                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Pacheco, 2013 IL App (4th) 110409




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     MARIA S. PACHECO, Defendant-Appellant.



District & No.              Fourth District
                            Docket No. 4-11-0409


Filed                       June 24, 2013


Held                        Defendant minor’s convictions for multiple counts of first degree murder
(Note: This syllabus        arising from the death of her uncle at the hands of defendant’s boyfriend
constitutes no part of      in the course of a robbery were upheld over her contentions that the
the opinion of the court    automatic transfer provisions of the Juvenile Court Act violated the
but has been prepared       proportionate penalties clause, the prohibition against cruel and unusual
by the Reporter of          punishment, and a juvenile’s due process rights, and that her counsel was
Decisions for the           ineffective in failing to understand the felony murder rule, failing to
convenience of the          impeach her boyfriend, failing to object to the leading questions posed to
reader.)
                            him, and failing to tender separate instructions for each murder count.


Decision Under              Appeal from the Circuit Court of Clark County, No. 10-CF-63; the Hon.
Review                      Tracy W. Resch, Judge, presiding.



Judgment                    Affirmed as modified; cause remanded with directions.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Jacqueline L. Bullard (argued),
Appeal                     all of State Appellate Defender’s Office, of Springfield, for appellant.

                           Dennis E. Simonton, State’s Attorney, of Marshall (Patrick Delfino,
                           Robert J. Biderman, and Anastacia R. Brooks (argued), all of State’s
                           Attorneys Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE POPE delivered the judgment of the court, with opinion.
                           Justice Holder White concurred in the judgment and opinion.
                           Justice Appleton dissented, with opinion.




                                              OPINION

¶1          On January 14, 2011, a jury found defendant, Maria S. Pacheco (born June 26, 1994),
        guilty of robbery (accountability), unlawful possession of a stolen vehicle, and first degree
        murder (accountability). The trial court sentenced her to 30 years in prison for murder
        pursuant to section 5-130(1)(c)(i) of the Juvenile Court Act of 1987 (Juvenile Court Act)
        (705 ILCS 405/5-130(1)(c)(i) (West 2008)). Defendant appeals, arguing the following: (1)
        the trial court erred in refusing to tender separate jury instructions for each charged count of
        murder; (2) trial counsel provided ineffective assistance of counsel by (a) conceding her guilt
        of felony murder based on his misapprehension of the felony murder rule, (b) failing to
        impeach the State’s star witness with text messages he sent to other women, and (c) failing
        to object to the State improperly leading its star witness with questions about text messages
        between the witness and defendant; (3) the automatic exclusion of 15- and 16-year-olds
        charged with felony murder or murder by accountability from juvenile court, thereby
        requiring the automatic application of an adult sentencing range, violates due process, the
        eighth amendment to the United States Constitution, and the proportionate penalties clause
        of the Illinois Constitution; (4) the mandatory application of truth in sentencing to minors
        convicted of murder by accountability or felony murder violates the eighth amendment and
        the proportionate penalties clause; and (5) defendant is entitled to additional sentence credit.
        We affirm defendant’s conviction but remand for the trial court to grant defendant additional
        sentencing credit.

¶2                                      I. BACKGROUND
¶3         On July 15, 2010, the State charged defendant as an adult with three counts of first degree
        murder based on her accountability for the death of her uncle, Arnulfo Pacheco. These three
        counts were based on defendant’s intent to kill (720 ILCS 5/9-1(a)(1) (West 2008)) (count


                                                  -2-
       I), knowledge the acts would result in the victim’s death (720 ILCS 5/9-1(a)(1) (West 2008))
       (count II), and knowledge the acts would create a strong probability of the victim’s death
       (720 ILCS 5/9-1(a)(2) (West 2008)) (count III), respectively.
¶4          On December 3, 2010, the State added a fourth count alleging first degree murder based
       on accountability (720 ILCS 5/9-1(a)(3) (West 2008)) (count IV), alleging defendant’s
       accomplice, Jarrod Riley, intentionally struck Arnulfo Pacheco in the head with a hammer
       causing his death while defendant and Riley were committing a robbery.
¶5          On December 30, 2010, the State charged defendant with robbery based on accountability
       (720 ILCS 5/18-1 (West 2008)) (count V), alleging she knowingly took $500 from the victim
       by the use of force. The State also charged defendant with unlawful possession of a stolen
       vehicle (625 ILCS 5/4-103(a)(1) (West 2008)) (count VI).
¶6          On January 11, 2011, defendant’s trial commenced. After the State laid out its case in its
       opening argument, defense counsel made his opening statement, stating in part:
                 “We believe the evidence will show that all this young girl wanted was to run away
            with her fiancé. She did not intend to have her uncle killed. She did not know he would
            be killed. In fact, did not know he was killed until after she came downstairs. Arnulfo
            Pacheco was killed only because Jarrod Riley lost control in his jealous rage and she
            wasn’t present.
                 We think the evidence will show she may be guilty of some other things, such as
            Possession of the Stolen Vehicle, but the evidence will not show that she’s guilty in any
            way of Murder, and we would ask you to find her not guilty of that offense.”
¶7          The State’s first witness was Dr. Roland Kohr. Dr. Kohr testified he performed an
       autopsy on the body of Arnulfo Pacheco and found the cause of death was “[b]lunt force
       injuries to the head combined with sharp forced injury to the neck and head, with extenuating
       hemorrhage.”
¶8          Illinois State Police crime scene investigator Daniel Glover testified he collected a
       hammer and a piece of glass with sharp edges from the house where Arnulfo Pacheco was
       found. Investigator Glover also testified he collected a broken videocassette recorder (VCR)
       located near the victim’s body.
¶9          Investigator Alex Latimer of the Camden police department in Camden, Tennessee,
       testified he received information from the Illinois State Police on July 16, 2010, a couple
       wanted for murder might be in his area. Latimer was given the names and physical
       description of the couple and a vehicle description for a 2005 Chevy Avalanche with Illinois
       registration. Latimer testified he located the vehicle at approximately 4 p.m. Latimer then
       took defendant and Riley into custody.
¶ 10        Illinois State Police special agent Holly Stroud-Finney testified she was the lead agent
       in the investigation in this case. She traveled to Tennessee after defendant and Riley were
       arrested and interviewed both of them. Before the interviews, she had obtained from Verizon
       text messages defendant and Riley sent each other between July 5, 2010, and July 13, 2010.
       As the lead agent in the investigation, Stroud-Finney knew how the victim died and knew
       duct tape had been wrapped around the victim’s face and neck and bleach had been found
       at the residence. Information contained in the text messages matched evidence found at the

