2025 IL App (1st) 231929-U

No. 1-23-1929

FIRST DIVISION
      March 3, 2025

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent-Appellee,

v.

LESTER DOBBEY,

Petitioner-Appellant.

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Appeal from the
Circuit Court of
Cook County.

No. 00 CR 10872

Honorable

      Michael B. McHale,
Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justice Pucinski concurred in the judgment.
Justice Lavin dissented.

O R D E R

¶ 1

Held:   The  circuit  court  erred  in  dismissing  the  petitioner’s  pro  se  successive
postconviction petition after our remand for further second-stage proceedings on
the basis that the petitioner failed to establish the requisite cause of the cause-and-
prejudice-test.

¶ 2

Over 20 years ago, the 19-year-old petitioner Lester Dobbey, was convicted of first degree

murder and attempted first degree murder, and sentenced to the mandatory minimum sentence of

51 years’ imprisonment. The instant appeal stems from our remand of the petitioner’s most recent

No. 1-23-1929

successive postconviction petition to the circuit court for second stage postconviction proceedings

(725  ILCS  5/122-4  (West  2018))  on  the  petitioner’s  claim  that,  as  applied  to  him,  the  51-year

sentence  violated  the  Illinois  Proportionate  Penalties  clause  (Ill.  Const.  1970,  art.  I,  § 11).  See

People v. Dobbey, 2020 IL App (1st) 190118-U. Following our remand, the circuit court granted

the Sate’s motion to dismiss without considering the merits of the petitioner’s claim and without

permitting  him  to  amend  his  pro  se  petition  to  include  the  expert  opinion  of  his  already  hired

mitigation  expert.  Instead,  the  circuit  court  found  that  our  supreme  court’s  recent  decision  in

People  v.  Moore,  2023  IL  126461,  “overruled”  our  remand  for  second  stage  postconviction

proceedings because  under Moore the petitioner  failed to  state  the  requisite cause necessary to

proceed with his youth-based proportionate penalties claim in a successive petition. Because we

find that the circuit court misconstrued the procedural posture of this case, we reverse and remand

with instructions.

¶ 3

¶ 4

 I. BACKGROUND

The facts of this case have already been fully set forth in our 2020 order remanding the

petitioner’s proportionate penalties claim for second-stage postconviction proceedings. Dobbey,

2020 IL App (1st) 190118-U. Accordingly, we only briefly summarize those facts and procedural

history relevant to the resolution of the issues raised here.

¶ 5

In 2000, the petitioner was charged with numerous crimes for his involvement in the March

31, shooting of three victims, Dorsey Williams, Michael Cole, and Terence Robinson, which left

Williams dead. After a jury found the petitioner guilty of the first degree murder of Williams and

the  attempted  first  degree  murder  of  Cole,  but  acquitted  him  of  the  attempted  first  murder  of

Robinson, the trial court sentenced the petitioner to 51 years’ imprisonment. This sentence was the

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minimum mandatory sentence permitted under the statute.1

¶ 6

During  the  original  sentencing  hearing,  the  pro  se  petitioner  offered  no  evidence  or

argument  in  mitigation.  On  the  other  hand,  the  State  relied  on  victim  impact  statements,  the

presentence investigation report (PSI), and the testimony of several Chicago police officers with

personal  knowledge  of  the  petitioner’s  prior  criminal  background,  gang-affiliation,  and  use  of

firearms, to argue that the instant crimes warranted a “substantial sentence.”

¶ 7

In imposing the 51-years sentence, the trial judge recognized that the petitioner had a “very

disruptive life” and had been involved in “criminal activity ever since early childhood, since the

age of 13 at least.” The court further acknowledged that the petitioner’s lifestyle and gang activity

“involved him in these types of situations on an ongoing basis” and resulted in the instant crime.

Accordingly, the trial judge concluded that while a “substantial sentence was warranted,” under

the present circumstances, “the minimum” was “substantial.”

¶ 8

The petitioner’s sentence was vacated on direct appeal after this court found that the trial

judge had failed to properly admonish the petitioner about the sentencing range for murder, and

the cause was remanded for a new sentencing hearing. People v. Dobbey, No. 1-02-3452 (Oct. 8,

2004) (unpublished order pursuant to Illinois Supreme Court Rule 23).

