Illinois Official Reports

Appellate Court

People v. Johnson, 2021 IL App (3d) 180357

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

PHILIP JOHNSON, Defendant-Appellant.

District & No. Third District 

No. 3-18-0357

Filed February 26, 2021

Decision Under 

Review

Appeal from the Circuit Court of Tazewell County, No. 94-CF-382; 

the Hon. Michael D. Risinger, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on

Appeal

James E. Chadd, Peter A. Carusona, and Jay Wiegman, of State 

Appellate Defender’s Office, of Ottawa, for appellant.

Stewart J. Umholtz, State’s Attorney, of Pekin (Patrick Delfino, 

Thomas D. Arado, and Stephanie Raymond, of State’s Attorneys 

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with 

opinion.

Justice Lytton concurred in the judgment and opinion.

Justice Schmidt dissented, with opinion.
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OPINION

¶ 1 The defendant, Philip Johnson, appeals the second-stage dismissal of his successive 

postconviction petition. The defendant argues that his constitutional rights were violated where 

he received a de facto life sentence as a juvenile offender.

¶ 2 I. BACKGROUND

¶ 3 The defendant and his older sister, Angela S. Oakes, were charged by information with two 

counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 1994)) for killing their father, James 

T. Johnson, and their father’s girlfriend, Frances M. Buck. The defendant was 16 years old at 

the time; Oakes was 20 years old. The defendant entered into a negotiated plea agreement, 

pleading guilty to one count of first degree murder for killing Buck and one count of the lesser 

offense of second degree murder (id. § 9-2(a)(2)) for killing his father. In exchange for the 

plea, the State agreed to recommend a total sentence of 110 years’ imprisonment, which 

included consecutive terms of 90 years for first degree murder and 20 years for second degree 

murder.

¶ 4 At the plea hearing, the State advised the court that, if the defendant proceeded to trial and 

was convicted on the original charges, the defendant would be sentenced to a mandatory 

sentence of natural life imprisonment without parole. However, the State then explained that 

under the charges he was pleading guilty to, the normal sentencing range for first degree 

murder would be 20 to 60 years’ imprisonment, but the term would be extended to 100 years 

due to the brutal and heinous nature of the killing. For second degree murder, the State 

explained that defendant faced a range of 4 to 20 years’ imprisonment. 

¶ 5 The court admonished the defendant, asked the defendant some questions, and read the 

charges and the possible penalties to the defendant. The State then presented the factual basis 

for the plea, stating that on July 20, 1994, the dead bodies of James and Buck were discovered 

in their bed by James’s ex-wife. An autopsy revealed the cause of death for both victims to be 

gunshot wounds to their heads. During a police interview, the defendant admitted to killing his 

father and Buck, stating that, at the time of the murder, the defendant and Oakes were overcome 

by their father’s physical and emotional abuse.1 The defendant went into his father’s room 

while he slept and shot his father in the head with a .22-caliber, single-shot rifle. Buck awoke 

from the sound of the shot, and the defendant shot Buck in the head because she saw him. He 

then left the residence and disposed of the gun.

¶ 6 The court found the defendant’s guilty plea knowingly and voluntarily made and found 

that a factual basis existed for the plea. The court asked if, in light of the plea agreement, the 

defense waived evidence in mitigation and the preparation of a presentence investigation 

report. Defense counsel stated that it did. The court asked the State if it had information 

regarding the defendant’s criminal history. The State responded that it was not aware that the 

defendant had any prior criminal history. The court then accepted the plea, sentencing the 

defendant, per the terms of the plea, to 90 years’ imprisonment for the first degree murder of 

Buck and a consecutive sentence of 20 years’ imprisonment for the second degree murder of 

his father. The court’s written order found the defendant eligible for the extended-term 

1

Oakes received an aggregate 60-year sentence for the first degree murder of Buck and second 

degree murder of her father.
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sentence for the murder of Buck due to the exceptionally brutal and heinous nature of the 

killing. The court also noted that the defendant was eligible for good conduct credit, but the 

Department of Corrections alone would determine whether he received that credit.

