NOTICE FILED This Order was filed under

September 8, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-19-0891 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County STEVEN D. SUMMERS, ) No. 95CF312 Defendant-Appellant. ) ) Honorable ) Jeffrey B. Ford, ) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices Turner and Steigmann concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding the trial court properly denied defendant’s motion for leave to file a successive postconviction petition where he failed to demonstrate cause and prejudice.

¶2 Defendant, Steven D. Summers, appeals from the Champaign County circuit

court’s denial of his motion for leave to file a successive petition under the Post-Conviction

Hearing Act (Postconviction Act) (725 ILCS 5/122-1 to 122-7 (West 2018)). We affirm.

¶3 I. BACKGROUND

¶4 This court has set forth the underlying facts of this case several times. See People

v. Summers, No. 4-96-0136 (May 30, 1997) (unpublished order under Illinois Supreme Court

Rule 23); People v. Summers, No. 4-03-0896 (May 9, 2005) (unpublished order under Illinois

Supreme Court Rule 23); People v. Summers,

; People v. Summers,

. Accordingly, we will set forth only those facts necessary to

resolve the issue presented in this case.

¶5 On August 31, 1995, the State charged defendant by indictment with one count of

aggravated vehicular hijacking, a Class X felony (720 ILCS 5/18-4(a)(3), (b) (West 1994)), when

defendant took a 1993 Pontiac Grand Prix from Megan Mahoney while armed with a handgun

and threatening to use imminent force; two counts of aggravated kidnapping of Mahoney while

armed with a handgun, a Class 1 felony (id. §§ 10-2(a)(5), (b)(2)); and one count of armed

robbery, a Class X felony (id. §§ 18-2(a), (b)), when defendant took Mahoney’s 1993 Pontiac

Grand Prix and money while armed with a handgun. The indictments alleged the events took

place on March 3, 1995, when defendant was 19 years old. Following a jury trial, defendant was

convicted on the aggravated vehicular hijacking and armed robbery charges. The Champaign

County circuit court sentenced defendant to two concurrent terms of 30 years in prison.

¶6 In June 1995, several weeks before defendant was indicted in this case, defendant

pleaded guilty to two counts of attempt (first degree murder) (id. § 5-8-4(a)) in Clinton County

case No. 95-CF-42. In exchange for his plea of guilty in that case, defendant was sentenced to

two concurrent terms of 60 years in prison. Defendant’s concurrent sentences in this case were

ordered to run consecutively to his concurrent sentences in the Clinton County case. Defendant

appealed his sentences in the Clinton County case, and the Fifth District affirmed. People v.

Summers,

,

(1997).

¶7 On direct appeal in this case, defendant argued his conviction for aggravated

vehicular hijacking should be vacated because it was an included offense of armed robbery. This

court affirmed defendant’s convictions and sentences. Summers, No. 4-96-0136 (May 30, 1997)

(unpublished order under Illinois Supreme Court Rule 23).

-2- ¶8 Since 1996, defendant has filed numerous collateral challenges to his convictions

and sentences, including five petitions for relief under the Postconviction Act and three petitions

for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS

5/2-1401 (West 2008)). None of those challenges have been successful. See Summers,

, ¶¶ 13-27 (summarizing defendant’s collateral challenges and appeals to

this court).

¶9 In November 2019, defendant filed a motion for leave to file a sixth successive

postconviction petition. In his petition, defendant raised an as-applied constitutional challenge to

his sentences in this case and in the Clinton County case based in part on Miller v. Alabama,

(2012), and its progeny. Specifically, defendant argued the trial court erred when it

sentenced him to an “aggregate de facto life sentence of 90 years where [he] was a

19[-]year[-]old teenager at the time of the offense and where both courts failed to properly

consider his youth and its attendant characteristics.”

¶ 10 On November 26, 2019, the trial court entered a written order denying

defendant’s motion for leave to file a successive petition.

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 Defendant argues he set forth the prima facie showings for his claim his

concurrent 30-year sentences in this case, coupled with his 60-year sentences in Clinton County

case No. 95-CF-42, violated the eighth amendment of the United States Constitution and the

proportionate penalties clause of the Illinois Constitution as applied to him. U.S. Const., amend.

