2022 IL App (1st) 190812-U 

No. 1-19-0812 

Order filed February 15, 2022. 

Second Division

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, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County. 

) 

v. ) No. 2013 CR 19655

) 

MARKEAS BROWN, ) The Honorable

) Nicholas Ford, 

Defendant-Appellant. ) Judge Presiding.

______________________________________________________________________________ 

JUSTICE LAVIN delivered the judgment of the court.

Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment. 

ORDER

¶ 1 Held: The trial court properly prohibited defendant from testifying regarding another 

individual’s out-of-court confession. In addition, the State’s inadvertent violation of the court’s 

motion in limine ruling was harmless. Furthermore, the record did not support defendant’s claim 

that his sentence was unconstitutional, that trial counsel was ineffective for failing to raise that 

argument, or that counsel was ineffective for failing to seek a sentencing continuance. 

¶ 2 Following a jury trial, defendant Markeas Brown was found guilty of the first-degree

murder of Daquan Boyd and the attempted murder of Lomeck Johnson. On appeal, defendant 

asserts that the trial court improperly denied his right to present a complete defense by excluding 
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his testimony regarding another individual’s out-of-court confession. Defendant also asserts that 

reversible error occurred during closing argument when the State inadvertently played an 

unredacted video of his interrogation that contained other crimes evidence. Additionally, he 

contends that his sentence was unconstitutional and trial counsel was ineffective at sentencing. 

For the following reasons, we affirm the trial court’s judgment.

¶ 3 I. Background 

¶ 4 On August 17, 2013, after spending the evening at the Taste of Austin, Boyd and Johnson 

were shot by two perpetrators riding bicycles. Boyd, who sustained extensive injures to his back, 

diaphragm, lung and heart, did not survive. Johnson sustained gunshot wounds to his left side, 

lumbar spine and left femur as well as a fracture to his femur. While surveillance footage showed 

two individuals acting together, defendant was the only person charged in this offense.

¶ 5 Before trial, the court entered an agreed order on defendant’s motion in limine, which 

required the State to show the jury a redacted version of defendant’s interrogation video. The 

redacted video excluded references to defendant being on parole, being the subject of an arrest 

warrant, or being adjudicated a juvenile delinquent. The redacted video also excluded references 

to defendant skipping school, selling drugs or being on the run. 

¶ 6 At trial, Johnson, then 23 years old, testified that on the night in question, he and Boyd 

went to the Taste of Austin, then to Boyd’s home and, finally, to Johnson’s home, located at 5 

South Parkside. While they were standing outside at 11:30 p.m., a man on a bicycle rode toward 

them on the sidewalk. Under “[p]retty visible” lighting conditions, Johnson saw that the man 

wore a red shirt, blue pants and a tan or khaki fisherman hat. In court, Johnson identified that 

man as defendant. From about two feet away, defendant said or asked, “was you hood rich.”

Boyd answered but Johnson was unable to because defendant and a second man on the street
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began shooting at them. Defendant fired four or five times. While Johnson could hear that a 

second person was shooting, Johnson never looked at him. The victims tried to run away but 

Boyd fell, and Johnson went into shock. Johnson testified that a surveillance video of the scene 

accurately showed what occurred. 

¶ 7 At the hospital, Johnson told detectives that defendant was a black male, between 18 and 

20 years of age, and between 5'6” and 5'9” tall. He wore a large earring, red shirt, black cap and 

blue jeans. Johnson did not describe defendant’s face or complexion but did tell detectives that 

he had seen defendant before, although he could not then recall where. Johnson was released 

from the hospital the following day.

¶ 8 After speaking with friends, Johnson realized that he had gone to DePriest Elementary 

School with defendant, whose nickname was Snooky and whose his first name began with the 

letter M, but he could not remember defendant’s legal name. Johnson, who had last seen 

defendant earlier that summer, did not immediately call the police to inform them of his 

realization, but did provide the police with this information at his home on August 20, 2013. He 

also told the police that defendant had been in his fifth-grade class. Two days later, Johnson was 

“[a]bsolutely 100 percent” certain when he identified defendant from a photo lineup as the 

person who shot at him and Boyd. According to Johnson, he never forgot defendant’s face 

because he knew him. In September 2013, Johnson identified defendant from a lineup with 

absolute certainty and testified before a grand jury. As of trial, Johnson was still “100% positive” 

that defendant was the person he saw shoot at him and Boyd.

