2022 IL App (1st) 182305-U
SIXTH DIVISION
March 25, 2022
No. 1-18-2305
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
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. 12 CR 18655
)
MIGUEL WEBSTER, ) The Honorable
) Michele Pitman,
Defendant-Appellant. ) Judge presiding.
JUSTICE MIKVA delivered the judgment of the court.
Justice Oden Johnson concurred in the judgment.
Presiding Justice Pierce concurred in part and dissented in part.
ORDER
¶1 Held: Defendant’s conviction for first degree murder will not be reduced to second degree
murder where a rational juror could find that defendant did not believe he was
acting in self-defense. Defendant has also failed to raise a valid eighth-amendment
challenge to his 40-year sentence, which is not a de facto life sentence. We remand
for resentencing, however, to allow the trial court to reconsider this sentence in
light our supreme court’s guidance in People v. Buffer, 2019 IL 122327.
¶2 Defendant Miguel Webster was convicted of first degree murder and sentenced to 40 years
of imprisonment. Miguel now appeals. For the reasons that follow, we affirm the jury’s finding of
guilt on the charge of first degree murder but vacate the sentence imposed and remand for
No. 1-18-2305
resentencing.
¶3 I. BACKGROUND
¶4 The evidence at trial is summarized as follows.
¶5 Officer Barbara Klingelschmitt, a police officer with the Lansing Police Department,
responded to a call to check on a person in an alley on September 12, 2012. Officer Klingelschmitt
observed a person in a black hoodie lying face down in the grass. Once the hood was pulled back,
Officer Klingelschmitt observed an indented wound on the left side of the person’s head. Noting
that the person was dead, she began securing the scene and canvassing the area. Officer
Klingelschmitt followed a trail of blood to a nearby garage. She saw bloody drag marks and
footprints around the garage as well as a blood-like mark on the handle of the service door to the
garage. The door was unlocked, and Officer Klingelschmitt entered the garage and noted that the
air smelled strongly of bleach.
¶6 Heather Poerio, a crime scene investigator with the Illinois State Police, processed the
scene at the garage. Ms. Poerio testified that she also noticed a strong smell of bleach when
entering the garage and blood stains on various objects in the garage, the walls, and the inside of
the door. Ms. Poerio photographed the crime scene evidence and took swabs of the blood stains.
¶7 Officer Patrick Phillips, a crime scene investigator with the Illinois State Police, testified
that he likewise observed blood-like stains on and around the service door to the garage. The blood
stains on the ground formed a trail from the garage door to the alley. Officer Phillips believed these
stains to be drag marks. Next to the garage was a trash can with a pool of blood below it and a bag
filled with bloodstained clothing and other items. Officer Phillips recovered more bloodstained
clothing from inside another trash can six feet from where the body was found. He then went to
the residence in front of the garage and observed more blood stains on the handle of the screen
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door. Inside the residence, there were more blood stains on the walls, floor, and light switch. Inside
a bedroom closet, Officer Phillips found numerous bloodstained items, including cleaning spray,
boots, and money. He also found two live shotgun shell rounds and two spent shotgun shell rounds.
Underneath the box spring of the bed, Officer Phillips found a sawed-off shotgun.
¶8 Doctor Ponni Arunkumar, the chief medical examiner in the Cook County Medical
Examiner’s Office and an expert in the field of forensic pathology, reviewed the previous medical
examiner’s autopsy of the victim. The victim had shotgun wounds to the hand, lower face, and
upper face. The wounds to the hand and lower face were consistent with defensive wounds an
individual would receive by reaching out for a weapon. The pattern of both facial wounds indicated
that the shotgun was fired from a distance of two to three feet. The victim had a blunt-force injury
to his right eyebrow area, which was consistent with falling forward after being shot or with being
struck by an object such as a weapon. The victim’s torso had sustained injuries from being dragged.
The manner of the victim’s death was homicide.
¶9 A stipulation was entered that gunshot residue samples taken from the back of Miguel’s
right and left hands did not detect residue, meaning that he either did not fire a weapon, removed
residue from his hands after firing a weapon, or the weapon did not deposit residue.
