2020 IL App (1st) 172016-U 

FIFTH DIVISION

February 14, 2020 

No. 1-17-2016 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1). 

IN THE 

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

 Respondent-Appellee,

v. 

GYASI BANNER,

Petitioner-Appellant. 

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Appeal from the Circuit Court of 

Cook County. 

No. 11 CR 17054 

Honorable Neera Lall Walsh, 

Judge Presiding. 

JUSTICE DELORT delivered the judgment of the court. 

 Presiding Justice Hoffman and Justice Rochford concurred in the judgment. 

ORDER

¶ 1 Held: The circuit court did not err in summarily dismissing petitioner’s petition for 

postconviction relief. Affirmed.

¶ 2 Following a jury trial, petitioner Gyasi Banner was convicted of attempted murder, 

aggravated criminal sexual assault, aggravated discharge of a firearm, and the violation of an order 

of protection. The trial court sentenced him to 47 years’ imprisonment. On direct appeal, we 

granted petitioner additional presentence custody credit and vacated his conviction for aggravated 

discharge of a firearm, but otherwise affirmed his conviction and sentence. See People v. Banner, 

2015 IL App (1st) 132974-U. Petitioner then filed a petition pursuant to the Post-Conviction 
No. 1-17-2016 

2 

Hearing Act (the Act) alleging, inter alia, that he received ineffective assistance of trial counsel 

and his sentence is an unconstitutional de facto life sentence. Petitioner now appeals the circuit 

court’s summary dismissal of his petition, contending that (1) trial counsel was ineffective in 

failing to investigate petitioner’s testimony prior to advising him to waive his right to testify; and 

(2) his 47-year aggregate sentence is an unconstitutional de facto life sentence. We affirm.

¶ 3 BACKGROUND

¶ 4 The facts adduced at trial were thoroughly set forth in petitioner’s direct appeal. See 

id. ¶¶ 4-36. Accordingly, we will limit our discussion only to those facts pertinent to the issues 

raised here. 

¶ 5 Petitioner was charged in a multi-count indictment with, inter alia, aggravated criminal 

sexual assault, aggravated discharge of a firearm, attempted first degree murder, and violating an 

order of protection. 

¶ 6 The victim, J.M., testified that she and petitioner have a son, Gyasi, Jr., who was born in 

February 2011. In July 2011, J.M. obtained an order of protection against petitioner following an 

altercation in which she received a black eye that burst open from swelling, a “busted” lip, and 

bruising. 

¶ 7 Early on the morning of September 20, 2011, J.M. said that petitioner arrived at her aunt’s 

residence where J.M. was living. Petitioner asked to see his son, and J.M. agreed despite the order 

of protection. J.M. stepped out onto the porch, and while she was still holding the baby, petitioner 

hugged and kissed the baby, and told him that petitioner loved him and would see him “in heaven.” 

J.M. told petitioner not to say that to the baby and turned to go back into the house. Petitioner 

began to walk away but told J.M. to wait because petitioner had something for her. Petitioner then 

pulled out a gun from his book bag. 
No. 1-17-2016 

3 

¶ 8 J.M. tried to go into the house, but petitioner grabbed the back of her head and held the gun 

to her chin while J.M. was holding the baby. Petitioner said that there would be “problems” if he 

found out the baby was not his or if J.M. was “messing around” on petitioner. Petitioner said he 

would not hurt the baby but would instead “end it” for both of them right there. While holding the 

gun to J.M.’s face, petitioner forced J.M. upstairs despite her protests. 

¶ 9 They went upstairs, and petitioner told J.M. to put the baby in a car seat so that they could 

talk. J.M. did not, so petitioner took the baby from J.M., placed him in a car seat in the upstairs 

bedroom and told J.M.’s four-year-old sister to watch him. J.M. and petitioner then went into the 

bathroom, and petitioner locked the door. 

¶ 10 J.M. was standing in front of the bathroom sink, and petitioner was standing behind her, 

kissing her neck. J.M. told him that she did not want to have sex, but petitioner responded, “I 

didn’t ask you what you wanted to do, I’m gonna take it.” Petitioner then placed the gun on the 

sink, pulled down J.M.’s pants and underwear, bent her over, and placed his penis in her vagina. 

