## Illinois Official Reports

Appellate Court

People v. Colasurdo

, 20 20 IL App ( 3d ) 190356

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

- Appellee, v. JOHN J. COLASURDO, Defendant

- Appellant.

District & No. Third District

No. 3

- 19

- 0356

Filed
Rehearing denied August 14, 2020
September 28, 2020

Decision Under

Review Appeal from the Circuit Court of Kankakee County, No. 04

- CF

- 541; the Hon. Clark E. Erickson, Judge, presiding.

Judgment Affirmed in part and reversed in part.

Cause remanded.

Counsel on
Appeal John James Colasurdo, of Pontiac, appellant pro se

.

Jim Rowe, State’s Attorney, of Kankakee (Patrick Delfino, Thomas D. Arado, and Nicholas A. Atwood, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE CARTER delivered the judgment of the court, with opinion. Justices Holdridge and Schmidt concurred in the judgment and opinion.- 2

- OPINION

¶ 1 Defendant, John J. Colasurdo, appeals following the second

- stage dismissal of his successive postconviction petition. On appeal, he argues that the Kankakee County circuit court lacked jurisdiction over him when he was charged with an offense committed whi le he was 14 years old. Alternatively, defendant argues that he was sentenced in contravention of

Miller v. Alabama , 567 U.S. 460 (2012), and its progeny, requiring vacatur of his sentence. We affirm in part, reverse in part, and remand for further proceed ings.

¶ 2 I. BACKGROUND
¶ 3 On July 29, 2004, the State filed a delinquency petition in which it alleged that defendant had committed the criminal offense of first degree murder (Ill. Rev. Stat. 1989, ch. 38, ¶ 9

- 1(a)(1), (a)(2), (a)(3)). The petition allege d that, on February 20, 1990, defendant stabbed Helen Correll with a knife, causing her death. Defendant was 14 years old at the time of the alleged offense and 29 years old when the State filed its delinquency petition.
¶ 4 After defendant waived his right t o a hearing on the matter, the case was transferred to criminal court. The State subsequently filed an indictment charging defendant with four counts of first degree murder, all relating to the death of Correll. Nearly three years later, on June 29, 2007, defendant filed a motion to vacate his transfer from juvenile court, alleging that he had been mentally unfit at the time of his waiver and that his rights had not been adequately explained to him. With no objection from the State, the circuit court ordere d a new transfer hearing in juvenile court. Following that hearing, the court once again permitted the State to try defendant as an adult.

¶ 5 Defendant proceeded to a jury trial, after which the jury found him guilty on all counts. The jury also found that C orrell’s death was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. A sentencing hearing was held on July 1, 2008. The report of proceedings from that hearing has not been included in the record in the present appeal. T he sentencing order, however, shows that the circuit court sentenced defendant to a term of natural life imprisonment. Defendant filed a motion to reconsider sentence on the basis that, inter alia , “[d]efendant was only fourteen years old at the time of th e murder.” The docket

sheet indicates that the court denied that motion.
¶ 6 On direct appeal, defendant argued that the circuit court had not made a proper inquiry into his posttrial claims of ineffective assistance of counsel. This court rejected that argum ent and

affirmed defendant’s conviction and sentence. People v. Colasurdo , No. 3

- 08

- 0662 (2010) (unpublished order under Illinois Supreme Court Rule 23).

¶ 7 On June 2, 2011, defendant filed his first petition for postconviction relief. In his petition,

defen dant alleged, inter alia , that his sentence amounted to cruel and unusual punishment. Defendant argued that a term of natural life without the possibility of parole was cruel for “[a] youth that is still growing and learning from his/her mistakes, that can not make the right decisions or speak out for themselves.” Defendant also raised a number of complaints regarding the performance of one of his trial attorneys.
¶ 8 The circuit court denied defendant’s petition at the first stage of proceedings. In a written order, the court indicated that defendant had failed to support his ineffectiveness claims with affidavits or other evidence and that he had not “clearly set forth how his constitutional rights- 3

