                                          2018 IL App (3d) 150189

                                Opinion filed August 21, 2018
     _____________________________________________________________________________

                                                   IN THE

                                    APPELLATE COURT OF ILLINOIS

                                              THIRD DISTRICT

                                                     2018

     THE PEOPLE OF THE STATE OF                         )       Appeal from the Circuit Court
     ILLINOIS,                                          )       of the 12th Judicial Circuit,
                                                        )       Will County, Illinois.
            Plaintiff-Appellee,                         )
                                                        )       Appeal No. 3-15-0189
            v. 	                                        )       Circuit No. 01-CF-664

                                                        )

     ASHANTI LUSBY,                                     )       The Honorable

                                                        )       David Martin Carlson,
            Defendant-Appellant.                        )       Judge, presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion. 

           Justice O’Brien concurred in the judgment and opinion. 

           Presiding Justice Carter dissented, with opinion. 

     _____________________________________________________________________________

                                                  OPINION


¶1          Petitioner Ashanti Lusby was convicted of first degree murder, aggravated criminal

     sexual assault, and home invasion. He was 16 years old at the time the offenses occurred. He

     filed a direct appeal and, subsequently, a pro se postconviction petition, which were both denied

     by this court. He later filed a motion for leave to file a successive postconviction petition,

     arguing that his de facto life sentence violated his eighth amendment rights because the trial

     court did not consider his age and its attendant characteristics in accordance with Miller v.

     Alabama, 567 U.S. 460 (2012). The State requested that the trial court allow it to file objections
     to Lusby’s motion, which the court granted. The State also argued its objections before the court.

     Neither Lusby nor his defense attorney was present for the State’s arguments. The trial court

     denied Lusby’s motion and he appealed, arguing that (1) the trial court erred when it denied his

     motion for leave to file a successive postconviction petition, (2) the trial court erred when it

     allowed the State to file and argue objections to his motion, and (3) he is entitled to a new judge

     on remand. We reverse and remand this case for a new sentencing hearing.

¶2                                                  FACTS

¶3          On February 9, 1996, a woman was found dead in her home. She had multiple rectal and

     vaginal lacerations, knife wounds to her neck, and a gunshot wound above her right eye. Lusby,

     who was 16 years old at the time of the offense, was charged in a 15-count indictment for first

     degree murder, aggravated criminal sexual assault, and home invasion for the events that

     occurred on February 9.

¶4          The jury found Lusby guilty of all 15 charges. In October 2002, Lusby filed a motion for

     a new trial, which the trial court denied. In March 2003, a sentencing hearing was held. A

     presentence investigation report (PSI) was submitted to the court. The report stated that Lusby

     was born in Chicago, Illinois, on April 11, 1979. He moved to Joliet, Illinois, when he was 10

     years old. He went back to Chicago for one year when he was 14 years old but eventually

     returned to Joliet. Lusby was single and had two children. He received his GED in the Illinois

     Youth Center. The last grade he completed was the tenth grade because he was expelled for

     “gang banging.” He had used marijuana, phencyclidine (PCP), and alcohol in the past and had

     used marijuana every day but denied that he was currently using any drugs or alcohol. He claims

     that he completed drug treatment, but this could not be confirmed. He did not have any current

     mental health issues. Lusby had been convicted of the following offenses: (1) 1994 aggravated


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       discharge of a firearm (juvenile), (2) 1998 robbery, (3) 2001 resisting a peace officer, and

       (4) 2001 aggravated battery. The State noted that Lusby also had a 1998 misdemeanor conviction

       for attempting to obstruct justice. Lusby’s probation had been revoked on the robbery conviction

       in March 2000. Lusby stated that he had a good relationship with his mother and father and that

       they visited him often in jail although detention facility records show that Lusby’s father never

       visited him. He has two sisters, both of whom have theft convictions. The probation officer

       recommended that “defendant may benefit from counseling to control his violent tendencies.”

       The State attached 21 victim impact letters as an addendum to the PSI. Lusby objected, arguing

       that the letters were prejudicial. The trial court stated, “I will base the decision on the facts of the

       case and not on these letters.”