¶ 9 Evidence showed that Erick Powell also spoke to the police and testified before the grand 

jury. By the time of defendant’s trial, however, Powell denied remembering any information 

pertinent to this case, and then some. Powell testified that he remembered nothing about day in 
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question, did not see a shooting that night, and did not know defendant. In contrast, Detective 

Joseph Marszalec testified that Powell identified “Snooky” from a photo array and wrote, “saw 

him shoot.”

¶ 10 According to the testimony of Assistant State’s Attorney Christina Brewer, Powell 

testified before the grand jury that he was riding a bicycle to the Taste of Austin when he saw 

Snooky, whom Powell knew from the neighborhood. Snooky and another man were on their own 

bicycles. Powell, who was going the same direction, followed them because he wanted to see 

what they were up to. Snooky, wearing a fisherman hat, jumped onto the sidewalk on Parkside 

and started shooting at Boyd. Powell did not see whether defendant’s companion was shooting, 

however. According to Powell’s grand jury testimony, he recognized “James” from a lineup as 

the other person riding a bicycle that night. 

¶ 11 Forensic evidence generally showed that three cartridge cases, two bullets and certain 

bullet fragments recovered at the scene were fired from the same .380-caliber firearm. A .22-

caliber bullet recovered from Boyd’s body could not have been fired from the same weapon. 

¶ 12 Sergeant Hawkins testified that at about 2:10 p.m. on September 9, 2013, he and other 

members of the fugitive apprehension team went to 556 North LaVergne in search of defendant. 

Officer Walsh reported that he heard an individual run down the back stairs of the building. The 

officers ultimately forced entry to a locked basement door and arrested defendant, who was 

found standing in the middle of the room. 

¶ 13 Sergeant Russel Egan testified that at about 3:12 p.m. on September 9, 2013, he and

Detective Vincent Alonzo met with defendant until about 4 p.m. After determining that 

recording footage of the interview was of poor quality, the detectives moved defendant to a 

different interview room. Sergeant Egan, Detective Alonzo and Detective Marszalec spoke with 
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defendant intermittently between about 5:46 p.m. and 7:04 p.m. The redacted video of 

defendant’s interview was published for the jury.

¶ 14 That video showed that defendant first denied knowledge of shooting and claimed that he 

was at the home of his son’s mother that night. He also denied that he had ever shot a gun but 

acknowledged owning a white fisherman’s hat. Subsequently, defendant told detectives that the 

shooting involved Lil’ James, whose legal name was James Dixon, and an argument involving 

the “Hood Ridge boys” at the Taste of Austin.1 In addition, he admitted being at the scene but 

denied shooting. Defendant further stated that there were six people present with various 

firearms and he was the only one with a .32-caliber Colt revolver, which held two bullets. 

¶ 15 Next, defendant told the police that the first time he and his companions cycled past the 

scene, the Hood Ridge boys threw bottles and bricks at them. They then procured four automatic 

weapons and one revolver from a house and returned to the scene. Defendant admitted that he 

was wearing a floppy hat but denied shooting the revolver. At one point, defendant stated that 

“Erick” was also one of the shooters. Finally, defendant admitted that upon returning to the 

scene, he rode his bike on the sidewalk and shot twice at the victims. 

¶ 16 Defendant, who was 18 years old at the time of the offense, testified that on the afternoon 

of August 17, 2013, he went to the home of Angelique Gross, his son’s mother. Gross’s own 

mother, Benita Watson, also lived there. That afternoon, Dixon, a former friend, called 

defendant’s cell phone and told him that something would occur later at Parkside and Madison. 

Dixon said he “got into it with” someone and needed defendant “to come ride with” him.

