                                          2015 IL App (3d) 130190

                                 Opinion filed May 6, 2015
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                 A.D., 2015

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 12th Judicial Circuit,
                                                       )       Will County, Illinois.
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-13-0190
            v.                                         )       Circuit No. 09-CF-1559
                                                       )
     MATTHEW T. EDWARDS,                               )
                                                       )       Honorable Amy Bertani-Tomczak,
            Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justice Holdridge concurred in the judgment and opinion.
            Justice Wright concurred in part and dissented in part, with opinion.

                                                 OPINION

¶1          Following a stipulated bench trial, the Will County circuit court found defendant,

     Matthew Edwards, guilty of first-degree murder and attempted murder.

¶2          Prior to trial, defendant filed a motion to suppress, claiming his confession to police was

     involuntary based on the fact that he was 17 years old at the time, had a fifth grade reading level,

     suffered from various mental disorders, and that the investigating officers did not allow him to

     speak to his mother or another concerned adult despite his request to do so. The trial court

     denied the motion.
¶3          The matter proceeded to a stipulated bench trial, following which the trial court found

     defendant guilty of both first-degree murder and attempted murder. The State dismissed the

     aggravated battery with a firearm, home invasion, and armed robbery counts.

¶4          In the sentencing phase, the State sought enhanced sentences on both charges given that

     defendant personally discharged a firearm causing both death and great bodily harm. The trial

     court found that the State proved the enhancement factors and subsequently sentenced defendant

     to 50 years on the murder conviction and 40 years on the attempted murder conviction.

¶5          On March 13, 2013, defendant filed a motion to reduce his sentence, arguing that it was

     excessive. The court denied the motion.

¶6          Defendant appeals, claiming, inter alia, that: (1) the trial court erred in denying his

     motion to suppress where defendant was 17 years old at the time of the arrest, had a limited

     education, and did not have contact with a parent or concerned adult; (2) the trial court erred

     when it failed to hold the statutorily required fitness hearing after it found a bona fide doubt of

     his fitness to stand trial; (3) the defendant’s 90-year sentence is unconstitutional under Miller v.

     Alabama, 567 U.S. ____, 132 S. Ct. 2455 (2012), prohibiting offenders under the age of 18 from

     receiving mandatory life sentences; and (4) defendant is entitled to an additional day of

     presentence incarceration credit.

¶7          We affirm as modified.

¶8                                            BACKGROUND

¶9          The State charged defendant, along with codefendants Ashley Hill, Mary Vetor, and

     Jason Orasco by indictment with three counts of first-degree murder, one count of attempted

     murder, one count of aggravated battery with a firearm, two counts of home invasion, and one

     count of armed robbery. The State named Jason Terdic as the victim in the murder, armed



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       robbery, and first home invasion charges. The State named Lauren Vasilakis as the victim of the

       attempted murder, aggravated battery with a firearm, and second home invasion charges. The

       court appointed the public defender to represent defendant.

¶ 10          On September 1, 2009, defendant filed a motion for the appointment of an expert to

       determine his fitness to stand trial and whether he was legally sane at the time of the alleged

       offenses. Defendant tendered a proposed order to the court indicating that the State had no

       objection.

¶ 11          The court ordered Dr. Randi Zoot to examine defendant, determine if he was fit to stand

       trial, and if he was legally sane at the time of the offenses. The order stated, “[t]his matter

       coming on for hearing on defendant’s motion for expert witness and for fitness hearing, and for

       other relief, said motion being uncontested by the People of the State of Illinois, and the court

       finding that a bona fide doubt exist [sic] as to defendant’s fitness to stand trial *** it is hereby

       ordered” that Dr. Zoot examine defendant.

¶ 12          Ultimately, Dr. Zoot filed a report finding defendant fit to stand trial and sane at the time

       of the alleged offenses.

¶ 13          On November 29, 2010, defendant filed a motion to suppress his statements/confession to

       the police. The following testimony was elicited at the hearing on the motion.

¶ 14          Detectives Jamie Marquez and Chris Georgeff, both of the Will County and Grundy

       County major crimes task force, testified that on July 7, 2009, they were dispatched to 512

       Cayuga Street in Joliet to assist the Channahon police. Approximately 12 armed officers were

       there to execute an arrest warrant for Jason Orasco. Sergeant Talmontes directed Marquez and

       Georgeff to take defendant to the Channahon police department.




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¶ 15          Marquez testified that prior to being taken to the police station, defendant voluntarily

       submitted to a gunshot residue (GSR) test. Georgeff could not recall if defendant submitted to a

       GSR test. Defendant voluntarily accompanied the officers to the station. The officers, both of

       whom were armed at the time, did not handcuff defendant. Defendant rode in the front seat of

       the squad car on the way to the station.

¶ 16          Defendant’s interview began at 5:45 p.m. Marquez read defendant the Miranda warnings

       line-by-line. Defendant indicated he understood his rights, initialed each line, and signed the

       form. Both officers were aware that defendant had just turned 17 years old.