¶ 9

On  remand  before  the  same  sentencing  judge,  who  had  presided  over  the  original

sentencing  hearing,  the  petitioner  again  chose  to  represent  himself  and  offered  no  evidence  or

1 The murder conviction carried a minimum sentence of 20-years imprisonment (730 ILCS 5/5-8-1(a)(1)(a) (West

2004)). Because the jury found that the petitioner personally discharged the firearm that caused Williams’ death, the

mandatory minimum firearm enhancement was 25 years (730 ILCS 5/5-8-1 (d)(iii) (West 2004)). In addition, the

attempted murder conviction carried a minimum sentence of 6 years imprisonment (730 ILCS 5/5-8-1(a)(3) (West

2004)). By statute, the two sentences had to be served consecutively (730 ILCS 5/5-8-4(a)(1) (West 2004)).

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arguments in mitigation. On the other hand, in aggravation, the State informed the court that it

“would  rely  on  the  evidence  earlier  presented  at  the  initial  sentencing  hearing,”  which  was

presumably part of the record, and then made identical arguments in aggravation to those it had

raised  earlier,  namely  that  the  seriousness  of  the  offense,  the  petitioner’s  prior  criminal

background, gang involvement, and good family, reflected his “choice” to continue in his criminal

behavior. Glaringly, the PSI from the original sentencing hearing was not presented to the trial

judge prior to resentencing, and a new PSI was not ordered. The trial court ultimately sentenced

the petitioner to the same “minimum consecutive prison terms” it had done previously, this time

without any rationale.

¶ 10  After exhausting his second direct appeal options (People v. Dobbey, No. 1-05-2800 (Mar.

20, 2008) (unpublished order pursuant to Illinois Supreme Court Rule 23)), the pro se petitioner

spent the next 12 years litigating a multitude of collateral actions in state and federal court.

¶ 11  Relevant  to  this  appeal,  in  June  2017,  he  filed  a  supplement  to  his  second  successive

postconviction petition arguing, inter alia, that as applied to him his 51-year sentence violated the

Illinois proportionate penalties clause (Ill. Const. 1970, art I, § 11). The petitioner alleged that in

imposing  that  sentence,  the  trial  court  did  not  consider  any  of  the  relevant  mitigating  factors,

including that: (1) he grew up in extreme poverty and lived in a rodent infested house with no gas,

electricity, running water, or phones; (2) he was physically abused by his father and moved often,

depriving him of the opportunity to develop social and interpersonal skills; (3) he left home when

he was only 14 years old and lived on the streets of Chicago, where he was threatened and robbed

by gang members, and susceptible to their influence; (4) he started abusing drugs and alcohol, and

committing crimes, at a young age; and (5) after turning 17 he had not committed a violent offense

until  the  instant  crime. The  petitioner  further  asserted  that  he  should  be  referred  for

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No. 1-23-1929

neuropsychological  and  psychological  evaluations,  to  assess  his  cognitive,  intellectual,  and

behavioral status and his risk of recidivism. In support, he attached, among other things, numerous

articles on juvenile and adolescent brain research.

¶ 12

In  August  2018,  the  pro  se  petitioner  filed  a  third  supplement  to  his  second  successive

postconviction  petition  alleging  the  existence  of  new  evidence  and  attaching  a  transcript  of

Professor Laurance Steinberg’s expert testimony from the decision in the civil case of Cruz v. U.S.,

No.  11-CV-787  (JHS)  (U.S.  D.C.  Conn  2018)  regarding  the  maturity  of  young-adults.  In

November  2018,  he  additionally  requested  to  supplement  the  record  with  our  supreme  court’s

decision  in People  v.  Harris,  2018  IL  121932,  and  filed  a  “motion  to  extend  the  record  with

scientific  rationale,”  attaching  the  October  1,  2018,  memorandum  by  child  and  adolescent

development  consultant,  Dr.  James  Garbarino,  titled  “Re:  Scientific  Rationale  to  extend  the

Graham/Roper/Miller rationale upward from age 18-25.”

¶ 13  After the circuit court denied the petitioner leave to file his second successive petition, we

reversed and remanded, holding that the petitioner had sufficiently stated cause and prejudice with

respect to his proportionate penalties claim. Dobbey, 2020 IL App (1st) 190118-U, ¶ 35. In doing

so, we held that the petitioner established cause because Miller v. Alabama, 567 U.S. 460 (2012),

and its progeny were not decided until two years after he filed his original postconviction petition

in February 2010. Id. ¶ 40. Moreover, we found that our supreme court did not hold that Miller

applied retroactively to cases on collateral review until a year after the petitioner had filed his first

successive postconviction petition in May 2013. Id. ¶ 40 (citing People v. Davis, 2014 IL 115595,

¶ 42).

