People v. Nieto

2016 IL App (1st) 121604-B

No. 1-12-1604

Opinion filed June 30, 2020.
Second 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 4475
)
MICHAEL NIETO, ) The Honorable
) Rosemary Grant Higgins,
Defendant-Appellant. ) Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Pucinski and Coghlan concurred in the judgment and opinion.

OPINION

¶1 Defendant Michael Nieto appeals from the trial court’s order summarily dismissing his

pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West

2012)). On appeal, defendant argues that his sentence is unconstitutional as applied under the

eighth amendment to the United States Constitution (U.S. Const., amend. VIII), and Illinois’

proportionate penalties clause (Ill. Const. 1970, art. I, § 11). In our original opinion, we vacated

defendant’s sentence and remanded for resentencing pursuant to Miller v. Alabama, 567 U.S.

460 (2012), and Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016). We affirmed the

judgment in all other respects.
No. 1-12-1604

¶2 Four years later, our supreme court denied the State’s petition for leave to appeal but

directed us to vacate our prior judgment and

“consider the effect of this Court’s opinions in People v. Buffer, 2019 IL 122327, and

People v. Holman, 2017 IL 120655, on the issue of whether defendant’s sentence

constitutes a de facto life sentence in violation of the Eighth Amendment and Miller v.

Alabama, 567 U.S. 460 (2012), and determine if a different result is warranted.” People

v. Nieto, No. 120826 (Ill. Mar. 25, 2020) (supervisory order).

Having already vacated our prior judgment, we now consider the matter in light of Buffer and

Holman and find that the same result is warranted. 1

¶3 I. BACKGROUND

¶4 A. Trial

¶5 The evidence presented at defendant’s jury trial generally showed that on July 14, 2005,

defendant, age 17, was riding in a black Ford Expedition with three other Latin Kings. While in a

residential neighborhood, the young men encountered a red Jeep Cherokee whose occupants,

victim Richard Soria and victim Israel Fernandez, allegedly used a sign disrespecting the Latin

Kings. The Ford chased the Jeep. Ultimately, defendant, the front-seat passenger, shot at the

Jeep, fatally shooting Soria in the head and injuring Fernandez. Defendant subsequently told his

brother-in-law that defendant had just “lit up some flakes” and that one victim received a “dome

shot.” The jury found defendant guilty of the first degree murder of Soria and the aggravated

battery with a firearm of Fernandez. Additionally, the jury found that defendant personally

discharged a firearm that proximately caused Soria’s death.

1
Justice Coghlan has replaced Justice Mason, who retired while the State’s appeal was pending.
-2-
No. 1-12-1604

¶6 B. Sentencing

¶7 The presentence investigative report (PSI) stated, among other things, that defendant’s

highest level of education was the eighth grade. He was expelled from his freshman year of high

school for fighting. In 2006, defendant failed the GED exam but planned to retake it and earn a

business degree. Although defendant was unemployed, he had previously done some remodeling

work and sold drugs to support himself.

¶8 According to the PSI, defendant stated that his father was in poor health, having been

shot and stabbed at various times, and had been incarcerated for defendant’s entire life.

Defendant also stated that he was primarily raised by his maternal grandmother because his

mother was a drug addict. For two years, defendant and his mother lived with her boyfriend. Her

boyfriend, however, decided he did not want defendant to live with them. As a result, defendant

lived with his paternal grandfather in Texas, where he remained until 2002. At that time,

defendant’s mother summoned him back to Chicago due to his grandmother’s poor health.

Defendant received counseling after his grandmother’s death and believed that he could benefit

from further counseling but had not requested it because it was “too much trouble.” Defendant

subsequently lived with friends or on his own. Defendant also reported that his only friend

happened to be a gang member with a criminal record. We note that defendant’s brother-in-law

testified that at the time of the offense, defendant occasionally lived with his family.

