People v. Allen
Opinion
NOTICE 2025 IL App (4th) 240090-U This Order was filed under FILED Supreme Court Rule 23 and is February 21, 2025 not precedent except in the NO. 4-24-0090 Carla Bender limited circumstances allowed under Rule 23(e)(1). 4th District Appellate IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County SCOTT A. ALLEN, ) No. 19CF607 Defendant-Appellant. ) ) Honorable ) J. Jason Chambers, ) Judge Presiding.
JUSTICE STEIGMNANN delivered the judgment of the court. Presiding Justice Harris and Justice Lannerd concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed the trial court’s summary dismissal of defendant’s postconviction petition, concluding that defendant failed to state the gist of a constitutional claim when, taking as true the facts alleged in defendant’s petition, (1) trial counsel did not render ineffective assistance when he pursued a reasonable “all-or-nothing” defense strategy instead of a theory of self-defense, (2) counsel did not render ineffective assistance when he did not pursue a theory of second degree murder, and (3) defendant’s 50-year aggregate sentence, which was one year over the possible minimum, did not violate the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).
¶2 Defendant, Scott A. Allen, was convicted of three counts of mob action (720 ILCS
5/25-1(a)(1) (West 2018)), aggravated discharge of a firearm (id. § 24-1.2(a)(1)), and three counts
of first degree murder (id. § 9-1(a)(1), (2)), arising from the shooting death of Juan Nash.
Defendant was 18 years old at the time of the crimes. The trial court sentenced defendant to an
aggregate sentence of 50 years in prison—45 years for the first degree murder conviction, with a
mandatory firearm enhancement, and 5 years for the aggravated discharge of a firearm conviction. The court imposed a three-year concurrent sentence for mob action. On appeal, this court affirmed.
People v. Allen, 2022 IL App (4th) 200554-U, ¶ 102.
¶3 In October 2023, defendant pro se filed a petition under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)), alleging (1) trial counsel rendered
ineffective assistance when he did not present a theory of self-defense, (2) counsel rendered
ineffective assistance when he failed to request a second degree murder instruction, and
(3) defendant’s 50 year aggregate prison term was a de facto life sentence that, as applied to him
based on his age and immaturity, violated the Illinois Constitution’s proportionate penalties clause
(Ill. Const. 1970, art. I, § 11) and entitled him to protections similar to those afforded to juvenile
offenders by Miller v. Alabama, 567 U.S. 460 (2012). The trial court summarily dismissed the
petition at the first stage of postconviction proceedings, finding defendant could have raised the
issues on direct appeal and noting it addressed defendant’s age and immaturity when it sentenced
him.
¶4 Defendant appeals, arguing that he stated the gist of a constitutional claim that trial
counsel provided ineffective assistance when he (1) did not present a theory of self-defense and
instead took an “all-or-nothing” approach and (2) failed to request a second degree murder
instruction. He also argues that he stated the gist of a constitutional claim that his aggregate 50-year
prison sentence was a de facto life sentence that violated the Illinois Constitution’s proportionate
penalties clause as applied to him because he was an emerging adult at the time of the offense. We
disagree and affirm the trial court’s dismissal of his postconviction petition.
¶5 I. BACKGROUND
¶6 Portions of the following facts were recited in this court’s disposition of defendant’s
direct appeal. See Allen, 2022 IL App (4th) 200554-U, ¶¶ 5-52. Additional facts not relevant to
-2- this appeal may also be found there.
¶7 A. The Shooting
¶8 On April 2, 2019, a block party was held on Orchard Road in Bloomington, Illinois,
to commemorate the life of David “Vido” Parks. Three videos taken at the party that were shared
on social media were admitted into evidence. The videos showed Nash and others drinking and
smoking what appeared to be cannabis. Defendant responded to one of the videos, and the person
who posted it invited him to come to the party. A video taken after dark showed defendant at the
party wearing a fanny pack.
¶9 At some point, Nyrisha James, Brooklyn Turner, and Donnae Yates met up with
defendant and his friends, Justin Walls, Amari McNabb, and Exodus Herbert. They all then drove
to the party on Orchard Road. Defendant, Turner, James, Herbert, and Walls were in James’s car.
McNabb was in Yates’s car with Yates and another girl. Defendant and some of his friends left the
party to go to a bowling alley in Bloomington. Surveillance video from the bowling alley showed
defendant, McNabb, Herbert, and Walls arriving in a red sedan around 9:21 p.m. Defendant and
Walls were wearing fanny packs slung across their chests.
¶ 10 Around 9:35 p.m., Turner, driving James’s car, drove defendant and his friends
back to the party. As they got out of the car, they told James not to leave. A few minutes later,
Herbert jogged back to the car and told James it was too cold out there for him. After that, there
was an exchange of gunfire in which defendant, Nash, and Nash’s friend, Nathaniel Caldwell, were
shot.
¶ 11 After hearing the gunshots, Turner tried to leave. As she did so, Herbert grabbed
the steering wheel and said, “Don’t leave my brothers.” Defendant, McNabb, and Walls then
returned to the car and told her defendant had been shot. Turner then drove them to the hospital.
-3- Security video from the hospital showed defendant and his friends enter the hospital around 9:54
p.m. It then showed McNabb, Herbert, and Walls leaving about 30 seconds later.
¶ 12 Nash, who had been fatally wounded, drove north down Orchard Road in
Caldwell’s truck, before eventually crashing into a home. Police arrived shortly before 10 p.m. to
find Nash slumped over in the driver’s seat of the truck. He was later pronounced dead at the
hospital. Defendant was subsequently arrested.
¶ 13 B. Pretrial Motion To Continue
¶ 14 Before trial, the trial court conducted a hearing on the State’s motion to continue in
order to receive the results of a gunshot residue test performed on swabs taken from defendant’s
hands at the hospital. During defense counsel’s argument opposing the continuance, the following
colloquy occurred:
“THE COURT: Okay. And I am assuming, [defense counsel], there can be
no stipulations based upon the nature of this evidence that could be entered into to
resolve this particular issue?
[DEFENSE COUNSEL]: Judge—Judge, I apologize. I was reluctant to go
down this road, but after talking with my client we have filed an affirmative defense
in this case. [Defendant] is going to be taking the stand, and he is going to be
arguing self-defense, and he is not going to be arguing with the State that he
discharged a firearm.
So I—I don’t think that the evidence the State’s requesting is—is even—is
necessary at all.”
Counsel also told the court defendant was willing to stipulate he fired a firearm and had gunshot
residue on his hands. The court granted the motion to continue.
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NOTICE 2025 IL App (4th) 240090-U This Order was filed under FILED Supreme Court Rule 23 and is February 21, 2025 not precedent except in the NO. 4-24-0090 Carla Bender limited circumstances allowed under Rule 23(e)(1). 4th District Appellate IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County SCOTT A. ALLEN, ) No. 19CF607 Defendant-Appellant. ) ) Honorable ) J. Jason Chambers, ) Judge Presiding.
JUSTICE STEIGMNANN delivered the judgment of the court. Presiding Justice Harris and Justice Lannerd concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed the trial court’s summary dismissal of defendant’s postconviction petition, concluding that defendant failed to state the gist of a constitutional claim when, taking as true the facts alleged in defendant’s petition, (1) trial counsel did not render ineffective assistance when he pursued a reasonable “all-or-nothing” defense strategy instead of a theory of self-defense, (2) counsel did not render ineffective assistance when he did not pursue a theory of second degree murder, and (3) defendant’s 50-year aggregate sentence, which was one year over the possible minimum, did not violate the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).