¶ 10 Detective Tony Curtis responded to the scene. After observing the nearby victim and the
bloodstained garage, Detective Curtis knocked on the front door of the home. Miguel and his
mother answered the door and were asked to go to the Lansing Police Department. Detective Curtis
and his partner, Detective Mark Akiyama, interviewed Miguel at the police station. The interview
was recorded, and portions of that recording, excluding certain redactions, were published to the
jury.
¶ 11 Miguel also gave the following testimony at trial. He was 17 years old on September 12,
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No. 1-18-2305
2012. He had known the victim, Asonte Gutierrez, from school since he was in eighth grade and
Asonte was in seventh grade. He and Asonte had had a fight and subsequent falling out after
Miguel “talked smack” while the two were playing basketball at a park. The verbal fight continued
on Facebook, where Asonte told Miguel he would “smoke [his] ass,” which Miguel took to mean
he would be shot. The two later reconciled over the telephone, but Miguel told Asonte that he
wanted to stay away from him because Asonte was “tweaking,” meaning “one minute [he was]
cool, the next minute [he was] not.”
¶ 12 Two weeks later, in July 2012, around midnight, Asonte called Miguel and came to his
house. Miguel met Asonte outside and the two called a truce. Asonte then showed Miguel a double-
barreled shotgun in the trunk of his car, asked Miguel to hold onto it for him, and gave Miguel the
gun and four or five bullets in a bag. Miguel put the gun under his box spring.
¶ 13 Around 7:00 or 7:30 p.m. on September 11, 2012, Asonte called Miguel and asked if he
could come over to Miguel’s house. Miguel agreed but Asonte did not come at that time. He called
again around 9:00 or 9:30 p.m. and said he had “cuffed a bike” and was on his way over. At that
point, Miguel told Asante not to come because Miguel had to be up early for school and Miguel’s
mother would not let Asante come over that late. Asonte contacted Miguel a third time, through
Facebook, and asked Miguel to call him. Miguel responded, “Boy, I’m asleep.” Asonte came
anyway, between 10:00 and 10:30 p.m., and knocked on Miguel’s bedroom window. Asante told
Miguel to “check it out *** check it out, come outside to the garage” and told Miguel to bring the
gun that Miguel was holding for him. Miguel did as he was asked, brought the gun to the garage,
and gave it back to Asonte, thinking Asante would then leave. Asonte asked if the gun was loaded,
and Miguel told him that it was. Asonte then pointed the gun at Miguel’s face. Miguel asked
Asonte what he was doing and pushed the gun away, but Asonte again pointed it at him and this
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No. 1-18-2305
time pulled one of the hammers back. Miguel grabbed the gun and pointed it up in the air. He
shoved the gun toward Asonte, hitting him with it. Asonte then called Miguel a “bitch,” Miguel
took the gun out of Asonte’s hands, and Asonte put one hand up to protect himself. Miguel said
that his “judgment was rushed,” he was “scared” and he “just reacted,” pulling the second hammer
back on the gun and shooting Asonte. Miguel then took a step forward and shot Asonte a second
time. Miguel clarified that both shots were fired around the same time. When he had previously
told the police that five seconds passed in between the two shots, he had not actually been sure of
how much time had passed; that was just his way of saying it happened very quickly. Asonte did
not touch Miguel, move toward Miguel, or threaten Miguel in any way except by pointing the gun
at him. Miguel maintained, however, that he thought Asonte was going to shoot him when he
pointed the gun in his face.
¶ 14 Miguel immediately knew that Asonte was dead and went to hide the gun back under his
box spring. He then dragged Asonte’s body down towards a neighbor’s house. Miguel
unsuccessfully tried to clean up the blood in the garage with a blanket, a comforter, and a bucket
of water.
¶ 15 Miguel first told police that he had not been in the garage that night, but that was not true.
He also told police that Asonte had brought the gun with him that night, but that was also not true.
Although in his interview Miguel agreed with the police when they suggested that he “moved in
for the kill” and “just finished [Asonte] off,” at trial he insisted he did not mean that. The officer
questioning him seemed like “a nice guy” and Miguel was under the impression that the officer
understood that Miguel had been acting in self-defense.
¶ 16 In addition to first degree murder, the jury was instructed on second degree murder and
self-defense. After deliberation, Miguel was found guilty of first degree murder and the jury also
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No. 1-18-2305
found that he personally discharged the firearm that caused Asonte’s death. The trial court denied
Miguel’s motion for a new trial.
