No. 1-19-1625 Second Division December 28, 2021

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 ____________________________________________________________________________

) Appeal from the THE PEOPLE OF THE STATE OF ) Circuit Court of ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) ) No. 97 CR 12486 v. ) ) ROMMELL WINTERS, ) Honorable ) Thomas Joseph Hennelly Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________

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

ORDER

¶1 Held: The circuit court’s denial of defendant’s motion for leave to file his successive postconviction petition is affirmed where defendant failed to established both cause and prejudice with respect to his claim that his natural life sentence, imposed for crimes committed when he was 18 years old, was unconstitutional as applied to him under the proportionate penalties clause of the Illinois Constitution.

¶2 Defendant-appellant, Rommell Winters, appeals from the circuit court’s denial of his pro

se petition for leave to file a successive postconviction petition pursuant to the Post-Conviction No. 1-19-1625

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, defendant, who was 18

years old at the time of the underlying offenses and was convicted on a theory of accountability,

contends that he sufficiently established cause and prejudice as to his as-applied constitutional

challenge to his natural life sentence under the proportionate penalties clause. For the following

reasons, we affirm the circuit court’s dismissal.

¶3 I. BACKGROUND

¶4 This case was previously before us twice. See People v. Winters, No. 1-99-4427; People

v. Winters,

(2004). We repeat only the facts necessary to resolve this instant

appeal.

¶5 On November 7, 1996, Carl Barbee and Jerome Coleman were killed in a shooting.

Defendant and his codefendant, Kevin Malone, were charged with their murders. Defendant and

Malone were tried simultaneously with separate juries.

¶6 At trial, Chicago police officer Michael Dalessandro testified that he investigated a

related shooting that previously occurred on October 16, 1996, on the 3000 block of West

Chicago Avenue. The victims of that shooting were Malone, Deon Wilkins, and Anthony Prince.

That shooting was unsolved, and the investigation was suspended in November of 1996.

¶7 Other testimony revealed that Malone, defendant, Prince, Dwayne Mobley, and Dushae

Nesbitt were all members of the Traveling Vice Lords gang, who were in a feud with the

Unknown Vice Lords gang. At the time, the only individual who had a rank within the gang was

Prince, who was “chief.”

¶8 Nesbitt and Mobley testified to the following. On November 7, 1996, Mobley was

driving his girlfriend’s maroon Chevrolet Beretta, with his girlfriend and Nesbitt as passengers.

Both Nesbitt and Mobley were aware of the October shooting. They came across defendant and

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Malone in a black Buick Regal, which defendant was driving. Defendant told Mobley and

Nesbitt to follow them (though Mobley told police and testified before a grand jury that Malone

was the one who told them to follow them). Both cars then drove to the intersection of Adams

Street and Spaulding Avenue near Marshall High School, which was the Unknown Vice Lords’

territory. There, Nesbitt and Mobley observed a black Chevrolet with two men inside, who were

later identified as Barbee and Coleman. The black Chevrolet attempted a U-turn, but defendant

blocked the car. Malone stepped out of the Regal with a gun in his hand. He fired seven or eight

shots at the Chevrolet, shattering the driver’s side window. Nesbitt and Mobley drove away from

the scene, circled the block, and arrived back at the intersection to find only the Chevrolet. Three

days later, Mobley spoke with Malone, who told him not to say anything about the shooting.

Nesbitt encountered Malone at a barber shop sometime after the shooting and was likewise

instructed not to say anything about the shooting. In April 1997, on separate occasions, Mobley

and Nesbitt went to a police station, viewed physical lineups, and identified Malone and

defendant as involved in the shooting.

¶9 The State presented testimony from former Assistant State’s Attorney Kevin Simon. This

evidence was submitted solely to Malone’s jury but was considered by the trial court at

defendant’s resentencing hearing; thus, we relay the general substance of it here. Simon testified

that Malone signed a handwritten statement confessing to the shooting following his arrest.

