Illinois Official Reports 

Appellate Court

People v. Thomas, 2017 IL App (1st) 142557

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

DERRICK THOMAS, Defendant-Appellant.

District & No. First District, First Division

Docket No. 1-14-2557

Filed March 6, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 12-CR-485; the 

Hon. Stanley J. Sacks, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Michael J. Pelletier, Patricia Mysza, and Rebecca Cohen, of State 

Appellate Defender’s Office, of Chicago, for appellant.

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

Mary P. Needham, and Jesse B. Guth, Assistant State’s Attorneys, of 

counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justice Simon concurred in the judgment and opinion.

Justice Mikva concurred in part and dissented in part, with opinion.
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 OPINION 

¶ 1 Following a jury trial, defendant Derrick Thomas was convicted of first degree murder, 

attempted first degree murder, and attempted armed robbery. The jury found that in 

committing the first degree murder, defendant used a firearm that proximately caused the 

victim’s death and in committing the attempted first degree murder, defendant personally 

discharged a firearm that proximately caused great bodily harm. Defendant, who was 18 years 

old at the time of these offenses, was sentenced to consecutive terms of 45 years for first degree 

murder, 31 years for attempted first degree murder, and 4 years for attempted armed robbery, 

for a total sentence of 80 years. On appeal, defendant argues that prison term represents a 

de facto life sentence that violates the bar against cruel and unusual punishment in the eighth 

amendment to the United States Constitution, as well as the proportionate penalties clause of 

the Illinois Constitution, because the trial court lacked the ability to impose a lesser sentence in 

light of his age and rehabilitative potential and the attendant circumstances of his youth. 

Defendant also contends that his trial counsel was ineffective for failing to challenge his 

sentence as unconstitutional on those grounds. 

¶ 2 The following evidence presented at trial is relevant to defendant’s sentencing claim. 

Defendant was convicted of first degree murder for the fatal shooting of Arvon Grays and 

attempted first degree murder for shooting Terrance Redditt in his side. 

¶ 3 At trial, Redditt testified that in 2011, he worked at a restaurant called Dillinger’s in 

Calumet Park. Redditt and defendant exchanged phone numbers after Redditt showed 

defendant some jackets and tire rims that Redditt was selling out of the trunk of his car. About 

a week later, defendant called Redditt and brought a customer to him who bought $600 worth 

of rims. 

¶ 4 On November 15, 2011, defendant called Redditt from a phone number that was different 

from the number defendant had previously given. They spoke about the tire rims and discussed 

a credit card scam that Redditt would perform. Defendant told Redditt that defendant’s brother 

wanted to buy a set of rims from Redditt for $4200. 

¶ 5 After that conversation, Redditt and Grays met defendant at 117th Street and Lowe Avenue 

in Chicago. Two teenagers were standing on the porch with defendant when Redditt and Grays 

drove up. Redditt asked defendant where the potential buyer was, and according to Redditt, 

defendant “got on the phone and made it like he was calling someone.” Redditt walked back 

toward his car, where Grays sat, to get a cigarette. While standing with his back to defendant, 

Redditt told Grays he did not think defendant was going to buy anything and said defendant 

was “probably on some stickup stuff.”

¶ 6 When Redditt turned back around to face defendant, defendant pointed a gun at Redditt’s 

stomach and said, “Give me everything.” Redditt asked defendant if he was “for real.” 

Defendant shot Redditt in the stomach. Redditt ran away, and defendant fired two more shots, 

striking Redditt in the side. Redditt stated that he and Grays were not armed. 

¶ 7 Defendant fled after Redditt shouted for help and pretended that he saw a police officer. 

Redditt made his way to a nearby porch and heard more gunshots. Redditt was taken by 

ambulance to Stroger Hospital, where he had surgery. Redditt testified that he continues to 

have stomach pains as a result of the shooting. Redditt identified defendant in a photograph 

and a police lineup. Grays was shot in the lower back and died from that wound. 
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¶ 8 Robert Williams testified that on the day of the shootings, defendant arrived at the house of 

a mutual friend. Diamond Isom was also present. Defendant asked to use Isom’s phone 

because “he said he wanted to do a little sting or something like that.” Williams testified that to 

“hit a sting” means to rob someone. Defendant showed Williams a gun in his pocket and said 

he planned to rob a friend that he had met. 

¶ 9 Williams and Isom went on the porch with defendant. When a car drove up, defendant 

approached the car and spoke to the occupants, one of whom remained seated in the car. 

Williams later identified the driver of the car as Redditt. Defendant ordered them to not move 

and shot Redditt as Redditt fled. Williams did not see anyone else holding a weapon. 

¶ 10 Isom testified that defendant paid her $50 to use her phone on the day of the shootings. She 

stated that defendant told her he “wanted to rob this man for his money and his car,” and 

defendant showed her a gun. Isom and Williams followed defendant to make sure she got her 

phone back. Isom described the shootings consistently with the accounts of Williams and 

Redditt. After shooting Redditt, defendant shot Grays, who was sitting in the car. 

¶ 11 In the defense case, defendant testified that he had met Redditt on November 15, 2011, at a 

location other than that described by Redditt. Defendant said Redditt approached him, and they 

discussed a credit card scam and exchanged phone numbers. Defendant said he gave Redditt 

his mother’s phone number.

¶ 12 Defendant admitted meeting Redditt at 117th Street and Lowe Avenue but denied telling 

Williams and Isom that he had a weapon and intended to rob someone. Defendant said that 

when Redditt arrived, Williams and Isom were present, and he was holding a gun that belonged 

to Williams’s brother.

¶ 13 Defendant admitted that he shot Redditt and Grays but testified that he did so in 

self-defense. He stated that he fired shots after Redditt unsuccessfully tried to pull a gun from 

his own waistband. After his arrest, defendant initially told police he was not involved in the 

shooting. Defendant implicated Williams after Redditt identified defendant in a lineup. 

