                                   2017 IL App (1st) 142596


                                                                         FIRST DIVISION
                                                                         September 11, 2017



No. 1-14-2596

THE PEOPLE OF THE STATE OF ILLINOIS,               )       Appeal from the
                                                   )       Circuit Court of
       Plaintiff-Appellee,                         )       Cook County.
                                                   )
v.                                                 )       No. 09 CR 13472
                                                   )
DELAMONTE HOY,                                     )       Honorable
                                                   )       Lawrence E. Flood,
       Defendant-Appellant.                        )       Judge Presiding.

       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Justices Simon and Mikva concurred in the judgment and opinion.

                                          OPINION

¶1     Defendant, Delamonte Hoy, appeals his conviction, after a bench trial, of first degree

murder and his sentence of 52 years’ imprisonment. On appeal, defendant contends that (1) the

trial court should have found him guilty of second degree murder instead of first degree murder,

where the evidence showed that defendant had an actual but unreasonable fear of imminent

harm, and (2) his sentence of 52 years’ imprisonment, which includes a mandatory 25-year

firearms enhancement, should be vacated and the case remanded for resentencing because

defendant was 16 years old when he committed the offense, and his sentence does not comport

with the constitutional or statutory requirements for sentencing juveniles. For the following

reasons, we affirm.
No. 1-14-2596


¶2                                       JURISDICTION

¶3     The trial court sentenced defendant on July 31, 2014. Defendant filed his appeal that

same day. 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 Rule 603 (eff. Oct. 1,

2010) and Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009), governing appeals from a final

judgment of conviction in a criminal case entered below.

¶4                                       BACKGROUND

¶5     On Friday, June 19, 2009, 16-year-old defendant and his longtime friend, 17-year-old

James Thomas, were in front of a three story building on Chicago’s west side. A few days

before, a friend of both boys had been shot in the neighborhood so defendant acquired a pistol

that he had on him that day. As boys that age are known to do, defendant and James got into a

heated verbal argument, which ordinarily would have resulted in hitting or pushing the other and

both probably wrestling on the ground to the point of exhaustion, their heated passions drained

away. But for the fact that defendant had a gun, what ordinarily should have happened between

these boys did not happen. In this heated moment, with the immediate availability of a gun,

defendant fatally shot James once in the stomach and twice more as James tried to crawl away.

Instead of the boys ending their argument with punches and shoves, defendant reached for his

gun and fired shots at James. James died from his injuries, and defendant is now serving a

sentence of 52 years’ imprisonment for first degree murder.

¶6     Defendant was charged with six counts of first degree murder in the shooting death of

James. At his bench trial, Catherine Slater testified that on June 19, 2009, she went to visit her

parents who lived in the basement apartment at 1338 S. Albany in Chicago. As she was leaving,

Catherine observed defendant arguing with James in front of the building. There were also six or

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seven other people on the porch. The area in front of the house was bordered by a wrought iron

fence and a gate. Catherine did not see defendant or James touch each other, and she did not see

a weapon initially. She heard defendant say to James, five or six times in a loud voice, “Say it

again. Say it again. I’ll shoot the s**t out of you.” They were standing about a foot apart, facing

one another but there was no physical contact. Catherine saw defendant pull a silver revolver

from behind his back and shoot James, hitting him twice in the stomach. When James tried to

crawl away, defendant shot him four more times in the back. Defendant then ran toward Douglas

Boulevard. All of the shots were fired from inside the fence. After he was shot, James lay on the

ground inside the wrought iron fenced area.

¶7     Catherine identified defendant in a photo array. She stated that, on the day of the

shooting, defendant wore his hair in dreadlocks. In the photo array, however, defendant’s hair

was not in dreadlocks. Catherine also identified defendant in a lineup on June 30, 2009, and at

that time, defendant had shaved off almost all of his hair. She did not recall that defendant was

wearing a blue hat on the day of the shooting.

¶8     Kenneth Slater testified that he lived at 1338 S. Albany on the day of the shooting. When

he approached his home on June 19, 2009, around 4:30 p.m., he noticed defendant and James

having “words” on the porch. Kenneth knew James from the neighborhood and also knew

defendant’s father. He heard defendant say, “Say it again” but he did not hear James’s response.

