202 1 IL App (1st) 1 7174 3

- U
FIF TH DIVISION Order filed: February 5, 2021
No. 1-17-1743 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 DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS , Plaintiff

- Appell ee ,

v.

RICHARD CAMPBELL , Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County No. 99 CR 2341 (03)

Honorable Carol M. Howard , Judge, Presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Delort and Justice Rochford concurred in the judgment. O RDER ¶ 1 Held : We affirmed the trial court’s denial of the defendant’s pro se motion for leave to file a successive petition for relief under the Post

- Conviction Hearing Act (725 ILCS 5/122 -1 et seq. (2016)), asserting claims under the eighth amendment to the United Stat es Constitution (U.S. Const., amend. VIII) and the Proportionate Penalties Clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). We held that: (1) having been convicted and sentenced for a murder committed when he was 1 9 years old, the supreme court’s decision in People v. Harris, 2018 IL 121932 foreclosed the defendant’s eighth amendment argument based upon the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012) that his age and 50

-No. 1-17-1743

- 2 - year sentence qualifies him for the senten cing protections afforded to juveniles; and (2) the petition failed to allege facts in support of an as

- applied violation of the Proportionate Penalties Clause showing that the evolving science on maturity and brain development applies to his specific facts and circumstances. ¶ 2 The defendant , Richard Campbell , appeals from an order of the circuit court denying his motion for leave to file a successive postconviction petition seeking relief under the Post

Conviction Hearing Act (Act) (725 ILCS 5/122 -1 et seq. (West 2006)). For the reasons that follow,

we affirm. ¶ 3 The defendant was charged with first degree murder as the re sult of the death of Terrance Willis . The evid ence at trial established that the defendant and his codefendant, Kijel Grant , fired 15 shots at Willis , who later died of his wounds. At the time of the shooting, the defendant was 1 9 years old. Following a jury trial, the defendant was convicted of first degree murder and sentenc ed to 50 years’ imprisonment. The defendant filed a direct appeal from his conviction and this court affirmed. People v. Campbell , No. 1 -01-2203 (2003 ) (unpublished order under Supreme Court Rule 23). Subsequently, the defendant f iled a pro se petition seeking relief un der the Act . The trial

cou rt dismissed the petition at the second stage of that proceeding. The defendant appealed the petition’s dismissal , and this court affirmed

. People v. Campbell , No. 1 -09- 1080 (2010 ) (unpublished order under Supreme Court Rule 23). ¶ 4 On March 23, 2011, the defendant filed his first pro se successive postconviction petition alleging police coercion and that newly discovered evidence demonstrated his actual innocence. The trial court dismissed the petition and the first stage of that proceeding. The defendant appealed the dismissal, and this court affirmed. People v. Campbell , 201 4 IL App (1st) 113074

- U. On July
16 , 2012, the defendant filed his second pro se motion for leave to file a successive postconviction petition alleging, inter alia , ineffective assistance of trial counsel, postconviction counsel, andNo. 1-17-1743

- 3 - appellate counsel. The trial court denied his motion and this court affirmed. People v. Campbell , No. 1-15-2501 (2017) (unpublished order under Supreme Court Rule 23)

. ¶ 5 On April 10 , 2017, the defendant filed a third pro se motion for leav e to file a successive postconviction petition , attaching his affidavit in support. T he defendant alleged , inter alia, that his 50- year sentence for an offense committed when he was 1 9 years old violates both the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) and the Proportionate Penalties Clause of the Illinois Constitution (Ill. Const. 1970, a rt . I, § 11). In support of his claims, the defendant relied upon the United States Supreme Court’s reasoning in Miller v. Alabama , 567 U.S. 460 (2012) , which addressed the constitutionality of mandatory life sentences for juveniles and research showing that an individual’s brain is not fully developed at 1 9 . He argued that, in sentencin g him to a de facto life sentence, the trial cou rt failed to take into consideration his youth and attendant characteristics. The defendant contends that the petition shows that his 1 9- year - old brain was no different than that of a juvenile, and as a conse quence, he was entitled to the same sentencing protections that juveniles are entitled to under the holding in Miller . On May 30, 2017, the trial court denied the defendant ’s motion for leave to file his successive postconviction petition, and this appeal followed. ¶ 6 In urgin g reversal of the order denying him leave to file a successive postconviction petition, the defendant argues only that his motion established both cause for and pre judice from failing to raise constitutional challenges to his 50

- year sent ence under the eighth amendment to the United States Constitu tion and the Proportionate Penalties Clause of the Illinois Constitution

. On the issue of cause for not raising as -applied constitutional challenge s to his 50

- year sentence in his initial postcon viction petition, the defendant argues that the authorities upon which he reliesNo. 1-17-1743

