People v. Smith

2022 IL App (4th) 200666 FILED
April 20, 2022
NO. 4-20-0666 Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
CALVIN L. SMITH, ) No. 00CF1349.
Defendant-Appellant. )
) Honorable
) Scott D. Drazewski,
) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court, with opinion.
Presiding Justice Knecht and Justice Cavanagh concurred in the judgment and
opinion.

OPINION

¶1 On remand from this court, defendant, Calvin L. Smith, filed an amended and a

second-amended successive postconviction petition challenging his de facto life sentence under

Miller v. Alabama, 567 U.S. 460 (2012), and its progeny. The State filed an answer conceding

defendant was entitled to a new sentencing hearing. After a December 2020 sentencing hearing,

the McLean County circuit court sentenced defendant to consecutive prison sentences of 22 years

for first degree murder and 6 years for armed robbery. Defense counsel filed a motion to reconsider

defendant’s sentence, and defendant filed pro se an addendum to the motion. After a hearing, the

court denied the motion to reconsider defendant’s sentence.

¶2 Defendant appeals, asserting the circuit court abused its discretion by increasing

defendant’s first degree murder sentence from the statutory minimum, based in part on the
aggravating factor of deterring others when defendant was a minor at the time of the offense. We

affirm.

¶3 I. BACKGROUND

¶4 A. Trial Proceedings

¶5 In November 2000, a grand jury indicted defendant on single counts of intentional,

knowing, and felony murder (720 ILCS 5/9-1(a)(1), (2), (3) (West 2000)) for the November 8,

2000, death of Mahendra Patel. The grand jury also indicted defendant on single counts of armed

robbery (720 ILCS 5/18-2(a)(4) (West 2000)) and aggravated battery with a firearm (720 ILCS

5/12-4.2(a)(1) (West 2000)). The aggravated battery indictment was later dismissed. Each of the

four remaining charges stated the offense was subject to an enhanced penalty under section 5-8-

1(a)(1)(d)(iii) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West Supp.

1999)), which provided that, “if, during the commission of the offense, the person personally

discharged a firearm that proximately caused *** death to another person, 25 years or up to a term

of natural life shall be added to the term of imprisonment imposed by the court.”

¶6 After a 2001 trial, a jury found defendant guilty of armed robbery and returned a

general verdict of guilty for first degree murder. The jury also found defendant personally

discharged the firearm that killed Patel. Defendant was 17 at the time of the offenses. At a

December 17, 2001, joint hearing, the circuit court denied defendant’s posttrial motion and

sentenced him to 55 years’ imprisonment on one count of first degree murder (knowing) to run

consecutively with 31 years’ imprisonment for armed robbery, resulting in an aggregate prison

sentence of 86 years. Defendant filed a motion to reduce his sentence, which the court denied.

¶7 B. Direct Appeal

¶8 On direct appeal, this court affirmed the circuit court’s judgment with the

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modification that defendant’s knowing-murder conviction should be vacated, his

intentional-murder conviction should be reinstated, and the cause remanded for resentencing on

the intentional-murder conviction. People v. Smith, 347 Ill. App. 3d 1127, 867 N.E.2d 127 (2004)

(table) (unpublished order under Illinois Supreme Court Rule 23). Defendant filed a petition for

leave to appeal, which the Illinois Supreme Court denied. People v. Smith, 211 Ill. 2d 607, 823

N.E.2d 976 (2004) (table). In January 2005, the circuit court amended the sentencing judgment to

reflect defendant was sentenced to 55 years’ imprisonment for intentional first degree murder. The

court did not hold a new sentencing hearing on remand.

¶9 C. Prior Collateral Proceedings

¶ 10 In April 2007, defendant filed pro se a petition for postconviction relief under the

Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2006)). In July 2007, the circuit

court summarily dismissed defendant’s postconviction petition, finding it frivolous and patently

without merit. This court affirmed the dismissal. People v. Smith, 382 Ill. App. 3d 1229, 967

N.E.2d 504 (2008) (table) (unpublished order under Illinois Supreme Court Rule 23).

¶ 11 In September 2007, while his postconviction petition appeal was pending,

defendant filed pro se a motion seeking posttrial relief under section 2-1401 of the Code of Civil

Procedure (735 ILCS 5/2-1401 (West Supp. 2007)) based on a codefendant’s claim defendant was

actually innocent of first degree murder. The circuit court found defendant’s motion was untimely

because it was filed more than two years after the judgment of conviction. It also concluded the

evidence of defendant’s guilt was overwhelming and found no merit in the motion. Accordingly,

the court sua sponte entered judgment against defendant. This court affirmed the circuit court’s

judgment. People v. Smith, 388 Ill. App. 3d 1153, 982 N.E.2d 293 (2009) (table) (unpublished

order under Illinois Supreme Court Rule 23).

