People v. Nieto , 2020 IL App (1st) 121604-B ( 2020 )

2016 IL App (1st) 121604-BNo. 1-12-1604
Opinion filed June 30, 2020.
Second Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 06 CR 4475
)
MICHAEL NIETO, ) The Honorable
) Rosemary Grant Higgins,
Defendant-Appellant. ) Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶1 Defendant Michael Nieto appeals from the trial court’s order summarily dismissing his
pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2012)). On appeal, defendant argues that his sentence is unconstitutional as applied under the
eighth amendment to the United States Constitution (U.S. Const., amend. VIII), and Illinois’
proportionate penalties clause (Ill. Const. 1970, art. I, § 11). In our original opinion, we vacated
defendant’s sentence and remanded for resentencing pursuant to Miller v. Alabama, 567 U.S.
460 (2012), and Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016). We affirmed the
judgment in all other respects.
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¶2 Four years later, our supreme court denied the State’s petition for leave to appeal but
directed us to vacate our prior judgment and
“consider the effect of this Court’s opinions in People v. Buffer, 2019 IL 122327, and
People v. Holman, 2017 IL 120655, on the issue of whether defendant’s sentence
constitutes a de facto life sentence in violation of the Eighth Amendment and Miller v.
Alabama, 567 U.S. 460 (2012), and determine if a different result is warranted.” People
v. Nieto, No. 120826 (Ill. Mar. 25, 2020) (supervisory order).
Having already vacated our prior judgment, we now consider the matter in light of Buffer and
Holman and find that the same result is warranted. 1
¶3 I. BACKGROUND
¶4 A. Trial
¶5 The evidence presented at defendant’s jury trial generally showed that on July 14, 2005,
defendant, age 17, was riding in a black Ford Expedition with three other Latin Kings. While in a
residential neighborhood, the young men encountered a red Jeep Cherokee whose occupants,
victim Richard Soria and victim Israel Fernandez, allegedly used a sign disrespecting the Latin
Kings. The Ford chased the Jeep. Ultimately, defendant, the front-seat passenger, shot at the
Jeep, fatally shooting Soria in the head and injuring Fernandez. Defendant subsequently told his
brother-in-law that defendant had just “lit up some flakes” and that one victim received a “dome
shot.” The jury found defendant guilty of the first degree murder of Soria and the aggravated
battery with a firearm of Fernandez. Additionally, the jury found that defendant personally
discharged a firearm that proximately caused Soria’s death.
1
Justice Coghlan has replaced Justice Mason, who retired while the State’s appeal was pending.
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¶6 B. Sentencing
¶7 The presentence investigative report (PSI) stated, among other things, that defendant’s
highest level of education was the eighth grade. He was expelled from his freshman year of high
school for fighting. In 2006, defendant failed the GED exam but planned to retake it and earn a
business degree. Although defendant was unemployed, he had previously done some remodeling
work and sold drugs to support himself.
¶8 According to the PSI, defendant stated that his father was in poor health, having been
shot and stabbed at various times, and had been incarcerated for defendant’s entire life.
Defendant also stated that he was primarily raised by his maternal grandmother because his
mother was a drug addict. For two years, defendant and his mother lived with her boyfriend. Her
boyfriend, however, decided he did not want defendant to live with them. As a result, defendant
lived with his paternal grandfather in Texas, where he remained until 2002. At that time,
defendant’s mother summoned him back to Chicago due to his grandmother’s poor health.
Defendant received counseling after his grandmother’s death and believed that he could benefit
from further counseling but had not requested it because it was “too much trouble.” Defendant
subsequently lived with friends or on his own. Defendant also reported that his only friend
happened to be a gang member with a criminal record. We note that defendant’s brother-in-law
testified that at the time of the offense, defendant occasionally lived with his family.
¶9 Defendant, who smoked marijuana daily, had committed armed robbery, attempted
robbery, and possession of cannabis as a minor. Tragically, he had pending charges of
involuntary manslaughter and reckless discharge of a firearm for accidentally killing his younger
brother, Elias Nieto, on December 24, 2005, after the present offense.
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¶ 10 At sentencing, Detective Robert Girardi testified he learned that defendant possessed a
gun that jammed and then discharged, accidentally shooting Elias. Defendant held Elias’ hand on
the way to the hospital and unsuccessfully tried to resuscitate him. Detective Girardi was
informed that defendant had asked his mother to come to the police station, but she refused to see
him. Following the detective’s testimony, the State presented the victim impact statements of
Soria’s father, sister, and brother-in-law. The State argued that defendant deserved the maximum
sentence available, while defense counsel argued that even the aggregate minimum sentence of
51 years would ensure that defendant would not be released until he was almost 70 years old.
