People v. Garza , 2021 IL App (1st) 192573-U ( 2021 )

2021 IL App (1st) 192573-UNo. 1-19-2573
Second Division
June 29, 2021
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 DISTRICT
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 13 CR 9116
v. )
)
DAMIEN GARZA, ) Honorable
) James B. Linn
Defendant-Appellant. ) Judge, presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the
judgment.
ORDER
¶1 Held: The trial court’s summary dismissal of defendant’s pro se postconviction petition
is reversed, and the cause is remanded for second stage proceedings where
defendant’s claim that his aggregate sentence of 50 years’ imprisonment violates
the proportionate penalties clause of the Illinois Constitution was not frivolous or
patently without merit.
¶2 Following a jury trial, defendant-appellant, Damien Garza, was found guilty of first degree
murder (720 ILCS 5/9-1(a)(1) (West 2012)), aggravated battery (720 ILCS 5/12-3.05(e)(1) (West
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2012)), and three counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West
2012)), and sentenced to an aggregate sentence of 50 years’ imprisonment. He now appeals from
the judgment of the trial court summarily dismissing his pro se petition pursuant to the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, defendant, who
was 19 years of age at the time of the offense and convicted on a theory of accountability, argues
that the trial court erred because his petition set forth the gist of an arguable constitutional claim
that his 50-year sentence violated the proportionate penalties clause of the Illinois Constitution.
For the following reasons, we reverse and remand for second stage proceedings under the Act.
¶3 I. BACKGROUND
¶4 Defendant was arrested and charged, along with his codefendant Javier Garza (no relation),
with multiple counts of first degree murder, attempt first degree murder, aggravated battery, and
aggravated discharge of a firearm, in relation to a shooting that occurred on April 7, 2013. As
relevant to this appeal, the facts adduced at trial are as follows.
¶5 On April 7, 2013, around 3:30 p.m., Emily Guerrero, Alyna Esparza Alec Esparza, Pablo
Juarez, and Michael Orozco were walking to an ice cream shop located on Cermak Road and
Leavitt Street in Chicago, Illinois. As they were heading north on Leavitt Street, a green minivan
stopped across the street from them. Inside the minivan was Jamie Almarez, Javier who was 17
years old at the time, and defendant, the driver of the minivan, who was 19 years old at the time.
Javier and defendant, both members of the Latin Saints, displayed gang signs towards the group
as a form of disrespect towards a rival gang, the Satan Disciples. In response, Michael, who had
been spending time with the Satan Disciples, presented gang signs towards the minivan.
¶6 Javier stepped out of the minivan from the sliding back door and shouted “D.K.” (which
was explained at trial to mean “Disciple Killer”). He then pulled out a black handgun and fired
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three to four shots at the group, who all ran away from the gunfire. Javier stopped shooting and
stepped back into the minivan. Defendant then drove north.
¶7 Three bullets struck Michael in the back. The rest of the group looked back and noticed
Michael laying on the ground. Emily and Alyna called 911 and stayed with Michael while the
others ran to Michael’s house to tell his family about the shooting. Michael’s father and brother
arrived at the scene, and shortly thereafter, paramedics arrived and transported Michael to the
hospital. At the scene, Emily noticed a piece of metal in her leg, which she pulled out and dropped
on the street. When Michael’s father arrived at the hospital, he was informed that Michael had died
from his wounds.
¶8 Chicago police officers Manuel Hernandez and Waqar Mian were driving south on Loomis
Street, approaching Cermak, in an unmarked squad car when they received a dispatch of shots
fired near Cermak and Leavitt. Officer Hernandez activated the emergency lights and siren and
drove towards the scene. The officers then received information that a green minivan driving east
on Cermak was involved in the shooting, which was confirmed as bona fide. At this point, Officer
Hernandez deactivated the sirens and lights so as not to alert the suspects of the police presence as
they searched for the minivan. The officers came across a green minivan at the intersection of
Cermak and Wood. They passed each other, and Officer Hernandez activated his lights and sirens,
made a U-turn, and pursued the minivan as it accelerated at a high rate of speed. Subsequently, the
minivan crashed into a group of parked cars and the unmarked squad car was positioned alongside
the minivan to prevent escape.
