No. 1-21-0400 Third Division July 27, 2022 ____________________________________________________________________________

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. 12 CR 18726 (02) ) DANIEL GUERRERO, ) ) The Honorable Defendant-Appellant. ) William Raines, ) Judge Presiding.

____________________________________________________________________________

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

OPINION

¶1 In the instant appeal, defendant Daniel Guerrero challenges the trial court’s decision

denying his postconviction petition at the first stage. This is the second time this defendant has

appealed to this court. In his prior appeal, which was a direct appeal, defendant argued (1) that

certain remarks made by the prosecutor during the State’s rebuttal closing argument constituted

prosecutorial misconduct and (2) that his sentence is excessive when compared to the lesser No. 1-21-0400

sentence of a codefendant. We affirmed his conviction and sentence. See People v. Guerrero,

.

¶2 In this appeal, defendant argues that his postconviction petition established the gist of his

claim that the imposition of a 45-year sentence for his crime of murder in the first degree

violates the Illinois Constitution’s proportionate penalties clause (Ill. Const. 1970, art. 1, § 11)

as applied to him. The trial court dismissed defendant’s postconviction petition. For the

following reasons, we affirm the trial court’s decision.

¶3 BACKGROUND

¶4 The State’s evidence at trial established that, on May 29, 2010, at midnight, a group of

men, who belonged to the same gang, approached two men on a street because one of the two

men was wearing a red shirt, which was the color of a rival gang. One of the two men, Mario

Gallegos, was able to escape, and he testified at trial as an eyewitness. The other man, Alan

Oliva, who was wearing the red shirt, was beaten and stabbed to death. Gallegos identified

defendant as the first person to strike the victim. Gallegos testified that defendant swung a

baseball bat at the victim, thereby knocking the victim to the ground, whereupon the other men

beat and stabbed the victim until he stopped moving. The victim later died from his wounds.

Defendant was 22 years and two months old at the time of the killing.

¶5 On April 6, 2017, defendant was convicted of gunrunning. See 720 ILCS 5/24-3A(a) (West

2014) (“A person commits gunrunning when he or she transfers 3 or more firearms in violation

of any of the paragraphs of Section 23-4 of this Code.”). The underlying events giving rise to

this conviction occurred in April 2012, almost two years after the killing of Oliva. Defendant

2 No. 1-21-0400

was sentenced to seven years and seven months with the Illinois Department of Corrections

(IDOC) for this conviction.

¶6 Defendant’s murder trial was held about two months after defendant’s conviction for

gunrunning. On June 8, 2017, a jury found defendant guilty of first degree murder. On July 11,

2017, the trial court, after considering the aggravating and mitigating factors, sentenced

defendant to 45 years with the IDOC. The trial court considered the defendant’s criminal

history, his social history, his education, his background, his family history, and his physical

health. More specifically, it considered defendant’s participation in gang involvement in

aggravation, as well as defendant’s role as “leader of the pack”, as he was armed with the bat

that struck the first blow, allowing the others to continue the attack. The court also considered

in aggravation the fact that defendant continued being involved in gang activity even after the

murder, as evidenced by the gunrunning conviction just a couple months prior to the murder

trial. In sum, “the defendant’s primary roll [sic] in this incident, this senseless killing of

certainly an innocent individual Mr. Oliva, who had a bright future in front of him require[d]

[in] the Court’s discretion a sentence greater than the minimum, and greater commensurate

with the other individuals based on their level of participation.”

¶7 On August 10, 2017, defendant filed a notice of appeal. 1 On June 4, 2020, this court issued

its decision on defendant’s direct appeal. We held that the State’s remarks during the trial did

not constitute error and certainly did not rise to the level of clear and obvious error as required

1 Our earlier opinion in this matter (Guerrero,

) incorrectly stated that the notice of appeal was filed on July 11, 2017. 3 No. 1-21-0400

for reversal under the plain error doctrine. We also held that defendant’s sentence was not

excessive, as defendant was not similarly situated as his codefendants because he was the

leader of the pack and, after the murder, was convicted of another crime.