¶ 14 The jury found defendant guilty on all charged counts. The jury further found that in 

committing the first degree murder, defendant used a firearm that proximately caused the 

victim’s death and in committing the attempted first degree murder, defendant personally 

discharged a firearm that proximately caused great bodily harm to the victim. 

¶ 15 At sentencing, the State noted that the minimum sentence for which defendant was eligible 

was 80 years in prison and the maximum sentence was natural life imprisonment. The 

minimum sentence for the murder count was 20 years in prison, to which was added a 25-year 

sentence enhancement for using a firearm that proximately caused the victim’s death, making 

the sentencing range for that offense 45 years to life imprisonment. The minimum sentence for 

attempted murder was 6 years in prison, to which was added a 25-year sentence enhancement 

for discharging a firearm, making the sentencing range for that offense 31 years to life 

imprisonment. The minimum sentence for attempted armed robbery was 4 years in prison, with 

the sentencing range for that offense being 4 to 15 years in prison. 

¶ 16 The State presented a victim impact letter from Jeffana Fowlkes, Grays’s sister. 

Acknowledging that defendant lacked a lengthy criminal history, the State described the case 

as “egregious,” noting that he had tricked the victims into coming to him. The State pointed out 

that Grays was shot as he sat in the car and Redditt was shot as he ran away from defendant. 
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¶ 17 Defense counsel agreed to the applicable sentencing ranges but objected to the sentencing 

scheme, asserting that it “seems unconscionable to me.” Counsel noted that defendant had a 

weapons arrest as a juvenile. The court stated it would not consider that offense. Defense 

counsel told the court that defendant was completing school while in jail. Counsel also stated 

that defendant had no gang affiliation and he may have sustained abuse and neglect as a child. 

¶ 18 Before imposing sentence, the trial court noted: “I don’t believe the sentence is 

unconscionable. The legislature feels it’s an appropriate sentencing range. They determined 

that in their opinion it’s not unconscionable.” The court stated that at the time of the offense, 

defendant was a “young guy” at 18 years of age and is “still a young guy” at 21 years of age but 

that defendant was responsible for his actions of shooting two people and killing one. 

¶ 19 The court stated that defendant’s prison sentence was a result of his actions on the day of 

the offense, finding “[t]hat’s what got him there. He’s a young guy but he made his choices that 

day” by killing Grays and wounding Redditt. The court noted that defendant was receiving the 

minimum sentence possible but remarked it was “practically a life sentence” and that 

defendant would not be restored to useful citizenship “unless he lives to be a really old man 

possibly which hopefully he does.” The trial court sentenced defendant to consecutive terms of 

45 years for first degree murder and 31 years for attempted first degree murder, with each of 

those sentences including a 25-year sentence enhancement for defendant’s use of a firearm. 

The trial court also sentenced defendant to four years for attempted armed robbery, also to be 

served consecutively, for a total term of 80 years. 

¶ 20 Defense counsel filed a motion to reconsider defendant’s sentence, asserting the term was 

excessive given defendant’s background and the nature of the offense, among other points. The 

trial court denied defendant’s motion.

¶ 21 On appeal, defendant contends his 80-year sentence violates the eighth amendment to the 

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

the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Defendant asserts those protections were 

violated because the trial court was bound by the mandatory firearm sentencing enhancements 

that applied in his case and the court was not able to consider his age or the mitigating factors 

related to his youth to impose a term of less than 80 years. He argues his sentence should be 

vacated and his case remanded for a new sentencing hearing. 

¶ 22 The eighth amendment to the United States Constitution, applicable to the states via the 

fourteenth amendment, bars cruel and unusual punishment, namely punishment that is 

“inherently barbaric” or is disproportionate to the offense. Graham v. Florida, 560 U.S. 48, 59 

(2010). The proportionate penalties clause requires that sentences should be determined “both 

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

useful citizenship.” (Internal quotation marks omitted.) People v. Rizzo, 2016 IL 118599, ¶ 28. 

¶ 23 “Constitutional challenges carry the heavy burden of successfully rebutting the strong 

judicial presumption that statutes are constitutional.” (Internal quotation marks omitted.) Id.

¶ 23 (noting that tenet applies to legislative enactments that determine the penalties to be 

imposed for certain conduct). Defendant raises an as-applied constitutional challenge, 

asserting the sentencing scheme here was unconstitutional as applied to the facts and 

circumstances of his case. See People v. Thompson, 2015 IL 118151, ¶¶ 36-37 (“an as-applied 

constitutional challenge is dependent on the particular circumstances and facts of the 

individual defendant or petitioner”). Although our discussion of relevant precedent will 

encompass both constitutional provisions, we note that the proportionate penalties clause has 
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been found to offer greater protection to defendants than the eighth amendment. See People v.

Clemons, 2012 IL 107821, ¶ 40; People v. Wilson, 2016 IL App (1st) 141500, ¶ 38, appeal 

allowed, No. 121345 (Ill. Nov. 23, 2016) (consolidated with People v. Hunter, 2016 IL App 

(1st) 141904); People v. Pace, 2015 IL App (1st) 110415, ¶ 139.

¶ 24 Defendant’s claim of cruel and unusual punishment is based on three recent United States 

Supreme Court cases, the most recent of which is Miller v. Alabama, 567 U.S. 460, ___, 132 S. 

Ct. 2455, 2469 (2012), which held that mandatory sentences of life in prison without the 

possibility of parole for juvenile offenders convicted of homicide violate the eighth 

amendment. The Court held that such a mandatory sentence precludes the trial court’s 

consideration of mitigating factors, including the juvenile’s age and attendant characteristics 

and the nature of the individual crime. Id. at ___, 132 S. Ct. at 2468. Defendant also relies on 

Roper v. Simmons, 543 U.S. 551 (2005), which found unconstitutional under the eighth 

amendment the imposition of capital punishment for a crime committed when the offender was 

younger than 18 years of age, and Graham, which found the eighth amendment was violated 

by a sentence of life imprisonment without the possibility of parole for juvenile offenders 

convicted of offenses other than homicide. Graham, 560 U.S. at 75. 

