                                                                                  FILED
                                                                                August 27, 2019
                                   2019 IL App (4th) 170646                      Carla Bender
                                                                             4th District Appellate
                                        NO. 4-17-0646                              Court, IL

                                IN THE APPELLATE COURT

                                         OF ILLINOIS

                                     FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,                       )      Appeal from the
            Plaintiff-Appellee,                            )      Circuit Court of
            v.                                             )      Macon County
ELLIOTT T. MURPHY,                                         )      No. 09CF1471
            Defendant-Appellant.                           )
                                                           )      Honorable
                                                           )      Jeffrey S. Geisler,
                                                           )      Judge Presiding.


              JUSTICE KNECHT delivered the judgment of the court, with opinion.
              Presiding Justice Holder White and Justice Turner concurred in the judgment and
              opinion.

                                           OPINION

¶1            In April 2017, a jury found defendant, Elliott T. Murphy, guilty of the first degree

murder of Jerry Newingham (720 ILCS 5/9-1(a)(1) (West 2008)) and the attempted first degree

murder of Kevin Wilson (id. §§ 8-4(a), 9-1(a)(1)). Defendant, who was 16 years old at the time

of the August 2009 offenses, was sentenced to consecutive terms of prison, totaling 55 years.

Defendant appeals his convictions and sentence.

¶2            On appeal, defendant argues (1) the State committed plain error by relying on the

prior inconsistent testimony given by Branden White as substantive evidence without sending the

transcripts of that testimony to the jury to prove White had so testified, (2) trial counsel was

ineffective for failing to present evidence in the second trial showing defendant was absent from
school on and around the date a key State witness, Malcolm Spence, claimed defendant made an

inculpatory statement at school, and (3) his 55-year sentence for offenses he committed when he

was only 16 years old was a de facto life sentence imposed in violation of federal and state

authority. We agree with defendant’s sentencing argument and remand.

¶3                                    I. BACKGROUND

¶4            On August 24, 2009, Jerry Newingham and Kevin Wilson encountered a group of

teenage males that, according to the State’s evidence, included defendant, defendant’s 14-year-

old brother Deonta Johnson, Dedrick Rhone, Fredrick Rhone, Malcolm Spence, and Branden

White. Newingham, age 61, was riding his bike when he was attacked. After he fell to the

ground, Newingham was stomped to death by members of the group. The assailants then

attacked Wilson, who was lying near a park pavilion. Emergency personnel found Wilson

bloody, swollen, and unable to walk or answer questions. Wilson survived the attack.

¶5            The State prosecuted the aforementioned juveniles as adults for the first degree

murder of Newingham, the attempted murder of Wilson, and other charges. White entered a

negotiated plea to first degree murder. In exchange for his plea and truthful testimony, White

was sentenced to 20 years in the Illinois Department of Corrections (DOC). Spence pleaded

guilty to mob action and obstruction of justice and agreed to testify truthfully. The charges of

murder and attempted murder against Spence were dismissed. Fredrick and Dedrick entered open

guilty pleas. Fredrick pleaded guilty to murder and was sentenced to 20 years. Dedrick pleaded

guilty to attempted murder of Wilson and received 15 years.

¶6            Defendant and Johnson elected to be tried by a jury on the State’s charges. In

2011, defendant and Johnson were tried jointly and found guilty of murder (Newingham) and


                                             -2-
attempted murder (Wilson). At this trial, Spence testified regarding a conversation he had with

defendant and Johnson:

                     “Q. I’m going to ask you some questions about a

              conversation that occurred about two days after this. Do you

              understand that? About two days after the attack?

                     A. Yes, ma’am.

                     Q. Did you have a conversation with [defendant]?

                     A. Yes, ma’am.

                     Q. And where were you when you had that conversation

              with him?

                     A. At school

                     Q. And what school did you go to at that time?

                     A. MacArthur High School.

                     Q. Did [defendant] also attend MacArthur High School?

                     A. Yes, ma’am.

                     Q. Is MacArthur High School located pretty much right

              next to Garfield Park?

                     A. No.

                     Q. When you spoke to [defendant], was anybody else

              present?

                     A. Yeah.

                     Q. Who else was there?


                                              -3-
       A. His brother and a couple other people.

       Q. When you say, ‘his brother,’ who[m] are you referring

to?

       A. Deonta.

       Q. Okay, and Deonta Johnson?

       A. Yes, ma’am.

       Q. What did [defendant] say to you during that

conversation?

       A. He told me what happened to the dude that got jumped

on at Monroe.

       Q. And when you say that he told you what happened to the

dude that was jumped on at Monroe, what did he say[ ] specifically

happened?

