People v. Royer

2020 IL App (3d) 170794

Opinion filed October 20, 2020
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) Bureau County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-17-0794
v. ) Circuit No. 99-CF-47
)
RANDY L. ROYER, ) Honorable
) Cornelius J. Hollerich,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justice McDade concurred in the judgment and opinion.
Justice Schmidt dissented, with opinion.
____________________________________________________________________________

OPINION

¶1 The defendant, Randy L. Royer, appeals the second stage dismissal of his postconviction

petition, arguing that his sentence is unconstitutional under the eighth amendment because the

sentencing court failed to consider his youth and its attendant characteristics.

¶2 I. BACKGROUND

¶3 The defendant was charged with one count of first degree murder (720 ILCS 5/9-1(a)(2)

(West 1998)). The indictment stated that, on August 3, 1999, the defendant struck Timothy Dildine
 on the head with a baseball bat, which caused Dildine’s death. The defendant was 17 years old at

the time.

¶4 The case proceeded to a jury trial, beginning on April 19, 2000. The evidence established

that Jennifer Tappen was the defendant’s ex-girlfriend. They dated from February to June of 1999.

During the summer of 1999, the defendant lived with Jennifer; Jennifer’s father, Robert Tappen;

and her brothers. Dildine would come and stay the night as well, as he was a friend of the

defendant. On the night of August 2, 2000, Jennifer and Dildine went to Marquette beach around

7 p.m. They had a bonfire and went swimming. Later that evening, Robert and his girlfriend,

Annette Rexroad, arrived and the four of them spent the night talking, drinking, and smoking

marijuana. Eventually, Jennifer and Dildine laid a blanket on the sand and fell asleep in the

morning hours of August 3.

¶5 While Jennifer and Dildine were at the beach, the defendant, Victor Ceballos, and a couple

of other guys were drinking, smoking marijuana, and playing cards at a friend’s apartment. The

defendant also put “four or five hits [of acid] on his tongue” around 10 p.m. Over the course of the

evening, the defendant had “[a]t least eight or nine hits of LSD.” They were talking about the fact

that Jennifer and Dildine were at the beach together. The entire evening the guys were needling

the defendant and telling him that he should go down to the beach “and do something about it.”

While the guys were needling him, defendant was “pretty messed up,” according to Ceballos. He

was angry, crying, disoriented, had bloodshot eyes, and had trouble walking, talking, and

controlling where he was moving around. A little before 6 a.m., Ceballos and the defendant went

for a ride to the beach and saw Dildine’s car. They stopped, and the defendant got out of the car.

Ceballos did not see a bat or anything in the defendant’s hand. Ceballos stayed in the car.

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¶6 Rexroad left the fire and started walking away from the beach around 6 a.m. when she met

the defendant. The defendant asked her where Jennifer and Dildine were, and she pointed to where

they were sleeping on the beach. He had a bat in his hand. The defendant started walking toward

them. Rexroad yelled for Jennifer and Dildine, but they did not hear her. The defendant walked

over to where they were laying and started hitting Dildine with the bat four or five times. Rexroad

started yelling and saying, “you killed him.” Jennifer woke up and started yelling, and then Robert

came running towards them. Jennifer woke up and saw the defendant standing over her. She did

not see a baseball bat in the defendant’s hands. Robert and Rexroad were screaming. Jennifer

looked down and saw that she was covered in blood. Dildine was convulsing, and Jennifer noticed

that his head was bleeding. Ceballos stated that the defendant was hysterical and screamed four or

five times, “I killed him.” He said that the defendant was shaken, crying, disoriented, trembling,

had bloodshot eyes, and had trouble walking.

¶7 The defendant ran and got into Dildine’s car. The defendant drove Dildine’s car down, and

the defendant and Robert put Dildine in the car. The defendant was saying that he messed up. The

defendant drove Dildine to the hospital. The defendant entered the emergency room (ER) after

pulling the car up in the driveway and said to a nurse, “He’s dying, he needs help.” The defendant

appeared nervous, desperate, and “jittery.” The nurse followed the defendant out to the car. When

she came out to the car, she saw Dildine laying between the seats with a head wound and blood

splattered all over. She stated that the defendant stood outside the car, “[l]ike a little boy that

probably didn’t know what he could do to help at that point and time.” He shuffled from one foot

to the other like he was worried. The defendant then ran away. Dildine was brought into the ER.

