FIRST DISTRICT SIXTH DIVISION September 11, 2020

No. 1-17-3016

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 06 CR 12661(01) ) GEORGE GOMEZ, ) Honorable ) Steven J. Goebel, Defendant-Appellant. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Connors concurred in the judgment and opinion. Presiding Justice Mikva dissented, with opinion.

OPINION

¶1 Defendant, George Gomez, appeals the judgment of the circuit court denying his motion

for leave to file a successive postconviction petition. On appeal, defendant contends that he should

have been granted leave to file where his successive petition and supporting documents established

cause and prejudice on the issue of whether his de facto life sentence, for an offense he committed

when he was 18 years old, violated the eighth amendment to the United States Constitution (U.S.

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

1970, art. I, § 11), as applied to him. For the following reasons, we affirm.

¶2 I. JURISDICTION

¶3 The circuit court denied defendant’s motion on September 6, 2017. He filed his notice of

appeal on October 4, 2017. Accordingly, this court has jurisdiction pursuant to article VI, section No. 1-17-3016

6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 651(a)

(eff. July 1, 2017), governing appeals in postconviction proceedings.

¶4 II. BACKGROUND

¶5 The following are facts relevant to this appeal. Defendant and codefendant, Misael Juarez,

were tried separately for the murder of Ivan Sanchez. On September 19, 2004, Ivan and his

girlfriend, Michelle Davila, sat in his car eating food from Wendy’s. His car was parked next to

an alley across the street from his home, near a car dealership. Ivan was eating his sandwich when

he stopped abruptly and tried to turn the ignition to start his car. When she asked what was wrong

and he did not answer, Davila looked through the rear driver’s side door window and saw a man

wearing a white handkerchief, “creeping up on us.” Although the lower part of his face was

covered, Davila could see his eyes. She stated that the man held a gun, more of a semi-automatic

weapon than a revolver. Ivan began pleading for his life, stating that they had the wrong person

and he was not in a gang. The man responded “something killer,” stepped back, and fired at least

six times through the driver’s side window. Davila jumped out of the car and fell to the ground.

She saw the man run toward Ivan’s house and the alley. She identified defendant as that man.

¶6 Davila picked defendant’s photo out of an array of 35 photos of Hispanic men showing the

lower part of their faces covered. Later, she went to the police station and viewed a lineup of four

men, with their noses and the lower parts of their faces covered. Davila identified defendant as the

person who shot Ivan. She recognized the eyes because she got a good look at the shooter’s eyes.

¶7 On cross-examination, Davila acknowledged that on the night of the shooting, she had

“smoked a blunt” approximately 45 minutes to an hour before the incident. However, she testified

that she was not high at the time because she had eaten some food and, with the adrenaline she felt

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at the time, any high would be gone. Davila also acknowledged that after she rolled out of the car,

she could still hear shots being fired but she could not see the person who was firing at that point.

When questioned whether she was 100 percent sure of her identification of defendant as the

shooter, Davila answered that she was “ninety percent sure.” When defense counsel asked whether

“there is a little bit of doubt there,” Davila responded, “There’s always doubt.”

¶8 Luis Santa testified with help from a sign language interpreter. He testified that on

September 19, 2004, shortly before 11 p.m., he was walking on Cicero Avenue when a red Probe

stopped alongside of him. There were two individuals in the car, and neither wore anything over

their faces. One of the men got out of the car and said “Styler killer” to Santa. Santa understood

that to be a gang-related reference. The man said “Disciple killer” and “Styler killer” again, and

Santa waved his hands to indicate “no no.” The driver told the man to leave Santa alone because

he was “crazy.” Santa testified that the man had a gun in his waistband, but he never took out the

gun. The interaction lasted approximately three minutes. Santa identified defendant in court as the

man who approached him.

¶9 After the car left, Santa continued to walk north on Cicero to his mother’s house. Around

11:20 p.m., he saw the same red car driven by the same driver he had seen earlier. He was scared

that the man would come back to hurt him so he watched from a used car lot across the street. He

saw a man walk to the driver’s side of a dark blue parked car. The man said something to the driver

of that car and then fired his gun five times. At the time, the shooter had a white handkerchief

covering his face below his eyes. Santa saw a woman get out of the car and try to hide under the

car.

