Held: [*] The dismissal of defendant’s postconviction petition was affirmed as to most of his 19 claims of error, including allegations of ineffective assistance of his trial and appellate counsel, following his convictions for two first-degree murders, but pursuant to his claim based on the imposition of a mandatory life sentence without the possibility of parole on a person who was 16 years of age at the time he shot the victims, his sentence was vacated and the cause was remanded for a new sentencing hearing in which defendant’s sentence could be reconsidered in light of the United States Supreme Court’s decision in Miller, which forbids a mandatory sentence of life imprisonment without the possibility of parole on those under 18 years of age at the time of their offense.
Appeal from the Circuit Court of St. Clair County, No. 99-CF-995; the Hon. Jan V. Fiss, Judge, presiding.
Corey Johnson, of Menard, appellant pro se.
Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino, Stephen E. Norris, and Jennifer Camden, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Shobha L. Mahadev, Project Director of Illinois Coalition for the Fair Sentencing of Children, of Northwestern University School of Law, and Lawrence A. Wojcik and Eric M. Roberts, both of DLA Piper LLP (US), both of Chicago, for amicus curiae.
Justices Stewart and Wexstten concurred in the judgment and opinion.
¶ 1 Defendant, Corey Johnson, age 16 at the time of offenses in 1999, was tried as an adult and convicted of first-degree murder (720 ILCS 5/9-1(a) (West 1998)) in the shooting deaths of Charles Evans, age 37 at the time of his death, and Jeremiah Scott, age 18 at the time of his death. The prosecution's theory was that defendant shot Evans and Scott during an attempted carjacking. Prior to trial, the defendant told police he shot Evans and Scott in self-defense after they kidnapped him. At trial, defendant changed his story and testified he got into the car to show Evans and Scott where to buy crack cocaine. He testified that instead of following his directions, they told him they wanted to buy crack in St. Louis and began driving in that direction, at which point defendant began to fear for his life. Defendant testified that there was a struggle for the gun which resulted in the deaths of Evans and Scott. The jury found defendant guilty on both counts.
¶ 2 A presentence investigation report showed that defendant had two prior incidents of delinquency. On November 14, 1997, defendant admitted to a delinquency/residential burglary petition and was placed on one year's probation, which he successfully completed. On May 27, 1999, defendant admitted to a delinquency/burglary petition and was placed on one year's probation, which was not successfully completed due to the murders of Evans and Scott. The presentence investigation further showed defendant violated the inmate discipline code on six occasions while awaiting trial at the St. Clair County jail. These violations led to loss of privileges and lockdown. The presentence investigation showed that defendant completed his GED.
¶ 3 A pretrial psychiatric evaluation concluded that defendant has a low frustration tolerance level and revealed that he had been hospitalized when he was eight years old for psychiatric reasons at the request of a Department of Children and Family Services counselor for aggression, including fire-setting, but had never received any psychotropic medication. During the evaluation by the psychiatrist, defendant admitted to occasionally smoking marijuana and a long history of alcohol abuse. By age 14, defendant was drinking daily and had experienced memory lapses. He continued to drink excessively until the time of his incarceration on the murder charges.
¶ 4 A victim impact statement was submitted by the wife of one of the victims as to how her husband's murder had adversely affected her. The State argued that pursuant to section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2002)), the trial court was required to sentence defendant to a mandatory term of natural life in prison. Defense counsel agreed that, pursuant to the statute, the trial court lacked discretion in sentencing, but objected on the basis that "mandatory sentencing is per se unconstitutional."