¶ 7 The defendant filed his first postconviction petition in 1999. The trial court denied the 

petition, and this court granted defense counsel’s motion for leave to withdraw pursuant to 

Pennsylvania v. Finley, 481 U.S. 551 (1987). People v. Johnson, No. 3-06-0868 (2008) 

(unpublished order under Illinois Supreme Court Rule 23).

¶ 8 In 2017, the defendant filed an “expedited” motion for leave to file a successive 

postconviction petition, which is the subject of this appeal. The court granted the defendant 

leave to file the petition and appointed counsel. Counsel amended the petition to allege the 

defendant’s constitutional rights were violated under Miller v. Alabama, 567 U.S. 460 (2012), 

where he was sentenced to a de facto life sentence without consideration of his youth and 

attendant circumstances. 

¶ 9 Attached to the petition were several exhibits, including a psychological evaluation and 

report made in preparation for trial, school records, and statements from the defendant’s 

family. The evaluation and accompanying exhibits showed that the defendant suffered from 

learning disabilities and had a verbal IQ of 77, which placed him in the borderline range of 

intellectual functioning. The defendant repeated two grades twice in school. The psychological 

report summarized statements given by multiple witnesses regarding the long-term physical 

and emotional abuse the defendant and Oakes received at the hand of their father. James was 

described as a “mean drunk” who shot several family pets in front of the defendant and Oakes, 

hit the defendant daily with his hands and other objects, such as a screwdriver, and was very 

controlling. James’s nickname for the defendant was “ ‘Stumb,’ stuck between stupid and 

dumb.” James once broke the defendant’s arm. He also limited the defendant’s social 

interactions. The defendant had sought help from authorities, including teachers and the police, 

to no avail. The psychologist noted that the defendant “presented as intensely angry about how 

his father had treated him yet tearful and deeply remorseful about his actions.” The defendant 

told the psychologist that he did not think about the consequences of the shooting at the time 

but only thought about living a life without the physical and emotional abuse. The defendant 

became tearful when speaking with the psychologist, stating that he would take it back if he 

could. Based on the results of several psychological tests, the psychologist opined that the 

defendant had a strength in visual perception and visual association, which is “seen in 

individuals growing up in a hostile social environment.” Moreover, the psychologist stated that 

the test scores suggested that the defendant acted under extreme duress and followed a pattern 

“common in individuals who have been subjected to physical abuse, to demeaning evaluations, 

and to excessive familial control preventing normal development, socialization, and 

achievement.” The psychologist found that the defendant suffered from attention deficit 

hyperactivity disorder and possessed a limited capacity to think flexibly, weigh alternatives, 

and anticipate consequences. The psychologist opined that the defendant’s failed attempts to 

stop his father’s abuse by seeking help, coupled with his inability to concentrate and control 

himself, likely caused the defendant to believe killing his father was his only recourse. 

¶ 10 The State filed a motion to dismiss the petition, arguing that Miller did not apply because 

the defendant did not receive a mandatory life sentence or a de facto life sentence but a 

discretionary sentence that the defendant agreed to and the court found appropriate. The court 

granted the motion and dismissed the petition, finding that the constitutional issues the 
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defendant raised could not be established since he entered into a fully negotiated guilty plea.

¶ 11 II. ANALYSIS

¶ 12 On appeal, the defendant contends the trial court erred when it dismissed his successive 

postconviction petition at the second stage of the proceedings. A postconviction proceeding is 

a collateral proceeding that allows review of constitutional issues that were not, and could not 

have been, adjudicated on direct appeal. People v. Ortiz, 235 Ill. 2d 319, 328 (2009). The PostConviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) generally contemplates 

the filing of only one postconviction petition. Ortiz, 235 Ill. 2d at 328. However, a defendant 

may seek leave of court to file a successive postconviction petition. 725 ILCS 5/122-1(f) (West 

2016). Where, as here, a defendant is granted leave to file a successive postconviction petition, 

the petition is effectively advanced to the second stage of postconviction proceedings. See 

People v. Wrice, 2012 IL 111860, ¶ 90; People v. Almodovar, 2013 IL App (1st) 101476, ¶ 81. 

