People v. Garcia

2023 IL App (1st) 172005, 236 N.E.3d 488

Opinion

2023 IL App (1st) 172005

1-17-2005

SIXTH DIVISION

March 31, 2023

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 18394 ) DANIEL GARCIA, ) Honorable ) Kevin Sheehan, Petitioner-Appellant. ) Judge Presiding.

JUSTICE TAILOR delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice C.A. Walker concurred in the judgment and opinion.

OPINION

¶1 Daniel Garcia was convicted of three counts of aggravated criminal sexual assault and

one count of aggravated kidnapping and sentenced to 25 years’ imprisonment on each of the four

counts, to run consecutively, for a total of 100 years. Garcia appeals, arguing that the trial court

erred in denying his motion for a new trial based on newly discovered evidence and ineffective

assistance of trial counsel. He also contends that his 100-year sentence violated the United States

and Illinois Constitutions and was otherwise excessive. We affirm the judgment of Garcia’s 1-17-2005

conviction but vacate his sentence and remand to the trial court for a new sentencing hearing.

¶2 I. BACKGROUND

¶3 Prior to trial in this case, in September of 2015, the assistant public defender who

represented Garcia at the time requested a behavioral clinical exam (BCX) to evaluate Garcia for

sanity at the time of the offense, citing Garcia’s claim that he had “mental health issues.”

¶4 Following the BCX, the psychologist indicated that in his meeting with Garcia, Garcia’s

“affect was stable” and his thought process was “logical and goal directed.” Garcia provided a

vague account of audio and visual hallucinations, which are severe psychotic symptoms, and

“highly inconsistent with his calm, logical and friendly demeanor.” Garcia reported a history of

learning disability and past treatment for “bipolar,” but provided vague and evasive responses to

follow-up questions. Garcia denied symptoms of psychosis or mania at the time of his arrest,

indicating he “was feeling fine, just a little depressed about [his] friend.” He gave a vague

account description but was evasive again when asked follow-up questions.

¶5 The psychologist reviewed Garcia’s medical records from Cermak Hospital where Garcia

had been given a mental health screening three days after his arrest in this case. During that

screening, Garcia denied symptoms of psychosis or mania and no indications of either were

observed. He was then placed in the general jail population.

¶6 Notes during follow-up visits with the psychologist in 2014-2015 revealed that Garcia

displayed no external indication of psychosis or mania. Due to Garcia’s vague account of

hallucinations, and his manipulative behavior, there was “strong concern” for exaggeration of

symptoms “because [Garcia] thinks it will help with his case and being granted [mental health]

probation.” Garcia was not prescribed any psychotropic medication, as Garcia’s issues appeared

to be behavioral, not mental illness. In addition, the psychologist reviewed the police reports that

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showed Garcia “took steps to obscure his identity,” suggesting that Garcia understood the

criminal nature of his actions. Based on his assessment of the available information, the

psychologist opined that Garcia was legally sane at the time of the offense.

¶7 The issue of Garcia’s mental health arose again during bond hearings in November and

December of 2015, during which defense counsel stated that Garcia had not worked for the last

four to five years because of a “bipolar disorder” and Garcia received social security disability

income. The court inquired as to whether defense counsel was seeking a second opinion as to

sanity. Defense counsel responded that he was not.

¶8 Four days prior to the start of trial, attorney Frank Avila filed his appearance for Garcia.

The court noted that Garcia hiring a new attorney on the eve of trial appeared to be a dilatory

tactic, but allowed Avila to file his appearance, nevertheless. Garcia was advised of the

sentencing possibilities if convicted after a trial.

¶9 The State filed a motion to prevent Garcia from introducing evidence of any prior sexual

interaction between he and the victim. The State also presented an oral motion in limine to bar

Garcia from introducing evidence of his mental health history, if any existed. Avila responded

that he was “not anticipating doing that” but stated Garcia was bipolar and had been receiving

social security prior to his incarceration. The court indicated that any evidence of Garcia’s

mental health history was “not coming in” because there was no affirmative defense of insanity

and there is no other defense that has to do with mental illness.

¶ 10 At trial, C.P. testified that she was employed as an esthetician and was working on

October 2, 2014, at a fashion show in downtown Chicago. After the event, she went to an after-

party at a nearby hotel with John Castilla and another woman. She was wearing leather shorts, a

black sweater, a leather jacket, and black shoes. While they were at the party, John invited C.P.

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to his lake house in Wisconsin. C.P. agreed, and they left the party between 11:30 p.m. and

midnight.

¶ 11 John drove C.P.’s 2012 Hyundai Sonata because he had not been drinking and knew

where they were headed. C.P. consumed two drinks and was not intoxicated but did not want to

drive because it was raining. John stopped to get gas at a gas station at Irving Park Road and

Pulaski Road in Chicago. He started the gas pump, and then went inside the store. C.P. remained

in the car.

¶ 12 As C.P. sat in her car, Garcia opened the car door and jumped into the driver’s seat. C.P.

did not know Garcia. She screamed, and Garcia punched her repeatedly in the face, while cursing

at her and telling her to “shut up.” She tried to grab the steering wheel in an attempt to crash the

car, but Garcia was able to drive it out of the gas station. C.P.’s attempt to block his punches

with her hands resulted in most of her acrylic fingernails breaking off.

¶ 13 As Garcia drove, he told C.P. that he was with the cartel and was there to kill her, and

that they had kidnapped the man she was with and threw him in the trunk of a car. Garcia said

that he had a gun. C.P. told Garcia that she needed to get home to her son, hoping Garcia would

see her as a mother who was raising a child. Garcia continued to drive and then parked.

¶ 14 After he parked, Garcia grabbed C.P.’s breasts. When she resisted, he choked her with

both hands around her neck. C.P. could not breathe and nearly lost consciousness. He then ripped

the crotch out of C.P.’s shorts and inserted his penis into her vagina, while commenting about

her liking what he was doing. He kissed her and licked her face as he touched her “all over” until

he ejaculated. After he ejaculated, Garcia returned to the driver’s seat and grabbed C.P. by her

hair and forced her to “suck his penis” while making vulgar, sexual comments. Then, he grabbed

her by her hair and made her get on top of him. Garcia threatened to kill her. Garcia again put his

4 1-17-2005

penis in C.P.’s vagina. Garcia also inserted his finger into C.P.’s anus while he had his penis in

her vagina. During this interaction, C.P. suffered a burn to her knee from the center console.

¶ 15 C.P. did not consent to any of these acts. Garcia repeatedly threatened to kill her and told

her he had a gun. Garcia climbed on top of her in the front passenger seat again, and again

inserted his penis into her vagina. Garcia again ejaculated inside her vagina and onto the outside

of her vagina and inner legs.

¶ 16 Garcia then began looking through the car for money. C.P. told him that she did not have

any money but led him to Chase bank in Orland Park near her home. As he drove, Garcia played

with C.P.’s hair and rubbed her shoulders, assuring her everything was going to be okay. He told

C.P. about his life, his daughter, and his deceased mother. C.P. continued to tell Garcia about her

son, so that maybe Garcia would see that she was “human as a mother[,] as someone who wanted

to go home alive.” When they arrived at the bank, Garcia asked for C.P.’s debit card. After

telling Garcia that she needed the money for rent, C.P. gave Garcia her debit card. Garcia

withdrew $200 and handed C.P. $40 afterward, telling her that “if [she] helped him he will help

[her].”

¶ 17 Garcia then drove C.P. home and said he would come back the next day. Garcia had

taken C.P.’s cell phone from her earlier in the night. In order to get her cell phone back, C.P.

asked him how she would get ahold of him the next day. Garcia programmed his phone number

into C.P.’s cell phone and gave it back to her. C.P. ran into her house.

¶ 18 C.P. woke up her sister Polly. Polly noted that C.P. was disheveled, had marks on her

face and neck, and “her clothes were all torn off her.” C.P. appeared “scared” and “in shock” and

told her sister that she had been raped. Polly called 911, and C.P. spoke to the police. C.P. was

transported to Palos Hospital, where she submitted to a sexual assault kit. C.P.’s shorts with the

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crotch torn out were admitted into evidence, as was the recording of the 911 call.

¶ 19 The nurse and doctor who treated C.P. in the emergency department testified that C.P.

was crying and her makeup was “smeared all down her face and she was just very anxious.” C.P.

relayed the details of her time with Garcia in the car, including his repeated sexual assaults. The

nurse documented C.P.’s statements. She also noted injuries to C.P.’s body, including a “bruising

hematoma on her forehead.” She further noted that C.P.’s shorts were ripped, and a sexual

assault kit was conducted. C.P.’s blood sample, head and pubic hair combings, as well as oral,

anal, and vaginal swabs were collected over the course of an approximately two-hour long

process.