¶ 11 The trial court stated that it considered all the evidence, arguments, and defendant’s
offenses. In aggravation, the court found that defendant shouted gang slogans and used a firearm
belonging to his gang to fire multiple times at unarmed victims, who were Satan Disciples.
Additionally, no serious provocation was involved. Afterward, defendant told fellow gang
members that he “lit up some flakes.” The court also found that defendant and his companions
used police scanners to get information and avoid prosecution. The court further found that not
only was defendant’s criminal conduct likely to recur, but it did recur, given the shooting of
Elias. The court also observed that defendant blamed Elias for defendant’s own decision to tell
the police that Satan Disciples shot Elias, which potentially caused the police to pursue rival
gang members. Nonetheless, the court recognized defendant’s “considerable remorse for his
brother’s death and regret at what he considered to be an accidental shooting.”
¶ 12 With respect to gang activity, the court considered deterrence:
“I do find that his ongoing criminal activity is an indication to this court that his
gang, the Latin Kings, and the Satan Disciples as well, should know that this sentence is
necessary to deter others from committing similar crimes. The use of gangs and gang
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violence for revenge, either on the Satan Disciples’ part or on the Latin Kings’ as a
consequence of this action or Mr. Nieto’s action.”
The court also rejected defense counsel’s suggestion that defendant lacked the opportunity to
receive therapy. Instead, the court found the PSI showed he had the opportunity but decided it
was too much trouble to take advantage of. The court further stated, “[h]is character and attitude
as displayed over the course of his life does not indicate to me significant rehabilitative
potential.”
¶ 13 With that said, the court also stated as follows:
“I have taken into consideration your young age. I have taken into consideration
the fact that everybody, no matter what crimes they commit, can do something to change
their lives. You will have to do that something, Mr. Nieto, in the Illinois Department of
Corrections. But you can do something. Perhaps you can work with the gangs there and
somehow rectify the wrongs you did when you committed the murder of Richard Soria,
[the aggravated battery with a firearm of] Israel Fernandez, and inadvertently the death of
your own brother.
You can change it by pointing out to those people who perhaps will be able to
someday walk the streets and advise them and work with the programs in the Illinois
Department of Corrections to change their lives. You can be a pivotal person in that
change if you are willing to do that. I do believe that there is something good in you. I
don’t believe that on the streets you are capable of doing that good. I believe that the
influence of the gangs and the strength and control they had over you in addition to your
character did not permit you the opportunities that you will have in the Illinois
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Department of Corrections to help change somebody else’s life and maybe save a life or
two.
I believe that when you are shaking your head you are doing it in a positive way,
and that you can do something positive for your mother, for your brother, and rectify his
death and somehow make good on that.”
The court sentenced defendant to 35 years in prison for first degree murder, 25 years for the
personal discharge of a firearm, and 18 years for aggravated battery with a firearm, all to be
served consecutively for a total of 78 years.
¶ 14 Defendant moved for the court to reconsider, given that he was only 17 years old on the
date of the offense and would be required to serve 75.3 years of his sentence after receiving
sentencing credit. Defendant argued that his sentence did not adequately reflect his potential for
rehabilitation and restoration to useful citizenship. Furthermore, defendant argued that recent
studies showed long prison sentences do not affect deterrence and that the court’s statement
regarding sending a message to gang members was against the prevailing academic view. The
court denied defendant’s motion.
¶ 15 C. Direct Appeal
¶ 16 We affirmed the judgment on direct appeal, rejecting, among other things, defendant’s
assertion that his sentence was excessive. People v. Nieto, No. 1-09-0670 (2011) (unpublished
order under Illinois Supreme Court Rule 23). Specifically, defendant argued that his 78-year
sentence was the equivalent of a life sentence and negated the possibility of restoring him to
useful citizenship. We stated, “[t]here is no dispute that this young man represents a rather tragic
figure and that the arc of his life has been unredeemably sad.” Nonetheless, we adhered to the
legal presumption that the trial court considered all mitigating evidence, absent any contrary
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indication. We did not, however, question whether the trial court was able to discern what factors
were aggravating and mitigating.
