People v. Searles , 2022 IL App (1st) 210043 ( 2022 )

2022 IL App (1st) 210043No. 1-21--0043
Opinion filed September 30, 2022
SIXTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 00 CR 17515(02)
)
JOHN SEARLES, ) The Honorable
) William G. Gamboney,
Defendant-Appellant. ) Judge, presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion.
Presiding Justice Mikva specially concurred with opinion.
Justice Mitchell dissented with opinion.
OPINION
¶1 Defendant John Searles was convicted after a jury trial of the first degree murder and
attempted armed robbery of Anthony Leyva. Defendant, who was 20 years old at the time of
the offense, was sentenced to consecutive sentences of 60 years for the first degree murder and
15 years for the attempted armed robbery, for a total of 75 years. This court affirmed his
conviction on direct appeal and affirmed the summary dismissal of his initial pro se
postconviction petition. In the instant appeal, he appeals the trial court’s denial of his motion
for leave to file his first successive postconviction petition.
No. 1-21-0043
¶2 Defendant argues that his pro se petition made a prima facie showing that his 75-year
sentence, without the possibility of either good-time credit or parole, for an offense he
committed in 2000 when he was 20 years old. violates the Illinois Constitution’s proportionate
penalties clause as applied to him, in light of his age, his history of mental health issues, and
his exposure to physical abuse and drug use at an early age.
¶3 For the following reasons, we reverse and remand for second-stage proceedings
consistent with this opinion.
¶4 BACKGROUND
¶5 The instant appeal concerns the proportionality of defendant’s sentence. Prior to this
offense, the 20-year old defendant had only one adult conviction, for the relatively minor
offense of defacement to property, and no juvenile record. In pronouncing a lengthy sentence,
the trial court mentioned in particular, “the nature of the offense” which the court found “to be
particularly aggravating,” in that “it was premeditated” and “done pursuant to a plan to rob the
victim” and defendant “armed himself with a particularly gruesome and deadly weapon.”
Although the appellate record does not contain a photo of the knife, it was described at trial as
having a curved blade with spikes on the handle and measuring 12 inches in overall length.
The trial court relied heavily on the age of the victim, who was 72 years old, as a particularly
aggravating factor; but it did not discuss defendant’s young age or any attributes or
characteristics relating to under 21-year olds.
¶6 Since the nature of the offense was the primary reason given for the long sentence, we
describe the evidence at trial in detail below. In short, the evidence established that the 72-year
old victim was married and was also dating Evelyn Rivera who he had met on a phone chat
line. Rivera’s best friend was 19-year old Vanessa Padin, and Rivera’s boyfriend was 20-year
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No. 1-21-0043
old defendant. The three friends talked about scaring Leyva with a knife, so that they could
grab a money pouch that Leyva always carried with him. They talked of using the money to
throw a “hotel” party for their friends. Rivera was the one who spoke to Leyva on the phone
and arranged for his visit to Rivera’s home, in the West Lawn neighborhood of Chicago. Rivera
also retrieved a knife from her room and handed it to defendant. When the three friends were
in Leyva’s car, defendant, who was sitting behind the driver, pulled out the knife. The two
girls immediately jumped out of the car and ran, leaving defendant as the only witness as to
what happened next in the car. Defendant testified that things went awry, when the car
suddenly jerked back and the knife that defendant was holding cut Leyva’s neck. After the cut
to Leyva’s neck, the car crashed into a gas station and defendant escaped out of the door where
Padin had previously sat. Padin testified that stabbing was not part of their plan.
¶7 I Trial
¶8 A. Marian Leyva
¶9 Marian Leyva, the wife of the victim, testified that they had been married for 40 years.
On June 24, 2000, the day of the offense, she went to babysit for her cousins’ children, and her
husband said he was going to have dinner with some friends but would join her later. While
babysitting, she received a call from her daughter that her husband had been taken to the
hospital, due to what she initially believed was a car accident. After calling the hospital, she
learned from a hospital chaplain that her husband had died.
¶ 10 B. Peter Karlovics
¶ 11 Peter Karlovics testified that, he was working a shift as an assistant State’s attorney
(ASA) in the felony review unit, when he received an assignment at 3 a.m. on June 25, 2000,
to go to Area One Police Headquarters on the south side of Chicago. There, he met with
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No. 1-21-0043
Detective Halloran, who informed him that three suspects were in custody: Evelyn Rivera,
Vanessa Padin, and defendant. Karlovics spoke first with Rivera and then with defendant.
¶ 12 Karlovics testified that he read defendant his Miranda rights at 4:15 a.m. in the presence
of Detective Halloran. During the ensuing interview, defendant stated that he had attempted
to rob and “car-jack” Leyva with the assistance of Rivera and Padin. During the attempt,
defendant stabbed the victim twice and then jumped out of the car and ran away. After making
this statement, defendant agreed to record it on videotape. Karlovics next spoke with Padin for
an hour. At 6:30 a.m., Karlovics called for the delivery of video equipment and a videographer
who arrived more than an hour later. All three suspects had agreed to provide videotaped
statements. Karlovics’ videotaped interview of defendant began at 8:47 a.m. on June 25, 2000,
and the videotape was admitted into evidence and played for the jury.
¶ 13 Neither the transcript nor the tape appears in the appellate record, although both were
admitted into evidence and impounded. In the appellate court order denying defendant’s direct
appeal, this court provided the following brief description of the taped statement:
“In defendant’s videotaped statement of June 25, 2000, he acknowledged that he told
assistant State’s Attorney Peter Karlovics that he had stabbed Leyva while trying to rob
him inside his car. He further said that on the way to the CTA he told Leyva to pull
the car over, Leyva cooperated, defendant pulled the knife out and ‘held it up and told
him to get out.’ Leyva refused, put the car in motion, and the two struggled over the
knife. Defendant said that he ‘was just trying to cut him in the neck and get him to ***
let go of the knife and let [him] 1 go already.’ ” (Ellipses and brackets in original.)
1
The brackets around “him” are in the Rule 23 order. It appears as though defendant was saying
that he wanted Leyva to let “him” (defendant) go.
4
No. 1-21-0043
People v. Searles, No. 1-02-2598, slip op. at 5 (Mar. 31, 2004) (unpublished order
pursuant to Supreme Court Rule 23).
¶ 14 During cross examination, Karlovics provided the following details from the taped
interview. Defendant stated that he used to date Rivera but that Rivera had been dating Leyva
for a few months. Rivera and Leyva generally went out once or twice a week. Rivera was
supposed to leave for Puerto Rico on June 25. Rivera told defendant that Leyva carried money
in a black pouch, and she talked about trying to rob Leyva with a knife that she had. Rivera
said that Leyva’s car doors might be unlocked. After observing Leyva parked in front of
Rivera’s house, defendant tried the car doors and discovered the doors were not unlocked. In
response, Leyva rolled down his window and defendant told him that Rivera would be right
down. Defendant then went back upstairs to Rivera.
