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______________________________________________________________________________ 2019 IL App (1st) 170308 No. 1-17-0308 Opinion filed August 1, 2019 Fourth Division

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff

- Appellee, ) Cook County. )
v. ) No. 95 CR 26400 (01) ) TAKI PEA COCK , ) Honorable ) Frank Zelezinski, Defendant -Appellant. ) Judge, presiding.

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion. OPINION ¶ 1 Defendant, Taki Pea cock , is currently serving concurrent respective sentences of 80
year s, 30 years, 30 years, and 30 years of imprisonment for his conviction s for the 1995 first degree murder , aggravated kidnapping, aggravated vehicular hijacking, and armed robbery of the victim, Rufus Taylor. The evidence at defendant’s bench trial, which is more fully set out in the opinion arising out of defendant’s direct appeal (see People v. Pe a cock , 324 Ill. App. 3d 749 (2001)) , showed that defendant and a co

- offender, Lawrence Wallace, pl anned to take the victim’s car and defendant obtained a gun from his sis ter

- in

- law. The next day, Wallace put a gun to the victim’s head and held him at gunpoint in the backseat of the victim’s vehicle, while defe ndant drove to a secluded location. Thereafter, Wallace shot the victim twice, and def endantfired at the victim once but missed. Wallace and defenda nt left in the victim’s car and were apprehended in that vehicle in Indiana. T he victim later died from his injuries. Defendant was 17 years old at the time of the offense. ¶ 2 This appeal concerns defendant’s September 12, 2016, successive postconviction petition, in which he argued that his 80- year sentence was an unconstitutional de facto life sentence pursuant to Miller v. Alabama , 567 U.S. 460 (2012). The circuit court denied defendant leave to file his successive postconviction petition on October 12, 2016, finding that the petition was untimely and that defendant had failed to file a motion for leave to file the petition. ¶ 3 In this court, defendant contends that he should have been permitted to file his successive postconviction petition because the 80- year sentence imposed on his conviction for a crime committed while he was a juvenile constitutes a de facto life sentence and violates the eighth amendm ent of the U nited S tates Constitution and the proportionate penalties clause of the Illinois Constitution. D efendant acknowledges that he may qualify for day

- for -day credit, and accordingly, he will be required to serve at least 50 % , or 40 years, of his 80- year sentence. Defendant contends that his sentence is a de facto life sentence, triggering the protections of Miller and requiring a sentencing court to consider defendant’s youth and attendant characteristics in fashioning a sentence. Defendant further contends that the circuit court did not consider such factors, and accordingly, this court should remand his case for a new sentencing hearing. ¶ 4 The State responds that the circuit court properly denied defendant leave to file his

succe ssive postconviction petition because his 80- year sentence, for which he will “likely serve 40 years,” does not constitute a de facto life sentence. The State points out that a review of defendant’ s Illinois Department of Corrections (IDOC) inmate status record reveals a projecteddischarge date of August 31, 2035, exactly 40 years after he went into IDOC custody, on August 31, 1995. 1 ¶ 5 We note that this court previously stayed this case, without objection from either party, because the singular issue in this case would be controlled by the supreme court’s forthcoming decision in People v. Buffer , 2019 IL 122327

. The supreme court has since issued its decision in Buffer , and accordingly, this court lifted the stay for ruling on this case. ¶ 6 In Buffer , the supreme cou rt reviewed the circuit court’s denial of the defendant’s post conviction petition, in which the defendant argued that his 50

- year prison sentence, imposed for a crime he committed when he was 16 years old, violated the eighth amendment because it

was a de facto life sentence. ¶ 7 After reviewing the history of Miller and its progeny, the court in Buffer noted that to prevail on such a claim, “a defendant sentenced for an offense committed while a juvenile must show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto , and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence.” Id. ¶ 27 (citing People v. Holman , 2017 IL 120655, ¶ 40 , and People v. Reyes , 2016 IL 119271, ¶ 9). ¶ 8 The supreme court then considered where the line should be drawn at which a sentence constitutes a de facto life sentence. In its analysis, the supreme court looked to section 5 -4.5