¶9 Both officers exited the squad car with their weapons drawn. Officer Hernandez ordered
defendant to put his hands up and placed him in handcuffs. Officer Mian observed Javier in the
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backseat and Jamie in the front passenger seat. Officer Mian removed Javier and Jamie from the
minivan and recovered a “semiautomatic blue steel weapon” underneath the driver’s seat.
¶ 10 Not long after the shooting took place, other police officers drove Emily and Alyna to the
location where the minivan had crashed. The officers brought two men out, and both Emily and
Alyna identified them as the shooter and the driver of the minivan. Later at the police station, they
informed detectives of what had transpired. Emily’s parents then took her to the hospital to have
her leg checked out.
¶ 11 Pablo went to the police station that day where he viewed a physical lineup and identified
Javier as the shooter. Alec also spoke to the police but he was unable to identify any of the
offenders from a physical lineup. Two other eyewitnesses, Eduardo Dominguez and Jessica
Contreras, also viewed a lineup at the police station on the day of the shooting. Dominguez
identified Javier based on his clothing but did not see his face at the time of the shooting. Contreras
identified defendant as the driver of the minivan. Contreras also spoke with an assistant state’s
attorney about what she had observed that day. The following day, Emily went back to the police
station and spoke with an assistant’s state’s attorney about the shooting. From photographs, Emily
identified Javier as the shooter and defendant as the driver.
¶ 12 Four discharged cartridges, two fired bullets, and several metal bullet fragments were
recovered from the scene of the shooting. As stated, the gun, which was a Taurus .45 caliber
semiautomatic pistol, was recovered from the minivan. A fired bullet was recovered during
Michael’s autopsy. A firearms examiner concluded that the discharged cartridges and the bullet
were fired from the recovered gun. A gunshot residue test performed on Javier’s right hand on the
day of the shooting tested positive for gunshot residue.
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¶ 13 The jury found defendant guilty of first degree murder, aggravated battery, and three counts
of aggravated discharge of a firearm. Defendant’s motion for a new trial was denied.
¶ 14 At sentencing, Assistant State’s Attorney Jennifer Hanus testified that on October 16, 2012,
she was one of the prosecutors involved in the jury trial of Daniel Ramirez, during which defendant
was called as a witness for the State. That case involved a shooting which occurred on August 9,
2011. As a witness, defendant testified to his affiliation with the Latin Saints and stated that on
that day, he was driving a car with his girlfriend as the passenger when he observed rival gang
members and began yelling at them. Then, one of the rival gang members shot at defendant’s car,
striking defendant’s girlfriend. The State also presented victim impact statements from Alyna,
Emily, and Michael’s mother. In mitigation, defense counsel stated that defendant was supported
by his family and he had no significant criminal background. The presentence investigation report
was also submitted to the court.
¶ 15 The trial court ultimately sentenced defendant to 40 years’ imprisonment for first degree
murder, a consecutive 10 years’ imprisonment for aggravated battery, and a concurrent 6 years’
imprisonment for aggravated discharge of a firearm, for an aggregate total of 50 years’
imprisonment. In so sentencing, the court made the following relevant statements:
“The Illinois legislature, in their wisdom, has taken much discretion away from
judges in matters like this. There are mandatory minimum sentences. Sentences for first-
degree murder must be at 100 percent. It has come to the point that many, if not all of these
first-degree murder sentences, since we’ve had our truth in sentencing and gun
enhancement legislation, they’re amounting to life sentences or close to life sentences for
everybody. I am mindful of that.
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And I am mindful that the law in Illinois also indicates that for the aggravated
battery count, the shooting of Emily Guerrero, that this has to run consecutive. And I’m
mindful that [defendant] is not the shooter in this case; he was the driver.
