People v. Reyes

Digitally signed
by Reporter of
Decisions
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Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2021.02.10
11:51:37 -06'00'

People v. Reyes, 2020 IL App (2d) 180237

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ZACHARY REYES, Defendant-Appellant.

District & No. Second District
No. 2-18-0237

Filed June 25, 2020

Decision Under Appeal from the Circuit Court of Kendall County, No. 09-CF-505; the
Review Hon. Timothy J. McCann, Judge, presiding.

Judgment Vacated and remanded.

Counsel on James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.

Eric C. Weiss, State’s Attorney, of Yorkville (Patrick Delfino, Edward
R. Psenicka, and Mary Beth Burns, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Justices McLaren and Bridges concurred in the judgment and opinion.
 OPINION

¶1 In 2012, following a jury trial, the juvenile defendant, Zachary Reyes, was convicted of
one count of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)) and two counts of
attempted murder with a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)). The defendant
was sentenced to 97 years’ imprisonment. Our supreme court ultimately determined that the
defendant’s sentence was unconstitutional and remanded for a new sentencing hearing. People
v. Reyes, 2016 IL 119271. On remand, the trial court sentenced the defendant to 66 years’
imprisonment. The defendant appeals from this order. We vacate the defendant’s sentence and
remand to the trial court for resentencing.

¶2 I. BACKGROUND
¶3 The defendant was charged by indictment in the circuit court of Kendall County with the
first degree murder of Jason Ventura and the attempted murders of Eduardo Gaytan and Jorge
Ruiz. The indictment alleged that on December 20, 2009, defendant personally discharged a
firearm in the direction of a vehicle occupied by Ventura, Gaytan, and Ruiz and that
defendant’s actions caused the death of Ventura as well as serious injury to Gaytan. The
defendant, who was 16 years old at the time of the shootings, was prosecuted as an adult (see
705 ILCS 405/5-130(1)(a)(i) (West 2008)). Following a jury trial, he was found guilty of the
charged offenses.
¶4 At the defendant’s sentencing hearing, the trial court imposed the mandatory minimum
sentence of 45 years’ imprisonment for the first degree murder conviction, consisting of the
minimum 20-year sentence for murder (see 730 ILCS 5/5-4.5-20(a) (West 2008)), plus the
minimum 25-year mandatory firearm enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West
2008)). The court also sentenced the defendant to 26 years’ imprisonment for each of the two
attempted-murder convictions, which consisted of the minimum 6-year sentence for attempted
murder (see 730 ILCS 5/5-4.5-25(a) (West 2008)), plus the 20-year mandatory firearm
enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2008)). In addition, as required by
statute (see 730 ILCS 5/5-8-4(d)(1) (West 2008)), the trial court ordered that all of the
defendant’s sentences must run consecutively to each other. As a result, the defendant was
sentenced to a mandatory minimum aggregate sentence of 97 years’ imprisonment. The
defendant filed a timely notice of appeal from this sentence.
¶5 On appeal, the defendant argued, in part, that his sentence was unconstitutional pursuant
to Miller v. Alabama, 567 U.S. 460 (2012). See People v. Reyes, 2015 IL App (2d) 120471,
¶ 16. The defendant acknowledged that Miller prohibited a sentencing scheme that mandated
a sentence of natural life in prison without the possibility of parole for juvenile offenders. Id.;
Miller, 567 U.S. at 479. The defendant argued, however, that his aggregate term-of-years
sentence was a de facto mandatory natural life term of imprisonment and was likewise
unconstitutional under Miller. Reyes, 2015 IL App (2d) 120471, ¶ 16. This court rejected
defendant’s argument and affirmed his sentence. Id. ¶ 23. We concluded that Miller applied
only to actual sentences of life without the possibility of parole and thus declined to extend the
Miller rationale to an aggregate term-of-years sentence that amounted to a de facto life term.
Id. ¶¶ 23-25. Our supreme court subsequently granted the defendant’s petition for leave to
appeal. See Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).

