2020 IL App (2d) 180040-U No. 2-18-0040 Order filed December 15, 2020 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
SECOND DISTRICT

______________________________________________________________________________ T HE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff

- Appellee, ) ) v. ) No. 09- CF -2570 ) TIMOTHY HOUSE , ) Honorable ) Jeffrey S. MacKay , Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE HUTCHINSON delivered the judgment of the court. Justices Jorgensen and Schostok concurred in the judgment. ORDER ¶ 1 Held : Defendant failed to state the gist of a claim in his postconviction petition that his counsel was ineffective for failing to consider caselaw that had not yet been decided when advising him about the potential sentence that he faced if convicted. ¶ 2 Defendant, Timothy House, appeals from the summary dismissal of his pro se postconviction petition in the circuit court of Du Page County. He contends that he stated the gist of a claim of ineffective assistance of trial counsel, because, before he entere d his guilty plea, counsel failed to advise him regarding court decisions prohibiting de facto life sentences for2020 IL App (2d) 180040-U

- 2 - juvenile offenders. For the reasons that follow, we affirm the trial court’s dismissal of defendant’s petition. ¶ 3 I. BACKGROUND ¶ 4 Defendant was charged with three counts of aggravated criminal sexual assault (720 ILCS 5/12- 14(a)(2) (West 2008)), three counts of criminal sexual assault (720 ILCS 5/12

- 13(a)(1) (West 2008)), and one count of aggravated domestic battery (720 ILCS 5/12

- 3.3(a) (West 2008)), one count of unlawful restraint (720 ILCS 5/10

- 3(a) (West 2008)), and one count of attempted escape (720 ILCS 5/8

- 4(a), 31

- 6(c) (West 2008)). Defendant entered a fully negotiated guilty plea to one
count of aggravated criminal sexual assault and one count of aggravated domestic battery. As part of the plea agreement, the State moved to dismiss the remaining counts. Defendant agreed to a
12- year prison sentence on the aggravated

- criminal

- sexual

- assault c onviction and a consecutive 7
year - prison sentence on the aggravated -domestic- battery conviction. The trial court accepted the guilty plea and sentenced defendant accordingly. Defendant did not move to withdraw his guilty plea nor file a direct appeal. ¶ 5 D efendant entered a fully negotiated guilty plea to one count of aggravated criminal sexual assault and one count of aggravated domestic battery. As part of the plea agreement, the State moved to dismiss the remaining counts. Defendant agreed to a 12

- year p rison sentence on the aggravated- criminal

- sexual

- assault conviction and a consecutive 7- year prison sentence on the aggravated-domestic- battery conviction. The trial court accepted the guilty plea and sentenced defendant accordingly. Defendant did not move to withdraw his guilty plea or file a direct appeal. ¶ 6 On October 10, 2017, defendant filed his pro se postconviction petition. He alleged several claims, including, that his sentence failed to take into consideration section 5 -4.5- 105 of the Uniform Code of Corrections (Code) (730 ILCS 5/5 -4.5- 105 (West 2016)) and “numerous past2020 IL App (2d) 180040-U

- 3 - rulings in both Illinois and the Federal courts dealing with juveniles as concerns life or de facto life sentences,” and that his trial counsel was ineffective in the advice he gav e regarding the potential sentence defendant faced, because counsel failed to “research applicable statutes and laws governing juvenile sentencing” and failed to “research the ever- changing and applicable case

- law doctrine germane to juvenile sentencing.” The trial court summarily dismissed the entire petition. Defendant then filed this timely appeal. ¶ 7 II. ANALYSIS ¶ 8 On appeal, defendant contends that he stated the gist of a claim that his trial counsel was ineffective in advising him about the potential se ntence he faced, because counsel did not take into account juvenile jurisprudence prohibiting de facto life sentences for juveniles. The State responds that (1) defendant forfeited this issue, because he never alleged it in his petition, and (2) even if h e did, counsel was not ineffective, because the cases that defendant relies on were decided after he pled guilty. ¶ 9 We first address the State’s argument that defendant did not include in his petition the claim he now asserts on appeal. Our supreme court ha s held that, generally, a claim not raised in a petition cannot be argued for the first time on appeal. People v. Jones , 213 Ill. 2d 498, 505 (2004) (citing 725 ILCS 5/122

