2023 IL App (1st) 220636-U 

 THIRD DIVISION

August 23, 2023

No. 1-22-0636 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in 

the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

v. ) 

 ) 

ORVIN AGOSTO, ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of Cook County. 

No. 00 CR 15008

Honorable 

Ursula Walowski, 

Judge Presiding. 

JUSTICE D.B. WALKER delivered the judgment of the court. 

Presiding Justice McBride and Justice Reyes concurred in the judgment. 

 ORDER 

¶ 1 Held: Defendant’s sentence is not excessive and complies with all relevant statutes, 

constitutional provisions, and case law. Affirmed.

¶ 2 Following a bench trial, defendant Orvin Agosto was convicted of one count of first-degree 

murder and one count of attempted first-degree murder for the shooting death of Selustiano Correa. 

The trial court sentenced defendant to 56 years’ imprisonment, comprised of a 25-year sentence 

for first-degree murder, a then-mandatory 25-year add-on for having discharged a firearm that 

proximately caused the victim’s death, and a 6-year sentence for attempted murder. 
No. 1-22-0636 

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¶ 3 Defendant filed a postconviction petition challenging the sentence as unconstitutional 

under Miller v. Alabama, 567 U.S. 460 (2012), in violation of the eighth amendment to the United 

States Constitution (U.S. Const., amend. VIII). The trial court summarily dismissed the petition at 

the first stage proceedings. On appeal, this court reversed the dismissal, vacated defendant’s 

sentence, and remanded for resentencing in accordance with Miller, People v. Buffer, 2019 IL 

122327, and section 5-4.5-105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West 

2018)). Upon resentencing, the court vacated the firearm enhancement and sentenced defendant to 

36 years in prison, comprised of a 30-year sentence for first-degree murder and a 6-year sentence 

for attempted murder.

¶ 4 On appeal, defendant contends that his 36-year sentence is improper for the following 

reasons: (1) the resentencing hearing did not comply with the statutory mandate because the 

resentencing court refused to apply the mitigating factors of youth as mandated by section 5-4.5-

105(a) of the Code; (2) the 36-year sentence is excessive, considering the evidence in mitigation, 

and constitutes an abuse of judicial discretion; and (3) the resentencing court’s decision to increase 

defendant’s murder sentence from 25 to 30 years was unlawful under section 5-5-4(a) of the Code. 

We affirm. 

¶ 5 BACKGROUND

¶ 6 On the night of May 14, 2000, defendant Orvin Agosto, then 16 years old and a Latin Kings 

gang member, rode into rival LaRaza gang territory and fired two to three shots at 15-year-old 

Selustiano Correa and 16-year-old Rigoberto Toscano. Correa suffered a gunshot wound to the 

head and subsequently died on May 18, 2000. Toscano was uninjured. Shortly after the shooting 

took place, police took defendant into custody. Defendant confessed to the shooting. 
No. 1-22-0636 

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¶ 7 Defendant’s first trial resulted in a hung jury. Defendant was then tried in a bench trial and 

was found guilty of the first-degree murder of Correa and the attempted first-degree murder of 

Toscano. 

¶ 8 At defendant’s initial 2003 sentencing hearing, a presentence investigation report (PSI) 

was introduced into evidence that mentioned defendant’s “sometimes rough” childhood. The 

report described defendant’s mother as physically abusive and stated that defendant had not seen 

his biological father, who struggled with substance abuse and had contact with the criminal justice 

system, since he was eight years old. The report also mentioned that defendant was kicked out of 

the house by his mother at age 13. Thereafter, defendant joined the Latin Kings gang and began 

smoking marijuana and drinking regularly. Defendant stated in the report that he left the gang at 

age 19 because he realized it was “a dead-end street.” Additionally, the report stated that defendant 

received one year of probation for unlawful use of a weapon at age 14. 

¶ 9 In aggravation, the State presented a victim impact statement from Correa’s mother and 

argued that a severe sentence was necessary to deter others. The defense did not present additional 

evidence in mitigation but pointed to defendant’s rough childhood and indicated that he was 

working to obtain a GED, distancing himself from gangs, and becoming religious. In allocution, 

defendant said that he kept Correa’s family in his prayers but denied pulling the trigger. 

¶ 10 The trial court sentenced defendant to 56 years’ imprisonment. The sentence consisted of 

25 years for first-degree murder plus a 25-year then-mandatory enhancement for defendant’s 

personal discharge of a firearm resulting in the victim’s death, 6 years for attempted first-degree 

murder, and 4 years for aggravated discharge, to run concurrently with the attempted murder 

sentence. During sentencing, the trial court stated that it only imposed the firearm enhancement 
No. 1-22-0636 

4 

because it was required under the statute and that it believed the enhancement would be found 

unconstitutional. 

