FIRST DISTRICT, FIRST DIVISION December 30, 2022

No. 1-20-1255

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 92 CR 13556 04 ) TIMOTHY MOBLEY, ) Honorable ) Neera Lall Walsh, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Lavin concurred in the judgment. Justice Hyman dissented. ORDER

¶1 Held: Circuit court did not err in denying defendant leave to file a successive postconviction petition where he failed to establish cause and prejudice in his petition.

¶2 After a jury trial, defendant Timothy Mobley was found guilty of murder and aggravated

kidnapping. The circuit court sentenced defendant to consecutive terms of 90 years’ imprisonment

for murder and 5 years’ imprisonment for aggravated kidnapping. Defendant’s convictions and

sentences were affirmed on direct appeal. People v. Mobley, No. 1-94-4206 (March 27, 1997)

(unpublished order under Illinois Supreme Court Rule 23). This Court affirmed the trial court’s

denial of defendant’s initial pro se postconviction petition under the Post-Conviction Hearing Act No. 1-20-1255

(Act) (725 ILCS 5/122-1 et seq. (West 1998)). People v. Mobley, No. 1-06-0349 (June 30, 2008)

(unpublished order under Illinois Supreme Court Rule 23). The trial court’s denial of leave to file

defendant’s first successive postconviction petition was also affirmed. People v. Mobley,

.

¶3 On August 7, 2019, defendant sought leave to file a second successive postconviction

petition, claiming that because he was 20 years old at the time of these offenses, his sentence

violated the principles articulated in Miller v. Alabama,

(2012), the eighth

amendment, and the proportionate penalties clause of the Illinois Constitution. The circuit court

denied leave to file, finding that defendant failed to meet the cause-and-prejudice test. For the

following reasons, we affirm.

¶4 BACKGROUND

¶5 Defendant was convicted of the first degree murder and aggravated kidnapping of 19-year-

old Kristin Ponquinette. Since the facts of this case have been fully set forth in our prior orders,

we restate only those facts necessary to resolve defendant’s current appeal. See, e.g., Mobley,

.

¶6 On the evening of April 17, 1992, Carin Smith accompanied Sharon Burke to Cassandra

Butler’s house. Ponquinette attempted to leave when they arrived, but Burke told her that she

“wasn’t going anywhere.” Burke and Butler forced Ponquinette into the basement; slapped her;

questioned her about calling Burke a “bitch;” asked “who [she] had been sleeping with;” held a

saw to her throat; cut her hair with a scissors; tied her hands behind her back with a tape measure;

stuffed a sock in her mouth; and forced her into a closet.

¶7 After leaving Butler’s house, Smith realized she did not have her keys. When Smith

returned, Ponquinette was still tied up with the sock in her mouth and was being taunted by Butler,

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Venus Becom, Chezeray Moore, and Terrence Mobley. 1 Butler’s brother came downstairs and told

everyone to leave. Ponquinette was untied and left the house with Terrence and Moore.

¶8 Becom testified that she went with Sonya Richardson and Lashonda Wilson to Moore’s

garage, where they found Moore, Amotto Jackson, and Ponquinette. Richardson told Ponquinette

she would make her “suck all the brothers’ dicks.” She told Becom to go get “the brothers” (the

male members of the Black Stones street gang), including defendant, Henry Lovett, Moore and

Terrance. When Becom returned, Ponquinette “was crying to Moore’s mother to help her.”

Moore’s mother told the group to leave the garage and “get [Ponquinette] out of my house.”

¶9 Several male Black Stones gang members, including defendant, Moore, Charles Carpenter,

and Jackson, were at a nearby park playground when Becom arrived with Ponquinette. Becom

accused Ponquinette of having sex with her boyfriend and knocked her down. Becom and

Richardson kicked and beat Ponquinette while she was on the ground. After approximately five

minutes, defendant eventually “broke it up,” and the women stopped beating Ponquinette.