- were violated.” The written order made no reference to defend ant’s eighth amendment claim. Defendant did not appeal the denial of his petition.
¶ 9 On February 22, 2013, defendant filed a motion for leave to file a successive postconviction petition, as well as the proposed petition itself. Among the arguments raised i n the successive petition, defendant contended that he was sentenced in contravention of Miller . He further alleged that the circuit court had failed to consider his age at the time of the offense at sentencing. As cause for his failure to raise that claim in his original postconviction, defendant pointed out that Miller had been decided by the United States Supreme Court on June 25, 2012. Elsewhere in his petition, defendant noted the principle that a void judgment may be attacked at any time.
¶ 10 The circuit court denied defendant’s motion for leave. In the memorandum accompanying its judgment, the court found that defendant “could have raised any of his claims in his original

post

- conviction petition.” The memorandum did not discuss Miller , nor defendant’s c laim that

Miller provided cause for not raising that particular claim earlier.
¶ 11 This court reversed the circuit court’s judgment denying defendant leave. We observed that the cause and prejudice rule for successive postconviction petitions did not apply wh ere a defendant raises a voidness challenge. People v. Colasurdo , 2015 IL App (3d) 130341

- U.
¶ 12 On remand, the circuit court appointed counsel to represent defendant, advancing his petition to the second stage of postconviction proceedings. Appointed counsel filed an amended petition seeking vacatur of defendant’s sentence and a new sentencing hearing

pursuant to Miller

. ¶ 13 Defendant subsequently filed a motion to dismiss counsel and proceed pro se . When that motion was granted, defendant filed a pro se amended successive postconviction petition. In his amended petition, defendant argued that his indictment had been “legally defective because this Court did not have the authority to render judgment convicting [defendant] nor authority to transfer him.” More spec ifically, defendant asserted that the State was not authorized to prosecute an adult for a crime committed by a juvenile. Defendant also continued to argue that the sentencing court had not considered the factors required by Miller . Specifically, defendant alleged that the sentencing court had not considered “his youth, characteristics, and the fact that most youth change.”
¶ 14 Defendant attached to his amended petition portions of the report of proceedings from his sentencing hearing. The excerpted pages begi n as the court is detailing defendant’s criminal history. After noting that defendant had been the victim of violence as a child, the sentencing court opined: “[T]here’s no question in my mind that you’re a very violent person.” The court

also remarked: “Y ou also show a total lack of remorse, a total lack of acceptance or responsibility.” The court then, citing defendant’s criminal history and the “risk [of defendant] being released and harming somebody else in the future,” sentenced defendant to a term of natural life imprisonment.
¶ 15 The State filed a motion to dismiss defendant’s amended petition. The State urged that defendant’s life sentence had been discretionary, unlike the mandatory life sentence at issue in

Miller . The State also asserted that the sen tencing court “took into consideration the defendant’s full and complete history and appropriately utilized discretion.”
¶ 16 Defendant subsequently filed a second amended successive petition. That petition was substantially similar to the first, but added a r eference to People v. Buffer , 2019 IL 122327.- 4

- ¶ 17 The circuit court dismissed defendant’s amended successive petitions on May 13, 2019. In a written opinion, the court rejected defendant’s jurisdictional claim, observing that recent supreme court opinions had definitively established that a person over the age of 21 may be tried in criminal court for a crime committed as a minor. The court also rejected defendant’s

Miller claim, finding that Miller concerned mandatory life sentences

— whereas defendant’s

life se ntence was discretionary

— rendering Miller inapplicable to defendant. The court found Buffer inapplicable as well, stating:

“In Buffer , the Supreme Court found a sentence of 40 years imposed upon a minor for 1st degree murder to be a de facto life sentence. Buffer clearly does not apply to the defendant’s case as the defendant was sentenced to an actual life sentence, not a fixed

number of years as in Buffer .”
Defendant appeals the circuit court’s ruling.

