2020 IL App (1st) 171486-U
FIFTH DIVISION March 31, 2020
No. 1-17-1486
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
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 14 CR 1778 ) IMAN FRISON, ) ) Honorable Vincent M. Gaughan, Defendant-Appellant. ) Judge presiding.
JUSTICE DELORT delivered the judgment of the court. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: Defendant’s attorney did not render ineffective assistance of counsel for failing to disclose Lynch evidence before trial. Defendant’s sentence is not an unconstitutional de facto life sentence. Affirmed.
¶2 Following a jury trial, defendant Iman Frison was convicted of first-degree murder and
sentenced to 47½ years’ imprisonment. Defendant appeals, contending that (1) his attorney
rendered ineffective assistance for failing to disclose evidence pursuant to People v. Lynch, 104
Ill. 2d 194 (1984), which would have allowed defendant to testify in support of his self-defense No. 1-17-1486
claim that he had previously seen the victim’s friend with a gun and (2) his 47½-year sentence is
an unconstitutional de facto life sentence. We affirm.
¶3 BACKGROUND
¶4 Defendant was charged in a multi-count indictment with first-degree murder in connection
with the shooting death of Andre Hunter. 1 The State’s theory at trial was that defendant shot the
victim because the victim and his friend, Jordan Moore, were not from the area where the shooting
occurred. Defendant asserted at trial that he shot the victim in self-defense.
¶5 Before trial, defendant filed a motion seeking to admit evidence pursuant to Lynch
regarding two prior incidents involving the victim and one prior incident involving Moore, both
of which defendant argued would support his defense of self-defense by showing the victim’s and
Moore’s propensity for violence. The two incidents regarding the victim included an arrest in
November 2006 for mob action, and another arrest in March 2012 for assault. The incident
regarding Moore related to an arrest in May 2014 for aggravated assault. The circuit court granted
defendant’s motion over the State’s objection.
¶6 At trial, Moore testified that, at around 2:30 p.m. on December 19, 2013, he and the victim
left school and went to the area of West 79th Street and South Vincennes Avenue. There, they
went to a corner store to purchase “snacks” and “little goodies.” While they were in the store, an
individual they knew from the neighborhood as “Tank” shook their hands and said “What’s up” to
them. Moore said there was no other interaction with Tank. After making their purchases, they
walked north along South Stewart Avenue toward West 75th Street.
¶7 At around West 77th Street, defendant ran up behind them and called out to them, “Yo, yo,
yo.” Moore said he and Hunter stopped because they thought it was someone they knew. As
1 In various parts throughout defendant’s opening brief, the victim’s last name is misspelled as “Houston.”
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defendant approached, Moore and Hunter realized they did not know this person. Moore saw,
however, that defendant had a gun in the waistband of his pants.
¶8 According to Moore, defendant pulled out the gun and asked them if they were from “75th
Wuga world,” which Moore explained was the area of 75th and Stewart. Moore responded that
they were not from that area but had grown up and were from “this” area (i.e., 79th and Stewart).
Defendant then pointed the gun at the victim’s chest, but the victim used his hand to move the gun
away from his chest. At that point, Tank (the individual they met at the convenience store)
approached them and told defendant, “Don’t let him touch that gun, pop his *** ass.”
¶9 Moore and the victim started to flee the area, but the victim slipped on some ice and snow
and fell. The victim had his hand out to defendant, who was standing over and to the right of the
victim. Moore saw defendant shoot the victim three times, heard the gun “click” twice because it
jammed, and then saw defendant shoot two additional times. Defendant and the other individual
then fled toward 79th Street.
¶ 10 Moore confirmed that neither he nor the victim had any weapons. Moore then called the
police and felt the victim’s neck to see if he was still breathing. Moore said the victim was not
breathing, so he placed his hand on the victim’s chest to make sure. Moore said that he heard the
victim’s last heartbeat, which he described as “just a little beat,” before the victim died at the scene.
