Opinion
1-22-0812
01-16-2024
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SERGIO BAHENA, Defendant-Appellant.
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).
Appeal from the Circuit Court of Cook County. No. 13 CR 22029 The Honorable Maria Kuriakos-Ciesel, Judge Presiding.
JUSTICE PUCINSKI delivered the judgment of the court. Justices Lavin and Coghlan concurred in the judgment.
ORDER
PUCINSKI, JUSTICE.
¶ 1 Held: The circuit court's summary dismissal of defendant's postconviction petition is affirmed where defendant's claim that his mandatory sentence of 25 years' imprisonment violated the Illinois Proportionate Penalties Clause and his claim that his trial counsel provided ineffective assistance of counsel were frivolous or patently without merit.
¶ 2 Defendant Sergio Bahena appeals the first stage dismissal of his pro se postconviction petition for relief pursuant to the Illinois Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018). On appeal, he contends that this cause must be remanded for further proceedings under the Act because the circuit court erred in summarily dismissing his petition. For the following reasons, we affirm the circuit court's decision to summarily dismiss.
¶ 3 BACKGROUND
¶ 4 Defendant was charged by information with six counts of attempt first degree murder, one count of aggravated battery, and two counts of aggravated discharge of a firearm related to the shooting of Ruben Saldivar (Saldivar). This shooting occurred on March 9, 2013, when defendant was 20 years old. Defendant elected to proceed with a bench trial before the Honorable Maria Kuriakos-Ciesel. The trial court found defendant guilty of attempt first degree murder in violation of 720 ILCS 5/8-4(a) (720 ILCS 5/9-1(a))), aggravated battery in violation of 720 ILCS 5/12-3.05(a)(1), and aggravated discharge of a firearm in violation of 720 ILCS 5/24-1.2(a)(2), with the counts of aggravated battery and aggravated discharge of a firearm merging into the count on attempt first degree murder for sentencing purposes. On January 2, 2018, a sentencing hearing was held in which the trial court subsequently sentenced defendant to six years' imprisonment for the Class X offense of attempt first degree murder and 25 years' imprisonment for personally discharging a firearm causing the victim's injuries, for a total of 31 years' imprisonment in the Illinois Department of Corrections, followed by three years of mandatory supervised release. The facts of this case were detailed in the order disposing of defendant's direct appeal. See People v. Bahena, 2020 IL App (1st) 180197-U. We therefore relate only the facts relevant to the issues in the instant appeal.
¶ 5 Pre-trial Proceedings
¶ 6 Prior to trial, defendant filed a motion to quash arrest and suppress evidence on the grounds that there was no probable cause to arrest him. After a hearing was held on that motion, in which defendant and Chicago Police Detective Terry Teahan testified, the trial court denied defendant's motion. When defendant was still represented by his original trial counsels, these counsels also filed a written motion to suppress statements, arguing, in part, that his statement was involuntary where the "detectives told the defendant that if he (the defendant) confessed to the shooting they would charge him with aggravated battery and the state('s attorney) always go along with what the detectives tell them;" and that "if he did not confess he would be charged with Attempt Murder." The clerk's half-sheet shows that counsels subsequently withdrew the motion. Because defendant did not include the transcript from that day, we do not know the exact grounds defense counsels may have expressed in doing so, or defendant expressed any agreement with that decision.
¶ 7 Subsequently, after the trial court granted the motion to withdraw by the two original counsels, a new trial counsel represented defendant. The new counsel did file a motion to suppress the victim's identification of him as the offender in the photo and physical lineups. After a hearing was held on this motion, the trial court denied defendant's motion. This counsel did not refile defendant's motion to suppress statements. Counsel continued to represent defendant at the trial and sentencing phases.
¶ 8 Trial
¶ 9 Defendant's conviction arose from the March 9, 2013, shooting of Saldivar in front of a liquor store at 4884 South Archer, Chicago, Illinois, at 10:00 p.m. Saldivar drove Jaime Cruz and another man to the liquor store. While Cruz was inside the liquor store, the shooter walked up to the front passenger side of the van and fired four or five shots at Saldivar, who was sitting in the driver's seat. Later, at the hospital, two bullet were removed from Saldivar's body, while one bullet remained near his spine. At the hospital, he described the shooter to the police as a Latino, dark skinned, between 290 and 300 pounds, six feet one or two inches tall. Defendant is five foot seven inches tall and weighed 210 pounds.
¶ 10 On March 27, 2013, approximately two and one-half weeks after the shooting, Saldivar viewed a photo array, but was unable to identify the shooter. Defendant's photo was not included in this first photo array.
¶ 11 The police obtained a security video, containing no audio, showing the area in front of the liquor store at the time of the shooting. The video shows the liquor store on the left, the sidewalk in the center, and the Saldivar's van on the right, with the front-passenger side next to the sidewalk. The video depicts the shooter walking on the sidewalk, with his back to the camera, stopping and facing the front passenger side of the van. As a result of the lighting, it is difficult to discern the gun or the shooting itself, although it is possible to discern flashes. The video then shows the van driving away and the shooter turning and running away. When the shooter turned, he was facing in the direction of the camera. From this video, Detective Teahan obtained a still photo of the shooter, which he used to create a criminal alert bulletin.
