2024 IL App (1st) 210583-UB 

No. 1-21-0583 

Order Filed June 7, 2024

 Fifth 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 JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) 

 ) Appeal from the

 Respondent-Appellee, ) Circuit Court of Cook County.

 ) 

 v. ) 09 CR 11653 

 ) 

IAN VALENCIA ) Honorable James M. Obbish, 

) Judge Presiding. 

Petitioner-Appellant. ) 

JUSTICE NAVARRO delivered the judgment of the court.

Presiding Justice Mitchell and Justice Ocasio concurred in the judgment.

ORDER

Held: Trial court properly granted the State’s motion to dismiss 

petitioner’s second-stage postconviction petition where petitioner failed to 

make a substantial showing that: (1) he was actually innocent of attempted 

first degree murder; (2) he was deprived of effective assistance of counsel; 

and (3) his sentence was unconstitutional as applied to him. 

¶ 1 Petitioner, Ian Valencia, appeals from the trial court’s grant of the State’s motion to 

dismiss his second-stage postconviction petition. On appeal, Valencia contends that he made a 

substantial showing that: (1) he was actually innocent of attempted first degree murder where he 

presented newly discovered evidence; (2) he was deprived of effective assistance of trial counsel 
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where counsel advised him not to testify; and (3) the mandatory sentencing scheme that led to his 

26-year sentence is unconstitutional as applied to him. For the following reasons, we affirm. 

¶ 2 I. BACKGROUND

¶ 3 Following a bench trial, Valencia was found guilty of two counts of attempted first

degree murder and one count of aggravated discharge of a firearm stemming from an incident 

that occurred on June 11, 2009. The details of the trial were discussed on direct appeal in People 

v. Valencia, 2012 IL App (1st) 102312-U, but we will summarize them here as necessary to this 

appeal. 

¶ 4 Nelson Villagomez testified that on the date in question, at approximately 4:45 p.m., he 

and his brother, Freddie Villagomez, began walking home from the bus stop located near their 

apartment at 4130 North Kimball. Id. ¶ 3. As they walked northbound on Kimball, Nelson 

noticed a gray Oldsmobile with a man, later identified as Walter Quevedo, in the driver’s seat. 

Id. The car pulled up alongside Nelson and Freddie. Id. 

¶ 5 According to Nelson, Valencia, who was in the passenger seat, “started gang banging” to 

Nelson and Freddie, and “threw up a gang sign.” Id. ¶ 4. In response, Nelson told him that he 

was not “gang banging.” Id. The encounter lasted approximately 20 seconds. Id. Nelson and 

Freddie were not carrying any weapons and did not make any motions towards the car. Id. 

Nelson had no connection to a gang. Id. 

¶ 6 Freddie walked ahead of Nelson as they crossed the street. Id. ¶ 5. He was a couple steps 

from their front door when Nelson observed the Oldsmobile parked in an alley, about half a 

block from his home. Id. With both arms raised and his palms up, Nelson said to Valencia, 

“What you want to do?” Id. Nelson then observed Valencia’s hand come out of the passenger 
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window, saw flames from a gun, and heard approximately six gunshots. Id. Valencia was 

shooting in Nelson’s direction. Id. 

¶ 7 When the shooting stopped, Nelson got up from the ground, checked to make sure his 

brother was safe, and then called the police to report the shooting. Id. ¶ 6. The police arrived 

within a few minutes and took Nelson and Freddie to the police station, where Valencia and 

Quevedo were in police custody. Id. Nelson and Freddie positively identified Valencia as the 

passenger and the shooter, and Quevedo as the driver. Id. 

¶ 8 Freddie Villagomez’s testimony was substantially the same as that of Nelson’s. Id. ¶¶ 7-

8. Officer John Becker testified that a search of the Oldsmobile revealed a semiautomatic .380-

caliber Kel-Tec handgun and two .380-caliber bullets in a hidden compartment under the glove 

compartment on the passenger side. Id. ¶ 9. 

¶ 9 Officer Becker testified that he spoke with Valencia on the night of the shooting, and that 

Valencia said Quevedo told him there was a gun underneath the dashboard on the passenger side, 

so Valencia retrieved the gun and shot at Nelson and Freddie until the gun was empty. Id. 

¶ 10 Amy Campbell, an evidence technician, testified that she found five expended shell 

casings at the mouth of the alley. Id. ¶ 10. She also recovered a fired bullet lodged in the front 

siding, beneath the second-floor window of the home next door to Nelson and Freddie’s 

apartment building. Id. She recovered a fired bullet from the flowerbed located in front of the 

brothers’ apartment building. Id. 

¶ 11 At the conclusion of Valencia’s bench trial, he was found guilty of attempted murder. 

During his sentencing hearing, evidence of his criminal history was presented as follows: 

“As to [Valencia’s] criminal history as findings of juvenile delinquency in 2007, 

his reckless conduct, possession of a cannabis, fines and delinquency. In 2008, 
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Judge, [Valencia] has a finding of delinquency for aggravated discharge of a 

firearm. That’s an offense for which he was sent to the Juvenile Department of 

Corrections. 