¶ 11 Defendant appealed, arguing that the firearm enhancement did not apply and that the trial 

court did not properly admonish him pursuant to Illinois Supreme Court Rule 605(a) (eff. Jan. 1, 

2023). This court held that he failed to preserve the enhancement argument but remanded the case 

for proper Rule 605(a) admonishments. See People v. Agosto, No. 1-03-3629 (May 27, 2005) 

(unpublished order under Supreme Court Rule 23). 

¶ 12 On remand, the trial court properly admonished defendant and issued a new mittimus. His 

aggregate sentence remained 56 years.

¶ 13 On April 30, 2018, defendant filed a pro se postconviction petition arguing that his 

sentence was unconstitutional under Miller. The petition was summarily dismissed by the trial 

court at first stage proceedings as frivolous and patently without merit. Defendant appealed, and 

on April 30, 2020, this court reversed the summary dismissal, vacated defendant’s sentence, and 

remanded for a new sentencing hearing in compliance with Buffer and section 5-4.5-105 of the 

Code. 

¶ 14 A resentencing hearing was held on April 31, 2022. At the hearing, the defense submitted 

a mitigation report based on interviews conducted with defendant’s family members. The report 

included interviews with his sister, Vanessa, who is one year his senior, his mother, Marjorie, and 

his mother’s sister, Brunilda. The report detailed defendant’s upbringing, discussing violent 

domestic abuse by his father, who was a Latin Kings gang member. Defendant’s father left when 

he was eight years old, but defendant continued to be abused by his mother and her violent 

boyfriends. 
No. 1-22-0636 

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¶ 15 The report also detailed how defendant’s mother expelled him and his sister from the house 

when he was 13 years old. Both defendant and his sister struggled with homelessness, with his 

sister sleeping in a car for a time. They kept in touch “even when they didn’t have cell phones,” 

but both were on their own to find housing. Defendant turned to the Latin Kings for support. He 

stayed with gang members, many of whom knew his father. Defendant eventually began 

participating in gang activities, such as selling marijuana and handling firearms. 

¶ 16 The mitigation report also listed defendant’s ACE score, which measures abuse, neglect, 

and other adverse childhood experiences. Defendant scored 8 out of 9, putting him in the 99th 

percentile of abuse victims who take this test. As a result, the report stated that the defendant was 

at significant risk of disrupted neurodevelopment and social, emotional, and cognitive impairment. 

¶ 17 A new PSI was also prepared for the resentencing. This report showed that defendant 

obtained his GED in prison in 2004 or 2005 but remained affiliated with the Latin Kings until age 

33. The defense also presented evidence that while awaiting resentencing in Cook County Jail, 

defendant participated in the Recipes for Change program (a culinary education program for 

inmates), was active in the arts program, and painted several murals within the correctional center. 

¶ 18 In aggravation, the State introduced defendant’s written disciplinary record from the 

Department of Corrections, which stated that defendant “was one of the main Latin King leaders” 

while in prison and that he remained a member throughout his time in the Department of 

Corrections. Defendant had 16 major infractions while incarcerated, six of which were gangrelated. Michael Magana, Deputy Commander of Northern Intelligence for the Department of 

Corrections, testified that defendant was consistently put in segregation, housed in special 

facilities, and received punishment reserved for the “most dangerous and violent inmates” and the 

“most influential gang members.” 
No. 1-22-0636 

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¶ 19 The State also challenged the mitigation report, arguing that the only people interviewed 

for the report were defendant’s family members. Additionally, nothing in the report was 

corroborated by medical records, school records, or Department of Children & Family Services 

(DCFS) records. The State also argued that there was little evidence of defendant’s rehabilitation 

efforts, and that they were mainly limited to his time awaiting resentencing in Cook County Jail. 

¶ 20 In allocution, defendant asked the resentencing court to consider his prison record in light 

of the dangerous environment and apologized to Correa’s mother. Defendant emphasized that he 

took advantage of the only educational opportunity provided by the facility by getting his GED. 

Defendant also noted that he continued to study independently using books that his family sent 

after he received his GED. Finally, defendant admitted that he remained involved in a gang for 

most of his time in prison but insisted that he eventually chose to leave the gang because his 

independent studies changed his “thought process.” 

¶ 21 After the hearing, defendant’s sentence was reduced to 36 years, consisting of 30 years for 

first-degree murder and 6 years for attempted murder. The resentencing court made the following 

findings: 

“I have reviewed as I stated the mitigation report, the additional exhibits, the 

presentence investigation, the prior filings, the prior court rulings. I reviewed the file, 

considered everything I must consider as far as aggravation and mitigation. I will not 

layout [sic] each factor as I don’t find that it’s -- that’s necessary, but I want to make a 

record that I have spent some time reviewing everything and now listening to the 

arguments. 

