## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Cham bers , 2013 IL App (1st) 100575

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. SCOTT CHAMBERS, Defe ndant-Appe llant.

District & N o. First District, Second D ivision Docke t No. 1-10-0575

Filed Rehea ringdenied August 13, 2013

September 11, 2013

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The denial of defe ndant’s succe ssive postconviction petition based on the finding that the petition was frivolous wa s af fi rm ed, but the trial court

was direc ted on rema

nd to vacate the languag e in its order instructing the cler k of the circ uit court not to acc ept further filings from defe ndant until the sanc tion impos ed on him by the trial cour

t was paid, since the orde r conflicte d with section 22-105(a ) of the Code of Civil Procedur e, which allows a prisoner

to file an action if he is unable to pay court costs, and defe ndant could file another succe ssive petition proper ly challeng ing his mandatory

life sentenc e.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 94-CR-4431 (03); the Hon. Vince nt M. Gaughan, Judge, pr esiding

.

J udg ment Affir med and r emande d with directions.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Holly J .K. Schroetlin, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, J oan F. Fr azier, and J oseph Alexander, Assistant State’s At t o rney s, of counsel), f

or the People.

Panel PRES I DI NG J USTI CE HARRI S delivere d the judgme nt of the court, with opinion.
J ustices Quinn and Simon concur red in the judgment and opinion.

OP INION

¶ 1 T h e ci rc u i t co u rt d en ied defe ndant, Scott Chambers, leave to file a s u cc es s i v e postconviction petition, defe ndant’s third, finding the petition was frivolous. Relevant to this
appea l, the circ uit co u rt ad d ed the following languag e to its order : “[defenda nt] is here by fined $105.00 and the Clerk of the Circuit Court will be instructed not to acc ept any further filings from [defendant] until his sanction has been satisfied in full.” Def endant does not contest the circ uit court’s finding that the petition was fr i v olous, nor does he contest the imposit ion of t he $105 “fine ”; rather, he asks this court to rema nd the m atter to the circuit court and order i t to strike t he portion of t he order ins tructing the clerk of t he circuit court to not acce pt future f

ilings fr om him unti l the fee s are paid. ¶ 2 In supplemental briefing befor e this court, defe ndant, who was 17 y ear s of ag e at the time of th e o ffense, asks this court to revie w whether his mandatory life sentenc e without the possibili ty of parole should be vacated due to the Supreme Court’s rec ent decision in Miller

v. Alabama
, 567 U.S. ___, 132 S

. C t

. 2455 (2012). Def endant asser

ts that supplemental briefing befor e this court is an appropr iate way to challeng e his sentenc e arguing that a void
sentenc e is subject to cha lleng e at a ny time. ¶ 3 At issue is whether the languag e the circ uit court added prohibiting the cler k of the circ uit
court from acc epting future filings from defe ndant until his sanction is paid in full should be

vacated on rema

nd and whether supplemental briefing befor e this court is the appropr iate method for defe ndant in this case to challeng e his sentenc e based on Miller

. We h o l d that

up o n re m and, the circ uit court must vacate the following languag e from its order denyin g defe ndant leave to file a succe ssive postconviction petition: “the Clerk of the Circuit Court will be instructed not to acc ept any further filings from [ defe ndant] until his sanction has been satisfied in full.” The portions of th e c ircuit court’s order finding defe ndant’s succe ssive petition frivolous and assessing $105 in fee s ag ainst defe ndant are aff irmed as defe ndant did
not ch al l eng e these finding s on appea l. We reje ct defendant’s contention that his sentenc e is void and hold the sentenc ing issue he raised in supple mental briefing befor e this c ourt is

-2-wa i v ed beca use defe ndant did not include it in his succe ssive petition. We note that defe n d an t i s not prohibited from filing a succe ssive petition raising his sentenc ing issue based o n Mi ller provided he abides by the require ments of section 122-1(f ) of the PostConviction HearingAct (A ct) (725 IL CS 5/ 122-1(f ) (West 2010)).

¶ 4 J URI SDI CTI ON ¶ 5 On J an u ar y 2 2
, 2 0 1 0
, t h e circ uit court denied defe ndant leave to file a succ essi v e postconviction petition. Def endant timely appea led on Februar y 17, 2010. Acc ording ly
, this
court has jurisdiction pursuant t o I l l i n o i s Supreme Court Rule 651. I ll. S. Ct. R. 651 (ef f. Fe b. 6, 2013).

