People v. Gipson , 34 N.E.3d 560 ( 2015 )

2015 IL App (1st) 122451THIRD DIVISION
May 27, 2015
No. 1-12-2451
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
) No. 06 CR 16086-02
v. )
)
ROMARR GIPSON, ) The Honorable
) Brian K. Flaherty
Defendant-Appellant. ) Judge, presiding.
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
OPINION
¶1 Defendant Romarr Gipson was tried and sentenced as an adult for offenses he committed
as a juvenile. After defendant was automatically transferred from juvenile court to adult court,
the court found him unfit to stand trial but later determined he had been restored to fitness. The
trial court found defendant guilty of the attempted first-degree murder of Clifton Smith and
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Anthony Milton, aggravated battery with a firearm and aggravated discharge of a firearm. The
court also found that he personally discharged a firearm. Acknowledging its limited sentencing
discretion, the trial court imposed the minimum sentence for two counts of attempted murder, a
cumulative sentence of 52 years in prison. On appeal, defendant challenges the fitness restoration
proceedings, the imposition of two firearm enhancements and the constitutionality of the
statutory transfer and sentencing scheme. We reverse and remand for further proceedings.
¶2 I. BACKGROUND
¶3 A. Pretrial
¶4 Defendant, then 15 years old, and his older half-brother, codefendant Roman Formin,
were charged with 14 counts arising from a shooting on June 14, 2006. Defendant, who had just
turned 15 years old when the offense occurred, was transferred to adult court due to the exclusive
jurisdiction provision of the Juvenile Court Act of 1987, otherwise known as the Illinois
automatic transfer statute. 705 ILCS 405/5-130 (West 2006); see People v. Patterson, 2014 IL
115102, ¶ 2. This was not, however, defendant's first encounter with the legal system.
¶5 The record indicates that during defendant's early childhood, he lived with both parents
and his siblings in a relatively stable home, although at one point, defendant reported using
marijuana by age seven. At the same age, in 1998, defendant was arrested for the murder of Ryan
Harris. Defendant, who had just completed kindergarten, was the youngest person in our nation
to be charged with murder. An eight-year-old boy was also charged. In re Harris, 335 Ill. App.
3d 517, 519 (2002). At this time, defendant was detained at Hartgrove Hospital in lieu of jail but
apparently not for the purpose of psychiatric treatment. After semen was discovered on the
victim's underwear, the State determined that a different individual was responsible, not the two
boys. It appears that Floyd Durr ultimately pled guilty without qualification to the sexual assault
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of Harris and entered a guilty plea to murder pursuant to North Carolina v. Alford, 400 U.S. 25(1970). 1 Following this incident, the relationship between defendant's parents deteriorated and
defendant suffered from post-traumatic stress disorder (PTSD). This would be one among many
psychological and mental afflictions suffered by defendant. 2
¶6 Several different judges presided over defendant's present case. During those
proceedings, it became known that about six months before this offense occurred, Judge Stuart F.
Lubin found defendant unfit to stand trial in an unrelated juvenile case, which apparently
involved an animal cruelty charge based on defendant killing a dog by slamming it into concrete
(No. 05 JD 5967). In addition, defendant was hospitalized for psychiatric reasons on several
occasions during these proceedings. At times when defendant was released on bail and was not
hospitalized, he attended therapeutic day school. Defendant also had encounters with the police
before trial, although they did not all lead to convictions. On one occasion, defendant threw a
bag containing suspected cannabis on the ground and fled from the police. On other occasions,
he shoplifted and threatened an individual with a BB gun. He was also reported to have attacked
his mother. While the record contains extensive information regarding defendant's mental health,
we recite only those facts necessary to understand the issues on appeal.
¶7 In 2007, the Illinois Department of Human Services (IDHS) determined that defendant
was unfit to stand trial based on the same opinion of psychiatrist Joseph McNally. Dr. McNally,
who worked at Streamwood Behavioral Health Systems (Streamwood), found that defendant's
eye contact was intermittent, his affect was blunted, his knowledge was below average, and he
1
An Alford plea occurs where the defendant pleads guilty in light of a strong factual basis but
nonetheless proclaims his innocence. See People v. Cabrera, 402 Ill. App. 3d 440, 444 (2010).
2
In October 2004, defendant settled his lawsuit against the City of Chicago for $2 million, which
was placed in an annuity. Defendant's eight-year-old codefendant in the Harris case settled for
$6.2 million in 2005.
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was guarded, but he cooperated and was alert. In addition, defendant had a deficit in
concentration, and his IQ was 58, placing him in the mild mental retardation range. Dr.
McNally's report also noted, however, that Dr. DiDomenico found defendant's ability to question
him strongly indicated that defendant's capabilities were better than his score suggested. Dr.
DiDomenico suspected that defendant was malingering. In addition, defendant, who could be
disruptive and threaten peers, had recently been restrained and given antipsychotic medication
targeting aggression after an episode of agitation.
¶8 Defendant was diagnosed with mood disorder, attention deficit hyperactivity disorder,
conduct disorder, a history of auditory processing disorder and mild mental retardation or
borderline intellectual functioning. In addition, Dr. McNally could not rule out PTSD and
defendant was being given psychotropic medication to help with anxiety, poor focus, aggressive
tendencies and mood lability. Regarding fitness, defendant struggled with concepts of oath and
perjury, and had a limited understanding of plea bargaining but Dr. McNally also sensed that
defendant did not put forth his best effort to learn the fitness material. In August 2007, the trial
court agreed that defendant was unfit to stand trial.
¶9 By November 2007, Streamwood found defendant was fit to stand trial but in the spring
of 2008, IDHS disagreed, as did Ada S. McKinley Community Services, Inc. Dr. Carl
Wahlstrom, the forensic psychiatrist hired by defendant, also found defendant was unfit. We
further note that at a hearing on September 5, 2008, defense counsel expressed concern regarding
defendant's inability to cooperate with him and stated that defendant was not receiving his
medication in jail. In November 2008, social worker Marcy Lerner met with defendant and his
mother, apparently at Dr. Sharon Coleman's request, and found that defendant was non-
compliant with psychotropic medications. Although defendant's mother was not sure whether he
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was taking his medication, the assistant State's Attorney (ASA) reported that defendant was
refusing medication. Lerner also stated that when defendant was anxious, he self-mutilated by
picking his skin and, consequently, his finger was permanently deformed. Lerner found
defendant was traumatized by the 1998 arrest.
¶ 10 At about the same time that Lerner completed her report, Dr. Coleman found defendant
was fit to stand trial because he understood the nature and purpose of the proceedings against
him and was able to assist in his defense, if he chose to do so. She stated that she had not
addressed defendant's fitness to stand trial with medication because he had not been prescribed
psychotropic medication. This determination was seemingly based on the October 2008
medication profile from Cermak Health Services, which noted that defendant had no active
prescriptions. In addition, Coleman reported that defendant said he was last compliant with a
medication regimen in September 2008. Regarding the proceedings against him, defendant said,
"they can't do nothing to me because they know that I have been traumatized when had [sic] I
was young." Following an examination on November 25, 2008, psychiatrist Dr. Nishad Nadkarni
similarly found that defendant was fit to stand trial, noting that he was not presently prescribed
psychotropic medications and there was no indication that they were needed.
¶ 11 At a hearing before Judge Jorge Luis Alonso on April 7, 2009, defense counsel said that
defendant was not getting any medications in jail and asked the court to have the jail transfer
defendant to the psychiatric unit for an evaluation. Defense counsel was not sure that the jail was
aware of defendant's mental illness history. The court ordered the transfer but acknowledged the
possibility that the sheriff would ignore the order. In May 2009, Judge Alonso ordered that
defendant's fitness be reevaluated.
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¶ 12 After reexamining defendant on August 17, 2009, Dr. Wahlstrom modified his prior
opinion, finding that defendant understood the charges as well as the role of courtroom personnel
and proceedings. Dr. Wahlstrom also found, however, that "[i]t may be helpful, secondary to
cognitive limitations (borderline intellectual functioning versus upper level mild mental
retardation) to provide simple explanations of legal matters with frequent review to ensure his
adequate understanding." In contrast to Dr. Wahlstrom's prior opinion, he now believed
defendant understood his attorney, trusted him and would work with him. With that said,
defendant had residual PTSD symptoms, such as emotional reactivity and being guarded, and
should continue to receive psychiatric services, counseling and medication therapy. Dr.
