                             2019 IL App (2d) 170070
                                  No. 2-17-0070
                            Opinion filed June 12, 2019
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Stephenson County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 93-CF-135
                                       )
MICHAEL D. HOOVER,                     ) Honorable
                                       ) John F. Joyce,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
       Justices McLaren and Hudson concurred in the judgment and opinion.

                                           OPINION

¶1     Defendant, Michael D. Hoover, appeals a judgment denying him leave to file a

successive petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 2016)). The proposed petition claimed that defendant’s life sentence for a murder that he

committed when he was 22 years old violated the eighth amendment to the United States

Constitution (U.S. Const., amend. VIII) and the Illinois Constitution’s proportionate-penalties

clause (Ill. Const. 1970, art. I, § 11). Defendant contends that he satisfied the cause-and-

prejudice threshold of section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2016)) for filing a

successive petition. We affirm.
2019 IL App (2d) 170070


¶2     Defendant was charged with first-degree murder (Ill. Rev. Stat. 1991, ch. 38, ¶ 9-1(a))

and armed robbery (id. ¶ 18-2(a)), based on the events of November 12, 1992, when he, William

Keene, and Anthony Ehlers entered a gun shop, killed the owner, and robbed the store.

Defendant was charged as an accomplice to the murder and as a principal in the armed robbery.

He initially entered a negotiated guilty plea, a condition of which was that he testify for the State

at the trials of Keene and Ehlers. Defendant testified at Keene’s trial but refused to testify

against Ehlers. On December 22, 1993, the trial court allowed him to withdraw his guilty plea

and proceed to trial.

¶3     The jury trial was held over three days in July 1994. The evidence established the

following. On the morning of November 12, 1992, Robert Peters Sr. was found dead inside

Bob’s Gun Shop, in Freeport. He was lying faceup behind the counter, with a knife protruding

from his neck and two gunshot wounds, to his head and his chest. According to Dr. Larry Blum,

who performed the autopsy, the knife cut across Peters’ esophagus and severed his jugular vein.

¶4     In a confession, defendant said the following. The three men had formed a plan to rob

the shop and shoot Peters. Two weeks before they acted, defendant surveilled the store and

contacted Ehlers. A week after that, the three men settled on their plan. On November 11, 1992,

they checked into a hotel near the shop. On the morning of November 12, defendant drove them

to the shop and they entered. Defendant asked Peters to show him a knife. Peters did so. Ehlers

then shot Peters in the chest and the head. Keene and Ehlers took some guns and knives.

Defendant took Peters’ wallet from his pocket, then went to the safe. He heard one of the other

men say that Peters was still alive. He then saw Keene take a knife from a cabinet and

repeatedly stab Peters. Defendant took some cash and other property from the safe, and the other

men took some more guns and knives. They fled.




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¶5     In his confession, defendant stated that the three men had intended to rob and shoot

Peters. Asked whether he had known that Peters would be killed, defendant replied that “it was

kind of like if that’s what happened it happened.”

¶6     The jury found defendant guilty. At sentencing, the court heard the following evidence.

A woman testified that in 1984 or 1985, when she was 14 years old, defendant threatened her

with a knife. Another woman testified that in 1987 she had moved because defendant had been

harassing her for several months. Defendant went to her new home and threatened to kill the

owner if he did not let defendant see her. After she notified the police and a complaint was filed,

she and her mother relocated to another city.

¶7     James Harnish testified that he and defendant committed numerous burglaries and vehicle

thefts between 1982 or 1983 and 1989. They were convicted of three residential burglaries and

an armed burglary. All of these crimes had been defendant’s idea.

¶8     Laura Jones, at whose home defendant resided for about eight months before the Peters

murder and four months afterward, testified that he had sold marijuana and cocaine from the

house. He abused her physically and psychologically numerous times. In November 1992, he

put a gun to her head and forced her to kneel because she had not flushed the toilet. Another

time, he pinned her against a wall and choked her; when he let her go and she dropped to the

floor, he kicked her several times. In January 1993, he held a gun to her head and said that he

would kill her. For three weeks in August 1994, while incarcerated, he made numerous collect

calls daily to her at her workplace, threatening to kill her.

¶9     A police officer testified that he searched defendant’s storage locker in April 1993 and

found a shotgun that had been sawed off to three inches less than the legal minimum.