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¶ 12 In September 2009, defendant filed pro se his first motion for leave to file a

successive postconviction petition, claiming he had newly discovered evidence of actual

innocence. In February 2010, the circuit court denied the motion for leave to file a successive

postconviction petition, finding defendant had raised some of the issues in prior proceedings and

the claims of actual innocence were not based upon any newly discovered evidence. Defendant

appealed the denial, and this court granted the Office of the State Appellate Defender’s motion for

leave to withdraw and affirmed the circuit court’s judgment. People v. Smith, 2011 IL App (4th)

100167-U, appeal denied, No. 113384 (Ill. Jan. 25, 2012).

¶ 13 While his appeal from the denial of his first request to file a successive

postconviction petition was pending, defendant filed pro se a second motion for leave to file a

successive postconviction petition in November 2010. In the attached postconviction petition,

defendant again claimed actual innocence based on newly discovered evidence. In September

2011, the circuit court denied defendant’s second motion for leave to file a successive

postconviction petition, again finding defendant’s actual innocence claim was not based on newly

discovered evidence. Defendant appealed the denial, and this court affirmed the denial of

defendant’s second motion for leave to file a successive postconviction petition. People v. Smith,

2013 IL App (4th) 110876-U, ¶ 37, appeal denied, No. 116146 (Ill. Sept. 25, 2013). However, on

appeal from the denial of his second motion for leave to file a successive postconviction petition,

defendant also argued the 25-year sentence enhancement for personally discharging a firearm that

caused the death of another during the commission of an armed robbery violated the proportionate

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). The State conceded the

argument, and this court agreed. Smith, 2013 IL App (4th) 110876-U, ¶ 39. We vacated

defendant’s 31-year sentence for armed robbery and remanded the cause for resentencing on

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defendant’s armed robbery conviction with a sentencing range of 6 to 30 years in prison. Smith,

2013 IL App (4th) 110876-U, ¶¶ 45-46. On remand for resentencing on the armed robbery

conviction, the circuit court sentenced defendant to 10 years’ imprisonment for armed robbery to

run consecutive to his 55-year prison sentence for first degree murder, which resulted in an

aggregate prison sentence of 65 years.

¶ 14 In October 2014, defendant filed pro se his third motion for leave to file a

successive postconviction petition. Defendant again claimed actual innocence based on newly

discovered evidence and raised a claim his due process rights were violated because the judge who

decided his first two motions for leave to file a successive postconviction petition was the

prosecutor that signed and filed the original charges in this case. In January 2015, the circuit court

granted defendant leave to file a successive postconviction petition and appointed defendant

counsel. In February 2016, the State filed a motion to dismiss defendant’s successive

postconviction petition, which the circuit court granted. Defendant appealed, and this court

affirmed the dismissal of defendant’s third motion for leave to file a successive postconviction

petition. People v. Smith, 2018 IL App (4th) 160308-U, ¶ 63.

¶ 15 In May 2017, while his appeal from the dismissal of his 2014 successive

postconviction petition was pending, defendant filed pro se his fourth motion for leave to file a

successive postconviction petition. In his fourth motion, defendant asserted his 65-year sentence

was unconstitutional as applied to him under the eighth amendment of the United States

Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11) because it was a de facto life sentence. In October 2017,

the circuit court denied defendant’s motion. Defendant appealed, and this court remanded the cause

to the circuit court for further proceedings on defendant’s May 2017 successive postconviction

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petition. Smith, 2018 IL App (4th) 160308-U, ¶ 81. On remand, defendant was appointed counsel,

who filed an amended successive postconviction petition and a second-amended successive

postconviction petition. The State conceded defendant was entitled to a new sentencing hearing

because his 65-year sentence was a de facto life sentence.

¶ 16 D. Resentencing

¶ 17 On December 3, 2020, the circuit court held a new sentencing hearing. The State

did not present any evidence in aggravation beyond the presentence report. Defendant presented

(1) a November 12, 2020, forensic psychological evaluation by Brooke Kraushaar, (2) a group

exhibit of character letters and certificates of completion, and (3) a three-page document from the

Illinois Department of Corrections website. Defendant also made a statement in allocution

expressing remorse. In its argument, the State did not assert defendant’s crime reflected irreparable

corruption. It further took no position on the length of sentences for defendant’s crimes but asserted

the two sentences should run consecutively. Defendant requested the minimum sentences for both

crimes. After hearing the parties’ arguments, the court found defendant’s conduct did not show

irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility

of rehabilitation. The court first sentenced defendant to six years for armed robbery to run

consecutive to the sentence for first degree murder. The court stated, inter alia, the following

regarding the sentence for first degree murder:

“But I can’t in good conscience, and within my discretion as well, impose

the statutory mandated minimum of 20 years. And I am going to explain why. One,

he was the shooter, as I have already explained, more culpable with the commission

of the offense than the others. And the second reason is the statute when it talks

about factors in aggravation, talks about deterrence, it doesn’t talk about retribution.

