People v. Brannon

2021 IL App (1st) 180066-U

• Court: Appellate Court of Illinois
• Decided: May 11, 2021
• Docket: 1-18-0066
• Status: Unpublished

Opinion

2021 IL App (1st) 180066-U

Order filed April 26, 2021 Dissent modified on denial of rehearing July 6, 2021

FIRST DIVISION

No. 1-18-0066

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 14 CR 4843 ) ) ) TYREE BRANNON, ) Honorable ) Thaddeus Wilson, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE PIERCE delivered the judgment of the court. JUSTICE COGHLAN concurred in the judgment. JUSTICE HYMAN dissented.

ORDER

¶1 Held: Trial counsel was not ineffective. Defendant received a de facto life sentence, but there was no constitutional violation where the trial court carefully considered the necessary factors before imposing sentence.

¶2 Following a jury trial, defendant Tyree Bannon was found guilty of first-degree murder

for shooting and killing Deonte Womack (720 ILCS 5/9-1(a) (West 2012)) and attempt first-

degree murder (720 ILCS 5/8-4(a) (West 2012); 720 ILCS 5/9-1 (West 2012)) and aggravated

battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2012)) for shooting and injuring Kevon 1-18-0066

Carmichael Herring and was sentenced to 50 years’ imprisonment. On appeal, he argues: 1) trial

counsel was ineffective for not requesting a Lynch Instruction, for not arguing second degree

murder, and for conceding that the facts of the case did not support a finding of second degree

murder; and 2) the trial court erred in sentencing 17-year-old Tyree Brannon to a 50-year prison

term, where the court imposed a de facto life sentence under People v. Buffer without adequately

considering his youth and attendant characteristics, in violation of the federal and state

constitutions. For the following reasons, we affirm the judgment and sentence of the trial court.

¶3 BACKGROUND

¶4 At trial, Jocelyn Taylor testified that she was the mother of Deonte Womack and she had

last seen him on the morning of December 10, 2013, at 7:00 a.m. Deonte was twenty-one years

old. She learned that Deonte had been taken to the hospital because he had been shot. Deonte

died at 2:53 p.m. on December 10, 2013.

¶5 Kevon Carmichael-Herring testified that on January 26, 2014, he spoke to Detective

Kienzle and Assistant State's Attorney (ASA) Suzi Collins at Area Central about the shooting on

December 10, 2013, and gave a videotaped statement. Kevon largely repudiated the statement

he provided to Detective Kienzle and ASA Collins, and he refused to identify defendant as the

person that shot him and Deonte Womack. His prior videotaped statement to Assistant State's

Attorney Collins describing the shooting and identifying defendant as the shooter was admitted

as substantive evidence at trial.

¶6 Kenya Carmichael testified that she was the mother of Kevon Carmichael-Herring and

Kier Carmichael-Smith. She, along with several other friends and family members, visited

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Kevon at Northwestern Hospital on December 10, 2013, and during her visit, Kevon said that

defendant shot him.

¶7 ASA Collins testified that on January 26, 2014, she was assigned to the felony review

unit when she received an assignment to go to Area Central. There, she spoke to Detective

Kienzle and Kevon Carmichael-Herring. Kevon agreed to speak with her about the incident from

December 10, 2013, and agreed to give a videotaped statement. In his videotaped statement that

was published to the jury, Kevon said that on December 10, 2013, he was at his mother's house

at 67th Street and Paxton Avenue. Deonte Womack, whom he had known since he was five

years old, met up with Kevon at Kevon's mother's house between 10:00 and 10:30 a.m. Deonte

had brought guns with him and they left Kevon's mother's house with the guns to go to the store

to get snacks. Deonte had insisted that they take the guns with them. Kevon took a silver .357

Magnum handgun, and Deonte took a black .45 caliber handgun. They put the guns in their

waistbands.

¶8 Kevon and Deonte left the house between 11 and 11:20 a.m. They first went to a store at

71st Street and Clyde Avenue. They bought some snacks and then went eastbound on 71st Street

toward Paxton Avenue. Deonte then wanted to go into a different store at 71st Street and Paxton

Avenue, so they both went into the store. While inside the store, Kevon saw Darrion Holmes,

also known as "Diesel," come into the store with two other males. Kevon waited by the door

while Deonte went to the back of the store and then came back to the front of the store. Kevon

thought that the two males that had come into the store with Diesel were acting suspicious, so he

went outside the store to see what was going on. When he exited the store, he saw defendant

walking toward the store with another male. Kevon had known defendant for about four years

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and saw him almost every day. Kevon knew defendant by his nickname, "Eastwood." Kevon's

younger brother, Kier Carmichael-Smith, was also outside the store.