Kenneth did not see any physical contact between defendant and James, nor did he see either of

them with a weapon. Neither defendant nor James wore a hat, and Kenneth did not see bicycles

out front. After he went inside, Kenneth heard a pop like a firecracker and then after a pause,

about four more pops. He looked out of the plate glass window at the front of the house and saw



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James lying on the ground inside the yard. He also saw defendant running toward Douglas

Boulevard. Renee Johnson and Cordarrell came out to help James.

¶9     Two days later, Kenneth identified defendant from a photo array. Kenneth thought that

defendant wore his hair in dreadlocks on the day of the shooting, but he did not wear it that way

in the lineup photo. Kenneth refused to identify anyone in the lineup on June 30th because he

received “a little threat.” At trial, Kenneth was shown a photo taken of the lineup and he

acknowledged it showed the people in the lineup room that day. He then identified defendant in

the lineup photo.

¶ 10   Renee Johnson testified that on June 19, 2009, she was working as a private nurse for

Jackie Slater who lived at 1338 S. Albany. Renee knew defendant and James, and thought of

both like nephews. When she arrived at 1338 S. Albany that day, around 4:30 p.m., she saw

seven or eight people outside on the porch. She observed that defendant and James “were having

a verbal conversation” but she did not hear what was said. She clarified that they were having

more of an argument than conversation and that defendant’s voice was raised more than James’s

voice. Renee stated that defendant’s hair was in dreadlocks at the time, and he was not wearing a

hat. Renee testified that while they were arguing, she did not see James or defendant put their

hands on each other. She told both of them to stop arguing because “they were better than that.”

¶ 11   Renee then went into the building to care for Jackie. While inside, Renee heard two

gunshots coming from the front of the building. She then heard “a couple of more shots,” and

someone came inside and told her that one of her “Godsons got shot” but they did not know who.

Renee did not go to the front of the building initially, but instead went to her building to tell

defendant’s father than defendant had been shot. When she saw defendant’s father, she “turned

around and told him it wasn’t [defendant].” Renee stated that she could not explain it, “but

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something came over [her]” and she “just knew in [her] heart that it wasn’t [defendant] that got

shot.” When asked who she thought had been shot, Renee answered, “It was James.” She ran to

the front of 1338 S. Albany and saw James lying in the grass behind the gate. Renee identified

defendant in a photo array and lineup. She testified that defendant’s hair was different on the day

of the shooting than it was in the lineup or photo.

¶ 12   Cordarrell Wilson (“Big C”) testified that on June 19, 2009, he was selling drugs to an

old man who lived in the basement of 1338 S. Albany. He walked to the front of the building and

saw James lying in the grass inside the fence. He did not hear gunshots, nor did he know whether

James was injured. He did not see James with a gun. He stayed with James until the ambulance

arrived, and then went to the police station to speak with police. At trial, Cordarrell denied

telling police anything about the shooting and stated that the police told him what he knew.

Although he acknowledged his handwritten statement, and that he identified photos of James and

defendant, he denied making the statements about the shooting. He testified that the police

threatened to “put the case on” him and other older men because defendant and James were

“juveniles and all that.” They told Cordarrell that if he signed his name to the paper, they would

let him go “right then and there. That’s how [his] signature got on the paper.”

¶ 13   Assistant State’s Attorney (ASA) William Kelly testified that he took Cordarrell’s

handwritten statement. In the statement, Cordarrell said that he was hanging out with friends on

the 1300 block of S. Albany on June 19, 2009. Defendant and James had been arguing “for

awhile,” and Cordarrell heard a gunshot and saw defendant shooting. Defendant was pointing his

hand down towards the gate. He heard three shots. As he was shooting, defendant was moving

toward 13th Street, and after the shots, defendant “was gone.” James was lying in front of the

house and he appeared to have a wound to his stomach. Cordarrell did not see James with a gun.

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¶ 14    Cordarrell initialed corrections and told ASA Kelly, outside the presence of the police,

that he had been treated decently. He also stated that no threats or promises were made in

exchange for his statement. Cordarrell made substantially the same statement to Detective Ruiz.

Cordarrell never stated that he saw defendant and James make physical contact with each other.

