                           Illinois Official Reports

                                   Appellate Court



                        People v. Pace, 2015 IL App (1st) 110415



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



District & No.        First District, Sixth Division
                      Docket No. 1-11-0415



Filed                 September 11, 2015
Modified upon
denial of rehearing   October 16, 2015


Decision Under        Appeal from the Circuit Court of Cook County, No. 07-CR-12118; the
Review                Hon. Nicholas Ford, Judge, presiding.



Judgment              Affirmed in part, vacated in part, and remanded with instructions;
                      mittimus corrected.

Counsel on            Michael J. Pelletier, Alan D. Goldberg, and Yasaman Hannah Navai,
Appeal                all of State Appellate Defender’s Office, of Chicago, for appellant.

                      Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                      William Toffenetti, and Mary P. Needham, Assistant State’s
                      Attorneys, of counsel), for the People.



Panel                 JUSTICE DELORT delivered the judgment of the court, with opinion.
                      Justices Cunningham and Harris concurred in the judgment and
                      opinion.
                                             OPINION

¶1       Defendant Michael Pace appeals the trial court’s denial of his motions to vacate his guilty
     plea and reconsider sentence. On appeal, he contends that the trial court committed reversible
     error by (1) considering its personal beliefs and private investigations during the sentencing
     hearing; (2) exhibiting bias against him; (3) improperly considering his declination to speak
     in allocution; (4) considering improper evidence; (5) failing to consider mitigating evidence;
     (6) improperly questioning a defense witness during a hearing on his motion to vacate his
     plea; and (7) failing to properly admonish him pursuant to Illinois Supreme Court Rule
     402(a) (eff. July 1, 1997). In addition, he contends that the automatic transfer provision of the
     Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-130 (West 2006)) and the
     application of the 25-years-to-life mandatory firearm enhancement and consecutive
     sentencing statute violate 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). We affirm in part, reverse in part, vacate defendant’s sentence and
     remand with instructions.

¶2                                       BACKGROUND
¶3       On June 15, 2007, defendant was charged in a 29-count indictment with first degree
     murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2006)), attempted first degree murder (720 ILCS
     5/8-4, 9-1 (West 2006)), and aggravated battery with a firearm (720 ILCS 5/12-4.2 (West
     2006)). Defendant was 16 years old at the time he committed the offense. Due to the nature
     of the offenses, his case was transferred to adult criminal court pursuant to the automatic
     transfer provision of the Juvenile Court Act. 705 ILCS 405/5-130(1)(a) (West 2006). On
     June 19, 2009, defendant entered into a blind guilty plea whereby he plead guilty to one
     count of first degree murder, one count of first degree murder in which he personally
     discharged a firearm that proximately caused death, and two counts of aggravated battery
     with a firearm.
¶4       After defendant announced his intent to enter a guilty plea, the trial court furnished him
     with several admonishments. The court began by admonishing defendant about the
     sentencing ranges applicable to him. The court specifically informed defendant that the
     sentencing range for first degree murder was 20 to 60 years’ imprisonment, that the
     sentencing range “[o]n the charge of Personally Discharging a Firearm Which Proximately
     Caused the Death of Blair Holt” was 25 years to life in prison, and that the sentencing range
     for aggravated battery with a firearm was 6 to 30 years’ imprisonment. After informing the
     defendant of the range applicable to each offense, the court asked defendant if he understood.
     Defendant answered “yes” each time.
¶5       Next, the court admonished defendant about the nature of a blind guilty plea. The court
     explained that there was no agreement between defendant and the State or the court regarding
     what sentence would be imposed. The court asked defendant if he understood and still
     wanted to plead guilty and defendant answered affirmatively.
¶6       The court then admonished defendant about the nature of the rights he would be
     relinquishing by pleading guilty. The court explained that defendant had a right to plead not
     guilty and force the State to prove him guilty beyond a reasonable doubt. The court then
     informed defendant that he had the right to a jury trial. The court explained what a jury was,

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       how it functioned, and that a jury’s verdict must be unanimous. After each of these
       admonishments, defendant indicated that he understood. Defendant then signed a jury waiver
       form, at which point the court stated “[b]y signing that you are indicating to me in writing
       that you understand that you’re waiving your absolute right to trial by jury, do you
       understand that?” Defendant replied “yeah.”
¶7         Next, the court informed defendant that he had a right to a bench trial, and it explained to
       defendant what a bench trial was. The court also told defendant that by pleading guilty he
       was giving up his right to confront witnesses against him and subpoena witnesses to testify
       on his behalf. After each of these admonishments, defendant indicated that he understood.
¶8         The court then inquired into the voluntariness of defendant’s plea by asking whether
       defendant’s decision to plead guilty was made of his own free will and whether the plea had
       been induced by any threats, force or promises. Defendant answered “yes” and “no,”
       respectively.
¶9         The State then presented the following factual basis for defendant’s plea: Around 3 p.m.
       on May 10, 2007, a Chicago Transit Authority (CTA) bus stopped at Julian High School
       (Julian). Several students who had been released from Julian for the day boarded the bus,
       including Blair Holt, Christine Coley, and Megan James. The bus began travelling west on
       103rd Street toward Halsted Street.
¶ 10       While the bus traveled toward Halsted Street, defendant and some other friends were at
       Mt. Vernon Park near 105th Street and Aberdeen Street. At that time, they formed a plan to
       “go get” rival gang members whom they believed were travelling on the bus. One of
       defendant’s friends, Kevin Jones, gave defendant a gun and a hoodie. The group then walked
       to a bus stop at 103rd Street and Halsted Street and waited outside a currency exchange for
       the bus to arrive.
¶ 11       When the bus approached, defendant peered inside and then ran onto the bus at the front
       entrance. Standing by the driver’s area, defendant took out the handgun and fired several
       shots into the crowd of people on the bus. Several people were struck by defendant’s gunfire,
       including Coley, who suffered gunshot wounds to her chest and arm; James, who suffered a
       gunshot wound to her knee; and Holt, who suffered a gunshot wound to his abdomen. Coley
       and James survived, but Holt died from his wounds later that day.
¶ 12       After firing the shots, defendant fled to the area around 105th Street and Aberdeen Street.
       There, he told a person named Jimmie Malone that he had “just laid down the murder game.”
       Defendant then left the area.
¶ 13       Surveillance video from outside the 103rd Street currency exchange showed defendant
       waiting for the bus and pulling the gun out. Surveillance video from onboard the bus showed
       defendant entering the bus, firing the gun, and then exiting. Police captured still images from
       the bus’s surveillance video. A police officer took one of the images to Julian, where an
       attendance officer identified defendant. Defendant turned himself in on May 12, 2007.
¶ 14       After finding that defendant’s plea was supported by a factual basis, the court found
       defendant guilty and entered judgment against him. The court then admonished defendant for
       a second time regarding the sentencing ranges he was facing and the fact that there was no
       agreement about what sentence he would receive. Defendant again indicated that he
       understood the admonishments.



                                                  -3-
¶ 15       The court conducted a sentencing hearing on July 20, 2009. In aggravation, the State
       presented testimony from Detective Neil Maas, Coley, James, and victim impact statements
       from Holt’s parents, Ronald Holt and Annette Nance Holt.
¶ 16       In mitigation, the defense presented testimony from Dr. Robert Hanlon, whom the parties
       stipulated was an expert in neuropsychology. Dr. Hanlon testified that he met with defendant
       in May 2008 in order to conduct a neuropsychological evaluation. The evaluation revealed
       that defendant had an IQ of 77, which according to Dr. Hanlon was in “the borderline range
       of intelligence.” He explained that meant defendant was “above the mental retardation range,
       but below the low average range.” The evaluation also showed that defendant had a
       “nonverbal learning disorder.” Dr. Hanlon explained that a nonverbal learning disorder
       “involves impaired perceptual abilities and deficient spatial processing[ ]” and can lead to
       “difficulty in perceiving and interpreting gestures, nonverbal communication, [and] facial
       expressions.” He noted that such disorders have “a significant academic impact on school
       performance” which leads to difficulty “forming and understanding *** the abstract meaning
       of things and drawing inferences.” He also noted that individuals with such disorders
       experience emotional problems, stating “many of these kids generally are frustrated, and they
       are often angry and often depressed. They tend to act out. They’re compulsive, and they have
       poor social judgment.” Dr. Hanlon believed that defendant’s learning disability “very likely”
       affects his judgment and socialization.
¶ 17       On cross-examination, Dr. Hanlon testified that he believed defendant knows right from
       wrong “in many cases.” He also conceded that he stated in his report that defendant’s
       “thought processes were logical, linear, and goal directed” and that he did not find evidence
       that defendant had a “thought disorder or psychotic thought content or severe mood disorder
       or marked anxiety.”
¶ 18       After the State finished its cross-examination, the following colloquy took place between
       the court and Dr. Hanlon:
                    “THE COURT: Doctor, you talked a little bit about socialization in your
               evaluation of Mr. Pace; is that correct?
                    THE WITNESS: Yes.
                    THE COURT: Are people who suffer from nonverbal learning disorders such as
               his often isolated within communities?
                    THE WITNESS: Often ***. Particularly, if there are limited socio-economic
               advances for such students, they are often isolated.
                    THE COURT: Were you aware from your evaluation of Mr. Pace that he was a
               self-admitted member of a street gang?
                    THE WITNESS: I’m aware that he had some gang affiliation.
                    THE COURT: Wouldn’t his social interaction and general behavior during the
               course of this incident in some ways detract from your assessment of him as having a
               disability that would prevent him from socializing?
                    In other words, communal acts, long term membership in a gang, don’t these
               things sort of run in the face of your evaluation of him having an issue regarding his
               ability to socialize?
                    THE WITNESS: Well, I think *** as you’re describing it, we’re getting at a
               difference between a disability and an inability. I’m not saying that he had the total

                                                  -4-
               lack of ability for any of the things I have discussed. I’m saying he’s just not
               functioning at a normal level in most of those demands.
                   THE COURT: So would you say he would have exceeded his disability in joining
               a gang and being involved in these communal efforts?
                   THE WITNESS: Could you re-ask the question?
                   THE COURT: Would you say he exceeded his ability when he joined a gang and
               succeeded in interacting with his associates here during the course of this event?
                   You have described him as intellectually limited; is that correct?
                   THE WITNESS: Correct.
                   THE COURT: You said that he had a nonverbal language disorder that would
               have had definite reflection upon his ability to socialize; is that correct?
                   THE WITNESS: It would be, yes.
                   THE COURT: All right. Now knowing that he was a member of a gang over time
               and knowing also that he engaged in a complicated effort to execute a person on a bus
               in the City of Chicago, would these things be inconsistent with the level of disability
               that you’re indicating that he possesses?
                   THE WITNESS: Not inconsistent. I think he probably joined a gang because of
               his limitations, and he found some support and admiration by that gang affiliation,
               and I think that commonly occurs.
                   THE COURT: Can you think of any other reasons why someone would join a
               gang other than the reason you just gave?
                   THE WITNESS: Money.
                   THE COURT: Any questions based on that, Miss Danahy or Mr. Mahoney?
                   MR. MAHONEY [Assistant State’s Attorney]: No.
                   MS. DANAHY [Assistant Public Defender]: No.
                   THE COURT: Thank you, Doctor.”
¶ 19       After the live testimony concluded, the court offered defendant the opportunity to speak
       in allocution. Defendant declined. The parties then offered arguments in aggravation and
       mitigation. The State, emphasizing the facts of the crime and noting that this case was “every
       parents’ nightmare,” asked the court to impose a lengthy sentence.
¶ 20       In mitigation, defense counsel explained that defendant’s intended victim was a rival
       gang member named Jerome Kraft who was riding the bus that defendant boarded.
       According to defense counsel, defendant and Kraft were involved in an ongoing feud in
       which Kraft had tried to shoot defendant. Defense counsel argued that “in [defendant’s] 16
       year old, 77 I.Q. mind, [Kraft] was coming after him. [Kraft] was on the bus by the back door
       making gestures at Michael.” Defense counsel then told the court that defendant had
       expressed remorse to her. Defense counsel emphasized that defendant’s youth was a
       mitigating factor, and also pointed out that defendant had a learning disability, history of
       substance abuse, difficult upbringing, and no criminal record.
¶ 21       The trial court then announced its sentence. The court began by explaining that it would
       consider: (1) the facts of the case; (2) the presentence investigation; (3) the evidence in
       aggravation and mitigation; (4) the statutory factors in aggravation and mitigation; (5) the