       A. Said they was just walking and he was riding his bike

and he told his brother to go swing on him.

                               ***

       Q. And what did he say next?

       A. He said his brother swung on him and they all just got to

jumping on him.

                               ***

       Q. Did you also have a conversation with Deonta Johnson?

       A. Yes, ma’am.


                               -4-
                        Q. And was it the same time you talked to [defendant] or

                was it a different conversation?

                        A. Same time.

                        Q. Was [defendant] present when you talked to Deonta

                Johnson?

                        A. Yes, ma’am.

                        Q. And was that also at MacArthur High School?

                        A. Yes, ma’am.

                        Q. And what did Deonta Johnson say to you?

                        A. He told me he didn’t know if he could do it. So, he just

                said he did it.

                                               ***

                        Q. What was he talking about?

                        A. Knocking the man off his bike.”

¶7              On cross-examination, defense counsel questioned Spence regarding the alleged

conversation:

                        “Q. You stated that a couple of days afterward, you had a

                conversation at school that involved [defendant] and Mr. Johnson

                and some other people?

                        A. Yes, sir.

                        Q. At MacArthur?

                        A. Yes, sir.


                                                   -5-
                         Q. And at like lunch time or something?

                         A. Yes, sir.”

¶8               To impeach Spence’s testimony, defense counsel introduced defendant’s

attendance records for the dates of August 24 through September 3, 2009. The records are not

included on appeal. Both defendant and the State addressed the records during closing argument.

Defense counsel argued the school records demonstrate Spence’s conversation with defendant

did not occur:

                 “Spence tells us about this mythical conversation that he had with

                 both of the defendants two days after the attack, and I say mythical

                 because it occurred, according to him, at MacArthur School in the

                 cafeteria around lunch time. He said that that’s a school that Mr.

                 Johnson didn’t attend. He wasn’t in MacArthur, and that’s a school

                 that Mr. Murphy, and you’ll see this from the exhibits that we

                 stipulated to at the end of the trial, was absent on both [sic] the

                 26th, 27th, and 28th. So, Mr. Spence testified that he had this

                 conversation where the defendants made statements on an occasion

                 when it couldn’t have happened. I would submit that Mr. Spence’s

                 credibility is zero.”

In contrast, the State, in closing, argued the school records did not undermine Spence’s

testimony, but showed defendant had been suspended from school on the date of the offenses:

                         “There were also school records, as the defendant’s exhibit

                 in this case, that you will see back in the jury room and it shows


                                                -6-
               that [defendant] was not in school in the days that followed this

               offense when Malcolm Spence spoke to him where he talked about

               what he had done to the victim on Sawyer Street. Well, please

               note, when you take that exhibit back in the jury room, that the

               defendant *** wasn’t in school on August [24, 2009,] either. He

               had a school suspension. He was not in school that day, and that’s

               the day that this murder occurred and yet he is on the property of

               MacArthur High School with his brother who goes to the middle

               school right when that school lets out because they’re there from

               the very beginning when Brian Armour and Dedrick Rhone fight.

               So, the fact that he’s not in school does not mean he couldn’t have

               been on the premises. We know that he was on August [24,

               2009].”

¶9             The jury found defendant guilty of both first degree murder and attempted

murder. Defendant appealed his convictions. On appeal, this court concluded defendant was

entitled to summary reversal and a new trial due to “trial counsel’s per se conflict of interest in

contemporaneously representing defendant and [a witness].” People v. Murphy, 2013 IL App

(4th) 111128, ¶ 79, 990 N.E.2d 815.

¶ 10           In April 2017, on remand, defendant’s second jury trial was held. Defendant’s

trial was lengthy and involved a number of witnesses. For this appeal, we will summarize the

testimony of those witnesses necessary to resolve the issues raised by defendant.

¶ 11           At retrial, Spence was called upon by the State to testify regarding the attack on


                                               -7-
Wilson and his conversation with defendant. Spence agreed the conversation occurred “a

couple—two days after that happened in Garfield Park.” Spence testified he was at school and

“[e]verybody was up there.” According to Spence, defendant said, “they had jumped on

somebody before they came up to the park,” and defendant said he told his younger brother

Johnson to punch him. Defendant also said he stomped on the man’s head.

¶ 12          On cross-examination, defense counsel asked questions emphasizing Spence told

the police the “story that you told today” only after having been charged with murder and

attempted murder. Defense counsel further emphasized the charges against Spence had been

dropped. Defense counsel did not seek to admit school records.