Wahlstrom further noted that defendant currently took Risperdal but that his medication was not
impairing his ability to concentrate. Dr. Wahlstrom concluded, "Mr. Gipson is mentally fit (at
least marginally) to stand trial with medication."
¶ 13 A month later, Dr. Jonathan Kelly evaluated defendant's fitness on the State's behalf.
Defendant said he had been in "one hundred thousand" fights but never threatened anyone with a
gun. Dr. Kelly observed sores covering defendant's face due to picking his skin. He avoided eye
contact, was oppositional, irritable, impatient, and angry but was alert and oriented. He sang to
himself while pounding his hand on the wall or table and was restless. Although Dr. Kelly first
noted that defendant spoke in phrases rather than sentences, he later noted that defendant was
able to speak in full sentences. In addition, defendant lacked insight, had a history of poor
judgment and impulse control, and gave responses that were inconsistent with both his other
responses in this interview as well as prior evaluations. Defendant said he did not trust his
attorney and did not care what his attorney did. Defendant also thought that he was unfit to stand
trial. Dr. Kelly, however, believed defendant was invested in being found unfit. Furthermore,
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defendant said he was on Risperdal because he would "splash out" and fight, and that his
medicine led to drowsiness and headaches if he did not eat. He believed the medicine made one
worse but he did not skip doses. When asked if he had symptoms of mental illness, defendant
responded that his body would hurt and he would have a headache. Moreover, defendant did not
believe his behavior was consistent with conduct disorder, but records suggested otherwise.
¶ 14 Dr. Kelly diagnosed defendant with a history of conduct disorder but could not rule out
cannabis dependence, malingering or borderline intellectual functioning. In addition, Dr. Kelly
found defendant was fit to stand trial, without medication, as he adequately understood the
charges and the nature of proceedings and was able to assist in his defense. Although defendant
was taking Risperdal, an antipsychotic medication, defendant did not experience side effects that
would interfere with his fitness to stand trial and did not need medicine to maintain his fitness.
¶ 15 Defendant appeared before Judge Maura Slattery Boyle, for the first and only time, at his
fitness restoration hearing on October 2, 2009. While defense counsel tendered Dr. Wahlstrom's
recent report and Lerner's 2008 report, the State tendered Dr. Kelly's report. The court noted that
the parties stipulated to the authenticity and admissibility of the doctors' reports, stating:
"And as I understand it the parties have agreed as to the authenticity and
admissibility of Defense Exhibit No. 1. *** and Mr. Urdangen, please correct me if the
Court is wrong, that Mr. Gipson had been evaluated twice and at one point the doctor had
questioned Mr. Gipson's fitness. On a subsequent evaluation the doctor could not - -
changed his position and could not rule out that Mr. Gipson was fit to stand trial. Is the
Court correct as to that statement in regards to the doctor's evaluation?"
Defense counsel confirmed that the court was substantially correct. The court then stated, "And
just so that it's clear, the prior determination was that he was unfit and this most recent ***
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indicates he is marginally fit with medication." After the court stated that it had reviewed the
documents, the following colloquy ensued:
"THE COURT: And just so the record is clear, both parties I assume, *** agree
that the doctors who have conducted these evaluations of Mr. Gipson are extremely
qualified and in regards to their experience and ability it is, it is unreported [sic] and both
of them are deemed highly qualified in the community, is that correct, Mr. Darman?
MR. DARMAN [Assistant State's Attorney]: Yes, Judge.
THE COURT: And Mr. Urdangen?
MR. URDANGEN [defense attorney]: Yes, Judge. Also I would just say I would
not contest the qualifications of the State's expert.
***
THE COURT: Therefore then as indicated the most recent one conducted by the
Defense, by Carl Wahlstrom, had originally indicated that Mr. Gipson was unfit. *** [A]
re-evaluation was conducted or an additional evaluation, at which time Mr. Wahlstrom's
opinion changed from the original one and indicated again that Mr. Gipson is marginally
fit with medication.
Therefore, due to the change and opinion of Dr. Wahlstrom, the Defense no
longer adhering to the original and being of a new opinion that he is marginally fit with
medication as well as the State's expert's opinion that Mr. Gipson is fit, the Court will
find that Mr. Gipson is fit to stand trial."
Although Judge Boyle relied on both reports, she did not expressly reject or question the
qualification to Dr. Wahlstrom's opinion, i.e., that defendant was only marginally fit if
medicated.
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¶ 16 B. Trial
¶ 17 At the bench trial before Judge Brian K. Flaherty, the State's evidence generally showed
that at about noon, Anthony Milton and Clifton Smith were in Milton's car at a gas station when
codefendant approached the passenger side of the car with a gun and fired shots at Smith. As
Milton attempted to exit through the driver's side window, defendant approached from that side
and raised his weapon. Milton was shot in the left buttock. Nearby bike patrol officers arrived
soon after. We note that a surveillance video presented at trial is not included in our record on
appeal. Smith, who was shot two or three times, had extensive injuries. The most damaging of
his gunshot wounds entered his right upper chest and exited his right back. In addition, he had
several surgeries, including a kidney transplant, and spent three months in the hospital. As to
Milton, the bullet that entered his buttocks exited from his thigh. He was discharged from the
hospital the same day but experienced numbness in his leg. In addition to evidence regarding the
shooting itself, the parties presented expert testimony regarding defendant's mental health, as
defense counsel's position was that defendant was a "disturbed retarded child" under his older
brother's spell and did not intend to kill anyone. The experts' testimony, however, went beyond
his mental abilities at the time of the offense.
¶ 18 Dr. Wahlstrom testified that he changed his fitness opinion because at their final meeting,
defendant had benefitted from the additional effects of age and treatment. Toward the beginning
of their interaction, defendant was at the lowest end of the continuum regarding communication
ability. Assessments closer to the time of the incident were consistent with extreme verbal
impairment, which would have affected defendant's ability to understand situations. In addition,
Dr. Wahlstrom found no evidence of malingering aside from defendant being withdrawn during
exams, which could also show difficulty communicating. Moreover, defendant's improvement
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No. 1-12-2451
showed he was not malingering. We note that Dr. Wahlstrom did not address his finding that
defendant was only marginally fit with medication.
¶ 19 Dr. Coleman testified that she found defendant fit to stand trial in 2008. During their
meetings, he followed directions, made good eye contact and was alert. There was no apparent
disturbance of concentration but he had a speech impairment in that he would mispronounce
words or use words that did not correspond to his meaning. With that said, he understood
questions asked and his speech disorder would not prevent him from communicating. In
addition, his ability to process information was impaired but Dr. Coleman could not speak to
how substantial that impairment was. Dr. Coleman further testified that conduct disorder, which
defendant had been diagnosed with, typically involved impulsivity and a disregard for others'
rights. She also found that defendant's test results underestimated his ability but she did not form
the opinion that he was malingering. When asked about his lawyer's role, defendant said that his
lawyer was supposed to get his case thrown out. Moreover, defendant indicated that he
experienced flashbacks while in the courtroom. Dr. Coleman agreed that defendant had suffered
from PTSD, but she believed he was in remission as of 2008.
¶ 20 Following evidence and argument, Judge Flaherty stated he had no doubt that defendant
and codefendant acted in tandem. The court found defendant guilty of attempted first-degree
murder, aggravated battery with a firearm and aggravated discharge of a firearm with respect to
Smith and Milton as alleged in 10 counts. All counts merged into two counts of attempted first-
degree murder.
¶ 21 C. Posttrial
¶ 22 Following trial, defendant moved for the court to declare that Illinois' sentencing scheme,
in conjunction with the automatic transfer statute, was unconstitutional as applied because it
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violated his eighth amendment right to be free from cruel and unusual punishment. Defendant
argued that the minimum sentence in this instance, 52 years, was materially indistinguishable
from life without parole and did not provide him with a meaningful opportunity to obtain release
based on maturity and rehabilitation. According to the National Center for Health Statistics, the
average life expectancy of African Americans was 67.8 years. The court denied the motion.
¶ 23 At sentencing, the State noted that defendant had recent convictions for possession of a
controlled substance (No. 08 CR18069) and aggravated battery (No. 10 CR 11443). The State's
witnesses relayed details of the prior animal cruelty charge and another incident in which he
accidentally shot a victim in the leg. The court asked the ASA,"[W]hat is the sentencing scheme?