And I find that when I look at the case law, as both sides pointed out, I have to first 

start -- what I find I need to first start with is the enhancement because the enhancement 
No. 1-22-0636 

7 

is 25 years. It was added on top of the sentence. I find in this case that, now, the 

enhancement is discretionary as Mr. Orvin was 16 at the time and it is my decision 

whether or not to add the enhancement. 

I find based on everything that the enhancement is not appropriate. I have a problem 

with the enhancement because it automatically puts a 25-year mark as an addition to 

another sentence, and I don’t find that gives an opportunity for a judge to adjust 

anything as far as what a judge should as far as mitigation and aggravation. So I don’t 

find that the enhancement is appropriate. 

Now, having that said, I’m looking at a minimum of 20, where Judge Sumner gave 

25 and six, 20 on the murder and -- 25 on the murder and six on the attempt murder, 

which Judge Sumner gave. So I find that my next decision is whether or not I could go 

above that and I find I can because I could also go below that. That’s why we have a 

new sentencing hearing. That’s why I hear the additional mitigation that was presented 

by the defense and the additional aggravation because, now, at a resentencing, we’re at 

a spot where I get to consider what Mr. Agosto has done, how far he’s gotten, more 

mitigation of his background and his family life. 

So I do find that I can sentence above what Judge Sumner gave as far as the murder 

charge and the attempt murder charge as I could also sentence below. So, ultimately, 

having reviewed everything, Mr. Orvin, I appreciate what you said today because I 

appreciate that because I find that you did make progress and it’s taken you some time 

to make progress. 

A lot of the mitigation presented is your life up to the point where you got arrested, 

the horrors really of how you grew up. I find that was very similar to what Judge 
No. 1-22-0636 

8 

Sumner heard about, you know, as far as your mom. However, I do point out that there 

is family. Your sister was always close. Your mom’s sister was close. You did have 

family. 

I know you had no father and I know you had a mother with mental health issues 

that was also abusive, which caused you as a teenager, I believe, probably once you 

were in high school or even before, but I believe based on what I read in the mitigation 

report that once you were in high school, you were pretty much on your own. But you 

did have family that you could go to. 

However, what drew you was gang life. I find that a result of why you are here 

before me, well, again, is because of gang life. That’s what you chose as a high school 

student. It happens. But it is your decision. 

I understand arguments that are made that, well, because of the circumstances I’m 

in I really had no choice, I had to do it. I don’t find that’s true. Ultimately, to choose 

gang life and to choose to believe what others are telling you that are part of a gang, 

that is your decision and that’s what you made. Because of that decision, you got to a 

point where at 16, you’re shooting a gun and killing somebody, another young 

individual, where you put yourself in a position going into that gang life with somebody 

-- you could have gotten shot. So I understand that, but it is a choice that you have 

made.

And then I look at -- I look at the mitigation and a lot of it is about your upbringing 

and, you know, what happened up to the age of 16. But since then, since you were in 

jail, you have had family support, but the aggravation that I find that I heard about in 

jail is that you continued with the gang life in the jail. You told me yourself that it took 
No. 1-22-0636 

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you awhile. I think you said you were 28 when you realized how wrong of a choice that 

is to choose gang life, but you continued to make that choice in the jail. You have 

recently, I find, come to terms with how wrong, once again, that decision is. 

Once again, I understand the arguments, what you said. You did what you had to 

do. But it’s a choice you make to go in with the gang into the jail and then follow 

through with that in the jail, and that’s what you did for a long time. 

So taking everything into consideration, Mr. Agosto, as I stated before, I find the 

appropriate sentence is 30 years on the murder charge and six years on the attempt 

murder charge for a total of 36 years in the Illinois Department of Corrections.”

¶ 22 Defendant made no contemporaneous objection during the resentencing hearing. After the 

hearing, he filed a motion to reconsider the sentence which was denied. Defendant now appeals. 

¶ 23 JURISDICTION

¶ 24 The resentencing court sentenced defendant Orvin Agosto on April 13, 2022, and denied 

his motion to reconsider on May 3, 2022. Defendant filed a notice of appeal on the same day. 

Accordingly, this court has jurisdiction pursuant to Article VI, section 6, of the Illinois Constitution 

(Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Feb. 6, 2013) and 606 

(eff. January 1, 2023). 

¶ 25 ANALYSIS

¶ 26 On appeal, defendant argues that his 36-year sentence is improper for the following 

reasons: (1) the resentencing hearing did not comply with the statutory mandate because the 

resentencing court refused to apply the mitigating factors of youth as mandated by section 5-4.5-

105(a) of the Code; (2) the 36-year sentence is excessive, considering the evidence in mitigation, 

and constitutes an abuse of judicial discretion; and (3) the resentencing court’s decision to increase 
No. 1-22-0636 

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his murder sentence from 25 to 30 years was unlawful under section 5-5-4(a) of the Code (730 

ILCS 5/5-5-4 (West 2022)). 

