People v. Marcum

2022 IL App (2d) 191061-U
No. 2-19-1061
Order filed February 8, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Stephenson County.
)
Plaintiff-Appellee, )
)
v. ) No. 19-CF-32
)
DEVIN L. MARCUM, ) Honorable
) Michael Paul Bald,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

PRESIDING JUSTICE BRIDGES delivered the judgment of the court.
Justices McLaren and Jorgensen concurred in the judgment.

ORDER

¶1 Held: Defendant’s as-applied constitutional arguments under the eighth amendment and
the proportionate penalties clause were premature because he did not raise them in
the trial court, such that they lacked an evidentiary basis and factual findings in the
record. For the same reasons, we could not evaluate defendant’s ineffective
assistance of counsel claim. Therefore, we affirm.

¶2 Following a jury trial, defendant, Devin L. Marcum, was found guilty of two counts of

first-degree murder (720 ILCS 5/9-1(a)(1) (West 2018)), one count of attempted first-degree

murder (720 ILCS 5/8-4 (West 2018)), aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(1)

(West 2018)), and aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2018)). He
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also pleaded guilty to unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West

2018)) to avoid the charge coming before the jury. The charges arose from an incident in which

defendant shot three men during an argument outside a bar, killing two of them. The trial court

sentenced defendant to mandatory natural life sentences for the first-degree murder counts. It

found that the aggravated battery with a firearm count merged into the attempted first-degree

murder count, for which it imposed a consecutive sentence of 32 years’ imprisonment (including

a mandatory 25-year firearm enhancement). The trial court imposed a consecutive sentence of 10

years’ imprisonment for aggravated discharge of a firearm and a concurrent 8-year sentence for

unlawful possession of a weapon by a felon.

¶3 On appeal, defendant argues that because he was 23 years old at the time of the offenses,

the imposition of the mandatory natural life sentences and mandatory firearm enhancement,

without consideration of how his young age affected his decision-making and potential for

rehabilitation, violate the eighth amendment’s ban on cruel and unusual punishment (U.S. Const.,

amend. VIII) and Illinois’ proportionate penalties clause (Ill. Const. 1970, art. I, § 11), as applied

to him. He alternatively argues that his trial counsel was ineffective for failing to raise these

arguments below. We affirm.

¶4 Defendant extensively cites Miller v. Alabama, 567 U.S. 460, 465 (2012), and People v.

Buffer, 2019 IL 122327, in support of his eighth amendment argument. Miller held that it was a

violation of the eighth amendment to sentence a juvenile defendant to mandatory life imprisonment

without the possibility of parole, because it prevents the sentencing court from considering a

juvenile’s decreased culpability and greater capacity for change. Miller, 567 U.S. at 465. Buffer

held that a prison sentence of 40 years or more for a juvenile offender constitutes a de facto life

sentence, and it violates the eighth amendment if the sentence is imposed without considering the

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defendant’s youth and attendant characteristics. Buffer, 2019 IL 122327, ¶ 42. Defendant notes

that Buffer cited section 5-4.5-105(a) of the Unified Code of Corrections (730 ILCS 5/5-4.5-105(a)

(West 2016)), which requires that before a court sentences a defendant who was under 18 when he

committed the offense, the court must consider a list of additional factors in mitigation that take

into account a juvenile defendant’s youth. Buffer, 2019 IL 122327, ¶ 36. Also, the imposition of

firearm enhancements is now discretionary for juvenile offenders. Id. (citing 730 ILCS 5/5-4.5-

105(b), (c) (West 2018)).

¶5 Defendant notes that Buffer stated that Miller has language that is significantly broader

than its core holding (id. ¶ 25), and he argues that Buffer demonstrates the Illinois supreme court’s

willingness to expand on Miller’s holding. Defendant highlights that the Illinois legislature has

also made changes to the law as it relates to youthful offenders. According to defendant, in the

years since the Miller decision, “a wealth of research in neurobiology and developmental

psychology has shown that the brain does not finish developing until one’s mid-20’s,” and he cites

various articles. He maintains that several European countries have already extended juvenile

justice to include young adults, demonstrating that drawing a hard line at age 18 is simply not

reflective of the realities of brain development or the aim of rehabilitating young offenders.

¶6 Defendant argues that his mandatory life sentences and mandatory firearm add-on likewise

violate Illinois’ proportionate penalties clause. The proportionate penalties clause states, “All

penalties shall be determined both according to the seriousness of the offense and with the

objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. A statute

violates the proportionate penalties clause if “the punishment for the offense is cruel, degrading,

or so wholly disproportionate to the offense as to shock the moral sense of the community.” People

v. Miller, 202 Ill. 2d 328, 338 (2008). Punishments satisfying this standard have not been

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delineated because “as our society evolves, so too do our concepts of elemental decency and

fairness which shape the ‘moral sense’ of the community.” Id. at 339.

¶7 Defendant points out that in People v. Clemons, 2012 IL 107821, ¶ 40, our supreme court

stated that the proportionate penalties clause’s “objective of rehabilitation[] went beyond the

framers’ understanding of the eighth amendment and is not synonymous with that provision.”