¶ 6 BA CKGROUND ¶ 7 All pertinent fa ct u al b ackground information conce rning defe ndant’s trial and initial
appea l is well stated in this court’s 1998 order and does not need to be restate d here

. People

v. Chambers
, No. 1-96-0501 (1998) (unpublished order under Supreme Court Rule 23). Be low, we will discuss rele vant fact s fr o m defe ndant’s sentencing hearing and hi s curr ent

succe ssive postconviction petition. ¶ 8 Def

endant was convicted by a jury of two counts of first degree murder, two c ounts of

arme d robber

y , one count of ag g ravated criminal sexual assault, and one count of ag g ravated

v eh i cu l ar hijacking

. The conduct on which defenda nt’s convictions are based occurr ed o n J anuar y 13, 1994, when defe ndant was 17 y ear s of ag e. He was sentenc ed concurre n t ly to two terms of n at ura l -l i fe imprisonm ent for murder, three 25-y ear terms for arme d robber y and ag g ravated criminal sexual assault, an d one 15-year term for his conviction for
ag g ravated criminal sexual assault. Relevant to this appea l, defe ndant’s sentenc e of natura l life imprisonment was pursuant to the mandatory sentenc ing provisions found in section 5-8- 1(a) ( 1 ) ( c ) ( ii )
, ( v ) o f th e Unified Code of Correc tions. 730 I L CS 5/5-8-1(a )(1) (c) (ii), (v) (West 1994). ¶ 9 During the sentenc ing hearing, the State informed the circ uit court of the law re g arding defe ndant’s sente nce, stating:
“He ’s 17, J udg e, so under the law in I llinois we’ re here to se ntence him a nd you’re bound to follow the law and I know this court will do so. He’ s not elig ible for the death penalty nor is he elig ible to be sentenc ed to any thing less than natura l life imprisonment. The p eo p le who we elec t as fre e, democr atic people to serve in the Gene ral Assembly decide d many y ear s ago for this ty pe of crime, for this specia l cate g ory of crime mitigation and ag grava

tion is irrele vant. We have decide d as a people that when someone commits this ty

pe of very narr ow cate g ory of crime that is so horrible we are entitled to wash our hands of [defendant] and to ba nish him from our community and to se nd him for the rest of his nat u ra l l i fe t o live in the penitentiary

. And thats the sentenc e we’ re askingyou to impose on him, J udg e.” The State added further “[t] his is a fair sentenc e” and it “is a sentenc e require d under law.” Def endant’ s counsel, during his argument, noted, “I know that the Court cannot do any thing

-3-beyond what the law require s wher e there is a double hom i cide.” Be fore sentenc ing

defe ndant to a natura l life sentenc e without parole
, the circ uit court judge noted, “I don’t take
any pleasure out of sentencing a youngman to the sentenc e of this gravity but it is the l aw and I ’m bound by

the law.” ¶ 10 Def

endant appeale d his initia l co n v i ct i on and sentence alleg ing that his conviction for
ag g ravated criminal sexual a ssault must be reve rsed beca use the State failed to prese nt any evidenc e independe nt of his own statement to establish the corpus delicti of that crime and that his counse l wa s ineffe ctive by admitting to his guilt during opening statements. This
court aff irmed his conviction and sentenc e. P eople v. Chambers
, No. 1-96-0501 (1998) (unpublished orde r under Supreme Court Rule 23). ¶ 11 In August of 1999, defe ndant filed a pro se petition for postconviction relief arg uing that his rig ht to a speedy trial was violated and that his counsel was ineffe ctive. The circ uit court summarily dismiss ed the petition pursuant to section 122-2.1 of the Act (725 I L CS 5/122-2.1 (West 2004)). De fenda

nt did not appeal the dismissal of his postconviction petition. ¶ 12 On August 25, 2000, defe ndant filed a succe ssive petition, his second petition, alleg ing

a claim based on Apprendi v. New Jerse y , 530 U.S. 466 (2000). The circ uit court dismiss ed the petition. On appea l, the appel l at e d efender assig ned to repr esent defe ndant moved to withdraw from the case on the g rounds that the petition had no merit. This court g rante d the motion to withdraw and aff irmed the decision of the circ uit court on July 3, 2003. People v. Chambers , No. 1-02-3031 ( 2003) (unpublished orde r under Supreme Court Rule 23). ¶ 13 On J uly 21, 2009, defe ndant filed a petition for relief from judgme nt pursuant to se ction 2-1401 of the I llinois Code of Civil Procedur e (Code) (735 I L CS 5/2-1401 (West 2008)). The circ uit court, on October 2, 2009, pursuant to People v. Shellstrom
, 216 I ll. 2d 45, 57 (2005), notified defe ndant i t intended to rec hara cterize the petit ion as a succe ssive p o s t co n v i ction petition, defenda