In that offense he fires at an occupied vehicle ***.” 

¶ 12 In mitigation, Valencia’s mother testified that Valencia had “severe bipolar” disorder. He 

was in therapy talking about his brothers going in and out of jail, his father not being involved in 

his life, and his mother spending a lot of time at work. Valencia’s mother testified that Valencia

was 8 years old when he was diagnosed with bipolar disorder, and that he cooperated with 

treatment last when he was “15 or 16” years old. He was in custody for aggravated discharge of a 

firearm for two months, and then it was several months later that he was arrested for the current 

crime. 

¶ 13 Defense counsel requested the minimum sentence of 26 years’ imprisonment. 

¶ 14 The trial court sentenced Valencia to the minimum of 6 years’ imprisonment for 

attempted murder, enhanced by a mandatory 20-year term for personally discharging a firearm 

during the commission of the offense. 

¶ 15 On direct appeal, Valencia argued that the State failed to prove him guilty of attempted 

murder beyond a reasonable doubt. This court disagreed and affirmed the trial court’s judgment. 

People v. Valencia, 2012 IL App (1st) 102312-U. 

¶ 16 On July 12, 2013, Valencia filed a pro se postconviction petition raising the following 

arguments: (1) he was actually innocent of attempted first degree murder; (2) trial counsel was 

ineffective for telling Valencia that his juvenile adjudications were admissible against him, 

which caused him to give up his right to testify at trial; (3) trial counsel was ineffective for 

failing to interview a witness; (4) trial counsel was ineffective for telling him to reject the State’s 
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plea offer of nine years’ imprisonment in exchange for a guilty plea to one count of Class 1 

aggravated discharge of a firearm; and (5) the 20-year mandatory firearm enhancement violated 

the United States and Illinois constitutions as applied to 17-year-olds. 

¶ 17 Valencia supported his petition with numerous affidavits. In support of his actual 

innocence claim, he attached the affidavit of James Galambos, whom Valencia met while they 

were both incarcerated at Stateville Correctional Center. Galambos stated in his affidavit that he 

witnessed the shooting and that he “saw the gun pointed upward at an angle, not towards the man 

that was yelling.” 

¶ 18 The trial court summarily dismissed Valencia’s pro se postconviction petition. Valencia 

appealed. 

¶ 19 On appeal, Valencia contended that his postconviction petition was improperly dismissed 

because it raised arguable claims of: (1) actual innocence; (2) ineffective assistance of counsel; 

and (3) unconstitutional sentencing. People v. Valencia, 2016 IL App (1st) 133524-U. We found 

that the trial court was misplaced in relying on two cases, People v. Brown, 54 Ill. 2d 21, 24 

(1973) and People v. Thompkins, 161 Ill. 2d 148, 177-78 (1994), in dismissing Valencia’s 

petition because both cases discussed the dismissal of second-stage petitions, not first-stage 

petitions. Valencia, 2016 IL App (1st) 133524-U, ¶ 28. We noted that Valencia’s petition was 

merely at the first stage of postconviction proceedings, “where the threshold for survival is low.” 

Id. 

¶ 20 Based on our determination that the trial court applied an incorrect standard when 

reviewing Valencia’s petition, we then looked at the petition with the correct standard and found 

that there was nothing in the record to affirmatively rebut Valencia’s claim that his attorney told 

him that if he testified, the shooting he took part in as a juvenile would be used against him by 
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the State. Id. ¶ 31. Accordingly, we found that it was arguable that counsel’s advice misled 

Valencia into thinking that, no matter what, his juvenile adjudication would be used against him 

if he testified. Id. ¶¶ 29-30. Accordingly, because we found that Valencia’s petition adequately 

set forth allegations that showed his counsel’s performance arguably fell below an objective 

standard of reasonableness and that he was arguably prejudiced, we reversed and remanded with 

directions to advance Valencia’s petition to the second stage. Id. ¶ 31. In doing so, we stated: 

“We do not, by our ruling, suggest that defendant’s argument will ultimately 

prevail. Rather, we are following long established legal precedent regarding the 

procedural process which must be applied to a postconviction petition. In the 

instant case, the record suggests the trial judge either conflated the first and 

second stages, or he went directly to the second stage when ruling on defendant’s 

petition. We voice no opinion on the ultimate ruling which will result from 

allowing defendant’s petition to advance in the proper procedural sequence.” Id. ¶ 

33. 

