People v. Gavin

2021 IL App (1st) 182085No. 1-18-2085
Opinion filed March 22, 2021
First Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 06 CR 24305 (02)
)
ANTHONY GAVIN, )
) Honorable
Defendant-Appellant. ) Paula M. Daleo,
) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Walker and Justice Pierce concurred in the judgment and opinion.
OPINION
¶1 After a bench trial, the court found Anthony Gavin guilty of first degree murder for the
shooting death of Eugene Winters. The court allowed Gavin to represent himself for proceedings
on his motion for a new trial, which the trial court denied. Counsel represented Gavin during his
first sentencing hearing, and the court sentenced him to 50 years in prison. This court reversed the
trial court’s judgment and remanded for new posttrial proceedings, finding the trial court gave
insufficient admonishments before allowing Gavin to proceed pro se. People v. Gavin, 2015 IL
App (1st) 130701-U, ¶ 52.
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¶2 On remand, Gavin filed a pro se motion for a new trial (which later-appointed counsel
adopted). In part, Gavin argued that trial counsel was ineffective for (i) failing to cross-examine
and (ii) then failing to call in her case-in-chief a witness who would explain that he could not
identify the shooter and an officer who would corroborate that testimony. After hearing from both
witnesses and Gavin’s trial counsel, the court denied his motion for a new trial. Gavin was
sentenced to 33 years in prison.
¶3 Gavin now repeats his arguments about trial counsel’s ineffectiveness. He also argues his
33-year sentence, when considered with consecutive sentences in unrelated cases, is an
unconstitutional de facto life sentence because he was 17 at the time of the offense. Alternatively,
he argues his sentence is excessive. We disagree with each of his contentions and affirm the trial
court’s judgment.
¶4 Background
¶5 We set out the basic narrative of Gavin’s offense in our order in his first appeal. See id.
¶¶ 4-23. We repeat in detail only the testimony relevant to our analysis.
¶6 Melvin Holmes testified that he lived in the 1600 block of South Third Avenue in
Maywood. On September 20, 2006, around noon, he was outside having a cigarette. As soon as
Holmes closed the door to go back inside, he heard gunshots. He “peeked out the front porch
window” and saw somebody shooting Winters. Holmes identified the shooter as a black male. The
shooter then got into the back seat of blue Mercury, and the car drove away.
¶7 Holmes went outside to talk to Winters and let him know the police were on the way. As
Holmes talked to Winters, the blue Mercury drove back up the block. The same man who Holmes
identified as the shooter got out of the car and came towards Holmes and Winters. Holmes “started
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slowly backing away” up the steps of his house. Winters had taken out a phone, and Holmes
watched as the shooter said, “who the f***you talking to?” and shot Winters in the face. Holmes
had backed all the way into his house and did not see where the shooter then went.
¶8 The next day, Holmes went to the police station to look at a photo lineup. After being
advised about lineup procedures, Holmes identified the driver out a series of five polaroid
photographs. The State did not ask him any questions about identifying Gavin, either in a lineup
or in court. Maywood Police officer Jeremy Pezdek later confirmed that Holmes identified the
driver.
¶9 On cross-examination, Gavin’s counsel focused primarily on his ability to see the driver,
the shooter, and the weapon. She did not ask him any questions about his participation in the photo
lineup or ask him whether he identified Gavin as the shooter. Counsel for Gavin’s co-defendant,
Harvey Bowen, elicited affirmative testimony from Holmes on cross-examination that Bowen was
not the shooter.
¶ 10 At the scene during the shooting were two other witnesses, Cortez Henderson and Denzel
Edwards. They each gave statements to police or prosecutors. In Edwards’s statement, he said that
he rode to the scene with Gavin and Bowen. After getting out of the car, Bowen started arguing
with Winters. Edwards got out of the car then, and Winters told him to walk away. As Winters did
so, Edwards heard one gunshot. He turned and saw Gavin and Bowen standing over Winters. Gavin
and Bowen had guns in their hands, a 9-millimeter and a .32 or .22-caliber, respectively. Edwards
started running and heard four or five more shots. He saw Bowen’s car drive away, come back up
the block, and then heard two or three more gunshots. According to Edwards’s statement, all the
shots sounded like they came from the same gun.