¶2 Defendant, Scott A. Allen, was convicted of three counts of mob action (720 ILCS
5/25-1(a)(1) (West 2018)), aggravated discharge of a firearm (id. § 24-1.2(a)(1)), and three counts
of first degree murder (id. § 9-1(a)(1), (2)), arising from the shooting death of Juan Nash.
Defendant was 18 years old at the time of the crimes. The trial court sentenced defendant to an
aggregate sentence of 50 years in prison—45 years for the first degree murder conviction, with a
mandatory firearm enhancement, and 5 years for the aggravated discharge of a firearm conviction. The court imposed a three-year concurrent sentence for mob action. On appeal, this court affirmed.
People v. Allen, 2022 IL App (4th) 200554-U, ¶ 102.
¶3 In October 2023, defendant pro se filed a petition under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)), alleging (1) trial counsel rendered
ineffective assistance when he did not present a theory of self-defense, (2) counsel rendered
ineffective assistance when he failed to request a second degree murder instruction, and
(3) defendant’s 50 year aggregate prison term was a de facto life sentence that, as applied to him
based on his age and immaturity, violated the Illinois Constitution’s proportionate penalties clause
(Ill. Const. 1970, art. I, § 11) and entitled him to protections similar to those afforded to juvenile
offenders by Miller v. Alabama, 567 U.S. 460 (2012). The trial court summarily dismissed the
petition at the first stage of postconviction proceedings, finding defendant could have raised the
issues on direct appeal and noting it addressed defendant’s age and immaturity when it sentenced
him.
¶4 Defendant appeals, arguing that he stated the gist of a constitutional claim that trial
counsel provided ineffective assistance when he (1) did not present a theory of self-defense and
instead took an “all-or-nothing” approach and (2) failed to request a second degree murder
instruction. He also argues that he stated the gist of a constitutional claim that his aggregate 50-year
prison sentence was a de facto life sentence that violated the Illinois Constitution’s proportionate
penalties clause as applied to him because he was an emerging adult at the time of the offense. We
disagree and affirm the trial court’s dismissal of his postconviction petition.
¶5 I. BACKGROUND
¶6 Portions of the following facts were recited in this court’s disposition of defendant’s
direct appeal. See Allen, 2022 IL App (4th) 200554-U, ¶¶ 5-52. Additional facts not relevant to
-2- this appeal may also be found there.
¶7 A. The Shooting
¶8 On April 2, 2019, a block party was held on Orchard Road in Bloomington, Illinois,
to commemorate the life of David “Vido” Parks. Three videos taken at the party that were shared
on social media were admitted into evidence. The videos showed Nash and others drinking and
smoking what appeared to be cannabis. Defendant responded to one of the videos, and the person
who posted it invited him to come to the party. A video taken after dark showed defendant at the
party wearing a fanny pack.
¶9 At some point, Nyrisha James, Brooklyn Turner, and Donnae Yates met up with
defendant and his friends, Justin Walls, Amari McNabb, and Exodus Herbert. They all then drove
to the party on Orchard Road. Defendant, Turner, James, Herbert, and Walls were in James’s car.
McNabb was in Yates’s car with Yates and another girl. Defendant and some of his friends left the
party to go to a bowling alley in Bloomington. Surveillance video from the bowling alley showed
defendant, McNabb, Herbert, and Walls arriving in a red sedan around 9:21 p.m. Defendant and
Walls were wearing fanny packs slung across their chests.
¶ 10 Around 9:35 p.m., Turner, driving James’s car, drove defendant and his friends
back to the party. As they got out of the car, they told James not to leave. A few minutes later,
Herbert jogged back to the car and told James it was too cold out there for him. After that, there
was an exchange of gunfire in which defendant, Nash, and Nash’s friend, Nathaniel Caldwell, were
shot.
¶ 11 After hearing the gunshots, Turner tried to leave. As she did so, Herbert grabbed
the steering wheel and said, “Don’t leave my brothers.” Defendant, McNabb, and Walls then
returned to the car and told her defendant had been shot. Turner then drove them to the hospital.
-3- Security video from the hospital showed defendant and his friends enter the hospital around 9:54
p.m. It then showed McNabb, Herbert, and Walls leaving about 30 seconds later.
¶ 12 Nash, who had been fatally wounded, drove north down Orchard Road in
Caldwell’s truck, before eventually crashing into a home. Police arrived shortly before 10 p.m. to
find Nash slumped over in the driver’s seat of the truck. He was later pronounced dead at the
hospital. Defendant was subsequently arrested.
¶ 13 B. Pretrial Motion To Continue
¶ 14 Before trial, the trial court conducted a hearing on the State’s motion to continue in
order to receive the results of a gunshot residue test performed on swabs taken from defendant’s
hands at the hospital. During defense counsel’s argument opposing the continuance, the following
colloquy occurred:
“THE COURT: Okay. And I am assuming, [defense counsel], there can be
no stipulations based upon the nature of this evidence that could be entered into to
resolve this particular issue?
[DEFENSE COUNSEL]: Judge—Judge, I apologize. I was reluctant to go
down this road, but after talking with my client we have filed an affirmative defense
in this case. [Defendant] is going to be taking the stand, and he is going to be
arguing self-defense, and he is not going to be arguing with the State that he
discharged a firearm.
So I—I don’t think that the evidence the State’s requesting is—is even—is
necessary at all.”
Counsel also told the court defendant was willing to stipulate he fired a firearm and had gunshot
residue on his hands. The court granted the motion to continue. The record reflects that, ultimately,
-4- gunshot residue was not found on defendant’s hands.
¶ 15 C. Trial Evidence
¶ 16 1. Nathaniel Caldwell
¶ 17 At trial, Caldwell testified he drove to the party in his truck. He parked on the street
near a driveway and recalled seeing defendant, McNabb, and Herbert arrive in a gray car. When
the shooting occurred, Caldwell was in the rear driver’s side seat of the truck, talking with another
man, Daronte Thomas, who was in the rear passenger seat. Caldwell heard shots coming from the
direction of the front of the truck and began to run toward the rear of the truck and the sidewalk.
He was shot three times, once through the leg, once through the shoulder, and once in the back.
After the gunfire ended, Caldwell laid behind a car until help arrived. He did not see who fired the
shots and did not know where Nash, defendant, McNabb, and Herbert were located. He recalled
hearing two groups of shots and that they sounded different. Caldwell admitted to being intoxicated
that day.
¶ 18 2. Daronte Thomas
¶ 19 Thomas testified he did not recall exactly who was at the party because he was
drunk and had been smoking cannabis. He also could not recall anything about an interview he
had with Detective Jared Bierbaum, the lead detective in the case. However, Thomas recalled
seeing a muzzle flash in his peripheral vision and hearing shots. He then ran away from the area.
He returned after the gunfire had ceased, found Caldwell had been shot, and stayed with Caldwell
until an ambulance came.
¶ 20 Due to Thomas’s inability to recall some of the events, edited portions from a
recorded interview Thomas gave to Bierbaum were played for the jury. In that interview, Thomas
described seeing between three and four younger individuals. He described their features and
-5- clothing, which generally matched the features and clothing of defendant and his friends. Thomas
recalled the group walked past him to speak with Nash, who was near the sidewalk, and they were
standing around five feet away from Nash. Thomas was talking with other people when he heard
shots. From his peripheral vision, he saw muzzle flashes coming from the general area of the group
toward Nash. He then ran away. He recalled that there was a set of shots, a pause, then another set
of shots.
