                                          2018 IL App (3d) 150684

                               Opinion filed December 3, 2018
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2018

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 12th Judicial Circuit,
                                                       )       Will County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-15-0684
            v. 	                                       )       Circuit No. 13-CF-98

                                                       )

     ADAM LANDERMAN,                                   )       Honorable

                                                       )       Amy M. Bertani-Tomczak,
            Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion. 

           Presiding Justice Carter and Justice O’Brien concurred in the judgment and opinion. 

     _____________________________________________________________________________

                                                  OPINION

¶1          Defendant, Adam Landerman, appeals his convictions for two counts of first degree

     murder and sentence of natural life imprisonment. Defendant argues he received ineffective

     assistance of counsel where counsel raised a baseless defense that the inaudible nature of

     defendant’s recorded statement rendered it insufficient to prove defendant’s guilt. Defendant also

     argues that counsel was ineffective for failing to redact irrelevant and prejudicial portions of

     defendant’s statement that were improperly admitted as other-crimes evidence. Alternatively,

     defendant argues that the cumulative effect of counsel’s errors requires reversal of his

     convictions.
¶2          Defendant also argues that the statute mandating that he receive a sentence of natural life

     imprisonment was unconstitutional as applied to him because the court was without discretion to

     impose a lesser sentence based on defendant’s youth and potential for rehabilitation.

     Alternatively, defendant argues his counsel was ineffective for failing to challenge the

     constitutionality of his sentence. Defendant also argues that the court failed to properly admonish

     him pursuant to Illinois Supreme Court Rule 605(a) (Oct. 1, 2001). We affirm.

¶3                                           I. BACKGROUND

¶4          Defendant was charged with six counts of first degree murder (720 ILCS 5/9-1(a)(1),

     (a)(2), (a)(3) (West 2012)). Three codefendants—Alisa Massaro, Bethany McKee, and Joshua

     Miner—were also charged with the offenses. The indictment alleged that defendant and the

     codefendants caused the death of two victims, Eric Glover and Terrance Rankins. The indictment

     set forth three different theories with regard to each victim: (1) defendant and the codefendants

     strangled the victims with the intent to do great bodily harm, (2) defendant and the codefendants

     strangled the victims knowing such an act created a strong probability of death, and (3) while

     committing a forcible felony—namely, a robbery—defendant and the codefendants strangled the

     victims thereby causing the victims’ deaths.

¶5          The State filed a motion in limine to admit other-crimes evidence under Illinois Rule of

     Evidence 404(b) (eff. Jan. 1, 2011). The motion alleged that the State sought to introduce

     evidence “of the activity after the murders, including the purchase and consumption of cocaine,

     the use of cannabis, attempts to get rid of the victim’s vehicle, destroying the victims’ cell

     phones, *** and other evidence that supports the offenses of concealment of a homicidal death,

     robbery or abuse of a corpse.” The State also sought to introduce “evidence that the defendant




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     and Joshua Miner took marijuana and cash from the victims’ pockets.” The motion alleged these

     activities occurred “very close in time to the murders at issue.”

¶6          At the hearing on the State’s motion in limine, the State argued that the evidence of other

     crimes it sought to introduce was relevant because the other crimes were “so integral in the crime

     in this case.” Defense counsel stated she had no argument against the admission of the other-

     crimes evidence, but objected “[f]or the record.” The court granted the motion to admit other-

     crimes evidence. The court reasoned that the “forcible felony of robbery[,] the motivation behind

     what happen on that—the date of the offense[,] and what the parties did are certainly relevant.”

¶7          The State also filed a motion to allow the jury to use a transcript to aid its review of

     defendant’s videotaped police interview. The motion alleged that defendant’s voice was low and

     could not always be heard clearly on the videotaped recording. The motion also alleged there

     was an audible humming that could be heard on the recording.

¶8          At the hearing on this motion, the State said defendant spoke very softly in the recording,

     but “[u]nder close listening, you can hear it.” The State asserted that since the jurors would only

     have one chance to hear the recording, they might not hear every word spoken. The State argued

     the only way to guarantee that the jurors heard what was on the recording was for them to have a

     transcript. Defense counsel argued that the transcript should not be allowed because the case

     involved a video recording rather than a recording containing only audio, and the jurors might

     not watch the video if they were reading the transcripts. Defense counsel stated: “I think handing

     *** the jury a transcript to follow, they are more likely to read the State’s interpretation of

     what’s said as opposed to what’s actually said on the tape.” Defense counsel also argued that the

     jury would not necessarily have only one chance to review the video recording because they




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       could ask to view it again during deliberations. The court indicated it would take the motion

       under advisement and watch the video.

