                                          2016 IL App (3d) 140723

                                Opinion filed April 25, 2016
     _____________________________________________________________________________

                                                   IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2016

     THE PEOPLE OF THE STATE OF                         )      Appeal from the Circuit Court
     ILLINOIS,                                          )      of the 12th Judicial Circuit,
                                                        )      Will County, Illinois.
            Plaintiff-Appellee,                         )
                                                        )      Appeal No. 3-14-0723
            v.                                          )      Circuit No. 84-CF-190
                                                        )
     JAMES WALKER,                                      )
                                                        )      Honorable Robert P. Livas,
            Defendant-Appellant.                        )      Judge, Presiding.
     ____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices Lytton and Wright concurred in the judgment and opinion.

                                                  OPINION


¶1          In July 1984, a Will County jury convicted defendant, James Walker, of felony murder

     (Ill. Rev. Stat. 1983, ch. 38, ¶ 9-1). He was 17 years old at the time of the offense. The court

     sentenced him to natural life imprisonment without the possibility of parole. Defendant raised

     three issues, including his sentence, on direct appeal; this court affirmed. People v. Walker, 136

     Ill. App. 3d 177 (1985). The Illinois Supreme Court denied defendant’s petition for leave to

     appeal. People v. Walker, 111 Ill. 2d 563 (1985).

¶2          In June 2013, defendant filed a postconviction petition. Defendant argued that at his

     sentencing hearing, the trial court did not consider his status as a juvenile and the attendant
     characteristics of his youth at the time of the offense. Citing Miller v. Alabama in support,

     defendant alleges his constitutional rights were violated. Miller v. Alabama, 567 U.S. ___, 132

     S. Ct. 2455 (2012) (hereinafter Miller). Defendant also claimed his sentence violated the

     proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970, art. I, § 11. Upon the

     State’s motion, the trial court dismissed defendant’s petition.

¶3            Defendant appeals the dismissal of his postconviction petition, arguing his sentence: (1)

     violates the United States Constitution; (2) violates the proportionate penalties clause of the

     Illinois Constitution; and (3) as it applies to juveniles, Illinois’s natural life sentencing scheme is

     unconstitutional. In addition to countering defendant’s claims, the State asserts that defendant’s

     postconviction petition is untimely. We find defendant’s petition is untimely, and affirm the trial

     court’s ruling.

¶4                                             BACKGROUND

¶5            The defendant murdered Charles Davis during an attempted armed robbery. Defendant

     and his codefendant, Xavier Williams, are African American. In March 1984, defendant and

     Williams were minors—17 and 16 years old, respectively.1 They decided they needed money

     and in order to get some, they should rob a cabdriver. Defendant called Davis’s taxi company

     specifically because he thought they were known to employ “white drivers.” Walker, 136 Ill.

     App. 3d at 178. Davis was, in fact, white.

¶6            Davis picked up defendant and Williams in his taxi cab. Defendant sat directly behind

     Davis in the cab with a loaded, sawed-off shotgun concealed under his coat. After a brief drive,


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         In 1984, any minor over the age of 14 charged with murder or armed robbery was mandatorily

     prosecuted as an adult pursuant to the Criminal Code of 1961. Ill. Rev. Stat. 1983, ch. 37, ¶ 702-

     7(6)(a).


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     defendant produced the shotgun and demanded that Davis stop the cab. Williams exited the rear

     passenger side of the cab, intending to take over as the driver. Before Williams reached the

     driver’s side door, defendant fired the shotgun. Upon seeing the carnage that resulted from

     defendant shooting Davis in the back of the head with a shotgun at point-blank range, Williams

     fled; defendant followed.

¶7          Defendant and Williams both went to the home of a mutual friend where they

     encountered friends throughout the night. Each separately told friends that defendant killed

     Davis. Defendant and Williams were arrested a few days later. Each provided the police with a

     confession that mirrored the other’s account of events in most respects. The significant

     difference between their confessions was their professed intent. Williams said he concealed his

     face with a cap and scarf, intending merely to rob the driver. Defendant said he was aware he

     had no means to conceal his face going into the robbery, and killed Davis so that he could not

     later identify him.

¶8          Defendant and Williams were indicted for murder and felony murder and tried jointly. A

     jury found them both guilty of felony murder. At sentencing, the trial court discussed

     defendant’s criminal record—containing both adult dispositions and juvenile records of

     adjudication—and the fact that defendant received counseling “for a variety of family, social,

     sexual and educational problems.” The trial court sentenced defendant to a discretionary natural

     life imprisonment without parole and Williams to 35 years’ imprisonment.