¶5             The State presented two witnesses at the sentencing hearing. Robert Miller testified that,

       in July 2001, he was an inmate in the Will County jail. While Miller was using the phone, Lusby

       approached Miller, put his hand on the receiver, and stated Miller had cut into the line waiting to

       use the phone. Miller and Lusby were arguing when a deputy interjected, stating that Miller did

       not cut and commanding Lusby to wait in line. After Miller completed his call, he got into

       another altercation with Lusby. Lusby “called him into the gym,” and Miller followed. Once

       there, Lusby hit Miller in the face causing Miller a broken bone under his left eye, a broken nose,

       and a cut on his lip requiring three stitches. Jean Happ testified concerning her victim impact

       statement, which was admitted into evidence. Defense counsel did not present any evidence or

       witnesses.

¶ 6	           Ultimately, Lusby’s 15 convictions were reduced to three: one count for first degree

       murder, one for aggravated sexual assault, and one for home invasion. The State requested that

       the other first degree murder counts (I, III through XIII) merge with count II (first degree murder


                                                          3

     for intentional killing with exceptional brutal and heinous behavior indicative of wanton cruelty).

     The State noted that the trial court may enhance Lusby’s sentence on count II to a minimum of

     60 years and a maximum of 100 years pursuant to section 5-8-2 of the Unified Code of

     Corrections (730 ILCS 5/5-8-2 (West 2002)). The State also asked the court to merge the other

     aggravated sexual assault convictions (counts IX, XI, XII) with count X (aggravated sexual

     assault) and the home invasion convictions in counts XIV and XV with count XIII (home

     invasion). It stated that the trial court may sentence Lusby to a maximum of 30 years on counts

     X and XIII and that both counts are to run consecutively to the first degree murder charge.

¶7          During the trial court’s oral pronouncement, it stated:

                            “THE COURT: All right. Well, this is a case that is a very

                    difficult case from the standpoint of the facts of the injuries and of

                    the method of murder of the victim. It certain—certainly the

                    defendant’s age is a factor at the very least to the extent that he is

                    not eligible for the imposition of capital punishment based solely

                    because of his age, because but for his age at under the age of 18,

                    certainly this—these are the type of things, let me put it that way,

                    that I have seen that all the attorneys that are in this trial have seen

                    as facts that would—that could be considered capital punishment

                    activities.

                            But I cannot, I cannot ignore the fact that Miss Happ was

                    terrorized and sexually assaulted and humiliated and executed in

                    her own home, and this was clearly a depraved act by you, Mr.

                    Lusby, and it shows absolutely no respect for human life. It is


                                                       4

ironic to me I guess that this Miss Happ was working to provide a

positive influence on children in the area and the area that you

lived in and even children that were—would be yours or your

nieces or nephews or other family members might have been

influenced positively by this woman, but your actions saw that

didn’t happen.

        So it is very difficult for me to consider any leniency in this

case. It is very difficult for me to see any factors in mitigation. I

have gone through the section on mitigation. There are no factors

in mitigation that apply.

        I have gone through the factors in aggravation and those

factors there are many that apply, and I sincerely believe that the

appropriate sentence is a sentence that will see that this does not

occur outside of the Department of Corrections again. This is a

choice that you made at a young age and I know that choices,

youthful choices can be—are not, you know, sometimes are [sic]

sometimes in very very poor judgment, but this is not one that can

be taken back, and this is not one that can be considered minor,

and this is not one that can be considered for anything but setting

your future in the Department of Corrections.

        From what I’ve seen here from everything that I have seen

and heard in this trial this is a life you chose, a life of carrying

weapons, a life of showing no respect for human life, and I am not


                                    5

                       at all uncomfortable in imposing the maximum sentence on the

                       murder of 100 years. The consecutive sentence on the other two

                       Class X offenses again the manner and method of this crime makes

                       me convinced that it is not for me to minimize it in any way, and as

                       a consequence I will impose an additional consecutive 30 years on

                       each of these offenses. So that is the order of the Court. Certainly

                       you have every right to appeal the sentence.”

