Appeal from the Circuit Court of Cook County. No. 96 CR 1838 Honorable Arthur F. Hill, Jr., Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Salone
PRESIDING JUSTICE SALONE delivered the judgment of the court, with opinion. Justice Steele concurred in the judgment and opinion.
Justice Sterba specially concurred, with opinion.
¶ 1 Defendant Nicholas Morfin appeals from an order of the circuit court dismissing his second or successive petition for relief from judgment (735 ILCS 5/2-1401 (West 2010)) challenging his mandatory sentence of natural life imprisonment for two counts of first degree murder on the basis that he was a minor at the time of his offenses. Defendant contends that a mandatory life sentence for an offender under 18 years old violates the Illinois constitutional requirement of proportionate penalties and the federal constitutional prohibition against cruel and unusual punishments. In particular, he contends that his claim is meritorious under the United States Supreme Court decision in Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455 (2012). The State responds that defendant's constitutional challenges to his sentence are barred as res judicata and are not meritorious, and particularly contends that Miller does not apply herein as it is a new rule of law that cannot be applied retroactively on collateral review. For the reasons stated below, we agree with defendant, vacate his sentence, and remand for resentencing consistent with Miller.
¶ 3 Pretrial and Trial Proceedings
¶ 4 Defendant -- along with co-defendants William Bigeck, Eric Anderson, Nicholas Liberto, and Edward Morfin (Edward) -- was charged with first degree murder in the shooting deaths of Carrie Hovel and Helena Martin, and three counts each of attempted first degree murder and aggravated discharge of a firearm for allegedly shooting at Bryan Adasiak, Peter Casanas, and Melissa Shibla, all allegedly done on or about December 14, 1995.
¶ 5 Defendant was tried in 1997 in a severed jury trial upon the first degree murder charges alone. Bigeck and Edward, eligible for the death penalty as each was over 18 years old at the time of the offenses, had each pled guilty to one count of first degree murder, with the other charges dismissed and a 30-year prison sentence recommended by the State, in exchange for testimony against their co-defendants.
¶ 6 According to the trial evidence, co-defendants Anderson and Bigeck stole two revolvers from a police officer's home on the morning in question and brought them to defendant's home. There, defendant and Anderson test-fired the guns in the basement, then defendant hid one of the guns, wrapped in a rubber glove, in the cushions of his bedroom sofa. Defendant, Anderson, and Bigeck were all members of the Almighty Popes street gang, and they met after the gun theft with leaders of that gang, who ordered them to attack members of the rival Ridgeway Lords gang found in Almighty Popes' territory. Anderson was to actually do the shooting, while defendant was to wipe off fingerprints and file off serial numbers from the stolen guns; he did so. That afternoon, defendant was riding in an older gray or silver sedan with co-defendants Liberto, Edward, and Anderson when defendant saw in Almighty Popes territory a tan van that the gang associated with the Ridgeway Lords; defendant said that they should "pull a burn on the van"; that is, shoot up the van. The gray sedan passed the van two or three times, then drove away. At about 6 p.m., Edward, Anderson, and Bigeck walked to the parked van, occupied by teenagers Hovel, Martin, Adasiak, Casanas, and Shibla. Adasiak was a member of the Ridgeway Lords. As Casanas started to drive away upon seeing the young men approaching, Anderson fired several shots at the van and Hovel and Martin were fatally shot. While defendant was supposed to provide a ride to Anderson and the others to and from the shooting, they walked to the shooting and there was no car waiting for them afterwards.
¶ 7 In lineups, Adasiak and Casanas identified Anderson and Bigeck as two of the young men from the shooting. After the shooting, Liberto was seen parking and exiting an older gray car that was identified by Casanas as the one that passed the van before the shooting. Edward and Bigeck testified to their participation in the aforementioned events. Other members of the Almighty Popes testified that defendant, Anderson, and Bigeck were members of that gang, that the Almighty Popes associated the tan van with the Ridgeway Lords, that defendant, Anderson, and Bigeck were ordered to attack the Ridgeway Lords, and that Anderson and Bigeck admitted to stealing two guns that were then test-fired in defendant's basement and from which defendant filed serial numbers. A police officer testified that two revolvers were stolen from her home on the day in question, and she identified Bigeck as one of the two suspicious men she had seen outside her home just before leaving it. Defendant led officers to his home, where they found one of the stolen pistols wrapped in a latex glove in the cushions of a sofa in his bedroom as well as bullet fragments from a dresser in the bedroom and more bullet fragments and pock-marked walls in the basement. Edward brought the police to where the other stolen gun was hidden, and forensic testing found that this latter gun fired the bullets and fragments taken from Hovel and Martin and from defendant's bedroom. A police gang-crimes detective explained that certain of defendant's tattoos, and gestures by defendant and Anderson in three photographs depicting them together, indicated membership in the Almighty Popes. The detective also explained that a phrase in a post-arrest letter from defendant -- "Folk killing for a living" -- indicated "his lifestyle as a Folks killer," with the Ridgeway Lords being in the Folks affiliation of gangs.
¶ 8 The jury found defendant guilty of the first degree murders of Hovel and Martin. Posttrial motions were denied.