He was in poor condition and had to be intubated.

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¶8 Dr. Merle Piacenti testified that he was a radiologist at St. Margaret’s Hospital. He was

admitted as an expert in radiology. He reviewed Dildine’s X-rays and stated that he had three main

fractures and some small fractures in his skull. In the 20 years that he had practiced radiology, this

was one of the worst skull fractures he had ever seen. Dildine died the next day from blunt force

trauma to his head.

¶9 The defendant was cooperative with the police and confessed. He said that he had taken

about nine hits of acid between 8:30 p.m. on August 2 and 4:30 a.m. on August 3. The guys were

ribbing him and saying that it was not right for Jennifer to be with Dildine. He became angry when

they kept teasing him about it, and he could not stop thinking about it. The defendant broke down

crying during the interview, stating that he did not mean to hurt Dildine and he was sorry. After

Dildine began receiving help, the defendant said he went to the Tappen residence to try to explain

what he had done and why. He concluded the interview by saying that he was sorry and told the

officers to tell Dildine that he was sorry because he did not know that Dildine was dying. The

defendant also gave a written statement, which stated that he took nine hits of acid and “[f]rom

that point on all I could think about was [Jennifer], so I started freaking out.” The end of the

statement said, “I got there, I went crazy, I don’t know what was happening.” The jury found the

defendant guilty of first degree murder.

¶ 10 A presentence investigation report (PSI) indicated that the defendant had a past juvenile

criminal history. In 1993, he was adjudicated a delinquent minor for committing the offenses of

residential burglary, misdemeanor criminal damage to property, felony criminal damage to

property, misdemeanor theft, felony theft, and misdemeanor battery. He was sentenced to a one-

year term of probation. In 1994, he was adjudicated delinquent for committing the offense of

reckless conduct. All prior orders were to remain in effect, and he was ordered to be placed in an

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 emergency shelter or group home out of the city of Aurora. The case was then dismissed in 1995,

and he returned to the custody of his father. In 1996, he was adjudicated delinquent for committing

burglary and misdemeanor criminal damage to property in Kendall County and burglary in Kane

County and was sentenced to a one-year term of probation. He was found in violation of his

probation for committing the offense of domestic battery, and his probation was extended. He was

required to complete an intensive out-patient substance abuse program and family counseling. His

probation was terminated unsuccessfully in 1998, and he was ordered to serve 30 days in the Kane

County Youth Home.

¶ 11 The PSI stated that the defendant’s mother was deceased. His father had two daughters

from separate relationships. The defendant had attended Aurora East High School, but was referred

to the Aurora Education Center, where he was enrolled for five quarters before he withdrew. He

was an above-average student for the classes he completed. The defendant began using marijuana

at age 11, alcohol at age 12, and cocaine and LSD at age 13. The defendant received mental health

treatment on three separate occasions—in 1994, 1995, and 1998. Upon discharge in 1994, he was

diagnosed with socialized conduct disorder, oppositional defiant disorder, and mixed substance

abuse. In 1995, he was diagnosed with mixed substance abuse and adjustment disorder-

adolescence. The defendant’s treatment goals in 1998 included stabilizing his mood and behavior,

promoting general functioning, dealing with stress and frustration, enhancing control over

impulses, and managing his anger. Upon his discharge, he was diagnosed with polysubstance

abuse disorder, alcohol abuse, and depressive disorder. His mental health evaluations characterized

him as impulsive and reckless.

¶ 12 A sentencing hearing was held on August 15, 2000. Douglas Bernabei testified that he was

the chief of police for the city of Spring Valley. On July 28, 1999, Francisco Rodriguez filed a

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 battery complaint, alleging that the defendant damaged his vehicle and struck him once in the head

with a baseball bat. Jennifer had come home to the room she shared with the defendant, and the

defendant noticed hickeys on her neck and Rodriguez standing outside. The defendant approached

Rodriguez and asked if he was responsible for the hickeys. The defendant then hit Rodriguez and

his car with the baseball bat. The defendant was charged with battery and criminal damage to

property. Another individual had also stated that the defendant hit him in the head with a baseball

bat in April 1999. He did not file a police report, and the defendant was never charged. The State

also asked the court to consider in aggravation the evidence from trial and the PSI.