nt’s third. ¶ 14 Def

endant elec ted to amend his petition, filing his third petition on November 13, 2009. In his third petition, defe ndant alleg ed he rec eived ineffe ctive assistance of counsel from his appellate counsel on direc t appea l, and from fellow inmates who draf ted his previous two petitions. Accordingto defe ndant, both his appellate c ounsel and his fe llow inmates failed
to alleg e that his trial counsel was i n ef fec tive and failed to challeng e his sentenc e wher e section 5-8-1(a) (1)(b) of the Unified Code of C orre ctions had been held unconstitutional. 1 Acc ording to defe ndant, this was pertinent beca use section 5-8-1( a)( 1)(c )(ii), which he was sentenc ed under, “is subject to and/or completely depende nt on, and was in eff ect at the time [ he] committed the crimes he has been convicted of.” Def endant claimed “extraordin ar y circ umstances” preve nted him from submitti nghis claims earlier. ¶ 15 On J anuar

y 22, 2010, the circ uit court d en i ed d ef en d ant leave to file his successive petition, finding that defe ndant failed to demonstrate that the rule prohibiting succe ssive petitions should be relax ed. The circ uit court further found that “the fac tual asser tions relied
upon by [defendant] in the instant petition wer e availabl e t o h i m at the time of his initial

We not e tha t def

end ant was sen te nce d unde r sec ti ons 5- 8- 1(a ) ( 1 ) ( c) (i i) and (v) of the 1 Unif ie d Cod e of

Corre ct ion s, n ot sec ti on 5

- 8- 1(a )( 1)( b).

-4-petition was filed” and that defe ndant “fa iled to identify any objective fac tor which impeded

his eff orts to raise the claim in the earl i er p ro cee dings.” The circ uit court found that defendant failed to show cause by mere ly arg uing that ineffe ctive assistance of counsel

cause d him to improperly prese nt his previous petitions. Additionally
, the circ uit court found that defe ndant did n o t s h o w p rejudice beca use even if he had prese nted his claim ear lier, there was “sca

nt possibili ty” that he would have preva iled. The circ uit co urt added that defe ndant made “no showing that the absenc e of the claim now prese nted so infec ted the trial that his resulting c onviction or sentenc e violated due proce ss.” ¶ 16 At the end of i ts order denying defe ndant l eave to file a succe ssive petition
, the circ uit
court a dded the following languag e: “[defenda nt] is hereby

fined $105.00 a

nd the Clerk of the C ircuit Court will be ins tructed not to acc ept any further filings from [defendant] until his sanction has bee n satisfied in full.” De fenda nt timely appea led on Fe bruar

y 17, 2010. ¶ 17 On Fe bruar

y 9, 2012, defe ndant filed his opening brief befor e this court, arg uing only that the circ uit court exceede d its authority when it barr ed the cler k of the circ uit co u rt fr om

acc eptingany

future f ilings until his fine was paid. ¶ 18 On J une 25, 2012, the United States Supreme Court issued its dec i s i o n i n Mi l l er v. Alabama
, 567 U.S. ___, 132 S. Ct. 2455 (2012), which held t hat m andator y life sentences without parole for defenda nts under the ag e of 18 at t he ti me of their crimes is a cruel and unusual punishment, and, thus, violates the eighth amendment. Id. at ___, 132 S. Ct. at 2460. ¶ 19 On August 17, 2012, defe ndant filed his supplemental brief, rely ing on Miller
, to argue that his life sentenc e is void, and aske d that the matter be rema nded to the cir cuit court for

rese ntencing

.

¶ 20 ANALYSI S ¶ 21 De fe n d an t filed a brief addre ssing the circ uit cour t ’s d en i al o f h i s s u cc es s i v e postconviction petition in which the circ uit court prohibited the cler k of the circ uit court from

acc eptingfuture f

ilings from defe ndant until his sanction wa s satisfied and a supplemental brief a ddressinghis sentence . We will address both issues in turn below.