¶ 15    The parties stipulated that Dr. Lawrence Cogan from the Cook County Medical

Examiner’s Office performed an autopsy on James. Dr. Cogan observed a gunshot entrance

wound on the right middle back and a gunshot exit wound over the right shoulder. The direction

was “front to back, downward and left to right.” There was also a penetrating gunshot wound to

the abdomen with no exit wound. The right iliac artery was completely severed, resulting in

“extensive hemorrhage extending from the right kidney down to the groin.” Dr. Cogan also

found a penetrating gunshot wound to James’ left buttock. The direction appeared to be back to

front and downward. He concluded that James died of multiple gunshot wounds and the manner

of death was homicide.

¶ 16    Alante Hands testified for the defense. Alante stated that, in 2010, he spoke with defense

counsel and Kathleen Schultz. Schultz took a handwritten statement from Alante. In the

statement, Alante stated that, on the day of the shooting, defendant teased James, saying that

James must have been scared because he had not been seen for three days following an

altercation. James raised his fist and kept throwing punches. Alante jumped in to break them

apart, and while he was in the middle, a shot fired. While defendant walked away, James

shouted, “I’m going to kill this b**ch as [sic] n****r.” Defendant turned around and shot James

again. Alante heard four or five shots and then saw defendant running. Alante rode away on his

bike.



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¶ 17   At trial, Alante testified that James approached 1338 S. Albany and tried to get

defendant’s bicycle. Alante guessed that defendant told James he could not have the bike and

that James said something and then slapped defendant’s hat. Defendant rode away on the bike to

the water fountain. When he returned, James left the porch and walked up to the bike. James

poked defendant in the head with his fingers. Defendant laughed, and James pulled out a cell

phone, asking if defendant wanted to fight or shoot because he would make a phone call “and

have the whole block[ ] patched up.” Alante testified that defendant was ready to ride off on his

bike when James “muffed” him on the back of his head. Defendant turned the bike around. He

was “mad because he wasn’t laughing no more.” He told James to stop touching him, and James

“smacked his hat off his head.” Alante tried to get between them but, before doing so, he heard

shots fired. He saw James “goin[g] down” and “grabbing his side” while defendant stood holding

the gun. James said, “I’m fittin’ to kill him. He just shot me. He just shot me.” Defendant fired a

few more shots and then “took off running.” Alante testified that before the first shot was fired,

he saw James “swung a punch at” defendant’s chin.

¶ 18   On cross-examination, Alante acknowledged that he did not see James with a weapon. He

denied that defendant and James argued about James being scared, claiming instead that they

argued about the neighborhood bike. They did not have a heated argument, and James did not

call anyone to tell them to bring a gun. He stated that when James knocked off defendant’s hat,

defendant was not in pain nor did he get knocked down. Alante stated that he thought defendant

wore a black White Sox cap, and defendant’s hair was not in dreadlocks. Alante stated that after

James hit defendant, defendant was not bleeding nor did he notice any physical injury. After he

was hit, defendant did not ride away on his bike or run away. Defendant reached into his

waistband, pulled out a gun, and shot at James. Alante stated that the gun was dark blue, “black

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No. 1-14-2596


looking.” After being shot, James fell backwards, saying “he shot me, I’m fittin’ to shoot this

b**** ass, he just shot me. I’m fittin’ to kill him, I’m fittin’ to kill him.” Alante acknowledged

that James never moved toward defendant or pulled out a weapon. Alante stated that James was

facing defendant when defendant fired the last three to five shots.

¶ 19   Alante stated that defendant’s brother took him to talk to defense counsel. He denied

telling counsel that James raised his fists or flinched at defendant. He denied telling counsel that

he got in the middle of defendant and James to break up their argument, or that a shot was fired

while he was in the middle. Alante also denied telling counsel that defendant walked away after

firing the first shot, that Alante rode away on a bike, or that James was going to use his phone to

call someone to shoot. Alante stated he was friends with both defendant and James and did not

want to see defendant get into trouble.

¶ 20   Defendant testified that a couple days before the shooting, a friend had been shot. The

next day, defendant found a loaded pistol in the gangway behind his house, and he took the gun

with him because his “friend had just got shot.” Defendant testified that at the time, he and his

friends, including James, “were just fightin’ ” and there “was a lot of stuff goin’ on.” Defendant

did not know whether the gun was a revolver or a semiautomatic weapon, but described it as a

“small little cap-type of gun.”

