People v. Rodriguez

2018 IL App (1st) 141379-BFIRST DIVISION
June 4, 2018
No. 1-14-1379
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 21347
)
SEBASTIAN RODRIGUEZ, ) Honorable
) Michael J. Howlett, Jr. and
Defendant-Appellant. ) Neera L. Walsh,
) Judges Presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.
Justice Harris concurred in the judgment and opinion.
Justice Mikva dissented in part, with opinion.
OPINION
¶1 This case is before us on remand from a supervisory order of our supreme court. Fifteen­
year-old Sebastian Rodriguez was charged with first degree murder in connection with the
shooting of thirteen-year-old Sameere Conn on October 1, 2008. At the time of the offense, 15­
year-old defendants charged with first degree murder were automatically excluded from juvenile
court jurisdiction. Sebastian was tried, convicted, and sentenced as an adult in criminal court.
After a jury found Sebastian guilty of murder, the circuit court sentenced him to 50 years in
prison: 25 years for the murder and 25 additional years pursuant to a then-mandatory firearm
enhancement.
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¶2 In this direct appeal, Sebastian argued that (1) the circuit court erroneously denied his
motion to suppress evidence found during a search of his home, (2) expert testimony identifying
a revolver found in his home as the murder weapon was improperly admitted without a hearing
to determine if it was based on generally accepted scientific methodologies, and (3) a 50-year
sentence for an offender who was 15 years old at the time of his offense was unconstitutional.
¶3 Shortly after Sebastian filed his notice of appeal, the Illinois legislature raised the age of
automatic transfer from juvenile court to criminal court for defendants charged with first degree
murder from 15 to 16 years of age (see Pub. Act 99-258, § 5 (eff. Jan. 1, 2016) (amending
section 5-130(1)(a) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5­
130(1)(a)))). The legislature also adopted additional sentencing guidelines for defendants who
were under the age of 18 at the time of their offenses and who were tried as adults, including
making firearm enhancements discretionary, rather than mandatory (see Pub. Act 99-69, § 10
(eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016)
(adding 730 ILCS 5/5-4.5-105)). In supplemental briefing, Sebastian argued that these
amendments should apply to his case, pending on appeal.
¶4 In our initial opinion, issued on May 8, 2017, we agreed with Sebastian that the
amendment increasing the minimum age for mandatory transfer to criminal court applied to
cases, like his, that were pending on appeal when the amendment took effect. We affirmed the
jury’s guilty verdict for first degree murder, vacated Sebastian’s sentence, and remanded this
matter to the juvenile court for resentencing. The State sought review of that decision by the
Illinois Supreme Court. Six months later, our supreme court decided, in People v. Hunter, 2017
IL 121306, ¶¶ 36, 43, that the amendment to the automatic transfer provision applied only to
cases that were pending in the circuit court when the amendment took effect, but not to those
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cases pending on appeal. Accordingly, on January 18, 2018, the supreme court issued a
supervisory order in which it denied the State’s petition for leave to appeal but directed us to
vacate our earlier judgment and reconsider this case in light of Hunter. People v. Rodriguez, No.
122467 (Ill. Jan. 18, 2018) (supervisory order).
¶5 There is no question that the holding in Hunter applies in this case and that therefore our
initial ruling that the amendment to the automatic transfer provision applies to Sebastian must be
vacated. Hunter also holds that the amended sentencing guidelines apply only to sentencing
hearings held after those amendments took effect. Hunter, 2017 IL 121306, ¶¶ 54-56. Although
juvenile defendants who receive new sentencing hearings on remand must be sentenced in
accordance with the amended guidelines, contrary to Sebastian’s position, the new guidelines
provide no independent basis for remand and resentencing.
¶6 There is no reason to revisit most of the issues raised in this appeal and decided in our
initial opinion, as they are not impacted by Hunter. We will restate those aspects of our initial
opinion here since our previous judgment is now vacated.
¶7 There are two issues that we did not previously reach that we must now decide and that
have been fully briefed by the parties both in their original briefs and in supplemental briefs filed
after our supreme court remanded this case for our reconsideration in light of Hunter. Those
issues are whether defendant’s 50-year sentence violates the eighth amendment and the
proportionate penalties clause. We now hold, in accord with several other panels of this district,
that defendant’s 50-year sentence, pursuant to which he will not be eligible for release until the
age of 65, is not a de facto life sentence and therefore consideration of the “distinctive attributes
of youth” articulated by the United States Supreme Court in Miller v. Alabama, 567 U.S. 460,
471-72 (2012), and Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 733 (2016),
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was not required. In addition, defendant’s sentence does not violate the proportionate penalties
clause. We therefore affirm the judgment and sentence on the charge of first degree murder.
¶8 I. BACKGROUND
¶9 A. Pretrial Proceedings
¶ 10 Nine days after Sameere Conn’s death, Chicago police obtained a warrant to search
Sebastian Rodriguez’s home for evidence related to the shooting. In the complaint for the search
warrant, Detective Ricky Bean identified two eyewitnesses who testified before a grand jury that
they knew Sebastian and saw him, dressed in a hooded sweatshirt, fire shots into the convenience
store where Sameere was killed, as well as a third eyewitness who identified Sebastian as the
individual he saw looking through the glass window of the store’s door just before shots were
fired through that window. According to the complaint, officers also learned from two other
witnesses that Sebastian was known to possess a “kill list” of potential victims that included
Sameere. Finally, the complaint alleged that, in connection with prior arrests, Sebastian had
given the address 10744 South Hoxie Avenue in Chicago as his home address.
¶ 11 Finding this sufficient to establish probable cause, the circuit court issued a warrant to
search Sebastian’s home for “[o]ne dark colored or grey hooded sweat shirt, [o]ne document
containing a list of individual names, [a]nd one handgun.” Officers executed the warrant on
October 11, 2008, retrieving a revolver from under a floorboard in the bathroom and a number of
hooded sweatshirts from elsewhere in the home.
¶ 12 Sebastian was charged by grand jury indictment with first degree murder.
¶ 13 In his motion to suppress filed on April 26, 2010, Sebastian argued that the evidence
recovered during the October 11, 2008, search should be excluded because, even if officers had
probable cause to arrest him, they had no reason to believe that specific evidence would be found
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in his home 10 days after the shooting.
¶ 14 Although an evidentiary hearing was held on Sebastian’s motion to suppress, the
testimony offered related only to the scope of the search and the manner in which it was
conducted, issues that are not raised in this appeal. The circuit court denied Sebastian’s motion,
explaining that, in its view, when officers have “a strong identification of a suspected shooter
and that person’s home,” then “it is not beyond logic, nor *** beyond the law, to have probable
cause to see if in that person’s place of residence, the place they call home, the place in which
they keep their items, that there might be evidence of the crime there.”
¶ 15 On May 9, 2013, Sebastian moved for an evidentiary hearing, pursuant to Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), on the admissibility of expert testimony he expected the
State to introduce linking the gun found in his home to a bullet recovered from the scene of the
crime. Although he acknowledged that such testimony had historically been admitted by courts,
he insisted a Frye hearing was needed because the reliability of the methodologies employed by
ballistics experts had recently been questioned in the scientific community.
¶ 16 The circuit court disagreed and denied Sebastian’s motion. Noting that it was aware of no
published opinion of any court concluding that firearm identification evidence was not generally
accepted in the scientific community, the court concluded that Sebastian’s concerns went to the
weight and not to the admissibility of the evidence.
¶ 17 B. Trial
¶ 18 A four-day trial in this case began on February 4, 2014. Because Sebastian does not
contest the sufficiency of the evidence to support his conviction, we include only a brief
summary of the trial testimony, with a fuller recitation of the firearms identification testimony, to
provide context for the evidentiary issues raised on appeal.
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¶ 19 At approximately 8 p.m. on October 1, 2008, Sameere walked home from nearby
Trumball Park after a football game with a group of his friends from school. Sameere and two
other boys stopped to purchase snacks at Hook’s Finer Foods, a convenience store located at
106th Street and Bensley Avenue in Chicago, while two other friends waited outside. A handful
of people were in the store at the time: the cashier, the owner of the building, and a few
customers, including an individual known as “Tone” or “Tony,” who was known to frequent the
store. Sameere was near the front of the store waiting to make his purchase when, according to
witnesses, he was shot multiple times through a window in the front door of the store.