¶9 Deonte then came out of the store, and Deonte and defendant started talking to one

another. Defendant was telling Deonte that he wanted Deonte to give him something, but

Deonte refused and repeatedly told him “no.” Kevon and Deonte then walked down Paxton with

Kier. Defendant followed them with several other males, including Alfontish Cockorham and

Darrion Holmes. The group walked until they got near the CHA housing at 7034 South Paxton

Avenue where they stopped. Deonte and defendant continued to argue. Defendant then

demanded that Deonte give him something and told Deonte that he owed him something.

Defendant then pulled a 9-millimeter handgun out of his pocket and started firing. He shot

Deonte twice as Deonte was walking away from defendant. Deonte was about a foot away from

defendant when defendant shot him. Defendant shot Deonte in the back and in the back of the

head. Kevon reached for his gun in his waistband and defendant shot Kevon in the right hand.

Defendant then shot Kevon two more times in the right leg and the shoulder as Kevon tried to

run away. There was nobody else shooting at that time. At no point did either Kevon or Deonte

pull out their guns before they got shot.

¶ 10 Kevon then saw that defendant's gun was stuck in the cocked-back position and saw

defendant run off. Kevon had fallen to the ground, and while he was on the ground, he took out

his gun from his waistband and threw it. He told his brother, Kier, to take the gun and give it to

Quell's father, who lived in the CHA building. Kier took the gun and gave it to one of the

residents at the CHA housing.

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¶ 11 An ambulance came and took Kevon to Northwestern Hospital where he was treated for

his injuries, which required surgery for a shattered femur. He later told his mother, his brothers,

and a few of his friends that came to visit him in the hospital that defendant was the person that

shot him.

¶ 12 Detective Daniel Kienzle testified that he was assigned to investigate this case on

December 10, 2013, and after arriving on scene at 71st Street and Paxton Avenue, he learned that

Deonte and Kevon had been transported to Northwestern Hospital and that Deonte had died as a

result of his injuries.

¶ 13 Detective Kienzle met with Kevon and his mother at Area Central on January 26, 2014.

Detective Kienzle and A.S.A. Collins spoke with Kevon at around 7:00 p.m. on January 26,

2014, and Kevon then agreed to have his statement videotaped.

¶ 14 Donald Smith, an eyewitness who was living at 7026 South Paxton at the time, testified

that he was at home watching television at around noon on December 10, 2013, when he heard

five gunshots. Donald then went to his back porch and saw two men running down the alley and

then stop in a parking lot. Donald heard one of the men say to the other, "put it over there."

Donald then saw one of the men take a gun from his waistband and put it in the snow. Donald

then saw the two men walk toward the next street over, Merrill Avenue. Donald spoke to police

and showed them where he saw the two men hide the gun.

¶ 15 James Allen, another eyewitness who was living on Paxton Avenue between 70th Street

and 71st Street, testified that he was at home around noon on December 10, 2013, watching

television in his bedroom when he heard about five gunshots. James ran to his front window and

looked out and saw the victims laying on the ground. On his way out to help the two victims,

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James saw a police officer and flagged her down. James pointed out to the police officer where

the two victims had been shot and then went back to his home. On his way up the stairs, he saw a

young man wearing a grey hoodie throw an object into a salt bucket. James then looked into the

salt bucket and saw a gun, which he then threw under a dumpster behind his home. After

speaking with police, James pointed out where he had thrown the gun under the dumpster.

¶ 16 Dr. Marta Helenowski, an assistant medical examiner at the office of the Cook County

Medical Examiner, testified that she was assigned to perform an autopsy on Deonte Womack on

December 11, 2013. Dr. Helenowski observed that Deonte had a gunshot wound to the head,

with an entrance wound to the back of the head, slightly to the right of the midline in the back,

and an exit wound just above the entrance wound in the back of the head toward the right. She

did not see any evidence of close-range firing. Although the bullet did not penetrate the skull, it

did cause a fracture in the skull. There was some hemorrhage in the cranial cavity due to the

impact of the gunshot wound to the head. She also observed a gunshot entrance wound to

Deonte’s back. She did not see any evidence of close-range firing. The wound path was from the

upper back through the neck and exiting on the right side of the chin or neck area. Dr.

