People v. Edwards

2017 IL App (3d) 130190-B, 75 N.E.3d 282

• Court: Appellate Court of Illinois
• Decided: January 31, 2017
• Docket: 3-13-0190
• Status: Unpublished

Opinion

2017 IL App (3d) 130190-B

Opinion filed January 31, 2017 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-13-0190 v. ) Circuit No. 09-CF-1559 ) MATTHEW T. EDWARDS, ) ) Honorable Amy Bertani-Tomczak, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Presiding Justice Holdridge concurred in the judgment and opinion. Justice Wright concurred in part and dissented in part, with opinion.

OPINION

¶1 Following a stipulated bench trial, the Will County circuit court found defendant,

Matthew Edwards, guilty of first degree murder and attempted murder.

¶2 Prior to trial, defendant filed a motion to suppress, claiming his confession to police was

involuntary based on the fact that he was 17 years old at the time, had a fifth grade reading level,

suffered from various mental disorders, and that the investigating officers did not allow him to

speak to his mother or another concerned adult despite his request to do so. The trial court denied

the motion. ¶3 The matter proceeded to a stipulated bench trial, following which the trial court found

defendant guilty of both first degree murder and attempted murder. The State dismissed the

aggravated battery with a firearm, home invasion, and armed robbery counts.

¶4 In the sentencing phase, the State sought enhanced sentences on both charges given that

defendant personally discharged a firearm causing both death and great bodily harm. The trial

court found that the State proved the enhancement factors and subsequently sentenced defendant

to 50 years on the murder conviction and 40 years on the attempted murder conviction.

¶5 On March 13, 2013, defendant filed a motion to reduce his sentence, arguing that it was

excessive. The court denied the motion.

¶6 Defendant appealed, claiming, inter alia, that (1) the trial court erred in denying his

motion to suppress where defendant was 17 years old at the time of the arrest, had a limited

education, and did not have contact with a parent or concerned adult, (2) the trial court erred

when it failed to hold the statutorily required fitness hearing after it found a bona fide doubt of

his fitness to stand trial, (3) the defendant’s 90-year sentence is unconstitutional under Miller v.

Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), prohibiting offenders under the age of 18 from

receiving mandatory life sentences, and (4) defendant is entitled to an additional day of

presentence incarceration credit.

¶7 This court affirmed defendant’s conviction, directing the trial court to grant defendant

one extra day of presentence incarceration credit. People v. Edwards, 2015 IL App (3d) 130190.

In a supervisory order dated November 23, 2016, our supreme court directed us to vacate and

reconsider our judgment in light of People v. Reyes, 2016 IL 119271, to determine if a different

result is warranted. And so we do. Having done so, we conclude that Reyes does not warrant a

different result. We affirm as modified.

2 ¶8 BACKGROUND

¶9 The State charged defendant, along with codefendants Ashley Hill, Mary Vetor, and

Jason Orasco by indictment with three counts of first degree murder, one count of attempted

murder, one count of aggravated battery with a firearm, two counts of home invasion, and one

count of armed robbery. The State named Joshua Terdic as the victim in the murder, armed

robbery, and first home invasion charges. The State named Lauren Vasilakis as the victim of the

attempted murder, aggravated battery with a firearm, and second home invasion charges. The

court appointed the public defender to represent defendant.

¶ 10 On September 1, 2009, defendant filed a motion for the appointment of an expert to

determine his fitness to stand trial and whether he was legally sane at the time of the alleged

offenses. Defendant tendered a proposed order to the court indicating that the State had no

objection.

¶ 11 The court ordered Dr. Randi Zoot to examine defendant, determine if he was fit to stand

trial, and if he was legally sane at the time of the offenses. The order stated, “[t]his matter

coming on for hearing on defendant’s motion for expert witness and for fitness hearing, and for

other relief, said motion being uncontested by the People of the State of Illinois, and the court

finding that a bona fide doubt exist [sic] as to defendant’s fitness to stand trial *** it is hereby

ordered” that Dr. Zoot examine defendant.

¶ 12 Ultimately, Dr. Zoot filed a report finding defendant fit to stand trial and sane at the time

of the alleged offenses.

¶ 13 On November 29, 2010, defendant filed a motion to suppress his statements/confession to

the police. The following testimony was elicited at the hearing on the motion.

3 ¶ 14 Detectives Jamie Marquez and Chris Georgeff, both of the Will County and Grundy

County major crimes task force, testified that on July 7, 2009, they were dispatched to 512

Cayuga Street in Joliet to assist the Channahon police. Approximately 12 armed officers were

there to execute an arrest warrant for Jason Orasco. Sergeant Talmontes directed Marquez and

Georgeff to take defendant to the Channahon police department.

¶ 15 Marquez testified that prior to being taken to the police station, defendant voluntarily

submitted to a gunshot residue (GSR) test. Georgeff could not recall if defendant submitted to a

GSR test. Defendant voluntarily accompanied the officers to the station. The officers, both of

whom were armed at the time, did not handcuff defendant. Defendant rode in the front seat of the

squad car on the way to the station.

