No. 1-20-0112 Second Division December 7, 2021

____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

) Appeal from the THE PEOPLE OF THE STATE OF ) Circuit Court of ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) ) No. 13 CR 19027 v. ) ) ANDRE HILLIARD, ) Honorable ) Vincent Michael Gaughan Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Justices Howse and Lavin concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant-appellant Andre Hilliard was found guilty of attempted

murder and aggravated battery with a firearm and sentenced to 15 years in prison plus a mandatory

25-year firearm enhancement, for a total of 40 years’ imprisonment. He now appeals from the

judgment of the trial court summarily dismissing his pro se petition pursuant to the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, he argues that

the trial court erred because his petition stated an arguable basis in fact or law where he was 18 No. 1-20-0112

years old at the time of the offense and the trial court was unable to consider his youth and attendant

characteristics before imposing the mandatory firearm enhancement. For the following reasons,

we affirm.

¶2 I. BACKGROUND

¶3 On September 19, 2013, defendant was arrested and charged with attempted murder and

aggravated battery with a firearm in connection with the shooting of Devaul Killingsworth in the

early hours of August 6, 2013. As relevant to this appeal, the facts adduced at trial are as follows.

¶4 At the start of trial, the trial judge stated on the record that defendant was removed from

the courtroom because he had threatened people, became belligerent, and started screaming.

Instead of shackling and handcuffing defendant, the judge opted to place defendant in a lockup

with a microphone placed inside to ensure that defendant could hear the trial proceedings.

Defendant was informed that, at any point, he could decide that he wanted to be present in the

courtroom.

¶5 Killingsworth testified that just before midnight on August 5, 2013, he was visiting Tracy

Chatman, the mother of his grandchildren, at the Altgeld Gardens housing complex, located on

132nd Street in Chicago. At around 12:45 a.m., he was standing outside of Chatman’s door talking

to the neighbors. As he was about to reenter Chatman’s home, he heard a noise, turned around,

and saw defendant, whom he believed to be Chatman’s boyfriend at the time, pointing a gun at

him. Defendant, from one or two feet away, fired two to five gunshots at him. Killingsworth was

struck in the arm by two bullets as he raised his arm to protect himself. He then ran a few feet into

a grassy area and fell down before walking back to Chatman’s door. A neighbor came out with a

chair for him and told him he had been shot. Eventually, an ambulance arrived and took

Killingsworth to the hospital. He had surgery on his arm to remove the bullet and fragments, but

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not all could be removed. He testified that he is still unable to use his arm to the same extent as

before the shooting. While he was at the hospital, he informed detectives that defendant shot him.

From a photograph array, Killingsworth identified defendant. After defendant was arrested,

Killingsworth identified him as the shooter from a physical lineup.

¶6 Chicago police detective Brian Cunningham testified that on August 6, 2013, he and his

partner, Chicago police detective Bryant Casey, were assigned to investigate a shooting at Altgeld

Gardens. Cunningham first went to the hospital to assess the status of the victim, Killingsworth.

Killingsworth told Cunningham that the shooter was someone named “Andre.” Killingsworth

identified defendant as the shooter from a photo array. Defendant was arrested on September 19,

2013.

¶7 Dr. Tobin Efferen, an attending physician at Mount Sinai Medical Center, testified that he

was working on August 6, 2013, when Killingsworth was transferred to Mount Sinai from

Roseland Hospital. He testified that Dr. Mason Milburn was also involved in Killingsworth’s care

at the hospital as the orthopedic surgeon. A review of Killingsworth’s X-rays showed that he had

broken bones in his left forearm, which required surgery. Dr. Efferen did not see Killingsworth

again after surgery, but based on the medical records, he stated that the surgery was successful.

¶8 Defendant’s motion for a directed verdict as to attempted first degree murder was denied.

At this time, defendant was once again asked if he wanted to participate in the trial, which he

refused. The defense rested without presenting evidence.

¶9 The jury found defendant guilty of attempted first degree murder and aggravated battery

with a firearm. The jury also found that, during the commission of the attempted murder, defendant

personally discharged a firearm that caused great bodily harm to another person.

