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 February 10, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-20-0003 v. ) Circuit No. 89-CF-1176 ) ROGER SHAW, ) ) Honorable Sarah F. Jones, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Presiding Justice O’Brien and Justice Lytton concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in denying defendant leave to file a successive postconviction petition.

¶2 Defendant, Roger Shaw, pled guilty to two counts of first degree murder, one count of

home invasion, and one count of armed robbery committed when he was 15 years old. The court

sentenced him to concurrent sentences of 80 and 30 years’ imprisonment for felony murder and

home invasion, respectively, under a sentencing scheme that allowed for a day-for-day good-

conduct credit. Defendant engaged in numerous unsuccessful direct and collateral attacks on his sentence. In this appeal, defendant argues the circuit court’s denial of his pro se petition requesting

leave to file a successive postconviction petition under the Post-Conviction Hearing Act (725 ILCS

5/122-1 et seq. (West 2018)) constituted error. The circuit court found that defendant failed to

plead cause and prejudice. Defendant argues that his sentence violates the eighth amendment of

the United States Constitution and the proportionate penalties clause of the Illinois Constitution.

We affirm the lower court’s denial of the request for leave to file a successive postconviction

petition.

¶3 I. BACKGROUND

¶4 A. Defendant’s Guilty Plea

¶5 In April 1990, defendant pled guilty to one count of felony murder based on armed robbery

and one count of home invasion for breaking into the home of Isabel Gloria, stabbing her to death,

and stealing numerous items from her home. Defendant was 15 years old at the time. The guilty

plea was an open plea, allowing for the State to argue for any penalty applicable to the offenses

and the circuit court to determine the appropriate sentence.

¶6 The State presented the factual basis to the court as follows. On December 4, 1989, at 2:20

p.m., Isabel’s husband, Henry Gloria, found the nude, dead body of Isabel on their enclosed porch.

Her clothing was found in a pile near the refrigerator in the kitchen of the Gloria residence.

Defendant later confessed to stabbing Isabel with a knife. Defendant confessed that his motivation

at the time was to see Isabel “naked.” The autopsy report revealed the cause of death as multiple

stab wounds to the chest, head, abdomen, and extremities. Isabel also had defensive wounds on

her forearms. Analysis of Isabel’s fingernail clippings revealed a blood type consistent with that

of defendant. The knife used to stab Isabel measured 7¼ inches in length. The knife was found

lodged in Isabel’s wrist.

-2- ¶7 If called on at trial, Henry Gloria would testify that defendant was a neighbor from across

the street. Henry knew defendant for a number of years. Defendant mowed his yard; Henry would

take defendant to Dairy Queen. A number of personal items were missing from the house,

including a 1978, 100-peso coin, a black onyx diamond ring, a bracelet with the name “Qui” on it,

a class ring, a gold ring, wedding rings, and other items. Isabel was the mother to the couple’s

three children ranging in age from 5 to 11 years old.

¶8 Members of the Joliet Police Department conducted a search of the house that defendant

was staying in adjacent from the Gloria residence. The missing items from the Gloria residence

were found in a plastic bag located between the mattress and box spring of a bed. In the same room

that the missing items were discovered, officers found a spiral notebook and a piece of paper with

defendant’s name on it. A piece of paper from the spiral notebook was found in the Gloria

residence containing a note to Isabel. Forensic examination indicated a “strong probability”

defendant authored the note. The note contained a message to the effect that the author had a knife

and Isabel should not scream. Photographs taken by police show that defendant had a scratch on

both his face and stomach.

¶9 The evidence produced at trial would also show that defendant had a conversation with

Rosie Pinnick, a neighbor, not far from the murder scene on the same day as the offense. Defendant

confessed to Pinnick that “he stabbed a friend of his and felt that the friend could be dead.”

Defendant claimed he acted in self-defense stating, “the friend had hit him in the head.” Defendant

also had a conversation with Tony White. Defendant told White that “he messed up a Mexican

lady” and also questioned White on whether “people’s bowels move when they are dead.” Isabel

was ethnically Hispanic. White noticed spots of blood on defendant’s clothing during the

conversation. Two more individuals witnessed this conversation take place although they were not

-3- privy to the content thereof. One individual noticed what appeared to be a dark substance, possibly

nail polish, on defendant’s clothing.

¶ 10 Defendant agreed to the factual basis and the court accepted the State’s proffer. Following

a recess, defendant made a statement to the court aimed at “correcting” the State’s factual basis.