What's the minimum sentence?" Both parties agreed that the minimum cumulative sentence
would be 52 years in prison. Specifically, the minimum sentence for each count of attempted
murder was 6 years in prison plus a 20-year enhancement on each count for personally
discharging a firearm. In addition, the counts would be consecutive due to the seriousness of the
injuries and he would be required to serve 85% of his sentence. The ASA argued that the most
aggravating factor aside from testimony about other incidents was the surveillance video, which
captured the entire incident. In contrast, defense counsel argued that defendant was one month
past his 15th birthday when the offense occurred and that he had already been found unfit at that
time. Counsel emphasized defendant's mental impairments, as well as the relatively superficial
wound sustained by Milton, whom defendant personally shot.
¶ 24 The court found as follows:
"This case is a tragedy on so many different levels. It's a tragedy. And I've got - - I
read all the reports. *** And to say that Mr. Gipson had a troubled childhood would be
an understatement. It is a tragedy what happened to Mr. Gipson. That is, I don't think
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there's anybody here that would disagree with that statement about what happened to him
when he was wrongfully accused as a seven year old.
However, fast forward, the system failed Mr. Gipson. I don't think there's anyone
here who would dispute that. He certainly had some mental health issues and some other
issues that should have been dealt with. They apparently, from the reports I read, weren't
dealt with.
Now, let's go back, let's go forward to this case here. This case is nothing but, as
far as I'm concerned, an ambush. The defendant and his brother, step-brother, approached
these two individuals, then came back when the two individuals were in the car.
Literally, they are trapped in the car. Because they, both men, the step-brother
was on the passenger side, the defendant was on the driver's side, and both opened fire at
the individuals. There is nothing but - - it was nothing but an ambush.
And unfortunately, Mr. Urdangen, I'm going to follow the law. Unless somebody
in the Appellate Court thinks - - whether or not I think - - doesn't matter what I think is
appropriate, what I don't think is appropriate. They took that out of my hands a long time
ago."
For each count, the court sentenced defendant to 6 years in prison plus a 20-year enhancement
for personally discharging a firearm, to be served consecutively.
¶ 25 After admonishing defendant regarding his appeal rights, the court asked defendant if he
understood. The transcript reflects a pause, following which, defense counsel stated, "Your
Honor, I think Mr. Gipson is having a hard time paying attention to anything, and I wonder if
perhaps we could consider admonishing him when we [sic] comes back for a motion to
reconsider. " Instead, the court passed the case and readmonished defendant following a recess.
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Defendant then said he understood. Ten days later, the United States Supreme Court issued its
decision in Miller v. Alabama, 567 U.S. _, 132 S. Ct. 2455 (2012), which held that the eight
amendment prohibits sentencing schemes that mandate the imposition of life-without-parole
sentences on juveniles. Id. At the hearing on defendant's motion to reconsider, the trial court
agreed with the State's assertion that Miller was distinguishable.
¶ 26 II. ANALYSIS
¶ 27 A. Fitness to Stand Trial
¶ 28 On appeal, defendant challenges the propriety of his fitness restoration hearing.
Specifically, he asserts that the trial court erred by relying solely on the experts' stipulated
reports. Initially, the State asserts that defendant forfeited this issue by failing to raise it prior to
trial and in a posttrial motion. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 50. Fitness for
trial, however, involves a fundamental right. Id. Accordingly, courts have repeatedly determined
that alleged errors concerning fitness may be reviewed under the plain error doctrine. People v.
Cook, 2014 IL App (2d) 130545, ¶ 13; People v. Esang, 396 Ill. App. 3d 833, 840 (2009); People
v. Contorno, 322 Ill. App. 3d 177, 180 (2001). We likewise review defendant's contention.
¶ 29 Due process prohibits the criminal prosecution of a defendant who is unfit to stand trial.
People v. Taylor, 409 Ill. App. 3d 881, 895-96 (2011). A defendant is unfit to stand trial when a
mental condition renders him unable to understand the purpose and nature of the proceedings
against him or to assist counsel in his defense. Cook, 2014 IL App (2d) 130545, ¶ 12 (citing 725
ILCS 5/104-10 (West 2010)). With that said, fitness involves a defendant's ability to function at
trial, not his sanity or competence in other contexts. Taylor, 409 Ill. App. 3d at 896. Thus, a
defendant may be fit for trial but otherwise mentally unsound. Id. In addition, where a defendant
was previously adjudicated to be unfit to stand trial, a presumption exists that the condition of
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unfitness remains until the defendant has been adjudicated to be fit at a valid subsequent hearing.
People v. Greene, 102 Ill. App. 3d 639, 641-42 (1981). Furthermore, the court should be active,
not passive, in assessing a defendant's fitness. People v. Thompson, 158 Ill. App. 3d 860, 865
(1987). Because fitness involves an issue of constitutional dimension, the record must
affirmatively show the exercise of the court's discretion and judgment. Cook, 2014 IL App (2d)
130545, ¶ 13; Greene, 102 Ill. App. 3d at 642; see also Contorno, 322 Ill. App. 3d at 179
(acknowledging that the trial court may have made an independent determination of fitness but
that the record did not affirmatively show that). It does not follow, however, that the trial court is
required to make detailed findings regarding fitness. People v. Goodman, 347 Ill. App. 3d 278,
287 (2004).
¶ 30 Moreover, the trial court may consider an expert's stipulated testimony to assess a
defendant's fitness but may not rely solely on the parties' stipulation to an expert's conclusion
that the defendant is fit. Taylor, 409 Ill. App. 3d at 896; Greene, 102 Ill. App. 3d at 642; but see
Contorno, 322 Ill. App. 3d at 179 (adding that fitness cannot be based solely on "a stipulation to
the existence of psychiatric conclusions or findings" (emphasis added)). The distinction between
proper and improper stipulations, however, is a fine one. Thompson, 158 Ill. App. 3d at 864.
Where the trial court's determination is based on not only stipulations, but on the court's review
of a psychological report and the court's own observations of the defendant, due process is
generally satisfied. Cook, 2014 IL App (2d) 130545, ¶ 15; see also Esang, 396 Ill. App. 3d at 839
(stating that the trial court must analyze and evaluate an expert's basis for his opinion). After
considering stipulations and personally observing the defendant, a circuit court can either (1) find
the defendant fit; (2) find the evidence insufficient to demonstrate that the defendant's fitness has
been restored; or (3) seek additional information. People v. Lewis, 103 Ill. 2d 111, 116 (1984).
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¶ 31 The parties dispute the appropriate standard of review to be applied in this instance.
Defendant contends that no factual dispute or credibility assessment is involved and, thus, our
review is de novo, but defendant has not cited any case applying a de novo standard of review to
this particular issue. See In re D.G., 144 Ill. 2d 404, 408-09 (1991) (applying a de novo standard
of review to analysis of probable cause). In addition, as we will discuss further, the two experts
did not reach identical conclusions. Accordingly, it is not entirely accurate in this instance to say
that the trial court was not required to make a credibility assessment. In contrast, the State asserts
that we may not reverse the trial court's judgment unless it was against the manifest weight of the
evidence. To the State's credit, our supreme court has recently applied that standard of review to
the ultimate determination that fitness has been restored. See People v. Stahl, 2014 IL 115804,
¶ 26; but see Cook, 2014 IL App (2d) 130545, ¶ 13 (a trial court's determination that a defendant
is fit to stand trial generally will not be reversed absent an abuse of discretion). With that said,
our initial question is whether the trial court had sufficient information before it to make an
informed decision. Applying the manifest weight of the evidence standard would presume that a
proper and complete hearing was held. Regardless of which standard of review applies, we find
further proceedings are required.
¶ 32 Here, the parties stipulated to the reports of Dr. Kelly and Dr. Wahlstrom, not merely
their conclusions. Cf. Contorno, 322 Ill. App. 3d at 179 (finding it was unclear whether
stipulation was to the report's ultimate conclusion or to the notion that the expert's testimony
would conform with his report); Greene, 102 Ill. App. 3d at 641-43 (finding the fitness hearing
was insufficient where the parties stipulated not only to the contents of experts' reports, but also
stipulated to the fact that the defendant was fit for trial). In addition, the parties did not stipulate
to the ultimate issue of defendant's fitness, notwithstanding that the trial court used certain loose
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language suggesting otherwise. We note that at oral arguments, the State represented that "all
parties agreed that defendant was no longer unfit," a representation suggesting that the parties
improperly stipulated to the conclusion that defendant was fit. We disagree with the State's
curious characterization of the parties' agreement, a characterization that would, if accurate, have
been favorable to defendant's position on appeal. We are nonetheless troubled by the role that
the experts' differing conclusions played in determining that defendant's fitness was restored.