¶ 27 Defendant asks this court to either reduce his 36-year sentence or remand for resentencing 

before a new judge. 

¶ 28 I. Forfeiture and Plain Error Review

¶ 29 Defendant has forfeited all three claims. “It is well settled that, to preserve a claim of 

sentencing error, both a contemporaneous objection and a written postsentencing motion raising 

the issue are required.” People v. Hillier, 237 Ill. 2d 539, 544 (2010). Because defendant did not 

object when the circuit court pronounced its findings and sentence, his claims are not properly 

preserved. 

¶ 30 Because the claims were forfeited, we can only review each issue under plain error, a 

“narrow and limited exception to the general waiver rule.” People v. Herron, 215 Ill. 2d 167, 177 

(2005). Defendant asks this court to review the issues under the plain error doctrine. 

¶ 31 “[T]he plain-error doctrine bypasses normal forfeiture principles and allows a reviewing 

court to consider unpreserved error when either (1) the evidence is close, regardless of the 

seriousness of the error, or (2) the error is serious, regardless of the closeness of the 

evidence.” People v. Herron, 215 Ill. 2d 167, 186–87 (2005). In the first instance, “the defendant 

must show both that there was plain error and that the evidence was so closely balanced that the 

error alone severely threatened to tip the scales of justice against him.” Id. at 187. In the second 

instance, “the defendant must prove there was plain error and that the error was so serious that it 

affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.” 

Id. Regardless, the defendant “has the burden of persuasion” and “must first show that a clear or 
No. 1-22-0636 

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obvious error occurred.” People v. Hillier, 237 Ill. 2d 539, 545 (2010). “If the defendant fails to 

meet his burden, the procedural default will be honored.” Id. 

¶ 32 The first step of our plain error analysis is to determine whether defendant has shown that 

any error occurred at all. People v. Walker, 232 Ill. 2d 113, 124 (2009). 

¶ 33 A. Whether the Youth Mitigation Factors Were Properly Considered and Applied

¶ 34 Defendant first argues that the resentencing court refused to apply the mitigating factors of 

youth, codified in section 5/5-4.5-105(a) of the Code, as ordered by this court. Whether the 

resentencing court failed to comply with this court’s mandate is a question of law that we review 

de novo. See People v. Payne, 2018 IL App (3d) 160105, ¶ 9. “A de novo review entails performing 

the same analysis a trial court would perform.” Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 

578 (2011).

¶ 35 Miller v. Alabama prohibited mandatory life sentences for juveniles and listed several 

factors courts must consider when sentencing juveniles to life sentences. Miller, 567 U.S. 460. The 

Illinois legislature later codified these factors in section 5-4.5-105(a), requiring a court to consider 

the following nine mitigating factors before sentencing a juvenile defendant: 

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

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

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

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

familial pressure, or negative influences;

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

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

(4) the person’s potential for rehabilitation or evidence of rehabilitation, or both;
No. 1-22-0636 

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(5) the circumstances of the offense;

(6) the person’s degree of participation and specific role in the offense, including 

the level of planning by the defendant before the offense;

(7) whether the person was able to meaningfully participate in his or her defense;

(8) the person’s prior juvenile or criminal history; and

(9) any other information the court finds relevant and reliable, including an 

expression of remorse, if appropriate. However, if the person, on advice of counsel 

chooses not to make a statement, the court shall not consider a lack of an expression of 

remorse as an aggravating factor.” 730 ILCS 5/5-4.5-105(a) (West 2022). See Buffer, 

2019 IL 122327, ¶ 36 (“This list is taken from and is consistent with Miller’s discussion 

of a juvenile defendant’s youth and its attendant characteristics.”); see also Miller, 567 

U.S. at 477-78. 

¶ 36 According to defendant, “the core issue” of this case “is not the judge’s failure to list the 

sentencing factors but rather the judge’s categorical rejection of at least two of the sentencing 

factors that applied to this case.” (Emphasis in original.) Specifically, defendant contends that the 

resentencing court “categorically rejected” the second and third factors, namely “whether the 

person was subjected to outside pressure, including peer pressure, familial pressure, or negative 

influences” and “the person's family, home environment, educational and social background, 

including any history of parental neglect, physical abuse, or other childhood trauma.” 730 ILCS 

5/5-4.5-105(a)(2), (3) (West 2022). We do not find this argument persuasive. 

