2 02 3 IL App (1st) 221817

- U No. 1 -22-1817 Order f iled December 1 , 20 23
FIFTH 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.
TYRONE McHATTEN , Defendant -Appell ant

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

. No. 02 CR 15109 01
Honorable Maria Kuriakos

- Ciesil , Judge Presiding.

JUSTICE LYLE delivered the judgment of the court. Presiding Justice Mitchell and Justice Mikva concurred in the judgment. O RDER ¶ 1 Held : We affirm the judgement of the circuit court denying defendant’s motion for leave to file a successive postconviction petition where defendant cannot show cause for failing to raise his proportionate penalties sentencing challenge in his initial postconvic tion petition. ¶ 2 Defendant, Tyrone McHatten, who was 21 years old at the time of the offense, appeals the circuit court’s denial of his motion for leave to file a successive petition for relief pursuant to the
Post

- Conviction Hearing Act (Act) ( 725 ILCS 5/1 22- 1 to 122 -7 (West 2020) ) . On appeal, Mr.No. 1 -22-1817

- 2 - McHatten contends that the circuit court erred in denying him leave to file his successive petition where he satisfied the cause and prejudice test by demonstrating that he could not have filed his petition before recent changes in the law concerning the sentencing of young adult offenders, and that he was prejudiced by the sentencing court’s failure to consider his age in determining his sentence of 60 years’ imprisonment. For the reasons that follow, we affirm th e judgment of the circuit court. ¶ 3 I. BACKGROUND ¶ 4 A. Evidence at Trial ¶ 5 A full recitation of the facts from Mr. McHatten ’s jury trial can be found in this court’s order on his direct appeal. People v. McHatten , No. 1 -07-1092 (2010) (unpublished order under Supreme Court Rule 23) . As relevant here, Mr. McHatten was convicted of first

- degree murder, home invasion, and residential burglary following an incident on May 8, 2002, where he broke into the home of Lucy Woodcock (Lucy) and her brother, Eddie Amos (Eddie). Lucy and Eddie, who were both in their 70s, owned and operated a small convenience store out of their home. On the night of the incident, Mr. McHatten broke into their home and demanded money. Following a physical altercation with Eddie, Mr. McHatten grabbed Eddie’s gun. Lucy told Mr. McHatten that he should leave and that she recognized him. Mr. McHatten forced Lucy to the floor and shot her in the back of the neck, killing her. The trial court sentenced Mr. McHatten to 25 yea rs for first

degree murder with a mandatory 25

- year firearm enhancement because the jury found that Mr.
McHatten personally discharged a firearm that proximately caused death. The trial court also sentenced Mr. McHatten to a consecutive 10

- year term for ho me invasion.No. 1 -22-1817

- 3 - ¶ 6 Mr. McHatten did not immediately file a direct appeal, but on December 4, 2006, filed his initial postconviction petition alleging that his trial counsel was ineffective in failing to file a direct appeal on his behalf. The circuit court deni ed the State’s motion to dismiss the petition and permitted Mr. McHatten to file a late notice of appeal to perfect his direct appeal. This court affirmed Mr. McHatten’s convictions and sentences on direct appeal over his contentions that he was denied a f air trial and that he was denied his right to confront the witnesses against him.
McHatten , No. 1 -07-1092. ¶ 7 B. Postconviction Proceedings ¶ 8 Mr. McHatten filed his first successive postconviction petition on September 25, 2012. In the pro se petition, Mr. McHatten alleged, inter alia , that his custodial statement was involuntary, that the prosecutor made improper remarks during closing argument, and that the State did not prove him guilty beyond a reasonable doubt. The circuit court treated the successive petition as an initial petition and dismissed the petition at the first stage of postconviction proceedings . On appeal, this court granted appellate counsel’s motion for leave to withdraw pursuant to Pennsylvania v. Finley , 481 U.S. 51 (1987) and affirmed the circuit court’s summary dismissal

