Illinois Official Reports

Appellate Court

People v. Nieto, 2020 IL App (1st) 121604-B

Appellate Court 

Caption

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

MICHAEL NIETO, Defendant-Appellant.

District & No. First District, Second Division 

No. 1-12-1604

Filed June 30, 2020

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 06-CR-4475; the 

Hon. Rosemary Grant Higgins, Judge, presiding.

Judgment Affirmed in part and vacated in part.

Cause remanded with directions. 

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Jeffrey Svehla, of State 

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

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

Tasha-Marie Kelly, and Lori M. Rosen, Assistant State’s Attorneys, 

of counsel), for the People.

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

Justices Pucinski and Coghlan concurred in the judgment and opinion.
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OPINION

¶ 1 Defendant Michael Nieto appeals from the trial court’s order summarily dismissing his 

pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 

2012)). On appeal, defendant argues that his sentence is unconstitutional as applied under the 

eighth amendment to the United States Constitution (U.S. Const., amend. VIII), and Illinois’s 

proportionate penalties clause (Ill. Const. 1970, art. I, § 11). In our original opinion, we vacated 

defendant’s sentence and remanded for resentencing pursuant to Miller v. Alabama, 567 U.S. 

460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). We affirmed the judgment in 

all other respects. 

¶ 2 Four years later, our supreme court denied the State’s petition for leave to appeal but 

directed us to vacate our prior judgment and 

“consider the effect of this Court’s opinions in People v. Buffer, 2019 IL 122327, and 

People v. Holman, 2017 IL 120655, on the issue of whether defendant’s sentence 

constitutes a de facto life sentence in violation of the Eighth Amendment and Miller v. 

Alabama, 567 U.S. 460 (2012), and determine if a different result is warranted.” People 

v. Nieto, No. 120826 (Ill. Mar. 25, 2020) (supervisory order).

Having already vacated our prior judgment, we now consider the matter in light of Buffer and 

Holman and find that the same result is warranted.1

¶ 3 I. BACKGROUND

¶ 4 A. Trial

¶ 5 The evidence presented at defendant’s jury trial generally showed that on July 14, 2005, 

defendant, age 17, was riding in a black Ford Expedition with three other Latin Kings. While 

in a residential neighborhood, the young men encountered a red Jeep Cherokee whose 

occupants, victim Richard Soria and victim Israel Fernandez, allegedly used a sign 

disrespecting the Latin Kings. The Ford chased the Jeep. Ultimately, defendant, the front-seat 

passenger, shot at the Jeep, fatally shooting Soria in the head and injuring Fernandez. 

Defendant subsequently told his brother-in-law that defendant had just “lit up some flakes” 

and that one victim received a “dome shot.” The jury found defendant guilty of the first degree 

murder of Soria and the aggravated battery with a firearm of Fernandez. Additionally, the jury 

found that defendant personally discharged a firearm that proximately caused Soria’s death.

¶ 6 B. Sentencing

¶ 7 The presentence investigative report (PSI) stated, among other things, that defendant’s 

highest level of education was the eighth grade. He was expelled from his freshman year of 

high school for fighting. In 2006, defendant failed the GED exam but planned to retake it and 

earn a business degree. Although defendant was unemployed, he had previously done some 

remodeling work and sold drugs to support himself.

¶ 8 According to the PSI, defendant stated that his father was in poor health, having been shot 

and stabbed at various times, and had been incarcerated for defendant’s entire life. Defendant 

also stated that he was primarily raised by his maternal grandmother because his mother was a 

1

Justice Coghlan has replaced Justice Mason, who retired while the State’s appeal was pending.
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drug addict. For two years, defendant and his mother lived with her boyfriend. Her boyfriend, 

however, decided he did not want defendant to live with them. As a result, defendant lived 

with his paternal grandfather in Texas, where he remained until 2002. At that time, defendant’s 

mother summoned him back to Chicago due to his grandmother’s poor health. Defendant 

received counseling after his grandmother’s death and believed that he could benefit from 

further counseling but had not requested it because it was “too much trouble.” Defendant 

subsequently lived with friends or on his own. Defendant also reported that his only friend 

happened to be a gang member with a criminal record. We note that defendant’s brother-inlaw testified that at the time of the offense, defendant occasionally lived with his family.

