People v. Merriweather

2022 IL App (4th) 210498 FILED
October 4, 2022
NO. 4-21-0498 Carla Bender
4th District Appellate
Court, IL
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
BYRON JOSHA MERRIWEATHER, ) No. 04CF840
Defendant-Appellant. )
) Honorable
) John C. Costigan,
) Judge Presiding.

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

OPINION

¶1 On remand from this court, the McLean County circuit court held a new sentencing

hearing for defendant, Byron Josha Merriweather, a juvenile offender, and sentenced him to 35

years’ imprisonment. Defendant filed a motion to reconsider his sentence, which the court denied.

Defendant appeals, asserting (1) the court improperly applied the mitigating sentencing factors for

juvenile offenders contained in section 5-4.5-105(a) of the Unified Code of Corrections (Unified

Code) (730 ILCS 5/5-4.5-105(a) (West 2018)) and (2) he did not receive effective assistance of

counsel. We affirm.

¶2 I. BACKGROUND

¶3 In September 2004, a grand jury indicted defendant on the offense of first degree

murder (720 ILCS 5/9-1(a)(1) (West 2002)) in connection with the shooting death of Steven
McDade in June 2003. Defendant was born in June 1985. At the time of the shooting, he was 10

days short of his eighteenth birthday and a member of the Vice Lords gang. The shooting took

place on Father’s Day in a crowded Miller Park in Bloomington, Illinois. The evidence indicated

a brawl broke out between the Vice Lords and Gangster Disciples, which ended in the shooting of

McDade. After the incident, defendant told Rhonda Williams, a police informant, he had shot

McDade. Williams wore a wire and taped some of defendant’s statements about the McDade

shooting. A lengthy summary of the evidence presented at defendant’s trial is set forth in our initial

order in this case. People v. Merriweather, 378 Ill. App. 3d 1139, 955 N.E.2d 192 (2008) (table)

(unpublished order under Illinois Supreme Court Rule 23). In February 2006, a jury found

defendant guilty. In May 2006, the trial court sentenced him to 70 years in prison, which included

a 45-year term, plus a mandatory 25-year firearm enhancement.

¶4 Defendant appealed and argued the following: (1) the evidence was insufficient to

convict him because the witnesses against him were not credible, (2) the trial court erred in

allowing the jury to hear about his juvenile record, (3) the court denied his right to a fair trial when

the State presented a large amount of evidence alleging he committed other uncharged and gang

related acts, and (4) he received ineffective assistance of counsel. In March 2008, this court

affirmed defendant’s conviction and sentence. Merriweather, 378 Ill. App. 3d 1139.

¶5 In December 2008, defendant filed a pro se petition for postconviction relief under

the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)), asserting ineffective

assistance of counsel based on, inter alia, counsel’s failure to present evidence of another suspect.

Defendant attached to his petition his November 2008 affidavit, in which he denied he committed

the murder at Miller Park. The trial court dismissed defendant’s postconviction petition at the first

stage of the proceedings. Defendant appealed, and this court affirmed the dismissal. People v.

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Merriweather, 403 Ill. App. 3d 1116, 993 N.E.2d 154 (2010) (table) (unpublished order under

Illinois Supreme Court Rule 23).

¶6 In February 2013, defendant filed a pro se motion for leave to file a successive

postconviction petition, stating a claim of actual innocence based on newly discovered evidence.

The trial court denied the motion for leave to file a successive postconviction petition, and

defendant appealed. On appeal, defendant argued (1) this court should vacate his de facto life

sentence and remand for resentencing and (2) the trial court erred in denying him leave to file a

successive postconviction petition. This court found defendant forfeited his de facto life sentence

argument because he raised it for the first time on appeal. People v. Merriweather, 2017 IL App

(4th) 150407, ¶ 14, 80 N.E.3d 127. However, we vacated the trial court’s denial of defendant’s

motion for leave to file a successive postconviction petition and remanded the cause with

directions for the trial court to rule on defendant’s motion to supplement the record and for any

further proceedings that were warranted. Merriweather, 2017 IL App (4th) 150407, ¶ 30.

¶7 While the appeal was pending on defendant’s first motion for leave to file a

successive postconviction petition, he filed a second motion for leave to file a successive

postconviction petition in August 2016. In his second motion, defendant argued his 70-year

sentence violated the eighth amendment to the United States Constitution (U.S. Const., amend.