¶ 12 Chicago Police Sergeant Juan Perez recognized defendant from the bulletin, based on his prior contacts with defendant. Sergeant Perez informed Detective Teahan, who used this information to obtain a file photo of defendant. He created a second photo array with five photos, including a defendant's file photo. On November 4, 2013, Saldivar identified defendant from the second photo array as the shooter.
¶ 13 Upon defendant's arrest pursuant to an investigative alert on November 5, 2013, he was taken to Area Central Detective Division where Detective Teahan and his partner, Detective Chad Behrend, interviewed him. After defendant waived his Miranda rights, Detective Teahan told him that he wanted to speak to defendant about a shooting on Archer Avenue. Without the police providing any further details, defendant denied being in the area at the time of the shooting but said he "knew all about the shooting and he was willing to speak so [sic] me about it." He initially told them that he heard about it from his brother, Pedro Bahena, and later said that he heard about it from people he knew in his street gang. During the interview, defendant said that he thought the victim of the shooting was a member of the Saints street gang, and that the victim was seated in a conversion van outside a liquor store. Defendant told the detectives that, at the time of the shooting, he was at work for a landscaping company in West Chicago.
¶ 14 Defendant was shown a cropped still image of himself standing on a sidewalk, taken from the security video, and he was told that this photo was taken in the area at the time of the shooting. He looked at it and said, "okay, that's me, that's me in the picture, but that's just me in the area. I'm not the shooter." Defendant was also shown two other still images from the same security video showing defendant walking southbound away from Saldivar's van immediately following the shooting. These three still photos were admitted into evidence at trial. After this exchange, the interview ended.
¶ 15 At 10:00 p.m., the interview re-commenced. Detective Teahan did not recall if he spoke to defendant alone or was with another detective during this interview. He did recall that defendant waived his Miranda rights again. The detective informed defendant that he had been identified in a photo array, that they knew that he was in the area at the time of the shooting, and that he would be placed in a physical lineup. At 11:15 p.m., defendant was placed in a physical lineup during which the victim identified him as the offender. Then, at approximately 12:20 a.m. on November 6, 2013, Detective Teahan and Detective Ludwig interviewed defendant again. After defendant waived his Miranda rights, Detective Teahan informed him that he had been identified in the lineup, that he was on security camera footage, and the police knew that he was the shooter. Defendant "teared up and became emotional for a period of time." Defendant said that he was not there at the time of the shooting because he was celebrating his brother's birthday, but then went to the home of his girlfriend, Mary Kodkowski, instead of going to a strip club with his brother because she would not allow him to go. When Detective Teahan told defendant that this was inconsistent with defendant's earlier acknowledgment that he was on the security video, defendant said "he didn't know anymore how that could be, but that he was..no longer at the scene of the shooting." This was the last time that Detective Teahan spoke with defendant. Detective Teahan then interviewed defendant's brother and girlfriend. Defendant's brother told him that defendant was with him on March 8th, not March 9th, and both defendant's brother and defendant's girlfriend could not verify defendant's whereabouts on March 9th.
¶ 16 Chicago Police Detective Chad Behrend, along with Detective Galviano, interviewed defendant on November 6, 2013, at 4:55 p.m. Defendant waived his Miranda rights. Defendant was told that his two alibi witnesses could not corroborate where defendant was at the time of the shooting, he had been identified in a physical lineup, and he had identified himself in a still photo taken from a video at the time of the shooting. During this interview, defendant became "very nervous," and started "sweating" and "crying." He admitted to shooting the guy in the van and provided an oral statement inculpating himself in the offense. At the conclusion of this interview, Detective Behrend contacted the felony review unit of the Cook County State's Attorneys Office.
¶ 17 Defendant's oral statement was reduced to a typewritten statement by an assistant state's attorney, and defendant signed it. In the typed statement, defendant stated that, on the night of March 9, 2013, he was a passenger in a vehicle with three friends, whom he declined to identify, but who were all "Maniac Latin Disciples or MLD's." As they were driving, they observed Salvidar's van parked in front of the liquor store, and one of defendant's friends stated that the van belonged to a member of the Saints, who were "in a fight" with the "MLDs." The driver of defendant's vehicle stopped the vehicle; "one of the guys" told defendant that he "needed to go shoot up the Saints"; and "one of the guys" handed him a black semiautomatic handgun. Defendant exited the vehicle, walked up to the van, and observed a person in the back of the van and another in the driver's seat. While standing in the front of the front passenger door, defendant fired four to six shots into the van and at the driver. When defendant returned to his friend's vehicle, he handed the gun back to the person who had given it to him, and the driver drove away. Defendant stated that he did not know the van's driver whom he shot and that he had not observed the van or the driver prior to the night of the shooting.
¶ 18 The parties stipulated that Chicago Police Officer Raul Rosales would testify that on March 9, 2013, Jaime Cruz told him that the shooter was a "heavyset" Latino who approached the van from the passenger's side and shouted "'what's up motherf***'" before firing five or six shots into the van. Detectuve Ludwig would testify that, on March 9, 2013, he spoke with Saldivar at the hospital and that Saldivar told him that the shooter walked towards the van "holding a handgun in his left hand"; that the shooter stared at him and then fired three times; that the shooter walked up to the passenger's side door and fired two times; that Saldivar tried to drive away but the van was in neutral; that he was able to put the vehicle into drive and drive away; that, as he was driving away, he heard two more shots, and that the shooter was "a male Hispanic, 30 to 32 years old, 290 to 300 pounds, 6' 1 to 6'2 feet tall, wearing a black T-shirt, black jeans, and a goatee."