¶ 13          Also during retrial, the State called Branden White to testify. White testified in

defendant’s 2011 trial. White acknowledged he, six years earlier, pleaded guilty to the first

degree murder of Newingham. As part of his plea, White was sentenced to 20 years’

imprisonment in exchange for his truthful testimony. The State asked White if he testified at a

hearing on this matter in August 2011. White responded he did not remember. White also did not

remember attending MacArthur High school in Decatur on August 24, 2009. White knew

defendant and refused to describe an item defendant was wearing. White, however, identified

defendant in a photo as formerly “[m]y main man.” The State asked White if he gave testimony

at his sentencing hearing on April 4, 2011. Defendant stated he did not remember. The State

referred to People’s Exhibit No. 25 as a transcript of that proceeding. The State then questioned

White as follows:

                      “Q. Were you asked this question and did you give this

              answer on page 2, line 14 to 16: ‘Q: On August 24, 2009, were you


                                              -8-
present on 500 West Sawyer Street in the afternoon hours? A: Yes,

ma’am.’?

        A. You want me to answer yes, ma’am?

        Q. Were you present and did you give that answer?

        A. I don’t remember.

        Q. And, in fact, were you asked page 2, line 17 to 24: ‘Q.

And was Deonta Johnson also present? A: Yes, ma’am. Q: Was

[defendant] also present? A: Yes, ma’am. ***.’ Were you asked

those questions and did you give that answer on April 4, 2011?

        A. I don’t remember.

                               ***

        Q. And did Deonta Johnson hit [Jerry Newingham] and he

[fell] off his bike?

        A. I don’t remember.

                               ***

        Q. And[,] for counsel, the April 4 transcript, it’s page 3,

lines 8 through 13. Were you asked this question: ‘Q: Did you

observe [defendant] kick and strike Jerry Newingham? A: Yes,

ma’am. Q: Specifically, did [defendant] primarily kick and stomp

on the head of Jerry Newingham? A: Yes, ma’am.’ Were you

asked those questions on April 4, 2011[,] and did you give [ ] those

answers?


                               -9-
       A. I don’t remember.

                               ***

       Q. On April 4, 2011, did you say that you heard [defendant]

bragging about what he did to Mr. Newingham?

       A. I don’t remember.

       Q. For counsel, it’s pages 4 and 5, lines 22 through 24 and

1 through 7. Do you recall being asked this question and giving

these answers: ‘Q. After Jerry Newingham was attacked, did you

hear [defendant] bragging about stomping on Jerry Newingham’s

head? A: Yes, ma’am. Q: And what did he say to the best of your

recollection? A: That he had stomped him, like, 30 times,

something like that.’ Then the Court said to you, ‘could you speak

up, say that again’ and you said that he stomped him like 30 times.

Do you recall being asked those questions and giving that answer?

       A. No. I don’t remember.

                               ***

       Q. And on April 4, 2011, did you say that you saw Kevin

Wilson being attacked at Garfield Park?

       A. I don’t remember.

                               ***

       Q. For counsel, it’s page 6, lines 9 through 10—I’m

sorry—lines 5 through 8: ‘Q: No. But I’ll rephrase that. Did you


                              - 10 -
               observe individuals physically attack Kevin Wilson at Garfield

               Park? A: Yes, ma’am.’ Were you asked that question and did you

               give that answer?

                      A. I don’t remember.

                      Q. And on April 4, 2011, you said that [defendant] was

               involved; isn’t that correct?

                      A. I don’t remember.

                      Q. And for counsel, page 6, lines 9 and 10. Were you asked

               this question: ‘Q: And was [defendant] involved in that attack? A:

               Yes, ma’am.’ Did you give that answer?

                      A. I don’t remember.

                      Q. And on April 4, 2011, did you say that [defendant] used

               both feet to jump on Mr. Wilson?

                      A. I don’t remember.

                      Q. For counsel, same page, lines 11 through 15. Were you

               asked these questions and did you give this answer: ‘Q: And at one

               point, did he jump on Kevin Wilson’s head with both feet? A: Yes,

               ma’am. Q: And you saw that? A: Yes, ma’am.’ Were you asked

               those questions and did you give that answer?

                      A. I don’t remember.”

The State also questioned White regarding his testimony from defendant’s first trial:

                      “Q. I’m going to mark a transcript, partial transcript, from


                                               - 11 -
August 12, 2011[,] as People’s Exhibit No. 26. For counsel, it is

page 9, lines 18 through 24. Were you asked this question and did

you give this answer: ‘Q: And when you say, “not at first,” did

something happen or did you hear something that caused you then

to see this older man—older white male on the bike? A: He fell of

[sic] his bike. Q: And you say “he fell of [sic] his bike.” Did you

see what happened to cause him to fall of [sic] his bike? A: He got

punched.’ Continuing on page 10, lines 1 through 4: ‘Q: And who

punched him? A: Deonta. Q: Deonta? A: Yeah.’ Were you asked

those questions and did you give those answers?