¶ 17 D. Petition Under the Act
¶ 18 On February 21, 2012, defendant filed a pro se petition under the Act, raising several
claims not at issue here. The trial court summarily dismissed defendant’s petition on April 5,
2012, and defendant filed a timely notice of appeal. Subsequently, however, the United States
Supreme Court held in Miller, 567 U.S. at 470, 476, 479, that the eighth amendment prohibits
sentencing schemes that mandate the imposition of life sentences without parole even on
juveniles who commit homicide. This is because mandatory life sentences prevent a trial court
from considering the ways in which juveniles are constitutionally different from adults. Id. at
474. This decision in Miller followed two other landmark cases involving sentencing
requirements for juvenile offenders. Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding that
the eighth amendment prohibits a trial court from imposing the death penalty where the offender
was under 18 years of age when the offense was committed); Graham v. Florida, 560 U.S. 48,
74 (2010) (prohibiting the imposition of a life sentence without parole on juveniles who did not
commit homicide). On appeal, defendant asserts only that his sentence violates Miller.
¶ 19 II. ANALYSIS
¶ 20 A. The Act
¶ 21 The Act provides a method by which persons under criminal sentence in this state can
assert that their convictions were the result of a substantial denial of their rights under the United
States Constitution, the Illinois Constitution, or both. People v. Tate, 2012 IL 112214, ¶ 8. The
Act’s forfeiture rule, however, provides that “[a]ny claim of substantial denial of constitutional
rights not raised in the original or an amended petition is waived.” (Internal quotation marks
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omitted.) People v. Williams, 2015 IL App (1st) 131359, ¶ 14 (quoting 725 ILCS 5/122-3 (West
2012)). This rule is more than a suggestion, and appellate courts generally may not overlook
forfeiture caused by a defendant’s failure to include an issue in his petition. Id.¶ 22 B. Forfeiture
¶ 23 Defendant has conceded on appeal that he did not raise this as-applied constitutional
challenge in his petition, which was filed prior to Miller. He also contends, however, that this
particular claim is not subject to forfeiture. In our original opinion, we agreed, notwithstanding
the State’s argument to the contrary. Although the supreme court’s mandate did not direct us to
reconsider our prior finding that forfeiture does not apply, we observe that the opinions issued
over the last four years would not have led us to a different determination.
¶ 24 1. Davis
¶ 25 Just as we did when addressing forfeiture in our initial opinion, we begin our tortuous
journey with People v. Davis, 2014 IL 115595, a case that does not discuss forfeiture. There, the
defendant asserted, in a motion for leave to file a successive petition under the Act, that his
mandatory life sentence was unconstitutional. The trial court, however, denied leave. Id. ¶ 9.
While his appeal was pending, the decision in Miller was issued. Id. ¶ 10. The appellate court
determined that Miller applied and granted the defendant relief. Id.
¶ 26 Before the supreme court, the defendant argued he could challenge, in a collateral
proceeding, the statutory scheme requiring him to be sentenced to natural life in prison for a
crime committed as a juvenile because Miller rendered his sentence void. Id. ¶¶ 4, 24. Our
supreme court found that while a statute is void ab initio where facially unconstitutional, the
sentencing statute requiring the defendant to be sentenced to natural life in prison was not
facially unconstitutional because it could be validly applied to adults. Id. ¶¶ 5, 25, 27, 30.
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¶ 27 Nonetheless, the court concluded that the mandatory term of natural life without parole
was unconstitutional as applied to this juvenile defendant. Id. ¶ 43. Additionally, Miller applied
retroactively to the defendant’s collateral proceeding because Miller created a new substantive
rule. Id. ¶¶ 34, 38. Specifically, Miller placed a particular class of persons covered by the statute
beyond the State’s power to impose a particular category of punishment. Id. ¶ 39. The supreme
court also found the defendant established cause for not raising the claim in an earlier proceeding
because Miller’s new substantive rule was not previously available. Id. ¶ 42.
¶ 28 2. Thompson
¶ 29 The following year, our supreme court issued its decision in People v. Thompson, 2015
IL 118151. There, the defendant was convicted of two counts of first degree murder, committed
when he was 19 years old, and was sentenced to natural life in prison. Id. ¶¶ 6-7. In contrast to
the defendant in Davis, defendant Thompson’s petition, filed pursuant to section 2-1401 of the
Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)), did not challenge the
constitutionality of his sentence (Thompson, 2015 IL 118151, ¶¶ 13-14). The petition was
dismissed on the State’s motion, and the defendant appealed, arguing for the first time that his
sentence was unconstitutional as applied under Miller. Id. ¶¶ 15-17.
