People v. Cook

2020 IL App (1st) 161737-U

Opinion

2020 IL App (1st) 161737-U

FOURTH DIVISION February 27, 2020

No. 1-16-1737

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). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

) Appeal from the THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) ) No. 11 CR 8101 (02) CARRI COOK, ) ) ) Defendant-Appellant. ) Honorable ) Luciano Panici, ) Judge Presiding. ) ) ______________________________________________________________________________

JUSTICE REYES delivered the judgment of the court. Presiding Justice Gordon and Justice Lampkin concurred in the judgment.

ORDER

¶1 Held: Affirming the judgment of the circuit court where the defendant was not prejudiced by trial counsel’s failure to request the proper withdrawal jury instruction and where the defendant’s claim her sentence was unconstitutional as applied was premature.

¶2 Following a jury trial, defendant Carri Cook was convicted of two counts of first degree 1-16-1737

murder, attempted armed robbery, and home invasion under an accountability theory in the

shooting deaths of Frank Brassel and Echford Cooper. She was sentenced to the mandatory

sentence of natural life without parole for the murder convictions, 21 years for home invasion,

and four years for attempted armed robbery. On appeal, defendant asserts that: (1) her trial

counsel was ineffective for agreeing to an improper jury instruction that undermined her only

viable defense; and (2) her sentence is unconstitutional under the eighth amendment of the

United States Constitution and the proportionate penalties clause of the Illinois Constitution as

applied to her where she had limited culpability in the murders and no criminal history. For the

reasons that follow, we affirm.

¶3 BACKGROUND

¶4 On May 23, 2011, defendant was indicted with multiple offenses arising from a home

invasion and robbery during which her accomplice, Gene Lewis, shot and killed Brassel and

Cooper. The State proceeded to trial on eight counts of first degree murder (under the

accountability theory), two counts of home invasion, and one count of attempted armed robbery.

¶5 At trial, the State presented the following evidence. On April 20, 2011, at 11:24 a.m.

Sergeant LaVandus Kirkwood of the Harvey Police Department was dispatched to a house on the

15000 block of Myrtle Avenue in Harvey, Illinois. Upon arriving to the home, he discovered

Brassel lying on the front porch and Cooper lying on the bedroom floor next to his wheelchair.

Neither showed signs of life. The medical examiner testified that Brassel and Cooper died of

gunshot wounds due to a homicide. Brassel had two gunshot wounds to the head and chest and

Cooper had one gunshot wound to the head. Darrel Stafford, a crime scene investigator with the

Illinois State Police, testified that he recovered four 9 mm fired casings from the kitchen/dining

room, two .45 caliber fired casings from the front porch, and one .45 caliber fired casing from

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the bedroom. He also recovered $7272 from the front left pocket of Brassel’s pants.

¶6 Officer Jason Banks of the Harvey Police Department testified that on April 20, 2011, at

11:37 a.m. he was assigned to investigate a person seeking treatment for a gunshot wound at

Ingalls Memorial Hospital. Upon arrival, he encountered defendant and Ashonni Cotton. They

informed him that Lewis had been shot. Officer Banks was unable to speak with Lewis as he

was obtaining medical treatment at the time. However, when he attempted to interview

defendant she had already left the hospital.

¶7 The State published a surveillance video of the entrance to Ingalls Memorial Hospital.

Officer Banks testified that the video depicted Cotton assisting Lewis out of an automobile

driven by defendant.

¶8 Brandon Johnson, defendant’s brother, testified that on April 20, 2011, defendant told

him that Lewis was shot at a park and she took him to the hospital. Johnson then went to the

area where the shooting occurred. When he returned home, he asked defendant if Lewis had

been shot in the 15000 block of Myrtle Avenue where the homicides took place. Defendant

responded, “yes” and stated that Cotton had also been present. Defendant also told him that it

happened at a man named Frank’s house and she had arranged to meet up with him so they could

rob him.

¶9 Johnson testified that defendant told him she and Cotton ran from the house before the

victims were shot. During his grand jury testimony, however, Johnson testified that defendant

told him she was in the house when the shooting occurred. Johnson’s grand jury testimony

further indicated that defendant had a plan to run out of the house so Brassel would not think she

was involved in the robbery. Johnson’s grand jury testimony further revealed that defendant

knew that Lewis and Michael Reed would be coming to Brassel’s home with firearms as part of

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the plan.

