No. 1-17-2390 Opinion filed March 10, 2022 Fourth Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit ) Court of Cook County. Plaintiff-Appellee, ) ) v. ) No. 92 CR 27511 ) JUAN FIGUEROA, ) Honorable ) Michael B. McHale, Defendant-Appellant. ) Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion. Presiding Justice Gordon specially concurred, with opinion.

OPINION

¶1 Defendant, Juan Figueroa, appeals an order of the circuit court denying him leave to file a

successive postconviction petition challenging the 75-year sentence he received for a murder he

committed at the age of 17. He contends that the sentence is a de facto life sentence that is

unconstitutional under Miller v. Alabama,

(2012), because it was imposed without

adequate consideration of his youth and its attendant characteristics. The State counters that

defendant’s sentence is not a de facto life sentence because he is eligible to receive day-for-day

good-conduct credit that may entitle him to release after 37.5 years. Alternatively, the State argues No. 1-17-2390

that defendant’s sentence comports with Miller because the trial court considered his youth and its

attendant characteristics before imposing the sentence.

¶2 On August 6, 2020, this Court issued a published opinion reversing the circuit court’s order,

vacating defendant’s sentence, and remanding for a new sentencing hearing. This case now returns

to this court following the Illinois Supreme Court’s supervisory order directing us to reconsider

our decision in light of People v. Dorsey,

. For the reasons set out below, we affirm

the circuit court’s denial of defendant’s motion for leave to file a successive petition. 1

¶3 I. BACKGROUND

¶4 In July 1992, at the age of 17, defendant participated with his father and another man in

the armed robbery and murder of Aldemar Perez. At trial, the State relied primarily on defendant’s

custodial statements. In the statements, defendant explained that he overheard his father and a man

named Daniel Aponte discussing a plan to steal drugs and money from the victim. Defendant asked

his father to include him in the plan because he needed money. The plan called for defendant, his

father, and a man named Francisco Perez to lure the victim to Francisco’s garage under the guise

of buying his van. Once there, they would rob the victim and take the keys to his apartment.

¶5 On the day in question, defendant, his father, and Francisco drove to the victim’s place of

business, and defendant’s father and Francisco went inside. A short time later, defendant’s father

and Francisco emerged with the victim, and the three men and defendant got into the victim’s van.

Francisco drove the van to his garage, where he told the victim that he had air compressors that he

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.

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wanted to sell him. Defendant’s father and Francisco entered the garage with the victim, while

defendant waited outside.

¶6 As he stood outside, defendant heard the sound of someone being hit and a scream coming

from inside the garage. Defendant then entered the garage and saw the victim lying face down on

the floor, with defendant’s father and Francisco kneeling over him. Defendant’s father had a

hammer in his hand, and the victim had blood on his head and face. Defendant saw the victim

struggling, so he held down the victim’s legs. Francisco then took the hammer from defendant’s

father and used it to hit the victim on the head about 20 times. When the victim continued to

struggle, defendant hit him twice on the legs and back with a two-by-four piece of wood. Defendant

then tied the victim’s hands and feet with electrical cord. With the victim still struggling, defendant

hit him with a tire iron. (The detective who took defendant’s initial oral statement testified that

defendant stated that he hit the victim in the head with the tire iron. In a statement memorialized

in writing by an assistant state’s attorney, defendant stated that he hit the victim in the back and

stomach.) Francisco then wrapped the victim’s mouth with tape.

¶7 Defendant’s father took the victim’s apartment keys, and defendant took the victim’s

wallet. Defendant’s father then told defendant to leave the garage and wait outside. Several minutes

later, defendant’s father and Francisco exited the garage, and the trio drove to Aponte’s house,

where they cleaned up and discarded their blood-soaked clothing. The next day, defendant, his

father, and Aponte went to the victim’s apartment and stole jewelry, cocaine, and $50,000 in cash.

Aponte gave defendant $500 and some of the cocaine. While at the apartment, defendant heard his

father and Aponte discussing how to dispose of the victim’s body. Police later found the victim’s

body in an alley, wrapped in a tarp, with his eyes, nose, and mouth covered with tape and his arms

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and legs tied together behind his back. The medical examiner testified that the victim suffered

injuries to his body consistent with blunt force trauma and that he died of suffocation, with

strangulation as a contributing factor.