After about ten minutes, police arrived and spoke to Moore. On the next day, Moore went to the
police station and identified defendant in a lineup. On cross-examination, Moore denied that the
victim “swatted” defendant’s gun away. The victim only “lightly pushed the gun away.”
¶ 11 Flynnard Turner then testified that he was a bus operator for the Chicago Transit Authority
(CTA), and at around 2:30 p.m. on December 19, 2013, he was standing at the intersection of West
78th Street and Vincennes waiting to begin his second shift. Turner saw a group of four to six
3 No. 1-17-1486
individuals walking north along Stewart. The group walked out of his line of sight, and about one
minute later, Turner then heard four to six gunshots. The shots came from the direction that the
group had been walking. Turner then ran across the street to the bus garage and saw the same
individuals running south in the same direction that had come from. Turner called the police, but
while on the phone, he noticed a “detective car” driving down the street, so he flagged it down.
He told the officers what he observed, and he added that one of the individuals who had “dreads”
was “fumbling” with the front of his jacket as he ran. Turner, however, could not see the person’s
face and was unable to identify any individual in a subsequent photographic lineup.
¶ 12 Chicago police officer Eric White then testified that, at around 2:30 p.m. on December 19,
2013, he and his partner, officer Sean McDermott, were driving south on Vincennes from West
76th Street when they were flagged down by a CTA bus driver. The driver told them what he had
observed, and White stated that he saw defendant running southbound on Vincennes while holding
his waistband as if holding onto something. White and his partner gave chase. White eventually
caught defendant and tackled him. The officers placed defendant under arrest, and when they
stood defendant up, a large revolver fell from defendant’s waistband. White further testified that
other officers recovered the weapon and transported defendant to the police station.
¶ 13 Dr. Marta Helenowski, an assistant Cook county medical examiner, testified as an expert
witness in the field of forensic pathology. Dr. Helenowski stated that she performed the autopsy
on the victim, and she observed five gunshot wounds. The victim had through-and-through
gunshot wounds on each forearm. The victim also had a gunshot wound that entered the right
upper chest and exited on the left side of the chest, perforating the heart and causing a “massive
hemorrhage in the chest cavity.” Dr. Helenowski also observed a “non-penetrating,” superficial
gunshot wound to the left abdomen, which only entered the skin and subcutaneous tissue but not
4 No. 1-17-1486
any of the body cavities. Finally, Dr. Helenowski found a gunshot wound that entered the left
lower back of the victim and exited on the right side of the chest. Dr. Helenowski confirmed that
the gunshot entered the back and exited the front of the victim’s body, and that there was no
evidence of close-range firing (i.e., within about 12 inches). The manner of death was homicide
caused by multiple gunshot wounds.
¶ 14 Chicago police sergeant Kevin Norris testified that he administered a gunshot residue test
on defendant at around 4:50 p.m. on December 19, 2013. Norris and a partner also recovered a
revolver from the crime scene, which had five spent cartridge cases and an empty sixth chamber.
Robert Berk testified that, on December 20, 2013, he was a trace evidence analyst with the Illinois
State Police. Berk stated that he analyzed the gunshot residue tests administered on defendant and
concluded that defendant’s right hand tested positive for gunshot residue. The State then rested.
¶ 15 Defendant testified on his own behalf. He stated that, on December 19, 2013, he was 18
years old. He stated that he had lived in that area with his family until around 2000, but the area
became “very violent,” so they moved to the neighborhood of East 72nd Street and South
Ridgeland Avenue. On the day of the murder, defendant said that he had spent the prior night at
his great aunt’s home, who still lived in the area. That afternoon, defendant left to go to a friend’s
house in the neighborhood, where they smoked marijuana for a couple of hours.
¶ 16 Afterwards, defendant said he went to wait for a bus to go home. Defendant admitted that
he was carrying a gun with him but did so only to protect himself because he had been attacked in
the past, most recently about two months prior to the victim’s murder when he was at school.
Defendant added that he would only carry the gun in that area because of the prior attacks.
Defendant said that he purchased the gun on “the street” from an individual he knew as “T.”