¶ 10 On cross-examination, Johnson testified that on April 27, 2011, the police executed a

search of his home with the consent of another resident. The police found crack cocaine, a scale,

bags used to package cocaine, and ammunition. As a felon, it was illegal for Johnson to have

possession of the ammunition. Johnson was arrested and provided a statement to the police

about defendant’s involvement in the murders of Brassel and Cooper. On April 29, 2011,

Johnson testified about defendant’s involvement before a grand jury. While Johnson testified he

was not provided anything from the State in exchange for his grand jury testimony, he was never

charged with any crime related to his possession of the cocaine and the ammunition.

¶ 11 Assistant State’s Attorney Kellyn Coakley testified that on April 28, 2011, she was

assigned to the felony review unit of the State’s Attorney Office. She was notified by the Harvey

Police Department to interview defendant. She was aware that defendant had voluntarily come

to the police station on April 26, 2011. The interview had been videotaped and the video was

admitted in evidence and published to the jury without objection.

¶ 12 The videotape depicts an hour and 45-minute interview defendant had with ASA Coakley

and an unnamed detective at the Harvey police station on April 28, 2011. In the videotape

defendant acknowledged that she would be waiving her Miranda rights and informed ASA

Coakley and the detective as follows. Defendant first met Brassel on Friday, April 15, 2011, at a

gas station. Defendant, a painter, was wearing her work clothes when Brassel approached her

and introduced himself as a general contractor. He spoke with her about a potential job and

requested that defendant call him.

¶ 13 On Monday, April 18, 2011, defendant called Brassel and went over to his house.

Brassel spoke to her about potential painting work that needed to be done. He also asked

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defendant about her relationship status and indicated he was interested in “partying” with her.

Later that evening defendant’s automobile battery had died while parked in front of Cotton’s

house. Defendant told Brassel her battery had died and he offered to come by and help her jump

her vehicle. Brassel came to Cotton’s house and defendant introduced Brassel to Cotton. After

jumping defendant’s vehicle, Brassel pulled out a “wad” of money in front of defendant and

Cotton. Brassel gave defendant $20 for gas and then defendant and Cotton went to the gas

station without Brassel.

¶ 14 Later that evening, defendant and Cotton ran into Lewis and Reed on the street.

Defendant picked them up in her vehicle and they drove by Brassel’s house so she could thank

him for the money. While they were in the vehicle, defendant told Cotton about Brassel offering

her a job.

¶ 15 On Tuesday, April 19, 2011, she spoke with Brassel on the phone about Cotton. Brassel

indicated that he liked Cotton and wanted to get together with her. On Wednesday, April 20,

2011, Brassel called defendant and asked what she and Cotton were doing. Defendant then

called Cotton and Cotton indicated she was willing to meet up with Brassel. Defendant picked

up Cotton and they made their way to Brassel’s house. One block from Brassel’s house,

defendant observed Lewis and Reed standing outside next to Lewis’s vehicle wearing all black.

Defendant then pulled up to Brassel’s house. As she approached the front door, defendant said

hello to a man in a wheelchair who was sitting on the front porch.

¶ 16 Brassel indicated he wanted to speak with defendant alone so they went to the back of the

house while Cotton went to the bathroom. Brassel asked defendant if Cotton would be willing to

have sex with him for money. At that moment, Lewis rushed in holding a black, automatic

handgun and he demanded Brassel give him the money. She had never noticed Lewis with a

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handgun before, but she had observed Reed with one. Brassel told Lewis the money was in the

basement. Defendant ran out the front door and to her automobile. As she entered her vehicle,

she heard one gunshot. Then she observed Brassel come out to his driveway carrying a handgun

similar to Lewis’. Brassel yelled, “I got you b***” in her direction. Defendant then drove away

with Cotton to where Lewis’ vehicle was located to determine if Reed was there. As she was

driving on the block behind Brassel’s house she observed Lewis and Reed come out of a

gangway. Reed waved defendant down and put Lewis in the back of her vehicle.

¶ 17 Defendant drove to the hospital. While in the vehicle, Lewis told her that Brassel told

him the money was in the basement, but there was a dog in the basement that attacked him and

then Brassel shot Lewis. Defendant dropped Lewis off at the hospital. In the hospital parking

lot she met with Reed who instructed her to tell the hospital staff that Lewis had been shot in the

park.