¶ 10 Jackson led Ponquinette away from the group towards the “black bridge,” a bridge over

the Cal-Sag Channel near South Eggleston and West 129th Place. Becom heard defendant tell the

others that Ponquinette “knows too much already about the one service, we have to get rid of her,

kill her or something, get her away from around here.” 2 Carpenter also heard defendant say, “kill

the bitch.”

¶ 11 Becom explained the “ranking system” for the Black Stones street gang: Defendant was an

“Angiel” in the gang, meaning that he could “tell the other brothers what to do.” Defendant had

the authority to instruct lower-ranking members, such as Moore and Jackson, to commit murder.

Lower-ranking gang members needed to obtain permission from a higher-ranking member to

1 We refer to Terrence Mobley by his first name to avoid confusion with defendant. 2 Becom testified that a “service” was a gang meeting conducted at the black bridge.

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participate in a murder.

¶ 12 Lloyd Bryant picked defendant up from the park and drove him to a nearby liquor store to

pick up Henry Lovett. Defendant told Bryant that he was doing “nation business,” which Bryant

understood to mean that he was doing “Black Stone business.” Defendant and Lovett got out of

Bryant’s car near the black bridge.

¶ 13 Approximately 30 minutes after Jackson and Ponquinette left the playground, Wilson and

another Black Stone gang member were walking toward the black bridge when Jackson

approached them “laughing saying that he was going to get a sewer cover.” They continued

walking and ran into Moore, who said, “We hit the bitch in the head with bricks and she still

wouldn’t die.” Wilson saw Ponquinette “laying on some railing” near the bridge with her hands

and feet tied together. Lovett warned Wilson that they should leave if they did not want to see what

was going to happen. As Wilson was leaving, she saw Jackson carrying a sewer cover over his

head.

¶ 14 On April 26, 1992, Ponquinette’s body was recovered from the Cal-Sag Channel,

downriver from the black bridge. Her hands were tied behind her back with white rope and her

feet were bound with green electrical wire. A sewer cover tied with green electrical wire matching

the wire on Ponquinette’s feet was also recovered in the Channel near the black bridge, along with

a large rock smeared with human blood and Ponquinette’s hair. According to the report,

Ponquinette was alive when she entered the water and died from “drowning in association with

blunt trauma injuries to the head.” The jury returned a verdict finding defendant guilty of first

degree murder and aggravated kidnapping.

¶ 15 The presentence investigation report (PSI) introduced at defendant’s sentencing hearing

reflected that defendant was 20 years old at the time of the murder and had a 1990 felony

conviction for unlawful use of a weapon and a 1991 felony conviction for possession of a

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controlled substance, for which he was on probation at the time of the instant offense. The PSI also

indicated that defendant was raised by his parents, with whom he had “a close relationship.”

Although he never received a high school diploma, “he took English and business courses at

Kennedy-King College and Olive-Harvey College.” Defendant had co-owned a bar with his father

for six years and admitted that he sold cocaine from age 18 to 21. He reported no mental health

issues or problems with alcohol or marijuana, which he began using when he was 16. Defendant

had been a Black Stones street gang member since the age of 16.

¶ 16 The State requested a “substantial sentence” of natural life in prison, arguing that defendant

“started the ball rolling ***. People acted on what he said. He is just as guilty, just as responsible

for her death as the people who actually threw her off the bridge.”

¶ 17 In mitigation, defense counsel argued that defendant did not physically participate in the

offenses and was not present “when [Ponquinette] was actually thrown off the bridge.” While

conceding that defendant issued the order to kill Ponquinette, counsel argued that defendant “has

a minimal acquaintanceship with the criminal justice system,” “is a young man,” “has taken some

courses in college,” “is bright,” “has a capability,” and could be rehabilitated. Counsel urged the

court to “give Mobley credit for his testifying” as a State witness in an unrelated murder trial and

requested a sentence of “30 or 40” years.