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¶ 10 Santa ran away after the shooting because he was scared. A few days later he told a friend

what he had seen. On April 18, 2006, the police came to his mother’s house to talk to him, but

Santa ran away because he was scared. The police caught him about a block away. Santa viewed

a photo array and identified the driver and the shooter. He identified defendant as the shooter.

¶ 11 Defendant was 18 years old at the time of the shooting. He was interviewed at the police

station. After being advised of his Miranda rights, defendant admitted his involvement in the

incident. Defendant stated that he was driving a red Ford Probe, his mother’s car, on the night of

the shooting. Defendant knew Juarez had a gun when he dropped him off in the alley. Juarez told

him that he was going to “check somebody,” meaning he was going to see if anyone in the area

was in a gang. Defendant acknowledged that if Juarez found a person from a rival gang, he would

shoot that person. Defendant turned up his music and watched Juarez run in front of him before he

left “to meet somebody.” Later, he picked up Juarez in the middle of the block.

¶ 12 Although defendant acknowledged that the shooting of gangbangers is “how it goes on the

streets,” he stated that he did not know Juarez would shoot anyone. When Juarez got back into the

car, he told defendant that he shot someone. Defendant stated that he was only driving the car and

at no time did he possess a weapon or fire a weapon. He also denied that he gave the gun to Juarez.

¶ 13 After closing argument, the trial court found defendant guilty of first degree murder on a

theory of accountability. The court found the State’s witnesses credible, as well as Santa’s

identification of defendant as the man with the gun who talked to and threatened him. However,

the court “was not quite sure about” the witnesses’ identification of the shooter, in light of

defendant’s “adamant” statement that he was the driver, not the shooter. The trial court noted that

although Davila was 90 percent sure of the shooter’s identity, “she did say there’s always doubt.”

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Santa “was a ways away. I’m not completely sure, he could have had assumed it was the defendant

from seeing him earlier with the gun and just assumed it was him, or it could have been the

codefendant. He was a ways away.” What the trial court did not doubt was that defendant

“participated in the murder of Ivan Sanchez.”

¶ 14 Defendant filed a motion for a new trial. At the hearing, defense counsel argued that the

witnesses’ identifications were not reliable. Counsel pointed out that although there was artificial

lighting in the area, it was late at night. Santa observed the shooting from across the street, in the

parking lot of a used car dealership. Also, from Santa’s vantage point, his view would have been

“somewhat blocked” by cars parked on the street. Counsel argued that Davila got out of the car

and fell to the ground soon after she heard shots. The only thing she saw was someone running

away after the shooting. Given that defendant never admitted to having a gun on the night of the

shooting, and no forensic evidence tied defendant to the shooting, counsel argued that the State

had not met its burden of proving defendant guilty beyond a reasonable doubt.

¶ 15 The trial court denied the motion, finding that Santa

“ID’d the defendant with the gun and that the two Defendants were acting part and parcel

and completely together, and combining that with your client’s statement, there is no

question in this Court’s mind that he is absolutely positively 100 percent accountable for

the murder of the victim in this case.”

¶ 16 At the sentencing hearing, the trial court heard evidence in mitigation and aggravation. In

mitigation, defense counsel pointed to the Pre-Sentence Investigation Report (PSI), which showed

that defendant had no prior criminal convictions. While in custody, defendant attended school and

performed well. He had a work history as a factory worker and at a McDonald’s. Defendant’s older

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brother, Roberto Gomez, testified that they both belonged to the Sureno 13 gang, but he was not

sure whether defendant was in the gang on the night of the shooting.