¶ 25 As defendant concedes, his case differs from Miller, Roper, and Graham in that he was an 

adult, and not a juvenile offender, at the time of these crimes. Still, defendant maintains that it 

is highly improbable, given the length of his sentence and his age, that he will outlive his term 

of incarceration, and he thus asserts his 80-year term represents a de facto life sentence. The 

parties agree on appeal that even with good-time sentencing credit, defendant must serve the 

majority of his term, namely, at least 73 years of his 80-year sentence. 

¶ 26 Although the Illinois Supreme Court has not addressed the application of Miller to an adult 

defendant, it has stated that the rationale of Miller, Roper, and Graham applies “only in the 

context of the most severe of all criminal penalties.” People v. Patterson, 2014 IL 115102, 

¶ 110. During the pendency of this appeal, the supreme court held in People v. Reyes, 2016 IL 

119271, ¶¶ 9-10, that a mandatory 97-year prison term for a 16-year-old juvenile offender 

operates as a de facto life sentence “that is the functional equivalent of life without the 

possibility of parole [and] constitutes cruel and unusual punishment in violation of the eighth 

amendment.” Reyes does not warrant a similar result here, where defendant was not a juvenile 

offender. The supreme court in Reyes did not indicate it would extend the protections of Miller

to adult offenders. 

¶ 27 In a case involving an adult defendant, this court has rejected attempts to compare a 

lengthy prison term to a de facto life sentence without parole. In People v. Gay, 2011 IL App 

(4th) 100009, ¶¶ 19-25, this court held that a 97-year term composed of consecutive sentences 

for the defendant’s 16 felony convictions did not amount to cruel and unusual punishment, 

noting that the eighth amendment “allows the State to punish a criminal for each crime he 

commits, regardless of the number of convictions or the duration of sentences he has already 

accrued.” 

¶ 28 Therefore, this court has held that where an adult defendant receives a sentence that 

approaches the span of the defendant’s lifetime, that term does not implicate the eighth 

amendment right barring cruel and unusual punishment. Defendant cannot demonstrate 

otherwise under Miller, Roper, and Graham, which involve capital punishment or life 

sentences without parole for juvenile offenders. 
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¶ 29 We next consider defendant’s claims that his sentence should be vacated under the 

proportionate penalties clause of the Illinois Constitution. A challenge under the proportionate 

penalties clause “contends that the penalty in question was not determined according to the 

seriousness of the offense.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). Defendant contends 

that the trial court had no choice but to impose a minimum term of 80 years and lacked the 

discretion to consider his age, the characteristics of youth, and his capacity for rehabilitation. 

As a result, his 80-year prison sentence violates the standard that a punishment must not be 

cruel, degrading, or wholly disproportionate to the offense as to shock the moral sense of the 

community. See Rizzo, 2016 IL 118599, ¶ 37 (and cases cited therein). 

¶ 30 Defendant’s 80-year sentence includes two mandatory firearm enhancements imposed 

pursuant to section 5-8-1(a)(1)(d) of the Unified Code of Corrections (the Unified Code) (730 

ILCS 5/5-8-1(a)(1)(d) (West 2010)). A 25-year enhancement was added to defendant’s 

sentence for first degree murder based on the jury’s finding that defendant personally 

discharged a firearm that proximately caused Grays’ death. 730 ILCS 5/5-8-1(a)(1)(d)(iii) 

(West 2010) (requiring that an additional term of between 25 years to natural life 

imprisonment be added to a sentence if, during the commission of the offense, the defendant 

personally discharged a firearm that proximately caused “great bodily harm, permanent 

disability, permanent disfigurement, or death to another person”). Under the same provision, 

another 25-year enhancement was added to defendant’s sentence for attempted first degree 

murder based on the jury’s finding that defendant discharged a firearm that proximately caused 

great bodily harm to Redditt. Because defendant inflicted severe bodily injury and was 

convicted of first degree murder, the trial court was required to impose consecutive sentences. 

See 730 ILCS 5/5-8-4(d)(1) (West 2012). 

¶ 31 The two mandatory enhancements in this case total 50 years and comprise more than half 

of defendant’s 80-year sentence. As to the rest of defendant’s sentence, the trial court imposed 

the minimum base sentence for each of defendant’s three felony convictions, sentencing 

defendant to 20 years for first degree murder, 6 years for attempted murder, and 4 years for 

attempted armed robbery. See 730 ILCS 5/5-4.5-20(a) (West 2010) (sentencing range for 

murder is 20 to 60 years); 720 ILCS 5/8-4(c)(1)(D) (West 2010) (attempted first degree murder 

is subject to a Class X felony sentence and a 25-year enhancement when the use of a firearm 

proximately causes great bodily harm); 730 ILCS 5/5-4.5-25(a) (West 2010) (Class X felony 

sentencing range is 6 to 30 years); 730 ILCS 5/18-2(b) (West 2010); 720 ILCS 5/8-4(c)(2) 

(West 2010); 730 ILCS 5.5-4.5-30(a) (West 2010) (armed robbery is a Class X felony, and the 

attempt to commit a Class X felony is punishable under the Class 1 felony sentencing range of 

4 to 15 years). The trial court could have imposed two terms of natural life imprisonment 

against defendant under the mandatory firearm enhancements but elected not to do so. 

¶ 32 Our supreme court has upheld the constitutionality of mandatory firearm enhancements 

under the proportionate penalties clause, finding that in fixing a penalty for an offense, the 

potential for rehabilitation need not be given greater weight or consideration than the 

seriousness of the offense. Sharpe, 216 Ill. 2d at 525. Mandatory firearm enhancements are 

intended “to promote public health and safety, and to impose severe penalties that will deter 

the use of firearms in the commission of felonies.” People v. Butler, 2013 IL App (1st) 120923, 

¶ 36. The legislature considered the use of firearms during the commission of felonies a serious 

concern, and the enhanced sentences reflect the legislature’s intent in this regard. Sharpe, 216 
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Ill. 2d at 525-26. Our supreme court also determined that the legislature took into account 

rehabilitative potential when the firearm enhancements are applied. Id. at 526. 