¶ 21 On remand, appointed counsel filed a supplemental postconviction petition. The petition 

added the following claims: (1) Valencia’s 26-year sentence is unconstitutional due to his age in 

light of Miller v. Alabama, 567 U.S. 460 (2012); (2) the non-retroactive application of section 5-

4.5-105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)) denies equal 

protections to juvenile defendants sentenced before the statute’s effective date; and (3) that the 

exclusive jurisdiction provision of the juvenile courts is unconstitutional. Counsel filed a motion 

to withdraw Valencia’s claims that his trial counsel was ineffective for failing to call Quevedo as 

a witness and for advice regarding plea negotiations. 
No. 1-21-0583 

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¶ 22 On August 4, 2020, the State filed a motion to dismiss. A hearing was held, after which a 

written order was issued by the trial court. The trial court stated that the court had admonished 

Valencia of his right to testify, that the decision to testify was his alone to make, and that 

Valencia never alerted the court of his desire to testify. The trial court noted that even taking 

Valencia’s allegations as true, his alleged off-the-record conversation with counsel occurred 

before the court’s admonishments. Therefore, Valencia’s allegations of prejudice were 

affirmatively rebutted by the trial court record. 

¶ 23 The trial court rejected Valencia’s claim of actual innocence based on the affidavit of 

Galambos, a fellow inmate of Valencia’s. The court noted that Valencia and Galambos had 

“allegedly never met before they were imprisoned together.” The trial court found that Valencia 

failed to carry his burden where bullets fired from his gun landed in the flowerbed of the victim’s 

house and in a nearby wall. Absent ballistics evidence of his own, the court found that Valencia 

failed to make a substantial showing of a constitutional violation. 

¶ 24 In considering Valencia’s sentence under the eighth amendment, the court noted that the 

26-year sentence was not a de facto life sentence, and therefore did not violate the rule set forth 

in Miller, 567 U.S. 460. The trial court then addressed Valencia’s argument that the mandatory 

20-year firearm enhancement violated the proportionate penalties clause as applied to him 

because it deprived the court of its ability to consider his age, background, and the characteristics 

of youth when crafting an appropriate sentence. The court distinguished Valencia’s case from the 

three cases he relied on in which Illinois courts found that mandatory firearm enhancements 

violated the proportionate penalties clause. See People v. Aikens, 2016 IL App (1st) 133578; 

People v. Barnes, 2018 IL App (5th) 140378; and People v. Womack, 2020 IL App (3d) 170208. 

The court noted that in Aikens, the defendant fired a gun at an occupied police vehicle, “but 
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presented a significant amount of mitigation evidence at sentencing.” In Barnes, the defendant 

robbed a gas station and threatened the clerk with a gun, but the gun was unloaded. And in 

Womack, the defendant shot the victim during a heated argument where the victim threatened to 

shoot the defendant and his family. The trial court noted that in all three cases, the defendants 

had no criminal history. 

¶ 25 The trial court stated that here, Valencia shot at two brothers, completely unprovoked, in 

front of their own homes. The court further noted that Valencia had a prior criminal history 

which included a juvenile adjudication for shooting a gun at an occupied vehicle. The court 

ultimately found that Valencia failed to make a substantial showing that his 20-year firearm 

enhancement violated the proportionate penalties clause as applied to him. Valencia appealed. 

¶ 26 In a decision entered on February 24, 2023, we affirmed the judgment of the circuit court. 

People v. Valencia, 2023 IL App (1st) 210583-U. Valencia subsequently filed a petition for leave 

to appeal in the Illinois Supreme Court. On January 24, 2024, the Illinois Supreme Court denied 

the petition for leave to appeal, but entered a supervisory order directing us to vacate our 

February 24, 2023, judgement, and instructing us to:

“consider the effect of this Court’s opinion in People v. Hilliard, 2023 IL 

128186, ¶ 29 on the issue of whether defendant may challenge his sentence under 

the proportionate penalties clause where the sentence is not a de facto life 

sentence and determine if a different result is warranted.”

¶ 27 We subsequently permitted the parties to file supplemental briefing on the issue of 

whether Valencia may challenge his sentence under the proportionate penalties clause and have 

considered those arguments in our analysis below. 

¶ 28 II. ANALYSIS
No. 1-21-0583 

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¶ 29 On appeal, Valencia contends that that he made a substantial showing in his second-stage 

postconviction petition that: (1) he is actually innocent of attempted first degree murder; (2) he 

was denied effective assistance of counsel which resulted in the denial of his right to testify; and 

(3) his sentence is unconstitutional. The State responds that Valencia’s supporting evidence is 

insufficient to demonstrate a substantial showing of actual innocence, the record rebuts his 

contention that he was denied effective assistance of counsel or the right to testify, and Valencia 

failed to make a substantial showing that his 26-year sentence is unconstitutional as applied to 

him. 

¶ 30 Under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)), 

individuals convicted of criminal offenses may challenge their convictions on grounds of 

constitutional violations. The Act sets forth three stages of review. To survive dismissal at the 

initial stage of a postconviction proceeding, a petition need only present the gist of a meritorious 

constitutional claim, requiring only that the petitioner plead sufficient facts to assert an “arguably 

constitutional claim.” People v. Brown, 236 Ill. 2d 175, 184 (2010). 

