## 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 . Croom , 2012 IL App (4th) 100932

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. DWAYNE T. CROOM, Def endant- Appellant.

District & N o. Four th District Docke t No. 4-10-0932

Argued Filed Rehea ringdenied May

8, 2012 May 21, 2012
J une 18, 2012

Held (Note : This s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r 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

. ) On appea l from the denial of defe n dant’s motion for leave to file a

succe ssive postconviction petition, the appellate co urt held that defe ndant’s motion was prope rly denied be cause he fa iled to satisfy the

cause -and- prejudice test and that the automatic transfe r provision of the J uvenile Court Act did not violate due proce ss, even t h o ug h it allowed defe ndant, who was char g ed with first degree murder committed when he was16 year s old, to be transfe rre d to adult court without a hea ring

.

Dec ision Under Review Appea l f rom the Circuit Court of Champaign County
, No. 05-CF- 1023; the Hon. Thomas J. Difanis, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J . Pelletier, Alan D . Goldberg , and L aure n A. B auser (ar gued), all of State Appe llate Def ender ’s Off

ice, of Chicag o, for a

ppellant.

J ulia Ri etz, State’s Attorney
, of Urba na (Patrick Delfino, Robert J

. Bide rman, and Kathy Shepard (ar gue d)
, a ll o f State ’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE McCULL OU GH delivere d the judgme nt of the court, with opinion. Presiding J ustice Turner and J ustice Cook concur red in the judgme nt and opinion.

OP INION

¶ 1 In May 2005, the State char g ed defe ndant, Dway ne T. Croom, with first degree murder (720 I L CS 5/9-1(a) (2) (West 2004)), alleg ing he s truck three-year ol d Altravius Bolden in the abdomen, causing Altravius’s death in J une 2004. Def endant was 16 y ear s old on the date of the a lleg ed off

ense. ¶ 2 Prior to trial, defe ndant filed a motion to suppress oral statements he made to Detec tive Robert Rea while in a van. Def endant alleg ed the statements we re ma de during a custodial interrog ation wher e he “did not, and was not afforde d the opportuni ty to knowing ly waive his constitutional rig hts” to rema in silent, consult an attorney , have an attorney prese nt during the interrog ation, and terminate the interrog ation at any t i me, nor was he informed that any statements he made could be used ag ainst him in c ourt. Fur ther, defe ndant alleg ed “no eff ort was made *** to discover whether he was mentally or psycholog ically capa ble of making a voluntary statement.” After hearing the eviden ce an d l istening to the parties’
arguments, the trial court denied d ef en d ant’s motion to suppress, finding defe ndant’s
statements while in the van wer e voluntary and t h at d efe ndant was not in custody for purposes of Miranda . See Miranda v. Arizona , 384 U.S. 436, 444 (1966). ¶ 3 I n September 2005, defe ndant was found unfit to stand trial, based on Dr

. L aw re n ce J ecke l’s medical opin i o n “t h at althoug h [defendant] knows the function of the various participa nts in the court of law
, there is signific ant doubt as to whether he can assist his
att o rn ey in his own defe nse.” J ecke l based his opinion on the fac t that defe ndant was “d efensive and concr ete” and “stubbornly ref used t o consider that a plea agree ment m i gh t net him less prison time.” Thus, J ecke l conclude d, defe nd an t “seemed to be unable to differ entiate betwee n a decision in the criminal justice sy stem and the truth about the crime.” In Marc h 2006, defe ndant was r estored to f itness. ¶ 4 In September 2006, defe ndant’s jury trial commence d. The jury found defe ndant guilty

-2-of first degree murder. In October 2006, defe ndant filed a motion for a new trial, alleg ing in

part that the trial court err ed in denying his motion to suppress. The court denied defe ndant’s motion and sentence d him to 50 y ear s in prison. ¶ 5 On direc t appea l, defe ndant argued the trial court err ed by denying his motion to suppress statements he made to Detec tive Rea while in the van (statements that Detec tive Rea testified
to during trial), asser

ting the statements wer e made during a custodial interrog ation and wer e in ad m issible beca

use he was not informed of his Miranda rig hts. This court aff irmed defe ndant’s convictions in Fe bruar y 2008. People v. Croom
, 379 I ll. App. 3d 341, 352, 883 N.E.2d 681, 690 (2008)