¶ 33 Defendant, however, argues that the sentencing scheme applied to him, an 18-year-old 

when he committed the offenses, violates the proportionate penalties clause because he was 

young and the trial court was precluded from considering the hallmarks of youth (lack of 

maturity, underdeveloped sense of responsibility, etc.) before imposing a term of 80 years in 

prison. As support, defendant cites People v. Brown, 2015 IL App (1st) 130048, ¶ 46; People v. 

Gipson, 2015 IL App (1st) 122451, ¶ 69, appeal allowed, No. 119594 (Ill. Nov. 23, 2016); and 

People v. House, 2015 IL App (1st) 110580, ¶ 101. Two cases involved juvenile offenders: 

Brown involved a 16-year-old defendant and Gipson involved a 15-year-old defendant, both of 

whom were tried as adults. Since defendant was an 18-year-old adult offender when he 

committed the offenses, those cases are not applicable here. 

¶ 34 House involved a 19-year-old adult offender who was sentenced to natural life 

imprisonment for two counts of first degree murder. Id. ¶ 3. That term was imposed pursuant to 

an Illinois statute mandating a natural life term for defendants 17 years or older found guilty of 

murdering more than one victim. Id. ¶ 82 (citing 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1998)). 

That statute, known as the multiple-murder provision of the Unified Code, has since been 

amended to raise the applicable age to 18 years. Id. ¶ 82 n.2 (citing Pub. Act 99-69, § 10 (eff. 

Jan. 1, 2016)). In finding the multiple-murder provision unconstitutional under the 

proportionate penalties clause as applied to that defendant, the House court noted that although 

the defendant was an adult, he was convicted on an accountability theory and his participation 

in the offense was limited to acting as a lookout. Id. ¶ 89 (observing that the defendant received 

“the same sentence applicable to the person who pulled the trigger”). However, House does not 

support the same outcome here. Unlike House, the defendant here was the active shooter 

convicted of first degree murder using a firearm that proximately caused one victim’s death. 

Additionally, his attempted murder conviction resulted from shooting at a surviving victim 

three times where one bullet entered the victim’s stomach, another in his side. Defendant’s 

convictions were based on his own actions as opposed to accountability for the acts of another 

found in House. 

¶ 35 After House was decided, this court addressed a similar case involving an adult offender 

and rejected the defendant’s proportionate penalties claim. In People v. Ybarra, 2016 IL App 

(1st) 142407, ¶¶ 1, 22, the defendant, who was 20 years old at the time of the crime, was 

convicted of three counts of first degree murder and received a mandatory natural life sentence 

under the same statute applicable in House. In sentencing the defendant, the trial court heard 

evidence in mitigation of the defendant’s sentence but stated that even if it had discretion to 

impose a lower term, it would still sentence the defendant to natural life in prison. Id. ¶ 18. 

Affirming that sentence, this court distinguished the facts before it from those in House, noting 

the defendant had acted in a premeditated fashion and “pulled the trigger repeatedly[,] *** 

kill[ing] three teenagers on the street as they left school one afternoon.” Id. ¶¶ 27-30. 

¶ 36 Defendant here contacted Redditt and told Redditt that he knew someone who would 

purchase tire rims from him. Defendant told Williams that he planned to rob Redditt, and 

defendant paid Isom to use her cell phone to avoid detection. After Redditt and Grays arrived, 

defendant shot at Redditt, striking him in the stomach, and then chased him and fired two more 

shots at the fleeing Redditt, one of which struck him in his side. Defendant also fatally shot 

Grays in the back as he sat in the car. At sentencing, the trial court stated that it did not find the 
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sentence imposed unconscionable and that the legislature did not find it unconscionable. 

Although at the time of the offense defendant was a “young guy” at 18 years of age, he was 

“responsible for his actions of shooting two people and killing one.” The court stated that 

defendant’s prison sentence was the result of his actions that day, finding “[t]hat’s what got 

him there. He’s a young guy but he made his choices that day” by killing Grays and wounding 

Redditt. The facts of this case reveal culpable behavior by defendant comparable to the 

intentional acts of the defendant in Ybarra, rather than the conduct resulting in the defendant’s 

accountability conviction in House. 

¶ 37 We note that while this appeal was pending, another division of the First District decided 

People v. Harris, 2016 IL App (1st) 141744. In Harris, the court held, contrary to our 

determination here, that the 76-year sentence given to the defendant, who was 18 years old at 

the time of the offense, violated the proportionate penalties clause of the Illinois Constitution 

because the trial court was not allowed to consider the defendant’s rehabilitative potential. The 

Harris court acknowledged that Miller, Roper, and Graham applied only to juvenile 

defendants. However, with one justice dissenting, two justices determined that the “Illinois 

Supreme Court has recognized that research on juvenile maturity and brain development might 

also apply to young adults.” Id. ¶ 61. As support, the court cited to Thompson, 2015 IL 118151, 

and concluded that although Thompson did not explicitly extend Miller to young adults, “it did 

open the door for that argument.” Harris, 2016 IL App (1st) 141744. 

¶ 38 We respectfully disagree with Harris. As will be shown, the majority opinion in Harris

wrongly claims Thompson as authority to argue extending the juvenile sentencing reasoning in 

Miller to include young adults, i.e., those defendants 18 years or older. We decline to follow 

the well-meaning but false interpretation of precedent authored by the majority in Harris to 

judicially advance greater sentencing discretion to trial judges. This is the province of the 

legislature. 

¶ 39 In Thompson, the defendant was convicted of two counts of first degree murder for fatally 

shooting his father and a woman inside his father’s house. Thompson, 2015 IL 118151, ¶ 4. 

The defendant was 19 years old at the time of the shootings. Seventeen years after his 

conviction, the defendant sought relief and filed a petition pursuant to section 2-1401 of the 

Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). In his petition, the 

defendant argued that the trial court violated his right to due process, and he also alleged 

various deficiencies on the part of his counsel. Thompson, 2015 IL 118151, ¶ 14. The State 

filed a motion to dismiss the petition as untimely, which the trial court granted. Id. ¶ 15. On 

appeal, the defendant abandoned all of his contentions in his original petition and argued for 

the first time that the sentencing statute was unconstitutional as applied to him because he was 

19 years old at the time, had no criminal history, and his actions resulted from years of abuse 

by his father. Id. ¶ 17. 