¶ 17 After hearing arguments, the trial court found that “this is not a case that should be given

the minimum.” The court believed that defendant was in a gang, and he and Juarez were hunting

for rival gang members. They “planned to shoot a rival gang member.” They would have shot

Santa when they encountered him, but because of his disability they let him go. The court stated

that defendant had “been given certain opportunities” and appears to come from “a nice family,”

who support him and “testified well on [his] behalf.” Although defendant lacked a criminal

background, he “made a big jump” from “not having any background to murder.” The court did

not find “this case to be brutal and heinous under the law…This case is cruel and cold-blooded

*** but I don’t think it to be shockingly stupid.” The court determined that “an appropriate

sentence based on the hunting down of this victim and the fact that he was totally innocent and did

say, ‘Don’t shoot,’ is 35 years on the murder charge, plus an extra 15 pursuant to the applicable

statute, 730 ILCS 5/5-8-1(a)(1)(d)(i).” The trial court suggested that while in prison, defendant

should take advantage of “mentoring programs” and “bettering yourself in other ways,” because

“you do have some potential.” The court stated that “what is sad about this whole thing is that you

were and are a capable person, and you chose to do something so cruel, stupid, and vicious, to just

gun down another unarmed person over gangs.”

¶ 18 On direct appeal, defendant challenged only his sentence, arguing that it was excessive.

This court found that defendant forfeited his challenge because he failed to file a motion to

reconsider his sentence. See People v. Gomez,

. This court further

found that defendant’s challenge would fail on the merits because “[t]he sentencing court clearly

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stated that it considered defendant’s ‘potential,’ his lack of previous criminal history, and each of

the mitigating factors argued by counsel and set forth in the sentencing statute, before it imposed

a sentence within the authorized statutory range.”

.

¶ 19 On July 11, 2013, defendant filed a pro se postconviction petition alleging violations of his

constitutional rights, including ineffective assistance of trial and appellate counsels. The trial court

dismissed the petition as frivolous and patently without merit, and this court affirmed the dismissal

on appeal. See People v. Gomez,

.

¶ 20 On July 21, 2017, defendant filed an “expedited” motion for leave to file a successive

postconviction petition. Defendant argued that in light of the United States Supreme Court case of

Miller v. Alabama,

(2012), and recent Illinois cases, his 50-year sentence is

unconstitutional because it is a de facto life sentence imposed without the required consideration

of the characteristics of his youth. Defendant was 18 years old when the shooting occurred.

Defendant cited studies showing that the part of the brain responsible for decision-making,

inhibition, emotion control, and understanding the consequences of one’s actions is still

developing until a person is in his or her mid-twenties. He alleged that his immature brain caused

him to engage in “impulsive, thoughtless and impetuous behavior at the time of his crime” and

that he was more susceptible to external influences like peer pressure. Defendant stated that his

immature brain was also more affected by his living situation. His father was addicted to alcohol

and cocaine, “and the first gunshots heard came from his father’s gun.” His father also physically

abused his mother, beating her in front of the children. His mother took out her frustrations and

anger on her children “by hitting them, scream[ing] at them, and on several occasions not even

feed[ing”] them.

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¶ 21 The trial court found, however, that Miller is inapplicable to defendant’s case because he

was 18 years old when the shooting occurred and he did not receive a mandatory life sentence.

The court also found that the sentencing court considered defendant’s youth and potential

rehabilitation, pointing to the sentencing hearing that “spans over 47 pages of the record.” The trial

court determined that defendant “failed to satisfy the cause and prejudice test necessary to raise

his claims in a successive petition for post-conviction relief.” Defendant filed this appeal.

¶ 22 III. ANALYSIS

¶ 23 The Post-Conviction Hearing Act (Act) provides a procedural mechanism through which

defendant may assert violations of his constitutional rights in his original trial or at sentencing. 725

ILCS 5/122-1(a) (West 2016). Postconviction proceedings are collateral to proceedings on direct

appeal, “and focus on constitutional claims that have not and could not have been previously

adjudicated.” People v. Holman,

, ¶ 25. Since the Act contemplates the filing of a

single petition, any claim not raised in the initial or amended petition is waived. 725 ILCS 5/122-

3 (West 2016). Successive postconviction petitions are allowed only “when fundamental fairness

so requires.” People v. Pitsonbarger,

(2002).

¶ 24 Leave of court to file a successive postconviction petition may be granted if defendant

shows cause for failure to raise the claim in the initial postconviction proceeding and prejudice

resulting therefrom. 725 ILCS 5/122-1 (West 2016); People v. Wrice,

. To

establish cause, defendant must point to some objective, external factor that impeded his ability to

raise his claim in the initial postconviction proceeding. Pitsonbarger,

. Prejudice

is shown if the failure to raise the claim earlier “so infected the entire trial that the resulting

conviction or sentence violates due process.”

