                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Croom, 2012 IL App (4th) 100932




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DWAYNE T. CROOM, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0932


Argued                     May 8, 2012
Filed                      May 21, 2012
Rehearing denied           June 18, 2012


Held                       On appeal from the denial of defendant’s motion for leave to file a
(Note: This syllabus       successive postconviction petition, the appellate court held that
constitutes no part of     defendant’s motion was properly denied because he failed to satisfy the
the opinion of the court   cause-and-prejudice test and that the automatic transfer provision of the
but has been prepared      Juvenile Court Act did not violate due process, even though it allowed
by the Reporter of         defendant, who was charged with first degree murder committed when he
Decisions for the          was16 years old, to be transferred to adult court without a hearing.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Champaign County, No. 05-CF-1023;
Review                     the Hon. Thomas J. Difanis, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Lauren A. Bauser (argued),
Appeal                     all of State Appellate Defender’s Office, of Chicago, for appellant.

                           Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, Robert J.
                           Biderman, and Kathy Shepard (argued), all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE McCULLOUGH delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Turner and Justice Cook concurred in the judgment and
                           opinion.




                                             OPINION

¶1          In May 2005, the State charged defendant, Dwayne T. Croom, with first degree murder
        (720 ILCS 5/9-1(a)(2) (West 2004)), alleging he struck three-year old Altravius Bolden in
        the abdomen, causing Altravius’s death in June 2004. Defendant was 16 years old on the date
        of the alleged offense.
¶2          Prior to trial, defendant filed a motion to suppress oral statements he made to Detective
        Robert Rea while in a van. Defendant alleged the statements were made during a custodial
        interrogation where he “did not, and was not afforded the opportunity to knowingly waive
        his constitutional rights” to remain silent, consult an attorney, have an attorney present
        during the interrogation, and terminate the interrogation at any time, nor was he informed
        that any statements he made could be used against him in court. Further, defendant alleged
        “no effort was made *** to discover whether he was mentally or psychologically capable of
        making a voluntary statement.” After hearing the evidence and listening to the parties’
        arguments, the trial court denied defendant’s motion to suppress, finding defendant’s
        statements while in the van were voluntary and that defendant was not in custody for
        purposes of Miranda. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
¶3          In September 2005, defendant was found unfit to stand trial, based on Dr. Lawrence
        Jeckel’s medical opinion “that although [defendant] knows the function of the various
        participants in the court of law, there is significant doubt as to whether he can assist his
        attorney in his own defense.” Jeckel based his opinion on the fact that defendant was
        “defensive and concrete” and “stubbornly refused to consider that a plea agreement might
        net him less prison time.” Thus, Jeckel concluded, defendant “seemed to be unable to
        differentiate between a decision in the criminal justice system and the truth about the crime.”
        In March 2006, defendant was restored to fitness.
¶4          In September 2006, defendant’s jury trial commenced. The jury found defendant guilty