¶ 20 Joseph Neal and John Rodgers testified that, on the evening of October 1, 2008, they
were waiting across the street from Hook’s Finer Foods for Sameere and the others when they
saw Sebastian, who they knew from school and regularly saw around the neighborhood,
approach the store. According to Joseph and John, Sebastian looked at them, put the hood of his
sweatshirt up, and started firing a gun into the store. At trial, both boys insisted that Sebastian’s
sweatshirt was red—Joseph said “[i]t was red, same red as he always had”—and denied
previously telling officers and a grand jury that it was blue and gray. Joseph also denied telling
the grand jury that he and John were standing farther away from the store, near some offices.
However, Joseph acknowledged that he initially told officers and a television reporter that he
was inside the store and saw Sebastian tap on the glass before shooting. When asked why he lied,
Joseph explained that he thought the better vantage point would make him more believable: “I
knew who I seen and I really wanted [Sebastian] to get got for what he did, that’s why I said all
of that.”
¶ 21 Anthony Ray (also known as “Tone” or “Tony”), who was in custody for failing to
appear as a witness in this case, acknowledged his previous convictions for stealing a car and for
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selling drugs and that he was a diagnosed schizophrenic who took medication for that condition.
Anthony testified that he was at Hook’s Finer Foods just before 8 p.m. on the evening of October
1, 2008, and saw a light-skinned person wearing “a black hoody” standing outside just before
shots were fired through the front door of the store. Although Anthony at first told officers that
he did not see the shooter, he identified a photo of Sebastian for police officers several days later,
writing on the photo, “I saw him shoot through the window. Positive.” However, at trial Anthony
indicated that his identification was influenced by “two young kids” who were also in the store at
the time of the shooting and were taken to the police station with him for questioning. Anthony
explained: “I didn’t personally, personally, like myself, describe that—the person that did the
shooting ***. It’s kind of like, kind of like I put two and two together. I seen a face and a hoody
and everybody else saying they knew his name and they knew everything that happened.”
¶ 22 The State called two friends of Sameere’s, Kiante Lilly and Mario Martinez, to describe
Sebastian’s statements and conduct prior to the shooting. Kiante testified that, at Sameere’s
request, he set up a three-way telephone call in late September to try to resolve “a dispute”
between Sameere and Sebastian. Although Kiante told the grand jury that, during that
conversation, Sebastian said he had a “death list” and told Sameere “[y]ou on there, too, boy,” at
trial Kiante denied such a list was ever discussed, characterizing the call as nothing more than “a
friendly conversation.”
¶ 23 Mario testified that a month before the killing, in September 2008, defendant told him
that he was going to kill Sameere. Mario also testified that Sebastian got out of a green truck and
approached Mario on the evening of October 1, 2008, asked Mario if he wanted “to go take a
ride,” and showed him a gun—a revolver, “I don’t really know, like a .38”—that Sebastian had
wrapped in a sweater. Mario declined and went inside. Although Mario heard shots soon after, he
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did not learn that Sameere had been killed until the next morning and did not tell officers about
his encounter with Sebastian until they sought him out for an interview 10 days later.
¶ 24 The physical evidence in this case consisted of (1) a medium caliber lead bullet fragment
recovered from Sameere’s body; (2) a fired bullet recovered from a shelf inside Hook’s Finer
Foods on October 1, 2008; (3) a gunshot residue collection kit consisting of swabs of each of
Sebastian’s hands plus a control swab, which was administered by police officers shortly after
midnight on October 2, 2008; (4) a blue steel .357 Dan Wesson revolver containing six .357­
magnum caliber unfired cartridge cases, retrieved from under the floorboards of the bathroom
during the October 11, 2008, search of the home at 10744 South Hoxie Avenue in Chicago; and
(5) two gray and five black “hoody jackets” also recovered during that search.
¶ 25 Brian Mayland, a pattern evidence program manager for the Illinois State Police forensic
sciences command, testified as an expert in the field of toolmark and firearm identification.
Mayland previously worked for 17 years as a forensic scientist in firearms and toolmark
identification and, for just over one year, as a laboratory director. Although his undergraduate
degree was in business, Mayland testified that he had completed specialized training in the field
of firearms identification, including a two-year training program conducted by the Illinois State
Police, and had testified as an expert in the field approximately 80 times.
¶ 26 Mayland explained that a cartridge consists of four basic components: the case; the
powder inside the case; the bullet, which is seated inside of the case; and the primer, a pressure-
sensitive chemical compound located in the head of the case. When a gun is fired, the primer is
struck, the resulting spark ignites the powder, gasses from the burning powder create pressure,
and the pressure forces the bullet from the mouth of the cartridge down the barrel where rifling—
raised and lowered areas known as “lands” and “grooves”—form a twisting pattern along the
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inside of the barrel that causes the bullet to spin. Mayland testified that, as a firearm analyst, he
uses a comparison microscope to examine two bullets or cartridge cases and compare the marks
that are left behind on those items as a result of the firing process. Certain identifying features—
like the caliber of the bullet, the number and width of the grooves in the rifling, and the direction
of the twist—are known as “class characteristics”; they are present at the time of manufacture
and common to an entire class of firearms. Other marks are created by imperfections that
develop in a gun over time, as it is fired, and can be unique to a particular gun.
¶ 27 In this case, Mayland examined the fired bullet recovered from the scene of the crime and
determined that it was a .38-caliber bullet jacket with six lands, six grooves, and a right-hand
twist. He concluded that the metal fragment recovered from Sameere’s body was too mutilated to
be suitable for comparison. Mayland then test fired the revolver recovered from Sebastian’s
house, shooting four bullets into a tank of water, which slows the bullets without damaging them.
He compared the test shots to each other to determine if he “could identify test shot with test
shot,” something he acknowledged is not always possible. In this case he determined that it was.
He then compared the test shots side by side with the fired bullet under a comparison
microscope. It was Mayland’s opinion “that the fired bullet jacket was fired in that firearm.”
¶ 28 Defense counsel objected to Mayland providing this conclusion without elaborating on
the specific similarities or differences between the compared specimens that he relied upon as the
basis for his opinion. The court sustained the objection, pending further inquiry. When asked to
elaborat0e, Mayland stated that he “saw a sufficiently similar pattern of individual characteristics
that allowed [him] to form an opinion.” Specifically, “[t]here were striated marks that lined up
when [he] was doing the comparison from the evidence bullet to the test fired bullet.” Defense
counsel again objected, but this time the circuit court overruled the objection.
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¶ 29 On cross-examination, Mayland acknowledged that six is the most common number of
lands and grooves and it is “very common” for a revolver to have six lands and grooves with a
right-hand twist. Based on Mayland’s experience, he believed that hundreds of guns in Chicago
could have those same characteristics, noting, however, that he could not be more specific
because gun manufacturers “are very close” with such information.
¶ 30 Mayland also noted that the bullet jacket he analyzed was “badly mutilated,” consistent
with it having struck something. “Based on the condition of the bullet jacket,” he said he
measured at least two and “probably three” lands and grooves, although he did not know that for
certain and did not document his measurements in his notes. Mayland acknowledged that none of
the test shots matched the fired bullet casing exactly. However, he also stated that “no two test
shots will ever look exactly the same.” Mayland insisted that, in this case, “there was a
sufficiently similar pattern” between the test shots and the fired bullet case for him to form his
opinion. Mayland agreed both that there is no nationally recognized standard to determine that
the patterns were close enough to have been generated by the same gun and that his opinion was
a subjective one, not capable of verification by objective testing.
¶ 31 On redirect examination, Mayland reiterated that he has compared tens of thousands of
bullets and cartridge cases over his career, that he followed all Illinois State Police lab protocols,
and that he used methods commonly accepted in the field of firearms identification. Mayland
confirmed that nothing he was asked during cross-examination affected his opinion that the
bullet he analyzed was fired from the revolver found in Sebastian’s home.
¶ 32 Mary Wong, a forensic scientist with the Illinois State Police forensic sciences division,
testified as an expert in the field of gunshot residue analysis. Wong tested the swabs from the
residue collection kit administered to Sebastian at 12:30 a.m. on October 2, 2008, and the hooded
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sweatshirts retrieved from his home. None of the items tested positive for gunshot residue.
