FIRST DISTRICT, FIRST DIVISION June 21, 2021

No. 1-17-3031

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 JUDICIAL DISTRICT _____________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Respondent-Appellee, ) Cook County, Illinois. ) v. ) No. 98 CR 30731 ) MATTHEW CARMICHAEL, ) Honorable ) Alfredo Maldonado, Petitioner-Appellant. ) Judge Presiding. _____________________________________________________________________________

JUSTICE COGHLAN delivered the judgment of the court. Justice Pierce concurred in the judgment. Justice Hyman specially concurred.

ORDER

¶1 Held: Defendant moved for leave to file successive postconviction petition, claiming that his 35-year sentence for a murder that he committed at the age of 19 violated Miller v. Alabama,

(2012), and the proportionate penalties clause of the Illinois constitution. We affirm the circuit court’s denial of leave to file, since defendant failed to satisfy the cause-and-prejudice test for a successive postconviction petition.

¶2 Following a jury trial, defendant Matthew Carmichael was convicted of first-degree

murder, attempted first-degree murder, and aggravated discharge of a firearm. He was sentenced No. 1-17-3031

to concurrent terms of 35 years’ imprisonment for the murder and 30 years’ imprisonment for the

attempted murder. On direct appeal, this court granted defense counsel’s motion for leave to

withdraw pursuant to Anders v. California,

(1967), and affirmed his convictions.

People v. Carmichael, No. 1-01-2564 (2003) (unpublished order under Supreme Court Rule 23).

We also affirmed the circuit court’s dismissal of defendant’s subsequent pro se postconviction

petition (People v. Carmichael, No. 1-05-0097 (2006) (unpublished order under Supreme Court

Rule 23)) and denial of leave to file a successive postconviction petition (People v. Carmichael,

).

¶3 On July 13, 2017, defendant sought leave to file another successive postconviction

petition, claiming that because he was 19 at the time of these offenses, his sentence violated the

principles articulated in Miller v. Alabama,

(2012). The circuit court denied leave

to file, finding that defendant failed to meet the cause-and-prejudice test. For the reasons that

follow, we affirm.

¶4 BACKGROUND

¶5 Trial Evidence

¶6 Defendant was convicted of first-degree murder of Alvonzo Williams, attempted first-

degree murder of Edward McCree and Sparkie Ashford, and aggravated discharge of a firearm.

Shortly after midnight on November 10, 1998, defendant, a member of the Gangster Disciples

street gang, fired six or seven shots at three individuals he saw emerging from a gangway, fatally

wounding Williams. Although he was with fellow gang members at the time of the shooting, he

admitted to police that he was the only shooter. Defendant’s friend Eddie Bass had been shot and

killed one year earlier by members of a rival gang. He fired at the three approaching individuals

in retaliation for Bass’ death and because he thought they were coming to kill him.

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¶7 At the sentencing hearing, the court considered defendant’s presentence investigation

report (PSI), which reflected that he was “kicked out of school” in eleventh grade for failure to

attend classes. He had previously been employed at his grandfather’s auto shop but “just stopped

going over there” in 1997 and had not obtained other employment. In jail, he had enrolled in

GED classes and planned to take classes in auto mechanics.

¶8 The PSI also indicated that defendant had a “rough” childhood because of his parents’

substance abuse problems, although he denied any neglect or physical abuse. He joined the

Gangster Disciples at age 14 but quit shortly after being arrested on these charges because he

wanted “to turn [his] life around, go the right way.” His criminal history included juvenile

convictions for robbery, possession of a controlled substance, possession of cannabis, and

unlawful use of a weapon, and adult convictions for criminal trespass to a vehicle and possession

of cannabis.

¶9 The court also considered the victim impact statement of Williams’ sister describing the

effects of Williams’ death on his family, and a letter in mitigation from defendant’s great-aunt

describing him as “a good boy that got off on the wrong track” and endured an “extremely

negative” childhood, “lived in deplorable conditions and gang infested communities” and was

“forced to the streets for survival.”

¶ 10 The State argued that defendant deserved a sentence “far in excess of the minimum”

because he “went out in a cold, calculated, bloodthirsty manner” to “hunt somebody down” in a

gang retaliation. His extensive criminal history included “a crime of violence,” and “his past

reflects that he has failed to take responsibility for his actions throughout his life.”

¶ 11 The defense asked the court to consider defendant’s “bad upbringing,” arguing that his

father was “emotionally abusive to everybody, physically abusive to his mother, *** [and]

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thwarted any attempt [defendant] had to socialize normally, stay away from gangs.” He argued

that defendant “can be a productive member of society. He’s too young to toss away at this point,

and that’s what we’re asking for, is a chance for him to demonstrate that somewhere down the

line.”

