## Illinois Official Reports

Appellate Court

People v

. Nichols

, 20 21 IL App ( 2d ) 190659

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff

- Appellee, v. RICKIE T. NICHOLS, Defendant

- Appellant.

District & No. Second District

No. 2

- 19

- 0659

Filed June 10, 2021

Decision Under

Review Appeal from the Circuit Court of Lake County, No. 08

- CF

- 3797; the Hon. Patricia S. Fix, Judge, presiding.

Judgment Affirmed.

Counsel on
Appeal James E. Chadd, Douglas R. Hoff, and Robert N. Markfield, of State Appellate Defender’s Office, of Chicago, for appellant.

Eric F. Rinehart, State’s Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Adam Trejo, of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Schostok and Hudson concurred in the judgment and opinion.- 2

- OPINION

¶ 1 Defendant, Rickie T. Nichols, appeals the denial of his motion for leave to file a successive postconviction petition. He claims that we should relax the bar of res judicata because two opinions from other Illinois appellate districts changed the law that this court relied on in denying defendant relief in a prior appeal. We determine that the bar of res judicata cannot be relaxed here, as the change in the law did not come from a higher court. Accordingly, we

affirm.

¶ 2 I. BACKGROUND
¶ 3 This case was previ ously before us twice. See People v. Nichols , 2012 IL App (2d) 100028 ( Nichols I ); People v. Nichols , 2018 IL App (2d) 150779

- U ( Nichols II ). We repeat only the background necessary to resolve the issues in this current appeal.
¶ 4 On the evening of September 9, 2008, defendant, who was 16 years old, was visiting with his friend, Stephen Knighten. While armed with an air pistol, defendant and Knighten walked around their neighborhood, looking for someone to rob. Defendant and Knighten soon

encountered K.H. Def endant pointed the pistol at K.H., and he and Knighten forced K.H. to accompany them behind some bushes. Defendant forced K.H. to fellate him while he pointed the gun at her. Afterward, Knighten forced K.H. to fellate him.

¶ 5 Based on these events, defendant was charged with, among other things, two counts of aggravated criminal sexual assault (720 ILCS 5/12

- 14(a)(1) (West 2008)). One of these counts charged defendant for Knighten’s actions under an accountability theory. See id. § 5

- 2. Given

the nature of th e offenses, the automatic transfer statute (see 705 ILCS 405/5

- 130 (West 2008))

mandated that defendant be tried as an adult.
¶ 6 Following a jury trial, defendant was found guilty of both counts of aggravated criminal sexual assault, which are Class X feloni es (720 ILCS 5/12

- 14(d)(1) (West 2008)). The court sentenced him to an aggregate term of 32 years’ imprisonment, which was the minimum sentence that the trial court could impose. 1

¶ 7 Defendant appealed, arguing that section 5

- 8

- 4(a)(ii) of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5

- 8

- 4(a)(ii) (West 2008)), which is the mandatory consecutive sentencing law, violated his due process and proportionate penalties rights under the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 11). Nichols I , 2012 IL App (2d) 100028, ¶ 73. Specifically, defendant claimed that imposing mandatory consecutive sentences under

section 5

- 8

- 4(a)(ii) resulted in a sentence that was “disproportionate when considered in light of his age, his criminal history, and the seriousness of the offenses.” Id. ¶ 75. We determined

that no constitutional violation arose and affirmed the sentences. Id. ¶¶ 79, 86.

1 The minimum sentence for each Class X offense was 6 years in prison (730 ILCS 5/5

- 8

- 1(a)(3) (West 2008)). Due to the nature of the offenses, defendant was required to serve the sentences on each count consecutively ( id. § 5

- 8

- 4(a)(ii)). Thus, if no other sentencing provisions applied, the minimum aggregate sentence defendant could r eceive was 12 years. However, defendant was subject to a mandatory sentencing enhancement of 10 years on each count because he displayed to K.H. an object that appeared to be a dangerous weapon (720 ILCS 5/12

- 14(d)(1) (West 2008)). Accordingly, instead

of two consecutive 6

- year terms, the minimum sentence defendant could receive was two consecutive

16

- year terms, or an aggregate sentence of 32 years.- 3

- ¶ 8 Thereafter, defendant petitioned pro se for postconviction relief. Subsequently, (1) the petition survived sum mary dismissal, (2) counsel was appointed, (3) counsel filed an amended petition, and (4) the court held an evidentiary hearing. None of defendant’s issues raised in these proceedings concerned his 32

