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                                Appellate Court                         Date: 2019.02.05
                                                                        14:03:40 -06'00'



                  People v. Pearson, 2018 IL App (1st) 142819



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            DeANTHONY PEARSON, Defendant-Appellant.



District & No.     First District, Sixth Division
                   Docket No. 1-14-2819



Filed              September 21, 2018



Decision Under     Appeal from the Circuit Court of Cook County,                    No.
Review             10-CR-19295(02); the Hon. Luciano Panici, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Patricia Mysza, and Robert N. Markfield, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Mary P. Needham, and Sarah L. Simpson, Assistant State’s Attorneys,
                   of counsel), for the People.



Panel              JUSTICE HARRIS delivered the judgment of the court, with opinion.
                   Justices Pierce and Griffin concurred in the judgment and opinion.
                                               OPINION

¶1       Defendant, DeAnthony Pearson, appeals his conviction after a jury trial of attempted first
     degree murder and attempted armed robbery and his sentence to consecutive terms of 45 years’
     and 5 years’ imprisonment. On appeal, defendant contends (1) he is entitled to a new trial
     where the State’s expert witness stated that the fingerprint identification results were verified
     by a nontestifying examiner, which constitutes inadmissible hearsay, (2) his conviction for
     attempted first degree murder should be reduced to aggravated battery with a firearm where the
     State failed to prove beyond a reasonable doubt that he had an intent to kill, and (3) a new
     sentencing hearing is required where his aggregate sentence of 50 years’ imprisonment
     amounts to a de facto life sentence without consideration of the unique characteristics of his
     youth and violates the eighth amendment and the proportionate penalties clause of the Illinois
     Constitution.1 For the following reasons, we affirm.

¶2                                          JURISDICTION
¶3       The trial court sentenced defendant on August 21, 2014. That same day, he filed a notice of
     appeal. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois
     Constitution (Ill. Const. 1970, art. VI, § 6), and Illinois Supreme Court Rules 603 and 606 (eff.
     Feb. 6, 2013), governing appeals from a final judgment of conviction in a criminal case entered
     below.

¶4                                        BACKGROUND
¶5       Defendant, along with two codefendants who are not parties to this appeal, was charged
     with attempted first degree murder, aggravated battery with a firearm, and attempted armed
     robbery in connection with an incident that occurred on September 29, 2010. Defendant and
     his codefendants had separate trials with separate juries. Defendant was 15 years old at the
     time of the incident.
¶6       At defendant’s trial, Amir Muhammed Azhar testified that on September 29, 2010, he was
     working alone at the Marathon gas station at 711 South Halsted Street in Chicago, Illinois.
     Around 8:15 p.m. that evening, he was at the cash register behind a bulletproof glass window
     that could only be opened by the cashier. Amir had wiped down both sides of the glass window
     with Windex, as was routine for whoever was working at the window. No one had touched or
     leaned on the glass prior to the incident. Beneath the glass was a drawer which Amir used to
     transfer money and items to customers.
¶7       Codefendant Willie Collins entered the store and asked for a single cigarette. Keeping the
     bulletproof glass window closed, Amir gave him a cigarette through the drawer beneath the
     glass window. Collins then asked Amir to light the cigarette for him. To do so, Amir opened
     the bulletproof window. As Collins conversed with Amir, Amir tried to close the window.


         1
          Defendant also alleged that he is entitled to a discretionary transfer hearing in juvenile court
     because, during the pendency of his appeal, the legislature raised the age at which a juvenile who
     commits aggravated battery with a firearm can be transferred to the circuit court from 15 to 16 years
     old. However, he concedes that People v. Hunter, 2017 IL 121306, decided after he filed his opening
     brief, held that these amendments do not apply retroactively to cases pending on direct appeal.