Defendant claimed he did not inflict the fatal stab wound to Isabel but merely stabbed her in the

stomach. There was another individual present. Defendant and the other individual were looking

for money to purchase drugs. They decided to target the Gloria residence. Defendant retrieved a

knife from his grandmother’s. He also wrote a note on a piece of paper. He went to the Gloria

residence, gave Isabel the note, and then he and the other individual rushed into the home knocking

her down. Defendant instructed the other individual to hold Isabel while he went upstairs to look

for a gun. Unable to locate a gun, he began grabbing items of value instead. Isabel broke free,

running into the kitchen. Defendant and his accomplice regained control of Isabel and forced her

to remove her clothing. Isabel broke free again and armed herself with an iron. During her attempt

to escape, defendant stabbed her in the stomach while the other individual stabbed her in the back.

Defendant ran back upstairs and stuffed his pockets full of more items. While upstairs, the other

individual stabbed Isabel multiple times. The court found there was still a sufficient factual basis

for defendant’s plea.

¶ 11 B. Sentencing

¶ 12 The matter proceeded to sentencing. The State recommended a natural life sentence

without the possibility of parole, noting the offense was “something out of a horror movie,”

accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The State

argued defendant posed a continuing threat and exhibited bitterness and hatred toward women

such that he was likely to reoffend. Defense counsel argued there were mitigating factors in

-4- defendant’s background, indications of rehabilitative potential, and that a sentence of life without

the possibility of parole was inappropriate. Counsel argued that defendant’s youth and the

unfortunate circumstances surrounding his upbringing had to be considered as mitigating factors.

¶ 13 In imposing defendant’s sentence, the court commented that it had researched appellate

court cases on juvenile sentencing in matters similar to the one before it. Considering the evidence

and arguments, the court found the offense exceptionally brutal, heinous, and indicative of wanton

cruelty. The court noted defendant’s history of delinquency, that he was not mentally impaired,

and a pattern “of not being able to conform to society.” The court found in aggravation that the

facts of the crime suggested that the offense was premeditated, noting defendant came to the Gloria

residence with a knife and a note telling Isabel not to scream. The court found in mitigation that

defendant pled guilty, expressed remorse, that he came from a socially deprived background, he

was abused, and was deprived the nurturing and guidance one would want for a child. The court

found it “very significant” that “we are dealing with a very young person in this case.”

Unconvinced that defendant deserved a life sentence, the court instead imposed a sentence of 80

years for felony murder to be served at 50% if defendant was able to amass the possible day-for-

day good-conduct credit provided for under the sentencing scheme.

¶ 14 C. Subsequent Challenges to Sentence

¶ 15 Following sentencing, defendant sought to withdraw his guilty plea and vacate his

conviction or, in the alternative, modify or reduce his sentence. The court denied defendant’s

motion to withdraw his guilty plea, as well as the motion to modify or reconsider the sentence.

The court also sentenced defendant to a concurrent sentence of 30 years on the home invasion

charge. Direct appeals in People v. Shaw, No. 3-90-0707 (1991) (unpublished order under Illinois

Supreme Court Rule 23), and People v. Shaw, No. 3-92-0073 (1992) (unpublished order under

-5- Illinois Supreme Court Rule 23) followed. Neither appeal resulted in a change to defendant’s

sentence. Defendant filed the first collateral challenge to his sentence in 2000. Numerous collateral

challenges including multiple postconviction petitions and multiple petitions for relief from

judgment followed. None of these challenges succeeded.

¶ 16 In August 2019, defendant filed a motion requesting the circuit court grant leave to file

another successive postconviction petition. Relying on the decisions in Miller v. Alabama,

(2012), and its progeny, defendant argued that his 80-year sentence for a crime committed

when he was 15 years old was unconstitutional as-applied under the eighth amendment to the

United States Constitution (U.S. Const., amend. VIII) and under the proportionate penalties clause

of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11). Defendant’s successive

postconviction petition asserted that the sentencing court did not adequately consider his youth

and its attendant characteristics in imposing the sentence. Further, that the 80-year sentence

amounted to an unconstitutional de facto life sentence as-applied under the eighth amendment to

the United States Constitution and ran afoul of the Illinois proportionate penalties clause. The

circuit court denied leave to file the successive petition, as well as a motion to reconsider. The

court reasoned defendant failed to detail objective factors that prevented him from raising the

constitutionality of the sentence nor did defendant explain the resulting prejudice.

¶ 17 Defendant appeals.

¶ 18 II. ANALYSIS

¶ 19 The Act (725 ILCS 5/122-1 et seq. (West 2018)) provides an avenue for defendants to

assert that there was a substantial denial of rights under the Constitution of the United States or of

the State of Illinois, or both, in the proceedings resulting in defendant’s conviction. People v.

