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                               Appellate Court                          Date: 2017.05.09
                                                                        13:13:09 -05'00'




                  People v. Thomas, 2017 IL App (1st) 142557



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



District & No.    First District, First Division
                  Docket No. 1-14-2557



Filed             March 6, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-CR-485; the
Review            Hon. Stanley J. Sacks, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Rebecca Cohen, 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 Jesse B. Guth, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             JUSTICE HARRIS delivered the judgment of the court, with opinion.
                  Justice Simon concurred in the judgment and opinion.
                  Justice Mikva concurred in part and dissented in part, with opinion.
                                               OPINION

¶1       Following a jury trial, defendant Derrick Thomas was convicted of first degree murder,
     attempted first degree murder, and attempted armed robbery. The jury found that in
     committing the first degree murder, defendant used a firearm that proximately caused the
     victim’s death and in committing the attempted first degree murder, defendant personally
     discharged a firearm that proximately caused great bodily harm. Defendant, who was 18 years
     old at the time of these offenses, was sentenced to consecutive terms of 45 years for first degree
     murder, 31 years for attempted first degree murder, and 4 years for attempted armed robbery,
     for a total sentence of 80 years. On appeal, defendant argues that prison term represents a
     de facto life sentence that violates the bar against cruel and unusual punishment in the eighth
     amendment to the United States Constitution, as well as the proportionate penalties clause of
     the Illinois Constitution, because the trial court lacked the ability to impose a lesser sentence in
     light of his age and rehabilitative potential and the attendant circumstances of his youth.
     Defendant also contends that his trial counsel was ineffective for failing to challenge his
     sentence as unconstitutional on those grounds.
¶2       The following evidence presented at trial is relevant to defendant’s sentencing claim.
     Defendant was convicted of first degree murder for the fatal shooting of Arvon Grays and
     attempted first degree murder for shooting Terrance Redditt in his side.
¶3       At trial, Redditt testified that in 2011, he worked at a restaurant called Dillinger’s in
     Calumet Park. Redditt and defendant exchanged phone numbers after Redditt showed
     defendant some jackets and tire rims that Redditt was selling out of the trunk of his car. About
     a week later, defendant called Redditt and brought a customer to him who bought $600 worth
     of rims.
¶4       On November 15, 2011, defendant called Redditt from a phone number that was different
     from the number defendant had previously given. They spoke about the tire rims and discussed
     a credit card scam that Redditt would perform. Defendant told Redditt that defendant’s brother
     wanted to buy a set of rims from Redditt for $4200.
¶5       After that conversation, Redditt and Grays met defendant at 117th Street and Lowe Avenue
     in Chicago. Two teenagers were standing on the porch with defendant when Redditt and Grays
     drove up. Redditt asked defendant where the potential buyer was, and according to Redditt,
     defendant “got on the phone and made it like he was calling someone.” Redditt walked back
     toward his car, where Grays sat, to get a cigarette. While standing with his back to defendant,
     Redditt told Grays he did not think defendant was going to buy anything and said defendant
     was “probably on some stickup stuff.”
¶6       When Redditt turned back around to face defendant, defendant pointed a gun at Redditt’s
     stomach and said, “Give me everything.” Redditt asked defendant if he was “for real.”
     Defendant shot Redditt in the stomach. Redditt ran away, and defendant fired two more shots,
     striking Redditt in the side. Redditt stated that he and Grays were not armed.
¶7       Defendant fled after Redditt shouted for help and pretended that he saw a police officer.
     Redditt made his way to a nearby porch and heard more gunshots. Redditt was taken by
     ambulance to Stroger Hospital, where he had surgery. Redditt testified that he continues to
     have stomach pains as a result of the shooting. Redditt identified defendant in a photograph
     and a police lineup. Grays was shot in the lower back and died from that wound.


                                                  -2-
¶8         Robert Williams testified that on the day of the shootings, defendant arrived at the house of
       a mutual friend. Diamond Isom was also present. Defendant asked to use Isom’s phone
       because “he said he wanted to do a little sting or something like that.” Williams testified that to
       “hit a sting” means to rob someone. Defendant showed Williams a gun in his pocket and said
       he planned to rob a friend that he had met.
¶9         Williams and Isom went on the porch with defendant. When a car drove up, defendant
       approached the car and spoke to the occupants, one of whom remained seated in the car.
       Williams later identified the driver of the car as Redditt. Defendant ordered them to not move
       and shot Redditt as Redditt fled. Williams did not see anyone else holding a weapon.
¶ 10       Isom testified that defendant paid her $50 to use her phone on the day of the shootings. She
       stated that defendant told her he “wanted to rob this man for his money and his car,” and
       defendant showed her a gun. Isom and Williams followed defendant to make sure she got her
       phone back. Isom described the shootings consistently with the accounts of Williams and
       Redditt. After shooting Redditt, defendant shot Grays, who was sitting in the car.
¶ 11       In the defense case, defendant testified that he had met Redditt on November 15, 2011, at a
       location other than that described by Redditt. Defendant said Redditt approached him, and they
       discussed a credit card scam and exchanged phone numbers. Defendant said he gave Redditt
       his mother’s phone number.
¶ 12       Defendant admitted meeting Redditt at 117th Street and Lowe Avenue but denied telling
       Williams and Isom that he had a weapon and intended to rob someone. Defendant said that
       when Redditt arrived, Williams and Isom were present, and he was holding a gun that belonged
       to Williams’s brother.
¶ 13       Defendant admitted that he shot Redditt and Grays but testified that he did so in
       self-defense. He stated that he fired shots after Redditt unsuccessfully tried to pull a gun from
       his own waistband. After his arrest, defendant initially told police he was not involved in the
       shooting. Defendant implicated Williams after Redditt identified defendant in a lineup.
¶ 14       The jury found defendant guilty on all charged counts. The jury further found that in
       committing the first degree murder, defendant used a firearm that proximately caused the
       victim’s death and in committing the attempted first degree murder, defendant personally
       discharged a firearm that proximately caused great bodily harm to the victim.
¶ 15       At sentencing, the State noted that the minimum sentence for which defendant was eligible
       was 80 years in prison and the maximum sentence was natural life imprisonment. The
       minimum sentence for the murder count was 20 years in prison, to which was added a 25-year
       sentence enhancement for using a firearm that proximately caused the victim’s death, making
       the sentencing range for that offense 45 years to life imprisonment. The minimum sentence for
       attempted murder was 6 years in prison, to which was added a 25-year sentence enhancement
       for discharging a firearm, making the sentencing range for that offense 31 years to life
       imprisonment. The minimum sentence for attempted armed robbery was 4 years in prison, with
       the sentencing range for that offense being 4 to 15 years in prison.
¶ 16       The State presented a victim impact letter from Jeffana Fowlkes, Grays’s sister.
       Acknowledging that defendant lacked a lengthy criminal history, the State described the case
       as “egregious,” noting that he had tricked the victims into coming to him. The State pointed out
       that Grays was shot as he sat in the car and Redditt was shot as he ran away from defendant.



