People v. Clark

2021 IL App (3d) 180610

                                  Opinion filed May 11, 2021
      ____________________________________________________________________________

                                                    IN THE

                                     APPELLATE COURT OF ILLINOIS

                                              THIRD DISTRICT

                                                      2021

      THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
      ILLINOIS,                                         )       of the 9th Judicial Circuit,
                                                        )       Knox County, Illinois,
              Plaintiff-Appellee,                       )
                                                        )       Appeal No. 3-18-0610
              v.                                        )       Circuit No. 93-CF-39
                                                        )
      ROBERT M. CLARK,                                  )       Honorable
                                                        )       Scott Shipplett,
              Defendant-Appellant.                      )       Judge, Presiding.
      ____________________________________________________________________________

            JUSTICE DAUGHERITY delivered the judgment of the court, with opinion.
            Justice Lytton concurred in the judgment and opinion.
            Presiding Justice McDade dissented, with opinion.
      ____________________________________________________________________________

                                                 OPINION

¶1          Defendant, Robert M. Clark, appeals the Knox County circuit court’s denial of his motion

     for leave to file a successive postconviction petition. Defendant argues he satisfied the cause and

     prejudice test necessary to warrant leave to file a successive postconviction petition because his

     motion relied on case law that did not exist when he filed his prior postconviction petitions, and

     because his motion argued that his sentence is unconstitutional as applied to him, as the circuit

     court failed to take into account defendant’s intellectual disability, fetal alcohol syndrome,

     borderline personality disorder, and antisocial personality disorder during sentencing. We affirm.
¶2                                          I. BACKGROUND

¶3          On December 13, 1993, defendant pled guilty but mentally ill to first degree murder (720

     ILCS 5/9-1(a)(1) (West 1992)) and robbery (id. § 18-1). The factual basis for the plea showed

     that defendant entered the victim’s apartment with the intent to commit robbery. When the

     victim confronted him, defendant killed her and completed the robbery. The evidence showed

     that defendant was 24 years old at the time, and that he suffered from antisocial personality

     disorder, borderline personality disorder, and fetal alcohol syndrome.

¶4          The circuit court accepted defendant’s guilty plea and sentenced him to an extended term

     of 90 years’ imprisonment for first degree murder because the victim was over 60 years old, and

     15 years’ imprisonment for robbery, to be served consecutively in accordance with section 5-8-

     4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1992)). We affirmed

     defendant’s convictions and sentence on direct appeal. People v. Clark, No. 3-94-0148 (1996)

     (unpublished order under Illinois Supreme Court Rule 23).

¶5          On May 1, 2001, defendant filed a postconviction petition, arguing that his sentence

     violated Apprendi v. New Jersey, 530 U.S 466 (2000), his trial counsel provided ineffective

     assistance by coercing him into changing his plea, and the factual basis for his guilty plea was

     inadequate. The circuit court granted the State’s motion to dismiss the petition. On appeal, we

     granted appellate counsel’s motion to withdraw and affirmed the circuit court’s dismissal of

     defendant’s petition. People v. Clark, No. 3-05-0884 (2007) (unpublished dispositional order).

¶6          On December 20, 2010, defendant filed a successive postconviction petition, arguing,

     inter alia, that his sentence was void because he received two sentences based on the same

     conduct. The circuit court granted the State’s motion to dismiss the petition. On appeal, we




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       granted appellate counsel’s motion to withdraw and affirmed the circuit court’s dismissal of

       defendant’s petition. People v. Clark, No. 3-12-0742 (2013) (unpublished dispositional order).

¶7            On June 25, 2018, defendant filed the successive postconviction petition at issue.

       Initially, the circuit court denied the successive petition because defendant failed to submit a

       motion for leave to file. Defendant then filed a motion requesting leave to file his successive

       postconviction petition, in which he argued that newly discovered evidence in the fields of

       neurobiology and developmental psychology showed that his brain was not fully developed at

       the time of his offense, and therefore his sentence was unconstitutional. To support his argument,

       defendant relied on Miller v. Alabama, 

567 U.S. 460

 (2012) and People v. House, 

2015 IL App (1st) 110580

, vacated, No. 122134, (Ill. Nov. 28, 2018) (supervisory order), which were decided

       after he filed his prior postconviction petitions. The court denied defendant leave to file his

       successive postconviction petition, finding he failed to satisfy the requisite cause and prejudice

       test. Defendant appeals.

¶8                                               II. ANALYSIS

¶9            Defendant argues that he demonstrated cause and prejudice to file a successive

       postconviction petition because the case law surrounding intellectually disabled emerging adults

       has changed drastically since he was sentenced, and his sentence violated both the United States

       and Illinois Constitutions because the court failed to consider properly all mitigating factors

       during sentencing. We disagree. Defendant has failed to show the prejudice necessary to warrant

       leave to file a successive postconviction petition.