¶ 18 The ASA and detective asked defendant to fill in some holes in her story and defendant

then provided the following information in response to their inquiries. On Monday, April 18,

2011, when defendant was driving with Cotton, Lewis, and Reed, Cotton said that defendant

“just found her a good ass trick.” Reed asked how much money Brassel had on him and Cotton

responded, “a wad.” Defendant explained to the ASA and detective that Brassel had numerous

$100 bills and some $20 bills. The group then devised a plan to steal Brassel’s money and split

it between them. Reed asked where Brassel lived and they drove by Brassel’s house. Lewis and

Reed intended to rob Brassel that evening, but it was becoming late so they did not. Reed

instructed defendant to set up a date with Brassel the next day.

¶ 19 On Tuesday, April 19, 2011, the plan was for defendant to call Brassel and tell him her

vehicle needed a jump. Defendant would be on an isolated road near a warehouse and then

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Lewis and Reed would rob Brassel. Defendant texted Brassel, but at the wrong number hoping

he would not respond. Brassel later called her and told her that he was partying at a motel. She

drove with Cotton to the motel while Lewis and Reed drove separately in a van. Defendant

observed Brassel’s automobile in the motel parking lot. Lewis and Reed parked next to Brassel’s

vehicle and waited for him. Defendant then drove away and dropped Cotton off at her home.

Defendant drove herself home.

¶ 20 On Wednesday, April 20, 2011, Brassel called defendant early in the morning. At that

time, defendant was unaware if Lewis and Reed had robbed him the night before. Brassel

indicated that he wanted to get together with her and Cotton to party. Defendant called Cotton

and went to Cotton’s house. At some point while defendant was at Cotton’s home, Cotton called

Reed. After that phone call, Cotton informed defendant that they would be robbing Brassel that

day. Cotton further informed defendant that the plan was for them to enter Brassel’s house and

when Lewis and Reed came in for them to run away. Defendant stated to the ASA and detective

that “we had taken advantage of Wednesday when he called” and acknowledged that they were

“only supposed to have robbed him.”

¶ 21 At the close of the State’s evidence, defendant moved for a directed verdict, which was

denied. The defense rested. In closing, the State argued that defendant assisted in planning and

executing the home invasion and robbery of Brassel and that she should be convicted of Brassel

and Cooper’s murders under an accountability theory. In response, defense counsel maintained

that defendant withdrew from the robbery where the evidence demonstrated she was not in

agreement to rob Brassel and did not assist in the robbery. Defense counsel also noted that lack

of eyewitness evidence, telephone records, and other witness testimony linking defendant to the

offenses as charged. Defense counsel further argued that Johnson’s testimony was not credible

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where he fabricated information about defendant to avoid being charged with additional felonies.

Thereafter, the jury was instructed and deliberated, ultimately finding defendant guilty of two

counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 2010)), attempted armed robbery (720

ILCS 5/8-4(a), 18-2(a) (West 2010)), and home invasion (720 ILCS 5/12-11(a)(3) (West 2010)).

Defendant filed a motion for a new trial, which was denied.

¶ 22 The trial court ordered a presentence investigation report and the matter proceeded to a

sentencing hearing where the State argued, in part, that defendant should be sentenced to

mandatory natural life under section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections (730

ILCS 5/5-8-1(a)(1)(c)(ii) (West 2016)) due to the fact she was responsible for causing the deaths

of two individuals. In mitigation, defense counsel argued that defendant had no prior criminal

history or gang involvement. He further argued that defendant was less culpable where she did

not shoot and kill the victims. Defense counsel requested the minimum mandatory sentence for

the double murder and that the sentences for the remaining counts be merged into those counts.

Defendant then spoke in allocution. Defendant apologized for her actions and expressed her

deep sorrow and remorse for her part in the deaths of the victims. Defendant pleaded with the

court to sentence her in a way that she would be able to be reintegrated into society.

¶ 23 The trial court then read defendant’s presentence investigation report into the record and

sentenced defendant to mandatory natural life without parole for the two counts of first degree

murder. The court further sentenced defendant to the minimum 21 years’ imprisonment for

home invasion, and the minimum four years for attempt armed robbery. Defendant did not

request the court reconsider her sentence. This appeal followed.

