People v. Pace , 2015 IL App (1st) 110415 ( 2015 )

Illinois Official Reports
Appellate Court
People v. Pace, 2015 IL App (1st) 110415
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MICHAEL PACE, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-11-0415
Filed September 11, 2015
Modified upon
denial of rehearing October 16, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-12118; the
Review Hon. Nicholas Ford, Judge, presiding.
Judgment Affirmed in part, vacated in part, and remanded with instructions;
mittimus corrected.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Yasaman Hannah Navai,
Appeal all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
William Toffenetti, and Mary P. Needham, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Cunningham and Harris concurred in the judgment and
opinion.
OPINION
¶1 Defendant Michael Pace appeals the trial court’s denial of his motions to vacate his guilty
plea and reconsider sentence. On appeal, he contends that the trial court committed reversible
error by (1) considering its personal beliefs and private investigations during the sentencing
hearing; (2) exhibiting bias against him; (3) improperly considering his declination to speak
in allocution; (4) considering improper evidence; (5) failing to consider mitigating evidence;
(6) improperly questioning a defense witness during a hearing on his motion to vacate his
plea; and (7) failing to properly admonish him pursuant to Illinois Supreme Court Rule
402(a) (eff. July 1, 1997). In addition, he contends that the automatic transfer provision of the
Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-130 (West 2006)) and the
application of the 25-years-to-life mandatory firearm enhancement and consecutive
sentencing statute violate the eighth amendment to the United States Constitution (U.S.
Const., amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. I, § 11). We affirm in part, reverse in part, vacate defendant’s sentence and
remand with instructions.
¶2 BACKGROUND
¶3 On June 15, 2007, defendant was charged in a 29-count indictment with first degree
murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2006)), attempted first degree murder (720 ILCS
5/8-4, 9-1 (West 2006)), and aggravated battery with a firearm (720 ILCS 5/12-4.2 (West
2006)). Defendant was 16 years old at the time he committed the offense. Due to the nature
of the offenses, his case was transferred to adult criminal court pursuant to the automatic
transfer provision of the Juvenile Court Act. 705 ILCS 405/5-130(1)(a) (West 2006). On
June 19, 2009, defendant entered into a blind guilty plea whereby he plead guilty to one
count of first degree murder, one count of first degree murder in which he personally
discharged a firearm that proximately caused death, and two counts of aggravated battery
with a firearm.
¶4 After defendant announced his intent to enter a guilty plea, the trial court furnished him
with several admonishments. The court began by admonishing defendant about the
sentencing ranges applicable to him. The court specifically informed defendant that the
sentencing range for first degree murder was 20 to 60 years’ imprisonment, that the
sentencing range “[o]n the charge of Personally Discharging a Firearm Which Proximately
Caused the Death of Blair Holt” was 25 years to life in prison, and that the sentencing range
for aggravated battery with a firearm was 6 to 30 years’ imprisonment. After informing the
defendant of the range applicable to each offense, the court asked defendant if he understood.
Defendant answered “yes” each time.
¶5 Next, the court admonished defendant about the nature of a blind guilty plea. The court
explained that there was no agreement between defendant and the State or the court regarding
what sentence would be imposed. The court asked defendant if he understood and still
wanted to plead guilty and defendant answered affirmatively.
¶6 The court then admonished defendant about the nature of the rights he would be
relinquishing by pleading guilty. The court explained that defendant had a right to plead not
guilty and force the State to prove him guilty beyond a reasonable doubt. The court then
informed defendant that he had the right to a jury trial. The court explained what a jury was,
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how it functioned, and that a jury’s verdict must be unanimous. After each of these
admonishments, defendant indicated that he understood. Defendant then signed a jury waiver
form, at which point the court stated “[b]y signing that you are indicating to me in writing
that you understand that you’re waiving your absolute right to trial by jury, do you
understand that?” Defendant replied “yeah.”
¶7 Next, the court informed defendant that he had a right to a bench trial, and it explained to
defendant what a bench trial was. The court also told defendant that by pleading guilty he
was giving up his right to confront witnesses against him and subpoena witnesses to testify
on his behalf. After each of these admonishments, defendant indicated that he understood.
¶8 The court then inquired into the voluntariness of defendant’s plea by asking whether
defendant’s decision to plead guilty was made of his own free will and whether the plea had
been induced by any threats, force or promises. Defendant answered “yes” and “no,”
respectively.
¶9 The State then presented the following factual basis for defendant’s plea: Around 3 p.m.
on May 10, 2007, a Chicago Transit Authority (CTA) bus stopped at Julian High School
(Julian). Several students who had been released from Julian for the day boarded the bus,
including Blair Holt, Christine Coley, and Megan James. The bus began travelling west on
103rd Street toward Halsted Street.
¶ 10 While the bus traveled toward Halsted Street, defendant and some other friends were at
Mt. Vernon Park near 105th Street and Aberdeen Street. At that time, they formed a plan to
“go get” rival gang members whom they believed were travelling on the bus. One of
defendant’s friends, Kevin Jones, gave defendant a gun and a hoodie. The group then walked
to a bus stop at 103rd Street and Halsted Street and waited outside a currency exchange for
the bus to arrive.
¶ 11 When the bus approached, defendant peered inside and then ran onto the bus at the front
entrance. Standing by the driver’s area, defendant took out the handgun and fired several
shots into the crowd of people on the bus. Several people were struck by defendant’s gunfire,
including Coley, who suffered gunshot wounds to her chest and arm; James, who suffered a
gunshot wound to her knee; and Holt, who suffered a gunshot wound to his abdomen. Coley
and James survived, but Holt died from his wounds later that day.
¶ 12 After firing the shots, defendant fled to the area around 105th Street and Aberdeen Street.
There, he told a person named Jimmie Malone that he had “just laid down the murder game.”
Defendant then left the area.
¶ 13 Surveillance video from outside the 103rd Street currency exchange showed defendant
waiting for the bus and pulling the gun out. Surveillance video from onboard the bus showed
defendant entering the bus, firing the gun, and then exiting. Police captured still images from
the bus’s surveillance video. A police officer took one of the images to Julian, where an
attendance officer identified defendant. Defendant turned himself in on May 12, 2007.
¶ 14 After finding that defendant’s plea was supported by a factual basis, the court found
defendant guilty and entered judgment against him. The court then admonished defendant for
a second time regarding the sentencing ranges he was facing and the fact that there was no
agreement about what sentence he would receive. Defendant again indicated that he
understood the admonishments.
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¶ 15 The court conducted a sentencing hearing on July 20, 2009. In aggravation, the State
presented testimony from Detective Neil Maas, Coley, James, and victim impact statements
from Holt’s parents, Ronald Holt and Annette Nance Holt.
¶ 16 In mitigation, the defense presented testimony from Dr. Robert Hanlon, whom the parties
stipulated was an expert in neuropsychology. Dr. Hanlon testified that he met with defendant
in May 2008 in order to conduct a neuropsychological evaluation. The evaluation revealed
that defendant had an IQ of 77, which according to Dr. Hanlon was in “the borderline range
of intelligence.” He explained that meant defendant was “above the mental retardation range,
but below the low average range.” The evaluation also showed that defendant had a
“nonverbal learning disorder.” Dr. Hanlon explained that a nonverbal learning disorder
“involves impaired perceptual abilities and deficient spatial processing[ ]” and can lead to
“difficulty in perceiving and interpreting gestures, nonverbal communication, [and] facial
expressions.” He noted that such disorders have “a significant academic impact on school
performance” which leads to difficulty “forming and understanding *** the abstract meaning
of things and drawing inferences.” He also noted that individuals with such disorders
experience emotional problems, stating “many of these kids generally are frustrated, and they
are often angry and often depressed. They tend to act out. They’re compulsive, and they have
poor social judgment.” Dr. Hanlon believed that defendant’s learning disability “very likely”
affects his judgment and socialization.
¶ 17 On cross-examination, Dr. Hanlon testified that he believed defendant knows right from
wrong “in many cases.” He also conceded that he stated in his report that defendant’s
“thought processes were logical, linear, and goal directed” and that he did not find evidence
that defendant had a “thought disorder or psychotic thought content or severe mood disorder
or marked anxiety.”
¶ 18 After the State finished its cross-examination, the following colloquy took place between
the court and Dr. Hanlon:
“THE COURT: Doctor, you talked a little bit about socialization in your
evaluation of Mr. Pace; is that correct?
THE WITNESS: Yes.
THE COURT: Are people who suffer from nonverbal learning disorders such as
his often isolated within communities?
THE WITNESS: Often ***. Particularly, if there are limited socio-economic
advances for such students, they are often isolated.
THE COURT: Were you aware from your evaluation of Mr. Pace that he was a
self-admitted member of a street gang?
THE WITNESS: I’m aware that he had some gang affiliation.
THE COURT: Wouldn’t his social interaction and general behavior during the
course of this incident in some ways detract from your assessment of him as having a
disability that would prevent him from socializing?
In other words, communal acts, long term membership in a gang, don’t these
things sort of run in the face of your evaluation of him having an issue regarding his
ability to socialize?
THE WITNESS: Well, I think *** as you’re describing it, we’re getting at a
difference between a disability and an inability. I’m not saying that he had the total
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lack of ability for any of the things I have discussed. I’m saying he’s just not
functioning at a normal level in most of those demands.
THE COURT: So would you say he would have exceeded his disability in joining
a gang and being involved in these communal efforts?
THE WITNESS: Could you re-ask the question?
THE COURT: Would you say he exceeded his ability when he joined a gang and
succeeded in interacting with his associates here during the course of this event?
You have described him as intellectually limited; is that correct?
THE WITNESS: Correct.
THE COURT: You said that he had a nonverbal language disorder that would
have had definite reflection upon his ability to socialize; is that correct?
THE WITNESS: It would be, yes.
THE COURT: All right. Now knowing that he was a member of a gang over time
and knowing also that he engaged in a complicated effort to execute a person on a bus
in the City of Chicago, would these things be inconsistent with the level of disability
that you’re indicating that he possesses?
THE WITNESS: Not inconsistent. I think he probably joined a gang because of
his limitations, and he found some support and admiration by that gang affiliation,
and I think that commonly occurs.
THE COURT: Can you think of any other reasons why someone would join a
gang other than the reason you just gave?
THE WITNESS: Money.
THE COURT: Any questions based on that, Miss Danahy or Mr. Mahoney?
MR. MAHONEY [Assistant State’s Attorney]: No.
MS. DANAHY [Assistant Public Defender]: No.
THE COURT: Thank you, Doctor.”
¶ 19 After the live testimony concluded, the court offered defendant the opportunity to speak
in allocution. Defendant declined. The parties then offered arguments in aggravation and
mitigation. The State, emphasizing the facts of the crime and noting that this case was “every
parents’ nightmare,” asked the court to impose a lengthy sentence.
¶ 20 In mitigation, defense counsel explained that defendant’s intended victim was a rival
gang member named Jerome Kraft who was riding the bus that defendant boarded.
According to defense counsel, defendant and Kraft were involved in an ongoing feud in
which Kraft had tried to shoot defendant. Defense counsel argued that “in [defendant’s] 16
year old, 77 I.Q. mind, [Kraft] was coming after him. [Kraft] was on the bus by the back door
making gestures at Michael.” Defense counsel then told the court that defendant had
expressed remorse to her. Defense counsel emphasized that defendant’s youth was a
mitigating factor, and also pointed out that defendant had a learning disability, history of
substance abuse, difficult upbringing, and no criminal record.
¶ 21 The trial court then announced its sentence. The court began by explaining that it would
consider: (1) the facts of the case; (2) the presentence investigation; (3) the evidence in
aggravation and mitigation; (4) the statutory factors in aggravation and mitigation; (5) the
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financial impact of incarceration; (6) sentencing alternatives; (7) the victim impact
statements; and (8) “the defendant’s right of allocution, which he did not avail himself of.”
¶ 22 The trial court then offered the following remarks:
“I, like most of you, wake up each morning and walk out and take the paper off
my steps. I, like most of you, have been saddened by what’s going on in our city. A
lot of mornings I wake up and walk my daughter to a public school in this city, not, of
course, over the course of the summer.
So when I talk about the affects that this crime or that my sentence will have on
us as a society, I’m talking from my own personal experience, which I will bring to
bear on what I think is the appropriate sentence in this case. And that is experience
which has had a shadow cast over it like a lot of you here today. There is, simply put,
too much gang violence on our streets.
These facts, the facts of this case, are the most unimaginable that a parent can
face. I know that on the date that Blair Holt was killed, his parents kissed him
good-bye and told him they loved him. I know that all of the parents that put their
children on that bus or placed their children in Julian High School had a right to know
that their children would be protected, that their children would be safe.