¶ 40 The issue in Thompson was whether the defendant could raise his as-applied constitutional 

challenge for the first time on appeal. The defendant stated he was not asking the supreme 

court to look at the merits of his argument that Miller should apply to his mandatory life 

sentence. Rather, he merely argued that he should be able to bring the matter to the appellate 

court for substantive review of the issue. Id. ¶ 22. Therefore, the question facing our supreme 

court in Thompson was “whether defendant’s as-applied constitutional challenge to his 

sentence is procedurally barred or forfeited because defendant failed to include that claim in 

his section 2-1401 petition.” Id. ¶ 25. 
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¶ 41 To resolve the issue, the court in Thompson noted that a section 2-1401 petition must be 

filed within two years of final judgment, and an exemption from this procedural bar “is 

available only for specific types of claims.” Id. ¶ 31. The court determined that although a 

facial constitutional challenge may be raised at any time, the defendant’s as-applied 

constitutional challenge to his sentence was “not a type recognized by any of our precedents as 

exempt from the typical procedural bars of section 2-1401.” Id. ¶ 34. 

¶ 42 Our supreme court reasoned that the resulting injustices are not the same in both cases, 

because an as-applied challenge requires a showing of a violation based on the facts and 

circumstances of a specific party, whereas a facial constitutional challenge requires a showing 

that the statute is unconstitutional under any set of facts. Id. ¶ 36. As illustration, the court 

referred to the defendant’s as-applied challenge and his reliance on the evolving science of 

juvenile maturity and brain development “that formed the basis of the Miller decision to ban 

mandatory natural life sentences for minors.” Id. ¶ 38. The court noted that because the 

defendant raised this issue for the first time on appeal, the record “contains nothing about how 

that science applies to the circumstances of defendant’s case” or “any factual development on 

the issue of whether the rationale of Miller should be extended beyond minors under the age of 

18.” Id. It determined that the trial court “is the most appropriate tribunal” to address 

defendant’s as-applied challenge. Id. 

¶ 43 The supreme court in Thompson did not “open the door” for defendants to argue that the 

reasoning in Miller should be extended to young adults over the age of 18. Rather, it 

determined that the defendant forfeited his challenge to his sentence under Miller by raising it 

for the first time on appeal. Id. ¶ 39. Although the court in Thompson noted that the defendant 

“is not necessarily foreclosed from renewing his as-applied challenge in the circuit court,” it 

expressed “no opinion on the merits of any future claim raised by defendant in a new 

proceeding.” Id. ¶ 44. 

¶ 44 Our dissenting colleague would follow Harris to find that defendant’s sentence here 

violates the proportionate penalties clause because the protections of the clause go beyond that 

of the eighth amendment and require the trial court to consider rehabilitative potential before 

imposing a sentence. We agree that the proportionate penalties clause goes beyond the 

protections of the eighth amendment in this sense. However, as our supreme court found in 

Sharpe, the legislature did consider rehabilitative potential when it created the mandatory 

firearm enhancements that constitute 50 years of defendant’s 80-year sentence. Although 

defendant argues that, given his age, his rehabilitation potential should receive greater 

consideration, our supreme court has determined that the potential for rehabilitation need not 

be given greater weight than the seriousness of the offense. Sharpe, 216 Ill. 2d at 525. 

¶ 45 The dissent also argues that since defendant was only 18 years old when he committed the 

offenses, he is more similar to the juvenile defendants in Roper, Graham, and Miller; 

therefore, defendant’s sentence imposed without due consideration of the hallmarks of youth 

and rehabilitation potential violates the proportionate penalties clause. Our supreme court has 

never defined what constitutes cruel or degrading punishment or what punishment is so 

disproportionate to the offense that it shocks the moral sense of the community. People v. 

Miller, 202 Ill. 2d 328, 339 (2002) (Leon Miller). It has not supplied a precise definition 

“because, as our society evolves, so too do our concepts of elemental decency and fairness 

which shape the ‘moral sense’ of the community.” Id. 
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¶ 46 In Leon Miller, our supreme court recognized “a marked distinction between persons of 

mature age and those who are minors” and that “[t]his distinction may well be taken into 

consideration by the legislative power in fixing the punishment for crime, both in determining 

the method of inflicting punishment and in limiting its quantity and duration.” (Internal 

quotation marks omitted.) Id. at 342. The Illinois General Assembly did subsequently draw the 

line between “persons of mature age” and minors for purposes of sentencing. It enacted a new 

sentencing provision (730 ILCS 5/5-4.5-105 (West Supp. 2015)), effective January 1, 2016, 

providing that “when a person commits an offense and the person is under 18 years of age at 

the time of the commission of the offense” the sentencing court shall consider the following 

factors in addition to mitigation factors: 

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

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

of cognitive or developmental disability, or both, if any; 

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

familial pressure, or negative influences; 

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

including any history of parental neglect, physical abuse, or other childhood trauma; 

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

 (5) the circumstances of the offense; 

(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[.]”

¶ 47 The legislature, pursuant to its authority, has determined that the youth-related 

considerations above are relevant in sentencing only for defendants who were under the age of 

18 when they committed their offenses. Therefore, for defendants 18 years of age or older 

when they committed their offenses, the legislature has deemed that failure to take those 

factors into account does not render a sentence cruel or degrading or so disproportionate to the 

offense that it shocks the moral sense of the community. Although one can make a case that the 

18-year-old defendant here is not much different from a 17-year-old in terms of youthful 

characteristics, a line must be drawn at some point. House’s citation to scholarly authority, 

pointing out the fact that Germany and the Netherlands extend juvenile justice considerations 

to young adults ages 18 to 21, and Sweden does the same for young adults up to the age of 25, 

illustrates this problem. See House, 2015 IL App (1st) 110580, ¶ 96. Where should the line be 

drawn? At this time, our legislature has determined that at the age of 18, a person is an adult for 

sentencing purposes. This determination is not without support. As the Supreme Court 

acknowledged in Roper, although “[t]he qualities that distinguish juveniles from adults do not 

disappear when an individual turns 18,” that age “is the point where society draws the line for 

many purposes between childhood and adulthood.” Roper, 543 U.S. at 574. We agree with the 

dissent in Harris that “it is for the legislature, and not the courts, to revisit the sentencing 

scheme and afford greater discretion to trial judges” for defendants 18 years of age or older. 