¶ 21   On the day of the shooting, James demanded the neighborhood bike from him but

defendant refused. Although James called him a b****, defendant ignored him and rode towards

the water fountain. When defendant returned, James came off the porch and called defendant a

“b**** ass n*****.” James put his hand in defendant’s face, but defendant just laughed and

thought “nothing of it.” James then pulled out his cellphone and asked defendant if he wanted to

fight or shoot because James would make a call to bring in other people. James put his phone

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away, and defendant started to ride away. James hit defendant in the back of the head and

defendant told James to stop “puttin’ your f****** hands on me.” James slapped defendant’s hat

off his head and the hat fell in the grass. He swung at defendant and grazed his chin, and “the

first shot went off.” After James told defendant he was “fittin’ to kill” him, “the gun went off

again. It went off a few more times.” Defendant then ran to his grandmother’s house and told

her, “I messed up. I messed up, grandma.”

¶ 22   On cross-examination, defendant stated that he had not seen James for two or three days

prior to the shooting. He denied telling James that James was a coward. He stated that when

James poked him in the head, it did not hurt and he suffered no physical injuries. He laughed it

off and at that point was not afraid of James. He did not see James with a weapon, but defendant

had a chrome gun with him. Defendant stated that when James hit him in the back of his head, it

did not hurt or cause physical injury. Defendant was wearing a fitted White Sox cap, James

knocked off his cap, and it fell on the grass outside the gate. After James punched him in the

chin, defendant was not bleeding nor did he suffer injuries.

¶ 23   Defendant stated that Alante was on the porch and not between him and James when the

shooting occurred. Defendant acknowledged that he pointed his gun at James and pulled the

trigger. James fell to the ground and said, this “b**** ass n***** just shot me. I’m gonna kill

him.” Defendant shot James again, although he denied shooting James in the back. Defendant

was concerned for his safety because James said he was going to shoot defendant. Defendant

turned and looked away from James while firing. He did not know if he was shooting at James.

Before turning himself in to the police, defendant got a haircut and did not call his friends to

hang out on the block.



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¶ 24   Officer Terrance McKitterick processed the scene. He recovered an adjustable baseball

cap from the concrete steps. There were no caps on the grass parkway. The cap was not a White

Sox cap; instead, it had a skull and a heart with the words, “Kills, love.”

¶ 25   At the conclusion of the trial, the trial court noted important consistencies between

Catherine’s testimony and that of the other State witnesses. They stated that defendant and James

were inside the fence and defendant did not wear a hat. The hat found at the scene was not the

fitted White Sox cap defendant and Alante testified that defendant was wearing. Catherine’s

description of the gun was consistent with defendant’s description, and her description of James

being shot as he was crawling away was corroborated by the medical examiner’s findings that

James was shot in the lower back and buttocks. The trial court also noted inconsistencies in

Alante’s testimony and therefore had “a lot of problems with his testimony.”

¶ 26   The trial court found that the evidence supported a conviction of first degree murder

where defendant intentionally and knowingly shot James three times and James died from his

injuries. The court found no evidence to support defendant’s theory of imperfect self-defense.

Defendant suffered no injuries, and his response to any provocation by James was “completely

out of proportion to the provocation by the victim, if it occurred, which I highly doubt based

upon the evidence.” The trial court believed that the evidence pointed “to a verbal argument

between the victim and defendant that resulted in the shooting of the victim three times.” It

found defendant guilty on all counts. The trial court subsequently denied defendant’s motion for

a new trial, finding that in considering the physical evidence and weighing the credibility of the

witnesses, defendant’s conviction “of first degree murder on all six counts was the appropriate

decision.”



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¶ 27   At the sentencing hearing, the State presented testimony from Cook County correctional

officer Wilkins that defendant was one of 29 inmates involved in a jail fight on April 29, 2014.

Cook County sheriff’s deputy Oscar Sanchez testified that after defendant was found guilty, he

turned to the gallery, formed his hand into the shape of a gun, pointed and gestured as if he was

pulling a trigger. Katrice Thomas, James’ mother, testified that defendant’s gesture seemed to be

directed at her. Correctional officer Collins testified that on April 19, 2014, defendant punched

another inmate who was handcuffed. Defendant denied gesturing a gun shot at James’ mother,

and stated he had stuck his middle finger up at James’ brother, who was next to his mother,

because the brother allegedly stuck out his tongue at defendant.

