                                          2019 IL App (3d) 170798

                                Opinion filed January 4, 2019
     _____________________________________________________________________________

                                                 IN THE


                                      APPELLATE COURT OF ILLINOIS


                                            THIRD DISTRICT


                                                   2019 


     THE PEOPLE OF THE STATE OF                       )      Appeal from the Circuit Court
     ILLINOIS,                                        )      of the 14th Judicial Circuit,
                                                      )      Rock Island County, Illinois,
               Plaintiff-Appellee,                    )
                                                      )      Appeal No. 3-17-0798
               v.                                     )      Circuit No. 94-CF-782
                                                      )
     JAMIE L. LOPEZ,                                  )      Honorable
                                                      )      Richard A. Zimmer,
               Defendant-Appellant.                   )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE CARTER delivered the judgment of the court, with opinion.
           Justices Holdridge and Wright concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1             Defendant, Jamie L. Lopez, appeals the third-stage denial of his successive

     postconviction petition, arguing that the court erred in denying his postconviction petition where

     the sentencing court failed to consider defendant’s youth when determining his sentence. We

     affirm.

¶2                                          I. BACKGROUND

¶3             In 1995, defendant was convicted of first degree murder (720 ILCS 5/9-1(a)(2) (West

     1994)) and aggravated battery (id. § 12-4(b)(1)). The evidence at trial established that Chad

     Van Klavern and Craig Jordan were attacked with a club. Our brief review of the facts is based
     on our order in People v. Lopez, No. 3-95-0421 (1996) (unpublished order under Illinois

     Supreme Court Rule 23). Van Klavern died due to multiple craniocerebral injuries; a police

     officer testified that he was able to observe Van Klavern’s brain through a golf ball sized hole in

     his skull. Jordan survived but suffered a head wound requiring 11 staples. The Moline Police

     Department questioned Augustin Torres about the incident based on an anonymous tip. During

     questioning, Torres implicated himself, defendant, and Anthony Olvera. The police conducted an

     investigation and recovered the club and clothing allegedly worn by defendant during the attack.

     The blood on the clothing matched Van Klavern’s blood. Olvera and Torres testified that it was

     defendant’s idea to attack Van Klavern and Jordan. Torres testified that defendant alone attacked

     Van Klavern with the club. Defendant told them to deny that he was with them at the time of the

     incident if they were questioned by police.

¶4          A sentencing hearing was held on May 9, 1995. In mitigation, a pastor testified that

     defendant did some volunteer work. As a result, the pastor developed a positive opinion of

     defendant. Defendant’s mother testified that she and defendant’s father got divorced and

     remarried twice, which had a negative impact on defendant. She stated that defendant’s sister

     was diagnosed with “manic depressive illness” and defendant was worried and concerned about

     her. Defendant’s father testified that he had a good relationship with defendant, revolving

     particularly around baseball. He said defendant had a strong faith.

¶5          The presentence investigation report (PSI) established that defendant was 16 years old at

     the time of the PSI. He completed the tenth grade but dropped out “because there were too many

     kids that he was afraid to be around.” He had earned three credits of the 21.5 required for

     graduation, had a grade point average of 0.167, and was ranked 567 out of 576. According to the

     school, defendant was dropped from school due to lack of attendance.


                                                     2

¶6          Defendant told the police that he was not with Torres and Olvera on the day of the

     incident but that the two of them “had been pressuring him to become involved in activities that

     he did not wish to become involved in.” Defendant also said that the blood found on his clothing

     could have come from a fight he had earlier, since he got into a lot of fights. He further stated

     that he had loaned clothes to Torres and Olvera in the past. Defendant’s prior juvenile record

     included disturbing the peace, two separate retail thefts, and a curfew violation. Defendant

     reported that he had good relationships with his parents but that his relationship with his mother

     changed when he became a teenager “and began being dragged down by his peers.” Defendant’s

     parents reported that two of his sisters were diagnosed as manic depressive. Defendant reported

     that he did not belong to a gang but was “involved with” Gangster Disciples, Vice Lords, and the

     Bishops. Defendant first drank alcohol at age 14 and last drank in September 1994. He said

     drinking caused problems with his girlfriend, friends, and at home. Defendant reported that he

     started smoking marijuana at age 15.

