People v. Brown

229 N.E.3d 484

2023 IL App (2d) 220334

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Amittie G. BROWN, Defendant-Appellant.

No. 2-22-0334

Appellate Court of Illinois, Second District.

Filed July 24, 2023

Appeal from the Circuit Court of Lake County. No. 07-CF-3790, Honorable D. Christopher Lombardo, Judge, Presiding.

James E. Chadd, Thomas A. Lilien, and Andrew Thomas Moore, of State Appellate Defender’s Office, of Elgin, for appellant.

Eric F. Rinehart, State’s Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Ivan O. Taylor Jr., of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

PRESIDING JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Amittie G. Brown, has filed four appeals in this court: (1) a direct appeal (People v. Brown, 2014 IL App (2d) 120849-U, 2014 WL 707153) (Brown I), (2) an appeal from the denial of a pleading seeking to file a postconviction petition¹ (Brown II) (3) an appeal from an order granting the State’s motion to dismiss as untimely defendant’s postconviction petition at the second stage of postconviction proceedings (People v. Brown, 2022 IL App (2d) 200721-U, 2022 WL 884991) (Brown III), and (4) this current appeal from an order denying defendant leave to file a successive postconviction petition. Defendant now argues for the first time that the trial court’s oral ruling in Brown III, granting the State’s motion to dismiss his initial petition, was not a final order. Accordingly, defendant argues, we must vacate the trial court’s order denying him leave to file his successive postconviction petition and remand this cause for the trial court to file its written ruling granting the State’s motion to dismiss his initial petition in Brown III. We reject defendant’s argument and affirm.

¶ 2 I. BACKGROUND

¶ 3 The facts of this case are well known to the parties and this court. Accordingly, we recite here only those facts necessary to resolve the issue raised.

¶ 4 In October 2007, defendant was charged by indictment with 15 counts of first degree murder. All the counts involved the same 66-year-old victim. Defendant was 20 years old when the murder occurred.

¶ 5 Over four years after defendant was charged, a jury found defendant guilty of first degree murder (720 ILCS 5/9-1 (a)(1) (West 2006)). The jury also found that the victim was over 60 years old and that the victim’s death was the result of exceptionally brutal and heinous behavior indicative of wanton cruelty (id. § 9-1(b)(16)). Defendant was sentenced to 55 years’ imprisonment. He appealed, and we affirmed his conviction and sentence (Brown I).

¶ 6 Well over one year after Brown I, defendant filed a "Petition for Leave to File a Late Post Conviction Petition." No postconviction petition was attached to this pleading. The trial court denied defendant’s pleading, and defendant moved the court to reconsider. The court denied that motion, noting that, without a postconviction petition, it had nothing before it to consider. Defendant moved to file a late notice of appeal in this court, and we granted him leave to do so. On defendant’s motion, that appeal was dismissed (Brown II).

¶ 7 In April 2016, defendant petitioned for postconviction relief. Recognizing that his petition was untimely filed, he argued that the late filing was due to his diminished mental capacity, not his culpable negligence. The trial court advanced defendant’s petition to the second stage of postconviction proceedings and appointed counsel to represent him.

¶ 8 In October 2019, counsel filed a supplemental petition and a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). Counsel argued, among other things, that

"[defendant’s] 55-year sentence [was] an unconstitutional de facto life sentence in violation of the cruel and unusual punishment clause of the 8th Amendment of the Constitution of the United States [(U.S. Const., amend. VIII)] and the proportionate penalties clause of Article [I] of Section [11] of the Constitution of the State of Illinois [(Ill. Const. 1970, art. I, § 11)]."

The State moved to dismiss, arguing, among other things, that defendant’s petition was untimely.

