People v. Barnes ( 2018 )

2018 IL App (5th) 140378
NOTICE
Decision filed 11/19/18. The
text of this decision may be NO. 5-14-0378
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 13-CF-590
)
DONTRIEL BARNES, ) Honorable
) Ralph R. Bloodworth III,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
Justices Chapman and Cates concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Dontriel Barnes, was convicted of armed robbery in the
circuit court of Jackson County. 720 ILCS 5/18-2(a)(2) (West 2012). Defendant, who was 17
years old at the time of the offense, was sentenced to 22 years in the Illinois Department of
Corrections, which included a mandatory 15-year enhancement for defendant’s use of a firearm,
to be followed by 3 years mandatory supervised release. On appeal, defendant argues that section
5-4.5-105 of the Unified Code of Corrections (Code), which took effect during the pendency of
this appeal and grants the trial court discretion to not impose the firearm enhancement, applies
retroactively. 730 ILCS 5/5-4.5-105 (West 2016). Defendant asks this court to vacate his 22-year
sentence and remand the cause for a resentencing hearing to afford the trial court the opportunity
to exercise its discretion as to whether the firearm enhancement should be imposed.
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Alternatively, defendant argues that if this court concludes section 5-4.5-105 is prospective only,
the imposition of the mandatory 15-year firearm enhancement is unconstitutional as applied to
defendant. For the following reasons, we vacate defendant’s sentence and remand this cause for a
resentencing hearing to afford the trial court the opportunity to exercise its discretion as to
whether the firearm enhancement should be imposed.
¶2 BACKGROUND
¶3 Defendant was convicted of armed robbery on May 1, 2014, after he robbed a gas station
in Murphysboro on December 9, 2013. 720 ILCS 5/18-2(a)(2) (West 2012). The evidence
adduced at trial revealed that defendant wore a mask and displayed an unloaded revolver to the
gas station clerk during the commission of the crime. In addition, three photographs that were
taken on November 30, 2013, were recovered on defendant’s cell phone, which depicted
defendant wearing sunglasses and holding a revolver. Another picture on defendant’s phone,
which was taken 25 minutes prior to the commission of the armed robbery, displayed the
silhouette of a person possibly holding a firearm.
¶4 At sentencing, defendant faced a prison term of 21 to 45 years. Id. § 18-2(b) (at the time
of defendant’s sentencing, armed robbery was a Class X felony punishable by 6 to 30 years’
imprisonment with a mandatory 15-year firearm enhancement). In its discretion, the trial court
imposed a 7-year sentence, which when added to the mandatory 15-year enhancement equated to
a 22-year sentence. Thereafter, defendant filed a motion to reduce sentence, which the trial court
denied.
¶5 This appeal followed.
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¶6 ANALYSIS
¶7 I. Amendment to Section 5-4.5-105 of the Code
¶8 Defendant first argues that because section 5-4.5-105 of the Code applies retroactively,
defendant’s 22-year sentence, which included a mandatory 15-year firearm enhancement, must
be vacated and remanded for a resentencing hearing to afford the trial court discretion as to
whether the firearm enhancement should be imposed. See Pub. Acts 99-69, 99-258 (eff. Jan. 1,
2016) (adding 730 ILCS 5/5-4.5-105).
¶9 While this matter was pending on appeal, the juvenile sentencing provisions of the Code
were amended. Effective January 1, 2016, the Illinois legislature enacted section 5-4.5-105 of the
Code (730 ILCS 5/5-4.5-105 (West 2016)), which provides a new sentencing scheme for
criminal defendants under 18 years of age at the time of the commission of an offense. People v.
Reyes, 2016 IL 119271, ¶ 11. The new statute requires the sentencing judge to consider several
factors in mitigation in determining the appropriate sentence for a defendant under 18 years of
age, including (1) the defendant’s impetuosity, level of maturity, and ability to consider risks and
consequences; (2) whether the defendant was subjected to outside pressures; (3) the defendant’s
home environment and any history of parental neglect, physical abuse, or other childhood
trauma; (4) the defendant’s potential for rehabilitation; (5) the circumstances of the offense;
(6) the defendant’s role in the offense; (7) whether the defendant participated in his or her
defense; (8) the defendant’s prior juvenile or criminal history; and (9) other relevant information.
730 ILCS 5/5-4.5-105(a)(1)-(9) (West 2016). In addition, the new statute provides that the
imposition of firearm enhancements is a matter within the discretion of the trial court. Id. § 5­
4.5-105(b).