¶9 Defendant, who smoked marijuana daily, had committed armed robbery, attempted

robbery, and possession of cannabis as a minor. Tragically, he had pending charges of

involuntary manslaughter and reckless discharge of a firearm for accidentally killing his younger

brother, Elias Nieto, on December 24, 2005, after the present offense.

-3-
No. 1-12-1604

¶ 10 At sentencing, Detective Robert Girardi testified he learned that defendant possessed a

gun that jammed and then discharged, accidentally shooting Elias. Defendant held Elias’ hand on

the way to the hospital and unsuccessfully tried to resuscitate him. Detective Girardi was

informed that defendant had asked his mother to come to the police station, but she refused to see

him. Following the detective’s testimony, the State presented the victim impact statements of

Soria’s father, sister, and brother-in-law. The State argued that defendant deserved the maximum

sentence available, while defense counsel argued that even the aggregate minimum sentence of

51 years would ensure that defendant would not be released until he was almost 70 years old.

¶ 11 The trial court stated that it considered all the evidence, arguments, and defendant’s

offenses. In aggravation, the court found that defendant shouted gang slogans and used a firearm

belonging to his gang to fire multiple times at unarmed victims, who were Satan Disciples.

Additionally, no serious provocation was involved. Afterward, defendant told fellow gang

members that he “lit up some flakes.” The court also found that defendant and his companions

used police scanners to get information and avoid prosecution. The court further found that not

only was defendant’s criminal conduct likely to recur, but it did recur, given the shooting of

Elias. The court also observed that defendant blamed Elias for defendant’s own decision to tell

the police that Satan Disciples shot Elias, which potentially caused the police to pursue rival

gang members. Nonetheless, the court recognized defendant’s “considerable remorse for his

brother’s death and regret at what he considered to be an accidental shooting.”

¶ 12 With respect to gang activity, the court considered deterrence:

“I do find that his ongoing criminal activity is an indication to this court that his

gang, the Latin Kings, and the Satan Disciples as well, should know that this sentence is

necessary to deter others from committing similar crimes. The use of gangs and gang

-4-
No. 1-12-1604

violence for revenge, either on the Satan Disciples’ part or on the Latin Kings’ as a

consequence of this action or Mr. Nieto’s action.”

The court also rejected defense counsel’s suggestion that defendant lacked the opportunity to

receive therapy. Instead, the court found the PSI showed he had the opportunity but decided it

was too much trouble to take advantage of. The court further stated, “[h]is character and attitude

as displayed over the course of his life does not indicate to me significant rehabilitative

potential.”

¶ 13 With that said, the court also stated as follows:

“I have taken into consideration your young age. I have taken into consideration

the fact that everybody, no matter what crimes they commit, can do something to change

their lives. You will have to do that something, Mr. Nieto, in the Illinois Department of

Corrections. But you can do something. Perhaps you can work with the gangs there and

somehow rectify the wrongs you did when you committed the murder of Richard Soria,

[the aggravated battery with a firearm of] Israel Fernandez, and inadvertently the death of

your own brother.

You can change it by pointing out to those people who perhaps will be able to

someday walk the streets and advise them and work with the programs in the Illinois

Department of Corrections to change their lives. You can be a pivotal person in that

change if you are willing to do that. I do believe that there is something good in you. I

don’t believe that on the streets you are capable of doing that good. I believe that the

influence of the gangs and the strength and control they had over you in addition to your

character did not permit you the opportunities that you will have in the Illinois

-5-
No. 1-12-1604

Department of Corrections to help change somebody else’s life and maybe save a life or

two.

I believe that when you are shaking your head you are doing it in a positive way,

and that you can do something positive for your mother, for your brother, and rectify his

death and somehow make good on that.”

The court sentenced defendant to 35 years in prison for first degree murder, 25 years for the

personal discharge of a firearm, and 18 years for aggravated battery with a firearm, all to be

served consecutively for a total of 78 years.