¶ 33 Dr. Kelly, without qualification, opined that defendant was fit to stand trial. In contrast,
Dr. Wahlstrom opined, "Mr. Gipson is mentally fit (at least marginally) to stand trial with
medication." The trial court relied equally on both doctors' opinions, stating, "[t]herefore, due to
the change and opinion of Dr. Wahlstrom, the Defense no longer adhering to the original and
being of a new opinion that he is marginally fit with medication as well as the State's expert's
opinion that Mr. Gipson is fit, The Court will find that Mr. Gipson is fit to stand trial."
¶ 34 Under our jurisprudence, a defendant is either fit to stand trial, fit to stand trial with
medication, or not fit. Dr. Wahlstrom's opinion, on which the court appeared to heavily rely, did
not reach any of those determinations. Instead, Dr. Wahlstrom found defendant to be
"marginally" fit. Our jurisprudence recognizes no such qualification to a defendant's fitness. As
stated, stipulations to experts' reports are generally acceptable. Here, however, Dr. Wahlstrom's
opinion required the trial court to seek more information in order to make an informed decision,
namely, what Dr. Wahlstrom meant by "marginally." Instead, Judge Boyle relied on Dr.
Wahlstrom's opinion without question.
¶ 35 While Dr. Kelly, and ultimately the trial court, determined that defendant was fit to stand
trial without medication, Dr. Wahlstrom reached the opposite conclusion. The record does not
disclose why Dr. Wahlstrom believed defendant was only fit with medication or the trial court's
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means of resolving the experts' conflicting opinions. We also note that contrary to the State's
suggestion at oral arguments, twice during pretrial proceedings, defense counsel had informed
judges who previously presided over defendant's case that defendant was not receiving necessary
medication in jail. See Stahl, 2014 IL 115804, ¶ 26 (the ultimate determination regarding
whether a defendant is fit to stand trial must be considered in light of all circumstances). That
earlier representation as well as Cermak's belief in October 2008 that defendant had not been
prescribed medication raises questions regarding whether the State was always aware of what
defendant had been prescribed or needed. At a minimum, whether defendant needed medication
would impact his ability to assist counsel. In addition, defendant alternated between trusting and
not trusting counsel, and his behavior at the last meeting with Dr. Kelly was seemingly bizarre.
Furthermore, although not information before Judge Boyle, we note that defendant experienced
difficulty concentrating at sentencing before Judge Flaherty, which places some doubt on
defendant's ability to listen at trial so as to assist counsel in his defense.
¶ 36 We are also troubled by the court's statement that Dr. Wahlstrom "could not rule out that
Mr. Gipson was fit to stand trial." As stated, the presumption at a restoration hearing is that the
defendant is unfit. Thus, we presume that the state of things continues until the contrary is
shown. People v. Mata, 316 Ill. App. 3d 849, 853 (2000). The question here is whether the trial
court could rule out the possibility that defendant was still unfit. In addition, while the trial court
is not as a rule required to question the defendant, the court did not do so here, notwithstanding
that this was Judge Boyle's first encounter with defendant. Thompson, 158 Ill. App. 3d at 865
(finding that whether the trial court questioned the defendant directly is a factor, although not
dispositive). She did not question defense counsel regarding his own interaction with defendant
either.
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¶ 37 As stated, following a fitness hearing, the court may choose from one of three options. In
this instance, the court should have chosen the third option, to seek additional information.
Contrary to the State’s assertion, we do not find that this court’s decision in Taylor requires a
different result. There was no indication in Taylor that an expert qualified his opinion regarding
fitness in a manner that left the expert’s opinion unclear. Taylor, 409 Ill. App. 3d at 896. In
addition, there was no indication that the trial court there misapplied the presumption of
unfitness. Moreover, unlike the present case, in Taylor, the two doctors concurred in their
assessment, finding that the defendant was fit to stand trial with medication. Id. at 884-86.
¶ 38 Having determined that error occurred, we must determine what relief is appropriate.
While our supreme court previously disapproved of retroactive fitness hearings, that disapproval
has since been overcome. People v. Steppan, 322 Ill. App. 3d 620, 631 (2001); People v. Melka,
319 Ill. App. 3d 431, 436, 439 (2000); but see Esang, 396 Ill. App. 3d at 840 (Retrospective
fitness hearings are generally inappropriate where the defendant was tried and sentenced more
than a year earlier.). “[I]t appears that retrospective fitness hearings are now the norm.” People v.
Mitchell, 189 Ill. 2d 312, 339 (2000); see also Estock v. Lane, 842 F.2d 184, 188 (7th Cir. 1988)
(The passage of time is not insurmountable if the record contains sufficient evidence from
knowledge contemporaneous to the defendant’s trial.). We therefore remand this matter to the
trial court for a retrospective fitness hearing, at which the parties may present the testimony of
Dr. Wahlstrom to clarify the opinion he held at the time of the fitness hearing, as well as the
testimony of Dr. Kelly regarding his own opinion at that time. We recognize that at this late date,
these experts may be unavailable or may be unable to recall necessary details. If the court
determines that evidence is inconclusive or suggests that the defendant was unfit, defendant is
entitled to a new trial. People v. Hill, 297 Ill. App. 3d 500, 517 (1998). If the court determines
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that defendant's fitness without medication at his prior trial can be accurately assessed and
confirmed, despite the passage of time, his conviction may be affirmed. Id. Under these
circumstances, the trial court is in a better position to determine whether Dr. Wahlstrom and Dr.
Kelly can provide a complete understanding of their differing opinions.
¶ 39 B. Firearm Enhancement
¶ 40 Next, defendant asserts that the firearm enhancement statute permitted the imposition of
only one enhancement. 3 We review this question of statutory interpretation de novo. People v.
Chenoweth, 2015 IL 116898, ¶ 20.
¶ 41 Section 8-4(c)(1) of the Criminal Code of 1961 sets forth several sentencing
enhancements for attempted first-degree murder. 720 ILCS 5/8-4(c)(1) (West 2006). At issue
here, is subsection 8-4(c)(1)(C), which provides that "the sentence for attempt to commit first
degree murder is the sentence for a Class X felony, except that *** an attempt to commit first
degree murder during which the person personally discharged a firearm is a Class X felony for
which 20 years shall be added to the term of imprisonment imposed by the court." 720 ILCS 5/8-
4(c)(1)(C) (West 2006). Defendant essentially asserts that the statute is ambiguous as to whether
the firearm enhancement may be imposed where a defendant is merely accountable for attempted
murder and that this ambiguity must be resolved in his favor. According to defendant, the trial
court erroneously imposed two firearm enhancements because his personal discharge of a
firearm injured only one victim and defendant was merely accountable for the attempted murder
of the second victim. The State responds, in part, that defendant would more accurately be
3
Because defendant's conviction and sentence will not be vacated unless the trial court
determines that he was unfit or that his fitness status at the first trial was inconclusive, his
sentencing challenges are not moot. People v. McCoy, 2014 IL App (2d) 130632, ¶ 11 (stating
that an issue is moot where intervening events have rendered it impossible for the reviewing
court to grant effectual relief).
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No. 1-12-2451
characterized as a principal with respect to the attempted murder of both victims. Even assuming
defendant's characterization prevails, however, we find no error.
¶ 42 We turn our attention to this court's interpretation of a similar statute setting forth firearm
enhancements for first-degree murder. Section 5-8-1(a)(1)(d)(ii) of the Unified Code of
Corrections states that “if, during the commission of the offense, the person personally
discharged a firearm, 20 years shall be added to the term of imprisonment imposed by the court.”
