People v. Aguilar

2024 IL App (1st) 220470-U
No. 1-22-0470
Order filed March 15, 2024

Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
Plaintiff-Appellee, ) Circuit Court of Cook County.
)
v. ) No. 06 CR 12064
)
EFREN AGUILAR, ) Honorable Angela Munari Petrone,
) Judge, Presiding.
Defendant-Appellant. )

JUSTICE NAVARRO delivered the judgment of the court.
Justices Mikva and Lyle concurred in the judgment.

ORDER

¶1 Held: Defendant’s 50-year sentence imposed at the resentencing hearing
does not violate either the eighth amendment of the United States
Constitution or the proportionate penalties clause of the Illinois
Constitution. The sentencing court did not abuse its discretion
when it resentenced him to 50 years in prison; affirmed.

¶2 This appeal comes before this court following a resentencing hearing for defendant,

Efren Aguilar, who was 17 years old when he committed the offense of first degree murder (720

ILCS 5/9-1(a)(1) (West 2022)). In 2019, this court reversed the trial court’s dismissal of Aguilar’s

postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(a)(1)

(West 2018)), and remanded for resentencing because the trial court did not consider Aguilar’s
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youth and factors, as set forth in Miller v. Alabama, 567 U.S. 460 (2012), when it sentenced him

to 50 years in prison. People v. Aguilar, 2019 IL App (1st) 160224-U, ¶¶ 2, 28. On remand, the

sentencing court resentenced Aguilar to 50 years in prison, which included 25 years for first degree

murder (730 ILCS 5/5-4.5-20(a) (West 2022)) and 25 years for personally discharging the firearm

that caused the victim’s death (730 ILCS 5/5-8-1(d)(iii) (West 2022); (730 ILCS 5/5-4.5-105(b)

(West 2022)).

¶3 Aguilar contends on appeal that his 50-year sentence violates the eighth amendment to

the United States Constitution (U.S. Const., amends. VIII) and the proportionate penalties clause

of the Illinois Constitution (Ill. Const. 1970, art. 1, § 11). He argues that the sentencing court

imposed the sentence without making the finding that he was permanently incorrigible and after

finding that he was “not permanently incorrigible.” He asserts that Illinois’s strict parole

limitations for juvenile homicide offenders does not provide a meaningful opportunity for release,

and the sentencing court’s findings were incompatible with and contradicted Miller’s findings

regarding the characteristics of juvenile offenders. He also argues his sentence is excessive and the

court overlooked and misconstrued critical mitigation.

¶4 I. BACKGROUND

¶5 Following a 2007 jury trial, Aguilar was found guilty of first degree murder in the

shooting death of Brandon McClelland that occurred on May 29, 2004, when Aguilar was 17 years

old. The trial evidence is not at issue here, so we briefly summarize and repeat the trial evidence

that was set forth in this court’s prior orders. See People v. Aguilar, 396 Ill. App. 3d 43 (2009);

People v. Aguilar, 2012 IL App (1st) 110878-U; People v. Aguilar, 2019 IL App (1st) 160224-U.

¶6 On May 29, 2004, at about 10:30 p.m., Brandon McClelland, who was 18 years old,

was with his three friends at a park in Chicago. Aguilar rode up to them on a bike and asked them

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a question about what gang they were in and some of them responded that they were not in a gang.

Aguilar then pulled out a gun and started shooting. A bullet struck McClelland in his back, and he

later died in the hospital. Two of the victim’s friends who were in the park that night identified

Aguilar in a photo lineup as the shooter. The third friend also identified Aguilar in a photo lineup

as the shooter but stated he would need to see him in person to be sure. See Aguilar, 396 Ill. App.

3d at 44-45; Aguilar, 2012 IL App (1st) 110878-U, ¶ 3.

¶7 About two years later, Aguilar was arrested following a traffic stop. During the stop,

Aguilar did not give the police officers his correct name and one of the officers saw a gun on the

floor by the passenger’s side of his car. Aguilar drove away until his car ran into a railroad

embankment. Aguilar then ran into the railroad yard, and one of the officers testified that when

Aguilar was running, he turned around and pointed a gun at the officer, after which the officer

fired one shot in his direction. Aguilar continued to run, and at one point, the officer lost sight of

him. Later during the chase, the officer fired his gun a second time. Aguilar was eventually taken

into custody, and no handgun was found on him. See Aguilar, 396 Ill. App. 3d 43 at 45; Aguilar,

2012 IL App (1st) 110878-U, ¶ 3.

¶8 The jury found Aguilar guilty of first degree murder and the trial court subsequently

sentenced him to 25 years for first degree murder (720 ILCS 5/9-1(a)(1) (West 2006)) and 25 years

for using a firearm during the offense, for a total of 50 years in prison. On direct appeal, this court

affirmed the trial court’s judgment. Aguilar, 396 Ill. App. 3d at 44.

¶9 Post-Conviction Proceedings

¶ 10 In 2010, Aguilar filed a postconviction petition, in which he argued, among other

things, that his trial counsel was ineffective for failing to present alibi witnesses who would have

testified that he was not present in the park on the night of the incident. Aguilar attached affidavits

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to support his petition, including an affidavit from Priscila Pernillo, who was Aguilar’s girlfriend

at the time. She averred that on the night of the incident, she and Aguilar were together with their

friends in Sauk Village, Illinois, not in the park when the shooting occurred. The trial court

summarily dismissed Aguilar’s petition. On appeal, this court reversed the trial court’s dismissal

and remanded for further proceedings. Aguilar, 2012 IL App (1st) 110878-U.

¶ 11 On remand, Aguilar filed a supplemental postconviction petition, in which he argued

that his 50-year sentence for an offense he committed when he was 17 years old was an

unconstitutional de facto life sentence under Miller. He contended that his sentence violated the

eighth amendment to the United States Constitution and the proportionate penalties clause of the

Illinois Constitution. He also argued that trial counsel was ineffective for failing to argue at the

sentencing hearing that the court should consider Aguilar’s youth when it sentenced him, and that

appellate counsel was ineffective for failing to raise the issue on appeal. The State moved to

dismiss Aguilar’s postconviction petition, arguing, among other things, that his sentencing claim

was not affected by Miller, and that Pernillo stated in a videotaped statement that her affidavit was

false, and that Aguilar and his mother urged her to sign it.

¶ 12 At an evidentiary hearing on Aguilar’s initial and supplemental postconviction petition,

the court admitted into evidence Pernillo’s deposition, in which she recanted her alibi statement

contained in her affidavit. Aguilar’s postconviction counsel who prepared the initial petition

testified at the hearing that in October 2010, she met with Pernillo and Aguilar’s mother, at which

time Pernillo told her the information that she included in the affidavit. Pernillo never told counsel

the information was not true or that she had been coerced by anyone. Following the hearing, the

trial court granted the State’s motion to dismiss Aguilar’s postconviction petition.

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¶ 13 On appeal, this court reversed the trial court’s dismissal of Aguilar’s sentencing claim

and remanded for further proceedings, concluding that his 50-year sentence violated the eighth

amendment to the United States Constitution. Aguilar, 2019 IL App (1st) 160224-U, ¶ 28. In doing

so, this court stated that Aguilar received a de facto life sentence and that the record did not indicate

that the trial court considered his youth and attendant circumstances or that it discussed the factors

set forth under Miller when it sentenced him. Id. ¶ 27. This court vacated Aguilar’s sentence and

remanded for resentencing under section 5-4.5-105 of the Unified Code of Corrections (Code)

(730 ILCS 5/5-4.5-105) (West 2018)), which requires the trial court “to consider a number of

factors when imposing a sentence on an individual under the age of 18.” Id. ¶¶ 26-27. This court

affirmed the summary dismissal in all other respects. Id. ¶ 4.