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¶ 11 At trial, Edwards repeatedly testified that he did not recall providing his statement’s details
to Assistant State’s Attorney Maureen O’Brien. In Gavin’s first appeal, we noted that Edwards’s
inability to remember what he told O’Brien did not “directly contradict[ ]” most of his written
statement. Id. ¶ 34. O’Brien also testified that Edwards gave the statement as it was written.
¶ 12 Henderson’s statement does not appear to be in the record. Pezdek testified that he spoke
to Henderson at the Maywood Police Department the afternoon of the shooting. According to
Pezdek, Henderson told him he was in the 1400 block of South Third Avenue on September 20,
2006, when he heard five or six gunshots. He walked to the intersection of Third Avenue and Van
Buren Street, where he saw Winters on the ground. Henderson saw Bowen drive past Winters and
saw Gavin run up to Winters and shoot him several times. Gavin then got back into Bowen’s car,
which drove off. In Gavin’s first appeal, we considered Henderson’s identification to be
substantive evidence. Id. During his testimony, however, Henderson repeatedly said he did not
recall giving a statement to Pezdek.
¶ 13 Five of the six bullets in Winters’s body were from a .32-caliber firearm. Samples from the
left and right rear seats in Bowen’s car came into contact with an item that had released gunshot
residue or were in the environment of a fired gun. Officers eventually recovered a 9-millimeter
handgun and found a fingerprint on it but could not make an identification. Overall, no physical
evidence directly linked Gavin or Bowen to the shooting.
¶ 14 The trial court found Gavin guilty of first degree murder. The court denied Gavin’s motion
for a new trial after allowing him to litigate it himself and sentenced him to 50 years in prison. On
direct appeal, this court reversed, finding the court gave Gavin insufficient admonishments before
allowing him to represent himself. Id. ¶ 52. We remanded for new posttrial proceedings. Id.
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¶ 15 New Posttrial Proceedings
¶ 16 At the hearing for a new trial, Holmes testified that someone got shot in front of his parents’
house about noon on September 20, 2006. Holmes looked out the window and saw a black man
outside. The man got in a car and “took off.” Holmes could not see the driver. After the car drove
away, Holmes went outside and talked to the victim when the car came back. Someone got out of
the car and started walking toward Holmes and the victim. Holmes got only “a glimpse” of the
driver.
¶ 17 As to the shooter, Holmes denied identifying him to the Maywood police, denied seeing
him at the 2011 trial, and denied seeing him in court the day of the motion hearing. Holmes could
not remember being interviewed by defense counsel or defense investigators before his 2011
testimony. When asked whether defense counsel had inquired as to the presence of the shooter in
court, Holmes responded: “No, not that I remember.” Holmes also said defense counsel did not
ask him whether Gavin was the shooter. When counsel pointed Gavin out at the motion hearing,
Holmes said he was not the shooter. Holmes explained he described the shooter to police in 2006
as a “tall, slanky [sic] type of guy with dark skin,” though he admitted he did not see the shooter
“clearly” because “everything happened so fast.”
¶ 18 Pezdek also testified at the motion hearing. Pezdek said Holmes did not identify Gavin as
the shooter in showup identification conducted on September 21, 2006. Pezdek could not recall
whether Gavin’s counsel asked him about Holmes’s non-identification at trial or interviewed him
before trial. After reviewing the trial transcripts to refresh his recollection, Pezdek agreed that
Gavin’s counsel did not cross-examine him about Holmes at all. He also agreed that Gavin’s
counsel did not ask him about Holmes when he testified in the defense case-in-chief.
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¶ 19 Denise Streff, Gavin’s trial counsel, was the final witness. Streff identified an investigation
request form asking her investigator to find and interview Holmes. Notes from Streff’s file, dated
July 21, 2010, and May 4, 2011, did not show one way or the other if she or the investigator
interviewed Holmes. Streff recalled interviewing Holmes, however, and, in response to questions
from the court, she said she might not have taken notes because Holmes “was saying what he said
to the police,” consistent with the police reports. Holmes had identified the shooter as an “African-
American man.” As to Pezdek, Streff explained she “probably” did not interview him.
¶ 20 Motion counsel also asked Streff about her cross-examination of Holmes and Pezdek.