¶ 19 In his defense, defendant presented the testimony of Doctor Jeffrey Loftus as an expert in the field of eyewitness identification who testified as to the accuracy of the victim's identification of defendant. Sergio Bahena, defendant's brother, testified that defendant was righthanded.
¶ 20 The trial court found defendant guilty of attempt first degree, aggravated battery, and aggravated discharge of a firearm. Defendant's sentencing hearing was held on January 2, 2018. At the sentencing hearing, the State argued, in aggravation, that defendant's conduct caused or threatened serious harm, defendant had a history of prior delinquency or criminal activity, and the sentence was necessary to deter others from committing the same crime. Defense counsel asked the trial court to sentence defendant to the statutory minimum sentence of 31 years' imprisonment. The pre-sentence investigation report showed that he described his childhood as "good" as he was raised in a "loving and supportive home." He had a good relationship with both parents, who both worked, as well as with his siblings. There was no history of physical, sexual, or emotional abuse and none of his family had substance abuse problems, but one of his brothers had prior contact with the criminal justice system. He dropped out of high school during his sophomore year "due to heavy gang activity in the school." He was an "average student" but had special education classes from sixth to eighth grade to address difficulties with reading. He intended to obtain his general equivalency degree and attend trade school to study plumbing and general construction.
¶ 21 He had previous misdemeanor convictions for driving on a suspended license, theft, and possession of cannabis. He reported that he joined the Maniac Latin Disciples when he was 17 years old but terminated his affiliation with this gang after his first arrest in 2011. He married his wife in 2017 and had no children. He also reported no chemical or alcohol use, and no past or present psychological problems.
¶ 22 Counsel argued, in mitigation:
"He is a role model. He has a very supportive and loving mother and wife and friends. He has shown positive [sic] to his family. He has worked prior and during this offense. He has very good ambitions in life, your Honor. He is an ambitious
person[,] and he will become a very good and productive member of society when he comes out knowing that his sentence is going to be extremely long.
He had the discipline to leave the gang, the Mania[c] Latin Disciples, sometime around 2011. That shows strong character. Again, unfortunately.. .when you grow up in that neighborhood and these are the people that you grow up with, society kinds of makes them - - or your circumstance of where you are, kinds of makes them your friends. He happened to be.in the wrong car that evening when other people in the car were putting on him their issues and their problems."
¶ 23 Defendant stated that he did not have anything to say in allocution. The trial court subsequently sentenced defendant to six years' imprisonment for the Class X offense of attempt first degree murder and 25 years' imprisonment for personally discharging a firearm causing the victim's injuries, for a total of 31 years' imprisonment in the Illinois Department of Corrections, followed by three years of mandatory supervised release. The trial court noted that defendant will serve no less than 85 percent of this sentence.
¶ 24 Direct Appeal
¶ 25 On direct appeal, another division of this court rejected defendant's arguments that the trial court erred in denying his motion to quash arrest and suppress evidence, as well as his motion to suppress the second photo array and physical lineup. Bahena, 2020 IL App (1st) 180197, ¶¶ 5-17. The Illinois Supreme Court denied leave to appeal in People v. Bahena, No. 126062 (May 26, 2021). The United States Supreme Court denied certiorari in Bahena v. Illinois, No. 21-5227 (October 4, 2021).
¶ 26 Postconviction Proceedings
¶ 27 On February 7, 2022, defendant filed a pro se petition seeking relief pursuant to the Illinois Post-Conviction Hearing Act. 725 ILCS 5/122- Defendant argued, in pertinent part, that his 31-year prison sentence was unconstitutional as applied to him because it violated the Illinois proportionate penalties clause. Specifically, defendant alleged that he had a learning disability, received "special education and related services in high school," and the trial court erred in imposing the mandatory 25-year firearm enhancement without considering the evolving science on juvenile brain development when he was 20 years old at the time of the offense. Petitioner attached the following material to his petition: his own affidavit attesting to the allegations in the petition; his own Individualized Education Program (IEP) plan with Chicago public schools, an earned program sentence credits memorandum from the Illinois Department of Corrections; a transcript from the sentencing hearing; a prisoner data sheet, and various record transcripts.
¶ 28 He also argued that his trial counsel provided ineffective assistance of counsel for filing and then withdrawing a motion to suppress his statements, and his appellate counsel provided ineffective assistance for failing to raise this issue on direct appeal. Specifically, he alleged that his statements were involuntary where the police offered leniency in charging him if he confessed.
¶ 29 On May 6, 2022, the Honorable Maria Kuriakos-Ciesil summarily dismissed defendant's petition in a written order. In relevant part, the circuit court found that defendant's 31 -year sentence did not shock the moral sense of the community and was not disproportionate where defendant was a 20-year-old "legal adult, not a juvenile or youthful offender," and that he "directly participated in an attempted first-degree murder." The circuit court also determined that counsel's decision amounted to trial strategy, and defendant did not establish that he was prejudiced. Accordingly, the circuit court found that this issue was "frivolous and patently without merit" and summarily dismissed defendant's petition.
