People v. Roberson , 2021 IL App (1st) 181726-U ( 2021 )

2021 IL App (1st) 181726-UFOURTH DIVISION
June 30, 2021
No. 1-18-1726
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. )
) No. 14 CR 11753 (02)
KENDALL ROBERSON, )
)
Defendant-Appellant. )
) Honorable
) Allen F. Murphy,
) Judge Presiding.
______________________________________________________________________________
JUSTICE REYES delivered the judgment of the court.
Justice Lampkin concurred in the judgment.
Presiding Justice Gordon dissented.
ORDER
¶1 Held: Affirming the sentence of the trial court where defendant’s 40-year sentence did
not violate the eighth amendment of the U.S. Constitution or the proportionate
penalties clause of the Illinois Constitution, and the trial court’s sentence was not
otherwise excessive or otherwise imposed in error.
¶2 After a jury trial, defendant Kendall Roberson was found guilty of first degree murder
and attempted murder under an accountability theory and sentenced to a cumulative term of 40
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years’ imprisonment. Defendant was 17 years old at the time of the offense. On appeal,
defendant maintains that he is entitled to a new sentencing hearing because the trial court failed
to consider the required statutory mitigating factors set forth in section 5-4.5-105(a) of the
Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-105(a) (West 2018)). He further argues
that his de facto life sentence violates the United States and Illinois Constitutions where he is not
one of the rare youths warranting such a term and that his sentence is otherwise excessive. For
the reasons that follow, we affirm.
¶3 BACKGROUND
¶4 As defendant does not challenge the sufficiency of the evidence and raises issues solely
related to his sentencing, we set forth only those facts necessary for the consideration of this
appeal.
¶5 Defendant was charged by indictment, along with Essie Nooner (Nooner) and William
Gillyard (Gillyard), with the murder of John McIntyre (McIntyre) and the attempted murder of
Najee Kellum (Kellum) under an accountability theory. The State’s evidence at trial established
that on June 6, 2014, the 17-year-old defendant called McIntyre and asked if he wanted to
purchase two televisions. After McIntyre agreed, defendant instructed him to meet him at
defendant’s home. McIntyre then drove with Kellum to defendant’s residence. While they
waited for McIntyre to arrive, Gillyard declared to defendant, Nooner, Tamara Ivy (Nooner’s
girlfriend), Iesha Steward (defendant’s girlfriend), and Durrell Roberson (defendant’s brother),
that he was going to shoot McIntyre in the back of the head so he could take money and drugs
from McIntyre. Gillyard also stated that if anyone else was with McIntyre, they would be shot as
well.
¶6 When McIntyre arrived, defendant, Nooner, and Gillyard got into the back seat of
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McIntyre’s vehicle. As McIntyre was pulling into the driveway of the abandoned house where
the televisions were being kept, Gillyard shot McIntyre in the head and shot Kellum twice,
striking her once in the side of her face and once in her wrist. Kellum ran from the vehicle and
defendant, Nooner, and Gillyard dispersed. McIntyre was pronounced dead at the hospital a
short time later.
¶7 Kellum identified defendant as one of the offenders in a photo array. After waiving his
Miranda rights, defendant was interviewed by detectives with his mother present. His
videotaped interview was admitted into evidence and published to the jury. During his
interview, defendant admitted that he, Gillyard, and Nooner had been planning to rob McIntyre
since “the beginning of summer” and that the plan to murder McIntyre was solidified the day of
the robbery. Defendant admitted he called McIntyre to set up the robbery and that he knew
Gillyard intended to murder McIntyre. Defendant, however, denied he intended to murder
McIntyre. According to defendant, he only wanted to rob McIntyre because he was “money
hungry.”
¶8 The State rested its case and defendant presented no evidence. After hearing closing
arguments and jury instructions, the jury found defendant guilty of first degree murder and
attempted murder.
¶9 The matter then proceeded to sentencing and the trial court ordered a presentence
investigation report (PSI). The PSI indicated that defendant was raised by both his parents with
whom he had a good relationship. He is one of four children and attended New Covenant Baptist
Church with his family. Defendant described his parents as loving, caring, and supportive. He
denied any abuse or neglect and any Department of Children and Family Services involvement.
Defendant further stated that his paternal grandparents played an active role in his upbringing.
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Regarding his schooling, defendant completed ninth grade and was currently enrolled in high
school while in custody. Defendant planned to complete his high school education. Defendant
did admit, however, that he was suspended seven or eight times from high school prior to his
incarceration for tardiness, absenteeism, and once for stealing someone’s cellular telephone.
Defendant was never employed and relied solely on his parents for support. He was never
involved in a street gang. He also was in good physical and mental health and has no learning
disabilities. Defendant did admit to smoking cannabis daily since the age of 14.
¶ 10 At the sentencing hearing, the State presented the following evidence in aggravation.
The State introduced the victim impact statement of John McIntyre, Sr., the victim’s father, who
stated the impact of his child’s death weighed heavily on him, especially since his son’s murder
was “planned and premeditated” by his own friends. Mr. McIntyre stated, “These were not
strangers to my son, these were guys that he thought were his friends. John lived in the house
that [defendant]’s family actually lives in now. These were guys that ate over at John’s house,
they played ball together, hung out together.” The victim’s mother, Tonya Walker, echoed Mr.