- 3 (West 2000)). However, the waiver language in section 122

- 3 of the
Post

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

- 3 (West 2000)) has never been viewed as an ironclad bar. Jones , 213 Ill. 2d at 505. Indeed, the supreme court recognized that otherwise waivable claims have been addressed on appeal when fundamental fairness so required or when judicial economy was served by deciding a newly

- raised issue that was fully briefed on appeal.
Jones , 213 Ill. 2d at 505-06.2020 IL App (2d) 180040-U

- 4 - ¶ 10 Here, defendant alleged in his petition that trial counsel was ineffective for failing to research applicable statutes and laws governing juvenile proceedings. In doing so, he cited to People v. Smith , 2016 IL 119659, and section 5 -4.5-10 5 of the Code (730 ILCS 5/5 -4.5- 105 (West 2018)). Neither Smith nor section 5 -4.5- 105 have anything to do with the issue defendant now raises. Smith addressed whether a defendant must be 21 years old when he is convicted, as opposed to when he committed the offense or was charged, to trigger the enhancement provisions of section 5-4.5- 95(b) of the Code (730 ILCS 5/5 -4.5- 95(b) (West 2016)). Smith , 2016 IL 119659, ¶ ¶ 28

- 31. Smith did not address the issue of a de facto life sentence for a juvenile. Nor does section 5

- 4.5- 105, which requires a court to consider, among other factors, a defendant’s age when imposing sentence on a defendant under the age of 18. 730 ILCS 5/5 -4.5- 105(a)(1) (West 2018). Clearly, the references in the petition to Smith and sec tion 5 -4.5- 105 did not suggest that defendant was claiming, as he now does on appeal, that counsel was ineffective for failing to research case law prohibiting de facto life sentences for juveniles. ¶ 11 Defendant also alleged in his petition that counsel was i neffective for failing to research the ever

- changing and applicable caselaw related to juvenile sentencing. That allegation, however, was contained under a heading entitled “applicable statute governing sentencing”, which also contained language that expr essly referred to defendant’s claim concerning section 5 -4.5-105. However, immediately after the reference to section 5 -4.5- 105, defendant added the allegation that his counsel was ineffective for failing to research caselaw related to juvenile sentencing . Although that allegation, standing alone, did not raise the claim that defendant now seeks to raise on appeal, when it is considered, along with defendant’s allegation that there were numerous cases addressing the imposition of de facto life sentences o n juveniles, we read it as presenting a claim that counsel was ineffective for failing to research and advise defendant about such cases. Our conclusion is2020 IL App (2d) 180040-U

- 5 - bolstered by defendant’s citation in his petition to Miller v. Alabama , 567 U.S. 460 (2012), a cas e that held that mandatory imposition of life without parole for a juvenile convicted of capital felony murder violated the eighth amendment. Although not artfully presented, defendant’s petition raised a claim that his counsel was ineffective when, in ad vising defendant regarding his guilty plea, he failed to take into account juvenile jurisprudence prohibiting de facto life sentences for juveniles who commit non

- homicide offense. Thus, we will address the merits of defendant’s appellate contention. ¶ 12 In contending that his trial counsel was ineffective, defendant concedes that the Illinois cases that now prohibit what he claims was a de facto life sentence (see, e.g., People v. Buffer , 2019 IL 122327 (holding that prison sentence for a juvenile of greater than 40 years is a de facto life sentence for purposes of Miller )); People v. Holman , 2017 IL 120655 (holding that Miller and its progeny sent an unequivocal message that life sentences, whether mandatory or discretionary, for juveniles violate the eight a mendment absent consideration of youth and its attendant characteristics); People v. Reyes , 2016 IL 119271 (holding that mandatory de facto life sentence for juveniles violates the eighth amendment)) were not yet decided when he pled guilty. Nonetheless, he maintains that counsel should have been aware of Graham v. Florida , 560 U.S. 48 (2010), a case decided before he pled guilty and that he ld that the imposition of a mandatory life sentence for a juvenile convicted of a non