¶ 17          At first, the detectives were only trying to gather facts on defendant’s whereabouts on

       July 7, 2009. They knew that Joshua Terdic had been shot in the head and was in critical

       condition at the time of the interview. Defendant initially told officers he was not in Channahon

       on July 7.

¶ 18          The officers left the room to speak with the detectives who were interviewing Hill, Vetor

       and Orasco. Afterward, Marquez and Georgeff confronted defendant with the codefendants’

       statements indicating that defendant was, in fact, in Channahon on the day of the incident.

¶ 19          Defendant’s initial statements were not recorded as officers were unsure at that time

       whether he was a suspect. Georgeff stated that he and Marquez did not record the entire

       interview because they did not believe they were required to do so. Once defendant agreed to

       give a recorded statement, the last 30 minutes of the interview (which included defendant’s

       confession) were recorded.

¶ 20          According to Marquez, defendant did not request to speak to his mother. Georgeff could

       not recall if defendant asked to speak with his mother or if the police offered to allow defendant

       to call his mother. Marquez and Georgeff were trained as juvenile officers. Georgeff testified



                                                        4
       that he was “absolutely” acting in defendant’s best interests. On recross-examination, defense

       counsel inquired if Georgeff was only doing what was minimally required to be in defendant’s

       best interests, to which Georgeff responded, “Sure.”

¶ 21          Throughout the course of defendant’s detainment and interrogation, he was not beaten or

       slapped, he was allowed to use the restroom, and he was allowed food and water if he so desired.

       Officers did not inquire as to whether or not defendant had trouble reading or suffered from any

       mental illness. Defendant did not volunteer this information, nor did he appear to be under the

       influence of drugs or alcohol. Marquez testified they never informed defendant that his GSR test

       came back positive, though Georgeff could not recall.

¶ 22          The interrogation took place in a conference room, not an interview room. The door was

       not locked. Despite that, defendant would probably not have been able to leave the building.

       The interrogation concluded at 8:16 p.m.

¶ 23          Once officers indicated to defendant that his friends placed him at the scene of the crime,

       he subsequently gave a statement, which he agreed to have recorded. The tape began at 7:50

       p.m. and ended at 8:16 p.m.

¶ 24          The State offered the digital versatile disc (DVD) of defendant’s confession into evidence

       and the trial judge watched it in her chambers. In the DVD, defendant acknowledged receiving

       his Miranda rights and answered affirmatively that he knew all his rights. Defendant gave the

       following narrative of the events of the previous night/early morning of July 7.

¶ 25          He was drinking with friends at Mary Vetor’s house, went to sleep, and was awakened by

       Jason. Jason knew a place where they could get money and drugs. Defendant said, “Okay, let’s

       go.” Ashley and Mary drove the two men; Mary got a ticket while parked outside. Jason




                                                       5
       grabbed a shovel, which defendant used to break into the apartment. Defendant then unlocked

       the bedroom door with a knife he had taken from the kitchen.

¶ 26          The sleeping couple woke up while defendant and Jason searched for money and drugs.

       Jason said to tie them up, so defendant and Jason did so. Jason hit the male victim in the knee

       with a baseball bat, breaking the bat. Jason had brought the bat and the gun. The victims were

       screaming and Jason told defendant to shoot, to “Just do it.” Jason ordered the male victim to

       put his head under the pillow. Defendant just wanted to scare the male victim and, as Jason was

       yelling at defendant to shoot and kill him, defendant shot at the pillow. He then lifted the pillow

       off the male victim, saw blood on the pillow, put it over the female victim’s head, and fired two

       shots. Defendant then left through the window.

¶ 27          Jason wore a mask, hoodie, and rubber gloves; defendant wore baseball gloves.

       Defendant gave Jason the gun, which they threw away as they walked to a cabin. Jason and

       defendant texted Ashley and Mary to come pick them up. The four then returned home to

       Mary’s house.

¶ 28          In response to questions during the interrogation, defendant stated he was sorry Joshua

       Terdic got hurt and he knew he would “have to do something for it,” but hoped it would be a low

       charge. Defendant offered to help find evidence. At the conclusion of the video he stated, “I

       told mom I’d see her for her birthday and I don’t like lying,” but acknowledged he had lied

       initially to cover his tracks. He did not want to get anyone else in trouble. Finally, he

       acknowledged that he went to the police station voluntarily, had not been handcuffed, that no

       promises had been made, that he had been given his Miranda rights, and had been offered drinks

       and the use of the bathroom. When officers asked if defendant was hungry, he responded that he




                                                        6
       was a little bit hungry and the officers stated they would get him some food. The DVD

       concluded at 8:16 p.m.