Defendant declined and stayed at Gross’s home all day. At about 2 or 3 p.m., defendant’s own 

1

We note the phonetic similarity of “hood rich,” testified to by Johnson, and “Hood Ridge,” 

referred to in defendant’s interview. 
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mother joined them and stayed until about 9 or 9:30 p.m. At around 11 p.m., they ate a roast that 

Watson had cooked. 

¶ 17 At about 9 or 10 a.m. the next morning, defendant returned to his grandmother’s house, 

where he and other family members lived. Many people were in the area, including Dixon and 

“Erick.” In the presence of Erick and others, Dixon told defendant what had happened the night 

before. Later the same day, defendant had a second conversation with Dixon about what had 

happened the previous day. While defense counsel was questioning defendant about the first 

conversation he had with Dixon, the following ensued:

“Q. Okay. Did you ever hear -- so when you say he told you about what 

happened, what was he -- what are you talking about?

MS. SULLIVAN [ASSISTANT STATE’S ATTORNEY]: Objection.

THE WITNESS: He was talking --

THE COURT: Sustained. Folks, by way of explanation, the evidence that's being 

solicited would be hearsay not with an exception. There's sort of exceptions to the 

hearsay rule. Just repeating what somebody else told you is hearsay.” 

¶ 18 At a side bar, defense counsel argued that the hearsay rule could not be used to 

mechanically thwart a defense and, because the State elicited evidence that Dixon participated in 

the shooting, it would be “a misapplication of the hearsay rule to exclude testimony about what 

[Dixon] might have said about his participation in this crime.” Following a discussion off the 

record in chambers, the court remarked on defendant’s reliance on People v. Tenney, 205 Ill. 2d 

411 (2002): 
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“[I]t talks about mechanically applying the hearsay rule to exclude certain 

evidence, but it also eludes to the fact that in order for that exception to exist, there has to 

be something inherently trustworthy about the conversation when it occurs. 

Now, as I understand it, this conversation is occurring the next day, far removed 

from the incident when this crime is alleged to have occurred, and the Defendant's theory 

of the case is that the information provided during this conversation became the 

information they would later go on to tell the police, that he would later go on to tell the 

police, his statement to the police, which I have now seen is highly factually diverse and 

transient in nature. I watched him to go from a complete denial to a really reluctant 

admission and acceptance and acknowledgment of his conduct, and what that all does, it 

sheds profoundly dark light upon the assertion that I am applying the hearsay rule 

mechanically here. In fact, quite to the contrary. I cannot use the Tenney case because I 

don't believe that the indica of reliability exists here as they did in Tenney.” 

¶ 19 Defendant continued to testify that on the way to the police station following his arrest, 

one detective said, “if I was you, I wouldn't go down for nothing that you didn't do.” The 

detective said, “just do what you got to do,” which defendant took to mean he should implicate 

someone. In addition, the detective said that if defendant did that, he would not be charged. In 

the first room at the police station, he “told them everything.” Specifically, he said he was at 

Gross’s home and had nothing to do with the crime. In the second room, which was extremely 

cold, the police told him that a video showed him shooting someone, but he did not see that 

video. He told the police they were wrong because he was not at the shooting.

¶ 20 That being said, defendant subsequently told the police that he was at the scene and fired 

a gun. Defendant, who was cold, frustrated and scared, thought that if he told the police he fired 
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a gun at the scene “but it wasn't the gun that actually did it, then maybe I -- they'll just find out 

I'm lying to them and let me go.” The information he gave the police came from Dixon, although 

defendant fabricated his statement that six people with guns were present. Defendant believed he 

could outsmart the police.

“I know how it sound right now on the stand. It sound stupid. I just -- I was 

young. I made a mistake. I thought that was going to get me out of something and it 

really got me into something. It really got me sitting here feeling I could possibly lose my 

life.” 

Defendant testified that although he told police that he fired at the victims, defendant never said 

he actually shot anyone. 

