People v. Gunn , 2019 IL App (1st) 170542 ( 2020 )

2020 IL App (1st) 170542No. 1-17-0542
Opinion filed June 30, 2020
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 13 CR 21956 (01)
)
OMAR GUNN, ) The Honorable
) Timothy Joseph Joyce,
Defendant-Appellant. ) Judge, presiding.
PRESIDINGJUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Lampkin and Burke concurred in the judgment and opinion.
OPINION
¶1 Defendant Omar Gunn, 17 years old, was charged as an adult and convicted after a
bench trial of first degree murder and sentenced to 40 years with the Illinois Department of
Corrections (IDOC).
¶2 In his initial brief in this appeal, defendant claimed (1) that we should reverse his
conviction and remand for a new trial because his trial counsel rendered ineffective assistance
of counsel or (2) that, alternatively, we should remand for resentencing because the trial court
failed to consider mandatory mitigating sentencing factors or (3) that we should reduce his
No. 1-17-0542
sentence or remand for resentencing because a 40-year sentence imposed on a 17-year-old, like
defendant, constitutes a de facto life sentence and violates the eighth amendment of the United
States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the
Illinois Constitution (Ill. Const. 1970, art. I, § 11).
¶3 However, defendant’s initial brief was filed before our supreme court decided People
v. Buffer, 2019 IL 122327. Defendant’s 40-year sentence now sits right on the dividing line
recently drawn by the Buffer court, between what does and does not constitute a de facto life
sentence. See Buffer, 2019 IL 122327, ¶ 40. The Buffer court found that, in determining when
a juvenile’s sentence is long enough to be considered de facto life, “we choose to draw a line
at 40 years.” Buffer, 2019 IL 122327, ¶ 40. Summing up its finding, the court stated: “We
hereby conclude that a prison sentence of 40 years or less imposed on a juvenile offender does
not constitute a de facto life sentence in violation of the eighth amendment.” (Emphasis added.)
Buffer, 2019 IL 122327, ¶ 41.
¶4 In response to Buffer, defendant filed a supplemental brief, arguing (1) that other
language in the Buffer opinion supports a finding that 40 years is long enough to be considered
a de facto life sentence; (2) that defendant’s 40-year prison sentence, plus his 3-year mandatory
release term, constitutes a 43-year total sentence and, thus, is a de facto life sentence under
Buffer; and (3) that Buffer was decided solely under the eighth amendment of the United States
constitution and did not address our state’s proportionate penalties clause and that defendant’s
sentence violates our state’s proportionate penalties clause in light of recent changes in juvenile
sentencing enacted by our state legislature.
¶5 For the following reasons we affirm.
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¶6 BACKGROUND
¶7 The evidence at trial established that 18-year-old Jaleel Pearson (the victim) was shot
in a corner store during the early evening of September 20, 2013, at the corner of 71st Street
and Crandon Avenue in Chicago. The State presented three event witnesses: (1) a bystander
who testified that defendant followed the victim into the store and that he then heard gunshots
inside the store; (2) the store’s cashier, who observed defendant shoot the victim in the store
and overheard the victim’s dying declaration identifying defendant as the shooter; and (3) the
victim’s girlfriend, who observed defendant outside the store after the murder with a gun
handle in his waistband.
¶8 Since trial counsel’s representation is at issue in this appeal, we set forth below his
representation both before and during trial.
¶9 I. Pretrial Representation
¶ 10 On December 4, 2013, when defendant was arraigned on the indictment, he was
represented by a private attorney. On March 24, 2014, he moved to withdraw, and defendant’s
family informed the court that they and counsel had “several disagreements about this case.”
The case was then continued to permit defendant time to obtain new counsel.
¶ 11 On April 17, 2014, a new attorney filed his appearance and represented defendant
through May 16, 2016, when the trial court informed defendant that his current attorney had
been suspended from the practice of law and, thus, could no longer represent defendant. The
trial court informed defendant that his attorney’s associate, who had represented defendant on
several prior court appearances, was “currently undergoing some medical treatment” but that
defendant could “continue with Mr. Wilk or go with somebody else.” Either way, however,
the trial court needed “to know what [defendant] want[ed] to do.” The trial court offered
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defendant a continuance so that defendant could “talk it over with Mr. Wilk when his health
[was] on the mend, [and] figure it out then.” Defendant agreed, and the trial court continued
the case for a month to permit that to happen.
¶ 12 At the next court date on June 14, 2016, Thomas Kougias, a new attorney on the case,
entered his appearance. Defendant’s mother explained that Kougias was “supposed to be
representing him from [the suspended attorney’s] office, because we already paid [the
suspended attorney]. So he’s supposed to be an associate of his.” However, Kougias clarified:
“Judge, I’m going to [need] leave to file my appearance today. I spoke with the
family. Judge, I also need to spread of record so the family is not confused. They had
represented to me that they had paid [the suspended attorney] in full. I know that’s not
the Court’s concern, and it’s really not my concern
But I did explain to them what procedures they need to follow in order to try and
obtain those funds back, whatever they paid. Whatever he’s not earned, he needs to
return.
*** Here’s the other concern. I don’t know [the suspended attorney’s] file that he
had on this matter. I need to try to locate it. I know it’s an old case. It’s a 13. I know
this case has whiskers. We need to get it moving. I don’t have a problem with that.”
Counsel then informed the court that he was going to work with the assistant state’s attorney
(ASA) to duplicate the file.
¶ 13 On July 13, 2016, counsel informed the court that the State had duplicated the file, that
he had received a portion of the file from the suspended attorney’s office, that he was asking
for August 26, 2016, for a final status conference, and that a bench trial was “indicated.”
¶ 14 On August 26, 2016, counsel informed the trial court:
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No. 1-17-0542
“The only issue I have—and I really don’t understand why it’s happening, but it
still is—this young man is in the custody of Cook County yet and they are transferring
him out to Kankakee, and I don’t understand why. A couple dates ago he’d be housed
in Kankakee and then be brought back here and the last time they just kept him out
there. It is a gross inconvenience to try and go out there. I need to meet with him. And
my point is I haven’t met with him to go [over] everything ***.”
The trial court then continued the case to September 23, 2016, stating that the court “will
presume in the meantime you will be able to meet with” defendant.
¶ 15 On September 23, 2016, counsel informed the trial court that he had “not gone to see
him yet in Kankakee” and that he was not ready. The trial court then set the matter for October
27, 2016, for a status conference and November 21, 2016, for a bench trial.
¶ 16 On November 21, 2016, counsel informed the trial court that he had received
information about a new potential alibi witness who counsel was to interview that day, and the
parties then went off the record. Back on the record, the trial court stated that the State could
begin its case and that the State was aware that defendant might present an alibi defense. Before
accepting a jury waiver from defendant, the trial court informed defendant that, if he was found
guilty of the most serious charge, the minimum sentence was 45 years. The trial court recalled
that it had presided over the bench trial of a codefendant but that it had “no specific or particular
recall of the evidence” and that it “had no idea what decision” it might reach in defendant’s
case. The court then accepted defendant’s jury waiver, and his bench trial began.
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¶ 17 II. Trial
¶ 18 A. Opening Statements
¶ 19 During the State’s opening statement, the ASA conceded that the court “will not hear
a reasonable explanation or a good explanation as to why the defendant did what he did that
day.” Instead, the ASA focused on the evidence identifying defendant as the shooter, namely,
the victim’s dying declaration and the expected testimony of the three event witnesses. In
response, counsel acknowledged that the State’s witnesses placed defendant “on the scene at
different times” but argued that, after hearing “all the evidence,” the trial court would find
defendant not guilty.
¶ 20 B. Event Witnesses
¶ 21 Tyera Cooks, age 19 years old, testified that she was a stay-at-home mother with two
children. At the time of the victim’s death, she and the victim had been dating for 2 years. On
September 20, 2013, the day of the offense, Cooks was 16 years old and a junior in high school.
At 6 p.m., she was inside a barber shop at the corner of 71st Street and Luella Avenue with
three friends: Michelle Casey, “Shadonna,” and “Quiel.” Cooks had been with the victim at 5
p.m. on nearby Crandon Avenue, and she had plans to meet him again after she finished in the
barber shop. The barber shop had large windows that looked out onto 71st Street, a major
thoroughfare. Train tracks for the Metra commuter rail separated its east and westbound lanes
of traffic at the street level.
¶ 22 Cooks testified that a friend of hers observed “there go ‘Lil Ant and Bonna[1] crossing
the street.” Through the windows, Cooks observed “Bonna” and “Ant” waiting by the train
1
“Bonna” is later identified as defendant. However, we continue to use the name “Bonna” in
describing the event witnesses’ testimony because that is the name that all the event witnesses used
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No. 1-17-0542
tracks, as two trains were approaching, both heading east. On the northwest corner of 71st
Street and Crandon Avenue was a corner store, which sold soda, chips, and lottery tickets. The
corner store was across the street from the barber shop. When she first observed Bonna and
Ant, the corner store was behind them.
¶ 23 Cooks testified that she observed Bonna and Ant unzipping their hooded sweatshirts,
or “hoodies,” and loosening the strings around their hoods. They were there only a few seconds
before the gates descended that block traffic from oncoming trains. Eventually, Bonna and Ant
crossed the tracks, toward the barber shop. As they headed in Cooks’s direction, they removed
their hoodies and placed them in a backpack that Bonna carried. After Bonna removed his
hoodie, Cooks observed the “hand part of a gun” in the back of his waistband. The gun was a
black, medium-sized gun. Cooks also observed a gun in Ant’s waistband. Cooks did not recall
the color of the hoodies that Bonna and Ant wore. Both Bonna and Ant wore T-shirts under
their hoodies. Once Bonna and Ant crossed 71st Street, they walked down Luella Avenue
toward 72nd Street.
