Opinion
No. 1-18-0559
03-25-2021
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County
No. 12 CR 21251
Honorable Allen F. Murphy, Judge Presiding.
JUSTICE REYES delivered the judgment of the court.
Justice Martin concurred in the judgment.
Presiding Justice Gordon concurred in part and dissented in part.
ORDER
¶ 1 Held: Affirming the judgment of the circuit court of Cook County where (1) the evidence was not so closely balanced as to require reversal where the trial court failed to properly instruct the jury regarding Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (2) defense counsel did not render ineffective assistance of counsel, and (3) defendant forfeited his claim that his 50-year sentence was unconstitutional.
¶ 2 Following a jury trial, defendant Cecil Ross, who was 19 years old at the time of the
offense, was convicted of first degree murder and was specially found to have personally discharged a firearm in the commission of the offense. The trial court sentenced defendant to 30 years' imprisonment for murder plus a mandatory 20 years' imprisonment for firearm enhancement. On appeal, defendant argues that he is entitled to outright reversal or a new trial where the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Defendant also argues his counsel was ineffective and his sentence violates the eighth amendment of the Constitution and the proportionate penalties clause of the Illinois Constitution. For the reasons which follow, we affirm.
¶ 3 BACKGROUND
¶ 4 Defendant was charged by indictment in pertinent part with the first degree murder of Bryant Jones. The indictment alleged that on October 21, 2012, defendant personally discharged a firearm in the direction of Bryant and as a result defendant's actions caused Bryant's death. Defendant was 19 years old at the time of the offense. Timothy Brunson, a codefendant, was also charged with the first degree murder of Bryant.
¶ 5 The matter then proceeded to a joint bench trial where defendant and Timothy were represented by separate counsel. The State presented evidence that on October 21, 2012, Timothy drove defendant and Sebastian Bunville to Brandon Darty's apartment building and that defendant intended to fight Brandon. Brandon's relatives, Shaundre Pickett and Bryant Jones, confronted defendant, Timothy, and Sebastian in the parking lot and told them to leave. In response, defendant obtained a handgun from the backseat of the vehicle and shot Bryant. Charles Cramer testified that Timothy provided him with a box of ammunition after the shooting and Timothy told him that he had shot the victim in the shoulder and back. During the bench trial, a discussion was had amongst the attorneys and the trial court therein it was decided that
Timothy's admission to Charles would only be admissible and considered in Timothy's trial and not in defendant's trial. After hearing all the admissible evidence, including defendant's testimony, the trial court found defendant guilty of first degree murder.
¶ 6 Thereafter, defendant filed a motion to reconsider in which he requested the trial court reexamine the transcripts and its ruling. The trial court agreed to reexamine the transcripts in consideration of the motion and continued the matter to a later date. During this time, the State filed a disclosure with the court that Shaundre had been charged with a weapons offense during the pendency of defendant's case. The failure to disclose this fact during the first trial was not due to any error by the State. Defendant moved for a new trial based on this disclosure, which the court granted. The matter then proceeded to a second trial.
¶ 7 Pretrial
¶ 8 Defendant and Timothy requested to be tried by separate juries. Prior to trial, the State filed a motion in limine requesting defendant be precluded from introducing into evidence Timothy's statement to Charles. The trial court agreed with the State and excluded this evidence.
¶ 9 Trial
¶ 10 The evidence at trial established the following facts. On the evening of October 21, 2012, around 8:30 p.m. the victim, Bryant Jones, was with his cousins, Shaundre Pickett and Tyreece Evans, smoking marijuana on the back porch of the apartment building where he resided. While Bryant was outside, defendant, Timothy, and Sebastian entered the apartment occupied by Bryant's family member Brandon Darty, his girlfriend Carmen Gaskin, their one-month-old daughter, and Michelle Clay and her six-week-old daughter. Carmen had known defendant and Timothy since high school. Defendant had come to the apartment at
Michelle's request to take her baby to the hospital. Shaundre testified that Brandon then asked several times if he could smoke with them, but they declined his requests. Brandon then requested that Shaundre, Bryant, and Tyreece come with him into his apartment. They agreed and stood in the kitchen. Shaundre testified he observed defendant, Timothy, and Sebastian in the living room interacting with Michelle's baby. Defendant examined the baby and determined she did not need to go to the hospital. According to Carmen, defendant then called her baby ugly and so she asked defendant to leave. Defendant, Timothy, and Sebastian left the apartment building in Timothy's white Saturn Vue SUV.
¶ 11 A few minutes later Michelle received a telephone call from defendant. Carmen testified that she handed the phone to Brandon who became increasingly agitated. Brandon hung up the phone and informed Carmen that "they are going to kill me." Brandon then obtained a butcher's knife and went upstairs to his cousins Danyelle and Kiona Davis' apartment. Bryant, Shaundre, and Tyreece were already in Danyelle and Kiona's apartment. Shaundre, seeing Brandon with the butcher's knife, told Brandon to put it away and Brandon left. Shaundre, Bryant, and Tyreece then went outside. Upon exiting the apartment building they observed the white SUV parked in the parking lot with the passenger side of the SUV closest to the apartment building.