¶ 12 Prior to imposing sentence, the court commented:

“This case is so typical of the kind of devastation that is visited on both families due to

the senseless gang violence that permeates our city. Not only does the Williams family

lose their brother, but your family also loses a son, a father, etcetera, and for the life of

me I cannot figure out why when you gangbangers are out on the street you never think

about this day, you never think about the consequences of your actions, what’s going to

happen if I shoot this gun and more importantly from the selfish nature of gang activity it

would seem to me you would be thinking what’s going to happen to me.”

¶ 13 Postconviction Proceedings

¶ 14 On July 13, 2017, defendant filed a second motion for leave to file a successive

postconviction petition challenging his sentence based on Miller,

, which

prohibits life sentences for juvenile offenders unless the court considers the defendant’s “youth

and its attendant characteristics.” Defendant argued that “new research in neurobiology and

developmental psychology” regarding brain immaturity defines adolescents as anyone between

the ages of 10 and 24. He also cited a March 2013 scientific paper describing adolescence as a

“period of neural imbalance” that may cause “rewards and emotions [to] affect behavior more

strongly than rational decision making processes.”

¶ 15 Defendant alleged that he was prejudiced by the trial court’s failure to consider this brain

science or his potential for rehabilitation at his sentencing hearing. Despite the trial court’s

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“anemic sentencing pronouncement,” defendant had “spent his 19 years of incarceration

reforming and rehabilitating himself” by earning a GED, becoming a registered barber, working

toward an associate’s degree, and maintaining good relationships with his family, fellow

inmates, and correctional staff.

¶ 16 On October 13, 2017, the court found that defendant had failed to satisfy the cause-and-

prejudice test for filing a successive postconviction petition. The court observed that the Miller

decision was issued in June 2012, prior to the time defendant filed his initial motion for leave to

file a successive postconviction petition, and that Miller “is limited to juvenile offenders.” In

addition, defendant had not been sentenced to life in prison and the court had considered his

youth and rehabilitative potential in imposing the discretionary sentence of 35 years in prison.

¶ 17 ANALYSIS

¶ 18 The Post-Conviction Hearing Act allows a convicted defendant to assert a substantial

denial of his constitutional rights under the United States Constitution or the Illinois Constitution

or both. People v. Hodges,

(2009). We review the circuit court’s denial of leave

to file a successive postconviction petition de novo. People v. Bailey,

.

Because the Act contemplates the filing of a single petition (People v. Holman,

,

¶ 25 (citing 725 ILCS 5/122-3 (West 2010)), leave to file a successive petition will only be

granted if the defendant raises a colorable claim of actual innocence or alleges sufficient facts to

satisfy the cause-and-prejudice test. Id. ¶ 26; People v. Smith,

. To establish

“cause,” defendant must show an objective factor external to the defense that prevented him

from raising his claim in his initial postconviction proceeding. Holman,

.

To establish “prejudice,” defendant must show that the claimed constitutional error “so infected

his trial that the resulting conviction violated due process.”

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¶ 19 Here, defendant has not alleged sufficient facts to establish prejudice, as his claims are

not legally cognizable under either Miller or the proportionate penalties clause of the Illinois

Constitution.

¶ 20 In Miller,

, the United States Supreme Court held that a juvenile offender

may not be sentenced to mandatory life in prison without possibility of parole. Our supreme

court has explained that Miller’s language is “ ‘significantly broader than its core holding.’ ”

(People v. Buffer,

(quoting Holman,

)). To prevail on

a Miller claim, “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.” (Emphasis added.) Id. ¶ 27. A de facto life sentence for a juvenile is any sentence

greater than 40 years. Id. ¶ 41.

¶ 21 Defendant plainly does not fall within the ambit of Miller for two reasons. First, Miller’s

eighth amendment protections apply only to juveniles, not to young adults like defendant. People

v. Harris,

(rejecting defendant’s Miller claim because “for sentencing

purposes, the age of 18 marks the present line between juveniles and adults. As an 18-year-old,

defendant falls on the adult side of that line.”); People v. Herring,

(“[T]he [Supreme] Court drew a line at the age of 18 years; while it acknowledged that the

line was arbitrary, it ‘must be drawn.’ ”) (quoting Roper v. Simmons,

(2005)).

Second, defendant’s 35-year sentence is not a de facto life sentence under Buffer,

. Thus, he could not prevail on a Miller claim even if he were eligible for the eighth

amendment protections afforded juvenile offenders.