¶ 24 Cooks testified that, in the past, Bonna and Ant hung around her house and that she had
known both of them for four years prior to the offense. In court, she identified defendant as
Bonna. At the time of the offense, she did not know Bonna’s real name; she knew that “Lil
Ant’s” real name was Anthony, but she did not know his last name. When she observed them
on the day of the offense, they were walking side by side and not running. While she was in
the barber shop, she did not hear any gunshots. After Bonna and Ant walked around the corner,
and the name that appears in the victim’s dying declaration. To simply call him “defendant” in the
following recitation of facts would obscure the significance of the name “Bonna,” which ties all their
testimonies together. Announcing the verdict, the court found: “It’s not a coincidence that everybody
identifies Bonna. It’s proof beyond a reasonable doubt that [defendant] is guilty of the murder” of the
victim.
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No. 1-17-0542
“Sam,” who owned the corner store, came to the front of the barber shop and told her that the
victim had been shot. Defense counsel objected to the question “did you learn anything from
Sam,” but the trial court overruled the objection, finding that Sam’s statement that the victim
had been shot was not admitted for the truth of the matter asserted but to explain what the
witness did next.
¶ 25 Cooks testified that her friend, Michelle Casey, went to the corner store. Cooks did not
go at first because she “was in shock.” When she did go, the paramedics would not let anyone
inside the store. The ambulance transported the victim to John H. Stroger Jr. Hospital, and
Cooks followed. Cooks did not inform the police officers who were at the scene or at the
hospital about the guns that she had observed. Cooks explained that she was very emotional
and upset.
¶ 26 On October 17, 2013, detectives from the Chicago Police Department contacted her,
and she viewed a lineup at a police station. At that time, she informed the police what she had
observed, and she identified Bonna and Ant from the lineup.
¶ 27 Since defendant’s first claim on appeal is that his counsel rendered ineffective
assistance in his cross-examination of witnesses, we provide detail below about what he
elicited on cross-examination.
¶ 28 Counsel established that Cooks had last been with the victim at 3 or 4 p.m., not 5 p.m.
as she had testified on direct examination, and that she had entered the barber shop at 5 p.m.
Cooks admitted that, from 5 to 6 p.m., she did not hear any gunshots or a vehicle backfiring or
anything out of the ordinary. Cooks testified that her nickname was “T.” When her friend
pointed out that Bonna and Ant were standing by the train tracks, Cooks testified that she was
“wondering what they doing on this side of town.” When asked if there was anything unusual
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No. 1-17-0542
about them waiting to cross the train tracks, Cooks replied: “Yeah. They don’t never be down
there on Crandon.” As a result, Cooks was thinking, “what they doing down here? What’s their
purpose to be down here?”
¶ 29 Cooks testified that she did not remember the color of their hoodies but that the hoodies
were “most likely” black. Cooks testified that, as she watched them, she was looking over her
shoulder. She was sitting in a chair, with her back to Bonna and Ant, and she had to turn her
head over her shoulder in order to see them. Counsel established that, before Cooks turned her
head, she was facing into the barber shop and could not observe what transpired behind her.
The two men were not running, and they could have walked east or west without the train
tracks blocking their path. Counsel established that the two men waited until the crossing gate
went up before crossing the train tracks.
¶ 30 Cooks also testified that, when the crossing gate was down, which was only one or two
minutes, the two men were unzipping and untying their hoodies. That is when the gate went
up, as they were walking and taking off their hoodies at the same time. Cooks asserted that
they were the only two people waiting at the crossing gate. When asked whether the gun handle
she observed was for a revolver or a semiautomatic pistol, Cooks conceded “I don’t know
nothing about guns.”
¶ 31 Cooks further admitted that she did not observe the gun handle as the two men waited
at the crossing gate, since she could observe only defendant’s front and the gun handle was in
the rear of his waistband. When the two men crossed the street, they were walking diagonally
toward the barber shop, which was “how the street was made.” Cooks testified: “As he’s
walking towards me, you know, the street go[es] diagonal[ly], so his body is on a slant. So I
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No. 1-17-0542
can see half front and half back.” Defendant pulled his T-shirt out of his pants to cover up the
gun. Ant also had a gun in the rear of his waistband.
¶ 32 Further, Cooks admitted that, when she first observed the guns, she did not exclaim to
her friends “looks like he’s got a gun.” When she walked over to the store after the victim had
been shot, she spoke with the paramedics, asking them where the victim was being taken. On
October 17, 2013, the police came to speak to Michelle Casey, Cooks’s friend, who was on
house arrest at the time. Cooks happened to be present, and that was when Cooks first informed
the police what she had observed. Cooks testified that she was 5 feet, 6 inches, that defendant
was shorter or 5 feet, 5 inches, and that Ant was taller or 5 feet, 9 inches. Cooks emphasized
that she did not know anything about guns, stating “I don’t own a gun. I don’t play with guns,”
and that she never observed either Bonna or Ant touch their guns or draw them out.
¶ 33 Tyquyne Hatchett, age 21 years old, testified that he had been lifelong friends with the
victim and that he had known “Bonna” and “Ant” from school for a couple of years before the
offense. On September 20, 2013, at 6 p.m., Hatchett had run into the victim at the corner of
71st Street and Crandon Avenue, and they were chatting. When the victim entered the corner
store there, Hatchett waited for him. While waiting, Hatchett crossed the street because he had
observed “the loose square guy,” who sells single cigarettes. While standing with the loose
square guy, Hatchett observed two men in hoodies walking along Crandon Avenue toward 71st
Street, on the opposite side of the street from Hatchett. The two men were wearing both hoodies
and jackets, with the hoods on their heads.
¶ 34 Hatchett testified that, although across the street, the two men were walking toward
him and, as they approached, he was able to observe their faces. When he observed their faces,
Hatchett was “about 15 footsteps” away from them. Hatchett recognized them as “Bonna,”
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No. 1-17-0542
who Hatchett identified in court as defendant, and “Lil Ant.” As Bonna and Ant approached,
the victim was in front of the store, with his head down, counting his money. When the victim
looked up toward Bonna and Ant, the victim ran into the store. Bonna clutched his waist
through his hoodie’s pockets and ran into the store behind the victim. Hatchett agreed with the
ASA that “Bonna had both of his hands in his hoodie pockets.” 2 Ant also clutched his waist,
but he did not run all the way into the store. The store had an outside and an inside door and a
small vestibule between the two doors. Bonna was at the second door, and Ant was behind
Bonna.
¶ 35 Hatchett testified that, after observing Bonna and Ant chase the victim, Hatchett started
running and, shortly after, he heard three gunshots coming from inside the store. Hatchett
explained that he ran because he thought there was going to be a shooting. Hatchett ran across
the train tracks on 71st Street into a building that also houses the barber shop. Hatchett ran to
that building because he knew people who lived there. However, he stayed there only “for a
minute” until he “heard the sirens and ambulance,” and then he “came out to see what was
going on.” After observing an ambulance and police, Hatchett learned that the victim had been
shot. However, Hatchett did not approach the police to tell them what he had observed because
he was “talking to people, trying to see [if] *** they [were] all right.”
¶ 36 Hatchett testified that, on October 3, 2013, he was at a police station on an unrelated
matter, when he told police what he had observed. Hatchett waited until October 3, because he
was scared and he “didn’t really want to talk to the police.” Hatchett spoke to police again on
2
Later on cross-examination, Hatchett testified that they were wearing their jackets over their
hoodies and their hands were in their jacket pockets not their hoodie pockets.
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No. 1-17-0542
October 15, 2013, and he viewed a lineup on October 17, 2013, from which he identified Bonna
and Ant as the two men who had chased the victim.
¶ 37 Again, we provide in detail the information elicited on cross-examination, as that is the
subject of one of defendant’s claims on appeal.
¶ 38 During cross-examination, Hatchett agreed that the day of the offense was “a sunny,
nice day.” Hatchett testified that Bonna and Ant were wearing two separate garments: a jacket,
with a hoodie underneath. Bonna was wearing a blue jacket, while Ant’s jacket “could have
been black.” Both of them were wearing black hoodies with the hoods up and tied. Hatchett
agreed that was unusual because it was warm. Hatchett himself was not wearing a jacket or a
hoodie.
¶ 39 Hatchett testified that he did not observe any bulges protruding from their bodies and
that their hands were in their jacket pockets. Hatchett also admitted that, since he was across
the street, his view of the two men was a “slight angle view.” When the victim entered the
store the first time, the two men were not on the street. Hatchett purchased cigarettes, and the
victim was in the store for a minute or two. After the victim exited the store, Hatchett was
looking at the victim as two men walked up. When the victim looked up at them, they clutched
their waistbands, and the victim ran into the store, and they ran after him. The two men did not
call out or say anything to the victim. Hatchett observed Bonna by the inner door and Ant by
the outer door, but Hatchett never observed any weapons. Hatchett started running away and
heard gunshots from inside the door. At that time, the first or outer door was open, and Hatchett
could not observe Bonna. Although the victim had been a friend most of Hatchett’s life, he did
not say anything to the police at the scene.
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No. 1-17-0542
¶ 40 Hatchett also testified that he went on his own on October 3, 2013, to speak with the
police because he wanted justice for his friend. However, on redirect examination, Hatchett
testified that he was at the police station on October 3 because he was a suspect in an unrelated
case that he was never charged with.