VIII) because it was a de facto life sentence and the sentencing court failed to take into account

the considerations required by Miller v. Alabama, 567 U.S. 460, 483 (2012). The trial court denied

defendant’s second motion for leave to file a successive postconviction petition, finding defendant

failed to establish prejudice because Miller applied to mandatory life sentences, not discretionary

ones. Defendant appealed the denial of his second motion for leave to file a successive

postconviction petition, and this court vacated defendant’s 70-year sentence and remanded the

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cause for a new sentencing hearing consistent with section 5-4.5-105 of the Unified Code (730

ILCS 5/5-4.5-105 (West 2018)). People v. Merriweather, No. 4-17-0312 (2019) (unpublished

summary order under Illinois Supreme Court Rule 23(c))

¶8 On remand, the trial court ordered a new presentence report and approved funds for

defense counsel to retain a mitigation expert. At the resentencing hearing, the State asked the trial

court to take judicial notice of the prior proceedings and presented the original victim impact

statement by McDade’s family and defendant’s November 2008 affidavit. Defendant testified on

his own behalf and presented testimony from the following: (1) Mary Duran, a former McLean

County jail correctional officer; (2) Deborah Merriweather, defendant’s mother; (3) Ronald

Freman, defendant’s father; (4) Nikkita Merriweather, defendant’s sister; (5) Savion Smith,

defendant’s brother; and (6) Bertram Givan, defendant’s long-time friend. In addition to the

testimony, defendant presented (1) reference letters, (2) an August 2020 forensic psychiatric

evaluation by Terry Killian, (3) a brochure for the nonprofit organization defendant wanted to start,

(4) defendant’s October 2020 certificate of completion for a peer mentoring skills training

correspondence course, (5) defendant’s Lake Land Community College report card, and

(6) defendant’s August 2011 request for protective custody.

¶9 Duran testified she worked at the McLean County jail from May 2019 to December

2020. She observed defendant was always respectful and cooperative with jail staff. She also noted

defendant had a good attitude towards work and was disappointed when he was switched out of

the job to allow others to have the position. Duran further testified younger inmates seemed to look

up to defendant and he appeared to keep the peace among inmates. On one occasion, she had to

give defendant a verbal warning for talking through the glass in the recreation yard, and he did not

do it again after that.

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¶ 10 Deborah testified defendant had matured in prison and was a totally different

person. Defendant expressed remorse for what he had done and noted he had learned his lesson.

Defendant told Deborah he wanted to help others to not make the mistake he made. Deborah

believed defendant did not pose a danger to the public because he had matured and learned a lot

in prison. Defendant could live with her in Belleville, Illinois, upon his release from prison.

¶ 11 Freman testified he had not been a part of defendant’s life until four to six months

before the resentencing hearing. He talked on the telephone with defendant two to three times a

week, and defendant was very respectful and wanted to do better. Freman was a St. Louis police

officer and would be willing to work with defendant and keep him on the right track.

¶ 12 Nikkita testified she had spoken with defendant every day on the telephone for the

last six or seven years. Defendant had expressed remorse to her. Defendant had discussed future

goals with her and noted he would like to open a center for troubled teens and adults to help them

get on a different path in life. Nikkita believed defendant was not a danger or a threat to the public

because he did not speak of harming anyone or even speak negatively about anyone. Nikkita

viewed defendant as a father figure and wanted him home to help her out.

¶ 13 Smith testified it was rough not having defendant around in person when he was

growing up but defendant was still there for him no matter what the situation. Smith explained

defendant would always call him and encourage him to be the best person he could be. With

defendant’s advice, Smith was in a good crowd and finished high school. Smith described

defendant as a good mentor and said he owed defendant a debt of gratitude for all his guidance

over the years.

¶ 14 Givan testified he had been defendant’s good friend for around 25 years and was

friends with him at the time of the murder. They had been in the same gang. Defendant was “just

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a soldier” in the gang. Givan eventually left the gang and was working at Youth Build McLean

County, a vocational program and alternative school for youth. Givan talked to defendant on the

telephone at least weekly and more since defendant had been in the county jail. According to

Givan, defendant had changed in prison. Defendant denounced the gang and changed his outlook

and attitude. Defendant had expressed remorse for his criminal act. Defendant had told Givan he

would like the same occupation as Givan, who was a case manager at Youth Build McLean

County. Givan believed defendant would be a good counselor to young people. Givan also felt

defendant deserved a second chance.

¶ 15 Defendant testified he was now 35 years old. He stopped attending school in the

seventh grade. When he was growing up, defendant did not have a father figure and looked up to

his older brother, Valentino. Defendant joined the same gang as Valentino at the age of 12 or 13.

As a gang member, defendant sold drugs, stole cars, broke into houses, and got into fights. On the

day of McDade’s murder, defendant was hanging out at various parks. He started drinking hard

liquor around noon and smoked marijuana. While defendant was at Miller Park, another gang

approached defendant and the other gang members with whom he was hanging out. Defendant

noted the gang members he was hanging out with were mostly in their twenties. Defendant and his

group left the park to avoid a confrontation. After discussing the situation and continuing to drink,

the group decided to return to Miller Park. On the way to the park, another gang member handed

defendant a gun. Defendant believed the gun was for protection, and he had no plans to shoot

anyone.

