                                      2018 IL App (1st) 160030

                                            No. 1-16-0030

                                   Opinion filed September 28, 2018 


                                                                           FOURTH DIVISION

                                                IN THE


                                  APPELLATE COURT OF ILLINOIS


                                          FIRST DISTRICT



     THE PEOPLE OF THE STATE OF                     )      Appeal from the Circuit Court
     ILLINOIS,                                      )      of Cook County.
                                                    )
          Respondent-Appellee,                      )
                                                    )
          v.                                        )      No. 00 CR 11338
                                                    )
     DANIEL RODRIGUEZ,                              )      The Honorable
                                                    )      Thomas J. Byrne,
          Petitioner-Appellant.                     )      Judge, presiding.



                    JUSTICE GORDON delivered the judgment of the court, with opinion.
                    Presiding Justice McBride specially concurred, with opinion.
                    Justice Burke dissented, with opinion.


                                            OPINION

¶1             Defendant Daniel Rodriguez appeals from the second-stage dismissal of two of the

       claims in his petition for postconviction relief. A third claim in his petition proceeded to a

       third-stage evidentiary hearing. However, defendant does not appeal the dismissal of the third

       claim. Thus, procedurally, our review on appeal is as if the appeal were from a second-stage

       dismissal.

¶2             Defendant, who was 15 years old at the time of the offense, was tried as an adult and

       convicted by a jury of first degree murder in connection with the drive-by shooting of 18­
     No. 1-16-0030


         year-old Ricardo Vasquez on April 1, 2000. Additionally, the jury found that defendant

         personally discharged the firearm that proximately caused Vasquez’s death. On December

         28, 2006, defendant was sentenced to 45 years with the Illinois Department of Corrections

         (IDOC), which was the mandatory minimum sentence he could have received and which

         included a 25-year enhancement for personally discharging the firearm.

¶3                At the 2006 sentencing in this case, the trial court observed that defendant’s 45-year

         sentence in the case at bar was required to run consecutively to a prior sentence. On June 9,

         2005, defendant had been sentenced in an unrelated case to 20 years for attempted first

         degree murder. Defendant claims that, as a result, he will not be released until he is 83 years

         old. 1

¶4                On this appeal, defendant makes two claims: (1) that he made a substantial showing

         of ineffective assistance of trial counsel because counsel failed to investigate an alibi witness

         and failed to call her to testify that defendant was at a gang meeting with her at the time of

         the shooting; and (2) that his case should be remanded for resentencing because de facto life

         imprisonment, imposed against a juvenile offender as the result of mandatory sentencing

         laws, violates the eighth amendment and the proportionate penalties clause. For the following

         reasons, we do not find his first claim persuasive, but we remand for resentencing.

¶5                                                BACKGROUND

¶6                In sum, the State’s evidence at trial established that the murder of 18-year-old

         Vasquez was the result of a gang-related, drive-by shooting on April 1, 2000, at 9:20 p.m. on

             1
              The State did not dispute this fact in its brief to this court. However, during oral argument before
     this court on August 9, 2018, the State asserted, for the first time, that defendant will be released at age
     77. Oral argument is not the place to raise arguments for the first time. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1,
     2017) (“Points not argued are waived and shall not be raised in *** oral argument ***.”). However, as we
     discuss in greater detail below, whether defendant’s release will be at age 83 or 77 does not alter the
     substance of our analysis.
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        South Escanaba Street in Chicago. Defendant was stopped by police a mile from the crime

        scene, only two hours later, in a vehicle that matched the description provided by

        eyewitnesses of the shooter’s vehicle. At a show-up identification held on the street shortly

        after defendant was stopped, two eyewitnesses identified defendant as the shooter. Another

        eyewitness, although unable to identify the shooter, was able to identify defendant’s vehicle

        as the shooter’s vehicle. The parties stipulated that a gunshot reside test performed, shortly

        after the stop, on defendant’s hands was positive for the presence of gunshot residue. In

        addition, another witness testified that defendant told him that defendant was seeking a gun

        because another gang had hit his vehicle.

¶7                This court already described in detail the evidence at trial when we reviewed this case

        on appeal. See People v. Rodriguez, 387 Ill. App. 3d 812 (2008). As a result, we will not

        repeat that level of detail here, and we incorporate our prior opinion by reference. We set

        forth below a description of the evidence at trial sufficient to understand the issues on this

        appeal.

¶8                At the trial, Carlos Luna testified that he was 25 years old and that, in 2000 when the

        shooting occurred, he was a member of the Latin Dragons gang. On April 1, 2000, the night

        of the shooting, he was standing with a group of friends, including six gang members, in

        front of a house on South Escanaba Avenue, when he observed a four-door grey Cadillac

        Sevilla approaching slowly with a driver and passenger. Luna approached the vehicle and

        was 15 feet away from it when the driver leaned back and the passenger opened fire, hitting

        Vasquez. Later that night, when Luna viewed a photo array at the police station, he was not

        able to identify either the driver or passenger of the vehicle.




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¶9               Camelia Prado testified that she was 29 years old and that, in 2000, she was also a

          member of the Latin Dragons gang. She was on the porch of the house on South Escanaba

          Avenue, when she observed a Cadillac approaching slowly, with the driver’s window down.

          The driver leaned back, and the passenger started shooting, hitting Vasquez. Prado called the

          police, and when they arrived, she provided a description of the vehicle. An hour later, Prado,

          Antoine Lacy and Joseph Gonzalez went to view defendant’s vehicle, which she identified as

          the shooter’s vehicle. However, she could not identify the shooter.

¶ 10             Gonzalez testified that he had been convicted of possession of a handgun and that, in

          2000, he was a member of the Latin Dragons. On April 1, 2000, at 9:20 p.m., he was on the

          steps in front of a house on South Escanaba Avenue, when he observed a “short-body,” four-

          door vehicle approach slowly, with a driver and one passenger. The driver leaned back, and

          the passenger, whom Gonzalez identified as defendant, fired shots, hitting Vasquez. After the

          police arrived, Gonzalez provided a description of both the shooter and the vehicle. Another

          10 or 20 minutes later, the police asked him to travel to another location where he identified

          both the shooter and his vehicle. At the time of the identification, Gonzalez was sitting in the

          back seat of a vehicle with Prado and another individual, while the police shined a light on

          the suspect. On cross, Gonzalez admitted that he had lied when he testified in front of the

          grand jury that he was not a member of a gang.

¶ 11             Lacy testified that he was currently incarcerated due to felony convictions for

          aggravated assault and weapons possession and that, in April 2000, he was 17 or 18 years old

          and a member of the Latin Dragons. Lacy testified that, in 2000, the rivals of the Latin

          Dragons were the Latin Kings. On April 1, 2000, he was with a group of his friends,

          including the victim, Vasquez, whom Lacy described as “[o]ne of my gang-affiliated


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       No. 1-16-0030


          friends.” At 9:20 p.m., Lacy was standing on the sidewalk, when he observed a Buick or

          Cadillac approaching slowly. Lacy was 12 to 13 feet away from the vehicle when he looked

          into the vehicle and recognized the passenger because he had “seen him in the mall before.”

          The passenger, whom Lacy identified as defendant, started firing through the driver’s side

          window as the driver leaned back. Later the police informed him “that they had caught the

          shooter,” and he traveled with Prado and Gonzalez to that location. Lacy identified the

          vehicle as the shooter’s vehicle and defendant as the shooter. During the identification, the

          police placed defendant in front of their vehicle and focused their high beams on him.

¶ 12             Officer Edward Maras of the Chicago police department testified that on April 1,

          2000, at 10:20 p.m., he was approximately a mile from the shooting when he observed

          defendant alone in a vehicle that matched the description of the shooter’s vehicle. After

          Officer Maras stopped defendant’s vehicle, he asked other officers to bring the witnesses to

          his location, and they subsequently conducted a show-up identification.

¶ 13             Prior to the testimony of Francisco Ortiz, defense counsel moved in limine to bar the

          State from asking Ortiz whether defendant was a member of the Latin Kings, which Lacy had

          already testified were the rivals of the Latin Dragons at the time of the shooting. The trial

          court ruled that, if the defense “open[ed] the door,” then the trial court would permit the State

          to ask about defendant’s gang affiliation.