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¶ 10   In mitigation, defendant noted that he had not been involved in inflicting any of Peters’

wounds, that he had testified against Keene, and that he had confessed.

¶ 11   The court sentenced defendant to an extended term of life imprisonment for first-degree

murder, based on the finding that the offense had been accompanied by exceptionally brutal or

heinous conduct indicative of wanton cruelty (see id. ¶ 1005-8-1(a)(1)(b)).         The court also

sentenced defendant to an extended term of 50 years’ imprisonment for armed robbery.

¶ 12   The court explained the sentences as follows. First, no statutory factors in mitigation

applied. In particular, defendant had not led a law-abiding life for a substantial period before the

offenses. In October 1987, he was convicted of battery, criminal trespass to land, and disorderly

conduct. In November 1987, he was convicted of retail theft. In May 1988, he was convicted of

two weapons offenses and two counts of possessing cannabis. In July 1988, he was convicted in

Wisconsin of two burglaries and one armed burglary. In October 1991, he was convicted of

escaping from prison. Thus, the court reasoned, defendant’s character and attitude indicated that

he was “very likely to commit further crimes.” One nonstatutory factor in mitigation applied:

defendant had testified for the State at a codefendant’s trial.

¶ 13   The court turned to factors in aggravation. Defendant had a long and serious criminal

history, and a lengthy sentence was needed to deter others from committing similar crimes. The

court then turned to defendant’s rehabilitative potential:

       “The Court notes that the Defendant is now 24 years of age. That at the time of the

       [Peters murder] the Defendant was 22 years of age. That at the time of the [Peters

       murder] the Defendant in adult court had been convicted of eight misdemeanor[s] ***,

       two charges of burglary, and one armed burglary.           The Defendant was previously

       sentenced to [prison in] Wisconsin for eight years. *** The Defendant was convicted of




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2019 IL App (2d) 170070


       the offense of escape in Wisconsin and was sentenced to *** 30 months in [prison] ***.

       The Court finds that as an adult the Defendant has had 12 convictions since he turned 17

       and has served two previous terms in the Department of Corrections.”

¶ 14   The court noted that defendant had been paroled from prison on August 17, 1992. Thus,

he committed the Peters murder and the armed robbery fewer than 90 days after being released,

and he had planned the crimes even earlier. The court stated, “[T]he rehabilitative potential of

the Defendant is almost nill [sic].”

¶ 15   The court observed that, when he entered the shop, defendant was aware that Peters was

going to be shot and killed. Peters was shot twice and, while he was still alive, Keene “cold-

bloodedly, brutally, cruelly cut [his] throat.” There was “no better example of what could be

considered as grossly ruthless, devoid of any kind of mercy or compassion, in fact, cruel and

cold-blooded.”

¶ 16   On appeal, defendant contended in part that his life sentence for murder was excessive in

view of his conviction as an accomplice only and his testimony against Keene.          He also

contended that his extended-term sentence for armed robbery was legally erroneous.          We

reduced his sentence for armed robbery to 30 years but otherwise affirmed. People v. Hoover,

285 Ill. App. 3d 1102 (1996) (table) (unpublished order under Illinois Supreme Court Rule 23).

Explaining our refusal to modify his sentence for murder, we noted the gratuitous cruelty of the

murder, defendant’s major role in planning and facilitating the crime, and the ample precedent

for sentencing an accomplice to life based on the brutal or heinous conduct of the principal.

Hoover, slip order at 66-70.

¶ 17   In 2008, defendant petitioned under the Act, claiming that his life sentence violated

Apprendi v. New Jersey, 530 U.S. 466 (2000). The trial court dismissed the petition summarily.




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We affirmed, as Apprendi did not apply retroactively to a collateral proceeding. People v.

Hoover, 399 Ill. App. 3d 1234 (2010) (table) (unpublished order under Illinois Supreme Court

Rule 23).

¶ 18   On November 30, 2016, defendant moved under section 122-1(f) of the Act for leave to

file a successive petition. Section 122-1(f) reads:

       “Only one petition may be filed by a petitioner *** without leave of the court. 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. For purposes of this subsection (f): (1) 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; and (2) 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.” 725 ILCS 5/122-

       1(f) (West 2016).

