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                              Appellate Court                             Date: 2017.12.07
                                                                          08:57:40 -06'00'




                   People v. Evans, 2017 IL App (1st) 143562



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



District & No.    First District, Second Division
                  Docket No. 1-14-3562



Filed             August 15, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 94-CR-10738; the
Review            Hon. Clayton J. Crane, Judge, presiding.



Judgment          Affirmed.


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

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Miles J. Keleher, and Margaret M. Smith, Assistant State’s Attorneys,
                  of counsel), for the People.



Panel             PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                  with opinion.
                  Justices Neville and Mason concurred in the judgment and opinion.
                                               OPINION

¶1      Angelo Evans, who was given a 90-year prison sentence as a juvenile, is receiving
     day-for-day credit against his sentence and may serve only 45 years of imprisonment. Evans
     wants to take advantage of recent United States Supreme Court opinions holding that a
     juvenile’s youth and immaturity must be taken into account before he or she is sentenced to life
     imprisonment without the possibility of parole. He attempted to file a successive petition for
     postconviction relief, but the trial court denied him permission. We agree with the trial court.
     Evans is not serving either a life sentence or a “de facto” life sentence without the possibility of
     parole, and the recent eighth amendment decisions do not apply to him.

¶2                                         BACKGROUND
¶3       In 1996, then-17-year-old Angelo Evans was tried and convicted of attempted first degree
     murder and aggravated criminal sexual assault. The State alleged that Evans had sexually
     assaulted a family friend, K.R., then tried to kill K.R. by stabbing her multiple times and
     setting her head on fire. At sentencing, the trial court was presented with several reports
     detailing Evans’s tragic family history and mental health issues, and Evans’s counsel argued
     for leniency in sentencing. The trial court, however, found that no mitigating factors applied,
     describing Evans’s conduct as “shockingly evil.” The trial court sentenced Evans to an
     extended term of 60 years for the attempted murder and 30 years for the aggravated criminal
     sexual assault. The court also found that the sentences must run consecutively because Evans
     had inflicted severe bodily injury on K.R. while committing a Class X felony.
¶4       On direct appeal, Evans challenged his sentence as excessive, which this court rejected.
     See People v. Evans, No. 1-96-3368 (1997) (unpublished order under Supreme Court Rule 23).
     In 2002, Evans filed a postconviction petition alleging that his sentence violated Apprendi v.
     New Jersey, 530 U.S. 466 (2000), and this court affirmed the dismissal of that petition in
     People v. Evans, No. 1-01-1806 (2002) (unpublished order under Supreme Court Rule 23). In
     2009, Evans filed a petition for relief from judgment raising claims unrelated to his sentence;
     the petition was dismissed, and this court affirmed in People v. Evans, No. 1-09-2183 (2011)
     (summary order).
¶5       In 2014, Evans moved for leave to file a successive postconviction petition, arguing that
     his 90-year sentence violated the eighth amendment because he had been sentenced to life
     imprisonment for crimes committed while a juvenile. The trial court denied Evans leave to file
     the petition. Assuming that Evans had shown “cause” for his failure to raise the claim in his
     original postconviction petition, the trial court held that Evans could not show “prejudice”
     because the recent changes in juvenile sentencing law would not apply to his 90-year sentence.

¶6                                 STANDARD OF REVIEW
¶7       We review the trial court’s denial of leave to file a successive postconviction petition
     de novo. People v. Edwards, 2012 IL App (1st) 091651, ¶ 25.

¶8                                              ANALYSIS
¶9        Illinois prisoners are entitled to file only one postconviction petition without leave of the
     trial court. 725 ILCS 5/122-1(f) (West 2014). The trial court may grant leave to file a second or