                                                  -5-
       financial impact of incarceration; (6) sentencing alternatives; (7) the victim impact
       statements; and (8) “the defendant’s right of allocution, which he did not avail himself of.”
¶ 22       The trial court then offered the following remarks:
                    “I, like most of you, wake up each morning and walk out and take the paper off
                my steps. I, like most of you, have been saddened by what’s going on in our city. A
                lot of mornings I wake up and walk my daughter to a public school in this city, not, of
                course, over the course of the summer.
                    So when I talk about the affects that this crime or that my sentence will have on
                us as a society, I’m talking from my own personal experience, which I will bring to
                bear on what I think is the appropriate sentence in this case. And that is experience
                which has had a shadow cast over it like a lot of you here today. There is, simply put,
                too much gang violence on our streets.
                    These facts, the facts of this case, are the most unimaginable that a parent can
                face. I know that on the date that Blair Holt was killed, his parents kissed him
                good-bye and told him they loved him. I know that all of the parents that put their
                children on that bus or placed their children in Julian High School had a right to know
                that their children would be protected, that their children would be safe.
                    I know for a fact that even in the most economically challenged corners of our
                city, that only one or two percent of the population make the lives of those there
                miserable by their conduct. That’s in the worst, unimaginable neighborhoods within
                the City of Chicago. Only one or two percent of the population is involved in making
                our lives worse. They are the headlines that greet me each morning.
                    There are many, many people in public housing in economic circumstances with
                difficult economic and educational backgrounds that never cross the threshold into
                the building here at 26th and California. These are facts I know and facts that I will
                consider in conjunction with sentencing in this circumstance.”
¶ 23       The court then commented on the surveillance footage showing defendant’s crime,
       stating:
                    “But when those children said good-bye to their families–and as I watched the
                video here, as I imagined the thoughts and prayers of the parents of these children on
                that bus and watched the man before me here today mount the steps to that bus, buses
                that I have mounted my whole life, buses that I have mounted with my daughter, I
                imagined the horror that must have confronted them, and it is extremely apparent
                from looking at the video of the carnage that happened on Bus 103 leaving Julian
                High School.”
¶ 24       The court then discussed what it hoped defendant’s sentence would accomplish, stating:
                    “It is unconscionable and it has no quarter in our city. And if in making my
                sentence today I can do one thing, it would be the hope that all of us look out our
                windows at the people around us and ask ourselves whether or not we’ve done
                everything we can to make it better, whether or not we’ve been vigilant with our sons
                and daughters to make sure that they are not involved in any illegal misdeeds out
                there, to make sure that they are not members of street gangs like this man, to make
                sure that they know that the people out there that are involved in these sorts of things



                                                   -6-
          like Mr. Pace know that they’re being watched by all of us, the other 99 percent.
          Because they are.
              And a failure to act and a failure to be involved in the lives of your children and a
          failure to not intervene and act out and point out to the police and to authorities what
          you see happening and when you see something criminally happening is a failure that
          we all have to live with. And it is one that I’m hoping my sentence here today will
          remind everyone is the duty of every citizen, to act and to act in a way that will help
          stop and curb what’s going on out there.”
¶ 25   The court then commented on the blamelessness of defendant’s victims, stating:
              “[I]n this circumstance, I don’t have some fellow gang member standing across
          the street that’s the victim in this case. I don’t have that. I don’t–none of the three
          victims in this circumstance were in any way complicit in what happened to them.
                                               ***
              *** The Holts, whose Victim Impact Statement I will consider during the course
          of my statement, and their son and the two young women that testified here moments
          ago did nothing to facilitate or any way contribute to what happened to them, not one
          thing.
              And the parents, and particularly the Holts and also to the other parents that had to
          know that that horror was inflicted upon them knowing that they have done
          everything correctly as best they could to ensure the safety of their children is
          revolting. In every way.
              As I said, they didn’t do anything to deserve the outcome in this circumstance.
          Blair Holt didn’t do anything to deserve the outcome in this circumstance. He was
          just somebody that was riding a bus.”
¶ 26   The court then discussed Dr. Hanlon’s testimony, stating:
              “I have heard factors in mitigation in this case. I heard from Dr. Hanlon. And I
          have heard from doctors like Dr. Hanlon before. And what *** my experience of their
          testimony, and I will consider it, are that in some ways Mr. Pace can find refuge in
          education that wasn’t going well. It seems–at least it’s the doctor’s opinion that he
          suffered from a lower I.Q. than most and that he didn’t do well in school.
              I don’t think there’s anything Mr. Pace’s family could have done to prevent that.
          But here again, this isn’t an uncommon disability. Difficulties in school aren’t
          uncommon either. Children in our schools right now and even those that go on to
          attend college have confronted learning disabilities in early age. I’m not going to
          paint them with the brush that the doctor would.
              And I have to say as a matter of fact that I’m weary tired of watching doctors,
          psychologists walk into my courtroom and somehow try to provide some shade for
          the conduct of a person like Michael Pace. Because it’s a disservice to all the people
          they see during the course of their careers that don’t do it.
              You think that he hasn’t had the same diagnosis for some kid from Deerfield or
          some other child that never did anything wrong in their life that grew up in
          Englewood? And yet, somehow, I’m supposed to sit here and think that that is some
          reason, that is some mitigation that somehow takes the terrible stain of his conduct
          away from him. And that is unpalatable in the extreme.”

                                               -7-
¶ 27       The court then considered defendant’s presentence investigation (PSI). The PSI indicated
       that defendant’s mother and father never married and that his father was incarcerated. In
       addition, the court noted that according to the PSI, defendant had the words “I’m a beast” and
       “I’m a dog” tattooed on right and left hands, respectively. The court stated that it doubted
       that those tattoos “escaped any parent’s eyes.” The court also noted that the PSI indicated
       that defendant said that he was a member of the Gangster Disciple street gang “but grew up
       under it” and that “[i]t was really no gang to me. It was more of a movement.” In response to
       those statements, the court said that defendant seemed to be “exud[ing] a certain degree of
       pride, which leads me back down the road of questioning how closely he was ever watched.”
       The court then found that defendant was a member of a gang, stating:
                   “What I see in those tattoos and what I’m hoping everybody else sees is that too
               many of us are dedicated to violence, too many of us are dedicated to revenge, too
               many of us are dedicated to solving problems with a handgun rather than the way that
               the rest of us do it. That one percent haunts us like a bad dream every day. They do it
               on the steps of churches and they do it on buses leaving Chicago public schools.”
¶ 28       The court then said the following:
                   “It will be my job to remove one small part of that one percent, but there are many
               more of them out there, and if anyone is looking through their paper, like I do every
               morning, tomorrow morning I hope they read this and understand that all of us have
               to be vigilant and understand that every child, no matter what community they come
               from, is really all of our children, whether they’re Chicago Public School students,
               whether they attend Leo High School or Loyola Academy, whether they attend Julian
               or Lane or Whitney. All of us have to understand that we can only be as strong as
               protecting them shows, and that responsibility begins with looking out your window
               and thinking about the people around you.”
¶ 29       The court then referred to Holt and his family, as well as Coley, the bus driver, the police
       detectives, physical therapists and hospital staff who treated Coley and James, the State’s
       Attorneys, and public defenders as members of the “99 percent” and “heroes.” The court
       stated, however, that when it looked at defendant, it did not see “a victim, some person that
       was in any way trying to defend himself.” Instead, according to the court, defendant was “in
       that one percent, that makes a life for the rest of us a living hell.” The court declared that
       defendant was “not going to define the city that I’m from. The Holts, their son, the other
       children on that bus, they define who I am.” Continuing on, the court stated:
                   “And there aren’t enough bullets being made to silence the voices. No amount of
               guns and no amount of young punks and no amount of gang members are ever going
               to find enough dark corners and dark alleys to hide in, because there are way, way
               more of us than there are of them.”
¶ 30       After finishing its remarks, the court sentenced defendant to consecutive prison terms of
       35 years for first degree murder, with an additional 25 years added due to the mandatory
       firearm enhancement, and two 20 year prison terms for each aggravated battery with a
       firearm, resulting in an aggregate sentence of 100 years’ imprisonment. In its closing
       remarks, the court stated “it is my hope that this sentence serves two masters. One, that it is
       retributive, and, two, that it is a message to those people in those dark alleys *** that people
       like you and I outnumber them by thousands and millions.”


                                                  -8-
¶ 31       Defendant then filed a motion to reconsider sentence. A hearing on defendant’s motion
       was held on July 21, 2009. At the hearing, the court stated, “I do want to indicate that I felt
       there was mitigation here. In my finding yesterday I didn’t say that there wasn’t.” The court
       explained that it took into account the fact that defendant pled guilty, but that it also
       considered the fact that defendant did not speak in allocution or express remorse. In
       somewhat contradictory fashion, however, the court then stated that defendant’s decision to
       remain silent during the sentencing hearing did not affect his sentence. Instead, the court
       explained that “[w]hat I heard, what happened and the other statutory and non-statutory
       factors both in aggravation and mitigation are what made his bed. Elocution or no elocution,
       he was going to be in the area in which he ends up finding himself.” At the conclusion of the
       hearing, the court denied defendant’s motion to reconsider sentence.
¶ 32       On August 6, 2009, defendant filed a notice of appeal. On August 17, defendant filed a
       pro se motion to vacate his guilty plea. A public defender was appointed to represent
       defendant and withdrew defendant’s notice of appeal. On May 6, 2010, defendant, through
       counsel, filed an amended motion to vacate his guilty plea arguing that his guilty plea was
       not knowing and voluntary because (1) his low IQ precluded him from understanding the
       court’s admonishments and (2) the admonishments he received were legally deficient.
¶ 33       The court held a hearing on defendant’s motion on January 6, 2011. At the hearing,
       defendant presented testimony from Dr. Linda Grossman, whom the parties stipulated was an
       expert in forensic psychology. Dr. Grossman reviewed Dr. Hanlon’s notes and report, the
       raw data his report was based on, his testimony, as well as defendant’s educational records
       and a transcript of the admonishments which the trial court gave to defendant before it
       accepted his guilty plea. In reviewing these materials, Dr. Grossman observed that defendant
       had difficulty learning and suffered from developmental disabilities. She also confirmed that
       Dr. Hanlon correctly scored defendant’s IQ at 77, and she learned that defendant had less
       than a fifth grade ability in verbal capacities “including reading, sentence ***
       comprehension, reading comprehension, [and] spelling.”
¶ 34       When asked about “auditory-verbal encoding,” a term which Dr. Hanlon used in his
       report, Dr. Grossman explained that it meant “difficulties in abstracting meanings from
       words or sentences presented orally.” She explained that the term applied to defendant
       because he has “numerous difficulties understanding verbal material” and would have an
       easier time understanding information if it were presented to him in written form rather than
       verbally. Dr. Grossman then testified that “[t]o a reasonable degree of psychological
       certainty, it’s my opinion that Mr. Pace’s intellectual limitations and verbal limitations are
       inconsistent with an ability on his part to understand the admonishment as it was given to
       him verbally in court.”
¶ 35       On cross-examination, Dr. Grossman admitted that she stated in her report that
       defendant’s limitations were inconsistent with his ability to understand the admonishments as
       written. She also conceded that reading ability is different than the ability to understand
       verbal communication and that someone who cannot read may possibly nonetheless be able
       to understand verbal admonitions. She clarified, however, that “the words that were written
       but were said to him aloud, exceed his vocabulary by quite a bit.” She also admitted that she
       did not personally meet defendant.
¶ 36       On redirect, Dr. Grossman explained that it was not necessary to interview defendant
       because she had access to “all of the preceding tests and raw data” that she used to “rescore

                                                  -9-
and check for accuracy.” The following colloquy then took place between defense counsel
and Dr. Grossman:
           “Q. [DEFENSE COUNSEL]: Now, also, as far as the spoken word, you also
       testified on direct about this auditory-verbal encoding, correct?
           A. Correct.
           Q. Now, exactly what does that mean in regards to a person being able to
       comprehend something spoken as opposed to comprehending something as he reads
       it?
           A. It refers to the inability or impairment of the ability of somebody who abstract
       the meaning or synthesize the meaning of words or sentences presented orally or
       received auditorily.
           Q. So that a person such as Michael, and I want you to be clear to the Court, so a
       person such as Michael will have an easier time understanding something if he read it
       as opposed to just listening?
           A. It’s my opinion that he would.”
Immediately thereafter, the following colloquy took place between the court and Dr.
Grossman:
           Q. [THE COURT:] Wouldn’t that be the case for everybody?
           A. No, Your Honor, it wouldn’t be the case for everything.
           Q. Well, I mean, so you’re telling me if [sic] wouldn’t be the case that everyone
       who read something and then heard it aloud wouldn’t benefit from having read it first
       or you can even juxtapose the two?
           A. That’s not what I’m hearing here.
           Q. That’s the question I asked you, though, Doctor, and it’s a pretty simple one–
           A. I think the answer would–
           Q. –wouldn’t that be the case for everyone?
           A. –yes. I think the answer would be yes to that question.
           Q. Yes, okay.
           Additional question, is this a common practice for you to just come to a legal
       conclusion predicated solely on the diagnostic information provided from another
       psychologist?
           A. I didn’t put it on the diagnostic, I looked at the raw data, and that would be–
           Q. So you just looked at somebody else’s scores and you gave–
           A. I rescored the test, and reinterpreted them. I found that–
           Q. Did you make any inquiry of the woman that represented Mr. Pace about
       whether or not she had done any educational work of Mr. Pace prior to the time the
       plea was done so that these words when they arose, that you’re saying that he didn’t
       understand them, could have been understood?
           A. No, sir.
           Q. Would you consider that to be inquiry that might have been made?
           A. I have never made that type of inquiry before.
           Q. Have you testified like this before on other people’s reports?