¶ 14 Defendant moved for the court to reconsider, given that he was only 17 years old on the

date of the offense and would be required to serve 75.3 years of his sentence after receiving

sentencing credit. Defendant argued that his sentence did not adequately reflect his potential for

rehabilitation and restoration to useful citizenship. Furthermore, defendant argued that recent

studies showed long prison sentences do not affect deterrence and that the court’s statement

regarding sending a message to gang members was against the prevailing academic view. The

court denied defendant’s motion.

¶ 15 C. Direct Appeal

¶ 16 We affirmed the judgment on direct appeal, rejecting, among other things, defendant’s

assertion that his sentence was excessive. People v. Nieto, No. 1-09-0670 (2011) (unpublished

order under Illinois Supreme Court Rule 23). Specifically, defendant argued that his 78-year

sentence was the equivalent of a life sentence and negated the possibility of restoring him to

useful citizenship. We stated, “[t]here is no dispute that this young man represents a rather tragic

figure and that the arc of his life has been unredeemably sad.” Nonetheless, we adhered to the

legal presumption that the trial court considered all mitigating evidence, absent any contrary

-6-
No. 1-12-1604

indication. We did not, however, question whether the trial court was able to discern what factors

were aggravating and mitigating.

¶ 17 D. Petition Under the Act

¶ 18 On February 21, 2012, defendant filed a pro se petition under the Act, raising several

claims not at issue here. The trial court summarily dismissed defendant’s petition on April 5,

2012, and defendant filed a timely notice of appeal. Subsequently, however, the United States

Supreme Court held in Miller, 567 U.S. at 470, 476, 479, that the eighth amendment prohibits

sentencing schemes that mandate the imposition of life sentences without parole even on

juveniles who commit homicide. This is because mandatory life sentences prevent a trial court

from considering the ways in which juveniles are constitutionally different from adults. Id. at

474. This decision in Miller followed two other landmark cases involving sentencing

requirements for juvenile offenders. Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding that

the eighth amendment prohibits a trial court from imposing the death penalty where the offender

was under 18 years of age when the offense was committed); Graham v. Florida, 560 U.S. 48,

74 (2010) (prohibiting the imposition of a life sentence without parole on juveniles who did not

commit homicide). On appeal, defendant asserts only that his sentence violates Miller.

¶ 19 II. ANALYSIS

¶ 20 A. The Act

¶ 21 The Act provides a method by which persons under criminal sentence in this state can

assert that their convictions were the result of a substantial denial of their rights under the United

States Constitution, the Illinois Constitution, or both. People v. Tate, 2012 IL 112214, ¶ 8. The

Act’s forfeiture rule, however, provides that “[a]ny claim of substantial denial of constitutional

rights not raised in the original or an amended petition is waived.” (Internal quotation marks

-7-
No. 1-12-1604

omitted.) People v. Williams, 2015 IL App (1st) 131359, ¶ 14 (quoting 725 ILCS 5/122-3 (West

2012)). This rule is more than a suggestion, and appellate courts generally may not overlook

forfeiture caused by a defendant’s failure to include an issue in his petition. Id.

¶ 22 B. Forfeiture

¶ 23 Defendant has conceded on appeal that he did not raise this as-applied constitutional

challenge in his petition, which was filed prior to Miller. He also contends, however, that this

particular claim is not subject to forfeiture. In our original opinion, we agreed, notwithstanding

the State’s argument to the contrary. Although the supreme court’s mandate did not direct us to

reconsider our prior finding that forfeiture does not apply, we observe that the opinions issued

over the last four years would not have led us to a different determination.

¶ 24 1. Davis

¶ 25 Just as we did when addressing forfeiture in our initial opinion, we begin our tortuous

journey with People v. Davis, 2014 IL 115595, a case that does not discuss forfeiture. There, the

defendant asserted, in a motion for leave to file a successive petition under the Act, that his

mandatory life sentence was unconstitutional. The trial court, however, denied leave. Id. ¶ 9.

While his appeal was pending, the decision in Miller was issued. Id. ¶ 10. The appellate court

determined that Miller applied and granted the defendant relief. Id.