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       of first degree murder. In October 2006, defendant filed a motion for a new trial, alleging in
       part that the trial court erred in denying his motion to suppress. The court denied defendant’s
       motion and sentenced him to 50 years in prison.
¶5          On direct appeal, defendant argued the trial court erred by denying his motion to suppress
       statements he made to Detective Rea while in the van (statements that Detective Rea testified
       to during trial), asserting the statements were made during a custodial interrogation and were
       inadmissible because he was not informed of his Miranda rights. This court affirmed
       defendant’s convictions in February 2008. People v. Croom, 379 Ill. App. 3d 341, 352, 883
       N.E.2d 681, 690 (2008).
¶6          In November 2008, defendant filed a postconviction petition challenging appellate
       counsel’s effectiveness for failing to raise several claims on direct appeal. In December 2008,
       the trial court summarily dismissed defendant’s petition, finding it frivolous and patently
       without merit. On appeal from the summary dismissal, defendant argued that appellate
       counsel was ineffective for failing to challenge the sufficiency of the State’s evidence. This
       court affirmed the summary dismissal of the petition. People v. Croom, No. 4-09-0047 (Feb.
       16, 2010) (unpublished order under Supreme Court Rule 23).
¶7          On October 4, 2010, defendant filed a motion seeking leave to file a successive
       postconviction petition, which the trial court denied on October 26, 2010.
¶8          This appeal followed.
¶9          The first issue on appeal is whether the automatic transfer provision of the Illinois
       Juvenile Court Act of 1987 (Juvenile Act) (705 ILCS 405/5-130 (West 2004)) violates
       federal and state due process because it subjects 15- and 16-year-old juveniles charged with
       certain enumerated crimes to be automatically transferred to adult court without a hearing.
¶ 10        The constitutionality of a criminal statute may be raised at any time. In re J.W., 204 Ill.
       2d 50, 61, 787 N.E.2d 747, 754 (2003). Whether a statute violates due process is reviewed
       de novo. Miller v. Rosenberg, 196 Ill. 2d 50, 57, 749 N.E.2d 946, 951 (2001). Statutes are
       presumed constitutional, and a party challenging the constitutionally bears the burden of
       establishing its invalidity. People v. Wright, 194 Ill. 2d 1, 24, 740 N.E.2d 755, 766 (2000).
       “[T]he legislature has wide discretion to establish penalties for criminal offenses, but this
       discretion is limited by the constitutional guarantee that a person may not be deprived of
       liberty without due process of law.” Wright, 194 Ill. 2d at 24, 740 N.E.2d at 766-67.
¶ 11        Before turning to the substance of defendant’s petition, we first dispose of the State’s
       contention that defendant has forfeited his due process argument by failing to provide notice
       of it to the Attorney General pursuant to Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006).
¶ 12        Rule 19 provides in pertinent part:
                 “(a) Notice Required. In any cause or proceeding in which the constitutionality or
            preemption by federal law of a statute, ordinance, administrative regulation, or other law
            affecting the public interest is raised, and to which action or proceeding the State or the
            political subdivision, agency, or officer affected is not already a party, the litigant raising
            the constitutional or preemption issue shall serve an appropriate notice thereof on the
            Attorney General, State’s Attorney, municipal counsel or agency counsel, as the case may
            be.” (Emphases added.) Ill. S. Ct. R. 19(a) (eff. Sept. 1, 2006).

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       “The purpose of the notice is to give the affected agency or officer the opportunity to
       intervene in the proceeding for the purpose of defending the constitutionality of the statute,
       ordinance, or administrative regulation.” Village of Lake Villa v. Stokovich, 211 Ill. 2d 106,
       115, 810 N.E.2d 13, 20 (2004). Here, the State’s Attorney was clearly given notice that
       defendant is challenging the constitutionality of the automatic transfer provision of the
       Juvenile Act, as the State is a party to this proceeding. Thus, finding that the Rule 19 notice
       requirements have been met, we turn to the merits of defendant’s due process claim.
¶ 13        Defendant argues that the automatic transfer provision of the Juvenile Act violates (1)
       substantive due process because juveniles are transferred to adult court without any
       investigation to determine if transfer is appropriate, and (2) procedural due process because
       transferring juveniles to adult court without a hearing bears no rational relationship to any
       legitimate government purpose. We disagree.
¶ 14        The automatic transfer provision of the Juvenile Act provides:
            “The definition of delinquent minor under Section 5-120 of this Article shall not apply
            to any minor who at the time of an offense was at least 15 years of age and who is
            charged with first degree murder ***.
                These charges and all other charges arising out of the same incident shall be
            prosecuted under the criminal laws of this State.” 705 ILCS 405/5-130(1)(a) (West
            2004).
¶ 15        Defendant acknowledges that the Illinois Supreme Court has previously found the
       automatic transfer provision of the Juvenile Act to be constitutional. See People v. J.S., 103
       Ill. 2d 395, 405-06, 469 N.E.2d 1090, 1095 (1984); People v. M.A., 124 Ill. 2d 135, 146-47,
       529 N.E.2d 492, 497 (1988). In J.S., our supreme court applied the rational basis test and
       held that because the automatic transfer provision applied only to 15- and 16-year-olds who
       committed the most serious Class X felonies, the classification was “rationally based on the
       age of the offender and the threat posed by the offense to the victim and the community
       because of its violent nature and frequency of commission.” J.S., 103 Ill. 2d at 404, 469
       N.E.2d at 1095. However, defendant urges this court to revisit the rationale set forth in J.S.
       and other similar cases in light of Roper v. Simmons, 543 U.S. 551 (2005), and Graham v.
       Florida, 560 U.S. ___, 130 S. Ct. 2011 (2010). Specifically, defendant argues Roper and
       Graham stand for the proposition that, because none of the four penological justifications
       that provide the rationale for adult sentencing–retribution, deterrence, incapacitation, and
       rehabilitation–apply to juvenile offenders, it is no longer rational to automatically transfer
       juveniles to adult court. We disagree.
¶ 16        This exact issue was recently addressed by the First District Appellate Court in People
       v. Jackson, 2012 IL App (1st) 100398, ¶ 16, 2012 WL 398818, at *4, and People v. Salas,
       2011 IL App (1st) 091880, ¶¶ 75-80, 961 N.E.2d 831, 848-50. Both Jackson and Salas held
       that Roper and Graham, which dealt with challenges made to the sentencing statutes under
       the eighth amendment, did not apply to the due process constitutional challenge at issue in
       their respective cases. The Roper Court held that the eighth amendment’s cruel and unusual
       punishment clause forbade a sentence of death for juveniles. Roper, 543 U.S. at 578. The
       Graham Court held that the eighth amendment forbade a sentence of life without parole for


