People v. Herring

233 N.E.3d 260

2022 IL App (1st) 210355

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

v.Timothy HERRING, Defendant-Appellant

No. 1-21-0355

Appellate Court of Illinois, First District, First Division.

Filed November 28, 2022

Appeal from the Circuit Court of Cook County. No. 11 CR 00197, The Honorable Mary Margaret Brosnahan, Judge, Presiding.

James E. Chadd, Douglas R. Hoff, and Joseph Michael Benak, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Douglas P. Harvath, and Marci Jacobs, Assistant State’s Attorneys, of counsel), for the People.

OPINION

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 This case should be straightforward. The trial court sentenced Timothy Herring to two concurrent terms of mandatory life imprisonment, with a concurrent term of 14 years imprisonment for robbery. Herring argued on direct appeal that his life sentences were unconstitutional because the mandatory nature of the sentences prevented the trial court from considering his age (19 years old) at the time of the offense. People v. Herring, 2018 IL App (1st) 152067, ¶ 103, 428 Ill. Dec. 537, 123 N.E.3d 1. We found ourselves "unable to consider" his claim under the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because the record was insufficiently developed to determine whether constitutional protections regularly applied to juvenile defendants at sentencing should also apply to Herring as a young adult. Herring, 2018 IL App (1st) 152067, ¶ 104. We cited our supreme court’s decision in People v. Harris, 2018 IL 121932, ¶¶ 45, 48, 427 Ill.Dec. 833, 120 N.E.3d 900, which directed young adult defendants raising as-applied constitutional challenges to their sentences under the proportionate penalties clause to "sufficiently develop[ ]" the record in postconviction proceedings. Herring, 2018 IL App (1st) 152067, ¶ 104, 428 Ill.Dec. 537, 123 N.E.3d 1.

¶ 2 Herring took our suggestion and filed a petition for postconviction relief. He argued that his mandatory life sentence violates the proportionate penalties clause because he was functionally a juvenile at the time of the offense. He alleged he "suffer[ed] from impulse control disorders *** as a direct result of his under-developed mind, immaturity, diminished [mental] state[, and] capacity." In addition, he could not "appreciate the risks, consequences, *** [and] the circumstances associated with these serious charges." He then linked these facts to studies explaining the development of the young adult mind through age 25. The trial court summarily dismissed the petition as frivolous and without merit, having failed to satisfy the extremely low threshold of alleging the gist of a constitutional claim.

[1] ¶ 3 The relative simplicity of the facts is confounded, however. The law is in disarray on the question of the level of corroboration a young adult petitioner needs to make for arguably showing that the principles of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), should apply to them. For example, in People v. Zumot, 2021 IL App (1st) 191743, ¶ 31, 458 Ill.Dec. 859, 197 N.E.3d 272, the defendant alleged facts relating to his actions in prison showing rehabilitation. The court found those allegations sufficient, even though the defendant did not attach anything to his petition related to his mental development at the time of the offense because they "can be corroborated, are objective in nature, and bear directly on the Supreme Court’s observation[s] in Miller." Id.; see also People v. Ruiz, 2020 IL App (1st) 163145, ¶ 56, 444 Ill.Dec. 754, 165 N.E.3d 36 (finding sufficient allegation that young adult defendant was " ‘largely unsettled in [his] characters and habits and this must be taken into consideration’ " when linked with citations to articles and studies about young adult brain development). While we know that "bare assertions that [a defendant’s] age and background were not considered by the trial court" are insufficient (People v. Howard, 2021 IL App (2d) 190695, ¶ 46, 453 Ill.Dec. 366, 187 N.E.3d 819), some courts have gone well beyond that threshold and wanted documents supporting the defendant’s factual claims about their youth and attendant circumstances. See People v. Carrion, 2020 IL App (1st) 171001, ¶ 36, 446 Ill.Dec. 538, 170 N.E.3d 1064 (discussing People v. Minniefield, 2020 IL App (1st) 170541, 440 Ill.Dec. 910, 155 N.E.3d 1166, where petitioner provided documentation).