¶ 13 Debra Lynn Ward testified that she was the defendant’s paternal aunt. She stated that the

defendant never knew his mother as she deserted him when he was a baby. His father remarried

Lisa when the defendant was two or three, and they were married for about five years. His father

then married Terry for about seven years. Before and after Terry, multiple women lived with the

defendant and his father. Terry and the defendant’s mother ultimately died of AIDS. The

defendant’s father also had AIDS. Ward described the home environment as “combative.” She

stated that anytime she was around, the defendant’s father “would be fighting a lot with the current

Mrs.” and the defendant would be in the middle of it. The defendant was abused; his father would

hit him hard and leave bruises. The defendant grew up around a lot of drugs and alcohol and little

supervision. The defendant “was pretty much on his own.” Ward stated:

“I think [the defendant] pretty much felt alone because everytime [sic] another, the

first wife, when she had her own child, he kind of got shoved to the side. She pushed

him down the steps once in anger. Then with Terry, when she met my brother, her

kids were in foster care, and after she got them back [the defendant] was pushed

out again, he was always the bad one out, always doing something to her kids, he

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 was the bad guy. And my brother was always fighting with Terry for years about

[the defendant], *** he was always the subject of fights because her kids were more

important.”

¶ 14 Donald Royer testified that he was the defendant’s grandfather. Every time he went to visit,

his son would be drinking and would smell like marijuana. Donald testified that when the

defendant was 10 years old, he climbed out of the window of the house and slept in a car in order

to escape from his father.

¶ 15 The defendant gave a statement in allocution, in which he apologized to Dildine’s family

and said that he did not mean to hurt Dildine. He stated:

“[Dildine] was my friend. What happened wasn’t supposed to happen. I have thought about

it for a whole year. If I could trade places with [Dildine], I would. I never once tried to

blame nobody else. I know what I did, and I know what I did was wrong. I’m sorry.”

¶ 16 The State said that the defendant faced a sentence of 20 to 60 years’ imprisonment. The

State said there was no relative chance of rehabilitation in this case and pointed to the defendant’s

juvenile record and the counseling and hospitalizations that “had no effect on him.” The State

asked the court to sentence the defendant to the maximum 60-year sentence, noting that it believed

the crime to be exceptionally brutal, heinous, and indicative of wanton cruelty. Had it not been for

the United States Supreme Court’s requirement that such brutal nature be proven beyond a

reasonable doubt, the State said it would ask the extended term sentence of life imprisonment be

imposed.

¶ 17 Defense counsel argued that the crime was not premeditated and that the defendant was “a

young man who acted out of immaturity, out of lack of background and training, out of jealousy

and out of drug use.” Counsel stated that the defendant “had no opportunity to know anything other

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 than drugs, alcohol and an abusive family life.” Counsel further noted that the defendant confessed

and showed remorse.

¶ 18 The court sentenced the defendant to the maximum of 60 years’ imprisonment, stating:

“In considering the sentence, the factors I find in mitigation are remorse and the

youth. However, the fact that he was a young man does not mitigate in my

estimation sufficiently to prevent me for sentencing him severely. The evidence

here shows that violence and anger was well known and used in the family. The

incident in question was done in the Court’s opinion in a cold, calculated manner

because he picked up a bat and went looking for someone. The factors further in

aggravation are that he attacked a man that was sound asleep, with no offer or ability

to defend himself. The series of blows in the Court’s opinion indicate wanton

cruelty to the fact that you attack a sleeping man in the nature of heinous and brutal.

Considering everything, I find that the society deserves to be protected from [the

defendant], given his background, almost a custom and usage of violence as a daily

occurrence aggravated by drugs, two prior incidents in the same year within months

of the sentence, it is the order and sentence of this Court that you are sentenced to

the Illinois Department of Corrections for the term as requested by the State’s

Attorney of sixty years.”

The court noted that the defendant would serve the entire 60-year sentence.

