People v. Morris , 2023 IL App (1st) 220035 ( 2023 )

2023 IL App (1st) 220035SIXTH DIVISION
June 30, 2023
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
No. 1-22-0035
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 10 CR 17983
)
PHAROAH MORRIS, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justices C.A. Walker and Tailor concurred in the judgment and opinion.
OPINION
¶1 This case is now before us for a second time on direct appeal with regard to Pharoah
Morris’s sentence. A jury found Pharoah guilty of murder and attempted murder—offenses
committed when he was just 16 years old—and he was sentenced to a total of 100 years in prison.
Pharoah’s original sentencing hearing occurred after the United States Supreme Court held in
Miller v. Alabama, 567 U.S. 460, 465 (2012), that mandatory life sentences without parole for
juvenile offenders violate the eighth amendment to the United States Constitution (U.S. Const.,
amend. VIII) but before our own supreme court extended that holding, in People v. Reyes, 2016
IL 119271, ¶ 9, to lengthy term-of-years sentences that are de facto life sentences. Although the
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trial court commented on Pharoah’s youth and upbringing at sentencing, we concluded on his first
direct appeal that those observations were not the same as a full consideration of the special
characteristics of youth identified by the Court in Miller. People v. Morris, 2017 IL App (1st)
141117, ¶¶ 26, 32. We vacated Pharoah’s sentence and remanded his case to the trial court for
resentencing. Id. ¶ 33.
¶2 A new statutory sentencing scheme applied on remand. Under section 5-4.5-105 of the
Unified Code of Corrections (Code), courts are now required to consider the youth-based
sentencing factors set out in Miller whenever an individual under the age of 18 is sentenced, and
firearm enhancements are discretionary, rather than mandatory, for such individuals. 730 ILCS
5/5-4.5-105 (West 2020). Pursuant to section 5-4.5-115(b) of the Code, individuals who were
under the age of 21 at the time of their offenses are also now eligible for parole before serving
their full sentences. Id. § 5-4.5-115(b). Following additional briefing, the filing of an updated
presentence investigation (PSI) report, and a new sentencing hearing, the trial court imposed the
same 100-year sentence that it had before. Pharoah again appealed.
¶3 The parties initially focused their briefing on whether the constitutional protections
afforded by Miller and its progeny are still implicated when, as here, a juvenile offender will have
the opportunity to petition for parole within 40 years of being incarcerated. In addition, during the
pendency of this appeal, the Illinois Supreme Court issued its opinion in People v. Wilson, 2023
IL 12766, ¶¶ 29, 41-42, overruling its holding in People v. Holman, 2017 IL 120655, ¶ 40, that
Miller applied to discretionary, as well as mandatory, life sentences. The parties filed motions,
after briefing was completed but before argument, addressing the impact of Wilson on Pharoah’s
constitutional claims.
¶4 We need not and will not reach these constitutional questions, however, where there is a
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nonconstitutional basis for vacating Pharoah’s sentence. The record here reflects that the
sentencing judge was predisposed on remand to impose the same 100-year sentence he had given
Pharoah initially. The judge therefore failed to give fair consideration to the statutory youth-based
sentencing factors or to the full range of sentences now available under the new sentencing scheme
for defendants who committed crimes as juveniles. Accordingly, we vacate Pharoah’s sentence
and remand for resentencing.
¶5 I. BACKGROUND
¶6 A. Trial and Initial Sentencing
¶7 Pharoah was charged with the first degree murder of DeAntonio Goss and the attempted
murder and aggravated battery with a firearm of Corey Thompson. We summarized the evidence
presented at trial in some detail in our prior decision on direct appeal. Morris, 2017 IL App (1st)
141117, ¶¶ 3-14. We revisit it again here only briefly.
¶8 Corey Thompson testified that on September 8, 2010, he was walking home from Bowen
High School with a group of friends, including DeAntonio Goss, when they came upon Pharoah
and his friend Lacy Sheppard. Pharoah pulled a gun on them, saying, “[t]his is what y’all want,
this is what y’all going to get.” Seeing the gun, Corey and DeAntonio ran in different directions.
Corey felt something hit him in his buttocks. He fell down but picked himself up and began running
again. When he could no longer keep going, he lay down in the street. He heard DeAntonio looking
for him, saying, “CJ, where are you, where are you, are you okay?” Corey then saw Pharoah
heading in the direction of DeAntonio’s voice and heard a few more gunshots before he lost
consciousness. Corey was in the hospital for three weeks and underwent two surgeries as a result
of his injuries.