. People v. McHatten , 2013 IL App (1st) 130041 -U (summary order). ¶ 9 Mr. McHatten filed a successive pro se petition on December 30, 2015, arguing that he was arrested without probable cause and that his trial counsel provided ineffective assistance where counsel failed to challenge the validity of his arrest warrant. The circuit court denied him leave to file, finding tha t he failed to satisfy the cause

- and

- prejudice test and this court denied him leave to file a late notice of appeal from that order.No. 1 -22-1817

- 4 - ¶ 10 Mr. McHatten filed another pro se postconviction petition on March 8, 2019, again arguing ineffective assistance of trial counsel. The circuit court denied Mr. McHatten leave to file and he did not appeal. ¶ 11 On December 30, 2020, Mr. McHatten filed the pro se successive petition at bar. In the petition, Mr. McHatten contended that his sentences violated the eighth amendment of the United States Constitution ( U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois Constitution ( Ill. Const. 1970, art. I, § 11 ). Mr. McHatten alleged that he satisfied the caus e prong of the cause and prejudice test because in Miller v. Alabama , 567 U.S. 460 (2012), the Supreme Court announced a new substantive rule for sentencing, which was extended to young adults over the age of 18 in this court’s decision in People v. House , 2019 IL App (1st) 110580

- B ( rev ’ d, in part, and vacated, in part, 2021 IL 125124). He further asserted that he satisfied the prejudice prong because the sentencing court did not consider his youth and the other factors enumerated by the Supreme Court in Miller

. ¶ 12 The circuit court denied Mr. McHatten leave to file in a written order finding that his sentence did not violate the proportionate penalties clause or the eighth amendment. The court found that the sentence did not “ ‘shock the moral sense of community’ ” and that he failed to present legal authority to support his sentencing claim where he was convicted of murder and was the sole perpetrator of the offense

. The court found that Miller did not apply directly to Mr.
McHatten ’s circumstances because he was an adult at the time of the offense and Mr. McHatten failed to identify any legal basi s to apply the tenets of Miller to his case. The court therefore found that Mr. McHatten had failed to satisfy the cause and prejudice test for filing successive postconviction petitions and denied him leave to fi le.No. 1 -22-1817

- 5 - ¶ 13 Mr. McHatten filed his notice of appeal within 30 days of the circuit court’s denial of leave to file. We find that we have jurisdiction to consider the merits of this appeal pursuant to Illinois Supreme Court Rule 651(a) (eff. July 1, 2017). ¶ 14 II. ANALYSIS ¶ 15 On appeal, Mr. McHatten contends that the circuit court erred in denying him leave to file his successive postconviction petition where his pleadings established the cause and prejudice necessary for filing a successive postconviction petition. Mr. McHatten asserts t hat he established cause because he could not have raised his proportionate penalties 1 challenge to his sentence before the Supreme Court’s ruling in Miller and this court’s ruling in House . He further contends that he demonstrated prejudice because the s entencing court could not have considered the factors present
in Miller and House and the emerging science concerning brain development in young adults in determining his sentence. Mr. McHatten contends that we should therefore reverse the circuit
court’s denial of leave to file and remand for further postconviction proceedings. ¶ 16 A. Postconviction Hearing Act ¶ 17 The Act provides a mechanism by which a criminal defendant may assert that his conviction was the result of a substantial denial of his constitutional rights. 725 ILCS 5/122 -1 (West 20 20 ); People v. Delton , 227 Ill. 2d 247, 253 (2008). Generally, the Act contemplates the filing of only one postconviction petition ( People v. Ortiz , 235 Ill. 2d 319, 328 (2009)), and provides that any claim of a substantial denial of constitutional rights not raised in the original or amended petition is waived (725 ILCS 5/122

- 3 (West 20 20 )). However, the bar against successive

1 We note that Mr. McHatten has abandoned the eighth amendment challenge to his sentence that he raised in his pro se petition by not raising the argument on appeal.No. 1 -22-1817