       A. I don’t remember.

       Q. Did your main man, [defendant], participate in the

beating of Jerry Newingham by stomping on his head?

       A. (Laughing) I don’t remember.

                               ***

       Q. Hmmm. And on August 12, 2011, were you asked this

question and did you give this answer? For counsel, it’s page 11,

lines 10 through 21: ‘Q: So when you’re all there on Sawyer Street

and you see Deonta Johnson punching the man, knocking him off

his bike, what do you see next? A: Elliott and Fred stomp him and

Deonta. Q: You say you saw Elliott and that’s [defendant], correct?

A: Yes.’ Is there something else going on that’s got your attention?


                               - 12 -
                      A. No. Just looking for the time.

                      Q. ‘A: Yes. Q: Do you see—you see him stomping the

               man? A: Yes. Q: Do you recall what part of the man’s body you

               saw [defendant] stomping? A: His head. Q: Where is the man—

               you say you knocked him off his bike—where is the man laying

               [sic] at the time the stomping is going on? Do you recall how he

               was positioned on the ground? A: No.’ Were you asked those

               questions and did you give those answers?

                      A. I don’t remember.”

¶ 14           Defense counsel stipulated to the accuracy of the exhibits. Plaintiff’s Exhibits 25

and 26 were admitted into evidence.

¶ 15           At the close of the evidence, the State’s argument referenced White’s testimony

from his plea hearing and defendant’s first trial. The State highlighted White testified defendant

stomped on Wilson’s head and on Newingham’s head “more than five times with a great deal of

force.” The jury found defendant guilty of both first degree murder and attempted first degree

murder.

¶ 16           At sentencing, the trial court observed defendant was 16 years old at the time of

the offense. The court observed defendant “was mature enough and should have known what the

risk and consequences of this behavior was.” The court found defendant was not pressured to

commit the offenses. Regarding the potential for rehabilitation, the court concluded the

following: “Of course, when this incident happened, he was young. So[,] certainly, there is

potential for rehabilitation in the future.” The court sentenced defendant to consecutive terms of


                                              - 13 -
40 years’ imprisonment for first degree murder and 15 years’ imprisonment for attempted first

degree murder.

¶ 17           In his motion to reconsider, defendant argued his sentence was too harsh given his

age and his minimal history of criminality. In deciding to deny the motion to reconsider, the trial

court, in August 2017, made the following remarks:

                        “Of course, the Court did consider factors in aggravation

               and mitigation, the statutory ones, along with the Court also

               considered the defendant’s age, his level of maturity, outside

               pressures, home environment, his potential for rehabilitation, the

               circumstances of this offense, his degree of participation, his prior

               record. So[,] when I considered all of the statutory factors and

               what actually occurred in this, I believe that a sentence of 40 years

               to the [DOC] for the first degree murder was an appropriate

               sentence. I believe a consecutive 15 years for the attempt[ed] first

               degree murder was also an appropriate sentence in this case. Of

               course, it’s mandatory that they be consecutive sentences. So[,] I

               believe that a sentence of 55 years to the [DOC], based on the facts

               and circumstance[s] and all the other statutory factors, was

               appropriate.”

¶ 18           This appeal followed.

¶ 19                                      II. ANALYSIS

¶ 20             A. The State’s Failure to Send a Copy of the Transcripts of Branden White’s Prior


                                               - 14 -
                                         Testimony to the Jury

¶ 21            Defendant argues the State committed plain error by relying on Branden White’s

prior inconsistent testimony as substantive evidence by not proving to the jury White had given

that testimony. Defendant contends, although transcripts of White’s testimony at White’s

sentencing hearing and at defendant’s first trial (People’s Exhibits 25 and 26) were admitted into

evidence, those exhibits were not published to the jury during trial or during deliberations.

Defendant emphasizes the State pointed to White’s earlier testimony repeatedly during closing

argument, despite not presenting the content of that testimony to the jury. According to

defendant, the State’s reliance on evidence not presented to the jury was clear and obvious error,

impacting his right to a fair trial, and because the evidence was closely balanced, he is entitled to

a new trial, despite his failure to raise the issue before the trial court.

¶ 22            The State counters, in part, by emphasizing the jury was informed of defendant’s

prior sworn testimony. The State points to Branden White’s testimony in this trial, where the

prosecutor read from the transcripts during questioning.

¶ 23            The plain error doctrine allows a court of review to provide relief from errors

occurring during trial that were forfeited when not brought to the trial court’s attention. See Ill.

