People v. Gibbs

2022 IL App (5th) 200096-UNOTICE
NOTICE
Decision filed 05/16/22. The
This order was filed under
text of this decision may be NOS. 5-20-0096, 5-20-0097 cons.
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Union County.
)
v. ) Nos. 92-CF-4, 92-CF-5
)
MARK GIBBS, ) Honorable
) Jeffery B. Farris,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE WHARTON delivered the judgment of the court.
Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: The defendant’s sentence of natural life in prison was authorized by statute where
he pled guilty to killing more than one victim. The defendant’s natural life sentence,
imposed after a resentencing hearing at which the court heard and considered
extensive evidence concerning the Miller factors, did not violate the federal and
state constitutions under Miller v. Alabama, 567 U.S. 460 (2012), and People v.
Holman, 2017 IL 120655. The court did not rely on misstatements of facts in
determining the defendant’s sentence. Mention of an improper sentencing factor
did not require reversal where it played no role in the court’s sentence. The trial
judge did not substitute his personal beliefs for the analysis offered by the
defendant’s expert witness. The defendant was not denied his right to the effective
assistance of counsel, either due to the defense team’s failure to fully comply with
Rule 711 or because defense counsel allowed one of the law students assisting
under that rule to stand on the written motion to reconsider sentence.
¶2 In January 1992, the defendant, then 17 years old, shot both of his parents to death. He
initially claimed that he found them after returning from the grocery store, but he later confessed
to the crime. In February 1995, the defendant pled guilty. The court sentenced him to natural life
1
in prison, a sentence that was mandated by statute because the defendant killed more than one
individual. See 1989 Ill. Rev. Stat., ch. 38, ¶ 1005-8-1(a)(1)(c) (now at 730 ILCS 5/5-8-
1(a)(1)(c)(ii) (West 2020)).
¶3 In 2012, the United States Supreme Court held that a mandatory sentence of life in prison
without parole violates the eighth amendment (U.S. Const., amend. VIII) when imposed for a
crime committed by a juvenile. See Miller v. Alabama, 567 U.S. 460, 479 (2012). Subsequently,
the defendant filed a postconviction petition, arguing that his sentence was unconstitutional under
Miller. During postconviction and resentencing proceedings, defense counsel was assisted by four
law students pursuant to Illinois Supreme Court Rule 711 (eff. July 1, 2017), one of whom
presented arguments prior to being certified under that rule. After conducting a lengthy
resentencing hearing during which the court heard and considered substantial evidence concerning
the Miller factors, the court sentenced the defendant to a discretionary sentence of natural life in
prison. The defendant filed a motion to reconsider sentence, which the court denied.
¶4 On appeal, the defendant argues that (1) his natural life sentence was not authorized by the
applicable 1992 statutes; (2) the sentence is unconstitutional under Miller because the court did
not give adequate consideration to the mitigating features of youth; (3) the court misstated
evidence before it and relied on these misstatements of fact in imposing the sentence; (4) the court
considered a factor inherent in the offense of murder as a factor in aggravation; (5) the trial judge
substituted his personal views for the analysis provided by the defendant’s expert witness; (6) the
defendant was denied the assistance of counsel due to violations of Rule 711; and (7) he received
ineffective assistance of counsel because one of the students stood on the written motion to
reconsider sentence, thereby forfeiting issues he raises on appeal, and the supervising attorney did
not correct this error. We affirm.
2
¶5 I. BACKGROUND
¶6 On the evening of January 6, 1992, the defendant fatally shot his parents, Richie and Betty
Gibbs, while they slept. Richie died immediately. Betty died in the hospital a few days later. After
the shooting, the defendant called his uncle, Gary Gibbs, who called the police and ambulance.
Initially, the defendant told his uncle and the responding police officers that he returned from the
grocery store to find that his parents had been shot. However, he later confessed to the murders.
¶7 The defendant filed a motion to suppress his statements. At a hearing on that motion, Agent
John Nagle testified about the circumstances surrounding the defendant’s statements. Nagle
testified that the defendant initially told Agent Monica Joost and Deputy David Livesay, two of
the responding officers, that he found his parents after returning from the grocery store. Nagle
decided to reinterview the defendant after learning that a telephone call had been placed from the
Gibbs residence to Reverend Scott Smith, something the defendant did not mention in his initial
statement to Joost and Livesay. Nagle questioned the defendant in a police vehicle parked outside
the Gibbs residence.
¶8 Nagle testified that the defendant told him that he returned home from the store to find that
his parents had been shot. When the defendant finished his story, Nagle asked the defendant if he
remembered anything else that he had forgotten to mention. The defendant said he could not
remember anything else. When Nagle told the defendant that he knew about the call to Smith, the
defendant acknowledged making the call. In response to questioning, the defendant admitted to
Nagle that he had called Smith before calling his uncle. He further admitted that before calling
Smith, he had called one of Smith’s relatives to obtain Smith’s phone number. Nagle told the
defendant that he thought it was “quite unusual” that he would place two phone calls before calling
his uncle. At this point, the defendant admitted that he shot his parents.
3
¶9 Nagle was asked to describe the defendant’s emotional state during his interview in the
police car. He replied, “I would say he was nervous. He wasn’t crying or physically upset.”
¶ 10 The defendant was arrested and taken into custody. Shortly after midnight, he gave a more
detailed statement to Nagle and Trooper James Patterson. He told them that he decided to kill both
his parents because he feared he would get in trouble due to his bad grades in school. He stated, “I
thought killing my parents would solve my problem.” He acknowledged that he did not have any
problems with his parents on the day of the shooting.
¶ 11 The defendant gave the following account of the events surrounding the shooting: He
returned home from school at 4:15 p.m. and began doing his laundry. His parents were not home
at the time. They arrived home half an hour later, at which time his mother prepared dinner while
his father watched television. The defendant ate dinner alone in the kitchen while his parents ate
their dinner in the front room.
¶ 12 After dinner, the defendant went upstairs, finished his laundry, and retrieved his father’s
gun from the top drawer of his parents’ dresser. He then left the gun in his bedroom and went
downstairs to retrieve 10 shells from a pair of coveralls that were located downstairs. While he
was downstairs, the defendant noticed that his mother had fallen asleep on the sofa. He returned
to his bedroom and loaded the gun.
¶ 13 After loading the gun, the defendant came downstairs and saw that both of his parents were
asleep. His mother was sleeping on the sofa, and his father was sleeping on the floor, lying on his
back. The defendant shot his father once in the head, then shot his mother twice in the head. He
then went upstairs and packed a suitcase so he could run away.
¶ 14 The defendant put the suitcase in the back of his mother’s car, then went back into the
house to get the gun. After putting the gun in the front seat of his mother’s car, he went into the
4
house again to call Scott Smith, a preacher he knew who lived in Georgia. His intent was to run
away to Smith’s house, and he needed to get directions.
¶ 15 However, the defendant “decided not to go to Scott’s, but to find a way to hide what [he]
did to [his] parents.” To that end, he decided to drive into town and go to the store and make it
look like his parents were shot while he was out. He took a 12-pack of Pepsi from the house and
put it in the car to dispose of elsewhere so it would look like he needed to go to the store for more
Pepsi. He also took $16 from his father’s wallet. Taking the money required the defendant to roll
his father’s body to the side so he could reach into his father’s back pocket to retrieve the wallet.
¶ 16 The defendant drove to an iron bridge near his house, dropped the gun into a creek, and
then drove into town. He went to a grocery store and bought milk and soda. He then threw the 12-
pack of Pepsi he had taken from the house into a dumpster and drove back to the house.
¶ 17 When he got home, the defendant took his suitcase out of the car, brought it upstairs, and
unpacked. He then called his uncle, Gary Gibbs, to tell him that his parents had been shot. Gary
told the defendant he would come to the house. At this point in his story, the defendant stated that
he could hear his mother breathing. Although he told Nagle and Patterson that he had thought she
was dead before he left to go to the store, he did not clarify precisely when he noticed she was still
breathing. The defendant admitted that he did not call the police or an ambulance. Instead, he went
outside and waited for Gary to arrive.
¶ 18 The defendant acknowledged that he initially told both his uncle and the police that he
found his parents upon arriving home from the store, as he had planned to do. He explained his
decision to tell the truth as follows: “I figured I would end up with more trouble if I continued to
lie.”
5
¶ 19 The trial court granted the motion to suppress. On appeal, however, this court reversed that
ruling in part, holding that while the defendant’s statements at the scene—given without the benefit
of Miranda warnings—were properly suppressed, his subsequent detailed statement—given after
he was provided with Miranda warnings—was voluntary and, therefore, admissible.
