______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________ `2022 IL App (2d) 210076 No. 2-21-0076 Opinion filed June 27, 2022

IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

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

- Appellee, ) ) v. ) No. 99- CF -398 ) RICKEY L. QUEZADA , ) Honorable ) John A. Barsanti, Defendant -Appellant. ) Judge, Presiding.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Schostok concurred in the judgment and opinion. O PINION ¶ 1 Defendant, Rick e y L. Quezada, appeals from the judgment of the circuit court of Kane County dismissing his successive postconviction petition at the second stage. See 725 ILCS 5/122

- 1(f) (West 2020). He argues that his postconviction counsel provided unreasonable assistance by failing to amend his pro se petition to address potential procedural bars to his claim that his sentence violated Miller v. Alabama , 567 U.S. 460 (2012). Because the trial court discussed procedura l bars in addressing the amended petition and correctly found that our 2018 decision in this case (see People v. Quezada , 2018 IL App (2d) 170738-U ) precluded defendant’s claim, we hold that counsel was not unreasonable in failing to address potential procedural bars. W e affirm

.2022 IL App (2d) 210076
¶ 2 I. BACKGROUND ¶ 3 Defendant was convict ed , following a jury trial , of first -degree murder (720 ILCS 5/9

- 1(a)(1) (West 1998) ) and sentenced to 45 years’ imprisonment. This court affirmed on direct appeal both his convicti on and sentence. See People v. Quezada , 335 Ill. App. 3d 2 3 3 (2002). In July 2003, defendant filed his initial postconviction petition pursuant to the Post -Conviction Hearing Act (Act) (725 ILCS 5/122 -1 et seq. (West 2002) ) , the denial of which we affirmed. See People v. Quezada , No. 2-04- 0301 (2005) (unpublished order unde r Illinois Supreme Court Rule 23). On May 30, 2017, defendant moved for leave to file a successive postconviction petition (725 ILCS 5/122

- 1(f) (West 2016) ). In his proposed petition, defendant, who was a juvenile when he committed the offense, contended that his 45

- year prison sentence was a de facto life sentence that had been imposed without proper consideration of his youth and its attendant characteristics, as required by Miller

. The trial court denied the motion for leave to file a successive postconv iction petition, as defendant had not shown the required prejudice, and defendant appealed. ¶ 4 On appeal, we address ed whether defendant had shown prejudice justifying filing a successive postconviction petition . W e noted that the case law had not settled whether a discretionary sentence (such as defendant received) might constitute a de facto life sentence and, thus, trigger Miller ’s protections

. Quezada , 2018 IL App (2d) 170738-U, ¶ 22. Nonetheless, recognizing that such an is sue might “soon be forthcoming” and noting that leave to appeal had recently been granted in People v. Buffer , 2017 IL App (1st) 142931 , we considered the sentence as if it were a de facto life sentence

. Quezada , 2018 IL App (2d) 170738-U , ¶ ¶ 22-23. We then addresse d whether defendant’s “ ‘ de facto ’ life sentence” violated Miller

. Quezada , 2018 IL App (2d) 170738-U, ¶ 23. In doing so, we noted that the sentencing hearing record showed that the trial

court had considered “most of the factors” under Miller as identified in People v. Holman , 2017

- 2

-2022 IL App (2d) 210076

IL 120655, ¶ 46. See Quezada , 2018 IL App (2d) 170738-U, ¶ 24. In that regard, we pointed out that defendant’s age at the time of the offense “was the subject of repeated argument and evidence, and the court found that defendant ’ s youthfulness constituted a non

- statutory mitigating factor.” Quezada , 2018 IL App (2d) 170738-U, ¶ 24. We next observed that there was evidence concerning defendant’s close ly -knit family, including testimony from his grandfather, mother, and aunt. Quezada , 2018 IL App (2d) 170738-U, ¶ 24. Th e trial court had also made findings concerning defendant’s participation in the offense, noting that, although there had been peer pressure re lated to defendant’s gang affiliation, he had primarily undertaken the murder alone. Quezada , 2018 IL App (2d) 170738-U, ¶ 24. As for defendant’s capacity to deal with police and prosecutors, t he trial

court was aware of his prior experience with the court system, including his prior delinquency, probation, and court appearances. Quezada , 2018 IL App (2d) 170738-U , ¶ 24. We further noted that the court had heard evidence regarding defendant’s prospects for rehabilitation and had made explicit findings

