                                                                           Digitally signed by
                                                                           Reporter of Decisions
                         Illinois Official Reports                         Reason: I attest to the
                                                                           accuracy and
                                                                           integrity of this
                                                                           document
                                 Appellate Court                           Date: 2017.02.14
                                                                           14:56:15 -06'00'




                   People v. Applewhite, 2016 IL App (1st) 142330



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             SAMUEL APPLEWHITE, Defendant-Appellant.



District & No.      First District, Sixth Division
                    Docket No. 1-14-2330



Filed               December 9, 2016
Rehearing denied    January 10, 2017



Decision Under      Appeal from the Circuit Court of Cook County, No. 01-CR-23489; the
Review              Hon. Clayton J. Crane, Judge, presiding.



Judgment            Affirmed.



Counsel on          Michael J. Pelletier, Patricia Mysza, and Elena B. Penick, of State
Appeal              Appellate Defender’s Office, of Chicago, for appellant.

                    Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                    Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the
                    People.



Panel               JUSTICE CUNNINGHAM delivered the judgment of the court, with
                    opinion.
                    Justices Rochford and Delort concurred in the judgment and opinion.
                                             OPINION

¶1       The defendant, Samuel Applewhite, appeals the dismissal of his petition for relief under
     the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). On appeal, he
     argues that the trial court erred in dismissing his petition as frivolous and patently without
     merit when the court held that his 45-year sentence did not violate the eighth amendment (U.S.
     Const., amend. VIII) or the proportionate penalties clause of the Illinois Constitution (Ill.
     Const. 1970, art. I, § 11). For the reasons that follow, we affirm the judgment of the circuit
     court of Cook County.
¶2       In October 2001, the State charged the defendant in case No. 01 CR 23488 with multiple
     counts of attempted first degree murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2000)), aggravated
     battery with a firearm (720 ILCS 5/12-4.2 (West 2000)), and armed robbery (720 ILCS
     5/18-2(a)(2)-(4) (West 2000)). The indictment alleged that, on July 11, 2001, the defendant (a
     17-year-old at the time of the offenses) “shot Lamar Smith about the body” and “took United
     States currency from the person or presence of Lamar Smith.”
¶3       The State also charged the defendant in case No. 01 CR 23489 with multiple counts of first
     degree murder (720 ILCS 5/9-1(a)(1)-(3) (West 2000)), attempted first degree murder (720
     ILCS 5/8-4, 9-1 (West 2000)), armed robbery (720 ILCS 5/18-2(a)(2), (a)(3) (West 2000)),
     attempted armed robbery (720 ILCS 5/8-4, 18-2(a)(4) (West 2000)), and aggravated discharge
     of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2000)). These charges stem from a shooting
     incident that occurred on August 19, 2001, in which the defendant shot and killed Marshall
     Young.
¶4       On September 25, 2003, pursuant to a fully negotiated plea agreement, the defendant pled
     guilty to one count of first degree murder of Marshall Young (case No. 01 CR 23489) and one
     count of aggravated battery with a firearm of Lamar Smith (case No. 01 CR 23488). The
     remaining counts were dismissed. Pursuant to the agreement, the trial court imposed the
     mandatory minimum sentence of 45 years’ imprisonment for first degree murder. This
     sentence consisted of the minimum 20-year sentence for murder (see 730 ILCS
     5/5-8-1(a)(1)(a) (West 2002) (providing a range of 20 to 60 years)), plus a minimum 25-year
     mandatory firearm enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002) (providing
     for an add-on of 25 years to natural life)). The court also sentenced the defendant to 12 years’
     imprisonment for aggravated battery with a firearm (see 730 ILCS 5/5-8-1(a)(3) (West 2002)
     (providing a range of 6 to 30 years)) to run concurrent with the murder sentence.
¶5       The defendant did not move to withdraw his pleas or otherwise appeal from the judgment
     entered on his convictions, though he did file a pro se petition for relief from judgment under
     section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). He
     alleged, inter alia, that his plea agreement and concurrent sentences were void because
     consecutive sentences were required by section 5-8-4(d)(1) of the Unified Code of Corrections
     (730 ILCS 5/5-8-4(d)(1) (West 2012)). He argued that he should be allowed to withdraw his
     pleas and go to trial. The State conceded that the sentences were void, as consecutive sentences
     were required. Nevertheless, the State maintained that it could remedy the illegality by
     dismissing the aggravated battery with a firearm charge, leaving intact the guilty plea and
     45-year sentence for first degree murder.
¶6       The trial court granted the State’s request and vacated the defendant’s conviction for
     aggravated battery with a firearm in case No. 01 CR 23488. As a consequence, the court issued