At the second stage, the trial court must determine “whether the petition and any accompanying 

documentation make a substantial showing of a constitutional violation.” People v. Edwards, 

197 Ill. 2d 239, 246 (2001). On appeal, our review is de novo. People v. Lee, 2016 IL App (1st) 

152425, ¶ 50.

¶ 13 The defendant’s petition alleged that the de facto life sentence he received as part of his 

fully negotiated guilty plea is unconstitutional under the eighth amendment of the United States 

Constitution (U.S. Const., amend. VIII). Specifically, the defendant claims that the trial court 

failed to consider his youth and its attendant circumstances prior to accepting his plea and 

imposing the agreed-upon sentence, based on the United States Supreme Court’s decision in 

Miller, 567 U.S. 460, and its progeny. 

¶ 14 The eighth amendment of the United States Constitution prohibits cruel and unusual 

punishment. U.S. Const., amend. VIII. The foundational cases of Roper v. Simmons, 543 U.S. 

551, 569-73 (2005) (prohibiting capital sentences for juveniles who commit murder), Graham 

v. Florida, 560 U.S. 48, 82 (2010) (prohibiting mandatory life sentences for juveniles who 

commit nonhomicide offenses), Miller, 567 U.S. at 489 (prohibiting mandatory life sentences 

for juveniles who commit murder), and Montgomery v. Louisiana, 577 U.S. 190, 209-10 (2016) 

(finding that Miller applies retroactively), collectively hold that juveniles are constitutionally 

different from adults for purposes of sentencing and establish that additional sentencing 

protections are thus necessary. 

¶ 15 The Illinois Supreme Court has since considered the effects of these cases. In People v. 

Holman, 2017 IL 120655, ¶¶ 37, 40, the court held that both mandatory and discretionary life 

sentences for juveniles violate the eighth amendment unless the sentencing court considers the 

defendant’s youth and its attendant characteristics as mitigation. The rare juvenile offender 

may still be sentenced to life imprisonment, “but only if the trial court determines that the 

defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable 

corruption beyond the possibility of rehabilitation.” Id. ¶ 46. The court may make this 

determination only after considering the Miller factors, which include, but are not limited to: 

“(1) the juvenile defendant’s chronological age at the time of the offense and any 

evidence of his particular immaturity, impetuosity, and failure to appreciate risks and 

consequences; (2) the juvenile defendant’s family and home environment; (3) the 

juvenile defendant’s degree of participation in the homicide and any evidence of 

familial or peer pressures that may have affected him; (4) the juvenile defendant’s 
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incompetence, including his inability to deal with police officers or prosecutors and his 

incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for 

rehabilitation.” Id.

See also id. ¶ 44. Our legislature has since codified the Miller factors into a set of nine factors 

the court must consider when sentencing a juvenile defendant. See 730 ILCS 5/5-4.5-105 

(West 2018). These prior holdings also extend to de facto life sentences, which the court in 

People v. Buffer, 2019 IL 122327, ¶¶ 40-41, defined as a sentence greater than 40 years. 

¶ 16 Before turning to the merits of the defendant’s petition, we must address the State’s 

argument that the defendant waived this issue by pleading guilty. “[W]aiver is the voluntary 

relinquishment of a known right.” People v. Phipps, 238 Ill. 2d 54, 62 (2010). When 

determining whether a legal claim has been waived, a reviewing court must examine the 

particular facts and circumstances of the case and construe waiver principles liberally in favor 

of the defendant. Id.

¶ 17 The State bases its argument on the rule of law espoused in People v. Jackson, 199 Ill. 2d 

286 (2002), and relied on in People v. Townsell, 209 Ill. 2d 543, 545 (2004), that a guilty plea 

waives all constitutional claims. In both cases, the question before our supreme court was 

whether a defendant waived the right to raise a claim pursuant to Apprendi v. New Jersey, 530 

U.S. 466 (2000), by pleading guilty. Jackson, 199 Ill. 2d at 296; Townsell, 209 Ill. 2d at 545. 