                                                    -3-
¶ 17        Defense counsel agreed to the applicable sentencing ranges but objected to the sentencing
       scheme, asserting that it “seems unconscionable to me.” Counsel noted that defendant had a
       weapons arrest as a juvenile. The court stated it would not consider that offense. Defense
       counsel told the court that defendant was completing school while in jail. Counsel also stated
       that defendant had no gang affiliation and he may have sustained abuse and neglect as a child.
¶ 18        Before imposing sentence, the trial court noted: “I don’t believe the sentence is
       unconscionable. The legislature feels it’s an appropriate sentencing range. They determined
       that in their opinion it’s not unconscionable.” The court stated that at the time of the offense,
       defendant was a “young guy” at 18 years of age and is “still a young guy” at 21 years of age but
       that defendant was responsible for his actions of shooting two people and killing one.
¶ 19        The court stated that defendant’s prison sentence was a result of his actions on the day of
       the offense, finding “[t]hat’s what got him there. He’s a young guy but he made his choices that
       day” by killing Grays and wounding Redditt. The court noted that defendant was receiving the
       minimum sentence possible but remarked it was “practically a life sentence” and that
       defendant would not be restored to useful citizenship “unless he lives to be a really old man
       possibly which hopefully he does.” The trial court sentenced defendant to consecutive terms of
       45 years for first degree murder and 31 years for attempted first degree murder, with each of
       those sentences including a 25-year sentence enhancement for defendant’s use of a firearm.
       The trial court also sentenced defendant to four years for attempted armed robbery, also to be
       served consecutively, for a total term of 80 years.
¶ 20        Defense counsel filed a motion to reconsider defendant’s sentence, asserting the term was
       excessive given defendant’s background and the nature of the offense, among other points. The
       trial court denied defendant’s motion.
¶ 21        On appeal, defendant contends his 80-year sentence 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). Defendant asserts those protections were
       violated because the trial court was bound by the mandatory firearm sentencing enhancements
       that applied in his case and the court was not able to consider his age or the mitigating factors
       related to his youth to impose a term of less than 80 years. He argues his sentence should be
       vacated and his case remanded for a new sentencing hearing.
¶ 22        The eighth amendment to the United States Constitution, applicable to the states via the
       fourteenth amendment, bars cruel and unusual punishment, namely punishment that is
       “inherently barbaric” or is disproportionate to the offense. Graham v. Florida, 560 U.S. 48, 59
       (2010). The proportionate penalties clause requires that sentences should be determined “both
       according to the seriousness of the offense and with the objective of restoring the offender to
       useful citizenship.” (Internal quotation marks omitted.) People v. Rizzo, 2016 IL 118599, ¶ 28.
¶ 23        “Constitutional challenges carry the heavy burden of successfully rebutting the strong
       judicial presumption that statutes are constitutional.” (Internal quotation marks omitted.) Id.
       ¶ 23 (noting that tenet applies to legislative enactments that determine the penalties to be
       imposed for certain conduct). Defendant raises an as-applied constitutional challenge,
       asserting the sentencing scheme here was unconstitutional as applied to the facts and
       circumstances of his case. See People v. Thompson, 2015 IL 118151, ¶¶ 36-37 (“an as-applied
       constitutional challenge is dependent on the particular circumstances and facts of the
       individual defendant or petitioner”). Although our discussion of relevant precedent will
       encompass both constitutional provisions, we note that the proportionate penalties clause has

