The opinion
NOTICE 2023 IL App (4th) 220693-U
This Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-22-0693 June 13, 2023
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Winnebago County
BRIAN O. SIMMONS, ) No. 96CF2965
Defendant-Appellant. )
) Honorable
) Joseph G. McGraw,
) Judge Presiding.
______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court.
Justices Steigmann and Doherty concurred in the judgment.
ORDER
¶1 Held: The trial court committed no error in denying defendant leave to file a successive
postconviction petition.
¶2 Defendant, Brian O. Simmons, appeals the trial court’s denial of his pro se request
for leave to file a successive postconviction petition. He argues he made a prima facie showing of
cause and prejudice in connection with his failure to previously raise a claim that his natural life
sentence, imposed pursuant to the Habitual Criminal Act (720 ILCS 5/33B-1 (West 1996)
(recodified as amended at 730 ILCS 5/5-4.5-95(a))), violates the proportionate penalties clause of
the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Defendant contends that recent amendments
to the Habitual Criminal Act now make it inapplicable to offenders, like him, whose prior
convictions were committed when they were under age 21. We affirm.
¶3 I. BACKGROUND
¶4 Following a June 1997 bench trial, defendant was found guilty of armed robbery
(720 ILCS 5/18-2(a) (West 1996)) and unlawful possession of a weapon by a felon (id. § 24-
1.1(a)). At trial, the State’s evidence showed that on the evening of October 20, 1996, defendant,
who was then 24 years old, and his codefendant, Landis Simon, entered a Kentucky Fried Chicken
restaurant while armed with firearms. They ordered the restaurant’s owner to turn over money
from cash register drawers and a safe, took money and jewelry from customers, and fired shots
inside the restaurant. The police pursued the men as they fled the scene. Simon was shot and
wounded by an officer during the chase. Defendant escaped and was arrested later.
¶5 Prior to sentencing, the State filed a verified statement, requesting the trial court
sentence defendant to life in prison as a habitual offender. At the time of defendant’s sentencing,
the Habitual Criminal Act provided as follows:
“(a) Every person who has been twice convicted *** of an offense that
contains the same elements as an offense now classified in Illinois as a Class X
felony, *** and is thereafter convicted of a Class X felony, *** shall be adjudged
an habitual criminal.
(b) The 2 prior convictions need not have been for the same offense.
(c) Any convictions which 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.
(d) This Article shall not apply unless each of the following requirements
are satisfied:
(1) the third offense was committed after the effective date of this
Act;
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(2) 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;
(3) the third offense was committed after conviction on the second
offense;
(4) the second offense was committed after conviction on the first
offense.
(e) Except when the death penalty is imposed, anyone adjudged an habitual
criminal shall be sentenced to life imprisonment.” Id. § 33B-1.
In its filing, the State noted defendant had been convicted of armed robbery, a Class X felony
offense, and it asserted that he had two prior Class X felony convictions—one for home invasion
in April 1989 (case No. 89-CF-247), and a second for armed robbery in May 1993 (case No. 93-
CF-171).
¶6 In November 1997, the trial court adjudged defendant a habitual criminal and
sentenced him to life in prison for armed robbery. Although the court found defendant’s conviction
for unlawful possession of a weapon by a felon “merged” with his armed robbery conviction, it
also imposed a seven-year, concurrent prison sentence for that offense. Defendant filed a motion
to reconsider his sentences, arguing, in part, that the Habitual Criminal Act was unconstitutional
and violated the proportionate penalties clause of the Illinois Constitution. The court denied the
motion, and defendant appealed.
¶7 On direct appeal, defendant argued his conviction and sentence for unlawful
possession of a weapon by a felon had to be vacated because it arose from the same act as his
armed robbery conviction. The State conceded the error and the appellate court agreed. It vacated
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defendant’s conviction and sentence for unlawful possession of a weapon by a felon but otherwise
affirmed the trial court’s judgment. See People v. Simmons, 2-98-0201 (1999) (unpublished order
under Illinois Supreme court Rule 23(c)).
¶8 In July 2000, defendant filed a pro se petition for postconviction relief, alleging his
appellate counsel was ineffective on direct appeal for failing to present newly discovered evidence
of his actual innocence. The trial court advanced defendant’s petition to the second stage of
postconviction proceedings; however, in April 2003, it granted the State’s motion to dismiss the
petition. Defendant did not appeal the court’s dismissal.
¶9 In May 2004, defendant sought leave to file a successive postconviction petition.
He alleged he was actually innocent and that the State knowingly used perjured testimony to obtain
his conviction. The trial court granted defendant leave to file his petition and appointed counsel.