I know for a fact that even in the most economically challenged corners of our
city, that only one or two percent of the population make the lives of those there
miserable by their conduct. That’s in the worst, unimaginable neighborhoods within
the City of Chicago. Only one or two percent of the population is involved in making
our lives worse. They are the headlines that greet me each morning.
There are many, many people in public housing in economic circumstances with
difficult economic and educational backgrounds that never cross the threshold into
the building here at 26th and California. These are facts I know and facts that I will
consider in conjunction with sentencing in this circumstance.”
¶ 23 The court then commented on the surveillance footage showing defendant’s crime,
stating:
“But when those children said good-bye to their families–and as I watched the
video here, as I imagined the thoughts and prayers of the parents of these children on
that bus and watched the man before me here today mount the steps to that bus, buses
that I have mounted my whole life, buses that I have mounted with my daughter, I
imagined the horror that must have confronted them, and it is extremely apparent
from looking at the video of the carnage that happened on Bus 103 leaving Julian
High School.”
¶ 24 The court then discussed what it hoped defendant’s sentence would accomplish, stating:
“It is unconscionable and it has no quarter in our city. And if in making my
sentence today I can do one thing, it would be the hope that all of us look out our
windows at the people around us and ask ourselves whether or not we’ve done
everything we can to make it better, whether or not we’ve been vigilant with our sons
and daughters to make sure that they are not involved in any illegal misdeeds out
there, to make sure that they are not members of street gangs like this man, to make
sure that they know that the people out there that are involved in these sorts of things
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like Mr. Pace know that they’re being watched by all of us, the other 99 percent.
Because they are.
And a failure to act and a failure to be involved in the lives of your children and a
failure to not intervene and act out and point out to the police and to authorities what
you see happening and when you see something criminally happening is a failure that
we all have to live with. And it is one that I’m hoping my sentence here today will
remind everyone is the duty of every citizen, to act and to act in a way that will help
stop and curb what’s going on out there.”
¶ 25 The court then commented on the blamelessness of defendant’s victims, stating:
“[I]n this circumstance, I don’t have some fellow gang member standing across
the street that’s the victim in this case. I don’t have that. I don’t–none of the three
victims in this circumstance were in any way complicit in what happened to them.
***
*** The Holts, whose Victim Impact Statement I will consider during the course
of my statement, and their son and the two young women that testified here moments
ago did nothing to facilitate or any way contribute to what happened to them, not one
thing.
And the parents, and particularly the Holts and also to the other parents that had to
know that that horror was inflicted upon them knowing that they have done
everything correctly as best they could to ensure the safety of their children is
revolting. In every way.
As I said, they didn’t do anything to deserve the outcome in this circumstance.
Blair Holt didn’t do anything to deserve the outcome in this circumstance. He was
just somebody that was riding a bus.”
¶ 26 The court then discussed Dr. Hanlon’s testimony, stating:
“I have heard factors in mitigation in this case. I heard from Dr. Hanlon. And I
have heard from doctors like Dr. Hanlon before. And what *** my experience of their
testimony, and I will consider it, are that in some ways Mr. Pace can find refuge in
education that wasn’t going well. It seems–at least it’s the doctor’s opinion that he
suffered from a lower I.Q. than most and that he didn’t do well in school.
I don’t think there’s anything Mr. Pace’s family could have done to prevent that.
But here again, this isn’t an uncommon disability. Difficulties in school aren’t
uncommon either. Children in our schools right now and even those that go on to
attend college have confronted learning disabilities in early age. I’m not going to
paint them with the brush that the doctor would.
And I have to say as a matter of fact that I’m weary tired of watching doctors,
psychologists walk into my courtroom and somehow try to provide some shade for
the conduct of a person like Michael Pace. Because it’s a disservice to all the people
they see during the course of their careers that don’t do it.
You think that he hasn’t had the same diagnosis for some kid from Deerfield or
some other child that never did anything wrong in their life that grew up in
Englewood? And yet, somehow, I’m supposed to sit here and think that that is some
reason, that is some mitigation that somehow takes the terrible stain of his conduct
away from him. And that is unpalatable in the extreme.”
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¶ 27 The court then considered defendant’s presentence investigation (PSI). The PSI indicated
that defendant’s mother and father never married and that his father was incarcerated. In
addition, the court noted that according to the PSI, defendant had the words “I’m a beast” and
“I’m a dog” tattooed on right and left hands, respectively. The court stated that it doubted
that those tattoos “escaped any parent’s eyes.” The court also noted that the PSI indicated
that defendant said that he was a member of the Gangster Disciple street gang “but grew up
under it” and that “[i]t was really no gang to me. It was more of a movement.” In response to
those statements, the court said that defendant seemed to be “exud[ing] a certain degree of
pride, which leads me back down the road of questioning how closely he was ever watched.”
The court then found that defendant was a member of a gang, stating:
“What I see in those tattoos and what I’m hoping everybody else sees is that too
many of us are dedicated to violence, too many of us are dedicated to revenge, too
many of us are dedicated to solving problems with a handgun rather than the way that
the rest of us do it. That one percent haunts us like a bad dream every day. They do it
on the steps of churches and they do it on buses leaving Chicago public schools.”
¶ 28 The court then said the following:
“It will be my job to remove one small part of that one percent, but there are many
more of them out there, and if anyone is looking through their paper, like I do every
morning, tomorrow morning I hope they read this and understand that all of us have
to be vigilant and understand that every child, no matter what community they come
from, is really all of our children, whether they’re Chicago Public School students,
whether they attend Leo High School or Loyola Academy, whether they attend Julian
or Lane or Whitney. All of us have to understand that we can only be as strong as
protecting them shows, and that responsibility begins with looking out your window
and thinking about the people around you.”
¶ 29 The court then referred to Holt and his family, as well as Coley, the bus driver, the police
detectives, physical therapists and hospital staff who treated Coley and James, the State’s
Attorneys, and public defenders as members of the “99 percent” and “heroes.” The court
stated, however, that when it looked at defendant, it did not see “a victim, some person that
was in any way trying to defend himself.” Instead, according to the court, defendant was “in
that one percent, that makes a life for the rest of us a living hell.” The court declared that
defendant was “not going to define the city that I’m from. The Holts, their son, the other
children on that bus, they define who I am.” Continuing on, the court stated:
“And there aren’t enough bullets being made to silence the voices. No amount of
guns and no amount of young punks and no amount of gang members are ever going
to find enough dark corners and dark alleys to hide in, because there are way, way
more of us than there are of them.”
¶ 30 After finishing its remarks, the court sentenced defendant to consecutive prison terms of
35 years for first degree murder, with an additional 25 years added due to the mandatory
firearm enhancement, and two 20 year prison terms for each aggravated battery with a
firearm, resulting in an aggregate sentence of 100 years’ imprisonment. In its closing
remarks, the court stated “it is my hope that this sentence serves two masters. One, that it is
retributive, and, two, that it is a message to those people in those dark alleys *** that people
like you and I outnumber them by thousands and millions.”
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¶ 31 Defendant then filed a motion to reconsider sentence. A hearing on defendant’s motion
was held on July 21, 2009. At the hearing, the court stated, “I do want to indicate that I felt
there was mitigation here. In my finding yesterday I didn’t say that there wasn’t.” The court
explained that it took into account the fact that defendant pled guilty, but that it also
considered the fact that defendant did not speak in allocution or express remorse. In
somewhat contradictory fashion, however, the court then stated that defendant’s decision to
remain silent during the sentencing hearing did not affect his sentence. Instead, the court
explained that “[w]hat I heard, what happened and the other statutory and non-statutory
factors both in aggravation and mitigation are what made his bed. Elocution or no elocution,
he was going to be in the area in which he ends up finding himself.” At the conclusion of the
hearing, the court denied defendant’s motion to reconsider sentence.
¶ 32 On August 6, 2009, defendant filed a notice of appeal. On August 17, defendant filed a
pro se motion to vacate his guilty plea. A public defender was appointed to represent
defendant and withdrew defendant’s notice of appeal. On May 6, 2010, defendant, through
counsel, filed an amended motion to vacate his guilty plea arguing that his guilty plea was
not knowing and voluntary because (1) his low IQ precluded him from understanding the
court’s admonishments and (2) the admonishments he received were legally deficient.
¶ 33 The court held a hearing on defendant’s motion on January 6, 2011. At the hearing,
defendant presented testimony from Dr. Linda Grossman, whom the parties stipulated was an
expert in forensic psychology. Dr. Grossman reviewed Dr. Hanlon’s notes and report, the
raw data his report was based on, his testimony, as well as defendant’s educational records
and a transcript of the admonishments which the trial court gave to defendant before it
accepted his guilty plea. In reviewing these materials, Dr. Grossman observed that defendant
had difficulty learning and suffered from developmental disabilities. She also confirmed that
Dr. Hanlon correctly scored defendant’s IQ at 77, and she learned that defendant had less
than a fifth grade ability in verbal capacities “including reading, sentence ***
comprehension, reading comprehension, [and] spelling.”
¶ 34 When asked about “auditory-verbal encoding,” a term which Dr. Hanlon used in his
report, Dr. Grossman explained that it meant “difficulties in abstracting meanings from
words or sentences presented orally.” She explained that the term applied to defendant
because he has “numerous difficulties understanding verbal material” and would have an
easier time understanding information if it were presented to him in written form rather than
verbally. Dr. Grossman then testified that “[t]o a reasonable degree of psychological
certainty, it’s my opinion that Mr. Pace’s intellectual limitations and verbal limitations are
inconsistent with an ability on his part to understand the admonishment as it was given to
him verbally in court.”
¶ 35 On cross-examination, Dr. Grossman admitted that she stated in her report that
defendant’s limitations were inconsistent with his ability to understand the admonishments as
written. She also conceded that reading ability is different than the ability to understand
verbal communication and that someone who cannot read may possibly nonetheless be able
to understand verbal admonitions. She clarified, however, that “the words that were written
but were said to him aloud, exceed his vocabulary by quite a bit.” She also admitted that she
did not personally meet defendant.
¶ 36 On redirect, Dr. Grossman explained that it was not necessary to interview defendant
because she had access to “all of the preceding tests and raw data” that she used to “rescore
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and check for accuracy.” The following colloquy then took place between defense counsel
and Dr. Grossman:
“Q. [DEFENSE COUNSEL]: Now, also, as far as the spoken word, you also
testified on direct about this auditory-verbal encoding, correct?
A. Correct.
Q. Now, exactly what does that mean in regards to a person being able to
comprehend something spoken as opposed to comprehending something as he reads
it?
A. It refers to the inability or impairment of the ability of somebody who abstract
the meaning or synthesize the meaning of words or sentences presented orally or
received auditorily.
Q. So that a person such as Michael, and I want you to be clear to the Court, so a
person such as Michael will have an easier time understanding something if he read it
as opposed to just listening?
A. It’s my opinion that he would.”
Immediately thereafter, the following colloquy took place between the court and Dr.
Grossman:
Q. [THE COURT:] Wouldn’t that be the case for everybody?
A. No, Your Honor, it wouldn’t be the case for everything.
Q. Well, I mean, so you’re telling me if [sic] wouldn’t be the case that everyone
who read something and then heard it aloud wouldn’t benefit from having read it first
or you can even juxtapose the two?
A. That’s not what I’m hearing here.
Q. That’s the question I asked you, though, Doctor, and it’s a pretty simple one–
A. I think the answer would–
Q. –wouldn’t that be the case for everyone?
A. –yes. I think the answer would be yes to that question.
Q. Yes, okay.
Additional question, is this a common practice for you to just come to a legal
conclusion predicated solely on the diagnostic information provided from another
psychologist?
A. I didn’t put it on the diagnostic, I looked at the raw data, and that would be–
Q. So you just looked at somebody else’s scores and you gave–
A. I rescored the test, and reinterpreted them. I found that–
Q. Did you make any inquiry of the woman that represented Mr. Pace about
whether or not she had done any educational work of Mr. Pace prior to the time the
plea was done so that these words when they arose, that you’re saying that he didn’t
understand them, could have been understood?
A. No, sir.
Q. Would you consider that to be inquiry that might have been made?
A. I have never made that type of inquiry before.
Q. Have you testified like this before on other people’s reports?
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A. Yes, I have.
Q. Wouldn’t the most accurate information come from the person that your [sic]
rendering opinion on themselves rather than some static data from another source?
A. That would take into account someone else’s judgment of his abilities?
Q. That’s not the real question. I’m asking, if you’re trying to tell me that you
have an understanding of Mr. Pace’s linguistic abilities and that understanding is
solely predicated on diagnostic material generated by another psychologist, wouldn’t
you want to supplement, I mean, for example, he could have gone through some
organic circumstances after he took the test but before you got him, that would have
meant that he understand even more poorly on the date that he entered the plea. Do
you follow me?