¶8              Thus, the court sentenced Lusby to 100 years’ imprisonment on the first degree murder

     conviction to be followed by concurrent 30 year sentences for aggravated criminal sexual assault

     and home invasion, totaling 130 years’ imprisonment. Lusby filed a motion to reconsider,

     arguing that the trial court failed to consider Lusby’s age, potential for rehabilitation, and

     potential to be restored to useful citizenship during sentencing. The trial court denied the motion,

     stating:

                              “THE COURT: All right. I tink [sic] these motions are

                       required prior to a thorough appellate review. It’s always difficult

                       for the Trial Judge because you prepare yourself for sentencing

                       like this, you sit down and you look at everything. You look at the

                       law and look at the sentencing Code, because it’s confusing, and

                       you try to fashion the sentence appropriate and consisten [sic] with

                       the sentencing Code and appropriate to the facts. I believe I felt

                       comfortable with my sentence at the time. I believe I followed the

                       law as I understood it and took into account all the factors both in




                                                         6

                      aggravation and in mitigation that apply here. So show the motion

                      to reconsider sentence presented and argued and denied.”

¶9            Lusby filed a direct appeal to this court. People v. Lusby, 353 Ill. App. 3d 1109 (2004)

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

       decision, and our supreme court denied Lusby’s petition for leave to appeal in March 2005. Id.,

       appeal denied, 214 Ill. 2d 544 (2005).

¶ 10          In September 2005, Lusby filed a pro se postconviction petition. Lusby claimed that his

       right to due process was violated when he was required to wear an electric stun belt in the

       presence of the jury and that defense counsel rendered ineffective assistance of counsel when it

       failed to object to the use of the belt. The trial court dismissed the petition, and Lusby appealed.

       This court affirmed the trial court’s dismissal. People v. Lusby, 377 Ill. App. 3d 1156 (2007)

       (table) (unpublished order under Supreme Court Rule 23). Our supreme court denied his petition

       for leave to appeal in September 2009. Id., appeal denied, 233 Ill. 2d 582 (2009).

¶ 11          In November 2014, Lusby filed a pro se motion for leave to file a successive

       postconviction petition. In the motion, he argued that his de facto life sentence violated his

       eighth amendment rights. He claimed that he had met the cause and prejudice requirements to

       file a successive postconviction petition under section 122-1(f) of the Post-Conviction Hearing

       Act (725 ILCS 5/122-1(f) (West 2014)) because (1) the ruling in Miller, 567 U.S. 460, which

       established that a court must consider a juvenile’s age and its attendant characteristics before

       sentencing him to mandatory life imprisonment, was issued after Lusby’s trial and initial

       postconviction petition, and (2) Lusby did not have an opportunity to present mitigating evidence

       so the trial court could consider his age and the possible impact of his age-related factors on his

       commission of the offense.


                                                         7

¶ 12          The State requested a 35-day extension to file objections to Lusby’s motion, which the

       trial court allowed. In its objections, the State alleged that Miller did not apply to this case

       because the Court in Miller addressed mandatory life sentences, not de facto life sentences. It

       also argued that our supreme court in People v. Davis, 2014 IL 115595, ruled that Miller does

       not apply to a discretionary life sentence. It further alleged that the court properly considered all

       the evidence before making its findings.

¶ 13          In January 2015, without the presence of Lusby or his defense attorney, the State argued

       its objections before the court, and the court denied Lusby’s petition, stating:

                              “THE COURT: All right[.] Show that I have reviewed all

                      the pleadings, I have reviewed the Court file, and I will find that

                      the request for a second—I guess it’s a second post-conviction

                      petition to be filed is denied based upon the law[.]”

       Lusby appealed.
¶ 14                                                ANALYSIS

¶ 15                  I. Motion for Leave to File a Successive Postconviction Petition

¶ 16          Lusby argues that the trial court erred when it denied his motion for leave to file a

       successive postconviction petition. Specifically, Lusby claims that he had met the requisite cause

       and prejudice test to file a successive petition because (1) he could not assert his claim until the

       Supreme Court’s decision in Miller, 567 U.S. 460, and our supreme court’s decision in Davis,

       2014 IL 115595, and (2) the trial court failed to consider his age and its attendant characteristics

       during sentencing and, therefore, violated his eighth amendment rights.

