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 ILL INOIS , ) ) 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 20 22 )) . 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 himNo. 1 -22-0470

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 co ntends 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. Aguil ar , 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 the m a question about what gang they were in and some of them responded that they were not in a gang.No. 1 -22-0470

3 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 offic er 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 inciden t. Aguilar attached affidavits to support his petition, including an affidavit from Priscila Pernillo, who was Aguilar’s girlfriendNo. 1 -22-0470

4 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 th e 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 M iller , 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 moth er, 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 di smiss 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 eighthNo. 1 -22-0470

5 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 di scussed 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 req uires 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

ex hibits, 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 vic tim impact statements. ¶ 17 Mitigation EvidenceNo. 1 -22-0470

6 ¶ 18 D efense counsel presented a defense mitigation report prepared by Helen Kim Skinner, JD, M SW , a mitigation specialist

. The report explained the history of abuse Aguilar ex perienced 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 Detentio n 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 offen se, 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 containedNo. 1 -22-0470

7 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 I n 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 fire d 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 mandato ry as it was at the original sentencing

. ¶ 25 I n 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 Ag uilar’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 attentive ness 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 CookNo. 1 -22-0470

8 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 IDO C 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 offen se 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 all ocu tion, 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 Aguila r 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 sh ots 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, writingNo. 1 -22-0470

9 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 In stitute 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 a n 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 o f the evolving law on juvenile sentencing, including summaries of Miller , People v. Holman , 2017 IL 120655, Peop le 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 a ct.” 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 s tated that there was “ no outside pressure from anyone, no peer or family pressure, no eggingNo. 1 -22-0470

10 [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 t he 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 sa les, 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 demon strated conflicting information about his rehabilitative potential, the court explained that while awaiting sentencing , he expressedNo. 1 -22-0470

11 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 andNo. 1 -22-0470

12 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 f acto life sentence withoutNo. 1 -22-0470

13 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 punishment s ’ .” 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 -7 7. The court explained that “children are constitutionally different from adults for purposes of sentencing” and are “ ‘less deserving of the most severe punishmen ts,’ ” 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 ‘coun sel against irrevocably sentencing them to a lifetime in prison. ’ ” People v. Wilson , 2023 IL 127666, ¶ 2 7 (quoting Miller , 567 U.S. at 4 80). Later, in Montgomery v. Louisiana , the court stated that under Miller , a life sentence without parole is barred “f or 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 d oes not require a sentencing court “to make a separate finding of permanent inc orrigibility.” 593 U.S. at __, 141 S. Ct. at 1316 .No. 1 -22-0470

14 ¶ 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 (1 st ) 192294, ¶ 53 (citing Reyes , 2016 IL 119271, ¶ 9) . A de facto life sentence has been defined a s 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 possib ility 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 requ ired 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 (1 st ) 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 mu st take into account how an offender’s youth and attendant circumstances ‘counsel against irrevocablyNo. 1 -22-0470

15 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 al so ‘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 argue s that under Holman , his 50

- year sentence violate s the eighth amendment because the court did not make a finding that he was permanently incorrigible

. However, a s 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 discretiona ry life sentence. Wilson , 2023 IL 127666, ¶¶ 41 -42; People v. Morris , 2023 IL AppNo. 1 -22-0470

16 (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 incorrigi ble 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 find ing 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 permanent ly incorrigible.” U nder 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 (1 st ) 171739- B, ¶ 42. Here, u nder 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 fa cto 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 requiredNo. 1 -22-0470

17 to guarantee eventual freedom, but must impose a sentence that provid es 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 . I n 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 IL CS 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. U nder the parole
statute , therefore , Aguilar wi ll 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).No. 1 -22-0470

18 ¶ 51 When the sentencing court imposed the 50

- year sentence and found that Aguilar was not permanently incorrigible , it al so 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.” B ecause Aguilar will be eligibl e 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 eight h amendment , finding th at the defendant would be eligible for parole after serving 20 years and before serving a de facto life

s entence of over 40 years ); People v. Elliott , 2022 IL App (1 st ) 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 (1 st ) 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 impli cates 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 theNo. 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 rul es 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 fact o 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, ful ly 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 parol e 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, u nder 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 weNo. 1 -22-0470