Although Wong found two “tricomponent particles” on the sample taken from Sebastian’s left
hand and one on the sample taken from his right hand, she explained that at least three particles
from the same sample are required to make a positive identification. All Wong could conclude
from her analysis was that Sebastian “may not have discharged the firearm with either hand”
and, “if he did, then the particles were either removed by activity or not deposited or not detected
by the procedure.” Although tricomponent particles are found in fireworks and car airbags in
addition to gunshot residue, Wong stated that other particles one would expect to find following
contact with those items were not present in the samples she tested. However, she acknowledged
that gunshot residue particles may be transferred to a person who touches a surface in a room
where a gun was fired or who comes in contact with someone who recently fired a gun.
¶ 33 Sebastian did not testify but presented the testimony of several witnesses.
¶ 34 Rosa Silva, an investigator with the public defender’s office, testified that, in 2013,
Joseph Neal told her that on the night of October 1, 2008, he saw a person with a red hoody
sweatshirt but that it was dark and he could see only the skin on the left side of the person’s jaw.
Joseph told Silva he thought the person was Sebastian because of the hooded sweatshirt.
¶ 35 Sebastian’s father, Steven Rodriguez Sr. testified that in October 2008 he owned a green
Dodge Dakota and lived at 10744 South Hoxie Avenue in Chicago with his five sons. Steven’s
two oldest sons, Steven Jr. and David, who were, respectively, 21 and 20 years old, were
members of the Latin Counts gang and had their friends over to the house “[a]ll the time.”
¶ 36 Steven Rodriguez Jr. testified that Sebastian came home alone after school on October 1,
2008, and remained in his room until police officers arrived around 8:15 p.m. On cross-
examination, Steven acknowledged that he was in the front of the house watching TV and
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playing video games and was not looking at the back door. Steven did not ever tell the police that
Sebastian had been at home with him because he did not think they would believe him.
¶ 37 Frank Maizer testified that he owned the building where Hook’s Finer Foods is located
and was in the store on the night of October 1, 2008. According to Maizer, the store had four
surveillance cameras but they were not recording that day because the memory was full. He
denied telling officers that he had inadvertently erased the videos but agreed that he might have
told them that Anthony Ray removed an object from his mouth before the police arrived.
¶ 38 In its closing argument, the State urged the jury to believe the eyewitness testimony
identifying Sebastian as the shooter, which was corroborated by the particles of gunshot residue
found on Sebastian’s hands and Mayland’s testimony that the gun found in Sebastian’s home
was the murder weapon. Defense counsel responded by pointing out that there were innocent
explanations for a few particles of gunshot residue to be on a person’s hands and attacked
Mayland’s conclusions as not being based on objective standards or specific measurements.
Defense counsel argued that, following the shooting, Sameere’s friends heard a rumor that
Sebastian killed Sameere and were willing to lie about what they saw to make sure he was
convicted. According to defense counsel, it was more likely that some unidentified shooter
intending to shoot Anthony Ray, a former gang member who was carrying drugs at the time, had
inadvertently shot Sameere.
¶ 39 The jury found Sebastian guilty of first degree murder and the circuit court denied his
motion requesting a new trial, in which he argued that the circuit court erred when it denied both
his motion to suppress and his motion for a Frye hearing. Following a hearing, the court
sentenced Sebastian to 25 years in prison for first degree murder (730 ILCS 5/5-4.5-20(a) (West
2014)), plus a mandatory sentencing enhancement of 25 additional years for personally
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discharging the firearm that caused Sameere’s death (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West
2014)), and 3 years of mandatory supervised release (730 ILCS 5/5-8-1(d)(1) (West 2014)). The
court denied Sebastian’s motion to reconsider his sentence, and Sebastian appealed.
¶ 40 II. JURISDICTION
¶ 41 Sebastian was sentenced by the circuit court on March 31, 2014, and timely filed his
notice of appeal on April 15, 2014. Accordingly, this court has jurisdiction pursuant to article VI,
section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court
Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case (Ill.
S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013)). As noted above, the case is before us on a remand from
our supreme court. People v. Rodriguez, No. 122467 (Ill. Jan. 18, 2018) (supervisory order).
¶ 42 III. ANALYSIS
¶ 43 On appeal, Sebastian argues that his conviction for first degree murder should be reversed
both because the circuit court erroneously denied his motion to suppress the evidence resulting
from the search of his residence for a lack of probable cause and because the circuit court should
have conducted a Frye hearing before admitting the testimony of the State’s expert on toolmark
and firearms identification.
¶ 44 Sebastian also argues that his 50-year sentence is unconstitutional. Prior to our supreme
court’s decision in Hunter, Sebastian also argued that an amendment to the exclusive jurisdiction
statute changing the age from 15 to 16 for the automatic transfer to criminal court of cases
involving certain crimes should be applied retroactively to his case. Pursuant to that amendment,
Sebastian asked us to vacate his sentence and remand this matter to juvenile court, where the
State could seek a discretionary transfer hearing if it chose. Sebastian alternatively argued that he
was entitled to a new sentencing hearing conducted pursuant to amended sentencing guidelines
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for individuals who were under the age of 18 at the time of their offenses.
¶ 45 We address each argument in turn.
¶ 46 A. Motion to Suppress
¶ 47 Sebastian initially argues that the circuit court should have granted his motion to suppress
because the police lacked sufficient probable cause to search his home. Sebastian does not argue
that the police lacked probable cause to arrest him for Sameere’s murder but that having this did
not necessarily mean they also had probable cause to search his home for specific evidence.
According to Sebastian, the complaint submitted by Detective Bean in support of the search
warrant was defective because it failed to establish a sufficient nexus between Sameere’s
shooting and the items sought from Sebastian’s home 10 days later, i.e., the murder weapon, a
hooded sweatshirt worn during the shooting, and a suspected list of potential victims. The State
argues that, under the circumstances of this case, it was reasonable for the circuit court to infer
that such items might be found in Sebastian’s home.
¶ 48 Both the United States Constitution and the Illinois Constitution require that a warrant to
search an individual’s home must be based on probable cause and supported by an affidavit
describing the place to be searched and the items to be seized. U.S. Const., amend. IV; Ill. Const.
1970, art. I, § 6. Probable cause exists “if facts set forth in an affidavit would cause a reasonable
person to believe a crime has been committed and evidence of that crime is in the place to be
searched.” People v. Damian, 299 Ill. App. 3d 489, 491 (1998). A nexus must be established—
directly or through reasonable inferences—between the criminal offense, the items to be seized,
and the place to be searched. People v. Beck, 306 Ill. App. 3d 172, 178-79 (1999). The issuing
court’s task “is simply to make a practical, commonsense decision whether, given all the
circumstances set forth in the affidavit ***, there is a fair probability that contraband or evidence
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of a crime will be found in a particular place.” (Internal quotation marks omitted.) People v.
McCarty, 223 Ill. 2d 109, 153 (2006). Although we review a circuit court’s ruling on a motion to
suppress de novo (People v. Pitman, 211 Ill. 2d 502, 512 (2004)), we defer to an issuing judge’s
determination of probable cause and resolve any doubts in favor of upholding a warrant that has
been issued (People v. Exline, 98 Ill. 2d 150, 156 (1983) (citing United States v. Ventresca, 380
U.S. 102 (1965))).
¶ 49 We are satisfied that Detective Bean’s complaint established probable cause to search
Sebastian’s home. The police sought not only the murder weapon and a list of intended victims
but a specific article of clothing—a dark-colored or gray hooded sweatshirt—identified by three
eyewitnesses as something Sebastian was wearing at the time of the shooting. Although we
certainly agree that probable cause to arrest does not always equate to probable cause to search
the arrestee’s home, it is reasonable to infer, absent evidence to the contrary, that a person will
generally keep possessions, including possessions that link that person to the crime, in his or her
home. See, e.g., People v. Hammers, 35 Ill. App. 3d 498, 504 (1976) (“The complaint was
sufficient to show probable cause that [the] defendant shot and killed the victim, and, if so, it was
reasonable for the issuing judge to infer that the weapon used might be at the defendant’s home
nine days later.”); People v. Weinger, 63 Ill. App. 3d 171, 175 (1978) (concluding that it was a
“logical supposition” for the defendant to have clothing and jewelry purportedly worn by him
during the murders he was charged with, as well as the murder weapon, in his apartment). Here,
it was entirely reasonable to infer that Sebastian, a 15-year-old boy with no vehicle or other place
to store such items, would keep a gun, clothing, and a list of potential targets at his residence.
