No. 1-19-1247 Order filed March 31, 2021

FOURTH DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 94 CR 28535 03 ) JUAN MENESES, ) The Honorable ) William Raines, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Reyes and Martin concurred in the judgment.

ORDER

¶1 HELD: Defendant, who was 16 years old at the time of the offense, has established cause and prejudice to file a successive postconviction petition seeking a resentencing pursuant to the principles established in Miller v. Alabama,

(2012). Pursuant to People v. Buffer,

, we remand for resentencing. No. 1-19-1247

¶2 Defendant Juan Meneses, age 16 at the time of the offense, appeals from

the trial court’s denial of leave to file a successive pro se petition for

postconviction relief.

¶3 The 16-year-old defendant was convicted after a jury trial of first degree

murder and two counts of attempted murder and sentenced in 1997 to a total of

60 years with the Illinois Department of Corrections.

¶4 In his petition, defendant seeks a resentencing pursuant to Miller v.

Alabama,

(2012), the case which articulated the factors a

trial court must consider before sentencing a juvenile offender such as

defendant to life in prison. On appeal, the State concedes that defendant

established cause for not raising his claim earlier but argues that defendant

failed to demonstrate prejudice. The State makes one argument concerning

prejudice: that defendant’s sentence is not a de facto life sentence as, at the time

defendant was sentenced, he was eligible for day-for-day sentencing credit. See

730 ILCS 5/3-6-3(a)(2) (West 1994).

¶5 The State acknowledges that this court has rejected its argument

numerous occasions in multiple published opinions, and that our supreme court

is expected to decide this issue shortly in a case that is pending before it. People

v. Dorsey,

, petition for leave to appeal allowed,

No. 123010 (2020). The list of multiple published opinions includes: People v.

2 No. 1-19-1247

Peacock,

, People v Thornton,

; People v. Figueroa,

;

People v. Daniel,

; People v. Quezada,

; People v. Hill,

. We decline the State’s request to find these appellate cases wrongly

decided.

¶6 The State “agree[s]” that, if we reject its argument, then “this Court need

not remand for further postconviction proceedings, but should remand for

resentencing consistent with Miller and its progeny.” As explained below,

pursuant to People v. Buffer,

, we vacate defendant’s sentence

and remand for resentencing.

¶7 BACKGROUND

¶8 Since the parties raise no issues concerning the facts established at trial or

at sentencing, we summarize them below.

¶9 The evidence at trial established that on November 8, 1994, defendant

and two fellow members of the Latin Kings confronted three members of the La

Raza, a rival street gang, in an alley on the southwest side of Chicago. During

the confrontation, defendant shot and killed Hiram Martinez, one of the three

La Raza members. At trial, defendant testified that, when he observed one of

the three La Raza members pull a handgun from his waist, defendant pulled out

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his weapon and started firing while backing up. A forensic scientist testified

that the hands of one of the La Raza members tested positive for gunshot

residue. The jury found defendant guilty of Martinez’s murder and the

attempted murder of the other two La Raza members.

¶ 10 At sentencing, the trial court stated that it considered defendant’s age,

family background, and prior criminal history, including a prior armed robbery.

Although the court stated, after it announced defendant’s sentence, that it had

also considered defendant’s rehabilitative potential, it did not find that

defendant was incorrigible or without rehabilitative potential. The trial court

imposed a 60-year sentence for the murder, to run concurrently with two

concurrent 30-year sentences for the attempted murders. Defendant’s

conviction was affirmed on direct appeal. People v. Meneses, No. 1-97-3761

(Aug. 11, 1999) (unpublished pursuant to Supreme Court Rule 23).

Defendant’s first postconviction petition was dismissed at the first stage, and its

dismissal was affirmed on appeal. People v. Meneses, No. 1-00-3761 (Aug. 27,

2007) (unpublished pursuant to Supreme Court Rule 23).

¶ 11 ANALYSIS

¶ 12 In the case at bar, the trial court denied defendant leave to file a

successive pro se postconviction petition. The Post-Conviction Hearing Act

(Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides a statutory remedy for

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criminal defendants who claim their constitutional rights were violated at trial.

People v. Edwards,

.

¶ 13 Although our supreme court has made clear that the Act contemplates

only one postconviction proceeding, “[n]evertheless, [the supreme] court has, in

its case law, provided two bases upon which the bar against successive

proceedings will be relaxed” (Edwards,

). The two bases

are (1) cause and prejudice and (2) actual innocence. Edwards,

. In the instant case, defendant alleges cause and prejudice.

¶ 14 At this early stage, when a defendant is seeking leave to file a successive

postconviction petition, he simply has to make “a prima facie showing of cause

and prejudice.” People v. Bailey,

. To determine whether

a defendant has made a prima facie showing, we apply a de novo standard of

review. Bailey,

. De novo consideration means that a

reviewing court performs the same analysis that a trial judge would perform.

People v. Van Dyke,

.

