                                       2018 IL App (3d) 140723-B

                                Opinion filed March 26, 2018
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2018

     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. 

            Justice Lytton concurred in the judgment and opinion. 

            Justice Wright concurring in part and dissenting in part, with 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. 460 (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.

¶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,

     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


     1
       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 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:

                        “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



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                      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. 460. 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

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

       defendant’s postconviction petition is untimely. We affirmed in an opinion filed on April 25,




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       2016. The supreme court issued a supervisory order on November 22, 2017, directing us to

       consider the effect of People v. Holman, 2017 IL 120655, on defendant’s Miller claim.

¶ 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. Id. § 122-5. 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

       (Id. § 122-1(c)), 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.




                                                        6

       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. We do not believe that Holman is relevant to the timeliness issue.

¶ 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. 460. 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, 577 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 477. 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

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



                                                        7

       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. Supervisory Order

¶ 27          In November 2017, the supreme court issued a supervisory order vacating our prior

       judgment and directing us to review defendant’s Miller claim in light of People v. Holman, 2017

       IL 120655. We note that neither the supreme court’s supervisory order nor Holman requires us to

       review whether defendant timely filed his petition. We do not believe that defendant’s Miller

       claim affects our ultimate judgment. Nonetheless, we reviewed it and now find that Holman

       supports our original opinion.

¶ 28          In Holman, the supreme court held that courts must consider minor defendants’ youth and

       its “attendant characteristics” before imposing a discretionary life sentence. Holman, 2017 IL

       120655, ¶ 46. These characteristics include the defendant’s age and maturity level, family and

       home environment, degree of participation in the crime and susceptibility to peer pressure,

       incompetence, and prospects for rehabilitation. Id.



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¶ 29          A jury found that Holman murdered an 82-year-old woman while burglarizing her home.

       The presentence investigation report (PSI) stated Holman’s age, and the attorneys highlighted his

       age during argument. Holman, 2017 IL 120655, ¶ 48. The PSI included three psychological

       reports; none of the reports indicated that Holman was “immature, impetuous, or unaware of

       risks.” Id. The reports concluded that he was mildly retarded and susceptible to peer pressure;

       however, his psychiatrist and the court found him competent. Id. The PSI also included

       Holman’s family background.

¶ 30          Based on the trial evidence, the court concluded that Holman was “intimately involved

       with the offense.” Id. The court came to this conclusion despite the parties’ disagreement as to

       whether Holman or his cohort pulled the trigger. Finally, the court cited a parole officer’s report,

       which indicated that Holman had “no predilection for rehabilitation.” Id.

¶ 31          The supreme court found that the trial court considered evidence pertaining to the five

       attendant characteristics of youth during the sentencing hearing. The court also noted that

       “[Holman] had every opportunity to present evidence to show that his criminal conduct was the

       product of immaturity and not incorrigibility.” Id. ¶ 49. He presented no mitigating evidence.

       Based on the record, the court found that Holman’s sentence “passe[d] constitutional muster

       under Miller.” Id. ¶ 50.

¶ 32          In defendant’s case, his PSI and counsel clearly informed the trial court that defendant

       was 17 when he committed the offense. Defendant’s PSI discussed his family and personal

       background—defense counsel described defendant as “basically a creature of the streets” during

       the hearing. The PSI and counsel also discussed defendant’s prior family counseling “for a

       variety of family, social, sexual and educational problems.”




                                                        9

¶ 33             Some evidence in this case was even more aggravating than that in Holman. No evidence

       indicated that defendant was susceptible to peer pressure or unintelligent. Defendant

       unquestionably pulled the trigger. The PSI indicated that he obtained his general equivalency

       diploma (GED) and made no mention of low intelligence or cognitive disabilities.

¶ 34             As in Holman, defendant had every opportunity to present mitigating evidence to dispute

       this conclusion—he presented none. The trial court determined that defendant’s actions were not

       the product of immaturity. Knowing defendant’s age and background, the trial court opined that

       defendant “would kill for the joy of it and seriously does not care at all about a human life, it

       makes no difference to him whatsoever.” This statement clearly reflects the trial court’s opinion

       that defendant showed no potential for rehabilitation.

¶ 35             We see no dispositive difference between this case and Holman. In both cases, neither the

       trial evidence nor the PSI showed that the defendants were immature, unaware of risks, or

       incompetent. Both defendants were intimately involved in egregious crimes and showed no

       remorse or prospect of rehabilitation. After review, we still find that defendant’s natural life

       sentence “passes constitutional muster under Miller.” Id. Holman does not require a different

       result.

¶ 36                         IV. Defendant’s Proportionate Penalty Clause Argument

¶ 37             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




                                                        10 

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

       meritless.

¶ 38          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)

       (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.

¶ 39          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.

¶ 40          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)).

¶ 41                                            CONCLUSION

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



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¶ 43           Affirmed.

¶ 44           JUSTICE WRIGHT, concurring in part and dissenting in part:

¶ 45           Our supreme court’s decision in Holman restates that before any 17-year-old may be

       sentenced to a life sentence, the sentencing judge should consider the offender’s characteristics

       of youthfulness, if any. As stated by the majority, these factors include the defendant’s age and

       maturity level, family and home environment, degree of participation in the crime and

       susceptibility to peer pressure, incompetence, and prospects for rehabilitation.

¶ 46           The majority points out that the PSI submitted to the court advised the court of

       defendant’s age, home environment or lack thereof, and the family issues that recently

       necessitated some prior counseling. I agree with the majority’s conclusion regarding these three

       factors. I also agree that the record does not suggest defendant was incompetent.

¶ 47           However, I write separately to address two additional factors that the majority has

       overlooked. These factors, clearly considered by the trial court, include: (1) defendant’s degree

       of participation in the crime, and (2) defendant’s susceptibility to peer pressure. Unlike the

       majority, I conclude five factors related to youthfulness were considered by the trial court.

¶ 48           My conclusions are based on my review of the transcript of a combined sentencing

       hearing with Williams, defendant’s accomplice, and this defendant. It is very apparent that

       defendant’s degree of participation, as the trigger man, was heavily relied upon by the trial court.

       For example, during the same sentencing hearing, the court found that Williams “did not pull the

       trigger.”

¶ 49           In addition, with respect to defendant’s susceptibility to peer pressure, the court stated, I

       think we also have to conclude “Mr. Walker was more the leader in this incident.” Further, the

       court found it to be “clear” that there was a “strong possibility” that Williams “would not have



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       pulled the trigger in this incident as Mr. Walker did.” These comments clearly indicate the court

       considered Walker may have been responsible for exerting peer pressure on his accomplice to go

       through with the armed robbery.

¶ 50          In addition, based on the trial court’s remarks, I am hesitant to join the majority’s

       conclusion that the court considered Walker’s immaturity or lack thereof, without any reference

       to the trial court’s statement that supports this inference. For this reason, I respectfully dissent

       from the statement contained in paragraph 34 above.

¶ 51          In conclusion, I agree the record reveals the trial judge did consider many, if not most, of

       the factors that are characteristics of this teenaged mind before imposing a life sentence. For this

       reason, I concur in the majority’s conclusion that the sentencing hearing was fair even though

       defendant’s petition was not timely.




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