                                                   -2-
       Collins, however, “kept asking [him] about things which are behind the counter” and Amir
       kept the window open so he could answer his questions.
¶8         At this time, another person entered the store. Amir noted that he had his face covered
       except for his eyes, and he had a gun in his hand. Amir tried to close the bulletproof window,
       but the man put his hand on the window so it would not close. While they struggled, the man
       fired his gun at Amir from 1 to 1½ feet away, striking him in the chest. Amir fell and used his
       cell phone to call 911. He soon lost consciousness and awoke three days later in the hospital. A
       surveillance camera recorded the events in the store, and the video was entered into evidence.
¶9         The video showed a man coming into the store wearing a red bandana over his head and a
       black scarf around his face, a purple hooded sweatshirt with a yellow emblem, and green pants.
       The man also carried a handgun. He pushed Collins aside and pointed his gun at Amir. The
       man put his left hand on the glass partition to prevent Amir from closing the window, and after
       struggling with Amir, the man fired at him. Another masked man entered, wearing a navy
       sweatshirt with a white hood and yellow print with “1947” on the front. The man with the gun
       put his hand through the open window to bang on the cash register below but the register would
       not open. Both men fled the store.
¶ 10       Keiara Boyd testified that in September 2010 she was dating and living with codefendant
       Armoni Allen. Collins lived across the street and would visit their house “[e]very now and
       then.” Keiara also knew defendant. On September 29, 2010, around 8 p.m., defendant, Collins,
       and Allen were at Allen’s residence. Keiara noticed that defendant had a gun and he was
       “playing with it.” When she told him she “didn’t play with guns,” he stopped pointing it at her.
       Keiara and Allen then went upstairs, and while they were upstairs, Keiara heard defendant yell
       for Allen to “come on.” Allen then left the room and he, Collins, and defendant left the house
       together.
¶ 11       Approximately 5 to 10 minutes later, Allen returned alone but was soon joined at the house
       by defendant and Collins. Everyone was in the same room and defendant, who had the gun in
       his hands, stated that he shot someone but he did not “know where he shot the man.” Allen told
       defendant and Collins to leave, but defendant left the gun in the room. Keiara noticed it and
       told Allen to tell defendant to take the gun with him. Defendant returned and took the gun with
       him. After defendant and Collins left the house, Allen received a call from defendant telling
       him to look out his back window toward the Marathon gas station and let him know what was
       happening there. Throughout the night, defendant called and asked Allen to look out the
       window and tell him what he saw.
¶ 12       Detective Stepich testified that he responded to a shooting at the Marathon gas station on
       711 South Halsted on September 29, 2010, around 8:20 p.m. He recovered surveillance video
       and followed up on a 911 call that was made by a witness. Detective Stepich learned that
       Collins was the person who made the 911 call, and he was brought in for questioning.
       Detective Stepich testified that in viewing the footage, he saw that Collins “was in the store, he
       got the victim to open up the bulletproof glass window. He stuck his hand through the opening
       a few times, it appeared, and they got—the gentleman wasn’t trying to close it, but it seemed
       like he was trying to keep the window open when the shooter and the other suspect came
       inside, and he shot, and he fell on the ground.” After speaking with Collins, Detective Stepich
       went to Allen’s house and arrested Allen. He then went to defendant’s residence and was given
       permission to search the house. He recovered a pair of shoes that appeared to be the ones worn
       by one of the offenders in the video and a green cell phone that Collins appeared to be holding

                                                   -3-
       at the gas station store. After a search warrant was issued on Allen’s house, Detective Stepich
       recovered a black Hi-Point 9-millimeter semiautomatic handgun and clothing that appeared to
       be clothes worn by the shooter when he entered the store.
¶ 13        Detective Deel processed the crime scene, taking fingerprints from the bulletproof glass
       window and recovering discharged cartridge casings. Detective Deel testified that with his
       naked eye he could see the fingers and palm impression from a left hand on the window. He
       saw no other prints on the window. Detective Murtagh received this evidence for processing,
       and Officer Estock took fingerprints of defendant, Allen, and Collins.
¶ 14        Karen Heard also testified for the State. She stated that she is a forensic scientist
       specializing in latent print examination, with a bachelor’s and master’s degree in biology. She
       also completed a two-year training program with the Illinois State Police in latent print
       examination. Heard stated that she had been previously qualified as an expert witness 43 times
       in various state courts as well as in federal court. Defense counsel did not object to the trial
       court’s finding that Heard is “an expert in the latent print examination area.”
¶ 15        Heard testified that she examined the prints taken from the window (latent impressions)
       and compared them to fingerprint standards taken from defendant at the police station. She
       discussed the characteristics she looks for in her examinations and defined the terms pores,
       ridges, grooves, creases, and furrows for the jury. Using “magnifiers, one over the latent
       impression and one over the very first finger entered on the card,” Heard made comparisons in
       this manner with all 10 finger print standards. She compared features “such as any creases,
       bifurcations, where the ridges will split, ending ridges, curvature, thickness,” and “saw that
       those things were present in the fingerprint standard” of defendant. She determined, within a
       reasonable degree of scientific certainty, that the fingerprints and palm print found on the
       bulletproof glass window matched defendant’s fingerprint standards. After making her
       identifications, she gave the lifts and the fingerprint and palm print standards to another
       examiner, Holly Heitzman. When Heard was asked what she learned from Heitzman’s
       examination, defense counsel objected “to what she learned.” The court overruled counsel’s
       objection, and Heard responded that Heitzman “concurred with the verification and the correct
       markings.” Heitzman did not testify at trial. Heard also noted that glass is an ideal surface for
       lifting prints because it is flat and smooth, and fingerprint residue does not get absorbed into
       the surface.
¶ 16        Jeffrey Parise, an expert in the field of firearm identification, determined that both the fired
       cartridge case and discharged cartridge came from the recovered handgun.
¶ 17        Dr. David McElmeel treated Amir at Christ Hospital for multiple gunshot wounds. He
       stated that when he arrived at the hospital, Amir was not conscious or breathing on his own. A
       gunshot wound to Amir’s upper chest area caused injuries to his right lung, bronchial arteries,
       and lower rib. There were five injuries to Amir’s right lung and the bullet fractured one of his
       lower ribs. He also suffered a gunshot wound in his right arm. Dr. McElmeel testified that
       Amir lost a third of his blood supply due to his injuries and had to receive transfusions from an
       outside hospital as well as from Christ Hospital during the surgery. Dr. McElmeel stated that if
       Amir had not received the emergency surgery, he would have died.
¶ 18        The State rested, and defendant moved for a directed verdict, which the trial court denied.
       Testifying for the defense, defendant’s grandfather, Michael Pearson, stated that he met with
       Heard and asked her to explain the procedures and techniques she used in her identifications.
       She told him that she found two points of comparisons with defendant’s prints, but she could