VIII; Ill. Const. 1970, art. I, § 11. The State responds that the trial court properly denied

defendant leave to file a successive postconviction petition because he failed to demonstrate both

-3- cause and prejudice as required by section 122-1(f) of the Postconviction Act (725 ILCS

5/122-1(f) (West 2018)). We agree with the State and affirm the trial court’s judgment.

¶ 14 A. Postconviction Proceedings

¶ 15 Section 122-1(f) of the Postconviction Act (725 ILCS 5/122-1(f) (West 2018))

provides the following:

“Only one petition may be filed by a petitioner under this Article without

leave of the court. Leave of court may be granted only if a petitioner demonstrates

cause for his or her failure to bring the claim in his or her initial post-conviction

proceedings and prejudice results from that failure. For purposes of this

subsection (f): (1) a prisoner shows cause by identifying an objective factor that

impeded his or her ability to raise a specific claim during his or her initial post-

conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that

the claim not raised during his or her initial post-conviction proceedings so

infected the trial that the resulting conviction or sentence violated due process.”

¶ 16 Thus, for a defendant to obtain leave to file a successive postconviction petition,

both prongs of the cause-and-prejudice test must be satisfied. People v. Guerrero,

,

. When the circuit court has not held an evidentiary hearing, this

court reviews de novo the denial of a defendant’s motion for leave to file a successive

postconviction petition. See People v. Gillespie,

,

(2010).

¶ 17 B. Miller and its Progeny

¶ 18 Defendant argues he demonstrated cause warranting leave to file a successive

postconviction petition because “the legal basis for his constitutional claims is based on recent

-4- and evolving case law that was not available to [him] when he filed his previous petitions.”

Specifically, defendant relies on the Supreme Court’s holding in Miller and subsequent Illinois

case law interpreting Miller.

¶ 19 This court recently summarized the holding in Miller as follows:

“In Miller,

, the Supreme Court held ‘that the Eighth

Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders,’ i.e., those under the age of 18. The

court relied on previous decisions establishing that children are constitutionally

different from adults for sentencing purposes. [Citations.] In setting forth its

decision, the court stated as follows:

‘Mandatory life without parole for a juvenile precludes

consideration of his chronological age and its hallmark features—among

them, immaturity, impetuosity, and failure to appreciate risks and

consequences. It prevents taking into account the family and home

environment that surrounds him—and from which he cannot usually

extricate himself—no matter how brutal or dysfunctional. It neglects the

circumstances of the homicide offense, including the extent of his

participation in the conduct and the way familial and peer pressures may

have affected him. Indeed, it ignores that he might have been charged and

convicted of a lesser offense if not for incompetencies associated with

youth—for example, his inability to deal with police officers or

prosecutors (including on a plea agreement) or his incapacity to assist his

own attorneys. [Citations.] And finally, this mandatory punishment

-5- disregards the possibility of rehabilitation even when the circumstances

most suggest it.’ [Citation.]” People v. Cortez,

,

¶ 38.

¶ 20 Following its holding in Miller, the Supreme Court held that Miller set forth a

substantive rule of constitutional law and therefore applies retroactively. Montgomery v.

Louisiana,

(2016). In interpreting Miller, the Illinois Supreme Court

determined 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.” People v. Buffer,

,

.

¶ 21 “Although Miller and its progeny directly apply to only offenders under the age of

18, our supreme court has recognized that young adult offenders ‘may raise an as-applied

constitutional challenge [under the proportionate penalties clause of the Illinois Constitution] in a

postconviction petition based on the evolving science on juvenile maturity and brain

development which helped form the basis of the Miller decision.’ ” Cortez,

(quoting People v. Moore,

,

, citing

People v. Harris,

,

).