¶ 26 Before the supreme court, the defendant argued he could challenge, in a collateral

proceeding, the statutory scheme requiring him to be sentenced to natural life in prison for a

crime committed as a juvenile because Miller rendered his sentence void. Id. ¶¶ 4, 24. Our

supreme court found that while a statute is void ab initio where facially unconstitutional, the

sentencing statute requiring the defendant to be sentenced to natural life in prison was not

facially unconstitutional because it could be validly applied to adults. Id. ¶¶ 5, 25, 27, 30.

-8-
No. 1-12-1604

¶ 27 Nonetheless, the court concluded that the mandatory term of natural life without parole

was unconstitutional as applied to this juvenile defendant. Id. ¶ 43. Additionally, Miller applied

retroactively to the defendant’s collateral proceeding because Miller created a new substantive

rule. Id. ¶¶ 34, 38. Specifically, Miller placed a particular class of persons covered by the statute

beyond the State’s power to impose a particular category of punishment. Id. ¶ 39. The supreme

court also found the defendant established cause for not raising the claim in an earlier proceeding

because Miller’s new substantive rule was not previously available. Id. ¶ 42.

¶ 28 2. Thompson

¶ 29 The following year, our supreme court issued its decision in People v. Thompson, 2015

IL 118151. There, the defendant was convicted of two counts of first degree murder, committed

when he was 19 years old, and was sentenced to natural life in prison. Id. ¶¶ 6-7. In contrast to

the defendant in Davis, defendant Thompson’s petition, filed pursuant to section 2-1401 of the

Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)), did not challenge the

constitutionality of his sentence (Thompson, 2015 IL 118151, ¶¶ 13-14). The petition was

dismissed on the State’s motion, and the defendant appealed, arguing for the first time that his

sentence was unconstitutional as applied under Miller. Id. ¶¶ 15-17.

¶ 30 Before the supreme court, the defendant recognized that Miller expressly applied to

minors under 18 years of age but argued that Miller’s policy concerns applied with equal force to

a 19-year-old. Id. ¶ 21. Additionally, the defendant argued that because his as-applied

constitutional challenge constituted a challenge to a void judgment, he could raise it at any time.

Id. ¶ 30.

¶ 31 Our supreme court observed that judgments are void where jurisdiction is lacking or

where a judgment is based on a facially unconstitutional statute, which is void ab initio. Id.

-9-
No. 1-12-1604

¶¶ 31-32. The defendant’s as-applied challenge, however, fit within neither category. Id. ¶ 34.

Additionally, the supreme court rejected the defendant’s assertion that it was illogical to permit a

defendant to raise facial constitutional challenges to a sentence at any time but not as-applied

challenges. Id. ¶¶ 35-36.

¶ 32 A facial challenge requires demonstrating that a statute is unconstitutional under any set

of facts. Id. ¶ 36; but cf. People v. Harris, 2018 IL 121932, ¶ 53 (characterizing the defendant’s

contention that Miller should extend to all young adults under age 21 as a facial challenge). In

contrast, an as-applied challenge requires a showing that the statute is unconstitutional under the

specific circumstances of the challenging party. Thompson, 2015 IL 118151, ¶ 36. As a result, “it

is paramount that the record be sufficiently developed in terms of those facts and circumstances

for purposes of appellate review.” Id. ¶ 37.

¶ 33 The supreme court found the record contained neither information about how science on

juvenile maturity and brain development applied to the defendant’s case, nor any factual

development of whether Miller’s rational should be extended to minors over 18 years old. Id.

¶ 38. Accordingly, “defendant forfeited his as-applied challenge to his sentence under Miller by

raising it for the first time on appeal.” Id. ¶ 39. This rationale would suggest that a defendant

may overcome forfeiture where the record contains all facts necessary to review his as-applied

challenge, raised for the first time on appeal.

