People v. Aikens ( 2016 )

Illinois Official Reports Digitally signed by Reporter of
Decisions
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and integrity of this document
Appellate Court Date: 2016.11.21 09:57:06 -06'00'
People v. Aikens, 2016 IL App (1st) 133578Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JANSEN AIKENS, Defendant-Appellant.
District & No. First District, First Division
Docket Nos. 1-13-3578, 1-15-1522 cons.
Filed September 12, 2016
Rehearing denied October 17, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-20502; the
Review Hon. James B. Linn, Judge, presiding.
Judgment Judgment affirmed in part; sentence reversed and remanded with
directions; mittimus corrected.
Counsel on Michael J. Pelletier, Patricia Mysza, and Caroline E. Bourland, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Matthew Connors, and John Cooper, Assistant State’s Attorneys, of
counsel), for the People.
Panel PRESIDING JUSTICE CONNORS delivered the judgment of the
court, with opinion.
Justices Cunningham and Harris concurred in the judgment and
opinion.
OPINION
¶1 Following a bench trial, defendant Jansen Aikens was found guilty of several counts of
attempted first degree murder of a peace officer, attempted first degree murder, aggravated
discharge of a firearm, and aggravated unlawful use of a weapon (AUUW). The trial court
sentenced defendant to 20 years’ imprisonment for the attempted murder convictions, with an
additional mandatory 20-year enhancement for personally discharging a firearm, for a total of
40 years’ imprisonment. On appeal, defendant contends that the former exclusive jurisdiction
provision of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-120 (West 2012)) violates
the eighth amendment of the United States Constitution, the proportionate penalties clause of
the Illinois Constitution, as well as federal and state due process rights. Defendant also
contends that Illinois’s sentencing scheme violates the requirement that a juvenile’s youth
must be considered before imposing mandatory adult minimum penalties. Defendant
additionally alleges that his convictions violate the one-act, one-crime doctrine. For the
following reasons, we affirm the judgment of the trial court in part, reverse the sentence,
remand for resentencing, and correct the mittimus.
¶2 BACKGROUND
¶3 At trial, the State presented evidence that on October 13, 2012, Chicago police officers
George Georgopoulos, Adamiak, and Stevens were patrolling the area of Sunnyside Avenue
and Sheridan Road in plain clothes and in an unmarked car. Shortly after midnight, the officers
observed Paris McKinley, a known “Black P-Stone,” standing at the northwest corner of
Sunnyside Avenue and Sheridan Road with two other young men, including defendant. The
officers testified that the corner was known territory of a rival gang. The officers decided to
stop McKinley and question him. Officer Georgopoulos approached McKinley while the other
two officers remained in the car. The officers in the car saw the other two men quickly walk
away, so they followed them in the unmarked police car. Defendant held his waistband and
began running.
¶4 All three officers testified that defendant then stopped walking, retrieved an item from the
right side of his waistband, turned, and stood with both hands on a handgun and fired multiple
shots at the unmarked police car. Defendant then continued walking away. Defendant was
stopped near 4530 North Broadway Street, and a Smith and Wesson model 36 five-shot
.38-caliber revolver was recovered a few feet away from where defendant was detained. The
cylinder contained five spent cartridge cases.
¶5 Following defendant’s arrest, he signed a statement that indicated on the night in question
he was on the corner of Sunnyside Avenue and Sheridan Road with McKinley and another man
he did not know, watching for rival gang members. Defendant stated that an unmarked police
car pulled up and an officer asked to talk to McKinley. Defendant stated that he began to walk
away but then started running when he saw the police car following him. Defendant stated that
he then stopped running, pulled out a gun, took a position by a parked car, and shot at the police
car four to five times. Defendant stated that he tried to hit the police because he wanted them to
stop chasing him. He then ran toward Broadway Street, but the police kept chasing him. He
dropped the gun and got on the ground, at which time he was arrested.
¶6 The State put into evidence a certification from the Illinois State Police that indicated that
defendant did not possess a Firearm Owners Identification (FOID) card on October 13, 2012.
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¶7 At the close of evidence, defendant was found guilty of all charges. At sentencing,
Christina Cariglio, a mitigation specialist, submitted a mitigation report and testified. Cariglio
testified that defendant’s mother abused drugs and alcohol when she was pregnant and that,
when she had another son, defendant became that boy’s parent and protector because their
mother was not there for him. They were eventually placed in foster care and later adopted by
Deidre Aikens. Cariglio averred that as a teenager defendant lived on the street with his
girlfriend for some time, as well as an apartment she shared with gang members, during which
time he joined a gang for protection. When defendant was a junior in high school, he received
an early acceptance letter from the Illinois Institute of Technology due to his academic
excellence.