¶ 30 ANALYSIS
¶ 31 Defendant's challenge on appeal involves the summary dismissal of his pro se postconviction petition. The Post-Conviction Hearing Act (Act) provides a procedural mechanism through which a defendant may assert a substantial denial of his constitutional rights in the proceedings which resulted in his conviction. 725 ILCS 5/122-1 et seq. (West 2018). At the first stage of postconviction proceedings, the circuit court must determine whether the defendant's postconviction petition is "'frivolous or is patently without merit.'" People v. Boykins, 2017 IL 121365, ¶ 9 (quoting 725 ILCS 5/122-2.1(a)(2) (West 2014)). The circuit court may only summarily dismiss a petition as frivolous or patently without merit where the petition "has no arguable basis either in law or fact." People v. Hodges, 234 Ill.2d 1, 16 (2009). A petition has "no arguable basis either in law or in fact" where it is "based on an indisputably meritless legal theory or a fanciful factual allegation." Id. "An example of an indisputably meritless legal theory is one that is completely contradicted by the record," and "[f]anciful factual allegations include those that are fantastic or delusional." (Internal quotation marks omitted.) People v. White, 2014 IL App (1st) 130007, ¶ 18. During first stage postconviction proceedings, "the courts treat allegations of fact as true so long as those allegations are not affirmatively rebutted by the record." (Internal quotation marks omitted.) Id. We review de novo the summary dismissal of a postconviction petition. People v. Tate, 2012 IL 112214, ¶ 10. The trial court's judgment is considered, not the reasons cited, and that judgment may be affirmed on any basis supported by the record if the judgment is correct. People v. Lee, 344 Ill.App.3d 851, 853 (1st Dist. 2003).
¶ 32 I. Defendant's Sentencing Challenge
¶ 33 Defendant contends that the circuit court erred in summarily dismissing his postconviction petition where he set forth an arguable claim that his 31-year sentence was unconstitutional pursuant to the Illinois Proportionate Penalties Clause. Specifically, he alleges that part of his sentence, consisting of the mandatory 25-year mandatory firearm enhancement, was unconstitutional as applied to him because it deprived the sentencing court of the ability to consider that defendant was only 20 years old at the time of the offense, along with other mitigating factors. In turn, the State argues that the circuit court's summary dismissal of defendant's postconviction petition must be affirmed where his contention has no arguable basis in law or fact. Specifically, the State contends that defendant failed to make an arguable claim that his sentence was unconstitutional as applied to him where he did not receive a life sentence and did not explain how he was the functional equivalent of a juvenile. Alternatively, the State asked this court to hold this issue in abeyance for the Illinois Supreme Court's decision in People v. Hilliard, 2021 IL App (1st) 200112, appeal allowed, No. 128186 (May 25, 2022). On November 30, 2023, our Supreme Court issued its decision in Hilliard. Consequently, following Hilliard, we affirm the trial court's decision to summarily dismiss defendant's contention that his 25-year mandatory sentence for a firearm enhancement violated the proportionate penalties clause.
¶ 34 Defendant's sentencing challenge is based upon Miller v. Alabama, 567 U.S. 460 (2012), in which the United States Supreme Court held that the prohibition on cruel or unusual punishment in the eighth amendment of the United States Constitution (U.S. Const., amend VIII) forbids mandatory life sentences without the possibility of parole for "those under the age of 18 at the time of their crimes." Miller, 567 U.S. at 465, 479. Our supreme court has subsequently held that, where an offender is younger than 18 years old, the trial court must consider certain factors before imposing a life sentence, including: his age and evidence of his "particular immaturity"; his family and home environment; his degree of participation in the homicide and any familial or peer pressure; his incompetence; and his rehabilitative potential. People v. Savage, 2020 IL App (1st) 173135, ¶ 58 (citing People v. Holman, 2017 IL 120655, ¶ 46). Miller applies retroactively to cases on collateral review. Montgomery v. Louisiana, 577 U.S. 190, 206 (2016). After the decision in Miller, our supreme court concluded that Miller applied to de facto life sentences. People v. Reyes, 2016 IL 119271, ¶¶ 9-10. In People v. Buffer, 2019 IL 122327, the court defined a de facto life sentence for a juvenile as a sentence of more than 40 years' imprisonment. Id. ¶ 41.
¶ 35 Defendant exclusively raises this claim as a violation of Illinois' proportionate penalties clause as "Illinois courts typically consider the sentencing claims of young adults under the proportionate penalties clause rather than the eighth amendment." People v. Savage, 2020 IL App (1st) 173135, ¶ 61 (citing People v. Minniefield, 2020 IL App (1st) 170541, ¶¶ 37-38). This is because federal cases have generally drawn a line at 18 years of age and because the Illinois clause offers a broader path to the same type of relief. Savage, 2020 IL App (1st) 173135, ¶ 61.