¶ 14             When moving to bar defendant’s gang membership, defense counsel argued:

                       “Although it’s not the next witness, the next witness after that is going to be a

                 yound man by the name of Francisco Ortiz ***. One of the things I believe he may

                 testify to is that [defendant] is a member of the Latin Kings. I would ask as an




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                 in limine motion that Mr. Ortiz not be able to indicate that [defendant] is a member of

                 the Latin Kings.”

¶ 15             The State responded:

                       “We believe that it is relevant as the statement that [defendant] makes to Mr.

                 Ortiz is that he was upset, blasting a rival gang for damaging his car; therefore, he

                 wanted to take some sort of action against the rival gang and that he was speaking to

                 a fellow gang member and asking him for a gun.”

¶ 16             After listening to the attorneys for both sides, the trial court ruled:

                       “I really don’t see any reason why you have to say that the defendant belongs to a

                 gang. If there’s anything, however, [defense counsel], on cross at all why [defendant]

                 asked Mr. Ortiz for the gun, I’m going to let them know because they are gang

                 members because you are putting something into the case.”

¶ 17             The trial court further explained:

                       “[Defense counsel], if you elicit Mr. Ortiz is in a gang, I’m going to let the State

                 elicit that—if [defense counsel] crosses Mr. Ortiz about him being in a gang or a gang

                 member, then, of course, I’m going to allow the State to bring out the fact that the

                 defendant is in a gang. That shows why he asked for something. If you open the door

                 at all, I will let it in because it’s absolutely completely proper.”

          The trial court emphasized to defense counsel: “If you open it, the State can step right in.”

          The prosecutor then represented to the trial court that he had instructed Ortiz “not to mention

          he’s in a gang and the defendant is in a gang.”

¶ 18             Francisco Ortiz testified that he was currently incarcerated on four felony convictions

          and that, in April 2000, he was 15 years old and had known defendant for a year. On April 1,

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          2000, at 10 a.m. or noon, defendant visited Ortiz at Ortiz’s home and asked if Ortiz had a

          gun. Defendant stated that he wanted a gun because “he wanted to take care of some

          business.” Defendant explained that some Latin Dragons had hit his vehicle the night before

          and dented the passenger side. Ortiz specifically testified that he did not give defendant a

          gun. Ortiz also testified that defendant drove a Buick or Cadillac and identified photos of

          both defendant and defendant’s vehicle.

¶ 19             The jury heard several stipulations, including a stipulation that a gunshot residue kit

          was administered to defendant’s hands on April 1, 2000, at 11:40 p.m., approximately two

          hours after the shooting, and that a proper chain of custody was maintained of the kit at all

          times. The parties also stipulated that, after defendant was released on bond on June 4, 2001,

          for this case, he failed to appear and he was not apprehended until almost three years later, on

          February 19, 2004.

¶ 20             Scott Rochowicz, a forensic scientist with the Illinois State Police, testified that he

          had tested the gunshot residue recovered from defendant’s hands on April 1, 2000, and that,

          in his opinion, to a reasonable degree of scientific certainty, the level of residue was

          “consistent with” defendant’s “discharging a firearm, handling a firearm or being in close

          proximity to a firearm when it was discharged.”

¶ 21             Adrienne Segovia, a deputy medical examiner with Cook County, testified that the

          victim, Vasquez, died from a bullet that pierced his arm, lungs, and heart.

¶ 22             On September 21, 2005, the jury found defendant guilty of both first degree murder

          and of having personally discharged the firearm that proximately caused Vasquez’s death.

¶ 23             On November 1, 2005, defendant filed two posttrial motions for a new trial and

          included an affidavit from Francisco Ortiz recanting his trial testimony. Ortiz had testified at


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          trial that defendant had wanted a gun. The trial court held a posttrial hearing at which Ortiz

          testified. The trial court found Ortiz to be a “liar” and denied the motions.

¶ 24             On December 28, 2006, the trial court sentenced defendant to the minimum, which

          was 45 years with IDOC. The 45-year sentence included a 25-year enhancement for

          personally discharging the firearm proximately causing Vasquez’s death, and it ran

          consecutively to a prior 20-year sentence for an unrelated attempted first degree murder

          conviction.

¶ 25             Defendant appealed, challenging the use of an Illinois pattern jury instruction and

          claiming that trial counsel was ineffective for failing to move to suppress the show-up

          identifications conducted immediately after defendant was stopped. This court did not find

          these claims persuasive and affirmed. Rodriguez, 387 Ill. App. 3d at 833.

¶ 26             On November 4, 2009, defendant filed a pro se postconviction petition with

          numerous claims. The petition advanced to the second stage of postconviction proceedings,

          where defendant received counsel. Defendant’s counsel filed a supplemental petition

          asserting three claims: (1) that trial counsel was ineffective for failing to investigate Lucy

          Avila, an alibi witness, who would have testified that defendant was with her at a gang

          meeting at the time of the shooting; (2) that, because defendant was 15 years old at the time

          of the offense, his de facto life sentence was unconstitutional; and (3) that an affidavit from

          Lacy was newly discovered evidence showing that Lacy had falsely identified defendant as

          the shooter. The supplemental petition was supported by affidavits from both (1) Avila, the

          proposed alibi witness, and (2) Lacy, the recanting trial witness.

¶ 27             The trial court dismissed defendant’s (1) ineffectiveness claim and (2) sentencing

          claim at the second stage. It is the dismissal of these two claims that defendant now contests


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          on this appeal. With respect to the ineffectiveness claim, the trial court found that it was a

          matter of trial strategy whether to avoid presenting evidence of defendant’s gang

          membership.

¶ 28               In his pro se petition, defendant stated, under penalties of perjury, that he had

          discussed with his trial counsel whether to call Avila as an alibi witness and his counsel had

          responded: “I didn’t think it was a good idea to present some young, Latina, female who

          would put you at a junta with some Latin Kings as an alibi defense. It would definitely get

          you convicted.” Defendant stated that he agreed “because he thought trial counsel knew

          best.”

¶ 29               Specifically, in his pro se petition, defendant had stated:

                       “During the time span in which [defendant] was incarcerated in Cook County Jail,

                   trial counsel visited him briefly on two occasions: on 2/29/04 and 10/3/05. During

                   these visits [defendant] discussed the fact that a person by the name of Lucy Avila

                   had contacted one of his friends and told him that she was on 99th and Ewing when

                   the murder occurred and that [defendant] was present also. Avila also informed

                   [defendant]’s friend that she wanted to testify and wanted to be a witness for

                   [defendant]. ***

                       [Defendant] not knowing this witness, informed trial counsel that Avila wanted to

                   be contacted by her phone [number] or by sending someone to her residence.

                       The day trial commenced the trial court asked trial counsel if he was presenting an

                   alibi defense. Trial counsel asked for a moment to speak with [defendant]. During this

                   brief discussion [defendant] asked trial counsel about Avila. Trial counsel responded

                   by saying, ‘I didn’t think it was a good idea to present some young, Latina, female


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                  who would put you at a junta with some Latin Kings as an alibi defense. It would

                  definitely get you convicted.’

                        Afterwards, [defendant] told [the] trial court that he did not have an alibi witness

                  for [the] defense because he thought trial counsel knew best.”

¶ 30          Defendant attached to his pro se petition an affidavit from Avila, stating in full:

                        “I, Lucy Avila, being first duly sworn state on [sic] oath, that if called to testify in

                  the matter of People v. Rodriguez, No. 00-CR-11338, I would testify as follows:

                        1. That on the night of April 1, 2000, I was on 99th & Ewing [S]t., at the hours of

                  9:00 p.m.—10:30 p.m.[2]

                        2. During this time on this date I did not know [defendant] and had seen him for

                  the first time ever on this date.

                        3. During the entire time I was on 99th & Ewing [S]t. I observed [defendant]

                  present so he could not of [sic] committed the murder in the above case.

                        4. I did give [defendant]’s friend my phone [number] and address to have his

                  lawyer contact me and discuss [defendant]’s alibi.

                        5. [Defendant]’s friend did tell me that he gave my information to [defendant].

                  And that [defendant] said his Lawyer would contact me soon.

                        6. I was never contacted by [defendant]’s lawyer or anyone else on behalf of

                  [defendant]’s legal representation. Further affiant sayeth not.”

¶ 31	             The supplemental postconviction petition filed by counsel observed that Avila’s

           affidavit was already attached to defendant’s pro se petition, and the supplemental petition



              2
               Officer Maras testified at trial that he arrested defendant at a different location at 10:20 p.m.
                                                            10 

       No. 1-16-0030


          also attached an affidavit from defendant verifying the allegations in his pro se petition as

          true.

