2020 IL App (1st) 191907 

SIXTH DIVISION 

November 30, 2020 

No. 1-19-1907 

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. ) 01 CR 17493 

) 

BENARD McKINLEY, ) Honorable Kenneth J. Wadas, 

) Judge Presiding. 

Defendant-Appellant. ) 

JUSTICE CONNORS delivered the judgment of the court, with opinion. 

Presiding Justice Mikva and Justice Griffin concurred in the judgment and opinion. 

OPINION 

¶ 1 Defendant, Benard McKinley,

1 was convicted when he was 16 years old of first degree 

murder and sentenced to 100 years in prison. Following an unsuccessful direct appeal and 

postconviction proceedings, defendant filed a habeas petition in the United States District Court 

for the Northern District of Illinois. The Northern District denied the petition, and defendant 

appealed to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit 

reversed based on the United States Supreme Court case of Miller v. Alabama, 567 U.S. 460 

(2012). McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016). The Seventh Circuit remanded with 

instructions to the district court to stay the habeas proceedings and allow defendant to pursue 

1We note that while defendant spells his name “Benard,” certain documents in the record and on 

appeal spell it as “Bernard.” 
No. 1-19-1907 

resentencing in the state trial court. Defendant then filed a successive petition for postconviction 

relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)), 

which the trial court granted. After a resentencing hearing, defendant was sentenced to 39 years 

in prison for one count of first degree murder. Defendant filed a motion to reconsider, which the 

trial court denied. Defendant now appeals, arguing that the trial court abused its discretion by 

failing to properly consider his youth and its attendant circumstances in conflict with Miller. For 

the reasons that follow, we reduce defendant’s sentence to 25 years in prison. 

¶ 2 I. BACKGROUND 

¶ 3 A. Trial 

¶ 4 The following evidence was presented at defendant’s trial. On June 24, 2001, 16-year-old 

defendant shot and killed a 23-year-old man named Abdo Serna-Ibarra, as he tried to enter a 

Chicago park. One of defendant’s friends, a 15-year-old named Edward Chavera, may have 

handed defendant the gun. See McKinley, 809 F.3d at 909. Chavera then told defendant to shoot 

Serna-Ibarra. Defendant obeyed, shooting the victim in the back. When Serna-Ibarra turned 

around with his hands raised, defendant shot him several more times, killing him. 

¶ 5 The jury found defendant guilty of first degree murder and personally discharging a 

firearm that caused the death of another person. The trial court sentenced defendant to 50 years’ 

imprisonment for the murder and a consecutive term of 50 years’ imprisonment for the firearm 

enhancement, for a total of 100 years in prison. 

¶ 6 B. Direct Appeal 

¶ 7 On direct appeal, defendant argued that (1) the trial court abused its discretion when it 

responded to a jury question and provided the jury with certain transcripts, (2) the identification 

evidence was vague and uncertain, and (3) the sentence imposed was excessive. This court 

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affirmed defendant’s conviction and sentence. People v. McKinley, No. 1-04-2759 (2007) 

(unpublished order under Illinois Supreme Court Rule 23). 

¶ 8 C. Postconviction Petitions 

¶ 9 On June 2, 2008, defendant filed a pro se postconviction petition that contained 15 

arguments. The trial court found that the issues raised by defendant were frivolous and patently 

without merit. The postconviction petition was dismissed. That decision was affirmed on appeal. 

People v. McKinley, No. 1-08-2790 (2010) (unpublished order under Illinois Supreme Court 

Rule 23). 

¶ 10 On November 15, 2010, defendant sought leave to file a successive postconviction 

petition, which was denied. This court affirmed the denial on November 13, 2012. People v. 

McKinley, No. 1-11-0513 (2012) (unpublished order under Illinois Supreme Court Rule 23). 

¶ 11 D. Habeas Petition—Northern District of Illinois 

¶ 12 On June 9, 2011, defendant filed a writ of habeas corpus in federal court—the Northern 

District of Illinois—partly on the ground that his sentence violated the United States 

Constitution. The petition was initially stayed pending the outcome of the appeal of his 

successive postconviction petition. On April 18, 2013, defendant moved to lift the stay, 

representing that he had exhausted all available appeals of the denial of his successive 

postconviction petition in state court. The court lifted the stay and denied the habeas petition on 

March 31, 2014. McKinley v. Harrington, No. 11 C 04190, 2014 WL 1292798 (N.D. Ill. Mar. 

31, 2014). Defendant appealed to the Seventh Circuit Court of Appeals. 

¶ 13 E. Seventh Circuit Court of Appeals 

¶ 14 The Seventh Circuit Court of Appeals reversed. McKinley, 809 F.3d 908. Judge Posner 

noted in the opinion that “[w]ith no good-time credit or other chance of early release permitted to 

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persons sentenced for first-degree murder in Illinois, [defendant] will be imprisoned for the full 

100 years unless, of course, he dies before the age of 116.” Id. at 909. The court further stated 

that “[h]is accomplice, Chavera, pleaded guilty to second-degree murder and was sentenced to 

17.5 years in prison.” Id. 

¶ 15 The court stated that to be allowed to argue in federal court that his sentence violated the 

federal constitution, defendant “had to have pressed it in the state judicial system first.” Id. This 

requirement was partly designed to “diminish the burden on the federal courts of post-conviction 

proceedings by state prisoners.” Id. The court stated that while defendant had made claims about 

the constitutionality of his sentence in state court, he “had failed to argue to the state courts on 

direct appeal that his prison sentence violated the cruel and unusual punishments clause of the 

Eighth Amendment, which the Supreme Court has made applicable to the states by interpretation 

of the due process clause of the Fourteenth Amendment.” Id. at 910. The Seventh Circuit found 

that by failing to alert the state court to the possible presence of a federal claim, defendant 

forfeited the right to seek federal habeas corpus on the ground that his sentence violated the 

eighth amendment, “unless he can show that his failure to raise the claim in state court had been 

excusable.” Id. 

¶ 16 The court noted that defendant argued it was excusable based on the United States 

Supreme Court’s 2012 decision of Miller, which held that the eighth amendment forbids a 

sentencing scheme that mandates life in prison without possibility of parole for juvenile 

offenders. Id. The court noted that Miller stated when sentencing a minor, “we require [the 

sentencing judge] to take into account how children are different, and how those differences 

counsel against irrevocably sentencing them to a lifetime in prison.” (Internal quotation marks 

omitted.) Id. 

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¶ 17 The Seventh Circuit found that the “sentencing judge in this case didn’t do that. He said 

nothing to indicate that he considered the defendant’s youth to have the slightest relevance to 

deciding how long to make the sentence.” Id. Rather, the judge noted “ ‘multiple factors in 

aggravation apply’ ” and that the 100-year sentence was “ ‘necessary to deter others from 

committing the same crime.’ ” Id. at 911. The court stated that the trial court should have 

considered whether, in a situation of excitement, defendant had the maturity to consider whether 

to obey his confederate’s order or was prevented by the circumstances from making a rational 

decision about whether to obey. Id. at 911-12. 