¶ 19 The defendant filed a motion to reconsider sentence. In denying the motion, the court

stated:

“As far as the rehabilitative potential of the defendant, I was reading his [PSI], is

that he had received this type of treatment through the school system or through

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 other institutions of the State of Illinois and the notation noted on it was that he was

resentful of authority. So the resentful to authority when he was in rehabilitation

programs, led the Court to conclude this man just does not like authority and that

he is not of the type that should be in my opinion not punished to the extent that I

sentenced him. The incidents immediately prior to this murder demonstrated to me

is that he likes to solve problems by taking a baseball bat and swinging and hitting

people. That is the type of conduct that I cannot see. That if there was rehabilitative

potential that he would have been engaged in had the rehabilitative program that he

was in succeeded. There was none and he demonstrated that there was no possibility

of rehabilitation. Now his youthfulness and remorse, I did take into consideration,

but it was insufficient in the Court’s opinion not to impose a sentence that I did.”

¶ 20 On direct appeal, the defendant argued, inter alia, that his sentence was excessive. In an

unpublished order filed on April 11, 2002, this court upheld the defendant’s conviction and

sentence, finding that the court considered the evidence presented in mitigation, that such evidence

was outweighed by the brutal and heinous nature of the murder, and that the sentence was not

manifestly disproportionate to the nature of offense. People v. Royer, No. 3-00-0719 (2002)

(unpublished order under Illinois Supreme Court Rule 23).

¶ 21 On September 28, 2015, the defendant filed a pro se postconviction petition, which is the

subject of this appeal. Citing Miller v. Alabama, 567 U.S. 460 (2012), and its progeny, the

defendant argued that his sentence violated the eighth amendment and the proportionate penalties

clause. The court advanced the petition to the second stage and appointed counsel. Counsel

adopted the defendant’s petition and advanced the argument. The State filed a motion to dismiss,

arguing that Miller did not apply and the sentence was not disproportionate to the offense.

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¶ 22 The case proceeded to a second-stage hearing. The court stated that the PSI contained

information regarding the factors enumerated in People v. Holman, 2017 IL 120655, ¶ 46, so by

considering the PSI, the sentencing court considered the factors. The court granted the State’s

motion to dismiss.

¶ 23 II. ANALYSIS

¶ 24 On appeal, the defendant argues that the court erred in dismissing his postconviction

petition at the second stage. Specifically, he argues that his 60-year sentence is unconstitutional

under the eighth amendment and the proportionate penalties clause because the sentencing court

failed to consider his youth and its attendant circumstances when sentencing him to the maximum

sentence.

¶ 25 The eighth amendment of the United States Constitution prohibits cruel and unusual

punishment. U.S. Const., amend. VIII. It has been well established that “[w]hen the offender is a

juvenile and the offense is serious, there is a genuine risk of disproportionate punishment.”

Holman, 2017 IL 120655, ¶ 33. Therefore, “children are constitutionally different from adults for

purposes of sentencing.” Miller, 567 U.S. at 471. As our awareness of the “incompetencies

associated with youth” have increased (id. at 477), the caselaw has continued to evolve. In 2005,

the United States Supreme Court determined that the eighth amendment prohibited capital

sentences for juveniles who commit murder. Roper v. Simmons, 543 U.S. 551, 578 (2005). This

was followed by decisions in 2010 and 2012 that the eighth amendment prohibited mandatory life

sentences for juveniles who commit nonhomicide offenses (Graham v. Florida, 560 U.S. 48, 74

(2010)) and murder (Miller, 567 U.S. at 489). This rule espoused in Miller has since been held to

be retroactive. Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016); People v. Davis,

2014 IL 115595, ¶ 39.

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¶ 26 More recently our supreme court has considered the effects of Miller. In Holman, the court

held that both mandatory and discretionary life sentences violate the eighth amendment unless the

sentencing court considers as mitigation the defendant’s youth and its attendant characteristics.

Holman, 2017 IL 120655, ¶¶ 37, 40. The court stated that a juvenile defendant may still be

sentenced to life imprisonment “but only if the trial court determines that the defendant’s conduct

showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the

possibility of rehabilitation.” Id. ¶ 46. The court may only make this determination after

considering the mitigating characteristics of youth, which

“include, but are not limited to, the following factors: (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.