¶ 50 In the cases relied on by Sebastian, circumstances were present that undermined the
common, justified assumption that possessions are generally kept in the home. For example,
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Sebastian relies on People v. McCoy, 135 Ill. App. 3d 1059 (1985), but the defendant in McCoy,
who was charged with possessing a firearm without a firearm owner’s identification card, was an
adult who was recently seen by a coworker with several guns in his van. Id. at 1062. Under these
circumstances, where the defendant had other places available to him to keep the guns at issue—
i.e., at his place of employment or in his van—more was needed to say that a fair probability
existed that the guns would be found in the defendant’s home. Id. at 1066.
¶ 51 People v. Rojas, 2013 IL App (1st) 113780, is similarly distinguishable. There, the only
evidence supporting a warrant to search the defendant’s residence consisted of cryptic telephone
conversations that, although they might have suggested “that the criminal activity of drug
trafficking was afoot,” did not indicate where the drug trafficking was occurring. Rojas, 2013 IL
App (1st) 113780, ¶ 18. To the contrary, the conversations suggested that the other party did not
know where the defendant’s house was located and had not been there before. Id. Under those
circumstances, the court in Rojas concluded that the officers’ “generic offering that drug
trafficking records ‘are often maintained under dominion and control of the narcotics traffickers,
and as such, are often kept in their residences or other secure locations’ ” did not rise above the
level of conjecture. Id. Like the defendant in McCoy, who had other places available to him to
store the firearms he was alleged to illegally possess, the defendant in Rojas could have stored
such records in other locations. The absence of any evidence indicating that Sebastian, a teenager
living in his father’s home, had other places available to him to store his possessions
distinguishes the facts of this case from those present in both McCoy and Rojas.
¶ 52 Because we conclude that probable cause existed to search Sebastian’s home, we need
not reach the State’s alternative arguments that the good faith exception to the exclusionary rule
applies or that the admission of evidence resulting from the search was harmless error.
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¶ 53 B. Motion for a Frye Hearing
¶ 54 Sebastian also argues that the circuit court erred in denying his motion to either exclude
the State’s toolmark and firearm identification evidence or to hold a Frye hearing to determine
the admissibility of that evidence. In support of his contention, both in the circuit court and on
appeal, that such evidence is not generally accepted in the scientific community, Sebastian relies
primarily on a 2009 report authored by the National Research Council of the National Academy
of Sciences (NRC) titled “Strengthening Forensic Science in the United States: A Path
Forward.” 1 In that report, the NRC noted that toolmark identification has “never been exposed to
stringent scientific scrutiny,” 2 involves “subjective qualitative judgments by examiners,” 3 is
“based on unarticulated standards,” 4 and lacks any “statistical foundation for estimation of error
rates.” 5 The NRC concluded that, although there is some benefit to be derived from this
testimony, additional studies are needed to address these concerns.
¶ 55 The circuit court denied Sebastian’s motion for a Frye hearing, concluding that the
criticisms raised in the NRC’s report go to the weight, and not the admissibility, of toolmark and
firearm identification evidence. The court also noted that there are no published opinions holding
that such evidence is not generally accepted in the relevant scientific community.
¶ 56 In Illinois, “new” or “novel” scientific evidence is only admissible if it meets the standard
set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). People v. McKown, 226 Ill. 2d
245, 254, 257 (2007). “[T]he methodology or scientific principle upon which the opinion is
based [must be] sufficiently established to have gained general acceptance in the particular field
1
National Research Council of the National Academies, Strengthening Forensic Science in the United
States: A Path Forward (2009), https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf.
2
Id. at 42.
3
Id. at 153.
4
Id. at 153-54.
5
Id. at 154.
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in which it belongs.” (Internal quotation marks omitted.) Id. at 254. A court may determine
whether a methodology or principle is generally accepted either by conducting an evidentiary
hearing or “by taking judicial notice of unequivocal and undisputed prior judicial decisions or
technical writings on the subject.” Id. A scientific methodology need not be universally accepted
or even accepted by a majority of experts in the field; “[i]nstead, it is sufficient that the
underlying method used to generate an expert’s opinion is reasonably relied upon by experts in
the relevant field.” In re Commitment of Simons, 213 Ill. 2d 523, 530 (2004). Although it is
within the circuit court’s discretion to decide both whether a particular witness is qualified to
testify as an expert in a particular field and whether the testimony that witness will offer is
relevant, we review de novo the circuit court’s determination of whether the methodology used
by the witness meets Frye’s “general acceptance” standard. People v. Nelson, 235 Ill. 2d 386,
430-31 (2009).
¶ 57 We first consider whether toolmark and firearm identification evidence is “new” or
“novel.” The State contends that it is decidedly not, noting that courts have allowed such
evidence since at least 1930, when our supreme court held in People v. Fisher, 340 Ill. 216, 240­
41 (1930) that, while a jury is not bound to accept it as true, firearm identification evidence “is
competent expert testimony on a subject properly one for expert knowledge.” In the decades
since Fisher, firearms experts have regularly testified in Illinois courts, for both the prosecution
and the defense.
¶ 58 Sebastian does not dispute this, but insists that, pursuant to our supreme court’s analysis
in McKown, firearm identification evidence is nevertheless novel because “there is no record that
there has ever been a Frye hearing in Illinois to determine whether generally accepted scientific
principles support [it].” The court in McKown held that the horizontal gaze nystagmus (HGN)
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test, a field sobriety test frequently used by police officers, was a novel methodology subject to
the Frye standard. McKown, 226 Ill. 2d at 258. The court explained that its holding was based on
“the history of legal challenges to the admissibility of HGN test evidence, and the fact that a
Frye hearing ha[d] never been held in Illinois.” Id. However, as the court noted, the HGN test
was “repeatedly challenged in court, with varying degrees of success,” both in Illinois and in
other states, and this court had issued “divergent opinions on the topic,” such that the general
acceptance of the test “remain[ed] unsettled.” (Internal quotation marks omitted.) Id. at 257.
¶ 59 This case is distinguishable from McKown because the admissibility of firearms
identification evidence is not similarly “unsettled” in Illinois. The circuit court noted that it was
unaware of any published opinion of any court stating that firearms evidence was not generally
accepted in the scientific community, and Sebastian has cited none on appeal. The few out-of­
state cases Sebastian cites—in which courts have raised concerns about the reliability of such
evidence but have nonetheless held the methodology to be sufficiently reliable to be admitted, at
least in some qualified form—do not create the same situation the McKown court was presented
with, where legal challenges were resolved both for and against admissibility of the HGN test
and the law was truly unsettled. See United States v. Glynn, 578 F. Supp. 2d 567, 569-75
(S.D.N.Y. 2008); United States v. Monteiro, 407 F. Supp. 2d 351, 355 (D. Mass. 2006); United
States v. Green, 405 F. Supp. 2d 104, 120-24 (D. Mass. 2005).
¶ 60 Similarly unhelpful are cases involving testimony based on scientific methodologies that,
although sometimes deemed admissible, never achieved the same sort of widespread acceptance
as ballistics evidence. See People v. Zayas, 131 Ill. 2d 284, 296 (1989) (hypnotically refreshed
testimony); People v. Baynes, 88 Ill. 2d 225, 244 (1982) (polygraph tests).
¶ 61 Although we understand the concerns raised by other courts and by the NCR in its report
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regarding the subjectivity of firearm identification testimony and the inability to test its accuracy,
we cannot say that the circuit court erred in denying Sebastian’s motion for a Frye hearing.
Toolmark and firearm identification evidence is not new or novel, either pursuant to the plain
meaning of those words or in accordance with the analysis employed by our supreme court in
McKown. Far from being unsettled, the law in Illinois is consistent in its admission of such
evidence. See People v. Robinson, 2013 IL App (1st) 102476, ¶ 80.
¶ 62 Nor do we find that the NCR’s report so undermines the reliability of ballistics evidence
that it has ceased to be “generally accepted” in the scientific community. We agree with the
circuit court that the report’s concerns go to the weight and not to the admissibility of such
evidence. Indeed, our review of the record in this case indicates that—in connection with his
objection that some of Mayland’s testimony lacked foundation, the denial of which Sebastian
chose not to contest on appeal—during cross-examination defense counsel explored at length the
limitations of Mayland’s conclusions.