¶ 41 The trial resumed on November 29, 2016, with the testimony of Juliet Peyrefitte, who
testified that she was a college graduate and a “manager in retail.” In September 2013, she had
been employed for 6 months as a cashier at the corner store at 71st Street and Crandon Avenue.
The store, which was “fairly small,” had a set of double doors with a small vestibule between
them. In addition, there was a third door in the back by the cash register. Peyrefitte knew the
victim because he came into the store every day; she knew him as “Little J.” On September 20,
2013, she was working from 9 or 10 a.m. to 9 p.m., and she observed the victim on her way to
work. Sometime around 5 or 6 p.m., she observed the victim again as he entered the store for
chips or soda. After his purchase, he exited the store. About 30 or 35 minutes passed between
when the victim exited the store after his purchase and when he came running back into the
store.
¶ 42 Peyrefitte testified that, when the victim ran back into the store, she initially thought he
was “going to rob the store” but, when she asked him “what’s going on,” he replied “they are
trying to kill me.” When Peyrefitte looked past the victim, she observed defendant about a foot
or a foot and a half behind the victim. Peyrefitte then observed defendant “lifting up a gun and
fir[ing] a shot.” Peyrefitte observed the gun in defendant’s hand, and she testified: “I can
remember the spark from the gun, like flames and smoke. And the first shot went off. And I
saw [the victim] went backwards ***.” Peyrefitte testified: “Then I saw the bullet ricochet,
well hit the back pegboard we had there. And then after that I yelled at [the victim], telling him
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No. 1-17-0542
that he’s coming in. And [the victim] turned around to push the door, that’s when the second
shot went off.” At that point, Peyrefitte ran “around the other side of the enclosure.”
¶ 43 Utilizing photographs, Peyrefitte testified about the store’s interior and identified a
door marked “Exit” that led to the outside and an interior door that led to a back area for the
cashier. Peyrefitte was in the center of the cashier area.
¶ 44 Peyrefitte testified that, after the second shot was fired, the victim “started yelling out
at me. He started yelling out Bonner shot me. He said call the police, call the ambulance; I’m
hit, I’m hit. Bonner shot me.” The victim started walking over to her, but then he collapsed.
Peyrefitte called the police and laid the victim out, trying to stop the bleeding.
¶ 45 Peyrefitte testified that, after the victim was shot, defendant “casually” walked out of
the store. Explaining what she meant by casually, she testified: “[H]e didn’t run out like there
was a problem or something. He just walked out like he just bought something and walked
out.” After the victim collapsed on the floor, he “repeated the same thing again that Bonner
shot me, Bonner shot me. And then he started saying mom, I love you. I’m sorry, mom. Mom,
I love you.”
¶ 46 Defense counsel objected to the victim’s statements as hearsay. However, the State
observed that the trial court had previously granted the State’s motion to admit the victim’s
dying declarations. The trial court then noted that counsel had not been involved in the case at
that time. Ruling on counsel’s objection, the trial court found that “the circumstances just here
establish a dying declaration and an excited utterance simultaneously,” so the trial court
overruled counsel’s objection.
¶ 47 Peyrefitte testified that, when defendant ran into the store, he was wearing a white shirt,
a blue hoodie, and jeans. Although the hoodie was tied “real tight on his face,” Peyrefitte was
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No. 1-17-0542
able to observe his whole face. When the police arrived, Peyrefitte was still in the store, but
she did not speak to the police because: “I was in shock. I didn’t want to say anything. I was
scared. I couldn’t say anything.” Peyrefitte did not return to work at the store, and on October
18, 2013, she went to the store to inform them that she would not be returning. While at the
store on October 18, 2013, she encountered Detective O’Brien, who was outside. She told him
she was ready to talk about what happened, and she went with him to the police station where
she identified defendant as the shooter.
¶ 48 Peyrefitte informed the police that there was video surveillance in the store and that, as
far as she knew, it was in working order the entire time that she worked there. Peyrefitte
testified that she had previously viewed the video, marked as People’s exhibit 23, and that the
video truly and accurately depicted what happened on September 20, 2013. The video was then
admitted into evidence without objection, and it was published to the court.
¶ 49 The video contains three clips. The first clip depicts the victim running into the store,
chased by another person. However, it is impossible to discern the pursuer’s face from the
video. The video shows a flash of bright blue when the pursuer appears in the store. The second
clip depicts Peyrefitte hiding under a counter and then emerging and making a call on her cell
phone and the victim approaching her and then collapsing. The third clip shows Peyrefitte next
to the victim after he collapsed. Although the tape does not include audio, Peyrefitte testified
that, during the time period depicted in these clips, the victim was telling her that Bonna shot
him and that he loved his mom.
¶ 50 On cross-examination, Peyrefitte testified as follows: Although she was inside a
secured area during the offense, the door to the secured area was open and was “never locked.”
When asked if the area had bulletproof glass, she replied: “Supposedly.” Sam, another cashier,
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No. 1-17-0542
was also in the store, but he was “doing like juices in the back.” Initially, when the victim ran
into the store, Peyrefitte thought he was trying to rob the place. However, when she did not
observe anything in his hands, she asked him what was going on, and he responded “they are
trying to kill me.” After the victim ran into the store, he entered the secure area behind the
bulletproof glass, and that is where he told her they were trying to kill him. The shooter was a
foot behind him and two feet away from Peyrefitte.
¶ 51 Peyrefitte testified that the video depicted the shooter pointing a gun and firing. After
two shots, Peyrefitte ran and hid under the counter. Almost immediately after the victim
finished his statement that they were trying to kill him, she heard a gunshot. Peyrefitte noticed
the shooter as he was running and had his gun drawn. She was focused on the shooter rather
than the gun, but she did observe that he had a gun. Peyrefitte could not describe the gun; all
she could recall was “the smoke from the gun” and that the gun was in the shooter’s right hand.
¶ 52 Peyrefitte also admitted that she could not observe any of the shooter’s hair and, thus,
did not know whether he was bald or had a shaved head or braids. Peyrefitte admitted that she
had never observed the shooter before in the store and that she had no idea if there was another
person present as well.
¶ 53 When asked whether there was anything unique about the shooter’s face, Peyrefitte
testified as follows:
“It’s hard to explain to you. It’s so traumatic to me that I have seen his face so many
times. I mean, there’s no saying—I don’t know how to explain it. It couldn’t possibly
be somebody else because I have seen his face, it only haunts my dreams as well. I have
been on medication because of seeing that person’s face and what he did.”
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We provide the full quote above because defendant argues it on appeal as an example of
counsel’s ineffectiveness.
¶ 54 Counsel then clarified what he was trying to ask, and Peyrefitte admitted that she could
not tell whether the shooter was wearing an earring or any jewelry and that she did not observe
any scars on his face or his eye color or whether he had any braces or gold or silver teeth. The
shooter was wearing a “Cubs blue” hoodie and a white shirt underneath, which was sticking
out from his jeans. When asked if there were other people in the store, Peyrefitte testified that
she was “oblivious to everybody else in the store.” Although Peyrefitte called 911, she did not
speak to the police when they arrived because the incident “could be gang related, retaliation”
and she “lived in that neighborhood.” She claimed that a coworker was there when the police
arrived and that she (Peyrefitte) told the police “[n]othing.”
¶ 55 When asked if she knew most of the customers, she replied that she “pretty much knew
all the faces in the area.” However, that was the first time that she observed the shooter.
¶ 56 Peyrefitte claimed, at first, that it was only “a couple days later” when she spoke to the
police. However, under cross-examination, she admitted that it was a month. Peyrefitte then
testified that, for a month, she kept her children home from school, that she did not speak to
anyone, and that they “basically just stayed inside.” Her children were 21, 17, and 7 years old,
and she kept them out of school for a month. However, she then testified that she did leave to
visit doctors, whom she told what happened.
¶ 57 Peyrefitte testified concerning the lineup on October 18 that the shooter’s “face had
made such an imprint in [her] life that as soon as [she] saw it again [she] was able to ID it.”
Peyrefitte agreed that the store video does not depict the shooter’s face because his back was
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No. 1-17-0542
to the camera. On the day of the offense, after the police officers arrived, she left the store
without telling them where she was going.
¶ 58 Finally, Peyrefitte testified that she was two feet away from the shooter, she had good
vision, and the store was well lit, but she did not observe any scars on the shooter’s face or
bumps on his forehead. Peyrefitte agreed with counsel that “there’s nothing unique or
identifiable of this young man,” except that “for the few moments that [she] had to look at this
young man” she had “nightmares” about it. Peyrefitte admitted that she “wasn’t looking at
maybe pimples or bumps on his face,” but rather she identified him based on “just the outline,
just his features.” She also admitted that there was never an angle on the video that revealed
the shooter’s face.
¶ 59 C. Police Witnesses and Stipulations
¶ 60 Officer David Ryan testified that he was a forensic investigator in a mobile crime lab
and that, on September 20, 2013, at 8:45 p.m., he arrived to process the crime scene in this
case. He found one fired bullet lodged in a wooden pegboard inside the store but did not locate
any firearms or fired cartridge cases. Ryan processed the scene for both blood samples and
latent fingerprints, collecting blood samples from different locations inside and immediately
outside the store and collecting four latent prints from the store’s doors. On cross-examination,
Ryan testified that none of the prints or blood “ultimately came back to” defendant. The prints
and blood that Ryan recovered were sent to another crime lab for testing and analysis.