¶ 14  We also held that the petitioner established prejudice because the trial judge was precluded

from taking into account his young age and corresponding rehabilitative potential before imposing

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the mandatory minimum 51-year sentence. Id. ¶ 62. We noted that the petitioner was not afforded

a meaningful sentencing hearing because throughout the sentencing proceedings, he represented

himself and never offered any mitigating evidence or arguments on his own behalf. Id. ¶ 55. We

further found troubling that at the resentencing hearing, which was conducted three years after

trial, the trial judge was not in possession of the original PSI. Id. Accordingly, under this record,

we concluded that because there was no evidence-based factual hearing, as contemplated by our

supreme court’s decision in Harris, 2018 IL 121932, ¶ 46, the petitioner was entitled to develop

the record regarding his proportionate penalties claim in the circuit court. Dobbey, 2020 IL App

(1st) 190118-U, ¶¶ 58-60. We therefore reversed and remanded for second-stage postconviction

proceedings solely on this claim so that the petitioner could develop such a record and make a

“substantial showing” of a proportionate penalties’ violation. Id. ¶¶ 58, 62-63.

¶ 15  On  remand  for  second-stage  postconviction  proceedings,  the  petitioner  was  initially

represented by appointed counsel, who spent over two years gathering the record in the case. The

petitioner was not brought to court during this time, even though on September 30, 2021, he filed

a pro se motion seeking to represent himself. On December 7, 2021, appointed counsel and the

circuit court agreed that counsel should finish acquiring the full record before the petitioner would

be brought into court to address his pro se motion. On February 28, 2023, appointed counsel finally

informed the court that he had successfully acquired the records, copied them to discs for the court

and the State, and printed and indexed them for the petitioner.

¶ 16  On April 5, 2023, the petitioner appeared in court and confirmed that he wished to proceed

pro se. In response to a series of questions from the circuit court, among other things, the petitioner

indicated  that  he  understood  that  he  could  get  another  51-year  sentence,  and  that  he  had  a

constitutional right to an appointed attorney. The petitioner stated that he had earned a GED but

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had no legal training. The petitioner also stated that he understood that the case was remanded for

resentencing and that he would need to present evidence. He informed the circuit court that he had

already  hired  a  mitigation  expert,  Dr.  James  Gabarino,  to  address  how  he  was  more  akin  to  a

juvenile than an adult such that he should receive a lighter sentence.

¶ 17  The circuit court found that the petitioner made a free, knowing and intelligent waiver of

counsel, and granted the petitioner’s motion to proceed pro se. The court then gave the petitioner

a box containing about 2,000 pages of discovery, explaining that each page was numbered such

that  the  circuit  court  could  check  if  the  petitioner  was  missing  anything.  The  petitioner  then

requested  a  two-month  continuance  to  review  the  documents,  which  the  court  granted.  The

petitioner then asked what would happen at the next court hearing, to which the judge responded

“ou will be filing something, I imagine in your defense.”

¶ 18  The court also informed the petitioner that the law was not yet clear on “young adults” and

that our supreme court would be issuing relevant decisions (“Williams and Moore to be specific”)2

that could impact his case. The court therefore encouraged the petitioner to “pay attention to the

case law between now and then.”

¶ 19

Immediately before the next scheduled status hearing, on June 14, 2023, the State filed a

motion to dismiss the petitioner’s successive postconviction petition, arguing that he lacked cause

for filing it. The motion specifically alleged that our supreme court’s recent decision in People v.

Moore,  2023  IL  126461  “overruled”  this  court’s  2020  order  remanding  the  cause  for  further

postconviction  proceedings.  The  motion  further  alleged  that  the  petitioner  failed  to  establish

prejudice because his 51-year sentence for murder and attempted murder did not shock the moral

sese of our community. In addition, the motion asserted that pursuant to our supreme court’s recent

2 The court merely named this decision and did not provide the petitioner with any citations.

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decision in People v. Wilson, 2023 IL 127666, the sentencing proceedings in this case complied

with  the  requirements  of  Miller  in  that  the  trial  court  already  considered  the  PSI  at  the  first

sentencing  hearing  and  took  the  petitioner’s  youth  into  account  but  nonetheless  found  that  the

petitioner was permanently incorrigible.

¶ 20  At the subsequent status hearing, the State summarized the claims in its motion to dismiss.