¶ 10          The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) generally

       contemplates only one postconviction petition filing. People v. Pitsonbarger, 

205 Ill. 2d 444, 456

       (2002). However, a court will grant leave to file a successive postconviction petition if the


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       petitioner demonstrates cause for failing to bring the claim in his initial postconviction

       proceedings and resulting prejudice. People v. Edwards, 

2012 IL 111711, ¶¶ 22-23, 31

. Cause is

       “an objective factor that impeded [the petitioner’s] ability to raise a specific claim during [the]

       initial post-conviction proceedings.” 725 ILCS 5/122-1(f) (West 2018). Prejudice occurs when

       “the claim not raised during [the] initial post-conviction proceedings so infected the trial that the

       resulting conviction or sentence violated due process.” 

Id.

¶ 11          Under the proportionate penalties clause of the Illinois Constitution, “[a]ll penalties shall

       be determined both according to the seriousness of the offense and with the objective of restoring

       the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. “A statute may be deemed

       unconstitutionally disproportionate if *** the punishment for the offense is cruel, degrading, or

       so wholly disproportionate to the offense as to shock the moral sense of the community ***.

       People v. Miller, 

202 Ill. 2d 328, 338

 (2002). The proportionate penalties clause is at least as far-

       reaching as the eighth amendment of the United States Constitution. People v. Horta, 

2016 IL App (2d) 140714, ¶ 62

.

¶ 12          After defendant filed his opening brief in this appeal, the Illinois Supreme Court decided

       People v. Coty, 

2020 IL 123972

, which involved a 46-year-old intellectually disabled defendant

       who received a statutorily mandated natural life sentence after his second conviction for a sexual

       offense against a child pursuant to section 12-14.1(b)(2) of the Criminal Code of 2012 (720 ILCS

       5/12-14.1(b)(2) (West 2004)). The court analyzed the defendant’s culpability, future

       dangerousness, and rehabilitative potential. Regarding the first two factors, the court determined

       that the defendant’s intellectual disability simultaneously diminished his culpability and

       indicated that he was a continuing danger to reoffend. Id. ¶¶ 33-36. Concerning the defendant’s

       rehabilitative potential, the court determined that while the United States Supreme Court’s


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       decision in Miller, 

567 U.S. 460

, is “based in part upon the lesser culpability of youth—a

       characteristic *** shared by the intellectually disabled—the Miller Court’s decision is founded,

       principally, upon the transient characteristics of youth, characteristics not shared by adults who

       are intellectually disabled.” (Emphasis in original.) Coty, 

2020 IL 123972, ¶ 39

. The Coty court

       found that “[w]hile defendant may be less culpable, because of his disability, *** the

       characteristics of his predominantly static condition and his age make him less likely to be

       rehabilitated and thus more likely to reoffend.” Id. ¶ 42. The court held that the defendant’s life

       sentence violated neither the proportionate penalties clause of the Illinois Constitution nor the

       eighth amendment of the United States Constitution. Id. ¶¶ 44-45.

¶ 13          Defendant cannot demonstrate the prejudice necessary to warrant leave to file a

       successive postconviction petition, as an intellectually disabled adult defendant’s natural life

       sentence violates neither the United States nor the Illinois Constitutions under Coty. See id.

       ¶¶ 39-45. Defendant acknowledges that Coty controls, but argues that his offense and his age

       when he committed the offense distinguish him from the Coty defendant. We do not accept

       defendant’s invitation to parse the Coty decision by distinguishing between a 24-year-old

       intellectually disabled defendant who committed first degree murder and robbery and a 46-year-

       old intellectually disabled defendant who was twice convicted for sexual offenses against

       children. The Coty court held that “[w]hile defendant may be less culpable, because of his

       disability, *** the characteristics of his predominantly static condition and his age make him less

       likely to be rehabilitated and thus more likely to reoffend.” Id. ¶ 42. The same is true of

       defendant in the instant case, whose intellectual disabilities limit his rehabilitative potential and

       increase his likelihood of reoffending.




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¶ 14           Further, because defendant was 24 years old when he committed first degree murder, he

       falls outside the consideration of Miller, 

202 Ill. 2d 328

, Miller, 

567 U.S. 460

, and other related

       case law finding that a nature life sentence without parole is unconstitutional when applied to

       defendants who were in their teens when they committed their offenses. See People v. Harris,

       

2018 IL 121932, ¶¶ 54-61

 (holding that an individual must be under the age of 18 for Miller, 

567 U.S. 460

, to apply). Thus, the case law defendant cites to satisfy the cause requirement does not

       apply to him.