¶ 32              At the second-stage hearing, the following colloquy occurred concerning Avila and

          her proposed alibi:

                       “DEFENSE COUNSEL: As far as we’re concerned, Judge, [defendant]’s

                  allegations *** that he told the attorney about Avila, and Avila’s affidavit that she

                  was never contacted, so there was a potential alibi witness that was never really

                  considered.

                       THE COURT: [Counsel], you agree or do you agree that had she been contacted,

                  she would have said that [defendant] was at the junta, that he was at a gang

                  meeting[?]

                       DEFENSE COUNSEL: Yes, Judge.”

¶ 33              After listening to counsel’s arguments at the second-stage hearing, the trial court

          observed, in part, with respect to Avila:

                       “The record makes it clear that it was clear to the trial attorney that this was an

                  issue, that there was strategy involved here regarding whether it was beneficial to

                  point out to a jury that [defendant] was with gang members, and therefore, could

                  present people who were at the junta.”

¶ 34      The trial court further observed that, even if trial counsel did not contact Avila, this did not

                       “change the nature of the defense that she would have presented, the nature of the

                  alibi, which it was clear to me from the record, it is established by the record was a

                  decision that was made as part of a strategy by [trial counsel], and it was signed onto

                  by [defendant].”

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¶ 35             After dismissing the claims at issue here at the second stage, the trial court held a

          third-stage evidentiary hearing on the sole remaining claim. The third claim was that Lacy’s

          recantation affidavit was newly discovered evidence that would probably change the result at

          a retrial. At trial, Lacy had identified defendant as the shooter. At the evidentiary hearing,

          Lacy testified that he had not observed the shooter. On October 27, 2015, the trial court

          denied this claim, and this claim is not at issue on this appeal.

¶ 36             On November 18, 2015, defendant filed a notice of appeal, and this timely appeal

          followed.

¶ 37                                              ANALYSIS

¶ 38             Defendant appeals the second-stage dismissal of the following two postconviction

          claims. First, he claims that he made a substantial showing of ineffective assistance of trial

          counsel where trial counsel failed to investigate an alibi witness and failed to call her to

          testify that defendant was at a gang meeting with her at the time of the shooting. Second,

          defendant claims that his case should be remanded for resentencing because de facto life

          imprisonment, imposed against a juvenile offender as the result of mandatory sentencing

          laws, violates the eighth amendment and the proportionate penalties clause. For the following

          reasons, we are not persuaded by his first claim, but we remand for resentencing.

¶ 39                                 I. Stages of a Postconviction Petition

¶ 40             Under the Post-Conviction Hearing Act (Act), individuals convicted of a criminal

          offense may challenge their convictions if there was a violation of their constitutional rights.

          See 725 ILCS 5/122-1 et seq. (West 2016); see also People v. Domagala, 2013 IL 113688,

          ¶ 32. The Act provides for three stages of review by the trial court. At the first stage, the trial




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          court may summarily dismiss a petition that is frivolous or patently without merit. 725 ILCS

          5/122-2.1(a)(2) (West 2016); Domagala, 2013 IL 113688, ¶ 32.

¶ 41             If the trial court does not dismiss a petition at the first stage, the petition advances to

          the second stage, where counsel is appointed if a defendant is indigent. After counsel

          determines whether to amend the petition, the State may file either a motion to dismiss or an

          answer to the petition. 725 ILCS 5/122-4, 122-5 (West 2016); Domagala, 2013 IL 113688,

          ¶ 33. At the second stage, the trial court must determine whether the petition and any

          accompanying documents make a “substantial showing of a constitutional violation.” People

          v. Edwards, 197 Ill. 2d 239, 246 (2001).

¶ 42             If the defendant makes this showing at the second stage, then the petition advances to

          a third-stage evidentiary hearing. At a third-stage evidentiary hearing, the trial court acts as

          factfinder, determining witness credibility and the weight to be given particular testimony

          and evidence and resolving any evidentiary conflicts. Domagala, 2013 IL 113688, ¶ 34.

¶ 43                                       II. Standard of Review

¶ 44             In this appeal, the trial court dismissed defendant’s postconviction claims at issue

          during the second stage. During a second-stage dismissal hearing, the defendant bears the

          burden of making a substantial showing of a constitutional violation. Domagala, 2013 IL

          113688, ¶ 35.

¶ 45             At this stage, the trial court accepts as true all well-pled facts that are not positively

          rebutted by the record. Domagala, 2013 IL 113688, ¶ 35 (citing People v. Coleman, 183 Ill.

          2d 366, 385 (1998)). There is no fact finding or credibility determination at this stage.

          Domagala, 2013 IL 113688, ¶ 35 (citing Coleman, 183 Ill. 2d at 385). As a result, the State’s

          motion to dismiss raises solely the issue of whether the petition is sufficient as a matter of


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          law. Domagala, 2013 IL 113688, ¶ 35 (citing Coleman, 183 Ill. 2d at 385). The question

          before the court is whether the petition’s well-pled allegations, “if proven at an evidentiary

          hearing,” would entitle the defendant to relief. (Emphasis in original.) Domagala, 2013 IL

          113688, ¶ 35. Since this is a purely legal question, our review at the second stage is de novo.

          Coleman, 183 Ill. 2d at 387-89. De novo consideration in the case at bar means that we

          perform the same analysis that the trial judge would have performed, if we had been sitting

          during the second-stage dismissal hearing. People v. Tolefree, 2011 IL App (1st) 100689,

          ¶ 25 (citing Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011)).

¶ 46                           III. Strickland and Ineffectiveness of Counsel

¶ 47             Defendant’s first claim is that his counsel was ineffective.

¶ 48             Every Illinois defendant has a constitutional right to the effective assistance of

          counsel under the sixth amendment to the United States Constitution and the Illinois

          Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Domagala, 2013 IL

          113688, ¶ 36. Claims of ineffective assistance are judged against the standard set forth in

          Strickland v. Washington, 466 U.S. 668 (1984). Domagala, 2013 IL 113688, ¶ 36 (citing

          People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting Strickland for Illinois)). To prevail

          on a claim of ineffective assistance, a defendant must show both (1) that counsel’s

          performance was deficient and (2) that this deficient performance prejudiced defendant.

          Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 687).

¶ 49             To establish the first prong, that counsel’s performance was deficient, a defendant

          must show “that counsel’s performance was objectively unreasonable under prevailing

          professional norms.” Domagala, 2013 IL 113688, ¶ 36. Counsel’s performance “must be

          evaluated based on the entire record.” People v. Kirklin, 2015 IL App (1st) 131420, ¶ 114.


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¶ 50             To establish the second prong, that this deficient performance prejudiced the

          defendant, the defendant must show that there is a reasonable probability that, but for

          counsel’s unprofessional errors, the result of the proceeding would have been different.

          Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 694). “[A] reasonable

          probability that the result would have been different is a probability sufficient to undermine

          confidence in the outcome—or put another way, that counsel’s deficient performance

          rendered the result of the trial unreliable or fundamentally unfair.” People v. Evans, 209 Ill.

          2d 194, 220 (2004); People v. Colon, 225 Ill. 2d 125, 135 (2007). Thus, to satisfy the second

          prong of Strickland, at a second-stage postconviction proceeding, a defendant must make

          only a substantial showing of a reasonable probability. See Domagala, 2013 IL 113688, ¶ 35.

¶ 51             Although the Strickland test is a two-prong test, our analysis may proceed in any

          order. Since a defendant must satisfy both prongs of the Strickland test in order to prevail, a

          trial court may dismiss the claim if either prong is missing. People v. Peterson, 2017 IL

          120331, ¶ 79; People v. Cherry, 2016 IL 118728, ¶ 24; People v. Flores, 153 Ill. 2d 264, 283

          (1992). Thus, if a court finds that defendant was not prejudiced by the alleged error, it may

          dismiss on that basis alone without further analysis. People v. Graham, 206 Ill. 2d 465, 476

          (2003); Albanese, 104 Ill. 2d at 527.

¶ 52                                  IV. Trial Strategy and Strickland

¶ 53             In the case at bar, defendant claims that his trial counsel’s performance was

          “objectively unreasonable under prevailing professional norms” for both failing to investigate

          and failing to call a particular alibi witness at trial. See Domagala, 2013 IL 113688, ¶ 36.