¶ 12 Shaundre testified that at the time he exited the building Carmen was already outside speaking with defendant and that defendant was dressed in red pajama pants and a black shirt. Shaundre clarified on cross-examination that defendant was not wearing a hooded sweatshirt. No one else testified as to what defendant was wearing at the time. While Carmen testified she was standing on the grass speaking with defendant, Shaundre testified that Carmen was on the grass and defendant was standing on the driver's side of the SUV near the rear passenger door. Shaundre and Carmen, however, both agreed and testified that Sebastian was seated on the hood
of the SUV and Timothy was standing by the driver's side door at this time. Both Shaundre and Carmen also testified that Bryant began walking toward the front of the white SUV and, according to Shaundre, was telling defendant, Timothy, and Sebastian that Brandon was not interested in fighting and that they should go home.
¶ 13 Carmen testified she was speaking in a calm manner with defendant and was asking him to leave. Shaundre, however, testified that Carmen was loud and pleading with defendant to leave because Brandon was her baby's father. Defendant then said to Carmen, "you were the one who told me to come here." At this point, Danyelle and Kiona had come outside and overheard defendant make this statement. They approached Carmen and asked her why defendant said that. According to Shaundre, Carmen turned around to go back into the house and was followed by Kiona and Danyelle. Carmen, however, testified she did not turn around and retreat into the apartment until after she observed defendant reach into the driver's side passenger window and come out holding a handgun which he then fired at Bryant. Shaundre also testified he observed defendant reach into the driver's side passenger door and come out with a handgun. Shaundre watched as defendant raised the weapon, pointed it at Bryant, and shot it multiple times. According to Shaundre, Bryant was hit with a bullet and spun around. At that point, Shaundre turned and ran into the building behind his family members.
¶ 14 No one observed defendant, Timothy, and Sebastian leave the scene and, at first, some of the family members were unable to find Bryant. He was shortly thereafter found face down in the grass across the street. He was pronounced dead at the scene. An autopsy revealed that Bryant was shot in the shoulder. The bullet then exited his shoulder and entered his chest cavity where it damaged his lungs and heart, ultimately exiting out his back.
¶ 15 Crime scene investigators found defendant's driver's license in the parking lot near four
fired 9-mm cartridge casings and one fired bullet. Defendant was arrested at 5 a.m. the following morning. He was wearing red pajama pants and a black t-shirt at the time. Shaundre and Carmen identified defendant in separate lineups as the individual who shot Bryant. Kiona identified defendant as an individual who was at the scene. The following day, October 23, 2012, defendant made a videotaped statement to detectives that he was involved in the shooting but did not fire the weapon. Instead, defendant asserted that the weapon belonged to Timothy and that Timothy fired the weapon. Defendant also indicated he was unaware that Bryant had died until he was so informed by detectives. The videotaped statement was admitted into evidence and published to the jury.
¶ 16 Charles Cramer testified that on October 22, 2012, at 1:30 p.m. Timothy called him, and he sounded upset. After speaking with Timothy, Charles drove with Sebastian to meet Timothy. Timothy handed Charles a box wrapped in a plastic bag. According to Charles, Timothy seemed relieved and grateful for his assistance. Charles placed the bag in the trunk of his vehicle. Later that day, after receiving a phone call from his friend, Kevin Petit, Charles drove to Kevin's residence with the bag still in the trunk. Once he arrived at Kevin's, he watched as Kevin went to the back yard, jumped the fence, and came back with another plastic bag. They both sat down at Kevin's kitchen table, put gloves on, and opened the bags. According to Charles, it was at this time he realized that they were handling a handgun and ammunition. Charles was surprised by what the bags contained.
¶ 17 The next day, Charles and Kevin contacted the Blue Island Police Department and informed a police officer that they wanted to turn in a handgun. They met with Blue Island police officers in a parking lot and turned over the weapon—a 9-mm Taurus semiautomatic handgun—and 9-mm ammunition. A firearm expert testified at the trial that the weapon turned
over by Charles was the weapon that was used in the shooting.
¶ 18 Additional physical evidence was presented at the trial including a black hooded sweatshirt recovered from defendant's 1997 gold Ford Escort. A gunshot residue test was performed on both of the cuffs of the black hooded sweatshirt and gunshot residue was discovered on the left cuff. A mixture of DNA from at least three different individuals from which defendant could not be excluded was discovered on the black hooded sweatshirt. Such a match would occur in one in 19 quintillion African American persons, one in 7.2 sextillion Southwest Hispanics, or one in 160 sextillion white unrelated individuals. Timothy, Sebastian, Charles, and Kevin were excluded from being a match to the DNA discovered on the black hooded sweatshirt. Defendant himself was subject to a gunshot residue test at 5 a.m. on October 22, 2012, which came back inconclusive. Timothy's white Saturn Vue SUV was also recovered and the items within the vehicle were inventoried. A black jacket was discovered in the cargo area of the vehicle and tested negative for gunshot residue. A DNA test was performed on the black jacket and it contained a mixture of at least two DNA profiles, one being defendant's. Such a match to defendant's DNA profile would occur in one in 150 quintillion African American persons, one in 49 sextillion Southwest Hispanics, or one in 1.4 sextillion white unrelated individuals. Timothy, Sebastian, Charles, and Kevin were excluded from being a match to this DNA.