                                                    -4-
       been found to offer greater protection to defendants than the eighth amendment. See People v.
       Clemons, 2012 IL 107821, ¶ 40; People v. Wilson, 2016 IL App (1st) 141500, ¶ 38, appeal
       allowed, No. 121345 (Ill. Nov. 23, 2016) (consolidated with People v. Hunter, 2016 IL App
       (1st) 141904); People v. Pace, 2015 IL App (1st) 110415, ¶ 139.
¶ 24       Defendant’s claim of cruel and unusual punishment is based on three recent United States
       Supreme Court cases, the most recent of which is Miller v. Alabama, 567 U.S. 460, ___, 132 S.
       Ct. 2455, 2469 (2012), which held that mandatory sentences of life in prison without the
       possibility of parole for juvenile offenders convicted of homicide violate the eighth
       amendment. The Court held that such a mandatory sentence precludes the trial court’s
       consideration of mitigating factors, including the juvenile’s age and attendant characteristics
       and the nature of the individual crime. Id. at ___, 132 S. Ct. at 2468. Defendant also relies on
       Roper v. Simmons, 543 U.S. 551 (2005), which found unconstitutional under the eighth
       amendment the imposition of capital punishment for a crime committed when the offender was
       younger than 18 years of age, and Graham, which found the eighth amendment was violated
       by a sentence of life imprisonment without the possibility of parole for juvenile offenders
       convicted of offenses other than homicide. Graham, 560 U.S. at 75.
¶ 25       As defendant concedes, his case differs from Miller, Roper, and Graham in that he was an
       adult, and not a juvenile offender, at the time of these crimes. Still, defendant maintains that it
       is highly improbable, given the length of his sentence and his age, that he will outlive his term
       of incarceration, and he thus asserts his 80-year term represents a de facto life sentence. The
       parties agree on appeal that even with good-time sentencing credit, defendant must serve the
       majority of his term, namely, at least 73 years of his 80-year sentence.
¶ 26       Although the Illinois Supreme Court has not addressed the application of Miller to an adult
       defendant, it has stated that the rationale of Miller, Roper, and Graham applies “only in the
       context of the most severe of all criminal penalties.” People v. Patterson, 2014 IL 115102,
       ¶ 110. During the pendency of this appeal, the supreme court held in People v. Reyes, 2016 IL
       119271, ¶¶ 9-10, that a mandatory 97-year prison term for a 16-year-old juvenile offender
       operates as a de facto life sentence “that is the functional equivalent of life without the
       possibility of parole [and] constitutes cruel and unusual punishment in violation of the eighth
       amendment.” Reyes does not warrant a similar result here, where defendant was not a juvenile
       offender. The supreme court in Reyes did not indicate it would extend the protections of Miller
       to adult offenders.
¶ 27       In a case involving an adult defendant, this court has rejected attempts to compare a
       lengthy prison term to a de facto life sentence without parole. In People v. Gay, 2011 IL App
       (4th) 100009, ¶¶ 19-25, this court held that a 97-year term composed of consecutive sentences
       for the defendant’s 16 felony convictions did not amount to cruel and unusual punishment,
       noting that the eighth amendment “allows the State to punish a criminal for each crime he
       commits, regardless of the number of convictions or the duration of sentences he has already
       accrued.”
¶ 28       Therefore, this court has held that where an adult defendant receives a sentence that
       approaches the span of the defendant’s lifetime, that term does not implicate the eighth
       amendment right barring cruel and unusual punishment. Defendant cannot demonstrate
       otherwise under Miller, Roper, and Graham, which involve capital punishment or life
       sentences without parole for juvenile offenders.


                                                    -5-
¶ 29       We next consider defendant’s claims that his sentence should be vacated under the
       proportionate penalties clause of the Illinois Constitution. A challenge under the proportionate
       penalties clause “contends that the penalty in question was not determined according to the
       seriousness of the offense.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). Defendant contends
       that the trial court had no choice but to impose a minimum term of 80 years and lacked the
       discretion to consider his age, the characteristics of youth, and his capacity for rehabilitation.
       As a result, his 80-year prison sentence violates the standard that a punishment must not be
       cruel, degrading, or wholly disproportionate to the offense as to shock the moral sense of the
       community. See Rizzo, 2016 IL 118599, ¶ 37 (and cases cited therein).
¶ 30       Defendant’s 80-year sentence includes two mandatory firearm enhancements imposed
       pursuant to section 5-8-1(a)(1)(d) of the Unified Code of Corrections (the Unified Code) (730
       ILCS 5/5-8-1(a)(1)(d) (West 2010)). A 25-year enhancement was added to defendant’s
       sentence for first degree murder based on the jury’s finding that defendant personally
       discharged a firearm that proximately caused Grays’ death. 730 ILCS 5/5-8-1(a)(1)(d)(iii)
       (West 2010) (requiring that an additional term of between 25 years to natural life
       imprisonment be added to a sentence if, during the commission of the offense, the defendant
       personally discharged a firearm that proximately caused “great bodily harm, permanent
       disability, permanent disfigurement, or death to another person”). Under the same provision,
       another 25-year enhancement was added to defendant’s sentence for attempted first degree
       murder based on the jury’s finding that defendant discharged a firearm that proximately caused
       great bodily harm to Redditt. Because defendant inflicted severe bodily injury and was
       convicted of first degree murder, the trial court was required to impose consecutive sentences.
       See 730 ILCS 5/5-8-4(d)(1) (West 2012).
¶ 31       The two mandatory enhancements in this case total 50 years and comprise more than half
       of defendant’s 80-year sentence. As to the rest of defendant’s sentence, the trial court imposed
       the minimum base sentence for each of defendant’s three felony convictions, sentencing
       defendant to 20 years for first degree murder, 6 years for attempted murder, and 4 years for
       attempted armed robbery. See 730 ILCS 5/5-4.5-20(a) (West 2010) (sentencing range for
       murder is 20 to 60 years); 720 ILCS 5/8-4(c)(1)(D) (West 2010) (attempted first degree murder
       is subject to a Class X felony sentence and a 25-year enhancement when the use of a firearm
       proximately causes great bodily harm); 730 ILCS 5/5-4.5-25(a) (West 2010) (Class X felony
       sentencing range is 6 to 30 years); 730 ILCS 5/18-2(b) (West 2010); 720 ILCS 5/8-4(c)(2)
       (West 2010); 730 ILCS 5.5-4.5-30(a) (West 2010) (armed robbery is a Class X felony, and the
       attempt to commit a Class X felony is punishable under the Class 1 felony sentencing range of
       4 to 15 years). The trial court could have imposed two terms of natural life imprisonment
       against defendant under the mandatory firearm enhancements but elected not to do so.
¶ 32       Our supreme court has upheld the constitutionality of mandatory firearm enhancements
       under the proportionate penalties clause, finding that in fixing a penalty for an offense, the
       potential for rehabilitation need not be given greater weight or consideration than the
       seriousness of the offense. Sharpe, 216 Ill. 2d at 525. Mandatory firearm enhancements are
       intended “to promote public health and safety, and to impose severe penalties that will deter
       the use of firearms in the commission of felonies.” People v. Butler, 2013 IL App (1st) 120923,
       ¶ 36. The legislature considered the use of firearms during the commission of felonies a serious
       concern, and the enhanced sentences reflect the legislature’s intent in this regard. Sharpe, 216