But what has he done? He’s a very young man and he has decided to live the life
of a thug. He’s tattooed himself with gang tattoos all over the place, and he’s living the
thug life. I saw clearly on the videotapes the way he comported himself when the detectives
weren’t in the room and he was talking to other people. I am questioning whether there is
any potential to rehabilitate this young man. I think he is just one of these people that’s out
there that’s chosen to be different than everybody else. I don’t know that he can change
himself even if he could. I don’t know that he wants to.
We talk frequently about people that have to be sentenced here, that they grow up
in difficult neighborhoods that are gang infested. Frankly, [defendant] is one of the
problems. He’s one of the people that causes terror and havoc for everybody else in the
community. It’s people like him that make Chicago living as difficult as it may be from
time to time. It’s because he’s a predator.
This is just outright urban terrorism. I cannot fathom anything else but to go
purposely driving from one location into another where you know that people affiliated
with some different street gang might be there, looking for people to shoot. And what
happened in this case is just beyond words.
***
I don’t know that even with minimum sentences that people are going to survive
this sentence. If [defendant] survives this sentence. If [defendant] survives this sentence,
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I’m not sure how many people in this room will still be alive if he can live through this
sentence because we’re talking about time at 100 percent.
I’ve listened to everything in aggravation and mitigation. I will sentence him
accordingly. And I’m mindful of the fact that [his codefendant], the shooter in this case,
got a sentence that was a minimum sentence for him. [Defendant] was the driver. But I find
that [defendant] is wholly culpable, and this would not have happened but for him.”
¶ 16 Defendant filed a motion to reconsider his sentence, arguing that the sentence was
excessive in light of defendant’s participation in the offense, the court considered matters that were
implicit in the offense, the sentence was disparate as compared to his codefendant’s sentence, and
the court penalized defendant for exercising his right to trial. The trial court denied the motion.
¶ 17 A direct appeal followed, wherein defendant argued that there was insufficient evidence to
support his aggravated battery conviction, his 50-year sentence was unconstitutionally disparate
to his codefendant, and his sentence violated the eighth amendment of the United States
Constitution and the proportionate penalties clause of the Illinois Constitution.
¶ 18 On September 26, 2018, this court issued an order, affirming defendant’s convictions.
People v. Garza, 2018 IL App (1st) 115324-U, ¶ 1. Specifically, the court concluded that the State
presented sufficient evidence and the trial court did not abuse its discretion in sentencing defendant
to an aggregate sentence of 50 years. Id. We also found that defendant had forfeited his as-applied
challenge to the constitutionality of his sentence under the eighth amendment of the United States
Constitution and the proportionate penalties clause of the Illinois Constitution. Id. ¶¶ 39-41. On
February 10, 2019, the Illinois Supreme Court denied leave to appeal. See 2019 IL 124145.
¶ 19 On September 19, 2019, defendant filed his initial pro se postconviction petition that is the
subject of this appeal, arguing that his 50-year sentence was a de facto life sentence that violated
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the proportionate penalties clause of the Illinois Constitution and was unconstitutional as applied
to him. The petition included defendant’s affidavit, repeating the allegations contained in the
petition.
¶ 20 On October 15, 2019, the court summarily dismissed defendant’s petition, stating in its
order that it was “outside the parameters” of People v. Buffer, 2019 IL 122327.
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 Defendant contends that his 50-year aggregate sentence is a de facto life sentence that
violates the proportionate penalties clause of the Illinois Constitution and was unconstitutional as
applied to him. The State argues that the trial court properly dismissed the petition because it had
no arguable basis in fact or law as defendant’s sentence was not mandatory and he offered no
factual support for the claim that he is like a juvenile offender.
¶ 24 We briefly note that on direct appeal this court found that defendant’s arguments regarding
the constitutionality of his sentence, akin to those included in the instant petition, were forfeited
because they were not raised in the trial court and because the supreme court in People v.
Thompson, had determined that an as-applied constitutional challenge, such as the one raised by
defendant on direct appeal, is best suited to resolution in the trial court to permit the record to be
developed. Garza, 2018 IL App (1st) 1152324-U, ¶¶ 39-41. Defendant now raises those claims in
the instant postconviction proceeding, as is appropriate.