¶ 18 The court noted that defendant had “no opportunity to invoke Miller either in his direct 

appeal or in any of his state post-conviction proceedings,” so “the Illinois state courts have had 

no opportunity to consider the bearing of Miller on the appropriateness of reconsidering 

[defendant’s] sentence.” Id. at 913. The court stated that “Miller speaks to the propriety of a life 

sentence for juveniles, and an Illinois court might well believe as do we that the sentencing judge 

in this case utterly failed to consider that ‘children are different.’ ” Id. The court went on to state: 

“Murder is of course one of the most serious crimes, but murders vary in 

their gravity and in the information they reveal concerning the likelihood of 

recidivism by the murderer. In the case of a 16-year-old kid handed a gun by 

another kid and told to shoot a designated person with it, it is difficult to predict 

the likelihood of recidivism upon his release from prison or to assess the deterrent 

effect of imposing a long sentence on him, without additional information. A 

competent judicial analysis would require expert psychological analysis of the 

murderer and also of his milieu. Does he inhabit a community, a culture, in which 

murder is routine? Are other potential murderers likely to be warned off murder 

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No. 1-19-1907 

upon learning that a 16-year-old kid has been sentenced to life in prison, or are 

they more likely to think it a fluke? Is the length of a sentence a major factor in 

deterrence? Given that criminals tend to have high discount rates, meaning that 

they weight future events very lightly, does it matter greatly, so far as deterrence 

is concerned, whether a murderer such as [defendant] is sentenced to 20 years in 

prison or 100 years? And here is where Miller plays a role. It does not forbid, but 

it expresses great skepticism concerning, life sentences for juvenile murderers.” 

Id. at 913-14. 

¶ 19 Finally, the court stated that the trial court had treated defendant “as if he were not 16 but 

26 and as such obviously deserving of effectively a life sentence.” Id. at 914. The Seventh 

Circuit vacated the judgment of the district court and remanded the case with instructions to stay 

further consideration of the habeas petition pending defendant’s filing of a successive 

postconviction petition in state court seeking resentencing on the basis of Miller and the 

“concerns expressed in this opinion regarding the sentencing proceeding that resulted in a 100-

year prison sentence for a 16-year-old.” Id. 

¶ 20 F. Successive Postconviction Petition 

¶ 21 Defendant then requested leave to file a successive postconviction petition in the circuit 

court based on Miller. Defendant argued that his 100-year sentence was a de facto life sentence 

and therefore unconstitutional. The circuit court granted petitioner leave to file his successive 

postconviction petition and found that petitioner’s sentence was unconstitutional. It ordered a 

new sentencing hearing. 

¶ 22 G. Resentencing Hearing 

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¶ 23 The sentencing hearing took place over the course of two days, April 12, 2019, and June 

3, 2019, before the same trial judge that originally sentenced him to 100 years in prison. The first 

witness in mitigation was Dr. James Garbarino, a professor of psychology at Loyola University 

Chicago, who testified as an expert in the field of developmental psychology. Dr. Garbarino 

evaluated defendant and reviewed Department of Corrections reports, various certificates of 

achievement, school records, the presentencing investigation (PSI), and anything else available 

to him about defendant’s life. 

¶ 24 Dr. Garbarino testified that normal teenagers have difficulties in executive function, 

“which is good decision making.” He stated that chronic trauma, where there are repeated 

incidents, tends to reduce an adolescent’s “future orientation.” In Dr. Garbarino’s opinion, 

defendant experienced chronic trauma growing up in both his family and community. Defendant 

had witnessed a shooting, he had friends who were killed or injured growing up, he was rejected 

by his father, at some point he was rejected by his mother in favor of a man, and he was bullied. 

Defendant was involved with gangs, which Dr. Garbarino testified was very common with 

adolescents that did not have a support system at home. He stated that the presence of an intact 

family, or a supportive family, is “often seen as a buffer to gang recruitment and gang 

membership.” 

¶ 25 Dr. Garbarino stated that the susceptibility to peer pressure peaks in adolescence 

“maybe” starting at 12 years old. It was Dr. Garbarino’s opinion that defendant was particularly 

susceptible to peer pressure given his upbringing. Defendant’s mother told defendant that she did 

not want him in her life and turned him over to his grandmother to be raised. 

¶ 26 Dr. Garbarino testified that the likelihood was “very high” that defendant would avoid 

future criminal, antisocial, or violent behavior. Defendant demonstrated an intelligent, active 

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mind and was engaged in a “massive” program of education and learning. He had been able to 

function within the academic programs in prison, as well as a college program offered by 

Northwestern University (Northwestern) that had a very selective admissions process. 

¶ 27 Dr. Garbarino stated that human brains do not mature until about 25 years old. 

Educational experiences can change adult brains. They change thinking patterns, cognitive 

structures, and the sophistication of analysis. Dr. Garbarino did not see any evidence of 

deficiency in defendant’s decision-making or executive function. Defendant had the ability to 

maintain a coherent, prosocial posture even in the difficult environment of prison. Dr. Garbarino 

spoke highly of defendant’s ability to manage his educational activities, accumulate certificates 

of achievement, and complete training programs. He opined that when defendant talked about his 

perfect attendance in classes he said it would be “crazy” not to have perfect attendance, which 

Dr. Garbarino saw as “reflecting a mature mind and bodes very well for his future when and if 

released because there is certainly no social purpose served by continuing to incarcerate him 

when he has achieved this level of sophisticated rehabilitation.” 

¶ 28 Nelson Holman, a correctional officer at Stateville Correction Center (Stateville) testified 

that he had been working there for 24 years and interacted with defendant on a daily basis when 

he was assigned to work in defendant’s cell house. Holman testified that defendant was 

cooperative and compliant. 

¶ 29 Andrew Fox, a correctional sergeant at Stateville testified that he had been working there 

for 20 years and had recently been assigned to work in the same cell house as defendant. He had 

worked in that cell house for a little over a year and a half. Defendant was one of the porters of 

the cell house, so he interacted with defendant every day. To be assigned the position of porter, 

an inmate must put in a request through the placement officer, and internal affairs investigates 

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and checks the inmate’s background. Inmates typically stay on as porters for 60 to 90 days. 

Defendant was a porter in his cell house for the duration of Fox’s time at the cell house, which 

was rare. Fox had put a request in for defendant to stay on after the 60 to 90 days as porter. Fox 

described defendant as quiet, reserved, and “pretty much to himself.” Defendant always tried to 

walk away from confrontations. Other inmates asked defendant for legal advice because 

defendant’s previous job had been a law clerk. Fox never had any issues with defendant and 

never had to write him up for disciplinary issues. 