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¶ 22 Defendant nevertheless argues that his sentence violates the proportionate penalties

clause of the Illinois Constitution, which requires that “all penalties shall be determined

according to the seriousness of the offense and with the objective of restoring the offender to

useful citizenship.” Ill. Const. 1970, art. I, § 11; see People v. Gipson,

(the proportionate penalties clause is not determined in lockstep with the eighth amendment

but may provide additional limitations on penalties). Under this provision, a sentencing statute is

unconstitutional as applied when it “is shocking to the moral sense of the community” based

upon an “ ‘evolving standard[] of decency that mark[s] the progress of a maturing society.’ ”

People v. Miller,

(2002) (Leon Miller) (quoting Trop v. Dulles,

(1958)).

¶ 23 Imposing a 35-year sentence for a crime involving the murder of one victim and the

attempted murder of two others does not shock the moral sense of the community. This sentence

is well within the statutory 20-to-60-year range for the offense of first-degree murder (730 ILCS

5/5-8-1(a)(1)(a) (West 1998)) and is distinguishable from cases leaving no discretion to the trial

judge due to mandatory sentencing requirements. Moreover, the sentence accurately reflects

defendant’s personal culpability in these shootings. Contrast with Leon Miller,

(mandatory life sentence under multiple-murder statute “does not accurately represent

defendant’s personal culpability” where the 15-year-old defendant served as a lookout during the

shooting but never handled a gun).

¶ 24 This court has rejected defendants’ attempts to extend Miller principles via the

proportionate penalties clause to crimes personally committed by young adults. In People v.

Handy,

, the 18 ½-year-old defendant was sentenced to 60 years’

imprisonment for home invasion, armed robbery, aggravated kidnapping, and aggravated

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criminal sexual assault. In seeking leave to file a successive postconviction petition, he argued

that he was entitled to resentencing under the proportionate penalties clause due to his youth, his

rehabilitative potential, and the peer pressure he faced from his codefendants. Id. ¶¶ 31-32. In

rejecting that argument, we emphasized his individual culpability for his crimes:

“Whether a defendant physically committed the offense is a significant consideration for

courts tasked with deciding whether to extend Miller principles to a young adult under

the proportionate penalties clause. [Citations.] Here, we cannot overlook defendant’s

active participation where he invaded the victims’ house with the codefendants, held a

gun to Mr. W.’s head to prevent him from interfering while the codefendants robbed and

attacked his family and kidnapped his young daughter, and then actively participated in

the gang rape.” Id. ¶ 40.

¶ 25 Similarly, in People v. Carrion,

, the 19-year-old defendant

entered the apartment of an elderly woman and stabbed her to death. He was convicted of

residential burglary and murder and sentenced to 55 years’ imprisonment. Id. ¶ 16. He sought,

and was denied, leave to file a successive postconviction petition raising a proportionate

penalties claim. In affirming, we held that his sentence “does not shock the moral sense of the

community and thus is not cruel or degrading,” because he “committed [his crimes] as the

principal at the legal age of adulthood.” Id. ¶ 30; see also People v. Pittman,

(not extending Miller principles where the 18-year-old defendant personally

stabbed three victims to death); People v. Thomas,

(not

extending Miller principles where the 18-year-old defendant “was the active shooter convicted of

first degree murder using a firearm that proximately caused one victim’s death”).

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¶ 26 In this case, defendant embarked on a mission of revenge against rival gang members,

believing that they had killed his friend. He argues that he is entitled to a new sentencing hearing

because the trial court did not properly consider “significant mitigating factors,” including his

youth, susceptibility to peer pressure, and “failure to appreciate the risks of shooting at someone

down the block the instant he felt threatened.” But it is not our role to second-guess the trial

court’s judgment. See People v. Croft,

(“nothing in Miller ***

suggests that we are free to substitute our judgment for that of the sentencing court”), appeal

denied,

(2018), and cert. denied sub nom. Croft v. Illinois,

(2018).

Here, the court considered all of the statutory factors in aggravation and mitigation and

appropriately emphasized defendant’s personal culpability, observing that he failed to “think

about the consequences of [his] actions [and] what’s going to happen if [he shot] this gun.”

¶ 27 In People v. Thompson,

, the 19-year-old defendant was convicted of two

counts of first-degree murder. On appeal from the denial of his section 2-1401 petition for relief

from judgment, defendant raised a Miller claim for the first time, which the Thompson court held

was forfeited. Id. ¶ 39. Though mentioning in dicta that defendant was “not necessarily

foreclosed” from raising a Miller claim in a successive postconviction petition, the court

expressed no opinion on the merits of the claim. Id. ¶ 44.