. ¶ 6 In November 2008, defe ndan t fi l ed a p o s t co n v i ct ion petition challeng ing a ppellate counsel’s eff

ectivene ss for failing to raise sever al claims on dire c t a ppeal. In Dec ember 2008, the trial court summarily di s m i s s ed defe ndant’s petition, finding it frivolous and patently without merit. On appea l from the s ummary dismiss al, defe ndant argued that appellate counsel was ineffe ctive for failing to challeng e the sufficie ncy of the State’s evidenc e. This
court aff irmed the summary dismiss al of the petition. People v. Croom
, No. 4-09-0047 (F eb. 16, 2010) (unpublished orde r under Supreme Court Rule 23). ¶ 7 On October 4, 2010, defe ndant filed a motion seeking l ea v e t o fi l e a s u cc es sive postconviction petition, which the trial cour t denied on Oc tober 26, 2010. ¶ 8 This appea l followed. ¶ 9 The first issue on appea l is whether the au t o m at i c t ra n s fe r provision of the I llinois J uvenile Court Act of 1987 (Juvenile Act) (705 I L CS 405/5-130 (West 2004)) violates fede ral and state due proce ss beca use it subjects 15- and 16-year -old juveniles char g ed with

cer tain enumer ated c rimes to be automatica lly transfe rre d to adult court without a hear ing. ¶ 10 The constitutionalit y of a criminal statute may be raised at any time. In re J.W

. , 204 I ll. 2d 50, 61, 787 N.E.2d 747, 754 (2003)

. Whether a statute violates due proce ss is revie wed de nov o

. Miller v. Rosenberg
, 196 I ll. 2d 50, 57, 749 N.E.2d 946, 951 (2001). St atutes are presumed constitutional, and a party challeng ing the constitutionally bear s the burden o f establishing its invalidity

. People v. W right
, 194 I ll. 2d 1, 24, 740 N.E.2d 755, 766 (2000)

. “[T] he leg islature h as wi d e discretion to establish penalties for criminal offe nses, but this discretion is limit ed by the constitutional guara ntee that a person may not be deprive d of liberty without due proce ss of law.” W right , 194 I ll. 2d at 24, 740 N.E.2d at 766-67. ¶ 11 Be fore turning to the substance of defe ndant ’s p et i t ion, we first dispose of the State’s contention that defe ndant has forf eited his due proce ss argument by failing to provide notice of it to the Attorney Gene ral pursuant to I llinois Supreme Court Rule 19 (ef f. Sept. 1, 2006). ¶ 12 Rule 19 provides in pertinent pa rt: “(a ) Notice Required. I n an y ca u se or proce eding in which the constitutionalit y or pree mption by fede ral law of a statute, ordinanc e, administrative regulation, or other law aff ecting the public interest is raised, and to which action or procee ding the State or the political subdivision, ag ency , or office r aff ecte d is not already a party , the litigant raising the constitutional or pree mption i ssue shall serve an appropr iate notice there of on the Att orney Gene ral, State’s Attorney
, municipal counsel or ag ency counsel, as th e c a s e ma y be.” ( Emphases a dded.) I ll. S. C t. R. 19(a) (e ff. Sept. 1, 2006).

-3-“The purpose of the notice is to g ive the aff ecte d ag ency or office r the oppo rt unity to intervene in the proce eding for the purpose of defe nding the constitutionalit y of the statute, ordinanc e, or administrative regulation.” Village of Lake Villa v. Stokovich
, 211 I ll. 2d 106, 115, 810 N.E.2d 13, 20 (2004). Her e, t h e S t at e’s Attorney was clea rly g iven notice that defe ndant is challenging the constitutionalit y of the automatic transfe r provision of the J uvenile Act, as the State is a party to this proce eding

. Thus, finding that the Rule 19 notice require ments have be en met, we turn to the merits of def endant’ s due proc ess claim. ¶ 13 Def

endant argues t hat t he autom at i c t ransf er provision of t he J uvenile Act violates (1) substantive due proce ss beca use juveniles ar e tra n s fer red to adult court without any investigation to deter

mine if transfe r is appropr iate, and (2) proce dural due proce ss beca use transfe rring juveniles to adult court without a hearing bear s no rational relationship to any leg itimate gove rnment purpose . We disag ree