¶9             On the day the trial began, defense counsel stated that the court needed to address the

       matter of the transcript. Defense counsel said she and her co-counsel had reviewed the transcript,

       and the State made the corrections they requested. The court asked defense counsel whether the

       transcript was accurate, and defense counsel said yes. The court ruled that it would allow the

       State to present the transcript to the jury.

¶ 10           At trial, Detective Kevin Sepulveda testified that he and another detective interviewed

       defendant in connection with the instant case. The interview was recorded. Sepulveda reviewed a

       copy of the video-recorded interview and a transcript of the conversation. Sepulveda testified

       that everything he read in the transcript reflected what he heard in the recording. The prosecutor

       asked: “And do both the transcript and this DVD that you watched fairly and accurately portray

       the relevant portions of the interview as stipulated to by the parties in this case?” Sepulveda said

       yes.

¶ 11           The State moved to admit and publish the video recording of the interview and the

       transcript. Defense counsel objected, and the court admitted both. Before playing the video

       recording and distributing copies of the transcript to the jury, the court advised the jury that the

       videotape, rather than the transcript, was evidence. The court explained that the transcript was

       “the State’s interpretation of what [was] said on the tape” and was provided “merely to assist you

       in listening to the tape.” The court advised the jury: “[I]f your understanding of the tape diverges

       or is different from the transcript, your own interpretation of the tape is controlling.”

¶ 12           The video recording was played for the jury. In the video, defendant spoke softly and was

       difficult to hear at times. Defendant stated that on the night of the incident, McKee picked him




                                                         4

       up to go drinking. They went over to Massaro’s house. Massaro and her boyfriend, Miner, were

       at the house. McKee, Massaro, Miner, and defendant planned to ask Rankins to come over and to

       rob him when he arrived. 1 McKee said Rankins always carried a lot of cash and marijuana.

       Defendant agreed to the plan because everyone else agreed, and he did not have a way to return

       home. An officer asked defendant how they planned to rob Rankins. Defendant replied: “Beat his

       a** and if things went south, that’s where I come in and then grab his money, grab the bud and

       tell him to get the f*** out pretty much.” Defendant said Miner would be the one to beat

       Rankins, and defendant would just be there “for support” unless Miner needed assistance.

¶ 13           McKee called Rankins and asked him to come to Massaro’s house. Rankins came over

       with his cousin, Glover. Rankins and Glover brought a bottle of liquor. Defendant, Miner,

       Massaro, and McKee were not expecting Glover to accompany Rankins. When Glover arrived,

       the plan changed. Miner asked defendant if he could “take” one of the men, and defendant said

       he could. They decided to wait until they had finished the bottle of liquor before they robbed

       Rankins and Glover, so they would catch Rankins and Glover off guard. They planned to ask to

       buy some drugs from Rankins and Glover and give them $20. When Rankins and Glover took

       out their cash, Miner and defendant would grab it and tell Rankins and Glover to leave.

¶ 14           Defendant told Miner he did not want any part of it, but he would help Miner if he heard

       a scuffle or “if s*** goes on.” Defendant did not know if anything would actually happen, but he

       planned to help Miner “if anyone started boxing” because he had known Miner longer than

       Rankins and Glover. Defendant had known Miner for four days and had only known Rankins for

       two days. Defendant did not know Glover.

               1
                For purposes of this order, we identify Rankins and Glover by name during our recounting of
       defendant’s interview, though defendant did not know their names during the interview. Rather, defendant
       distinguished the two victims by their hairstyles. He said one had short hair and the other had dreadlocks.
       Other evidence in this case showed that Rankins and Glover were the victims, Rankins had short hair, and
       Glover had dreadlocks.


                                                           5

¶ 15           After Rankins and Glover arrived, everyone drank, smoked, and played video games.

       After approximately two hours, Miner exited the kitchen and accused Rankins of raping

       Massaro. Miner grabbed Rankins, put him in a chokehold, dragged him into the kitchen, and

       began fighting with him. Glover and defendant were sitting on the couch playing video games.

       Glover walked over to where Miner and Rankins were fighting and tried to help Rankins.

