20 2 1 IL App (1st) 182285

- U No. 1 -18-2285 Order f iled September 23 , 20 21 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS , Plaintiff -Appell ee ,

v.
RAMON DELGADO , Defendant -Appell ant

. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

. No. 89 CR 2894
Honorable Matthew E. Coghlan , Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Reyes and Justice Martin concurred in the judgment. O RDER ¶ 1 Held : Defendant failed to make the requisite prima facie showing of prejudice to obtain leave under the cause and prejudice test t o fil e his fourth successive postconviction petition where the e ighth a mendment protection under the United States Constitution proh ibiting the imposition of life sentences upon juvenile defendants absent consideration of their youth and attendant characteristics did not apply to defendant because he was 22 years old when he committed the offenses. ¶ 2 In 1992, defendant Ramon Delgado was found guilty of two counts of first

- degree murder following a j ur y trial and sentenced to a mandatory term of life i mprisonment without theNo. 1 -18-2285

- 2 - possibility of parole. This court affirmed his conviction and sentence on direct appeal. People v. Delgado , 282 Ill. App. 3d 851 (1996). ¶ 3 Th is appeal follows the denial of defendant’s motion for leave to file a fourth successive postconviction petition. In this appeal, he conten d s he sufficiently demonstrated cause and prejudice for leave to fi l e his petition becaus e his mandatory life sentence is unconstitutional as applied to him under the eighth amendment of the United State s Constitution where he was 22 years old when he committed the offense , and his drug addiction played a substantial role in his

cr ime

. ¶ 4 For the reasons that follow, we affirm the judgment of the circuit court. 1 ¶ 5 I. BACKGROUND ¶ 6 I n January 1989, defendant fatally stabbed two individuals. The evidence presented to the jury showed that, prior to the offense, defendant, the two victims , and another individual , who was the daughter of one of the victims , were smoking cocaine in the victims ’ apartment . D efendant became angry and accused the others of stealing his cocaine. The police were called , and defendant left the apartment. Defendant , however, returned , saying th at he wanted to apologize and make it up to the others by getting more cocaine from his house

. One victim and her daughter drove defendant to his house, where instead of more cocaine he obtained a kitchen kni f e and concealed it underneath his coat. When he returned to the car, he told the others that he “got it,” and they drove back to the victims’ apartment. Once inside the apartment, defendant took the knife from his coat and stabbed the two victims. Defendant subsequently provided incriminating statements

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.No. 1 -18-2285

- 3 - to the police and an assistant state ’ s attorney . At the trial, defendant testified that he s tabbed the victims in self

- defense or acted under the unreasonable belief that he needed to use self

- defense

. The jury found defendant guilty of the first

- degree murder of the two victims. ¶ 7 D efendant waived a jury for the death eligibility determination a nd sentencing , and the death penalty hearing was convened. The trial court found him eligible for the death sen ten ce because he was convicted of killing two people and the State had proven beyond a reasonable doubt that he was 22 years old at the time of t he offense. ¶ 8 In aggravation, the state presented evidence regarding defendant’s prior offense of attempted theft of a jewelry store. Specifically, about 10 days before defendant committed the murders at issue here, he unsuccessfully tried to break into a j ewelry store by striking the plate glass window with a tire iron. A n off -duty police officer pursued defendant first by car and then on foot into a nearby alley. After the officer displayed his badge and handgun, defendant lunged for the officer’s gun. Bot h t he officer and defen d ant slipped, and the gun accidently discharged, striking defendant in the leg. Defendant was arrested and released on bail

. ¶ 9 In mitigation, the defense presented the testimony of defendant’s high school internship
manager , a college counselor, a coworker, a mitigation specialist, and a teacher at the jail to show that defendant’s initial success at school and work was derailed when his concerns about his ability to financially support himself and his chi ld caused him to struggle , leave college and turn to illegal drug use. In allocution, defendant said that he was raised by a wonderful family but his illegal drug use destroyed his life. He also expressed remorse to the victims’ families for his crime. T he c ourt found sufficient mitigating factors to prec l ude the imposition of the death penalty and imposed the mandatory alternate, a life sentence

.No. 1 -18-2285

- 4 - ¶ 10 On direct appeal, defendant argued that he was improperly denied a jury instruction on second