The Jackson court stated that, under Apprendi, “[e]very fact necessary to establish the range 

within which a defendant may be sentenced is an element of the crime and thus falls within the 

constitutional rights of a jury trial and proof beyond a reasonable doubt.” Jackson, 199 Ill. 2d 

at 296. The court stated that those were the exact rights that a defendant waived by pleading 

guilty and, therefore, they could not be heard on appeal from a guilty plea. Id. In doing so, the 

court stated, “Apprendi did not deal with novel constitutional rights. Rather, the Court was 

concerned with the applicability and reach of the well-established constitutional rights to a jury 

trial and proof beyond a reasonable doubt, rights which a guilty plea is specifically designed 

to waive.” Id. at 302.

¶ 18 Jackson and Townsell are not applicable here. Apprendi concerns the State’s requirement 

to prove an element of the crime, which a defendant explicitly waives when pleading guilty. 

However, unlike Apprendi, Miller did set forth a “novel constitutional right[ ].” Id. According 

to the United States Supreme Court in Montgomery, 577 U.S. at 206-12, Miller announced a 

new substantive rule of constitutional law. Montgomery stated, “Miller *** did more than 

require a sentencer to consider a juvenile offender’s youth before imposing life without parole; 

it established that the penological justifications for life without parole collapse in light of ‘the 

distinctive attributes of youth.’ ” Id. at 208 (quoting Miller, 567 U.S. at 472). The rule 

announced in Miller carries a significant risk that the vast majority of juvenile offenders face 

a punishment that the law cannot impose, which is why it applies retroactively. Id.

¶ 19 The Supreme Court of Virginia in Jones v. Commonwealth, 795 S.E.2d 705, 714-15 (Va. 

2017), held that a juvenile who entered into a negotiated plea agreement waived the right to 

raise a Miller challenge. However, our supreme court in Holman, 2017 IL 120655, ¶ 40, looked 

at this case with disfavor, stating that it gave “insufficient regard to the Supreme Court’s farreaching commentary about the diminished culpability of juvenile defendants, which is neither 

crime- nor sentence-specific.” As the Miller Court stated, “it is the odd legal rule that does not

have some form of exception for children.” (Emphasis in original.) Miller, 567 U.S. at 481. 

The three-justice dissent in Jones also disagreed with the idea that a plea agreement can act as 
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a waiver to all constitutional challenges, noting, as an example, that the Supreme Court has 

held that the two-part Strickland v. Washington, 466 U.S. 668 (1984), test applies to challenges 

based on the right to effective assistance of counsel. Jones, 795 S.E.2d at 726 (Powell, J., 

dissenting, joined by Goodwyn and Mims, JJ.). 

¶ 20 Here, the defendant pled guilty before Miller was decided. As stated above, Miller set forth 

a novel constitutional right. The defendant could not have voluntarily relinquished a right that 

was not available to him at the time that he plead guilty. Stated another way, we find that the 

defendant could not have waived the right to raise this issue because he pled guilty without the 

benefit of Miller and its progeny. 

¶ 21 Because we find that the defendant did not waive this issue, we next consider the merits of 

the defendant’s Miller claim. To prevail on a Miller claim, a defendant who committed the 

offense while a juvenile must show (1) he or she was subject to a life sentence, whether 

mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider 

youth and its attendant characteristics, as set forth in Holman. Buffer, 2019 IL 122327, ¶ 27.