¶8 Cariglio stated that, since the time of defendant’s arrest, he cut off all ties with his gang and
that a jail guard had informed her that defendant was “the most well mannered boy [he] ha[d]
ever come across while working in Division 9.” Cariglio concluded her mitigation report by
stating:
“I have not yet come across a client so full of potential as [defendant]. Nor have I met a
more supportive family than the Aikens family. I have complete faith that [defendant]
will rehabilitate and go on to become a successful contributing member of our society.
[Defendant] is blessed with intelligence, creativity, a kind heart, an appreciation for
those less fortunate, a terrific support system in his family, and a selflessness that puts
most adults to shame. I hope that you will consider all of the information I have
provided when deciding [defendant’s] fate.”
¶9 Deidre Aikens testified that she legally adopted defendant in 2005 and that he had
previously suffered from both physical and sexual abuse. She testified that while he improved
in her home, he still exhibited symptoms resulting from his upbringing.
¶ 10 Jeffrey Tabares, a lawyer, testified that he coached defendant in Little League and
mentored him after that. Tabares testified that defendant was captain of the Little League team
because he was understanding toward the younger players and those not as skilled.
¶ 11 In allocution, defendant apologized for his actions to the court and to his family and to the
“Chicago Police Department for making their officers feel as if their lives were in danger.”
Defendant stated that he could “see the impact it has on the people who love [him] and the
position that [he] put the officers in that night.” Defendant stated that he was now able to
appreciate the privileges he previously took for granted and planned to be a role model to other
kids headed down the wrong path once he served his time.
¶ 12 After hearing the evidence during the sentencing hearing, the trial court noted that the
evidence against defendant was substantial in that he was identified, the gun was recovered,
and that there was a written confession. The trial court stated that the “crime itself was horrific,
extremely violent, [and] extremely dangerous.” However, the trial court noted that defendant
was young, had no criminal history, and that his social history was “quite troubling.” The trial
court stated, “[t]he conversation about how much discretion judges should have in sentencing
in criminal cases is active conversation. And that’s a conversation perhaps for another day. I
will sentence [defendant] with what the legislature says I have to work with in this case.” The
trial court further noted, “I am mindful that I am going to be sentencing him to more years than
his life is now. And it seems to be an unimaginable amount of time especially for a teenage
child.” The trial court then sentenced defendant for 20 years in prison for the attempted murder
convictions, plus another 20 years for personally discharging a firearm. The trial court further
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found that the aggravated discharge of a firearm toward a peace officer would merge into the
attempted murder of a peace officer counts, and that defendant would serve three years, to run
concurrently, for the aggravated unlawful use of a weapon conviction. Defendant now appeals.
¶ 13 ANALYSIS
¶ 14 On appeal, defendant first contends that Illinois’s former exclusive jurisdiction statute
violates the eighth amendment of the United States Constitution, the proportionate penalties
clause of the Illinois Constitution, as well as federal and state due process rights, because the
former exclusive jurisdiction provision does not take into account the inherent differences
between juveniles and adults. The State responds that because Illinois’s “legally
indistinguishable” automatic transfer statute was recently held to be constitutional by the
Illinois Supreme Court, defendant’s argument must fail. We agree with the State.
¶ 15 “Constitutional challenges carry the heavy burden of successfully rebutting the strong
presumption that statutes are constitutional.” People v. Patterson, 2014 IL 115102, ¶ 90. We
have a duty to uphold the constitutionality of a statute whenever reasonably possible, resolving
any doubts in favor of the statute’s validity. Id. We review the constitutionality of a statute
de novo. Id. (citing People v. Dabbs, 239 Ill. 2d 277, 291 (2010)).
¶ 16 At the time of defendant’s arrest, the former exclusive jurisdiction statute of the Act stated
as follows:
“Proceedings may be instituted under the provisions of this Article concerning any
minor who prior to the minor’s 17th birthday has violated or attempted to violate,
regardless of where the act occurred, any federal or State law or municipal or county
ordinance ***. *** Except as provided in Sections 5-125, 5-130, 5-805, and 5-810 of
this Article, no minor who was under 17 years of age at the time of the alleged offense
may be prosecuted under the criminal laws of this State.” 705 ILCS 405/5-120 (West
2012).