¶ 25 A. Standard of Review
¶ 26 The Act provides a method for a defendant to collaterally attack a conviction by asserting
that it resulted from a “substantial denial” of his constitutional rights. 725 ILCS 5/1221 (West
2018); People v. Hodges, 234 Ill. 2d 1, 9 (2009). A postconviction proceeding in a noncapital case
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has three stages. Hodges, 234 Ill. 2d at 10. At the first stage, a trial court may summarily dismiss
a postconviction petition within 90 days if it “determines the petition is frivolous or is patently
without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018).
¶ 27 In the first stage, as we have here, a petition is frivolous or patently without merit when it
“has no arguable basis in either fact or law.” Hodges, 234 Ill. 2d at 11-12. A petition has no
arguable basis in law or fact where it is “based on an indisputably meritless legal theory or a
fanciful factual allegation.” Id. at 16. Additionally, a defendant’s claim is considered frivolous or
patently without merit if it is procedurally barred under either res judicata or forfeiture. People v.
Blair, 215 Ill. 2d 427, 445 (2005). The trial court may summarily dismiss a petition if the defendant
fails to “either attach the necessary ‘affidavits, record or other evidence,’ or explain their absence”
(People v. Collins, 202 Ill. 2d 59, 66 (2002)), or if the petition simply alleges “nonfactual and
nonspecific assertions that merely amount to conclusions” (People v. Morris, 236 Ill. 2d 345, 354
(2010)). While a defendant’s petition is to be liberally construed and need only present a limited
amount of detail, that “does not mean that a pro se [defendant] is excused from providing any
factual detail at all surrounding the alleged constitutional deprivation.” People v. Delton, 227 Ill.
2d 247, 254 (2008). We review de novo the summary dismissal of a defendant’s postconviction
petition. People v. Allen, 2015 IL 113135, ¶ 19.
¶ 28 B. Proportionate Penalties Clause
¶ 29 Prior to proceeding with our analysis, we briefly discuss the context for defendant’s
proportionate penalties clause claim. Defendant’s as-applied constitutional challenge is premised
on a line of cases providing heightened protections for juvenile defendants in sentencing under the
eighth amendment of the United States Constitution, which prohibits cruel and unusual
punishment. See Roper v. Simmons, 543 U.S. 551, 574-75 (2005) (eighth amendment prohibits the
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death penalty for juveniles who commit murder); Graham v. Florida, 560 U.S. 48, 82 (2010)
(eighth amendment prohibits mandatory life without parole sentences for juveniles who commit
nonhomicide offense); Miller v. Alabama, 567 U.S. 460, 479 (2012) (eighth amendment prohibits
mandatory life without parole sentences for juvenile offenders convicted of homicide).
Specifically, the rationale for the holding in Miller, the preeminent case, was that “children are
constitutionally different from adults for purposes of sentencing,” as they are less mature,
responsible, more impulsive and more vulnerable to peer pressure than adults. 567 U.S. at 471-74.
¶ 30 The Illinois Supreme Court has seen fit to expand the Miller protections to juvenile
offenders who receive de facto life sentences (People v. Reyes, 2016 IL 119271, ¶ 9) and has
determined that a prison term of 40 years or more for a juvenile offender is a de facto life sentence
(People v. Buffer, 2019 IL 122327, ¶ 40). Protections under Miller were once again extended in
People v. Holman, 2017 IL 120655, ¶ 40, wherein the court held that “[l]ife sentences, whether
mandatory or discretionary, for juvenile defendants are disproportionate and violate the eighth
amendment, unless the trial court considers youth and its attendant characteristics.” The court
further held that a juvenile may only be sentenced to life imprisonment without parole if the trial
court first determines that the juvenile defendant’s conduct demonstrated “irretrievable depravity,
permanent incorrigibility, or irreparable corruption.” Id. ¶ 46.1 Such a determination should be
made after the trial court has considered the Miller factors, which include, but are not limited to:
1
We are aware that the United States Supreme Court has recently issued its decision in Jones v.