5 No. 1-17-1486
¶ 17 Defendant said that, while he was waiting for a bus, he saw Moore—whom he knew from
grade school—walking toward him in a group of between seven to nine other people. After they
greeted each other, Moore said he wanted to speak to defendant. Defendant said that he and Moore
were not on good terms because defendant had dated Moore’s sister in the past, and Moore had
threatened to “beat [defendant’s] ass” if defendant did not stop dating Moore’s sister. Defendant,
however, did not fear Moore because defendant said that, in response to Moore’s threats, defendant
stopped dating Moore’s sister. Defendant then crossed the street to Moore’s location because
defendant thought they were going to “smooth things out.”
¶ 18 When defendant caught up to Moore and the group, Moore asked defendant if he was still
talking to Moore’s sister. Defendant said he was not, and the victim said to Moore, “Why the ***
you still talking to him?” According to defendant, the victim then walked up and punched him.
Defendant said he only knew Moore and had never seen the victim or any of the other individuals
in the group before.
¶ 19 Defendant stumbled back a few feet and heard Moore tell the victim to “beat [defendant’s]
ass.” The victim then came toward defendant. Defendant pulled his gun out of his waist and heard
Moore tell the victim, “[D]on’t let him get that gun.” Defendant said the other individuals in the
group were approaching him from the left and right, eventually surrounding him.
¶ 20 At that point, defendant stated that the victim took a hold of defendant’s left shoulder and
right wrist. Defendant confirmed that he was holding the gun with his right hand. Defendant then
fired because he feared for his life.
¶ 21 Defendant stated that, although he did not see Moore with a gun at that time, he had seen
Moore with a gun before. When his trial counsel asked whether it was only once or on more than
6 No. 1-17-1486
one occasion, the State objected, arguing that the testimony had not been disclosed in defendant’s
pretrial motions. The following discussion then took place in a sidebar conference:
“[Assistant State’s Attorney]: Judge, there was extensive
litigation on the issue of Lynch. There is nothing that was filed by
the defense with regard to any prior gun possession on the part of
Mr. Moore. This is the first time that it is being addressed.
Judge, we would object given when it’s being broached. It
was not in any of the pretrial motions and furthermore, simple gun
possession, it doesn’t rise to the level of Lynch. We would object to
this being offered at this time based on those reasons.
THE COURT: What’s your response?
[Defense Counsel]: I think it comes in as reputation in the
community for having a gun.
THE COURT: No, come on now. Don’t be doing that. All
right. Why wasn’t it put in your motion for Lynch material?
[Defense Counsel]: We didn’t anticipate using it.
THE COURT: Okay. Then, you know, I wouldn’t let State
do it to you and I am not letting you do it to them.”
The court then ordered defendant’s answer that he had previously seen Moore with gun stricken
and directed the jury to disregard that answer.
¶ 22 Defendant could not remember how many times he fired the weapon but agreed that he
kept firing until it could no longer fire. Defendant said that the victim was standing when he fired
7 No. 1-17-1486
his weapon and was not lying on the ground. Defendant did not see what happened to the victim
after firing the gun.
¶ 23 Defendant said that, after he finished firing the gun, he ran back towards 79th Street for
“safety to just get away.” Defendant said no one was running with him or behind him. Defendant
also stated that, although he “crossed paths” with police officers while he was fleeing, he did not
stop and ask them for help because “it was just at the moment I never got the time to even think
about it.” Defendant said there was no other reason he did not speak to officers at the time.
Defendant denied intending to shoot someone that day, wanting to fire the gun, or wanting to harm
either Moore or the victim.
¶ 24 On cross-examination, defendant stated that “T,” the individual from whom he bought the
gun, was not Tank. Defendant conceded that the most recent incident in which he was attacked at
school took place downtown and not in the neighborhood where the shooting took place.