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¶ 10 After the jury returned the verdict, the trial court requested that Forensic Clinical Services

examine defendant’s fitness in light of defendant’s behavior during the trial. Dr. Nishad Nadkarni

interviewed defendant three separate times but ultimately could not render an opinion because

defendant refused to cooperate. However, Dr. Nadkarni did opine that he believed defendant was

malingering some psychotic symptoms and that he did not have any cognitive impairments or

mental illnesses that prevented him from understanding the charges and participating in the trial

as necessary. In coming to this conclusion, Dr. Nadkarni had reviewed defendant’s records

including reports from 2009 at Hargrove Hospital, where defendant was hospitalized briefly for

severe behavioral disorder, conduct disorder, aggression, and a history of drug abuse and gang

involvement, though these reports did not contain a diagnosis of any major mental illness or

cognitive impairment. After the fitness hearing, the trial court found defendant to be fit for posttrial

motions and sentencing.

¶ 11 A presentencing investigation report (PSI) was prepared prior to the sentencing hearing,

though the probation officer reported that he had difficulty interviewing defendant because

defendant refused to participate. The report disclosed that defendant’s parents were never married

and he did not have a relationship with his father. Defendant only attended school until the fifth

grade, and he stated that he suffered from a mental illness.

¶ 12 At the sentencing hearing, neither party introduced any evidence in aggravation or

mitigation. The State requested a sentence above the minimum based on evidence that

Killingsworth was permanently disabled. Defense counsel noted that defendant was 19 years old

at the time of sentencing and had no criminal history. In sentencing defendant, the court merged

the offense of aggravated battery with a firearm into the attempted murder count. The court then

sentenced defendant to 15 years for attempted murder and the minimum sentence of 25 years for

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personally discharging a firearm that proximately caused bodily harm to a person, after considering

“the statutory provisions in aggravation, the statutory provisions in mitigation *** and also [the]

evidence presented at the aggravation and *** mitigation phase of the sentencing and pre-

sentencing investigation.” The court did not make any specific statements regarding the statutory

factors or any of the evidence presented at the hearing or in the PSI.

¶ 13 On direct appeal, defendant argued, inter alia, that the mandatory firearm enhancement

was unconstitutional as applied to him in light of his young age at the time of the offense. People

v. Hilliard,

. This court affirmed defendant’s conviction and sentence

and, in relation to his constitutional claim, took no position and stated that it was “best suited” for

the trial court where the factual record could be developed as necessary. Id. ¶ 42. This court denied

the petition for rehearing on August 4, 2017, and our supreme court denied defendant’s petition

for leave to appeal on November 28, 2018.

¶ 14 On September 19, 2019, defendant filed his initial pro se postconviction petition, alleging

that the mandatory 25-year firearm enhancement was unconstitutional as applied to him under the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). He further

asserts that the trial court should have explicitly applied the factors espoused in Miller v. Alabama,

(2012), because his cognitive impairments rendered him more similar to a 16-

or 17-year-old at the time of the offense and the trial court was unable to consider his youth,

rehabilitative potential, lack of criminal history, and lack of gang involvement prior to imposing

the firearm enhancement.

¶ 15 On December 5, 2019, the trial court issued a written order summarily dismissing the

petition. This appeal followed.

¶ 16 II. ANALYSIS

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¶ 17 On appeal, defendant asserts that he has stated the gist of an arguable constitutional claim

that the mandatory 25-year firearm enhancement as applied to him violates the proportionate

penalties clause of the Illinois Constitution and thus this court should reverse and remand for

second stage proceedings under the Act. Specifically, he alleges that he was only 18 years old at

the time of the offense and the court was unable to consider his youth and other related factors,

including his childhood, lack of education, and lack of gang membership, when adding the

enhancement to his sentence.

¶ 18 The Act provides a method for a defendant to collaterally attack a conviction by asserting

that it resulted from a “substantial denial” of his constitutional rights. 725 ILCS 5/122-1 (West

2018); People v. Hodges,

(2009). A postconviction proceeding in a noncapital case

has three stages. Hodges,

. At the first stage, a petition need only state the “gist”

of a constitutional claim (id. at 9), and a trial court may summarily dismiss a postconviction

petition within 90 days if it “determines the petition is frivolous or is patently without merit” (725

ILCS 5/122-2.1(a)(2) (West 2018)).

