People v. French

2022 IL App (1st) 220122

218 N.E.3d 369

467 Ill.Dec. 34

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

v.Marcellus FRENCH, Defendant-Appellant.

No. 1-22-0122

Appellate Court of Illinois, First District, Fourth Division.

Opinion Filed December 15, 2022

James E. Chadd, Douglas R. Hoff, and Jessica D. Ware, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Brian K. Hodes, and David H. Iskowich, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Defendant Marcellus French appeals from the circuit court's order denying him leave to file a successive petition for relief under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2018)). On appeal, defendant argues that he adequately alleged both cause and prejudice for his failure to raise his proportionate penalties claim in his initial postconviction petition. Defendant was 20 years old in August 2010 when he committed first degree murder and aggravated battery with a firearm. Defendant was sentenced in 2014, filed his initial postconviction petition in 2019, and filed the motion for leave to file the successive postconviction petition at issue in this case in 2021. Defendant's proportionate penalties claim stems from caselaw interpreting the eighth amendment to the United States Constitution as applied to juveniles and that caselaw's extension to young adult offenders via the proportionate penalties clause of the Illinois Constitution. However, our supreme court in People v. Dorsey , 2021 IL 123010, 451 Ill.Dec. 258, 183 N.E.3d 715, foreclosed defendant's claim because it could have been raised in defendant's initial petition. Therefore, we affirm the judgment of the circuit court.¹

¶ 2 I. BACKGROUND

¶ 3 After a jury trial, defendant was found guilty of the first degree murder of Roger Kizer and aggravated battery with a firearm of Estavion Thompson. Codefendant Bodey Cook was also found guilty of first degree murder and aggravated battery with a firearm. The jury found that defendant personally discharged a firearm that caused death. Defendant was sentenced to consecutive terms of 55 years’ imprisonment for first degree murder and 15 years’ imprisonment for aggravated battery with a firearm.

¶ 4 We set forth the facts in defendant's direct appeal ( People v. French , 2017 IL App (1st) 141815, 411 Ill.Dec. 208, 72 N.E.3d 1214 ), and we recite them here to the extent necessary to our disposition. The State's evidence showed that at about 11 p.m. on August 19, 2010, the victims, Kizer and Thompson, were outside near 7450 South Kenwood Avenue in Chicago. Kizer's family lived on that block. Kizer and Thompson were either sitting on the back of a friend's parked car or standing by the car in the street. Several other people were also outside.

¶ 5 A vehicle passed the group multiple times. Bodey Cook was driving the vehicle. On the third pass, defendant leaned out of the passenger-side window and fired multiple shots at the group. Thompson suffered gunshot wounds to each of his legs, his chest, and his stomach. Kizer died at the scene from a gunshot wound to his chest. Defendant was 20 years old at the time of the shooting. Defendant was sentenced on May 29, 2014. Defendant, acting pro se , did not file a motion to reconsider his sentence.

¶ 6 On direct appeal, defendant argued that (1) the trial court abused its discretion by admitting hearsay and allowing the State to refer to it as substantive evidence during closing argument, which constituted plain error because the evidence was closely balanced, (2) trial counsel rendered ineffective assistance by failing to object to certain statements by witnesses on the basis of lack of foundation, (3) the trial court's preliminary inquiry into defendant's pro se posttrial claims of ineffective assistance of counsel was an adversarial proceeding and violated due process, and (4) the trial court erred when it failed to appoint new counsel and hold a hearing on defendant's claims of ineffective trial counsel. We affirmed. Id. ¶ 89.

¶ 7 On December 20, 2019, defendant filed his initial postconviction petition. Defendant's petition alleged that, inter alia , (1) appellate counsel was ineffective for failing to establish trial counsel's ineffectiveness where trial counsel failed to thoroughly investigate defendant's cellular phone records, which provided evidence concerning the location of defendant's phone during the crime, (2) trial counsel was ineffective for failing to seek the testimony of an eyewitness expert and an expert witness on cellular phone records, (3) defendant was denied a fair and impartial direct appeal proceeding where the circuit court did not include defendant's exhibits in the appellate record, (4) appellate counsel failed to present the ineffective assistance of trial counsel claim regarding the alibi witnesses with supporting facts, and (5) trial counsel was ineffective for failing to show that police authorities offered leniency to witnesses.