                                                   -6-
       Ill. 2d at 525-26. Our supreme court also determined that the legislature took into account
       rehabilitative potential when the firearm enhancements are applied. Id. at 526.
¶ 33        Defendant, however, argues that the sentencing scheme applied to him, an 18-year-old
       when he committed the offenses, violates the proportionate penalties clause because he was
       young and the trial court was precluded from considering the hallmarks of youth (lack of
       maturity, underdeveloped sense of responsibility, etc.) before imposing a term of 80 years in
       prison. As support, defendant cites People v. Brown, 2015 IL App (1st) 130048, ¶ 46; People v.
       Gipson, 2015 IL App (1st) 122451, ¶ 69, appeal allowed, No. 119594 (Ill. Nov. 23, 2016); and
       People v. House, 2015 IL App (1st) 110580, ¶ 101. Two cases involved juvenile offenders:
       Brown involved a 16-year-old defendant and Gipson involved a 15-year-old defendant, both of
       whom were tried as adults. Since defendant was an 18-year-old adult offender when he
       committed the offenses, those cases are not applicable here.
¶ 34        House involved a 19-year-old adult offender who was sentenced to natural life
       imprisonment for two counts of first degree murder. Id. ¶ 3. That term was imposed pursuant to
       an Illinois statute mandating a natural life term for defendants 17 years or older found guilty of
       murdering more than one victim. Id. ¶ 82 (citing 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1998)).
       That statute, known as the multiple-murder provision of the Unified Code, has since been
       amended to raise the applicable age to 18 years. Id. ¶ 82 n.2 (citing Pub. Act 99-69, § 10 (eff.
       Jan. 1, 2016)). In finding the multiple-murder provision unconstitutional under the
       proportionate penalties clause as applied to that defendant, the House court noted that although
       the defendant was an adult, he was convicted on an accountability theory and his participation
       in the offense was limited to acting as a lookout. Id. ¶ 89 (observing that the defendant received
       “the same sentence applicable to the person who pulled the trigger”). However, House does not
       support the same outcome here. Unlike House, the defendant here was the active shooter
       convicted of first degree murder using a firearm that proximately caused one victim’s death.
       Additionally, his attempted murder conviction resulted from shooting at a surviving victim
       three times where one bullet entered the victim’s stomach, another in his side. Defendant’s
       convictions were based on his own actions as opposed to accountability for the acts of another
       found in House.
¶ 35        After House was decided, this court addressed a similar case involving an adult offender
       and rejected the defendant’s proportionate penalties claim. In People v. Ybarra, 2016 IL App
       (1st) 142407, ¶¶ 1, 22, the defendant, who was 20 years old at the time of the crime, was
       convicted of three counts of first degree murder and received a mandatory natural life sentence
       under the same statute applicable in House. In sentencing the defendant, the trial court heard
       evidence in mitigation of the defendant’s sentence but stated that even if it had discretion to
       impose a lower term, it would still sentence the defendant to natural life in prison. Id. ¶ 18.
       Affirming that sentence, this court distinguished the facts before it from those in House, noting
       the defendant had acted in a premeditated fashion and “pulled the trigger repeatedly[,] ***
       kill[ing] three teenagers on the street as they left school one afternoon.” Id. ¶¶ 27-30.
¶ 36        Defendant here contacted Redditt and told Redditt that he knew someone who would
       purchase tire rims from him. Defendant told Williams that he planned to rob Redditt, and
       defendant paid Isom to use her cell phone to avoid detection. After Redditt and Grays arrived,
       defendant shot at Redditt, striking him in the stomach, and then chased him and fired two more
       shots at the fleeing Redditt, one of which struck him in his side. Defendant also fatally shot
       Grays in the back as he sat in the car. At sentencing, the trial court stated that it did not find the

                                                     -7-
       sentence imposed unconscionable and that the legislature did not find it unconscionable.
       Although at the time of the offense defendant was a “young guy” at 18 years of age, he was
       “responsible for his actions of shooting two people and killing one.” The court stated that
       defendant’s prison sentence was the result of his actions that day, finding “[t]hat’s what got
       him there. He’s a young guy but he made his choices that day” by killing Grays and wounding
       Redditt. The facts of this case reveal culpable behavior by defendant comparable to the
       intentional acts of the defendant in Ybarra, rather than the conduct resulting in the defendant’s
       accountability conviction in House.
¶ 37       We note that while this appeal was pending, another division of the First District decided
       People v. Harris, 2016 IL App (1st) 141744. In Harris, the court held, contrary to our
       determination here, that the 76-year sentence given to the defendant, who was 18 years old at
       the time of the offense, violated the proportionate penalties clause of the Illinois Constitution
       because the trial court was not allowed to consider the defendant’s rehabilitative potential. The
       Harris court acknowledged that Miller, Roper, and Graham applied only to juvenile
       defendants. However, with one justice dissenting, two justices determined that the “Illinois
       Supreme Court has recognized that research on juvenile maturity and brain development might
       also apply to young adults.” Id. ¶ 61. As support, the court cited to Thompson, 2015 IL 118151,
       and concluded that although Thompson did not explicitly extend Miller to young adults, “it did
       open the door for that argument.” Harris, 2016 IL App (1st) 141744.
¶ 38       We respectfully disagree with Harris. As will be shown, the majority opinion in Harris
       wrongly claims Thompson as authority to argue extending the juvenile sentencing reasoning in
       Miller to include young adults, i.e., those defendants 18 years or older. We decline to follow
       the well-meaning but false interpretation of precedent authored by the majority in Harris to
       judicially advance greater sentencing discretion to trial judges. This is the province of the
       legislature.
¶ 39       In Thompson, the defendant was convicted of two counts of first degree murder for fatally
       shooting his father and a woman inside his father’s house. Thompson, 2015 IL 118151, ¶ 4.
       The defendant was 19 years old at the time of the shootings. Seventeen years after his
       conviction, the defendant sought relief and filed a petition pursuant to section 2-1401 of the
       Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). In his petition, the
       defendant argued that the trial court violated his right to due process, and he also alleged
       various deficiencies on the part of his counsel. Thompson, 2015 IL 118151, ¶ 14. The State
       filed a motion to dismiss the petition as untimely, which the trial court granted. Id. ¶ 15. On
       appeal, the defendant abandoned all of his contentions in his original petition and argued for
       the first time that the sentencing statute was unconstitutional as applied to him because he was
       19 years old at the time, had no criminal history, and his actions resulted from years of abuse
       by his father. Id. ¶ 17.
¶ 40       The issue in Thompson was whether the defendant could raise his as-applied constitutional
       challenge for the first time on appeal. The defendant stated he was not asking the supreme
       court to look at the merits of his argument that Miller should apply to his mandatory life
       sentence. Rather, he merely argued that he should be able to bring the matter to the appellate
       court for substantive review of the issue. Id. ¶ 22. Therefore, the question facing our supreme
       court in Thompson was “whether defendant’s as-applied constitutional challenge to his
       sentence is procedurally barred or forfeited because defendant failed to include that claim in
       his section 2-1401 petition.” Id. ¶ 25.

