People v. Womack

• Decision Date: 03 April 2020
• Docket Number: Appeal No. 3-17-0208
• Citation: 156 N.E.3d 1265,2020 IL App (3d) 170208,441 Ill.Dec. 516
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert B. WOMACK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (3d) 170208

156 N.E.3d 1265

441 Ill.Dec. 516

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

v.Robert B. WOMACK, Defendant-Appellant.

Appeal No. 3-17-0208

Appellate Court of Illinois, Third District.

Opinion filed April 3, 2020

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

¶ 1 Defendant, Robert B. Womack, was found guilty of attempted murder ( 720 ILCS 5/8-4(a) (West 2006)), aggravated battery with a firearm (id. § 12-4.2), and aggravated unlawful use of a weapon (id. § 24-1.6(a)(1)(3)(A)). The circuit court sentenced him to an 18-year term, with an additional mandatory 20-year enhancement for personally discharging a firearm, for a total of 38 years in prison. After an unsuccessful direct appeal and postconviction petition, defendant filed a motion for leave to file a successive postconviction petition, which the trial court denied. On appeal, defendant claims that he satisfied the cause and prejudice test by demonstrating that the 20-year firearm enhancement (id. § 8-4(c)(1)(C) ) added to his sentence violated the proportionate penalties clause of the Illinois Constitution as applied to him under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). We reverse the denial of leave to file a successive postconviction petition and remand for second-stage proceedings.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged with attempted first degree murder, aggravated battery with a firearm, and aggravated unlawful use of a weapon for shooting Michael McCarns on October 25, 2006. At trial, the evidence revealed that defendant was 16 years old when the shooting occurred and that he and McCarns had an argument on the day of the incident. McCarns testified that he confronted defendant at defendant's home and accused him of robbing a friend. Lashonda Williams was in her apartment nearby and testified that she heard McCarns threaten defendant by saying, "You b*** a*** n***, I'll whoop your a***." At some point, the argument ended, and McCarns left. After McCarns left, defendant drove to his grandfather's house to retrieve a gun. He then returned to his apartment with a .25 caliber revolver. Later that evening, McCarns came back to the apartment complex. He yelled at defendant and threatened him. McCarns told defendant that he did not care about defendant or his family and that he would shoot them all. Defendant drew his gun and fired five shots at McCarns at close range. He shot McCarns four times in the stomach and once in the wrist. McCarns is now paralyzed.

¶ 4 When interviewed by officers, defendant admitted that he shot McCarns but said that McCarns threatened him. He stated that McCarns was pointing and yelling at him. He told the officers that he tried to walk away but McCarns followed him. He then turned around and shot McCarns.

¶ 5 At sentencing, defendant faced a minimum sentence of 26 years in prison. See 720 ILCS 5/8-4(c)(1)(C) (West 2006); 730 ILCS 5/5-8-1(a)(3) (West 2006) (Class X sentencing range of 6 to 30 years with a mandatory 20-year firearm enhancement). The presentencing investigation report (PSI) revealed that defendant struggled academically throughout his childhood. He often had trouble with his peers and acted out when he was being teased by other students. In the ninth grade, he was in a serious car accident and never returned to school. He did not have a criminal record.

¶ 6 At the conclusion of the sentencing hearing, the trial court noted that defendant did not show any remorse for the victim, who is now paralyzed. In its discretion, the court sentenced defendant to 18 years in prison for attempted first degree murder, plus a 20-year mandatory firearm enhancement, resulting in a 38-year sentence. The court merged the aggravated battery conviction with the attempted murder conviction. It then sentenced defendant to 3 years for aggravated unlawful use of a weapon, which was to be served concurrently to the attempted murder sentence. On direct appeal, this court affirmed the attempted murder conviction and reversed defendant's conviction for aggravated unlawful use of a weapon. People v. Womack , 392 Ill. App. 3d 1143, 368 Ill.Dec. 489, 984 N.E.2d 214 (2009) (table) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 7 On October 21, 2009, defendant filed a petition for postconviction relief, alleging that the mandatory sentencing guidelines that resulted in his 38-year sentence violated his due process rights and that he was denied effective assistance of counsel and the right to an impartial jury. The trial court denied his postconviction petition, finding that the firearm enhancement was constitutional pursuant to People v. Sharpe , 216 Ill. 2d 481, 298 Ill.Dec. 169, 839 N.E.2d 492 (2005). On appeal, defendant did not challenge the constitutionality of the firearm enhancement, and we affirmed the trial court's denial of his postconviction petition. People v. Womack , No. 3-10-0087 (2012) (unpublished summary order under Illinois Supreme Court Rule 23(c) ).