¶7          The PSI further included information regarding defendant’s time at the Mary Davis

     Detention Home. At first, defendant had a number of “lock up offenses” because he had a

     difficult time adjusting. However, it was reported that he had improved. A counselor reported

     that the home had a grading process based on room neatness, behavior, peer interaction, and

     authority problems. Defendant had been receiving C’s and D’s. He then improved and started

     earning B’s and then A’s. Defendant started volunteering for chore assignments and was a good

     worker, showed good sportsmanship, and wrote and performed a positive rap for teens in a talent

     show. Defendant stopped retaliating when taunted by racial slurs. The PSI further included

     multiple victim impact letters from friends and family of Van Klavern.




                                                     3

¶8             Defendant made a brief statement in allocution in which he stated that he was sad about

     the tragedy and sorry for the families of the victims and his own family. The State asked the

     court to sentence defendant to between 45 and 55 years, which was less than the maximum,

     based on defendant’s potential for rehabilitation.

¶9             The court stated that it had considered the PSI and the evidence presented. The court then

     stated:

                      “But factors in aggravation and mitigation—the first, the defendant’s criminal

                      conduct neither caused nor threatened serious physical harm to another, and

                      second, the defendant did not contemplate that his criminal conduct would cause

                      or threaten serious physical harm to another. I cannot consider them in lieu of the

                      fact it’s an element of the offense in this case, when death is an element of the

                      offense and serious bodily harm, Court cannot consider that at sentencing, a

                      sentence is not aggravated or mitigated in this case.

                              Number three, the defendant acted under a strong provocation. From what

                      evidence Court has heard throughout this entire trial, the facts, even at Torres’

                      trial, it’s clear this was an unprovoked assault by two young teenagers out beyond

                      hours that they should be out on the street, up in Chicago, travelling around

                      unsupervised, they should not be travelling in Chicago, should be home, but in

                      any event on the night in question when this—the night this murder occurred, an

                      aggravated assault occurred, these defendants acted under no provocation. In fact,

                      the statement of [defendant] himself as he told one of his friends the day

                      afterwards when he is getting rid of the club, the lower portion of the club, he said

                      they beat up two guys, jumped two guys because they had nothing else to do.


                                                        4

Nothing else to do—so on the night in question—Court finds absolutely no

provocation, no taunting by Van Klavern, no taunting by Jordan, they were

simply walking home.

       There were substantial grounds tending to excuse or justify the

defendant’s criminal conduct though failing to establish a defense. I don’t find

any in this case.

       The defendant’s criminal conduct was induced or facilitated by someone

other than the defendant. Yes and no. I think it’s clear if you listen to the

testimony of Olvera and Torres, corroborated by friends of the defendant he was

prime mover in this case to go outside and assault the two boys. Now that doesn’t

excuse Torres. He knew exactly what he was doing. He got out of that car with

the defendant, they took parts of that club, crawled by a cement wall waiting to

assault two young men in the street. I think it’s clear he and Torres were two

planners of the fight and prime mover was [defendant].

       Defendant has compensated or will compensate the victim of his criminal

conduct for the damage or injury that he sustained. Inapplicable in this case. No

monetary damage shown here, no monetary damage that would apply.

       The defendant has no history of prior delinquency or criminal activity or

has led a law-abiding life for a substantial period of time before the commission

of the present crime. No great criminal record. I want to note [he] had drug

problems, very serious in the [PSI], his mother was attempting to get him help for,

had a fighting problem, but his real record was couple thefts as you point out. I

am not basing—if anything is probably mitigating to the defendant.


                                 5

       The defendant’s criminal conduct was the result of circumstances unlikely

to recur. Court cannot come to that conclusion, [defendant], you have tried to alibi

for yourself from day one when the evidence is overwhelming against you. You

never thought your friends would turn on you but they did, they helped convict

you in this case, the people you ran with, not the people the victim ran with, day

after the crime depositing of evidence, lower half of the club with blood on it. It’s

clear the day after, after the day of the crime, you are taking people to the crime

scene, almost in a bragging way this is where we jumped two people, had a fight,

pointed it out to your friends, had this alibi in Court, you weren’t there, all the

way—

       The imprisonment of the defendant would entail excessive hardship to his

dependents. No evidence of that—he has no dependents at this point.

       The imprisonment of the defendant would endanger his or her medical

condition. No evidence of this and not mentally retarded as defined in the Code, I

don’t find factors in mitigation there.

       Factors in aggravation, actually the flip side. I think when you turn to this,

sentence necessary to deter others from committing the same crime.