Defendant argues that the mandatory sentences imposed on him are morally shocking in light of

evolving societal standards of decency, and youthful offenders present an especially compelling

case for an enhanced focus on rehabilitation as required under the Illinois Constitution.

¶8 Defendant argues that Miller, Graham v. Florida, 560 U.S. 48 (2010) (prohibiting life

without the possibility of parole for juvenile non-homicide offenders), and Roper v. Simmons, 543

U.S. 551 (2005) (prohibiting the death penalty for juvenile offenders) are all grounded in the

conclusion that juveniles are less deserving of the most severe punishments because they have less

culpability than adults, requiring individualized consideration during sentencing. Defendant

asserts that although these three cases limited their application of such principles to youth under

18 years old, since their publication further research in neurobiology and developmental

psychology has shown that young adults are more similar to adolescents than fully mature adults

in important ways, including that they are more susceptible to peer pressure, less future-oriented,

and more volatile in emotionally-charged settings. Defendant maintains that, most notably, young

adults like him are highly amenable to rehabilitation and being restored to useful citizenship.

Defendant argues that the mandatory sentences, without consideration of the case’s or his own

circumstances, therefore shock the moral sense of the community and undermine the proportionate

penalties clause’s plain language that a defendant’s penalty be imposed with the objective of

restoring him to useful citizenship.

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¶9 Defendant argues that we should remand his case for resentencing. Defendant recognizes

that the court arrived at a different conclusion in People v. Harris, 2018 IL 121932, ¶ 36. There,

the defendant argued on direct appeal that his aggregate 76-year sentence was unconstitutional as

applied under the proportionate penalties clause. The defendant was 18 years old at the time of his

offenses. Id. ¶ 45. The supreme court stated that because the defendant was an adult, Miller did

not directly apply to his case, and the record had to be sufficiently developed to address his claim

that Miller applied to his circumstances. Id. Specifically, the court stated that “the record here does

not contain evidence about how the evolving science on juvenile maturity and brain development

that helped form the basis for the Miller decision applies to defendant’s specific facts and

circumstances.” Id. ¶ 46. The court declined the defendant’s request to remand the matter for an

evidentiary hearing, stating that it was more appropriate for another proceeding, such as a petition

under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)) or a petition for

relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401

(West 2016)). Harris, 2018 IL 121932, ¶ 48.

¶ 10 However, defendant further cites People v. Jones, 2021 IL App (1st) 180996, where under

similar circumstances, the appellate court remanded the case for resentencing. The court stated

that it did not make sense to deny the defendant’s claim only to see the same claim in a

postconviction petition. Id. ¶ 33. It stated, “In the interests of judicial economy, and given the

unique facts of this case, and in light of all of the relevant cases decided since [the] defendant’s

sentencing such as Buffer and House [2019 IL App (1st) 110580-B], we remand for resentencing

now.” Id. Defendant argues that we should similarly remand for resentencing here.

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¶ 11 Last, defendant alternatively argues that his trial counsel was ineffective for failing to

challenge his sentence as violating the eighth amendment and proportionate penalties clause,

thereby requiring a remand for a new sentencing hearing.

¶ 12 We note that a facial challenge requires a showing that the statute is unconstitutional under

any set of facts, whereas an as-applied challenge is dependent on the particular facts and

circumstances of the challenging party. People v. Holman, 2017 IL 120655, ¶¶ 29-30. Defendant

makes sweeping assertions that appear to challenge the mandatory sentences for a broad class of

young adult defendants, but an as-applied challenge requires that defendant challenge the statute

only as applied to him.

¶ 13 In any event, to the extent that defendant’s arguments can be viewed as an as-applied

challenge, we conclude that supreme court precedent, specifically People v. Thompson, 2015 IL

118151, Harris, 2018 IL 121932, and People v. House, 2021 IL 125124, dictates that defendant’s

claims be brought in a collateral proceeding.

¶ 14 In Thompson, the defendant, who was 19 years old when he committed two murders, was

sentenced to natural life imprisonment. Thompson, 2015 IL 118151, ¶ 7. He subsequently filed a

section 2-1401 petition raising various claims, but on appeal from its dismissal he argued for the

first time that his sentence violated the eighth amendment and the proportionate penalties clause,

both facially and as applied. Id. ¶ 17. The supreme court stated that because an as-applied challenge

depends on the circumstances and facts of the individual defendant, the record must be sufficiently

developed on this subject for appellate review. Id. ¶ 37. The court stated:

“To support his as-applied challenge, defendant relies exclusively on the ‘evolving

science’ on juvenile maturity and brain development that formed the basis of the Miller

decision to ban mandatory natural life sentences for minors. Defendant maintains that this

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science applies with ‘equal force’ to a criminal defendant who was between the ages of 18

and 21 when the underlying crime was committed. The record here, however, contains

nothing about how that science applies to the circumstances of defendant’s case, the key

showing for an as-applied constitutional challenge. Nor does the record contain any factual

development on the issue of whether the rationale of Miller should be extended beyond

minors under the age of 18. Undoubtedly, the trial court is the most appropriate tribunal

for the type of factual development necessary to adequately address defendant’s as-applied

challenge in this case.” Id. ¶ 38.

