No. 1-22-0122 Opinion filed December 15, 2022 Fourth Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 3147 ) MARCELLUS FRENCH, ) Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Rochford and Martin concurred in the judgment and opinion.

OPINION

¶1 Defendant Marcellus French appeals from the circuit court’s order denying him leave to

file a successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-

1 et seq. (West 2018)). On appeal, defendant argues that he adequately alleged both cause and

prejudice for his failure to raise his proportionate penalties claim in his initial postconviction

petition. Defendant was 20 years old in August 2010 when he committed first degree murder and

aggravated battery with a firearm. Defendant was sentenced in 2014, filed his initial postconviction

petition in 2019, and filed the motion for leave to file the successive postconviction petition at No. 1-22-0122

issue in this case in 2021. Defendant’s proportionate penalties claim stems from caselaw

interpreting the eighth amendment to the United States Constitution as applied to juveniles and

that caselaw’s extension to young adult offenders via the proportionate penalties clause of the

Illinois Constitution. However, our supreme court in People v. Dorsey,

, foreclosed

defendant’s claim because it could have been raised in defendant’s initial petition. Therefore, we

affirm the judgment of the circuit court. 1

¶2 I. BACKGROUND

¶3 After a jury trial, defendant was found guilty of the first degree murder of Roger Kizer and

aggravated battery with a firearm of Estavion Thompson. Codefendant Bodey Cook was also

found guilty of first degree murder and aggravated battery with a firearm. The jury found that

defendant personally discharged a firearm that caused death. Defendant was sentenced to

consecutive terms of 55 years’ imprisonment for first degree murder and 15 years’ imprisonment

for aggravated battery with a firearm.

¶4 We set forth the facts in defendant’s direct appeal (People v. French,

), and we recite them here to the extent necessary to our disposition. The State’s evidence

showed that at about 11 p.m. on August 19, 2010, the victims, Kizer and Thompson, were outside

near 7450 South Kenwood Avenue in Chicago. Kizer’s family lived on that block. Kizer and

Thompson were either sitting on the back of a friend’s parked car or standing by the car in the

street. Several other people were also outside.

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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¶5 A vehicle passed the group multiple times. Bodey Cook was driving the vehicle. On the

third pass, defendant leaned out of the passenger-side window and fired multiple shots at the group.

Thompson suffered gunshot wounds to each of his legs, his chest, and his stomach. Kizer died at

the scene from a gunshot wound to his chest. Defendant was 20 years old at the time of the

shooting. Defendant was sentenced on May 29, 2014. Defendant, acting pro se, did not file a

motion to reconsider his sentence.

¶6 On direct appeal, defendant argued that (1) the trial court abused its discretion by admitting

hearsay and allowing the State to refer to it as substantive evidence during closing argument, which

constituted plain error because the evidence was closely balanced, (2) trial counsel rendered

ineffective assistance by failing to object to certain statements by witnesses on the basis of lack of

foundation, (3) the trial court’s preliminary inquiry into defendant’s pro se posttrial claims of

ineffective assistance of counsel was an adversarial proceeding and violated due process, and

(4) the trial court erred when it failed to appoint new counsel and hold a hearing on defendant’s

claims of ineffective trial counsel. We affirmed. Id. ¶ 89.

¶7 On December 20, 2019, defendant filed his initial postconviction petition. Defendant’s

petition alleged that, inter alia, (1) appellate counsel was ineffective for failing to establish trial

counsel’s ineffectiveness where trial counsel failed to thoroughly investigate defendant’s cellular

phone records, which provided evidence concerning the location of defendant’s phone during the

crime, (2) trial counsel was ineffective for failing to seek the testimony of an eyewitness expert

and an expert witness on cellular phone records, (3) defendant was denied a fair and impartial

direct appeal proceeding where the circuit court did not include defendant’s exhibits in the

appellate record, (4) appellate counsel failed to present the ineffective assistance of trial counsel

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claim regarding the alibi witnesses with supporting facts, and (5) trial counsel was ineffective for

failing to show that police authorities offered leniency to witnesses.