¶9 Two of the students walking with Corey and DeAntonio also witnessed the shooting and
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identified Pharoah from in-person lineups.
¶ 10 To show identity and the absence of mistake, the State was allowed to present evidence of
another shooting that took place two weeks before the one at issue in this case. Marvin Floyd
testified that on the afternoon of August 23, 2010, he rode his bike to a gas station near his home
and saw Pharoah there, with what appeared to be a gun under his pants. Marvin fled on his bike
but was shot in the back. He spent two months in the hospital and also underwent two surgeries.
¶ 11 A bullet recovered from Marvin’s body matched a bullet recovered from DeAntonio’s
body, and it was determined that the bullets were fired from the same gun.
¶ 12 The State also introduced evidence that Pharoah had taken steps while incarcerated to
prevent the State from calling its witnesses at trial. Ricky Whitehead, Pharoah’s cellmate at the
Cook County jail, testified that Pharoah gave him a list of the State’s witnesses, including Corey
Thompson, and asked if Mr. Whitehead could have those individuals “tooken care of.” Mr.
Whitehead understood this to mean that Pharoah wanted the witnesses killed. He showed the list
to a prison official before returning it to Pharoah.
¶ 13 Eric Bucio, an instructor at the jail complex, testified that he was assigned to investigate
the matter and found the list among the personal items Pharoah kept in his jail cell.
¶ 14 The State rested, the defense presented no evidence, and after deliberating, the jury found
Pharoah guilty on all counts.
¶ 15 The PSI report revealed the following. Pharoah’s father was incarcerated in another state.
Pharoah had begun drinking alcohol at age 9 and using marijuana at age 11. By the age of 13, he
was drinking multiple glasses of hard liquor per day. Pharoah had started seeing a psychiatrist at
age 12 for anger management. He was diagnosed and prescribed medication for bipolar disorder.
And he had reported attempting suicide multiple times.
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¶ 16 Following a hearing, the trial court initially sentenced Pharoah to an aggregate term of 100
years in prison (consecutive terms of 30 years for first degree murder and 25 years for attempted
first degree murder, plus what were then mandatory firearm enhancements of 25 years and 20
years, respectively, on those two charges, with the battery charge merging into the attempted
murder charge). The court concluded that Pharoah had a “malignant heart,” observed that there
was “[n]ot much” to consider in mitigation besides the fact that he was 16 years old at the time of
his offenses, and was satisfied that Pharoah had “earned every single day, every single minute,
[and] every single second” of his sentence. “Is there room for rehabilitation for Pharoah Morris?”
the court asked. “That’s up to him. If he’s rehabilitated he’ll be inside, however.”
¶ 17 B. Initial Direct Appeal
¶ 18 In his initial direct appeal, Pharoah argued, among other things, that his 100-year sentence
was a mandatory de facto life sentence. He maintained that the statutory sentencing scheme then
in place, which required the trial court to sentence him to consecutive prison terms with
corresponding mandatory 25-year and 20-year firearm enhancements, precluded the sentencing
judge from considering his youthful characteristics and thus violated both the eighth amendment
and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).
Morris, 2017 IL App (1st) 141117, ¶ 19. This court agreed. We noted that, while Pharoah’s appeal
was pending, our supreme court had extended the holding in Miller, 567 U.S. at 465, to de facto
life sentences (Morris, 2017 IL App (1st) 141117, ¶ 23 (citing Reyes, 2016 IL 119271, ¶ 9)). We
concluded that Pharoah, who would be required to serve at least 93 years of his 100-year sentence,
had received such a sentence. Id. ¶ 30.
¶ 19 Looking at the record as a whole, we were “not convinced that the trial court adequately
considered [Pharoah’s] youth and attendant circumstances” before imposing this mandatory
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de facto life sentence. Id. ¶ 32. We noted the trial court’s stated belief that for some crimes, “you
pretty much forfeit your right to be ever out on the street again” (internal quotation marks omitted)
and were unable to conclude that the judge had “carefully considered [Pharoah’s] youthful
characteristics against [the relevant] aggravating factors before coming to the ultimate conclusion
that [he] was ‘the rarest of juvenile offenders *** whose crimes reflect permanent incorrigibility,’
rather than *** ‘unfortunate yet transient immaturity.’ ” Id. (quoting Montgomery v. Louisiana,
577 U.S. 190, ___, 136 S. Ct. 718, 734 (2016)). We thus vacated Pharoah’s sentence and remanded
for resentencing.