. The State’s brief challenges only whether

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defendant has shown prejudice; therefore we address only that element of the analysis. Ill. S. Ct.

R. 341(h)(7) (eff. May 25, 2018) (“[p]oints not argued are forfeited and shall not be raised in the

reply brief, in oral argument, or on petition for rehearing”).

¶ 25 Defendant was convicted of first degree murder on a theory of accountability. He argues

that although he was 18 years old when he committed the offense, he was entitled to Miller’s

protections because studies have shown that his brain, like those of juvenile defendants, is still

developing in areas relevant to maturity and moral culpability. Defendant contends that his de facto

life sentence of 50 years’ imprisonment is unconstitutional as applied to him because the trial court

did not fully consider the characteristics of youth, or his personal culpability, before sentencing

him. Since defendant challenges his sentence under the eighth amendment and the Illinois

proportionate penalties clause, we must determine whether he has shown prejudice as to each of

these constitutional provisions. Pitsonbarger,

(finding that “the cause-and-

prejudice test must be applied to individual claims, not to the petition as a whole”).

¶ 26 Miller recognized that children lack maturity, have an underdeveloped sense of

responsibility, are more vulnerable to negative influences, and have character that is not yet well

formed. Miller,

. Not only do these characteristics diminish a child’s culpability,

but the “distinctive attributes of youth diminish the penological justifications” for imposing life

without parole upon children.

. Thus, “a sentencing scheme that mandates life in prison

without possibility of parole for juvenile offenders” violates the eighth amendment because such

a scheme, by making the factors of youth “irrelevant to imposition of that harshest prison sentence

*** poses too great a risk of disproportionate punishment.”

. To minimize this risk, Miller

required that before sentencing a juvenile defendant to life in prison without parole, the court must

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consider “how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.”

.

¶ 27 In Montgomery v. Louisiana,

, ___,

(2016), the Court

elaborated that the sentencing of a juvenile to life without parole is “excessive for all but the rare

juvenile offender whose crime reflects irreparable corruption.” (Internal quotation marks omitted.)

“Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that

sentence still violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet

transient immaturity’ ” of youth rather than “irreparable corruption.” (Internal quotation marks

omitted.)

at ___,

. Therefore, the judge at a sentencing hearing must consider

“ ‘youth and its attendant characteristics’ ” so that juveniles who may be sentenced to life without

parole can be separated from those who may not.

at ___,

.

¶ 28 In People v. Harris,

, our supreme court rejected the defendant’s

claim that Miller’s eighth amendment protections should extend to young adults 18 to 21 years of

age. Our supreme court recognized that the Miller line of cases “defined juveniles as individuals

under the age of 18,” and “the Supreme Court has clearly and consistently drawn the line between

juveniles and adults for the purpose of sentencing at the age of 18.” Id. ¶¶ 56, 58. Our supreme

court understood that drawing the line at 18 years old “was not based primarily on scientific

research,” but instead reflected an imprecise categorical rule that society followed in order to

distinguish between children and adults for various purposes. Id. ¶ 60. Accordingly, since

defendant was 18 years old when he committed his offense, Miller does not apply directly to him,

and we affirm the trial court’s denial of leave to file a successive postconviction petition on this

basis.

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¶ 29 In his proportionate penalties claim, defendant seeks to extend the protections of Miller to

himself as an 18-year-old young adult. The proportionate penalties clause of the Illinois

constitution provides 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. While the proportionate penalties clause has some relation to the eighth amendment,

“that relationship is not entirely clear.” People v. Clemons,

. There is no

question, however, that its focus on the objective of rehabilitation goes beyond the original intent

of the eighth amendment “and is not synonymous with that provision.”

For purposes of

defendant’s appeal, we presume that that the failure of his eighth amendment claim does not

automatically defeat his proportionate penalties claim. See People v. LaPointe,

(recognizing that cases have not been clear on the extent to which the

proportionate penalties clause is coextensive with the eighth amendment).