¶ 37 “[B]ecause a trial court need not explicitly analyze each relevant factor or articulate the 

basis for the sentence imposed, when mitigating evidence is presented before the trial court, it is 

presumed that the court considered that evidence in imposing the defendant’s sentence.” People v.
No. 1-22-0636 

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Knox, 2014 IL App (1st) 120349, ¶ 46. See also People v. Burton, 184 Ill. 2d 1, 34 (1998) (“We 

presume that the circuit court considered any mitigating evidence before it, in the absence of some 

indication to the contrary, other than the sentence itself.”). 

¶ 38 During sentencing, the resentencing court stated that it “reviewed *** the mitigation report, 

the additional exhibits, the presentence investigation, the prior filings, the prior court rulings,” 

listened to the arguments, and “considered everything” the court “must consider as far as 

aggravation and mitigation.” No evidence in the record supports the claim that the resentencing

court refused to consider these factors. Rather, the resentencing court’s statement is sufficient 

evidence that it weighed the appropriate factors in its sentencing in compliance with the statutory 

mandate. 

¶ 39 Despite the resentencing court’s explicit statement to the contrary, defendant claims that 

the court “openly rejected the idea that” the defendant’s childhood, environment, and other outside 

forces “influenced Orvin’s actions.” To support this claim, defendant points to the following 

statement by the resentencing court during sentencing. 

“However, what drew you was gang life. I find that a result of why you are here before 

me, well, again, is because of gang life. That's what you chose as a high school student. 

It happens. But it is your decision.

I understand arguments that are made that, well, because of the circumstances I'm in I 

really had no choice, I had to do it. I don't find that's true. Ultimately, to choose gang 

life and to choose to believe what others are telling you that are part of a gang, that is 

your decision and that's what you made. Because of that decision, you got to a point 

where at 16, you're shooting a gun and killing somebody, another young individual, 
No. 1-22-0636 

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where you put yourself in a position going into that gang life with somebody -- you 

could have gotten shot. So I understand that, but it is a choice that you have made.”

¶ 40 Contrary to what defendant asserts in his reply brief, this passage does not prove that the 

resentencing court believed that “[defendant’s] circumstances *** were unconnected to how 

[defendant] ended up in a gang himself.” The resentencing court did not dispute that defendant’s 

“choices” were influenced by his “age and his circumstances” but merely rejected the notion that 

defendant had no choice at all. This statement is not at all inconsistent with section 5-4.5-105 of 

the Code, which does not absolve juveniles of accountability but rather mandates that their actions 

be considered in the context of their youth and its attendant circumstances. Furthermore, the record 

shows that the resentencing court adequately considered the context of defendant’s youth and 

circumstances, stating that the court “look[ed] at *** [defendant’s] upbringing” and weighed 

everything that “happened up to the age of 16” in mitigation. 

¶ 41 However, even if defendant’s interpretation of the resentencing court’s statement is correct, 

this statement is not enough to overcome the presumption “that the circuit court considered any 

mitigating evidence before it,” Burton, 184 Ill. 2d at 34. See People v. Bruce, 2022 IL App (1st) 

210811, ¶ 26 (“In determining whether the sentencing court considered any improper factors, this 

court must consider the entire record, rather than ‘a few words or statements’ made by the trial 

court.”) (quoting People v. Ward, 113 Ill. 2d 516, 526 (1986)). 

¶ 42 We presume the resentencing court considered everything in mitigation, including 

defendant’s childhood and rehabilitation. The fact that the resentencing court “did not refuse, as a 

matter of law, to consider [defendant’s] youth,” “reviewed the entire [mitigation report] *** and 

announced several times that [defendant] was young,” is sufficient evidence that defendant 

“received the constitutionally required procedure under Miller.” People v. Wilson, 2023 IL 
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127666, ¶ 44. Since the sentence in question was under 40 years, the question before us is 

compliance with section 5-4.5-105 of the Code, not compliance with Miller. However, as that 

section codifies Miller, we see no reason that what constitutes sufficient procedure under Miller is 

not also sufficient under the statutory requirement. Further, defendant articulates no such 

distinction.

¶ 43 Therefore, we find no error, and the issue is forfeited. 

¶ 44 B. Whether Defendant’s Sentence was Excessive Given Mitigating Evidence

¶ 45 Additionally, defendant contends that even if the resentencing hearing complied with the 

statutory mandate, defendant’s sentence was excessive. Defendant concedes that the sentence of 

36 years was within the statutory guidelines but argues that it was excessive given “the extensive 

mitigating evidence presented at [defendant’s] sentencing hearing *** and constituted an abuse of 

discretion.” Defendant again asks the court to reduce his sentence or remand for resentencing 

before a different judge. This argument is similarly unpersuasive. 

¶ 46 “The sentence to be imposed in an individual case is left to the discretion of the trial court.” 