                                                   -8-
¶ 41       To resolve the issue, the court in Thompson noted that a section 2-1401 petition must be
       filed within two years of final judgment, and an exemption from this procedural bar “is
       available only for specific types of claims.” Id. ¶ 31. The court determined that although a
       facial constitutional challenge may be raised at any time, the defendant’s as-applied
       constitutional challenge to his sentence was “not a type recognized by any of our precedents as
       exempt from the typical procedural bars of section 2-1401.” Id. ¶ 34.
¶ 42       Our supreme court reasoned that the resulting injustices are not the same in both cases,
       because an as-applied challenge requires a showing of a violation based on the facts and
       circumstances of a specific party, whereas a facial constitutional challenge requires a showing
       that the statute is unconstitutional under any set of facts. Id. ¶ 36. As illustration, the court
       referred to the defendant’s as-applied challenge and his reliance on the evolving science of
       juvenile maturity and brain development “that formed the basis of the Miller decision to ban
       mandatory natural life sentences for minors.” Id. ¶ 38. The court noted that because the
       defendant raised this issue for the first time on appeal, the record “contains nothing about how
       that science applies to the circumstances of defendant’s case” or “any factual development on
       the issue of whether the rationale of Miller should be extended beyond minors under the age of
       18.” Id. It determined that the trial court “is the most appropriate tribunal” to address
       defendant’s as-applied challenge. Id.
¶ 43       The supreme court in Thompson did not “open the door” for defendants to argue that the
       reasoning in Miller should be extended to young adults over the age of 18. Rather, it
       determined that the defendant forfeited his challenge to his sentence under Miller by raising it
       for the first time on appeal. Id. ¶ 39. Although the court in Thompson noted that the defendant
       “is not necessarily foreclosed from renewing his as-applied challenge in the circuit court,” it
       expressed “no opinion on the merits of any future claim raised by defendant in a new
       proceeding.” Id. ¶ 44.
¶ 44       Our dissenting colleague would follow Harris to find that defendant’s sentence here
       violates the proportionate penalties clause because the protections of the clause go beyond that
       of the eighth amendment and require the trial court to consider rehabilitative potential before
       imposing a sentence. We agree that the proportionate penalties clause goes beyond the
       protections of the eighth amendment in this sense. However, as our supreme court found in
       Sharpe, the legislature did consider rehabilitative potential when it created the mandatory
       firearm enhancements that constitute 50 years of defendant’s 80-year sentence. Although
       defendant argues that, given his age, his rehabilitation potential should receive greater
       consideration, our supreme court has determined that the potential for rehabilitation need not
       be given greater weight than the seriousness of the offense. Sharpe, 216 Ill. 2d at 525.
¶ 45       The dissent also argues that since defendant was only 18 years old when he committed the
       offenses, he is more similar to the juvenile defendants in Roper, Graham, and Miller;
       therefore, defendant’s sentence imposed without due consideration of the hallmarks of youth
       and rehabilitation potential violates the proportionate penalties clause. Our supreme court has
       never defined what constitutes cruel or degrading punishment or what punishment is so
       disproportionate to the offense that it shocks the moral sense of the community. People v.
       Miller, 202 Ill. 2d 328, 339 (2002) (Leon Miller). It has not supplied a precise definition
       “because, as our society evolves, so too do our concepts of elemental decency and fairness
       which shape the ‘moral sense’ of the community.” Id.


                                                   -9-
¶ 46       In Leon Miller, our supreme court recognized “a marked distinction between persons of
       mature age and those who are minors” and that “[t]his distinction may well be taken into
       consideration by the legislative power in fixing the punishment for crime, both in determining
       the method of inflicting punishment and in limiting its quantity and duration.” (Internal
       quotation marks omitted.) Id. at 342. The Illinois General Assembly did subsequently draw the
       line between “persons of mature age” and minors for purposes of sentencing. It enacted a new
       sentencing provision (730 ILCS 5/5-4.5-105 (West Supp. 2015)), effective January 1, 2016,
       providing that “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 sentencing court shall consider the following
       factors in addition to mitigation factors:
                    “(1) the person’s age, impetuosity, and level of maturity at the time of the offense,
                including the ability to consider risks and consequences of behavior, and the presence
                of cognitive or developmental disability, or both, if any;
                    (2) whether the person was subjected to outside pressure, including peer pressure,
                familial pressure, or negative influences;
                    (3) the person’s family, home environment, educational and social background,
                including any history of parental neglect, physical abuse, or other childhood trauma;
                    (4) the person’s potential for rehabilitation or evidence of rehabilitation, or both;
                    (5) the circumstances of the offense;
                    (6) the person’s degree of participation and specific role in the offense, including
                the level of planning by the defendant before the offense;
                    (7) whether the person was able to meaningfully participate in his or her defense;
                    (8) the person’s prior juvenile or criminal history[.]”
¶ 47       The legislature, pursuant to its authority, has determined that the youth-related
       considerations above are relevant in sentencing only for defendants who were under the age of
       18 when they committed their offenses. Therefore, for defendants 18 years of age or older
       when they committed their offenses, the legislature has deemed that failure to take those
       factors into account does not render a sentence cruel or degrading or so disproportionate to the
       offense that it shocks the moral sense of the community. Although one can make a case that the
       18-year-old defendant here is not much different from a 17-year-old in terms of youthful
       characteristics, a line must be drawn at some point. House’s citation to scholarly authority,
       pointing out the fact that Germany and the Netherlands extend juvenile justice considerations
       to young adults ages 18 to 21, and Sweden does the same for young adults up to the age of 25,
       illustrates this problem. See House, 2015 IL App (1st) 110580, ¶ 96. Where should the line be
       drawn? At this time, our legislature has determined that at the age of 18, a person is an adult for
       sentencing purposes. This determination is not without support. As the Supreme Court
       acknowledged in Roper, although “[t]he qualities that distinguish juveniles from adults do not
       disappear when an individual turns 18,” that age “is the point where society draws the line for
       many purposes between childhood and adulthood.” Roper, 543 U.S. at 574. We agree with the
       dissent in Harris that “it is for the legislature, and not the courts, to revisit the sentencing
       scheme and afford greater discretion to trial judges” for defendants 18 years of age or older.
       Harris, 2016 IL App (1st) 141744, ¶ 80 (Mason, J., concurring in part and dissenting in part).
       For these reasons, we decline to follow Harris.