¶ 18 Before imposing sentence, the trial court “considered the facts of this case, *** the

arguments and statements made by the parties, *** the aggravating and mitigating factors, both

the statutory and those as presented to me in the presentence investigation and by argument of the

parties.” The court found the facts to be “exceptionally brutal and heinous, indicative of wanton

cruelty” and “shockingly evil.” The court recognized that “the defendant set into motion the events

that occurred that day,” and that “if the defendant did not utter those words, he might not even be

here today. There might not be any case.” The court also considered the defendant’s cooperation

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“with the authorities and testifying in that particular case *** in mitigation.” Defendant was

sentenced to 90 years’ imprisonment for first degree murder, to be served consecutively to 5 years’

imprisonment for aggravated kidnapping.

¶ 19 On direct appeal, defendant argued, inter alia, that the trial court abused its discretion

“when it ignored his rehabilitative potential and sentenced him to 95 years in prison” because of

his role in the murder. People v. Mobley, No. 1-94-4206 (March 27, 1997) (unpublished order

under Illinois Supreme Court Rule 23) This court affirmed the circuit court, finding that the

sentence was not excessive, and the trial court considered defendant’s rehabilitative potential.

¶ 20 On September 9, 1998, defendant filed an initial pro se petition for postconviction relief

claiming, inter alia, that his trial counsel was ineffective for failing to communicate with him or

investigate and call witnesses. People v. Mobley, No. 1-98-4360 (December 26, 2000)

(unpublished order under Illinois Supreme Court Rule 23). The trial court summarily dismissed

the petition, finding that it was untimely and patently without merit. We excused the untimeliness

of defendant’s petition, finding that “he acted without culpable negligence,” and reversed and

remanded for an evidentiary hearing. Mobley, No. 1-98-4360.

¶ 21 On remand, after an evidentiary hearing, the trial court found that defendant had not shown

that he received ineffective assistance of counsel. This court affirmed. People v. Mobley, No. 1-

06-0349 (June 30, 2008) (unpublished order under Illinois Supreme Court Rule 23).

¶ 22 On September 19, 2014, defendant mailed a motion for leave to file his first successive

postconviction petition. His subsequent motion to dismiss the appeal was granted on July 20, 2016.

Defendant refiled his motion for leave to file a successive postconviction petition on September 8,

2016. He alleged that the State suborned perjury and committed a Brady violation, and that his

trial counsel had a per se conflict of interest. The trial court denied leave to file in a written order

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entered on April 7, 2017, finding that defendant had not established cause and prejudice. This court

affirmed. Mobley,

.

¶ 23 On August 7, 2019, defendant sought leave to file his second successive postconviction

petition, claiming that he was 20 years old at the time of these offenses and the trial court failed to

consider a number of mitigating sentencing factors, in violation of Miller v. Alabama,

(2012), the eighth amendment, and the proportionate penalties clause of the Illinois

Constitution. He also alleged that his due process and equal protection rights were violated by

expert testimony introduced at trial. On January 14, 2020, defendant supplemented his petition

with his own affidavit describing the circumstances of his upbringing. The trial court denied leave

to file on September 11, 2020, finding that defendant failed to meet the cause-and-prejudice test.

¶ 24 ANALYSIS

¶ 25 On appeal, defendant focuses solely on the sentencing claims raised in his August 7, 2019,

petition, alleging violations of his constitutional rights under the eighth amendment of the United

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

Constitution (Ill. Const. 1970, art. I, § 11) as applied to him. Defendant asserts that his petition

demonstrates prima facie cause and prejudice under the Act.

¶ 26 The Act provides that a defendant may assert a “substantial denial” of his constitutional

rights under the United States Constitution or the Illinois constitution or both, 725 ILCS 5/122-1

(West 2018); People v. Hodges,

(2009), but contemplates the filing of only one

petition without leave of court. People v. Lusby,

. Because successive

petitions “plague the finality of criminal litigation,” these hurdles are only “lowered in very limited

circumstances, where fundamental fairness so requires.” (Internal quotation marks omitted.)