¶ 21 3. Michael Holton
¶ 22 Michael Holton, Nash’s brother-in-law and an attendee of the party, testified there
were around 15 people at the party at the time of the shooting. Holton was leaning against the hood
of Caldwell’s truck and saw defendant arrive with McNabb. Defendant was wearing a fanny pack.
McNabb, defendant, and Nash had a conversation, and defendant and McNabb then walked off
away from the group. About 5 or 10 minutes later, McNabb and defendant came back. Nash said
to them, “Keep my little brother out of this; he ain’t got nothing to do with it.” Holton then saw a
muzzle flash and saw defendant fire a gun at Nash. Holton ducked and ran away.
¶ 23 Holton was cross-examined regarding his account of the shooting that he had
provided in previous interviews with Bierbaum and another detective. During that interview,
Holton initially denied knowing if there was a “beef” between defendant and Nash. He later
admitted there was a beef between the two that involved Nash’s younger brother, Kajuan Hopson.
Holton theorized the issue might have been due to “killing one of his homies.”
¶ 24 Holton had told the detectives defendant “upped” a gun, and defense counsel
questioned Holton regarding statements he made when the detectives asked how Holton knew that.
In the interview, Holton said he knew defendant “for having guns on him” and said, “I know his
demeanor sometimes.” When asked, “How do you know for sure that he upped the gun?” Holton
-6- told detectives, “I know him to carry a gun.” Bierbaum then told him there was a big difference
between knowing defendant to carry guns and seeing him “up a gun.” Holton did not specifically
say he saw defendant use a gun, and he also said to the detectives, “I ain’t going to lie to you; I
was—I was drinking.” Holton also admitted to smoking marijuana that day.
¶ 25 4. Shawndell Wright
¶ 26 Shawndell Wright, another party attendee, testified he knew defendant because
defendant was the best friend of his deceased brother, Steven Alexander. Alexander was also
known as LS or Little Steve. Wright said his best friends were Vido and Nash. While Wright was
at the party, he saw defendant, McNabb, Herbert, and another man he did not know arrive. After
the four left, Wright called McNabb, who told Wright to “move around,” which he understood to
be a warning to get out of the area. Wright stayed at the party and spoke to Nash, who was talking
about issues Hopson had been having with defendant and his friends. The group then returned, and
Nash got out of the car, saying that he was going to “go holler” at them. Nash then stood in front
of the car, with defendant and his friends huddled in a circle. About 10 to 15 minutes later, Wright
heard two shots, looked up, and saw Nash fall to the ground and begin shooting. He did not see
who fired the first shots, but those shots sounded different than the shots Nash fired. He did not
see anyone else in the area besides Nash. After the shooting stopped, Nash got up, got into
Caldwell’s truck, and drove off.
¶ 27 The State asked Wright about earlier statements he had made during a recorded
telephone conversation with a jail inmate, in which he discussed the shooting. In that call, Wright
identified defendant as Nash’s killer. Portions of the call were read and later played in response to
Wright’s testimony that he did not see anyone fire a gun except Nash.
¶ 28 The defense sought to establish Wright was coerced into identifying defendant as
-7- the shooter, and defense counsel extensively cross-examined him regarding an interview he gave
with Bierbaum. During the interview, Wright initially did not speak with Bierbaum for over an
hour. After Bierbaum stated he would be telling the prosecutor whether or not Wright cooperated,
Wright began speaking with Bierbaum. Bierbaum asked if Wright had received a phone call from
McNabb before the shooting, and Wright said yes. However, McNabb’s phone records showed
that Wright was the one who called McNabb. Defense counsel questioned Wright on that point in
the following colloquy:
“Q. And in response you say, He called me and told me to move around,
correct?
A. Yes.
Q. But he didn’t call you; you called him—
A. I called, yes.
Q. —correct?
Did you just make this up because Detective Bierbaum was threatening you
and prompting you, basically, to say exactly that?
A: Yes.
***
Q. So is it your testimony that you only say that you were told to move
around because of the way that interview played out and the threats that were made
against you?
A. Yes.”
¶ 29 5. Physical Evidence and Autopsy
¶ 30 The police recovered multiple items of evidence from the crime scene, including
-8- cartridge cases and fragments from multiple different caliber bullets. Defendant and Caldwell were
treated for their injuries at a local hospital. A 9-millimeter bullet was recovered from defendant’s
body. A 9-millimeter bullet was also recovered from Caldwell’s body.
¶ 31 An autopsy was performed on Nash by Dr. John Scott Denton. Nash had been shot
four times. He had been shot through the heart by a .25-caliber bullet, which was found lodged in
his spine. He was shot in the lower left arm by a .38-caliber bullet, which fractured his radius and
ulna. Those bullets matched bullets and cartridge cases found at the crime scene. An unfired
Winchester 9-millimeter cartridge was also located in Nash’s pocket. Nash died as the result of the
.25-caliber shot that pierced his heart.
¶ 32 Defendant’s Facebook records showed that, on March 28, 2019, he was discussing
obtaining guns and ammunition for a Facebook user with the name “Al Al Pacino.” On April 2,
2019, Al Al Pacino sent defendant three images of a Beretta 950 Jetfire handgun taken from
Wikipedia. That handgun fires a .25-caliber cartridge. Records taken from McNabb’s cell phone
showed that, on April 2, 2019, McNabb searched Google for images of a GT .380 pistol.
¶ 33 6. Lack of Gunshot Residue on Defendant’s Hands
¶ 34 Detective David Ashbeck testified he went to the hospital after the shooting to
collect evidence. Ashbeck collected a sample from defendant’s hands to test for gunshot residue.
When he did so, defendant was lying shirtless in a hospital bed. Defendant took his hand out from
underneath the blanket as Ashbeck collected the samples. The result of the test was negative for
gunshot residue.
¶ 35 The forensic scientist who analyzed the test concluded defendant may not have
discharged a firearm, and if he did, the particles were either not deposited, removed, or not detected
by the test. She testified that activities such as removing a shirt, rubbing one’s hands against
-9- something, or washing could potentially remove deposited gunshot residue particles.
¶ 36 7. Gang Activity
¶ 37 The State presented extensive evidence concerning defendant’s gang activity.
Bloomington police officer Jack McQueen was accepted as an expert in gang crime analysis and
testified that tattoos indicated Nash was a member of the Black Disciples gang.
¶ 38 Facebook photos of McNabb were admitted into evidence associating him with
gang activity and showing him wearing a tribute shirt that had been distributed among members
of another gang following the death of Alexander, which occurred the summer before Nash’s
death. McQueen also testified he had watched a rap video entitled “Cappin for LS,” in which he
observed McNabb making a gang hand sign. Photographs of Herbert were admitted into evidence
associating him with two gangs.
¶ 39 Photographs from Trevonte Kirkwood’s social media account were admitted into
evidence connecting him to gangs associated with defendant, McNabb, and Herbert. Kirkwood
was murdered in October 2018.