¶ 20 We made clear in our opinion that Pharoah could elect to be resentenced on remand under
section 5-4.5-105 of the Code (730 ILCS 5/5-4.5-105 (West 2020)), which now specifically
requires sentencing judges to consider the youth-based factors set out in Miller before imposing a
sentence of any duration on a juvenile offender and which also gives courts the discretion to decline
to impose firearm enhancements when sentencing juveniles. Morris, 2017 IL App (1st) 141117,
¶¶ 34, 37, 44.
¶ 21 C. Resentencing on Remand
¶ 22 Private defense counsel was appointed to represent Pharoah on remand because the Public
Defender’s Office had a conflict of interest—it represented Pharoah’s mother, who was charged
with the attempted murder of Pharoah’s brother. At status conferences leading up to the
resentencing hearing, the trial court noted that People v. Buffer, 2019 IL 122327, ¶ 40, had been
decided, in which our supreme court held that a sentence of more than 40 years is a de facto life
sentence. The court also observed that Miller and the cases that had followed it, including Reyes
and Buffer, were all concerned with sentences of life in prison without parole. If Pharoah was
eligible for parole, the court asked, “[did] those cases apply at all?” The State took the position
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that they did not. “In other words,” the court said, “he could get the same sentence he got before.”
¶ 23 Defense counsel agreed. “I still think, though,” he noted, “that the Appellate Court’s
opinion [was] that it would be mandatory [for] this court [to] take into consideration [Pharoah’s]
youth at the time of sentencing.” The trial court accepted that this was true but believed our opinion
had been only a “soft reversal.” He then expressed some frustration with his task on remand, noting
that this court “did not say the sentence was wrong” but were now asking him to “consider the fact
that [Pharoah] was a young guy.” He may not have mentioned Pharoah’s specific age, but the
judge was sure he had noted at the original sentencing hearing that Pharoah was “a young guy”
and “[a] young guy is a young guy.” The judge said, “I just think it’s in some respect ridiculous.”
¶ 24 Before the resentencing hearing, the parties submitted a joint memorandum on the status
of the law governing juvenile sentencing. They noted that Pharoah was entitled to be resentenced
under either the law in effect at the time of his offenses or the law in effect at the time of his
resentencing, that the sentencing range for first degree murder was 20-60 years, that the sentencing
range for attempted murder was 6-30 years, and that the firearm enhancements that had previously
been mandatory were now discretionary. They gave an overview of the relevant case law, the
codification in Illinois of the youth-based sentencing factors set out in Miller, and the new
availability of parole for individuals who were under the age of 21 at the time of their crimes.
¶ 25 The judge began the resentencing hearing on November 22, 2021, by announcing that the
Illinois Supreme Court had recently held in People v. Dorsey, 2021 IL 123010, ¶ 65, that day-for-
day credit must be deducted when determining whether a lengthy, term-of-years sentence qualifies
as a de facto life sentence under Buffer. The judge noted that the defendant in Dorsey had been
sentenced to “a whole bunch of time” but that with day-for-day credit he might only serve 40 years.
The judge’s understanding was that in such a situation, “Buffer doesn’t really apply and it is a
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proper sentence.” The judge noted that Dorsey “talked about eligibility for parole as well” and
instructed the parties to direct the court’s attention to this and any other relevant law, saying “put
in what you want to put in and I will read what I think applies as well.”
¶ 26 The parties waived opening arguments, and the State called Darryl Jackson, DeAntonio’s
father, to the stand to read his victim impact statement into the record. Mr. Jackson stated that his
son was a 16-year-old high school student at the time of his death and had been senselessly killed
because he tried to save his friend’s life as they walked home from school.
¶ 27 The parties stipulated that, while incarcerated, Pharoah had been convicted twice for
aggravated battery/great bodily harm to a correctional officer (for which he received concurrent
sentences of three years and six months, respectively, to be served consecutively with his sentence
in this case) and had additional felony charges of aggravated battery to a correctional officer in a
third case that was still pending. An Illinois Department of Corrections report said that Pharoah
had also been involved in a fight in 2017, in which he stomped on an inmate’s head until warning
shots were fired and the inmate had to be airlifted from the prison for medical treatment.
¶ 28 The State then pointed out to the court that although the PSI report indicated that Pharoah
had been hospitalized for suicide attempts, the records detailing his three admissions to Hargrove
Hospital—in 2006, 2007, and 2008—made no mention of suicide.