S. Ct. R. 615(a) (eff. Jan. 1, 1967) (“Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the trial court.”). Under the doctrine, a

reviewing court may consider an unpreserved error in one of the following circumstances:

                “(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


                                                  - 15 -
               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, 870 N.E.2d 403, 410 (2007).

¶ 24           The first step in this analysis is determining whether clear or obvious error

occurred. See id. The burden of establishing a clear or obvious error is on defendant. People v.

Reese, 2017 IL 120011, ¶ 72, 102 N.E.3d 126. We are mindful the doctrine should be invoked

only when the record clearly shows an error affecting substantial rights was committed. Id.

¶ 25           Defendant’s claimed error is the State relied in closing argument on “evidence”

not presented to the jury. However, as the State argues, the jury was presented the evidence

during White’s testimony, even though it was not handed the transcripts. The transcripts from

White’s testimony at his own sentencing hearing and at defendant’s first trial were offered to the

trial court and admitted as evidence. Before the court’s admission of those transcripts, defense

counsel conceded their accuracy. Thus, while White testified, the jury heard the State identify the

relevant lines and pages of the transcripts and read White’s earlier statements from that evidence.

Defendant has not established that the State’s closing argument referencing White’s prior

testimony, based on evidence admitted at defendant’s trial and evidence read to the jury, amounts

to clear or obvious error.

¶ 26           Defendant’s primary case on this issue, People v. Jones, 173 Ill. App. 3d 147, 527

N.E.2d 441 (1988), is distinguishable. In Jones, the prosecutor argued improperly the witness’s

prior statement “must have been consistent with his trial testimony based on the prosecutor’s


                                              - 16 -
personal knowledge of the content of the prior statement.” Id. at 151. Unlike in this case, the

Jones witness’s prior statement was not entered into evidence.

¶ 27           Defendant counters the State’s argument is unconvincing on multiple grounds, the

first of which was the State’s failure to cite “law governing prior inconsistent statements under

725 ILCS 5/115-10.1(b) (2017).” Defendant argues a party may not introduce a prior

inconsistent statement by merely asking the witness if he or she gave prior testimony and

eliciting the response the witness did not remember. Defendant maintains, citing People v.

Evans, 2016 IL App (3d) 140120, ¶¶ 33-35, 60 N.E.3d 77, when White stated he could not recall

making the statement, the State was required to offer evidence of the statement. It is, according

to defendant, improper for the State to simply read the question.

¶ 28           This argument fails to recognize the State did offer evidence of the statement—

the transcripts from the hearings in which White made the statements under oath. Even

defendant’s own case law, Evans, recognizes “if the proper foundation had been laid, [the

witness’s] prior trial testimony made under oath could have been admitted substantively as an

‘inconsistent’ statement to [the witness’s] response that he did not remember if he was with

defendant on the day of the murder.” Id. ¶ 35. The Evans court then emphasized the prosecutor

did not offer any substantiating proof of the inconsistent statement to complete the impeachment.

Id. ¶ 36. The State met those requirements here. The jury heard the contents of the substantiating

proof.

¶ 29           Defendant next contends the State’s argument “fails to appreciate the distinction

between admitting evidence to the court and presenting that evidence to the jury.” However,

defendant fails to cite any authority that requires documentary evidence be delivered to the jury


                                              - 17 -
room in order to become evidence. The case law defendant cites only supports the proposition

that a defendant may not suffer prejudice if a piece of documentary evidence, with overly

prejudicial material not seen or heard by the jury, is not sent to the jury room. See, e.g., Reese,

2017 IL 120011, ¶¶ 67, 72 (finding no prejudice when the defendant could not prove the jury

saw the certified copy of defendant’s prior murder conviction that allegedly contained excessive

and irrelevant details); see also People v. Patterson, 2013 IL App (4th) 120287, ¶ 65, 2 N.E.3d

642 (finding the jury did not hear the complained-of evidence as “the State fast-forwarded” parts

of the interview and the record did not indicate what sections were provided to the jury).

¶ 30           Defendant has not met his burden of proving clear or obvious error occurred. He

cannot establish plain error.