                                                     -4-
       not point out the comparisons on the copy of the prints she showed him. On cross-examination,
       Pearson stated that the print looked like a photocopy and the picture was blurry.
¶ 19       Leisha Allen, codefendant Allen’s mother, testified that she and Keiara visited Allen’s
       lawyer on October 3, 2010. The lawyer asked Keiara what she knew about the incident at the
       Marathon gas station, and she replied that she did not know anything nor had she heard or seen
       anything about the incident.
¶ 20       The defense rested. During deliberations, the jury sent back three questions: (1) was there
       blood splatter on defendant, (2) was there gun residue on defendant, and (3) where is the bullet
       from Amir Muhammad’s body. The court responded that the jury had all the information it
       needed and to keep deliberating. A few minutes later, the jury returned a verdict of guilty on all
       counts. Defendant filed a motion for a new trial which the trial court denied.
¶ 21       At the sentencing hearing, defense counsel reminded the court that defendant was 15 years
       old when the shooting occurred. Defendant’s presentence investigation report (PSI) noted that
       his father worked in the family business and his mother was a caregiver in a nursing home.
       Defendant lived with his parents and three younger siblings and did not drink. He was not a
       member of a gang, and he attended his grandfather’s church. He also participated in a boxing
       club sponsored by a ministry group. Defendant’s mother “warmly expressed her extreme
       concern and love and support for her son.”
¶ 22       In aggravation, the State presented the testimony of Arturo Robles that Allen gave a
       handwritten statement about his participation with defendant in the shooting incident. Allen
       stated that it was defendant’s idea to rob the Marathon gas station. Defendant needed a second
       person to hold open the door for him. The plan was for one person to hold the door open and for
       the other to put the gun in the clerk’s face to rob him. Allen put a wood block in the door to
       hold it open, and defendant pointed a gun at the clerk. Defendant ordered the clerk to open the
       cash register and the safe. They netted $150 and some cartons of cigarettes in the robbery. The
       State also played a videotape of Collins describing the conversations he had with defendant in
       which defendant admitted to robbing the gas station and receiving money and cigarettes.
       Robert Lee, a management analyst for the Cook County Juvenile Temporary Detention Center,
       testified that defendant had 13 violations on his major rule violation report between October
       21, 2010, and December 2, 2011. Three violations were in the most serious, “extraordinary
       circumstances” category, and two of them involved blind-sided attacks. The hearing officers
       found defendant guilty of the allegations. Lee acknowledged that he did not witness any of
       these violations.
¶ 23       Before sentencing defendant, the trial court stated that it heard the evidence and must
       balance the aggravating and mitigating factors under the statute. It noted the mitigating factors
       as expressed by defendant’s family. The court found that from the letters, “defendant comes
       from a very loving family and a very caring family” and hoped that once he completes his
       sentence “that love will carry on to him.” It also noted defendant’s “very minor” criminal
       history, in which he was “placed on supervision and completed that satisfactory [sic].” In
       aggravation, defendant caused serious bodily harm to a person when he shot Amir in the chest.
       The court stated that Amir “[a]lmost lost his life” and endured a long period of rehabilitation.
       The court also noted defendant’s conduct while in custody which showed that he “has a
       problem with authority.” It hoped that the sentence would deter others because then, “the
       sentence will be successful in preventing harm to another individual.” The court sentenced
       defendant to 20 years’ imprisonment for attempted first degree murder, and with the

                                                   -5-
       mandatory firearm enhancement, defendant’s sentence totaled 45 years, which “must be
       served at 85 percent.” For attempted armed robbery, the trial court sentenced defendant to a
       consecutive 5 year term to “be served at 50 percent.” Defendant filed this timely appeal.