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 And so retribution is not a factor, and although I am aware that the family of Mr.

Patel take no interest or have no opinion with regard to what sentence ought or

should be imposed because they want to leave this behind them, that the court,

nonetheless, needs to consider the issue of deterrence as it would have an impact

upon others in society who could otherwise or may otherwise think about

committing this type of an offense. So, I am going to impose a 22-year sentence for

the murder.”

¶ 18 Defense counsel filed a motion to reconsider defendant’s sentence and a

memorandum of law in support of the motion. The motion asserted defendant’s armed robbery

conviction should be vacated or, in the alternative, the court should allow defendant’s first degree

murder and armed robbery convictions to be served concurrently. The motion also claimed

defendant’s sentences were excessive in light of the evidence presented at the sentencing hearing

and the court did not follow article I, section 11 of the Illinois Constitution (Ill. Const. 1970, art. I,

§ 11). Defendant filed pro se a motion to reconsider, asserting his aggregate 28-year prison

sentence violated the rehabilitation clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11),

the deterrence of the offender and others could not be considered an aggravating factor under

Miller, the deterrence aggravating factor violated the rehabilitation clause, and his mandatory

consecutive sentences violated Miller. Defendant also requested his first degree murder sentence

be reduced to 20 years’ imprisonment.

¶ 19 On December 29, 2020, the circuit court held a hearing on the motion to reconsider

defendant’s sentence. At defense counsel’s request, the court considered defendant’s pro se motion

as an addendum to defense counsel’s motion to reconsider defendant’s sentence. After hearing the

parties’ arguments, the court denied the motion to reconsider. As to the deterrence of others, the

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court found the facts of People v. McKinley, 2020 IL App (1st) 191907, 176 N.E.3d 166, cited by

defendant, were distinguishable. Moreover, the court noted the McKinley court’s finding the trial

judge gave improper weight to the deterrence factor did not mean “the court was constrained to

apply no weight to deterrence as a factor.” Additionally, the court found the United States Supreme

Court’s decision in Montgomery v. Louisiana, 577 U.S. 190 (2016), did not say deterrence was not

to be considered in a juvenile sentencing hearing. The court also pointed out the Illinois

Constitution calls for a balancing of the retributive and rehabilitative purposes of punishment.

¶ 20 On December 30, 2020, defendant filed his notice of appeal in sufficient

compliance with Illinois Supreme Court Rule 606 (eff. July 1, 2017). On January 8, 2021,

defendant filed a timely amended notice of appeal, clarifying his appeal was from his resentencing

and the denial of his motion to reconsider. See Ill. S. Ct. Rs. 606(d), 303(b)(5) (eff. July 1, 2017).

Accordingly, this court has jurisdiction of defendant’s appeal under Illinois Supreme Court Rule

603 (eff. Feb. 6, 2013).

¶ 21 II. ANALYSIS

¶ 22 While defendant uses the language the circuit court “abused its discretion” in

sentencing him to 22 years’ imprisonment for first degree murder, he is essentially arguing a circuit

court cannot as a matter of law consider the aggravating factor of deterrence (730 ILCS

5/5-5-3.2(a)(7) (West Supp. 2019)) in sentencing a person who committed the offense as a

juvenile. Here, defendant’s sentence was only two years above the minimum sentence, and the

circuit court also noted, in sentencing defendant above the statutory minimum, defendant was the

person who actually shot the victim. As such, the weight given to the deterrence factor was very

little in this case, as evidenced by defendant’s request in his appellant brief for only a one-year

reduction in his sentence. Thus, to find the circuit court gave improper weight to the deterrence

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factor would be tantamount to finding no weight can be given at all to deterrence. Since defendant

presents a question of law, our standard of review is de novo. See People v. Kinnerson, 2020 IL

App (4th) 170650, ¶ 40, 170 N.E.3d 142.