¶ 20 The doctor testified that C.P. had an injury to her forehead that was consistent with being

punched and identified injuries in several photographs, taken in the days following the attack, as

being consistent with the actions C.P. had reported. These photographs showed marks on C.P.’s

face and neck, indicating possible punches and strangulation, and an acute injury to her knee.

The doctor also opined that C.P.’s broken fingernails could be consistent with blocking punches.

He did not note any injuries to her vagina or anus but testified that it is not unusual that a sexual

assault victim would not have physical injuries to those areas, as they have “accommodation and

flexibility and elasticity that does allow it to take you know some degree of trauma.” A urinalysis

showed “trace blood” in her urine, which “means that there was evidence of red blood cells in

the urinalysis from her bladder or urethral track[,] which can result possibly from trauma or any

other number of things.” C.P. was prescribed medications to minimize the risk of her contracting

any sexually transmitted diseases or HIV and was educated as to an option she could seek to

prevent pregnancy.

¶ 21 At approximately 4:15 a.m., on October 3, 2014, Garcia was pulled over driving C.P.’s

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car a half a mile from her house. An evidence technician recovered a broken fingernail located

on the right front side floor and observed white stains on the back of the passenger seat. No

weapons were found. C.P. identified Garcia in a lineup later that day.

¶ 22 When Garcia drove out of the gas station with C.P., John Castilla’s phone was in the car.

John learned what happened to C.P. from a mutual friend and went to the police station, where

he spoke with detectives who returned his cell phone. John’s phone verified the purchases he

made at the gas pump and in the gas station store that night, as his credit card company sent him

text messages every time he used his credit card.

¶ 23 Chicago Police Detective Mona Majeed testified that none of the cameras at the gas

station that would have captured the relevant areas of the crime were recording at the time of the

crime, and the video from Chase bank was not available. She also testified that the phone number

that Garcia had entered into C.P.’s phone was likely a “pay-as-you-go type phone,” with no

subscriber or service provider information available.

¶ 24 Detective Majeed and her partner, Detective Aileen O’Grady, interviewed Garcia after

his arrest. Garcia consented to provide a DNA sample, and a buccal swab was taken. A lineup

was conducted wherein C.P. identified Garcia as the person who kidnapped her, sexually

assaulted her, and took her car. Forensic testing from samples gathered for the sexual assault kit

revealed that “semen was identified on the vaginal, anus and oral swabs.” DNA analysis showed

that Garcia’s DNA was on the vaginal and anal swabs, and he could not be excluded from the

oral swabs.

¶ 25 The State rested. Garcia indicated that he wished to testify. The State renewed its motion

in limine to bar Garcia from testifying “that he’s taking any type of medication, has any type of

mental health history or anything like that, that the State has—and the State has not been

7 1-17-2005

tendered any information of such.” The motion was granted with no objection from the defense.

¶ 26 Garcia testified that, in the early morning hours of October 3, 2014, he was walking in

the area of Irving Park Road and Elston Avenues in Chicago, when C.P. pulled up in her silver

car and said “hello” and asked “how are you doing?” Garcia denied having a gun or forcing his

way into the car. Garcia testified that after he got into C.P.’s car, she drove “[u]p Elston”

“[t]owards Pulaski Road, stopped the car to smoke, and “kind of start[ed] touching [him].”

According to Garcia, they “had intercourse,” and he did not force himself on her. The intercourse

lasted for “[n]o more than, like, ten minutes,” and “[a]fter that, [they] were done.”

¶ 27 C.P. then jumped into the passenger seat and Garcia started driving because “[s]he was

intoxicated.” Garcia drove her home, stopping first at a Chase bank, where she used the ATM

and withdrew $200. Garcia dropped her off and she programed his phone number into her phone.

He never told her his name, but she told him her name. After dropping her off, he went to the gas

station no more than 10 minutes from her house. Garcia denied having a weapon or punching

C.P. and stated they were together no more than an hour and had “more than one variety of a

type of sex.”

¶ 28 On cross examination, Garcia testified that he met C.P. at a party in 2013. According to

Garcia, when C.P. approached him in her car at Irving Park and Elston, she told him to get in,

which he did, but did not know why. Garcia testified that he was coming from the funeral of a

“good friend,” but could not remember his friend’s first name. He testified his friend dropped

him off in the area of “Irving and Pulaski,” although it was in the complete opposite direction of

his home on the west side of Humboldt Park. He was “surpris[ed]” that C.P. “just appeared on

the north side of the city on this random day,” because he knew she lived in the south suburbs.

¶ 29 Garcia further testified that after C.P. ordered him to get in, she drove to an unknown side

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street, stopped, smoked “[s]ome weed” (but Garcia did not), and “[t]hen [they] had intercourse.”

Garcia admitted that he had vaginal intercourse with C.P. in the passenger seat and that she had

climbed on top of him, but denied having any other form of sexual intercourse with C.P. Later,

however, he acknowledged that he put his penis in C.P.’s mouth, claiming she grabbed his penis

when he was driving her home. He denied ejaculating and said he told her to stop because he was

driving, and so she stopped and fell asleep on his arm. Garcia also denied putting his fingers in

C.P.’s anus, and stated he only put his penis in her vagina one time. Garcia repeatedly claimed

that he did not want to have sex with C.P. that night, and although she did not “technically” rape

him, “she did force herself on top of [him]” and forced his penis into her vagina and her mouth.

¶ 30 According to Garcia, it was C.P.’s idea to stop at the bank, and she was the one who

withdrew $200 from the ATM and gave him $40 to get gas. Also, according to Garcia, C.P.

ripped her own shorts before they had sex. Garcia denied knowing how her fingernails had

broken. He also denied seeing any red marks on C.P.’s neck in the State’s exhibits and did not

know how C.P. injured her knee as shown in the photos. Garcia conceded that it was a good

night for him—he had sex with a pretty woman, she gave him money afterwards, and she then

gave him her car and a spare set of keys.

¶ 31 Garcia conceded that after he was stopped by the police, he told the detectives that he

was driving his girlfriend’s car but denied being unable to tell them his girlfriend’s name. He

admitted he initially told the detectives he and C.P. had only kissed, but denied admitting they

had sex only after the detectives told him of the likelihood of finding his DNA on C.P. He also

denied telling the detectives that “if [he] wanted, [he] could have left [C.P.] in a ditch.”

¶ 32 Detective Majeed testified in rebuttal that Garcia told her that he was driving his

girlfriend’s car, but could not remember her name, and that he and C.P. only kissed. She testified

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that, after explaining that his DNA would likely be found on the victim or at the crime scene,

Garcia changed his story and stated the woman had given him oral sex. He told the detectives

that he put his number in her phone, and that “if [he] wanted, [he] could have left her in a ditch.”

¶ 33 Following closing arguments, the jury found Garcia guilty of all three counts of

aggravated criminal sexual assault and one count of aggravated kidnapping. Prior to sentencing,

defense counsel filed a motion for new trial, alleging, in pertinent part, that “[s]ometime within

the last month, [counsel] discovered evidence that Garcia has an intelligence quotient of 70 (mild

mental retardation), suffers from bipolar disorder, and has memory issues.” He asserted that

Garcia’s relatives happened upon the evidence while going through the family’s storage boxes.

He argued that Garcia was entitled to a new trial because this “newly discovered evidence,” if

discovered prior to trial, would have changed the outcome of the trial by explaining why Garcia

had memory lapses and providing a viable insanity defense. Defense counsel attached the

following to the motion: a release of health information from Advocate Health Care, signed by

Garcia July 7, 2007; a letter to Garcia from Advocate Behavior Health Center, indicating Garcia

had an out-patient intake appointment on July 11, 2007; a decision of a Social Security Disability

Hearing officer (SSR), dated February 22, 2006; a social work treatment summary from January

2004; and a Chicago Public School Report of a Psychological Evaluation from April 23, 2003.

¶ 34 The 2003 psychological evaluation, performed when Garcia was 16 years old, showed

that Garcia had been placed in a therapeutic day school due to “aggressive and assaultive

behaviors” and that he was in counseling and speech/language services. He had no attention or

concentration difficulties during the evaluation, but his response style was “impulsive.” It was

also noted that Garcia’s “cognitive ability [wa]s within the borderline range” and his

“inappropriate behave/feelings” score was borderline.

10 1-17-2005

¶ 35 The January 2004 social work treatment summary indicated that, in spring of 2002,

Garcia had been “arrested and charged with attempted murder, and possession of a weapon,” and

was placed on probation. Garcia tested positive for drugs while on probation and attended a drug

rehabilitation center. After he was released from probation, Garcia was charged with possession

of an illegal substance. Garcia was impulsive, often yelling out for no reason; disrespectful; and

verbally aggressive. Treatment goals included anger management, helping him take

responsibility for his own actions, and impulse control.