¶ 29 Pharoah’s counsel introduced letters in mitigation from Pharoah’s mother, fiancée,
childhood friends, and former classmates, all attesting to his character and their belief in his
capacity for change. Pharoah’s mother explained that she was a single mother of five children and
that, together, she and Pharoah had “battled with his mental health and learning disabilities” and
had done “the best [they] could without any help.” She asked the court to show mercy on her son
and to understand that at the time of his offenses, Pharoah “was not stable enough to be on his own
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and had limited decision-making skills.”
¶ 30 Tazesia Rutley, a longtime friend of Pharoah’s and his fiancée of one month, testified that
Pharoah was a gentleman, always made her feel “safe and protected,” and would “put others before
himself and keep them out of harm’s way.” She pleaded with the court to give him a second chance
because he was human, all humans make mistakes, and he was “willing to grow and change his
life around if given the opportunity.”
¶ 31 A brief discussion of the relevant law followed. The State noted that “a lot ha[d] changed
*** since [Pharoah] was sentenced the first time around in 2014.” It pointed out that under the new
statutory sentencing scheme he had chosen to be resentenced under, Pharoah would have two
opportunities to petition for parole—after serving 20 years in prison and again after serving 30
years. The sentencing judge found this significant. He agreed with defense counsel that a 100-year
sentence, “without any of these mitigating factors,” was a de facto life sentence but concluded that
the law did not preclude such a sentence, so long as the relevant factors were considered. “I could
reimpose the sentence I gave him before. I think,” the court stated.
¶ 32 The parties then made their arguments. The State emphasized that two weeks before
DeAntonio’s murder, Pharoah had “popped out of no where [sic]” and shot Marvin Floyd off of
his bicycle. After weeks of life-saving treatment, Marvin had survived. That had been an
opportunity for Pharoah to reflect on what he had done, get rid of the gun, and “change his ways.”
Instead, the State argued, he and a friend were kicked out of school on the first day of classes, and
Pharoah retrieved his gun and “ambushed” a group of students walking home from school. He shot
Corey in the back as he was running away and shot DeAntonio when he came back to help his
friend.
¶ 33 The State reminded the court that, while awaiting trial, Pharoah had made a “kill list” and
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tried to hire a hit man to eliminate the State’s witnesses. And he had continued to commit violent
crimes in prison. The State did not seek a specific sentence on remand but urged the court to impose
the discretionary firearm enhancements, saying, “[i]f there is one person that deserves
discretionary add-ons, it is the defendant,” and asked it to impose a sentence that would “tell people
that no matter what age you are you can’t just shoot people as they are running away from you.”
¶ 34 Before allowing defense counsel to proceed, the judge questioned the State regarding
whether, as a matter of law, he could impose the same 100-year sentence he had before. The
following exchange took place:
“THE COURT: Mr. Allen, do your thoughts at this point allow the Court, in your
opinion at least, to reimpose the sentence I gave him before? Does your viewpoint allow
me, within the law, to reimpose the same thing I gave him before, a hundred years all
together? I am not saying I would or I wouldn’t, but do you think I could?
MR. ALLEN [Assistant State’s Attorney]: The appellate court certainly indicated
that they were not telling this court that you could not resentence him. The Buffer case
seems to indicate a much lower number, but we are asking you to go outside of the Buffer
restrictions because the defendant has earned it, earned it back in 2010 and continued to
earn it while he has been picking up and getting convicted.”
THE COURT: Buffer does not preclude a sentence of more than 40 years?
MR. ALLEN: Correct.”
The judge then turned things over to defense counsel, noting that it was “kind of a tough act to
follow” but instructing counsel to “[g]o ahead.”
¶ 35 Defense counsel argued that the case had been remanded for the court to consider not just
youth as an abstract concept but specific youth-based sentencing factors. Pharoah’s upbringing,
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counsel argued, was “deplorable” and “tragic.” His father was in prison in another state, his mother
had neglected him and put him in harm’s way, and he was sexually abused by older women and
introduced to illegal substances at a young age. Pharoah had been hospitalized for mental illness
and his school had attempted to intervene to provide him with special education services, but his
problems had persisted. Counsel argued that “[t]he Buffer court made it clear that de facto life”
should be “the last resort of the court when fashioning sentences” and that punishment should be
considered but also “the potential for rehabilitation and the hope of an entire life not being lost for
sentences in the 80, 90, 100-year range.” He asked for “a substantial deviation” from the sentence
previously imposed and, specifically, for the court not to impose the now-discretionary firearm
enhancements.
¶ 36 The court asked defense counsel if Pharoah’s mental health struggles were all self-reported.
