2024 IL App (1st) 220470-U 

No. 1-22-0470 

Order filed June 7, 2024

 Fifth Division

 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1). 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) 

 ) Appeal from the

Plaintiff-Appellee, ) Circuit Court of Cook County.

 ) 

 v. ) No. 06 CR 12064

 ) 

EFREN AGUILAR, ) Honorable Angela Munari Petrone, 

) Judge, Presiding. 

Defendant-Appellant. ) 

JUSTICE NAVARRO delivered the judgment of the court.

Justices Mikva and Lyle concurred in the judgment.

ORDER

 

¶ 1 Held: Defendant’s 50-year sentence imposed at the resentencing hearing 

does not violate either the eighth amendment of the United States 

Constitution or the proportionate penalties clause of the Illinois 

Constitution. The sentencing court did not abuse its discretion 

when it resentenced him to 50 years in prison; affirmed.

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

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

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

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

(West 2018)), and remanded for resentencing because the trial court did not consider Aguilar’s 

youth and factors, as set forth in Miller v. Alabama, 567 U.S. 460 (2012), when it sentenced him 
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2 

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

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

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

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

(West 2022)). 

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

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

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

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

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

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

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

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

court overlooked and misconstrued critical mitigation. 

¶ 4 I. BACKGROUND 

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

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

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

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

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

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

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

a question about what gang they were in and some of them responded that they were not in a gang. 
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Aguilar then pulled out a gun and started shooting. A bullet struck McClelland in his back, and he 

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

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

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

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

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

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

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

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

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

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

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

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

2012 IL App (1st) 110878-U, ¶ 3. 

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

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

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

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

¶ 9 Post-Conviction Proceedings

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

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

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

to support his petition, including an affidavit from Priscila Pernillo, who was Aguilar’s girlfriend 
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at the time. She averred that on the night of the incident, she and Aguilar were together with their 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and remanded for further proceedings, concluding that his 50-year sentence violated the eighth 
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amendment to the United States Constitution. Aguilar, 2019 IL App (1st) 160224-U, ¶ 28. In doing 

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

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

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

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

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

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

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

¶ 14 Resentencing Hearing on Remand

¶ 15 Aggravation Evidence

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

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

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

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

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

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

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

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

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

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

impact statements. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

heavily invested so there was no turning back.’ ” 

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

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

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

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

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

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

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

in which Augilar was involved while in custody as well as the 2022 PSI report, which contained 
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information on his social history, education and employment, family and social support, housing 

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

patterns. Griselda Magallanes testified as a witness for Aguilar. 

¶ 22 Arguments 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

rehabilitation. Counsel stated that Aguilar received certificates from various programs in the Cook 
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County jail, where he had been living since the case was remanded, which showed an increase in 

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

¶ 26 Sentencing Court’s Resentencing Order 

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

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

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

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

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

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

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

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

under the age of 18. 

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

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

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

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

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

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

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

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

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

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

course in men’s health, the Second Chance Program, Mindfulness for Beginners training, writing 
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workshops, and Introduction to Chicago History. The court explained that he passed the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

court stated that there was “no outside pressure from anyone, no peer or family pressure, no egging 
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[Aguilar] on to fire his gun multiple times at people who were running away from him.” The court 

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

acted. 

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

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

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

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

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

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

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

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

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

that Aguilar’s family members frequently visited him. 

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

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

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

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

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

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

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

while an adult, which this court considers aggravation.”

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

about his rehabilitative potential, the court explained that while awaiting sentencing, he expressed 
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remorse and that he wanted to obtain a GED, attend rehabilitative programs, and be a better father 

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

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

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

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

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

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

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

a problem with alcohol. 

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

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

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

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

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

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

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

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

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

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

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

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

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

culpability of youthful offenders, hallmark features of youth, and any subsequent growth and 
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maturity of a youthful offender during incarceration.” The court then concluded that the 

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

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

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

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

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

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

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

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

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

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

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

pummeling over inmates.”

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

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

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

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

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

¶ 39 II. ANALYSIS

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

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

Illinois Constitution. He asserts the sentencing court imposed the de facto life sentence without 
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making a finding that he was permanently incorrigible and after making the express finding that 

he was “not permanently incorrigible.” 

