Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County, No. 01 CR 2208
Honorable Thomas J. Hennelly, Judge, presiding.
JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion. Justices Howse and Lavin concurred in the
judgment and opinion.
FITZGERALD SMITH JUSTICE
1 Following a 2004 bench trial, defendant Llewillyn Johnson
was convicted of first degree murder and sentenced to 40
years' imprisonment. We affirmed on direct appeal.
People v. Johnson, No. 1-04-1812 (2005) (unpublished
order under Illinois Supreme Court Rule 23). We also affirmed
the dismissal of his 2006 postconviction petition. People
v. Johnson, 2015 IL App (1st) 132664-U. Defendant now
appeals from a 2015 order denying him leave to file a
successive postconviction petition. He contends that he
showed the requisite cause and prejudice regarding his claim
that his 40-year prison sentence for a crime he committed
when he was 15 years old is improper. For the reasons stated
below, we affirm.
2 The trial evidence was that, on October 15, 1998, defendant
fatally shot his cousin Kena Brown in her car while robbing
Brown of a few ounces of cocaine and while her infant
daughter was in the car. Danielle Theus testified that, on
the morning of October 15, she heard Brown take a telephone
call from a male caller, after which Brown told Theus that
she was going to meet her cousin Tari Brisco to deliver an
ounce of drugs and then would meet Theus. Brown's car
containing her body and her daughter was found that afternoon
in the 4100 block of West Kinzie Street in Chicago. James
Parson testified that defendant told him in late October or
early November 1998 that he and Brisco robbed defendant's
cousin Kena of nine ounces of cocaine, after Brisco arranged
to buy cocaine from her, and defendant told Parson that he
"shot the bitch" in the head after telling her to
look him in the eye. Parson testified that defendant took him
in November 1998 to the 4100 block of Kinzie, "the spot
where he had took his cousin, " and told Parson that he
had intended to shoot Brown's daughter but decided to
leave her in the car rather than take the time to shoot her
and risk being caught. Brisco was present on both occasions,
and Parson described him as "just smiling" during
defendant's accounts. After Parson was arrested for a
drug offense in 2000, he told police about defendant's
admission to killing Brown and took police to the Kinzie
Street location. In December 2000, Parson met defendant, with
police recording the meeting, and defendant bragged about
shooting Brown after Brisco declined to shoot her and after
she begged for her life. The recording was shown at trial.
3 The presentence investigation report (PSI) indicated that
defendant was born in July 1983. Defendant admitted in the
PSI to a juvenile adjudication for possession of a controlled
substance, for which he received probation that he completed
successfully. However, the PSI also stated that no juvenile
adjudication was found under defendant's name. Defendant
was raised by his mother and grandmother, and had a close
relationship with them, but rarely saw his father. Defendant
reported a good childhood with no abuse. Defendant has three
children and saw them daily. He completed grade school,
attended high school for two years and had
"average" grades before "dropping out, "
tried unsuccessfully in 1999 to obtain his GED, and stated
his intent to obtain his GED. He was never employed.
Defendant reported good physical and mental health, denied
drug and alcohol use, and denied gang membership.
4 At sentencing, the parties made no amendments to the PSI.
5 The State argued in aggravation that defendant admitted to
Parson to cold-bloodedly killing his cousin in front of her
infant daughter, and initially intending to kill the infant
as well, merely to steal narcotics. The State argued that no
mitigating factor applied and particularly that defendant did
not act under provocation, and argued that defendant showed
no remorse. The State noted that defendant admitted his crime
to Parson on three occasions. Arguing that defendant
"would do this to his own cousin, what would he do to
someone else, " the State described defendant as a
"menace" and asked for the maximum sentence.
6 Defense counsel argued that defendant had no criminal
offenses or juvenile adjudications, had attended high school,
had a good upbringing, and denied using drugs or alcohol.
Counsel also noted that defendant was 15 years old at the
time of the offense, and asked the court to take that into
consideration in sentencing him.
7 The court noted that whatever sentence it imposed would not
return Brown to her daughter. The court found that
"in observing you on that tape, it was hard to believe
that you were only 15 years old. It's a world that is
completely unimaginable to me, a world that I don't
understand. At 15, you should have been in school worrying
about an ACT, an SAT, so you could go to college rather than
ripping and running the streets. It is apparent in the video
you were comfortable with Mr. Parson, a man your senior. You
felt very comfortable keeping his company. *** [Y]our cousin,
I never will forget the words that you said in that tape, you
didn't know them like that. I interpreted that to mean
that you weren't as close to that part of the family as
you were to others. But no one regardless deserve[s] to die
by the gun that you held in your hand. No one, regardless.
Kena was a young lady. It was unfortunate that she was ***
involved in an activity that she was involved in. *** Now
today we have a child that's motherless. I think I can
take that into consideration as far as aggravation is
concerned. *** Over what? Nonsense. Disrespect for life. And
that's what you did. You didn't appreciate life, you
didn't appreciate Kena Brown's life, and you
didn't appreciate yours because this is where you landed.
It was cold-blooded. Like they say out on the street, just
low down and dirty. You were 15. It's a hard way for you
to live and grow up now. Hard."
court sentenced defendant to 40 years' imprisonment.
After informing him of his appeal rights, the court remarked
that "[t]his is just a waste" because defendant was
"a bright, intelligent young man" who "could
have gone so much further that what you did on that
8 On direct appeal, defendant contended in relevant part that
the trial court improperly interjected the judge's
personal views, and considered a factor inherent in the
offense, in sentencing him. In affirming the conviction and
sentence, we found no abuse of discretion in the court's
40-year sentence. Noting that the sentence was in the middle
of the unextended sentencing range for first degree murder,
we found that the court's sentencing remarks were not
improper but demonstrated due consideration of the particular
circumstances of this case.
9 In his first postconviction petition in 2006, as amended by
counsel in 2010, defendant raised various claims. In relevant
part, he claimed that (1) the first degree murder statute is
unconstitutional because it has the same elements, but a
higher sentence, than second degree murder and (2) he was not
admonished about mandatory supervised release (MSR) at
sentencing, and his sentence should be reduced by the MSR
term. The court granted ...