¶ 31 At the second stage, “the circuit court must determine whether the petition and any 

accompanying documentation make a substantial showing of a constitutional violation.” People 

v. Edwards, 197 Ill. 2d 239, 246 (2001). The petitioner bears the burden of making this 

substantial showing. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). Unless the petitioner’s 

allegations are affirmatively refuted by the record, they are taken as true, and the question is 

whether those allegations establish or show a constitutional violation. Id. The “substantial 

showing” of a constitutional violation “is a measure of the legal sufficiency of the petition’s 

well-pled allegations of a constitutional violation, which if proven at an evidentiary hearing, 
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would entitle petitioner to relief.” (Emphasis in original). People v. Domagala, 2013 IL 113688, 

¶ 35. 

¶ 32 A. Actual Innocence

¶ 33 Valencia first contends that he made a substantial showing of actual innocence in his 

second-stage postconviction petition. To establish a claim of actual innocence, a petitioner must 

present evidence that is: (1) newly discovered, meaning the evidence was discovered after trial 

and could not have been discovered earlier through the exercise of due diligence; (2) material 

and not cumulative, meaning the evidence is relevant and probative of the petitioner’s actual 

innocence and adds to the information the trier of fact heard at trial; and (3) be of such 

conclusive character that it would probably change the result on retrial. People v. Robinson, 2020 

IL 123849, ¶ 47.

¶ 34 In support of Valencia’s claim that he made a substantial showing in his second-stage 

postconviction petition of his actual innocence, he attached the affidavit of Galambos, whom he 

met at Stateville while serving his sentence in this case. Galambos stated in his affidavit that he 

witnessed the shooting and was standing right by the car when he saw the shooter point the gun 

“upward at an angle, not toward the man yelling.” Galambos averred that he left the scene 

immediately after the shooting because he did not want to be in the area if anything else 

happened. After Valencia told him about the offense, Galambos realized that he had witnessed

the shooting and shared what he had seen. Valencia contends that this newly discovered evidence 

was not positively rebutted by the record and negates the finding that he acted with the requisite 

intent to kill. 

¶ 35 The State concedes that Galambos’ affidavit is considered newly discovered evidence, as 

it could not have been discovered prior to Galambos and Valencia meeting at Stateville. It also 
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concedes that the evidence is material and noncumulative because it is relevant to Valencia’s 

actual innocence. However, it maintains that the result of the trial would not have changed if this 

evidence had been presented since the other trial evidence refuted the testimony in the affidavit.

We agree. 

¶ 36 The evidence presented at trial showed that on June 11, 2009, Valencia initiated an 

argument with two brothers. When one of the brothers yelled, “What you going to do?” Valencia 

pointed a firearm at him and fired five or six shots. According to one of the brothers, Valencia 

shot directly at him. Upon being arrested, Valencia admitted to police that he had shot “at the 

two victims until the gun was empty.” 

¶ 37 At the time of the shooting, one of the brothers was standing in front of his house with his 

back to his neighbor’s house. Fired bullets were found in the flowerbed in front of the brothers’ 

home and embedded into the siding of the neighbor’s house. This physical evidence corroborated 

the brothers’ testimony that Valencia fired at the brothers. 

¶ 38 To accept Galambos’ affidavit as true, we would have to ignore the physical evidence 

presented at trial, and infer, as the trial court noted, that a “bullet naturally fell from the sky so 

close to the victims,” and another bullet “fired upward embedded itself in a wall behind the 

victim.” Accordingly, because Galambos’ affidavit is positively rebutted by the record and is not 

of such conclusive character that it would probably change the result on retrial, we find that 

Valencia failed to make a substantial showing of actual innocence in his second-stage 

postconviction petition. Robinson, 2020 IL 123849, ¶ 47; People v. Sanders, 2016 IL 118123, ¶¶ 

48 (“Well-pleaded factual allegations of a postconviction petition and its supporting evidence 

must be taken as true unless they are positively rebutted by the record of the original trial 

proceedings.”) 
No. 1-21-0583 

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¶ 39 B. Ineffective Assistance of Counsel 

¶ 40 Valencia’s next argument on appeal is that he made a substantial showing in his secondstage postconviction petition that he received ineffective assistance of counsel where trial 

counsel advised him not to testify because of his juvenile adjudication. The State responds that 

the court advised Valencia of his right to testify and ensured that his waiver of that right was 

knowing and voluntary, and therefore there was no ineffective assistance of counsel. 

¶ 41 Every defendant has a constitutional right to the effective assistance of counsel under the 

sixth amendment to the United States Constitution and the Illinois Constitution. U.S. Const., 

amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Claims of ineffective assistance are governed by 

the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 

104 Ill. 2d 504 (1984) (adopting Strickland). To prevail on a claim of ineffective assistance of 

counsel, a defendant must demonstrate that counsel’s performance was deficient, and that the 

deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. More specifically, a 

defendant must show that counsel’s performance was objectively unreasonable under prevailing 

professional norms and that there is a “reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. 