¶ 16 Defendant’s interview began at 5:45 p.m. Marquez read defendant the Miranda warnings

line-by-line. Defendant indicated he understood his rights, initialed each line, and signed the

form. Both officers were aware that defendant had just turned 17 years old.

¶ 17 At first, the detectives were only trying to gather facts on defendant’s whereabouts on

July 7, 2009. They knew that Joshua Terdic had been shot in the head and was in critical

condition at the time of the interview. Defendant initially told officers he was not in Channahon

on July 7.

¶ 18 The officers left the room to speak with the detectives who were interviewing Hill, Vetor

and Orasco. Afterward, Marquez and Georgeff confronted defendant with the codefendants’

statements indicating that defendant was, in fact, in Channahon on the day of the incident.

¶ 19 Defendant’s initial statements were not recorded as officers were unsure at that time

whether he was a suspect. Georgeff stated that he and Marquez did not record the entire

interview because they did not believe they were required to do so. Once defendant agreed to

4 give a recorded statement, the last 30 minutes of the interview (which included defendant’s

confession) were recorded.

¶ 20 According to Marquez, defendant did not request to speak to his mother. Georgeff could

not recall if defendant asked to speak with his mother or if the police offered to allow defendant

to call his mother. Marquez and Georgeff were trained as juvenile officers. Georgeff testified that

he was “absolutely” acting in defendant’s best interests. On recross-examination, defense

counsel inquired if Georgeff was only doing what was minimally required to be in defendant’s

best interests, to which Georgeff responded, “Sure.”

¶ 21 Throughout the course of defendant’s detainment and interrogation, he was not beaten or

slapped, he was allowed to use the restroom, and he was allowed food and water if he so desired.

Officers did not inquire as to whether or not defendant had trouble reading or suffered from any

mental illness. Defendant did not volunteer this information, nor did he appear to be under the

influence of drugs or alcohol. Marquez testified they never informed defendant that his GSR test

came back positive, though Georgeff could not recall.

¶ 22 The interrogation took place in a conference room, not an interview room. The door was

not locked. Despite that, defendant would probably not have been able to leave the building. The

interrogation concluded at 8:16 p.m.

¶ 23 Once officers indicated to defendant that his friends placed him at the scene of the crime,

he subsequently gave a statement, which he agreed to have recorded. The tape began at 7:50 p.m.

and ended at 8:16 p.m.

¶ 24 The State offered the digital versatile disc (DVD) of defendant’s confession into

evidence, and the trial judge watched it in her chambers. In the DVD, defendant acknowledged

5 receiving his Miranda rights and answered affirmatively that he knew all his rights. Defendant

gave the following narrative of the events of the previous night/early morning of July 7.

¶ 25 He was drinking with friends at Mary Vetor’s house, went to sleep, and was awakened by

Jason. Jason knew a place where they could get money and drugs. Defendant said, “Okay, let’s

go.” Ashley and Mary drove the two men; Mary got a ticket while parked outside. Jason grabbed

a shovel, which defendant used to break into the apartment. Defendant then unlocked the

bedroom door with a knife he had taken from the kitchen.

¶ 26 The sleeping couple woke up while defendant and Jason searched for money and drugs.

Jason said to tie them up, so defendant and Jason did so. Jason hit the male victim in the knee

with a baseball bat, breaking the bat. Jason had brought the bat and the gun. The victims were

screaming, and Jason told defendant to shoot, to “Just do it.” Jason ordered the male victim to

put his head under the pillow. Defendant just wanted to scare the male victim and, as Jason was

yelling at defendant to shoot and kill him, defendant shot at the pillow. He then lifted the pillow

off the male victim, saw blood on the pillow, put it over the female victim’s head, and fired two

shots. Defendant then left through the window.

¶ 27 Jason wore a mask, hoodie, and rubber gloves; defendant wore baseball gloves.

Defendant gave Jason the gun, which they threw away as they walked to a cabin. Jason and

defendant texted Ashley and Mary to come pick them up. The four then returned home to Mary’s

house.

¶ 28 In response to questions during the interrogation, defendant stated he was sorry Joshua

Terdic got hurt, and he knew he would “have to do something for it” but hoped it would be a low

charge. Defendant offered to help find evidence. At the conclusion of the video he stated, “I told

mom I’d see her for her birthday and I don’t like lying,” but acknowledged he had lied initially

6 to cover his tracks. He did not want to get anyone else in trouble. Finally, he acknowledged that

he went to the police station voluntarily, had not been handcuffed, that no promises had been

made, that he had been given his Miranda rights, and had been offered drinks and the use of the

bathroom. When officers asked if defendant was hungry, he responded that he was a little bit

hungry, and the officers stated they would get him some food. The DVD concluded at 8:16 p.m.