¶ 30 Before the supreme court, the defendant recognized that Miller expressly applied to
minors under 18 years of age but argued that Miller’s policy concerns applied with equal force to
a 19-year-old. Id. ¶ 21. Additionally, the defendant argued that because his as-applied
constitutional challenge constituted a challenge to a void judgment, he could raise it at any time.
Id. ¶ 30.
¶ 31 Our supreme court observed that judgments are void where jurisdiction is lacking or
where a judgment is based on a facially unconstitutional statute, which is void ab initio. Id.
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¶¶ 31-32. The defendant’s as-applied challenge, however, fit within neither category. Id. ¶ 34.
Additionally, the supreme court rejected the defendant’s assertion that it was illogical to permit a
defendant to raise facial constitutional challenges to a sentence at any time but not as-applied
challenges. Id. ¶¶ 35-36.
¶ 32 A facial challenge requires demonstrating that a statute is unconstitutional under any set
of facts. Id. ¶ 36; but cf. People v. Harris, 2018 IL 121932, ¶ 53 (characterizing the defendant’s
contention that Miller should extend to all young adults under age 21 as a facial challenge). In
contrast, an as-applied challenge requires a showing that the statute is unconstitutional under the
specific circumstances of the challenging party. Thompson, 2015 IL 118151, ¶ 36. As a result, “it
is paramount that the record be sufficiently developed in terms of those facts and circumstances
for purposes of appellate review.” Id. ¶ 37.
¶ 33 The supreme court found the record contained neither information about how science on
juvenile maturity and brain development applied to the defendant’s case, nor any factual
development of whether Miller’s rational should be extended to minors over 18 years old. Id.
¶ 38. Accordingly, “defendant forfeited his as-applied challenge to his sentence under Miller by
raising it for the first time on appeal.” Id. ¶ 39. This rationale would suggest that a defendant
may overcome forfeiture where the record contains all facts necessary to review his as-applied
challenge, raised for the first time on appeal.
¶ 34 Moreover, the supreme court rejected the defendant’s reliance on People v. Luciano,
2013 IL App (2d) 110792, and People v. Morfin, 2012 IL App (1st) 103568. Presumably,
defendant Thompson relied on those cases because, in each instance, the defendant obtained
relief where raising Miller for the first time on appeal. See People v. Thompson, 2014 IL App
(1st) 121729-U, ¶¶ 16, 18, 20-21.
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¶ 35 In Luciano, the defendant, who committed murder at age 17, argued for the first time on
appeal from the denial of his petition filed under the Act that his life sentence was
unconstitutional as applied under Miller. Luciano, 2013 IL App (2d) 110792, ¶¶ 41, 46. The
reviewing court found, contrary to Thompson, that even an as-applied sentencing challenge could
be raised at any time. Id. ¶¶ 41, 46-48. The court ultimately granted the defendant relief. Id. ¶ 89.
Additionally, the reviewing court in Morfin determined that Miller applied retroactively,
although apparently, the State did not argue forfeiture in that case. Morfin, 2012 IL App (1st)
103568, ¶¶ 11, 20, 56.
¶ 36 Despite that defendant Thompson relied on Luciano to support his contention that he
could raise his as-applied challenge for the first time on appeal, as defendant Luciano did, our
supreme court did not state that Luciano was wrong in that regard. Instead, Thompson
distinguished Luciano and Morfin on their merits: specifically, the defendants in those cases
were minors, whereas the defendant in Thompson was not. See Thompson, 2015 IL 118151, ¶ 43.
We further observe that while Thompson found the appellate court’s holdings were consistent
with Davis’ determination that Miller applies retroactively (id. ¶ 42), forfeiture presents a distinct
legal issue. See, e.g., People v. Reed, 2014 IL App (1st) 122610, ¶ 94 (addressing forfeiture and
retroactivity as separate issues). 2 When considered as a whole, Thompson implies that forfeiture
does not apply to juveniles’ as-applied eighth amendment challenges under Miller,
notwithstanding the general rule prohibiting as-applied challenges raised for the first time on
appeal.