¶ 16 At Miller Park, defendant’s group just hung out and talked. After five minutes, a

crowd of people came towards defendant. The crowd made disrespectful comments and threw

bottles at defendant’s group. A fight broke out with “[a] lot of people fighting.” A couple of

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defendant’s friends were getting beat up, and defendant kept hearing somebody say “shoot.” He

heard the word four or five times. Defendant then pulled out the gun and shot it around four times.

Defendant believed McDade was a Gangster Disciple.

¶ 17 After the shooting, defendant was in denial about his actions. However, he now

takes full responsibility for his actions and would like to apologize to McDade’s family. He is very

remorseful for what he has done. Defendant would like to redeem himself by starting a nonprofit

organization to help teens avoid the mistakes he made. Defendant was transferred out of Menard

Correctional Center due to good behavior, and he was able to take college courses at his new

correctional center. He would like to complete his associates degree. While in prison, defendant

gave his life to God and is now Muslim.

¶ 18 During closing arguments, the State asked the court to reimpose the 70-year

sentence. Defense counsel asserted defendant was rehabilitated and a 20-year sentence was

appropriate. Defendant made a statement in allocution. He again apologized to McDade’s family

and took responsibility for his actions. Defendant explained how he was a changed person.

¶ 19 The trial court began its sentencing pronouncement by stating the evidence,

arguments, statutory provisions, and case law it considered in determining defendant’s sentence.

It then stated the following:

“The Court has had a lot of time to think about this sentencing, [defendant],

over the last 17 days since our initial hearing, as well as before that point in time.

This case presents numerous interesting issues in terms of from [sic] a legal

standpoint, how to apply the firearm enhancement, but not make certain findings

with regard to the Buffer case. The minimum sentence was actually five years more

than the maximum sentence in the case because the minimum sentence 20 for

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murder, the firearm enhancement would equal 45. Buffer says unless they make

certain findings, the maximum sentence is 40, but I understand Buffer also goes on

to say the firearm enhancement under this particular situation is discretionary for

the Court as well, and I understand that. It’s just an interesting legal issue.

The legislature has told me to consider certain factors when issuing a

sentence, and I have two overriding considerations. One is to issue the appropriate

sentence for the offense that’s been committed. That’s what society demands, that’s

what people say is part of my job to issue the appropriate sentence for the crime

that’s before me. That’s one factor I’m considering. The second is to look at

rehabilitation and where’s rehabilitation fall on things from your standpoint. I’m

looking at that as well. So I’m considering all of those factors, and that’s where all

the testimony has played into everything, from the State, from Mr. Zalcman

[(defense counsel)], everything that’s been presented. The one thing that I did not

read, and purposely did not read, is the sentencing hearing, the transcript from the

sentencing hearing from the first sentencing because the Appellate Court told me

to re-sentence you, and what Judge Dozier found at that sentencing hearing is what

Judge Dozier’s findings were, not what my findings were. I have an opportunity, a

somewhat unique opportunity as it’s been mentioned to now look at things 15 years

down the road, 16 years down the road, and see where things are at, something he

did not have the opportunity to look at when he was considering things.

Do I see you as a different individual at this point in time than what was

before Judge Dozier? I believe so. I see things that probably were not present 18

years ago, a degree of maturity that was not there, and I’m taking that into

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consideration when I’m looking at things. I have no doubt that you are a different

person than when you were before Judge Dozier and he initiated that initial

sentence. I’m encouraged to see the changes that have been made up until this point,

and I’m considering certain factors.

So I’m looking at the statutory factors, the legislature, person’s age, level

of maturity at the time of the offense, including the ability to consider risks and

consequences behavior, and the presence of cognitive or developmental disability,

or both, if any. I’ve read Dr. Killion’s report. I’m looking at things, you were a

minor at the time this happened, you were under 18 years of age, and that’s

something that I am to consider. You were also ten days prior to your 18th birthday.

It wasn’t a situation to where you were 15 or 16 years old, which unfortunately we

do see folks that age here. You had a few more years under your belt, and quite

frankly, where the cases stand, 10 days later, if this would have happened 10 days

later after your 18th birthday, there’s probably a high degree of chance that sentence

from Judge Dozier would have stood because you were over 18. But you were under

18 at the time and that gives me an opportunity to look at things again, and that’s

what I’m doing.