¶ 40 A record of a Facebook conversation between defendant and defendant’s cousin,
Marcel Mayoyo, on April 30, 2019, was admitted into evidence. In that conversation, Mayoyo told
defendant he was on a bus heading to downtown Bloomington and was being followed by Hopson,
who was a rival gang member who had robbed him. Mayoyo indicated he believed Hopson had a
gun. He also described a past confrontation with Hopson. Defendant stated, “We on they ass.”
¶ 41 A video was played for the jury in which defendant was singing. The video
displayed a still image of Herbert and defendant standing together with Herbert displaying gang
signs and defendant flipping off the camera. The lyrics of the song referred to flashing a gang sign
and doing a “drive-by” or shooting rival gang members with either a Glock 33 or an extended
- 10 - round magazine handgun.
¶ 42 The rap video “Cappin for LS” was played for the jury. The video included a photo
of Alexander with the words “Long Live Lil Steve” underneath. The video showed defendant
holding a handgun near his face and donning a ski mask. It also featured McNabb holding two
bags of what appeared to be marijuana. Later in the video, defendant can be seen wearing a fanny
pack slung across his chest and pointing a handgun at the camera. McQueen explained that, from
January 2019 through April 2019, the police had seen an increase in the use of fanny packs to carry
handguns.
¶ 43 8. Kajuan Hopson
¶ 44 Hopson testified that defendant, McNabb, Herbert, and a person he referred to as
“Main,” whom the record indicates was possibly Mayoyo, were associated with a local gang.
Hopson said he was not in a gang but was friends with members of another local gang. He also
testified that Nash was not in a gang. However, Hopson acknowledged he had previously told
Bierbaum that he and Nash were both Black Disciples. Likewise, Hopson testified he did not know
Caldwell’s gang association but had previously told Bierbaum Caldwell was a Black Disciple.
Hopson did not know what gang Vido had associated with. He indicated Alexander had been a
member of a rival gang.
¶ 45 Hopson did not think Alexander’s death was related to Nash’s death. However, he
did believe Nash’s death might be related to Kirkwood’s death. He believed the gang associated
with defendant and his friends blamed Hopson for Kirkwood’s death and, because they could not
get to him, they killed Nash. However, Hopson had not fought, argued with, or received threats
from defendant, McNabb, Herbert, or their gang. Nevertheless, Hopson had previously told police
that he had received threats from defendant’s cousin, Main. He also had previously told police he
- 11 - believed Nash’s death may have been a setup by Wright and another man.
¶ 46 9. Closing Arguments
¶ 47 During closing arguments, defense counsel focused on (1) Holton’s lack of
credibility and (2) evidence that defendant was shot while running away from Nash. Counsel
particularly noted defendant’s hands were negative for the presence of gunshot residue. Counsel
also noted others were charged with murder in the case and questioned why Walls, who had also
been seen wearing a fanny pack, was not charged.
¶ 48 10. The Jury Verdict
¶ 49 The jury found defendant guilty of three counts of first degree murder, aggravated
discharge of a firearm, and mob action. The jury also found defendant personally discharged a
firearm that proximately caused the death of another person.
¶ 50 D. The Sentencing Hearing
¶ 51 The presentence investigation report (PSI) showed defendant had a history of
juvenile offenses involving firearms and a pending adult charge of aggravated unlawful use of a
weapon. His first contact with police was when he was nine years old for mob action and battery.
He had numerous problems in school, with multiple disciplinary actions. He graduated high
school through an online program.
¶ 52 Defendant reported he was raised by his mother and maternal grandmother. He
reported being “ ‘super close’ ” with his mother and “ ‘kind of close’ ” with his father. Defendant
had been diagnosed with bipolar disorder and attention-deficit/hyperactivity disorder. He had
previously been treated for various mental-health issues and provisionally diagnosed with
posttraumatic stress disorder (PTSD). Defendant reported alcohol and drug use and that he had
previously entered a treatment program but was unsuccessfully discharged. The PSI noted
- 12 - defendant had struggled with unaddressed mental-health issues for the majority of his life.
¶ 53 Defendant presented a number of letters in mitigation describing his good character
and asking for lenience.
¶ 54 The State noted defendant was facing a minimum aggregate sentence of 49 years
in prison and a maximum of life imprisonment. The State argued defendant had an extensive
history of gang activity and a criminal history involving weapons. The State asked the trial court
to sentence defendant to 70 years for first degree murder, 10 years for aggravated discharge of a
firearm, and 3 years for mob action.
¶ 55 Defense counsel noted defendant was 20 years old at the time of sentencing.
Counsel asked for 45 years in prison, arguing in part that defendant was an “immature kid” and
“not a grown man.”
¶ 56 Defense counsel did not specifically raise a proportionate penalties argument to the
trial court. However, after discussing aggravating and mitigating factors, the court nevertheless
stated as follows:
“There are some technical issues here that the Court wants to go over for
the record in terms of where things are at as well. At the time of the shooting, you
were 18 years old. Eighteen years, nine months and one day is actually how old you
were at the time this happened. The United States Supreme Court in [Miller v.
Alabama, 567 U.S. 460 (2012), Graham v. Florida, 560 U.S. 48 (2010), Roper v.
Simmons, 543 U.S. 551 (2005),] all dealt with sentencing juvenile offenders to
possible life sentences. And the Court is very familiar with that line of cases.
The Illinois Supreme Court in [People v. Buffer, 2019 IL 122327,] has also
said that a 40-year life sentence or 40-year sentence for a juvenile is a de facto life
- 13 - sentence. And in order for the Court to go over 40 years in any type of sentence,
they have to make certain findings. It has to go through an analysis before it can do
that. And this is a situation to where you are not a juvenile. I must—it might be
nine months and one day, because under 18 we would have been dealing with that
line of cases. But that’s not the situation here. You are an adult, and that’s the way
the Court is sentencing things. So, I’m not limited, and I don’t have a limitation of
[Buffer] that the Illinois Supreme Court put in place. But that doesn’t prevent the
Court from considering a similar analysis that the Buffer court used in the analysis
of that particular situation.
In that situation, the Court used language, the crime reflects a transient
immaturity of youth. The Court noted the defendant lacked maturity and a fully
developed sense of responsibility, which leads to dangerous behavior that is
careless, impulsive, and reckless. And, frankly, when I looked at the facts of that
case, when I have looked at the situation of this case, I couldn’t find a more perfect
description as to what happened in this particular situation. That’s pretty much what
happened.
The Court notes in Buffer that the Supreme Court said a person is vulnerable
to negative influences and outside influences. And, again, we’re dealing with a gang
situation here that turned bad. And the Court, unfortunately, now has to deal with
that situation. And the Court would look at that situation as well. So, totality, I am
considering that. Not limited to all of that information, but I am considering all of
that.
And so, that brings me to where I’m at with regard to the sentence. The
- 14 - legislature, when it addressed the gun enhancement in that particular case, made it
clear that gun offenses and gun violence will not be tolerated. And under nearly all
circumstances in this case, when I have all the aggravating factors, that I would
have anything close to a minimum sentence in this case would not be considered
by the Court. But the legislature has also put in certain factors here that even make
this minimum sentence in this case significant. And so, the Court is looking at that
as well.”
The court then sentenced defendant to the minimum terms of 20 years for first degree murder and
25 years for the firearm enhancement. The court sentenced defendant to five years in prison, one
year over the minimum, for aggravated discharge of a firearm, to be served consecutively. The
court sentenced defendant to a concurrent three-year term for mob action.