Counsel acknowledged that, with the exception of the individualized education plan (IEP)
documented by his school, they were, but he urged the court to find that the school’s records lent
credence to what Pharoah himself had reported.
¶ 37 The judge then made a preliminary pass through the youth-based sentencing factors,
making clear that he was “not ruling on those things at [that] point” but “just asking, in effect,
rhetorical questions.” He concluded by saying that he had made “[j]ust a quick glance” and “not a
thorough reading,” but he was “not jumping up and down in Pharoah Morris’s favor at [that]
point.” He then asked defense counsel, “do you feel like I can consider more sentence than 40
years?” Counsel replied:
“[I]t is my opinion that the Buffer case and the mandate from the appellate court in
this case is that sentences should be in that 40-year range for juveniles being sentenced
outside of many, many, many extenuating circumstances.
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*** That’s what was contemplated, I believe, by the appellate court when this was
handed down.”
¶ 38 The sentencing judge responded that he believed that, in remanding the case, this court was
“basically saying *** yeah, you can give him a hundred years, but think it over and see what you
think.” It was “a curious fact,” he noted, and something he had “checked into,” that the defendant
in Miller, the seminal case on juvenile sentencing, was “still in custody serving whatever sentence
he got back in those days, a life sentence.” He concluded the hearing and took the matter under
advisement, saying, “I will consider it. I will do what I think is the right thing to do. I always do
what I think is the right thing to do.”
¶ 39 Court reconvened on December 15, 2021. The sentencing judge opened by reiterating that
in Miller the defendant, who was only 14 at the time of his crime, had recently been resentenced
to life without parole. That showed, the judge said, that although cases had come down over the
years “with favorable dispositions for juveniles,” they “[did] not preclude a life sentence.” The
sentencing judge noted that, although there were now “certain issues you have to deal with” in
order to “make a life sentence work,” the case law “d[id] not preclude that possibility.” The judge
also noted that both Miller and Buffer talked about life or de facto life sentences “without parole.”
Unlike the defendants in those cases, however, Pharoah would be eligible for parole after 20 years
and, if unsuccessful then, again after 10 additional years.
¶ 40 The judge then read the entire parole statute into the record, saying, “[i]t looks like this law
was written with Pharoah Morris in mind.” Although the sentencing judge expressed skepticism
over whether Pharoah would ever be released on parole, noting that it was “almost a scary
thought,” he would at least be given a chance to get out of prison. In the court’s view, that was all
the law required.
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¶ 41 Before announcing Pharoah’s sentence, the judge said that he had “[o]ne more comment”
and then he would be “done talking for today.” He then briefly addressed each of the new statutory
sentencing factors applicable to juvenile offenders:
“There’s a statute that talks about considerations to take which I have done and
there—I’ve considered all these different things *** they’re statutory considerations.
The person’s age, impetuosity, level of maturity at the time of the offense including
the ability to consider risk and consequences of behavior, the present and cognitive or
developmental disability or both if any.
Age. Yeah, 16.
Impetuosity. These are thought out crimes. Not impetuousness. He goes up to the
guys on the street and shoots and kills one and shoots the other. I’m not sure what
impetuosity has to do with that whatsoever.
Level of maturity. Well, Morris, for a 16 year old, was quite mature, and that’s
shown by his conduct at the jail. I want those witnesses taken care of. That shows
conscientious thought on his part.
***
Present and cognitive or developmental disability. Well, special education classes.
*** [W]hether a person is subject to outside pressure including peer pressure,
familial pressure, negative influences. While it’s true that Morris says at the time of the
incident or around that time at least he was a member of a gang. (Indecipherable) influenced
one way or the other.
Two guys walking down the street from school. One guy riding his bike. Witnesses
might’ve (indecipherable) something he had about the case itself. There’s no peer pressure
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on Pharoah Morris.
Familial pressure. Well, like I said before, his mother didn’t treat him the best. No
pressure on her part to go out and kill somebody however. ***
The person’s family, home environment, educational, social background, including
a history of parental neglect, physical abuse, other childhood trauma. Well, he was
neglected by the mother and women he had to deal with sexually at his young age according
to Pharoah Morris.
[P]otential for rehabilitation, evidence of rehabilitation or both. I’d say he hasn’t
shown it so far.
[He’s had] crimes committed while he’s in custody. One would see that if a guy is
in custody awaiting trial or awaiting resentencing he’d be a model prisoner. He wouldn’t
want to get into it with the guards at the penitentiary or the guard at the jail or an inmate in
prison somewhere. You want to be a model prisoner, rehabilitate, do your best you can to
get out at some point or another.