Whether the person was subject to outside pressure, including peer pressure

or negative influences. I’ve had the opportunity to hear a number of gang cases here

in this courtroom. It’s something that I deal with on a fairly regular basis. I know

that there is certain pressures regarding a gang, being involved in a gang, certain

things that people do as being a part of the gang. I understand in this particular

situation there was drinking, drugs involved in this situation as well. That’s a factor

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I am considering. Whether you are a member of the gang or not, still a member of

the gang, it’s a situation to where I look at it, and from the testimony I hear there

are gang members who don’t say certain things in this courtroom. They will not say

certain things, and you did say them here during the course of the hearing. You let

out certain things which does make me believe that probably there is that distancing

from the gang that you were involved in at the time. So I do believe there’s some

distancing there as to the gang issue, but I understand the gang issue is a factor here.

A person’s family, home environment, education, social background,

including the history of parental neglect, physical abuse, and other childhood

trauma. Again, that goes to Dr. Killion’s report which I’ve reviewed, but the Court

doesn’t see that as being as significant as I do in some cases here. You have people

who are involved in your life, opportunities to get on the straight and narrow prior

to any of this happening, and a lot of people who had your back at the time, and

continue to have your back. It’s unfortunate you didn’t take advantage of that at the

time.

The person’s potential for rehabilitation, or evidence of rehabilitation, or

both. Again, this goes to the fact that we’re down the line a bit in terms of looking

at things that I can see some of the rehabilitation that has taken place given the facts

of this case, and we’re back here on a re-sentencing. The college courses, an A and

a B in some tough courses tells me that you had the opportunity and the smarts to

get the job done. There’s no doubt about that. The certificate of completion that you

have, that I’m seeing. The program that you’ve set up here to go ahead and mentor

youths, those are all things here that the Court considers in terms of rehabilitation,

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and the evidence of rehabilitation. So I am considering that.

The circumstances of the offense. That is something that is aggravating to

the Court. It’s aggravating because you left because they took your spot at Miller

Park, and rather than just letting it be, you came back, and you came back with a

gun to basically re-claim your spot, and that’s aggravating to the Court. I understand

that somebody gave you the gun on the way back, but it was a situation to where it

should have been left, and there was, as Mr. Rigdon [(prosecutor)] indicated, four

shots here. The overhear with the statement that was made, I’d do it again, that’s

concerning to the Court, but again, I understand that was some time ago. I

understand there’s a lot of water under the bridge since that point in time.

The degree of participation, again, it is—that’s aggravating to where the

Court sees a degree of participation. There’s an acknowledgment that you were the

shooter, and it took us a while to get there, but that is acknowledgement.

Whether the person was able to meaningfully participate in your defense, I

believe that you were able to meaningfully participate in your defensive. I’ve seen

in some of the post-trial motions there were some claims of ineffective assistance

of counsel, but I believe you were able to meaningfully participate in the defense.

The person’s prior juvenile criminal history. We have a theft and a burglary,

we have a lack of compliance with the probationary terms. You were on juvenile

parole at the time this took place for the other juvenile offense. That’s aggravating

to the Court here when I’ve look [sic] at the situation.

Any other information the Court finds relevant and reliable, including the

expression of remorse. I believe your remorse is genuine. I do. It took us a while to

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get there as I’ve mentioned earlier, but when you say you’re sorry, when you

acknowledge things, I believe you. I believe if it was a situation to where you could

take it back, you would. Not only for your standpoint, but I do believe you are

thinking of Mr. McDade in terms of what the consequences were to him as a result

of this action, and so I believe that as well. So I’m considering that.

When I have looked at the totality of the circumstances, was there

immaturity here that played into this offense? I think absolutely there was. I think

absolutely. I think when I’ve looked at the totality of the circumstances here, the

Buffer case, when I’m looking for things, it says basically 40 is de facto life

sentence, and I think that Buffer gives me guidance here in terms of where I should

be looking.

In terms of I don’t see somebody who shows irreparable corruption. I don’t

see that based on the evidence that I have before me. But I also don’t see a minimum

sentence being appropriate as well. We are here on a third felony. We are here on

somebody who’s had the opportunity, they were on parole at the time. We have

somebody who had the opportunity to walk away from the situation. When you left

the park in the first place and you came back, that’s aggravating to the Court. We

have a situation to where, while I’m not punishing you at all for having a trial, you

are perfectly entitled to a trial and to assert your innocence in the case, but we have

denial after denial until more recently here to where we have someone finally

acknowledging as to what actually happened in the situation. So when I’ve

considered the totality of the circumstances I don’t think a minimum sentence is

appropriate as well.

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 When I’ve looked at the totality of the circumstances and where things are

at, the Court considers the sentence of court costs and 35 years in the IDOC as the

appropriate sentence.”