¶ 20 On February 27, 1995, the defendant entered an open plea of guilty. The prosecutor
presented the factual basis for the offense. In pertinent part, he told the court that if the matter went
to trial, the State would present testimony that the defendant told two female students about his
plan to shoot his parents earlier on the day they were shot.
¶ 21 The court sentenced the defendant to natural life in prison. This sentence was required by
statute because the defendant killed more than one person. See 1989 Ill. Rev. Stat., ch. 38, ¶ 1005-
8-1(a)(1)(c). As such, the court did not consider factors in aggravation and mitigation.
¶ 22 In 2012, the United States Supreme Court held in Miller that mandatory sentences of life
in prison without the possibility of parole run afoul of the eighth amendment when imposed for
crimes committed by juveniles. Miller, 567 U.S. at 479. In 2015, the defendant filed a
postconviction petition challenging his sentence on the basis of Miller. The petition was filed
through counsel. The attorney representing the defendant later withdrew as counsel, and the
defendant subsequently retained attorney Damian Ortiz to represent him in the postconviction
proceedings.
¶ 23 On June 25, 2018, Ortiz filed an amended postconviction petition on the defendant’s
behalf. He alleged that the defendant faced “significant developmental and physical growth
challenges” while growing up; that he was abused by his father throughout his childhood, both
physically and mentally; that he has shown remorse for his actions; and that he has “maintained a
6
positive prison disciplinary record.” He argued that the defendant’s natural life sentence was
unconstitutional under Miller, and that, as such, he must be resentenced.
¶ 24 We note that although the court did not initially enter an order explicitly granting the
postconviction petition, the court and both parties operated under the assumption that a new
sentencing hearing was required under Miller. To that end, the parties presented the court with
arguments concerning what possible sentences the court could impose. The court held a hearing to
address that question on January 15, 2019.
¶ 25 At the outset of the January 2019 hearing, the court noted for the record that the defendant
was present in court with his lead attorney, Damian Ortiz, and two of the law students who assisted
Ortiz pursuant to Rule 711. The two students introduced themselves as Marlee Turim and Margaret
Shadid, both from the Pro Bono Clinic at John Marshall School of Law. The court inquired, “And
you’re both 711 licensed?” Shadid replied, “License pending, Your Honor.” The court addressed
the defendant, stating, “Mr. Gibbs, it’s my understanding that some or all of the arguments that are
going to be made today on your behalf are going to be made by these two ladies. Now, they’re
both law students; they’re not lawyers. You understand that?” The defendant indicated that he
understood. The court asked the defendant if he was comfortable with the students presenting
arguments. He replied, “Yes, sir.” We note that, although the defendant consented orally to
representation by the students, the record does not contain a written consent. The court stated that
he would allow attorney Ortiz to supplement the arguments of the students “given the nature of
the case.”
¶ 26 The court then turned its attention to the parties’ arguments concerning the sentencing
range available and whether the sentences were to be served concurrently or consecutively. The
defendant opted to be sentenced under the laws in effect in 1992, when the offenses were
7
committed.1 The parties and the court agreed that the ordinary sentencing range for first degree
murder was 20 to 60 years. They also agreed that sentences on the two murders were to be served
concurrently.
¶ 27 The court heard arguments concerning the applicability of statutory provisions authorizing
extended-term sentences of 60 to 100 years or natural life in prison. The court noted that the statute
in effect in 1992 provided that “[t]he court shall sentence the defendant to a term of natural life if
it involves more than one victim.” Turim argued on the defendant’s behalf that under Miller, this
provision was made inapplicable to offenses committed by juveniles. She acknowledged, however,
that a natural life sentence would be consistent with Miller if it is discretionary rather than
mandatory. Shadid argued that an extended-term sentence of 60 to 100 years would run afoul of
Apprendi v. New Jersey, 530 U.S. 466 (2000), because there were no findings by a jury concerning
any of the factors that would make the defendant eligible for this sentence. The court took these
matters under advisement, and eventually ruled that the defendant could be sentenced to either a
term of 20 to 60 years or to natural life in prison.
¶ 28 The resentencing hearing took place over two days in November 2019. In aggravation, the
State presented the testimony of the defendant’s uncle, Gary Gibbs, and the defendant’s cousin,
Bradley Pender. Gary Gibbs testified that when he arrived at the defendant’s house on the night of
the shootings, he saw his sister-in-law, Betty Gibbs, “blowing bubbles in her own blood.” He also
1
We note there is a significant difference between the way sentence credit for good conduct was
calculated under the statutes in effect in 1992 and the way it is calculated under the statutes in effect now
and when the defendant was resentenced in 2019. In 1992, a defendant received day-for-day good conduct
credit against his sentence unless he was serving a natural life sentence. 1989 Ill. Rev. Stat., ch. 38, ¶ 1003-
6-3(a)(2). Under the “truth-in-sentencing” provisions, enacted subsequent to the defendant’s plea, a prisoner
serving a term of years for murder is not eligible for good conduct credit. 730 ILCS 5/3-6-3(a)(2)(i) (West
2016). In his postconviction petition, the defendant argued that applying sentencing provisions enacted
subsequent to the offense, such as the “truth-in-sentencing” law, would constitute an impermissible
ex post facto punishment.
8
testified that someone representing the defendant contacted him, but he told her that she would not
want to hear what he had to say. He testified that the defendant never confided to him that he had
been abused.
¶ 29 Bradley Pender’s mother is the sister of Gary and Richie Gibbs. Pender testified that he
was five years older than the defendant and that he saw him twice a week on average while they
were growing up. He explained that the extended family spent most holidays and many weekends
at the home of his grandparents. Pender testified that he never saw Richie get drunk or abuse the
defendant. He further testified that he never saw any evidence of a black eye or any other injury to
the defendant and that the defendant never told him about any abuse. Pender acknowledged that
the defendant did not confide in him about other matters either.
¶ 30 Pender testified that on the night of the murders, he called his uncle, Gary Gibbs, on the
telephone. Gary’s daughter answered the phone and told him that Gary had gone to Richie and
Betty’s house in response to a phone call he had received from the defendant. Pender drove to
Richie and Betty’s house, approximately a five-minute drive from his family’s home. He arrived
after Gary, but before the police. Pender testified that the first thing he saw on arrival was the
defendant “sitting on a retaining wall near the home, slumped over, kind of crying.” The defendant
did not say anything to Pender. Pender entered the house and saw his aunt, Betty Gibbs, “on the
couch trying to breathe.”
¶ 31 The State also presented victim impact statements from seven members of Richie Gibbs’s
family. Wendy Charles, Gary Gibbs’s daughter, stated that she answered the phone when the
defendant called to tell Gary about the murders. She stated that the defendant had “quite a giggle”
in his voice when he spoke to her, but she also stated that the defendant was crying when he talked
to Gary. Richie’s aunt, Linda Gibbs Samuels, described her visits with the defendant while he was
9
in jail awaiting trial. She stated that when she visited him a few days after the shooting, his first
words to her were, “Surprise, surprise.” She stated that he showed no remorse when she visited
him a second time. Both Wendy Charles and her mother, Judy Gibbs, stated that Gary Gibbs
experienced health problems after the shootings.
¶ 32 In mitigation, the defendant presented a mitigation report prepared by social worker
Melissa Mahabir and professor of social work Dr. Kalyn Flynn. Mahabir testified at length at the
resentencing hearing about the contents of the report. Because the defendant challenges many of
the court’s rulings concerning her testimony and the contents of the report, we will set forth her
testimony in detail.
¶ 33 Mahabir testified that she is a social worker and mitigation specialist. She explained that
mitigation work involves providing a life history of an individual—typically a criminal
defendant—to a court. She described the process she and Dr. Flynn used in preparing the
mitigation report in this case. Mahabir testified that they conducted 14 in-person interviews with
the defendant and attempted to corroborate what he told them through “collateral interviews” with
family members, friends, and correctional officers who knew him and through documentary
records, such as school records, police records, and prison records.
¶ 34 Mahabir next testified that she and Dr. Flynn researched the issue of parricide, meaning
cases in which a child murders his or her parents. She explained that research by Dr. Kathleen
Heide, a leading expert in the field, shows that parricide usually occurs in circumstances where the
child is “dangerously antisocial,” has severe mental illness, or has been severely abused. Marlee
Turim, one of the law students assisting counsel, asked Mahabir about the relationship between
these findings and the defendant’s life history. At this point, the State objected, arguing that
Mahabir was not qualified as an expert to give an opinion on whether the defendant fit in any of
10
the three categories. The prosecutor noted that at that point, she had not even been proffered as an
expert witness. In response, the court stated, “I assume she’s going to be proffered, I believe, as a
mitigation expert.” The court noted that if qualified as an expert witness, Mahabir could rely on
texts, such as those of Dr. Heide.