¶ 19 The State rested and defendant moved for a directed verdict, which was denied. The defense did not present any evidence.
¶ 20 After hearing closing argument and jury instructions, the jury commenced deliberations at 11:55 a.m. At 1:30 p.m., the jury sent the court a note requesting to review defendant's videotaped statement. The trial court allowed the jury to watch defendant's 54-minute statement
in the courtroom. The jury then retired to the jury room at 2:54 p.m. and returned a verdict at 3:07 p.m. The jury found defendant guilty of first degree murder and that he personally discharged a firearm in the commission of the offense. Defense counsel filed a motion for a new trial, which was denied.
¶ 21 At the sentencing hearing, the trial court heard evidence in aggravation and mitigation. The State presented victim impact statements from three of the victim's relatives and stressed the seriousness of the crime as well as the fact that an appropriate sentence was necessary to deter similar conduct. In mitigation, the defense stressed defendant's lack of criminal history, his strong family ties, the fact he graduated high school and was viewed as a positive role model for his peers and presented six statements in support.
¶ 22 After considering all the factors in aggravation and mitigation, as well as reviewing the presentence investigation report, the trial court sentenced defendant to 30 years' imprisonment for first degree murder with a mandatory 20-year firearm enhancement, for a total sentence of 50 years' imprisonment. In rendering this sentence, the trial court observed that defendant had no criminal background, came from a good family, had "wonderful resources throughout his life," and graduated high school. The trial court even remarked, "Frankly, you don't see that very often in this courtroom when I get a presentence investigation." The court further observed that defendant initially went to the apartment building to help a sick child, but that his conduct thereafter led to the victim's death.
¶ 23 Defendant filed a motion to reconsider sentence, which was denied. This appeal followed.
¶ 24 ANALYSIS
¶ 25 On appeal defendant argues that he is entitled to outright reversal or a new trial where the
trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Defendant also argues his counsel was ineffective and his sentence violates the eighth amendment of the Constitution and the proportionate penalties clause of the Illinois Constitution. We address each argument in turn.
¶ 26 Rule 431(b)
¶ 27 Defendant first contends that the trial court committed reversible error where it failed to comply with Rule 431(b) and the evidence presented at trial was closely balanced. Specifically, defendant maintains that the trial court failed to mention the fourth principle posed by Rule 431(b), that a defendant's decision not to testify cannot be held against him. In addition, defendant observes that the trial court failed to inquire of three of the jurors who ultimately served on the jury whether they understood the third principle. Defendant acknowledges that he did not raise this issue before the trial court, but requests that we review it for plain error.
¶ 28 The State agrees that the trial court did not comply with Rule 431(b) but argues that this did not constitute reversible error where the evidence presented at trial was not closely balanced. For the reasons which follow, we agree with the State.
¶ 29 The plain-error doctrine permits a reviewing court to address a forfeited claim where a "clear or obvious error occurred" and either (1) "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error," or (2) the "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." (Internal quotation marks omitted.) People v. Hood, 2016 IL 118581, ¶ 18. The defendant bears the burden of persuasion in establishing plain error. People v. Wilmington, 2013 IL 112938, ¶ 43. We first consider whether an error occurred. People v. Eppinger, 2013 IL 114121, ¶ 19.
¶ 30 Rule 431(b) requires the trial court to "ask each potential juror, individually or in a group, whether that juror understands and accepts" four principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her. Ill. S. Ct. R. 431(b) (eff. July 1, 2012); see also People v. Zehr, 103 Ill. 2d 472, 477-78 (1984).
¶ 31 Rule 431(b) allows the court to question the prospective jurors either individually or in a group, provided the court affords "an opportunity for a response from each prospective juror on their understanding and acceptance of those principles." People v. Thompson, 238 Ill. 2d 598, 607 (2010). Asking potential jurors whether they have a "problem with" or "disagree with" the principles, rather than whether they understand and accept them, is clear error. People v. Sebby, 2017 IL 119445, ¶ 49; People v. Wilmington, 2013 IL 112938, ¶ 32. And failing to ask even one juror whether he or she understands and accepts even one of the four principles is clear error. People v. Montgomery, 2018 IL App (2d) 160541, ¶ 26. We review the trial court's compliance with Rule 431(b) de novo. People v. Belknap, 2014 IL 117094, ¶ 41.