¶ 54             “A defense counsel has a professional duty to conduct a reasonable investigation or

          make a reasonable decision that a particular investigation is not necessary.” People v.


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          Robinson, 2017 IL App (1st) 161595, ¶ 99; Domagala, 2013 IL 113688, ¶ 38. However, any

          lack of investigation is judged against a standard of reasonableness, given “all the

          circumstances” and “applying a heavy measure of deference to counsel’s judgments.”

          (Internal quotation marks omitted.) People v. Guest, 166 Ill. 2d 381, 400 (1995).

¶ 55             In addition, “the decision whether to call a certain witness for the defense is a matter

          of trial strategy, left to the discretion of counsel after consultation with the defendant.”

          Peterson, 2017 IL 120331, ¶ 80. As a result, “such decisions will not ordinarily support a

          claim of ineffective assistance of counsel.” Peterson, 2017 IL 120331, ¶ 80. Even “a mistake

          in trial strategy” will not, by itself, render representation constitutionally defective. Peterson,

          2017 IL 120331, ¶ 80.

¶ 56             In the case at bar, defendant concedes that his proposed alibi witness, Avila, would

          have placed him at a gang meeting at the time of the shooting. At the second-stage dismissal

          hearing, the trial court specifically inquired about this point, and the defense conceded it:

                       “THE COURT: [Counsel], you agree or do you agree that had [Avila] been

                 contacted, she would have said that [defendant] was at the junta, that he was at a gang

                 meeting[?]

                       DEFENSE COUNSEL: Yes, Judge.”

¶ 57             The State’s evidence at trial established that this was a gang-related, drive-by

          shooting. Prior to the testimony of Francisco Ortiz, defendant’s trial counsel successfully

          prevented the State from introducing any testimony about defendant’s gang affiliation.

          Pursuant to the trial court’s ruling, Ortiz did not identify defendant as a member of any gang.

          While Ortiz testified that defendant had told him that members of the Latin Dragons had

          dented the passenger side of his vehicle, a dent—by itself, without any further evidence of


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          gang animus or affiliation—is not a particularly strong motive for premeditated murder. By

          blocking Ortiz from testifying about defendant’s gang membership, trial counsel undermined

          the State’s only evidence of motive and distanced defendant from a gang-related shooting.

¶ 58             Defendant’s pro se petition, sworn to under penalties of perjury and later verified,

          admitted that defendant had discussed with his trial counsel whether to call Avila as an alibi

          witness. According to defendant, counsel had explained his reasons for not calling her as

          follows: “ I didn’t think it was a good idea to present some young, Latina, female who would

          put you at a junta with some Latin Kings as an alibi defense. It would definitely get you

          convicted.” Defendant admits that he agreed, deciding to defer to counsel’s judgment.

          Defendant stated that “he thought trial counsel knew best.”

¶ 59             Thus, the record shows (1) that defendant and counsel discussed the proposed

          witness; (2) that they already knew what this witness could offer the defense; (3) that

          defendant agreed with his counsel’s decision not to call her; and (4) that there was a

          reasonable strategic reason to not call her, namely, to keep evidence of defendant’s gang

          affiliation from the jury when he stood accused of a gang-related shooting. See Peterson,

          2017 IL 120331, ¶ 80 (“a mistake in trial strategy *** will not alone render representation

          constitutionally defective”). For these reasons, we cannot find that trial counsel’s

          performance was “objectively unreasonable under prevailing professional norms” for not

          further investigating and not calling this proposed alibi witness. See Domagala, 2013 IL

          113688, ¶ 36. As a result, we are not persuaded by defendant’s claim of ineffective assistance

          of counsel. Peterson, 2017 IL 120331, ¶ 79 (“A failure by the defendant to satisfy either

          prong of the Strickland standard precludes a finding of ineffective assistance of counsel.”).




                                                       17 

       No. 1-16-0030


¶ 60                                              V. Sentencing

¶ 61                Defendant’s second claim is that his case should be remanded for resentencing

          because a de facto life sentence imposed against a juvenile offender, as the result of

          mandatory sentencing laws, violates the eighth amendment and the proportionate penalties

          clause.

¶ 62                In Miller v. Alabama, 567 U.S. 460, 479 (2012), the United States Supreme Court

          found that the eighth amendment to the United States Constitution “forbids a sentencing

          scheme that mandates life in prison without possibility of parole for juvenile offenders.”

          Following Miller, our supreme court has “emphasized that a mandatory sentencing scheme

          for juveniles prevents the trial court from considering numerous mitigating factors.” People

          v. Reyes, 2016 IL 119271, ¶ 3 (per curiam). As a result, our supreme court requires that a

          sentencing judge “ ‘must have the opportunity to consider mitigating circumstances before

          imposing the harshest possible penalty for juveniles.’ ” Reyes, 2016 IL 119271, ¶ 3 (quoting

          Miller, 567 U.S. at 489). A de facto life-without-parole sentence must “be based on judicial

          discretion rather than statutory mandates.” Reyes, 2016 IL 119271, ¶ 4.

¶ 63                In Reyes, as in the case at bar, the defendant “had not received an actual life sentence

          without possibility of parole.” Reyes, 2016 IL 119271, ¶ 5. Instead, “the various sentencing

          statutes to which he was subject had combined in such a way so as to eliminate all judicial

          discretion and impose on him a mandatory prison term.” Reyes, 2016 IL 119271, ¶ 5. As a

          result, our supreme court found that the sentence in Reyes constituted cruel and unusual

          punishment, vacated it, and remanded for resentencing, under the new sentencing law for

          juveniles. Reyes, 2016 IL 119271, ¶¶ 9, 11.




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       No. 1-16-0030


¶ 64               Our legislature has enacted a new sentencing law for juveniles, since defendant was

           sentenced in 2006, that requires a sentencing court to take into account certain mitigating

           factors and, most importantly for this case, frees the sentencing court from having to impose

           otherwise mandatory firearm enhancements. Reyes, 2016 IL 119271, ¶ 11; 730 ILCS 5/5-4.5­

           105 (West 2016). Those enhancements are now a matter of discretion for the sentencing

           court. Reyes, 2016 IL 119271, ¶ 11; 730 ILCS 5/5-4.5-105(b), (c) (West 2016).

¶ 65               In the instant case, defendant was 15 years old on April 1, 2000, the date of the

           offense. On June 9, 2005, defendant was sentenced in an unrelated case to 20 years for

           attempted first degree murder prior to the disposition of the first degree murder charge. On

           December 28, 2006, he was sentenced on the first degree murder charge to 45 years with

           IDOC. The 45-year sentence 3 was the mandatory minimum sentence he could have received,

           and it included a 25-year mandatory enhancement for personally discharging a firearm. See

           730 ILCS 5/5-8-1(a)(1)(a) (West 2006) (“for first degree murder” the minimum adult

           sentence “shall not be less than 20 years”); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006) (“if,

           during the commission of the offense, the person personally discharged a firearm that

           proximately caused *** death ***, 25 years or up to a term of natural life shall be added to

           the term of imprisonment imposed”). In other words, at that time, the trial court had no other

           alternative but to sentence defendant to 45 years to run concurrent with the 20-year sentence.

¶ 66               Then, in 2012, in Miller, 567 U.S. at 479, the United States Supreme Court found that

           the eighth amendment “forbids a sentencing scheme that mandates life in prison without

               3
                Even if we were to consider the 45-year sentence alone, we observe that the Illinois Supreme
       Court cited with approval the Wyoming case of Bear Cloud v. State, 2014 WY 113, ¶¶ 11, 33, 334 P.3d
       132 (Wyo. 2014), in which the Wyoming Supreme Court found that a 45-year sentence, with a release
       date at 61 years old, constituted a “lifetime” sentence. See Reyes, 2016 IL 119271, ¶ 9. Similarly, this
       court has previously held that a 50-year sentence imposed on a 16-year-old was a de facto life sentence.
       People v. Buffer, 2017 IL App (1st) 142931, ¶ 62, petition for leave to appeal allowed, No. 122327 (Nov.
       22, 2017). However, we do not base our holding on these cases.
                                                          19 

       No. 1-16-0030


           possibility of parole for juvenile offenders.” Then, in 2016, in Reyes, 2016 IL 119271, ¶ 4,

           our supreme court found that a de facto life sentence for a juvenile must “be based on judicial

           discretion rather than statutory mandates.” As a result of these landmark decisions, the

           sentence in this case became a de facto life imprisonment because defendant will be 80 years

           old when he is released because he must serve 100% of the 45-year sentence (see 730 ILCS

           5/3-6-3(a)(2)(i) (West 2016) (a prisoner serving a term for first degree murder “shall receive

           no sentence credit and shall serve the entire sentence imposed”)) and 85% of the 20-year

           sentence (see 730 ILCS 5/3-6-3(a)(2)(ii) (West 2016) (a prisoner serving a sentence for

           attempted murder “shall receive no more than 4.5 days of sentence credit for each month”

           served or no more than 54 days per year, which is 15%)). 4 In making this determination, we

           are including the 20-year sentence in our analysis even though we can find no other case that

           used two unrelated sentences in computing what the courts consider a de facto life sentence.