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¶ 10 At issue here is whether subsection (b) under section 5-4.5-105 of the Code applies
retroactively to defendant’s case. Effective January 1, 2016, subsection (b) provides, in relevant
part:
“(b) Except as provided in subsection (c), the court may sentence the defendant to
any disposition authorized for the class of the offense of which he or she was found guilty
as described in Article 4.5 of this Code, and may, in its discretion, decline to impose any
otherwise applicable sentencing enhancement based upon firearm possession ***.” Id.
¶ 11 Our supreme court directly addressed whether this provision applies retroactively in
People v. Hunter, 2017 IL 121306. In Hunter, the State charged the defendant with aggravated
vehicular hijacking, aggravated kidnapping, and armed robbery, all while armed with a firearm.
Id. ¶ 4. Following a bench trial, the defendant was convicted on all three counts and sentenced to
concurrent terms of 21 years’ imprisonment, which included a 15-year enhancement for use of a
firearm. Similar to the instant case, the new sentencing provisions under section 5-4.5-105 of the
Code became effective during the pendency of the defendant’s appeal. Id. ¶ 46. On appeal, the
defendant argued his case should be remanded for a new sentencing hearing because the new
sentencing provisions applied retroactively. Id. ¶ 9. The appellate court concluded that the new
sentencing guidelines did not apply retroactively, and our supreme court granted the defendant’s
petition for leave to appeal. Id.
¶ 12 Relevant to this appeal, our supreme court noted that subsection (b) under section 5-4.5­
105 of the Code was silent regarding its temporal reach. Id. ¶ 52. Therefore, the court referred to
section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2016)) to determine whether the new
sentencing guidelines applied retroactively to the defendant. Hunter, 2017 IL 121306, ¶ 52. The
court held the new guidelines did not apply retroactively to the defendant, who was sentenced
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before the statute took effect. Id. In reaching this determination, our supreme court observed that
“[t]he second sentence of section 4 of the Statute on Statutes expressly provides:
‘If any penalty, forfeiture or punishment be mitigated by any provisions of a new law,
such provision may, by the consent of the party affected, be applied to any judgment
pronounced after the new law takes effect.’ ” Id. ¶ 53 (quoting 5 ILCS 70/4 (West 2016)).
¶ 13 Our supreme court observed it had previously held that under section 4 a defendant is not
eligible to be sentenced under a statutory amendment that became effective while his or her case
is pending because he or she had already been sentenced prior to the statute’s effective date. Id.
¶ 54. Our supreme court concluded that because the defendant was sentenced well before the
new juvenile sentencing provisions became effective on January 1, 2016, he was not eligible to
be sentenced under subsection (b). Id. ¶¶ 55-56. However, the court noted that where a
defendant’s sentence is vacated on appeal and the cause is remanded for resentencing, under
section 4 of the Statute on Statutes, the defendant may elect to be sentenced under the law in
effect at the time of the new sentencing hearing. Id. ¶ 54.
¶ 14 Here, defendant finds himself in the same predicament as the defendant in Hunter, as the
new juvenile sentencing provisions became effective during the pendency of defendant’s appeal
but after defendant was sentenced. Dispositive of defendant’s argument is the fact that defendant
was sentenced on July 2, 2014, well before the new juvenile sentencing provisions took effect on
January 1, 2016. Pursuant to our supreme court’s holding in Hunter, section 5-4.5-105(b) applies
prospectively only. Accordingly, we reject defendant’s argument.
¶ 15 II. Constitutionality of Firearm Enhancement as Applied to Defendant
¶ 16 Defendant next contends that the trial court’s imposition of the 15-year firearm
enhancement is unconstitutional as applied to him. Specifically, defendant argues that the
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enhancement violates (1) the eighth amendment of the United States Constitution (U.S. Const.,
amend. VIII) and (2) article I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I,
§ 11), also referred to as the proportionate penalties clause. Defendant contends that because the
proportionate penalties clause provides greater protection against unjust sentences than the
eighth amendment, defendant will use the standards of the proportionate penalties clause for
purposes of this challenge.