Therein, Malone stated that on November 7, 1996, Prince ordered him to accompany defendant

to kill Barbee after Barbee failed to pay Prince $20,000 in exchange for Prince not seeking

revenge for the October shooting. Malone handed defendant a gun and rode in the front

passenger seat as defendant drove to Adams and Spaulding. Defendant handed the gun back to

Malone and told him to ask the men in the black Chevrolet about the money. When Malone

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questioned the occupants of the vehicle, he saw one man reach under the glove compartment and

Malone subsequently fired 10 or 11 times into the car. After he and defendant drove away from

the scene, he disposed of the gun.

¶ 10 The jury convicted defendant of the first degree murders of Barbee and Coleman.

¶ 11 At sentencing, the presentence investigation report (PSI) was filed with the court. In

aggravation, the State submitted the victim impact statement of Barbee’s mother, Carolyn

Barbee. The court sentenced defendant to natural life in prison without parole for each count of

first degree murder. The court denied defendant’s motion to reconsider his sentence.

¶ 12 On direct appeal, this court affirmed defendant’s convictions but vacated his sentence and

remanded for resentencing because Public Act 89-203 (eff. July 21, 1995), under which

defendant was sentenced, had been declared unconstitutional by our supreme court in People v.

Wooters,

(1999). Thus, this court instructed the trial court to resentence

defendant under the provisions of the Unified Code of Corrections (Code) as they existed prior to

Public Act 89-203. Winters,

.

¶ 13 At the resentencing hearing, an updated PSI was submitted, along with the previously

submitted victim impact statement. Defendant’s PSI showed that he did not have a criminal

record (except for two juvenile adjudications for drug possession). Defendant spoke in

allocution, maintaining his innocence but also stating that he has stayed out of trouble while

incarcerated, that he was previously “a fragile thinker who was living a life of falsehood,” and

that he was no longer associated with any gang. The trial court sentenced defendant to a term of

natural life for each of the murders. In so ruling, the court stated that it had considered the

statutory factors in mitigation and aggravation and defendant’s rehabilitative potential and was

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familiar with the PSI. Defendant filed a motion to reconsider his sentence, which the trial court

denied but clarified that the sentences were to run concurrently.

¶ 14 Defendant appealed to this court, arguing that although mandatory life sentence for the

murder of more than one person was required, implicit in this court’s remand for resentencing

was that the sentence was discretionary. Winters,

. Alternatively,

defendant argued that “a mandatory life sentence for a ‘young’ adult defendant convicted under a

theory of liability is unconstitutional under the Illinois Supreme Court’s decision in People v.

Miller (Leon Miller),

(2002).” Winters,

. This court

affirmed, holding that a natural life sentence was mandatory for the murder of more than one

person. Winters,

. We also found that, not only was the level of

defendant’s participation in the offense factually different from that of the defendant in Leon

Miller, but unlike the defendant in Leon Miller, defendant was not a juvenile at the time the

offenses were committed.

. Our supreme court denied defendant’s petition for leave

to appeal. Winters,

(2004).

¶ 15 While his direct appeal from resentencing was pending with this court, defendant filed his

initial postconviction petition, in which he argued that (1) his conviction and sentence violated

Apprendi v. New Jersey,

(2000), and (2) his appellate counsel on direct appeal was

ineffective for failing to argue that his sentence was an abuse of the trial court’s discretion. The

trial court summarily dismissed the petition, and no appeal was taken from the dismissal.

¶ 16 On October 31, 2018, defendant filed a motion for leave to file a successive

postconviction petition that is the subject of this appeal. Therein, defendant claimed that his

mandatory life sentence violated both the eighth amendment of the United States Constitution

and the proportionate penalties clause of the Illinois Constitution. He contended that his sentence

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was invalid as applied to him because the sentencing court did not take into account his

youthfulness and minimal involvement in the offenses. Specifically, defendant referenced the

evolving neuroscience regarding the development of the brain. He also pointed out the unjustness

that would result from his sentence not being reduced where the sentence of his codefendant

Malone (who was the actual shooter and only a year younger) had been reduced to 45 years’

imprisonment under Miller v. Alabama,

(2012). 1

¶ 17 Attached to defendant’s petition was his own affidavit, in which he averred that he was

raised “in a gang and drug infested environment,” he lost his father to gun violence when he was

a teenager, and he had no rank within the gang at the time of the shooting.

¶ 18 On June 14, 2019, the trial court denied defendant’s motion for leave to file a successive

postconviction petition, stating that defendant could not raise a claim under Miller because he

was not a juvenile at the time of the offense.

