People v. Smallwood

Order filed August 30, 2024. 2024 IL App (5th) 210407

Motion to publish granted

September 24, 2024. NO. 5-21-0407

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Madison County.

)

v. ) No. 18-CF-2336

)

ARTHUR E. SMALLWOOD, ) Honorable

) Kyle A. Napp,

Defendant-Appellant. ) Judge, presiding.

______________________________________________________________________________

PRESIDING JUSTICE VAUGHAN delivered the judgment of the court, with opinion.

Justices Cates and McHaney concurred in the judgment and opinion.

OPINION

¶1 Defendant, Arthur E. Smallwood, appeals the trial court’s dismissal of his petition for relief

from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401

(West 2020)). On appeal, he argues that the trial court’s sentence of mandatory life is not

authorized under section 5-4.5-95(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5-

4.5-95(a) (West 2018)) and is unconstitutional, as applied to him, pursuant to the proportionate

penalties clause of the Illinois Constitution and the eighth amendment of the United States

Constitution. For the following reasons, we affirm.

¶2 I. BACKGROUND

¶3 On August 9, 2018, defendant was charged, by indictment, with attempted first degree

murder in violation of sections 8-4(a) and 9-1(a)(1) of the Criminal Code of 2012 (720 ILCS 5/8-

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4(a), 9-1(a)(1) (West 2018)) (count I) and aggravated battery in violation of section 12-3.05(a)(1)

(id. § 12-3.05(a)(1)) (count II), 1 for stabbing Jan-Eric Andersson over 12 times in the back,

shoulder, and neck. On September 13, 2018, defendant’s counsel filed a motion to determine

defendant’s fitness to stand trial, alleging a bona fide doubt as to defendant’s fitness. On September

17, 2018, the court issued an order granting the motion and ordering a fitness evaluation. Dr. Cuneo

conducted the evaluation on October 3, 2018. In his report, filed on October 12, 2018, he diagnosed

defendant with malingering, unspecified depressive disorder, cocaine use disorder, alcohol use

disorder, cannabis use disorder, and unspecified personality disorder. Dr. Cuneo opined defendant

was fit to stand trial. A hearing to determine defendant’s fitness was held on October 31, 2018.

Following consideration of Dr. Cuneo’s report and the trial court’s inquiry and discussion with

defendant, the trial court issued an order finding defendant was fit to stand trial.

¶4 On April 29, 2019, the State filed a verified notice of its intention to seek a mandatory

natural life sentence based on defendant’s prior two Class X felony convictions, pursuant to the

habitual criminal sentencing statute (730 ILCS 5/5-4.5-95(a) (West 2018)). At trial, evidence was

submitted revealing that on August 8, 2018, defendant requested a cab at Bubby & Sissy’s bar in

Alton, Illinois. Mr. Andersson was dispatched from Alton’s Best Cabs (ABC) to pick up defendant.

After reaching defendant’s requested destination, defendant put Mr. Andersson in a chokehold and

stabbed him at least 18 times. In response, Mr. Andersson intermittently pressed on the gas and

brake pedals and swerved to try to shake defendant off. After defendant yelled to let him out of

the cab, Mr. Andersson slowed down, and defendant exited the car before the vehicle was stopped.

¶5 On July 18, 2019, the jury convicted defendant of attempted first degree murder. Defendant

had two prior Class X felony convictions, and pursuant to the habitual criminal statute (id.), he

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The State dismissed count II prior to the jury trial.

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was sentenced to mandatory natural life imprisonment on September 23, 2019. The presentence

investigation report stated that defendant conveyed he had received mental health treatment in the

past and that he was diagnosed with schizoaffective disorder when he was at Chestnut Health

Systems. Attached to the report were medical records from Chestnut Health Systems for an

October 20, 2016, date of service and records from Gateway Regional Medical Center for dates of

services on January 5, 2018, and January 28, 2016. Defendant provided a statement in allocution

at the sentencing hearing, in which he claimed ineffective assistance of counsel. The trial court

conducted a Krankel hearing and ultimately found defendant’s claims did not rise to the level

requiring the court to take further action. On direct appeal, this court affirmed defendant’s

conviction but reversed the trial court’s Krankel determination and remanded the case for a new

hearing on defendant’s posttrial ineffective assistance of counsel claim with new counsel. People

v. Smallwood, 2022 IL App (5th) 190416-U, ¶ 90.