¶ 17 The eighth amendment of the United States Constitution prohibits cruel and unusual
punishments. U.S. Const., amend. VIII. Cruel and unusual punishments include those
punishments that are “ ‘disproportionate to the crime.’ ” People v. McKee, 2017 IL App (3d)
140881, ¶ 25 (quoting Graham v. Florida, 560 U.S. 48, 59 (2010)). The concept of
proportionality is central to the eighth amendment, and that concept is viewed less through a
historical prism than according to the evolving standards of decency that mark the progress of a
maturing society. Miller v. Alabama, 567 U.S. 460, 469 (2012).
¶ 18 Our supreme court has observed that the proportionate penalties clause of the Illinois
Constitution is coextensive with the eighth amendment of the United States Constitution. People
v. Patterson, 2014 IL 115102, ¶ 106. The proportionate penalties clause provides that “[a]ll
penalties shall be determined both according to the seriousness of the offense and with the
objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. An “as
applied” constitutional challenge requires the defendant to show that the statute at issue violates
the Illinois Constitution as applied to him. People v. Aikens, 2016 IL App (1st) 133578, ¶ 33. A
proportionality violation may be found where the penalty imposed for the offense is “cruel,
degrading, or so wholly disproportionate to the offense as to shock the moral sense of the
community.” People v. Miller, 202 Ill. 2d 328, 338 (2002) (Leon Miller). A punishment that
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constitutes “cruel, degrading, or so wholly disproportionate to the offense as to shock the moral
sense of the community” is not clearly defined because “as our society evolves, so too do our
concepts of elemental decency and fairness which shape the ‘moral sense’ of the community.”
Id. at 338-39. To determine whether a punishment shocks the moral sense of the community, we
must consider objective evidence as well as the community’s changing standard of moral
decency. Aikens, 2016 IL App (1st) 133578, ¶ 33. Put differently, we must consider “the gravity
of the defendant’s offense in connection with the severity of the statutorily mandated sentence
within our community’s evolving standard of decency.” Leon Miller, 202 Ill. 2d at 340.
¶ 19 Every statute carries a strong presumption of constitutionality. People v. Sharpe, 216 Ill.
2d 481, 487 (2005). To overcome this presumption, the challenging party must clearly establish
that the statute violates the constitution. Id. The constitutionality of a statute is a matter of law
subject to de novo review. Id. at 486-87.
¶ 20 Initially, we note that Illinois courts have repeatedly upheld the constitutionality of the
mandatory firearm enhancement statute when reviewing adult defendants’ sentences. Id. at 481,
519-21; People v. Harris, 2016 IL App (1st) 141744, ¶ 45. As our supreme court has observed:
“[I]t 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.”
Sharpe, 216 Ill. 2d at 525.
In this case, however, we are not reviewing the constitutionality of a mandatory firearm
enhancement as applied to an adult. Rather, we are reviewing the constitutionality of a
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mandatory firearm enhancement as applied to a juvenile. We note this as a stark difference in
how we undertake our analysis of defendant’s argument.
¶ 21 Turning back to the merits, the United States Supreme Court has determined that the
eighth amendment prohibits certain harsh sentences for juvenile offenders. In Roper v. Simmons,
543 U.S. 551, 574-75 (2005), the Court held that the death penalty for juvenile offenders was
unconstitutional. Thereafter, in Graham, 560 U.S. at 82, the Court held that sentencing juvenile
offenders of nonhomicide offenses to life imprisonment without the possibility of parole was
unconstitutional. In Miller, 567 U.S. at 489, the Court concluded that the eighth amendment
prohibits the mandatory sentencing of a juvenile to life in prison without the possibility of parole,
even if the juvenile was convicted of murder.
¶ 22 In each of these cases, the Supreme Court relied at least partially on the rationale that
juveniles have less moral culpability and greater rehabilitative potential than adults. In Miller, for
example, the Supreme Court observed that juveniles are constitutionally different from adults for
purposes of sentencing and, because juveniles have diminished culpability and greater prospects
for reform, they are less deserving of the most severe punishments. Id. at 471. The Miller Court
observed three significant gaps that exist between juveniles and adults:
“First, children have a lack of maturity and an underdeveloped sense of responsibility,
leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children
are more vulnerable ... to negative influences and outside pressures, including from their
family and peers; they have limited contro[l] over their own environment and lack the
ability to extricate themselves from horrific, crime-producing settings. [Citation.] And
third, a child’s character is not as well formed as an adult’s; his traits are less fixed and
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his actions less likely to be evidence of irretrievabl[e] deprav[ity].” (Internal quotation
marks omitted.) Id.
The Miller Court concluded that before a sentencing court may impose a life sentence on a
juvenile offender, it is required to “take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 480.