                                                -3-
       crime scene. On cross-examination, Stroud-Finney acknowledged the information she
       received from Verizon only disclosed the phone numbers from which the text messages were
       sent and not who actually sent the messages.
¶ 11       Jarrod Riley was then called for the limited purpose of establishing the contents of the
       text messages the investigators had received from Verizon. Riley testified he and defendant
       communicated via text message. Riley testified People’s exhibit No. 410A-R accurately
       contained the text messages exchanged between him and defendant during the seven-day
       period in question. Riley testified he sent the text messages from his phone. He also testified
       defendant was protective of her phone so that no one else could use it.
¶ 12       Defense counsel challenged the admission of the text messages, arguing inadequate
       foundation and the messages constituted hearsay. The court admitted the text messages into
       evidence, finding they were “sufficiently authenticated by circumstantial evidence such as
       appearance, contents, substance, internal patterns and other distinctive characteristics.” The
       court told the jurors they were not to assume the text message conversations were actually
       conducted by defendant and Riley, but they should make their own determination who
       authored the messages.
¶ 13       Riley testified he and defendant started dating in the spring of 2010 and began having a
       sexual relationship. He was 20, and defendant was 15. He stated defendant was the first girl
       he loved. In June 2010, defendant had her sixteenth birthday. Defendant told Riley she
       thought her uncle, Arnulfo, was going to get her a car for her birthday, but this did not
       happen. Riley testified defendant was not happy at home. She told him she always fought
       with her parents and hated her uncle. She said her father hit her and her mother. Riley
       testified defendant wanted to run away and he wanted to help her.
¶ 14       Riley testified he and defendant talked and texted about using bleach to knock out her
       uncle so they could take his car. He sent her a text message asking if she had rope or duct
       tape. She responded she thought there was some in the garage. Defendant later texted Riley
       to say they were out of duct tape, but she would buy some and keep looking for rope.
       Defendant suggested taking her father’s checkbook with them to pay for things.
¶ 15       Riley texted defendant on July 10, 2010, and told her he wanted to leave on Monday. The
       texts showed the plan was for him to get to defendant’s house, wait for her uncle to arrive,
       knock him out, tie him up, and take his car before he woke up. Defendant responded the plan
       sounded good. She said she would need to make sure she was home alone. Riley sent her
       another text and said she needed to soak a rag in bleach for Monday. Defendant confirmed
       she received the text message. Riley testified the rag and bleach were ultimately going to be
       used on Arnulfo.
¶ 16       Riley texted defendant and said he was going to take a cab to Marshall on Monday.
       Defendant replied her uncle would leave for work at 10 or 11 so Riley would need to get
       there earlier than that. Riley sent her a text message asking how they would get Arnulfo into
       her house. Riley testified he sent defendant another message telling her not to stop him no
       matter what he did to her uncle. She responded she would not stop him.
¶ 17       According to Riley’s testimony, their plan later changed to killing Arnulfo and taking his
       truck. Riley testified on July 11, 2010, he sent defendant a text message stating they were

                                                -4-
       going to steal her uncle’s “shit” after “i do what im doing to your uncle.” He then sent
       defendant a text message which asked if defendant had any sharp knives at her house.
       Defendant responded shortly thereafter asking what Riley was planning to do. Riley sent her
       a text, stating he was going to “ ‘F’ him up but if he fights back well you understand, righ.”
       Defendant responded asking what Riley meant by “ ‘F’ him up.” She also said she did not
       think they needed to be “killing anyone yet.”
¶ 18        Riley sent defendant a text message directing her to tell her uncle something was wrong
       with their toilet as a ruse to lure him into the house. He asked what time her uncle would be
       at her house. Defendant responded her uncle would be there around 10 a.m. before leaving
       for work. Riley sent defendant a text which said, “Then lets do this and be free and do unto
       ppl that has been done unto us.” Riley said his intent was to kill defendant’s uncle. Defendant
       responded texting “yes lets.” Riley sent another text to defendant, which read, “I love you
       more than anything you might see a side of me tomorrow very few ppl see don’t be scared
       cuz i would never hurt you.” Riley sent defendant a message, texting, “I am already know
       what i am doing don’t stop me soon you will have to be cold.” Defendant responded, texting,
       “Huh.” Riley texted her the following message, “Don’t stop me no matter how it turns out.”
¶ 19        Shortly thereafter, Riley asked defendant if she found bleach and a rag. Defendant replied
       she had. Riley also texted defendant asking whether she found a good strong knife.
       Defendant responded the knives she found were not that sharp or strong.
¶ 20        According to Riley, defendant told him her uncle inappropriately touched her by rubbing
       her inner thigh and lower back and kissing her on the cheek. Riley sent defendant a text,
       which read, “Was just going to knock him out but he is touching little girls and tried to touch
       my fiancé it ends tomorrow.” Defendant replied, texting, “yea thats wat i thought you were
       planing to do.”
¶ 21        Riley sent defendant another text, stating, “Lol i love you you are starting to sound and
       act like me thats good.” Defendant responded, texting, “Lol I can be evil bad cruel sometimes
       lol.” Riley replied, texting, “Be it more often just not to me ok baby it will help us in the
       future a lot.” Riley sent defendant another message, texting, “Tomorrow we kill a bad man
       then we start our lives over just you and me.” Defendant responded, texting, “Yes just you
       and me.”
¶ 22        Riley later asked defendant if she had a baseball bat. Defendant said she did not.
       Defendant sent Riley a message, stating, “Have bunch of metal rods in garage tho.” They
       texted about the size and strength of the rods. Riley sent defendant a message, texting, “I
       don’t want them to break i want them to be strong im thinking just cutting his throat.”
       Defendant responded, “They wont break. Do wat you need to do. All i ask is that i see none
       of it if possible.” Defendant later texted Riley her uncle deserved “it,” but she did not want
       to see “it.”
¶ 23        Riley testified he texted defendant shortly after midnight on July 12, 2010, “Be happy are
       you sure you want this to still happen.” He was talking about killing her uncle and running
       away. Defendant responded, “I am happy. Yes i’m sure that i want to do this.”
¶ 24        Riley sent defendant a text the morning of July 12, 2010, asking if she was “ready for this
       baby.” Defendant responded she was. As he was traveling to Marshall, Riley and defendant