¶8 The jury found defendant guilty of first degree murder and armed robbery. The sentencing

range for first degree murder was 20 to 60 years in prison. See 730 ILCS 5/5-8-1(a)(1) (West

1992). However, the trial court could impose an extended-term sentence of up to 100 years in

prison, or a sentence of natural life imprisonment, if it found that the offense “was accompanied

by exceptionally brutal or heinous behavior indicative of wanton cruelty.” 730 ILCS 5/5-5-

3.2(b)(2), 5-8-1(a)(1)(b), 5-8-2(a)(1) (West 1992). The trial court could also impose a natural life

sentence if it found one of several other aggravating factors, including that “the defendant

committed the murder pursuant to a contract, agreement or understanding by which he was to

receive money or anything of value in return for committing the murder” or that “the murder was

committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme

or design to take a human life by unlawful means, and the conduct of the defendant created a

reasonable expectation that the death of a human being would result therefrom.” 730 ILCS 5/5-8-

1(a)(1)(b), 9-1(b)(5), (11) (West 1992). 2

¶9 At the sentencing hearing, the trial court considered a presentence investigation report

(PSI) prepared by the probation department. The PSI noted that defendant was born in Puerto Rico

and moved to Chicago at the age of one. His parents had been married for 25 years, and he had

one older sister. He described his childhood as good and stated that he had a close relationship

2 Because defendant was under the age of 18 at the time of the offense, he was ineligible for a sentence of death. See 720 ILCS 5/9-1(b) (West 1992).

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with his parents and sister. He denied being abused or neglected, but he stated that he was left

blind in one eye after being hit with a tile at the age of four. He admitted to being a member of the

Latin Disciples street gang and stated that he joined the gang at the age of 11. He dropped out of

school after the tenth grade, but prior to dropping out, he had been a member of the swim team

and received average grades. He reported having worked as a grocery store bagger between the

ages of 9 and 11 and in construction with his father from the age of 11 until his arrest in this case.

¶ 10 The PSI also documented defendant’s history of juvenile delinquency adjudications and

adult criminal convictions. In February 1991, he was adjudicated delinquent for committing a

robbery and was sentenced to probation. The probation was terminated “without designation” in

September 1991, when defendant was adjudicated delinquent for committing a burglary. He was

sentenced to a new term of probation for that offense, which was terminated unsatisfactorily in

April 1992. In February 1992, defendant was convicted of burglary and was sentenced to 18

months of probation. In March 1992, he was convicted of committing another burglary and was

sentenced to a concurrent two-year term of probation.

¶ 11 Defendant’s sister and cousin testified at the sentencing hearing. Defendant’s sister

testified that she and defendant had a close relationship. She testified that defendant had never

acted violently toward her and that she had never seen him act violently toward others. Defendant’s

cousin testified that she used to live with defendant’s family and that she too had a good

relationship with defendant. She also testified that defendant had never acted violently toward her

and that she had never seen him act violently toward others.

¶ 12 Defense counsel asked the court to impose a sentence near the lower end of the sentencing

range, suggesting a term between 20 and 30 years in prison. Counsel urged the court to consider

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defendant’s “young age,” arguing that defendant was “impressionable” and had been negatively

influenced by his father. Counsel described defendant’s involvement in the robbery and murder as

“minimal” and stressed that defendant did not plan the crimes but instead “went along” with his

father, who was “supposed to be teaching him right from wrong.” Counsel noted that defendant

had not previously been convicted of any crime of violence and that he had a consistent work

history and some education. Counsel urged the court not to “send[ ] [defendant] away forever,”

arguing that defendant was “salvageable” and could become “a productive member of society.”

¶ 13 The prosecutor asked the court to impose a natural life sentence. She stressed the brutal

and heinous nature of the crime and the victim’s “slow torturous death.” She also argued that the

murder had been committed in a cold, calculated, and premeditated manner and that defendant had

been motivated “solely by greed.” She also noted that defendant was on probation for two prior

burglary convictions at the time of the offense. Finally, she argued that defendant had not been

“led into this crime unwittingly by [his] father” but had instead “volunteered his actions” and “was

in from the planning stage.”

¶ 14 After indicating that it had considered the PSI and the aggravating and mitigating factors

discussed by the parties, the trial court imposed an extended-term sentence of 75 years in prison.