See also id. ¶ 44. These factors are referred to as “the Miller factors.” Id. ¶ 50. Our legislature has

codified these factors, and now requires that, when a person commits an offense and is under 18

years of age, the court

“shall consider the following additional factors in mitigation in determining the

appropriate sentence:

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 (1) the person’s age, impetuosity, and level of maturity at the time

of the offense, including the ability to consider risks and consequences of

behavior, and the presence of cognitive or developmental disability, or both,

if any;

(2) whether the person was subjected to outside pressure, including

peer pressure, familial pressure, or negative influences;

(3) the persons’ family, home environment, educational and social

background, including any history of parental neglect, physical abuse, or

other childhood trauma;

(4) the person’s potential for rehabilitation or evidence of

rehabilitation, or both;

(5) the circumstances of the offense;

(6) the person’s degree of participation and specific role in the

offense, including the level of planning by the defendant before the offense;

(7) whether the person was able to meaningfully participate in his or

her defense;

(8) the person’s prior juvenile or criminal history; and

(9) any other information the court finds relevant and reliable,

including an expression of remorse, if appropriate. However, if the person,

on advice of counsel chooses not to make a statement, the court shall not

consider a lack of an expression of remorse as an aggravating factor.” 730

ILCS 5/5-4.5-105 (West 2018).

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¶ 27 Finally, in People v. Buffer, 2019 IL 122327, ¶¶ 40-41, the court held that these prior

holdings also applied to de facto life sentences, which included sentences greater than 40 years.

The court stated that, in order to prevail on a claim under this line of cases, a defendant who

committed the offense while a juvenile must show (1) the defendant was subject to a life sentence,

whether mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to

consider youth and its attendant characteristics, as set forth in Holman. Id. ¶ 27.

¶ 28 There is no dispute that the defendant’s 60-year sentence constitutes a de facto life sentence

under Buffer. Therefore, we turn to the question of whether the sentencing court properly

considered the defendant’s youth and its attendant characteristics.

¶ 29 Holman does not solely require the court to “consider specifically” the Miller factors

(Holman, 2017 IL 120655, ¶¶ 43, 46), but requires the court to consider them as mitigation. See

id. ¶¶ 37, 44-45; see also 730 ILCS 5/5-4.5-105 (West 2018). We cannot say that the court did so.

Here, when sentencing the defendant, the court stated:

“In considering the sentence, the factors I find in mitigation are remorse and the

youth. However, the fact that he was a young man does not mitigate in my

estimation sufficiently to prevent me for sentencing him severely. The evidence

here shows that violence and anger was well known and used in the family. The

incident in question was done in the Court’s opinion in a cold, calculated manner

because he picked up a bat and went looking for someone. The factors further in

aggravation are that he attacked a man that was sound asleep, with no offer or ability

to defend himself. The series of blows in the Court’s opinion indicate wanton

cruelty to the fact that you attack a sleeping man in the nature of heinous and

brutal.”

13
 The court stated that it found remorse and youth as mitigation, stating that it did not provide enough

mitigation to prevent a severe sentence considering the aggravating evidence. The court then

moved on to discuss the aggravating circumstances, including the violent, angry home

environment the defendant grew up in. The court thus specifically considered one of the Miller

factors, the defendant’s family and home environment, as aggravation instead of mitigation. This

directly contradicts the edict of Miller and its progeny that the court consider these characteristics

of youth as mitigation. Though the court may have had evidence relating to the rest of the Miller

factors, we cannot say that it considered the evidence as mitigation, particularly where it did not

explicitly mention it, other than his rehabilitative potential, and where it considered one of the

factors as aggravation.

¶ 30 Even accepting the State’s contention that the court’s comments do not show that it

considered the defendant’s family and home environment as aggravation, we find that merely

having evidence of the Miller factors before the court is not enough to show that the court

considered it in mitigation. In Buffer, the court concluded that the sentencing court had failed to

consider the defendant’s youth and its attendant characteristics in imposing the sentence. Buffer,

2019 IL 122327, ¶ 42. During sentencing, the court had stated that it considered the evidence at

trial, the seriousness of the offense, the PSI, the financial impact of incarceration, the defendant’s

age and lack of dependents, the evidence in aggravation and mitigation, his substance abuse issues

and treatment, the potential for rehabilitation, the possibility of alternative sentencing, the

statement in allocution, the victim impact statement, and all relevant and reliable hearsay from the

sentencing hearing. Id. ¶ 5. Nonetheless, the supreme court stated that “the record [did] not indicate

that the court considered defendant’s youth and its attendant characteristics.” Id. ¶ 46. Based on

this, other courts have found that the mere awareness of the defendant’s age and consideration of

14
 the evidence that was presented does not show that the court specifically considered the Miller

factors as mitigating evidence. See People v. Peacock, 2019 IL App (1st) 170308, ¶ 24; People v.