However, to his knowledge, none of this evidence was linked to defendant.
¶ 61 Detective James O’Brien testified that, on September 20, 2013, after arriving at the
crime scene, he directed an evidence technician to recover the video footage from the store’s
video camera. On October 5, 2013, he met with Tyquyne Hatchett, who stated that he observed
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No. 1-17-0542
Bonna and Ant chasing the victim into the store. Although Hatchett had attended grammar
school with Bonna, Ant, and the victim, Hatchett knew only Bonna and Ant’s first names,
which were Omar and Anthony, respectively. O’Brien then showed Hatchett photographs of
defendant and Anthony Wells, which Hatchett confirmed were photographs of Bonna and Ant.
O’Brien then issued an investigative alert for both defendant and Wells. Pursuant to this alert,
defendant was arrested on October 16, 2013, and Wells was arrested on October 17, 2013.
¶ 62 O’Brien testified that, after speaking with the victim’s family, O’Brien also learned that
Tyera Cooks was a witness. After police located her, she agreed to come to the police station
to view a lineup. On October 17, 2013, both Hatchett and Cooks viewed the same lineup but
at separate times. Hatchett identified defendant as the person who Hatchett observed chasing
the victim into the store with a gun and Wells as the person who was with defendant. Cooks
identified defendant and Wells as the persons whom she observed crossing the street with guns
in their waistbands.
¶ 63 O’Brien testified that, on October 18, he met with another witness, Juliet Peyrefitte, at
the store and she returned with him to the police station to view another lineup, where she
identified defendant as the shooter.
¶ 64 On cross-examination, O’Brien testified that he first met with Peyrefitte, the cashier,
on September 20, 2013, immediately after the offense. However, he needed to review his report
to refresh his recollection of the interview. After reviewing the report, he testified that she
described the shooter only as “a male black in his teens” wearing “a blue hoodie.” O’Brien
agreed that Peyrefitte did not describe “any unique characteristics or markings, scars or
tattoos.” He did not recall her stating that the hoodie was tied tightly around the shooter’s face.
Peyrefitte stated specifically that the shooter “shoved the door open with his left hand.” On the
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No. 1-17-0542
night of the shooting, Peyrefitte did not provide the name “Bonna” for the shooter; rather that
name was first provided to the police in an anonymous 911 call.
¶ 65 O’Brien testified further that, on October 18, 2013, he went to the store looking for
Peyrefitte. When O’Brien was asked why Peyrefitte had not come forward for a month,
O’Brien responded that she was “scared to death” and “had a panic attack [w]hen we were
talking to her.” O’Brien also admitted that the first contact that he had with Hatchett, another
witness, was not until October 15, 2013.
¶ 66 When counsel asked O’Brien if he recalled whether defendant had any marks, scars, or
tattoos when O’Brien processed his arrest, O’Brien replied that he had not prepared the arrest
report. When counsel directed his attention to a scar on the bridge of defendant’s nose, O’Brien
responded that he “could have gotten that scar since then.” O’Brien could not “specifically
recall” whether defendant “had it then.” O’Brien also admitted that he could not discern from
the video if defendant was the shooter.
¶ 67 In response to a question from the trial court, the State stipulated that, when Peyrefitte
spoke to the police on the day of the offense, she did not inform them that the victim had told
her that Bonna had shot him. The parties also stipulated that, if called to testify, (1) Eric Eason,
an assistant medical examiner, would testify that the victim died of multiple gunshot wounds;
(2) Diana Pratt, a ballistics examiner with the Illinois State Police, would testify that the bullet
that Officer Ryan recovered from the wall of the store and the bullet that the medical examiner
recovered from the victim’s body were fired from the same firearm; and (3) Michael Cox, a
fingerprint examiner with the Illinois State Police, would testify that he examined four latent
prints lifted from the crime scene, that one was not suitable for comparison, that he received
fingerprint cards for defendant, codefendant Anthony Wells, and cashier Juliet Peyrefitte, that
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No. 1-17-0542
two of the three suitable prints were made by Peyrefitte, and that a comparison of the cards
with the remaining print did not lead to an identification.
¶ 68 D. Closing Arguments and Verdict
¶ 69 The State then rested, and the defense moved for a directed finding, which was denied.
The defense then rested, and the parties proceeded to closing argument. During the State’s
closing argument, the State emphasized the testimony of the three event witnesses, as well as
the victim’s dying declaration identifying defendant as the shooter. During the defense’s
closing, counsel argued that Cooks and Hatchett had no credibility by emphasizing the sticking
points in their testimony—that Cooks conveniently looked out the window at just the moment
that defendant was crossing the street and glimpsed the butt of a gun in his waistband but said
nothing to the police on the scene, although she was the victim’s girlfriend, and that Hatchett
observed two people chasing his friend and then immediately heard gunshots, but also provided
no information to the police on the scene. Counsel noted that defendant and his friend were not
running when Cooks observed them but were actually waiting for the train gates to lift,
although they could have easily moved in another direction. As for Peyrefitte, the cashier,
counsel argued that “she picked out the wrong guy,” in light of the fact that she had never
observed the shooter before that day, that the hoodie was drawn tightly around the shooter’s
face, that she could not identify a single distinguishing characteristic about him, and that she
had only a few seconds to view him. In addition, the other two event witnesses testified about
two offenders; however, Peyrefitte mentioned only one, creating an inconsistency between her
testimony and their testimony. Counsel argued that, if Peyrefitte was in an “altered state where
she’s so scared” and “an emotional wreck” then her identification should not be believed.
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No. 1-17-0542
Counsel also observed that neither the lifted fingerprints nor the video identified defendant as
the shooter.
¶ 70 Prior to announcing its verdict, the trial court observed that the attorneys, who had
appeared before the judge on other matters, had conducted themselves “in an exemplary
manner,” that they all did “an excellent job,” that they made clear that they were “well-versed
in the factual and legal underpinnings” of the case, and that their representation was “consistent
with the high degree of professionalism I have come to expect from all these attorneys.”
¶ 71 The trial court reviewed the testimony of the three event witnesses and then stated that
“the question then becomes is *** their failure to describe what it was they saw at the time that
they had an opportunity to first speak to the police” enough to “raise[ ] a doubt concerning
[defendant’s] guilt for the charge of first degree murder.”
¶ 72 The trial court observed that Cooks and Hatchett had known defendant for years,
making the lineups not as crucial. However, Peyrefitte’s selection of defendant at a lineup was
significant.
¶ 73 With respect to the argument that the witnesses’ initial failure to speak out created a
reasonable doubt, the trial court found: “The problem with that argument, excellently put forth
by [counsel], is that I believe their testimony. I believe their testimony without qualification. I
believe that they were genuinely scared on September 20 when they observed the events that
they did; that they were scared when they spoke to the police; that, frankly, they were scared
when they came into this courtroom. But despite their fears, in particular Ms. Peyrefitte, ***
she evinces no hesitation back in October or today of identifying [defendant] as the person who
shot and killed [the victim].”
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No. 1-17-0542
¶ 74 The court also observed that, in October 2013, when Peyrefitte mentioned Bonna as
the person identified by the victim as the shooter, Peyrefitte had no connection either to Cooks
or Hatchett and had “no idea who” Bonna was. By mentioning Bonna to Detective O’Brien,
“she is, in fact, confirming everything he knows about the identity” of the shooter, and “at the
time she says that to him *** she had no opportunity to have been fed that.” The court found
that this was “additional evidence that confirms her testimony.”
¶ 75 In sum, the court found: “It’s not a coincidence that everybody identifies Bonna. It’s
proof beyond a reasonable doubt that [defendant] is guilty of the murder” of the victim.
¶ 76 III. Sentencing
¶ 77 On February 7, 2017, the trial court denied defendant’s posttrial motion for a new trial
and proceeded to sentencing. At the sentencing hearing, the State called three police witnesses
to testify to previous instances of criminal misconduct by defendant. First, Officer John Fazy
testified that, on August 17, 2010, he responded to a complaint of robbery. The complainant
was Andre Kirkwood, who identified defendant in a show-up identification as one of the
robbers. Kirkwood informed the officer that “he had been beaten, he was hit by bicycles, and
had his property taken from his person by a group” of five offenders that included defendant.
¶ 78 Second, Officer Paul Carridre testified that on May 8, 2012, at 2:15 p.m., he responded
to a report of shots fired. When he arrived at the location, he observed a group of approximately
five males that included defendant. Defendant separated from the group, walked down a
gangway between two houses, and then returned and continued walking with the group. Officer
Carridre investigated the area that defendant had walked to and recovered a loaded .380
handgun, which was hidden in a black sock under some hosta plants between the houses. The
gun contained eight live rounds. When the officer confronted defendant with this discovery,
23
No. 1-17-0542
defendant admitted that he had placed the gun there and stated: “I stole it from my brother. I
have it because the MCs have been shooting at us.” Officer Carridre explained that the
abbreviation “MCs” stood for “Mickey Cobras street gang.”
¶ 79 Third, Officer Robert Douglas testified that, on July 20, 2011, at 3:30 p.m., he
interviewed Deon Usher, who stated that defendant “and a few other guys” were “threatening
him and his family because they were testifying against one of his friends.” The interview
occurred at Usher’s residence, and Usher identified defendant, who was walking down the
block in a group of approximately five individuals. After the three officers testified, members
of the victim’s family read their victim impact statements to the court.
¶ 80 The State then observed that the firearm enhancement for personally discharging a
firearm was discretionary and that, without it, the sentencing range was 20 to 60 years.