¶ 57 Defendant filed a motion to reconsider, alleging the sentence was a de facto life
sentence that was unconstitutional as applied to him because he was 18 years old at the time of
the crime. He also argued the firearm enhancement was unconstitutional as applied. At the hearing
on the motion, the trial court noted it sentenced defendant to the minimum terms for first degree
murder and the firearm enhancement. The court explained it went one year over the minimum for
aggravated discharge of a firearm because of defendant’s juvenile criminal history and because
he was on probation at the time of the offense. Thus, the court denied the motion.
¶ 58 E. The Direct Appeal
¶ 59 On direct appeal, defendant raised three issues, arguing (1) the State failed to prove
him guilty beyond a reasonable doubt because the testimony of Holton and Wright was too
unreliable to establish guilt, (2) the trial court erred by admitting prejudicial evidence of
defendant’s gang affiliation, and (3) he received ineffective assistance of counsel when counsel
- 15 - failed to object to hearsay statements. This court affirmed. Allen, 2022 IL App (4th) 200554-U,
¶ 102.
¶ 60 F. The Postconviction Petition
¶ 61 In October 2023, defendant pro se filed a petition pursuant to the Post Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)), alleging (1) trial counsel rendered
ineffective assistance when he did not present a theory of self-defense and instead chose to argue
the State failed to prove defendant was the shooter; (2) counsel rendered ineffective assistance
when he failed to request a lesser-included offense instruction, indicating, from a reference to
“mitigating circumstances” and a case citation, that counsel should have tendered a second degree
murder instruction; and (3) defendant’s 50-year aggregate prison sentence was a de facto life
sentence, in violation of the Illinois Constitution’s proportionate penalties clause, which entitled
him to protections similar to those afforded to juveniles under Miller.
¶ 62 Defendant attached to his petition an affidavit, in which he averred he returned to
the party after Nash called him and told him they needed to talk. According to defendant, when he
arrived, Nash asked him if he had a problem with Nash or Hopson. When defendant told Nash that
Hopson might not want to talk with him because defendant heard Hopson had something to do
with Kirkwood’s death, Nash became aggressive and threatened to “smoke” one of defendant’s
group. Defendant realized the situation with Nash was not going in a positive direction, and he
turned and started to walk away. Defendant then heard a shot and felt a pain in his lower back. As
he was falling to the ground, he turned his head and saw Nash pointing a gun at him. Defendant
then fired three to four shots in Nash’s direction, and Nash shot defendant in his hip. Defendant
attempted to run but could barely stand up. He averred, “[T]hat[’]s when [Walls] shot Nash in an
attempt to save my life.” He further wrote, “I would be dead right now if [Walls] wasn’t there
- 16 - because [Nash] was walking towards me with his gun pointed at me and he was about to finish me
off and [Walls] came to my rescue when he didn’t have to.”
¶ 63 Defendant averred he told counsel the facts alleged in his petition and affidavit and
counsel responded he would raise the affirmative defense of self-defense. Defendant also noted
counsel’s statement to the trial court at the hearing on the State’s motion for a continuance that
defendant would raise self-defense. Defendant wrote he was under the impression that self-defense
would be the strategy at trial until “in the Eleventh hour,” and after the jury was chosen, counsel
informed him he was changing the “trial strategy” of self-defense to “no defense at all.” Defendant
stated he did not agree with the strategy because Nash shot him in the back and tried to kill him
and defendant would be dead but for Walls shooting Nash to save defendant’s life.
¶ 64 Defendant further averred counsel admitted to him after trial that counsel “knew
that it was his fault why we lost at trial” and counsel would be willing to admit that in
postconviction proceedings. Defendant wrote that counsel told him “how bad he felt about the way
he handle[d] my defense or lack thereof.”
¶ 65 Regarding defendant’s proportionate penalties claim, he argued that because he was
only an 18-year-old young adult when the crime occurred and received a de facto life sentence, he
should have been afforded the type of heightened protection for sentencing juveniles required by
Miller. Defendant alleged he was raised in poverty and he and his siblings were often left alone,
with no parental supervision. He alleged his neighborhood was full of gangs, drugs, and guns and
joining a gang was necessary for self-protection. He alleged he had been robbed and stabbed when
walking to school. He also alleged he carried a gun for protection and noted his previous PTSD
diagnosis. Defendant also attached to the petition evidence of studies addressing the brain
development of emerging adults, suggesting people ages 18 to 24 are not yet fully mature adults
- 17 - because the brain is still developing at that age.
¶ 66 The trial court summarily dismissed the petition, finding the issues forfeited
because they could have been raised on direct appeal. The court also noted defendant did not
specify the lesser-included offense instruction he sought. The court further found it had specifically
considered defendant’s age and immaturity at sentencing.
¶ 67 This appeal followed.
¶ 68 II. ANALYSIS
¶ 69 Defendant appeals, arguing that he stated the gist of a constitutional claim that trial
counsel provided ineffective assistance when he (1) did not present a theory of self-defense and
instead took an “all-or-nothing” approach and (2) failed to request a second degree murder
instruction. He also argues that he stated the gist of a constitutional claim that his aggregate 50-year
prison sentence was a de facto life sentence that violated the Illinois Constitution’s proportionate
penalties clause as applied to him because he was an emerging adult at the time of the offense. We
disagree and affirm the trial court’s dismissal of his postconviction petition.
¶ 70 A. Ineffective Assistance of Counsel
¶ 71 Defendant contends he stated the gist of a constitutional claim that trial counsel
provided ineffective assistance when he (1) did not present a theory of self-defense and instead
took an “all-or-nothing” approach and (2) failed to request a second degree murder instruction.
¶ 72 1. The Applicable Law
¶ 73 a. The Post-Conviction Hearing Act
¶ 74 The Act provides a collateral means for a defendant to challenge a conviction or
sentence for a violation of a federal or state constitutional right. People v. Jones, 211 Ill. 2d 140,
143 (2004). At the first stage of postconviction proceedings, the trial court must determine, taking
- 18 - the allegations as true, whether the defendant’s petition is frivolous or patently without merit. 725
ILCS 5/122-2.1(a)(2) (West 2022). A postconviction petition may be summarily dismissed as
frivolous or patently without merit “only if the petition has no arguable basis either in law or in
fact.” People v. Hodges, 234 Ill. 2d 1, 12 (2009). “A petition which lacks an arguable basis either
in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful factual
allegation. An example of an indisputably meritless legal theory is one which is completely
contradicted by the record.” Id. at 16. At this stage of proceedings, the court acts in an
administrative capacity and screens out postconviction petitions that lack legal substance or are
obviously without merit. People v. Tate, 2012 IL 112214, ¶ 9. The allegations of the petition, taken
as true and liberally construed, need only present the gist of a constitutional claim. People v.
Harris, 224 Ill. 2d 115, 126 (2007). We review de novo the summary dismissal of a postconviction
petition. Id. at 123.