¶ 11 Afterwards, petitioner told J.M. to “fix” her face because she had been crying. Petitioner

left with the baby and warned her that there would be “a problem” if she did not come downstairs 

in 15 minutes. J.M. quickly dressed and went downstairs. 

¶ 12 J.M. met petitioner back on the porch, and petitioner gave her the baby. Petitioner accused 

J.M. of “messing up his life” and blamed her for his criminal record. J.M. laughed at him, and 

petitioner threatened to “slap the dog shit out of [her]” if she laughed at him again. J.M. again 

laughed, and petitioner slapped her face. The baby started crying. 

¶ 13 Tonia Darby-Jones, J.M.’s aunt, came out and told J.M. to go inside the house. Petitioner 

told J.M. to “hold on” and that Darby-Jones “can wait.” Darby-Jones again told J.M. to go into 

the house, so J.M. went inside, put the baby to bed, and called the police. 
No. 1-17-2016 

4 

¶ 14 After she hung up, she could hear arguing on the porch between her aunt, her aunt’s 

boyfriend (Capton Brown), and petitioner. J.M. then saw Brown and petitioner in a fistfight. J.M. 

called the police a second time, again telling them that petitioner had a gun and that they should 

come quickly. J.M. told Darby-Jones that the gun was in petitioner’s book bag on the porch. 

Darby-Jones brought the bag into the house, locked the door, and found the gun. 

¶ 15 Petitioner returned and demanded his bag, but Darby-Jones refused. Petitioner then tore

the door off its hinges and took the bag. J.M. and Darby-Jones were standing in the doorway, 

about two feet from petitioner, when petitioner removed the gun and began firing at Brown. After 

shooting at Brown, petitioner returned the gun to the book bag and left. 

¶ 16 The police arrived, and after J.M. spoke to a detective at the police station, she was 

transported to a nearby hospital. J.M. went to the hospital for analysis with a “rape kit,” but she 

declined and was discharged. 

¶ 17 On cross-examination, J.M. conceded that she did not say anything to her four-year-old 

sister after petitioner placed Gyasi Jr. in a car seat and left the baby with the four-year-old. J.M. 

also agreed that she did not try to escape after petitioner placed the gun on the bathroom sink. 

¶ 18 J.M. further conceded that she visited petitioner more than 10 times since the time of the 

assault and wrote three letters to petitioner. J.M. wrote that she loved and missed petitioner. She 

further expressed remorse for his incarceration and her wish that petitioner was with her to help 

raise their child. J.M. admitted that, in one of her letters, she wrote that she did not know whether 

petitioner should “move on” but that she would not beg him to stay and was “damn sure not gonna 

[sic] play 2nd to no bitch!” The letters also stated that the Department of Children and Family 

Services (DCFS) threatened to “take” their child from her due to child endangerment or neglect if 

she did not follow through with her sexual assault accusation. 
No. 1-17-2016 

5 

¶ 19 Darby-Jones testified that, on the morning of September 20, she answered the door and 

saw petitioner, who asked to see J.M. She called to J.M. that petitioner was at the door and went 

back to sleep. After “a few” hours, Darby-Jones got up and began cooking. She saw J.M. go out 

the front door with the baby. Later, Darby-Jones asked J.M. several times to come inside because 

the food was ready, but J.M. did not come back. Brown, who had spent the prior evening at the 

house and had been entering and leaving the house that morning while getting ready for work, 

came in and told Darby-Jones that petitioner had threatened to slap J.M. 

¶ 20 Darby-Jones then went to the porch and asked J.M. twice to come into the house. When 

J.M. went into the house, Darby-Jones told petitioner to leave, but petitioner replied, “Bitch, I ain’t

going nowhere.” Darby-Jones began arguing with petitioner, demanding that he leave, and Brown, 

who had been standing in front of Darby-Jones’s car, walked over and told petitioner to leave. 

Brown and petitioner began arguing, and then started fighting. The fight ended shortly thereafter,

and Darby-Jones saw petitioner shake Brown’s hand. 

