                                                                       Digitally signed by
                                                                       Reporter of
                                                                       Decisions
                                                                       Reason: I attest to
                      Illinois Official Reports                        the accuracy and
                                                                       integrity of this
                                                                       document
                               Appellate Court                         Date: 2019.10.08
                                                                       10:16:36 -05'00'



                  People v. Hoover, 2019 IL App (2d) 170070



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            MICHAEL D. HOOVER, Defendant-Appellant.



District & No.     Second District
                   Docket No. 2-17-0070



Filed              June 12, 2019



Decision Under     Appeal from the Circuit Court of Stephenson County, No. 93-CF-135;
Review             the Hon. John F. Joyce, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Peter A. Carusona, and Jay Wiegman, of State
Appeal             Appellate Defender’s Office, of Ottawa, for appellant.

                   Kwame Raoul, Attorney General, of Chicago (David L. Franklin,
                   Solicitor General, and Michael M. Glick and Erin M. O’Connell,
                   Assistant Attorneys General, of counsel), for the People.



Panel              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.
¶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’s 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’s 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.
¶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.



                                                  -2-
¶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.
¶ 10        In mitigation, defendant noted that he had not been involved in inflicting any of Peters’s
       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 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].”



                                                  -3-
¶ 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.
       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,
       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


                                                   -4-
       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.
¶ 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
       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

                                                   -5-
       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 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
                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.



                                                     -6-
¶ 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 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.




                                                   -7-
¶ 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.
¶ 44       We affirm the judgment of the circuit court of Stephenson County.

¶ 45      Affirmed.




                                                    -8-