¶ 9 Defendant, who smoked marijuana daily, had committed armed robbery, attempted 

robbery, and possession of cannabis as a minor. Tragically, he had pending charges of 

involuntary manslaughter and reckless discharge of a firearm for accidentally killing his 

younger brother, Elias Nieto, on December 24, 2005, after the present offense.

¶ 10 At sentencing, Detective Robert Girardi testified he learned that defendant possessed a gun 

that jammed and then discharged, accidentally shooting Elias. Defendant held Elias’s hand on 

the way to the hospital and unsuccessfully tried to resuscitate him. Detective Girardi was 

informed that defendant had asked his mother to come to the police station, but she refused to 

see him. Following the detective’s testimony, the State presented the victim impact statements 

of Soria’s father, sister, and brother-in-law. The State argued that defendant deserved the 

maximum sentence available, while defense counsel argued that even the aggregate minimum 

sentence of 51 years would ensure that defendant would not be released until he was almost 70 

years old. 

¶ 11 The trial court stated that it considered all the evidence, arguments, and defendant’s 

offenses. In aggravation, the court found that defendant shouted gang slogans and used a 

firearm belonging to his gang to fire multiple times at unarmed victims, who were Satan 

Disciples. Additionally, no serious provocation was involved. Afterward, defendant told fellow 

gang members that he “lit up some flakes.” The court also found that defendant and his 

companions used police scanners to get information and avoid prosecution. The court further 

found that not only was defendant’s criminal conduct likely to recur, but it did recur, given the 

shooting of Elias. The court also observed that defendant blamed Elias for defendant’s own 

decision to tell the police that Satan Disciples shot Elias, which potentially caused the police 

to pursue rival gang members. Nonetheless, the court recognized defendant’s “considerable 

remorse for his brother’s death and regret at what he considered to be an accidental shooting.” 

¶ 12 With respect to gang activity, the court considered deterrence: 

“I do find that his ongoing criminal activity is an indication to this court that his 

gang, the Latin Kings, and the Satan Disciples as well, should know that this sentence 

is necessary to deter others from committing similar crimes. The use of gangs and gang 

violence for revenge, either on the Satan Disciples’ part or on the Latin Kings’ as a 

consequence of this action or Mr. Nieto’s action.” 

The court also rejected defense counsel’s suggestion that defendant lacked the opportunity to 

receive therapy. Instead, the court found the PSI showed he had the opportunity but decided it 

was too much trouble to take advantage of. The court further stated, “[h]is character and 

attitude as displayed over the course of his life does not indicate to me significant rehabilitative 

potential.”

¶ 13 With that said, the court also stated as follows:
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“I have taken into consideration your young age. I have taken into consideration 

the fact that everybody, no matter what crimes they commit, can do something to 

change their lives. You will have to do that something, Mr. Nieto, in the Illinois 

Department of Corrections. But you can do something. Perhaps you can work with the 

gangs there and somehow rectify the wrongs you did when you committed the murder 

of Richard Soria, [the aggravated battery with a firearm of] Israel Fernandez, and 

inadvertently the death of your own brother.

You can change it by pointing out to those people who perhaps will be able to 

someday walk the streets and advise them and work with the programs in the Illinois 

Department of Corrections to change their lives. You can be a pivotal person in that 

change if you are willing to do that. I do believe that there is something good in you. I 

don’t believe that on the streets you are capable of doing that good. I believe that the 

influence of the gangs and the strength and control they had over you in addition to 

your character did not permit you the opportunities that you will have in the Illinois 

Department of Corrections to help change somebody else’s life and maybe save a life 

or two.