Mississippi, 141 S. Ct. 1307, 1318-19 (2021), in which Miller and Montgomery were once again invoked
and the Court held that sentencing courts are not constitutionally mandated under the eighth amendment
to make a finding of “permanent incorrigibility” before sentencing a juvenile defendant to life without
parole. Nonetheless, the Court also expressly stated that states are not precluded from imposing any
sentencing mechanisms they see fit in cases involving juvenile defendants convicted of murder, such as
requiring extra factual findings, prohibiting sentences of life without parole for juveniles, or permitting
appellate review based in proportionality for life-without-parole sentences. Id. at 1323. As of yet, our
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“(1) the juvenile defendant's chronological age at the time of the offense and any
evidence of his particular immaturity, impetuosity, and failure to appreciate risks and
consequences; (2) the juvenile defendant's family and home environment; (3) the juvenile
defendant's degree of participation in the homicide and any evidence of familial or peer
pressures that may have affected him; (4) the juvenile defendant's incompetence, including
his inability to deal with police officers or prosecutors and his incapacity to assist his own
attorneys; and (5) the juvenile defendant's prospects for rehabilitation.” Id. (citing Miller,
567 U.S. at 477-78).
¶ 31 In his petition, defendant does not claim that his sentence is unconstitutional under the
eighth amendment. Clearly, such a claim would be met with rejection as defendant was not a
juvenile at the time he committed the offense. See People v. Franklin, 2020 IL App (1st) 171628,
¶ 49 (“It is well established that offenders who are 18 years and older cannot raise a facial challenge
to their sentences under the eighth amendment and the Miller line of cases.”). He instead alleges
that his sentence, which he characterizes as a de facto life sentence, violates the proportionate
penalties clause of the Illinois constitution.
¶ 32 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. This clause provides greater protections against excessive
punishment than the eighth amendment. People v. Fernandez, 2014 IL App (1st) 120508, ¶ 63;
People v. Minniefield, 2020 IL App (1st) 170541, ¶ 35. A defendant’s sentence violates this clause
if “the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense
supreme court has not indicated any deviation from its position in Holman, and unless and until such
direction is given in light of Jones, we are constrained to follow it.
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as to shock the moral sense of the community.” People v. Miller, 202 Ill. 2d 328, 338 (2002). The
proportionate penalties clause requires balancing the goals of retribution and rehabilitation, which
necessitates a careful consideration of all the factors in aggravation and mitigation. People v.
Quintana, 332 Ill. App. 3d 96, 109 (2002). We may determine whether a sentence shocks the moral
sense of the community by considering both objective evidence and the community’s changing
standard of moral decency. People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008).
¶ 33 Recently, there has been a trend in the legislature to effectively treat young adults aged 18
to 21 years old as juveniles and shift the line of demarcation for adults to 21 years old in certain
situations. Section 5-4.5-115(b) of the Code provides for parole review, “after serving 20 years or
more” of a sentence, for defendants who were under the age of 21 when they committed first
degree murder. See Pub. Act 100-1182 (eff. June 1, 2019) (adding 730 ILCS 5/5-4.5-110); Pub.
Act 101-288 (eff. Jan. 1, 2020) (renumbering 730 ILCS 5/5-4.5-110 to 730 ILCS 5/5-4.5-115).
Further, “[i]n considering the factors affecting the release determination ***, the Prisoner Review
Board panel shall consider the diminished culpability of youthful offenders, the hallmark features
of youth, and any subsequent growth and maturity of the youthful offender during incarceration.”
Pub. Act 101-288 (eff. Jan. 1, 2020) (renumbering 730 ILCS 5/5-4.5-110(j) to 730 ILCS 5/5-4.5-
115(j)). Language in the public act echoes the considerations pronounced by the court in Miller
that trial courts should utilize in sentencing juvenile offenders. These recent legislative
developments evidence a shift in the treatment of youth who encounter the criminal justice system.