Thornton, 2020 IL App (1st) 170677, ¶ 25; People v. Harvey, 2019 IL App (1st) 153581, ¶ 13.

¶ 31 In this case, it is clear that the proceedings at trial and sentencing and the PSI all developed

evidence of the various factors, including, for example, prior mental health evaluations

characterizing the defendant as impulsive and reckless, encouragement from his peers to “do

something” about Dildine and Jennifer, and the history of abuse and neglect the defendant received

at home. The mere inclusion of this information in the evidence before the court was not enough

to show that it considered it in mitigation.

¶ 32 In coming to this conclusion, we reject the State’s reliance on People v. Walker, 2018 IL

App (3d) 140723-B, and Holman, 2017 IL 120655, for the proposition that the evidence presented

at sentencing was sufficient to show that the court considered the defendant’s youth and its

attendant characteristics. In Walker, this court stated that, where the sentencing hearing transcripts

and PSI provided information regarding the defendant’s age and life circumstances, “there [was]

no reasonable possibility that the trial court, during defendant’s sentencing hearing, was unaware

of, or failed to consider, the fact that defendant was 17 years old with a grossly unstable living

environment when he committed murder.” Walker, 2018 IL App (3d) 140723-B, ¶¶ 23-24. The

court in Holman found that the evidence presented to the court was considered and passed

constitutional muster under Miller. Holman, 2017 IL 120655, ¶¶ 48-50. First, both Walker and

Holman were decided before our supreme court decided Buffer, where, as stated above (supra

¶ 30), the mere inclusion of such information as evidence at sentencing was not enough. Buffer,

2019 IL 122327, ¶ 46. Second, unlike the sentencing court here, there was no evidence in Walker

and Holman that the court may have considered one of the Miller factors as aggravation instead of

15
 mitigation. Third, Holman is factually distinguishable, where the defendant told his attorney not

to offer any mitigating evidence and the supreme court specifically found that none of the Miller

factors were present to mitigate the defendant’s sentence. Holman, 2017 IL 120655, ¶¶ 48-50.

¶ 33 Because the sentencing court failed to consider the defendant’s youth and its attendant

characteristics as mitigation, his sentence violates the eighth amendment. See Buffer, 2019 IL

122327, ¶ 46. While the defendant’s postconviction petition was dismissed at the second stage,

“the proper remedy is to vacate defendant’s sentence and to remand for a new sentencing hearing.”

Id. ¶ 47. On remand, the defendant “is entitled *** to be sentenced under the scheme prescribed

by section 5-4.5-105 of the Unified Code of Corrections.” Id.; 730 ILCS 5/5-4.5-105 (West 2018).

As we grant relief on this issue, we do not consider the defendant’s alternative argument.

¶ 34 III. CONCLUSION

¶ 35 The judgment of the circuit court of Bureau County is reversed and remanded.

¶ 36 Reversed and remanded.

¶ 37 JUSTICE SCHMIDT, dissenting:

¶ 38 The majority finds defendant’s de facto life sentence unconstitutional under the eighth

amendment. According to the majority, the sentencing court failed to properly consider his youth

and its attendant circumstances as mitigating factors as required by Miller and its progeny. I

disagree. The sentencing court received and considered evidence of defendant’s youth and its

attendant circumstances at the sentencing hearing. Accordingly, I would find the discretionary

de facto life sentence defendant received constitutional under Miller.

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¶ 39 In Holman, our supreme court explained that a discretionary life sentence for a juvenile

offender is constitutional so long as the sentencing court considered defendant’s youth and its

attendant circumstances at sentencing.

“Those characteristics include, but are not limited to, the following factors:

(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. [Citation.]” Holman, 2017 IL 120655, ¶ 46.

These factors were codified by our legislature. See 730 ILCS 5/5-4.5-105 (West 2018).

¶ 40 The record in this case shows that defendant’s youth and its attendant circumstances were

detailed at length and considered by the trial court at the sentencing hearing. In fact, the bulk of

the defense’s argument centered around defendant’s age. The defense also argued that defendant

acted out of impulsivity and immaturity. The PSI contained a detailed history of defendant’s

youthful characteristics and his home life. The PSI described defendant as an excellent student,

having prior mental health problems, and having twice assaulted another person with a baseball

bat. In both instances, defendant assaulted the other person based on their relationships with

Tappan. Defendant’s criminal history showed that defendant lacked any rehabilitative potential.

