                                       2018 IL App (1st) 150343


                                                                            FIRST DISTRICT
                                                                            FIFTH DIVISION
                                                                            March 30, 2018


No. 1-15-0343


                                                                )   Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,                            )   Circuit Court of
                                                                )   Cook County
                Plaintiff-Appellee,                             )
                                                                )
v.                                                              )   No. 12 CR 13176
                                                                )
ANTUAN JOINER,                                                  )
                                                                )   Honorable
                Defendant-Appellant.                            )   Vincent M. Gaughan,
                                                                )   Judge Presiding.


       PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
       Justices Lampkin and Rochford concurred in the judgment and opinion.


                                            OPINION

¶1     After a bench trial, 16-year-old defendant Antuan Joiner was convicted of first degree

murder (720 ILCS 5/9-1(a)(1) (West 2012)) and two counts of attempted murder (720 ILCS 5/8­

4(a) (West 2012)) and sentenced to 71 years’ imprisonment in the Illinois Department of

Corrections. On appeal, defendant contends his trial counsel provided ineffective assistance by

failing to move to suppress suggestive photo array and lineup identifications. Defendant also

contends that the State failed to prove beyond a reasonable doubt that he was the perpetrator of

the offense and that his due process rights were violated when the trial court improperly shifted

the burden of proof. Defendant further maintains that his sentence is unconstitutional under
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Miller v. Alabama, 567 U.S. 460 (2012), and that the new juvenile sentencing provisions making

firearm enhancements discretionary apply retroactively, requiring this matter to be remanded for

resentencing. For the reasons that follow, we affirm the judgment of the circuit court finding

defendant guilty of murder and attempted murder, but remand the matter for resentencing.

¶2                                       BACKGROUND

¶3       Defendant was charged by indictment in pertinent part with the first degree murder of

Shakaki Asphy (Asphy) and the attempted murders of Leon and Thomas Cunningham. The

indictment alleged that on June 16, 2012, defendant personally discharged a firearm in the

direction of the victims and that defendant’s actions caused the death of Asphy as well as serious

injury to Leon. Defendant, who was 16 years old at the time of the offense, was prosecuted as an

adult (see 705 ILCS 405/5-130(1)(a)(i) (West 2012)). The matter then proceeded to a bench

trial.

¶4       Leon Cunningham testified as follows. On June 16, 2012, he was 18 years old and a

member of the Gangster Disciples, “70th Set” (a faction within the Gangster Disciples

streetgang). He was also bound to a wheelchair because he is paralyzed from the waist down.

At 7 p.m., he was socializing with friends, including Thomas and Asphy, outside an abandoned

building on the 2000 block of West 70th Place when he observed a gray vehicle drive past. Leon

testified that he observed defendant, who he knew by the nickname “Monkey Man,” inside the

vehicle. Leon explained that while he did not know defendant personally, he had seen him

around the neighborhood and was aware defendant was a member of the “D-Block” faction of

the Gangster Disciples. According to Leon, when the vehicle drove past he felt something was

“wrong,” but nevertheless remained outside the house.

¶5       Shortly thereafter, everyone except Leon, Thomas, and Asphy left. Leon was in his



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wheelchair at the base of the porch stairs, Thomas was standing at the top of the stairs, and

Asphy was perched on the porch railing near the top of the stairs. Suddenly, Leon observed a

man wearing a black hooded sweatshirt, with the hood drawn over his head, appear in the east-

side gangway of the abandoned building holding a firearm. Leon identified this individual as

defendant, who he continued to refer to by his nickname, “Monkey Man.” Leon testified he was

10 or 15 feet away from defendant when he began shooting. Leon further testified that he had a

clear view of the weapon, which he identified as a semiautomatic “9” with an “extended clip.”

As defendant fired his weapon, Thomas ran from the porch. With nowhere to go, Leon remained

at the base of the porch.

¶6     After the shooting ceased, Leon observed defendant run back through the gangway.

Leon noticed Asphy lying on the porch and wheeled himself over toward his own home next

door to seek assistance, but remained outside on the sidewalk. Shortly thereafter he recognized

that he was bleeding, having been shot in the left knee. Paramedics and police officers arrived

and removed both Leon and Asphy in separate ambulances to Christ Hospital. Leon testified that

when he was at the hospital he informed the police officers that “Monkey Man” shot him, but did

not provide them with a physical description of the perpetrator.

¶7     Leon further testified that the following day, a detective visited him at the hospital and

presented him with a photo array. According to Leon, “Monkey Man” was not depicted in the

photo array. On June 18, 2012, Leon was presented with a second photo array and identified

defendant as the perpetrator of the offense.

¶8     On cross-examination, Leon testified that the gray automobile drove past him quickly and

did not stop, so he was “guessing” that he observed “Monkey Man” inside the vehicle. He

further testified that he was “guessing” that defendant was a member of “D-Block.” Leon also



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testified that there were “problems,” i.e., shootings, between the “70th Set” and the “D-Block.”

Leon testified that he had fought with members of “D-Block,” but not with defendant personally.

¶9     Leon also testified that he did not inform the responding officers that “Monkey Man” had

shot him, but did relay to the paramedics that he observed the shooter. He did not, however,

inform the paramedics that “Monkey Man” shot him.

¶ 10   Leon further testified on cross-examination that his brother Thomas visited him at the

hospital on June 19, 2012, and they discussed the shooting and their desire to find the

perpetrator. Leon was also extensively questioned regarding the color of the hooded sweatshirt,

and, even after being impeached with his grand jury testimony, insisted the sweatshirt was black

and not gray.

¶ 11   Thomas Cunningham, who was 17 years old at the time of the incident, testified that on

June 16, 2012, at 7 p.m., he was sitting on the porch of an abandoned house with Leon and

Asphy celebrating a friend’s birthday and smoking marijuana. Leon was in his wheelchair at the

base of the stairs. Thomas then observed “Monkey Man” come through the gangway with a gray

hood tied around his head. 1 Thomas identified “Monkey Man” as defendant and testified he had

known him from the neighborhood “for a while.” Defendant was 10 feet away from Thomas and

his face was clearly visible despite the hood being tied around it. At that moment, defendant

then started firing his weapon, initially toward Asphy and then at him. Thomas ducked behind

the brick porch wall then he jumped off the porch and ran across a vacant lot. When he could no

longer hear gunfire, Thomas returned to the abandoned house and discovered Asphy lying on the

porch. Thomas was unaware his brother had also been shot and left the scene before his brother

was placed in the ambulance.

       1
       When Thomas first references defendant, the trial transcript indicates he said “Money
Man came through the gangway.” Thereafter, Thomas refers to defendant as “Monkey Man.”
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¶ 12      On the evening of June 18, 2012, police officers came to Thomas’ residence and

requested he come to the police station to view a lineup. Thomas, accompanied by his mother,

viewed a lineup at the police station where he identified defendant as the individual who had shot

at him.

¶ 13      On cross-examination, Thomas testified that Leon was also smoking marijuana at the

time of the shooting. Thomas further testified that he did not tell the responding officers that

defendant shot at him, nor did he go to the police station of his own volition to inform them of

the identity of the shooter. Thomas also testified that he went to the hospital to visit his brother

on June 18, 2012. Thomas further testified that while he had spoken with Leon prior to

identifying defendant in the lineup, they did not discuss the identity of the shooter.