In May 2005, defendant filed an amended postconviction petition, alleging the State knowingly
used perjured testimony and made false promises to his codefendant, thereby denying defendant
“his best source of exculpatory evidence.” In August 2012, defendant filed a second amended
postconviction petition, adding a claim of actual innocence based on proposed testimony from his
brother. Again, the trial court dismissed defendant’s postconviction claims on the State’s motion.
Defendant appealed, and the appellate court affirmed the trial court’s judgment. People v.
Simmons, 2015 IL App (2d) 131147-U.
¶ 10 In July 2022, defendant moved for a second time to file a successive postconviction
petition and sought to raise a claim that his life sentence violated the proportionate penalties clause
of the Illinois Constitution as applied to him. He argued that under current Illinois law, he could
not be found to be a habitual criminal and, thus, subject to a natural life sentence. Defendant noted
that the Habitual Criminal Act was amended in 2021 to require that the first predicate offense that
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would subject a person to being adjudged a habitual criminal “was committed when the person
was 21 years of age or older.” See Pub. Act 101-652, § 10-281 (eff. July 1, 2021) (amending 730
ILCS 5/5-4.5-95(a)). Further, he alleged that he was 16 years old when he committed his first
predicate felony and 20 years old when he committed his second. According to defendant, the
2021 amendment to the Habitual Criminal Act reflected (1) a growing understanding of the link
between youth and brain immaturity, impulse control, and decision making; (2) “a growing
recognition that young people’s brains continues [sic] to develop well into their twenties”; and
(3) that the potential for rehabilitation must be considered by a sentencing court.
¶ 11 Defendant alleged he could not have raised his sentencing challenge in either of his
previous postconviction proceedings as the legislature did not amend the Habitual Criminal Act to
exclude crimes committed by persons under the age of 21 until many years after those proceedings
were concluded. Further, he maintained that he suffered prejudice from not having his sentencing
issue raised because, under the current version of the Habitual Criminal Act, he was no longer
eligible for sentencing as a habitual criminal. Defendant argued the proportionate penalties clause
embodied evolving standards of decency. He asserted that the 2021 amendment to the Habitual
Criminal Act showed “the legislature recognized that the concepts of elemental decency and
fairness that shape the moral sense of community *** had evolved tremendously from where
things stood in 1997 when [he] was sentenced.”
¶ 12 In July 2022, the trial court denied defendant’s request for leave to file his
successive petition, finding defendant failed to show either cause or prejudice in connection with
his failure to previously raise his claim.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
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¶ 15 On appeal, defendant argues the trial court erred by denying his request for leave
to file a successive postconviction petition. He reiterates his claim that his life sentence, entered
after he was adjudged a habitual criminal, violated the proportionate penalties clause of the Illinois
Constitution because (1) the current version of the Habitual Criminal Act requires qualifying
felony offenses to have been committed when the defendant was 21 years of age or older and (2) he
was under the age of 21 when he committed his predicate felony offenses. Defendant
acknowledges that to file a successive postconviction petition, he had to show both cause for failing
to raise his claim in a prior postconviction proceeding and prejudice resulting from that failure. He
maintains he sufficiently demonstrated cause because “the statutory amendment he relied upon
took effect after he filed his previous post[ ]conviction petitions.” Defendant argues prejudice is
shown because “he no longer has the necessary predicate convictions to qualify him for a life
sentence under the Habitual Criminal Act.”
¶ 16 A. Applicable Law
¶ 17 Under the Post-Conviction Hearing Act (Act), an imprisoned defendant may
challenge the proceedings that resulted in his or her conviction by asserting that there was a
substantial denial of his or her constitutional rights in those proceedings. 725 ILCS 5/122-1(a)(1)
(West 2020). However, the Act contemplates the filing of only a single postconviction petition.
People v. Dorsey, 2021 IL 123010, ¶ 32, 183 N.E.3d 715. “As a result, a defendant faces immense
procedural default hurdles when bringing a successive postconviction petition.” (Internal
quotations omitted.) Id.
¶ 18 A defendant “must obtain leave of court to file a successive petition.” Id. “To obtain
leave of court, a defendant must demonstrate ‘cause’ for the failure to raise the claim in the initial
petition and that ‘prejudice’ resulted from that failure.” Id.
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“The Act provides that ‘cause’ is shown by a defendant identifying an objective
factor that impeded the ability to raise a specific claim during the initial
postconviction proceeding; ‘prejudice’ is shown by demonstrating that the claim
not raised during the initial proceeding so infected the trial that the resulting
conviction or sentence violated due process.” Id. (citing 725 ILCS 5/122-1(f) (West
2014)).