¶ 5 On April 15, 2003, the trial court sentenced defendant to a mandatory term of natural life imprisonment without the possibility of parole. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2002). This court affirmed defendant's conviction on direct appeal on September 8, 2004. People v. Johnson, No. 5-03-0296 (2004) (unpublished order under Supreme Court Rule 23). On January 28, 2005, defendant filed a pro se petition for relief from judgment (735 ILCS 5/2-1401 (West 2004)), which the trial court dismissed sua sponte. On July 21, 2005, defendant filed an appeal of that ruling and also filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 2004)) in which he raised 11 claims of error. On September 8, 2005, the trial court dismissed the petition as "frivolous and patently without merit, " and defendant filed a notice of appeal. The appeals were consolidated. This court reversed the dismissal of defendant's pro se petition and remanded for further proceedings. People v. Johnson, 377 Ill.App.3d 854, 879 N.E.2d 977 (2007).
¶ 6 On November 26, 2008, counsel was appointed to represent defendant in additional postconviction proceedings. In 2009, defendant filed a pro se petition for new counsel. After a hearing, the trial court denied defendant's motion to appoint new counsel and gave defendant the choice of allowing him to keep his previously appointed counsel or proceed pro se. Defendant chose to proceed pro se. Ultimately, defendant elected to proceed with a 40-page, single-spaced postconviction petition filed pro se on April 12, 2010, which added additional arguments to the petition previously addressed by this court. Most of the allegations raised in the petition pertained to allegations of ineffective assistance of trial and appellate counsel. Defendant also asserted inter alia that the State presented perjured testimony at trial and that his sentence of mandatory life in prison failed to reflect his ability to be rehabilitated and constituted cruel and unusual punishment. The following are defendant's 19 claims of error:
"1. Defendant was denied due process, a fair trial and effective assistance of counsel due to trial counsel's failure to interview and investigate witnesses, visit and investigate the crime scene, call witnesses to testify, and obtain and present evidence that would have supported defendant's defense and appellate counsel was ineffective for failing to raise these issues on direct appeal.
2.Trial counsel was ineffective for failing to preserve defendant's right to challenge his sentence and the trial judge improperly admonished defendant of his appeal rights after sentencing and appellate counsel was ineffective for failing to raise this issue on direct appeal. The petition recounts a colloquy between defense counsel and the judge about whether the sentence was mandatory. Counsel was required to file a motion to reconsider sentence prior to filing the notice of appeal.
3.The trial court's denial of defendant's motion to suppress his statements to police was inconsistent with the evidence presented and both trial counsel and appellate counsel were ineffective for failing to challenge the ruling.
4.Defendant's mandatory sentence does not reflect his ability to be rehabilitated and constitutes cruel and unusual punishment.
5.Trial counsel was ineffective in that he advised defendant to stipulate to illegally obtained evidence, and appellate counsel was ineffective for failing to raise this issue on appeal.
6.Defendant was denied a fair trial because of improper closing argument and trial counsel was ineffective for failing to object, and appellate counsel was ineffective for failing to raise this issue on direct appeal.
7.Defendant was denied a fair trial and effective assistance of counsel because of counsel's failure to object to the State's knowing use of false testimony at the suppression hearing, failure to properly prepare for the hearing and make the trial court aware that defendant had been questioned more times than the State acknowledged, failure to consult with defendant prior to the suppression hearing, and failure to file a motion to suppress all the illegally obtained evidence, and appellate counsel was ineffective for failing to raise these issues on direct appeal.
8.Trial counsel was ineffective for failing to file a motion to dismiss the indictment based upon prosecutorial misconduct, the State's knowing use of perjured testimony at the grand jury proceedings, and appellate counsel was ineffective for failing to raise this issue on direct appeal.
9.Trial counsel was ineffective for failing to object to prosecutorial misconduct at trial and failing to allege such misconduct in the motion for a new trial, and appellate counsel was ineffective for failing to raise this issue on direct appeal.
10.The trial court abused its discretion by allowing Detective Brian Lammers to testify about a photograph that showed there were no bushes in the area where defendant initially said he was kidnapped while hiding in said bushes and both trial counsel and appellate counsel were ineffective for failing to raise this issue.
11.The trial court erred in not appointing new counsel to represent defendant at sentencing and during the posttrial phase since defendant alleged several instances of ineffectiveness of trial counsel, and appellate ...