¶ 17 At sentencing, the trial court considered the presentence investigation report and testimony
from several witnesses. The State presented evidence of Miguel’s participation in a fight while in
jail—one that involved 15 other individuals—and a victim impact statement from Asonte’s
mother. In mitigation, the court heard from Miguel and his mother that, at the time of this crime,
Miguel had been going to school and working part time with his mother at South Shore Hospital.
Miguel also expressed deep regret at having killed his friend and for the loss to Asonte’s family.
¶ 18 The sentencing judge stated that, in aggravation, she had considered the seriousness of the
offense and the fact the jury found that Miguel was not acting in self-defense. She recognized,
however, that his crime had resulted, at least in part, from “a lack of maturity.” She noted that she
had “watched [Miguel] grow” over the six years she had presided over the case and pointed out
that he “was doing things with his life,” had “never been in trouble before,” did not “come to court
with any history, juvenile history, nothing,” and had had family there to support him at “each and
every court date.”
¶ 19 The judge ultimately sentenced Miguel to 40 years of imprisonment, electing not to impose
the 25-year gun enhancement for discharging a firearm that caused death or great bodily injury.
She noted that since Miguel would be released at the age of 57, he would be “young enough to be
rehabilitated and go on with his life after this tragic incident.”
¶ 20 The court denied Miguel’s motion to reconsider his sentence.
¶ 21 This appeal follows.
¶ 22 II. JURISDICTION
¶ 23 The trial court sentenced Miguel on October 18, 2018, and Miguel timely filed his notice
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No. 1-18-2305
of appeal on October 24, 2018. We have jurisdiction pursuant to article VI, section 6 of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6), and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)
and Rule 606 (eff. July 1, 2017), governing appeals from final judgments of conviction in criminal
cases.
¶ 24 III. ANALYSIS
¶ 25 On appeal, Miguel argues that his conviction should be reduced from first to second degree
murder because he had a subjective, though unreasonable, fear for his life when he shot Asonte.
Miguel also argues that his sentence is unconstitutional under People v. Buffer, 2019 IL 122327,
or, in the alternative, that this case should be remanded for reconsideration in light of Buffer.
¶ 26 A. Miguel’s Conviction for First Degree Murder Is Supported by the Evidence
¶ 27 Second degree murder is a “lesser mitigated” (emphasis omitted) offense of first degree
murder. People v. Jeffries, 164 Ill. 2d 104, 122 (1995). “The imperfect self-defense form of second
degree murder occurs when, “at the time of the killing [the defendant] believes the circumstances
to be such that, if they existed, would justify or exonerate the killing under the principles stated in
Article 7 of [the Criminal Code of 2012], but his or her belief is unreasonable.” 720 ILCS 5/9-
2(a)(2) (West 2018). Self-defense is one such justification and exists where “(1) force is threatened
against a person; (2) the person threatened is not the aggressor; (3) the danger of harm was
imminent; (4) the threatened force was unlawful; (5) he actually and subjectively believed a danger
existed which required the use of the force applied; and (6) his beliefs were objectively
reasonable.” Jeffries, 164 Ill. 2d at 128. Once the State has established the elements of first degree
murder, it is the defendant’s burden to prove by a preponderance of the evidence, not that these
circumstances were in fact present, but that he or she believed them to be, and that the offense
should thus be reduced to second degree murder. Id. § 5/9-2(a)(2), (c) (West 2018).
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¶ 28 “The question of whether a defendant’s actions were committed under mitigating
circumstances—here, the question of whether defendant unreasonably believed that circumstances
justifying the use of lethal force were present—presents a question of fact.” People v. Romero,
387 Ill. App. 3d 954, 967-968 (2008). “The finder of fact has the responsibility to determine the
credibility and weight of witness testimony, to resolve conflicts and inconsistencies present
therein, and to draw reasonable inferences from the evidence.” People v. Simon, 2011 IL App (1st)
091197, ¶ 52. On review, this court considers “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found that the mitigating
factors were not present.” People v. Blackwell, 171 Ill. 2d 338, 358 (1996).