¶ 14      Thomas was also extensively questioned by defense counsel as to how he was acquainted

with defendant. Thomas testified that he knew defendant from the neighborhood for “a couple of

years,” but when pressed to give a precise number, Thomas replied colloquially that, “I known

[sic] him for a minute. I can’t give you no years. I know him from the neighborhood.” Thomas

further testified that he was not friends with defendant and had never spoken with him. Thomas

also testified that he was surprised that defendant would “come and shoot” him “[b]ecause I ain’t

never did nothing to [the] dude [sic].”

¶ 15      Cornelius Byther (Byther) testified that at 7 p.m. on June 16, 2012, he was washing his

vehicle in the alley in the 7100 block of South Damen Avenue when he heard some “pops”

coming from the north. Minutes later, in the corner of his eye, he noticed two young men

running south in the alley toward him. He could not recall what they were wearing and did not

observe their faces. He did, however, see them climb over a garbage can and jump over a fence

to an abandoned house. Shortly thereafter the police arrived and Byther informed them of what



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he had observed.

¶ 16   Officer Lester Vaughan (Vaughan) of the Chicago police department testified that on

June 16, 2012, he responded to a call of shots fired in the area of 70th Place and Damen Avenue.

Vaughan and his partner, Marshaun Wright (Wright), responded instead to the area of West 71st

Street and South Seeley Avenue based on their knowledge of a gang feud between “D-Block”

and the “70th Set.” Specifically, Vaughan went to an abandoned building on the 7100 block of

South Seeley Avenue, which was used by “D-Block” members. Approaching the house from the

rear, Vaughan observed an open basement door and a black baseball cap on the stairs going

down to the basement. Vaughn and Wright proceeded into the basement to look for an offender.

In doing so, he observed a gray hooded sweatshirt on the floor with a 9mm handgun on top of it

and he noticed a loaded magazine “not too far from where the weapon was.” He secured the area

and called for an evidence technician. Photographs taken by the evidence technician were

admitted into evidence which depicted the back of the abandoned house spray painted with “D-

Block” graffiti. Also admitted into evidence were photographs of the black baseball cap on the

steps, the gray hooded sweatshirt with a handgun on top, and the magazine with bullets on a

nearby window sill.

¶ 17   The following day, Vaughan was assigned to look for defendant. He went to defendant’s

residence and spoke with defendant’s mother, after which he and Wright located defendant and

placed him into custody.

¶ 18   On cross-examination, Vaughan testified that he was inside the abandoned house on

Seeley Avenue five minutes after he was notified of the shooting. Vaughan further testified that

defendant resided in the 1300 block of West 77th Street and was arrested without incident.

¶ 19   Officer Steve Swain (Swain), an evidence technician with the Chicago police department,



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testified he received an assignment on June 16, 2012, at 7:46 p.m. to process a scene on the 2000

block of West 70th Place. Upon viewing the scene, Swain discovered seven cartridge casings he

believed originated from a semiautomatic pistol. These casings were inventoried and forwarded

to the lab for analysis. Swain then relocated to the abandoned house on the 7100 block of South

Seeley Avenue where he photographed the alley and processed a garbage can, which had what

appeared to be handprints and footwear marks on top of the lid. Swain also recovered a black

baseball hat, a gray sweatshirt, a handgun, and a loaded magazine. These items were then

processed and inventoried by Swain. On cross-examination, Swain explained that in processing

the handgun, he swabbed areas of the weapon where more DNA would likely exist, such as the

handle.

¶ 20      Detective Marc Delfavero (Delfavero) of the Chicago police department testified that on

June 16, 2012, he received an assignment to investigate a shooting that had occurred. Delfavero

went to Christ Hospital with his partner, Detective William Meador (Meador), to locate the

victims. Delfavero then spoke with Leon, who was being treated in the emergency room. Leon

informed him that “Monkey Man” shot him. Delfavero was unsuccessful in interviewing Asphy,

as she was in surgery at that time. Delfavero then proceeded to the scene of the offense where he

observed the cartridge casings. Thereafter he traveled to the abandoned house on South Seeley

Avenue where he observed the hat, sweatshirt, handgun, and magazine.

¶ 21      The following day, Delfavero learned that Asphy had succumbed to her wounds.

Delfavero then prepared a photo array and returned to Christ Hospital that evening where he met

with Leon. Delfavero read Leon the photo spread advisory form, which Leon signed, and

presented him with the photo array. Leon, however, did not make an identification from that

array. Leon then advised Delfavero that the suspect had “smaller twists braids in his hair and he



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had also been shot in the area of 71st and Winchester a few months prior to this.”

¶ 22   On June 18, 2012, Delfavero and Meador reviewed police reports and then went to

Dunbar High School where they met with a school official. Following a conversation with him,

the detectives received a photograph of defendant. The detectives returned to the police station,

prepared a new photo array, and returned to Christ Hospital where they presented it to Leon at

5:20 p.m. After signing the photo spread advisory form, Leon identified defendant’s photo as

that of “Monkey Man,” the individual who shot him and Asphy. Delfavero informed tactical

officers of the identification and subsequently defendant was placed in custody at 7 p.m.

¶ 23   Thereafter, Delfavero picked up Thomas and Thomas’ mother at their home and

transported them to the police station where Thomas was to view a physical lineup. Prior to

viewing the lineup, Thomas was provided and read a lineup advisory form, which he and his

mother signed. Upon viewing the lineup, Thomas identified defendant as the shooter.

¶ 24   On cross-examination, Delfavero testified that after defendant was in custody, a woman

(whose name he could not recall) provided him with information that pointed to another suspect.

Delfavero, however, determined there was no need to follow up based on that information.

Delfavero explained that while this woman voluntarily relayed this information to him, she

refused to speak with a State’s attorney or provide a statement.

¶ 25   The parties entered into various stipulations, which included fingerprint and

deoxyribonucleic acid (DNA) test results regarding defendant and another individual, Matthew

Smith. The stipulations established as follows. The gray hooded sweatshirt tested positive for

gunshot residue, indicating that it had come in contact with an item that had gunshot residue on it

or it had been in the environment of a discharged firearm. The recovered handgun was tested

and determined to be the same firearm which fired the cartridge casings recovered from the



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scene of the shooting. No suitable fingerprints were discovered on the handgun, the magazine,

or the cartridge. However, two fingerprint lifts from the garbage can in the alley were tested and

neither were found to be a match for defendant or Matthew Smith.

¶ 26   The parties also entered into stipulations regarding the DNA analysis of the gray hooded

sweatshirt, black baseball hat, and handgun. The DNA analysis revealed that there was a

mixture of DNA profiles on these items, but excluded defendant as a potential donor to these

mixtures. The parties, however, further stipulated that it is possible to wear an article of clothing

or handle a handgun and not leave enough DNA to be detected. Additionally, the stipulation

provided that Matthew Smith was excluded as a potential donor to the DNA profile on the

sweatshirt, but could not be excluded as a potential donor to the DNA profile on the baseball hat

or the handgun. The stipulation further indicated that the chances a random individual would be

included in the DNA mixture on the baseball hat is “1 in 6 Black, 1 in 23 White, or 1 in 14

Hispanic unrelated individuals” and the chances a random person would be included in the DNA

mixture on the handgun is “1 in 4 Black, 1 in 5 White or 1 in 4 Hispanic individuals.”

¶ 27   The State rested and the defense moved for a directed finding, which was denied.