People v. Tenner,

(2002).

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¶ 27 The filing of a successive postconviction petition is only allowed if defendant satisfies the

“cause-and-prejudice” test. People v. Pitsonbarger,

(2002); 725 ILCS 122-

1(f). “Cause” is established by “identifying an objective factor that impeded” the “ability to raise

a specific claim during *** initial post-conviction proceedings” and “prejudice” is shown by

demonstrating that the claim not raised “so infected the trial that the resulting conviction or

sentence violated due process.” 725 ILCS 5/122-1(f). The trial court “must determine whether

defendant has made a prima facie showing of cause and prejudice” before granting leave for the

petition to be filed. People v. Bailey,

.

¶ 28 Leave 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 *** that the claims alleged

by the [defendant] fail as a matter of law or where the successive petition with supporting

documentation is insufficient to justify further proceedings.” People v. Smith,

. Whether the denial of defendant’s motion for leave to file a successive postconviction petition

was proper is an issue that is reviewed de novo. Bailey,

.

¶ 29 The State concedes that defendant has established a prima facie showing of cause, “given

the nascence of claims relating to Miller, which was decided in 2012, and the lack of any authority

extending Miller to young adult offenders when petitioner filed his initial post-conviction

[petition] in 1998.” We disagree. “It is well established that we, as a court of review, are not bound

by a party’s concession.” People v. Carter,

.

¶ 30 The unavailability of Miller and its progeny does not constitute cause for defendant to raise

a claim under the proportionate penalties clause of the Illinois Constitution. Defendant relies on

evolving case law and scientific research to establish cause. In People v. Dorsey,

,

our supreme court observed that “Illinois courts have long recognized the differences between

persons of mature age and those who are minors for purposes of sentencing.” Id. ¶ 74. The court

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held 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.’ ” Id. (quoting

People v. LaPointe,

). Based on Dorsey, defendant’s failure to raise

his proportionate penalties claim in his initial petition does not establish “cause.”

¶ 31 Defendant is also unable to establish prejudice, as his claims are not legally cognizable

under either Miller’s eighth amendment principles or the proportionate penalties clause of the

Illinois Constitution. In Miller,

, the United States Supreme Court held that a

juvenile offender cannot be sentenced to mandatory life in prison without the possibility of parole.

The Court explained that a mandatory sentence precludes the sentencing court from considering

mitigating circumstances specific to youth and its attendant characteristics.

. Our

supreme court later explained that Miller’s language is “ ‘significantly broader than its core

holding.’ ” People v. Buffer,

(quoting People v. Holman,

).

¶ 32 To prevail on a Miller claim, “a defendant sentenced for an offense committed while a

juvenile must show that (1) the defendant was subject to a life sentence, mandatory or

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

attendant characteristics in imposing the sentence.” (Emphasis added) Id. ¶ 27. A de facto life

sentence for a juvenile is any sentence greater than 40 years. Id. ¶ 41.

¶ 33 Miller’s eighth amendment protections have not been extended to “offenders 18 years of

age or older.” People v. Harris,

(rejecting the defendant’s Miller claim

because “for sentencing purposes, the age of 18 marks the present line between juveniles and

adults. As an 18-year-old, defendant falls on the adult side of that line.”); People v. Herring, 2018

IL App (1st) 152, ¶ 103 (“[T]he [Supreme] Court drew a line at the age of 18 years; while it

acknowledged that the line was arbitrary, it ‘must be drawn.’ ”) (quoting Roper v. Simmons, 543

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, 574 (2005)). Because defendant was 20 years old at the time of these crimes, his eighth

amendment claim fails as a matter of law.

¶ 34 Defendant also argues that his sentence violates the proportionate penalties clause of the

Illinois constitution, which requires that “all penalties should be determined according to the

seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11; see People v. Gipson,

(the

proportionate penalties clause is not determined in lockstep with the eighth amendment but may

provide additional limitations on penalties). Under this provision, the application of a sentencing

statute is unconstitutional when it “is shocking to the moral sense of the community” based on an

“evolving standard[] of decency that mark[s] the progress of a maturing society.” People v. Miller,

(2002).