¶ 30 A sentence violates the proportionate penalties clause if it is “cruel, degrading, or so wholly

disproportionate to the offense as to shock the moral sense of the community.” People v. Miller,

(2002) (Leon Miller). Our supreme court has never defined what constitutes a

cruel or degrading sentence that is “wholly disproportionate to the offense” because “as our society

evolves, so too do our concepts of elemental decency and fairness which shape the ‘moral sense’

of the community.”

. To determine whether a sentence shocks the moral sense of the

community, a reviewing court considers the objective facts of the case in light of “the community’s

changing standard of moral decency.” People v. Hernandez,

(2008).

¶ 31 Defendant was sentenced to 50 years in prison, which is a de facto life sentence. People v.

Coty,

. He contends that the reasoning in Miller and Montgomery apply to

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him because a significant risk of disproportionate punishment exists for 18-to-21-year-old

defendants who receive a life sentence. Defendant cites to articles discussing how the brain does

not fully mature until a person reaches his or her mid-twenties. As a result, young adults are more

similar to adolescents in significant ways, such as being more susceptible to peer pressure, and

being more impulsive and less future-oriented. See Vincent Schiraldi & Bruce Western, Why 21

Year-Old Offenders Should Be Tried in Family Court, Wash. Post (Oct. 2, 2015),

https://www.washingtonpost.com/opinions/time-to-raise-the-juvenile-age-

limit/2015/10/02/948e317c-6862-11e5-9ef3-fde182507eac_story.html [https://perma.cc/U7ZS-

N8BG]; see also Andrew Michaels, A Decent Proposal: Exempting Eighteen-to-Twenty-Year-Olds

From the Death Penalty,

, 144, 161-179 (2016) (“evolving

standards of decency—shaped by the modern cultural norm of extended adolescence and informed

by scientific insights into the neurology and psychology of young adults—now ought to spare

eighteen-to-twenty-year-olds as well”).

¶ 32 There is some support for defendant’s position from the legislature, which is the institution

“better equipped to gauge the seriousness of various offenses and to fashion sentences

accordingly.” People v. Buffer,

. Recently, our legislature enacted section 5-

4.5-115 of the Unified Code of Corrections (Code), which provides that defendants who were

under the age of 21 when they committed the offense of first degree murder and sentenced on or

after June 1, 2019, “shall be eligible for parole review *** after serving 20 years or more” of their

sentence. Pub. Act 101-288 (eff. Jan. 1, 2020) (recodifying 730 ILCS 5/5-4.5-110 as 730 ILCS

5/5-4.5-115). Furthermore, “[i]n considering the factors affecting the release determination ***,

the Prisoner Review Board panel shall consider the diminished culpability of youthful offenders,

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the hallmark features of youth, and any subsequent growth and maturity of the youthful offender

during incarceration.” Pub. Act 101-288 (eff. Jan. 1, 2020).

¶ 33 Notably, section 5-4.5-115 does not apply to those offenders “subject to a term of natural

life imprisonment under Section 5-8-1 of this Code.” Pub. Act 101-288 (eff. Jan. 1, 2020). Our

legislature clearly believed that a sentence of natural life in prison is appropriate for young adult

defendants in certain circumstances. The Code also makes an important distinction between

juvenile defendants and young adult defendants on the issue of sentencing. While the sentencing

court must consider additional mitigating factors in determining the appropriate sentence for a

juvenile defendant, incorporating Miller (see 730 ILCS 5/5-4.5-105(a) (West 2016)), there is no

corresponding requirement for sentencing young adult defendants under 21 years of age, even to

a term of life in prison with no possibility of parole. Section 5-4.5-115 recognizes that young adults

under the age of 21 may be less morally culpable than a fully mature adult, thus entitling them to

parole review after serving 20 years of a lengthy sentence. However, nothing in the Code equates

young adult defendants with juveniles when it comes to sentencing them on their convictions.

¶ 34 Also, defendant’s sentence for first degree murder on a theory of accountability does not,

on its own, raise proportionality concerns. Courts have upheld the constitutionality of mandatory

life sentences where the underlying conviction was based on a theory of accountability. People v.

McCoy,

(2003); People v. Griffin,

(2006). Defendant argues, however, that his immature brain puts him in the category of a juvenile

and for a juvenile, the characteristics of youth are relevant to the proportionality analysis.