¶ 17 This “exclusive jurisdiction” provision meant that defendant, who was 17 years old at the
time of the felony offense, was automatically excluded from juvenile court and faced the same
procedures and sentencing provisions as adults. Id. However, Illinois no longer excludes
17-year-olds from juvenile court. See Pub. Act 98-0061 (eff. Jan. 1, 2014) (amending 705
ILCS 405/5-120 (West 2012)) (“no minor who was under 18 years of age at the time of the
alleged offense may be prosecuted under the criminal laws of this State”). The amendment
applies only to offenses committed after the effective date of the amendment (January 1, 2014)
and thus does not apply to defendant. See People v. Richardson, 2015 IL 118255.
¶ 18 Defendant contends that the former provision violates the eighth amendment of the United
States Constitution, as well as the proportionate penalties clause of the Illinois Constitution.
The eighth amendment prohibits “cruel and unusual punishments” for criminal offenses. U.S.
Const., amend. VIII. The Illinois Constitution, which extends beyond the eighth amendment,
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; People v. Clemons, 2012 IL 107821, ¶ 29.
¶ 19 Defendant argues, citing Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), Graham
v. Florida, 560 U.S. 48 (2010), and Roper v. Simmons, 543 U.S. 551 (2005), that because
“juveniles like [defendant] are categorically less culpable than adults, *** they should not be
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automatically subjected to the same treatment and punishment as adults, without any
antecedent findings that it would be inappropriate to prosecute them as juveniles.” However, as
defendant notes, this argument was recently rejected in Patterson, 2014 IL 115102.
¶ 20 The defendant in Patterson argued that the mandatory transfer provision of the Act (705
ILCS 405/5-130 (West 2008)), automatically transferring certain minors from the jurisdiction
of juvenile court to the adult criminal court, was unconstitutional. The automatic transfer
statute, at the time of the defendant’s arrest, required juveniles who were at least 15 years old
and charged with one of the enumerated crimes to be prosecuted in adult criminal court rather
than in juvenile court. One of the specified crimes was aggravated criminal sexual assault.
Because the defendant was 15 years old when he was convicted of aggravated criminal sexual
assault, the provision required him to be automatically transferred to criminal court for trial
and, if convicted, sentenced as an adult. Patterson, 2014 IL 115102, ¶ 91.
¶ 21 The defendant in Patterson argued that the automatic transfer statute did not take into
account the inherent differences between juveniles and adults, including juveniles’ reduced
culpability and greater ability to change. The defendant argued that the provision was fatally
flawed and violated the eighth amendment of the federal constitution and the proportionate
penalties clause of the Illinois Constitution. Id. ¶ 89. The defendant contended that Miller,
Graham, and Roper required a finding that the transfer statute was fatally flawed because it did
not take juveniles’ distinctive characteristics into account and that the Supreme Court had
concluded that juveniles “are constitutionally different from adults for purposes of
sentencing.” Miller, 567 U.S. at ___, 132 S. Ct. at 2464.
¶ 22 Our supreme court stated that “[a]s this court has repeatedly explained, access to juvenile
courts is not a constitutional right because the Illinois juvenile justice system is a creature of
legislation” (Patterson, 2014 IL 115102, ¶ 104 (citing People v. M.A., 124 Ill. 2d 135, 141
(1988)) and “[w]hether a defendant is tried in juvenile or criminal court is purely a matter of
procedure.” Id. (citing City of Urbana v. Andrew N.B., 211 Ill. 2d 456, 486 (2004) (Freeman,
J., dissenting)). Moreover, our supreme court noted that “[e]ven if we accept the assertion that
a juvenile who is convicted in criminal court is always subject to a lengthier sentencing range
and harsher prison conditions than if he had been adjudicated in juvenile court, defendant cites
to nothing that can convert a purely procedural statute into a punitive one.” Patterson, 2014 IL
115102, ¶ 104. It went on to state that “[t]he mere possibility that a defendant may receive a
potentially harsher sentence if he is convicted in criminal court logically cannot change the
underlying nature of a statute delineating the legislature’s determination that criminal court is
the most appropriate trial setting in his case.” Id. ¶ 105.