¶ 22 Here, the defendant undoubtedly meets both requirements. He was sentenced to a de facto 

life sentence as his 110-year sentence was greater than 40 years. See id. ¶¶ 40-41. Moreover, 

the record does not show that the court considered the defendant’s youth and its attendant 

characteristics when sentencing the defendant. Therefore, the defendant’s sentence violates the 

eighth amendment, and we vacate his sentence and remand for a new sentencing hearing. See

id. ¶¶ 46-47. Our supreme court’s recent decision in People v. Lusby, 2020 IL 124046, does 

not change our analysis. On remand, the defendant “is entitled *** to be sentenced under the 

scheme prescribed by section 5-4.5-105 of the Unified Code of Corrections.” Buffer, 2019 IL 

122327, ¶ 47; 730 ILCS 5/5-4.5-105 (West 2018). Since “any inquiry into the Miller factors is 

backwards-looking” (Holman, 2017 IL 120655, ¶ 47), we note that the psychological report 

and other exhibits prepared before the defendant’s plea and attached to his petition will be 

helpful when considering the necessary factors. 

¶ 23 The dissent states that the proper remedy is not a new sentencing hearing but remand for 

the defendant to withdraw his guilty plea. We disagree. Not only did neither party raise this 

issue, the State specifically conceded that, should we accept the defendant’s argument, “the 

proper remedy is to remand this matter for a new sentencing hearing.” We see no reason not 

to accept the State’s concession. 

¶ 24 In coming to this conclusion, we agree with the dissent’s contention that the United States 

and Illinois Supreme Courts have yet to consider the question of whether Miller applies to fully 

negotiated plea agreements. However, we find support for our decision to apply Miller here 

from the caselaw itself. It has been consistently held that juveniles are more vulnerable to 

negative influences and pressure from family and peers, impetuous, and unable to appreciate 

the risks and consequences of their actions. Miller, 567 U.S. at 471; Holman, 2017 IL 120655, 

¶ 35. Life sentences, “ ‘ignore[ ] that [a defendant] might have been charged and convicted of 

a lesser offense if not for incompetencies associated with youth—for example, his inability to 

deal with police officers or prosecutors (including on a plea agreement) or his incapacity to 

assist his own attorneys.’ ” Buffer, 2019 IL 122327, ¶ 19 (quoting Miller, 567 U.S. at 477-78). 

These characteristics are illustrated, here, with the defendant’s willingness to agree to a 

sentence of 110 years. There is no difference between 110 years and the natural life sentence 

that the defendant faced, but this may not have been fully appreciated or comprehended by a 

16-year-old. Moreover, the sentence shows the defendant’s inability to deal with prosecutors 
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and vulnerability to outside pressure and influence.

¶ 25 III. CONCLUSION

¶ 26 The judgment of the circuit court of Tazewell County is reversed, and the cause is 

remanded for resentencing.

¶ 27 Reversed and remanded with directions.

¶ 28 JUSTICE SCHMIDT, dissenting:

¶ 29 The majority finds defendant’s de facto life sentence unconstitutional under the eighth 

amendment. Defendant’s conviction and sentence arose from a fully negotiated plea. This has 

significant consequences.

¶ 30 Neither the United States Supreme Court nor the Illinois Supreme Court has extended the 

holding in Miller to sentences that result from a fully negotiated plea. To the contrary, under 

Illinois law, defendant waived any claim of a constitutional error by virtue of his fully 

negotiated plea. Defendant here entered into a plea agreement in which he stipulated to a 

de facto life sentence. In so doing, defendant relinquished any rights to challenge 

nonjurisdictional errors or irregularities, including constitutional errors. People v. Townsell, 

209 Ill. 2d 543, 545 (2004) (citing People v. Peeples, 155 Ill. 2d 422, 491 (1993)). A guilty 

plea “represents a break in the chain of events that has preceded it,” and a defendant who has 

pled guilty may not claim his constitutional rights were violated before he entered his plea. 

People v. Wendt, 283 Ill. App. 3d 947, 956-57 (1996) (citing Tollet v. Henderson, 411 U.S. 

258, 267 (1973)). Not only did defendant waive his right to challenge his sentence, he also 

affirmatively waived his right to present evidence in mitigation and the preparation of a 

presentence investigation report. As a result, defendant waived any claim that the trial court 

should have considered his youth and its attendant circumstances in imposing the agreed upon 

sentence.