¶ 32 We begin by acknowledging that defendant's assessment of the trial record is accurate—the trial court did not advise the jurors of the fourth principle. In addition, three of the jurors who ultimately served were not asked if they understood the third principle during individual questioning. Defendant argues that the failure of the trial court to so advise the jurors was prejudicial in this case where the evidence was closely balanced and hinged on the jury's understanding and acceptance of the principle that he was not required to present any evidence and his failure to do so cannot be held against him.
¶ 33 A case is closely balanced when "it can hardly be said that reasonable jurors could only draw from [the evidence] a conclusion of guilt." People v. Nelson, 193 Ill. 2d 216, 223 (2000). When the evidence is close, in this sense, a Rule 431(b) error is "potentially dispositive" and therefore prejudicial. Sebby, 2017 IL 119445, ¶ 68. To determine whether a case was closely balanced, we undertake "a qualitative, commonsense assessment" of the evidence as a whole, including any evidence that bears on the credibility of the witnesses. Id. ¶ 53. Defendant bears the burden of persuasion. People v. Fort, 2017 IL 118966, ¶ 18 (quoting People v. Herron, 215 Ill. 2d 167, 187 (2005)). But he does not need to demonstrate how the error may have contributed to the verdict; his burden is simply to demonstrate that the evidence was close. Sebby, 2017 IL 119445, ¶ 51.
¶ 34 Defendant here contends the evidence against him was closely balanced where the eyewitnesses' testimony was inconsistent with one another's testimony and with their prior testimony. Defendant further argues that the physical evidence was largely equivocal and notes that while gunshot residue was discovered on the left cuff of the black hooded sweatshirt, no evidence was presented that defendant was wearing a black hooded sweatshirt during the shooting. Defendant further notes that the expert testimony at trial established that gunshot residue can be deposited on a surface if it is nearby where a handgun is fired. According to defendant, this theory is consistent with defendant's statement to police that he did not fire the weapon but that he was standing next to Timothy when Timothy fired the handgun.
¶ 35 In Sebby, the defendant was charged with felony resisting a peace officer. Id. ¶ 1. That charge required the State to prove in part that the defendant knowingly resisted a peace officer and that his resistance was the proximate cause of an injury to that officer. 720 ILCS 5/31-1(a-7) (West 2010). On the resistance element, the three responding officers testified that the defendant
resisted. Sebby, 2017 IL 119445, ¶¶ 55-56. Three other witnesses, including the defendant, testified that the defendant did not resist but was instead being yanked around by the officers. Id. ¶¶ 57-58.
¶ 36 The Sebby court concluded that the evidence was closely balanced. Id. ¶ 61. The court observed that the State's witnesses provided accounts that were consistent with each other, as did the defendant's witnesses. Id. Neither party's version of the events was fanciful. Id. The court rejected the State's argument that the testimony of the defendant's witnesses was less plausible because those witnesses were relatives or friends of the defendant and might be biased. Id. ¶ 62. The court also noted that neither party's version of the events was corroborated by extrinsic evidence. Id. The court found that, as in People v. Naylor, 229 Ill. 2d 584 (2008), the outcome of the trial depended on a " 'contest of credibility' " between the officers and the defendant. Sebby, 2017 IL 119445, ¶ 63 (quoting Naylor, 229 Ill. 2d at 606-07). The court explained that, because the outcome depended on a choice between two versions which were both credible, the evidence was closely balanced. Id. (citing Naylor, 229 Ill. 2d at 608). In contrast, evidence has been deemed to be not closely balanced when one witness's version of events was either implausible or corroborated by other witnesses. See, e.g., People v. Daniel, 2018 IL App (2d) 160018, ¶ 30.
¶ 37 We find the evidence in this case was not closely balanced. A person commits first degree murder when he kills another without lawful justification and either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another. 720 ILCS 5/9-1(a)(1) (West 2012). The direct and circumstantial evidence in this case established the elements of the offense of first degree murder. Specifically, defendant obtained a deadly weapon, aimed it at the victim, and then fired the weapon multiple
times. See People v. Carlisle, 2015 IL App (1st) 131144, ¶ 59 (defendant's intent to kill may be inferred from surrounding circumstances, such as the character of the attack, the use of a deadly weapon, or the nature and extent of the victim's injuries). Defendant attempts to discredit Shaundre and Carmen's eyewitness testimony by pointing out various inconsistencies therein. These inconsistencies, however, do not render the evidence closely balanced and the record demonstrates that these weaknesses were argued to the jury. As the jury had the best opportunity to judge the credibility of the witnesses, we are not in a position to override the jury's decision to accept testimony that was not inherently unbelievable. See People v. Cunningham, 212 Ill. 2d 274, 283 (2004) (the fact finder judges how flaws in part of a witness' testimony affects the credibility of the whole). While Shaundre and Carmen's testimonies differed as to where defendant was standing and how he reached into the SUV, their testimonies were consistent when it came to the elements required to prove first degree murder. Shaundre and Carmen both testified that defendant reached into the rear driver's side of the SUV and came out with a handgun. They also both observed defendant raise his weapon in Bryant's direction and fire the weapon multiple times. The physical evidence recovered corroborates the eyewitness testimony as four cartridge casings were recovered at the scene along with a fired bullet and defendant's driver's license. While no one testified that defendant was wearing a hooded sweatshirt at the time of the shooting, gunshot residue was discovered on the left cuff of a sweatshirt containing defendant's DNA which was found in defendant's vehicle. The evidence also established that defendant is left handed. In our review, this evidence is not closely balanced. See People v. Anderson, 2012 IL App (1st) 103288, ¶ 51. Because defendant has failed to meet his burden of demonstrating plain error, reversal is not warranted on the sole basis that the trial court erred in admonishing the prospective jurors under Rule 431(b).