¶ 41 Eighth Amendment 

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

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

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

Miller, 567 U.S. at 465; U.S. Const., amend. VIII. The court reasoned that a mandatory sentencing 

scheme prevents a court from considering a juvenile offender’s “age and the wealth of 

characteristics attendant to it,” including “immaturity, impetuosity, and failure to appreciate risks 

and consequences.” Id. at 465, 471, 476-77. The court explained that “children are constitutionally 

different from adults for purposes of sentencing” and are “ ‘less deserving of the most severe 

punishments,’ ” as they “have diminished culpability and greater prospects for reform.” Id. at 471 

(quoting Graham v. Florida, 560 U.S. 48, 68 (2010)). Under Miller, “sentences must be based on 

a process employing judicial discretion rather than statutory mandates” and “sentencing courts 

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

irrevocably sentencing them to a lifetime in prison.’ ” People v. Wilson, 2023 IL 127666, ¶ 27 

(quoting Miller, 567 U.S. at 480). Later, in Montgomery v. Louisiana, the court stated that under 

Miller, a life sentence without parole is barred “for all but the rarest of juvenile offenders, those 

whose crimes reflect permanent incorrigibility” and “those rare children whose crimes reflect 

irreparable corruption.” 577 U.S. 190, 209-10 (2016); Wilson, 2023 IL 127666, ¶ 28. Then, in 

Jones v. Mississippi, the United States Supreme Court explained that, before a sentencing court 

imposes a life sentence without parole, Miller does not require a sentencing court “to make a 

separate finding of permanent incorrigibility.” 593 U.S. at __, 141 S. Ct. at 1316 . 
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¶ 43 Illinois codified the factors set forth in Miller in section 5-4.5-105(a) of the Code, 

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

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

105(a) (West 2016)). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

into account how an offender’s youth and attendant circumstances ‘counsel against irrevocably 
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sentencing them to a lifetime in prison.’ ” Wilson, 2023 IL 127666, ¶ 27 (quoting Miller, 567 U.S. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2023 IL App (2d) 220066, ¶ 38, pet. for leave to appeal pending, No. 129863 (filed August 31, 

2023). 

¶ 47 Here, we initially note that in Aguilar’s opening brief, he argues that under Holman, 

his 50-year sentence violates the eighth amendment because the court did not make a finding that 

he was permanently incorrigible. However, as previously discussed, after Aguilar filed his opening 

brief, our supreme court issued Wilson, which overruled Holman’s conclusion that a trial court is 

required to make a separate finding of permanent incorrigibility before it sentences a juvenile to a 

discretionary life sentence. Wilson, 2023 IL 127666, ¶¶ 41-42; People v. Morris, 2023 IL App 
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(1st) 220035, ¶ 3. In Aguilar’s reply brief and petition for rehearing, he asserts that Wilson’s

holding that a sentencing court is not required to make a permanent incorrigibility finding before 

imposing a de facto life sentence does not apply because, unlike Wilson where the sentencing court 

made no finding that the defendant was “neither incorrigible nor irredeemable,” the sentencing

court here made the express finding that he was “not permanently incorrigible.” See Wilson, 2023 

IL 127666, ¶ 43. We agree that Wilson is distinguishable from the instant case because the 

sentencing court made the finding that Aguilar was “not permanently incorrigible,” but 

nevertheless find that Aguilar’s sentence does not violate either the eighth amendment or the 

proportionate penalties clause. 

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

eighth amendment because the sentencing court imposed the sentence after making the finding 

that he was “not permanently incorrigible.” Under both the eighth amendment and the 

proportionate penalties clause, “a juvenile defendant must make the same threshold showing: his 

or her sentence is a life sentence or de facto life sentence.” People v. Hill, 2022 IL App (1st) 

171739-B, ¶ 42. Here, under the parole statute for juvenile offenders under the age of 21 (730 

ILCS 5/5-4.5-115(b) (West 2022)), Aguilar will be eligible for release before serving more than

40 years, or the equivalent of a life sentence, and therefore he did not receive a de facto life 

sentence in violation of the eighth amendment.