       Defendant pulled Glover back and told him to let Miner and Rankins “do their thing.” Glover

       said, “No, that’s my family.” Glover again tried to help Rankins, and defendant put him in a

       chokehold. Glover struggled and tried to headbutt defendant. Defendant tensed up and locked his

       legs around Glover. Glover became unconscious after approximately 60 to 90 seconds. Once

       defendant saw Glover was unconscious, he released him. Defendant could feel that Glover was

       still breathing at that time.

¶ 16           Miner walked into the room and asked defendant if Glover was dead. Defendant said he

       did not know. Defendant walked into the kitchen to check on Rankins. Defendant believed

       Rankins was dead. Rankins’s chest was not moving and he was bleeding from his nose and

       mouth. Defendant walked back into the other room. Miner instructed defendant to hold Glover

       up. Defendant complied, and Miner tied up Glover. An officer asked defendant if Glover had

       “life left in him” when they tied him up. Defendant replied: “Not much, but yeah.” Defendant

       said Glover was still breathing when Miner tied him up, and he made a gurgling noise a few

       minutes later. Miner tied up Rankins’s body. Defendant and Miner moved the bodies to another

       room. Defendant covered Rankins’s and Glover’s heads with a towel and a blanket. Miner put a

       grocery bag over Rankins’s head because he was bleeding.

¶ 17           Massaro and McKee were outside the door when the altercation took place. They came

       inside approximately five minutes after the fight and sat on the bed while Miner and defendant




                                                       6

       moved the bodies. Miner made McKee strike the bodies with an empty bottle, and he made

       Massaro kick the bodies. Miner made the women strike the bodies so they would be “an equal

       part of the situation.” Miner also kicked the bodies. Defendant did not kick the bodies.

¶ 18          Defendant said they took money from the victims after they had died. Defendant held up

       one of the bodies while Miner searched the pockets. One of the victims had $20 and the other

       had approximately $100. One of the victims also had marijuana in his pocket. Defendant said

       Miner purchased beer, cigarettes, and a blunt with the money. Defendant said they also used the

       money to purchase cocaine. All four of them used the cocaine.

¶ 19          They burned the victims’ cell phones and then submerged the phones in water. Defendant

       drove the victims’ vehicle and parked it near a hospital. McKee removed a briefcase and some

       baby items, including boots and a child’s purse, from the vehicle. Defendant, Miner, McKee, and

       Massaro returned to Massaro’s house and drank alcoholic beverages until approximately 7 a.m.

       They all passed out around 7:30 a.m. Defendant went home about two hours later and took a nap.

       Massaro called defendant and said Miner wanted defendant to bring him garbage bags, a

       blowtorch, a saw, and bleach. Defendant obtained those items and returned to Massaro’s house.

       Defendant gave Miner the items and went to the basement. Eventually, defendant heard the

       police arrive at the house.

¶ 20          The officers asked defendant what they planned to do with the items he gave to Miner.

       Defendant replied: “I guess they were just going to get rid of it. That’s what I got out of it.”

       Defendant said he knew what Miner planned to do with the bodies, but he did not want to talk

       about it because it was “f***ed up.” Miner said he was going to cut the bodies into small pieces,

       place the pieces in bags, and place the bags in dumpsters in a distant town on garbage day.




                                                         7

¶ 21          Several police officers testified they were dispatched to Massaro’s residence after

       receiving information that two corpses were located there. Two officers located defendant in the

       basement hiding behind some paneling. The officers observed a black male lying prone on the

       floor of a kitchenette area on the second floor of the residence. The man’s head was wrapped in a

       plastic bag and his hands were tied behind his back. They observed a second black male lying on

       the floor of a bedroom with his head wrapped in a plastic bag and his hands in the same position

       as the other man. The officers found a cup of water containing cell phone components at the

       scene. Photographs and a video of the bodies and the crime scene were introduced into evidence.

¶ 22          Valerie Arangelovich, a forensic pathologist, testified that she performed the autopsies of

       Rankins and Glover. Arangelovich opined that the cause of death for both Rankins and Glover

       was strangulation. Arangelovich testified that in order for an individual to die from strangulation,

       there had to be a constant external obstruction to the neck for 3½ to 6 minutes. The individual’s

       body would initially jerk violently. The individual would lose consciousness after 10 to 15

       seconds. The external pressure would have to be maintained for 3½ to 6 minutes for death to

       ensue. Arangelovich testified there were multiple areas of red bloody hemorrhage in Glover’s

       neck, which demonstrated evidence of blunt trauma to the neck. This indicated there was a

       violent struggle between the victim and offender.

