No. 1-20-1151 Third Division June 22, 2022

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Respondent-Appellee, ) ) No. 05 CR 18000 v. ) ) The Honorable BRIAN WALKER, ) Thomas Joseph Hennelly, ) Judge Presiding. Petitioner-Appellant. ) ) ______________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.

OPINION

¶1 Defendant Brian Walker, age 20 at the time of the offense, appeals from the trial court’s

order denying him leave to file a successive pro se postconviction petition. Following a jury

trial, defendant was convicted of the first degree murder of Dehombre Barnett. The jury also

found that defendant personally discharged the firearm that caused the victim’s death.

Following three sentencings, which we describe below, defendant was ultimately sentenced to

28 years, plus an additional 25 years due to a firearm enhancement, for a total sentence of 53

years with the Illinois Department of Corrections (IDOC). ¶2 On appeal, defendant maintains that he has established the cause and prejudice necessary

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

ILCS 5/122-1 et seq. (West 2018)). Defendant maintains that, in light of recent law and

developing science, his 53-year sentence violates the proportionate penalties clause of the

Illinois Constitution, as applied to him, where he was only 20 years old at the time of the

offense, where the offense reflected the hallmark characteristics of youth, including lack of

maturity, impetuousness, and susceptibility to peer pressure, and where recent research on the

young adult brain suggests he was more akin to a juvenile than an adult at the time of the

offense. For the following reasons, we affirm the judgment of the trial court.

¶3 BACKGROUND

¶4 The instant appeal represents the fourth time defendant has appeared before this court in

connection with his conviction and sentence for first degree murder. A detailed recitation of

the facts and trial testimony can therefore be found in our prior decisions, which we hereby

incorporate by reference and from which the following relevant facts are drawn. See People v.

Walker,

(2009); People v. Walker,

; People

v. Walker,

.

¶5 In sum, the State’s evidence at trial established that defendant and Matthew Moss, an

uncharged co-offender, entered the victim’s barbershop shortly before the murder and ran out

after two gunshots were fired. Defendant’s signed statement to an assistant state’s attorney was

admitted into evidence and published to the jury. In it, defendant stated that he went to the

barbershop on July 8, 2005, to purchase marijuana from the victim, which defendant had done

several times in the past. After leaving because people were present inside the shop, defendant

met Moss outside of the shop. Moss then went into the shop and returned a few minutes later,

2 stating to defendant that he was upset because the victim would not give him a haircut for $10.

Moss told defendant that he intended to rob the victim, and defendant told Moss to be careful

because the victim usually carried a gun. Defendant had a gun and assumed that Moss had a

gun, since he intended to rob the victim.

¶6 Defendant entered the shop and walked with the victim to the back room, where defendant

gave the victim $10 in exchange for some marijuana. When defendant walked back into the

main area of the shop, he observed Moss. While it was Moss’s plan to rob the victim, defendant

stated that he was willing to accept any of “money or weed” from the robbery that Moss would

be “willing to give” him. Defendant put his hand on his gun and observed the victim pull out

a small gun and wave it toward Moss and defendant. A “click” came from the victim’s gun,

but it did not fire. Defendant then pulled out his gun and “panicked and fired the gun,” firing

two shots at the victim. Defendant then ran out of the barbershop, to the river, where he threw

his gun before running home and changing his clothes.

¶7 In a stipulation between the parties, a forensic scientist stated that, if called to testify, he

would testify that a gunshot residue test performed on defendant’s hands did not detect gunshot

residue but that “gunshot residue particles can be effectively removed by washing or wiping

the surface” or with “normal hand activity over time.” A forensic pathologist testified that the

victim died as the result of a gunshot that entered above the victim’s left temple, above the

eyebrow.

¶8 The jury found defendant guilty of first degree murder and also found that he personally

discharged the firearm that proximately caused the victim’s death. At the first sentencing, the

trial court sentenced defendant to 35 years for felony murder, plus the mandatory 25-year

enhancement for killing with a firearm, for a total of 60 years.