                                                -2-
       a revised mittimus reflecting a 45-year sentence for first degree murder in case No. 01 CR
       23489 and otherwise denied the defendant’s petition. The defendant appealed, and this court
       affirmed the trial court’s ruling. People v. Applewhite, No. 1-13-1549 (2014) (unpublished
       summary order under Supreme Court Rule 23(c)).
¶7          Thereafter, the defendant filed the instant pro se postconviction petition. In it, he alleges
       that the mandatory 25-year firearm enhancement, as applied to him, violates the eighth
       amendment (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois
       Constitution (Ill. Const. 1970, art. I, § 11). He contends that the mandatory minimum sentence
       for first degree murder and the mandatory firearm enhancement, which resulted in his
       mandatory minimum sentence of 45 years’ imprisonment, violate the constitutional principles
       announced in the United States Supreme Court’s decisions in Miller v. Alabama, 567 U.S. ___,
       132 S. Ct. 2455 (2012), Graham v. Florida, 560 U.S. 48 (2010), and Roper v. Simmons, 543
       U.S. 551 (2005).
¶8          In June 2014, the trial court dismissed the defendant’s pro se postconviction petition at the
       first stage as “frivolous and patently without merit” because, unlike Miller, Graham, and
       Roper, the defendant did not receive the “harshest possible penalty” of natural life
       imprisonment. The court also noted that the defendant’s sentence did not violate the eighth
       amendment or the proportionate penalties clause because the sentencing court was able to
       consider the defendant’s “age and other circumstances.” This timely appeal followed.
¶9          A postconviction proceeding is not an appeal of the underlying judgment; rather, it is a
       collateral proceeding where the defendant may challenge a conviction or sentence for
       violations of constitutional rights. People v. Tate, 2012 IL 112214, ¶ 8. In a noncapital case,
       the Act creates a three-stage procedure for postconviction relief. People v. Harris, 224 Ill. 2d
       115, 125 (2007). At stage one, the trial court, without input from the State, examines the
       petition to determine whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1
       (West 2012). A petition is frivolous or patently without merit only if it has “no arguable basis
       either in law or in fact.” Tate, 2012 IL 112214, ¶ 9. This is true if the petition is based on an
       indisputably meritless legal theory, such as one that is completely contradicted by the record,
       or a fanciful factual allegation. People v. Hodges, 234 Ill. 2d 1, 16-17 (2009). If the petition is
       frivolous or patently without merit, the trial court must dismiss it. 725 ILCS 5/122-2.1(a)(2)
       (West 2014). Otherwise, the proceedings move on to the second stage. Harris, 224 Ill. 2d at
       126. We review de novo a trial court’s first-stage dismissal of a postconviction petition. Tate,
       2012 IL 112214, ¶ 10.
¶ 10        The defendant in this case contends that the trial court erred in summarily dismissing his
       postconviction petition because he claims that his petition stated the gist of a constitutional
       claim. He argues that the 25-year mandatory firearm enhancement, as applied to a juvenile
       offender, violates the eighth amendment and the proportionate penalties clause because it
       deprives the trial court of the opportunity to make an individualized determination in
       sentencing the defendant by considering his age and culpability. We will address the
       defendant’s eighth amendment and proportionate penalties claims in turn.
¶ 11        The eighth amendment, applicable to the states through the fourteenth amendment
       (Kennedy v. Louisiana, 554 U.S. 407, 419 (2008)), provides that “[e]xcessive bail shall not be
       required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
       Const., amend. VIII. The cruel and unusual punishment clause prohibits “inherently barbaric