¶ 28   In sentencing defendant, the trial court considered the presentence investigation report as

well as the testimony at the hearing and victim impact statements. It also considered defense

counsel’s arguments concerning the report, letters sent on behalf of defendant, a presentence

memorandum submitted by defense counsel, defendant’s statements to the court and his

apologies to his family as well as to James’s family. The court noted that defendant comes from

an average middle class family with both parents working. He had been relatively trouble-free

and “had a promising future. All of a sudden we come together at this particular location and

time and a gun is pulled and one life is ended and the other life is changed forever. Forever.”

¶ 29    The court also acknowledged defense counsel’s arguments regarding the Supreme Court

case of Miller v. Alabama, 567 U.S. 460 (2012), finding that a sentence of natural life in prison

could be imposed on a juvenile offender under Miller as long as there is “a sentencing hearing in

which these matters are considered. That’s what we had in this case.” The trial court also

imposed the mandatory firearm enhancement, which “as it stands now,” is “the law that [the

court] must follow in this sentencing. So the minimum sentence that I can impose is 45 years all

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the way up to natural life. Obviously I don’t believe that natural life is the appropriate sentence

in this case. However, that being said, I do believe that a sentence above the minimum is

appropriate in this case based upon the totality of the case and what I have heard, both at trial and

in the sentencing.” The court sentenced defendant to 52 years’ imprisonment to be served at

100%. Defendant filed this timely appeal.

¶ 30                                        ANALYSIS

¶ 31     Defendant’s first argument on appeal is that the evidence shows he shot James “out of

actual, if unreasonable, fear of imminent harm” and therefore, he is guilty of second degree

rather than first degree murder. Specifically, he argues that he is guilty of a form of second

degree murder known as imperfect self-defense. Generally, self-defense is established by the

following factors: “(1) force is threatened against a person, (2) the person is not the aggressor,

(3) the danger of harm was imminent, (4) the threatened force was unlawful, (5) the person

actually and subjectively believed a danger existed that required the use of the force applied, and

(6) the person’s beliefs were objectively reasonable.” People v. Washington, 2012 IL 110283,

¶ 35. In arguing imperfect self-defense, defendant acknowledges that he committed first degree

murder but “at the time of the killing he *** believe[d] the circumstances to be such that, if they

existed, would justify or exonerate the killing ***, but his *** belief [was] unreasonable.” 720

ILCS 5/9-2(a)(2) (West 2014).

¶ 32   To find defendant guilty of second degree murder, the State must first prove that

defendant committed first degree murder beyond a reasonable doubt. 720 ILCS 5/9-2(c) (West

2014). Defendant must then prove by a preponderance of the evidence the existence of a

mitigating factor. Id. The State does not have the burden of proving the absence of a mitigating

factor beyond a reasonable doubt. People v. Shumpert, 126 Ill. 2d 344, 352 (1989). Here,

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defendant does not challenge the trial court’s finding that the State proved him guilty of first

degree murder beyond a reasonable doubt. He argues only that the trial court erred in finding that

defendant did not prove the mitigating factor of his actual and unreasonable belief in

self-defense. Therefore, viewing the evidence in the light most favorable to the State, we must

determine whether any rational trier of fact could have found that defendant failed to prove he

had an actual and unreasonable belief in self-defense by a preponderance of the evidence. People

v. Blackwell, 171 Ill. 2d 338, 358 (1996). “A preponderance of the evidence is evidence that

renders a fact more likely than not.” People v. Urdiales, 225 Ill. 2d 354, 430 (2007).

¶ 33   Defendant argues that he had an actual but unreasonable belief in self-defense because

the evidence shows that three days before he committed the offense, a friend was shot in a

drive-by shooting. The next day, defendant found a loaded pistol, and he took the gun with him

because his “friend had just got shot.” On the day James was shot, defendant and James were

arguing for some time when James asked defendant if he wanted to fight or shoot because James

would make a phone call “and have the whole block[ ] patched up.” Defendant feared for his

safety so he pulled out his gun and shot James. After the first shot, James threatened to kill

defendant so defendant kept shooting. Afterward, defendant ran to his grandmother’s house and

told her that he “messed up.” Defendant argues that he would not have shot James unless he

feared for his life because he and James were longtime friends with no history of violence. He

argues that the evidence does not support the inference that defendant would use force to counter

a merely “ego-injuring” statement and the only reasonable inference is that he acted due to a fear

of imminent harm, even if his fear was objectively unreasonable.