¶ 30 Jennifer Lackey, a professor of law at Northwestern and the director of the Northwestern 

Prison Education Program, testified that she had been a professor at Northwestern for 13 years. 

The Northwestern Prison Education Program is the only degree-granting program in the state of 

Illinois offering a full liberal arts curriculum. Students at Statevillle are enrolled as Northwestern 

students. All of the classes are offered by Northwestern faculty members at Stateville, and the 

program has a “very rigorous admissions process.” There is an admissions committee made up of 

one associate dean and two faculty members, and they invite 20 students per year into the 

program. 

¶ 31 Professor Lackey founded the Stateville prison program because there are other states 

that have very successful prison education programs. She stated that prison education has been 

shown “over and over again” that it is one of the most positive interventions in the criminal 

justice system. National recidivism rates are at about 76.6% “at the five-year mark.” Students 

who graduate in prison with a bachelor’s degree have a 5.6% recidivism rate, and with a master’s 

degree, the rate goes down to 0%. Illinois was a state that did not have any postsecondary 

education programs that were degree-granting, so Lackey worked with Northwestern to start one. 

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¶ 32 Applications for the program were distributed in the prison, and the committee narrowed 

the pool of applicants to 40 students based on the submissions. They then held in-person 

interviews at the prison and invited the top 20 candidates to the program, one of them being 

defendant. The curriculum is a full liberal arts curriculum. Defendant is in class four days a 

week, for three hours a day. There are six or seven hours of homework each night. 

¶ 33 Professor Lackey testified that defendant was ranked third out of the pool of handwritten 

submissions they received from Stateville and was admitted into the program after his in-person 

interview. Lackey testified that she was currently teaching defendant and had previously taught 

him as well. She spends approximately three hours a week with him. He is a “quiet leader” in the 

classroom. He participates and is thoughtful in his remarks and interactions with other students. 

He defuses disagreements rather than inflames them. He is self-motivated and determined. His 

attendance is impeccable. He comes to class prepared. He is one of the most driven and focused 

students “in the cohort.” He turns in “A level” work, which is graded on the same scale as the 

Northwestern students on campus. 

¶ 34 Professor Lackey testified that if defendant were to be released, it was her opinion that he 

would do “exceptionally well.” Part of the program is “to work on reentry at the other end of 

students graduating from the program.” One of defendant’s goals is to attend law school, and 

Professor Lackey stated, “I think that is an extremely realistic goal.” When asked if Professor 

Lackey had any concerns about his character or temperament, she stated, “I have no concerns 

whatsoever.” 

¶ 35 Dr. Christina Rivera testified that she teaches political science at DePaul University 

(DePaul) and is the director of the Black Diaspora. She met defendant when she started teaching 

at Stateville in 2018, as part of DePaul’s Inside Out Prison Exchange Program. Stateville 

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applicants submitted a “blind” written application, without any identifying information. 

Defendant was selected to participate based on his submission. Dr. Rivera taught “Law and 

Politics,” which was an entry course for students interested in law or law school. She grades the 

students at Stateville in the exact same manner as she grades her students on campus. 

¶ 36 Dr. Rivera testified that there were 45 applicants the year defendant applied. She 

narrowed it down to 15, and the chaplain selected the final 11 students. The applicants must have 

completed a GED and not have any “tickets” from inside the jail. Defendant was an excellent, 

hard-working student. He was quiet in class but interacted well with other students in smallgroup discussions. He was an encouraging classmate. It was clear that he had always done the 

reading and had thought about the reading. 

¶ 37 Dr. Rivera stated that defendant’s small group project in her class dealt with LBGTQ 

rights, particularly the rights of transgender women in the Department of Corrections. The 

project was to structure a legislative proposal that the students would hypothetically give to 

legislatures. The end result of their legislative proposal was “quite comprehensive.” Dr. Rivera 

noted that defendant was part of the “State Build a Debate” team. The debate took place in 

March 2018, where they debated the issue in front of 20 or 30 state legislators and some 

members of the media. At the end of the debate they were given a chance to speak with the 

legislators in the audience. From what Dr. Rivera understood, one of the members of the state 

legislature subsequently met with the students and presented their bill in the last session. 

¶ 38 Dr. Rivera stated that she started a law policy “think tank” so that members of the class, 

both DePaul and Stateville members, could continue to get together and discuss materials from 

the class that they had rushed through in 10 weeks. Defendant was a consistent member of the 

think tank up until he began his classes through Northwestern. 

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¶ 39 Several exhibits were attached to defendant’s sentencing memorandum. These included a 

copy of his GED that he received in 2003 and several educational certificates. Those certificates 

included behavior management (2001), parenting without violence (2001-02), learning skills for 

life (2009), handling suppression (2010), conditions of life (2010), successful parenting skills 

(2011), personal integrity (2011), master craftsman for installation (2016), vinyl decking and 

railing education program (2016-18), composite railing education program (2016-18), vinyl 

siding and polymer shake education program (2016-18), CertaWrap master craftsman (2016), 

Bufftech Fence education program (2016-18), restoration millwork education program (2016-

18), CertainTeed shingle quality specialist (2016-18), and a stress management course (2017). 

¶ 40 Defendant’s Diploma of Legal Assistant/Paralegal from Blackstone Career Institute, 

which was issued in June 2011, was included in the exhibits. Defendant’s transcript from 

Blackstone Career Institute showed that he completed over 900 hours of classes with an average 

grade of 94.6% overall. 

¶ 41 A certificate for DePaul’s Inside Out Prison Exchange Program was attached, showing 

that he completed the program on June 8, 2018. Professor Rivera submitted a letter describing 

the workload as daunting. She described defendant’s work as “top-notch” and described him as 

“a mature, reflective person who is motivated to help at-risk youth avoid making tragic mistakes, 

and instead recognize their worth and value [to] their community.” 

¶ 42 A certificate for completing a summer workshop in 2018 through Northeastern Illinois 

University’s “The Prison and Neighborhood Arts Project” was also attached. An instructor in the 

program, Professor Lopez, submitted a letter stating that he was impressed by defendant’s 

“preparedness” and his “ability to work with fellow classmates in a constructive manner.” 

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Defendant was an avid reader and a “positive and calming influence.” He was committed to 

completing the course and served as a model to other students. 

¶ 43 Northwestern Professor Mary Patillo wrote a letter stating that defendant distinguished 

himself in class by his preparedness and improvement and for his gentle demeanor. He 

responded well to feedback and learned from his mistakes in class. Defendant had “much to 

offer.” 

¶ 44 Defendant’s work history was detailed showing that he worked as a law clerk in the law 

library for six months and was a porter in Unit E cellhouse for a year and a half. 

¶ 45 Defendant received four certificates of excellence in 2014 for his participation in a 

program called “Incarcerated Voices,” which was a radio program aimed at educating the 

community about prison life. 