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

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

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

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

facto life sentence.” Id. The United States Supreme Court has held that “[a] State is not required 
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to guarantee eventual freedom, but must impose a sentence that provides some meaningful 

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

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

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

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

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

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

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

explained that in Montgomery, the Supreme Court “explained that ‘parole ensures that juveniles 

whose crimes reflected only transient immaturity—and who have since matured—will not be 

forced to serve a disproportionate sentence in violation of the Eighth Amendment.’ ” People v.

Beck, 2021 IL App (5th) 200252, ¶ 24 (quoting Montgomery, 577 U.S. at 212). The fifth district

further explained that “providing an opportunity to obtain parole remedies the constitutional 

violation of imposing a life sentence on a juvenile offender, as it resolves the primary concern of 

Graham—that a juvenile may one day change and reenter society.” Id. 

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

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

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

2022). Here, the parole statute applies to Aguilar, as he was 17 years old at the time of the offense, 

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

statute, therefore, Aguilar will be eligible for parole and will have the opportunity to seek release 

before serving 40 years. See 730 ILCS 5/5-4.5-115(b) (West 2022). 
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18 

¶ 51 When the sentencing court imposed the 50-year sentence and found that Aguilar was 

not permanently incorrigible, it also considered that he would be eligible for parole under the 

parole statute, and it stated that Aguilar has the “possibility of release after serving 20 years, upon 

a showing of his growth and maturity during incarceration.” Because Aguilar will be eligible for 

parole before serving 40 years of his sentence, he did not receive a de facto life sentence without 

the possibility of parole in violation of the eighth amendment and Miller. See Cavazos, 2023 IL 

App (2d) 220066, ¶¶ 46, 48, 60 (the court concluded the 17-year-old defendant’s 50-year sentence 

was not a life sentence and did not violate Miller or the eighth amendment, finding that the 

defendant would be eligible for parole after serving 20 years and before serving a de facto life 

sentence of over 40 years); People v. Elliott, 2022 IL App (1st) 192294, ¶ 56 (concluding that the 

defendant’s 70-year sentence was not a de facto life sentence since he will be eligible for parole 

after serving 20 years of his sentence); see also Hill, 2022 IL App (1st) 171739-B, ¶ 42 (concluding 

that the defendant was not serving a de facto life sentence “so neither the United States nor the 

Illinois Constitution has any work to do”). 

¶ 52 Aguilar contends that his sentence is a de facto life term and implicates Miller and 

Holman because Illinois’s parole statute for individuals under the age of 21 does not provide him 

a “meaningful opportunity to obtain release” based on his demonstrated maturity and rehabilitation 

as required by Miller. He asserts that the parole statute’s limitations for juvenile homicide 

offenders shows that his de facto life term is disproportionate without a finding that he was 

permanently incorrigible. Aguilar argues that the parole statute does not provide a meaningful 

opportunity for release because Illinois’s limitations fall outside of the country’s evolving standard 

of decency. He takes issue with the parole statute’s requirements that a juvenile homicide offender 

must serve 20 years before applying for parole, the offender must wait 10 additional years for the 
No. 1-22-0470 

19 

second review if the first attempt is denied, and, if the second attempt is denied, the offender is 

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

also contends that the parole rules conflict with Miller’s findings about juvenile offenders’ 

culpability and rehabilitative potential. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and its mandates, as well as, presumptively, the processes used by other states. While we 
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20 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

juveniles and young adults.” Id. 

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

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

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

over 40 years in prison. See Cavazos, 2023 IL App (2d) 220066, ¶¶ 48, 60, 64 (concluding that the 

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

and rehabilitation, before serving a de facto life sentence of over 40 years’ imprisonment” and 

rejecting the defendant’s argument that he received a de facto life sentence because the court did 
No. 1-22-0470 

21 

not make a finding of permanent incorrigibility); Kendrick 2023 IL App (3d) 200127, ¶ 43 

(concluding that the 19-year-old defendant’s 60-year sentence was not a de facto life sentence and 

finding that he “has a reasonable opportunity to obtain release well before serving more than 40 

years in prison”). 