A. Yes.
Q. How long before the plea was the most recent psychological examination?
***
A. The report was in September of ’08, the testing was in May of ’08.
Q. And the plea was when?
MR. LANDRUM [Defense Counsel]: May I, Judge?
THE COURT: Let me finish this out and then everybody who has questions, they
can ask.
THE WITNESS: *** I don’t know the date.
Q. That in and of itself is an important factor, wouldn’t you think, Doctor?
A. I just don’t have access to it right now.
Q. The reason I’m asking you this is because if it was a long period of time in
which somebody would have spoken to him about the possibility of pleading guilty
and what the admonishments would be, that might affect, in real terms, his ability to
understand what was going on, would it not?
A. It might.”
¶ 37 Upon further redirect, Dr. Grossman explained that she based her conclusions on raw
data and that the raw data for defendant “was constant among three different testings taken
over years apart. It was always the same result.”
¶ 38 On recross, Dr. Grossman conceded that Dr. Hanlon’s report stated that defendant’s
verbal IQ was 84, which is “higher than borderline range.” She also conceded that the report
found that defendant’s “definitive verbal formulation and vocabulary were in the mildly
effective range” and his “verbal concept formation and abstraction were in the low average
range.”
¶ 39 The following colloquy then took place between the court and Dr. Grossman:
“Q. [THE COURT:] Well, Hanlon’s reports were, you said when, again, I’m
sorry?
A. [DR. GROSSMAN:] It was issued 9-16-08.
Q. What test or material did you look at that preceded that and by how far did it
precede it?
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A. I saw the material from 2003 on, I believe, but I can figure it out. I saw
documentation from 2003, 2004, 2005, 2007.
Q. What was the source of that documentation?
A. The school records, the disability records, the previous–the IEP records.
Q. And did you reanalyze that data?
A. I did not because all three of the IQ tests were exactly the same, within two
points of each other.
Q. Even on the verbal?
A. Yes, had there been a discrepancy, I would have probably looked more closely.
Q. What was the nature of his basis for receiving Social Security?
A. Disability on the basis of a low IQ and specific learning disability.
***
It was called various things in the records. In Dr. Hanlon’s it was called nonverbal
learning disorder.
Q. Nonverbal?
A. Yes.
Q. What else is it called?
A. Nonspecific learning disorder, there was–it was called various names. But
always there is records since 2003 of a learning disorder for which he received
entitlements and documentation of the same IQ over those years.
Q. And that disability would have been predicated on the opinion of a psychiatrist
or medical doctor?
A. Probably a psychologist, but I don’t know that for sure.
Q. You don’t know?
A. I don’t know that for sure under oath, but it was probably a psychologist.
THE COURT: Anything else?
MS. MAHONEY: No.
THE COURT: Counsel?
MR. LANDRUM: No, Judge.
THE COURT: Thanks, Doctor, have a good day.
THE WITNESS: Thank you.”
¶ 40 After Dr. Grossman’s testimony concluded, the defense rested. The State then presented
testimony from Dr. Stafford Henry, whom the parties stipulated was an expert in forensic
psychiatry. Dr. Henry testified that he was retained by the State to perform a psychiatric
evaluation of defendant and offer opinion regarding defendant’s ability to understand the
consequences of entering into a blind guilty plea in June 2009. To conduct his evaluation, Dr.
Henry reviewed the transcripts of defendant’s plea and sentencing hearings, reports generated
by Dr. Hanlon and Dr. Grossman and their testimony, records from the Chicago police
department and Chicago public schools, and defendant’s PSI. In addition, Dr. Henry also
conducted a three hour face-to-face interview with defendant on September 15, 2010.
¶ 41 The bulk of Dr. Henry’s testimony concerned his interview with defendant, during which
time defendant was asked to summarize or explain the admonishments he received from the
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trial court. The testimony elicited from Dr. Henry by the State on direct examination is
irrelevant to the legal issues raised by defendant in this appeal, although we note that based
in large part on the interview, Dr. Henry concluded “to a reasonable degree of medical and
psychiatric certainty *** that at the time of the June 2009 plea hearing, [defendant]
understood the nature and purpose of the proceedings against him, that [defendant] had a
complete and total comprehension of the terms and conditions of a blind plea and that he was
cognizant of the potential ramifications of entering such a plea.”
¶ 42 On cross-examination, Dr. Henry testified that during the interview, defendant explained
that he understood that the sentencing parameters for the firearm enhancement were
disjunctive, i.e., that the trial court could sentence him to 25 years or life in prison. Dr. Henry
attempted to clarify that his “understanding” of what defendant said was that defendant
understood “that the range was between 25 to life in prison.” He admitted, however, that
defendant’s actual explanation of the admonishment was “I can get 25 years or life.”
¶ 43 On January 20, 2010, the trial court denied defendant’s motion to vacate his plea. On July
22, 2013, this court vacated the trial court’s order denying defendant’s motion to reconsider
sentence because the motion was not accompanied by a certificate of compliance as required
by Illinois Supreme Court Rule 604(d) (eff. Feb. 26, 2013). People v. Pace, No. 1-11-0415
(2013) (unpublished order under Supreme Court Rule 23). Defendant, through counsel, filed
a new motion to reconsider sentence on September 18, 2014, arguing that the 100-year
sentence was improper because the court (1) based its decision on personal observations,
subjective beliefs, outside news reports, and generalized notions about youth violence; (2)
abandoned its role as neutral arbiter by cross-examining Dr. Hanlon; (3) improperly drew an
adverse inference that defendant lacked remorse based on his decision to not speak in
allocution; and (4) failed to give appropriate weight to mitigating factors and defendant’s
rehabilitative potential.
¶ 44 The court held a hearing on defendant’s motion on December 15, 2014. During the
hearing, the court again explained the reasoning behind its sentencing decision, stating:
“[T]he sentence was given to reflect the magnitude of the action he took. And that’s
it. I tried to see my way to hope that he could find some rehabilitation.
But at a 57 year minimum sentence that couldn’t have been a concern of the state
legislature. And it’s appropriate that it wouldn’t be under a crime like this.
This is a brutal offense. It was a brutal offense. And the brutality of it is clear as
day when you look at the video, and when you listen to the young women that were
shot and you watch what defendant did.
I have compassion for his circumstances. He performed poorly in school. I have
compassion for his economic circumstances. There are a thousand young men and
women confronting the same things that he confronted that day and that take a
different path.
And this sentence is for them as much as it is for the people that he struck that
day.”
¶ 45 At the conclusion of the hearing, the court denied defendant’s motion. This appeal
followed.
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¶ 46 ANALYSIS
¶ 47 Defendant presents five arguments on appeal. First, he contends that the trial court erred
during the sentencing hearing by (1) considering its personal beliefs and private
investigations; (2) abandoning its role as neutral arbiter by cross-examining Dr. Hanlon; (3)
punishing the defendant for declining to speak in allocution; and (4) failing to consider
mitigating evidence. Second, he argues that the trial court violated his right to due process by
cross-examining Dr. Grossman during the hearing on his motion to withdraw his guilty plea.
Third, he argues that his guilty plea was not knowing and voluntary because the trial court
(1) did not admonish him about the possibility of consecutive sentencing; (2) allowed him to
plead guilty to two counts of first degree murder; and (3) led him to believe that the
minimum sentence for first degree murder was 20 or 25 years’ imprisonment, when it was
actually 45 years. Fourth, he contends that the automatic transfer provision of the Juvenile
Court Act is unconstitutional. Fifth, he argues that the mandatory firearm enhancement, in
conjunction with mandatory consecutive sentencing statute, as applied to him, violates his
rights under the eighth amendment to the United States Constitution and the proportionate
penalties clause of the Illinois Constitution.
¶ 48 A. Validity of Defendant’s Guilty Plea
¶ 49 We first consider whether the trial court erred by denying defendant’s motion to vacate
his guilty plea. Defendant contends that his plea was not knowing and voluntary because the
trial court: (1) failed to admonish him that he was subject to mandatory consecutive
sentencing which required that he serve a minimum 57-year sentence; (2) permitted him to
plead guilty to two counts of murder when there was only one victim; and (3) admonished
him in a manner which caused him to believe that the minimum sentence he faced for first
degree murder was 20 or 25 years, when the minimum sentence for first degree murder was
in fact 45 years.
¶ 50 The decision to enter a guilty plea is a “ ‘grave and solemn act.’ ” People v. Evans, 174
Ill. 2d 320, 326 (1996) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). “It is not
a ‘temporary and meaningless formality reversible at the defendant’s whim.’ ” (Emphasis in
original.) Id. (quoting United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975)). “A
defendant does not have an absolute right to withdraw his guilty plea ***.” People v.
Manning, 227 Ill. 2d 403, 412 (2008). Instead, leave to withdraw a guilty plea is only granted
when necessary to “correct a manifest injustice under the facts involved” (People v.
Hillenbrand, 121 Ill. 2d 537, 545 (1988)), or where the plea “was not constitutionally
entered” (Manning, 227 Ill. 2d at 412). In Boykin v. Alabama, the United States Supreme
Court held that a court cannot, consistent with due process, accept a guilty plea unless there
has been an affirmative showing that the defendant’s decision to plead guilty was made
“ ‘intelligently and understandingly.’ ” 395 U.S. 238, 242 (1969) (quoting Carnley v.
Cochran, 369 U.S. 506, 516 (1962)); see People v. Shamlodhiya, 2013 IL App (2d) 120065,
¶ 17 (“Due process requires that a guilty plea be knowing and voluntary.”).
¶ 51 In response to Boykin, the Illinois Supreme Court adopted Rule 402. People v. Whitfield,
217 Ill. 2d 177, 188 n.3 (2005); see Ill. S. Ct. R. 402 (eff. July 1, 1997). Rule 402 contains
several admonishments which a trial court must give to a defendant in open court prior to
accepting a guilty plea. The purpose of these admonishments “is to ensure that a defendant
understands his plea, the rights he has waived by pleading guilty and the consequences of his
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action.” People v. Dougherty, 394 Ill. App. 3d 134, 138 (2009). Under Rule 402(a)(2), a trial
court must admonish a defendant about “the minimum and maximum sentence prescribed by
law, including, when applicable, the penalty to which the defendant may be subjected
because of prior convictions or consecutive sentences.” Ill. S. Ct. R. 402(a)(2) (eff. July 1,
1997).
¶ 52 Literal compliance with the Rule 402 admonishments is not necessary to satisfy the
requirements of due process. People v. Burt, 168 Ill. 2d 49, 64 (1995); Dougherty, 394 Ill.
App. 3d at 138. Instead, “substantial compliance” is sufficient. Dougherty, 394 Ill. App. 3d at
138. “ ‘Substantial compliance’ means that although the trial court did not recite to the
defendant, and ask defendant if he understood, all the components of Rule 402(a), the record
nevertheless affirmatively and specifically shows that the defendant understood them.” Id.
¶ 53 Defendant contends that he must prevail if the trial court’s admonishments did not
substantially comply with Rule 402. Citing People v. Kidd, 129 Ill. 2d 432 (1989), defendant
argues that “where *** a court fails to substantially comply with Rule 402, a defendant’s plea
is not knowingly and voluntarily entered and the prejudice is manifest absent such a
showing.”
¶ 54 Defendant is incorrect. Illinois courts have repeatedly held that a defendant must
demonstrate prejudice as a result of an improper Rule 402 admonishment in order to obtain
reversal of a trial court order denying a motion to vacate a guilty plea. For example, in
People v. Davis, decided two years after Kidd, the Illinois Supreme Court explained that
“[t]he failure to properly admonish a defendant, alone, does not automatically establish
grounds for reversing the judgment or vacating the plea. *** Whether reversal is required
depends on whether real justice has been denied or whether defendant has been prejudiced by
the inadequate admonishment.” 145 Ill. 2d 240, 250 (1991); see also People v. Grant, 2015
IL App (4th) 140971, ¶ 29 (“[A]n imperfect admonishment does not violate due process
where real justice has not been denied or defendant has not shown prejudice.”); People v.
Holloway, 2014 IL App (1st) 131117, ¶ 29 (reversing trial court’s denial of motion to vacate
guilty plea because defendant was prejudiced by trial court’s failure to properly admonish
defendant in compliance with Rule 402); cf. People v. Reid, 2014 IL App (3d) 130296, ¶ 17
(finding that defendant’s waiver of right to pursue appellate and postconviction relief was
knowing, intelligent and voluntary where defendant could not show he was prejudiced by
inadequate admonishments).