¶9          On direct appeal, defendant contested, inter alia, the imposition of his life sentence. Id.

     at 181-82. Most notably, defendant argued that none of the statutory requirements for imposing

     a life sentence were met in his case. This court rejected all of defendant’s arguments and

     affirmed his conviction. Before concluding, this court noted:



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                          “Walker also suggests that this crime was not ‘brutal or

                      heinous’ since death was instantaneous and did not involve torture

                      of the victim. He would have us ignore the fact that the murder

                      was casually undertaken, was horribly mutilating to the body of the

                      victim, and was performed cold-bloodedly without any

                      provocation, real or imagined, on the part of the victim. No one

                      can say what mental and physical suffering the victim incurred

                      during his last few moments of life. We hold that the trial court

                      did not err in sentencing Walker to life imprisonment.” Id. at 182.

¶ 10          Defendant filed a petition for relief under the Post-Conviction Hearing Act (725 ILCS

       5/122-1 et seq. (West 2012)) in June 2013. He argued his life sentence was unconstitutional

       under Miller and violated the proportionate penalties clause of the Illinois Constitution. Miller,

       567 U.S. ___, 132 S. Ct. 2455. In August of that year, the trial court advanced defendant’s

       petition to the second stage of postconviction proceedings. The State filed a motion to dismiss,

       which the trial court granted. The trial court found that the original trial court had considered

       defendant’s youth and other relevant factors before sentencing. In so doing, the trial court noted

       the explicit discussion on the record of defendant’s age and life circumstances during

       defendant’s sentencing hearing. The trial court also declined to extend Miller to defendant’s

       case, reasoning that Miller applies to mandatory life sentences, not discretionary ones. Id.

¶ 11          Defendant appeals the dismissal of his postconviction petition, arguing his sentence

       violates both the eighth amendment to the United States Constitution, contrary to the Supreme

       Court’s ruling in Miller, and the proportionate penalties clause of the Illinois Constitution.

       Additionally, defendant argues that, as it applies to juveniles, Illinois’ natural life sentencing



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       scheme is per se unconstitutional. The State rebuts defendant’s arguments and further asserts

       that defendant’s postconviction petition is untimely. We affirm.

¶ 12                                                ANALYSIS

¶ 13          We review the trial court’s dismissal of a postconviction petition in the second stage de

       novo. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). “[I]ssues that were raised and decided

       on direct appeal are barred from consideration by the doctrine of res judicata; issues that could

       have been raised, but were not, are considered forfeited.” People v. Davis, 2014 IL 115595, ¶ 13

       (citing People v. Ortiz, 235 Ill. 2d 319, 328 (2009)).

¶ 14          The Post-Conviction Hearing Act provides three stages to adjudicate postconviction

       petitions. In the first stage, only petitions that are “frivolous or *** patently without merit” may

       be dismissed. 725 ILCS 5/122-2.1(a)(2) (West 2012). The State may file a motion to dismiss a

       postconviction petition at the second stage. 725 ILCS 5/122-5 (West 2012). In order to survive

       dismissal, the defendant must make a substantial showing of a constitutional violation. People v.

       Edwards, 197 Ill. 2d 239, 246 (2001).

¶ 15          Defendant’s petition asserted two claims: (1) Miller requires defendant’s sentence to be

       vacated and that he be resentenced; and (2) defendant’s sentence violates the proportionate

       penalties clause of the Illinois Constitution. Defendant’s arguments on appeal include the

       additional assertion that Illinois’s natural life sentencing scheme is per se unconstitutional, as it

       applies to juveniles. The record indicates that defendant declined to amend his petition in the

       trial court to include the latter argument. As such, we need not address it. “Any claim of

       substantial denial of constitutional rights not raised in the original or an amended petition is

       waived.” 725 ILCS 5/122-3 (West 2012).

¶ 16                                I. The State’s Untimely Petition Argument



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¶ 17           The State argues defendant violated the Post-Conviction Hearing Act’s time limitations

       (725 ILCS 5/122-1(c) (West 2012)), forfeiting all claims asserted in his petition. Defendant

       asserts that the notion that juveniles are less culpable for their actions than adults is a recent

       revelation and, therefore, his petition is timely. More precisely, defendant claims this strand of

       thought has only been available to criminal defendants since the Supreme Court decided Miller.

       We disagree.

¶ 18           Where, as here, the petitioner is not under sentence of death and has not petitioned for

       writ of certiorari, the Post-Conviction Hearing Act prohibits filing a postconviction petition

       more than six months after the conclusion of proceedings “unless the petitioner alleges facts

       showing that the delay was not due to his or her culpable negligence.” Id.; see People v.

       Paleologos, 345 Ill. App. 3d 700, 707-08 (2003).

¶ 19           A juvenile’s relative lack of fault, in comparison to their adult counterpart, is not an

       intellectual breakthrough that came to light solely in the wake of Miller. Defendant’s position on

       this point is undermined by cases he relies upon in his brief. Roper v. Simmons, 543 U.S. 551,

       570 (2005), is the most prominent example (noting that juveniles have greater rehabilitative

       potential than adults). In fact, the Roper Court explicitly noted the following:

                       “[D]ifferences between juveniles under 18 and adults demonstrate

                       that juvenile offenders cannot with reliability be classified among

                       the worst offenders. *** The Thompson plurality recognized the

                       import of these characteristics with respect to juveniles under 16.