- 6 - petitions may be relaxed where defendant can establish cause and prejudice for his failure t o raise the claim earlier ( People v. Pitsonbarger , 205 Ill. 2d 444, 459 (2002)), or actual innocence ( Ortiz , 235 Ill. 2d at 329). ¶ 18 Under the cause - and -prejudice test, leave of court may be granted only if a defendant demonstrates both cause for his failure to bring a claim in an initial postconviction petition and prejudice resulting from that failure. 725 ILCS 5/122

- 1(f) (West 20 20)

. For purposes of section
122- 1(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. ” Id. At this stage of proceedings, all well

- pleaded factual allegations and supporting affidavits are taken as t rue unless they are positively rebutted by the record of the original trial proceedings. Pitsonbarger , 205 Ill. 2d at 467. We review the denial of a defendant’s motion for leave to file a successive postconviction petition de novo. People v. Bailey , 2017 I L 121450, ¶ 13 (citing People v. Wrice , 2012 IL 111860, ¶ 50). ¶ 19 We will first address whether Mr. McHatten established cause for his failure to bring this claim in his initial petition

. In contending that he satisfied the cause prong o f the cause

- and

preju dice test, Mr. McHatten contends that he could not have brought the claim in a previous petition under the Act because he is relying on a recent evolution of our sentencing law that extends juvenile sentencing protections to young adult offenders. In support of his argument , Mr. McHatten relies on the long line of Illinois and United States Supreme Court cases beginning with the United States Supreme Court’s decisions in Roper v. Simmons , 543 U.S. 551 (2005), GrahamNo. 1 -22-1817

- 7 - v. Florida , 560 U.S. 48 (2010), and Miller , 567 U.S. 460. In Miller , the Supreme Court held that mandatory life sentences for juveniles violate the eighth amendment’s prohibition against cruel and unusual punishment. Miller , 567 U.S. at 489. In Montgomery v. Louisiana , 577 U.S. 190 (2016), the Court determined that Miller should apply retroactively and that state courts must apply Miller in collateral proceedings. ¶ 20 In People v. Thompson , 2015 IL 118151 and People v. Harris , 2018 IL 121932 , our supreme court addressed claim s of young adult offender s who challenged their sentence s based on the principles identified by the Supreme Court in Miller

. In Harris , our supreme court determined that because the defendant was over 18 years old at the time of his offense, Miller did not appl y directly to his circumstances and that he was foreclosed from raising a challenge to his sentence under the eighth amendment

. Harris , 2018 IL 121932 , ¶ ¶ 45 , 54 -60

. However, t he Harris court did not make the same definitive determination with regard to th e defendant’s proportionate penalties challenge to his sentence under Miller

. Id. ¶ 48. The Harris court held that young adults who raise such a challenge to their sentence are required to develop a record on how the evolving science of juvenile brain development applied to their specific facts and circumstances. Id. ¶ 46. The Harris court did not resolve the defendant’s claim, but found that the defendant was “not necessarily foreclosed” from raising an as -applied proportionate penalties challenge to his sentence in another proceeding, such as in a petition under the Act. Id. ¶ 48. ¶ 21 Following Thompson and Harris , numerous young adult offenders sought to have their sentences declared unconstitutional on Mill er principles. In his pro se petition, Mr. McHatten relied on one such case, House , 2019 IL App (1st) 110580 -B

. Mr. McHatten recognizes that since his petition was filed, our supreme court granted the State’s leave for petition to appeal from thatNo. 1 -22-1817

- 8 - opinion and entered its decision in People v. House , 2021 IL 125124, reversing in part and vacating in part this court’s decision in House , 2019 IL App (1st) 110580 . In his briefs before this court , Mr. McHatten now primarily relies on the supreme court’s decision in House , 2021 IL 125124 i n contending that the circuit court erred in denying him leave to file his successive petition. In House , the supreme court remanded for second stage proceedings under the Act where the 19