¶ 42 Initially, we note that counsel’s performance was not objectively unreasonable under 

prevailing professional norms. At the time of Valencia’s trial, a criminal defendant’s juvenile 

adjudications could be used against a testifying defendant under certain circumstances. See 

People v. Villa, 2011 IL 110777, ¶ 53 (juvenile adjudications may be admitted against testifying 

defendant if defendant “opens the door” by attempting to mislead the trier of fact about his 

criminal background). 
No. 1-21-0583 

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¶ 43 Moreover, even if we were to find that Valencia made a substantial showing that his 

counsel’s performance was deficient, we would nevertheless find that Valencia was not 

prejudiced because we cannot say that but for counsel’s erroneous advice, the outcome of the 

trial would have been different. 

¶ 44 Every criminal defendant has the fundamental constitutional right to decide whether to 

testify at trial. People v. Knapp, 2020 IL 124992, ¶ 46. Although an attorney may advise his or 

her client on the potential consequences of testifying, the ultimate decision whether to exercise 

that right belongs only to the defendant, and only the defendant may waive the right to testify. Id. 

Generally, an attorney’s performance will not be found ineffective simply because counsel 

advised the defendant not to testify; rather, counsel will only be found to be ineffective where the 

“evidence suggested that counsel refused to allow the defendant to testify.” People v. 

Youngblood, 389 Ill. App. 3d 209, 217 (2009). 

¶ 45 In Knapp, which was issued by our supreme court while this case was pending in the trial 

court after being remanded to second-stage proceedings, the defendant claimed in a 

postconviction petition that he unknowingly and involuntarily waived his right to testify due to 

trial counsel’s erroneous advice. Knapp, 2020 IL 124992, ¶ 33. The defendant alleged that his 

counsel told him that his testimony was not supported by independent evidence and that the 

defendant’s denial of gang affiliation would open the door for the State’s gang expert to testify. 

Id. The defendant averred in his affidavit that he would not have waived his right to testify at 

trial if he had known that his right to testify was not contingent on extrinsic evidence. Id. ¶ 34.

¶ 46 After the circuit court admonished the defendant of his right to testify, the defendant 

advised the court that he understood the decision to testify was his and his alone. Id. ¶ 26. The 

circuit court ultimately dismissed the petition at the first stage, the appellate court affirmed, and 
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the supreme court affirmed the appellate court’s judgment. Id. ¶¶ 2, 35. The supreme court 

explained that, because the circuit court informed the defendant that he had a right to testify, and 

the defendant affirmed that he did not want to testify at trial after counsel’s allegedly deficient 

conduct, the record positively rebutted the defendant’s ineffective assistance claim. Id. ¶¶ 51-54, 

58. 

¶ 47 In doing so, our supreme court stated, “[t]o preserve the right to testify, a criminal 

defendant is required to make a ‘contemporaneous assertion’ of that right.” Id. ¶ 46. The court 

stated that nothing in the record suggested that the defendant “ever alerted the court of his desire 

to testify, that he had any questions about his right to testify, or that he otherwise was unsure 

about waiving his right to testify.” Id. ¶ 51. The court further explained, “[the defendant’s] 

response during the trial court’s admonishments unequivocally rebuts his allegations that his 

decision not to testify was involuntary or based on allegedly erroneous advice from counsel.” Id. 

¶ 54. The court further stated that taking the defendant’s allegations as true, “the alleged off-therecord conversations with counsel on [his] right to testify occurred before the circuit court’s 

admonishments,” and therefore the defendant failed to make even an arguable showing of 

prejudice. Id. We find that the same reasoning applies here. 

¶ 48 In the case at bar, Valencia claims that he did not make a knowing and voluntary waiver 

of his right to testify as his counsel advised against it because his juvenile adjudication would be

used against him. We note, however, that Valencia was admonished in open court about his right 

to testify or not testify, and he was the only person that could make that decision. The court told 

Valencia that the decision about whether a defendant testifies in his or her own defense is “just 

like the decision whether or not you wish to take a jury trial or waive that jury trial. It is a 
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personal decision to you alone.” The court then asked if it was Valencia’s decision not to testify 

in this case, to which he responded, “Yes.”

¶ 49 Valencia never advised the court that he wished to testify during this exchange, and in 

fact, explicitly waived that right. Thus, as in Knapp, Valencia’s responses in open court rebut his 

claim that he involuntarily waived his right to testify, and therefore Valencia was not prejudiced. 

Accordingly, we find that Valencia failed to make a substantial showing in his second-stage 

petition that he was denied the right to testify based on trial counsel’s alleged ineffective 

assistance of counsel. 

¶ 50 C. Sentence

¶ 51 Valencia’s final contention on appeal is that he made a substantial showing in his secondstage postconviction petition that his 26-year sentence, as applied to him, resulted in a sentence 

that violated the proportionate penalties clause. The proportionate penalties clause of the Illinois 

Constitution provides that “[a]ll penalties shall be determined both according to the seriousness 

of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Cons. 