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¶6 On review, our supreme court held that the defendant’s term-of-years sentence was a
mandatory, de facto life-without-parole sentence that was the functional equivalent of a life
sentence without the possibility of parole. See Reyes, 2016 IL 119271, ¶ 9. The court concluded
that the defendant’s sentence constituted cruel and unusual punishment, in violation of the
eighth amendment to the United States Constitution. Id. ¶ 10. The court thus vacated the
defendant’s sentence as unconstitutional pursuant to Miller (id.) and remanded the matter to
the trial court for resentencing (id. ¶ 12). In so ruling, the court noted that, while the defendant’s
appeal was pending, the legislature enacted a new law, codified in section 5-4.5-105 of the
Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West Supp. 2015)), which provided a
new sentencing scheme for juvenile defendants. The law requires trial courts to take into
account several mitigating factors in determining appropriate sentences and makes the
imposition of firearm enhancements a matter of discretion with the trial courts. Reyes, 2016 IL
119271, ¶ 11. The court held that the defendant should be resentenced in accordance with the
new statute. Id. ¶ 12.
¶7 On remand, the trial court ordered a new presentence investigation (PSI) report and, at the
defendant’s request, an IQ test. In September 2017, a psychological evaluation was conducted
at the Kane County Diagnostic Center, and a report was issued. The report indicated that the
defendant received special education accommodations from 2002 to 2009. During that time,
he suffered from attention deficit hyperactivity disorder (ADHD) and took medication for that
condition. ADHD caused problems with inattention and impulsivity, but it is not classified as
an intellectual disability. When the defendant took his medication, he showed marked progress
in his academic functioning. However, the defendant stopped taking his medication when he
was in seventh and eighth grades and exhibited behavioral issues as a result. In seventh grade,
he was suspended for gang-related writing. On a General Ability Index (GAI) evaluation,
which the report indicated “represent[ed] a reliable and valid estimate of his overall intellectual
ability,” the defendant scored in the tenth percentile, which indicated that he was in the low
average range of functioning. The conclusion in the report was that the defendant did not meet
the criteria for intellectual disability as defined by section 5-1-13 of the Unified Code of
Corrections (730 ILCS 5/5-1-13 (West 2016)).
¶8 The record indicates that, while an initial PSI report was completed in March 2012, the
updated PSI report was completed on November 8, 2017. The PSI report indicated that, prior
to the charges in this case, the defendant’s juvenile record consisted of a charge of unlawful
possession of a firearm without a valid firearm owner’s identification card. At the time of his
arrest, he was in the ninth grade at East Aurora High School. Since he was incarcerated, he had
taken classes and earned numerous certificates in roofing, insulation, and vinyl decking. He
had also earned an anti-violence-awareness certificate and had attended Bible study classes.
The report indicated that his parents never married and his father did not play an active role in
his life. He grew up at home with his mother and four half-siblings. He described his
relationship with his half-siblings as “good.” The defendant became involved with the Latin
Kings street gang when he was 13 or 14 years old. The defendant expressed remorse for his
offenses and specifically for the death of Ventura.
¶9 The PSI report further indicated that a “Level of Service Inventory-Revised (LSI-R)” was
completed for the defendant and that the test was an objective and quantifiable risk-assessment
tool for predicting current risk to reoffend. Defendant’s LSI-R was based on the factors and
details that were relevant to him at the time of the offenses, December 20, 2009. The results