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       “successive” postconviction petition only if the petitioner demonstrates “cause” for the failure
       to raise the claim in the initial petition and “prejudice” resulting from that failure. Id.; People v.
       Smith, 2014 IL 115946, ¶¶ 23-24.
¶ 10        Like the trial court (and the State in this appeal), we will assume that Evans has shown
       “cause” for his failure to raise the eighth amendment claim in his initial postconviction
       petition: at the time of that petition, the United States Supreme Court had not yet issued the
       opinions on which he bases his claim. The question remaining is whether Evans has shown
       “prejudice,” specifically, that the claimed constitutional error “so infected his trial that the
       resulting conviction violated due process.” People v. Morgan, 212 Ill. 2d 148, 154 (2004).
¶ 11        In recent years, the United States Supreme Court has grappled with the appropriateness of
       juvenile sentences, after determining that the eighth amendment prohibits certain harsh
       sentences for juveniles. It started with Roper v. Simmons, 543 U.S. 551 (2005), holding that the
       death penalty was unconstitutional for juvenile offenders. Then, in Graham v. Florida, 560
       U.S. 48 (2010), the Court held that sentencing juveniles convicted of non-homicide offenses to
       life imprisonment without the possibility of parole was unconstitutional. Miller v. Alabama,
       567 U.S. 460 (2012), followed, holding that life without parole is unconstitutional for juvenile
       offenders if the sentence is mandatory (while allowing such sentences if based on judicial
       discretion). Miller’s rule became retroactive in Montgomery v. Louisiana, 577 U.S. ___, ___,
       136 S. Ct. 718, 736 (2016), which also instructed that states could remedy a Miller violation by
       allowing juvenile offenders with mandatory life sentences to become eligible for parole. Id. at
       ___, 136 S. Ct. at 736. So far, the Supreme Court has reserved these rulings for the most severe
       punishments: death or life imprisonment.
¶ 12        Our supreme court took up a slightly different question in People v. Reyes, 2016 IL
       119271. Reyes, a juvenile, received a sentence based on mandatory minimums that was so long
       the supreme court held it “unsurvivable”: a total of 97 years, of which Reyes would be required
       to serve 89 years before he could become eligible for release. Id. ¶¶ 2, 9. The State conceded
       that Reyes would not live long enough to become eligible for release. Id. ¶ 10. Because Reyes
       had received a “mandatory, de facto life-without-parole sentence,” the supreme court vacated
       it under Miller, as the sentencing court had not been able to consider the mitigating factors of
       his youth, immaturity, and potential for rehabilitation. Id. ¶¶ 9, 10.
¶ 13        Perhaps inevitably, the next flood of cases to reach our appellate courts concerned what
       constitutes a “mandatory, de facto life-without-parole” sentence, as does Evans’s appeal. That
       determination controls whether the Miller line of cases assists him. So far, neither the United
       States Supreme Court nor the Illinois Supreme Court has held that sentencing courts need to
       hear or consider the mitigating factors of youth if the sentence is less than death, mandatory
       life without parole, or mandatory “de facto” life without parole. See People v. Buffer, 2017 IL
       App (1st) 142931, ¶ 56 (“under the holding in Reyes, if we were to find that the petitioner’s
       50-year sentence constitutes a de facto life sentence, we would be compelled to conclude that
       such a sentence, without consideration of the factors unique to juveniles, is unconstitutional as
       applied to him under the eighth amendment”).
¶ 14        We will first focus on the possibility of parole, rather than the length of the sentence as in
       Reyes. For Reyes (and most of the cases cited interpreting it), the defendant was required to
       serve the entire term of years, with no opportunity to demonstrate rehabilitation or for early
       release. Evans is luckier; he committed his crimes under different sentencing statutes and is
       eligible for day-for-day good conduct credit against his sentence. This sentencing scheme

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       means that he could be released after serving only 45 years of his sentence, at age 62. This
       alone takes Evans out of the Miller category, since he is not serving a sentence without the
       possibility of parole. (Indeed, allowing juveniles to become eligible for parole is precisely how
       the Montgomery Court recommended that states handle juvenile sentences after Miller.)
¶ 15        Evans acknowledges that he might not serve all 90 years but still argues that a 45-year
       sentence is de facto life because he is unlikely to survive it. Prison life is undoubtedly harsh.
       But Evans invites us into the weeds of actuarial tables, asking us to make a legal determination
       of his likely lifespan. We are in a poor position to make this prediction and decline to do so. As
       the court observed in People v. Jackson, 2016 IL App (1st) 143025, ¶ 57:
                “Is it simply a certain age upon release? If so, is it age 65, as defendant seems to argue
                for in his appellate brief, or 90? Should the age vary by ethnicity, race or gender? If we
                are going to consider more than age, what societal factors or health concerns should
                impact our assessment of a de facto life sentence[?] These are policy considerations
                that are better handled in a different forum.”
       It is one thing to say with some certainty, as the Reyes court did, that a defendant will not
       survive until release at age 105. It is quite another to overturn Evans’s sentence based on
       assumptions and speculation that he will not survive to age 62.
¶ 16        Evans’s potential 45-year sentence is not as long as other de facto life sentences. See Reyes,
       2016 IL 119271 (97-year sentence); People v. Morris, 2017 IL App (1st) 141117, ¶ 30
       (100-year sentence); People v. Sanders, 2016 IL App (1st) 121732-B, ¶¶ 25-27 (100-year
       sentence); People v. Nieto, 2016 IL App (1st) 121604, ¶ 42 (78-year sentence); People v.
       Decatur, 2015 IL App (1st) 130231, ¶ 18 (105-year sentence). The length of Evans’s sentence
       compares favorably with cases not involving a de facto life sentence. See Jackson, 2016 IL
       App (1st) 143025, ¶ 58 (50-year sentence); People v. Applewhite, 2016 IL App (1st) 142330,
       ¶ 16 (45-year sentence, allowing release at age 62); People v. Gipson, 2015 IL App (1st)
       122451, ¶¶ 65-67 (52-year sentence, allowing release at age 60); but see Buffer, 2017 IL App
       (1st) 142931 (50-year sentence equates to de facto life sentence); People v. Ortiz, 2016 IL App
       (1st) 133294, ¶ 24 (60-year sentence, allowing release at age 75, equates to de facto life
       sentence).
¶ 17        Evans then goes on to argue that even if he survives to be released in his mid-sixties, this
       sentence still runs afoul of the eighth amendment because he will “have little hope for a
       productive life.” Evans is asking us to stretch the holdings of both the United States Supreme
       Court and the Illinois Supreme Court. Neither court declares it unconstitutional for a person to
       spend his most meaningful, productive years in prison after committing a truly horrific crime.
       And Evans already challenged the length of his sentence as excessive on direct appeal; we will
       not hear a similar argument in a successive postconviction appeal.
¶ 18        Since Evans is not serving a de facto life sentence, the new protections elucidated by Miller
       and its progeny do not apply to him. So the trial court correctly ruled that Evans had not shown
       “prejudice” to justify filing a successive postconviction petition.

¶ 19      Affirmed.




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