¶ 35 In Leon Miller, the 15-year-old defendant had one minute to contemplate whether to

participate in a crime and then acted only as a lookout during a shooting in which two people died.

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He never handled a gun during the incident. Leon Miller,

. Due to the convergence

of three statutes, the juvenile defendant was tried as if he were the adult shooter, and he should

have received a mandatory sentence of natural life imprisonment.

. Our supreme court

agreed with the trial court that a sentence of life in prison without the possibility of parole for the

juvenile defendant, who was convicted on a theory of accountability, shocks the moral sense of

the community.

. The court noted our state’s “long-standing distinction” between adult

and juvenile defendants, based on the still-developing characteristics of juveniles and their greater

rehabilitative potential.

. The court found that the mandated sentence of natural life

in prison without parole “implies that under any circumstances a juvenile defendant convicted

solely by accountability is incorrigible and incapable of rehabilitation for the rest of his life.”

. For the 15-year-old defendant, such a sentence “grossly distorts the factual realities of

the case and does not accurately represent [his] personal culpability.”

.

¶ 36 Significant to our case, the decision in Leon Miller “does not imply that a sentence of life

imprisonment for a juvenile offender convicted under a theory of accountability is never

appropriate.”

Our supreme court found it “possible to contemplate a situation where a juvenile

offender actively participated in the planning of a crime resulting in the death of two or more

individuals, such that a sentence of natural life imprisonment without the possibility of parole is

appropriate.”

¶ 37 Here, defendant was an active participant in the plan to shoot rival gang members.

Although the trial court did not have sufficient evidence to find that defendant was the shooter, it

did find that defendant had a gun earlier that night and that he threatened Santa. The court believed

that if Santa had not been disabled, he would have been shot. The court determined “that the two

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Defendants were acting part and parcel and completely together,” and “there is no question ***

that [defendant] is absolutely positively 100 percent accountable for the murder of the victim in

this case.” The trial court found that “this is not a case that should be given the minimum” because

defendant and Juarez were looking for gang members and “planned to shoot a rival gang member.”

The court found the case “cruel and cold-blooded” based on the fact that defendant and

codefendant hunted down the victim and “that [the victim] was totally innocent and did say, ‘Don’t

shoot.’ Unlike the juvenile defendant in Leon Miller, defendant participated in the plan that led to

the shooting of Sanchez. The case relied on by defendant as support, People v. House,

, appeal allowed No. 125124 (Ill. Jan. 29, 2020), is distinguishable for the

same reason.

¶ 38 Where an 18-year-old defendant actively participated in the crime, and the victim is

purposely hunted and killed as the trial court found, a sentence of 50 years in prison is not cruel,

degrading, or wholly disproportionate to the offense that it shocks the moral sense of the

community. Defendant did not receive a mandatory sentence of natural life in prison in which the

court could not consider the facts of the case or defendant’s personal culpability. Instead, the trial

court imposed a discretionary sentence, taking into account mitigating factors such as defendant’s

youth, background, and potential for rehabilitation. While the trial court found that defendant had

“some potential” and suggested that he take advantage of “mentoring programs” and “bettering

yourself in other ways,” under the proportionate penalties clause, “the possibility of rehabilitation

is not given greater weight or consideration than the seriousness of the offense.” People v. Sharpe,

(2005). Since defendant has not shown prejudice regarding his proportionate

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penalties claim, we affirm the trial court’s denial of leave to file a successive postconviction

petition on this basis as well.

¶ 39 Citing Harris,

, defendant argues that, at the very least, we should allow

him to file his successive petition and have an evidentiary hearing so that findings of fact can be

made on his claim. In Harris, the 18-year-old defendant argued for the first time on appeal that his

sentence of 76 years’ imprisonment was unconstitutional under the proportionate penalties clause

as applied to him. Id. ¶ 35. Like defendant here, the defendant argued that as a young adult, the

rationale in Miller should be extended to him. Id. ¶ 37. Our supreme court found that since the

defendant raised his claim for the first time on appeal, no evidentiary hearing was held “and the

trial court did not make any findings of fact on defendant’s specific circumstances.” Id. ¶ 40.