The emerging caselaw which now permits a youthful defendant, through an as-applied
constitutional challenge, to develop the record and to demonstrate whether he was the functional
equivalent of a juvenile at the time of the offenses, aligns with the legislative trend.
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¶ 34 In two cases on direct appeal, our supreme court has recognized that young adults (those
between 18 and 21 years old) may rely on the evolving neuroscience regarding brain development
in juveniles and its correlation to maturity underpinning the Miller decision in support of an as-
applied challenge pursuant to the proportionate penalties clause of the Illinois Constitution. See
Thompson, 2015 IL 118151, ¶¶ 43-44; Harris, 2018 IL 121932, ¶ 48. In Thompson and Harris,
the court opened the door for young defendants to demonstrate that their own specific
characteristics and circumstances were so like those of a juvenile that imposition of a life sentence,
absent the necessary considerations established in Miller, would violate the proportionate penalties
clause. The court instructed, however, that such claims would best be pursued through a
postconviction proceedings. Thompson, 2015 IL 118151, ¶¶ 43-44 (noting that a 19-year-old
defendant was “not necessarily foreclosed” from asserting such a claim in postconviction
proceedings); Harris, 2018 IL 121932, ¶ 48 (holding that the as-applied, youth-based sentencing
claim of an 18-year-old defendant was “more appropriately raised” in postconviction proceedings).
Defendant has done so here and now seeks review in a postconviction proceeding.
¶ 35 In deciding Thompson and Harris, our supreme court has forged a clear path for review of
youth based sentencing claims. Less clear is the modicum and quality of evidence necessary in a
postconviction petition to pass first stage muster for such claims. We do not read either case to
mandate summary remand by mere virtue of the fact that one may fall within the classification of
a youthful offender. If that were the case, appellate review would not only be meaningless but
wholly unnecessary. Nevertheless, we are mindful that here we are confronted with defendant’s
initial postconviction petition, which requires for its viability that petitioner state merely the gist
of a constitutional claim.
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¶ 36 It has long since been settled that, at this stage, the postconviction petitioner is not expected
and need not make legal arguments or cite to legal authority. People v. Gaultney, 174 Ill. 2d 410,
418 (1996). And, although the petition need only present a limited amount of detail, the petitioner
must set forth the specific manner in which his rights were violated. People v. Porter, 122 Ill. 2d
64, 74 (1988). Thus, at the end of the day, it remains a requirement that to survive summary
dismissal, the petition must allege something more than nonfactual and nonspecific assertions to
support its claims. See Morris, 236 Ill. 2d at 354. We believe that defendant has sufficiently met
the threshold burden at this first stage postconviction proceeding, and we recite the allegations
contained in pro se petition in detail below.
¶ 37 Defendant first sets forth in detail the testimony of Dr. Laurence Steinberg and Dr. Erin
David Bigler and the scientific studies that have been conducted regarding the psychological
immaturity of individuals in their late teens and early twenties. According to the petition, both
doctors have opined that the same arguments made for juveniles in Roper and Miller could be
applied to young adults. Defendant states that due to his incarceration and indigent status, he was
unable to obtain affidavits from Dr. Steinberg and Dr. Bigler, who he would like to call as
witnesses to testify on his behalf. He then discusses his particular circumstances, noting in
particular that at the time of the shooting he was 19 years of age and that he was convicted on a
theory of accountability. His criminal history consisted of a misdemeanor domestic violence and
escape from electronic monitoring convictions. He also set forth his personal background,
including his learning disability, his difficult upbringing, and his introduction to gangs,
specifically, the Latin Saints. He noted in particular that his father was not a part of his life and
that his mother did not have a job, which resulted in him moving from house to house throughout
his childhood. He left school during the ninth grade, fell under the influence of the Latin Saints,
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began selling drugs, and became a father at the age of 16. He concludes his petition by asserting
that his difficult childhood, the influence of gangs, and peer pressure as relevant to his age, should
be weighed in determining his sentence. Attached to his petition is also an affidavit attesting to his
upbringing and affiliation with gangs as laid out in the petition.