Streff agreed that she did not ask Holmes whether he saw Gavin at the scene. When asked to
explain why she did not question Holmes in this way, Streff said, “There’s always a chance that
[Holmes] said, oh, do you know what, that is the guy I saw do it. So that would be, I think not
good trial practice on my part to do that.” She also agreed she never asked Pezdek whether Holmes
identified Gavin as the shooter.
¶ 21 After hearing arguments from the parties, the court rejected Gavin’s claim of ineffective
assistance of counsel. In its factual findings, the court concluded that Holmes did not give a
“negative identification,” meaning an identification of someone else as the shooter; instead,
Holmes gave a “non-identification,” meaning he could not identify anyone. The court found that
Streff “explained fully why she did not take the chance *** of [Holmes] making an in-court
identification as the shooter,” concluding that her actions were not unsound strategy. The court
also concluded that Gavin’s identification as the shooter “did not rest on what Holmes said but on
the identification by other witnesses.” In light of its conclusions about Gavin’s ineffectiveness
claim (as well as the other claims in his motion), the court denied the motion for a new trial.
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¶ 22 Gavin’s motion counsel immediately asked for reconsideration. After argument, the trial
court clarified its findings: “And that’s really the crux of it. [Holmes] stated that he did not see the
shooter. He did not describe or identify [Gavin] as being the shooter. He just basically said, I did
not see the shooter. I saw the driver.” With that clarification, the court affirmed its denial of the
motion for a new trial.
¶ 23 At sentencing, the State called three witnesses in aggravation. Anthony Trevino, a Cook
County Corrections officer, testified that on October 2, 2007, he got into a fight with an inmate
after the inmate refused to return to his cell. During that fight, he saw Gavin fighting with another
officer, Robert Felton. Trevino saw that Felton was injured, and Gavin started fighting Trevino
too. Eventually, other officers arrived and subdued Gavin.
¶ 24 Felton testified that he was escorting Gavin to the Hearing Board when he saw Trevino in
“an altercation” with another inmate. Felton tried to restrain the other inmate, but then a fight broke
out involving Felton, Trevino, Gavin, and the other inmate. According to Felton, “everybody
involved” was throwing punches, and anyone could have hit anyone else. Felton did not have to
seek medical treatment. He also explained that he had contact with Gavin after the incident and
had no other problems.
¶ 25 Next, a correctional officer at Stateville Correctional Center testified that, in July 2014, he
found in Gavin’s cell a lotion bottle containing a “shank.” But, on cross-examination, he admitted
that Gavin told him the piece of metal was used as a “stinger.” Stingers are metal conductors to
heat microwavable food without a microwave.
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¶ 26 The State’s last aggravation witness, James Byrne, an officer in the Cook County Jail,
testified that he responded to a call of inmates fighting on September 19, 2007. He saw Gavin with
a “shank” that he threw under a door. Byrne recovered the shank later.
¶ 27 Winters’s mother read her victim impact statement, and the State read Winters’s father’s
statement.
¶ 28 Gavin’s primary witness in mitigation was Dr. Robert Hanlon, who the trial court qualified
as an expert in forensic psychology and neuropsychology without objection from the State. He
testified that he evaluated Gavin in light of Miller v. Alabama, 567 U.S. 460 (2012), because Gavin
was 17 and 8 months old at the time of the offense. Hanlon explained that it is “a well-known and
widely accepted fact” that adolescent brains are “qualitatively and quantitatively different” than
adult brains. Brain development into adulthood includes an increased “process of behavior control,
being able to inhibit your tendency to respond impulsively, [and] your ability to understand and
predict the consequences of the decisions that you make and the behaviors that you engage in.”
¶ 29 Hanlon said it was “absolutely” true that Gavin’s brain “had not fully developed” in the
relevant area at the time of his offense. As a result, Hanlon agreed, Gavin’s immaturity “limit[ed
his] ability to make decisions in the same way an adult would at the time of the offense” and
“influenced his behavior at the time of the offense.”
¶ 30 On cross-examination, Hanlon acknowledged that he did not talk to anyone who knew
Gavin at age 17, did not read the trial transcript, did not talk to the officers or detectives involved
in the case, did not talk to witnesses whose statements he reviewed, did not talk to correctional
officers who had experience with Gavin, and did not review psychological assessment of Gavin
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from age 17. The court also heard from several other mitigation witnesses, whose testimony we
detail in our analysis of the sentencing issues.