¶ 23 Since 2005, the United States Supreme Court has written several decisions

regarding the appropriateness of sentences for offenders who were under the age of 18 when they

committed their crimes and has found the eighth amendment prohibits certain harsh sentences for

such offenders. First, in Roper v. Simmons, 543 U.S. 551, 578 (2005), the Court held the death

penalty unconstitutional for juvenile offenders. It concluded neither retribution nor deterrence, the

two distinct social purposes served by the death penalty, provided adequate justification for

imposing the death penalty on juvenile offenders. Roper, 543 U.S. at 572. As to deterrence, the

Court explained it was unclear whether the death penalty had a significant or even measurable

deterrent effect on juveniles. Roper, 543 U.S. at 571. The absence of evidence of a deterrent effect

concerned the Roper Court because the same characteristics that render juveniles less culpable

than adults also suggests juveniles will be less susceptible to deterrence. The Roper Court quoted

the following observation from the plurality in Thompson v. Oklahoma, 487 U.S. 815 (1988):

“ ‘[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches

any weight to the possibility of execution is so remote as to be virtually nonexistent.’ ” Roper, 543

U.S. at 571-72 (quoting Thompson, 487 U.S. at 837). The Court noted, to the extent the juvenile

death penalty might have residual deterrent effect, the punishment of life imprisonment without

the possibility of parole is itself a severe sanction, particularly for a young person. Roper, 543 U.S.

at 572.

¶ 24 Next, in Graham v. Florida, 560 U.S. 48, 74 (2010), the Supreme Court concluded

a life sentence without the possibility of parole for juveniles not convicted of homicide was

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unconstitutional. As to that punishment, the Court found none of the legitimate goals of penal

sanctions—retribution, deterrence, incapacitation, and rehabilitation—provided an adequate

justification for the punishment. Graham, 560 U.S. at 71. With regard to deterrence, the Court first

cited the language from Roper that juveniles are less susceptible to deterrence. Graham, 560 U.S.

at 72. It then recognized the following: “Because juveniles’ ‘lack of maturity and an

underdeveloped sense of responsibility…often result in impetuous and ill-considered actions and

decisions,’ Johnson v. Texas, 509 U.S. 350, 367 (1993), they are less likely to take a possible

punishment into consideration when making decisions.” Graham, 560 U.S. at 72. The Court

emphasized that was particularly so when the punishment was rarely imposed. Graham, 560 U.S.

at 72. While it was “perhaps plausible” the sentence could be a deterrent in a few cases, the

punishment cannot be “grossly disproportionate in light of the justification offered.” Graham, 560

U.S. at 72. The Court concluded, “in light of juvenile nonhomicide offenders’ diminished moral

responsibility, any limited deterrent effect provided by life without parole is not enough to justify

the sentence.” Graham, 560 U.S. at 72.

¶ 25 Third was the decision in Miller, 567 U.S. at 489, where the Supreme Court found

unconstitutional a sentencing scheme that mandated life in prison without the possibility of parole

for juvenile offenders, including those convicted of homicide. The Court did not foreclose

sentencing a juvenile convicted of homicide to life in prison, but it emphasized the judge or jury

must have the opportunity to consider mitigating factors—including the offender’s youth and

attendant characteristics—before imposing the harshest possible penalty on a juvenile. Miller, 567

U.S. at 483, 489. In its analysis, the Court noted its prior decisions in Roper and Graham

emphasized “the distinctive attributes of youth diminish the penological justifications for imposing

the harshest sentences on juvenile offenders, even when they commit terrible crimes.” Miller, 567

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U.S. at 472. Citing Graham and Roper, it found deterrence did not work in that context because

juvenile characteristics such as immaturity, recklessness, and impetuosity make juveniles less

likely to consider potential punishment. Miller, 567 U.S. at 472.

¶ 26 Later, in Montgomery, 577 U.S. at 212, the Supreme Court found Miller announced

a new substantive rule of constitutional law that is retroactive on state collateral review. The

Montgomery Court also emphasized life imprisonment without parole was unconstitutional “for

all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

Montgomery, 577 U.S. at 209. As to deterrence, the Court reiterated the aforementioned language

in Miller regarding deterrence. Montgomery, 577 U.S. at 207.

¶ 27 In its most recent case on juvenile sentencing, Jones v. Mississippi, 593 U.S. ___,

___, 141 S. Ct. 1307, 1311 (2021), the Court held the defendant’s eighth amendment argument

“the sentencer must make a finding of permanent incorrigibility” before imposing a discretionary

life without parole sentence was “inconsistent with the Court’s precedents.” The Court further

explained the eighth amendment allows juvenile offenders to be sentenced to life without parole

as long as the sentence is not mandatory and the sentencing court had discretion to consider youth

and attendant characteristics. Jones, 593 U.S. at ___, 141 S. Ct. at 1314-15. It emphasized specific

fact-finding was not required. Jones, 593 U.S. at ___, 141 S. Ct. at 1314-15. The Court did not

address deterrence in the Jones decision.