¶ 9 At a hearing held on November 23, 2020, where defendant was present via video, the trial court granted the State’s motion to dismiss. In doing so, the court asserted that it "w[ould] be filing a written order detailing its ruling including all of the cases the [c]ourt relied upon and its reasoning." The court continued that "[w]ith regards to the State’s motion to dismiss surrounding the issue of timeliness, it [was] undisputed that the post[-]conviction petition was late." The court found that "[t]he real issue *** with regards to timeliness [was] the culpable negligence analysis." On that issue, the court determined that "the delay [was] not excused due to a lack of culpable negligence on the part of the [d]efendant." However, the court noted, "one of the issues raised was regarding the sentencing in an alleged 8th Amendment violation due to [d]efendant’s age and based upon the Miller [v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)] factors." The court found such an argument unavailing, as defendant was 20 when he committed the murder and the Miller line of cases created the "bright-line rule" that the eighth-amendment protections announced in Miller applied only to offenders under 18. Thus, the court determined that "even if th[e] claim were to survive the timeline [challenge,] *** it d[id] not survive the analysis set out in the case law in Miller [and] its progeny here in Illinois under the 8th Amendment to go beyond the [s]econd [s]tage." The court continued that, "[a]gain, [it] ha[d] [a] lot more detail with regards to interpretation and its reasoning in the [written] order" and that "[t]he written order w[ould] be served on all the parties including service to the [defendant."

¶ 10 The court then advised defendant that he had the right to appeal the court’s decision. The court continued:

"And to preserve the right of appeal that you must file a notice of appeal here in the trial court with the Clerk of the Circuit [Court] within 30 days from the date that the order dismissing the post-conviction petition was entered, and I want to make sure you understand those are your rights to appeal.

I think I will have that order on file by tomorrow. *** But just for the final touches [the written order] will either be filed later today or tomorrow, and you have 30 days to file a notice of appeal."

¶ 11 Immediately thereafter, the following discussion ensued:

"MR. FACKLAM [(ASSISTANT PUBLIC DEFENDER)]: Judge, would you allow us to do that now? Obviously we know.

THE COURT: I will.

MR. FACKLAM: To be supplemented with the written order tomorrow, but I’d spoke[n] to [defendant] previously and we discussed if this was denied, the State’s motion was granted, he would want to appeal.

Just due to the nature [of things] I don’t think it is necessary to file a motion to reconsider so we would just ask the notice of appeal be filed today. We ask for [the] Appellate Public Defender obviously to be appointed and for the transcript of the proceedings [to] be prepared.

THE COURT: Absolutely.

***

Yes, I will—the [c]ourt’s ruling—this is only a matter of the [written] order just contains the case law in a much more detailed version of what the [c]ourt’s ruling is today so I will absolutely give him leave to file his notice of appeal today."

¶ 12 The minute order reflected that "no order [was] entered" and "clerk to prepare, file notice of appeal." The circuit court clerk filed a notice of appeal on defendant’s behalf that same day. However, no written order was ever filed granting the State’s motion to dismiss.

¶ 13 Defendant appealed from the oral ruling granting the State’s motion to dismiss, citing Illinois Supreme Court Rule 651(a) (eff. July 1, 2017) as the jurisdictional basis for his appeal. He also noted that "[a]lthough the circuit court referenced a written order that it had prepared granting the State’s motion to dismiss, no such order [was] contained in the common law record," and the Lake County Circuit Clerk’s Office confirmed that no written order had been filed with that office. Defendant argued on appeal that the delay in filing his petition was not due to his own culpable negligence. We disagreed and affirmed the dismissal (Brown III).

¶ 14 Two months after Brawn III, defendant moved for leave to file a successive postconviction petition. Defendant argued that a

"de facto life sentence of 55-years in prison imposed by the trial court without any consideration of [defendant’s] youth or rehabilitative potential for an offense that he was charged with when he was only 20-years old[ ] [was] unconstitutional under the Proportionate Penalties Clause of the Illinois Constitution[ ] as[ ]applied to him."

¶ 15 The trial court denied defendant leave to file a successive postconviction petition. In doing so, the court recognized that defendant "restate[d] just one position previously argued and dismissed, that his sentence of 55 years is unconstitutional and violative of the Proportionate Penalties Clause of the Illinois Constitution, relying again on Miller ***, People v. House, 2019 IL App (1st) 110580[-B, 436 Ill.Dec. 355, 142 N.E.3d 756] and People v. Buffer, 2019 IL 122327 [434 Ill.Dec. 691, 137 N.E.3d 763]." The court found that "[defendant’s] youth was known to all concerned, was raised at the sentencing hearing before the trial court, [and] was not raised in his direct appeal but raised in his initial postconviction petition[,] which was dismissed on grounds of untimeliness." Moreover, the court observed that "[defendant] was not under the age of 18 at the time of the offense, did not receive a mandatory or discretionary life sentence, but was sentenced within the statutory range of sentences possible and his request to apply his circumstances nonetheless is...