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

People v. Gates, 2023 IL App (1st) 211422, pet. for leave to appeal pending, No. 130271 (filed 

April 4, 2024), a recent decision by a division in this court. In Gates, the court found that, although 

the defendant, who was 18 years old at the time of the offense and sentenced to 48 years, could be 

eligible for parole after serving 20 years under the parole statute, “the possibility for parole does 

not preclude [the defendant] from serving a de facto life sentence.” Id. ¶ 70. It concluded that the 

“parole scheme does not afford offenders like [the defendant] access to the courts or a meaningful 

opportunity for release and cannot be used to remedy a de facto life sentence that violates the 

proportionate penalties clause.” Id. ¶¶ 36-49. In doing so, the court found that our supreme court’s 

decision in Dorsey, which held that good-conduct credit is relevant to the determining of what 

constitutes a de facto life sentence for a juvenile offender (Dorsey, 2021 IL 123010, ¶ 1), was

inapplicable. Gates, 2023 IL App (1st) 211422, ¶ 41. It noted that Dorsey “focused on the ‘power’ 

that inmates have to shorten their sentence because their behavior, not a subjective board 

determination, determines whether a day is counted towards sentence.” Id. (citing Dorsey, 2021 

IL 123010, ¶¶ 52-53). 

¶ 58 In Dorsey, however, the supreme court equated the parole statute with the goodconduct statutory scheme. Dorsey, 2021 IL 123010, ¶¶ 53-54; Gates, 2023 IL App (1st) 211422, 

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

conduct credit in that, under either, ‘it is in a defendant’s power to shorten his sentence.’ ” (quoting 
No. 1-22-0470 

22 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

decision in Gates. See O’Casek v. Children’s Home and Aid Society of Illinois, 229 Ill. 2d 421, 
No. 1-22-0470 

23 

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

other districts divisions, or panels”). 

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

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

previously discussed, the parole statute “allows the Board to assess and weigh youth, its attendant 

circumstances, demonstrated maturity, rehabilitation, and all parole release factors in a manner or 

through a ‘lens’ compliant with Graham and Miller.” (Emphasis in original.) Cavazos, 2023 IL 

App (2d) 220066, ¶ 59; see 730 ILCS 5/5-4.5-115(j) (West 2022). If the Board does not consider 

his youth and attendant circumstances or his demonstrated maturity and rehabilitation, then the 

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

that the parole statute provides a meaningful opportunity for release, the court stated that, “we are 

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

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

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

(Emphasis in original.)

¶ 60 Proportionate Penalties Clause of the Illinois Constitution

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

years old is a de facto life sentence and therefore unconstitutional on its face under the 

proportionate penalties clause of the Illinois Constitution. 

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

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

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

if the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense 
No. 1-22-0470 

24 

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

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

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

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

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

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

¶ 63 In Aguilar’s opening brief, he asserts that Holman’srequirement that a court must make

a permanent incorrigibility finding before imposing a life sentence, should also apply under the 

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

clause because it was imposed without the sentencing court making this finding. As previously 

discussed, in Wilson, which was issued after Aguilar filed his opening brief, our supreme court 

overruled Holman’s requirement that a sentencing court must make a finding that the juvenile 

offender is permanently incorrigible before imposing a life sentence. Wilson, 2023 IL 12766, ¶ 42; 

see Cavazos, 2023 IL App (2d) 220066, ¶ 64 (“Again, Holman’s requirement that there be a 

permanent incorrigibility finding has now been overruled.”). 

¶ 64 In Aguilar’s reply brief, he argues that Wilson, which addressed the eighth amendment,

did not answer the question whether the proportionate penalties clause requires a permanent 

incorrigibility finding and asserts that the Illinois Constitution is more expansive than the eighth 

amendment. As previously discussed, Aguilar also asserts that Wilson is inapplicable here where 

the court made the express finding that he was “not permanently incorrigible.” He asserts that his 

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

life sentence while making the findings that he was amenable to rehabilitation and “not 

permanently incorrigible.”
No. 1-22-0470 

25 

¶ 65 For Aguilar’s proportionate penalties clause claim, like his eighth amendment claim, 

he also must “make the same threshold showing: his or her sentence is a life sentence or de facto

life sentence.” Hill, 2022 IL App (1st) 171739-B, ¶ 42. As previously discussed, Aguilar did not 

receive a de facto life sentence because he will have a meaningful opportunity for release after 

serving 20 years and before serving more than 40 years, or the equivalent of a life sentence. See

Elliott, 2022 IL App (1st) 192294, ¶ 56; Kendrick 2023 IL App (3d) 200127, ¶ 43 (concluding that 

the 19-year-old defendant’s 60-year sentence was not a de facto life sentence and finding that he 

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

Because Aguilar will be eligible for parole before serving more than 40 years, he did not receive 

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

penalties clause. See Cavazos, 2023 IL App (2d) 220066, ¶ 64. 