¶6 On January 10, 2020, defendant filed a hand-written petition for relief from judgment

pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2020))

alleging that, as applied to him, his mandatory life sentence pursuant to section 5-4.5-95 of the

Code (730 ILCS 5/5-4.5-95 (West 2020)) violated the proportionate penalties clause of the Illinois

Constitution and the eighth amendment of the United States Constitution. Defendant argued that

he was intellectually disabled now and even more so when his two prior Class X felonies occurred

when he was 19 years old. In support of his position, defendant cited People v. Coty, 2018 IL App

(1st) 162383, ¶¶ 61-75, and argued it held that intellectually disabled persons should be treated

like juveniles because their intellectual disability diminished their culpability. He further argued

that on October 20, 2016, he was diagnosed with bipolar schizoaffective disorder. Citing WebMD,

defendant stated bipolar schizoaffective disorder included the following symptoms: delusions,

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hallucinations, depression, periods of manic mood, impaired communications, problems with

managing personal care, self-destructive dangerous behavior, agitations, a lack of emotion in facial

expressions and speech, and impaired occupational, academic, and social functioning. Defendant

argued that his mental condition should provide him with similar protections afforded to minors

under Miller v. Alabama, 567 U.S. 460 (2012). He also argued his prior Class X felonies should

not have been used to enhance his current sentence to natural life because he was not a fully mature

adult when the Class X felonies were committed. In support, defendant cited People v. House,

2019 IL App (1st) 110580-B, and argued that research in neurobiology and developmental

psychology showed that young adults’ brains do not finish developing until their mid-20s, making

young adults more like juveniles than mature adults. Finally, defendant argued that the State did

not provide notice of its intent to seek natural life imprisonment.

¶7 The petition was supported by defendant’s affidavit stating that his first Class X felony

occurred when he was 19, an age that the law now considers a minor. It further stated his judgment

was not fully developed at age 19, he did not fully understand or appreciate the consequences of

his conduct, and the convictions from when he was 19 years old should not be used against him

based on what is now known about juvenile and young-adult brains. The affidavit further provided

that defendant was molested when he was 5 years old, beaten by his mother from age 7 through

12, saw his 12-year-old aunt having sex with his mother’s boyfriend, saw his mother beaten by

several men from the age of 6 through 13, experimented with drugs and alcohol at age 13,

impregnated his girlfriend at age 15, and was abusive towards his girlfriend. The affidavit further

asserted that when defendant was 18 years old, he witnessed his brother get shot and killed, and

when defendant was 19 years old, he committed armed robbery, took the rap for his codefendant,

and went to prison for 9½ years. Finally, defendant’s affidavit stated that in 1997, he was convicted

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of attempted murder of a friend whom he hit on the head with a claw hammer after waking up to

the friend trying to unzip his pants. The affidavit contended defendant hit his friend because of his

prior molestation.

¶8 On February 3, 2021, the State filed a motion to dismiss defendant’s petition for relief from

judgment, arguing that Miller did not apply in the instant case because defendant was over the age

of 18 at the time of Class X convictions and was 54 years old when he committed the current

crime. The State further argued—citing People v. Mays, 176 Ill. App. 3d 1027 (1988)—that section

5-4.5-95 was repeatedly found constitutional. Finally, the State argued that defendant was provided

notice of the potential mandatory natural life sentence when the State filed its notice of intention

to seek a mandatory natural life sentence on April 29, 2019.

¶9 On March 2, 2021, defendant filed a response to the State’s motion to dismiss. The response

claimed that the current neuroscience was unavailable when section 5-4.5-95 was challenged in

Mays. The response further argued that considering the new science, the habitual criminal statute

was ripe for challenge as unconstitutional as applied to defendant because one or more of the

triggering offenses occurred prior to defendant turning 21 years old. In support, defendant cited

H.B. 3653, passed on January 13, 2021, which amended the statute on habitual criminals to

preclude consideration of the initial Class X offense unless the defendant was 21 years of age or

older when the offense was committed. The response further indicated that the State acknowledged

defendant’s life of abuse and trauma as well as his 2016 diagnosis of schizoaffective disorder prior

to the commission of the current crime. Finally, the response requested appointment of counsel.

¶ 10 At a video hearing held on April 15, 2021, counsel was appointed for defendant and was

ordered to respond to the State’s motion to dismiss within 90 days. On July 19, 2021, counsel

entered her appearance for defendant. On September 22, 2021, the court set the State’s motion to

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dismiss for hearing. Defendant’s counsel filed her Illinois Supreme Court Rule 651(c) (eff. July 1,

2017) certificate on December 15, 2021, and confirmed to the court at the hearing held the same

day that she was adopting the pleadings filed by defendant and had no additions or corrections for

those pleadings.