The court determined that defendant was eligible for either a natural life sentence or an extended-

term sentence because his actions during the course of the murder were “brutal and heinous” and

because he committed the murder for personal gain. The court also noted that, while defendant’s

prior adult convictions did not involve crimes of violence, they constituted “serious offenses.” The

court then explained why a 75-year sentence was “the only just sentence in this case”:

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“The facts as I listened to the evidence that was put forth by the State during the

course of trial show a person who has no or who puts no value on human life

whatsoever, a person who is ruthless, cold, calculated[,] and *** savage. To be

involved in and participate in acts such as this [is] unconscionable and beyond

comprehension. It is one of the worse if not worst factual situations I have seen in

my nine years in this building and in my 18 or so years involved in the criminal

justice system. But for his age, [defendant] would be receiving a sentence of natural

life imprisonment.”

¶ 15 On direct appeal, defendant argued that the trial court erred in allowing the State to

introduce evidence that his father had implicated him in an out-of-court statement. We concluded

that any error was harmless given defendant’s own confession and affirmed his conviction. See

People v. Figueroa, 286 Ill. App. 3d. 1117 (1997) (table) (unpublished order under Illinois

Supreme Court Rule 23).

¶ 16 Defendant filed his first postconviction petition in 1997, alleging that his trial counsel was

ineffective for refusing to allow him to testify and failing to inform him of his right to do so. The

circuit court dismissed the petition as frivolous and patently without merit, and we affirmed that

decision on appeal. See People v. Figueroa, 326 Ill. App. 3d. 1151 (2001) (table) (unpublished

order under Illinois Supreme Court Rule 23). In 2010, defendant sought leave to file a second

postconviction petition, alleging that his confession had been coerced and that he was actually

innocent. The circuit court denied defendant leave to file the petition, concluding that his claims

were barred by res judicata. On appeal, we granted a motion to withdraw filed by defendant’s

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appellate counsel and affirmed the circuit court’s decision. See People v. Figueroa, No. 1-10-3135

(2011) (unpublished summary order under Illinois Supreme Court Rule 23).

¶ 17 In 2017, defendant again sought leave to file a successive postconviction petition, arguing

that he was entitled to resentencing in light of “the latest scientific evidence on adolescent [brain]

development.” 3 Quoting Roper v. Simmons,

(2005), which held that the death penalty

is unconstitutional for juvenile offenders, defendant noted the United States Supreme Court’s

recognition that it “is difficult even for expert psychologists to differentiate between the juvenile

offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender

whose crime reflects irreparable corruption.”

. Defendant argued that his sentence should

likewise “reflect [the] latest scientific evidence on adolescent and young adult development,

recognizing that youth who were under the age of 18 at the time of their crime have an especially

strong ability to grow and change.” The circuit court denied defendant leave to file a successive

postconviction petition. The court explained that defendant was not entitled to resentencing

because, with available day-for-day good-conduct credit, he may be eligible for release at the age

of 55. Defendant filed a timely notice of appeal.

¶ 18 II. ANALYSIS

¶ 19 Defendant argues that the circuit court erred in denying him leave to file a successive

postconviction petition challenging his sentence. He contends that his 75-year sentence for a

murder he committed as a juvenile is unconstitutional under Miller because the trial court did not

adequately consider his youth and its attendant characteristics before imposing the sentence. He

3 Although defendant called his pleading a “motion for resentencing,” the circuit court construed it as a motion for leave to file a successive postconviction petition. Neither side argues that the circuit court erred in doing so.

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also alleges that his sentence is unconstitutional under the proportionate penalties clause of the

Illinois Constitution. Ill. Const. 1970, art. I, § 11. We reject both claims.

¶ 20 A. Principles Governing Successive Post-Conviction Petitions

¶ 21 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides

a procedural mechanism through which a defendant may assert a substantial denial of his

constitutional rights under the United States Constitution or the Illinois Constitution or both.

People v. Coleman,

(1998); 725 ILCS 5/122-1 (West 2018). A defendant

may raise a constitutional challenge to both his conviction and his sentence. People v. Davis,

, ¶ 13. The Act, however, contemplates the filing of a single petition. People v.

Pitsonbarger,

(2002); 725 ILCS 5/122-1(f) (West 2018).

¶ 22 Successive petitions are highly disfavored, and the statutory bar will be relaxed only when

fundamental fairness requires it. People v. Holman,

. A successive filing

requires leave of court. People v. Lusby,

; 725 ILCS 5/122-1(f) (West 2018).

For leave to be granted, defendant must make a prima facie showing of both “cause” and

“prejudice” by submitting sufficient pleadings and documentation to permit the circuit court to

make an independent determination on the legal question raised. People v. Bailey,

. The “cause and prejudice” test for successive postconviction pleadings is a higher burden

than the “frivolous or patently without merit” standard for initial pleadings. People v. Edwards,

.