Defendant then presented the testimony of Debra Bartecki (Bartecki), a paramedic with the

Chicago fire department. Bartecki testified that on June 16, 2012, she responded to the scene on

West 70th Place at 7:09 p.m. where she treated Leon. Bartecki inquired where Leon was hurt

and how he became injured. Leon informed Bartecki that he had been shot, but that he had a

condition where he could not feel his legs. During the seven minute drive to Christ Hospital,

Leon did not say who shot him, nor did Bartecki so inquire. In fact, Leon did not provide her

with any details about how he came to be shot.

¶ 28   The defense then rested and the parties presented closing arguments. The State argued



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that Leon and Thomas were credible witnesses and that it proved all of the elements of the

offenses charged. The defense, on the other hand, argued Leon and Thomas were not credible

and emphasized that there was no DNA evidence linking defendant to the physical evidence.

The defense further argued that the State presented no motive for defendant to commit this

offense.

¶ 29   After considering the evidence and hearing closing arguments, the trial court ultimately

found defendant guilty of murder and two counts of attempted first degree murder.

¶ 30   Thereafter, defendant presented a motion for a new trial. At the hearing on the motion,

defense counsel argued that the trial court improperly shifted the burden of proof onto defendant.

The trial court addressed this claim stating, “Just for clarification, the burden never shifts, the

burden of proof never shifted to the defense. If there was any ambiguity, I just want to clarify

that.” The trial court then denied the motion.

¶ 31   After hearing arguments in aggravation and mitigation, as well as reviewing the

presentencing investigation report, the trial court imposed the mandatory minimum sentence of

45 years’ imprisonment for the first degree murder conviction. This sentence consisted of the

minimum 20-year sentence for murder (see 730 ILCS 5/5-4.5-20(a) (West 2012) (providing a

range of 20 to 60 years)), plus a minimum 25-year mandatory firearm enhancement (see 730

ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)). The court also sentenced defendant to 26 years’

imprisonment for each of the two attempted murder convictions. The 26-year sentences

consisted of the minimum 6-year sentence for attempted murder (see 730 ILCS 5/5-4.5-25(a)

(West 2012)), plus a 20-year mandatory firearm enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(ii)

(West 2012)). In addition, the trial court determined that while defendant’s sentences for first

degree murder and attempted murder would run consecutively, the two convictions for attempted



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murder would run concurrently. As a result, defendant was sentenced to a mandatory minimum

aggregate sentence of 71 years’ imprisonment. Further, in light of the truth in sentencing statute

(730 ILCS 5/3-6-3 (West 2012)), defendant would be required to serve a minimum of 66 years of

the 71-year sentence imposed before he would be eligible for release. Defendant appealed.

¶ 32                                         ANALYSIS

¶ 33   Defendant raises five contentions on appeal that (1) his counsel was ineffective for failing

to file a motion to suppress the pretrial identifications of him as the shooter, (2) the State failed

to prove beyond a reasonable doubt that he was the perpetrator of the offense, (3) his due process

rights were violated when the trial court improperly shifted the burden of proof requiring him to

prove his innocence, (4) his sentence is unconstitutional, and (5) the new juvenile sentencing

provisions making firearm enhancements discretionary apply retroactively and thus the matter

must be remanded for resentencing in accordance with the new statutory guidelines. We address

each contention in turn.

¶ 34                           Ineffective Assistance of Counsel

¶ 35   Defendant first argues that his counsel was ineffective for failing to move to suppress the

photographic and lineup identification evidence. Defendant maintains that the procedures

employed during the identifications were suggestive. Defendant asserts that in the photo array,

his was the only image that was depicted on a red background and he was the only individual

whose hair was styled in short braids. Regarding the lineup, defendant contends that it too was

improper where he was the only individual included with “dark skin” and short braids.

Defendant concludes that because a motion to suppress identification evidence in this instance

had merit, defense counsel was ineffective for failing to present one to the trial court.

¶ 36   In response, the State asserts that defendant’s trial counsel was not ineffective where a



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pretrial motion to suppress the identification evidence would have been futile since the

identification procedures were not unduly suggestive. The State further argues that Leon and

Thomas were both eyewitnesses to the crime and their identifications were independently

reliable. Thus, defendant was not prejudiced where the trial outcome would not have been any

different had the evidence been suppressed.

¶ 37   A defendant has a sixth amendment right to effective assistance of counsel. U.S. Const.,

amends. VI, XIV; Ill. Const. 1970, art. I, § 8. An accused is entitled to capable legal

representation at trial. People v. Wiley, 165 Ill. 2d 259, 284 (1995). To establish a claim of

ineffective assistance of counsel, a defendant must prove both (1) deficient performance by

counsel and (2) prejudice to defendant. People v. Smith, 195 Ill. 2d 179, 187-88 (2000) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). To satisfy the first prong of the Strickland

test, a defendant must demonstrate his counsel’s performance fell below an objective standard of

reasonableness, as measured by prevailing norms. Smith, 195 Ill. 2d at 188. “To establish

deficient performance, the defendant must overcome the strong presumption that counsel’s

action or inaction was the result of sound trial strategy.” People v. Perry, 224 Ill. 2d 312, 341-42

(2007). To satisfy the second prong, prejudice is demonstrated if there is a reasonable

probability that, but for counsel’s deficient performance, the outcome of the proceeding would

have been different. People v. Albanese, 104 Ill. 2d 504, 525 (1984); People v. Echols, 382 Ill.

App. 3d 309, 312 (2008). The failure to satisfy either the deficiency prong or the prejudice

prong of the Strickland test precludes a finding of ineffective assistance of counsel. Strickland,

466 U.S. at 697; People v. Peeples, 205 Ill. 2d 480, 513 (2002).

¶ 38   Where a defendant alleges that counsel was ineffective for failing to file a motion to

suppress evidence, the defendant must overcome the “strong presumption” that counsel’s



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decision was the result of sound trial strategy. People v. Little, 322 Ill. App. 3d 607, 611 (2001).

Additionally, the defendant must demonstrate there was a reasonable probability that the motion

would have been granted and the outcome of the proceedings would have been different had the

evidence been suppressed. People v. Patterson, 217 Ill. 2d 407, 438 (2005). Counsel is not

incompetent for failing to file a futile motion to suppress. Id.

¶ 39   More specifically, when challenging the propriety of a pretrial identification procedure,

the defendant bears the burden of proving that the procedure was unnecessarily suggestive and

created a substantial likelihood of misidentification. People v. Lawson, 2015 IL App (1st)

120751, ¶ 39. The State may rebut defendant’s showing by “clear and convincing evidence that

the witness is identifying the defendant based on his or her independent recollection of the

incident.” People v. Brooks, 187 Ill. 2d 91, 126 (1999). Courts look to the totality of the

circumstances when reviewing a claim of an unnecessarily suggestive identification. Lawson,

2015 IL App (1st) 120751, ¶ 39. Where the challenged identification procedure is a photo array

or lineup, individuals selected for the array or lineup need not be physically identical. People v.

Allen, 376 Ill. App. 3d 511, 521 (2007). A witness’ pretrial identification of an accused will not

be suppressed unless the identification procedure employed was unnecessarily suggestive and

there was a substantial likelihood of irreparable misidentification such that he was denied due

process. People v. Enis, 163 Ill. 2d 367, 398 (1994).

¶ 40   In this case, defendant challenges the propriety of the photo array and lineup in which he

was identified as the perpetrator of the offense.