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¶ 48        In conclusion, as an adult offender, defendant cannot obtain relief under the holdings of
       Miller, Roper, and Graham. Moreover, defendant’s sentence did not violate the proportionate
       penalties clause because mandatory firearm enhancements are intended to account for the
       serious nature of weapons offenses as well as defendant’s rehabilitative potential. The record
       also establishes that, in its discretion, the trial court considered defendant’s age and
       background in imposing the shortest possible sentence in this case. Therefore, defendant has
       not demonstrated a violation of his constitutional rights under either the eighth amendment or
       the proportionate penalties clause.
¶ 49        Defendant’s remaining contention on appeal is that his trial counsel was ineffective for
       failing to raise these constitutional arguments at his sentencing hearing. He asserts his counsel
       should have argued to the trial court that it could impose a sentence lower than the statutory
       minimum if it found the mandatory minimum sentence unconstitutional as applied to
       defendant.
¶ 50        In essence, defendant contends the trial court would have sentenced him to a term of less
       than 80 years had the court been made aware of the precedent that defendant now presents
       here. He argues the trial court was in the best position to consider whether the holdings of
       Miller and the other cases discussed above should extend to defendants between the ages of 18
       and 21.
¶ 51        To establish ineffective assistance of counsel, a defendant must satisfy the test in
       Strickland v. Washington, 466 U.S. 668, 694 (1984), namely that (1) counsel’s performance
       was objectively unreasonable compared with prevailing professional standards and (2) there is
       a reasonable probability that but for those errors, the result of the proceeding would have been
       different. This court can resolve such a claim by considering only whether defendant has met
       the prejudice prong, which “necessitates a showing of actual prejudice, not simply speculation
       that defendant may have been prejudiced.” Patterson, 2014 IL 115102, ¶ 81.
¶ 52        Defendant’s argument on this point relies on speculation that, had his counsel explained
       the Miller decision in detail at sentencing, the trial court would have ventured below the
       statutory minimum sentence. Defendant contends that the trial court failed to “highlight the
       science underlying Roper, Graham and Miller, which makes [defendant] less culpable.”
       Despite defendant’s repeated assertions to the contrary, those cases do not address the
       culpability of an adult defendant. Here, the trial court clearly indicated that defendant was an
       18-year-old offender who was responsible for his acts of shooting two people, one fatally.
¶ 53        The additional authority cited by defendant on this point is not persuasive. Defendant
       directs us to Leon Miller, in which the trial court imposed a 50-year sentence for a 15-year-old
       offender who was charged with two counts of first degree murder based on an accountability
       theory, despite the statutorily mandated sentence of natural life imprisonment required by the
       multiple-murder provision of the Unified Code (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996)).
       The supreme court affirmed the imposition of a 50-year term for that defendant, finding the
       sentencing scheme involved the automatic transfer of 15- and 16-year-olds charged with
       murder to adult court and the requirement that the defendant be held equally responsible as the
       principal in the offense, as well as the application of the multiple-murder statute. Leon Miller,
       202 Ill. 2d at 340-41. Finding the required sentence of natural life imprisonment was
       “particularly harsh and unconstitutionally disproportionate” and “does not accurately represent
       defendant’s personal culpability,” the supreme court noted in Leon Miller that “defendant was


                                                  - 11 -
       tried as if he were the adult shooter in the crime.” Id. We do not find the facts of Leon Miller
       require a similar result here, where defendant was an adult and was the gunman.
¶ 54       For all of the reasons set forth above, defendant’s 80-year sentence was constitutional
       under the eighth amendment and the proportionate penalties clause. In addition, defendant did
       not receive ineffective assistance of counsel at sentencing.
¶ 55       Accordingly, the judgment of the trial court is affirmed.

¶ 56      Affirmed.