McIntyre’s statement and stressed that the perpetrators of this offense, including defendant, grew
up on the same street as her son and had known him for their whole lives. The State then argued
in aggravation that while this case was pending defendant was charged with three other offenses
including possession of a weapon in a penal institution and public indecency. The State
maintained that defendant’s behavior is not that of “somebody who is really contemplative of
their actions” and requested a “just sentence.”
¶ 11 In mitigation, defense counsel discussed the factors applicable to offenders under the age
of 18 as found in section 5-4.5-105 of the Code. Specifically, defense counsel argued that the
trial court should not apply any firearm enhancement to defendant’s sentence. Defense counsel
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observed that at the time of the offense, defendant was three months past his seventeenth
birthday. He further argued defendant acted impetuously where the murder was planned only
“hours before” and that Gillyard and Nooner, who were older than defendant, had influenced
him. Defense counsel also observed that defendant had significant rehabilitative potential and
noted that defendant’s family was present at every court date. Defendant also attended church
regularly and had a letter in support from a reverend of his church. Lastly, defense counsel
emphasized defendant’s “minimal involvement” in the offense where defendant was not armed
with a firearm, did not harm anyone, and “never took anything.” Defendant also had no prior
criminal history. Defense counsel, citing Miller v. Alabama, 567 U.S. 460 (2012), requested the
minimum sentence of 26 years.
¶ 12 After considering the law involving juvenile sentences in Illinois and all the factors in
aggravation and mitigation, the trial court found that the minimum sentence with firearm
enhancements (56 years) was excessive considering the level of defendant’s culpability in the
commission of the offense and therefore declined to impose the firearm enhancements. The
court then sentenced defendant to 30 years to be served at 100 percent time for first degree
murder and 10 years for attempted murder to be served at 85 percent time for a total sentence of
40 years’ imprisonment and 38.5 years in custody. Defendant was also sentenced to a term of
three years’ mandatory supervised release.
¶ 13 In sentencing defendant, the trial court stated that “[t]he violence in this case is the most
unspeakable violence I have ever beared [sic] witness to. It is truly shocking what occurred
here.” The trial court noted that the armed robbery was premeditated, with Gillyard boasting in
public that he was going to shoot McIntyre in the back of the head. The court also noted that
there were varying levels of culpability in the offense with Gillyard “being the worst” and the
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least culpable being defendant. The trial court further observed that defendant came from a
decent family, was young at the time of the offense, and was enrolled at high school with no
prior criminal history.
¶ 14 This appeal follows.
¶ 15 ANALYSIS
¶ 16 On appeal, defendant argues we should remand this matter for resentencing because his
40-year sentence, which was imposed for an offense he 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) as
applied to him. He further asserts that he is entitled to a new sentencing hearing as the trial court
failed to consider the required statutory mitigating factors of section 5-4.5-105(a) of the Code
applicable to juvenile offenders. For the reasons which follow, we affirm.
¶ 17 Eighth Amendment
¶ 18 The eighth amendment’s prohibition of cruel and unusual punishment guarantees
individuals the right not to be subjected to excessive sanctions. Miller, 567 U.S. at 469. When
the offender is a juvenile and the offense is serious, there is a genuine risk of disproportionate
punishment. In Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010),
and Miller, the United States Supreme Court addressed that risk and unmistakably instructed that
youth matters in sentencing. People v. Holman, 2017 IL 120655, ¶ 33. Roper held that the
eighth amendment prohibited capital sentences for juveniles who commit murder. Roper, 543
U.S. at 578-79. Graham held that the eighth amendment prohibited mandatory life sentences for
juveniles who commit nonhomicide offenses. Graham, 560 U.S. at 82. And Miller held that the
eighth amendment prohibited mandatory life sentences for juveniles who commit murder.
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Miller, 567 U.S. at 489-90. Our supreme court has read the eighth amendment protections
afforded to juvenile sentencing as extending to discretionary life sentences. Holman, 2017 IL
120655, ¶ 40.
¶ 19 In Buffer, our supreme court found that, to prevail on a claim that a juvenile’s sentence
violated the eighth amendment, a defendant must demonstrate 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.” People v. 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. People v. Gunn, 2020 IL App (1st) 170542, ¶ 125. Thus, a defendant
must first establish he was subject to a life sentence before we are to consider whether the
sentencing court failed to consider his youth and its attendant circumstances. Id. (citing Buffer,
2019 IL 122327, ¶ 27). In this instance, defendant was not subject to either a mandatory life
sentence or a natural life sentence; therefore, he can satisfy this requirement only if he can
demonstrate he was subject to a discretionary de facto life sentence.