¶ 34   We disagree. Although defendant may have presented some evidence to support an

unreasonable belief in self-defense, other evidence at trial does not support this mitigating factor.

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Catherine testified that on June 19, 2009, she observed defendant arguing with James in front of

the building with six or seven other people also present. She did not see defendant or James

touch each other, nor did she see a weapon initially. Catherine heard defendant say to James, five

or six times in a loud voice, “Say it again. Say it again. I’ll shoot the s**t out of you.” There was

no physical contact. Catherine then saw defendant pull a silver revolver from behind his back

and shoot James, hitting him twice in the stomach. When James tried to crawl away, defendant

shot him more times in the back. Defendant then ran toward Douglas Boulevard. Two other State

witnesses, Kenneth and Renee, testified similarly about these events leading up to the shooting.

¶ 35   Although another State witness, Cordarrell, testified at trial that he did not tell the police

anything about the shooting, he acknowledged that he had previously given a handwritten

statement about the shooting. He testified, however, that the police told him what to say in the

statement. Cordarrell’s handwritten statement corroborated the testimony of Catherine, Kenneth,

and Renee in that he saw defendant and James arguing “for awhile” and then he saw defendant

shooting. Defendant was pointing his hand down towards the gate. Cordarrell heard three shots.

James was lying in front of the house, and he appeared to have a wound to his stomach. None of

the State’s witnesses, including Cordarrell, saw James with a gun, and the gunshot wounds

suffered by James are consistent with testimony that defendant shot James twice as James tried

to crawl away. This evidence contradicts defendant’s argument that he “had even an

unreasonable belief that the use of deadly force was justified.” People v. Brown, 222 Ill. App. 3d

703, 721 (1991) (the trial court properly refused to give a voluntary manslaughter instruction

where the evidence showed that the victim had no gun and was shot in the back of the head).

¶ 36   Whether defendant is guilty of first degree or second degree murder, or was justified in

using deadly force because he was acting in self-defense, is a question for the finder of fact.

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People v. Simon, 2011 IL App (1st) 091197, ¶ 52. It is the responsibility of the fact finder to

determine the credibility and weight of witness testimony, to resolve conflicts and

inconsistencies in the evidence, and to draw reasonable inferences therefrom. Id. A reviewing

court will not substitute its judgment for that of the finder of fact on issues involving the

credibility of witnesses. People v. Castellano, 2015 IL App (1st) 133874, ¶ 145.

¶ 37   The trial court here found the State’s witnesses credible and, noting the inconsistencies in

the testimony of Alante who was the only witness to corroborate defendant, had “a lot of

problems with his testimony.” The court further found that defendant had suffered no injuries;

therefore, his response to any provocation by James was “completely out of proportion to the

provocation by the victim, if it occurred, which I highly doubt based upon the evidence.” “[T]he

trial court was entitled to credit the [State] witnesses’ testimony instead of defendant’s to find

that defendant did not prove that he had an unreasonable belief in the need to use self-defense

against the victim.” Simon, 2011 IL App (1st) 091197, ¶ 59. Based on all of the evidence in the

record, a rational trier of fact could have found by a preponderance of the evidence that

defendant failed to prove he had an actual but unreasonable belief in self-defense. We therefore

affirm defendant’s conviction of first degree murder.

¶ 38   Defendant next contends that his sentence of 52 years’ imprisonment should be vacated

and the case remanded for resentencing. First, he argues that he should be resentenced in

accordance with the provisions of section 5-4.5-105 of the Unified Code of Corrections (Code)

(730 ILCS 5/5-4.5-105 (West 2016)), because the legislature enacted this provision while

defendant’s appeal was pending. Section 5-4.5-105 addresses additional factors the court shall

consider in mitigation when sentencing a defendant who was under the age of 18 when he

committed the offense. These factors include defendant’s “age, impetuosity, and level of

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maturity at the time of the offense”; whether defendant “was subjected to outside pressure,

including peer pressure, familial pressure, or negative influences”; and defendant’s home

environment, his rehabilitation potential, as well as the circumstances of the offense. 730 ILCS

5/5-4.5-105(a)(1)-(5) (West 2016).