- year aggregate sentence. The trial court denied the pet ition, and defendant appealed.
¶ 9 On appeal, defendant challenged his 32

- year aggregate sentence, citing the eighth amendment of the United States Constitution (U.S. Const., amend. VIII), which is made applicable to the s tates through the due process clause (U.S. Const., amend. XIV), and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Nichols

II

, 2018 IL App (2d) 150779

- U, ¶ 9. He argued that section 5

- 8

- 4(a)(ii) of the Code of

Corrections , the mandatory conse cutive sentencing law, and section 12

- 14(d)(1) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12

- 14(d)(1) (West 2008)), which required a 10

- year enhancement based on a defendant’s use of what was or appeared to be a dangerous weapon, were unconst itutional as applied to him because they prevented the trial court from considering mitigating circumstances associated with his youth. Nichols II , 2018 IL App (2d) 150779

- U, ¶ 9. Defendant’s eighth amendment argument relied on Miller v.

Alabama , 567 U.S. 460 (2012), and our supreme court’s interpretation of Miller . We rejected

both constitutional claims. Nichols II , 2018 IL App (2d) 150779

- U, ¶¶ 17 , 20. We noted that

our decision in Nichols I did not preclude us from addressing defendant’s constitutional challenges because, among other things, Miller was decided after Nichols I . See id. ¶¶ 11, 15

- 16, 19. We then determined that defendant’s eighth am endment argument was inapposite, as

Miller and the other authorities defendant relied on governed mandatory or discretionary life

sentences and not defendant’s 32

- year aggregate sentence. See id. ¶ 17 (“The court’s point [in People v. Holman , 2017 IL 12065 5,] was that discretionary life sentences, just as much as mandatory life sentences, fall within the concerns expressed in Miller . The court [in Holman ] was not suggesting that Miller applies to sentences other than life sentences.”). We went on to

hold th at “because defendant’s eighth

- amendment claim based on Miller fails, so does his claim under the proportionate

- penalties clause,” as that clause is coextensive with the eighth

amendment. Id. ¶ 20.
¶ 10 After we affirmed the trial court’s denial of defendant’s first postconviction petition, defendant moved to file a successive postconviction petition. In the motion, defendant argued, among other things, that the mandatory dangerous weapon enhancement in section 12

- 14(d)(1) of the Criminal Code, as applied to hi m, violated the proportionate penalties clause. Defendant recognized that he raised this issue in Nichols II . However, defendant asserted that the

decisions reached in People v. Aikens , 2016 IL App (1st) 133578, and People v. Barnes , 2018 IL App (5th) 1403 78, warranted reexamining the issue. Moreover, in making his arguments,

defendant mentioned the cause

- and

- prejudice test, which must be satisfied before a defendant may file a successive postconviction petition, but defendant did not constructively argue h ow that test applies here.
¶ 11 The trial court denied defendant’s motion for leave to file a successive postconviction petition.
¶ 12 This timely appeal followed.- 4

- ¶ 13 II. ANALYSIS
¶ 14 At issue in this appeal is whether the denial of defendant’s motion for leave t o file a successive postconviction petition was proper. We review that issue de novo

. People v. Edgeston , 396 Ill. App. 3d 514, 518 (2009).
¶ 15 The Post

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

- 1 et seq. (West 2018)) allows a defendant to collaterally att ack a prior conviction and sentence where there was a substantial violation of the defendant’s state or federal constitutional rights. People v. Gosier , 205 Ill. 2d 198, 202

- 03 (2001). Although the Act contemplates a defendant filing only one postconvictio n petition, successive postconviction petitions may be filed if the defendant first obtains leave of

court. People v. LaPointe , 227 Ill. 2d 39, 42 (2007); see 725 ILCS 5/122

- 1(f) (West 2018). All issues decided on direct appeal or in an original postconvic tion petition are barred by the

doctrine of res judicata

. People v. Blair , 215 Ill. 2d 427, 443 (2005); see 725 ILCS 5/122

- 3 (West 2018).
¶ 16 Res judicata “results ‘from the practical necessity that there be an end to litigation and that

controversies once de cided on their merits *** remain in repose.’ ” People v. Kines , 2015 IL App (2d) 140518, ¶ 20 (quoting Hughey v. Industrial Comm’n , 76 Ill. 2d 577, 582 (1979)).