¶ 19 A defendant must make a prima facie showing of cause and prejudice (People v.
Bailey, 2017 IL 121450, ¶ 24, 102 N.E.3d 114), and both prongs of the cause-and-prejudice
standard must be satisfied for the defendant to prevail (People v. Davis, 2014 IL 115595, ¶ 14, 6
N.E.3d 709). Further, “[l]eave of court to file a successive petition should be denied when it is
clear from a review of the successive petition and supporting documents that the claims raised fail
as a matter of law or are insufficient to justify further proceedings.” Dorsey, 2021 IL 123010, ¶ 33.
The trial court’s denial of a motion for leave to file a successive postconviction petition is reviewed
de novo. Id.
¶ 20 The proportionate penalties clause of the Illinois Constitution provides that “[a]ll
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. One way of
establishing a proportionate penalties clause violation is for a defendant to show that an imposed
penalty “is cruel, degrading, or so wholly disproportionate to the offense that it shocks the moral
sense of the community.” People v. Klepper, 234 Ill. 2d 337, 348, 917 N.E.2d 381, 386 (2009).
¶ 21 Whether a particular punishment is cruel, degrading, or shocking to the moral sense
of the community is based on evolving societal standards “of elemental decency and fairness which
shape the ‘moral sense’ of the community.” People v. Leon Miller, 202 Ill. 2d 328, 339, 781 N.E.2d
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300, 307-08 (2002). Additionally, proportionality review under such evolving standards should
largely be informed by objective evidence. Id.; see People v. Moore, 2020 IL App (4th) 190528,
¶ 31, 170 N.E.3d 204 (“We may determine whether a sentence shocks the moral sense of the
community by considering both objective evidence and the community’s changing standard of
moral decency.” (Internal quotation marks omitted.)).
¶ 22 B. Cause
¶ 23 Defendant argues on appeal that he established cause for his failure to previously
raise his proportionate penalties claim because the claim “was not available to him prior to the
2021 amendment to the [Habitual Criminal] Act.” As set forth above, at the time of defendant’s
1997 sentencing, the Habitual Criminal Act provided that a person could be adjudged a habitual
criminal and sentenced to life in prison if he or she had “been twice convicted *** of an offense
that contains the same elements as an offense now classified in Illinois as a Class X felony ***
and is thereafter convicted of a Class X felony *** committed after the [two] prior convictions.”
720 ILCS 5/33B-1 (West 1996) (recodified as amended at 730 ILCS 5/5-4.5-95). The statute then
in effect did not contain age-related requirements. Id. On appeal, defendant does not dispute that,
at the time of his sentencing, his criminal history qualified him for sentencing as a habitual
criminal.
¶ 24 Many years later, in 2021, the Habitual Criminal Act was amended to require that
the first predicate offense used to adjudicate a person as a habitual criminal “was committed when
the person was 21 years of age or older.” See Pub. Act 101-652, § 10-281 (eff. July 1, 2021)
(amending 730 ILCS 5/5-4.5-95(a)). Defendant argues he would not qualify for sentencing as a
habitual offender under this current version of the Habitual Criminal Act because his predicate
felony offenses were committed when he was 16 and 20 years of age. He maintains the 2021
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amendment “reflects society’s evolving understanding of the link between youth, brain
immaturity, impulse control[,] and decision making, as well as the impact those factors may have
on a person’s potential for rehabilitation.” Defendant contends this evolving understanding of
youth represents objective evidence that his life sentence—based in part upon offenses he
committed when he was under the age of 21—is shocking to the moral sense of the community.
Defendant further asserts that until the Habitual Criminal Act was amended in 2021, his “claim
was legally and factually precluded by both the language of the Act and precedent,” and he had no
basis upon which to allege a proportionate penalties clause violation.
¶ 25 “[A] showing that the factual or legal basis for a claim was not reasonably available
to counsel” may constitute cause under the cause-and-prejudice test. (Internal quotation marks
omitted.) People v. Pitsonbarger, 205 Ill. 2d 444, 460, 793 N.E.2d 609, 622 (2002). Further, “[a]
legal rule is novel, and its novelty is cause for omitting to raise the rule earlier, if the defendant did
not have at his disposal the essential legal tools with which to construct his claim in time to present
the claim in the initial postconviction proceeding.” (Internal quotation marks omitted.) People v.
