                                       2019 IL App (5th) 150192
            NOTICE
 Decision filed 07/02/19. The
 text of this decision may be                NO. 5-15-0192
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of
                                                IN THE
 the same.
                                   APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellee,                       )     Washington County.
                                                )
v.                                              )     No. 00-CF-67
                                                )
LEONARD B. PARKER,                              )     Honorable
                                                )     Daniel J. Emge,
      Defendant-Appellant.                      )     Judge, presiding.
______________________________________________________________________________

         JUSTICE WELCH delivered the judgment of the court, with opinion.
         Presiding Justice Overstreet and Justice Chapman concurred in the judgment and opinion.

                                            OPINION

¶1       The defendant, Leonard Parker, appeals the denial by the circuit court of Washington

County of his motion for leave to file a successive petition for postconviction relief. For the

following reasons, we reverse and remand.

¶2       On September 12, 2000, the State charged the defendant by amended information with

four counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 2000)) stemming from the

stabbing of the victim, by a codefendant, during the course of a robbery and/or residential

burglary. The defendant was charged under a theory of accountability. He was 16 years old at the

time of his arrest.

¶3       On October 26, 2000, the defendant entered a negotiated plea of guilty to count II of the

amended information, which charged him with first degree murder during the course of a

robbery. In exchange for his guilty plea, the State agreed to ask for a sentence of imprisonment
not to exceed 50 years and to dismiss the remaining three counts of first degree murder. 1 At the

guilty plea hearing, the trial court admonished the defendant that the possible sentencing range

was 20 to 60 years’ imprisonment or, under certain circumstances, life imprisonment. The court

accepted the defendant’s guilty plea and found that it was knowingly and voluntarily made.

¶4     On December 14, 2000, the trial court held a sentencing hearing. During the hearing, the

court advised the defendant that, absent the plea deal, he could have been sentenced to life

imprisonment or 20 to 60 years’ imprisonment. In announcing the sentence, the court, noting that

the legislature had increased the penalties for first degree murder, explained that the increase in

penalties was a fairly clear indication that, by allowing individuals of the defendant’s age to be

charged with first degree murder, everyone should be held responsible and accountable. The

court further explained that the penalties should be increased with a view toward deterring the

commission of the offense. Regarding the aggravating factors, the court considered the

defendant’s previous criminal history and the deterrent effect of a lengthy sentence. As for the

factors in mitigation, the court considered the defendant’s age, the fact that his conduct was

induced or facilitated by his sister, who was older, that his conduct was the result of

circumstances unlikely to recur, and the fact that he had a child. The court also considered the

fact that he was using marijuana on the day of the incident. The court then sentenced him to 35

years’ imprisonment and ordered him to pay a $10,000 fine and court costs.

¶5     Thereafter, on January 10, 2001, the defendant filed a motion for leave to withdraw his

guilty plea, contending that he entered his guilty plea without sufficient understanding and

contemplation of the serious nature of the consequences of entering a plea, that he felt pressured

to enter his guilty plea by the advice that he received from his parents, and that his counsel


       1
        The defendant contends that the reference to the three dismissed charges is a distraction where
only one death occurred.
                                                 -2­
briefly discussed the plea offer with him in the hallway of the courthouse while he was shackled

and under guard, thus allowing him no privacy or sufficient time to discuss the offer. Counsel

also filed a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. Nov. 1,

2000). In addition, the defendant filed a motion to reconsider his sentence, arguing that his

sentence was excessive. At the February 23, 2001, hearing on the motions, the defendant

withdrew his motion to withdraw his guilty plea after being admonished by the trial court that

withdrawing his guilty plea would result in him being tried on all four counts of first degree

murder and that, if found guilty, he could receive anywhere from 20 to 80 years’ imprisonment

or life imprisonment.

¶6     Counsel then proceeded on the motion to reconsider the defendant’s sentence. After

hearing the defendant’s testimony and the arguments of counsel, the trial court denied the motion

to reconsider sentence. The defendant appealed his sentence, and this court dismissed the appeal

because the defendant had abandoned his motion to withdraw his guilty plea and, thus, had failed

to comply with the requirements of Illinois Supreme Court Rule 604(d) (eff. Nov. 1, 2000),

which instructs that a defendant who entered into a negotiated guilty plea could not challenge his

sentence without filing a motion to withdraw the guilty plea. People v. Parker, No. 5-01-0129

(2001) (unpublished order under Illinois Supreme Court Rule 23).