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       juvenile offenders who had not committed homicide. Graham, 560 U.S. at ___, 130 S. Ct.
       at 2030. No due process arguments were raised in either Roper or Graham. Those cases are
       clearly distinguishable because they applied (1) a different analysis (2) under a different test
       for (3) an alleged violation of a different constitutional provision regarding severe sentencing
       sanctions–not the automatic transfer to adult court at issue here. Accordingly, we adopt the
       First District’s holding and conclude that “defendant’s argument is without merit as [J.S.]
       remains on solid footing with the Supreme Court’s holdings in Roper and Graham. [Thus,
       d]efendant’s substantive due process rights were not violated when he was automatically
       transferred to adult court pursuant to the automatic transfer provision of the Illinois Juvenile
       Court Act of 1987 ***.” Jackson, 2011 IL App (1st) 100398, ¶ 16, 2012 WL 398818, at *4.
¶ 17        Defendant also asserts that the Supreme Court’s decades’ old holding in Kent v. United
       States, 383 U.S. 541 (1966), which held transfers from juvenile to adult court violated
       procedural due process absent an investigation to determine whether transfer was
       appropriate, requires a finding of unconstitutionality. We disagree.
¶ 18        At issue in Kent was a District of Columbia statute that provided juveniles over the age
       of 16 years could be tried as adults if they were charged with an offense that, if committed
       by an adult, carried a possible sentence of death or life imprisonment. Kent, 383 U.S. at 547-
       48. The statute allowed juveniles to be tried as adults for these crimes if, after a “full
       investigation” by the juvenile court judge, the juvenile judge waived jurisdiction. Kent, 383
       U.S. at 547-48. The court found this statute violated procedural due process because it gave
       the “Juvenile Court a substantial degree of discretion as to the factual considerations to be
       evaluated, the weight to be given them and the conclusion to be reached.” Kent, 383 U.S. at
       553. In J.S., our supreme court specifically found that Kent does not apply to the automatic
       transfer provision of the Juvenile Act because, unlike the statute at issue in Kent, the
       automatic transfer provision does not allow any discretion in the transferring of juveniles to
       adult court, as every 15- and 16-year-old charged with one of the enumerated offenses is
       automatically transferred and prosecuted under the criminal laws. J.S., 103 Ill. 2d at 405, 469
       N.E.2d at 1095. As such, defendant’s argument lacks merit.
¶ 19        The second issue on appeal is whether defendant demonstrated cause and prejudice
       sufficient to warrant granting him leave to file a successive postconviction petition pursuant
       to section 122-1(f) of the Post-Conviction Hearing Act (725 ILCS 5/122-1(f) (West 2010)).
       In his motion, defendant asserted that trial counsel was ineffective for failing to file a motion
       for reconsideration of the motion to suppress defendant’s statements to the police based upon
       the pretrial determination that defendant was unfit to stand trial. Specifically, defendant
       maintained that he was unable to raise this issue in his initial petition for the following two
       objective reasons: (1) he was not in possession of the legal documents regarding his fitness
       that were necessary to support his claim, and (2) the correctional facility was on lockdown
       status when his initial petition was due and, thus, he was unable to seek assistance from the
       law clerk in amending his petition to include the claim and in preparing an affidavit
       explaining why he was unable to attach supporting documentation. Further, defendant argued
       that “[a] failure to allow him to secure a full and fair hearing on such legal issue will result
       in prejudice, and deprive [him] of the constitutionally guaranteed ‘due process’ which he is
       entitled to.”