¶ 19 A petition is frivolous or patently without merit when it has no arguable basis in either fact

or law. Hodges,

. A petition has no arguable basis in law or fact where it is

“based on an indisputably meritless legal theory or a fanciful factual allegation.”

.

Additionally, a defendant’s claim is considered frivolous or patently without merit if it is

procedurally barred under either the doctrine of res judicata or forfeiture. People v. Blair,

(2005). Although a defendant’s petition is to be liberally construed and need only

present a limited amount of detail, that “does not mean that a pro se [defendant] is excused from

providing any factual detail at all surrounding the alleged constitutional deprivation.” People v.

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Delton,

(2008). We review de novo the summary dismissal of a defendant’s

postconviction petition. People v. Allen,

.

¶ 20 As an initial matter, we note that defendant did include a constitutional claim under the

proportionate penalties clause on direct appeal. However, at that time, this court did not consider

that claim, as we found that it was better pursued in a postconviction petition as our supreme court

directed in People v. Thompson,

, and People v. Harris,

(both

discussed in greater detail below). For that reason, there is no issue of forfeiture or res judicata

regarding the instant petition.

¶ 21 Defendant’s as-applied constitutional challenge is rooted in a line of cases providing

heightened protections for juvenile defendants in sentencing under the eighth amendment of the

United States Constitution, which prohibits cruel and unusual punishment. See Roper v. Simmons,

(2005) (eighth amendment prohibits the death penalty for juveniles who

commit murder); Graham v. Florida,

(2010) (eighth amendment prohibits

mandatory life sentences without parole for juveniles who commit nonhomicide offense); Miller,

(eighth amendment prohibits mandatory life without parole sentences for juvenile

offenders convicted of homicide). Specifically, the rationale for the holding in Miller, the

preeminent case, was that “children are constitutionally different from adults for purposes of

sentencing,” as they are less mature and more impulsive and vulnerable to peer pressure than

adults.

. Clear from this trilogy of cases is that the Court was concerned with the most

severe forms of punishment allowed under the Constitution, the death penalty and life without

parole.

¶ 22 The Illinois Supreme Court has expanded the Miller protections beyond the context of

mandatory life sentences to now include juvenile offenders who receive de facto life sentences

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(People v. Reyes,

), which the court later defined as a prison term of more than

40 years (People v. Buffer,

). 1 Subsequently, in People v. Holman,

, our supreme court extended the protections of Miller, holding that “[l]ife sentences,

whether mandatory or discretionary, for juvenile defendants are disproportionate and violate the

eighth amendment, unless the trial court considers youth and its attendant characteristics.” Thus,

a juvenile defendant may be sentenced to life imprisonment without parole only if the trial court

first determines that the juvenile defendant’s conduct demonstrated “irretrievable depravity,

permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” 2 Id.

¶ 46. Such a determination should be made after the trial court has considered the Miller factors,

which include but are not limited to the juvenile defendant’s (1) chronological age at the time of

the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate

risks and consequences; (2) family and home environment; (3) degree of participation in the

homicide and any evidence of familial or peer pressures that may have affected him;

(4) incompetence, including his inability to deal with police officers or prosecutors and his

1 Recently, in People v. Dorsey,

, ¶ 49, our supreme court considered the relevance of good-conduct credit in determining whether a 76-year sentence constitutes a de facto life sentence as prescribed by the court in Buffer. The court held that, because the defendant, who was 14 years old at the time of the offense, could reduce his 76-year sentence to 38 years through good-time credit, the sentence did not offend Buffer’s 40-year mark. Id. ¶ 65. In so doing, the court implicitly reaffirmed that 40 years is the line of demarcation for de facto life sentences. 2 We are aware of the United States Supreme Court’s recent decision in Jones v. Mississippi, ___ U.S. ___, ___,

, 1318-19 (2021), holding that sentencing courts are not constitutionally mandated under the eighth amendment to make a finding of “permanent incorrigibility” before sentencing a juvenile defendant to life without parole. The Court also expressly stated, however, that states are not precluded from imposing any sentencing mechanisms they see fit in cases involving juvenile defendants convicted of murder, such as requiring extra factual findings, prohibiting sentences of life without parole for juveniles, or permitting appellate review based in proportionality for life-without-parole sentences.

at ___, 141 S. Ct. at 1323. As of the issuance of this decision, our supreme court has addressed Jones only in passing, suggesting that the holding of Holman in light of Jones is “questionable.” Dorsey,

. Unless and until explicit direction is given in light of Jones, we are constrained to follow our current supreme court precedent.