¶ 11 The State argued that the habitual offender statute was previously found constitutional, and

Miller did not apply to defendant’s case because he was over 18 when all the crimes were

committed. While acknowledging defendant alleged a mental illness, the State reminded the court

that defendant was found fit for trial after a fitness exam was requested by his counsel in this matter

and argued that having mental illness or trauma as a child did not absolve defendant of the sentence

entered on his conviction. The State further argued that notice of the intent to seek a mandatory

life sentence was filed in the case in addition to notifying defendant of that intent many times on

the record.

¶ 12 Defendant’s counsel cited Coty, 2018 IL App (1st) 162383, arguing the decision extended

Miller to those with mental illnesses and defendant’s mental illnesses were included in his petition.

Counsel further argued that defendant’s ability to stand trial was a different issue than whether

defendant should be sentenced as an adult without any mental disabilities.

¶ 13 Following argument, the trial court noted that defendant’s petition requested relief from

judgment pursuant to section 2-1401, stating that the purpose of those petitions was to bring

attention to facts unknown by the court at the time of the hearing and, if known, would have

prevented the entry of judgment. The court cited examples of the use of section 2-1401, including

postpartum depression or issues involving domestic abuse, and noted that neither were applicable

here. The court stated that even assuming the petitioner’s allegations were true, and that defendant

had a terrible childhood, those childhood circumstances did not qualify for a petition for relief

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from judgment. The court noted the State provided notice of its intent to seek lifetime

imprisonment and it was verified that defendant’s prior convictions occurred when he was over

the age of 18. The court found there was nothing in the petition that would change defendant’s

sentence at the time of sentencing, if known by the court at that time. Thereafter, the court

dismissed defendant’s petition for relief and advised defendant of his appeal rights.

¶ 14 II. ANALYSIS

¶ 15 Defendant timely appealed, arguing that his life sentence was unconstitutional as applied

to him. Subsequently, we allowed defendant leave to file a supplemental brief. The supplemental

brief argued that his sentence was unconstitutional in light of the 2021 amendments to section 5-

4.5-95(a)(4)(E) and that based on the interpretation of that statute in People v. Durant, 2024 IL

App (1st) 211190-B, and People v. Stewart, 2022 IL 126116, defendant’s 1983 conviction—which

he committed when he was 19 years old—could not be considered a predicate offense under the

habitual criminal provision. Because the petition was dismissed on the pleadings, we review the

dismissal of his section 2-1401 petition de novo. People v. Vincent, 226 Ill. 2d 1, 18 (2007).

¶ 16 We first address the trial court’s reason for dismissing defendant’s petition. Section 2-1401

provides relief from final orders and judgments “regardless of the nature of the order or judgment

from which relief is sought or of the proceedings in which it was entered.” 735 ILCS 5/2-1401(a)

(West 2020). Under section 2-1401, a defendant must show “proof, by a preponderance of

evidence, of a defense or claim that would have precluded entry of the judgment in the original

action and diligence in both discovering the defense or claim and presenting the petition.” Vincent,

226 Ill. 2d at 7-8. A proper section 2-1401 petition includes any “[v]oidness challenges stemming

from the unconstitutionality of a criminal statute under the proportionate penalties clause.” People

v. Ligon, 2016 IL 118023, ¶ 9. Therefore, we disagree with the trial court’s finding that defendant’s

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section 2-1401 petition was an improper vehicle to bring his proportionate penalties claim. Our

review, however, is of the court’s judgment, regardless of whether its reasoning was correct.

People v. Burchell, 2018 IL App (5th) 170079, ¶ 9. We may affirm for any basis in the record. Id.

¶ 17 Before we address defendant’s proportionate penalties claim, we consider the issue raised

in his supplemental brief. It is not entirely clear whether defendant’s supplemental brief asserts

that he is entitled to resentencing because he did not qualify for a natural life sentence under section

5-4.5-95(a) or because Durant and Stewart’s interpretation of the statute supports defendant’s

argument that a mandatory life imprisonment is unconstitutional as applied to him. We

nevertheless find both arguments unsuccessful.

¶ 18 Stewart and Durant were not published until after defendant filed this appeal. However,

citing Durant, 2024 IL App (1st) 211190-B, ¶¶ 39-40, defendant argues the holdings of Stewart

and Durant apply retroactively to cases on collateral review and that, pursuant to those cases, his

Class X felony committed when he was 19 years old cannot be a predicate offense under the

habitual criminal statute. We disagree.