3 ¶9 On appeal, defendant claimed (1) that the trial court abused its discretion by allowing the

State to proceed solely on a felony murder charge, thereby precluding defendant from seeking

jury instructions on self-defense and second degree murder, (2) that the trial court erred by

refusing to allow the defense to present evidence that a co-offender was not charged, (3) that

the trial court erred by refusing to give defendant’s requested issues instruction on armed

robbery, and (4) that defendant’s sentence was both excessive and improper because the trial

court considered in aggravation matters that were implicit in the offense and facts unsupported

by the evidence.

¶ 10 For reasons already stated in our prior opinion, in 2009 this court affirmed the judgment of

conviction but remanded for resentencing, “with instructions that the trial court may not

consider in aggravation the killing by a firearm, because that is a matter implicit in the firearm

enhancement for the felony murder conviction.” Walker,

.

¶ 11 At the second sentencing, held on May 18, 2010, the trial court sentenced defendant to 28

years for felony murder, plus 25 years for the firearm enhancement, for a total of 53 years.

¶ 12 On appeal from the second sentencing, this court found in 2012 that “there is nothing in

the record to show whether the sentencing court considered defendant’s subjective belief that

he shot the victim in self-defense, which is a statutory mitigating factor in sentencing only in

a felony murder case.” Walker,

, ¶ 1. This court vacated

defendant’s sentence a second time and remanded for a third sentencing in order “for the

sentencing court to consider defendant’s [subjective] belief.” Walker,

, ¶ 1.

¶ 13 At the third sentencing, held on December 18, 2012, the trial court considered defendant’s

subjective belief in the need for self-defense and again sentenced defendant to 28 years for

4 felony murder, plus 25 years for the firearm enhancement, for a total of 53 years. Defendant

filed an appeal from the third sentencing, but this court granted counsel’s Anders motion to

withdraw and affirmed defendant’s sentence. See Anders v. California,

(1967);

In re J.P.,

(pursuant to Anders, appointed counsel may

request leave to withdraw from representation on direct appeal if counsel “conclude[s] that no

viable grounds exist for the appeal”).

¶ 14 On August 13, 2015, defendant filed a pro se petition for relief from judgment, seeking

relief under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)),

which was denied. Defendant did not appeal the denial of his section 2-1401 petition for relief

from judgment.

¶ 15 In defendant’s initial pro se postconviction petition, filed on November 17, 2015,

defendant raised several claims, only one of which he raised on appeal: that his counsel was

ineffective for failing to inform him of the mandatory 25-year firearm enhancement, thereby

leading defendant to reject a 27-year plea offer from the State. Walker,

. This court found defendant failed to show prejudice stemming from this alleged

failure and, therefore, could not establish ineffective assistance of counsel. Walker,

. In reaching this conclusion, we noted that, the firearm enhancement

notwithstanding, defendant was willing to risk a possible 60-year sentence for murder and

reject an offer of only seven years more than the minimum in the hope of being acquitted.

Walker,

.

¶ 16 On March 3, 2020, defendant filed the pro se motion for leave to file a successive

postconviction petition that is the subject of the instant appeal. In the motion and attached

petition, defendant argues that his de facto life sentence of 53 years, imposed for a crime

5 committed when he was 20 years old, violates both the eighth amendment of the United States

Constitution and the proportionate penalties clause of the Illinois Constitution where the trial

court “did not consider the ‘signature qualities of youth’ ” when sentencing defendant.

Defendant also included a discussion of developments in the way the law treats juveniles and

youthful offenders, as well as recent scientific findings in neurobiology and developmental

psychology showing that the human brain does not finish developing until an individual’s mid-

twenties, which is much later than previously thought.

¶ 17 On August 27, 2020, the trial court issued an oral ruling denying defendant’s motion for

leave, finding that the law cited by defendant was “not applicable.” Defendant filed a timely

notice of appeal from that decision on September 22, 2020. We have jurisdiction over this

appeal pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI,

§ 6) and Illinois Supreme Court Rule 651(a) (eff. July 1, 2017), governing appeals from final

judgments in postconviction proceedings.

¶ 18 ANALYSIS

¶ 19 In the case at bar, defendant seeks leave to file a successive postconviction petition

pursuant to the Act. The Act provides a statutory remedy for criminal defendants who claim

that their constitutional rights were violated at trial or at sentencing. People v. House,

(the Act permits inquiry into constitutional issues relating to conviction or

sentence). Although our supreme court has made clear that the Act contemplates only one

postconviction proceeding, “[n]evertheless, [the supreme] court has, in its case law, provided

two bases upon which the bar against successive proceedings will be relaxed.” People v.

