People v. Erves

2020 IL App (1st) 171135
No. 1-17-1135
Opinion filed December 31, 2020

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 04 CR 29140
)
BRYANT ERVES, ) The Honorable
) William G. Lacy,
Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Lampkin and Reyes concurred in the judgment and opinion.

OPINION

¶1 Defendant Bryant Erves appeals from the third-stage dismissal of his

petition for postconviction relief.

¶2 Defendant, 17 years old, was convicted, after a bench trial, of first-degree

murder and sentenced to 30 years, plus an additional 25-year firearm
 No. 1-17-1135

enhancement, for a total of 55 years with the Illinois Department of Corrections

(IDOC). After a third-stage evidentiary hearing, the trial court denied his claim

under Miller v. Alabama, 567 U.S. 460 (2012), for a new sentencing hearing, as

well as his claims of actual innocence and ineffective assistance of counsel.

¶3 On this appeal, the State concedes that the trial court did not apply the

Miller factors when considering defendant’s sentence and, thus, the State joins

defendant in arguing that he is entitled to a new sentencing hearing.

¶4 For the reasons explained below, we agree that defendant is entitled to a

new sentencing hearing and, therefore, we vacate his sentence and remand for a

new sentencing hearing; but we do not consider defendant’s other claims at this

time.

¶5 In prior postconviction cases when this court has remanded for a new

sentencing hearing, we have found that consideration of other postconviction

claims at this time is premature. People v. Edgecombe, 2011 IL App (1st)

092690, ¶ 31. For example, in Edgecombe, as in this case, both parties agreed

that the case needed to be remanded for resentencing. Edgecombe, 2011 IL App

(1st) 092690, ¶ 15. In Edgecombe, as in this case, the defendant had made other

claims in his postconviction petition that attacked the validity of his conviction

and, based on those claims, he sought a new trial. Edgecombe, 2011 IL App

(1st) 092690, ¶ 12. After explaining why we agreed with the parties on the

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need for resentencing, we remanded the Edgecombe case for resentencing but

declined to consider the defendant’s other postconviction claims at that time.

Edgecombe, 2011 IL App (1st) 092690, ¶ 31.

¶6 We explained, first, that since a defendant has a right to file a direct

appeal “ ‘from sentences entered on conviction,’ ” the defendant may choose to

file, instead, “a direct appeal after the entry of the new sentencing order.”

Edgecombe, 2011 IL App (1st) 092690, ¶ 31 (quoting 730 ILCS 5/5-5-4.1

(West 2008)). See also 730 ILCS 5/5-5-4.1 (West 2018) (“The defendant has

the right of appeal in all cases from sentences entered on conviction” in felony

cases); People v. Lopez, 129 Ill. App. 3d 488, 491 (1984) (“Final judgment in a

criminal case is not entered until the imposition of the sentence. The final

judgment in a criminal case is the sentence.”).

¶7 Second, we explained that, “[s]ince defendant may decide not to pursue

these claims depending on the outcome of his resentencing, it is in the interest

of judicial economy for us not to address [postconviction] claims prematurely.”

Edgecombe, 2011 IL App (1st) 092690, ¶ 31. We observe that, in the case at

bar, it has been 16 years since the offense, and the 25-year firearm enhancement

will no longer be mandatory at defendant’s resentencing. 730 ILCS 5/5-4.5-

105(b) (West 2016). Thus, depending on what his new sentence is, defendant

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may or may not decide to pursue his remaining claims. Edgecombe, 2011 IL

App (1st) 092690, ¶ 31.

¶8 Below, we discuss the reasons that require a new sentencing hearing.

With respect to his other claims, we find, as we did in Edgecombe, that “[o]ur

action today does not affect the [other] claims that defendant made.”

Edgecombe, 2011 IL App (1st) 092690, ¶ 31.