Helenowski determined that the cause of death was multiple gunshot wounds, and that the

manner of death was homicide.

¶ 17 Chicago Police Officer Robert Zielinski testified that he and Officer Peter Ujda

responded to call of shots fired at 7034 South Paxton Avenue at approximately 12:22

p.m. on December 10, 2013. When Officer Zielinski arrived, he saw Deonte Womack laying on

the sidewalk, and Kevon Carmichael-Herring lying next to the curb in the street. Paramedics

were treating the two victims. The paramedics that were treating Deonte called Officer Zalinski

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over and pointed out a handgun that was in Deonte's waistband. Officer Zalinski removed the

handgun and saw that it was a Hi-Point .45 caliber semiautomatic handgun loaded with four live

rounds.

¶ 18 Evidence Technician Angelo Marconi of the Chicago Police Department testified that he

and his partner, Michael Mazurski, arrived at 7032 South Paxton Avenue to process the scene

and recover evidence. Marconi recovered two 9-millimeter shell casings on the sidewalk near

7032 South Paxton that were inventoried. Marconi also recovered a Ruger .357 revolver that

James Allen had thrown under the dumpster. The .357 revolver was fully loaded with six live

rounds. Marconi then recovered the Ruger .9-millimeter semiautomatic handgun that Donald

Smith had seen the two men hide in the snow. The .9-millimeter handgun was in an open slide

lock position and had no live rounds in it. The .9-millimeter handgun was inventoried.

¶ 19 There was a stipulation that if called to testify, Gregory Hickory would testify that he was

a forensic scientist specializing in firearms identification and analysis at the Illinois State Police

Crime Lab. He would further testify that the two .9-millimeter shell casings that were inventoried

were fired from the 9-millimeter handgun that was recovered.

¶ 20 Detective William Levigne testified that on February 13, 2014, he was assigned to locate

and arrest defendant. He went to the location of 8101 South Ada Street along with several

partners and they were allowed into the house by an older woman. Defendant was found

underneath a bed on the upstairs level and was placed under arrest and taken to Area Central.

¶ 21 Sergeant Sean Ryan, a detective on December 10, 2013, testified that he arrived at 7034

South Paxton after Kevon Carmichael- Herring and Deonte Womack were taken to the hospital

to look for surveillance video that may have recorded the events that took place before, during,

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and after the shooting. Sergeant Ryan recovered Chicago Police Department POD video

surveillance from the location of 7100 South Paxton Avenue, video surveillance from the

townhomes at 7034 and 7040 South Paxton Avenue, as well as video surveillance from 7060

South Paxton Avenue, and video surveillance from 7024 to 7032 South Paxton Avenue and 7031

South Merrill Avenue.

¶ 22 Sergeant Ryan, along with Detective Russell Marillo, presented Kevon Carmichael-

Herring with a photo array on January 26, 2014. Kevon looked at a photo array and identified

defendant in the photo array as the person that shot Kevon and Deonte Womack. The State

rested.

¶ 23 Defendant testified that he was seventeen years old in December of 2013. He had known

Deonte Womack for about five to six years and Kevon Carmichael-Herring for about seven to

eight years. On December 9, 2013, defendant was with Deonte Womack, Dontrell Trotter, and

Devonte Boldin near 71st Street and Clyde Avenue. At that time, Deonte was arguing with

Dontrell about a weed exchange because Deonte felt he had been shorted. Defendant tried to

mediate the situation and Deonte got aggressive and loud with defendant. When defendant told

Deonte, he did not have anything to do with it, Deonte pulled out a gun and pointed it at

defendant. Defendant then took off running toward the next block. Defendant called Deonte

about thirty to forty-five seconds later and asked Deonte why he pulled a gun on him, and

Deonte told him “it’s cracking,” which defendant understood to mean that Deonte was going to

shoot to kill.

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¶ 24 After speaking with Deonte, defendant was worried and he called Kevon, who was

Deonte's best friend. Defendant agreed to meet on Paxton Avenue the following day to talk the

situation out with Deonte and Kevon.

