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).

Order filed July 14, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-20-0181 v. ) Circuit No. 09-CF-426 ) MICHAEL WILSON, ) Honorable ) Kathy S. Bradshaw-Elliott, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court. Justice Wright concurred in the judgment. Presiding Justice McDade specially concurred. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court failed to consider defendant’s youth and its attendant characteristics before imposing an aggregate sentence of 59 years’ imprisonment.

¶2 Defendant, Michael Wilson, appeals from the Kankakee County circuit court’s denial of

his motion for leave to file a successive postconviction petition. Defendant asserts that the court

erred by denying his motion because he established cause and prejudice. Further, defendant requests that, if we remand the case, we order the case be assigned to a different judge. We vacate

defendant’s sentence and remand for a new sentencing hearing.

¶3 I. BACKGROUND

¶4 The State filed a juvenile petition against defendant, who was 14 years old. The State’s

petition alleged that defendant had committed first degree murder (720 ILCS 5/9-1(a)(1), (a)(2),

(a)(3) (West 2008)), and armed robbery (id. § 18-2(a)). Subsequently, the court granted the State’s

motion to transfer defendant’s case to criminal court, and a grand jury indicted defendant with the

charges alleged in the juvenile petition. The cause proceeded to a jury trial.

¶5 The trial evidence established that on December 27, 2008, the date of the alleged murder,

defendant was 14 years old. On that date, Ryan Graefnitz approached defendant and Byron Moore

and asked if they knew where to purchase cocaine. Defendant indicated that he did. Defendant

and Moore left in a vehicle with Graefnitz and two other individuals. Following defendant’s

directions, they arrived at an apartment building. Defendant, Moore, and Graefnitz exited the

vehicle and entered the apartment building. An individual announced that a robbery was about to

occur, and then several gunshots were fired. Witnesses observed Graefnitz exit the building and

collapse and defendant and Moore run from the scene. After fleeing, defendant told a friend that

he shot a man that he wanted to rob. Later, an autopsy confirmed that Graefnitz died from gunshot

related injuries.

¶6 The jury found defendant guilty of first degree murder and the lesser included offense of

attempted armed robbery. Additionally, the jury found that defendant did not personally discharge

the weapon. In anticipation of sentencing, the court ordered a presentence investigation report

(PSI).

2 ¶7 During the sentencing hearing, the court explained that defendant’s PSI was “about an

inch-and-a-half to two inches,” and within that report, there was no support for defendant’s

rehabilitative potential. Further, the court noted that defendant was “only 14 years of age” when

he committed the offenses. The court indicated the PSI showed defendant had attention deficit

hyperactivity disorder, defiance disorder, impulsive behavior, and “mild retardation.” The court

stated,

“the problem is when I look at you, even though you’re young, the past tells you a

lot about the future. And this shows you to be a very dangerous person ***. *** I

don’t believe that will change. I know you’re young. ***

*** I do believe you’re a danger to society. I believe you will continue to

be a danger to society. I’m not sure there’s any rehabilitation factor there that

you’re gonna follow. I guess you can prove me wrong when you are in prison. ***

[W]e saw that on the night of December 27th when we heard the facts that, you

know, you yelled out that it was gonna be a robbery. *** Graefnitz turns around

and runs away. At that point you could have just let him run. Nothing had

happened. But you decided to shoot—you and *** Moore decided that you’re

gonna shoot him in the back and leave him for dead ***.”

¶8 The court sentenced defendant to 55 years’ imprisonment for first degree murder and a

consecutive term of 4 years’ imprisonment for attempted armed robbery. On direct appeal, we

affirmed defendant’s convictions. People v. Wilson,

, ¶ 69.

¶9 On September 26, 2016, defendant filed a postconviction petition. The court summarily

dismissed defendant’s petition. On appeal, we affirmed the court’s summary dismissal. People v.

Wilson,

, ¶ 24.

3 ¶ 10 On March 27, 2020, defendant filed a motion for leave to file a successive postconviction

petition. He argued that under People v. Buffer,

, ¶ 42, his juvenile status at the

time of the offenses and his de facto life sentence required vacatur and remand for the court to

consider the Miller v. Alabama,

(2012) factors before imposing a de facto

life sentence. The court denied defendant’s motion. Defendant appeals.

¶ 11 II. ANALYSIS

¶ 12 Defendant argues that the circuit court erred in denying his motion for leave to file a

successive postconviction petition because he established cause where he could not have brought

his claim prior to Buffer,

, and prejudice because the court’s failure to consider his

youth and its attendant characteristics at sentencing rendered his de facto life sentence

unconstitutional. Defendant also asks, if we remand the case, that we order the case be assigned

to a different judge.

¶ 13 The Post-Conviction Hearing Act (Act) permits a criminal defendant to challenge the

proceedings which resulted in his conviction by asserting that “there was a substantial denial of

his or her rights under the Constitution of the United States or of the State of Illinois or both.” 725

ILCS 5/122-1(a)(1) (West 2018). The Act contemplates the filing of a single postconviction

petition. People v. Robinson,

. A defendant must obtain leave of the court

before he may obtain review of a subsequent postconviction petition. 725 ILCS 5/122-1(f) (West

2018); People v. McDonald,

(2010). To obtain leave, defendant must

satisfy the cause and prejudice test. McDonald,

. That is, the defendant

must demonstrate “cause” for failing to raise the error in prior proceedings and actual “prejudice”

resulting from the claimed error.