                       [Citation.] The same reasoning applies to all juvenile offenders

                       under 18.” (Emphasis added.) Id. at 553.




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       Given the language in Roper, the argument now asserted by the defendant was available to him

       at least as early as 2005. Therefore, his petition is untimely and we affirm the trial court’s

       dismissal.

¶ 20                              II. Defendant’s Miller v. Alabama Argument

¶ 21            Even were his petition timely, defendant’s arguments fail. Miller holds that mandatory

       life sentencing for juvenile offenders must be vacated and the defendant must be resentenced at a

       discretionary sentencing hearing. The trial court has already provided defendant with the relief

       to which defendant is entitled. In Miller, the United States Supreme Court held that mandatory

       life sentences for defendants under the age of 18 violates the eighth amendment. U.S. Const.,

       amend VIII; Miller, 567 U.S. ___, 132 S. Ct. 2455. The Illinois Supreme Court further held that

       Miller applies retroactively. People v. Davis, 2014 IL 115595, ¶ 34. This reasoning was

       recently affirmed by the Supreme Court. Montgomery v. Lousiana, ___ U.S. ___, 136 S. Ct. 718

       (2016). Miller and its progeny hold that the mitigating factors inherent in being a juvenile must

       be considered before sentencing someone under the age of 18 to life in prison at the time of the

       offense. Miller, 567 U.S. at ___, 132 S. Ct. at 2468. That is, no mandatory life sentences for

       juveniles.

¶ 22          The defendant in this case was not given a mandatory sentence. Ergo, Miller does not

       apply. Defendant asserts, however, that the trial court did not consider his youth and other

       relevant factors before sentencing him to life in prison without parole and, therefore, his sentence

       is unconstitutional. We find two problems with this argument.

¶ 23          First, the record belies the argument. The transcript from defendant’s sentencing hearing

       demonstrates the trial court was aware of defendant’s age and life circumstances at the time of

       his offense. The trial court discussed defendant’s criminal record with trial counsel, which



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       contained recent juvenile records of adjudication. Defendant’s presentence investigation report

       indicated that he received counseling “for a variety of family, social, sexual and educational

       problems.”

¶ 24          After reviewing the record, we conclude there is no reasonable possibility that the trial

       court, during defendant’s sentencing hearing, was unaware of, or failed to consider, the fact that

       defendant was 17 years old with a grossly unstable living environment when he committed

       murder.

¶ 25          The trial court imposed a discretionary sentence after a full sentencing hearing. Miller is

       inapposite. The defendant is seeking on appeal that which he already received—a proper

       sentencing hearing. Thus, defendant failed to make a substantial showing of a constitutional

       violation at the hearing on the motion to dismiss his postconviction petition as required. People

       v. Edwards, 197 Ill. 2d 239, 246 (2001).

¶ 26                        III. Defendant’s Proportionate Penalty Clause Argument

¶ 27          Defendant also argues his discretionary sentence of life without parole violates the

       proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970, art. I, § 11. This

       clause mandates that penalties “be determined both according to the seriousness of the offense

       and with the objective of restoring the offender to useful citizenship.” Id. In other words, a

       criminal penalty must be proportionate to the offense committed. People v. Grant, 2014 IL App

       (1st) 100174-B, ¶ 41. Defendant’s proportionate penalties clause argument is both untimely and

       meritless.

¶ 28          As discussed previously, defendant’s postconviction arguments must be brought before

       the court within six months of the conclusion of proceedings “unless the petitioner alleges facts

       showing that the delay was not due to his or her culpable negligence.” 725 ILCS 5/122-1(c)



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       (West 2012). The People v. Leon Miller (202 Ill. 2d 328 (2002)) decision was not a watershed

       in proportionate penalty clause jurisprudence. The arguments Leon Miller relied upon in his

       case were available to the defendant in this case at trial and within six months of the conclusion

       of his proceedings. Even assuming Leon Miller did usher in a new era in proportionate penalties

       clause arguments, it was decided in 2002. Id.

¶ 29          Furthermore, defendant’s argument fails on the merits. Leon Miller involved a timely

       filed petition with facts that stand in stark contrast to those of this case. Leon Miller received a

       mandatory life sentence for acting as a lookout during a robbery which he played no part in

       planning, had approximately one minute to contemplate his decision to participate, and never

       handled a gun in the course of the offense. Id. In short, he was “the least culpable offender

       imaginable.” Id. at 341.

¶ 30          The defendant’s situation in this case is in no way similar to that of the defendant in Leon

       Miller. Defendant was the triggerman, not a lookout. He planned his acts before deliberately

       putting them into action. Again, he was sentenced at the discretion of the trial court.

       Defendant’s sentence does not violate the proportionate penalties clause. See People v.

       Lauderdale, 2012 IL App (1st) 100939, ¶ 39 (citing People v. Sharpe, 216 Ill. 2d 481, 521

       (2005)).

¶ 31                                             CONCLUSION

¶ 32          For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 33          Affirmed.




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