       Court is considering [defendant’s] rehabilitation potential which you, you

are a young man, you have committed a horrible crime. The Court must balance

this, all parties argue before the Court, what is the appropriate sentence, the Court

finds clearly you have a rehabilitation potential, it appears to me you improved

your life in terms of academics. It appears you have had some athletic talent. On

the other hand Court must consider this crime, what you have done, the degree of


                                  6

participation, you were the prime mover, and a degree of participation between

you and Torres, you were on the crime scene beating not only Van Klavern but

Jordan, testimony clearly supported that, as [the State] pointed out, the only

reason this assault stopped is because those neighbors came out, you were there

beating, flailing away, the match up of the blood on the lower half of the club, on

the coat that you were wearing, clearly presents an implication that corroborates

the testimony of Torres and Olvera and Craig Jordan, that you were clearly

assaulting Van Klavern much more than Torres, that doesn’t excuse anything,

however. I do note difference in participation—the fatal assault of Van Klavern—

there’s also testimony you were beating on Jordan. He says two people assaulted

him at one point—it appears from the testimony—his testimony somewhat self­

serving—it’s clear he was assaulting Jordan at the time although he did go over,

assault with the upper portion of the club, also on Van Klavern, this case is about

protection of people walking the streets, and people should be free to walk the

street whether it be at night, daytime, they shouldn’t have to worry about assault

from young teenagers; young teenagers ought not to be contemplating with

nothing else to do to decide we are going to assault two people on the street in

Rock Island County or any County in the State of Illinois. You are dangerous to

the public even though you have rehabilitation potential. You are still very

dangerous, [defendant]. I don’t think you to this day realize what you have done

in this case. But Courts have a duty to protect the citizens and Courts have a duty

to punish severely defendants who without provocation assault people on the

street, irrespective of their age.”



                                      7

       The court sentenced defendant to 50 years’ imprisonment on the murder conviction to run

       concurrent with a sentence of 5 years’ imprisonment on the aggravated battery conviction. We

       affirmed defendant’s convictions and sentences on direct appeal. Lopez, No. 3-95-0421.

¶ 10          In 1997, defendant filed a petition for postconviction relief, presenting various ineffective

       assistance of counsel arguments. The circuit court denied the petition after an evidentiary

       hearing. This court affirmed the denial on appeal. People v. Lopez, No. 3-98-0395 (1999)

       (unpublished order under Illinois Supreme Court Rule 23).

¶ 11          In 2000, defendant filed a motion for leave to file a successive postconviction petition,

       stating that his initial petition was deficient and alleging unreasonableness of postconviction

       counsel. The circuit court denied the motion, and this court allowed counsel’s motion to

       withdraw and affirmed the denial of the motion pursuant to Pennsylvania v. Finley, 481 U.S. 551

       (1987). People v. Lopez, No. 3-02-0298 (2004) (unpublished order under Illinois Supreme Court

       Rule 23).

¶ 12          In 2015, defendant filed a second motion to file a successive postconviction petition,

       which is the subject of the instant appeal. In his motion, defendant alleged that the sentencing

       court failed to take sufficient consideration of his youth under Miller v. Alabama, 567 U.S. 460

       (2012). The circuit court denied the motion, stating that defendant failed to aver facts that would

       change the verdict or offer new evidence. Defendant filed a motion to reconsider and for leave to

       file an amended postconviction petition, both of which were granted.

¶ 13          On April 25, 2017, a third-stage evidentiary hearing was held on the amended petition.

       Dr. Antoinette Kavanaugh testified as a defense expert that she was a forensic clinical

       psychologist. She had worked with the Office of Juvenile Justice and Delinquency Prevention

       developing a curriculum to be used in juvenile courts and detention centers. She had recently


                                                       8

published an article entitled, “Prospects for Developing Expert Evidence in Juvenile

Montgomery Resentencing Cases,” which discussed “how psychologists can help, can present

information to the Court that’s individualized and addresses the Miller factors instead of what we

can and can’t do.” She stated that she had testified in court “[h]undreds of times.” She reviewed

the transcript from defendant’s sentencing hearing and the PSI. She discussed how juvenile

brains operate differently than adult brains. Because of their brains, juveniles act impulsively, are

easily influenced by their peers, have trouble planning ahead, are not as good at gauging risk,

seek sensation, and are less able to delay gratification. After reading the sentencing transcripts,

Kavanaugh made some observations, stating:

               “So one is the idea that sentence he was given that he, the judge, said in the

               sentencing hearing transcript, sentence that he was imposing a sentence necessary

               to deter others from committing the same crime.