¶ 23 The cause-and-prejudice test is a procedural prerequisite to obtaining further review of a

defendant’s claim. People v. Bland,

. To show cause, a defendant

must identify an objective factor that impeded his ability to raise the claim in his initial petition.

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Davis,

. To show prejudice, a defendant must demonstrate that the claim so

infected the trial that the resulting conviction or sentence violated due process.

As with initial

postconviction filings, all well-pleaded facts in the petition and affidavits must be taken as true.

Edwards,

.

¶ 24 We review the denial of leave to file a successive petition de novo. Bailey,

. Under the de novo standard, a reviewing court performs the same analysis that the trial court

would perform, making the question on review whether the trial court’s decision was correct as a

matter of law. People v. McDonald,

. Leave to file a successive petition

should only be denied where “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.” People v. Smith,

. When the requirements for leave to

file are met, the successive petition is docketed directly for second-stage proceedings. People v.

Sanders,

.

¶ 25 B. Defendant’s Eighth Amendment Claim

¶ 26 Defendant’s eighth amendment argument fails as a matter of law based on Dorsey,

, where he is unable to establish the prejudice prong of the threshold test for bringing a

successive petition. In Dorsey, the court considered whether good-conduct credit is relevant in

determining whether a defendant received a de facto life sentence requiring consideration of the

principles enunciated in Miller,

. Dorsey,

, ¶ 1. Our supreme court

held that “good-conduct credit is relevant and that a sentence imposed pursuant to a statutory

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scheme that affords a juvenile an opportunity to be released from prison after serving 40 years or

less of the term imposed does not constitute a de facto life sentence.”

.

¶ 27 In this case, defendant was sentenced before the enactment of the truth-in-sentencing

statute, which prohibits defendants convicted of first degree murder from receiving sentence credit

and requires them to serve their full sentences. See Pub. Act 90-592 (eff. June 19, 1998) (amending

730 ILCS 5/3-6-3(a)(2)(i)). Under the law in effect at the time of defendant’s sentencing, a

“prisoner shall receive one day of good conduct credit for each day of service in prison other than

where a sentence of ‘natural life’ has been imposed,” and “[e]ach day of good conduct credit shall

reduce by one day the inmate’s period of incarceration set by the court.” 730 ILCS 5/3-6-3(a)(2)

(West 1994).

¶ 28 Here, the parties agree that after considering the application of day-for-day sentencing

credit, defendant’s effective prison term is 37.5 years. Thus, with day-for-day good conduct credit,

defendant will be eligible for release in under 40 years. Under Dorsey, he has not received a

de facto life sentence, and Miller,

, and its progeny do not apply. People v. Brakes,

.

¶ 29 C. Defendant’s Proportionate Penalties Claim

¶ 30 The supreme court’s supervisory order directed us to “consider the effect of the court’s

opinion in People v. Dorsey,

, on the issue of whether defendant’s sentence

constitutes a de facto life sentence and determine if a different result is warranted.” After issuing

a similar order in People v. Meneses,

, the appellate court

reconsidered and again remanded the matter for additional second-stage post-conviction

proceedings.

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¶ 31 Defendant has filed a motion to cite Meneses as additional authority in support of his claim

that his sentence, while not a de facto life sentence, is nevertheless unconstitutional under the

proportionate penalties clause. We ordered the State to file a response to defendant’s motion.

¶ 32 In their response, the State maintains that consideration of Meneses falls outside the scope

of the supreme court’s mandate. Further, the State alleges that Meneses was wrongly decided on

multiple bases.

¶ 33 We have followed the directive of our supreme court and determined that a different result

is warranted. This determination, however, leaves a previously undecided, fully briefed issue

unresolved. We believe it is appropriate to now consider that remaining claim where we did not

reach it in our original opinion.

¶ 34 We begin by noting that a minor who receives a sentence of a term of years may bring an

as-applied proportionate penalties challenge to the constitutionality of their sentence. People v.

Gipson,

. That being said, we reject defendant’s claim that he is entitled

to second-stage proceedings to endeavor further to show that his 37½ year sentence violates the

proportionate penalties clause.