¶ 23 Accordingly, we find that in the absence of actual punishment imposed by the exclusive
jurisdiction statute, defendant’s eighth amendment challenge cannot stand for the reasons
stated above in Patterson. Id. ¶ 108. And because the Illinois proportionate penalties clause is
coextensive with the eighth amendment’s cruel and unusual punishment clause, we also reject
defendant’s challenge under the Illinois Constitution. Id.
¶ 24 Defendant nevertheless relies on Miller, Graham, and Roper, to support his constitutional
challenge under the eighth amendment and our state’s proportionate penalties clause. In Roper,
the Supreme Court found that the death penalty was unconstitutional as applied to minors.
Roper, 542 U.S. at 574-75. In Graham, the Supreme Court held that “[t]he Constitution
prohibits the imposition of a life without parole sentence on a juvenile offender who did not
commit homicide.” Graham, 560 U.S. at 82. And in Miller, the Supreme Court concluded that
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“the Eighth Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders” convicted of homicide. Miller, 567 U.S. at ___,
132 S. Ct. at 2469. In each of these cases, the Supreme Court relied in part on the lesser moral
culpability and greater rehabilitative potential of minors in support of its decisions.
¶ 25 The Patterson court found that although lengthy, that defendant’s 36-year term was not
comparable to either the death penalty or life in prison without parole. Patterson, 2014 IL
115102, ¶ 108. Our supreme court noted that the United States Supreme Court “has clearly
distinguished the latter sentences from any others,” noting that severity and irrevocability of
the death penalty and life without parole. Id. Accordingly, because our supreme court and the
United States Supreme Court have closely limited the application of the rationale in Miller,
Graham, and Roper, invoking it only in the context of the most severe of all criminal penalties,
we find that a term totaling 40 years for a juvenile who personally committed attempted
murder does not fall into that category. As the court stated in Patterson, “[w]e decline
defendant’s invitation to extend the Supreme Court’s eighth amendment rationale to the facts
of this case.” Id. ¶ 110.
¶ 26 We further note that our supreme court in Patterson “strongly urged” the General
Assembly to review the automatic transfer provision based on the current scientific and
sociological evidence indicating a need for the exercise of judicial discretion in determining
the appropriate setting for the proceedings in juvenile cases. Id. ¶ 111. As we stated earlier, the
exclusive jurisdiction provision at issue in this case was amended pursuant to Pub. Act 98-61
(eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120 (West 2012)), but the amendment applies
only to offenses committed after the effective date of the amendment (January 1, 2014) and
thus does not apply to defendant. This amendment, however, does not give us the authority to
find the prior exclusive jurisdiction provision unconstitutional. Rather, we are bound by our
supreme court’s decisions and accompanying rationale, and until the Illinois or United States
Supreme Court rules otherwise, we are compelled to follow the line of cases outlined above
and conclude that the former exclusive jurisdiction provision was constitutional.
¶ 27 Defendant’s next argument regarding the exclusive jurisdiction statute is that it violates
both procedural and substantive due process. Defendant claims that “[p]ursuant to Roper,
Graham, and Miller, 17-year-olds as a class are less culpable than adults because of their youth
and its attendant characteristics, and courts may not automatically treat them as adults without
first allowing them to show that such treatment would be inappropriate due to their youth.” Our
supreme court in Patterson also rejected a similar argument in the context of the automatic
transfer statute. See Patterson, 2014 IL 115102, ¶¶ 93-95. In Patterson, the defendant
attempted to support his due process claim “by relying on the Supreme Court’s eighth
amendment analysis in Roper, Graham, and Miller.” Id. ¶ 97. Our supreme court found that
“[a]lthough both the Supreme Court and defendant have emphasized the distinctive nature of
juveniles, the applicable constitutional standards differ considerably between due process and
eighth amendment analyses.” Id. Accordingly, our supreme court rejected defendant’s reliance
on the Supreme Court’s eighth amendment case law to support his procedural and substantive
due process claims, and thus we are compelled to do the same here. Id.