¶ 41   After examining the copy of the photo array and a photograph of the lineup, which are

contained in the record on appeal, and after reviewing the trial testimony, we reject defendant’s

contention that the identification procedures were unduly suggestive, and we conclude that



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defense counsel was not ineffective for failing to file a motion to suppress. The photo array

contains five color images of young African American men. Defendant has short braids, as does

another individual. Among the other young men there is one who has shoulder-length braids,

another who has ear-length braids, and one who has unbraided short hair. While defendant’s

skin tone appears to be darker than the other four individuals, it is not extraordinarily so. See

People v. Faber, 2012 IL App (1st) 093273, ¶ 57 (lineup participants are not required to be

identical or near identical). “It is a truism that individual facial features and hair styles and

lengths differ, and this makes precise correspondence of all subjects in a photo array a practical

impossibility.” People v. Harrell, 104 Ill. App. 3d 138, 145 (1982). These differences in

appearance did not render the array improper, as arrays depicting more pronounced physical

differences between the defendant and the fillers have been found acceptable. See People v.

Kubat, 94 Ill. 2d 437, 472 (1983) (only the defendant wore glasses); People v. Smith, 160 Ill.

App. 3d 89, 92 (1987) (only the defendant had blonde hair and was depicted without a shirt);

Harrell, 104 Ill. App. 3d at 144-45 (defendant had longer hair than the fillers).

¶ 42   Further, although defendant’s image is on a red background, we do not find defendant’s

background was “grossly dissimilar to the others, which had gray backgrounds” as he claims.

First, it is disingenuous for defendant to describe the fillers’ backgrounds as all being gray. Our

review of the photo array reveals that two backgrounds were light blue (but not the same shade),

another background was light-medium blue, and the other background was green-gray. The fact

each individual portrayed in the photo array had a different background goes against defendant’s

argument that the lineup was suggestive. Second, contrary to defendant’s claims, this court has

determined that photo arrays were proper where the defendant’s photograph had a different

background (Harrell, 104 Ill. App. 3d at 144-45) or was “noticeably darker” than the filler



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photographs (People v. Summers, 49 Ill. App. 3d 70, 74-75 (1977)). In fact, photo arrays have

been found to be unsuggestive even when defendant’s image is the only one portrayed in color.

See People v. Levine, 99 Ill. App. 3d 141, 158-60 (1981) (ultimately concluding that under the

totality of the circumstances there was not a likelihood of irreparable misidentification); People

v. Hudson, 7 Ill. App. 3d 333, 335-36 (1972).

¶ 43   Defendant also claims the photo array was unduly suggestive because it contained only

four fillers. We note that while Leon identified defendant in a photo array that included five

individuals, he had been presented with a different photo array the day prior. Thus, while the

specific photo array where defendant was identified only had five people, Leon was presented

with images of more than five individuals over both photo arrays.

¶ 44   As to the physical lineup, defendant similarly claims it was unduly suggestive because he

was the only one of the five men depicted who had short, braided hair and a dark complexion.

The photograph of the police lineup demonstrates that it included four other African American

men of the same approximate age, all with varying skin tones. One man had his hair styled in

shoulder-length braids, two had short, cropped hair, and one had a shaved head. While the men

had differing skin tones or hair styles, these factors are relevant only within the context of the

totality of circumstances. The participants in the lineup shared many similar features. The

participants in a lineup, however, are not required to be physically identical. Faber, 2012 IL

App (1st) 093273, ¶ 57. For example, we have routinely recognized that a lineup is not

impermissibly suggestive where “the defendant was the only person in the lineup with braided

hair.” People v. Love, 377 Ill. App. 3d 306, 311 (2007); see also People v. Kelley, 304 Ill. App.

3d 628, 638 (1999) (“[D]efendant’s hairstyles in the lineups (both the french braids and the Afro)

were not so distinctive that they rendered the lineups unduly suggestive.”); People v. Trass, 136



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Ill. App. 3d 455, 463 (1985) (“The fact that [defendant] was the only man in the lineup with

braided hair does not establish that the lineup was impermissibly suggestive ***.”).

¶ 45   Moreover, here the facts indicate there was not a substantial likelihood of irreparable

misidentification. See Love, 377 Ill. App. 3d at 311. There is no evidence defendant was forced

to wear braids at the lineup. Additionally, Thomas was able to observe the shooter’s face at the

time of the offense; his identification of defendant was not based solely on defendant’s hair. In

fact, both Leon and Thomas testified that defendant had a hood drawn around his head, but his

face remained exposed. Thus, defendant’s hair style would not have been a factor in Thomas’

identification of him.

¶ 46   Ultimately, based on our review of the photo array and lineup, as well as relevant case

law, we necessarily reject defendant’s contention that the photo array and lineup presented to

Leon and Thomas were impermissibly suggestive. Accordingly, because a motion to suppress

the identification of defendant from the array and lineup would not have been successful,

defendant’s ineffective assistance of counsel claim is without merit. See People v. Gabriel, 398

Ill. App. 3d 332, 349 (2010).

¶ 47   Moreover, even if we assume arguendo that defense counsel’s performance was deficient

the suppression of the photo array and lineup would not have changed the outcome of

defendant’s trial where the victims had an independent basis for identifying defendant, apart

from the photo array and physical lineup. People v. Brooks, 187 Ill. 2d 91, 126 (1999).

Identification evidence which is vague or doubtful is insufficient to support a conviction. People

v. Slim, 127 Ill. 2d 302, 307 (1989). A single witness’ identification of the accused, however, is

sufficient to sustain a conviction if the witness viewed the accused under circumstances

permitting a positive identification. Id. In assessing identification testimony, we consider the



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following five factors set forth in Neil v. Biggers, 409 U.S. 188 (1972): (1) the witness’

opportunity to view the defendant during the offense; (2) the witness’ degree of attention at the

time of the offense; (3) the accuracy of the witness’ prior description of the defendant; (4) the

witness’ level of certainty at the subsequent identification; and (5) the length of time between the

crime and the identification. Slim, 127 Ill. 2d at 307-08. None of these factors, standing alone,

conclusively establishes the reliability of identification testimony; rather, the trier of fact is to

take all of the factors into consideration. Biggers, 409 U.S. at 199-200.

¶ 48    Defendant first challenges the victims’ testimony identifying him as the shooter.

Defendant calls into question their ability to view the shooter and maintains that Thomas’ view

of the shooter was obstructed because the shooter’s face would not have been clearly visible

when Thomas hid behind the brick barrier and jumped off the porch. In regards to Leon,

defendant asserts that Leon was focusing on the shooter’s weapon and not on his face during the

shooting.

¶ 49    While Thomas testified he hid behind the porch wall and then ran away, the evidence

established that he did so after viewing the shooter’s face. Further the evidence establishes that

Leon had ample opportunity to view the shooter. Although the shooter had a hood drawn over

his head, the testimony established that the shooter’s face was not covered. Leon was seated in

his wheelchair at the base of the porch stairs when the shooter came from the gangway; his view

was unobstructed and he did not move when the shooter commenced firing his weapon. Most

importantly, the shooter was not a random stranger, it was an individual both Leon and Thomas

recognized from the neighborhood and knew him by his nickname.

¶ 50    In regards to the second Biggers factor, the witness’ degree of attention at the time of the

offense, the testimony was clear that Leon was focused on the shooter during the incident. While



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we acknowledge that Thomas’ degree of attention was lessened by the fact he hid behind the

porch wall and then ran away, it does not negate his ability to have initially recognized defendant

as the shooter.

¶ 51    As to the third Biggers factor, the accuracy of the witness’ prior description of the

defendant, the testimony established that Leon and Thomas did not initially provide detailed

descriptions of the shooter, but instead identified him by his nickname. Later, after presented

with the first photo array, Leon informed the detectives that “Monkey Man” had short braids, a

description that proved to be accurate.