¶ 55 Kidd is not to the contrary. In Kidd, the defendant pled guilty to several crimes, including
multiple counts of first degree murder. 129 Ill. 2d at 434. During a Rule 402 conference, the
defendant expressed concern that he would receive a sentence of life in prison without the
possibility of parole. Id. at 440. In response, the court told defendant “ ‘[t]hat’s not
necessarily what the sentence may be. That question would be a question for a jury to decide,
not for me to make that decision.’ ” Id. The court later told the defendant “ ‘whether or not a
life sentence, that is something that [is] controlled by the statute. I have no control over
that.’ ” Id. The defendant agreed to plead guilty and the matter was set for a sentencing
hearing during which a jury would decide whether to impose a death sentence. Id. at 441.
Three days later, the defendant sought to vacate his plea on the basis that he did not
understand the court’s admonishment regarding the possibility of a life sentence without
parole. Id.
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¶ 56 The Illinois Supreme Court held that the trial court’s admonishment was improper
because “[n]owhere on the record did the trial court inform defendant, before accepting his
pleas, that the court must sentence him, at a minimum, to mandatory natural life
imprisonment.” Id. at 443. The court noted that, although the trial court informed defendant
that the maximum penalty he faced was a death sentence, it never informed him that the
minimum sentence he faced was life in prison. Id. at 443-44. The court concluded that
“[b]ecause the trial court did not comply with the requirements of Rule 402, the denial of
defendant’s motion to withdraw his pleas was an abuse of discretion.” Id. at 447.
¶ 57 Although the court did not explicitly discuss the prejudice requirement, in the course of
distinguishing People v. Walker, 109 Ill. 2d 484 (1985), a case which the State principally
relied on, the court stated that the defendant in Walker “had no expectations that were
denied” and emphasized that “[t]he same affirmative showing cannot be made here.” Kidd,
129 Ill. 2d at 445. By distinguishing Walker on the basis that the trial court’s admonishments
in the case before it thwarted the defendant’s expectations in entering into the plea, the court
engaged in a sub silentio prejudice analysis.
¶ 58 Thus, in considering whether reversal is required on the basis that the trial court did not
properly admonish defendant pursuant to Rule 402, we must consider whether (1) the trial
court’s admonishments substantially complied with Rule 402 and, (2) if not, whether the
defendant suffered prejudice as a result. We review whether the trial court complied with
Rule 402 de novo. People v. Chavez, 2013 IL App (4th) 120259, ¶ 14. We review the trial
court’s decision to deny defendant’s motion to vacate his guilty plea for abuse of discretion.
People v. Delvillar, 235 Ill. 2d 507, 519 (2009).
¶ 59 We first address whether defendant is entitled to reversal on the basis that the court did
not admonish him about consecutive sentencing. Although the record clearly shows that the
trial court admonished defendant about the sentencing range for each crime to which he pled
guilty, nothing in the trial court’s admonishment specifically suggested to defendant the
possibility that he was subject to consecutive sentencing. Accordingly, we find that the trial
court’s admonishments did not substantially comply with Rule 402.
¶ 60 Defendant’s argument falters, however, on the prejudice prong of the analysis.
Defendant’s appellate brief does not explain how he was prejudiced by the trial court’s
inadequate admonishments. Accordingly, the prejudice issue is forfeited. See Ill. S. Ct. R.
341(h)(7) (eff. Feb. 6, 2013) (“Points not argued are waived and shall not be raised in the
reply brief, in oral argument, or on petition for rehearing.”); BAC Home Loans Servicing, LP
v. Mitchell, 2014 IL 116311, ¶ 23.
¶ 61 Forfeiture aside, we would still reject defendant’s argument because he cannot show that
he suffered prejudice. The Illinois Supreme Court has yet to set forth a clear definition of
prejudice in the Rule 402 context. Nonetheless, several cases from the supreme and appellate
court–namely People v. Williams, 2012 IL App (2d) 110559 (Anthony Williams), People v.
Torres, 228 Ill. 2d 382 (2008), People v. Davis, 145 Ill. 2d 240 (1991), People v. Williams,
2014 IL App (3d) 120824 (Adrian Williams), and People v. Baker, 133 Ill. App. 3d 620
(1985)–provide guidance on the issue.
¶ 62 In Anthony Williams, the defendant was charged with two counts of retail theft. 2012 IL
App (2d) 110559, ¶ 3. The defendant pled guilty to one count of retail theft and was
admonished that he was eligible for Treatment Alternatives to Street Crimes (TASC), an
alternative sentencing program. Id. ¶ 5. In fact, the defendant was not eligible for TASC due
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to his criminal record. Id. ¶ 11 n.1. The court sentenced the defendant to six years and six
months in prison. Id. ¶ 8. The defendant filed a motion to vacate his plea, arguing that he was
prejudiced by the court’s admonishment because “ ‘[h]ad [he] known, at the time he entered
the plea, that TASC was not a valid sentencing option, he could have more accurately
considered the sentencing paradigm and determined his potential sentencing range was great
enough that it would be more advantageous to elect to stand trial.’ ” Id. ¶ 11. The trial court
denied the motion and the appellate court affirmed. The appellate court explained that in
order to show prejudice, the defendant was required to allege that he would not have pled
guilty had he been properly admonished. Id. ¶ 18 (citing Davis, 145 Ill. 2d at 250). The court
held that the defendant could not show that he suffered prejudice because he did not allege
that he would not have pled guilty had he been properly admonished. Id.
¶ 63 In Torres, the defendant entered into a blind guilty plea to two counts of first degree
murder and was sentenced to 45 years’ imprisonment. 228 Ill. 2d at 384. At the plea hearing,
the trial court admonished the defendant that the sentencing range for first degree murder was
20 to 60 years’ imprisonment. Id. at 398. However, the actual minimum sentence the
defendant was subject to was 45 years’ imprisonment because the mandatory firearm
enhancement applied. Id. The defendant argued that he should have been permitted to vacate
his guilty plea because the trial court did not properly admonish him about the correct
minimum sentence he faced.
¶ 64 The Illinois Supreme Court disagreed, reasoning that the trial court “sentenced defendant
exactly as he had been admonished.” Id. at 400. That is, the defendant was advised that he
faced 20 to 60 years in prison, and he was sentenced to 45 years’ imprisonment, which was
within the sentencing range set forth in the court’s admonishments. Id. at 400-01.
¶ 65 In Davis, the defendant was charged with residential burglary and burglary. 145 Ill. 2d at
243. The defendant pled guilty to burglary and the State dismissed the residential burglary
charge. The record revealed that the defendant pled guilty on the mistaken belief that he was
eligible to participate in TASC, when defendant was in fact ineligible for TASC as well as
probation due to his criminal history. Id. at 243, 245-49. The court ultimately sentenced the
defendant to 10 years’ imprisonment. Id. at 243.
¶ 66 The defendant filed a motion to withdraw his guilty plea, which the trial court denied. Id.
The supreme court found that the trial court’s admonishments were improper and that the
defendant suffered prejudice because he alleged that he would not have pled guilty if he
knew he was ineligible for TASC and due to his misapprehension, “he did not attempt to
negotiate a lesser term of incarceration, and forwent the opportunity to go to trial, where he
may have been acquitted.” Id. at 250.
¶ 67 In Adrian Williams, the defendant was charged with unlawful delivery of a controlled
substance. 2014 IL App (3d) 120824, ¶ 3. At a pretrial hearing, the State informed the court
that the defendant, due to his criminal history, was eligible for Class X and extended term
sentencing. Id. ¶ 4. Accordingly, the court admonished the defendant that he was subject to a
sentencing range of 6 to 60 years’ imprisonment. Id. The defendant subsequently entered into
a partially negotiated plea whereby he pled guilty in exchange for a sentencing cap of 25
years. Id. ¶ 5. Thereafter, the defendant filed a motion to vacate his plea on the basis that he
was erroneously admonished that he faced a maximum 60 year sentence. Id. ¶ 6.
¶ 68 The appellate court held that the defendant was improperly admonished because he was
not eligible for extended term sentencing. Id. ¶ 22. Accordingly, the court found that the
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maximum sentence defendant faced was 30 years’ imprisonment. Id. The court held that the
defendant was prejudiced by the improper admonishment because he was “under the
misapprehension that he was negotiating a 35-year reduction of his maximum possible
sentence, not a mere 5 years.” Id. ¶ 26. The court found that significant because “defendant
here lost the opportunity to negotiate a lesser term of incarceration.” Id.
¶ 69 Finally, in Baker, the defendant pled guilty but mentally ill to home invasion, indecent
liberties with a child, and attempted deviate sexual assault. 133 Ill. App. 3d at 621. The
parties had no negotiations regarding the sentence to be imposed. Id. When it admonished the
defendant, the court did not tell him that he was subject to consecutive sentencing. The court
did, however, inform him that he faced up to 30 years’ imprisonment. Id. at 622. The court
ultimately sentenced the defendant to six years’ imprisonment for home invasion and four
years’ imprisonment for indecent liberties with a child and attempted deviate sexual assault.
Id. at 621. The sentences for indecent liberties with a child and attempted deviate sexual
assault were to run concurrent to each other, but consecutive to the sentence for home
invasion. Id. The defendant subsequently filed a motion to vacate his plea on the basis that
the court did not admonish him about the possibility of consecutive sentencing, which the
court denied. Id. The appellate court affirmed, reasoning that the defendant could not show
that he was prejudiced by the allegedly deficient admonishment because he was informed
that he could receive a sentence of up to 30 years’ imprisonment, and his aggregate sentence
was less than 30 years. Id. at 622.
¶ 70 Based on the cases discussed above, we find three reasons why defendant cannot
demonstrate that he was prejudiced by the trial court’s improper admonishments. First,
defendant did not claim anywhere in his motion to vacate or appellate brief that that he would
not have pled guilty had he received a proper admonishment. This is fatal to defendant’s
argument. See Davis, 145 Ill. 2d at 250; Anthony Williams, 2012 IL App (2d) 110559, ¶ 18
(“Here, defendant does not allege that he would not have pleaded guilty. *** This defeats his
claim of prejudice.”); see also People v. Mendoza, 342 Ill. App. 3d 195, 202 (2003) (finding
that defendant could not show prejudice because he did not allege that he would not have
pled guilty in face of proper admonishment).
¶ 71 Second, the record establishes that the trial court, when admonishing defendant about the
sentencing range he faced as a result of the firearm enhancement, informed defendant that the
maximum sentence the court could impose was life in prison. Defendant has presented no
argument that the trial court’s admonishment in that respect was inaccurate. See Adrian
Williams, 2014 IL App (3d) 120824, ¶ 26. Thus, the trial court did not impose a sentence on
defendant that exceeded the sentence defendant was told he could receive. To the contrary,
defendant’s sentence was consistent with the court’s admonishment that he could receive up
to a life sentence as a result of the firearm enhancement. See Torres, 228 Ill. 2d at 400.
Because defendant’s sentence was consistent with at least one of the sentencing parameters
of which he was admonished, he cannot show that he suffered prejudice. Id. at 400-01; see
also Baker, 133 Ill. App. 3d at 622.
¶ 72 Third, defendant entered into a blind plea. Defendant was admonished that there was no
agreement between him and the State or court regarding the sentence he would receive. Thus,
defendant had no reasonable expectations regarding the sentence he would receive.
Therefore, he cannot argue that his expectations were thwarted or that he would have
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negotiated a more favorable plea had he received a proper admonishment. See Adrian
Williams, 2014 IL App (3d) 120824, ¶ 26; see also Kidd, 129 Ill. 2d at 445.
¶ 73 We next consider whether reversal is required because the trial court permitted defendant
to plead guilty to two counts of first degree murder or because it failed to admonish
defendant of the correct minimum sentence he faced for first degree murder. Defendant did
not raise either of these arguments in his motion to vacate. Accordingly, defendant has
forfeited these arguments. See Ill. S. Ct. R. 604(d) (eff. Dec. 11, 2014). Defendant argues that
we may nevertheless consider these claims, either as plain error or ineffective assistance of
counsel. We consider these arguments in turn.
¶ 74 Under the plain error doctrine, “we may review plain errors affecting substantial rights,
though not objected to at trial or in a post-trial motion.” People v. Fuller, 205 Ill. 2d 308, 343
(2002); see Ill. S. Ct. R. 615(a). We may review claims under the plain-error doctrine when
“(1) a clear or obvious error occurred and the evidence is so closely balanced that the error
alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious
that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial
process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551,
565 (2007).
¶ 75 The second prong of the plain error doctrine has been equated with structural error.
People v. Thompson, 238 Ill. 2d 598, 613-14 (2010). “Structural error is a systemic error that
erodes the integrity of the judicial process” and which so undermines the fairness of the
underlying proceeding as to necessitate automatic reversal. People v. Downs, 2014 IL App
(2d) 121156, ¶ 31. Structural error has only been recognized in a narrow subset of cases,
namely those involving the complete denial of counsel, trial before a biased judge, racial
discrimination in the selection of a grand jury, denial of the right of self-representation at
trial, denial of a public trial, and where the trial court propounds a defective reasonable doubt
instruction. Id.
