People v. Turner

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2022 IL App (2d) 210753 No. 2-21-0753 Opinion filed November 2, 2022 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 94-CF-1051 ) ANTRONE JEROME TURNER, ) Honorable ) Joseph G. McGraw, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion. OPINION ¶1 Defendant, Antrone Jerome Turner, appeals from an order granting the State’s motion to dismiss his amended successive petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) for relief from his sentence for first-degree murder (720 ILCS 5/91(a)(3) (West 1994)). Defendant argues that he did not receive reasonable assistance from postconviction counsel regarding the petition. Specifically, defendant contends that postconviction counsel performed deficiently by omitting from the amended petition a claim that defendant’s sentence violated our state constitution’s proportionate-penalties clause (Ill. Const. 1970, art. I, § 11). We affirm. ¶2 I. BACKGROUND 2022 IL App (2d) 210753 ¶3 Following a jury trial in the circuit court of Winnebago County, defendant was found guilty of first-degree murder. Defendant committed the offense on May 7, 1994, when he was 17 years old. The trial court sentenced defendant to a 60-year prison term. On direct appeal, we affirmed defendant’s conviction. People v. Turner, No. 2-95-1575 (1997) (unpublished order under Illinois Supreme Court Rule 23). On April 12, 1999, defendant filed, pro se, his first postconviction petition, which the trial court summarily dismissed (see 725 ILCS 5/122-2.1(a)(2) (West 1998)). Defendant appealed, and the trial court appointed the Office of the State Appellate Defender to represent him. Counsel later moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). We granted the motion and affirmed the summary dismissal of defendant’s petition. People v. Turner, No. 2-99-0720 (2000) (unpublished summary order under Illinois Supreme Court Rule 23(c)). ¶4 On July 10, 2019, defendant filed, pro se, a successive postconviction petition. He claimed that his 60-year sentence was a de facto life sentence, which, given his age at the time of the offense, violated the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) and our state constitution’s proportionate-penalties clause. Without first granting defendant leave to file the successive petition (see 725 ILCS 122-1(f) (West 2018)), the trial court docketed the petition for further proceedings (see id. § 122-2.1(b)) and appointed counsel to represent defendant (see id. § 122-4). On November 12, 2020, counsel filed an amended petition claiming that defendant’s sentence was a de facto life sentence that violated the eighth amendment. However, counsel did not mention the proportionate-penalties clause. Counsel also filed a certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). The State successfully moved to dismiss the amended petition, and this appeal followed. ¶5 II. ANALYSIS -2- 2022 IL App (2d) 210753 ¶6 At the outset, we summarize the relevant principles governing proceedings under the Act. Our supreme court has stated as follows: “The Act [citation] provides a remedy for incarcerated defendants who have suffered a substantial violation of their constitutional rights at trial. Under the Act, a postconviction proceeding contains three stages. At the first stage, the circuit court must independently review the postconviction petition, without input from the State, and determine whether it is ‘frivolous or is patently without merit.’ [Citation.] If the court makes this determination, the court must dismiss the petition in a written order. [Citation.] If the petition is not dismissed, the proceedings move to the second stage. [Citation.] At the second stage, counsel is appointed to represent the defendant, if he is indigent [citation], and the State is permitted to file responsive pleadings [citation]. The circuit court must determine at this stage whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. [Citation.] If no such showing is made, the petition is dismissed. If, however, the petition sets forth a substantial showing of a constitutional violation, it is advanced to the third stage, where the circuit court conducts an evidentiary hearing [citation].” People v. Johnson, 2018 IL 122227, ¶¶ 14-15. ¶7 Defendant does not dispute that the amended postconviction petition failed to make a substantial showing of a constitutional violation. Rather, he blames that failure on postconviction counsel’s deficient performance and asks that we provide relief by reversing the dismissal and remanding for further, second-stage proceedings. ¶8 The right to counsel in postconviction proceedings is statutory, not constitutional. People v. Suarez, 224 Ill. 2d 37, 42 (2007). The Act entitles a defendant to reasonable assistance from -3- 2022 IL App (2d) 210753 counsel in a postconviction proceeding. Id. The Act “contemplates that the attorney appointed to represent an indigent petitioner will ascertain the basis of the petitioner’s complaints, shape those complaints into appropriate legal form and present the prisoner’s constitutional contentions