¶ 23          During closing argument, defense counsel argued:

                      “The only evidence in this case of what my client said is the videotape recording,

                      not the transcript, the videotape recording. The transcript is what they believe he

                      said. They can argue what they believe just like I can argue what I believe, but

                      that is not what controls. What controls is what you heard.




                                                        8

                              When the State fails to produce evidence available in support of its

                      indictment, the State is, in effect, asking you to do its job. That is their job, not

                      yours. Their job is to put the evidence on in a coherent, decipherable manner. Not

                      to leave you guessing. Gee, what did he say? I couldn’t hear it.”

       Defense counsel further argued:

                      “Well, this case is shades of grey because we have this tape recording that we are

                      all listening to. And I think it’s fair to say we provided a transcript which the

                      judge indicated to you was to assist you, the transcript not being evidence, the

                      video being evidence.

                              I think it’s a fair statement that we couldn’t understand what was going on.

                      When I say we, I mean you too. Every one of you—I was watching—were

                      looking down at the transcript because you had no idea what [defendant] was

                      saying. You were supposed to guess or better than guess from the State’s position,

                      take their transcript and say, well, this is what he said. This is what we believe he

                      said.

                              Is that proof beyond a reasonable doubt? I submit not.”

       Defense counsel stated that one could maybe “hear 10, 20, 30 percent” of the recording.

¶ 24          Defense counsel also argued Miner was responsible for the deaths of both victims.

       Defense counsel contended Miner was responsible for Glover’s death because Miner tied Glover

       up while he was alive but unconscious.

¶ 25          The jury found defendant guilty of the first degree murder of both Glover and Rankins.

¶ 26          Defendant filed a motion for judgment notwithstanding the verdict or, in the alternative,

       for a new trial. The motion argued, inter alia, that the court erred by granting the State’s motion




                                                         9

       to allow the transcript of the interview. The motion also alleged “the sound system the [S]tate

       used to present [the video recording of defendant’s statement] distorted the sound and made an

       otherwise audible recording inaudible.” The motion argued that “based upon the State’s failure to

       present an audible recording to the jury, they failed to present any evidence as to how

       [defendant] should be held accountable for the actions of his co-defendants.”

¶ 27          At a hearing on the motion, defense counsel argued that the transcript of defendant’s

       interview with the police became the evidence of the State because the jurors’ “eyes were glued

       to the transcript” while the video was played. Defense counsel argued that the jury did not

       actually watch the video recording. Defense counsel further argued that the video recording was

       inaudible because of the State’s sound system. The State noted the defense stipulated to the

       accuracy of the transcript and argued that the State’s equipment made the recording more

       audible. The court denied defendant’s motion.

¶ 28          A presentence investigation report (PSI) was prepared. The PSI indicated defendant was

       19 years old at the time of the offense and had no criminal record. Defendant completed his

       secondary education at “an academic and therapeutic school with a concentration in meeting the

       special needs of those students with emotional and behavioral needs.” The PSI stated defendant

       had struggled with symptoms and manifestations of bipolar disorder and attention deficit

       hyperactivity disorder (ADHD), “which included self harming behaviors, grandiose thrill seeking

       behaviors and episodes of visual and auditory ideations.” Defendant’s mother told the probation

       officer defendant manifested “ ‘behaviors’ ” of bipolar disorder and ADHD very early on, and he

       was first hospitalized for these disorders when he was seven years old. Defendant was “ ‘in and

       out of hospitals, displaying self harming behaviors by the third grade.’ ” Defendant began to




                                                       10 

       reject treatment as he got older. Defendant’s mother stated that defendant probably believed he

       was doing better, but she believed he was not.

¶ 29          Defendant reported he started drinking alcohol regularly when he was 17 or 18 years old.

       Defendant usually drank in social settings with peers. Defendant said he “ ‘drank until [he]

       couldn’t drink anymore.’ ” Defendant said he started using marijuana once a month when he was

       17 years old. Defendant also used cocaine approximately twice a month, usually at parties.

       Defendant’s mother and his grandmother told the probation officer that they did not know that

       defendant used alcohol and drugs.

¶ 30          Defendant’s mother reported that defendant had “always been easily led, wanting to

       please those he took on as friends.” Defendant’s grandmother said defendant’s offense was “a

       surprise to everyone.” Defendant’s grandmother reported they “never had any problems out of

       [defendant], so this is so out of character.”

¶ 31          At the sentencing hearing, defendant presented no witnesses, but submitted letters from a

       former teacher and a family member on his behalf. One of the letters said defendant “desperately

       tried to fit in and make friends as best he could.” The other letter said defendant was easily

       influenced.