People v. Almo, 108 Ill. 2d 54, 70 (1985). The sentencing court is better positioned to “make a 

reasoned judgment based upon firsthand consideration of such factors as ‘the defendant’s 

credibility, demeanor, general moral character, mentality, social environment, habits, and age.’ ” 

People v. Streit, 142 Ill. 2d 13, 19 (1991) (quoting People v. Perruquet, 68 Ill.2d 149, 154 (1977)).

¶ 47 Therefore, “[w]here a sentence falls within statutory guidelines, it is presumed to be proper 

and will be overturned only on an affirmative showing that it departs from the intent of the law or 

violates constitutional guidelines.” People v. Hamilton, 361 Ill. App. 3d 836, 846 (2005). 

Moreover, “[a] reviewing court will not reduce the sentence unless there is an abuse of discretion.” 

Almo, 108 Ill. 2d at 70. We can only find that a resentencing court abused its discretion if the 
No. 1-22-0636 

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sentence is “greatly at variance with the spirit and purpose of the law, or manifestly 

disproportionate to the nature of the offense.” People v. Alexander, 239 Ill. 2d 205, 212 (2010). 

¶ 48 Defendant first argues that his 36-year sentence was excessive, relying, in large part, on 

his assertion that “the maximum of the sentencing range” was 40 years. The “crux” of defendant’s 

argument is that given the mitigating evidence, his sentence of 36 years was too close to the 

maximum of 40 years, which constitutes an abuse of discretion. Defendant argues that because the 

court did not find him to be permanently incorrigible, his sentence could not exceed 40 years under 

People v. Holman 2017 IL 120655, ¶ 46, and People v. Buffer, 2019 IL 122327, ¶ 42. 

¶ 49 We find this argument unpersuasive because Holman was recently overruled by Wilson. 

Under Wilson, courts can sentence juveniles to life in prison without making a separate finding of 

incorrigibility. Wilson, 2023 IL 127666, ¶ 42 (citing Jones v. Mississippi, 593 U.S. ----, 141 S. Ct. 

1307, 1313 (2021) (holding that courts are not required under the 8th Amendment to make a 

separate finding of incorrigibility before assigning a life sentence to a juvenile)). Therefore, under 

Jones and Wilson, there is no constitutional barrier to assigning defendant a life sentence without 

a finding of incorrigibility. 

¶ 50 Consequently, the true sentencing range of the present case was between 20 and 56 years, 

as the court could have assigned a sentence of up to defendant’s original sentence of 56 years. See 

730 ILCS 5/5-5-4(a) (West 2022).

¶ 51 In light of this, defendant’s 36-year sentence constituted a 20-year reduction, which is well 

within the sentencing guidelines, unquestionably constitutional under Miller and Jones, and 

aligned with the spirit and purpose of section 5-4.5-105 of the Code. 

¶ 52 Furthermore, even if the defendant was correct in asserting that his sentence was four years 

under the maximum, he still has failed to show that the sentence was invalid. 
No. 1-22-0636 

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¶ 53 Defendant argues that the resentencing court “misconstrued the contents of the mitigation 

report to Orvin’s detriment.” Defendant specifically points to a statement in the resentencing 

hearing where the resentencing court posited: “There is family. Your sister was always close. Your 

mom’s sister was close. You did have family.” Defendant claims this statement is “a bizarre and 

unreasonable interpretation of the evidence” and therefore demonstrates that the resentencing court 

disregarded the mitigating evidence. Defendant also posits that the court “[gave defendant’s] 

rehabilitation all but half a thought” by only briefly mentioning the progress defendant made. 

¶ 54 First, it is well established that “[t]he trial court is not obligated to reduce a sentence from 

the maximum allowed simply because mitigating factors are present.” People v. Sauseda, 2016 IL 

App (1st) 140134, ¶ 19. 

¶ 55 Second, defendant’s claim that the court’s statement is not supported by the evidence is 

incorrect. According to the mitigation report, defendant’s sister said “Orvin was always smart and 

‘could figure out how to find [her],’ even when they didn’t have cell phones.” Furthermore, 

defendant’s aunt is mentioned several times in the report. 

¶ 56 Moreover, even if defendant’s reading of the record is correct, these statements do not 

demonstrate that the resentencing court disregarded the Miller factors as codified. As stated in the 

previous section, the court is presumed to have considered all of the mitigating evidence before it. 