¶ 63 C. Retroactivity of Amendment Changing the Minimum Age for Automatic Transfer
¶ 64 Shortly after Sebastian filed his notice of appeal, Public Act 99-258 was enacted (Pub.
Act 99-258 (eff. Jan. 1, 2016)). Among other things, it amended section 5-130 of the Juvenile
Court Act to raise the age of automatic transfer from juvenile court to criminal court for
individuals charged with first degree murder from 15 to 16 years of age. 705 ILCS 405/5­
130(1)(a) (West 2016). In the first round of supplemental briefing, Sebastian argued that this
amendment should apply to him retroactively. We agreed. Relying on our supreme court’s
decision in People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 28, which held that this
amendment to the Juvenile Court Act regarding the age for automatic transfer applied
retroactively to pending cases, we vacated Sebastian’s sentence and remanded his case to the
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juvenile court where the State could seek a discretionary transfer to criminal court if it so chose.
¶ 65 In Howard our supreme court reasoned that, because the legislature did not clearly
indicate the temporal reach of the amendment to section 5-130, the general savings clause in
section 4 of the Statute on Statutes applied. Howard, 2016 IL 120729, ¶¶ 20, 28 (citing 5 ILCS
70/4 (West 2014)). That savings clause has been interpreted to mean that procedural changes to
statutes should be applied retroactively and substantive changes applied prospectively. Id. ¶ 20.
Because a transfer from juvenile court to criminal court is a matter of procedure, the Howard
court held that the amendment applied to all “pending cases.” Id. ¶ 28.
¶ 66 Although Howard involved a case pending in the circuit court, in our initial opinion we
concluded that its retroactivity analysis applied equally to cases, like Sebastian’s, that were
pending on direct appeal when the amendment took effect. However, in Hunter, 2017 IL 121306,
¶ 43, our supreme court reached the opposite conclusion. Acknowledging that its “retroactivity
jurisprudence ha[d] not typically distinguished” between cases pending in the circuit court and
cases pending on direct review, the court addressed why such a distinction was proper under the
circumstances. Id. ¶¶ 27-28. As the court explained, in Hunter, unlike in Howard, there were no
“ ‘ongoing proceedings’ ” in the circuit court that the new statute could be applied to and there
was no reversible error necessitating such proceedings. Id. ¶ 32. The court also noted that, under
section 4 of the Statute on Statutes, procedural amendments are applied retroactively only “ ‘so
far as practicable.’ ” Id. ¶ 37 (quoting 5 ILCS 70/4 (West 2016)). In Howard the court had
equated “practicable” with “feasible.” Id. ¶ 38 (citing Howard, 2016 IL 120729, ¶ 32). The
Hunter court, however, rejected the notion that remand to the juvenile court for a discretionary
transfer hearing was practicable for the defendant in Hunter, who, unlike the defendant in
Howard, had aged out of juvenile court jurisdiction. Id. (citing People v. Fiveash, 2015 IL
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117669, ¶¶ 14-16 (holding the scope of the Juvenile Court Act is limited to persons under the age
of 21)); id. ¶ 41.
¶ 67 There is no basis on which to distinguish Sebastian’s case from Hunter. As in that case,
there are no ongoing circuit court proceedings and, due to his age, Sebastian is no longer subject
to the jurisdiction of the juvenile court. The amendment to the automatic transfer provision of the
Juvenile Court Act that took effect while Sebastian’s case was on direct appeal does not apply.
¶ 68 In Hunter our supreme court also held that the amended sentencing guidelines for
juvenile defendants sentenced in criminal court (see 730 ILCS 5/5-4.5-105 (West 2016)) apply
only to sentencing hearings held after those amendments took effect. Hunter, 2017 IL 121306,
¶¶ 54-56. Juvenile defendants who receive new sentencing hearings on remand must be
sentenced in accordance with the new guidelines, but pursuant to Hunter, we must reject
Sebastian’s argument that the amended guidelines provide an independent basis for us to remand
his case for resentencing.
¶ 69 D. Constitutionality of Sentence
¶ 70 We now consider the issue we did not reach in our previous opinion: whether Sebastian’s
50-year sentence, pursuant to which he will not be released until the age of 65, is a de facto life
sentence subject to our supreme court’s holding in People v. Reyes, 2016 IL 119271 (per
curiam), and whether this sentence violates both the eighth amendment (U.S. Const., amend.
VIII) and the proportionate penalties clause (Ill. Const. 1970, art. I, § 11). After considering the
parties’ supplemental briefing on this issue and the relevant controlling and persuasive
authorities, we conclude that defendant’s 50-year sentence is not a de facto life sentence and
does not violate the eighth amendment or the proportionate penalties clause.
¶ 71 Defendant, who was 15 years old at the time he committed the murder in this case, was
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sentenced to 50 years’ imprisonment for his conviction of first degree murder. The statutory
minimum for the first degree murder in this case was 45 years: 20 years for the murder and 25
years for the firearm enhancement. (See 730 ILCS 5/5-4.5-20(a) (West 2016) (providing a range
of 20 to 60 years); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2016) (providing for an add-on of 25
years to natural life).) Defendant asserts that he will have to serve 100% of the 50-year sentence
and will not be released until he reaches the age of 65.
¶ 72 Recently in Reyes, 2016 IL 119271, our supreme court held that a de facto life sentence
imposed on a juvenile constitutes cruel and unusual punishment in violation of the eighth
amendment if the sentence is imposed without considering the mitigating factors set forth in
Miller, 567 U.S. 460. The court did not specifically address what length of sentence constitutes a
de facto life sentence, but the State conceded that the defendant would not live long enough to
become eligible for release (the defendant would be eligible for release after serving 89 years).
Reyes, 2016 IL 119271, ¶ 10. The court found:
“A mandatory term-of-years sentence that cannot be served in one lifetime has the
same practical effect on a juvenile defendant’s life as would an actual mandatory
sentence of life without parole—in either situation, the juvenile will die in prison. Miller
makes clear that a juvenile may not be sentenced to a mandatory, unsurvivable prison
term without first considering in mitigation his youth, immaturity, and potential for
rehabilitation.” Id. ¶ 9.
¶ 73 Our supreme court has yet to provide guidance on what length of sentence constitutes a
de facto life sentence. However, defendant’s 50-year sentence is significantly less than prison
terms found to be unconstitutional under Miller. See Reyes, 2016 IL 119271, ¶ 10 (aggregate
sentence of 97 years); People v. Nieto, 2016 IL App (1st) 121604, ¶ 43 (78-year sentence). The
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length of defendant’s prison sentence is substantially similar to cases in which we have found
that the sentence imposed on a juvenile did not amount to a de facto life sentence. See People v.
Applewhite, 2016 IL App (1st) 142330 (45-year sentence, allowing release at age 62); People v.
Gipson, 2015 IL App (1st) 122451 (52-year sentence); People v. Hoy, 2017 IL App (1st) 142596(upholding 52-year sentence); cf. People v. Buffer, 2017 IL App (1st) 142931; People v. Joiner,
2018 IL App (1st) 150343. Although defendant’s age upon release, 65, would fall toward the end
of his actuarial lifespan, his sentence is objectively survivable and thus cannot be considered the
functional equivalent of a de facto life sentence.
¶ 74 In so holding, we affirm our earlier position that the determination as to whether a
particular sentence amounts to a de facto life sentence should not be based on actuarial data
specific to the defendant, including race, ethnicity, gender, and other social factors bearing on an
individual’s life expectancy. People v. Perez, 2018 IL App (1st) 153629, ¶ 37. As this panel held
in Perez, “[a]ppellate courts will be treading into dangerous territory if they start reviewing
sentencing reductions through the prism of race, ethnicity, or gender.” Id. Absent further
guidance from our supreme court on what specific factors, other than the length of sentence, if
any, a court of review should consider in determining whether a particular length of sentence for
a juvenile offender should be considered a de facto life sentence, we will apply the rationale of
Miller and Reyes.