. ¶ 14 The a

utomatic transfe r provision of the Juvenile Act provides: “The definition of delinquent minor under Section 5-120 of this Article sha ll not apply
to any minor who at the t i m e o f an offe nse was at least 15 y ear s of ag e and who is char g ed with first degree murder ***. These char g es and all other char g es arising o u t o f the same incident shall be
prosec uted under the criminal laws of t h i s S t at e.” 705 I L CS 405/5-130(1)( a) (West 2004). ¶ 15 Def

endant acknow ledg es that the I llinois Supreme Cour t h as p re v i o u s l y fo u n d the automatic transfe r provision of the J uvenile Act to be constitutional. See People v. J.S.
, 103 I ll. 2d 395, 405-06, 469 N.E.2d 1090, 1095 (1984); People v. M.A.
, 124 I ll. 2d 135, 146-47, 529 N.E.2d 492, 497 (1988). In J.S.
, our supreme court applied the rational basi s test and held that beca

use the automatic transfe r provision applied only to 15- and 16-year -olds who committed the most serious Class X felonies, the classification was “rationally based on the
ag e of the offe nder and the threat posed by the offe n s e t o t h e victim and the community beca use of its violent nature and fre quency of commission.” J.S.
, 1 0 3 I l l

. 2d at 404, 469 N.E.2d at 1095. Howeve r, defe ndant urg es this c ourt to revisit the rationale set forth in J.S. and other simil ar c ases in light of Roper v. Simmons
, 543 U.S. 551 (2005), a nd Graham v. F l o r i d a , 560 U.S. ___, 130 S. Ct. 2011 (2010). Specifica lly
, defe ndant argues Roper and Graham stand for the proposition that, beca use none of the four penolog ical justifications that provide the rationale for adul t s entencing–r etribution, deter renc e, incapa citation, and reha bilitation–apply to juvenile off en d er s, it is no longe r rational to automatically transfe r juveniles to adult court. We disagree

. ¶ 16 This e x act issue was re cently addre ssed by

the Fir st District Appellate Court in People v. Jackson
, 2012 I L App (1st) 100398, ¶ 16, 2012 WL 398818, at *4, and People v . Salas
, 2011 I L App (1st) 091880, ¶¶ 75-80, 961 N.E.2d 831, 848-50. Both Jack son and Salas held that Roper and Graham
, which dealt with challeng es made to the sentenc ing statutes under the eighth amendment, did not a pply to the due proce ss constituti onal cha lleng e at issue in their respe ctive case s. The Roper Court held that the eighth amendment’ s crue l and unusual punishment clause forba de a sent ence of death for juveniles. Roper
, 543 U.S. at 578. The Graham Court held that the eighth amendment forba de a sentenc e of life without parole for

-4-juvenile offe nders who ha d not committed homicide. Graham , 560 U.S. at ___, 130 S. Ct

.

at 2030. No due proce ss arg uments wer e raised in either Roper or Graham

. Those case s are clea rly distinguishable beca

use they applied (1) a differ ent analy sis (2) under a differ ent test for (3) an alleg ed violation o f a differ ent constitutional provision reg arding sever e sentenc ing sanctions–not the automatic transfe r to adult court at issue here

. Acc ording ly
, we adopt the Fi rs t Di s trict’s holdi ng and conclude that “def endant’ s argument is without merit as [ J.S. ]

rema ins on solid footing with the Supreme Court’s holdings in Roper and Graham . [Thus, d]efendant’ s substantive due proce ss rig hts wer e not violated when he was automatically transfe rre d to adult court pursuant to the automatic transfe r provision of the I llinois J uvenile Court Act of 1987 ***.” Jack son , 2011 I L App (1st) 100398, ¶ 16, 2012 WL 398818, at *4. ¶ 17 Def

endant also asser

ts that the Supreme Court’s deca des’ old holding in Kent v. United States
, 383 U.S. 541 (1966), which held transf er s from juvenile to adult court violated
p ro cedur al due proce ss absent an investigation to deter mine whether transfe r wa s appropr iate, re quires a f

inding of unconstitutionalit y . We disagree

. ¶ 18 At issue in Kent was a District of Columbi a statute that provided juveniles over the ag e of 16 year s could be tried a s adults if they wer e cha rg ed with a