¶ 34 Moreover, the supreme court rejected the defendant’s reliance on People v. Luciano,

2013 IL App (2d) 110792, and People v. Morfin, 2012 IL App (1st) 103568. Presumably,

defendant Thompson relied on those cases because, in each instance, the defendant obtained

relief where raising Miller for the first time on appeal. See People v. Thompson, 2014 IL App

(1st) 121729-U, ¶¶ 16, 18, 20-21.

- 10 -
No. 1-12-1604

¶ 35 In Luciano, the defendant, who committed murder at age 17, argued for the first time on

appeal from the denial of his petition filed under the Act that his life sentence was

unconstitutional as applied under Miller. Luciano, 2013 IL App (2d) 110792, ¶¶ 41, 46. The

reviewing court found, contrary to Thompson, that even an as-applied sentencing challenge could

be raised at any time. Id. ¶¶ 41, 46-48. The court ultimately granted the defendant relief. Id. ¶ 89.

Additionally, the reviewing court in Morfin determined that Miller applied retroactively,

although apparently, the State did not argue forfeiture in that case. Morfin, 2012 IL App (1st)

103568, ¶¶ 11, 20, 56.

¶ 36 Despite that defendant Thompson relied on Luciano to support his contention that he

could raise his as-applied challenge for the first time on appeal, as defendant Luciano did, our

supreme court did not state that Luciano was wrong in that regard. Instead, Thompson

distinguished Luciano and Morfin on their merits: specifically, the defendants in those cases

were minors, whereas the defendant in Thompson was not. See Thompson, 2015 IL 118151, ¶ 43.

We further observe that while Thompson found the appellate court’s holdings were consistent

with Davis’ determination that Miller applies retroactively (id. ¶ 42), forfeiture presents a distinct

legal issue. See, e.g., People v. Reed, 2014 IL App (1st) 122610, ¶ 94 (addressing forfeiture and

retroactivity as separate issues). 2 When considered as a whole, Thompson implies that forfeiture

does not apply to juveniles’ as-applied eighth amendment challenges under Miller,

notwithstanding the general rule prohibiting as-applied challenges raised for the first time on

appeal.

2
Retroactivity may, as a practical matter, preclude a finding of forfeiture or waiver. See, e.g.,
In re Rolandis G., 232 Ill. 2d 13, 28-29 (2008) (no forfeiture on direct appeal when new rule announced
after the appeal was filed); see also People v. Stechly, 225 Ill. 2d 246, 268 (2007) (same); People v.
Craighead, 2015 IL App (5th) 140468, ¶ 17 (finding the defendant showed cause and prejudice with
regard to the Miller claim raised in a successive petition under the Act because Miller applies
retroactively).
- 11 -
No. 1-12-1604

¶ 37 3. Montgomery

¶ 38 The United States Supreme Court in Montgomery then indicated that state courts must

give Miller effect in collateral proceedings. The Court, like our supreme court in Davis, held that

Miller announced a substantive rule, which courts must apply retroactively. Montgomery, 577

U.S. at ___, 136 S. Ct. at 732. Specifically, substantive rules set forth categorical constitutional

guarantees that place certain laws and punishments beyond the State’s power to impose. Id. at

___, 136 S. Ct. at 729. The Court found that while Miller did not bar punishment for all juvenile

offenders, it did bar life without parole for all but the rarest juvenile offender and, consequently,

was substantive. Compare Id. at ___, 136 S. Ct. at 734, with Miller, 567 U.S. at 483 (“Our

decision does not categorically bar a penalty for a class of offenders or type of crime—as, for

example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain

process—considering an offender’s youth and attendant characteristics—before imposing a

particular penalty.”). Additionally, the Court found that Miller’s procedural component did not

change the result, as substantive legal changes may, on occasion, be attended by a procedure

permitting a prisoner to demonstrate that he falls within the category of persons no longer subject

to punishment. Montgomery, 577 U.S. at ___, 136 S. Ct. at 734-35.