¶ 15 Vanessa Padin, age 19 at the time of the offense, testified that she lived with her
boyfriend and baby daughter in the basement of the same house where Rivera occupied the
second floor. Padin’s boyfriend’s father lived on the first floor, in between them. Rivera lived
with Rivera’s mother and sister, and Padin and Rivera had been friends for two years. Padin
first met defendant when Rivera “hooked up with him on a date service.” On June 24, 2000,
Leyva was Rivera’s boyfriend, and defendant was an ex-boyfriend of Rivera’s. On June 24,
at around noon, defendant came to Rivera’s home. In addition to Padin and Rivera, Rivera’s
younger sister and brothers were at Rivera’s home. Rivera was planning on going to Puerto
Rico on Sunday, June 25, 2000, and Rivera, Padin and defendant were planning on throwing
Rivera a party. Defendant had a cousin who was going “to throw a hotel party.” However,
Rivera, Padin, and defendant had no money for a party. Rivera said that she was seeing a guy
who had money and she wanted to rob him. The plan was that, when Leyva came to Rivera’s
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No. 1-21-0043
house, defendant would go into Leyva’s car, scare him “with the knife,” and run off with the
car. Rivera said that Leyva carried money with him in a purse by his side. Rivera provided
defendant with a knife that had spikes, and Rivera received a call from Leyva. Defendant went
downstairs ten minutes before Leyva arrived. Watching from an upstairs window, Padin saw
that, after Leyva pulled up in front of the house in a four-door car, defendant tried to open the
passenger door but it did not open. Defendant then walked to the driver’s side and came back
upstairs. Defendant stated, “that plan didn’t work.”
¶ 16 Padin testified that they had discussed other plans before defendant tried to open
Leyva’s door. Rivera had suggested that Padin could go in the car with Rivera, that Rivera
could make out with Leyva in the front seat, and that Rivera could throw Leyva’s purse in the
back seat. However, Rivera stated the make-out plan would not work because Leyva would
not kiss Rivera in front of Padin. That is when Rivera said she would just throw the purse out
the window. However, defendant thought that was a bad idea. Padin suggested that they could
give Padin a ride to “the Orange Line,” and “by both of us being in the car with each other,
[defendant] could—by me being a female and him being in the car with me, we could both get
in the car.” Padin believed that Leyva would only drive defendant somewhere if Padin also
entered the car.
¶ 17 Padin testified that, after defendant came back upstairs, the three of them went
downstairs together and entered Leyva’s car, with Rivera sitting in the front passenger seat,
Padin sitting behind Rivera, and defendant sitting behind the driver. Rivera asked Leyva to
drive Padin and defendant to the Orange Line which he agreed to do. After a couple of blocks,
defendant told Leyva to stop at a stop sign, and Leyva said, “ ‘I thought you wanted me to drop
you off at the Orange Line.” But Leyva stopped the car, and defendant pulled out the knife
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No. 1-21-0043
and said: “Give me your money or I’m gone to kill you.” Defendant held the knife near
Leyva’s neck while Leyva kept saying no. Padin tried to open the back door but could not
because it had a child safety lock. Rivera exited the front seat, opened the back door for Padin,
and the two of them ran from the car. When Padin last saw defendant in the car, defendant’s
arm was no longer near Leyva’s neck but down near his midsection. As they ran, Padin looked
back and observed the car pulling away.
¶ 18 Padin testified that the two girls ran initially but then walked back to their house. As
Rivera and Padin were heading to the back stairs, Rivera mentioned that she had observed
defendant in the garage. When Rivera mentioned seeing defendant, Padin said that they should
go in the front of the house instead. As Rivera and Padin walked down the gangway toward
the front of the house, defendant followed behind them and into the house. In the house,
defendant stated “that he stabbed him six times in his side, and he stabbed him in his neck so
he wouldn’t talk.” Rivera kept asking defendant about the money but defendant did not say
anything about it. Defendant said that the car had crashed into a gas station, so Rivera and
Padin walked toward the gas station to see if defendant was lying about the stabbing. Rivera
left Padin at a taco shop a couple of doors down from the gas station, and Rivera continued
walking toward the gas station. Padin waited ten minutes and then went back to the house.
When Padin returned to the house, defendant was wearing different clothes. Defendant said
that he took off his hoodie because it had blood on it. Rivera returned to the house later that
evening with police. Padin answered the door and a policeman asked for Rivera’s mom who
Padin went to get. Rivera’s mother came down to talk to the police, and the police then went
up to Rivera’s apartment. Padin was in Rivera’s apartment, as was defendant, when the police
entered it.
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No. 1-21-0043
¶ 19 Padin testified that, after the police left with defendant, she spoke with Detective John
Halloran and showed him where Rivera kept the knives and where Rivera and defendant’s wet
clothing was. Padin later went to the police station where she gave a videotaped statement and
she was charged with first degree murder and attempt armed robbery. Padin’s attorney and the
State reached a plea agreement whereby, in exchange for her testimony, the State would
dismiss the murder charge against her, but proceed with the attempt armed robbery charge,
which had a possible sentence of 4 to 15 years. Padin understood that the State was going to
recommend a 14-year sentence that was eligible for 50% good-time credit, such that it was
possible for her to serve only 7 years in jail. Padin identified the knife and its sheath and
testified that, when defendant received the knife, it was in the sheath.
¶ 20 On cross examination, Padin testified that Rivera met Leyva on a “party line service,”
which Padin described as a 900 number where people could call and chat. Padin and Rivera
did not do any drugs while waiting for Leyva and she did not think defendant did either. Padin
testified that Rivera collected knives. Padin said it surprised her when defendant pulled out
the knife; Padin was scared and wanted out of the car. However, she could not open the door
because it seemed as though a child safety lock was on. Rivera had to exit the front passenger-
side door and open Padin’s door from the outside. Padin did not remember telling Detective
Halloran that defendant kept telling Leyva to stop the car. On redirect, Padin testified that she
became scared when defendant pulled out the knife because she had not thought defendant was
“going to do it.” Stabbing was not part of the plan.
¶ 21 Peter Larcher, a Chicago police officer, testified that he was an evidence technician
who helped process the crime scene and he identified photos showing where the knife was
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No. 1-21-0043
recovered in the car; where a gym shoe was recovered near the car, and where a sheath for the
knife was found in a nearby alley.
¶ 22 Sergeant James Bland testified that, in the evening of June 24, 2000, he was working
as a patrolman on the southwest side of Chicago with his partner Officer Margaret Burke. They
were in uniform and in a marked police car. It was “pouring rain” when they received a call to
assist at a nearby vehicle crash. When they arrived, paramedics were trying to remove the
driver from the vehicle. After Bland exited his car and walked over, he observed the victim on
a stretcher and the paramedics loading him into an ambulance. The victim was bleeding
profusely and was unresponsive. After Bland had been on the scene for ten or fifteen minutes,
Evelyn Rivera arrived and tried to get past the yellow accident-scene tape. When Bland
stopped her, she stated “that’s my boyfriend’s car.”
¶ 23 Bland testified that he “put” Rivera in the back seat of his police car in order to “get
her out of the rain.” Bland and his partner, Burke, spoke to Rivera, and she provided them
with the description of a suspect. Bland and Burke were driving Rivera to the police station,
but they stopped first at Rivera’s house so they could inform her mother where she was going.
