People v. Wimberly

2022 IL App (1st) 211464 FIFTH DIVISION Order filed: September 2, 2022 No. 1-21-1464 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 07 CR 2881 ) DARRELL WIMBERLY, ) Honorable ) William G. Gamboney Defendant-Appellant. ) Judge, presiding. JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion. OPINION ¶1 The defendant, Darrell Wimberly, appeals from an order of the circuit court denying him leave to file a successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). He contends that the court should have granted him leave to file because case law decided after the resolution of his initial petition created good cause for a successive petition and because evidence of his troubled upbringing would have demonstrated that his sentence violated the eighth amendment of the United States Constitution (U.S. Const., amend. No. 1-21-1464 VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970 art. 1, § 11). For the reasons that follow, we affirm the circuit court's order. ¶2 In 2009, a jury convicted the defendant of one count of attempted first degree murder and two counts of armed robbery after evidence showed that the defendant robbed two victims at gunpoint and then shot one of them in the back. The defendant was 20 years old at the time of the offenses. The trial court sentenced the defendant to consecutive terms of 50, 15, and 15 years’ imprisonment, and this court affirmed the convictions and sentences on direct appeal. See People v. Wimberly, 1-09-1328 (2011) (unpublished order pursuant to Supreme Court Rule 23). ¶3 In 2011, the defendant filed an initial petition for postconviction relief, raising several claims of ineffective assistance of trial and appellate counsel. In particular, he asserted that trial counsel was ineffective for failing to raise issues regarding a photo spread and lineup, for failing to move to suppress a witness identification, and for failing to raise a one-act, one-crime challenge to his consecutive sentences. He also claimed that appellate counsel rendered ineffective assistance by not raising the same one-act, one-crime challenge on appeal. The postconviction court dismissed the petition as frivolous and patently without merit, and this court affirmed the dismissal. See People v. Wimberly, 2013 IL App (1st) 113454-U. ¶4 In 2021, the defendant sought leave to file the instant successive petition, which raised two claims for relief. In those claims, the defendant asserted that trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence at sentencing and that his 80- year sentence is a de facto life sentence that is unconstitutional under the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. The -2- No. 1-21-1464 postconviction court concluded that the defendant failed to satisfy the cause-and-prejudice test for …

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