Res judicata applies when (1) a court of competent jurisdiction renders a final judgment on the merits (2) that is between the same parties and (3) involves the same cause of action. Id. ¶ 21. Whether a claim is barred by res judicata is also a question of law that we review de novo

. Id. ¶ 20.
¶ 17 Defendant forthrightly admits that the issue he raises now was unsuccessfully raised in his initial postconviction petition. Thus, defendant agrees that res judicata appears to bar his claim now. Nevertheless, defendant argues that the bar of res judicata should be relaxed here, given “changes in caselaw and evolving standards of decency.”
¶ 18 Res judicata is an equitable doctrine. Id. ¶ 21. “In other words, the question is not solely

whether the doctrine of res judicata applies; we must also ask whether it sh ould be applied.” (Emphases in original.) Id. The bar of res judicata may be relaxed, and a defendant may file a successive postconviction petition raising the same issue he raised previously, when fundamental fairness so requires. People v. Lee , 207 Ill. 2d 1, 5 (2003). In deciding whether fundamental fairness requires the relaxation of the res judicata doctrine, we must determine

whether the defendant has satisfied the cause

- and

- prejudice test. People v. Tenner , 206 Ill. 2d 381, 392 (2002); see 725 ILCS 5 /122

- 1(f) (West 2018).
¶ 19 Per the cause

- and

- prejudice test, “ ‘cause’ ” is defined as “any objective factor, external to the defense, which impeded the [defendant’s] ability to raise a specific claim in the initial post

conviction proceeding.” People v. Pits onbarger , 205 Ill. 2d 444, 462 (2002); see 725 ILCS

5/122

- 1(f)(1) (West 2018). “Prejudice” is defined as an error so infectious to the proceedings that the resulting conviction violates due process. Pitsonbarger , 205 Ill. 2d at 464; see 725

ILCS 5/122

- 1(f) (2) (West 2018). Although only a prima facie showing of cause and prejudice is needed ( People v. Bailey , 2017 IL 121450, ¶ 24), a defendant must show both cause and prejudice as to each claim asserted in his proposed successive postconviction petition ( Pit sonbarger , 205 Ill. 2d at 463; see 725 ILCS 5/122

- 1(f) (West 2018)).
¶ 20 Here, although defendant did not fully discuss cause and prejudice in his motion for leave to file a successive petition, he does address cause and prejudice on appeal. Specifically, as to cause, defendant argues that two cases decided after Nichols II

, i.e.

, Barnes and People v.

Womack , 2020 IL App (3d) 170208, “found that a mandatory minimum firearm sentencing- 5

- enhancement, as applied to [a] juvenile defendant, violated the proportionate penalties clause of the Illinois Constitution in that the enhancement no longer reflected society’s evolving standard of moral decency.” (In his motion for leave to file his petition, defendant relied on

Aikens , but that case predated Nichols II .) Citing Womack , defendant asserts that “[he] has satisfied the prejudice component of the test by sufficiently alleging that a mandatory firearm enhancement is unconstitutional as applied to him as a juvenile.”
¶ 21 With the above framework in mind, we first consider whether defendant has established cause. In doing so, we note that both parties recognize that Barnes and Womack came out after

Nichols II was decided. To a certain extent, both parties seem to believe that, for purposes of relaxing res judicata , a change in the law can come from any court. That is not correct.
¶ 22 While it is true that an intervening change in the law can establish cause in considering

whether to relax the bar of res judicata (see People v. Cowherd , 114 Ill. App. 3d 894, 898 (1983)), that rul e applies only when the intervening change in the law comes from the legislature ( Kines , 2015 IL App (2d) 140518, ¶¶ 22

- 24) or a higher court ( People v. Cummings

, 375 Ill. App. 3d 513, 519

- 20 (2007), overruled on other grounds by People v. Ligon , 2016 IL

1 18023). Here, the two cases that defendant cites as representing an intervening change in the law come from other Illinois appellate districts. As the court in Cummings , which neither party has cited, noted:
“[A]ppellate court opinions are not binding on other branches of the appellate court, and a court is not bound to follow a decision of an equal or inferior court. [Citation.]