¶ 36 The SSR indicated that Garcia began receiving benefits when he was 13 years old due to

learning disabilities and speech and language delays. His benefits were terminated when he

turned 18 because he failed to provide necessary documentation. The termination was later

reviewed, based on Garcia’s allegation that he had adult disability due to “Learning Disability

and [ADHD],” with Garcia and his mother providing testimony, a psychiatric evaluation dated

November 2005, and his school individualized education program (IEP) from 2005.

¶ 37 The 2005 IEP showed that at 18 years old, Garcia was receiving services for a learning

disability and emotional behavior problems. He required adult supervision for all nonacademic

and extra-curricular activities, as he often “provoke[d] peers and f[e]d into negative behavior.”

He was disrespectful toward authority figures when he was frustrated or angry. He had attention

seeking behavior and often got frustrated by his low academic achievement and inability to

express himself. A 2005 psychiatric evaluation showed an IQ of 70, in “the lower half of the

borderline range of intellectual functioning.”

¶ 38 Garcia, who was 19 at the time of the termination of disability benefits hearing, testified

that his behavior was “fine,” he had no trouble with the law, and was not involved with gangs or

drugs or alcohol. The hearing officer found that Garcia “testified very well on his own behalf. He

11 1-17-2005

did not have a problem comprehending any questions directed to him. He had a very good

memory about basketball scores or different players *** he loves the sport.” In finding Garcia

disabled, the hearing officer noted that Garcia had been diagnosed with “Severe learning

Disorder and a history of Severe Conduct Disorder[,] *** [ADHD] and Speech and Language

Delays.” The hearing officer further noted the limitations on Garcia’s cognitive and social

interaction skills, where Garcia gets “frustrated,” can be “disrespectful to authority figures,” has

limitations on his ability to interact appropriately with co-workers and the general public, and

exhibits “impulsive behavior and low self-esteem.” The hearing officer reinstated Garcia’s social

security benefits, based on the adult criteria for disability.

¶ 39 At the hearing on Garcia’s motion for new trial, defense counsel stated that these

documents could not have been discovered sooner because he came on the case “somewhat late

in the game,” Garcia’s mother is deceased, and Garcia does not have a relationship with his

father. Defense counsel pointed out that the documents showed Garcia “has an IQ of 70,”

meaning Garcia is “developmentally disabled but borderline or mildly retarded,” and argued that

Garcia has “bipolar or schizophrenia,” as Garcia self-reported to the investigator who prepared

his presentence investigation report (PSI). Counsel further stated that the documents show Garcia

“has memory issues, a specific disorder and a primary grade academic level.” Counsel argued

that had he known about these issues sooner, he could have presented the case differently and

could have explained to the jury Garcia’s “speech and his ability to remember specific details.”

¶ 40 Counsel conceded that Garcia had told him he was receiving social security disability

benefits prior to trial and acknowledged that he had so informed the court prior to trial. Counsel

also admitted that he was aware of Garcia’s “bipolar or schizophrenia condition” prior to trial

and was aware of the BCX before he filed his appearance. Nevertheless, counsel argued that

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Garcia was entitled to a new trial.

¶ 41 The State argued that the documents provided by Garcia showed that Garcia “had a

learning disability and an attention deficit disorder, not a mental illness,” and that Garcia had

“not provided any evidence that he suffered from bipolar disorder, a mental disorder, or anything

else that would entitle him to a new trial.” The State referenced the BCX done in relation to this

case wherein Garcia was found to be legally sane at the time of the offense, with the psychologist

determining that “Garcia was not manifesting symptoms of a mental disease or defect which

would have caused him to lack substantial capacity to appreciate the criminality of his conduct.”

The psychologist rendered this decision after reviewing Garcia’s medical records from Cermak

Hospital (the hospital at the jail where he was detained), wherein Garcia denied any symptoms of

psychosis or mania and where the Cermak psychiatrist believed Garcia was exaggerating

symptoms and “manipulating his conditions” in an attempt to help his case.

¶ 42 In reply, defense counsel conceded that his “client did not get medical treatment. Perhaps

he should have,” and reiterated that the PSI states that Garcia self-reports that “he’s bipolar and

schizophrenic.” Counsel again argued that Garcia’s mental illness could explain some of his

memory loss issues at trial, like not remembering his good friend’s name who had passed away.

The court denied Garcia’s motion for new trial, and the parties proceeded to sentencing.

¶ 43 The PSI reflected that Garcia had been adjudicated delinquent in 2002 for unlawful

possession of a weapon (at sentencing, the prosecutor indicated that Garcia was in possession of

ammunition), in 2003 for possession of a controlled substance, and in 2004 for possession of a

controlled substance. He was convicted of delivery of cannabis in 2014, for which he received

conditional discharge and had a pending possession of cannabis case. Contrary to the January

2004 social work treatment summary, the PSI did not indicate that Garcia had ever been

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“arrested and charged with attempted murder.”

¶ 44 Garcia reported that he was raised by his mother, a school nurse; had a “good” childhood;

and was close with his siblings. He graduated from an alternative high school, where he was a

“good” student and had received Social Security benefits for 15 years due to a disability. He

reported that he joined the Maniac Latin Disciple street gang when he was 10 years old, and he

“called the shots [as] a well-known leader,” although counsel verbally indicated that Garcia

denied he ever made those statements to the investigator. Garcia stated that he had been

diagnosed with bipolar disorder and schizophrenia 20 years prior but had not participated in

treatment for the past 5 years.

¶ 45 The court sentenced Garcia to 25 years on each count of the four counts for which he was

convicted, to run consecutively to each other, for a total of 100 years. Garcia did not file a

motion to reconsider the court’s sentence. Garcia now appeals.

¶ 46 II. ANALYSIS

¶ 47 A. Denial of Motion for New Trial

¶ 48 Garcia argues that the trial court abused its discretion when it denied his motion for new

trial based on newly discovered evidence of his cognitive and social impairments because it

“effectively barred him from presenting a complete defense” where these conditions reflected on

his credibility, which was a central issue in the case. Alternatively, Garcia asserts he received

ineffective assistance of counsel when counsel failed to discover the evidence of his cognitive

and social impairments before trial and failed to take full advantage of it posttrial. Finally, Garcia

asserts that his sentence of 100 years’ imprisonment was excessive under several legal theories.

¶ 49 To warrant a new trial based on newly discovered evidence, the evidence must (1) have

been discovered since the trial, (2) must be of such a character that it could not have been

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discovered prior to trial with the exercise of due diligence, (3) must be material to the issue and

not merely cumulative, and (4) must be of such a conclusive character that it will likely change

the result on retrial. People v. Gabriel, 398 Ill. App. 3d 332, 350 (2010). “Generally, evidence is

not ‘newly discovered’ when it presents facts already known to the defendant at or prior to trial,

though the source of those facts may have been unknown, unavailable, or uncooperative.” People

v. Barnslater, 373 Ill. App. 3d 512, 523-24 (2007). The trial court’s denial of a motion for a new

trial based on newly discovered evidence will be reversed on appeal if the trial court abused its

discretion. People v. Villareal, 201 Ill. App. 3d 223, 229 (1990).

¶ 50 The evidence that Garcia claims to be “newly discovered” was known to Garcia prior to

trial. The documents he sought to admit were regarding his schooling, assessments he underwent,

and diagnoses rendered that affected his schooling and upbringing and resulted in an award of

Social Security benefits after hearings at which he testified. Moreover, the record establishes that

Garcia informed his attorneys of possible mental health issues and that he received Social

Security disability benefits. This information prompted Garcia’s attorneys to request a BCX prior

to trial. Prior to jury selection, counsel stated that Garcia was bipolar and had been receiving

Social Security benefit payments. Then again, during the hearing on Garcia’s posttrial motion,

counsel conceded that Garcia told him he was receiving social security disability benefits prior to

trial, and that he was also aware of the BCX conducted on Garcia earlier in the proceedings and

Garcia’s claim that he had “a bipolar or schizophrenia condition.”

¶ 51 Here, the record clearly establishes that Garcia’s counsel was acutely aware that Garcia

had reported suffering from mental health issues in the past and that Garcia had been receiving

Social Security disability payments. Any supporting documents cannot be considered newly

discovered even if Garcia did not know where they were stored. Garcia’s alleged inability to

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locate the box where they were stored does not make the information contained therein

“unknown [or] unavailable.” Barnslater, 373 Ill. App. 3d at 523. Moreover, Garcia’s vague

assertion that his relatives came across the documents while going through some boxes, without

more, does nothing to support his position that the documents were unknown or unavailable. As

such, Garcia has wholly failed to meet his burden to establish that the documents were not

known to him or could not have been discovered through due diligence, and the trial court

properly denied his motion for new trial on this basis.