¶ 19 Stewart addressed a different subsection of the statute at issue in this case. It interpreted

subsection (b) of section 5-4.5-95, which states:

“ ‘When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2

felony, after having twice been convicted in any state or federal court of an offense

that contains the same elements as an offense now (the date the Class 1 or Class 2

felony was committed) classified in Illinois as a Class 2 or greater Class felony and

those charges are separately brought and tried and arise out of different series of

acts, that defendant shall be sentenced as a Class X offender. This subsection does

not apply unless:

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(1) the first felony was committed after February 1, 1978 (the effective

date of Public Act 80-1099);

(2) the second felony was committed after conviction on the first; and

(3) the third felony was committed after conviction on the second.’ ”

Stewart, 2022 IL 126116, ¶ 5 (quoting 730 ILCS 5/5-4.5-95(b) (West 2016)).

¶ 20 Public Act 101-652 (eff. July 1, 2021) amended section 5-4.5-95(b)(4) of the Code to

provide that the first qualifying offense for Class X sentencing must have been “ ‘committed when

the person was 21 years of age or older.’ ” Id. ¶ 19 (quoting Pub. Act 101-652 (eff. July 1, 2021)

(amending 730 ILCS 5/5-4.5-95(b)(4))). Stewart found that, prior to 2021, section 5-4.5-95(b) was

ambiguous because it was silent as to whether the legislature intended a prior felony conviction to

be a qualifying offense for Class X sentencing if the same offense would have resulted in a juvenile

adjudication had it been committed on the date of the present offense and such silence resulted in

an appellate court split. Id. ¶¶ 16-18. Due to its finding of ambiguity, the Stewart court found the

amendment to section 5-4.5-95(b) under Public Act 101-652 did not substantively change the law

but rather clarified that the legislature did not intend for convictions of juveniles in adult court to

be considered qualifying offenses for Class X sentencing. Id. ¶¶ 18, 22. As such, it determined that

the defendant’s Class X sentence imposed in 2017 was unauthorized under section 5-4.5-95(b)

because his 2013 conviction for an offense committed when he was 17 years old was not a

qualifying offense for Class X sentencing under the previous version of section 5-4.5-95(b). Id.

¶¶ 22-23.

¶ 21 The statute at issue in this case is section 5-4.5-95(a) of the Code that was in effect, in

2019, when defendant was sentenced. That statute states, in pertinent part:

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“(1) Every person who has been twice convicted in any state or federal court

of an offense that contains the same elements as an offense now (the date of the

offense committed after the 2 prior convictions) classified in Illinois as a Class X

felony, criminal sexual assault, aggravated kidnapping, or first degree murder, and

who is thereafter convicted of a Class X felony, criminal sexual assault, or first

degree murder, committed after the 2 prior convictions, shall be adjudged an

habitual criminal.

(2) The 2 prior convictions need not have been for the same offense.

(3) Any convictions that result from or are connected with the same

transaction, or result from offenses committed at the same time, shall be counted

for the purposes of this Section as one conviction.

(4) This Section does not apply unless each of the following requirements

are satisfied:

(A) The third offense was committed after July 3, 1980.

(B) The third offense was committed within 20 years of the date that

judgment was entered on the first conviction; provided, however, that time

spent in custody shall not be counted.

(C) The third offense was committed after conviction on the second

offense.

(D) The second offense was committed after conviction on the first

offense.

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(5) Anyone who, having attained the age of 18 at the time of the third

offense, is adjudged an habitual criminal shall be sentenced to a term of natural life

imprisonment.” 730 ILCS 5/5-4.5-95(a) (West 2018).

¶ 22 The same public act discussed in Stewart also amended section 5-4.5-95(a) to provide that

the first qualifying offense, for imposing a natural life sentence on a defendant adjudged a habitual

criminal, must have been “committed when the person was 21 years of age or older.” Pub. Act

101-652 (eff. July 1, 2021) (amending 730 ILCS 5/5-4.5-95(a)(4)(E), (5)). In Durant, 2024 IL App

(1st) 211190-B, ¶ 30, the First District found that the amendments of Public Act 101-652

clarified—rather than changed—section 5-4.5-95(a) of the Code. It reasoned that “as a matter of

logic, Stewart’s discussion of the legislative intent behind Public Act 101-652’s amendment to the

Class X provision in subsection (b) cannot be viewed in isolation from the legislature’s

simultaneous and substantially identical amendment to the habitual criminal provision.” Id. ¶ 31.

Durant found,

“Given these circumstances, it is hard to conceive how the legislature could have

intended one of the amendments to be a mere clarification of existing law (that

applied retroactively), while having a very different intent for the other identically

worded amendment. Indeed, it would be incongruous and defy common sense to

find the legislature did not act with similar intent when it added identical provisions

at the very same time in the same public act.” Id. ¶ 32.