¶ 31 In ruling, the court acknowledged its obligation to consider Gavin’s age in conjunction
with Miller and juxtaposed that with its view that the offense here “was thought out” because after
shooting Winters the first time, Gavin and Bowen came back and shot him again. The court also
acknowledged Gavin’s “effort to rehabilitate [him]self” while in custody. Considering all of the
evidence, the court resentenced Gavin to 33 years in prison.
¶ 32 In terms of custody credit, Gavin’s counsel explained:
“Since this case came back, his murder sentence originally was the one that
he was in custody on, not the other ones to which he plead guilty. So when you
recalculate, he was arrested on this murder on August 11, 2006. He then was
sentenced to four years [in the Illinois Department of Corrections (IDOC)] on the
Class aggravated battery. And so that would be at 50 percent, and he would have
been in custody on that case August 11, 2006 to August 11, 2008. Then he would
have done the two years on the contraband in the penitentiary, which was a Class
1, and that would have been in custody from August 11, 2008 to August 11, 2010.
Final sentence would have been the robbery, which was reduced from an armed
robbery to Class X, six years IDOC. He would have started that three-year sentence
on August 11, 2010, been released on August 11, 2013.”
Based on those calculations, counsel informed the court that Gavin’s effective custody date for his
murder conviction was August 11, 2013, so he would have 1867 days of custody credit. The court
agreed, and its order reflects that calculation.
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¶ 33 Analysis
¶ 34 Gavin raises four arguments: (i) trial counsel was ineffective for failing to cross-examine
and later call Melvin Holmes to elicit testimony that he was unable to identify the shooter, (ii) trial
counsel was ineffective for failing to cross-examine and later call officer Pezdek to corroborate
Holmes’s non-identification, (iii) his new 33-year sentence, when considered with consecutive
sentences in unrelated cases, is actually an unconstitutional 47-year de facto life sentence, and
(iv) even if his sentence is constitutional, it is excessive.
¶ 35 Ineffective Assistance of Counsel
¶ 36 The basic principles governing both of Gavin’s ineffectiveness claims are straightforward.
We evaluate claims of ineffective assistance of counsel under the familiar standard in Strickland
v. Washington, 466 U.S. 668 (1984). See People v. Utley, 2019 IL App (1st) 152112, ¶ 36. To
demonstrate ineffective assistance, a defendant must show (i) his or her counsel’s performance
was deficient and (ii) any deficient performance prejudiced him or her. Id. When reviewing
Gavin’s claims, we will not disturb the trial court’s factual findings unless they are against the
evidence’s manifest weight. We will review the trial court’s ultimate legal conclusion about
counsel’s ineffectiveness de novo. People v. Velasco, 2018 IL App (1st) 161683, ¶ 137.
¶ 37 Strickland’s Deficiency Prong
¶ 38 Gavin first argues that counsel was ineffective for failing to cross-examine Holmes and for
failing to call him as a defense witness on the issue of his “non-identification of Gavin.” He also
argues counsel was ineffective for failing to elicit testimony from Pezdek about Holmes’s non-
identification of Gavin. To show that counsel was deficient in this way, Gavin must show that
“counsel’s representation fell below an objective standard of reasonableness” with a strong
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presumption that counsel’s inaction was the result of sound trial strategy. People v. King, 316 Ill.
App. 3d 901, 912-13 (2000). Gavin acknowledges the questions of who to call as a witness and
the manner of cross-examination are traditionally matters of strategy. Id. at 913 (decision whether
to call certain witness “within the realm of strategic choices”); People v. Smith, 177 Ill. 2d 53, 92
(1997) (decision whether to cross-examine “a matter of trial strategy”). That said, even strategic
decisions are subject to challenge where “no reasonably effective defense attorney, facing similar
circumstances, would pursue such a strategy.” King, 316 Ill. App. 3d at 916.
¶ 39 The trial court credited Streff’s explanation of her decision not to call or cross-examine
Holmes about his non-identification—namely, her fear that he could implicate Gavin as the shooter
for the first time on the stand. Gavin challenges the trial court’s conclusion about Streff’s strategy,
relying on King and People v. Skinner, 220 Ill. App. 3d 479 (1991). We find both cases
distinguishable.