¶ 18 II. ANALYSIS
¶ 19 Defendant, proceeding as a self

- represented litigant, raises two arguments on appeal. First, he argues that jurisdiction in criminal court was lacking because defendan t was a juvenile at the time of his offense. Second, he argues that his sentence was unconstitutional under Miller

. Among the relief requested by defendant for these errors is a request that the order granting

the State’s motion to dismiss be reversed and the matter remanded for further proceedings.
¶ 20 Before addressing defendant’s contentions in full, we must address the procedural posture

of the case. The Post

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

- 1 et seq. (West 2018)) provides a three

- stage process for the adjudication of postconviction petitions. People v.

Boclair , 202 Ill. 2d 89, 99 (2002). At the first stage, a defendant must only state the “gist” of a constitutional claim, and the petition may only be dismissed if it is frivolous and patently

wi thout merit. People v. Gaultney , 174 Ill. 2d 410, 418 (1996). If a petition is advanced to the second stage of proceedings, counsel will be appointed, and the State may then file a responsive pleading. People v. Edwards , 197 Ill. 2d 239, 245

- 46 (2001); 725 ILCS 5/122

- 4 (West 2018).
¶ 21 At the second stage, a defendant must make a substantial showing of a constitutional

violation. People v. Pendleton , 223 Ill. 2d 458, 473 (2006). “At the second stage of proceedings, all well

- pleaded facts that are not positively rebutted by the trial record are to be

taken as true ***.” Id. If a defendant makes the required substantial showing, the petition will

be ad vanced to a third

- stage evidentiary hearing. Edwards , 197 Ill. 2d at 246.
¶ 22 Following this court’s remand in the present case, the circuit court appointed counsel for defendant, and the State filed a motion to dismiss the petition. The court granted that mo tion to dismiss without holding an evidentiary hearing or otherwise advancing defendant’s petition to the third stage. Thus, it is clear that defendant’s amended successive petitions were dismissed at the second stage of postconviction proceedings. We revi ew the circuit court’s

second

- stage dismissal of a postconviction petition de novo

. Pendleton , 223 Ill. 2d at 473

.

¶ 23 A. Circuit Court Jurisdiction
¶ 24 Defendant first argues that his conviction is void because the criminal court did not have jurisdiction o ver him for an offense committed when he was 14 years old. He also argues that the juvenile court was without jurisdiction to order a transfer because defendant was well over 21 years of age when he appeared in that court.- 5

- ¶ 25 Defendant’s claim of voidness is refuted by our supreme court’s decision in People v.

Fiveash , 2015 IL 117669. The defendant in Fiveash was 23 years old when he was charged via criminal court indictment with offenses committed when he was 14 or 15 years old. Id. ¶ 3.

The defendant succes sfully moved for dismissal on the grounds that the exclusive jurisdiction provision of the Juvenile Court Act of 1987 barred his prosecution in criminal court. Id. ¶¶ 6

- 7 (citing 705 ILCS 405/5

- 120 (West 2004)).
¶ 26 The supreme court found the dismissal erron eous, holding that the exclusive jurisdiction provision acted only to prevent persons under the age of 21, and not falling under any exception, from being tried in criminal court. Id. ¶ 16. More simply, the circuit court had jurisdiction over the 23

- year

- o ld defendant regarding offenses committed when he was 14 or 15 years old. Id. The court noted that the defendant, had he been tried as a juvenile, would still have been subject to a potential transfer to criminal court based on his age at the time of the

o ffense. Id. ¶ 19 (citing 705 ILCS 405/5

- 805(3) (West 2004)). The Fiveash court also pointed out that the defendant’s theory, under which neither juvenile nor criminal court would have jurisdiction over him, “creates a strong and perverse incentive for juve nile offenders to take affirmative action to conceal their offenses or to evade apprehension until they turn 21 and would no longer be subject to prosecution.” Id. ¶ 22.
¶ 27 Under Fiveash , the criminal court in this case had proper jurisdiction over defendant . Like

the Fiveash defendant, defendant here could have been transferred from juvenile to criminal court had proceedings commenced while he was a minor. Ill. Rev. Stat. 1989, ch. 37, ¶ 805