“ ‘Cause’ has been defined as an objective factor that

impeded defense counsel’s efforts to raise the claim in an earlier proceeding and ‘prejudice’ has

4 been defined as an error which so infected the entire trial that the defendant’s conviction violates

due process.”

We review de novo the denial of leave to file a successive postconviction

petition. People v. Bailey,

.

¶ 14 Defendant’s claim derives from the Supreme Court’s holding in Miller that mandatory life

sentences for a juvenile offender violates the eighth amendment prohibition against cruel and

unusual punishment. Miller,

. Miller requires that before imposing a life sentence

on a juvenile, the court shall consider the juvenile’s youth and its attendant characteristics.

¶ 15 In People v. Davis,

, our supreme court determined that Miller applies

retroactively. In People v. Reyes,

, our supreme court extended Miller to

de facto life sentences. In Buffer,

, our supreme court established a bright-

line rule that a sentence greater than 40 years’ imprisonment constitutes a de facto life sentence.

Following Buffer, 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.” Id. ¶ 27. The sentencing court may impose

a de facto life sentence “ ‘only if the trial court determines that the defendant’s conduct showed

irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility

of rehabilitation.’ ” People v. Lusby,

(quoting People v. Holman,

). To make this determination, the court may consider:

“ ‘(1) the juvenile defendant’s chronological age at the time of the offense and any

evidence of his particular immaturity, impetuosity, and failure to appreciate risks

and consequences; (2) the juvenile defendant’s family and home environment;

(3) the juvenile defendant’s degree of participation in the [offenses] and any

5 evidence of familial or peer pressures that may have affected him; (4) the juvenile

defendant’s incompetence, including his inability to deal with police officers or

prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile

defendant’s prospects for rehabilitation.’ ”

(quoting Holman,

).

See also Miller,

. We “look[ ] back to the trial and the sentencing hearing to

determine whether the trial court at that time considered evidence and argument related to the

Miller factors.” Lusby,

.

¶ 16 Here, we find that defendant’s Miller-based sentencing claim satisfied the cause and

prejudice test. First, defendant established cause because he could not raise his claim prior to

Miller and Buffer. See Davis,

(noting “Miller’s new substantive rule

constitutes ‘cause’ because it was not available earlier”). Second, defendant established prejudice,

as our review of the record shows that the court did not to consider defendant’s youth and its

attendant characteristics when it sentenced defendant to a de facto life sentence of 59 years’

imprisonment. See Buffer,

. Given the record’s support for defendant’s

postconviction claim, we find defendant is entitled to postconviction relief. See, e.g., Davis,

(granting postconviction relief on review of the denial of a motion for leave to file

a successive postconviction petition raising a Miller claim); People v. Wells,

, ¶ 28 (on appeal from the denial of leave to file a successive postconviction petition, the

appellate court vacated defendant’s sentence and remanded for a new sentencing hearing pursuant

to Buffer,

). Therefore, we vacate defendant’s sentence and remand for

a new sentencing hearing with directions that the court consider defendant’s youth and its attendant

characteristics. See Buffer,

.

6 ¶ 17 Finally, we take no position on defendant’s request for a new judge. We note that this court

previously found the circuit court did not exhibit bias when sentencing defendant. Wilson,

, ¶ 24. Our prior opinion does not preclude the filing of a motion with the

circuit court to substitute judge.

¶ 18 III. CONCLUSION

¶ 19 The judgment of the circuit court of Kankakee County is vacated in part and remanded

with directions.

¶ 20 Vacated in part and remanded with directions.

¶ 21 PRESIDING JUSTICE McDADE, specially concurring

¶ 22 I concur in the decision to vacate the sentence and remand for a new sentencing hearing. I

write separately to say that I believe we should accede to defendant’s request that we direct

that the case be assigned to another judge.

¶ 23 The trial court in this case has granted the State’s motion to try the juvenile defendant as

an adult; presided over the trial at which he was convicted; sentenced him while expressing its

belief that he had no rehabilitation potential; summarily denied an initial postconviction

petition; and denied him leave to file a successive postconviction petition, which has led to this

appeal.

¶ 24 In this latter effort, Wilson invoked Buffer, demonstrating that there was clearly cause to

grant leave to file the petition. The basis for the court’s denial of leave to file was that it found no

prejudice—an assessment we have found to be erroneous. As indicated in ¶ 15 of the Order, a de

facto life sentence is warranted “only if the trial court determines that the defendant’s conduct

showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the

possibility of rehabilitation.” People v. Holman,

. The trial court’s prior

7 decisions relative to this defendant are persuasive indicators that its denial of defendant’s petition

reaffirms its earlier assessment of defendant’s total lack of rehabilitative potential, implies that

reconsideration in light of the Miller factors would not make any difference, and permits an

appearance that the court is sufficiently invested in its earlier conclusions that defendant would not

get a fair and unbiased rehearing.

8