¶ 75 Even if the sentence imposed here could be considered a de facto life sentence, it is clear
from the record that the trial court considered defendant’s youth and attendant circumstances at
sentencing. When defense counsel began to address the Miller factors in mitigation, the trial
judge made clear that she would not be sentencing defendant to natural life, which would have
required her to consider the Miller factors (Reyes had not yet been decided). The record is clear
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that the trial court nevertheless considered the Miller factors in its sentencing decision.
¶ 76 The inquiry into whether a sentencing court complied with Miller is backwards-looking.
People v. Holman, 2017 IL 120655, ¶ 47. In this case, the court stated, “I am mindful [that
defendant] was 15 years old at the time.” The court further stated “I am to consider his
rehabilitative potential” and the facts surrounding the incident as well as defendant’s lack of
criminal history. The court considered the age of the victim and the facts surrounding the
offense. The court clearly considered defendant’s presentence investigation, which detailed
defendant’s youth, educational and social history. The court heard arguments in aggravation and
mitigation, and deliberately chose to impose a 50-year sentence, which is five years more than
the required minimum sentence. The trial court intentionally decided to give defendant a
sentence less than the maximum and refused to give defendant a life sentence. The fact that
defendant considers his 50-year sentence for murdering a 13-year-old excessive does not alter
the fact that defendant received a sentencing hearing that complied with Miller and also
considered the seriousness of the offense, defendant’s rehabilitative potential, and the need to
protect society.
¶ 77 Defendant also argues his 50-year sentence is unconstitutional under the proportionate
penalties clause of the Illinois Constitution both facially and as-applied to him. Defendant claims
that “the proportionate penalties clause cannot abide the statutory mandate that all 15-year-olds
convicted of first degree murder with a firearm serve a minimum adult sentence of 45 years.”
¶ 78 A challenge under the proportionate penalties clause “contends that the penalty in
question was not determined according to the seriousness of the offense.” People v. Sharpe, 216
Ill. 2d 481, 487 (2005). A violation of the proportionate penalties clause may be shown where
the penalty imposed is “ ‘cruel, degrading, or so wholly disproportionate to the offense
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committed as to shock the moral sense of the community.’ ” Id. (quoting People v. Moss, 206 Ill.
2d 503, 522 (2003)). However, our supreme court has “never defined what kind of punishment
constitutes ‘cruel,’ ‘degrading,’ or ‘so wholly disproportioned to the offense as to shock the
moral sense of the community’ ” because “as our society evolves, so too do our concepts of
elemental decency and fairness which shape the ‘moral sense’ of the community.” People v.
Miller, 202 Ill. 2d 328, 339 (2002) (Leon Miller). “To determine whether a penalty shocks the
moral sense of the community, we must consider objective evidence as well as the community’s
changing standard of moral decency.” People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008).
¶ 79 At the forefront, defendant asserts that the proportionate penalties clause provides greater
protection than the eighth amendment. The State responds that the Illinois proportionate
penalties clause is coextensive with the cruel and unusual punishment clause and, because his
eighth amendment challenge failed, defendant’s proportionate penalties argument must also fail.
We acknowledge that the proportionate penalties clause has been found to offer greater
protection to defendants than the eighth amendment. See People v. Thomas, 2017 IL 142557,
¶ 23; People v. Clemons, 2012 IL 107821, ¶ 40; People v. Wilson, 2016 IL App (1st) 141500,
¶ 38; People v. Pace, 2015 IL App (1st) 110415, ¶ 139.
¶ 80 Our legislature enacted the firearm enhancement statute requiring the imposition of
additional prison time for the use of a firearm during the commission of certain crimes (730
ILCS 5/5-8-1(a)(1)(d)(i)-(iii) (West 2000)) with the purpose of promoting “public health and
safety, and to impose severe penalties that will deter the use of firearms in the commission of
felonies.” People v. Butler, 2013 IL App (1st) 120923, ¶ 36. Our supreme court has consistently
upheld the constitutionality of mandatory firearm enhancements under the proportionate
penalties clause, finding that in fixing a penalty for an offense, the potential for rehabilitation
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need not be given greater weight or consideration than the seriousness of the offense. Sharpe,
216 Ill. 2d at 525. We are aware that our legislature recently enacted a new statute that allows a
trial court discretion in imposing these firearm enhancements on juveniles (730 ILCS 5/5-4.5­
105(b) (West 2016)), but the legislature did not completely eliminate the application of the
firearm enhancement, nor did it make the provision retroactive. Hunter, 2017 IL 121306, ¶ 56.
This demonstrates that the legislature intended the application of the firearm enhancements to be
appropriate in certain circumstances involving juveniles.
¶ 81 The evidence in this case proved that defendant declared his intention to kill 13-year-old
Sameere Conn one month before he approached a convenience store, put the hood of his
sweatshirt up, and fired a gun into the store killing Sameere, who had stopped at the store to buy
snacks after a football game. The evidence further showed that Sameere was on defendant’s
“death list.” This was a cold act of premeditated murder. However, we must consider more than
defendant’s conduct when analyzing a sentence under the proportionate penalties clause. Gipson,
2015 IL App (1st) 122451, ¶ 72.
¶ 82 Defendant argues that his culpability is diminished because he was negatively influenced
by others. Defendant claims that he grew up with two older brothers who belonged to the Latin
Kings street gang. He also claims that his house was strewn with filth and garbage throughout.
No school books or desks were present in the home. Defendant argues that the negative
influences in his life and his upbringing, over which he had no control, are similar to those of the
defendants in Gipson, 2015 IL App (1st) 122451, and Leon Miller, 202 Ill. 2d 328, whose
sentences were found to be in violation of the proportionate penalties clause.
¶ 83 Despite defendant’s contention to the contrary, we find Gipson and Leon Miller to be
factually distinguishable. In Gipson, the record contained evidence that the juvenile defendant
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had mental illness that made him prone to impulsive behavior. Gipson, 2015 IL App (1st)
122451, ¶ 3. Gipson’s own counsel described defendant as a “ ‘disturbed retarded child’ under
his older brother’s spell.” Id. ¶ 17. The defendant had previously been found unfit to stand trial in
a prior proceeding, and the trial court acknowledged that the state system failed defendant by not
providing mental health treatment. Id. ¶ 74. There is nothing in the record before us to indicate
that defendant suffered from a similar severe mental illness or was denied necessary mental
health treatment.
¶ 84 In Leon Miller, the juvenile was tried as an adult and convicted of two counts of first
degree murder on an accountability theory. Leon Miller, 202 Ill. 2d at 330. The evidence at trial
showed that two men approached the defendant while he was standing on a street corner and
asked him to act as a lookout for them. Id. at 330-31. The defendant agreed and acted as a
lookout while the two men shot two other men. Id. The defendant was sentenced to 50 years’
imprisonment. Id. at 332.
¶ 85 Our supreme court held the multiple-murder sentencing statute, which mandated a
sentence of natural life imprisonment, was unconstitutional as applied to the defendant, who was
convicted under a theory of accountability. Id. at 341. The court reasoned that the convergence of
the transfer statute, the accountability statute, and the multiple-murder sentencing statute in the
defendant’s case eliminated the court’s discretion to consider mitigating factors like the
defendant’s age and degree of participation. Id. at 342. The fact that defendant had only been
informed of the murders minutes before it happened and that he was convicted on a theory of
accountability renders any factual comparison between defendant’s case and Leon Miller
inappropriate.
¶ 86 In the case at bar, defendant had a “kill list” and Sameere was on it. Defendant stated his
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intention to kill Sameere one month before he intentionally shot and killed him. Defendant later
went to a store where Sameere was buying snacks and shot Sameere, killing him. In our view,
there is nothing about the proffered negative influences in defendant’s life or his upbringing that
would render his sentence unconstitutional under the proportionate penalties clause. Defendant’s
argument on appeal relating to his diminished culpability and the negative influences on his life
were made to and considered by the trial court. We have no doubt that the penalty imposed was
determined after thoughtful consideration of the seriousness of the offense, defendant’s youth,
and his rehabilitative potential. Sharpe, 216 Ill. 2d at 487.
¶ 87 As we have found that defendant’s sentence did not violate the proportionate penalties
clause as applied to him, we need not address his facial challenge. Where a statute or ordinance
is constitutional as applied to a party, a facial challenge will also fail since there is necessarily at
least one circumstance in which the statute or ordinance is constitutional. Horvath v. White, 358
Ill. App. 3d 844, 854 (2005); see also Freed v. Ryan, 301 Ill. App. 3d 952, 958 (1998).