I believe that when you are shaking your head you are doing it in a positive way, 

and that you can do something positive for your mother, for your brother, and rectify 

his death and somehow make good on that.” 

The court sentenced defendant to 35 years in prison for first degree murder, 25 years for the 

personal discharge of a firearm, and 18 years for aggravated battery with a firearm, all to be 

served consecutively for a total of 78 years. 

¶ 14 Defendant moved for the court to reconsider, given that he was only 17 years old on the 

date of the offense and would be required to serve 75.3 years of his sentence after receiving 

sentencing credit. Defendant argued that his sentence did not adequately reflect his potential 

for rehabilitation and restoration to useful citizenship. Furthermore, defendant argued that 

recent studies showed long prison sentences do not affect deterrence and that the court’s 

statement regarding sending a message to gang members was against the prevailing academic 

view. The court denied defendant’s motion.

¶ 15 C. Direct Appeal

¶ 16 We affirmed the judgment on direct appeal, rejecting, among other things, defendant’s 

assertion that his sentence was excessive. People v. Nieto, No. 1-09-0670 (2011) (unpublished 

order under Illinois Supreme Court Rule 23). Specifically, defendant argued that his 78-year 

sentence was the equivalent of a life sentence and negated the possibility of restoring him to 

useful citizenship. We stated, “[t]here is no dispute that this young man represents a rather 

tragic figure and that the arc of his life has been unredeemably sad.” Nonetheless, we adhered 

to the legal presumption that the trial court considered all mitigating evidence, absent any 

contrary indication. We did not, however, question whether the trial court was able to discern 

what factors were aggravating and mitigating. 

¶ 17 D. Petition Under the Act

¶ 18 On February 21, 2012, defendant filed a pro se petition under the Act, raising several 

claims not at issue here. The trial court summarily dismissed defendant’s petition on April 5, 
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2012, and defendant filed a timely notice of appeal. Subsequently, however, the United States 

Supreme Court held in Miller, 567 U.S. at 470, 476, 479, that the eighth amendment prohibits 

sentencing schemes that mandate the imposition of life sentences without parole even on 

juveniles who commit homicide. This is because mandatory life sentences prevent a trial court 

from considering the ways in which juveniles are constitutionally different from adults. Id. at 

474. This decision in Miller followed two other landmark cases involving sentencing 

requirements for juvenile offenders. Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding that 

the eighth amendment prohibits a trial court from imposing the death penalty where the 

offender was under 18 years of age when the offense was committed); Graham v. Florida, 560 

U.S. 48, 74 (2010) (prohibiting the imposition of a life sentence without parole on juveniles 

who did not commit homicide). On appeal, defendant asserts only that his sentence violates 

Miller.

¶ 19 II. ANALYSIS

¶ 20 A. The Act

¶ 21 The Act provides a method by which persons under criminal sentence in this state can 

assert that their convictions were the result of a substantial denial of their rights under the 

United States Constitution, the Illinois Constitution, or both. People v. Tate, 2012 IL 112214, 

¶ 8. The Act’s forfeiture rule, however, provides that “[a]ny claim of substantial denial of 

constitutional rights not raised in the original or an amended petition is waived.” (Internal 

quotation marks omitted.) People v. Williams, 2015 IL App (1st) 131359, ¶ 14 (quoting 725 

ILCS 5/122-3 (West 2012)). This rule is more than a suggestion, and appellate courts generally 

may not overlook forfeiture caused by a defendant’s failure to include an issue in his petition. 

Id.

¶ 22 B. Forfeiture

¶ 23 Defendant has conceded on appeal that he did not raise this as-applied constitutional 

challenge in his petition, which was filed prior to Miller. He also contends, however, that this 

particular claim is not subject to forfeiture. In our original opinion, we agreed, notwithstanding 

the State’s argument to the contrary. Although the supreme court’s mandate did not direct us 

to reconsider our prior finding that forfeiture does not apply, we observe that the opinions 

issued over the last four years would not have led us to a different determination.