¶ 19   Defendant’s proposed petition claimed that the law allowing a life sentence for first-

degree murder was unconstitutional as applied, under both the eighth amendment and the

proportionate-penalties clause. The petition relied on Miller v. Alabama, 567 U.S. 460 (2012),

which held that sentencing one who was under 18 years old when he offended to mandatory life

imprisonment without parole violates the eighth amendment.            Defendant contended that,

although he had been 22 when he offended and his life sentence was discretionary, the

“principle” of Miller, that juveniles and “young adults” are different from mature adults for

sentencing purposes, still applied. He noted that in People v. House, 2015 IL App (1st) 110580,




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vacated, No. 122134 (Ill. Nov. 28, 2018), the court had applied Miller to invalidate a mandatory

life sentence for a 19-year-old who was convicted of murder under an accountability theory.

¶ 20     Defendant contended that he had satisfied the “cause” requirement of section 122-1(f) in

that Miller and House were decided long after the proceedings on his first petition.             He

contended that he had satisfied the “prejudice” requirement because, in light of the “new

substantive rule” of Miller, the trial court would have been required to consider his relative youth

and likely would have imposed a shorter sentence.

¶ 21     The trial court denied defendant’s motion and his motion to reconsider. He timely

appealed.

¶ 22     On appeal, defendant originally argued that he satisfied section 122-1(f)’s requirements

for both his federal and state constitutional claims. After he filed his initial brief, however, our

supreme court issued People v. Harris, 2018 IL 121932, which held that Miller does not apply to

anyone who was 18 years of age or older when he offended. Id. ¶¶ 60-61. Thus, in his reply

brief, defendant abandoned his eighth-amendment claim. On our de novo review (see People v.

Gillespie, 407 Ill. App. 3d 113, 124 (2010)), we limit ourselves to the proportionate-penalties

claim.

¶ 23     As pertinent here, the proportionate-penalties clause states, “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. Defendant contends that he

satisfied the cause-and-prejudice test for his claims that (1) the trial court violated the clause by

failing to take into account his youth at the time of his offense and (2) his life sentence violated

the clause because it denied him the opportunity to restore himself to useful citizenship.




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¶ 24   We disagree with defendant. Our opinion in People v. LaPointe, 2018 IL App (2d)

160903, controls this case. We therefore explain it in depth.

¶ 25   In LaPointe, the defendant was convicted of a first-degree murder that he committed

when he was 18 years and 37 days old. Based on a finding that the offense, the premeditated

shooting of a taxicab driver, had been accompanied by exceptionally brutal or heinous conduct,

the trial court sentenced him to life imprisonment without the chance of parole. On his direct

appeal, this court reduced his sentence to 60 years, the maximum nonextended term. We relied

in part on defendant’s only prior conviction being of burglary and his drug problems and difficult

upbringing. People v. LaPointe, 85 Ill. App. 3d 215, 222 (1980). We also relied on the

proportionate-penalties clause, reasoning that the trial court had considered the seriousness of the

offense but not the possibility that the defendant could eventually be restored to useful

citizenship. Id. at 224.

¶ 26   The supreme court reinstated the life sentence. It stated that the proportionate-penalties

clause had not required the trial court to make specific findings about the defendant’s

rehabilitative potential or to detail for the record how it had decided that the life sentence was

appropriate. People v. LaPointe, 88 Ill. 2d 482, 493 (1981). Moreover, it noted that the trial

court had specifically rejected any argument that the defendant’s offense resulted from

circumstances that were unlikely to recur or that his character and attitude indicated that he was

unlikely to commit another crime. Id. Next, the court disagreed with our statement that the

defendant lacked a significant criminal history; in addition to the burglary conviction, he had

possessed and used illegal drugs over two or three years and had solicited a friend to assist him

in a robbery and to sneak drugs into jail. Id. at 494. Finally, the trial court had not abused its

discretion in applying the “brutal or heinous” enhancement; the defendant had a significant




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criminal history, his crime was premeditated and cold-blooded, and he had shown a lack of

remorse while awaiting trial. Id. at 501.

¶ 27   The defendant filed two petitions under the Act, one in 2002 and the other in 2011. Both

claimed ineffective assistance of counsel.      The first was summarily dismissed; this court

affirmed. People v. LaPointe, 341 Ill. App. 3d 1118 (2003) (table) (unpublished order under

Illinois Supreme Court Rule 23). The second was denied after an evidentiary hearing; this court

affirmed. People v. La Pointe, 2015 IL App (2d) 130451.