¶ 24                                            ANALYSIS
¶ 25                                   I. Heard’s Hearsay Testimony
¶ 26       Defendant contends he was denied a fair trial when the trial court admitted Heard’s
       testimony that her fingerprint identification results were verified by Heitzman, who did not
       testify. Defendant argues that this testimony was hearsay and also violated his right to confront
       witnesses against him because he was unable to cross-examine Heitzman. Defendant concedes
       that he did not include this error in a posttrial motion but requests that this court consider the
       issue as plain error. Under the plain error doctrine, a reviewing court can consider unpreserved
       error when a clear or obvious error occurred and (1) the evidence is so closely balanced that the
       error alone threatened to tip the scales of justice against the defendant or (2) the error is so
       serious that it affected the fairness of defendant’s trial and challenged the integrity of the
       judicial process. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The first step in a plain
       error analysis is to determine whether error occurred at all. Id.
¶ 27       After Heard concluded that the latent prints taken from the window matched the fingerprint
       and palm print standards of defendant, she testified that she gave the lifts and standards to
       another examiner, Holly Heitzman, who “concurred with the verification and the correct
       markings.” Heitzman did not testify at defendant’s trial. Therefore, this statement was hearsay
       in that Heitzman’s verification was an out-of-court statement and it was offered to prove the
       truth of the matter asserted. See People v. Smith, 256 Ill. App. 3d 610, 615 (1994).
       Furthermore, Heard’s hearsay testimony was inadmissible because her statement indicated that
       a nontestifying party identified defendant as the perpetrator of a crime. See id.
¶ 28       Our inquiry does not end here, however. The errors alleged by defendant—the improper
       admission of hearsay testimony and a confrontation clause violation—are not of such a serious
       character that they challenge the integrity of the judicial process. See People v. Prince, 362 Ill.
       App. 3d 762, 777 (2005) (finding that the erroneous admission of hearsay evidence was subject
       to harmless error analysis); People v. Patterson, 217 Ill. 2d 407, 424-27 (2005) (holding that a
       confrontation clause violation based on the improper admission of testimony is a trial error
       subject to harmless error review). As a result, “defendant must meet his burden to show that the
       error was prejudicial.” Piatkowski, 225 Ill. 2d at 566. Any error in admitting Heard’s testimony
       is harmless “if there is no reasonable possibility that the verdict would have been different if
       the hearsay had been excluded.” Prince, 362 Ill. App. 3d at 777.
¶ 29       Here, even if the trial court had excluded Heard’s hearsay testimony, her testimony about
       the identification process and her own analysis and conclusions was properly admitted. Heard
       testified as to her education and training and her extensive experience in latent print
       examination. Defense counsel did not object to her as “an expert in the latent print examination
       area.” Furthermore, Heard provided a sufficient foundation for admitting her testimony by
       explaining how she reached her conclusions in a manner that allowed for scrutiny of her
       analysis on cross-examination. See People v. Mitchell, 2011 IL App (1st) 083143, ¶ 25. She
       testified that she examined the latent prints taken from the window and compared them to
       fingerprint standards taken from defendant at the police station. She noted that glass is an ideal
       surface for lifting prints because it is flat and smooth and fingerprint residue does not get

                                                    -6-
       absorbed into the surface. She discussed the characteristics she looks for in her examinations
       and defined the terms pores, ridges, grooves, creases, and furrows for the jury. Using
       magnifiers, Heard compared features “such as any creases, bifurcations, where the ridges will
       split, ending ridges, curvature, thickness” and “saw that those things were present in the
       fingerprint standard” of defendant. She determined, within a reasonable degree of scientific
       certainty, that the fingerprints and palm print found on the bulletproof glass window matched
       defendant’s standards. Given this admissible testimony, the improper admission of Heard’s
       hearsay testimony was harmless since “there is no reasonable possibility that the verdict would
       have been different if the hearsay had been excluded.” Prince, 362 Ill. App. 3d at 777.
¶ 30       Defendant disagrees, arguing that he was prejudiced by the hearsay testimony because
       “Heard’s identification was incomplete and inadequate without Heitzman’s findings,” and the
       remaining evidence against him was weak. Specifically, he points out that no forensics
       evidence tied him to the clothing found by police or to the gun, and Keiara’s testimony that she
       saw defendant with a gun immediately before and after the shooting and heard him make
       incriminating statements contradicted her statement to codefendant Allen’s lawyer that she did
       not know anything.
¶ 31       However, although no forensics evidence linked defendant to the clothing of the shooter or
       gun, the surveillance video showed that the shooter put his left hand on the glass window to
       keep it open before shooting Amir. Heard’s admissible testimony established that the latent
       prints taken from the window matched defendant’s print standards. Even if Heard’s
       identification was not verified by a second examiner in accordance with routine procedure,
       “[i]ssues concerning the quality of the testing process itself, such as laboratory protocol and the
       manner in which it was followed, [and] quality control measures *** are matters that go to the
       weight of the evidence, not its admissibility.” People v. Johnson, 318 Ill. App. 3d 281, 287
       (2000). Defendant’s counsel had ample opportunity to cross-examine Heard on her
       methodology and analysis before the jury. It is the function of the jury to assess the credibility
       of witnesses, the weight to be given their testimony, and to resolve conflicts in the evidence.
       People v. Tenney, 205 Ill. 2d 411, 428 (2002). Likewise, defense counsel cross-examined
       Keiara on her conflicting testimony, and the jury had the opportunity to assess her credibility
       and weigh her testimony accordingly. From this evidence, the jury found defendant guilty of
       attempted murder. We find that defendant was not prejudiced by the erroneous admission of
       Heard’s hearsay testimony.

¶ 32                                             II. Intent to Kill
¶ 33       Defendant next contends that his conviction of attempted first degree murder should be
       reduced to aggravated battery with a firearm where the State failed to prove his intent to kill.
       “It is well established that, to obtain a conviction for attempt, the State must prove that the
       defendant intended to commit a specific offense.” People v. Terrell, 99 Ill. 2d 427, 431 (1984).
       Thus, for the State to obtain a conviction for attempted murder, it must prove defendant’s
       intent to kill beyond a reasonable doubt. People v. Ephraim, 323 Ill. App. 3d 1097, 1110
       (2001). The State need not show that defendant expressed an intent to kill; rather, intent can be
       shown by evidence of the surrounding circumstances and the character of the assault. Id.
       Although the firing of a gun, without more, “is generally not sufficient to prove a specific
       intent to kill,” the firing of a gun at someone supports the conclusion that the shooter acted with
       an intent to kill. Id.; see also People v. Smith, 258 Ill. App. 3d 1003, 1027 (1994) (finding that