¶9 BACKGROUND

¶ 10 The 17-year-old defendant was convicted of first-degree murder in

connection with the drive-by shooting of Troy Wilson on August 7, 2004. The

primary issue at his bench trial was the identity of the shooter. Clarence Lang,

who was a passenger in the vehicle from which the shots were fired, testified

that defendant was the shooter. Defendant did not testify. Brenda Chandler, a

bystander, testified that defendant was the shooter, although she had previously

informed police on the scene that she did not know who the shooter was.

Chandler testified that defendant was in the front passenger seat and Lang was

in the back seat. Lang’s girlfriend, Latrice Smith, also testified that defendant

was the shooter; and that defendant was in the front passenger seat, while Lang

was in the back seat. During closing argument, the State argued that defendant

was the shooter, while the defense argued that Lang was the shooter. Primarily

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on the basis of the three eyewitnesses (Lang, Chandler and Smith) who all knew

defendant prior to the shooting, the trial court found defendant guilty. 1

¶ 11 At the sentencing hearing on September 28, 2006, the State presented, in

aggravation, a victim impact statement from the victim’s mother; and the

defense called, in mitigation, defendant’s grandmother. Defendant’s

grandmother testified that she had raised the 17-year-old defendant since he was

8 months old, that he had been a B or C student in school, that he was not a

gang member, and that she had arranged for a police officer to mentor

defendant, not because defendant had been in trouble, but “to keep him

straight.” The State observed, in response, that witnesses had testified at trial

that defendant was a gang member.

¶ 12 The presentence investigation report (PSI) showed that defendant had not

been arrested as a juvenile and that he had been sentenced to only one day as an

adult for criminal trespass to state land. Defendant denied any gang

involvement, past or present, and reported that, while he had little contact with

his parents, he had “a great life” with his grandmother, who was a Chicago

public school teacher. Although a B or C student, he withdrew from school in

1
This court already described the evidence at trial twice, and we will not
repeat that description again here. We incorporate our prior orders by reference.
People v. Erves, No. 1-07-0333, slip order at 2-8 (2008) (unpublished order
pursuant to Supreme Court Rule 23) (describing the evidence at trial); People v.
Erves, 2012 IL App (1st) 112813-U, ¶¶ 5-20 (describing the evidence at trial).
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his junior year of high school. Prior to his arrest, he had worked for cash part-

time at a car wash; he had attended a Baptist church; he had never been

married; he had no children; and he denied any drug or alcohol abuse.

Defendant had one tattoo, which was Psalm 23.

¶ 13 The parties agreed that the minimum possible sentence was 45 years.

The sentencing range for the murder was 20 to 60 years, plus an additional

minimum of 25 years due to a mandatory firearm enhancement. The defense

argued for the minimum, arguing that, even with the 45-year minimum, his

client would not be released until age 65, “if he is released.” In response, the

State argued that “this is not a minimum case,” in part, because of the very

nature of a drive-by shooting.

¶ 14 The trial court stated that it had “considered the arguments of counsel, in

aggravation and mitigation, as well as the evidence presented both in

aggravation and mitigation, the information that has been provided to me in the

presentence investigation,” “the facts of the case,” and defendant’s allocution.

Without a reference to defendant’s age or to any other factors, the trial court

sentenced defendant to 30 years for the murder, plus a 25-year firearm

enhancement, for a total of 55 years with IDOC.

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¶ 15 On January 4, 2007, defense counsel moved for a reduction in sentence

on the ground that “this is a young man who essentially was without a criminal

history.” The trial court denied the motion, finding:

“THE COURT: The fact of the matter is that the sentencing range is

from 20 to 60 and I sentenced the defendant to 10 years over the

minimum term.

The legislature has enacted a law that upon [a] certain finding of fact

by the trier of fact that these additional penalties must be imposed. So

basically I sentenced defendant to 10 years over the minimum which is

30 years. I followed the law.”

¶ 16 On direct appeal, defendant claimed that the trial court erred in

permitting a potentially exonerating witness to invoke a fifth-amendment

privilege against self-incrimination. 2 This court found that, since the witness

had “a reasonable fear of criminal sanctions, this court cannot say that the trial

court abused its discretion by allowing” him to invoke his fifth amendment

privilege. Erves, No. 1-07-0333, slip order at 18.