Haines, 2021 IL App (4th) 190612, ¶ 44, 188 N.E.3d 825. Here, we find defendant had the essential
legal tools with which to construct his proportionate penalties claim prior to the 2021 amendment
to the Habitual Criminal Act, including at the time of his previous postconviction proceedings.
¶ 26 Defendant acknowledges that his sentencing claim is based on the principles
espoused by the United States Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012), and its
progeny. In Miller, the Supreme Court held “that the eighth amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile offenders.” Id. at 479.
It based its decision on findings that “juveniles have diminished culpability and greater prospects
for reform” and that “mandatory penalties, by their nature, preclude a sentencer from taking
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account of an offender’s age and the wealth of characteristics and circumstances attendant to it.”
Id. at 471, 476. In this case, defendant argues that because his predicate felony offenses were
committed when he was a minor or a youthful offender under the age of 21, “the reasoning behind
Miller and its progeny instructs that [his] priors do not evince the same lack of rehabilitative
potential as similar predicate offenses committed by adults, and thus, his life without parole
sentence is disproportionate.”
¶ 27 Notably, however, Miller’s unavailability prior to 2012 has been held insufficient
to establish “cause” for failing to previously raise a proportionate penalties claim. In Dorsey, 2021
IL 123010, ¶¶ 23-24, a juvenile offender sought to file a successive postconviction petition,
challenging his 76-year aggregate prison sentence based on Miller. Our supreme court found “that
Miller’s announcement of a new substantive rule under the eighth amendment [did] not provide
cause for [the] defendant to raise a claim under the proportionate penalties clause.” Id. ¶ 74. It
stated as follows:
“Illinois courts have long recognized the differences between persons of mature age
and those who are minors for purposes of sentencing. Thus, Miller’s unavailability
prior to 2012 at best deprived [the] defendant of ‘some helpful support’ for his state
constitutional law claim, which is insufficient to establish ‘cause.’ ” Id.
¶ 28 Similarly, in Haines, 2021 IL App (4th) 190612, ¶ 57, this court held that the
nonexistence of Miller and related Illinois case authority was not “cause” for the defendant’s
failure to raise a proportionate penalties claim in his initial postconviction proceeding. There, the
defendant was sentenced to 55 years in prison for an offense he committed when he was 18 years
old. Id. ¶ 1. Relying on Miller and our supreme court’s subsequent decision in People v. Harris,
2018 IL 121932, 120 N.E.3d 900, the defendant sought leave to file a successive postconviction
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petition, arguing that his de facto life sentence was shocking to the moral sense of the community
and violated the proportionate penalties clause. Haines, 2021 IL App (4th) 190612, ¶ 40.
¶ 29 In finding defendant could not establish “cause” under the cause-and-prejudice test,
we stated that “decades” before the cases the defendant relied upon were decided, “Illinois case
law held that the proportionate-penalties clause required the sentencing court to take into account
the defendant’s ‘youth’ and ‘mentality.’ ” Id. ¶ 47. Accordingly, we concluded that the defendant
“had the essential legal tools to raise his *** proposed claim under the proportionate-penalties
clause” at his initial postconviction proceedings. Id. ¶ 49. Although Miller and Harris provided
“some helpful support for [the] defendant’s claim,” it was already accepted under Illinois law “that
there was a significant developmental difference not only between minors and adults but also
between young adults and older adults.” Id. ¶ 51.
¶ 30 Finally, in People v. Kuehner, 2022 IL App (4th) 200325, ¶¶ 100-107, this court
rejected a claim that recent legislative changes, which the defendant argued demonstrated “a
societal shift toward more lenient treatment of juvenile offenders,” provided “cause” for the
defendant’s failure to bring a proportionate penalties clause challenge to his 35-year sentence in
an earlier proceeding. Relying on the rationale set forth in Dorsey and Haines, we held as follows:
“[The] defendant had the necessary tools to construct an as-applied, proportionate
penalties claim when he filed his (1) direct appeal in 2005, (2) initial postconviction
petition in 2009, and (3) amended postconviction petition in 2018. The statutory
amendments in 2014, 2016, and 2019 would have made it easier for him to prove
his claim, but he was not foreclosed from bringing that claim earlier.” Id. ¶ 106.
¶ 31 Like the defendant in Kuehner, defendant in this case argues a recent statutory
amendment provides evidence of how society’s treatment of juvenile and young-adult offenders
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has evolved from the time of his sentencing in 1997. However, Illinois has long recognized that
youthful offenders are developmentally different from older adult offenders. Accordingly,
defendant had the ability to construct his proportionate penalties claim at the time of his earlier
postconviction proceedings. Neither the unavailability of Miller nor the 2021 amendment to the
Habitual Criminal Act provides “cause” for his failure to previously raise that claim.