¶ 21 According to defendant, he repeatedly asked the police what type of guns were used in 

the shooting because he was trying to determine whether they came from “Auntie Gina’s” house, 

where Dixon and others had previously obtained guns. Defendant denied asking for that 

information because he knew the type of gun he himself had used. In addition, defendant denied 

knowing either victim, although he did attend DePriest for part of the 8th grade. He also denied 

being present at the scene, shooting anyone, knowing Powell or owning a floppy hat in August 

2017. 

¶ 22 Benita Watson testified that she met defendant when he started dating her daughter in 

2011. On August 17, 2013, defendant, his mother, his uncle and his two cousins came over. His 

mother stayed until about 9 or 9:30 p.m. Watson was about to get defendant’s son ready for bed 

when Gross said she was hungry. Watson put a roast in the oven and joined defendant on the 

porch, checking the roast intermittently. When Watson took the roast out of the oven at almost 2 

a.m., Gross had fallen asleep. Watson denied telling Cook County State’s Attorney Investigator 
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Michael Connelly that she did not want to be interviewed or answer questions. The parties 

subsequently stipulated, however, that Connelly would testify to the contrary. 

¶ 23 During closing argument, the State played clips of the unredacted video of defendant’s 

interview and defense counsel moved for a mistrial. She argued that in the footage improperly 

played for the jury, defendant said, “I went to parole officer to baby mama's house that I wasn't 

going to school. Shit. So she, mom, tried to lock me up so I ran. That's how I caught the 

warrant.” The court denied defendant’s motion:

“I will indicate that his manner of speaking, he's very difficult to understand. In 

any event, even understanding and now hearing the words, *** I don't think the State --

perhaps it was clerical error. It had been included among the things which had originally

been omitted from the statement that the jury was going to be allowed to see, but I don't 

think it's that prejudicial.” 

¶ 24 The jury then found defendant guilty of first-degree murder and attempted first-degree 

murder. The jury also found that during the commission of both offenses, he was armed with a 

firearm. The trial court subsequently denied defendant’s motion for a new trial. 

¶ 25 At sentencing, the parties agreed that the minimum sentence for first-degree murder was 

20 years, the minimum sentence for attempted murder was 6 years, and both sentences carried

15-year firearm enhancements and were to be served consecutively. In addition, defense counsel 

requested that defendant be sentenced under the Parole-Appeal and Review Act, which we note 

would not take effect for almost two months, and defense counsel did not suggest how the court 

might apply that act to this case. In elocution, defendant stated, “I apologize for what happened. I

just wish they got the right guy.” 
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¶ 26 The trial court acknowledged that defendant came from an extremely challenged 

community but disagreed “that there aren't individuals in that same circumstance that never even 

darken the doorways of this building. There are thousands and thousands of young men in his 

age group that never are involved in anything remotely similar to what the defendant is involved 

in in this case.” In addition, Boyd was doing nothing when defendant rode by on a bicycle and 

executed him at point blank range. Furthermore, the legislature was trying to curb indiscriminate, 

lawless behavior by individuals who “arm themselves at crazily young ages.” While the court 

took no joy in having to sentence defendant, the mandatory minimum sentence did not 

correspond to the seriousness of the offense. Accordingly, the court sentenced defendant to 30 

years in prison for murder, which was 10 years above the minimum, 6 years in prison for 

attempted murder and two 15-year firearm enhances, to be served consecutively for a cumulative 

sentence of 66 years in prison. 

¶ 27 II. Analysis

¶ 28 On appeal, defendant first asserts that the trial court denied him his right to present a 

complete defense by prohibiting defense counsel from questioning him regarding Dixon’s 

admissions after the shooting.