                       Empirically, we have a strong body of research to show that a strict

               sentence does not deter other adolescents from committing the same act, so—so

               that’s wrong from a psychological perspective.

                       And he also said I don’t think you, to this day, realize what you have done

               in this case.

                       I think from a developmental perspective it’s not unusual for an adolescent

               not to appreciate the gravity of their act at the time and until they have matured,

               so that, I don’t think, reflects some of the things that the courts have said to be

               considered in sentencing.

                       I don’t—this is a typo because there should be a quote there, but courts

               have a duty to protect the citizens and courts have a duty to punish severely the


                                                 9

                        defendant, who, without provocation, assault people on the streets, irrespective of

                        their age and the idea certainly from Miller and Montgomery is that age and the

                        features of, that a characteristic of that age, in fact, should be something that’s

                        considered.”

       Kavanaugh stated that the PSI noted that defendant’s relationship with his parents changed when

       he became a teenager, he began drinking at 14 years of age, and began using cannabis at 15 years

       of age. Kavanaugh stated:

                                “It’s my clinical opinion that there’s nothing in the transcript of the

                        sentencing hearing that clarifies how the judge considered these things despite the

                        fact that they are in the PSI, which was known at the time or the clinical or how

                        the adolescent brain is structured and functions different than an adult brain. I saw

                        nothing in there in the record that noted that.”

¶ 14             Ultimately, the court denied defendant’s amended postconviction petition, finding that

       the Miller factors did not apply to defendant’s sentence as the sentence did not amount to a

       de facto life sentence or an actual life sentence where he was sentenced to 50 years’

       imprisonment, with day-for-day credit, and would thus be released when he was approximately

       41 years old. The court further found that the sentencing court “did look at [defendant’s]

       youthful status, [it] looked at all the factors, and exercised discretion within the sentencing

       range.”

¶ 15             Defendant filed a motion to reconsider, which was denied. In doing so, the court stated:

                        “I think the Court made the appropriate ruling when it denied the petition.

                                I do want to comment on one thing. The defense did argue regarding [the

                        sentencing court’s] comment, and specifically that comment in paragraph 6 of the


                                                          10 

supplemental brief filed by the defense. The record of [defendant’s] sentencing

hearing, including the PSI reports reviewed by the Court, do contain information

applicable to the Miller factors. [Defendant’s] case is distinguished from Holman

in at least one significant fact. The Court stated specifically that it was sentencing

[defendant] to 50 years irrespective of his age. And I don’t read that part of the

transcript as saying what the defense argue it says.

        [The sentencing court] was giving [its] ruling, and [it] says: [‘]You are

dangerous to the public. Even though you have rehabilitation potential, you are

still very dangerous, [defendant]. I don’t think you to this day realize what you

have done in this case.[’]

        And then the applicable language, which defense is citing: [‘]But courts

have a duty to protect citizens and the courts have a duty to punish severely

defendants who without provocation assault people on the street irrespective of

their age.[’]

        I don’t read that as saying [the sentencing court] is sentencing [defendant]

irrespective of his age. I read that as a general statement, a general principle of

law or concept that [the sentencing court] has that courts have a duty to punish

defendants severely who without provocation assault people on the street, and that

that duty is present regardless of their age.

        And I think when you read [the sentencing court’s] comments in their

entirety and, in fact, as stated in the brief, the record of [defendant’s] sentencing

hearing, including the PSI reports reviewed by the court do contain information

applicable to Miller factors.”


                                  11 

¶ 16                                              II. ANALYSIS

¶ 17          On appeal, defendant argues that the court erred in denying defendant’s postconviction

       petition because the sentencing court, when sentencing defendant to 50 years’ imprisonment, did

       not consider defendant’s “youth and its attendant circumstances.” Upon review, we find that

       defendant’s sentence is not a de facto life sentence and does not fall within the category of cases

       considered by Miller and its progeny. Moreover, even if defendant’s sentence was a de facto life

       sentence, the circuit court adequately considered defendant’s youth and its attendant

       circumstances.

¶ 18          “The Post-Conviction Hearing Act offers a procedural device through which a criminal

       defendant may assert that ‘in the proceedings which resulted in his or her conviction there was a

       substantial denial of his or her rights under the Constitution of the United States or of the State of

       Illinois or both.’ ” People v. Holman, 2017 IL 120655, ¶ 25 (quoting 725 ILCS 5/122-1(a)(1)

       (West 2010)). Here, defendant argued that his sentence of 50 years’ imprisonment was

       unconstitutional under the eighth amendment.