Defendant further conceded that neither the victim nor Moore was the individual who had attacked
defendant in an earlier incident outside “the gyro place on 79th Street.” Defendant also agreed
that, although he purchased the gun for protection because of the two prior incidents, he
nonetheless kept the gun at his great aunt’s house at “[West] 80th [Street] and Stewart” and would
have to walk from the bus stop at 79th Street—where the prior incident took place—to that
location. Defendant further conceded that, although he testified that he only needed the gun for
protection in the neighborhood where the shooting took place, he still had possession of the weapon
prior to the shooting, while he was waiting for a bus to return home. Defendant further admitted
that, although the victim hit him on the left side of his face by his eye with enough force to make
defendant stumble back, a photograph taken of him immediately after the shooting revealed no
8 No. 1-17-1486
bleeding, bruises, or scratches on defendant’s face. Defendant did not seek medical attention when
the police arrested him.
¶ 25 Defendant also stated that, after the victim grabbed defendant’s right wrist (where
defendant was holding the gun) and left shoulder, defendant had the gun “on [the victim’s] left
side.” Defendant said that he fired first into the victim’s left side, and although he was no longer
struggling with the victim after that first shot, the victim did not fall; instead, defendant stated that
the victim stood during the entire time that defendant was shooting. Defendant further denied that,
when he started shooting, the rest of the group ran. When the State countered, “So everybody just
stayed there and watched you with a gun,” defendant responded, “Yes, sir.”
¶ 26 When defendant fled the scene after the shooting, defendant admitted that he did not stop
while police were chasing him and yelling at him to stop until he was “cut off” by police. At that
point, defendant conceded that he still refused to show police his hands and kept holding onto the
gun until a police officer tackled him to the ground.
¶ 27 On redirect examination, defendant confirmed that he always kept the gun at his great
aunt’s house and never brought it back to his mother’s house where he lived. Defendant stated
that he brought it with him on his way back to his mother’s house because he was walking through
the area. Defendant also said that, normally, he would always take the bus back to his mother’s
house and no one ever gave him a ride back home. Defendant recalled that there was not a lot of
traffic at that time.
¶ 28 Chicago police sergeant Anthony Nicpon testified on behalf of the defense. Sergeant
Nicpon stated that, at around 2:30 p.m. on May 21, 2014, he was a police officer in the bicycle
patrol unit, and he and his partner placed the then 19-year-old Moore under arrest for street
performing without a permit. Sergeant Nicpon recalled that, when Moore was placed into a squad
9 No. 1-17-1486
car, Moore tried to kick out the windows and later said “CPD killer” to the officers. Sergeant
Nicpon further recalled that Moore also told him that the next time the officers stopped Moore,
“it’s on.” On cross-examination, Sergeant Nicpon testified that Moore did not actually kick out
any windows or place his hands on Nicpon, nor did Nicpon draw his revolver. Nicpon said that
Moore was charged with two misdemeanors, failure to have a permit and assault (based upon the
threats), and Nicpon did not recall having to testify in court about these events.
¶ 29 Chicago police officer Robert Brown then testified that, at around 6:30 p.m. on March 26,
2012, he and his partner placed the victim under arrest for refusing to leave the “King Gyro”
restaurant, making verbal threats to Brown, and using profanity. Brown recalled that the victim
said, “I don’t have to go anywhere. I’ll beat your ass. I don’t have to do anything you say.” Brown
added that the victim “balled up his fist and looked at me in a menacing way like he was going to
try to batter me.” Brown recalled that the victim was a juvenile but did not recall his age. On
cross-examination, Brown did not recall the victim taking “a swing” at him, hitting him, or fighting
Brown when Brown was placing the victim in handcuffs. Brown testified that he did not have to
draw his weapon, and he also could not remember being asked to testify as to these events.
¶ 30 Chicago police officer Ruhnke testified that, at around 7:03 p.m. on November 5, 2006, he
and his partner were in the area of 132 East Marquette Street when they saw a large crowd of more
than 10 people fighting with their bare fists and sticks. Ruhnke stated that the victim was a part
of that group and was 12 years old at that time. Ruhnke stated that the group refused their order
to disburse, so he placed the victim under arrest for “mob action, violence to person or property.”
On cross-examination, Ruhnke arrested six other people who were involved in the street fight.