¶ 40 In King, we found no reasonable strategy in trial counsel’s “failure to call an available alibi
witness who would have bolstered an otherwise uncorroborated defense.” King, 316 Ill. App. 3d
at 916. The alibi witness’s testimony, if believed, would have made the defendant’s commission
of the crime impossible for lack of opportunity. See id. at 914-15. Here, in contrast, the trial court
found, and Holmes’s testimony confirmed, he did not identify someone else as the shooter; instead,
he did not identify anyone. More importantly, the reason for his non-identification seems to have
been based on his own inability, not Gavin’s absence from the scene. When asked whether he saw
the shooter, Holmes said, “not clearly” because “everything happened so fast.” Because Holmes’s
testimony was not exonerating, we will not discredit counsel’s strategic choice to avoid the risk
that his testimony would flip on the stand.
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¶ 41 We find Skinner distinguishable for similar reasons. There we found counsel ineffective
for failing to cross-examine a witness who failed to identify the defendant until six months after a
burglary. Skinner, 220 Ill. App. 3d at 484. The witness, however, “had a clear and unobstructed
view of defendant as he exited the neighboring building carrying the television set in question.”
Id. Here, as we said, Holmes testified that he did not have a clear view of the shooter because of
the incident’s quickness. The decision to forgo cross-examining Holmes on the issue of his non-
identification, where that non-identification is explained at least in part by Holmes’s inability to
observe the shooter, is not deficient performance. Gavin has given us no reason to second-guess
the trial court’s factual conclusion that Streff’s questioning of Holmes was reasonable, or at least
not unreasonable, trial strategy.
¶ 42 Gavin then argues, “no reason existed for Streff not to question Detective Pezdek regarding
Holmes’s non-identification of Gavin.” As to the deficiency prong, Streff alluded to a strategic
reason for not cross-examining Pezdek:
“So the fact that Melvin Holmes did not identify you [Gavin] was a very good fact that we
had. But, of course, I wouldn’t want to contaminate it by giving Mr. Holmes the
opportunity to change his testimony, or having an officer say, oh, you know, maybe Mr.
Holmes did point to Mr. Gavin.” (Emphasis added.)
Gavin challenges this strategy as to Pezdek by emphasizing that his testimony about Holmes’s
non-identification would be admissible, a contention we do not doubt for our purposes. See People
v. Tisdel, 201 Ill. 2d 210, 219-21 (2002); People v. Zimmerman, 2018 IL App (4th) 170695, ¶ 77.
But to say that counsel could have elicited Pezdek’s testimony about Holmes’s non-identification
is not to say that her performance was deficient for deciding not to.
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¶ 43 Strickland’s Prejudice Prong
¶ 44 Even if we were to find Streff’s performance deficient, Gavin suffered no prejudice from
the failure to question Pezdek or further question Holmes about Holmes’s non-identification. To
show prejudice, Gavin would have to demonstrate “that the probability that counsel’s errors
changed the outcome of the case is sufficient to undermine confidence in the outcome.” (Internal
quotation marks omitted.) People v. McCarter, 385 Ill. App. 3d 919, 935 (2008). The probability
of a different outcome need not exceed 50%, but we do not consider the alleged deficiency in
isolation; instead, we look at the totality of the evidence to determine the impact of the missing
evidence on the factfinder’s “overall picture of events.” Id. at 935-36.
¶ 45 The State had two witnesses who identified Gavin. Edwards’s identification was
memorialized in his written statement, and Pezdek testified that Henderson identified Gavin. We
acknowledge that, at trial, Edwards and Henderson both claimed not to remember identifying
Gavin before trial. But, whatever weakness imparted to Edwards’s and Henderson’s testimony by
their memory lapses is balanced against the similar weakness in Holmes’s non-identification—his
inability to clearly see the shooter. We also cannot discount that one of the witnesses received a
call from Winters saying that “Ant” shot him, and another witness testified that Gavin was known
as “Little Ant.” In light of the evidence identifying Gavin as the shooter compared to Holmes’s
qualified non-identification, we do not think counsel failed to examine or call witnesses who “may
[have been] exonerating.” See People v. Davis, 203 Ill. App. 3d 129, 140-41 (1990).