¶7     Almost nine years later, on October 28, 2010, the defendant filed a pro se petition for

postconviction relief, raising four claims of error in the proceedings leading to his conviction.

The petition addressed the delay in filing, seeking to justify it as not based on his own culpable

negligence. In his pro se petition, the defendant contended that he received ineffective assistance

of counsel based on newly discovered evidence that the police had ignored his parents’ request to

not question him until his father could be present, that his counsel did not inquire as to whether

he was questioned outside of his parents’ presence, that he was coerced into entering a guilty
                                             -3­
plea by his counsel and parents where his plea was based on a misrepresentation of the possible

sentencing range (counsel had allegedly told him that he could receive a 20-year sentence for

each count of first degree murder and that the maximum was a death sentence), and that he was

coerced by his counsel to withdraw his motion to withdraw his guilty plea.

¶8     On December 13, 2010, the trial court found that some of the defendant’s claims were not

frivolous and patently without merit and advanced the petition to the second stage of

postconviction proceedings. See 725 ILCS 5/122-2.1(b) (West 2010). On March 31, 2011, the

State filed a motion to dismiss the petition for postconviction relief for the reason that it was

filed beyond the time allowed by section 122-1(c) of the Post-Conviction Hearing Act (Act),

which sets time limits by which the petitions must be filed “unless the petitioner alleges facts

showing that the delay was not due to his or her culpable negligence.” Id. § 122-1(c). On July 14,

2011, the trial court dismissed the defendant’s postconviction petition, as it was untimely. The

defendant appealed the dismissal of his postconviction petition, and this court affirmed that

dismissal. People v. Parker, 2013 IL App (5th) 110298-U.

¶9     On April 6, 2015, the defendant filed a pro se motion for leave to file a successive

petition for postconviction relief. In the attached petition, he asserted, among other things, that

his 35-year sentence, without consideration of his youth and its attendant characteristics,

amounted to a de facto life sentence in violation of the eighth amendment of the United States

Constitution (U.S. Const., amend. VIII) as set forth in the United States Supreme Court’s

decision in Miller v. Alabama, 567 U.S. 460 (2012). On April 24, 2015, the trial court entered an

order, denying the defendant leave to file a successive postconviction petition. With regard to the

Miller claim, the court noted that Miller stood for the proposition that a mandatory life sentence

for a juvenile, where a trial court had no discretion to consider mitigating factors, violated the

eighth amendment. The court found that Miller was inapplicable because the defendant did not
                                           -4­
receive a mandatory life sentence. The court further concluded that the defendant’s claim that his

35-year sentence amounted to a de facto life sentence was frivolous because Illinois courts had

upheld life sentences for juveniles as constitutional where the trial court had discretion to

consider mitigating factors. See People v. Croft, 2013 IL App (1st) 121473, ¶ 14. In addition, the

court noted that the defendant’s age was considered as a mitigating factor at his sentencing. The

defendant appeals the denial of his motion for leave to file a successive postconviction petition.

¶ 10   Initially, we have ordered taken with the case the defendant’s motion to cite additional

authority, requesting that we grant him leave to cite People v. Buffer, 2019 IL 122327, an Illinois

Supreme Court case that was filed after the parties had already submitted their briefs. As this

case is dispositive to an issue the defendant raised on appeal, we grant his motion to cite this

additional authority.

¶ 11   In June 2012, after the defendant had filed his initial postconviction petition, the United

States Supreme Court decided Miller, which held that imposing mandatory life sentences without

parole for juvenile offenders, without considering the offender’s youth and its attendant

characteristics, violated the eighth amendment. Miller, 567 U.S. 460. Under Miller, a minor

could still be sentenced to natural-life imprisonment without parole as long as the sentence was

at the trial court’s discretion rather than mandatory. People v. Davis, 2014 IL 115595, ¶ 43.