¶ 52    The fourth Biggers factor goes to the witness’ level of certainty at the subsequent

identification. Leon and Thomas both identified defendant definitively in the photo array as well

as in the lineup.

¶ 53    Lastly, while Leon did not initially identify defendant as the shooter to the responding

police officers or the paramedics, he did so inform the detectives who visited him at the

emergency room while he was being treated for the gunshot wound. Thomas also did not

immediately identify defendant as the shooter, but did so when the detectives interviewed him

two days after the offense occurred.

¶ 54    After weighing each factor, we conclude Leon and Thomas viewed the shooter under

circumstances permitting a positive identification. We observe that “[n]ormally, the [trier of

fact] decides the weight that an identification deserves; and the less reliable the [trier of fact]

finds the identification to be, the less weight the [trier of fact] will give it.” People v. Rodriguez,

387 Ill. App. 3d 812, 829 (2008) (citing People v. Ramos, 339 Ill. App. 3d 891, 897 (2003)).

Here, the trial court was the trier of fact and had the opportunity to determine the credibility of

the witnesses and the weight to be given to their testimony. People v. Jackson, 232 Ill. 2d 246,



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281 (2009). The trial court weighed the evidence and found that Leon and Thomas’

identifications were reliable. We cannot say, when viewed in the light most favorable to the

State, that the identification of defendant as the shooter was insufficient and we will not

substitute our judgment for that of the trial court in regard to the reliability or weight of the

identification. As the victims had an independent basis for making their identifications,

defendant was not prejudiced by trial counsel's failure to move to suppress the photo array

identification, thus, defendant’s claim for ineffective assistance of counsel fails for this reason as

well.

¶ 55                                    Sufficiency of the Evidence

¶ 56      Defendant next contends that the State failed to prove him guilty beyond a reasonable

doubt where the only evidence linking him to the crime was the identification testimony of Leon

and Thomas who were not credible. Defendant further asserts that the State failed to meet its

burden of proof where the DNA evidence did not demonstrate defendant participated in the

offense, the State failed to prove motive, and the witnesses viewed a suggestive photo array and

lineup.

¶ 57      The State responds that it was within the province of the trial court to determine the

credibility of the witnesses and that this court may not independently assess Leon’s and Thomas’

credibility. In addition, the State maintains that the DNA evidence does not exonerate defendant

where the trial stipulation provided that it is possible to wear a garment or handle a weapon and

not leave enough DNA to be detected. Lastly, the State argues that the photo array and lineup

were not improper because Leon and Thomas independently identified defendant as the shooter

prior to identifying defendant in the photo array or lineup.

¶ 58      When reviewing the sufficiency of the evidence, the relevant inquiry is whether, after



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viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. People v.

Washington, 2012 IL 107993, ¶ 33. On review, all reasonable inferences from the evidence are

drawn in favor of the State. People v. Martin, 2011 IL 109102, ¶ 15. The reviewing court will

not retry the defendant or substitute its judgment for that of the trier of fact on questions

involving the weight of the evidence, conflicts in the testimony, or the credibility of witnesses.

Jackson, 232 Ill. 2d at 280. A defendant’s conviction will be reversed only if the evidence is so

improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt.

Washington, 2012 IL 107993, ¶ 33.

¶ 59   Defendant here was convicted of first degree murder and attempted murder. A person

commits first degree murder if, in performing the acts that cause a death, he or she either intends

to kill or do great bodily harm to the victim or another individual, knows that the acts will cause

the victim’s or another’s death, or knows the acts create a strong probability of death or great

bodily harm to the victim or another. 720 ILCS 5/9-1(a)(1), (a)(2) (West 2012). A person

commits attempted murder when, with intent to commit murder, he or she takes any substantial

step towards committing murder. 720 ILCS 5/8-4(a), 9-1 (West 2012). Defendant, however,

does not contest the elements of the offense but instead challenges the credibility of the victims

whose testimony supported his conviction, the trial court’s weighing of the DNA evidence, the

State’s failure to prove motive, and the reliability of the photo array and lineup identifications.

¶ 60   We initially observe that we previously determined that the photo array and lineup

identification procedures were not suggestive. We also examined Leon and Thomas’

identification testimony under the Biggers factors and concluded that the trial court’s reliance on

those identifications was not problematic. Consequently, these arguments as they relate to the



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sufficiency of the evidence are also unpersuasive.

¶ 61   Defendant, however, generally challenges the credibility of the victims’ testimony

identifying him as the shooter. Defendant argues that the evidence established Leon and Thomas

were both likely high on marijuana at the time of the shooting. In addition, defendant argues that

Leon and Thomas provided inconsistent testimony regarding the identity of the shooter; Leon

testified on cross-examination that he had only known defendant “for a minute” and Thomas

initially referred to defendant as “Money Man” not “Monkey Man.” Defendant also argues that

Leon’s testimony was incredible where (1) on cross-examination he testified he was guessing

that (a) he observed defendant in a passing vehicle prior to the shooting, and (b) defendant “hung

out” with an opposing gang, (2) he flip-flopped regarding the color of the shooter’s sweatshirt,

(3) denied there was a gang faction feud despite Vaughan’s testimony otherwise, and

(4) acknowledged he was an active gang member and drug dealer at the time of the shooting.

¶ 62   The arguments set forth by defendant are a general attack on the credibility of the

witnesses. Minor inconsistencies in the testimony between witnesses or within one witness’

testimony may affect the weight of the evidence but does not automatically create a reasonable

doubt of guilt. People v. Adams, 109 Ill. 2d 102, 115 (1985). The trier of fact must judge how

flaws in parts of a witness’ testimony, including inconsistencies with prior statements, affect the

credibility of the whole. People v. Cunningham, 212 Ill. 2d 274, 283 (2004). The trier of fact

may accept or reject all or part of a witness’ testimony. People v. Logan, 352 Ill. App. 3d 73, 81

(2004). The testimony of a single witness, if positive and credible, is sufficient to sustain a

conviction although it is contradicted by the defendant. People v. Siguenza-Brito, 235 Ill. 2d

213, 228 (2009).

¶ 63   Defendant’s argument regarding the sufficiency of the evidence fails because the



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weaknesses in the evidence that defendant cites on appeal were all presented to, considered, and

rejected, by the trial judge. By its verdict, the trial court determined that Leon and Thomas were

telling the truth when they identified defendant as the shooter. The trial court, as trier of fact,

heard the testimony of the witnesses and was best equipped to judge their credibility. People v.

Wheeler, 226 Ill. 2d 92, 114-15 (2007) (credibility determinations carry great weight and “due

consideration must be given to the fact that it was the trial court and jury that saw and heard the

witnesses”). We will not disturb this credibility finding on review. See People v. Harris, 297 Ill.

App. 3d 1073, 1083 (1998) (we defer to the trial court in credibility assessments because a court

of review is not in a position to observe the witness as he or she testifies). Accordingly, in view

of the record and the credibility determinations, we cannot say the evidence was so improbable

or unsatisfactory as to render the verdict unreasonable.

¶ 64   Next, defendant maintains that the lack of DNA evidence creates reasonable doubt that

defendant was the shooter. While the DNA that was discovered on the baseball cap, hooded

sweatshirt, and handgun excluded defendant as a source, the stipulated testimony established that

it was possible for someone to wear or handle these items and not leave behind any DNA. Thus,

although the DNA did not definitively identify defendant as the perpetrator of this offense, it did

not exonerate him from it. See People v. Allen, 377 Ill. App. 3d 938, 944 (2007) (the absence of

DNA evidence on a handgun would not exonerate the defendant).