Lusby,

, ¶ 27 (quoting 725 ILCS 5/122-1(a)(1) (West 2014)). The Act only

-6- contemplates defendant’s filing of a single petition. Id. Accordingly, courts disfavor successive

postconviction petitions as they plague the finality of criminal litigation. People v. Davis,

. When bringing a successive petition, a defendant faces immense hurdles relating to

procedural default and any subsequent allegation of a constitutional deprivation not previously

raised is considered forfeited.

One basis for relaxing this procedural forfeiture is where the

defendant can show “cause” and “prejudice” for failing to raise the claim earlier. 725 ILCS 5/122-

1(f) (West 2018).

¶ 20 A defendant 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). Prejudice is evidenced “by demonstrating that the claim not raised during his or

her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence

violated due process.”

We review the denial of leave to file a successive postconviction petition

de novo. Lusby,

.

¶ 21 A. Miller and its Progeny

¶ 22 Defendant argues the lower court erred in denying leave to file a successive postconviction

petition owing to the fact that the 80-year sentence for a crime committed when defendant was 15

years old constitutes a de facto life sentence that was imposed without proper consideration of his

youth and its attendant circumstances and absent a finding of permanent incorrigibility. Defendant

avers he has shown the requisite cause and prejudice by asserting that Miller was decided after

both his sentencing and initial postconviction petition, and that his sentence was imposed without

adequate consideration of his youth at the time of the offense or a finding of permanent

incorrigibility.

-7- ¶ 23 Defendant’s opening brief was filed in March 2021. In July 2021, our supreme court

decided People v. Dorsey,

, finding that a sentence imposed under a statutory

scheme that allows for an individual sentenced as a juvenile to be released after serving 40 years

or less of the term of imprisonment imposed is not a de facto life sentence. The State argues that

Dorsey obviates defendant’s arguments relating to Miller and its progeny. In the alternative, the

State argues the sentencing court engaged in considerations related to defendant’s youth and

attendant circumstances to such an extent that the court’s sentence passes constitutional muster.

¶ 24 In Miller, the United States Supreme Court concluded that a mandatory life sentence

without the possibility of parole prevented the consideration of a juvenile defendant’s youth and

attendant circumstances. Miller,

. The Court made clear that when sentencing a

juvenile defendant to life without parole, there must be “the opportunity to consider mitigating

circumstances before imposing the harshest possible penalty for juveniles.”

. In People

v. Reyes,

, our supreme court applied the protections afforded in Miller to

sentences constituting de facto life sentences. In People v. Buffer,

, our

supreme court thoroughly analyzed Miller and its progeny finding,

“to prevail on a claim based on Miller and its progeny, a defendant

sentenced for an offense committed while a juvenile must show that (1) the

defendant was subject to a life sentence, mandatory or discretionary, natural

or de facto, and (2) the sentencing court failed to consider youth and its

attendant characteristics in imposing the sentence.”

¶ 25 The Buffer court went on to establish a bright-line rule that a sentence that exceeds 40 years

constitutes a de facto life sentence. Id. ¶ 41. As explained above, our supreme court recently issued

its opinion in Dorsey, finding that day-for-day good-conduct credit is a factor to be considered

-8- when determining whether a defendant received a de facto life sentence. Dorsey,

. If the application of the day-for-day credit allows for an opportunity of release prior to the

line drawn in Buffer, a challenge to a sentence pursuant to Miller must fail. Id. ¶ 50.

¶ 26 We agree with the State that Dorsey obviates defendant’s challenge to his sentence

pursuant to Miller. Considering the statutory scheme that allows for defendant to serve his 80-year

sentence at 50%, as we must per Dorsey, defendant’s sentence does not exceed the 40-year

threshold laid out in Buffer. Ergo, his contention that his sentence is “essentially” a de facto life

sentence that runs afoul of the eight amendment fails as a matter of law as “Miller’s additional

protections for juvenile offenders apply only when a trial court lacks, or refuses to use, discretion

in sentencing a juvenile offender to a life, or de facto life, sentence.” People v. Jones,

. The sentence complained of in this appeal qualifies as neither life nor a sentence

that exceeds 40 years qualifying as a de facto life sentence. Defendant attempts to distinguish

Dorsey, but those efforts are unpersuasive. 1 Defendant has an opportunity to demonstrate maturity

and rehabilitation so that he only needs to serve 40 years of his aggregate sentence. See Dorsey,

. Accordingly, defendant failed to advance constitutional claims cognizable

under Miller. The lower court properly denied his motion for leave to file a successive

postconviction petition based on this claim.