¶ 29 A criminal defendant is constitutionally entitled to a meaningful opportunity to present a 

complete defense. People v. Burgess, 2015 Il App (1st) 130657, ¶ 133. When a defendant claims 

that improper evidentiary rulings denied him that right, we review the trial court’s rulings for an 

abuse of discretion, which occurs when no reasonable person would take the court’s view. Id. ¶¶ 

133-34; see also People v. Anderson, 367 Ill. App. 3d 653, 667 (2006) (finding no abuse of 

discretion even if other judges may have ruled differently).
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¶ 30 A declarant’s unsworn, out-of-court statement that he committed the crime the defendant 

has been charged with is generally inadmissible hearsay, notwithstanding that the statement was 

against the declarant’s penal interest. People v. McCallister, 193 Ill. 2d 63, 100 (2000). Were it 

otherwise, everyone accused of a crime would be tempted to introduce perjured testimony that a 

third party beyond the reach of the court had declared that he, rather than the accused, was the 

true culprit. People v. Tenney, 205 Ill. 2d 411, 433-34 (2002). Yet, the hearsay rule cannot be 

mechanically applied to defeat justice. Id. at 434. Such extrajudicial statements may be admitted 

pursuant to the statement-against-penal-interest exception where there are sufficient indicia that 

the extrajudicial statements are trustworthy. People v. Bowel, 111 Ill.2d 58, 66 (1986) (citing 

Chambers v Mississippi, 410 U.S. 284, 302 (1973)).

¶ 31 A declaration may be sufficiently trustworthy where (1) the declarant spontaneously 

made the statement to a close acquaintance shortly after the crime; (2) other evidence 

corroborated the statement; (3) the declarant’s statement was self-incriminating and against his 

interests; and (4) an adequate opportunity to cross-examine the declarant exists. Bowel, 111 Ill.

2d at 66-67 (citing Chambers, 410 U.S. at 300-01). While such factors are indicia of 

trustworthiness, they are not hard and fast requirements. McCallister, 193 Ill. 2d at 100. A 

defendant is not required to establish all four factors. People v. Thomas, 171 Ill. 2d 207, 216 

(1996). The ultimate question is whether the circumstances under which the declaration was 

made involved objective indicia of trustworthiness that provide considerable assurance of the 

statement’s reliability. McCallister, 193 Ill. 2d at 100. Consistent with these principles, Illinois 

Rule of Evidence 804(b)(3) (eff. Jan. 1, 2011) provides:

“A statement which was at the time of its making so far contrary to the declarant's 

pecuniary or proprietary interest, or so far tended to subject the declarant to civil or 
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criminal liability, or to render invalid a claim by the declarant against another, that a 

reasonable person in the declarant's position would not have made the statement unless 

believing it to be true. A statement tending to expose the declarant to criminal liability 

and offered in a criminal case is not admissible unless corroborating circumstances 

clearly indicate the trustworthiness of the statement.” 

¶ 32 Despite the trial court’s finding to the contrary, the State concedes that the first factorwhether the statement was made spontaneously to a close acquaintance after the crime- favors 

admission. The parties also agree that the third factor-whether the statement was against Dixon’s 

penal interest- favors admission, but the fourth factor -whether the witness is subject to crossexamination- does not. Thus, the parties’ dispute focuses on the second factor, whether sufficient 

evidence corroborates the statement.

¶ 33 The import of Dixon’s alleged statement is that he, to the exclusion of defendant, 

participated in this shooting. If the statement merely acknowledged Dixon’s involvement without 

implying that defendant was not involved, defendant would have no use for it. While defendant 

points to several instances in the record indicating that Dixon was the shooter in the middle of 

the street, nothing corroborates Dixon’s suggestion that defendant was not the other shooter, 

aside from defendant’s self-serving statement initially made to the police. In short, the 

trustworthiness of Dixon’s out-of-court statement is undermined by its source, defendant, who 

was the sole witness to the statement and the sole person to potentially benefit from it. See also 

People v. Cunningham, 267 Ill. App. 3d 1009, 1016 (1994) (finding it significant that the defense 

investigator to whom the statement was made had a direct interest in the case); People v. 

Villegas, 222 Ill. App. 3d 546, 552 (1991) (finding that the witnesses who would testify to the 

declarant’s statements had a defense bias as they were all related to the defendant); but see 
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People v. Swaggirt, 282 Ill. App. 3d 692, 702-03 (1996) (finding that the source of corroborating 

evidence need not be prosecution witnesses and that the Chambers’ factors do not involve 

credibility determinations and that “[i]f the testimony of defendant’s witnesses is suspect, then 

this fact goes to the weight to be accorded such testimony rather than to its admissibility”).