¶ 17          Citing People v. Guerrero, 2012 IL 112020, ¶ 20, the State argues that the lack of

       precedent on a particular position does not constitute “cause” because Lusby must raise any

       issues to preserve it for review even when the law is unfavorable to his position. It further claims
                                                          8

       that Lusby did not show “cause” because there were no external factors that impeded Lusby’s

       ability to raise the claim during his initial postconviction petition, as he raised the same argument

       in his motion to reconsider. Also, it contends that Lusby did not show prejudice because (1) the

       record shows that the trial court considered his age during sentencing; (2) regardless of whether

       the trial court considered Lusby’s age, his sentence “reflects irreparable corruption” and the trial

       court properly sentenced him to 130 years; and (3) Miller addresses mandatory life sentences

       whereas this case involves a de facto life sentence.

¶ 18          Because the parties dispute whether Miller applies to this case, we first consider its

       applicability. The eighth amendment prohibits the imposition of cruel and unusual punishment

       and applies to the states through the fourteenth amendment. Davis, 2014 IL 115595, ¶ 18 (citing

       Roper v. Simmons, 543 U.S. 551, 560 (2005)). “The eighth amendment’s ban on excessive

       sanctions flows from the basic principle that criminal punishment should be graduated and

       proportioned to both the offender and the offense.” Id. “To determine whether a punishment is so

       disproportionate as to be cruel and unusual, a court must look beyond history to the evolving

       standards of decency that mark the progress of a maturing society.” (Internal quotation marks

       omitted.) Id.

¶ 19          In Miller, the defendant was convicted of murder and sentenced to mandatory life

       imprisonment without parole. The Supreme Court determined that a sentence of life without

       parole for a juvenile who committed any offense, including homicide, without the court’s

       consideration of the juvenile’s age or its attendant characteristics, violates the eighth amendment.

       Miller, 567 U.S. at 489. Relying on Roper and Graham, the Court reasoned that youth

       characteristics “diminish the penological justifications for imposing the harshest sentences on

       juvenile offenders.” Id. at 472; also see Roper, 543 U.S. 551 (holding that the eighth amendment


                                                        9

       bars capital punishment of juveniles); Graham v. Florida, 560 U.S. 48 (2010) (finding that the

       eighth amendment prohibits a sentence of life without parole for juveniles who commit

       nonhomicide offenses). It declined to consider whether the eighth amendment requires a

       “categorical bar on life without parole for juveniles.” Miller, 567 U.S. at 479. Instead, the Court

       found that a court has the ability to sentence a juvenile to life in prison without parole but it must

       take into consideration “how children are different, and how those differences counsel against

       irrevocably sentencing them to a lifetime in prison” beforehand. Id. at 480.

¶ 20           Recently, our supreme court in People v. Holman, 2017 IL 120655, held that Miller

       applies to cases when a defendant is sentenced to a discretionary life sentence. It reasoned that a

       juvenile’s diminished culpability is “neither crime-nor sentence-specific” and that discretionary

       life sentences for juveniles are “disproportionate and violate the eighth amendment, unless the

       trial court considers youth and its attendant characteristics.” Id. ¶ 40.

¶ 21           Lusby’s 130-year sentence is a de facto life sentence. See People v. Smolley, 2018 IL

       App (3d) 150577, ¶ 22 (15-year-old defendant’s 65-year sentence constituted de facto life

       sentence); People v. Buffer, 2017 IL App (1st) 142931, ¶ 62 (16-year-old defendant’s 50-year

       sentence constituted de facto life sentence); People v. Ortiz, 2016 IL App (1st) 133294, ¶ 24

       (defendant’s 60-year sentence constituted de facto life sentence). Moreover, our supreme court in

       Holman established that Miller is also applicable to a discretionary life sentence. Therefore, we

       find that Miller applies in this case.

¶ 22           Next, we consider whether Lusby has met the cause and prejudice test although Miller

       was decided after his trial and the filing of his initial postconviction petition. The Post-

       Conviction Hearing Act allows the filing of only one postconviction petition without leave of the

       court. 725 ILCS 5/122-1(f) (West 2016). “[A] defendant faces immense procedural default


                                                         10 

       hurdles when bringing a successive postconviction petition.” Davis, 2014 IL 115595, ¶ 14.