to the court.” People v. Johnson, 154 Ill. 2d 227, 237-38 (1993). To that end, Rule 651(c) imposes specific duties on counsel in postconviction proceedings. Rule 651(c) provides, in pertinent part: “The record filed in [the appellate court] shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017). When counsel files a proper Rule 651(c) certificate, a rebuttable presumption arises that counsel provided reasonable assistance. People v. Landa, 2020 IL App (1st) 170851, ¶ 46. Defendant argues that postconviction counsel’s failure to properly amend his pro se petition rebuts the presumption of reasonableness. ¶9 Before addressing that argument, we note that the State contends that, regardless of the quality of postconviction counsel’s performance, we may affirm the dismissal of the petition entirely because it was barred by the general prohibition against successive postconviction petitions. Section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2020)) provides: “Only one petition may be filed by a petitioner under this Article without leave of the court. 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. For purposes of this subsection (f): (1) a prisoner shows cause by -4- 2022 IL App (2d) 210753 identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.” To obtain leave to file a successive petition, a defendant need only make “a prima facie showing of cause and prejudice.” People v. Bailey, 2017 IL 121450, ¶ 24. “[L]eave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings.” People v. Smith, 2014 IL 115946, ¶ 35. ¶ 10 The State maintains that defendant failed to establish cause and prejudice. However, we need not address that issue, because—as explained below—we conclude that defendant received from postconviction counsel the reasonable assistance required by statute. Therefore, defendant has demonstrated no grounds for reversing the dismissal of his petition. ¶ 11 Turning to the merits, defendant argues that postconviction counsel performed deficiently by abandoning a viable claim in the pro se petition that defendant’s sentence violated our state constitution’s proportionate-penalties clause. We note that, “where *** the presumption of reasonable assistance is present, ‘the question of whether the pro se allegations had merit is crucial to determining whether counsel acted unreasonably by not filing an amended petition.’ ” People v. Gallano, 2019 IL App (1st) 160570, ¶ 30 (quoting People v. Profit, 2012 IL App (1st) 101307, ¶ 23). It follows that, where counsel does file an amended petition, the reasonableness of counsel’s -5- 2022 IL App (2d) 210753 choice to omit a particular pro se claim from the amended petition likewise depends on the merits of that claim. ¶ 12 As we have recently observed: “The proportionate-penalties clause states that a court must determine all penalties based on the ‘seriousness of the offense and with the objective of restoring the offender to useful citizenship.’ [Citation.] To succeed on a proportionate-penalties claim, the defendant must show that his sentence ‘is so disproportionate to the offense as to violate the constitution.’ [Citation.] Stated differently, ‘[t]he proportionate penalties clause is implicated when a defendant’s sentence is cruel, degrading, or so wholly disproportionate to the offense so as to shock the moral conscience of the community.’ [Citation.]” People v. Garcia, 2022 IL App (2d) 210488, ¶ 14. “[T]he proportionate penalties clause goes further than the eighth amendment in offering protection against oppressive penalties.” People v. Savage, 2020 IL App (1st) 173135, ¶ 65. ¶ 13 Defendant’s proportionate-penalties-clause theory is rooted in a series of cases beginning with the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), which held that the eighth amendment limits the imposition of life sentences without parole for offenses committed by those under the age of 18. The Miller Court reasoned: “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer -6- 2022 IL App (2d) 210753 pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. [Citations.] And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.” Id. at 477-78. The General Assembly incorporated these “Miller factors” into section 5-4.5-105(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-105(a) (West 2016)), which became effective on January 1, 2016. Section 5-4.5-105(a) of the Code provides that the trial court must consider these factors in mitigation when sentencing a defendant for an offense committed after the section’s effective date and while the defendant was under 18. Id. ¶ 14 In People v. Buffer, 2019 IL 122327, ¶ 27, the supreme court held that Miller applies to any life sentence for a juvenile, whether “mandatory or discretionary, natural or de facto.” The Buffer court determined that a sentence of more than 40 years is a de facto life sentence. Id. ¶ 40. In People v. Dorsey, 2021 IL 123010, ¶ 64, the court held that, when the statutory good-conduct scheme affords a defendant a meaningful opportunity for release in 40 years or less, the sentence is not a de facto life sentence for purposes of