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 showed that the defendant was a medium risk for recidivism at the time of the offenses. The
report also indicated that, at the time of his arrest, the defendant was on probation for his charge
of unlawful possession of a weapon. The report concluded that the defendant’s subsequent
arrest for the crimes at issue indicated that his attitude was “supportive of crime.”
¶ 10 An addendum to the PSI report was filed, which included a written statement from the
defendant. In that statement, the defendant expressed remorse for the crimes at issue and stated
that he took full responsibility for his actions. He stated that, while incarcerated, he had been
taking classes because he wanted to learn and become a better person. On the night of the
shooting, older members of the Latin Kings had taken advantage of him because he wanted to
be liked, had low self-esteem, and did not know how to refuse them when they asked him to
shoot.
¶ 11 On February 16, 2018, at the sentencing hearing, the State submitted two disciplinary
reports for the defendant from the Menard Correctional Center, dated July 27, 2012, and May
23, 2014. Both disciplinary reports were for possession of contraband: one for having a weapon
(a piece of metal that had a hook on one end) and one for literature related to the Latin Kings
(the Latin Kings “Holy Prayer” and “Code of Kingdom”). The State also submitted an April
19, 2016, affidavit from the defendant, which had been filed in a Kendall County case against
his codefendant, Francisco Salazar. In the affidavit, the defendant admitted to receiving the
gun used in the shooting from higher ranking members of the Latin Kings and firing all the
shots into Ventura’s car, based on orders from the higher-ranking gang members. The
defendant also claimed that Salazar was not aware of the gun or the plan. This differed from
the defendant’s testimony at his own trial, where he had testified that he was not the one who
fired the shots towards Ventura’s car.
¶ 12 The defendant submitted his school records, which showed that he had an Individual
Education Program (IEP) and was in the ninth grade at age 16. The defendant’s mother testified
that the defendant had an IEP since first grade. He was ultimately diagnosed with ADHD. The
defendant always scored below average and was considered learning disabled. The defendant
struggled socially and did not have many friends. The defendant’s mother testified that the
other people involved in the crime were not people with whom the defendant normally
associated. On cross-examination, the defendant’s mother acknowledged that the defendant’s
problems in school were also related to his behavior and that his behavior problems were the
main reason he was placed in special schools. She was not aware that the defendant’s IEP
reports indicated that he had gang affiliations as early as 2007.
¶ 13 The trial court heard victim impact statements from Ventura’s mother, father, and brother.
The trial court then heard arguments. The State noted that one of the factors to consider in
mitigation was whether the defendant’s criminal conduct was a result of circumstances
unlikely to recur. The State noted that the May 2014 disciplinary report from the correctional
center indicated that the defendant had a copy of the Latin Kings’ “Holy Prayer” and “Code of
Kingdom.” The State argued that the defendant’s continued gang affiliation showed that the
defendant’s criminal conduct was likely to recur. The State also argued that the defendant was
not a candidate for rehabilitation. The State noted that the defendant was still part of the gang
and still did not take responsibility for his actions. The State pointed out that, at his trial, the
defendant testified that he was not the shooter and that, in a subsequent affidavit, he stated that
he was the shooter. Either way, the State argued, the defendant continued to blame others and
not truly accept responsibility for his actions.

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¶ 14 The defendant argued that he did not have a violent criminal history. His only other offense
prior to the murder was possessing a gun that he had found. The defendant argued that he was
taken advantage of by the older gang members. He had a learning disability and was not a
mature 16-year-old. The crime was the result of peer pressure and negative influences. The
defendant argued that he had a high potential for rehabilitation, as evidenced by the multiple
classes he was taking in prison to better himself. The defendant argued that the event was not
planned and that he had expressed remorse for his actions. With regard to his two disciplinary
reports—for having a piece of metal that could be used as a weapon and for gang affiliation—
defendant argued that such actions were a means of survival for a juvenile defendant sent to a
maximum-security prison. Defendant noted that he was 5’7” tall and weighed 145 pounds.
¶ 15 On March 16, 2018, the trial court announced its ruling. The trial court noted that it
reviewed the transcripts of the jury trial and the original sentencing hearing. The trial court
stated that it considered all the evidence presented at the sentencing hearing, including the
testimony, the victim impact statements, and the PSI report and the addendum. The trial court
further stated that it considered the nature of the offense, the maximum and minimum
sentences, the defendant’s criminal history, the crime’s impact on society, the defendant’s
young age, his familial and home environment, the extent of his participation in the crimes, the
effect of peer pressure, and the possibility of the defendant’s rehabilitation.
¶ 16 The trial court stated that it considered the statutory factors in aggravation and mitigation.
In mitigation, the trial court found that the defendant acted under strong provocation and that
he had an intellectual disability. In aggravation, the trial court considered that the defendant
had a prior weapons-related offense and that the current offense was gang-related. The trial
court noted that it also considered that the appropriate sentence should be a deterrent to others
but that it did not give this factor significant weight. Finally, the trial court stated that it
considered the two disciplinary reports to the extent that they related to the defendant’s
potential for rehabilitation.
¶ 17 The trial court sentenced the defendant to 25 years’ imprisonment and a 25-year firearm
enhancement for the first degree murder of Ventura, 10 years’ imprisonment for the attempted
murder of Gaytan, and 6 years’ imprisonment for the attempted murder of Ruiz. As required
by statute, the trial court ordered the sentences to run consecutively, resulting in an aggregate
prison term of 66 years. The trial court calculated that the defendant would be eligible for
parole after 63.5 years, at the age of 82. Thereafter, the defendant filed a timely notice of
appeal.