After arriving at Rivera’s house, Bland exited the car leaving his partner with Rivera in the car.
Another police car pulled up and an officer 2 from the other car accompanied Bland as he
walked toward Rivera’s home. They knocked on a door on the first floor and were informed
that Rivera lived upstairs. After they headed upstairs, Vanessa Padin opened the door. When
Bland asked for Rivera’s mother, Padin invited them inside. Bland entered and was walking
down a hallway with doors off of it, when Bland observed defendant standing “right inside”
2
On cross, Bland testified that this officer’s last name was Rybolt.
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No. 1-21-0043
the first doorway. Bland reached out and grabbed him because he matched the physical
description provided by Rivera. Bland noticed that defendant was shoeless.
¶ 24 Bland testified that he asked defendant who he was, and he replied that he was a friend
of Rivera’s. When Bland asked about defendant’s shoes, he said they were in another room.
After placing defendant in handcuffs, Bland called for back-up. Rivera’s mother agreed to a
search of the house during which Bland found two piles of “sopping wet” clothes. One pile
matched Rivera’s description of the offender’s clothing, and the other pile contained Rivera’s
clothes.
¶ 25 On cross examination, Bland testified that, after arriving at the scene, he looked inside
the victim’s car and observed a black bag and a knife inside the car. The knife was “on the
console,” when he first saw it. Bland testified that the two piles of wet clothes were in a
bedroom off the kitchen, on the floor. A staircase led from that bedroom to the outside.
¶ 26 Detective John Halloran testified that, on June 24, 2000, at 8:30 p.m. he and his partner,
Detective Frank Valadez arrived at the crime scene with Detective John Murray. It was raining
heavily. Inside the victim’s car, he observed smears and pools of blood and “a large curved
bladed knife,” which measured 12 inches in overall length, including a five-inch long blade.
The knife rested in a pool of blood “on the center console.” Near the car, he observed a gym
shoe. While Halloran was at the scene, Rivera approached and he spoke with her while she
was seated in the backseat of Bland’s police car. Before leaving the scene at 10 p.m., he
directed Bland to transport Rivera to Halloran’s office. After departing the scene, Halloran
went to the hospital to observe the body and he noted a large gaping stab wound to the victim’s
neck, approximately six puncture wounds by the victim’s right shoulder, and lacerations on
the right side of the victim’s stomach and on his hand.
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No. 1-21-0043
¶ 27 Halloran testified that, before leaving the hospital, he was notified of activity at
Rivera’s house and so he drove there. Rivera’s house was five to six blocks from the offense
scene. When Halloran arrived at Rivera’s house, he observed Rivera seated in one police car
and defendant seated in another, and Padin “moving about in and out” of Rivera’s house.
Defendant did not have shoes on. The police located a sheath cover for the knife in an alley
near the offense scene. After searching, the officers and the three suspects went to the police
station, where Halloran spoke to all three suspects. After the interviews, Halloran called ASA
Karlovics who came to the station, arriving at 3 a.m. on June 25. Karlovics also interviewed
the three suspects and then called for a videographer who arrived at 8 a.m. on June 25.
Videotaped statements were recorded from all three suspects and all three suspects were
charged. While at Rivera’s house, Halloran did not observe any evidence of narcotics or drugs
in the house. From Leyva’s car, Halloran removed a black pouch containing a wallet with
identification belonging to Leyva and $420 in cash in a rubber band. On cross examination 3,
Halloran testified that Padin told him that defendant ordered Leyva to stop the car.
¶ 28 The State introduced and the court admitted a certified copy of the victim’s birth
certificate, showing that the victim was 72 years old. The State then called Dr. James Filkins,
who had been an assistant medical examiner back in June 2000, with the Cook County Medical
Examiner’s Office. Filkins had performed the autopsy on the victim. The court found, without
objection, that Dr. Filkins was qualified to testify as an expert in forensic pathology. Dr.
Filkins testified that the victim had a number of injuries on his body, including: a “slicing or
incised wound” on the right side of the neck that severed the carotid artery and the jugular vein,
a scraping cluster of abrasions on his right shoulder, a puncture wound on his right shoulder, a
3
A page of Halloran’s cross examination is missing from the appellate record.
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No. 1-21-0043
scraping abrasion on the right side of his back, a puncture wound on the right side of his back,
an abrasion near his belly, and two abrasions on the front of his right thigh. The victim also
had a number of injuries on his hands, including: a slicing wound on his right index finger, a
slicing wound on the back of his right hand, and two puncture wounds on the left ring finger.
The injuries on the victim’s hands were consistent with being defensive wounds. The victim’s
injuries were consistent with being caused by the knife in evidence. The incised or slicing
injuries would have been caused by the blade portion of the knife, while the puncture wounds
would have been produced by the “pointed barbs on the handle portion of the knife.” The
lacerations could have been caused by either the blade or the barbs. The doctor would expect
to see a lot of bleeding from the cuts to the carotid artery and the jugular vein, since the carotid
artery is the main artery carrying blood from the heart to the brain and the jugular vein is the
main vein carrying blood back from the brain to the heart. The doctor performed toxicology
tests for alcohol, cocaine and opiates and each of the test results was negative. On cross, he
testified that, while one wound was more serious than the others, the multiple wounds all
contributed to the victim’s death.
¶ 29 After the State rested and the court denied defendant’s motion for a directed verdict,
the defense called defendant as a witness on his own behalf. Prior to his testimony, the trial
court informed the jury that “due to an injury *** [defendant] has his jaw *** wired shut and
so he may have some difficulty speaking to you but I’m sure he’s going to do the best he can.”
The trial court instructed: “Let me know if there is anything you don’t understand[;] just raise
your hand.”
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No. 1-21-0043
¶ 30 Defendant testified that he was 22 years old at the time of the trial. Prior to the offense,
he had lived with his mother and worked in a Chicago public school as a janitor. 4 Defendant
met Rivera through defendant’s brother and had known her for four months. During this time,
defendant and Rivera became engaged to be married. Defendant later found out that Rivera
had another boyfriend, namely, Leyva. Two months before the offense, Rivera told defendant
about Leyva. However, defendant had not met or seen Leyva prior to the day of the offense.
¶ 31 Defendant testified that, on June 24, 2000, defendant woke up at Rivera’s house at 9
a.m. and they were “getting the kids together” and Rivera’s mother had already left for work.
During the morning, defendant and Rivera were planning a party and smoking “P.C.P.” At
“about noontime,” Padin was at Rivera’s house and Padin started smoking P.C.P. at about 2
p.m. Leyva called and Rivera spoke to him. After the phone call, Rivera said that they should
rob him “to get some money together to have” a party because Leyva had between $200 and
$500 in traveler’s checks on him. Padin and Rivera discussed Rivera fooling around with
Leyva in his car, so that Rivera could toss Leyva’s wallet out the window. Then Padin came
up with the idea that Rivera could toss “the pouch” in the back seat. Leyva called twice more,
and defendant said that they “should just rob him.”