¶ 14 Resentencing Hearing on Remand

¶ 15 Aggravation Evidence

¶ 16 At the resentencing hearing, the State requested the sentencing court take judicial notice

of the common law record, the transcripts from the trial and postconviction proceedings, the trial

exhibits, Pernillo’s evidence deposition entered into evidence at the postconviction hearing, and

the original presentence investigation report (PSI) from Aguilar’s sentencing hearing in 2007. The

PSI provided information on Aguilar’s social history, education, employment, health, alcohol and

drug use, community involvement, and economic status. The State also asked the court to admit

into evidence Aguilar’s records from the Illinois Department of Corrections (IDOC), which

included disciplinary and rehabilitation records, as well as his delinquency records from juvenile

court. The State requested the court consider five victim impact statements and then it presented

three witnesses, including the victim’s mother and two younger sisters, who each read their victim

impact statements.

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¶ 17 Mitigation Evidence

¶ 18 Defense counsel presented a defense mitigation report prepared by Helen Kim Skinner,

JD, MSW, a mitigation specialist. The report explained the history of abuse Aguilar experienced

from his father, and the “lack of action” from his mother. The report also explained Aguilar’s early

exposure to violence in his neighborhood and gangs and that he “was longing for a sense of

identity,” which he found when he was recruited by the Latin Kings gang.

¶ 19 The report also provided information on Aguilar’s aggravated criminal sexual assault

finding of delinquency that is listed in the PSI. The report further stated that Aguilar was

traumatized by his time in the Juvenile Temporary Detention Center and started to “turn to

individuals outside his family for the feelings of love and protection.” He started to skip school to

“escape humiliation,” was “harder, angrier, less emotional,” and started spending time with an

adult neighbor who taught him how to sell drugs. Members of the gang noticed that he could sell

“drugs quickly” and “promised him that he could make more money if he were to join their gang.”

Aguilar used his money from selling drugs to support his family. Aguilar “felt a constant tension

between knowing that what he was doing in a gang and selling drugs was wrong, yet he felt ‘so

heavily invested so there was no turning back.’ ”

¶ 20 The report also stated that Aguilar attempted “to get into programming” while in the

IDOC, but it was unavailable “to inmates without close release dates; those with the equivalent of

a life sentence will not receive ‘rehabilitation’ services.” The report concluded that when Aguilar

committed the offense, he was “in the height of taking risks as a normal part of adolescent

development” and he has “tremendous remorse and regret” about what he did.

¶ 21 Defense counsel presented letters in support for Aguilar from officers from the Cook

County Jail and the IDOC. Defense counsel also presented nine certificates from certain programs

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in which Augilar was involved while in custody as well as the 2022 PSI report, which contained

information on his social history, education and employment, family and social support, housing

and neighborhood history, peer associations, health, substance abuse, and attitudes and behavioral

patterns. Griselda Magallanes testified as a witness for Aguilar.

¶ 22 Arguments

¶ 23 In aggravation, the State summarized the facts of the offense and case, including that

two years after the shooting, he fled from the police during a traffic stop. The State directed the

court to Aguilar’s IDOC records which reflected that from 2008 to 2018, he had 17 major

discipline violations. The State summarized some of the violations, including one in 2017 where

guards fired two warnings shots to stop an altercation in which he was involved.

¶ 24 The State asserted that Aguilar had been involved with the Latin Kings gang since 2005

and that, although he had indicated in his original PSI that he no longer had an affiliation, the

IDOC records indicated that he continued an affiliation. The State argued that during

postconviction proceedings, Pernillo testified that Aguilar pressured her to sign the false affidavit

regarding the alibi. The State explained that the 25-year firearm enhancement was now

discretionary and not mandatory as it was at the original sentencing.

¶ 25 In mitigation, defense counsel directed the court to the defense mitigation packet and

argued that Aguilar had a “complex relationship” with his father, who was domineering, cold, and

abusive. Counsel stated that Aguilar’s mother was not able to protect him at that time and, as he

got older, Aguilar began to fight with his father in response to the abuse. Counsel explained that

Aguilar was initially driven to gang involvement due to the violence and lack of attentiveness from

his father and that he started selling drugs to support his family. Counsel explained that after

Aguilar was arrested, his daughter was born, who was a source of hope for him and leading to his

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rehabilitation. Counsel stated that Aguilar received certificates from various programs in the Cook

County jail, where he had been living since the case was remanded, which showed an increase in

his maturity. Following counsel’s argument, Aguilar addressed the court.

¶ 26 Sentencing Court’s Resentencing Order

¶ 27 On March 28, 2022, the sentencing court issued a written resentencing order, in which

it sentenced Aguilar to 25 years in prison for first degree murder, plus an additional 25 years for

the firearm enhancement, for a total of 50 years in prison. The court provided a summary of the

offense and proceedings in the case. It also stated it reviewed the common law record, the

transcripts from trial, prior filings, the appellate court decisions, Pernillo’s deposition, the records

from the IDOC and juvenile court, the PSI, the defense mitigation packet, Aguilar’s statement in

allocution, the victim impact statements, the testimony and arguments from the resentencing

hearing, and the law that applies to sentencing individuals who commit an offense when they are

under the age of 18.

¶ 28 The court then provided summaries of the PSI, the IDOC records, the defense

mitigation report, Aguilar’s statement in allocution, and the testimony at the resentencing hearing.

As for the IDOC records, the court stated that they showed that for the 12-year period when Aguilar

was in the IDOC, he attended one 6-week course for “Lifestyle Redirection” in April 2015, and he

was enrolled in class to get his GED. The court noted that the IDOC records also showed that

Aguilar was often kept in maximum security status and that he continued to participate in gang

activity, possessed unauthorized property, disobeyed direct orders, participated in beatings of other

inmates, and participated in a major altercation where warning shots were fired.

¶ 29 The court noted that the defense mitigation report stated that since Aguilar was

remanded to the Cook County jail, he earned certificates in a number of programs, including a

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course in men’s health, the Second Chance Program, Mindfulness for Beginners training, writing

workshops, and Introduction to Chicago History. The court explained that he passed the

constitutional exam, advanced in the PACE Institute, which was a prerequisite to a GED, and his

average grade with the Stratford Career Institute was 92%. The court noted that a letter from a

correctional officer from the Cook County jail stated that Aguilar never received a disciplinary

write-up upon his return to the jail and he helped “keep peace among other detainees” and a letter

from an IDOC officer that spoke positively of Aguilar’s time in the Menard Correctional Center.

The court noted that in Aguilar’s statement in allocution, he expressed remorse for his actions and

stated that he wanted to get his GED and to be a good father.