¶ 20 We are cognizant of the fact while this appeal was pending the U.S. Supreme Court
issued its decision in Jones v. Mississippi, 593 U.S. ––––, 141 S. Ct. 1307 (2021). Therein, it
considered a discretionary sentence of life without parole imposed upon a 15-year-old juvenile
offender where the sentencer nevertheless had discretion to “consider the mitigating qualities of
youth” and impose a lesser punishment. Id. at 1311. The Supreme Court concluded that, in such
circumstances, the eighth amendment does not require a court imposing a sentence of life
without parole to make “a separate factual finding that the defendant is permanently incorrigible,
or at least provide an on-the-record sentencing explanation with an implicit finding that the
defendant is permanently incorrigible.” Id. at 1318. Importantly, however, the Supreme Court
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explicitly stated that the decision in that case “does not overrule Miller or Montgomery.” Id. at
1321. The Supreme Court also noted that states are free to impose “additional sentencing limits
in cases involving defendants under 18” or “require sentencers to make [specific] factual
findings before sentencing an offender under 18 to life without parole.” Id. at 1323. In fact, the
Court held that states are not limited in the procedures they choose to apply in determining when,
as well as whether, a juvenile offender can ever be sentenced to life. Id.¶ 21 Whether Jones has an impact on Illinois state law need not be addressed in this case as
Jones involved a 15-year-old sentenced under Mississippi law to a discretionary life sentence
without parole and, thus, no issue existed regarding whether or not the eighth amendment
applied. In the present case, however, whether defendant’s sentence violated the eighth
amendment is dependent upon the length of sentence he received. Thus, whether defendant
received a de facto life sentence is a threshold issue, which we now turn to address.
¶ 22 De Facto Life Sentence
¶ 23 Defendant argues his 40-year sentence is a de facto life sentence under Buffer. While
defendant acknowledges that the Buffer court wrote, “a prison sentence of 40 years or less ***
does not constitute a de facto life sentence” (Buffer, 2019 IL 122327, ¶ 41), he asserts, however,
that other language in Buffer, including Justice Burke’s dissent, suggests that a 40-year sentence
is a de facto life sentence.
¶ 24 We find our opinion in Gunn to be dispositive of this issue. In Gunn, the 17-year-old
defendant was convicted of first degree murder and sentenced to 40 years’ imprisonment. Gunn,
2020 IL App (1st) 170542, ¶ 1. On appeal, defendant maintained that his 40-year sentence was a
de facto life sentence under Buffer. We disagreed, finding that our supreme court expressly
found that “ ‘a prison sentence of 40 years or less imposed on a juvenile offender does not
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constitute a de facto life sentence in violation of the eighth amendment.’ ” (Emphasis in
original.) Id. ¶ 127 (quoting Buffer, 2019 IL 122327, ¶ 41). As the defendant’s sentence was
exactly 40 years, applying the words of Buffer, the defendant’s sentence was not a de facto life
sentence. Id. Similarly, defendant here was also sentenced to exactly 40 years and,
consequently, his sentence was not a de facto life sentence. Furthermore, this conclusion has
been echoed in subsequent cases. See People v. Benford, 2021 IL App (1st) 181237, ¶ 14
(rejecting the defendant’s claim that his 40-year sentence was a de facto life sentence); People v.
Villalobos, 2020 IL App (1st) 171512, ¶ 63 (rejecting the juvenile defendant’s claim that his 40-
year sentence amounted to a de facto life sentence under Buffer on the ground that “[t]here is no
way to interpret ‘40 years or less’ as ‘40 years or more’ ”).
¶ 25 Defendant further argues that his 3-year term of mandatory supervised release “requires
him to serve a sentence over 40 years.” Considering this exact issue, the Gunn court examined
Buffer and observed that, in Buffer, the defendant was sentenced to 50 years followed by 3 years
of mandatory supervised release, yet our supreme court only referred to defendant’s “50-year
sentence.” Gunn, 2020 IL App (1st) 170542, ¶ 138. The Gunn court stated, “If the [supreme]
court believed that the three years of mandatory supervised release should have been counted, it
would have referred to his 53-year sentence.” Id. In addition, the Gunn court also observed that
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.).” Id.
¶ 139. Thus, we are not persuaded by defendant’s argument that his 3-year mandatory
supervised release term pushes his 40-year sentence over “the line” into a de facto life sentence.
See id.; see also Benford, 2021 IL App (1st) 181237, ¶ 15.
¶ 26 We further observe that defendant was sentenced to 30 years for first degree murder and
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10 years for attempted murder for a total of 40 years’ imprisonment. As noted by the State and
the trial court, defendant’s 30-year term is to be served at 100% and his 10-year term is to be
served at 85%. Accordingly, defendant will actually be imprisoned for 38.5 years. Nevertheless,
regardless of whether we consider defendant’s term to be 40 years or 38.5 years, the result is the
same—defendant’s sentence is not a de facto life sentence. Accordingly, defendant’s eighth
amendment claim fails. See Buffer, 2019 IL 122327, ¶ 27.
¶ 27 Proportionate Penalties Clause
¶ 28 Defendant maintains, however, that even if his sentence does not violate the eighth
amendment, it violates the broader Illinois proportionate penalties clause as applied to him.
Defendant argues that his 40-year sentence shocks the moral sense of the community because it
did not account for his rehabilitative potential. Defendant states that “research suggests that he
would grow out of such a violent phase in five to 10 years—not 40.” He further notes that his
criminal history included no adjudications prior to the instant offense. He also contends that he
has the support of his family and attended school. Defendant maintains that the trial court “never
connected this information” to his rehabilitative potential.