¶ 25 On December 10, 2013, defendant was walking down Paxton Avenue with Arion

Holmes, Alfontish Cockerham, Deonte Womack, Kevon Carmichael- Herring, and Kier

Carmichael-Smith. Defendant had a gun in his pocket. When he initially saw Deonte and

Kevon at 70th Street and Paxton Avenue, he did not see a gun in either of their waistbands. As

they walked, defendant and Deonte talked about the incident that had happened the day before,

where Deonte had pulled a gun on defendant. Defendant testified that Deonte was being

aggressive and loud as they spoke. Defendant asked Deonte why he would pull a gun on him.

Deonte responded that “it was cracking,” which defendant understood to mean that Deonte was

going to shoot or kill him. Defendant felt scared. When Deonte reached for his waistband,

defendant shot Deonte in the back. Deonte was about a foot or two away when defendant shot

him. Once Deonte was on the ground, defendant shot him again in the head. Defendant testified

that he never saw Deonte's gun but claimed that he feared for his life as he was certain that

Deonte was going to shoot him.

¶ 26 After defendant shot Deonte, he saw Kevon reaching for his waistband, so he shot Kevon

three times. Defendant was certain that Kevon was going to shoot and kill him. Kevon was

about a foot or two away when defendant started shooting him. Defendant fired all the bullets he

had in the gun, first shooting Kevon in the right hand. After Kevon no longer had a gun in his

hand, defendant continued to shoot at him. Defendant also shot Kevon in the back of the leg as

Kevon was running away from defendant.

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¶ 27 After the shooting, defendant did not wait for police to arrive. He ran away with his gun

and buried it in a snowbank. He then fled to Minnesota. He was later arrested. After his mother

arrived at the police station, defendant spoke with police and initially lied to them about what

happened. He initially told police that he was at home with his sister, Latifa Brannon, on

December 10, 2013. He did not tell police what happened on December 9, 2013. He later told

police that on December 9, 2013, Deonte pulled a gun on him after his friend tried to rob Deonte.

He then told police that he called Deonte later December 9, 2013, and the conflict was over then.

The defense rested.

¶ 28 The jury returned verdicts of guilty of first- degree murder, guilty of attempt first-degree

murder, and guilty of aggravated battery with a firearm. After considering the arguments in

aggravation and mitigation, the court sentenced defendant to 50 years for first-degree murder and

a consecutive 15-year term for attempt first-degree murder. The court specifically declined to

impose any sentence enhancements with respect to those counts.

¶ 29 Defense counsel filed a motion to reconsider sentence. After hearing arguments on the

motion, the trial court reduced the 50-year sentence it had initially imposed for first-degree

murder to 35 years. The court did not change the 15-year sentence it initially imposed for the

attempt first-degree murder. Defendant appealed.

¶ 30 ANALYSIS

¶ 31 Defendant first argues that defense counsel was ineffective when he failed to request the

use of Illinois Pattern Instruction Criminal 3.12X after successfully seeking admission, under

Lynch, of the victim’s prior act of violence toward defendant. Specifically, defendant argues that

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“[c]ounsel’s failure to request IPI 3.12X prejudiced [defendant] because the jury was not

provided with the information it needed to fully and properly consider [defendant’s] defense.”

¶ 32 To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1)

counsel’s performance was deficient and (2) counsel’s actions resulted in prejudice to the

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Evans, 209 Ill. 2d 194,

220 (2004). Under the first prong, a defendant must demonstrate that his attorney’s performance

fell below an objective standard of reasonableness. Evans, 209 Ill. 2d at 220. Under the second

prong, prejudice is shown where there is a reasonable probability that the result would have been

different but for counsel’s alleged deficiency. Id. Failure to satisfy either prong of the Strickland

test precludes a finding of ineffective assistance of counsel. Strickland, 466 U.S. at 697.

¶ 33 Defendant argues that, although the trial court admitted defendant's Lynch evidence

demonstrating the victims’ prior violent acts, defense counsel failed to request an instruction on

how to weigh that evidence and therefore “lacked the necessary tools to analyze the evidence

fully and to reach a verdict based on those facts.” Specifically, defendant claims that the jury

should have been given IPI Criminal 4th No. 3.12X, which instructs the jury on Lynch evidence.