- year -old offender rai sed a proportionate penalties challenge to his natural life sentence in his initial petition under the Act

. Relying on Harris , the House court determined that the defendant should be permitted an opportunity to develop the record to demonstrate how Miller and the evolving science of juvenile brain development applied to his specific facts and circumstances. Id. ¶¶ 31 -32. Mr. McHatten asserts that he would not have been able to raise his proportionate penalties claim before the supreme court’s decision in House

. ¶ 22 Our supreme court has recently addressed the issue of whether successive postconviction petitions challenging the defendant’s sentence on Miller

- based principles are sufficient to satisfy the cause prong of the cause

- and

- prejudice test. First, in Pe ople v. Dorsey , 2021 IL 123010, a juvenile offender sought leave to file a successive postconviction petition to challenge his sentence under Miller pursuant to the proportionate penalties clause. Id. ¶ 68. The supreme court found that the defendant had failed to show cause because “ Miller’s announcement of a new substantive rule under the eighth amendment does not provide cause for a defendant to raise a claim under the proportionate penalties clause.” Id. ¶ 74. The court noted that “Illinois courts have long recognized the differences between persons of mature age and those who are minors for purposes of sentencing” and that “ Miller’s unavailability prior to 2012 at best deprived defendant of ‘someNo. 1 -22-1817

- 9 - helpful support’ for his state constitutional law claim, which is insufficient to establish ‘cause .’ ” Id. ¶ 23 Next, the supreme court addressed the same issue with regard to a 24- year - old defendant who suffered from “mental impairments.” People v. Clark , 2023 IL 127273, ¶ 1. In finding that the defendant failed to satisfy the cause prong of the cause

- and

- prejudice test, the Clark court cited Dorsey with approval, finding that, “[l]ong before Miller , Illinois law recognized the reduced culpability of defendants with intellectual disabilities. ” Id. ¶ 62. The court continued that, “[a] s we concluded in Dorsey , the unavailability of Miller and [ Atkins v. Virginia , 536 U.S. 304 (2002)] did not impede defendant ’s presentation of his proportionate penalties claim on direct appeal or
i mpede his opportunity to raise the claim in his first postconviction proceeding. ” Id. ¶ 67. The court concluded that the defendant failed to establish cause for his failure to raise the claim earlier, holding, “ citing the Miller line of cases does not satisfy the ‘ cause ’ prong of the cause

- and

prejudice test for raising a proportionate penalties claim in a successive postconviction petition, as Miller’s unavailability does nothing to explain why defendant neglected to raise the p roportionate penalties clause claim in his prior postconviction proceedings. ” Id. ¶ 94. Relying on Dorsey , the Clark court noted that Illinois courts have long held “t hat the proportionate penalties clause required the circuit court to take into account the defendant's ‘youth’ and ‘ mentality ’ in fashioning an appropriate sentence. ” Id. ¶ 92. ¶ 24 Finally, in People v. Moore , 2023 IL 126461, the supreme court affirmed the circuit court’s denial of the 19

- year - old defendants’ motions for leave to file successive petition s under the Act where they challenged their life -without- parole sentences on eighth amendment and proportionate penalties grounds under Miller

. In rejecting the defendants claims under the eighth amendment,No. 1 -22-1817

- 10 - the Moore court found that Miller did not change the sentencing law applicable to young adult offenders. Id. ¶ 38. Quoting Clark , the Moore court found that “ Miller’s unavailability prior to 2012 at best deprived defendant of some helpful support for his [eighth a mendment] claim, which is insufficient to establish cause.” (Internal quotation marks omitted.) Id. (quoting Clark , 2023 IL 127273, ¶ 67). The Moore court further noted that Miller did not apply to discretionary life

sentences. Id. The court concluded that : “ Because Miller did not change the law applicable to discretionary life sentences imposed on young adults, including the sentences imposed on both [defendants] , Miller did not give them cause to raise new challenges to their sentences as violations of th e eighth amendment. ” Id. ¶ 25 In addressing the defendants claims under the proportionate penalties clause, the Moore court again relied on Clark in finding: “ Miller does not present new proportionate penalties clause principles with respect to discretionary sentencing of young adult offenders. Instead, defendant had the essential legal tools to raise his present proposed claim under the proportionate