¶ 22 Successive Postconviction Petition ¶ 23 Be fore this court, defe ndant ar gues that the portion of the circ uit court’s orde r denying him leave to file a succe ssive postconviction petition that prohibits him from making future filings until his sanction is pa id of f is void. He does not argue that he should not have been fined nor does he contest that the filing was frivolous. Def endant asser

ts that th e circ uit court’s order prohibiting future filings until his sanction is paid conflicts with section 22- 105(a) of the Code, which states, “[n] othing in this Section prohibits an applicant from filing

an action or proce eding if the applicant is unabl e to pay the court costs.” 735 I L CS 5/22- 105(a) (West 2010). Def

endant maintains that the rele vant section of the circ uit court’s order is void and that this court should order the circ uit court to strike the offe nding languag e and
to issue a corr ecte d order

. Acc ording to defe ndant, our revie w is de novo beca use it conce rns the statutory

authority of the c ircuit court’ s order

.

-5-¶ 24 The S t at e, i n re s p o n se, argues that the circ uit court proper ly exercised its inherent

authority by instructing the cler k of the circ uit court to not acc ept any m o re fi l i n gs from defen d ant until he paid the imposed court costs. The State further argues that I llinois Supreme Court Rule 137 (I ll. S. C t. R. 137 (eff. July 1, 2013)) provides the s tatutory basis for the circ uit court’s actions. Acc ording to the S tate, we should review de fenda nt’s claim fo r an ab u s e o f discretion beca use it involves the circ uit court’s use of its discretion in sanctioningdefe ndant. ¶ 25 Initial l y , we ag ree with defe ndant reg arding the proper s tandar d of review in this case. I ssues raised addre ssing the circ uit court’s statutory authority are subject to de novo revie w. People v. Alexande r , 369 I ll. App. 3d 955, 95 7 (2 007). Fur thermore
, de novo revie w is
appropr iate whe n i n t erp re ting a statute. People v. LaPointe
, 227 I ll. 2d 39, 43 (2007). Acc ording ly , we will re view this issue de novo

. ¶ 26 Section 22-105 of the Code , titled “Fr ivolous lawsuits filed by prisoners,” provides, in rele vant par

t: “I f a prisoner confine d in an I llinois Depa rtment of Correc tions fac ility files a pleading
, motion, or other fi l i n g which purports to be a leg al document in a case seeking postconviction relief under Article 22 of the Code of Criminal Procedur e of 1963 *** and the Court makes a specific finding that the pleading
, motion, or other filing which purports to be a leg al document f

iled by the prisoner is frivolous, the prisoner is responsible for the full pay

ment of filingfee s and ac tual court c osts. On filing the action or proce eding the court shall assess and, when funds exis t, collect

as a partial pay

ment of any court costs require d by law a first time pay ment of 50% of the

aver ag e monthly balanc e of the priso n er ’s trust fund acc ount for the past 6 months. There afte r 50% of all deposits into the prisoner ’s individual acc ount *** administered by the I l l i n o i s Depa

rtment of C orre ctions shall be withheld until the actual court costs

are collecte d in full. The Depa rtment of Correc tions shall forwa rd any money s withheld
to the court ofjurisdiction. I f a prisoner is rele ased befor e the full costs are collecte d, the Depa rtment of Correc tions shall forwa rd the amount of costs collecte d throug h the date of rele ase. The court of jurisdiction is responsible for sen d ing the Depa rtment of Correc tions a copy of the order mandating the amount of court fee s to be paid. Nothing in this Section prohibits an applicant fromfiling an action or procee ding if the applicant is unable to pay the court costs .” (Empha sis added.) 735 I L CS 5/ 22-105 (West 2010). The purpose of section 22-105 of the Code i s “t o cu rb t he larg e number of frivolous collater al pleading s filed by prisoners which adver sely aff ect the eff icient administration of justice, and to compensate t he courts for the time and expense incurre d in proce ssing and disposing of the m.” People v . Conick, 232 I ll. 2d 132, 141 (2008). ¶ 27 Our para

mount considera

tion when interpre ting a statute is to g ive eff ect to the intent of the leg islature. People v. Hari
, 218 I ll. 2d 275, 292 (2006). “The best evidenc e of leg islative intent is the languag e used i n t h e s t at u te, which must be g iven its plain and ordinary meaning .” Id. “ ‘I

n deter mining the plain meaning of a statute’s terms, we consider the
statute in its entirety
, keeping in mind the subject it addre sses, and the appar ent intent of the leg islature in enac tin g t h e s t atut e.’ ” Conick
, 232 I ll. 2d at 138 (quoting Orlak v. Loyola

-6-University Health System
, 228 I ll. 2d 1, 8 (2007))