                                          - 10 -
                   A. Yes, I have.
                   Q. Wouldn’t the most accurate information come from the person that your [sic]
               rendering opinion on themselves rather than some static data from another source?
                   A. That would take into account someone else’s judgment of his abilities?
                   Q. That’s not the real question. I’m asking, if you’re trying to tell me that you
               have an understanding of Mr. Pace’s linguistic abilities and that understanding is
               solely predicated on diagnostic material generated by another psychologist, wouldn’t
               you want to supplement, I mean, for example, he could have gone through some
               organic circumstances after he took the test but before you got him, that would have
               meant that he understand even more poorly on the date that he entered the plea. Do
               you follow me?
                   A. Yes.
                   Q. How long before the plea was the most recent psychological examination?
                                                              ***
                   A. The report was in September of ’08, the testing was in May of ’08.
                   Q. And the plea was when?
                   MR. LANDRUM [Defense Counsel]: May I, Judge?
                   THE COURT: Let me finish this out and then everybody who has questions, they
               can ask.
                   THE WITNESS: *** I don’t know the date.
                   Q. That in and of itself is an important factor, wouldn’t you think, Doctor?
                   A. I just don’t have access to it right now.
                   Q. The reason I’m asking you this is because if it was a long period of time in
               which somebody would have spoken to him about the possibility of pleading guilty
               and what the admonishments would be, that might affect, in real terms, his ability to
               understand what was going on, would it not?
                   A. It might.”
¶ 37       Upon further redirect, Dr. Grossman explained that she based her conclusions on raw
       data and that the raw data for defendant “was constant among three different testings taken
       over years apart. It was always the same result.”
¶ 38       On recross, Dr. Grossman conceded that Dr. Hanlon’s report stated that defendant’s
       verbal IQ was 84, which is “higher than borderline range.” She also conceded that the report
       found that defendant’s “definitive verbal formulation and vocabulary were in the mildly
       effective range” and his “verbal concept formation and abstraction were in the low average
       range.”
¶ 39       The following colloquy then took place between the court and Dr. Grossman:
                   “Q. [THE COURT:] Well, Hanlon’s reports were, you said when, again, I’m
               sorry?
                   A. [DR. GROSSMAN:] It was issued 9-16-08.
                   Q. What test or material did you look at that preceded that and by how far did it
               precede it?



                                                - 11 -
                  A. I saw the material from 2003 on, I believe, but I can figure it out. I saw
              documentation from 2003, 2004, 2005, 2007.
                  Q. What was the source of that documentation?
                  A. The school records, the disability records, the previous–the IEP records.
                  Q. And did you reanalyze that data?
                  A. I did not because all three of the IQ tests were exactly the same, within two
              points of each other.
                  Q. Even on the verbal?
                  A. Yes, had there been a discrepancy, I would have probably looked more closely.
                  Q. What was the nature of his basis for receiving Social Security?
                  A. Disability on the basis of a low IQ and specific learning disability.
                                                   ***
                  It was called various things in the records. In Dr. Hanlon’s it was called nonverbal
              learning disorder.
                  Q. Nonverbal?
                  A. Yes.
                  Q. What else is it called?
                  A. Nonspecific learning disorder, there was–it was called various names. But
              always there is records since 2003 of a learning disorder for which he received
              entitlements and documentation of the same IQ over those years.
                  Q. And that disability would have been predicated on the opinion of a psychiatrist
              or medical doctor?
                  A. Probably a psychologist, but I don’t know that for sure.
                  Q. You don’t know?
                  A. I don’t know that for sure under oath, but it was probably a psychologist.
                  THE COURT: Anything else?
                  MS. MAHONEY: No.
                  THE COURT: Counsel?
                  MR. LANDRUM: No, Judge.
                  THE COURT: Thanks, Doctor, have a good day.
                  THE WITNESS: Thank you.”
¶ 40       After Dr. Grossman’s testimony concluded, the defense rested. The State then presented
       testimony from Dr. Stafford Henry, whom the parties stipulated was an expert in forensic
       psychiatry. Dr. Henry testified that he was retained by the State to perform a psychiatric
       evaluation of defendant and offer opinion regarding defendant’s ability to understand the
       consequences of entering into a blind guilty plea in June 2009. To conduct his evaluation, Dr.
       Henry reviewed the transcripts of defendant’s plea and sentencing hearings, reports generated
       by Dr. Hanlon and Dr. Grossman and their testimony, records from the Chicago police
       department and Chicago public schools, and defendant’s PSI. In addition, Dr. Henry also
       conducted a three hour face-to-face interview with defendant on September 15, 2010.
¶ 41       The bulk of Dr. Henry’s testimony concerned his interview with defendant, during which
       time defendant was asked to summarize or explain the admonishments he received from the

                                                 - 12 -
       trial court. The testimony elicited from Dr. Henry by the State on direct examination is
       irrelevant to the legal issues raised by defendant in this appeal, although we note that based
       in large part on the interview, Dr. Henry concluded “to a reasonable degree of medical and
       psychiatric certainty *** that at the time of the June 2009 plea hearing, [defendant]
       understood the nature and purpose of the proceedings against him, that [defendant] had a
       complete and total comprehension of the terms and conditions of a blind plea and that he was
       cognizant of the potential ramifications of entering such a plea.”
¶ 42        On cross-examination, Dr. Henry testified that during the interview, defendant explained
       that he understood that the sentencing parameters for the firearm enhancement were
       disjunctive, i.e., that the trial court could sentence him to 25 years or life in prison. Dr. Henry
       attempted to clarify that his “understanding” of what defendant said was that defendant
       understood “that the range was between 25 to life in prison.” He admitted, however, that
       defendant’s actual explanation of the admonishment was “I can get 25 years or life.”
¶ 43        On January 20, 2010, the trial court denied defendant’s motion to vacate his plea. On July
       22, 2013, this court vacated the trial court’s order denying defendant’s motion to reconsider
       sentence because the motion was not accompanied by a certificate of compliance as required
       by Illinois Supreme Court Rule 604(d) (eff. Feb. 26, 2013). People v. Pace, No. 1-11-0415
       (2013) (unpublished order under Supreme Court Rule 23). Defendant, through counsel, filed
       a new motion to reconsider sentence on September 18, 2014, arguing that the 100-year
       sentence was improper because the court (1) based its decision on personal observations,
       subjective beliefs, outside news reports, and generalized notions about youth violence; (2)
       abandoned its role as neutral arbiter by cross-examining Dr. Hanlon; (3) improperly drew an
       adverse inference that defendant lacked remorse based on his decision to not speak in
       allocution; and (4) failed to give appropriate weight to mitigating factors and defendant’s
       rehabilitative potential.
¶ 44        The court held a hearing on defendant’s motion on December 15, 2014. During the
       hearing, the court again explained the reasoning behind its sentencing decision, stating:
               “[T]he sentence was given to reflect the magnitude of the action he took. And that’s
               it. I tried to see my way to hope that he could find some rehabilitation.
                    But at a 57 year minimum sentence that couldn’t have been a concern of the state
               legislature. And it’s appropriate that it wouldn’t be under a crime like this.
                    This is a brutal offense. It was a brutal offense. And the brutality of it is clear as
               day when you look at the video, and when you listen to the young women that were
               shot and you watch what defendant did.
                    I have compassion for his circumstances. He performed poorly in school. I have
               compassion for his economic circumstances. There are a thousand young men and
               women confronting the same things that he confronted that day and that take a
               different path.
                    And this sentence is for them as much as it is for the people that he struck that
               day.”
¶ 45        At the conclusion of the hearing, the court denied defendant’s motion. This appeal
       followed.




                                                   - 13 -
¶ 46                                            ANALYSIS
¶ 47       Defendant presents five arguments on appeal. First, he contends that the trial court erred
       during the sentencing hearing by (1) considering its personal beliefs and private
       investigations; (2) abandoning its role as neutral arbiter by cross-examining Dr. Hanlon; (3)
       punishing the defendant for declining to speak in allocution; and (4) failing to consider
       mitigating evidence. Second, he argues that the trial court violated his right to due process by
       cross-examining Dr. Grossman during the hearing on his motion to withdraw his guilty plea.
       Third, he argues that his guilty plea was not knowing and voluntary because the trial court
       (1) did not admonish him about the possibility of consecutive sentencing; (2) allowed him to
       plead guilty to two counts of first degree murder; and (3) led him to believe that the
       minimum sentence for first degree murder was 20 or 25 years’ imprisonment, when it was
       actually 45 years. Fourth, he contends that the automatic transfer provision of the Juvenile
       Court Act is unconstitutional. Fifth, he argues that the mandatory firearm enhancement, in
       conjunction with mandatory consecutive sentencing statute, as applied to him, violates his
       rights under the eighth amendment to the United States Constitution and the proportionate
       penalties clause of the Illinois Constitution.

¶ 48                             A. Validity of Defendant’s Guilty Plea
¶ 49        We first consider whether the trial court erred by denying defendant’s motion to vacate
       his guilty plea. Defendant contends that his plea was not knowing and voluntary because the
       trial court: (1) failed to admonish him that he was subject to mandatory consecutive
       sentencing which required that he serve a minimum 57-year sentence; (2) permitted him to
       plead guilty to two counts of murder when there was only one victim; and (3) admonished
       him in a manner which caused him to believe that the minimum sentence he faced for first
       degree murder was 20 or 25 years, when the minimum sentence for first degree murder was
       in fact 45 years.
¶ 50        The decision to enter a guilty plea is a “ ‘grave and solemn act.’ ” People v. Evans, 174
       Ill. 2d 320, 326 (1996) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). “It is not
       a ‘temporary and meaningless formality reversible at the defendant’s whim.’ ” (Emphasis in
       original.) Id. (quoting United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975)). “A
       defendant does not have an absolute right to withdraw his guilty plea ***.” People v.
       Manning, 227 Ill. 2d 403, 412 (2008). Instead, leave to withdraw a guilty plea is only granted
       when necessary to “correct a manifest injustice under the facts involved” (People v.
       Hillenbrand, 121 Ill. 2d 537, 545 (1988)), or where the plea “was not constitutionally
       entered” (Manning, 227 Ill. 2d at 412). In Boykin v. Alabama, the United States Supreme
       Court held that a court cannot, consistent with due process, accept a guilty plea unless there
       has been an affirmative showing that the defendant’s decision to plead guilty was made
       “ ‘intelligently and understandingly.’ ” 395 U.S. 238, 242 (1969) (quoting Carnley v.
       Cochran, 369 U.S. 506, 516 (1962)); see People v. Shamlodhiya, 2013 IL App (2d) 120065,
       ¶ 17 (“Due process requires that a guilty plea be knowing and voluntary.”).
¶ 51        In response to Boykin, the Illinois Supreme Court adopted Rule 402. People v. Whitfield,
       217 Ill. 2d 177, 188 n.3 (2005); see Ill. S. Ct. R. 402 (eff. July 1, 1997). Rule 402 contains
       several admonishments which a trial court must give to a defendant in open court prior to
       accepting a guilty plea. The purpose of these admonishments “is to ensure that a defendant
       understands his plea, the rights he has waived by pleading guilty and the consequences of his

                                                  - 14 -
       action.” People v. Dougherty, 394 Ill. App. 3d 134, 138 (2009). Under Rule 402(a)(2), a trial
       court must admonish a defendant about “the minimum and maximum sentence prescribed by
       law, including, when applicable, the penalty to which the defendant may be subjected
       because of prior convictions or consecutive sentences.” Ill. S. Ct. R. 402(a)(2) (eff. July 1,
       1997).
¶ 52       Literal compliance with the Rule 402 admonishments is not necessary to satisfy the
       requirements of due process. People v. Burt, 168 Ill. 2d 49, 64 (1995); Dougherty, 394 Ill.
       App. 3d at 138. Instead, “substantial compliance” is sufficient. Dougherty, 394 Ill. App. 3d at
       138. “ ‘Substantial compliance’ means that although the trial court did not recite to the
       defendant, and ask defendant if he understood, all the components of Rule 402(a), the record
       nevertheless affirmatively and specifically shows that the defendant understood them.” Id.
¶ 53       Defendant contends that he must prevail if the trial court’s admonishments did not
       substantially comply with Rule 402. Citing People v. Kidd, 129 Ill. 2d 432 (1989), defendant
       argues that “where *** a court fails to substantially comply with Rule 402, a defendant’s plea
       is not knowingly and voluntarily entered and the prejudice is manifest absent such a
       showing.”
¶ 54       Defendant is incorrect. Illinois courts have repeatedly held that a defendant must
       demonstrate prejudice as a result of an improper Rule 402 admonishment in order to obtain
       reversal of a trial court order denying a motion to vacate a guilty plea. For example, in
       People v. Davis, decided two years after Kidd, the Illinois Supreme Court explained that
       “[t]he failure to properly admonish a defendant, alone, does not automatically establish
       grounds for reversing the judgment or vacating the plea. *** Whether reversal is required
       depends on whether real justice has been denied or whether defendant has been prejudiced by
       the inadequate admonishment.” 145 Ill. 2d 240, 250 (1991); see also People v. Grant, 2015
       IL App (4th) 140971, ¶ 29 (“[A]n imperfect admonishment does not violate due process
       where real justice has not been denied or defendant has not shown prejudice.”); People v.
       Holloway, 2014 IL App (1st) 131117, ¶ 29 (reversing trial court’s denial of motion to vacate
       guilty plea because defendant was prejudiced by trial court’s failure to properly admonish
       defendant in compliance with Rule 402); cf. People v. Reid, 2014 IL App (3d) 130296, ¶ 17
       (finding that defendant’s waiver of right to pursue appellate and postconviction relief was
       knowing, intelligent and voluntary where defendant could not show he was prejudiced by
       inadequate admonishments).
¶ 55       Kidd is not to the contrary. In Kidd, the defendant pled guilty to several crimes, including
       multiple counts of first degree murder. 129 Ill. 2d at 434. During a Rule 402 conference, the
       defendant expressed concern that he would receive a sentence of life in prison without the
       possibility of parole. Id. at 440. In response, the court told defendant “ ‘[t]hat’s not
       necessarily what the sentence may be. That question would be a question for a jury to decide,
       not for me to make that decision.’ ” Id. The court later told the defendant “ ‘whether or not a
       life sentence, that is something that [is] controlled by the statute. I have no control over
       that.’ ” Id. The defendant agreed to plead guilty and the matter was set for a sentencing
       hearing during which a jury would decide whether to impose a death sentence. Id. at 441.
       Three days later, the defendant sought to vacate his plea on the basis that he did not
       understand the court’s admonishment regarding the possibility of a life sentence without
       parole. Id.