                                                 -5-
       exchanged text messages about her family’s whereabouts. Riley went to defendant’s house
       after her family left. Defendant got the bleach, and they moved a couch in front of the
       entryway to the kitchen. Riley put the bleach in a bowl and soaked the rag.
¶ 25       When defendant saw her uncle outside the house, she called to him from the kitchen
       window and said something was wrong with the bathroom. Defendant did not tell her uncle
       Riley was in the house. After Arnulfo checked on the bathroom, defendant pushed him at
       Riley. According to Riley, defendant told him to remember what her uncle had done to her.
       Riley grabbed Arnulfo by the throat and covered his mouth with the bleach-soaked rag.
       Although he could not see defendant at that time, he testified he could “tell she was there.”
¶ 26       Riley testified the bleach did not knock Arnulfo out like he expected. Instead, Arnulfo
       tried to hit Riley with a hammer. Riley took the hammer from Arnulfo and hit him with it.
       The struggle between Riley and Arnulfo went from the foyer to the dining room of the home.
       Riley testified he did not know how many times he hit the victim with the hammer. Arnulfo
       was still struggling, and Riley hit him over the head with a VCR and then smashed a glass
       tabletop over his head. The glass tabletop broke, and Riley grabbed a piece of the glass and
       stabbed Arnulfo twice in his neck. Arnulfo stopped struggling at that point. Riley then taped
       the bleach-soaked rag over the victim’s mouth with the duct tape defendant had brought into
       the house.
¶ 27       Riley testified Arnulfo was screaming defendant’s name during the struggle, but she did
       nothing to aid him. After Riley taped the rag over Arnulfo’s mouth, he saw defendant in the
       foyer, shaking. Riley asked if she was okay, and she said yes. Defendant went upstairs and
       grabbed her clothes and other things, which were already packed. She and Riley then started
       loading the victim’s truck. They left the house within 5 to 10 minutes after Arnulfo was
       killed. After they got in Arnulfo’s truck, defendant asked Riley if he got Arnulfo’s wallet.
       He told her he did not. He testified defendant “gave me a look,” and he went back in and got
       the wallet.
¶ 28       Riley testified defendant never tried to get away from him or call the police. They were
       arrested in Camden, Tennessee. According to Riley’s testimony, while he and defendant were
       driving through Indiana, defendant told him she thought they should live a life of crime like
       Bonnie and Clyde, robbing and killing people.
¶ 29       On cross-examination, Riley testified he pled guilty to one count of first degree murder,
       one count of robbery, and one count of possession of a stolen vehicle. He had not yet been
       sentenced. Riley testified he did not have an agreement with the State’s Attorney to receive
       anything for his testimony. However, Riley said his testimony could benefit him during
       sentencing. Riley acknowledged what he told investigators after his arrest differed from his
       testimony.
¶ 30       After his arrest, Riley told investigators his plan was to knock out or tie up Arnulfo and
       take his car. Riley admitted telling investigators he killed Arnulfo in a blind rage after the
       victim smiled at him. Riley also told investigators he was just joking around in the text
       messages before the murder. He admitted he did not originally tell investigators defendant
       pushed her uncle into him. Riley also acknowledged he did not get a knife or any other kind
       of weapon from the kitchen or anywhere else to use on Arnulfo, even though he testified his


                                                -6-
       intent before the attack was to kill the victim. The only thing Riley had when he grabbed
       Arnulfo was the rag soaked in bleach and the duct tape.
¶ 31       After Riley’s testimony, the State recalled special agent Stroud-Finney. Stroud-Finney
       testified she traveled to Tennessee after defendant’s arrest. That night, Stroud-Finney
       interviewed defendant at the Camden police department in Camden, Tennessee. The
       interview was video recorded. The video of the interview was played for the jury.
¶ 32       During the interview, defendant said she told Arnulfo something was wrong with the
       bathroom sink when he came to the house to return some dishes. She also admitted she was
       present when Riley initially grabbed Arnulfo and put the bleach-soaked rag over his mouth.
       She then ran outside, went around the house to the front door, reentered the home, saw Riley
       struggling with her uncle, and went upstairs to her bedroom. She could hear her uncle
       screaming at Riley and for the neighbors. She said she also heard Arnulfo screaming her
       name and heard things being thrown and breaking.
¶ 33       The struggle between Arnulfo and Riley lasted about five minutes. When she came
       downstairs and asked Riley what happened, Riley told her Arnulfo was dead. According to
       her interview, the original plan was not for Riley to kill her uncle, but only take his keys.
       However, during the struggle, Arnulfo asked Riley why he was doing this. Riley told Arnulfo
       he knew Arnulfo molested defendant, and Riley was going to take defendant away from
       Arnulfo. Arnulfo allegedly responded he could still molest defendant’s sisters. This made
       Riley mad, and Riley killed Arnulfo.
¶ 34       Defendant admitted Riley told her prior to the day of the attack he might kill Arnulfo.
       She told the officers she was not afraid of Riley and went along with his plan willingly. She
       just did not want to see the actual murder. She told the officers she thought Arnulfo deserved
       what happened to him because he was a “bad person.” When the officers asked defendant
       to describe the alleged molestation, defendant said Arnulfo rubbed her back on top of her
       clothes and tried to kiss her on the cheek. She also said Arnulfo never tried to do anything
       sexual or inappropriate to her. According to her statement, they would not have had to hurt
       Arnulfo if he had given her a car for her sixteenth birthday.
¶ 35       Defendant testified on her own behalf. She was 15 when she met Riley, who was 20, in
       the spring of 2010. The relationship became serious over the summer. At one point, she
       referred to him as her fiancé. Riley was her first boyfriend. She expressed frustration over
       her home life to Riley. In June 2010, Riley had to move from where he was living. At that
       time, he began talking about running away with defendant. When Arnulfo failed to give
       defendant a car for her birthday, Riley suggested they take her uncle’s car. Riley told her he
       would use a bleach-soaked rag to make her uncle unconscious so they could take his car keys
       without hurting him. Defendant was scared because she did not know what Riley would do
       to her and her sisters if he was willing to do that to her uncle. She did not think anyone but
       Riley cared for her at that time.
¶ 36       Defendant admitted she made arrangements to get duct tape to use on her uncle. She
       testified Riley told her many times he had everything figured out and asked her to trust him.
       Defendant testified she did trust him. She thought the plan was just to run away. According
       to defendant, she thought Riley might beat up her uncle, not kill him. With regard to her