                                                    -3-
       punishments” as well as punishments that are disproportionate to the offense. Graham, 560
       U.S. at 59.
¶ 12       In support of his argument that the 25-year mandatory firearm enhancement violates his
       eighth amendment rights, the defendant cites the United States Supreme Court’s decisions in
       Miller, Roper, and Graham. In Miller, 567 U.S. at ___, 132 S. Ct. at 2469, the Supreme Court
       held that the eighth amendment prohibits a sentencing scheme that mandates life in prison
       without the possibility of parole for juvenile offenders, including those convicted of homicide.
       The Court stated that a judge must have the opportunity to look at all of the circumstances
       involved before determining that life without the possibility of parole is the appropriate
       penalty. Id. at ___, 132 S. Ct. at 2469. In Roper, 543 U.S. at 568, the Supreme Court held that
       the eighth amendment prohibits the death penalty for juvenile offenders. The Court reasoned
       that the “death penalty is reserved for a narrow category of crimes and offenders” and that
       “juvenile offenders cannot with reliability be classified among the worst offenders.” Id. at 569.
       And, in Graham, 560 U.S. at 74, 82, the Court held that the eighth amendment prohibits life
       sentences for juvenile offenders convicted of nonhomicide offenses. Significantly, however,
       both our supreme court “and the United States Supreme Court have closely limited the
       application of the rationale expressed in Miller, Roper, and Graham, invoking it only in the
       context of the most severe of all criminal penalties.” People v. Patterson, 2014 IL 115102,
       ¶ 110.
¶ 13       In People v. Banks, 2015 IL App (1st) 130985, a division of this court rejected arguments
       similar to those made by the defendant in the present case. As in this case, the defendant in
       Banks was a juvenile convicted of first degree murder. Id. ¶ 2. And, like the defendant in this
       case, the defendant in Banks argued that the application of the firearm enhancement statute to
       him was unconstitutional under Miller, Roper, and Graham because it resulted in a mandatory
       minimum sentence of 45 years’ imprisonment. Id. ¶ 18. In rejecting this argument, the court
       explained:
                    “Unlike those cases, which involved the imposition of the death penalty (Roper)
               and a mandatory life sentence without the possibility of parole (Graham and Miller)
               without allowing the trial court any discretion in sentencing, the trial court in the instant
               case was able to consider defendant’s age and culpability in sentencing defendant. The
               trial court had the discretion to impose a sentence between 45 and 85 years.” Id. ¶ 19.
¶ 14       Similarly, here, the defendant did not receive the “harshest possible penalty” nor was he
       subjected to a sentencing scheme which mandated a sentence of life in prison without parole.
       Instead, unlike in Miller, Roper, and Graham, the defendant in this case negotiated and agreed
       to a 45-year sentence for first degree murder. And, consistent with Miller’s requirement that a
       sentencing authority retain some discretion to consider a juvenile’s youth before imposing a
       severe sentence, the trial judge in this case had discretion to accept the defendant’s fully
       negotiated plea agreement and impose the agreed upon sentence of 45 years’ imprisonment.
       See People v. Henderson, 211 Ill. 2d 90, 103 (2004) (“A circuit court may reject a plea in the
       exercise of sound judicial discretion.”); Ill. S. Ct. R. 402(d) (eff. July 1, 1997) (it is within the
       discretion of the circuit court to approve or reject a defendant’s guilty plea). As a consequence,
       we are not persuaded by the defendant’s argument that his rights under the eighth amendment
       were violated when he pled guilty to first degree murder in exchange for the statutory
       minimum sentence of 45 years’ imprisonment.


                                                     -4-
¶ 15        In reaching this conclusion, we reject the defendant’s reliance on recent changes in Illinois
       sentencing law. The defendant cites section 5-4.5-105 of the Unified Code of Corrections
       (Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105)), which allows
       sentencing judges to consider certain factors that distinguish juvenile offenders from adult
       offenders and to exercise discretion when deciding to impose a statutory 25-years-to-life gun
       enhancement for juvenile offenders. We note, however, section 5-4.5-105 only applies to
       offenses committed “on or after the effective date”—i.e., January 1, 2016. See People v.
       Hunter, 2016 IL App (1st) 141904, ¶ 44 (holding that section 5-4.5-105 applies prospectively
       only). Since the defendant committed the instant offense in August 2001, well before the
       effective date of section 5-4.5-105, the recent change in Illinois’s sentencing law does not
       apply in this case.
¶ 16        Finally, we note that during the pendency of this appeal, our supreme court decided People
       v. Reyes, 2016 IL 119271, which involved a juvenile that received a mandatory de facto life
       sentence. In Reyes, defendant received a legislatively mandated sentence of 97 years, with the
       earliest opportunity for release after 89 years. Id. ¶ 10. Consequently, the 16-year-old
       defendant would remain in prison until at least the age of 105. Id. Accepting the State’s
       concession, the supreme court held that the sentence imposed violated the principles
       established in Miller as the defendant would “most certainly not live long enough to ever
       become eligible for release.” Id. In other words, the supreme court found defendant’s sentence
       unconstitutional because the sentencing scheme mandated the sentence, which aggregated to a
       de facto life sentence. We find Reyes distinguishable for two reasons. First, we reiterate that
       the defendant here negotiated and agreed to his sentence. Second, his 45-year sentence does
       not amount to a de facto life sentence, as he will be eligible for release at the age of 62.
¶ 17        Therefore, the mandatory 25-year firearm enhancement, as applied to the defendant’s
       sentence, did not violate his eighth amendment rights.
¶ 18        We next consider whether the mandatory 25-year firearm enhancement, as applied to the
       defendant, violates the proportionate penalties clause of the Illinois Constitution. That clause
       provides that “[a]ll 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. To succeed in a proportionate penalties claim, a defendant must show either that the
       penalty is “ ‘cruel, degrading, or so wholly disproportionate to the offense committed as to
       shock the moral sense of the community,’ ” or that another offense containing the same
       elements has a different penalty. People v. Sharpe, 216 Ill. 2d 481, 487 (2005) (quoting People
       v. Moss, 206 Ill. 2d 503, 522 (2003)).
¶ 19        In Sharpe, 216 Ill. 2d at 525, the supreme court upheld the constitutionality of the firearm
       enhancement statute against a proportionate penalties clause challenge. The court explained:
                 “it would not shock the conscience of the community to learn that the legislature has
                 determined that an additional penalty ought to be imposed when murder is committed
                 with a weapon that not only enhances the perpetrator’s ability to kill the intended
                 victim, but also increases the risk that grievous harm or death will be inflicted upon
                 bystanders.” Id.
       Thus, our supreme court determined that subjecting defendants guilty of crimes involving
       firearms to substantial mandatory minimum sentences does not shock the moral sense of the
       community. See People v. Pace, 2015 IL App (1st) 110415, ¶ 141.