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¶ 20       The trial court denied defendant’s motion for leave to file a successive postconviction
       petition for the following reasons: (1) defendant did not allege a denial of his constitutional
       rights, (2) he failed to identify an objective factor that impeded his ability to bring his claim
       in the initial postconviction petition, and (3) defendant did not point to any prejudice that so
       infected the trial that the resulting conviction violated due process. Specifically, the court
       stressed that defendant was present when the court found him unfit and, thus, a simple
       affidavit regarding the claim by defendant would have sufficed to initially raise the issue.
       Further, the court stated “[a] finding of unfitness many months after the statement in question
       was made does not diminish the knowing [nature] and voluntariness of said statement.”
¶ 21       The denial of a defendant’s motion to file a successive postconviction petition is
       reviewed de novo. People v. Gillespie, 407 Ill. App. 3d 113, 124, 941 N.E.2d 441, 452
       (2010).
¶ 22       The Post-Conviction Hearing Act (725 ILCS 5/art. 122 (West 2010)) provides a remedy
       for defendants who have suffered a substantial violation of their constitutional rights at trial.
       People v. Pendleton, 223 Ill. 2d 458, 471, 861 N.E.2d 999, 1007 (2006). A postconviction
       proceeding is a “collateral attack on a prior conviction and sentence, and the scope of such
       a proceeding is generally limited to constitutional matters that have not been, or could not
       have been, previously adjudicated.” People v. Cummings, 375 Ill. App. 3d 513, 518, 873
       N.E.2d 996, 1001 (2007).
¶ 23       Defendants may only file one postconviction petition without leave of court. 725 ILCS
       5/122-1(f) (West 2010). “[A] ruling on an initial post[ ]conviction petition has res judicata
       effect with respect to all claims that were raised or could have been raised in the initial
       petition.” People v. Jones, 191 Ill. 2d 194, 198, 730 N.E.2d 26, 29 (2000). “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” (725
       ILCS 5/122-1(f) (West 2010)), or where necessary to prevent a fundamental miscarriage of
       justice, i.e., a defendant must show actual innocence, or in a death penalty case, that a
       defendant would not have been eligible for the death penalty in the absence of the
       constitutional error. People v. Pitsonbarger, 205 Ill. 2d 444, 459, 793 N.E.2d 609, 621
       (2002).
¶ 24       Citing the Second District Appellate Court’s decision in People v. LaPointe, 365 Ill. App.
       3d 914, 924, 850 N.E.2d 893, 901 (2006), aff’d on other grounds, 227 Ill. 2d 39, 45, 879
       N.E.2d 275, 278 (2007), defendant argues he need only state the “gist” of a claim of cause
       and prejudice, and that an actual demonstration of cause and prejudice need not be made
       until the second and third stages of postconviction proceedings. We disagree. A petition for
       leave to file a successive postconviction petition is not a postconviction petition and never
       advances to additional stages of review. See People v. Edwards, 2012 IL App (1st) 091651,
       ¶ 19, 2012 WL 555911, at *4 (“a successive petition ‘is not considered “filed” for purposes
       of section 122-1(f), and further proceedings will not follow, until leave is granted, a
       determination dependent upon a defendant’s satisfaction of the cause-and-prejudice test’ ”
       (quoting People v. Tidwell, 236 Ill. 2d 150, 161, 923 N.E.2d 728, 734 (2010))). Thus, a court
       will not grant leave to file a successive postconviction petition unless a defendant
       demonstrates cause and prejudice. See People v. Conick, 232 Ill. 2d 132, 141, 902 N.E.2d