¶ 24 1. Davis

¶ 25 Just as we did when addressing forfeiture in our initial opinion, we begin our tortuous 

journey with People v. Davis, 2014 IL 115595, a case that does not discuss forfeiture. There,

the defendant asserted, in a motion for leave to file a successive petition under the Act, that his 

mandatory life sentence was unconstitutional. The trial court, however, denied leave. Id. ¶ 9. 

While his appeal was pending, the decision in Miller was issued. Id. ¶ 10. The appellate court 

determined that Miller applied and granted the defendant relief. Id.

¶ 26 Before the supreme court, the defendant argued he could challenge, in a collateral 

proceeding, the statutory scheme requiring him to be sentenced to natural life in prison for a 

crime committed as a juvenile because Miller rendered his sentence void. Id. ¶¶ 4, 24. Our 

supreme court found that while a statute is void ab initio where facially unconstitutional, the 
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sentencing statute requiring the defendant to be sentenced to natural life in prison was not 

facially unconstitutional because it could be validly applied to adults. Id. ¶¶ 5, 25, 27, 30. 

¶ 27 Nonetheless, the court concluded that the mandatory term of natural life without parole 

was unconstitutional as applied to this juvenile defendant. Id. ¶ 43. Additionally, Miller applied 

retroactively to the defendant’s collateral proceeding because Miller created a new substantive 

rule. Id. ¶¶ 34, 38. Specifically, Miller placed a particular class of persons covered by the 

statute beyond the State’s power to impose a particular category of punishment. Id. ¶ 39. The 

supreme court also found the defendant established cause for not raising the claim in an earlier 

proceeding because Miller’s new substantive rule was not previously available. Id. ¶ 42.

¶ 28 2. Thompson

¶ 29 The following year, our supreme court issued its decision in People v. Thompson, 2015 IL 

118151. There, the defendant was convicted of two counts of first degree murder, committed 

when he was 19 years old, and was sentenced to natural life in prison. Id. ¶¶ 6-7. In contrast to 

the defendant in Davis, defendant Thompson’s petition, filed pursuant to section 2-1401 of the 

Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)), did not challenge the 

constitutionality of his sentence (Thompson, 2015 IL 118151, ¶¶ 13-14). The petition was 

dismissed on the State’s motion, and the defendant appealed, arguing for the first time that his 

sentence was unconstitutional as applied under Miller. Id. ¶¶ 15-17.

¶ 30 Before the supreme court, the defendant recognized that Miller expressly applied to minors 

under 18 years of age but argued that Miller’s policy concerns applied with equal force to a 

19-year-old. Id. ¶ 21. Additionally, the defendant argued that because his as-applied 

constitutional challenge constituted a challenge to a void judgment, he could raise it at any 

time. Id. ¶ 30.

¶ 31 Our supreme court observed that judgments are void where jurisdiction is lacking or where 

a judgment is based on a facially unconstitutional statute, which is void ab initio. Id. ¶¶ 31-32. 

The defendant’s as-applied challenge, however, fit within neither category. Id. ¶ 34. 

Additionally, the supreme court rejected the defendant’s assertion that it was illogical to permit 

a defendant to raise facial constitutional challenges to a sentence at any time but not as-applied 

challenges. Id. ¶¶ 35-36.

¶ 32 A facial challenge requires demonstrating that a statute is unconstitutional under any set of 

facts. Id. ¶ 36. But cf. People v. Harris, 2018 IL 121932, ¶ 53 (characterizing the defendant’s 

contention that Miller should extend to all young adults under age 21 as a facial challenge). In 

contrast, an as-applied challenge requires a showing that the statute is unconstitutional under 

the specific circumstances of the challenging party. Thompson, 2015 IL 118151, ¶ 36. As a 

result, “it is paramount that the record be sufficiently developed in terms of those facts and 

circumstances for purposes of appellate review.” Id. ¶ 37.