¶ 46 Defense counsel noted that defendant’s grandmother was in court and had submitted a 

letter to the court indicating that she would provide a place for him to live when defendant was 

released. She was in a good neighborhood and would make sure he got to any probation officer 

appointments, work, or school. 

¶ 47 Finally, defense counsel stated, “we urge that 25 years is the appropriate sentence. 

Bearing in mind that [defendant]’s crime occurred after the truth-in-sentencing statute. So 

whatever sentence is imposed will be served at one hundred percent. We are urging the court to 

total 25 actual years.” Defense counsel noted that, since Miller, there had been 46 cases where a 

juvenile had been resentenced based on the Miller factors in Cook County. Most of those 

offenders were 17, and “quite a few” were 16 years old like defendant. Almost all the cases were 

for crimes committed prior to truth-in-sentencing so they would serve 50 % of their sentences. 

Forty out of forty-six of those cases involve multiple victims murdered. The average of all those 

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sentences were 31 years, and the median was 30 years. Taking away those that involved more 

than one victim, there were only six offenders on the chart. Of the six, one received 20 years, 

three received 25-year sentences, and one received 30 years. The average was 25.2 years for 

those juveniles resentenced after Miller who committed murder as a juvenile. 

¶ 48 The State then argued in aggravation. It submitted a letter written by the victim’s aunt, 

Maribel Ibarra, stating that her life had changed dramatically since defendant killed “the only 

family member that I have here in the United States.” The victim had come to Chicago to work 

and support his family in Mexico. When he was killed, Ibarra had to break the news to his 

mother in Mexico and then take his body back to Mexico to be buried. She stated, “[s]omeone 

who kills without mercy will never change; therefore, he should receive no mercy.” 

¶ 49 The State noted that “the maximum sentence that you can give this defendant is 40 years 

in the Illinois Department of Corrections. I would submit that this is not a case, even considering 

all the aggravation and all of the mitigation, that is a minimum sentence.” The State asked the 

court “to sentence this defendant to a substantial period of time above the minimum in the 

Illinois Department of Corrections.” 

¶ 50 Defendant then addressed the court. He apologized to the victim’s family stating, “Every 

day, I regret doing it *** I shouldn’t have listened to what was told to me.” He stated that he 

could not take it back, but he could show that the mistake will never happen again. He never 

communicated with the gang he was in since the offense and “suffered some backlash” for it. He 

stated that after he received his 100-year sentence, he began bettering himself. He wants to help 

younger people walking down the same path he did and steer them from that because he 

understands how it destroys lives. He then stated, “I don’t want to take the court’s time too 

much. But I also want to apologize to you. 18 years ago, we were standing in this same 

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courtroom or downstairs, and you asked me a question after you had sentenced me and I ignored 

you. That was a sign of immaturity and I apologize and I am sorry for that.” He continued, “I ask 

you to have mercy on me and give me at least a chance to be a productive *** person within my 

community.” 

¶ 51 The trial judge then spoke. He stated that Dr. Garbarino was “at best a poor witness with 

very little credibility. I don’t give his testimony a lot of weight at all.” The trial judge stated that 

“I think expert witnesses in murder cases should read the police reports so they understand what 

the facts are in the case.” The trial judge stated that when the State asked Dr. Garbarino if he had 

given defendant an IQ test, Dr. Garbarino responded that defendant was in college, “[l]ike with a 

certain amount of disdain and disrespect to the lawyer that was asking the question.” 

¶ 52 The trial judge continued, “[t]here were discussions about like diagnosis like conduct 

disorder. And I agree with [the State] that [Dr. Garbarino] was trying to fashion justification for 

why [defendant]’s brain was not fully developed.” He said, “There is no question that gang, peer 

pressure, his [sic] irrelevant factor to consider when trying to figure out what was in 

[defendant]’s brain at that time when he chose to be the original aggressor.” The trial judge 

stated that “various people have mischaracterized the evidence in this case as gang related. There 

was one gang and one gang only. That’s [defendant]’s gang.” He continued: 

“One of the key facts was and we hear this phrase a lot, it’s come up a lot in the 

last few years, hands up. Don’t shoot. All lives matter. [Defendant] didn’t give 

that any consideration. Was his actions which resulted in murder heartless and 

merciless? I say, yes. When a man puts his hands up in the air after being shot and 

doesn’t want any more and [defendant] unloaded on him, fired multiple shots into 

that victim, that is a heartless and merciless act. 

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And coupled with the fact that [defendant] and his gang waited in ambush 

for these individuals that were going to play soccer after they bought the soccer 

ball and came out so there was plenty of opportunity to walk away. [Defendant] 

could not have fired any more bullets when the victim raised his hand in 

surrender. 

The facts in this case warrant a harsh punishment. A 20 year sentence or 

even a 25 year sentence would be insufficient for this type of factual pattern, gang 

related shooting on the streets of Chicago. Unarmed victims trying to play soccer. 

When I consider all the factors in aggravation and mitigation, I do find 

that there are a number of factors that weigh in the defendant’s favor. He does 

have rehabilitative potential. There is no question about it. 

The evidence from the various teachers and individuals that have been 

involved with his education have all testified that he does have that pattern. 

In addition his conduct in the penitentiary has been admirable. He’s not 

gotten himself into problems and is recognized for some leadership traits within 

the Illinois Department of Corrections. 

I have considered his youth, his recklessness, the suggestibility, the 

potential for rehabilitation, there’s evidence of immaturity, the failure to 

appreciate the consequences, I am not so sure about that. 

His family environment had a lot to be desired. No question about that. 

Nevertheless, he was in a loving home of a family member. He found a different 

life on the streets and resulted in tragedy, not only for the victim in the case but 

for the defendant. 

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In reviewing all those factors in aggravation, I do cite the factor. I don’t 

give it any greater weight than any other factor in aggravation and mitigation and 

have considered all of those new factors for someone who is 16 years old but the 

sentence must deter future criminal conduct. 

And defendant’s criminal conduct neither caused or threatened physical 

harm to another. That, of course, is not applicable as a factor in mitigation. Not 

only that, by multiple firing in a park in the broad daylight in the afternoon hours 

with other people around, serious physical harm could have happened to other 

people that were in the park at that time. 

The defendant did not contemplate that his criminal conduct would cause 

or threaten serious physical harm to another. 

Nothing in Dr. Garbarino’s testimony indicated—would indicate to me 

that he did not have the ability to contemplate that pulling a handgun and firing it 

in a crowded park in the afternoon was not the type of conduct that would cause 

or threaten serious physical harm to another. 

The defendant acted under a strong provocation. Not applicable is the 

factor in mitigation. There were grounds to excuse or justify the defendant’s 

criminal conduct, though failing to establish a defense. There was some evidence 

of some fist-to-cuff going on beforehand, a fistfight. It was the defendant that 

brought the gun to the fistfight. 