¶ 29 On this record, a rational trier of fact could have found that Miguel failed to show by a
preponderance of the evidence that he actually and subjectively believed shooting Asonte was
necessary to prevent harm to himself. Miguel’s testimony regarding his subjective belief of danger
was contradictory. Although Miguel stated at trial that he was “scared,” he told police that he was
“scared and angry” and “blacked out.” Miguel also testified that Asonte called him a “bitch,” which
he said that he did not take lightly. Although Miguel testified at trial that he shot Asonte twice in
quick succession, he initially told police that several seconds passed between the first and second
shots. And while he later repudiated the statement at trial, he initially agreed with the police that
he moved in and “just finished” Asonte with the second shot. Also, Miguel told the police when
questioned after his arrest that, even after he gained control of the gun, he was still afraid that
Asonte might have another weapon, but he made no mention of this at trial. These contradictions
could have left a reasonable juror unconvinced that Miguel acted because he believed that shooting
Asonte was necessary to prevent harm to himself.
¶ 30 A rational juror was also entitled to consider the evidence that Miguel hid the murder
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No. 1-18-2305
weapon under his bed, attempted to clean the crime scene and dispose of bloody clothing, and
dragged Asonte’s body into a neighbor’s yard, away from where the shooting took place. Miguel
also initially denied being in the garage to police and later said that Asonte had brought the gun
that night. These false exculpatory statements made to the police offer some additional support for
the jury’s conclusion that Miguel was guilty of first degree murder. A rational juror could have
inferred from this evidence that Miguel did not in fact shoot Asonte because he believed that his
actions were necessary for self-defense. See People v. Seiber, 76 Ill. App. 3d 9, 14 (1979) (noting
that the jury “could have considered the defendant’s flight from the scene and discarding of the
pistol, as well as his attempt to give the pistol away, as evidence of his consciousness of guilt and
thereby reject[ed] [his] theory of self defense”); People v. Harmon, 2015 IL App (1st) 122345,
¶ 59 (noting that “[t]he fact that [the] defendant disposed of the weapon also indicate[d] a guilty
state of mind and knowledge that he did not merely act in self-defense, even under an unreasonable
belief in self-defense.”).
¶ 31 In sum, a rational juror could have found that his inconsistent explanations as to what he
was thinking and feeling at the time of the shooting and his actions after the shooting made his
claim of self-defense, even imperfect self-defense, not credible. This court will not substitute its
judgment for that of the fact-finder on questions involving the credibility of witnesses. People v.
Gray, 2017 IL 120958, ¶ 35.
¶ 32 “[T]he power to reduce a conviction of first degree murder to second degree murder should
be cautiously exercised.” People v. Hooker, 249 Ill. App. 3d 394, 403 (1993). Viewing the
evidence in the light most favorable to the State, we find that a rational juror could have concluded
that Miguel failed to prove imperfect self defense by a preponderance of the evidence. Therefore,
we will not reduce his conviction to second degree murder.
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¶ 33 B. Miguel’s Sentence Is Constitutional
¶ 34 Miguel also argues that his 40-year sentence is unconstitutional because it is a de facto life
sentence that may only be imposed after a finding of permanent incorrigibility under People v.
Buffer, 2019 IL 122327.
¶ 35 The eighth amendment to the United States Constitution prohibits excessive and
disproportionate punishment, and this prohibition applies to the states through the fourteenth
amendment. U.S. Const., amends. VIII, XIV. The United States Supreme Court held in Miller v.
Alabama, 567 U.S. 460, 465 (2012), that “mandatory life without parole for those under the age
of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
punishments.’ ” In Montgomery v. Louisiana, 577 U.S. 190, 212 (2016), the Court declared the
holding it had announced in Miller was a new substantive rule of constitutional law with retroactive
effect. Because the Court determined in Miller “that sentencing a child to life without parole is
excessive for all but the rare juvenile offender whose crime reflects irreparable corruption” or
“permanent incorrigibility,” life without parole was rendered an unconstitutional penalty for an
entire class of defendants—“juvenile offenders whose crimes [instead] reflect the transient
immaturity of youth.” (Internal quotation marks omitted.) Id. at 208, 209.