¶ 29           The hearing resumed the next day. Defendant testified that on July 7, 2009, he was 17

       years old and was living at Mary Vetor’s house. He, along with Jason Orasco, Ashley Hill, Mary

       and Mary’s mother were at the house when police came with an arrest warrant for Jason. The

       police requested that all household members come outside; defendant complied. Officers

       directed defendant to stand by one of the squad cars and told him they were going to do a quick

       GSR test. Afterward, officers asked defendant if he would accompany them down to the station

       to answer some questions about the shooting. Defendant agreed and went voluntarily. He sat in

       the front seat of an unmarked squad car and was not handcuffed. Defendant felt he could not

       decline the officers’ invitation.

¶ 30           Upon arriving at the station, officers placed defendant in a conference room. Defendant

       had been living at Mary’s house for a couple months; he did not live with his mother. Defendant

       testified that as soon as he got to the station he asked to speak with his mother, telling officers it

       was her birthday “to get their attention.” He did not know how else to convince them to allow

       him to speak to her. The officers did not allow defendant to call his mother, saying “after the

       interview.” Defendant was not physically touched.

¶ 31           Defendant originally denied being in Channahon. The officers left the room and returned

       two or three minutes later. Midway through the second interview, officers informed defendant

       the GSR test came back positive and that his friends implicated him in the incident. Defendant’s

       photos were taken for a lineup. Shortly thereafter, defendant gave a statement and agreed to go

       on video to record the confession.




                                                          7
¶ 32            When asked about specifics of the interrogation on direct, defendant testified that

       Marquez told him that he did not like it when Georgeff gets angry because he has difficulty

       calming him down. Georgeff leaned over defendant and spoke in a loud voice. Sometimes the

       interview was confrontational, sometimes it was not. Prior to the shooting, defendant had never

       been confronted by the police, been in a police station, or incarcerated. He had had two previous

       run-ins with the police, but his mother was present and he was never arrested. The police told

       him that he was going to serve some time in prison, but the officers did not say how much.

       Defendant was afraid of the detectives.

¶ 33            Defendant attended the second half of his freshman year of high school, receiving mostly

       Ds and Fs. His sophomore year he got Ds and Fs the first semester, but did better his second

       semester because his grandfather made a concerted effort to help him. Defendant took special

       education classes. He dropped out toward the end of his sophomore year because he felt he did

       not need school. He read at a fifth or sixth grade level. He suffered from attention deficit

       disorder (ADD) and attention deficit hyperactivity disorder (ADHD), hindering his ability to

       learn.

¶ 34            Defendant had also been hospitalized previously, and was subsequently diagnosed with a

       mood disorder, bipolar disorder, and depression. Defendant had been prescribed medication—

       Depakote—for the disorders. When he was on the medication, he felt that he could understand

       better and felt more in control. On July 7, he was not taking Depakote. Defendant stopped

       taking the medication in March or April of 2008 because he could no longer afford it. He

       testified that being unmedicated affected his ability to understand the interview.




                                                         8
¶ 35          Defendant knew the meaning of the words “you have the right to remain silent.” He did

       not know what the word “attorney” meant. Defendant had heard of the word “lawyer,” but was

       not familiar with the word “attorney.”

¶ 36          After dropping out of high school, defendant enrolled in the Lincoln’s Challenge

       Academy in order to help control his disorders. The first two weeks of the program consisted of

       vigorous physical exercise programs. He did not, however, pass his reading, writing or

       mathematics courses because he had a hard time paying attention and could not understand.

       Defendant ultimately graduated from the program; one could graduate by not causing trouble.

¶ 37          Janice Edwards, defendant’s mother, testified that she was living with her parents on July

       7, 2009, and that defendant was not living with her. The police did not contact her when they

       took defendant into custody. She learned of the incident on July 8, when her brother told her to

       look at the newspaper and she saw an article stating that defendant had been arrested in

       connection with a shooting.

¶ 38          Edwards stated that defendant could not read or write very well, and he could not spell.

       He understood children’s books. Defendant would not understand the word “attorney,” but he

       would probably understand the word “lawyer.” Defendant suffered from mental health problems

       throughout his life. He had been in trouble with the police a couple of years before the shooting.

       Though prescribed medication for his disorders, she could not afford them and public aid would

       not cover the medications because she made too much money.

¶ 39          Defendant got into the Lincoln’s Challenge Academy with the help of his high school

       counselor. Defendant did well in the program, as it provided the structure he needed. He did not

       do well in the academic portion of the program, and he failed the GED test miserably.

       Defendant did not attend his high school classes because he did not know what was going on.



                                                       9
¶ 40          After the Lincoln program, defendant lived with his older brother. He was not welcome

       at his grandparents’ home because he had been stealing. According to his mother, at 16 years

       old, defendant made his own arrangements.

¶ 41          At the conclusion of argument, the court denied defendant’s motion to suppress. The

       court specifically found that at 17 years old, defendant was not at a tender age. In viewing the

       DVD, the court found defendant articulate, he used appropriate words, and his responses showed

       an ability to understand the questions posed to him. While defendant lied about it being his

       mother’s birthday, apparently in order to see her, the court did not find that dispositive.

