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                              Appellate Court                            Date: 2019.03.26
                                                                         15:17:45 -05'00'




                  People v. Lopez, 2019 IL App (3d) 170798



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JAMIE L. LOPEZ, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-17-0798



Filed             January 4, 2019



Decision Under    Appeal from the Circuit Court of Rock Island County, No. 94-CF-782;
Review            the Hon. Richard A. Zimmer, Judge, presiding.



Judgment          Affirmed.


Counsel on        Jeffrey J. Neppl and Theresa L. Sosalla, of Neppl & Zhang Law Firm
Appeal            LLC, of Rock Island, for appellant.

                  John L. McGehee, State’s Attorney, of Rock Island (Patrick Delfino,
                  David J. Robinson, and Gary F. Gnidovec, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             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     based on our order in People v. Lopez, No. 3-95-0421 (1996) (unpublished order under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.
¶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

                                                -2-
     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.
¶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. 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

                                                -3-
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.
    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 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,

                                    -4-
               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.”
       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 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.

                                                   -5-
                   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 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
               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.[’]



                                                   -6-
                  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.”

¶ 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 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


                                                  -7-
                   “[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 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; (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.


                                                  -8-
               “[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 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:
                   “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.”

                                                   -9-
       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 (citing 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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