¶8 On December 30, 2020, defendant filed his pro se postconviction petition alleging that (1)

his 45-year sentence was unconstitutional under the eighth amendment (U.S. Const., amend.

VIII), (2) his trial counsel was ineffective in failing to object to the State’s use of certain

testimony, and (3) the trial court violated Illinois Supreme Court Rule 431(b) (eff. July 1,

2012). 2 On March 2, 2021, the trial court issued a written order summarily dismissing the

petition as frivolous and without merit. Subsequently, defendant filed a notice of appeal that

substantially complied with Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017), which

sets forth notice requirements for incarcerated individuals filing documents with a court. 3

2 Rule 431(b) reads as follows: “The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant’s decision not to testify when the defendant objects. The court’s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012). 3 Rule 12(b)(6) reads as follows: “Manner of proof. Service is proved: *** *** in case of service by mail by a self-represented litigant residing in a correctional facility, by certification under section 1-109 of the Code of Civil Procedure of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.” Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017). In this case, defendant did not note the time of the deposit. However, defendant’s failure to adhere to this formality is not fatal to the sufficiency of his notice. See, e.g., People v. Smith,

(2008); People v. Humphrey,

. 4 No. 1-21-0400

¶9 ANALYSIS

¶ 10 On appeal, defendant argues that his 45-year sentence for his murder conviction violates

the Illinois Constitution’s proportionate penalties clause as applied to him.

¶ 11 I. Standard of Review

¶ 12 Defendant’s petition was dismissed at the first stage of postconviction proceedings. “ ‘At

the first stage of postconviction [proceedings] there are no hearings, no arguments, and no

introduction of evidence.’ ” People v. Savage,

(quoting People

v. Johnson,

). “ ‘Instead, there is only a pleading, the postconviction

petition, that the circuit court must independently consider to determine whether it is frivolous

or patently without merit.’ ” Savage,

(quoting Johnson,

).

¶ 13 “Where the issue on review is limited to the sufficiency of the allegations in a

postconviction petition, there is little justification for affording deference to the circuit court’s

decision.” People v. Robinson,

. “Given that no factual findings or

credibility determinations are required at the pleading stage of postconviction proceedings, a

reviewing court is as capable as the circuit court of determining whether a petition and

supporting documents contain adequate allegations.” Robinson,

. Thus,

a reviewing court’s standard of review is de novo. Savage,

. De

novo consideration means that we perform the same analysis that a trial judge would perform.

People v. Carrasquillo,

.

¶ 14 II. Postconviction Hearing Act 5 No. 1-21-0400

¶ 15 Defendant seeks relief under the Postconviction Hearing Act (Act) (725 ILCS 5/122-1

et seq. (West 2014)).

¶ 16 The Act provides a statutory remedy for criminal defendants who claim their constitutional

rights were violated at trial. People v. Edwards,

. It is not a substitute for

an appeal but, rather, a collateral proceeding that attacks a final judgment. Edwards,

.

¶ 17 The Act provides for three stages of review by the trial court. People v. Domagala,

. At the first stage, the trial court may summarily dismiss a petition only if it is

frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2014); Domagala,

.

¶ 18 At the second stage, counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4

(West 2014); Domagala,

. After counsel determines whether to amend

the petition, the State may file either a motion to dismiss or an answer to the petition. 725 ILCS

5/122-5 (West 2014); Domagala,

. At the second stage, the trial court

must determine “whether the petition and any accompanying documentation make a substantial

showing of a constitutional violation.” People v. Edwards,

(2001).

¶ 19 If the defendant makes a “substantial showing” at the second stage, then the petition

advances to a third-stage evidentiary hearing. Domagala,

. At a third-

stage evidentiary hearing, the trial court acts as fact finder, determining witness credibility and

the weight to be given particular testimony and evidence and resolving any evidentiary

conflicts. Domagala,

.

6 No. 1-21-0400

¶ 20 In the case at bar, defendant appeals the trial court’s order summarily dismissing his

postconviction petition as frivolous and without merit at the first stage. He argues that his

postconviction petition established the gist of a claim that his 45-year sentence, of which he

must serve 100% under the truth-in-sentencing provisions of the Unified Code of Corrections

(730 ILCS 5/3-6-3 (West 2014)), violates the Illinois constitution’s proportionate penalties

clause “in light of recent changes in the research and jurisprudence surrounding emerging

adults.” 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. 1, § 11.