¶ 21 Darby-Jones walked back into her house and received a call from the police asking to 

confirm that there had been a report of a person with a gun. After J.M. told her where it was, 

Darby-Jones saw the gun in petitioner’s book bag and brought the bag into the house. Petitioner 

walked up to the front door and demanded his book bag, but Darby-Jones refused and said the 

police were coming. Petitioner kicked the exterior door off its hinges and pushed open the interior 

door. Petitioner took the bag to the porch and took out the gun. 

¶ 22 Darby-Jones yelled out to Brown that petitioner had a gun. Darby-Jones said petitioner

shot five or six times in Brown’s direction. Brown heard Darby-Jones yell to him and began 

running down the street when he saw petitioner remove the gun. Although Brown heard the shots

and testified that he saw petitioner point the gun at him, he did not see petitioner shoot at him. 
No. 1-17-2016 

6 

Nonetheless, Brown testified that the shots came from behind him and that they were close to him. 

Petitioner then left, and after Darby-Jones called the police, she got into a car and followed 

petitioner down the street. 

¶ 23 Following the State’s presentation of witness testimony, the following colloquy took place. 

 “THE COURT: Okay. We are back on the record. We are 

outside the presence of the jury[;] we took a brief recess. The State 

is present, the Defense is present, the Defendant is present also. 

The State is anticipating putting in two documents, then I 

believe they’re going to be resting. ***. 

 *** I’ve been informed by [defense counsel] that her client 

does not wish to testify, which she has had an opportunity to discuss

this with him. The Court is now going to be making inquiry of Mr. 

Banner also. 

Mr. Banner, do you understand the decision to testify is a 

decision that is yours, and yours alone to make? 

THE DEFENDANT: Yes. 

THE COURT: All right. And you can consult with your 

lawyers, which is what you have done; is that correct? 

THE DEFENDANT: Yes. 

THE COURT: Okay. And what did you decide, after 

consulting with your lawyers: Do you wish to testify or not? 

THE DEFENDANT: No, I do not. 

* * * 
No. 1-17-2016 

7 

THE COURT: All right. Then, okay. The Court accepts 

that the Defendant is knowingly and willingly making an informed 

decision not to testify at this time, ***.” 

¶ 24 The jury subsequently found petitioner guilty of attempted murder, aggravated criminal 

sexual assault, aggravated discharge of a firearm, and violation of an order of protection. The jury 

further found that, during the commission of the attempted murder, petitioner was armed with and 

personally discharged a firearm. 

¶ 25 During defendant’s sentencing hearing, the circuit court recounted that it had an 

opportunity to hear the trial testimony and consider the statutory aggravating and mitigating 

factors. The court added that it was “taking into consideration especially this defendant’s age and 

the facts of this case and what the range is in this case and this defendant’s background.” The 

court stated that the minimum aggregate sentence was 47 years. It noted that, although the 

minimum sentence might appear harsh, “the facts in this case [call] for a harsh sentence as there 

were some serious and egregious things that happened ***.” The court added that it was also 

“very mindful of this defendant’s youth,” reiterating that defendant was a young man. The court 

then sentenced petitioner to consecutive terms of 26 years and 21 years for the attempted murder 

and aggravated criminal sexual assault convictions, respectively. The court noted that those 

sentences were the mandatory minimum sentences and had to be served consecutively pursuant to 

statute. The trial court also imposed concurrent sentences of four years and three years on the 

aggravated discharge of a firearm and violation of an order of protection convictions, respectively. 

¶ 26 On direct appeal, petitioner contended that (1) the State failed to prove him guilty of 

aggravated criminal sexual assault beyond a reasonable doubt; (2) his trial counsel rendered 

ineffective assistance by failing to seek severance and present evidence that would have impeached 
No. 1-17-2016 

8 

the victim’s credibility; (3) the indictment for the violation of an order of protection charge was 

void; (4) his conviction for aggravated discharge of a firearm should be vacated under the one act, 

one crime doctrine; and (5) he was entitled to additional presentence custody credit. Banner, 2015 

IL App (1st) 132974-U, ¶ 2. We vacated his aggravated discharge of a firearm conviction and 

modified his mittimus to reflect the correct presentence custody credit, but we otherwise rejected 

his claims and affirmed his remaining convictions and sentence. Id. ¶ 87. 

¶ 27 On April 5, 2017, petitioner filed his postconviction petition. His petition alleged, inter 

alia, that his trial counsel rendered ineffective assistance for failure to consult with and determine 

petitioner’s testimony on his own behalf prior to advising him not to testify. Petitioner stated that 

trial counsel advised him not to testify because she believed the State’s evidence was weak. 

Petitioner attached an affidavit to his petition in which he stated that, although he wanted to testify, 

his trial counsel said that he should not because he was unprepared to do so and thus “might say 

the wrong thing.” Petitioner denied sexually assaulting J.M. and further denied entering the house 

until he had to force his way in to retrieve his book bag. Petitioner explained that there was no 

“need” for him to sexually assault J.M. because he also had two other children by two other women 

with whom he continued to have a relationship while he was in a relationship with J.M. Petitioner 

speculated that J.M. accused him of rape because she was angry at petitioner for breaking off their 

engagement and revealing that he was going back to the mother of one of his other children. 

¶ 28 Petitioner further stated in his affidavit that he never tried to kill Brown. Instead, petitioner 

asserted that, after their altercation ended peacefully, J.M.’s aunt took petitioner’s book bag into 

the house. Petitioner forced his way in and took the bag, at which point Darby-Jones spat on him. 

Petitioner then kicked the door in, knocking Darby-Jones to the floor, and spat on her. The gun 

fell out of the bag, and Darby-Jones alerted Brown that petitioner had a gun. Brown first ran 
No. 1-17-2016 

9 

toward petitioner but fled when petitioner pulled out the gun. Petitioner stated that he fired his 

gun only in the air and not at Brown to ensure that Brown would continue fleeing. 

¶ 29 Petitioner further claimed that his aggregate 47-year sentence, which was imposed when 

he was 20 years old, was an unconstitutional de facto life sentence based upon recent Illinois 

decisions and his disadvantaged upbringing. 

¶ 30 This appeal followed. 

¶ 31 ANALYSIS 

¶ 32 Petitioner alleges that the circuit court erred in summarily dismissing his postconviction 

petition. Petitioner argues that he raised two claims that had at least an arguable factual and legal 

basis: first, that his trial counsel was ineffective for failing to investigate his testimony before 

advising him to waive his right to testify, and second, that his 47-year aggregate sentence is an 

unconstitutional de facto life sentence. He asks that we vacate the court’s summary dismissal and 

remand this matter for second-stage proceedings. 

¶ 33 The Act allows a petitioner to challenge a conviction or sentence for violations of federal 

or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). An action for 

postconviction relief is a collateral proceeding rather than an appeal from the underlying judgment. 

People v. Williams, 186 Ill. 2d 55, 62 (1999). Principles of res judicata and waiver will limit the 

range of issues available to a postconviction petitioner “ ‘to constitutional matters which have not 

been, and could not have been, previously adjudicated.’ ” People v. Scott, 194 Ill. 2d 268, 273-74 

(2000) (quoting People v. Winsett, 153 Ill. 2d 335, 346 (1992)). Accordingly, rulings on issues 

that were previously raised at trial or on direct appeal are res judicata, and issues that could have 

been raised in the earlier proceedings, but were not, will ordinarily be deemed waived. Id. at 274; 

725 ILCS 5/122-3 (West 2016). 
No. 1-17-2016 

10 

¶ 34 In a noncapital case, postconviction proceedings contain three stages. People v. Tate, 2012 

IL 112214, ¶ 9. At the first stage, the circuit court must independently review the petition, taking 

the allegations as true, and determine whether the petition is frivolous or is patently without merit. 

Id. (quoting People v. Hodges, 234 Ill. 2d 1, 10 (2009) (quoting 725 ILCS 5/122–2.1(a)(2) (West 

2006))). A petition may be summarily dismissed as frivolous or patently without merit only if the 

petition has no arguable basis either in law or in fact. Id. Since petitioners with little legal 

knowledge typically draft most petitions at the first stage, “the threshold for survival [is] low. Id. 

¶ 35 The Hodges court, however, explained that its recognition of a low threshold at this stage 

“does not mean that a pro se petitioner is excused from providing any factual detail at all 

surrounding the alleged constitutional violation.” Hodges, 234 Ill. 2d at 10. To the contrary, 

section 122-2 of the Act provides that a petition “shall have attached thereto affidavits, records, or 

other evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 

5/122-2 (West 2016). The failure to either attach the necessary “affidavits, records, or other 

evidence” or explain their absence is fatal to a postconviction petition, and this failure “by itself” 

justifies the petition’s summary dismissal. People v. Collins, 202 Ill. 2d 59, 66 (2002). We review 

the circuit court’s summary dismissal of a postconviction petition de novo. Id.

¶ 36 Trial Counsel’s Performance

¶ 37 Petitioner first contends that his trial counsel was constitutionally ineffective for failing to 

investigate his intended testimony before advising him to waive his right to testify. Petitioner 

notes that, although he wanted to testify, he “acquiesced to his attorney’s uninformed advice and 

declined to testify.” Petitioner reasons that his trial attorney’s failure to learn about his testimony 

before advising him to waive his right to testify arguably constituted ineffective assistance. 

Petitioner adds that he was arguably prejudiced by counsel’s failure to investigate, positing that, 
No. 1-17-2016 

11 

had he testified, there is a reasonable probability that the jury would have believed him over the 

State’s “slim evidence” and found him not guilty of either the aggravated criminal sexual assault 

charge, the attempted murder charge, or both.

¶ 38 Claims of ineffective assistance of counsel are governed by the familiar standard set forth 

in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the supreme court in People v. 

Albanese, 104 Ill. 2d 504 (1984). People v. Petrenko, 237 Ill. 2d 490, 496 (2010). To establish 

ineffective assistance, a petitioner must show both that (1) counsel’s performance was deficient 

and (2) the deficient performance prejudiced the petitioner. Id. Applied to a first-stage 

postconviction petition, “a petition alleging ineffective assistance may not be summarily dismissed 

if (i) it is arguable that counsel’s performance fell below an objective standard of reasonableness 

and (ii) it is arguable that the defendant was prejudiced.” (Emphases added.) Hodges, 234 Ill. 2d 

at 16-17. Deficient performance is performance that is objectively unreasonable under prevailing 

professional norms, and prejudice is found where there is a “reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.” Petrenko, 

237 Ill. 2d at 496-97; Strickland, 466 U.S. at 690, 694. The failure to establish either prong of the 

Strickland test is fatal to the claim. People v. Clendenin, 238 Ill. 2d 302, 317-18 (2010) (citing 

Strickland, 466 U.S. at 697). 

¶ 39 Matters of trial strategy, however, are generally immune from claims of ineffective 

assistance of counsel except where the trial strategy results in no meaningful adversarial testing. 

People v. West, 187 Ill. 2d 418, 432-33 (1999). In other words, the effective assistance of counsel 

merely refers to “competent, not perfect,” representation. People v. Stewart, 104 Ill. 2d 463, 491-

92 (1984). Thus, mistakes in trial strategy, tactics, or judgment will not “of themselves” render a 

trial counsel’s representation constitutionally defective. Id. For these reasons, we must be highly 
No. 1-17-2016 

12 

deferential to trial counsel as to trial strategy, and we must evaluate counsel’s performance from 

her perspective at the time and not “through the lens of hindsight.” Id. 

¶ 40 It is well established, however, that a criminal defendant’s decision whether to testify at 

his own trial is a fundamental right, and this decision is thus not a strategic or tactical matter best

left to trial counsel. People v. Daniels, 230 Ill. App. 3d 527, 535 (1992). Nonetheless, trial 

counsel’s advice not to testify is a matter of trial strategy and will not constitute ineffective 

assistance of counsel absent evidence suggesting that counsel “refused to allow [the petitioner] to 

testify.” People v. Youngblood, 389 Ill. App. 3d 209, 217 (2009). 

¶ 41 In addition, trial counsel has a duty to make either reasonable investigations or a reasonable 

decision that makes a particular investigation unnecessary. Strickland, 466 U.S. at 691. Therefore, 

in any claim of ineffectiveness, trial counsel’s decision not to investigate must be examined for its 

reasonableness under all the circumstances of the case, “applying a heavy measure of deference to 

counsel’s judgments.” Id. 