¶ 35 Imposing a sentence of 95 years for an “exceptionally brutal and heinous” murder during

which the victim was kidnapped, beaten, restrained, and drowned does not shock the moral sense

of the community. The trial court imposed a sentence within the statutory sentencing range of 60

to 100 years, finding that the murder was accompanied by “exceptionally brutal and heinous

behavior indicative of wanton cruelty.” 730 ILCS 5/5-8-2 (West 1994); 730 ILCS 5/5-5-3.2(b)(2)

(West 1994). This case is distinguishable from those in which a trial judge has no discretion due

to mandatory sentencing requirements.

¶ 36 The sentence imposed by the court reflects defendant’s personal culpability in ordering

Ponquinette’s murder. In the words of the trial judge: “The defendant set into motion the events

that occurred that day. If the defendant did not utter those words, he might not even be here today.

There might not be any case.” Defendant, a Black Stones “Angiel,” ordered subordinate gang

members to “kill” Ponquinette because she knew “too much” about gang activities. Based on

defendant’s order, lower-level gang members beat Ponquinette with a rock, bound her hands and

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feet with rope and electrical wire, tied her to a sewer cover, and threw her from the bridge into the

channel while she was still alive, causing her to drown “in association with blunt trauma injuries

to the head.” The record supports the trial court’s finding that “[t]his case is shockingly evil.” We

cannot say that the discretionary sentence imposed for ordering Ponquinette’s execution was

“cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the

community.” Miller,

.

¶ 37 The record does not support defendant’s claim that the trial court did not consider whether

“his functioning was constitutionally akin to that of a juvenile.” The circuit court considered the

information contained in the PSI and defense counsel’s arguments in mitigation regarding

defendant’s functioning. The information presented to the court included but was not limited to

the following: defendant was 20 years old at the time of the murder; while he never graduated high

school, he had taken college courses; he had co-owned a bar with his father for six years; and he

denied he any mental health issues or having a problem with alcohol or marijuana.

¶ 38 In addition, defendant’s claim that the trial court was “unable to take into account

information about [his] potential for rehabilitation” was rejected by this court on direct appeal. In

People v. Mobley, No. 94-4206 (March 27, 1997) (unpublished order under Illinois Supreme Court

Rule 23, we found that “we cannot say that *** the trial court failed to consider defendant’s

rehabilitative potential.” See Dorsey,

(“[T]he doctrine of res judicata bars

issues that were raised and decided on direct appeal”).

¶ 39 Because defendant’s petition failed to satisfy the cause-and-prejudice test, his motion for

leave to file a successive postconviction petition was properly denied. See Smith,

.

¶ 40 CONCLUSION

¶ 41 For the reasons set forth herein, we affirm the judgment of the circuit court of Cook County.

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¶ 42 Affirmed.

¶ 43 JUSTICE HYMAN, dissenting:

¶ 44 Recent developments relating to juvenile sentencing allow Timothy Mobley to seek a

review of his life sentence, despite the magnitude of his crime, and Mobley’s crime was violent

and heinous. Critical is the record, and the record here does not support the majority’s conclusion.

As the United States Supreme Court acknowledged in Graham v. Florida,

(2010),

“a threshold comparison between severity of the penalty and the gravity of the crime does not

advance the analysis.”

¶ 45 The majority joins decisions holding that People v. Dorsey,

, precludes

Mobley from filing a successive postconviction petition raising an as-applied challenge to his de

facto life sentence under the proportionate penalties clause. E.g., People v. French,

(collecting cases).