¶ 21 As noted above, a postconviction petition may be dismissed at the first stage only if it is

frivolous or patently meritless. Domagala,

. This is admittedly a low

threshold. People v. Allen,

. However, “[t]his low threshold does not

excuse the pro se petitioner from providing factual support for his claims; he must supply

sufficient factual basis to show the allegations in the petition are ‘capable of objective or

independent corroboration.’ ” Allen,

(quoting People v. Collins,

(2002)). Moreover, a pro se petition seeking postconviction relief may be dismissed

“if the petition has no arguable basis either in law or in fact. A petition which lacks an arguable

basis either in law or in fact is one which is based on an indisputably meritless legal theory or

a fanciful factual allegation.” People v. Hodges,

(2009).

¶ 22 As mentioned above, defendant was just over 22 years old when he murdered Oliva. Our

supreme court’s decision in People v. Harris,

, foreclosed the possibility

7 No. 1-21-0400

of offenders aged 18 and over to rely on the eighth amendment’s prohibition against cruel and

unusual punishment in challenging the length of their prison sentences. However, the Harris

court reiterated its earlier decision in People v. Thompson,

, which held that a

defendant is not necessarily foreclosed from raising a constitutional claim in another

proceeding, such as this Act. Harris,

(citing Thompson,

). Since the Harris decision, Illinois courts have considered the sentencing mitigation

claims of incarcerated offenders aged 18 and older under the proportionate penalties clause of

the Illinois Constitution rather than the eighth amendment. E.g., People v. 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); Savage,

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

(19-year-old

defendant).

¶ 23 At this first stage, we must consider whether defendant’s claim has an arguable basis in

law or fact. Defendant has cited only one legal precedent in which this court allowed a

defendant aged 21 or over to advance from the first to the second stage of proceedings under

the Act. 4 We therefore look to that decision, and all other relevant decisions, for guidance in

the case at bar.

4 Moreover, defendant fails to explain how his case is different from the litany of decisions in which we have not allowed claims by petitioners aged 21 and over to go forward. See, e.g., People v.

8 No. 1-21-0400

¶ 24 In Savage, we considered the postconviction appeal of a defendant (Savage) who was 22

years old at the time he committed the murder and was sentenced to 85 years with IDOC.

Savage,

. In that case, the State’s evidence established that

Savage had shot two men, killing one of them, in a bungled attempt to rob one of the men of

drugs. Savage,

. In his petition, Savage argued that his life-long

drug addiction from the age of nine made him the functional equivalent of a younger man.

Savage,

. This allegation was corroborated by a hospital

discharge report from when Savage was 15 years old, which indicated that Savage had begun

using drugs at the age of nine. Savage,

. Savage further alleged

that he was using drugs every day at the time of the offense, and that he was attempting to rob

a drug house at the time of the murder. Savage,

. He alleged

that his long-term addiction from a young age left him susceptible to peer pressure and more

volatile in emotionally charged settings. Savage,

. Savage also

averred to having “ ‘conquered [his] drug habit,’ ” as corroborated by never having tested

positive for drugs while in prison, and was therefore a candidate for rehabilitation. Savage,

. Finally, nothing in the facts of that case indicated that Savage

committed crimes after the murder, and he contended that his drug use stunted his brain

development and rendered his maturity level similar to that of a juvenile. On these facts and

Williams,

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

(21-year-old defendant); People v. Suggs,

(23-year-old defendant); People v. Rivera,

(23-year-old defendant); Humphrey,

(21-year-old defendant); and People v. Robinson,

(24-year-old defendant). 9 No. 1-21-0400

allegations, we allowed Savage to proceed to the second stage of proceedings under the Act.

No later opinion has allowed a person aged 21 or over to proceed to the second stage of

proceedings under the Act.