Discussing factors in aggravation, the State noted that in 2012, the year before this offense,
defendant had been adjudicated delinquent for unlawful use of a weapon and placed on 18
months of juvenile probation. Officer Carridre had just testified about the facts underlying the
adjudication. It was while on probation for possessing a loaded firearm that defendant shot and
killed the victim in the present offense. The State remarked that, while the trial court must be
thinking of recent case law concerning juvenile sentences, this defendant, although 17 years
old, was not convicted under a theory of accountability but rather was the one who “personally
took” the victim’s life. The prosecutor then stated that the State was “not taking a position with
respect to any particular sentence.”
¶ 81 In mitigation, counsel argued that defendant had strong family support, that he was on
the honor roll while in school, and that he worked various jobs including as a window washer,
in construction, and in the school kitchen. Counsel asked for imposition of the minimum
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No. 1-17-0542
sentence. Defendant then addressed the court to say that he was “truly innocent” but sorry for
the victim’s family.
¶ 82 The trial court then stated that it was “familiar with the factors in aggravation and
mitigation in the Unified Code of Corrections under Sections 5-5-3.1 and 3.2.” The court
observed that, if it applied the firearm enhancement of 25 years to natural life, then the
minimum sentence would be 45 years, and the maximum would be 85 years or natural life.
The court noted that this enhancement was now discretionary due to recent legislative changes
in response to cases finding “that a mandatory minimum sentence of natural life or what can
be called de facto life *** is contrary to the constitution of the United States and the [S]tate of
Illinois.”
¶ 83 The trial court stated that this case was “confounding,” where defendant had “excellent
family support, loving mother and a father, was in school in the twelfth grade on the honor roll
at the time of the offense, no seeming drug abuse, had a monthly income, notwithstanding that
I’m sure he was supported by his employed parents, did not irresponsibly father any children
during his teens, resided in the same home for a long time.”
¶ 84 However, the trial court found that, “despite all of these advantages, [defendant] went
out and committed an offense that can only be described as horribly brazen. *** [H]e armed
himself not only with a confederate, but also with a gun, put on hoodies on what was probably
a nice day *** [and] [a]bsolutely assuredly sought out this particular person to shoot and kill.”
Relating the details of the offense, the trial court repeatedly stated how “brazen” it was. For
example, the court found that “[t]he brazen nature of this crime is further shown by how”
defendant and codefendant “calmly” walked back across the street. The trial court found that
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No. 1-17-0542
these circumstances “militate in favor of a substantial sentence appreciably above the
minimum of 20 years.”
¶ 85 After discussing the offense, the trial court observed: “At the same time, there are other
circumstances—he’s a 17-year-old young man at the time of this offense. Some people would
call him a boy.” But he was “also an experienced criminal by that time.”
¶ 86 In consideration of all the factors in aggravation and mitigation, the trial court exercised
its discretion not to impose the firearm enhancement and sentenced defendant to 40 years with
IDOC, plus 3 years of mandatory supervised release. Counsel then filed a motion to reconsider
sentence, which the trial court denied. A timely notice of appeal was filed on February 7, 2017,
and this appeal followed.
¶ 87 ANALYSIS
¶ 88 Defendant claims, first, that his trial counsel’s ineffectiveness entitles him to a new trial
and, second, that the 40-year sentence he received as a minor is unconstitutional.
¶ 89 I. Trial Counsel’s Alleged Ineffectiveness
¶ 90 A. Standard of Review
¶ 91 Both the United States and Illinois Constitutions guarantee criminal defendants the
right to the effective assistance of counsel. People v. Hale, 2013 IL 113140, ¶ 15. In general,
the standard of review for determining whether an individual’s sixth amendment right to
effective assistance has been violated is de novo. Hale, 2013 IL 113140, ¶ 15. A de novo
review means that a reviewing court performs the same analysis that a trial court would
perform. People v. Stephens, 2017 IL App (1st) 151631, ¶ 48.
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No. 1-17-0542
¶ 92 B. Strickland Test
¶ 93 In determining whether a defendant was denied effective assistance of counsel, we
apply the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668, 687
(1984), and adopted by the Illinois Supreme Court in People v. Albanese, 104 Ill. 2d 504(1984). People v. Cherry, 2016 IL 118728, ¶ 24. To prevail on a claim of ineffective assistance,
a defendant must show both (1) that counsel’s performance was deficient and (2) that this
deficient performance prejudiced defendant. People v. Domagala, 2013 IL 113688, ¶ 36 (citing
Strickland, 466 U.S. at 687).
¶ 94 To establish the first prong, a defendant must show “that counsel’s performance was
objectively unreasonable under prevailing professional norms.” Domagala, 2013 IL 113688,
¶ 36. In order to establish deficient performance, the defendant must overcome the strong
presumption that the challenged action may have been the product of sound trial strategy.
People v. Manning, 241 Ill. 2d 319, 327 (2011). Matters of trial strategy are generally immune
from claims of ineffective assistance of counsel. Manning, 241 Ill. 2d at 327.
¶ 95 To determine whether counsel’s performance was deficient, a reviewing court
considers the entire record. People v. Burnett, 2019 IL App (1st) 163018, ¶ 9. Our
“determination must be made on the basis of the entire record, not isolated instances.” People
v. Hommerson, 399 Ill. App. 3d 405, 415 (2010); see also People v. Flores, 128 Ill. 2d 66, 107
(1989) (“counsel’s performance must be evaluated [based on] the entire record, and not upon
isolated instances of alleged incompetence called into question by the defendant”). In addition,
“effective assistance of counsel refers to competent, not perfect, representation.” People v.
Palmer, 162 Ill. 2d 465, 476 (1994); People v. Stewart, 104 Ill. 2d 463, 491-92 (1984). Since
a defendant is “entitled to reasonable, not perfect, representation,” “mistakes in strategy or in
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No. 1-17-0542
judgment do not, of themselves, render the representation incompetent.” People v. Fuller, 205
Ill. 2d 308, 331 (2002). A defendant must overcome “the strong presumption that counsel’s
performance fell within a wide range of reasonable professional assistance.” Palmer, 162 Ill.
2d at 476.
¶ 96 To establish the second prong, that deficient performance prejudiced the defendant, the
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Domagala, 2013
IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 694). “[A] reasonable probability that the result
would have been different is a probability sufficient to undermine confidence in the outcome—
or put another way, that counsel’s deficient performance rendered the result of the trial
unreliable or fundamentally unfair.” People v. Evans, 209 Ill. 2d 194, 220 (2004); People v.
Colon, 225 Ill. 2d 125, 135 (2007). When the evidence at trial is “overwhelming,” a reviewing
court will not be “persuaded that it is reasonably probable that a jury would have acquitted
[the] defendant even in the absence” of counsel’s alleged errors. People v. Patterson, 2014 IL
115102, ¶ 87. If the evidence of defendant’s guilt is overwhelming, “[t]he reasonably probable
impact of counsel’s alleged error is not sufficient to undermine our confidence in the outcome
of the trial” and, thus, not sufficient to establish the prejudice prong of the Strickland test.
Patterson, 2014 IL 115102, ¶ 87.
¶ 97 Since a defendant must satisfy both prongs of the Strickland test, the failure to establish
either prong bars the claim. Cherry, 2016 IL 118728, ¶ 24; People v. Flores, 153 Ill. 2d 264,
283 (1992).
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No. 1-17-0542
¶ 98 C. Reasonable Performance
¶ 99 Our review of the entire record establishes that counsel’s assistance was far from
deficient. Although we review counsel’s assistance de novo, we observe that the trial court
made the same finding when it spontaneously observed at the end of trial that all the attorneys
did “an excellent job,” that they were “well-versed in the factual and legal underpinnings” of
the case, and that their representation was “consistent with the high degree of professionalism”
that the trial court had “come to expect from all these attorneys.”
¶ 100 Our review begins with the pretrial proceedings, where the record shows that counsel
obtained a duplicated file from the State and a portion of the file from prior counsel, that he
did not want to proceed with trial until he had an opportunity to meet personally with defendant
and review all the reports in this case, and that he was actively investigating a potential alibi
witness.
¶ 101 During trial, counsel extensively cross-examined all of the State’s witnesses. During
the cross of Tyera Cooks, the victim’s girlfriend, counsel established, first, that the times that
Cooks had testified to on direct examination were not accurate, thereby impugning her overall
memory. On direct examination, Cooks testified that she had been with the victim at 5 p.m.,
whereas on cross-examination she testified that she had been with the victim at 3 or 4 p.m.
¶ 102 On cross-examination, Cooks admitted that she did not hear any gunshots or anything
out of the ordinary between 5 and 6 p.m. Cooks testified that defendant’s hoodie was “most
likely” black, when the video established that the shooter wore blue. Cooks admitted that she
was sitting in a chair with her back to the window and, thus, had to twist her head around and
look over her shoulder to observe defendant and Ant. Thus, counsel established that her
vantage point was literally twisted and askew. Counsel established through his cross-
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No. 1-17-0542
examination of Cooks that the two men were not running, as one would expect immediately
after a murder, but were actually standing and waiting for the crossing gate to rise and, then
they walked, not ran. Cooks admitted that the two men could have walked east or west without
waiting for the gate to rise or the trains to go by. Thus, if they were actually murderers trying
to make their escape immediately after a crime, there were other directions in which they could
have gone.