¶ 24 ANALYSIS

¶ 25 On appeal, defendant asserts that: (1) her trial counsel was ineffective for agreeing to an

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improper jury instruction that undermined her only viable defense; and (2) her sentence is

unconstitutional under the eighth amendment of the United States Constitution and the

proportionate penalties clause of the Illinois Constitution as applied to her where she had limited

culpability in the murders and no criminal history. We address each issue in turn.

¶ 26 Ineffective Assistance of Counsel

¶ 27 Defendant first contends her counsel was ineffective for agreeing that the jury be

instructed with Illinois Pattern Jury Instructions, Criminal, No. 5.04 (4th ed. 2000)

(Responsibility For Act Of Another-Withdrawal) (hereinafter IPI Criminal 4th). Defendant

asserts this jury instruction undermined her only viable defense, that she had withdrawn from the

conspiracy to rob Brassel. Specifically, defendant maintains that the “timely warning” phrase of

IPI 5.04 was improper where there was no evidence that she contacted the police. Accordingly,

defendant argues that her defense counsel provided ineffective assistance in failing to present a

proper version of IPI 5.04, as the addition of the “timely warning” phrase precluded the jury

from finding that she withdrew from the conspiracy, which in turn, precluded any chance of

acquittal under the defense’s theory of the case.

¶ 28 In response, the State asserts that, even assuming defense counsel erred in not objecting

to the particular version of the withdrawal instruction tendered, defendant was not prejudiced as

the evidence presented at trial did not support any withdrawal instruction.

¶ 29 We begin with the familiar principles for resolving claims of ineffective assistance as

provided by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, a defendant must demonstrate that his counsel’s performance was deficient

and that he was prejudiced as a result. Id. at 687. To demonstrate deficient representation, a

defendant must establish his counsel’s performance fell below an objective standard of

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reasonableness. Id. at 688. Judicial scrutiny of a counsel’s performance is highly deferential,

such that a court must indulge in a strong presumption that the counsel’s conduct fell within the

wide range of professional assistance. Id. at 689. To demonstrate prejudice, the defendant must

establish there is a reasonable probability that, but for counsel’s deficient representation, the

result of the proceeding would have been different. Id. at 694. The Supreme Court advised that

“[a] reasonable probability is a probability sufficient to undermine the confidence in the

outcome” of the proceeding. Id. Moreover, because the defendant must satisfy both parts of the

Strickland test, if an ineffective assistance claim can be disposed of on the ground of lack of

sufficient prejudice, a court need not consider the quality of the attorney's performance. Id. at

697.

¶ 30 Our supreme court has further advised that the right to effective assistance of counsel

refers to competent, not perfect, representation. People v. Palmer, 162 Ill. 2d 465, 476 (1994).

In other words, Strickland only requires a fair trial for the defendant; one that is free of errors so

egregious that they, in all probability, caused the conviction. People v. Sharp, 2015 IL App (1st)

130438, ¶ 101.

¶ 31 Defendant here was charged with the offenses under a theory of accountability. A

defendant is “legally accountable for the conduct of another when he solicits, aids, abets, agrees

or attempts to aid another in the commission of a crime.” People v. Ross, 329 Ill. App. 3d 872,

885 (2002). Section 5-2(c) of the Criminal Code of 1961 (Code) (720 ILCS 5/5-2(c) (West

2010)), however, provides that an individual may withdraw from an offense as follows:

“A person is not so accountable, however, unless the statute defining the offense

provides otherwise, if:

(1) he or she is a victim of the offense committed;

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(2) the offense is so defined that his or her conduct was inevitably incident to its

commission; or

(3) before the commission of the offense, he or she terminates his or her effort to

promote or facilitate that commission and does one of the following: (i) wholly deprives

his or her prior efforts of effectiveness in that commission, (ii) gives timely warning to

the proper law enforcement authorities, or (iii) otherwise makes proper effort to prevent

the commission of the offense.” 720 ILCS 5/5-2(c) (West 2010).