¶ 19 This appeal followed.

¶ 20 II. ANALYSIS

¶ 21 On appeal, defendant argues that the trial court erred in denying him leave to file his

successive postconviction petition, which contained a claim that his sentence of mandatory life

imprisonment violated the proportionate penalties clause of the Illinois Constitution as applied to

him, where he was 18 years old at the time of the murder and was found guilty on the basis of

accountability. He asserts that his petition demonstrates sufficient cause and prejudice under the

Act such that further proceedings are warranted.

¶ 22 A. Standard of Review

1 Attached to defendant’s successive petition was the sentencing memorandum from Malone’s resentencing upon remand from this court (case No. 97 CR 1248602).

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¶ 23 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 5/1221 (West

2018); People v. Hodges,

(2009). The Act contemplates the filing of only one

petition without leave of court. People v. Lusby,

. To obtain leave to file a

successive petition, the petitioner must demonstrate both cause for his failure to raise the claim in

the initial petition and prejudice from that failure.

To show cause, the petitioner must identify

an objective factor that impeded his ability to raise a specific claim during his initial

postconviction proceedings. Id.; see also People v. Pitsonbarger,

(2002). To

show prejudice, the petitioner must demonstrate that the claim not raised during his initial

postconviction proceedings so infected the resulting conviction or sentence that it violated due

process. Lusby,

. It is the petitioner’s burden to establish a prima facie

showing of cause and prejudice before any further proceedings on his claims can occur. People

v. Bailey,

; People v. Smith,

.

¶ 24 The cause-and-prejudice test is a more difficult standard to satisfy than that required at

the first stage for an initial postconviction petition. Smith,

. “[L]eave of

court to file a successive postconviction petition should be denied when it is clear, from a review

of the successive petition and the documentation submitted by the petitioner, that the claims

alleged by the petitioner fail as a matter of law or where the successive petition with supporting

documentation is insufficient to justify further proceedings.”

Successive postconviction

petitions call into doubt that finality of criminal proceedings, and as such, the hurdles for such

petitions “are lowered only in very limited circumstances.” People v. Tenner, 381, 392 (2002).

Both prongs must be satisfied for leave of court to be granted. People v. Guerrero,

. Whether the denial of defendant’s motion for leave to file a successive

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postconviction petition was proper is an issue that we review de novo. People v. Edgeston,

(2009).

¶ 25 B. Miller and its Progeny

¶ 26 As an initial matter, we note that defendant made a claim pursuant to the eighth

amendment in his petition; however, on appeal, he does not raise any arguments based on the

eighth amendment. Thus, we need not address that claim, and as is made clear below, we would

reject such a claim as defendant was not a juvenile at the time of the offenses. 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.”). Nevertheless, because defendant’s proportionate penalties clause claim is

rooted in the continuously evolving caselaw flowing from Miller, the substance of which

addressed eighth amendment protections, we find it essential to summarize that jurisprudence, as

it currently stands.

¶ 27 During the past two decades, the United States Supreme Court has issued several

decisions 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 without parole sentences 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 was that “children are constitutionally different from adults for

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purposes of sentencing,” as they are less mature and responsible than adults, and more impulsive

and vulnerable to peer pressure.

.

¶ 28 In the wake of Miller, our supreme court has broadened protections for juvenile offenders

in several ways. First, the court has applied Miller to juvenile offenders who receive de facto life

sentences (People v. Reyes,

), which the court has explicitly defined as a

prison term of more than 40 years (People v. Buffer,

). Protections under

Miller were also extended in People v. Holman,

, wherein our supreme

court held 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.” The court further held that a juvenile may only be sentenced to life

imprisonment without parole if the trial court first determines that the juvenile defendant’s

conduct demonstrated “irretrievable depravity, permanent incorrigibility, or irreparable

corruption.” Id. ¶ 46.2 The court continued that such a determination should be made after the

trial court has considered the factors set forth in Miller, which include, but are not limited to: (1)

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 evidence of pressures that may have affected him; (4) any

incompetence, including an inability to deal with police officers or prosecutors and incapacity to

2 Recently, the United States Supreme Court issued its decision in Jones v. Mississippi,

(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. Nonetheless, the Court also expressly stated 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.