¶ 38 Defendant claims that at the time of the offense his circumstances and characteristics made
him more like a juvenile offender. Specifically, he refers to the influence of the gang and its
accompanying peer pressure. Defendant also suggests that his housing instability, his issues at
school, and his need to provide for his family made him more susceptible to falling under the
influence of the gang. He claims that his upbringing and the influence of the gang was not expressly
considered by the court in concert with his young age. Defendant’s petition makes specific factual
assertions in combination with the research on young adult’s brain development and goes on to
state that the trial court failed to consider his specific facts and circumstances at sentencing.
¶ 39 As a component of our review, we have carefully reviewed the substance of defendant’s
original sentencing hearing to determine whether any aspects of the proceeding can be read to
comport with the Miller requirements. In so doing, we recognize that the law on sentencing
challenges involving young adults continues to evolve, as is apparent from the supreme court’s
directive to this court to reevaluate the decision in People v. House, 2015 IL App (1st) 110580, in
light of People v. Harris, 2018 IL 121932, and now the court’s recent grant of the petition for leave
to appeal in the revisited House decision (2020 IL 125124). Further, unlike the sentencing judge
in this case, we have the benefit of hindsight. That said, after reviewing defendant’s petition, in
light of the relevant caselaw and the unique facts of this case, we believe that this is precisely the
type of case that lends itself to further proceedings under the Act.
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¶ 40 We note, as we did on direct appeal, that defendant’s sentence was within the applicable
statutory ranges for the offenses, where first degree murder has a sentencing range of 35 to 75
years (730 ILCS 5/5-4.5-20 (West 2012); 730 ILCS 5/5-8-1(a)(d)(I) (West 2012)), aggravated
battery has a sentencing range of 6 to 30 years (720 ILCS 5/12-3.05(e)(1) (West 2012); 730 ILCS
5/5-4.5-25 (West 2012)), and aggravated discharge of a firearm has a sentencing range of 4 to 15
years (720 ILCS 5/24-1.2(a)(2) (West 2012)). In pronouncing sentence, the court noted
defendant’s young age and his role in the shooting as the driver. However, the court did not
expressly address the Miller factors and made no findings either regarding permanent
incorrigibility or defendant’s rehabilitative potential. Neither did the court consider defendant’s
level of immaturity or impulsivity based on his youth and his upbringing or the effect of peer
pressure and the influence of a gang on a young person. Rather, the court largely focused on the
seriousness of the offense, referring to defendant as a “predator” carrying out “urban terrorism.
Based on our review, we conclude that the court did not give any particularized consideration to
defendant’s youth and its attendant characteristics, such that defendant’s claim that he was the
functional equivalent to a juvenile could alter the result if he is ultimately granted a new sentencing
hearing.
¶ 41 The State entreats us to follow People v. Rivera, 2020 IL App (1st) 171430. However,
Rivera is not only factually inapposite but is also at a different stage procedurally. There, this court
analyzed a claim made in a successive postconviction petition, which is treated differently than an
initial pro se postconviction petition. Id. ¶ 10. Additionally, the defendant in Rivera was 23 years
old, had two prior felony convictions, and had been involved in a carefully planned armed robbery.
Id. ¶¶ 5-6. Thus, we are unable to draw any relevant parallels between Rivera and the case at bar.
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¶ 42 Rather, the factual circumstances in this case have much in common with those in People
v. House, 2019 IL App (1st) 110580-B, which we again note is currently pending before the
supreme court (2020 IL 125124). In House, the defendant, who was 19 years old at the time of the
offenses, was convicted of two counts of first degree murder and two counts of aggravated
kidnapping and sentenced to two consecutive life sentences and two consecutive terms of 30 years.
Id. ¶ 4. He was convicted solely under an accountability theory. Id. ¶ 29. The defendant acted as
the lookout but was also armed. Id. ¶¶ 7, 15. Much of the House court’s reasoning in finding the
sentence violated the proportionate penalties clause was based on the defendant’s lesser culpability
in the crimes, along with the trial court’s inability to consider certain factors in mitigation,
specifically the defendant’s potential for rehabilitation. Id. ¶¶ 46, 63-64.