¶ 30 The court explained that the sentencing range for first degree murder was 20 and 60

years (730 ILCS 5/5-4.5-20(a) (West 2022)) and that the court had discretion to impose the firearm

enhancement (730 ILCS 5/5-4.5-105(b) (West 2022)). The court cited the factors under section 5-

4.5-105(a) of the Code (730 ILCS 5/5-4.5-105(a) (West 2022)) that it must consider when

sentencing an individual who commits an offense while under the age of 18. The court also cited

section 5-4.5-115(b) (730 ILCS 5/5-4.5-115(b) (West 2022)) of the Code, the statute governing

parole for individuals who commit an offense under the age of 21, and it provided a summary of

the evolving law on juvenile sentencing, including summaries of Miller, People v. Holman, 2017

IL 120655, People v. Buffer, 2019 IL 122327, People v. Dorsey, 2021 IL 123010, and Jones v.

Mississippi, 593 U.S.__, __, 141 S. Ct. 1307 (2021).

¶ 31 The court then concluded that Aguilar was 17 years old when he shot and killed the

victim and that it was “not an impetuous act.” It reasoned that Aguilar was “riding around a park

on a bike with a loaded gun,” he acted alone, he “boldly and purposefully approached” a group of

four young men and asked them about gang affiliation, and the four men did not provoke him. The

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court stated that there was “no outside pressure from anyone, no peer or family pressure, no egging

[Aguilar] on to fire his gun multiple times at people who were running away from him.” The court

stated that there was no evidence Aguilar had a cognitive or developmental disability when he

acted.

¶ 32 The court stated that Aguilar provided conflicting information about his family

relationships, gang involvement, rehabilitative potential, and his use of substances. As for his

family relationships, the court stated that, “[a]t one point, he did not feel loved, even by his mother”

and “[a]t another, he was ‘very satisfied’ with the ‘strong support’ he was getting from his family.”

The court further stated that at one point, Aguilar’s father physically abused him “so often that he

frequently ran away from home” and that, at another, his father also worked hard every day as a

laborer to support the family. The court noted that the Department of Children and Family Services

was never involved with his family and that, after his parents divorced, Aguilar claimed he gave

the money he earned selling drugs to his mother. The court stated that the IDOC records showed

that Aguilar’s family members frequently visited him.

¶ 33 As for the conflicting information about Aguilar’s gang involvement, the court stated

that, “[a]t one point, he joined the gang because it was like a family and gave him love and

protection he did not feel at home” and, at another time, “he was so adept at drug sales, which he

began of his own volition, that the gang took notice of him and recruited him to be a member.”

The court noted that while awaiting sentencing, Aguilar stated that he had realized “the gang was

just using him, and he was trying to avoid physical confrontations/fights” but the IDOC records

were “replete with [Aguilar’s] continued gang involvement, fighting and beating of other inmates,

while an adult, which this court considers aggravation.”

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¶ 34 With respect to the court’s finding that Aguilar demonstrated conflicting information

about his rehabilitative potential, the court explained that while awaiting sentencing, he expressed

remorse and that he wanted to obtain a GED, attend rehabilitative programs, and be a better father

to his daughter. The court stated that in the 12 years while in the IDOC, Aguilar did not obtain his

GED and he received only one certificate. The court stated that after this case was remanded for

resentencing, Aguilar earned several certificates and scored an average of 92% in high school

classes. The court noted that in the statement Aguilar read in court, he had the same goals in that

he wanted to get a GED, learn a trade, and be a better father. As for the court’s finding that Aguilar

provided conflicting information about his use of substances, the court noted that Aguilar stated

he “ ‘did not have any issues with alcohol or drugs’ ” and that, at another time, he admitted he had

a problem with alcohol.

¶ 35 The court also stated that it considered Aguilar’s attempt to get Pernillo, the mother of

his child, to lie for him in an affidavit during the postconviction proceedings as an aggravating

factor. The court explained that it found Aguilar’s action of fleeing from the police and pointing a

gun at the officer chasing him was also an aggravating factor.

¶ 36 The court found that Aguilar’s youthful age of 17 years old and attendant immaturity

was mitigating. It concluded that Aguilar has “potential for rehabilitation, as evidenced by

certificates he earned and grades he received in school since the new sentencing hearing was

ordered.” The court stated: “He was capable of helping keep peace in the jail upon his remand. He

attended church in prison. He does not show irreparable depravity or permanent incorrigibility.”

¶ 37 The court found that in determining whether Aguilar’s sentence of 50 years is

constitutional, the court may consider section 5-4.5-115(b) of the Code (730 ILCS 5/5-4.5-115(b)

(West 2022)), which permits the Prisoner Review Board (Board) to release a juvenile offender

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after 20 years, and when making that determination, the Board must “consider the diminished

culpability of youthful offenders, hallmark features of youth, and any subsequent growth and

maturity of a youthful offender during incarceration.” The court then concluded that the

requirements of Miller were satisfied, and that Aguilar was sentenced to a “discretionary de facto

life sentence and has the possibility of release after serving 20 years, upon the showing of his

growth and maturity during incarceration.” The court further concluded:

“Although [Aguilar] is not permanently incorrigible, this court finds that such showing

of growth and maturity during incarceration has not been made in this case so far, based

on all of the above. This court is not mandated to disregard the minimum sentencing

enhancement imposed, or to give [Aguilar’s] expression of remorse and some amount of

rehabilitative potential more weight than the seriousness of the offense and all the

aggravation noted above. [Aguilar] has a chance to prepare himself for the outside world.

He can learn a trade in prison, or get the GED he has said since 2007 that he wants to get,

and continue further schooling. He can stop his gang activities, violent behavior and

pummeling over inmates.”

¶ 38 Aguilar filed a motion to reconsider sentence, in which he argued, among other things,

that his sentence was excessive in light of the mitigation evidence presented, his sentence failed to

satisfy this court’s prior order mandating that he receive a sentence that did not violate the eighth

amendment, and his sentence violated the proportionate penalties clause of the Illinois

Constitution. The court denied the motion to reconsider sentence. This appeal follows.

¶ 39 II. ANALYSIS

¶ 40 Aguilar contends that his 50-year sentence is a de facto life sentence and violates the

eighth amendment to the United States Constitution and the proportionate penalties clause of the

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Illinois Constitution. He asserts the sentencing court imposed the de facto life sentence without

making a finding that he was permanently incorrigible and after making the express finding that

he was “not permanently incorrigible.”

¶ 41 Eighth Amendment

¶ 42 The United States Supreme Court concluded in Miller that a sentence of mandatory life

in prison without parole for an individual who was under the age of 18 years when the offense was

committed violates the eighth amendment’s prohibition on “ ‘cruel and unusual punishments’ .”

Miller, 567 U.S. at 465. The court reasoned that a mandatory sentencing scheme prevents a court

from considering a juvenile offender’s “age and the wealth of characteristics attendant to it,”

including “immaturity, impetuosity, and failure to appreciate risks and consequences.” Id. at 465,

471, 476-77. The court explained that “children are constitutionally different from adults for

purposes of sentencing” and are “ ‘less deserving of the most severe punishments,’ ” as they “have

diminished culpability and greater prospects for reform.” Id. at 471 (quoting Graham v.

Florida, 560 U.S. 48, 68 (2010)). Under Miller, “sentences must be based on a process employing

judicial discretion rather than statutory mandates” and “sentencing courts must take into account

how an offender’s youth and attendant circumstances ‘counsel against irrevocably sentencing them

to a lifetime in prison.’ ” People v. Wilson, 2023 IL 127666, ¶ 27 (quoting Miller, 567 U.S. at 480).