On March 29, 2021, the trial court entered its written sentencing judgment consistent with the

above oral pronouncement.

¶ 20 On April 22, 2021, defendant filed a timely motion to reconsider his sentence,

arguing he should be resentenced to 25 years’ imprisonment based on the circumstances of his

case and his behavior after his original sentence. At an August 10, 2021, hearing, the court denied

defendant’s motion to reconsider his sentence. The court noted it considered the factors codified

in section 5-4.5-105(a) and “indicated what [it] saw was positive and what [it] saw negative in

terms of what [it] considered in terms of the sentence that was issued.” The court emphasized it

looked at the totality of the circumstances.

¶ 21 On September 1, 2021, defendant filed a timely notice of appeal, but it did not

accurately describe the appealed judgment. On September 9, 2021, defendant filed a timely

amended notice of appeal in sufficient compliance with Illinois Supreme Court Rule 606 (eff. Mar.

12, 2021), which listed defendant’s resentence and denial of his motion to reconsider. See Ill. S.

Ct. R. 303(b)(5) (eff. July 1, 2017); R. 606(d) (eff. Mar. 21, 2021). Accordingly, this court has

jurisdiction of defendant’s appeal under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013).

¶ 22 II. ANALYSIS

¶ 23 A. Juvenile Sentencing Factors

¶ 24 Defendant first contends the trial court improperly applied six of the mandatory

sentencing factors set forth in section 5-4.5-105(a) of the Unified Code (730 ILCS 5/5-4.5-105(a)

(West 2018)). He recognizes the issue was not properly preserved for appeal and asks us to

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consider it under the plain-error doctrine (Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967)) or as a claim of

ineffective assistance of counsel. The State contends no error occurred.

¶ 25 The plain-error doctrine permits a reviewing court to consider unpreserved error

under the following two scenarios:

“(1) a clear or obvious error occurred and the evidence is so closely balanced that

the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error, or (2) a clear or obvious error occurred

and that error is so serious that it affected the fairness of the defendant’s trial and

challenged the integrity of the judicial process, regardless of the closeness of the

evidence.” People v. Sargent, 239 Ill. 2d 166, 189, 940 N.E.2d 1045, 1058 (2010).

We begin a plain-error analysis by first determining whether any error occurred at all. Sargent,

239 Ill. 2d at 189. If error did occur, this court then considers whether either of the two prongs of

the plain-error doctrine has been satisfied. Sargent, 239 Ill. 2d at 189-90. “Under both prongs of

the plain-error doctrine, the defendant has the burden of persuasion.” People v. Hillier, 237 Ill. 2d

539, 545, 931 N.E.2d 1184, 1187 (2010). If the defendant fails to meet his or her burden of

persuasion, the reviewing court applies the procedural default. Hillier, 237 Ill. 2d at 545.

¶ 26 The parties both contend our standard of review for whether the trial court properly

applied the section 5-4.5-105(a) factors is de novo. See People v. Hibbler, 2019 IL App (4th)

160897, ¶ 65, 129 N.E.3d 755 (noting whether the trial court relied upon an improper factor at

sentencing presents a question of law, which this court reviews de novo). To the extent defendant

is raising statutory construction contentions in making his argument, that standard of review is

correct as to those contentions. See People v. Smith, 2014 IL 115946, ¶ 21, 21 N.E.3d 1172.

However, defendant essentially argues the circuit court imposed an excessive sentence. See People

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v. Johnson, 2019 IL 122956, ¶ 39, 129 N.E.3d 1239 (noting the defendant raised an excessive

sentencing argument when the defendant argued he would have received a lower sentence if the

court had not erred in its application of the statute and, thus, erroneously considered statutory

factors). A reviewing court will not disturb a defendant’s sentence absent an abuse of discretion

by the trial court. People v. Alexander, 239 Ill. 2d 205, 212, 940 N.E.2d 1062, 1066 (2010). “A

sentence will be deemed an abuse of discretion where the sentence is ‘greatly at variance with the

spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.’ ”

Alexander, 239 Ill. 2d at 212 (quoting People v. Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d 626, 629

(2000)).

¶ 27 1. Juvenile Sentencing

¶ 28 In Miller, 567 U.S. at 489, the United States Supreme Court found unconstitutional

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

offenders (those under the age of 18), including those convicted of homicide. The Miller 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 before imposing the harshest

possible penalty on a juvenile. Miller, 567 U.S. at 489. In reaching its holding, the Miller Court

emphasized the juvenile offender’s youth and attendant characteristics must be considered. Miller,

567 U.S. at 483. Thereafter, in Montgomery v. Louisiana, 577 U.S. 190, 212 (2016), the Supreme

Court found the Miller decision announced a new substantive rule of constitutional law that was

retroactive on state collateral review. It also reiterated the Miller Court required the sentencing

court to consider a juvenile offender’s youth and attendant characteristics before determining life

without parole was an appropriate sentence. Montgomery, 577 U.S. at 209-10. The Montgomery

Court further explained Miller barred life without parole “for all but the rarest of juvenile

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offenders, those whose crimes reflect permanent incorrigibility.” Montgomery, 577 U.S. at 209.