- penalties clause when he filed his previous postconviction petitions.” (Internal quotation marks omitted.) Id. (quoting Clark , 2023 IL 127273, ¶ 93.). The court concluded that Miller did not provide cause for the proportionate penalties challenges advanced by the defendan ts in their successive postconviction petitions because Miller did not change the law applicable to young adults. Id. ¶ 26 Thus, under Dorsey , Clark , and Moore , it is clear that a young adult offender who receives a discretionary life sentence

— whether natural or de facto ( People v. Buffer , 2019 IL 122327, ¶ 40)— cannot establish cause to file a successive postconviction petition where he challenges his sentence on eighth amendment and proportionate penalties grounds under the Miller line of cases.
Mr. McHatten n onetheless attempts to distinguish this supreme court precedent arguing that noneNo. 1 -22-1817

- 11 - of these cases considered whether a defendant could bring such a challenge pursuant to House

. This argument, however, misunderstands our supreme court’s holding in those case s. As the supreme court explained, Mr. McHatten has failed to establish cause because at the time of his sentencing, before Miller and its progeny (including House ) were decided , Illinois courts recognized the special status of young adults in sentencing. Miller , and the cases based on Miller , did not create a constitutionally significant change to that practice

. Moore , 2023 IL 126461, ¶ 42. Notably, the supreme court decided Clark and Moore after its decision in House and it did not carve out a specific exception for that case. ¶ 27 Indeed, f ollowing Dorsey , this court has repeatedly found that young adult offenders cannot establish the cause required for leave to file a successive postconviction petition where the defendant’s cl aim is based on the proportionate penalties clause and the Miller line of cases. See People v. Peacock , 2022 IL App (1st) 170308 -B , ¶ 20 (collecting cases); People v. Gomez , 2022 IL App (1st) 200317

- U, ¶ 56 ( same ). As this court explained in People v. Knig ht , 2022 IL App (1st) 210026

- U, ¶ 15 the absence of House and other more recent Miller caselaw at the time Mr. McHatten filed his initial postconviction petition, “ at best deprived the defendant of some helpful support for his state constitutional claim, w hich is insufficient to establish cause. ” See also People v. Howard , 2021 IL App (2d) 190695, ¶ 39 (finding the 20- year - old defendant had failed to establish cause to file his Miller

- based proportionate penalties challenge to his sentence : “ Rather,
Harris and House provided additional support by presenting particular factual scenarios to which the courts in those cases applied established constitutional principles. The absence of those decisions did not prevent defendant from alleging in his initial petition that the trial court violated the proportionate penalties clause by failing to consider his youth and its attendant circumstancesNo. 1 -22-1817

- 12 - as factors in mitigation. ”). In essence, the proportionate penalties clause was in existence before
Mr. McHat ten filed his initial postconviction petition, and although the emergence of Miller and related cases may have provided additional support for his proportionate penalties argument, “the emergence of such support for a claim that was already raisable does not constitute cause.” Peacock , 2022 IL App (1st) 170308 -B , ¶ 22 (citing Dorsey , 2021 IL 123010, ¶ 74). ¶ 28 Accordingly, pursuant to Dorsey , Clark , and Moore , we find that Mr. McHatten cannot establish cause for his Miller

- based proportionate penalties claim. B ecause we find that Mr. McHatten cannot show cause for his failure to bring his proportionate penalties claim sooner, we need not consider whether he adequately stated a prima facie showing of prejudice. Moore , 2023 IL 126461, ¶ 42. ¶ 29 III. CONCLUSION ¶ 30 Fo r the reasons stated, we affirm the judgment of the circuit court of Cook County. ¶ 31 Affirmed.