People v. Walsh

2022 IL App (1st) 210786

219 N.E.3d 529

467 Ill.Dec. 519

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

v.Anthony WALSH, Defendant-Appellant.

No. 1-21-0786

Appellate Court of Illinois, First District, Fourth Division.

Filed June 30, 2022

James E. Chadd, Douglas R. Hoff, and Ashlee Johnson, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Gina DiVito, and Gina Savini, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 The circuit court denied defendant Anthony Walsh's motion for leave to file a successive petition for relief pursuant to the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2018)). On appeal, defendant contends that he satisfied the cause and prejudice test on his claim that his 35-year sentence violates the Illinois proportionate penalties clause.

¶ 2 For the reasons that follow, we affirm the judgment of the circuit court.¹

¶ 3 I. BACKGROUND

¶ 4 After a bench trial, defendant was found guilty of the first degree murder of Willie Lomax. Defendant was sentenced to 35 years’ imprisonment. We set forth the facts in defendant's direct appeal ( People v. Walsh , 332 Ill.App.3d 1139, 296 Ill.Dec. 642, 835 N.E.2d 995 (2002) (unpublished order under Illinois Supreme Court Rule 23 )), and we recite them here to the extent necessary for our disposition.

¶ 5 On January 23, 1999, defendant, then 18 years old, was driving a vehicle in Chicago with passengers Vincent Fox, Jessica Cosgrove, and Melissa Quinn. Defendant and Fox were members of the "Two-Six" street gang. As the group drove west on 79th Street, they noticed three black males walking down the street. The three individuals were Terrell Montgomery, Willie Griffin, and Lomax.

¶ 6 Defendant and Fox said, "There goes the Blackstones. There goes the Vice Lords." Fox then flashed gang signs out the back window and screamed "Blackstone Killer." Defendant then drove the group to the "Two-Six" gang leader Red's house. There, the group ran into another "Two-Six" gang member, 14-year-old Chris Kronenberger. A discussion ensued among defendant, Fox, and Kronenberger about the three individuals the group had earlier seen walking on 79th Street. Defendant and Fox directed Kronenberger to get a pistol.

¶ 7 The group, now including Kronenberger, got back into the car, and defendant drove them back to 79th Street. Defendant and Fox told Kronenberger that because he was only 14, if he got caught, he would not be tried as an adult and would only be incarcerated until he was 21. The group then passed the three individuals again near 79th Street and Homan Avenue.

¶ 8 Defendant pulled the car into a nearby alley. Kronenberger got out of the car, ran out of the alley, and shot the pistol a single time, taking Lomax's life. Kronenberger then ran back to the waiting car, and defendant drove the group away. In the next few days, defendant and Fox spoke with Quinn and Cosgrove to construct an exculpatory version of events. The trial court found defendant guilty of the first degree murder of Lomax.

¶ 9 The case then proceeded to sentencing, where defendant faced a sentence of between 20 and 60 years’ imprisonment. Defendant presented three witnesses in mitigation. Frank Ciaccia Jr. testified that he was a commodities trader and that defendant had worked for him off and on for a couple of years. Ciaccia had never known defendant to commit violent crimes or use drugs. Defendant comported himself with the "utmost respect," was "very responsible for the position he had," and would always "dress properly." Ciaccia concluded that if defendant was given the opportunity, he "could excel above and beyond" and that he could "make something very good of himself."

¶ 10 The other two witnesses were educators in the Department of Corrections. Nicholas Palumbo taught defendant vocational training, Monday through Friday, for four-and-a-half hours per day. Defendant had never exhibited any acts of violence and showed a lot of potential in carpentry. Leroy Walker testified that he was a gym teacher and that defendant was an active participant during gym periods. Defendant would lead and influence others during the sessions and got along well with everyone. Walker concluded that defendant spoke very well, kept up his appearance, and had the potential to be a "real citizen."

¶ 11 In allocution, defendant apologized to the family of the victim. He stated he was "truly sorry that this happened that way" and that "if [he'd] known that it was about to happen, [he] could have done something to stop it." Defendant concluded, "I'd just like to say that I'm sorry."

¶ 12 During arguments, defense counsel highlighted that defendant was found guilty "by accountability" and that defendant was "not the one who pulled the trigger." Defense counsel argued that the court had to look, pursuant to the Illinois Constitution, to defendant's potential for rehabilitation and then to the seriousness of the offense. Counsel argued that defendant had "a lot of things going for him." Counsel pointed to defendant's lack of criminal history in arguing that the offense was an "aberration." Counsel said the issue was "what to do with a kid like this." Counsel argued that defendant had "worked all of his life" because that is "how he was taught by his parents." Counsel asked for the minimum sentence of 20 years.

¶ 13 The trial court stated that it had read the presentence investigation (PSI) and all the letters written on defendant's behalf. The court also considered all the factors in aggravation and mitigation. The trial court did not find defendant's accountability status mitigating, as defendant had "encouraged a juvenile" to do the "dirty work" for him. The trial court stated that defendant "didn't have to turn out this way" and "get involved with that gang stuff if he didn't want to." The trial court took into consideration that defendant had no prior record and came from a good family. The trial court sentenced defendant to 35 years in prison.

¶ 14 On direct appeal, defendant argued that the State had failed to prove him guilty beyond a reasonable doubt and that the trial court erred in not allowing expert testimony to establish how various drugs affected Jessica Cosgrove's ability to perceive and remember events. This court affirmed defendant's conviction and sentence. People v. Walsh, 332 Ill. App. 3d 1139, 296 Ill.Dec. 642, 835 N.E.2d 995 (2002) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 15 Defendant filed his initial postconviction petition in June 2003. In the petition, defendant argued that (1) trial counsel was ineffective because trial counsel refused to allow him to testify, (2) appellate counsel was ineffective for failing to properly argue the reasonable doubt issue on direct appeal, an actual innocence claim, and (3) the Truth in Sentencing Act ( 730 ILCS 5/3-6-3 (West 2002) ) was unconstitutional because it conflicted with the Illinois proportionate penalties clause ( Ill. Const. 1970, art. I, § 11 ). The trial court dismissed defendant's petition at the first stage as frivolous and patently without merit. This court affirmed. People v. Walsh , 357 Ill. App. 3d 1089, 324 Ill.Dec. 201, 895 N.E.2d 696 (2005) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 16 Defendant filed a motion for leave to file a successive postconviction petition in July 2007, alleging actual innocence. The trial court denied defendant leave to file and this court affirmed that decision. People v. Walsh , 383 Ill. App. 3d 1145, 360 Ill.Dec. 139, 968 N.E.2d 218 (2008) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 17 On January 29, 2021, defendant filed the motion for leave to file a successive postconviction petition at issue in this appeal. Defendant alleged that his 35-year sentence violated the proportionate penalties clause, as applied to defendant. The trial court denied defendant leave to file, concluding that defendant's claim failed as a matter of law because defendant did not receive a de facto life sentence. Defendant appeals the trial court's denial of his motion for leave to file a successive postconviction petition.

¶ 18 II. ANALYSIS

¶ 19 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.

¶ 20 "[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 results from that failure." 725 ILCS 5/122-1(f) (West 2018). Thus, section 122-1(f) is an exception to the statutory waiver rule, "permitting a successive petition, but only if the defendant first obtains permission from the court and demonstrates to the court cause and prejudice for not having raised the alleged errors in his or her initial postconviction petition." People v. Bailey , 2017 IL 121450, ¶ 15, 421 Ill.Dec. 833, 102 N.E.3d 114.

¶ 21 "[A] prisoner shows cause...