Ruhnke arrested the victim for a misdemeanor juvenile offense. Ruhnke called the victim’s father,
who picked the victim up from the police station and took the victim home. Ruhnke never recalled
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the victim hitting him or any other officer involved in the arrest. When asked whether he recalled
the victim “specifically being violent or hitting anybody else on the scene that date [sic],” Ruhnke
responded, “No one on the scene was violent towards us at all.”
¶ 31 Chicago police detective Keith Allen then testified that, at the initial interview with Moore
following the shooting, Moore did not state that an individual approached him and the victim while
they were walking and point a gun at both his and the victim’s heads. Detective Allen, however,
stated that Moore informed them of that fact during a “secondary follow-up interview the same
day, [which was] more of a detailed interview.” The defense then rested.
¶ 32 Following closing arguments, the jury began deliberations. The jury subsequently found
defendant guilty of first-degree murder and further found that, during the commission of the
offense, defendant personally discharged a firearm that proximately caused the victim’s death.
¶ 33 During defendant’s sentencing hearing, defense counsel noted defendant’s upbringing in
mitigation, including defendant’s seizures that he had suffered from between the ages of 4 and 12.
Defense counsel also argued that, although defendant was 18 years old at the time of this offense,
the trial court should consider the mitigating factors noted in Miller v. Alabama, 567 U.S. 460
(2012) because defendant was “a young man whose brain was still developing, and his youth
should be considered a factor in sentencing.” Defense counsel asked for a minimum sentence.
¶ 34 The State produced no evidence in aggravation but referred the circuit court to defendant’s
presentencing investigation report (PSI). The State then argued that those cases in which the Miller
factors were extended to defendants over the age of 18 “hing[ed] on accountable defendants,”
whereas here, defendant “took a gun and shot a young man out on the street multiple times. He is
the shooter in this case.” The State further observed that the sentencing enhancements were
mandatory in this case and asked the court to impose an “appropriate” sentence.
11 No. 1-17-1486
¶ 35 Following arguments in aggravation and mitigation, the circuit court stated as follows:
“THE COURT: To Andre Hunter’s family, again, there is
nothing—there is no closure of this. There is always going to be
that loneliness and no sentence whatsoever will ever bring Andre
back. These are things that I—I just see these senseless killings all
the time. It’s just a shame. It’s just a shame. You can see the loss
of Andre’s family here today.
Our Supreme Court of the United States has come down with
a pronouncement about youthful offenders, and they said that when
sentencing somebody, especially if they’re under the age of 18, the
most important factor is you, and *** the Illinois courts of review
*** have interpreted this also to make sure that certain sentences
aren’t in effect, a natural life sentence.
So evaluating the circumstances here, taking into
consideration that youth is a very important factor in sentencing and
looking at the chances for rehabilitation, I find that I will sentence
Mr. Frison to 22½ years on the first degree murder [conviction]. ***
The jury found that during the commission of the first degree
murder, that Mr. Frison fired a weapon that proximately caused
death to Andre Hunter. I will sentence—the minimum sentence on
that is 25 years, and that has to be served consecutive[ly].”
¶ 36 This appeal followed.
12 No. 1-17-1486
¶ 37 ANALYSIS
¶ 38 Defendant first contends that his trial counsel was ineffective for failing to disclose Lynch
evidence that would have supported defendant’s claim of self-defense. He argues that evidence
that he had previously seen Moore with a gun “would have been the best evidence to bolster his
claim that he was afraid [the victim], Moore, and the others with them in the crowd were going to
hurt him.” He asks that we reverse his conviction and remand for a new trial.
¶ 39 Claims of ineffective assistance of counsel are governed by the familiar standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the supreme court in People v.