¶ 29 The hearing resumed the next day. Defendant testified that on July 7, 2009, he was 17

years old and was living at Mary Vetor’s house. He, along with Jason Orasco, Ashley Hill, Mary

and Mary’s mother were at the house when police came with an arrest warrant for Jason. The

police requested that all household members come outside; defendant complied. Officers

directed defendant to stand by one of the squad cars and told him they were going to do a quick

GSR test. Afterward, officers asked defendant if he would accompany them down to the station

to answer some questions about the shooting. Defendant agreed and went voluntarily. He sat in

the front seat of an unmarked squad car and was not handcuffed. Defendant felt he could not

decline the officers’ invitation.

¶ 30 Upon arriving at the station, officers placed defendant in a conference room. Defendant

had been living at Mary’s house for a couple months; he did not live with his mother. Defendant

testified that as soon as he got to the station he asked to speak with his mother, telling officers it

was her birthday “to get their attention.” He did not know how else to convince them to allow

him to speak to her. The officers did not allow defendant to call his mother, saying “after the

interview.” Defendant was not physically touched.

¶ 31 Defendant originally denied being in Channahon. The officers left the room and returned

two or three minutes later. Midway through the second interview, officers informed defendant

the GSR test came back positive and that his friends implicated him in the incident. Defendant’s

7 photos were taken for a lineup. Shortly thereafter, defendant gave a statement and agreed to go

on video to record the confession.

¶ 32 When asked about specifics of the interrogation on direct, defendant testified that

Marquez told him that he did not like it when Georgeff gets angry because he has difficulty

calming him down. Georgeff leaned over defendant and spoke in a loud voice. Sometimes the

interview was confrontational, sometimes it was not. Prior to the shooting, defendant had never

been confronted by the police, been in a police station, or incarcerated. He had two previous run-

ins with the police, but his mother was present and he was never arrested. The police told him

that he was going to serve some time in prison, but the officers did not say how much. Defendant

was afraid of the detectives.

¶ 33 Defendant attended the second half of his freshman year of high school, receiving mostly

Ds and Fs. His sophomore year he got Ds and Fs the first semester but did better his second

semester because his grandfather made a concerted effort to help him. Defendant took special

education classes. He dropped out toward the end of his sophomore year because he felt he did

not need school. He read at a fifth or sixth grade level. He suffered from attention deficit disorder

(ADD) and attention deficit hyperactivity disorder (ADHD), hindering his ability to learn.

¶ 34 Defendant had also been hospitalized previously and was subsequently diagnosed with a

mood disorder, bipolar disorder, and depression. Defendant had been prescribed medication—

Depakote—for the disorders. When he was on the medication, he felt that he could understand

better and felt more in control. On July 7, he was not taking Depakote. Defendant stopped taking

the medication in March or April 2008 because he could no longer afford it. He testified that

being unmedicated affected his ability to understand the interview.

8 ¶ 35 Defendant knew the meaning of the words “you have the right to remain silent.” He did

not know what the word “attorney” meant. Defendant had heard of the word “lawyer” but was

not familiar with the word “attorney.”

¶ 36 After dropping out of high school, defendant enrolled in the Lincoln’s Challenge

Academy in order to help control his disorders. The first two weeks of the program consisted of

vigorous physical exercise programs. He did not, however, pass his reading, writing or

mathematics courses because he had a hard time paying attention and could not understand.

Defendant ultimately graduated from the program; one could graduate by not causing trouble.

¶ 37 Janice Edwards, defendant’s mother, testified that she was living with her parents on July

7, 2009, and that defendant was not living with her. The police did not contact her when they

took defendant into custody. She learned of the incident on July 8, when her brother told her to

look at the newspaper, and she saw an article stating that defendant had been arrested in

connection with a shooting.

¶ 38 Edwards stated that defendant could not read or write very well, and he could not spell.

He understood children’s books. Defendant would not understand the word “attorney,” but he

would probably understand the word “lawyer.” Defendant suffered from mental health problems

throughout his life. He had been in trouble with the police a couple of years before the shooting.

Though prescribed medication for his disorders, she could not afford them and public aid would

not cover the medications because she made too much money.

¶ 39 Defendant got into the Lincoln’s Challenge Academy with the help of his high school

counselor. Defendant did well in the program, as it provided the structure he needed. He did not

do well in the academic portion of the program, and he failed the GED test miserably. Defendant

did not attend his high school classes because he did not know what was going on.

9 ¶ 40 After the Lincoln program, defendant lived with his older brother. He was not welcome at

his grandparents’ home because he had been stealing. According to his mother, at 16 years old,

defendant made his own arrangements.

¶ 41 At the conclusion of argument, the court denied defendant’s motion to suppress. The

court specifically found that at 17 years old, defendant was not at a tender age. In viewing the

DVD, the court found defendant articulate, he used appropriate words, and his responses showed

an ability to understand the questions posed to him. While defendant lied about it being his

mother’s birthday, apparently in order to see her, the court did not find that dispositive.