¶ 75 b. Ineffective Assistance of Counsel
¶ 76 “To demonstrate ineffective assistance of counsel, a defendant must show that
(1) the attorney’s performance fell below an objective standard of reasonableness and (2) the
attorney’s deficient performance prejudiced the defendant in that, absent counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding would have been
different.” People v. Jackson, 2020 IL 124112, ¶ 90 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). “A reasonable probability is a probability which undermines confidence in the
outcome of the trial.” People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 84. “Because the defendant
must satisfy both prongs of this test, the failure to establish either is fatal to the claim.” Jackson,
2020 IL 124112, ¶ 90 (citing Strickland, 466 U.S. at 697).
¶ 77 Under the first prong, counsel is afforded wide latitude when making tactical
- 19 - decisions, and the law presumes counsel will faithfully fulfill his or her role envisioned by the
sixth amendment (U.S. Const., amend. VI). Strickland, 466 U.S. at 688-89. Hence, counsel’s
assistance must fall “outside the wide range of professionally competent assistance” considering
all the circumstances. Id. at 690. Further, choices of trial strategy are virtually unchallengeable
because such a choice “is a matter of professional judgment to which a review of counsel’s
competency does not extend.” People v. Cundiff, 322 Ill. App. 3d 426, 435 (2001); see Strickland,
466 U.S. at 690. “Trial strategy includes an attorney’s choice of one theory of defense over
another.” People v. Campbell, 264 Ill. App. 3d 712, 732 (1992).
¶ 78 2. Counsel’s Decision Not To Pursue Self-Defense Here
¶ 79 Defendant contends trial counsel told him self-defense would be the trial strategy,
but counsel changed it at the last minute against defendant’s wishes and instead took the “all-or-
nothing” approach of arguing the State failed to prove defendant was the shooter.
¶ 80 a. Forfeiture
¶ 81 We first note the State contends defendant forfeited his claims because he could
have raised the issue of ineffective assistance of counsel on direct appeal but did not do so.
However, because defendant raised facts concerning ineffective assistance of counsel that do not
appear in the original record—for example, he contends counsel told him the trial would proceed
with a theory of self-defense, but counsel changed the theory at the last minute—we conclude that
defendant did not forfeit these issues. See People v. Williams, 209 Ill. 2d 227, 233 (2004) (holding
the doctrines of res judicata and forfeiture are relaxed where fundamental fairness requires, the
forfeiture stems from the ineffective assistance of appellate counsel, or the facts relating to the
issue do not appear on the face of the original appellate record).
¶ 82 b. This Case
- 20 - ¶ 83 Here, counsel’s choice to pursue an “all-or-nothing” defense was a matter of
reasonable trial strategy. Before trial, counsel initially told the trial court during the hearing on the
State’s motion to continue to obtain gun residue test results that defendant would admit to having
residue on his hands and argue self-defense. However, it was later revealed residue was not found
on defendant’s hands. Counsel then changed course and pursued an “all-or-nothing” defense.
Defendant complains counsel’s decision to change defenses was a poor decision because the lack
of gunshot residue on his hands was easily explained. However, it is not enough that counsel chose
a losing strategy. Instead, the strategy had to be unreasonable or based on a misapprehension of
the law. See People v. Walton, 378 Ill. App. 3d 580, 589 (2007) (noting the decision of counsel to
forgo a theory of self-defense and advance an “all-or-nothing” defense is a matter of valid trial
strategy that is generally not unreasonable unless that strategy is based upon counsel’s
misapprehension of the law); see also People v. Edmondson, 2018 IL App (1st) 151381, ¶ 40
(holding whether to assert the affirmative defense of self-defense is itself a matter of trial strategy).
Here, not only was there evidence defendant did not have gun residue on his hands, but the
witnesses identifying him as the shooter had credibility issues. Meanwhile, in his postconviction
petition and affidavit, defendant still did not admit to committing the crime. He admitted he fired
shots at Nash, but he alleged Walls actually killed Nash. Thus, his additional facts do not support
the view counsel’s decision was unreasonable. Instead, counsel presented a valid defense, even
though it was ultimately unsuccessful.
¶ 84 Further, defendant was subject to a minimum 25-year firearm enhancement for
personally discharging a firearm causing the victim’s death. Counsel could have reasonably wished
to avoid bringing defenses into the trial that would admit to the shooting or bring the jury closer
to finding defendant fired the shots that killed the victim because, if the defense failed, defendant
- 21 - would be facing sentencing on both the murder conviction and the firearm enhancement.
¶ 85 Defendant argues counsel admitted to him after trial that counsel “knew that it was
his fault why we lost at trial” and counsel would be willing to admit that in postconviction
proceedings. He further averred counsel told him “how bad he felt about the way he handle[d] my
defense or lack thereof.” However, defendant does not state counsel admitted to any
misapprehension of the law, and his vague claim regarding counsel’s admission of fault is
unsatisfactory to support such a conclusion. Accordingly, the record does not support a conclusion
that counsel’s decision to pursue an “all-or-nothing” defense was anything other than a valid trial
strategy. Thus, defendant has not stated the gist of a constitutional claim.
¶ 86 3. Counsel’s Decision Not To Request a Second Degree Murder Instruction
¶ 87 Defendant next argues counsel provided ineffective assistance because he failed to
request a second degree murder instruction, against defendant’s wishes.
¶ 88 a. The Applicable Law
¶ 89 A defendant can be found guilty of second degree murder only if the State first
proves all the elements of first degree murder. People v. Neasom, 2017 IL App (1st) 143875, ¶ 39;
see 720 ILCS 5/9-2(a), (c) (West 2018). The defendant then has the burden of proving a mitigating
factor by a preponderance of the evidence. Neasom, 2017 IL App (1st)143875, ¶ 39; see 720 ILCS
5/9-2(c) (West 2018). There are two possible mitigating factors: (1) an unreasonable belief that
self-defense is justified or (2) the presence of an intense passion resulting from serious provocation
by the victim. Neasom, 2017 IL App (1st) 143875, ¶ 40; see 720 ILCS 5/9-2(a)(1), (2) (West 2018).
Defendant argues evidence existed that he had an unreasonable belief that self-defense was
justified.
¶ 90 Although a defendant has the right to decide whether to offer a lesser-included
- 22 - offense instruction, that rule is not applicable to second degree murder, which is a lesser-mitigated
offense. People v. Wilmington, 2013 IL 112938, ¶ 48. As with the decision whether to pursue a
theory of self-defense, whether to request and argue imperfect self-defense to support a second
degree murder instruction is a matter of trial strategy. People v. Acevedo, 2024 IL App (2d)
230048-U, ¶ 45 (citing Walton, 378 Ill. App. 3d at 589).
¶ 91 b. This Case
¶ 92 Here, counsel’s decision to not request a second degree murder instruction was
(1) consistent with his overall trial strategy to pursue an “all-or-nothing” defense and
(2) reasonable for the same reasons previously discussed regarding counsel’s strategy to forgo
arguing self-defense. Defense counsel was reasonable to pursue a defense strategy that would not
require defendant’s admission that he fired shots at Nash. Accordingly, defendant has not stated
the gist of a constitutional claim of ineffective assistance of counsel.
¶ 93 B. Defendant’s Proportionate Penalties Claim
¶ 94 Defendant, who was 18 at the time of the crime, next argues his 50-year sentence
was a de facto life sentence that violated the proportionate penalties clause of the Illinois
Constitution as applied to him because he was an emerging adult at the time of the crime and
science has shown brain development continues into the early twenties.
¶ 95 1. The Proportionate Penalties Clause
¶ 96 Defendant’s as-applied constitutional challenge is rooted in a line of cases
providing heightened protections for juvenile defendants in sentencing under the eighth
amendment of the United States Constitution (U.S. Const., amend. VIII), which prohibits cruel
and unusual punishment. See Miller, 567 U.S. at 479 (holding the eighth amendment prohibits
sentences of mandatory life without parole for juvenile offenders convicted of homicide). The
- 23 - Supreme Court reasoned in Miller that “children are constitutionally different from adults for
purposes of sentencing” because they are less mature and more impulsive and vulnerable to peer
pressure than adults. Id. at 471-74.