¶ 31                B. Defendant’s Claim of Ineffective Assistance of Counsel

¶ 32           Defendant next argues he was denied the effective assistance of counsel when

counsel failed to present evidence showing defendant was absent from school on and around the

date Spence testified defendant made an inculpatory statement at school. Defendant asserts

Spence testified that, two days after the offenses, he and defendant were at school when

defendant admitted his involvement in Newingham’s murder. In the first trial, defense counsel

undermined this testimony with school records indicating defendant was absent from school on

the date the conversation occurred. In the second, however, defense counsel did not offer the

evidence. Defendant maintains the decision was not objectively reasonable and the admission of

the inculpatory statement without challenge by defense counsel prejudiced him, warranting a

new trial. Defendant acknowledges the records also show defendant was suspended from school

on the date of the murder but contends a decision by counsel to forgo introducing the school


                                              - 18 -
records to undermine an inculpatory statement to avoid admitting evidence of a prior bad act was

not a strategic decision reasonable defense counsel would make.

¶ 33          In contrast, the State initially argues this court should decline to address

defendant’s claim, as it would be better presented in postconviction proceedings where a full

record could be presented. The State maintains because the exact nature and content of the

school records from defendant’s first trial are not in the record, any assessment as to trial

counsel’s representation would be speculative.

¶ 34          To prevail on a claim of ineffective assistance of counsel, defendant must show

both the performance of counsel was deficient and the deficient performance prejudiced him.

People v. Peel, 2018 IL App (4th) 160100, ¶ 39, 115 N.E.3d 982. To show deficient

performance, defendant must establish counsel’s performance fell below an objective standard of

reasonableness. People v. Evans, 209 Ill. 2d 194, 219-20, 808 N.E.2d 939, 953 (2004) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). There is a strong presumption the

challenged action or inaction was the product of sound trial strategy and not incompetence.

People v. Haynes, 192 Ill. 2d 437, 473, 737 N.E.2d 169, 189 (2000); see also Peel, 2018 IL App

(4th) 160100, ¶ 39 (“Mistakes in trial strategy or tactics do not necessarily render counsel’s

representation defective.”). A defendant, however, may overcome that presumption if counsel’s

strategy choice “appears so irrational and unreasonable that no reasonably effective defense

attorney, facing similar circumstances, would pursue such a strategy.” People v. King, 316 Ill.

App. 3d 901, 916, 738 N.E.2d 556, 568 (2000).

¶ 35          In general, in Illinois, a defendant must raise a constitutional claim of ineffective

assistance of counsel on direct review or risk forfeiting the claim by not doing so. People v.


                                             - 19 -
Veach, 2017 IL 120649, ¶ 47, 89 N.E.3d 366. Such claims are, however, better suited for

collateral proceedings when the record is incomplete or inadequate to resolve the claim. Id. ¶ 46.

¶ 36           In this case, the record is inadequate to resolve defendant’s ineffectiveness claim.

We do not know the reason, if any, defense counsel did not use the school records in the second

trial. We do not have the school records. What we know from the first trial is defendant was

absent from school on August 24, 26, 27, and 28, and defendant was absent from school on at

least one of those days due to a suspension. A reasonable inference is defendant was not absent

from school on August 25, 2009, the day after the murder. In addition, Spence’s testimony,

through imprecise questions by the State and defense counsel, was indefinite as to the time and

place of the conversation. What we know from Spence’s testimony is that the inculpatory

statement occurred “about two days after the attack.” The conversation occurred “[a]t school”

and “at like lunch time or something.” Because the questions by counsel did not pin down

Spence to a specific time or place, what we know about the school records has little to no effect

in undermining the inculpatory statement that occurred. At the first trial, defense counsel argued

the school records showed the statement, which occurred in the cafeteria on a day defendant was

not at school, establishes the statement did not occur. However, the vague testimony shows the

conversation occurred anywhere on the school grounds at any point in the day “about two days”

after the murder, which would include August 25, 2009, when defendant was not absent from

school. In addition, Spence testified Deonta Johnson was present during the conversation “at

school” when it occurred. The record shows testimony Johnson attended the junior high, which

was next door to the high school, leading to the inference the statement occurred on school

grounds and not in the cafeteria, as defense counsel argued in the first trial. Thus, the fact


                                              - 20 -
defendant was not in class does not mean the conversation could not have occurred, leading

defense counsel to decide whether to allow the jury to hear of defendant’s prior bad act with little

impact on the inculpatory statement.

¶ 37           Defendant argues a decision to forgo using the school records to undermine the

inculpatory statement is “unsound.” Defendant contends “any negative inferences that the jury

could make from that suspension paled in comparison to the evidence of [defendant’s] alleged

inculpatory statements that the school records would have rebutted.” According to defendant,

“[t]he latter served as direct evidence to corroborate [defendant’s] guilt in the charged crimes,

while the former merely showed [defendant] had violated a school rule.”