¶ 29 The defendant raises an as-applied constitutional challenge, which requires a showing
that his sentence violates the constitution as it applies to the facts and circumstances of his case.
People v. Thompson, 2015 IL 118151, ¶ 36. In contrast, a facial challenge requires a showing
that the sentence is unconstitutional under any set of facts, i.e., the specific facts related to the
challenging party are irrelevant. Id. An as-applied constitutional challenge is a legal question
that we review de novo. People v. Johnson, 2018 IL App (1st) 140725, ¶ 97.
¶ 30 The Illinois Constitution 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
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citizenship.” Ill. Const. 1970, art 1, § 11. 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.” People v. Miller, 202 Ill. 2d 328, 338
(2002).
¶ 31 We cannot find that a 40-year sentence for a 17-year-old who assisted in planning the
robbery knowing that Gillyard intended to murder McIntyre shocks the moral conscience. First,
we observe that defendant was sentenced to 30 years for the murder of McIntyre and 10 years for
the attempted murder of Kellum. Regarding defendant’s 30-year sentence, defendant admitted
when interviewed by detectives (with his mother present) that he, Gillyard, and Nooner had been
planning to rob McIntyre since the beginning of the summer of 2014. To facilitate this plan,
defendant called McIntyre and asked him if he wanted to purchase two televisions. When
McIntyre indicated he would, defendant directed McIntyre to come over to his home. On the day
of the robbery, defendant, who had known McIntyre as a friend for many years, stood by as
Gillyard stated that McIntyre would be shot in the head during the robbery. Instead of
abandoning the plan and seeking assistance, defendant upon entering McIntyre’s vehicle went
through with the robbery. As the trial court noted, Gillyard was “true to his word” and shot
McIntyre in the head. Defendant then ran away out of fear. A 30-year sentence for an offense
such as this does not shock the moral conscience.
¶ 32 As to defendant’s 10-year sentence for attempted murder, the State’s evidence
demonstrated that prior to executing the robbery, Gillyard told a group of individuals (including
defendant) that if another person was in the vehicle accompanying McIntyre he would kill them
as well. Accordingly, defendant knew of Gillyard’s intent to kill both McIntyre and Kellum.
The evidence further demonstrated that Gillyard shot McIntyre in the back of the head at close
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range and fired his weapon again at Kellum in close range. She was struck in the face and wrist
by the bullets, requiring surgery. As the facts of this crime demonstrate, it was not committed
impetuously—it was calculated and deliberate—and defendant was able to appreciate the risks
and consequences of committing such an offense. Furthermore, the deliberate nature of this
offense is not indicative or reflective of someone who is acting in an immature manner. See
Buffer, 2019 IL 122327, ¶ 19. While defendant had no prior criminal history, this robbery had
been planned for at least two weeks and defendant did nothing to prevent it from occurring.
Indeed, defendant’s role in this offense was not a passive one and, in this way, defendant’s
cumulative 40-year sentence represents his personal culpability. Therefore, we find that
defendant’s 40-year sentence does not shock the moral conscience. See People v. Villalobos,
2020 IL App (1st) 171512, ¶ 70 (finding a 16-year-old’s 40-year sentence for first degree murder
did not shock the moral conscience so as to violate the proportionate penalties clause).
¶ 33 At this juncture, we find it necessary to address the dissent, which would reverse and
remand defendant’s sentence as it finds defendant’s 40-year sentence shocks the moral sense of
community. In so finding, the dissent compares the facts of defendant’s case to those of Gunn
wherein the Gunn defendant also received a 40-year sentence. Gunn, 2020 IL App (1st) 170542,
¶ 1. First, it is important to note that Gunn was found guilty of the first-degree murder of a
single victim. Id. In this case, there were two victims—McIntyre was shot in the head execution
style and Kellum was shot in the face and hand. The evidence clearly demonstrated that Gillyard
aimed his weapon at Kellum’s head and had previously made statements that he would kill any
witnesses. Defendant was thus appropriately sentenced to 30 years for first-degree murder and
10 years for attempted first degree murder. Second, the dissent engages in cross-case
comparative sentencing, a practice which has been rejected by our supreme court. See People v.
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Fern, 189 Ill. 2d 48, 55 (1999) (finding that “such an analysis does not comport with our
sentencing scheme’s goal of individualized sentencing and would unduly interfere with the
sentencing discretion vested in our trial courts”). To reiterate the words of our supreme court,
“The propriety of the sentence imposed in a particular case cannot properly be judged by the
sentence imposed in another, unrelated case.” Id. at 56. Viewing the record before us, we
cannot say that the trial court’s sentence shocks the moral sense of the community.
¶ 34 Statutory Sentencing Error
¶ 35 Defendant also asserts that the trial court committed plain error when it allegedly failed to
apply section 5-4.5-105(a) of the Code (730 ILCS 5/5-4.5-105(a) (West 2018)) at his sentencing
hearing. Defendant acknowledges that defense counsel did not object to this error nor did he
include it in his motion to reconsider sentence. He asks, however, that we review it under both
prongs of the plain-error doctrine or, in the alternative, for ineffective assistance of counsel. To
preserve a claim of sentencing error, a defendant must make a contemporaneous objection and
file a written posttrial motion raising the issue. People v. Hillier, 237 Ill. 2d 539, 544-45 (2010).