¶ 25 In this case, there is nothing in the record to indicate that defendant’s upbringing would

have somehow increased his propensity for, or even explained his participation in, a gang

lifestyle. There is nothing to show that his cognitive abilities were somehow affected or

lessened by the circumstances of his upbringing. Rather, he was described as a smart

individual, which would suggest that defendant knew what he was doing when he murdered

Oliva.

¶ 26 Apart from citing literature on the cognitive development of emerging adults in their early

twenties, defendant here does not include any additional facts in support of his contention that

his sentence violates his rights under our constitution’s proportionate penalties clause. In other

words, he does not allege that his cognitive development was that of a juvenile at the time of

his crimes.

¶ 27 The case at bar is readily distinguishable from Savage. There is no indication that

defendant’s upbringing caused or influenced him to kill Oliva. He was raised by both parents

and had a loving sister who testified on his behalf. There is no indication that he was addicted

to any substances that may have influenced his behavior, whereas Savage had been allegedly

using hard drugs on a regular basis—including cocaine, crack cocaine, and PCP—since the

age of nine, which, according to Savage, altered his behavior significantly. Moreover, there is

no indication that defendant was in any way cognitively impaired at the time that he killed

10 No. 1-21-0400

Oliva. Savage, on the other hand, had well-documented allegations indicating serious mental

health problems, as evidenced by a four-month stay in a psychiatric hospital during his teenage

years. There is also no palpable indication that defendant felt any sense of remorse or

willingness to rehabilitate, as he committed at least one serious offense after the murder of

Oliva—gunrunning, a gang-related activity. In fact, in allocution, he indicated he was not

guilty of the offense, contrary to eyewitness testimony. Savage, on the other hand, alleged to

have conquered his drug habit while serving his sentence, as evidenced by his repeated

negative drug tests.

¶ 28 Based on the foregoing, there can be no dispute that defendant was a mature individual,

perhaps even older than his chronological years, at the time he murdered Oliva. He knew

exactly what he was doing, and he knew the potential consequences of his actions—not only

on his own life but on the lives of the surviving family members of Oliva. There is nothing in

the record to suggest that defendant’s cognitive age was below that of his chronological age.

He continued to be involved in gang activity after he killed Oliva. Defendant’s petition is

wholly devoid of anything—fact or allegation—that could support his constitutional claim that

the sentence which was imposed on him was disproportionate.

¶ 29 The Savage decision was published on September 30, 2020, at a time when the law on this

subject was still in the infant stage, and that decision appears to be the only reported decision

of this court extending Miller-based sentencing protections (see Miller v. Alabama,

(2012)) to a defendant over 21 years of age. Numerous cases decided after Savage have

either distinguished it or rejected its reasoning entirely. See, e.g., People v. Montanez, 2022 IL

11 No. 1-21-0400

App (1st) 191930, ¶¶ 57-62; People v. Gholston,

; People v.

Kruger,

, ¶¶ 30-31; People v. Williams,

. This court, in cases decided after Savage, has drawn a line for “young adult

offenders” ending at 21 years of age. See, e.g., People v. Green,

; People v. Humphrey,

(“[I]ndividuals who are 21 years

or older when they commit an offense are adults for purposes of a Miller claim.”); People v.

Suggs,

(“[S]ociety has drawn lines at ages 18 and 21 for various

purposes. Defendant cannot point to any line, societal, legal, or penological, that is older than

21 years” other than Savage.).

¶ 30 We recognize that research has found that brain development can continue into a person’s

mid-twenties, and we really do not know what effect, if any, that has on an offender’s reasoning

process. However, both our supreme court and the United States Supreme Court recognize that

a court must determine whether an offender is a juvenile offender or an adult offender for

sentencing purposes. The United States Supreme Court chose to draw the line, under the eighth

amendment, at 18 years old because that “is the point where society draws the line for many

purposes between childhood and adulthood.” Roper v. Simmons,

(2005).