Miller. Because defendant here was sentenced in 1995, before the truth-in-sentencing statute was enacted, he is eligible for day-to-day credit against his sentence. Since he has a meaningful opportunity for release in 40 years or less, his sentence is not a de facto life sentence. ¶ 15 Nonetheless, defendant suggests that the Miller factors apply to him through the proportionate-penalties clause. In support of his argument that postconviction counsel should have asserted a Miller-based proportionate-penalties claim in the amended petition, defendant cites -7- 2022 IL App (2d) 210753 People v. Harris, 2018 IL 121932. In Harris, the trial court sentenced the defendant to a mandatory aggregate 76-year prison term for a murder he committed when he was a few months over 18. On appeal, he argued that his prison sentence was a de facto life sentence that violated the proportionate-penalties clause. He asserted that, although he was an adult when he committed the offense, Miller nonetheless governed his proportionate-penalties claim because his specific circumstances showed that his mentality was more like a juvenile’s than an adult’s. Id. ¶¶ 37, 42. The Harris court rejected the argument because the record was not sufficiently developed as to the defendant’s specific circumstances. Id. ¶¶ 41, 46. However, the court held open the possibility that the defendant could raise his claim in a postconviction proceeding. Id. ¶ 48. ¶ 16 Defendant observes that, “[s]ince Harris was decided, numerous appellate court opinions have held that emerging adults *** may challenge their mandatory or de facto life sentences under the proportionate penalties clause if they can demonstrate that the relevant characteristics of youth were not adequately considered during their initial sentencing.” (Emphasis in original.) However, cases holding that “emerging adults *** may challenge their mandatory or de facto life sentences under the proportionate penalties clause” are inapposite here because defendant did not receive a natural or de facto life sentence. (Emphasis in original.) ¶ 17 Defendant also cites People v. Gunn, 2020 IL App (1st) 170542, and People v. Parker, 2019 IL App (5th) 150192. Neither case helps defendant. ¶ 18 In Gunn, the trial court sentenced the defendant to 40 years’ imprisonment for first-degree murder committed when he was 17. Gunn, 2020 IL App (1st) 170542, ¶ 1. The defendant argued for the first time on appeal that his 40-year sentence shocked the moral sense of the community (1) “in light of recent changes in juvenile sentencing enacted by our state legislature” (id. ¶ 147) and (2) because the court did not take proper account of his rehabilitative potential (id. ¶ 144). The -8- 2022 IL App (2d) 210753 appellate court found that these arguments were forfeited and that the defendant did not establish error for purposes of the plain-error rule. Id. ¶¶ 145-48. ¶ 19 Gunn provides no support for applying a Miller-based proportionate-penalties analysis to a juvenile’s sentence that is not a natural or de facto life sentence. First, as defendant recognizes, Gunn found that the record did not support the defendant’s contention that his sentence was inconsistent with “recent [statutory] changes in juvenile sentencing.” Id. ¶ 147. Gunn noted that the trial court “stated at defendant’s sentencing that it was aware of recent changes in both the case law and statutory law concerning juvenile sentencing.” Id. Moreover, the trial judge “[e]xercis[ed] the discretion given to him by these new laws” and “chose not to impose [a] firearm enhancement.” Id. Thus, Gunn’s point was simply that, contrary to the defendant’s factual assertion, the trial court recognized and applied those changes in the law. ¶ 20 Further, the Gunn court was not presented with, and did not volunteer an opinion on, the legal question of whether those changes governed the defendant’s sentencing. Moreover, the statutory changes referenced by Gunn did not include section 5-4.5-105(a) of the Code; in a separate portion of its analysis, the court dealt with the defendant’s argument that the trial court erred in not applying that section. See id. ¶¶ 150-54. (Gunn concluded that section 5-4.5-105(a) of the Code did not apply, because the defendant committed the offense after the effective date. Id. ¶ 154.) ¶ 21 As for the defendant’s argument that his sentence did not reflect his rehabilitative potential, Gunn rejected it as a “garden-variety” claim of sentencing error (People v. LaPointe, 2018 IL App (2d) 160903, ¶ 62) and did not suggest that it was applying Miller. As for defendant’s argument that his sentence did not reflect his rehabilitative potential, Gunn construed and rejected this argument as a “garden-variety” claim of sentencing error (People v. LaPointe, 2018 IL App (2d) -9- 2022 IL App (2d) 210753 160903, ¶ 62)—not as a constitutional argument, much less a Miller-based argument, For these reasons, Gunn provides no support for a Miller-based proportionate-penalties challenge to defendant’s sentence here. ¶ 22 In Parker, the defendant, who was 16 years old when arrested for murder, was permitted to