                                                    -7-
       an intent to kill can be inferred from “firing a gun at a person because the natural tendency of
       such an act is to destroy another’s life”). It is the jury’s function to determine whether
       defendant had a specific intent to kill. Ephraim, 323 Ill. App. 3d at 1110.
¶ 34        At trial, the State presented evidence that Amir was working behind the glass window
       when Collins entered the store. He purchased a cigarette and Amir gave it to him through the
       drawer beneath the glass window. Amir opened the window when Collins asked him to light
       the cigarette. Defendant then entered the store with his face covered except for his eyes, and he
       pointed a gun at Amir. Amir tried to close the bulletproof window, but defendant put his left
       hand on the window so it would not close. They struggled and then defendant fired his gun at
       Amir from one to one and a half feet away, striking Amir in the chest. Video from a
       surveillance camera also showed this sequence of events. From this evidence, a reasonable jury
       could infer that defendant intended to shoot Amir at close range in his effort to keep the
       window open and gain access to the cash register, “ ‘the direct and natural tendency of which
       [was] to destroy another’s life.’ ” See id. (quoting People v. Migliore, 170 Ill. App. 3d 581, 586
       (1988)). As such, the State proved defendant’s intent to kill beyond a reasonable doubt and
       reduction of defendant’s conviction to aggravated battery with a firearm is not warranted.
¶ 35        Defendant, however, argues that the evidence does not support a specific intent to kill
       because he could have killed Amir if he had so desired. He cites to People v. Mitchell, 105 Ill.
       2d 1 (1984), and People v. Henry, 3 Ill. App. 3d 235 (1971), as support.
¶ 36        In Mitchell, the defendant had beaten her 16-month-old daughter over the course of two
       days because she was angry and frustrated with her partner after an argument and because the
       child was “ ‘not minding and was getting into cupboards.’ ” Mitchell, 105 Ill. 2d at 7-8. When
       her daughter lost consciousness, the defendant placed a cool cloth on the child’s head and then
       took her to the hospital where she was treated for her severe injuries. Id. at 8. The court found
       that although the defendant intended to strike the child, the circumstances of the beating and
       the defendant’s explanations were “not consistent with an intent to murder.” Id. at 10. The
       court explained that the defendant had “ample opportunity” to do so if she had wanted to kill
       her child and her actions in applying a cool cloth to her daughter’s head and taking her to the
       hospital did not support such an intent. Id.
¶ 37        In Henry, the defendant acknowledged that he shot his gun but claimed that he shot in the
       air and not at the police car. Henry, 3 Ill. App. 3d at 237. Although two of the officers in the car
       stated that the defendant shot at the car, one of these officers acknowledged that the flashes he
       observed could have come from a gun held at a right angle to the car or pointed straight up in
       the air. Id. at 238-39. The other two officers in the car did not testify that defendant shot at the
       car. Id. at 238. At the time of the shooting, there was violence in the streets and the court noted
       that the defendant “could have apprehended danger.” Id. Given these circumstances and the
       testimony presented at trial, the court found “the State’s evidence failed to establish that the
       shots were fired with an intent to kill.” Id.
¶ 38        Mitchell and Henry are inapposite. Unlike the circumstances in Mitchell, Amir was shot
       with a gun, not beaten. The act of firing a gun at a person supports a finding that defendant
       acted with an intent to kill. Ephraim, 323 Ill. App. 3d at 1110. Henry is distinguishable because
       the evidence here unequivocally shows that defendant pointed a gun at Amir and shot him in
       the chest. From such conduct, it can be inferred that defendant intended to commit “the act of
       firing a gun at a person” and “the natural tendency of such an act is to destroy another’s life.”
       Smith, 258 Ill. App. 3d at 1027. The fact that Amir did not die is irrelevant. Amir sustained

                                                    -8-
       severe injuries to his right lung and ribs from the shooting. Dr. McElmeel testified that Amir
       lost a third of his blood supply and stated that if Amir had not received the emergency surgery,
       he would have died. Only through the skill of physicians treating Amir, and great fortune that
       he recovered from his injuries, did defendant escape a charge of murder.
¶ 39       Defendant also argues that the shooting was an impulsive act resulting from his young age
       and poor judgment, and notes that neither of his codefendants were found accountable on the
       attempted murder charge. Defendant provides no analysis, nor does he cite to any authority, to
       support his implication that he can be found guilty of attempted murder only if his
       codefendants were found guilty of that offense on a theory of accountability. See Illinois
       Supreme Court Rule 341(h)(7) (eff. May 25, 2018) (requiring appellant’s brief to put forth his
       contentions, “and the reasons therefor, with citation of the authorities and the pages of the
       record relied on”). Nonetheless, the fact that different juries at separate trials found his
       codefendants not guilty of the attempted murder charge does not necessarily indicate that the
       evidence supporting defendant’s conviction of attempted murder was insufficient. See People
       v. Sims, 374 Ill. App. 3d 231, 256 (2007) (noting that because triers of fact may differ in
       resolving factual disputes and credibility determinations, “where codefendants are tried
       separately before different triers of fact, the acquittal of one codefendant has no bearing on the
       guilt of [another] codefendant, regardless of the nature of the evidence”).
¶ 40       As for defendant’s argument that the shooting resulted from his impulsiveness and poor
       judgment, rather than an intent to kill, we note that the jury was aware of defendant’s young
       age when he committed the offense. It is the jury’s responsibility to weigh the evidence and
       draw reasonable inferences therefrom. People v. Jackson, 232 Ill. 2d 246, 281 (2009). A
       reviewing court will not reverse a conviction unless the evidence is so improbable or
       unsatisfactory “ ‘as to justify a reasonable doubt of the defendant’s guilt.’ ” Id. (quoting People
       v. Campbell, 146 Ill. 2d 363, 375 (1992)). Furthermore, in considering the evidence the jury “is
       not required to disregard inferences which flow normally” from that evidence, nor must it
       “search out all possible explanations consistent with innocence and raise them to a level of
       reasonable doubt.” Id. As discussed above, the evidence presented at trial supports the jury’s
       finding beyond a reasonable doubt that defendant had an intent to kill.