730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2006). Recently, in People v. Flynn, 2012 IL App (1st)
103687, appeal denied, No. 115654 (Ill. May 28, 2014), the reviewing court rejected a similar
challenge to that 20-year enhancement. The reviewing court found that “[a]lthough subsection
(d)(ii) limits the applicability of accountability principles somewhat by requiring the first degree
murder accountable defendant to have personally discharged a firearm, (d)(ii) *** does not
contain any language that restricts its application to only those defendants who personally
discharged a firearm that actually caused the victim’s severe injury or death.” Id. ¶ 35. In
addition, the word "personally" only modifies the clause "discharged a firearm" and, "thus, does
not insulate from its application the accountable defendant, like Destephano Flynn, who
personally discharged a firearm during the murder offense but may not have fired the actual
gunshot that hit the murder victim." Id.
¶ 43 In reaching its decision, the reviewing court addressed our supreme court's dictum in
People v. Rodriguez, 229 Ill. 2d 285, 295 (2008). Flynn, 2012 IL App (1st) 103687, ¶¶ 36-37. In
Rodriguez, our supreme court examined whether an unarmed defendant could be subjected to a
firearm enhancement under section 5-8-1(a)(1)(d)(i) (730 ILCS 5/5-8-1(a)(1)(d)(i) (West 2006))
based on a theory of accountability. Rodriguez, 229 Ill. 2d at 286. That section provided that “if
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the person committed the offense while armed with a firearm, 15 years shall be added to the term
of imprisonment imposed by the court.” 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2006)).
¶ 44 In determining that the firearm enhancement could be imposed despite the defendant not
having a firearm at all, our supreme court compared that firearm enhancement to the
enhancement found in section 5-8-1(a)(1)(d)(ii). Rodriguez, 229 Ill. 2d at 294-95. Although
section 5-8-1(a)(1)(d)(ii) requires a defendant to personally discharge a firearm for the
enhancement to apply, section 5-8-1(a)(1)(d)(i) does not. Id. Thus, the use of the word
"'personally[]' *** insulates subsection[] (ii) *** from the application of the principles of
accountability and common design." Id. Conversely, accountability principles apply without
limitation to section 5-8-1(d). Id.¶ 45 The Flynn court recognized Rodriguez merely found that while a defendant is not
required to actually have a firearm in order for the enhancement in section 5-8-1(a)(1)(d)(i) to
apply, a defendant is required to personally discharge a firearm for the enhancement in section 5-
8-1(a)(1)(d)(ii) to apply. Because the defendant in Flynn personally discharged a firearm during
the offense, the firearm enhancement applied, even though the defendant himself did not
proximately cause the victim's injury. Flynn, 2012 IL App (1st) 103687, ¶ 38. The Flynn court
went on to find that the same reasoning applied to the firearm enhancement for attempted first-
degree murder set forth in section 8-4(c)(1). Id. ¶ 43.
¶ 46 We find Flynn to be well reasoned. Similar to section 5-8-1(a)(1)(d)(ii), section 8-
4(c)(1)(C) unambiguously requires an accountable defendant to have personally discharged a
firearm but does not require that he personally discharged his firearm at the victim or injured the
victim. In addition, "personally" only modifies the clause "discharged a firearm." 720 ILCS 5/8-
4(c)(1)(C) (West 2006). The reasoning in Rodriguez suggests that had defendant not discharged a
21
No. 1-12-2451
firearm whatsoever, he could not have been accountable for codefendant's personal discharge of
a firearm under the attempted murder statute; however, that is not the case before us.
Accordingly, the trial court properly imposed two firearm enhancements, regardless of whether
defendant was only accountable for the attempted murder of Smith. We need not consider this
contention further.
¶ 47 C. Mandatory Adult Transfer and Sentencing
¶ 48 1. Constitutional Requirements
¶ 49 Next, defendant asserts that the statutory scheme which led to his cumulative 52-year
sentence violates the eighth amendment to the United States Constitution, the Illinois
proportionate penalties clause, and due process, both facially and as applied. Specifically, he
asserts that the automatic transfer statute, in conjunction with the applicable sentencing statutes,
is unconstitutional. Defendant relies heavily on the United States Supreme Court's recognition
that an offender's youth is relevant to his sentence, as reflected in, Roper v. Simmons, 543 U.S.
551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller, 567 U.S. _, 132 S. Ct. 2455.
After filing the appellant's brief in this case, however, our supreme court rejected similar
contentions in Patterson, 2014 IL 115102. Although defendant maintains that Patterson was
wrongly decided, he agrees that Patterson settled his facial challenges. He nonetheless argues
that Patterson did not foreclose his as-applied challenges.
¶ 50 A strong presumption exists that statutes are constitutional and courts will uphold a
statute whenever reasonably possible, resolving all doubts in favor of the statute's validity. Id.
¶ 90. In addition, the challenging party has the burden of rebutting this presumption. People v.
Willis, 2013 IL App (1st) 110233, ¶ 43. We review a statute's constitutionality de novo.
Patterson, 2014 IL 115102, ¶ 90.
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No. 1-12-2451
¶ 51 The eighth amendment to the United States Constitution states that "Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S.
Const., amend. VIII. This amendment prohibits excessive sanctions and requires the government
to respect all individuals' dignity. Roper, 543 U.S. at 560. Furthermore, the prohibition of cruel
and unusual punishment is interpreted through our maturing society's evolving standards of
decency. Id. at 561.
¶ 52 The United States Supreme Court has repeatedly recognized the special characteristics of
juvenile offenders. Juveniles lack maturity and have an underdeveloped sense of responsibility,
which leads to poor decision making. Id. at 569. They are also more susceptible to negative
influences and peer pressure (Graham, 560 U.S. at 68; Roper, 543 U.S. at 569), and "lack the
ability to extricate themselves from horrific, crime-producing settings" (Miller, 567 U.S. at _,
132 S. Ct. at 2464). "Their own vulnerability and comparative lack of control over their
immediate surroundings mean juveniles have a greater claim than adults to be forgiven for
failing to escape negative influences in their whole environment." Roper, 543 U.S. at 570. As a
result of these characteristics, juveniles' irresponsible conduct is less morally reprehensible than
that of an adult. Id. Furthermore, a juvenile's personality traits are more transitory than those of
an adult. Id. "Juveniles are more capable of change than are adults, and their actions are less
likely to be evidence of an irretrievably depraved character ***." (Internal quotation marks
omitted.) Graham, 560 U.S. at 68. Even heinous crimes do not necessarily mean that the juvenile
is irretrievably depraved and a possibility exists that the juvenile may yet be reformed. Roper,
543 U.S. at 570. "It is difficult even for expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption." Id. at 573.
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No. 1-12-2451
¶ 53 These special qualities diminish penological justifications. Miller, 567 U.S. at _, 132 S.
Ct. at 2465. Retribution is diminished by the offender's reduced blameworthiness. Id. Deterrence
is not furthered because juveniles are less likely to consider potential punishment. Id. The goal of
incapacitation and rehabilitation are negated because juveniles are not incorrigible. Id. Simply
put, youth matters.
¶ 54 In recognition of these realities, over the last decade, the Court has decided three
landmark opinions applying the eighth amendment to juveniles. In Roper, the Court held that the
eighth amendment prohibits the imposition of the death penalty where an offender is under 18
years old when he committed the offense. Roper, 543 U.S. at 578. Five years later, the Court
held in Graham that the eighth amendment prohibited the imposition of life without parole on a
juvenile offender who did not commit homicide. Graham, 560 U.S. at 74, 82. While the State is
not required to guarantee the juvenile eventual freedom for a nonhomicide crime, the State must
give defendants a meaningful opportunity to obtain release by demonstrating their rehabilitation
and maturity. Id. at 74-75. In reaching this determination, the Court recognized that defendants
who neither killed nor intended to kill were categorically less deserving of the most serious
forms of punishment. Id. at 69. Furthermore, life without parole is an especially harsh
punishment for a juvenile because he will spend a greater percentage of his life in prison than an
adult offender who is given the same sentence. Id. at 70.
¶ 55 Most recently, in Miller, the Court held that the eighth amendment prohibits sentencing
schemes that mandate the imposition of life-without-parole sentences on juveniles, even
juveniles who commit homicide. Miller, 567 U.S. at _, _, _, 132 S. Ct. at 2464, 2469, 2475.
Because mandatory penalty schemes prevent the sentencer from considering the defendant's
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No. 1-12-2451
youth and its accompanying characteristics, such schemes also prohibit the sentencer from
considering whether the law's harshest prison term is proportionate. Id. at _, 132 S. Ct. at 2466.
