Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County. No. 03 CR 22273 The
Honorable Noreen Valeria Love, Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court,
with opinion. Justices Hall and Reyes concurred in the
judgment and opinion.
GORDON, PRESIDING JUSTICE
1 After a jury trial, defendant Darron Jackson, age 16 at the
time of the offense, was convicted as an adult of the first
degree murder of Kenneth Porter and of personally discharging
a firearm that caused another's death. He was
subsequently sentenced to 50 years in the Illinois Department
of Corrections (IDOC).
2 After his conviction was affirmed and his first
postconviction petition was dismissed as frivolous and
patently without merit, defendant filed a motion for leave to
file a successive postconviction petition, arguing: (1) that
a 50-year sentence for a minor violates the eighth
amendment's prohibition against cruel and unusual
punishment (U.S. Const., amend. VIII),  pursuant to
recent decisions concerning minors by the United States
Supreme Court, such as Miller v. Alabama, 567 U.S.
___, 132 S.Ct. 2455 (2012); and (2) that the automatic
transfer provision of Illinois' Juvenile Court Act of
1987 (705 ILCS 405/5-130 (West 2002)) violates due process,
the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970, art. I, § 11),
the eighth amendment (U.S. Const., amend. VIII).
3 The trial court denied defendant leave to appeal, and it is
this order which is at issue before us. For the following
reasons, we affirm.
5 The State's evidence at trial showed that, on September
10, 2003, at 10:30 a.m., defendant shot and killed Kenneth
Porter as Porter was standing in the middle of an
intersection at Madison Street and Fourth Avenue, in Maywood,
Illinois. There are no issues raised on this appeal
concerning the evidence at trial. This court has already
discussed the evidence at trial in both our Rule 23 orders
affirming his conviction on appeal (People v.
Jackson, No. 1-04-3656 (2007) (unpublished order
pursuant to Supreme Court Rule 23)) and affirming the
dismissal of his first postconviction petition (People v.
Jackson, No. 1-08-1546 (2009) (unpublished order
pursuant to Supreme Court Rule 23)). We incorporate these
orders by reference, and we will not repeat here our prior
discussion of the evidence at trial. The issues raised on
appeal are purely legal issues concerning defendant's
6 After a jury trial, defendant was convicted on September 2,
2004, of first degree murder. The State proceeded on a single
charge of enhanced first degree murder which meant that they
had to find, beyond a reasonable doubt, that defendant, while
armed with a firearm, personally discharged that firearm that
proximately caused the death of the victim. The jury was so
instructed accordingly and returned a verdict of guilty, and
defendant was sentenced by the trial court on September 28,
2004, to 60 years with IDOC.
7 At the sentencing hearing on September 28, the assistant
State's Attorney (ASA) observed that defendant was
subject to a mandatory firearm enhancement, which provided
that "25 years or up to a term of natural life shall be
added to the term of imprisonment imposed by the
court." As a result, the minimum possible sentence
was 45 years, and the maximum was natural life. The ASA asked
for natural life. The trial court imposed a sentence of 60
years which the trial court noted would be served at 100% of
8 On appeal, this court affirmed defendant's conviction
but reduced his sentence from 60 to 50 years.
Jackson, No. 1-04-3656 (2007) (unpublished order
pursuant to Supreme Court Rule 23). A year after his direct
appeal, defendant retained counsel,  who filed a postconviction
petition on March 24, 2008, and a further amended petition on
April 11, 2008. On May 23, 2008, the trial court dismissed
the amended postconviction petition at the first stage as
frivolous and patently without merit, and this court affirmed
the dismissal on appeal. Jackson, No. 1-08-1546
(2009) (unpublished order pursuant to Supreme Court Rule 23).
9 On May 15, 2014, defendant filed a pro se motion
for leave to file his first successive postconviction
petition, arguing that, since his claims were based on recent
changes in the law announced in Miller, 567 U.S.
___, 132 S.Ct. 2455, and related cases, he could not have
raised these claims in his direct appeal or in his original
postconviction petition which was filed in 2008.
10 In his pro se motion and accompanying petition,
defendant argued, first, that his 50-year sentence was a
de facto life sentence, because the sentence
exceeded his life expectancy. He argued that his sentence,
which included no eligibility for parole, was, in effect, a
life sentence without parole and thus a violation of the
eighth amendment's prohibition of cruel and unusual
punishment, as that term has been recently interpreted by the
United States Supreme Court in Miller, 567 U.S. ___,
132 S.Ct. at 2460 ("mandatory life without parole for
those under the age 18 at the time of their crimes violates
the Eighth Amendment's prohibition on 'cruel and
unusual punishment' "). Defendant argued that, if
mandatory life without parole for a juvenile does not serve
any "penological" goals then neither does a de
facto life sentence without parole. Miller, 567
U.S. ___, 132 S.Ct. at 2465 ("the distinctive attributes
of youth diminish the penological justifications for imposing
the harshest sentences on juvenile offenders, even when they
commit terrible crimes").
11 Defendant argued, second, that the automatic transfer
provision of the Illinois Juvenile Court Act violates federal
and state due process, the eighth amendment and the
proportionality clause of the Illinois Constitution,
particularly when combined with the firearm enhancement (730
ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002)) and the truth in
sentencing statutes (730 ILCS 5/3-6-3(a)(2)(i) (West
12 On August 29, 2014, the trial court denied defendant leave
to file a successive postconviction petition; and on October
23, 2014, this court allowed defendant's late notice of
14 On this appeal, defendant claims that the trial court
erred in denying his motion for leave to file his first
successive postconviction petition, because recent changes in
the law prevented him from filing his claims earlier. For the
following reasons, we affirm.