Defendant had stopped taking medications for his various disorders over a year before the

interrogation. His records from Joliet High School showed that defendant had an above average

learning potential. The records further indicated that defendant was not developmentally delayed,

nor did he suffer from any type of learning, speech, or hearing impairment. Under the totality of

the circumstances and based upon the credibility of the witnesses, the court found that

defendant’s statement was voluntary.

¶ 42 The State then filed a notice of intent to seek enhanced sentences on the first degree

murder and attempted murder charges based on the fact that defendant personally discharged a

firearm causing both death and great bodily harm. On December 12, 2014, the cause proceeded

by way of a stipulated bench trial. The State dismissed the home invasion, aggravated battery,

and armed robbery charges.

¶ 43 Both parties presented a number of stipulations as to evidence, testimony of the

witnesses, and transcripts from the trials of Mary Vetor and Jason Orasco.

¶ 44 The evidence tended to show that defendant and Jason Orasco broke into Terdic’s home

in the early morning hours of July 7 looking for money and drugs. When they found only a small

10 amount of both, they woke up the sleeping couple and demanded more. Vasilakis recognized

Orasco’s voice because she had known him for several years through her sister. She picked

defendant out of a lineup as the man who was holding the gun most of the time. Terdic and

Vasilakis were tied up, ordered to lie on their stomachs, and a pillow was placed over their

heads. Defendant asked if they should use the bat to try to knock out the victims. Orasco said

“no” and that defendant should just “do it.” Vasilakis felt someone on the bed over Terdic, who

was lying next to her, and then she heard a shot. The person got up, went around the bed, and got

on top of her. She heard two clicks and a bang, and then she realized she had been shot. After

defendant and Orasco left, Vasilakis untied herself and had the neighbor call the police.

¶ 45 The trial court found defendant guilty and that the State had proved the enhancement

factors.

¶ 46 On February 27, 2013, the court sentenced defendant to 50 years on the murder

conviction and 40 years on the attempted murder conviction. The sentences were to run

consecutively to one another. The court further awarded defendant custody credit from July 8,

2009, to February 27, 2013.

¶ 47 Defendant subsequently filed a motion to reduce his sentence, arguing that it was

¶ 48 Defendant appeals.

¶ 49 ANALYSIS

¶ 50 I. Denial of Defendant’s Motion to Suppress

¶ 51 Defendant first contends that the trial court erred in denying his motion to suppress.

Specifically, that his statement cannot be considered voluntary where he was 17 years old at the

11 time, had a limited education, read only at a fifth or sixth grade level, did not have contact with a

parent or other concerned adult, and had minimal prior contacts with the police.

¶ 52 When faced with a challenge to a circuit court’s ruling on the voluntariness of a

confession, a reviewing court will not disturb the trial court’s factual findings unless they are

against the manifest weight of the evidence. However, the ultimate ruling on whether a

confession was voluntary is reviewed under the de novo standard. People v. Murdock, 2012 IL

112362, ¶ 29.

¶ 53 Illinois courts have long recognized that receiving a confession from a juvenile is a

“sensitive concern.” People v. Prude, 66 Ill. 2d 470, 476 (1977); Murdock, 2012 IL 112362,

¶ 32. As a consequence, “ ‘the greatest care must be taken to assure that the admission was

voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the

product of ignorance of rights or of adolescent fantasy, fright or despair.’ ” People v. Simmons,

60 Ill. 2d 173, 180 (1975) (quoting In re Gault, 387 U.S. 1, 55 (1967)). Due to these concerns, an

additional factor is recognized that is not present in cases involving confessions by adults. This

factor, commonly known as the “concerned adult” factor, considers whether the juvenile, either

before or during the interrogation, had an opportunity to consult with an adult interested in his

welfare. In re G.O., 191 Ill. 2d 37, 54-55 (2000).

¶ 54 Thus, in determining whether a juvenile’s confession was voluntarily given, relevant

considerations include (1) the juvenile’s age, intelligence, background, experience, education,

mental capacity, and physical condition at the time of questioning; (2) the duration of the

detention, including whether the police physically or mentally abused the juvenile or employed

trickery or deceit in obtaining the confession; and (3) whether the juvenile had an opportunity to

speak with a parent or other concerned adult prior to or during the interrogation, including

12 whether the police prevented or frustrated such opportunities. Murdock, 2012 IL 112362, ¶¶ 30-

32. No single factor is dispositive; rather, the courts must consider the totality of the

circumstances surrounding the confession. Id. ¶ 30.

¶ 55 While we acknowledge that defendant suffered from some mental health disorders and

did not finish high school, based upon our review of the record, the trial court’s factual findings

and prevailing case law on the subject, we cannot find that the trial court erred in denying

defendant’s motion to suppress.