¶ 36 In 2016, our own supreme court extended Miller’s holding barring mandatory life
sentences for juveniles to include mandatory de facto life sentences, sentences so long that they
were the functional equivalent of life without parole. People v. Reyes, 2016 IL 119271, ¶ 9. And
in 2017, it extended the holding to discretionary life sentences. People v. Holman, 2017 IL 120655,
¶ 40. The question remained, however, what length a sentence, mandatory or discretionary, must
be to constitute a de facto life sentence. That question was answered in 2019, when the court
decided Buffer, 2019 IL 122327. Noting that courts had “struggled to formulate an exact
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calculation of a de facto life sentence,” and that the issue remained very much unresolved, the
court looked for guidance to recent legislation overhauling the sentencing scheme for juvenile
defendants. Id. ¶¶ 32, 34, 36. It concluded from a provision in that new law that the General
Assembly would draw the line at 40 years. Id. ¶¶ 37-41.
¶ 37 When the Buffer court drew this line, it made clear that any sentence over 40 years was a
de facto life sentence and any “sentence of 40 years or less” imposed on a juvenile offender was
not. Id. at ¶ 41. Miguel was sentenced to exactly 40 years of imprisonment and thus he did not
receive a de facto life sentence. He therefore cannot prevail on his eighth-amendment claim—he
did not receive a de facto life sentence.
¶ 38 C. Remandment for Resentencing Is Nevertheless Proper
¶ 39 Miguel also argues that, even if the 40-year sentence imposed here was not a de facto life
sentence, this case should be remanded for resentencing, since the record indicates that the judge
did not intend to impose on Miguel—whom she clearly found had rehabilitative potential—a
sentence that was one day short of life in prison. We agree that the specific facts of this case require
a remand.
¶ 40 Illinois Supreme Court Rule 366 provides that, “in its discretion, and on such terms as it
deems just,” this court may “grant any relief, including a remandment *** that the case may
require.” Ill. Sup. Ct. R. 366(a)(1), (5) (eff. Feb. 1, 1994). We have exercised this power to remand
when the circumstances underlying a sentencing judge’s exercise of discretion are called into
question by subsequent events. For example, where one of several convictions is reversed on direct
appeal, we will remand for resentencing where we cannot determine whether the conviction
vacated could have influenced the circuit court in imposing sentences for the other convictions.
See, e.g., People v. Alejos, 97 Ill. 2d 502, 511 (1983); People v. Figures, 216 Ill. App. 3d 398, 404
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(1991). The sentencing judge’s analysis and comments in this case call into question whether she
would have imposed a 40-year sentence if she had known that our supreme court would soon hold
that this was the longest constitutionally permissible sentence available.
¶ 41 There can be no doubt that the sentencing judge concluded both that Miguel’s crime
reflected the transient immaturity of youth and that Miguel himself had significant rehabilitative
potential. The judge stated at sentencing “there’s certainly a lack of maturity here”; noted that she
had “watched [Miguel] grow” over the six years she had presided over the case; and, commenting
on his likelihood for rehabilitation, emphasized that Miguel, who had been going to school and
working part time with his mother at a hospital, “was doing things with his life,” had “never been
in trouble before,” did not “come to court with any history, juvenile history, nothing,” and had had
family there to support him at “each and every court date.” The judge believed that with the
sentence imposed, Miguel would be “young enough” upon release “to be rehabilitated and go on
with his life after this tragic incident.”
¶ 42 For purposes of applying the holding in Miller, our supreme court has drawn a clear line:
sentences greater than 40 years are de facto life sentences; sentences of 40 years or less are not.
Buffer, 2019 IL 122327, ¶ 40; see also Gunn, 2020 IL App (1st) 170542, ¶¶ 132-33 (observing that
“[t]he Buffer court was aware that some defendants would fall close to the line that it was drawing,
but it believed that a categorical, bright-line rule was nonetheless desirable”). We fully respect and
appreciate that line and agree that a bright-line was desirable and necessary. In Buffer our supreme
court made it clear both that this sentence was constitutional and that it was the longest sentence
that could have been imposed, once a finding was made that Miguel had rehabilitative potential.