IPI Criminal 4th No. 3.12X provides:

“In this case the State must prove beyond a reasonable doubt the proposition that

defendant was not justified in using the force which he used. You have [ (heard

testimony) (received evidence) ] of ____’s [ (prior conviction of a violent crime) (prior

acts of violence) (reputation for violence) ]. It is for you to determine whether ___ [ (was

convicted) (committed those acts) (had this reputation) ]. If you determine that ____ [

(was convicted) (committed those acts) (had this reputation) ] you may consider that

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evidence in deciding whether the State has proved beyond a reasonable doubt that the

defendant was not justified in using the force which he used.”

¶ 34 After a review of the instructions given to the jury, we find defendant suffered no

prejudice as a result of counsel’s failure to request IPI Criminal 4th No. 3.12X. When reviewing

the adequacy of jury instructions, a court must consider all of the instructions as a unit to

determine whether they fully and fairly covered the law. People v. Cooper, 2013 IL App (1st)

113030, ¶ 110. The other instructions given to the jury allowed them to properly consider the

evidence of Deonte Womack pointing a gun at defendant on December 9, 2013. The court

instructed the jury that “A person is justified in the use of force when and to the extent that he

reasonably believes that such conduct is necessary to defend himself against the imminent use of

unlawful force.” The court further instructed the jury that “a person is justified in the use of

force which is intended or likely to cause death or great bodily harm only if he reasonably

believes that such force is necessary to prevent imminent death or great bodily harm to himself.”

The trial court also instructed the jury, “The evidence which you should consider consists only of

the testimony of the witnesses, stipulations, and the exhibits to which the Court has received.

You should consider all the evidence in the light of your own observations and experience in

life.” Having these instructions, the jury was instructed that they could consider the evidence

that Deonte Womack pointed a gun at defendant on December 9, 2013, to determine whether

defendant reasonably believed it was necessary to shoot Deonte Womack on December 10, 2013.

There was no limiting instruction related to the December 9 incident so the jury was instructed to

consider that evidence as it would consider all other evidence in reaching its verdict. The jury

could accept or reject that evidence, along with all the other evidence, and it could give that

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evidence whatever weight it deemed appropriate. Thus, even absent IPI 3.12X, if the jury

credited the December 9 evidence it would necessarily have factored into its determination of

whether the State proved its case beyond a reasonable doubt. Therefore, IPI 3.12X was not “so

critical to the defense” that counsel’s failure to request it denied defendant a fair trial. Defendant

suffered no prejudice as a result. People v. Falco, 2014 Il App (1st) 11197, ¶ 16, and our

confidence in the jury’s verdict is not undermined.

¶ 35 Defendant next claims that counsel was ineffective when he requested an instruction on

second degree murder but did not argue the alternative defense of second-degree murder to the

jury. Although counsel did request an instruction on second-degree murder, he argues that his

attorney’s closing argument was inconsistent with the defense-requested instruction of second-

degree murder.

¶ 36 Defendant’s argument fails because defendant’s defense was that he was acting

reasonably in self-defense and was not guilty. It would be inconsistent for defense counsel to

argue that defendant had both a reasonable belief in the need for self-defense (not guilty) and he

had an unreasonable belief in the need for self-defense (guilty of second-degree murder).

Counsel’s argument told the jurors that defendant’s belief in the need to use force would have

been unreasonable – under second-degree murder – if the victims were not armed. But, because

the victims were armed, defendant’s belief was reasonable and he, therefore, acted in self-

defense and was not guilty of the charges.

¶ 37 Support for our conclusion comes from People v. Armstrong, 244 Ill.App.3d 545 (1993).

In Armstrong, the issue was whether the defendant's trial counsel was ineffective, where counsel

tendered an instruction on the offense of second-degree murder but told the jury that it should

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disregard it. Id. at 553-54. Defense counsel’s theory was that the defendant was not guilty

because he had acted in self-defense. Id. We held that trial counsel was not ineffective, because

counsel's argument did not deny the jury the opportunity to find the defendant guilty of second-

degree murder. Id. Similarly, here, while defense counsel did not specifically argue to the jury in

support of the lesser offense of second-degree murder instruction, nothing in counsel's closing

argument precluded the jury from finding defendant guilty of that offense. See People v. Walton,

378 Ill.App.3d 580, 589 (2007) (noting that the tender of an instruction on a lesser-included

offense gives the jury the option to convict the defendant of the uncharged lesser-included

offense).