Albanese, 104 Ill. 2d 504 (1984). People v. Petrenko, 237 Ill. 2d 490, 496 (2010). To establish
ineffective assistance, a petitioner must show both that (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced the petitioner. Id. Deficient performance is
performance that is objectively unreasonable under prevailing professional norms, and prejudice
is found where there is a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Petrenko, 237 Ill. 2d at 496-97; Strickland,
466 U.S. at 690, 694. The failure to establish either prong of the Strickland test is fatal to the
claim. People v. Clendenin, 238 Ill. 2d 302, 317-18 (2010) (citing Strickland, 466 U.S. at 697).
¶ 40 Notably, “[c]ounsel’s failure to present irrelevant evidence is not incompetence.” People
v. Rush, 294 Ill. App. 3d 334, 342 (1998). In addition, matters of trial strategy are generally
immune from claims of ineffective assistance of counsel except where the trial strategy results in
no meaningful adversarial testing. People v. West, 187 Ill. 2d 418, 432-33 (1999). In essence,
effective assistance of counsel simply refers to “competent, not perfect,” representation. People
v. Stewart, 104 Ill. 2d 463, 491-92 (1984). Thus, mistakes in trial strategy, tactics, or judgment
will not “of themselves” render a trial counsel’s representation constitutionally defective. Id. For
13 No. 1-17-1486
these reasons, we are highly deferential to trial counsel as to trial strategy, and we must evaluate
her performance from her perspective at the time and not “through the lens of hindsight.” People
v. Perry, 224 Ill. 2d 312, 344 (2007) (citing People v. Madej, 177 Ill. 2d 116, 157 (1997)).
¶ 41 In Lynch, our supreme court held that, when a defendant raises the defense of self-defense,
the victim’s violent and aggressive character is relevant to show who was the aggressor, which
defendant may show by appropriate evidence. Lynch, 104 Ill. 2d at 200. Evidence of a victim’s
violent character may be offered to either: (1) demonstrate that the defendant’s knowledge of the
victim’s violent tendencies affected his perceptions of and reactions to the victim’s behavior; or
(2) “support the defendant’s version of the facts where there are conflicting accounts of what
happened,” even if the defendant had no prior knowledge of the victim’s violent acts. Id. at 199-
200. Although evidence of a victim’s violent character is admissible when a defendant presents
evidence that he acted in self-defense, proof of the victim’s prior nonviolent crimes would not tend
to prove or disprove their violent character or reputation. Id.
¶ 42 In this case, trial counsel did not render ineffective assistance. At the outset, we question
whether trial counsel’s failure to disclose this evidence was objectively unreasonable. The
evidence at issue consisted of the mere allegation that defendant had seen Moore (and not the
victim) in possession of a weapon at some point in the past. Exercising one’s constitutional right
to possess a firearm neither constitutes a crime of violence nor establishes per se an individual’s
violent or aggressive character. See People v. Aguilar, 2013 IL 112116, ¶¶ 21-22 (citing Moore
v. Madigan, 702 F.3d 933 (7th Cir. 2012)). As noted above, counsel is not ineffective for failing
to present irrelevant evidence. Rush, 294 Ill. App. 3d at 342.
¶ 43 In addition, the jury also heard evidence of both Moore’s and the victim’s prior arrests and
their violent behavior toward the police. In particular, the jury was well aware that the victim had
14 No. 1-17-1486
been arrested twice: once for mob action and another time when he refused to leave a restaurant
and threatened a police officer by saying “I don’t have to go anywhere. I’ll beat your ass. I don’t
have to do anything you say,” and by “ball[ing] up his fist” and looking menacingly at the officer.
The jury also heard that Moore had been arrested and charged with assault based upon his acts of
kicking at a police car window, shouting “CPD killer,” and threatening the arresting officer that
the next time the officer arrested Moore it would be “on.” Ineffective assistance of counsel does
not arise from a failure to present cumulative evidence. See People v. Dupree, 2018 IL
122307, ¶ 51. Since we must be highly deferential to trial counsel as to trial strategy and evaluate
her performance from her perspective at the time and not “through the lens of hindsight” (Perry,
224 Ill. 2d at 344), we cannot hold that her failure to disclose this evidence pursuant to Lynch was
objectively reasonable.