- 4(3)(a). Moreover, defendant’s prosecution in criminal court 14 yea rs after his offense did not present any limitations issues, as there is no statute of limitations for first degree murder. 720

ILCS 5/3

- 5(a)(1) (West 2004). As the circuit court had jurisdiction over defendant, it follows

that defendant’s voidness challen ge must fail.
¶ 28 We recognize that while the circuit court had jurisdiction over defendant in criminal proceedings, it did not have jurisdiction to commence juvenile proceedings. See 705 ILCS

405/1

- 2 (West 2004). Any proceedings on the State’s delinquency pe tition then, such as the two transfers of defendant to criminal court, are void for want of jurisdiction. However, any issues relating to those transfers are moot, as criminal proceedings against defendant were independently commenced via grand jury indict ment, just as they were commenced against the

defendant in Fiveash , 2015 IL 117669, ¶ 5. Indeed, as the State points out, in being granted a full transfer hearing to which he was not entitled, defendant was actually provided with greater due process than t hat required by law. Accordingly, we affirm the circuit court’s dismissal of defendant’s amended successive petition with respect to defendant’s jurisdictional or voidness

claim.

¶ 29 B. Miller
¶ 30 Defendant next argues that he is entitled to a new sentencing hearing under Miller and its progeny. While defendant’s argument is largely couched in terms of a request for ultimate relief, he also requests, more generally, a remand for further proceedings in the circuit court.
¶ 31 The State makes no substantive argumen t concerning defendant’s eligibility for Miller relief. Rather, it raises two separate procedural grounds for why this court should not entertain defendant’s claim. First, it argues that the record defendant has provided on appeal is insufficient, which re quires us to affirm the circuit court’s judgment. Second, the State- 6

- contends that defendant’s Miller claim could have been raised on direct appeal and is therefore

forfeited.
¶ 32 In 2005, the United States Supreme Court held in Roper v. Simmons , 543 U.S. 551, 578 (2005), that the imposition of the death penalty on offenders who were under 18 at the time of their offense amounted to cruel and unusual punishment under the eighth amendment. That holding was based largely on the “general differences between juveni les under 18 and adults,” such as an underdeveloped sense of responsibility and a greater susceptibility to negative influences in youth. Id. at 569.
¶ 33 Seven years later, the Court decided Miller . In that case, the Court held that the imposition

of a mandat ory life sentence for a juvenile offender was also in contravention of the eighth

amendment. Miller , 567 U.S. at 489. Notably, the Court did not find that such a sentence was

cruel and unusual per se . Rather, it was the mandatory nature of the sentence

— whi ch foreclosed the court from considering the characteristics mentioned in Roper

— that rendered

such a sentence unconstitutional. Id. at 477

- 78.
¶ 34 In People v. Davis , 2014 IL 115595, ¶ 39, our supreme court held that Miller created a new substantive rule, such that it should be applied retroactively. The United States Supreme Court subsequently reached the same decision. Montgomery v. Louisiana , 577 U.S. 190 (2016). The

Davis court further found that the prior unavailability of a Miller claim constituted “cause” for the failure to raise such a claim in an earlier postconviction petition for purposes of the Act’s cause and prejudice test for successive petitions. Davis , 2014 IL 115595, ¶ 42; 725 ILCS

5/122

- 1(f) (West 2012). Th us, under Davis , a Miller claim may be raised for the first time in a successive postconviction petition where the first postconviction petition predated Miller

. ¶ 35 Following Davis , our supreme court extended the scope of Miller in a series of three cases.