The petitioner then requested the entire file from the Public Defender’s Office and leave to file an

amended petition. After a discussion with the circuit court about other pro se documents that he

had  recently  filed  (namely,  a  “motion  for  a  speedy  trial”),  the  petitioner  again  asked  for  an

opportunity to amend his petition. The court granted the petitioner 90 days within which to file

such  an  amendment.  Upon  the  State’s  motion,  however,  the  court  clarified  that  the  amended

petition should only articulate the petitioner’s position on his proportionate penalties claim in light

of the recent supreme court’s decisions cited by the State, but that it could not add any additional

claims.

¶ 21  On  September  13,  2023,  the  petitioner  appeared  in  court  with  a  written  response  titled

“Petitioner’s Combined Objections and Response to People’s Motion to Dismiss the Petition for

Post-Conviction  Relief.”  Therein,  the  petitioner  objected  to  the  State’s  premature  filing  of  its

motion to dismiss before the petitioner had amended his pro se petition, originally filed in 2017,

and before he completed his evaluation with the mitigation expert that he had already hired. The

petitioner asserted that he was in the process of answering the evaluation questions requested by

his hired mitigation expert, Dr. Gabarino, and requested another extension of time to be able to

complete this evaluation and amend his petition with it.

¶ 22  The petitioner’s response to the State’s motion to dismiss further asserted that: (1) the State

had forfeited its arguments regarding “cause and prejudice” because it never appealed our 2020

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order remanding  the  case  for  second-stage  proceedings;  (2) Moore  was inapplicable  because  it

involved discretionary life sentences; (3) the petitioner’s resentencing hearing was void because

after his first sentence was vacated the resentencing judge did not have an updated PSI; and (4)

the  petitioner  was  entitled  to  an  opportunity  to  develop  the  record  regarding  his  as-applied

proportionate penalties claim.

¶ 23  The  circuit  court  rejected  the  petitioner’s  assertion  that  the  State  waived  its  arguments

concerning  cause  and  prejudice  and  that  his  resentencing  was  void.  The  court  found  that  the

decision  in  Moore  “overruled”  this  court’s  order  remanding  for  second-stage  postconviction

proceedings  and  that  the  petitioner  could  no  longer  meet  the  cause  element  of  the  cause-and-

prejudice test. The circuit court also denied the petitioner’s request for additional time to amend

his claim to complete the evaluation with his mitigation expert finding that he had already been

given 90 days to do so on the previous court date. The petitioner now appeals.

¶ 24

                                                    II. ANALYSIS

¶ 25  The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a three-

stage  process  by  which  criminal  defendants  may  address  substantial  violations  of  their

constitutional  rights  that  occurred  at  either  trial  or  at  sentencing.  People  v.  English,  2013  IL

112890, ¶ 23. At the first stage, the circuit court independently reviews the petition and determines

whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018); People v.

Tate, 2012 IL 112214, ¶ 10; see also People v. Edwards, 197 Ill. 2d 239, 244 (2001). If the petition

is not summarily dismissed as frivolous or patently without merit, it advances to the second stage,

during which counsel may be appointed and the petitioner must make a substantial showing of a

constitutional violation. 725 ILCS 5/122-4 (West 2018); see also People v. Domagala, 2013 IL

113688, ¶ 33; Edwards, 197 Ill. 2d at 245-46. At this stage, the circuit court may not engage in

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fact-finding or credibility determinations but must take the well-pleaded allegations in the petition

that are not rebutted by the record as true. 725 ILCS 5/122-6 (West 2018); see also People v. Ayala,

2022 IL App (1st) 192484, ¶ 97; People v. Dupree, 2018 IL 122307, ¶ 29. If the petition makes a

substantial showing of a constitutional violation it advances to the third stage, where the circuit

court conducts an evidentiary hearing before deciding whether to grant relief. 725 ILCS 5/122-6

(West 2018); see also Domagala, 2013 IL 113688, ¶ 34; Edwards, 197 Ill. 2d at 246.

¶ 26

 The Act is not a substitute for an appeal, but rather, a collateral attack on a final judgment.

People v. Clark, 2023 IL 127273, ¶ 38. Accordingly, pursuant to section 122-3 of the Act, issues

not presented in an original postconviction petition will be deemed “waived,” and issues that have

previously  been  raised  and  addressed  on  direct  appeal  will  be  barred  under  the  doctrine  of  res

judicata. Id. ¶ 38 (citing 725 ILCS 5/122-3 (West 2014)); see also People v. Sanders, 2016 IL

118123, ¶ 24. In proceedings under the Act, “the cause-and-prejudice test is ‘the analytical tool

that is to be used to determine whether fundamental fairness requires’ an exception to section 122-

3’s statutory waiver” and the doctrine of res judicata. See Clark, 2023 IL 127273, ¶¶ 44-45 (citing

People v. Pitsonbarger, 205 Ill. 2d 444, 462 (2002)); see also People v. Griffin, 2024 IL 128587,

¶ 66.