       Defendant had stopped taking medications for his various disorders over a year before the

       interrogation. His records from Joliet High School showed that defendant had an above average

       learning potential. The records further indicated that defendant was not developmentally

       delayed, nor did he suffer from any type of learning, speech, or hearing impairment. Under the

       totality of the circumstances and based upon the credibility of the witnesses, the court found that

       defendant’s statement was voluntary.

¶ 42          The State then filed a notice of intent to seek enhanced sentences on the first-degree

       murder and attempted murder charges based on the fact that defendant personally discharged a

       firearm causing both death and great bodily harm. On December 12, 2014, the cause proceeded

       by way of a stipulated bench trial. The State dismissed the home invasion, aggravated battery,

       and armed robbery charges.

¶ 43          Both parties presented a number of stipulations as to evidence, testimony of the

       witnesses, and transcripts from the trials of Mary Vetor and Jason Orasco.

¶ 44          The evidence tended to show that defendant and Jason Orasco broke into Terdic’s home

       in the early morning hours of July 7 looking for money and drugs. When they found only a



                                                        10
       small amount of both, they woke up the sleeping couple and demanded more. Vasilakis

       recognized Orasco’s voice because she had known him for several years through her sister. She

       picked defendant out of a lineup as the man who was holding the gun most of the time. Terdic

       and Vasilakis were tied up, ordered to lie on their stomachs, and a pillow was placed over their

       heads. Defendant asked if they should use the bat to try to knock out the victims. Orasco said

       “no” and that defendant should just “do it.” Vasilakis felt someone on the bed over Terdic, who

       was lying next to her, and then she heard a shot. The person got up, went around the bed, and

       got on top of her. She heard two clicks and a bang, and then she realized she had been shot.

       After defendant and Orasco left, Vasilakis untied herself and had the neighbor call the police.

¶ 45              The trial court found defendant guilty and that the State had proved the enhancement

       factors.

¶ 46              On February 27, 2013, the court sentenced defendant to 50 years on the murder

       conviction and 40 years on the attempted murder conviction. The sentences were to run

       consecutively to one another. The court further awarded defendant custody credit from July 8,

       2009, to February 27, 2013.

¶ 47              Defendant subsequently filed a motion to reduce his sentence, arguing that it was

       excessive. The court denied the motion.

¶ 48              Defendant appeals.

¶ 49                                                  ANALYSIS

¶ 50                                 I. Denial of Defendant’s Motion to Suppress

¶ 51              Defendant first contends that the trial court erred in denying his motion to suppress.

       Specifically, that his statement cannot be considered voluntary where he was 17 years old at the




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       time, had a limited education, read only at a fifth or sixth grade level, did not have contact with a

       parent or other concerned adult, and had minimal prior contacts with the police.

¶ 52          When faced with a challenge to a circuit court’s ruling on the voluntariness of a

       confession, a reviewing court will not disturb the trial court’s factual findings unless they are

       against the manifest weight of the evidence. However, the ultimate ruling on whether a

       confession was voluntary is reviewed under the de novo standard. People v. Murdock, 2012 IL

       112362, ¶ 29.

¶ 53          Illinois courts have long recognized that receiving a confession from a juvenile is a

       “sensitive concern.” People v. Prude, 66 Ill. 2d 470, 476 (1977); Murdock, 2012 IL 112362,

       ¶ 32. As a consequence, “ ‘the greatest care must be taken to assure that the admission was

       voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the

       product of ignorance of rights or of adolescent fantasy, fright or despair.’ ” People v. Simmons,

       60 Ill. 2d 173, 180 (1975) (quoting In re Gault, 387 U.S. 1, 55 (1967)). Due to these concerns,

       an additional factor is recognized that is not present in cases involving confessions by adults.

       This factor, commonly known as the “concerned adult” factor, considers whether the juvenile,

       either before or during the interrogation, had an opportunity to consult with an adult interested in

       his welfare. In re G.O., 191 Ill. 2d 37, 54-55 (2000).

¶ 54          Thus, in determining whether a juvenile’s confession was voluntarily given, relevant

       considerations include: (1) the juvenile’s age, intelligence, background, experience, education,

       mental capacity, and physical condition at the time of questioning; (2) the duration of the

       detention, including whether the police physically or mentally abused the juvenile or employed

       trickery or deceit in obtaining the confession; and (3) whether the juvenile had an opportunity to

       speak with a parent or other concerned adult prior to or during the interrogation, including



                                                        12
       whether the police prevented or frustrated such opportunities. Murdock, 2012 IL 112362, ¶¶ 30-

       32. No single factor is dispositive; rather, the courts must consider the totality of the

       circumstances surrounding the confession. Id. ¶ 30.

¶ 55          While we acknowledge that defendant suffered from some mental health disorders and

       did not finish high school, based upon our review of the record, the trial court’s factual findings

       and prevailing case law on the subject, we cannot find that the trial court erred in denying

       defendant’s motion to suppress.