¶ 4 Recently, the Illinois Supreme Court has decided to wade into this area again. We are aware of three cases involving young adult defendants pending before the court. But all of them raise procedural or factual issues distinct from Herring’s case or arise in procedural postures that make addressing the core constitutional question more difficult. One case involves an 18-year-old defendant’s unique challenge to the constitutionality of a mandatory firearm enhancement that did not result in a life sentence or a de facto life sentence. See People v. Hilliard, 2021 IL App (1st) 200112, 457 Ill.Dec. 439, 195 N.E.3d 353, appeal allowed, No. 128186, 456 Ill.Dec. 67, 193 N.E.3d 35 (May 25, 2022). The second involves the more burdensome cause-and-prejudice test for successive postconviction petitions. See People v. Moore, 2020 IL App (4th) 190528, 446 Ill. Dec. 378, 170 N.E.3d 204, appeal allowed, No. 126461, 451 Ill.Dec. 433, 183 N.E.3d 890 (Nov. 24, 2021). The third also involves the complicating factor arising from a successive postconviction petition, complicated by the young adult defendant’s additional intellectual disability (fetal alcohol syndrome). See People v. Clark, 2021 IL App (3d) 180610, 448 Ill.Dec. 459, 176 N.E.3d 1256, appeal allowed, No. 127273, 447 Ill. Dec. 706, 175 N.E.3d 74 (Sept. 29, 2021). Resolving these cases will be helpful because a defendant who meets the pleading standards for a successive postconviction petition necessarily satisfies the lower pleading bar for an initial petition. None of these decisions, however, will set the pleading baseline for a young adult defendant raising a proportionate penalties clause claim in their initial postconviction petition.

¶ 5 Regardless of the disparate opinions that support reversal and those that support affirmance, we look to the two questions we ask at the first stage of postconviction review: (i) did Herring raise "an indisputably meritless legal theory," meaning one that is "completely contradicted by the record," and (ii) did Herring base his theory on "fanciful factual allegations," meaning allegations that are "fantastic or delusional"? (Emphasis added.) People v. Hodges, 234 Ill. 2d 1, 16-17, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). While appellate court decisions disagree on what constitutes a legally meritless first stage petition for this type of claim and on the amount of detail that renders factual allegations "fanciful," we find it impossible to say Herring has not made at least an arguable claim.

¶ 6 Until our supreme court intervenes to settle the pleading standard for claims like Herring’s, the just course is to allow Herring’s claim to proceed and be tested at the later stages of the postconviction process. There, he will have to prove the allegations he makes to earn relief. We, therefore, reverse and remand for further proceedings.

¶ 7 Background

¶ 8 We recounted the facts in detail in our opinion disposing of Herring’s direct appeal. Herring, 2018 IL App (1st) 152067, ¶¶ 1-53, 428 Ill.Dec. 537, 123 N.E.3d 1. On November 26, 2010, Stephen Peters discovered that someone had broken into his prized Ford Mustang stored in his mother's garage. He called the police and waited outside for them to arrive. Chicago police officer Michael Flisk responded. Herring returned to the scene and shot both Peters and Flisk once in the head. Peters’s mother heard the gunshots and called the police. While she was on the phone with 911, Herring returned and again shot Peters and Flisk once in the head. Peter’s mother saw Herring pushing her two garbage carts away from her garage. Police officers recovered the garbage carts in a backyard down the alley from her home. Inside were speakers and other electronics taken from the Mustang. A jury convicted Herring of tWo counts of first degree murder and one count of robbery.

¶ 9 In preparation for sentencing, the trial court ordered a presentence investigation report. It stated that Herring was 19 and 11 months old at the time of the murders. Also, Herring had no adjudications of juvenile delinquency but was convicted of armed robbery in March 2008 and sentenced to six years in prison. The remaining details of the report are sparse because Herring refused to be interviewed.

¶ 10 At the sentencing hearing, the State called several witnesses in aggravation. An investigator with the Cook County State’s Attorney’s office testified that he interviewed one of Herring’s high school teachers. When Herring was 15, the teacher asked him to remove his hat in class, and he struck her across the face, breaking her glasses. In addition, a Chicago Police Department sergeant testified about an armed robbery Herring committed in 2007 at age 16. Herring approached liquor store employees at around 2 a.m. while wearing a mask and carrying a shotgun. He pointed a shotgun at one of the employees and demanded money. The employee screamed and dropped the money, after which Herring shot his gun into the air and left with about $7000.

¶ 11 A Chicago Police Department detective testified regarding a 2010 incident where Herring attempted to run over two people before shooting one of them. Herring swerved back and forth and circled, trying to run down the victims. Then he fired a handgun at least seven times, striking one of the men in the back. This incident occurred while Herring was on parole, for the 2007 armed robbery. As a result,...