¶ 42 In this case, taking petitioner’s allegations as true, as we must (Tate, 2012 IL 112214, ¶ 9), 

his petition reveals that counsel merely advised petitioner against testifying, which was within the 

scope of counsel’s representation (see, e.g., Youngblood, 389 Ill. App. 3d at 217 (observing that 

the decision whether to testify on one’s own behalf belongs to the defendant but that the decision 

should be made with the advice of counsel)). In particular, “counsel is free to urge his professional 

opinion on his client [citation], and if the client acquiesces in his counsel’s conduct in this regard 

he should be bound by such action.” (Emphasis added.) People v. Knox, 58 Ill. App. 3d 761, 767

(1978). Petitioner’s statement that he “acquiesced” to his trial counsel’s recommendation are 

plainly indicative of advice of counsel and not a usurpation of petitioner’s right. Petitioner does 

not allege that counsel prevented him from testifying, nor does he claim that he did not know he 
No. 1-17-2016 

13 

had a right to testify. Further, he also does not claim—nor does the record reveal—that he made 

a contemporaneous assertion of his right to testify when the defense presented its case. People v.

Enis, 194 Ill. 2d 361, 399 (2000) (holding that the defendant “acquiesced in counsel’s view that 

defendant should not take the stand” when he failed to assert this right upon learning at trial that 

he would not be called as a witness). Finally, the circuit court admonished petitioner of his right 

to testify, which he knowingly waived. 

¶ 43 In addition, the substance of petitioner’s proposed testimony, in addition to a general 

denial, would have been that he believed J.M. accused him of rape because she still wanted to be 

in a relationship with petitioner and was jealous that he had ongoing sexual relationships with other 

women. This evidence, however, was substantially presented to the jury when it heard of her 

various letters to petitioner in which she wrote that she still loved and missed petitioner and that 

“she was ‘damn sure not gonna play 2nd to no bitch!’ ” Banner, 2015 IL App (1st) 132974-

U, ¶¶ 22-23. Ineffective assistance of counsel does not arise from a failure to present cumulative 

evidence. See People v. Dupree, 2018 IL 122307, ¶ 51. Petitioner thus failed to make an arguable 

claim that counsel’s performance was deficient in advising him not to testify. 

¶ 44 Moreover, even assuming that petitioner’s claim met the first prong of the Strickland test, 

it did not meet the second. As we noted in his direct appeal, there was “ample” evidence to support 

his convictions. Banner, 2015 IL App (1st) 132974-U, ¶¶ 42. First, regarding the sexual assault 

conviction, the jury heard J.M. identify petitioner as her attacker (an accusation she never sought 

to recant), and J.M.’s recounting of the attack was consistent—J.M. notably refused to agree that 

what happened in the bathroom was sex: she clearly stated that it was rape. With respect to the 

attempted murder of Brown, J.M. again stated unequivocally that petitioner shot “at” Brown. This 

testimony was further corroborated by Darby-Jones’s testimony that, although she did not see 
No. 1-17-2016 

14 

exactly where Brown was, petitioner shot in Brown’s direction. Finally, Brown testified that he 

saw petitioner remove the gun from his book bag and point the weapon at him before Brown turned 

and fled. Brown did not actually see petitioner fire the gun at him but testified that the shots came 

from behind him and that they were close to him. Therefore, in light of this evidence, it is not 

even arguable that there is a reasonable probability the outcome of petitioner’s trial would have 

changed had petitioner testified as proposed in his affidavit. Petitioner cannot arguably meet both 

prongs of the Strickland test, so his ineffective assistance claim necessarily fails. Clendenin, 238 

Ill. 2d at 317-18. The circuit court therefore did not err in summarily dismissing his postconviction 

petition with respect to this claim. 