¶ 33 The supreme court found the record contained neither information about how science on 

juvenile maturity and brain development applied to the defendant’s case, nor any factual 

development of whether Miller’s rational should be extended to minors over 18 years old. Id.

¶ 38. Accordingly, “defendant forfeited his as-applied challenge to his sentence under Miller

by raising it for the first time on appeal.” Id. ¶ 39. This rationale would suggest that a defendant 

may overcome forfeiture where the record contains all facts necessary to review his as-applied 

challenge, raised for the first time on appeal.
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¶ 34 Moreover, the supreme court rejected the defendant’s reliance on People v. Luciano, 2013 

IL App (2d) 110792, and People v. Morfin, 2012 IL App (1st) 103568. Presumably, defendant 

Thompson relied on those cases because, in each instance, the defendant obtained relief where 

raising Miller for the first time on appeal. See People v. Thompson, 2014 IL App (1st) 121729-

U, ¶¶ 16, 18, 20-21.

¶ 35 In Luciano, the defendant, who committed murder at age 17, argued for the first time on 

appeal from the denial of his petition filed under the Act that his life sentence was 

unconstitutional as applied under Miller. Luciano, 2013 IL App (2d) 110792, ¶¶ 41, 46. The 

reviewing court found, contrary to Thompson, that even an as-applied sentencing challenge 

could be raised at any time. Id. ¶¶ 41, 46-48. The court ultimately granted the defendant relief. 

Id. ¶ 89. Additionally, the reviewing court in Morfin determined that Miller applied 

retroactively, although apparently, the State did not argue forfeiture in that case. Morfin, 2012 

IL App (1st) 103568, ¶¶ 11, 20, 56.

¶ 36 Despite that defendant Thompson relied on Luciano to support his contention that he could 

raise his as-applied challenge for the first time on appeal, as defendant Luciano did, our 

supreme court did not state that Luciano was wrong in that regard. Instead, Thompson

distinguished Luciano and Morfin on their merits: specifically, the defendants in those cases 

were minors, whereas the defendant in Thompson was not. See Thompson, 2015 IL 118151, 

¶ 43. We further observe that while Thompson found the appellate court’s holdings were 

consistent with Davis’s determination that Miller applies retroactively (id. ¶ 42), forfeiture 

presents a distinct legal issue. See, e.g., People v. Reed, 2014 IL App (1st) 122610, ¶ 94 

(addressing forfeiture and retroactivity as separate issues). 2 When considered as a whole, 

Thompson implies that forfeiture does not apply to juveniles’ as-applied eighth amendment 

challenges under Miller, notwithstanding the general rule prohibiting as-applied challenges 

raised for the first time on appeal. 

¶ 37 3. Montgomery

¶ 38 The United States Supreme Court in Montgomery then indicated that state courts must give 

Miller effect in collateral proceedings. The Court, like our supreme court in Davis, held that

Miller announced a substantive rule, which courts must apply retroactively. Montgomery, 577 

U.S. at 206. Specifically, substantive rules set forth categorical constitutional guarantees that 

place certain laws and punishments beyond the State’s power to impose. Id. at 200-01. The 

Court found that while Miller did not bar punishment for all juvenile offenders, it did bar life 

without parole for all but the rarest juvenile offender and, consequently, was substantive. 

Compare id. at 208, with Miller, 567 U.S. at 483 (“Our decision does not categorically bar a 

penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. 

Instead, it mandates only that a sentencer follow a certain process—considering an offender’s 

youth and attendant characteristics—before imposing a particular penalty.”). Additionally, the 

2

Retroactivity may, as a practical matter, preclude a finding of forfeiture or waiver. See, e.g., In re 

Rolandis G., 232 Ill. 2d 13, 28-29 (2008) (no forfeiture on direct appeal when new rule announced after 

the appeal was filed); see also People v. Stechly, 225 Ill. 2d 246, 268 (2007) (same); People v. 