¶ 27  Consistent  with  these  principles,  the  Act  contemplates  the  filing  of  only  one  petition

without leave of court and codifies the cause-and-prejudice test as the prerequisite to obtaining

such relief. People v. Lusby, 2020 IL 124046, ¶ 27; Edwards, 2012 IL 111711, ¶ 23; see also 725

ILCS 5/122-1(f) (West 2018). Pursuant to section 122-1(f) of the Act, to obtain leave, the petitioner

must demonstrate: (1) cause by identifying an objective factor that impeded his ability to raise the

specific claim during his initial postconviction proceedings; and (2) prejudice stemming from that

failure  by  demonstrating  that  the  claim  not  raised  in  his  initial  postconviction  proceedings  so

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infected  the  resulting  conviction  or  sentence  that  it  violated  due  process.  725  ILCS  5/122-1(f)

(West 2018); see also Pitsonbarger, 205 Ill. 2d at 462.

¶ 28

“Both elements of the test must be met for a defendant to overcome section 122-3’s waiver

provision or to establish fundamental fairness for relaxing the res judicata doctrine.” Clark, 2023

IL 127273, ¶ 47 (citing Davis, 2014 IL 115595, ¶ 14). “The legislature intended for the courts to

make cause-and-prejudice determinations on the pleadings and not by evidentiary hearings.” Id.

(citing People  v.  Smith,  2014  IL  115946,  ¶  33).  The  circuit  court  does  so  by conducting  “a

preliminary screening” to determine whether the motion adequately alleges facts that make a prima

facie showing of cause and prejudice as to each individual claim. Id. If the petitioner makes such

a showing, “ ‘fundamental fairness requires that an exception be made to section 122-3 so that a

claim raised in a successive petition may be considered on its merits.’ ” Griffin, 2024 IL 128587,

¶ 66 (quoting Pitsonbarger, 205 Ill. 2d at 459).

¶ 29  Here, the petition was dismissed at the second stage, and our review of that dismissal is de

novo. Dupree, 2018 IL 122307, ¶ 29.

¶ 30

In the present case, for the following reasons, we find that the circuit court misconstrued

the procedural posture of this case when it granted the State’s motion to dismiss on the basis that

the petitioner lacked cause to proceed with his proportionate penalties claim. We addressed this

same  issue  five  years  ago,  when  we  remanded  the  case  for  second-stage  postconviction

proceedings  solely  on  the  petitioner’s  proportionate  penalties  claim.  We  then  found  that  the

petitioner sufficiently stated both cause and prejudice with respect to this claim and remanded for

second-stage postconviction proceedings to give him an opportunity to fully develop the record

regarding why, at the time he committed the instant offense, he was more akin to a juvenile than

an adult. See Dobbey, 2020 IL App (1st) 190118-U, ¶¶ 40, 58-60.

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¶ 31  While  not  addressed  by  the  parties,  we  find  that  the  law-of-the-case  doctrine  limits  our

ability to relitigate this previously decided issue. People v. Anderson, 2015 IL App (2d) 14044, ¶

27. Under the law-of-the-case doctrine, rulings made on points of law by a reviewing court are

binding in the trial court upon remand and on subsequent appeals to the same reviewing court. Id.

The doctrine settles for all subsequent stages of a suit the particular views of law announced by

the court in a prior order or decision. Id. The rule is based upon the sound policy that, where an

issue  is  once  litigated  and  decided,  the  issue  is  settled  for  all  subsequent  stages  of  the  suit.

McDonalds Corp. v. Vittorio Ricci Chicago, Inc., 125 Ill. App. 3d 1083, 1086-87 (1984); see also

Petre v. Kucich, 356 Ill. App. 3d 57, 63 (2005) (the purpose of the doctrine is “to protect settled

expectations of the parties, ensure uniformity of decisions, maintain consistency during the course

of  a  single  case,  effectuate  proper  administration  of  justice,  and  bring  litigation  to  an  end”).

Accordingly, where “an appellate court reverses and remands the cause with a specific mandate,

the only proper issue on a second appeal is whether the trial court’s order is in accordance with

th mandate.” Petre, 356 Ill. App. 3d at 63.