Later, in Montgomery v. Louisiana, the court stated that under Miller, a life sentence without parole

is barred “for all but the rarest of juvenile offenders, those whose crimes reflect permanent

incorrigibility” and “those rare children whose crimes reflect irreparable corruption.” 577 U.S.

190, 209-10 (2016); Wilson, 2023 IL 127666, ¶ 28. Then, in Jones v. Mississippi, the United States

Supreme Court explained that, before a sentencing court imposes a life sentence without parole,

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Miller does not require a sentencing court “to make a separate finding of permanent

incorrigibility.” 593 U.S. at __, 141 S. Ct. at 1316 .

¶ 43 Illinois codified the factors set forth in Miller in section 5-4.5-105(a) of the Code,

which requires the court to consider “additional factors” in mitigation before imposing a sentence

on an individual under the age of 18. Buffer, 2019 IL 122327, ¶ 36 (quoting 730 ILCS 5/5-4.5-

105(a) (West 2016)).

¶ 44 The Illinois Supreme Court has applied the reasoning of Miller to apply to mandatory

de facto life sentences. People v. Reyes, 2016 IL 119271, ¶¶ 9-10. “A de facto life sentence is a

term of years that is functionally equivalent to natural life without the possibility of parole.” People

v. Elliott, 2022 IL App (1st) 192294, ¶ 53 (citing Reyes, 2016 IL 119271, ¶ 9). A de facto life

sentence has been defined as a sentence of 40 years or more. Buffer, 2019 IL 122327, ¶¶ 40-41.

¶ 45 In People v. Holman, 2017 IL 120655, ¶¶ 40, 46, our supreme court concluded that

Miller also applied to discretionary, as well as mandatory, life sentences, and that, under Miller

and Montgomery, a juvenile offender may be sentenced to life in prison under a discretionary

sentencing scheme only “if the trial court determines that the defendant’s conduct showed

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

of rehabilitation.” However, after Aguilar filed his opening brief in this case, our supreme court

issued Wilson, which overruled Holman’s conclusions that Miller applied to discretionary life

sentences and that a trial court is required to make a separate finding of permanent incorrigibility

before it sentences a juvenile to a discretionary life sentence. Wilson, 2023 IL 127666, ¶¶ 41-42;

People v. Morris, 2023 IL App (1st) 220035, ¶ 3.

¶ 46 In Wilson, our supreme court reasoned that Miller “did not categorially prohibit life

sentences for juvenile offenders” but “held that such sentences must be based on a process

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employing judicial discretion rather than statutory mandates and that sentencing courts must take

into account how an offender’s youth and attendant circumstances ‘counsel against irrevocably

sentencing them to a lifetime in prison.’ ” Wilson, 2023 IL 127666, ¶ 27 (quoting Miller, 567 U.S.

at 480). The court stated that Holman’s holding that a sentencing court must make an additional

finding that a juvenile is permanently incorrigible before it imposes a discretionary life sentence

is “directly at odds with the holding in Jones—specifically, that additional findings are not

required, in that a discretionary sentencing scheme that allows a court to consider youth and its

attendant characteristics is ‘constitutionally sufficient.’ ” (Emphasis in original.) Id. ¶ 42 (quoting

Jones, 141 S. Ct. at 1313)). This court has explained that,

“Under Wilson, so long as a juvenile offender ‘was sentenced under a sentencing

scheme that granted the sentencing court the discretion to consider [his or her] youth and

attendant circumstances and to impose less than a de facto life sentence,’ and so long as it

is also ‘clear from the record that the sentencing court did not refuse, as a matter of law, to

consider [the defendant’s] youth’ (emphasis added), the defendant will be found to have

‘received the constitutionally required procedure under Miller.’ ” Morris, 2023 IL App

(1st) 220035, ¶ 55 (quoting Wilson, 2023 IL 127666, ¶ 44).

Our review of whether a sentence violates the eighth amendment is de novo. People v. Cavazos,

2023 IL App (2d) 220066, ¶ 38, pet. for leave to appeal pending, No. 220066 (filed August 31,

2023).

¶ 47 Here, the sentencing range for first degree murder is 20 to 60 years in prison (730 ILCS

5/5-4.5-20(a)) (West 2022)) and, at the time of the resentencing hearing, the firearm enhancement

was not mandatory (730 ILCS 5/5-4.5-105(b) (West 2022)). The court had the discretion to give

Aguilar a minimum sentence of 20 years. See Morris, 2023 IL App (1st) 220035, ¶ 55 (where the

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16-year-old defendant received a 100-year sentence, the court stated that because the court had the

discretion to impose a sentence as low as 26 years, “it would appear after Wilson that no eighth

amendment claim is available to him”). Further, Aguilar could have received a discretionary

sentence of up to 85 years, as long as the sentencing court considered his youth and attendant

circumstances. See People v. Webster, 2023 IL 128428, ¶ 20 (stating that the defendant “faced a

discretionary sentence of up to 85 years in prison (20 to 60 years for first degree murder plus a 25-

year firearm enhancement), so long as the trial judge considered defendant’s youth and attendant

circumstances.”) (Emphasis in original.))

¶ 48 The record shows that the sentencing court considered Aguilar’s youth when it imposed

the 50-year sentence. The court issued a comprehensive written order in which it recited the factors

set forth in Miller and the provisions in section 5-4.5-105(a) of the Code that a court must consider

when sentencing a person under the age of 18. The court explained its reasoning and expressly

stated that it reviewed the testimony and arguments, the PSI, and defense mitigation packet, which

included information about Aguilar’s childhood, adolescence, and history of traumatic

experiences. The court also discussed the facts of the offense and noted Aguilar’s age and his

attendant immaturity and his potential for rehabilitation. See Webster, 2023 IL 128428, ¶ 20

(finding that the trial court considered the defendant’s youth and attendant circumstances as the

court “expressly noted defendant’s age, lack of maturity, rehabilitative potential, and the

circumstances of the murder”). Further, as previously noted, under Wilson, the court was not

required to make the additional finding that Aguilar was permanently incorrigible before it

imposed the 50-year sentence. See Wilson, 2023 IL 127666, ¶ 42. Accordingly, Aguilar’s sentence

does not violate the eighth amendment.

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¶ 49 We note that Wilson was issued after Aguilar filed his opening brief, and in his reply

brief, he asserts that Wilson’s holding that a sentencing court is not required to make a permanent

incorrigibility finding before imposing a de facto life sentence does not apply here where the court

made the express finding that he was “not permanently incorrigible.” However, as discussed

above, Aguilar’s sentence was discretionary and the record shows that the sentencing court

considered his youth and attendant circumstances, so his sentence does not violate Miller. See

Morris, 2023 IL App (1st) 220035, ¶ 55.

¶ 50 We note that Aguilar also contends that his sentence is a de facto life term and

implicates Miller and Holman because Illinois’s parole statute for individuals under the age of 21

does not provide him a “meaningful opportunity to obtain release” based on his demonstrated

maturity and rehabilitation as required by Miller. He asserts that the national consensus against

Illinois’s strict parole limitations for juvenile offenders shows that his 50-year sentence was

unconstitutionally disproportionate without the finding that he was permanently incorrigible.