2
Retroactivity may, as a practical matter, preclude a finding of forfeiture or waiver. See, e.g.,
In re Rolandis G., 232 Ill. 2d 13, 28-29 (2008) (no forfeiture on direct appeal when new rule announced
after the appeal was filed); see also People v. Stechly, 225 Ill. 2d 246, 268 (2007) (same); People v.
Craighead, 2015 IL App (5th) 140468, ¶ 17 (finding the defendant showed cause and prejudice with
regard to the Miller claim raised in a successive petition under the Act because Miller applies
retroactively).
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¶ 37 3. Montgomery
¶ 38 The United States Supreme Court in Montgomery then indicated that state courts must
give Miller effect in collateral proceedings. The Court, like our supreme court in Davis, held that
Miller announced a substantive rule, which courts must apply retroactively. Montgomery, 577
U.S. at ___, 136 S. Ct. at 732. Specifically, substantive rules set forth categorical constitutional
guarantees that place certain laws and punishments beyond the State’s power to impose. Id. at
___, 136 S. Ct. at 729. The Court found that while Miller did not bar punishment for all juvenile
offenders, it did bar life without parole for all but the rarest juvenile offender and, consequently,
was substantive. Compare Id. at ___, 136 S. Ct. at 734, with Miller, 567 U.S. at 483 (“Our
decision does not categorically bar a penalty for a class of offenders or type of crime—as, for
example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain
process—considering an offender’s youth and attendant characteristics—before imposing a
particular penalty.”). Additionally, the Court found that Miller’s procedural component did not
change the result, as substantive legal changes may, on occasion, be attended by a procedure
permitting a prisoner to demonstrate that he falls within the category of persons no longer subject
to punishment. Montgomery, 577 U.S. at ___, 136 S. Ct. at 734-35.
¶ 39 Moreover, when a new substantive rule of constitutional law controls a case’s outcome,
state collateral review courts must give the rule retroactive effect. Id. at ___, 136 S. Ct. at 729. A
court lacks authority to leave in place a conviction or sentence that violates a substantive rule,
regardless of whether the judgment became final before the rule was announced. Id. at ___, 136
S. Ct. at 731. The Court further stated, “[i]f a State may not constitutionally insist that a prisoner
remain in jail on federal habeas review, it may not constitutionally insist on the same result in its
own postconviction proceedings.” Id. at ___, 136 S. Ct. at 731.
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¶ 40 Our original opinion found that after Davis and Montgomery, Miller clearly applies
retroactively to collateral proceedings. We also found, however, that Thompson and Montgomery
suggested that Illinois’ procedural rules regarding forfeiture could not be applied to juvenile
defendants raising Miller claims, emphasizing Montgomery’s unconditional finding that state
courts lacked authority to leave intact a sentence that violates Miller.
¶ 41 4. Merriweather
¶ 42 Following our initial decision in this case, the Fourth District of this court disagreed. In
People v. Merriweather, 2017 IL App (4th) 150407, ¶¶ 5, 14, the juvenile offender asserted for
the first time on appeal from the denial of leave to file a successive postconviction petition that
his 70-year sentence for first degree murder was a de facto life sentence that was unconstitutional
as applied to him. The State argued, however, that the defendant could not first raise this as-
applied constitutional challenge on appeal, and the reviewing court agreed. Id. ¶ 14. The court,
relying on Thompson, noted the crucial differences generally observed between facial and as-
applied challenges and disagreed with our original determination that Thompson’s treatment of
Luciano and Morfin supported overlooking forfeiture. Id. ¶¶ 15-19. The court did not, however,
acknowledge Montgomery’s strongly worded statement that courts lack the authority to leave in
place a sentence that violates Miller. See Montgomery, 577 U.S.at ___, 136 S. Ct. at 731.
Furthermore, Merriweather did not identify any area in which the record before it was lacking.
Consequently, we are not persuaded by Merriweather.
¶ 43 5. Holman
¶ 44 After Merriweather was decided, our supreme court issued People v. Holman, 2017 IL
120655. There, the State argued that the defendant forfeited his as-applied Miller claim by,
among other things, failing to raise it in his motion for leave to file a successive petition. Id. ¶ 27.
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The supreme court agreed with the defendant’s contention that the State had forfeited any
forfeiture under the facts of that case but added that it would nonetheless have reached the merits
of his claim. Id. ¶¶ 28-29.
¶ 45 The supreme court noted the differences between facial and as-applied challenges, but
found that in Davis, the supreme court had “excused the defendant’s failure to raise an as-applied
Miller claim sooner because the record was sufficiently developed to address that type of claim.”
