THIRD DIVISION September 30, 2020

No. 1-18-0190

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). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 00 CR 22644 ) TRAVIS ASHBY, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge Presiding. ) ______________________________________________________________________________

PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court of Cook County summarily dismissing defendant’s postconviction petition is reversed; defendant’s postconviction petition which alleged his de facto life sentence violated the eighth amendment of the United States Constitution and the proportional penalties clause of the Illinois Constitution was not based on an indisputably meritless legal theory or fanciful factual allegations.

¶2 Defendant appeals from the trial court’s first stage summary dismissal of his pro se

postconviction petition filed pursuant to section 5/122-1 of the Post-Conviction Hearing Act (725

ILCS 5/122-1 (West 2016)). In his petition, defendant, who was 22 years old at the time of his

offense, argued that his 48-year sentence for first-degree murder and personally discharging a

firearm was a de facto life sentence which violated the eighth amendment of the United States 1-18-0190

Constitution and the proportionate penalties clause of the Illinois Constitution. Defendant argues

the trial court failed to consider defendant’s youth and its attendant characteristics in arriving at

his sentence. For the reasons set forth below, we reverse the trial court’s judgment and remand

for further proceedings under the Post-Conviction Hearing Act.

¶3 BACKGROUND

¶4 Defendant, Travis Ashby, appeals the trial court’s judgment summarily dismissing his

initial petition for postconviction relief. Defendant was found guilty by a jury of first-degree

murder on an accountability theory and for personally discharging a firearm. Defendant was

sentenced to 48 years’ imprisonment, 28 years for murder and an additional 20 years for

personally discharging a firearm. On March 30, 2007, defendant’s conviction and sentence were

affirmed on direct appeal in which defendant alleged errors unrelated to the instant appeal

(People v. Ashby, No. 1-04-0087 (2007) (unpublished order under Illinois Supreme Court Rule

23)). Leave to appeal to the Illinois Supreme Court was denied on September 26, 2007.

¶5 Defendant’s Trial and Sentencing Hearing

¶6 The relevant evidence and details from defendant’s trial and sentencing hearing are as

follows. In the early morning of January 8, 2000, defendant, along with Antolito Jones and

Melvin Jones murdered the victim, Jerry Green. Defendant, Antolito, and Melvin were members

of the “Third Ward” faction of the Gangster Disciples. Though the victim was not a gang

member, the State’s theory of the case posited that the victim was killed as part of an internal

dispute between the Third Ward and the “No Limits” faction of the Gangster Disciples.

Defendant, who was born on April 14, 1977, was 22 years old at the time of the murder.

¶7 Defendant gave several different statements to police concerning the events that

transpired on January 8, 2000, but ultimately admitted he supplied Antolito’s gun which was

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used in the shooting murder of the victim, he was present at the scene, and was himself armed

with a gun which he discharged during the offense. Defendant’s videotaped statement was

published to the jury.

¶8 In support of the defense’s theory that defendant’s statements to police were given

because he had been isolated for over 36 hours and because of his suggestibility and cognitive

limitations, Dr. Antoinette Kavanaugh, a clinical psychologist, was called as an expert witness.

Dr. Kavanaugh opined that defendant was suggestible, had significantly below average

intelligence, and was cognitively limited. She did not believe defendant was malingering. The

State responded by providing expert testimony from Dr. Timothy Cummings, a forensic clinical

services psychologist, who testified there was no evidence defendant was suggestible, and was,

instead malingering.

¶9 At defendant’s sentencing hearing, the trial court addressed mitigating and aggravating

factors including defendant’s “borderline intellectual functioning” as opined by Drs. Kavanaugh

and Cummings; his criminal background consisting of three prior felony convictions for

nonviolent offenses; his family ties; and his gang involvement. In sentencing defendant to 28

years for murder and an additional 20 years for personally discharging a firearm, the trial court

found “the most important factor about [defendant’s] involvement” in the murder was “that he

supplied not just the murder weapon, but three guns; one for himself and one for each of the

other two individuals, who, in fact, shot and killed the victim in this case.” The court also found

defendant was not “merely accountable” as argued by defense counsel but was “majorly

accountable and involved” in the case. Aside from referring to defendant as a young man, the

trial court did not mention defendant’s age in its explanation of defendants 48-year sentence.

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¶ 10 Defendant appealed both his conviction and sentence which, as noted above, were

affirmed.