¶ 23 In doing so, Durant acknowledged that the habitual criminal provision of section 5-4.5-

95(a) differed from the Class X sentencing of section 5-4.5-95(b) in that “the version of the

habitual criminal provision immediately preceding Public Act 101-652 (in effect from 2016 to

2021), indicated that persons as young as 18 could be adjudged a habitual criminal.” Id. ¶ 35. It

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noted, however, that “[b]efore 2016, the habitual criminal provision did not specify any minimum

age.” Id. It therefore rejected that “the ‘age of 18’ language in the immediately preceding version

of the habitual criminal provision means that the new language added by Public Act 101-652 must

be regarded as a substantive change in law.” Id. ¶¶ 36-37. In light of the legislative history of both

subsections, Durant found

“the legislature originally intended that convictions for crimes under age 21 should

not count toward either habitual criminal status under subsection (a) or Class X

sentencing under subsection (b). Then, from 2016 until 2021, the legislature made

subsection (a) more punitive by grafting the ‘age of 18’ language into the habitual

criminal provision. In 2021, Public Act 101-652 restored subsections (a) and (b) to

their original intended meaning, explicitly clarifying that only offenses committed

after the age of 21 should count toward eligibility for habitual criminal status or

Class X sentencing.” (Emphasis in original.) Id. ¶ 37.

¶ 24 Justice Lavin dissented in Durant. He found the previous version of the habitual criminal

statute under which the defendant was sentenced was not ambiguous and clearly applied to

defendant. Id. ¶ 56 (Lavin, J., dissenting). Justice Lavin further found that even if the pre-2016

version of the habitual criminal statute was ambiguous, the 2021 amendment did not apply

retroactively because the 2021 amendment substantively changed the 2016 version that only

required defendant to be 18 years old at the time of the third offense. Id. ¶¶ 57-58 (Lavin, J.,

dissenting). He concluded, “Given the crucial differences between the legislative history behind

subsection 5-4.5-95(a) and subsection (b), Stewart’s reasoning regarding subsection (b) cannot

logically be applied to the changes made to subsection (a) by Public Act 101-652 (eff. July 1,

2021) (amending 730 ILCS 5/5-4.5-95(a), (b)).” Id. ¶ 59 (Lavin, J., dissenting).

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¶ 25 While the instant case and Durant differ in that Durant concerned the pre-2016 habitual

criminal sentencing statute that contained no age requirement and this case concerns the post-2016

version that includes the requirement that a defendant be 18 years of age by the third qualifying

offense, we agree with Justice Lavin’s dissent. Stewart determined the pre-2021 version of section

5-4.5-95(b) was ambiguous, and the legislature clarified that ambiguity with the 2021 amendments

such that the pre-2021 version was always intended to exclude offenses committed when a

defendant was 17 years old. Stewart, 2022 IL 126116, ¶ 22. As such, Stewart’s conclusion applies

here only if the amendments under Public Act 101-652 also clarified an ambiguity in section 5-

4.5-95(a).

¶ 26 Prior to 2016, section 5-4.5-95(a) did not include any age requirement for a defendant to

be sentenced to natural life imprisonment under that statute. 730 ILCS 5/5-4.5-95(a) (West 2014).

However, in 2016, Public Act 99-69 (eff. Jan. 1, 2016) amended section 5-4.5-95(a) to require that

a defendant be 18 years of age by the third qualifying offense and be adjudged a habitual criminal

in order to be sentenced to natural life. Defendant here was sentenced under the statute containing

the 2016 amendments.

¶ 27 The legislature’s explicit 18 years of age at the time of third offense requirement, effective

in 2016, distinguishes section 5-4.5-95(a) from section 5-4.5-95(b) and makes Stewart

inapplicable. There is no reasonable way to read the 2016 amendments other than to conclude that

the defendant must be 18 years of age or older by the third qualifying offense. Where a defendant

need only be 18 years of age by the third offense, it logically follows that a defendant could be

younger than 18 years of age for the first and second qualifying offenses and still be sentenced to

natural life imprisonment under the habitual criminal sentencing statute. As such, there is no

ambiguity under the relevant version of section 5-4.5-95(a) as to whether an offense committed

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when a defendant was under the age of 18 constitutes a qualifying first or second offense under

the habitual criminal sentencing statute. Because there is no ambiguity, we do not look to

subsequent amendments—as Stewart—or other extrinsic aids of statutory construction. See People

v. Marshall, 242 Ill. 2d 285, 292 (2011) (limiting the ability to look beyond the statutory language

to ascertain legislative intent only if the statute is ambiguous). Rather, we adhere to the plain

language of the statute. See In re Kelan W., 2022 IL 128031, ¶ 11 (where the statutory language is

clear and unambiguous, we must apply the statute as written without resorting to extrinsic aids of

statutory construction).