¶ 34 We return to the purpose of the general rule excluding a declarant’s unsworn, out-ofcourt statement that he committed the crime the defendant has been charged with. If the 

circumstances before us were sufficient to put Dixon’s statement before the jury, every criminal 

defendant would be tempted to introduce perjured testimony that an unavailable witness had 

declared that he, rather than the defendant, was the true culprit. Tenney, 205 Ill. 2d at 433-34. We 

find no abuse of discretion. 

¶ 35 B. Other Crimes Evidence

¶ 36 Next, defendant asserts that the State violated the agreed order to exclude other crimes 

evidence and that this error was not harmless. During closing argument, rather than playing the 

redacted version of the interview recording, the State played portions of the unredacted one. 

While the State concedes that it violated the order, albeit inadvertently, the State maintains that 

the error was harmless. 

¶ 37 Evidence of other crimes is inadmissible for the purpose of establishing the defendant’s 

propensity to engage in criminal activity, as such evidence might lead the jury to convict the 

defendant for being a bad person deserving punishment. People v. Thingvold, 145 Ill. 2d 441, 

452 (1996); People v. Richee, 355 Ill. App. 3d 43, 50-51 (2005). Such evidence can include 

crimes or acts for which the defendant was not charged. People v. Sims, 2019 IL App (3d) 

170417, ¶ 28. Yet, our supreme court has repeatedly held that the improper introduction of othercrimes evidence constitutes harmless error where the defendant was neither prejudiced nor 
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denied a fair trial by admission. People v. Nieves, 193 Ill. 2d 513, 530-31 (2000). Such error “is 

harmless if there is substantial evidence of the defendant's guilt.” Sims, 2019 IL App (3d) 

170417, ¶ 30. Stated differently, reversal is unwarranted if the evidence was unlikely to have 

influenced the jury. People v. Cortes, 181 Ill.2d 249, 285 (1998).

¶ 38 Defendant suggests that because these statements were redacted from the video to avoid 

prejudice to defendant, it is a foregone conclusion that publishing these statements to the jury

was prejudicial and not harmless. While the parties and the trial court were certainly concerned 

about potential prejudice from such statements, it does not follow that actual prejudice 

materialized. 

¶ 39 First, we agree with the trial court’s finding that defendant’s words on the video are very

difficult to understand. Even if the jury was able to make out what defendant was saying, these 

passing remarks were brief and followed the conclusion of evidence. In addition, jurors may or 

may not have understood defendant’s meaning when he said that Watson “tried to lock me up,” 

or understood what it means to “catch a warrant.” Moreover, the evidence in this case was 

substantial. See Nieves, 193 Ill. 2d at 531 (finding the potential prejudicial effect “produced by 

this one isolated and cryptic reference to defendant's criminal activity in New York was 

overshadowed by the substantial evidence of defendant's guilt”).

¶ 40 Johnson, who was in defendant’s fifth grade class, recognized him as the shooter and was 

unwavering in his certainty. While the encounter was brief, the surveillance video supports 

Johnson’s testimony that lighting conditions were “[p]retty visible.” Even at the hospital, 

Johnson told the police he had seen the offender before, although he was only able to come up 

with a name and context for defendant after speaking to friends. Additionally, shortly after the 

shooting, Powell testified before the grand jury that he saw defendant shoot at Boyd. Given the 
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extent of Powell’s professed lack of knowledge or memory at trial, we find it extremely unlikely 

that a jury would find his trial testimony to be more credible.