¶ 32 Defendant testified that Rivera called Leyva at 6:30 p.m. to come pick her up. Rivera
went into her room, got the knife in question, gave it to defendant and stated that Leyva would
be there at 8 p.m. When Leyva called to say he was close by, defendant went downstairs and
out the front of the house. Rivera had mentioned that Leyva’s car doors were always unlocked,
so defendant tried to open a door but found it locked. Defendant walked around to the driver’s
4
Later, on cross examination, defendant testified that, on the day of the offense, he was living
with Rivera, not his mother, and that he had not worked in months.
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No. 1-21-0043
side and Leyva rolled down his window, and defendant told him that “it would be just a
minute.” Defendant then went back upstairs to Rivera’s home and told Rivera that we “can’t
rob him he knows what is going on.” Rivera got mad and said that they would just drop
defendant off at the train station. After Rivera, defendant, and Padin went outside, Rivera told
Leyva to drop defendant and Padin at the train station. At that point, defendant’s intent was to
go to the train station and he “wanted to get away from the whole scene.”
¶ 33 Defendant testified that, after Rivera, defendant, and Padin entered Leyva’s car, Leyva
drove a couple of blocks and defendant pulled out the knife. Defendant testified that he pulled
out the knife because he “wanted it out of the car.” Defendant told Leyva several times to stop
the car. Instead, Leyva grabbed the knife. Defendant “just wanted out of the car.” Defendant
was becoming angry because Rivera was sitting in the front seat with Leyva, holding hands.
When defendant pulled out the knife, the knife was between the seats. When Leyva grabbed
the knife, defendant told him: “no, give me the knife and let me out of the car.” Defendant
did not ask Leyva for money and did not have the knife around Leyva’s neck. When Leyva
stopped the car, both girls jumped out and defendant tried to take back the knife so he could
jump out too, but Leyva “took off, hit the gas.”
¶ 34 Defendant testified that he was trying to reach over the seat, “the console for the gears
to try put it in park,” so he could exit. During this time, defendant and Leyva were struggling
back and forth over the knife. Defendant finally reached the gears with his left hand and Leyva
accelerated. Defendant thought the car was parked but it “jerked” and then kept going. When
the car jerked, defendant “came back with the knife and it cut [Leyva] in the neck.” When the
car jerked, it went into neutral, and defendant went backwards and cut Leyva. Then the car
went “back up to 30” miles per hour. Defendant thought that, prior to the neck cut, defendant
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No. 1-21-0043
may have cut Leyva “on the side because [Leyva] pulled the knife down and [defendant] pulled
it back up.” After the neck cut, the wheel turned and the car crashed into a gas station.
Defendant was able to open the door that Padin had exited from and he jumped out of the car.
Defendant never demanded money from Leyva and did not intend to rob or hurt him.
¶ 35 Defendant identified photos taken at the police station showing injuries to defendant’s
right and left hands, as a result of the altercation. After exiting Leyva’s car, defendant went to
Rivera’s house. When Rivera returned, defendant went upstairs and changed his clothes.
Eventually defendant went to the police station and gave a couple of statements regarding the
incident.
¶ 36 On cross examination, defendant testified that he had dated Rivera for four months and
had been engaged for three weeks, prior to the offense. Defendant was not happy that Rivera
was also dating Leyva, who she had been dating for three months. When defendant saw Leyva
for the first time, which was the night of the offense, defendant was surprised how old he was.
At that time, defendant had not worked for two months. Defendant was not living with his
mother but with Rivera; he slept at Rivera’s house every night. Leyva took Rivera out to dinner
and to restaurants, but she never said they had sex. Rivera mentioned more than once that
Leyva carried a wad of bills with hundreds of dollars in a bag which he always had with him
in his car. The night of the offense, a party had been planned for Rivera but it had to be
cancelled. They had planned to do drugs and drink at the party, with defendant expected to buy
drugs and alcohol for it. Rivera wanted a party because she was leaving the next day for Puerto
Rico. Since Rivera wanted a party, defendant wanted to help throw it, and so he needed money
for it. The three of them talked about robbing Leyva. Defendant testified: “I said I would rob
him.” While it was Rivera and Padin’s idea to rob Leyva, it was defendant’s idea to try to
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No. 1-21-0043
“carjack” him. When he received the knife, which he identified by exhibit number, it was
sheathed in a leather case, and defendant hid it in his pants.
¶ 37 Defendant testified that, after he went outside, spoke to Leyva and returned to Rivera’s
home, defendant just wanted a ride to “the el” to go to a friend’s house. At that point, the
intended carjacking had not worked. Defendant called a friend using Rivera’s phone and said
he was coming over. Defendant was upset and had no intent of going to a party. When the
three entered Leyva’s car, Rivera asked Leyva to drive both Padin and defendant to the el.
Defendant assumed that Padin, who lived in the same building as Rivera, was also going to
defendant’s friend’s house. In Leyva’s car, defendant sat in the back seat, behind the driver.
When defendant told Leyva to stop the car, defendant already had the knife out, between the
headrests of the front seats. In order to pull out the knife, defendant had to pull it out from
inside his pants and pull it out from its leather sheath. The sheath had a buckle which defendant
had to unbuckle. When Leyva stopped the car and the two girls exited, defendant stayed in the
car, in order to get the knife back from Leyva. Leyva had grabbed for the knife with his right
hand, and Leyva’s hand was mostly over defendant’s right hand, which was on the knife
handle. After the car crashed, defendant left the knife in the car and ran, leaving a shoe behind.
As he was running to Rivera’s house, defendant threw away both the other shoe and his hooded
sweatshirt. At Rivera’s house, defendant changed clothes, as did Rivera and Padin, since the
clothes were soaking wet. Rivera asked defendant about the money, but he did not want to talk
about it. Rivera left and defendant watched a movie for a few minutes. At some point, the
police arrived and transported defendant to the police station, where defendant told Detective
Halloran that this was a terrible accident. Detective Halloran told defendant that “everybody
was cooperating and [defendant] tried robbing” Leyva. At one point, defendant had told
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No. 1-21-0043
Detective Halloran that another man, who was defendant’s cousin, had entered Leyva’s car
and stabbed him, but that was not true. At the end of his testimony, defendant admitted that
he killed Leyva, but asserted that he was only aware of stabbing him once.
¶ 38 After defendant’s testimony, the defense rested. During jury instructions, the jury was
instructed on, among other things, felony murder, or that it could find defendant guilty of first
degree murder if, in performing the acts which caused death, he was attempting to commit the
offense of armed robbery. After listening to closing arguments and jury instructions, the jury
retired to deliberate at 7:06 p.m. and returned at 8:58 p.m. with a verdict finding defendant
guilty of first degree murder and attempt armed robbery.