n offe nse that, if committed by an adult, car

ried a possible sentenc e of death or life imprisonment. Kent
, 383 U.S. at 547- 48. The statute allowed juveniles to be tried as ad u l t s fo r t h ese crimes if, afte r a “full investigation” by the juvenile court judge
, the juvenile judge waived jurisdiction. Kent
, 383 U.S. at 547-48. The court found this statute violated proce dural due proce ss beca use it g ave the “J uvenile C ourt a substantial degree of discre tion as to the fac tual considerations to be evaluated, the weight to be g iven them and the conclusion to be rea ched.” Kent
, 383 U.S. at 553. In J.S.
, our supreme court specific ally found that Kent does not apply to the automatic transfe r provision of the J uvenile Act beca u s e, unlike the statute at issue in Kent
, the automatic transfe r provision does not allow any discretion in the transfe rring of juveniles to adult court, as ev er y 15- and 16-year -old char g ed with one of the enumer ated offe nses is automatically transfe rre d and prosec uted under the criminal laws. J.S.
, 103 I ll. 2d at 405, 469 N.E.2d at 1095. As suc h, defe ndant’s ar gument lacks mer it. ¶ 19 The second issue on appea l is whether defe ndant demo n s t ra t ed ca u s e and prejudice sufficie nt to war

rant g ranting him leave to file a succe ssive postconviction petition pursuant to section 122-1(f

) of the Post-Convi ction Hea ring Act (725 I L CS 5/122-1(f) (West 2010)). In his motion, defe ndant asser ted that trial counsel was ineffe ctive for failing to file a motion for rec onsideration of the motion to suppress defe ndant’s statements to the police based upon the pretr i al d eter

mination that defe ndant was unfit to stand trial. Specifica lly
, defe ndant maintained that he was unable to raise this issue in his initial petition for the following two objective rea sons: (1) he was not in possession of the leg al documents reg arding his fitness that wer e nec essar

y to support his claim, and (2) the corr ectional f acility was on lockdown status when his initial petition was due and, thus, he was unable to seek assistance from the law cler k in amending his peti t i o n t o include the claim and in prepa ring an aff

idavit explaining why he was unable to attach supporting documen ta ti o n

. F u r th e r, defe ndant argued that “[a] fa ilure to a llow him to se cure a full and fair hearing on such leg al issue will r esult in prejudice
, and deprive [hi m] of the constitutionally guara nteed ‘due proce ss’ which he is entitled to.”

-5-¶ 20 The trial court denied defe ndant’s mot ion for leave to file a s u cc es s i v e postconviction

petition for the following rea sons: (1) defe ndant did not alleg e a denial of his constitutional rig hts, (2) he failed to identify an objective fac tor that impeded his ability to bring his claim in the initial postconviction petition, and (3) defe ndant did not point to any prejudice that so infec ted the trial that the resulting conviction violated due proce ss. Specifica lly
, the court stressed that defe ndant was prese nt when the court found him unfit and, thus, a simple affi d avit reg arding the claim by defe ndant would have suffice d to initially raise the issue. Fur ther, the court stated “[a] finding of unfitness many months afte r the statement in question was made does not diminish t he knowing[nature] and voluntariness of said state ment.” ¶ 21 The denial of a defe ndant’s motion to file a succe ssive p o s t co n v i ct i o n p et i t i o n i s

re v i ew ed de novo

. People v. Gillespie
, 407 I ll. App. 3d 113, 124, 941 N.E.2d 4 4 1
, 4 5 2 (2010). ¶ 22 The Post-Convi ction Hea ring Act (725 I L CS 5/art. 122 (West 2010)) provides a reme dy for defe ndants who have suffe red a substantial violation of their constitutional rights at trial. People v . Pendleton , 223 I ll. 2d 458, 471, 861 N.E.2d 999, 1007 (2006) . A postconviction
proce eding is a “collate ral attack on a prior conviction and sentenc e, and the scope of such
a procee ding is g ener ally limit ed t o constitutional matters that have not been, or could not have been, previously adjudicate d.” P eople v. Cummings
, 375 I ll. App. 3d 513, 518, 873 N.E.2d 996, 1001 (2007)