¶ 46 A fair reading of Supreme Court caselaw leads to the opposite result: Mobley made a

prima facie showing of cause. Indeed, petitions litigating similar claims are pending before the

Illinois Supreme Court. People v. Moore,

, appeal allowed, No. 126461

(Nov. 24, 2021); People v. Williams,

, appeal allowed, 126932 (Nov.

24, 2021). Likewise, a fair reading of the record and the successive petition compels finding

Mobley made a prima facie showing of prejudice.

¶ 47 Analysis

¶ 48 Standard of Review

¶ 49 This court reviews de novo a trial court’s decision to deny leave to file (People v. Bailey,

). In doing so, we accept as true all well-pled facts and affidavits. People v.

Edwards,

.

¶ 50 Successive Postconviction Petition

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¶ 51 The Post-Conviction Hearing Act allows the filing of multiple petitions. Petitioners may

by right file an initial petition (725 ILCS 5/122-1) and with leave of court may file a successive

petition (725 ILCS 5/122-1(f)). Petitioners who seek to file a successive petition must submit

enough documentation to allow the court to determine if the alleged facts make “a prima facie

showing of cause and prejudice.” Bailey,

. Courts deny petitioners leave to

file “when it is clear” their “claims fail as a matter of law or where the successive petition with

supporting documentation is insufficient[.]” People v. Smith,

.

¶ 52 Prima Facie Cause for Failure to Raise Constitutional Claim

¶ 53 A petitioner “shows cause by identifying an objective factor that impeded his or her ability

to raise a specific claim during his or her initial postconviction proceedings[.]” 725 ILCS 5/122-

1(f).

¶ 54 In appeals from the leave-to-file stage, appellate panels routinely have allowed a prima

facie showing of cause based on the evolving caselaw on sentencing juveniles and young adults.

See, e.g., People v. Minniefield,

; French,

(collecting recent cases). But some panels, citing the Supreme Court’s decision

Dorsey, have reached the opposite conclusion, holding sentencing claims by young adults fail as

a matter of law. See, e.g., French,

(citing Dorsey,

);

but see, People v. Vega,

.

¶ 55 Neither Dorsey nor decisions in its wake offer a “clear” explanation (Smith,

, ¶ 35) why sentencing claims like Mobley’s fail as a matter of law. To the contrary, Dorsey

and the majority add to a deepening split by failing to address conflicting Supreme Court caselaw.

¶ 56 First, consider the timing of orders entered in Dorsey, Moore, and Williams. The Supreme

Court decided Dorsey on July 29, 2021, and it denied a petition for rehearing on November 22,

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2021. Dorsey,

. Two days later, the Court allowed leave to appeal in Moore and

Williams. (Since then, the Court consolidated Moore and Williams.)

¶ 57 While drawing inferences from a sequence of unexplained, discretionary decisions by the

Supreme Court intrinsically involves venturing into the realm of the unknown and unknowable,

the Supreme Court’s conflicting caselaw provides a possible explanation. Dorsey did not write on

a blank slate. Dorsey does not fit with the Court’s caselaw on cause, on the relationship between

the eighth amendment and the proportionate penalties clause, or the novelty of young adult

sentencing claims.

¶ 58 Quoting Dorsey, the majority writes, “Miller’s unavailability prior to 2012 at best deprived

[petitioner] of some ‘helpful support’ for his state constitutional claim[.]” Infra ¶ 30 (quoting

Dorsey,

, quoting People v. LaPointe,

).

Accordingly, Mobley’s claim fails under Dorsey because “some ‘helpful support’ ” does not alone

establish cause. Infra ¶ 30. The majority accurately quotes Dorsey but bypasses the conflicting

caselaw.

¶ 59 Before Dorsey, there was Pitsonbarger, in which the Court adopted the “cause and

prejudice” test as “the analytical tool” for analyzing whether a court should permit the filing of a

successive petition. People v. Pitsonbarger,

(2002). When discussing “cause,”

the Court approved of caselaw from the United States Supreme Court finding “cause” where “ ‘ a

constitutional claim is so novel that its legal basis is not reasonably available to counsel[.]’ ”

Pitsonbarger,

(discussing Reed v. Ross,

(1984)).