¶ 32          The court sentenced defendant to natural life imprisonment. The court noted that it had

       no option to give defendant a different sentence because the law mandated that defendant receive

       a sentence of natural life imprisonment. The court then admonished defendant regarding his

       appeal rights. The court stated: “You can file a motion to reconsider even though I can’t

       reconsider this sentence.” The court then stated that it would file a notice of appeal if defendant

       wished. Defense counsel said yes.




                                                        11 

¶ 33                                             II. ANALYSIS

¶ 34                                  A. Ineffective Assistance of Counsel

¶ 35          Defendant argues that his counsel was ineffective in that counsel (1) “raised a baseless

       defense that [defendant’s] recorded statement’s inaudible nature constituted reasonable doubt of

       his guilt despite having stipulated that a transcript of the statement was accurate,” and (2) “failed

       to redact improper other-crimes evidence from the statement.” Defendant also argues the

       cumulative effect of counsel’s errors requires reversal. We address each argument in turn.

¶ 36                                         1. Recorded Statements

¶ 37          Defendant initially argues that his counsel was ineffective for raising “a baseless defense

       that [defendant’s] recorded statement’s inaudible nature constituted reasonable doubt of his guilt

       despite having stipulated that a transcript of the statement was accurate.” We find defendant has

       failed to show he was prejudiced by counsel’s alleged deficient performance.

¶ 38          To establish a claim of ineffective assistance, a defendant must show that (1) counsel’s

       performance was deficient and (2) defendant was prejudiced by counsel’s deficient performance.

       Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show that a defendant was

       prejudiced by counsel’s deficiencies, “[t]he defendant must show that there is a reasonable

       probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

       been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.” Id.

¶ 39          Even if we were to accept defendant’s argument that defense counsel performed

       deficiently in arguing that the inaudible nature of the recorded statement rendered it insufficient

       to establish defendant’s guilt while stipulating to the accuracy of the transcript, defendant has not

       shown prejudice. That is, defendant has not shown there is a reasonable probability that the



                                                        12 

       outcome of the trial would have been different absent counsel’s “baseless” argument.

       Significantly, defendant does not argue that the transcript was inaccurate.

¶ 40          Moreover, the State presented ample evidence at trial to prove defendant was guilty of

       first degree murder—as a principal, regarding the death of Glover, and under a theory of

       accountability, regarding the death of Rankins. In the recorded statement, defendant stated that

       he, Miner, Massaro, and McKee planned to rob Rankins. When Glover arrived with Rankins,

       defendant agreed to “take” one of the victims. Defendant said Miner put Rankins in a chokehold

       and took him into another room. When Glover tried to aid Rankins, defendant put Glover in a

       chokehold until he was unconscious. Although defendant said Glover was still breathing when he

       released him, he indicated Glover was near death. Defendant then held Glover’s body while

       Miner tied him up. When defendant went to check on Rankins, he believed Rankins was dead.

       After the victims had died, Miner searched their pockets and removed money and marijuana.

       Defendant, Miner, McKee, and Massaro used the money they found in the victims’ pockets to

       buy alcohol, marijuana, and cocaine, which they all consumed. Several police officers testified to

       finding the bodies tied up as defendant had described. Arangelovich testified that the cause of

       death for both Rankins and Glover was strangulation. Arangelovich stated that to die from

       strangulation, there had to be a constant external obstruction to the neck for 3½ to 6 minutes.

¶ 41                                       2. Other-Crimes Evidence

¶ 42          Defendant argues that counsel was ineffective “for failing to redact irrelevant and

       prejudicial portions of [defendant’s] videotaped statement that were improperly admitted as

       other-crimes evidence.” Specifically, defendant objects to the admission of his statements

       describing how (1) Miner planned to dispose of the victims’ bodies by cutting them up and

       throwing the pieces in the garbage, (2) Massaro and Miner kicked the victims’ bodies,



                                                       13 

        (3) McKee struck the victims’ bodies with a bottle, and (4) McKee removed items from the

        victims’ vehicle.

¶ 43           Initially, we note that all of the statements that defendant claims were improper concern

        actions taken by his codefendants rather than by him personally. However, “the concerns

        underlying the admission of other-crimes evidence are not present when the uncharged crime or

        bad act was not committed by the defendant.” People v. Pikes, 2013 IL 115171, ¶ 16. Evidence

        of bad acts committed by persons other than the defendant should be analyzed “under ordinary

        principles of relevance.” Id. ¶ 20.