¶ 38 Ineffective Assistance of Counsel
¶ 39 Defendant next contends that his counsel was ineffective for failing to introduce evidence that Timothy admitted to the shooting in this case, thus depriving him of compelling evidence that supported his theory of defense. Defendant further maintains that counsel failed to impeach the State's witnesses with numerous pieces of inconsistent or contradictory testimony from defendant's first trial. Defendant concludes that, while counsel had a clear trial strategy in mind (to argue that Timothy was the shooter), counsel failed to utilize the available evidence to support that strategy. Accordingly, defendant requests this court reverse his conviction and remand for a new trial.
¶ 40 The Illinois Supreme Court has held that, to determine whether a defendant was denied his or her right to effective assistance of counsel, an appellate court must apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007). Under Strickland, a defendant must prove both (1) his attorney's actions constituted errors so serious as to fall below an objective standard of reasonableness, and (2) absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. Id.; Strickland, 466 U.S. at 687.
¶ 41 Under the first prong of the Strickland test, the defendant must prove that his counsel's performance fell below an objective standard of reasonableness "under prevailing professional norms." Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004). In considering whether counsel's performance was deficient, a court must indulge a strong presumption that the challenged action, or inaction, was the result of sound trial strategy. People v. Smith, 195 Ill. 2d 179, 188 (2000); People v. Evans, 186 Ill. 2d 83, 93 (1999).
¶ 42 Under the second prong, the defendant must establish that, "but for" counsel's deficient
performance, there is a reasonable probability that the result of the proceeding would have been different. (Internal quotation marks omitted.) Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. "[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." Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney's performance. People v. Lacy, 407 Ill. App. 3d 442, 457 (2011).
¶ 43 To prevail, the defendant must satisfy both prongs of the Strickland test. Colon, 225 Ill. 2d at 135. In this case, we find that defendant fails to meet the prejudice prong. Our supreme court has held that the prejudice prong for ineffective assistance of counsel is similar to the closely balanced evidence prong of plain-error review. People v. White, 2011 IL 109689, ¶ 134. This is because "[b]oth analyses are evidence-dependent and result-oriented." Id. Therefore, "where a defendant fails to show prejudice, a defendant's allegations of ineffective assistance of counsel and plain error under the closely-balanced-evidence prong both fail." People v. Hensley, 2014 IL App (1st) 120802, ¶ 47 (citing White, 2011 IL 109689, ¶ 134). Here, because we have found that the evidence was not closely balanced defendant cannot establish prejudice and cannot succeed on his claim of ineffective assistance of counsel. See People v. Holt, 2019 IL App (3d) 160504-B, ¶ 47.
¶ 44 Sentence
¶ 45 Lastly, defendant argues that his 50-year sentence violates both the eighth amendment and the proportionate penalties clause of the Illinois Constitution as applied where he was an "emerging adult" at only 19 years old at the time he committed the offense and the trial court failed to consider his youth and its attendant characteristics in accordance with Miller v.
Alabama, 567 U.S. 460 (2012), in determining his sentence. Accordingly, defendant requests we remand this case to the circuit court for a new sentencing hearing and the imposition of a sentence of 40 years or less.
¶ 46 Eighth Amendment
¶ 47 It is now established in our case law that the categorical findings made by Miller and its progeny under the eighth amendment apply only to juveniles. People v. Harris, 2018 IL 121932, ¶¶ 49-61 (rejecting a facial challenge under the federal eighth amendment to a life sentence for an offender over 18 years old but under 21 years old and conclusively noting, "the age of 18 marks the present line between juveniles and adults"); see People v. Carrion, 2020 IL App (1st) 171001, ¶ 28; People v. Minniefield, 2020 IL App (1st) 170541, ¶ 37; People v. Handy, 2019 IL App (1st) 170213, ¶ 37. Since defendant was 19 years old at the time of this offense, he cannot avail himself of the eighth amendment.
¶ 48 Proportionate Penalties Clause
¶ 49 Defendant further maintains that his sentence violates the proportionate penalties clause of the Illinois Constitution, which provides that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art 1, § 11. A sentence violates the proportionate penalties clause if "the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community." People v. Miller, 202 Ill. 2d 328, 338 (2002). Defendant now seeks to extend the reasoning of Miller to young adults age 19 under our state proportionate penalties clause.