¶ 88 IV. CONCLUSION
¶ 89 We hold that the court did not err in denying defendant’s motion to suppress. A Frye
hearing was not necessary before admitting the testimony of the State’s expert witness. Under
Hunter, defendant is not entitled to a new transfer hearing. Defendant’s 50-year sentence for first
degree murder is not a de facto life sentence and does not violate the eighth amendment or the
proportionate penalties clause. For the foregoing reasons, we affirm the judgment of the circuit
court.
¶ 90 Affirmed.
¶ 91 JUSTICE MIKVA, dissenting in part:
¶ 92 I dissent from the majority’s holding that Sebastian’s 50-year sentence, pursuant to which
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he will be kept in prison until the age of 65, is not a de facto life sentence. I also disagree with
the majority’s conclusion that we can determine from the record in this case that the circuit court
judge considered the factors set out in Miller v. Alabama, 567 U.S. 560 (2012).
¶ 93 A growing body of jurisprudence and legislative action firmly establishes that juvenile
offenders differ in significant ways from adult offenders. Juveniles lack maturity, are more likely
to take risks, are more susceptible to negative influences, have only limited control over their
environments, and are frequently unable to remove themselves from settings where crime is
likely to occur. Miller, 567 U.S. at 471. Their character traits are less well-formed than those of
adults and their conduct is less indicative of their capacity for change. Id. The Court has
recognized that the “diminished culpability and greater prospects for reform” of juveniles
correspond with diminished penological justifications for imposing on them the harshest
sentences available. (Internal quotation marks omitted.) Montgomery, 577 U.S. at __, __, 136 S.
Ct. 718, 733 (2016). Following its earlier cases holding that sentencing juveniles to death for any
crime or to life in prison without parole for crimes other than murder violated the eighth
amendment to the United States Constitution (Roper v. Simmons, 543 U.S. 551, 578-79 (2005);
Graham v. Florida, 560 U.S. 48, 82 (2010)), the Court held in Miller that the eighth amendment
also “forbids a sentencing scheme that mandates life in prison without possibility of parole for
juvenile offenders.” Miller, 567 U.S. at 479. Embracing the Miller factors even more broadly,
our legislature recently determined that, effective January 1, 2016, the Miller factors must be
considered before any sentence is imposed on a juvenile offender. 730 ILCS 5/5-4.5-105(a)
(West 2016). It also made firearm enhancements discretionary, rather than mandatory, for
juveniles. Id. § 5-4.5-105(b)-(c).
¶ 94 Two recent decisions of our supreme court offer guidance on how Miller should be
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retroactively applied to those juveniles sentenced before the legislative changes noted above took
effect. In Holman, 2017 IL 120655, ¶ 40, the court held that Miller applies to discretionary as
well as to mandatory sentences of life in prison without parole for juveniles. And in Reyes, 2016
IL 119271, ¶¶ 9-10, the court joined a number of other state courts that have recognized that the
concerns present in Miller are triggered not only when a juvenile has received a de jure life
sentence, but when a lengthy term-of-years sentence is a de facto life sentence, i.e., the
functional equivalent of a sentence of life in prison without parole. See State v. Ramos, 387 P.3d
650, 658 (Wash. 2017); State v. Zuber, 152 A.3d 197, 211-12 (N.J. 2017); People v. Franklin,
370 P.3d 1053, 1059-60 (Cal. 2016); Casiano v. Commissioner of Corrections, 115 A.3d 1031,
1048 (Conn. 2015); Bear Cloud v. State, 334 P.3d 132, 144 (Wyo. 2014); Brown v. State, 10
N.E.3d 1, 8 (Ind. 2014); State v. Null, 836 N.W.2d 41, 71 (Iowa 2013).
¶ 95 As is often the case when a high court establishes a new rule, later cases clarify its
contours. Reyes provides only a broad outline. In that case the State conceded, and our supreme
court agreed, that the defendant’s 97-year sentence—of which he would be required to serve at
least 89 years and which would make him at least 105 years old upon release—was a de facto
life sentence. Reyes, 2016 IL 119271, ¶ 10. The court also noted that on remand the defendant,
who would no longer be subject to a 25-year mandatory firearm enhancement, could receive as
little as 32 years in prison, a sentence the court stated was “not a de facto life sentence.” Id. ¶ 12.
¶ 96 Following Reyes, this court has had a number of opportunities to weigh in on where the
line should be drawn when the sentence imposed falls somewhere between the two extremes set
out in Reyes. In a number of cases, the court has expressed its reluctance to set a bright-line rule
based solely on a defendant’s age upon release or to attempt to predict the life expectancy of an
individual defendant from actuarial data, including data based on race, ethnicity, gender, and a
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myriad of societal factors bearing on an individual’s life expectancy. See, e.g., People v.
Jackson, 2016 IL App (1st) 143025, ¶ 57, pet. for leave to appeal pending, No. 121901
(concluding that “[t]hese are policy considerations that are better handled in a different forum”).
In others, the court has “recognized the dilemma in grappling with such complex questions,” but
noted that it could “not see how justice is better served by avoiding them.” Buffer, 2017 IL App
(1st) 142931, ¶ 57, appeal allowed, No. 122327 (Ill. Nov. 22, 2017).
¶ 97 I fully agree with the majority in this case (supra ¶ 74) and those of my other colleagues
who have concluded that it would be ill-advised for the appellate court to engage in fact-
intensive determinations regarding the life expectancies of specific defendants, drawn from
actuarial data and other evidence never presented to the circuit court or tested in an evidentiary
hearing. But, in my view, that makes it necessary to establish a bright-line rule, one that can be
used to apply Reyes fairly and consistently to those cases now working their way through the
appellate review process, in which juvenile offenders received lengthy term-of-years sentences. I
see no rational alternative for dealing with these cases. The State conceded that the juvenile
defendant in Reyes would not survive his sentence, but surely the State should not be the arbiter
of who benefits from a constitutional protection. We could remand with instructions for the
circuit court to conduct an evidentiary hearing, with the goal of predicting this specific juvenile
offender’s life expectancy—though I think it highly unlikely that any such prediction would
exceed the 64-year figure arrived at by the United States Sentencing Commission for adult
offenders incarcerated in federal prison. Or different panels of this court could continue to
decide—in an arbitrary manner and with no real evidentiary basis—which sentences are
survivable and which are not.
¶ 98 The United States Supreme Court has acknowledged both the difficultly and the necessity
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of establishing certain bright-line rules based on a defendant’s age. In Roper, for example, when
it established 18 years of age as the cutoff for a defendant to receive the special sentencing
considerations afforded to juveniles, the Court noted that its holding would be subject “to the
objections always raised against categorical rules.” Roper, 543 U.S. at 574. Recognizing that
“[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns
18,” the Court nevertheless concluded that, if the proven differences between juveniles and
adults are to be honored at all, “a line must be drawn.” Id. It settled on the age of 18 as “the point
where society draws the line for many purposes between childhood and adulthood.” Id. We face
a similar situation. If the protection in Reyes for juveniles given de facto life sentences is to mean
anything, a line must be drawn that demarks those sentences.
¶ 99 Here, although Sebastian does cite to some ethnicity-based actuarial data of the sort that
we rejected in Perez, the primary argument he makes is that, even based on a conservative life
expectancy figure established by the federal government and relied on by courts, his sentence is a
de facto life sentence. I agree. This court has taken judicial notice on several occasions already of
the fact that the United States Sentencing Commission’s Preliminary Quarterly Data Reports
indicate “that a person held in a general prison population has a life expectancy of about 64
years.” (Internal quotation marks omitted.) Joiner, 2018 IL App (1st) 150343, ¶ 87; Buffer, 2017
IL App (1st) 142931, ¶ 59; see also People v. Sanders, 2016 IL App (1st) 121732-B, ¶ 26. Courts
in other states have likewise cited or relied on figures supplied in the Commission’s reports. See,
e.g. Bear Cloud, 334 P.3d at 142, n.8 (noting that in its reports the Commission “equates a
sentence of 470 months (39.17 years) to a life sentence”); Commonwealth v. Costa, 33 N.E.3d
412, 146, n.3 (Mass. 2015) (same): People v. Wines, No. 336550, slip op. at *s, n.6 (Mich. Ct.