- 105(c) of the Unified Code of Corrections (Code), which provides that where a juvenile defendant is convicted of the first degree murder of a victim belonging to certain categories of persons, including police officers and IDOC employees , “ ‘ the court shall impose a sentence of

1 This court may take judicial notice of information appearing on the IDOC website. People v. Ware , 2014 IL App (1st) 120485, ¶ 29.not less than 40 years of i mprisonment.’ ” Id. ¶ 37 (quoting 730 ILCS 5/5 -4.5- 105(c) (West
2016 )). ¶ 9 The supreme court used this statute to conclude that “the General Assembly has determined that the specified first degree murders that would justify natural life imprisonment for adul t offenders would warrant a mandatory minimum sentence of 40 years for juvenile offenders. The legislature evidently believed that this 40

- year floor for juvenile offenders who commit egregious crimes complies with the requirements of Miller .” Id. ¶ 39. ¶ 10 Th e supreme court then stated,

“ In determ ining when a juvenile defendant’s prison term is long enough to be considered de facto life without parole, we choose to draw a line at 40 years. This specific number does not originate in court decisions, legal lit erature, or statistical data. It is not drawn from a hat. Rather, this number finds its origin in the entity best suited to make such a determination

— the legislature. ” Id. ¶ 40. ¶ 11 T he court then concluded that “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in vi olation of the eighth amendment.” Id. ¶ 41. Accordingly, the court found that the defendant’s 50

- year sentence , which

was greater than 40 years, was a de facto life sentence. Id. ¶ 42. ¶ 12 The court in Buffer also concluded that the circuit court failed to consider the defendant’s youth and its attendant characteristics in imposing that sentence. Id. While the court noted that the circuit court stated that it “ ‘ considered all of the relevant statutory require ments, ’ ” including the presentence investigation report ( PSI ) and the defendant’s age, the record did not indicatethat the court considered defendant’s youth and its attendant characteristics as required by Miller and its progeny. Id. ¶¶ 5, 46 (citing Holman , 2017 IL 120655, ¶ 46). ¶ 13 Following the supreme court’s decision in Buffer , this court allowed the parties to fil e supplemental briefs to address the impact of the supreme court’s opinion on defendant’s claims. ¶ 14 In defendant’s supplemental brief, he con tends that Buffer supports a finding that his 80

- year sentence constitutes a de facto life sentence and that such a conclusion is warranted when consi dering either his full sentence or the possibility that he may serve 40 years in prison under day for day sentencing . Defendant contends that the Buffer court “did not clearly delineate” whether a de facto life sentence is a sentence of “40 years or more” or if it only includes sentences that are “more than 40 years.” Defendant acknowledges that the court stated that “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence.” Id. ¶ 41. Defendant, however, also points out that the Buffer court stated that it chose “to draw a line at 40 y ears” ( id. ¶ 40) and that the special concurrence in Buffer characterized the majority opinion as holding that “a prison term of 40 years ‘is long enough to be considered de facto life without parole ’ ” ( id. ¶ 60 (Burke, J., specially concurring)). Defenda nt also points out that the supreme court’s analysis was based on section 5 -4.5- 105(c) of the Code, and contends that the supreme court’s statement that a sentence of 40 years is not a de facto life sentence “does not make sense in light of section 5 -4.5-1 05(c)’s requirement that the minimum sentence of 40 years be imposed on a juvenile for offenses that would require the imposition of natural life for an adult.” Finally, d efendant asserts that, even assuming that the Buffer court intended that only sentences of more than 40 years constitute de facto life sentences, defendant’s sentence violates Buffer because it is not guaranteed that he will serve only 40 yearsand his sentence is “entirely dependent on the condition that *** he will not forfeit even one day of good conduct credit.” ¶ 15 In response, the State contends that defendant’s sentence is constitutional under Buffer