Yet, under the plain error doctrine, “[p]lain errors or defects affecting substantial rights may be
noticed [on appeal] although they were not brought to the attention of the trial court.” Ill. S. Ct.
R. 615(a) (eff. Jan. 1, 1967). In the sentencing context, a defendant must demonstrate 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 (citations omitted).
“To obtain relief under this rule, a defendant must first establish that a clear or obvious error
occurred.” Id. This is because without reversible error, “there can be no plain error.” People v.
Mitchem, 2019 IL App (1st) 162257, ¶ 37.
¶ 36 At issue here is section 5-4.5-105(a) of the Code which provides that, “[o]n or after the
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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 2018).
¶ 37 Again, we find Gunn to be dispositive. In that case, the defendant argued that the trial
court committed plain error when it failed to apply section 5-4.5-105(a) of the Code at the
defendant’s sentencing hearing. The Gunn court observed that 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. Applying Hunter and examining the plain language of section 5-4.5-105(a) of the Code,
the Gunn court found it applied “only to offenses committed on or after the effective date, which
was January 1, 2016.” Gunn, 2020 IL App (1st) 170542, ¶ 153 (citing Hunter, 2017 IL 121306,
¶ 46). The offense in this case occurred on June 6, 2014. Since this offense was not committed
on or after the effective date (January 1, 2016), this section did not apply at defendant’s
sentencing hearing. Accordingly, defendant’s contention of error fails.
¶ 38 In addition, the Gunn court found that the fact a sentencing hearing occurred after the
effective date of section 105(a) of the Code did not alter the temporal limitation imposed by the
legislature:
“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
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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 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.”
Id. ¶ 154.
Accordingly, we are not persuaded by defendant’s argument that section 105(a) applies to him as
his sentencing occurred after the effective date of the statute.
¶ 39 Sentence Excessive
¶ 40 Lastly, defendant maintains that his sentence is excessive as it fails to reflect his
rehabilitative potential and the substantial mitigating factors present in this case. Defendant
notes his support from family and community demonstrate that he is “very likely to become an
upstanding member of the community when he is released.” He requests we reduce his sentence
to the minimum 26 years or remand the matter for resentencing.
¶ 41 A sentence within the appropriate sentencing range is generally accorded great deference
by this court. People v. Colon, 2018 IL App (1st) 160120, ¶ 65. We accordingly will not alter a
defendant’s sentence absent an abuse of discretion. Id. “Our supreme court has found that, with
respect to a sentence, an abuse of discretion occurs when the sentence is greatly at variance with
the spirit or purpose of the law or manifestly disproportionate to the nature of the offense.” Id.¶ 42 The sentencing range in this case was 20 to 60 years for first degree murder, so
defendant’s 30-year sentence fell within that range and is presumed to be proper. See People v.
Knox, 2014 IL App (1st) 120349, ¶ 46. In addition, the sentencing range for attempted murder is
6 to 30 years and therefore defendant’s 10-year sentence is also within such range. See 730
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ILCS 5/5-4.5-25 (West 2018).
¶ 43 We do not find that defendant’s sentence is greatly at variance with the spirit or purpose
of the law or manifestly disproportionate to the nature of the offense. First, defendant was
sentenced at the mid-range for murder. The evidence demonstrated that defendant was friends
with McIntyre at the time of the offense and used his friendship with McIntyre to lure McIntyre
to defendant’s home. As previously noted, this plan was deliberate and had been contemplated
by defendant, Gillyard, and Nooner for at least two weeks before they acted on it. What
defendant appears to forget is that there were two victims in this case, McIntyre (who was
murdered) and Kellum (who was shot in the face). Defendant was sentenced to the lower range
for attempted murder despite the evidence establishing that defendant was aware that Gillyard
intended to kill any individual who was with McIntyre during the robbery. Moreover, while
defendant admitted that the motive for robbing McIntyre was money, there was no motive for
shooting Kellum other than just inflicting harm on another person.
¶ 44 The record and the trial court’s ultimate sentence demonstrates that the trial court took
into consideration the mitigating factors, particularly defendant’s potential for rehabilitation.
This was established through defendant’s lack of prior criminal history, his strong family
upbringing, and his pursuit of education. The presence of mitigating factors, however, does not
necessarily require a minimum sentence. See People v. Contursi, 2019 IL App (1st) 162894,
¶ 25. Furthermore, while the trial court did not render express findings as to each of the section
105(a) factors, such iteration is not required and we may presume that the trial court properly
considered all the factors in aggravation and mitigation based on this record. See People v.
Bryant, 2016 IL App (1st) 140421, ¶ 16. The trial court also considered defendant’s level of
culpability, finding that defendant had the lowest culpability out of the three perpetrators.
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Moreover, before the trial court, defendant argued the same mitigating factors he advances on
appeal; namely, that the support from his family and community demonstrates he is “very likely
to become an upstanding member of the community” upon his release. We will not
independently reweigh the factors and substitute our judgment for that of the trial court but will
presume that the court considered all relevant mitigating factors prior to sentencing. See People
v. Johnson, 2020 IL App (1st) 162332, ¶ 95. The sentence imposed by the trial court falls well
within the statutory range and is far from disproportionate when compared to the cold-blooded
nature of this crime. We therefore conclude that the defendant’s cumulative 40-year sentence
was not an abuse of discretion.