¶ 28 Defendant’s next argument deals with the application of the adult minimum sentences
required for attempted murder of a peace officer with a firearm. Defendant states that because
his sentence consisted of a 20-year minimum sentence for the underlying offense of attempted
murder of a peace officer (720 ILCS 5/8-4(c)(1)(A), 9-1(b)(1) (West 2012)), and a mandatory
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20-year enhancement for personally discharging a firearm during that offense (720 ILCS
5/8-4(c)(1)(C) (West 2012)), and because he must serve at least 85% of his sentence, he will
not be eligible for release until October 7, 2046, when he will be 51 years old. Defendant
argues that the “average age for any black man in the United States born in 1995 is only 65.2
years old” and thus his sentence “will certainly at least keep him imprisoned for almost all of
his life.” (Emphases in original.) Defendant argues that we should find his sentence
unconstitutional either because (1) subjecting children to the same mandatory minimum
penalties as adults violates the eighth amendment and the Illinois Constitution, (2) the specific
automatic application of the adult firearm enhancement and the adult truth-in-sentencing
statute is unconstitutional, or (3) the application of these adult sentencing statutes is
unconstitutional as applied to defendant.
¶ 29 As stated above, a strong presumption exists that statutes are constitutional and courts will
uphold a statute whenever reasonably possible. Patterson, 2014 IL 115102, ¶ 90. In addition,
the challenging party has the burden of rebutting this presumption. People v. Willis, 2013 IL
App (1st) 110233, ¶ 43. We review a statute’s constitutionality de novo. Patterson, 2014 IL
115102, ¶ 90.
¶ 30 Defendant first contends, based on Roper, Graham, and Miller, that the imposition of the
mandatory minimum sentence of 40 years, on defendant as a juvenile offender, fails to allow
the trial court to have an opportunity to make an individualized determination and thus violates
the eighth amendment as well as the proportionate penalties clause of the Illinois Constitution.
We disagree. Unlike those cases, which involved the imposition of the death penalty (Roper)
and a mandatory life sentence without the possibility of parole (Graham and Miller), without
allowing the trial court any discretion in sentencing, in this case the trial court was able to
consider defendant’s age and culpability in sentencing defendant. It had the discretion to
impose a sentence well over 40 years in prison. See 720 ILCS 5/8-4(c)(1)(A), 9-1(b)(1) (West
2012) (sentence for attempted murder of a peace officer performing his official duties carries a
sentencing range of 20 to 80 years); 720 ILCS 5/8-4(c)(1)(C) (West 2012) (personal discharge
of firearm during an attempted murder requires a 20-year sentencing enhancement). At
sentencing, the trial court took into account defendant’s age and other mitigating
circumstances, such as defendant’s lack of a criminal background and his tough upbringing,
when it imposed the minimum sentence.
¶ 31 In Miller, the Supreme Court concluded that a mandatory life sentence without parole
precluded consideration of the offender’s age, background, and relative culpability and would
likely result in a greater sentence than adults would serve. Miller, 567 U.S. at ___, 132 S. Ct. at
2475. The Court stated that a judge or jury must have the opportunity to consider mitigating
circumstances before imposing the harshest possible penalty for a juvenile. Id. at ___, 132 S.
Ct. at 2475. The Supreme Court has not held that a mandatory minimum sentence of 40 years
violates the eighth amendment, and we decline to extend their holding in Miller to the
circumstances of this case. See People v. Banks, 2015 IL App (1st) 130985, ¶ 20 (declining to
extend holding in Miller to find that a mandatory minimum sentence of 45 years violates the
eighth amendment in juvenile case). Because the proportionate penalties clause is coextensive
with the cruel and unusual punishment clause, we find that for the same reason his eighth
amendment challenge failed, defendant’s proportionate penalties argument also fails. See id.
¶ 24.
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¶ 32 Defendant’s next argument, again relying on Miller, is that the application of the 20-year
mandatory firearm enhancement and truth-in-sentencing provisions violates the eighth
amendment and the proportionate penalties clause. We reject this argument for the same
reasons stated above. See id. ¶¶ 20-24 (because the trial court had opportunity to use discretion
in sentencing defendant, we decline to extend holding from Miller to the circumstances of this
case). We note, however, that the legislature has added section 5-4.5-105 to the Unified Code
of Corrections (Code). Pub. Acts 99-69, 99-258 (eff. Jan. 1, 2016) (adding 730 ILCS
5/5-4.5-105 (West 2014)). This new statutory provision requires sentencing courts to consider
“additional factors in mitigation” when sentencing persons that were under the age of 18 at the
time they committed their offense and also permits a sentencing court to, “in its discretion,”
decline to impose otherwise mandatory firearm-related sentencing enhancements. Id.
However, this new sentencing provision is only applicable to offense committed by juveniles
after the effective date of January 1, 2016 (see below) and is therefore inapplicable here.