- homicide offense violated the eight amendment.
See Graham , 560 U.S. at 82. He then argues that, had counsel been aware of Graham , he should have anticipated the subsequent developments in caselaw that eventually resulted in our supreme court in Buffer holding that any juvenile sentence exceeding 40 years in prison is a de facto life sentence. Thus, he asserts, counsel, in advising him about what his potential sentence could be, was ineffective for advising him that could be sentenced to 90 years in prison. We disagree.2020 IL App (2d) 180040-U

- 6 - ¶ 13 At the first stage of a postconviction proceeding, the trial court examines the petition independently, without input from the parties. People v. Brown , 236 Ill. 2d 175, 184 (2010). A petitioner need present only a limited amount of detail and is not required to include legal argument or citation to legal authority. Brown , 236 Ill. 2d at 184. The allegations of the petition, taken as true and liberally construed, need only present the gist of a constitutional claim. Brown , 236 Ill. 2d at 184. That standard is a low threshold, requiring only that the petitioner plead sufficient facts to assert an arguably constitutional claim. Brown , 236 Ill. 2d at 184. ¶ 14 The trial court must summarily dismiss the petition if it is frivolous or patently without merit. Brown , 236 Ill. 2d at 184. A pro se petition is frivolous or patently without merit only if it has no arguable basis in law or fact. Brown , 236 Ill. 2d at 184-85. A petition lacking an arguable basis in law or fact is one that is based on an indisputably meritless legal theory or a fanciful factual allegation. Brown , 236 Ill. 2d at 185. We review de novo the summary dismissal of a postconviction petition. Brown , 236 Ill. 2d at 184. ¶ 15 A claim of ineffective assistance of trial counsel is assessed under the test established in Strickland v. Washington , 466 U.S. 668 (1984). Brown , 236 Ill. 2d at 185. The petitioner must show that counsel’s performance wa s deficient and that prejudice resulted from the deficient performance. Brown , 236 Ill. 2d at 185. A petition alleging ineffective assistance may not be summarily dismissed if (1) counsel’s performance arguably fell below an objective standard of

reasona bleness and (2) the petitioner was arguably prejudiced as a result. Brown , 236 Ill. 2d at 185. ¶ 16 Here, defendant did not allege the gist of a claim that trial counsel’s performance was arguably deficient. Although Graham had been decided before defendant pled guilty, Graham2020 IL App (2d) 180040-U

- 7 - merely held that mandatory life sentences for juveniles who committed non

- homicide offenses violated the eight amendment. The holding in Graham clearly did apply to defendant’s case. ¶ 17 More importantly, trial counsel could not have been expected to anticipate, merely from an understanding of Graham , the coming sea change of jurisprudence related to life sentencing for juveniles. Indeed, it was nearly 10 years after Graham that our supreme court decided Buffer . In between Graham and Buffer , there were several decisions that incrementally led to the Buffer decision. See Miller v. Alabama , 567 U.S. 460 (2012); Reyes , 2016 IL 119271; Holman , 2017 IL 120655. Moreover , those decisions all came after defenda nt pled guilty. ¶ 18 Additionally, merely because Miller relied, in part, on Graham , (see Miller , 567 U.S. at 469-475) does not show that counsel should have anticipated the Miller decision. Even if he had, it would not have altered the advice he gave to defendant, as Miller addressed the imposition on a juvenile of a mandatory life sentence without parole. Miller , 567 U.S. at 489. Defendant did not face a mandatory life sentence without parole, and thus, Miller did not apply to his sentence. ¶ 19 Because the case law that defendant now relies on had not yet been decided when he pled guilty, his trial counsel was simply not deficient for having advised him that he faced a sentence of 90 years in prison. Thus, it is unnecessary to decide whether defendant suffered any prejudice because of counsel’s advice. ¶ 20 III. CONCLUSION ¶ 21 For the reasons stated, we affirm the judgment of the circuit court of Du Page County. ¶ 22 Affirmed

.