¶ 38 Finally, defendant argues that we should vacate his sentence and remand for a new

sentencing hearing because an aggregate 50-year sentence (comprised of consecutive sentences

of 35 years for first-degree murder and 15 years for attempt first-degree murder) is an

unconstitutional de facto life sentence pursuant to People v. Buffer, 2019 IL 122327. The State

agrees that defendant’s sentence is a de facto sentence under Buffer but argues that because it

was clear that the trial court wanted to impose a substantial prison sentence, without imposing a

de facto life sentence, the proper remedy is for this Court to reduce defendant’s aggregate

sentence to 40 years.

¶ 39 It is clear from the record that the court knew of the Miller considerations, decided in

2012, more than five years before the sentencing in this case, and wanted to impose a substantial

sentence in this case without imposing a de facto life sentence. It inquired of both the State and

defense their view on what a de facto life sentence was. The State was equivocal, and the defense

opined it would be a term of years of more than 49 years for the average person in the federal

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system. At the time of sentencing, our supreme court had not determined what term of years

would constitute a de facto life sentence, so the trial court fashioned a sentence that it believed

was not a de facto life sentence as evidenced by its ultimate sentence reduction and its refusal to

impose the 25-year firearm enhancement. However, it is also clear that despite the trial court’s

efforts and belief that the 50-year aggregate sentence was Miller compliant and was not a de

facto life sentence, under Buffer, defendant did in fact receive a de facto life sentence because the

sentence imposed was more than 40 years. The question is whether the de facto life sentence

imposed complies with the directives of our supreme court related to juvenile sentencing.

¶ 40 Recently, in People v. Lusby, 2020 IL 124046, our supreme court reversed the appellate

court judgment ordering resentencing for a 16-year-old that received a de facto life sentence for a

1996 murder. The appellate court found the trial court did not address Lusby's age-related

characteristics; rather, it gave “a generalized statement about youth and their poor judgment.” Id.

¶ 27. Our supreme court restated the principles initially expressed in Holman that are to be

applied by a reviewing court where the claim is a Miller violation. An important, if not critical

consideration, is whether a sentencing hearing was held. “A hearing where ‘youth and its

attendant characteristics’ are considered as sentencing factors is necessary to separate those

juveniles who may be sentenced to life without parole from those who may not” (quoting Miller,

567 U.S. at 465). Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 735 (2016). The

trial court is not required to utter “magic words” at the sentencing hearing and the trial court is

not required to make a finding of fact regarding the juvenile’s incorrigibility. People v. Lusby,

2020 IL 124046, ¶ 33, fn. 2. Referring to Holman, the Lusby court reiterated “that the inquiry

looks back to the trial and the sentencing hearing to determine whether the trial court at that time

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considered evidence and argument related to the Miller factors. *** No single factor is

dispositive. Rather, we review the proceedings to ensure that the trial court made an informed

decision.” Id. at ¶ 35.

¶ 41 Consistent with the directives of Lusby, 2020 IL 124046 and Holman, 2017 IL 120665,

and applying the analysis we used in People v. Croft, 2018 IL App (1st) 150043, appeal denied,

98 N.E. 2d 28 (2018), cert denied 139 S. Ct. 291 (2018), we look to the sentencing record to

determine whether there was a constitutional violation in the imposition of defendant’s sentence.

¶ 42 Looking at the record, it is clear that defendant had an extensive and detailed sentencing

hearing where the trial court considered the nature of the offense, defendant's social and criminal

background and, importantly, his young age. Importantly, defendant had the opportunity to

present and argue any factor relevant to mitigation and urged “the Court to consider

section 735/5-4.5105 in the sentencing of individuals under the age of 18 at the time of the

commission of the offense, the person's age 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.”

¶ 43 Before imposing sentence, the court stated:

“For purposes of sentencing the Court has considered the evidence at trial, the gravity of

the offense, the pre-sentence investigation report, the financial impact of incarceration, all

evidence, information and testimony in aggravation and mitigation, any substance abuse

issues and treatment, the potential for rehabilitation including the age of the defendant at

the time of the offense, the possibility of sentencing alternatives, the Victim Impact

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Statements and all hearsay presented and deemed relevant and reliable. The Court has

also reviewed all statements presented in writing.”

¶ 44 After moving for reconsideration, defendant’s initial aggregate sentence of 65 years was

reduced to 50 years in the aggregate. The court’s refusal to impose a 25-year firearm

enhancement further evidences a thoughtful, appropriate sentence imposed after consideration of

all relevant juvenile sentencing factors. As the sentencing hearings in this case complied with

Miller, Holman and Lusby, remand for a third resentencing proceeding is not warranted.