¶ 43 Similarly, here, defendant was the driver and did not actually shoot either Michael or
Emily. He was solely convicted on a theory of accountability. There was no evidence presented
that defendant knew Javier was going to shoot someone and no evidence that this shooting was
planned in any way. A chief difference, however, between House and the case before us is that the
trial court in House did not have discretion to consider factors in both aggravation and mitigation,
whereas the trial court here did. But see People v. Holman, 2017 IL 120655, ¶ 40 (holding that a
de facto life sentence, whether mandatory or discretionary, may violate the constitution if a
defendant’s youth and its attendant characteristics are not considered).
¶ 44 Nevertheless, the trial court did not explicitly address the Miller factors, and we cannot say
whether defendant might have received a lesser sentence had the court done so. Defendant’s age
at the time of the offense, the particular circumstances of the offense, and the substance of the
sentencing hearing suggest that a more developed record regarding the application of the evolving
neuroscience on brain development to defendant’s specific facts and circumstances is warranted.
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No. 1-19-2573
¶ 45 Although the State’s arguments on appeal lack merit, before concluding, we are
nonetheless compelled to note them and to also state the basis for our rejection of the same. The
State asserts that the “record shows that although not expressly articulated, the trial court
considered Petitioner’s youth and associated characteristics of youth.” It boldly asserts that
defendant’s claims are “positively rebutted by the record.” We are troubled by the State’s less than
candid representation of the record. The State’s assertions regarding the sentencing judge’s
findings are clearly and absolutely belied by the record.
¶ 46 The State additionally argues that because the trial court was “apprised” of many of the
relevant factors under Miller, there is no violation and the trial court complied with Miller. The
record before this court reveals that the trial court mentioned that defendant was a “very young
man.” That was the extent of the court’s reference to defendant’s youth and its attendant
characteristics. Further, although the court made a passing comment regarding defendant’s
rehabilitation potential, it made no finding. From our reading of the trial court’s oral ruling at
sentencing, the transcript of which appears in the record, there is absolutely no basis to conclude
that it considered whether defendant’s actions were a reflection of his youth, his upbringing, peer
pressure, or the result of an immature and undeveloped brain equivalent to that of a juvenile.
¶ 47 We additionally note the State’s overstatement of defendant’s involvement in the offense.
According to the State, defendant was “no less instrumental in the victim’s death” and his crimes
“were planned and calculated.” We again point out that defendant was convicted on a theory of
accountability. Evidence in the record is that defendant’s only involvement was that he was driving
the van, he was affiliated with the same gang as Javier, and he fled from police. We do not know
whether defendant conspired with his codefendant or whether he had knowledge of codefendant’s
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No. 1-19-2573
plans at the time of the shooting—there is simply no evidence of either. We find the State’s
characterization of the evidence to be based merely, and inappropriately, on conjecture.
¶ 48 Finally, the State urges that “[I]n order to overcome the presumption of constitutionality of
a discretionary life sentence, the adult defendant must prove that his particular circumstances and
brain development proves that, at the time of the offense, he was functionally equivalent to a
juvenile ***; and (2) application of the Miller factors to his specific circumstances establish that
his youth and attendant circumstances reflect transient immaturity and not incorrigibility.” We do
not disagree. However, we are not yet at a stage in the postconviction proceedings in which the
defendant is required to present his proofs.
¶ 49 Here, at the first stage, we are asked, only, whether, based on the allegations in the petition,
which we accept as true, and the record before us, summary dismissal of the petition was proper.
Given the particulars of the offense and defendant’s background, coupled with his youth at the
time of the offense, we believe that it was not. Accordingly, because we find, that defendant has
set forth the gist of claim that his sentence violated the proportionate penalties clause, we must
reverse the trial court’s summary dismissal of the pro se petition and we remand for second stage
proceedings under the Act.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we reverse the judgment of the circuit court and remand for further
proceedings.
¶ 52 Reversed and remanded.
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