¶ 66 Further, in Cavazos, the court rejected the defendant’s argument that his 50-year 

sentence violated the proportionate penalties clause because the sentencing court failed to make a 

permanent incorrigibility finding. Cavazos, 2023 IL App (2d) 220066, ¶¶ 61-64. The court 

reasoned that the defendant did not receive a life sentence because he would be eligible for parole

“before serving the equivalent of a life sentence” and would have “two meaningful opportunities 

to seek release prior to serving more than 40 years” in prison. Id. ¶ 64. The court concluded 

therefore that “even if, theoretically, Holman’s requirement for an incorrigibility finding had 

remained valid, and a failure to issue one might have violated the proportionate penalties clause,” 

there was no violation where the defendant would be “eligible for parole before serving the 

equivalent of a life sentence.” (Emphasis in original.) Id. 

¶ 67 Likewise, here, even if we assume that Holman’s conclusion that a sentencing court 

must make a permanent incorrigibility finding before imposing a life term still applied under the 
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26 

proportionate penalties clause, it would not apply here, as Aguilar will be eligible for parole before 

serving a de facto life sentence. We therefore disagree with Aguilar’s argument that his 50-year 

sentence violates the proportionate penalties clause because the sentencing court imposed a de 

facto life term without making a permanently incorrigibility finding and with making the express

finding that he was “not permanently incorrigible.” See id. ¶ 64 (where the trial court did not make 

a permanent incorrigibility finding the defendant’s 50-year sentence did not violate the 

proportionate penalties clause). Aguilar’s parole eligibility reflects the sentencing court’s findings 

that he is not permanently incorrigible and is amenable to rehabilitation. 

¶ 68 Trial Court’s Findings and Miller

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

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

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

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

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

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

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

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

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

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

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

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

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

constitutional framework he sets forth,” as he was not sentenced to life without parole). 
No. 1-22-0470 

27 

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

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

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

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

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

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

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

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

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

potential for rehabilitation. 

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

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

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

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

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

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

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

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

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

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

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

differently”). 

¶ 73 Excessive Sentence
No. 1-22-0470 

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

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

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

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

¶ 75 The Illinois Constitution provides that “[a]ll penalties shall be determined both 

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

citizenship.” Ill. Const. 1970, art. I, § 11; Hill, 2022 IL App (1st) 171739-B, ¶ 45. “This 

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

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

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

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

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

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

3d 96, 109 (2002)). 

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

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

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

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

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

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

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

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

Villalobos, 2020 IL App (1st) 171512, ¶ 72. We review an excessive sentence claim for an abuse 
No. 1-22-0470 

29 

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

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

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

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

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

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

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

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

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

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

presumed to be proper”). 

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

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

court overlooked the mitigation evidence. 

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

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

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

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

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

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

(“the trial court need not articulate each factor it considers in rendering the sentence for 

a juvenile offender, and that omission does not mean the trial court did not consider all relevant 

factors”). In addition, we find that Aguilar’s argument that the court “overlooked” critical
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30 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

consider the relevant mitigating factors. 

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

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

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

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

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

challenge the mitigation evidence presented as well as the weight and assessment that a defendant 
No. 1-22-0470 

31 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

required to give more weight to Aguilar’s rehabilitative potential than to the seriousness of the 
No. 1-22-0470 

32 

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

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

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

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

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

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

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

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

whole”). 

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

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

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

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

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

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

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

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

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

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

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

the offense”). 

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

discretion when it resentenced Aguilar to 50 years in prison. 
No. 1-22-0470 

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¶ 87 III. CONCLUSION 

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

¶ 89 Affirmed.