¶ 39 II. Sentencing
¶ 40 On August 5, 2022, the trial court denied defendant’s posttrial motion for a new trial
and proceeded to sentencing. The sentencing range for first degree murder was 20 to 60 years
(730 ILCS 5/5-8-1(a)(1)(a) (West 2000)), and the sentencing range for attempted armed
robbery was 4 to 15 years (720 ILCS 5/8-4(c)(2), 18-2(b) (West 2000), 730 ILCS 5/5-8-1(a)(4)
(West 2000)). In addition, the trial court had the authority to impose an extended-term sentence
(730 IlCS 5/5-8-2 (West 2000)) for the murder, since the victim was over 60 years old (730
ILCS 5/5-5-3.2(b)(4)(ii) (West 2000)). The minimum extended term sentence for first degree
murder was 60 years, with a maximum of 100 years. As explained below, the trial court
declined to impose an extended term sentence and chose, instead, to consider the victim’s age
as an aggravating factor within the original 20-to-60-year sentencing range for murder.
¶ 41 In aggravation, the State asked the trial court to consider the victim impact statements
from the victim’s wife and daughter and noted that defendant had agreed to stipulate to a
pending matter. In an unrelated matter, defendant had been charged with possession of
17
No. 1-21-0043
marijuana in a penal institution. The State agreed that defendant’s prior criminal history was
“not extensive.” Defendant had only one prior adult conviction for criminal defacement to
property, and a computer search revealed no juvenile records.
¶ 42 In the presentence investigation report, defendant reported that his father was abusive
and, as a result, defendant slept at night with a knife. His father had a heroin addiction and
physically abused his mother for several years prior to their separation. Defendant reported
that he had been hospitalized for a month at age twelve and again for a month at age 14 in a
mental hospital. With respect to the second hospitalization, defendant reported that his mother
thought he was suicidal because he had lost his best friend. Defendant reported that he started
smoking marijuana when he was eleven and that he had used cocaine, acid, PCP and ecstasy.
Prior to his incarceration, defendant used PCP every few days and was under its influence
when arrested. He had never received drug treatment. Defendant described his physical
condition as “fair,” reporting that he suffered from asthma since birth and used an asthma pump
on a daily basis. In mitigation, defendant submitted letters from his grandmother, mother,
sister and brother, and noted that he had received his GED while in Cook County Jail.
Defendant also expressed remorse for the victim and his family.
¶ 43 The letters that defendant submitted from his family are not in the appellate record.
Other than to state that he had read the letters, the trial court did not describe the letters, so the
record does not reveal their length, level of detail, or what they said. Unlike the letters in
mitigation, the victim impact statements from Leyva’s wife and daughter are present in the
record.
¶ 44 Pronouncing sentence, the trial court found:
18
No. 1-21-0043
“I am acutely aware of the nature of the offense as I presided over this trial. And I
have taken into consideration the history and character of defendant.
It is clear and has been proven actually by the jury’s determination that the victim
in this case was over the age of 60. In fact, he was significantly older than that. I find
that obviously to be aggravating. It’s an aggravating factor under the statutory
aggravating factors. In addition, it is a fact that can be used to impose an extended term
sentence with regard to [defendant].
The nature of the offense I also find to be particularly aggravating. I find that it
was premeditated. That it was done pursuant to a plan to rob [the victim]. [Defendant
armed himself with a particularly gruesome and deadly weapon. ***
On the other hand, I have taken into consideration the matters that were brought to
my attention in the letters that I have received from [defendant’s] family and what is
included in the pre-sentence investigation. I also take into account the fact that
[defendant] does not have any significant prior criminal history.
As the result of that, the court has concluded that although it will be within my
authority at this time to impose an extended term sentence with regard to the offense
of first degree murder, I am going to decline to do so.
I will utilize in my considerations, however, the age of the victim as an aggravating
factor within the original range of sentencing for the offense of first degree murder
I am going to sentence [defendant] to the maximum that I can sentence him for in the
original range for first degree murder.
[Defendant] will be sentenced to 60 years ***.”
19
No. 1-21-0043
¶ 45 The court noted that defendant “will serve 100 percent” of the 60-year sentence, and the
court imposed an additional 15-year consecutive sentence for the attempt armed robbery.
Defense counsel immediately tendered a motion to reconsider sentence which alleged that
defendant’s sentence was excessive and disparate when compared to the sentences of his co-
defendants Rivera and Padin who received 38 years and 14 years, respectively. The trial court
denied the motion and the State moved to nolle pros the marijuana possession charge, which
the court granted.
¶ 46 III. Direct Appeal
¶ 47 On direct appeal, defendant argued that the trial court erred by refusing to instruct the
jury regarding involuntary manslaughter and by not instructing the jury sua sponte on the lesser
included offense of conspiracy to commit attempted armed robbery.
Additionally, defendant claimed that his sentences were excessive and that the trial court failed
to take into account his age, his lack of criminal background and his completion of his G.E.D.
in jail. In an order issued on March 31, 2004, the appellate court did not find these claims
persuasive. People v. Searles, No. 1-02-2598, at 8-9 (Mar. 31, 2004) (unpublished order
issued pursuant to Rule 23). Finding no abuse of discretion, the appellate court found:
“Prior to sentencing, the trial court considered the letters submitted by defendant’s
family, acknowledged that he did not have any significant prior criminal history, and
reviewed the presentence investigation report which mentioned that he had obtained a
G.E.D. Defendant was also allowed to address the court. During his allocution, he
stated that he was sorry and he felt remorse for the victim and his family. However,
the trial court determined that defendant’s sentences were appropriate after noting that
the victim was significantly over the age of 60, that the crime was premediated and
20
No. 1-21-0043
done pursuant to a plan to rob the victim, and that defendant armed himself with a
particularly gruesome weapon. Given the considerable discretion accorded to the trial
court in determining the appropriate sentence, and recognizing that defendant was
eligible for a maximum term of 100 years on the murder count, we find no abuse of
discretion.” Searles, No. 1-02-2598, at 11.
In support, the appellate court cited People v. Peacock, 324 Ill. App. 3d 749 (2001), in which
the court found no abuse of discretion in sentencing a 17-year old with no criminal background
to 110 years for the murder and car-jacking of a 60-year old victim. Searles, No. 1-02-2598, at
11.
¶ 48 IV. Initial Postconviction Petition
¶ 49 In defendant’s initial pro se postconviction petition, filed on March 9, 2005, defendant
raised a number of claims, including that his trial counsel was ineffective for failing to raise
the issue of defendant’s mental health and that the trial court erred when it forced defendant to
go to trial even though defendant had a broken jaw. The trial judge, who was the same trial
judge who had presided over defendant’s original trial, dismissed the petition as frivolous and
patently without merit on March 18, 2005.
¶ 50 On August 15, 2006, the appellate court affirmed the dismissal. People v. Searles, No.
1-05-2203 (Aug. 15, 2006) (unpublished order pursuant to Rule 23). In the order affirming the
dismissal, the court noted that defendant claimed that he had informed his trial counsel that he
had been placed on a number of different medications due to mental disorders, but his counsel
told him not to worry about it and avoid the medication if possible. Defendant claimed that
his trial counsel was ineffective for failing to raise the issue of defendant’s competence to stand
trial and to move for a competency hearing and that his appellate counsel was ineffective for
21
No. 1-21-0043
failing to raise on direct appeal his fitness to stand trial. Defendant’s petition claimed that his
allegations were supported by evidence of his “ ‘long history of mental illness as evinced by
his frequent hospitalizations beginning in childhood.’ ” Searles, No. 1-05-2203, at 2-3.