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 p arole ,” no ting that “with eligibility for parole, [the defendant] may obtain release upon demonstrated rehabilitation and maturity upon serving 40 or fewer years.” 2022 IL App (1 st ) 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 , 6 4 ( 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 didNo. 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 authorit y 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 “paro le 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 co urt 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 good

conduct statutory scheme. Dorsey , 2021 IL 123010 , ¶¶ 53-54; Gates , 2023 IL App (1st) 211422, ¶ 79 ( Coghlan , J., dissenting) (stating that in Dorsey “our supreme court equated parole with good conduct credit in that, under either, ‘it is in a defendant’s power to shorten his sentence.’ ” (quotingNo. 1 -22-0470

22 Dorsey , 2021 IL 123010, ¶¶ 53- 54)). In Dorsey , the court also rejected the defenda nt’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 likewis e 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 opportun ity 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 i n 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 H ome 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 serv es 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, t he 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 consi der 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 opportuni ty 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 proportion ate 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 pena lties clause if the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offenseNo. 1 -22-0470

24 as to shock the moral sense of the community.” People v. Ruddock, 2022 IL App (1 st ) 173023, ¶
70. Further, “[o]ur supreme court has explained t

hat 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 ’s requirement that a court must make
a permanen t 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 m aking this finding . A s 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;

s ee Cavazos , 2023 IL App (2d) 220066 , ¶ 64 (“Again, Holman ’s requirement that ther e 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 require s a permanent incorrig ibility 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 inc orrigible.” 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 F or Aguilar’s prop ortionate 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 (1 st ) 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 (1 st ) 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 priso n ”)

. 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, i n 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 incorrigib il it y 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 servin g 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, e ven if we assume that Holman ’s conclusion that a sentencing court
must make a perm anent incorrigib ility finding before imposing a life term still applied under theNo. 1 -22-0470

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 sent encing 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 Unite d 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. ¶ 6 8

. However, a s previously discussed, Aguilar was not sentenced to life without parol e. See id. (reject ing 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 f ramework 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 u nder s ection 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 s et 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 st atement in allocation , and the testimony. The court also expressly stated that it found Aguilar’s youth and attendant im maturity 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 (re ject ing 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 it s judgment for that of the trial court merely because it would have weighed the factors differently”). ¶ 73 Excessive SentenceNo. 1 -22-0470

28 ¶ 74 Aguilar contends that his sentence is excessive in light of his youth, significantly diminish ed 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 relationship s , 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, t he 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 abuseNo. 1 -22-0470

29 of discretion. Snyder , 2011 IL 11 1382, ¶ 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 I LCS 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 (“w hen a sentence falls within the statutory guidelines, it is presumed to be proper”)

. ¶ 78 Agu ilar nevertheless argues that his sentence is excessive when compared to the overwh elming mitigation evidence presented at the resentencing hearing . He also argues that the
court o verlooked 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 (“ ‘W here 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. Merriweathe r , 2022 IL App (4th) 210498, ¶ 31 ( “t he 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 fin d that Aguilar’s argument that the court “overlooked” criticalNo. 1 -22-0470

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 conten d s tha t we should remand for res entencing because the court misconstrued the mitigation evidence. He asserts that the court incorrectly found that Aguilar provided conflicting and inconsistent information about his family relationship s, substance abuse, the phys ical 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 r egarding his family history, gang involvement, rehabilitation, and substance abuse, that were contained in the PSI and defen se 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 impr oper 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 defend antNo. 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 “i t 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, t he 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

. T he 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 acknowle dged his potential for rehabilitation. However, t he court was not required to give more weight to Aguilar’s rehabilitative potential than to the seriousness of theNo. 1 -22-0470

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

r ehabilitative 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 “ militate s 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

33 ¶ 87 III. CONCLUSION ¶ 88 For the foregoing reasons, we affirm the circuit court’s judgment. ¶ 89 Affirmed.