¶ 11 Postconviction Petition

¶ 12 On October 25, 2017, defendant filed a pro se postconviction petition pursuant to section

5/122-1 of the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 2016)), arguing his 48-

year sentence violated the eighth amendment of the United States Constitution and the

proportionate penalties clause of the Illinois Constitution because it was a de facto life sentence

and the trial court failed to consider defendant’s youth and its attendant characteristics in arriving

at his sentence.

¶ 13 On December 15, 2017, the trial court entered a judgment summarily dismissing

defendant’s postconviction petition finding defendant’s claims were “frivolous and patently

without merit.”

¶ 14 Defendant timely appealed. This appeal followed.

¶ 15 ANALYSIS

¶ 16 On appeal, defendant argues the trial court erred in summarily dismissing his post-

conviction petition. Defendant acknowledges he was not a juvenile at the time of his offense but

argues his 48-year sentence is a de facto life sentence and thus the protections afforded juveniles

in sentencing under Miller v. Alabama,

(2012), should be extended to him.

Specifically, defendant argues the sentencing court was required to consider the transient

qualities of youth and their enhanced amenability to rehabilitation under the eighth amendment

and rehabilitation clause of Article I, Section 11 of the Illinois Constitution. Defendant states on

appeal that both his constitutional challenges are as-applied challenges.

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¶ 17 We review de novo a first stage summary dismissal of a postconviction petition. People

v. Patterson,

, ¶ 14.

¶ 18 Post-Conviction Hearing Act

¶ 19 The Post-Conviction Hearing Act (Act), 725 ILCS 5/122-1 et seq. (West 2016), provides

a mechanism for collateral attack of a conviction or sentence allowing for inquiry into

constitutional claims relating thereto which were not, and could not be, adjudicated during the

trial or determined on appeal. People v. House,

, ¶ 25.

“For cases not involving the death penalty, the Act sets forth a three-stage

process for hearing a petitioner’s constitutional claims. [Citation.] At the first

stage, the circuit court independently reviews the petition and determines whether

the petition is frivolous or patently without merit. [Citations.] A petition may be

summarily dismissed at the first stage as frivolous and patently without merit

‘only if the petition has no arguable basis either in law or in fact.’ [Citation.] A

petition lacks an arguable basis in law or fact if it is based on ‘an indisputably

meritless legal theory or a fanciful factual allegation.’ [Citation.] Because most

petitions at the first stage are drafted by defendants with little legal knowledge or

training, a defendant need only present a limited amount of detail in the petition to

survive summary dismissal by the circuit court. [Citation.] That is, defendants

only need to set forth the ‘gist’ of an arguably constitutional claim to meet the

relatively low factual threshold to satisfy the first stage under the Act. [Citation.]”

Patterson,

.

¶ 20 In first stage postconviction proceedings the defendant is not required to make “a

substantial showing of a constitutional violation” nor is the defendant required to “demonstrate”

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or “prove” the alleged constitutional violation to avoid dismissal. People v. Tate,

. At the first stage of postconviction proceedings, all well-pleaded allegations in the

petition are construed as true and the court may not engage in any factual determinations or

credibility findings. People v. Plummer,

(2003).

¶ 21 Eighth Amendment Constitutional Challenges Applicable to Juveniles

¶ 22 Having established defendant’s burden at the first stage of postconviction proceedings,

we turn to the history of caselaw which have paved the way for the constitutional challenges

raised by defendant in his postconviction petition.

¶ 23 The eighth amendment prohibits “cruel and unusual punishments” and is applicable to the

states through the fourteenth amendment. U.S. Const. amend. VIII; People v. Davis,

.

“The eighth amendment’s ban on excessive sanctions flows from the basic

principle that criminal punishment should be graduated and proportioned to both

the offender and the offense. [Citations.] To determine whether a punishment is

so disproportionate as to be ‘cruel and unusual,’ a court must look beyond history

to ‘the evolving standards of decency that mark the progress of a maturing

society.’ ”

¶ 24 Following a line of United States Supreme Court decisions applying the eighth

amendment’s ban on “cruel and unusual punishments” to juvenile sentences, the Court in Miller

v. Alabama,

(2012), held that the imposition of a mandatory sentence of life

without the possibility of parole for a juvenile offender who commits murder without

consideration of the defendant’s youth and its attendant characteristics violates principles of

proportionality and thus the eighth amendment’s ban on cruel and unusual punishment.

at

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479-80, 489. It was subsequently decided that Miller applied retroactively to collateral review

cases. See Montgomery v. Louisiana,

(2016); see also Davis,

.