¶ 27 Even if defendant’s sentence was 80 years and one day to be served at 50%, thereby

invoking the additional protections afforded by Miller, the lower court explicitly considered

defendant’s youth, attendant circumstances, and the unfortunate circumstances surrounding his

childhood in mitigation. Even though the sentencing hearing took place approximately 22 years

1 We also note defendant relies on People v. Peacock,

, ¶ 14 vacated, No. 125340, (Ill. Nov. 24, 2021) (supervisory order). A case that was vacated by Dorsey. -9- before Miller, the hearing was nonetheless Miller compliant. The court found it “very significant”

that defendant was a youthful offender and opined it was “ not convinced that this is a case where

the court should impose a life sentence.” The court declined the State’s request to sentence

defendant to a term of natural life in prison and then exercised its discretion in sentencing

defendant.

¶ 28 Moreover, defendant’s contention that the court erred in failing to make an express finding

of incorrigibility is laid waste by the recent decision of Jones v. Mississippi,

(2021).

In Jones, the United States Supreme Court found that Miller does not mandate an express finding

of permanent incorrigibility before imposing a sentence of life without parole on a juvenile

defendant.

. Given that defendant’s sentence is not a life sentence in any sense and

Miller does not mandate an express finding of incorrigibility, defendant’s claim is not cognizable

under the eighth amendment.

¶ 29 B. Proportionate Penalties Clause

¶ 30 Defendant argues that, even if we find the challenge to his sentence pursuant to Miller fails

—which we do—his sentence nonetheless violates the proportionate penalties clause of the Illinois

Constitution where the court imposed defendant’s sentence absent both an appropriate

consideration of his youth and an express finding of irreparable incorrigibility. Defendant

essentially regurgitates the arguments under his Miller claim to support his proportionate penalties

clause claim.

¶ 31 The proportionate penalties clause of the Illinois Constitution requires 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 provision prohibits

punishment that “is cruel, degrading, or so wholly disproportionate to the offense as to shock the

- 10 - moral sense of the community.” People v. Leon Miller,

(2002). Proportionality

is determined in view of “the gravity of the defendant’s offense in connection with the severity of

the statutorily mandated sentence within our community’s evolving standard of decency.”

. Again, defendant must establish cause and prejudice to pursue this claim in a successive

postconviction petition. See supra ¶ 20.

¶ 32 Defendant argues he was unable to raise his proportionate penalties argument in his initial

postconviction petition pointing to Miller and subsequent cases creating new constitutional rules

that were unavailable to him. Miller was decided in 2012—12 years after defendant filed his initial

postconviction petition. The State concedes in its brief that defendant has sufficiently pled cause

for failing to previously raise this claim. We are not bound by this concession. People v. Austin,

.

¶ 33 Citing Leon Miller,

, defendant argues “[t]he Illinois Supreme Court

has repeatedly recognized, both before and after the United States Supreme Court’s watershed

decision in Miller, ‘the long-standing distinction in Illinois between adult and juvenile offenders,’

and that young defendants have greater rehabilitative potential.” We agree. There is a longstanding

distinction in Illinois between adult and juvenile offenders. See People ex rel. Bradley v.

Superintendent, etc., of Illinois State Reformatory,

(1894). However, the above-

quoted statement from defendant’s briefing in itself evidences a failure to plead cause for not

previously raising this claim in the numerous challenges lodged against his sentence.

¶ 34 We again turn to Dorsey to find support for this logic. In addition to the claim under Miller,

the defendant in Dorsey also advanced a proportionate penalties clause argument. Although the

court in Dorsey found the defendant’s proportionate penalties claim in the successive petition

- 11 - forfeited and barred by res judicata, even absent forfeiture and res judicata, the court found the

defendant failed to establish cause. Dorsey,

. The court explained:

“Miller’s announcement of a new substantive rule under the eighth

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

the proportionate penalties clause. See Patterson,

, ¶ 97 (‘A

ruling on a specific flavor of constitutional claim may not justify a similar

ruling brought pursuant to another constitutional provision.’).” Id. ¶ 74.

¶ 35 The court also found People v. LaPointe,

, instructive. LaPointe

found that the proportionate penalties clause “was in existence” when the defendant in that case

filed his initial postconviction petition and citation to Miller in a subsequent request for leave to

file did not provide cause for a successive petition based on the clause. Id. ¶ 55. As defendant,

Dorsey, and LaPointe all acknowledge, Illinois courts have long recognized the differences

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

Ergo, Miller’s unavailability prior to 2012 at best deprived defendant of “some helpful support”

for his state constitutional law claim, which is insufficient to establish “cause.” Id. ¶ 59; see also

People v. Guerrero,

(“[T]he lack of precedent for a position differs from

‘cause’ for failing to raise an issue, and a defendant must raise the issue, even when the law is

against him, in order to preserve it for review.”). Accordingly, defendant did not establish a prima

facie case for cause for failing to previously raise the proportionate penalties clause argument.

Accordingly, the lower court did not err.

¶ 36 III. CONCLUSION

¶ 37 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 38 Affirmed.

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