¶ 44           Even if we were to assume the court would have granted a motion to suppress these

        portions of defendant’s recorded statement on the basis that these acts were irrelevant, defendant

        was not prejudiced by counsel’s alleged error. “[I]n order to establish prejudice under Strickland,

        the defendant must demonstrate that the unargued suppression motion is meritorious, and that a

        reasonable probability exists that the trial outcome would have been different had the evidence

        been suppressed.” People v. Henderson, 2013 IL 114040, ¶ 15.

¶ 45	          In the instant case, defendant has not demonstrated that a reasonable probability exists

        that the result of his trial would have been different had the evidence of his codefendants’ bad

        acts been suppressed. Defendant confessed to holding Glover in a chokehold until he passed out

        and later died while Miner did the same to Rankins. Arangelovich testified that the cause of

        death for both Rankins and Glover was strangulation. Before defendant and Miner strangled the

        victims, they discussed a plan to rob them. Miner and defendant carried out this plan after the

        victims had died. Given this strong evidence of defendant’s guilt, it is not reasonably probable

        that the jury would have reached a different verdict had there been no evidence regarding




                                                        14 

       Miner’s plan to dispose of the bodies, Miner and Massaro kicking the bodies, McKee striking the

       bodies with a bottle, and McKee stealing items from the victims’ car.

¶ 46          Defendant also argues that counsel was ineffective for failing to object during closing

       argument when the prosecutor stated defendant planned to cut the bodies into pieces and put the

       pieces in dumpsters. Specifically, the State argued:

                              “There’s a portion in the interview where they’re talking about this issue

                      of how they’ve disposed of the bodies. And this is really telling about who this

                      man is here that is sitting before you.

                              He said he was going to cut them up in little pieces, a lot of little pieces,

                      and pretty much carve them up like a sandwich and, you know, just grind it down.

                              You know, you make neat bags and just place it around town, you know,

                      somewhere far. He said, we’ve got to go somewhere, a distance, and go when it’s

                      garbage day, when the garbage is being thrown out, and just place one bag in each

                      one of them, hack them up, and burn the s***. Hack them up like somewhere in

                      the basement, a pile of friggin’ meat. And he said that so matter-of-factly.”

¶ 47          Defendant correctly notes that he told the police Miner planned to do this rather than him.

       The prosecutor erred by wrongly attributing this behavior to defendant. See People v. Glasper,

       234 Ill. 2d 173, 204 (2009) (“Prosecutors may not argue *** facts not contained in the record.”).

       However, given the strength of the State’s evidence, defendant has not shown that there is a

       reasonable probability that the outcome of the trial would have been different had defense

       counsel objected to the prosecutor’s statement. Significantly, the court instructed the jury that it

       should disregard any argument made by the attorneys that was not based on the evidence.




                                                        15 

¶ 48                                           3. Cumulative Error

¶ 49          We reject defendant’s argument that the cumulative effect of counsel’s errors satisfies the

       prejudice prong of the Strickland analysis. Given the strong evidence of defendant’s guilt,

       defendant has not shown that a reasonable probability exists that the outcome of the trial would

       have been different but for counsel’s errors, even when considered cumulatively.

¶ 50                          B. Eighth Amendment and Proportionate Penalties Clause

¶ 51          Defendant argues that the sentencing statute mandating natural life imprisonment (see

       730 ILCS 5/5-8-1(c)(ii) (West 2012)) violated the eighth amendment of the United States

       Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois

       Constitution (Ill. Const. 1970, art. 1, § 11) as applied to him because it did not allow the court to

       take his youth, social or mental health history, or rehabilitative potential into consideration.

¶ 52          Defendant cites the United States Supreme Court’s holding in Miller v. Alabama, 567

       U.S. 460 (2012), in support of his argument. In Miller, the Court held that mandatory life

       sentences for juveniles violated the eighth amendment’s ban on cruel and unusual punishment.

       Id. at 489. Defendant contends that although he was 19 years old at the time of the offense, the

       holding in Miller should be applied to him because he possessed many of the characteristics that

       make mandatory life imprisonment an unconstitutionally disproportionate sentence for juveniles.

       Defendant argues his behavior on the night of the incident showed immaturity, impetuous

       decision-making, and vulnerability to peer pressure. Defendant also argues that his “mental

       health issues could have only exacerbated his underdeveloped maturity.” Defendant also

       contends that evidence contained in the PSI showed he had strong rehabilitative potential.