2
Larry Chatman had been subpoeaned as a trial witness by the defense and
had appeared at trial with his own attorney. Defendant’s counsel stated, in an offer
of proof, that Chatman and Lang had had a conversation in a trial judge’s
“bullpen” on March 7, 2006, during which Lang admitted to Chatman that he was
the shooter. Erves, No. 1-07-0333, slip order at 6-7.
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¶ 17 After defendant’s conviction was affirmed on direct appeal, he filed a pro

se postconviction petition alleging actual innocence and ineffective assistance

of counsel. 3 After the trial court dismissed his petition at the second stage, this

court reversed and remanded for a third-stage evidentiary hearing. Erves, 2012

IL App (1st) 112813-U, ¶ 1.

¶ 18 On December 17, 2014, prior to the evidentiary hearing, defendant filed a

supplemental petition challenging the constitutionality of his 55-year sentence

as a de facto life sentence pursuant to Miller and its progeny. Defendant

observed that he was required to serve 100% of his sentence and that he was

currently scheduled to be released on October 30, 2059, at age 73, “if” he lived

that long. After the hearing, the trial court denied defendant’s motions for both

a new trial and a new sentencing hearing. The trial judge who presided over

defendant’s postconviction proceedings was the same judge who had presided

over defendant’s bench trial and sentencing hearing.

¶ 19 In denying defendant’s motion for resentencing, the trial court found that

defendant’s 55-year sentence was “not a de facto natural life sentence.” In

support of that finding, the trial court observed that “our appellate courts have

set no bright line or rule as to a specific number where a court can state that an
3
When the parties refer to this petition in their briefs to this court, they cite
the trial court’s orders dismissing the petition, rather than the petition itself. The
petition itself does not appear to be in the record before us. Since we are not
considering these claims at this time, its absence does not affect our opinion.
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exact number of years is a de facto natural sentence” and that this issue “will

have to ultimately be decided by the Supreme Court.” The trial court made this

observation on April 20, 2017; and two years later, on April 18, 2019, our

supreme court chose to establish that bright line in People v. Buffer, 2019 IL

122327, ¶¶ 40-41, finding that a sentence over 40 years was a de facto life

sentence.

¶ 20 On April 20, 2017, defendant filed a notice of appeal, and this timely

appeal followed.

¶ 21 ANALYSIS

¶ 22 I. Postconviction Stages

¶ 23 Defendant seeks relief under the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2018)), which provides for three stages of review

by the trial court. People v. Domagala, 2013 IL 113688, ¶ 32. At the first stage,

the trial court may summarily dismiss a petition only if it is frivolous or

patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018); Domagala,

2013 IL 113688, ¶ 32.

¶ 24 At the second stage, counsel is appointed if a defendant is indigent. 725

ILCS 5/122-4 (West 2018); Domagala, 2013 IL 113688, ¶ 33. After counsel

determines whether to amend the petition, the State may file either a motion to

dismiss or an answer to the petition. 725 ILCS 5/122-5 (West 2018);

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Domagala, 2013 IL 113688, ¶ 33. At the second stage, the trial court must

determine “whether the petition and any accompanying documentation make a

substantial showing of a constitutional violation.” People v. Edwards, 197 Ill.

2d 239, 246 (2001).

¶ 25 If the defendant makes a “substantial showing” at the second stage, then

the petition advances to a third-stage evidentiary hearing. Domagala, 2013 IL

113688, ¶ 34. At a third-stage evidentiary hearing, the trial court acts as

factfinder, determines witness credibility and the weight to be given particular

testimony and evidence, and resolves any evidentiary conflicts. Domagala,

2013 IL 113688, ¶ 34. In this appeal, the petition was dismissed at the third

stage after an evidentiary hearing.