15 I. Stages of a Postconviction Petition
16 Although the issue before us is the very preliminary
question of whether defendant's petition can even be
filed, we provide here a summary of the stages to show how
the subsequent process sheds light on this preliminary step.
17 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1
et seq. (West 2014)) provides a statutory remedy for
criminal defendants who claim their constitutional rights
were violated at trial. People v. Edwards, 2012 IL
111711, ¶ 21. The Act is not intended to be a substitute
for an appeal; instead, it is a collateral proceeding which
attacks a final judgment. Edwards, 2012 IL 111711,
18 The Act provides for three stages of review by the trial
court. People v. Domagala, 2013 IL 113688, ¶
32. At the first stage, the trial court may summarily dismiss
a petition that is frivolous or patently without merit. 725
ILCS 5/122-2.1(a)(2) (West 2014); Domagala, 2013 IL
113688, ¶ 32.
19 However, for a successive petition to even be filed, the
trial court must first determine whether the petition (1)
states a colorable claim of actual innocence
(Edwards, 2012 IL 111711, ¶ 28) or (2)
establishes cause and prejudice (People v. Smith,
2014 IL 115946, ¶ 35). This standard is higher than the
normal first-stage "frivolous or patently without
merit" standard applied to initial petitions.
Edwards, 2012 IL 111711, ¶¶ 25-29;
Smith, 2014 IL 115946, ¶ 34 ("the
cause-and-prejudice test for a successive petition involves a
higher standard than the first-stage frivolous or patently
without merit standard that is set forth in section
122-2.1(a)(2) of the Act").
20 Since a filed successive petition has already satisfied a
higher standard, the first stage is rendered unnecessary and
the successive petition is docketed directly for second-stage
proceedings. See People v. Sanders, 2016 IL 118123,
¶¶ 25, 28 (with a successive petition, the initial
issue before the trial court is whether it "should be
docketed for second-stage proceedings"); People v.
Wrice, 2012 IL 111860, ¶ 90 ("reversing the
trial court's order denying leave to file his second
successive postconviction petition and remand[ing] to the
trial court for *** second-stage postconviction
proceedings"); People v. Jackson, 2015 IL App
(3d) 130575, ¶ 14 ("When a defendant is granted
leave to file a successive postconviction petition, the
petition is effectively advanced to the second stage of
postconviction proccedings."); People v.
Almodovar, 2013 IL App (1st) 101476, ¶ 1 (reversing
the trial court's denial of the defendant's motion
for leave to file a successive petition and remanding for
21 If a trial court permits a successive petition to be filed
or does not dismiss an initial petition at the first stage,
the petition then advances to the second stage, where counsel
is appointed if a defendant is indigent. 725 ILCS 5/122-4
(West 2014); Domagala, 2013 IL 113688, ¶ 33;
Wrice, 2012 IL 111860, ¶ 90 (after reversing
the trial court's denial of leave to file a successive
petition, the supreme court remanded "for appointment of
postconviction counsel and second-stage postconviction
proceedings"). After counsel determines whether to amend
the petition, the State may file either a motion to dismiss
or an answer to the petition. 725 ILCS 5/122-5 (West 2012);
Domagala, 2013 IL 113688, ¶ 33. At the second
stage, the trial court must determine "whether the
petition and any accompanying documentation make a
substantial showing of a constitutional violation."
People v. Edwards, 197 Ill.2d 239, 246 (2001).
22 "The second stage of postconviction review tests the
legal sufficiency of the petition. Unless the
petitioner's allegations are affirmatively refuted by the
record, they are taken as true, and the question is whether
those allegations establish or 'show' a
constitutional violation. In other words, the
'substantial showing' of a constitutional violation
that must be made at the second stage [citation] is a measure
of the legal sufficiency of the petition's well-pled
allegations of a constitutional violation, which if
proven at an evidentiary hearing, would entitle
petitioner to relief." (Emphasis in original.)
Domagla, 2013 IL 113688, ¶ 35.
23 Both the second stage and a motion for leave to file a
successive petition require a review of "the petition
and any accompanying documentation." Edwards,
197 Ill.2d at 246 (second stage review); Edwards,
2012 IL 11171, ¶ 24 (motion for leave to file a
successive petition). For the second stage to not be
superfluous for a successive petition, it must be that the
"substantial showing" required at the second stage
is greater than the "probability" required for a
successive petition to receive leave for filing.
Smith, 2014 IL 115946, ¶ 29 (expressing a
desire not to "render the entire three-stage
postconviction process superfluous").
24 If the defendant makes a "substantial showing"
at the second stage, then the petition advances to a
third-stage evidentiary hearing. Domagala, 2013 IL
113688, ¶ 34. At a third-stage evidentiary hearing, the
trial court acts as factfinder, determining witness
credibility and the weight to be given particular testimony
and evidence, and resolving any evidentiary conflicts.
Domagala, 2013 IL 113688, ¶ 34. This third
stage is the same for both initial and successive petitions.
Cf. Smith, 2014 ...