App. Mar. 8, 2018) (citing the reports for the proposition that the average life expectancy of a
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prison inmate is 64 years). Since 2005, the Commission has provided the reports to “Congress,
the judiciary, the executive branch, and the general public with data extracted and analyzed from
sentencing documents submitted to [it] by the courts.” United States Sentencing Commission
Quarterly Data Report, Fiscal Year 2017, (Mar. 16, 2018), available at
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing­
statistics/quarterly-sentencing-updates/USSC-2017_Quarterly_Report_Final.pdf. (last visited
May 21, 2018).
¶ 100 As this court has previously noted, data suggests that this estimate “probably overstates
the average life expectancy for minors committed to prison for lengthy terms,” because it is
based on the average life expectancy of all federal prisoners, many of whom were not
incarcerated as juveniles. Sanders, 2016 IL App (1st) 121732-B, ¶ 26. Time spent in prison
undoubtedly has the potential to reduce one’s life expectancy. Id. But here, there is no need to
determine whether a lower benchmark might be appropriate. Under even this conservative
estimate of 64 years, Sebastian’s 50-year sentence, pursuant to which he will not be released
until the age of 65, is a de facto life sentence.
¶ 101 Although the reasoning in the cases may differ, the results reached in a majority of this
court’s opinions addressing this issue, both before and after Reyes, are consistent with a rule that
sentences resulting in a defendant’s release at the age of 64 or older are de facto life sentences.
See Joiner, 2018 IL App (1st) 150343, ¶¶ 83, 90 (de facto life sentence; 83 years old upon
release); People v. Smolley, 2018 IL App (3d) 150577, ¶ 22 (de facto life sentence) and Illinois
Department of Corrections Website, https://www2.illinois.gov/idoc/Offender/Pages/Inmate
Search.aspx (IDOC website) (last visited April 5, 2018) (providing a projected parole date on
which the defendant will be 80 years old upon release); People v. Evans, 2017 IL App (1st)
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143562, ¶¶ 14, 18, pet. for leave to appeal pending, No. 122701 (not a de facto life sentence; 62
years old upon release); Buffer, 2017 IL App (1st) 142931, ¶¶ 62, 64 (de facto life sentence; 69
years old upon release); People v. Morris, 2017 IL App (1st) 141117, ¶ 30 (de facto life
sentence; 109 years old upon release); People v. Ortiz, 2016 IL App (1st) 133294, ¶ 24, pet. for
leave to appeal pending, No. 121578 (de facto life sentence; 75 years old upon release); Sanders,
2016 IL App (1st) 121732-B, ¶ 27 (de facto life sentence) and IDOC website (67 years old upon
release); Nieto, 2016 IL app (1st) 121604, ¶ 42, pet. for leave to appeal pending, No. 120826
(de facto life sentence; 94 years old upon release); Gipson, 2015 IL App (1st) 122451, ¶¶ 66-67
(not a de facto life sentence; 59 or 60 years old upon release). But see Perez, 2018 Il App (1st)
153629, ¶¶ 37-38 (not a de facto life sentence; 70 years old upon release); Hoy, 2017 IL App
(1st) 142596, ¶ 46, pet. for leave to appeal pending, No. 122911 (not a de facto life sentence; 68
years old upon release); Jackson, 2016 IL App (1st) 143025, ¶¶ 57-58 (not a de facto life
sentence) and IDOC website (66 years old upon release).
¶ 102 I would join those who have adopted 64 years of age, a figure based on the average
projected life expectancy for prisoners arrived at by the United States Sentencing Commission,
as a benchmark for the age upon release that qualifies a sentence as a de facto life sentence.
Because Sebastian’s sentence exceeds even this conservative benchmark, I conclude that it is
subject to our supreme court’s holding in Reyes. Such a sentence may be imposed on a defendant
who was under the age of 18 at the time of his crime only after a hearing in which the circuit
court considers the relevant factors pertaining to the defendant’s youth set forth in Miller and its
progeny. Reyes, 2016 IL 119271, ¶ 10.
¶ 103 I also disagree with the majority’s conclusion that we can discern from the record that the
circuit court in this case considered the Miller factors at sentencing. As the majority
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acknowledges, Sebastian was sentenced in March 2014, more than two years before our supreme
court held in Reyes that Miller even applies in cases where juvenile defendants have received de
facto life sentences. Relying on our supreme court’s decision in Holman, 2017 IL 120655, the
majority finds it sufficient that information bearing on the Miller factors was at least before the
court. Although it is generally true that, on review, this court presumes that the circuit court
considered all evidence offered in mitigation, this presumption breaks down where a “statement
in the record, other than the sentence imposed, indicates that the court did not do so.” (Emphasis
added.) People v. Gramo, 251 Ill. App. 3d 958, 971 (1993).
¶ 104 The judge in this case made it quite clear that she did not think Miller applied. When
defense counsel started to address the Miller factors at sentencing, she stopped him, noted that
she would not be sentencing Sebastian to a sentence of natural life in prison, and invited him to
“tailor [his] argument” accordingly. In my view, these statements are completely antithical to a
presumption that the judge considered the Miller factors.
¶ 105 I find Holman inapplicable here for another reason. The court in that case specifically
found that the juvenile defendant had no rehabilitative potential. Holman, 2017 IL 120655, ¶ 17
(“ ‘the Court believes that this Defendant cannot be rehabilitated’ ”). That conclusion was
reflected in the sentence of natural life without parole that the court imposed. I do not believe
that the court’s conclusion in Holman that the defendant’s sentence “passe[d] constitutional
muster under Miller” can be separated from the clear emphasis it placed, in the preceding
sentence of its opinion, on the circuit court’s conclusion that the defendant’s conduct “placed
him beyond rehabilitation.” Id. at ¶ 50. The court in this case made no such finding, and indeed
sentenced Sebastian to a term of years that, although lengthy, was at the low end of the range of
possible sentences.
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¶ 106 I do not view Holman as a license for this court to routinely look with hindsight on the
sentencing decisions of circuit courts and to presume that the judges who imposed those
sentences carefully considered a set of factors that, before Reyes, they had no reason to believe
even applied. Our supreme court made clear in Holman that “age is not just a chronological fact
but a multifaceted set of attributes that carry constitutional significance.” Holman, 2017 IL
120655, ¶ 44. Under Miller and Montgomery, a sentence of life without parole for a juvenile
offender is only appropriate in the very rarest of cases where “the trial court determines that the
defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable
corruption beyond the possibility of rehabilitation.” Id. ¶ 46.
¶ 107 As those cases make clear, a court cannot reach such conclusions by considering only
“generally mitigating circumstances related to a juvenile defendant’s youth,” but must instead
“consider specifically the characteristics mentioned by the Supreme Court.” Id. ¶¶ 42-44(rejecting the former approach in favor of the latter). The relevant considerations are:
“(1) the juvenile defendant’s chronological age at the time of the offense and any
evidence of his particular immaturity, impetuosity, and failure to appreciate risks and
consequences; (2) the juvenile defendant’s family and home environment; (3) the
juvenile defendant’s degree of participation in the homicide and any evidence of familial
or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence,
including his inability to deal with police officers or prosecutors and his incapacity to
assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Id.¶ 46 (citing Miller, 567 U.S. at 477-78).
There is simply nothing in the record from which one can conclude that the circuit court in this
case considered each of these factors before sentencing Sebastian to 50 years in prison, and,
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indeed, the judge made it clear that she did not believe these factors applied. Moreover, there is
nothing that suggests that the sentencing judge considered Sebastian to be “beyond the
possibility of rehabilitation.”
¶ 108 In sum, I would hold that Sebastian’s 50-year sentence for first degree murder, pursuant
to which he will not be eligible for release until the age of 65, is a de facto life sentence. Because
this sentence was imposed on a juvenile offender without consideration of the factors pertaining
to youth set out in Miller and now made a part of the Illinois Code of Corrections (see 730 ILCS
5/5-4.5-105 (West 2016)), the sentence violates the eighth amendment. I would vacate
Sebastian’s sentence, affirm the judgment of the circuit court in all other respects, and remand
this case for resentencing pursuant to section 5-4.5-105 of the Code of Corrections. I would not
find it necessary to reach the issue of whether Sebastian’s sentence also violates the
proportionate penalties clause of the Illinois Constitution.
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