. Fur thermore
, the statutory languag e must be g iven “the fullest, rathe r than narr owest, possible meaning to which it is susceptible.” Id. ¶ 28 In this case , we hold that the section of the circ uit court’s order stating “the Clerk of the Circuit Court will b e instructed not to acc ept any further filings from [defendant] until his sanction has been satisfied in full” conflicts with the plain and ordinary languag e of section 22-105 of the Code (735 I L CS 5/22-105 (West 2010)), which provides that “[n] othing in this Section prohibits an applicant from filing an action or proce eding if the applicant is una ble to pay the cour t costs.” The c ircuit court in this case eff ectively prohibited defe ndant from making future filings based on court cos t s as s es s ed, despite the clea r languag e stating otherwise in s ec tion 22-105 of the Code. 735 I L CS 5/22-105 (West 2010). There fore
, the circ uit court erre d when it i ncluded this languag e into its order de ny ing defe ndant l eave to file his succe ssive petition. ¶ 29 We find further support for our holdi n g i n o u r s up reme court’s decision in People v

. Alcozer
, 241 I ll. 2d 248 (2011). In Alcozer
, the defe ndant challeng ed the constitutionalit y of the imposit ion of fee s pursuant to section 22-105 of the Code. Id. at 259-65 (citing 735 I L CS 5/22-105 (West 2006)). In responding to the defe ndant’s argume nt that the fee s imposed violated his due proc ess rights, our supreme c ourt held:
“F rom a p l ai n reading of section 22-105, we deter mine that the statute does not impinge upon a prisoner’ s fundame ntal rig ht to acc ess to the courts beca use fe es are assessed only afte r a leg al document is found to be frivolous. At most, the s tatute onl y aff ects a prisoner’ s rig ht to file frivolous leg al documents without being responsible for
t h e costs, but does not prohibit prisoners from exe rcising their right to petit i o n f o r postconviction relief

.” (Empha sis added.) Id. at 260. Our hold i n g i n t h i s case is consistent with the Alcozer court’s holding t hat s ection 22-105 “does not prohibit prisoners from exercising their rig ht to petition for postconviction relief .” Id. ; see also People v. Johnson
, 2012 I L App (1st) 111378, ¶ 11 (pointing out that section 22- 105 of the Code “spec ifically provides that no inmate is prohibited from filing any pleading based on the i nability to pay” (citing 735 I L CS 5/22-105(a) (West 200 8)); People v. Gale
, 376 I ll. App. 3d 344, 361 (2007). Allowing the circ uit court to prohibit defe ndant’s rig ht to file postconvict i o n relief would be contra ry to the plain languag e of section 22-105 of the Code. ¶ 30 We reje ct the State’s contention that I llinois Supreme Court Rule 137 (I ll. S. Ct. R. 137 (ef f. J uly 1, 2013)) applies in this case

. I llinois Supreme Court Rule 137 provides, in rele vant part: “The signature of an attorney or party constitutes a cer tificate by him that he has rea d the pleading
, motion or other document; that to the best of his knowledg e, information, and belief formed afte r rea sonabl e inquiry it is well grounded in fac t and is war rante d by exis ting law or a g ood-fa ith arg ument for the ex t en s i o n , modification, or reve rsal of exis ting law, and that it is not interposed for any improper purpose, such as to hara ss or to cause unnece ssary delay or needle ss incre ase in the cost of litigation. *** I f a pleading
, motion, or other document is sig ned in violation of this rule, the cour t, upon motion or
upon its own initiative, may impose upon the person who signe d it, a repr esente d party ,

-7-or both, an a ppropriate sanction ***.” I ll. S. C t. R. 137 (eff. July 1, 2013).
We disag ree with the State’s contention beca use a compar ison o f I llinois Supreme Court Rule 137 (I ll. S. Ct. R. 137 (ef f. Jul y 1, 2013)) with sec tion 22-105 of the Code (735 I L CS 5/22-105 (West 2010)) shows that section 22-105 of the Code is the more specific provision add re s s i ng frivolous filings made by prisoners, which is at issue in this case

. It is a fundame ntal rule of statutory construction that a specific provision preva ils over a g ener al provision. People v. Latona
, 184 I ll. 2d 260, 269-70 (1998); People v. Villarreal
, 152 I ll. 2d 368, 379 (1992). Rul e 137 is clea rly more ge nera l in nature , while s ection 22- 1 0 5 i s t i tled “F rivolous l aw s u i t s filed by prisoners,” and states that it applies to prisoners seeking postconviction relief

. 735 I L CS 5/ 22-105 (West 2010). ¶ 31 There fore
, in this case the circ u i t co u rt er re d b y i n cl uding languag e in its order prohibiting defe ndant from f il in g further pleading s befor e his sanction was paid in full. When

a court exceeds its statutory authority to act, the r esulting or der is void. Alexande r , 369 I ll. App. 3d at 958. Acc ording ly
, on rema nd, we direc t the circ uit court to vacate the following languag e from its order : “the Clerk of the Circuit Court will be instructed not to acc ept any further filings f rom [defenda

nt] until his sanction has be en satisfied in full.”