¶ 103 Defense counsel was also able to obtain repeated assertions from Cooks that she knew
nothing about guns. Cooks admitted that she could not observe the gun handle as the two men
stood waiting at the crossing gate because the gun was in the back of his waistband. Cooks
conceded that she was able to glimpse the gun handle only on a diagonal view, as the two men
were walking on a diagonal line toward her and only in the seconds before defendant allegedly
pulled his T-shirt out of his pants to cover the gun. Thus, counsel established that Cooks had a
brief, diagonal view as she peered, half-twisted, over her shoulder. Cooks admitted that, with
respect to defendant, she could observe only “half” of his “front” and “half” of his “back.”
¶ 104 Cooks further admitted that, when she first observed the guns, she did not exclaim to
her friends about the guns. Thus, counsel established that Cooks made no immediate outcry.
In addition, although the police were on the scene and Cooks spoke to paramedics, she never
revealed what she had observed. Coincidentally, she happened to be present on October 17,
2013, when police visited the house of her friend, and that was when she first informed police
about what she had observed. Counsel established that Cooks never tried to contact the police
to provide any information about her diagonal, over-the-shoulder, gun-handle observations.
¶ 105 Counsel’s cross-examination of Cooks also suggested a motive for her to lie, namely,
her resentment that defendant and codefendant were in her neighborhood, which is a place she
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No. 1-17-0542
clearly thought they had no right to be. Cooks testified repeatedly that she “wonder[ed] what
they doing [sic] on [her] side of town.”
¶ 106 During the cross-examination of Hatchett, counsel emphasized that Hatchett’s
testimony contradicted Cooks’s testimony about what Bonna and Ant were wearing. Hatchett
testified that the two men were wearing both jackets and hoodies, with the jackets over their
hoodies and their hands in their jacket pockets. By contrast, Cooks had testified that the two
men were wearing just hoodies, which they were able to quickly remove while walking.
Cooks’s testimony made no mention of jackets, and if Bonna and Ant were wearing both
hoodies and jackets, as Hatchett testified on cross, they would not have been able to disrobe as
quickly as Cooks had alleged.
¶ 107 Counsel elicited from Hatchett that both Bonna and Ant were wearing black hoodies.
In contrast, Peyrefitte testified that, when defendant ran into the store, he was wearing a white
shirt, a blue hoodie, and jeans. Thus, Hatchett’s testimony contradicted Peyrefitte’s concerning
the color of defendant’s hoodie.
¶ 108 Counsel’s cross-examination established that not one eyewitness agreed with the other
about exactly what defendant was wearing. Hatchett testified that Bonna and Ant were wearing
both jackets and hoodies when they ran into the store, but both Peyrefitte and Cooks’s
testimony contradicted this claim. Hackett testified that defendant’s hoodie was black, and
Cooks similarly testified that it was “most likely black,” but Peyrefitte testified it was “Cubs
blue,” which is the bright blue of a local baseball team.
¶ 109 One could argue that the blue jacket recalled by Hatchett was the blue hoodie recalled
by Peyrefitte, except for the fact that Peyrefitte testified that the hood of the hoodie, or the
essence of a hoodie—i.e., what makes it a hoodie—was tied tightly around defendant’s face,
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No. 1-17-0542
and it was blue, while Hackett testified that the same part of the hoodie, namely, the hood, that
he observed emerging from the jacket was black. A black hood cannot be reconciled with a
bright, Cubs-blue hood. Thus, counsel did an effective job of drawing out these facts on
Hatchett’s cross-examination.
¶ 110 Counsel was also able to establish that Hatchett’s view of the two men, like Cooks’s
view, was at an angle and across the street. Unlike Cooks, Hatchett never observed any
weapons or even bulges protruding from their bodies. Although the victim had been a friend
of Hatchett’s for most of Hatchett’s life, Hatchett admitted that he chose not to say anything to
the police on the scene. Also, Hatchett claimed that he went to the police on his own on October
3, 2013, to speak with the police because he wanted justice for his friend. However, counsel’s
cross-examination forced the State to clarify on redirect examination that Hatchett was at the
police station on October 3 because he was a suspect in an unrelated case and that he was never
charged in that case.
¶ 111 During Peyrefitte’s testimony, counsel objected to the State’s use of the victim’s
statements of identification. However, through no fault of counsel, the trial court overruled his
objection and admitted the statements as both dying declarations and excited utterances.
¶ 112 During cross-examination, Peyrefitte admitted that she could not observe any of the
shooter’s hair because the hoodie was drawn tightly around his face and, thus, she did not know
whether the shooter was bald or had a shaved head or braids. Peyrefitte admitted that she had
never observed the shooter before in the store and that she had no idea if there was another
person present as well. Her inability to recall another person was in stark contrast to the
testimony of the two other eyewitnesses who testified about a pair of men, acting as a pair.
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No. 1-17-0542
¶ 113 Peyrefitte admitted that she could not tell whether the shooter was wearing an earring
or any jewelry and that she did not observe any scars on his face or his eye color or whether
he had any braces or gold or silver teeth and that she identified him based on “just the outline.”
The fact that Peyrefitte did not observe any scars is significant because later in the trial, during
cross-examination, O’Brien acknowledged the presence of a scar on the bridge of defendant’s
nose.
¶ 114 Counsel established during the cross-examination of Officer Ryan, the forensics
investigator, that none of the prints or blood that he collected from the crime scene “ultimately
came back to” defendant.
¶ 115 On cross-examination, O’Brien admitted that, on September 20, 2013, when he met
with Peyrefitte, the cashier, immediately after the offense, she described the shooter only as “a
male black in his teens” wearing “a blue hoodie”—a description that could match hundreds of
people, if not more. O’Brien admitted that Peyrefitte did not provide “any unique
characteristics or markings, scars or tattoos,” and he did not recall her stating that the hoodie
was tied tightly around the shooter’s face, as she had testified to at trial. In addition, Peyrefitte
informed him that the shooter “shoved the door open with his left hand,” which was significant
because none of the recovered prints belonged to defendant. In addition, O’Brien confirmed
that Peyrefitte did not provide the name “Bonna” on the night of the shooting, although she
testified at trial that this was the name used by the victim to identify the shooter. As a result of
this cross-examination, the trial court asked a question, and in response, the State was willing
to stipulate that, when Peyrefitte spoke to the police on the day of the offense, she did not
inform them that the victim had told her that Bonna had shot him. O’Brien also acknowledged
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No. 1-17-0542
the presence of a scar on the bridge of defendant’s nose, which Peyrefitte had not mentioned,
and acknowledged that one could not discern from the video if defendant was the shooter.
¶ 116 For all the above reasons, we cannot find that counsel rendered deficient performance.
However, on appeal, defendant claims that counsel bolstered the event witnesses’
identifications, when he elicited information on cross-examination such as that Peyrefitte was
focused on the shooter and that his face made such an emotional impact on her life that it
haunted her dreams, that Hatchett observed defendant wearing a blue jacket, and that Cooks’s
view of defendant crossing the street was not obstructed. First, counsel argued during closing
that Peyrefitte’s emotional trauma should make her less credible, not more. Second, as we
explained above, Hatchett’s testimony that defendant wore a blue jacket and a black hoodie
contradicted the testimony of the other two event witnesses. Third, although her view was
unobstructed, counsel established on cross-examination that Cooks had a brief, diagonal view
as she peered, half-twisted, over her shoulder.
¶ 117 Defendant also argues that counsel’s cross-examination permitted Peyrefitte and
Hatchett to repeat how scared they were to come forward, thereby excusing their delay in
providing information to the police, which was, for Hatchett, from September 20, 2013, to
October 3, 2013, and for Peyrefitte, from September 20, 2013, to October 18, 2013. Defendant
argues on appeal that the two-week delay by Hatchett and the three-week delay by Peyrefitte
could have otherwise been used to undermine their credibility. However, during closing,
counsel employed a different strategy, arguing that their testimony did not ring true—that they
would be “so scared” on the day of the offense and suddenly not scared just a short while later.
Counsel argued: “You’re scared? Then what changed? Everybody seems to have been so
scared that they couldn’t talk to the police on the date in question, and they decide to open their
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mouths for whatever reason a month later? What changed?” As we noted above, matters of
trial strategy are generally immune from claims of ineffective assistance of counsel. Manning,
241 Ill. 2d at 327.
¶ 118 Defendant also argues that counsel elicited information during the cross-examination
of Detective O’Brien about a 911 call that would otherwise have been inadmissible hearsay.
Counsel asked O’Brien whether the name “Bonna” was a name that Peyrefitte provided on the
day of the offense “or did this come out subsequently?” O’Brien replied that the information
about “Bonna came out over the police radio that night” and that the source was a person who
had called 911 anonymously. Defense argues that counsel acted ineffectively when he elicited
this testimony and then failed to move to strike it. First, whether to move to strike is a matter
of trial strategy, and such matters are generally immune from ineffectiveness claims. Manning,
241 Ill. 2d at 327. Motions to strike may call more attention to objectionable testimony, which
a trier of fact cannot unhear. Second, if there was one identifying witness and this hearsay
statement was the sole corroboration, the result could be different. See, e.g., People v. Wright,
65 Ill. App. 2d 23, 34 (1965) (“Nor can the error in admitting the [officers’ hearsay] testimony
be regarded as harmless in view of the fact that defendant was identified by but one witness.”).
However, in the case at bar, two separate event witnesses provided corroborating support for
Peyrefitte’s identification of defendant as the shooter. Lastly, this was a bench trial, and the
trial court gave detailed reasons for its verdict, and this hearsay was not among them. Thus,
we cannot find that counsel’s alleged failure to move to strike this hearsay evidence rose to the
level of constitutionally defective assistance.