. ¶ 23 Def

endants may only file one postconviction petition without leave of court. 725 I L CS 5/122-1(f) (West 2010). “[A] ruling on an initial post[ ]conviction petition has res judicata eff ect with respe ct to all claims that wer e raise d o r co u l d have been raised in the initial petition.” People v . Jones , 191 I ll. 2d 194, 198, 730 N.E.2d 26, 29 (2000). “ L eaveof cour t may be g rante d only if a petitioner 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 ” (725 I L CS 5/122-1(f) (West 2010)), or wher e nece ssary to preve nt a fundame ntal miscarr iag e of justice, i.e. , a defe ndant must show actua l innocenc e, or in a death penalty case , that a defe ndant woul d not have been elig ible for the death penalty in the absenc e of the constitutional err or. People v. Pitsonbarger
, 205 I ll. 2d 444, 459, 793 N.E.2d 609, 621 (2002). ¶ 24 Citi ng the Sec o n d D is trict Appellate Court’s decision in People v. LaPointe
, 365 I ll. App. 3d 914, 924, 850 N.E.2d 893, 901 (2006), aff’d on other grounds
, 22 7 I l l

. 2 d 39, 45, 879 N.E.2d 275, 278 (2007) , defe ndant ar gues he ne ed only state t he “g ist” of a c laim of ca use and prejudice
, an d t h at an actua l demonstration of cause and prejudice need not be made until the second and third stag es of postconviction proce eding s. We disag ree

. A petition for leave to file a succ essive postconviction petition is not a postconviction petition a nd never advanc es to additional stag es of revie w. See People v. Edwards
, 2012 I L App (1st) 091651, ¶ 19, 2012 WL 555911, at *4 (“a succe ssive petition ‘is not considere d “filed” for purposes

o f s ec t ion 122-1(f

), and further proce eding s will not follow, until leave is g ranted
, a deter mination de pendent upon a def endant’ s satisfaction of the cause -and- prejudice test’ ” (quoting People v. Tidw ell
, 236 I ll. 2d 150, 161, 923 N.E.2d 728, 734 (2010)) ). Thus, a court will not grant leave to file a succe ssive postconviction pet i t i o n unless a defe ndant demonstrates cause and prejudice. S ee People v. Conick
, 232 I ll. 2d 132, 141, 902 N.E.2d

-6-637, 643 (2008).

¶ 25 To satisfy the cause -and- prejudice test, a defe ndant must show (1) g ood cause for failing to raise the c laimed er

rors in a pr ior proce eding and (2) actua l prejudice resultingfrom the claimed err ors. Pitsonbarger
, 205 I ll. 2d at 460-62, 793 N. E

. 2 d at 621-23. “A defe ndant shows ‘ca use’ by identifying an objective fa ct o r ex t er nal to the defe nse that impeded his eff orts to raise his claim in the earlier proce eding .” Edwards
, 2012 I L Ap p (1 s t ) 0 9 1651, ¶ 20, 2012 WL 555911, at *5 (citing Pitsonbarger
, 205 I ll. 2d at 460, 793 N.E.2d at 622);

see also 725 I L CS 5/122-1(f) (1) (West 2010). “ ‘ “Prejudice ” exis ts wher e the defe ndant can show that the claimed constitutional err or so infec ted his trial that the re sulting convic tion violated due proce ss.’ ” Edwards
, 2012 I L App (1st) 091651, ¶ 20, 2012 WL 555911, at *5 (quoting People v. Morgan
, 212 I ll. 2d 148, 154, 817 N.E.2d 524, 527 (2004)) ; see also 725 I L CS 5/ 122-1(f

)(2) (West 2010). ¶ 26 As “ca

use” for failing to raise this claim in his initial postconviction petition, defenda nt maintains (1) he was not in possession of the leg al documents reg arding his fitness that wer e

n ec es s ar y to support the claim and (2) the correc tional fac ility was on lockdown when his i n i t i al petition was due and, thus, he was unable to seek assistance from the law cl er k i n amendinghis pe tition to include the c laim and in prepa ringan af fidavit explaining why

he

was unable to attach supporting docum en t at i o n

. See 725 I L CS 5/122-2 (West 2010). The State responds that neither of the rea sons g iven by defe ndant is an “objec tive fac tor external
to the defe nse, which impeded [defendant’ s] ability to raise [t his] specific claim at the initial
p o s t co n viction petition” (citing Pitsonbarger
, 205 I ll. 2d at 462, 793 N.E.2d at 623). W e agree