¶ 44 Nonetheless, we recognize that it is possible that Moore’s previous possession of a weapon
could indicate a violation of certain firearm laws, such as those requiring a firearm owner’s
identification (FOID) card or those prohibiting certain felons from possessing weapons. Setting
aside whether (1) Moore’s act could support defendant’s claim of self-defense against the victim
and (2) violation of these laws indicates a violent and aggressive tendency, there is nothing in the
record to indicate that defendant knew that Moore’s prior possession implicated these laws. Since
defendant lacked this knowledge, it could not affect defendant’s “perceptions of and reactions to
[Moore’s and the victim’s] behavior” under the first Lynch scenario. Lynch, 104 Ill. 2d at 199-
200. The second Lynch scenario, which arises when the evidence of an alleged violent character
“support[s] the defendant’s version of the facts where there are conflicting accounts of what
happened” (id. at 199-200), is also inapplicable. Defendant freely admitted at trial that neither
Moore nor the victim were armed, and this did not conflict with the State’s evidence.
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¶ 45 In any event, even assuming, arguendo, that defendant’s claim met the first prong of the
Strickland test, it did not meet the second. The record in this case reveals that defendant, who
admitted that he never saw the victim with a gun and that he was the only person armed with a
firearm, shot five times into the victim, emptying the revolver. Notably, Dr. Helenowski testified
that one of the five gunshots entered the back of the victim and exited the front of his body. The
unmistakable inference from this evidence is that defendant shot the victim in the back and then
four additional times, which is well after any possible threat would have dissipated. On these facts,
there is no reasonable probability that the jury’s verdict would have been different, even if evidence
of Moore’s possession of a firearm at some point in history been presented to them. Thus,
defendant cannot meet both prongs of the Strickland test, so his claim necessarily fails. See
Clendenin, 238 Ill. 2d at 317-18 (2010) (citing Strickland, 466 U.S. at 697).
¶ 46 Finally, we reject defendant’s reliance upon People v. King, 316 Ill. App. 3d 901 (2000),
People v. O’Banner, 215 Ill. App. 3d 778 (1991), and People v. Skinner, 220 Ill. App. 3d 479
(1991). In King, an attorney performed deficiently because he failed to call the only witness who
could have corroborated the defendant’s alibi defense. King, 316 Ill. App. 3d at 916. In O’Banner,
this court concluded that trial counsel was ineffective for failing to (1) call defendant and her son
to testify that her son fired the shot that killed the victim; (2) introduce the 9-1-1 call placed by
defendant, which would have corroborated her proffered testimony and contradicted that of a
police officer; and (3) introduce the evidence of the prior restraining order against the victim,
which would have supported a claim of self-defense. O’Banner, 215 Ill. App. 3d at 791-92. In
Skinner, we held that trial counsel’s failure to both (1) call the defendant’s mother and stepfather
to corroborate defendant’s trial testimony that he did not live in a residence where stolen goods
were found and (2) cross-examine a third witness regarding that witness’s post-theft silence
16 No. 1-17-1486
constituted ineffective assistance of counsel “which, when combined,” met the second prong of
the Strickland test. Skinner, 220 Ill. App. 3d at 484. Here, there is no similar combination of
errors that would mandate relief, and defendant’s self-defense claim was corroborated: the jury
heard not only defendant’s testimony but also evidence of Moore’s and the victim’s prior arrests
and violent and aggressive behavior. King, O’Banner, and Skinner are thus unavailing.
¶ 47 Defendant next contends that his 47½-year sentence is an unconstitutional de facto life
sentence. Defendant argues that the circuit court, other than acknowledging the importance of
youth as a “very important” factor in sentencing, failed to give “any adequate consideration to the
attributes of youth that apply equally” to both 18-year-olds and juveniles. Defendant concludes
that his sentence violates both the eighth amendment to the United States Constitution and the
proportionate penalties clause of the Illinois constitution as applied to him. He asks that we remand
this cause for resentencing without the mandatory firearm enhancements.