¶ 57       JUSTICE MIKVA, concurring in part and dissenting in part.
¶ 58       I join in that part of the court’s decision rejecting Derrick Thomas’s claim that his trial
       counsel was ineffective. However, I believe that he has demonstrated a violation of his
       constitutional rights under the proportionate penalties clause of the Illinois Constitution and
       that we should follow the recent decision by another panel in this district in People v. Harris,
       2016 IL App (1st) 141744.
¶ 59       The court’s opinion in this case does not dispute that the constitutional claim raised by
       Derrick Thomas here is identical to the one that the court recognized in Harris. Like Darien
       Harris, Derrick Thomas was 18 years old at the time of his crimes; Derrick Thomas received a
       sentence of 80 years, which, even more clearly than Darien Harris’s 76-year sentence, is a
       de facto life sentence; Derrick Thomas, like Darien Harris, had no previous adult criminal
       record, and most significantly, the sentence Derrick Thomas received was, like that received
       by Darien Harris, the minimum sentence available for the trial court to impose after taking into
       consideration statutorily required minimum sentences, sentencing enhancements, and required
       consecutive sentences. See id. ¶¶ 15, 32. As in Harris, the trial court here was prevented from
       exercising any discretion to impose a lesser sentence. Id. ¶ 71.
¶ 60       I agree with the majority in this case (supra ¶ 44) that the Illinois Supreme Court’s decision
       in People v. Thompson, 2015 IL 118151, expressed “no opinion” on whether the prohibition on
       mandatory life sentences for defendants who were under the age of 18 at the time of their
       crimes should be extended to an 18-year-old defendant, as in this case and in Harris, or to a
       19-year-old defendant, as in Thompson. However, I think that both Harris and the precedent it
       cites, People v. House, 2015 IL App (1st) 110580, offer compelling reasons for holding that, in
       this case, the imposition of a mandatory de facto life sentence violates the proportionate
       penalties clause of the Illinois Constitution, which provides that “[a]ll penalties shall be
       determined both according to the seriousness of the offense and with the objective of restoring
       the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.
¶ 61       As our court recognized in Harris:
                   “In recent years, the United States Supreme Court has held that the eighth
               amendment protects juvenile offenders from capital punishment or mandatory life
               imprisonment without parole. Roper, 543 U.S. at 578-79; Graham v. Florida, 560 U.S.
               48, 82 (2010); Miller v. Alabama, 567 U.S. [460], ___, 132 S. Ct. 2455, 2475 (2012).
               These holdings were grounded in the Court’s concern, based on scientific research
               about adolescent brain development, that juveniles lack maturity, are more vulnerable
               to bad influences, and are more amenable to rehabilitation. Roper, 543 U.S. at 570.”
               Harris, 2016 IL App (1st) 141744, ¶ 56.


                                                   - 12 -
¶ 62        This trio of United States Supreme Court cases held that both capital punishment and
       mandatory life imprisonment without parole are unconstitutional penalties for defendants who
       were under the age of 18 at the time of their crimes. These cases rested on extensive research
       which the Court summarized as follows in Miller:
                “Because juveniles have diminished culpability and greater prospects for reform, we
                explained, they are less deserving of the most severe punishments. [Citation.] Those
                cases relied on three significant gaps between juveniles and adults. First, children have
                a lack of maturity and an underdeveloped sense of responsibility, leading to
                recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children 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].” (Internal quotation
                marks omitted.) Miller, 567 U.S. at ___, 132 S. Ct. at 2464.
¶ 63        Our supreme court, in People v. Reyes, 2016 IL 119271, extended this trio of United States
       Supreme Court cases to hold that it was also unconstitutional to impose a mandatory
       term-of-years sentence that was so lengthy that it was a de facto sentence of life without parole
       on a defendant who was under the age of 18 at the time of the crime. Although the State does
       not formally admit that the sentence Derrick Thomas received is a de facto sentence of life
       without parole, it acknowledges that the shortest sentence that he could actually serve would be
       73 years and 4 months, which would make him 92 years old when he is released. This is a
       de facto life sentence.
¶ 64        Although neither Reyes nor the United States Supreme Court cases discuss this explicitly,
       it is worth noting that only a young adult has any chance of serving a significant portion of such
       a lengthy sentence. Someone sentenced to jail at the age of 40 or 50 will in fact spend far less
       time in prison than a younger person, even if he or she is given the exact same sentence. Thus,
       instead of being given shorter sentences because of their youth, these younger defendants are
       actually punished far more harshly than their older counterparts.
¶ 65        Our state constitution specifically mandates that penalties in Illinois have “the objective of
       restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11; Harris, 2016 IL App
       (1st) 141744, ¶ 58. Any consideration of this objective of rehabilitative potential necessitates
       that a trial court has the ability to consider the defendant’s youth, together with the extensive
       research on juvenile maturity and brain research that led to the holdings by the United States
       Supreme Court in the trio of cases culminating in Miller. I also agree with the court in Harris
       that the proportionate penalties clause of the Illinois constitution “ ‘went beyond the framers’
       understanding of the eighth amendment and is not synonymous with that provision.’ ” 2016 IL
       App (1st) 141744, ¶ 36 (quoting People v. Clemons, 2012 IL 107821, ¶ 40). Our constitution
       makes the very specific commandment, not present in the eighth amendment, that in
       sentencing we must consider rehabilitative potential. Thus, while the United States Supreme
       Court cases drew the line, for eighth amendment purposes, at defendants who were younger
       than the age of 18 when they committed their crimes, that limitation need not and should not
       apply to the proportionate penalties clause of our constitution. As the United States Supreme
       Court recognized itself in Roper, “[t]he qualities that distinguish juveniles from adults do not
       disappear when an individual turns 18.” 543 U.S. at 574.