The court stated that the defendant had forfeited his as-applied challenge under Miller by raising

it for the first time on appeal (id. ¶ 38), but that he was not necessarily foreclosed from raising his

arguments in the trial court, as he could possibly argue them in a successive postconviction petition

or another section 2-1401 petition (id. ¶ 44).

¶ 15 The supreme court reached the same conclusion in Harris, which we discussed earlier in

this disposition. See supra ¶ 9.

¶ 16 The supreme court’s decision in House was released after briefing in this case was

complete. There, the defendant, who was 19 years old at the time of the incident, was sentenced to

a mandatory natural life term for two first-degree murder convictions and consecutive 60-year

terms for each of two aggravated kidnapping convictions. House, 2021 IL 125124, ¶ 5. The

defendant later filed a postconviction petition that eventually included the allegations that his

mandatory natural life sentence violated the eighth amendment and the proportionate penalties

clause. Id. ¶ 8. The trial court dismissed the petition at the second stage of proceedings, but the

appellate court vacated the sentence because it found the defendant’s as-applied proportionate

penalties argument meritorious. Id. ¶¶ 9-10. The parties appealed to the supreme court, which

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issued a supervisory order directing the appellate court to vacate its judgment and reconsider the

effect of Harris. Id. ¶ 11. On remand, the parties requested that the appellate court remand the case

to the trial court for further second-stage proceedings, but the appellate court denied the request

and again vacated the sentence and remanded for resentencing. Id. ¶ 12.

¶ 17 The case then came before the supreme court for a second time, which determined that

“the appellate court erroneously held that [defendant’s] sentence of natural life violated the

proportionate penalties clause of the Illinois Constitution as applied to him without a developed

evidentiary record or factual findings on the as-applied constitutional challenge.” Id. ¶ 31. It stated

that the defendant did not provide or cite evidence about how the evolving science on juvenile

maturity and brain development applied to the defendant’s specific facts and circumstances. The

supreme court stated that an as-applied finding of unconstitutionality could not be made without

an evidentiary hearing and factual findings by the trial court regardless of whether the claim was

brought on direct review or in a collateral proceeding. Id. ¶ 31. The supreme court therefore

remanded the case to the trial court for second-stage proceedings. Id. ¶ 32.

¶ 18 Here, defendant never raised his as-applied constitutional challenges in the trial court, so

like Thompson, Harris, and House, we lack the evidentiary record and factual findings by the trial

court necessary to evaluate such claims. Defendant asks that we remand the case for a hearing, but

under Harris, defendant must bring his claims in a collateral petition, such as a postconviction

petition or section 2-1401 petition. Harris, 2018 IL 121932, ¶ 48. Defendant’s citation to Jones

for the position that we may remand for resentencing is not persuasive, as Jones relied on the

appellate court’s decision in People v. House, 2019 IL App (1st) 110580-B, which the supreme

court subsequently reversed in part and vacated in part. See House, 2021 IL 125124. The appellate

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court decision in House was also contrary to Thompson and Harris. Accordingly, we decline to

follow Jones. See also People v. Friar, 2021 IL App (2d) 191104-U, ¶ 57-60 (criticizing Jones).

¶ 19 Finally, we address defendant’s claim of ineffective assistance of counsel. For such a

claim, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466

U.S. 668 (1984). People v. Hodges, 234 Ill. 2d 1, 17 (2009). The defendant must show that (1)

counsel’s performance was deficient, and (2) the deficiency caused prejudice. People v. Eubanks,

2021 IL 126271, ¶ 30. Prejudice is demonstrated by showing a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s errors. People v. Valdez,

2016 IL 119860, ¶ 14.

¶ 20 In People v. Landerman, 2018 IL App (3d) 150684, the defendant, who was 19 years old

at the time of the offense, similarly argued on direct appeal that his counsel was ineffective for

failing to raise an as-applied constitutional challenge and present evidence. Id. ¶¶ 52, 57. The

appellate court concluded that the argument was premature because the record did not disclose

what evidence defense counsel could have presented to show how the evolving science could be

applied to the case, such that the appellate court could not determine whether the defendant was

prejudiced. Id. ¶ 52. The court in People v. Ortega, 2021 IL App (1st) 182396, ¶ 114, rejected the

same argument, stating that it was declining the “defendant’s invitation to bypass the clear mandate

of Harris by considering his claim under the umbrella of ineffective assistance of counsel” and it

would “not do indirectly what [it] cannot do directly.” We agree with Landerman and Ortega that

a claim of ineffective assistance of counsel is an inappropriate vehicle on direct appeal to bring the

type of as-applied constitutional challenges present here, particularly where the record is not

sufficiently developed to show prejudice.

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¶ 21 Instead, defendant must bring his claims in a collateral petition. We express no opinion on

the merits of such a petition (see Thompson, 2015 IL 118151, ¶ 44) including whether the

allegations would be sufficient to result in an evidentiary hearing under the circumstances of this

case.

¶ 22 For the reasons stated, we affirm the judgment of the circuit court of Stephenson County.

¶ 23 Affirmed.

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