In 1993, defendant was adjudicated delinquent for residential burglary, felony theft, misdemeanor

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 theft, and battery. Five months later, the State filed a petition to revoke defendant’s probation.

Defendant admitted to the allegations in the petition that he committed reckless conduct. In 1996,

defendant was found delinquent again after he was charged with burglary and criminal damage to

property. The same year, defendant was found delinquent again for committing burglary. Four

months after that, defendant’s probation was revoked for committing domestic battery.

¶ 41 Additionally, the sentencing hearing revealed that defendant’s mother abandoned him at a

young age. Defendant’s father abused drugs, and drug use was prevalent in the family. Defendant

also received mental health treatment on three occasions. Defendant received diagnosis for conduct

disorder, oppositional defiant disorder, mixed substance abuse, adjustment disorder, polysubstance

abuse disorder, alcohol abuse, and depressive disorder. Although defendant received mental health

treatment in the past, there is no evidence that defendant was incompetent, unable to deal with

police or prosecutors, or unable to assist his attorney.

¶ 42 After hearing the evidence at trial and sentencing, as well as the arguments of the

prosecution and defense, the sentencing court found that defendant’s youth and remorse were

mitigating factors, but it found that these factors were insufficient to prevent it from imposing a

severe sentence. The court rejected the notion that defendant committed the crime out of

impulsivity. Instead, the court found that defendant committed the murder “in a cold, calculated

manner because [defendant] picked up a bat and went looking for [the victim.]” What is more, this

court rejected defendant’s claim that the sentencing court failed to properly consider his youth and

potential for rehabilitation as mitigating factors. People v. Royer, No. 3-00-0719 (2002)

(unpublished order under Illinois Supreme Court Rule 23). The fact that Miller was decided after

the direct appeal does not mean this court’s conclusion is wrong.

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¶ 43 Moreover, in Holman, our supreme court recognized that “a juvenile defendant may be

sentenced to life imprisonment without parole, but only if the trial court determines that the

defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable

corruption beyond the possibility of rehabilitation.” Holman, 2017 IL 120655, ¶ 46. Defendant

here did not act out of impulsivity. To the contrary, defendant murdered the victim in a cold,

calculated, and premeditated manner. He got upset. He continued to drink and take drugs with his

friends throughout night. Then, in the early morning, he took a baseball bat, sought out the victim,

found the victim asleep, and beat him over the head with the baseball bat. The victim later died

from injuries that one doctor described as the worst he had ever seen. In fact, this court found that

“[t]he offense was clearly brutal and heinous given the evidence that defendant attacked [the

victim] while he was sleeping, repeatedly struck him with a baseball bat and inflicted injuries of a

severity rarely seen by the medical professionals who testified.” Royer, No. 3-00-0719..

Defendant’s conduct showed irretrievable depravity, permanent incorrigibility, and irreparable

corruption beyond the possibility of rehabilitation. Further, it is clear from defendant’s repeated

criminal behavior that he had a complete disregard and disrespect for the punishments he already

received. He had no rehabilitative potential. The trial court’s sentencing passes the constitutional

requirements of Miller.

¶ 44 The majority insists that the sentencing court improperly considered defendant’s violent,

angry home environment as a factor in aggravation. The majority misapprehends the trial court’s

statement. The statement in question is:

“In considering the sentence, the factors I find in mitigation are remorse and

the youth. However, the fact that he was a young man does not mitigate in

my estimation sufficiently to prevent me for sentencing him severely. The

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 evidence here shows that violence and anger was well known and used in

the family. The incident in question was done in the Court’s opinion in a

cold, calculated manner because he picked up a bat and went looking for

someone. The factors further in aggravation are that he attacked a man that

was sound asleep, with no offer or no ability to defend himself. The series

of blows in the Court’s opinion indicate wanton cruelty in the fact that you

attack a sleeping man in the nature of heinous and brutal.”

