Opinion filed September 21, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-17-0705 v. ) Circuit No. 01-CF-86 ) KEITH BLAND, ) Honorable ) Carmen J. Goodman, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices Carter and Wright concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 The defendant, Keith Bland, appealed the denial of his motion for leave to file a successive

petition for postconviction relief.

¶2 I. BACKGROUND

¶3 The defendant was convicted of armed robbery and first degree murder after a jury trial.

He was sentenced to consecutive terms of imprisonment of 28 years and 43 years, respectively.

His conviction and sentence were affirmed on direct appeal. People v. Bland, No. 3-02-0942

(2004) (unpublished order under Illinois Supreme Court Rule 23). The facts underlying the defendant’s convictions are more fully detailed in that order, but essentially, the defendant and his

two codefendants planned to steal guns from the home of the defendant’s father. While committing

the robbery, one of the codefendants shot and killed the defendant’s stepmother.

¶4 The defendant filed a pro se petition for postconviction relief, which was dismissed by the

trial court as frivolous and patently without merit. The defendant filed an additional affidavit to

support his petition, which the trial court considered as a second postconviction petition, also

finding it to be frivolous and patently without merit. The defendant appealed both rulings, and this

court affirmed. People v. Bland, No. 3-05-0089 (2006) (unpublished order under Illinois Supreme

Court Rule 23).

¶5 In 2007, the defendant filed a motion for leave to file a successive postconviction petition,

alleging that his postconviction appellate counsel was ineffective for failing to argue several issues

in the appeal from the trial court’s denial of his initial postconviction petition. The trial court

denied the motion, and this court affirmed. People v. Bland, No. 3-07-0554 (2008) (unpublished

order under Illinois Supreme Court Rule 23).

¶6 On July 24, 2017, the defendant filed the instant pro se motion for leave to file a successive

postconviction petition, arguing that his 71-year sentence, a de facto life sentence, was

unconstitutional as applied to him. The defendant was 19 years old at the time of the murder. The

trial court denied the motion, and the defendant appealed.

¶7 II. ANALYSIS

¶8 The defendant argues that the trial court erred in denying him leave to file because Illinois

courts only recently recognized that the sentencing principles of Miller v. Alabama,

(2012), applied retroactively to de facto life sentences and potentially applied to those over 18.

The State contends that the trial court’s denial of leave was correct because the defendant did not

2 satisfy the cause-and-prejudice test in raising his as-applied challenge, since he was almost 20

years old when the crime was committed. The State also argues that the defendant forfeited the

issue because the defendant could have raised the issue on direct appeal.

¶9 Under section 122-1(f) of the Post-Conviction Hearing Act (725 ILCS 5/122-1(f) (West

2016)), a defendant must obtain leave of the trial court before he may obtain review of a second

or subsequent postconviction petition on its merits. People v. McDonald,

(2010). To obtain leave to file a successive petition, as a threshold requirement, the defendant must

satisfy the cause-and-prejudice test.

Under the cause-and-prejudice test, the defendant must

demonstrate “cause” for failing to raise the error in prior proceedings and actual “prejudice”

resulting from the claimed error.

“Cause” has been defined as an objective factor that impeded

defense counsel’s efforts to raise the claim in an earlier proceeding. “Prejudice” has been defined

as an error that so infected the entire trial that the defendant’s conviction violates due process.

The cause-and-prejudice test for successive postconviction petitions involves a higher standard

than the frivolous or patently without merit standard applied to first stage postconviction petitions.

People v. Smith,

. A defendant seeking leave to file a successive petition must

submit enough in the way of pleadings and documentation to allow a circuit court to make an

independent determination on the legal question of whether adequate facts have been alleged for

a prima facie showing of cause and prejudice. Id. ¶ 30. If a defendant fails to adequately allege

cause and prejudice, the circuit court does not reach the merits of his successive petition because

the cause-and-prejudice test is a procedural prerequisite to obtaining that review. People v. Handy,

. We review de novo the denial of leave to file a successive

postconviction petition. People v. Bailey,

.