***
Well, role of the offense? *** He killed the boy himself. There is no accountability
issue there. Participation is he was the murderer. That’s the participation of Pharoah
Morris.
Planning. Well, who knows about the planning part. He walked up to two guys on
the street with a gun on him. Maybe he had some bad thoughts already. Whether it was
planned or not who knows.
Able to participate in his or her defense. Well, he had a good lawyer at trial putting
forward (indecipherable). Lawyers cannot change the evidence in a given case. They could
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put a little different spin on it. They can’t change it.
***
The person’s prior juvenile or criminal history. *** At the time of the murder he
was on probation for aggravated robbery. ***
***
Prior juvenile history I already mentioned that the basis for aggravated robbery.
Other information the Court finds relevant and reliable *** Well, he’s not said anything in
court. I won’t hold that against him one twit. By his conduct, however, for what he’s done
he’s not shown any remorse whatsoever. *** It’s one thing after another for Pharoah
Morris. Either on the street, in the penitentiary, in the county jail, wherever else he could
find a suitable victim and he found plenty.
¶ 42 The court then imposed the same sentence that it had before—55 years for the first degree
murder of DeAntonio Goss and 45 years for the attempted murder of Corey Thompson. The judge
reiterated that Pharoah had “earned every single day” of that 100-year sentence by killing a 16-
year-old boy, calling it all “a tragic waste.”
¶ 43 The court denied defense counsel’s motion for reconsideration, and this appeal followed.
¶ 44 II. JURISDICTION
¶ 45 Pharoah was resentenced on December 15, 2021, and timely filed his notice of appeal the
same day. Our jurisdiction over this appeal is pursuant to article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Feb. 6, 2013)
and 606 (eff. Mar. 12, 2021), governing appeals from final judgments of conviction in criminal
cases.
¶ 46 III. ANALYSIS
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¶ 47 The United States Supreme Court held in Miller that a statutorily mandated sentence of life
without parole for a juvenile offender violates the eighth amendment’s prohibition of cruel and
unusual punishments because it deprives the sentencing court of the ability to consider the
“diminished culpability and heightened capacity for change” inherent in youth. Miller, 567 U.S.
at 479. This was deemed a new substantive rule of constitutional law with retroactive effect.
Montgomery, 577 U.S. at ___, 136 S. Ct. at 736.
¶ 48 In 2016 and 2017, our own supreme court extended Miller’s holding to include mandatory
de facto life sentences—sentences so long that they are the functional equivalent of life without
parole (Reyes, 2016 IL 119271, ¶ 9)—and discretionary life sentences (Holman, 2017 IL
120655, ¶ 40). However, as noted above, the supreme court’s decision in Holman was just
overruled by Wilson, 2023 IL 12766, ¶ 42. Our supreme court answered the question of how
lengthy a sentence must be to constitute a de facto life sentence in 2019, when it decided in Buffer,
2019 IL 122327, ¶¶ 32, 34, 36-41, that sentences exceeding 40 years would be considered de facto
life sentences. Id.¶ 49 A. Whether Miller Applies Here
¶ 50 The question initially raised by this appeal was whether the holding in Miller applies when
a defendant has been sentenced to more than 40 years but will be eligible for parole after just 20
years. The State maintains, as the circuit court firmly believed, that Miller and its progeny have no
application under these circumstances. It argues that our supreme court’s decision in Dorsey, 2021
IL 123010, ¶ 65, holding that day-for-day good-conduct credit must be deducted when
determining whether a sentence is a de facto life sentence under Buffer, compels this conclusion.
¶ 51 Several years ago, our legislature made parole available to individuals who were under the
age of 21 at the time of their offenses and who are sentenced after June 1, 2019. See Pub. Act 100-
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1182, § 5 (eff. June 1, 2019) (adding 730 ILCS 5/5-4.5-110(b)), and Pub. Act 101-288, § 10 (eff.
Jan. 1, 2020) (amending and renumbering as section 5-4.5-115). Parole will thus be available to
Pharoah, who was resentenced in 2021.
¶ 52 As Pharoah points out, and as the Dorsey court itself recognized, parole is a matter of
legislative grace, while the day-for-day good-conduct credit at issue in Dorsey is closer to an
entitlement; it generally must be awarded, and there are mechanisms for judicial review in place
to ensure it is revoked only where warranted. See Dorsey, 2021 IL 123010, ¶¶ 60-61.