¶ 39    In People v. Wilson, 2016 IL App (1st) 141500, appeal allowed, No. 121345 (Ill. Nov.

23, 2016) (consolidated with People v. Hunter, 2016 IL App (1st) 141904, appeal allowed, No.

121306 (Ill. Nov. 23, 2016)), this court addressed whether section 5-4.5-105 applied to the

17-year-old defendant’s sentencing, where the provision became effective after his sentencing

but while his direct appeal was pending. The court noted that in determining whether a statute

may be applied retroactively, our supreme court has adopted the approach set forth in Landgraf

v. USI Film Products, 511 U.S. 244 (1994). Wilson, 2016 IL App (1st) 141500, ¶ 14. Pursuant to

Landgraf, if the legislature has clearly prescribed the statute’s temporal reach, this legislative

intent “ ‘must be given effect absent a constitutional prohibition.’ ” Id. (quoting Hayashi v.

Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 23).

¶ 40    Section 5-4.5-105(a) provides that “[o]n or after the effective date of this amendatory Act

of the 99th General Assembly, when a person commits an offense and the person is under 18

years of age at the time of the commission of the offense,” the court “shall consider the following

additional factors in mitigation in determining the appropriate sentence[.]” 730 ILCS

5/5-4.5-105(a) (West 2016). The court in Wilson determined that the plain language of the

provision clearly “demonstrates the legislature’s intent that the statute apply to offenses

committed after the [statute’s] effective date” of January 1, 2016. Wilson, 2016 IL App (1st)

141500, ¶ 16. Therefore, section 5-4.5-105 could not be applied retroactively to the defendant’s

case. Id. ¶ 46.

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¶ 41   Recent cases have also found that section 5-4.5-105 applies where an offense was

committed prior to the provision’s effective date, but the defendant’s sentencing hearing occurs

after the effective date. See People v Reyes, 2016 IL 119271, ¶ 12 (determining that section 4 of

the Statute on Statutes, which entitles a defendant to be sentenced under the law in effect either

at the time of the offense or at the time of sentencing, allowed application of section 5-4.5-105’s

sentencing factors to a defendant’s re-sentencing hearing after the effective date); see also

People v. Hunter, 2016 IL App (1st) 141904, ¶ 43 (finding that section 5-4.5-105 applied at

sentencing hearings held on or after the effective date), appeal allowed, No. 121306 (Ill. Nov.

23, 2016) (consolidated with Wilson, 2016 IL App (1st) 141500, appeal allowed, No. 121345

(Ill. Nov. 23, 2016)). Here, defendant’s commission of the offense and his sentencing hearing

both occurred prior to the statute’s January 1, 2016 effective date. Therefore, we find that section

5-4.5-105 does not apply here.

¶ 42   Defendant also argues that his sentence of 52 years’ imprisonment violates the eighth

amendment to the United States Constitution (U.S. Const., amend. VIII) and the proportionate

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), because his sentence

essentially is a sentence of “natural life” in prison and therefore “runs afoul of the constitutional

principles” set forth in Miller. 1 The Supreme Court in Miller 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. As Miller explained:

       “First, children have a ‘lack of maturity and an underdeveloped sense of responsibility,’

       leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children

       1
         Defendant’s only challenge to his sentence on appeal is whether it is constitutional under the
eighth amendment and proportionate penalties clause. He does not argue, nor do we address, whether his
sentence was otherwise inappropriate or excessive.

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       ‘are more vulnerable . . . to negative influences and outside pressures,’ including from

       their family and peers; they have limited ‘contro[l] over their own environment’ and lack

       the ability to extricate themselves from horrific, crime-producing settings. [Citation.] And

       third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’

       and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity]. [Citation.]’ ”

       (Internal quotation marks omitted.) Id.

Not only do these characteristics diminish a juvenile’s culpability, but these “distinctive

attributes of youth diminish the penological justifications” for imposing life without parole on

juvenile defendants. Id. at 472. Miller, therefore, 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 .

¶ 43   In Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), the Supreme Court

elaborated on its ruling in Miller. It determined that the sentencing of a juvenile to life without

parole is “excessive for all but the rare juvenile offender whose crime reflects irreparable

corruption.” (Internal quotation marks omitted.) Id. at ___, 136 S. Ct. at 734. “Even if a court

considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still

violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient

immaturity’ ” of youth rather than “irreparable corruption.” (Internal quotation marks omitted.)