¶ 35 Turim asked Mahabir further questions about her expertise and experience. In pertinent
part, Mahabir testified that her job title is that of forensic social worker. Turim tendered her as an
expert in the fields of mitigation and forensic social work. The State again objected, arguing that
the defense cannot qualify Mahabir as an expert in one field and then use her testimony to
“shoehorn in” Dr. Heide’s opinions in another field. The prosecutor noted that Dr. Heide states in
her book that determining whether an adolescent parricide defendant fits into any of the three
categories she identified depends on a careful evaluation by a mental health professional.
¶ 36 The court questioned Mahabir about the job title of “forensic social worker” with no
objection from either party. The court asked whether that is a recognized job title that a social
worker can have anywhere “or is it a—for example, you can work for Hyatt Regency and be called
an ‘events specialist manager’ but you’re a party planner.” Mahabir testified that the job title of
“forensic social worker” is recognized by the National Association of Social Workers and is not
unique to her workplace. In response to further questions, she explained that forensic social work
is simply work performed within the criminal justice system, including preparing presentence
investigation reports (PSIs) and recommending services for prisoners. The court asked Mahabir
how she became qualified as a forensic social worker. In particular, the court asked whether she
went “to some specialized training where [she got] a certificate to hang on the wall or put in [her]
scrapbook.” Mahabir testified that the position does not require any specialized training beyond
the training necessary to become licensed as a social worker. The court qualified Mahabir as an
11
expert in social work. Pursuant to the request of attorney Ortiz, the court later clarified that Mahabir
was qualified as an expert in social work for the purpose of mitigation.
¶ 37 Mahabir was next asked to testify about her findings. She testified that she learned that
Richie Gibbs had abused alcohol, which led to both physical and verbal abuse of the defendant
and Betty. This abuse, in turn, led to low self-esteem and poor achievement in school for the
defendant. Mahabir obtained this information from the defendant, two of his aunts, and his
maternal grandmother. She stated that the claim of alcohol abuse was also corroborated from police
records documenting that Richie Gibbs was arrested on two charges of driving under the influence
and one charge of unlawful delivery of marijuana.
¶ 38 Mahabir next testified about the effects of trauma in the defendant’s life. She testified that
Richie regularly hit the defendant and that the defendant regularly witnessed arguments between
his parents and physical abuse of his mother by his father. She testified, “I’m not diagnosing Mark.
I don’t have that, you know, credential. But he has traits that correspond to trauma—withdrawal
and feelings of shame, low self-esteem, anxiety, sadness.” Turim asked, “How do you believe that
this trauma led to the murder of his parents?” The State objected, arguing that Mahabir was not
qualified to make that assessment. The court overruled the objection, but stated that he would
“consider her qualifications in how much weight I give the answer.” Mahabir testified that people
who experience trauma feel like their lives are in jeopardy. She explained that due to the severity
of the trauma experienced by the defendant and the fact that it continued throughout his entire
childhood, she believed that he just wanted the violence to stop and did not know how to make
that happen.
12
¶ 39 Mahabir further testified that the defendant had expressed “deep remorse” to her, which
she believed was authentic. She also testified that the corrections officers she interviewed believed
that the defendant was unlikely to reoffend.
¶ 40 On cross-examination, Mahabir was asked about the disciplinary infractions in the
defendant’s prison records, which were referenced in the mitigation report. She testified that there
were four infractions in 1996, three in 1997, and four in 1998. She acknowledged that she did not
describe in her report any of the underlying conduct that led to these infractions. She further
acknowledged that this would have been useful information because the seriousness of an
infraction was a relevant consideration. She testified that the defendant had no infractions after
2002.
¶ 41 Mahabir testified that the defendant reported to her that he had a loving relationship with
his mother, although she also noted that he never discussed the abuse with his mother. When asked
how the killing of his mother related to his mental state of wanting the violence to end, Mahabir
explained that the defendant himself was unsure of why he killed his mother. She noted that the
defendant described the incident to her “as happening in like five seconds.” She further stated, “I
don’t know if we’ve—if we would have had more time with Mark to unpack that.”
¶ 42 Mahabir acknowledged that in reviewing Richie Gibbs’s police reports, she did not find
any arrests for domestic violence. She further acknowledged that there were no investigations of
abuse in the Gibbs family by the Department of Children and Family Services. Finally, she
acknowledged that none of the defendant’s school records indicated that any teachers or other
school personnel observed any signs of physical abuse on the defendant. Asked if the defendant
indicated that he ever discussed the abuse with anyone, Mahabir testified that he told her he
13
confided about the abuse to his uncle, Gary Gibbs. As mentioned earlier, Gary denied that this
occurred.
¶ 43 The defendant also presented three letters of support from members of his mother’s family.
Betty’s sister, Donna Gibbs, 2 stated that Richie pushed Betty down a flight of stairs while she was
pregnant. She also alleged that there was ongoing violence in the marriage, but did not offer
specific examples. Another sister, Etha Anderson, stated that she saw the defendant with a black
eye on at least one occasion and that other family members had told her that they had seen both
Betty and the defendant with black eyes multiple times. Betty’s mother, Mary McWhorter, made
similar allegations concerning violence by Richie. She further stated that Betty left Richie once,
but that they later reconciled.
¶ 44 Prior to considering the parties’ arguments concerning the sentence, the court heard
arguments on the State’s motion to strike portions of the mitigation report. It is worth noting that
the court denied most of the State’s requests. The court, however, did strike some portions of the
report. For example, the court agreed to strike a portion of the background information stating that
Betty underwent a hysterectomy because she caught a sexually transmitted disease from Richie.
The court found that the allegation had no relevance. The court also struck the reference in the
report to one of Richie’s three arrest records because the State presented evidence that it had been
an invalid arrest. The court denied the State’s request to strike several photographs in the report
based on a lack of foundation, but noted that he did not find the photographs particularly relevant.
The court agreed to strike portions of a paragraph explaining the “danger assessment” tool, which
uses various criteria to measure the level of a danger an abusive partner poses. Included in the
stricken material was a sentence stating that Betty met five of those criteria. Notably, however, the
2
We note that Donna Gibbs’s ex-husband was one of Richie Gibbs’s cousins.
14
court did not strike the remainder of the paragraph, in which Mahabir and Flynn wrote that Betty
suffered severe abuse and that witnessing it “must have been deeply traumatizing” to the
defendant.
¶ 45 Most significantly, the court struck paragraphs in the mitigation report that discussed the
relationship between “complex trauma” and brain development. The basis for the court’s ruling
was the lack of evidence that Mahabir had any expertise in neurology. The stricken paragraphs
explained that those who experience complex trauma experience feelings of insecurity, have
difficulty forming attachment, and are at increased risk for antisocial behavior. We note that the
court refused to strike everything the State wanted stricken from this portion of the report. In
particular, the court did not strike language describing the defendant’s mental state and opining
that at the time of the murders, he “saw no way out.”
¶ 46 The parties presented arguments concerning the appropriate sentence, and the defendant
gave a statement in allocution. Before ruling, the court addressed “the lay people” in the courtroom,
explaining aspects of the proceedings. At one point, he referred to the “victims on this side.”
Although not stated directly, this was an apparent reference to the two sides of the defendant’s
family. The court went on to say:
“another reflection that I have made just from what I reviewed in these cases and heard
testimony in this case is that there was a day when this courtroom would not have been
divided in two. It is sad that it is, and I don’t know how to change it. I wish that I could,
but it sounds as though at one time there was, what I would refer to as just a great big,
wonderful country family. I may have personally experienced that myself. I do know how
tragedies and loss of loved ones can affect that, also.”
¶ 47 The court next provided a detailed ruling from the bench. The court began by stating,
15
“I want the record to reflect that I have considered all the relevant evidence at the
sentencing hearing, including, but not limited to, the mitigation report, the testimony of the
qualified expert, *** any other evidence solicited, and, not the least of which, which is
allowed even in the new statute, any other information that I found relevant and reliable.”
The court went on to note that he considered the PSI, the defendant’s statement in allocution, and
the statements of his family members.
¶ 48 The court first considered the statutory factors in aggravation and mitigation applicable to
both juvenile and adult defendants. In aggravation, the court found that the defendant’s conduct
caused serious harm in both cases (1989 Ill. Rev. Stat., ch. 38, ¶ 1005-5-3.2(a)(1)) and that there
was a need to deter others (id. ¶ 1005-5-3.2(a)(7)). The court did not elaborate further on either of
these factors. The court considered the State’s argument that the defendant received compensation
for the offense because he removed money from his father’s pocket (id. ¶ 1005-5-3.2(a)(2)). The
court stated, “I don’t know that I’m necessarily considering this as compensation for committing
the offense,” but noted “that could be a factor in aggravation.”