¶ 56 Defendant places a great amount of emphasis on the fact that he did not have contact with

a concerned adult during the interrogation. He argues that the concerned adult factor weighs

heavily in his case, where the Juvenile Court Act of 1987 (the Act) provides:

“A law enforcement officer who arrests a minor without a warrant

under Section 5-401 shall, if the minor is not released, immediately

make a reasonable attempt to notify the parent or other person

legally responsible for the minor’s care or the person with whom

the minor resides that the minor has been arrested and where the

minor is being held; and the law enforcement officer shall without

unnecessary delay take the minor to the nearest juvenile police

officer designated for these purposes in the county of venue or

shall surrender the minor to a juvenile police officer in the city or

village where the offense is alleged to have been committed.” 705

ILCS 405/5-405(2) (West 2008).

¶ 57 We note, however, that defendant was not subject to the provisions of the Act at the time

of the shooting and subsequent interrogation, where section 5-120 provided that the relevant

13 provisions of the Act applied to minors who violated or attempted to violate the law prior to their

seventeenth birthday. 705 ILCS 405/5-120 (West 2008). Defendant was 17 years old at the time

of the incident in July 2009. Pursuant to Public Act 98-61 (eff. Jan. 1, 2014), the legislature

amended section 5-120 to apply to 17-year-olds. Pub. Act 98-61, § 5 (eff. Jan. 1, 2014)

(amending 705 ILCS 405/5-120). This change occurred 4½ years after defendant’s interrogation.

¶ 58 Defendant concedes he falls outside the purview of the Act but, notwithstanding that,

argues that the concerned adult factor still applies to him on common law grounds, citing People

v. Westmorland, 372 Ill. App. 3d 868, 880 (2007). Westmorland, however, is readily

distinguishable from the case at bar. In Westmorland, the 17-year-old defendant charged with

multiple sex offenses moved to suppress his statements to police as involuntary. The trial court

granted the motion, noting that despite the fact that defendant was 17 years old, “ ‘[h]e appears

not to be a very mature 17.’ ” Id. at 874. Defendant struck the court as being somewhat

immature, a little bit pudgy with rosy cheeks. Id. The court further observed defendant as under

six feet tall, wide-eyed, frightened, with no noticeable facial hair. Id.

¶ 59 By comparison, the interviewing officer was an imposing figure, well over six feet tall,

over 200 pounds, fit and muscular, and with a dominant personality. Id. The court also found that

the defendant was handcuffed and abandoned in the interrogation room, the officer used

threatening language, and that the officers engaged in some deception during the interview when

they led defendant to believe that if he cooperated he could go home. Police refused defendant’s

two requests to contact his mother and made no effort themselves to contact defendant’s parents

before or during the interview. Id. at 890. The appellate court affirmed, noting that the Act did

not restrict the factors to be considered under the common law/constitutional voluntariness

inquiry. Id. at 880. Applying the concerned adult factor, the court found that under the totality of

14 the circumstances, the State did not prove by a preponderance of the evidence that defendant’s

confession was voluntary. Id.

¶ 60 We are confronted with a very different scenario here. The trial court reviewed the

interview tape twice and observed defendant during his testimony on the motion to suppress. The

trial court thoroughly and methodically considered the factors of defendant’s age, intelligence,

background, experience, mental capacity, education and physical condition at the time of

questioning. Defendant was no wide-eyed, 17-year-old that appeared immature. Quite the

opposite, defendant responded appropriately to questioning and was articulate, both during the

interview and in his testimony during the suppression hearing. While there was some allusion to

force and deception on the part of officers in Westmorland, there was no such behavior exhibited

by officers here. Both Marquez and Georgeff were trained juvenile officers, and Georgeff

testified that they acted in defendant’s best interests. That Marquez and Georgeff only recorded

the confession portion of defendant’s interview does not render the statement involuntary. The

trial court clearly found the officers’ testimony credible that they initially only brought defendant

in to establish his whereabouts and ask a few questions.

¶ 61 Finally, the officers were not bound by the dictates of the Act to contact defendant’s

mother or to allow him to speak with a concerned adult. Even when considering the concerned

adult factor as one of many when determining the voluntariness of a confession, our supreme

court has specifically held that a juvenile confession should not be suppressed simply because he

was denied the opportunity to confer with a concerned adult. In re G.O., 191 Ill. 2d at 55. Here,

there were conflicting accounts from defendant and the officers regarding whether or not he

requested to speak with his mother. The trial court found that the fact defendant did not speak

with his mother or another concerned adult was not dispositive. Based on the totality of the

15 circumstances presented, we agree. The trial court’s factual findings are not against the manifest

weight of the evidence. Accordingly, we find that defendant’s statements were voluntary and the

trial court did not err in denying his motion to suppress.

¶ 62 II. Bona Fide Doubt of Defendant’s Fitness to Stand Trial

¶ 63 Defendant contends that after the trial court signed an order finding a bona fide doubt of

defendant’s fitness and ordering a psychological evaluation, the trial court erred when it failed to

hold the statutorily required fitness hearing before proceeding to the stipulated bench trial.