A defendant’s participation in a common criminal enterprise is presumed to continue until he

detaches himself from it. People v. Jones, 376 Ill. App. 3d 372, 386 (2007). To properly

effectuate withdrawal so as to warrant such an instruction at trial, the defendant “cannot merely

withdraw, but must communicate his intention to withdraw” in a timely manner as described

(id.), thereby “taking some step to ‘neutralize’ the effect of his conduct” (People v. Trotter, 299

Ill. App. 3d 535, 540 (1998)). Accordingly, without such evidence presented at trial, a

withdrawal instruction is improper. See People v. Tiller, 94 Ill. 2d 303, 315 (1982) (withdrawal

instruction not warranted where the defendant, who participated in robbery, did not wholly

deprive his efforts of effectiveness by merely leaving the store and telling an accomplice not to

hurt victim because he did not show any affirmative act which would have deprived his efforts of

their effectiveness).

¶ 32 Illinois Pattern Jury Instruction 5.04 entitled “Responsibility For Act Of Another-

Withdrawal” tracks the language of section 5-2(c) of the Code and provides as follows:

“A person is not legally responsible for the conduct of another, if, before the

commission of the offense charged, he terminates his effort to promote or facilitate the

commission of the offense charged and [(wholly deprives his prior efforts of

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effectiveness in the commission of that offense) (gives timely warning to the proper law

enforcement authorities) (makes proper effort to prevent the commission of that

offense)].” IPI Criminal 4th, No. 5.04.

The committee note indicates that the court should use the “applicable bracketed material.” The

instruction provided to the jury here only included the “gives timely warning” language from the

bracketed material.

¶ 33 Defendant does not maintain that the jury instruction improperly stated the law, but

instead argues that this instruction, offered by the State, does not accurately reflect the evidence.

Defendant asserts that this instruction undermined her theory of the case, causing her prejudice

where the evidence demonstrated that she wholly deprived her prior efforts of effectiveness and

she made a proper effort to prevent the commission of the offense. Specifically, defendant

argues the evidence established that she did not intend to rob Brassel on April 20, 2011, and she

purposely did not inform Lewis and Reed that she was contacted by Brassel because she feared

they would rob him. We do not find this argument persuasive.

¶ 34 The evidence presented at trial fails to demonstrate defendant was entitled to any

withdrawal defense. After speaking with Brassel on the telephone on April 20, 2011, defendant

immediately informed Cotton and the two planned to go to Brassel’s home. Although defendant

stated her intention was to merely “party” with Brassel, defendant was aware that Cotton

contacted Reed and had informed Reed they were going to Brassel’s house. Cotton then told

defendant the plan was for them to enter Brassel’s house, and when Lewis and Reed entered, for

them to run out. This is exactly what occurred. See Ross, 329 Ill. App. 3d at 886 (“The best

evidence that [the defendant] did not wholly deprive the enterprise of his efforts is that the crime

he planned took place.”). After Cotton so informed defendant, defendant drove Cotton to

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Brassel’s home. On the way there, she passed Lewis and Reed. They were parked one block

from Brassel’s home dressed in all black. Defendant parked her vehicle, not in the driveway, but

across the street. She entered Brassel’s home, spoke with him, and when Lewis appeared

holding a handgun, she and Cotton ran out of the house. Thereafter, she drove to the block

behind Brassel’s house, picked up an injured Lewis, and drove him to the emergency room. See

People v. Quiroz, 229 Ill. App. 3d 241, 246 (1992) (evidence of post crime behavior of defendant

is competent to demonstrate participation in the offense itself). At no point did defendant do

anything that would indicate she withdrew from the robbery. See Tiller, 94 Ill. 2d at 314-15 (the

defendant failed to demonstrate an affirmative act which deprived his prior efforts in support of

the robbery of their effectiveness); Ross, 329 Ill. App. 3d at 886 (trial court’s refusal to provide

the withdrawal jury instruction was not error were there was no evidence to support a withdrawal

theory). Accordingly, defendant cannot demonstrate she was prejudiced by the jury instruction

to which her attorney failed to object.

¶ 35 Defendant argues, however, that she is entitled to a proper withdrawal instruction where

there is even “slight evidence” that justifies giving the instruction. The “slight evidence” upon

which defendant relies is her testimony that she intended to go over to Brassel’s home to “party”

and she did not personally inform Lewis and Reed that she would be going there. Defendant

maintains that because the jury could have believed her version of events that there is slight

evidence to warrant a proper withdrawal instruction. Although a defendant is entitled to have the

jury instructed on her theory of the case where there is even slight evidence to support it (People

v. Barnard, 208 Ill. App. 3d 342, 349-50 (1991)), as discussed, the evidence here does not

support a withdrawal instruction. While defendant may have had these subjective intentions,

there was absolutely no evidence that she communicated this intent to anyone. See Ross, 329 Ill.