. The State points out that defendant’s projected release date was previously August 31, 2035, “exactly 40 years from the date of the offense,” but between the time defendant filed his supplemental brief and the State filed its response, “defendant’s projected release date was recently shortened by 15 days to August 16, 2035. ” The State contends that defendant will “now likely serve 39 years, 11 months and 16 days in prison” prior to his release, and accordingly, “his sentence does not constitute a de facto life sentence in violation of the eighth amendment.” ¶ 16 Although the supreme court’s decision in Buffer did not specifically address the situation we are faced with here, in which a defendant has been sentenced to a lengthy prison sentence but is eligible for good-conduct sentencing credit, Buffer ’s reasoning applies. The i mport of Miller , and all of the subsequent decisions following it, including Buffer , is “ ‘ that imposition of a
State ’s most severe penalties on juvenile offenders cannot proceed as though they were not children.’ ” Id. ¶ 18 (quoting Miller , 567 U.S. at 474). ¶ 17 Following our supreme court’s guidance in Buffer , we conclude that defendant’s 80

- year sentence in this case constitutes a de facto life sentence. See also People v. Harvey , 2019 IL App (1st) 153581, ¶ 10 (holding that, pursuant to Buffer , the defendant’s 52

- year se ntence was a de facto life sentence). ¶ 18 In so holding, w e recognize that defendant may be eligible for day

- for

- day credit, pursuant to which he may be eligible for release after 40 years

— on the dividing line between what the supreme court has defined as de facto life and not de facto life sentences. Although the parties disagree as to whether the supreme court has explicitly concluded that a sentence on the40- year dividing line should be considered a de facto , or not a de facto , life sentence, we need

no t make that determination here. ¶ 19 Defendant was not sent enced to 40 years’ imprisonment but was instead sentenced to 80 years’ impri sonment with the mere possibility of release after 40 years. Moreover, to serve a sentence of 40 years, he must receive every single day of good conduct credit for which he could be eligible . Defendant’s receipt of day

- for

- day credit is not guaranteed. See People ex rel. Colletti v. Pate , 31 Ill. 2d 354, 357 (1964) (“Good time, although a part of every sentence, is a conditional right which may be forfeited prior to the time a convict is entitled to discharge, having served his maximum sentence less good

- time credits

. ”); People ex rel. Braver v. Washington , 311 Ill. App. 3d 179, 18 7- 89 (1999) (“The award of good

- conduct time and the decision to consider such an award are discretionary by statute; the Director of IDOC is not required to grant the time or even consider it, absent a clear duty to act ***. ”). The IDOC “has the right to revoke good

- conduct credits for disciplinary infractions, [and] an inmate’s right to receive the credits is contingent upon his good behavior while in prison.” Johnson v. Department of Corrections , 368 Ill. App. 3d 147, 152 (2006); see also People v. Lindsey , 319 Ill. App. 3d 586, 593 (2001) (the purpose of credit provisions is to “provide felonious inmates with incentive to conform their behavior to prison rules”). The IDOC “ultimately has discretion as to whether defendant will be awarded any credit , ” and t he trial court has no control over the man ner in which a defendant’s good conduct credit is earned or lost. (Internal quotation marks omitted.) People v. Castano , 392 Ill. App. 3d 956, 960 (2009). Accordingly, we conclude that defendant’s
80- year sentence, for which he may receive day

- for -day credit, constitutes a de facto life

sentence.¶ 20 Our conclusion remains the same despite t he State ’s reference to defenda nt’s IDOC inmate status report, which indicates that his projected release date was shortened by 15 days to August 16, 2035, making his projected sentence approximately two weeks under 40 years. See
Internet Inmate Status , Ill. Dep’t of Corr., https:// www.idoc.state.il.us/subsections/ search / inms_print.asp?idoc=K67561 (last visited July 2 4 , 2019) [ htt ps://perma.cc/3R2Z