¶ 31 The majority reaches a different conclusion on the basis that defendant’s argument involves 

a novel constitutional right. According to the majority, a guilty plea only waives those 

constitutional rights that are known to defendant at the time of the plea. As Miller was not 

decided prior to the plea, the majority concludes that defendant could not have waived his 

constitutional claim based on Miller. The flaw in the majority’s logic is that, even if Miller and 

its progeny created a novel constitutional right, none of those decisions have any application 

here. Not one of these cases hold that a sentencing court is required to consider a juvenile 

defendant’s youthful characteristics prior to accepting a fully negotiated guilty plea. 

Consequently, Miller and its progeny did not create a novel constitutional right that applies to 

defendant’s case. As such, defendant waived this argument by virtue of his fully negotiated 

plea.

¶ 32 Defendant is not entitled to a new sentencing hearing based on the procedural posture of 

this appeal. “[F]ollowing the entry of judgment on a negotiated guilty plea, even if a defendant 

wants to challenge only his sentence, he must move to withdraw the guilty plea and vacate the 

judgment so that, in the event the motion is granted, the parties are returned to the status quo.” 

People v. Evans, 174 Ill. 2d 320, 332 (1996). Conversely, a defendant who enters a negotiated 

plea cannot attempt to unilaterally reduce his sentence while holding the State to its part of the 
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agreement. Id. at 327. In People v. Johnson, 2019 IL 122956, ¶ 47, our supreme court held that 

where a plea agreement includes sentencing concessions from the State or the dismissal of 

charges, defendant’s only postplea recourse is to move to withdraw the plea. Defendant does 

not adopt this approach, likely because the process would result in the reinstatement of the first 

degree murder charge the State agreed to reduce in exchange for the plea.

¶ 33 A defendant may challenge his sentence as void without moving to withdraw a fully 

negotiated plea in two narrow instances: (1) where a defendant claimed the trial court lacked 

personal or subject-matter jurisdiction (People v. Price, 2016 IL 118613, ¶ 31) and (2) where 

a defendant challenged the statute under which he was sentenced as facially unconstitutional 

and void ab initio (People v. Guevara, 216 Ill. 2d 533, 542-43 (2005)). Defendant’s as-applied 

sentencing challenge does not fall within either exemption. See People v. Thompson, 2015 IL 

118151, ¶ 32 (recognizing that the void ab initio doctrine does not apply to as-applied 

challenges). Consequently, to have the trial court consider his youthful characteristics for 

purposes of sentencing, defendant must move to withdraw his guilty plea—a plea that resulted 

in a sentence defendant himself approved as part of his fully negotiated agreement. 

¶ 34 The majority grants defendant a new sentencing hearing due to the State’s concession of 

the issue. However, the law is clear that defendant must move to withdraw his guilty plea. A 

party may waive an issue, but it cannot waive the law and this court is not required to accept 

the State’s concession. Beacham v. Walker, 231 Ill. 2d 51, 60-61 (2008). Neither the State nor 

defendant cite any direct authority holding that the proper remedy is to award a new sentencing 

hearing based on a Miller challenge in the context of a fully negotiated plea. To the extent the 

majority opinion accepts the State’s concession, the opinion should be limited to the facts of 

this case. Consequently, unless and until our supreme court holds otherwise, the majority’s 

decision to award a new sentencing hearing should be limited to the State’s failure to argue the 

issue.

¶ 35 Finally, although defendant does not seek to withdraw his plea directly, he generally argues 

that his plea was involuntary. To the extent defendant suggests that facing the possibility of a 

mandatory life sentence rendered his plea involuntarily made, the trial court admonished 

defendant prior to accepting his plea. The court found defendant’s plea to be knowingly and 

voluntarily made and accepted his plea. His plea was voluntarily and intelligently made. A plea 

is not invalid simply because “the maximum penalty then assumed applicable has been held 

inapplicable in subsequent judicial decisions.” Brady v. United States, 397 U.S. 742, 757 

(1970). In other words, Miller’s holding does not affect the voluntariness of defendant’s plea.

¶ 36 We should affirm the trial court.