Despite his failure to object at trial or addressing it in his posttrial motion, defendant contends

we should review this issue under the second prong of the plain-error doctrine. Without

addressing defendant’s alleged forfeiture of the issue or mentioning plain-error review, the State

argues that the trial court did not actually raise or find a bona fide doubt of defendant’s fitness

but merely granted defendant’s motion for a fitness examination.

¶ 64 First, the plain-error doctrine allows a reviewing court to consider unpreserved error

when one of two conditions is met:

“ ‘(1) a clear or obvious error occurred and the evidence is so

closely balanced that the error alone threatened to tip the scales of

justice against the defendant, regardless of the seriousness of the

error, or (2) a clear or obvious error occurred and that error is so

serious that it affected the fairness of the defendant’s trial and

challenged the integrity of the judicial process, regardless of the

closeness of the evidence.’ ” People v. Walker, 232 Ill. 2d 113, 124

(2009) (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)).

16 ¶ 65 “Under both prongs of the plain-error doctrine, the burden of persuasion remains with

defendant.” Id. (citing People v. Naylor, 229 Ill. 2d 584, 593 (2008)). The initial step in

conducting plain-error analysis is to determine whether error occurred at all. People v. Hudson,

228 Ill. 2d 181, 191 (2008). We are therefore obligated to conduct a substantive review of the

issue. See People v. Johnson, 208 Ill. 2d 53, 64 (2003).

¶ 66 Here, defendant’s claim implicates section 104-11 of the Code of Criminal Procedure of

1963 (the Code), which provides, in relevant part, as follows:

“(a) The issue of the defendant’s fitness for trial, *** may be

raised by the defense, the State or the Court at any appropriate time

before a plea is entered or before, during, or after trial. When a

bona fide doubt of the defendant’s fitness is raised, the court shall

order a determination of the issue before proceeding further.

(b) Upon request of the defendant that a qualified expert be

appointed to examine him or her to determine prior to trial if a

bona fide doubt as to his or her fitness to stand trial may be raised,

the court, in its discretion, may order an appropriate examination.

However, no order entered pursuant to this subsection shall prevent

further proceedings in the case. An expert so appointed shall

examine the defendant and make a report as provided in Section

104-15. Upon the filing with the court of a verified statement of

services rendered, the court shall enter an order on the county

board to pay such expert a reasonable fee stated in the order.” 725

ILCS 5/104-11 (West 2012).

17 ¶ 67 Also at issue is section 104-13, under which defendant originally brought his motion for

fitness hearing and for appointment of an expert witness to determine defendant’s sanity. That

section provides, in pertinent part, as follows:

“(a) When the issue of fitness involves the defendant’s mental

condition, the court shall order an examination of the defendant by

one or more licensed physicians, clinical psychologists, or

psychiatrists chosen by the court.” 725 ILCS 5/104-13 (West

2012).

¶ 68 The parties dispute whether or not the trial court expressly made a finding that a bona

fide doubt of fitness existed. This is based in large part on the fact that the signed order, drafted

by defense counsel, states: “This matter coming on for hearing on defendant’s motion for expert

witness and for fitness hearing, and for other relief, said motion being uncontested by the People

of the State of Illinois, and the Court finding that a bonafide doubt exist [sic] as to Defendant’s

fitness to stand trial under 725 ILCS 5/104-13 et seq.”

¶ 69 We agree with the State and find People v. Hanson, 212 Ill. 2d 212 (2004), directly on

point. In Hanson, our supreme court determined that a grant of a defense motion for a

psychological evaluation, without more, does not create a sufficient inference that the trial court

found bona fide doubt of defendant’s fitness to stand trial such that the trial court would be

required to hold a fitness hearing before proceeding.

¶ 70 Specifically, the court noted that the defense motion referred only to section 104-13(a) of

the Code (725 ILCS 5/104-13(a) (West 2012)) and made no reference to section 104-11(a) or (b).

Hanson, 212 Ill. 2d at 218. Section 104-13(a) only specifies who may be appointed to examine a

defendant when the question of fitness involves mental health issues and can be used in

18 conjunction with section 104-11(a) or (b). Id. at 219. Thus, the language in defendant’s own

motion failed to advance his argument that the trial court was bound to hold a fitness hearing

under section 104-11(a). Id. at 219-20.

¶ 71 Similarly, defendant here brought his motion pursuant to section 104-13(a), requesting

that the court appoint a qualified expert to evaluate defendant’s fitness to stand trial, not under

104-11(a). Although the order the court signed contained the language “bona fide doubt,” it was

defendant who drafted this order. A review of the record gives us no indication whatsoever that

the trial court or the State implicitly agreed with defense counsel, or raised on their own a bona

fide doubt of defendant’s fitness. We note that under Hanson, even if defendant filed a motion

under section 104-11(a), the trial court could specify its need for a fitness examination by an

expert to aid in its determination of whether a bona fide doubt is raised without a fitness hearing

becoming mandatory. Id. at 217. Considering that contemporaneously with the substance of

defendant’s motion, we find that defendant merely requested an expert evaluation.