¶ 28 Oddly, the Durant majority does not find that the 2016 version of section 5-4.5-95(a) is

ambiguous. Rather it finds the Stewart analysis applicable to 5-4.5-95(a) because “it would be

incongruous and defy common sense to find the legislature did not act with similar intent when it

added identical provisions at the very same time in the same public act.” Durant, 2024 IL App

(1st) 211190-B, ¶ 32. Such reasoning, however, would render the legislature’s 2016 amendment

under Public Act 99-69 meaningless.

¶ 29 Assuming arguendo that the pre-2016 version of section 5-4.5-95(a)—which was at issue

in Durant—was ambiguous, the logic of Stewart still supports that Public Act 101-652

substantively changed section 5-4.5-95(a) because we would look to the legislature’s subsequent

amendments to resolve the ambiguity of the statute. The subsequent amendment to section 5-4.5-

95(a) occurred in 2016, not 2021. Thus, under the logic of Stewart, Public Act 99-69 clarified that

section 5-4.5-95(a) always allowed for natural life imprisonment for a defendant who committed

qualifying offenses under the age of 18 as long as the defendant was 18 years of age by the third

qualifying offense. While it may appear to be incongruous to find the same language in the same

act as clarification for one subsection and not another subsection, we cannot ignore the clear,

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unambiguous plain language of section 5-4.5-95(a) that allowed for natural life sentencing if a

habitual criminal was 18 years of age at the time of the third qualifying offense before Public Act

101-652 was enacted.

¶ 30 Accordingly, even if Public Act 101-652 was meant to restore the original pre-2016 intent

of the legislature—as Durant believes (Durant, 2024 IL App (1st) 211190-B, ¶ 30)—Public Act

101-652 substantively changed the age requirements of section 5-4.5-95(a), rather than clarified

it. The amendments in Public Act 101-652 and Stewart therefore do not control the interpretation

of section 5-4.5-95(a) prior to 2021. Because defendant here was sentenced in 2019 and 18 years

of age when he committed the third qualifying offense under the habitual criminal sentencing

statute, his sentence was authorized by section 5-4.5-95(a).

¶ 31 Stewart and Durant also provide no support for defendant’s constitutional argument on

appeal. Defendant contends his natural life imprisonment violates the proportionate penalties

clause and eighth amendment as applied to him based on his mental illness. While Stewart and

Durant interpret the habitual criminal sentencing statute, neither case discussed whether an

alternative interpretation of that statute would be unconstitutional. Accordingly, Stewart and

Durant do not impact our analysis of defendant’s as-applied constitutional challenge.

¶ 32 We next address defendant’s as-applied constitutional argument under the proportionate

penalties clause. “It is within the legislative province to define offenses and determine the penalties

required to protect the interests of our society.” People v. Taylor, 102 Ill. 2d 201, 206 (1984). The

proportionate penalties clause of the Illinois Constitution states, “All penalties shall be determined

both according to the seriousness of the offense and with the objective of restoring the offender to

useful citizenship.” Ill. Const. 1970, art. I, § 11. “All statutes carry a strong presumption of

constitutionality.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). “[T]he party challenging the

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statute must clearly establish that it violates the constitution.” Id. (citing People v. Malchow, 193

Ill. 2d 413, 418 (2000)). A penalty violates the proportionate penalties clause if it is so severe that

it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral

sense of the community. Id. at 521.

¶ 33 Statutes that address recidivism are constitutional exercises of the “ ‘State’s police power

to protect our society from habitually violent and heinous criminals.’ ” People v. Cummings, 351

Ill. App. 3d 343, 348 (2004) (quoting People v. McNeil, 125 Ill. App. 3d 876, 884 (1984)). Implicit

in these statutes “ ‘is a legislative determination that a three-time offender should be removed from

society since he is impervious to the rehabilitative efforts of the State.’ ” Id. (quoting People v.

Hartfield, 137 Ill. App. 3d 679, 692 (1985)). The statutes designed to eradicate recidivism have

repeatedly been upheld on claims of unconstitutionality. See People v. Tobias, 125 Ill. App. 3d

234, 240-42 (1984); People v. Cardenas, 209 Ill. App. 3d 217, 232 (1991); People v. Gaston, 259

Ill. App. 3d 869, 877 (1994). Defendant here argues that the mandatory nature of the recidivism

sentencing statute at issue is unconstitutional as applied to him based on his claim that his diagnosis

of schizoaffective disorder rendered him eligible for Miller protections.