The defendant was only 16 years old. The gun made him older. The 

defendant’s criminal conduct was induced or facilitated by someone other than 

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the defendant. No. He was part of a pack. Part of the gang. They moved that way 

and they get strength from each other when they act in that fashion. 

*** The defendant did not have a history of prior delinquency or criminal 

activity. The defendant’s criminal conduct was a result of circumstances unlikely 

to recur. 

I believe based on the defendant’s rehabilitative potential that this is a 

possibility. The character and attitudes of the defendant indicate that he is 

unlikely to commit another crime. I would give points or credits on that factor in 

mitigation. 

I have discussed the factors in aggravation and I have analyzed what the 

appropriate sentence should be. I have listened to the defense make an argument 

and considered these other juvenile sentencing outcomes, the Miller application in 

this case and all the implications that arise from that. 

The fact that the Illinois Supreme Court has now made the determination 

that 40 years is the equivalent of—well, the term now is virtual life, I believe. I 

don’t believe that—and the defense was emphatic in that, in that idea that a 40 

year sentence would be a life sentence for defendant. 

I don’t believe it is a life sentence for the defendant. I think the defendant 

was entitled to more time in the penitentiary than even a 40-year sentence. 

But nevertheless, on Count 5, I will sentence the defendant to 39 years in 

the Illinois Department of Corrections, with three years of mandatory supervised 

release.” 

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¶ 53 Defendant filed a motion to reconsider his sentence, which was denied. Defendant now 

appeals. 

¶ 54 II. ANALYSIS 

¶ 55 On appeal, defendant argues that the trial court abused its discretion in sentencing 

defendant to 39 years in prison because it failed to correctly consider defendant’s youth and its 

attendant circumstances, as well as defendant’s demonstrated rehabilitation, in sentencing. 

¶ 56 The eighth amendment to the United States Constitution prohibits “cruel and unusual 

punishment” (U.S. Const., amend. VIII) and applies to the states through the fourteenth 

amendment. People v. Buffer, 2019 IL 122327, ¶ 15. The Supreme Court stated in Miller that the 

“Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees individuals the 

right not to be subjected to excessive sanctions.’ ” Miller, 567 U.S. at 469 (quoting Roper v. 

Simmons, 543 U.S. 551, 560 (2005)). The eighth amendment’s ban of excessive punishment 

flows from the basic precept that criminal punishment should be graduated and proportioned 

both to the offender and the offense. Id. Our supreme court has stated, “The United States 

Supreme Court has repeatedly instructed courts to look beyond history to ‘the evolving standards 

of decency that mark the progress of a maturing society’ [citation] to determine whether a 

punishment is so disproportionate as to be cruel and unusual.” Buffer, 2019 IL 122327, ¶ 15 

(quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). 

¶ 57 The Supreme Court in Miller established that “children are constitutionally different from 

adults for purposes of sentencing.” 567 U.S. at 471. Our supreme court, relying on Miller, 

summarized the three ways in which this was apparent: 

“First, juveniles lack maturity and a fully developed sense of responsibility, which 

leads to dangerous behavior that is careless, impulsive, and reckless. Second, 

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juveniles are more vulnerable to negative influences and outside pressures, they 

have limited control over their own environment, and they lack the ability to 

extricate themselves from crime-producing settings. Third, juveniles are more 

capable of change than adults, and their actions are less likely to be evidence of 

irretrievable depravity.” Buffer, 2019 IL 122327, ¶ 16 (citing Miller, 567 U.S. at 

471). 

¶ 58 As noted in Miller, the distinctive attributes of youth diminish the penological 

justifications for imposing the harshest sentences on juvenile offenders, even when they commit 

terrible crimes. Miller, 567 U.S. at 472. Because the rationale for retribution relates to an 

offender’s blameworthiness, the case for retribution is not as strong with a minor as an adult. Id. 

“Nor can deterrence do the work in this context, because ‘ “the same characteristics that render 

juveniles less culpable than adults” ’—their immaturity, recklessness, and impetuosity—make 

them less likely to consider potential punishment.” Id. (quoting Graham v. Florida, 560 U.S. 48, 

72 (2010), quoting Roper, 543 U.S. at 571). The Court noted that by removing youth from the 

balance in imposing life sentences without the possibility of parole, a sentencing authority was 

prohibited from assessing whether the law’s harshest term of imprisonment proportionately 

punished a juvenile offender. Id. at 474. The Court stated: 

“To recap: Mandatory life without parole for a juvenile precludes consideration of 

his chronological age and its hallmark features—among them, immaturity, 

impetuosity, and failure to appreciate risks and consequences. It prevents taking 

into account the family and home environment that surrounds him—and from 

which he cannot usually extricate himself—no matter how brutal or 

dysfunctional. It neglects the circumstances of the homicide offense, including the 

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extent of his participation in the conduct and the way familial and peer pressures 

may have affected him. Indeed, it ignores that he might have been charged and 

convicted of a lesser offense if not for incompetencies associated with youth—for 

example, his inability to deal with police officers or prosecutors (including on a 

plea agreement) or his incapacity to assist his own attorneys. [Citations]. And 

finally, this mandatory punishment disregards the possibility of rehabilitation 

even when the circumstances most suggest it.” Id. at 477-78. 

¶ 59 The Court in Miller declared that the eighth amendment therefore forbade a sentencing 

scheme that mandated life in prison without possibility of parole for juvenile offenders. “By 

making youth (and all that accompanies it) irrelevant to imposition of that harshest prison 

sentence, such a scheme poses too great a risk of disproportionate punishment.” Id. at 479. The 

Court declined to consider whether the “Eighth Amendment requires a categorical bar on life 

without parole for juveniles.” Id. However, the Court stated: 

“[G]iven all we have said *** about children’s diminished culpability and 

heightened capacity for change, we think appropriate occasions for sentencing 

juveniles to this harshest possible penalty will be uncommon. That is especially so 

because of the great difficulty *** of distinguishing at this early age between ‘the 

juvenile offender whose crime reflects unfortunate yet transient immaturity, and 

the rare juvenile offender whose crime reflects irreparable corruption.’ 

[Citations.] Although we do not foreclose a sentencer’s ability to make that 

judgment in homicide cases, we require it to take into account how children are 

different, and how those differences counsel against irrevocably sentencing them 

to a lifetime in prison.” Id. at 479-80. 

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¶ 60 Eighth amendment jurisprudence continued to evolve, and in People v. Reyes, 2016 IL 

119271, our supreme court held: 

“A mandatory term-of-years sentence that cannot be served in one lifetime 

has the same practical effect on a juvenile defendant’s life as would an actual 

mandatory sentence of life without parole—in either situation, the juvenile will 

die in prison. Miller makes clear that a juvenile may not be sentenced to a 

mandatory, unsurvivable prison term without first considering in mitigation his 

youth, immaturity, and potential for rehabilitation. *** Accordingly, we hold that 

sentencing a juvenile offender to a mandatory term of years that is the functional 

equivalent of life without the possibility of parole constitutes cruel and unusual 

punishment in violation of the eighth amendment.” Id. ¶ 9. 