       Because it interferes with the finality of criminal litigation, these hurdles are lowered only in

       limited circumstances. Id. “One such basis for relaxing the bar against successive postconviction

       petitions is where a petitioner can establish ‘cause and prejudice’ for the failure to raise the claim

       earlier.” Id.; 725 ILCS 5/122-1(f) (West 2016). Cause refers to some objective factor external to

       the defense that impeded counsel’s efforts to raise the claim in an earlier proceeding. Davis,

       2014 IL 115595, ¶ 14. Prejudice refers to a claimed constitutional error that so infected the entire

       trial that the resulting conviction or sentence violates due process. Id. “Both prongs must be

       satisfied for the defendant to prevail.” Id.

¶ 23           Our supreme court in Davis determined that the Court’s decision in Miller constitutes

       “cause” under section 122-1(f) because it was not available to counsel earlier. Id. ¶ 42. Here,

       Miller was not decided until seven years after Lusby filed his initial postconviction petition.

       Miller was not available to Lusby’s counsel at the time of his sentencing or at the time he filed

       his initial postconviction petition.

¶ 24           The State argues that Lusby did not show “cause” because he previously argued that the

       trial court failed to consider his age in his motion to reconsider. Lusby did argue that the trial

       court failed to consider his age during sentencing in his motion to reconsider. However, Lusby is

       specifically arguing that Miller, which requires a court to consider a juvenile’s age and its

       attendant characteristics before sentencing him to a life sentence, was applicable to this case and

       should be applied retroactively. Defense counsel did not have an opportunity to present this

       argument because Miller was decided after he filed his initial postconviction petition. See People

       v. Williams, 2018 IL App (1st) 151373, ¶ 13 (rejecting the State’s res judicata argument because




                                                         11 

       Miller was decided 17 years after the defendant’s conviction and sentence). Therefore, we find

       that Lusby met the “cause” prong of the cause and prejudice test.

¶ 25           Lusby claims that he also met the “prejudice” prong under the cause and prejudice test

       and requests that this court remand this case for a new sentencing hearing rather than proceed to

       the second-stage postconviction proceedings. Davis, 2014 IL 115595, and Holman, 2017 IL

       120655, provide guidance on this issue. In Davis, the defendant fatally shot two people. Davis,

       2014 IL 115595, ¶ 4. He was convicted of murder and sentenced to natural life imprisonment

       without the possibility of parole. Id. ¶ 5. The First District determined that Miller applied

       retroactively on postconviction review and remanded the defendant’s case for a new sentencing

       hearing, and the State appealed. Id. ¶ 10. The supreme court noted that a new rule is not applied

       retroactively to cases on collateral review unless (1) it is a new substantive rule or (2) it is a rule

       “ ‘implicating the fundamental fairness and accuracy of the criminal proceeding.’ ” Id. ¶ 36

       (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)). Relying on People v. Morfin, 2012 IL

       App (1st) 103568, the court explained that the Supreme Court’s ruling in Miller created a new

       substantive law because, although Miller actually mandates a new procedure by requiring a court

       to consider a juvenile’s age during sentencing, the rule “is the result of a substantive change in

       the law that prohibits mandatory life-without-parole sentencing.” (Internal quotation marks

       omitted.) Davis, 2014 IL 115595, ¶ 39. Therefore, the court determined that Miller applied

       retroactively. It also held that, based on Miller’s substantive rule that prohibits mandatory life

       without parole of juveniles, Miller constitutes prejudice under the cause and prejudice test

       because “it retroactively applies to defendant’s sentencing hearing.” Id. ¶ 42.

¶ 26           In Holman, the defendant argued that the trial court erred when it denied his motion for

       leave to file a successive postconviction petition. Holman, 2017 IL 120655, ¶ 20. On appeal, the


                                                         12 

defendant argued that his discretionary life sentence was unconstitutional under Miller. Id. Our

supreme court determined that a trial court must consider a juvenile’s age-related characteristics

as specified in Miller because “age is not a chronological fact but a multifaceted set of attributes

that carry constitutional significance.” Id. ¶¶ 43-44. These characteristics include:

       “(1) the juvenile defendant’s chronological age at the time of the offense and any

       evidence of his particular immaturity, impetuosity, and failure to appreciate risks and

       consequences; (2) the juvenile defendant’s family and home environment; (3) the

       juvenile defendant’s degree of participation in the homicide and any evidence of familial

       or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence,

       including his inability to deal with police officers or prosecutors and his incapacity to

       assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Id.