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incapacity to assist his own attorneys; and (5) prospects for rehabilitation.

(citing Miller,

).

¶ 23 Defendant acknowledges that he does not have a viable eighth amendment claim under

Miller because he was 18 years old at the time of the offense. See People v. Franklin,

(“It is well established that offenders who are 18 years and older cannot raise a

facial challenge to their sentences under the eighth amendment and the Miller line of cases.”). He

instead couches his claim as a violation of the proportionate penalties clause of the Illinois

Constitution.

¶ 24 The proportionate penalties clause 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. We have held that this clause provides greater protections

against excessive punishment than does the eighth amendment. People v. Fernandez,

; People v. Minniefield,

; see also People v.

Clemons,

(the proportionate-penalties clause “which focuses on the objective

of rehabilitation, went beyond the framers’ understanding of the eighth amendment and is not

synonymous with that provision”). But see People v. Patterson,

(stating

that the proportionate penalties clause is “co-extensive with the eighth amendment’s cruel and

unusual punishment clause”). For more than a century, we have held that, where a defendant’s

sentence is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral

sense of the community, it violates the proportionate penalties clause. People ex rel. Bradley v.

Illinois State Reformatory,

(1894). The clause requires balancing the goals of

retribution and rehabilitation, which necessitates a careful consideration of all the factors in

aggravation and mitigation. People v. Quintana,

(2002). We may

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determine whether a sentence shocks the moral sense of the community by considering both

objective evidence and the community’s changing standard of moral decency. People v.

Hernandez,

(2008).

¶ 25 In two cases on direct appeal, our supreme court has recognized that young adults (those

between 18 and 21 years old) may rely on the evolving neuroscience regarding brain development

in juveniles and its correlation to maturity underpinning the Miller decision in support of an as-

applied challenge pursuant to the proportionate penalties clause of the Illinois Constitution. See

Thompson,

(19-year-old defendant sentenced to a term of natural life in

prison); Harris,

(defendant, aged 18 years and 3 months, sentenced to 76

years in prison). In Thompson and Harris, the court opened the door for young adult defendants to

demonstrate that their own specific characteristics and circumstances were so like those of a

juvenile that imposition of a life sentence, absent the necessary considerations established in

Miller, would violate the proportionate penalties clause. The court instructed, however, that such

claims would best be pursued through postconviction proceedings, as defendant seeks to do here.

See Thompson,

; Harris,

. Clear from Thompson

and Harris is the viability of Miller based claims in postconviction proceedings. Equally clear

from Miller and its progeny is that such claims must satisfy two initial threshold requirements: the

defendant must be (1) either a minor or young adult offender and (2) sentenced to a natural or

de facto life sentence. Miller,

; Buffer,

; Thompson,

; Harris,

.

¶ 26 Defendant argues that “the proportionate penalties clause may be violated when an

emerging adult *** either receives a de facto life sentence or suffers a mandatory adult sentencing

penalty, without the trial court having properly considered the youth of the offender.” (Emphasis

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added.) Defendant acknowledges that he did not receive a de facto life sentence as defined in

Buffer. He maintains, however, that for purposes of a proportionate penalties claim, whether the

sentence is de facto life is not a factor. He argues that the proper focus is on the absence of

sentencing discretion. At oral argument, defendant entreated this court to “extend” the Miller

protections, notwithstanding that his sentence was less than de facto life, because imposition of

mandatory enhancement, without due consideration given to his youth and the attendant

characteristics, shocks the moral conscience of the community.

¶ 27 The State seeks to defeat defendant’s claim by characterizing his aggregate 40-year

sentence as “discretionary,” the inference to be drawn being that the court considered any relevant

factors. We reject the State’s characterization out of hand. Defendant’s sentence is clearly

composed of two statutorily authorized components. The court’s imposition of the mandatory

firearm enhancement was done without the exercise of any discretion by the court. To suggest

otherwise is simply disingenuous.