3 ¶ 10 In terms of cause to bring an action under Miller, the defendant was convicted in 2002, 10

years prior to the decision in Miller. The State acknowledges this but argues that the defendant has

not shown cause why he waited five years after Miller to raise the claim. As our supreme court has

noted, Miller created a substantive constitutional rule that applies retroactively. People v. Buffer,

. In addition, the suggestion that Miller could be applied to those 18 years of

age and older was not made until 2015 in People v. Thompson,

, and Miller was

not extended to de facto life sentences until 2016 in People v. Reyes,

. Thus, we

find that the defendant has shown cause to file his 2017 petition for leave to file a successive

postconviction petition.

¶ 11 The State contends that the defendant cannot establish prejudice because (1) he was 19

years old and thus not a juvenile, when he committed the crime and (2) the trial court considered

the statutory factors in aggravation and mitigation, including rehabilitation, in sentencing the

defendant.

¶ 12 The eighth amendment of the United States Constitution guarantees individuals the right

not to be subjected to excessive sanctions. U.S. Const., amend. VIII; Miller,

. Like

the eighth amendment, the proportionate penalties clause of the Illinois Constitution embodies

concepts of fairness and proportionality, but it has been interpreted to provide broader protections

than the eighth amendment. Ill. Const. 1970, art. I, § 11; People v. Carrasquillo,

. That clause states that “[a]ll penalties shall be determined both according to the

seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11.

¶ 13 The defendant claims an as-applied challenge under Miller, contending that his 71-year

sentence violates both the eighth amendment of the United States Constitution and the

4 proportionate penalties clause of the Illinois Constitution. An as-applied challenge requires a

showing that the statute violates the constitution as it applies to the facts and circumstances of the

challenging party, while a facial challenge requires a showing that the statute is unconstitutional

under any set of facts. Thompson,

. Our supreme court, in People v. Harris,

, has foreclosed an eighth amendment facial challenge to offenders 18 years

of age and over. However, the court in Harris found that an as-applied challenge under the

proportionate penalties clause was premature on direct appeal in that case, and it suggested that an

as-applied challenge under Miller had not been foreclosed. Id. ¶ 53.

¶ 14 Since an as-applied challenge is fact specific, it is necessary for the record to be sufficiently

developed. Id. ¶ 39. In his petition for leave to file, the defendant alleged that he was only 19 years

old at the time of the crime, he was found guilty under a theory of accountability, and he had been

diagnosed with an antisocial personality disorder that exhibited symptoms similar to characteristics

of juveniles. The defendant also referenced the juvenile studies cited in People v. House,

, ¶ 95 (vacated for reconsideration in light of Harris,

) and on

remand in People v. House,

, ¶ 55, appeal allowed, No. 125124 (Ill.

Jan. 29, 2020). We find that the defendant pled enough facts to warrant further proceedings on his

claim that the tenets of Miller apply to him. See People v. Johnson,

(19-

year-old defendant’s motion to file successive postconviction petition alleged sufficient facts for

an as-applied challenge to survive dismissal). There is nothing in the record that indicates that the

trial court considered the defendant’s youth and its attendant characteristics as recognized in

Miller. The trial court is the most appropriate tribunal for the type of factual development necessary

for the defendant’s as-applied constitutional challenge. Thompson,

; see

People v. Minniefield,

. Thus, we grant the defendant’s motion for

5 leave to file his successive postconviction petition and remand for further proceedings consistent

with this opinion.

¶ 15 III. CONCLUSION

¶ 16 The judgment of the circuit court of Will County is reversed and remanded for further

proceedings.

¶ 17 Reversed and remanded.

6 No. 3-17-0705

Cite as: People v. Bland,

Decision Under Review: Appeal from the Circuit Court of Will County, No. 01-CF-86; the Hon. Carmen J. Goodman, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Lauren A. Bauser, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys James W. Glasgow, State’s Attorney, of Joliet (Patrick for Delfino, Thomas D. Arado, and Stephanie L. Raymond, of Appellee: State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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