¶ 72 Finally, this situation is a far cry from that of People v. Smith, 353 Ill. App. 3d 236

(2004), where the court raised sua sponte a bona fide doubt of defendant’s fitness to stand trial

after defendant’s first psychological evaluation and defendant’s expression of dissatisfaction

with the public defender and repeated requests to represent himself. Id. at 238. The trial court

further articulated her concern regarding defendant’s potential for “ ‘outbursts.’ ” Id. at 241. By

contrast, although the order drafted here was inartful, we find the court’s oral comments and

actions reflect that the issue of fitness had been raised, and it ordered a fitness evaluation to assist

in determining whether a bona fide doubt as to fitness actually existed. This determination is

bolstered by the fact that nothing in the record supported a conclusion that defendant was unfit.

19 ¶ 73 We accordingly find no error, plain or otherwise, in the trial court’s decision to proceed

to trial without holding a fitness hearing.

¶ 74 III. Sentencing

¶ 75 Defendant also contends that his 90-year sentence amounts to a de facto life sentence in

violation of Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), which prohibits the

imposition of a mandatory life sentence on offenders under the age of 18. Despite failing to raise

this issue during sentencing or in his later motion to reduce sentence, defendant argues the court

can review a challenge to the constitutionality of a sentencing scheme at any time. People v.

Ruiz, 342 Ill. App. 3d 750, 762 (2003).

¶ 76 The State counters that those cases cited by defendant, Miller v. Alabama, Graham v.

Florida, 560 U.S. 48 (2010), Roper v. Simmons, 543 U.S. 551 (2005), and People v. Miller, 202

Ill. 2d 328 (2008), are all distinguishable, insofar as they all dealt with the imposition on minor

defendants of either a mandatory natural life sentence without the possibility of parole or a death

sentence. The State argues that this court should not expand that line of cases to include

mandatory sentencing schemes that do not impose either the death penalty or life without parole.

We agree.

¶ 77 Defendant faced a mandatory minimum term of 45 years for first degree murder (a 20-

year minimum term plus 25-years-to-life firearm enhancement). See 730 ILCS 5/5-4.5-20(a)

(West 2008); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008). For attempted murder, defendant faced

a mandatory minimum term of 31 years (a 6-year minimum term plus 25-years-to-life firearm

enhancement). See 730 ILCS 5/5-4.5-25 (West 2008); 720 ILCS 5/8-4(a) (West 2008); 730 ILCS

5/5-8-1(a)(1)(d)(iii) (West 2008). These terms must be served consecutively (730 ILCS 5/5-8-

20 4(a)(i) (West 2008)). Defendant was therefore subject to a mandatory minimum term of 76

years’ imprisonment.

¶ 78 The thrust of defendant’s argument on appeal is that this 76-year minimum is

unconstitutional. However, the trial court did not sentence defendant to the minimum; it

sentenced him to 90 years’ imprisonment, or 14 years over the mandatory minimum. The 50-year

sentence on the murder charge exceeded the statutory minimum by 5 years. The 40-year sentence

on the attempted murder exceeded the statutory minimum by 9 years.

¶ 79 Defendant cites to no case law, nor has our research uncovered any, that allows a

defendant to argue that a sentence he did not actually receive is unconstitutional. Defendant does

not argue that the 90-year sentence is unconstitutional, nor does he contend that the sentence is

excessive or that the trial court abused its discretion in imposing it. Had the trial court sentenced

defendant to the mandatory minimum of 76 years, we would have a different case. We point out

that virtually every sentence has a mandatory minimum. It makes no difference to our analysis

here if the mandatory minimum sentence was 30 years or 76 years, where defendant was not

sentenced to the minimum. There is no indication that even had the minimum sentence been a

hypothetical 30 years, the trial judge in this case would not have sentenced defendant to 90 years

for what amounted to the execution of one individual and the attempted execution of another.

¶ 80 Notably, Miller v. Alabama did not hold that a juvenile could never be sentenced to life.

Rather, it held that a statutory scheme which makes the imposition of life without parole

mandatory for the sentencing court, i.e., the court has no discretion to consider the mitigating

factor of the offender’s juvenile status, is prohibited by the eighth amendment. Miller, 567 U.S.

at ___, 132 S. Ct. at 2469. Miller is distinguishable in at least two critical ways. First, the

Arkansas and Alabama statutes at issue in that case differ markedly from the sentencing

21 provisions at play in this case, insofar as the trial court’s discretion is limited to choosing

between death or life imprisonment without parole. See Ark. Code Ann. § 5-4-104(b) (1997) (“A

defendant convicted of capital murder [citation] or treason [citation] shall be sentenced to death

or life imprisonment without parole ***.”); see also Ala. Code §§ 13A-5-40(9), 13A-6-2(c)

(1982) (providing that murder is a Class A felony, the punishment for which is death or life

imprisonment without parole). Second, here, the trial court sentenced defendant to a term above

the mandatory minimum. That is, in Miller, defendants complained of the sentences handed

them.