¶ 28 To support his claim that a de facto life sentence is not required for Miller protections to

apply, defendant invites our attention to cases decided here in the First District, People v. Aikens,

, and People v. Ruiz,

, as well as to cases from

our sister districts, People v. Barnes,

, and People v. Womack,

. Subsequent to the close of briefing, the parties moved for and were granted

leave to cite additional authority in support of their respective positions. Specifically, defendant

additionally cites our supreme court’s recent decision in People v. House,

, and

the State cites People v. Woods,

, and People v. Nichols,

. We will address the additionally cited authorities as we deem relevant or necessary

to our analysis and disposition of this appeal. We hasten to add that we are not bound by the

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decisions of other districts, divisions, or even different panels of our division of the appellate court

(O’Casek v. Children’s Home & Aid Society of Illinois,

(2008)). Even so, we

may consider decisions of our sister districts, as well as different divisions of our court, as

instructive.

¶ 29 Decisional law following Miller continues to evolve. Miller itself has become so ingrained

in our jurisprudence that mention of the case name alone induces a ready recall of both the

procedural and substantive rules borne out of that decision. Given defendant’s suggested “novel”

approach to resolving the issue before us and notwithstanding our familiarity, a more detailed

summary of Miller and its holding serves best to explain our disposition here. In Miller, the Court

considered appeals by “two 14-year-old offenders *** convicted of murder and sentenced to life

imprisonment without the possibility of parole. In neither case did the sentencing authority have

any discretion to impose a different punishment.” Miller,

. Recalling its earlier

decisions in Roper and Graham, the Miller court noted the difference between children and adults

for purposes of sentencing decisions and that, “in imposing a State’s harshest penalties, a sentencer

misses too much if he treats every child as an adult.”

. The Court explained that a

mandatory sentence precludes consideration of, inter alia, the juvenile offender’s age and its

attendant characteristics.

The Court held that “mandatory life without parole for those under

the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel

and unusual punishments.’ ”

. Accordingly, “a judge or jury must have the opportunity

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to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”

. 3

¶ 30 Subsequent to the decision in Miller, the high court in Montgomery v. Louisiana clarified

that Miller established both a substantive and a procedural requirement.

,

(2016). Montgomery explained that, pursuant to Miller, sentencing a child to life without

parole is excessive for all but the rare juvenile offender whose crime reflects irreparable corruption.

at ___,

(citing Miller

, and Roper,

). Miller

rendered life without parole an unconstitutional penalty for a particular class of juvenile defendants

whose criminal acts reflect the transient immaturity of youth.

at ___,

. “As a

result, Miller announced a substantive rule of constitutional law.”

at ___,

.

Miller’s procedural component “requires a sentencer to consider a juvenile offender’s youth and

attendant characteristics before determining that life without parole is a proportionate sentence.”

at ___,

.

¶ 31 Here, defendant seeks to divorce Miller’s procedural requirement (consideration of the

juvenile offender’s age and its attendant characteristics) from its substantive rule (mandatory life

without parole for juveniles violates the eighth amendment) and require a hearing notwithstanding

the absence of a de facto life sentence. Nothing in Miller can be read to suggest simply that

mandatory sentences imposed on juvenile offenders violate the eighth amendment. Nor does such

a suggestion arise from a reading of either Thompson or Harris. To accept defendant’s suggested

“novel” application of Miller would require us to extract the substantive rule of Miller from its

3 As stated previously, our supreme court in Reyes extended the holding in Miller to include mandatory de facto life sentences (

), later quantified in Buffer as a sentence greater than 40 years (

).

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holding and apply only the supporting procedural requirement. To do so would additionally require

that we overlook the holdings in Thompson and Harris, which rely not only upon Miller’s

procedural requirement but, more significantly, upon the substantive rule of constitutional law in

extending protections to emerging adults. To parse out select portions of Miller’s holding would

mean that we give Miller, at least as we know it, no constitutional law effect. The procedural rule

in Miller does not replace, but rather gives effect to, Miller’s substantive holding.

at ___,

. Accordingly, we decline defendant’s invitation to extend Miller to sentences of less

than natural or de facto life imprisonment.

¶ 32 Although we believe Miller and Buffer are controlling, we will nonetheless address the

holdings in Aikens and other cases relied upon by defendant in support of his claim. In Aikens, the

defendant, who was 17 years old at the time of the offense, was sentenced to an aggregate prison

term of 40 years, which included a mandatory 20-year firearm enhancement.

