## Illinois Official Reports

Appellate Court

People v. Johnson

, 20 21 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.- 2

- 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. BACKGR OUND
¶ 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 ple a 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 explai ned 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 deg ree 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 presente d 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

- calib e r , 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 gui lty 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 co unsel 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.- 3

- 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 w hether 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 (198 7). 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 sent ence 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 trea ted 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 de fendant 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 assoc iation, 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 poss essed 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

hims elf, 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 s entence 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- 4

- defendant raised could not be established since he entere d 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 Post

Conviction Hearing Act (Act) (725 ILCS 5/122

- 1 et seq. (West 2016)) generally contemplates the filing of only one postconviction petiti on. 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 petiti on 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 th e 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 M iller 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 a ttendant 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

c orruption 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 offen se 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- 5

- 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 prosp ects 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 defenda nt 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 a nd 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 5 43, 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

constit utional 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 p lea. 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 do ubt, 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 gui lty. 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 li fe 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 la w 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 cha llenge. 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 far

reaching commentary about the diminished culpability of juvenile defendants, which i s 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- 6

- 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 ef fective 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 co uld 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 M iller 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 und oubtedly 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

charac teristics 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 I L 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 “a ny 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 necessa ry 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 acce pt 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 decisi on 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. Mi ller , 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 of ficers 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 agre e 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 inabi lity to deal with prosecutors- 7

- 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 Neith er 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 constitut ional 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 waiv ed 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 u pon

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 tim e 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 const itutional 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 proced ural 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 gran ted, 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- 8

- 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. Defenda nt 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 senten ced 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 v oid 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 defe ndant 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 m ay 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 hi s 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.