¶ 22 While this matter was pending before this court, the Illinois Supreme Court

released its opinion in People v. Dorsey,

. In that case, the defendant appealed

from the First District’s judgment affirming the denial of the defendant’s motion for leave to file

a successive postconviction petition. Id. ¶ 1. As relevant to this case, the defendant argued that

his aggregate sentence of 76 years in prison for crimes committed when he was 14 years old

-6- violated the proportionate penalties clause of the Illinois Constitution as applied to him. Id. ¶¶ 4,

19, 68. The supreme court held that the defendant failed to demonstrate cause for his failure to

raise this argument in his initial postconviction petition as required by section 122-1(f) of the

Postconviction Act (725 ILCS 5/122-1(f) (West 2016)). In reaching this conclusion, the supreme

court held that not only was the defendant’s claim both (1) forfeited and (2) barred by the

doctrine of res judicata, but also, “Miller’s announcement of a new substantive rule under the

eighth amendment does not provide cause for a defendant to raise a claim under the

proportionate penalties clause.” Id. ¶¶ 70, 74. The court reasoned as follows:

“As defendant acknowledges, Illinois courts have long recognized the differences

between persons of mature age and those who are minors for purposes of

sentencing. Thus, Miller’s unavailability prior to 2012 at best deprived defendant

of ‘some helpful support’ for his state constitutional law claim, which is

insufficient to establish ‘cause.’ ” Id. ¶ 74 (quoting People v. LaPointe,

,

).

¶ 23 C. This Case

¶ 24 First, defendant cannot establish cause or prejudice as to his claim his aggregate

sentences violate the eighth amendment to the United States Constitution. Defendant was 19

years old when he committed the aggravated vehicular hijacking and armed robbery in this case.

In Miller, the United States Supreme Court explicitly held the eighth amendment only prohibits

“mandatory life without parole for those under the age of 18” at the time of their crimes.

(Emphasis added.) Miller,

. Additionally, the Illinois Supreme Court has noted its

agreement with federal court decisions rejecting claims to extend Miller to individuals who

committed crimes as young adults. Harris,

(collecting cases). Defendant

-7- cannot demonstrate cause or prejudice as to this claim because the eighth amendment does not

provide a constitutional basis under which defendant may challenge his convictions. See also

People v. Chambers,

(stating that for purposes of the eighth

amendment, our supreme court has declined to apply Miller to young adult offenders); People v.

Mauricio,

(rejecting the defendant’s claim that a young adult

may raise an as-applied eighth amendment challenge to his sentence).

¶ 25 Additionally, based on our supreme court’s decision in Dorsey, we conclude

defendant in this case has failed to demonstrate cause for his failure to raise his as-applied

proportionate penalties clause claim in any of his previous five postconviction petitions. Like the

defendant in LaPointe, defendant’s claim “does not rest on the new substantive legal rule that

Miller created.” LaPointe,

. While the Supreme Court’s reasoning

in Miller may have provided “some helpful support” (id. ¶ 59) for his proportionate penalties

clause claim, its unavailability prior to 2012 did not prevent him from raising such a claim in a

postsentencing motion, on direct appeal, or in his initial postconviction petition.

¶ 26 Moreover, even if defendant were able to demonstrate cause, he has also failed to

demonstrate prejudice because he provided no evidence indicating how “his own immaturity or

individual circumstances would provide a compelling reason to allow him to file a successive

postconviction petition.” Moore,

. Although defendant, in his

affidavit, provided evidence regarding his capability for rehabilitation based on his

accomplishments and good behavior while in prison, this evidence is not temporally relevant to

what was considered by the sentencing court because these were not facts that existed at that

time. The information provided merely shows defendant, in his adulthood, has responded

positively to the educational and therapeutic programs available to him while in prison.

-8- Defendant provides no support for his assertion that his sentence violated the proportionate

penalties clause based on the circumstances unique to his upbringing and youth at the time he

committed the offenses in this case. Like the defendant in Moore, “[d]efendant’s flat assertion a

19-year-old’s brain is more like a 17-year-old adolescent’s in terms of development is simply

insufficient to survive the more exacting standard that would warrant the filing of a successive

postconviction petition.”

¶ 27 Accordingly, the trial court properly denied defendant leave to file a successive

postconviction petition.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the trial court’s judgment.

¶ 30 Affirmed.

-9-