¶ 8 On February 5, 2020, the trial court dismissed defendant's postconviction petition, finding that the issues raised were frivolous and patently without merit. We affirmed the dismissal of defendant's initial postconviction petition in an order pursuant to Illinois Supreme Court Rule 23(b) (eff. Jan. 1, 2021) on April 28, 2022. People v. French , 2022 IL App (1st) 200805-U, ¶ 68, 2022 WL 1262648.

¶ 9 On October 13, 2021, defendant filed the motion for leave to file a successive postconviction petition at issue in this case. Defendant alleged that his 70-year sentence was a de facto life sentence imposed on him as a 20-year-old in violation of the proportionate penalties clause of the Illinois Constitution. As to cause, defendant stated that the sentencing claim was "not reasonably available to him before." Defendant referenced a report from Dr. James Garbarino detailing defendant's "developmental pathway from childhood to adulthood." Defendant received the report on June 11, 2021, which defendant alleged was the first point he could have reasonably brought the proportionate penalties claim. For prejudice, defendant alleged that his de facto life sentence was unconstitutional as applied to him under the proportionate penalties clause.

¶ 10 The trial court denied defendant's motion on December 16, 2021. The trial court concluded that defendant had waived his proportionate penalties claim by failing to raise it in either his direct appeal or initial postconviction petition. On the merits, the trial court stated that defendant's 55-year sentence for first degree murder did not "shock the moral sense of the community" because defendant was not a juvenile when he "directly participated" in the murder.

¶ 11 Defendant's notice of appeal was file-stamped January 19, 2022. The envelope accompanying the notice of appeal shows a date of January 12, 2022. This court granted defendant's motion for leave to file a late notice of appeal on June 6, 2022.

¶ 12 II. ANALYSIS

¶ 13 Defendant's sole argument is that he adequately alleged cause and prejudice such that the trial court erred in denying his motion for leave to file a successive postconviction petition. Defendant argues that he established cause "because his claim is based on recent, substantive developments in the law as well as newly-obtained factual support for the claim which could not have been brought in his first post-conviction petition." Defendant argues that he made a prima facie showing of prejudice by pleading three facts: "1) he is serving a natural or de facto life sentence[;] 2) scientific evidence supported his claim that his brain acted like that of a juvenile's brain at the time of the offense; and 3) the sentencing court did not adequately consider his youthful characteristics as required by Miller and its progeny."

¶ 14 The State responds that defendant failed to establish cause because the caselaw defendant relies on was available when he filed his initial petition in 2019. The State further points to the Illinois Supreme Court's decision in Dorsey , 2021 IL 123010, 451 Ill.Dec. 258, 183 N.E.3d 715, which the State argues forecloses defendant's cause argument. The State also notes that defendant had years to obtain a similar expert report for inclusion in his first petition. As to prejudice, the State primarily relies on the seriousness of the offense, the trial court's findings about defendant's rehabilitative prospects, the fact that all of the mitigating evidence regarding defendant's youth and upbringing was before the trial court, and that a portion of Dr. Garbarino's report is based on facts contradicted by the record.

¶ 15 The Act provides a three-stage mechanism by which a criminal defendant may assert that his conviction resulted from the substantial denial of a constitutional right. People v. Myles , 2020 IL App (1st) 171964, ¶ 17, 448 Ill.Dec. 87, 175 N.E.3d 756 ; People v. Delton , 227 Ill. 2d 247, 253, 317 Ill.Dec. 636, 882 N.E.2d 516 (2008). "[T]he Act contemplates the filing of only one post-conviction petition." People v. Pitsonbarger , 205 Ill. 2d 444, 456, 275 Ill.Dec. 838, 793 N.E.2d 609 (2002). "Only when fundamental fairness so requires will the strict application of this statutory bar be relaxed." Id. at 458, 275 Ill.Dec. 838, 793 N.E.2d 609.

¶ 16 "[T]he cause-and-prejudice test is the analytical tool that is to be used to determine whether fundamental fairness requires that an exception be made to section 122-3 so that a claim raised in a successive petition may be considered on its merits." Id. at 459, 275 Ill.Dec. 838, 793 N.E.2d 609. The cause-and-prejudice test has been codified in the Act. Section 122-1(f) of the Act provides: "Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice...