Opinion
Appeal No. 3-13-0661
04-12-2016
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRED KOGER, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, Circuit No. 95-CF-696 Honorable Clark Erickson, Judges, Presiding. JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Lytton and McDade concurred in the judgment.
ORDER
¶ 1 Held: Defendant's petition to vacate his sentencing order was barred by principles of re judicata and was not available as a means to raise an as-applied constitutional challenge to the propriety of his mandatory natural life sentence. ¶ 2 The defendant, Fred Koger, appeals from the dismissal of his petition seeking relief from a judgment imposing a mandatory natural life sentence without the possibility of parole following his conviction for two murders in 1995. The petition was filed pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). The circuit court of Kankakee County dismissed the petition on timeliness and res judicata principles. On appeal, the defendant maintains that the trial court erred dismissing his petition on res judicata principles, maintaining that this sentence was imposed by an order void ab initio. The defendant raises the additional argument on appeal that his sentence was unconstitutional as applied in his case and constituted cruel and unusual punishment under the holding in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2344 (2012).
The State concedes that the trial court erred in sua sponte dismissing the petition for lack of timeliness. People v. Harvey, 196 Ill. 2d 444, 447 (2001).
¶ 3 BACKGROUND
¶ 4 The underlying details of the defendant's conviction and sentences have been previously detailed in the decision of this court on his direct appeal. People v. Koger, 287 Ill. App. 3d 764 (1997). The facts relevant to the instant appeal are that the defendant was 19 years of age at the time of the offenses and that he was sentenced to a statutorily imposed mandatory natural life sentence. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1994) (natural life sentence for a defendant "found guilty of murdering more than one victim")). On direct appeal, the defendant maintained, inter alia, that his mandatory life sentence was unconstitutional because it precluded consideration of his rehabilitative potential. This court disagreed and affirmed the sentence. Id. at 767. Subsequently, the defendant filed petition in 1999 under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998), and two petitions under section 2-1401 of the Code, one in 2010 and another in 2012. None of these prior post-judgment proceedings raised the issue of his mandatory natural life sentence. ¶ 5 On August 27, 2012, the defendant filed the petition at issue in the instant appeal. He appeals the trial court's dismissal of the petition on res judicata principles arguing that his sentence was void ab initio and thus not subject to the res judicata bar. People v. Kidd, 398 Ill. 405, 410 (1947) (finding that a void judgment is not subject bar under res judicata). In addition, the defendant maintains that his Miller claim is not subject to res judicata. People v. Davis, 2014 IL 11559, ¶ ¶ 34-39; People v. Morfin, 2012 IL App (1st) 1035683 ¶ ¶ 24, 48-54 (holding that Miller claim raised by juvenile offenders are not barred by res judicata). He further argues that his sentence is unconstitutional as applied to him where he was not permitted to present individualized sentencing mitigation factors including his youthful age, the fact that he was found guilty for the two murders under an accountability theory, as well as other mitigating personal characteristics. He further maintains that Miller supports his as-applied constitutional challenge. ¶ 6 During the pendency of this appeal, the court was apprised that our supreme court was considering the question of applicability of Miller in a case nearly identical to the matter at bar. People v. Thompson, 2015 IL 118151. We held this matter in abeyance pending the Thompson decision, which we now find to be dispositive on all issues raised herein.
¶ 7 ANALYSIS
¶ 8 In Thompson, the defendant was convicted of two counts of first degree murder, committed when he was 19 years old, and was sentenced to a mandatory natural life sentence. Id. at ¶ ¶ 6-7. Following the dismissal of his section 2-1401 petition, Thompson argued on appeal that, under Miller the statutorily mandated natural life sentence was unconstitutional as applied to him. Id. at ¶ 18. Thompson recognized that Miller expressly applied to minors under 18 years of age, and thus did not specifically applied to his case; however, he argued that the policy concerns articulated in Miller regarding mandatory life sentences for youthful offenders applied with equal force to a 19-year-old defendant. Id. at ¶ 21. As in the instant matter, Thompson pointed out the evolving science on juvenile maturity and brain development that formed the policy basis of the Miller decision to ban mandatory natural life sentences for minors. Id. at ¶ 37. Additionally, Thompson argued that because his as-applied constitutional challenge constituted a challenge to a void judgment, he could raise it at any time. Id. at ¶ 30. ¶ 9 Thus, the issue addressed by our supreme court in Thompson was whether a 19-year-old defendant sentenced to mandatory natural life can raise an as-applied constitutional challenge to his sentence based upon the holding in Miller in a section 2-1401 proceeding. Id. at ¶ ¶ 43-44. This is the very issue raised by the defendant herein. In Thompson, our supreme court held that: (1) Miller does not provide any basis to support a challenge to a sentence raised by a 19-year-old defendant; and (2) an as-applied constitutional challenge based upon the age of the defendant is not exempt from the typical procedural bars of section 2-1401, i.e., forfeiture or res judicata. Id. at ¶ 43 and ¶ 34. Thus our decision in the instant matter is directly controlled by the holdings in Thompson and we must reject the defendant's arguments and affirm the trial court's ruling on his section 2-1401 petition.
The court in Thompson noted that, although a defendant could not raise an as-applied constitutional challenge to his sentence under Miller for the first time on appeal from a section 2-1401 petition, he was not necessarily foreclosed from renewing his as-applied challenge in a successive petition under the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2012). The court, of course, expressed no opinion on the merits of any future claims that might be raised in a new proceeding. Id. at ¶ 44. --------
¶ 10 CONCLUSION
¶ 11 Following the controlling precedent in Thompson, the judgment of the circuit court of Kankakee County is affirmed. 5 ¶ 12 Affirmed.