. More recently, in Dorsey,

, our supreme court suggested, without more, that, in light of Jones, the holding of Holman is “questionable[.]” Absent more, Holman continues as binding precedent which we are constrained to follow.

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assist his own counsel; and (5) prospects for rehabilitation.

(citing Miller,

-

78).

¶ 29 Against this backdrop, we set forth the prevailing caselaw regarding proportionate

penalties clause claims for young adult offenders.

¶ 30 C. Proportionate Penalties Clause

¶ 31 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. This clause

provides greater protections against excessive punishment than the eighth amendment of our

federal constitution. People v. Minniefield,

; People v.

Fernandez,

; 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.”). A defendant’s sentence violates the proportionate penalties clause if “the punishment

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

moral sense of the community.” Leon Miller,

. The proportionate penalties 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 determine whether a sentence shocks the moral sense of the

community by considering both objective evidence and the community’s changing standards of

moral decency. People v. Hernandez,

(2008).

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¶ 32 At the time this appeal was filed, our supreme court, in two cases on direct appeal,

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 People v. Harris,

; People v. Thompson,

. In Thompson and Harris, the court

indicated that young defendants could demonstrate that their own specific characteristics and

circumstances were so like those of a juvenile that imposition of a life sentence, absent the

necessary safeguards established in Miller, would violate the proportionate penalties clause. The

court instructed, however, that such claims would best be pursued in the trial court or through

postconviction proceedings. Harris,

(holding that the as-applied, youth-

based sentencing claim of an 18-year-old defendant was “more appropriately raised” in

postconviction proceedings); Thompson,

(noting that a 19-year-old

defendant was “not necessarily foreclosed” from asserting such a claim in postconviction

proceedings).

¶ 33 Relying on this decisional law, defendant seeks review of his sentence in a postconviction

proceeding. Thus, we turn to the merits of defendant’s appeal.

¶ 34 D. Defendant’s Petition

¶ 35 Defendant argues that he has established both cause and prejudice for his successive

postconviction petition as required under the Act.

¶ 36 1. Cause

¶ 37 Defendant contends, and the State concedes, that he has sufficiently established cause for

his failure to raise this claim in his initial postconviction petition. However, as a reviewing court

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we are not bound by a party’s concession. People v. Carter,

. Thus, we

commence our review, first with a recitation of the relevant sections of the Act.

¶ 38 Pursuant to section 122-1(f) of the Act, leave of court to file a successive postconviction

petition may only be granted if the petitioner first “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[.]” 725 ILCS 5/122-1(f) (West 2018). “ ‘[A] showing that the factual or

legal basis for a claim was not reasonably available to counsel *** would constitute cause under

this standard.’ ” Pitsonbarger,

(quoting Strickler v. Greene,

, 283

n. 24 (2009)).

¶ 39 Here, defendant argues that he has demonstrated cause for his claim as Miller “and other

recent decisions” created new constitutional rules that were not available to him at the time he

filed his initial postconviction petition. Defendant filed his initial postconviction petition in 2003,

several years before Miller was decided in 2012. Defendant does not specifically identify the

“other recent decisions” in support of his argument regarding cause. In support of his argument

regarding prejudice, however, he cites to Harris,

, which was decided more than

a decade after his initial postconviction petition was filed.

¶ 40 We believe that People v. Davis serves as an appropriate starting point for our analysis of

the cause component of defendant’s petition.

. Davis involved a 14-year-old

defendant convicted of multiple murders, attempted murder, and home invasion and who was

sentenced to natural life in prison without parole. Id. ¶ 5. In September 2002, the defendant filed

what would have been his fourth petition for postconviction relief pursuant to the Act. Id. ¶ 7.

Relying on our supreme court’s decision in Leon Miller, the defendant argued that his natural life

sentence was unconstitutional because he did not actually participate in the act of killing. Id. He

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argued that his sentence violated the eighth amendment to the United States Constitution and,

further, that the statute requiring a mandatory life sentence violated the Illinois Constitution as

applied to a 14-year-old defendant. Id. Following a hearing, the circuit court dismissed the

petition, finding the defendant’s case to be distinguishable from Leon Miller, where that

defendant was not an active participant in the commission of the offense. Id. ¶ 8. This court, as it

had held with the defendant’s prior appeals from postconviction petition dismissals, affirmed the

circuit court. Id. ¶¶ 6-8.