¶ 43 In light of the stark line our supreme court drew in Buffer and the unique facts of this case,
we think the appropriate remedy is to remand. This record undermines any conclusion that this
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No. 1-18-2305
sentencing judge saw Miguel as a mere hair’s breadth away from being one of those “rare juvenile
offender[s]” referred to in Miller, “whose crime reflects irreparable corruption” and who thus
should be imprisoned for life. Miller, 567 U.S. at 479-80. Everything the sentencing judge said
suggests just the opposite. She emphasized Miguel’s complete lack of any juvenile record, knew
that he had been in school and working before this crime, appreciated that he was “doing things
with his life,” and expressed her understanding that he would have a real opportunity to rejoin
society. That understanding, however, was undercut by our supreme court’s conclusion in Buffer
that juveniles sentenced to more than 40 years had been given life sentences.
¶ 44 Miguel’s sentence of 40 years was imposed after Miller, Montgomery, and Holman had
been decided, but before our supreme court held in Buffer that any sentence exceeding 40 years
was a de facto life sentence. The judge who sentenced Miguel thus could not have known that she
was imposing the most severe sentence available for a juvenile offender whose crime reflected the
immaturity of youth and who, by her own assessment, possessed rehabilitative potential. We have
the power on this direct appeal to allow this sentencing judge to reconsider, in light of the altered
significance of a 40-year sentence following Buffer, whether that is the sentence that she finds to
be appropriate for this defendant.
¶ 45 The judge in this case took great care in imposing Miguel’s sentence, holding a lengthy
sentencing hearing and explaining carefully why she did not impose the gun enhancement and why
she imposed the sentence that she did. Where, as here, the case is still pending on direct appeal,
the legal landscape has shifted, such that this is now the lengthiest sentence that could have been
imposed on this defendant, and the sentencing judge’s statements call into question whether that
is what she wanted to do in this case, it seems only fair to both the judge and to Miguel to allow
the judge to reconsider the sentence in light of Buffer.
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¶ 46 The dissent (infra ¶ 55) questions our statement that the 40-year sentence imposed on
Miguel was the longest sentence that could have constitutionally been imposed. However, it clearly
was. Given the sentencing judge’s finding that Miguel had rehabilitative potential, any longer
sentence would have violated the eighth amendment of the United States Constitution.
¶ 47 The dissent’s suggestion that the eighth amendment is satisfied and sentences in excess of
40 years, although they are life sentences, can be imposed so long as “the attributes of youth are
considered” (infra ¶ 55) rests on what we view as an incomplete understanding of the substantive
rule imposed in the Miller line of cases. As noted above, the import of those cases is not just that
youth must be considered, but that, except in rare cases, a life sentence cannot be imposed on a
defendant who was a juvenile at the time of the crime.
¶ 48 III. CONCLUSION
¶ 49 For the foregoing reasons, the jury’s finding of guilt on the charge of first degree murder
is affirmed, Miguel’s sentence of 40 years of imprisonment is vacated, and this case is remanded
for resentencing.
¶ 50 Affirmed in part and reversed in part.
¶ 51 PRESIDING JUSTICE PIERCE, dissenting in part.
¶ 52 As the majority acknowledges, defendant was sentenced to exactly 40 years’
imprisonment. Therefore, his sentence is not a de facto life sentence and does not implicate the
constitutional sentencing issues concerning juveniles under Miller or Buffer. Buffer found that “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.” Id. at ¶ 41. See also People v. Villalobos, IL
App (1st) 171512; People v. Gunn, 2020 IL App (1st) 170542.
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¶ 53 Nevertheless, the majority has capitulated to defendant’s argument that even if his 40-year
sentence is not a de facto life sentence, which it clearly is not, it is “a mere one day away from
being one,” and thus we should remand for resentencing. This goes against everything our
supreme court articulated in Buffer. Our supreme court in Buffer did not declare a sentence that is
“one day short” or “close to” or “almost” more than 40 years a de facto life sentence. The Buffer
court established a bright-line 40-year rule knowing that there were some defendants that would
fall precariously close to the cut off. In Gunn, this court observed that “[t]he Buffer court was
aware that some defendants would fall close to the line that it was drawing, but it believed that a
categorical, bright-line rule was nonetheless desirable. *** The Buffer court stated that it
understood that drawing a line was subject to the objections always raised against categorical rules,
but nonetheless it decided ‘a line must be drawn.’ [Citation].” Id. at ¶¶ 132-133 (quoting Buffer,
2019 IL 122327, ¶ 29). Discussing the sentencing guidelines for juveniles implemented by the
General Assembly in light of the U.S. Supreme Court’s ruling in Miller v. Alabama, 567 U.S. 460
(2012), as set forth in 730 ILCS 5/5-4.5-105 (West 2016), the Buffer court noted that the 40-year
cut off “does not originate in court decisions, legal literature, or statistical data. It is not drawn
from a hat. Rather, this number finds its origin in the entity best suited to make such a
determination—the legislature.” Id. at ¶ 40.