¶ 34 In Miller, 567 U.S. at 489, the United States Supreme Court held that the eighth amendment

prohibited mandatory life imprisonment sentences for juveniles without parole. Miller did not

prohibit life sentences but required that sentencing courts have discretion in sentencing juveniles

after considering the juvenile’s youth and the attendant characteristics of youth. Jones v.

Mississippi, 593 U.S. 98, 108-09 (2021). Miller was “based in part upon the lesser culpability of

youth” but was principally founded upon transient characteristics that could be reformed as a

person aged and neurological development occurred. People v. Coty, 2020 IL 123972, ¶ 39.

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¶ 35 Miller applies only where the defendant was a juvenile at the time of the crime. However,

the Illinois Supreme Court has indicated that defendants are not foreclosed from asserting “as-

applied Miller” claims. See People v. Clark, 2023 IL 127273, ¶ 87 (“this court has not foreclosed

‘emerging adult’ defendants between 18 and 19 years old from raising as-applied proportionate

penalties clause challenges to life sentences based on the evolving science on juvenile maturity

and brain development” (citing People v. Thompson, 2015 IL 118151, ¶¶ 43-44, and People v.

Harris, 2018 IL 121932, ¶¶ 1, 48)). An as-applied claim requires a party to establish the statute is

unconstitutional as applied to the party’s specific facts or circumstances. People v. House, 2021

IL 125124, ¶ 27.

¶ 36 Many cases involving as-applied Miller claims address whether a young adult offender is

entitled to Miller protections because young adults’ brains are more like a juvenile’s than an

adult’s. Thompson, 2015 IL 118151, ¶¶ 1, 44; Harris, 2018 IL 121932, ¶¶ 1, 48; House, 2021 IL

125124, ¶¶ 29, 32. However, in Coty, 2020 IL 123972, the Illinois Supreme Court addressed an

as-applied Miller claim in a different context, i.e., a defendant with mental disability. 2

¶ 37 In Coty, the court determined that mandatory life imprisonment for repeat sexual offenders

who are intellectually disabled did not violate the proportionate penalties clause. Id. ¶¶ 42-44. In

doing so, the court looked at “culpability, future dangerousness, and rehabilitative potential.” Id.

¶ 32. It noted that rehabilitative potential was “particularly important.” Id.

¶ 38 Based on Coty and the basis for Miller, for a defendant to successfully argue an as-applied

Miller claim, he must explain how his specific circumstances excuse culpability and, more

importantly, how the circumstances are transient and could be remedied over time. See id. ¶¶ 32,

2

We note in Coty, the Illinois Supreme Court reversed the First District decision (Coty, 2018 IL

App (1st) 162383) that defendant relied on in the lower court. Coty, 2020 IL 123972, ¶¶ 1, 52-53.

17

39. Thus, defendant here needed to show that his mental illness of schizoaffective disorder reduced

his culpability and could be reformed over time.

¶ 39 Defendant contends, unlike the intellectually disabled discussed in Coty, mentally ill

individuals are less culpable than an unimpaired person and can change over time with proper

treatment. We note that, on appeal, defendant relies upon a criminal justice article, addressing how

to reduce recidivism for those with mental health issues, authored by The Council of State

Governments. However, because the article was not presented below, we refuse to consider it on

appeal. See In re R.M., 2022 IL App (4th) 210426, ¶ 46.

¶ 40 The evidence in the record to support defendant’s petition reveals that defendant self-

reported his diagnosis of schizoaffective disorder in 2016. The Chestnut Health Systems medical

records containing defendant’s self-reported condition also revealed self-reported claims of visual

and auditory hallucinations, and prior suicide attempts. However, the records indicate that

defendant attributed his hallucinations to his alcohol and drug use. Notably, absent from the

records is a doctor diagnosing defendant with schizoaffective disorder. 3

¶ 41 Even assuming defendant’s self-reported schizoaffective disorder was sufficient to

establish he suffered from the mental illness, there is nothing in the record or his petition to

conclude this illness made him less culpable. Defendant’s petition provided every possible

symptom of schizoaffective disorder, as listed on WebMD, but provided no evidence that

defendant actually incurred any symptoms beyond those contained in his mental health records,

i.e., hallucinations and symptoms of depression. Defendant contends that because serious mental

illness is a factor in mitigation to be considered at sentencing (see 730 ILCS 5/5-5-3.1(a)(16) (West

3

We note defendant was diagnosed with other mental illnesses, but he did not rely on those

diagnoses to argue Miller applies to him in either his petition or on appeal.

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2022)), Illinois law recognizes offenders with a serious mental illness have reduced culpability.