¶ 65   Lastly, defendant asserts that the State failed to prove motive, however, the State was not

required to prove motive in the first place. See e.g., People v. Ward, 154 Ill. 2d 272, 320 (1992)

(concluding that the prosecutor’s explanation to the jury that he did not have to prove motive is a

correct statement of the law, and was therefore entirely proper).

¶ 66   In sum, the evidence, viewed in the light most favorable to the State, demonstrates that a



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rational trier of fact could have found the essential elements of murder and attempted murder

beyond a reasonable doubt. See Washington, 2012 IL App (1st) 107993, ¶ 33.

¶ 67                                   Due Process Violated

¶ 68   Defendant next asserts that the trial court shifted the burden of proof to him to prove his

innocence, thereby violating his due process rights. Defendant acknowledges that he failed to

properly raise this issue before the trial court, thus forfeiting his claim on appeal. Defendant,

however, requests that this court review his claim under the plain-error doctrine. Illinois

Supreme Court Rule 615(a) states that “[a]ny error, defect, irregularity, or variance which does

not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the trial court.” Ill. S.

Ct. R. 615(a) (eff. Jan. 1, 1967). The plain-error rule “allows a reviewing court to consider

unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is

so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d

551, 565 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). Defendant carries the

burden of persuasion under both prongs of the plain-error rule. People v. Lewis, 234 Ill. 2d 32,

43 (2009). However, “[t]he first step of plain-error review is to determine whether any error

occurred.” Id. Therefore, we will review the issue to determine if there was any error before

considering it under the plain-error doctrine.

¶ 69   It is well-established that a criminal defendant has a fundamental due process right to a

fair trial that is protected by both federal and state constitutions. U.S. Const., amend. XIV; Ill.



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Const. 1970, art. I, § 2. In a bench trial, the circuit court judge is the trier of fact, and as such, is

required to consider all of the evidence before rendering its decision. People v. Williams, 2013

IL App (1st) 111116, ¶ 75. When a bench trial is conducted, the trial court is presumed to have

considered only competent evidence and that presumption will only be rebutted by affirmative

evidence in the record. People v. Simon, 2011 IL App (1st) 091197, ¶ 91. Accordingly, where

there is affirmative evidence in the record that the circuit court failed to correctly recall and

consider evidence critical to fully understand and evaluate a criminal defendant’s defense

strategy at trial, the defendant is deprived of his right to a fair trial. People v. Mitchell, 152 Ill.

2d 274, 323 (1992); Williams, 2013 IL App (1st) 11116, ¶ 75. Whether a criminal defendant’s

due process rights have been violated presents an issue of law, and is thus subject to de novo

review. People v. Stapinski, 2015 IL 118278, ¶ 35.

¶ 70    In a criminal proceeding, the State has the burden of proving each element of the offense

beyond a reasonable doubt and this burden never shifts to the defendant. People v. Cameron,

2012 IL App (3d) 110020, ¶ 27. The defendant is presumed innocent of the charges against him

and does not have to prove his innocence, testify, or present any evidence. Id. The trial court’s

efforts to test, support, or sustain the defense’s theories, however, cannot be viewed as diluting

the State’s burden of proof or shifting that burden to the defendant. People v. Howery, 178 Ill.

2d 1, 35 (1997); Cameron, 2012 IL App (3d) 110020, ¶ 28. The court may comment on the

implausibility of the defense’s theories, as long as it is clear from the record that the court

applied the proper burden of proof in finding the defendant guilty. Howery, 178 Ill. 2d at 34-35.

The trial court is presumed to know the law, including the allocation of the burden of proof, and

to apply it properly, absent a strong affirmative showing to the contrary in the record. Id. at 32­

33.



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¶ 71   In support of his contention, defendant relies on the following remarks made by the trial

court in delivering the guilty verdict. The allegedly erroneous remarks are italicized for

emphasis, but are presented in context:

               “Thank you. I observed the witnesses while testifying. I watched their demeanor

       and listened to the arguments and reviewed the stipulations that have been agreed.

               Concerning the DNA, the DNA certainly could include somebody in these cases.

       But as far as what I am looking, it says – this is on stipulation Number 76, Ms. Belna

       would testify that Matthew Smith cannot be excluded as a donor of the mixture of the

       DNA profiles on the cap.

               This means he is included as a possible donor to the mixture identified on the cap.

       The chances a random person would be included to this mixture are 1 in 6 Blacks. That

       means out of – if you took the number 600, 100 Blacks would be included in that

       number.

               If you took the Whites, if you looked at 230, then you would have 23 out of that

       approximately. So I mean, these DNA figures are just really meaningless as to proving

       Mr. Smith was the culprit in this case.

               As to the DNA, the DNA concerning Mr. Joiner, he certainly was excluded but

       exclude [sic] for having biological material on the hat, the gun and the gray hooded

       sweatshirt but that doesn’t mean that he wasn’t there.

               There are [sic] part of the stipulation is that people can handle a weapon without

       leaving a fingerprint, etc. So those possibilities exist. It does come down to credibility of

       the witnesses of Thomas and Leon Cunningham.

               First off, there has been no interest or bias shown as far as why Mr. Leon



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       Cunningham would say that Mr. Joiner was the one that shot him. He was on the porch.

       Remember she [sic] says, the seventies was [sic] not having problems with D Block.

       That was his portion of the gang. But the fact that very shortly after the shooting, Leon

       Cunningham comes up with the name Monkey Man.

               One of the conclusions and there are probably many is that if he wanted to put this

       on Mr. Joiner with no other reason and Mr. Joiner wasn’t there, how would he know that

       Mr. Joiner didn’t have an alibi or Mr. Joiner wasn’t in town or things to that effect.

               The next thing was the cross examination [sic] and it was very strenuous of

       Thomas Cunningham. Leon Cunningham said that he did talk to his brother three days

       after the shooting. Thomas Cunningham said they talked sooner and I saw my brother

       before the lineup. We didn’t talk about any shooting at the hospital.

               So there’s no – has been argued and proffered by the defense, there’s no

       independent showing that there was a connection that Leon had directly influenced

       Thomas in his identification process.

               The identification processes were there and there are some inconsistencies but

       they are not of a major group to render the testimony of Leon Cunningham and Thomas

       Cunningham as unbelievable.” (Emphasis added.)

¶ 72   In the present case, we find the record lacks affirmative proof that the trial court

erroneously shifted the burden of proof to defendant. In reaching its decision, the trial court

specifically addressed defendant’s evidence and theories, that being the credibility of Leon and

Thomas, the DNA evidence, and the theory that Leon had instructed Thomas to identify

defendant as the perpetrator. The record demonstrates that the trial court thoroughly considered

and tested defendant’s theories, which included the argument that the lack of DNA evidence



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exonerated him. See Cameron, 2012 IL App (3d) 110020, ¶ 28 (“The trial court is free to

comment on the implausibility of the defense's theories, as long as it is clear from the record that

the trial court applied the proper burden of proof in finding the defendant guilty.”). The trial

court further addressed defendant’s attack on the credibility of Leon and Thomas and their

identification of him as the shooter, finding (1) there was no evidence presented demonstrating

Leon influenced Thomas’ identification of him, and (2) acknowledging there were some

inconsistencies between their testimonies, it was not enough to render their testimony completely

unbelievable. See Howery, 178 Ill. 2d at 34-35. Here, defendant appeals from a bench trial,

where the trial court served as the trier of fact. The trial court may draw or reject inferences

based on the evidence and is presumed to know the law. Id. at 32-33. The record is clear that

the trial court knew and properly applied the burden of proof and its comments do not support a

claim that it erroneously shifted the burden to defendant. Having determined that no error

occurred, we need not consider further the parties’ arguments on this issue about forfeiture and

plain error.