1970, art. I, §11. A sentence violates the proportionate penalties clause if it is “cruel, degrading, 

or so wholly disproportionate to the offense as to shock the moral sense of the community.” 

People v. Miller, 202 Ill. 2d 328, 338 (2002) (Leon Miller). Our supreme court has not defined 

what constitutes a cruel or degrading sentence that is “wholly disproportioned to the offense” 

because “as our society evolves, so too do our concepts of elemental decency and fairness which 

shape the ‘moral sense’ of the community.” Id. at 339. “To determine whether a penalty shocks 

the moral sense of the community, we must consider objective evidence as well as the 

community’s changing standard of moral decency.” People v. Hernandez, 382 Ill. App. 3d 726, 

727 (2008). 
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¶ 52 It is well established that courts unequivocally distinguish juvenile offenders from adults 

when imposing life sentences. See Miller, 567 U.S. 460; Leon Miller, 202 Ill. 2d 328. We know 

that “children lack maturity and have an underdeveloped sense of responsibility, are more 

vulnerable to negative influences, and have character that is not yet well formed.” People v. 

Woods, 2020 IL App (1st) 163031, ¶ 56 (citing Miller, 567 U.S. at 471). In Miller, the Supreme 

Court held that “a sentencing scheme that mandates life in prison without possibility of parole 

for juvenile offenders” violates the Eighth Amendment of the United States Constitution because 

such a scheme, by making the factors of youth “irrelevant to an imposition of that harshest prison 

sentence, *** poses too great a risk of disproportionate punishment.” Miller, 567 U.S. at 479. In 

People v. Buffer, 2019 IL 122327, our supreme court extended the constitutional protections set 

forth in Miller to juvenile defendants sentenced to more than 40 years in prison, finding that a 

sentence of 40 years or less provides a meaningful opportunity to demonstrate maturity and 

rehabilitation and obtain release. Id. ¶ 41. 

¶ 53 Here, Valencia’s sentence of 26 years’ imprisonment is not a mandatory life sentence, 

nor is it a sentence of more than 40 years that our supreme court has determined would constitute 

a de facto life sentence. As such, Valencia’s sentence does not raise the constitutional concerns 

expressed in Miller and Buffer. See Woods, 2020 IL App (1st) 163031, ¶ 57 (juvenile 

defendant’s 33-year sentence did not raise the constitutional concerns in Miller and Buffer). 

Valencia’s sentence, however, did include a mandatory 20-year enhancement because in

committing the offense of attempted murder, he “personally discharged a firearm.” 720 ILCS 

5/8-4(c)(1)(C) (West 2020). Valencia, who was 17 years old when he committed the offense, 

argues that the mandatory firearm enhancement violates the proportionate penalties clause as 
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applied to him because it did not permit the court to give appropriate weight to his youth and 

rehabilitative potential. 

¶ 54 This court has recently discussed this exact issue in Woods, where we noted that our 

supreme court has “clearly upheld the constitutionality of mandatory firearm enhancement 

provisions.” Woods, 2020 IL App (1st) 163031, ¶ 58. “The court determined that these 

provisions did not violate the proportionate penalties clause because the legislature’s purpose in 

enacting them, to account for the added danger when an offender uses a firearm in committing a 

felony, does not ‘shock the conscience of the community.’” Id. (quoting People v. Sharpe, 216 

Ill. 2d 481, 524-25 (2005)). The court in Sharpe reasoned that, in fixing a penalty for an offense, 

the potential for rehabilitation need not be given greater weight than the seriousness of the 

offense. 216 Ill. 2d at 525. 

¶ 55 We further noted in Woods that in People v. Wilson, 2016 IL App (1st) 141500, ¶ 41, 

citing Sharpe, this court held that the application of a 25-year mandatory firearm enhancement to 

a 17-year-old defendant convicted of attempted murder did not shock the moral sense of the 

community. In Wilson, while noting that the defendant had no prior convictions, had a supportive 

family, and felt pressured by peers to shoot the victim, the evidence showed that he “pursued the 

victim down an alley, raised his firearm, and shot at the victim four times before fleeing.” Id. ¶¶ 

41, 43. This court found that, although “there were certain mandatory aspects of defendant’s 

sentence, *** the trial court retained wide latitude to fashion a sentence. Id. ¶ 43. We concluded 

that the defendant’s sentence of 31 years’ imprisonment did not violate the proportionate 

penalties clause. Id. 

¶ 56 Similar to the circumstances in Wilson, the defendant in Woods admittedly carried a gun 

to a location near a high school and bus stop where he got involved in a fight, pulled out a gun 
No. 1-21-0583 

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while fleeing, and then fired shots with about 30 people in the area. 2020 IL App (1st) 163031, ¶ 

60. One of the shots hit an officer, who recovered from his injuries. Id. The trial court 

acknowledged the defendant’s youth and his lack of a significant criminal record but found that 

his actions in firing the gun merited serious consequences. Id. This court found that the trial court 

exercised its discretion in sentencing the defendant, giving him little more than the minimum of 

31 years. Id. Following Wilson, this court found in Woods that the defendant’s 33-year sentence, 

which included a 25-year mandatory firearm enhancement, did not violate the proportionate 

penalties clause. Id. 