Id. at ___, 136 S. Ct. at 734. Therefore, in order to comply with the eighth amendment’s

prohibitions, the judge at a sentencing hearing must consider “ ‘youth and its attendant

characteristics’ ” so that juveniles who may be sentenced to life without parole can be separated

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from those who may not. Id. at ___, 136 S. Ct. at 735. The Supreme Court noted that the

sentencing judge need not make an explicit finding of incorrigibility, and left for the states to

determine how to enforce this constitutional restriction on the imposition of juvenile sentences.

Id. at ___, 136 S. Ct. at 735.

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

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

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

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

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

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

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

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

¶ 45    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.

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¶ 46   Defendant here, who was also 16 years old when he committed the offense, was

sentenced to 52 years’ imprisonment which included a 25-year mandatory firearm enhancement.

The minimum sentence he could have received was 45 years’ imprisonment. Although the trial

court determined that a sentence above the minimum was required, it did not believe “that

natural life is the appropriate sentence in this case.” Even if defendant served 100% of his

sentence, he would be released at 68 years old. Although defendant’s age upon release would fall

toward the end of his lifespan, this sentence is survivable and thus cannot be considered “the

functional equivalent of life without the possibility of parole.” See id. (extending Miller to a

“mandatory, unsurvivable prison term”).

¶ 47   Furthermore, even if defendant’s sentence is “the functional equivalent of life without

parole,” it does not violate the eighth amendment. The Supreme Court in Montgomery held that

for a life sentence to comply with the eighth amendment’s prohibitions, the judge at a sentencing

hearing must consider the characteristics of youth discussed in Miller so that incorrigible

juveniles, who may be sentenced to life without parole, can be separated from those who have a

potential for rehabilitation. Montgomery, 577 U.S. at ___, 136 S. Ct. at 735. Here, defense

counsel argued at the sentencing hearing that the trial court should consider the characteristics of

youth in Miller. In sentencing defendant, the court explicitly recognized the holding in Miller,

finding that a sentence of natural life in prison could be imposed on a juvenile offender as long

as there is “a sentencing hearing in which [youthful] matters are considered. That’s what we had

in this case.” The sentencing judge need not make an explicit finding of incorrigibility. Id. at

___, 136 S. Ct. at 735. We find that defendant’s sentence complies with the requirements set

forth for constitutionality in Miller, Montgomery, and Reyes.



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¶ 48   Defendant’s final contention is that his sentence is unconstitutional under 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 provides little analysis or support for his contention, arguing only that his

52-year imprisonment sentence (which includes a mandatory 25-year firearm enhancement)

“shocks the moral sense of the community” and merely citing People v. Gipson, 2015 IL App

(1st) 122451, as support. Gipson, however, is factually distinct from defendant’s case in that the

juvenile defendant there was convicted of attempted murder, not first degree murder, and he had

a documented history of mental health issues that “were not appropriately addressed.” Id. ¶ 74.

The defendant in Gipson was also sentenced under a sentencing scheme that did not permit the

trial court to give appropriate weight to defendant’s youth and mental disorders. Id. ¶ 75. As

discussed above, the trial court here did in fact take defendant’s youthful characteristics and

considerations into account when imposing the sentence.

¶ 49   Furthermore, the 25-year mandatory firearm enhancement does not violate the

proportionate penalties clause. Our supreme court has upheld the constitutionality of such

enhancements, noting that the legislature has the power to establish mandatory minimum

sentences and it took into account rehabilitative potential when applying the enhancements.

People v. Sharpe, 216 Ill. 2d 481, 525-26 (2005). This court has also rejected the arguments of

juvenile offenders that the imposition of mandatory firearm enhancements violates the

proportionate penalties clause. Hunter, 2016 IL App (1st) 141904, ¶ 59; People v. Banks, 2015 IL

App (1st) 130985, ¶¶ 19, 23-24 (holding that in contrast to Miller, Roper, and Graham where the

trial courts were afforded no discretion under the sentencing statutes applicable in those cases, the

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No. 1-14-2596


operation of mandatory firearm enhancements does not preclude the trial court from imposing a

sentence within the statutory range after considering factors relevant to the offense).

¶ 50                                 CONCLUSION

¶ 51   For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 52   Affirmed.




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