People v. Johnson

• Decision Date: 18 April 2018
• Docket Number: No. 1–15–3266,1–15–3266
• Citation: People v. Johnson, 2018 IL App (1st) 153266-U, 110 N.E.3d 242 (Ill. App. 2018)
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Llewillyn JOHNSON, Defendant–Appellant.
• Court: Appellate Court of Illinois

2018 IL App (1st) 153266

110 N.E.3d 242

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Llewillyn JOHNSON, Defendant–Appellant.

No. 1–15–3266

Appellate Court of Illinois, First District, Third Division.

Opinion filed April 18, 2018

Michael Resis, Ellen L. Green, and Margaret C. Firnstein, of SmithAmundsen LLC, of Chicago, for appellees.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Noah Montague, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 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 People v. Johnson , 361 Ill.App.3d 1088, 331 Ill.Dec. 536, 911 N.E.2d 6 (2005) (unpublished order under Illinois Supreme Court Rule 23 ).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, 2015 WL 7770831. 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."

The 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 afternoon."

¶ 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 the State's motion to dismiss in 2013. On appeal from the dismissal, defendant raised no challenge to his sentencing.

¶ 10 In June 2015, defendant filed a pro se motion for leave to file a successive postconviction petition. Citing Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), he claimed that his 40–year prison sentence for a crime committed when he was 15 years old is an unconstitutional de facto life sentence. Citing People v. Davis , 2014 IL 115595, 379 Ill.Dec. 381, 6 N.E.3d 709, defendant argued that he showed cause for a successive petition because he could not have earlier raised a Miller claim and prejudice because Miller applies retroactively to his sentencing hearing. His attached proposed petition raised a Miller challenge to his sentence and claimed that the mandatory transfer statute, by which his case proceeded as a criminal case rather than a juvenile case, violates the federal and Illinois constitutions. It did not raise a claim that his sentence violates the Illinois Constitution.

¶ 11 The circuit court denied defendant leave to file a successive petition on July 17, 2015.

¶ 12 On appeal, defendant contends that he showed the requisite cause and prejudice for his successive petition, because he stated meritorious challenges to his 40–year prison sentence for a crime he committed when 15 years old.

¶ 13 Generally, a defendant may file only one postconviction petition without leave of court, which may be granted if the defendant shows an objective cause for not previously raising the instant claims and prejudice from not raising them. 725 ILCS 5/122–1(f) (West 2014). The cause-and-prejudice test is a higher standard for a defendant to overcome than the frivolous-and-patently-without-merit test for summarily dismissing a petition, and the circuit court should deny leave when it is clear upon reviewing the successive petition and attached documentation that the defendant's claims fail as a matter of law or the petition and documentation are insufficient to justify further proceedings.

People v. Terry , 2016 IL App (1st) 140555, ¶ 28, 404 Ill.Dec. 783, 57 N.E.3d 542 (citing People v. Smith , 2014 IL 115946, ¶ 35, 387 Ill.Dec. 1, 21 N.E.3d 1172 ). Our review of the denial of leave to file a successive petition is de novo . Terry , 2016 IL...