¶ 57 Following this same reasoning, we find that Valencia’s 26-year sentence, which included 

a 20-year mandatory firearm enhancement, did not violate the proportionate penalties clause as 

applied to him. The Illinois Constitution provides that “[a]ll penalties shall be determined both 

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

useful citizenship. Ill. Const. 197, art. I, § 11. This constitutional mandate calls for the balancing 

of the retributive and rehabilitative purposes of punishment. People v. Quintana, 332 Ill. App. 3d 

96, 109 (2002). This balancing requires careful consideration of all factors in aggravation and 

mitigation, including “the defendant’s age, demeanor, habits, mentality, credibility, criminal 

history, general moral character, social environment, and education, as well as the nature and 

circumstances of the crime and defendant’s conduct during the commission of it.” Id. 

¶ 58 Here, the court carefully considered Valencia’s youth, bipolar diagnosis, and chaotic 

upbringing. During postconviction proceedings, evidence was presented that Valencia was 

pursuing an education and vocational skills. The trial court also considered Valencia’s criminal 

history and was able to observe his demeanor. The court further noted that Valencia pursued two 

defenseless brothers to their homes, and, unprovoked, fired six shots at them. One of the bullets 
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was recovered in the flowerbed of the brothers’ apartment building, right by where the brothers 

were standing. Recognizing that “[t]he most important sentencing factor is the seriousness of the 

crime,” we find that the trial court was able to exercise its discretion in sentencing defendant by 

giving him the minimum of 26 years in prison. People v. Williams, 2017 IL App (1st) 150795, ¶ 

44. 

¶ 59 Valencia maintains that our standard of moral decency is evolving, and that recent 

legislation enacted by our legislature now authorizes a trial court, in its discretion, to decline to 

impose any applicable firearm enhancement when sentencing a defendant who is under 18 years 

old at the time of the offense. See 730 ILCS 5/5-4.5-105(b) (West 2020). While we acknowledge 

the recent legislation, we note, as we did in Woods, that “there is no indication the General 

Assembly found that application of mandatory firearm enhancements to juvenile defendants 

shocked our sense of moral decency.” 2020 IL App (1st) 163031, ¶ 62. The “new provision did 

not completely eliminate application of the mandatory firearm enhancements to juvenile 

defendants, nor did it make the provision retroactive.” Id. (citing People v. Hunter, 2017 IL 

121306, ¶ 56). “Our legislature clearly believed that, for juvenile defendants, mandatory firearm 

enhancements were appropriate in certain circumstances.” Id. 

¶ 60 Valencia cites three appellate court cases that found the application of an adult sentencing 

scheme that included a mandatory firearm enhancement, to certain juvenile defendants, violated 

the proportionate penalties clause. See Aikens, 2016 IL App (1st) 133578, ¶¶ 1, 37 (17-year-old 

defendant’s 40-year sentence for attempted murder, which included a 20-year firearm 

enhancement, “shocks our evolving standard of moral decency” because defendant had no prior 

criminal history, was full of potential and able to rehabilitate, and had a social history that was 

troubling); Barnes, 2018 IL App (5th) 140378, ¶¶ 1, 25 (finding that the 15-year mandatory 
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firearm enhancement imposed on the 17-year-old defendant who committed armed robbery 

“shocks our evolving standard of moral decency” because the defendant had no prior criminal 

history, had rehabilitative potential, and did not harm anyone during the commission of the 

offense); Womack, 2020 IL App (3d) 170208 (mandatory 20-year firearm enhancement to 

juvenile’s 18-year sentence for attempted murder was unconstitutional as applied to him where 

he shot the victim after the victim threatened to kill his family). 

¶ 61 However, Aikens, Barnes, and Womack are all distinguishable. In Barnes, the 15-year-old 

defendant’s weapon was not actually loaded. Barnes, 2018 IL App (5th) 140378, ¶ 25. In Aikens, 

the 17-year-old received a 40-year prison sentence even though he did not injure anyone and had 

rehabilitative potential. Aikens, 2016 IL App (1st) 133578. In Womack, the court’s 20-year 

mandatory sentencing enhancement was unconstitutional as applied to the juvenile defendant

where the defendant shot the victim during a heated argument where the victim threatened to kill 

the defendant’s family, and the defendant’s total sentence was 38 years in prison for attempted 

murder. Womack, 2020 IL App (3d) 170208, ¶ 18. In all three cases, the defendants did not have 

a prior criminal history. In contrast, Valencia had a prior criminal history that included shooting 

at an occupied vehicle. Additionally, he received the minimum sentence for firing six 

unprovoked shots at two defenseless brothers. 