Contrary to the majority’s interpretation, the sentencing court’s statement does not show that it

considered defendant’s home life in aggravation. The court’s comment about defendant’s home

life came immediately after it explained that it had considered defendant’s youth as a mitigating

factor. In other words, the court merely mentioned that defendant’s home life and environment did

not mitigate enough to prevent the court from imposing a severe sentence. In any event, the

sentencing court never stated that it considered defendant’s home environment as an aggravating

factor. Instead, the court limited its discussion of aggravating factors to defendant’s lack of

rehabilitative potential and the cold, calculated manner in which he murdered the victim. The court

did not improperly consider defendant’s home environment as an aggravating factor.

¶ 45 As I would find defendant’s sentence constitutional, I must address defendant’s alternative

argument that the truth-in-sentencing statute, section 3-6-3(a)(2)(i) of the Unified Code of

Corrections (Code) (730 ILCS 5/3-6-3(a)(2)(i) (West 2000)), which requires him to serve his entire

sentence without the possibility of parole, violates the Illinois Constitution’s proportionate

penalties clause (Ill. Const. 1970, art. I, § 11). Defendant argues that this provision of the Code is

unconstitutional as applied to him and similarly situated juvenile defendants.

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¶ 46 The Illinois Supreme Court has held that the proportionate penalties clause is “co-extensive

with the eighth amendment’s cruel and unusual punishment clause.” People v. Patterson, 2014 IL

115102, ¶ 106 (citing In re Rodney H., 223 Ill. 2d 510, 518 (2006)). Therefore, if defendant fails

to demonstrate an eighth amendment violation, his proportionate penalties claim must also fail.

¶ 47 Defendant claims that the truth-in-sentencing statute is unconstitutional based on a newly

enacted juvenile sentencing statute. Generally, this new law provides that defendants under the age

of 21 at the time they committed first degree murder are eligible for parole review after serving 20

years of their sentence. 730 ILCS 5/5-4.5-110 (West 2018). This statute applies to sentencing

hearings on or after June 1, 2019. Defendant’s sentencing hearing occurred well before the new

statute became effective. Consequently, he is ineligible for parole hearings. According to

defendant, this new change in the law demonstrates that the truth-in-sentencing statute, which

requires him to serve 100% of his de facto life sentence, violates the proportionate penalties clause.

Because the Illinois Supreme Court and the United States Supreme Court have both found that a

juvenile life sentence does not violate a defendant’s eight amendment rights, I would find the truth-

in-sentencing statute is constitutional as applied to defendant under the proportionate penalties

clause.

¶ 48 The Illinois Supreme Court and the United States Supreme Court have already held that,

under the eighth amendment, a juvenile may be sentenced to life imprisonment so long as the

sentence is discretionary, and the court had the opportunity to consider defendant’s youth in

mitigation. Miller, 567 U.S. at 489; Buffer, 2019 IL 122327, ¶ 24; Holman, 2017 IL 120655, ¶ 40;

People v. Reyes, 2016 IL 119271, ¶ 9. To the extent that Miller requires the trial court to consider

the juvenile’s age at the time of the event, that requirement was satisfied here. As discussed above,

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 the trial court considered the Miller factors at sentencing. No violation of defendant’s eight

amendment occurred. Therefore, his proportionate penalties claim also fails.

¶ 49 Even though our legislature chose to enact the new law allowing certain juvenile offenders

to receive parole hearings after 20 years of imprisonment, the statute did not create a new

constitutional right. The statute explicitly requires such hearings for offenders sentenced after June

1, 2019. Had the legislature intended to create a broad rule to allow offenders like defendant to

have the opportunity to receive a parole hearing, the legislature would not have included an

effective date. Simply because the legislature created a new rule for sentencing juvenile defendants

does not change the fact that discretionary life sentences have been held constitutional. Again, this

statute does not change the longstanding law holding that juvenile offenders may be sentenced to

a discretionary life sentence.

¶ 50 I would affirm the trial court.

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 No. 3-17-0794

Cite as: People v. Royer, 2020 IL App (3d) 170794

Decision Under Review: Appeal from the Circuit Court of Bureau County, No. 99-CF-47;
the Hon. Cornelius J. Hollerich, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Karalis, and Steven Varel, of State
for Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:

Attorneys Geno Caffarini, State’s Attorney, of Princeton (Patrick
for Delfino and Thomas D. Arado, of State’s Attorneys Appellate
Appellee: Prosecutor’s Office, of counsel), for the People.

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