¶ 41 In April 2011, the defendant filed a “Motion for Leave to File a Verified Successive Post-

Conviction Petition.” Id. ¶ 9. Again, the circuit court denied the defendant leave to file a

successive petition for relief pursuant to the Act and, again, the defendant appealed to this court.

Id. ¶¶ 9-10. While the defendant’s appeal was pending, the United States Supreme Court decided

Miller. Id. In reversing the circuit’s court’s dismissal, the appellate court held that Miller applies

retroactively on postconviction review. Id.

¶ 42 In affirming, our supreme court held that because Miller declared a new substantive rule,

it applies retroactively on collateral review. Id. ¶ 40. The court expressly stated that “[i]n terms

of the requisite cause and prejudice of the [Act], Miller’s new substantive rule constitutes ‘cause’

because it was not available earlier to counsel [citation], and constitutes prejudice because it

retroactively applies to defendant’s sentencing hearing. [Citation.]” Id. ¶ 42.

¶ 43 Additionally noteworthy, in Davis, the defendant, in reliance on the United States

Supreme Court’s “ ‘reaffirmation of the special status of children’ ” in Graham and Miller,

contended that his sentence violated both the proportionate penalties and the due process clauses

of the Illinois Constitution. Id. ¶ 31. In response, our supreme court noted that in “Leon Miller,

[it] expressly recognized the special status of juvenile offenders prior to Roper, Graham, and

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Miller.” Id. ¶ 45. Quoting from its opinion in Leon Miller, the court noted that “such special

status does not necessarily prohibit a sentence of natural life without parole where a juvenile

offender actively participates in the planning of a crime that results in multiple murders.” Id. ¶ 45

(quoting Miller,

).

¶ 44 We acknowledge that Miller provided a new substantive rule, coupled with a procedural

component. The substantive rule pronounced in Miller proscribed a mandatory sentence of life

without parole for a juvenile offender.

. As to its procedural component, Miller

further requires that a sentencer consider a juvenile’s youth and its attendant characteristics prior

to imposing a sentence of life imprisonment without parole.

. However, these rules,

at least as they are set out in Miller, are strictly applicable to juvenile defendants challenging a

life sentence under the eighth amendment. Defendant here is not a juvenile and is not challenging

his sentence under the eighth amendment on appeal. Thus, neither the substantive rule nor the

procedural component from Miller directly applies to defendant and his proportionate penalties

clause claim. Further, defendant received a mandatory natural life sentence. Accordingly, the

subsequently decided cases of Holman, Reyes, and Buffer (expanding Miller to discretionary

sentences and de facto life sentences) were also not necessary to the formulation of defendant’s

claim. See People v. Ross,

(finding that the defendant

established cause because the supreme court cases of Buffer and Reyes decided that Miller

applied to de facto life sentences). In sum, Miller and its direct progeny (those involving

juveniles and the eighth amendment) do not provide a legal basis, or cause, for defendant’s

failure to include the claim in his initial postconviction petition.

¶ 45 Our finding is bolstered, and indeed, as we discuss later, is dictated by a recent decision

by our supreme court. After briefing was completed in this appeal, the court issued an opinion in

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People v. Dorsey,

, which briefly addressed this issue now before us. 3 In Dorsey,

the juvenile defendant claimed, inter alia, that his sentence violated the proportionate penalties

clause of the Illinois Constitution. Id. ¶ 68. The court rejected the defendant’s claim for multiple

reasons. The court first determined that the claim was forfeited and barred by res judicata. Id. ¶

70. Although the res judicata finding was determinative, the court went further, finding that the

defendant could not establish cause for his failure to raise the claim in his initial postconviction

petition. Id. ¶ 74.

¶ 46 Citing People v. LaPointe

, the court stated that “Miller’s

unavailability prior to 2012 at best deprived [the] defendant of ‘some helpful support’ for his

state constitutional claim, which is insufficient to establish ‘cause.’ ”

Given the court’s

endorsement of LaPointe, we briefly summarize it here. In LaPointe, the defendant requested

leave to file a successive postconviction petition alleging that his life sentence for murder

violated both the eighth amendment of the United States Constitution and the proportionate

penalties clause of the Illinois Constitution.