                                                -7-
       responses to Riley’s text messages about killing her uncle, defendant testified both she was
       not responding to Riley’s comments about killing her uncle and she was just joking around.
       She testified she did not think Riley was serious about killing her uncle. When Riley grabbed
       her uncle, she ran out the back door and then back in the front door. She saw Riley leading
       her uncle into the dining room. She went upstairs to her bedroom and heard a struggle
       downstairs. It eventually became quiet in the house. She came downstairs and saw blood in
       the hallway and dining room. Riley told her not to come any closer and to get her stuff
       together and put it in the truck, which she did.
¶ 37       Defendant denied sending Riley back into the house to get her uncle’s wallet. She also
       denied pushing her uncle into Riley or telling him to remember what her uncle had done to
       her. She also denied telling Riley they should live a life of crime. According to her testimony,
       defendant thought the plan was only to tie Arnulfo up and take his vehicle.
¶ 38       On cross-examination, defendant admitted helping steal her uncle’s truck, although she
       said it was Riley’s plan. She also admitted letting Riley into the house, buying duct tape to
       be used to tape her uncle to a chair, and tricking her uncle into coming into the house. On
       redirect, defendant testified she thought Riley was just going to make her uncle unconscious
       and then take his stuff.
¶ 39       At the end of his closing argument on defendant’s behalf, counsel made the following
       plea for the jury to take pity on defendant:
                “Well, what we have here with [defendant] is a young, quiet girl. A young girl who
           thought she was in love and she made bad decisions. She trusted and relied on Jarrod
           Riley. She believed his promises and the things that he was telling her that were going
           to happen. She continued to believe the plan was going to get carried out just as they had
           set forth to begin with, which was a plan to restrain Arnulfo and to take his truck.
                There was no intent to kill by her or by either of them at the start of the day on July
           12th. There was no intent to kill by her. There was no expectation or anticipation of
           killing by her. It was anticipated he would be secured. She’s guilty of some things, we
           acknowledge that, she’s guilty of possession of the stolen vehicle, perhaps she’s even
           guilty of robbery, but she’s not guilty of murder.
                We’re asking you not to compound this tragedy to the Pacheco family by finding her
           guilty of a crime she did not commit. We’re asking you to find her not guilty of murder.
           Thank you.”
       The jury found defendant guilty of unlawful possession of a stolen vehicle, robbery
       (accountability), and first degree murder (accountability).
¶ 40       On March 8, 2011, defendant filed a motion for a new trial, contending the trial court
       erred in allowing text messages to be presented to the jury because the messages were
       hearsay and were not properly authenticated; the court erred by allowing the use of a general
       verdict form rather than separate verdict forms for each alleged count of murder; and the
       State did not present sufficient evidence to prove defendant guilty of first degree murder. The
       court denied the motion.
¶ 41       On March 22, 2011, the trial court sentenced defendant to 30 years in prison with 3 years
       of mandatory supervised release (MSR) and credit for 239 days served. In sentencing

                                                 -8-
       defendant, the court took into account her age and stated the evidence would suggest her
       potential for rehabilitation is greater than that of most juveniles who might find themselves
       in similar circumstances. The court noted defendant would serve 100% of the sentence.
¶ 42       The trial court stated the text messages and defendant’s conduct left no reasonable doubt
       defendant knowingly planned, aided, and abetted in the murder of Arnulfo. According to the
       court:
               “On the day of the crime she laid the groundwork for the murder, first by inviting and
           encouraging Jarrod Riley to come to Marshall by cab from Terre Haute, and secondly,
           by asking Arnulfo Pacheco into her family’s home on the pretext of a plumbing problem.
           Her invitation set him up for Jarrod Riley’s attack.”
       The court found nothing in the circumstances of the offense suggested defendant had second
       thoughts or attempted to withdraw from the planned murder. The court stated:
           “Although Maria Pacheco is guilty by reason of accountability only, nonetheless, it must
           be observed that she was deeply and actively involved in the murder. She was personally
           present during the commission of the murder, which was premeditated and planned. The
           victim was the Defendant’s uncle and the murder was committed so the codefendants
           might take the victim’s vehicle and property.”
       The court also noted defendant supplied Riley with implements to use in the attack and by
       encouraging Riley to attack her uncle. The court stated:
           “She actively furthered the murder. Her participation was essential to the commission of
           the murder, and the murder would not have occurred but for her encouragement of Jarrod
           Riley and her participation in its planning and execution.”
       On April 4, 2011, defendant filed a motion to reconsider sentence, which was later denied.
¶ 43       This appeal followed.

¶ 44                                     II. ANALYSIS
¶ 45       We choose not to address defendant’s arguments in the order in which they are raised in
       her appellate brief. Instead, we will first address the constitutional arguments she raises.
       Second, we will address her arguments regarding the effectiveness of her trial counsel. Then,
       we will address defendant’s argument regarding the verdict forms. Finally, we will address
       her argument she was not provided all the sentencing credit she deserved.

¶ 46                               A. Constitutional Arguments
¶ 47        Section 5-130(1)(a)(i) of the Juvenile Court Act (705 ILCS 405/5-130(1)(a)(i) (West
       2008)) (automatic transfer statute), provides “[t]he definition of delinquent minor under
       Section 5-120 of this Article shall not apply to any minor who at the time of an offense was
       at least 15 years of age and who is charged with *** first degree murder.” Defendant was
       tried as an adult pursuant to this section of the Juvenile Court Act. Pursuant to section 5-
       130(1)(c)(i) of the Juvenile Court Act (705 ILCS 405/5-130(1)(c)(i) (West 2008)), the trial
       court had “available any or all dispositions prescribed for that offense under Chapter V of
       the Unified Code of Corrections [(Unified Code)].” Section 5-4.5-20(a) of the Unified Code

                                                -9-
       (730 ILCS 5/5-4.5-20(a) (West 2008)) provides the sentencing range for murder is 20 to 60
       years of imprisonment. As a result, defendant was subject to a minimum 20-year prison
       sentence without the trial court being able to consider defendant’s age or culpability. Further,
       section 3-6-3(a)(2)(i) of the Unified Code (730 ILCS 5/3-6-3(a)(2)(i) (West 2008)) provides
       such a sentence may not be reduced through good-conduct credit. Defendant argues these
       statutes both individually and when applied together are unconstitutional for a variety of
       reasons.
¶ 48       We presume statutes are constitutional. People v. Miller, 202 Ill. 2d 328, 335, 781 N.E.2d
       300, 305 (2002). As a result, a defendant challenging the constitutionality of a statute must
       establish its constitutional invalidity. Miller, 202 Ill. 2d at 335, 781 N.E.2d at 305. In Miller,
       our supreme court noted:
               “We have repeatedly recognized that the legislature has discretion to prescribe
           penalties for defined offenses. [Citation.] The legislature’s discretion necessarily includes
           the power to prescribe mandatory sentences, even if these mandatory sentences restrict
           the judiciary’s discretion in imposing sentences. [Citation.] However, the power to
           impose sentences is not without limitation; the penalty must satisfy constitutional
           constrictions.” Miller, 202 Ill. 2d at 336, 781 N.E.2d at 306.
¶ 49       Defendant’s argument is primarily based on three recent United States Supreme Court
       decisions. See Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48, 130
       S. Ct. 2011 (2010); Miller v. Alabama, 567 U.S.___, 132 S. Ct. 2455 (2012). In Roper, the
       Supreme Court held the eighth amendment bars capital punishment for juvenile offenders.
       Roper, 543 U.S. at 568. According to the Court, “[b]ecause the death penalty is the most
       severe punishment, the Eighth Amendment applies to it with special force.” Roper, 543 U.S.
       at 568. In Graham, the Court held a sentence of life without the possibility of parole violates
       the eighth amendment when imposed on juvenile offenders for crimes other than homicide.
       Graham, 560 U.S. at ___, 130 S. Ct. at 2034. The Court stated although “[t]he Eighth
       Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes
       committed before adulthood will remain behind bars for life,” “[i]t does forbid States from
       making the judgment at the outset that those offenders never will be fit to reenter society.”
       Graham, 560 U.S. at ___, 130 S. Ct. at 2030. In Miller, the Court held the eighth amendment
       prohibits “a sentencing scheme that mandates life in prison without possibility of parole for
       juvenile offenders,” even those convicted of homicide offenses. Miller, 567 U.S. at ___, 132
       S. Ct. at 2469. According to the Court, “[b]y making youth (and all that accompanies it)
       irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk
       of disproportionate punishment.” Miller, 567 U.S. at ___, 132 S. Ct. at 2469.
¶ 50       These three decisions dealt with the two most severe forms of punishment allowed under
       the United States Constitution, i.e., the death penalty and life imprisonment without the
       possibility of parole. However, defendant argues the reasoning behind these three opinions
       should not be limited to sentences of death and life without the possibility of parole. Relying
       on the following quote from Graham, “[a]n offender’s age is relevant to the Eighth
       Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into
       account at all would be flawed” (Graham, 560 U.S. at ___, 130 S. Ct. at 2031), defendant
       essentially argues any jurisdictional or sentencing statute that automatically treats a juvenile