¶ 32 On appeal, defendant contends that the constitutional claim he is attempting to raise
is a novel one due to the recent 2021 amendment to the Habitual Criminal Act. He notes that prior
to the 2021 amendment, courts rejected constitutional challenges to the Habitual Criminal Act,
including challenges based on the use of convictions obtained while an offender was a juvenile.
See People v. Dunigan, 165 Ill. 2d 235, 246, 650 N.E.2d 1026, 1031 (1995) (rejecting the
defendant’s claim that the Habitual Criminal Act violated the proportionate penalties clause and
holding that it represented “a careful legislative consideration of both the seriousness of the offense
and the rehabilitative potential of offenders subject to its terms”); People v. Banks, 212 Ill. App.
3d 105, 108, 569 N.E.2d 1388, 1390 (1991) (holding that the legislature intended that any
conviction, including those obtained while the defendant was a minor, would serve to qualify a
defendant as a habitual criminal); People v. Lawson, 2015 IL App (1st) 120751, ¶¶ 47-53, 29
N.E.3d 464, 477 (rejecting the defendant’s argument that his life sentence after being adjudicated
a habitual criminal was unconstitutional because it was based in part on conduct he committed
when he was under the age of 18).
¶ 33 Defendant’s contention is unconvincing. He makes no claim on appeal that the
recent changes to the Habitual Criminal Act apply retroactively to his case. Additionally, as set
forth above, the fact that developmental differences exist between youthful offenders and offenders
who are mature adults, and that such differences are relevant to sentencing considerations, are not
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novel concepts under Illinois law. Finally, we note “our own supreme court declines to accept a
lack of precedent, or even adverse precedent, as cause.” Haines, 2021 IL App (4th) 190612, ¶ 45.
Specifically, in People v. Guerrero, 2012 IL 112020, ¶ 20, 963 N.E.2d 909, the supreme court held
that “the lack of precedent for a position differs from ‘cause’ for failing to raise an issue, and a
defendant must raise the issue, even when the law is against him.” Accordingly, we reject
defendant’s arguments and find the trial court committed no error in finding defendant failed to
establish the “cause” prong of the cause-and-prejudice test.
¶ 34 C. Prejudice
¶ 35 Next, even assuming that defendant could establish cause for his failure to
previously raise his proportionate penalties claim, he cannot establish prejudice.
¶ 36 Defendant argues that “public opinion drives legislation” and there is no “better
way to discern ‘the moral sense of the community’ than legislative action.” Accordingly, he
contends the 2021 amendment to the Habitual Criminal Act, which requires qualifying offenses to
have been committed when the defendant was at least 21 years of age, warrants a finding that his
life sentence, based on offenses committed when he was 16 and 20, is now shocking to the moral
sense of the community and current standards of decency.
¶ 37 “[T]he fact that the legislature has authorized a designated punishment for a
specified crime itself says something about the general moral ideas of the people with respect
thereto.” (Emphasis in original and internal quotation marks omitted.) People v. Rizzo, 2016 IL
118599, ¶ 37, 61 N.E.3d 92. “ ‘The legislature’s discretion in setting criminal penalties is broad,
and courts generally decline to overrule legislative determinations in this area unless the
challenged penalty is clearly in excess of the general constitutional limitations on this authority.’ ”
People v. Coty, 2020 IL 123972, ¶ 43, 178 N.E.3d 1071 (quoting People v. Sharpe, 216 Ill. 2d 481,
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487, 839 N.E.2d 492, 497-98 (2005)).
¶ 38 Notably, here, although the legislature amended the Habitual Criminal Act to add
an age requirement for qualifying felony offenses, it elected not to make that change retroactive.
See People v. Hunter, 2017 IL 121306, ¶ 52-54, 104 N.E.3d 358 (stating if a statute is silent as to
its temporal reach, section 4 of the Statute on Statutes applies and requires that statutory changes
that mitigate a punishment may not be applied to defendants who are sentenced before the statute
takes effect). In this case, defendant was sentenced long before the 2021 amendments took effect
and, as a result, they do not apply to him. The legislature must have been aware that there would
be a category of defendants, sentenced under prior versions of the Habitual Criminal Act, to which
the 2021 amendment would not apply. Given these circumstances, defendant’s contention that his
life sentence, following his adjudication as a habitual criminal, shocks the moral sense of the
community lacks merit.
¶ 39 III. CONCLUSION
¶ 40 For the reasons stated, we affirm the trial court’s judgment.
¶ 41 Affirmed.
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