I n People v. Reyes , 2016 IL 119271, ¶ 10, the court held that the imposition of a mandatory,

de facto life sentence required the necessary Miller considerations at sentencing in order to pass constitutional muster. The next year, in People v. Holman , 2017 I L 120655, ¶ 40, the court held that “[l]ife sentences, whether mandatory or discretionary, for juvenile defendants are disproportionate and violate the eighth amendment, unless the trial court considers youth and its attendant characteristics.” Finally, in Buffer , 2019 IL 122327, ¶ 27, the court combined its holdings in Reyes and Holman , finding that the rationale of Miller applies to any “life sentence, mandatory or discretionary, natural or de facto .” The Buffer court created a bright line for determining what constituted a de facto life sentence, drawing that line at 40 years’ imprisonment. Id. ¶ 40.
¶ 36 The imposition of any of the types of sentences contemplated above thus requires special considerations at sentencing. The precise requirements of the sente ncing court were best set out by our supreme court in Holman :

“Under Miller and Montgomery , a juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial court determines that the defendant’s

conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. The court may make that decision only after considering the defendant’s youth and its attendant characteristics. Those characteristics include, but a re not limited to, the following factors: (1) the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s f amily and home environment; (3) the juvenile defendant’s- 7

- degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with poli ce officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Holman , 2017 IL 120655, ¶ 46.
In order to prevail on his Miller claim and attain a new sentencing hearing, then, a de fendant must show that (1) he was under 18 years of age when the offense in question was committed; (2) a life sentence, mandatory or discretionary, natural or de facto , was imposed; and (3) the sentencing court failed to consider his youth and its attenda nt characteristics or failed to find that he was “beyond the possibility of rehabilitation.” Id. ; Buffer , 2019 IL 122237, ¶ 27.
¶ 37 In the present case, there is no dispute that defendant was a juvenile when he committed first degree murder, and his discretio nary natural life imprisonment falls plainly within the

ambit of Holman , and thus Miller . Moreover, defendant alleged in his successive petition that the sentencing court had not satisfied the Miller requirements. He also attached to his petition the pages of his sentencing hearing leading up to the court’s decision, which did not contain any reference to the “characteristics of youth” or any finding that defendant was permanently beyond rehabilitation. See 725 ILCS 5/122

- 2 (West 2018).
¶ 38 The State argues th at the record on appeal is insufficient for us to address defendant’s claim and that this insufficiency must be construed against defendant. Indeed, the report of proceedings of neither sentencing nor any hearing on defendant’s motion to reconsider

sentenc e have been included in the appellate record. The State points out that the circuit court may have considered the characteristics of youth and made the required findings in either of those portions of the record, and it is impossible for this court to dete rmine otherwise on the

record before us.
¶ 39 It is well settled that “an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error.” Foutch v. O’Bryant , 99 Ill. 2d 389, 391

- 92 (1984). Any doubts arising from the incompleteness of the appellate record must be construed against the appellant. Id. at 392. The State is correct in one sense: We may not grant defendant full relief in the form of a new sentencing hearing based upon the record before us. Without the full record of sentencing and of a potential hearing 1 on defendant’s motion to reconsider sentence, we cannot determine whether the Miller requirements were satisfied.
¶ 40 The State’s argument, however, ignores the procedural posture of the case . Defendant’s successive petition was dismissed at the second stage of proceedings. At this stage, defendant’s factual allegations must be taken as true unless affirmatively rebutted by the record. Pendleton

, 223 Ill. 2d at 473. As defendant has alleged th at the sentencing court failed to consider the characteristics of youth, and that allegation is not rebutted by the record, we assume it to be

true. Foutch does not stand for the proposition that a reviewing court must affirm every time any portion of a tr ial record is not included on appeal. Rather, an appellant need only include those portions of the record necessary “to support a claim of error.” Foutch , 99 Ill. 2d at 391

- 92. Because we assume defendant’s allegations to be true at this stage, defendant d oes not need the full record to support his claim that his petition should have been advanced to the third stage. To be sure, if the full record were to show that the sentencing court had complied with