¶ 51 Under section 5-4.5-115(b) of the Code, a person convicted of first degree murder is

eligible for parole after serving 20 years if that person was under 21 at the time of the offense and

was sentenced after June 1, 2019, the effective date of the statute. 730 ILCS 5/5-4.5-115(b) (West

2022).

¶ 52 Here, the parole statute applies to Aguilar, as he was 17 years old at the time of the

offense, and his sentencing occurred in March 2022 after the June 1, 2019, effective date. However,

we need not address the effect that the possibility of Aguilar’s parole eligibility has here because,

as previously discussed, his 50-year sentence does not violate the eighth amendment, as the court

had the discretion to impose less than a de facto life sentence, and it considered his youth and

attendant circumstances when it sentenced him. See Morris, 2023 IL App (1st) 220035, ¶ 55

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(noting that the question regarding the “impact of the availability of parole” may be moot in light

of Wilson, which overruled Holman).

¶ 53 Proportionate Penalties Clause of the Illinois Constitution

¶ 54 Aguilar contends that his 50-year sentence for an offense committed when he was 17

years old is a de facto life sentence and unconstitutional under the proportionate penalties clause

of the Illinois Constitution. In Aguilar’s opening brief, he asserts that Holman’s requirement that

a court must make a permanent incorrigibility finding before imposing a life sentence, should also

apply under the proportionate penalties clause and that his 50-year sentence violates the

proportionate penalties clause because it was imposed without the sentencing court making this

finding.

¶ 55 As previously discussed, in Wilson, which was issued after Aguilar filed his opening

brief, our supreme court overruled Holman’s requirement that a sentencing court must make a

finding that the juvenile offender is permanently incorrigible before imposing a life sentence.

Wilson, 2023 IL 12766, ¶ 42; see Cavazos, 2023 IL App (2d) 220066, ¶ 64 (“Again, Holman’s

requirement that there be a permanent incorrigibility finding has now been overruled.”).

¶ 56 In Aguilar’s reply brief, he argues that Wilson did not answer the question whether the

proportionate penalties clause requires a permanent incorrigibility finding and asserts that the

Illinois Constitution is more expansive than the eighth amendment. He also argues that his sentence

violates the proportionate penalties clause because the court imposed a 50-year de facto life

sentence while also making the findings that he was amendable to rehabilitation and “not

permanently incorrigible.”

¶ 57 Under the proportionate penalties clause, “[a]ll penalties shall be determined both

according to the seriousness of the offense and with the objective of restoring the offender to useful

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citizenship.” Ill. Const. 1970, art. 1, § 11. A sentence “violates the proportionate penalties clause

if the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense

as to shock the moral sense of the community.” People v. Ruddock, 2022 IL App (1st) 173023, ¶

70. Further, “[o]ur supreme court has explained that the proportionate penalties clause’s unique

emphasis on rehabilitative potential provides ‘a limitation on penalties beyond those afforded by

the eighth amendment [to the United States Constitution]’ ”). Id. ¶ 68 (quoting People v. Clemons,

2012 IL 107821, ¶¶ 39-41)). Our review regarding the question of whether a sentence violates the

proportionate penalties clause is de novo. Cavazos, 2023 IL App (2d) 220066, ¶ 63.

¶ 58 Initially, we recognize that Wilson, which overruled Holman’s finding that a court must

make a permanent incorrigibility finding before imposing a life sentence, addressed the

defendant’s argument made under the eighth amendment and did not address his claim under the

proportionate penalties clause. See Wilson, 2023 IL 127666, ¶ 46. We also note that in People v.

Clark, 2023 IL 127273, ¶ 72, which involved a 24-year-old defendant, our supreme court has stated

that “[t]he reasoning in Miller does not apply to discretionary life sentences under proportionate

penalties clause standards where the circuit court does consider all relevant mitigating factors at

sentencing and the circuit court’s exercise of discretion is supported by the evidence in the record.”

Here, as previously discussed, Aguilar received a discretionary sentence, and the sentencing court

considered his youth and attendant immaturity.

¶ 59 Nevertheless, under both the eighth amendment and the proportionate penalties clause,

“a juvenile defendant must make the same threshold showing: his or her sentence is a life sentence

or de facto life sentence.” People v. Hill, 2022 IL App (1st) 171739-B, ¶ 42. Here, Aguilar did not

receive a de facto life sentence.

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No. 1-22-0470

¶ 60 To determine “whether a de facto life sentence has been imposed, the court must

consider the defendant’s ‘earliest opportunity for release.’ ” People v. Kendrick, 2023 IL App (3d)

200127, ¶ 41 (quoting Dorsey, 2021 IL 123010, ¶ 54). Further, “[i]f a defendant has a meaningful

opportunity to obtain release before serving more than 40 years in prison, he has not received a de

facto life sentence.” Id. The United States Supreme Court has held that “[a] State is not required

to guarantee eventual freedom, but must impose a sentence that provides some meaningful

opportunity for release based on demonstrated maturity and rehabilitation.” Graham, 560 U.S. at

75. In Dorsey, our supreme court found that the day-for-day good-conduct credit statutory scheme

was relevant in determining what constitutes a de facto life sentence. Dorsey, 2021 IL 123010, ¶

38, ¶¶ 1, 54. In doing so, it explained that the good-conduct statutory scheme, “which allows for

the opportunity of release short of a de facto life sentence, is at least on par with discretionary

parole for a life sentence, which has specifically been held by the Supreme Court to pass muster

under the eighth amendment.” Id. ¶ 54 (citing Montgomery, 577 U.S. at 212).

¶ 61 Here, as previously discussed, under the parole statute for juvenile offenders under the

age of 21, Aguilar will be eligible for parole and will have the opportunity to seek release before

serving 40 years. See 730 ILCS 5/5-4.5-115(b) (West 2022). Aguilar therefore did not receive a

de facto life sentence, and he cannot establish that his sentence violates the proportionate penalties

clause. See Elliott, 2022 IL App (1st) 192294, ¶ 56 (concluding that the defendant’s 70-year

sentence was not a de facto life sentence since he will be eligible for parole after serving 20 years

of his sentence); see also Hill, 2022 IL App (1st) 171739-B, ¶ 42 (concluding that the defendant

was not serving a de facto life sentence “so neither the United States nor the Illinois Constitution

has any work to do”).

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¶ 62 Aguilar contends however that his 50-year sentence is a de facto life sentence because

the parole statute does not provide a meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation that is required under Miller. He asserts that the parole

statute’s limitations for juvenile homicide offenders shows that his de facto life term is

disproportionate without a finding that he was permanently incorrigible.

¶ 63 Aguilar argues that the parole statute does not provide a meaningful opportunity for

release because Illinois’s limitations fall outside of the country’s evolving standard of decency. He

takes issue with the parole statute’s requirements that a juvenile homicide offender must serve 20

years before applying for parole, the offender must wait 10 additional years for the second review

if the first attempt is denied, and, if the second attempt is denied, the offender is foreclosed from

seeking review ever again. See 730 ILCS 5/5-4.5-115(b), (m) (West 2022). He also contends that

the parole rules conflict with Miller’s findings about juvenile offenders’ culpability and

rehabilitative potential.