¶ 41 Finally, despite the everchanging account he gave the police, defendant ultimately 

admitted that he rode his bicycle onto the sidewalk and fired twice at the victims. Defendant 

argues that his initial statement to police corroborated his trial testimony that he was at the home 

of Watson and Gross at the time of shooting. Yet, he underestimates the strength of the 

eyewitness accounts of Johnson and Powell, who, consistent with defendant’s eventual 

confession, identified him as the shooter on the sidewalk. Cf. People v. Mullen, 141 Ill. 2d 394, 

402-406 (1990) (finding the prosecutor’s deliberate reference to a forbidden subject during 

closing argument was egregious and prejudicial where it suggested that the defendant threatened 

or intimidated witnesses out of testifying, where numerous discrepancies existed between the 

defendant’s confession and eyewitness testimony and where the defendant said the victim was 

shot in the head although he was actually shot in the back). We also find the jury would be aware

that as the grandmother of defendant’s child, Watson had a natural bias in favor of defendant and 

had a motive to place him at her home on the night of the shooting. In short, it is unlikely that the 

brief references to other crimes evidence during closing argument influenced the jury’s verdict.

The error was harmless.

¶ 42 C. Miller v. Alabama

¶ 43 Defendant, who was 18 years old at the time of the offense, next asserts that the trial 

court failed to consider the unique characteristics of juvenile offenders before imposing a 

cumulative 66-year sentence. He contends that as a result, his sentence violates the proportionate 

penalties clause.
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¶ 44 The United States Supreme Court has determined that under the eighth amendment to the 

United States Constitution, children are constitutionally different from adults. People v. Dorsey, 

2021 IL 123010, ¶ 37 (citing Miller v. Alabama, 567 U.S. 460, 471 (2012)). Consequently, 

before determining that a life sentence without parole is a proportionate sentence for a juvenile, 

the sentencing court must consider the juvenile’s youth and attendant characteristics. Dorsey, 

2021 IL 123010, ¶ 40 (citing Montgomery v. Louisiana, 577 U.S. 190, 209-10 (2016)).

¶ 45 Defendant concedes that at 18 years of age, he was not a juvenile offender. Yet, he

contends that as a young adult, juvenile sentencing factors apply with equal force to his sentence 

and that his de facto life sentence, imposed without considering juvenile sentencing factors, is

unconstitutional as applied under Illinois’ proportionate penalties clause. That clause states 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.1, § 11. 

¶ 46 The record before us does not support defendant’s as-applied claim, as it contains no 

information about how science applies to defendant’s specific case. See People v. House, 2021 

IL 125124, ¶¶ 27-31 (rejecting the defendant’s as-applied constitutional challenge where the 

defendant “did not provide or cite any evidence relating to how the evolving science on juvenile 

maturity and brain development applies to his specific facts and circumstances”); People v. 

Harris, 2018 IL 121932, ¶ 46 (finding that the record contained no “evidence about how the 

evolving science on juvenile maturity and brain development that helped form the basis for the 

Miller decision applies to defendant's specific facts and circumstances”); People v. Thompson, 

2015 IL 118151, ¶ 38 (similar). Accordingly, we find no error.

¶ 47 Recognizing potential difficulty with the record, defendant urges us to reverse and 

remand this case for an evidentiary hearing on defendant’s claim. In Harris , which involved a 
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direct appeal, our supreme court specifically declined to do so. See Harris, 2018 IL 121932, 

¶¶ 47-48; but see People v. Jones, 2021 IL App (1st) 180996, ¶¶ 14-35 (finding that judicial 

economy rendered it appropriate on direct appeal to vacate the defendant’s sentence and remand 

to the trial court to develop a record as to whether the 50-year sentenced imposed for a crime 

committed at age 19 was unconstitutional as applied to this defendant). We find it appropriate to 

follow our supreme court’s lead and decline defendant’s request.

¶ 48 Defendant alternatively contends that trial counsel was ineffective for failing to raise this 

claim below. To demonstrate that trial counsel was ineffective, a defendant must show that 

counsel’s performance was deficient and caused prejudice.2 People v. Pope, 2020 IL App (4th) 

180773, ¶ 61. The record, however, does not reveal what evidence, if any, was available to 

defense counsel to support defendant’s claim that he in particular was constitutionally required to 

be sentenced in the same manner as a juvenile. Without knowing the strength of such evidence, 

we cannot say that trial counsel was deficient for failing to bring it to the trial court’s attention or 

that defendant would have received a more favorable sentence had trial counsel done so. 