                                                  - 15 -
¶ 56        The Illinois Supreme Court held that the trial court’s admonishment was improper
       because “[n]owhere on the record did the trial court inform defendant, before accepting his
       pleas, that the court must sentence him, at a minimum, to mandatory natural life
       imprisonment.” Id. at 443. The court noted that, although the trial court informed defendant
       that the maximum penalty he faced was a death sentence, it never informed him that the
       minimum sentence he faced was life in prison. Id. at 443-44. The court concluded that
       “[b]ecause the trial court did not comply with the requirements of Rule 402, the denial of
       defendant’s motion to withdraw his pleas was an abuse of discretion.” Id. at 447.
¶ 57        Although the court did not explicitly discuss the prejudice requirement, in the course of
       distinguishing People v. Walker, 109 Ill. 2d 484 (1985), a case which the State principally
       relied on, the court stated that the defendant in Walker “had no expectations that were
       denied” and emphasized that “[t]he same affirmative showing cannot be made here.” Kidd,
       129 Ill. 2d at 445. By distinguishing Walker on the basis that the trial court’s admonishments
       in the case before it thwarted the defendant’s expectations in entering into the plea, the court
       engaged in a sub silentio prejudice analysis.
¶ 58        Thus, in considering whether reversal is required on the basis that the trial court did not
       properly admonish defendant pursuant to Rule 402, we must consider whether (1) the trial
       court’s admonishments substantially complied with Rule 402 and, (2) if not, whether the
       defendant suffered prejudice as a result. We review whether the trial court complied with
       Rule 402 de novo. People v. Chavez, 2013 IL App (4th) 120259, ¶ 14. We review the trial
       court’s decision to deny defendant’s motion to vacate his guilty plea for abuse of discretion.
       People v. Delvillar, 235 Ill. 2d 507, 519 (2009).
¶ 59        We first address whether defendant is entitled to reversal on the basis that the court did
       not admonish him about consecutive sentencing. Although the record clearly shows that the
       trial court admonished defendant about the sentencing range for each crime to which he pled
       guilty, nothing in the trial court’s admonishment specifically suggested to defendant the
       possibility that he was subject to consecutive sentencing. Accordingly, we find that the trial
       court’s admonishments did not substantially comply with Rule 402.
¶ 60        Defendant’s argument falters, however, on the prejudice prong of the analysis.
       Defendant’s appellate brief does not explain how he was prejudiced by the trial court’s
       inadequate admonishments. Accordingly, the prejudice issue is forfeited. See Ill. S. Ct. R.
       341(h)(7) (eff. Feb. 6, 2013) (“Points not argued are waived and shall not be raised in the
       reply brief, in oral argument, or on petition for rehearing.”); BAC Home Loans Servicing, LP
       v. Mitchell, 2014 IL 116311, ¶ 23.
¶ 61        Forfeiture aside, we would still reject defendant’s argument because he cannot show that
       he suffered prejudice. The Illinois Supreme Court has yet to set forth a clear definition of
       prejudice in the Rule 402 context. Nonetheless, several cases from the supreme and appellate
       court–namely People v. Williams, 2012 IL App (2d) 110559 (Anthony Williams), People v.
       Torres, 228 Ill. 2d 382 (2008), People v. Davis, 145 Ill. 2d 240 (1991), People v. Williams,
       2014 IL App (3d) 120824 (Adrian Williams), and People v. Baker, 133 Ill. App. 3d 620
       (1985)–provide guidance on the issue.
¶ 62        In Anthony Williams, the defendant was charged with two counts of retail theft. 2012 IL
       App (2d) 110559, ¶ 3. The defendant pled guilty to one count of retail theft and was
       admonished that he was eligible for Treatment Alternatives to Street Crimes (TASC), an
       alternative sentencing program. Id. ¶ 5. In fact, the defendant was not eligible for TASC due

                                                  - 16 -
       to his criminal record. Id. ¶ 11 n.1. The court sentenced the defendant to six years and six
       months in prison. Id. ¶ 8. The defendant filed a motion to vacate his plea, arguing that he was
       prejudiced by the court’s admonishment because “ ‘[h]ad [he] known, at the time he entered
       the plea, that TASC was not a valid sentencing option, he could have more accurately
       considered the sentencing paradigm and determined his potential sentencing range was great
       enough that it would be more advantageous to elect to stand trial.’ ” Id. ¶ 11. The trial court
       denied the motion and the appellate court affirmed. The appellate court explained that in
       order to show prejudice, the defendant was required to allege that he would not have pled
       guilty had he been properly admonished. Id. ¶ 18 (citing Davis, 145 Ill. 2d at 250). The court
       held that the defendant could not show that he suffered prejudice because he did not allege
       that he would not have pled guilty had he been properly admonished. Id.
¶ 63       In Torres, the defendant entered into a blind guilty plea to two counts of first degree
       murder and was sentenced to 45 years’ imprisonment. 228 Ill. 2d at 384. At the plea hearing,
       the trial court admonished the defendant that the sentencing range for first degree murder was
       20 to 60 years’ imprisonment. Id. at 398. However, the actual minimum sentence the
       defendant was subject to was 45 years’ imprisonment because the mandatory firearm
       enhancement applied. Id. The defendant argued that he should have been permitted to vacate
       his guilty plea because the trial court did not properly admonish him about the correct
       minimum sentence he faced.
¶ 64       The Illinois Supreme Court disagreed, reasoning that the trial court “sentenced defendant
       exactly as he had been admonished.” Id. at 400. That is, the defendant was advised that he
       faced 20 to 60 years in prison, and he was sentenced to 45 years’ imprisonment, which was
       within the sentencing range set forth in the court’s admonishments. Id. at 400-01.
¶ 65       In Davis, the defendant was charged with residential burglary and burglary. 145 Ill. 2d at
       243. The defendant pled guilty to burglary and the State dismissed the residential burglary
       charge. The record revealed that the defendant pled guilty on the mistaken belief that he was
       eligible to participate in TASC, when defendant was in fact ineligible for TASC as well as
       probation due to his criminal history. Id. at 243, 245-49. The court ultimately sentenced the
       defendant to 10 years’ imprisonment. Id. at 243.
¶ 66       The defendant filed a motion to withdraw his guilty plea, which the trial court denied. Id.
       The supreme court found that the trial court’s admonishments were improper and that the
       defendant suffered prejudice because he alleged that he would not have pled guilty if he
       knew he was ineligible for TASC and due to his misapprehension, “he did not attempt to
       negotiate a lesser term of incarceration, and forwent the opportunity to go to trial, where he
       may have been acquitted.” Id. at 250.
¶ 67       In Adrian Williams, the defendant was charged with unlawful delivery of a controlled
       substance. 2014 IL App (3d) 120824, ¶ 3. At a pretrial hearing, the State informed the court
       that the defendant, due to his criminal history, was eligible for Class X and extended term
       sentencing. Id. ¶ 4. Accordingly, the court admonished the defendant that he was subject to a
       sentencing range of 6 to 60 years’ imprisonment. Id. The defendant subsequently entered into
       a partially negotiated plea whereby he pled guilty in exchange for a sentencing cap of 25
       years. Id. ¶ 5. Thereafter, the defendant filed a motion to vacate his plea on the basis that he
       was erroneously admonished that he faced a maximum 60 year sentence. Id. ¶ 6.
¶ 68       The appellate court held that the defendant was improperly admonished because he was
       not eligible for extended term sentencing. Id. ¶ 22. Accordingly, the court found that the

                                                  - 17 -
       maximum sentence defendant faced was 30 years’ imprisonment. Id. The court held that the
       defendant was prejudiced by the improper admonishment because he was “under the
       misapprehension that he was negotiating a 35-year reduction of his maximum possible
       sentence, not a mere 5 years.” Id. ¶ 26. The court found that significant because “defendant
       here lost the opportunity to negotiate a lesser term of incarceration.” Id.
¶ 69       Finally, in Baker, the defendant pled guilty but mentally ill to home invasion, indecent
       liberties with a child, and attempted deviate sexual assault. 133 Ill. App. 3d at 621. The
       parties had no negotiations regarding the sentence to be imposed. Id. When it admonished the
       defendant, the court did not tell him that he was subject to consecutive sentencing. The court
       did, however, inform him that he faced up to 30 years’ imprisonment. Id. at 622. The court
       ultimately sentenced the defendant to six years’ imprisonment for home invasion and four
       years’ imprisonment for indecent liberties with a child and attempted deviate sexual assault.
       Id. at 621. The sentences for indecent liberties with a child and attempted deviate sexual
       assault were to run concurrent to each other, but consecutive to the sentence for home
       invasion. Id. The defendant subsequently filed a motion to vacate his plea on the basis that
       the court did not admonish him about the possibility of consecutive sentencing, which the
       court denied. Id. The appellate court affirmed, reasoning that the defendant could not show
       that he was prejudiced by the allegedly deficient admonishment because he was informed
       that he could receive a sentence of up to 30 years’ imprisonment, and his aggregate sentence
       was less than 30 years. Id. at 622.
¶ 70       Based on the cases discussed above, we find three reasons why defendant cannot
       demonstrate that he was prejudiced by the trial court’s improper admonishments. First,
       defendant did not claim anywhere in his motion to vacate or appellate brief that that he would
       not have pled guilty had he received a proper admonishment. This is fatal to defendant’s
       argument. See Davis, 145 Ill. 2d at 250; Anthony Williams, 2012 IL App (2d) 110559, ¶ 18
       (“Here, defendant does not allege that he would not have pleaded guilty. *** This defeats his
       claim of prejudice.”); see also People v. Mendoza, 342 Ill. App. 3d 195, 202 (2003) (finding
       that defendant could not show prejudice because he did not allege that he would not have
       pled guilty in face of proper admonishment).
¶ 71       Second, the record establishes that the trial court, when admonishing defendant about the
       sentencing range he faced as a result of the firearm enhancement, informed defendant that the
       maximum sentence the court could impose was life in prison. Defendant has presented no
       argument that the trial court’s admonishment in that respect was inaccurate. See Adrian
       Williams, 2014 IL App (3d) 120824, ¶ 26. Thus, the trial court did not impose a sentence on
       defendant that exceeded the sentence defendant was told he could receive. To the contrary,
       defendant’s sentence was consistent with the court’s admonishment that he could receive up
       to a life sentence as a result of the firearm enhancement. See Torres, 228 Ill. 2d at 400.
       Because defendant’s sentence was consistent with at least one of the sentencing parameters
       of which he was admonished, he cannot show that he suffered prejudice. Id. at 400-01; see
       also Baker, 133 Ill. App. 3d at 622.
¶ 72       Third, defendant entered into a blind plea. Defendant was admonished that there was no
       agreement between him and the State or court regarding the sentence he would receive. Thus,
       defendant had no reasonable expectations regarding the sentence he would receive.
       Therefore, he cannot argue that his expectations were thwarted or that he would have