¶ 26 II. Standard of Review

¶ 27 When an issue at a third-stage evidentiary hearing involves fact-finding

and credibility determinations, we will not reverse the trial court’s finding on

that issue, unless the finding is manifestly erroneous. People v. Williams, 2017

IL App (1st) 152021, ¶ 22. However, if an issue involved no fact-finding or

credibility determinations, then our review is de novo. People v. Andrews; 403

Ill. App. 3d 654, 659 (2010) (“Our review of a third-stage dismissal is de novo,

when, as here, no fact finding or credibility determinations are involved.”)

(citing People v. Pendleton, 223 Ill. 2d 458, 473 (2006)); Williams, 2017 IL

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App (1st) 152021, ¶ 22. The question of whether defendant’s 55-year sentence

is a de facto life sentence under Miller and its progeny is a pure question of law,

to which we apply a de novo standard of review.

¶ 28 De novo consideration means that a reviewing court performs the same

analysis that the trial court would perform. People v. Williams, 2020 IL App

(1st) 162412, ¶ 72.

¶ 29 III. Effect of Buffer

¶ 30 The trial court’s finding that 55 years is not a de facto life sentence is

indisputably error, in hindsight. See Buffer, 2019 IL 122327, ¶¶ 40-41 (a

sentence over 40 years is a de facto life sentence). As this court has stated

before, we “do not mean to impugn the abilities or conscientiousness of the

judge below.” People v. DiCorpo, 2020 IL App (1st) 172082, ¶ 57. Rather, we

are aware that the law regarding juvenile and young adult sentencing has been

“a rapidly evolving area of the law, and the court below did not have the benefit

of our supreme court’s more recent cases in this area such as Buffer,” as well as

our own recent cases. DiCorpo, 2020 IL App (1st) 172082, ¶ 57.

¶ 31 Having found error, we then turn to the issue of relief.

¶ 32 The State joins defendant in arguing that defendant is “entitled” to a new

sentencing hearing. Exercising de novo review, we reach the same conclusion,

for the following reasons.

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¶ 33 The supreme court case of Buffer is remarkably similar to the case at bar.

In Buffer, as in our case, the juvenile defendant was found guilty of first-degree

murder and of personally discharging the firearm that caused the victim’s death.

In Buffer, as in our case, the defendant faced a sentencing range of 20 to 60

years for the murder, as well as a mandatory minimum 25-year firearm

enhancement, resulting in a mandatory minimum sentence of 45 years. In

Buffer, and similar to our case, the sentencing court stated that it had considered

“all of the relevant” information before it and sentenced defendant to more than

the minimum. Buffer, 2019 IL 122327, ¶ 46. The total sentence in Buffer was 5

years over the minimum, whereas in our case it was 10 years over the

minimum. Buffer, 2019 IL 122327, ¶ 5. In Buffer, as in our case, the defendant

raised a Miller challenge to his sentence in a postconviction petition, claiming

that his sentence was a de facto life sentence. Buffer, 2019 IL 122327, ¶ 7.

¶ 34 The Buffer court found that, “to prevail on a claim based on Miller and its

progeny, a defendant sentenced for an offense committed while a juvenile must

show that (1) the defendant was subject to a life sentence, mandatory or

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

youth and its attendant characteristics in imposing the sentence.” Buffer, 2019

IL 122327, ¶ 27. As discussed above, defendant has already established the

first prong of this test.

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¶ 35 With respect to the second prong, the Buffer court found no need to

remand for further postconviction proceedings, since no additional “factual

development” was needed to find that prong satisfied. Buffer, 2019 IL 122327,

¶ 46. The supreme court observed that the record already established that,

while the trial court had considered all the then-relevant statutory factors, the

trial court had not “considered defendant’s youth and its attendant

characteristics.” Buffer, 2019 IL 122327, ¶ 46. Thus, the court remanded

directly for a resentencing. Buffer, 2019 IL 122327, ¶¶ 46-47.

¶ 36 By contrast, in the recent case of People v. Lusby, 2020 IL 124046, ¶ 52,

the supreme court found that there was no need for resentencing, even though

the case involved a juvenile defendant who was sentenced before Miller was

even decided.