                                                    - 13 -
¶ 66        Moreover, when the United States Supreme Court drew the line in Roper at defendants
       who were under the age of 18 when their crimes were committed, it was in the context of
       holding that the death penalty could never be imposed. As the Supreme Court recognized, for
       such a categorical rule, “a line must be drawn.” However, the holding in Harris was not that
       the de facto life sentence could never be imposed. Rather, that such a sentence should not be
       imposed—as it was in that case and as it was for Derrick Thomas—without the trial court
       being given an opportunity to consider the defendant’s potential for rehabilitation.
¶ 67        Our court in House, in deciding that youth remained a relevant factor for a defendant who
       was convicted of two murders that occurred when he was 20 years old, cited several scholarly
       articles recognizing that several European countries have extended juvenile justice
       considerations to include, in Germany and in the Netherlands for example, all young adults
       from ages 18 to 21 and, in Sweden, young adults up to the age of 25. 2015 IL App (1st)
       110580, ¶ 96.
¶ 68        The result in this case is particularly at odds with the theme of judicial discretion
       underlying this state’s statutory sentencing scheme, a theme that has been repeatedly
       underscored by both our supreme court and by our colleagues in the appellate court:
                    “The trial court has broad discretionary powers in imposing a sentence, and its
                sentencing decisions are entitled to great deference. [Citation.] A reviewing court gives
                great deference to the trial court’s judgment regarding sentencing because the trial
                judge, having observed the defendant and the proceedings, has a far better opportunity
                to consider these factors than the reviewing court, which must rely on the ‘cold’ record.
                [Citation.] The trial judge has the opportunity to weigh such factors as the defendant’s
                credibility, demeanor, general moral character, mentality, social environment, habits,
                and age. [Citations.] Consequently, the reviewing court must not substitute its
                judgment for that of the trial court merely because it would have weighed these factors
                differently.” (Internal quotation marks omitted.) People v. Alexander, 239 Ill. 2d 205,
                212-13 (2010).
       See also People v. Decatur, 2015 IL App (1st) 130231, ¶ 12 (“the trial court, having observed
       the defendant and the proceedings, is better suited to consider sentencing factors than the
       reviewing court, which relies on the ‘cold’ record”).
¶ 69        When it sentenced Derrick Thomas, the trial court in this case had no opportunity to
       consider any factors, including his age or, as our constitution expressly mandates, “the
       objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. The trial
       court specifically remarked that, because of the mandatory minimum consecutive sentencing
       statutes, it was “unable to consider” whether Derrick Thomas “could be restored to useful
       citizenship.” The trial court also acknowledged that the events that ended with Derrick Thomas
       killing one man and badly wounding another began as a “nonsensical plan.” The court
       summarized the “problem” as follows: “18 years old, has a gun available to him and he uses it
       in this case to shoot two people.” It is certainly possible that, if allowed to consider it, the trial
       court would have viewed this tragic incident as an effect of “recklessness, impulsivity and
       heedless risk-taking.” Miller, 567 U.S. at ___, 132 S. Ct. at 2464; see Roper, 543 U.S. at 569. It
       is also possible that the trial court would have believed that Derrick Thomas, like the
       defendants who were under the age of 18 at the time of their crimes in Roper, Graham, and
       Miller, suffered from a “lack of maturity and an underdeveloped sense of responsibility,
       leading to recklessness, impulsivity, and heedless risk-taking,” that he was young enough to be

                                                    - 14 -
       unduly subject “to negative influences and outside pressures,” that his traits were “less fixed”
       than those of an adult, and that “his actions [were] less likely to be evidence of irretrievabl[e]
       deprav[ity].” (Internal quotation marks omitted.) Miller, 567 U.S. at ___, 132 S. Ct. at 2464. If
       we followed Harris and House, we could remand this case and allow the trial court to consider
       the facts bearing on this particular defendant’s potential for rehabilitation.
¶ 70       The majority distinguishes House, in which the court also found that a mandatory life
       sentence for a young offender—in that case a 20-year-old—was unconstitutional. Supra
       ¶¶ 36-38. House was previously distinguished in People v. Ybarra, 2016 IL App (1st) 142407,
       ¶ 27, and the majority here concludes that Derrick Thomas’s case is more like Ybarra than like
       House, because the facts of this case reveal culpable behavior by defendant that is more
       comparable to the intentional acts of the defendant in Ybarra than the accountability
       conviction of the defendant in House. See supra ¶ 36. Respectfully, this is not our decision to
       make, particularly in the first instance. It is the trial court judge, who saw Derrick Thomas and
       observed his demeanor and general moral character, as well as his age, who should have the
       opportunity to determine whether he had a potential for rehabilitation such that something
       short of a de facto life sentence was appropriate. Indeed, in Ybarra, the culpability of the
       defendant was particularly egregious and the trial judge stated on the record that he would have
       imposed a life sentence even if he had been afforded the discretion to impose a lighter
       sentence. 2016 IL App (1st) 142407, ¶ 32. In contrast, the trial judge in this case said that he
       had no discretion and was “unable” to consider rehabilitative potential. It is the fact that we
       have no idea what the trial court would have done if given discretion and an ability to consider
       rehabilitative potential for a young adult that makes this case like House and different from
       Ybarra.
¶ 71       The majority here makes no attempt to distinguish Harris but chooses not to follow it.
       Other than its disagreement with the court in Harris that our supreme court opened the door to
       this holding in Thompson, the majority supports this choice with the suggestion that we should
       wait for the legislature to revisit the sentencing scheme that left the trial judge in this case with
       no sentencing option less than the de facto life sentence it imposed on Derrick Thomas. Supra
       ¶ 44. We may be waiting for some time. Although our supreme court held in 2002 that the
       imposition of a mandatory minimum sentence of natural life violated the proportionate
       penalties clause on a 15-year-old defendant (People v. Miller, 202 Ill. 2d 328, 336 (2002)
       (Leon Miller)), it was not until 2016, and after the court’s holding in that case was joined by
       numerous others in cases before this court, the United States Supreme Court, and courts in
       other jurisdictions, that the legislature returned some discretion to trial court judges in the
       sentencing of juveniles. See Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS
       5/5-4.5-105(c) (eliminating mandatory firearm enhancements and mandatory life sentences for
       juveniles)).
¶ 72       We certainly could sit back and wait for the legislature to return some degree of discretion
       in the sentencing of very young adults to the courts. But of course it is the role of the judiciary,
       and not the legislature, to step in wherever the application of a statute violates the rights
       afforded by our constitution. See, e.g., Leon Miller, 202 Ill. 2d at 336 (noting that the
       legislature’s power to impose a sentence “is not without limitation; the penalty must satisfy
       constitutional constrictions”). To do so now would not be premature. There is a clear trend,
       informed by ever-accumulating scientific evidence, in the jurisprudence of this country and
       this state toward more leniency and sentencing discretion in cases involving young offenders.

                                                    - 15 -
       It is precisely to accommodate trends like this, which reflect the changing values and concerns
       of our society, that our supreme court has refused to precisely delimit the bounds of what
       punishments are cruel, degrading, or unconstitutionally disproportionate. See id. at 339
       (explaining that, “as our society evolves, so too do our concepts of elemental decency and
       fairness which shape the moral sense of the community”). Although Derrick Thomas
       committed very serious crimes, under our constitution he is entitled to a sentence based not just
       on the seriousness of those crimes but one that is arrived at with the objective of restoring him
       to useful citizenship. A sentence imposed without consideration for his youth or the scientific
       evidence demonstrating a connection between youth and the potential for rehabilitation cannot
       meet this standard.
¶ 73        I respectfully dissent.




                                                  - 16 -