¶ 19          “The United States Supreme Court has repeatedly recognized the special characteristics

       of juvenile offenders.” People v. Gipson, 2015 IL App (1st) 122451, ¶ 52.

                        “When the offender is a juvenile and the offense is serious, there is a genuine risk

                        of disproportionate punishment. In Roper [v. Simmons, 543 U.S. 511 (2005)],

                        Graham [v. Florida, 560 U.S. 48 (2010)], and Miller, the United States Supreme

                        Court addressed that risk and unmistakably instructed that youth matters in

                        sentencing. Roper held that the eighth amendment prohibited capital sentences for

                        juveniles who commit murder. Roper, 543 U.S. at 578-79. Graham held that the

                        eighth amendment prohibited mandatory life sentences for juveniles who commit


                                                         12 

                       nonhomicide offenses. Graham, 560 U.S. at 82. And Miller held that the eighth

                       amendment prohibited mandatory life sentences for juveniles who commit

                       murder. Miller, 567 U.S. at 489, 132 S. Ct. at 2475.” Holman, 2017 IL 120655,

                       ¶ 33.

       Subsequently, our supreme court has held that Miller and its progeny stand for the proposition

       that “[l]ife sentences, whether mandatory or discretionary, for juvenile defendants are

       disproportionate and violate the eighth amendment, unless the trial court considers youth and its

       attendant characteristics.” Id. ¶ 40. De facto life sentences also fall into this category, as

                               “[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.” People v. Reyes, 2016 IL

                       119271, ¶ 9.

       In sum, if sentencing a juvenile defendant to life imprisonment or an unsurvivable prison term, it

       must first consider defendant’s youth and attendant circumstances. Thus, in analyzing a juvenile

       defendant’s sentence under the Miller cases, we first determine whether defendant’s sentence

       amounted to life imprisonment or a de facto life sentence. If so, then we determine whether the

       court considered defendant’s youth and its attendant circumstances.

¶ 20           Here, defendant was sentenced to 50 years’ imprisonment, with day-for-day sentencing

       credit. According to the Illinois Department of Corrections inmate database, which we take

       judicial notice of (People v. Smith, 2014 IL App (4th) 121118, ¶ 34), defendant is scheduled to


                                                         13 

       be paroled on May 15, 2019, when he is almost 41 years old. Defendant’s sentence does not

       amount to a de facto life sentence and does not fall into the category of cases considered by

       Miller and its progeny. Defendant’s sentence is similar to a myriad of cases in which the court

       held that the sentence imposed did not amount to a de facto life sentence. See, e.g., People v.

       Rodriguez, 2018 IL App (1st) 141379-B, ¶ 73 (50-year sentence, allowing release at age 65);

       Gipson, 2015 IL App (1st) 122451, ¶¶ 65-67 (52-year sentence, allowing release at age 60);

       People v. Pearson, 2018 IL App (1st) 142819, ¶ 49 (50-year sentence, allowing release at age

       55); People v. Evans, 2017 IL App (1st) 143562, ¶ 14 (90-year sentences, with day-for-day

       credit, allowing release at age 62). In fact, when released on parole defendant will be

       significantly younger than many similarly situated defendants.

¶ 21          In coming to this conclusion, we reject defendant’s request to extend the Miller line of

       cases to every case in which juvenile defendants are convicted of “Adult Crimes.” As stated

       above (supra ¶ 19), Miller and its progeny apply to some sort of life sentence for juveniles,

       whether mandatory, discretionary, or de facto, not to all juveniles convicted as an adult.

¶ 22          Significantly, even if the sentence here was a de facto life sentence, the record is clear

       that the court considered defendant’s youth and circumstances when sentencing defendant.

       Under Miller and subsequent case law, a defendant may be sentenced to life imprisonment or a

       de facto life sentence but only after the court has considered “the defendant’s youth and its

       attendant characteristics.” Holman, 2017 IL 120655, ¶ 46. Such characteristics include, but are

       not limited to:

                         “(1) the juvenile defendant’s chronological age at the time of the offense and any

                         evidence of his particular immaturity, impetuosity, and failure to appreciate risks

                         and consequences; (2) the juvenile defendant’s family and home environment;


                                                         14 

                       (3) the juvenile defendant’s degree of participation in the homicide and any

                       evidence of familial or peer pressures that may have affected him; (4) the juvenile

                       defendant’s incompetence, including his inability to deal with police officers or

                       prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile

                       defendant’s prospects for rehabilitation.” Id.