¶ 39 Moreover, when a new substantive rule of constitutional law controls a case’s outcome,

state collateral review courts must give the rule retroactive effect. Id. at ___, 136 S. Ct. at 729. A

court lacks authority to leave in place a conviction or sentence that violates a substantive rule,

regardless of whether the judgment became final before the rule was announced. Id. at ___, 136

S. Ct. at 731. The Court further stated, “[i]f a State may not constitutionally insist that a prisoner

remain in jail on federal habeas review, it may not constitutionally insist on the same result in its

own postconviction proceedings.” Id. at ___, 136 S. Ct. at 731.

- 12 -
No. 1-12-1604

¶ 40 Our original opinion found that after Davis and Montgomery, Miller clearly applies

retroactively to collateral proceedings. We also found, however, that Thompson and Montgomery

suggested that Illinois’ procedural rules regarding forfeiture could not be applied to juvenile

defendants raising Miller claims, emphasizing Montgomery’s unconditional finding that state

courts lacked authority to leave intact a sentence that violates Miller.

¶ 41 4. Merriweather

¶ 42 Following our initial decision in this case, the Fourth District of this court disagreed. In

People v. Merriweather, 2017 IL App (4th) 150407, ¶¶ 5, 14, the juvenile offender asserted for

the first time on appeal from the denial of leave to file a successive postconviction petition that

his 70-year sentence for first degree murder was a de facto life sentence that was unconstitutional

as applied to him. The State argued, however, that the defendant could not first raise this as-

applied constitutional challenge on appeal, and the reviewing court agreed. Id. ¶ 14. The court,

relying on Thompson, noted the crucial differences generally observed between facial and as-

applied challenges and disagreed with our original determination that Thompson’s treatment of

Luciano and Morfin supported overlooking forfeiture. Id. ¶¶ 15-19. The court did not, however,

acknowledge Montgomery’s strongly worded statement that courts lack the authority to leave in

place a sentence that violates Miller. See Montgomery, 577 U.S.at ___, 136 S. Ct. at 731.

Furthermore, Merriweather did not identify any area in which the record before it was lacking.

Consequently, we are not persuaded by Merriweather.

¶ 43 5. Holman

¶ 44 After Merriweather was decided, our supreme court issued People v. Holman, 2017 IL

120655. There, the State argued that the defendant forfeited his as-applied Miller claim by,

among other things, failing to raise it in his motion for leave to file a successive petition. Id. ¶ 27.

- 13 -
No. 1-12-1604

The supreme court agreed with the defendant’s contention that the State had forfeited any

forfeiture under the facts of that case but added that it would nonetheless have reached the merits

of his claim. Id. ¶¶ 28-29.

¶ 45 The supreme court noted the differences between facial and as-applied challenges, but

found that in Davis, the supreme court had “excused the defendant’s failure to raise an as-applied

Miller claim sooner because the record was sufficiently developed to address that type of claim.”

Id. ¶¶ 29-31. We note that Davis did not provide the explanation offered in Holman. We also

note that neither Davis, nor Holman’s explanation of Davis, used the word forfeiture.

¶ 46 In any event, Holman found that “Thompson instructs that a defendant must present an

as-applied constitutional challenge to the trial court in order to create a sufficiently developed

record. Davis creates a very narrow exception to that rule for an as-applied Miller claim for

which the record is sufficiently developed for appellate review.” Id. ¶ 32. Because all necessary

facts were in the record, and in the interests of judicial economy, the supreme court chose to

address the merits of the defendant’s claim. Id.

¶ 47 This would seemingly suggest that forfeiture does not apply to a Miller claim where the

record is sufficiently developed. Unfortunately, Holman expressly declined to resolve the

appellate court’s dispute regarding whether forfeiture applies in those circumstances. Id. ¶ 32

n.5.; but cf. People v. Buffer, 2019 IL 122327, ¶ 29 (stating that clear, uniform, predictable,

constitutional standards are especially desirable in the context of the eighth amendment).

Consequently, Holman is a wash when it comes to forfeiture.