Craighead, 2015 IL App (5th) 140468, ¶ 17 (finding the defendant showed cause and prejudice with 

regard to the Miller claim raised in a successive petition under the Act because Miller applies 

retroactively).
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Court found that Miller’s procedural component did not change the result, as substantive legal 

changes may, on occasion, be attended by a procedure permitting a prisoner to demonstrate 

that he falls within the category of persons no longer subject to punishment. Montgomery, 577 

U.S. at 209-10.

¶ 39 Moreover, when a new substantive rule of constitutional law controls a case’s outcome, 

state collateral review courts must give the rule retroactive effect. Id. at 199. A court lacks 

authority to leave in place a conviction or sentence that violates a substantive rule, regardless 

of whether the judgment became final before the rule was announced. Id. at 203. The Court 

further stated, “[i]f a State may not constitutionally insist that a prisoner remain in jail on 

federal habeas review, it may not constitutionally insist on the same result in its own 

postconviction proceedings.” Id. at 204.

¶ 40 Our original opinion found that after Davis and Montgomery, Miller clearly applies

retroactively to collateral proceedings. We also found, however, that Thompson and 

Montgomery suggested that Illinois’s procedural rules regarding forfeiture could not be applied 

to juvenile defendants raising Miller claims, emphasizing Montgomery’s unconditional finding 

that state courts lacked authority to leave intact a sentence that violates Miller.

¶ 41 4. Merriweather

¶ 42 Following our initial decision in this case, the Fourth District of this court disagreed. In 

People v. Merriweather, 2017 IL App (4th) 150407, ¶¶ 5, 14, the juvenile offender asserted 

for the first time on appeal from the denial of leave to file a successive postconviction petition 

that his 70-year sentence for first degree murder was a de facto life sentence that was 

unconstitutional as applied to him. The State argued, however, that the defendant could not 

first raise this as-applied constitutional challenge on appeal, and the reviewing court agreed. 

Id. ¶ 14. The court, relying on Thompson, noted the crucial differences generally observed 

between facial and as-applied challenges and disagreed with our original determination that

Thompson’s treatment of Luciano and Morfin supported overlooking forfeiture. Id. ¶¶ 15-19. 

The court did not, however, acknowledge Montgomery’s strongly worded statement that courts 

lack the authority to leave in place a sentence that violates Miller. See Montgomery, 577 U.S.

at 203. Furthermore, Merriweather did not identify any area in which the record before it was 

lacking. Consequently, we are not persuaded by Merriweather.

¶ 43 5. Holman

¶ 44 After Merriweather was decided, our supreme court issued People v. Holman, 2017 IL 

120655. There, the State argued that the defendant forfeited his as-applied Miller claim by, 

among other things, failing to raise it in his motion for leave to file a successive petition. Id.

¶ 27. The supreme court agreed with the defendant’s contention that the State had forfeited any 

forfeiture under the facts of that case but added that it would nonetheless have reached the 

merits of his claim. Id. ¶¶ 28-29.

¶ 45 The supreme court noted the differences between facial and as-applied challenges, but 

found that in Davis, the supreme court had “excused the defendant’s failure to raise an asapplied Miller claim sooner because the record was sufficiently developed to address that type 

of claim.” Id. ¶¶ 29-31. We note that Davis did not provide the explanation offered in Holman. 

We also note that neither Davis, nor Holman’s explanation of Davis, used the word forfeiture.
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¶ 46 In any event, Holman found that “Thompson instructs that a defendant must present an asapplied constitutional challenge to the trial court in order to create a sufficiently developed 

record. Davis creates a very narrow exception to that rule for an as-applied Miller claim for 

which the record is sufficiently developed for appellate review.” Id. ¶ 32. Because all necessary 

facts were in the record, and in the interests of judicial economy, the supreme court chose to 

address the merits of the defendant’s claim. Id.

