People v. Nichols

2021 IL App (2d) 190659

184 N.E.3d 432

451 Ill.Dec. 845

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

v.Rickie T. NICHOLS, Defendant-Appellant.

No. 2-19-0659

Appellate Court of Illinois, Second District.

Opinion filed June 10, 2021

James E. Chadd, Douglas R. Hoff, and Robert N. Markfield, of State Appellate Defender's Office, of Chicago, for appellant.

Eric F. Rinehart, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Adam Trejo, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Defendant, Rickie T. Nichols, appeals the denial of his motion for leave to file a successive postconviction petition. He claims that we should relax the bar of res judicata because two opinions from other Illinois appellate districts changed the law that this court relied on in denying defendant relief in a prior appeal. We determine that the bar of res judicata cannot be relaxed here, as the change in the law did not come from a higher court. Accordingly, we affirm.

¶ 2 I. BACKGROUND

¶ 3 This case was previously before us twice. See People v. Nichols , 2012 IL App (2d) 100028, 358 Ill.Dec. 168, 964 N.E.2d 1190 ( Nichols I ); People v. Nichols , 2018 IL App (2d) 150779-U, 2018 WL 1628541 ( Nichols II ). We repeat only the background necessary to resolve the issues in this current appeal.

¶ 4 On the evening of September 9, 2008, defendant, who was 16 years old, was visiting with his friend, Stephen Knighten. While armed with an air pistol, defendant and Knighten walked around their neighborhood, looking for someone to rob. Defendant and Knighten soon encountered K.H. Defendant pointed the pistol at K.H., and he and Knighten forced K.H. to accompany them behind some bushes. Defendant forced K.H. to fellate him while he pointed the gun at her. Afterward, Knighten forced K.H. to fellate him.

¶ 5 Based on these events, defendant was charged with, among other things, two counts of aggravated criminal sexual assault ( 720 ILCS 5/12-14(a)(1) (West 2008)). One of these counts charged defendant for Knighten's actions under an accountability theory. See id. § 5-2. Given the nature of the offenses, the automatic transfer statute (see 705 ILCS 405/5-130 (West 2008) ) mandated that defendant be tried as an adult.

¶ 6 Following a jury trial, defendant was found guilty of both counts of aggravated criminal sexual assault, which are Class X felonies ( 720 ILCS 5/12-14(d)(1) (West 2008)). The court sentenced him to an aggregate term of 32 years’ imprisonment, which was the minimum sentence that the trial court could impose.¹

¶ 7 Defendant appealed, arguing that section 5-8-4(a)(ii) of the Unified Code of Corrections (Code of Corrections) ( 730 ILCS 5/5-8-4(a)(ii) (West 2008)), which is the mandatory consecutive sentencing law, violated his due process and proportionate penalties rights under the Illinois Constitution ( Ill. Const. 1970, art. I, §§ 2, 11 ). Nichols I , 2012 IL App (2d) 100028, ¶ 73, 358 Ill.Dec. 168, 964 N.E.2d 1190. Specifically, defendant claimed that imposing mandatory consecutive sentences under section 5-8-4(a)(ii) resulted in a sentence that was "disproportionate when considered in light of his age, his criminal history, and the seriousness of the offenses." Id. ¶ 75. We determined that no constitutional violation arose and affirmed the sentences. Id. ¶¶ 79, 86.

¶ 8 Thereafter, defendant petitioned pro se for postconviction relief. Subsequently, (1) the petition survived summary dismissal, (2) counsel was appointed, (3) counsel filed an amended petition, and (4) the court held an evidentiary hearing. None of defendant's issues raised in these proceedings concerned his 32-year aggregate sentence. The trial court denied the petition, and defendant appealed.

¶ 9 On appeal, defendant challenged his 32-year aggregate sentence, citing the eighth amendment of the United States Constitution ( U.S. Const., amend. VIII ), which is made applicable to the states through the due process clause ( U.S. Const., amend. XIV ), and the proportionate penalties clause of the Illinois Constitution ( Ill. Const. 1970, art. I, § 11 ). Nichols II , 2018 IL App (2d) 150779-U, ¶ 9. He argued that section 5-8-4(a)(ii) of the Code of Corrections, the mandatory consecutive sentencing law, and section 12-14(d)(1) of the Criminal Code of 1961 (Criminal Code) ( 720 ILCS 5/12-14(d)(1) (West 2008)), which required a 10-year enhancement based on a defendant's use of what was or appeared to be a dangerous weapon, were unconstitutional as applied to him because they prevented the trial court from considering mitigating circumstances associated with his youth. Nichols II , 2018 IL App (2d) 150779-U, ¶ 9. Defendant's eighth amendment argument relied on Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and our supreme court's interpretation of Miller . We rejected both constitutional claims. Nichols II , 2018 IL App (2d) 150779-U, ¶¶ 17, 20. We noted that our decision in Nichols I did not preclude us from addressing defendant's constitutional challenges, because, among other things, Miller was decided after Nichols I . See id. ¶¶ 11, 15-16, 19. We then determined that defendant's eighth amendment argument was inapposite, as Miller and the other authorities defendant relied on governed mandatory or discretionary life sentences and not defendant's 32-year aggregate sentence. See id. ¶ 17 ("The court's point [in People v. Holman , 2017 IL 120655, 418 Ill.Dec. 889, 91 N.E.3d 849,] was that discretionary life sentences, just as much as mandatory life sentences, fall within the concerns expressed in Miller . The court [in Holman ] was not suggesting that Miller applies to sentences other than life sentences."). We went on to hold that, "because defendant's eighth-amendment claim based on Miller fails, so does his claim under the proportionate-penalties clause," as that clause is coextensive with the eighth amendment. Id. ¶ 20.