¶ 56          Defendant places a great amount of emphasis on the fact that he did not have contact with

       a concerned adult during the interrogation. He argues that the concerned adult factor weighs

       heavily in his case, where the Juvenile Court Act of 1987 (the Act) provides:

                      “A law enforcement officer who arrests a minor without a warrant

                      under Section 5-401 shall, if the minor is not released, immediately

                      make a reasonable attempt to notify the parent or other person

                      legally responsible for the minor’s care or the person with whom

                      the minor resides that the minor has been arrested and where the

                      minor is being held; and the law enforcement officer shall without

                      unnecessary delay take the minor to the nearest juvenile police

                      officer designated for these purposes in the county of venue or

                      shall surrender the minor to a juvenile police officer in the city or

                      village where the offense is alleged to have been committed.” 705

                      ILCS 405/5-405(2) (West 2008).

¶ 57          We note, however, that defendant was not subject to the provisions of the Act at the time

       of the shooting and subsequent interrogation, where section 5-120 provided that the relevant



                                                        13
       provisions of the Act applied to minors who violated or attempted to violate the law prior to their

       seventeenth birthday. 705 ILCS 405/5-120 (West 2008). Defendant was 17 years old at the time

       of the incident in July of 2009. Pursuant to Public Act 98-61 (eff. Jan. 1, 2014), the legislature

       amended section 5-120 to apply to 17-year-olds. Pub. Act 98-61, § 5 (eff. Jan. 1, 2014)

       (amending 705 ILCS 405/5-120 (West 2012)). This change occurred 4½ years after defendant’s

       interrogation.

¶ 58          Defendant concedes he falls outside the purview of the Act, but notwithstanding that,

       argues that the concerned adult factor still applies to him on common law grounds, citing People

       v. Westmorland, 372 Ill. App. 3d 868, 880 (2007). Westmorland, however, is readily

       distinguishable from the case at bar. In Westmorland, the 17-year-old defendant charged with

       multiple sex offenses moved to suppress his statements to police as involuntary. The trial court

       granted the motion, noting that despite the fact that defendant was 17 years old, “ ‘[h]e appears

       not to be a very mature 17.’ ” Id. at 874. Defendant struck the court as being somewhat

       immature, a little bit pudgy with rosy cheeks. Id. The court further observed defendant as under

       six feet tall, wide-eyed, frightened, with no noticeable facial hair. Id.

¶ 59          By comparison, the interviewing officer was an imposing figure, well over six feet tall,

       over 200 pounds, fit and muscular, and with a dominant personality. Id. The court also found

       that the defendant was handcuffed and abandoned in the interrogation room, the officer used

       threatening language, and that the officers engaged in some deception during the interview when

       they led defendant to believe that if he cooperated he could go home. Police refused defendant’s

       two requests to contact his mother and made no effort themselves to contact defendant’s parents

       before or during the interview. Id. at 890. The appellate court affirmed, noting that the Act did

       not restrict the factors to be considered under the common law/constitutional voluntariness



                                                         14
       inquiry. Id. at 880. Applying the concerned adult factor, the court found that under the totality

       of the circumstances, the State did not prove by a preponderance of the evidence that defendant’s

       confession was voluntary. Id.

¶ 60          We are confronted with a very different scenario here. The trial court reviewed the

       interview tape twice and observed defendant during his testimony on the motion to suppress.

       The trial court thoroughly and methodically considered the factors of defendant’s age,

       intelligence, background, experience, mental capacity, education and physical condition at the

       time of questioning. Defendant was no wide-eyed, 17-year-old that appeared immature. Quite

       the opposite, defendant responded appropriately to questioning and was articulate, both during

       the interview and in his testimony during the suppression hearing. While there was some

       allusion to force and deception on the part of officers in Westmorland, there was no such

       behavior exhibited by officers here. Both Marquez and Georgeff were trained juvenile officers,

       and Georgeff testified that they acted in defendant’s best interests. That Marquez and Georgeff

       only recorded the confession portion of defendant’s interview does not render the statement

       involuntary. The trial court clearly found the officers’ testimony credible that they initially only

       brought defendant in to establish his whereabouts and ask a few questions.

¶ 61          Finally, the officers were not bound by the dictates of the Act to contact defendant’s

       mother or to allow him to speak with a concerned adult. Even when considering the concerned

       adult factor as one of many when determining the voluntariness of a confession, our supreme

       court has specifically held that a juvenile confession should not be suppressed simply because he

       was denied the opportunity to confer with a concerned adult. In re G.O., 191 Ill. 2d at 55. Here,

       there were conflicting accounts from defendant and the officers regarding whether or not he

       requested to speak with his mother. The trial court found that the fact defendant did not speak



                                                        15
       with his mother or another concerned adult was not dispositive. Based on the totality of the

       circumstances presented, we agree. The trial court’s factual findings are not against the manifest

       weight of the evidence. Accordingly, we find that defendant’s statements were voluntary and the

       trial court did not err in denying his motion to suppress.