¶ 50 In support of his argument, defendant relies on People v. House, 2019 IL App (1st) 110580-B. In House, the defendant, who had just turned 19 years old at the time of the offense,
was convicted of two counts of first degree murder and aggravated kidnapping where the evidenced established that he, while armed with a firearm, acted only as a lookout and had no criminal background. Id. ¶¶ 33-34. The 19-year-old House defendant received two consecutive, mandatory life sentences for murder under an accountability theory to run consecutively to two terms of 30 years for aggravated kidnapping. Id. ¶ 4. These mandatory life sentences were required by statute. Id. ¶ 46. In contrast, defendant here, was not found guilty under an accountability theory; he was found to be the actual shooter. In addition, defendant was not sentenced to a mandatory life sentence, but to a discretionary one.
¶ 51 In addition, unlike the defendant in House, defendant here failed to raise his constitutional claim before the trial court, depriving it of the opportunity to hold an evidentiary hearing and forfeiting our review on appeal. To make a successful as-applied constitutional claim, a defendant must establish that a constitutional violation arose from an application of the statutory sentencing scheme to a specific set of facts or circumstances. People ex rel. Hatrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 12. "Therefore, it is paramount that the record be sufficiently developed in terms of those facts and circumstances for purposes of appellate review." People v. Thompson, 2015 IL 118151, ¶ 37. Reviewing courts cannot find an as-applied constitutional violation without an evidentiary hearing and findings of fact, and our courts have found such requests by defendants on appeal to be premature. People v. Mosley, 2015 IL 115872, ¶ 47 (quoting In re Parentage of John M., 212 Ill. 2d 253, 268 (2004)).
¶ 52 In this regard, we find People v. Harris, 2018 IL 121932, to be dispositive. Similar to the case at bar, the Harris defendant was over the age of 18 when he committed the offense, and he argued that the court should extend Miller to his specific circumstances. Id. ¶ 37. The defendant conceded that he raised his Miller claim for the first time on appeal but argued that under People
v. Holman, 2012 IL 120655, the court should consider his claim because the record contained enough information about his personal history to allow the court to decide whether the evolving science on juvenile maturity and brain development relied upon in Miller applied to the defendant. Harris, 2018 IL 121932, ¶ 42. After distinguishing the defendant's claim from the claim made in Holman, the Harris court declined to consider the defendant's proportionate penalties clause challenge where the record was not sufficiently developed to determine whether Miller's characteristics attendant with youth applied specifically to defendant; therefore, it forfeited the defendant's as-applied constitutional claims when he failed to raise them before the trial court. Id. ¶ 46.
¶ 53 Our supreme court reached a similar conclusion in People v. Thompson, 2015 IL 118151, ¶ 38. There, the defendant was 19 years old when he committed the offense, and he argued that the science that Miller applied to those who were under 18 years old when they committed their crimes also should be applied to those who were 18 to 21 years old when they committed their crimes. Id. The court found that the record did not contain any facts explaining why that science should be extended to those over 18 years old or why that science applied to the circumstances of defendant's case. Id. The court then reasoned that the trial court was the most appropriate court to develop the facts needed to address defendant's as-applied claim. Id.
¶ 54 As in Harris and Thompson, defendant here maintains that the record is sufficient where it establishes his lack of a criminal background, family support, and his education. These factors, however, concern only basic information about defendant and do not address how evolving brain science and other Miller factors apply to this specific defendant. To reiterate the words of our supreme court, "it is paramount that the record be sufficiently developed in terms of those facts and circumstances for purposes of appellate review." Harris, 2018 IL 121932, ¶ 39.
Accordingly, as the record here does not contain sufficient facts to explain why the science relied upon in Miller would apply to defendant's circumstances, we conclude that this issue is forfeited. See id. ¶ 46; Thompson, 2015 IL 118151, ¶ 38.
¶ 55 CONCLUSION
¶ 56 For the reasons stated above, the judgment of the circuit court of Cook County is affirmed.
¶ 57 Affirmed.
¶ 58 PRESIDING JUSTICE GORDON, concurring in part and dissenting in part:
¶ 59 I concur with the portion of the majority's order that affirms defendant's conviction. I agree with the majority's finding that the evidence was not closely balanced where two eyewitnesses, who observed defendant prior to the shooting, both identified him at trial as the shooter, and where defendant admitted to police that he was on the scene but asserted that a friend was the actual shooter, and where a positive gunshot residue test on a sweatshirt found inside defendant's vehicle provided some additional corroboration for the eyewitnesses' testimony. However, I would order a new sentencing hearing for defendant, who was 19 years old at the time of the offense. Thus, I must respectfully dissent from that portion of the majority's order which denies him a new sentencing hearing.