Recently, in Jones v. Mississippi, 593 U.S. ___, ___, 141 S. Ct. 1307, 1318 (2021), the Supreme

Court explained the Montgomery decision did not require the sentencing court to make a separate

factual finding of permanent incorrigibility to impose a discretionary life sentence.

¶ 29 After the Miller decision, the Illinois legislature enacted section 5-4.5-105 of the

Unified Code (730 ILCS 5/5-4.5-105 (West 2016)), which contains a list of mitigating factors

“taken from and *** consistent with Miller’s discussion of a juvenile defendant’s youth and its

attendant characteristics.” People v. Buffer, 2019 IL 122327, ¶ 36, 137 N.E.3d 763. Section 5-4.5-

105(a) states as follows:

“[T]he court, at the sentencing hearing conducted under Section 5-4-1, shall

consider the following additional factors in mitigation in determining the

appropriate sentence:

(1) the person’s age, impetuosity, and level of maturity at the time of the

offense, including the ability to consider risks and consequences of behavior,

and the presence of cognitive or developmental disability, or both, if any;

(2) whether the person was subjected to outside pressure, including peer

pressure, familial pressure, or negative influences;

(3) the person’s family, home environment, educational and social

background, including any history of parental neglect, physical abuse, or other

childhood trauma;

(4) the person’s potential for rehabilitation or evidence of rehabilitation, or

both;

(5) the circumstances of the offense;

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 (6) the person’s degree of participation and specific role in the offense,

including the level of planning by the defendant before the offense;

(7) whether the person was able to meaningfully participate in his or her

defense;

(8) the person’s prior juvenile or criminal history; and

(9) any other information the court finds relevant and reliable, including an

expression of remorse, if appropriate. However, if the person, on advice of

counsel chooses not to make a statement, the court shall not consider a lack of

an expression of remorse as an aggravating factor.” 730 ILCS 5/5-4.5-105(a)

(West 2018).

¶ 30 2. Sentencing in General

¶ 31 The Illinois Constitution mandates “[a]ll 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. In sentencing a defendant, the circuit court must consider

a number of statutory mitigating and aggravating factors. See 730 ILCS 5/5-5-3.1, 5-5-3.2 (West

2018). Section 5-4.5-105(a) contains “additional factors in mitigation in determining the

appropriate sentence” for juvenile offenders. (Emphasis added.) 730 ILCS 5/5-4.5-105(a) (West

2018). Accordingly, section 5-4.5-105(a) does not replace the normal sentencing provisions but

supplements them. As with the statutory mitigating factors listed in section 5-5-3.1, not all the

mitigating factors may apply in every case. See People v. Lefler, 2016 IL App (3d) 140293, ¶ 3,

48 N.E.3d 257 (noting the trial court did not err in finding no statutory mitigating factors applicable

to the defendant). Moreover, the trial court need not articulate each factor it considers in rendering

the sentence for a juvenile offender, and that omission does not mean the trial court did not consider

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all relevant factors. People v. Villalobos, 2020 IL App (1st) 171512, ¶ 74, 161 N.E.3d 953. “In

determining whether the trial court based the sentence on proper aggravating and mitigating

factors, a court of review should consider the record as a whole, rather than focusing on a few

words or statements by the trial court.” People v. Dowding, 388 Ill. App. 3d 936, 943, 904 N.E.2d

1022, 1028 (2009).

¶ 32 Additionally, in reviewing a defendant’s sentence, we note the following:

“A trial court’s sentencing determination must be based on the particular

circumstances of each case, including factors such as the defendant’s credibility,

demeanor, general moral character, mentality, social environment, habits, and age.

[Citations.] Generally, the trial court is in a better position than a court of review to

determine an appropriate sentence based upon the particular facts and

circumstances of each individual case. [Citation.] Thus, the trial court is the proper

forum for the determination of a defendant’s sentence, and the trial court’s

decisions in regard to sentencing are entitled to great deference and weight.

[Citation.] *** If the sentence imposed is within the statutory range, it will not be

deemed excessive unless it is greatly at variance with the spirit and purpose of the

law or is manifestly disproportionate to the nature of the offense.” (Internal

quotation marks omitted.) People v. Price, 2011 IL App (4th) 100311, ¶ 36, 958

N.E.2d 341; see also Alexander, 239 Ill. 2d at 212.