¶ 64 In Cavazos, the defendant was sentenced to 50 years in prison for offenses he

committed when he was 17 years old, and he raised similar arguments on appeal regarding the

parole statute that Aguilar raises here. 2023 IL App (2d) 220066 ¶ 50. The court concluded that

the “parole statute affords defendant a meaningful opportunity for release, based on his maturity

and rehabilitation, before serving a de facto life sentence of over 40 years.” Id. ¶ 60. In the court’s

analysis, the court reviewed the legislative transcripts from the legislature floor debate that

occurred before the parole statute was enacted and concluded: “It is clear that the legislature, fully

aware of Miller and the relevant considerations concerning juvenile sentencing and fully within its

exclusive authority, created the new parole statute and modified the parole review factors for the

purpose of creating a meaningful opportunity for parole for juvenile offenders.” Id. ¶ 54.

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No. 1-22-0470

¶ 65 The court in Cavazos further explained that “the new parole statute explicitly requires

the Board to consider the concerns implicated by Miller and its progeny.” (Emphasis in original.)

Id. ¶ 56. Under the parole statute, the court stated that, “ ‘in considering the factors affecting the

release determination under 20 Ill. Adm. Code 1610.50(b), the Prisoner Review Board panel shall

consider the diminished culpability of youthful offenders, the hallmark features of youth, and any

subsequent growth and maturity of the youthful offender during incarceration.’ ” (Emphasis in

original.) Id. ¶ 56 (quoting 730 ILCS 5/5-4.5-115(j) (West 2020)). The court further concluded:

“[W]hen our legislature created the new parole statute, it was fully apprised of Miller

and its mandates, as well as, presumptively, the processes used by other states. While we

might be sympathetic to some of defendant’s points, and hope the legislature reconsiders

some parole restrictions (particularly the lengthy period between petition opportunities and

foreclosure of opportunities thereafter), it the legislature’s role to craft parole statutes and

procedures and to determine what is meaningful. Here, it did so after due debate, much

deliberation, and lengthy negotiations. It considered not only Miller and all of its

implications, but also victims’ rights, the seriousness of offenses (deliberately tailoring

waiting periods for petitions based on the offense), and the proper factors to be considered

within the Board’s authority.” Id. ¶ 60.

After finding that the parole statute afforded the defendant a meaningful opportunity for release

before serving a de facto life sentence of over 40 years, the court rejected the argument that his

50-year sentence violated the proportionate penalties clause because the court failed to make a

permanent incorrigibility finding. Id. ¶¶ 60-64. The court reasoned that the defendant did not

receive a life sentence because he would be eligible for parole “before serving the equivalent of a

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life sentence” and would have “two meaningful opportunities to seek release prior to serving more

than 40 years” in prison. Id. ¶ 64.

¶ 66 Further in Elliott, under the defendant’s proportionate penalties clause claim, this court

found that the 20-year-old defendant’s 70-year sentence did not implicate Miller and was not a de

facto life sentence “since he is eligible for parole,” noting that “with eligibility for parole, [the

defendant] may obtain release upon demonstrated rehabilitation and maturity upon serving 40 or

fewer years.” 2022 IL App (1st) 192294, ¶ 56. This court further stated that “our legislature’s 2019

enactment providing parole eligibility for offenders under age 21 convicted of serious crimes

seems to have been a remedial response to the constitutional issues recognized in Miller for both

juveniles and young adults.” Id.

¶ 67 Likewise, here, we conclude that Aguilar did not receive a de facto life sentence

because under the parole statute, he will have a reasonable opportunity for release based on his

maturity and rehabilitation after serving 20 years and before serving a de facto life sentence of 40

years in prison. See Cavazos, 2023 IL App (2d) 220066 ¶¶ 60, 64 (the 17-year-old defendant’s 50-

year sentence was not a life sentence because he would be eligible for parole before serving the

equivalent of a life sentence); Kendrick 2023 IL App (3d) 200127, ¶ 43 (concluding that the 19-

year-old defendant’s 60-year sentence was not a de facto life sentence and finding that he “has a

reasonable opportunity to obtain release well before serving more than 40 years in prison”).

Therefore, even if we assume that Holman’s conclusion that a sentencing court must make a

permanent incorrigibility finding before imposing a life term still applied under the proportionate

penalties clause, it would not apply here, as Aguilar did not receive a de facto life sentence. See

Cavazos, 2023 IL App (2d) 220066 ¶ 64 (concluding that “even if, theoretically, Holman’s

requirement for an incorrigibility finding had remained valid, and a failure to issue one might have

23
No. 1-22-0470

violated the proportionate penalties clause,” there was no violation where the defendant would be

“eligible for parole before serving the equivalent of a life sentence.”) (Emphasis in original.) We

therefore disagree with Aguilar’s arguments that his 50-year sentence violates the proportionate

penalties clause because the sentencing court imposed a de facto life term without making a

permanently incorrigibility finding and with making the express finding that he was “not

permanently incorrigible.” See id. ¶ 64 (where the trial court did not make a permanent

incorrigibility finding the defendant’s 50-year sentence did not violate the proportionate penalties

clause). Aguilar’s parole eligibility reflects the sentencing court’s findings that he is not

permanently incorrigible and is amendable to rehabilitation.

¶ 68 We note that after the parties completed briefing, Aguilar cited as additional authority

People v. Gates, 2023 IL App (1st) 211422, a recent decision by a division in this court. In Gates,

the court found that, although the defendant, who was 18 years old at the time of the offense and

sentenced to 48 years, could be eligible for parole after serving 20 years under the parole statute,

“the possibility for parole does not preclude [the defendant] from serving a de facto life sentence.”

Id. ¶ 70. It concluded that the “parole scheme does not afford offenders like [the defendant] access

to the courts or a meaningful opportunity for release and cannot be used to remedy a de facto life

sentence that violates the proportionate penalties clause.” Id. ¶¶ 36-49. In doing so, the court found

that our supreme court’s decision in Dorsey, which held that good-conduct credit is relevant to the

determining of what constitutes a de facto life sentence for a juvenile offender (Dorsey, 2021 IL

123010, ¶ 1), was inapplicable. Gates, 2023 IL App (1st) 211422, ¶ 41. It noted that Dorsey

“focused on the ‘power’ that inmates have to shorten their sentence because their behavior, not a

subjective board determination, determines whether a day is counted towards sentence.” Id. (citing

Dorsey, 2021 IL 123010, ¶¶ 52-53).

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No. 1-22-0470

¶ 69 In Dorsey, however, the supreme court equated the parole statute with the good-

conduct statutory scheme. Dorsey, 2021 IL 123010, ¶¶ 53-54; Gates, 2023 IL App (1st) 211422,

¶ 79 (Coghlan, J., dissenting) (stating that in Dorsey “our supreme court equated parole with good

conduct credit in that, under either, ‘it is in a defendant’s power to shorten his sentence.’ ”) (quoting

Dorsey, 2021 IL 123010, ¶¶ 53-54)). In Dorsey, the court also rejected the defendant’s argument

that “good-conduct credit is not like parole because obeying prison rules does not demonstrate

rehabilitation.” Dorsey, 2021 IL 123010, ¶ 53; Gates, 2023 IL App (1st) 211422, ¶ 79 (Coghlan,

J., dissenting) (disagreeing with the majority that Dorsey is inapplicable to parole, stating that “our

supreme court ‘flatly reject[ed]’ the notion that ‘good-conduct credit is not like parole because

obeying prison rules does not demonstrate rehabilitation.’ ”). The court in Dorsey stated:

“We likewise find that it is in a defendant’s power to shorten his sentence by earning

good-conduct credit and that earning such credit allows a defendant the opportunity to

exhibit maturity and rehabilitation. The statutory scheme here, which allows for the

opportunity of release short of a de facto life sentence, is at least on par with discretionary

parole for a life sentence, which has specifically been held by the Supreme Court to pass

muster under the eighth amendment. See Montgomery, 577 U.S. at 212, 136 S. Ct. 718 (a

life sentence for a juvenile offender does not violate Miller or the eighth amendment if

there is a possibility of parole).” Dorsey, 2021 IL 123010, ¶ 54.