. Quez ada , 2018 IL App (2d) 170738-U, ¶ 24. Lastly, we emphasized that, after consider ing all sentencing factors, “including factors attendant to youth,” the court determined that
a 45

- year sentence was appropriate. Quezada , 2018 IL App (2d) 170738-U, ¶ 24. Thus, we held that defendant failed to make a prima facie showing of prejudice sufficient to justify a successive postconviction petition because , assuming that Miller applied, the trial court “sufficiently considered the requisite factors attendant to def endant’s youth before imposing” the sentence. Quezada , 2018 IL App (2d) 170738-U, ¶ 25. ¶ 5 On July 2, 2020, defendant filed another motion for leave to file a successive postconviction petition (725 ILCS 5/22

- 1(f) (West 2020) ). In the accompanying petition, d efendant alleged , among other things, that his 45

- year discretionary prison sentence constituted

a de facto life sentence under People v. Buffer , 2019 IL 122327, thereby entitling him to a new

- 3

-2022 IL App (2d) 210076
sentencing hearing under Miller

. The trial court did not explic itly grant leave to file a successive postconviction petition ; instead , it appoint ed counsel and advanc ed the petition to the second stage. Counsel, in turn, filed an amended petition, in which he incorporated defendant’s claim that his

sentence was a de facto life sentence under Buffer and added an argument that a finding of incorrigibility was required before imposing such a sentence. Counse l also filed a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), asserting that he had (1) reviewed the pro se petition, (2) examined the record, including the transcripts of the tr ial and sentencing, and (3) consulted with defendant by mail and telephone to the extent necessary to adequately represent defendant’s contentions of error. ¶ 6 The State moved to dismiss the amended petition, contending, in part, that the Miller claim was barred by res judicata or collateral estoppel because this court had expressly rejected it in our
2018 decision

. Alternatively, the State asserted that the tr ia l court had made the f i ndings related to defendant’s youth and its attendant c haracteristics , as required by Miller

. At the hearing on its motion to dismiss, the State contended, among other things, that the petition should not have advanced to the second stage because we had already decided the Miller claim

. ¶ 7 In response to the State’s motion to dismiss, postconviction counsel argued, in part , that this court’s 2018 decision predated Buffer and other “new law about juveniles.” Counsel added that this court’s 2018 decision never reached the issue of whether, after considering the relevant factors related to defendant’s youth, the sentencing cou rt needed to find that defendant was incorrigible and incapable of rehabilitation before imposing a de facto life sentence. ¶ 8 In dismissing the petition, the trial court found that, based on this court’s 2018 decision on appeal from the dismissal of defendant’s first successive petition, defendant’s claim under Miller was barred by both res judicata and collateral estoppel, notwithstanding that Buffer was decided

- 4

-2022 IL App (2d) 210076

after our decision

. The court further found that the sentencing court had considered the relevant
age - related factors required by Miller

. Accordingly, b ecause defendant failed to make a substantial showing of a constitutional violation, the court granted the motion to dismiss. Defendant, in turn, filed this timely appeal. ¶ 9 II. ANALYSIS ¶ 10 On appeal, defendant contends that postconviction counsel failed to comply with Rule 651(c) in that he did not amend defendant’s pro se petition to address potential procedural bars to defendant’s claims. The State responds that we should affirm the dismissal because (1) defendant did not make a showing of cause and prejudice sufficient to justify a successive petition and (2) postconviction counsel substantially complied with Rule 651(c). ¶ 11 Under the Act, a defendant may collaterally attack a convictio n or sentence by asserting that it resulted from a substantial denial of his constitutional rights. 725 ILCS 5/122 -1 et seq. (West 2020); People v. Tate , 2012 IL 112214, ¶ 8. However, the Act contemplates filing only one postconviction petition, and successive petitions are disfavored. People v. Johnson , 2019 IL App (1st) 1 53204, ¶ 31. A defendant seeking to file a successive postconviction petition must first obtain leave of court. People v. Edwards , 2012 IL 111711, ¶ 24. To obtain such leave, the petition must state a colorable claim of actual innocence or establish cause and prejudice. Johnson , 2019 IL App (1st) 1 53204, ¶ 32. When a trial court grants a defendant leave to file a successive postconviction petition, the petition is effectively advanced to the second stage of the proceedings. Johnson , 2019 IL App (1st) 153204, ¶ 32. ¶ 12 At the second stage, the trial court may appoint counsel for the defendant, and counsel may amend the petition. Johnson , 2019 IL App (1st) 153204, ¶ 33. The State may file a motion to dismiss or answer the petition. Johnson , 2019 IL App (1st) 153204, ¶ 33. If the State moves to