        “The inquiry into whether a sentencing court complied with Miller is backwards-looking.”

        Rodriguez, 2018 IL App (1st) 141379-B, ¶ 76.

                       “[T]he only evidence that matters is evidence of the defendant’s youth and its

                       attendant characteristics at the time of sentencing. *** A court revisiting a

                       discretionary sentence of life without parole must look at the cold record to

                       determine if the trial court considered such evidence at the defendant’s original

                       sentencing hearing.” Holman, 2017 IL 120655, ¶ 47.

¶ 23	          Here, the sentencing court stated that it had considered the PSI, the evidence presented by

        the parties, and the evidence from trial. The PSI stated that defendant was 16 years old, and the

        court noted more than once that defendant was young. Defendant’s parents both testified at the

        sentencing hearing about defendant’s home life, and ample information regarding it was included

        in the PSI. “Where relevant mitigating evidence is before the court, it is presumed that the court

        considered it absent some indication in the record to the contrary other than the sentence itself.”

        People v. Dominguez, 255 Ill. App. 3d 995, 1004 (1994). The PSI included information about

        defendant’s drug and alcohol use. In the PSI, defendant stated that Torres and Olvera “had been

        pressuring him to become involved in activities that he did not wish to become involved in.” The

        court noted that defendant was the “prime mover” behind the incident, but noted the peer

        involvement. The PSI showed that defendant had only completed tenth grade and had a low


                                                        15 

       grade point average, but there was no evidence presented that defendant was incompetent or

       could not communicate with police officers or prosecutors. Further, the court specifically noted

       that defendant had rehabilitative potential and the PSI showed his marked improvement while at

       the Mary Davis Detention Home. Therefore, the court adequately considered the Miller factors.

¶ 24          In coming to this conclusion, we note that defendant says, “the court specifically stated

       that it was sentencing [defendant] to 50 years ‘irrespective of [his] age.’ ” He then provides five

       definitions of the word “irrespective” and argues that such statement means that the court did not

       consider defendant’s age. At the motion to reconsider the denial of the postconviction petition,

       the circuit court responded to the same argument, stating:

                      “[The sentencing court said, ‘]But courts have a duty to protect citizens and the

                      courts have a duty to punish severely defendants who without provocation assault

                      people on the street irrespective of their age.[’]

                             I don’t read that as saying [the sentencing court] is sentencing [defendant]

                      irrespective of his age. I read that as a general statement, a general principle of

                      law or concept that [the sentencing court] has that courts have a duty to punish

                      defendants severely who without provocation assault people on the street, and that

                      that duty is present regardless of their age.”

       We agree with the circuit court’s assessment.

¶ 25          We further reject defendant’s statement that “Dr. Kavanaugh’s learned conclusion that

       the transcript of the sentencing hearing failed to support a finding that the sentencing judge

       thoughtfully considered and applied the ‘transient characteristics of youth’ must be given great

       weight in evaluating whether [defendant’s] sentence is in compliance with our constitution.”

       Kavanaugh specifically stated:


                                                        16 

                             “It’s my clinical opinion that there’s nothing in the transcript of the

                     sentencing hearing that clarifies how the judge considered these things despite the

                     fact that they are in the PSI, which was known at the time or the clinical or how

                     the adolescent brain is structured and functions different than an adult brain. I saw

                     nothing in there in the record that noted that.”

       First, as stated above, when mitigating evidence is presented, it is presumed that the court

       considered it, unless there is some indication to the contrary. Supra ¶ 23 (quoting Dominguez,

       255 Ill. App. 3d at 1004). Here, there was no indication to the contrary. There is no requirement

       that the court explicitly state on the record everything it considered when sentencing the

       defendant or the weight it gave. People v. Burgess, 2015 IL App (1st) 130657, ¶ 227. Second,

       Kavanaugh’s clinical opinion has no bearing on our legal review of the facts of defendant’s

       sentencing hearing. Kavanaugh did not interview defendant when he was 16 years old and did

       not have any opinion on defendant’s specific mental development and characteristics at that time.

¶ 26                                          III. CONCLUSION

¶ 27          The judgment of the circuit court of Rock Island County is affirmed.

¶ 28          Affirmed.




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