           We do this to keep with the intentions of the United States and Illinois Supreme Court

           decisions where the motivation is to somehow save the lives of our youth who commit

           violent crimes before reaching maturity with the hope that after they reach maturity they will

           mend the errors in their ways and become useful citizens in the future.

¶ 67               At the 2006 sentencing in this case, the trial court observed that defendant’s 45-year

           mandatory sentence in the case at bar had to run consecutively to his prior 20-year sentence.

           730 ILCS 5/5-8-4(a)(i) (West 2006). The result was de facto life imprisonment, with a

           release date when defendant will be over 75 years old. See 730 ILCS 5/3-6-3(a)(2)(i) (West

           2006) (an adult “prisoner who is serving a term of imprisonment for first degree murder ***

               4
                The 20-year sentence served at 85% is 17 years. Seventeen years, plus forty-five years for the
       murder sentence is sixty-two years. However, at sentencing, defendant received a credit for time served of
       just over four years. Sixty-two years minus four years meant that he had fifty-eight years more to serve at
       the time of sentencing. At the time of sentencing, defendant was 22 years old. Fifty-eight years more to
       serve for a twenty-two-year old means that he will not be released before age eighty.
                                                           20 

       No. 1-16-0030


          shall receive no good conduct credit and shall serve the entire sentence imposed by the

          court”); People v. Coty, 2018 IL App (1st) 162383, ¶ 79 (given that the juvenile defendant

          will not be released until he is at least 84 years old, “this sentence is equivalent to

          condemning the defendant to natural life imprisonment”); People v. Nieto, 2016 IL App (1st)

          121604, ¶ 42 (“Given that [the juvenile] defendant will not be released from prison until he is

          94 years old, we find that he effectively received a sentence of natural life without parole.”);

          People v. Gipson, 2015 IL App (1st) 122451, ¶ 66 (“in determining whether a particular term

          of years is a natural life sentence in disguise, we must consider whether the defendant may be

          released from prison in his lifetime”).

¶ 68             In general, appellate courts have found that a juvenile defendant is not subject to

          de facto life imprisonment, if he may be released sometime in his mid-60’s. See, e.g., People

          v. Evans, 2017 IL App (1st) 143562, ¶¶ 1, 14 (a juvenile defendant was not subject to

          de facto life imprisonment where release was possible at age 62); People v. Hoy, 2017 IL

          App (1st) 142596, ¶ 46 (juvenile sentence was constitutional, where release was possible at

          age 68); People v. Jackson, 2016 IL App (1st) 143025, ¶¶ 1-2, 8, 10 n.6 (affirming the denial

          for leave to file a successive postconviction petition, where the juvenile defendant’s possible

          release was at age 66, and this court had already reduced his sentence on appeal); People v.

          Applewhite, 2016 IL App (1st) 142330, ¶ 16 (finding that a juvenile defendant’s fully

          negotiated plea agreement and sentence were constitutional, where “he will be eligible for

          release at the age of 62”). C.f. State v. Null, 836 N.W.2d 41, 45 (Iowa 2013) (finding that a

          defendant was subject to de facto life imprisonment and vacating his sentence, where he




                                                        21 

       No. 1-16-0030


           would not be released before age 69 and 4 months). 5 But see People v. Sanders, 2016 IL App

           (1st) 121732-B, ¶ 26 (a life expectancy of 64 years old "probably overstates the average life

           expectancy for minors committed to prison for lengthy terms"). With a release age of over 75

           years old, defendant is far removed from any of these cases.

¶ 69                   Defendant’s de facto life sentence was the result of mandatory sentencing laws.

           At the moment of sentencing in this case, the trial court had no discretion but to enter a

           sentence that resulted in de facto life imprisonment of defendant. The State argues that the

           trial court could have entered a higher sentence. Since defendant was never going to see the

           light of day, entering a higher sentence would be pointless and does not demonstrate the

           exercise of any real discretion.

¶ 70                   Although defendant’s offenses were not part of a single course of conduct, as they

           were in Reyes, the effect was still the same in that mandatory laws robbed the sentencing

           court of any actual discretion. See Reyes, 2016 IL 119271, ¶ 10; see also Nieto, 2016 IL App

           (1st) 121604, ¶ 42. At the moment of sentencing, the court had no choice but to impose

           de facto life-without-parole incarceration.

¶ 71                   In the per curiam Reyes opinion, the State “concede[d]” that the United States

           Supreme Court case of Miller barred a mandatory sentence for a juvenile that amounted to

           life imprisonment “for offenses committed in a single course of conduct.” Reyes, 2016 IL

           119271, ¶ 8. The court stated, “We agree.” Reyes, 2016 IL 119271, ¶ 8. Although our

           supreme court agreed with the State’s concession, as far as it went, the court never stated that
               5
                However, there are outliers on either side. Compare Gipson, 2015 IL App (1st) 122451, ¶¶ 66,
       69 (finding that a juvenile defendant’s sentence shocks the conscience when, upon his potential release
       date, he “will be 60 years old”), and Buffer, 2017 IL app (1st) 142931, ¶ 62 (vacating a juvenile’s
       sentence where after serving his entire sentence, “he will be 66 years old”), with People v. Perez, 2018 IL
       App (1st) 153629, ¶ 38 (affirming a juvenile’s sentence where, “[a]fter serving his entire sentence, the 70­
       year-old defendant will be released”). However, even the outliers do not undermine our finding in this
       case.
                                                           22 

No. 1-16-0030


   its holding was limited to offenses committed in a single course of conduct. See Reyes, 2016

   IL 119271, ¶ 8. The court’s agreement was merely an acknowledgement that “[i]n this case,

   defendant committed offenses in a single course of conduct.” (Emphasis added.) Reyes, 2016

   IL 119271, ¶ 10. The Reyes court unequivocally stated its own holding—as opposed to the

   State’s concession—as,“we hold that sentencing a juvenile offender to a mandatory term of

   years that is the functional equivalent of life without the possibility of parole constitutes cruel

   and unusual punishment in violation of the eighth amendment.” Reyes, 2016 IL 119271, ¶ 9.

   This holding comports with the Miller holding that Miller is “implicate[d] [by] any life­

   without-parole sentence imposed on a juvenile.” (Emphasis added.) Miller, 567 U.S. at 473.

   Discussing its prior rulings, the Miller Court stated, “we insisted in these rulings that a

   sentencer have the ability to consider the ‘mitigating qualities of youth.’ ” Miller, 567 U.S. at

   476 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). The Miller Court then held: “We

   therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in

   prison without possibility of parole for juvenile offenders.” Miller, 567 U.S. at 479. That is

   what the sentencing court in this case was faced with—a sentencing scheme that mandated

   life in prison without possibility of parole for a juvenile offender. A sentencing court must be

   free to consider the age and maturity of the offender when he committed the crime, the total

   amount of time he will serve, and his age at release. Thus, we find unpersuasive the State’s

   argument that, in order for this court to find that Miller applies, the offenses must have been

   committed in a single course of conduct. Cf. Bear Cloud, 2014 WY 113, ¶ 37 (the Miller

   process “must be applied to the entire sentencing package”). We acknowledge that this is an

   issue that the United States Supreme Court has yet to resolve. Bear Cloud, 2014 WY 113,




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       No. 1-16-0030


          ¶ 29; see also Coty, 2018 IL App (1st) 162383, ¶ 80 (“our supreme court has not yet defined

          what constitutes a de facto life sentence”).