Harris, 2016 IL App (1st) 141744, ¶ 80 (Mason, J., concurring in part and dissenting in part). 

For these reasons, we decline to follow Harris. 
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¶ 48 In conclusion, as an adult offender, defendant cannot obtain relief under the holdings of 

Miller, Roper, and Graham. Moreover, defendant’s sentence did not violate the proportionate 

penalties clause because mandatory firearm enhancements are intended to account for the 

serious nature of weapons offenses as well as defendant’s rehabilitative potential. The record 

also establishes that, in its discretion, the trial court considered defendant’s age and 

background in imposing the shortest possible sentence in this case. Therefore, defendant has 

not demonstrated a violation of his constitutional rights under either the eighth amendment or 

the proportionate penalties clause. 

¶ 49 Defendant’s remaining contention on appeal is that his trial counsel was ineffective for 

failing to raise these constitutional arguments at his sentencing hearing. He asserts his counsel 

should have argued to the trial court that it could impose a sentence lower than the statutory 

minimum if it found the mandatory minimum sentence unconstitutional as applied to 

defendant. 

¶ 50 In essence, defendant contends the trial court would have sentenced him to a term of less 

than 80 years had the court been made aware of the precedent that defendant now presents 

here. He argues the trial court was in the best position to consider whether the holdings of 

Miller and the other cases discussed above should extend to defendants between the ages of 18 

and 21. 

¶ 51 To establish ineffective assistance of counsel, a defendant must satisfy the test in 

Strickland v. Washington, 466 U.S. 668, 694 (1984), namely that (1) counsel’s performance 

was objectively unreasonable compared with prevailing professional standards and (2) there is 

a reasonable probability that but for those errors, the result of the proceeding would have been 

different. This court can resolve such a claim by considering only whether defendant has met 

the prejudice prong, which “necessitates a showing of actual prejudice, not simply speculation 

that defendant may have been prejudiced.” Patterson, 2014 IL 115102, ¶ 81. 

¶ 52 Defendant’s argument on this point relies on speculation that, had his counsel explained 

the Miller decision in detail at sentencing, the trial court would have ventured below the 

statutory minimum sentence. Defendant contends that the trial court failed to “highlight the 

science underlying Roper, Graham and Miller, which makes [defendant] less culpable.” 

Despite defendant’s repeated assertions to the contrary, those cases do not address the 

culpability of an adult defendant. Here, the trial court clearly indicated that defendant was an 

18-year-old offender who was responsible for his acts of shooting two people, one fatally. 

¶ 53 The additional authority cited by defendant on this point is not persuasive. Defendant 

directs us to Leon Miller, in which the trial court imposed a 50-year sentence for a 15-year-old 

offender who was charged with two counts of first degree murder based on an accountability 

theory, despite the statutorily mandated sentence of natural life imprisonment required by the 

multiple-murder provision of the Unified Code (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996)). 

The supreme court affirmed the imposition of a 50-year term for that defendant, finding the 

sentencing scheme involved the automatic transfer of 15- and 16-year-olds charged with 

murder to adult court and the requirement that the defendant be held equally responsible as the 

principal in the offense, as well as the application of the multiple-murder statute. Leon Miller, 

202 Ill. 2d at 340-41. Finding the required sentence of natural life imprisonment was 

“particularly harsh and unconstitutionally disproportionate” and “does not accurately represent 

defendant’s personal culpability,” the supreme court noted in Leon Miller that “defendant was 
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tried as if he were the adult shooter in the crime.” Id. We do not find the facts of Leon Miller

require a similar result here, where defendant was an adult and was the gunman. 

¶ 54 For all of the reasons set forth above, defendant’s 80-year sentence was constitutional 

under the eighth amendment and the proportionate penalties clause. In addition, defendant did 

not receive ineffective assistance of counsel at sentencing. 

¶ 55 Accordingly, the judgment of the trial court is affirmed. 

¶ 56 Affirmed. 

¶ 57 JUSTICE MIKVA, concurring in part and dissenting in part. 

¶ 58 I join in that part of the court’s decision rejecting Derrick Thomas’s claim that his trial 

counsel was ineffective. However, I believe that he has demonstrated a violation of his 

constitutional rights under the proportionate penalties clause of the Illinois Constitution and 

that we should follow the recent decision by another panel in this district in People v. Harris, 

2016 IL App (1st) 141744. 

¶ 59 The court’s opinion in this case does not dispute that the constitutional claim raised by 

Derrick Thomas here is identical to the one that the court recognized in Harris. Like Darien 

Harris, Derrick Thomas was 18 years old at the time of his crimes; Derrick Thomas received a 

sentence of 80 years, which, even more clearly than Darien Harris’s 76-year sentence, is a 

de facto life sentence; Derrick Thomas, like Darien Harris, had no previous adult criminal 

record, and most significantly, the sentence Derrick Thomas received was, like that received 

by Darien Harris, the minimum sentence available for the trial court to impose after taking into 

consideration statutorily required minimum sentences, sentencing enhancements, and required 

consecutive sentences. See id. ¶¶ 15, 32. As in Harris, the trial court here was prevented from 

exercising any discretion to impose a lesser sentence. Id. ¶ 71. 