¶ 62                       II. Bona Fide Doubt of Defendant’s Fitness to Stand Trial

¶ 63          Defendant contends that after the trial court signed an order finding a bona fide doubt of

       defendant’s fitness and ordering a psychological evaluation, the trial court erred when it failed to

       hold the statutorily required fitness hearing before proceeding to the stipulated bench trial.

       Despite his failure to object at trial or addressing it in his posttrial motion, defendant contends

       we should review this issue under the second prong of the plain-error doctrine. Without

       addressing defendant’s alleged forfeiture of the issue or mentioning plain-error review, the State

       argues that the trial court did not actually raise or find a bona fide doubt of defendant’s fitness,

       but merely granted defendant’s motion for a fitness examination.

¶ 64          First, the plain-error doctrine allows a reviewing court to consider unpreserved error

       when one of two conditions is met:

                      “ ‘(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. Walker, 232 Ill. 2d 113,




                                                         16
                      124 (2009) (quoting People v. Piatkowski, 225 Ill. 2d 551, 565

                      (2007)).

¶ 65          “Under both prongs of the plain-error doctrine, the burden of persuasion remains with

       defendant.” Id. (citing People v. Naylor, 229 Ill. 2d 584, 593 (2008)). The initial step in

       conducting plain-error analysis is to determine whether error occurred at all. People v. Hudson,

       228 Ill. 2d 181, 191 (2008). We are therefore obligated to conduct a substantive review of the

       issue. See People v. Johnson, 208 Ill. 2d 53, 64 (2003).

¶ 66          Here, defendant’s claim implicates section 104-11 of the Code of Criminal Procedure of

       1963 (the Code), which provides, in relevant part, as follows:

                      “(a) The issue of the defendant’s fitness for trial, *** may be

                      raised by the defense, the State or the Court at any appropriate time

                      before a plea is entered or before, during, or after trial. When a

                      bona fide doubt of the defendant’s fitness is raised, the court shall

                      order a determination of the issue before proceeding further.

                            (b) Upon request of the defendant that a qualified expert be

                      appointed to examine him or her to determine prior to trial if a

                      bona fide doubt as to his or her fitness to stand trial may be raised,

                      the court, in its discretion, may order an appropriate examination.

                      However, no order entered pursuant to this subsection shall prevent

                      further proceedings in the case. An expert so appointed shall

                      examine the defendant and make a report as provided in Section

                      104-15. Upon the filing with the court of a verified statement of

                      services rendered, the court shall enter an order on the county



                                                        17
                      board to pay such expert a reasonable fee stated in the order.” 725

                      ILCS 5/104-11 (West 2012).

¶ 67          Also at issue is section 104-13, under which defendant originally brought his motion for

       fitness hearing and for appointment of an expert witness to determine defendant’s sanity. That

       section provides, in pertinent part, as follows:

                          “(a) When the issue of fitness involves the defendant’s mental

                      condition, the court shall order an examination of the defendant by

                      one or more licensed physicians, clinical psychologists, or

                      psychiatrists chosen by the court.” 725 ILCS 5/104-13 (West

                      2012).

¶ 68          The parties dispute whether or not the trial court expressly made a finding that a bona

       fide doubt of fitness existed. This is based in large part on the fact that the signed order, drafted

       by defense counsel, states: “This matter coming on for hearing on defendant’s motion for expert

       witness and for fitness hearing, and for other relief, said motion being uncontested by the People

       of the State of Illinois, and the Court finding that a bonafide doubt exist [sic] as to Defendant’s

       fitness to stand trial under 725 ILCS 5/104-13 et seq.”

¶ 69          We agree with the State and find People v. Hanson, 212 Ill. 2d 212 (2004), directly on

       point. In Hanson, our supreme court determined that a grant of a defense motion for a

       psychological evaluation, without more, does not create a sufficient inference that the trial court

       found bona fide doubt of defendant’s fitness to stand trial such that the trial court would be

       required to hold a fitness hearing before proceeding.

¶ 70          Specifically, the court noted that the defense motion referred only to section 104-13(a) of

       the Code (725 ILCS 5/104-13(a) (West 2012)) and made no reference to section 104-11(a) or (b).



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       Hanson, 212 Ill. 2d at 218. Section 104-13(a) only specifies who may be appointed to examine a

       defendant when the question of fitness involves mental health issues and can be used in

       conjunction with section 104-11(a) or (b). Id. at 219. Thus, the language in defendant’s own

       motion failed to advance his argument that the trial court was bound to hold a fitness hearing

       under section 104-11(a). Id. at 219-20.