¶ 81 Our supreme court issued a supervisory order to reconsider our holding in light of People

v. Reyes, 2016 IL 119271, which held that a minor could not, under Miller, receive a statutorily-

mandated de facto life sentence. The Reyes holding neither affects the rationale of our opinion in

this case nor requires a different result. The critical distinction between Reyes and the instant

case is that defendant Reyes was sentenced to the statute-mandated minimum of 97 years for his

crimes and, therefore, had standing to challenge the constitutionality of his sentence under

Miller. 1 Defendant, on the other hand, is challenging a sentence he never received and a

constitutional doctrine that does not apply to his case.

¶ 82 In this appeal, defendant argues only that the mandatory minimum sentences are

unconstitutional. We reject defendant’s attempts to attack the constitutionality of sentences he

did not receive. Defendant received discretionary sentences.

¶ 83 IV. Presentence Incarceration Credit

1 See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“Embedded in the traditional rules governing constitutional adjudication is the principal that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”) 22 ¶ 84 Defendant argues, and the State concedes, that he is entitled to one additional day of pre-

sentence incarceration credit. Defendant was taken into custody on July 7, 2009, but the trial

court’s judgment ordered that defendant be given presentence incarceration credit from July 8,

2009. Pursuant to People v. Smith, 258 Ill. App. 3d 261, 267 (1994), a defendant held in custody

for even part of a day, including the day he was arrested, must be given sentence credit for that

day.

¶ 85 Accordingly, we direct the trial court to grant defendant one extra day of presentence

incarceration credit.

¶ 86 CONCLUSION

¶ 87 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed as

modified.

¶ 88 Affirmed as modified.

¶ 89 JUSTICE WRIGHT, concurring in part and dissenting in part.

¶ 90 I agree on all issues except the issue regarding whether a bona fide doubt existed

concerning defendant’s fitness to stand trial. Like the author, I am troubled that the State has not

addressed defendant’s admission of forfeiture and defendant’s request for this court to excuse

forfeiture based on the second prong of plain error. Instead, the State argues the court order,

which included a finding that a bona fide doubt concerning this young offender’s fitness existed,

should be ignored by this court. According to the State, the trial court did not intend to find a

bona fide doubt of defendant’s fitness to stand trial, despite the language contained in its order.

¶ 91 I am reluctant to ignore the trial court’s explicit finding, as clearly and unequivocally

stated in the written order dated September 4, 2009. I must assume that even though the defense

drafted the order signed by the judge, both the prosecutor and the court had an opportunity to

23 read and either approve or reject the language contained in the proposed order. Absent some

allegation of fraud on the part of defense counsel, I presume the trial court intended to include

that finding in its written court order. Moreover, the prosecutor had a chance to strike this

language from the written order and failed to do so, thereby acquiescing in the order’s contents.

¶ 92 I respectfully suggest the court should have taken great care to resolve the fitness issue

after ordering a fitness examination. In fact, the court’s oversight, under these circumstances,

could have had drastic consequences impacting the viability of defendant’s convictions in the

event of an appeal. An unresolved issue regarding defendant’s fitness typically requires this court

to vacate defendant’s conviction and sentence and grant a new trial. See People v. Hill, 297 Ill.

App. 3d 500, 514 (1998). Hence, once this trial judge ordered a fitness examination, it was

incumbent on the trial court to ensure a fitness hearing occurred.

¶ 93 I note it has been more than one year since defendant’s December 10, 2012, trial and the

subsequent sentencing hearing. Under these circumstances, our supreme court has cautioned that

a retrospective fitness hearing would normally be inadequate to protect defendant’s rights when

more than one year has passed since defendant’s original trial and sentencing. People v. Neal,

179 Ill. 2d 541, 554 (1997). However, as recognized by Neal, in certain cases the issue of

defendant’s fitness or lack of fitness at the time of trial may be fairly and accurately determined

long after the fact. Id. I submit, this is such a case, since defendant does not contend on appeal

that he was actually unfit to stand trial. Therefore, unlike the majority, I conclude a retrospective

fitness hearing is required based on the second prong of plain error, which the State has not

addressed or contested on appeal.

¶ 94 Consequently, I respectfully disagree with the author’s conclusion that the written order

contained an unintended factual finding by the court, such that the trial court did not find a bona

24 fide doubt of defendant’s fitness existed. For these reasons, I suggest the trial court erred when it

failed to conduct a fitness hearing prior to defendant’s trial and this structural error cannot be

subject to forfeiture. In conclusion, I observe the proper remedy in this case is a retrospective

fitness hearing and, if the trial court determines defendant was unfit to stand trial after the

retrospective hearing, I would direct the trial court to vacate defendant’s convictions and set the

matter for a new trial.