¶ 8 On July 7, 2016, defendant moved for leave to file a successive postconviction petition. He alleged that, in light of Miller , 567 U.S. 460, 132 S.Ct. 2455 and its progeny, the statutory scheme that led to his cumulative 38-year sentence violated the federal and state constitutions both facially and as applied. Defendant attached to the motion documents from his childhood showing his struggles at school and his placement in special education classes.

¶ 9 The trial court denied defendant leave to file the petition. In its written order, the court noted that defendant's sentence was "undeniably harsh" but that a discretionary sentence had been imposed after consideration of mitigating and aggravating factors.

¶ 10 II. ANALYSIS

¶ 11 The Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016)) contemplates the filing of only one postconviction petition. People v. Ortiz , 235 Ill. 2d 319, 328, 336 Ill.Dec. 16, 919 N.E.2d 941 (2009). The Act expressly provides that "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 2016) ; see People v. Pitsonbarger , 205 Ill. 2d 444, 458, 275 Ill.Dec. 838, 793 N.E.2d 609 (2002) (stating that "the procedural bar of waiver is not merely a principle of judicial administration; it is an express requirement of the statute"). A successive postconviction petition may only be filed if leave of court is granted. 725 ILCS 5/122-1(f) (West 2016). "Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure." Id. A petitioner shows cause by identifying a factor that impeded his or her ability to raise as specific claim during his or her initial postconviction proceedings. See id. § 122-1(f)(1). Prejudice is shown by "demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." Id. § 122-1(f)(2).

¶ 12 The cause-and-prejudice test involves a higher standard than the first-stage frivolous or patently without merit requirements. People v. Smith , 2014 IL 115946, ¶ 35, 387 Ill.Dec. 1, 21 N.E.3d 1172. Accordingly, if the petition satisfies the successive postconviction standard, the first stage is rendered unnecessary and the successive petition is docketed for second-stage proceedings. People v. Jackson , 2016 IL App (1st) 143025, ¶ 20, 408 Ill.Dec. 388, 65 N.E.3d 864. In determining whether a petitioner sufficiently alleged cause and prejudice so as to be entitled to file a successive petition, the standard of review is de novo . People v. McDonald , 405 Ill. App. 3d 131, 135, 344 Ill.Dec. 755, 937 N.E.2d 778 (2010).

¶ 13 Defendant contends that the trial court erred in denying his motion for leave to file a successive postconviction petition. He claims that he sufficiently alleged cause and prejudice by demonstrating that, under Miller and recent Illinois cases, the 20-year firearm enhancement added to his sentence violated the proportionate penalties clause of the Illinois Constitution ( Ill. Const. 1970, art. I, § 11 ) as applied to him. See People v. Barnes , 2018 IL App (5th) 140378, 425 Ill.Dec. 480, 114 N.E.3d 469 ; People v. Aikens , 2016 IL App (1st) 133578, 407 Ill.Dec. 299, 63 N.E.3d 223.

¶ 14 The proportionate penalties clause 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. An "as applied" constitutional challenge requires the defendant to show that the statute at issue violates the Illinois Constitution as applied to him.

Aikens , 2016 IL App (1st) 133578, ¶ 33, 407 Ill.Dec. 299, 63 N.E.3d 223. A proportionality violation may be found where the penalty imposed for the offense is "cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community." People v. Miller , 202 Ill. 2d 328, 338, 269 Ill.Dec. 503, 781 N.E.2d 300 (2002) ( Leon Miller ). A punishment that constitutes " ‘cruel,’ ‘degrading,’ or ‘so wholly disproportioned’ to the offense as to shock the moral sense of the community" is not clearly defined because "as our society evolves, so too do our concepts of elemental decency and fairness which shape the ‘moral sense’ of the community." Id. at 339, 269 Ill.Dec. 503, 781 N.E.2d 300. In deciding whether a punishment shocks the moral sense of the community, we should evaluate objective evidence as well as the community's changing standard of moral decency. Aikens , 2016 IL App (1st) 133578, ¶ 33, 407 Ill.Dec. 299, 63 N.E.3d 223. In other words, we must consider "the gravity of the defendant's offense in connection with the severity of the statutorily mandated sentence within our...