‘ “ [S]tare decisis requires courts to follow the decisions of higher courts, but does not

bin d courts to follow decisions of equal or inferior courts. ” ’ [Citation.] Additionally, only our supreme court may reverse or overrule a decision of the appellate court, and decisions of intermediate appellate courts are the law of the state or jurisdiction until such decisions are reversed or overruled by the court of last resort. [Citation.] Therefore, the [Illinois Appellate Court] cases [from other districts] upon which [the] defendant relies cannot stand for the proposition that our decision in [the] de fendant’s direct appeal was erroneous.” Id.
¶ 23 Here, because the change in the law that defendant cites is not from a higher court, we

determine that defendant has not established cause. The fact that defendant has failed to

establish cause is fatal to his claim that the bar of res judicata must be rel axed here

— because

defendant must establish both cause and prejudice before filing a successive postconviction petition ( Pitsonbarger , 205 Ill. 2d at 463). Because res judicata bars defendant from raising in a successive postconviction petition the same iss ue he raised in Nichols II , we must conclude that the trial court properly denied his motion to file a successive petition.
¶ 24 Because the intervening change in the law is not from a higher court, our conclusion that

res judicata cannot be relaxed here is co nsistent with a similar equitable principle that is sometimes applied in postconviction proceedings. The law

- of

- the

- case doctrine, like the other preclusion doctrines of res judicata and collateral estoppel, prevents a defendant from “ ‘taking

two bites ou t of the same appellate apple.’ ” Tenner , 206 Ill. 2d at 395 (quoting People v.

Partee , 125 Ill. 2d 24, 37 (1988)). Like res judicata , the law

- of

- the

- case doctrine provides that “rulings made on points of law by a reviewing court are binding *** on subsequ ent appeals to the same reviewing court unless a higher court has changed the law .” (Emphasis added.) People v. Anderson , 2015 IL App (2d) 140444, ¶ 27. The law

- of

- the

- case doctrine does not apply here, as this proceeding involves defendant’s proposed seco nd petition, which is not the- 6

- same “case” as that involving his first postconviction petition (see Tenner , 206 Ill. 2d at 396). However, given the similarities between these two equitable principles, it seems a foregone conclusion that, like the law

- of

- the

- case doctrine, we can relax res judicata here only if the intervening case law came from a higher court.
¶ 25 As a final matter, we comment briefly on the fact that, even if we were to reach the merits, the cases cited by defendant are questionable in light o f subsequent case law. In People v. Buffer , 2019 IL 122327, ¶ 27, our supreme court reaffirmed that,
“to prevail on a claim based on Miller and its progeny, a defendant sentenced for an offense committed while a juvenile must show that *** the defendant wa s subject to a life sentence , mandatory or discretionary, natural or de facto .” (Emphasis added.)

Moreover, Jones v. Mississippi , 593 U.S. ___, 141 S. Ct. 1307 (2021), suggests that the United States Supreme Court is departing, however slightly, from its p osition that courts must consider a juvenile’s youth before imposing a life sentence. See id. at ___, 141 S. Ct. at 1316.
“In short, Miller followed the Court’s many death penalty cases and required that a sentencer consider youth as a mitigating factor wh en deciding whether to impose a life

without

- parole sentence. Miller did not require the sentencer to make a separate finding of permanent incorrigibility before imposing such a sentence.” (Emphasis added.) Id. at ___, 141 S. Ct. at 1316.
Indeed, the disse nt in Jones suggests that the majority’s holding “guts” both Miller and Montgomery v. Louisiana , 577 U.S. 190 (2016), which determined that Miller could be applied retroactively to cases on collateral appeal. Jones , 593 U.S. at ___, 141 S. Ct. at 1328 (Sot omayor, J., dissenting, joined by Breyer and Kagan, JJ.). Thus, even if the bar of

res judicata were relaxed here and we chose to consider Barnes and Womack , we would have to question the viability of those cases in light of Jones and Buffer

.

¶ 26 III. CON CLUSION
¶ 27 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 28 Affirmed.