¶ 46 We also emphasize Streff’s ability to explain Holmes’s non-identification in closing
argument without the testimony Gavin claims Streff should have elicited. During closing
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argument, Streff explained that “only two witnesses,” Edwards and Henderson, identified Gavin
and that Holmes “never identifies Anthony [Gavin].” Streff went on to argue that “if Anthony
Gavin was the shooter, Melvin Holmes would have identified him.” Simply put, deciding to forgo
cross-examination of Pezdek and Holmes did not impede counsel’s strategy of arguing Holmes’s
non-identification.
¶ 47 Gavin has failed to show that his trial counsel performed ineffectively, whether for lack of
deficient performance, lack of prejudice, or both. People v. Burton, 2015 IL App (1st) 131600,
¶ 22 (“[f]ailure to make the requisite showing of either deficient performance or sufficient
prejudice defeats the claim” (internal quotation marks omitted)). The trial court correctly denied
his motion for a new trial based on trial counsel’s alleged ineffectiveness.
¶ 48 Sentencing
¶ 49 The trial court originally sentenced Gavin to 50 years in the department of corrections. We
vacated that sentence and remanded for new posttrial proceedings for reasons unrelated to the
substantive merit of his sentence. See Gavin, 2015 IL App (1st) 130701-U, ¶ 49. Because Gavin
was 17 at the time of the offense, the trial court sentenced Gavin under section 5-4.5-105 of the
Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West 2018)) and imposed a 33-year prison
sentence.
¶ 50 Gavin first alleges his new sentence violates the eighth amendment, the decision in Miller,
567 U.S. 460, and the later cases interpreting Miller. Because Gavin was a 17-year-old juvenile at
the time of the offense, the basic principles are well settled. Miller bars mandatory sentences of
life without parole for juveniles under 18 at the time of the crime. Id. at 465. In Montgomery v.
Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 724 (2016), the Court held that Miller applied
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retroactively. In People v. Holman, 2017 IL 120655, ¶ 40, our supreme court extended Miller
protection to discretionary sentences of life without parole. Under Miller and its progeny, to
sentence a juvenile defendant to a life sentence, or a de facto life sentence, a court must consider
both a juvenile defendant’s age and its hallmark features and the possibility of the defendant’s
rehabilitation. Miller, 567 U.S. at 477-79. Our legislature has codified factors that the court must
consider in determining whether a life sentence is appropriate for a particular juvenile offender.
See 730 ILCS 5/5-4.5-105(a)(1)-(9) (West 2018).
¶ 51 Of course, all these protections only go into effect if the juvenile offender is serving a life
sentence or de facto life sentence. Our supreme court has said a sentence greater than 40 years is
a de facto life sentence for a juvenile offender. People v. Buffer, 2019 IL 122327, ¶ 42. There can
be no dispute that considered on its own, Gavin’s 33-year sentence is not a de facto life sentence.
¶ 52 Gavin argues, however, that we must also account for the sentences imposed for three
unrelated offenses that he had to serve consecutively with his 33-year murder sentence: (i) a 2005
robbery offense for which he received a six-year sentence, (ii) a 2007 aggravated battery offense
for which he received a four-year sentence, and (iii) a 2007 possession of contraband in a penal
institution offense for which he also received a four-year sentence. Gavin cites cases from New
Jersey and Ohio for the proposition that the consecutive terms for his unrelated offenses should be
considered together with his 33-year murder sentence to reach a combined total of 47 years. See
State v. Zuber, 152 A.3d 197 (N.J. 2017); State v. Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288,
76 N.E.3d 1127.
¶ 53 The State does not dispute that Gavin was obligated to serve these sentences consecutively
but argues that Gavin cannot combine consecutive prison terms for unrelated offenses to get to the
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47-year total for purposes of an eighth amendment claim against his murder sentences. We need
not decide whether consecutive sentences for unrelated offenses can be tied together when
determining the length of a juvenile sentence because, even if they can, Gavin received credit for
the consecutive sentences in his unrelated offenses, and so his time in prison will not exceed 40
years.
¶ 54 Gavin relies on People v. Peacock, 2019 IL App (1st) 170308, to argue that we should not
consider day-for-day credit when determining whether a sentence constitutes a de facto life
sentence. We agree wholeheartedly with the reasoning in Peacock and do not depart from it here.
Gavin’s situation, however, differs.