¶8 On February 5, 2020, the trial court dismissed defendant’s postconviction petition, finding

that the issues raised were frivolous and patently without merit. We affirmed the dismissal of

defendant’s initial postconviction petition in an order pursuant to Illinois Supreme Court Rule

23(b) (eff. Jan. 1, 2021) on April 28, 2022. People v. French,

.

¶9 On October 13, 2021, defendant filed the motion for leave to file a successive

postconviction petition at issue in this case. Defendant alleged that his 70-year sentence was a

de facto life sentence imposed on him as a 20-year-old in violation of the proportionate penalties

clause of the Illinois Constitution. As to cause, defendant stated that the sentencing claim was “not

reasonably available to him before.” Defendant referenced a report from Dr. James Garbarino

detailing defendant’s “developmental pathway from childhood to adulthood.” Defendant received

the report on June 11, 2021, which defendant alleged was the first point he could have reasonably

brought the proportionate penalties claim. For prejudice, defendant alleged that his de facto life

sentence was unconstitutional as applied to him under the proportionate penalties clause.

¶ 10 The trial court denied defendant’s motion on December 16, 2021. The trial court concluded

that defendant had waived his proportionate penalties claim by failing to raise it in either his direct

appeal or initial postconviction petition. On the merits, the trial court stated that defendant’s 55-

year sentence for first degree murder did not “shock the moral sense of the community” because

defendant was not a juvenile when he “directly participated” in the murder.

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¶ 11 Defendant’s notice of appeal was file-stamped January 19, 2022. The envelope

accompanying the notice of appeal shows a date of January 12, 2022. This court granted

defendant’s motion for leave to file a late notice of appeal on June 6, 2022.

¶ 12 II. ANALYSIS

¶ 13 Defendant’s sole argument is that he adequately alleged cause and prejudice such that the

trial court erred in denying his motion for leave to file a successive postconviction petition.

Defendant argues that he established cause “because his claim is based on recent, substantive

developments in the law as well as newly-obtained factual support for the claim which could not

have been brought in his first post-conviction petition.” Defendant argues that he made a

prima facie showing of prejudice by pleading three facts: “1) he is serving a natural or de facto life

sentence[;] 2) scientific evidence supported his claim that his brain acted like that of a juvenile’s

brain at the time of the offense; and 3) the sentencing court did not adequately consider his youthful

characteristics as required by Miller and its progeny.”

¶ 14 The State responds that defendant failed to establish cause because the caselaw defendant

relies on was available when he filed his initial petition in 2019. The State further points to the

Illinois Supreme Court’s decision in Dorsey,

, which the State argues forecloses

defendant’s cause argument. The State also notes that defendant had years to obtain a similar expert

report for inclusion in his first petition. As to prejudice, the State primarily relies on the seriousness

of the offense, the trial court’s findings about defendant’s rehabilitative prospects, the fact that all

of the mitigating evidence regarding defendant’s youth and upbringing was before the trial court,

and that a portion of Dr. Garbarino’s report is based on facts contradicted by the record.

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¶ 15 The Act provides a three-stage mechanism by which a criminal defendant may assert that

his conviction resulted from the substantial denial of a constitutional right. People v. Myles,

; People v. Delton,

(2008). “[T]he Act contemplates

the filing of only one post-conviction petition.” People v. Pitsonbarger,

(2002). “Only when fundamental fairness so requires will the strict application of this statutory bar

be relaxed.”

.

¶ 16 “[T]he cause-and-prejudice test is the analytical tool that is to be used to determine whether

fundamental fairness requires that an exception be made to section 122-3 so that a claim raised in

a successive petition may be considered on its merits.”

. The cause-and-prejudice test has

been codified in the Act. Section 122-1(f) of the Act provides: “Leave of court may be granted

only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial

post-conviction proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West

2018). Thus, section 122-1(f) is an exception to the statutory waiver rule, “permitting a successive

petition, but only if the defendant first obtains permission from the court and demonstrates to the

court cause and prejudice for not having raised the alleged errors in his or her initial postconviction

petition.” People v. Bailey,

.