                                                 - 18 -
       negotiated a more favorable plea had he received a proper admonishment. See Adrian
       Williams, 2014 IL App (3d) 120824, ¶ 26; see also Kidd, 129 Ill. 2d at 445.
¶ 73        We next consider whether reversal is required because the trial court permitted defendant
       to plead guilty to two counts of first degree murder or because it failed to admonish
       defendant of the correct minimum sentence he faced for first degree murder. Defendant did
       not raise either of these arguments in his motion to vacate. Accordingly, defendant has
       forfeited these arguments. See Ill. S. Ct. R. 604(d) (eff. Dec. 11, 2014). Defendant argues that
       we may nevertheless consider these claims, either as plain error or ineffective assistance of
       counsel. We consider these arguments in turn.
¶ 74        Under the plain error doctrine, “we may review plain errors affecting substantial rights,
       though not objected to at trial or in a post-trial motion.” People v. Fuller, 205 Ill. 2d 308, 343
       (2002); see Ill. S. Ct. R. 615(a). We may review claims under the plain-error doctrine when
       “(1) a clear or obvious error occurred and the evidence is so closely balanced that the error
       alone threatened to tip the scales of justice against the defendant, regardless of the
       seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious
       that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial
       process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551,
       565 (2007).
¶ 75        The second prong of the plain error doctrine has been equated with structural error.
       People v. Thompson, 238 Ill. 2d 598, 613-14 (2010). “Structural error is a systemic error that
       erodes the integrity of the judicial process” and which so undermines the fairness of the
       underlying proceeding as to necessitate automatic reversal. People v. Downs, 2014 IL App
       (2d) 121156, ¶ 31. Structural error has only been recognized in a narrow subset of cases,
       namely those involving the complete denial of counsel, trial before a biased judge, racial
       discrimination in the selection of a grand jury, denial of the right of self-representation at
       trial, denial of a public trial, and where the trial court propounds a defective reasonable doubt
       instruction. Id.
¶ 76        Defendant’s plain error arguments consist entirely as follows:
                “However, this Court can reach the merits of this issue as plain error because a
                court’s failure to admonish a defendant pursuant to Rule 402 affects substantial
                rights. ILL. SUP. CT. R. 615(a) (2008); see also People v. Piatkowski, 225 Ill. 2d
                551, 564 (2007); People v. Waldorf, 94 Ill. App. 3d 976, 981 (1st. Dist. 1981)
                (applying plain error test to issue of trial court’s compliance with Rule 402).”
       In People v. Nieves, the Illinois Supreme Court held that the defendant’s plain error argument
       was waived because it consisted of a single sentence and “neither argue[d] that the evidence
       was closely balanced nor explain[ed] why the error [was] so severe that it must be remedied
       to preserve the integrity of the judicial process.” 192 Ill. 2d 487, 503 (2000). We find that
       defendant has similarly waived his plain error argument here. Defendant does not argue that
       the evidence in the case is closely balanced, and People v. Waldorf, 94 Ill. App. 3d 976
       (1981), did not hold that an improper Rule 402 admonishment constitutes structural error.
       Accordingly, we find that defendant has forfeited his plain error argument.
¶ 77        Alternatively, defendant contends that his lawyer rendered ineffective assistance by
       failing to raise these issues in the motion to vacate his guilty plea. Ineffective assistance of
       counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S.
       668 (1984). To prevail on such a claim, a criminal defendant must show that trial counsel’s

                                                   - 19 -
       performance was objectively deficient and “that there is a reasonable probability that, but for
       counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
       at 694; People v. Stewart, 141 Ill. 2d 107, 118 (1990).
¶ 78        Reaching the merits of defendant’s remaining arguments under the deficiency prong of
       Strickland, we find that defendant’s ineffective assistance of counsel claim fails because,
       even assuming that the trial court’s admonishments were improper, defendant cannot show
       that he suffered prejudice.1 With regard to his claim that the trial court permitted him to
       plead guilty to two counts of first degree murder, we note that defendant has failed to
       articulate how he was prejudiced or allege that he would not have pled guilty had the court
       admonished him differently. In light of this failure, we cannot find that defendant’s counsel
       was constitutionally deficient for not raising this issue before the trial court.
¶ 79        Nor did defendant’s counsel render ineffective assistance by failing to argue that the trial
       court’s failure to advise defendant of the correct minimum sentence for first degree murder
       rendered his plea involuntary. Because defendant was admonished that he faced up to life in
       prison and his sentence was consistent with that admonishment, defendant cannot show that
       he suffered prejudice. And, because defendant’s underlying argument lacks merit, his counsel
       was not ineffective for failing to raise it in the motion to vacate. See People v. Griffin, 148
       Ill. 2d 45, 57 (1992) (attorney’s failure to challenge voluntariness of postarrest statement not
       ineffective assistance because argument would have been futile); People v. Rucker, 346 Ill.
       App. 3d 873, 889 (2003) (attorney’s failure to file motion to suppress not ineffective
       assistance because motion would have been futile).
¶ 80        In sum, we find that the trial court did not abuse its discretion by denying defendant’s
       motion to vacate his guilty plea.

¶ 81                                B. Validity of Defendant’s Sentence
¶ 82        We next consider whether the trial court erred by denying defendant’s motion to
       reconsider his sentence. Defendant specifically argues that the court committed error during
       the sentencing hearing by (1) basing its sentencing decision on its personal beliefs and
       private investigations; (2) abandoning its role as neutral arbiter; (3) punishing him for
       declining to speak in allocution; and (4) failing to consider mitigating evidence.
¶ 83        A trial court has “broad discretionary powers in imposing a sentence, and its sentencing
       decisions are entitled to great deference.” People v. Alexander, 239 Ill. 2d 205, 212 (2010).
       We must give “substantial deference” to the trial court’s sentencing decision “because the
       trial judge, having observed the defendant and the proceedings, is in a much better position to
       consider factors such as the defendant’s credibility, demeanor, moral character, mentality,
       environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36. Accordingly, we will
       not disturb the trial court’s sentencing decision absent an abuse of discretion. Id.

¶ 84               1. Whether the Trial Judge Abandoned His Role as Neutral Arbiter
¶ 85       We first consider defendant’s contention that the trial judge abandoned his role as neutral
       arbiter by examining Dr. Hanlon during the sentencing hearing. “[A] trial judge has the right


           We refer to “prejudice” as that term is used in the context of a Rule 402 analysis and not the second
           1

       prong of a Strickland claim.

                                                      - 20 -
       to question witnesses in order to elicit the truth or to bring enlightenment on material issues
       which seem obscure.” People v. Palmer, 27 Ill. 2d 311, 314 (1963); see Ill. R. Evid. 614(b)
       (eff. Jan. 1, 2011). Whether such an examination was proper is determined on a case-by-case
       basis and rests largely in the court’s discretion. Palmer, 27 Ill. 2d at 315.
¶ 86        In arguing that the trial court’s conduct was improper, defendant relies principally upon
       People v. Jackson, 409 Ill. App. 3d 631 (2011). In Jackson, the appellate court held that the
       trial judge abandoned his role as neutral arbiter “by adopting a prosecutorial role when
       questioning defendant’s expert witness.” Id. at 647. Several pertinent factors affected the
       court’s analysis. First, the court noted that the “tone and manner” of questions interposed by
       the court to the defendant’s expert “exhibit[ed] bias that is more similar to a cross-examining
       prosecutor than an impartial jurist.” Id. at 648. The court stated that the court’s questions
       were “argumentative and showed a disregard and unfavorable bias.” Id. As an example, the
       court cited a colloquy during which the court trapped the defense’s expert witness by asking
       the witness about medications the defendant was taking and then impeaching him by pointing
       out that he was not a physician and thus was not qualified to testify about the effects of
       medications because he could not prescribe medications. Id. at 636, 648. The court also
       pointed out that the trial judge asked the witness who had hired him, which could have only
       served to expose the witness’s possible bias in favor of the defendant. Id. at 648. As
       additional evidence that the trial judge was biased against the defendant, the appellate court
       noted that the trial judge repeatedly referred to the defendant’s shooting as a “ ‘murder,’ ”
       despite the fact that the trial had not ended. Id. at 649.
¶ 87        We find, for several reasons, that Jackson is distinguishable from the present case. First,
       we see no evidence in the record that the trial court prejudged the outcome of the case. To the
       contrary, by asking Dr. Hanlon whether defendant’s gang membership contradicted
       testimony that defendant’s disability would hinder his ability to socialize, the judge gave Dr.
       Hanlon an opportunity to clarify his testimony. Rather than show bias, this demonstrates
       open-mindedness. Similarly, there is no evidence that the court attempted to trap Dr. Hanlon
       by inviting him to testify about matters outside his area of expertise. Rather, the court’s
       questions were focused precisely on the testimony Dr. Hanlon had only moments before
       given in response to questions by the State and defense counsel. And importantly, the court
       did not ask Dr. Hanlon questions designed exclusively to expose bias in favor of defendant.
¶ 88        It is true that the court repeatedly used leading questions when examining Dr. Hanlon.
       Defendant suggests that such questions were “by definition *** not open minded.” But when
       considering whether the trial court exceeded its authority in questioning a witness, we are not
       bound down by per se rules, such as the absolute rule against leading questions defendant
       urges us to adopt. Instead, our consideration of “[w]hether a trial court’s questioning of a
       witness is appropriate depends on the facts and circumstances of each case and rests largely
       in the discretion of the trial court.” Id. at 647; see People v. Smith, 299 Ill. App. 3d 1056,
       1062 (1998) (“It is not per se error for a trial judge to question a witness.”). Considered
       under the totality of the circumstances, we do not believe that the trial court’s use of leading
       questions was improper.
¶ 89        Nor do we believe that reversal is necessary because the court’s questions elicited
       testimony favorable to the State. Certain facts contained in defendant’s presentence report
       could have been viewed as contradicting Dr. Hanlon’s testimony that defendant had
       difficulty socializing. Specifically, the report indicated that defendant had a good relationship

                                                  - 21 -
       with his mother, that he was on numerous school athletic teams from sixth through ninth
       grade, and that he participated in music and a school play during the eighth grade. The report
       further indicated that defendant enjoyed spending his free time “going to the center,” where
       he would spend his time doing homework, playing basketball, and “be up under a girl and
       chill.” The nature of these activities suggests that defendant possessed at least a modicum of
       social skills, and thus superficially undercut Dr. Hanlon’s testimony. Under these
       circumstances, it was not improper for the trial judge to examine Dr. Hanlon to better
       understand his testimony, even if the resulting colloquy produced testimony unfavorable to
       defendant. See People v. Sutton, 260 Ill. App. 3d 949, 959-60 (1994) (“The trial court does
       not *** assume the role of prosecutor merely because its questions solicit evidence material
       to the State’s case.”). Based on the foregoing, we find that the trial court did not abandon its
       role as neutral arbiter.

¶ 90               2. Whether the Trial Court Failed to Consider Mitigating Evidence
¶ 91       We next consider whether the trial court committed error by failing to consider mitigating
       evidence. Under the proportionate penalties clause of the Illinois Constitution, a trial court
       must fix a defendant’s punishment “according to the seriousness of the offense and with the
       objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. “ ‘This
       constitutional mandate calls for the balancing of the retributive and rehabilitative purposes of
       punishment.’ ” People v. Calhoun, 404 Ill. App. 3d 362, 385 (2010) (quoting People v.
       Quintana, 332 Ill. App. 3d 96, 109 (2002)). That balancing, in turn, requires that the court
       engage in an inclusive, holistic consideration of “all of the factors in aggravation and
       mitigation, including, inter alia, the defendant’s age, demeanor, habits, mentality, credibility,
       criminal history, general moral character, social environment, and education, as well as the
       nature and circumstances of the crime and of defendant’s conduct in the commission of it.”
       Id. In accordance with these principles, a “ ‘sentencing authority may not refuse to consider
       relevant evidence presented in mitigation.’ ” Id. at 386 (quoting People v. Heinz, 391 Ill.
       App. 3d 854, 865 (2009)).
¶ 92       Though sentencing courts may not disregard mitigating evidence, they retain discretion to
       assign how much weight it carries. People v. Markiewicz, 246 Ill. App. 3d 31, 55 (1993).
       Accordingly, “the existence of mitigating factors does not automatically oblige the trial court
       to reduce a sentence from the maximum allowed.” Id. Moreover, when the defendant has
       presented mitigating evidence to the court, it is presumed that the court considered the
       evidence. Id.; see also People v. Willis, 210 Ill. App. 3d 379, 389 (1991); People v. Baker,
       114 Ill. App. 3d 803, 811 (1983). The presumption that the trial court considered all
       mitigating evidence may be rebutted, but to do so the defendant must point to evidence other
       than the sentence which the court imposed. Markiewicz, 246 Ill. App. 3d at 55. In other
       words, a harsh sentence, standing alone, does not show that the court ignored mitigating
       evidence.
¶ 93       In the present case, defendant argues that, given the length of his sentence (he will be 110
       years old when he is released), “[the trial judge’s] insistence that he considered [defendant’s]
       upbringing rings hollow.” We reject defendant’s argument because, as we explained above, a
       defendant cannot rebut the presumption that the court considered mitigating evidence by
       merely pointing to the harshness of the sentence imposed by the court.


                                                   - 22 -
¶ 94       Moreover, defendant’s contentions are affirmatively rebutted by the record. When the
       court began announcing its sentence, it prefaced its remarks by explaining that it would base
       defendant’s sentence on “the facts of the case,” the PSI, the victim impact statements, and the
       evidence and arguments in aggravation and mitigation. In his brief, defendant specifically
       argues that the court failed to consider the following mitigating factors: his (1) youth; (2)
       rehabilitative potential; (3) upbringing; (4) history of substance abuse; (5) disability; and (6)
       lack of a criminal record. However, evidence regarding each of these factors was presented to
       the court, either through argument by defense counsel or through the presentence report. In
       light of the court’s prefatory comments and the fact that the record establishes that the
       evidence highlighted by defendant was presented to the court, we find that the record
       conclusively establishes that the court considered all mitigating evidence presented by
       defendant.
¶ 95       Defendant also argues that the court’s statement that defendant’s sentence “serves two
       masters. One, that it is retributive, and two, that it is a message to those people in those dark
       alleys *** that people like you and I outnumber them by thousands and by millions” shows
       that the court did not consider his rehabilitative potential. This argument, however, ignores
       the judge’s statement that he would consider the mitigating evidence presented by defendant.
       Mitigating evidence is itself evidence of rehabilitative potential; thus, the court’s statement
       that it would consider evidence in mitigation was an implicit statement that it would consider
       defendant’s rehabilitative potential. See People v. Gaines, 88 Ill. 2d 342, 381-82 (1981)
       (statutory requirement that death penalty jury consider any relevant mitigating factors
       sufficient to satisfy constitutional muster under proportionate penalties clause); People v.
       Parker, 192 Ill. App. 3d 779, 791 (1989) (trial court’s consideration of presentence report
       and attorney’s argument reciting mitigating factors sufficient to show that court took
       defendant’s rehabilitative potential into account); see also People v. Boclair, 225 Ill. App. 3d
       331, 335 (1992) (“[T]he trial court is not required to *** make an express finding that the
       defendant lacked rehabilitative potential [citation].”). Understood in this light, the court’s
       failure to state that the sentence furthered the purpose of rehabilitating defendant makes
       sense: if the court believed that defendant lacked rehabilitative potential, then there was no
       reason for the court to announce that defendant’s sentence furthered the purpose of
       rehabilitating him. Accordingly, we find that the court did not abuse its discretion by failing
       to consider mitigating evidence.

¶ 96                        3. Whether the Trial Court Violated Defendant’s
                                  Privilege Against Self-Incrimination
¶ 97       We next consider whether the trial court committed reversible error by punishing
       defendant for declining to speak in allocution. During the sentencing hearing, the trial court
       stated that it would consider “the defendant’s right of allocution, which he did not avail
       himself of.” Defendant, citing Mitchell v. United States, 526 U.S. 314 (1999), and People v.
       Swank, 344 Ill. App. 3d 738 (2003), contends that the trial court punished him for exercising
       his right to silence by (1) drawing from his silence the negative inference that he lacked
       remorse and (2) considering his purported lack of remorse as an aggravating factor.
¶ 98       The privilege against self-incrimination emanates from the self-incrimination clause of
       the fifth amendment to the United States Constitution, which provides that no person “shall
       be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V.

                                                  - 23 -
        The privilege, applicable to the states through the fourteenth amendment (Malloy v. Hogan,
        378 U.S. 1, 8 (1964)), was enacted as a repudiation of the practices of the Star Chamber and
        ecclesiastical courts of England (Andresen v. Maryland, 427 U.S. 463, 470 (1976); Ullmann
        v. United States, 350 U.S. 422, 428 (1956)), which followed “the inquisitorial method of
        putting the accused upon his oath and compelling him to answer questions designed to
        uncover uncharged offenses, without evidence from another source” (Doe v. United States,
        487 U.S. 201, 212 (1988)). The essence of the privilege is “ ‘the requirement that the State
        which proposes to convict and punish an individual produce the evidence against him by the
        independent labor of its officers, not by the simple, cruel expedient of forcing it from his own
        lips.’ ” (Emphasis in original.) Estelle v. Smith, 451 U.S. 454, 462 (1981) (quoting Culombe
        v. Connecticut, 367 U.S. 568, 581-82 (1961)). “[T]he privilege is fulfilled only when a
        criminal defendant is guaranteed the right ‘to remain silent unless he chooses to speak in the
        unfettered exercise of his own will, and to suffer no penalty ... for such silence.’ ” Id. at 468
        (quoting Malloy, 378 U.S. at 8).
¶ 99        Accordingly, “[t]he normal rule in a criminal case is that no negative inference from the
        defendant’s failure to testify is permitted.” Mitchell, 526 U.S. at 327-28; see Griffin v.
        California, 380 U.S. 609, 615 (1965) (holding that fifth amendment “forbids either comment
        by the prosecution on the accused’s silence or instructions by the court that such silence is
        evidence of guilt”). The privilege applies in noncapital sentencing hearings. Mitchell, 526
        U.S. at 326-27. Moreover, a criminal defendant does not waive the privilege by entering a
        guilty plea. Id. at 316.
¶ 100       Applying these principles, we hold that a criminal defendant’s privilege against
        self-incrimination is unconstitutionally infringed when (1) the defendant’s silence is used as
        evidence that he lacks remorse and (2) the trial court considers the defendant’s lack of
        remorse as an aggravating factor when imposing a sentence. A contrary rule would require
        criminal defendants to choose between (1) waiving their right to silence and speaking in
        allocution to express remorse (perhaps untruthfully), on the one hand, and (2) maintaining
        steadfast in their silence and thereby risking a lengthier sentence, on the other. Such an
        interpretation of the fifth amendment would be self-defeating, for as we have explained
        above, that text at its core means that the government, not the accused, must produce the
        evidence necessary to convict and impose a particular punishment. Estelle, 451 U.S. at 462.
        Thus, while a sentencing court may consider a defendant’s lack of remorse as an aggravating
        factor, evidence that the defendant lacks remorse must be drawn from some source other than
        the defendant’s silence during the sentencing hearing, such as the manner in which the
        defendant refers to a victim (see People v. Burgess, 176 Ill. 2d 289, 317 (1997)) or describes
        his crime (see People v. Neal, 111 Ill. 2d 180, 196 (1985)).
¶ 101       During the hearing on defendant’s motion to reconsider sentence, the trial court
        attempted to walk back its statement that it would consider defendant’s declination to speak
        in allocution, stating that it “really didn’t even play a role in my sentencing.” That statement
        is not sufficient to assuage our concerns, for as the court has previously explained, “[i]f it is
        on [the judge’s] tongue, it most assuredly must be on his mind.” People v. Wardell, 230 Ill.
        App. 3d 1093, 1103 (1992). In light of the trial court’s unequivocal statement during the
        sentencing hearing that it would consider “the defendant’s right of allocution, which he did
        not avail himself of,” we find that the record affirmatively shows that defendant was
        punished for choosing to remain silent during the sentencing hearing. Accordingly, we vacate


                                                   - 24 -
        defendant’s sentence and remand for resentencing.

¶ 102                         4. Whether the Trial Court Considered Improper
                                     Evidence at the Sentencing Hearing
¶ 103        We next consider whether the trial court considered its personal beliefs about gang
        violence and private investigations during the sentencing hearing. It is presumed that trial
        judges consider only competent evidence and discard incompetent evidence when rendering
        decisions. People v. Robinson, 30 Ill. 2d 437, 439 (1964); see People v. Naylor, 229 Ill. 2d
        584, 603 (2008). This presumption may be rebutted, however, when the record
        “ ‘affirmatively shows’ ” that the court considered improper evidence. Naylor, 229 Ill. 2d at
        603-04 (quoting People v. Gilbert, 68 Ill. 2d 252, 258-59 (1977)). “Consideration of an
        improper factor in aggravation affects a defendant’s fundamental right to liberty, and
        therefore, is an abuse of discretion.” People v. McAfee, 332 Ill. App. 3d 1091, 1096 (2002).
        The underlying question of whether the court in fact considered an improper factor presents a
        legal question which we review de novo. People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8.
¶ 104        The record from defendant’s sentencing hearing reveals that the trial court considered its
        personal feelings about gang violence as well as evidence that was not presented by either
        party. For example, immediately after discussing the sentencing factors the court would
        consider, the court noted that it was “saddened” and that it would “bring to bear” its
        “personal experience” of the effects of gang violence when sentencing defendant. Later, the
        trial judge discussed walking his daughter to school and then hypothesized about the feelings
        of other parents who take their children to school, stating “I know that on the date that Blair
        Holt was killed, his parents kissed him good-bye and told him they loved him.” The court
        also indicated that he was aligned with the victims’ families, declaring “[t]he Holts, their son,
        the other children on that bus, they define who I am.” The court then stated “[n]o amount of
        guns and no amount of young punks and no amount of gang members are ever going to find
        enough dark corners and dark alleys to hide in, because there are way, way more of us than
        there are of them.” (Emphasis added.) Referring to the surveillance video of the shooting, the
        judge again referred to his daughter, stating “I *** watched the man before me mount the
        steps to that bus, buses that I have mounted my whole life, buses that I have mounted with
        my daughter ***.”
¶ 105        Later, the court referred to the “fact” that “only one or two percent of the population
        make the lives of those there miserable by their conduct,” despite the fact that no evidence
        supporting that statement had been introduced by either party. Later, when discussing Dr.
        Hanlon’s testimony, the court declared that children from Deerfield also face challenges
        similar to those faced by defendant but have not committed transgressions like defendant’s.
        As with the 2% comment, this statement was not corroborated by any evidence introduced by
        either party. The court’s consideration of these evidentiary matters which were not supported
        by the evidence was improper. See People v. Dameron, 196 Ill. 2d 156, 179 (2001); People v.
        Rivers, 410 Ill. 410, 418-19 (1951).
¶ 106        Furthermore, when discussing Dr. Hanlon’s testimony, the trial court noted that it had
        “heard from doctors like Hanlon before” and referred to its “experience with their
        testimony.” Later, the court stated that it was “weary tired of watching doctors,
        psychologists, walk into my courtroom and somehow provide some shade for the conduct of
        a person like Michael Pace.” These statements show the trial judge, in rejecting Dr. Hanlon’s

                                                   - 25 -
        testimony, considered matters outside the record. This, too, was improper and constitutes
        prejudicial error. See People v. Steidl, 177 Ill. 2d 239, 266 (1997) (in postconviction hearing,
        trial judge’s consideration of prior knowledge of attorney’s performance in past cases
        improper; consideration of such evidence is prejudicial error); Jackson, 409 Ill. App. 3d at
        656 (Connors, J., dissenting) (holding that trial judge considered evidence outside record
        where the court stated “ ‘[m]ental acuity is constantly misrepresented in the circumstances of
        the testimony that I hear from the witness stand in this building’ ”).
¶ 107        We note again that the trial court began its comments by stating that its sentencing
        decision would be based on several valid considerations, such as the mitigating and
        aggravating evidence and the facts of the case. The State suggests that the court’s decision
        was based solely on those factors. But as we have explained, the record does not permit such
        a finding. The trial court’s extensive remarks about the problem of gang violence in Chicago,
        as well as its discussions of its personal views and experiences and consideration of evidence
        not located in the record, show that the judge considered much more than just the facts of the
        case and the mitigating and aggravating factors. See Wardell, 230 Ill. App. 3d at 1103.
¶ 108        As a result of these errors, defendant was denied a fair sentencing hearing. Consequently,
        we must vacate defendant’s sentence and remand for resentencing. We do not reach this
        conclusion lightly. “[W]here it can be determined from the record that the weight placed on
        the improperly considered aggravating factor was so insignificant that it did not lead to a
        greater sentence, remandment is not required.” People v. Bourke, 96 Ill. 2d 327, 332 (1983).
        The facts of this case would wrench the emotions of even the most staid jurist, and we
        appreciate and understand the sentiments which the able and experienced trial judge
        expressed during sentencing. However, based on the record before us, we cannot conclude
        that the trial court placed insignificant weight on the improper considerations we have
        described above. Indeed, the record suggests that the trial court placed significant emphasis
        on these considerations. It is noteworthy that the portion of the record in which the trial court
        announced its sentence goes on for 16 pages. At least four of those pages were devoted solely
        to the court discussing its personal feelings about gang violence; other large portions see the
        judge discussing the victims and stating that he was aligned with them. Under these
        circumstances, we must vacate the defendant’s sentence and remand the case for
        resentencing. In light of the issues described above, the defendant’s resentencing must be
        before a different judge. See People v. Negrete, 258 Ill. App. 3d 27, 32 (1994).

¶ 109                    C. Whether the Trial Court Remained Neutral During the
                          Hearing on Defendant’s Motion to Vacate Guilty Plea
¶ 110       We next consider whether the trial judge abandoned its role as neutral arbiter during the
        hearing on defendant’s motion to vacate his guilty plea by assuming the role of the
        prosecutor and improperly examining Dr. Grossman. We begin, however, with the issue of
        forfeiture. The State contends that defendant forfeited this issue by failing to object during
        the hearing and raise the issue in a posthearing motion. Generally, the failure to
        contemporaneously object and raise an issue in a posthearing motion results in the issue’s
        forfeiture on review. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However,
        “[a]pplication of the waiver rule *** is less rigid where the basis for the objection is the
        circuit judge’s conduct.” People v. Davis, 185 Ill. 2d 317, 343 (1998). We will therefore
        review the issue for error.