¶ 51 The appellate court found that defendant’s psychological problems as detailed in the
presentence report “related solely to his childhood problems,” and that there was no indication
that these problems had continued into adulthood. Searles, No. 1-05-2203, at 6. Although
defendant claimed that he was on different medications due to different mental disorders, the
appellate court found that he did not provide “specificity” or evidence that it affected his ability
to understand the proceedings against him or participate in his defense. Searles, No. 1-05-2203,
at 6. As a result, the court did not find this claim persuasive.
¶ 52 V. The Instant Petition
¶ 53 On October 23, 2019, defendant filed pro se: (1) a motion for appointment of counsel;
(2) a petition for leave to file a successive postconviction petition; (3) a postconviction petition;
and (4) a supporting memo. Defendant alleged that, although he was 20 years old at the time
of the offense, he had the mental capacity of an adolescent, in light of his documented history
of mental illness and drug abuse. Defendant alleged that the trial court imposed sentence
without any consideration of his age, impetuosity, level of maturity, susceptibility to peer
pressure or potential for rehabilitation. Defendant alleged that, without any eligibility for
parole or good-time credit, his earliest possible release date was at age 87, if he lived that long.
Defendant claimed that his sentence, in light of the truth-in-sentencing laws requiring him to
serve his entire sentence, violated both the proportionality clause of the Illinois Constitution
and the eighth amendment of the United States Constitution, as applied to him.
22
No. 1-21-0043
¶ 54 In support, he cited precedent and statute decided or enacted only a few months earlier,
including: (1) People v. Othman, 2019 IL App (1st) 150823, ¶ 90, 5 where this court found that
the Truth in Sentencing Act (735 ILCS 5/3-6-3(a)(2)(i) (West 2006)) was unconstitutional as
applied to juvenile defendants; (2) People v. Buffer, 2019 IL 122327, ¶ 41, where the Illinois
Supreme Court found that a prison sentence of more than 40 years imposed on a juvenile
constituted a de facto life sentence; and (3) an under-21 parole statute which provided, in
relevant part, that “[a] person under 21 years of age at the time of the commission of first
degree murder who is sentenced on or after June 1, 2019 (the effective date of Public Act 100-
1182) shall be eligible for parole review by the Prison Review Board after serving 20 years or
more of his or her sentence or sentences, except for those subject to a term of natural life
imprisonment.” 730 ILCS 5/5-4.5-115(b) (West 2020).
¶ 55 Defendant sought “some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation” and a “hearing in accordance with new case/and
state laws.”
¶ 56 The first hearing on his petition, for which we have a transcript, occurred on February
21, 2020. An ASA appeared on behalf of the State, and the transcript notes that “[n]one
appeared on behalf of the Defendant.” The trial judge stated that he had no idea why the matter
was here and asked the State if it knew, and the ASA offered to order the “State file.” On April
3, 2020, an ASA was again present when the matter was continued. On October 30, 2020,
over a year after defendant’s motion was filed, the trial court indicated in a Zoom proceeding,
5
The appellate court issued a new opinion after a remand and supervisory order from the Illinois
Supreme Court. People v. Othman, 2020 IL App (1st) 150823-B.
23
No. 1-21-0043
with an ASA present, that it was denying defendant’s motion for leave, for reasons indicated
in a written order.
¶ 57 In its written order, dated October 30, 2020, the trial court observed:
“[Defendant] merely reports his age, his lack of a prior criminal background, and that
he ‘suffered through parental neglect and physical abuse as a child’ and ‘grew up in a
crime and gang infested neighborhood.’ [Defendant] makes a conclusory statement that
he ‘had the mental and maturity level of a child.’ ”
The trial court found defendant’s sentencing claims unpersuasive.
¶ 58 On March 18, 2021, this court granted defendant’s motion for leave to file a late notice
of appeal from the trial court’s October 30, 2020, order and appointed the State Appellate
Defender to represent defendant.
¶ 59 ANALYSIS
¶ 60 In the case at bar, defendant seeks leave to file a successive petition pursuant to the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). The Act provides
a statutory remedy for criminal defendants who claim that their constitutional rights were
violated at trial or at sentencing. People v. House, 2021 IL 125124, ¶ 15 (the Act permits
inquiry into constitutional issues relating to conviction or sentence). Although our supreme
court has made clear that the Act contemplates only one postconviction proceeding,
“[n]evertheless, [the supreme] court has, in its case law, provided two bases upon which the
bar against successive proceedings will be relaxed.” People v. Edwards, 2012 IL 111711, ¶ 22.
To file a successive petition, a defendant must establish either (1) cause for not filing earlier
and prejudice or (2) actual innocence. Edwards, 2012 IL 111711, ¶¶ 22-23. In the instant case,
defendant alleges only cause and prejudice.
24
No. 1-21-0043
¶ 61 Prior to commencing a successive proceeding, a defendant must obtain leave of court
to file his or her petition. People v. Robinson, 2020 IL 123849, ¶ 43. At this threshold stage,
when a defendant seeks leave to file, he or she is required to demonstrate only “a prima facie
showing of cause and prejudice.” People v. Bailey, 2017 IL 121450, ¶ 24. If leave to file is
granted, the petition will be docketed for second-stage proceedings. People v. Sanders, 2016
IL 118123, ¶ 28. Thus, at this early leave-to-file stage, the petition does not have to make the
“substantial showing” that will later be required at a second-stage hearing after counsel is
appointed. Robinson, 2020 IL 123849, ¶ 58. “[L]eave of court to file a successive
postconviction petition should be denied only where it is clear from a review of the petition
and attached documentation that, as a matter of law, the petitioner cannot set forth a colorable
claim ***.” Sanders, 2016 IL 118123, ¶ 24.
¶ 62 We find it troubling that the State was present at hearings at which the trial court
considered and ultimately denied defendant’s motion for leave to file, and that, when the trial
court expressed confusion about what the case was about, the State offered to provide its own
file—and may have in fact provided it, for all we know. Our supreme court has found it
“improper for the State to provide input to the court before the court has granted a defendant’s
motion for leave to file a successive petition.” People v. Bailey, 2017 IL 121450, ¶ 20. The
motion for leave to file is directed to the court alone, and it is the court alone who should decide
the preliminary legal question of whether the defendant made the required cause-and-prejudice
showing. Bailey, 2017 IL 121450, ¶ 25. Although input or participation by the State, if any,
prior to the trial court’s denial was improper, “the relief” remains the same whether or not this
error occurred. Bailey, 2017 IL 121450, ¶ 41. As a court of review, and “[i]n the interest of
25
No. 1-21-0043
judicial economy,” we review the motion “ourselves” to determine whether there is “need for
remand.” Bailey, 2017 IL 121450, ¶ 42.