¶ 61 Our supreme court has since noted that 

“a juvenile defendant may be sentenced to life imprisonment without parole, but only if 

the trial court determines 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 attendant circumstances.” People v. Holman, 2017 IL 120655, ¶ 46. 

¶ 62 Subsequently, our supreme court in Buffer held that a de facto life sentence was 

equivalent to 40 years or more in prison when sentencing a juvenile. In Buffer, the defendant was 

found guilty of four counts of first degree murder and specifically that he personally discharged a 

firearm that caused the victim’s death. Buffer, 2019 IL 122327, ¶ 5. He was sentenced in July 

2010. At that time in Illinois, law prescribed a sentencing range of 20 to 60 years for first degree 

murder (730 ILCS 5/5-4.5-20(a) (West 2008)) and mandated a minimum 25-year additional 

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prison term for personally discharging a firearm that caused the victim’s death (id. § 5-8-

1(a)(1)(d)(iii)). Buffer, 2019 IL 122327, ¶ 5. The court merged the first degree murder counts and 

sentenced defendant to 25 years on the first degree murder conviction and 25 years for the 

mandatory firearm add-on, for an aggregate of 50 years, followed by 3 years of mandatory 

supervised release. Id. 

¶ 63 The State urged the court to decide when a prison sentence for a term of years imposed 

on a juvenile defendant is the functional equivalent of life without parole. Id. ¶ 29. The State 

contended that experience and common sense compelled the conclusion that a 50-year sentence 

for a juvenile offender was not unsurvivable and thus not prohibited for juvenile homicide 

offenders whose crimes reflect the transient immaturity of youth. Id. ¶ 30. 

¶ 64 Our supreme court noted that the nature, character, and extent of penalties for a particular 

criminal offense are matters for the legislature, which may prescribe definite terms of 

imprisonment or specific amounts as fines or fix the minimum and maximum limits thereof. Id. 

¶ 35. “We generally defer to the legislature in the sentencing arena because the legislature, 

institutionally, is better equipped to gauge the seriousness of various offenses and to fashion 

sentences accordingly.” Id. “Also, when statutes are enacted after judicial opinions are published, 

it must be presumed that the legislature acted with knowledge of the prevailing case law.” Id. 

¶ 65 The Buffer court noted that the General Assembly, since Miller, had determined that the 

specified first degree murders that would justify natural life imprisonment for adult offenders 

would warrant a mandatory minimum sentence of 40 years for juvenile offenders. Id. ¶ 39. “The 

legislature evidently believed that this 40-year floor for juvenile offenders who commit 

egregious crimes complies with the requirements of Miller.” Id. The court stated, “[i]n 

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determining 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.” Id. ¶ 40. 

¶ 66 That brings us to the case at bar. Defendant was sentenced in 2004 to 100 years in prison 

for a crime he committed when he was 16 years old. He received a new sentencing hearing in 

2019 in front of the same trial judge. At resentencing, the trial judge was tasked with considering 

the Miller factors when fashioning a sentence. Those factors are (1) the juvenile’s chronological 

age at the time of the offense and any evidence of his particular immaturity, impetuosity, and 

failure to appreciate risk and consequence; (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 ability to deal with police officers or prosecutors and his incapacity 

to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation. Miller, 

567 U.S. at 477-78. Considerations of these factors is consistent with section 5-4.5-105 of the 

Unified Code of Corrections, which now requires the trial court to consider factors taken from 

the Supreme Court’s list when sentencing a juvenile. 730 ILCS 5/5-4.5-105(a) (West 2016). 

Those factors are: 

“(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; 

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No. 1-19-1907 

(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; 

(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.” Id. 

¶ 67 Because section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2014)) entitles a 

defendant “to be sentenced under either the law in effect at the time the offense was committed 

or that in effect at the time of sentencing,” the proper remedy was to apply this new sentencing 

scheme at resentencing. By applying this new sentencing scheme, the circuit court had the 

discretion not to apply the firearm sentencing enhancement. 730 ILCS 5/5-4.5-105(b), (c) (West 

2016); Reyes, 2016 IL 119271, ¶ 4. 

¶ 68 Here, the resentencing hearing spanned two days and included five witnesses who 

testified on defendant’s behalf. Defendant also submitted several letters for the trial judge’s 

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consideration. After hearing all the evidence, the trial judge noted that he could sentence 

defendant to anywhere from 20 years up to just under 40 years in prison, as 40 years or over 

would amount to a de facto life sentence pursuant to Buffer. The trial court then resentenced 

defendant to 39 years in prison, with no possibility of parole, plus three years of mandatory 

supervised release. 

¶ 69 Defendant claims that the trial court abused its discretion at resentencing when it (1) 

incorrectly considered defendant’s youth after stating that the “gun made him older,” (2) failed to 

properly consider the role of peer pressure, and (3) failed to properly consider defendant’s 

demonstrated and well-documented rehabilitation. The State maintains that the trial court did not 

abuse its discretion where it considered all of the relevant factors, including defendant’s youth 

and attendant circumstances. 

¶ 70 A circuit court has “broad discretionary powers in imposing a sentence, and its 

sentencing decisions are entitled to great deference.” People v. Alexander, 239 Ill. 2d 205, 212 

(2010). We must give “substantial deference” to the circuit court’s sentencing decision “because 

the 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. Accordingly, we will not 

disturb the court’s sentencing decision absent an abuse of discretion. Id. 

¶ 71 One basis for reversing a sentence within statutory limits is where the sentence is greatly 

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

the offense. People v. Stacey, 193 Ill. 2d 203, 210 (2000). “[T]he phrase ‘excessive sentence’ ” 

“is reserved for a sentence within the statutory range but without regard for a particular 

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No. 1-19-1907 

defendant’s rehabilitative potential.” People v. Daly, 2014 IL App (4th) 140624, ¶ 25 (citing 

People v. Perruquet, 68 Ill. 2d 149, 154-55 (1977)). 

¶ 72 The Illinois Constitution provides that penalties are to 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; Perruquet, 68 Ill. 2d at 154-55. This constitutional 

mandate calls for balancing the retributive and rehabilitative purposes of punishment, and the 

process requires careful consideration of all factors in aggravation and mitigation. People v. 

Quintana, 332 Ill. App. 3d 96, 109 (2002). Applying these principles to the instant case, the trial 

court abused its discretion in sentencing defendant to a 39-year prison term because the sentence 

was imposed with little regard to defendant’s significant rehabilitation. 