                                                 -10-
       the same as an adult is unconstitutional. With regard to this particular case, defendant argues
       the automatic transfer of juveniles is unconstitutional, the automatic imposition of an adult
       sentence on these juveniles is unconstitutional, and the juveniles’ automatic inability to
       receive good-conduct credit is also unconstitutional.
¶ 51       We disagree with defendant’s expansive reading of this single sentence. As we stated
       earlier, the Supreme Court in Roper, Graham, and Miller was only concerned with the death
       penalty and life without the possibility of parole, which are the two most severe punishments
       allowed under the United States Constitution. We agree with the State “[i]t would be a great
       stretch to say that Graham meant to require legislatures and courts to treat youths and adults
       differently in every respect and every step of the criminal process.” As we have covered this
       topic in a broad manner, we now look at defendant’s specific arguments.

¶ 52                 1. Eighth Amendment and Proportionate Penalties Clause
¶ 53                                 a. Automatic Transfer Statute
¶ 54       Defendant first argues section 5-130 of the Juvenile Court Act (705 ILCS 405/5-130
       (West 2008)) violates the eighth amendment of the United States Constitution and the
       proportionate penalties clause of the Illinois Constitution because it automatically requires
       the transfer of certain juvenile defendants into adult court. The eighth amendment to the
       United States Constitution (U.S. Const., amend. VIII) prohibits the imposition of cruel and
       unusual punishment. 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. The proportionate penalties clause has been read as coextensive with the eighth
       amendment. In re Rodney H., 223 Ill. 2d 510, 518, 861 N.E.2d 623, 628 (2006).
¶ 55       We do not find the automatic transfer statute violates either the eighth amendment or the
       proportionate penalties clause of the Illinois Constitution. In People v. Salas, 2011 IL App
       (1st) 091880, ¶ 66, 961 N.E.2d 831, the First District found the automatic transfer statute
       “does not impose any punishment on the juvenile defendant, but rather it only provides a
       mechanism for determining where defendant’s case is to be tried.” Since the statute does not
       impose any punishment, the First District found it was not subject to the eighth amendment.
       Salas, 2011 IL App (1st) 091880, ¶ 66, 961 N.E.2d 831; see also People v. Jackson, 2012 IL
       App (1st) 100398, ¶¶ 23-24, 965 N.E.2d 623. We agree with the First District’s reasoning.

¶ 56                        b. Automatic Imposition of Adult Sentence
¶ 57       Defendant next argues the automatic imposition of any adult sentence on a juvenile
       defendant as a result of the automatic transfer statute violates the eighth amendment and the
       proportionate penalties clause. As stated earlier, when taken to its logical extreme,
       defendant’s argument would make any statute unconstitutional which imposes on a juvenile
       transferred to adult court the same mandatory minimum sentence applicable to an adult for
       the same offense. We disagree.
¶ 58       Defendant reads Roper, Graham, and Miller too broadly. The Supreme Court did not


                                                -11-
       hold in Roper, Graham, or Miller the eighth amendment prohibits a juvenile defendant from
       being subject to the same mandatory minimum sentence as an adult, unless the mandatory
       minimum sentence was death or life in prison without the possibility of parole. Defendant
       was sentenced to neither of these. The minimum 20-year term defendant faced in this case
       does not compare with the death penalty or a mandatory term of life in prison without the
       possibility of parole. The sentencing range applicable to defendant in this case is not
       unconstitutional pursuant to Roper, Graham, and Miller, and the sentence defendant received
       violated neither the eighth amendment nor the proportionate penalties clause.

¶ 59                                   c. Truth in Sentencing
¶ 60        Defendant next argues “[w]hether considered alone or in combination with the excluded
       jurisdiction scheme ***, the automatic application of truth-in-sentencing to minors convicted
       of murder by accountability or felony murder by accountability violates the eighth
       amendment to the U.S. Constitution and the proportionate penalties clause of the Illinois
       Constitution.” For the same reasons we do not find the automatic exclusion statute or the
       imposition of the sentencing ranges applicable to adults violates either the eighth amendment
       or the proportionate penalties clause, we do not find the application of the truth-in-sentencing
       statute unconstitutional in this case.

¶ 61                                   2. Due Process Clauses
¶ 62        Defendant contends Illinois’s excluded jurisdiction scheme violates the due process
       clauses of both the United States Constitution (U.S. Const., amends. V, XIV) and the Illinois
       Constitution (Ill. Const. 1970, art. I, § 2) because a trial court cannot make an individualized
       determination whether a minor should be transferred to criminal court and subject to adult
       sentencing requirements. The due process clauses contained in both the United States and
       Illinois Constitutions prohibit the government from depriving any individual of “life, liberty
       or property, without due process of law.” U.S. Const., amends. V, XIV; Ill. Const. 1970, art.
       I, § 2.
¶ 63        Illinois courts have found the automatic transfer statute does not violate a juvenile
       offender’s substantive and procedural due process rights. See People v. J.S., 103 Ill. 2d 395,
       402-05, 469 N.E.2d 1090, 1094-95 (1984); People v. Patterson, 2012 IL App (1st) 101573,
       ¶ 27, 975 N.E.2d 1127; People v. Croom, 2012 IL App (4th) 100932, ¶¶ 13-18, 975 N.E.2d
       1107; Jackson, 2012 IL App (1st) 100398, ¶¶ 13-17, 965 N.E.2d 623; Salas, 2011 IL App
       (1st) 091880, ¶¶ 75-79, 961 N.E.2d 831; People v. Reed, 125 Ill. App. 3d 319, 322-25, 465
       N.E.2d 1040, 1042-44 (1984). In Croom, 2012 IL App (4th) 100932, ¶ 16, 975 N.E.2d 1107,
       this court noted Roper and Graham did not consider due process arguments and found those
       cases distinguishable because each “applied (1) a different analysis (2) under a different test
       for (3) an alleged violation of a different constitutional provision regarding severe sentencing
       sanctions—not the automatic transfer to adult court at issue here.” Miller does not require a
       different result because it only dealt with eighth-amendment arguments and not substantive
       and procedural due process.
¶ 64        In addition, we note the trial court here took into account defendant’s youth. The court