¶ 18 II. ANALYSIS
¶ 19 On appeal, the defendant argues that the trial court abused its discretion in sentencing him
to a 66-year de facto natural life aggregate sentence without adequately considering the
defendant’s youth and attendant circumstances. The defendant’s challenge to his sentence is
based on Miller, 567 U.S. 460, and the line of cases following that decision.
¶ 20 The defendant acknowledges that the issue is forfeited because he did not file a motion to
reconsider his sentence in the trial court. People v. Hillier, 237 Ill. 2d 539, 544 (2010) (“to
preserve a claim of sentencing error, both a contemporaneous objection and a written
postsentencing motion raising the issue are required”). However, in an effort to promote
judicial economy, the State has waived any claim that the argument is forfeited and has
requested that we address the merits of the appeal. People v. Beachem, 229 Ill. 2d 237, 241 n.2

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 (2008) (forfeiture is in the nature of an affirmative defense that State may raise, waive, or
forfeit).
¶ 21 In Miller, the Court held “that the [e]ighth [a]mendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders” who commit
murder. Miller, 567 U.S. at 479. Miller did not preclude a sentence of life without parole for
homicide offenders; it required only that the trial court first consider the special characteristics
of young offenders, such as immaturity, impetuosity, and the failure to appreciate risks and
consequences, before imposing such a sentence on them. Id. at 477. In other words, the Court’s
holding required that life-without-parole sentences be based on judicial discretion, rather than
statutory mandates. Id. at 479.
¶ 22 The Court later clarified Miller’s holding in Montgomery v. Louisiana, 577 U.S. ___, 136
S. Ct. 718 (2016). Montgomery reinforced that children are constitutionally different from
adults for sentencing purposes. Id. at ___, 136 S. Ct. at 733. The Court noted that, under Miller,
sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile offender
whose crime reflects irreparable corruption.’ ” (Internal quotation marks omitted.) Id. at ___,
136 S. Ct. at 734 (quoting Miller, 567 U.S. at 479-80). Montgomery explained that, in Miller,
“[t]he Court recognized that a [trial court] might encounter the rare juvenile offender who
exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is
justified. But in light of ‘children’s diminished culpability and heightened capacity for change,’
Miller made clear that ‘appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon.’ ” Id. at ___, 136 S. Ct. at 733-34 (quoting Miller, 567 U.S. at 479).
The Court held that Miller’s holding was retroactive. Id. at ___, 136 S. Ct. at 736; see also
People v. Davis, 2014 IL 115595, ¶ 39 (same).
¶ 23 Our supreme court has extended the Miller rationale, holding that (1) Miller applies to a
mandatory term-of-years sentence that is the functional equivalent of life without the
possibility of parole (a de facto life sentence) (Reyes, 2016 IL 119271, ¶¶ 9-10) and (2) Miller
applies to discretionary sentences of life without parole for juvenile defendants (People v.
Holman, 2017 IL 120655, ¶ 40). More recently, the court has defined a de facto life sentence
for a juvenile offender as one that is greater than 40 years. People v. Buffer, 2019 IL 122327,
¶¶ 41-42 (stating “a prison sentence of 40 years or less imposed on a juvenile offender does
not constitute a de facto life sentence in violation of the eighth amendment”).
¶ 24 In Buffer, our supreme court held 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.” Id. ¶ 27 (citing Holman, 2017 IL 120655, ¶ 40, and Reyes, 2016 IL
119271, ¶ 9). In the present case, the defendant’s 66-year sentence is a discretionary de facto
life sentence, and Miller thus applies. Id.
¶ 25 In Holman, the court explained:
“Under Miller and Montgomery, 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. The court may make that decision
only after considering the defendant’s youth and its attendant characteristics. Those
characteristics include, but are not limited to, the following factors [(the Miller