- degree murder base d on provocation and the trial court improperly admitted the medical examiner ’ s testimony regarding cocaine found in the victims ’ bodies. Delgado , 282 Ill. App. 3d at 852. In 1996, w e affirmed defendant ’ s conviction and sentence. Id . at 859. ¶ 11 In 1997, Defendant filed his initial p etition for relief pursuant to the Post -Conviction Hearing Act (Act) (725 ILCS 5/122 -1 et seq . (West 199 6 )) , and a subsequent supplemental petition . He asserted a number of allegations of ineffective assistance of counsel , including trial counsel ’s fail ure to properly raise the defense of voluntary intoxication and present readily available evidence sufficient to establish that defense. The trial court summarily dismissed defendant’ s petition and supplement as without meri t , and t his court affirmed th at dismissal in 1999

. People v. Delgado , No. 1 -97-2954 (1999) (unpublished order under Supreme C ourt Rule 23). ¶ 12 In 2001, defendant filed his first successive postconviction petition , claiming that his natural life sentence violated Apprendi v. New Jersey , 530 U.S. 466 (2000), and trial counsel was ineffective for failing to present evidence of voluntary intoxication. The trial court summarily dismissed defendant ’ s first successive postconviction pet ition , and this court affirmed that decision
i n 2002. People v. Delgado , No. 1 -01-3456 (2002) (unpublished order under Supreme C ourt Rule 23). ¶ 13 In 2003, defendant filed a pro se section 2

- 1401 petition for relief from judgment (735 ILCS 5/2 -140 1 (West 2002 )), arguing that his natural life sentence exceeded the statutory

m aximum authorized by law. The trial court sua sponte dismissed defendant ’ s petition as untimely under section 2 -1401(c). I n 2005, this court a ffirmed the trial court ’ s dismissal of defendant ’ sNo. 1 -18-2285

- 5 - section 2

- 1401 petition. People v. Delgado , 1 -03-1874 (2005) (unpublished order under Supreme
C ourt Rule 23)

. ¶ 14 In 2011, d efendant filed his second successive postconviction petition, again claiming his trial counsel was ineffective for failing to raise the defense of voluntary intoxication and present readily available evidence sufficient to establish that defense. Defendant a lso filed a motion to add missing pages and exhibits from his initial postconviction petition, including his medical records and doctors ’ reports, which he claimed were not considered by the trial court prior to the dismissal of his initial postconviction petition. In June 2012, the trial court summarily dismissed the petition as frivolous and patently without merit and a lso found that defendant failed to satisfy the cause and prejudice test. T he court found that defendant ’ s claims were barred by the doctrine of res judicata and trial counsel ’ s decision to pursue a theory of self

- defense over a theor y of voluntary intoxication did not support a claim of ineffective assistance of counsel. The court also found that there was little evidence to support a claim of voluntary intoxication , so even if that theory of defense had been presented, i t was unlikel y to succeed. I n 2013, this court affirmed the dismissal of defendant ’ s second successive postconviction petition. People v. Delgado , 2013 IL App (1st) 122368 -U. ¶ 15 Meanwhile, i n December 2012, defendant requested leave to file his third successive postconvic tion petition, which alleged that his trial and appellate attorneys were ineffective.
D efendant claimed that trial counsel was ineffective for failing to present the defense s of drug

induced intoxication , diminished capacity , and temporary insanity. Defendant a lso claimed again that pages of his initial postconviction petition, which supported his alleged chronic drug use, were missing and not considered by the trial court.No. 1 -18-2285

- 6 - ¶ 16 I n 2013, the trial court denied defendant leave to file his third successive postconviction petition based on his failure to satisfy the cause and prejudice test . In summarily dismissing his petition, the trial court stated that defendant’s ineffective counsel claims had been adjudicated and dismissed a total o f four times , so defendant suffered no prejudice from the alleged missing pages in his initial petition. Moreover, defendant’s counsel was not ineffective for failing to present the suggested defense s of drug induced intoxication, diminished capacity, and temporary insanity because those defenses would not have been viable where defendant had testified at the trial that he smoked cocaine prior to the murder and stabbed the victim in self

- defense after the victim came after him with a knife when petitioner a ccused him of stealing his cocaine. Likewise, appellate counsel was not ineffective for failing to raise th at issue on appeal. Finally, defendant’s claim of ineffective counsel against his first attorney, who withdrew from representing defendant , was not

c lear and merely stated the facts surrounding counsel ’ s withdrawal from representation. In 2016, this court affirmed the dismissal of defendant’s third successive postconviction petition. People v. Delgado , 2016 IL App (1st) 131741