¶ 49 In addressing factors in mitigation, the court noted that the defendant had no criminal or
juvenile history (id. ¶ 1005-5-3.1(a)(7)). The court then turned his attention to two mitigating
factors that were emphasized by the defense in its arguments—that the defendant’s conduct was
induced by someone other than the defendant (id. ¶ 1005-5-3.1(a)(5)) and that the defendant’s
conduct was the result of strong provocation (id. ¶ 1005-5-3.1(a)(3)). The court found the first
factor to be inapplicable. The court then considered whether the allegations of abuse were
sufficient to constitute strong provocation. The court observed that there are many cases where a
parent stays with an abuser, but stated that he could not understand why a parent would not remove
herself and her children from that situation. The court then stated that the evidence showed that
16
“there [was] a belief” that both Betty and the defendant had been abused by Richie. The court went
on to state, “Unlike some of the others that I have seen in my career, that there was a time when
Betty had the strength to get up and leave, when Betty removed herself *** and her child from the
situation.” The judge stated that he did not understand why she went back to Richie “unless
something drastic changed.”
¶ 50 The court then considered the additional factors mandated under Illinois’s new youth
sentencing statute, section 5-4.5-105 of the Unified Code of Corrections. See 730 ILCS 5/5-4.5-
105 (West 2016). We note that, although the defendant opted to be sentenced under the law in
effect at the time of the offenses, the court considered these factors because they largely coincide
with the factors set forth in Miller.
¶ 51 In addressing these factors, the court noted that the defendant was 17 years old at the time
of the offenses, a chronological age near the upper end of the juvenile age range. See id. § 5-4.5-
105(a)(1). The court noted that the next factor to consider was the defendant's impetuosity. See id.
The court stated, “I’m not 100 percent sure what they mean by ‘impetuosity’.” However, the court
went to find that, based on the statements of family members and his observations of the defendant
in the courtroom, “I don’t know that among his cousins and among his family that he was the most
impetuous.” The court went on to consider the defendant’s maturity and competence. See id. The
court noted that the defendant was less mature than the average 17-year-old and that he had “some
difficulty with cognition” even though he was not diagnosed with any psychiatric disorder or
cognitive impairment.
¶ 52 The court next considered the defendant’s home life. See id. § 5-4.5-105(a)(3). The court
suggested that the defendant’s poor academic achievement and smaller physical size may have led
to a difficult home life because parents want their children “to be the biggest and the strongest and
17
the best sportsman and the best and the smartest in their class.” In addressing the allegations of
abuse, the court stated that it may be impossible to “know exactly what the relationship was
between Richie and Betty and the defendant, Mark.” The court stated, however, that it was difficult
to believe that none of the defendant’s aunts, uncles, cousins, or grandparents noticed any bruises.
The court further stated:
“Let’s say I believe that he was abused to the degree that he might be in some way justified
in committing some offense against his father and that I might be inclined to consider that
to the degree that I believe that I should change his sentence today. I’m saying right now,
I can’t get past the mother. I can’t get past, after having shot the father, that he went and
planted two bullets in Momma.”
¶ 53 The court found that the impact of peer pressure or familial pressure was inapplicable to
the circumstances of this case. See id. § 5-4.5-105(a)(2). The court noted that the defendant had
shown some evidence of rehabilitation during the 25 years he had been incarcerated, pointing to
the evidence that he had earned his general equivalency diploma (GED) and a culinary certificate.
See id. § 5-4.5-105(a)(4). In considering the defendant's role in the offense and his degree of
participation, the court emphasized that the defendant was the sole participant. See id. § 5-4.5-
105(a)(6). The court found that the defendant had no prior history of juvenile delinquency or
criminal convictions. See id. § 5-4.5-105(a)(8).
¶ 54 In discussing the circumstances of the offense (see id. § 5-4.5-105(a)(5)), the court found
it relevant that the defendant told his classmates earlier in the day that he intended to kill his
parents, that there was no indication of any altercation that evening, and that the defendant’s
parents were both asleep when he shot them. The court also considered the fact that the defendant
took money from his father, then “drove all the way into Jonesboro,” bought soda, and drove home
18
before calling anyone. The court explained that although the defendant may not have known that
his mother was still alive when he left the house, by the time he returned “he would have had to
have known *** that his mother was aspirating in her own blood.” The court emphasized that
despite this knowledge, the defendant did not call 9-1-1 or an ambulance, even anonymously. The
court stated, “I didn’t hear anyone put forth any evidence that when Uncle Gary or Cousin Pender
got to the place ***, he was fraught with emotion.” The court further noted that in his confession,
the defendant stated that he confessed because he knew he would be caught, not because he felt
remorse.
¶ 55 The court went on to consider additional factors. The court found that the crime was
premeditated. The court considered whether the defendant was provoked to act, noting that if the
abuse occurred, “then I can say that he was provoked to act against the father.” However, the court
then asked how much provocation was “enough,” noting the changing views towards corporal
punishment over the years. Ultimately, the court found that the killings were “too senseless” to be
considered the product of provocation.
¶ 56 The court found that the defendant showed no remorse in 1995 when he pled guilty.
Although at one point the court acknowledged that the defendant did express remorse by the time
of his resentencing hearing, the court also noted that he demonstrated a “coolness” in court.
¶ 57 The court also considered whether the defendant inflicted prolonged pain or torture. The
court stated that Betty’s knowledge that her son was the person who had shot her must have caused
her to suffer emotionally. In addition, the court stated, “I just can’t get past the fact that Betty was
left to aspirate in her own blood.”
¶ 58 The court concluded by expressly finding that the defendant’s conduct demonstrated
irretrievable depravity or permanent incorrigibility. In reaching this conclusion, the court
19
emphasized the defendant’s cool demeanor, the fact that he had no psychiatric diagnoses, and the
fact that the defendant had opportunities to escape the alleged abuse without killing his parents.
The court noted that the defendant had his own truck and that he had run away previously. The
court vacated the original sentences and imposed new sentences of natural life imprisonment, to
run concurrently.
¶ 59 On December 19, 2019, the defendant filed a motion to reconsider sentence. In pertinent
part, he asserted that (1) the court “required thorough qualification of Ms. Mahabir’s expertise in
the field of social work” even though the rules of evidence are relaxed at sentencing hearings;
(2) the court improperly struck portions of the mitigation report; (3) the court improperly injected
his personal views into his findings of fact; (4) the court improperly interjected faith and religion
into his findings; (5) the court inaccurately stated that some of the facts related to the circumstances
of the offense were uncontroverted when they were in dispute; (6) the court improperly considered
the statutory aggravating and mitigating factors set forth in sections 5-5-3.1 and 5-5-3.2 of the
Unified Code of Corrections (730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2016)); (7) the court improperly
weighed those factors against the mitigating factors applicable to juvenile defendants set forth in
section 5-4.5-105 (id. § 5-4.5-105); and (8) the court improperly considered a factor inherent in
the offense in aggravation. The motion was signed by attorney Sarah Sallen.
¶ 60 On February 21, 2020, the court held a hearing on the motion. Attorney Sallen and law
student Emily Komp appeared with the defendant. Komp informed the court, “We’ve spoken to
our client about the proceedings today, and at this time, we rest on our written motion.” The court
responded, “I cannot deny that after you sent the motion without noticing it up for hearing, that I
thought maybe you wanted the court to just rule on the motion. This court believes that this case
carries more gravity than doing it without a motion hearing.”
20
¶ 61 The prosecutor indicated that he had not expected to present oral arguments. However, he
went on to provide a summary of the arguments in the State’s written response to the defendant’s
motion.
¶ 62 The court then inquired, “I do want to go back to the defendant’s attorneys with regard to
paragraphs 37 and 38, and I would like a full clarification on *** what exactly the accusation is
about, regarding those two items.” We note that paragraphs 37 and 38 contained the allegations
that the court improperly interjected personal views, faith, and religion into his findings. Komp
replied, “Your Honor, I don’t have the complete transcript in front of me right now, and we are
resting on our written motion at this time.”
¶ 63 Before ruling on the motion, the court addressed those allegations, stating, “I am trying to
recall what personal views I may have interjected into the hearing.” The court took issue with this
characterization, but then acknowledged that “a judge should not be thin-skinned about a situation
like this.” The court next stated, “Faith and religion, I do remember with regard to personal views
and faith and religion that I noted about the defendant’s grandmother, who I observed throughout
the entire proceedings, *** that she took the whole situation as well as she was taking it.” The
court recalled that he stated at the hearing that it was difficult for him to understand how she could
forgive the defendant for killing her daughter and “that she may have reached Nirvana.” The court
explained that he used that term “as a generic term to mean someone who had reached some level
of perfection that none of us may be able to ever reach when it comes to love and forgiveness.”
¶ 64 The court denied the defendant’s motion to reconsider without providing further
elaboration. This appeal followed.