¶ 32 Sentence ¶ 33 In supplemental briefing befor e this court, defe ndant, who was a minor at the time of the offe nse, asks this court to revie w whether his mandatory life sentenc e without the possibili ty of parole should be vacat ed p u rs u ant to the Supreme Court’s rec ent decision in Miller v. Alab a m a , 567 U.S. ___, 132 S. Ct. 2455 (2012). Def endant asser

ts that supplemental briefing befor e this court is an appropr iate way to challeng e his sentenc e, arg uing that a void sentenc e is subject to challeng e at a ny time. ¶ 34 In response , the State argues that the statute defe ndant was sentenc ed under in this c ase cannot be considere d void ab initio beca use it is not unconstitutional in i t s en t i rety

. Fur thermore
, the State contends that Miller cannot be applied retroa ctively to collater al
proce eding s, such as a

postconviction petition, because it is a new rule of law. ¶ 35 In Miller
, the Supreme Court hel d t h at m an d atory life sentenc es without parole for defe ndants under the ag e of 18 at the time of their crimes is a crue l and unusual punishment and, thus, violates t he eighth amendment. Miller
, 567 U.S. at ___, 132 S. Ct. at 2460. The Court did not ban the sentenc ing of juveniles to life in prison without parole ; rathe r, it held the mandatory sentenc ing of juveniles to life without parole violates the eighth amendment and require d sentenc i n g co urts “to take into acc ount how children are differ ent, and how those differ ence s counsel ag ainst irrevoc ably sentenc ing them to a lifetime in prison.” Id. at ___, 132 S. Ct . at 2469. ¶ 36 In People v. W illiams
, the defe ndant appea led the denial of his succe ssive postconviction petition in which he asser ted that his mandatory life without parole sentenc e violated the eighth amendment’ s prohibition ag ainst crue l and unusual punishment. People v. W illiams
, 2012 I L App (1st) 111145, ¶ 27. Although the defe ndant did not cit e Mi ller until supplemental briefing befor e this court, he did cite the Supreme Court’s decision in Graham v. Flori da
, 560 U.S. 48 (2010), a case the Supreme Court re lied upon to make its decision

-8-in Miller

. W illiams
, 2012 I L App (1st ) 111145, ¶ 30. The defe ndant in W illiams and defe ndant in this case wer e both sentenc ed under the same statutory scheme

. Id. ¶ 47 (citing 730 I L CS 5/5-8-1(a )(1) (c) (ii) (West 1996)). In W illiams
, this court reje cted the defe ndant’s contention that his sentenc e was void ab initio and thus, can be attacke d at any time. Id. This
court reasone d that his sentence was not void ab initio beca use the statute was not fac ially unconstitutional and could be validly applied in othe r circ umstances, namely
, to a dults. Id. This court did, howeve r, hold that the defe ndant in W illi a m s s a ti sfied the cause -and- prejudice
test of section 122-1(f

) of the Act (725 I L CS 5/122-1(f) (West 2010)) such that the circuit
court erre d in deny

ing him leave to file a succe ssive petition. W illiams
, 2012 I L Ap p (1 s t) 111145, ¶ 57. Specifica lly
, under the prejudice element of the cause -and- prejudice test, this court he ld that Miller

can be retroa ctively

applied. Id. ¶ 52. ¶ 37 In this case , unlike in W illiams
, defe ndant did not include any argument conce rningthe

ma n d a to r y n a tu r e of his life without parole sentenc e in his succe ssive postconviction pet itio n