¶ 32  There  are  only  two  recognized  exceptions  to  the  application  of  the  law-of-the-case

doctrine: (1) when a higher reviewing court, subsequent to the lower court’s decision, makes a

contrary  ruling  on  the  same  issue; and  (2)  when  a  reviewing  court  finds  its  prior  decision  was

palpably erroneous. Anderson, 2015 IL App (2d) 14044, ¶ 27. Neither of those exceptions apply

here.

¶ 33  While we acknowledge the decision in Moore, upon which the circuit court below relied,

we  find  that  it  is  not  contrary  to  our  2020  ruling  remanding  the  matter  for  second  stage

postconviction proceedings to permit the petitioner to fully develop the record regarding his youth-

based  proportionate  penalties  challenge  to  his  mandatory  51-year  sentence.  In  Moore,  2023  IL

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126461, ¶¶ 12, 23, our supreme court held that two 19-year-old young adult offenders sentenced

to  discretionary  life  sentences  could  not  rely  on  the  unavailability  of  Miller  to  establish  the

requisite cause for their failure to raise their youth-based proportionate penalties challenges in their

original  postconviction  proceedings  because  “Miller  did  not  change  the  law  applicable  to

discretionary life sentences imposed on young adults.” Id. ¶ 38. Our supreme court further held

that  “long  before  Miller,  Illinois  law  recognized  the  special  status  of  juvenile  offenders  for

purposes of applying the principles under the proportionate penalties clause,” and that the evidence

and arguments presented at the petitioners’ sentencing hearings in that case established that the

petitioners knew that “Illinois law recognized th special status of young adults, especially those

subject to adverse influences” for this purpose. Id. ¶¶ 41, 42.

¶ 34  Moore’s holding does not apply to the present circumstances. Unlike in Moore, where the

petitioners were sentenced to discretionary life sentences, in the present case, the circuit court had

no discretion to impose a sentence less than the mandatory minimum of 51 years. What is more,

in the present case, unlike in Moore, neither of the petitioner’s sentencing hearings reveal that the

petitioner knew or argued to the sentencing judge that Illinois law recognized the special status of

young adult offenders and that he should be treated differently because of his age. To the contrary,

as we have already found in our 2020 order, because the petitioner offered no mitigating evidence

or arguments at either sentencing hearing, and the PSI was not presented to the trial judge prior to

the second one, in sentencing the petitioner to the minimum 51-year-sentence, the trial court was

precluded from considering the petitioner’s special status as a young adult offender. Dobbey, 2020

IL App (1st) 190118-U, ¶¶ 55-60. Under this record, Moore does not overrule our prior holding.

¶ 35

Instead, we find that this case is factually and procedurally more akin to People v. House,

2021 IL 125124.  In House, which was also decided after our 2020 order remanding the matter to

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the  circuit  court,  our  supreme  court  considered  a  second-stage  dismissal  of  a  19-year-old

offender’s as-applied proportionate penalties’ challenge to his mandatory natural life sentence for

murder. Id. ¶¶ 7-9. Our supreme court reversed the appellate court’s finding that the sentence was

constitutionally  disproportionate,  holding  that  such  a  conclusion  was  premature  because  “no

evidentiary hearing was held, and the trial court made no factual findings critical to determining

whether  the  science  concerning  juvenile  maturity  and  brain  development  applie  equally  to

young adults, or to petitioner specifically” Id. ¶ 29. Our supreme court, therefore, remanded the

matter for further second-stage proceedings to provide the petitioner an opportunity to develop the

evidentiary record regarding his as-applied proportionate penalties’ sentencing claim. Id. ¶¶ 31,

43.

¶ 36  Since then, our supreme court has continued to hold that young-adult offenders between

ages 18 and 19 can make as-applied proportionate penalties challenges to mandatory life sentences

so long as they can demonstrate through an adequate factual record that at the time they committed

their crimes, their specific characteristics made them the functional equivalent of juveniles. See

Clark,  2023  IL  12727387,  ¶  87  (holding  that  “emerging  adult”  defendants  between  18  and  19

years-old are “not foreclosed” from raising as-applied proportionate penalties clause challenges to

“mandatory”  life  sentences  based  on  evolving  science  on  juvenile  maturity  and  brain

development); See People v. Hilliard, 2023 IL 128186, ¶ 28 (reiterating that its prior precedent in

Harris  and  House  directed  “the  possibility  of  as-applied  proportionate  penalties  clause

postconviction challenges to young adults who received mandatory life sentences ***.”). As our

supreme court has explained, this requires young-adult offenders to do more than just rely on their

age at the time they committed the crime; they must also develop the record to include specific

allegations, which are not contradicted by the record, showing that because of their circumstances

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they shared certain behavioral characteristics with juvenile offenders. People v. Williams, 2024 IL

127304, ¶¶ 31-36.