Accordingly, while we recognize the decision in Gates, under our supreme court’s decision in

Dorsey, which equated good conduct credit with discretionary parole, Aguilar’s eligibility for

discretionary parole and his “earliest opportunity for release” is relevant in assessing whether his

sentence constitutes a de facto life sentence. See Dorsey, 2021 IL 123010, ¶¶ 1, 54; Elliott, 2022

IL App (1st) 192294, ¶ 56 (citing Dorsey and concluding that the defendant’s 70-year sentence

25
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was not a de facto life sentence, noting that he was eligible for parole upon serving 40 years or

less). In addition to following Dorsey, we note that we are not bound by the appellate court’s

decision in Gates. See O’Casek v. Children’s Home and Aid Society of Illinois, 229 Ill. 2d 421,

440 (2008) (“[T]he opinion of one district, division, or panel of the appellate court is not binding

other districts divisions, or panels”).

¶ 70 We also note that after Aguilar serves 20 years, he will be eligible for parole and, at

that time, he will have the opportunity to demonstrate his maturity and rehabilitation. The parole

statute “allows the Board to assess and weigh youth, its attendant circumstances, demonstrated

maturity, rehabilitation, and all parole release factors in a manner or through a ‘lens’ compliant

with Graham and Miller.” (Emphasis in original.) Cavazos, 2023 IL App (2d) 220066, ¶ 59; see

730 ILCS 5/5-4.5-115(j) (West 2022) (“In considering the factors affecting the release

determination under 20 Ill. Adm. Code 1610.50(b), the Prisoner Review Board panel shall consider

the diminished culpability of youthful offenders, the hallmark features of youth, and any

subsequent growth and maturity of the youthful offender during incarceration.”). If the Board does

not consider his youth and attendant circumstances or his demonstrated maturity and rehabilitation,

then the denial of parole could violate the principles set forth under Miller. See id. (where the court

found that the parole statute provides a meaningful opportunity for release, the court stated that,

“we are certainly not suggesting that a parole hearing may operate as a sham” and “if a juvenile

offender has adequately demonstrated maturity and rehabilitation, denying parole based solely on

the seriousness of the crime could indeed violate the principles behind Miller and Graham.”)

(Emphasis in original.)

¶ 71 Trial Court’s Findings and Miller

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¶ 72 Aguilar contends that his 50-year sentence violates the eighth amendment to the United

States Constitution and the proportionate penalties clause of the Illinois Constitution because the

court’s findings contradicted Miller’s findings regarding certain mitigating characteristics of

juvenile offenders. He also argues that his sentence violated the proportionate penalties clause

because it was imposed pursuant to findings about juvenile offenders that were contrary to and

incompatible with Illinois’s evolving standard of decency in light of Illinois law and Miller. We

review de novo the question regarding whether a sentence violates the eighth amendment and the

proportionate penalties clause. Cavazos, 2023 IL App (2d) 220066, ¶ 67.

¶ 73 Initially, we note that, “to trigger Miller, such that the [sentencing] court’s findings

here could even contradict it, [a] defendant must be sentenced to life without parole.” Id. ¶ 68.

However, as previously discussed, Aguilar was not sentenced to life without parole. See id.

(rejecting the defendant’s argument that his sentence was unconstitutional because the trial court’s

findings contradicted Miller and concluding that “his sentence is not properly considered in the

constitutional framework he sets forth,” as he was not sentenced to life without parole).

¶ 74 Further, as previously discussed, under Miller, a sentencing court must consider a

juvenile offender’s youth and its attendant circumstances before it imposes a life sentence (id. ¶

69) and under section 5-4.5-105(a) of the Code, the court is required to consider additional factors

(Buffer, 2019 IL 122327, ¶ 36). As previously discussed, the record shows that the sentencing

court considered the factors in Miller and the provisions set forth in section 5-4.5-105(a) when it

sentenced him. The trial court expressly stated that it reviewed the arguments presented, and it

reviewed and provided summaries on the mitigation evidence, including the PSI, defense

mitigation packet, Aguilar’s statement in allocation, and the testimony. The court also expressly

27
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stated that it found Aguilar’s youth and attendant immaturity to be mitigating and that he had

potential for rehabilitation.

¶ 75 Further, Aguilar’s argument that the court’s findings contradicted and were

incompatible with Miller and Illinois’s evolving standard of decency challenges the weight the

court gave to the mitigating factors, including impetuosity, peer pressure, and rehabilitation. See

Cavazos, 2023 IL (2d) 220066, ¶ 69 (rejecting the defendant’s argument that his sentence was

unconstitutional because the court’s findings contradicted Miller, and noting that the defendant

disagreed “with the length of the sentence imposed after the court considered” the Miller factors

and section 5-4.5-105(a) and, “in effect, the weight the court gave them”) (Emphasis in original.)

As discussed below, as a reviewing court, we will not reweigh the sentencing factors even if we

would have weighed the factors differently. See People v. Alexander, 239 Ill. 2d 205, 213 (2010)

(citations omitted) (stating that the reviewing court must rely on a “cold record” and “must not

substitute its judgment for that of the trial court merely because it would have weighed the factors

differently”).

¶ 76 Excessive Sentence

¶ 77 Aguilar contends that his sentence is excessive in light of his youth, significantly

diminished moral culpability, and potential for rehabilitation. He argues the court overlooked and

misconstrued critical mitigation evidence when it found that he provided conflicting statements on

his family relationships, gang involvement, childhood abuse, and substance abuse.

¶ 78 The Illinois Constitution provides that “[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; Hill, 2022 IL App (1st) 171739-B, ¶ 45. “This

constitutional mandate calls for the balancing of the retributive and rehabilitative purposes of

28
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punishment.” People v. Wyma, 2020 IL App (1st) 170786, ¶ 93. To do so, the sentencing court

must consider “all factors in aggravation and mitigation, including, ‘the defendant’s age,

demeanor, habits, mentality, credibility, criminal history, general moral character, social

environment, and education, as well as the nature and circumstances of the crime and of

defendant’s conduct in the commission of it.’ ” Id. ¶ 93 (quoting People v. Quintana, 332 Ill. App.

3d 96, 109 (2002)).

¶ 79 Further, the sentencing court “has broad discretionary powers in imposing a sentence,

and its sentencing decisions are entitled to great deference.” Alexander, 239 Ill. 2d at 212. “[T]he

trial judge, having observed the defendant and the proceedings, is in a much better position to

consider factors such as the defendant’s credibility, demeanor, moral character, mentality,

environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36. “Thus, we will not

substitute our judgment for that of the trial court merely because we would have weighed relevant

factors differently.” Elliott, 2022 IL App (1st) 192294, ¶ 57. Further, “[a] sentence within the

appropriate sentencing range is generally accorded great deference by this court.” People v.