¶ 76 Defendant’s plain error arguments consist entirely as follows:
“However, this Court can reach the merits of this issue as plain error because a
court’s failure to admonish a defendant pursuant to Rule 402 affects substantial
rights. ILL. SUP. CT. R. 615(a) (2008); see also People v. Piatkowski, 225 Ill. 2d
551, 564 (2007); People v. Waldorf, 94 Ill. App. 3d 976, 981 (1st. Dist. 1981)
(applying plain error test to issue of trial court’s compliance with Rule 402).”
In People v. Nieves, the Illinois Supreme Court held that the defendant’s plain error argument
was waived because it consisted of a single sentence and “neither argue[d] that the evidence
was closely balanced nor explain[ed] why the error [was] so severe that it must be remedied
to preserve the integrity of the judicial process.” 192 Ill. 2d 487, 503 (2000). We find that
defendant has similarly waived his plain error argument here. Defendant does not argue that
the evidence in the case is closely balanced, and People v. Waldorf, 94 Ill. App. 3d 976
(1981), did not hold that an improper Rule 402 admonishment constitutes structural error.
Accordingly, we find that defendant has forfeited his plain error argument.
¶ 77 Alternatively, defendant contends that his lawyer rendered ineffective assistance by
failing to raise these issues in the motion to vacate his guilty plea. Ineffective assistance of
counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S.
668 (1984). To prevail on such a claim, a criminal defendant must show that trial counsel’s
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performance was objectively deficient and “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694; People v. Stewart, 141 Ill. 2d 107, 118 (1990).
¶ 78 Reaching the merits of defendant’s remaining arguments under the deficiency prong of
Strickland, we find that defendant’s ineffective assistance of counsel claim fails because,
even assuming that the trial court’s admonishments were improper, defendant cannot show
that he suffered prejudice.1 With regard to his claim that the trial court permitted him to
plead guilty to two counts of first degree murder, we note that defendant has failed to
articulate how he was prejudiced or allege that he would not have pled guilty had the court
admonished him differently. In light of this failure, we cannot find that defendant’s counsel
was constitutionally deficient for not raising this issue before the trial court.
¶ 79 Nor did defendant’s counsel render ineffective assistance by failing to argue that the trial
court’s failure to advise defendant of the correct minimum sentence for first degree murder
rendered his plea involuntary. Because defendant was admonished that he faced up to life in
prison and his sentence was consistent with that admonishment, defendant cannot show that
he suffered prejudice. And, because defendant’s underlying argument lacks merit, his counsel
was not ineffective for failing to raise it in the motion to vacate. See People v. Griffin, 148
Ill. 2d 45, 57 (1992) (attorney’s failure to challenge voluntariness of postarrest statement not
ineffective assistance because argument would have been futile); People v. Rucker, 346 Ill.
App. 3d 873, 889 (2003) (attorney’s failure to file motion to suppress not ineffective
assistance because motion would have been futile).
¶ 80 In sum, we find that the trial court did not abuse its discretion by denying defendant’s
motion to vacate his guilty plea.
¶ 81 B. Validity of Defendant’s Sentence
¶ 82 We next consider whether the trial court erred by denying defendant’s motion to
reconsider his sentence. Defendant specifically argues that the court committed error during
the sentencing hearing by (1) basing its sentencing decision on its personal beliefs and
private investigations; (2) abandoning its role as neutral arbiter; (3) punishing him for
declining to speak in allocution; and (4) failing to consider mitigating evidence.
¶ 83 A trial court has “broad discretionary powers in imposing a sentence, and its sentencing
decisions are entitled to great deference.” People v. Alexander, 239 Ill. 2d 205, 212 (2010).
We must give “substantial deference” to the trial court’s sentencing decision “because the
trial judge, having observed the defendant and the proceedings, is in a much better position to
consider factors such as the defendant’s credibility, demeanor, moral character, mentality,
environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36. Accordingly, we will
not disturb the trial court’s sentencing decision absent an abuse of discretion. Id.
¶ 84 1. Whether the Trial Judge Abandoned His Role as Neutral Arbiter
¶ 85 We first consider defendant’s contention that the trial judge abandoned his role as neutral
arbiter by examining Dr. Hanlon during the sentencing hearing. “[A] trial judge has the right
We refer to “prejudice” as that term is used in the context of a Rule 402 analysis and not the second
1
prong of a Strickland claim.
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to question witnesses in order to elicit the truth or to bring enlightenment on material issues
which seem obscure.” People v. Palmer, 27 Ill. 2d 311, 314 (1963); see Ill. R. Evid. 614(b)
(eff. Jan. 1, 2011). Whether such an examination was proper is determined on a case-by-case
basis and rests largely in the court’s discretion. Palmer, 27 Ill. 2d at 315.
¶ 86 In arguing that the trial court’s conduct was improper, defendant relies principally upon
People v. Jackson, 409 Ill. App. 3d 631 (2011). In Jackson, the appellate court held that the
trial judge abandoned his role as neutral arbiter “by adopting a prosecutorial role when
questioning defendant’s expert witness.” Id. at 647. Several pertinent factors affected the
court’s analysis. First, the court noted that the “tone and manner” of questions interposed by
the court to the defendant’s expert “exhibit[ed] bias that is more similar to a cross-examining
prosecutor than an impartial jurist.” Id. at 648. The court stated that the court’s questions
were “argumentative and showed a disregard and unfavorable bias.” Id. As an example, the
court cited a colloquy during which the court trapped the defense’s expert witness by asking
the witness about medications the defendant was taking and then impeaching him by pointing
out that he was not a physician and thus was not qualified to testify about the effects of
medications because he could not prescribe medications. Id. at 636, 648. The court also
pointed out that the trial judge asked the witness who had hired him, which could have only
served to expose the witness’s possible bias in favor of the defendant. Id. at 648. As
additional evidence that the trial judge was biased against the defendant, the appellate court
noted that the trial judge repeatedly referred to the defendant’s shooting as a “ ‘murder,’ ”
despite the fact that the trial had not ended. Id. at 649.
¶ 87 We find, for several reasons, that Jackson is distinguishable from the present case. First,
we see no evidence in the record that the trial court prejudged the outcome of the case. To the
contrary, by asking Dr. Hanlon whether defendant’s gang membership contradicted
testimony that defendant’s disability would hinder his ability to socialize, the judge gave Dr.
Hanlon an opportunity to clarify his testimony. Rather than show bias, this demonstrates
open-mindedness. Similarly, there is no evidence that the court attempted to trap Dr. Hanlon
by inviting him to testify about matters outside his area of expertise. Rather, the court’s
questions were focused precisely on the testimony Dr. Hanlon had only moments before
given in response to questions by the State and defense counsel. And importantly, the court
did not ask Dr. Hanlon questions designed exclusively to expose bias in favor of defendant.
¶ 88 It is true that the court repeatedly used leading questions when examining Dr. Hanlon.
Defendant suggests that such questions were “by definition *** not open minded.” But when
considering whether the trial court exceeded its authority in questioning a witness, we are not
bound down by per se rules, such as the absolute rule against leading questions defendant
urges us to adopt. Instead, our consideration of “[w]hether a trial court’s questioning of a
witness is appropriate depends on the facts and circumstances of each case and rests largely
in the discretion of the trial court.” Id. at 647; see People v. Smith, 299 Ill. App. 3d 1056,
1062 (1998) (“It is not per se error for a trial judge to question a witness.”). Considered
under the totality of the circumstances, we do not believe that the trial court’s use of leading
questions was improper.
¶ 89 Nor do we believe that reversal is necessary because the court’s questions elicited
testimony favorable to the State. Certain facts contained in defendant’s presentence report
could have been viewed as contradicting Dr. Hanlon’s testimony that defendant had
difficulty socializing. Specifically, the report indicated that defendant had a good relationship
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with his mother, that he was on numerous school athletic teams from sixth through ninth
grade, and that he participated in music and a school play during the eighth grade. The report
further indicated that defendant enjoyed spending his free time “going to the center,” where
he would spend his time doing homework, playing basketball, and “be up under a girl and
chill.” The nature of these activities suggests that defendant possessed at least a modicum of
social skills, and thus superficially undercut Dr. Hanlon’s testimony. Under these
circumstances, it was not improper for the trial judge to examine Dr. Hanlon to better
understand his testimony, even if the resulting colloquy produced testimony unfavorable to
defendant. See People v. Sutton, 260 Ill. App. 3d 949, 959-60 (1994) (“The trial court does
not *** assume the role of prosecutor merely because its questions solicit evidence material
to the State’s case.”). Based on the foregoing, we find that the trial court did not abandon its
role as neutral arbiter.
¶ 90 2. Whether the Trial Court Failed to Consider Mitigating Evidence
¶ 91 We next consider whether the trial court committed error by failing to consider mitigating
evidence. Under the proportionate penalties clause of the Illinois Constitution, a trial court
must fix a defendant’s punishment “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 mandate calls for the balancing of the retributive and rehabilitative purposes of
punishment.’ ” People v. Calhoun, 404 Ill. App. 3d 362, 385 (2010) (quoting People v.
Quintana, 332 Ill. App. 3d 96, 109 (2002)). That balancing, in turn, requires that the court
engage in an inclusive, holistic consideration of “all of the factors in aggravation and
mitigation, including, inter alia, the defendant’s age, demeanor, habits, mentality, credibility,
criminal history, general moral character, social environment, and education, as well as the
nature and circumstances of the crime and of defendant’s conduct in the commission of it.”
Id. In accordance with these principles, a “ ‘sentencing authority may not refuse to consider
relevant evidence presented in mitigation.’ ” Id. at 386 (quoting People v. Heinz, 391 Ill.
App. 3d 854, 865 (2009)).
¶ 92 Though sentencing courts may not disregard mitigating evidence, they retain discretion to
assign how much weight it carries. People v. Markiewicz, 246 Ill. App. 3d 31, 55 (1993).
Accordingly, “the existence of mitigating factors does not automatically oblige the trial court
to reduce a sentence from the maximum allowed.” Id. Moreover, when the defendant has
presented mitigating evidence to the court, it is presumed that the court considered the
evidence. Id.; see also People v. Willis, 210 Ill. App. 3d 379, 389 (1991); People v. Baker,
114 Ill. App. 3d 803, 811 (1983). The presumption that the trial court considered all
mitigating evidence may be rebutted, but to do so the defendant must point to evidence other
than the sentence which the court imposed. Markiewicz, 246 Ill. App. 3d at 55. In other
words, a harsh sentence, standing alone, does not show that the court ignored mitigating
evidence.
¶ 93 In the present case, defendant argues that, given the length of his sentence (he will be 110
years old when he is released), “[the trial judge’s] insistence that he considered [defendant’s]
upbringing rings hollow.” We reject defendant’s argument because, as we explained above, a
defendant cannot rebut the presumption that the court considered mitigating evidence by
merely pointing to the harshness of the sentence imposed by the court.
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¶ 94 Moreover, defendant’s contentions are affirmatively rebutted by the record. When the
court began announcing its sentence, it prefaced its remarks by explaining that it would base
defendant’s sentence on “the facts of the case,” the PSI, the victim impact statements, and the
evidence and arguments in aggravation and mitigation. In his brief, defendant specifically
argues that the court failed to consider the following mitigating factors: his (1) youth; (2)
rehabilitative potential; (3) upbringing; (4) history of substance abuse; (5) disability; and (6)
lack of a criminal record. However, evidence regarding each of these factors was presented to
the court, either through argument by defense counsel or through the presentence report. In
light of the court’s prefatory comments and the fact that the record establishes that the
evidence highlighted by defendant was presented to the court, we find that the record
conclusively establishes that the court considered all mitigating evidence presented by
defendant.
¶ 95 Defendant also argues that the court’s statement that defendant’s sentence “serves two
masters. One, that it is retributive, and two, that it is a message to those people in those dark
alleys *** that people like you and I outnumber them by thousands and by millions” shows
that the court did not consider his rehabilitative potential. This argument, however, ignores
the judge’s statement that he would consider the mitigating evidence presented by defendant.
Mitigating evidence is itself evidence of rehabilitative potential; thus, the court’s statement
that it would consider evidence in mitigation was an implicit statement that it would consider
defendant’s rehabilitative potential. See People v. Gaines, 88 Ill. 2d 342, 381-82 (1981)
(statutory requirement that death penalty jury consider any relevant mitigating factors
sufficient to satisfy constitutional muster under proportionate penalties clause); People v.