. On direct appeal, the defendant raised both facial and as-applied challenges to various

of Illinois’s mandatory sentencing schemes under both the eighth amendment of the United States

Constitution and the proportionate penalties clause of the Illinois Constitution. The defendant

argued that the mandatory nature of particular sentencing schemes divested the court of any

individualized determinations, as proscribed by Roper, Graham, and Miller. Id. ¶ 30. In rejecting

the defendant’s facial claims, the court noted that in Miller the Court stated that a judge or jury

must have the opportunity to consider mitigating circumstances before imposing the harshest

possible penalty for a juvenile. Id. ¶ 31.

¶ 33 The court applied a different analysis in deciding the defendant’s as-applied challenge to

the mandatory firearm enhancement provision. Relying on our supreme court’s decision in People

v. Miller (Leon Miller),

(2002), and this court’s decision in People v. Gipson,

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, the court found that the challenged sentencing scheme, as applied to

the defendant, shocked the evolving standard of moral decency and thus violated the proportionate

penalties clause. Aikens,

. In particular, this court noted that the

defendant had no prior criminal history and had a troubling background and that the trial court

specifically noted that he lacked discretion and the sentence seemed “ ‘to be an unimaginable

amount of time especially for a teenage child.’ ”

Noting the evolving standards for juvenile

offenders in Illinois, as evidenced by recent legislative enactments, the court expressed that the

legislation was indicative of a changing moral compass in our society as it related to trying and

sentencing juveniles as adults. Id. ¶ 38. Following the lead in Gipson, the court reversed the

defendant’s sentence and remanded for resentencing, without imposition of the mandatory

enhancement. Id.

¶ 34 We disagree with Aikens, which incidentally, like Leon Miller and Gipson, was decided

before Buffer and thus without knowledge of Buffer’s 40-year demarcation for de facto life

sentences. Further, we believe that Miller’s “harshest possible penalty” proscription, which the

Aikens court relied upon in rejecting the defendant’s facial challenges, was equally applicable to

defeat his as-applied challenges. Buffer aside, clearly, the defendant’s 40-year sentence was not

Miller’s “life imprisonment without the possibility of parole.”

¶ 35 We note in passing that Gipson, which was limited to its particular facts, bears little

similarity to Aikens. There, the defendant was 15 years of age at the time of the charged offense.

Gipson,

. The record revealed the defendant’s mental health, before

commission of the offense, was questionable. Id. ¶¶ 5-15. Yet, in imposing the mandatory firearm

enhancement, the court had no discretion to consider the defendant’s individual characteristics. Id.

¶¶ 23-24. The defendant was sentenced to an aggregate of 52 years in prison, which, we note,

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would qualify under Buffer as a de facto life sentence, implicating both the eighth amendment and

the proportionate penalties clause. Id.

¶ 36 Defendant argues that, even short of actually finding a statute unconstitutional as applied

to an emerging adult, our court has repeatedly found that, under the proportionate penalties clause,

an emerging adult who either received a “de facto life sentence or suffered mandatory application

of a severe adult statute without consideration of his youth can at least proceed to the second stage

of post-conviction proceedings.” At the second stage, defendant can then argue, with the assistance

of counsel, “why the fact their youth was not properly considered at sentencing renders their

sentence unconstitutional.”

¶ 37 In support of this argument, defendant cites People v. Ruiz,

. In

Ruiz, the defendant, who was 18 years old at the time of the offense, was found guilty of first

degree murder and aggravated discharge of a firearm and sentenced to 40 years’ imprisonment,

which included a concurrent 15-year mandatory firearm enhancement. Id. ¶¶ 1, 16, 18. In seeking

leave to file his successive postconviction petition, the defendant challenged his “40-year

discretionary sentence” as unconstitutional under the proportionate penalties clause because the

trial court failed to consider his age during sentencing. Id. ¶ 28. Over strong dissent, this court

reversed the trial court’s denial of leave to file the petition and remanded for further proceedings

to permit the defendant, originally sentenced to 40 years, an opportunity to develop the factual

basis in support of his Miller claim. Id. ¶ 2. Specifically, the Ruiz majority held that the defendant

stated a claim that, as a matter of law, the successive postconviction requirement of “prejudice has

been caused by reason of [his] justified failure to raise a constitutional challenge to his sentence in

his initial postconviction petition.” Id. ¶ 53. The dissent pointed out that, as the defendant’s 40-

year sentence was not a de facto life sentence, Miller protections did not apply. Id. ¶ 77 (Pierce, J.,

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dissenting). The dissent stated that, because there was no authority to extend to an adult protection

not available to any juvenile that did not receive a de facto life sentence, the petitioner’s Miller

claims should be dismissed. Id.