                                                   -5-
¶ 20        Nevertheless, the defendant asserts that his sentence shocked the moral sense of the
       community because he was 17 years old at the time of the shootings and the 25-year firearm
       enhancement prevented the trial court from considering the defendant’s age and culpability.
       He cites People v. Miller, 202 Ill. 2d 328 (2002), and People v. Gipson, 2015 IL App (1st)
       122451, for support.
¶ 21        In Miller, 202 Ill. 2d at 341, the Illinois Supreme Court held that the juvenile defendant’s
       sentence to life without parole violated the proportionate penalties clause because the sentence
       “grossly distort[ed] the factual realities of the case and [did] not accurately represent [the]
       defendant’s personal culpability.” In so finding, our supreme court determined that, when
       combined, the automatic transfer statute, the accountability statute, and the multiple murder
       sentencing statute prevented the trial court from considering the actual facts of the
       crime—including the defendant’s age and culpability at the time of the offense. Id. (identifying
       the defendant as “the least culpable offender imaginable,” in that he was 15 years old at the
       time and agreed to serve as a lookout when approached by two individuals who, within one
       minute, open fired, killing two people). In Gipson, 2015 IL App (1st) 122451, ¶ 75, this court
       reversed a 52-year prison term of a juvenile defendant convicted of attempted murder, finding
       the sentence violated the proportionate penalties clause because the sentence failed to consider
       the defendant’s age and mental disorders. The case was remanded with instructions to conduct
       a retroactive fitness hearing and, in the event the defendant was found fit to stand trial, he
       should be resentenced without applying the firearm enhancement. Id. ¶¶ 38, 69, 78.
¶ 22        We find Miller and Gipson distinguishable as both cases limited their holdings to the facts
       of those cases. In this case, unlike Miller and Gipson, the defendant did not serve as a lookout,
       merely having one minute to contemplate his actions before the offense. Nor was there any
       question as to his mental fitness. Rather, the factual basis for the defendant’s guilty plea
       demonstrated that he approached the victim as he was crouched on the ground playing dice and
       shot at him multiple times before striking and killing him. And, although the defendant’s
       sentence includes a mandatory 25-year firearm enhancement, we note that he negotiated and
       agreed to that sentence. As previously discussed, the trial court exercised its discretion by
       accepting the defendant’s guilty plea and sentencing him to the agreed upon term of 45 years’
       imprisonment. As such, the defendant’s sentence in this case did not violate the proportionate
       penalties clause of the Illinois Constitution.
¶ 23        Finally, we are not persuaded by the defendant’s reliance on an Iowa Supreme Court case
       finding that all mandatory minimum juvenile sentences are unconstitutional. See State v. Lyle,
       854 N.W.2d 378, 400 (Iowa 2014). The decisions of foreign courts are not binding on Illinois
       courts (People v. Reese, 2015 IL App (1st) 120654, ¶ 70), and we are required to follow our
       supreme court precedent, which has interpreted Miller, Roper, and Graham to apply “only in
       the context of the most severe of all criminal penalties.” Patterson, 2014 IL 115102, ¶ 110.
¶ 24        Based on the foregoing, we conclude that the defendant’s sentence, which included a
       mandatory 25-year firearm enhancement, did not violate the eighth amendment or the
       proportionate penalties clause of the Illinois Constitution. Accordingly, the trial court did not
       err in dismissing his postconviction petition as frivolous and patently without merit.
¶ 25        For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 26      Affirmed.


                                                   -6-