¶ 17 “[A] prisoner 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). “[A] prisoner shows prejudice 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.”

“[T]he cause-and-prejudice test for a successive petition

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involves a higher standard than the first-stage frivolous or patently without merit standard.” People

v. Smith,

.

¶ 18 “[L]eave of court to file a successive postconviction petition should be denied when 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.”

“The denial of a

defendant’s motion for leave to file a successive postconviction petition is reviewed de novo.”

Bailey,

.

¶ 19 Defendant’s claim has its roots in the eighth amendment to the United States Constitution,

which prohibits the infliction of “cruel and unusual punishments.” U.S. Const., amend. VIII. In a

line of cases the United States Supreme Court has applied the eighth amendment to juvenile

offenders who have committed serious offenses. In Roper v. Simmons, the Court held that the

eighth amendment prohibited the “imposition of the death penalty on offenders who were under

the age of 18 when their crimes were committed.” Roper v. Simmons,

(2005).

In Graham v. Florida, the Court held that the “Constitution prohibits the imposition of a life

without parole sentence on a juvenile offender who did not commit homicide.” Graham v. Florida,

(2010).

¶ 20 In Miller v. Alabama, the Court held that “the Eighth Amendment forbids a sentencing

scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller v.

Alabama,

(2012). The Court then determined that the Miller holding applied

retroactively to cases on collateral review. Montgomery v. Louisiana,

(2016).

Most recently, the Court clarified that Miller only required a “discretionary sentencing procedure”

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and not any formal factual finding. Jones v. Mississippi,

, ___,

(2021).

¶ 21 The Illinois Supreme Court has also weighed in on the import of these decisions. Our

supreme court in People v. Reyes held that Miller applied to de facto life sentences. People v.

Reyes,

(per curiam). In People v. Buffer, our supreme court defined

a de facto life sentence for a juvenile as a sentence of more than 40 years’ imprisonment. People

v. Buffer,

. Our supreme court has also held that Miller applies to

discretionary as well as mandatory sentences (People v. Holman,

),

although the court has subsequently called that holding into question (see Dorsey,

). With the eighth amendment backdrop established, we turn to defendant’s proportionate

penalties claim.

¶ 22 The proportionate penalties clause provides: “All 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. A penalty violates the proportionate penalties clause

when it is “cruel, degrading, or so wholly disproportionate to the offense as to shock the moral

sense of the community.” People v. Miller,

(2002). The Illinois Supreme Court

has twice indicated that young adult offenders may establish an unconstitutional life sentence

through a postconviction petition. In People v. Thompson, our supreme court rejected the 19-year-

old defendant’s as-applied constitutional challenge because it was raised for the first time on

appeal. People v. Thompson,

. However, the court noted that the defendant

was not prohibited from raising the issue through the Post-Conviction Hearing Act.

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¶ 23 In People v. Harris, our supreme court reversed the appellate court’s decision because the

“appellate court held [the] defendant’s sentence violated the Illinois Constitution without a

developed evidentiary record on the as-applied constitutional challenge.” People v. Harris,

. The court concluded that, because Miller did not apply directly to the 18-year-

old defendant’s circumstances, the record must be sufficiently developed to support the

defendant’s as-applied challenge. Id. ¶ 45.

¶ 24 We have described the import of Thompson and Harris as permitting “young adult

offenders” to bring a postconviction claim “alleging that their sentences in excess of 40 years

imposed without consideration of the Miller factors are unconstitutional as applied to them under

the proportionate penalties clause.” People v. Horshaw,

, ¶ 69. Critical

to success on a young adult proportionate penalties claim is a factual showing that “the science

concerning juvenile maturity and brain development applies equally” to a young adult’s case. See

People v. House,

. With the overarching law between the Illinois

proportionate penalties clause and the eighth amendment to the United States Constitution laid out,

we can analyze whether defendant has satisfied the cause and prejudice test under section 122-

1(f).