Id. ¶¶ 29-31. We note that Davis did not provide the explanation offered in Holman. We also
note that neither Davis, nor Holman’s explanation of Davis, used the word forfeiture.
¶ 46 In any event, Holman found that “Thompson instructs that a defendant must present an
as-applied constitutional challenge to the trial court in order to create a sufficiently developed
record. Davis creates a very narrow exception to that rule for an as-applied Miller claim for
which the record is sufficiently developed for appellate review.” Id. ¶ 32. Because all necessary
facts were in the record, and in the interests of judicial economy, the supreme court chose to
address the merits of the defendant’s claim. Id.
¶ 47 This would seemingly suggest that forfeiture does not apply to a Miller claim where the
record is sufficiently developed. Unfortunately, Holman expressly declined to resolve the
appellate court’s dispute regarding whether forfeiture applies in those circumstances. Id. ¶ 32
n.5.; but cf. People v. Buffer, 2019 IL 122327, ¶ 29 (stating that clear, uniform, predictable,
constitutional standards are especially desirable in the context of the eighth amendment).
Consequently, Holman is a wash when it comes to forfeiture.
¶ 48 Under the present state of case law, we abide by our original determination. Miller was
issued only after the circuit court dismissed defendant’s petition and the record is sufficiently
complete to review defendant’s claim. We can conceive of no policy to be furthered by finding
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forfeiture occurred here. See also People v. Warren, 2016 IL App (1st) 090884-C, ¶¶ 48-49
(finding that the reviewing court could grant the defendant relief despite raising his Miller
challenge for the first time on appeal from denial of leave to file his successive postconviction
petition). We now address the merits of defendant’s claim.
¶ 49 C. Applying Miller
¶ 50 1. The Original Opinion
¶ 51 When we issued our original opinion, several Miller-related questions had not been
settled. We nonetheless found that a juvenile defendant’s sentences may cumulatively constitute
a de facto life sentence under the eighth amendment. See People v. Gipson, 2015 IL App (1st)
122451, ¶ 61. We also determined that following Montgomery, the requirements of Miller
applied to both mandatory and discretionary life sentences. Furthermore, we determined that
defendant’s cumulative 78-year sentence constituted a discretionary, de facto life sentence, while
noting that even the minimum cumulative sentence would have been 51 years in prison. 3 Finally,
we found that where the record affirmatively shows that the trial court, in imposing a life
sentence on a juvenile, failed to comprehend the ways in which juveniles are constitutionally
different from adults, the defendant is entitled to relief. More specifically, we found that while a
trial court is not required to expressly make findings as to each youth-related factor identified by
Miller, a defendant is entitled to relief where the record affirmatively indicates that the trial court
has deviated from the principles discussed therein.
3
Defendant’s first degree murder conviction carried a sentencing range of 20 to 60 years. 730
ILCS 5/5-8-1(a)(1)(a) (West 2006). That conviction was also subject to a mandatory, consecutive firearm
enhancement of 25 years. Id. § 5-8-1(a)(1)(d)(iii). In addition, defendant’s Class X aggravated battery
conviction required a sentence of between 6 and 30 years in prison. 720 ILCS 5/12-4.2(a)(1), (b) (West
2006). Furthermore, defendant was required to serve consecutive sentences. See 730 ILCS 5/5-8-4(a)
(West 2006) (stating that “[t]he court shall 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”).
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¶ 52 2. Subsequent Illinois Supreme Court Holdings
¶ 53 After our opinion was issued, the Illinois Supreme Court held in People v. Reyes, 2016 IL
119271, ¶ 9 (per curiam), that “sentencing a juvenile offender to a mandatory term of years that
is the functional equivalent of life without the possibility of parole constitutes cruel and unusual
punishment in violation of the eighth amendment.” Thus, Reyes confirmed that Miller applies to
de facto life sentences. The supreme court subsequently concluded in Holman that “Miller
applies to discretionary sentences of life without parole for juvenile defendants” and found that
the trial court must specifically consider the characteristics of youth mentioned in Miller.
Holman, 2017 IL 120655, ¶¶ 40, 43-44. Finally, Buffer succinctly set forth what a juvenile
offender must do to prevail under Miller: The defendant must show that (1) he “was subject to a
life sentence, mandatory or discretionary, natural or de facto,” and (2) the sentencing court failed
to consider the unique characteristics attending youth. Buffer, 2019 IL 122327, ¶ 27. The
supreme court further clarified that a sentence of 40 years or greater constitutes a de facto life
sentence without parole. Id. ¶ 40.