       ¶ 46.

The court reviewed the trial record and held that the defendant’s sentence was constitutional. Id.

¶¶ 47, 50. It reasoned that (1) the trial court’s statement that “it found ‘no mitigating factors’ ”

(id. ¶ 49) was about the 12 factors enumerated in section 5-5-3.1 of the Unified Code of

Corrections (730 ILCS 5/5-5-3.1 (West 2016)) and not about the Miller factors, (2) the trial court

did not have any evidence related to the statutory factors in mitigation enumerated in section 5-5­

3.1, and (3) the defendant intentionally decided not to present any mitigating evidence despite his

opportunity to do so. The court further found that the trial court “explicitly stated that it

considered the trial evidence and the PSI” and that the minimal evidence related to the Miller

factors did not undermine the “significant evidence” related to factors in aggravation. Holman,

2017 IL 120655, ¶¶ 48-50. It concluded that the trial court properly denied his motion for leave

to file a successive postconviction petition. Id. ¶ 50.


                                                  13 

¶ 27           Here, the trial court mentions age in two instances: (1) when the court stated that Lusby is

        not eligible for capital punishment because of his age, and (2) when the court stated, “This is a

        choice that you made at a young age and I know that choices, youthful choices can be—are not,

        you know, sometimes are [sic] sometimes in very very poor judgment, but this is not one that can

        be taken back, and this is not one that can be considered minor, and this is not one that can be

        considered for anything but setting your future in the Department of Corrections.” Based on the

        ruling, the trial court did not address Lusby’s age-related characteristics; rather, it gave a

        generalized statement about youth and their poor judgment. Unlike the trial court in Holman,

        there is no indication in the record that the trial court considered the evidence of Lusby’s

        “immaturity, impetuosity, and failure to appreciate risks and consequences” or family

        environment in the PSI. The PSI included various incidences of such evidence including that

        (1) Lusby was expelled from the tenth grade for “gang banging”; (2) he had used marijuana,

        PCP, and alcohol; (3) he had a lengthy criminal history including his 1994 aggravated discharge

        of a firearm juvenile conviction; (4) his sisters also had a criminal history; and (5) the probation

        officer had recommended Lusby attend counseling to control his “violent tendencies.”

¶ 28	          The trial court also stated that there were no factors in mitigation, and similar to Holman,

        we find that the trial court was refering to the factors enumerated in section 5-5-3.1. However,

        unlike Holman, the trial court did not “explicitly” state that it considered the evidence in Lusby’s

        PSI during sentencing, and thus, we cannot conclude that the trial court considered any evidence

        related to the Miller factors. Therefore, we find that Lusby was prejudiced because Miller is

        applied retroactively and the trial court did not consider his age and the attendant characteristics

        described in Miller before sentencing him to de facto life.




                                                          14 

¶ 29          We note that the crime for which Lusby was convicted and sentenced was heinous. Under

       Miller, a trial court may sentence “the rare juvenile offender whose crime reflects irreparable

       corruption” to life without parole. Miller, 567 U.S. at 479-80. However, “[t]he court may make

       that decision only after considering the defendant’s youth and its attendant characteristics.”

       Holman, 2017 IL 120655, ¶ 46. Generally, a case will advance to the three-stage process for

       reviewing postconviction petitions when the court determines that the petitioner has satisfied the

       cause and prejudice test. See People v. Bailey, 2017 IL 121450, ¶ 26. Because we hold that

       Lusby’s sentence violated the eighth amendment, we remand this case for resentencing. See

       Smolley, 2018 IL App (3d) 150577, ¶ 21 (“[w]here the record does not indicate that the trial

       court considered the defendant’s characteristics of youth before sentencing a juvenile to a

       de facto life sentence, the case should be remanded for a new sentencing hearing”); People v.

       Warren, 2016 IL App (1st) 090884-C, ¶ 51 (“Because defendant’s sentence is unconstitutional,

       he is entitled to a new sentencing hearing. There is no need for further postconviction

       proceedings on this issue.”). This issue is dispositive of this appeal. However, we address the

       remaining issues as they may occur on rehearing.