21
¶ 65 II. ANALYSIS
¶ 66 The defendant raises multiple issues. In challenging his sentences, he argues that (1) a
discretionary sentence of natural life in prison was not authorized under the statutes in effect when
he committed the murders; (2) the sentence violates Miller because the court did not adequately
consider the mitigating features of his youth; (3) the court misstated key pieces of evidence and
relied on these misstatements; (4) the court improperly relied on a factor inherent in the offense of
murder as a factor in aggravation; and (5) the trial judge substituted his personal beliefs for the
expert witness’s opinion and analysis. The defendant further argues that he received ineffective
assistance of counsel because (1) Ortiz and the law students who assisted him did not fully comply
with the requirements of Rule 711 and (2) he was prejudiced by their performance when one of
the supervising attorneys allowed one of the students to rest on the written motion to reconsider
sentence during the hearing on that motion.
¶ 67 Before addressing the merits of these contentions, we note that the State argues that many
of them are forfeited because the defendant either failed to raise them in his motion to reconsider
or raised them in a nonspecific manner. However, forfeiture is a limitation on the parties, not on
courts. People v. Sophanavong, 2020 IL 124337, ¶ 21. Here, the defendant has argued that he
received ineffective assistance of counsel, in part due to the failure of the defense team to preserve
these issues for our review. Because it is necessary to consider the validity of the underlying claims
to evaluate the defendant’s ineffective assistance of counsel argument and because the issues raised
in this appeal are important, we choose to address all the defendant’s claims on their merits.
¶ 68 A. Statutory Authority for the Natural Life Sentence
¶ 69 The defendant first asserts that the court erred in sentencing him to natural life in prison
because there was no statutory authority for that sentence. We disagree.
22
¶ 70 Before discussing the defendant’s specific contentions, a brief overview of the pertinent
statutory provisions will be helpful. As stated earlier, the defendant chose to be sentenced under
the laws in effect in 1992, when he committed the offenses. As we also discussed earlier, a sentence
of natural life in prison was mandatory under the applicable statute for defendants convicted of
murdering more than one individual. 1989 Ill. Rev. Stat., ch. 38, ¶ 1005-8-1(a)(1)(c). A sentence
of natural life was also mandatory for defendants who were adjudicated as habitual criminals. Id.¶ 1005-8-1(a)(2). A discretionary sentence of natural life was authorized if the court found that the
murder was accompanied by brutal and heinous conduct indicative of wanton cruelty or if any of
the aggravating factors for imposition of the death penalty were present. Id. ¶ 1005-8-1(a)(1)(b).
Those factors included a conviction for murdering multiple victims (id. ¶ 9-1(b)(3)) or a finding
that the murder was “committed in a cold, calculated and premeditated manner pursuant to a
preconceived plan” (id. ¶ 9-1(b)(10)).
¶ 71 The defendant argues that none of these provisions authorizing a mandatory or
discretionary life sentence were applicable to him. He correctly points out that he was not
adjudicated a habitual criminal, thereby making section 1005-8-1(a)(2) inapplicable. He further
argues that section 1005-8-1(a)(1)(c), mandating a natural life sentence for a defendant who kills
more than one victim, was made inapplicable to juvenile defendants by Miller. Similarly, the
defendant contends that because section 9-1(b) expressly applied only to a defendant who had
reached the age of 18 at the time of the offense, he could not be sentenced to natural life in prison
under section 1005-8-1(a)(1)(b) based on the presence of the aggravating factors listed in section
9-1(b). Finally, the defendant argues that he also could not be sentenced to a discretionary natural
life sentence under section 1005-8-1(a)(1)(b) based on a finding that the murder was accompanied
23
by exceptionally brutal behavior indicative of wanton cruelty because the court never explicitly
made that finding. We are not persuaded.
¶ 72 We first consider the defendant's argument that Miller made section 1005-8-1(a)(1)(c),
mandating natural life in prison for defendants convicted of multiple murders, inapplicable to him
because he was a juvenile when he killed his parents. The Miller Court discussed at length the
need for sentencing courts to be able to consider the mitigating characteristics of youth before
sentencing a juvenile murder defendant to natural life in prison without the possibility of parole.
See Miller, 567 U.S. at 473-79, 489. In Montgomery v. Louisiana, the Court held that Miller
announced a substantive rule of constitutional law that must be applied retroactively. Montgomery
v. Louisiana, 577 U.S. 190, 212 (2016). The Court further held that converting a life sentence
without the possibility of parole to a life sentence with the possibility of parole is sufficient to
remedy a Miller violation retroactively. Id. Illinois courts generally require a remand for
resentencing. See, e.g., People v. Buffer, 2019 IL 122327, ¶ 49; People v. Davis, 2014 IL 115595,
¶ 43. However, the Montgomery Court’s holding—which allows juveniles to remain sentenced
under statutes like the one at issue here—indicates that the constitutional flaw lies not with
application of the underlying sentencing statutes, but rather, with their mandatory effect. See also
Davis, 2014 IL 115595, ¶ 43 (emphasizing that “Miller does not invalidate the penalty of natural
life without parole for multiple murders, only its mandatory imposition on juveniles” (emphasis
in original)). For these reasons, we find that section 1005-8-1(a)(1)(c) provided statutory authority
for the defendant’s natural life sentence even though its application to him could not be mandatory.
¶ 73 We next consider the defendant’s contention that he could not be sentenced to a
discretionary sentence of natural life in prison based on the presence of death penalty factors. We
disagree for two reasons.
24
¶ 74 First, the express terms of the two statutory provisions lead us to this conclusion. Section
9-1(b), the provision containing the aggravating factors for the death penalty, stated as follows: “A
defendant who at the time of the commission of the offense has attained the age of 18 or more and
who has been found guilty of first degree murder may be sentenced to death if” any of the
aggravating factors set forth in the statute were present. 1989 Ill. Rev. Stat., ch. 38, ¶ 9-1(b).
Section 1005-8-1(a)(1)(b), by its express terms, provided that “if the court finds that *** any of
the aggravating factors listed in subsection (b) of Section 9-1 of the Criminal Code of 1961 are
present, the court may sentence the defendant to natural life imprisonment.” Id. ¶ 1005-8-
1(a)(1)(b). The statute did not contain any provisions limiting its application to adult defendants.
Thus, reading the two statutes together, it is clear that while section 9-1(b) limited the imposition
of the death penalty to defendants who were adults when they committed the offenses at issue, no
such restriction applied to the imposition of natural life sentences based on the same aggravating
factors.
¶ 75 Second, as the defendant acknowledges, two Illinois cases have interpreted these statutes
as authorizing discretionary life sentences based on the death penalty factors for juvenile
defendants. See People v. Abernathy, 189 Ill. App. 3d 292, 316-17 (1989); People v. Walker, 136
Ill. App. 3d 177, 181-82 (1985). He argues, however, that these cases are distinguishable because
the sentencing courts there expressly found that the murders were accompanied by exceptionally
brutal behavior indicative of wanton cruelty, which provided an independent basis for the
sentences that does not exist in this case. See Abernathy, 189 Ill. App. 3d at 316; Walker, 136 Ill.
App. 3d at 182. We note parenthetically, that although the court did find that the defendant caused
prolonged suffering to his mother, Betty, the court did not expressly find that the murders were
25
accompanied by exceptionally brutal conduct indicative of wanton cruelty. We find the
defendant’s argument unavailing.
¶ 76 In Abernathy, the defendant was convicted of murder, aggravated criminal sexual assault,
and armed robbery. Abernathy, 189 Ill. App. 3d at 295. He was 17 years old when he committed
the offenses at issue. Id. at 317. The trial court expressly found that the murder was accompanied
by brutal conduct indicative of wanton cruelty. Id. at 316. On appeal, the defendant argued that the
court erred in sentencing him to natural life in prison. Id. at 315. In rejecting this claim, the
appellate court first considered the interplay between the two statutes at issue in this case. The
court explained that because one of the aggravating factors listed in section 9-1(b) was that the
murder took place during the commission of another felony, the natural life sentence was
authorized by section 1005-8-1(a)(1)(b). Id. Only after reaching this conclusion did the court go
on to state that the trial court’s finding of brutal behavior indicative of wanton cruelty provided
“another basis for imposition of a life sentence.” (Emphasis added.) Id.
¶ 77 Walker likewise involved a murder committed during the course of another felony and a
finding of exceptionally brutal conduct indicative of wanton cruelty. Walker, 136 Ill. App. 3d at
182. There, the defendant raised the precise argument the defendant raises here. That is, he argued
that the trial court was required to find that he was at least 18 years old at the time of the murder
before it could consider whether any of the death penalty factors were present. Id. The appellate
court rejected this argument, explaining that no “age requirement has been provided for the
imposition of a life sentence.” Id. Thus, we find no support for the distinction the defendant asks
us to draw. For these reasons, we conclude that the defendant’s sentence was authorized by statute.