¶ 56 Statutes mandating life without parole for juveniles prevent consideration of the
defendant's age, immaturity, impetuosity, inability to appreciate risks and consequences, family,
environment, the circumstances of the offense, his capacity to assist his attorneys and the
possibility of rehabilitation. Id. at _, 132 S. Ct. at 2468. In addition, these mandatory life terms
create too great a risk that the defendant's sentence will constitute disproportionate punishment.
Id. at _, _, 132 S. Ct. at 2466, 2469. To be clear, Miller does not prohibit the penalty of natural
life without parole, but prohibits its mandatory imposition on juveniles. People v. Davis, 2014 IL
115595, ¶ 43. A juvenile may still be sentenced to natural life without parole for first-degree
murder if the sentence resulted from the trial court's exercise of discretion. Id.¶ 57 We find it unclear whether attempted murder is governed by the holding of Graham or
the holding of Miller, i.e., whether juveniles convicted of attempted murder can never be
sentenced to life without parole or whether they can be sentenced to life without parole so long
as the trial court was given discretion to impose a lesser sentence. As stated, Graham relied on
the reduced culpability of offenders who neither killed nor intended to kill but ultimately held
that the eighth amendment prohibited the imposition of life without parole on a juvenile offender
who did not commit homicide. Graham, 560 U.S. at 74, 82. Here, defendant did not commit
homicide but the trial court nonetheless determined that he did intend to kill. In the context of the
eighth amendment, we seriously question whether attempted murder constitutes a nonhomicide
offense. But see Gridine v. State, 40 Fla. L. Weekly S149 (Fla. Mar. 19, 2015) (not yet released
for publication and subject to withdrawal) (holding that in the context of the eighth amendment,
attempted murder was a nonhomicide offense because Florida required that the victim not
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No. 1-12-2451
survive to qualify as homicide). In any event, we need not resolve that question here. If
attempted murder constitutes a homicide offense and defendant's mandatory minimum sentence
constitutes natural life without parole, the trial court lacked the discretion required by Miller. If
attempted murder constitutes a nonhomicide offense and defendant was effectively sentenced to
natural life without parole, the sentence categorically violates Graham.
¶ 58 Following Miller, our supreme court addressed challenges to Illinois's own juvenile
statutory scheme in Patterson, albeit not in the context of attempted murder. At the heart of these
challenges was the effect of the automatic transfer provision (705 ILCS 405/5-130 (West 2008))
and the adult sentences imposed on the defendant. Patterson, 2014 IL 115102, ¶ 89. Our
supreme court first rejected the defendant's due process challenge to the automatic transfer
statute, finding, in part, that the defendant improperly attempted to support procedural and
substantive due process claims with case law applying the eighth amendment, a separate
constitutional provision. Id. ¶¶ 97-98; see also People v. J.S., 103 Ill. 2d 395, 411 (1984) (finding
that the automatic transfer statute did not deny the defendant due process or equal protection);
People v. Salas, 2011 IL App (1st) 091880, ¶ 76 (automatic transfer did not violate due process).
¶ 59 Next, our supreme court rejected defendant's facial challenge to the automatic transfer
statute under the eighth amendment. Patterson, 2014 IL 115102, ¶¶ 104-06. The court found that
the eighth amendment did not apply to the automatic transfer statute because that statute was
procedural, not punitive. Id. ¶¶ 102, 104-06. Specifically, the court found, "[t]he mere possibility
that a defendant may receive a potentially harsher sentence if he is convicted in criminal court
logically cannot change the underlying nature of a statute delineating the legislature's
determination that criminal court is the most appropriate trial setting in his case." (Emphasis
added.) Id. ¶ 105. We note that in many instances, a defendant's receipt of a harsher sentence is
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No. 1-12-2451
not a mere possibility, but a guarantee. In any event, our supreme court found the defendant's
challenge under the Illinois proportionate penalties clause similarly failed because that clause
was "co-extensive" with the eighth amendment's cruel and unusual punishment clause. Id. ¶ 106.
¶ 60 Furthermore, Patterson rejected the defendant's contention that the automatic transfer
statute in conjunction with the applicable sentencing provisions was unconstitutional under the
eighth amendment as applied to nonhomicide offenders, who were "categorically less deserving
of the most serious forms of punishment than are murderers." (Internal quotation marks omitted.)
Id. ¶¶ 107, 110 (quoting Graham, 560 U.S. at 69). The Patterson defendant had been convicted
of three counts of aggravated sexual assault, was sentenced to 36 years in prison, and was
statutorily required to serve at least 85% of his sentence. Id. ¶ 108. Our supreme court found that
although the sentence was lengthy, it did not equal life in prison without parole. Id. In addition,
Illinois was not required to guarantee a juvenile offender eventual freedom; rather, it only needed
to give him a meaningful opportunity to obtain release by showing he had matured and been
rehabilitated. Id. Furthermore, the Court in Roper, Graham, and Miller closely limited its
reasoning to the most severe of all criminal penalties, not 36-year prison terms. Id. ¶ 110. Our
supreme court concluded, however, by expressing its own concern with the lack of judicial
discretion created by the Illinois automatic transfer statute and strongly urged our legislature to
remedy this outmoded statute. Id. ¶ 111.
¶ 61 None of the aforementioned precedent holds that a sentence of natural life without the
possibility of parole will always be labeled as such. In addition, the as-applied challenge
addressed in Patterson was, as are all as-applied constitutional challenges, based on the specific
facts and argument presented in that case. People v. Huddleston, 212 Ill. 2d 107, 131 (2004) (A
holding that a statute is unconstitutional as applied depends on the specific facts of the case.). No
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No. 1-12-2451
one would question that a juvenile defendant who received a cumulative sentence of 200 years in
prison, as opposed to the 36-year prison term imposed in Patterson, would never have the
opportunity to secure his freedom. In addition, while the legislature is generally entitled to
mandate the imposition of multiple penalties for multiple offenses, in the context of juvenile
defendants, the concerns of Roper, Graham, and Miller are not satisfied by pretending that a
cumulative sentence labeled as a term of years will in all cases be distinct from a sentence of
natural life without the possibility of parole. See also Gridine, 40 Fla. L. Weekly S149 (finding
that a 70-year term for attempted first-degree murder did not give the 14-year-old defendant a
meaningful opportunity to be released and was therefore unconstitutional); Bear Cloud v. State,
2014 Wy 113, ¶ 37, 334 P. 3d 132 (Wyo. 2014) (examining a juvenile's sentence under the
eighth amendment requires consideration of "the entire sentencing package, when the sentence is
life without parole, or when aggregate sentences result in the functional equivalent of life
without parole"); but see State v. Brown, 2012-0872 (La. 5/7/13),118 So. 3d 332 (holding that
Graham does not apply where a juvenile offender committed multiple offenses resulting in
cumulative sentences that exceed his life expectancy). Accordingly, we disagree with other
decisions of this court to the extent they suggest that sentences for a term of years and sentences
for natural life without parole are mutually exclusive in the context of juveniles and the eighth
amendment. See People v. Reyes, 2015 IL App (2d) 120471, ¶ 23 (not yet released for
publication and subject to withdrawal); People v. Cavazos, 2015 IL App (2d) 120171, ¶ 99. In
reaching this conclusion, we do not expand eighth amendment precedent; rather, we merely
decline to create an arbitrary exception to the eighth amendment's requirements where a
juvenile's sentence is in substance a term of natural life without the possibility of parole but in
name, a term of years.
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No. 1-12-2451
¶ 62 2. As-Applied Challenge Under the Eighth Amendment
¶ 63 As stated, defendant contends that the automatic transfer statute in conjunction with our
sentencing laws led to a sentence which violated the eighth amendment as applied. The exclusive
jurisdiction provision of the Juvenile Court Act of 1987 provides:
"Proceedings may be instituted under the provisions of this Article concerning any minor
who prior to the minor's 17th birthday has violated or attempted to violate, regardless of
where the act occurred, any federal or State law or municipal or county ordinance. Except
as provided in Sections 5-125, 5-130, 5-805, and 5-810 of this Article, no minor who was
under 17 years of age at the time of the alleged offense may be prosecuted under the
criminal laws of this State." 705 ILCS 405/5-120 (West 2006).