                                                   - 26 -
¶ 111        Defendant first complains that the trial judge rejected Dr. Grossman’s testimony because
        Dr. Grossman testified in response to one of the court’s questions that she did not ask
        whether defense counsel prepared defendant to receive his admonishments in advance of the
        guilty plea hearing. Defendant contends that this fact was irrelevant to the purpose of the
        hearing because the issue was whether defendant had the mental capacity to understand his
        admonishments. Defendant concludes by citing People v. Weakley, 45 Ill. 2d 549 (1970), for
        the proposition that “a plea’s voluntariness depends upon the trial court’s admonitions to the
        defendant in open court, not what counsel informed the defendant prior to the proceedings.”
¶ 112        Defendant’s reliance on Weakley is misplaced. In Weakley, the trial court failed to
        admonish the defendant about the maximum penalty he was facing. Id. at 552. The Illinois
        Supreme Court held that Illinois law requires that the court admonish the defendant about the
        maximum penalty possible, and that the court’s failure to do so could not be excused even
        when there was evidence that trial counsel explained to the defendant the maximum penalties
        he was facing. Id. at 552-53. Weakley thus had nothing to do with the defendant’s capacity to
        understand an admonishment.
¶ 113        “To enter a voluntary plea of guilty, a defendant must understand the nature of the
        proceedings against him and be competent to assist in his own defense.” People v. Shanklin,
        351 Ill. App. 3d 303, 306 (2004); People v. Perkins, 53 Ill. App. 3d 412, 415 (1977). It seems
        to us beyond dispute that evidence showing whether trial counsel conferred with defendant
        prior to the guilty plea hearing to explain to him the admonishments he would receive is
        directly relevant to the issue of whether defendant understood the trial court’s
        admonishments. Although such a conference is not required in every case, whether such
        discussions took place is probative of whether the defendant has the necessary mental
        capacity to enter a guilty plea. See People v. Palmer, 27 Ill. 2d 311, 313 (1963) (finding that
        defendant validly waived right to jury trial where defendant stated in open court that he did
        not understand admonishments in open court but record reflected that defense counsel had
        explained admonishments to defendant). Accordingly, we disagree with defendant and find
        that the trial court did not abuse its discretion by asking Dr. Grossman about the extent of
        defense counsel’s preplea discussions with defendant.
¶ 114        Defendant next contends that the trial judge exhibited bias because he asked Dr.
        Grossman leading questions. However, as we have explained, the mere fact that the trial
        court asked leading questions does automatically mean the judge was biased.
¶ 115        Defendant also argues that the judge’s bias was evident based on the fact that he
        repeatedly interrupted Dr. Grossman and “belittled” her by stating that one of his questions
        was “simple.” We disagree. When considered in context, it is clear that the trial court did not
        intend to insult Dr. Grossman, but rather sought to clarify its question. Toward the end of Dr.
        Grossman’s redirect examination, she testified that defendant would have an easier time
        understanding material if he had the opportunity to read it as opposed to only hearing it. The
        court then asked Dr. Grossman “[w]ouldn’t that be the case for everybody?” Dr. Grossman
        initially answered in the negative. After the court attempted to restate its question, Dr.
        Grossman answered “[t]hat’s not what I’m hearing here.” At that point, the court stated
        “[t]hat’s the question is asked you, though, and it’s a pretty simple one.” Dr. Grossman then
        answered “yes.” The fact that Dr. Grossman changed her answer shows that the court’s
        question needed clarification and is therefore evidence that the purpose of the court’s
        statements was not to belittle Dr. Grossman, but rather clarify his question.

                                                  - 27 -
¶ 116       Defendant also takes issue with the court’s questioning of Dr. Grossman regarding
        whether she previously offered expert testimony based on reports prepared by other people.
        Defendant argues that, because the State had stipulated to Dr. Grossman’s expertise, this
        question could only serve to undermine her testimony. We disagree.
¶ 117       It is widely accepted that “[a]n expert’s opinion is only as valid as the basis and reason
        for the opinion.” (Internal quotation marks omitted.) People v. Jones, 2015 IL App (1st)
        121016, ¶ 94 (quoting People v. Wright, 2012 IL App (1st) 073106, ¶ 127). In the present
        case, it is clear from the content of the court’s question that the judge was interested in
        confirming that Dr. Grossman had an adequate basis for her opinion that defendant lacked
        the capacity to understand his admonishments. Thus, this line of questioning was not
        improper.
¶ 118       Based on the foregoing, we find that the trial judge did not abandon his role as neutral
        arbiter during the hearing on defendant’s motion to vacate his guilty plea.

¶ 119              D. Whether the Automatic Transfer Statute, the Firearm Enhancement,
                        and the Consecutive Sentencing Statute Are Constitutional
¶ 120      We next consider defendant’s constitutional challenges to the automatic transfer statute,
        consecutive sentencing statute, and the mandatory firearm enhancement. 2 Defendant’s
        arguments are two-fold. First, he argues that the automatic transfer provision of the Juvenile
        Court Act violates his right to due process under the Illinois and United States constitutions,
        as well as the eighth amendment to the United States Constitution and the proportionate
        penalties clause of the Illinois Constitution. Second, he argues that the mandatory firearm
        enhancement and consecutive sentencing statute, as applied to him in conjunction with one
        another, violate his rights under the eighth amendment and proportionate penalties clause.

¶ 121                  1. Whether the Automatic Transfer Provision Is Constitutional
¶ 122       We first consider defendant’s challenge to the automatic transfer provision of the
        Juvenile Court Act. See 705 ILCS 405/5-130 (West 2006). The automatic transfer statute
        mandates that minor offenders charged with certain enumerated offenses, including first
        degree murder and aggravated battery with a firearm, have their cases heard in adult criminal
        court. 705 ILCS 405/5-130(1)(a) (West 2006). Defendant contends that the automatic
        transfer statute violates the due process clause of the fourteenth amendment “because it is not
        rational to transfer 15- and 16-year-old offenders to adult court without a hearing where none
        of the four legitimate penological justifications for adult sentencing practices apply to
        juvenile offenders.” Defendant further argues that the statute violates the eighth amendment
        and proportionate penalties clause because the mandatory nature of the statute precludes
        courts from considering an offender’s youth and other characteristics before transferring a
        case to adult court.
¶ 123       The Illinois Supreme Court rejected virtually identical arguments in People v. Patterson,
        2014 IL 115102, ¶¶ 93-98 (rejecting due process challenge); id. ¶ 101 (rejecting eighth
        amendment and proportionate penalties clause challenges). Patterson is binding authority on

           2
            These issues are not moot, despite the fact we are vacating defendant’s sentence, because on
        remand these statutes will still be applicable to defendant.

                                                   - 28 -
        us, so we must reject defendant’s challenge to the constitutionality of the automatic transfer
        statute.

¶ 124                      2. Whether the Mandatory Firearm Enhancement and
                      Mandatory Consecutive Sentencing Statutes Are Constitutional
¶ 125       We next consider defendant’s constitutional challenges to the mandatory firearm
        enhancement and consecutive sentencing statute. The firearm enhancement is contained in
        section 5-8-1 of the Unified Code of Corrections, which provides in relevant part “if, during
        the commission of the offense, the person personally discharged a firearm that proximately
        caused *** death to another person, 25 years or up to a term of natural life shall be added to
        the term of imprisonment imposed by the court.” 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006).
        The consecutive sentencing statute is contained in section 5-8-4 of the Unified Code of
        Corrections, which provides in relevant part that the trial court must impose consecutive
        sentences if “one of the offenses for which defendant was convicted was first degree murder
        or a Class X or Class 1 felony and the defendant inflicted severe bodily injury.” 730 ILCS
        5/5-8-4 (West 2006). Pursuant to this statute, defendant was subject to mandatory
        consecutive sentencing because first degree murder and aggravated battery with a firearm are
        both triggering offenses. 720 ILCS 5/12-4.2(b) (West 2006) (aggravated battery with a
        firearm is a Class X offense).

¶ 126                          a. Constitutionality Under Eighth Amendment
¶ 127       The eighth amendment, applicable to the states through the fourteenth amendment
        (Kennedy v. Louisiana, 554 U.S. 407, 419 (2008)), provides that “[e]xcessive bail shall not
        be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S.
        Const., amend. VIII. The United States Supreme Court has interpreted the cruel and unusual
        punishment clause to prohibit “inherently barbaric punishments” as well as punishments
        which are disproportionate to the offense. Graham v. Florida, 560 U.S. 48, 59 (2010).
¶ 128       Within the past ten years, the United States Supreme Court has decided three eighth
        amendment cases addressing juvenile sentencing issues. The first case was Roper v.
        Simmons, 543 U.S. 551 (2005). In Roper, the Court held that the eighth amendment
        prohibited the imposition of a death sentence on juvenile homicide offenders. Id. at 578. The
        Court explained that three key distinctions between juvenile and adult offenders
        “demonstrate[d] that juvenile offenders cannot with reliability be classified among the worst
        offenders.” Id. at 569. First, the Court noted that juveniles are often immature and lack a
        sense of responsibility. Id. Second, the Court emphasized that juveniles are often more
        susceptible to peer pressure and other negative influences. Id. Finally, the Court pointed out
        that, unlike an adult offender, a juvenile’s character is “less fixed.” Id. at 570. As a result of
        these differences, the Court explained, juvenile offenders have less moral culpability than
        their adult counterparts, and therefore the penological justifications for imposing the death
        penalty–retribution and deterrence–are substantially diminished in cases involving juveniles.
        Id. at 571.
¶ 129       Next came Graham. In Graham, the Court held that the eighth amendment prohibited the
        imposition of life without parole sentences for juveniles convicted of nonhomicide offenses.
        560 U.S. at 52. In explaining its decision, the Court noted that juveniles have reduced
        culpability due to their youth and are therefore “less deserving of the most severe

                                                    - 29 -
        punishments.” Id. at 68. The Court further noted that a life sentence without parole is the
        second most severe penalty a court could impose and that the penalty is more severe for
        juveniles because they will serve a greater portion of their lives in prison than similarly
        situated adult offenders. Id. at 70.
¶ 130        Most recently, in Miller v. Alabama, 567 U.S. at ___, 132 S. Ct. 2455 (2012), the Court
        held that the eighth amendment prohibited the imposition of statutorily mandated sentences
        of life imprisonment without parole for juveniles convicted of homicide. Id. at ___, 132 S.
        Ct. at 2469. The Court explained that the constitutional defect of such statutes was that they
        divested courts of any discretion to take into account a juvenile defendant’s youth and other
        traits during sentencing. Id. at ___, 132 S. Ct. at 2466.
¶ 131        Defendant argues that the firearm enhancement and consecutive sentencing statute are
        unconstitutional as applied to him for two reasons. First, he contends that the 57-year
        minimum sentence the court was required to impose was a de facto life sentence and
        therefore violated Miller. While this argument has some facial appeal, the current state of the
        law in Illinois does not support it. In People v. Gay, 2011 IL App (4th) 100009, the
        defendant, a mentally ill man, was sentenced to a 97-year aggregate prison term. Id. ¶ 20. On
        appeal, the defendant argued that his 97-year aggregate sentence violated the eighth
        amendment because it was a de facto life sentence. The appellate court disagreed, explaining
        that the defendant’s aggregate prison term was different from a sentence of life without
        parole because a life sentence is “[n]ot an accumulation of sentences,” but rather “is tied to a
        single conviction and is absolute in its duration for the offender’s natural life.” Id. ¶ 23; see
        also People v. Reyes, 2015 IL App (2d) 120471, ¶ 23; People v. Cavazos, 2015 IL App (2d)
        120171, ¶ 99; but see People v. Gipson, 2015 IL App (1st) 122451, ¶ 61 (declining to follow
        Reyes and Cavazos).
¶ 132        Defendant’s second argument is that these statutes encroach on the trial court’s discretion
        to impose any sentence it wants and so violate Miller. Here, defendant notes that Miller
        struck down a mandatory sentencing statute. Miller, however, merely stands for the
        proposition that the state cannot impose adult mandatory maximum penalties on a juvenile
        offender without permitting the sentencing authority to take the defendant’s youth and other
        attendant characteristics into consideration. See Cavazos, 2015 IL App (2d) 120171, ¶ 98
        (noting that Miller only stands for the proposition that “ ‘a judge or jury must have the
        opportunity to consider mitigating circumstances before imposing the harshest possible
        penalty for juveniles’ ” (emphasis omitted) (quoting Miller, 567 U.S. at ___, 132 S. Ct. at
        2475)); see also Reyes, 2015 IL App (2d) 120471, ¶ 11 (“Miller did not preclude a sentence
        of life without parole for homicide offenders; it required only that the trial court first consider
        the special characteristics of young offenders, such as immaturity, impetuosity, and the
        failure to appreciate risks and consequences, before imposing such a sentence on a juvenile
        defendant.”); People v. Pacheco, 2013 IL App (4th) 110409, ¶ 58 (“The Supreme Court did
        not hold in Roper, Graham, or Miller the eighth amendment prohibits a juvenile defendant
        from being subject to the same mandatory minimum sentence as an adult, unless the
        mandatory minimum sentence was death or life in prison without the possibility of parole.”).
¶ 133        In People v. Banks, 2015 IL App (1st) 130985, a division of this court rejected arguments
        similar to those made by defendant in the present case. As in this case, the defendant in
        Banks was a juvenile convicted of first degree murder. Id. ¶ 2. And like defendant in this
        case, the defendant in Banks argued that the application of the firearm enhancement statute to

                                                    - 30 -
        him was unconstitutional under the Roper/Graham/Miller trilogy because it resulted in a
        mandatory minimum sentence of 45 years’ imprisonment. Id. ¶ 18. The court rejected this
        argument, explaining:
                    “Unlike those cases, which involved the imposition of the death penalty (Roper)
                and a mandatory life sentence without the possibility of parole (Graham and Miller)
                without allowing the trial court any discretion in sentencing, the trial court in the
                instant case was able to consider defendant’s age and culpability in sentencing
                defendant. The trial court had the discretion to impose a sentence between 45 and 85
                years.” Id. ¶ 19.
¶ 134       Until the Illinois or United States Supreme Court rules otherwise, we believe the best
        course is to follow this line of cases as outlined above. Here, defendant was not subjected to
        a sentencing scheme which mandated a sentence of life in prison without parole. More
        importantly, consistent with Miller’s requirement that a sentencing authority retain some
        discretion to consider a juvenile’s youth before imposing a severe sentence, the trial judge in
        this case had discretion to impose a sentence between 57 years and life imprisonment. See
        Miller, 567 U.S. at ___, 132 S. Ct. at 2475; Banks, 2015 IL App (1st) 130985, ¶ 19. We are
        therefore not persuaded by defendant’s argument that his rights under the eighth amendment
        were violated when he was subjected to a minimum sentence of 57 years’ imprisonment.3

¶ 135                    b. Constitutionality Under Proportionate Penalties Clause
¶ 136       We next consider whether the firearm enhancement and consecutive sentencing statute,
        as applied to defendant, violate the proportionate penalties clause of the Illinois constitution.
        That clause provides “[a]ll penalties shall be determined both according to the seriousness of
        the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const.
        1970, art. I, § 11. The State contends that the proportionate penalties clause is coextensive
        with the eighth amendment, and that our resolution of defendant’s eighth amendment
        challenge against him thus forecloses his argument here as well. We find this argument
        unavailing.
¶ 137       In People v. McDonald, the Illinois Supreme Court stated that the proportionate penalties
        clause and eighth amendment are synonymous and coextensive with one another. 168 Ill. 2d
        420, 455-56 (1995). The court reiterated that holding in In re Rodney H., 223 Ill. 2d 510, 518
        (2006), and People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 206 (2009). However, in
        People v. Clemons, the court abrogated that holding, stating:
                “our conclusion in McDonald that ‘article I, section 11 was synonymous with the
                cruel and unusual punishment clause of the eighth amendment’ [citation] is an
                overstatement. Although a relationship may exist between the first clause of article I,
                section 11, and the eighth amendment, that relationship is not entirely clear. What is
                clear is that the limitation on penalties set forth in the second clause of article I,
                section 11, which focuses on the objective of rehabilitation, went beyond the framers’

            3
             Defendant also obliquely argues that the 100-year sentence imposed by the trial court violated
        Miller. While defendant’s constitutional challenge to his 100-year sentence is mooted based on our
        resolution of his judicial bias claim, we note that the court arrived at its 100-year sentence as a result of
        its consideration of the evidence at the sentencing hearing, not as a result of any statute or statutes
        requiring the imposition of that penalty.