¶ 53 The impact of parole on the Miller requirements has been addressed by a number of courts
in other states, where parole has been available for much longer than it has been in Illinois. Some
of those courts have concluded that the mere possibility of parole does not, on its own, constitute
a meaningful opportunity for release sufficient to bring a life sentence imposed on a juvenile
outside the purview of Miller. In State v. Patrick, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 33, for
example, the Ohio Supreme Court concluded, based in part on the fact that the state’s parole release
rate from 2011 to 2018 was only 10 percent, that the difference between a life sentence with parole
and a life sentence without parole was “not material for purposes of an Eighth Amendment
challenge by [a juvenile] offender.” (Emphasis added.) Id. ¶ 33. In Howard v. Coonrod, 546 F.
Supp. 3d 1121, 1132 (M.D. Fla. 2021), a federal district court in Florida similarly concluded that
by “detail[ing] out the ways in which Florida’s parole system denies a ‘realistic opportunity for
release based on demonstrated maturity and rehabilitation,’ ” the plaintiffs in that case had
sufficiently pleaded eighth amendment violations. The court in Maryland Restorative Justice
Initiative v. Hogan, No. ELH-16-1021, 2017 WL 467731, at *27 (D. Md. Feb. 3, 2017), likewise
concluded that plaintiffs had “sufficiently alleged that Maryland’s parole system operates as a
system of executive clemency, in which opportunities for release are ‘remote,’ rather than a true
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parole scheme in which opportunities for release are ‘meaningful’ and ‘realistic.’ ”
¶ 54 The State directs our attention to People v. Elliott, 2022 IL App (1st) 192294, ¶ 56, where
this court concluded—in the context of a young-adult offender’s argument that he was the
functional equivalent of a juvenile—that a sentence providing the opportunity for parole before 40
years have passed “simply does not implicate Miller.” See also People v. Kendrick, 2023 IL App
(3d) 200127, ¶ 42 (reaching the same conclusion in the same context). Our supreme court has not
yet addressed the effect of parole on its Miller jurisprudence.
¶ 55 However, we need not decide the impact of the availability of parole in this case because,
as noted below, it can be resolved on statutory grounds. In addition, this question may also be moot
in light of our supreme court’s recent decision in Wilson, 2023 IL 127666. Wilson overruled
Holman, 2017 IL 120655, ¶ 40, which had held that Miller applies to discretionary, as well as
mandatory, life sentences. Wilson, 2023 IL 127666, ¶¶ 29, 41-42. Under Wilson, so long as a
juvenile offender “was sentenced under a sentencing scheme that granted the sentencing court the
discretion to consider [his or her] youth and attendant circumstances and to impose less than a
de facto life sentence,” and so long as it is also “clear from the record that the sentencing court did
not refuse, as a matter of law, to consider [the defendant’s] youth” (emphasis added), the defendant
will be found to have “received the constitutionally required procedure under Miller.” Id. ¶ 44. It
is clear in this case that Pharoah received a discretionary life sentence. The minimum sentence for
first degree murder is 20 years in prison (730 ILCS 5/5-4.5-20 (West 2020)), the minimum
sentence for attempted first degree murder is 6 years (720 ILCS 5/8-4(c)(1) (West 2020); 730 ILCS
5/5-4.5-25(a) (West 2020)), and, as noted above, the firearm enhancements that were once
mandatory were discretionary on resentencing. Because the court had the discretion to give
Pharoah a sentence as low as 26 years, it would appear after Wilson that no eighth amendment
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claim is available to him.
¶ 56 In his response to the State’s motion for leave to cite Wilson as supplemental authority,
Pharoah points out that Wilson specifically left unanswered the question of whether more is
required of a sentencing court under the proportionate penalties clause. He maintains that courts
are still required, following careful consideration of the youth-based sentencing factors articulated
in Miller, to make a finding of permanent incorrigibility before imposing a life or de facto life
sentence on a juvenile. Pharoah did not make a separate proportionate penalties clause argument
on appeal but did refer to the clause several times in his briefs.
¶ 57 There is no need for us to decide either of these constitutional issues where, as discussed
below, this case can be decided solely on nonconstitutional grounds. Our supreme court has
repeatedly admonished this court that “cases should be decided on nonconstititional grounds
whenever possible,” with constitutional issues reached “only as a last resort.” In re E.H., 224 Ill.
2d 172, 178 (2006).