¶ 45 Petitioner’s Sentence 

¶ 46 Petitioner next argues that the circuit court was prohibited from considering the transient 

signature qualities of [petitioner’s] youth and rehabilitative potential.” Petitioner states that his 

petition raised an arguable claim that his mandatory minimum 47-year sentence was an 

unconstitutional de facto life sentence due to the “convergence” of statutorily mandated firearm 

enhancements, consecutive sentencing, and truth-in-sentencing provisions. Petitioner asserts that 

he raised an arguable basis of a constitutional claim based upon the “evolving neuroscientific 

research and consensus on young adult brain development, as well as the flux in the law” as to 

what extent the reasoning of Miller v. Alabama, 567 U.S. 460 (2012), applies to individuals over 

the age of 18. He asks that we remand this cause for further postconviction proceedings. 

¶ 47 Petitioner first contends that Miller, which held that the Eighth Amendment prohibited 

mandatory life sentences for offenders under the age of 18, should nonetheless extend to young 

adult offenders such as himself. Petitioner argues that the circuit court should not have imposed a 

47-year “de facto life sentence” on him without considering various “youth-related factors.” 
No. 1-17-2016 

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¶ 48 Petitioner’s claim is unavailing. Miller explicitly held that the Eighth Amendment only 

prohibits “mandatory life without parole for those under the age of 18” at the time of their crimes. 

(Emphasis added.) Miller, 567 U.S. at 465. Our supreme court later observed that, when the 

United States Supreme Court held that 18 would be the age to differentiate between juvenile and 

adult offenders, it was not “based primarily on scientific research” and merely coincided with the 

point where society determines adulthood and childhood for many other purposes. People v. 

Harris, 2018 IL 121932, ¶ 60 (citing Roper v. Simmons, 543 U.S. 551, 574 (2005)). The Harris

court further noted that new research findings still did not alter that “traditional line.” Id. The 

court then expressed agreement with those courts that had repeatedly rejected this claim and held 

that the age of 18 still marked the line between juveniles and adults for sentencing purposes. 

Id. ¶ 61. Petitioner would clearly wish to change where that line is drawn but doing so is best left 

to the legislature. See generally, People v. Buffer, 2019 IL 122327, ¶¶ 34-35. 

¶ 49 Petitioner next contends that his sentence violates the proportionate penalties clause of the 

Illinois constitution. This clause provides in relevant part that “All penalties shall be determined 

both according to the seriousness of the offense and with the objective of restoring the offender to 

useful citizenship.” Ill. Const. 1970, art. I, § 11. A sentence violates the proportionate penalties 

clause if it is “cruel, degrading, or so wholly disproportionate to the offense as to shock the moral 

sense of the community.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005) (citing People v. Moss,

206 Ill. 2d 503, 522 (2003)). We may determine whether a sentence shocks the moral sense of the 

community by considering both objective evidence and “the community’s changing standard of 

moral decency.” People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008).

¶ 50 Petitioner argues that his sentence shocks the moral conscious of the community because 

of recent studies on adolescent brain development, various studies on prisoner life expectancy, and 
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petitioner’s history and rehabilitative potential. Petitioner also argues that, pursuant to our 

supreme court’s holding in Harris, his petition must advance for further proceedings. 

¶ 51 The 18-year-old defendant in Harris argued on direct appeal that his 76-year sentence 

shocked the moral sense of the community given the facts of his case, his youth, and other 

mitigating circumstances. Harris, 2018 IL 121932, ¶ 36. The court, however, noted that there 

was no evidentiary hearing or factual development to support the defendant’s claim in the trial 

court. Id. ¶ 46. The court thus held that the record was insufficiently developed to address his 

contention that Miller applied to his proportionate penalties claim. Id. ¶ 48. Nonetheless, the 

Harris court observed that the defendant could raise the claim in a postconviction petition. Id. 

¶ 52 Here, petitioner argues that he should have the opportunity to develop the record to 

determine whether the protections of Miller can apply to a 20-year-old offender. It is well 

established, however, that although the threshold for a postconviction petition’s survival at the first 

stage of proceedings is low, a pro se petitioner is not excused from providing any factual detail at 

all. Hodges, 234 Ill. 2d at 10. As noted above, section 122-2 of the Act requires that a petitioner 

either attach affidavits, records, or other evidence supporting the allegations or explain their 

absence. 725 ILCS 5/122-2 (West 2016). There is nothing attached to petitioner’s postconviction 

petition to support his assertion that his own immaturity or circumstances support his claim that 

his sentence is an unconstitutional de facto life sentence. Instead, his petition (but not his affidavit) 

merely contains general assertions that immaturity and brain development commonly associated 

with juveniles can also extend into young adulthood. Petitioner’s recitation of various general 

studies regarding the evolving science of juvenile maturity and development is insufficient to 

survive the requirement that his petition must have some factual detail (in the form of affidavits or 

other evidence) in support of his claim. Hodges, 234 Ill. 2d at 10. 
No. 1-17-2016 