- 5

-2022 IL App (2d) 210076
dismiss, the trial court must determine whether the petition and accompanying documents make a substantial showing of a constitutional violatio n. Johnson , 2019 IL App (1st) 153204, ¶ 33. The court must take as true all well

- pled facts that are not positively rebutted by the trial record. Johnson , 2019 IL App (1st) 153204, ¶ 33. It is the defendant’s burden to make a substantial showing of a const itutional violation. Johnson , 2019 IL App (1st) 153204, ¶ 33. If the petition and supporting documents do not make such a showing , the court dismisses the petition. Johnson , 2019 IL App (1st) 153204, ¶ 33. We review de novo the court’s dismissal of a petition at the second stage. Johnson , 2019 IL App (1st) 153204, ¶ 33. ¶ 13 The Act requires only a reasonable level of assistance by counsel during postconviction proceedings. People v. Moore , 189 Ill. 2d 521, 541 (2000). To ensure a reasonable level of assistance, Rule 651(c) requires appointed counsel to (1) consult with the defendant by mail or in person to determine the defendant’s claims of constitutional deprivation , (2) examine the record of the challenged proceedings , and (3) make any amendments to the pro se petition necessary for an adequate presentation of defendant’s claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017 ). Rule 651(c) ensures that postconviction counsel shapes a defendant’s allegations into a proper legal form a nd then presents them to the court. People v. Profit , 2012 IL App (1st) 101307, ¶ 18. Rule 651(c) does not obligate counsel to present additional issues not raised in the pro se petition. People v. Pendleton , 223 Ill. 2d 458, 475

- 76 (2006). Counsel’s s ub stantial compliance with the rule is sufficient. Profit , 2012 IL App (1st) 101307, ¶ 18. ¶ 14 When postconviction counsel files a Rule 651(c) certificate, there is a rebuttable presumption that he provided reasonable assistance of counsel. People v . Jones , 2011 IL App (1st) 092529, ¶ 23. A defendant has the burden to overcome that presumption by demonstrating that

- 6

-2022 IL App (2d) 210076
postconviction counsel failed to substantially comply with the duties required by Rule 651(c). Profit , 2012 IL App (1st) 101307, ¶ 19. ¶ 15 He re, postconviction counsel certified that he complied with Rule 651(c). That certification created a rebuttable presumption that counsel complied with Rule 651(c). However, to rebut th at presumption, defendant asserts that counsel should have amended his petition to include an allegation that his successive petition was not procedurally barred. We disagree. ¶ 16 Although postconviction counsel did not amend the pro se petition to include an argument as to why the Miller / Buffer claim was not procedurally barred, that issue was not ripe until the State raised it in its motion to dismiss. Postconviction counsel was not required to anticipate that the State would raise such a procedural bar . It was reasonable to wait to address the issue after th e State asserted it in its motion to dismiss. ¶ 17 Further, notwithstanding postconviction counsel’s failure to amend the petition to avoid any potential procedural bar, the trial court addressed whether our 2018 decision barred defendant’s Miller / Buffer claim. The court thoroughly considered that issue and ruled that the claim was barred by res judicata and collateral estoppel. Thus, the claim would have failed even if postconviction counsel attempted to avoid the procedural bar via the amended petition. ¶ 18 Moreover , we agree with the trial court’s ruling that defendant’s Miller / Buffer claim was procedurally barred by our 2018 decision. The preclusion doctrines of res judicata , collateral estoppel, and law of the case prevent a defendant from taking t wo bites out of the same appellate apple. People v. Tenner , 206 Ill. 2d 381, 39 5 (2002). Specifically, the law -of-the- case doctrine bars relitigating an issue already decided in the same case. Tenner , 206 Ill. 2d at 395. Collateral estoppel bars relitigating an issue already decided in a prior case. Tenner , 206 Ill. 2d at 396. Collateral estoppel has three requirements: (1) a court rendered a final judgment in the prior case,