                                                 -12-
       also considered the extent of defendant’s participation in aiding and abetting Arnulfo’s
       murder, noting he would not have been killed but for defendant’s complicity in the crime.
       Moreover, the court imposed a 30-year sentence, 10 years more than the minimum available
       sentence, after considering the nature of the crime and the factors in mitigation. This is clearly
       not a case where the trial judge felt unduly constrained by the options available to him with
       respect to the sentencing minimums.
¶ 65       As our supreme court’s opinion in J.S. remains good law and defendant fails to persuade
       the eighth amendment analysis in Miller should be applied to her due process arguments, her
       claim the automatic transfer statute is unconstitutional is without merit.

¶ 66                                           3. Policy
¶ 67       We agree with the dissent’s observation not all juvenile offenders are the same. We also
       agree with the dissent the blanket transfer to adult criminal court of all juveniles of a certain
       age charged with certain offenses may not be good policy. However, we cannot find a statute
       unconstitutional simply because we believe it creates bad policy. “In relation to the judicial
       branch, the General Assembly, which speaks through the passage of legislation, occupies a
       superior position in determining public policy.” Reed v. Farmers Insurance Group, 188 Ill.
       2d 168, 175, 720 N.E.2d 1052, 1057 (1999).
¶ 68       It is clear the United States Supreme Court in Roper, Graham, and Miller has provided
       juveniles with more constitutional protection than adults. However, we disagree these
       decisions make the statutes previously discussed unconstitutional. Further, we recognize our
       supreme court in Miller stated it has never defined what kind of punishment constitutes cruel
       or degrading punishment or is so disproportionate to the offense that it shocks the moral sense
       of the community. Miller, 202 Ill. 2d at 339, 781 N.E.2d at 307-08. Our supreme court noted
       “[t]his is so because, as our society evolves, so too do our concepts of elemental decency and
       fairness which shape the ‘moral sense’ of the community.” Miller, 202 Ill. 2d at 339, 781
       N.E.2d at 308. It may be time for our supreme court to consider this important issue.
       However, based on the arguments made by defendant and the prior precedent of both this
       court and, more importantly, our supreme court, defendant has failed to overcome the strong
       presumption the statutes at issue in this case are constitutional.

¶ 69                              B. Effectiveness of Trial Counsel
¶ 70       We next address defendant’s argument her trial attorney’s representation was
       constitutionally deficient because he conceded her guilt of felony murder based on his
       misapprehension of the felony murder rule. Defendant argues trial counsel was also
       ineffective by failing (1) to impeach Riley with available text message records where he was
       communicating with other women and (2) to object to the State’s improper use of leading
       questions during its examination of Riley.
¶ 71       To hold an attorney’s representation constitutionally ineffective, we must first determine
       an attorney made errors so serious he was not functioning as counsel guaranteed by the sixth
       amendment to the United States Constitution. We must then also conclude defendant was
       prejudiced by those errors. Strickland v. Washington, 466 U.S. 668, 687 (1984). The

                                                 -13-
       attorney’s actions must be judged in the context of the entire trial. A defendant must
       overcome the presumption the actions criticized could be considered sound trial strategies
       under the circumstances of the case. Strickland, 466 U.S. at 689.

¶ 72                                 1. Attorney’s Concessions
¶ 73       We first address defendant’s argument her trial counsel was ineffective because of the
       concessions he made with regard to her guilt for possession of a stolen vehicle and robbery.
       According to defendant, because the murder was committed during the course of the robbery,
       her attorney, by conceding she was probably guilty of robbery, also conceded her guilt of
       felony murder because of his “fundamental misunderstanding” of the felony murder rule.
¶ 74       She argues when a defendant exercises her constitutional right to plead not guilty and
       chooses to have a jury trial, her attorney is obliged to develop a trial strategy consistent with
       her plea, holding the State to its heavy burden of proof. People v. Chandler, 129 Ill. 2d 233,
       244-45, 543 N.E.2d 1290, 1294-95 (1989). In Chandler, our supreme court stated a
       defendant’s trial counsel cannot concede a client’s guilt to the jury unless the record
       affirmatively shows the attorney did so based on a legitimate trial strategy and with the
       client’s knowing consent. Chandler, 129 Ill. 2d at 244-45, 543 N.E.2d at 1294-95. Further,
       the supreme court stated it is not a legitimate trial strategy to concede a client’s guilt based
       on a hope the jury will ignore the jury instructions it has sworn to follow and acquit a
       defendant out of sympathy. Chandler, 129 Ill. 2d at 248, 543 N.E.2d at 1296.
¶ 75       We do not find the record supports defendant’s argument her counsel did not understand
       the felony murder rule. In addition, based on the overwhelming evidence in this case, it is
       difficult to conceive of a legitimate trial strategy counsel could have implemented on
       defendant’s behalf other than the one he attempted.
¶ 76       The evidence against defendant was overwhelming. The State had numerous text
       messages from defendant to Riley detailing what they were going to do to Arnulfo, how they
       were going to do it, and what they were going to do afterward. The State also had Riley’s
       cooperation. Riley had entered a guilty plea and was a witness for the State. Riley detailed
       defendant’s involvement in the planning and commission of the crimes in question and her
       actions after Arnulfo’s death. In addition, the State had a videotaped interview of defendant
       confessing her involvement in the crimes.
¶ 77       We also find defendant’s reliance on Chandler is misplaced. Unlike in Chandler,
       defendant in the case sub judice decided to testify on her own behalf. She essentially conceded
       her guilt to robbery and possession of a stolen vehicle in front of the jury. We are not going
       to reverse a defendant’s conviction based on a concession made by her attorney when she
       essentially made the same concessions in her own testimony.
¶ 78       It appears defense counsel’s strategy was simple—try to keep defendant’s incarceration
       to a minimum. Considering the State’s evidence and his own client’s testimony, it appears
       defense counsel determined the best chance of accomplishing this strategy was to concede the
       obvious in the hopes the jury would believe defendant did not know Riley intended to kill
       Arnulfo. Regardless of the legal validity of the argument, this was defendant’s best chance at
       acquittal on the murder charges.