¶ 41                                         III. Sentencing
¶ 42       Defendant’s final contention is that his aggregate sentence of 50 years’ imprisonment
       violates the eighth amendment and the proportionate penalties clause of the Illinois
       Constitution.2 Defendant argues that his sentence violates the eighth amendment because it is
       a de facto life sentence and was imposed without consideration of the unique characteristics of
       his youth as required by Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.
       Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016).

           2
             Defendant notes that “[i]n light of the 85% service requirement for attempt murder, he is not
       eligible for parole until November 19, 2048, one month before his 54th birthday.” The State also states
       in its brief that defendant will be eligible for release at age 53. Our calculations, however, indicate that
       defendant will be 55 years old when he is eligible for release, after taking into account defendant’s
       consecutive sentence of five years’ imprisonment for attempted armed robbery to be served at 50%.
       Whether he will be 53 or 55 years old does not affect our determination. Thus, we consider this issue
       based on defendant being 55 years old when he is eligible for release.

                                                        -9-
¶ 43        This issue arises as a result of those recent decisions by the United States Supreme Court
       regarding the constitutionality of mandatory life sentences imposed upon juvenile defendants.
       In Miller, the Supreme Court determined that “children are constitutionally different from
       adults for purposes of sentencing” due to their “diminished culpability and greater prospects
       for reform.” Miller, 567 U.S. at 471. The court noted that these distinctive characteristics of
       youth diminish a juvenile’s culpability, and therefore diminish the “penological justifications”
       for imposing life without parole on juvenile defendants. Id. at 472. It concluded that a
       mandatory sentence of life without parole posed “too great a risk of disproportionate
       punishment” and required that before imposing such a sentence, the sentencing judge consider
       “how children are different, and how those differences counsel against irrevocably sentencing
       them to a lifetime in prison.” Id. at 479-80. In Montgomery, the Supreme Court determined that
       Miller “established that the penological justifications for life without parole collapse in light of
       ‘the distinctive attributes of youth,’ ” which is a “substantive rule of constitutional law” to be
       applied retroactively. Montgomery, 577 U.S. at ___, 136 S. Ct. at 734.
¶ 44        Miller and Montgomery, however, left important issues for courts to address. For example,
       our supreme court has determined that a sentence of aggregate terms of imprisonment can be
       considered the same as a mandatory life sentence; therefore, the constitutional limitations
       placed on juvenile sentencing in Miller and Montgomery can apply to such terms of
       imprisonment as well. See People v. Reyes, 2016 IL 119271, ¶¶ 9-10 (per curiam) (sentencing
       a juvenile offender to a legislatively mandated sentence of 97 years “is the functional
       equivalent of life without the possibility of parole” and violates the eighth amendment). This
       conclusion logically flows from the findings in Miller and Montgomery that a sentence of a
       lifetime in prison for a juvenile defendant, without consideration of “how children are
       different, and how those differences counsel against irrevocably sentencing them to a lifetime
       in prison,” is unconstitutional. Miller, 567 U.S. at 480. In determining the constitutionality of
       juvenile sentences in this regard, there is no substantive difference between a mandatory
       aggregate sentence of 97 years in prison, to be served almost in its entirety, and a sentence of
       mandatory life in prison. In both cases, the juvenile defendant will spend the rest of his life in
       prison with no possibility of parole in his lifetime.
¶ 45        From this determination stems the thornier issue of what term-of-years sentence can be
       considered a de facto life sentence, the question before us here. Understandably, courts are
       generally reluctant to make a legal determination of a juvenile’s likely lifespan, which would
       include considerations of societal factors and policy that are best addressed by the legislature.
       See People v. Jackson, 2016 IL App (1st) 143025, ¶ 57; People v. Evans, 2017 IL App (1st)
       143562, ¶ 15; People v. Rodriguez, 2018 IL App (1st) 141379-B, ¶ 74 (finding that appellate
       courts enter dangerous territory in attempting to determine a de facto life sentence “based on
       actuarial data specific to the defendant, including race, ethnicity, gender, and other social
       factors bearing on an individual’s life expectancy”). In fact, the legislature could bypass this
       issue by requiring all juvenile offenders to be considered for parole after a term of years that
       would put the juvenile’s age well below the range of life expectancy (e.g., 25 years).
       Montgomery, 577 U.S. at ___, 136 S. Ct. at 736. However, since our legislature has not yet
       enacted such legislation, our courts are left to ascertain whether a juvenile’s sentence is a
       de facto life sentence.
¶ 46        This determination is straight-forward where the sentence is so lengthy that no one can
       question its survivability. See Reyes, 2016 IL 119271 (97-year sentence); People v. Morris,