¶ 71           Similarly, defendant here brought his motion pursuant to section 104-13(a), requesting

       that the court appoint a qualified expert to evaluate defendant’s fitness to stand trial, not under

       104-11(a). Although the order the court signed contained the language “bona fide doubt,” it was

       defendant who drafted this order. A review of the record gives us no indication whatsoever that

       the trial court or the State implicitly agreed with defense counsel, or raised on their own a bona

       fide doubt of defendant’s fitness. We note that under Hanson, even if defendant filed a motion

       under section 104-11(a), the trial court could specify its need for a fitness examination by an

       expert to aid in its determination of whether a bona fide doubt is raised without a fitness hearing

       becoming mandatory. Id. at 217. Considering that contemporaneously with the substance of

       defendant’s motion, we find that defendant merely requested an expert evaluation.

¶ 72           Finally, this situation is a far cry from that of People v. Smith, 353 Ill. App. 3d 236

       (2004), where the court raised sua sponte a bona fide doubt of defendant’s fitness to stand trial

       after defendant’s first psychological evaluation and defendant’s expression of dissatisfaction

       with the public defender and repeated requests to represent himself. Id. at 238. The trial court

       further articulated her concern regarding defendant’s potential for “ ‘outbursts.’ ” Id. at 241. By

       contrast, although the order drafted here was inartful, we find the court’s oral comments and

       actions reflect that the issue of fitness had been raised, and it ordered a fitness evaluation to assist




                                                         19
       in determining whether a bona fide doubt as to fitness actually existed. This determination is

       bolstered by the fact that nothing in the record supported a conclusion that defendant was unfit.

¶ 73          We accordingly find no error, plain or otherwise, in the trial court’s decision to proceed

       to trial without holding a fitness hearing.

¶ 74                                                 III. Sentencing

¶ 75          Defendant also contends that his 90-year sentence amounts to a de facto life sentence in

       violation of Miller v. Alabama, 567 U.S. ____, 132 S. Ct. 2455 (2012), which prohibits the

       imposition of a mandatory life sentence on offenders under the age of 18. Despite failing to raise

       this issue during sentencing or in his later motion to reduce sentence, defendant argues the court

       can review a challenge to the constitutionality of a sentencing scheme at any time. People v.

       Ruiz, 342 Ill. App. 3d 750, 762 (2003).

¶ 76          The State counters that those cases cited by defendant, Miller v. Alabama, Graham v.

       Florida, 560 U.S. 48 (2010), Roper v. Simmons, 543 U.S. 551 (2005), and People v. Miller, 202

       Ill. 2d 328 (2008), are all distinguishable, insofar as they all dealt with the imposition on minor

       defendants of either a mandatory natural life sentence without the possibility of parole or a death

       sentence. The State argues that this court should not expand that line of cases to include

       mandatory sentencing schemes that do not impose either the death penalty or life without parole.

       We agree.

¶ 77          Defendant faced a mandatory minimum term of 45 years for first-degree murder (a 20-

       year minimum term plus 25 years to life firearm enhancement). See 730 ILCS 5/5-4.5-20(a)

       (West 2008); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008). For attempted murder, defendant

       faced a mandatory minimum term of 31 years (a 6-year minimum term plus 25 years to life

       firearm enhancement). See 730 ILCS 5/5-4.5-25 (West 2008); 720 ILCS 5/8-4(a)(1) (West



                                                           20
       2008); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008) . These terms must be served consecutively

       (730 ILCS 5/5-8-4(a)(i) (West 2008)). Defendant was therefore subject to a mandatory

       minimum term of 76 years’ imprisonment.

¶ 78          The thrust of defendant’s argument on appeal is that this 76-year minimum is

       unconstitutional. However, the trial court did not sentence defendant to the minimum; it

       sentenced him to 90 years’ imprisonment, or 14 years over the mandatory minimum. The 50-

       year sentence on the murder charge exceeded the statutory minimum by 5 years. The 40-year

       sentence on the attempted murder exceeded the statutory minimum by 9 years.

¶ 79          Defendant cites to no case law, nor has our research uncovered any, that allows a

       defendant to argue that a sentence he did not actually receive is unconstitutional. Defendant does

       not argue that the 90-year sentence is unconstitutional, nor does he contend that the sentence is

       excessive or that the trial court abused its discretion in imposing it. Had the trial court sentenced

       defendant to the mandatory minimum of 76 years, we would have a different case. We point out

       that virtually every sentence has a mandatory minimum. It makes no difference to our analysis

       here if the mandatory minimum sentence was 30 years or 76 years, where defendant was not

       sentenced to the minimum. There is no indication that even had the minimum sentence been a

       hypothetical 30 years, the trial judge in this case would not have sentenced defendant to 90 years

       for what amounted to the execution of one individual and the attempted execution of another.

¶ 80          Notably, Miller v. Alabama did not hold that a juvenile could never be sentenced to life.