¶ 53          “All as-applied constitutional challenges are, by definition, dependent on the specific

       facts and circumstances of the person raising the challenge.” People v. Harris, 2018 IL 121932,



                                                        16 

       ¶ 39. Consequently, “it is paramount that the record be sufficiently developed in terms of those

       facts and circumstances for purposes of appellate review.” People v. Thompson, 2015 IL 118151,

       ¶ 37. “[A] reviewing court is not capable of making an as-applied finding of unconstitutionality

       in the ‘factual vacuum’ created by the absence of an evidentiary hearing and findings of fact by

       the trial court.” Harris, 2018 IL 121932, ¶ 41 (quoting People v. Minnis, 2016 IL 119563, ¶ 19).

       Thus, “ ‘ “[w]ithout an evidentiary record, any finding that a statute is unconstitutional ‘as

       applied’ is premature.” ’ ” (Internal quotation marks omitted.) Id. ¶ 39 (quoting People v. Rizzo,

       2016 IL 118599, ¶ 26, quoting People v. Mosley, 2015 IL 115872, ¶ 47).

¶ 54          In Thompson, 2015 IL 118151, ¶¶ 4, 7, the defendant was convicted of first degree

       murder for an offense that occurred when he was 19 years old and given a mandatory sentence of

       natural life imprisonment. The defendant argued the statute mandating life imprisonment was

       unconstitutional as applied to him under the eighth amendment because it did not allow the court

       to consider his youth. Id. ¶ 21. The Thompson court held that the defendant forfeited his as-

       applied constitutional challenge by raising it for the first time on appeal from the dismissal of his

       petition for relief from judgment. Id. ¶ 39. The court reasoned:

                      “To support his as-applied challenge, defendant relies exclusively on the

                      ‘evolving science’ on juvenile maturity and brain development that formed the

                      basis of the Miller decision to ban mandatory natural life sentences for minors.

                      Defendant maintains that this science applies with ‘equal force’ to a criminal

                      defendant who was between the ages of 18 and 21 when the underlying crime was

                      committed. The record here, however, contains nothing about how that science

                      applies to the circumstances of defendant’s case, the key showing for an as-

                      applied constitutional challenge. Nor does the record contain any factual



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                       development on the issue of whether the rationale of Miller should be extended

                       beyond minors under the age of 18. Undoubtedly, the trial court is the most

                       appropriate tribunal for the type of factual development necessary to adequately

                       address defendant’s as-applied challenge in this case.” Id. ¶ 38.

¶ 55           The Illinois Supreme Court reached a similar holding in its recent opinion in Harris,

       2018 IL 121932. In Harris, the defendant was 18 years old at the time of his offense and

       received a mandatory aggregate sentence of 76 years’ imprisonment. Id. ¶¶ 35-36. The defendant

       argued that the statutory sentencing scheme mandated a de facto life sentence and violated the

       proportionate penalties clause as applied to him given his youth and other mitigating factors. Id.

       ¶ 36. The supreme court held that defendant’s as-applied challenge was premature because he

       failed to raise it in the trial court. Id. ¶ 46. The court reasoned:

                       “The record *** includes only basic information about defendant, primarily from

                       the [PSI]. An evidentiary hearing was not held, and the trial court did not make

                       any findings on the critical facts needed to determine whether Miller applies to

                       defendant as an adult. As in Thompson, the record here does not contain evidence

                       about how the evolving science on juvenile maturity and brain development that

                       helped form the basis for the Miller decision applies to defendant’s specific facts

                       and circumstances.” Id.

¶ 56           Like in Thompson and Harris, the record in the instant case is not sufficiently developed

       to address defendant’s as-applied constitutional claim. As in Harris, the record contains “only

       basic information about defendant, primarily from the [PSI].” Id. While the PSI in the instant

       case discussed defendant’s history of mental illness and susceptibility to peer pressure, there was

       no sworn testimony or factual findings regarding these matters. Also, like in Thompson and



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       Harris, “the record *** [did] not contain evidence about how the evolving science on juvenile

       maturity and brain development that helped form the basis for the Miller decision applies to

       defendant’s specific facts and circumstances.” Id.

¶ 57          Similarly, we find that defendant’s argument that his counsel was ineffective for failing

       to raise an as-applied constitutional challenge and failing to present evidence in support of the

       claim is premature. The record in this case does not disclose what evidence defense counsel

       could have presented to show how the evolving science on juvenile maturity and brain

       development could be applied to this case. Accordingly, it is impossible for us to determine

       whether defendant was prejudiced by counsel’s failure to raise this issue or present evidence in

       support of it. This argument is better suited to postconviction proceedings, where defendant may

       present any evidence that he believes counsel should have offered in support of an as-applied

       constitutional challenge to his sentence. See People v. Cherry, 2016 IL 118728, ¶ 33.