¶ 38 We decline to follow Ruiz. Instead, we agree with the dissent that, because defendant’s 40-

year sentence did not equate to a de facto life sentence, it did not qualify for Miller type protections.

See People v. Carrion,

(disagreeing with Ruiz and noting that the

defendant in that case “did not even receive a de facto life sentence”). Additionally, as the dissent

makes clear, given the length of the sentence, even had the defendant been a juvenile, he would

not have been entitled to Miller-type protections.

¶ 39 Further, the majority in Ruiz determined that a 40-year sentence would result in a 15-year-

old defendant being released at age 55 and an 18-year-old defendant being released at age 58 and

that the statistical predictions for life expectancy should be considered for these age differences

and what constitutes a life sentence. Ruiz,

(majority opinion).

Rather than follow the rationale in Buffer, the court appeared to adopt an “age of release” standard

in determining whether a 40-year sentence should be considered a de facto life sentence for young

adults. Id. ¶¶ 43-45. However, the Buffer court expressly considered and rejected arguments that

involved statistical data on the number of years that would result in a survivable sentence or that

suggested that Miller be triggered when a sentence results in a “geriatric release.”

. But see id. ¶¶ 53-68 (Burke, J., specially concurring) (stating that “the answer to the

question “what constitutes a de facto life sentence is essentially a mathematical calculation”).

Further, and purely as an aside, we question whether the procedure espoused in Ruiz comports

with settled procedures regarding satisfaction of the cause-and-prejudice test for purposes of filing

a successive postconviction petition.

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¶ 40 We believe that the analysis in People v. Woods,

, comports with

Miller and Buffer. In Woods, the defendant, who was 17 years old at the time of the offenses, was

found guilty of attempted murder and aggravated battery with a firearm and sentenced to 33 years’

imprisonment, which included a mandatory 25-year firearm enhancement. Id. ¶¶ 23, 25. In his

successive postconviction petition, the defendant alleged, inter alia, that his sentence violated the

proportionate penalties clause, as applied to him, because he was a juvenile when the offenses

occurred and the mandatory sentencing enhancement removed discretion from the sentencing

court. Id. ¶ 30. This court held that because the defendant received neither a mandatory nor a

de facto life sentence, as defined in Buffer,

, his challenge failed to

demonstrate prejudice. The court further noted that our supreme court has upheld the

constitutionality of mandatory firearm sentencing schemes and stated that there was no indication

from the legislature that the application of mandatory firearm enhancements to juveniles shocked

our sense of moral decency. Woods,

(citing People v. Sharpe,

(2005)).

¶ 41 The State argues, and we agree, that Woods supports its position on appeal. Similar to

Woods, defendant here has also not received a natural or de facto life sentence. As such, his

challenge fails to demonstrate a constitutional violation. See also People v. Wilson,

(stating that our supreme court “has interpreted Roper, Graham, and Miller to

apply ‘only in the context of the most severe of all criminal penalties’ ” (quoting People v.

Patterson,

)).

¶ 42 Defendant distinguishes Woods on the basis that the defendant’s offense there occurred

near a school and involved the shooting of a police officer and that the defendant was asserting his

claim in a successive postconviction petition, as opposed to an initial petition as here. Additionally,

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defendant points out that the defendant in Woods received a 33-year sentence, whereas defendant

here received a 40-year sentence, “only one day less than what the Court has deemed a de facto

life sentence for juvenile offenders.” For these reasons, defendant argues that Woods “does not

negate the arguable nature of [his] initial postconviction claim.”

¶ 43 We find the facts offered by defendant as distinguishable to be without any meaningful

difference, as they do nothing to alter the fact that his sentence was neither the qualifying life

sentence proscribed by Miller nor the de facto life sentence as expressly defined by Buffer.