       Rather, it held that a statutory scheme which makes the imposition of life without parole

       mandatory for the sentencing court, i.e., the court has no discretion to consider the mitigating

       factor of the offender’s juvenile status, is prohibited by the eighth amendment. Miller, 567 U.S.

       at ___, 132 S. Ct. at 2469. Miller is distinguishable in at least two critical ways. First, the



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       Arkansas and Alabama statutes at issue in that case differ markedly from the sentencing

       provisions at play in this case, insofar as the trial court’s discretion is limited to choosing

       between death or life imprisonment without parole. See Ark. Code Ann. § 5-4-104(b) (1997)

       (“A defendant convicted of capital murder or treason shall be sentenced to death or life

       imprisonment without parole.”); see also Ala. Code §§ 13A-5-40(9), 13A-6-2(c) (1982)

       (providing that murder is a Class A felony, the punishment for which is death or life

       imprisonment without parole). Second, here, the trial court sentenced defendant to a term above

       the mandatory minimum. That is, in Miller defendants complained of the sentences handed

       them.

¶ 81           In this appeal, defendant argues only that the mandatory minimum sentences are

       unconstitutional. We reject defendant’s attempts to attack the constitutionality of sentences he

       did not receive.

¶ 82                                   IV. Presentence Incarceration Credit

¶ 83           Defendant argues, and the State concedes, that he is entitled to one additional day of pre-

       sentence incarceration credit. Defendant was taken into custody on July 7, 2009, but the trial

       court’s judgment ordered that defendant be given presentence incarceration credit from July 8,

       2009. Pursuant to People v. Smith, 258 Ill. App. 3d 261, 264 (1994), a defendant held in custody

       for even part of a day, including the day he was arrested, must be given sentence credit for that

       day.

¶ 84           Accordingly, we direct the trial court to grant defendant one extra day of presentence

       incarceration credit.

¶ 85                                              CONCLUSION




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¶ 86          For the foregoing reasons, the judgment of the circuit court of Will County is affirmed as

       modified.

¶ 87          Affirmed as modified.

¶ 88          JUSTICE WRIGHT, concurring in part and dissenting in part.

¶ 89          I agree on all issues except the issue regarding whether a bona fide doubt existed

       concerning defendant’s fitness to stand trial. Like the author, I am troubled that the State has not

       addressed defendant’s admission of forfeiture and defendant’s request for this court to excuse

       forfeiture based on the second prong of plain error. Instead, the State argues the court order,

       which included a finding that a bona fide doubt concerning this young offender’s fitness existed,

       should be ignored by this court. According to the State, the trial court did not intend to find a

       bona fide doubt of defendant’s fitness to stand trial, despite the language contained in its order.

¶ 90          I am reluctant to ignore the trial court’s explicit finding, as clearly and unequivocally

       stated in the written order dated September 4, 2009. I must assume that even though the defense

       drafted the order signed by the judge, both the prosecutor and the court had an opportunity to

       read and either approve or reject the language contained in the proposed order. Absent some

       allegation of fraud on the part of defense counsel, I presume the trial court intended to include

       that finding in its written court order. Moreover, the prosecutor had a chance to strike this

       language from the written order and failed to do so, thereby acquiescing in the order’s contents.

¶ 91          I respectfully suggest the court should have taken great care to resolve the fitness issue

       after ordering a fitness examination. In fact, the court’s oversight, under these circumstances,

       could have had drastic consequences impacting the viability of defendant’s convictions in the

       event of an appeal. An unresolved issue regarding defendant’s fitness typically requires this

       court to vacate defendant’s conviction and sentence and grant a new trial. See People v. Hill,



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       297 Ill. App. 3d 500, 514 (1998). Hence, once this trial judge ordered a fitness examination, it

       was incumbent on the trial court to ensure a fitness hearing occurred.

¶ 92          I note it has been more than one year since defendant’s December 10, 2012, trial and the

       subsequent sentencing hearing. Under these circumstances, our supreme court has cautioned that

       a retrospective fitness hearing would normally be inadequate to protect defendant’s rights when

       more than one year has passed since defendant’s original trial and sentencing. People v. Neal,

       179 Ill. 2d 541, 554 (1997). However, as recognized by Neal, in certain cases the issue of

       defendant’s fitness or lack of fitness at the time of trial may be fairly and accurately determined

       long after the fact. 179 Ill. 2d at 554. I submit, this is such a case, since defendant does not

       contend on appeal that he was actually unfit to stand trial. Therefore, unlike the majority, I

       conclude a retrospective fitness hearing is required based on the second prong of plain error,

       which the State has not addressed or contested on appeal.

¶ 93          Consequently, I respectfully disagree with the author’s conclusion that the written order

       contained an unintended factual finding by the court, such that the trial court did not find a bona

       fide doubt of defendant’s fitness existed. For these reasons, I suggest the trial court erred when it

       failed to conduct a fitness hearing prior to defendant’s trial and this structural error cannot be

       subject to forfeiture. In conclusion, I observe the proper remedy in this case is a retrospective

       fitness hearing and, if the trial court determines defendant was unfit to stand trial after the

       retrospective hearing, I would direct the trial court to vacate defendant’s convictions and set the

       matter for a new trial.




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