process rights. After an evidentiary hearing, the trial court denied defendant’s

petition. Defendant appealed, and this court affirmed. People v. Jones, 3-02-0671 (2004)

(unpublished order under Supreme Court Rule 23).

-3- ¶ 11 Next, defendant filed a pro se successive postconviction petition. The petition alleged that

the automatic-transfer provision for juvenile offenders, and the truth-in-sentencing requirement

that he serve his entire sentence violated the constitutional principles announced in the United

States Supreme Court’s decisions in Miller v. Alabama,

,

(2012),

Graham v. Florida,

(2010), and Roper v. Simmons,

(2005). Two weeks

after filing his pro se successive postconviction petition, defendant filed a pro se motion for leave

to file his successive postconviction petition. Defendant alleged he forgot to include the motion

with his successive postconviction petition. The motion argued that he should be granted leave to

file his successive petition because the Miller line of cases had not been decided when he pled

guilty, and the statutory scheme under which he was sentenced was void. The trial court denied

defendant leave to file his successive petition.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant contends that the cause should be remanded for further

postconviction proceedings because recent case law (Miller, Roper, Graham) and changes in

Illinois sentencing law entitle him to file a successive petition. The Post-Conviction Hearing Act

(725 ILCS 5/122-1 et seq. (West 2014)) contemplates the filing of only one postconviction

petition. People v. Davis,

. Nevertheless, a successive petition for

postconviction relief can be considered on its merits if it meets the two-part cause and prejudice

test. 725 ILCS 5/122-1(f) (West 2014). “Cause” is defined as an “objective factor external to the

defense that impeded counsel’s efforts to raise the claim in an earlier proceeding” and “prejudice”

exists where the petitioner can show that the alleged constitutional error so infected his trial that

the resulting conviction violated due process. Davis,

.

-4- ¶ 14 Upon review, we find that defendant established “cause” based on the simple fact that

Miller, its progeny, and the recent changes in Illinois sentencing law were not established at the

time he filed his first postconviction petition. Id. ¶ 42. Nevertheless, we hold that defendant failed

to establish prejudice because he waived any constitutional challenge to his sentence by fully

negotiating his plea.

¶ 15 Miller holds that a mandatory life sentence for a juvenile violates the eighth amendment

prohibition against cruel and unusual punishment. Miller,

. Miller does not prohibit

sentencing a juvenile offender to life imprisonment, but instead, requires the sentencing court to

consider a juvenile’s youth and attendant circumstances prior to sentencing.

This principle

applies not only to a sentence of life imprisonment, but also de facto life sentences. People v.

Reyes,

. In Buffer, The Illinois Supreme Court drew a bright-line rule that

a sentence greater than 40 years constitutes a de facto life sentence. Buffer,

.

Miller applies retroactively. People v. Davis,

.

¶ 16 In analyzing defendant’s claim, we note that neither the United States Supreme Court nor

the Illinois Supreme Court has extended the holding in Miller to sentences that result from a fully

negotiated plea. To the contrary, under Illinois law, defendant waived any claim of a constitutional

error by virtue of his fully negotiated plea. Defendant entered into a plea agreement in which he

stipulated to a de facto life sentence. In so doing, defendant relinquished any rights to challenge

nonjurisdictional errors or irregularities, including constitutional errors. People v. Townsell,

(2004) (citing People v. Peeples,

(1993)). A guilty plea

“represents a break in the chain of events that had preceded it,” and a defendant who has pleaded

guilty may not claim his constitutional rights were violated before he entered his plea. People v.

Wendt,

(1996) (citing Tollet v. Henderson,

(1973).

-5- Not only did defendant waive his right to challenge his sentence, he also affirmatively waived his

right to present evidence in mitigation and the preparation of a presentence investigation report.

As a result, defendant waived any claim of a constitutional violation premised on the holding in

Miller. He cannot now argue that his sentence is unconstitutional under Miller.

¶ 17 In short, the sentencing court never denied defendant the opportunity to offer mitigation

evidence of his youth and attendant characteristics. Instead, he affirmatively waived that right as

part of a fully negotiated plea agreement. A guilty plea entered on the competent advice of counsel

waives all constitutional objections to the conviction. Townsell,

. His present

argument amounts to a challenge that he was never afforded an opportunity to present evidence

that he never offered and to request relief he never sought.