¶ 37

In the present case, this is exactly what the petitioner was attempting to do before the circuit

court. When we remanded the matter in 2020, we found that the 19-year-old petitioner received a

mandatory  “de  facto  life    without  the  trial  court’s  ability  to  consider  any  mitigating

factors or the requisite goal of rehabilitation,” because even though he now alleged that his poverty,

drug  abuse,  gang  involvement  beginning  at  age  13,  and  subsequent  harsh  life  on  the  streets,

impacted  his  emotional  development,  “he  record    devoid  of  any  evidence  about  the

evolving science and its impact on  case” (Dobbey, 2020 IL App (1st) 19-0118-U,

¶¶ 54, 57). Accordingly, we held that the petitioner was entitled to develop the record regarding

his as-applied constitutional challenge. Id.; see also House, 2021 IL 125124, ¶ 32 (“Because we

have determined that the record in this case requires further development, we remand the cause to

the circuit court for second-stage postconviction proceedings.”).

¶ 38

In  dismissing  the  petition  without  giving  the  petitioner  an  opportunity  to  develop  the

record, as we had explicitly instructed it to do, the circuit court directly ignored our mandate. In

this respect, we are troubled by the court’s refusal to grant the petitioner more than 90 days to

amend his petition to include an opinion from his already hired mitigation expert, Dr. Gabarino,

especially  after  the  petitioner  informed  the  court  that  he  was  in  the  process  of  answering  Dr.

Gabarino’s  evaluation  questions.  We  note  that  prior  to  permitting  the  petitioner  to  represent

himself,  the  court  indulged  appointed  postconviction  counsel  for  over  two  years  in  counsel’s

simple  task  of  collecting  and  indexing  the  record  on  appeal.  We  therefore  fail  to  see  why  the

incarcerated petitioner should have been entitled to less time to complete his evaluation with his

mitigation expert, so that he could attach that evaluation to his amended petition, particularly since

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our  supreme  court  has  signaled  that  such  evidence  is  a  prerequisite  to  a  successful  as-applied

proportionate penalties’ claim.  See Williams, 2024 IL 127304, ¶¶ 31-36.

¶ 39  For these reasons, we conclude that the circuit court erred in dismissing the petition on the

basis  that  Moore  “overruled”  this  court’s  2020  order  remanding  the  petitioner’s  proportionate

penalties claim for second-stage postconviction proceedings. We further find that the circuit court

abused its discretion by not granting the petitioner more time to amend his petition to develop a

full record regarding the merits of this claim. See 725 ILCS 5/122-5 (West 2018) (the Act grants

the court discretion to allow amendments of postconviction petitions “as shall be appropriate, just

and reasonable and is generally provided in civil cases.”); People v. Brown, 226 Ill. App. 3d 711,

716 (2002) (“A circuit court abuses its discretion if it refuses to allow a plaintiff to amend his

complaint when a cause of action can be stated if the complaint is amended”).

¶ 40

                                                 III. CONCLUSION

¶ 41  Accordingly, we reverse the circuit court’s dismissal of the petition and remand for further

second-stage postconviction proceedings with the following instructions before a new judge. See

People v. Serrano, 2016 IL App (1st) 133493, ¶ 45 (“Illinois Supreme Court Rule 366(a)(5) (eff.

Feb. 1, 1994) gives a reviewing court, in its discretion, the power to reassign a matter to a new

judge on remand.”). On remand, the petitioner is permitted to amend his successive petition solely:

(1) to include the opinion of his mitigation expert; and (2) provide any additional argument and/or

evidence in support of his position that he was more akin to a juvenile than an adult at the time he

committed the instant crime. The circuit court is then instructed to evaluate the amended petition

under the “substantial showing” standard.

¶ 42  Reversed and remanded with instructions.

¶ 43

JUSTICE LAVIN, dissenting:

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¶ 44

I abide by my original dissent in this case, as I would have affirmed the circuit court’s

judgment denying defendant leave to file his successive postconviction petition. See People v.

Dobbey, 2020 IL App (1st) 19-0118-U. I do not believe defendant’s petition presents a legally

cognizable claim or meets the high bar needed to advance as a successive petition. See id.; see

also People v. Clark, 2023 IL 127273, ¶ 97. Indeed, such petitions are highly disfavored and

allowed only in very limited circumstances. People v. Montanez, 2023 IL 128740, ¶ 73.