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       2017 IL App (1st) 141117 (100-year sentence); People v. Nieto, 2016 IL App (1st) 121604
       (78-year sentence). The determination is more problematic where the survivability of a
       sentence is not readily apparent. For example, this court in People v. Buffer, 2017 IL App (1st)
       142931, ¶ 62, appeal allowed, No. 122327 (Ill. Nov. 22, 2017), determined that a sentence
       where a juvenile would be discharged at 69 years old was a de facto life sentence. However, in
       People v. Applewhite, 2016 IL App (1st) 142330, ¶ 16, this court found that a sentence
       allowing for release at age 62 was not a de facto life sentence. In People v. Gipson, 2015 IL
       App (1st) 122451, ¶¶ 66-67, this court also found that a juvenile defendant eligible for release
       when he is 60 years old did not receive a de facto life sentence.
¶ 47        Although our supreme court has not determined a precise age of release that would
       constitute a de facto life sentence, it has recently provided some guidance in Reyes, where the
       court applied Miller to a “mandatory term-of-years sentence that cannot be served in one
       lifetime.” Reyes, 2016 IL 119271, ¶ 9. The defendant in Reyes, who was 16 years old when he
       committed the offense, received a mandatory minimum sentence of 20 years’ imprisonment
       for first degree murder, plus a mandatory 25-year firearm enhancement, and 26 years for each
       of his two attempted murder convictions consisting of the minimum 6-year sentence for
       attempted murder plus a 20-year mandatory firearm enhancement. Id. ¶ 2. Pursuant to statute,
       the defendant was required to serve his sentences consecutively; therefore, he “was sentenced
       to a mandatory minimum aggregate sentence of 97 years’ imprisonment” and “required to
       serve a minimum of 89 years” before being eligible for release. Id.
¶ 48        The State conceded, and the court agreed, “that defendant will most certainly not live long
       enough to ever become eligible for release.” Id. ¶ 10. Our supreme court reasoned that such a
       sentence “has the same practical effect on a juvenile defendant’s life as would an actual
       mandatory sentence of life without parole—in either situation, the juvenile will die in prison.”
       Id. ¶ 9. The court held that to sentence a juvenile defendant to a mandatory term “that is the
       functional equivalent of life without the possibility of parole,” without consideration of the
       mitigating factors of youth set forth in Miller, “constitutes cruel and unusual punishment in
       violation of the eighth amendment.” Id.
¶ 49        In People v. Hoy, 2017 IL App (1st) 142596, ¶ 42, the juvenile defendant argued that his
       sentence of 52 years’ imprisonment violated the eighth amendment and the proportionate
       penalties clause of the Illinois Constitution because it is essentially a sentence of “natural life”
       in prison without consideration of the principles set forth in Miller. The court in Hoy looked at
       Reyes and determined that the case extended Miller to a mandatory, unsurvivable prison term.
       Since the defendant in Hoy would be released at 68 years old, we found that his sentence was
       survivable and could not be considered “ ‘the functional equivalent of life without the
       possibility of parole.’ ” Id. ¶ 46. We acknowledge that determining whether a sentence is
       “survivable” can be a treacherous endeavor, and if the legislature does not act, perhaps our
       supreme court will provide further guidance in the future. We need not take on this issue here,
       however, because defendant’s aggregate sentence of 50 years’ imprisonment, where he is
       eligible for release when he is 55 years old, is objectively survivable. Therefore, pursuant to
       Reyes, it is not a de facto life sentence and any failure to consider the factors set forth in Miller
       prior to sentencing did not violate the eighth amendment.
¶ 50        Defendant, however, argues that his sentence is a de facto life sentence because even if he
       survives the term, he would be deprived of a meaningful opportunity to demonstrate his
       maturity or rehabilitation upon reentering society. He asks this court to follow Buffer, which