Because Miller does not apply directly to an 18-year-old defendant, “[t]he record must be

developed sufficiently to address defendant’s claim that Miller applies to his particular

circumstances.” Id. ¶ 45. The court, however, declined to remand the case for an evidentiary

hearing, finding that the appropriate procedure would be to file a petition seeking relief under the

Act or under 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)).

¶ 40 Harris only determined that the defendant could file a postconviction petition raising his

proportionate penalties claim; it never held that the defendant was entitled to an evidentiary hearing

upon filing the petition. Here, defendant sought leave to file a successive postconviction petition,

and he must satisfy the cause and prejudice test before he may file it. Since he has not shown cause

and prejudice, leave to file the successive petition was properly denied.

¶ 41 Due to our disposition of defendant’s appeal, we need not consider the State’s argument

that in order for defendant to succeed on his Miller-based proportionate penalties claim, he must

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show he “actually ha[s] or had the brain developmental characteristic of minors” as required by

People v. Thompson,

, and Harris,

.

¶ 42 IV. CONCLUSION

¶ 43 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 44 Affirmed.

¶ 45 PRESIDING JUSTICE MIKVA, dissenting:

¶ 46 I agree with the majority that our supreme court has made it clear that young adults—aged

18 or older—are not presumed to be the same as juveniles, and as such will not automatically be

able to claim—under Miller and its progeny—that a life sentence is unconstitutional. But in the

past five years our supreme court has twice acknowledged that young adults—at least those who

were 20 years of age or younger at the time of their crimes—may still rely on the evolving

neuroscience and societal standards underlying the rule in Miller to support as-applied challenges

to life sentences brought pursuant to the Illinois proportionate penalties clause (Ill. Const. 1970,

art. I, § 11). See Thompson,

(noting that a defendant, who was 19 years old

at the time of his crime, could not bring such a claim for the first time on direct appeal but was

“not necessarily foreclosed” from asserting it in postconviction proceedings); see also Harris,

(concluding that the as-applied, youth-based sentencing claim of a defendant who

was 18 at the time of his crime was “more appropriately raised” in postconviction proceedings).

In doing so, the court opened the door for a young-adult offender to demonstrate, through an

adequate factual record, that his or her own specific characteristics were so like those of a juvenile

that the imposition of a life sentence, absent the safeguards established in Miller, was “cruel,

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degrading, or so wholly disproportionate to the offense that it shocks the moral sense of the

community” (People v. Klepper,

(2009) (stating what is required to succeed

on a proportionate penalties claim)).

¶ 47 The majority in this case holds, however, that Mr. Gomez has no basis on which to make

such a claim. While I agree with the majority that the fact that Mr. Gomez was found guilty on a

theory of accountability does not, in and of itself, mean that his life sentence is unconstitutionally

disproportionate, by ending its analysis there, the majority fails to consider the actual basis for

Mr. Gomez’s potential claim. As he explains in his proposed successive post-conviction petition,

Mr. Gomez was the product of severe abuse and neglect at home that he argues disrupted and

delayed his development. He was also just barely 18 years old at the time of the crime. This

background, the impulsive nature of the crime, the emerging science of brain development, and

the fact that he has made commendable efforts to better himself while incarcerated, reflecting an

ability to mature, all provide some basis for a post-conviction claim that a life sentence, as applied

to him, is unconstitutional.

¶ 48 Thus far, we have had little guidance from our supreme court as to what is required for a

young adult to succeed on an as-applied constitutional challenge to a life sentence. I would reverse

the denial of Mr. Gomez’s motion for leave and remand for second stage proceedings on his

successive petition. It is unclear whether Mr. Gomez will be able to make a substantial showing

that the de facto life sentence he received, as applied to him, violates the proportionate penalties

clause of the Illinois constitution. But it is an argument our supreme court has said is available to

defendants like Mr. Gomez, and one he has so far been prevented from making. He should at least

have that opportunity.

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No. 1-17-3016

Cite as: People v. Gomez,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 06-CR- 12661(01); the Hon. Steven J. Goebel, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Joshua M. Bernstein, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Whitney Bond, Assistant State’s Attorneys, of Appellee: counsel), for the People.

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