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, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 00 CR 15008 ) ORVIN AGOSTO, ) Honorable ) Ursula Walowski, Defendant-Appellant. ) 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
¶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.
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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
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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.
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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 gang-
related. 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.”
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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
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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
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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
8 No. 1-22-0636
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
9 No. 1-22-0636
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
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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;
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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.
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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,
13 No. 1-22-0636
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
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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.
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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.
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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.
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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
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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
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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.
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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.