¶ 33 Defendant argues that even if the adult sentencing scheme for attempted murder of a peace
officer with a firearm for a minor is not facially unconstitutional, it violates the proportionate
penalties clause of the Illinois Constitution as applied to him. An “as applied” constitutional
challenge requires defendant to show that the statute at issue violates the Illinois Constitution
as applied to him. A challenge under the proportionate penalties clause “contends that the
penalty in question was not determined according to the seriousness of the offense.” People v.
Sharpe, 216 Ill. 2d 481, 487 (2005). A violation maybe be shown where the penalty imposed is
“ ‘cruel, degrading, or so wholly disproportionate to the offense committed as to shock the
moral sense of the community.’ ” Id. (quoting People v. Moss, 206 Ill. 2d 503, 522 (2003)).
Our supreme court has “never defined what kind of punishment constitutes ‘cruel, ‘degrading,’
or ‘so wholly disproportioned to the offense as to shock the moral sense of the community’ ”
because “as our society evolves, so too do our concepts of elemental decency and fairness
which shape the ‘moral sense’ of the community.” People v. Miller, 202 Ill. 2d 328, 338 (2002)
(hereinafter Leon Miller). “To determine whether a penalty shocks the moral sense of the
community, we must consider objective evidence as well as the community’s changing
standard of moral decency.” People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008).
¶ 34 In Leon Miller, the 15-year-old defendant was approached by two individuals who asked
him to serve as a lookout. Leon Miller, 202 Ill. 2d at 330-31. The defendant agreed and one
minute later, the individuals opened fire, killing two people. Id. The defendant was charged
and convicted of two counts of first degree murder on an accountability theory, despite the fact
that he never handled the guns used to commit the murders and ran away when the shots were
fired. Id. After trial, the court refused to impose a life sentence under the multiple murder
provision of the Code and instead imposed a 50-year sentence while finding the multiple
murder provision unconstitutional as applied to the defendant. Id. at 335-36.
¶ 35 The Illinois Supreme Court agreed, explaining that because the automatic transfer statute
mandated that all 15-year-olds charged with murder be tried in adult court, that the
accountability statute effectively bars courts from considering the offender’s degree of
participation in the crime and that the sentencing statute precludes courts from considering a
defendant’s age or degree of participation in the crime, “a court never considers the actual facts
of the crime, including the defendant’s age at the time of the crime or his or her individual level
of culpability.” Id. at 340. Our supreme court noted that “a mandatory sentence of natural life
in prison with no possibility of parole grossly distorts the factual realities of the case and does
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not accurately represent defendant’s personal culpability such that it shocks the moral sense of
the community.” Id. at 341.
¶ 36 In People v. Gipson, the juvenile defendant received a 52-year sentence for two counts of
attempted first degree murder, aggravated battery with a firearm, and aggravated discharge of a
firearm in connection with the shooting of two people. This court found that while it was a
serious offense, and one of the victims had been severely injured, “numerous factors diminish
the justification for a 52-year prison term.” People v. Gipson, 2015 IL App (1st) 122451, ¶ 73.
Specifically, this court found the defendant’s youth and mental health issues should have been
considered but that the sentencing scheme did not allow for it. Id. ¶ 75. This court noted that
the trial court’s “choice was to see that defendant remain in prison for life or spend only the last
few years of his life outside the prison walls, all for a crime that he committed at age 15, while
his mental health was questionable at best, when it could not be said that he was irredeemable,
and for a crime in which no one died.” Id. This court reversed and remanded to the trial court
with instructions to conduct a retroactive fitness hearing. This court found that the defendant’s
52-year sentence violated the proportionate penalties clause and therefore provided the trial
court with the additional instruction that, in the event it found that defendant was fit to stand
trial, he should be resentenced without applying the firearm enhancement. Id. ¶ 78.
¶ 37 Here, the juvenile defendant had no prior criminal history and was described by mitigation
specialist Cariglio as full of potential and able to fully rehabilitate as a contributing member of
society. The trial court noted that defendant was young, had no criminal history, and that his
social history was “quite troubling.” The trial court stated that “[t]he conversation about how
much discretion judges should have in sentencing in criminal cases is active conversation,” but
that it was a conversation for another day. The trial court stated that it would sentence
defendant with “what the legislature says I have to work with in this case” and that it was
“mindful that I am going to be sentencing him to more years than his life is now” and that “it
seems to be an unimaginable amount of time especially for a teenage child.” While the crime
was indeed serious, no one was injured in this particular instance. We find, relying on Leon
Miller and Gipson, that the sentencing scheme at issue, as applied to defendant, violates the
proportionate penalties clause of the Illinois Constitution, as it shocks our evolving standard of
moral decency.