¶ 60 Consistent with Pitsonbarger and Bailey,

, the prima facie cause for

Mobley’s claim arose after his initial postconviction proceedings. The Supreme Court has

recognized that young adult petitioners can raise as-applied challenges in postconviction petitions.

Harris,

(Post-Conviction Hearing Act “specifically allows for raising

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“‘constitutional questions which, by their nature, depend[] upon facts not found in the record.’”

(internal quotations omitted)); People v. House,

(remanded for second-stage

postconviction proceedings); see People v. Thompson,

(petitioner may renew

as-applied challenge in circuit court).

¶ 61 Furthermore, in 1998, during his initial postconviction proceedings, Mobley could not have

anticipated the line of cases expanding the holding of Miller. (For similar reasons, nor could he

have anticipated the Supreme Court’s decision in People v. Leon Miller,

(2002).)

¶ 62 That said, the Supreme Court in Dorsey did state, “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.” Dorsey,

. But see French,

(analyzing whether Dorsey’s analysis was “obiter dicta” or

“judicial dicta”). But again, this statement is at odds with other pronouncements of the Court.

¶ 63 Before Dorsey, there were McDonald, Clemons, and Patterson. In McDonald, our Supreme

Court described the proportionate penalties clause as “synonymous” with the eighth amendment’s

cruel and unusual punishment clause. People v. McDonald,

(1995). In

Clemons, the Supreme Court abrogated that holding. People v. Clemons,

.

But two years later, the Supreme Court in Patterson said, “[T]he Illinois proportionate penalties

clause is co-extensive with the eighth amendment’s cruel and unusual punishment clause[.]”

Patterson,

. So Dorsey runs headlong into these conflicting cases. See

People v. Coty,

(noting “appellate decisions * * * have aptly pointed out that

this court has not spoken consistently on the relationship between our proportionate penalties

clause and the eighth amendment”).

¶ 64 Dorsey cites Patterson to find a juvenile petitioner cannot rely on Miller’s “new substantive

rule” as “cause” to raise a claim under the proportionate penalties clause. Dorsey,

,

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¶ 74 (citing Patterson,

). Yet, Patterson described the proportionate penalties

clause and the cruel and unusual punishment clause as “co-extensive.” Patterson,

. Dorsey, in a single paragraph of analysis, never acknowledges this apparent contradiction

nor explains why identical or “co-extensive” clauses would treat one case (Miller) in two different

ways (Dorsey and Davis,

).

¶ 65 By drawing out these contradictions, I do not mean to endorse a narrow view of our

proportionate penalties clause. But, as I have observed, “by now, it is axiomatic that the

proportionate penalties clause provides greater protections than the eighth amendment.” People v.

Hill,

.

¶ 66 Take, for example, French, which noted that for more than 100 years, young adult

sentencing claims were “buildable” under the proportionate penalties clause. French,

(citing People v. Haines,

, pet. for leave to

appeal pending, no. 128006 (filed Dec. 21, 2021)). Nevertheless, the panel held a young adult

petitioner could not establish cause “because the Illinois proportionate penalties clause existed

long before he filed his initial postconviction petition.” Id. ¶ 34.

¶ 67 Respectfully, I find this holding difficult to square with common sense. Some

constitutional claims—like Miller claims and cases expanding on it—are so novel that their legal

bases are not reasonably available until a court makes them so. See Pitsonbarger,

. I view these claims not just through a historical prism but also as a response to our evolving

social values and norms that befit a maturing society. See Miller v. Alabama,

(2012); People v. Buffer,

.

¶ 68 Mobley made a prima facie showing to challenge his de facto life sentence. I reach this

conclusion because a fair reading of our caselaw does not make “clear” (Smith,

,

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¶ 35) his as-applied challenge under the proportionate penalties clause should fail as a matter of

law.