¶ 44 Finally, defendant cites Barnes,

, and People v. Womack,

, both of which were decided by our appellate court in other districts. In

Barnes, the defendant, who was 17 years old at the time of the offense, was sentenced to a total of

37 years’ imprisonment, which included a 15-year mandatory firearm enhancement, for armed

robbery.

. The defendant argued that the mandatory firearm

enhancement statute was unconstitutional under the proportionate penalties clause. Id. ¶ 16. The

Fifth District found the Aikens decision to be instructive and held that “the sentencing scheme

employed by the trial court, as applied to [the] defendant, violate[d] the proportionate penalties

clause of the Illinois Constitution, as it shocks our community’s evolving standard of moral

decency.” Id. ¶ 25. For the reasons that we decline to follow Aikens, we also decline to follow

Barnes.

¶ 45 In Womack, the defendant was 16 years old at the time of the offense and was sentenced to

a total of 38 years’ imprisonment, which included a mandatory 20-year firearm enhancement.

. In a successive postconviction petition, the defendant alleged that he

established cause and prejudice to bring an as-applied claim that the firearm enhancement violated

the proportionate penalties clause. Id. ¶ 13. Citing Aikens and Barnes, the majority concluded that

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the mandatory enhancement as applied to the defendant violated the proportionate penalties clause

insofar as the enhancement did not comport with “Illinois’s evolving standard of decency” in this

case. Id. ¶ 15. However, the majority did not address the fact that the defendant’s sentence was not

a de facto life sentence, and, in fact, the majority did not cite Buffer at all. We disagree with the

majority’s conclusion in that respect because, again, it is clear from our supreme court precedent

that Miller is only applicable where a defendant has received a natural or de facto life sentence.

Buffer,

(a defendant must show both (1) that he was “subject to a life

sentence, mandatory or discretionary, natural or de facto,” and (2) that “the sentencing court failed

to consider youth and its attendant characteristics”); Holman,

; Reyes,

; see also Womack,

(Schmidt, J., dissenting)

(stating that Miller should not apply, as the defendant “did not receive a life sentence in any

sense”); People v. Carmichael,

(Hyman, J., concurring) (stating

that the 19-year-old defendant’s 35-year sentence did not qualify for protections under Miller

because he did not receive a de facto life sentence as it has been defined in Buffer).

¶ 46 III. CONCLUSION

¶ 47 To pass first stage muster under the Act, a petitioner must state the gist of a constitutional

claim. Hodges,

. Here, defendant challenges imposition of the mandatory firearm

enhancement provision, absent consideration of the characteristics attendant to youth, as violative

of the proportionate penalties clause of the Illinois Constitution. As the United States Supreme

Court noted in Harmelin, “[t]here can be no serious contention *** that a sentence which is not

otherwise cruel or unusual becomes so simply because it is “mandatory.’ ” Harmelin v. Michigan,

(1991) (citing Chapman v. United States,

(1991)). In fact,

our supreme court held that the mandatory firearm enhancement does not violate the proportionate

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penalties clause. See Sharpe,

; see also People v. Pace,

,

¶ 41. Further, and consistent with the holdings in Miller and Buffer, only natural or de facto life

sentences require consideration of youth and its attendant characteristics.

¶ 48 Defendant received an aggregate sentence of 40 years, 25 of which included the mandatory

firearm enhancement. As defendant did not receive the most severe penalty possible, the

procedural protections under Miller were not required. His sentence was not “cruel, degrading, or

so wholly disproportionate to the offense as to shock the moral sense of the community.” Sharpe,

. We decline defendant’s entreaty to extend the procedural requirements of Miller

to sentences that do not violate the substantive rule of constitutional law announced therein.

Because defendant has not stated the gist of a constitutional claim, summary dismissal of his first

stage petition was proper.

¶ 49 For the reasons stated, we affirm the judgment of the circuit court.

¶ 50 Affirmed.

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No. 1-20-0112

Cite as: People v. Hilliard,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-CR- 19027; the Hon. Vincent Michael Gaughan, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Caroline E. Bourland, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (John E. for Nowak, Tasha Kelly, and Gina DiVito, Assistant State’s Appellee: Attorneys, of counsel), for the People.

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