¶ 38 We believe that this decision is consistent with the evolving standards for juvenile
offenders in this State as evidenced by recent changes that have been made in the way that
juveniles are tried and sentenced. See Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730
ILCS 5/5-4.5-105 (West 2014)); Pub. Act 99-258, § 5 (eff. Jan. 1, 2016) (amending 705 ILCS
405/5-130, 5-805 (West 2014)). Now, when a person commits an offense and is under 18 years
of age at the time of the offense, there are additional factors the trial court must consider in
sentencing that offender, including age, impetuosity, and level of maturity, and the trial court
“may, in its discretion, decline to impose any otherwise applicable sentencing enhancement
based upon firearm possession.” Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS
5/5-4.5-105(b) (West 2014)). In addition, section 5-130 of the Act now extends the jurisdiction
of the juvenile court to all minors except those charged with first degree murder, aggravated
criminal sexual assault, or aggravated battery with a firearm. See 705 ILCS 405/5-130 (West
2014). While these provisions do not apply retroactively, they are indicative of a changing
moral compass in our society when it comes to trying and sentencing juveniles as adults. See
Leon Miller, 202 Ill. 2d at 339 (“as our society evolves, so too do our concepts of elemental
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decency and fairness which shape the ‘moral sense’ of the community”); Hernandez, 382 Ill.
App. 3d at 727 (“To determine whether a penalty shocks the moral sense of the community, we
must consider objective evidence as well as the community’s changing standard of moral
decency.”). We therefore reverse defendant’s sentence and remand for resentencing in line
with the new sentencing scheme, without imposition of the mandatory enhancement. See
Gipson, 2015 IL App (1st) 122451, ¶ 78 (“we direct the trial court to impose, on both
attempted murder counts, any appropriate Class X sentence under the Unified Code, without
regard to the mandatory enhancement”).
¶ 39 Resentencing
¶ 40 After defendant filed his brief on appeal, he filed a supplemental brief arguing that certain
statutory amendments that took effect while his appeal was pending should be applied
retroactively to his case. Due to our reversal of defendant’s sentence, we need not address this
issue. However, we note that this court recently addressed this exact issue in People v. Hunter,
2016 IL App (1st) 141094, finding that the new sentencing scheme at issue for minors should
not be applied retroactively.
¶ 41 One-Act, One-Crime
¶ 42 Defendant next contends, and the State agrees, that under one-act, one-crime principles we
should vacate six of defendant’s convictions for attempted murder and five of his convictions
for aggravated unlawful use of a weapon. The one-act, one-crime doctrine provides that
multiple convictions are improper where (1) only one physical act was manifested or (2)
multiple acts were manifested but some of the convictions are of included offenses. People v.
King, 66 Ill. 2d 551, 566 (1977). “Prejudice results to the defendant only in those instances
where more than one offense is carved from the same physical act.” Id. Our supreme court has
“always held” that under the one-act, one-crime doctrine, the sentence should be imposed on
the more serious offense and the less serious offense should be vacated. People v. Lee, 213 Ill.
2d 218, 226-27 (2004).
¶ 43 In the case at bar, defendant’s most serious convictions for attempted murder were
contained in counts VII and VIII of the indictment, which indicated that defendant had
committed the attempted murders while personally discharging a firearm. 720 ILCS
5/8-4(c)(1)(C) (West 2012). Accordingly, we agree that defendant’s convictions for attempted
murder under counts I to VI should have been merged into counts VII and VIII and that counts
I to VI should now be vacated. Additionally, defendant was convicted of six counts of AUUW.
Defendant argues, and the State does not protest, that only one count of AUUW should
remain—count XVIII, which alleged defendant possessed a firearm when he was not on his
own land, abode, or fixed place of business, and had not been issued a valid FOID card.
¶ 44 Because we have the authority to directly order the circuit court to make the necessary
corrections on a defendant’s sentencing order, we order the mittimus to be modified in
accordance with the above findings.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, we affirm the judgment in part, reverse the sentence of the
circuit court of Cook County, remand for resentencing in accordance with this opinion, and
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order the mittimus corrected.
¶ 47 Judgment affirmed in part; sentence reversed and remanded with directions; mittimus
corrected.
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