¶ 28   In 2016, the defendant again sought leave to file a successive petition, this time to

contend that his life sentence violated the eighth amendment and the proportionate-penalties

clause. Specifically, his proposed petition alleged first that his sentence violated Miller even

though he had turned 18 shortly before his crime. LaPointe, 2018 IL App (2d) 160903, ¶ 19.

The proposed petition did not explicitly and directly allege that the sentence violated the

proportionate-penalties clause, but, on appeal, we construed it as having done so. Id. ¶ 49.

¶ 29   The defendant alleged that he satisfied section 122-1(f)’s cause requirement, because

Miller had not been decided when he litigated his earlier petitions. He also alleged that he had

satisfied the prejudice prong, because he had alleged that the sentencing judge had failed to

consider the factors that Miller required. The trial court denied the motion, and the defendant

appealed.

¶ 30   On appeal, we held first that the eighth-amendment claim necessarily failed, because

Miller created a bright-line rule limiting its holding to those who were under 18 years old when

they offended. Id. ¶¶ 36-37; see Miller, 567 U.S. at 465.

¶ 31   We then turned to the defendant’s proportionate-penalties-clause claim. We assumed for

purposes of the appeal that the clause is not merely coextensive with the eighth amendment but




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provides additional protections to defendants. LaPointe, 2018 IL App (2d) 160903, ¶¶ 51-54;

see People v. Patterson, 2014 IL 115102, ¶ 106 (clauses are “co-extensive”); People v. Clemons,

2012 IL 107821, ¶ 40 (proportionate-penalties clause is broader than eighth amendment). We

held that, for a variety of reasons, the claim failed both the cause and prejudice prongs.

¶ 32   First, we turned to the cause prong. We noted that the defendant could have raised the

proportionate-penalties claim in his original petition, as the clause was “very much in existence

then” and the proposition that a defendant’s youth is pertinent to sentencing was well

established. LaPointe, 2018 IL App (2d) 160903, ¶ 55. Indeed, we noted, the argument had

been available at his trial and on direct appeal, and on both occasions he had actually argued that

the proportionate-penalties clause militated against a life sentence. Id.

¶ 33   We rejected the defendant’s assertion that the unavailability of Miller at the time of the

first postconviction proceeding meant that his claim was unavailable. The defendant’s claim

rested not on the substantive rule of law that Miller created but only on “some of the support that

the [Miller] Court found for the new rule,” i.e., recent scientific research that “add[ed] to the

received wisdom in favor of according a defendant’s youth great weight in sentencing.”

(Emphasis in original.) Id. ¶ 58.

¶ 34   We turned next to the prejudice prong. We explained first that the Act is limited to

claims of constitutional deprivations (see 725 ILCS 5/122-1(a)(1) (West 2016); People v.

Whitfield, 217 Ill. 2d 177, 181 (2005)) and that, properly understood, the claim was not of that

ilk:

       “Although it invoked the proportionate-penalties clause, the proposed petition alleged

       only that the trial court ignored the factors of youth and rehabilitative potential that the

       clause required it to consider. That fell short of contending that the life sentence itself




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       violated the clause by being disproportionate to the offense. Once it is acknowledged

       that defendant’s proportionate-penalties claim is not truly a Miller claim, there is nothing

       constitutional about it.” LaPointe, 2018 IL App (2d) 160903, ¶ 61.

¶ 35   We next noted a second reason why the claim failed the prejudice prong: it was barred by

forfeiture and res judicata. On the first score, the defendant could have raised the claim on

direct appeal. Id. ¶ 62. On the second score, on direct appeal, the supreme court in essence did

consider the claim and rejected it. The court did not even consider the life sentence an abuse of

discretion, much less a constitutional violation. Id. ¶ 63; see LaPointe, 88 Ill. 2d at 493.

¶ 36   Third, we noted, insofar as the proposed petition had raised a genuine claim of a

proportionate-penalties violation, it was wholly insufficient. The supreme court’s 1981 opinion

bound us to that conclusion.        LaPointe, 2018 IL App (2d) 160903, ¶ 65.            Further, we

distinguished two opinions on which the defendant relied. In House, a murder case, the 19-year-

old defendant acted as a lookout for the actual killers, and his life sentence had been mandated

by statute; in LaPointe, the defendant was the principal in a premeditated murder, and the

sentence was discretionary. Id. In People v. Harris, 2016 IL App (1st) 141744, aff’d in part and

rev’d in part, 2018 IL 121932, the defendant received an aggregate 76-year sentence for one

murder and one attempted murder, both committed as a principal. Relying partly on House, the

appellate court held that the sentence violated the proportionate-penalties clause because a

de facto life sentence imposed on one who had turned 18 a few months before the offenses, had

committed no prior crimes, and showed some rehabilitative potential “ ‘shock[ed] the moral

sense of the community.’ ” LaPointe, 2018 IL App (2d) 160903, ¶ 67 (quoting Harris, 2016 IL