¶ 35 First, we find that Meneses provides no support for defendant’s claim where it is

procedurally distinguishable. In a nutshell, in Meneses, the court only considered defendant’s

proportionate penalties challenge to his sentence after finding that substantive review was not

procedurally barred. Meneses,

. After making this determination,

the court found:

“Under the broader protection provided by our state’s own clause, defendant has

met the low threshold at this stage to allege a colorable claim of disproportionality,

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where the trial court believed that deterrence was a ‘must’ consideration for

children. To be effective, deterrence requires a mind capable of forethought. Thus,

we reverse and remand for second-stage proceedings where defendant will be

required to make a substantial showing that, as applied to him, the sentence he

received was constitutionally disproportionate.”

.

¶ 36 The absence of any procedural bars in Meneses stands in stark contrast to this case where

the State maintained from the outset that defendant failed to satisfy the cause prong for filing a

successive petition that did not previously bring this claim. The State only conceded that defendant

satisfied the cause prong of the cause-and-prejudice for consideration of his Eighth Amendment

claim and not for consideration of this claim. Similarly, our previous finding that defendant

satisfied the cause and prejudice test was directed solely to defendant’s Eighth Amendment claim

and based on our determination that defendant, a minor, received a de facto life sentence without

consideration of the Miller factors.

¶ 37 We find defendant has failed to establish cause to permit review of the merits of this claim

where it was not raised in his direct appeal, his initial petition for postconviction relief, or his first

successive petition for postconviction relief.

¶ 38 Our determination finds direct support in Dorsey, which speaks to more than whether day-

for-day good-conduct credit is considered in determining whether a minor has received a de facto

life sentence. Dorsey also speaks to the question of whether a minor sentenced to a term of years

without consideration of the Miller factors establishes “cause” to allow review of a claim under

the proportionate penalties clause:

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“Moreover, we find that 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 [People v. ]Patterson,

(‘A ruling on a specific flavor of constitutional claim may not justify

a similar ruling brought pursuant to another constitutional provision.’). As

defendant acknowledges, Illinois courts have long recognized the differences

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

sentencing. Thus, 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.’ See People v. LaPointe,

. And, of course, Miller’s unavailability does nothing to explain why

in this successive postconviction proceeding defendant neglected to raise the

proportionate penalties clause claim below, waiting to raise it instead for the first

time before this court.” Dorsey,

.

¶ 39 Dorsey is entirely dispositive of defendant’s claim. Defendant has failed to satisfy

the cause prong of the cause and prejudice test.

¶ 40 In conclusion, Dorsey compels the conclusion that defendant’s challenge to the

constitutionality of his sentence fails under both the Eighth Amendment and the

proportionate penalties provision of the Illinois Constitution.

¶ 41 III. CONCLUSION

¶ 42 For the foregoing reasons, we affirm the circuit court’s order denying defendant leave to

file a successive postconviction petition.

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¶ 43 Affirmed.

¶ 44 PRESIDING JUSTICE GORDON, specially concurring:

¶ 45 I concur in the judgment. However, I must write separately regarding the Meneses opinion

that I authored. Meneses is inapplicable to the case at bar simply because proportionality was raised

in Meneses and not raised here.

¶ 46 In Meneses, the defendant claimed in his successive postconviction petition that his

sentence violated the proportionate penalties clause of our state’s constitution. His petition

repeatedly cited and quoted the clause and argued that his sentence was disproportionate.

Specifically, he argued that, although his sentence was within the applicable statutory range, it was

manifestly disproportionate to the crime that he had committed, in light of the sentencing factors

for juveniles that were not in existence at the time that he was sentenced.

¶ 47 By contrast, in the case at bar, defendant’s successive postconviction petition does not

argue that his sentence was disproportionate. He argues instead that “Illinois law should be

changed to provide a judge the opportunity to examine a defendant’s life after he has had an

opportunity to grow up, mature, and prove himself” while in prison. Defendant argues that he “has

not sat idle during his incarceration.” In essence, defendant is arguing for a parole hearing where

he can present evidence of his accomplishments subsequent to sentencing.

¶ 48 As our supreme court similarly observed in Dorsey, defendant offers “nothing to explain

why” he “wait[ed] to raise” the proportionate penalties clause “for the first time before this court.”

Dorsey,

. It is for this reason that Meneses is not applicable.

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No. 1-17-2390

Cite as: People v. Figueroa,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 92-CR-27511; the Hon. Michael B. McHale, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and David T. Harris, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, David H. Iskowich, and Jessica L. Wasserman, Appellee: Assistant State’s Attorneys, of counsel), for the People.

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