¶ 45 CONCLUSION
¶ 46 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.
¶ 47 Affirmed.
¶ 48 PRESIDING JUSTICE GORDON, dissenting:
¶ 49 First, I must write separately, because the majority’s Rule 23 order does not acknowledge
the full impact of the United States Supreme Court’s opinion in Jones v. Mississippi, 593 U.S.
__, 141 S. Ct. 1307 (2021), on issues before us. Second, I dissent, since I would reverse and
remand for resentencing for reasons that I explain below.
¶ 50 In the case at bar, defendant received a discretionary 40-year sentence. Supra ¶ 12. The
Jones court found that, under the eighth amendment, “a discretionary sentencing procedure
suffices to ensure individualized consideration of a defendant’s youth.” Jones, 593 U.S. at __,
141 S. Ct. at 1321. If that was all the court wrote, then a discretionary sentence such as
defendant’s sentence would be beyond the reach of an eighth-amendment challenge, such as the
one defendant has made.
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¶ 51 However, the Jones court was careful to carve out exceptions to its blanket statement,
finding: (1) that it did not apply to as-applied claims under the eighth amendment or claims of
disproportionality under the eighth amendment; and (2) that it did not preclude states from
imposing additional sentencing limits under their own constitutions and statutes. Jones, 593 U.S.
at __, 141 S. Ct. at 1322-23.
¶ 52 The latter is particularly important, since this court has repeatedly found that our own
state’s proportionate penalty clause provides broader protections than the eighth amendment
provides. People v. Franklin, 2020 IL App (1st) 171628, ¶ 51 (“the proportionate penalties
clause offers a broader path to the same types of relief”); accord People v. Glinsey, 2021 IL App
(1st) 191145, ¶ 40; People v. Jones, 2021 IL App (1st) 180996, ¶ 14. “The purpose of the
proportionate penalties clause is to add a limitation beyond those provided by the eighth
amendment.” People v. Minniefield, 2020 IL App (1st) 170541, ¶ 35; accord Glinsey, 2021 IL
App (1st) 191145, ¶ 43; Jones, 2021 IL App (1st) 180996, ¶ 15; Franklin, 2020 IL App (1st)
171628, ¶ 55. “Thus, the proportionate penalties clause goes further than the eighth amendment
in offering protection against oppressive penalties and sentences.” Minniefield, 2020 IL App
(1st) 170541, ¶ 35; accord Glinsey, 2021 IL App (1st) 191145, ¶ 43; Jones, 2021 IL App (1st)
180996, ¶ 15.
¶ 53 Although our own proportionate penalties clause is broader, the Illinois Supreme Court
decided both People v. Buffer, 2019 IL 122327, ¶¶ 13, 25, and People v. Holman, 2017 IL
120655, ¶¶ 33, 40, 41, exclusively under the eighth amendment, thereby raising the question of
their continued vitality in a post-Jones world. In the case at bar, the majority applied both Buffer
and Holman without discussing whether these cases are still good law.
¶ 54 First, in Holman, the Illinois Supreme Court found that the United States Supreme
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Court’s eighth-amendment jurisprudence applied to discretionary sentences. Specifically, our
supreme court found that a discretionary life sentence for a juvenile offender “violate[s] the
eighth amendment, unless the trial court considers youth and its attendant characteristics.”
Holman, 2017 IL 120655, ¶ 40. The Illinois Supreme Court provided a list of those attendant
characteristics and found that a sentencing court must consider this list or some variant of it, in
order to satisfy the eighth amendment. Holman, 2017 IL 120655, ¶¶ 43-46. By contrast, in
Jones, the United States Supreme Court found that a discretionary procedure generally provides
all the safeguards to which a juvenile is entitled under the eighth amendment. Jones, 593 U.S. at
__, 141 S. Ct. at 1319. The United States Supreme Court found that, if a sentencing court had
the discretion to consider youth, then, by necessity, the sentencing court must have considered it,
and no “on-the-record explanation” is required.” Jones, 593 U.S. at __, 141 S. Ct. at 1319-20.
¶ 55 Even though the Illinois Supreme Court decided Holman solely under the eighth
amendment, the logic and reasoning by our supreme court in Holman also set a floor or
minimum for our own proportionate penalties clause. In other words, if our court understood the
narrower eighth amendment to guarantee these protections, then our own broader clause must
also guarantee them as a minimum or baseline. Since the guarantees of own proportionate
penalty clause do not change when the United States Supreme Court’s eighth-amendment
jurisprudence does, Holman is still good law under our own Illinois constitution.
¶ 56 Second, in Buffer, the Illinois Supreme Court found that, under the eighth amendment, a
life sentence for a juvenile—including a discretionary sentence— was a sentence over 40 years.