¶ 52 Furthermore, this documentation is not of such conclusive character that it would likely

change the result on retrial. It was known to Garcia’s counsel and to the court prior to trial that

Garcia claimed to suffer from mental health issues and that he was receiving Social Security

payments, which precipitated the BCX exam in this case. Garcia had a mental health evaluation

during his BCX, which occurred prior to trial between 2014 and 2015. While the documents that

Garcia sought to admit for consideration tended to show that he had suffered from mental illness

in the past, that information was already known. None of the information contained therein had

any direct effect on the physical evidence that established Garcia’s guilt in this case, especially

where Garcia was found to be legally sane at the time of the offense. We cannot say that these

documents would change the result on retrial.

¶ 53 B. Ineffective Assistance of Counsel

¶ 54 Alternatively, Garcia argues that his counsel was ineffective when he failed to discover

the evidence before trial and take full advantage of it posttrial. Garcia argues that evidence of his

“borderline intellectual functioning and other cognitive/social impairments was material and not

cumulative” because his entire defense at trial consisted of his testimony, so his credibility

became the crucial issue in the trial. Garcia blames the inconsistencies in his testimony on his

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low IQ and his social impairments and asserts that “the new evidence would have countered

these impressions and strengthened [his] credibility.”

¶ 55 We analyze a claim of ineffective assistance of counsel under the Strickland standard.

See Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective

assistance of counsel, a defendant must show both that (1) counsel’s representation fell below an

objective standard of reasonableness and (2) counsel’s substandard representation so prejudiced

the defense as to deny defendant a fair trial. Id. at 687-88. To demonstrate prejudice, a defendant

must show there is a reasonable probability that “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. If defendant’s claim can be

disposed of on the basis that defendant did not suffer sufficient prejudice, the court does not need

to determine whether counsel’s performance amounted to less than reasonably effective

assistance. People v. Eddmonds, 143 Ill. 2d 501, 512 (1991).

¶ 56 The decision regarding what evidence to present is a strategic one. People v. Wilborn,

2011 IL App (1st) 092802, ¶ 79. However, “[a]ttorneys have an obligation to explore all readily

available sources of evidence that might benefit their clients.” People v. Morris, 335 Ill. App. 3d

70, 79 (2002). To this end, counsel has “a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at

691. Garcia suffered no prejudice because of counsel’s failure to discover the evidence prior to

trial and take full advantage of it posttrial because the evidence of Garcia’s guilt was

overwhelming. In addition, as stated earlier, Garcia and his family were aware that these

documents existed prior to trial. Moreover, Garcia’s argument that the subject documents would

have affected the jury’s perception of his credibility is purely speculative, particularly when

Garcia had been given a BCX weeks before trial and was found to be legally sane at the time of

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the offense. Furthermore, evidence of a defendant’s mental health is admissible at trial in Illinois

for the very limited purpose of explaining a defendant’s mental state at the time of an offense if

the affirmative defense of insanity is filed pursuant to section 6-2 of the Criminal Code of 2012

(720 ILCS 5/6-2 (West 2018)). Garcia did not present an insanity defense in this case. Moreover,

counsel attempted to have the evidence admitted posttrial. The trial court did not allow the

evidence to be admitted. We cannot say that Garcia suffered prejudice from counsel’s alleged

failures.

¶ 57 C. Sentencing Issues

¶ 58 We turn now to Garcia’s sentence. Garcia contends that because he has an intellectual

disability, his 100-year sentence violates the eighth amendment of the United States Constitution

and the Illinois Constitution’s proportionate penalties clause. He also argues that his sentence is

excessive on three separate grounds. First, he contends that he was penalized for exercising his

constitutional right to trial where the circuit court, despite having recommended a term of 36

years at a plea bargain conference, sentenced him to 100 years’ imprisonment after he was

convicted. Second, he contends that the circuit court abused its discretion by failing to consider

his undisputed intellectual disability. Third, he contends that the circuit court abused its

discretion by failing to account for his prospect of rehabilitation. We reject Garcia’s claim that

his sentence violates the eighth amendment of the United States Constitution and proportionate

penalties clause of the Illinois Constitution but agree that his sentence is excessive for each of the

three separate reasons he advances. Therefore, for the reasons that follow, we vacate Garcia’s

sentence and remand for a new sentencing hearing.

¶ 59 In ordering a new sentencing hearing, we do not seek to deprecate the heinousness of

Garcia’s offenses. Nor do we intend to downplay the trauma that C.P. was subjected to, the pain

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that she still faces, and the harm that she will continue to face because of Garcia’s actions. We

have read C.P.’s victim impact statement and the testimony that C.P. gave at the sentencing

hearing. As C.P. aptly put it, what Garcia did to her was “wrong[,] heinous [, and] malicious on

every level.” Garcia deserves a substantial sentence for his offenses, which the circuit court will

determine on remand subject to our decision and reasoning herein.

¶ 60 Before reaching the merits of Garcia’s sentencing error claims, we must address the

State’s argument that Garcia forfeited the challenges to his sentence by failing to raise the

sentencing issues in his posttrial motion. Garcia acknowledges the forfeiture in his reply brief but

urges us to consider his sentencing claims as plain error.

¶ 61 To preserve a claim of sentencing error, the defendant must make a contemporaneous

objection and raise the issue in a postsentencing motion. People v. Hillier, 237 Ill. 2d 539, 544

(2010). The plain error doctrine permits a reviewing court to consider unpreserved error when

(1) the evidence is close, regardless of the seriousness of the error or (2) the error is serious,

regardless of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 186-87 (2005). In

the context of a sentencing hearing, a defendant must show that an error occurred and either

(1) the evidence at the hearing was closely balanced or (2) the error was so egregious that it

denied the defendant a fair hearing. Hillier, 237 Ill. 2d at 545. The first step in plain error review

is to determine whether an error occurred. See People v. Hood, 2016 IL 118581, ¶ 18 (without

error, there can be no plain error). A defendant has the burden to establish plain error. See People

v. Thompson, 238 Ill. 2d 598, 613 (2010).

¶ 62 1. Eighth Amendment and Proportionate Penalties Claim

¶ 63 With respect to his first claim of sentencing error, relying on People v. Coty, 2018 IL

App (1st) 162383, Garcia claims that due to his intellectual disability, his sentence violates the

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eighth amendment of the United States Constitution and the Illinois Constitution’s proportionate

penalties clause. In Coty, we held that an intellectually disabled defendant’s discretionary life

term violated the proportionate penalties clause. Id. ¶ 86. In so holding, we extended the

protections announced in Miller v. Alabama, 567 U.S. 460 (2012), to intellectually disabled

adults and looked to the “evolving standard[s] of decency” that led the law to bar de jure and

de facto mandatory or discretionary life terms for minors “where procedurally the court fails to

consider the attendant characteristics of youth.” Coty, 2018 IL App (1st) 162383, ¶¶ 61-68

(summarizing eighth amendment and proportionate penalties cases).

¶ 64 To the extent that Garcia relies on his intellectual disabilities to support his claim of

sentencing error, our supreme court foreclosed this argument in People v. Coty, 2020 IL 123972,

overruling this court’s decision in Coty, 2018 IL App (1st) 162383. Our supreme court held that

“the Miller Court’s decision is founded, principally, upon the transient characteristics of youth,

characteristics not shared by adults who are intellectually disabled” (emphasis omitted) (Coty,

2020 IL 123972, ¶ 39), and observed, “unlike a juvenile, whose mental development and

maturation will eventually increase that [rehabilitative] potential, the same cannot generally be

said of the intellectually disabled over time” (id. ¶ 37). “The rehabilitative prospects of youth do

not figure into the sentencing calculus” for an intellectually disabled adult defendant. Id. ¶ 40.

The court concluded that the intellectually disabled defendant’s initial mandatory natural life

sentence was not unconstitutional as applied to him. Id. ¶ 42. As the Coty court observed,

“[c]ourts across the country that have addressed the issue *** have declined to extend Atkins [v.

Virginia, 536 U.S. 304 (2002),] to noncapital sentences or Miller to the intellectually disabled.”

(Internal quotation marks omitted.) Id. ¶ 45. In accordance with our supreme court’s decision in

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Coty, Garcia’s sentence is not unconstitutional because he is intellectually disabled. Therefore,

no error occurred here, and plain error analysis is not necessary.

¶ 65 2. Excessive Sentence—Trial Penalty

¶ 66 Garcia next contends that he was penalized for exercising his constitutional right to trial

where the circuit court, despite having recommended a term of 36 years at a plea bargain

conference, sentenced him to 100 years’ imprisonment after he was convicted. Garcia claims this

sentence amounts to error. We agree.