26
¶ 78 B. Compliance With Miller
¶ 79 The defendant next contends that, although the court held a resentencing hearing, its
decision to impose a sentence of natural life in prison does not comport with the requirements of
Miller. We are not persuaded.
¶ 80 In People v. Holman, 2017 IL 120655, the Illinois Supreme Court considered the question
of how best to implement the Miller holding in Illinois. The Holman court held that sentencing
courts must specifically consider a series of factors associated with youth that have come to be
known as the “Miller factors.” Id. ¶¶ 42-44. Those factors include (1) the defendant’s
chronological age at the time of the offense along with any evidence that he was particularly
immature, impetuous, or unable to appreciate risks and consequences; (2) the defendant’s family
and his home environment; (3) the degree of the defendant’s participation in the offense and any
evidence that peer pressure or familial pressure played a role; (4) the extent to which the defendant
was unable to deal with police and prosecutors and any limitations on his capacity to assist his
attorneys; and (5) the defendant’s potential for rehabilitation. Id. ¶ 46 (citing Miller, 567 U.S. at
477-78). Our legislature has enacted section 5-4.5-105 of the Unified Code of Corrections, which
mandates that courts sentencing juvenile defendants consider these and other factors in addition to
the factors applicable to all defendants. 730 ILCS 5/5-4.5-105(a) (West 2016).
¶ 81 As we have already discussed at length, the court heard substantial evidence concerning
these factors, and the court expressly addressed them in its detailed ruling from the bench. The
defendant acknowledges as much, and he further acknowledges that the court expressly found his
conduct to have been the result of irretrievable depravity and permanent incorrigibility. The
defendant argues, however, that the court failed to fully appreciate the “uniquely mitigating”
circumstances of his youth, his impetuosity, and his family and home environment. He further
27
argues that in light of these circumstances and the evidence of rehabilitation in the years since he
committed the offense, his crime “reflects transient immaturity,” and the natural life sentence
imposed by the court is thus unconstitutional under Miller and its progeny. See Montgomery, 577
U.S. at 211. We disagree.
¶ 82 We first observe that there was conflicting evidence concerning the defendant’s home
life—particularly the extent of any abuse that occurred. Both Gary Gibbs and Bradley Pender
testified that they spent a significant amount of time with the defendant throughout his childhood
and that they never witnessed any abuse or saw signs of injuries. Similarly, there was conflicting
evidence concerning the defendant’s level of maturity and competence. While there was some
evidence that the defendant was less mature than the average 17-year-old and did poorly in school,
there was also evidence that he had never been diagnosed with any psychological disorders or
developmental disabilities.
¶ 83 The defendant complains that the court found that he was no more impetuous than his
cousins, based partly on the court’s observations of the defendant in the courtroom. He correctly
notes that the question was his impetuosity in 1992 at the age of 17, not his impetuosity in 2019
as a middle-aged man. However, the court also based this finding on the statements of the
defendant’s family members about his youth. Moreover, there is nothing in the record to indicate
that the defendant was particularly impetuous when he decided to kill his parents. Significantly,
his own account of the events in his statement to police contains evidence of premeditation. The
defendant told Nagle and Patterson that he “had decided to kill [his] parents” due to his fear of
getting in trouble over his grades. Although he did not specify when he made that decision, he
gave an account that included methodical preparations such as doing laundry, packing to run away,
retrieving his father’s gun, obtaining ammunition, and loading the gun. He also described taking
28
calculated steps after the shootings to make it appear that his parents were shot while he was away
from the house.
¶ 84 The evidence concerning the defendant’s rehabilitative potential likewise cut both ways.
As the court recognized, there was some evidence that the defendant eventually expressed remorse
for his crimes, and there was evidence that he had made some efforts at rehabilitation by obtaining
his GED and a culinary certificate while in prison. However, the court was free to weigh these
factors against his observation of the defendant’s cool demeanor, the evidence that the defendant
incurred many infractions during his first decade in prison, and the circumstances surrounding the
offenses. Miller requires that courts consider evidence concerning the mitigating features of youth.
Although we emphasize that courts must give serious consideration to this evidence and may not
simply pay it lip service, the record in this case indicates that the court carefully considered
significant evidence concerning the Miller factors.
¶ 85 C. Misstatements of the Facts
¶ 86 The defendant next argues that the court erroneously relied on misstatements of the facts
surrounding the offenses. We will consider each of the misstatements he contends that court made.
¶ 87 First, the defendant points to the court’s finding that the defendant caused prolonged
suffering to his mother, Betty, both because she was left to aspirate in her own blood and because
it must have caused her emotional pain to know that her son had shot her. He notes that the autopsy
report indicates that Betty was likely rendered unconscious immediately by the shots and remained
comatose throughout her hospital stay. He contends that this evidence shows that she was never
aware that her son shot her, thus contradicting the court’s finding that she experienced emotional
pain. He further argues that there was no evidence that Betty felt any physical pain. The defendant
also challenges the court’s related finding that he was indifferent to his mother’s suffering. He
29
asserts that he called his uncle, Gary, as soon as he discovered that his mother was still breathing,
and he argues that this was a course of action chosen because of his “age, lack of maturity, learning
difficulties, and very poor problem-solving skills.” We are not persuaded.
¶ 88 We acknowledge that the court’s comments regarding Betty’s mental suffering were
speculative at best. However, we find that the record contained evidence to support the finding
that she suffered physically and the finding that the defendant acted with indifference to that
suffering. Gary Gibbs testified that he saw Betty trying to breathe and “blowing bubbles in her
own blood.” Pender likewise testified to seeing Betty trying to breathe. The defendant told police
that at some point after returning home he noticed that his mother was still breathing. Contrary to
the defendant’s argument, he did not tell police that he called his uncle immediately after noticing
that Betty was breathing. Rather than calling 9-1-1 for immediate assistance, he called his uncle.
Moreover, rather than staying with his mother and attempting to render aid or comfort, he waited
outside. This evidence was sufficient to support the court’s findings.
¶ 89 The defendant next complains that the court erroneously stated that there was no evidence
that the defendant was “fraught with emotion” when Gary Gibbs or Bradley Pender arrived at the
house. At the resentencing hearing, Pender described the defendant as “slumped over” and “kind
of crying.” This description indicates some distress, but not that the defendant was “fraught with
emotion.” At the hearing on the motion to suppress, Nagle described the defendant’s emotional
state as “nervous” but not “physically upset” and not crying. It is also worth reiterating that the
defendant went through a series of steps in an effort to—in the defendant’s own words—“hide
what [he] did to [his] parents.”
¶ 90 Finally, the defendant complains that the court referred to the “undisputed fact” that the
defendant told two classmates about the murder earlier in the day. As we discussed earlier, this
30
was presented as part of the factual basis for the defendant’s plea. The defendant argues that the
court erred in referring to it as an “undisputed fact” because he did, in fact, dispute it. We disagree.
Although the defendant told Mahabir in 2019 that he did not remember telling any of his classmates
about his plan to kill his parents 27 years earlier, he did not affirmatively deny doing so. In any
case, we believe the defendant’s own account of the events leading up to the shooting amply
supported the court’s finding of premeditation for the reasons we discussed earlier.
¶ 91 D. Factor Inherent in the Offense
¶ 92 The defendant next argues that the court considered a factor inherent in the offense as a
factor in aggravation. As we stated earlier, the court explicitly found that the defendant’s conduct
caused harm. Because death is a necessary element of the offense of murder, harm to the victim is
inherent in the offense. As the defendant correctly contends, a sentencing court may not consider
a factor that is inherent in the offense as a factor in aggravation. People v. Spicer, 379 Ill. App. 3d
441, 467 (2007). Consideration of such factors constitutes a double enhancement because the
legislature already took those factors into account when it decided upon the sentencing range for
the offense. See People v. Raney, 2014 IL App (4th) 130551, ¶ 34. However, reversal is not
warranted if we can discern from the record that the improper factor played an insignificant role
in the court’s decision and did not result in a harsher sentence than the court otherwise would have
imposed. People v. Brown, 2019 IL App (5th) 160329, ¶ 19. Here, we do not believe reversal is
required. The court provided a lengthy and detailed explanation of findings in ruling from the
bench. While this factor was mentioned, the court did not focus on it or elaborate. It is also worth
reiterating that the basis for imposing a natural life sentence was the fact that the defendant killed
more than one individual, not the general aggravating factors.
31
¶ 93 E. Substitution of the Judge’s Views for the Expert’s Opinions
¶ 94 The defendant next contends that the trial judge abused his discretion by substituting his
personal opinions and beliefs for the expert analysis offered by the defendant’s expert witness. We
disagree.