¶ 12   The Court later clarified Miller’s holding in Montgomery v. Louisiana, noting that Miller

“drew a line between children whose crimes reflect transient immaturity and those rare children

whose crimes reflect irreparable corruption.” Montgomery v. Louisiana, 577 U.S. ___, ___, 136

S. Ct. 718, 734 (2016). Miller held that sentencing a child to life without parole is excessive for

all but “the rare juvenile offender whose crime reflects irreparable corruption.” (Internal

quotation marks omitted.) Id. at ___, 136 S. Ct. at 734. Therefore, Miller required a sentencing


                                               -5­
court to consider a juvenile offender’s youth and its attendant characteristics before determining

that life without parole is a proportionate sentence. Id. at ___, 136 S. Ct. at 734.

¶ 13   Thereafter, the Illinois Supreme Court decided People v. Holman, which determined

whether the holdings in Miller and Montgomery were limited to only mandatory life sentences.

People v. Holman, 2017 IL 120655, ¶ 40. There, our supreme court concluded that life sentences

for juvenile defendants, whether mandatory or discretionary, were disproportionate and violated

the eighth amendment unless the trial court considered the offender’s youth and its attendant

circumstances. Id. Thus, Holman extended Miller and Montgomery to discretionary sentences of

life without parole for juvenile offenders. Id.

¶ 14   Subsequently, in People v. Reyes, our supreme court further extended Miller’s holding by

concluding that sentencing a juvenile offender to a mandatory term of years that was the

functional equivalent of life without the possibility of parole (de facto life sentence) constituted

cruel and unusual punishment in violation of the eighth amendment. People v. Reyes, 2016 IL

119271, ¶ 9.

¶ 15   In April 2019, after the submission of briefs and oral argument in this appeal, our

supreme court decided Buffer, 2019 IL 122327. There, the defendant, who had received a 50­

year prison sentence for a crime that he committed when he was 16 years old, filed a

postconviction petition asserting that his sentence violated the eighth amendment because it

amounted to a de facto life sentence. Id. ¶¶ 1, 7. Our supreme court first noted that to prevail on a

claim based on Miller and its progeny, a juvenile offender must show that he was subject to a life

sentence, mandatory or discretionary, natural or de facto, and that the sentencing court failed to

consider his youth and its attendant characteristics in imposing the sentence. Id. ¶ 27. The court

then determined at what point a prison sentence for a term of years imposed on a juvenile

defendant was the functional equivalent of life without parole. Id. ¶ 29. Deferring to the
                                          -6­
legislature, the supreme court “[drew] a line at 40 years” and concluded that a prison sentence of

40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in

violation of the eighth amendment because it provides some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation. Id. ¶¶ 40-41. The court then

concluded that its holding applied retroactively and was cognizable in defendant’s

postconviction proceeding. Id. ¶ 46. Applying the established rule, the court concluded that

defendant’s 50-year sentence was a de facto life sentence, as it was greater than 40 years, and

that the circuit court had failed to consider defendant’s youth and its attendant characteristics in

imposing his sentence. Id. ¶ 42. Thus, the court remanded for resentencing. Id. ¶ 47.

¶ 16   In the present case, the defendant concedes that Buffer is adverse authority for his

argument that his 35-year prison sentence constituted a de facto life sentence. However, he

contends that Buffer supports his related arguments that he should be allowed to challenge his

guilty plea through a successive postconviction petition because he would not have pled guilty if

he had understood the implications of the eighth amendment, that he should be entitled to a new

sentencing hearing where the trial court failed to consider his youth and its attendant

characteristics when imposing the sentence, and that his resulting 35-year sentence violated the

proportionate penalties clause of the Illinois Constitution where it was grossly disproportionate

to his moral culpability and did not comport with the objective of restoring him to useful

citizenship. He asserted that he met the cause and prejudice test to file a successive

postconviction petition because Reyes and Buffer had not been decided when he filed his initial

postconviction petition and the application of Buffer changed the applicable sentencing range and

eliminated his justifications for entering a guilty plea—i.e., to avoid a natural-life sentence and

for the State’s recommendation to cap the sentence at 50 years—as neither sentence was

constitutionally available absent evidence of incorrigibility.
                                                -7­
¶ 17   The Act provides a mechanism by which those under criminal sentence can assert that

their convictions were the result of a substantial denial of their rights under the United States

Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2014). The Act

contemplates the filing of only one postconviction petition. Id. § 122-1(f). However, a defendant

may be granted leave to file a successive postconviction petition if he demonstrates cause for

failing to bring the claim in his initial postconviction petition and that prejudice results from that

failure. Id. A defendant shows cause by identifying an objective factor that impeded his ability to

raise a specific claim during his initial postconviction proceedings. Id. A defendant establishes

prejudice by demonstrating that the claim not raised during his initial postconviction proceedings

so infected the trial that the resulting conviction or sentence violated due process. Id. Leave of

court to file a successive postconviction petition should be denied where it is clear, from a

review of the successive petition with supporting documentation, that the alleged claims fail as a

matter of law or where the successive petition with supporting documentation is insufficient to

justify further proceedings. People v. Smith, 2014 IL 115946, ¶ 35. We review de novo the trial

court’s order denying leave to file the successive postconviction petition. People v. Sanders,

2016 IL App (1st) 121732-B, ¶ 14.

¶ 18   In the instant case, the defendant has demonstrated cause because Reyes and Buffer had

not been decided when he filed his initial postconviction petition and, thus, was not available to

the defendant. See Davis, 2014 IL 115595, ¶ 42 (holding that Miller’s new substantive rule

constituted “cause” because it was not available earlier to counsel). In addition, although the

defendant’s sentence was below the line drawn in Buffer and is not a de facto life sentence, we

still find that the defendant has demonstrated prejudice. To show prejudice, a defendant must

show a reasonable probability that he would have achieved a better result if the trial court had

correctly applied the constitutional limitations of juvenile sentences. See Sanders, 2016 IL App
                                                -8­
(1st) 121732-B, ¶ 20. Buffer, which applies retroactively, held that a prison sentence greater than

40 years amounted to a de facto life sentence. The defendant contends that he would not have

pled guilty to felony murder in exchange for a sentencing cap of 50 years if the guidelines set

forth in Buffer were established at the time that he entered his guilty plea. Specifically, he

contends that he pled guilty after being repeatedly admonished that he could receive a natural­

life sentence, which, given the facts of the case and the issuance of Buffer, is no longer a

reasonable threat. He further argues that the State’s offered sentencing cap of 50 years provided

little to no incentive for him to plead guilty, as a 50-year sentence would constitute a de facto life

sentence under Buffer. After reviewing the record, we find the defendant’s arguments persuasive,

as his guilty plea was influenced by the State’s sentencing recommendation and the repeated

admonishments that he could receive a life sentence. Thus, the retroactive application of Buffer

constitutes cause and prejudice for purposes of being granted leave to file a successive

postconviction petition. We, therefore, reverse and remand for additional postconviction

proceedings in light of Buffer.

¶ 19   For the foregoing reasons, the judgment of the circuit court of Washington County is

reversed and remanded.



¶ 20   Reversed and remanded.




                                                -9­
                                 2019 IL App (5th) 150192

                                      NO. 5-15-0192

                                          IN THE

                            APPELLATE COURT OF ILLINOIS

                                     FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellee,                       )     Washington County.
                                                )
v.                                              )     No. 00-CF-67
                                                )
LEONARD B. PARKER,                              )     Honorable
                                                )     Daniel J. Emge,
      Defendant-Appellant.                      )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:         July 2, 2019
______________________________________________________________________________

Justices:            Honorable Thomas M. Welch, J.

                  Honorable David K. Overstreet, P.J., and
                  Honorable Melissa A. Chapman, J.,
                  Concur
______________________________________________________________________________

Attorneys         James E. Chadd, State Appellate Defender, Ellen J. Curry,
for               Deputy Defender, Elizabeth M. Crotty, Assistant Appellate Defender,
Appellant         Office of the State Appellate Defender, Fifth Judicial District, 909 Water
                  Tower Circle, Mt. Vernon, IL 62864
______________________________________________________________________________

Attorneys         Hon. Daniel M. Bronke, State’s Attorney, Washington County
for               Courthouse, Nashville, IL 62263; Patrick Delfino, Director, David J.
Appellee          Robinson, Deputy Director, Luke McNeill, Staff Attorney, Office of the
                  State’s Attorneys Appellate Prosecutor, 725 South Second Street,
                  Springfield, IL 62704
______________________________________________________________________________