1 Without the benefit of the record, we cannot even determine whether there was any sort of formal hearing on defendant’s motion.- 8

- Miller , we would affirm the dismissal of defendant’s a mended petition. We note that the State was free to procure the missing reports of proceedings and seek leave to supplement the appellate record in order to make such a showing, but it elected not to do so. See, e.g. , People v. Cunningham , 2012 IL App (3d) 100013, ¶ 10.
¶ 41 The State next argues that defendant forfeited his Miller claim by not raising it on direct appeal. See, e.g. , People v. English , 2013 IL 112890, ¶ 22 (“Issues that were raised and decided on direct appeal are barred by res judicata , an d issues that could have been raised on direct appeal, but were not, are forfeited.”). This court decided defendant’s direct appeal in 2010, two years before Miller and seven years before Holman , the case that extended Miller to apply to discretionary life sentences. Nevertheless, the State argues that defendant’s claim was available to him as early as 2005, when the United States Supreme Court recognized in Roper that juveniles must be subject to special considerations at sentencing.
¶ 42 We reject the State’s forfeiture argument because it is contrary to our supreme court’s holding in Davis . The Davis court held that there was good cause for failing to raise a Miller

claim before Miller was decided, namely, “because it was not available earlier to counsel.”

Da vis , 2014 IL 115595, ¶ 42. The United States Supreme Court, in addressing the federal cause and prejudice test, has explained the rationale for excusing the “failure” to raise previously

unavailable claims:
“[I]f we were to hold that the novelty of a const itutional question does not give rise to cause for counsel’s failure to raise it, we might actually disrupt state

- court proceedings by encouraging defense counsel to include any and all remotely plausible constitutional claims that could, some day, gain re cognition. ***
‘If novelty were never cause, counsel on appeal would be obliged to raise and argue every conceivable constitutional claim, no matter how far fetched, in order to preserve a right for post

- conviction relief upon some future, unforeseen development in the l aw.’ ” Reed v. Ross , 468 U.S. 1, 15

- 16 (1984) (quoting Ross v.

Reed , 704 F.2d 705, 708 (4th Cir. 1983)).
¶ 43 While the State argues forfeiture, rather than invoking the cause and prejudice test, the

rationale remains the same. If the failure to raise a Miller claim in postconviction proceedings prior to Miller should be excused, it follows that the failure to raise such a claim on direct appeal must also be excused. In fact, the rationale actually applies with even greater force, as a defendant’s direct appeal would be even further removed in time from Miller than his postconviction proceedings.
¶ 44 The circuit court imposed upon defendant a discretionary sentence of natural life imprisonment for an offense committed when defendant was 14 years old. To comport wit h the eighth amendment, such a sentence must be preceded by a consideration of the characteristics of youth and a finding of permanent incorrigibility. Holman , 2017 IL 120655, ¶ 46. Per defendant’s unrebutted allegations, which we take as true at the secon d stage of postconviction proceedings, the court did not meet those requirements. Accordingly, we find that defendant has made a substantial showing that his sentence was unconstitutional, such that his amended successive petition should be advanced to the third stage of proceedings.
¶ 45 In closing, we recognize that the nature of defendant’s claim does not require substantial

fact

- finding or credibility determinations, which are largely the purpose of the third

- stage evidentiary hearing. See Pendleton , 223 Il l. 2d at 473. Resolution of defendant’s Miller claim at the third stage does not call for any witness testimony and will likely consist of nothing more- 9

- than the circuit court conducting a thorough review of the reports of proceedings to determine

if the or iginal sentencing court met the requirements of Miller

.

¶ 46 III. CONCLUSION
¶ 47 The judgment of the circuit court of Kankakee County is affirmed in part, reversed in part, and remanded for further proceedings.

¶ 48 Affirmed in part and reversed in part.
¶ 49 Cause remanded.