¶ 95 We first emphasize that the court did not wholly reject the opinions and analysis provided
by the defendant’s expert witness in her testimony and in the mitigation report. As discussed
earlier, the court refused to strike portions of the mitigation report opining as to the effects of the
abuse on the defendant’s state of mind even though the court agreed to strike portions addressing
the effects of long-term abuse on adolescent brain development. Mahabir specifically testified that
she was not qualified to diagnose the defendant. Other portions of the report were stricken because
the court found them to be irrelevant. We review these evidentiary rulings for an abuse of the trial
court’s discretion. We will not find an abuse of discretion unless we find the court’s decisions to
be “arbitrary, fanciful or unreasonable, or where no reasonable person would take the view adopted
by the trial court.” People v. Chambers, 2011 IL App (3d) 090949, ¶ 10. Applying this standard,
we find no abuse of discretion.
¶ 96 It is important to reiterate that the court accepted Mahabir as an expert in social work. The
defendant argues that the court’s questioning of Mahabir about her qualifications was “alarming”
and showed that the court did not understand her field of expertise. The defendant points to two
questions asked by the court in ascertaining Mahabir’s qualifications. As discussed earlier, in
asking about the qualifications for the position of forensic social worker, the court asked Mahabir
if she received specialized training where she earned a certificate that she could “hang on the wall
or put in [her] scrapbook,” and in asking whether that job title was unique to Mahabir’s workplace,
32
the court offered the following analogy: “you can work for Hyatt Regency and be called an ‘events
specialist manager’ but you’re a party planner.” We reject the defendant’s claim.
¶ 97 While we acknowledge the dismissive tone in the phrasing of these questions, we believe
the defendant takes them out of context. As we discussed earlier, the court questioned Mahabir
about whether her job title was unique to her workplace or a position that any social worker can
have. She explained that it was a recognized title within the field of social work, and the court
accepted her answer. Read in context, we find that the court’s reference to the position of “party
planner” was nothing more than an analogy to clarify the question. As we also discussed earlier,
the court questioned Mahabir about the specific training she underwent to become a forensic social
worker and mitigation worker. She stated that the only training required was that needed to become
licensed as a social worker. Again, the court’s question regarding the requirement of specialized
training could have been worded more artfully, but the witness clearly understood the question as
simply asking about her specific training. We believe that the defendant’s assertion that the court
required Mahabir to prove her credentials with a scrapbook mischaracterizes the exchange. We
find no abuse of discretion in the court’s ruling. See Doe v. Chand, 335 Ill. App. 3d 809, 821
(2002) (explaining that trial court rulings on an expert witness’s qualifications are reviewed under
the abuse of discretion standard).
¶ 98 The defendant next contends that the court erroneously relied on his own personal opinions,
including “myths about domestic violence.” As an example, the defendant points to the judge’s
comments concerning cases he had seen involving “battered families” in which a mother stayed
with an abusive father. The court stated, “I cannot wrap my mind around it,” that “it defies all
logic,” and that there “must be some psychology that causes a parent” to stay with an abusive
33
spouse. The court also stated that it is a “paradox” that Betty left Richie, but later reconciled with
him.
¶ 99 It is important to recognize that these comments indicate that the court was well aware that
abused spouses often stay with their abusers—something the trial judge noted he had seen many
times. More importantly, however, we must reiterate that the court was presented with conflicting
evidence as to the existence and extent of the abuse. As we mentioned earlier, Mahabir and Flynn
relied on interviews with the defendant and three members of his mother’s family. Members of the
defendant’s father’s family vehemently denied the allegations of abuse, and the picture of
pervasive abuse painted by the defendant in his interviews with Mahabir and Flynn was at odds
with the testimony of Gary Gibbs and Bradley Pender that they never saw the defendant with
injuries indicative of abuse. The court, as finder of fact, was not required to accept the defendant’s
version of events.
¶ 100 The defendant also complains that the trial judge “repeatedly analogized to his own life”
in ruling from the bench. He first points to the statement the judge made prior to ruling, in which
he observed that “at one time” the defendant’s family appeared to be “a great big, wonderful
country family,” something the judge noted he may have “personally experienced.” As we
discussed earlier, however, this statement was made before the court began ruling, and it addressed
the rift between Betty’s side of the family and Richie’s side of the family. The defendant also
points to statements the judge made concerning evidence that the defendant once ran away from
home and evidence that he occasionally did not want to return home from his grandparents’ house.
The defendant also highlights the court’s statements concerning attitudes towards corporal
punishment in the 1960s and 1970s. Courts must base their decisions on the evidence before them
rather than on “private investigation *** or *** private knowledge.” (Internal quotation marks
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omitted.) People v. Dameron, 196 Ill. 2d 156, 171-72 (2001). However, sentencing judges are not
required to ignore or refrain from commenting on their own background and experience. “Indeed,
it is precisely that experience that grounds the decision in a particular case in the value system of
the community.” People v. Tye, 141 Ill. 2d 1, 23 (1990). These isolated comments and illustrations
from the court’s lengthy and detailed explanation of the sentencing decision do not demonstrate
that the court considered improper evidence or ignored the defendant's expert witness’s analysis.
¶ 101 Finally, the defendant points to the court’s statements that he could not understand how the
defendant’s maternal grandmother could forgive the defendant for killing her daughter. We do not
believe this statement had any bearing on the court’s ruling.
¶ 102 F. Failure to Comply With Rule 711
¶ 103 The defendant next argues that he was denied the effective assistance of counsel because
the law students representing him failed to comply with the requirements of Rule 711 in three
ways. First, Margaret Shadid was permitted to make arguments on his behalf before she was
licensed under Rule 711. The defendant correctly points out that because she did not yet have her
license, she was not authorized to provide legal services. See Ill. S. Ct. R. 711(e)(1). Second,
although the defendant confirmed on the record that he understood that the law students on his
legal team were not lawyers and that he agreed to allow them to represent him, no written consent
to their representation was filed with the court. See Ill. S. Ct. R. 711(c)(2)(i). Written consent must
be obtained and filed with the court before a student is authorized to perform legal services under
Rule 711. In re Denzel W., 237 Ill. 2d 285, 294 (2010). Finally, two of the students, Michael
Podgurski and Emily Komp, appeared for the defendant at a telephonic status conference.
Although they were supervised by their professor, Hugh Mundy, Mundy is not licensed to practice
law in Illinois, and lead counsel Damian Ortiz was not present at that conference. See Ill. S. Ct. R.
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711(c)(2)(iii) (mandating that in cases involving a possible prison sentence, students certified
under Rule 711 may only make arguments if supervised by a licensed attorney who is present).
¶ 104 Noncompliance with Rule 711 is significant because the sixth amendment right to the
assistance of counsel requires representation by “ ‘a duly licensed and qualified attorney.’ ” Denzel
W., 237 Ill. 2d at 296 (quoting People v. Cox, 12 Ill. 2d 265, 269 (1957)). Although law students
may be authorized to perform legal services under Rule 711, a student who does not comply with
the requirements of the rule is not “counsel” for purposes of the constitutional right to counsel. Id.If a defendant is not provided with counsel during a critical stage of criminal proceedings, he need
not demonstrate prejudice to be entitled to reversal. People v. Vernon, 396 Ill. App. 3d 145, 152-
53 (2009). Put differently, the two-pronged Strickland test (see Strickland v. Washington, 466 U.S.
668 (1984)) applies only where a defendant is, in fact, represented by counsel. People v. Gamino,
2012 IL App (1st) 101077, ¶ 16. Because the right to counsel includes the right to be represented
by a qualified attorney, when a defendant is represented by an unlicensed or unqualified attorney,
he “has not been provided with ‘counsel’ as defined by our supreme court and, consequently, a
Strickland analysis is inappropriate.” Id.¶ 105 The defendant contends that, because the law students representing him failed to comply
with the requirements of the rule, they were not “counsel” for sixth amendment purposes. He
further contends that, as a result, he was completely deprived of the assistance of counsel and is
therefore entitled to the reversal of his sentence without having to meet the requirements of
Strickland. We reject this claim.
¶ 106 In Denzel W., our supreme court held that, as we have just discussed, a law student who
fails to comply with the requirements of Rule 711 does not qualify as “counsel” for purposes of
the sixth amendment right to counsel. Denzel W., 237 Ill. 2d at 296. The court stated, however,
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that this fact alone does not end the inquiry. Id. There, as here, the defendants “were not
represented by law students alone”; they were also represented by licensed attorneys who were
“actively involved” in representing the defendants. Id. at 296-97. The court explained that “[t]he
presence of the licensed attorney, who certainly is counsel for constitutional purposes, is not
somehow ‘canceled out’ by the law student’s participation, even if the law student has not
complied with Rule 711.” Id. at 297. The court therefore held that if a student is properly
supervised by an attorney who “remains responsible for the representation, as Rule 711 requires,”
the defendant has not been denied his sixth amendment right to counsel. Id. at 297-98.