¶ 28 Defendant asserts the circuit court read Montgomery too narrowly and Montgomery

reiterated what the Supreme Court found in Miller, Graham, and Roper. While we agree

Montgomery reiterated the earlier Supreme Court’s comments on deterrence, we disagree the

circuit court read the case too narrowly. Instead, it is defendant who reads the Supreme Court cases

too narrowly. In doing so, he completely disregards Jones. In the aforementioned Supreme Court

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cases, the Court was addressing the harshest sentences for juvenile offenders, i.e., the death penalty

and mandatory life without the possibility of parole. The Court did not address sentences that

imposed less severe punishment like the sentence at issue in this case. Such punishments are more

common, unlike the harsh penalties addressed in the Supreme Court cases. Moreover, even with

the harshest of penalties, the Court did not foreclose the possibility of deterrence. See Roper, 543

U.S. at 572; Graham, 560 U.S. at 72. Rather, it concluded any deterrence did not justify the

harshest punishment. Roper, 543 U.S. at 572; Graham, 560 U.S. at 72; Miller, 567 U.S. at 472;

Montgomery, 577 U.S. at 207. Moreover, in Jones, 593 U.S. at ___, 141 S. Ct. at 1314-15, the

Court emphasized in homicide cases the eighth amendment only prohibits mandatory life without

parole. A sentencing court may impose life without parole on a juvenile as long as the court has

the discretion to consider youth and its attendant characteristics. Jones, 593 U.S. at ___, 141 S. Ct.

at 1314-15. Thus, a reading of all the Supreme Court cases on the subject shows the Supreme Court

has never addressed juvenile sentences that are less serious than life imprisonment. Even with life

imprisonment, the Supreme Court has placed no requirements or limitations on the sentencing

court’s discretion in sentencing juvenile offenders beyond requiring the consideration of youth and

its attendant characteristics. Accordingly, we find the Supreme Court’s decisions on sentencing

juvenile offenders do not preclude the sentencing court from considering the deterrence of others

as an aggravating factor in imposing a sentence on a juvenile offender.

¶ 29 Defendant cites two Illinois Appellate Court cases in support of his argument

deterrence of others cannot be an aggravating factor for juvenile offenders. The first is People v.

Haynie, 2020 IL App (1st) 172511, ¶¶ 22, 23, 25, 170 N.E.3d 1057, which addressed compliance

with Miller for a discretionary de facto life sentence. As such, its analysis is questionable in light

of Jones. The second case is McKinley, 2020 IL App (1st) 191907, ¶ 91, where the reviewing court

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found the defendant’s 39-year sentence was an abuse of discretion because the court disregarded

evidence of the defendant’s extensive rehabilitation and improperly considered certain sentencing

factors. Regardless of Haynie’s continued validity after Jones, the reviewing court in both cases

found the circuit court placed too much weight on deterrence. See Haynie, 2020 IL App (1st)

172511, ¶ 35 (noting “deterrence weighed heavily in the court’s mind when it sentenced

defendant”); McKinley, 2020 IL App (1st) 191907, ¶ 89 (stating “the trial judge gave improper

weight to the need to deter future criminal conduct”). The decisions did not declare deterrence

cannot be considered at all in sentencing juvenile offenders. Moreover, to the extent the two

decisions may be so interpreted, for the reasons previously stated, we believe the Supreme Court

cases on juvenile sentencing hold otherwise.

¶ 30 Accordingly, we hold sentencing courts can consider deterrence of others in

imposing a discretionary sentence on a juvenile offender. Thus, in this case, the circuit court did

not err by giving weight to that aggravating factor. Since we have found the consideration of the

aggravating factor of deterrence of others is not prohibited for juvenile offenders, we need not

address defendant’s other argument the circuit court erred by finding its consideration of

deterrence was supported by article I, section 11 of the Illinois Constitution (Ill. Const. 1970, art.

I, § 11).

¶ 31 III. CONCLUSION

¶ 32 For the reasons stated, we affirm the McLean County circuit court’s judgment.

¶ 33 Affirmed.

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 No. 4-20-0666

Cite as: People v. Smith, 2022 IL App (4th) 200666

Decision Under Review: Appeal from the Circuit Court of McLean County, No. 00-CF-
1349; the Hon. Scott D. Drazewski, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, and Salome Kiwara-Wilson,
for of State Appellate Defender’s Office, of Springfield, for appellant.
Appellant:

Attorneys Don Knapp, State’s Attorney, of Bloomington (Patrick Delfino,
for David J. Robinson, and Timothy J. Londrigan, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

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