Defendant was transferred from the juvenile division of the circuit court to the criminal division
as a result of section 5-130, the automatic transfer provision. 705 ILCS 405/5-130 (West 2006).
Section 5-130 states:
"(1)(a) The definition of delinquent minor under Section 5–120 of this Article shall
not apply to any minor who at the time of an offense was at least 15 years of age and who
is charged with: *** (iii) aggravated battery with a firearm where the minor personally
discharged a firearm as defined in Section 2-15.5 of the Criminal Code of 1961 ***.
These charges and all other charges arising out of the same incident shall be
prosecuted under the criminal laws of this State.
***
(c)(i) If after trial or plea the minor is convicted of any offense covered by
paragraph (a) of this subsection (1), then, in sentencing the minor, the court shall have
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No. 1-12-2451
available any or all dispositions prescribed for that offense under Chapter V of the
Unified Code of Corrections." 705 ILCS 405/5-130 (West 2006).
Accordingly, all charges specified in subsection (1)(a) as well as charges arising out of the same
incident must be criminally prosecuted, rather than decided in juvenile proceedings. People v.
King, 241 Ill. 2d 374, 384 (2011). The charging instrument determines whether the minor has a
right to be tried in juvenile court. Id. at 386. Furthermore, all offenses covered by subsection
(1)(a), including those not specifically listed, are subject to adult sentencing. Id. at 385-87.
¶ 64 Here, defendant was charged with aggravated battery with a firearm in which he
personally discharged a firearm, an offense specified in subsection (1)(a). In addition, that
subsection also covered attempted first-degree murder because it arose from the same incident.
As a result, defendant was required to be criminally prosecuted for both aggravated battery with
a firearm and attempted first-degree murder. Because the trial court convicted defendant of
attempted murder, an offense covered by subsection (1)(a), the court was required to sentence
defendant under the Unified Code of Corrections (Unified Code) (730 ILCS 5/1-1-1 et seq.
(West 2006)).
¶ 65 Attempted first-degree murder is a Class X offense. 720 ILCS 5/8-4(c) (West 2006). In
addition, the Unified Code provides that "except as otherwise provided in the statute defining the
offense, for a Class X felony, the sentence shall be not less than 6 years and not more than 30
years." 730 ILCS 5/5-8-1(a)(3) (West 2006). As stated, the attempt statute provides that "the
sentence for attempt to commit first degree murder is the sentence for a Class X felony, except
that *** an attempt to commit first degree murder during which the person personally discharged
a firearm is a Class X felony for which 20 years shall be added to the term of imprisonment
imposed by the court." 720 ILCS 5/8-4(c)(1)(C) (West 2006). Thus, the minimum sentence for
30
No. 1-12-2451
each count was 26 years in prison. Furthermore, these prison terms were required to be served
consecutively. 730 ILCS 5/5-8-4(a)(i) (West 2006) ("The court shall impose consecutive
sentences if: (i) one of the offenses for which defendant was convicted was first degree murder
or a Class X or Class 1 felony and the defendant inflicted severe bodily injury ***.").
Accordingly, the combined effect of the automatic transfer statute and sentencing statutes is that
the trial court had no discretion to sentence defendant to anything less than 52 years in prison for
his attempted murder convictions.
¶ 66 With that said, 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.
Available credit may substantially reduce a defendant's stay in prison. In addition, our supreme
court in Patterson considered the potential credit available to the defendant. Patterson, 2014 IL
115102, ¶ 108. In furtherance of our inquiry, we asked the parties to submit supplemental
briefing regarding the age at which defendant may be released from prison considering available
sentencing credit. See 730 ILCS 5/3-6-3 (West 2006); 730 ILCS 5/5-8-7(b) (West 2006). While
the parties' means of calculating defendant's potential release date differ somewhat, they contend
he could be released at age 59 or 60. In addition, the Illinois Department of Corrections' (IDOC)
website lists defendant's projected parole date as February 28, 2052, based on both the
convictions before us as well as defendant's possession of a controlled substance and aggravated
battery convictions. See People v. Sanchez, 404 Ill. App. 3d 15, 17 (2010) (finding that this court
can take judicial notice of the IDOC's website). 4 On that date, defendant will be 60 years old.
Furthermore, defendant alleged in the trial court that his average life expectancy was 67.8 years.
Accordingly, it appears that defendant can, and likely will, spend the last several years of life
4
We note that the IDOC mistakenly indicates that defendant was born in 1990 rather than 1991.
31
No. 1-12-2451
outside of prison, unless of course, he commits additional offenses that negate that possibility or
otherwise jeopardizes his sentencing credit.
¶ 67 Strictly speaking, this particular term of years, as applied to this defendant, does not
constitute a natural life sentence without the possibility of parole. Defendant conceded as much
during oral argument in this case. Although defendant's years in society will be precious few, the
United States Supreme Court has drawn the eighth amendment line at life without the possibility
of parole and we cannot cross that line. Defendant cannot demonstrate that as applied to him,
Illinois' transfer and sentencing scheme violates the eighth amendment.
¶ 68 3. The Proportionate Penalties Clause
¶ 69 With that said, we agree with defendant that the statutory scheme is unconstitutional
under the Illinois Constitution of 1970, as applied to defendant, in that his sentence shocks the
moral sense of the community. Our constitution states 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. To succeed on a proportionate penalties claim,
the defendant must demonstrate either that the penalty is degrading, cruel "or so wholly
disproportionate to the offense that it shocks the moral sense of the community" or, that another
offense containing the same elements has a different penalty. People v. Klepper, 234 Ill. 2d 337,
348-49 (2009). In addition, the second clause was added to section 11 by the 1970 constitution.
People v. Clemons, 2012 IL 107821, ¶ 39. "[T]he framers intended, with this additional
language, to provide a limitation on penalties beyond those afforded by the eighth amendment."
Id. Based on this additional language, as well as the overall difference in wording between
section 11 and the eighth amendment, our supreme court has found it is inaccurate to say that
these two constitutional provisions are synonymous, although the relationship between them is
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No. 1-12-2451
certainly unclear. Id. ¶¶ 36-37. Contrary to the State's assertion at oral argument, Clemons did
not limit its recognition that these constitutional provisions differ to alleged proportionate
penalties violations where offenses with identical elements have different penalties. Accordingly,
we reject the State's assertion that whether a sentence is disproportionate in that it shocks the
moral sense of the community must be determined in lockstep with the eighth amendment.
¶ 70 Our supreme court's decision in Patterson does not alter our determination. In addressing
the defendant's facial challenge to the transfer statute under the eighth amendment, our supreme
court found the defendant's challenge failed because the transfer statute did not itself impose
actual punishment, as required to mount a successful eighth amendment challenge. Patterson,
2014 IL 115102, ¶ 106. The court went on to say that "[b]ecause the Illinois proportionate
penalties clause is co-extensive with the eighth amendment's cruel and unusual punishment
clause (In re Rodney H., 223 Ill. 2d 510, 518 (2006)), we also reject defendant's challenge under
our state constitution." (Emphasis added.) Id. We do not believe the court intended to depart
from its prior statements in Clemons; rather, it appears the court meant only that like the eighth
amendment, the proportionate penalties clause does not apply unless a penalty has been imposed.
See People v. Boeckmann, 238 Ill. 2d 1, 16-17 (2010) (finding that the eighth amendment and the
proportionate penalties clause are "coextensive" in that both require the government to inflict
punishment); People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 206-07 (2009) (same); In re
Rodney H., 223 Ill. 2d at 518 (same). Consistent with that reading, Patterson proceeded to
consider defendant's argument that the transfer statute in conjunction with the sentencing
statutes, undoubtedly amounting to a penalty, was unconstitutional as applied. Because the
eighth amendment is not synonymous with the proportionate penalties clause, we address
defendant's argument under the latter provision.
33
No. 1-12-2451
¶ 71 The State asserted at oral argument that we must focus on defendant's conduct and
disregard his personal characteristics in determining whether his sentence shocks the moral sense
of the community. Specifically, the State argues that the "best" example of this principle is
Harmelin v. Michigan, 501 U.S. 957 (1991). First, we note that the United States Supreme Court
was not concerned with Illinois' proportionate penalties clause, and thus, Harmelin does not
control the issue before us. Id. In addition, Harmelin acknowledged cases referring to sentences
that "shock public sentiment" (internal quotation marks omitted) but did not apply such
terminology to the facts before it, upholding the adult defendant's sentence on a different basis.