App (1st) 141744, ¶ 69). By contrast, we noted, the defendant in LaPointe had a substantial

history of criminal and antisocial acts. Also, we agreed with the partial dissent in Harris that the




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majority’s reliance on House ignored the great difference between acting as a lookout for the

killers and actually killing with premeditation. Id. ¶ 69; see Harris, 2016 IL App (1st) 141744,

¶ 85 (Mason, J., concurring in part and dissenting in part).

¶ 37   We now apply LaPointe here. We hold first that defendant’s claim failed the cause prong

of section 122-1(f). As in LaPointe, the proportionate-penalties claim could have been raised in

defendant’s first petition under the Act. The clause was in existence then and the principle that a

defendant’s youth is relevant to sentencing was well established. The claim was not created by

Miller any more than was the claim in LaPointe.

¶ 38   We hold second that the claim failed the prejudice prong of section 122-1(f). Again, we

follow LaPointe. First, as in LaPointe, defendant’s primary contention, that the trial court erred

by failing to consider his youth at the time of the offense, did not raise a genuine claim of a

constitutional deprivation.    It merely amounted to a contention that the court abused its

sentencing discretion. That was not the same as contending that defendant’s life sentence itself

was so disproportionate to his offense as to violate the constitutional prohibition. See LaPointe,

2018 IL App (2d) 160903, ¶ 61.

¶ 39   We note parenthetically that the proposed petition’s assertion that the trial court ignored

his relative youth is severely undercut by the record. The court specifically stated that defendant

was 22 years old when he committed the offenses. The court also stated that defendant’s

substantial record of criminal and antisocial behavior as an adult and the circumstances of the

murder and armed robbery demonstrated that his rehabilitative potential was almost nil. Thus,

there is no basis to assume that the court ignored the factor that defendant asserts it did; as in

LaPointe, the court was not required to detail on the record all of the considerations that it

weighed in deciding on the sentence. See LaPointe, 88 Ill. 2d at 493.




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¶ 40    Second, as was true of the claim in LaPointe, defendant’s claim could have been raised

on his direct appeal. Thus, it was barred by forfeiture. See LaPointe, 2018 IL App (2d) 160903,

¶ 62.

¶ 41    Third, insofar as the proposed petition did raise a genuine claim under the proportionate-

penalties clause, the claim was so lacking in arguable merit that its absence in the original

proceeding did not work any prejudice to defendant. As pertinent here, a sentence does not

violate the clause unless it is “ ‘cruel, degrading, or so wholly disproportionate to the offense

committed as to shock the moral sense of the community.’ ” People v. Sharpe, 216 Ill. 2d 481,

487 (2005) (quoting People v. Moss, 206 Ill. 2d 503, 522 (2003)).

¶ 42    It cannot be seriously contended that defendant’s life sentence was wholly

disproportionate to his offense, if indeed it was disproportionate at all. Surely if LaPointe’s

sentence failed this high standard (as the supreme court held that it did), then so must

defendant’s sentence. Although LaPointe was convicted as the principal and lone offender and

defendant as an accomplice, that difference is of limited significance. As the trial court and this

court noted previously, defendant’s role in planning and facilitating the murder was both

extensive and crucial. Both murders met the “exceptionally brutal or heinous” standard, but the

murder of Peters was especially prolonged and sadistic. Further, LaPointe was 18 at the time of

his offense and had only one felony conviction; defendant was 22 and had a total of 12

convictions, including 4 felonies.      The trial court reasonably found that his rehabilitative

potential was almost nil. Not only was defendant’s sentence no shock to the moral sense of the

community, it was not even an abuse of discretion—as we held on his direct appeal.

¶ 43    We conclude that defendant’s motion did not satisfy either the cause or prejudice prong

of section 122-1(f) of the Act. Therefore, the trial court correctly denied it.




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¶ 44   We affirm the judgment of the circuit court of Stephenson County.

¶ 45   Affirmed.




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