- U. ¶ 17 In 2018, defendant sought leave to file the instant fourth successive postconviction petition,

c iting Miller v. Alabama , 567 U.S. 460 ( 2012 ), and claiming that his life sentence violated the eighth amendment. Defendant alleged that he was 22 years and 4 months of a ge at the time he committed the two murders and recent research in neurobiology and developmental psychology has shown that the brain deve lopm ent of young adults wa s more similar to that of adolescents than fully mature adult s. Specifically, young adults and adolescents we re less future -oriented, more susceptible to peer pressure, and more volati l e in emotionally charged settings. Defendant also argued that his drug addiction and depression played a substantial role in his crime and , evenNo. 1 -18-2285

- 7 - though some of th o se mitigating factors were presented to the trial court at his death penalty hearing, “they were not available to be considered before imposing a mandatory natural life
sentence

. ” In support of his petition, defendant submitted one page of the sentencing h earing and several medical records from two hospitals and one medical c e nter . The medical records showed that defendant received treatment for stabbing himself and was diagnosed with PCP dependence and depression. ¶ 18 On August 31, 2018, the trial court denied defendant leave to file th is fourth successive postconviction petition. The trial court found that defendant demonstrated cause under Miller because that case and its progeny were not available when he filed h is earlier postconviction petitions. However, the court found that h e failed to demonstrate prejudice because Illinois precedent held that Miller did not apply to adult offenders

. Finally, t he court acknowledged that defendant did not advance a claim under the proportionate penalties clause of the Illinois Constitution but nevertheless addressed th at issue and distinguished defendant’s case from cases where the defendants were not the sole offender and their participation in the offenses were limited

. ¶ 19 Defendant timely appealed. ¶ 20 II. ANALYSIS ¶ 21 On appeal, defendant argues that the trial court erred in denying him leave to file his fourth successive postconviction petition because he satisfied the cause and prejudice test and his petition raised a viable claim that his natural life sentence is uncon stitutional as applied to him under the eighth amendment of the United States Constitution. 2 H e asserts that the law in effect at the time

2 Defendant’s appeal does not include a claim that his sentence i s unconstitutional under the proportionate penalties clause of the Illinois Constitution.No. 1 -18-2285

- 8 - of his sentencing gave the trial court only the binary choice to sentence him to either death or life imprisonment a nd thereby prevented the court from considering his status as an emerging adult offender . A ccording to defendant , that binary choice resulted in the imposition of his life sentence without the consideration of the transient qualities of his youth or a spec ific fin d ing that he was irreparably incorrigible. He argues that the evolving legal standards concerning the sentencing of adolescents and emerging adults afford him the opportunity to file his successive petition and develop the record to support his as - applied cha r ge. ¶ 22 Defendant cites People v. Harris , 2018 IL 121932, ¶ 45, to support his assertion that emerging adult p etitioners like him have a right to plead as

- applied challenge s to their sentences under the eighth amendment and Miller

. According to defendant, in Harris , the Illinois Supreme
C ourt explicitly identified postconviction proceedings as the proper vehicle for an as

- applied constitutional challenge to a defendant’s sen t ence . Moreover, because an as

- applied challenge depends on the specific facts and circumstances of the person raising the challenge, the substantive analysis of defendant’s claim s should await this court’s remand, where counsel can be appointed and the claims can be developed. ¶ 23 Defendant argues that he should be allowed to file this successive postconviction petition because he satisfied the cause and prejudice test. Specifically, he asserts that he demonstrated cause because the cited legal authority supporting his claim

— i.e , Miller , which held that the eighth amendment prohibits sentencing laws mandating life in prison without the possibility of parole for juvenile offenders, and the cases following Miller —w ere not available during his prior proceedings . He also asserts that he demonstrated prejudice where his life sentence ar guablyNo. 1 -18-2285

- 9 - violates Miller because a mandatory life sentence was imposed on him without consideration of the impact of his still -developing young adult brain and drug addiction on his thought processes

. ¶ 24 The Act provides a statutory remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred at trial. People v. Eddmonds , 143 Ill. 2d 501, 510 (1991). The Act contemplates the filing of only one postconviction p etition ( People v. Flores , 153 Ill. 2d 264, 273 ( 1992)), providing that any claim not raised in the original or amended petition is subject to the doctrines of res judicata and waiver (725 ILCS 5/122

- 3 (West 2016); People v. Smith , 341 Ill. App. 3d 530, 535 (2003)). However, the filing of a successive postconviction petition may be allowed where the proceedings on the initial petition were fundamentally deficient. Flores , 153 Ill. 2d at 273

- 74. Specifically, the waiver provision can be lifted and a succe ssive petition can be considered on the merits if it either meets the cause and prejudice test of section
122- 1(f) of the Act (725 ILCS 5/122