The sentencing range for first degree murder is 20 to 60 years’ imprisonment (730 ILCS 5/5-4.5-

20(a) (West 2018)). Moreover, “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.” 730 ILCS 5/5-8-

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1(a)(1)(d)(iii) (West 2018). Under section 5-4.5-105(c) of the Unified Code (730 ILCS 5/5-4.5-

105(c) (West 2018)), the court has the discretion to impose the aforementioned sentencing

enhancement. In his brief, defendant incorrectly argued defendant’s sentencing range was 20 to 40

years in prison, citing People v. Holman, 2017 IL 120655, ¶ 40, 91 N.E.3d 849, which found Miller

applied to discretionary sentences, and Buffer, 2019 IL 122327, ¶ 40, which held a 40-year

sentence was a de facto life sentence. However, following Holman, the United States Supreme

Court rendered the Jones decision. As our supreme court has explained, the Jones Court found

“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 but that no factfinding by the sentencer is required.” People v. Dorsey,

2021 IL 123010, ¶ 40, 183 N.E.3d 715 (citing Jones, 593 U.S. at ___, 141 S. Ct. at 1314-15). Our

supreme court further noted Holman’s holding that Miller applied to discretionary sentences was

questionable in light of Jones. Dorsey, 2021 IL 123010, ¶ 41. Under Jones and Illinois law, as long

as the trial court considers the factors set forth in section 5-4.5-105(a) in exercising its discretion,

it may sentence a juvenile offender to a prison term greater than 40 years and not violate the eighth

amendment. See Jones, 593 U.S. at ___, 141 S. Ct. at 1314-15.

¶ 33 3. This Case

¶ 34 At the resentencing hearing, the trial court sentenced defendant to 35 years in prison

and declined to impose the firearm enhancement. In making that determination, the court addressed

all nine factors set forth in section 5-4.5-105(a). In its findings, the court used the term

“aggravating” in discussing the following three factors: the circumstances of the offense (730 ILCS

5/5-4.5-105(a)(5) (West 2018)), defendant’s degree of participation in the offense (730 ILCS 5/5-

4.5-105(a)(6) (West 2018)), and defendant’s prior juvenile history (730 ILCS 5/5-4.5-105(a)(8)

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(West 2018)). Defendant challenges the trial court’s findings those three factors were not

mitigating. He also argues the trial court erred in making its findings on the first three section 5-

4.5-105(a) factors, which are defendant’s age, impetuosity, and maturity at the time of the offense

(730 ILCS 5/5-4.5-105(a)(1) (West 2018)); whether defendant was subject to outside pressure (730

ILCS 5/5-4.5-105(a)(2) (West 2018)); and defendant’s family, home environment, and educational

and social background (730 ILCS 5/5-4.5-105(a)(3) (West 2018)). Defendant acknowledges the

trial court properly considered his rehabilitation (730 ILCS 5/5-4.5-105(a)(4) (West 2018)); his

meaningful participation in his defense (730 ILCS 5/5-4.5-105(a)(7) (West 2018)); and his remorse

(730 ILCS 5/5-4.5-105(a)(9) (West 2018)).

¶ 35 As to the three factors the trial court found were not mitigating, the fact the trial

court used the term “aggravating” in making that finding was not improper. The evidence

supported a finding those factors were not mitigating in this case, and we find nothing wrong with

the trial court’s use of the term “aggravating” in expressing that finding. A prior history of

delinquency is a statutory aggravating factor (730 ILCS 5/5-5-3.2(a)(3) (West 2018)), and the

circumstances of the offense along with defendant’s role must be considered under the Illinois

Constitution in formulating a sentence (Ill. Const. 1970, art. I, § 11). Thus, unlike in People v.

Royer, 2020 IL App (3d) 170794, ¶ 29, 190 N.E.3d 817, cited by defendant, the three factors for

which the trial court used the term “aggravating” are not solely Miller factors. Additionally, section

5-4.5-105(a)(9) of the Unified Code (730 ILCS 5/5-4.5-105(a)(9) (West 2018)) expressly prohibits

the trial court from considering as aggravating a defendant’s choice, on the advice of counsel, to

not express remorse. Unlike section 5-4.5-105(a)(9), the three sections noted above do not contain

any language prohibiting the consideration of the factor in those sections as aggravating.

¶ 36 Regarding the first three section 5-4.5-105(a) factors, defendant essentially asserts

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the trial court should have given more weight to each factor. However, the court explained why

defendant’s situation was not as mitigating as those of other juveniles. Moreover, as previously

noted, the fact the court did not specifically address every word in a factor does not mean the court

failed to consider it. Defendant’s argument as to the first three section 5-4.5-105(a) factors amounts

to a request for this court to reweigh the evidence and substitute our judgment for that of the trial

court.