¶ 60 I agree with the majority in this case (supra ¶ 44) that the Illinois Supreme Court’s decision 

in People v. Thompson, 2015 IL 118151, expressed “no opinion” on whether the prohibition on 

mandatory life sentences for defendants who were under the age of 18 at the time of their 

crimes should be extended to an 18-year-old defendant, as in this case and in Harris, or to a 

19-year-old defendant, as in Thompson. However, I think that both Harris and the precedent it 

cites, People v. House, 2015 IL App (1st) 110580, offer compelling reasons for holding that, in 

this case, the imposition of a mandatory de facto life sentence violates the proportionate 

penalties clause of the Illinois Constitution, which 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. 

¶ 61 As our court recognized in Harris: 

“In recent years, the United States Supreme Court has held that the eighth 

amendment protects juvenile offenders from capital punishment or mandatory life 

imprisonment without parole. Roper, 543 U.S. at 578-79; Graham v. Florida, 560 U.S. 

48, 82 (2010); Miller v. Alabama, 567 U.S. [460], ___, 132 S. Ct. 2455, 2475 (2012). 

These holdings were grounded in the Court’s concern, based on scientific research 

about adolescent brain development, that juveniles lack maturity, are more vulnerable 

to bad influences, and are more amenable to rehabilitation. Roper, 543 U.S. at 570.” 

Harris, 2016 IL App (1st) 141744, ¶ 56. 
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¶ 62 This trio of United States Supreme Court cases held that both capital punishment and 

mandatory life imprisonment without parole are unconstitutional penalties for defendants who 

were under the age of 18 at the time of their crimes. These cases rested on extensive research 

which the Court summarized as follows in Miller: 

“Because juveniles have diminished culpability and greater prospects for reform, we 

explained, they are less deserving of the most severe punishments. [Citation.] Those 

cases relied on three significant gaps between juveniles and adults. First, children have 

a lack of maturity and an underdeveloped sense of responsibility, leading to 

recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children are 

more vulnerable ... to negative influences and outside pressures, including from their 

family and peers; they have limited contro[l] over their own environment and lack the 

ability to extricate themselves from horrific, crime-producing settings. [Citation.] And 

third, a child’s character is not as well formed as an adult’s; his traits are less fixed and 

his actions less likely to be evidence of irretrievabl[e] deprav[ity].” (Internal quotation 

marks omitted.) Miller, 567 U.S. at ___, 132 S. Ct. at 2464. 

¶ 63 Our supreme court, in People v. Reyes, 2016 IL 119271, extended this trio of United States 

Supreme Court cases to hold that it was also unconstitutional to impose a mandatory 

term-of-years sentence that was so lengthy that it was a de facto sentence of life without parole 

on a defendant who was under the age of 18 at the time of the crime. Although the State does 

not formally admit that the sentence Derrick Thomas received is a de facto sentence of life 

without parole, it acknowledges that the shortest sentence that he could actually serve would be 

73 years and 4 months, which would make him 92 years old when he is released. This is a 

de facto life sentence. 

¶ 64 Although neither Reyes nor the United States Supreme Court cases discuss this explicitly, 

it is worth noting that only a young adult has any chance of serving a significant portion of such 

a lengthy sentence. Someone sentenced to jail at the age of 40 or 50 will in fact spend far less 

time in prison than a younger person, even if he or she is given the exact same sentence. Thus, 

instead of being given shorter sentences because of their youth, these younger defendants are 

actually punished far more harshly than their older counterparts. 

¶ 65 Our state constitution specifically mandates that penalties in Illinois have “the objective of 

restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11; Harris, 2016 IL App 

(1st) 141744, ¶ 58. Any consideration of this objective of rehabilitative potential necessitates 

that a trial court has the ability to consider the defendant’s youth, together with the extensive 

research on juvenile maturity and brain research that led to the holdings by the United States 

Supreme Court in the trio of cases culminating in Miller. I also agree with the court in Harris

that the proportionate penalties clause of the Illinois constitution “ ‘went beyond the framers’ 

understanding of the eighth amendment and is not synonymous with that provision.’ ” 2016 IL 

App (1st) 141744, ¶ 36 (quoting People v. Clemons, 2012 IL 107821, ¶ 40). Our constitution 

makes the very specific commandment, not present in the eighth amendment, that in 

sentencing we must consider rehabilitative potential. Thus, while the United States Supreme 

Court cases drew the line, for eighth amendment purposes, at defendants who were younger 

than the age of 18 when they committed their crimes, that limitation need not and should not 

apply to the proportionate penalties clause of our constitution. As the United States Supreme 

Court recognized itself in Roper, “[t]he qualities that distinguish juveniles from adults do not 

disappear when an individual turns 18.” 543 U.S. at 574. 
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¶ 66 Moreover, when the United States Supreme Court drew the line in Roper at defendants 

who were under the age of 18 when their crimes were committed, it was in the context of 

holding that the death penalty could never be imposed. As the Supreme Court recognized, for 

such a categorical rule, “a line must be drawn.” However, the holding in Harris was not that 

the de facto life sentence could never be imposed. Rather, that such a sentence should not be 

imposed—as it was in that case and as it was for Derrick Thomas—without the trial court 

being given an opportunity to consider the defendant’s potential for rehabilitation. 

¶ 67 Our court in House, in deciding that youth remained a relevant factor for a defendant who 

was convicted of two murders that occurred when he was 20 years old, cited several scholarly 

articles recognizing that several European countries have extended juvenile justice 

considerations to include, in Germany and in the Netherlands for example, all young adults 

from ages 18 to 21 and, in Sweden, young adults up to the age of 25. 2015 IL App (1st) 

110580, ¶ 96.

¶ 68 The result in this case is particularly at odds with the theme of judicial discretion 

underlying this state’s statutory sentencing scheme, a theme that has been repeatedly 

underscored by both our supreme court and by our colleagues in the appellate court: 

“The trial court has broad discretionary powers in imposing a sentence, and its 

sentencing decisions are entitled to great deference. [Citation.] A reviewing court gives 

great deference to the trial court’s judgment regarding sentencing because the trial 

judge, having observed the defendant and the proceedings, has a far better opportunity 

to consider these factors than the reviewing court, which must rely on the ‘cold’ record. 