¶ 67 A trial court has broad discretionary powers in choosing the appropriate sentence a

defendant should receive. People v. Jones, 168 Ill. 2d 367, 373 (1995). A reasoned judgment as

to the proper sentence to be imposed must be based upon the particular circumstances of each

individual case and depends upon many factors, including the defendant’s credibility, demeanor,

general moral character, mentality, social environment, habits, and age. People v. Perruquet, 68

Ill. 2d 149, 154 (1977). “In determining an appropriate sentence, the defendant’s history,

character, rehabilitative potential, the seriousness of the offense, the need to protect society and

the need for deterrence and punishment must be equally weighed.” People v. Jones, 295 Ill. App.

3d 444, 455 (1998). The potential for rehabilitation need not be given any greater weight than the

seriousness of the offense. People v. Sharpe, 216 Ill. 2d 481, 525 (2005). There is a strong

presumption that the trial court based its sentencing determination on proper legal reasoning, and

the court is presumed to have considered any evidence in mitigation that is before it. People v.

Partin, 156 Ill. App. 3d 365, 373 (1987). The imposition of a sentence is a matter within the trial

court’s discretion, and a reviewing court has the power to disturb the sentence only if the trial

court abused its discretion. Jones, 168 Ill. 2d at 373-74.

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¶ 68 Garcia was convicted of three counts of aggravated criminal sexual assault and one count

of aggravated kidnapping, all Class X felonies. Each of the four counts is punishable by a

sentencing term of 6 to 30 years (720 ILCS 5/11-1.30, 10-2 (West 2018)), and the sentences

imposed on each count are required to run consecutively (730 ILCS 5/5-8-4(d) (West 2018)).

The PSI reflected that Garcia had been adjudicated delinquent in 2002 for unlawful possession of

a weapon (ammunition according to the State); in 2003 for possession of a controlled substance;

and in 2004 for possession of a controlled substance. As an adult, he was convicted of delivery

of cannabis in 2014, for which he received conditional discharge, and had a pending possession

of cannabis case. At sentencing, the State sought a de facto life term: “[Garcia] should be given a

sentence that forces him to remain in prison the rest of his life and to ensure that he will never

walk our city streets again.”

¶ 69 The circuit court found that Garcia’s crimes were “horrendous,” “bel[ie] humanity,” and

stripped the victim of her “dignity and humanity.” The court further found that Garcia’s

testimony was “absurd,” a “work of fiction,” and belied “all believability and strains the limits of

credibility.” The court also stated that Garcia had engaged in “horrendous conduct and complete

disrespect for another human being’s life, a person you never knew until you forced yourself on

her.” In addition, the circuit court stated that C.P. was a “hero” in that she saved her life “because

of the way she conducted herself during this horrific episode of her life just because she wanted

to get home to her son.” These findings are well supported by the evidence.

¶ 70 Garcia must serve at least 85% of his 100-year sentence. 730 ILCS 5/5-8-4(g)(4), 3-6-

3(a)(2)(ii) (West 2018). After credit for time served, the earliest Garcia will be released is when

he is 112 years old, effectively making his sentence a de facto life term, just as the State

requested. Of course, Garcia’s 100-year sentence falls within the applicable aggregate sentencing

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range of 24 to 120 years, and we acknowledge this sentence is generally presumptively proper.

Nevertheless, even a sentence within the range prescribed by the legislature can amount to an

abuse of discretion if it is “greatly at variance with the spirit and purpose of the law or manifestly

disproportionate to the nature of the offense.” People v. Fern, 189 Ill. 2d 48, 54 (1999).

¶ 71 At the outset, we address the State’s overarching argument that the de facto life sentence

rubric is not applicable to Garcia because he is an adult. Garcia’s point, however, is more

elementary—he will spend the rest of his life in prison. Recently, in People v. Wilson, 2022 IL

App (1st) 192048, ¶¶ 84, 95, 102, this court remanded for an evidentiary hearing on the

defendant’s claim that his 65-year sentence, imposed for a crime committed when he was 19

years old, was a de facto life sentence and violated the proportionate penalties clause of the

Illinois Constitution. In so doing, this court noted that in People v. Buffer, 2019 IL 122327, ¶ 41,

our supreme court identified a sentence over 40 years as a de facto life sentence for a juvenile.

Wilson, 2022 IL App (1st) 192048, ¶ 95. As here, the State argued that Buffer “ ‘was only

focused on juveniles,’ ” so a sentence of over 40 years for an older defendant was not necessarily

a de facto life sentence for older defendants. Id. But this court rejected that argument: “[W]e fail

to see why that line would be drawn at anything beyond the 40 years established in Buffer.”

(Emphasis in original.) Id. After all, an older defendant “will reach his anticipated life

expectancy sooner, not later, than a juvenile offender.” Id. Likewise, because Garcia will not be

eligible for parole until 2099, when he would be 112 years old, Garcia is serving the “functional

equivalent” of natural life. See People v. Morris, 2017 IL App (1st) 141117, ¶ 30 (aggregate 100-

year term was a de facto life sentence where defendant would not be eligible for parole until he

was 109). To be clear, we make this point only to confirm the obvious—Garcia’s 100-year

sentence means that he will spend the rest of his life in prison.

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¶ 72 Garcia asserts that he was penalized for exercising his constitutional right to trial instead

of accepting the 40-year term offered by the State or 36-year term recommended by the circuit

court at the Illinois Supreme Court Rule 402 (eff. July 1, 2012) plea bargain conference. He

couches this argument as both a constitutional claim and as an abuse of discretion. For support,

he points to the large plea-trial sentencing disparity. The State responds that a plea-trial

sentencing disparity, standing alone, does not taint a sentence because it is well established that a

trial court has discretion to impose a longer sentence after trial than what it would have imposed

in exchange for a guilty plea. See People v. Morgan, 59 Ill. 2d 276, 281 (1974) (disparity “does

not, standing alone, taint the sentence”). In addition, the State argues that other than the plea-trial

sentencing disparity, Garcia cannot point to any explicit evidence that the circuit court punished

him for exercising his right to trial. In reply, Garcia points to numerous examples of what he

claims is the circuit court expressing its frustrations with, and animosity towards, his trial

counsel, Frank Avila.

¶ 73 The United States and Illinois Constitutions grant an accused the right to be tried. U.S.

Const., amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury ***.”); Ill. Const. 1970, art. I, § 8 (“In criminal

prosecutions, the accused shall have the right *** to have a speedy public trial by an impartial

jury ***.”). “Although it may be proper in imposing sentence to grant concessions to a defendant

who enters a plea of guilty, a court may not penalize a defendant for asserting his right to a trial

either by the court or by a jury.” People v. Ward, 113 Ill. 2d 516, 526 (1986). In other words,

while a mere disparity between the sentence offered during plea bargaining and that ultimately

imposed, of itself, does not warrant a reviewing court using its power to reduce a term of

imprisonment, it is unconstitutional for a trial judge to punish a defendant merely for exercising

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his right to a jury trial. People v. Dennis, 28 Ill. App. 3d 74, 77-78 (1975). Besides overt

comments of the trial court to the effect that the sentence imposed was punishment for a

defendant’s trial demand, we have also recognized that a constitutional deprivation of this nature

may be shown inferentially. Id. at 78. “[A] ‘reasonable inference’ of a constitutional deprivation

may be drawn where a great disparity exists between the sentence offered at a pretrial conference

to which the trial judge was a participant and one imposed at the conclusion of a jury trial.” Id. In

Dennis, the court found error where the sentence offered in exchange for a guilty plea was 2 to 6

years, but the sentence imposed after trial was 40 to 80 years. Id.

¶ 74 Here, the sentencing judge presided over the plea bargain conference. As is common

practice, however, there is no record of the Rule 402 conference, and we do not know the precise

details of what was shared with the circuit court. Nevertheless, the State does not dispute that, at

the Rule 402 conference, the circuit court was advised of the essential facts that the State

intended to establish at trial. As the State recounts in its brief, “[w]hat [the record] does show is

that by choosing to go to trial, [Garcia] permitted the court to hear significant details of

[Garcia’s] egregious behavior and to observe the damage it inflicted upon [the victim] firsthand,

rather than just hearing it in a conference room from the prosecutor.” (Emphasis added.)

Moreover, the record shows that the circuit court was also advised of the essential facts at a

hearing on Garcia’s motion to reconsider bond. There, the State recounted that Garcia entered the

victim’s car at a gas station, told her that he was armed and worked for the cartel, and said that

he was sent to kill her date. The State explained that Garcia punched the screaming victim as he

drove her to an unfamiliar location, where he then ripped off the victim’s shorts, raped her

vaginally without a condom, forced her to perform oral sex on him, and vaginally raped her

again while inserting his fingers in her anus, all the while saying vulgar and vile things to her.