- 9UC6 ]. As stated above, our review of defendant’s IDOC status report one month prior, indicated that his projected re lease date was August 31, 2035. It is unclear to this court what circumstances supported the 15- day adjustment in defendant’s projected release date, and the State has provided no explanation for the change. Nonetheless, the change in defendant’s projected release date only illustrates the uncertainty and indefiniteness in defendant’s sentence based on the IDOC’s authority to award or revoke sentencing credit. See People ex rel. Colletti , 31 Ill. 2d at 357; People ex rel. Braver , 311 Ill. App. 3d at 187-89. In these circumstances, and in the interests of justice, we conclude that defendant’s sentence constitutes a de facto life sentence. See People v. Taylor , 221 Ill. 2d 157, 162 (2006) (“criminal or penal statutes are to ‘be strictly construed in favor of the accused, and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute ’ ” (quoting People v. Laubscher , 183 Ill. 2d 330, 337 (1998))) ; People v. Gutman , 2011 IL 110338, ¶ 12 ( “Pursuant to the rule of lenity, ambiguous criminal statutes will generall y be construed in the defendant’s favor. ”). ¶ 21 We also conclude that the circuit court failed to consider the defendant’s youth and its attendant characteristics in imposing defendant’s sentence. The State conclusively asserts that the record establishes that the circuit court “considered *** defendant ’s age and its attendant circumstances,” but the State provides no support for such a conclusion.¶ 22 As our supreme court has stated, a juvenile def endant may be sentenced to life or de facto life imprisonment, but before doing so, the trial court must “dete rmine [ ] that the defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. The court may make that decision only after considering the defendant’s youth and its atten dant characteristics. Those characteristics include, but are not limited to, the following factors: (1) the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreci ate risks and consequences; (2) the juvenile defendant’s family and home environment; (3) the juvenile defendant’s degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Holman , 2017 IL 120655, ¶ 46.
S ee also Buffer , 2019 IL 122327, ¶ 19. ¶ 23 The State points out that the circuit court “reviewed the [ PSI ] and considered evidence in aggravation and mitigation

— including that defendant was 17 years

- old at the time of the offense.” However, we find nothing in the record to show that the circuit court specifically considered defendant’s youth and its attendant characteristics, specifically those factors articulated by our supreme court in Holman

. See People v. Morris , 2017 IL App (1st) 141117, ¶ 32 (concluding that circuit court’s consideration of the PSI was not “the equivalent to a fullconsideration of those special characteristics contained within the PSI report” particularly where the court did not “weigh heavily defendant’s opportunity for rehabilitation”). ¶ 24 Following Bu ffer , we conclude that the court’s mere awareness of a defendant’s age and consideration of a PSI does not provide evidence that the circuit court specifically considered defendant’s youth and its attendant characteristics. See also Harvey , 2019 IL App (1st) 153581, ¶ 13. Therefore, we must conclude that defendant’s sentence violates the eighth amendment, and we vacate that sentence as unconstitutional. Buffer , 2019 IL 122327, ¶ 42. ¶ 25 In so holding, we also note that the proper remedy in such circumstances is to remand this matter for a new sentencing hearing. See id. ¶¶ 44- 47 (“Based on the particular issue raised in this appeal and in the interests of judicial economy, *** the proper remedy is to vacate defendant’s sentence and to remand for a new sentencing hearing.”)

. Further, defendant shall be entitled on remand to be sentenced under the scheme prescribed by section 5-4.5-105 of the Code (730 ILCS 5/5-4.5-105 (West 2016)). Buffer , 2019 IL 122327, ¶ 47. ¶ 26 In light of our holding, we need not reach defendant’s alternative argument

— that his sentence violates the Illinois proportionate penalties clause. W e therefore reverse the judgment of the trial court, and remand the case for further proceedings consistent with this opinion.
M andate to issue instan ter

. ¶ 27 Reversed and remanded

.Cite as:

Decision Under Review:

Attorneys for Appellant:

Attorneys for Appellee: No. 1-17-0308

People v. Peacock , 2019 IL App (1st) 170308
Appeal from the Circuit Court of Cook County, No. 95- CR

26400(01); the Hon. Frank Zelezinski, Judge, presiding.

James E. Chadd, Patricia Mysza, and Manuela Hernandez , of State Appellate Defender’s Office, of Chicago, for appe llant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Miles J. Keleher , Assistant State’s Attorneys, of counsel), for the People.