¶ 72             However, precedent from the Illinois Supreme Court does establish that a juvenile

          offender’s age at sentencing is not a factor in a Miller analysis. For example, it was in Reyes,

          2016 IL 119271, ¶ 9, that the Illinois Supreme Court found, based on its analysis of Miller

          and other cases, that “sentencing a juvenile offender for a mandatory term of years that is the

          functional equivalent of life without the possibility of parole constitutes cruel and unusual

          punishment.” Our supreme court vacated the defendant’s sentence and remanded so that a

          new sentencing hearing could be held. Reyes, 2016 IL 119271, ¶¶ 10, 14.

¶ 73             The defendant in Reyes was 16 years old on December 20, 2009, when the offenses

          were committed. Reyes, 2016 IL 119271, ¶ 1. However, he was not sentenced until March

          29, 2012, almost two-and-a-half years later. People v. Reyes, 2015 IL App (2d) 120471, ¶ 6,

          rev’d per curiam, 2016 IL 119271. Even if we assume that the Reyes defendant had just

          turned 16 when the offenses were committed and, thus, was the youngest possible 16-year­

          old, he had to be over 18 years old when he was sentenced two-and-a-half years later.

          However, his age of sentencing was of so little importance to our supreme court that it was

          not mentioned once in its opinion. See Reyes, 2016 IL 119271; see also Roper v. Simmons,

          543 U.S. 551, 555-56, 578 (2005) (finding that it was unconstitutional to execute a juvenile

          offender who was “younger than 18 when he committed a capital crime” although he had

          turned 18 before he was tried and sentenced nine months later).

¶ 74             Thus, the fact that a juvenile offender has become an adult prior to his sentencing

          does not bar the application of Miller and Roper and their progeny.




                                                         24 

       No. 1-16-0030


¶ 75             In addition, this court has previously written on the need “to expand juvenile

          sentencing provisions” to “young adult offenders.” People v. House, 2015 IL App (1st)

          110580, ¶ 96. In the case at bar, defendant was only 19 years old when he committed the

          offense that led to the 20-year sentence. In House, after analyzing Miller and Roper, we

          vacated a life sentence imposed on an offender who was also 19 years old at the time of the

          offense. House, 2015 IL App (1st) 110580, ¶ 102. This court wrote, “we find the designation

          that after age 18 an individual is a mature adult appears to be somewhat arbitrary.” House,

          2015 IL App (1st) 110580, ¶ 95. We then observed the lack of maturity in the developing

          young adult brain, and cited relevant supporting articles. House, 2015 IL App (1st) 110580,

          ¶¶ 95-96. Our statements in House further support our finding that the 20-year sentence is

          relevant to our consideration of Miller, Roper, and their progeny.

¶ 76             In Jackson, 2016 IL App (1st) 143025, this court had already reduced a juvenile

          defendant’s sentence from 60 years to 50 years on direct appeal. Jackson, 2016 IL App (1st)

          143025, ¶ 54. Thus, this court had already exercised discretion and carefully reviewed the

          defendant’s record and determined that 50 years was an appropriate sentence. After this

          reduction, the Jackson defendant filed a postconviction petition claiming that the 50-year

          sentence was a de facto life sentence and that any life sentence, even a discretionary one, was

          inappropriate for a juvenile offender. In Jackson, we observed that our supreme court had

          already found in People v. Davis, 2014 IL 115595, ¶ 43, “that Miller permits a juvenile

          sentence of natural life without parole so long as the sentence is discretionary.” Jackson,

          2016 IL App (1st) 143025, ¶ 58. As a result, we had no choice but to reject his claim.




                                                      25 

       No. 1-16-0030


¶ 77              In the case before us, the sentence that the juvenile offender received was mandatory

          and, therefore, very different from the sentence in Jackson which was the product of an

          exercise of discretion by this court.

¶ 78              We wrote in Jackson that if we were “going to hold that” every “de facto life

          sentence,” whether mandatory or discretionary, “qualifies for consideration under Miller,

          then we would need a consistent and uniform policy on what constitutes a de facto life

          sentence.” Jackson, 2016 IL App (1st) 143025, ¶ 57. We hoped that “a different forum,” i.e.,

          our supreme court, would hopefully provide that guidance shortly. Jackson, 2016 IL App

          (1st) 143025, ¶ 57. However, until that happens, the question is properly before us, and our

          supreme court may be waiting to hear what its appellate courts have to say first, in order to

          consider our collective wisdom before making its decision.

¶ 79              In conclusion, we vacate defendant’s sentence and remand for resentencing under the

          sentencing scheme found in section 5-4.5-105 of the Unified Code of Corrections (730 ILCS

          5/5-4.5-105 (West 2016)), as our supreme court did in Reyes. Reyes, 2016 IL 119271, ¶ 12.

          As our supreme court observed, under “this new sentencing scheme, the circuit court will

          have the discretion not to apply the firearm sentencing enhancements.” (Emphasis in

          original.) Reyes, 2016 IL 119271, ¶ 12. Thus, the trial court will have the discretion to

          impose, or to not impose, the enhancement. See People v. Holman, 2017 IL 120655, ¶ 40

          (“Life sentences, whether mandatory or discretionary, for juvenile defendants are

          disproportionate and violate the eighth amendment, unless the trial court considers youth and

          its attendant characteristics.”).

¶ 80              While we recognize that the relief following a second-stage dismissal under the Act

          ordinarily involves a remand for a third-stage evidentiary hearing, the issue before us is a


                                                       26 

       No. 1-16-0030


          purely legal question that does not require the typical resolution of credibility disputes and

          assessment of evidence that normally occurs at a third-stage evidentiary hearing. Buffer, 2017

          IL App (1st) 142931, ¶ 66 (declining to remand to the trial court after a first-stage dismissal,

          after this court found that resentencing was required for a juvenile offender facing de facto

          life imprisonment); Nieto, 2016 IL App (1st) 121604, ¶ 57 (declining to remand after a first-

          stage dismissal, after this court vacated a juvenile offender’s sentence). Remanding a purely

          legal question to the trial court would be a waste of judicial resources. Buffer, 2017 IL App

          (1st) 142931, ¶ 66 (declining to remand in light of “both judicial economy and the particular

          issue raised in this appeal”); Nieto, 2016 IL App (1st) 121604, ¶ 57 (declining to remand in

          light of “[t]he particular issue raised in this appeal”).

¶ 81                                             CONCLUSION

¶ 82              In this appeal, defendant appealed the second-stage dismissal of the following two

          claims: (1) that he had made a substantial showing of ineffective assistance of trial counsel

          because counsel had failed to investigate an alibi witness and failed to call her to testify that

          defendant was at a gang meeting with her at the time of the shooting and (2) that his case

          should be remanded for resentencing because a de facto life sentence imposed against a

          juvenile offender, as the result of mandatory sentencing laws, violates the eighth amendment

          and the proportionate penalties clause.

¶ 83              For the foregoing reasons, we did not find his first claim persuasive, but we vacate his

          sentence and remand for resentencing under the new sentencing scheme found in section 5­

          4.5-105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)).

¶ 84              Affirmed in part and vacated in part; cause remanded with directions.




                                                         27 

       No. 1-16-0030


¶ 85             PRESIDING JUSTICE McBRIDE, specially concurring:

¶ 86             I agree with the decision to remand for a new sentencing hearing in this case for the

          reasons stated above. I write separately in further support, and to note that the precise

          sentencing issue on appeal has not previously been addressed.

¶ 87             In recent years, courts have been required to impose mandatory minimum sentences

          upon offenders convicted of certain serious offenses. People v. Sharpe, 216 Ill. 2d 481, 525

          (2005). These mandatory minimums apply to both adult offenders, and juvenile offenders

          who are tried as adults. For example, a first degree murder conviction in which the defendant

          personally discharged a firearm that caused the death, results in a minimum sentence of 45

          years; 20 years for the murder and 25 years for a mandatory firearm enhancement (see 730

          ILCS 5/5–8–1(a)(1)(d)(iii) (West 2016)). Similarly, if a person commits an armed robbery he

          is sentenced as a Class X offender to a minimum of 6 years, and if he does so while armed

          with a firearm, the court is required to add a 15 year firearm enhancement to the sentence.

          720 ILCS 5/18-2(b) (West 2016); see also People v. Blair, 2013 IL 114122, ¶ 4. If he

          discharges that firearm during the commission of the offense, the enhancement goes up to 20

          years, and if the firearm discharge proximately causes great bodily harm, permanent

          disability, permanent disfigurement or death, the enhancement increases to 25 years. Id.