Edwards,

; 725 ILCS 5/122-1(f) (West 2018). To file a successive

petition, a defendant must establish either (1) cause for not filing earlier and prejudice or

6 (2) actual innocence. Edwards,

. In the instant case, defendant

alleges only cause and prejudice.

¶ 20 Prior to commencing a successive proceeding, a defendant must obtain leave of court to

file his or her petition. People v. Robinson,

. At this threshold stage, when

a defendant seeks leave to file, he or she is required to demonstrate only “a prima facie showing

of cause and prejudice.” People v. Bailey,

. To show cause, “a defendant

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

petition.” People v. Davis,

. To show prejudice, “a defendant must

demonstrate that the claim so infected the trial that the resulting conviction or sentence violated

due process.” Edwards,

. If leave to file is granted, the petition will be

docketed for second-stage proceedings. People v. Sanders,

; People v.

Jackson,

(“When a defendant is granted leave to file a

successive postconviction petition, the petition is effectively advanced to the second stage of

postconviction proceedings.”). Thus, at this early leave-to-file stage, the petitioner is not

required to make the “substantial showing” that will later be required at a second-stage hearing

after counsel is appointed. Robinson,

. “[L]eave of court to file a

successive postconviction petition should be denied only where it is clear from a review of the

petition and attached documentation that, as a matter of law, the petitioner cannot set forth a

colorable claim ***.” Sanders,

.

¶ 21 To determine whether a defendant has made a prima facie showing of cause and prejudice,

we apply a de novo standard of review. Bailey,

. De novo consideration

means that a reviewing court performs the same analysis that a trial judge would perform.

People v. Van Dyke,

, ¶ 41.

7 ¶ 22 In the case at bar, defendant argues he has established cause because his petition alleged

that a new and growing body of case law, such as Miller v. Alabama,

(2012), and

People v. House,

, rev’d in part,

, was not available

to him when he filed his initial petition on November 17, 2015. We thus begin our analysis of

cause with a summary of the evolving constitutional standards for sentencing of juveniles and

young adults under the eighth amendment to the United States Constitution and proportionate

penalties clause of the Illinois Constitution.

¶ 23 “The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees

individuals the right not to be subjected to excessive sanctions.’ ” Miller,

(quoting Roper v. Simmons,

(2005)). In Miller, the United States Supreme

Court found that a sentence of mandatory life without parole for offenders under 18 years old

violates the eighth amendment and announced several factors that a sentencing court must

consider in mitigation before imposing a natural life sentence on a juvenile. Miller,

. The Illinois Supreme Court has since expanded the applicability of Miller to

de facto life sentences, which it defined as a sentence of over 40 years. See People v. Reyes,

; People v. Buffer,

. Thus, a mandatory

sentence in excess of 40 years, for an offender under 18 years old at the time of the offense,

violates the eighth amendment if the trial court failed to specifically consider “some variant of

the Miller factors.” People v. Holman,

; Buffer,

.

¶ 24 These eighth amendment decisions, however, do not directly apply to the case at bar

because defendant was not a juvenile at the time of his offense; he was 20 years old. In People

v. Harris,

, our supreme court reaffirmed under 18 as the age cutoff for juvenile

8 sentencing protections in the eighth amendment context. Harris,

(in the

eighth amendment context, “for sentencing purposes, the age of 18 marks the present line

between juveniles and adults”); see also People v. Ruiz,

(Miller

does not apply to individuals 18 years or older); People v. Minniefield,

(same); People v. White,

(same).

¶ 25 While Harris foreclosed defendant’s eighth amendment argument, it pointedly left open

the applicability of the Illinois Constitution. Harris,

(explaining that

postconviction proceedings are the most appropriate mechanism for young adult offenders to

raise proportionate penalties claim). Indeed, where, as here, a young adult raises an as-applied

challenge, Illinois courts have routinely considered their sentencing claims under the

proportionate penalties clause of our Illinois Constitution rather than the eighth amendment.