Villalobos, 2020 IL App (1st) 171512, ¶ 72. We review an excessive sentence claim for an abuse

of discretion. Snyder, 2011 IL 111382, ¶ 36. “[A]n abuse of discretion occurs when the sentence

is greatly at variance with the spirit or purpose of the law or manifestly disproportionate to the

nature of the offense.” People v. Colon, 2018 IL App (1st) 160120, ¶ 66.

¶ 80 Here, Aguilar was sentenced to 25 years in prison for first degree murder, which falls

well within the applicable sentencing range of 20 to 60 years (730 ILCS 5/5-4.5-20(a) (West

2022)). Aguilar personally discharged a firearm that proximately caused the victim’s death, so the

sentencing court used its discretion to impose a consecutive 25-year firearm enhancement. 730

ILCS 5/5-8-1(d)(iii) (West 2022); 730 ILCS 5/5-4.5-105(b) (West 2022). Because Aguilar’s 50-

29
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year sentence falls within these statutory ranges, it is presumed to be proper. See People v. Knox,

2014 IL App (1st) 120349, ¶ 46 (“when a sentence falls within the statutory guidelines, it is

presumed to be proper”).

¶ 81 Aguilar nevertheless argues that his sentence is excessive when compared to the

overwhelming mitigation evidence presented at the resentencing hearing. He also argues that the

court overlooked the mitigation evidence.

¶ 82 There is nothing in the record to indicate that the court did not consider any of the

mitigation evidence presented. See People v. Lopez, 2019 IL App (3d) 170798, ¶ 23 (“ ‘Where

relevant mitigating evidence is before the court, it is presumed that the court considered it absent

some indication in the record to the contrary other than the sentence itself.’ ”) (quoting People v.

Dominguez, 255 Ill. App. 3d 995, 1004 (1994)). Further, the sentencing court was not required to

articulate each factor it considered. See People v. Merriweather, 2022 IL App (4th) 210498, ¶ 31

(“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 all relevant

factors”). In addition, we find that Aguilar’s argument that the court “overlooked” critical

mitigation evidence challenges the weight the court gave to the mitigating factors, and we will not

reweigh the sentencing factors. See People v. Paige, 2023 IL App (1st) 220925, ¶ 54-U (where the

defendant argued that the sentencing court “downplayed” and “discounted” certain mitigating

factors, the reviewing court stated he was essentially challenging how the court weighed the

factors, and “[a] reviewing court will not find a sentence improper merely because it would have

weighed the factors differently”); see also Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023) (unpublished

Rule 23 orders filed on, or after, January 1, 2021, “may be cited for persuasive purposes”).

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¶ 83 Aguilar also contends that we should remand for resentencing because the court

misconstrued the mitigation evidence. He asserts that the court incorrectly found that Aguilar

provided conflicting and inconsistent information about his family relationships, substance abuse,

the physical abuse he experienced as a child, and how he became involved with a gang. From our

review of the sentencing court’s order, we do not agree that the court misconstrued the evidence.

Rather, the court provided detailed summaries of Aguilar’s statements regarding his family history,

gang involvement, rehabilitation, and substance abuse, that were contained in the PSI and defense

mitigation report. We cannot find that the court’s statements that Aguilar provided conflicting

information on these topics shows that the court misconstrued the evidence or that it did not

consider the relevant mitigating factors.

¶ 84 Aguilar argues that the sentencing court misunderstood some of the statutory factors

set forth in section 5-4.5-105(a) or improperly treated them as aggravating and that therefore his

sentence is based on improper sentencing factors. We disagree. As previously discussed, there is

nothing to indicate that the court did not consider any of the mitigation evidence that Aguilar

presented or the factors in Miller or provisions in section 5-4.5-105(a). Further, the State may

challenge the mitigation evidence presented as well as the weight and assessment that a defendant

gives to certain mitigation factors, and the court may weigh the factors differently than they were

presented. See Paige, 2023 IL App (1st) 220925, ¶ 42-U (noting that the State may contest the

“significance or weight” of the mitigation evidence and “it is not ‘improper for a [sentencing court]

to consider a defendant’s evidence presented in mitigation as a factor in aggravation.’ ”) (quoting

People v. McNeal, 175 Ill. 2d 335, 369 (1997)).

¶ 85 Further, under section 5-4.5-105(a), two of the factors a court considers are “the

circumstances of the offense” and the “person’s degree of participation and specific role in the

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offense, including the level of planning by the defendant before the offense.” 730 ILCS 5/5-4.5-

105(a)(5), (6) (West 2022); Merriweather, 2022 IL App (4th) 210498, ¶ 35. Here, the sentencing

court concluded that the offense was “not an impetuous act,” finding that Aguilar was riding a bike

with a loaded gun and acted alone when he boldly and purposefully approached four young men

and asked them about their gang affiliation. The court stated that Aguilar was the only person with

a gun and there was no provocation by the group or outside peer pressure from anyone when he

fired his gun multiple times at people who were running away from him. The court was not

prohibited from considering the circumstances of the offense or Aguliar’s degree of participation

in it as aggravating evidence. See Paige, 2023 IL App (1st) 220925, ¶ 42-U (“Nothing in section

5-4.5-105 prohibited the court from considering the circumstances of the offense, or defendant’s

degree of participation in the offense, as aggravating if the evidence supported that

characterization”); Merriweather, 2022 IL App (4th) 210498, ¶ 35.

¶ 86 In addition, the court expressly found that Aguilar’s age and attendant immaturity was

mitigating, and it acknowledged his potential for rehabilitation. However, the court was not

required to give more weight to Aguilar’s rehabilitative potential than to the seriousness of the

offense. See Cavazos, 2023 IL App (2d) 220066, ¶ 73 (“a sentencing is not required to give

rehabilitative potential greater weight than the seriousness of the offense”).

¶ 87 Aguilar also asserts that the sentencing court misstated facts about the original

sentencing hearing because it stated that Aguilar made a statement in allocution at the original

hearing when he did not do so. From our review of the record as a whole, we do not find that the

court relied on or gave important weight to this incorrect fact when reaching its sentencing

decision. See People v. Ward, 113 Ill. 2d 516, 526-27 (1986) (stating that “the determination of

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whether or not the sentence was improper must be made by considering the entire record as a

whole”).

¶ 88 Lastly, the court noted in its order that under the parole statute, Aguilar “has the

possibility of release after serving 20 years, upon a showing of his growth and maturity during

incarceration.” The court also stated that he “has a chance to prepare himself for the outside world.

He can learn a trade in prison, or get the GED he has said since 2007 that he wants to get, and

continue further schooling. He can stop his gang activities, violent behavior and pummeling other

inmates.” Aguilar’s parole eligibility supports the finding that his sentence is not greatly at

variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the

offense. See Elliott, 2022 IL App (1st) 192294, ¶ 59 (where the defendant argued his sentence was

excessive for “reasons that parallel a Miller-type claim,” the court concluded that the defendant’s

“eligibility for parole was relevant” and “militates against finding his sentence excessive, greatly

at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of

the offense”).

¶ 89 Accordingly, from our review of the record, the sentencing court did not abuse its

discretion when it resentenced Aguilar to 50 years in prison.

¶ 90 III. CONCLUSION

¶ 91 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 92 Affirmed.

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