¶ 36 The proportionate penalties clause of the Illinois Constitution states that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the defendant to useful citizenship." Ill. Const. 1970, art. I, § 11. Our supreme court has held that the "limitation on penalties" in this clause "goes beyond the framers' understanding of the eighth amendment and is not synonymous with that provision." People v. Clemons, 2012 IL 107821, ¶ 40. For a defendant to succeed in a proportionate penalty claim, he must first demonstrate that the penalty is degrading, cruel or "so wholly disproportionate to the offense that it shocks the moral sense of the community." People v. Hilliard, 2023 IL 128186, ¶ 20 (citing People v. Miller, 202 Ill.2d 328, 338 (2002) (Leon Miller)). "Punishments satisfying this standard have not been delineated because 'as our society evolves, so too do our concepts of elemental decency and fairness which shape the 'moral sense' of the community.'" Hilliard, 2023 IL 128186, ¶ 20 (quoting Leon Miller, 202 Ill.2d at 339).
¶ 37 Here, in addressing defendant's argument, we recognize that, in Hilliard, our supreme court recently rejected this same argument and affirmed the summary dismissal of the defendant's postconviction. In that case, the defendant argued that his 25-year firearm enhancement violated the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution because its mandatory nature deprived the trial court of the ability to consider that the defendant was only 18 years old at the time of the offense and had no prior criminal convictions. Id. ¶ 11.
¶ 38 As defendant does here, the defendant in Hilliard argued that young adults older than 17 are permitted to develop proportionate penalties challenges to mandatory sentencing statutes under the Act. Id. ¶¶ 23-27. The defendant relied on our supreme court decisions in People v. Thompson, 2015 IL 11815; People v. Harris, 2018 IL 121932; and People v. House, 2021 IL 125124. In those cases, our supreme court indicated that young adult offenders may establish an unconstitutional life sentence through a postconviction petition. Thompson, 2015 IL 118151, ¶ 44 (supreme court rejected the 19-year-old defendant's as-applied constitutional challenge to his mandatory life sentence because it was raised for the first time on appeal but noted that the defendant was not prohibited from raising the issue through the Post-Conviction Hearing Act); Harris, 2018 IL 121932, ¶ 40 (supreme court reversed because the "appellate court held [the] defendant's [mandatory minimum sentence of 76 years' imprisonment] violated the Illinois Constitution without a developed evidentiary record on the as-applied constitutional challenge" by an 18-year-old defendant); and House, 2021 IL 125124, ¶¶ 5-6 (same for 19-year-old defendant sentenced to a mandatory natural life term of imprisonment for murder, with additional consecutive terms for aggravated kidnapping).
¶ 39 However, our supreme court determined that "[d]efendant interprets this court's precedent too broadly." Id. ¶ 27. In doing so, it relied upon its recent decision in People v. Clark, 2023 IL 127273. Id. In Clark, the supreme court recognized that "this court has not foreclosed 'emerging adult' defendants 18 and 19 years old from raising as-applied proportionate penalties clause challenges to life sentences based on the evolving science of juvenile maturity and brain development.'" Id. (quoting Clark, 2023 IL 127273, ¶ 87). The court in Hilliard also recognized that it had limited this type of challenge "with respect to mandatory life sentences in initial postconviction petitions." (Emphasis in original.) Id. (citing Clark, 2023 IL 127273, ¶ 88). While the defendant in Hilliard was 18 years old when he committed the offense and filed an initial postconviction petition, the supreme court determined that "the mandatory 25-year firearm enhancement was not a mandatory life sentence, and even with the discretionary sentence for murder added to the enhancement, defendant's total sentence was 40 years, less than what we have defined as a defacto life sentence for juveniles under Buffer." Id. Consequently, the supreme court found that, because the defendant did not receive a mandatory life sentence, defendant's reliance upon this line of cases do not provide support for the defendant's claim. Id.
¶ 40 Likewise, as defendant also raises in the instant case, the supreme court rejected defendant's reliance upon a line of appellate court cases in which the courts followed Thompson, Harris, and House. Id. ¶ 28; See People v. Ruiz, 2020 IL App (1st) 163143; People v. Johnson, 2020 IL App (1st) 171362; People v. Minnifield, 2020 IL App (1st) 170541; People v. Bland, 2020 IL App (3d) 170705; and People v. Savage, 2020 IL App (1st) 173135. In doing so, it found that these cases "are contrary to subsequent supreme court decisions and fail to recognize that our cases were directing the possibility of as-applied proportionate penalties clause postconviction challenges to young adults who received mandatory life sentences. Id. These subsequent supreme court decisions include People v. Dorsey, 2021 IL 123010, ¶ 74 in which the court found that, in a successive postconviction petition, "Miller's announcement of a new substantive rule under the eighth amendment does not provide cause for a defendant to raise a claim under the proportionate penalties clause", and People v. Moore, 2023 IL 123461, ¶ 38, in which the supreme court found that Miller applies to neither discretionary sentences nor adults.
¶ 41 In Hilliard, our supreme court also rejected the defendant's reliance on a line of cases finding mandatory firearm enhancement unconstitutional as applied under proportionate penalties clause. Id. ¶ 35; See People v. Womack, 2020 IL App (3d) 170208, ¶ 3 (16-year-old defendant); People v. Barnes, 2018 IL App (5th) 140378, ¶ 1 (17-year-old defendant); People v. Aikens, 2016 IL App (1st) 133578, ¶ 17 (17-year-old defendant); and People v. Gipson, 2015 IL App (1st) 122451, ¶ 4 (15-year-old defendant). The court found that defendant's status as an adult distinguished him from this line of cases. Id. Likewise, here, defendant's status as an adult at the time that he committed these offenses distinguishes him from this line of case.