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       637, 643 (2008).
¶ 25        To satisfy the cause-and-prejudice test, a defendant must show (1) good cause for failing
       to raise the claimed errors in a prior proceeding and (2) actual prejudice resulting from the
       claimed errors. Pitsonbarger, 205 Ill. 2d at 460-62, 793 N.E.2d at 621-23. “A defendant
       shows ‘cause’ by identifying an objective factor external to the defense that impeded his
       efforts to raise his claim in the earlier proceeding.” Edwards, 2012 IL App (1st) 091651,
       ¶ 20, 2012 WL 555911, at *5 (citing Pitsonbarger, 205 Ill. 2d at 460, 793 N.E.2d at 622);
       see also 725 ILCS 5/122-1(f)(1) (West 2010). “ ‘ “Prejudice” exists where the defendant can
       show that the claimed constitutional error so infected his trial that the resulting conviction
       violated due process.’ ” Edwards, 2012 IL App (1st) 091651, ¶ 20, 2012 WL 555911, at *5
       (quoting People v. Morgan, 212 Ill. 2d 148, 154, 817 N.E.2d 524, 527 (2004)); see also 725
       ILCS 5/122-1(f)(2) (West 2010).
¶ 26       As “cause” for failing to raise this claim in his initial postconviction petition, defendant
       maintains (1) he was not in possession of the legal documents regarding his fitness that were
       necessary to support the claim and (2) the correctional facility was on lockdown when his
       initial petition was due and, thus, he was unable to seek assistance from the law clerk in
       amending his petition to include the claim and in preparing an affidavit explaining why he
       was unable to attach supporting documentation. See 725 ILCS 5/122-2 (West 2010). The
       State responds that neither of the reasons given by defendant is an “objective factor external
       to the defense, which impeded [defendant’s] ability to raise [this] specific claim at the initial
       postconviction petition” (citing Pitsonbarger, 205 Ill. 2d at 462, 793 N.E.2d at 623). We
       agree.
¶ 27        We note that defendant cites several cases to support the proposition that courts have
       recognized a prisoner’s lack of access to legal materials because of a prison lockdown can
       excuse the late filing of a postconviction petition. See People v. Marino, 397 Ill. App. 3d
       1030, 1034, 927 N.E.2d 75, 79 (2010) (2d Dist.); People v. Van Hee, 305 Ill. App. 3d 333,
       337, 712 N.E.2d 363, 367 (1999) (2d Dist.); People v. Mitchell, 296 Ill. App. 3d 930, 933,
       696 N.E.2d 365, 367 (1998) (3d Dist.). Defendant urges us to extend the same reasoning to
       this case, where defendant did not have access to the “law clerk” because the prison was
       alleged to have been on lockdown. We decline to do so.
¶ 28        Even if we were to find defendant has established cause–which we do not–he cannot
       demonstrate prejudice.
¶ 29       In his petition for leave, defendant asserted “[a] failure to allow him to secure a full and
       fair hearing on such legal issue will result in prejudice, and deprive [him] of the
       constitutionally guaranteed ‘due process’ which he is entitled to *** given the overwhelming
       significance of such legal issue regarding [defendant’s] mental state at the time in which
       incriminating statements were secured from him.” In his brief, defendant contends he “was
       arguably prejudiced by counsel’s failure to litigate whether his mental capacity–and
       particularly his inability to distinguish between the truth and the steps of a criminal
       proceeding–rendered his confession involuntary.” Thus, defendant argues the omission of
       this claim from his initial postconviction petition precluded him from determining if
       counsel’s failure to litigate the matter constituted trial strategy or incompetence. In contrast,


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       the State maintains, as the trial court did, “the knowing and voluntary nature of defendant’s
       statement was not diminished by the finding of unfitness many months after the statement
       was made.” We agree with the State.
¶ 30        The statements at issue here were made in July 2004. Defendant was found unfit to stand
       trial in September 2005. A finding of unfitness is based on the determination that a defendant
       “is unable to understand the nature and purpose of the proceedings against him or to assist
       in his defense.” 725 ILCS 5/104-10 (West 2010). Here, it appears defendant was found unfit
       to stand trial based on defendant’s insistence that “if he was innocent, he should not take a
       plea” and “that the jury would do the right thing.” Specifically, Dr. Jeckel opined defendant
       “stubbornly refused to consider that a plea agreement might net him less prison time” and,
       thus, defendant “seemed unable to differentiate between a decision in the criminal justice
       system and the truth about the crime.” Moreover, a finding of unfitness for trial does not
       necessitate a finding that statements given more than one year earlier were involuntary. The
       determination that a defendant is unable to assist in his defense at the time of trial does not
       mean that the same defendant was unable to voluntarily make statements to the police prior
       to a finding of unfitness to stand trial. In fact, after hearing testimony regarding the
       voluntariness of defendant’s statements at issue here during the initial suppression hearing,
       including defendant’s own testimony, the trial court specifically found the statements made
       to Detective Rea while in the van were voluntarily made. This analysis conducted by the trial
       court at the initial suppression hearing would not have changed, even after defendant was
       found unfit to stand trial, and thus the outcome would have been the same. As such,
       defendant was not prejudiced by defense counsel’s failure to file a motion to reconsider the
       motion to suppress.
¶ 31        In sum, we hold that the automatic transfer provision of the Juvenile Act does not violate
       due process and the trial court did not err in denying defendant’s petition for leave to file a
       successive postconviction petition because defendant failed to satisfy the cause-and-prejudice
       test.
¶ 32        For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 33      Affirmed.




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