. Def endan t fi l ed the instant petition in November of 2009. Graham was decide d in 2010, while Miller

was de cided in 2012, af

ter de fenda

nt f iled his ope ning brief be fore this court. Consequently
, defe ndant’s challeng e to his s entence based on Miller is only found in the supplemental brief he fi l ed b efore this court. Unlike in W illiams
, we cannot say that defe ndant satisfied the ca u s e-a nd-pre judice test found in section 122-1(f ) of the Act (725 I L C S 5/122-1(f) (West 2010)) beca use the argument is not in defe ndant’s petition. Our
supreme court rec ently reiter ated t h e b asi c framework a defe ndant must follow to file a

succe ssive postconviction petition, stating: “Consequently
, to initiate a succe ssive postconviction proce eding
, a defe ndant must first obtain leave of court, which is g rante d only when the defe ndant ‘demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proce eding s and prejudice results from that failure

. ’ 7 25 I L CS 5/122-1(f) (West 2008). To show cause , a defenda nt must identify ‘a n o b

j ec tive fac tor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proce eding s.’ Id. To show prejudice
, a defe ndant must demonstrate ‘that the claim not raised during his or her initial post-conviction proce eding s so infec ted the trial that the resulting conviction or sentenc e violated due pr ocess.’ Id. ” People v . Evans , 2013 I L113471, ¶ 10.
We note that at no point, either befor e the circ uit court or in supplemental briefing befor e this court, has defe ndant arg

ued that his succe ssive petition sa tisfied the elements of the cause

and-pr ejudice test found in se ction 122-1(f ) of the Act (725 I L CS 5/122-1(f) (West 2010)). Acc ording ly
, in order for this court to revie w his contention that we should re m an d t he matter for new sentencing
, we would have to hold that his sentenc e wa s void ab initio

. As stated earlier, this court already held i n W illiams that the same se ntencingscheme was not void ab initio

. W

illiams , 2012 I LApp (1st) 111145, ¶ 47. We se e no rea son to depart from that holding he re. ¶ 38 The matter at bar is simil ar to this court’s rec ent decision in People v. Gray
, 2013 I LApp (1st) 112572. The defe ndant in Gray filed a motion, pursuant to section 2-1401 of the Code (735 I L CS 5/2-1401 (West 2010)) challeng ing his se ntence as void. Id. ¶ 5. The defe ndant, for the first time on appea l, added that his sentenc e was also void under Miller

. Id. ¶ 8. The Gray court held that the defe ndant’s sentenc e was not void and that it could not g rant the

-9-defe ndant the relief he reque sted beca use he filed his section 2-1401 petition outside the twoyear statutory time limi tation. Id. ¶ 12. The Graycourt off ere d the followingrea soning f or its decision: “While the State acknow ledg es the holding in Miller v. Alabama
, the State contends
t h at case does not rende r defe ndant’s sentenc e void. Indeed, a judgme nt is void, as opposed t o v o i d able, only if the court that enter ed it lacke d jurisdiction. [C itation.] J urisdictional failure can result from a court’s lack of persona l or s ubject matter jurisdiction or, rele vant to this case , the court’s lack of power to render th e particula r judgme nt. [C itation.] J urisdiction or the power to rende r a particula r judgme nt does not

nece ssarily mean that the judgme nt rende red must be one that should have been rende red; indeed, the pow er to decide carr ies with it the power to decide wrong , as well as right, and a court will not lose jurisdiction merely beca use it makes a mistake in the l aw, the fac ts, or both. [C itation.] The principle follows: that which is unconstitutional is not

nece ssarily

void. [C itation.] A statute that is unconstitutional on it s fac e–that is, wher e

no set of circumstance s exi s t s under which it would be valid–is void ab initio
, while a statute that is merely

unconstitutional as applied is not. [ Citation.]
As this court noted of late, Mil l er v. Alabama does not aff ect the validity of the
natura l life imprisonment statute as to nonminor defe ndants, so t h at statute is not unconstitutional on its fac e. [C itations.] Moreove r, Miller does not deprive or divest any state or court of the authority to sentenc e a defe ndant who was a minor at the time of his offe nse, like defe ndant, to a natura l life of imprisonment for committing homicide afte r alre ady having obtained a murder conviction. [C itation.] Thus, althoug h the mandatory imposit ion of a life sentenc e might have violated defe ndant’s constitutional rig hts, that violation did not d i v es t t h e trial court of jurisdiction over him. [C itations.] As such, defe ndant’s sentenc e is mere ly voidable if challeng ed in a timely manner