¶ 42 In Hilliard, the court also rejected defendant's reliance upon the more recent legislation making changes to juvenile sentencing to show that society's standards of decency have changed. Id. ¶¶ 36-39. Here, defendant was also ineligible for any of the sentencing provisions that have been subsequently enacted in light of Miller. See 730 ILCS 5/5-4.5-105(b) (West 2022) (allowing courts to have discretion to choose whether to impose the firearm enhancement on defendants who were juveniles when they committed the offense); and 730 ILCS 5/5-4.5-115 (West 2019) (allowing parole review to defendants under 21 at the time of the offense after they have served 10 years, except for first degree murder and certain sexual crimes). In Hilliard, the court found that the legislative changes "do not aid defendant's position" in that they show "that it was implementing the legislation as a policy change rather than a reflection that the previous statutory scheme was abhorrent to the community's moral sense" because the legislature made the deliberate choice not to extend these provisions to adult offenders or to provide retroactive application. Id. ¶¶ 38-39. Consequently, defendant's reliance upon these legislative changes do not support his argument.
¶ 43 Defendant also argues that he has presented an arguable factual basis to show that he was immature at the time of these events and suffering from many of the circumstances that have led courts to treat juvenile differently than adults. On appeal, he relies upon his gang membership, his "poor mental capacity" causing him to "be easily influenced and misled by the strong impressions and pressures of peers[,]" he dropped out of high school in his sophomore year showing the absence of a stable home life, he was placed in special education classes for trouble with reading, and an Individualized Education Plan showed that he had a learning disability, and he had "mental health issues" such as attention deficit disorder and illiteracy. In turn, the State argues that these allegations do not show that he was the functional equivalent of a juvenile despite his chronological age.
¶ 44 We recognize that our supreme court has held that, under the proportionate penalties clause, young adults may rely on the evolving neuroscience and societal standard underlying the rule in Miller to support an as-applied challenge to a life sentence. See People v. Thompson, 2015 IL 118151, ¶¶ 43-44 (19-year-old defendant "is not necessarily foreclosed from renewing his as-applied challenge in the circuit court" pursuant to the Act); Harris, 2018 IL 121932, ¶¶ 59-61. In House, 2021 IL 125124, ¶¶ 29-31, our supreme court once again found that a young adult may bring an as-applied challenge under the proportionate penalties clause based on a developed evidentiary record as to how the "science concerning juvenile maturity and brain development applies equally to young adults, or to petitioner specifically."
¶ 45 First, we find that defendant's argument that there is a factual basis to show that he is the functional equivalent of a juvenile is contradicted by what he argued in his postconviction petition. In his petition, defendant described himself as 20 years old when he committed the offense, "[g]rew up in a positive environment with two working parents, played both football &basketball, married and removed himself from gang activity." He also averred that he "did have run-ins with the law he doesn't have a violent record." While he acknowledged that he had received "special education classes," he also averred that "since being incarcerated has taken steps in a positive way in rehabilitation.. .has been trying to meet his goal in obtaining his G.E.D., and has been working different jobs in the institution, all the while earning program sentence credits." Moreover, he did not rely upon any mental health disorder when arguing that he was the functional equivalent of a juvenile, but relied upon this information when arguing a separate issue. Hilliard, 2023 IL 128186, ¶ 32 ("We do not consider defendant's arguments about his mental health, as we are limited to the allegations set forth in defendant's postconviction petition and he did not raise the issue of mental health.") Therefore, we reject defendant's newfound basis for seeking further consideration of his mandatory sentence where it was not presented to the trial court.
¶ 46 Furthermore, "'there is no indication [in our constitution] that the possibility of rehabilitating an offender was to be given greater weight and consideration than the seriousness of the offense in determining a proper penalty.'" (Internal quotations omitted) Hilliard, 2023 IL 128186, ¶ 40 (quoting People v. Coty, 2020 IL 123972, ¶ 24). Even if we were to consider defendant's reliance upon these factors, when they are considered in conjunction with the circumstances of this case, we find that the imposition of the mandatory 25-year firearm enhancement, which brought his total sentence to 31 years, is not even arguably "cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community." Id. ¶ 40. As the supreme court found in Hilliard, the defendant chose to fire multiple shots at the victim at close range with no demonstrated provocation in an attempt to kill him. Id.
¶ 47 Therefore, we affirm the trial court's decision to summarily dismiss defendant's contention that his 25-year mandatory sentence for a firearm enhancement violated the proportionate penalties clause.
¶ 48 II. Ineffective Assistance of Counsel Challenge
¶ 49 Defendant also argues that the circuit court erred in summarily dismissing his claim that his trial counsels were ineffective for deciding not to re-file his motion to suppress statements, which he previously filed and withdrew. He also argues that his appellate counsel provided ineffective assistance for failing to include this claim on direct appeal. Specifically, defendant alleged in his petition that his statements should be suppressed where they were involuntary because the police induced him after promising him that they would seek a lesser charge if he confessed. The State, in turn, argues that defendant forfeited his claim that his trial counsel was ineffective for failing to raise it on direct appeal, and appellate counsel strategically refused to raise this claim, there was no merit to the motion and would not have been granted, and there was no reasonable probability that the outcome of the case would have been any different if the evidence had been suppressed.