                                                 -14-
¶ 79        Unlike Chandler, the situation in this case is closer to that faced by our supreme court in
       People v. Shatner, 174 Ill. 2d 133, 673 N.E.2d 258 (1996). In Shatner, the supreme court
       distinguished its decision in Chandler, stating claims of ineffective assistance must be
       reviewed on a case-by-case basis and decided on the reasonableness of counsel’s conduct
       based on the facts of the particular case at the time of the conduct in question. Shatner, 174
       Ill. 2d at 147, 673 N.E.2d at 264. Our supreme court noted the finding of ineffectiveness in
       Chandler was not based solely on the defendant’s alleged failure to develop a theory of
       innocence. Shatner, 174 Ill. 2d at 147, 673 N.E.2d at 264. The court pointed out in Chandler
       it “observed that the defense counsel’s performance was deficient because he failed to cross-
       examine several key prosecution witnesses; cross-examined others in an extremely conclusory
       manner; and called no witnesses to testify, including defendant, even though counsel had
       asserted that defendant would do so during opening argument.” Shatner, 174 Ill. 2d at 147,
       673 N.E.2d at 264.
¶ 80        The supreme court contrasted the actions of the defense attorney in Shatner, finding
       counsel “aggressively cross-examined” nearly every prosecution witness and called witnesses
       on defendant’s behalf to attempt to discredit the State’s witnesses and bolster defendant’s
       credibility. The court noted:
            “Ultimately, it was the defendant’s own statements, both to the FBI and on the witness
            stand, and not the actions or strategy of his counsel, which undermined any claim of
            innocence that defendant may have had. If a defendant enters a not-guilty plea in the face
            of overwhelming evidence of his guilt, we are unwilling to find that his counsel was
            ineffective simply because he failed to contrive a leak-proof theory of innocence on
            defendant’s behalf. To do so would effectively require defense attorneys to engage in
            fabrication or subterfuge.” Shatner, 174 Ill. 2d at 148, 673 N.E.2d at 264.
       The court noted defense counsel tried to minimize his client’s admitted involvement in the
       robbery scheme and shift the blame for both the murder and robbery onto another person who
       voluntarily accompanied the defendant to the crime scene. Defense counsel “aggressively
       attacked the credibility of [this other person] and portrayed her as a calculating cocaine addict
       who seduced defendant into assisting her in a robbery during which she killed the victim.”
       Shatner, 174 Ill. 2d at 148, 673 N.E.2d at 265. The court stated:
            “It is apparent that defense counsel sought to convince the jury that defendant’s minimal
            involvement in the scheme warranted either a finding of innocence or a conviction for
            robbery only. While this strategy was risky, it was strategy nonetheless, and perhaps the
            only strategy which could have been seriously pursued given defendant’s admissible
            incriminating statements and the overwhelming evidence of his guilt. Defendant now
            contends that his trial counsel should have presented a reasonable doubt theory, i.e.,
            defendant played no role whatsoever in the crime which [the other person] perpetrated.
            However, it is arguable that that strategy would have been even less credible and less
            likely to succeed than the one his attorney actually pursued. Under the circumstances of
            this case, defense counsel’s performance was not deficient with respect to his proffered
            defense theory.” Shatner, 174 Ill. 2d at 148, 673 N.E.2d at 265.
¶ 81        The same reasoning applies to the facts in this case. While defense counsel’s strategy was


                                                 -15-
       risky and ultimately failed, it was still strategy. Defense counsel did his best to procure the
       jury’s sympathy for defendant. In so doing, he vigorously cross-examined Riley in an attempt
       to show defendant did not know Riley planned to murder Arnulfo. Given defendant’s
       testimony, it was the only reasonable strategy defense counsel could have seriously pursued.

¶ 82                              2. Impeachment With Text Messages
¶ 83       Riley testified he initially lied to investigators to protect defendant because he loved her.
       Defendant contends her counsel was ineffective for failing to impeach Riley with text
       messages he sent other women. However, defendant was not prejudiced by her attorney’s
       omission. The evidence against defendant was overwhelming. Defense counsel thoroughly
       cross-examined Riley regarding the discrepancies between his initial statement to the police
       and his trial testimony. The text messages Riley sent to other women simply would not have
       affected the jury’s verdict.
¶ 84       Defendant also argues counsel was ineffective by failing to object to the leading nature
       of the State’s direct examination of Riley with regard to the text messages. Over 2,000 pages
       of text messages were sent between Riley and defendant. Riley’s testimony was used to lay
       the foundation for their admission. By objecting to the leading nature of the State’s questions,
       defense counsel would run the risk of appearing obstructionist to the jury, especially here
       where it was a certainty the text messages were going to be admitted. Failure to object to the
       leading nature of the questions constitutes trial strategy, which is generally not subject to a
       claim of ineffective assistance of counsel. People v. Pecoraro, 144 Ill. 2d 1, 13, 578 N.E.2d
       942, 947 (1991). Moreover, because of the overwhelming evidence against defendant,
       including her own testimony, defendant cannot establish she was prejudiced when counsel
       failed to object to these leading questions. Had defense counsel objected, the State would have
       simply rephrased the questions. Defendant fails to show the jury would not have learned the
       substance of the text messages.

¶ 85                                     C. Verdict Forms
¶ 86       We next address defendant’s argument the trial court erred in refusing to tender separate
       jury instructions for each count of murder as charged. According to defendant, her attorney
       requested separate verdict forms for each theory of murder (i.e., knowing, intentional, strong
       probability, and felony murder), in case a question arose on appeal as to the counts on which
       the jury had found defendant guilty. In the trial court, the State argued the jury should only
       receive a general verdict form. The trial court agreed. The trial court later denied defendant’s
       motion for a new trial based on the lack of separate verdict forms.
¶ 87       Defendant cites People v. Smith, 233 Ill. 2d 1, 15, 906 N.E.2d 529, 537 (2009), for the
       proposition a trial court has no discretion to deny a request for separate verdict forms when
       a defendant is charged with knowing, intentional, strong probability, and felony murder based
       on the alleged murder of a single person when one of the counts could have more favorable
       consequences for the defendant. According to defendant, if the trial court refuses such a
       request, the general verdict form on appeal must be treated as a verdict on the count which
       most benefits defendant. See Smith, 233 Ill. 2d at 28, 906 N.E.2d at 544-45.