¶ 25 As discussed above, a defendant establishes 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.’ ” Bailey,

. Defendant relies on the evolving caselaw and

scientific research regarding young adult offenders, which in turn led defendant to seek the report

from Dr. Garbarino to substantiate his claim. However, in Dorsey,

, our

supreme court held that “Miller’s announcement of a new substantive rule under the eighth

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

penalties clause.” The court continued that “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.’ ”

(quoting People v. LaPointe,

). Based on

Dorsey’s clear holding, defendant cannot establish cause for his failure to raise his proportionate

penalties claim in his initial postconviction petition.

¶ 26 To be sure, this court has on occasion concluded that a defendant has established cause

based on the evolution of the case law in the juvenile sentencing arena. However, as we recognized

in People v. Walsh, it appears that, when the court has done so, it has largely been based on the

State’s concession of the issue. People v. Walsh,

; see Horshaw,

, ¶ 122 (noting that the State did not dispute that the defendant had

established cause “based on the retroactive application of Miller to cases on collateral review”);

People v. Meneses,

(“The State concedes that defendant has

established the first prong.”); People v. Green,

(noting that the

State conceded that cause had been established “because the evolving case law involving the

sentencing of youthful offenders was not available” when the defendant filed his prior petitions).

¶ 27 We further explained in Walsh that when cause has been fully litigated, as it was here, this

court has universally applied the holding in Dorsey to conclude that cause has not been established

based on the prior unavailability of Miller and its progeny. Walsh,

;

see People v. Figueroa,

. In Figueroa, this court began by

noting that the State had “maintained from the outset” that the defendant had failed to satisfy the

cause prong for filing a successive petition because he had not brought the claim in an earlier

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petition.

. This court then concluded that Dorsey was “entirely dispositive,” based on the

above-quoted language, and that the defendant had not established cause for his failure to raise his

proportionate penalties claim in an earlier proceeding.

; see also People v. Ruddock,

(“The supreme court’s reasoning in Dorsey also establishes that the

defendant in this case cannot satisfy the cause prong of the cause-and-prejudice test for bringing a

successive postconviction petition with respect to his proportionate penalties claim under the

Illinois Constitution.”); People v. Hemphill,

(“It follows that,

based on the supreme court’s reasoning in Dorsey, defendant in this case cannot satisfy the cause

prong of the cause-and-prejudice test for bringing a successive postconviction petition with respect

to his proportionate penalties claim under the Illinois Constitution.”).

¶ 28 In the months following our decision in Walsh, this trend has held true. See People v.

Wimberly,

(“In light of the court’s pronouncement in Dorsey, the

defendant’s reliance on Miller and related developments in juvenile-sentencing case law as the

reason for his failure to bring his proportionate-penalties-clause claim in his initial petition is

insufficient to establish cause.”); People v. Jones,

(“Following Dorsey, in nearly every appellate court district, we have consistently rejected

successive postconviction petitions for lack of cause where the young adult defendant’s claim is

based on the proportionate penalties clause.”). Unless our supreme court reconsiders its decision

in Dorsey, we are bound by the court’s determination that Miller and its progeny do not provide a

petitioner with cause for failing to raise a proportionate penalties claim in an initial postconviction

petition. See People v. Artis,

(2009).

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¶ 29 Defendant attempts to distinguish Dorsey on a couple of levels. Defendant argues that,

because the defendant in Dorsey was a minor, the holding should not apply to the class of young

adult offenders. Defendant continues that Dorsey’s holding on lack of cause was “well-founded

with respect to juveniles” but that it was not until 2015 in Thompson that our supreme court

suggested the possibility of an “emerging adult” Miller claim. We disagree for a few reasons. First,

Dorsey’s holding was not so narrow. The 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.” (Emphasis added.) Dorsey,

.

As we recently explained, “[i]f 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.” People v. Walker,

.

¶ 30 Second, the primary case cited by our supreme court, LaPointe,

, held that the 18-year-old defendant had not established cause because Miller’s nonexistence

did not prevent the defendant from earlier raising a proportionate penalties clause claim. The

Dorsey court at least implicitly recognized that its decision applied equally to minors and young

adults. And courts in Illinois have historically recognized that there is a “significant developmental

difference not only between minors and adults but also between young adults and older adults.”