          Additionally, a habitual offender who has attained the age of 18 at the time of a third Class X

          felony conviction is required to be sentenced to life in prison (730 ILCS 5/5-4.5­

          95(a)(5)(West 2016)), and an offender under 21 years old who is convicted of a third Class 1

          or 2 felony is generally required to be sentenced as a Class X offender (730 ILCS 5/5-4.5­

          95(b)(West 2016)). Moreover, although some offenses still allow for day for day credit, other

          Illinois statutes require offenders to serve 100% of the sentence imposed for first degree


                                                       28 

       No. 1-16-0030


          murder convictions, or 85% of the sentence for attempted first degree murder, criminal

          sexual assault, aggravated battery and other delineated convictions. See People v. Harris,

          2016 IL App (1st) 141744, ¶ 49; 730 ILCS 5/3-6-3(a)(2)(i), (ii) (eff. Jan. 8, 2018). The effect

          of the above provisions is that persons convicted of crimes—adults and juveniles tried as

          adults—are spending more time in prison than those convicted of the same types of crimes in

          previous years.

¶ 88             Recently, however, the Illinois legislature has enacted several statutes impacting the

          ways juvenile offenders are prosecuted and sentenced for criminal offenses. Specifically, the

          legislature has extended jurisdiction of the Juvenile Court Act from under 17 years, to under

          18 years of age at time of an offender’s alleged offense, (Public Act 98–61, section 5 (eff.

          Jan. 1, 2014) (amending 705 ILCS 405/5–120 (2012)), changed the automatic transfer age for

          certain offenses from 15 to 16 years of age, and has removed armed robbery with a firearm

          and vehicular hijacking with a firearm from the list of offenses that are subject to an

          automatic transfer (Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a)

          (West 2014)). The legislature has also amended the Unified Code of Corrections, to add

          provisions requiring the trial court to consider additional mitigating factors (730 ILCS 5/5­

          4.5-105(a) (West 2016)), and allowing the trial court, in its discretion, to decline to impose

          firearms enhancements (730 ILCS 5/5-4.5-105(b) (West 2016)), when sentencing individuals

          under the age of 18 in criminal court.

¶ 89             Additionally, some states, including Illinois, are reconsidering their prior decisions to

          abolish the parole system (see People v. Artis, 232 Ill. 2d 156, 162-65 (2009) (noting that

          parole was abolished in Illinois for felons sentenced after February 1, 1978)) particularly for

          offenders who have committed their offenses as juveniles or as young adults. See also Ariz.


                                                       29 

        No. 1-16-0030


           Rev. Stat. Ann. § 13-716 (2016) (allowing a person sentenced to life imprisonment with the

           possibility of release for an offense committed before 18 years of age to be eligible for parole

           upon completion of the minimum sentence, and applying retroactively, regardless of when

           the offense was committed); Cal. Penal Code § 3051 (West 2016) (describing different

           timelines for parole eligibility for “youth offender[s]” based on the sentence imposed and

           whether they were under the age of 18, or 25, at the time of their offenses); La. Stat. Ann. §

           15:574.4 (2016) (describing different timelines for parole eligibility for juvenile offenders

           based on their convictions and sentences). Specifically, in Illinois, there is proposed

           legislation which would amend the Unified Code of Corrections so that, generally, a person

           under the age of 21 years at the time of the commission of an offense other than first degree

           murder, would be eligible for parole review after serving 10 years, and a person under the

           age of 21 years at the time of the commission of the offense of first degree murder would be

           eligible for parole review after serving 20 years. 100th Ill. Gen. Assem., Senate Bill 3228,

           2018 Sess. Id. The proposed legislation, however, provides for such review only for persons

           sentenced on or after the effective date of the amendatory Act.

¶ 90                  The changes, and proposed changes, in our statutes, reflect a shift in the way that we

           view juvenile offenders, and a recognition that juvenile offenders are children, and that they

           should be treated differently from adult offenders in the administration of our system of

           justice.

¶ 91	                 In Miller v. Alabama, 567 U.S. 460, 479 (2012), the U.S. Supreme Court held that the

           Eighth Amendment forbids a sentencing scheme that mandates life in prison without the

           possibility of parole for juvenile offenders. The decision is based upon the notion that

           mandatory life without parole for juvenile offenders amounts to cruel and unusual


                                                          30 

       No. 1-16-0030


          punishment because the brains of youthful offenders are not fully developed and juvenile

          offenders are both less culpable and more likely to reform as they age. Id., at 471-72, 489. As

          a consequence, sentencing courts must have the opportunity to consider youth and its

          attendant circumstances before imposing life in prison without parole upon a juvenile. Id., at

          465.

¶ 92             The cases where sentences of mandatory life without parole have been imposed upon

          a juvenile are easy to discern, and Illinois courts have responded and have remanded those

          cases for new sentencing hearings in accord with the Miller decision. Although Miller does

          not specifically speak to de facto life sentences, our courts have generally determined that the

          letter and spirit of Miller requires us to also allow relief to those who are serving lengthy

          mandatory minimum sentences that amount to de facto life sentences in prison without

          parole. Courts however have struggled with how to apply Miller in such cases, and how to

          determine what kind of sentence amounts to a de facto life sentence. As the majority decision

          points out, our appellate court is divided on what amounts to a de facto life sentence, and we

          await a decision from the Illinois Supreme Court, which has allowed a petition for leave to

          appeal in People v. Buffer which held a 50 year sentence imposed upon a juvenile convicted

          of murder was a de facto life sentence and entitled that juvenile to a new sentencing hearing

          under Miller. People v. Buffer, 2017 IL App (1st) 142931, ¶¶ 64, 69, appeal allowed, 93

          N.E.3d 1076 (Ill. 2017).

¶ 93             In this case, there is no dispute that defendant’s sentence of 45 years was the

          mandated minimum sentence which could be imposed for a murder he committed as a

          juvenile. Further, there is no dispute that when combined with the 20 year sentence defendant

          received for an offense he committed as an adult, his sentences for both crimes became a


                                                       31 

       No. 1-16-0030


          total combined sentence of 65 years, and defendant will remain incarcerated until he is

          approximately 80 years old. A 65 year sentence, imposed on a juvenile convicted as an adult,

          strictly in terms of years amounts to what some courts have found to be a de facto life

          sentence without parole. See infra cases cited in majority. Although part of the sentence—20

          years—was for a separate offense committed by the defendant when he was an adult, the two

          sentences together will likely guarantee that defendant will die in prison. See Buffer, 2017 IL

          App (1st) 142931, ¶ 59, appeal allowed, 93 N.E.3d 1076 (Ill. 2017) (noting that “ ‘a person

          held in a general prison population has a life expectancy of about 64 years’ and that this

          estimate ‘probably overstates the average life expectancy for minors committed to prison for

          lengthy terms.’ ”).

¶ 94             The United States Supreme Court in Miller also observed that due to children’s

          diminished culpability and heightened capacity for change, sentencing juveniles to life in

          prison “will be uncommon.” Miller, 567 U.S. at 479. This is especially so because of the

          great difficulty of distinguishing between the juvenile offender “ ‘whose crime reflects

          unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects

          irreparable corruption.’ ” Id. at 479-80, quoting Roper, 543 U.S. at 573. The Court explained

          however that it was “not foreclos[ing] a sentencer’s ability to make that judgment in

          homicide cases” but that before imposing such a sentence, the court was “require[d] *** to

          take into account how children are different, and how those differences counsel against

          irrevocably sentencing them to a lifetime in prison.” Id.

¶ 95             Although I agree with the dissent that no court has reached the decision we reach

          here, the number of years which defendant will have to serve because of Illinois’ mandatory

          sentencing provisions amounts to a de facto life sentence without parole, in large part


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          because of a murder defendant committed as a juvenile. However, the two mandatory

          sentencing schemes applicable here did not allow the trial court the opportunity to take into

          account how juvenile offenders are different, and to consider defendant’s youth and attendant

          circumstances when making its sentencing decision. Accordingly, it is my view that a

          remand is necessary for the sentencing court to determine if defendant is one of those rare

          juveniles whose crimes reflect “irreparable corruption,” when deciding whether to enter a

          sentence which amounts to life in prison. I note, however, that our decision in no way

          forecloses the trial court from imposing a de facto life sentence if it decides that this

          defendant and his convictions warrant such a sentence.