¶ 73 Evidence of defendant’s rehabilitation was overwhelming. Defendant obtained his GED 

in prison on December 15, 2003. He received over 10 different educational certificates from 

prison ranging from 2001 to 2018. He obtained a diploma of legal assistant/paralegal from 

Blackstone Career Institute in June 2011, which required more than 900 hours of classes. He was 

admitted to DePaul’s Inside Out Prison Exchange Program, and his professor described him as 

hardworking and encouraging to other classmates. He participated in a summer workshop 

through Northeastern Illinois University’s “The Prison and Neighborhood Arts Project.” 

Professor Lopez stated that he was impressed by defendant’s “preparedness” and his “ability to 

work with fellow classmates in a constructive manner.” Defendant was a “positive and calming 

influence.” He was committed to completing the course and served as a model to other students. 

¶ 74 Defendant was recently admitted after a rigorous admissions process to Northwestern and 

expects to earn a BA while in prison through the Northwestern Prison Education Program. 

Professor Lackey described defendant as one of her most driven and self-motivated students and 

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that his attendance was “impeccable.” She testified that defendant’s goal was to attend law 

school, and she believed that was an extremely realistic goal. 

¶ 75 Beyond his impressive education credentials, defendant has been a model inmate. He has 

had zero tickets throughout his 17 plus years in prison. He worked in the law library as an 

offender law clerk for six months in 2017, and as a porter in Unit E cellhouse for a year and a 

half in 2017 and 2018. The correctional officers that testified described defendant as cooperative, 

compliant, quiet, reserved, and “pretty much to himself.” Defendant always walked away from 

confrontations, and he helped other inmates with their legal questions. 

¶ 76 Defendant has also found time to give back to his community while in prison. He 

participated in “Incarcerated Voices,” a radio program aimed at educating the community about 

prison life. He joined the initiative to reach young people and warn them away from gang 

activity. He received four certifications of excellence for participating in this program in 2014. 

¶ 77 And finally, defendant has shown remorse. He told Dr. Garbarino that on the day of the 

murder he “should have been thinking rather than me just reacting.” He apologized to the 

victim’s family at resentencing, stating, “Every day, I regret doing it.” He stated that he could not 

take what he did back, but he could show that the mistake would never happen again. He also 

apologized to the court. 

¶ 78 After hearing this testimony and reading the letters submitted on defendant’s behalf, the 

trial judge’s only comments on defendant’s rehabilitation were “he does have rehabilitative 

potential. There is no question about it.” He stated that defendant’s “conduct in the penitentiary 

had been admirable” and that defendant had not “gotten himself into problems and is recognized 

for some leadership traits within the Illinois Department of Corrections.” The trial judge’s brief, 

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general references to defendant’s rehabilitation indicate that the trial judge disregarded the extent 

of defendant’s rehabilitation and did not afford it adequate weight. 

¶ 79 As noted above, 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). This constitutional mandate calls for the 

balancing of the retributive and rehabilitative purposes of punishment. Quintana, 332 Ill. App. 

3d at 109. “A reasoned judgment as to the proper penalty to be imposed must therefore be based 

upon the particular circumstances of each individual case.” People v. Saldivar, 113 Ill. 2d 256, 

268 (1986). Looking at the circumstances in the case at bar, defendant is the epitome of an 

offender who has been restored to useful citizenship. His sentence, however, does not reflect this. 

¶ 80 While we recognize the seriousness of defendant’s offense in taking another human’s 

life, we also recognize that the Illinois legislature took the seriousness of the offense into account 

when fashioning the sentencing range for first degree murder. See People v. Sharpe, 216 Ill. 2d 

481, 487 (2005) (“the legislature is institutionally better equipped to gauge the seriousness of 

various offenses and to fashion sentences accordingly”). The sentencing range for a juvenile who 

commits first degree murder, and who is not irretrievably depraved (Holman, 2017 IL 120655, 

¶ 46), is 20 to 40 years in prison. The fact that the trial judge in this case sentenced defendant to 

one year shy of the maximum prison sentence he could give without the sentence amounting to a 

de facto life sentence, indicates that he failed to give proper weight to defendant’s extensive 

rehabilitation evidence. The trial judge, in recognizing that the Illinois Supreme Court’s 

determination that 40 years is the equivalent of a life sentence, stated, “I don’t believe that. I 

think the defendant was entitled to more time in the penitentiary than even a 40-year sentence.” 

The trial court’s comments suggest a predisposition to punish certain types of offenders more 

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harshly, and we have found that a trial judge “may not refuse to consider an alternative 

[sentence] simply because the defendant is in a class disfavored by the court.” People v. Jones, 

284 Ill. App. 3d 975, 980 (1996). 

¶ 81 We note that a few days before oral argument, the State made a motion to cite People v. 

Lusby, 2020 IL 124046, as additional authority. The State made the following assertion in its 

motion: “Logic dictates that if the de facto life sentence of 100 years’ [sic] imposed on the 

defendant in Lusby—who was also 16 years old at the time of his offense and who presented 

similar mitigation evidence—can pass constitutional muster, the instant petitioner’s sentence of 

39-years’ [sic] surely is capable of withstanding a constitutional challenge.” 

¶ 82 In response to the State’s reliance on this additional authority, we note that defendant is 

not arguing that his 39-year sentence is unconstitutional. Rather, he is arguing that the trial court 

abused its discretion in imposing the sentence because it was excessive in light of defendant’s 

extensive rehabilitation evidence, as well as other factors. 

¶ 83 Additionally, the Lusby court’s finding that a de facto life sentence of 130 years was 

proper was based on the fact that the trial court, after considering the defendant’s youth and 

attendant circumstances, found the murder to be “ ‘clearly a depraved act’ ” and found defendant 

to be incorrigible. Id. ¶¶ 35, 50. This finding of incorrigibility was made after hearing evidence 

that the defendant broke into a woman’s apartment, sexually assaulted her, cut her neck with a 

knife, and then shot her in the head. Id. ¶ 4. The defendant had an extensive criminal history 

before committing the sexual assault and murder at the age of 16. Id. ¶ 13. Since being 

incarcerated, he had attacked another inmate who suffered a broken nose and a broken orbital 

bone. Id. ¶ 15. 

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¶ 84 As stated above, our supreme court has noted several times that if the trial court 

determines that the defendant’s conduct showed irretrievable depravity, permanent 

incorrigibility, or irreparable corruption beyond the possibility of rehabilitation, it can impose a 

life sentence on a juvenile, as was done in the case of Lusby, as long as it has first considered the 

defendant’s youth and attendant circumstances. Holman, 2017 IL 120655, ¶ 46. However, in the 

case at bar, the trial court made no such finding of irretrievable depravity, permanent 

incorrigibility, or irreparable corruption beyond the possibility of rehabilitation, and such a 

finding would have been wholly unsupported by the record. Accordingly, the trial court in this 

case could not have sentenced defendant to 40 years or more in prison. 