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 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.” Holman, 2017 IL 120655, ¶ 46 (citing Miller, 567 U.S. at 477-78).
Accordingly, to withstand a Miller-based constitutional challenge to a defendant’s sentence,
the trial court must consider the Miller factors and determine whether the defendant was among
those juvenile offenders whose conduct reflects transient immaturity or whether the defendant
was among the rarest of juvenile offenders whose conduct places him beyond the possibility
of rehabilitation. Id.
¶ 26 In the present case, the trial court stated that it considered the Miller factors. Specifically,
it considered “the defendant’s age, his family and home environment, the extent of his
participation in the crimes, the effect of any familial or peer pressure, and the possibility of his
rehabilitation.” Further, some information pertinent to the Miller factors was presented and
considered through the defendant’s school records, the PSI report and the addendum, the
evidence presented at the sentencing hearing, and the parties’ arguments.
¶ 27 Regarding the first Miller factor, the trial court stated that it considered that the defendant
was only 16 years old at the time of the offenses. The trial court also considered, as a statutory
mitigating factor, that the defendant had an intellectual disability. The record indicates that the
defendant struggled in school and, at the time of the offenses, although he was 16 years old,
he was only in the ninth grade.
¶ 28 As to the second Miller factor, the PSI report indicated that the defendant grew up without
a father but had a seemingly normal home life with his mother and four half-siblings. In the
PSI report, the defendant described his relationship with his siblings as “good.” The report also
indicated that his mother and half-siblings had visited him while he was incarcerated.
¶ 29 With regard to the third factor, the defendant’s degree of participation in the crimes, the
jury found that the defendant had fired the shots that killed Ventura, and in a subsequent
affidavit, the defendant admitted that, at the request of a higher-ranking gang member, he was
the one who fired the shots at Ventura’s vehicle. The trial court considered, in mitigation, that
the defendant likely acted under strong provocation from others. Regarding the fourth factor,
there was no evidence presented that the defendant was unable to deal with the police officers
or prosecutors or was incapable of assisting his own attorneys.
¶ 30 Finally, with regard to the fifth factor, the defendant’s potential for rehabilitation, the trial
court stated generally that it considered the issue of rehabilitation and that it considered the
defendant’s two disciplinary reports as they related to the defendant’s potential for
rehabilitation. The record also shows that the trial court considered that the defendant had one
previous juvenile offense of record for unlawful possession of a weapon. The State argued that
the defendant was not amenable to rehabilitation, as evidenced by his two disciplinary reports
and continued gang affiliation. The defendant argued that the continued gang affiliation was
merely a method of survival for a juvenile in a maximum-security prison and that he had
potential for rehabilitation, as demonstrated by his expressed remorse and the classes he
attended while incarcerated.

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¶ 31 Accordingly, the record shows that the trial court stated that it considered the Miller factors
and that there was also evidence and argument related to those factors. However, despite noting
the defendant’s age, the trial court never commented on the defendant’s immaturity,
impetuosity, or ability to understand risks and consequences. The trial court did not specifically
address whether the defendant was too young or too immature to resist the negative influences
surrounding him at the time or whether he was mature enough to maintain control over his
actions. With respect to rehabilitation, the trial court did not mention or discuss the finding in
the PSI report that the defendant was at a medium risk to reoffend. The trial court also did not
comment on the fact that the defendant had earned a number of certificates in prison as a means
to better himself and had expressed remorse in his written statement. As such, the record does
not show that the trial court made any determination that the defendant was beyond
rehabilitation or that the defendant’s conduct reflected permanent incorrigibility. Cf. Holman,
2017 IL 120655, ¶¶ 48, 50 (the defendant’s sentence complied with Miller where the probation
officer, in the PSI report, stated that the defendant had “no predilection for rehabilitation” and
the trial court found that the defendant could not be rehabilitated).
¶ 32 Based on our review of the record, we hold that the defendant’s sentence did not comply
with Miller and Holman. In this case, the trial court imposed a de facto life sentence on the
defendant, but the record does not reflect a determination by the trial court that the defendant
was among the rarest of juvenile offenders whose “conduct showed irretrievable depravity,
permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.”
Id. ¶ 46. Accordingly, the appropriate remedy is to vacate the defendant’s sentence and remand
for resentencing. Davis, 2014 IL 115595, ¶ 43. In so ruling, we express no view about the
sentence that the defendant should ultimately receive. On remand, the trial court could once
again impose a de facto life sentence only if it determines that the defendant is beyond
rehabilitation. See Holman, 2017 IL 120655, ¶ 46.

¶ 33 III. CONCLUSION
¶ 34 For the reasons stated, we vacate the defendant’s sentence and remand for a new sentencing
hearing.

¶ 35 Vacated and remanded.

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