, ¶ 1. The defendant argued

that because Miller was issued after he was sentenced and applies retroactively to his case, he

had established cause. Id. ¶ 56. The court rejected the defendant’s proportionate penalties

argument, finding that the clause was “very much in existence” when his first petition was filed

and the defendant had the materials necessary “to assemble an argument that his sentence was

unconstitutionally severe in light of his youth[.]” Id. ¶ 55. The court explained that he had

established cause for his eighth amendment claim because Miller had created a “new legal right”;

3 In the main, Dorsey considered whether day-for-day credit should be factored into a determination of whether the defendant received a de facto life sentence as defined in People v. Buffer for purposes of an eighth amendment claim.

. Finding that the defendant’s sentence offered an opportunity for release prior to serving Buffer’s 40 year de facto life sentence, the court held that defendant could not bring a successive postconviction petition with respect to his eighth amendment claim. Id. ¶ 50.

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however, his proportionate penalties clause claim did not “rest on the new substantive legal rule

that Miller created.” Id. ¶¶ 57-58. In particular, the nonexistence of Miller “merely deprived [the]

defendant of some helpful support” for his claim, which was insufficient to create cause. Id. ¶ 59.

The court rejected the proposition that all caselaw written in support of a new legal rule applies

retroactively and establishes cause for successive postconviction petitions, finding that doing so

would result in severely weakening section 122-1(f) of the Act. Id.

¶ 47 Prior to Dorsey, there had been a clear split of authority on the question of cause with

respect to proportionate penalties claims asserted by young adult defendants. See, e.g., People v.

Franklin,

; People v. Minniefield,

; People v. Carrasquillo,

; People v. Ross,

(all of which hold that a defendant, relying on the principles of Miller and its

progeny, establishes cause for filing a successive postconviction petition where those cases had

not been decided at the time the defendant filed his initial postconviction petition); but see

People v. LaPointe,

; People v. Bilski,

, ¶¶

21-27; People v. Hernandez,

, ¶¶ 45-46; People v. Hoover,

(all of which hold that Miller and its progeny does not serve as cause to

satisfy the cause and prejudice test).

¶ 48 Since the issuance of Dorsey, two decisions, People v. Summers,

, and People v. Haines,

, both rendered by our

sister court in the Fourth District, relied on the supreme court’s opinion in Dorsey in concluding

that the young adult defendant in each case failed to establish cause for his proportionate

penalties clause claim based on Miller. But see People v. Horshaw,

, ¶

123 (holding that defendant made a prima facie showing of cause for not bringing his

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proportionate penalties claim in his initial petition, where Miller was made retroactively

applicable to cases on collateral review after he had filed his initial postconviction petition). 4

The former case, Summers, summarily determines that the defendant there did not establish

cause, citing to LaPointe and Dorsey and stating that the unavailability of Miller “prior to 2012

did not prevent [the defendant] from raising such a claim in a postsentencing motion, on direct

appeal, or in his initial postconviction petition.”

. Haines, the

later decided case, contains a thorough analysis regarding the effect of Miller and Harris on the

issue of cause and is summarized below.

¶ 49 In Haines, the court, citing People ex rel. Bradley v. Illinois State Reformatory,

(1894), stated that, in discussing minors who were between the ages of 16 and 21 years old,

“[i]t was already accepted in Illinois law that there was a significant developmental difference

between young adults and adults.”

. The court noted that Illinois

courts have long recognized and permitted as-applied claims under the proportionate penalties

clause and have repeatedly held that the proportionate penalties clause requires the sentencing

court to consider a defendant’s youth and mentality. Id. ¶¶ 42-43. The court found that these

principles of law constitute the basic foundation for the defendant’s proportionate penalties

clause claim, and the cited caselaw was all available to the defendant to formulate his claim prior

to the filing of his initial postconviction proceeding. Id. ¶ 44. The court further stated that the

brain research identified in Miller only serves as helpful support for the defendant’s claim under

the proportionate penalties clause because Illinois courts, dating back to the 19th-century, have

4 Although the court in Horshaw comments that the supreme court in Dorsey called the holding of People v. Holman,

, into question, the Horshaw court makes no mention of Dorsey’s expressed opinion regarding satisfaction of the Act’s cause requirement in the context of a young adult defendant’s proportionate penalty claim.