¶ 10 After we affirmed the trial court's denial of defendant's first postconviction petition, defendant moved to file a successive postconviction petition. In the motion, defendant argued, among other things, that the mandatory dangerous weapon enhancement in section 12-14(d)(1) of the Criminal Code, as applied to him, violated the proportionate penalties clause. Defendant recognized that he raised this issue in Nichols II . However, defendant asserted that the decisions reached in People v. Aikens , 2016 IL App (1st) 133578, 407 Ill.Dec. 299, 63 N.E.3d 223, and People v. Barnes , 2018 IL App (5th) 140378, 425 Ill.Dec. 480, 114 N.E.3d 469, warranted reexamining the issue. Moreover, in making his arguments, defendant mentioned the cause-and-prejudice test, which must be satisfied before a defendant may file a successive postconviction petition, but defendant did not constructively argue how that test applies here.

¶ 11 The trial court denied defendant's motion for leave to file a successive postconviction petition.

¶ 12 This timely appeal followed.

¶ 13 II. ANALYSIS

¶ 14 At issue in this appeal is whether the denial of defendant's motion for leave to file a successive postconviction petition was proper. We review that issue de novo. People v. Edgeston , 396 Ill. App. 3d 514, 518, 336 Ill.Dec. 258, 920 N.E.2d 467 (2009).

¶ 15 The Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2018)) allows a defendant to collaterally attack a prior conviction and sentence where there was a substantial violation of the defendant's state or federal constitutional rights. People v. Gosier , 205 Ill. 2d 198, 202-03, 275 Ill.Dec. 493, 792 N.E.2d 1266 (2001). Although the Act contemplates a defendant filing only one postconviction petition, successive postconviction petitions may be filed if the defendant first obtains leave of court. People v. LaPointe , 227 Ill. 2d 39, 42, 316 Ill.Dec. 208, 879 N.E.2d 275 (2007) ; see 725 ILCS 5/122-1(f) (West 2018). All issues decided on direct appeal or in an original postconviction petition are barred by the doctrine of res judicata.

People v. Blair , 215 Ill. 2d 427, 443, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005) ; see 725 ILCS 5/122-3 (West 2018).

¶ 16 Res judicata "results ‘from the practical necessity that there be an end to litigation and that controversies once decided on their merits *** remain in repose.’ " People v. Kines , 2015 IL App (2d) 140518, ¶ 20, 394 Ill.Dec. 949, 37 N.E.3d 428 (quoting Hughey v. Industrial Comm'n , 76 Ill. 2d 577, 582, 31 Ill.Dec. 787, 394 N.E.2d 1164 (1979) ). Res judicata applies when (1) a court of competent jurisdiction renders a final judgment on the merits (2) that is between the same parties and (3) involves the same cause of action. Id. ¶ 21. Whether a claim is barred by res judicata is also a question of law that we review de novo. Id. ¶ 20.

¶ 17 Defendant forthrightly admits that the issue he raises now was unsuccessfully raised in his initial postconviction petition. Thus, defendant agrees that res judicata appears to bar his claim now. Nevertheless, defendant argues that the bar of res judicata should be relaxed here, given "changes in caselaw and evolving standards of decency."

¶ 18 Res judicata is an equitable doctrine. Id. ¶ 21. "In other words, the question is not solely whether the doctrine of res judicata applies; we must also ask whether it should be applied." (Emphases in original.) Id. The bar of res judicata may be relaxed, and a defendant may file a successive postconviction petition raising the same issue he raised previously, when fundamental fairness so requires. People v. Lee , 207 Ill. 2d 1, 5, 277 Ill.Dec. 655, 796 N.E.2d 1021 (2003). In deciding whether fundamental fairness requires the relaxation of the res judicata doctrine, we must determine whether the defendant has satisfied the cause-and-prejudice test. People v. Tenner , 206 Ill. 2d 381, 392, 276 Ill.Dec. 343, 794 N.E.2d 238 (2002) ; see 725 ILCS 5/122-1(f...