¶ 73                           The Constitutionality of Defendant’s Sentence

¶ 74    Defendant argues his sentence of 71 years’ imprisonment violates the United States

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

Constitution (Ill. Const. 1970, art. I, § 11) as applied to him.

¶ 75    The applicable sentencing statutes mandated that the trial court add firearm

enhancements to his sentences for murder and attempted murder; that his murder and attempted

murder sentences be served consecutively; and that he must serve the entire murder sentence and

85 percent of the attempted murder sentence. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)

(25 years to be added to murder sentence if firearm used proximately causes death or great



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bodily harm); 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2012) (20 years to be added to attempted

murder sentence if firearm used); 730 ILCS 5/5-8-4(d)(1) (West 2012) (murder and attempted

murder sentences to be served consecutively); 730 ILCS 5/3-6-3(a)(2)(i)-(ii) (West 2012) (“truth

in sentencing” mandates defendant must serve 100 percent of murder sentence and 85 percent of

attempted murder sentence).

¶ 76   Although the trial court sentenced defendant to the minimum sentence, his aggregate

sentence totals 71 years (of which defendant must serve at least 66 years). Defendant, relying on

Miller and its progeny, asserts that this lengthy term is actually a mandatory de facto life

sentence, which violates the federal constitution and the proportionate penalties clause of the

Illinois Constitution.

¶ 77   In response, the State asserts that a sentence guaranteeing a geriatric release is not

equivalent to an actual or de facto life sentence. In this instance, defendant is eligible for release

at age 83, thus, the State argues, Miller does not apply because he is not serving a sentence

without the possibility of parole.

¶ 78   The eighth amendment of the United States Constitution prohibits “cruel and unusual

punishments.” U.S. Const., amend. VIII. This provision prohibits not only “inherently barbaric

punishments” but those “disproportionate to the crime.” Graham v. Florida, 560 U.S. 48, 59

(2010). The proportionate penalties clause of the Illinois Constitution 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.

¶ 79   A strong presumption exists that statutes are constitutional and courts will uphold a

statute whenever reasonably possible, resolving all doubts in favor of the statute’s validity.

People v. Patterson, 2014 IL 115102, ¶ 90. In addition, the challenging party has the burden of



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rebutting this presumption. People v. Willis, 2013 IL App (1st) 110233, ¶ 43. We review a

statute’s constitutionality de novo. Patterson, 2014 IL 115102, ¶ 90.

¶ 80   Defendant argues that his sentence is unconstitutional under Miller. In Miller, the

Supreme Court held that life without parole is unconstitutional for juvenile offenders if the

sentence is mandatory. Miller, 567 U.S. at 470. The Court reasoned that minors are

constitutionally different from adults for sentencing purposes, being more impulsive and

vulnerable to negative influences and peer pressures than adults, and further lack fully-formed

characters so that their actions do not necessarily indicate irreversible depravity. Id. at 471-77.

The Court, however, continued to allow such sentences when they were based on judicial

discretion. Id. at 479. The Court made Miller’s holding retroactive in Montgomery v. Louisiana,

577 U.S. ___, ___, 136 S. Ct. 718, 736 (2016), and also instructed that states could remedy a

Miller violation by allowing juvenile offenders with mandatory life sentences to become eligible

for parole. Id. at ___, 136 S. Ct. at 736. “So far, the Supreme Court has reserved these rulings

for the most severe punishments: death or life imprisonment.” People v. Evans, 2017 IL App

(1st) 143562, ¶ 11.

¶ 81   Although the juvenile defendant in Miller was sentenced to a mandatory term of life

imprisonment, our supreme court in People v. Reyes, 2016 IL 119271, ¶ 9, applied the holding in

Miller to a “mandatory term-of-years sentence that cannot be served in one lifetime.” The

juvenile defendant in Reyes, who was 16 years old when he committed the offense, received a

mandatory minimum sentence of 20 years’ imprisonment for first degree murder, plus a

mandatory 25-year firearm enhancement, and 26 years for each of his two attempted murder

convictions consisting of the minimum 6-year sentence for attempted murder plus a 20-year

mandatory firearm enhancement. Id. ¶ 2. Pursuant to statute, the defendant was required to



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serve his sentences consecutively; therefore, he “was sentenced to a mandatory minimum

aggregate sentence of 97 years’ imprisonment” and “required to serve a minimum of 89 years”

before being eligible for release. Id.

¶ 82   The State conceded, and the court agreed, “that defendant will most certainly not live

long enough to ever become eligible for release.” Id. ¶ 10. Our supreme court reasoned that

such a sentence “has the same practical effect on a juvenile defendant’s life as would an actual

mandatory sentence of life without parole—in either situation, the juvenile will die in prison.”

Id. ¶ 9. The court held that to sentence a juvenile defendant to a mandatory term “that is the

functional equivalent of life without the possibility of parole,” without consideration of the

mitigating factors of youth set forth in Miller, “constitutes cruel and unusual punishment in

violation of the eighth amendment.” Id.

¶ 83   In this case, as in Reyes, defendant was sentenced to the statutory minimum. See id. ¶ 2.

Likewise, defendant here committed offenses in a single course of conduct that subjected him to

a legislatively mandated sentence of 71 years, with the earliest opportunity for release after 66

years. His sentence included two mandatory firearm enhancements. Because defendant was 16

years old at the time he committed the offenses, the sentencing scheme mandates that he will

remain in prison until at least the age of 83. In our view, this constitutes a mandatory de facto

life sentence in violation of the eighth amendment. See id. ¶ 9.

¶ 84   In reaching this conclusion, we find People v. Buffer, 2017 Il App (1st) 142931, to be

instructive. In that case, the 16-year-old defendant was found guilty of murder for the shooting

death of the victim, including that he personally discharged the firearm that caused the victim’s

death. Buffer, 2017 IL App (1st) 142931, ¶ 3. The defendant was sentenced to 25 years for

murder plus a mandatory 25-year firearm enhancement for a total of 50 years’ imprisonment



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with 3 years of mandatory supervised release. Id. ¶¶ 26, 42. In sentencing the defendant, the

trial court also indicated that it considered not only the gravity of the offense, but also the

defendant’s potential substance abuse issues, treatment, potential for rehabilitation, and age. Id.

While the defendant’s case was pending, the United States Supreme Court decided Miller, but

nonetheless his conviction was affirmed. Id. ¶¶ 29, 31. Thereafter, the defendant filed a

postconviction petition arguing his 50-year sentence was a de facto life sentence that violated the

eighth amendment of the United States Constitution and the proportionate penalties clause of the

Illinois Constitution. Id. ¶ 35. His petition, however, was summarily dismissed by the circuit

court as being frivolous and patently without merit. Id. ¶ 36.

¶ 85   Similar to defendant in the case at bar, on appeal Buffer maintained his 50-year sentence

was a de facto life sentence that violated his constitutional rights both under the eighth

amendment of the United States Constitution and the proportionate penalties clause of the

Illinois Constitution. Id. ¶ 41. In addition, the defendant asserted that because of the interaction

of the sentencing statutes, including the mandatory firearm enhancement statute and the truth in

sentencing statute, the trial court was prevented from exercising any discretion or taking into

consideration his youth and rehabilitative potential. Id. ¶ 42.