- 7

-2022 IL App (2d) 210076

(2) the party against whom estoppel is asserted was a party or privy in the prior case , and (3) the issue decided in the prior case is identical with the one presented in the instant case. Tenner , 206
Ill . 2d at 396. ¶ 19 Here, in the appeal from the dismissal of defendant’s second postconviction petition, we considered his 45- year prison sentence as if it w ere a de facto life sentence and applied the Miller factors as recognized in Holman

. See Quezada , 2018 IL App (2d) 170738-U , ¶ ¶ 23-24. In doing so, we held that the re was adequate evidence at the sentencing regarding defendant’s youth and its attendant c haracteristics and that the trial court sufficiently considered that evidence , thereby satisfying the Miller test

. Quezada , 2018 IL App (2d) 170738-U, ¶¶ 24-25. Accordingly, we have already decided that defendant’s prison sentence did not violate Miller and its progeny. Thus, that claim is procedurally barred

. 1 ¶ 20 We recognize that Buffer was decided after our 2018 decision in this case. However, the significance of Buffer was its holding that a prison sentence of more than 40 years for a juvenile constitutes a de facto life sentence. Buffer , 2019 IL 122327, ¶ 42. Beyond that, Buffer added nothing to the law related to Miller

. The only potential benefit to defendant here is that Buffer

ext ended the holding of Miller to his sentence. However, as discussed, our 2018 decision assessed defendant’s sentence as though it w ere a de facto life sentence and applied the Miller factors accordingly. Thus, Buffer does not a lter our prior decision. 2

1 Even if defendant’s claim w ere not procedurally barred , we would hold that, for the reasons stated in our prior decision, he did not make a substantial showing that his sentence violated Miller

.
2 To the extent that defendant’s claim is based on the failure of the sentencing court to

- 8

-2022 IL App (2d) 210076
¶ 21 Alt hough defendant relies on People v. Turner , 187 Ill. 2d 406 (1999), that case is distinguishable. In Turner , postconviction counsel failed to allege in an amended petition to avoid dismissal based on waiver that trial counsel was ineffective for not rais ing th e c laims at trial.
Turner , 187 Ill. 2d at 413. Because counsel (1) failed to make that “routine amendment,” (2) omi tted essential elements of the defendant’s claims , and (3) inclu ded virtually no evidentiary support, the supreme court held that counsel provided unreasonable assistance. Turner , 187 Ill. 2d

at 414. Here, unlike in Turner , the only way that defendant claims postconviction counsel provided unreasonable assistance was in failing to address procedural bar s in the amended petition. However, as discussed, the trial court addressed the issue of procedural bars and c orrectly determined that defendant’s Miller / Buffer claim was barred by our 2018 decision. Thus, Turner does not support defendant’s position. ¶ 22 Becau se we affirm on the foregoing basis, we need not reach the State’s alternative contention that the trial court should have dismissed the successive petition based on defendant’s failure to establish cause and prejudice. ¶ 23 III. CONCLUSION ¶ 24 For the reasons sta ted, we affirm the judgment of the circuit court of Kane County. ¶ 25 Affirmed

.

specifi cally find that he was incorrigible before imposing a de facto life sentence, that claim lacks merit. See Jones v. Mississippi , 593 U.S. ___, ___, 141 S. Ct. 1307, 1318- 19 (2021) ; People v. Dorsey , 2021 IL 123010, ¶ 40 (discussing effect of Jones ).

- 9

-2022 IL App (2d) 210076

2022 IL App (2d) 210076

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 99

- CF

- 398; the Hon. John A. Barsanti, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Ann Fick, of State for Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick Delfino, for Edward R. Psenicka, and Victoria E. Jozef, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

- 10

-