Parker, 192 Ill. App. 3d 779, 791 (1989) (trial court’s consideration of presentence report
and attorney’s argument reciting mitigating factors sufficient to show that court took
defendant’s rehabilitative potential into account); see also People v. Boclair, 225 Ill. App. 3d
331, 335 (1992) (“[T]he trial court is not required to *** make an express finding that the
defendant lacked rehabilitative potential [citation].”). Understood in this light, the court’s
failure to state that the sentence furthered the purpose of rehabilitating defendant makes
sense: if the court believed that defendant lacked rehabilitative potential, then there was no
reason for the court to announce that defendant’s sentence furthered the purpose of
rehabilitating him. Accordingly, we find that the court did not abuse its discretion by failing
to consider mitigating evidence.
¶ 96 3. Whether the Trial Court Violated Defendant’s
Privilege Against Self-Incrimination
¶ 97 We next consider whether the trial court committed reversible error by punishing
defendant for declining to speak in allocution. During the sentencing hearing, the trial court
stated that it would consider “the defendant’s right of allocution, which he did not avail
himself of.” Defendant, citing Mitchell v. United States, 526 U.S. 314 (1999), and People v.
Swank, 344 Ill. App. 3d 738 (2003), contends that the trial court punished him for exercising
his right to silence by (1) drawing from his silence the negative inference that he lacked
remorse and (2) considering his purported lack of remorse as an aggravating factor.
¶ 98 The privilege against self-incrimination emanates from the self-incrimination clause of
the fifth amendment to the United States Constitution, which provides that no person “shall
be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V.
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The privilege, applicable to the states through the fourteenth amendment (Malloy v. Hogan,
378 U.S. 1, 8 (1964)), was enacted as a repudiation of the practices of the Star Chamber and
ecclesiastical courts of England (Andresen v. Maryland, 427 U.S. 463, 470 (1976); Ullmann
v. United States, 350 U.S. 422, 428 (1956)), which followed “the inquisitorial method of
putting the accused upon his oath and compelling him to answer questions designed to
uncover uncharged offenses, without evidence from another source” (Doe v. United States,
487 U.S. 201, 212 (1988)). The essence of the privilege is “ ‘the requirement that the State
which proposes to convict and punish an individual produce the evidence against him by the
independent labor of its officers, not by the simple, cruel expedient of forcing it from his own
lips.’ ” (Emphasis in original.) Estelle v. Smith, 451 U.S. 454, 462 (1981) (quoting Culombe
v. Connecticut, 367 U.S. 568, 581-82 (1961)). “[T]he privilege is fulfilled only when a
criminal defendant is guaranteed the right ‘to remain silent unless he chooses to speak in the
unfettered exercise of his own will, and to suffer no penalty ... for such silence.’ ” Id. at 468
(quoting Malloy, 378 U.S. at 8).
¶ 99 Accordingly, “[t]he normal rule in a criminal case is that no negative inference from the
defendant’s failure to testify is permitted.” Mitchell, 526 U.S. at 327-28; see Griffin v.
California, 380 U.S. 609, 615 (1965) (holding that fifth amendment “forbids either comment
by the prosecution on the accused’s silence or instructions by the court that such silence is
evidence of guilt”). The privilege applies in noncapital sentencing hearings. Mitchell, 526
U.S. at 326-27. Moreover, a criminal defendant does not waive the privilege by entering a
guilty plea. Id. at 316.
¶ 100 Applying these principles, we hold that a criminal defendant’s privilege against
self-incrimination is unconstitutionally infringed when (1) the defendant’s silence is used as
evidence that he lacks remorse and (2) the trial court considers the defendant’s lack of
remorse as an aggravating factor when imposing a sentence. A contrary rule would require
criminal defendants to choose between (1) waiving their right to silence and speaking in
allocution to express remorse (perhaps untruthfully), on the one hand, and (2) maintaining
steadfast in their silence and thereby risking a lengthier sentence, on the other. Such an
interpretation of the fifth amendment would be self-defeating, for as we have explained
above, that text at its core means that the government, not the accused, must produce the
evidence necessary to convict and impose a particular punishment. Estelle, 451 U.S. at 462.
Thus, while a sentencing court may consider a defendant’s lack of remorse as an aggravating
factor, evidence that the defendant lacks remorse must be drawn from some source other than
the defendant’s silence during the sentencing hearing, such as the manner in which the
defendant refers to a victim (see People v. Burgess, 176 Ill. 2d 289, 317 (1997)) or describes
his crime (see People v. Neal, 111 Ill. 2d 180, 196 (1985)).
¶ 101 During the hearing on defendant’s motion to reconsider sentence, the trial court
attempted to walk back its statement that it would consider defendant’s declination to speak
in allocution, stating that it “really didn’t even play a role in my sentencing.” That statement
is not sufficient to assuage our concerns, for as the court has previously explained, “[i]f it is
on [the judge’s] tongue, it most assuredly must be on his mind.” People v. Wardell, 230 Ill.
App. 3d 1093, 1103 (1992). In light of the trial court’s unequivocal statement during the
sentencing hearing that it would consider “the defendant’s right of allocution, which he did
not avail himself of,” we find that the record affirmatively shows that defendant was
punished for choosing to remain silent during the sentencing hearing. Accordingly, we vacate
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defendant’s sentence and remand for resentencing.
¶ 102 4. Whether the Trial Court Considered Improper
Evidence at the Sentencing Hearing
¶ 103 We next consider whether the trial court considered its personal beliefs about gang
violence and private investigations during the sentencing hearing. It is presumed that trial
judges consider only competent evidence and discard incompetent evidence when rendering
decisions. People v. Robinson, 30 Ill. 2d 437, 439 (1964); see People v. Naylor, 229 Ill. 2d
584, 603 (2008). This presumption may be rebutted, however, when the record
“ ‘affirmatively shows’ ” that the court considered improper evidence. Naylor, 229 Ill. 2d at
603-04 (quoting People v. Gilbert, 68 Ill. 2d 252, 258-59 (1977)). “Consideration of an
improper factor in aggravation affects a defendant’s fundamental right to liberty, and
therefore, is an abuse of discretion.” People v. McAfee, 332 Ill. App. 3d 1091, 1096 (2002).
The underlying question of whether the court in fact considered an improper factor presents a
legal question which we review de novo. People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8.
¶ 104 The record from defendant’s sentencing hearing reveals that the trial court considered its
personal feelings about gang violence as well as evidence that was not presented by either
party. For example, immediately after discussing the sentencing factors the court would
consider, the court noted that it was “saddened” and that it would “bring to bear” its
“personal experience” of the effects of gang violence when sentencing defendant. Later, the
trial judge discussed walking his daughter to school and then hypothesized about the feelings
of other parents who take their children to school, stating “I know that on the date that Blair
Holt was killed, his parents kissed him good-bye and told him they loved him.” The court
also indicated that he was aligned with the victims’ families, declaring “[t]he Holts, their son,
the other children on that bus, they define who I am.” The court then stated “[n]o amount of
guns and no amount of young punks and no amount of gang members are ever going to find
enough dark corners and dark alleys to hide in, because there are way, way more of us than
there are of them.” (Emphasis added.) Referring to the surveillance video of the shooting, the
judge again referred to his daughter, stating “I *** watched the man before me mount the
steps to that bus, buses that I have mounted my whole life, buses that I have mounted with
my daughter ***.”
¶ 105 Later, the court referred to the “fact” that “only one or two percent of the population
make the lives of those there miserable by their conduct,” despite the fact that no evidence
supporting that statement had been introduced by either party. Later, when discussing Dr.
Hanlon’s testimony, the court declared that children from Deerfield also face challenges
similar to those faced by defendant but have not committed transgressions like defendant’s.
As with the 2% comment, this statement was not corroborated by any evidence introduced by
either party. The court’s consideration of these evidentiary matters which were not supported
by the evidence was improper. See People v. Dameron, 196 Ill. 2d 156, 179 (2001); People v.
Rivers, 410 Ill. 410, 418-19 (1951).
¶ 106 Furthermore, when discussing Dr. Hanlon’s testimony, the trial court noted that it had
“heard from doctors like Hanlon before” and referred to its “experience with their
testimony.” Later, the court stated that it was “weary tired of watching doctors,
psychologists, walk into my courtroom and somehow provide some shade for the conduct of
a person like Michael Pace.” These statements show the trial judge, in rejecting Dr. Hanlon’s
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testimony, considered matters outside the record. This, too, was improper and constitutes
prejudicial error. See People v. Steidl, 177 Ill. 2d 239, 266 (1997) (in postconviction hearing,
trial judge’s consideration of prior knowledge of attorney’s performance in past cases
improper; consideration of such evidence is prejudicial error); Jackson, 409 Ill. App. 3d at
656 (Connors, J., dissenting) (holding that trial judge considered evidence outside record
where the court stated “ ‘[m]ental acuity is constantly misrepresented in the circumstances of
the testimony that I hear from the witness stand in this building’ ”).
¶ 107 We note again that the trial court began its comments by stating that its sentencing
decision would be based on several valid considerations, such as the mitigating and
aggravating evidence and the facts of the case. The State suggests that the court’s decision
was based solely on those factors. But as we have explained, the record does not permit such
a finding. The trial court’s extensive remarks about the problem of gang violence in Chicago,
as well as its discussions of its personal views and experiences and consideration of evidence
not located in the record, show that the judge considered much more than just the facts of the
case and the mitigating and aggravating factors. See Wardell, 230 Ill. App. 3d at 1103.
¶ 108 As a result of these errors, defendant was denied a fair sentencing hearing. Consequently,
we must vacate defendant’s sentence and remand for resentencing. We do not reach this
conclusion lightly. “[W]here it can be determined from the record that the weight placed on
the improperly considered aggravating factor was so insignificant that it did not lead to a
greater sentence, remandment is not required.” People v. Bourke, 96 Ill. 2d 327, 332 (1983).
The facts of this case would wrench the emotions of even the most staid jurist, and we
appreciate and understand the sentiments which the able and experienced trial judge
expressed during sentencing. However, based on the record before us, we cannot conclude
that the trial court placed insignificant weight on the improper considerations we have
described above. Indeed, the record suggests that the trial court placed significant emphasis
on these considerations. It is noteworthy that the portion of the record in which the trial court
announced its sentence goes on for 16 pages. At least four of those pages were devoted solely
to the court discussing its personal feelings about gang violence; other large portions see the
judge discussing the victims and stating that he was aligned with them. Under these
circumstances, we must vacate the defendant’s sentence and remand the case for
resentencing. In light of the issues described above, the defendant’s resentencing must be
before a different judge. See People v. Negrete, 258 Ill. App. 3d 27, 32 (1994).
¶ 109 C. Whether the Trial Court Remained Neutral During the
Hearing on Defendant’s Motion to Vacate Guilty Plea
¶ 110 We next consider whether the trial judge abandoned its role as neutral arbiter during the
hearing on defendant’s motion to vacate his guilty plea by assuming the role of the
prosecutor and improperly examining Dr. Grossman. We begin, however, with the issue of
forfeiture. The State contends that defendant forfeited this issue by failing to object during
the hearing and raise the issue in a posthearing motion. Generally, the failure to
contemporaneously object and raise an issue in a posthearing motion results in the issue’s
forfeiture on review. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However,
“[a]pplication of the waiver rule *** is less rigid where the basis for the objection is the
circuit judge’s conduct.” People v. Davis, 185 Ill. 2d 317, 343 (1998). We will therefore
review the issue for error.
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¶ 111 Defendant first complains that the trial judge rejected Dr. Grossman’s testimony because
Dr. Grossman testified in response to one of the court’s questions that she did not ask
whether defense counsel prepared defendant to receive his admonishments in advance of the
guilty plea hearing. Defendant contends that this fact was irrelevant to the purpose of the
hearing because the issue was whether defendant had the mental capacity to understand his
admonishments. Defendant concludes by citing People v. Weakley, 45 Ill. 2d 549 (1970), for
the proposition that “a plea’s voluntariness depends upon the trial court’s admonitions to the
defendant in open court, not what counsel informed the defendant prior to the proceedings.”
¶ 112 Defendant’s reliance on Weakley is misplaced. In Weakley, the trial court failed to
admonish the defendant about the maximum penalty he was facing. Id. at 552. The Illinois
Supreme Court held that Illinois law requires that the court admonish the defendant about the
maximum penalty possible, and that the court’s failure to do so could not be excused even
when there was evidence that trial counsel explained to the defendant the maximum penalties
he was facing. Id. at 552-53. Weakley thus had nothing to do with the defendant’s capacity to
understand an admonishment.