¶ 30                                         II. State’s Objections

¶ 31          Lusby argues that the trial court erred when it allowed the State to file and argue

       objections to his motion for leave to file a successive postconviction petition. Both parties

       contend that the same issue is addressed in People v. Bailey, 2016 IL App (3d) 140207 (Bailey I),

       which was currently pending before the supreme court at the time Lusby filed this appeal. Since

       then, the supreme court made its decision in People v. Bailey, 2017 IL 121450 (Bailey II). Based

       on the supreme court’s ruling in Bailey II, the State concedes that the trial court erred when it

       allowed the objections.


                                                        15 

¶ 32          In Bailey II, the court held that the State is not permitted to participate at the cause and

       prejudice stage of successive postconviction proceedings because (1) the court is statutorily

       required to make an independent determination of whether the petitioner met the requisite of

       cause and prejudice, (2) there is no provision in the statute that allows an evidentiary hearing on

       the issue of cause and prejudice, and (3) it would be fundamentally unfair for the State to

       participate as “successive postconviction petitions are typically filed pro se and the Act makes no

       provision for a defendant to be entitled to counsel until after a postconviction petition is

       docketed.” Id. ¶¶ 24, 27.

¶ 33          Pursuant to Bailey II, the State improperly filed and argued objections to Lusby’s motion.

       Therefore, the trial court erred when it allowed the objections.

¶ 34                                        III. Substitution of Judge

¶ 35          Lastly, Lusby requests that this case be heard before a different judge on remand. “There

       is no absolute right to a substitution of judge at a post-conviction proceeding. [Citation.] Rather,

       the same judge who presided over the defendant’s trial should hear his post-conviction petition,

       unless it is shown that the defendant would be substantially prejudiced.” People v. Hall, 157 Ill.

       2d 324, 331 (1993). The trial court erred when it denied Lusby’s motion despite the supreme

       court’s ruling in Davis that Miller satisfies the requisite cause and prejudice test under

       section 122-1(f) of the Post-Conviction Hearing Act. It also improperly allowed the State to file

       and argue objections to Lusby’s motion. However, we do not see any malicious intent in the trial

       court’s errors and there is “no indication that the court will not follow the law on remand.”

       People v. White, 2017 IL App (1st) 142358, ¶ 43. Therefore, we deny Lusby’s request for a new

       judge on remand.

¶ 36                                             CONCLUSION


                                                        16 

¶ 37           The judgment of the circuit court of Will County is reversed and remanded.

¶ 38           Reversed and remanded.

¶ 39           PRESIDING JUSTICE CARTER, dissenting.

¶ 40           I respectfully dissent from the majority’s decision in the present case. I would find that

       defendant has failed to establish prejudice under the cause and prejudice test. In my opinion, the

       trial court’s comments show that it considered defendant’s youth and its attendant circumstances

       in sentencing defendant. The trial court even considered those factors a second time at the

       hearing on the motion to reconsider sentence when defendant again raised the issue of his age

       and asserted that the trial court had failed to consider his age, his potential for rehabilitation, and

       his potential to be restored to useful citizenship.

¶ 41           In Holman, our supreme court recognized that “a juvenile defendant may be sentenced to

       life imprisonment without parole, but only if the trial court determines that the defendant’s

       conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption

       beyond the possibility of rehabilitation.” See Holman, 2017 IL 120655, ¶ 46. Defendant in the

       instant case sexually assaulted and then executed the victim, a 27-year-old school teacher, in her

       own home. When the victim was later discovered, she had multiple rectal and vaginal

       lacerations, knife wounds to her neck, and a gunshot wound above her right eye. Defendant’s

       semen was found in the victim’s rectum and vagina. As the trial court’s comments in sentencing

       indicate, the trial court determined that the horrendous conduct of this defendant showed

       irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility

       of rehabilitation. See id. I would find, therefore, that defendant’s sentence passes constitutional

       standards. See id. ¶¶ 46-50. I cannot join the majority in its conclusion that the trial court failed

       to consider the required information, much of which was contained in the PSI, merely because


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the trial court did not expressly state that it had considered the PSI. I would, thus, affirm the trial

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




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