¶ 28 People v. Harris,

, and People v. House,

,

both involved the imposition of mandatory sentences that left no discretion to the trial judge. In

Harris, defendant received a mandatory 76-year sentence for a murder and an attempted murder

he committed at the age of 18. In imposing sentence, the court stated, “I am sorry that the

sentencing parameters are such that my options are somewhat limited.” Harris,

. Our supreme court rejected defendant’s proportionate penalties claim on direct appeal,

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finding it “premature,” but reiterated that defendant was “not necessarily foreclosed” from

raising his claim in a postconviction petition. Id. ¶¶ 46, 48.

¶ 29 A year later, in House,

, this court vacated a mandatory

natural life sentence for a 19-year-old who acted as a lookout while his fellow gang members

committed a murder. In doing so, we found it significant that “[t]he [trial] court’s ability to take

any factors into consideration was negated by the mandatory nature of defendant’s sentence.” Id.

¶ 64. Because the sentence was mandatory, the court was precluded from taking into account

defendant’s potential for rehabilitation, which was “especially relevant” given his lack of

physical participation in the shooting. Id.

¶ 30 Here, unlike in Harris and in House, the trial court’s discretion to take mitigating factors

into consideration was not constricted by mandatory sentencing provisions, and defendant was

not convicted on a theory of accountability; he was the actual shooter. Under these facts,

defendant has failed to state a legally cognizable claim under the proportionate penalties clause.

¶ 31 Defendant additionally argues that a recent change in the law demonstrates that his

sentence “is shocking to the moral sense of the community” (Leon Miller,

).

Pub. Act 100-1182 (eff. June 1, 2019) (adding 730 ILCS 5/5-4.5-110); Pub. Act 101-288, § 5

(eff. Jan. 1, 2020) (amending 730 ILCS 5/5-4.5-110(b) and renumbering as 730 ILCS 5/5-4.5-

115(b)). Under this provision, with exceptions not relevant here,

“[a] person under 21 years of age at the time of the commission of first degree murder

who is sentenced on or after June 1, 2019 (the effective date of Public Act 100-1182)

shall be eligible for parole review by the Prisoner Review Board after serving 20 years or

more of his or her sentence.” 730 ILCS 5/5-4.5-115(b) (eff. Jan. 1, 2020).

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In defendant’s opinion, this statute demonstrates that “[the] community *** would be shocked”

by his 35-year sentence. We disagree. Section 5-4.5-115(b) involves eligibility for parole review,

not a limitation on sentencing, and is irrelevant to the issues raised in this appeal.

¶ 32 CONCLUSION

¶ 33 For the foregoing reasons, we affirm the judgment of the trial court denying defendant

leave to file a successive postconviction petition.

¶ 34 Affirmed.

¶ 35 JUSTICE HYMAN, specially concurring:

¶ 36 I join the majority’s judgment but cannot join its reasoning. I continue to believe People

v. Handy,

, and the cases relying on it were wrongly decided.

Importantly, a sounder and simpler way exists to resolve this case. Under People v. Buffer,

, only a sentence of 40 years or more implicates the constitutional protections against

juvenile life sentences in Miller v. Alabama,

(2012). Carmichael’s 35-year

sentence, which would not be a de facto life sentence even for a juvenile, cannot justify the filing

of a successive postconviction petition for a young adult raising a Miller claim. That is all we

need to say. Because the majority says more, I join only its judgment.

¶ 37 I have explained in detail the reasons I believe Handy’s focus on the defendant’s

heightened level of participation in the offense and the discretionary nature of a defendant’s de

facto life sentence do not justify withholding Miller’s protections. E.g. People v. Ruiz,

. In short, Miller itself applied to offenders who were the principals in

their crimes—it follows, then, that if a defendant can show Miller applies to him or her as a

young adult, the Illinois Constitution may prohibit a life sentence even for a principal offender

whose crimes are heinous. In a similar vein, our supreme court has repeatedly applied Miller to

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discretionary sentences and so the same logic applies—if a young adult can show he or she is

entitled to Miller’s protections, those protections do not vanish because the sentence was

discretionary.

¶ 38 Of course, the necessary predicate, following Handy or not, turns on a young adult

offender having shown Miller applies in the first place. The threshold requirement for applying

Miller is the trial court imposing a life sentence or de facto life sentence. Buffer,

(describing first step in Miller analysis as determining whether defendant “was subject to a

life sentence, mandatory or discretionary, natural or de facto”). For juvenile offenders, only a

sentence of more than 40 years is a de facto life sentence. Id., ¶ 42. As far as I can tell,

Carmichael has cited no authority for lowering Buffer’s 40-year ceiling for young adult

offenders. His sentence, then, is not a de facto life sentence and Miller does not apply no matter

his age.

¶ 39 Because I would not rely on Handy’s flawed analysis and because this case can be

resolved without addressing Handy at all, I join the majority’s judgment only.

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