¶ 38           This argument is unpersuasive. In addition to the low impeachment value due to

the questions posed to Spence, the absence of records prevents us from knowing the school rule

defendant violated. If the rule violated by defendant involved fighting, inciting a fight, or lying, a

decision by defense counsel to forgo delving into these matters before the jury would, in these

circumstances, seem reasonable. If the violated school rule involved a minor matter such as

tardiness, the question may be closer. The record is inadequate to resolve this question. It is

better for defendant to reserve this claim for a collateral proceeding, where school records and

other evidence may be considered. See, e.g., 725 ILCS 5/122-2 (West 2018) (authorizing the

attachment of records or other evidence to support postconviction claims).

¶ 39                                       C. Sentencing

¶ 40           Defendant last argues his 55-year sentence for crimes he committed when he was

16 years old is a de facto life sentence in violation of federal and state authority. His first

argument on this issue is his sentence violates the eighth amendment’s prohibition against cruel


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and unusual punishment. Defendant, citing Montgomery v. Louisiana, 577 U.S. ___, ___, ___,

136 S. Ct. 718, 726, 733-34 (2016), asserts the eighth amendment allows a sentence of life

imprisonment without parole for only “the rarest of children” who are permanently incorrigible

and possess “such irretrievable depravity that rehabilitation is impossible.” According to

defendant, the trial court’s finding defendant possessed rehabilitative potential foreclosed his

de facto life sentence.

¶ 41           The State disagrees. Initially conceding, under People v. Buffer, 2019 IL 122327,

¶¶ 36-42, defendant’s 55-year sentence is a de facto life sentence, the State argues a juvenile may

be given a de facto life sentence if the sentencing court first considers the defendant’s youth and

its attendant characteristics, which was done here. The State concludes the trial court complied

with the law in considering these factors and, therefore, could properly sentence defendant to

life.

¶ 42           It is by now well established “youth matters in sentencing.” People v. Holman,

2017 IL 120655, ¶ 33, 91 N.E.3d 849. In Miller v. Alabama, 567 U.S. 460, 474 (2012), the

United States Supreme Court held states may not impose their “most severe penalties on juvenile

offenders *** as though they were not children” and concluded mandatory life sentences without

the possibility of parole for juveniles violate the eighth amendment’s prohibition against cruel

and unusual punishment. The Miller Court noted three important ways children constitutionally

differ from adults for sentencing purposes: (1) children are less mature than adults and possess

an underdeveloped sense of responsibility, (2) children are more vulnerable than adults to

negative influence and pressure from peers and family, and (3) the character of a child is less

fixed, meaning the conduct of the child is less likely indicative of irretrievable depravity. Id. at


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471; see People v. Harris, 2018 IL 121932, ¶ 55, 120 N.E.3d 900.

¶ 43           While finding mandatory sentences of life imprisonment without the possibility of

parole for a juvenile are prohibited, the Miller Court acknowledged the harshest penalty may be

appropriate. However, it cautioned, “given all we have said in Roper [v. Simmons, 543 U.S. 551,

573 (2005)], Graham [v. Florida, 560 U.S. 48, 68 (2010)], and this decision about children’s

diminished culpability and heightened capacity for change, we think appropriate occasions for

sentencing juveniles to this harshest possible penalty will be uncommon.” Miller, 567 U.S. at

479. Later, in Montgomery, which held Miller applied retroactively, the Court observed Miller

established life without parole is justified when a sentencing court “encounter[s] the rare juvenile

offender who exhibits such irretrievable depravity that rehabilitation is impossible.”

Montgomery, 577 U.S. at ___, ___, 136 S. Ct. at 733, 736.

¶ 44           The Supreme Court of Illinois has interpreted Miller and Montgomery as allowing

a juvenile to be sentenced to life without parole if the sentencing court finds “the defendant’s

conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption

beyond the possibility of rehabilitation.” Holman, 2017 IL 120655, ¶ 46. The Holman court

found a sentencing court may make such a finding upon considering the juvenile’s youth and

youth’s attendant characteristics. The attendant characteristics include, but are not limited to, the

following factors referred to as the Miller factors (see id. ¶¶ 43, 45):

               “(1) the juvenile defendant’s chronological age at the time of the

               offense and any evidence of his particular immaturity, impetuosity,

               and failure to appreciate risks and consequences; (2) the juvenile

               defendant’s family and home environment; (3) the juvenile


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               defendant’s degree of participation in the homicide and any

               evidence of familial or peer pressures that may have affected him;

               (4) the juvenile defendant’s incompetence, including his inability

               to deal with police officers or prosecutors and his incapacity to

               assist his own attorneys; and (5) the juvenile defendant’s prospects

               for rehabilitation.” Id. ¶ 46 (citing Miller, 567 U.S. at 477-78).