¶ 119 For all the foregoing reasons, we are not persuaded that counsel provided
constitutionally deficient assistance. Since defendant cannot satisfy the first prong of the
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Strickland test, the failure to establish this prong bars his claim. See Cherry, 2016 IL 118728,
¶ 24; Flores, 153 Ill. 2d at 283.
¶ 120 II. Constitutional Sentencing Issue
¶ 121 Next, defendant argues that we should remand for resentencing or reduce his sentence
because his 40-year prison sentence, which was imposed for a crime committed when he was
17 years old, violates the eighth amendment of the United States Constitution (U.S. Const.,
amend. VIII) and the proportionate penalties clause of our state constitution (Ill. Const. 1970,
art. I, § 11).
¶ 122 A. Constitutional Provisions and Buffer
¶ 123 “The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees
individuals the right not to be subjected to excessive sanctions.’ ” Miller v. Alabama, 567 U.S.
460, 469 (2012) (quoting Roper v. Simmons, 543 U.S. 551, 560 (2005)). “That right,” the
United States Supreme Court has “explained, ‘flows from the basic “precept of justice that
punishment for crime should be graduated and proportioned” ’ to both the offender and the
offense.” Miller, 567 U.S. at 469 (quoting Roper, 543 U.S. at 560, quoting Weems v. United
States, 217 U.S. 349, 367 (1910)). “The concept of proportionality is central to the Eighth
Amendment.” Graham v. Florida, 560 U.S. 48, 59 (2010). “And we view that concept less
through a historical prism than according to ‘ “the evolving standards of decency that mark the
progress of a maturing society.” ’ ” Miller, 567 U.S. at 469-70 (quoting Estelle v. Gamble, 429
U.S. 97, 102 (1976), quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)).
¶ 124 Like the eighth amendment, the proportionate penalties clause of the Illinois
Constitution embodies our evolving standard of decency. People v. Miller, 202 Ill. 2d 328, 339
(2002) (“as our society evolves, so too do our concepts of elemental decency and fairness
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No. 1-17-0542
which shape the ‘moral sense’ of the community” underlying both the proportionality clause
and the eighth amendment). Specifically, 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. The
purpose of the proportionate penalties clause is to add a limitation on penalties beyond those
provided by the eighth amendment and to add the objective of restoring the offender to useful
citizenship. People v. Clemons, 2012 IL 107821, ¶ 39; People v. Fernandez, 2014 IL App (1st)
120508, ¶ 63 (“the Illinois Constitution places greater restrictions on criminal sentencing than
the eighth amendment’s prohibition”).
¶ 125 Recently, in Buffer, our supreme court found that, to prevail on a claim that a juvenile’s
life sentence 3 violated the eighth amendment, a defendant must show both (1) that he was
“subject to a life sentence, mandatory or discretionary, natural or de facto,” and (2) that “the
sentencing court failed to consider youth and its attendant characteristics.” Buffer, 2019 IL
122327, ¶ 27. As a result, a sentencing court’s failure to consider youth and its attendant
characteristics, by itself, is not enough. Our supreme court established a two-prong test. Buffer,
2019 IL 122327, ¶ 27. A defendant must show, first, that he was subject to a life sentence,
before we even reach consideration of whether the sentencing court failed to consider his youth
and its attendant circumstances. Buffer, 2019 IL 122327, ¶ 27.
¶ 126 Proceeding to the first requirement, we observe that defendant was not subject either
to a mandatory life sentence or a natural life sentence. Thus, he can satisfy this requirement
only if he can show that he was subject to a discretionary de facto life sentence.
3
As a preliminary matter, a defendant must also show that he was “sentenced for an offense
committed while a juvenile.” Buffer, 2019 IL 122327, ¶ 27. In the case at bar, defendant satisfied this
preliminary requirement.
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¶ 127 With respect to what constitutes a de facto life sentence for a juvenile offender, our
highest court found: “We hereby conclude that a prison sentence of 40 years or less imposed
on a juvenile offender does not constitute a de facto life sentence in violation of the eighth
amendment.” (Emphasis added.) Buffer, 2019 IL 122327, ¶ 41. As we already noted,
defendant’s prison sentence is exactly 40 years. Thus, applying the words of the court’s finding
to the facts of our case requires us to find that defendant’s prison sentence, which is “40 years
or less,” is not a de facto life sentence.
¶ 128 B. Other Language
¶ 129 In response to Buffer, defendant argues, first, that other language in the Buffer opinion
supports a finding that 40 years is long enough to be a de facto life sentence. Defendant argues
that, based on this other language, we should interpret Buffer to find that his sentence
constitutes de facto life.
¶ 130 According to defendant, this other language includes the following sentence from
Buffer: “In determining when a juvenile defendant’s prison term is long enough to be
considered de facto life without parole, we choose to draw a line at 40 years.” Buffer, 2019 IL
122327, ¶ 40. However, in the very next paragraph, the Buffer court clarified exactly where it
was drawing this line, namely, that “40 years or less” was not de facto life. Buffer, 2019 IL
122327, ¶ 41.
¶ 131 Defendant also observes that Justice Burke, specially concurring, wrote: “The majority
goes even further astray when it relies on section 5-4.5-105 of the Unified Code of Corrections
(730 ILCS 5/5-4.5-105 (West 2016)) to reach the conclusion that a prison term of 40 years ‘is
long enough to be considered de facto life without parole.’ ” Buffer, 2019 IL 122327, ¶ 60
(Burke, J., specially concurring) (quoting Buffer, 2019 IL 122327, ¶ 40 (majority opinion)).
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Justice Burke explained that the legislature had recently provided, prospectively, a new
sentencing scheme for defendants who were under 18 at the time their offenses were
committed. Buffer, 2019 IL 122327, ¶ 60. The new scheme “requires a sentencing court to
impose on a juvenile a minimum sentence of 40 years’ imprisonment for certain egregious first
degree murder offenses that would warrant a sentence of natural life imprisonment for an adult
offender.” (Emphasis in original.) Buffer, 2019 IL 122327, ¶ 60 (Burke J., specially
concurring) (citing 730 ILCS 5/5-4.5-105(a), (b), (c) (West 2016)). Defendant argues that this
shows that 40 years’ imprisonment for a juvenile is equal to natural life imprisonment for an
adult. However, Justice Burke specifically rejected this logic and found instead that this
showed that the legislature thought that “at least” 40 years was necessary as punishment for
certain murders, even if the offenders were minors. (Emphasis in original.) Buffer, 2019 IL
122327, ¶ 61. Thus, neither the quote from Justice Burke’s opinion nor the legislative scheme
support defendant’s argument. 4
¶ 132 Defendant also argues that this court has previously interpreted Buffer and “concluded
that a prison term of 40 years is long enough to be considered a de facto life sentence.” People
v. House, 2019 IL App (1st) 110580-B, ¶ 53. However, the defendant in House received two
consecutive natural-life sentences, so the facts of House did not require us to make any finding
as to what constituted a de facto life sentence. House, 2019 IL App (1st) 110580-B, ¶ 4. As a
result, defendant’s reliance on House for this argument is misplaced.
¶ 133 In addition, the Buffer court was aware that some defendants would fall close to the
line that it was drawing, but it believed that a categorical, bright-line rule was nonetheless
4
Also the Buffer majority noted that “[t]he legislature evidently believed that this 40-year
floor for juvenile offenders who commit egregious crimes complies with the requirements” of eighth
amendment jurisprudence, and the majority agreed with the legislature. (Emphases added.) Buffer,
2019 IL 122327, ¶¶ 39, 41.
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desirable. The court observed: “ ‘[C]lear, predictable, and uniform constitutional standards are
especially desirable’ in applying the eighth amendment.” Buffer, 2019 IL 122327, ¶ 29
(quoting Roper, 543 U.S. at 594 (O’Connor, J., dissenting)). The Buffer court stated that it
understood that drawing a line was subject to the objections always raised against categorical
rules, but nonetheless it decided “ ‘a line must be drawn.’ ” Buffer, 2019 IL 122327, ¶ 29
(quoting Roper, 543 U.S. at 574 (majority opinion)). As a result, we cannot interpret Buffer as
defendant suggests.
¶ 134 C. Mandatory Release Term
¶ 135 Next, defendant argues that his 40-year sentence, plus his 3-year mandatory supervised
release term, constitutes a 43-year total sentence and, thus, is a de facto life sentence under
Buffer.
¶ 136 In support, defendant argues that, although the Post-Conviction Hearing Act (Act)
applies only to persons “imprisoned in the penitentiary” (725 ILCS 5/122-1(a) (West 2018),
our supreme court has determined that a person serving a mandatory supervised release term
is considered imprisoned in the penitentiary for purposes of the Act. E.g., People v. Correa,
108 Ill. 2d 541, 546-47 (1985).
¶ 137 First, the court’s finding in Correa was specific to the Act. The court explained that it
was finding that a mandatory supervised release term was included because courts “must
construe [the Act] liberally to accomplish the purposes for which it was enacted.” Correa, 108
Ill. 2d at 546.
¶ 138 Second, in Buffer, the defendant was sentenced to 50 years, “followed by 3 years of
mandatory supervised release.” Buffer, 2019 IL 122327, ¶ 5. However, throughout the opinion,
the supreme court referred to defendant’s 50-year sentence. See, e.g., Buffer, 2019 IL 122327,
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No. 1-17-0542
¶ 14. If the court believed that the three years of mandatory supervised release should have
been counted, it would have referred to his 53-year sentence.