challenge his guilty plea on the grounds that the negotiated sentencing cap was an unconstitutional de facto life sentence and he entered his plea to avoid a mandatory life sentence. Parker, 2019 IL App (5th) 150192, ¶¶ 16-18. Here, we fail to see how this case has any bearing on whether defendant’s sentence, which was not a de facto life sentence, violated the proportionate-penalties clause. ¶ 23 Notably absent from defendant’s opening brief is any clear explanation of how his sentence, which was not a de facto life sentence, ran afoul of the proportionate-penalties clause. Instead, defendant suggests for the first time in his reply brief “that the sentencing court did not consider [defendant’s] youth and its attendant circumstances (‘the Miller factors’) in sentencing [defendant], and as such, the sentence was unconstitutional.” (Emphasis in original.) ¶ 24 Apparently, defendant relies on People v. Meneses, 2022 IL App (1st) 191247-B, in support of this theory. In Meneses, the defendant was convicted of first-degree murder and attempted murder. He was 16 years old when he committed the offenses. Like defendant here, the defendant in Meneses was sentenced to a 60-year prison term with eligibility for day-for-day sentencing credit; thus, his sentence was not a de facto life sentence. Id. ¶¶ 1-5. The defendant appealed from the denial of leave to file his successive postconviction petition alleging that the sentence violated the proportionate-penalties clause. The State did not dispute that the defendant satisfied the “cause” prong for leave to file. Id. ¶ 4. However, the State contended that the defendant had not established prejudice. Id. The Meneses court disagreed. The court reasoned that, even though the - 10 - 2022 IL App (2d) 210753 defendant had not received a natural or de facto life sentence, the trial court erred by improperly considering the need for deterrence in imposing the 60-year sentence. Specifically, the trial court stated, “ ‘[T]he sentence that I impose must be one to deter not only this individual but others from committing this same type of useless crimes, the useless shootings that took place in this particular case.’ (Emphasis added.)” Id. ¶ 11. The Meneses court observed that, in Miller, the Supreme Court discounted deterrence as a rationale for imposing lengthy sentences on juvenile offenders. Id. ¶ 20. Juveniles are not susceptible to deterrence “since their recklessness and impetuosity make them unlikely to consider future consequences.” Id. ¶ 25 Thus, in Meneses, the appellate court held that the trial court should have granted the defendant leave to file his petition, because he made a “colorable claim” that the trial court violated the proportionate-penalties clause by stressing deterrence as a sentencing factor. Id. ¶ 22. Defendant’s reliance on Meneses is misplaced for two reasons. First, Meneses merely held that the defendant made a sufficient showing to proceed to the second stage of the postconviction proceeding. Here, the petition reached that stage. To proceed further, it was necessary not merely to assert a “colorable claim” (i.e., a prima facie showing of cause and prejudice) but to make a substantial showing of a constitutional violation. Second, and more importantly, Meneses provides no support for the central thesis of defendant’s claim—when sentencing an offender for a crime committed while under 18 years of age, the proportionate-penalties clause requires consideration of the Miller factors even when the offender does not receive a natural or de facto life sentence. The Meneses court’s reliance on Miller’s remarks about deterrence did not indicate full-blown endorsement of applying the Miller factors to any juvenile sentence when evaluating it under the proportionate-penalties clause. - 11 - 2022 IL App (2d) 210753 ¶ 26 Because defendant cites no pertinent authority that the proportionate-penalties clause requires consideration of the Miller factors for the sentence he received, and he does not argue that existing case law should be extended to create such a requirement, he has forfeited the issue. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); R. 612(b)(9) (eff. July 1, 2017). Furthermore, for all of the reasons previously stated, defendant has not identified any meritorious basis for a Miller-based proportionate-penalties claim. As such, he has failed to establish that postconviction counsel’s failure to raise such a claim in the amended petition was unreasonable. ¶ 27 III. CONCLUSION ¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County. ¶ 29 Affirmed. - 12 - 2022 IL App (2d) 210753 2022 IL App (2d) 210753 Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 94-CF1051; the Hon. Joseph G. McGraw, Judge, presiding. Attorneys for Appellant: James E. Chadd, Thomas A. Lilien, and Jaime Montgomery, of State Appellate Defender’s Office, of Elgin, for the appellant. Attorneys for Appellee: J. Hanley, State’s Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, and John G. Barrett, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People. - 13 -

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