¶ 58 B. The Sentencing Judge was Predisposed to Impose the Same Sentence on Remand
¶ 59 The youth-based sentencing factors set out in Miller were adopted by our General
Assembly and are now codified in section 5-4.5-105(a) of the Code. There is no question, with or
without the availability of parole, that the trial court was required to consider those statutory factors
on remand. See 730 ILCS 5/5-4.5-105(a) (West 2020) (“the court *** shall consider the following
additional factors in mitigation” (emphasis added)). Nor do we believe our supreme court’s
decision in Wilson, which deals exclusively with what is required under the eighth amendment,
has any bearing on our assessment of whether that was done here.
¶ 60 We generally review a trial court’s sentencing decision for an abuse of discretion (People
v. Stacey, 193 Ill. 2d 203, 209 (2000)), and the State emphasized at argument that this is a very
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deferential standard of review. Pharoah’s argument here is that the court was predisposed to
impose a certain sentence and failed to keep an open mind while considering the relevant factors
and evidence during the resentencing hearing. We must consider, then, “whether the trial court
did, in fact, exercise its discretion or whether it abused that discretion by acting in an arbitrary
manner.” People v. Bolyard, 61 Ill. 2d 583, 586-87 (1975) (concluding that it was an abuse of
discretion for the court to arbitrarily refuse to consider probation as a possible sentence).
¶ 61 We will order a new sentencing hearing where a judge’s comments on the record indicate
that he or she has predetermined a defendant’s sentence before considering the relevant statutory
factors. We did so in People v. Zemke, 159 Ill. App. 3d 624, 629 (1987), where it was “apparent
that [the judge] would not have considered sentencing the defendant to anything less than the
maximum term” for a crime that the judge personally considered “more reprehensible than
murder.” And we did so in People v. Coleman, 212 Ill. App. 3d 997, 1002 (1991), where
immediately after finding the defendant guilty, and before any evidence in mitigation or
aggravation had been presented, the trial judge stated that he was “ ‘contemplating the maximum
[sentence] just to get [the defendant] off the streets and try to get him some treatment.’ ”
¶ 62 Resentencing is likewise appropriate where the judge’s comments reveal that he or she
refused to consider the whole range of statutorily permissible sentences. In Bolyard, 61 Ill. 2d at
585, for example, our supreme court remanded for resentencing before a new judge where it
concluded that the sentencing judge had refused to consider probation as a possible sentence. Id.
at 587. We did the same in People v. Kendrick, 104 Ill. App. 3d 426, 435-36 (1982).
¶ 63 Here, we agree with Pharoah that the record as a whole demonstrates that the sentencing
judge was preoccupied with whether he could simply reimpose the same 100-year sentence on
remand—something the State had not even asked him to do. He raised the question with both the
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State and with defense counsel on multiple occasions before, during, and after the resentencing
hearing (“In other words, he could get the same sentence he got before.”/“I could reimpose the
sentence I gave him before. I think.”/“Does your viewpoint allow me, within the law, to reimpose
the same thing I gave him before, a hundred years all together?”) He also seemed to view the
youth-based sentencing factors, not as considerations meant to assist him in choosing from among
the whole range of possible sentences but rather as “certain issues you have to deal with in order
to make a life sentence work.” This results-driven approach is not what the statute contemplates
and was an abuse of discretion. Pharoah must be sentenced a third time, by a judge who will adhere
to the legislature’s directives regarding the sentencing of youthful offenders, while remaining open
to all possible sentences.
¶ 64 Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) permits a reviewing court, in its
discretion, to order that a case be assigned to a different judge on remand. People v. Serrano, 2016
IL App (1st) 133493, ¶ 45. We find that the interests of justice would be furthered by the exercise
of that discretion here. Pharoah has been sentenced twice by the same judge. To ensure that both
he and the State are able to approach resentencing with confidence that the judge will properly
apply the current law with no predisposition based on what sentence might have been appropriate
under a sentencing structure that is no longer in place, we direct the presiding judge of the criminal
division to assign this case to a different judge within that division.
¶ 65 IV. CONCLUSION
¶ 66 We vacate Pharoah’s 100-year sentence and remand this case to the presiding judge of the
criminal division of the circuit court with directions to assign the case to a different judge for
resentencing.
¶ 67 Reversed and remanded with directions.
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People v. Morris, 2023 IL App (1st) 220035Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR-
17983; the Hon. Stanley J. Sacks, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Melinda Grace Palacio,
for of State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Douglas P. Harvath, and Margaret M. Smith,
Appellee: Assistant State’s Attorneys, of counsel), for the People.
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