. ¶ 27 We note that defe ndant cites sever al case s to s up p o rt the proposition that courts have

rec og nized a prisoner’s lac k of ac cess to leg al mater ials beca use of a prison lockdown can

excuse the late filing of a postconvict i o n petition. See People v. Marino
, 397 I ll. App. 3d 1030, 1034, 927 N.E.2d 75, 79 (2010) (2d Dist.); People v. Van Hee
, 305 I ll. App. 3d 333, 337, 712 N.E.2d 363, 367 (1999) (2d Dist.); People v . Mitchell , 296 I ll. App. 3d 930, 933, 696 N.E.2d 365, 367 (1998) (3d Dist.). Def endant urg es us to extend the same rea soning to this case , wher e defe ndant did not have ac cess to the “law cler k” beca use the prison was alleg ed to have been on loc kdown. We decline to do so. ¶ 28 Even if we we re t o find defe ndant has established cause–which we do not–he ca nnot demonstrate pr ejudice. ¶ 29 In his petition for leave
, defe ndant asser ted “[a] failure to allow him to secur e a full and fair hearing on such leg al issue will result i n p re j udice, and deprive [hi m] of the constitutionally guara

nteed ‘due proce ss’ which he is entitled to *** g iven the overwhelming signific ance of such leg al issue reg arding [defendant’ s] mental state at the time i n wh i ch incriminating statements wer e secur ed from him.” In his brief, defe ndant contends he “wa s arguably prejudice d by counsel’ s failure to litigate whether his mental capa city –and particula rly his in ab i l i t y t o distinguish betwee n the truth and the steps of a criminal
proce eding

–rende red his confe ssion involuntary .” T h us, defe ndant argues the omission of this claim from his initial postconviction petition prec l uded him from deter mining if counsel’s failure to litigate the matter constituted trial strategy or incompetenc e. In contra st,

-7-the State maintains, as the trial court did, “the knowing and voluntary nature of defe ndant’s

statement was not diminis hed by the findi ng of unfitness many months afte r t he st atement was made .” We agree with the State. ¶ 30 The statements at issue here wer e made in J uly 2004. Def endant was found unfit to sta nd trial in September 2005. A finding of unfitness is based on the deter mination that a defe ndant “is unable to understand the nature and purpose of the proc eeding s ag ainst him or to assist in his defe nse.” 725 I L CS 5/104-10 (West 2010). Her e, it appea rs defe ndant was found unfit
to sta nd trial based on de fenda nt’s insistence that “if

he wa s innocent, he should not take a plea” and “that the jury would do the right thing.” Specifica lly
, Dr. J ecke l opined defe ndant “stubbornly

ref used to consider

that a plea agree ment might net him less prison time” and, thus, def endant “see med unable to differ entiate betwee n a decision in the criminal justice
sy stem and the truth about the crime. ” M o re o v er , a finding of unfitness for trial does not

nece ssitate a finding that statements g iven more than one y ear ear lier wer e involuntary

. The deter mination that a defe ndant is una ble to assist in his defe nse at the time of trial does not

mean that the same defe ndant was unable to voluntarily make statements to the police prior
to a finding of unfitness to stand trial. In fa ct , af t er hearing testimony reg arding the voluntariness of defe ndant’s statements at issue here during the initial suppression hear ing, including defe ndant’s own testimony
, the trial court specific ally found the statements made
to Detec tive Rea while in the van wer e voluntarily made. This analy sis conducte d by the trial
court at the initial suppression h ea ri ng would not have chang ed, even afte r defe ndant was fo u n d u n fit to stand trial, and thus the outcome would have been the same. As s u ch
, defe ndant was not prejudice d by defe nse counsel’s failure to file a motion to rec onsider the motion to s uppress. ¶ 31 In sum, we hold that the automatic transfe r provision of the J uvenile Act does not violate due proc ess and the trial court did not err in de nying defe ndant’s petition f or leave to f

ile a

s u c c e s s iv e p o s tc o nv ic ti o n p e ti ti o n beca use defe ndant failed to satisfy the cause

- a n d

- p r e ju dic e test. ¶ 32 For the rea sons stated, we aff irm the trial court’s judgme nt. As part of our judgme nt, we

awa rd the State its $75 statutory assessment ag ainst defe ndant as c osts of this appeal.

¶ 33 Affir

med.

-8-