¶ 45 CONCLUSION

¶ 46 Based on the foregoing, the judgment of the trial court is affirmed.

¶ 47 Affirmed.

¶ 48 JUSTICE HYMAN dissenting:

¶ 49 I respectfully dissent because, in my view, Brannon’s trial counsel performed ineffectively

by failing to request that the trial court instruct the jury using IPI 3.12X. The majority recites the

applicable legal principles, so I need not repeat them. I would conclude, however, that the facts of

this case rendered IPI 3.12X “critical to the defense.” See People v. Falco, 2014 IL App (1st)

111797, ¶ 16 (discussing standard). The fairness of Brannon’s trial hinged on the jury’s ability to

evaluate Brannon’s self-defense claim entirely, and counsel’s failure to request IPI 3.12X deprived

the jury of the complete complement of instructions necessary for its evaluation.

¶ 50 Jurors would likely agree that a person would reasonably believe use of deadly force was

justified when another person shoots or points a gun at them. Jurors also might decide that a person

would reasonably believe use of deadly force was justified when another person is brandishing a

weapon, though not aiming it directly at them. The question becomes much closer when a jury

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must determine whether a person reasonably believed use of deadly force was justified

preemptively before seeing a gun at all. Brannon’s jury had to answer this last question: Did

Branson know enough, based on his interactions with Deonte, to justify shooting before he visually

confirmed either victim had a gun? As given, the instructions did not equip the jury with sufficient

tools to analyze this narrow question.

¶ 51 Before going further, I want to address some analytical underbrush because the State’s

litigation decisions significantly weaken its argument against Strickland prejudice. The State does

not dispute that the trial court would have abused its discretion by failing to give IPI 3.12X had

Brannon’s counsel requested it, meaning the State concedes that the evidence legally entitled

Brannon to the instruction. Relatedly, the State does not dispute that trial counsel performed

deficiently by failing to request IPI 3.12X, meaning the State concedes no defensible strategy

exists for failing to request the instruction. While prejudice under Strickland must exist apart from

the underlying merits or counsel’s deficient performance, everyone agrees the instruction should

have been given. How then can we retain confidence in the outcome of Brannon’s trial when the

trial court failed to give the instruction? In my view, we cannot.

¶ 52 Showing prejudice for counsel’s deficiency under Strickland is a low bar. People v.

Lucious, 2016 IL App (1st) 141127, ¶ 45 (noting prejudice where chance that competent counsel

would have won acquittal is “significantly less than 50%”) (quoting People v. McCarter, 385 Ill.

App. 3d 919, 935 (2008)). For Brannon’s ineffectiveness claim to succeed, we need enough

evidence of prejudice to “undermine [our] confidence in the outcome.” Id.

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¶ 53 Again, the State’s only argument against a finding of prejudice comes from its reliance on

the other instructions the trial court gave the jury. The State focuses primarily on one instruction

about lawful justification, to which I will add emphasis at the critical points:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force. However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” See Illinois Pattern Instructions, Criminal, No. 24-25.06 (approved July 18, 2014).

¶ 54 As I observed at the outset, there are factual scenarios in which the reasonableness

of a defendant’s use of force is evident because of the necessity to defend against imminent

unlawful force, bodily harm, or death. Here, those facts are murky.

¶ 55 Kevon’s statement showed he and Deonte both had guns. But Kevon also said no

one else had been shooting when Brannon shot them, and no one else had pulled out their

guns yet. Brannon, in contrast, testified that he knew from conversations with Deonte that

Deonte intended to shoot him and shoot to kill. According to Brannon, Deonte had pulled

a gun on him and threatened him the day before the shooting. Deonte repeated his threat

the day of the shooting. Deonte reached for his waistband, which is when Brannon shot

him in the back. Kevon similarly reached for his waistband when Brannon shot him.

¶ 56 Resolving these competing narratives depends on the jury’s willingness to believe

the Lynch evidence about Deonte’s threats. If the jury believed Kevon, then perhaps

Brannon’s actions were unnecessary to prevent imminent force, bodily harm, or death; if

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the jury believed Brannon, however, perhaps his actions were necessary to avoid imminent

force, bodily harm, or death.