E.g., Minniefield,

(considering a 19-year-old defendant’s

as-applied sentencing claim under the proportionate penalties clause rather than the eighth

amendment); People v. Franklin,

(18-year-old defendant);

People v. Johnson,

(19-year-old defendant); People v.

Savage,

(22-year-old defendant); People v. Ross,

(19-year-old defendant).

¶ 26 The proportionate penalties clause 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. “The purpose of the proportionate penalties

clause is to add a limitation on penalties beyond those provided by the eighth amendment and

to add the objective of restoring the offender to useful citizenship.” Minniefield,

; see Franklin,

; Savage, 2020 IL App (1st)

9 173135, ¶ 65. Thus, the proportionate penalties clause goes further than the eighth amendment

in offering protection against oppressive penalties. Minniefield,

; People v. Clemons,

; People v. Fernandez,

(“the Illinois Constitution places greater restrictions on criminal sentencing than

the eighth amendment’s prohibition”). “Unlike other constitutional provisions affecting

criminal defendants, these two provisions—the eighth amendment and the proportionate

penalties clause—are not in lockstep.” Franklin,

; see Savage,

.

¶ 27 By way of the proportionate penalties clause, our supreme court has held that young adults

may rely on the evolving neuroscience and societal standards underlying the rule in Miller to

support an as-applied challenge to a life sentence. See People v. Thompson,

(19-year-old defendant “is not necessarily foreclosed from renewing his as-applied

challenge in the circuit court” pursuant to the Act); Harris,

.

Recently, in House,

, our supreme court once again found that a

young adult may bring an as-applied challenge under the proportionate penalties clause based

on a developed evidentiary record as to how the “science concerning juvenile maturity and

brain development applies equally to young adults, or to petitioner specifically.”

¶ 28 However, while our supreme court has suggested that emerging adults may be able to

leverage Miller to challenge their sentences under the proportionate penalties clause, that

suggestion is not tantamount to a substantial change in the law that would provide the

defendant cause to file a successive petition under the Act. See People v. Caballero,

. Indeed, during the time since defendant filed his successive

postconviction petition, our supreme court has held that the unavailability of Miller or the

10 Miller line of cases under Illinois law by itself does not provide cause for a successive petition

raising youth-based sentencing claims under the proportionate penalties clause. People v.

Dorsey,

.

¶ 29 Specifically, in Dorsey,

, our supreme court held 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,” because “Illinois

courts have long recognized the differences between persons of mature age and those who are

minors for purposes of sentencing.” If Miller’s announcement of a new substantive rule does

not provide a minor cause to bring a successive petition, it follows that our supreme court’s

recent acceptance that Miller may apply to young adults in certain circumstances does not

provide cause for a young adult’s successive petition either. Instead, the unavailability of

Miller and the line of cases extending the rule of Miller under Illinois law “at best deprived

defendant of ‘some helpful support’ for his state constitutional law claim, which is insufficient

to establish ‘cause.’ [Citation.]” Dorsey,

; see also People v. Guerrero,

(“the 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”).

¶ 30 Moreover, this court has routinely applied Dorsey to reject arguments identical to those

raised by defendant in the case at bar. See, e.g., People v. Winters,

-

U, ¶ 51 (Dorsey foreclosed a finding of cause even where defendant was young adult rather

than a juvenile); Caballero,

(same); People v. Harris,

(finding lack of cause in light of Dorsey, despite parties’

agreement that defendant had established cause). Put simply, because the cases relied upon by

11 defendant did not provide a new basis to challenge defendant’s sentence, defendant has failed

to establish cause for failing to raise his proportionate penalties claim on direct appeal or in his

initial 2015 postconviction petition.

¶ 31 Because defendant has not made a prima facie showing of cause, we do not reach the

question of whether he has made a prima facie showing of prejudice. See People v. Brown,

(2007) (where defendant has failed to establish cause, it is not necessary

for the court to consider prejudice). The trial court properly denied defendant leave to file his

successive postconviction petition.

¶ 32 CONCLUSION

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

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Decision Under Review: Appeal from the Circuit Court of Cook County, No. 05-CR- 18000; the Hon. Thomas Joseph Hennelly, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Jennifer L. Bontrager, for of State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Paul E. Wojcicki, and James J. Stumpf, Assistant Appellee: State’s Attorneys, of counsel), for the People.

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