¶ 48 Under the present state of case law, we abide by our original determination. Miller was

issued only after the circuit court dismissed defendant’s petition and the record is sufficiently

complete to review defendant’s claim. We can conceive of no policy to be furthered by finding

- 14 -
No. 1-12-1604

forfeiture occurred here. See also People v. Warren, 2016 IL App (1st) 090884-C, ¶¶ 48-49

(finding that the reviewing court could grant the defendant relief despite raising his Miller

challenge for the first time on appeal from denial of leave to file his successive postconviction

petition). We now address the merits of defendant’s claim.

¶ 49 C. Applying Miller

¶ 50 1. The Original Opinion

¶ 51 When we issued our original opinion, several Miller-related questions had not been

settled. We nonetheless found that a juvenile defendant’s sentences may cumulatively constitute

a de facto life sentence under the eighth amendment. See People v. Gipson, 2015 IL App (1st)

122451, ¶ 61. We also determined that following Montgomery, the requirements of Miller

applied to both mandatory and discretionary life sentences. Furthermore, we determined that

defendant’s cumulative 78-year sentence constituted a discretionary, de facto life sentence, while

noting that even the minimum cumulative sentence would have been 51 years in prison. 3 Finally,

we found that where the record affirmatively shows that the trial court, in imposing a life

sentence on a juvenile, failed to comprehend the ways in which juveniles are constitutionally

different from adults, the defendant is entitled to relief. More specifically, we found that while a

trial court is not required to expressly make findings as to each youth-related factor identified by

Miller, a defendant is entitled to relief where the record affirmatively indicates that the trial court

has deviated from the principles discussed therein.

3
Defendant’s first degree murder conviction carried a sentencing range of 20 to 60 years. 730
ILCS 5/5-8-1(a)(1)(a) (West 2006). That conviction was also subject to a mandatory, consecutive firearm
enhancement of 25 years. Id. § 5-8-1(a)(1)(d)(iii). In addition, defendant’s Class X aggravated battery
conviction required a sentence of between 6 and 30 years in prison. 720 ILCS 5/12-4.2(a)(1), (b) (West
2006). Furthermore, defendant was required to serve consecutive sentences. See 730 ILCS 5/5-8-4(a)
(West 2006) (stating that “[t]he court shall impose consecutive sentences if *** one of the offenses for
which defendant was convicted was first degree murder or a Class X or Class 1 felony and the defendant
inflicted severe bodily injury”).
- 15 -
No. 1-12-1604

¶ 52 2. Subsequent Illinois Supreme Court Holdings

¶ 53 After our opinion was issued, the Illinois Supreme Court held in People v. Reyes, 2016 IL

119271, ¶ 9 (per curiam), that “sentencing a juvenile offender to a mandatory term of years that

is the functional equivalent of life without the possibility of parole constitutes cruel and unusual

punishment in violation of the eighth amendment.” Thus, Reyes confirmed that Miller applies to

de facto life sentences. The supreme court subsequently concluded in Holman that “Miller

applies to discretionary sentences of life without parole for juvenile defendants” and found that

the trial court must specifically consider the characteristics of youth mentioned in Miller.

Holman, 2017 IL 120655, ¶¶ 40, 43-44. Finally, Buffer succinctly set forth what a juvenile

offender must do to prevail under Miller: The defendant must show that (1) he “was subject to a

life sentence, mandatory or discretionary, natural or de facto,” and (2) the sentencing court failed

to consider the unique characteristics attending youth. Buffer, 2019 IL 122327, ¶ 27. The

supreme court further clarified that a sentence of 40 years or greater constitutes a de facto life

sentence without parole. Id. ¶ 40.

¶ 54 3. Defendant’s Sentencing Hearing

¶ 55 Following Buffer, defendant’s cumulative 78-year sentence was indisputably a life

sentence. Additionally, the record shows that the sentencing court failed to understand and

consider the unique characteristics attending youth.