¶ 57 The record shows that the jury struggled to resolve this dispute. The majority’s

discussion omits the questions the jury asked during deliberations. Most relevant, the jury

asked for the “[d]efinition of lawful justification” and “a copy of the justified force, entire

article of the Illinois Criminal Code.” Both questions indicate active deliberations about

what it meant for Brannon’s actions to be justified based on the facts. Only IPI 3.12X told

the jury that it was within their province to determine whether Deonte had threatened

Brannon both the day before and the day of the shooting. And, if they believed he had, they

could “consider that evidence in deciding whether the State has proved beyond a reasonable

doubt that the defendant was not justified in using the force that he used.” Illinois Pattern

Instructions, Criminal, No. 3.12X (approved July 18, 2014).

¶ 58 On these facts, IPI 3.12X was “critical to the defense.” See Falco, 2014 IL App

(1st) 111797, ¶ 16. Importantly, Kevon’s statement supported parts of Brannon’s testimony

about acting in self-defense. Kevon admitted that he and Deonte were armed and that

Deonte and Brannon argued. Kevon’s statement contains no information about that

interaction between Brannon and Deonte the day before the shooting. There is also no

discrepancy between Brannon’s narrative of events and the physical evidence—Brannon

admitted he shot Deonte in the back.

¶ 59 Giving the jury the general instruction about lawful justification falls short.

Determining whether Brannon’s actions were necessary to prevent imminent harm

depended almost entirely on evaluating the credibility of his Lynch testimony. Counsel’s

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failure to request IPI 3.12X—an instruction justified by the evidence as a matter of law—

left the jury uninformed when trying to decide the critical issue before it. There is, at least,

a “significantly less than 50%” chance that requesting IPI 3.12X would have resulted in a

different outcome. See Lucious, 2016 IL App (1st) 141127, ¶ 45. I respectfully dissent from

the majority’s decision to affirm.

¶ 60 In my original dissent, I concurred with the majority’s faithful application of People

v. Holman, 2017 IL 120655 and People v. Lusby, 2020 IL 124046, while expressing my

skepticism about the soundness of those decisions. After reviewing Brannon’s petition for

rehearing, I dissent from the majority’s sentencing judgment as well. As I read the record,

the trial court did not intend to impose a life sentence. But it based its calculations to avoid

a life sentence on arguments the State made about the likelihood Brannon would survive

his sentence. This theory garnered just one vote in People v. Buffer, 2019 IL 122327. I

would remand for the trial court to determine whether, after Buffer, it believes the same

sentence is warranted.

¶ 61 After considering the petition for rehearing, I no longer understand this case to be

about the sufficiency of the trial court’s findings under Holman and Lusby. Instead, it is

about conforming Brannon’s sentence to the trial court’s intent. At the hearing on

Brannon’s motion to reconsider sentence, the State argued “that a term of 82 years is not

necessarily a de facto life sentence for somebody who was 17 when they committed the

offense” because “when they are released into their 60’s and 70’s” they have not served a

life term. Understanding that Brannon could potentially survive his sentence, the trial court

imposed its new sentence.

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¶ 62 In Buffer, however, our supreme court rejected survivability as the standard for

determining the life sentence of a juvenile offender. Id., ¶¶ 33-34. Only then-Justice Anne

Burke would have used a juvenile defendant’s age at the time of release as the benchmark

for determining what constitutes a de facto life sentence. Id., ¶ 67 (Burke, J. concurring).

In my view, the trial court’s understanding of the law, for which it had no fault because

Buffer remained undecided, would alone warrant remand for resentencing.

¶ 63 But compounding the need for a new sentence is the trial court’s effort to craft a

sentence that would be technically survivable for Brannon. Even operating under the now-

rejected survivability rubric for de facto life sentences, the trial court seemed determined

to impose a sentence that would not be a life sentence. The only way to ensure Brannon’s

sentence conforms to the trial court’s intent is to remand so the court can impose a sentence

with the understanding that sentences of 40 years or more are considered de facto life

sentences in the State of Illinois.

¶ 64 I emphasize that I express no opinion on whether the trial court’s current sentencing

findings would pass muster under Holman and Lusby. I conclude that, based on the record,

the trial court did not intend to impose a de facto life sentence and, yet, under Buffer, that

is precisely what it did. Brannon deserves, at minimum, further consideration of his

sentence given this change in the law.