¶ 15 Under the cause-and-prejudice test, a defendant must establish both (1)

cause for his or her failure to raise the claim earlier and (2) prejudice stemming

from his or her failure to do so. Edwards,

(citing People

v. Pitsonbarger,

(2002)). The State concedes that

defendant has established the first prong. The State’s brief to this court states

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that defendant claims, “and the People agree, that he established ‘cause’

because he could not bring his claim until after the United States Supreme

Court made Miller v. Alabama,

(2012), which held that the Eighth

Amendment prohibits mandatory sentencing of life in prison for juvenile

homicide offenders like him, retroactive on collateral review in Montgomery v.

Louisiana,

(2016).” Defendant was sentenced in 1997, over

a decade before either Miller or Montgomery were decided. Thus, as the State

concedes, defendant has established cause.

¶ 16 With respect to prejudice, the State argues only that defendant’s 60-

year sentence was not a de facto life sentence because he was eligible for day-

for-day good-time credit. The State acknowledges that this court has repeatedly

rejected this argument. Peacock,

, Thornton,

; Figueroa,

, ¶¶ 27-

35; Daniel,

; Quezada,

; Hill,

. This court has

written on this issue numerous times before and we adopt here what we have

said before, without repeating it. Also, this issue is pending before our supreme

court. Dorsey,

, petition for leave to appeal

allowed, No. 123010 (2020). Thus, we adhere to our precedent until, and

unless, our supreme court directs otherwise.

6 No. 1-19-1247

¶ 17 In addition, the State attaches a sheet to the appendix of its brief that

purports to set forth defendant’s expected release date. If the State believed

there was a need to supplement the record on appeal, it should have moved to

do so. An appendix should be limited to documents already in the record; and

placing documents in a brief’s appendix does not make them part of the

appellate record. See People v. Carter,

(“

‘[t]he inclusion of evidence in an appendix is an improper supplementation of

the record with information dehors the record’ ” (quoting People v. Wright,

)); Ill. S. Ct. R. 342 (eff. Oct. 1, 2019) (an

appendix may include “materials from the record that are the basis of the appeal

or pertinent to it”). “[I]f the materials are not taken from the record, they may

not generally be placed before the appellate court in an appendix and will be

disregarded.” Oruta v. B.E.W.,

. “This is

particularly true” when “the document that is affixed to the appendix is an

essential component” needed “to evaluate the specific argument raised” by the

party “on appeal.” Carter,

.

¶ 18 Rejecting the State’s argument as our precedent requires, we find that this

16-year-old defendant’s 60-year sentence is a de facto life sentence pursuant to

People v. Buffer,

(a prison sentence of more than 40

years imposed on a juvenile offender constitutes a de facto life sentence).

7 No. 1-19-1247

Having made that finding, we look to Buffer for further direction. In Buffer, as

in our case, the defendant raised a Miller challenge to his sentence in a

postconviction petition, claiming that his sentence was a de facto life sentence.

Buffer,

. The Buffer court found that, “to prevail on a claim

based on Miller and its progeny, a defendant sentenced for an offense

committed while a juvenile must show that (1) the defendant was subject to a

life sentence, mandatory or discretionary, natural or de facto, and (2) the

sentencing court failed to consider youth and its attendant characteristics in

imposing the sentence.” Buffer,

. As discussed above, we

found defendant established the first prong of this test.

¶ 19 With respect to the second prong, the Buffer court found that the trial

court had not “considered defendant’s youth and its attendant characteristics”

and remanded directly for a resentencing. Buffer,

(remanded for resentencing “in the interests of judicial economy”). In the case

at bar, the State does not argue that the sentencing court “considered

defendant’s youth and its attendant characteristics” (Buffer,

), and so we too remand directly for resentencing.

¶ 20 As in Buffer, we vacate defendant’s sentence and remand for a new

sentencing hearing, in accord with the new statutory scheme. Our supreme

court found that “defendant is entitled on remand to be sentenced under the

8 No. 1-19-1247

scheme prescribed by section 5-4.5-105 of the United Code of Corrections.”

Buffer,

, ¶ 47 (referring to 730 ILCS 5/5-4.5-105 (West 2016)).

¶ 21 On remand, the sentencing court may impose a de facto life sentence

“ ‘only if the trial court determines that the defendant’s conduct showed

irretrievable depravity, permanent incorrigibility, or irreparable corruption

beyond the possibility of rehabilitation.’ ” People v. Lusby,

(quoting People v. Holman,

). The trial court may

make an appropriate sentencing decision “ ‘only after considering the

defendant’s youth and its attendant characteristics.’ ” Lusby,

, ¶

34 (quoting Holman,

, ¶ 46). The factors which it must

consider are now codified in our statutes. 730 ILCS 5/5-4.5-105 (West 2016).

Under the new scheme, firearm enhancements are no longer mandatory. 730

ILCS 5/5-4.5-105(b) (West 2016) (the sentencing court “may, in its discretion,

decline to impose any otherwise applicable sentencing enhancement based upon

firearm possession”).

¶ 22 CONCLUSION

¶ 23 For the foregoing reasons, we vacate defendant’s sentence and reverse

and remand for a new sentencing hearing, with directions.

¶ 24 Sentence vacated; remanded for resentencing, with directions.

9