¶ 96               In this case, the trial court must also make its sentencing decision in light of the 20

          year prison term that was already imposed on defendant, for a conviction for attempted

          murder involving the use of a bat. A remand is even more important in this case because

          there is very little information about the facts or circumstances surrounding this other

          conviction in the record, making it difficult to review the entire circumstances presented by

          this appeal.

¶ 97               Unless we remand this and other similar cases for new sentencing hearings, we

          cannot be assured that these mandatory de facto life sentences were imposed upon those rare

          juvenile offenders “whose crime reflects irreparable corruption.” The trial court should have

          the opportunity to make that determination.

¶ 98               Accordingly, I concur for these and the reasons stated in the majority decision entered

          above.




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¶ 99              JUSTICE BURKE, dissenting:

¶ 100             The majority finds that defendant’s sentence for the murder he committed when he

           was a juvenile, combined with the sentence he received for a crime committed as an adult

           triggers the protections of the new juvenile sentencing guidelines prohibiting a de facto

           sentence of natural life. A consecutive sentence under both the Juvenile Court Act and the

           adult criminal sentencing statutes, as in this case, does not create a de facto life sentence

           subject to reversal under the protections given to juveniles pursuant to 735 ILCS 5/5-4.5-105

           (West 2016). There is no case that holds this, and there is no statute that supports the

           majority’s holding. Therefore, I respectfully dissent.

¶ 101             The defendant in this case committed a murder at the age of 15 in 2000. He was

           released on bond in June 2001. When he did not show up in court again, a warrant issued. He

           was arrested in February 2004 for another offense and charged with attempted murder,

           aggravated kidnapping, and aggravated battery. In February 2004, defendant was 19 years

           old. The adult charge of attempted murder was tried first and he was sentenced to 20 years’

           imprisonment. Because the crime was committed with a baseball bat and not a firearm, no

           firearm enhancement was applied to his sentence. This sentence was within the sentencing

           parameters of 6 to 30 years. 730 ILCS 5/5-4.5-25 (West 2004). Following his conviction and

           sentence on the adult charge, defendant was tried on the juvenile 2000 murder charge in adult

           court and found guilty. Because this offense was committed with a firearm, the trial court

           applied the mandatory 25-year firearm enhancement which resulted in the minimum sentence

           of 45 years. When defendant committed the 2004 attempted murder, he was on bond, which

           required his 20 year sentence to run consecutively to the murder sentence of 45 years.




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¶ 102             The 25-year firearm enhancement was not discretionary at the time of defendant’s

           2000 offense. When defendant was sentenced, a firearm enhancement was mandatory. 730

           ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002). The Illinois Supreme Court in People v. Hunter,

           2017 IL 121306, held that the trial court has discretion to apply the enhancement but that

           discretion does not apply to cases retroactively. Therefore, the sentence of 45 years was the

           minimum the trial court could allow.

¶ 103             A sentence of 45 years for a juvenile has repeatedly been found to not be a de facto

           life sentence. In People v. Jackson, 2016 IL App 143025, ¶¶ 54-58, Justice Gordon, as the

           authoring Justice, found that the 16-year-old defendant’s 50-year sentence was not a de facto

           life sentence. Similarly, in People v. Applewhite, 2016 IL App (1st) 142330, ¶ 16, this court

           found that the 17-year-old defendant’s 45-year sentence was not a de facto life sentence. See

           also People v. Evans, 2017 IL App (1st) 143562, ¶¶ 15-18 (finding that the defendant’s 90­

           year sentence was not a de facto life sentence, where defendant was 17 years old at the time

           of the offense and could receive day-for-day good conduct credit against his sentence, which

           could result in a sentence of only 45 years).

¶ 104             The only way for this court to find that defendant’s sentence in this case results in a

           de facto life sentence is if we combine the 45-year sentence for the juvenile offense with

           defendant’s 20-year sentence for the offense he committed as an adult. Defendant’s adult

           sentence of 20 years is required to run consecutively to the 45-year sentence (730 ILCS 5/5­

           8-4 (West 2006)) for a total term of imprisonment of 65 years.

¶ 105             The unique question posed by this appeal is: does this combination of a sentence for

           an offense committed as a juvenile and a sentence for an offense committed as an adult

           warrant remand for the trial court to consider all of the mitigation required under the new


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           juvenile sentencing provisions, and to allow the trial court discretion in determining whether

           to assess to additional firearm enhancement. I maintain that it does not.

¶ 106             Defendant’s 20-year sentence for attempted murder was based on an offense he

           committed when he was an adult and defendant was sentenced when he was an adult. This

           court and the supreme court have repeatedly refused to apply the new juvenile sentencing

           protections to young adults. See People v. Thomas, 2017 IL App (1st) 14255, ¶ 28

           (“[T]his court has held that where an adult defendant receives a sentence that approaches the

           span of the defendant’s lifetime, that term does not implicate the eight amendment right

           barring cruel and unusual punishment. Defendant cannot demonstrate otherwise

           under Miller, Roper, and Graham, which involve capital punishment or

           life sentences without parole for juvenile offenders.” (Emphasis added.)). The majority

           contends that this court’s decision in People v. House, 2015 IL App (1st) 110580, suggests

           that young adults should be afforded the same protections as juvenile offenders. This

           decision stands against the weight of the authority on this issue. See People v. Pittman, 2018

           IL App (1st) 152030, ¶ 38 (declining to follow the reasoning in House where defendant was

           not a juvenile at the time of the offense); People v. McKee, 2017 IL App (3d) 140881, ¶ 29

           (same); People v. Thomas, 2017 IL App (1st) 142557, ¶ 34 (same); People v. Ybarra, 2016

           IL App (1st) 142406, ¶¶ 27-30 (same).

¶ 107             The majority also places a great deal of emphasis on the fact that defendant’s

           sentence in this case was mandatory, and the court had no discretion in determining his

           sentence. This, however, was not the case. The court had discretion to sentence defendant

           within the sentencing range of 6 to 30 years for his conviction of attempted murder. 730




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           ILCS 5/5-4.5-25 (West 2004). There was no mandatory enhancement involved robbing the

           court of discretion and the ability to consider mitigating circumstances.

¶ 108             The majority also attempts to confuse the issue by asserting that the defendant in

           Reyes was not a juvenile at the time of sentencing, but the supreme court did not consider

           that a factor in vacating his sentence as unconstitutional. Instead, the supreme court focused

           solely on defendant’s age at the time of the offense. This argument undercuts, rather than

           supports, the majority’s conclusion. In the case at bar, defendant was 19 years old at the time

           of his attempted murder offense. The Supreme Court in Reyes did not indicate it would

           extend the protections of Miller to adult offenders. Thomas 2017 IL App 142557, ¶ 26. I

           agree with the majority that defendant’s age at the time of sentencing is irrelevant. If the

           court had sentenced defendant to a term of imprisonment of 65 years solely for his juvenile

           offense, I would concur with the majority’s holding. However, that is not what happened in

           this case, and the majority’s attempt to conflate defendants’ two sentences in order to find

           them unconstitutional is contrary to our well-established precedent.

¶ 109             Simply put, juvenile sentencing provisions do not apply once the defendant is 18.

           Although one of defendant’s sentences was for an offense he committed while he was a

           juvenile, the other sentence was not. As discussed, the juvenile sentence, standing alone, does

           not represent a de facto life sentence in violation of the eighth amendment, and the second

           sentence for an offense that occurred when defendant was an adult, cannot be arbitrarily

           added to that sentence in determining whether it is unconstitutional. This is true regardless of

           the fact that the sentences are to run consecutively. This is not a situation as in Reyes where

           the sentence is a result of a “single course of conduct” (Reyes, 2016 IL 119271, ¶ 10) where

           the offenses occurred years apart, and, crucially, one of them occurred when defendant was


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           no longer a juvenile. The majority’s decision to grant defendant juvenile protections for a

           crime committed as an adult where he was sentenced as an adult affords defendant

           protections that are not contemplated by the statute or by Illinois precedent.

¶ 110             For the reasons stated, it is my opinion that defendant cannot avail himself of the

           sentencing protection of the new juvenile sentencing provisions because he was not a

           juvenile when he committed the attempted murder offense, and I would affirm the trial

           court’s judgment.




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