Id. at 985. In addition, the dissent considered the defendant's conduct but did not specify that a
defendant's personal characteristics are irrelevant. Harmelin, 501 U.S. at 1021 (White, J.,
dissenting, joined by Blackmun and Stevens, J.J.). Instead, the dissent, which found an eighth
amendment violation occurred, considered that the defendant was a first-time offender, which
has as much to do with defendant's characteristics as his conduct. Id. at 1026. The State's best
example falls short of a compelling argument. Even assuming that eighth amendment precedent
is relevant to the State's contention, the Roper, Graham and Miller line of case law focused
extensively on defendants' characteristics, i.e., their status as juveniles and resulting attributes.
¶ 72 Moreover, the proportionate penalties clause demands consideration of the defendant's
character by sentencing a defendant with the objective of restoring the defendant to useful
citizenship, an objective that is much broader than defendant's past conduct in committing the
offense. Although the seriousness of a defendant's conduct may in many cases outweigh
mitigating factors regarding a particular defendant, it does not follow that a defendant's personal
characteristics are irrelevant. Furthermore, we find our supreme court's decision in People v.
Miller, 202 Ill. 2d 328 (2002) (Leon Miller) suggests that a defendant's conduct is not the sole
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consideration. Id. at 340-42 (observing that the statutory scheme did not permit consideration of
the defendant's age and his "individual level of culpability," and that the natural life sentence
imposed shocked the conscience where the offender was 15 years old, had one minute to
contemplate his decision and was only a lookout). While the facts of this case are not as
compelling as those presented in Leon Miller, we nonetheless find that case supports an inquiry
into both defendant's conduct and defendant himself.
¶ 73 Defendant's penalty in this case is so wholly disproportionate that it shocks the moral
sense of the community. To be sure, this was a serious offense. As the trial court found, "it was
nothing but an ambush." In addition, Smith's injuries were severe. Despite that, numerous factors
diminish the justification for a 52-year prison term. Assuming that defendant knew exactly what
was going to happen at the gas station, the record does not indicate that the incident was planned
long before it occurred; rather, it appears to have resulted from rash decision making. The record
also shows that as a juvenile with mental illness, defendant was prone to impulsive behavior. In
addition, defendant may very well have been motivated by a desire to impress his older brother.
According to Lerner's pretrial report, defendant's mother said defendant was a follower.
Although defendant was fortunate in having bad aim, it is also true that he personally did
relatively minimal damage.
¶ 74 Furthermore, we cannot ignore evidence regarding defendant's mental state at the time of
the offense. While mental fitness for trial differs from mental fitness to function in the world, we
find it meaningful that defendant had been declared unfit to stand trial before this offense
occurred. He was clearly not at his peak mental efficiency when the shooting occurred. As the
trial court found, our system failed defendant, and after the State dropped charges against him in
the Ryan Harris case, defendant's mental health issues were not appropriately addressed. In
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addition, defendant's impaired ability to process information may have affected his judgment.
These factors diminish both defendant's culpability and the need for retribution. Furthermore, the
record suggests that defendant's mental health has improved in the more recent past, at least to
some degree. Thus, defendant may yet be rehabilitated and restored to useful citizenship. Cf.
People v. Harlow, 246 Ill. App. 3d 196, 199 (1993) (observing that a sentence is proportional if it
correlates with the seriousness of the offense and adequately considers the defendant's
rehabilitative potential). This juvenile's 52-year sentence, however, seems more consistent with
eliminating his utility as a citizen.
¶ 75 The State correctly observes that the trial court considered defendant's youth and mental
disorders. The sentencing scheme, however, did not permit the court to give those factors
appropriate weight. The court's choice was to see that defendant remain in prison for life or
spend only the last few years of his life outside the prison walls, all for a crime that he committed
at age 15, while his mental health was questionable at best, when it could not be said that he was
irredeemable, and for a crime in which no one died. We also note that codefendant apparently
pled guilty and was sentenced to 31 years in prison. Cf. People v. Reckers, 251 Ill. App. 3d 790,
796 (1993) (finding that a defendant who has proceeded to trial cannot compare his sentence to
sentences imposed on defendants who pled guilty).
¶ 76 As the State concedes, speculation is not required to form the opinion that Judge Flaherty
would have imposed a shorter sentence if given the statutory license to do so. Following
testimony at the sentencing hearing, the court immediately asked the ASA to identify the
minimum permissible sentence. Judge Flaherty also stated, it "doesn't matter what I think is
appropriate, what I don't think is appropriate. They took that out of my hands a long time ago."
Additionally, we find it unsettling that in sentencing a juvenile, the trial court's discretion was
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frustrated by the legislature's decision to impose a mandatory firearm enhancement more than
three times the length of defendant's attempted murder sentence. We are not the first to express
concern regarding the impact of mandatory enhancements on juvenile defendants. See also
Cavazos, 2015 IL App (2d) 120171, ¶ 102 (noting that the mandatory firearm enhancement was
twice the underlying sentence). While the legislature's discretion to prescribe penalties includes
the power to prescribe mandatory sentences that restrict the judiciary's own discretion (Leon
Miller, 202 Ill. 2d at 336), the legislature's discretion is limited by our constitution. Under these
specific circumstances, defendant's sentence shocks the conscience and cannot pass
constitutional muster.
¶ 77 Having determined that as applied, the automatic transfer statute in conjunction with the
sentencing scheme led to a sentence that violates the proportionate penalties clause, we now
determine what remedy is appropriate. Defendant asks that we reverse and remand this case for
the trial court to determine, pursuant to the Juvenile Court Act, whether defendant should be
sentenced as an adult. Essentially, he asks that we not give effect to the automatic transfer
statute. Defendant's proposed remedy curiously attacks one of several statutes that led to his
sentence. The State has not provided a proposed remedy, staunchly adhering to its position that
defendant's sentence is constitutionally sound.
¶ 78 We find it more appropriate to modify application of our sentencing statutes, as the
proportionate penalties clause focuses on the penalty. Although the legislature's mandate of 52
years is disproportionately long here, it does not follow that the legislature could require nothing
more onerous than defendant's release at age 21, as defendant's conduct was serious. We are
sympathetic to the fact that defendant may have been released at age 21 had he committed the
offense just months earlier, at age 14, rather than one month past his fifteenth birthday. In the
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context of the proportionate penalties clause, however, we consider the propriety of defendant's
penalty, not whether this seemingly arbitrary distinction is reasonable. In addition, the trial
court's discretion to impose an appropriate sentence was most defeated by the mandatory
sentencing enhancement. At oral argument, defense counsel conceded that eliminating the
mandatory firearm enhancement would alleviate this constitutional defect. Accordingly, in the
event that the trial court on remand determines that defendant was fit to stand trial, we direct the
trial court to impose, on both attempted murder counts, any appropriate Class X sentence under
the Unified Code, without regard to the mandatory enhancement. If the trial court instead
determines that a new trial is warranted, our decision should guide sentencing in the event that
defendant is convicted once more. In light of our determination, we need not consider
defendant's remaining contentions.
¶ 79 III. CONCLUSION
¶ 80 In conclusion, the particular stipulations entered into at defendant's restoration fitness
hearing were not inappropriately conclusive, but they did raise questions that could not
adequately be resolved on the stipulations alone. Accordingly, we reverse and remand for a
retroactive fitness hearing. If the trial court finds that defendant was unfit at the time of his trial
or that the evidence is inconclusive, he is entitled to a new trial. If the court is able to determine
that defendant was fit at his trial, the court will affirm defendant's conviction and proceed to a
new sentencing hearing, at which the court will disregard the statutorily mandated firearm
enhancement. We join our supreme court and colleagues in the appellate court in urging the
legislature to expeditiously address the inability of our present statutory scheme to provide
allowances for the special considerations that youth warrants. We are confident that as the state
which created this country's first juvenile court (Willis, 2013 IL App (1st) 110233, ¶ 39), our
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legislature is capable of improving our current laws. Until then, we respect our legislature's prior
determinations regarding what penalties are appropriate and how the trial courts' sentencing
discretion should be limited, so long as those penalties do not violate constitutional protections.
¶ 81 For the foregoing reasons, we reverse and remand for further proceedings consistent with
this opinion.
¶ 82 Reversed and remanded.
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