¶ 86   In considering whether the defendant’s sentence constituted a de facto life sentence, the

Buffer court stated, “While our supreme court in Reyes extended Miller to de facto life sentences

because they ‘cannot be served in one lifetime’ it left open the question of what age constitutes a

‘lifetime’ and who gets to make that determination.” Id. ¶ 57. The Buffer court went on to

acknowledge the varying opinions of our appellate court as to when it is appropriate for a court

of review to reflect on questions of biology and statistics, specifically those regarding an

inmate’s projected life span. Id. (citing People v. Harris, 2016 IL App (1st) 141744, ¶ 52;



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People v. Jackson, 2016 IL App (1st) 143025, ¶ 57 (recognizing that appellate courts “need a

consistent and uniform policy on what constitutes a de facto life sentence”)). But ultimately, the

court found the defendant’s 50-year sentence was a de facto life sentence, as he would not have a

“meaningful opportunity for release.” Id. ¶ 62.

¶ 87   In so concluding, the Buffer court, like the court in People v. Sanders, 2016 IL App (1st)

121732-B, ¶ 26, took judicial notice of the United States Sentencing Commission Preliminary

Quarterly Data Report, which indicated that “a person held in a general prison population has a

life expectancy of about 64 years and that this estimate probably overstates the average life

expectancy for minors committed to prisons for lengthy terms.” (Internal quotation marks

omitted.) Buffer, 2017 IL App (1st) 142931, ¶ 59. The Buffer court observed that this

proposition was also adopted by the appellate court in Harris. See Harris, 2016 IL App (1st)

141744, ¶¶ 53-54 (agreeing with Sanders that the lower life expectancy of minors committed to

prison for lengthy terms was “not surprising given the harshness of a lifetime spent in a state

penitentiary.”). The Buffer court further noted that “while our supreme court has not yet

attempted to delineate what constitutes a lifetime, in finding de facto life sentences

unconstitutional, it relied heavily on the reasoning of the Wyoming Supreme Court in Bear

Cloud v. State, 2014 WY 113, ¶ 33,” which “explicitly found that an aggregate 45-year sentence

imposed on a 16-year-old triggered the eighth amendment’s prohibition against mandatory life

sentences.” Buffer, 2017 IL App (1st) 142931, ¶ 61 (citing Bear Cloud, 2014 WY 113, ¶¶ 31­

37).

¶ 88   While the Buffer court ultimately determined the 16-year-old defendant’s 50-year

sentence was a mandatory de facto life sentence, the case before us is much stronger. Here,

defendant was 16 years old when he committed the offenses and was sentenced to 71 years’



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imprisonment, with the possibility of being released in 66 years, making him 83 years of age on

his projected parole date. An examination of similar cases involving mandatory de facto life

sentences reveals that defendant’s 71-year sentence compares favorably with other de facto life

sentences. See People v. Nieto, 2016 IL App (1st) 121604, ¶ 42 (78-year sentence); Harris, 2016

IL App (1st) 141744, ¶ 54 (76-year sentence); People v. Ortiz, 2016 IL App (1st) 133294, ¶ 23

(60-year sentence, allowing release at age 75); Buffer, 2017 IL App (1st) 142931, ¶ 62 (50-year

sentence, allowing release at age 69). Thus, in accordance with our case law, we conclude

defendant’s sentence, where he would be released at the earliest at age 83, is a mandatory de

facto life sentence in violation of the eighth amendment.

¶ 89   Moreover, the record here demonstrates that the only evidence regarding defendant’s

youth, immaturity, or potential for rehabilitation trial court considered was contained in the

presentencing investigation report. The record further discloses that the trial court rendered no

express findings about defendant’s specific characteristics of youth. As explained by our

supreme court:

       “A mandatory term-of-years sentence that cannot be served in one lifetime has the same

       practical effect on a juvenile defendant’s life as would an actual mandatory sentence of

       life without parole—in either situation the juvenile will die in prison. Miller makes clear

       that a juvenile may not be sentenced to a mandatory, unsurvivable prison term without

       first considering in mitigation his youth, immaturity, and potential for rehabilitation.”

       (Emphasis added.) Reyes, 2016 IL 119271, ¶ 9.

¶ 90   In this case, the State’s attorney did not request the maximum sentence (natural life in

prison), but instead asked that defendant receive “a substantial sentence.” In mitigation, defense

counsel noted that defendant had no criminal history, strenuously denied defendant was a gang



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member, and emphasized the consistent support defendant received from his family throughout

his trial. Defense counsel declined to raise any other arguments stating, “I can make arguments

as indicated in the statute, the sentencing statute, as to his possibility of rehabilitation and all of

those things and just frankly, Judge, seems useless when a sentencing minimum is so high.”

Thereafter, the trial court sentenced defendant to the minimum possible sentences. It is clear

from the record that the mandatory firearm enhancements operated to tie the trial court’s hands

when sentencing defendant. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012); 720 ILCS 5/8­

4(c)(1)(D) (West 2012). While we acknowledge that defendant was sentenced prior to the Reyes

decision, it is apparent that the trial court was limited by the sentencing scheme and thus did not

expressly consider the factors that the Miller court found to be imperative when sentencing a

juvenile to a mandatory, unsurvivable prison term. See Miller, 576 U.S. at 480; Reyes, 2016 IL

119271, ¶ 9; Ortiz, 2016 IL App (1st) 133294, ¶¶ 23, 25 (the trial court must take into

consideration the corresponding characteristics of youth as outlined in Miller and Montgomery

when sentencing a defendant). Under these circumstances, where the Miller factors were not

utilized in imposing a discretionary sentence of natural life without the possibility of parole, a

juvenile defendant is entitled to relief. Nieto, 2016 IL App (1st) 121604, ¶ 49. Accordingly,

defendant’s sentence violated the eighth amendment of the United States Constitution. As we

have concluded defendant’s sentence violated the eighth amendment we need not address his

argument that it violated the proportionate penalties clause of the Illinois Constitution. See

Buffer, 2017 IL App (1st) 142931, ¶ 64.

¶ 91                            New Sentencing Provisions for Juveniles

¶ 92    Lastly, defendant argues that the new sentencing provision, which directs that the court

“may, in its discretion, decline to impose any otherwise applicable sentencing enhancement



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based upon possession of a firearm, possession with personal discharge, or possession with

personal discharge that proximately causes great bodily harm, permanent disability, permanent

disfigurement, or death to another person,” applies retroactively and thus the matter must be

remanded for a new sentencing hearing. 730 ILCS 5/5-4.5-105(b) (West 2016). After

defendant’s brief was filed, our supreme court addressed the exact question at issue here in

People v. Hunter, 2017 IL 121306, and definitively resolved the issue unfavorably to defendant’s

position. Defendant acknowledges this fact in his reply brief, conceding the argument.

¶ 93   Furthermore, as discussed above, we are remanding this matter for resentencing.

Accordingly, where “a defendant’s sentence is vacated on appeal and the matter remanded for

resentencing, under section 4 of the Statute on Statutes, the defendant may elect to be sentenced

under the law in effect at the time of the new sentencing hearing.” Id. ¶ 54.

¶ 94                                     CONCLUSION

¶ 95   For the reasons stated above, defendant’s conviction is affirmed. Defendant’s sentence,

however, is vacated and the matter is remanded to the circuit court for resentencing.

¶ 96   Affirmed in part; vacated in part; remanded.




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