¶ 31 Our supreme court recognized the line drawn by the United States Supreme Court but has

suggested that defendants over the age of 18 may have cognizable Miller-based sentencing

claims under the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970,

art. I, § 11). Harris,

. Recently, in People v. House,

,

the supreme court remanded for further second-stage proceedings under the Act where the 19-

12 No. 1-21-0400

year-old defendant raised a Miller-based challenge to his sentence. The House court did not

determine that the defendant’s sentence was unconstitutional but found that the record was not

adequately developed on the defendant’s specific facts and circumstances to make such a

determination. House,

. Our supreme court has not yet drawn a

definite age limit for Miller-based claims under the proportionate penalties clause. Nor has it

found that offenders over the age of 18 are entitled to Miller-based sentencing protections. This

does not imply, however, that there is no upper age limit for a defendant to pursue Miller-based

sentencing protections. Notably, the defendant in Harris argued that eighth amendment Miller

protections for juveniles should be applied to all “young adults under the age of 21.” Harris,

.

¶ 32 Although some cases have extended juvenile sentencing guidelines to offenders under 21

years old, if those same extensions are to be made to offenders over 21 years old, “it should be

made by our legislature or our highest court.” People v. Rivera, 2020 IL (1st) 171430, ¶ 27. As

noted, our supreme court has not yet delineated a bright line age limitation for Miller-based

protections, but the court has stated that the legislature is “better equipped to gauge the

seriousness of various offenses and to fashion sentences accordingly.” People v. Buffer,

. The legislature, in turn, has recently enacted several statutes indicating that it

has determined that 21 years of age is the line between adults and juveniles for sentencing

purposes.

¶ 33 For instance, section 5-4.5-115(b) of the Unified Code of Corrections provides for parole

review, “after serving 20 years or more” of their sentence, for defendants who were under the

13 No. 1-21-0400

age of 21 when they committed first degree murder. See Pub. Act 100-1182 (eff. June 1, 2019)

(adding 730 ILCS 5/5-4.5-110); Pub. Act 101-288 (eff. Jan. 1, 2020) (renumbering 730 ILCS

5/5-4.5-110 to 730 ILCS 5/5-4.5-115). Furthermore “[i]n considering the factors affecting the

release determination ***, the Prisoner Review Board panel shall consider the diminished

culpability of youthful offenders, the hallmark features of youth, and any subsequent growth

and maturity of the youthful offender during incarceration.” Pub. Act 101-288 (eff. Jan. 1,

2020) (renumbering 730 ILCS 5/5-4.5-110(j) to 730 ILCS 5/5-4.5-115(j)). These

considerations mirror those identified by the Supreme Court in Miller. The Illinois legislature

has also prohibited the sale of nicotine and tobacco products to persons under 21 (720 ILCS

675/1 (West 2020)), prohibited the sale of alcohol products to persons under 21 (235 ILCS 5/6-

16 (West 2020)), and made possession of a firearm by those under the age of 21 an aggravating

factor for aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West

2020)).

¶ 34 Finally, our supreme court has held that a sentence of 40 or more years imposed on a

juvenile amounts to a de facto life sentence. Buffer,

. Before sentencing

a juvenile to life imprisonment without parole, the trial court must determine that the

“defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable

corruption beyond the possibility of rehabilitation.” People v. Holman,

.

In this case, defendant was not a juvenile at the time he murdered Oliva—he was 22 years and

two months old. As discussed above, there is nothing in the record to support the notion that

defendant’s actual mental age was younger than his chronological age. However, even if we

14 No. 1-21-0400

were to treat defendant as a juvenile, his claim remains meritless. Defendant has submitted

nothing to demonstrate that he is not permanently incorrigible. Defendant has not even alleged

any facts that may indicate corrigibility. There is no indication that defendant has shown a

willingness or ability to rehabilitate. To the contrary, the record shows that defendant has

committed at least one serious offense after he murdered Oliva.

¶ 35 CONCLUSION

¶ 36 For the foregoing reasons, the trial court’s summary dismissal of defendant’s

postconviction petition at the first stage is affirmed.

¶ 37 Affirmed.

15 No. 1-21-0400

People v. Guerrero,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 12-CR- 18726(02); the Hon. William Raines, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, Chan Woo Yoon, and Hannah for Lazar Pieterse, of State Appellate Defender’s Office, of Chicago, Appellant: for appellant.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Tasha-Marie Kelly, and Hareena Meghani-Wakely, Appellee: Assistant State’s Attorneys, of counsel), for the People.

16