                                                 -16-
¶ 88       Defendant argues she was prejudiced by the trial court’s error because “the question of
       whether the jury would have found her guilty of felony murder alone affects three arguments
       on appeal.” According to defendant’s brief:
           “Argument IV asserts that the automatic application of truth-in-sentencing to minors who
           are convicted of felony murder by accountability violates the eighth amendment, and
           Argument III asserts that the automatic application of an adult sentencing range to such
           minors is unconstitutional. Prevailing on either of these arguments could subject
           [defendant] to less onerous sentencing provisions. The denial of separate verdict forms
           also undermines [defendant’s] ability to establish prejudice from trial counsel’s
           concession of guilt on the felony murder count, as set forth in Argument II. Having fought
           the tendering of separate verdict forms below, the State should not be allowed to benefit
           from the uncertainty created by their position on appeal. Thus, this court should assume
           for purposes of [defendant’s] arguments on appeal that the jury verdict in this case was
           for felony murder.”
       See Smith, 233 Ill. 2d at 9, 25, 906 N.E.2d at 534, 542-43. Regardless of whether the trial
       court erred on this issue, based on our holdings on the other issues, defendant cannot establish
       she was prejudiced by the verdict form used in this case.

¶ 89                                     D. Sentence Credit
¶ 90        Defendant also argues she should have received an additional six days of sentencing credit
       for time spent in custody in Tennessee between July 16 and 21, 2010. See 730 ILCS 5/5-4.5-
       100(b) (West 2010). The trial court only gave defendant credit for the period between July 22,
       2010, and March 17, 2011. The State concedes defendant is entitled to credit for these six
       days. The State points out an arrest warrant was issued in Illinois on July 15, 2010, for the
       offense of first degree murder. We accept the State’s concession. Detention in another state
       is to be credited against a defendant’s sentence if the detention in the other state is a result of
       the offense for which the defendant is sentenced. People v. Elder, 392 Ill. App. 3d 133, 138,
       910 N.E.2d 202, 206 (2009).

¶ 91                                   III. CONCLUSION
¶ 92       For the reasons stated, we affirm the trial court’s judgment as modified: the sentence is
       to be modified to give defendant presentence custody credit from July 16, 2010, to March 17,
       2011. Otherwise, the sentence remains unaltered. We direct the trial court to amend the
       sentencing order accordingly. As part of our judgment, we award the State its $75 statutory
       assessment against defendant as costs of this appeal.

¶ 93       Affirmed as modified; cause remanded with directions.

¶ 94       JUSTICE APPLETON, dissenting.
¶ 95       I respectfully dissent from the majority’s decision. While the majority disposition is well
       reasoned and consistent with existing statutory provisions, I find the mandatory transfer of 15-

                                                  -17-
      and 16-year-old juveniles to adult court is violative of the analysis set forth in Miller v.
      Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012). I agree that many juveniles in the 15- to 16-
      year-old age group charged with a felony offense rightly deserve to have their crimes
      adjudicated as if they were, chronologically, adults. However, it is beyond peradventure that
      not all juveniles are the same. Each 15- or 16-year-old evinces a maturity based, not on
      chronological age, but rather on his or her young life experiences, development, and familial
      influences.
¶ 96      In Miller, the Supreme Court looked to two of its decisions: Roper v. Simmons, 543 U.S.
      551 (2005), and Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010), which concluded
      that the eighth amendment forbade the imposition of a death sentence on a juvenile (Roper,
      543 U.S. at 574) and, subsequently, a sentence of life imprisonment without parole on a
      juvenile who had not committed homicide (Graham, 560 U.S. at ___, 130 S. Ct. at 2034).
¶ 97      The Supreme Court said in Miller, 567 U.S. at ___, 132 S. Ct. at 2458:
              “Roper and Graham emphasized that the distinctive attributes of youth diminish the
          penological justifications for imposing the harshest sentences on juvenile offenders, even
          when they commit terrible crimes. ***
                                               ***
              *** [Any life-without-parole sentence imposed on a juvenile] contravenes Graham’s
          (and also Roper’s) foundational principle: that imposition of a State’s most severe
          penalties on juvenile offenders cannot proceed as though they were not children.”
¶ 98      I find that these cases pose serious constitutional risks to the viability of Illinois’s
      mandatory transfer of juvenile offenders to adult court and, consequently, to adult prison
      sentences. While there are juvenile offenders who may, based on the totality of the
      circumstances, be eligible for adult prosecution, an automatic transfer provision based on age
      and offense alone, without consideration of the wide variance in the maturity, sophistication,
      intelligence, and social adjustment of any particular juvenile offender, cannot pass
      constitutional muster. I would argue that the circumstances of the case before us stand as an
      example of the fallacy of the mandatory transfer of all juveniles aged 15 and 16 to adult court,
      which under the reasoning of Roper and Miller cannot stand.
¶ 99      To be sure, our legislature recognized the increase in violent, homicidal crime committed
      by juvenile offenders and sought to address that problem. I believe it is the blanket transfer
      based on age that is the flaw in the legislature’s response. Such decisions are better made on
      the circumstances of the offender as well as the offense. In that sense, we should look to both
      the crime and the nature of the criminal.
¶ 100     Maria Pacheco was a good student working at her family’s restaurant until, at age 15, she
      met and fell in what she believed was love with the 20-year-old codefendant, Riley. It would
      appear that her nuclear family was a close one. Riley’s provenance is unknown, but we do
      know he had left several foster homes and was living in some sort of a group home. Riley
      engaged in a sexual relationship with Maria (a crime in and of itself). Maria was apparently
      so smitten that she was willing to leave her family and run away with Riley. In order to garner
      the funds necessary for their elopement, an agreement was made to rob Maria’s uncle. While
      there was some evidence that Maria was disturbed by the uncle’s touching her and her

                                                -18-
      younger sister, the degree of that unwanted contact is unknown.
¶ 101     To be sure, Maria helped plan the assault, obtained the necessary blunt instruments for the
      assault on the victim, and engineered Riley’s entrance into the house. Because of that
      participation, there is no doubt that Maria is guilty of felony murder. However, it is no stretch
      to compare the service as a lookout on the part of Kuntrell Jackson in the comparison case of
      Miller to the assistance rendered by defendant here. The only other evidence of Maria’s actual
      participation in the assault on the victim was Riley’s testimony that he “sensed” Maria’s
      presence during the assault. Maria denied being present in the room where the assault
      occurred.
¶ 102     I find that, under the reasoning of Miller and Graham, the mandatory transfer of 15- and
      16-year-old juveniles to adult court is constitutionally prohibited. I would reverse the
      conviction of defendant and require the trial court to make an individualized assessment of
      defendant’s capacity and culpability with regard to the genesis, planning, and commission of
      the instant offense.




                                                 -19-