¶ 15           In light of Coty, defendant has failed to show the prejudice necessary to satisfy the cause

       and prejudice test, and the case law upon which his motion relies is not applicable to his

       circumstances. The court properly denied defendant leave to file a successive postconviction

       petition.

¶ 16                                           III. CONCLUSION

¶ 17           The judgment of the circuit court of Knox County is affirmed.

¶ 18           Affirmed.

¶ 19           PRESIDING JUSTICE McDADE, dissenting:

¶ 20           I would reverse the circuit court’s denial of defendant’s motion for leave to file a

       successive postconviction petition and remand for first-stage postconviction proceedings.

       Accordingly, I respectfully dissent.

¶ 21           In Coty, 

2020 IL 123972, ¶ 19

, our supreme court addressed the following question:

       “whether a sentence of life imprisonment, mandatory or de facto, is permissible for this

       intellectually disabled adult twice convicted of a sexual offense perpetrated upon a young child.”

       The court stated that “[t]he whole point of the mandatory, natural life sentence for repeat sex

       offenders is to protect children by rendering it impossible for the incorrigible offender to

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       reoffend.” Id. ¶ 42. The Coty court held that the defendant’s life sentence violated neither the

       proportionate penalties clause of the Illinois Constitution nor the eighth amendment of the

       United States Constitution. Id. ¶¶ 44-45.

¶ 22          Defendant’s motion for leave to file a successive postconviction petition demonstrated

       cause, as the law has changed both substantially and substantively since his sentencing and prior

       postconviction filings. See 725 ILCS 5/122-1(f) (West 2018). The cases upon which defendant’s

       postconviction argument relies—Miller, 

567 U.S. 460

, and House, 2015 IL App (1st) 110580—

       were not decided when he filed his initial postconviction petition; thus, he could not raise this

       specific claim during his initial postconviction proceedings. By showing that he could not raise

       his claim until after those decisions were issued, defendant has satisfied the cause prong of the

       cause and prejudice test. See People v. Davis, 

2014 IL 115595, ¶ 42

 (“In terms of the requisite

       cause and prejudice of the Post-Conviction Hearing Act, Miller’s new substantive rule

       constitutes ‘cause’ because it was not available earlier to counsel ***.”).

¶ 23          The majority observes that the cases defendant cites involved defendants who were in

       their teens when they committed the offenses for which they were convicted, whereas defendant

       was 24 years old. This is not the standard defendant must satisfy to show cause. Instead, a

       defendant must identify “an objective factor that impeded his or her ability to raise a specific

       claim during his or her initial post-conviction proceedings.” 725 ILCS 5/122-1(f) (West 2018).

       Defendant has done so, as the case law upon which his argument relies on had not been decided

       when he submitted his initial postconviction petition. Therefore, he has demonstrated cause.

¶ 24          Further, defendant has shown prejudice by stating a claim, based on new case law, that

       his sentence is unconstitutional and violated due process. See 

id.

 Defendant’s claim relies, in

       part, on Miller, 

567 U.S. 460

, which our supreme court deemed sufficient to satisfy the prejudice


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       prong of the cause and prejudice test. See Davis, 

2014 IL 115595, ¶ 42

 (“Miller’s new

       substantive rule constitutes *** prejudice because it retroactively applies to defendant’s

       sentencing hearing.”).

¶ 25          The majority holds that defendant cannot show prejudice because, under Coty, an

       intellectually disabled adult defendant’s natural life sentence violates neither the United States

       nor the Illinois Constitutions. However, our supreme court determined only the constitutionality

       of the Coty defendant’s sentence, not the constitutionality of the sentence of every intellectually

       disabled adult defendant who has received a life sentence, or the equivalent thereof. See Coty,

       

2020 IL 123972, ¶ 19

 (“At its core, the question presented in this case is whether a sentence of

       life imprisonment, mandatory or de facto, is permissible for this intellectually disabled adult

       twice convicted of a sexual offense perpetrated upon a young child ***” (emphasis added)).

       Although there is not enough information in the Coty decision for a definitive comparison of

       their intellectual disabilities, this defendant differs significantly from Coty himself in that he was

       roughly half of Coty’s age when they committed their offenses, and he is not a sex offender

       subject to a specific sentencing mandate as Coty was. I would find that Coty does not control the

       outcome of defendant’s appeal and his claim does not fail as a matter of law.

¶ 26          Defendant showed the cause and prejudice necessary to warrant leave to file a successive

       postconviction petition, as the case law upon which his new claim is based did not exist when he

       filed his initial postconviction petition, and his new claim, which challenges the constitutionality

       of his sentence, is not controlled by Coty and does not fail as a matter of law. I would reverse the

       circuit court’s denial of defendant’s motion for leave to file a successive postconviction petition

       and remand the cause for first-stage postconviction proceedings, taking no position on the

       underlying petition itself.


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