¶ 18 In reaching this conclusion, we reject defendant’s reliance on recent changes in Illinois

sentencing law. The first statute cited by defendant (730 ILCS 5/5-4.5-105 (West 2015)) requires

sentencing judges to consider certain factors that distinguish juvenile offenders from adult

offenders, and exercise discretion when deciding to impose a statutory 25-years-to-life gun

enhancement for juvenile offenders. Notably, the statute relates to gun enhancement sentences and

does not extend to first degree murder sentences. The other statute (730 ILCS 5/5-8-1(a)(1)(c)

(West 2014)) was amended to limit mandatory life sentences to adult offenders as reflected in

Miller. As discussed above, defendant waived his constitutional argument by virtue of his fully

negotiated plea.

¶ 19 Despite the above, defendant requests that we consider the context in which he pled guilty.

Specifically, defendant calls our attention to the possible sentence he faced had he gone to trial

and been convicted of two counts of first degree murder: a mandatory natural life sentence. See

730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1998). According to defendant, he was forced to plead guilty

-6- in order to avoid a mandatory life sentence—a sentence that violates Miller. Defendant’s argument

overlooks the fact that this sentencing provision was not actually applied to him in light of the fact

he negotiated (and agreed) to plead guilty to a single count of first degree murder. The mere fact

that defendant faced the possibility of a mandatory life sentence does not mean that defendant’s

50-year negotiated sentence violates the principles established in Miller, much less establish

prejudice for leave to file a successive postconviction petition.

¶ 20 To the extent defendant suggests that facing the possibility of a mandatory life sentence

rendered his plea involuntarily made, we note that the trial court admonished defendant prior to

accepting his plea. The court found defendant’s plea to be knowingly and voluntarily made and

accepted his plea. We agree that his plea was voluntarily and intelligently made. A plea is not

invalid simply because “the maximum penalty then assumed applicable has been held inapplicable

in subsequent judicial decisions.” Brady v. U.S.,

(1970). In other words, Miller’s

holding that mandatory life sentences for juveniles are unconstitutional does not affect the

voluntariness of defendant’s plea.

¶ 21 III. CONCLUSION

¶ 22 For the foregoing reasons, we affirm the judgment of the circuit court of La Salle County.

¶ 23 Affirmed.

¶ 24 JUSTICE WRIGHT, specially concurring:

¶ 25 I concur in all respects with the majority’s disposition. I write separately to point out that

the sentencing relief defendant has requested in his successive postconviction petition is

unfounded and has no basis in law.

¶ 26 Here, defendant requests a retrospective hearing to have the circuit court exercise its

discretion, contrary to statute, and decide whether this double homicide should have been

-7- addressed by the juvenile division of the circuit court rather than moving forward as a criminal

prosecution. Absent the exercise of judicial discretion, defendant claims he did not receive due

process. Respectfully, based on this record, I submit that it is extremely unlikely that any judge

would have concluded that these two senseless murders and various other crimes did not merit the

criminal prosecution of this youthful offender in an adult court setting. Moreover, defendant does

not claim that if the trial court had been allowed to exercise its discretion, the double homicide

would have remained a juvenile court proceeding subject to the dispositional limitations of the

Juvenile Court Act. Even if due process required the State to begin proceedings against this

youthful offender in juvenile court, which it does not, the error would be harmless. See People v.

Jones,

(1979) (holding that indicting a minor prior to the court’s transfer of the

case from juvenile court to criminal court, while error, is not necessarily reversible error).

Therefore, I conclude the request for a retrospective hearing on whether this matter should have

resulted in a criminal prosecution is entirely meritless.

¶ 27 In addition, defendant is equally unentitled to a new sentencing hearing based on the

procedural posture of this appeal. As the majority emphasizes, this was a fully negotiated guilty

plea. In order to have the trial court consider his youthful characteristics for purposes of sentencing,

defendant would have to request to withdraw his guilty plea, a plea which resulted in a sentence

defendant approved as part of a fully negotiated package. Presumably, defendant has not adopted

this approach because that process would result in the reinstatement of the various counts related

to the murder of a second victim that were dismissed as part of the original plea agreement.

¶ 28 For these reasons, I agree with the majority’s analysis and would add that the relief

requested on the face of this successive postconviction petition was doomed from the outset.

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