¶ 63 It is also troubling that key parts of the record, such as defendant’s videotaped
statement, are missing, leaving both this court and the trial court to rely on a one-paragraph
summary in an unpublished order that contains confusing ellipses and brackets. The letters
from defendant’s family, which were submitted by him in mitigation at sentencing, are also
not in the appellate record. As a result, almost the entire case that defendant made for mitigation
at sentencing is simply not before us. One advantage of a remand for second-stage proceedings
is the appointment of an attorney in the trial court who can, hopefully, provide a more complete
record before the next step in the process. 6
¶ 64 To determine whether a defendant has made a prima facie showing, we apply a de novo
standard of review. Bailey, 2017 IL 121450, ¶ 13. De novo consideration means that a
reviewing court performs the same analysis that a trial judge would perform in reviewing
defendant’s motion for leave to file his petition. People v. Meneses, 2022 IL App (1st) 191247-
B, ¶ 16.
¶ 65 Under the cause-and-prejudice test, a defendant must show both (1) cause for his or her
failure to raise the claim in an earlier proceeding and (2) prejudice stemming from his or her
failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People v. Pitsonbarger, 205 Ill. 2d
444, 459 (2002)). In the case at bar, we find defendant has established both.
6
There was no index to most of the appellate record, which was also out of chronological order.
Illinois Supreme Court Rule 342 requires the appellant to provide an index to the record that states the
nature of each document and “the names of all witnesses and the pages on which their direct examination,
cross examination, and redirect examination begins.” Ill. S. Ct. R. 342 (eff. Oct. 1, 2019). “Illinois
Supreme Court Rules *** are mandatory, not optional.” Denton v. Univeral Am-Can, Ltd., 2019 IL App
(1st) 181525, ¶ 23.
26
No. 1-21-0043
¶ 66 First, as to cause, defendant could not have argued that his sentence was
disproportionate, in light of the new parole law for under-21-year-olds, prior to its passage into
law in 2019. The law provides that “[a] person under 21 years of age at the time of the
commission of first degree murder who is sentenced on or after June 1, 2019 *** shall be
eligible for parole review by the Prisoner Review Board after serving 20 years or more of his
or her sentence or sentences.” 730 ILCS 5/5-4.5-115(b) (West 2020). Even if he had been
sentenced on or after the effective date, defendant would not have been eligible for earlier
consideration under the new law, since he had not served 20 years or more of his sentence until
sometime in 2020. Thus, defendant has made a prima facie showing as to cause.
¶ 67 Second, as to prejudice, the sentencing transcript establishes that, while the sentencing
court focused on the age of the victim, it did not consider any characteristics or attributes of
under-21-year-olds, such as their lack of maturity or susceptibility to peer pressure. The trial
transcript itself provides evidence of peer pressure and juvenile thinking. The three youthful
offenders wanted to scare an adult into giving them money so they could throw a party. As
Padin, the government witness, testified, a stabbing was never part of their plan. Without the
prodding and pressure by the “girlfriend,” the plan would not have been hatched. It was her
knife; she gave it to him; she wanted the party; and she arranged the visit and ride by Leyva.
When Rivera initially jumped out of the car, both defendant and Padin were trapped in the back
seat as the result of child safety locks, but Rivera opened the door for only Padin. Defendant
had no juvenile record and one adult conviction for the relatively minor offense of defacing
property. His case for mitigation was supported by a number of letters, which neither the court
below that ruled on his motion nor this court has had the opportunity to read.
27
No. 1-21-0043
¶ 68 The sentencing transcript establishes that the sentencing court did not consider
defendant’s potential for rehabilitation. The proportionate penalties clause of our constitution
provides that “[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. This constitutional provision requires the balancing of the twin goals of retribution
and rehabilitation, which requires a careful consideration of all the factors in aggravation and
mitigation, including defendant’s age and mental health. People v. Quintana, 332 Ill. App. 3d
96, 109 (2002). Like the eighth amendment, the proportionate penalties clause of the Illinois
constitution embodies our evolving standard of decency. People v. Miller, 202 Ill. 2d 328, 339
(2002) (“as our society evolves, so too do our concepts of elemental decency and fairness
which shape the ‘moral sense’ of the community” underlying both the proportionate penalties
clause and the eighth amendment). People v. Savage, 2020 IL App (1st) 173135, ¶ 64; People
v. Minniefield, 2020 IL App (1st) 170541, ¶ 35.
¶ 69 However, “[t]he purpose of the proportionate penalties clause is to add a limitation on
penalties beyond those provided by the eighth amendment and to add the objective of restoring
the offender to useful citizenship.” Minniefield, 2020 IL App (1st) 170541, ¶ 35. Thus, the
proportionate penalties clause goes further than the eighth amendment in offering protection
against both oppressive penalties and disproportionality in the law. Minniefield, 2020 IL App
(1st) 170541, ¶ 35; Savage, 2020 IL App (1st) 173135, ¶ 65; see also People v. Clemons, 2012
IL 107821, ¶ 39; People v. Fernandez, 2014 IL App (1st) 120508, ¶ 63 (“the Illinois
Constitution places greater restrictions on criminal sentencing than the eighth amendment’s
prohibition”). Under the broader protection provided by our state’s own clause, defendant has
made a prima facie showing that, as applied to him, denying him some meaningful opportunity
28
No. 1-21-0043
to demonstrate his potential for rehabilitation, while granting that same opportunity to other
similarly situated under-21-year-olds who committed the same exact offense at a later date,
may run afoul of our proportionate penalties clause.
¶ 70 In addition, and as further support for our reversal and remand at this early stage, we
note both (1) the troubling aspects of these proceedings that we discussed above in paragraphs
62 and 63, and (2) the fact that defendant’s petition makes a prima facie showing for an as-
applied challenge under People v. Harris, 2018 IL 121932. As defendant argues, in Harris,
the Illinois Supreme court opened the door for an offender aged 18 and older to seek Miller-
type protections under our state’s proportionate penalties clause, as applied specifically to him.
Harris, 2018 IL 121932, ¶¶ 45-48. Harris permits a defendant to argue that “the evolving
science on juvenile maturity and brain development” (Harris, 2018 IL 121932, ¶ 46) as applied
to “his particular circumstances” (Harris, 2018 IL 121932, ¶ 45) and “the specific facts” of his
case (Harris, 2018 IL 121932, ¶ 45) may state a claim under the proportionate penalties clause
of our own state constitution. In this case. defendant’s initial postconviction petition was filed
in 2005, which is about seven years prior to Miller and 13 years prior to Harris, thereby
establishing cause. As for prejudice, defendant’ pro se pleading alleged that he had “the mental
and maturity level of a child, who suffered from [sic] through parental neglect and physical
abuse as a child.” Thus, we find that defendant’s Harris claim and the troubling aspects of the
claim noted above (supra ¶¶ 62-63) further support our decision that a dismissal at this early
stage was premature.
¶ 71 CONCLUSION
¶ 72 For all the foregoing reasons, we reverse and remand for second-stage proceedings
consistent with this opinion.
29
No. 1-21-0043
¶ 73 Reversed and remanded.