People v. Haines,

. Our supreme court over 100 years ago in

discussing minors, defined as those between 16 and 21 years of age, stated: “There is in the law of

nature, as well as in the law that governs society, a marked distinction between persons of mature

age and those who are minors”; “[t]he habits and characters of the latter are, presumably, to a large

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extent as yet unformed and unsettled.” People ex rel. Bradley v. Illinois State Reformatory,

(1894). This court has on multiple occasions reduced a 20-year-old defendant’s

sentence after a conviction of first degree murder. See People v. Mitchell,

(1973); People v. Maldonado,

(1992).

¶ 31 Thus, while the more recent caselaw certainly adds to defendant’s argument, his

proportionate penalties claim was “buildable” prior to Miller. Haines,

. As our supreme court has held, “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.” People v. Guerrero,

. We cannot, as

defendant requests, distinguish Dorsey for the reasons he urges.

¶ 32 Defendant also comments that the Dorsey court’s cause analysis constituted obiter dicta.

We disagree. Our supreme court found the lack of cause to be a sufficient basis, aside from

forfeiture, to uphold the trial court’s denial of the defendant’s motion for leave to file a successive

postconviction petition. See Woods v. Interstate Realty Co.,

(1949) (explaining

that “where a decision rests on two or more grounds, none can be relegated to the category of

obiter dictum”). Whether cause had been established to warrant allowing the defendant in Dorsey

to file a successive postconviction petition was a point “ ‘argued by counsel and deliberately

passed upon by the court.’ ” (Emphasis in original.) Exelon Corp. v. Department of Revenue,

(2009). That makes the court’s cause analysis, at minimum, judicial dicta, which

has “the force of a determination by a reviewing court and should receive dispositive weight in an

inferior court.” People v. Williams,

(2003). And even if obiter dicta, we are

bound to follow the court’s cause holding.

(explaining that regardless of whether the

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dicta was judicial or obiter, it “should have guided the appellate court”). Thus, classifying the

court’s analysis as dicta does not alter the binding effect it has on this court.

¶ 33 Defendant’s final argument on the cause front is that he was not impeded solely by the lack

of supporting caselaw but also by the lack of evidentiary support. In other words, defendant argues

that, although much of the caselaw he relies on existed when he filed his initial petition in 2019,

he did not obtain Dr. Garbarino’s report until June 2021. Defendant’s argument fails. Based on our

supreme court’s decision in Dorsey, defendant’s proportionate penalties claim was buildable even

prior to the Miller decision in 2012. Thompson, which came out the year after defendant was

sentenced and over four years before defendant filed his initial petition, expressly opened the door

to defendant’s current claim. Defendant had ample time to summon the evidentiary support to raise

his proportionate penalties claim. This is not a situation, like the cases cited by defendant, where

cause was established because newly discovered evidence surfaced that the defendants had no

control over. See People v. Weathers,

(concluding that the

defendant established cause where an Illinois Torture Inquiry and Relief Commission report was

issued after defendant’s initial postconviction petition was resolved); People v. Wrice,

(accepting the State’s concession that cause had been established where the

defendant relied on a government report that was released after he filed his initial postconviction

petition). Similar to the analysis above, if the caselaw underpinning defendant’s claim does not

provide cause, then defendant’s delayed investigation of the claim based on the lack of the caselaw

cannot provide cause either.

¶ 34 Dorsey’s holding 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

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penalties clause” is dispositive in this case. Defendant has not established cause because the Illinois

proportionate penalties clause existed long before he filed his initial postconviction petition and,

thus, he could have raised the claim at that time. His failure to do so prohibits his current claim

from proceeding. The trial court properly denied defendant’s motion for leave to file his successive

petition.

¶ 35 III. CONCLUSION

¶ 36 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 37 Affirmed.

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People v. French,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR- 3147; the Hon. Mary Margaret Brosnahan, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Jessica D. Ware, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Brian K. Hodes, and David H. Iskowich, Assistant Appellee: State’s Attorneys, of counsel), for the People.

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