- 1(f) (West 2016)), or its consideration is necessary to prevent a fundamental miscarriage of justice because the defendant shows a claim of actual innocence ( People v. Pitsonbarger , 205 Ill. 2d 444, 459 (2002)). ¶ 25 A defendant seeking to file a successive postconviction petition must first obtain leave of
court. People v. Tidwell , 236 Ill. 2d 150, 157 (2010). Here, defen dant seeks leave to file his fourth successive postconviction petition under the cause and prejudice test of section 122

- 1(f) of the Act, which provides:
“ Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of the court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post

conviction proceedings and prejudice results from that failure. For purposes of thisNo. 1 -18-2285

- 10 - subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post

conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post

- conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.” 725 ILCS 5/122– 1(f) (West 2016).
We review de novo the denial of a defendant ’ s motion for leave to file a successive postconviction peti tion ( People v. Wrice , 2012 IL 111860, ¶ 50), and may affirm the denial on any ground of record ( People v. Johnson , 208 Ill. 2d 118, 129 (2003)). ¶ 26 A defendant ’ s motion for leave to file a successive postconviction petition satisfies the section 122

- 1(f) cau se and prejudice requirement if the motion adequately alleges facts demonstrating cause and prejudice. People v. Smith , 2014 IL 115946, ¶ 34. Moreover, the cause and prejudice test for successive petitions involves a higher standard than the frivolous or p atently without merit standard applied to first

- stage postconviction petitions. Id . ¶ 35. A defendant seeking leave to file a successive petition must submit enough in the way of pleadings and documentation to allow a circuit court to make an independent determination on the legal question of whether adequate facts have been alleged for a prima facie showing of cause and prejudice. Id

. ¶ 27 If a defendant fails to adequately allege cause and prejudice, the circuit court does not reach the merits of his successiv e petition because the cause and prejudice test is a procedural prerequisite to obtaining that review. People v. Welch , 392 Ill. App. 3d 948, 955 (2009). “If the court determines that cause and prejudice have been adequately alleged and allows the petition to be filed, it advances to the three

- stage process for evaluating postconviction petitions. During thisNo. 1 -18-2285

- 11 - process, the State would have an opportunity to seek dismissal of the petition on any grounds, including the defendant ’ s failure to prove cause and prejudice for not having raised the claims in the initial postconviction petition.” People v. Bailey , 2017 IL 121450, ¶ 26. ¶ 28 Our supreme court has held that “leave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further
procee dings.” Smith , 2014 IL 115946, ¶ 35. For the reasons t hat follow, we conclude that defendant cannot establish prejudice to obtain leave to file his fourth successive postconviction petition because his claims are not legally cognizable

. ¶ 29 The eighth amendment prohibits “cruel and unusual punishments” and applies to the states through the fourteenth amendment. U.S. Const. amend. VIII; People v. Davis , 2014 IL 115595, ¶ 18. The United States Supreme Court has held that the eighth amendment prohibits (1) capital sentences for juveniles who commit murder ( Roper v. Simmons , 543 U.S. 551, 578

- 79 (2005)), (2) mandatory life sentences for juveniles who commit nonhomicide offenses ( Graham v. Florida , 560 U.S. 48, 82 (2010) ), and (3) mandatory life sentences for juveniles who commit murder ( Miller , 567 U.S. at 489). People v. Buffer , 2019 IL 122327, ¶ 16. ¶ 30 In Miller , 567 U.S. at 471, the Supreme Court stated that “children are constitutionally different from adults for purposes of sentencing.” The lack of maturity and underdeveloped sense of responsibility of children leads to “recklessness, impulsivity, and heedless risk -taking.” (Internal quotation marks omitted.) Id . Children are also more vulnerable to negative influences and outside pressures, have limited control over their own environment, and “lack the ability toNo. 1 -18-2285

- 12 - extricate themselves from horrific, crime -produ cing settings.” Id . Their character is not as well

formed as an adult ’ s, their traits are “less fixed” and their actions are “less likely to be evidence of irretrievable depravity.” (Internal quotation marks omitted.) Id

. Miller requires sentencing courts in homicide cases to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id . at 480. In Montgomery v. Louisiana , 577 U.S. 190 , 212 (2016), the Supreme Court found that Miller applies retroactively. ¶ 31 The Illinois Supreme Court interpreted Miller to apply to discretionary life sentences, finding that “[l]ife sentences, whether mandatory or discretionary, for juvenile defendants are disproportio nate and violate the eighth amendment, unless the trial court considers youth and its attendant characteristics.” People v. Holman , 2017 IL 120655, ¶ 40. Before a trial court may sentence a juvenile defendant to life without parole, the court must consider several factors, including his age at the time of the offense and any evidence of his particular immaturity, impetuosity and failure to appreciate risks and consequences, his family and home environment, his degree of participation in the homicide, and his prospects for rehabilitation. Id . ¶ 46. ¶ 32 Defendant contends that Harris , 2018 IL 121932, give s him the right to plead in a postconviction petition an as -applied constitutional challenge to his life sentence under the eighth amendment and Miller