¶ 37 In Lusby, 2020 IL 124046, ¶ 35, the supreme court explained “how” a

reviewing court, such as ourselves, should determine whether a prior sentencing

hearing comported with Miller and “its requirements.” Our supreme court

found that “the inquiry looks back to the trial and the sentencing hearing to

determine whether the trial court at that time considered evidence and argument

related to the Miller factors.” (Emphasis added.) Lusby, 2020 IL 124046, ¶ 35.

The supreme court stated that the Miller factors “ ‘include, but are not limited

to, the following factors: (1) the juvenile defendant’s chronological age at the

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time of the offense and 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 pressure 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.’ ” Lusby,

2020 IL 124046, ¶ 34 (quoting People v. Holman, 2017 IL 120655, ¶ 46).

¶ 38 Similar to Buffer and unlike Lusby, the record before us shows that the

trial court did not consider youth and its attendant circumstances.

¶ 39 In the case at bar, the trial court stated at the sentencing hearing that it

had “considered the arguments of counsel, in aggravation and mitigation, as

well as the evidence presented both in aggravation and mitigation, the

information that has been provided to me in the presentence investigation,” “the

facts of the case,” and defendant’s allocution. However, the court made no

reference to defendant’s age or to any youth-related factors before imposing

sentence.

¶ 40 When the defense subsequently moved for a reduction in sentence on the

ground that “this is a young man who essentially was without a criminal

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history,” the trial court denied the motion, finding that it had sentenced

defendant to only 10 years over the minimum and had “followed the law.”

¶ 41 During the postconviction proceedings, the trial court denied defendant’s

Miller claim on the ground that defendant’s 55-year sentence was “not a de

facto natural life sentence,” thereby indicating that it did not intend to impose a

life sentence on this juvenile defendant.

¶ 42 From our own independent review of all three proceedings before the

sentencing judge, namely, the original sentencing hearing, the subsequent

motion to reduce sentence, and the postconviction proceeding, it is evident that

the Miller-related factors were not considered before imposing what is now

adjudged to be a de facto life sentence.

¶ 43 The Buffer court found that “the proper remedy is to vacate defendant’s

sentence and to remand for a new sentencing hearing.” Buffer, 2019 IL 122327,

¶ 47. The supreme court “[f]urther” found “that defendant is entitled on remand

to be sentenced under the scheme prescribed by section 5-4-105 of the United

Code of Corrections.” Buffer, 2019 IL 122327, ¶ 47 (referring to 730 ILCS 5/5-

4.5-105 (West 2016)).

¶ 44 As in Buffer, we vacate defendant’s sentence and remand for a new

sentencing hearing, in accord with the new statutory scheme.

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¶ 45 On remand, the sentencing court may impose a de facto life sentence

“ ‘only if the trial court determines that the defendant’s conduct showed

irretrievable depravity, permanent incorrigibility, or irreparable corruption

beyond the possibility of rehabilitation.’ ” Lusby, 2020 IL 124046, ¶ 34

(quoting Holman, 2017 IL 120655, ¶ 46). The trial court may make an

appropriate sentencing decision “ ‘only after considering the defendant’s youth

and its attendant characteristics.’ ” Lusby, 2020 IL 124046, ¶ 34 (quoting

Holman, 2017 IL 120655, ¶ 46). The factors it must consider are now codified.

730 ILCS 5/5-4.5-105 (West 2016). Under the new scheme, the firearm

enhancement is no longer mandatory. 730 ILCS 5/5-4.5-105(b) (West 2016)

(the sentencing court “may, in its discretion, decline to impose any otherwise

applicable sentencing enhancement based upon firearm possession”).

¶ 46 CONCLUSION

¶ 47 For the foregoing reasons, we vacate defendant’s sentence and reverse

and remand for a new sentencing hearing, with directions.

¶ 48 Sentence vacated; remanded for resentencing, with directions.

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No. 1-17-1135

Cite as: People v. Erves, 2020 IL App (1st) 171135

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 04-CR-
29140; the Hon. William G. Lacy, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Pamela Rubeo, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, and Whitney Bond, Assistant State’s Attorneys, of
Appellee: counsel), for the People.

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