¶ 23 Illinois courts have also recognized that juveniles have less moral culpability and greater
rehabilitative potential than adults. In Leon Miller, the 15-year old defendant was convicted
under a theory of accountability of two murders after he agreed to serve as a lookout for one
minute to two individuals who opened fire and killed two people. Leon Miller, 202 Ill. 2d at 330­
31. The defendant was convicted despite the fact that he never handled the guns used in the
commission of the crime and ran away when the shots were fired. Id. The defendant was
sentenced to life without parole, which our supreme court found to violate the proportionate
penalties clause because the sentence “grossly distort[ed] the factual realities of the case and
[did] not accurately represent [the] defendant’s personal culpability such that it shocks the moral
sense of the community.” Id. at 341. In reaching this conclusion, our supreme court noted that,
when combined, the automatic transfer statute, the accountability statute, and the multiple-
murder sentencing statute precluded the trial court from considering the actual facts of the crime,
including the age of the defendant at the time of the offense and the defendant’s culpability. Id.
As our supreme court noted, “this case presents the least culpable offender imaginable, a 15­
year-old who had ‘about a minute from the time this plan began until the act was completed by
other persons.’ ” Id. Our supreme court explained that its decision was consistent with the
longstanding distinction made in the State of Illinois between adult and juvenile offenders, a
distinction emphasized by the reality that our state was the first to create a court system
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exclusively dedicated to juveniles. Id. Our supreme court further explained that as a society, our
state has recognized that young defendants have greater rehabilitative potential. Id. at 342.
¶ 24 More recently, our colleagues in the First District rendered a decision that is analogous to
the case before us on appeal. In Aikens, 2016 IL App (1st) 133578, the juvenile defendant was
convicted of several counts of attempted first degree murder of a peace officer, attempted first
degree murder, aggravated discharge of a firearm, and aggravated unlawful use of a weapon after
the defendant fired multiple shots at an unmarked police car. Id. ¶¶ 1-5. The defendant was
sentenced to 20 years in prison for the attempted murder convictions, plus an additional
mandatory 20-year enhancement for personally discharging a firearm, for a total of 40 years’
imprisonment. Id. ¶ 1. On appeal, the defendant argued, inter alia, that the 20-year mandatory
firearm enhancement violated the eighth amendment and the proportionate penalties clause. Id.
¶ 32. The First District reversed and remanded for resentencing after finding the defendant’s
sentence violated the proportionate penalties clause as applied to him in that it “shocks our
evolving standard of moral decency.” Id. ¶ 37. In reaching this decision, the court noted that the
juvenile defendant was young, the defendant had no prior criminal history, and the defendant had
great rehabilitative potential. In addition, the court noted that while the crime was serious, no one
was injured. The court further explained:
“We believe that this decision is consistent with the evolving standards for
juvenile offenders in this State as evidenced by recent changes that have been made in the
way that juveniles are tried and sentenced. See Pub. Act 99-69, § 10 (eff. Jan. 1, 2016)
(adding 730 ILCS 5/5-4.5-105 (West 2014)) ***. Now, when a person commits an
offense and is under 18 years of age at the time of the offense, there are additional factors
the trial court must consider in sentencing that offender, including age, impetuosity, and
10
level of maturity, and the trial court ‘may, in its discretion, decline to impose any
otherwise applicable sentencing enhancement based upon firearm possession.’ Pub. Act
99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(b) (West 2014)). *** While
these provisions do not apply retroactively, they are indicative of a changing moral
compass in our society when it comes to trying and sentencing juveniles as adults.
[Citation.] We therefore reverse defendant’s sentence and remand for resentencing in line
with the new sentencing scheme, without imposition of the mandatory enhancement.
[Citation.]” Id. ¶ 38.
¶ 25 Similar to Aikens, we find that the sentencing scheme employed by the trial court, as
applied to defendant, violates the proportionate penalties clause of the Illinois Constitution, as it
shocks our community’s evolving standard of moral decency. See People v. Hernandez, 382 Ill.