Burton, 184 Ill. 2d at 34. “[I]n determining whether the sentencing court considered any improper 

factors, this court must consider the entire record, rather than ‘a few words or statements’ made by 

the trial court.” Bruce, 2022 IL App (1st) 210811, ¶ 26 (quoting People v. Ward, 113 Ill. 2d 516, 

526 (1986)). In the present case, the record is clear that the resentencing court weighed the proper 

mitigating and aggravating factors. The court stated that it considered the factors, and it reduced 

defendant’s sentence by 20 years. 
No. 1-22-0636 

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¶ 57 Defendant cites to People v. McKinley, 2020 IL App (1st) 191907, for the proposition that 

the sentence imposed must reflect the mitigating evidence presented, and where it is evident that 

such mitigation was disregarded by the sentencing court, the appellate court should consider that 

evidence. Id. McKinley was not so simple. In McKinley, we did speak at length about the 

defendant’s sterling record as an inmate. Id. ¶ 80. However, the sentencing court in McKinley

imposed a 39-year sentence and, “in recognizing that the Illinois Supreme Court’s determination 

that 40 years is the equivalent of a life sentence, stated, ‘I don’t believe that. I think the defendant 

was entitled to more time in the penitentiary than even a 40-year sentence.’ ” Id. Further, we noted 

that “[t]he trial court’s comments suggest a predisposition to punish certain types of offenders 

more harshly.” Id. We also faulted the sentencing court for improperly weighing relevant factors, 

namely treating peer pressure as an aggravating factor rather than a mitigating factor, giving 

improper weight to the need to deter future criminal conduct, and improperly weighing the 

defendant’s age, based on its statement that “defendant was only 16 years old. The gun made him 

older.” Id ¶ 87-90. 

¶ 58 In the case at bar, no such improper weighing occurred. As we have explained above, even 

where defendant argues that the resentencing court rejected relevant factors, that is a 

misinterpretation of the resentencing court’s statements. Further, the cases we have cited establish 

that with the option to impose the firearm enhancement, the resentencing court could have imposed 

up to a 56-year sentence. Thus, what remains of defendant’s proposition is the assertion that, where 

there is a significant amount of evidence in mitigation and the maximum sentence available to the 

sentencing court is 56 years, imposition of a 36-year sentence demonstrates that the evidence in 

mitigation was disregarded. McKinley does not support that proposition, and we find it 

unconvincing. 
No. 1-22-0636 

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¶ 59 Upon reviewing the record, we find that the sentence was not at variance with the spirit 

and purpose of section 5-4.5-105(a), did not violate any constitutional guidelines, and was 

proportionate. Thus, we find no abuse of discretion and no error. Accordingly, the issue is forfeited.

¶ 60 C. Whether Defendant’s Sentence Violates Section 5-5-4 of the Code

¶ 61 Defendant also argues that his 36-year sentence violates section 5-5-4(a), which prohibits 

the court from increasing a defendant’s sentence on remand. However, defendant’s argument is 

entirely without merit. 

¶ 62 Section 5-5-4(a) of the Code states that:

“Where a conviction or sentence has been set aside on direct review or on collateral 

attack, the court shall not impose a new sentence for the same offense or for a different

offense based on the same conduct which is more severe than the prior sentence less

the portion of the prior sentence previously satisfied unless the more severe sentence is

based upon conduct on the part of the defendant occurring after the original 

sentencing.” 730 ILCS 5/5-5-4(a) (West 2022).

¶ 63 Whether the resentencing court complied with this statute is a matter of law we review de 

novo. People v. Moore, 359 Ill. App. 3d 1090, 1092 (2005).

¶ 64 Initially, the defendant received a 56-year sentence, with 25 years for first-degree murder, 

25 years as a mandatory enhancement for personally discharging a firearm, and 6 years for 

attempted murder. Upon resentencing, the resentencing court reduced the defendant’s overall 

sentence to an aggregate of 36 years. This was accomplished by eliminating the firearm 

enhancement and increasing the murder sentence to 30 years.

¶ 65 Defendant, attempting to break his sentence into two components, argues that by increasing 

the first-degree murder term from 25 to 30 years, the resentencing court unlawfully increased his 
No. 1-22-0636 

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sentence, even though his aggregate sentence decreased. To support his proposition that a 

resentencing court can violate section 5-5-4 of the Code without increasing the aggregate sentence, 

defendant cites People v. Moore, 177 Ill. 2d 421 (1997), and People v. Kilpatrick, 167 Ill. 2d 439 

(1995). However, Moore and Kilpatrick are irrelevant to the present issue as they only apply to 

consecutive sentences, which are separate sentences under Illinois law. See Kilpatrick, 167 Ill. 2d 

at 446. 

¶ 66 In contrast, the present case involves an underlying murder charge and a weapons 

enhancement, which are not treated as separate sentences when applying section 5-5-4 of the Code. 

See, e.g., People v. Barnes, 364 Ill. App. 3d 888, 897 (2006) (“[W]e note that while the trial court

referred to the attempted murder sentence by reference to its component parts, 10 years plus a 

required 15-year enhancement, neither the language of the statute nor the trial court's ultimate 

pronouncement of sentence suggests that the penalty imposed for attempted murder consisted of 

distinct, independent prison terms rather than a single 25–year sentence.”); see also People v. 