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App. 3d at 886 (“It is the communication of intent, not the naked fact of withdrawal, that

determines whether a defendant is released from accountability liability.”); Jones, 376 Ill. App.

3d at 386. Indeed, her actions belied this intent. Moreover, defendant cites no case where a

failure to communicate with her co-conspirators alone is enough to warrant a withdrawal

instruction.

¶ 36 Defendant further argues that the jury instruction prejudiced her because it introduced

“conflicting law” by adding an element to the withdrawal instruction that was unnecessary and

unsupported by the evidence. To support her argument, defendant cites a phrase from People v.

Bush, 157 Ill. 2d 248, 254 (1993), wherein our supreme court stated, “the giving of conflicting

instructions, one of which is a correct statement of law and the other an incorrect statement of

law, is not harmless error.” In Bush, however, the trial court erroneously instructed the jury with

a non-IPI instruction concerning the limited-authority doctrine that misstated the law. Id. Here,

in contrast, the jury was not presented with an instruction that misstated the law, but instead was

provided with an instruction unsupported by the evidence. As previously discussed, no evidence

of withdrawal was presented to the jury, therefore, there could be no prejudice to defendant.

¶ 37 In sum, based on the evidence presented we cannot say there was a reasonable probability

the outcome of defendant’s trial would have been different had the jury been provided with an

alternative withdrawal instruction. Accordingly, we conclude that defendant failed to

sufficiently demonstrate she suffered prejudice and her ineffective assistance of counsel claim

fails.

¶ 38 Sentence

¶ 39 Defendant next contends that her mandatory sentence of natural life imprisonment

violates both the eighth amendment of the United States Constitution (U.S. Const., amend. VIII)

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and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) as

applied to her. Defendant asserts that applying the same sentencing scheme against her as would

be applied against a defendant who committed intentional murder violates the eighth

amendment’s prohibition against cruel and unusual punishment. Defendant further maintains

that her sentence is unconstitutional under the proportionate penalties clause because a natural

life sentence is disproportionate to her limited culpability and forecloses the possibility of life

outside of prison.

¶ 40 In response, the State argues that because defendant was an adult when she committed

the offense, the imposition of a mandatory life sentence is presumed constitutional for those

found guilty under accountability principles. The State also asserts that defendant was not just

passively accountable for the two murders, but instead took an active role by participating in

three plans to rob Brassel. According to the State, but for defendant’s participation in these

events, the victims’ deaths would not have occurred.

¶ 41 We initially observe that defendant argues that her sentence violates the eighth

amendment and proportionate penalty clause as applied to her. The distinction between facial

and as-applied constitutional challenges is crucial. People ex rel. Hartrich v. 2010 Harley-

Davidson, 2018 IL 121636, ¶ 11. A party raising a facial challenge must establish that the statute

is unconstitutional under any possible set of facts, while an as-applied challenge requires a

showing that the statute is unconstitutional as it applies to the specific facts and circumstances of

the challenging party. Id. ¶ 12; People v. Rizzo, 2016 IL 118599, ¶ 24; People v. Thompson,

2015 IL 118151, ¶ 36. All as-applied constitutional challenges are, by definition, dependent on

the specific facts and circumstances of the person raising the challenge. “ ‘Therefore, it is

paramount that the record be sufficiently developed in terms of those facts and circumstances for

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purposes of appellate review.’ ” Hartrich, 2018 IL 121636, ¶ 31 (quoting Thompson, 2015 IL

118151, ¶ 37). As observed by our supreme court:

“ ‘ “A court is not capable of making an ‘as applied’ determination of unconstitutionality

when there has been no evidentiary hearing and no findings of fact. [Citation.] Without

an evidentiary record, any finding that a statute is unconstitutional ‘as applied’ is

premature.” ’ ” Rizzo, 2016 IL 118599, ¶ 26 (quoting People v. Mosley, 2015 IL 115872,

¶ 47, quoting In re Parentage of John M., 212 Ill. 2d 253, 268 (2004)).