¶ 55 When considering the length of the juvenile offender’s sentence in Peacock, the State
argued that the court could account for day-for-day good conduct credit that could have been but
was not yet awarded to the defendant. Id. ¶ 19 (“Defendant’s receipt of day-for-day credit is not
guaranteed.”). Where the department of corrections retains discretion to decline an award of good
time credit, we cannot consider that credit when determining a sentence’s length. Id. But Gavin
offers no reason why we cannot consider credit that IDOC has actually awarded.
¶ 56 During argument at Gavin’s second sentencing hearing, counsel explained that Gavin
served only three years for the armed robbery offense, two years for the aggravated battery, and
two years for the possession of contraband in a penal institution. As Gavin argues now, we can
take judicial notice of the IDOC website (id. ¶ 4 n.1), and it shows that all of Gavin’s sentences
imposed before his murder sentence have been discharged. The Unified Code of Corrections
defines “discharge” as “the final termination of a commitment to the Department of Corrections.”
730 ILCS 5/3-1-2(g) (West 2018). Gavin argues that credit can be revoked “at any time” but cites
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no authority for the proposition that IDOC can revoke credit on a sentence a defendant has already
served. We similarly have found no authority, either in the Unified Code of Corrections or the
Illinois Administrative Code, suggesting that IDOC retains the power to revoke credit for someone
whose sentence has been discharged.
¶ 57 So, even if we account for all of the consecutively served sentences, Gavin’s aggregate
sentence is still only 40 years when considering time actually served. This is the maximum non-
life sentence for juvenile offenders in Illinois. See Buffer, 2019 IL 122327, ¶ 42. Because Gavin’s
sentence is not a life sentence, neither the United States nor Illinois Constitutions’ protections for
juvenile offenders are implicated.
¶ 58 Gavin also argues that his sentence is excessive even if it is not unconstitutional. When
sentencing, trial courts must account for both “the seriousness of the offense and *** the objective
of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. We review the trial
court’s sentencing decision for an abuse of discretion, and though the court’s discretion is not
unfettered, we must be careful not to substitute our judgment for that of the trial court. People v.
Haley, 2011 IL App (1st) 093585, ¶¶ 63-65.
¶ 59 The trial court made extensive findings after hearing testimony from witnesses on both
sides. The trial court found the offense to be “cold” and “brutal” because Winters was initially
alive, and then Gavin and Bowen returned to shoot him again. The court distinguished this murder
from “a lucky kill shot on a drive-by shooting,” describing it as “something that was thought out.”
Against that, the court acknowledged that it was “somewhat heartened” that Gavin spent his time
in prison learning to be a barber and avoiding gangs and “brute force.”
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¶ 60 The court openly struggled, finding it “very difficult *** to know that [Gavin] made an
effort to rehabilitate [him]self,” including his expressed desire to work to help other young people
who came from adoptive families. Based on the mitigating evidence, the court found “some hope
for [Gavin] to become a good citizen.” After making its specific findings, the court concluded:
“After taking into consideration all that I have heard in the hearing, the mitigation, expert
testimony, the doctor’s testimony, [Gavin]’s prior criminal history, Miller v. Alabama and its
progeny, I’m going to resentence [Gavin] on the murder to 33 years.”
¶ 61 Gavin emphasizes his rehabilitative potential, but the trial court explicitly acknowledged
it. Gavin also argues that the court gave “insufficient consideration” to his difficult childhood.
Still, the court considered Gavin’s childhood, finding he “had a very supportive family” who was
with him in court. The court acknowledged that Gavin’s birth mother “had to give [him] up” but
concluded that Gavin’s adoptive parents “supported [him] and nurtured [him] during [his] school
age.” Gavin does not suggest that the trial court’s conclusion on this score is incorrect.
¶ 62 Ultimately, Gavin asks us to reweigh the aggravating and mitigating evidence differently
from the trial court. We do not see an abuse of discretion on this record. Indeed, we commend the
trial court for its detailed sentencing findings.
¶ 63 Affirmed.
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No. 1-18-2085
No. 1-18-2085
Cite as: People v. Gavin, 2021 IL App (1st) 182085Decision Under Review: Appeal from the Circuit Court of Cook County, No. 06-CR-
24305(02); the Hon. Paula M. Daleo, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Christopher R. Bendik, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, Veronica Calderon Malavia, and Karin V. Sullivan,
Appellee: Assistant State’s Attorneys, of counsel), for the People.
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