Taylor, 2015 IL 117267, ¶ 21 (finding “no reason to consider defendant’s sentence,” which 

included a 15-year firearm enhancement, “as two separate pieces”). 

¶ 67 Defendant acknowledges Barnes and Taylor, but argues that they should not apply because 

they are cases concerning adult defendants “and do not address the new juvenile sentencing code 

under which this case falls.” Instead, defendant attempts to paint this as a novel issue and proposes 

that the court make an exception for juvenile sentencing and consider firearm enhancements, 

which are discretionary under the revised statute, as separate sentences from the underlying murder 

charge. Compare 730 ILCS 5/5-4.5-105(b) (West 2022) with 730 ILCS 5/5-4.5-20 (West 2022). 

The only legal justification defendant provides in support of this new standard for juveniles is the 
No. 1-22-0636 

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fact that firearm enhancements are mandatory in adult sentencing. See 730 ILCS 5/5-8-1(a)(1)(d) 

(2022). 

¶ 68 However, defendant has not cited any Illinois precedent that supports the proposition that 

the court should treat discretionary and mandatory enhancements differently, nor has any Illinois

court considered an enhancement, discretionary or mandatory, separate from the underlying 

charge. 

¶ 69 The Second District addressed this exact question in a similar youth resentencing case, 

rejecting the notion that an enhancement, even one that is discretionary, can be considered as a 

separate sentence. People v. Vatamaniuc, 2023 IL App (2d) 210665-U. We find Vatamaniuc 

persuasive. The Vatamaniuc court also did not find any precedent to support the claim that “a 

single sentence that includes a statutory enhancement should be treated as an aggregate sentence, 

with each component analyzed as a discrete sentence, for purposes of evaluating compliance with 

section 5-5-4(a).” Id. ¶ 43. Therefore, like the Vatamanuic court, we reject defendant’s argument 

that the resentencing court violated section 5-5-4 of the Code by increasing the murder term.

¶ 70 Moreover, adopting defendant’s interpretation as law would go against public policy. Such 

a restrictive interpretation could disadvantage defendants who stand to gain from judicial 

discretion that accounts for the unique circumstances of their cases. 

¶ 71 Here, the resentencing court found that mitigating factors related to the defendant’s youth 

warranted a significant sentence reduction, but not by more than 20 years. The resentencing court 

was then able to reduce the defendant’s sentence 20 years by eliminating the firearm enhancement 

and marginally increasing the underlying charge. A flexible and contextual understanding of the 

sentencing provisions, as exhibited by the resentencing court in this case, better serves justice and 

allows the courts to tailor sentences according to each case’s specific facts and circumstances. 
No. 1-22-0636 

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¶ 72 Defendant's interpretation, however, would limit judicial flexibility, potentially 

discouraging major sentence reductions when the resentencing court does not wish to reduce the 

sentence by the enhancement’s full value. Therefore, we cannot endorse the defendant's restrictive 

interpretation of section 5-5-4 of the Code, as it is not only inconsistent with the text and intent of 

the law but also contrary to public policy and the interests of many defendants. 

¶ 73 Therefore, because defendant’s sentence was reduced from 56 to 36 years, his sentence did 

not increase, and section 5-5-4 of the Code is not applicable. Thus, we find no error, and the issue 

has been forfeited. 

¶ 74 II. Plain Error and Ineffective Assistance of Counsel

¶ 75 For the reasons stated above, we find that the resentencing court did not err in sentencing 

defendant. Because no error occurred, there can be no finding of plain error. People v. Sargent, 

239 Ill. 2d 166, 189 (2010). 

¶ 76 Alternatively, defendant asks the court to find that “trial counsel’s failures to challenge the 

unlawful sentence increase qualified as constitutionally ineffective assistance of counsel.” See

Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective assistance of counsel 

under Strickland, a defendant must first show that counsel committed “errors so serious that 

counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” 

Id. The defendant must then “show that the deficient performance prejudiced the defense.” Id. 

¶ 77 In the present case, counsel was not ineffective for failing to challenge the sentence because 

no error occurred. People v. Easley, 192 Ill. 2d 307, 332 (2000) (“Since the actions complained of 

did not rise to the level of plain error, the failure of defendant’s trial counsel to object thereto did 

not prejudice defendant under Strickland.”) 

¶ 78 Therefore, we must affirm. 
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¶ 79 CONCLUSION

¶ 80 For the foregoing reasons, we find that the resentencing court did not err in resentencing 

defendant to 36 years. Thus, we affirm the judgment of the resentencing court. 

¶ 81 Affirmed.