¶ 97 Under Miller, a juvenile defendant may be sentenced to mandatory life
imprisonment without parole only after the trial court has considered factors that include, but are
not limited to, the juvenile defendant’s (1) chronological age at the time of the offense and any
evidence of his particular immaturity, impetuosity, and failure to appreciate risks and
consequences; (2) family and home environment; (3) degree of participation in the homicide and
any evidence of familial or peer pressures that may have affected him; (4) incompetence, including
his inability to deal with police officers or prosecutors and his incapacity to assist his own
attorneys; and (5) prospects for rehabilitation. Id. at 477-78.
¶ 98 The Illinois Supreme Court has expanded the Miller protections beyond the context
of mandatory life sentences to include juvenile offenders who receive de facto life sentences.
People v. Reyes, 2016 IL 119271, ¶ 9. The court has defined a de facto life sentence as a prison
term of more than 40 years. People v. Buffer, 2019 IL 122327, ¶ 40.
¶ 99 Defendant acknowledges that he does not have a viable eighth amendment claim
under Miller because he was 18 years old at the time of the offense. It is well established that
offenders who are 18 years and older cannot raise a challenge to their sentences under the eighth
amendment and the Miller line of cases. People v. Harris, 2018 IL 121932, ¶¶ 59-61. Instead, he
presents his claim as a violation of the proportionate penalties clause of the Illinois Constitution.
¶ 100 The proportionate penalties clause states, “All 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. I, § 11. A statute violates the proportionate penalties clause if
- 24 - either (1) the penalty is harsher than the penalty for a different offense containing identical
elements or (2) the punishment for the offense is cruel, degrading, or so wholly disproportionate
to the offense as to shock the moral sense of the community. People v. Williams, 2024 IL 127304,
¶ 24. Defendant challenges his 50-year aggregate sentence under the latter standard.
¶ 101 We review the gravity of the defendant’s offense in connection with the severity of
the statutorily mandated sentence within the community’s evolving standards of decency. Id. We
may determine whether a sentence shocks the moral sense of the community by considering both
objective evidence and the community’s changing standards of moral decency. People v.
Hernandez, 382 Ill. App. 3d 726, 727 (2008).
¶ 102 “[A]n as-applied challenge is dependent on the particular facts and circumstances
of the challenging party.” Williams, 2024 IL 127304, ¶ 25. By presenting an as-applied challenge
to a sentencing statute, the defendant “must ultimately overcome the presumption that the statute
is constitutional by clearly establishing that the statute is invalid as applied to him.” Id.
¶ 103 In cases involving direct appeals, the Illinois Supreme Court has recognized that
young adults between 18 and 21 years old may rely on evolving neuroscience regarding brain
development in juveniles and its correlation to maturity underpinning the Miller decision to
support an as-applied challenge under the proportionate penalties clause of the Illinois
Constitution. See People v. Thompson, 2015 IL 118151, ¶¶ 43-44 (involving a 19-year-old
defendant sentenced to a term of natural life in prison); Harris, 2018 IL 121932, ¶¶ 1, 48
(involving an 18-year-old defendant sentenced to 76 years in prison). In Thompson and Harris, the
supreme court opened the door for young adult defendants to demonstrate that their own specific
characteristics and circumstances were so like those of a juvenile that the imposition of a life
sentence or de facto life sentence imposed without the considerations established in Miller would
- 25 - violate the proportionate penalties clause. Thompson, 2015 IL 118151, ¶¶ 43-44; Harris, 2018 IL
121932, ¶ 48. More recently, the court has also considered a challenge by a young adult who was
sentenced to less than a de facto life sentence, noting a defendant may challenge a sentence of any
length. People v. Hilliard, 2023 IL 128186, ¶ 29.
¶ 104 2. Forfeiture
¶ 105 Initially, we note defendant did not raise his proportionate penalties claim on direct
appeal. He also does not allege ineffective assistance of trial or appellate counsel regarding the
issue. Thus, the State argues defendant forfeited the issue. However, the supreme court has
instructed that such claims are best pursued through postconviction proceedings. See Thompson,
2015 IL 118151, ¶ 44; Harris, 2018 IL 121932, ¶ 48.
¶ 106 We recognize this case presents a circumstance different from typical cases
addressing the matter for the first time in postconviction proceedings because defendant here
actually raised the proportionate penalties issue at sentencing and presented evidence. However,
counsel did not present all of the facts concerning defendant’s background that he alleges in his
postconviction petition and did not present studies regarding brain development in emerging
adults. Because defendant’s petition contains additional factual allegations that were not presented
to the court, we find the matter was not forfeited.
¶ 107 Nonetheless, we conclude defendant is not entitled to an automatic advancement of
his postconviction petition to the second stage because he still must state the gist of a claim that,
taking his factual allegations as true, he was subjected to a sentence that shocks the moral sense of
the community.
¶ 108 Defendant also asks that we read a claim of ineffective assistance of appellate
counsel into his petition. We decline to do so. Although the doctrine of forfeiture does not bar
- 26 - consideration of an issue where the forfeiture stems from the incompetency of counsel on appeal,
a claim of ineffective assistance of appellate counsel must appear in the postconviction petition.
People v. Lacy, 407 Ill. App. 3d 442, 461 (2011).
¶ 109 3. People v. Hilliard
¶ 110 Defendant asserts his 50-year sentence violates the proportionate penalties clause
based on his troubled childhood and lack of maturity. When asserting a violation of the
proportionate penalties clause, “a defendant must show either that the penalty imposed is cruel,
degrading, or so wholly disproportionate to the offense that it shocks the moral sense of the
community; or that it differs from the penalty imposed for an offense containing the same
elements.” People v. Klepper, 234 Ill. 2d 337, 348 (2009). On this issue, we consider Hilliard
particularly informative.
¶ 111 In Hilliard, the defendant, who was 18 when he shot and wounded a man, was
sentenced to 15 years’ imprisonment for attempted murder, with a 25-year mandatory firearm
enhancement. Hilliard, 2023 IL 128186, ¶¶ 1, 6. On appeal, the defendant argued the 25-year
enhancement was unconstitutional as applied to him under the proportionate penalties clause. Id.
¶ 1. The defendant’s challenge was based on Miller, as well as Harris, Thompson, and People v.
House, 2021 IL 125124, which discussed Miller’s application to the proportionate penalties clause.
Id. ¶ 23. The supreme court distinguished the defendant’s reliance on Thompson, Harris, and
House, holding those cases considered the possibility of an 18-year-old or 19-year-old defendant’s
“raising a Miller-based challenge with respect to mandatory life sentences in initial postconviction
petitions,” as opposed to the defendant in Hilliard, who did not receive a mandatory or de facto
life sentence. (Emphases in original and internal quotation marks omitted.) Id. ¶ 27. That
impediment did not, however, foreclose a proportionate penalties clause challenge because a
- 27 - defendant of any age may challenge a sentence of any length. Id. ¶ 29. Nevertheless, the court
rejected the defendant’s as-applied challenge to the mandatory firearm enhancement because the
circumstances of that case had “no arguable basis in law” to conclude the sentence was
unconstitutionally disproportionate as applied to him. Id. ¶ 40.