¶ 45

In addition, I believe recent supreme court case law runs contrary to the majority’s prior

decision for several reasons and warrants affirming the dismissal of this case. See People v.

Anderson, 2015 IL App (2d) 140444, ¶ 27. First, relevant to my prejudice analysis is People v.

Hilliard, 2023 IL 128186, which recently rejected the defendant’s proportionate penalties

challenge to the same mandatory 25-year firearm enhancement to which defendant was subject.

In Hilliard, the defendant was a young adult offender (age 18) when he committed attempted

murder with a firearm. The court held the defendant could not overcome the presumption that the

enhancement was constitutional as-applied.

¶ 46  Among the cited reasons, the court noted that the new juvenile sentencing laws (730

ILCS 5/5-4.5-105 (West 2024)), giving courts the discretion about whether to apply the

enhancement, were not retroactive and applied only to juveniles. The court observed, “he

distinction between a juvenile and adult remains significant.” Hilliard, 2023 IL 128186, ¶ 39.

The court added that the more lenient parole provisions for young adults under 21 also were not

retroactive. See 730 ILCS 5/5-4.5-115 (West 2024). The court held that this new sentencing law

merely reflected a “policy change,” and that the 25-year enhancement was not itself “abhorrent

to the community’s moral standards.” Id. ¶ 39. Hilliard further considered that the defendant in

that case chose to fire multiple close-range shots at the victim without provocation in an attempt

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to kill him. It concluded the defendant’s 40-year sentence was not even arguably cruel, degrading

or disproportionate to the offense as to shock the moral sense of the community. Id. ¶ 40. This

analysis buttresses my conclusion that defendant’s 51-year sentence also did not shock the

community’s moral sense, but was proportionate. See People v. Dobbey, 2020 IL App (1st) 19-

0118-U, ¶ 11 (dissent); see also People v. White, 2025 IL 129767, ¶ 43 (finding the sentence

proportionate). He received the minimum for murder (20 years) and attempted murder (6 years)

and was subject to the 25-year mandatory firearm enhancement upheld in Hilliard, as well as

consecutive sentencing provisions.3

¶ 47  Also relevant to my prejudice analysis is People v. Wilson, 2023 IL 127666. There, the

supreme court held that where the defendant received a Miller-compliant sentencing hearing, he

could not establish prejudice for purposes of filing a successive postconviction petition.

Although Wilson decided an eighth amendment claim, I believe the holding applies equally to

defendant’s proportionate penalties claim now before us. I already found defendant’s sentence

was Miller-compliant. See Dobbey, 2020 IL App (1st) 19-0118-U, ¶ 16. For the foregoing

reasons, defendant cannot establish prejudice.

¶ 48  Second, under recent supreme court case law, defendant has failed to establish cause for

filing his successive petition. He has not shown that some objective factor external to the defense

impeded his effort to raise his proportionate penalties claim in an earlier proceeding. See 725

ILCS 5/122-1(f)(1) (West 2024); People v. Moore, 2023 IL 126461, ¶ 40 (noting, Miller “does

not provide cause for a young adult offender to raise a claim under the proportionate penalties

clause”); Clark, 2023 IL 127273, ¶¶ 61, 88, 93-94 (noting, “the Miller line of cases does not

3Courts have held that consecutive sentencing determines only the manner in which a defendant will serve sentences
for multiple offenses but does not constitute an increase in penalty implicating the proportionate penalties provision.
People v. Phelps, 211 Ill. 2d 1, 14 (2004); People v. Hawkins, 409 Ill. App. 3d 564, 573-74 (2011); see also People
v. Wilson, 2019 IL App (4th) 170570-U, ¶¶ 36-39.

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satisfy the ‘cause’ prong of the cause-and-prejudice test for raising a proportionate penalties

claim in a successive postconviction petition”); Hilliard, 2023 IL 128186, ¶ 27 (noting

Thompson and Harris only addressed “the possibility of a defendant raising a Miller-based

challenge with respect to mandatory life sentences in initial postconviction petitions” (emphasis

in original)). In interpreting the supreme court’s recent decision in Moore, this court has

concluded that young adult offenders with mandatory life sentences cannot establish cause to

raise Miller-based proportionate penalties claims in successive postconviction petitions. People

v. Horshaw, 2024 IL App (1st) 182047-B, ¶¶ 58-59, 62-63, and cases cited therein; see also

People v. Brown, 2023 IL App (1st) 221825, ¶ 12 (noting, the defendant could not establish

cause as to his 30-year sentence). This also supports the circuit court’s judgment dismissing the

case.

¶ 49

I therefore respectfully dissent.

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