¶ 47 This would seemingly suggest that forfeiture does not apply to a Miller claim where the 

record is sufficiently developed. Unfortunately, Holman expressly declined to resolve the 

appellate court’s dispute regarding whether forfeiture applies in those circumstances. Id. ¶ 32 

n.5. But cf. People v. Buffer, 2019 IL 122327, ¶ 29 (stating that clear, uniform, predictable, 

constitutional standards are especially desirable in the context of the eighth amendment). 

Consequently, Holman is a wash when it comes to forfeiture.

¶ 48 Under the present state of case law, we abide by our original determination. Miller was 

issued only after the circuit court dismissed defendant’s petition and the record is sufficiently 

complete to review defendant’s claim. We can conceive of no policy to be furthered by finding 

forfeiture occurred here. See also People v. Warren, 2016 IL App (1st) 090884-C, ¶¶ 48-49 

(finding that the reviewing court could grant the defendant relief despite raising his Miller

challenge for the first time on appeal from denial of leave to file his successive postconviction 

petition). We now address the merits of defendant’s claim.

¶ 49 C. Applying Miller

¶ 50 1. The Original Opinion 

¶ 51 When we issued our original opinion, several Miller-related questions had not been settled. 

We nonetheless found that a juvenile defendant’s sentences may cumulatively constitute a 

de facto life sentence under the eighth amendment. See People v. Gipson, 2015 IL App (1st) 

122451, ¶ 61. We also determined that following Montgomery, the requirements of Miller

applied to both mandatory and discretionary life sentences. Furthermore, we determined that 

defendant’s cumulative 78-year sentence constituted a discretionary, de facto life sentence, 

while noting that even the minimum cumulative sentence would have been 51 years in prison.3

Finally, we found that where the record affirmatively shows that the trial court, in imposing a 

life sentence on a juvenile, failed to comprehend the ways in which juveniles are 

constitutionally different from adults, the defendant is entitled to relief. More specifically, we 

found that while a trial court is not required to expressly make findings as to each youth-related 

factor identified by Miller, a defendant is entitled to relief where the record affirmatively 

indicates that the trial court has deviated from the principles discussed therein.

3

Defendant’s first degree murder conviction carried a sentencing range of 20 to 60 years. 730 ILCS 

5/5-8-1(a)(1)(a) (West 2006). That conviction was also subject to a mandatory, consecutive firearm 

enhancement of 25 years. Id. § 5-8-1(a)(1)(d)(iii). In addition, defendant’s Class X aggravated battery 

conviction required a sentence of between 6 and 30 years in prison. 720 ILCS 5/12-4.2(a)(1), (b) (West 

2006). Furthermore, defendant was required to serve consecutive sentences. See 730 ILCS 5/5-8-4(a) 

(West 2006) (stating that “[t]he court shall impose consecutive sentences if *** one of the offenses for 

which defendant was convicted was first degree murder or a Class X or Class 1 felony and the defendant 

inflicted severe bodily injury”).
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¶ 52 2. Subsequent Illinois Supreme Court Holdings

¶ 53 After our opinion was issued, the Illinois Supreme Court held in People v. Reyes, 2016 IL 

119271, ¶ 9 (per curiam), that “sentencing a juvenile offender to a mandatory term of years 

that is the functional equivalent of life without the possibility of parole constitutes cruel and 

unusual punishment in violation of the eighth amendment.” Thus, Reyes confirmed that Miller

applies to de facto life sentences. The supreme court subsequently concluded in Holman that 

“Miller applies to discretionary sentences of life without parole for juvenile defendants” and 

found that the trial court must specifically consider the characteristics of youth mentioned in 

Miller. Holman, 2017 IL 120655, ¶¶ 40, 43-44. Finally, Buffer succinctly set forth what a 

juvenile offender must do to prevail under Miller: The defendant must show that (1) he “was 

subject to a life sentence, mandatory or discretionary, natural or de facto,” and (2) the 

sentencing court failed to consider the unique characteristics attending youth. Buffer, 2019 IL 

122327, ¶ 27. The supreme court further clarified that a sentence of 40 years or greater 

constitutes a de facto life sentence without parole. Id. ¶ 40. 