[Citation.] The trial judge has the opportunity to weigh such factors as the defendant’s 

credibility, demeanor, general moral character, mentality, social environment, habits, 

and age. [Citations.] Consequently, the reviewing court must not substitute its 

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

differently.” (Internal quotation marks omitted.) People v. Alexander, 239 Ill. 2d 205, 

212-13 (2010). 

See also People v. Decatur, 2015 IL App (1st) 130231, ¶ 12 (“the trial court, having observed 

the defendant and the proceedings, is better suited to consider sentencing factors than the 

reviewing court, which relies on the ‘cold’ record”).

¶ 69 When it sentenced Derrick Thomas, the trial court in this case had no opportunity to 

consider any factors, including his age or, as our constitution expressly mandates, “the 

objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. The trial 

court specifically remarked that, because of the mandatory minimum consecutive sentencing 

statutes, it was “unable to consider” whether Derrick Thomas “could be restored to useful 

citizenship.” The trial court also acknowledged that the events that ended with Derrick Thomas 

killing one man and badly wounding another began as a “nonsensical plan.” The court 

summarized the “problem” as follows: “18 years old, has a gun available to him and he uses it 

in this case to shoot two people.” It is certainly possible that, if allowed to consider it, the trial 

court would have viewed this tragic incident as an effect of “recklessness, impulsivity and 

heedless risk-taking.” Miller, 567 U.S. at ___, 132 S. Ct. at 2464; see Roper, 543 U.S. at 569. It 

is also possible that the trial court would have believed that Derrick Thomas, like the 

defendants who were under the age of 18 at the time of their crimes in Roper, Graham, and 

Miller, suffered from a “lack of maturity and an underdeveloped sense of responsibility, 

leading to recklessness, impulsivity, and heedless risk-taking,” that he was young enough to be 
- 15 - 

unduly subject “to negative influences and outside pressures,” that his traits were “less fixed” 

than those of an adult, and that “his actions [were] less likely to be evidence of irretrievabl[e] 

deprav[ity].” (Internal quotation marks omitted.) Miller, 567 U.S. at ___, 132 S. Ct. at 2464. If 

we followed Harris and House, we could remand this case and allow the trial court to consider 

the facts bearing on this particular defendant’s potential for rehabilitation. 

¶ 70 The majority distinguishes House, in which the court also found that a mandatory life 

sentence for a young offender—in that case a 20-year-old—was unconstitutional. Supra

¶¶ 36-38. House was previously distinguished in People v. Ybarra, 2016 IL App (1st) 142407, 

¶ 27, and the majority here concludes that Derrick Thomas’s case is more like Ybarra than like 

House, because the facts of this case reveal culpable behavior by defendant that is more 

comparable to the intentional acts of the defendant in Ybarra than the accountability 

conviction of the defendant in House. See supra ¶ 36. Respectfully, this is not our decision to 

make, particularly in the first instance. It is the trial court judge, who saw Derrick Thomas and 

observed his demeanor and general moral character, as well as his age, who should have the 

opportunity to determine whether he had a potential for rehabilitation such that something 

short of a de facto life sentence was appropriate. Indeed, in Ybarra, the culpability of the 

defendant was particularly egregious and the trial judge stated on the record that he would have 

imposed a life sentence even if he had been afforded the discretion to impose a lighter 

sentence. 2016 IL App (1st) 142407, ¶ 32. In contrast, the trial judge in this case said that he 

had no discretion and was “unable” to consider rehabilitative potential. It is the fact that we 

have no idea what the trial court would have done if given discretion and an ability to consider 

rehabilitative potential for a young adult that makes this case like House and different from 

Ybarra. 

¶ 71 The majority here makes no attempt to distinguish Harris but chooses not to follow it.

Other than its disagreement with the court in Harris that our supreme court opened the door to 

this holding in Thompson, the majority supports this choice with the suggestion that we should 

wait for the legislature to revisit the sentencing scheme that left the trial judge in this case with 

no sentencing option less than the de facto life sentence it imposed on Derrick Thomas. Supra

¶ 44. We may be waiting for some time. Although our supreme court held in 2002 that the 

imposition of a mandatory minimum sentence of natural life violated the proportionate 

penalties clause on a 15-year-old defendant (People v. Miller, 202 Ill. 2d 328, 336 (2002) 

(Leon Miller)), it was not until 2016, and after the court’s holding in that case was joined by 

numerous others in cases before this court, the United States Supreme Court, and courts in 

other jurisdictions, that the legislature returned some discretion to trial court judges in the 

sentencing of juveniles. See Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 

5/5-4.5-105(c) (eliminating mandatory firearm enhancements and mandatory life sentences for 

juveniles)). 

¶ 72 We certainly could sit back and wait for the legislature to return some degree of discretion 

in the sentencing of very young adults to the courts. But of course it is the role of the judiciary, 

and not the legislature, to step in wherever the application of a statute violates the rights 

afforded by our constitution. See, e.g., Leon Miller, 202 Ill. 2d at 336 (noting that the 

legislature’s power to impose a sentence “is not without limitation; the penalty must satisfy 

constitutional constrictions”). To do so now would not be premature. There is a clear trend, 

informed by ever-accumulating scientific evidence, in the jurisprudence of this country and 

this state toward more leniency and sentencing discretion in cases involving young offenders. 
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It is precisely to accommodate trends like this, which reflect the changing values and concerns 

of our society, that our supreme court has refused to precisely delimit the bounds of what 

punishments are cruel, degrading, or unconstitutionally disproportionate. See id. at 339 

(explaining that, “as our society evolves, so too do our concepts of elemental decency and 

fairness which shape the moral sense of the community”). Although Derrick Thomas 

committed very serious crimes, under our constitution he is entitled to a sentence based not just 

on the seriousness of those crimes but one that is arrived at with the objective of restoring him 

to useful citizenship. A sentence imposed without consideration for his youth or the scientific 

evidence demonstrating a connection between youth and the potential for rehabilitation cannot 

meet this standard. 

¶ 73 I respectfully dissent.