¶ 62 Our supreme court, in Hilliard, 2023 IL 128186, recently affirmed first-stage summary 

dismissal where a postconviction petitioner, aged 18 at the time of the offense, raised an asapplied challenge to the mandatory 25-year firearm enhancement added to his 15-year sentence 

for attempted first-degree murder. The court found Aikens, Barnes, and Womack distinguishable 

on the basis that the petitioner in Hilliard was an adult, not a juvenile, at the time of the offense 

and expressed no opinion on the merits of those cases. Id. ¶ 35 n.4. The supreme court also 
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rejected the argument that legislative changes supported the petitioner’s as-applied challenge, 

finding it pertinent that “the legislature made a deliberate choice not to extend this discretion for 

individuals who were adults at the time of their offenses.” Id. ¶ 38. Because Valencia was 17 

years old and therefore a juvenile at the time of the offense, Hilliard does not foreclose his asapplied challenge under the proportionate penalties clause. 

¶ 63 Following the Illinois Supreme Court’s supervisory order vacating our prior Rule 23 

order based on Hilliard, Valencia also cites People v. Ellis, 2023 IL App (1st) 221615-U1 as 

further support that the 20-year firearm enhancement is unconstitutional as applied to him. 

However, we find Ellis to be distinguishable. In Ellis, this court recognized the decisions of 

Aikens, Barnes, and Womack, but noted that Womack “was issued over a strong dissent by 

Justice Schmidt, who reasoned in part that Aikens and Barnes had been wrongly decided. Ellis, 

2023 IL App (1st) 221615-U, ¶ 23; Womack, 2020 IL App (3d) 170208, ¶¶ 26-43 (Schmidt, J., 

dissenting). We further noted that the reasoning in Aikens and Barnes was rejected in People v. 

Woods, 2020 IL App (1st) 163031, ¶¶ 61-63. Ultimately, we found that the juvenile defendant’s 

constitutional claim and the facts of his case were appropriately addressed in second-stage 

proceedings. Ellis, 2023 IL App (1st) 221615-U, ¶ 25. We stated that the facts “of [the 

defendant’s] case remain important to his as-applied challenge, but we conclude that he should 

have the opportunity in second-stage proceedings to develop an evidentiary record to support his 

claim.” Id. We reversed the trial court’s first-stage summary dismissal of the defendant’s 

postconviction petition and remanded for further proceedings. Id. ¶ 27. 

¶ 64 Ellis is inapposite to the case at bar. The defendant in Ellis did not discharge his firearm 

during the course of the armed robbery, and received 30 years in prison, including a 15-year 

1 Unpublished Rule 23 orders filed on, or after, January 1, 2021, “may be cited for persuasive purposes.” Ill S. Ct. R. 

23(e)(1) (eff. Feb. 1, 2023).
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firearm enhancement. In sending the postconviction petition back for further proceedings, we 

stated that we “express[ed] no further position on the merits of [the defendant’s] argument.” Id. ¶ 

25. Here, Valencia shot at the victims six times, and received a lesser sentence than the 

defendant in Ellis. Moreover, the defendant in Ellis will have to make a substantial showing of a 

constitutional violation at the second-stage proceedings, which is the same burden Valencia now 

faces. Accordingly, Ellis does not warrant a different result here. 

¶ 65 As a final matter, Valencia argues that the truth-in-sentencing statute, which requires him 

to serve 85% of his sentence, does not allow the sentencing court to consider his youth and any 

other mitigating factors in determining his sentence, and as applied to him, prevents him from 

obtaining an early release based on rehabilitation. It is not entirely clear from Valencia’s opening 

brief whether this is an eighth amendment challenge or a proportionate penalties clause 

challenge. However, this court has rejected similar challenges to the truth-in-sentencing statute 

as applied to juvenile offenders. See People v. Watson, 2022 IL App (1st) 192182, ¶ 23 

(petitioner’s as-applied challenge to the truth-in-sentencing statute must fail because requiring a 

juvenile to serve 100% of a term-of-years, non-de facto life sentence for murder does not violate 

the principles set forth in Miller); People v. Brakes, 2021 IL App (1st) 181737, ¶ 42 (“a juvenile 

defendant’s sentence (whether served at 100%, 85%, or 50%) may be subject to a constitutional 

challenge only if it will keep the juvenile in prison for more than 40 years.”) We find that 

Valencia’s as-applied challenge to the truth-in-sentencing statute must fail because requiring a 

juvenile to serve 85% of a term-of-years, non-de facto life sentence for murder does not violate 

the principles set forth in Miller. Moreover, for a sentence to violate the proportionate penalties 

clause, the punishment must be “cruel, degrading, or so wholly disproportionate to the offense as 

to shock the moral sense of the community.” Leon Miller, 202 Ill. 2d at 338. We do not find that 
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requiring Valencia to serve 85% of his 26-year prison sentence is wholly disproportionate to the 

offense of attempted first degree murder of two defenseless brothers so as to shock the moral 

sense of the community. 

¶ 66 III. CONCLUSION 

¶ 67 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. 

¶ 68 Affirmed.