¶ 48 Defendant first contends that Miller, which held that the Eighth Amendment prohibited
mandatory life sentences for offenders under the age of 18, should nonetheless extend to young
adult offenders such as himself. Defendant argues that the circuit court should not have imposed
a 47½-year “de facto life sentence” on him without considering his use of marijuana, which began
at the age of 12 and consisted of him smoking as many as 10 “blunts” of marijuana each day.
Defendant stated that his “considerable marijuana habit undoubtedly affected his judgment” and
his ability to understand the consequences of his confrontation with Moore and the victim.
Defendant further noted that his PSI indicated a close relationship between him and his family, his
attainment of his high school diploma, and attendance at a local community college.
¶ 49 Defendant’s claim is unavailing. Miller explicitly held that the Eighth Amendment only
prohibits “mandatory life without parole for those under the age of 18” at the time of their crimes.
17 No. 1-17-1486
(Emphasis added.) Miller, 567 U.S. at 465. Our supreme court later observed that, when the
United States Supreme Court held that 18 would be the age to differentiate between juvenile and
adult offenders, it was not “based primarily on scientific research” and merely coincided with the
point where society determines adulthood and childhood for many other purposes. People v.
Harris, 2018 IL 121932, ¶ 60 (citing Roper v. Simmons, 543 U.S. 551, 574 (2005)). The Harris
court further noted that new research findings still did not alter that “traditional line.” Id. The
court then expressed agreement with those courts that had repeatedly rejected this claim and held
that the age of 18 still marked the line between juveniles and adults for sentencing purposes.
Id. ¶ 61. Defendant would clearly wish to change where that line is drawn but doing so is best left
to the legislature. See generally, People v. Buffer, 2019 IL 122327, ¶¶ 34-35.
¶ 50 Defendant next contends that his sentence violates the proportionate penalties clause of the
Illinois constitution as applied to him. This clause provides in relevant part that “All penalties
shall be determined both according to the seriousness of the offense and with the objective of
restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. A sentence violates the
proportionate penalties clause if it is “cruel, degrading, or so wholly disproportionate to the offense
as to shock the moral sense of the community.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005)
(citing People v. Moss, 206 Ill. 2d 503, 522 (2003)). We may determine whether a sentence shocks
the moral sense of the community by considering both objective evidence and “the community’s
changing standard of moral decency.” People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008).
¶ 51 In this case, defendant provides little analysis or support for his contention. He merely
states that he was 18 years old at the time of the shooting and then makes the conclusory assertion
that a 47½-year sentence does not provide him with “any meaningful opportunity at rehabilitation.”
He further cites People v. Gipson, 2015 IL App (1st) 122451 as support. Gipson, however, is
18 No. 1-17-1486
factually distinct from defendant’s case in that the juvenile defendant there was convicted of
attempted murder and had a documented history of mental health issues that “were not
appropriately addressed.” Id. ¶ 74. The defendant in Gipson was also sentenced under a
sentencing scheme that prevented the circuit court from considering the defendant’s youth and
mental disorders. Id. ¶ 75.
¶ 52 Here, by contrast, although defendant was an adult and not a juvenile, the circuit court
nevertheless did take defendant’s youth into account when imposing the sentence. Moreover,
defendant in this case was convicted of first-degree murder, not attempted murder. He had no
documented mental health issues, unlike the defendant in Gipson. Finally, the circumstances of
this crime were quite severe: the defendant emptied five rounds into the unarmed victim—one of
which entered the victim’s back—because the victim did not live in that neighborhood. On these
facts, defendant’s 47½-year sentence is not “cruel, degrading, or so wholly disproportionate to the
offense as to shock the moral sense of the community.” Sharpe, 216 Ill. 2d at 487. Defendant’s
claim is therefore meritless.
¶ 53 CONCLUSION
¶ 54 Defendant’s trial counsel did not render ineffective assistance for allegedly failing to to
disclose Lynch evidence before trial. In addition, petitioner’s 47½-year aggregate sentence is not
an unconstitutional de facto life sentence. We therefore affirm the judgment of the circuit court.
¶ 55 Affirmed.