¶ 42 We find our supreme court’s recent decision in People v. Harris, 2018 IL 121932, to be

instructive. In that case, the 18-year-old defendant was convicted of first degree murder,

attempted first degree murder, and aggravated battery with a firearm. Id. ¶ 1. He was sentenced

to a mandatory minimum aggregate term of 76 years’ imprisonment. Id. The defendant

appealed his sentence, maintaining that, as applied to him, it violated the proportionate penalties

clause of the Illinois Constitution. Id. The appellate court agreed and the State appealed. Id.

¶ 43 In concluding his as-applied challenge was premature, our supreme court observed that

the defendant did not raise his as-applied constitutional challenge in the trial court. Id. ¶ 40.

Due to this failure, no evidentiary hearing was conducted regarding his constitutional claim and

the trial court did not make any findings of fact on the defendant’s specific circumstances. Id.

Accordingly, the record had not been sufficiently developed to address his constitutional claim.

Id. ¶ 45.

¶ 44 Similarly, defendant here failed to raise her as-applied constitutional challenge in the trial

court. Indeed, defendant did not even request the trial court reconsider her sentence. No

evidentiary hearing was held on her constitutional claims and the trial court did not make any

findings of fact on defendant’s specific circumstances. Specifically, the trial court heard no

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evidence supporting defendant’s position on appeal that a 24-year-old young adult is “more

similar to an adolescent than a fully mature adult and is more susceptible to peer pressure.” All

the trial court had before it was the presentence investigation report and defendant’s statement in

allocution. Because the record herein has not been developed sufficiently to address her

constitutional claims, we find them to be premature. See id. ¶ 41. As emphasized by our

supreme court, “a reviewing court is not capable of making an as-applied finding of

unconstitutionality in the ‘factual vacuum’ created by the absence of an evidentiary hearing and

findings of fact by the trial court.” Id. (citing People v. Minnis, 2016 IL 119563, ¶ 19; Rizzo,

2016 IL 118599, ¶ 26).

¶ 45 In reaching this conclusion, we find defendant’s reliance on People v. Leon Miller, 202

Ill. 2d 328 (2002), and People v. House, 2019 IL App (1st) 110580-B, to be misplaced. While

our supreme court upheld the trial court’s finding that the multiple murder sentencing statute was

unconstitutional as applied in Miller, the defendant there was a 15-year-old juvenile who decided

(in a moment’s notice) to act as a lookout at the request of two, older gang members. Miller, 202

Ill. 2d at 330-31. Here, in contrast, defendant was a 24-year-old who, over the course of three

days, planned and strategized with Cotton, Lewis, and Reed to rob Brassel. Most importantly,

when determining that the multiple murder sentencing statute was unconstitutional as applied to

the Miller defendant, the trial court had facts before it that allowed it to make such a decision.

Id. at 332, 340-41. In the case before us, defendant presented no constitutional as applied

challenge before the trial court and, therefore, no facts were adduced regarding a 24-year-old’s

capability for reasoning and ability to withstand peer pressure.

¶ 46 We further find House to be inapplicable. In that case, the 19-year-old defendant was

convicted of murder under an accountability theory where he acted as a lookout while two

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individuals were murdered. House, 2019 IL App (1st) 110580-B, ¶¶ 4, 14. He had no prior

violent criminal history and was encouraged to participate in the offense by other gang members.

Id. ¶ 33. In concluding the imposition of a mandatory life sentence was unconstitutional as

applied to the defendant, the reviewing court’s analysis focused on youthful offenders ages 18-

21. Id. ¶¶ 55-58, 62. The reviewing court did not discuss or stretch its analysis to include

offenders six years removed from the age of 18 as was defendant here. See id. ¶¶ 47-56.

¶ 47 In sum, we conclude that defendant’s as-applied constitutional claims are premature and

decline to consider them. We observe, however, that our inability to review defendant’s claims

does not preclude future review of those claims. Indeed, our supreme court has advised that a

criminal defendant may sufficiently develop as-applied challenges before a trial court through

the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018), or through a petition

seeking relief from a final judgment under section 2-1401 of the Code of Civil Procedure (735

ILCS 5/2-1401 (West 2018)). See Thompson, 2015 IL 118151, ¶ 44.

¶ 48 CONCLUSION

¶ 49 For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 50 Affirmed.

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