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¶ 53 In addition, while he makes various claims in his petition that he had a troubled childhood, 

these claims do not appear in his affidavit, nor are there any affidavits, records, or other evidence

that would provide support for this contention. The purpose of section 122-2’s requirement of 

attaching “affidavits, records, or other evidence” to a postconviction petition is that it “shows that 

the verified allegations are capable of objective or independent corroboration.” Collins, 202 Ill. 

2d at 67. As noted above, this failure by itself justifies the petition’s summary dismissal. Id. at

66. The circuit court therefore did not err in summarily dismissing his petition at the first stage. 

¶ 54 Finally, petitioner’s reliance upon People v. House, 2015 IL App (1st) 110580-B, appeal 

allowed, No. 125124 (Jan. 29, 2020), is unavailing. In that case, another division of this court

affirmed the circuit court’s granting of the State’s motion to dismiss at the second stage of 

proceedings, but nonetheless remanded the matter for a new sentencing hearing. Id. ¶¶ 23, 77. 

The court held that the defendant’s mandatory life sentence (following a conviction for murder by 

accountability) violated the proportionate penalties clause, where the defendant was 19 years old 

at the time of the offense, had no prior violent criminal history, and was minimally culpable since 

he acted solely as a lookout. Id. ¶¶ 46, 64. Notably, the House court stated that the defendant’s 

1993 conviction under an accountability theory “weighed heavily in our conclusion that his 

mandatory natural life sentence shocked the moral conscience of the community.” Id. ¶ 32. The 

court further observed that, although the defendant received a mandatory natural life sentence, the 

17-year-old codefendant, who “either fired the gun at the victims or struck them with the gun,” 

was sentenced to 44 years’ imprisonment with day-for-day good conduct credit and released in 

April 2018. Id. ¶¶ 35-36. 

¶ 55 Here, petitioner was not convicted based upon mere accountability: petitioner placed a gun 

against J.M.’s chin while she was holding her and petitioner’s infant son, forced her into an upstairs 
No. 1-17-2016 

18 

bathroom, raped her, and then later slapped her when she had the temerity to laugh at his attempt 

to blame her for both “messing up his life” and his criminal record. J.M. also identified petitioner

as her attacker, never recanted her accusation, and was consistent in recounting the attack and 

characterizing it as rape and not sex. As to the attempted murder conviction, J.M. testified that 

petitioner shot “at” Brown, Darby-Jones testified that petitioner shot in Brown’s direction, and 

Brown testified that he saw petitioner point the gun at him before he fled. Brown further stated 

that the shots came from behind him and were close to him. 

¶ 56 Finally, we note that House involved a second-stage dismissal following the appointment 

of counsel and the amendment of the defendant’s petition, which included a witness’s affidavit 

and other “newly discovered evidence of police misconduct.” House, 2015 IL App (1st) 

110580-B, ¶¶ 23, 34. This case concerns proceedings at the first stage and lacked evidentiary 

support, which alone can justify summary dismissal. Hodges, 234 Ill. 2d at 10; Collins, 202 Ill. 

2d at 66. Consequently, House is distinguishable, and we cannot hold that petitioner’s sentence 

shocks the moral sense of the community. Petitioner therefore cannot make an arguable claim that 

his minimum 47-year sentence is an unconstitutional de facto life sentence.

¶ 57 CONCLUSION

¶ 58 Petitioner’s trial counsel did not render ineffective assistance for allegedly failing to 

investigate petitioner’s proposed testimony prior to advising him not to testify. In addition, 

petitioner’s 47-year aggregate sentence is not an unconstitutional de facto life sentence. The circuit 

court thus did not err in summarily dismissing petitioner’s petition for postconviction relief. 

¶ 59 Affirmed.