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       found that a 50-year sentence imposed on a 16-year-old defendant convicted of first degree
       murder was a de facto life sentence. Buffer, 2017 IL App (1st) 142931, ¶ 62. In so holding, the
       court cited to People v. Sanders, 2016 IL App (1st) 121732-B, ¶ 26, which referred to an
       United States Sentencing Commission preliminary quarterly data report and determined that a
       person in prison has a life expectancy of about 64 years. Id. ¶ 59. Since the defendant’s
       discharge would not occur until he is 69 years old, the court found that he would not have a
       meaningful opportunity for release. Id. ¶ 62. The court in Buffer further reasoned that “lesser
       sentences than life without parole” may also “trigger Miller-type protections” because a
       juvenile who would be released in his late sixties after nearly half a century of incarceration
       has no meaningful opportunity to demonstrate his maturity or rehabilitation upon reentering
       society. (Internal quotation marks omitted.) Id.
¶ 51        We respectfully decline defendant’s invitation. Even if we were to apply Buffer’s
       determination that a prisoner’s life expectancy is 64 years, it has no relevance here where
       defendant will be 55 years old upon his release. Defendant argues, however, that we should
       adopt Buffer’s reasoning that “lesser sentences than life without parole” may also “trigger
       Miller-type protections.” (Internal quotation marks omitted.) Id. We note that Miller and
       Montgomery involved mandatory life sentences, and the Supreme Court did not have occasion
       to consider whether “lesser sentences than life without parole” can also trigger constitutional
       protections for juvenile defendants. In neither case did the Court refer to the defendant’s
       quality of life after release as a factor courts must consider. Our supreme court in Reyes,
       equating a de facto life sentence with a mandatory, unsurvivable prison term, also did not
       address whether a juvenile defendant must have an opportunity for a meaningful life after
       imprisonment. That being said, we do not disagree that this factor could be relevant in
       determining what constitutes an appropriate juvenile sentence in light of the unique attributes
       of youth outlined in Miller. As we discussed above, these issues are best resolved by the
       legislature after taking into account societal and policy considerations.
¶ 52        Defendant also argues that his sentence violates the proportionate penalties clause of the
       Illinois Constitution. To succeed on this claim, defendant must show that his sentence is
       degrading, cruel, “or so wholly disproportionate to the offense that it shocks the moral sense of
       the community.” People v. Klepper, 234 Ill. 2d 337, 348-49 (2009). Defendant contends that
       his sentence shocks moral standards where he “was only 15 years old, his offense was both
       rash and non-lethal, and the court failed to take into account *** the accompanying qualities of
       youth” in sentencing him. He primarily relies on Gipson as support.
¶ 53        The 15-year-old defendant in Gipson was convicted of attempted murder and other
       offenses and received a cumulative sentence of 52 years’ imprisonment. Gipson, 2015 IL App
       (1st) 122451, ¶¶ 1, 4. The juvenile defendant had been falsely accused of murder at the age of
       seven and hospitalized. Id. ¶ 5. In reviewing the defendant’s claim that his sentence violated
       the proportionate penalties clause, the court found that other factors also diminished the
       justification for his prison term. The record indicated that the incident “resulted from rash
       decision making” and showed “that as a juvenile with mental illness, defendant was prone to
       impulsive behavior.” Id. ¶ 73. The court questioned the defendant’s mental health at the time
       of the offense, noting that his documented “mental health issues were not appropriately
       addressed.” Id. ¶ 74. Furthermore, the defendant “personally did relatively minimal damage”
       where the victim was discharged from the hospital on the same day he received treatment. Id.
       ¶ 73. The defendant in Gipson was also sentenced under a sentencing scheme that did not


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       permit the trial court to give appropriate weight to defendant’s youth and mental disorders. Id.
       ¶ 75. Taking these factors into account, the court in Gipson determined that although the
       defendant committed a serious offense, his sentence was “so wholly disproportionate that it
       shocks the moral sense of the community.” Id. ¶ 73.
¶ 54       Like the defendant in Gipson, defendant here was 15 years old at the time of the offense
       and he was also convicted of attempted murder. However, the similarity ends there. Defendant
       here did not have a documented history of serious mental health issues that resulted in rash
       decision making. The evidence here also indicated that defendant and his codefendants
       planned the armed robbery. Unlike Gipson, defendant’s intentional shooting of Amir caused
       him to suffer near-fatal injuries. The physician who treated Amir testified that he would have
       died had he not received emergency treatment. In sentencing defendant, the trial court noted
       the mitigating factors expressed by letters from his family and his activities. However, the trial
       court also looked at the fact that defendant caused serious bodily harm to Amir by shooting
       him in the chest. While in custody, defendant had 13 major infractions, which showed he has a
       problem with authority. The trial court stated that it wanted to deter others because if “the
       sentence does in fact deter at least one other person, the sentence will be successful in
       preventing harm to another individual.” We find that defendant’s sentence does not violate the
       proportionate penalties clause.
¶ 55       Defendant, however, argues that the court failed to take into account the heightened
       rehabilitative potential of his youth, citing People v. Miller, 202 Ill. 2d 328 (2002) (Leon
       Miller). In Leon Miller, the 15-year-old defendant’s natural-life sentence resulted from the
       convergence of three statutes. Id. at 340. Although he was convicted on the theory of
       accountability, he was tried as if he were the adult shooter and then subject to the most severe
       punishment. Id. Our supreme court found that the sentencing court “never consider[ed] the
       actual facts of the crime, including the defendant’s age at the time of the crime or his or her
       individual level of culpability.” Id. Therefore, it held that the statutory sentence as applied to
       the defendant was “particularly harsh and unconstitutionally disproportionate.” Id. at 341.
¶ 56       Leon Miller does not apply here for several reasons. First, the facts of Leon Miller are
       completely distinct from this case, aside from the young ages of the defendants. Second,
       defendant did not receive a natural-life sentence resulting from the convergence of statutes that
       did not allow for consideration of his culpability, youth, and rehabilitative potential. Finally,
       the trial court at sentencing was aware of defendant’s age, considered his culpability, and in
       terms of rehabilitative potential expressed hope that the love and support of defendant’s family
       would “carry on to him” after he completes his sentence. The trial court stated that it
       considered the mitigating and aggravating factors, and it is not required to give defendant’s
       rehabilitative potential greater weight than the seriousness of the offense. People v. Sharpe,
       216 Ill. 2d 481, 525 (2005).
¶ 57       For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 58      Affirmed.




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