, ¶¶ 127-28.

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acknowledged that there is a significant developmental difference between minors and adults.

¶ 46 (citing People ex rel. Bradley, 148 Ill. At 422-23).

¶ 50 Briefly, Bradley involved the interpretation and application of a new statutory scheme

providing for a juvenile reformatory for those between the ages of 10 and 21 years.

. The Bradley court also addressed an argument that the scheme was in violation of the

proportionate penalties clause of the Illinois constitution because the punishment was not

proportionate to the crime committed.

. Specifically, the court addressed whether it was

unconstitutional for both “minors” and adults to be sentenced to 20 years’ imprisonment for the

same crime under the same circumstances.

. The court, in concluding that it was not a

violation of the proportionate penalties clause, pointed out that a sentence to a reformatory is

markedly different than a prison sentence.

As relevant here, the court stated: “There is in the

law of nature, as well as in the law that governs society, a marked distinction between persons of

mature age and those who are minors,—the habits and the character of the latter are presumably,

to a large extent, as yet unformed and unsettled.”

Notably, the supreme court in Dorsey, in

finding that defendant did not establish cause for his proportionate penalties clause claim,

pointed out that the defendant there was well aware of Illinois’s long-standing recognition of the

special status of children, where he stated as much and cited to Bradley in his proportionate

penalties clause argument. Dorsey,

.

¶ 51 Returning to our supreme court’s conclusion in Dorsey that the defendant had failed to

establish cause for his proportionate penalties clause, we note that although we are not bound to

follow the decisions of our sister appellate court districts, (see O’Casek v. Children’s Home and

Aid Soc. of Illinois,

(2008)), we enjoy no such discretion with respect to

decisions issued by our state supreme court (see People v. Artis,

(2009)).

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Arguably, because the defendant’s proportionate penalties claim in Dorsey was determined to

have been res judicata, the court needed not address whether the claim constituted cause under

the Act, rendering its opinion thereon dictum.5 “The term ‘dictum’ is generally used as an

abbreviation of obiter dictum, which means a remark or opinion uttered by the way.” Cates v.

Cates,

(1993). Generally, such comments have no binding effect either as

authority or precedent within the rule of stare decisis.

However, “an expression of opinion

upon a point in a case argued by counsel and deliberately passed upon by the court, though not

essential to the disposition of the case, if dictum, is a judicial dictum.”

A judicial dictum is

entitled to significant weight and should be followed unless found to be erroneous.

“Even

obiter dictum of a court of last resort can be tantamount to a decision and therefore binding in the

absence of a contrary decision of that court.”

Thus, we believe that our supreme court’s

opinion as expressed in Dorsey regarding the cause requirement for successive postconviction

petitions, even if regarded as dictum, must be followed. Accordingly, consistent with the court’s

opinion in Dorsey, we, like the Fourth District in Summers and Haines, find that defendant has

not satisfied the cause prong of the cause-and-prejudice test. 6 Having so concluded, we need not

reach the prejudice component.

¶ 52 III. CONCLUSION

¶ 53 In sum, the rule announced in Miller does not provide cause for claims sought under the

proportionate penalties clause, where that clause of our state constitution has been in existence

5 Defendant’s initial postconviction petition, in which he could have raised the proportionate penalties claim, as well as his direct appeal, in which he argued that his mandatory life sentence was unconstitutional, implicates both forfeiture and res judicata. In light of the opinion expressed in Dorsey, we need not consider, whether either doctrine operates as a bar to defendant’s proportionate penalties clause claim here. 6 Although Dorsey involved a juvenile defendant, rather than a young adult defendant, we do not believe that distinction is relevant or that it would alter the court’s reasoning.

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long before the filing of defendant’s petition. See Dorsey,

. Thus, we find

that defendant has not satisfied the cause-and-prejudice test for his successive postconviction

petition. Accordingly, we affirm the circuit court’s dismissal of his motion for leave to file a

successive petition under the Act.

¶ 54 Affirmed.

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