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The State further described Garcia strangling and striking the victim throughout the attack and

the victim’s continued crying. The State then told the court that Garcia drove the victim to her

south suburban bank, where he forced her to withdraw money and give it to him, and that he then

dropped the victim off at her home, placing his cell phone number in her phone and leaving with

her car. The State advised the court that a rape kit yielded semen samples that were forensically

analyzed and matched to Garcia’s DNA profile. The court was also told that Garcia was arrested

while in possession of a cell phone that had been stolen from a robbery victim an hour before the

kidnapping and sexual assault of the victim here. The State provided the court with Garcia’s

juvenile and adult criminal history and did so again during a subsequent hearing on Garcia’s

motion to reconsider bond the following month.

¶ 75 It was after all of these hearings had occurred that the parties agreed to a plea conference

with the judge. During the conference, the State offered Garcia a term of 40 years in exchange

for his plea of guilty. The circuit court recommended a term of 36 years, or 9 years for each of

the four counts, which we understand are the same four counts that were tried. The circuit court

explained to Garcia that he could receive a prison term of up to 120 years if he was convicted on

all four counts. Garcia rejected the plea bargain offer in favor of trial.

¶ 76 A sentencing court should give proper consideration for a prior plea offer when

determining punishment after trial. See People v. Scott, 256 Ill. App. 3d 844, 855 (1993) (“[T]he

trial judge offered a sentence of 10 years if defendant would plead guilty. There is no

explanation as to why the sentence was tripled when defendant was found guilty after choosing

to go to trial. While it is not proper for the reviewing court to substitute its own judgment for that

of the trial court absent an abuse of discretion [citation], such an abuse would be found if it were

to be shown that the enhanced sentence was in retaliation for rejecting a plea offer.

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Consequently, if the new trial results in a guilty verdict, the sentencing judge should give proper

consideration to the previous sentencing offer, even if he is a different judge who did not

participate in the prior plea offer.”). In order to preserve public confidence in the judicial

process, a number of states have adopted American Bar Association (ABA) Standard No. 14-

1.8(b), which states that a defendant should not be punished for exercising his constitutional right

to trial. Standards for Criminal Justice No. 14-1.8(b) (Am. Bar Ass’n 3d ed. 1999). Under this

approach, to allow for judicial review of a sentence when the sentencing court was involved in

the plea-bargaining process and imposes a harsher sentence after trial than was offered in

exchange for a guilty plea, the sentencing court must specifically point out the factors that justify

the increased sentence. See e.g., State v. Baldwin, 629 P.2d 222, 224-26 (Mont. 1981) (adopting

ABA Standards for Criminal Justice No. 14-1.8(b) (Am. Bar Ass’n 2d ed. 1980) and remanding

case because “[w]e have no assurance that the trial court did not increase the sentence in

retaliation for defendant’s insistence on a trial by jury”); see also Wilson v. State, 845 So. 2d 142,

157 (Fla. 2003) (“[A] judge who, having been advised of the details of the case and having been

actively involved in an unsuccessful plea bargaining discussion, wishes to impose a post-trial

sentence more severe than that contemplated by his or her plea negotiations, would be wise to

explain his or her reasons for the greater sentence in order to dispel any appearance of vindictive

sentencing.” (Internal quotation marks omitted.)); State v. Moore, 547 N.W.2d 159, 171 (Neb.

Ct. App. 1996) (“[W]hen a judge advises the defendant of the penalty that would be imposed

upon a plea of guilty and then imposes a significantly harsher sentence when the defendant is

found guilty after a trial, the judge then bears the burden of establishing that the increased

sentence is due solely to the facts of the case and the personal history of the defendant. If the trial

court, which was involved in the plea bargaining or created the appearance thereof, fails to

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establish the reason for the harsher sentence, the failure to so establish renders the harsher

sentence an abuse of discretion.”).

¶ 77 Garcia’s 100-year term of imprisonment is six decades longer than what the State offered,

and 64 years more than what the circuit judge recommended. We find that the only reasonable

explanation for this exceptionally large plea-trial sentencing disparity is that Garcia was

penalized for exercising his right to trial. The plea-trial disparity in this case—whether measured

by years or percentage—is exceptionally large, 64 years or 177%, respectively. A recent survey

and review of numerous empirical studies in the last few decades on plea-trial sentencing

disparities found an increase of 15-60% in average sentence length. Brian D. Johnson, Trials and

Tribulations: The Trial Tax and the Process of Punishment, 48 Crime & Just. 313, 314-15 (2019)

(“[T]here are persuasive reasons to believe the trial tax is real and substantial. Quantitative

studies consistently unearth large plea-trial disparities, qualitative research confirms their

existence, and attempts to address sample selection issues do not explain it. Most likely, common

methodological problems result in systematic underestimation of the size of the trial tax.”). We

acknowledge that some criminal law scholars account for the plea-trial sentencing disparity

entirely as the incentive or discount to plead guilty, but the dominant view is that plea-trial

sentencing disparities represent a trial penalty, and even scholars in the incentive camp recognize

the need to assume penalties away. See Ben Grunwald, Distinguishing Plea Discounts and Trial

Penalties, 37 Ga. St. U. L. Rev. 261, 264-65 (2021) (compiling law review articles and cases and

proposing framework for empirical test to distinguish between plea incentive and trial penalty).

Here, the 177% plea-trial sentencing disparity exceeds the 15-60% average plea-trial sentencing

disparity reported by Professor Johnson in his review of the empirical studies by a factor of

between 2.95 and 11.8. See Johnson, supra, at 314.

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¶ 78 We cannot account for the large plea-trial sentencing disparity here by any change in the

State’s theory at trial. We understand the State pursued the same four counts at trial that it

presented at the Rule 402 conference. The circuit court recommended nine years on each of the

four counts at the Rule 402 conference, but then sentenced Garcia to 25 years on each of these

four counts. Likewise, we have not been made aware of any additional salient facts that came out

at trial regarding Garcia’s offenses that were not provided to the circuit court at the Rule 402

conference.

¶ 79 Nor can we account for the extraordinary plea-trial sentencing disparity here solely as an

incentive or discount to plead guilty. Garcia contends that the disparity reflects, in substantial

part, a penalty or tax for exercising his constitutional right to be tried. The plea discount notion

may have been acceptable when trials were the norm, but not when, as now, the overwhelming

majority of criminal defendants plead guilty and pleas have become the normative baseline. Id. at

322. Borrowing an analogy to purchasing a new car (which we readily acknowledge may no

longer be the best after the new car market was upended by the COVID-19 pandemic), “only an

ignorant, ill-advised consumer would view the full [sticker] price as the norm and anything less

as a bargain.” Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to

Consumer Protection, 99 Calif. L. Rev. 1117, 1138 (2011). To be sure, trial defendants often

receive “ ‘longer sentences than even Congress or the prosecutor might think appropriate,

because the longer sentences exist on the books largely for bargaining purposes.’ ” Missouri v.

Frye, 566 U.S. 134, 144 (2012) (quoting Rachel E. Barkow, Separation of Powers and the

Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006)).

¶ 80 We do not doubt that the circuit court, in recommending a term of 36 years, factored in

an incentive for Garcia to plead guilty. But we must also recognize that the circuit court’s

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recommendation reflected the nature and gravity of the offense and the harm that it caused the

victim. Otherwise, the victim’s voice in the plea bargain process would have been muted, and the

public would quickly lose faith in our criminal justice system. Here, after the experienced trial

judge was provided with a detailed factual predicate describing the heinous series of criminal

acts that were certain to have caused substantial harm and ongoing trauma to the victim, he

recommended a term of 36 years’ imprisonment. Yet, when the same facts were proven at trial,

the circuit judge sentenced Garcia to 100 years’ imprisonment, almost three times longer than

what he recommended at the plea bargain conference. We are unable to account for this wide

plea-trial sentencing discrepancy exclusively as the incentive for Garcia to plead guilty.

¶ 81 We recognize that the disparity is not the 20 times multiple to which the defendant in

Dennis was sentenced and that other courts have rejected trial penalty arguments because the

trial sentence was less than the 20 times multiple in Dennis. However, Dennis was based on its

unique facts and circumstances (see Dennis, 28 Ill. App. 3d at 78 (limiting finding of

constitutional deprivation to “facts of the instant case”)) and did not establish a factor of 20 as

the minimum necessary to infer a trial penalty. Indeed, at argument, the State acknowledged that

whether a defendant was subject to a trial tax must be assessed on the facts and circumstances of

each case. Here, had Garcia accepted the circuit court’s plea recommendation, and assuming

good behavior, he would have been released in his upper fifties. The trial sentence, on the other

hand, means that Garcia will spend the rest of his natural life in prison. We are unable to discern

even the slightest degree of semblance between the plea recommendation and sentence after trial.