. [C itation.] ” Id. ¶¶ 10- 11. The Gray court emphasized that th e d efendant was not without rec ourse, as he could still raise his sentenc ing issue based on Miller throug h a future postconviction petition. Id. ¶ 13. ¶ 39 We find the rea soning employ ed in Gray to be persua sive in the matter prese ntly befor e

us. In this case , as in Gray
, we cannot g rant defe n d an t t h e re co u rs e he is asking for in his supplemental brief beca

use his argument is n o t fo u n d in his succe ssive postconviction petition. See 725 I L CS 5/122-3 (West 2010) (“Any claim of substantial denial of constitutional rig hts not raised in the orig inal or an amende d petition is waived.” ). Def endant has not, either in his brief befor e this court or in his succe ssive postconviction petition, made
any claims that he ha s satisfied the cause -and- prejudice test outlined in se ction 122-1(f ) of the Act (725 I L CS 5/122-1(f) (West 2010) ). Our holding in this case is c onsistent with this court’s previous holding in W illiams beca

use in both cases we re j ect the defe ndants’
cont enti ons that their sentenc es wer e void ab initio

. W illiams
, 2012 I L App (1st) 111145, ¶ 47. Unlike the defe ndant in W illiams
, howeve r, defe ndant in the case at bar has not made
any claims to satisfy the cause -and- prejudice test under the Act (725 I L CS 5/122-1(f) (West 2010)). ¶ 40 Although o u r h o l d i n g i n t h i s ca s e m ay s ee m i n efficient beca use defe ndant will

-10-presumably file a succe ssive petition, his fourth, proper ly raising his sentenc ing issue based

on Miller and addre ssing the require ments of section 122-1(f ) of the Act (725 I L CS 5/122- 1(f) (West 2010)), we stress that we do not have the supervisory authority possessed by our supreme court to o v erlook the proce dural posture of the matter befor e us and addre ss defe ndant’s sentenc ing challeng e on its merits. See People v. Jones
, 213 I ll. 2d 498, 507-08 (2004) (our supreme court stated “our appellate co u rt is not fre e, as this court is under its supervisory authority
, to excuse, in the context of postconviction proce eding s, an appellate waiver cause d by the failure of a defe ndant to include issues in his or her postc o n v iction petition”); People v . Pendleton , 223 I ll. 2d 458, 475 (2006). ¶ 41 We further note that rec ently the Second District of this court, in People v. Luciano
, 2013 I L App (2d) 110792, ¶ 46, held that a simil arly situated defe ndant could challeng e his
sentenc e in light of Miller beca use his sentenc e was void. To the extent that Luciano conflicts with our holding in this case , we respe ctfully decline to f ollow it. S ee O’Casek

v. Children’s Home & Aid Society of Illinois
, 229 I ll. 2d 421, 440 (2008) ( under the doctrine of stare decisis , “the opinion of one district, division, or panel of the a ppellate c ourt is not binding on other

districts, divisi ons, or pane ls”). 2 ¶ 42 In conclusi o n , o n re m and, we direc t the circ uit court to vacate the followinglanguag e from its order : “the Clerk of the Circuit Court will be inst ru ct ed n o t to acc ept any further filings from [defendant] until his sanction has been satisfied in full.” We re i t er ate that defe ndant has not challeng ed the circ uit court’s finding that his petition was frivolous or that the $105 assessed ag ainst him was improper. Acc ording ly
, that portion of the circ uit court’s order will be aff

irmed. Ad d i t i o nally
, we reje ct defe ndant’s contention that his sentenc e is void and we decline to revie w the sentenc ing issue he raised in supplemental briefing befor e this court. We emphasize that we are not fore closing defe ndant’s ability to challenge h is
sentenc e base d on Miller
, we are merely holding that we cannot review t he is sue based on th e p ro ce du ra l posture of the case

. Def endant, if he chooses, is fre e to file a succe ssive petition proper ly raising his claim acc ording to the para meters of section 122-1(f

) of the Act (725 I L CS 5/122-1(f) (West 2010)). See Jones
, 2 13 I ll. 2d at 508-09 (noting that proper forum for a claim not in an orig inal or amende d postconviction petition is t hrough a

succe ssive petition); Pendleton
, 223 I ll. 2d at 475. Presumably
, this will be possible now that

we have vaca

ted the conditional languag e prohibiting defe ndant from making future filings until the assessed fe e of $105 is paid in full.

¶ 43 CONCLUSI ON ¶ 44 The judgment of the c ircuit court is af firmed a nd rema nded with direc tions.

¶ 45 Affir

med and r emande d with directions.

T he Gray cou rtal so d ecl ine d t o f oll ow Luci ano

. Gray , 201 3 I L App ( 1st ) 1 1257 2, ¶ 12. 2

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