Buffer, 2019 IL 122327, ¶¶ 25, 41. While making this numerical finding exclusively under the
eighth amendment, our supreme court determined this number based solely on an examination of
our own state’s recent legislative enactments. Buffer, 2019 IL 122327, ¶¶ 34, 37-40. Our
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supreme court explained that “the entity best suited” to chart a numerical course was the Illinois
“General Assembly.” Buffer, 2019 IL 122327, ¶ 34. The 40-year number was determined, not
by an examination of federal laws or laws in the various 50 states, but rather “charted” by our
own state legislature. Buffer, 2019 IL 122327, ¶ 34. While deciding the case under the eighth
amendment (Buffer, 2019 IL 122327, ¶ 41), our supreme court also found that “[t]his conclusion
accords with Illinois law” (Buffer, 2019 IL 122327, ¶ 35). Thus, Buffer, like Holman, continues
to apply to discretionary sentences pursuant to our state’s proportionate penalties clause.
¶ 57 While the United States Supreme Court’s eighth-amendment jurisprudence is in flux, 1
and since Jones casts doubt on the continued vitality of Buffer and Holman under the federal
constitution’s eighth amendment, the sentencing claims by a juvenile or a young adult in an
Illinois court are better evaluated under our own, broader, proportionate penalties clause.
¶ 58 I must respectfully disagree with the majority’s statement that “whether Jones has an
impact on Illinois law need not be addressed in this case.” Supra ¶ 21. As I previously
explained, the governing Illinois precedent, such as Buffer and Holman, was decided solely
under the eighth amendment and, thus, Jones’ impact on those cases must be considered. The
majority writes that Jones’ impact need not be considered because, in Jones, “no issue existed
regarding whether or not the eighth amendment applied.” Supra ¶ 21. The eighth amendment’s
prohibition against cruel and unusual punishment always applies, to every criminal case; the
question is whether it was violated. The Jones court found no facial violation to the eighth
amendment because the sentence before it was discretionary. Jones, 593 U.S. at __, 141 S. Ct. at
1
Justice Sotomayor observed that Jones represented “an abrupt break from precedent”
and that the “Court is fooling no one” when it writes otherwise. Jones, 593 U.S. at __, 141 S.Ct.
at 1328 (Sotomayor, J., dissenting). Accord Jones, 593 U.S. at __, 141 S. Ct. at 1323 (Thomas,
J., specially concurring) (“the majority adopts a strained reading” of prior precedent).
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1321. Yet, the majority still cites Holman for the proposition that: “[o]ur supreme court has read
the eighth amendment protections afforded to juvenile sentencing as extending to discretionary
life sentences.” Supra ¶ 18. The majority cites this pre-Jones finding in Holman about
discretionary sentences without pausing to consider whether it is still good law after Jones. The
majority writes “whether defendant’s sentence violated the eighth amendment is dependent upon
the length of sentence he received.” (Emphasis added.) Supra ¶ 21. The majority makes this
assertion despite the fact that the outcome of the Jones case was dependent, not on length, but on
whether the sentence before it was discretionary. The majority repeatedly and mechanically cites
and applies both Buffer and Holman without considering Jones’ impact on them.
¶ 59 As I noted above, since Jones casts doubt on the continued vitality of Buffer and Holman
under the federal constitution’s eighth amendment, the sentencing claims by a juvenile or a
young adult in an Illinois court are better evaluated under our own, broader, proportionate
penalties clause.
¶ 60 Applying a proportionate penalties analysis to the facts of this case, I find, first, that
defendant’s 40-year sentence is not a de facto life sentence. People v. Gunn, 2020 IL App (1st)
170542, ¶ 127. Our supreme court found that “a prison sentence of 40 years or less imposed on a
juvenile offender does not constitute a de facto life sentence.” (Emphasis in original.) Buffer,
2019 IL 122327, ¶ 41. Pursuant to this finding, a sentence that is exactly 40 years is not a de
facto life sentence and, thus, the safeguards that apply specifically to de facto life juvenile
sentences do not apply here.
¶ 61 Defendant’s 40-year sentence is only one day short of a sentence that would qualify him
for the safeguards noted in Buffer. Buffer, 2019 IL 122327, ¶¶ 44-47. Our supreme court was
very aware of the fact that some juveniles would fall close to the line, but it nonetheless found
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that “ ‘a line must be drawn.’ ” Buffer, 2019 IL 122327, ¶ 29 (quoting Roper v. Simmons, 543
U.S. 551, 574 (2005)); Gunn, 2020 IL App (1st) 170542, ¶ 133. While I acknowledge the
heartache of being one day short, there will always be close cases when lines are drawn and rules
are made. Gunn, 2020 IL App (1st) 170542, ¶ 133 (“some defendants” will always “fall close to
the line”).
¶ 62 However, finding that a defendant’s sentence is not a de facto life sentence does not end
our analysis, because defendant has raised an as-applied, as well as a facial, constitutional
challenge. At oral argument, for the purposes of clarifying the issues, this author specifically
asked defendant’s appellate counsel whether defendant was also raising an as-applied challenge
and he confirmed that he was.