Although the circuit court did not have the benefit of the color that comes with the victim’s

testimony and victim impact statement, it did have before it the cold, hard facts that the State

intended to prove. We have no doubt that the experienced circuit judge fully comprehended the

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gravity of Garcia’s offenses and nature of his defense when the facts were explained to him at

plea bargaining and he recommended a term of 36 years.

¶ 82 Recently, in People v. Walker, 2021 IL App (4th) 190073, ¶¶ 68-69, a child sexual

assault case that was decided after briefing in this case was completed, the court held that the

defendant was not penalized for exercising his right to trial where he was sentenced to an

aggregate term of 35 years after rejecting the State’s offer of a “plea to a Class 2 felony and

probation” where the trial court was not involved in the plea-bargaining stage. In so holding, the

court expressed skepticism of Dennis, finding its reasoning “shaky at best” and, in any case,

noting repeatedly that a trial penalty may not be inferred where a different judge was involved in

the plea-bargaining conference. Id. ¶¶ 65-66, 68, 71 (“Where the trial court is not involved in the

plea-bargaining process, we emphatically reject the notion that a permissible inference arises that

a ‘trial tax’ was imposed instead of the exercise of a trial court’s independent discretion at

sentencing.”). But see People v. Peddicord, 85 Ill. App. 3d 414, 421 (1980) (“The fact that the

judge presiding at the pretrial conference was not the same judge who sentenced the defendant

after his conviction is not indicative, as the State would have us believe, of an independent

determination of an appropriate sentence. The trial judge who presided at the trial and sentencing

hearing must be held responsible for an awareness of the previous history of the case.”); Scott,

256 Ill. App. 3d at 855 (a sentencing court should give proper consideration for a prior plea offer

when determining punishment after trial, “even if he is a different judge who did not participate

in the prior plea offer”).

¶ 83 Walker rhetorically questioned how we got to the point where a reviewing court could

reverse a trial court’s sentence as retributive, based merely on a large disparity in the plea-trial

sentence. The answer is no doubt complicated but the short answer is that our criminal justice

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system has evolved from one of trials to one of plea bargains. See Lafler v. Cooper, 566 U.S.

156, 170 (2012) (“criminal justice today is for the most part a system of pleas, not a system of

trials”); Frye, 566 U.S. at 144 (plea bargaining “is not some adjunct to the criminal justice

system; it is the criminal justice system” (emphasis in original and internal quotation marks

omitted)). It is estimated that 95% of criminal cases that are not dismissed are disposed of by

plea bargain. Frye, 566 U.S. at 143. Plea bargaining today is more collaborative (and some argue

collusive), as opposed to adversarial, where each of the relevant actors—prosecutor, trial court,

and defender organizations—are incentivized to resolve cases quickly and consensually due to

enormous caseloads and lack of sufficient resources to try even a small incremental fraction of

additional cases. See Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms,

126 Harv. L. Rev. 150, 164-65 (2012). And the legislature, which is directly accountable to the

public, benefits because plea bargaining ensures public safety by imprisoning criminals. Id. at

165. Given the enormous pressures to dispose of cases, it would be naïve for us not to recognize

that there may be instances of defendants being penalized for exercising their constitutional right

to be tried where they impose additional burdens on an already overworked criminal justice

system.

¶ 84 Moreover, we do not share Walker’s view that Dennis was incorrectly decided. Dennis

was very clearly decided on the unique facts of the case. To hold that a trial judge’s admission on

the record that he penalized a defendant at sentencing for exercising his right to trial is the

sine qua non of a constitutional deprivation, ignores the reality of our plea-bargained dominated

criminal justice system, and turns a blind eye to the numerous and consistent studies that support

the existence of a trial tax. In addition to the numerous empirical studies, data reported by the

United States Sentencing Commission in 2010 suggests that the severity of the trial penalty has

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increased as trial rates have declined in the wake of recent federal criminal justice policy

changes. See Johnson, supra, at 334-35. To illustrate, the trial penalty increased from 24% in the

post-PROTECT Act [(Prosecutorial Remedies and Other Tools to End the Exploitation of

Children Today Act of 2003, Pub. L. No. 108-21, § 1(a), 117 Stat. 650 (2003))] period (2003), to

36% in the post-Booker [(United States v. Booker, 543 U.S. 220 (2005))] period (2005), to 51%

in the post-Gall [(Gall v. United States, 552 U.S. 38 (2007))] period (2007). Id. (citing U.S.

Sentencing Comm’n, Demographic Differences in Federal Sentencing Practices: An Update of

the Booker Report’s Multivariate Regression Analysis (Mar. 2010), https://www.ussc.gov/sites/

default/files/pdf/research-and-publications/research-publications/2010/20100311_Multivariate_

Regression_Analysis_Report.pdf [https://perma.cc/V925-HZBX]; Jeffery T. Ulmer, Michael T.

Light, & John H. Kramer, Racial Disparity in the Wake of the Booker/Fanfan Decision: An

Alternate Analysis to the USSC’s 2010 Report, 10 Criminology & Pub. Policy 1077-1118

(2011)). In the almost 50 years since Dennis was decided, guilty pleas rates have grown

dramatically, while plea-trial sentencing disparities have only worsened. See id. at 314.

¶ 85 Finally, we find it significant that, for Garcia, the plea-trial sentencing disparity

represents the difference between possible release from prison in his late fifties and definitely

spending the rest of his life in prison. When determining whether a defendant has been subject to

a trial penalty, a de facto life sentence, as here, should merit more exacting scrutiny. After all,

most defendants convicted of murder do not spend the rest of their life in prison 1 (Danielle

Kaeble, U.S. Dep’t of Justice, Time Served in State Prison, 2018 1-4 (Mar. 2021), https://

bjs.ojp.gov/content/pub/pdf/tssp18.pdf [https://perma.cc/U7BQ-ETR5] (average sentence length

Without aggravating circumstances or add-ons for the use of a firearm, the sentence for first 1

degree murder in Illinois is 20 to 60 years. 720 ILCS 5/9-1 (West 2018); 730 ILCS 5-5-4.5-20 (West 2018).

33 1-17-2005

for murder equals 48.8 years and median time served in prison for murder equals 17.5 years));

most defendants “age out” of crime (internal quotation marks omitted) (People v. Lusby, 2020 IL

124046, ¶ 141 (Neville, J., dissenting upon denial of rehearing)). As we explain below, our

constitution requires that we impose a sentence with the objective of rehabilitation when

possible, particularly for defendants like Garcia who are younger in age. We therefore find that

error occurred.

¶ 86 Our determination that the circuit court imposed a trial tax finds further support in the

numerous examples of the circuit court’s frustration with Garcia’s counsel, Frank Avila. Garcia

contends, and we agree, that the animosity between the circuit court and Avila contributed to the

higher sentence Garcia received after exercising his right to trial. For example, the circuit court

told Avila that he was boring the jury by repeatedly asking questions that were already answered

and otherwise asking poorly formulated or irrelevant questions. Avila responded that he would

continue asking questions his way, noting that he had won 10 of his last 11 jury trials. Another

example is when Avila, at the close of the State’s case-in-chief, moved to dismiss the case for

lack of jurisdiction. After denying the motion, the circuit court asked Avila if he had any other

motions, to which Avila responded in the negative. The circuit court followed up with, “How

about a motion for directed finding at the State’s close of the evidence, that they have not met

their burden,” “do you want to make that one *** which is a motion made in the normal course

of a criminal trial.” Avila answered in the negative, to which the circuit judge replied, “perfect.”

Garcia offers numerous other examples to illustrate his contention that the circuit court was

frustrated with Avila’s representation during both pretrial, trial, and posttrial proceedings. We

acknowledge that there are often moments in the heat of trial where counsel and the court will be

at odds and frustrations are expressed in each direction. In this case, however, we find it entirely

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probable, based on the disparity between the sentence offered in exchange for a plea of guilty

and the sentence Garcia received, that the discord between the court and Avila played a part in

the sentence Garcia received after trial.

¶ 87 To be clear, we do not hold that any sentence that a defendant may receive that is greater

or even significantly greater than the offer at the Rule 402 conference constitutes a trial penalty.

A court may impose a sentence following conviction that is greater than what was offered a

defendant at a plea-bargaining conference. See Morgan, 59 Ill. 2d at 281. Our holding today is

that, under the particular circumstances of this case, the record supports Garcia’s claim that he

was penalized for exercising his right to trial when he was given a 100-year sentence after the

circuit court recommended a term of 36 years at the plea bargain conference.