¶ 54 3. Defendant’s Sentencing Hearing

¶ 55 Following Buffer, defendant’s cumulative 78-year sentence was indisputably a life 

sentence. Additionally, the record shows that the sentencing court failed to understand and 

consider the unique characteristics attending youth.

¶ 56 Life in prison without parole is disproportionate unless the juvenile defendant’s crime 

reflects irreparable corruption. Montgomery, 577 U.S. at 195. Sentencing courts must consider 

a child’s diminished culpability as well as his heightened capacity for change. Id. Children are 

immature, irresponsible, reckless, impulsive, and vulnerable to negative influence. Miller, 567 

U.S. at 471. Additionally, they lack control over their environment and the ability to extricate 

themselves from crime-producing circumstances. Id. Because a juvenile’s character is not well 

formed, his actions are less likely to demonstrate irretrievable depravity. Id. It follows that 

youth diminishes penological justifications: (1) reduced blameworthiness undermines 

retribution, (2) impetuosity undermines deterrence, and (3) ordinary adolescent development 

undermines the need for incapacitation. Id. at 472-73. Additionally, life without parole entirely 

negates the possibility of rehabilitation. Id. at 473.

¶ 57 Consequently, “Miller requires that before sentencing a juvenile to life without parole, the 

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

counsel against irrevocably sentencing them to a lifetime in prison.’ ” Montgomery, 577 U.S. 

at 208 (quoting Miller, 567 U.S. at 480). 

¶ 58 While we do not fault the trial court for failing to apply principles of law and science that 

had not yet been adopted by the Supreme Court, the trial court’s findings do not imply that it 

believed defendant was the rarest of juveniles whose crime showed that he was permanently 

incorrigible. The court clearly found that for the foreseeable future, defendant was likely to 

engage in further criminal conduct due to the Latin Kings’ influence over him and the tragic 

shooting of his brother. Given juveniles’ susceptibility to peer pressure and recklessness, this 

is hardly surprising. Yet, susceptibility to peer pressure and recklessness erode with age. 

Indeed, the trial court found that in the future, defendant could do something positive. 

Specifically, he could change his life and even help other gang members change their ways, 

albeit in prison. Additionally, the court found defendant’s sentence was necessary to deter not 

only him, but other gang members. We now know, however, that defendant’s sentence is not 
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likely to deter anyone. See id. (observing that deterrence is diminished in juvenile sentencing 

because juveniles’ recklessness, immaturity and impetuosity make them less likely to consider 

possible punishment). 

¶ 59 As we recognized on direct appeal, the trial court expressly considered defendant’s “young 

age.” See also People v. Holman, 2016 IL App (5th) 100587-B, ¶ 43 (observing that we 

presume the court considers mitigating evidence before it). With that said, the record shows 

that the court did not consider the corresponding characteristics of defendant’s youth.

¶ 60 In support of defendant’s sentence, the State notes the aggravating factors found by the 

trial court, defendant’s prior convictions, the unsatisfactory termination of probation, the death 

of his brother, his gang violence, his pride in announcing that he “lit up some flakes” and “hit 

a dome shot,” his use of police scanners, and his decision to shoot unarmed victims. Yet, 

examining these factors through the lenses of Miller may have led to a shorter sentence.

¶ 61 Under these circumstances, we vacate defendant’s sentence and remand for a new 

sentencing hearing. See Buffer, 2019 IL 122327, ¶ 47. In light of our determination, we need 

not consider defendant’s challenge under Illinois’s proportionate penalties clause. We also 

affirm the trial court’s dismissal of the claims raised in defendant’s petition, as he has 

abandoned those claims.

¶ 62 III. CONCLUSION

¶ 63 For the foregoing reasons, we vacate defendant’s sentence and remand for resentencing. 

The judgment is affirmed in all other respects.

¶ 64 Affirmed in part and vacated in part.

¶ 65 Cause remanded with directions.