¶ 113 “To enter a voluntary plea of guilty, a defendant must understand the nature of the
proceedings against him and be competent to assist in his own defense.” People v. Shanklin,
351 Ill. App. 3d 303, 306 (2004); People v. Perkins, 53 Ill. App. 3d 412, 415 (1977). It seems
to us beyond dispute that evidence showing whether trial counsel conferred with defendant
prior to the guilty plea hearing to explain to him the admonishments he would receive is
directly relevant to the issue of whether defendant understood the trial court’s
admonishments. Although such a conference is not required in every case, whether such
discussions took place is probative of whether the defendant has the necessary mental
capacity to enter a guilty plea. See People v. Palmer, 27 Ill. 2d 311, 313 (1963) (finding that
defendant validly waived right to jury trial where defendant stated in open court that he did
not understand admonishments in open court but record reflected that defense counsel had
explained admonishments to defendant). Accordingly, we disagree with defendant and find
that the trial court did not abuse its discretion by asking Dr. Grossman about the extent of
defense counsel’s preplea discussions with defendant.
¶ 114 Defendant next contends that the trial judge exhibited bias because he asked Dr.
Grossman leading questions. However, as we have explained, the mere fact that the trial
court asked leading questions does automatically mean the judge was biased.
¶ 115 Defendant also argues that the judge’s bias was evident based on the fact that he
repeatedly interrupted Dr. Grossman and “belittled” her by stating that one of his questions
was “simple.” We disagree. When considered in context, it is clear that the trial court did not
intend to insult Dr. Grossman, but rather sought to clarify its question. Toward the end of Dr.
Grossman’s redirect examination, she testified that defendant would have an easier time
understanding material if he had the opportunity to read it as opposed to only hearing it. The
court then asked Dr. Grossman “[w]ouldn’t that be the case for everybody?” Dr. Grossman
initially answered in the negative. After the court attempted to restate its question, Dr.
Grossman answered “[t]hat’s not what I’m hearing here.” At that point, the court stated
“[t]hat’s the question is asked you, though, and it’s a pretty simple one.” Dr. Grossman then
answered “yes.” The fact that Dr. Grossman changed her answer shows that the court’s
question needed clarification and is therefore evidence that the purpose of the court’s
statements was not to belittle Dr. Grossman, but rather clarify his question.
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¶ 116 Defendant also takes issue with the court’s questioning of Dr. Grossman regarding
whether she previously offered expert testimony based on reports prepared by other people.
Defendant argues that, because the State had stipulated to Dr. Grossman’s expertise, this
question could only serve to undermine her testimony. We disagree.
¶ 117 It is widely accepted that “[a]n expert’s opinion is only as valid as the basis and reason
for the opinion.” (Internal quotation marks omitted.) People v. Jones, 2015 IL App (1st)
121016, ¶ 94 (quoting People v. Wright, 2012 IL App (1st) 073106, ¶ 127). In the present
case, it is clear from the content of the court’s question that the judge was interested in
confirming that Dr. Grossman had an adequate basis for her opinion that defendant lacked
the capacity to understand his admonishments. Thus, this line of questioning was not
improper.
¶ 118 Based on the foregoing, we find that the trial judge did not abandon his role as neutral
arbiter during the hearing on defendant’s motion to vacate his guilty plea.
¶ 119 D. Whether the Automatic Transfer Statute, the Firearm Enhancement,
and the Consecutive Sentencing Statute Are Constitutional
¶ 120 We next consider defendant’s constitutional challenges to the automatic transfer statute,
consecutive sentencing statute, and the mandatory firearm enhancement. 2 Defendant’s
arguments are two-fold. First, he argues that the automatic transfer provision of the Juvenile
Court Act violates his right to due process under the Illinois and United States constitutions,
as well as the eighth amendment to the United States Constitution and the proportionate
penalties clause of the Illinois Constitution. Second, he argues that the mandatory firearm
enhancement and consecutive sentencing statute, as applied to him in conjunction with one
another, violate his rights under the eighth amendment and proportionate penalties clause.
¶ 121 1. Whether the Automatic Transfer Provision Is Constitutional
¶ 122 We first consider defendant’s challenge to the automatic transfer provision of the
Juvenile Court Act. See 705 ILCS 405/5-130 (West 2006). The automatic transfer statute
mandates that minor offenders charged with certain enumerated offenses, including first
degree murder and aggravated battery with a firearm, have their cases heard in adult criminal
court. 705 ILCS 405/5-130(1)(a) (West 2006). Defendant contends that the automatic
transfer statute violates the due process clause of the fourteenth amendment “because it is not
rational to transfer 15- and 16-year-old offenders to adult court without a hearing where none
of the four legitimate penological justifications for adult sentencing practices apply to
juvenile offenders.” Defendant further argues that the statute violates the eighth amendment
and proportionate penalties clause because the mandatory nature of the statute precludes
courts from considering an offender’s youth and other characteristics before transferring a
case to adult court.
¶ 123 The Illinois Supreme Court rejected virtually identical arguments in People v. Patterson,
2014 IL 115102, ¶¶ 93-98 (rejecting due process challenge); id. ¶ 101 (rejecting eighth
amendment and proportionate penalties clause challenges). Patterson is binding authority on
2
These issues are not moot, despite the fact we are vacating defendant’s sentence, because on
remand these statutes will still be applicable to defendant.
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us, so we must reject defendant’s challenge to the constitutionality of the automatic transfer
statute.
¶ 124 2. Whether the Mandatory Firearm Enhancement and
Mandatory Consecutive Sentencing Statutes Are Constitutional
¶ 125 We next consider defendant’s constitutional challenges to the mandatory firearm
enhancement and consecutive sentencing statute. The firearm enhancement is contained in
section 5-8-1 of the Unified Code of Corrections, which provides in relevant part “if, during
the commission of the offense, the person personally discharged a firearm that proximately
caused *** death to another person, 25 years or up to a term of natural life shall be added to
the term of imprisonment imposed by the court.” 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006).
The consecutive sentencing statute is contained in section 5-8-4 of the Unified Code of
Corrections, which provides in relevant part that the trial court must impose consecutive
sentences if “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.” 730 ILCS
5/5-8-4 (West 2006). Pursuant to this statute, defendant was subject to mandatory
consecutive sentencing because first degree murder and aggravated battery with a firearm are
both triggering offenses. 720 ILCS 5/12-4.2(b) (West 2006) (aggravated battery with a
firearm is a Class X offense).
¶ 126 a. Constitutionality Under Eighth Amendment
¶ 127 The eighth amendment, applicable to the states through the fourteenth amendment
(Kennedy v. Louisiana, 554 U.S. 407, 419 (2008)), provides that “[e]xcessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S.
Const., amend. VIII. The United States Supreme Court has interpreted the cruel and unusual
punishment clause to prohibit “inherently barbaric punishments” as well as punishments
which are disproportionate to the offense. Graham v. Florida, 560 U.S. 48, 59 (2010).
¶ 128 Within the past ten years, the United States Supreme Court has decided three eighth
amendment cases addressing juvenile sentencing issues. The first case was Roper v.
Simmons, 543 U.S. 551 (2005). In Roper, the Court held that the eighth amendment
prohibited the imposition of a death sentence on juvenile homicide offenders. Id. at 578. The
Court explained that three key distinctions between juvenile and adult offenders
“demonstrate[d] that juvenile offenders cannot with reliability be classified among the worst
offenders.” Id. at 569. First, the Court noted that juveniles are often immature and lack a
sense of responsibility. Id. Second, the Court emphasized that juveniles are often more
susceptible to peer pressure and other negative influences. Id. Finally, the Court pointed out
that, unlike an adult offender, a juvenile’s character is “less fixed.” Id. at 570. As a result of
these differences, the Court explained, juvenile offenders have less moral culpability than
their adult counterparts, and therefore the penological justifications for imposing the death
penalty–retribution and deterrence–are substantially diminished in cases involving juveniles.
Id. at 571.
¶ 129 Next came Graham. In Graham, the Court held that the eighth amendment prohibited the
imposition of life without parole sentences for juveniles convicted of nonhomicide offenses.
560 U.S. at 52. In explaining its decision, the Court noted that juveniles have reduced
culpability due to their youth and are therefore “less deserving of the most severe
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punishments.” Id. at 68. The Court further noted that a life sentence without parole is the
second most severe penalty a court could impose and that the penalty is more severe for
juveniles because they will serve a greater portion of their lives in prison than similarly
situated adult offenders. Id. at 70.
¶ 130 Most recently, in Miller v. Alabama, 567 U.S. at ___, 132 S. Ct. 2455 (2012), the Court
held that the eighth amendment prohibited the imposition of statutorily mandated sentences
of life imprisonment without parole for juveniles convicted of homicide. Id. at ___, 132 S.
Ct. at 2469. The Court explained that the constitutional defect of such statutes was that they
divested courts of any discretion to take into account a juvenile defendant’s youth and other
traits during sentencing. Id. at ___, 132 S. Ct. at 2466.
¶ 131 Defendant argues that the firearm enhancement and consecutive sentencing statute are
unconstitutional as applied to him for two reasons. First, he contends that the 57-year
minimum sentence the court was required to impose was a de facto life sentence and
therefore violated Miller. While this argument has some facial appeal, the current state of the
law in Illinois does not support it. In People v. Gay, 2011 IL App (4th) 100009, the
defendant, a mentally ill man, was sentenced to a 97-year aggregate prison term. Id. ¶ 20. On
appeal, the defendant argued that his 97-year aggregate sentence violated the eighth
amendment because it was a de facto life sentence. The appellate court disagreed, explaining
that the defendant’s aggregate prison term was different from a sentence of life without
parole because a life sentence is “[n]ot an accumulation of sentences,” but rather “is tied to a
single conviction and is absolute in its duration for the offender’s natural life.” Id. ¶ 23; see
also People v. Reyes, 2015 IL App (2d) 120471, ¶ 23; People v. Cavazos, 2015 IL App (2d)
120171, ¶ 99; but see People v. Gipson, 2015 IL App (1st) 122451, ¶ 61 (declining to follow
Reyes and Cavazos).
¶ 132 Defendant’s second argument is that these statutes encroach on the trial court’s discretion
to impose any sentence it wants and so violate Miller. Here, defendant notes that Miller
struck down a mandatory sentencing statute. Miller, however, merely stands for the
proposition that the state cannot impose adult mandatory maximum penalties on a juvenile
offender without permitting the sentencing authority to take the defendant’s youth and other
attendant characteristics into consideration. See Cavazos, 2015 IL App (2d) 120171, ¶ 98
(noting that Miller only stands for the proposition that “ ‘a judge or jury must have the
opportunity to consider mitigating circumstances before imposing the harshest possible
penalty for juveniles’ ” (emphasis omitted) (quoting Miller, 567 U.S. at ___, 132 S. Ct. at
2475)); see also Reyes, 2015 IL App (2d) 120471, ¶ 11 (“Miller did not preclude a sentence
of life without parole for homicide offenders; it required only that the trial court first consider
the special characteristics of young offenders, such as immaturity, impetuosity, and the
failure to appreciate risks and consequences, before imposing such a sentence on a juvenile
defendant.”); People v. Pacheco, 2013 IL App (4th) 110409, ¶ 58 (“The Supreme Court did
not hold in Roper, Graham, or Miller the eighth amendment prohibits a juvenile defendant
from being subject to the same mandatory minimum sentence as an adult, unless the
mandatory minimum sentence was death or life in prison without the possibility of parole.”).
¶ 133 In People v. Banks, 2015 IL App (1st) 130985, a division of this court rejected arguments
similar to those made by defendant in the present case. As in this case, the defendant in
Banks was a juvenile convicted of first degree murder. Id. ¶ 2. And like defendant in this
case, the defendant in Banks argued that the application of the firearm enhancement statute to
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him was unconstitutional under the Roper/Graham/Miller trilogy because it resulted in a
mandatory minimum sentence of 45 years’ imprisonment. Id. ¶ 18. The court rejected this
argument, explaining:
“Unlike those cases, which involved the imposition of the death penalty (Roper)
and a mandatory life sentence without the possibility of parole (Graham and Miller)
without allowing the trial court any discretion in sentencing, the trial court in the
instant case was able to consider defendant’s age and culpability in sentencing
defendant. The trial court had the discretion to impose a sentence between 45 and 85
years.” Id. ¶ 19.
¶ 134 Until the Illinois or United States Supreme Court rules otherwise, we believe the best
course is to follow this line of cases as outlined above. Here, defendant was not subjected to
a sentencing scheme which mandated a sentence of life in prison without parole. More
importantly, consistent with Miller’s requirement that a sentencing authority retain some
discretion to consider a juvenile’s youth before imposing a severe sentence, the trial judge in
this case had discretion to impose a sentence between 57 years and life imprisonment. See
Miller, 567 U.S. at ___, 132 S. Ct. at 2475; Banks, 2015 IL App (1st) 130985, ¶ 19. We are
therefore not persuaded by defendant’s argument that his rights under the eighth amendment
were violated when he was subjected to a minimum sentence of 57 years’ imprisonment.3
¶ 135 b. Constitutionality Under Proportionate Penalties Clause
¶ 136 We next consider whether the firearm enhancement and consecutive sentencing statute,
as applied to defendant, violate the proportionate penalties clause of the Illinois constitution.