This argument is unpersuasive for two reasons. First, section 5-5-3.1(a)(16) of the Code provides

that it is a mitigating factor when “a serious mental illness *** substantially affected [a

defendant’s] ability to understand the nature of his or her acts or to conform his or her conduct to

the requirements of the law.” Id. As explained above, defendant failed to explain how his mental

illness reduced his culpability or affected his ability to conform to the law. Second, the Illinois

Supreme Court previously explained that “information about a defendant’s mental or

psychological impairments is not inherently mitigating.” (Internal quotation marks omitted.)

People v. Ballard, 206 Ill. 2d 151, 190 (2002); People v. Robinson, 2021 IL App (1st) 192289,

¶ 57. “A judge or jury considering evidence of this nature at sentencing might view the information

as either mitigating or aggravating, depending, of course, on whether the individual hearing the

evidence finds that it evokes compassion or demonstrates possible future dangerousness.” People

v. Thompson, 222 Ill. 2d 1, 42-43 (2006). Accordingly, defendant failed to sufficiently show that

schizoaffective disorder reduced his culpability.

¶ 42 More importantly, nothing in the petition explains or supports the conclusion that

schizoaffective disorder, and the disorder with respect to defendant, was treatable. While the

medical records included treatment recommendations for the other mental illnesses diagnosed by

medical facilities, nothing indicated a success rate or how the treatment would affect defendant’s

alleged schizoaffective disorder or his future behavior. Further undermining defendant’s petition

is the fact that his medical records revealed that he was self-aware of his mental health issues but

noncompliant with his treatment. Even when defendant was compliant with treatment, there was

no evidence that his treatment adequately controlled his other mental illnesses.

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¶ 43 We find this case comparable to Robinson, 2021 IL App (1st) 192289. The defendant in

Robinson demonstrated that he suffered from bipolar disorder, PTSD, depression, antisocial

personality disorder, and insomnia. Id. ¶ 56. However, defendant failed to show how his mental

illnesses reduced his culpability as compared to a typical defendant. Id. He also failed to provide

any basis to conclude his mental health conditions were treatable such that he had an increased

possibility of rehabilitation. Id. ¶ 58. The court explained there was no evidence that the treatment

defendant received “adequately controlled his mental illness or reduced his tendency to defy

authority and engage in violent behavior.” Id. Moreover, there was evidence that defendant was

unwilling to comply with treatment. Id. For these reasons, Robinson denied defendant’s claim that

his mandatory life sentence was unconstitutional as applied to him. Id. ¶¶ 56-58, 64.

¶ 44 Like the defendant in Robinson, defendant here failed to sufficiently plead and prove how

his mental illness rendered him less culpable of his crime or that treatment would allow him to

achieve rehabilitation. His as-applied proportionate penalties argument therefore fails. Likewise,

because he failed to show his sentence violated the proportionate penalties clause, his eighth

amendment claim also fails. See Coty, 2020 IL 123972, ¶ 45 (“if a sentence passes muster under

the proportionate penalties clause ***, then it would seem to comport with the contemporary

standards of the eighth amendment”).

¶ 45 Defendant requests this court remand for an evidentiary hearing if we find insufficient

information regarding his condition. We decline to do so. Defendant and his counsel had ample

opportunity to sufficiently plead his as-applied claim and attach supporting evidence. Both failed

to do so and relied on the medical records attached to defendant’s presentence investigation report.

Such evidence was insufficient to show defendant’s reduced culpability and ability to reform his

transient characteristics over time. “A defendant who has an adequate opportunity to present

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evidence in support of an as-applied, constitutional claim will have his claim adjudged on the

record he presents.” Id. ¶ 22. Therefore, we affirm the trial court’s dismissal of defendant’s petition

for relief from judgment.

¶ 46 III. CONCLUSION

¶ 47 For the foregoing reasons, we affirm the trial court’s dismissal of defendant’s motion for

relief from judgment.

¶ 48 Affirmed.

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____________________________________________________________________________

People v. Smallwood, 2024 IL App (5th) 210407

____________________________________________________________________________

Decision Under Review: Appeal from the Circuit Court of Madison County, No. 18-CF-

2336, the Hon. Kyle A. Napp, Judge, presiding.

____________________________________________________________________________

Attorneys James E. Chadd, Douglas R. Hoff, Manuela Hernandez, of State

for Appellate Defender’s Office of Chicago, for Appellant.

Appellant:

_____________________________________________________________________________

Attorneys Thomas A. Haines, State’s Attorney, of Edwardsville, IL, Patrick

for Delfino, Patrick D. Daly, Becky A. Ray of State’s Attorneys

Appellee: Appellate Prosecutor’s Office of Mt. Vernon, for the Appellee.

_____________________________________________________________________________

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