¶ 60 Background
¶ 61 Before discussing the law, I want to highlight certain facts that were not discussed in the majority's order.
¶ 62 At sentencing, the State conceded that this offense was "a high school thing" and "a high school drama." Despite that concession, defense counsel argued at sentencing that his client was "25 years old." There is no indication that the sentencing court took into consideration the fact
that defendant was a teenager at the time of the offense, because the court made no mention of defendant's age at the time of the offense. The court expressed bewilderment as to "how that night deteriorated" so fast, calling it "remarkable." The only explanation that the court could offer was that "bad things happen so quickly when there is a gun involved." That the rapid mood swing was also because teenagers were involved was an explanation that the trial court did not consider. On February 27, 2018, the 19-year old defendant moved to reconsider his 50-year sentence, claiming that it was excessive. The trial court denied the motion on March 13, 2018.
¶ 63 Defendant's Sentencing Claim
¶ 64 Defendant, age 19, was convicted after a jury trial of first degree murder and sentenced on February 26, 2018, to 50 years, to be served at 100% in the Illinois Department of Corrections (IDOC). Defendant claims that his sentence is a de facto life sentence under People v. Buffer, 2019 IL 122327, and that, as applied to him, it violates the proportionate penalties clause of the Illinois Constitution, pursuant to numerous post-Buffer appellate court cases, such as People v. Franklin, 2020 IL App (1st) 171628, ¶¶ 1-3 (18-year-old defendant permitted leave to file a successive petition alleging a proportionate penalties claim); People v. Carrasquillo, 2020 IL App (1st) 180534, ¶¶ 4-5; People v. Ruiz, 2020 IL App (1st) 163145, ¶ 1; People v. Daniels, 2020 IL App (1st) 171738, ¶¶ 1-2. People v. Minniefield, 2020 IL App (1st) 170541, ¶¶ 1-3 (19-year-old); People v. Johnson, 2020 IL App (1st) 171362, ¶¶ 1-2 (19-year-old); People v. Ross, 2020 IL App (1st) 171202, ¶¶ 1-3 (19-year-old); People v. Savage, 2020 IL App (1st) 173135, ¶¶ 1-4 (22-year-old permitted second-stage proceedings regarding his proportionate penalties claim).
¶ 65 The State's argument that defendant forfeited this claim by not raising it earlier is not persuasive. Buffer itself was not decided until 2019 and the list of citations above demonstrates
that most of the cases interpreting it were decided in 2020—years after this defendant was sentenced. Defendant could not have raised a Buffer claim when Buffer and its progeny had not even been decided yet. E.g., Ross, 2020 IL App (1st) 171202, ¶ 21.
¶ 66 The State also argues that defendant cannot show prejudice because his sentence was discretionary. However, this court has found numerous times that the above-cited proportionate-penalties cases apply to discretionary sentences. See Franklin, 2020 IL App (1st) 171628, ¶ 38 (discretionary sentence); Carrasquillo, 2020 IL App (1st) 180534, ¶¶ 1, 22; Ruiz, 2020 IL App (1st) 163145, ¶ 18; Minniefield, 2020 IL App (1st) 170541, ¶¶ 12, 17; Johnson, 2020 IL App (1st) 171362, ¶¶ 16, 18; Savage, 2020 IL App (1st) 173135, ¶ 35; Ross, 2020 IL App (1st) 171202, ¶ 3. See also Daniels, 2020 IL App (1st) 171738, ¶¶ 2, 6 (18-year- old permitted leave to file a successive petition even though he received an agreed life sentence pursuant to a guilty plea).
¶ 67 Eighth Amendment
¶ 68 Although this defendant was still a teenager at the age of 19 when this offense occurred, it is well established that offenders who are over 18-years-old cannot raise a facial challenge to their sentences under the eighth amendment and the Miller line of cases. People v. Harris, 2018 IL 121932, ¶¶ 59-61.
¶ 69 Where a defendant raises an as-applied challenge rather than a facial challenge, Illinois courts typically consider the sentencing claims of young adults under the proportionate penalties clause rather than the eighth amendment. E.g., Minniefield, 2020 IL App (1st) 170541, ¶¶ 37-38 (considering a 19-year-old defendant's as-applied sentencing claim under the proportionate penalties clause rather than the eighth amendment). This is because federal cases have generally drawn a line at 18 years of age (e.g., Minniefield, 2020 IL App (1st) 170541, ¶ 37) and because,
as we explain below, the proportionate penalties clause offers a broader path to the same types of relief.
¶ 70 Proportionate Penalties Clause
¶ 71 Defendant alleges that his sentence is unconstitutional under the proportionate penalties clause of the Illinois Constitution because it ignores his rehabilitative potential.