¶ 54 3. Defendant’s Sentencing Hearing
¶ 55 Following Buffer, defendant’s cumulative 78-year sentence was indisputably a life
sentence. Additionally, the record shows that the sentencing court failed to understand and
consider the unique characteristics attending youth.
¶ 56 Life in prison without parole is disproportionate unless the juvenile defendant’s crime
reflects irreparable corruption. Montgomery, 577 U.S. at ___, 136 S. Ct. at 726. Sentencing
courts must consider a child’s diminished culpability as well as his heightened capacity for
change. Id. at ___, 136 S. Ct. at 726. Children are immature, irresponsible, reckless, impulsive,
and vulnerable to negative influence. Miller, 567 U.S. at 471. Additionally, they lack control
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over their environment and the ability to extricate themselves from crime-producing
circumstances. Id. Because a juvenile’s character is not well formed, his actions are less likely to
demonstrate irretrievable depravity. Id. It follows that youth diminishes penological
justifications: (1) reduced blameworthiness undermines retribution, (2) impetuosity undermines
deterrence, and (3) ordinary adolescent development undermines the need for incapacitation. Id.
at 472-73. Additionally, life without parole entirely negates the possibility of rehabilitation. Id. at
473.
¶ 57 Consequently, “Miller requires that before sentencing a juvenile to life without parole,
the sentencing judge take into account ‘how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.’ ” Montgomery, 577 U.S. at
___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at 480).
¶ 58 While we do not fault the trial court for failing to apply principles of law and science that
had not yet been adopted by the Supreme Court, the trial court’s findings do not imply that it
believed defendant was the rarest of juveniles whose crime showed that he was permanently
incorrigible. The court clearly found that for the foreseeable future, defendant was likely to
engage in further criminal conduct due to the Latin Kings’ influence over him and the tragic
shooting of his brother. Given juveniles’ susceptibility to peer pressure and recklessness, this is
hardly surprising. Yet, susceptibility to peer pressure and recklessness erode with age. Indeed,
the trial court found that in the future, defendant could do something positive. Specifically, he
could change his life and even help other gang members change their ways, albeit in prison.
Additionally, the court found defendant’s sentence was necessary to deter not only him, but other
gang members. We now know, however, that defendant’s sentence is not likely to deter anyone.
See Id. at ___, 136 S. Ct. at 733 (observing that deterrence is diminished in juvenile sentencing
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because juveniles’ recklessness, immaturity and impetuosity make them less likely to consider
possible punishment).
¶ 59 As we recognized on direct appeal, the trial court expressly considered defendant’s
“young age.” See also People v. Holman, 2016 IL App (5th) 100587-B, ¶ 43 (observing that we
presume the court considers mitigating evidence before it). With that said, the record shows that
the court did not consider the corresponding characteristics of defendant’s youth.
¶ 60 In support of defendant’s sentence, the State notes the aggravating factors found by the
trial court, defendant’s prior convictions, the unsatisfactory termination of probation, the death of
his brother, his gang violence, his pride in announcing that he “lit up some flakes” and “hit a
dome shot,” his use of police scanners and his decision to shoot unarmed victims. Yet,
examining these factors through the lenses of Miller may have led to a shorter sentence.
¶ 61 Under these circumstances, we vacate defendant’s sentence and remand for a new
sentencing hearing. See Buffer, 2019 IL 122327, ¶ 47. In light of our determination, we need not
consider defendant’s challenge under Illinois’ proportionate penalties clause. We also affirm the
trial court’s dismissal of the claims raised in defendant’s petition, as he has abandoned those
claims.
¶ 62 III. CONCLUSION
¶ 63 For the foregoing reasons, we vacate defendant’s sentence and remand for resentencing.
The judgment is affirmed in all other respects.
¶ 64 Affirmed in part and vacated in part.
¶ 65 Cause remanded with directions.
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No. 1-12-1604
No. 1-12-1604
Cite as: People v. Nieto, 2020 IL App (1st) 121604-BDecision Under Review: Appeal from the Circuit Court of Cook County, No. 06-CR-4475;
the Hon. Rosemary Grant Higgins, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Jeffrey B. Svehla, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan
for J. Spellberg, Tasha-Marie Kelly, and Lori M. Rosen, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
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