¶ 112 Notably, the court in Hilliard distinguished the facts of Hilliard from those in
People v. Miller, 202 Ill. 2d 328, 330 (2002) (Leon Miller), a case in which a 15-year-old juvenile
was sentenced to a 50-year term instead of mandatory life as required by statute and, after the State
appealed, the supreme court affirmed the 50-year sentence. The court held that a mandatory
sentence of natural life violated the proportionate penalties clause as applied to the 18-year-old
juvenile defendant when he had moments to decide whether to help accomplices and stood as a
lookout during a shooting in which the defendant never touched the gun. In Leon Miller, the
defendant was automatically transferred for trial as an adult, tried under an accountability theory,
and sentenced under a statue that did not allow for consideration of the defendant’s age or
participation in the crime. Hilliard, 2023 IL 128186, ¶¶ 33-34 (citing Leon Miller, 202 Ill. 2d. at
330-31).
¶ 113 The Hillard court noted Leon Miller was the only case in which the Illinois
Supreme Court had held a mandatory minimum penalty unconstitutionally disproportionate as
applied to a particular offender. Id. ¶ 33. The court determined Leon Miller was “readily
distinguishable” from the case before it where the defendant acted alone, made a deliberate choice
to approach the victim, and fired multiple shots without provocation. Id. ¶ 34. Moreover, the
defendant was an adult who received a partially discretionary sentence, and his total sentence did
not amount to a life sentence. Id. ¶¶ 34-35.
¶ 114 Ultimately, taking as true allegations about the defendant’s troubled childhood, that
- 28 - he had rehabilitative potential, and his brain was not yet fully developed at the age of 18, the
supreme court concluded, when considered in conjunction with the circumstances of the crime, the
defendant’s sentence was “not even arguably cruel, degrading, or so wholly disproportionate to
the offense as to shock the moral sense of the community.” (Internal quotation marks omitted.) Id.
¶ 40. “Rather, [the] defendant’s claim [was] frivolous and patently without merit because it [had]
no arguable basis in law, such that the circuit court did not err in summarily dismissing the
defendant’s petition.” Id.
¶ 115 4. This Case
¶ 116 Although the factual circumstances of Hilliard established a somewhat clearer and
more egregious culpability than defendant’s circumstances in this case and the defendant in
Hilliard was sentenced to an aggregate of 40 years instead of 50, we nevertheless conclude that
Hilliard is applicable here. Notably, Hilliard observed that Leon Miller was the only case in which
the supreme court had held a mandatory minimum sentence unconstitutionally disproportionate as
applied to a particular offender. And as we have noted, Leon Miller is distinguishable from the
present case in many important respects.
¶ 117 Defendant here, as an adult, and under much more egregious circumstances than
the 15-year-old defendant in Leon Miller, was also sentenced to an aggregate prison term of 50
years. Further, he was given the minimum sentences for murder and the firearm enhancement (45
years) after consideration by the trial court of his age and immaturity. And his aggregate sentence
(45 years plus a consecutive sentence of 5 years for aggravated discharge of a firearm) was only
one year over the minimum. As the supreme court noted in Hilliard, the legislative determination
of a particular punishment for a crime is, in and of itself, an expression of the general moral sense
of the people. The distinction between a juvenile and an adult is also significant. We particularly
- 29 - note that, regarding the firearm enhancement, the legislature has afforded the trial court discretion
to impose the enhancement on juveniles, but it deliberately did not extend that discretion to adults.
See id. ¶ 36 (citing 730 ILCS 5/5-4.5-105 (West 2022)); People v. Scott, 2024 IL App (1st)
211173-U, ¶ 16. Also, although the circumstances of the crime in Hilliard were more egregious,
we note that, as in Hilliard, defendant here filed multiple shots. Further, the record establishes
defendant engaged in extensive gang activity and had a juvenile criminal history of weapons
offenses.
¶ 118 Taking the facts alleged in defendant’s petition concerning his troubled childhood
and mental health struggles as true, and taking as true his allegations that his brain was not fully
developed at the age of 18, coupled with the circumstances of the crime, we conclude the trial
court’s imposition of one year over the minimum aggregate sentence was not cruel, degrading, or
so wholly disproportionate to the offense as to shock the moral sense of the community and, as a
result, it does not violate the proportionate penalties clause. See Hilliard, 2023 IL 128186, ¶ 40;
see also People v. Velasquez, 2024 IL App (1st) 231046-U, ¶¶ 35-36 (holding a sentence five years
over the minimum did not violate the proportionate penalties clause); People v. Masters, 2024 IL
App (4th) 230370, ¶¶ 116-117 (applying Hilliard after third-stage postconviction proceedings and
finding a de facto life term of 115 years for an 18-year-old offender did not violate the
proportionate penalties clause). We note that our conclusion is particularly appropriate in any case
when, as here, defendant received the minimum sentence for murder and the minimum mandatory
firearm enhancement. See Scott, 2024 IL App (1st) 211173-U, ¶ 16.
¶ 119 Moreover, even if defendant’s claim had an arguable basis in the law, a remand for
resentencing would be futile because the trial court generally already took into consideration the
relevant facts and circumstances at sentencing. The court specifically stated it took defendant’s
- 30 - age and immaturity into account when it imposed the minimum sentences for murder and the
firearm enhancement. Defendant’s troubled childhood was already well-reflected by the PSI, and
the court specifically found that he lacked maturity. Contrary to defendant’s assertions in his
postconviction petition, he was already afforded a sentencing procedure that considered his age
and immaturity. Accordingly, we hold that defendant’s claim was frivolous and patently without
merit because it has no arguable basis in law, such that the trial court did not err in summarily
dismissing the defendant’s petition.
¶ 120 5. De Facto Life Sentence
¶ 121 Last, we note the State raises the issue of whether a de facto life sentence existed
at all when, under fairly new legislation, a person under the age of 21 is able to seek parole after
serving 20 years for first degree murder. Defendant here is eligible under that statute. See 730
ILCS 5/5-4.5-115(b) (West 2022).
¶ 122 In People v Kendrick, 2023 IL App (3d) 200127, ¶ 43, the Appellate Court, Third
District, held there was no de facto life sentence when a defendant could seek parole after 20 years.
Kendrick noted previous Illinois Supreme Court cases stating that, in assessing whether a de facto
life sentence has been imposed, the court must consider the defendant’s earliest opportunity for
release. See id. ¶ 43 (citing cases). In People v. Spencer, 2023 IL App (1st) 200646-U, ¶ 143,
appeal docketed, No. 130015 (filed Sept. 13, 2023), the Appellate Court, First District, adopted
the view of Kendrick.
¶ 123 We note Kendrick and Spencer were decided before Hilliard, which held a
defendant may challenge a non-de facto life sentence under the proportionate penalties clause. We
also recognize Spencer is pending appeal in the supreme court. However, while not necessary to
our determination that defendant’s aggregate 50-year sentence did not violate the proportionate
- 31 - penalties clause, and thus he did not state the gist of constitutional claim, we believe the
applicability of section 4.5-115(b) supports our determination because, in addition to receiving an
aggregate sentence of only one year over the minimum, defendant will also have the opportunity
to seek parole after 20 years.
¶ 124 III. CONCLUSION
¶ 125 For the reasons stated, we affirm the trial court’s judgment.
¶ 126 Affirmed.
- 32 -
2025 IL App (4th) 240090-U (People v. Allen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.