¶ 58                                        C. Rule 605(a) Violation

¶ 59          Defendant argues that the court failed to properly admonish him as to how to preserve his

       sentencing claims for review under Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001).

       Specifically, defendant contends the court erred by stating: “You can file a motion to reconsider

       even though I can’t reconsider this sentence.” Defendant argues he was prejudiced by the court’s

       improper admonishment because he could have filed a motion to reconsider, challenging his

       mandatory sentence of natural life imprisonment on the basis that it was unconstitutional as

       applied to him. Accordingly, defendant argues we should either address the issue on appeal or

       remand the matter to give defendant the opportunity to raise the issue in a motion to reconsider

       sentence and to present evidence in support of it. We have already determined the record is




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       insufficient to address this claim on appeal. We also decline to remand the matter to the trial

       court as we believe this issue is more appropriately raised in a postconviction petition.

¶ 60          Rule 605(a) provides that, at the time of imposing sentence, the trial court must advise

       the defendant:

                        “[P]rior to taking an appeal, if the defendant seeks to challenge the correctness of

                        the sentence, or any aspect of the sentencing hearing, the defendant must file in

                        the trial court within 30 days of the date on which sentence is imposed a written

                        motion asking to have the trial court reconsider the sentence imposed, or consider

                        any challenges to the sentencing hearing, setting forth in the motion all issues or

                        claims of error regarding the sentence imposed or the sentencing hearing[.]” Ill. S.

                        Ct. R. 605(a)(3)(B) (eff. Oct. 1, 2001).

       Rule 605(a) also requires the court to admonish the defendant “that any issue or claim of error

       regarding the sentence imposed or any aspect of the sentencing hearing not raised in the written

       motion shall be deemed waived.” Ill. S. Ct. R. 605(a)(3)(C) (eff. Oct. 1, 2001). “[W]here a

       defendant is given incomplete Rule 605(a) admonishments regarding the preservation of

       sentencing issues for appeal, remand is required only where there has been prejudice or a denial

       of real justice as a result of the inadequate admonishment.” People v. Henderson, 217 Ill. 2d 449,

       466 (2005).

¶ 61          “[T]he purpose of a motion to reconsider the sentence is not to conduct a new sentencing

       hearing. Rather, ‘[t]he purpose of a motion to reconsider a sentence is to allow the trial court an

       opportunity to review the appropriateness of the sentence imposed and correct any errors

       made.’ ” People v. Vernon, 285 Ill. App. 3d 302, 304 (1996) (quoting People v. Root, 234 Ill.

       App. 3d 250, 251 (1992)). See also People v. Burnett, 237 Ill. 2d 381, 387 (2010) (“The purpose



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       of a motion to reconsider sentence is not to conduct a new sentencing hearing, but rather to bring

       to the circuit court’s attention changes in the law, errors in the court’s previous application of

       existing law, and newly discovered evidence that was not available at the time of the hearing.”).

¶ 62          Here, the court erred by failing to give defendant complete admonishments pursuant to

       Rule 605(a) regarding the filing of a motion to reconsider sentence. However, defendant has not

       established he suffered prejudice or a denial of real justice as a result. Defendant does not seek

       remand to file a motion to reconsider arguing that an error occurred in the sentencing hearing,

       informing the court of changes in the law, or presenting newly discovered evidence—which are

       claims appropriately raised in a motion to reconsider. Vernon, 285 Ill. App. 3d at 304; Burnett,

       237 Ill. 2d at 387. Rather, defendant seeks to argue for the first time that the sentencing statute is

       unconstitutional as applied to him and to present evidence in support of this claim. Such an as-

       applied challenge could have been raised at the original sentencing hearing but was not. We

       believe that an as-applied constitutional challenge, which would require the presentation of

       evidence outside the record, is more appropriately raised in postconviction proceedings. Cherry,

       2016 IL 118728, ¶ 33 (“[T]he Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West

       2010)) *** specifically allows for the raising of ‘constitutional questions which, by their nature,

       depend[ ] upon facts not found in the record.’ ” (quoting People v. Thomas, 38 Ill. 2d 321, 324

       (1967))).

¶ 63                                           III. CONCLUSION

¶ 64          For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 65          Affirmed.




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