¶ 25 Accordingly, Miller and Montgomery provide that before a juvenile offender may be

sentenced to life imprisonment without parole, the trial court must consider the juvenile’s “youth

and its attendant characteristics” and find his or her conduct “showed irretrievable depravity,

permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.”

People v. Holman,

. In conducting this analysis, the Court in Miller

outlined a non-exclusive list of characteristics to be considered as follows:

“(1) the juvenile defendant’s chronological age at the time of the offense and any

evidence of his particular immaturity, impetuosity, and failure to appreciate risks

and consequences; (2) the juvenile defendant’s family and home environment; (3)

the juvenile defendant’s degree of participation in the homicide and any evidence

of familial or peer pressures that may have affected him; (4) the juvenile

defendant’s incompetence, including his inability to deal with police officers or

prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile

defendant’s prospects for rehabilitation.”

citing Miller,

.

¶ 26 Miller Protections Extended to De Facto Life Sentences for Young Adults

¶ 27 In People v. Reyes,

, our supreme court extended Miller protections

holding “that sentencing a juvenile offender to a mandatory term of years that is the functional

equivalent of life without the possibility of parole [, a de facto life sentence,] constitutes cruel

and unusual punishment in violation of the eighth amendment.” Id. at ¶ 9. In Holman, our

supreme court again extended Miller claims to include not just juvenile mandatory de facto life

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sentences, but also juvenile discretionary de facto life sentences. Holman,

.

Thereafter, our supreme court in People v. Buffer,

, determined what constitutes

a de facto life sentence and drew the line at 40 years concluding such “a prison term is long

enough to be considered de facto life without parole” for juvenile offenders, absent evidence of

incorrigibility. Id. at ¶ 40. The Buffer court explained that this “specific number does not

originate in court decisions, legal literature, or statistical data.” Id. Rather, the court stated, this

number originates from the legislature who enacted a juvenile sentencing statute which imposes

a 40-year minimum sentence for juveniles convicted of specified first-degree murders that would

justify natural life imprisonment for adult offenders and thus “evidently believed that this 40-

year floor for juvenile offenders who commit egregious crimes complies with the requirements

of Miller.” Id. at ¶¶ 39-40.

¶ 28 Relevant to our analysis here, we further note Justice Burke’s special concurrence in

Buffer. There, Justice Burke stated what constitutes a de facto life sentence can be determined

from a “calculation—it is when the defendant’s age at the earliest projected time of release

exceeds an incarcerated minor’s average life expectancy.” Id. at ¶ 65 (Burke, J., specially

concurring). Justice Burke further concluded the maximum sentence that should be imposed on

juveniles is one that allows release at age 55 based on statistics for the average life expectancy of

incarcerated individuals. See id. at ¶¶ 65-67.

¶ 29 Miller Protections Sought by Young Adults

¶ 30 Our Supreme Court in People v. Thompson,

, and People v. Harris,

, has determined that a young adult offender bringing an “as applied” challenge

seeking Miller protections requires an evidentiary hearing. In Thompson, our supreme court was

asked to determine whether the “defendant’s as-applied [eighth amendment] constitutional

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challenge to his sentence is procedurally barred or forfeited because the defendant failed to

include [the as-applied challenge to his mandatory natural life sentence under Miller] in his 2-

1401 [(735 ILCS 5/2-1401 (West 2010))] petition.” Thompson,

. In the

appeal of his 2-1401 petition, the defendant, who was 19 at the time of his offense, requested for

the first time, the rationale of Miller be extended beyond minors under the age of 18. Id. at ¶ 17.

The appellate court affirmed the trial court’s dismissal of the defendant’s petition declining to

address the substance of his Miller claim finding the as-applied challenge procedurally barred.

Id. at ¶ 18. Our supreme court affirmed the appellate court’s decision on the basis that the

defendant’s as-applied constitutional challenge to his sentence was forfeited as it “is not a claim

recognized by any of our precedents as exempt from the typical procedural bars of section 2-

1401.” Id. at ¶ 35. While concluding the “defendant cannot raise his as-applied constitutional

challenge to his sentence under Miller for the first time on appeal from dismissal of his section 2-

1401 petition” the court stated, without expressing opinion on the merits of any future claim, the

defendant “is not necessarily foreclosed from renewing his as-applied challenged in the circuit

court” in a subsequent proceeding under “the Post-Conviction Hearing Act (725 ILCS 5/122-1 et

seq. (West 2012) *** expressly designed to resolve constitutional issues, including those raised

in a successive petition.” Id. at ¶ 44.