App. 3d 726, 727 (2008) (“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.”). The record in this case shows that defendant was 17 years old when he
committed the offense of armed robbery. Defendant had no prior criminal history. The parties do
not dispute that defendant did not cause physical harm to anyone during the commission of the
offense, or that the gun defendant displayed was unloaded. We find it important to note that in
reaching our decision, we are not downplaying the seriousness of defendant’s offense. We
recognize the serious psychological harm that can be inflicted as a result of defendant’s decision
to display a gun, loaded or not. However, at sentencing, defendant expressed remorse for his
actions and empathized with the gas station clerk and the trauma she experienced as a result of
the incident. The court acknowledged defendant’s apology and thanked defendant for taking
responsibility for his actions, in particular for apologizing to the gas station clerk. The court
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further noted defendant’s rehabilitative potential, as defendant has supportive people in his life
and has attempted to better himself and help others. Defendant’s rehabilitative potential is also
supported by the fact that defendant requested to be placed in drug and alcohol treatment at
sentencing.
¶ 26 Since the trial court in this case imposed the mandatory 15-year firearm enhancement, the
law has evolved to afford the trial court discretion as to whether the enhancement should be
imposed. It is clear from the string of cases cited above that the moral compass is changing with
regard to juveniles in the justice system. See Leon Miller, 202 Ill. 2d at 339 (“[A]s our society
evolves, so too do our concepts of elemental decency and fairness which shape the ‘moral sense’
of the community.”). The trial court considered multiple factors in arriving at its sentence.
Presumably, the court was aware of defendant’s lesser moral culpability and greater
rehabilitative potential when compared to an adult offender, as it discretionarily sentenced
defendant to 7 years for the armed robbery, only one year above the low end of the sentencing
range of 6 to 30 years for that crime. 720 ILCS 5/18-2(b) (West 2012). The court’s imposition of
the mandatory 15-year firearm enhancement, in effect, required the court to impose a sentence
that failed to account for defendant’s criminal history and rehabilitative potential. We conclude
this enhancement violates our community’s evolving standard of moral decency.
¶ 27 As the Aikens court concluded, we find our decision is consistent with the evolving
standards for juvenile offenders in this state as evidenced by the recent changes that have been
made in the manner in which juveniles are tried and sentenced. See Pub. Act 99-69, § 10 (eff.
Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105); Aikens, 2016 IL App (1st) 133578, ¶ 38. Now,
when a person commits a criminal offense and is under 18 years of age at the time of the offense,
the trial court must consider certain factors in sentencing the offender, including the person’s
12
age, maturity, impetuosity, background, and rehabilitative potential. 730 ILCS 5/5-4.5-105(a)
(West 2016); Aikens, 2016 IL App (1st) 133578, ¶ 38. Moreover, the trial court “may, in its
discretion, decline to impose any otherwise applicable sentencing enhancement based upon
firearm possession.” 730 ILCS 5/5-4.5-105(b) (West 2016); Aikens, 2016 IL App (1st) 133578,
¶ 38. Although these provisions do not apply retroactively, “they are indicative of a changing
moral compass in our society when it comes to trying and sentencing juveniles as adults.”
Aikens, 2016 IL App (1st) 133578, ¶ 38.
¶ 28 CONCLUSION
¶ 29 For the foregoing reasons, we find the trial court’s imposition of the mandatory 15-year
firearm enhancement, as applied to defendant, violates the proportionate penalties clause of the
Illinois Constitution, as it shocks our evolving standard of moral decency. Accordingly, we
vacate the trial court’s sentence and remand this cause for a resentencing hearing in line with the
new sentencing scheme (730 ILCS 5/5-4.5-105 (West 2016)), without imposition of the
mandatory enhancement.
¶ 30 Vacated and remanded with directions.
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2018 IL App (5th) 140378 NO. 5-14-0378
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 13-CF-590
)
DONTRIEL BARNES, ) Honorable
) Ralph R. Bloodworth III,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
Opinion Filed: November 19, 2018
______________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Melissa A. Chapman, J., and
Honorable Judy L. Cates, J.,
Concur
______________________________________________________________________________
Attorneys James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy
for Defender, Alexander G. Muntges, Assistant Appellate Defender, Office of
Appellant the State Appellate Defender, First Judicial District, 203 N. La Salle
Street, 24th Floor, Chicago, IL 60601
______________________________________________________________________________
Attorneys Hon. Michael Carr, State’s Attorney, Jackson County Courthouse,
for 1001 Walnut Street, Murphysboro, IL 62966; Patrick Delfino, Director,
Appellee Patrick D. Daly, Deputy Director, Kelly M. Stacey, Staff Attorney,
Office of the State’s Attorneys Appellate Prosecutor, 730 East Illinois
Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
______________________________________________________________________________