. We conclu de, however, that Harris , which was a direct rather than a collateral appeal, does not support defendant’s contention. ¶ 33 In Harris , the 18

- year - old defendant challenged his sentence as unconstitutional in (1) a n

as - ap p lied challenge under the proportionate penalties clause of the Illinois C onstitution, and (2) a facial challenge under the eighth amendment. See 2018 IL 121932, ¶¶ 34

- 48, 49 -61. Regarding his proportionate penalties clause challenge, w hich the defendant raised for the firstNo. 1 -18-2285

- 13 - time on appeal, he argued that the sentencing statute that resulted in him receiving a mandatory minimum aggregate sentence of 76 years ’ imprisonment was unc onstitution al as applied to his specific circumstances because he had no prior criminal history and had several other attributes that reflected his rehabilitative potential. Because the defendant did not raise this as - applied challenge in the trial court, an evidentiary hearing was not held on his constitutional claim and the
t rial court did not make any findings of fact on his specific circumstances. Id . ¶ 40. Furthermore, because the defendant was an 18

- year - old adult, Miller did not apply directly to his circumstances

. Id . ¶ 45. Accordingly, the supreme court found that the defendant’s as

- applied proportionate penalties clause claim was premature because the record did not “contain evidence about how the evolving science on juvenile maturity and brain development that helped form the basis for the Miller decision applie [d] to [the] defendant’ s specific facts and circumstances. Id . ¶ 46. The supreme court stated that the record needed to be developed and the defendant’ s claim was more appropriate ly raised in another proceeding, such as a proceeding under the Act. Id . ¶ 48. This portion of Miller’s analysis under the proportionate penalties clause hardly supports defendant’s assertion here that he is entitled to file a fourth successive postconviction petition to raise an as

- applied challen ge under the eighth amendment. ¶ 34 Regarding Miller’s analysis of the defendant’s facial challenge to his sentence under the eighth amendment, the court ruled that this challenge failed because (1) the defendant , as an 18 year old, fell on the adult side of the line that marks the age of 18 as the present line between juveniles and adults , (2) the Supreme Court in Roper , 543 U.S. at 574, drew the line at age 18 bec ause society ha s drawn that line b et we en childhood and adulthood for many purposes , and (3) the s upreme c ourt agreed with the decisions of federa l and state courts of appeal , including th isNo. 1 -18-2285

- 14 - court, that repeatedly rejected claims t o extend Miller t o offenders 18 years of age or older. Harris , 2018 IL 121932, ¶¶ 60 -61. ¶ 35 D efendant attempts to evade this holding in Harris by labeling his eighth amendment challenge to his mandatory alternative sentence of natural life an as - applied rather than a facial challenge. However,
“f

acial and as

- applied constitutional challenge s are not interchangeable. An as

applied challenge requires a showing that the statute is u nconstitutional as it applied to the challenging party’s specific circumstances. [Citation.] I n contrast, a facial challenge requires the challenging party to establ ish that the statute is unconstitutional under any possible set of facts. [Citation.] ” Id

. ¶ 52. Here, the trial court’s discretion in sentencing defendant was limited by statute to determin ing whether to impose the death penalty or the mandatory alternate sentence of life imprisonment without the possibility of parole. The court found sufficient mitigating factors to preclude the imposition of the death penalty and imposed the mandatory alternate, a life sentence . That alternate life sentence was mandated by the legislature ; thus, any constitutional violation in this case was necessarily committed , not by the trial court when the sentence was applied, but by the legislature when the sentencing statute was enacted

. See id

. ¶¶ 70- 73 (Burke, J., concurring)

. Consequently, “defendant’s claim cannot be an as

- applied challenge” ( Id

. ¶ 71 ), and his eighth amendment challenge to his natural life sente n ce fails because he was 22 years old when he murdered the two victims an d the Miller protections afforded to juveniles do not extend to def enda nts aged 18 year s and older. Id

. ¶ 61.No. 1 -18-2285

- 15 - ¶ 36 III. CONCLUSION ¶ 37 For the foregoing reasons, we affirm the judgment of the circuit court. ¶ 38 Affirmed.