¶ 107 The supreme court qualified this holding in two important respects. First, the court
emphasized that “where the defendant is entitled to counsel but the 711 law student appears alone
in violation of the rule, the defendant clearly has been denied counsel.” Id. at 298. Second, even
where the supervising attorney is present in court as required, he or she “does not satisfy his or her
obligation under Rule 711 merely by being physically present.” Id. Instead, the supreme court held
that “where the attorney’s supervision of a 711 law student is insufficient in quality, nature, or
duration,” his or her representation may amount to ineffective assistance of counsel under the
Strickland test. Id. The court further explained that, in such cases, “the supervising attorney’s
performance must be evaluated as a whole under Strickland.” Id. at 299.
¶ 108 With these principles in mind, we turn our attention to the defendant’s allegations
concerning the representation he received from the 711 students in this case. We will first consider
his claim that Podgurski and Komp represented him without supervision by a licensed attorney
during a telephonic status conference.
¶ 109 We note that the record does not contain either a transcript or bystanders report of the
conference. However, we are able to glean information about what occurred through an October
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7, 2019, motion filed by attorney Ortiz and an October 10, 2019, motion hearing. In Ortiz’s motion,
he alleged that he had been unable to participate in the telephonic status hearing on September 27,
during which the defense made an oral motion to continue the resentencing hearing to provide
more time for the mitigation experts to conduct their investigation. Ortiz further alleged that the
court directed the defense to file a written motion to continue, which they filed later that day, and
that the court set the motion to continue for a hearing on October 10. Ortiz alleged that he was not
available on October 10 and that Mundy was “not a clinician or otherwise able to supervise the
students in open court.” The motion therefore requested either a one-week continuance of the
October 10 hearing or, alternatively, that Ortiz be permitted to appear by videoconferencing.
¶ 110 However, Ortiz did appear in court for the hearing on October 10, along with Podgurski,
Komp, and Mundy. Although an additional attorney, Sarah Sallen, later appeared on behalf of the
defendant, Ortiz indicated at the hearing that he and Mundy were the only attorneys working on
the defendant’s case with the Pro Bono Clinic, and Mundy told the court that he supervised the
students during the September 27 telephonic status hearing. After hearing arguments on the motion
to continue the resentencing hearing, the court denied it. The court stated that the mitigation experts
had sufficient time to conduct their investigation and prepare their report.
¶ 111 The defendant is correct that he did not have the assistance of counsel during the telephonic
status hearing. Rule 711 provides that “in proceedings challenging sentences of imprisonment, ***
the student *** may participate in pretrial, trial, and posttrial proceedings as an assistant of the
supervising member of the bar, who shall be present and responsible for the conduct of the
proceedings.” Ill. S. Ct. R. 711(c)(2)(iii). The students were not supervised by a member of the
Illinois bar who was present during the call. It is important to emphasize, however, that the sixth
amendment guarantees the right to counsel only at all critical stages of the proceedings. See
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Vernon, 396 Ill. App. 3d at 153. A critical stage is one where the defendant may waive or assert
constitutional rights (People v. Lindsey, 201 Ill. 2d 45, 56 (2002)) or where the “ ‘substantial rights
of a criminal accused may be affected’ ” (Vernon, 396 Ill. App. 3d at 153 (quoting Mempa v. Rhay,
389 U.S. 128, 134 (1967))). The defendant argues that the status hearing was a critical stage “where
counsel attempted to address the key issue of additional time to complete the mitigation
investigation.” However, the status hearing did not provide an opportunity for the defendant to
assert or waive any constitutional rights and the court did not make any substantive rulings. Even
if we were to accept the defendant’s implicit contention that a motion for a continuance can be
deemed a substantive ruling that affected constitutional rights, the court did not hear arguments or
rule on that motion until a later, in-person hearing at which Ortiz—a licensed attorney—was
present. We thus reject the defendant's contention that Ortiz’s failure to participate in the
telephonic status hearing requires reversal.
¶ 112 We next consider the defendant’s arguments concerning the lack of written consent and the
fact that Shadid was permitted to present arguments on his behalf prior to being certified under
Rule 711. The defendant acknowledges that, as we have already discussed, failure to obtain and
file his written consent with the court does not amount to a per se denial of the right to counsel.
See Denzel W., 237 Ill. 2d at 299. He argues, however, that he is not required to demonstrate
prejudice or satisfy the Strickland test because Ortiz’s “failure to comply with Rule 711 in multiple
ways in multiple proceedings denied [the defendant] his right to counsel.” We disagree. Our
supreme court has specifically held that Strickland provides the proper framework for evaluating
the performance of an attorney supervising law students. Id. We will therefore consider his claims
under that test.
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¶ 113 G. Ineffective Assistance of Counsel
¶ 114 Under Strickland, a defendant must show both that counsel’s performance was deficient
and that he suffered prejudice as a result. Strickland, 466 U.S. at 687. To satisfy the first
requirement, he must demonstrate that counsel’s representation “fell below an objective standard
of reasonableness.” Id. at 687-88. To satisfy the second requirement, the defendant must establish
prejudice, which requires him to demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.Because a defendant must satisfy both parts of the Strickland test, we may resolve claims of
ineffective assistance based solely on a defendant’s failure to demonstrate prejudice. People v.
Haynes, 192 Ill. 2d 437, 473 (2000). Applying these principles, we reject the defendant’s
contention that he received ineffective assistance from Ortiz, Sallen, and the students who assisted
them in representing him.
¶ 115 The defendant argues that he was prejudiced by Ortiz’s “lackluster supervision.” He cites
various examples, asserting that the defense failed to present testimony at the resentencing hearing
from potential witnesses referenced in a report attached to the postconviction petition; that Ortiz
failed to ensure that the 711 students supported their oral arguments with citations to applicable
law on one occasion; and that he allowed “another attorney [Sallen] who had not previously
appeared with [the defendant] to file the non-specific motion to reconsider sentence and appear at
the hearing on that motion where she failed to properly supervise the student” who presented
arguments. Apart from his contention regarding the motion to reconsider sentence, the defendant
does not explain how he was prejudiced by any of these asserted inadequacies in Ortiz’s
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performance. Thus, we need not address those assertions. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1,
2020).
¶ 116 The defendant argues that the handling of the motion to reconsider his sentence was
prejudicial because the written motion was so lacking in factual detail that it was insufficient to
preserve his claims of error for appellate review. See People v. Brasseaux, 254 Ill. App. 3d 283,
290 (1996). He further argues that because the written motion was inadequate, it was important
that the student arguing on his behalf at the hearing to do more than stand on the written motion,
particularly “where the trial court directly asked the defense to clarify their contentions of error.”
He contends that it was also incumbent upon the supervising attorney to correct the error.
¶ 117 We agree with the defendant that the written motion was inadequate due to the lack of
specificity in most of its allegations. Although we note that the court’s question appeared to be a
reaction to the accusation that he had interjected personal beliefs and religion into the hearing
rather than a general request for clarification of the issues, we also agree that failing to provide
additional argument at the hearing was problematic. However, this court has considered the claims
of error raised in the defendant’s motion to reconsider that he also raised in this appeal, and we
have found them to be without merit. Because the arguments lacked merit, we find that the
defendant has failed to establish prejudice as required under Strickland. For these reasons, we
reject both his claim of ineffective assistance of counsel and his claim that he was wholly denied
the assistance of counsel due to the defense team’s failure to comply with Rule 711.
¶ 118 We wish to emphasize that, although we reject the defendant’s claims concerning his
representation, we do not condone the defense team’s multiple violations of the requirements of
Rule 711. Illinois Supreme Court rules have the force of law and are not merely suggestions.
People v. Houston, 226 Ill. 2d 135, 152 (2007). Compliance with these requirements is important.
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Id. As our supreme court has emphasized, “it is incumbent upon” licensed attorneys who allow
law students to assist them pursuant to Rule 711 to ensure that the students comply with the
requirements of all applicable supreme court rules, including Rule 711. Denzel W., 237 Ill. 2d at
293-94. Although we are troubled by counsel’s failure to ensure compliance in this case, we
nevertheless affirm the court’s sentence pursuant to Denzel W. because the defendant was not
wholly deprived of the assistance of counsel at any critical stage of the proceedings and he has
failed to satisfy the Strickland test, as required.
¶ 119 III. CONCLUSION
¶ 120 For the foregoing reasons, we affirm the judgment of the trial court sentencing the
defendant to natural life in prison.
¶ 121 Affirmed.
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