¶ 139 Third, Buffer said nothing about including a mandatory supervised release term and did
state unequivocally that “a prison sentence of 40 years or less” is not life. (Emphasis added.)
Buffer, 2019 IL 122327, ¶ 41. Thus, we cannot find that a mandatory supervised release term
enters into our calculation of a “prison sentence” for purposes of the eighth amendment. See
Buffer, 2019 IL 122327, ¶ 41.
¶ 140 Defendant further argues that, if he spends any of his supervised release term behind
bars, then his prison time will be more than 40 years. Although we understand the force of
defendant’s logic, Buffer referred to a “prison sentence,” rather than to prison time. See Buffer,
2019 IL 122327, ¶ 41. Also, defendant is arguing a hypothetical that is not present in the record
before us. Thus, we are not persuaded by this argument.
¶ 141 D. Proportionate Penalties Clause
¶ 142 Lastly, defendant argues that Buffer was decided solely under the eighth amendment of
the United States Constitution (U.S. Const., amend. VIII) and did not address our state’s
proportionate penalties clause (Ill. Const. 1970, art. I, § 11), and that defendant’s sentence
violates our state’s proportionate penalties clause in light of recent changes in juvenile
sentencing enacted by our state legislature. Defendant is correct that Buffer was decided solely
under the eighth amendment. E.g., Buffer, 2019 IL 122327, ¶¶ 13-27.
¶ 143 A sentence violates the proportionate penalties clause if “the punishment for the
offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral
sense of the community.” Miller, 202 Ill. 2d at 338.
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¶ 144 Defendant argues that his 40-year prison sentence shocks the moral sense of the
community because, first, it did not account for his rehabilitative potential, particularly the
facts in the presentence investigative report indicating that he suffered from a learning disorder,
received special education, regularly saw a grammar school counselor, and had to be
hospitalized due to his anger. Defendant also argues that the trial court failed to connect his
family support, school attendance, and employment history to his rehabilitative potential.
Defendant acknowledges that his counsel failed to preserve these issues but argues that we
should review them under the second prong of the plain error doctrine.
¶ 145 “[T]o preserve a claim of sentencing error, both a contemporaneous objection and a
written postsentencing motion raising the issue are required.” People v. Hillier, 237 Ill. 2d 539,
544 (2010). In the case at bar, defendant failed to do both. Thus, “we may review this claim of
error only if defendant has established plain error.” Hillier, 237 Ill. 2d at 545. “To obtain relief
under this rule, a defendant must first show that a clear or obvious error occurred.” Hillier, 237
Ill. 2d at 545. “In the sentencing context, a defendant must then show either that (1) the
evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as
to deny the defendant a fair sentencing hearing.” Hillier, 237 Ill. 2d at 545. Defendant argues
the latter, or second-prong error.
¶ 146 We cannot find that the trial court’s decision not to mention certain facts contained in
the presentence investigation report, or its decision not to connect the facts in the way
defendant hoped it would, rises to the level of plain error.
¶ 147 Second, defendant argues that his 40-year sentence shocks the moral sense of the
community in light of recent changes in juvenile sentencing enacted by our state legislature.
However, in the case at bar, the trial court stated at defendant’s sentencing that it was aware of
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No. 1-17-0542
recent changes in both the case law and statutory law concerning juvenile sentencing.
Exercising the discretion given to him by these new laws, the trial judge chose not to impose
the firearm enhancement, thereby reducing defendant’s maximum possible sentence from
natural life to 60 years.
¶ 148 Lastly, we cannot find that a 40-year sentence for a 17-year-old who committed a
premeditated, gangland-style execution shocks the moral sense of the community. The
evidence established that defendant and codefendant were wearing hoodies on a warm day and
that Hatchett instantly realized that there was going to be a shooting. They approached the
victim—not the other way around. Not only did they approach him, they chased him. In the
store, defendant gunned down an unarmed victim, who was trying to get away from defendant,
thereby posing no immediate threat to defendant. After the execution, both Peyrefitte and
Cooks testified about how calm and nonchalant defendant appeared. Defendant did not have
the appearance of a nervous, jumpy juvenile but rather the calm of a cold-blooded killer. For
all these reasons, we cannot find that a 40-year sentence for this 17-year-old defendant shocks
the moral sense of the community.
¶ 149 III. Statutory Sentencing Issue
¶ 150 Defendant also argues that the trial court committed plain error when it allegedly failed
to apply section 5-4.5-105 of the Unified Code of Corrections (Code) at defendant’s sentencing
hearing. 730 ILCS 5/5-4.5-105 (West 2016). Defendant concedes that his counsel failed to
raise this issue in the court below and, thereby, forfeited the issue for our review. However, he
asks us to consider it either as second-prong plain error or as ineffective assistance of counsel.
As we already explained above, to show plain error in the sentencing context under the second
prong, a defendant must show that “the error was so egregious as to deny the defendant a fair
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sentencing hearing.” Hillier, 237 Ill. 2d at 545. However, the first step in any plain-error
analysis is to determine whether a clear or obvious error occurred. People v. Sebby, 2017 IL
119445, ¶ 49. For the reasons explained below, we cannot find any error on the part of trial
court or counsel. See supra ¶¶ 93-97 (setting forth the Strickland test for ineffective assistance
of counsel).
¶ 151 Defendant’s claim requires us to interpret section 5-4.5-105 of the Code. When we
construe the meaning of a statute, “the primary objective of this court is to ascertain and give
effect to the intention of the legislature, and all other rules of statutory construction are
subordinated to this cardinal principle.” Metzger v. DaRosa, 209 Ill. 2d 30, 34 (2004). “The
plain language of the statute is the best indicator of the legislature’s intent.” Metzger, 209 Ill.
2d at 34-35. “When the statute’s language is clear, it will be given effect without resort to other
aids of statutory construction.” Metzger, 209 Ill. 2d at 35. We review questions of statutory
interpretation de novo. Metzger, 209 Ill. 2d at 34. De novo consideration means that we
perform the same analysis that a trial judge would perform. Ramirez v. Chicago Board of
Election Commissioners, 2020 IL App (1st) 200240, ¶ 11.
¶ 152 Section 5-4.5-105(a) requires a trial court to consider an additional list of mitigating
factors at a juvenile’s sentencing hearing. 730 ILCS 5/5-4.5-105 (West 2016). However, our
supreme court has found that “the trial court’s obligation set forth in subsection (a)” to consider
these additional factors is temporally limited by “language in that same subsection.” People v.
Hunter, 2017 IL 121306, ¶ 48; People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193,
¶ 34 (in assessing the temporal reach of a statutory amendment, the first step is “to determine
whether the text of the amended provision, itself, clearly expresses the legislature’s intent”).
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¶ 153 Section 5-4.5-105(a) provides that, “[o]n or after the effective date of this amendatory
Act of the 99th General Assembly, when a person commits an offense and the person is under
18 years of age at the time of the commission of the offense, the court, at the sentencing
hearing,” shall consider certain additional mitigating factors. 730 ILCS 5/5-4.5-105(a) (West
2016). Isolating just the temporal limit, the section states: “[o]n or after the effective date ***
when a person commits an offense.” 730 ILCS 5/5-4.5-105(a) (West 2016). The effective date
occurs first; and then “[o]n or after” it, “when a person commits an offense,” the court “shall”
or will consider the listed factors. Cinkus v. Village of Stickney Municipal Officers Electoral
Board, 228 Ill. 2d 200, 220 (2008) (when the statutory language is phrased in a particular tense,
that must be given full effect). Thus, the plain language of the section shows that it applies
only to offenses committed on or after the effective date, which was January 1, 2016. Hunter,
2017 IL 121306, ¶ 46. The offense in this case occurred on September 20, 2013. Since this
offense was not committed on or after the effective date, this section did not apply at
defendant’s sentencing.
¶ 154 Defendant argues that this section applies to him because his sentencing occurred on
February 17, 2017, after the effective date of January 1, 2016. As we noted above, the temporal
limit is phrased in terms of “when a person commits an offense,” not when a person is
sentenced. Not only is this the plain language of the act, it was also a reasonable choice by the
legislature. People v. Richardson, 2015 IL 118255, ¶ 11 (“it was reasonable for the legislature
to distinguish between offenses committed before and offenses committed after the
amendment’s effective date”). It was reasonable for the legislature to choose to subject
offenders who committed the same offenses on the same day to the same set of considerations,
regardless of when their sentencing date happened to be. The legislature chose not to have
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every juvenile offender resentenced according to these considerations, and rewarding those
with a later sentencing date could have possibly rewarded offenders who had escaped justice
longer. Cf. Richardson, 2015 IL 118255, ¶ 11 (it was reasonable for the legislature to avoid
remands for additional sentencing hearings). Thus, the legislature spoke plainly and
reasonably. See People v. Buffer, 2019 IL 122327, ¶ 29 (drawing a line will always be subject
to objections by those falling on the wrong side of it).
¶ 155 CONCLUSION
¶ 156 For all the foregoing reasons, we find that defendant’s trial counsel provided effective
assistance and that defendant’s 40-year sentence did not violate the eighth amendment, the
proportionate penalties clause, or statutory law.
¶ 157 Affirmed.
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No. 1-17-0542
Cite as: People v. Gunn, 2019 IL App (1st) 170542Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-CR-
21956(01); the Hon. Timothy Joseph Joyce, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Kathryn L. Oberer, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, Clare Wesolik Connolly, and Miles J. Keleher,
Appellee: Assistant State’s Attorneys, of counsel), for the People.
47