                                                         - 31 -
                understanding of the eighth amendment and is not synonymous with that provision.”
                2012 IL 107821, ¶ 40.
¶ 138        Despite its holding in Clemons, however, two years later the Court again stated that the
        proportionate penalties clause and eighth amendment are coextensive. See Patterson, 2014
        IL 115102, ¶ 106. This line of precedents has produced inconsistent results in the appellate
        court. Compare Banks, 2015 IL App (1st) 130985, ¶ 24 (quoting Rodney H., 223 Ill. 2d at
        518, to hold that protections afforded by proportionate penalties clause are coextensive with
        eighth amendment), and In re Isaiah D., 2015 IL App (1st) 143507, ¶ 58 (quoting Patterson,
        2014 IL 115102, ¶ 106, to reject argument that, pursuant to Clemons, proportionate penalties
        clause affords defendants broader protections than eighth amendment), with Gipson, 2015 IL
        App (1st) 122451, ¶¶ 69-70 (rejecting argument that proportionate penalties clause is
        substantively coextensive with eighth amendment and instead holding that they are
        coextensive only insofar as they both apply only when a penalty has actually been imposed
        on the defendant).
¶ 139        We do not believe that Patterson abrogated Clemons. Each time the Illinois Supreme
        Court has stated that the proportionate penalties clause is coextensive with the eighth
        amendment, it has always clarified that it means the texts are coextensive in that they both
        apply only when the government has imposed a penalty on a defendant. See Patterson, 2014
        IL 115102, ¶ 101 (“Under the definition of the plain language used, neither clause applies
        unless a punishment or penalty has been imposed.”); Konetski, 233 Ill. 2d at 206-07 (“Our
        proportionate penalties clause is coextensive with the federal constitution’s prohibition
        against cruel and unusual punishment. [Citation.] Both provisions apply only to the criminal
        process where the government takes direct action to inflict punishment.”); Rodney H., 223 Ill.
        2d at 518 (same). Thus, if a statute does not inflict punishment, it implicates neither the
        eighth amendment nor the proportionate penalties clause. However, when a punishment has
        been imposed, the proportionate penalties clause provides greater protection. Clemons, 2012
        IL 107821, ¶ 40. Accordingly, we must independently analyze whether defendant’s sentence
        violates the proportionate penalties clause.
¶ 140        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). A violation may be shown where the penalty imposed is “ ‘cruel,
        degrading, or so wholly disproportionate to the offense committed as to shock the moral
        sense of the community.’ ” Id. (quoting People v. Moss, 206 Ill. 2d 503, 522 (2003)).
¶ 141        “To determine whether a penalty shocks the moral sense of the community, we must
        consider objective evidence as well as the community’s changing standard of moral
        decency.” People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008). In People v. Sharpe, 216
        Ill. 2d 481 (2005), the supreme court explicitly upheld the constitutionality of the firearm
        enhancement statute against a proportionate penalties clause challenge. The court explained
        that “it would not shock the conscience of the community to learn that the legislature has
        determined that an additional penalty ought to be imposed when murder is committed with a
        weapon that not only enhances the perpetrator’s ability to kill the intended victim, but also
        increases the risk that grievous harm or death will be inflicted upon bystanders.” Id. at 525.
        Thus, the Illinois Supreme Court has held that subjecting defendants guilty of crimes
        involving firearms to substantial mandatory minimum sentences does not shock the moral
        sense of the community.

                                                  - 32 -
¶ 142       This is so even though the mandatory nature of the firearm enhancements restrict the
        scope of discretion which the trial courts may exercise during sentencing. In Sharpe, the
        court explained that “ ‘the legislature’s power necessarily includes the authority to establish
        mandatory minimum sentences, even though such sentences, by definition, restrict the
        inquiry and function of the judiciary in imposing sentence.’ ” Id. (quoting People v. Dunigan,
        165 Ill. 2d 235, 245 (1995)). And in any event, trial courts operating under such sentencing
        regimes do retain discretion in imposing sentences. See Banks, 2015 IL App (1st) 130985,
        ¶ 24.
¶ 143       Defendant nevertheless argues that People v. Miller, 202 Ill. 2d 328 (2002) (Leon Miller),
        commands a different result. We disagree. In Leon Miller, the juvenile defendant was
        approached by two individuals who asked him to serve as a lookout. Id. at 330-31. Defendant
        agreed, and one minute later the individuals opened fire, killing two people. Id. Defendant
        was charged and convicted of two counts of first degree murder on an accountability theory,
        despite the fact that he never handled the guns used to commit the murders and ran away
        when the shots were fired. Id. After trial, the State asked the court to impose a life sentence
        under the multiple murder provision of the Unified Code of Corrections, which mandated a
        life sentence for defendants convicted of committing more than one murder. Id. at 335-36
        (quoting 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996)). The trial court refused to do so,
        explaining that it found the multiple murder statute unconstitutional as applied to the
        defendant. Id. at 331-32.
¶ 144       The Illinois Supreme Court affirmed. The court began its analysis by framing the issue as
        whether the multiple murder sentencing statute could be constitutionally applied “to a
        juvenile convicted upon a theory of accountability.” (Emphases in original.) Id. at 337. The
        court explained that because (1) the automatic transfer statute mandates that all 15-year-olds
        charged with murder be tried in adult court; (2) “[t]he accountability statute (720 ILCS
        5/5-2(c) (West 1996)) effectively bars courts from considering the offender’s degree of
        participation in the crime by making all persons who participate in a common criminal design
        equally responsible”; and (3) the sentencing statute precludes courts from considering a
        defendant’s age or degree of participation in the crime, “a court never considers the actual
        facts of the crime, including the defendant’s age at the time of the crime or his or her
        individual level of culpability.” Id. at 340. Thus, the court held that:
                “the penalty mandated by the multiple-murder sentencing statute as applied to this
                defendant is particularly harsh and unconstitutionally disproportionate. We agree with
                defendant that a mandatory sentence of natural life in prison with no possibility of
                parole grossly distorts the factual realities of the case and does not accurately
                represent defendant’s personal culpability such that it shocks the moral sense of the
                community. This moral sense is particularly true, as in the case before us, where a
                15-year-old with one minute to contemplate his decision to participate in the incident
                and stood as a lookout during the shooting, but never handled a gun, is subject to life
                imprisonment with no possibility of parole–the same sentence applicable to the actual
                shooter.” Id. at 341.
        The court noted, however, that its decision did not imply that such a sentence for juvenile
        convicted of murder under an accountability theory would never be appropriate. Id.
¶ 145       Leon Miller is distinguishable on multiple grounds. First, we note that the court’s holding
        in Leon Miller was based on the multiple-murder sentencing statute “as applied to this

                                                  - 33 -
        defendant.” (Emphasis added.) Id. Thus, the court did not announce a blanket rule of law, but
        rather turned on the peculiar facts of the case. Second, unlike the defendant in Leon Miller,
        defendant in the present case actually fired the shots after having longer than a mere minute
        to contemplate his actions. Thus, the fact that defendant faced a minimum sentence of 57
        years’ imprisonment cannot be described as a gross distortion of the “factual realities of the
        case.” Id.
¶ 146       We also find that People v. Brown, 2015 IL App (1st) 130048, and Gipson, 2015 IL App
        (1st) 122451, are distinguishable. In Brown, a juvenile defendant was convicted of
        aggravated battery with a firearm and three counts of attempted first degree murder. Brown,
        2015 IL App (1st) 130048, ¶ 1. The trial court sentenced the defendant to 50 years’
        imprisonment, consisting of 25 years for attempted first degree murder and 25 years for
        personally discharging a firearm that proximately caused great bodily harm. Id. In imposing
        sentence, however, the court relied on “speculative evidence” to support finding the existence
        of a “phantom aggravating factor that but for defendant’s gun jamming, defendant would
        have caused more violence on the bus that day.” Id. ¶ 44. The court further held that
        defendant’s sentence, which would not permit his release until he was 66 years old, did not
        satisfy the constitutional requirement that all penalties serve the objective of restoring the
        offender to useful citizenship. Id. ¶ 45. The court explained that “[f]actors that weigh in favor
        of defendant’s rehabilitative potential include his age, family support, and the fact that
        defendant was in high school” and had a limited criminal history. Id. Accordingly, the court
        reduced defendant’s sentence to 31 years’ imprisonment. Id. ¶ 47.
¶ 147       Brown is distinguishable from the present case. Unlike in Brown, defendant murdered
        one of his victims. Murder is recognized as the most serious offense a person can commit.
        Moreover, the conclusion that defendant’s sentence did not adequately account for his
        rehabilitative potential was inescapable in light of the fact that the court considered improper
        aggravating factors.
¶ 148       In Gipson, the juvenile defendant was convicted of attempted murder and sentenced to a
        cumulative 52-year prison term. 2015 IL App (1st) 122451, ¶ 1. The appellate court reversed
        and remanded to the trial court with instructions to conduct a retroactive fitness hearing. Id.
        ¶ 38. The court found, however, defendant’s 52-year sentence violated the proportionate
        penalties clause and therefore provided the trial court with the additional instruction that, in
        the event it found that defendant was fit to stand trial, then he should be resentenced without
        applying the firearm enhancement. Id. ¶¶ 69, 78.
¶ 149       Gipson is distinguishable for several reasons. First, as in Brown and unlike the present
        case, the defendant in Gipson was convicted of attempted murder; he did not actually kill his
        victim. Id. ¶ 1. Second, the defendant in Gipson had once been found unfit to stand trial; no
        similar finding was ever entered in the present case. Third, unlike in Gipson, the facts in the
        present case show that defendant planned his crime. Id. ¶ 73. Specifically, defendant met
        with confederates away from the crime scene, obtained a gun and hoodie, walked to the bus
        stop, looked into the bus to ensure that his target was inside, and after the crime fled and
        boasted “I just laid down the murder game.”
¶ 150       Based on the foregoing, we find that the application of the consecutive sentencing statute
        and firearm enhancement to defendant, resulting in a minimum sentence of 57 years’
        imprisonment, does not violate the proportionate penalties clause of the Illinois Constitution.


                                                   - 34 -
¶ 151                                     E. Mittimus Correction
¶ 152      The mittimus reflects that defendant was convicted of two counts of first degree murder
        based on counts V and VI of the indictment. However, because defendant killed one victim
        only, his dual murder convictions cannot stand under the one-act, one-crime doctrine. See
        People v. Guest, 115 Ill. 2d 72, 103-04 (1986). Accordingly, defendant’s conviction on count
        VI is vacated and the mittimus is corrected to reflect that defendant was convicted of first
        degree murder (see 720 ILCS 5/9-1(a)(1) (West 2006)), two counts of aggravated battery
        with a firearm, and imposition of an additional 25-year sentence as a result of the firearm
        enhancement.

¶ 153                                        CONCLUSION
¶ 154       We affirm the decisions of the trial court in all respects, except that we vacate
        defendant’s sentence and remand the case for resentencing before a different judge. On
        remand, if resentencing takes place under the law as it exists at the time this opinion is filed,
        the trial court may impose any sentence between 57 and 100 years’ imprisonment. However,
        the new sentence may not be longer than the original sentence. See 730 ILCS 5/5-5-4(a)
        (West 2014). We also correct the mittimus to reflect a conviction on one, rather than two,
        murder counts.

¶ 155      Affirmed in part, vacated in part, and remanded with instructions; mittimus corrected.




                                                   - 35 -