Moreover, where defendant has not shown his entitlement to the protections of Miller, he had not 

shown error, let alone second-prong plain error. See People v. Mudd, 2021 IL 126830, ¶ 22 

(stating that a defendant must demonstrate error serious enough to affect the fairness of his trial 

or undermine the integrity of the judicial process). 

¶ 49 D. The Parole-Appeal and Review Act

¶ 50 Finally, defendant asserts that trial counsel was ineffective for failing to seek a 

continuance so that defendant could take advantage of new legislation which had yet to take 

2

We categorically reject defendant’s suggestion that this is the rare case where counsel “entirely 

fails to subject the prosecution’s case to meaningful adversarial testing,” excusing the defendant from 

showing prejudice. United States v. Chronic, 466 U.S. 648, 659 (1984).
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effect. As stated, defendant must show both that trial counsel’s performance was deficient, and 

that this deficient performance caused prejudice. Pope, 2020 IL App (4th) 180773, ¶ 61.

¶ 51 On April 1, 2019, the governor signed the Parole-Appeal and Review Act. Pub. Act 100-

1182, § (eff. June 1, 2019). That act implemented parole review for individuals who were under 

21 years of age at the time of their offense, making many defendants eligible for parole review 

after serving 10 years in prison. 730 ILCS 5/5-4.5-115(b) (West 2020). That being said, section 

5-4.5-115(b) expressly applies to individuals sentenced on or after June 1, 2019, the act’s 

effective date. 730 ILCS 5/5-4.5-115(b) (West 2020). Defendant’s sentencing hearing occurred 

on April 4, 2019, just three days after the legislation was signed but almost two months before 

the act was to take effect. Without the benefit of this new legislation, defendant must serve 100% 

of his 45-year sentence for first degree murder, and 85% of his 21-year sentence for attempted 

first degree murder. 730 ILCS 5/3-6-3(a)(2)(i), (ii) (West 2014). 

¶ 52 The record shows that defense counsel explicitly asked the trial court to sentence 

defendant under this new act but did not specify how the court could do so. It is unclear whether 

the trial court would have understood this to be a request for a continuance. If it did, the request 

was implicitly denied. Assuming the court did not consider this to be a motion for a continuance, 

defendant cannot show a reasonable likelihood exists that the court would have granted such a 

motion. 

¶ 53 In deciding whether to grant a continuance, a matter within the trial court’s discretion, the 

court may consider, among other things, the history of the case, the complexity of the matter, 

docket management and inconvenience to the parties and witnesses. People v. Walker, 232 Ill. 2d 

113, 125-26 (2009). As defendant observes, only 37 days had passed between the finding of guilt 

and the sentencing hearing on April 4, 2019. Yet, the present offense incurred in August 2013, 
No. 1-19-0812

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over five years earlier. While this delay is not entirely attributable to defendant, the court was 

nonetheless entitled to consider the effect of this outstanding case on the parties, Johnson, the 

victims’ families, the sentencing witnesses and the court’s docket. Defendant has not shown a 

reasonable likelihood exists that the court would have granted a continuance of almost two 

months for defendant to take advantage of legislation that the legislature had not otherwise 

endeavored to make applicable to defendant. Cf. United States v. Abney, 812 F.3d 1079, 1082-

83, 1092-95 (D.C. Cir. 2016) (finding that where the defendant was sentenced five days after 

Congress passed the Federal Sentencing Act, which would have cut the minimum sentence in 

half, where defense attorneys were routinely seeking continuances to benefit from that act, and 

where the trial court stated it would have imposed a lesser sentence if it had discretion to do so, a 

reasonable probability existed that an impartial judge would have granted a continuance had 

defense counsel asked); see also Downs v. United States, 879 F.3d 688, 690-91 (6th Cir. 2018)

(disagreeing with Abney’s determination that counsel’s performance was deficient). Because 

defendant cannot establish prejudice, he cannot show that trial counsel was ineffective.

¶ 54 III. Conclusion 

¶ 55 For the foregoing reasons, we affirm the trial court’s judgment.

¶ 56 Affirmed.