- 4 - were not available when he filed his initial postconviction petition. On the question of prejudice, the defendant asserts that the trial court sentenced him to a de facto life sentence without first considering his youthfulness and its attendant characteristics. No other argument seeking reversal is set forth in his brief, and as a consequence, any other basis for reversal of the trial court’s order has been forfeited. Ill. S. Ct. R 341(h)(7) (eff. May 25, 2018). ¶ 7 Under the Act, a defendant may raise a claim of a constitutional violation in his trial or in sentencing. People v. Edwards , 2012 IL 111711, ¶ 21. The Act contemplates the filing of one postconviction petition. Id. ¶ 2

. Claims not raised in an initial petition are waived ( Id. ¶ 21) unless the defendant can show cause for and prejudice from failing to raise the claim in the earli er petition or makes a colorable claim of actual innocence ( People v. Robinson , 2020 IL 123849, ¶ 42 ) . The Act defines “cause” as “an objective factor that impeded [the petitioner’s] ability to raise a specific claim during his or her initial postconvictio n proceedings.” 725 ILCS 5/122

- 1(f) (West 2016). To establish “prejudice , ” a petitioner must demonstrate that the claim not raised in an initial postconviction proceeding “so infected the trial that the resulting conviction or sentence violated due process .” Id. Our review of the trial court’s denial of leave to file a successive postconviction petition is de novo. Robinson , 2020 IL 123849 , ¶ 39. ¶ 8 In Miller, the Supreme Court held that the eighth amendment to the United States Constitution “forbids a sentenc ing scheme that mandates life in prison without possibility of parole for juvenile offenders

. ” Miller , 567 U.S. at 479. Before sentencing a juvenile offender to life in prison, the sentencing judge must have the opportunity to consider mitigating factors such as, inter alia , the juvenile’s age, the juvenile’s family and home environment, the effects of familial or peer pressure, and the possibility of rehabilitation. Miller, 567 U.S. at 477-78.No. 1-17-1743

- 5 - ¶ 9 Because the defendant was 1 9 years old when he murdered Willis, “ Miller does not apply directly to this circumstance.” People v. Harris , 2018 IL 121932, ¶ 45. “[Y] oung adult defendants are not entitled to a presumption that Miller applies to them.” People v. Ruiz , 2020 IL App (1st) 163145, ¶ 52. In People v. Harris , 2018 IL 121932, ¶¶ 54

- 61, the supreme court set 18 as the age cutoff for sentencing protections in the eighth amendment context. Consequently, the decision in
Harris foreclosed the defendant’s eighth amendment argument that his age and sentence qua lify him for the protections afforded to juveniles pursuant to the holding in Miller. However, the Harris court left open the question of whether a defendant convicted and sentenced to a de facto life sentence for a crime that was committed when he was 1 9 years old could raise an as -applied challenge to his sentence under the Proportionate Penalties Clause of the Illinois Constitution , which provides that “all penalties shall be determined according to the seriousness of the offense and with the objective o f restoring the offender to useful citizenship

. ” (Ill. Const. 1970, a rt . I, § 11); Harris , 2018 IL 121932, ¶ 48. The supreme court in Harris held that such a claim is more appropriately brought in a proceeding under the Act or by means of a petition pursua nt to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)). Id. ¶ 10 However, to satisfy the cause and prejudice prerequisites to the filing of a successive postconviction petition, the defendant must submit enough documentation to allow a court to make that determination. People v. Smith , 2014 IL 115946, ¶ 35. “[U]nder Harris , a young adult defendant must plead and ultimately prove, that his or her individual characteristics require the application of Miller .” Ruiz , 2020 IL App (1st) 163145, ¶ 52

. In his motion for leave to file a successive postconviction petition, the defenda nt was only required to plead facts justifying further proceedings. Id

. ¶ 55. At the motion stage, the allegations of fact in his motion and supporting affidavit must be taken as true. Id

. ¶ 59.No. 1-17-1743

- 6 - ¶ 11 T he defendant was required to show “how the evolving science on juvenile maturity and brain development that helped form the basis for the Miller decision applies to *** [his] specific facts and circumstances.” Harris , 2018 IL 121932, ¶ 46. Other than alleging that he was 1 9 years old when he committed the murder fo r which he was convicted and sentenced to 50 years’ imprisonment, the successive postconviction petition that the defendant sought leave to file fails to set forth any individual characteristics which, even arguably, require that the sentencing protections set forth in Miller should apply to him. Having failed to allege facts showing that the holding in Miller should apply to his particular circumstances, the successive postconviction petition that the defendant sought leave to file is insufficient to suppo rt an as

- applied challenge to the defendant’s sentence under the Proportionate Penalties Clause of the Illinois Constitution. ¶ 12 Based upon the foregoing analysis, we affirm the trial court’s order denying the defendant leave to file a successive postconvicti on petition. ¶ 13 Affirmed.