In his postconviction petition, defendant made several other allegations relating to his claim that his statements were involuntary. However, now on appeal, he solely relies upon his claim that his statements were involuntary because the police improperly induced him to confess by promising a lesser charge and therefore, a shorter term of imprisonment, if he confessed.
¶ 50 Initially, we recognize that defendant did not raise a claim of ineffective assistance of trial counsel on direct appeal. "'[A] defendant must generally raise a constitutional claim alleging ineffective assistance of counsel on direct review or risk forfeiting the claim.'" People v. James, 2023 IL App (1st) 192232, ¶ 45 (quoting People v. Veach, 2017 IL 120649, ¶ 47)). However, "[w]hen a petitioner is asserting claims that could have been raised on direct appeal, he can avoid the procedural bar of forfeiture by casting his claims as ineffective assistance of appellate counsel for failing to raise the issues on direct appeal." People v. Addison, 2023 IL 127119, ¶ 23 (citing People v. Turner, 187 Ill.2d 406, 413 (1999)). Defendant raised a claim of ineffective assistance of appellate counsel in this case. Therefore, we find that defendant has not forfeited this claim.
¶ 51 Claims of ineffective assistance of counsel are resolved under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must demonstrate that counsel's performance was deficient and that such deficient performance substantially prejudiced the defendant. Strickland, 466 U.S. at 687. To demonstrate performance deficiency, a defendant must establish that counsel's performance fell below an objective standard of reasonableness. People v. Edwards, 195 Ill.2d 142, 163 (2001). To show sufficient prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The "effectiveness of *** counsel must be assessed against an objective standard of reasonableness from the perspective of the time of the alleged error and without hindsight." People v. Reed, 2014 IL App (1st) 122610, ¶ 66. Moreover, to provide effective assistance of counsel, trial counsel is not required to raise futile motions. Id. ¶ 92. A failure to establish either prong of the Strickland test is fatal to a claim of ineffective assistance. People v. Peterson, 2017 IL 120331, ¶ 79.
¶ 52 The Strickland standard also applies to claims that appellate counsel was ineffective. People v. Caldwell, 2023 IL App (1st) 221586, ¶ 18. Therefore, a defendant raising this type of claim must show that his appellate counsel's performance was deficient and that there is a reasonable probability that the appeal would have been successful. Id. (citing People v. Papaleo, 2016 IL App (1st) 150947, ¶ 21)). "'Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong.'" Id. (quoting People v. Simms, 192 Ill.2d 348, 362 (2000)).
¶ 53 To establish prejudice resulting from defense counsel's failure to file a motion to suppress, a defendant must show a reasonable probability that (1) the unargued suppression motion is meritorious and (2) the outcome of the trial would have been different had the evidence been suppressed. People v. Henderson, 2013 IL 114040, ¶ 15. Although the failure to file a motion to suppress is generally not a basis for an ineffective assistance of counsel claim, the failure to file a motion to suppress statements may constitute ineffective assistance of counsel if there is some indication that the statements were truly involuntary. People v. Brickhouse, 2018 IL App (3d) 150807, ¶ 40 (citing People v. Martin, 236 Ill.App.3d 112, 121-22 (1st Dist. 1992)).
¶ 54 Initially, we address the State's argument that appellate counsel's decision to not raise the issue that defendant's trial counsel was ineffective, for failing to challenge the admissibility of defendant's confession in a motion to suppress statements, amounted to trial strategy. We recognize that the record in this case is unique in that it contains a letter from appellate counsel, written to defendant, explaining counsel's decision not to pursue this exact claim on direct appeal. However, as the State acknowledges, in People v. Tate, 2012 IL 112214, our supreme court held that an argument that defense counsel's decisions amounted to trial strategy are "inappropriate for the first stage" of postconviction proceedings and are more appropriate for the second stage where both parties are represented by counsel. While the instant case deals with appellate counsel's decision not to raise an issue on direct appeal, as opposed to trial counsel's decision not to pursue a given trial strategy, we find that such an argument would be better addressed at the second stage of postconviction proceedings.
¶ 55 We find, however, that defendant did not present an arguable claim of ineffective assistance where he did not present an arguable claim of prejudice for the failure to pursue a motion to suppress statements. See People v. Cherry, 2016 IL 118728, ¶ 24 ("Because a defendant must satisfy both prongs of the Strickland test to prevail, the failure to establish either preclude a finding of ineffective assistance of counsel.") Here, we find that defendant did not establish that he was arguably prejudiced because his claim of ineffective assistance of trial counsel would have been meritless on direct appeal, and he did not establish that the outcome of the trial would have been different had the evidence been suppressed.
¶ 56 Defendant's underlying claim of ineffective assistance was that his trial counsel should have sought a motion to suppress his handwritten statement because the statement was obtained due to police coercion, and therefore, involuntary. While defendant argued in his postconviction petition that his handwritten statement was obtained because of several different types of coercive actions, he now solely focuses on a police officer inducing him to confess after promising him that they would seek a lesser charge.