¶ 74 PRESIDING JUSTICE MIKVA, specially concurring:
¶ 75 I concur on the basis that, as outlined in paragraph 70, supra, Mr. Searles’s petition
makes a prima facie showing for an as-applied challenge under People v. Harris, 2018 IL
121932. A number of panels of this court have concluded that Harris provides cause for a
young adult to make a successive postconviction claim that, at the time the crime was
committed, he or she was the equivalent of a juvenile. See, e.g., People v. Horshaw, 2021 IL
App (1st) 182047, ¶ 89, pet. for leave to appeal granted (No. 127787, Oct. 26, 2021) and cases
cited therein. Those same cases have found prejudice where, as in this case, there is some
evidence to support the defendant’s claim that he is the equivalent of a juvenile. Id.¶ 76 We have rejected the argument, made by the State in this case, that language from our
supreme court’s decision in People v. Dorsey, 2021 IL 123010, eliminated such claims. See
People v. Vega, 2022 IL App (1st) 200663-U (rejecting this argument); see also Horshaw,
2021 IL App (1st) 182047, ¶128 (rejecting the argument that Dorsey overruled the court’s prior
holding in People v. Holman, 2017 IL 120655, ¶ 40, that discretionary as well as mandatory
life sentences may run afoul of youth-based constitutional protections).
¶ 77 In my view, Dorsey, which involved an eighth-amendment claim brought by a juvenile,
rather than a young adult like Mr. Searles, has nothing to do with this case. Our supreme court
held in Dorsey that, under Miller v. Alabama, 567 U.S. 460 (2012), and the eighth amendment,
day-for-day credit must be considered in determining what qualifies as a de facto life sentence.
Dorsey, 2021 IL 123010, ¶ 50. The court rejected the defendant’s proportionate penalties claim
based on both forfeiture and res judicata before going on to state: “Moreover, we find
that Miller’s announcement of a new substantive rule under the eighth amendment does not
30
No. 1-21-0043
provide cause for a defendant to raise a claim under the proportionate penalties clause.” 2021
IL 123010, ¶ 74. But the trigger for a claim of the sort advanced here by Mr. Searles was not
the Supreme Court’s decision in Miller. Rather, it was our own supreme court’s statements
years later in People v. Thompson, 2015 IL 118151, ¶ 44 and Harris, 2018 IL 121932, ¶ 48. In
those cases, our supreme court announced for the first time that young adults are “not
necessarily foreclosed” from raising youth-based proportionate penalties claims on an as-
applied basis; this is what opened the door for individuals like Mr. Searles to make such claims.
The dicta in Dorsey really does not address this issue.
¶ 78 JUSTICE MITCHELL, dissenting:
¶ 79 What constitutes “cause” sufficient to excuse a petitioner’s failure to raise a claim in
an earlier post-conviction petition? A petitioner “shows cause by identifying 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). Here the majority finds “cause”
in a 2019 statute providing for parole review for persons who committed first degree murder
while under 21, 730 ILCS 5/5-4.5-115 (b) (West 2020). Accordingly, the majority permits John
Searles’ successive collateral attack on his 75-year sentence to proceed based on a putative
violation of the proportionate penalties clause of the Illinois Constitution. See Ill. Const. 1970
art. I, § 11 (“All penalties shall be determined both according to the seriousness of the offense
and with the objective of restoring the offender to useful citizenship.”). Because I conclude
that Searles has failed to demonstrate cause, I respectfully dissent.
¶ 80 Under our cases, cause may include a subsequent change in law of constitutional
dimension so significant that the substantive theory would have been effectively unavailable
at the earlier date. See, e.g., People v. Davis, 2014 IL 115595, ¶¶ 41-42 (a “new substantive
31
No. 1-21-0043
rule” of constitutional law “constitutes ‘cause’ because it was not available to counsel earlier”);
People v. Pitsonbarger, 205 Ill. 2d 444, 461 (2002) (“[W]here a constitutional claim is so novel
that its legal basis is not reasonably available to counsel, a defendant has cause for failure to
raise the claim ***.”); accord People v. Coleman, 183 Ill. 2d 366, 380 (1998) (“[P]ost-
conviction relief is limited to constitutional deprivations which occurred at the original trial.”).
“Cause-and-prejudice” sets a deliberately high bar that reflects a legislative judgment that
strikes a balance between the need for finality and the need to vindicate constitutional rights.
Davis, 2014 IL 115595, ¶¶ 13-14.
¶ 81 The 2019 parole review statute does not create any new constitutional theory: it merely
provides that “a person under 21 years of age at the time of the commission of first degree
murder *** shall be eligible for parole review by the Prisoner Review Board after serving 20
years or more of his or her sentence or sentences.” 730 ILCS 5/5-4.5-115(b). Significantly, the
2019 parole review statute is prospective only and applies to defendants sentenced “on or after
June 1, 2019.” Id. The General Assembly actually considered a proposed bill that would have
applied retroactively, but the bill enacted is prospective. Compare 100th Gen. Assemb., Senate
Bill 2073, 2017 Sess., with Pub. Act 100-1182 (eff. Jun. 1, 2019). By its terms, the 2019 parole
review statute has no application to Searles.
¶ 82 There was no impediment to Searles raising a proportionate penalties challenge before
now. The proportionate penalties clause was then very much in existence, and Searles’ age was
a known fact. For over a century, Illinois courts have recognized that a defendant’s youth is a
relevant factor in sentencing: “[T]he habits and characters” of minors “are presumably, to a
large extent, as yet unformed and unsettled.” People ex rel. Bradley v. Illinois State
Reformatory, 148 Ill. 413, 423 (1894).
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No. 1-21-0043
¶ 83 Further, Searles actually did raise a proportionate penalties argument in the trial court
at his sentencing:
“[DEFENSE COUNSEL]: [W]hat we have is a young man who made a terrible
mistake basically ending someone’s life; that’s a tragedy. But, the question I guess
becomes is *** there *** hope for rehabilitation. Under the Illinois Constitution, that
is something your Honor has to consider. I think there is.
***
On the other hand, judge, a hundred or 75 or an extended term sentence to a 22-
year-old man may be throwing away the key on him and *** I think there is some
rehabilitative potential.”
¶ 84 On direct appeal, Searles challenged his sentence as excessive and “that the trial court
failed to take into account his age, lack of extensive criminal background, and that he had
completed his G.E.D. in jail.” People v. Searles, 346 Ill. App. 3d 1178 (2004) (Table)
(unpublished order under Supreme Court Rule 23). We rejected these contentions and affirmed
Searles’s sentence. Id. As a consequence, much if not all of Searles’ current challenge appears
barred by res judicata. See People v. Dorsey, 2021 IL 123010, ¶ 70; People v. Adams, 338 Ill.
App. 3d 471, 476 (2003) (all issues decided on direct appeal are res judicata). Therefore, I
would affirm the trial court’s order denying Searles leave to file a successive postconviction
petition. 7
7
A final point: assistant state’s attorneys are always present in criminal courtrooms when court is
in session. See 55 ILCS 5/3-9005 (West 2020). There is nothing “troubling” about that. Ours are public
courtrooms open to everyone—even prosecutors. Further, while the State has no role to play in deciding
whether a petitioner should be granted leave to file a successive petition, People v. Bailey, 2017 IL 121450,
¶¶ 24-25, there is nothing to suggest that it had any input here. The record is completely devoid of any
argument offered by the State. The able trial judge issued an 11-page scholarly order that carefully reviewed
the relevant authorities.
33