¶ 45           Since Miller, our General Assembly enacted section 5-4.5-105 of the Unified

Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)), mandating a sentencing court to

consider specific factors before imposing a sentence on individuals under 18 at the time of the

offense. Section 5-4.5-105 is not limited to individuals whose offenses have exposed them to a

possible life sentence. The section 5-4.5-105 factors are similar to those in Miller:

                       “(1) the person’s age, impetuosity, and level of maturity at

               the time of the offense, including the ability to consider risks and

               consequences of behavior, and the presence of cognitive or

               developmental disability, or both, if any;

                       (2) whether the person was subjected to outside pressure,

               including peer pressure, familial pressure, or negative influences;

                       (3) the person’s family, home environment, educational and

               social background, including any history of parental neglect,

               physical abuse, or other childhood trauma;

                       (4) the person’s potential for rehabilitation or evidence of

               rehabilitation, or both;


                                               - 24 -
                          (5) the circumstances of the offense;

                          (6) the person’s degree of participation and specific role in

               the offense, including the level of planning by the defendant before

               the offense;

                          (7) whether the person was able to meaningfully participate

               in his or her defense;

                          (8) the person’s prior juvenile or criminal history; and

                          (9) any other information the court finds relevant and

                          reliable, including an expression of remorse, if appropriate.

                          However, if the person, on advice of counsel chooses not to

                          make a statement, the court shall not consider a lack of an

                          expression of remorse as an aggravating factor.” Id. § 5-

                          4.5-105(a)(1)-(9).

See also Holman, 2017 IL 120655, ¶ 45 (observing “consideration of the Miller

factors is consistent with section 5-4.5-105”).

¶ 46           Miller’s holding has been extended to include life sentences imposed at the trial

court’s discretion (id. ¶ 40) and sentences that are de facto life sentences, i.e., sentences that

cannot be served in a lifetime (People v. Reyes, 2016 IL 119271, ¶ 9, 63 N.E.3d 884). Recently,

the supreme court defined a de facto life sentence for juveniles as one of more than 40 years. See

Buffer, 2019 IL 122327, ¶¶ 39-42. As the State acknowledges, defendant’s 55-year sentence is a

de facto life sentence.

¶ 47           The State’s position focuses too narrowly on the list of factors in Holman and on


                                                  - 25 -
the factors of section 5-4.5-105. This approach plainly ignores the language preceding Holman’s

list of factors and establishing that a life sentence without parole is permissible “only if the trial

court determines that the defendant’s conduct showed irretrievable depravity, permanent

incorrigibility, or irreparable corruption beyond the possibility of rehabilitation” after an

examination of youth and its attendant characteristics. Holman, 2017 IL 120655, ¶ 46. Only after

consideration of youth and its attendant circumstances, as in the Miller factors or those in section

5-4.5-105, and a finding of “irretrievable depravity, permanent incorrigibility, or irreparable

corruption beyond the possibility of rehabilitation” (id.) will the eighth amendment’s bar against

cruel and unusual punishment yield to a de facto life sentence without possibility of parole for a

juvenile. See Montgomery, 577 U.S. at ___, 136 S. Ct. at 733 (concluding Miller establishes life

without parole is justified when a sentencing court “encounter[s] the rare juvenile offender who

exhibits such irretrievable depravity that rehabilitation is impossible”). Tellingly, the supreme

court’s analysis in Holman is consistent with this interpretation of the law. The Holman court

affirmed the juvenile’s life sentence upon examination of the trial court’s analysis of the Miller

factors and a showing “defendant’s conduct placed him beyond rehabilitation.” Holman, 2017 IL

120655, ¶ 50.

¶ 48            Here, the life sentence followed an express finding defendant possessed

rehabilitative potential. The determination defendant, a juvenile, had the potential to rehabilitate

contravenes any conclusion defendant was permanently incorrigible or irretrievably depraved

and is, therefore, unconstitutionally at odds with a de facto life sentence without parole for a

juvenile offender. See Montgomery, 577 U.S. at ___, 136 S. Ct. at 733 (“Rehabilitation cannot

justify the sentence, as life without parole ‘forswears altogether the rehabilitative ideal.’ ”


                                                - 26 -
(quoting Miller, 567 U.S. at 473)). Defendant’s de facto life sentence, imposed after a finding

defendant possessed rehabilitative potential, violates the eighth amendment’s ban against cruel

and unusual punishment. Defendant must be resentenced.

¶ 49                                  III. CONCLUSION

¶ 50           We affirm defendant’s convictions. We vacate defendant’s sentence and remand

for resentencing.

¶ 51           Affirmed in part, vacated in part, and remanded.




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