¶ 37 Here, the trial court considered defendant’s youth at the time of the offense and the

characteristics of youth, as well as defendant’s rehabilitation at the time of the sentencing hearing,

and imposed a discretionary sentence half as long as his prior sentence and well below the

maximum the trial court could have imposed with a firearm enhancement. Defendant committed

a very serious crime. He killed a man he did not know by firing a gun four times at him while the

man was part of a brawling mob. The brawling mob was instigated when defendant and his fellow

gang members returned to the public park, seeking a confrontation with the other gang.

Accordingly, we find defendant’s sentence is not excessive, and the court did not abuse its

discretion in sentencing defendant to 35 years’ imprisonment. Since we have found no error, we

need not address plain error.

¶ 38 B. Ineffective Assistance of Counsel

¶ 39 Defendant also asserts he was denied effective assistance of counsel because

defense counsel focused on defendant’s rehabilitation while in prison and not on his circumstances

at the time of the offense. He also contends defense counsel was ineffective for not objecting to

the court’s sentencing errors. The State contends defendant did not overcome the presumption of

trial strategy, especially given the limitations of the appellate record.

¶ 40 The sixth amendment (U.S. Const., amend. VI) guarantees a defendant the right to

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effective assistance of counsel at all critical stages of a criminal proceeding. People v. Beasley,

2017 IL App (4th) 150291, ¶ 26, 85 N.E.3d 568. This court analyzes claims of ineffective

assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). To establish ineffective

assistance of counsel during sentencing, a defendant must show (1) counsel’s performance fell

below minimal professional standards and (2) a reasonable probability exists the defendant’s

sentence was affected. Hibbler, 2019 IL App (4th) 160897, ¶ 88. To satisfy the deficiency prong

of Strickland, the defendant must demonstrate counsel made errors so serious and counsel’s

performance was so deficient that counsel was not functioning as “counsel” guaranteed by the

sixth amendment. Evans, 186 Ill. 2d at 93. Further, the defendant must overcome the strong

presumption the challenged action or inaction could have been the product of sound trial strategy.

Evans, 186 Ill. 2d at 93. To satisfy the prejudice prong, the defendant must prove a reasonable

probability exists that, but for counsel’s unprofessional errors, the proceeding’s result would have

been different. Evans, 186 Ill. 2d at 93. “Failure to satisfy either prong negates a claim of

ineffective assistance of counsel.” Hibbler, 2019 IL App (4th) 160897, ¶ 88. When defendant

raises a claim of ineffective assistance of counsel for the first time on appeal, our review is de novo.

Hibbler, 2019 IL App (4th) 160897, ¶ 88.

¶ 41 As to the prejudice prong, defendant argues the trial court would have imposed a

lesser sentence had defense counsel introduced evidence at the resentencing hearing consistent

with Miller and section 5-4.5-105(a) and objected when the trial court misapplied and downplayed

the mitigating factors set forth in section 5-4.5-105(a). In making this argument, he contends his

sentence was only five years below the maximum, which this court has already explained was

incorrect. Without any discretionary firearm enhancement, defendant’s sentence was 25 years

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under the maximum sentence. Moreover, this court has already found the trial court did not err in

considering and applying the section 5-4.5-105(a) factors. Further, defendant does not indicate

what the additional evidence defense counsel failed to present would have shown. Given the record

from the original proceedings in addition to the new testimony, we disagree with defendant that

defense counsel focused solely on rehabilitation. The evidence presented at defendant’s original

trial detailed how defendant was in a gang and how that gang played a role in defendant murdering

McDade. Defendant himself testified, and counsel presented the testimony of defendant’s mother,

father, sister, and brother. Defense counsel introduced evidence defendant’s father was not present

in his life until recently. Implicit in defendant’s mother’s testimony was defendant’s lack of

maturity at the time of the offense. Defendant’s sister testified about how defendant was a troubled

teen and did not have a lot of guidance. Given the nature of the offense and the existing evidence

regarding defendant at the time of the offense, we fail to see how additional evidence regarding

defendant’s characteristics at the time of the offense would probably result in a reduced sentence,

especially given defendant has failed to identify what the additional evidence would show about

defendant. Accordingly, we find defendant failed to establish ineffective assistance of counsel.

¶ 42 III. CONCLUSION

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

¶ 44 Affirmed.

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 People v. Merriweather, 2022 IL App (4th) 210498

Decision Under Review: Appeal from the Circuit Court of McLean County, No. 04-CF-840; the Hon.
John C. Costigan, Judge, presiding.

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

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

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