¶ 54 Mindful of the reasons expressed in our supreme court’s decision, I find it
incomprehensible that the majority feels compelled to remand this case for a new sentencing
hearing, doing everything but telling the circuit court to change its mind, when Buffer was not
violated in this case. Furthermore, the fact that the circuit court clearly articulated and considered
both the mitigating and aggravating factors and carefully considered defendant’s age, potential for
rehabilitation, and other characteristics of youth before she imposed his 40-year sentence shows
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an exercise of her considered judgment and discretion. This is also shown by the court’s decision
to not impose a maximum sentence of 60 years and, significantly, refusing to impose a
discretionary firearms enhancement of 25 years.
¶ 55 I also find no justification for the remand under Rule 366 under the guise of the trial court
having abused its discretion in the sentence it imposed. Ill. Sup. Ct. R. 366(a)(1), (5) (eff. Feb. 1,
1994). There has been no finding of an abuse of discretion (Supra ¶ 40), nor could there be because
the sentence in question falls within the range authorized by the legislature. And the majority is
also wrong in declaring that the 40-year sentence is the maximum sentence that could be
constitutionally imposed (Supra ¶ 40). People v. Holman, 2017 IL 120655. The majority well
knows a sentence in excess of 40 years imposed on a juvenile is permissible as long as the attributes
of youth are considered. Id. ¶ 46. As we stated in People v. Croft, “a key feature of the juvenile's
sentencing hearing is that the defendant had the ‘opportunity to present evidence to show that his
criminal conduct was the product of immaturity and not incorrigibility.’ ” Croft, 2018 IL App (1st)
150043, ¶ 23 (quoting Holman, 2017 IL 120655, ¶ 49). In my view, even though Miller and Buffer
do not apply, under Holman the record on appeal in this case is unquestionably sufficient to find
without question that the circuit court considered defendant’s age, social history, educational
history, and criminal history and the jury’s rejection of the defense of self-defense in imposing a
sentence that was appropriate for the brutal execution underlying his sentence.
¶ 56 Finally, the majority finds comfort in the concept that de facto life sentences for a juvenile
can only apply to that “rare” individual who warrants such a sentence. The term “rare juvenile”
was coined in the context of mandatory life sentencing. I have yet to understand just what a “rare”
juvenile means in the context of discretionary sentencing. Shooting someone in the face with a
shotgun seems to me to be something a “rare” juvenile would do. This was no accident, and the
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jury unanimously found defendant guilty of first degree murder. “Rare” in what context or cohort?
It cannot mean that all juveniles convicted of murder are “rare” and cannot be sentenced to a
discretionary de facto life sentence because the Supreme Court and our supreme court allow
discretionary de facto life sentences for juveniles. Is it because the particular juvenile is “rare”
among all juveniles in the world, country, state or county? Or is a juvenile “rare” because he is
merely a fraction of the juvenile population charged with the most serious of offenses? It seems
obvious that most, if not all, discretionary sentences of more than 40 years for a juvenile are “rare”
but constitutionally permissible. Most, if not all, juvenile defendants are sentenced based on the
unique facts and circumstances of their crime and their background. To say a particular juvenile is
not that “rare” individual eligible for a discretionary de facto life sentence means nothing without
defining the universe he inhabits and describing what makes him “rare.” Like all imposed
discretionary sentences, it is the trial court that considers the sentencing options set by the
legislature and melds those considerations with the juvenile’s background when imposing
sentence, and as long as youth and its attributes are considered, de facto life sentences are
constitutionally permitted. Defendant, a seventeen year old, intentionally shot the decedent in the
face twice with a shotgun. The jury rejected his defense of self-defense. This is a “rare” juvenile
who received a discretionary non-de facto sentence which should be affirmed on appeal.
¶ 57 For these reasons, I respectfully dissent.
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