¶ 9 Sentencing Proceedings
¶ 10 Defendant's presentence investigation report (PSI) showed no prior criminal convictions or juvenile adjudications. It indicated that he was raised by his employed and married parents with the assistance of his grandparents, that he completed grade school and had attended over three years of high school when he was arrested for the instant offenses, and that he was in good physical and mental health with limited alcohol and marijuana usage. Defendant admitted to former membership in the Almighty Popes gang, which ended in mid-1996, and that many co-defendants were also members of that gang. The PSI, and other documents in the record, states defendant's date of birth as June 12, 1978.
¶ 11 Defendant filed a motion seeking to be sentenced to a term of years in prison on the basis that the statutorily mandated natural life sentence for committing two or more murders would violate his constitutional rights to due process and equal protection, to meaningful assistance of counsel, to have his rehabilitative potential considered in sentencing, and to be free from cruel and unusual punishment. Defendant admitted that the statute had been previously upheld against constitutional challenge but argued that his particular circumstances called for a different result. He noted that he was 17 years old at the time of the offenses with no prior convictions or juvenile adjudications, and that he was found guilty on an accountability basis. By contrast, he argued, co-defendants Bigeck and Edward were adults at the time of the offense who were armed at the scene of the crime, confessed to their participation therein, and had a prior conviction (Edward) or admitted prior offenses (Bigeck). Nonetheless, the State agreed to dismiss one murder count each against Edward and Bigeck and seek prison terms of 30 years for each. Defendant argued that "it would be fundamentally unfair" as well as cruel and unusual to sentence him to natural life imprisonment under such circumstances. As to meaningful assistance of counsel, defendant argued that the mandatory nature of the life sentence rendered meaningless any mitigation that his counsel would present at sentencing.
¶ 12 On May 22, 1998, the court denied the motion and held the sentencing hearing. The State introduced victim impact statements from Martin's mother and Hovel's father, mother, stepfather, and grandmother, while the defense introduced 20 letters on defendant's behalf. Defendant chose not to personally address the court. The court then sentenced defendant to two concurrent terms of natural life imprisonment. Defendant timely filed a motion to reduce his sentence, making the same arguments as in his presentencing motion to be sentenced to a term of years in prison. The motion was denied.
¶ 13 Direct Appeal and First Vacatur Petition
¶ 14 On direct appeal, defendant contended that (1) he was arrested without probable cause, (2) the trial court allowed improper gang evidence against him, (3) the court also improperly admitted "other-crimes" evidence regarding his prior interactions with police, (4) the State made multiple improper arguments, and (4) the State failed to disclose potentially exculpatory evidence regarding a State witness. Defendant also contended that his mandatory sentence of natural life imprisonment was unconstitutional. This court affirmed defendant's convictions and sentence, noting in relevant part that the mandatory life sentence provision had been upheld (1) on the basis that no possible mitigating evidence can overcome the statute, and (2) against challenges from youthful offenders and from defendants convicted on an accountability basis. People v. Anderson, Nos. 1-98-2390, 1-98-2438, cons. (2000) (unpublished order under Supreme Court Rule 23).*fn1
¶ 15 In 2005, defendant, through counsel, filed a petition to vacate his sentence as void, arguing that the statute mandating natural life imprisonment for two or more murders was unconstitutional on its face and as applied to him. He cited People v. Miller, 202 Ill. 2d 328 (2002), where our supreme court held the statute unconstitutional under the Illinois proportionate-penalties clause as applied to a 15-year-old convicted on an accountability basis and affirmed the trial court's sentence of 50 years' imprisonment. Defendant acknowledged that he, unlike Miller, was over 17 years old but argued that this should not bar him from the same relief as Miller. Defendant also argued that the statute and his sentence thereunder violate the federal prohibition on cruel and unusual punishments because they make no distinction between juvenile and adult offenders, citing Roper v. Simmons, 543 U.S. 551 (2005), where the United States Supreme Court found unconstitutional the imposition of the death penalty on persons under 18 years old at the time of their offenses.
¶ 16 The State moved to dismiss the petition, noting that Miller held the statute at issue unconstitutional as applied to Miller in particular while expressly declaring that a natural life sentence against a juvenile convicted through accountability could be constitutionally appropriate under different circumstances. The State argued that defendant was not a juvenile at the time of his offense as he was 17 years old and that his culpability for the instant offenses was greater than Miller's culpability. Also, the State argued that the constitutionality of defendant's sentence was res judicata as it was raised and ruled upon in the direct appeal.
¶ 17 In March 2006, the circuit court granted the State's motion to dismiss, finding that the constitutionality issue was barred as res judicata, that Miller did not categorically prohibit natural life sentences for juveniles convicted of two or more murders through accountability, and that defendant was more culpable than Miller so that Miller does not apply here.
¶ 18 On appeal, this court affirmed the dismissal, holding that the constitutionality of defendant's sentence was res judicata and rejecting his argument that res judicata did not bar his claim based on new law; specifically, Miller. This court found that (1) Miller applies only to juveniles, while defendant as a 17-year-old was not a juvenile, and (2) Roper concerned the constitutionality of the death penalty for minors and does not require the same result for ...