¶ 56 Life in prison without parole is disproportionate unless the juvenile defendant’s crime

reflects irreparable corruption. Montgomery, 577 U.S. at ___, 136 S. Ct. at 726. Sentencing

courts must consider a child’s diminished culpability as well as his heightened capacity for

change. Id. at ___, 136 S. Ct. at 726. Children are immature, irresponsible, reckless, impulsive,

and vulnerable to negative influence. Miller, 567 U.S. at 471. Additionally, they lack control

- 16 -
No. 1-12-1604

over their environment and the ability to extricate themselves from crime-producing

circumstances. Id. Because a juvenile’s character is not well formed, his actions are less likely to

demonstrate irretrievable depravity. Id. It follows that youth diminishes penological

justifications: (1) reduced blameworthiness undermines retribution, (2) impetuosity undermines

deterrence, and (3) ordinary adolescent development undermines the need for incapacitation. Id.

at 472-73. Additionally, life without parole entirely negates the possibility of rehabilitation. Id. at

473.

¶ 57 Consequently, “Miller requires that before sentencing a juvenile to life without parole,

the sentencing judge take into account ‘how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in prison.’ ” Montgomery, 577 U.S. at

___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at 480).

¶ 58 While we do not fault the trial court for failing to apply principles of law and science that

had not yet been adopted by the Supreme Court, the trial court’s findings do not imply that it

believed defendant was the rarest of juveniles whose crime showed that he was permanently

incorrigible. The court clearly found that for the foreseeable future, defendant was likely to

engage in further criminal conduct due to the Latin Kings’ influence over him and the tragic

shooting of his brother. Given juveniles’ susceptibility to peer pressure and recklessness, this is

hardly surprising. Yet, susceptibility to peer pressure and recklessness erode with age. Indeed,

the trial court found that in the future, defendant could do something positive. Specifically, he

could change his life and even help other gang members change their ways, albeit in prison.

Additionally, the court found defendant’s sentence was necessary to deter not only him, but other

gang members. We now know, however, that defendant’s sentence is not likely to deter anyone.

See Id. at ___, 136 S. Ct. at 733 (observing that deterrence is diminished in juvenile sentencing

- 17 -
No. 1-12-1604

because juveniles’ recklessness, immaturity and impetuosity make them less likely to consider

possible punishment).

¶ 59 As we recognized on direct appeal, the trial court expressly considered defendant’s

“young age.” See also People v. Holman, 2016 IL App (5th) 100587-B, ¶ 43 (observing that we

presume the court considers mitigating evidence before it). With that said, the record shows that

the court did not consider the corresponding characteristics of defendant’s youth.

¶ 60 In support of defendant’s sentence, the State notes the aggravating factors found by the

trial court, defendant’s prior convictions, the unsatisfactory termination of probation, the death of

his brother, his gang violence, his pride in announcing that he “lit up some flakes” and “hit a

dome shot,” his use of police scanners and his decision to shoot unarmed victims. Yet,

examining these factors through the lenses of Miller may have led to a shorter sentence.

¶ 61 Under these circumstances, we vacate defendant’s sentence and remand for a new

sentencing hearing. See Buffer, 2019 IL 122327, ¶ 47. In light of our determination, we need not

consider defendant’s challenge under Illinois’ proportionate penalties clause. We also affirm the

trial court’s dismissal of the claims raised in defendant’s petition, as he has abandoned those

claims.

¶ 62 III. CONCLUSION

¶ 63 For the foregoing reasons, we vacate defendant’s sentence and remand for resentencing.

The judgment is affirmed in all other respects.

¶ 64 Affirmed in part and vacated in part.
¶ 65 Cause remanded with directions.

- 18 -
No. 1-12-1604

No. 1-12-1604

Cite as: People v. Nieto, 2020 IL App (1st) 121604-B

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 06-CR-4475;
the Hon. Rosemary Grant Higgins, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Jeffrey B. Svehla, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan
for J. Spellberg, Tasha-Marie Kelly, and Lori M. Rosen, Assistant
Appellee: State’s Attorneys, of counsel), for the People.

- 19 -