¶ 31 In Harris, our supreme court further opened the door for the extension of Miller

protections to young adults under both the eighth amendment to the United States Constitution,

(U.S. Const., amend. VIII) and article I, section 11 of the Illinois Constitution (Ill. Const. 1970,

art. I, § 11) “commonly referred to as the proportionate penalties clause.” Harris,

. The defendant in Harris was convicted of first-degree murder, attempt first-

degree murder, and aggravated battery with a firearm and was sentenced to a mandatory

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minimum aggregate term of 76 years’ imprisonment. Id. at ¶ 1. The defendant was 18 years, 3

months of age at the time of his offenses. Id. The defendant appealed his sentence raising an as-

applied challenge under the proportionate penalties clause and a facial eighth amendment

challenge. Id. at ¶¶ 37, 53. In analyzing both constitutional claims the court noted the “critical”

distinction between facial and as-applied challenges stating:

“A party raising a facial challenge must establish that the statute is

unconstitutional under any possible facts, while an as-applied challenge requires a

showing that the statute is unconstitutional as it applies to the specific facts and

circumstances of the challenging party. [Citations.]

All as-applied constitutional challenges are, by definition, dependent on

the specific facts and circumstances of the person raising the challenge.

Therefore, it is paramount that the record be sufficiently developed in terms of

those facts and circumstances for purposes of appellate review. [Citations.] We

have reiterated that:

A court is not capable of making an as-applied determination of

unconstitutionality when there has been no evidentiary hearing and no

findings of fact. [Citation.] Without an evidentiary record, any finding

that a statute is unconstitutional as-applied is premature. [Citations.]”

(Internal quotations marks omitted.) Id. at ¶¶ 38-39, 52-53.

¶ 32 With respect to the defendant’s as-applied challenge under the proportionate penalties

clause, the Harris court explained that because the defendant’s as-applied claim was not raised in

the trial court and he was a young adult such that “Miller does not apply directly to his

circumstances[,]”, the record needed to “be developed sufficiently to address defendant’s claim

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that Miller applied to his particular circumstances.” Id. at ¶¶ 45-48. The court declined to

remand the matter for an evidentiary hearing and, as in Thompson, stated the defendant’s claim

could more appropriately be brought in another proceeding under the Post-Conviction Hearing

Act which specifically allows for raising constitutional questions dependent on facts not found in

the record. Id. at ¶ 48.

¶ 33 The court concluded the defendant’s eighth amendment facial challenge contending that

the protections for juveniles recognized in Miller should be extended to all young adults under

the age of 21 also failed. Id. at ¶¶ 53-61. Here, the court stated:

“[F]or sentencing purposes, the age of 18 marks the present line between

juveniles and adults. As an 18-year-old, defendant falls on the adult side of that

line. Accordingly, defendant’s facial challenge to his aggregate sentence under

the eighth amendment necessarily fails.” Id. at ¶ 61.

¶ 34 While unequivocally closing the door on eighth amendment facial challenges based on

Miller to young adults, we do not read Harris to foreclose an as-applied Miller challenge by a

young adult offender. On this point, we note the Harris court distinguished the defendant’s

eighth amendment facial challenge from an as-applied eighth amendment challenge stating:

“As noted previously, facial and as-applied constitutional challenges are

not interchangeable. An as-applied challenge requires a showing that the statute

is unconstitutional as it applies to the challenging party’s specific circumstances.

[Citation.] In contrast, a facial challenge requires the challenging party to

establish that the statute is unconstitutional under any possible set of facts.

[Citation.]

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Defendant’s claim is a facial challenge. He does not rely on his particular

circumstances in challenging his sentence under the eighth amendment, but rather

contends that the eighth amendment protection for juveniles recognized in Miller

should be extended to all young adults under the age of 21. *** To the extent

that defendant may have intended to raise an as-applied challenge under the

eighth amendment, that claim would fail for the same reason his challenge under

the Illinois Constitution failed, because no evidentiary hearing was held and no

findings of fact were entered on how Miller applies to him as a young adult.” Id.

at ¶¶ 52-53.