¶ 85 And finally, the State argued in its motion that “Lusby instructs that a sentence is 

constitutional if the record demonstrates that the court received evidence relating to each of the 

Miller factors before imposing sentence.” Again, the constitutionality of defendant’s sentence is 

not disputed in this case. There is no question that the 39-year sentence imposed was within the 

sentencing range of 20 to 40 years. 

¶ 86 To the extent that the State is arguing that as long as the court heard evidence on each of 

the Miller factors before pronouncing a sentence, then there can be no abuse of discretion, we 

disagree. While the Lusby court found that the 130-year sentence for the defendant was 

appropriate due to the trial court’s consideration of the Miller factors and its finding of 

incorrigibility, it did not state that as long as a court hears evidence of a defendant’s youth and 

attendant circumstances, any sentence the court fashions within statutory limits will not be an 

abuse of discretion. We are not meant to merely be a rubber stamp for the sentencing decisions 

of the trial courts. See Daly, 2014 IL App (4th) 140624, ¶ 26. As stated above, a reviewing court 

may disturb a sentence within statutory limits if the sentence is greatly at variance with the spirt 

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and purpose of the law, or manifestly disproportionate to the nature of the offense. Stacey, 193 

Ill. 2d at 210. Accordingly, we find Lusby to have no bearing on our analysis in the case at bar. 

¶ 87 Here, the sentencing ruling also demonstrated that the trial judge did not properly weigh 

other relevant factors. The trial judge stated that peer pressure was an “irrelevant factor” to 

consider when trying to determine what was in “[defendant]’s brain when he chose to be the 

original aggressor.” He stated, “The defendant’s criminal conduct was induced or facilitated by 

someone other than defendant. No. He was part of a pack. Part of the gang. They moved that way 

and they get strength from each other when they act in that fashion.” 

¶ 88 In contrast to the trial court’s analysis, the role of peer pressure is clearly identified as a 

mitigating factor in the sentencing statute for juveniles. It states that when a sentencing judge is 

sentencing a person who committed a crime when that person was under the age of 18, the court 

shall consider “whether the person was subjected to outside pressure, including peer pressure, 

familial pressure, or negative influences.” 730 ILCS 5/5-4.5-105(a)(2) (West 2016). The 

influence of peers is to be considered in mitigation, not aggravation. See id. (“the court *** shall 

consider the following additional factors in mitigation in determining the appropriate sentence”). 

This is because the Supreme Court has specifically found that juveniles are more susceptible to 

negative influences and outside pressures, including peer pressure. See Miller, 567 U.S. at 471. 

They have limited control over their own environment and lack the ability to extricate 

themselves from horrific, crime-producing settings. Id. Here, however, the trial judge used the 

fact that defendant was influenced by his peers as a factor in aggravation, stating that being part 

of a pack or a gang gave defendant strength. This is especially egregious in light of the fact that 

defendant’s peer specifically instructed defendant to shoot the victim. 

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¶ 89 Further, the trial judge gave improper weight to the need to deter future criminal conduct, 

stating he had “considered all of those new factors for someone who is 16 years old but the 

sentence must deter future criminal conduct.” The United States Supreme Court has found that 

deterrence does not necessary apply to juvenile sentences. In People v. Morris, 2017 IL App 

(1st) 141117, ¶ 33, this court noted, relying on Montgomery v. Louisiana, 577 U.S. ___, ___, 136 

S. Ct. 718, 726 (2016), that “deterrence is diminished in juvenile sentencing because juveniles’ 

recklessness, immaturity, and impetuosity make them less likely to consider possible 

punishment.” 

¶ 90 Finally, the trial judge improperly considered defendant’s age as it applied to his offense. 

The trial judge noted that “defendant was only 16 years old. The gun made him older.” This 

statement is directly contrary to the holdings in Miller and its progeny, which note that juveniles 

lack maturity and have an underdeveloped sense of responsibility, leading to recklessness, 

impulsivity, and heedless risk-taking. Miller, 567 U.S. at 471. The fact that defendant used a gun 

certainly did not cancel out the characteristics that defined him as a juvenile. Rather, it lends 

support to the fact that defendant lacked maturity which led to recklessness and heedless risktaking. In fact, the Illinois Supreme Court in Buffer remanded the case for resentencing where a 

16-year-old had committed first degree murder with a firearm because the court failed to 

consider his youth and attendant circumstances when sentencing the defendant to 50 years in 

prison. 2019 IL 122327, ¶ 47. That defendant was resentenced to 25 years in prison on remand. 

That defendant used a gun does not relieve the trial court from considering defendant’s youth as 

a mitigating factor. The trial court’s comments in this case were improper and has no basis in 

law. 

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¶ 91 Accordingly, looking at the record in its entirety, we find that the trial court abused its 

discretion by disregarding evidence of defendant’s extensive rehabilitation and improperly 

considering certain sentencing factors during the resentencing hearing. Pursuant to Illinois 

Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967), this court is empowered to reduce sentences. 

Specifically, the rule states that on appeal, the reviewing court may “reduce the punishment 

imposed by the trial court.” Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967). Our supreme court has 

acknowledged that the rule itself “does not set forth the scope of this power or the circumstances 

under which it should be exercised.” Stacey, 193 Ill. 2d at 209. As noted above, however, one 

such example of when this power can be exercised is when, as is the case here, a sentence within 

the statutory range was excessive. Id. at 210. Depending on the surrounding circumstances, we 

can choose to impose a new sentence or remand the matter for resentencing by the trial court. 

See People v. Jones, 168 Ill. 2d 367, 378 (1995). While we recognize that a reviewing court’s 

power to reduce a sentence should be exercised cautiously and sparingly, we find that in this case 

it is appropriate for us to impose a new sentence rather than exhaust additional judicial resources 

that would be expended by ordering a new sentencing hearing. Saldivar, 113 Ill. 2d at 268; 

People v. O’Neal, 125 Ill. 2d 291, 300 (1988). Accordingly, we invoke our authority under Rule 

615(b)(4) to reduce defendant’s sentence to 25 years in prison, followed by 3 years of mandatory 

supervised release. 730 ILCS 5/5-8-1(d)(1) (West 2016) (the mandatory supervised release term 

shall be written as part of the sentencing order; for first degree murder that term is 3 years). 

¶ 92 III. CONCLUSION 

¶ 93 For the foregoing reasons, we reduce defendant’s sentence to 25 years in prison, followed 

by 3 years of mandatory supervised release. 

¶ 94 Sentence modified. 

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No. 1-19-1907 

Cite as: People v. McKinley, 2020 IL App (1st) 191907 

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 01-CR17493; the Hon. Kenneth J. Wadas, Judge, presiding. 

Attorneys Brian Nisbet, of Winston & Strawn LLP, of Chicago, for 

for appellant. 

Appellant: 

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan 

for J. Spellberg, Clare Wesolik Connolly, and Hareena MeghaniAppellee: Wakely, Assistant State’s Attorneys, of counsel), for the People. 

36