¶ 72 Similar to the eighth amendment, the proportionate penalties clause of the Illinois Constitution embodies our evolving standard of decency. See People v. Miller, 202 Ill. 2d 328, 339 (2002) ("as our society evolves, so too do our concepts of elemental decency and fairness which shape the 'moral sense' of the community" underlying both the proportionate penalties clause and the eighth amendment). The proportionate penalties clause provides that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. This constitutional provision requires the balancing of the twin goals of retribution and rehabilitation, which requires a careful consideration of all the factors in aggravation and mitigation, including defendant's age, mental health and growth potential. See People v. Quitana, 332 Ill. App. 3d 96, 109 (2002).
¶ 73 "The purpose of the proportionate penalties clause is to add a limitation on penalties beyond those provided by the eighth amendment and to add the objective of restoring the offender to useful citizenship." Minniefield, 2020 IL App (1st) 170541, ¶ 35. Thus, the proportionate penalties clause goes further than the eighth amendment in offering protection against oppressive penalties and sentences. Minniefield, 2020 IL App (1st) 170541, ¶ 35. See also People v. Clemons, 2012 IL 107821, ¶ 39; People v. Fernandez, 2014 IL App (1st) 120508, ¶ 63 ("the Illinois Constitution places greater restrictions on criminal sentencing than the eighth
amendment's prohibition"). Unlike other constitutional provisions affecting criminal defendants, these two provisions—the eighth amendment and the proportionate penalties clause—are not in lockstep. People v. Franklin, 2020 IL App (1st) 171628, ¶ 56; People v. Savage, 2020 IL App (1st) 173135, ¶ 65; Minniefield, 2020 IL App (1st) 170541, ¶ 35.
¶ 74 Young Adult Sentencing
¶ 75 Our state constitution's proportionate penalties clause requires a balancing of the twin goals of retribution and rehabilitation; and our state's statutes and case law treat young adults, who are under 21 years of age, differently than adults.
¶ 76 Recent and traditional legislative enactments support the view that "youthful offender[s]" are those under the age of 21. 730 ILCS 5/3-3-9(a)(1.5) (West 2018) (parole review for under-21-year-olds is called "youthful offender parole"). For example, our legislature changed the law to allow an individual convicted of first degree murder to be eligible for parole after serving only 20 years, if the individual was under 21 years old at the time of the offense and was sentenced after the law took effect. Pub. Act 100-1182 (eff. June 1, 2019) (adding 730 ILCS 5/5-4.5-110); Pub. Act 101-288, § 5 (eff. Jan. 1, 2020) (amending 730 ILCS 5/5-4.5-110(b) and renumbering as 730 ILCS 5/5-4.5-115(b)). Urging passage of this bill, House Majority Leader Barbara Flynn Currie argued that under-21-year-olds are "young people" who "do not always have good judgment." 100th Ill. Gen. Assem., House Proceedings, Nov. 28, 2018, at 48-49 (statements of Representative Currie). The Juvenile Court Act of 1987 defines a "[m]inor" as "a person under the age of 21 years subject to this Act" (705 ILCS 405/1-3(10), 5-105(10) (West 2018)), while an " '[a]dult' means a person 21 years of age or older" (705 ILCS 405/1-3(2) (West 2018)).
¶ 77 There are many other ways in which our state treats individuals under-21-year-olds differently, such as prohibiting sales to them of alcohol (235 ILCS 5/6-16(a)(i) (West 2018)),
cigarettes (Pub. Act 101-2, § 25 (eff. July 1, 2019) (amending 720 ILCS 675/1)), and wagering tickets (230 ILCS 10/18(b)(1) (West 2018)), prohibiting their gun ownership without parental permission (430 ILCS 65/4(a)(2)(i) (West 2018)) and limiting Class X sentencing for recidivist offenders to those offenders "over the age of 21 years" (730 ILCS 5/5-4.5-95(b) (West 2018)). See also People v. Mosley, 2015 IL 115872, ¶ 36 (a ban on handgun possession by " 'minors' " under 21 does not violate the second amendment); 760 ILCS 20/2(1) (West 2018) (Illinois Uniform Transfers to Minors Act defines an adult as one "21 years of age" or older).
¶ 78 In addition to our state's statutory law, defendant's arguments for consideration of his rehabilitative potential find support in his individual factual record. The State conceded at sentencing that this was "a high school drama," and the sentencing court found that defendant had "no [criminal] background" at all. Although the court stated that it had considered "all" the factors in aggravation and in mitigation, it did not once mention defendant's age or rehabilitative potential. At sentencing, defense counsel referred to his client as a 25-year-old, and the trial court expressed bewilderment at the speed of events. The court remarked: "That night it just deteriorated so quickly. It is hard to get your head around [it]." While the court found that the presence of a gun could escalate events and emotions, it did not consider whether teenage emotions and impulsivity could also play a role.
¶ 79 Although the record below does not contain expert evidence on the developing teenage brain, that evidence can easily be presented to the trial court at sentencing. In the interests of judicial economy, and given the particular facts of this case and its procedural posture, I find that it would be a waste of time, money and legal resources to deny this claim now only to see it back in a postconviction petition. Thus, I would remand for resentencing now.