¶ 35 We read our supreme court’s precedents to set out the following procedure for young

adults raising a claim that Miller protections apply to them:

“(i) under Harris, a young adult defendant must plead, and ultimately

prove, that his or her individual characteristics require the application of

Miller;

(ii) if, and only if, the young adult makes this showing, then the trial court

goes on to consider whether the initial sentencing hearing complied with

Miller, ***; and

(iii) if the initial sentencing hearing was Miller-compliant, then the trial

court can reject the defendant’s claim ***; or if the initial sentencing

hearing was not Miller-compliant, then the trial court should order

resentencing.” People v Ruiz,

, ¶ 52.

¶ 36 Defendant’s As-Applied Constitutional Challenges

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¶ 37 As instructed by Harris and Thompson, defendant has raised his as-applied constitutional

challenges under the eighth amendment and proportionate penalties clause in a postconviction

proceeding under the Act. Defendant’s postconviction petition contains detailed, well-cited legal

argument, and research articles discussing the differences between juveniles and adults. The

petition cites articles noting brain development remains incomplete until the mid-20s.

¶ 38 Defendant here argues he has received a de facto life sentence stating “He will be 7[0]

years of age at the completion of his sentence.” We note defendant’s 48-year sentence is beyond

the 40-year floor established in Buffer for juvenile de facto life sentences. See Buffer,

. We also point to Justice Burke’s special concurrence in Buffer explaining a

de facto life sentence can be calculated by determining when “the defendant’s age at the earliest

projected time of release exceeds an incarcerated minor’s average life expectancy” such that a

maximum sentence imposed on juveniles would allow release at age 55 based on average life

expectancy of incarcerated individuals statistics. Id. at ¶¶ 65-67. This suggested de facto life

sentence calculation only gives further credence to defendant’s challenge here where he would

be incarcerated from age 22 through age 70.

¶ 39 Defendant’s petition was summarily dismissed as being frivolous and patently without

merit by the trial court in first stage proceedings. Thus, on review, we are tasked with

determining whether defendant’s petition set forth a gist of an arguably constitutional claim not

based on indisputably meritless legal theory or fanciful allegations. See Patterson,

. Here, we do not conclude the petition filed in this case is based on

indisputably meritless legal theory or fanciful allegations.

¶ 40 The State argues this court “already rejected the precise claim [defendant] is making here

in the case of People v. Handy,

, and should now follow its prior

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ruling.” However, we find Handy distinguishable because Handy involved a successive

postconviction petition filed by a young adult where the petitioner was required to meet the

higher standard of the cause and prejudice test. See id. at ¶¶ 1-2. In this case, defendant filed an

initial petition. In contrast to Handy, to avoid a summary dismissal defendant here was only

required to state a gist of a constitutional violation. The petition was not subject to summary

dismissal unless it was based upon a meritless legal theory or fanciful factual allegations.

¶ 41 We find both defendant’s constitutional claims have an arguable basis in fact and law. In

his petition defendant outlines the evolution of and continued application of Miller protections

which he argues should be afforded to him under both the eighth amendment and proportionate

penalties clause to find his sentence unconstitutional.

¶ 42 While we agree with the State that defendant’s mental health was considered, it is not

clear that all of the Miller factors were considered. In fact, at sentencing, aside from referring to

him as a young adult, the trial court made no mention of defendant’s age and little emphasis was

placed on this element during argument by counsel. Had the trial court held a hearing to

specifically address the Miller factors, defendant contends he may have received a lesser

sentence.

¶ 43 Accordingly, we conclude defendant, at this first stage where he is not required to prove

his case and his allegations are to be accepted as true, has made the gist of an arguably

constitutional claim that his sentence violates the eighth amendment and proportionate penalties

clause as applied to him. See Patterson,

. Therefore, we reverse

the trial court’s summary dismissal of defendant’s postconviction petition and remand the cause

back to the trial court for second stage proceedings to give defendant an opportunity to convince

the trial court that Miller applies to him.

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¶ 44 We emphasize that we express no opinion as to the actual merits of defendant’s petition,

only that it should be advanced to the second stage of postconviction review.

¶ 45 CONCLUSION

¶ 46 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed

and remanded for appointment of postconviction counsel and second-stage postconviction

proceedings.

¶ 47 Reversed and remanded.

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