¶ 69 Prima Facie Showing of Prejudice

¶ 70 In addition, Mobley has made a prima facie showing of prejudice. Generally, a petitioner

“shows prejudice by demonstrating that the claim not raised during his [or her] * * * initial

postconviction proceedings so infected the trial that the resulting * * * sentence violated due

process.” 725 ILCS 5/122-1(f). Mobley met that burden by alleging: (i) his 20-year-old brain was

like a juvenile brain; (ii) he received a de facto life sentence; and (iii) the sentencing court did not

properly consider his youth and its attendant circumstances. See, e.g., People v. Horshaw,

, ¶ ¶ 132-150; People v. Brewer,

, ¶ ¶ 27-56.

¶ 71 The majority rejects these three contentions, misreading Supreme Court caselaw and the

record underlying Mobley’s sentence.

¶ 72 First, the majority writes Mobley’s as-applied claim under the proportionate penalties

clause is “not legally cognizable.” Supra ¶¶ 25, 31. This assertion finds no support in Supreme

Court caselaw. Indeed, the Court in Harris directed a young adult to raise an as-applied challenge

to his de facto life sentence under the proportionate penalties clause, not the eighth amendment.

Harris,

. See also House,

. Because Mobley did so in

his petition and on appeal focused on this claim, I reject the majority’s assertion.

¶ 73 Second, the majority writes Mobley’s de facto sentence is “distinguishable from those in

which a trial judge has no discretion due to mandatory sentencing requirements.” Supra ¶ 35.

Under Illinois law, this is not a meaningful distinction. In Holman, the Supreme Court rejected the

discretionary/mandatory dichotomy. People v. Holman,

. See generally

Horshaw,

, ¶ ¶ 125-131 (discussing history of mandatory/discretionary

distinction).

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¶ 74 Third, the majority contends that Mobley’s sentencing was Miller-compliant, and Mobley

raised this claim on direct appeal. Supra ¶ ¶ 34-37, 38. But, our Supreme Court has cautioned

courts and litigants that few pre-Miller records will be “developed sufficiently for appellate review

of an as-applied Miller claim.” Harris, 2018 IL App 121932, ¶ 43. In the Court’s view, records

meeting that criteria will fall under a “ ‘very narrow exception.’ ” Id. ¶ 44 (quoting Holman,

).

¶ 75 The record here justifies the Supreme Court’s caution. The majority contends Mobley’s

original sentencing complied with Miller because the “circuit court considered the information in

the PSI and defense counsel’s arguments in mitigation.” Supra ¶ 37. The record demonstrates that

the PSI cannot bear the weight the majority places on it. The PSI contains no psychological

information and states that Mobley denied having any mental health history. And, significantly,

the PSI itself cautions that, given too little time to prepare before sentencing, the information “may

or may not have been verified.” The record does not show that defense counsel filled evidentiary

gaps. Although the majority notes defense counsel argued on Mobley’s behalf, the record fails to

indicate that defense counsel presented any evidence in mitigation.

¶ 76 Against this backdrop, Mobley’s successive petition adds quite a bit. Edwards,

(noting courts must take as true allegations that record does not positively

rebut). Mobley’s affidavit establishes that he suffered physical, emotional, and sexual abuse by his

peers, parents, and school principal. The affidavit also shows he suffered a significant head injury

sometime after turning 13-years-old, around the time he gave into peer pressure and began

regularly abusing drugs and alcohol and participating in gang activity. Lastly, the affidavit

indicates that the officer who prepared his PSI included only “bare bones” assertions and spoke

with Mobley for just a few minutes.

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¶ 77 Thus, Mobley’s petition sufficiently alleged the existence of facts personal to him that

warrant further litigation of his as-applied claim under the proportionate penalties clause. Not only

does the record belie the majority’s claim that Mobley’s sentencing hearing complied with Miller,

but it also belies that this court could have considered the issue on direct appeal.

¶ 78 I would reverse and remand for second stage proceedings.

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