¶ 63 Although both facial and as-applied challenges allege a constitutional violation, the two
types of challenges are not “ ‘interchangeable.’ ” Holman, 2017 IL 120655, ¶ 29 (quoting People
v. Thompson, 2015 IL 118151, ¶ 36). A facial challenge asserts a violation that is clear on its
face, whereas an as-applied challenge is “ ‘dependent on the particular circumstances and facts
of the individual defendant.’ ” Holman, 2017 IL 120655, ¶ 29 (quoting People v. Thompson,
2015 IL 118151, ¶ 37).
¶ 64 Even though we reject defendant’s facial challenge because his sentence was not de facto
life, there remains the question of whether his 40-year sentence, as applied to him and the unique
facts of his case, shocks the moral sense of the community.
¶ 65 In Buffer, our supreme court discussed the type of crimes that would warrant a 40-year
sentence for a juvenile offender. Buffer, 2019 IL 122327, ¶¶ 37-39. The court observed that our
General Assembly had recently decided that a sentence of 40 years was mandatory for juveniles
who committed first-degree murder of certain specified persons, such as police officers and
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firefighters engaged in their duties. Buffer, 2019 IL 122327, ¶ 39 (discussing 730 ILCS 5/5-4.5-
105(c) (West 2018) (setting a 40-year mandatory minimum for these crimes for juveniles), and
730 ILCS 5/5-8-1(a)(1)(c)(iii-vii) (West 2018)) . Thus, the court found that a 40-year sentence
“for juvenile offenders who commit egregious crimes” did not run afoul of the constitution.
Buffer, 2019 IL 122327, ¶ 39.
¶ 66 The facts of Gunn presented such an egregious crime. In that case, we found “that a 40-
year sentence for a 17-year old who committed a premeditated, gangland-style execution” did
not “shock[ ] the moral sense of the community.” Gunn, 2020 IL App (1st) 170542, ¶ 148.
¶ 67 In Gunn, the defendant was the actual shooter. Gunn, 2020 IL App (1st) 170542, ¶ 148.
The defendant and codefendant both wore dark hoodies on a warm day—a uniform that a
bystander “instantly” recognized as meaning that “there was going to be a shooting” and which
caused the bystander himself to start running. Gunn, 2020 IL App (1st) 170542, ¶¶ 35, 38, 148.
The defendant and codefendant strolled down the street, as they approached the victim. Gunn,
2020 IL App (1st) 170542, ¶ 34. The minute the victim observed them, he ran, but it was too
late. Gunn, 2020 IL App (1st) 170542, ¶ 34. The two men chased the victim into a store, where
the victim still tried to evade them, without success. Gunn, 2020 IL App (1st) 170542, ¶¶ 34,
148. Inside the store, the defendant gunned the victim down and then returned to “calm[ly] and
nonchalant[ly]” strolling down the street with the codefendant. Gunn, 2020 IL App (1st)
170542, ¶ 148. This court found that the defendant did not exhibit “the appearance of a nervous,
jumpy juvenile but rather the calm of a cold-blooded killer.” Gunn, 2020 IL App (1st) 170542, ¶
148. For all these reasons, we found that a 40-year sentence for a “gangland-style execution” by
the actual executioner did not shock the moral sense of the community, despite the defendant’s
17-year-old age. Gunn, 2020 IL App (1st) 170542, ¶ 148.
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¶ 68 Applying the factors considered in Gunn to this case does not yield the same finding. In
the case at bar, defendant was not the actual shooter as was the defendant in Gunn. The majority
compares the facts of Gunn to the facts of this case but, in doing so, omits that key fact that
defendant in the instant case was not the shooter. Supra ¶ 33. In addition, defendant did not
commit one of the egregious crimes that the Buffer court observed were listed in our state
statutes.
¶ 69 In the case at bar, defendant was not armed with a firearm, did not physically harm
anyone, had no prior criminal history, and was convicted solely under an accountability theory.
The shooter and the other codefendant were both older than defendant, who had completed only
his sophomore year of high school. See also People v. Nooner, 2021 IL App (1st) 190334-U, ¶¶
34-45 (Gordon, P.J., specially concurring).
¶ 70 Although this case does not involve a de facto life sentence, both the factors considered
in Gunn and the statements by our supreme court in Buffer demonstrate the type of actions by an
offender that are needed to justify a 40-year sentence—such as killing a police officer or
personally conducting a gangland-style execution. This is simply not it. Although this shooting
was terrible, a 40-year sentence for the youngest defendant, who was found guilty on an
accountability theory, shocks the moral sense of the community. Gunn was never meant to be the
start of a slippery slope, but the end of it. The majority’s opinion moves the needle a step beyond
Gunn. Thus, I would reverse defendant’s sentence and remand for resentencing in the case at bar.
¶ 71 In the related case of codefendant Essie Nooner, the majority reverses Nooner’s sentence
and remands for resentencing, citing factors that I discuss above—convicted under an
accountability theory, no prior criminal history, etc. Nooner, 2021 IL App (1st) 190334-U, ¶¶
25-26. While the trial court misremembered a fact in codefendant Nooner’s case, Nooner was
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also a year older than defendant here–and the majority found the facts at sentencing closely
balanced. Nooner, 2021 IL App (1st) 190334-U, ¶ 26. The remand for resentencing in the
Nooner case is an additional reason to remand for resentencing in the case at bar. Nooner, 2021
IL App (1st) 190334-U, ¶ 29.
¶ 72 For the foregoing reasons, I must respectfully dissent.
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