¶ 57 "The test of voluntariness is whether the defendant made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether the defendant's will was overcome at the time he or she confessed." (Internal quotation marks omitted.) People v. Richardson, 234 Ill.2d 233 (2009). In determining whether a statement is voluntary, "a court must consider the totality of the circumstances of the particular case; no single factor is dispositive." Id. Among the pertinent factors are "the defendant's age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the presence of Miranda warnings; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises." Id. at 253-54. "Confessions induced by promises or suggestions of leniency have been held involuntary. However, even where promises or suggestions of leniency have been made, the confession is not necessarily inadmissible." (Internal citations omitted) People v. Veal, 149 Ill.App.3d 619, 623 (3rd Dist. 1986).
¶ 58 We find that defendant did not establish the arguable merit of this claim. In making this determination, we consider that the trial court, in its factual findings at the conclusion of the bench trial, stated that it "does not find that the statement was borne of coercion; that it was the product of fear or anything other than the defendant, after a relatively brief period in custody, providing clear details as to his recollection of the events..." The trial court made that determination after it heard testimony from Detective Chad Behrend, who testified at trial that he obtained defendant's handwritten statement. Neither party recognizes that Detective Behrend denied that he engaged in the exact coercive conduct that defendant now seeks to present at a hearing. Detective Behrend was questioned by defense counsel at trial and denied that he told defendant "if he confesses to you, you can help him out[,]" and that "you'll tell the prosecutor that he confessed and that may held him in the future[]" that "he was looking at an attempt murder charge, and if he confesses to you, you'll talk to the prosecutor that he was helping you out[.]" So, while defendant did not present a motion to suppress his statement on these grounds, he presented evidence at trial in support of his claim, and the trial court already rejected this evidence, finding that defendant did not establish any coercive conduct by the police.
¶ 59 Moreover, while defendant relied upon other factors in his postconviction petition, on appeal, he solely relies on the one factor of police coercive tactics. By doing so, he concedes that his age, intelligence, background, experience, mental capacity, education, physical condition, or the circumstances of his detention affected the voluntariness of his confession. Looking at the other applicable factors, defendant was repeatedly advised of his Miranda rights, was offered food and an opportunity to use the bathroom, and during his time at the police station, cooperated with the police in their investigation. During the interviews, defendant repeatedly minimized his role and provided different accounts of what occurred on the day of the shooting. Initially, upon being shown the still photo taken at the time of the shooting, he told the police that the photo only showed that he was in the area. Then, upon being told that he had been identified in a physical lineup, he provided two different alibi witnesses for the time of the shooting and denied that he was present at the scene. Upon learning that the two witnesses did not provide an alibi for him, he made an oral statement inculpating himself in the shooting.
¶ 60 Defendant relies on two cases in which the reviewing courts upheld the trial court's decisions that the defendants' confessions were involuntary. Defendant's reliance upon People v. Ruegger, 32 Ill.App.3d 765, 769 (4th Dist. 1975) and People v. Phillips, 2018 IL App (3d) 130270, is misplaced where the courts relied upon People v. Heide, 302 Ill. 624 (1922). In Heide, the reviewing court relied upon an "absolutist approach" that compelled the conclusion that a statement is inadmissible if it is found that the police promised leniency, which is no longer the standard employed in evaluating these types of claims. See People v. Rakin, 2022 IL App (2d) 200712-U, ¶¶ 47-50 (citing People v. Murdock, 2012 IL 112362, ¶ 30) ("No single factor is dispositive" and police threats or promises may be considered one aspect of "whether there was any physical or mental abuse by the police;"). In Rakin, the court emphasized that it must consider the totality of the evidence when evaluating the voluntariness of a confession. Id. ¶ 50.
Citing as persuasive authority pursuant to Illinois Supreme Court Rule 23(e)(1) (Eff. Feb. 1, 2023) ("a nonprecedential order entered under subpart(b) of this rule on or after January 1, 2021, may be cited for persuasive purposes.").
¶ 61 Even if we were to find that defendant's handwritten statement should have been suppressed, defendant does not present an arguable basis for finding that the outcome would have been different had the evidence been suppressed. We acknowledge that the trial court relied, in part, on defendant's handwritten statement in finding defendant guilty. However, there was sufficient remaining evidence to support his guilt. The victim identified defendant as the offender during a photo array, a physical lineup, and at trial. The State also presented a still photograph taken from a security video of the shooter. During prior interviews with the police, defendant admitted that he was the person in this photograph, and provided the name of two alibi witnesses, who did not corroborate defendant's claims as to his whereabouts at the time of the shooting. Thus, defendant did not present an arguable claim of ineffective assistance where he did not present an arguable claim of prejudice for the failure to pursue a motion to suppress statements.
¶ 62 For all these reasons, we agree with the circuit court's decision to summarily dismiss defendant's claim that the mandatory 25-year sentence for the firearm enhancement violated the proportionate penalties clause, and his claims ineffective assistance of trial and appellate counsels.
¶ 63 CONCLUSION
¶ 64 For the reasons stated, we affirm the circuit court's decision to summarily dismiss defendant's postconviction petition.
¶ 65 Affirmed.