That clause provides “[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. The State contends that the proportionate penalties clause is coextensive
with the eighth amendment, and that our resolution of defendant’s eighth amendment
challenge against him thus forecloses his argument here as well. We find this argument
unavailing.
¶ 137 In People v. McDonald, the Illinois Supreme Court stated that the proportionate penalties
clause and eighth amendment are synonymous and coextensive with one another. 168 Ill. 2d
420, 455-56 (1995). The court reiterated that holding in In re Rodney H., 223 Ill. 2d 510, 518
(2006), and People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 206 (2009). However, in
People v. Clemons, the court abrogated that holding, stating:
“our conclusion in McDonald that ‘article I, section 11 was synonymous with the
cruel and unusual punishment clause of the eighth amendment’ [citation] is an
overstatement. Although a relationship may exist between the first clause of article I,
section 11, and the eighth amendment, that relationship is not entirely clear. What is
clear is that the limitation on penalties set forth in the second clause of article I,
section 11, which focuses on the objective of rehabilitation, went beyond the framers’
3
Defendant also obliquely argues that the 100-year sentence imposed by the trial court violated
Miller. While defendant’s constitutional challenge to his 100-year sentence is mooted based on our
resolution of his judicial bias claim, we note that the court arrived at its 100-year sentence as a result of
its consideration of the evidence at the sentencing hearing, not as a result of any statute or statutes
requiring the imposition of that penalty.
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understanding of the eighth amendment and is not synonymous with that provision.”
2012 IL 107821, ¶ 40.
¶ 138 Despite its holding in Clemons, however, two years later the Court again stated that the
proportionate penalties clause and eighth amendment are coextensive. See Patterson, 2014
IL 115102, ¶ 106. This line of precedents has produced inconsistent results in the appellate
court. Compare Banks, 2015 IL App (1st) 130985, ¶ 24 (quoting Rodney H., 223 Ill. 2d at
518, to hold that protections afforded by proportionate penalties clause are coextensive with
eighth amendment), and In re Isaiah D., 2015 IL App (1st) 143507, ¶ 58 (quoting Patterson,
2014 IL 115102, ¶ 106, to reject argument that, pursuant to Clemons, proportionate penalties
clause affords defendants broader protections than eighth amendment), with Gipson, 2015 IL
App (1st) 122451, ¶¶ 69-70 (rejecting argument that proportionate penalties clause is
substantively coextensive with eighth amendment and instead holding that they are
coextensive only insofar as they both apply only when a penalty has actually been imposed
on the defendant).
¶ 139 We do not believe that Patterson abrogated Clemons. Each time the Illinois Supreme
Court has stated that the proportionate penalties clause is coextensive with the eighth
amendment, it has always clarified that it means the texts are coextensive in that they both
apply only when the government has imposed a penalty on a defendant. See Patterson, 2014
IL 115102, ¶ 101 (“Under the definition of the plain language used, neither clause applies
unless a punishment or penalty has been imposed.”); Konetski, 233 Ill. 2d at 206-07 (“Our
proportionate penalties clause is coextensive with the federal constitution’s prohibition
against cruel and unusual punishment. [Citation.] Both provisions apply only to the criminal
process where the government takes direct action to inflict punishment.”); Rodney H., 223 Ill.
2d at 518 (same). Thus, if a statute does not inflict punishment, it implicates neither the
eighth amendment nor the proportionate penalties clause. However, when a punishment has
been imposed, the proportionate penalties clause provides greater protection. Clemons, 2012
IL 107821, ¶ 40. Accordingly, we must independently analyze whether defendant’s sentence
violates the proportionate penalties clause.
¶ 140 A challenge under the proportionate penalties clause “contends that the penalty in
question was not determined according to the seriousness of the offense.” People v. Sharpe,
216 Ill. 2d 481, 487 (2005). A violation may be shown where the penalty imposed is “ ‘cruel,
degrading, or so wholly disproportionate to the offense committed as to shock the moral
sense of the community.’ ” Id. (quoting People v. Moss, 206 Ill. 2d 503, 522 (2003)).
¶ 141 “To determine whether a penalty shocks the moral sense of the community, we must
consider objective evidence as well as the community’s changing standard of moral
decency.” People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008). In People v. Sharpe, 216
Ill. 2d 481 (2005), the supreme court explicitly upheld the constitutionality of the firearm
enhancement statute against a proportionate penalties clause challenge. The court explained
that “it would not shock the conscience of the community to learn that the legislature has
determined that an additional penalty ought to be imposed when murder is committed with a
weapon that not only enhances the perpetrator’s ability to kill the intended victim, but also
increases the risk that grievous harm or death will be inflicted upon bystanders.” Id. at 525.
Thus, the Illinois Supreme Court has held that subjecting defendants guilty of crimes
involving firearms to substantial mandatory minimum sentences does not shock the moral
sense of the community.
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¶ 142 This is so even though the mandatory nature of the firearm enhancements restrict the
scope of discretion which the trial courts may exercise during sentencing. In Sharpe, the
court explained that “ ‘the legislature’s power necessarily includes the authority to establish
mandatory minimum sentences, even though such sentences, by definition, restrict the
inquiry and function of the judiciary in imposing sentence.’ ” Id. (quoting People v. Dunigan,
165 Ill. 2d 235, 245 (1995)). And in any event, trial courts operating under such sentencing
regimes do retain discretion in imposing sentences. See Banks, 2015 IL App (1st) 130985,
¶ 24.
¶ 143 Defendant nevertheless argues that People v. Miller, 202 Ill. 2d 328 (2002) (Leon Miller),
commands a different result. We disagree. In Leon Miller, the juvenile defendant was
approached by two individuals who asked him to serve as a lookout. Id. at 330-31. Defendant
agreed, and one minute later the individuals opened fire, killing two people. Id. Defendant
was charged and convicted of two counts of first degree murder on an accountability theory,
despite the fact that he never handled the guns used to commit the murders and ran away
when the shots were fired. Id. After trial, the State asked the court to impose a life sentence
under the multiple murder provision of the Unified Code of Corrections, which mandated a
life sentence for defendants convicted of committing more than one murder. Id. at 335-36
(quoting 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996)). The trial court refused to do so,
explaining that it found the multiple murder statute unconstitutional as applied to the
defendant. Id. at 331-32.
¶ 144 The Illinois Supreme Court affirmed. The court began its analysis by framing the issue as
whether the multiple murder sentencing statute could be constitutionally applied “to a
juvenile convicted upon a theory of accountability.” (Emphases in original.) Id. at 337. The
court explained that because (1) the automatic transfer statute mandates that all 15-year-olds
charged with murder be tried in adult court; (2) “[t]he accountability statute (720 ILCS
5/5-2(c) (West 1996)) effectively bars courts from considering the offender’s degree of
participation in the crime by making all persons who participate in a common criminal design
equally responsible”; and (3) the sentencing statute precludes courts from considering a
defendant’s age or degree of participation in the crime, “a court never considers the actual
facts of the crime, including the defendant’s age at the time of the crime or his or her
individual level of culpability.” Id. at 340. Thus, the court held that:
“the penalty mandated by the multiple-murder sentencing statute as applied to this
defendant is particularly harsh and unconstitutionally disproportionate. We agree with
defendant that a mandatory sentence of natural life in prison with no possibility of
parole grossly distorts the factual realities of the case and does not accurately
represent defendant’s personal culpability such that it shocks the moral sense of the
community. This moral sense is particularly true, as in the case before us, where a
15-year-old with one minute to contemplate his decision to participate in the incident
and stood as a lookout during the shooting, but never handled a gun, is subject to life
imprisonment with no possibility of parole–the same sentence applicable to the actual
shooter.” Id. at 341.
The court noted, however, that its decision did not imply that such a sentence for juvenile
convicted of murder under an accountability theory would never be appropriate. Id.
¶ 145 Leon Miller is distinguishable on multiple grounds. First, we note that the court’s holding
in Leon Miller was based on the multiple-murder sentencing statute “as applied to this
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defendant.” (Emphasis added.) Id. Thus, the court did not announce a blanket rule of law, but
rather turned on the peculiar facts of the case. Second, unlike the defendant in Leon Miller,
defendant in the present case actually fired the shots after having longer than a mere minute
to contemplate his actions. Thus, the fact that defendant faced a minimum sentence of 57
years’ imprisonment cannot be described as a gross distortion of the “factual realities of the
case.” Id.
¶ 146 We also find that People v. Brown, 2015 IL App (1st) 130048, and Gipson, 2015 IL App
(1st) 122451, are distinguishable. In Brown, a juvenile defendant was convicted of
aggravated battery with a firearm and three counts of attempted first degree murder. Brown,
2015 IL App (1st) 130048, ¶ 1. The trial court sentenced the defendant to 50 years’
imprisonment, consisting of 25 years for attempted first degree murder and 25 years for
personally discharging a firearm that proximately caused great bodily harm. Id. In imposing
sentence, however, the court relied on “speculative evidence” to support finding the existence
of a “phantom aggravating factor that but for defendant’s gun jamming, defendant would
have caused more violence on the bus that day.” Id. ¶ 44. The court further held that
defendant’s sentence, which would not permit his release until he was 66 years old, did not
satisfy the constitutional requirement that all penalties serve the objective of restoring the
offender to useful citizenship. Id. ¶ 45. The court explained that “[f]actors that weigh in favor
of defendant’s rehabilitative potential include his age, family support, and the fact that
defendant was in high school” and had a limited criminal history. Id. Accordingly, the court
reduced defendant’s sentence to 31 years’ imprisonment. Id. ¶ 47.
¶ 147 Brown is distinguishable from the present case. Unlike in Brown, defendant murdered
one of his victims. Murder is recognized as the most serious offense a person can commit.
Moreover, the conclusion that defendant’s sentence did not adequately account for his
rehabilitative potential was inescapable in light of the fact that the court considered improper
aggravating factors.
¶ 148 In Gipson, the juvenile defendant was convicted of attempted murder and sentenced to a
cumulative 52-year prison term. 2015 IL App (1st) 122451, ¶ 1. The appellate court reversed
and remanded to the trial court with instructions to conduct a retroactive fitness hearing. Id.
¶ 38. The court found, however, defendant’s 52-year sentence violated the proportionate
penalties clause and therefore provided the trial court with the additional instruction that, in
the event it found that defendant was fit to stand trial, then he should be resentenced without
applying the firearm enhancement. Id. ¶¶ 69, 78.
¶ 149 Gipson is distinguishable for several reasons. First, as in Brown and unlike the present
case, the defendant in Gipson was convicted of attempted murder; he did not actually kill his
victim. Id. ¶ 1. Second, the defendant in Gipson had once been found unfit to stand trial; no
similar finding was ever entered in the present case. Third, unlike in Gipson, the facts in the
present case show that defendant planned his crime. Id. ¶ 73. Specifically, defendant met
with confederates away from the crime scene, obtained a gun and hoodie, walked to the bus
stop, looked into the bus to ensure that his target was inside, and after the crime fled and
boasted “I just laid down the murder game.”
¶ 150 Based on the foregoing, we find that the application of the consecutive sentencing statute
and firearm enhancement to defendant, resulting in a minimum sentence of 57 years’
imprisonment, does not violate the proportionate penalties clause of the Illinois Constitution.
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¶ 151 E. Mittimus Correction
¶ 152 The mittimus reflects that defendant was convicted of two counts of first degree murder
based on counts V and VI of the indictment. However, because defendant killed one victim
only, his dual murder convictions cannot stand under the one-act, one-crime doctrine. See
People v. Guest, 115 Ill. 2d 72, 103-04 (1986). Accordingly, defendant’s conviction on count
VI is vacated and the mittimus is corrected to reflect that defendant was convicted of first
degree murder (see 720 ILCS 5/9-1(a)(1) (West 2006)), two counts of aggravated battery
with a firearm, and imposition of an additional 25-year sentence as a result of the firearm
enhancement.
¶ 153 CONCLUSION
¶ 154 We affirm the decisions of the trial court in all respects, except that we vacate
defendant’s sentence and remand the case for resentencing before a different judge. On
remand, if resentencing takes place under the law as it exists at the time this opinion is filed,
the trial court may impose any sentence between 57 and 100 years’ imprisonment. However,
the new sentence may not be longer than the original sentence. See 730 ILCS 5/5-5-4(a)
(West 2014). We also correct the mittimus to reflect a conviction on one, rather than two,
murder counts.
¶ 155 Affirmed in part, vacated in part, and remanded with instructions; mittimus corrected.
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