¶ 88 2. Excessive Sentence—Intellectual Disability

¶ 89 We also find the circuit court abused its discretion by failing to adequately consider

Garcia’s intellectual disability. In his motion for new trial, Garcia presented records establishing

his intellectual disability, including the SSR decision dated February 22, 2006, when Garcia was

19 years old; a treatment summary record dated January 2004 when Garcia was in eleventh

grade; and a report of psychological evaluation when Garcia was in tenth grade. The hearing

officer’s decision reflected that she considered Garcia’s school, psychological, treatment, and

other records and heard testimony from Garcia and his mother. The records showed that Garcia

was receiving 25 hours of special education services per week, including 40 minutes per week of

social work services for emotional behavior problems, at Day Alternative School. Garcia

required a structured program with a low student to teacher ratio, often fed into negative

behavior, exhibited attention-seeking behavior, and often got frustrated by his low academic

achievement and inability to express himself. Garcia also had an infant daughter at the time. The

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hearing officer found that Garcia was originally granted Supplemental Security Disabled Child

benefits at age 13 due to la earning disability and speech and language delays (at the time Garcia

was reading at the first-grade level). Garcia’s case was reviewed again when he turned 18 to

determine whether he qualified for benefits under the adult criteria for disability, but his benefits

were terminated because he failed to provide the necessary evidence to process his claim. Garcia

challenged the decision, which led to the hearing.

¶ 90 The hearing officer found that, per a psychological evaluation report dated November

2005, Garcia has a full-scale intelligence quotient (IQ) score of 70, “placing him in the lower

half of the borderline range of intellectual functioning.” To put that in perspective, “[i]t is

estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower,

which is typically considered the cutoff IQ score for the intellectual function prong of the mental

retardation definition.” Atkins. v. Virginia, 536 U.S. 304, 309 n.5 (2002) (citing 2 Kaplan &

Sadock’s Comprehensive Textbook of Psychiatry 2952 (Benjamin Sadock & Virginia Sadock

eds., 7th ed. 2000)); Hall v. Florida, 572 U.S. 701, 719 (2014) (“[m]ild mental retardation is

typically used to describe people with an IQ level of 50-55 to approximately 70,” and an IQ of

70 to 75 is “typically considered the cutoff IQ score” for intellectual disability (internal quotation

marks omitted)). Garcia’s school records showed that he was diagnosed with emotional behavior

disorder and “severe learning disability” that “affected his functioning.” A therapist found that

Garcia’s affect was inappropriate for his emotions. The hearing officer noted that Garcia was

behaved at the hearing, testified very well on his behalf, and did not have any problem

comprehending the questions put to him. The hearing officer nevertheless concluded that Garcia

had “severe impairments with marked limitations in his cognitive skills”; that he did “not retain

the mental capacity to understand, remember and carry out the basic demands of simple,

36 1-17-2005

unskilled work activities on a sustained basis day in and day out”; and that he had “marked

limitations in his ability to interact appropriately with the co-workers and the general public.”

Garcia’s Social Security disability benefits were reinstated.

¶ 91 The State, for its part, did not dispute that Garcia suffered from an intellectual disability.

The circuit court’s only comment at sentencing in this regard was, “I will note for the record

during the evidence of the defense motion for new trial about the psychological issues that are

here, out of 14 years old there’s been no live testimony presented to it other than the reports.”

¶ 92 An intellectual disability is a mitigating factor at sentencing. 730 ILCS 5/5-5-3.1(a)(13)

(West 2018). An intellectual disability is defined as a “sub-average general intellectual

functioning generally originating during the developmental period and associated with

impairment in adaptive behavior reflected in delayed maturation or reduced learning ability or

inadequate social adjustment.” Id. § 5-1-13. Intellectually disabled defendants are categorically

less culpable for their acts, and their diminished blameworthiness reduces society’s interest in

retribution. Atkins, 536 U.S. at 318-20. That is because intellectually disabled adults have

diminished capacity to (1) understand and process information, (2) communicate, (3) abstract

from mistakes and learn from experience, (4) engage in logical reasoning, (5) control impulses,

and (6) understand the reactions of others. Id. at 318.

¶ 93 We agree that the circuit court erred by failing to take account of Garcia’s intellectual

disability at sentencing. Although there is a strong presumption that a trial court’s sentence is

predicated on proper legal reasoning, including the consideration of any mitigating factors

(People v. Holmes, 234 Ill. App. 3d 931, 951 (1992)), here the circuit court’s comment that there

was no live testimony and that the records were 14 years old tells us that he disregarded Garcia’s

undisputed and documented intellectual disability because the records were stale. See Rita v.

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United States, 551 U.S. 338, 356 (2007) (“The sentencing judge should set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis

for exercising his own legal decisionmaking authority.”).

¶ 94 The circuit court erred in two ways with respect to Garcia’s intellectual disability. First,

Garcia’s PSI report states that the investigator was only able to review verified information

contained in Garcia’s criminal history because Garcia was “in the custody of the Kankakee

County Jail and was unable to sign release of information forms.” We fail to comprehend how, in

this day and age, the investigator assigned to do Garcia’s PSI could not secure Garcia’s consent

for release of his medical, educational, and other records bearing on his intellectual disability

simply because Garcia was detained in another jurisdiction. Considering that the circuit court

already had before it records of Garcia’s intellectual disability, and one of Garcia’s main

arguments at sentencing was that his intellectual disability was a mitigating factor, if the circuit

court felt more current information was required, then it should have ordered further

investigation into Garcia’s background before passing a sentence.

¶ 95 Second, and more pertinently, the circuit court misapprehended the nature of an

intellectual disability when it stated that the records were 14 years old. As we stated above,

unlike juvenile offenders whose mental and intellectual development increases over time, the

same is not true for offenders who suffer from an intellectual disability. Our supreme court has

held that “the Miller Court’s decision is founded, principally, upon the transient characteristics of

youth, characteristics not shared by adults who are intellectually disabled” (emphasis omitted)

(Coty, 2020 IL 123972, ¶ 39), and further observed that “unlike a juvenile, whose mental

development and maturation will eventually increase that [rehabilitative] potential, the same

cannot generally be said of the intellectually disabled over time” (id. ¶ 37). See also Muncy v.

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Apfel, 247 F.3d 728, 734 (8th Cir. 2001) (“Mental retardation is not normally a condition that

improves as an affected person ages,” and IQ is “presumed to remain stable over time”). Even

the State agrees with Garcia that his intellectual disability and its attendant characteristics “were

not transitory, or something that would go away as he aged.” Thus, because it is highly likely

that the records that Garcia presented in his motion for new trial were reflective of his

intellectual disability at the time of his offenses and during trial, the circuit court erred by

disregarding Garcia’s evidence of intellectual disability at sentencing.

¶ 96 Although intellectual disability is a statutory factor in mitigation, we recognize that it can

be a double-edged sword and is not necessarily grounds for a reduced sentence. Our supreme

court has determined that future dangerousness of an intellectually disabled adult is a factor

properly considered as an aggravator in sentencing, given an appropriate evidentiary basis:

“ ‘[A] trial court might conclude, from the evidence, that a defendant’s mental retardation

rendered him dangerous to the community, and for this reason decided to increase the

defendant’s prison sentence. If, for example, the evidence established that a defendant

had diminished impulse control as a result of his mental deficiency, and if that lowered

impulse control rendered him a threat to the community, a trial court might conclude that,

because of the defendant’s future dangerousness resulting from his lack of control, the

defendant should be given a greater prison sentence in the interest of protecting the

public. [Citation.] However, where mental retardation indicates future dangerousness, it

is not the mental retardation that is being used as the aggravating factor. Rather, it is the

future dangerousness that results from the mental retardation that is the aggravator. In our

view, there is nothing improper in considering the effects of mental retardation in this

way, so long as the evidence supports the conclusion that the defendant poses a future

39 1-17-2005

danger.’ ” (Emphasis in original.) Coty, 2020 IL 123972, ¶ 35 (quoting People v. Heider,

231 Ill. 2d 1, 20-21 (2008)).

¶ 97 In Coty, for example, the defendant, who was 46 years old at the time of the offense, was

twice convicted of sexual offenses against children, and the court held that diminished capacities

that characterize the intellectually disabled made the defendant a continuing danger to reoffend.

Id. ¶ 36. Here, on the other hand, Garcia’s only prior convictions were for nonviolent offenses,

none of which were sexual offenses, and he was 27 years old at the time of the offense.

¶ 98 Likewise, when the circuit court commented at sentencing on Garcia’s defense theory of

consent and that the victim forced herself on Garcia, it stated that the case against Garcia was not

close, that Garcia was evasive and cunning, that Garcia had spun wild fabrications of what

occurred, and that Garcia thought he was the “smartest person in the room.” We observe that

Garcia also told C.P. that he was with the cartel, that he was sent by the cartel to kill her, and that

the cartel kidnapped the man she was with and threw him in the trunk of a car. But there is no

evidence that any of that was true. Garcia also self-reported to the PSI investigator that he was a

well-known leader of the Maniac Latin Disciples gang and “called the shots.” Again, aside from

Garcia’s statement to the investigator, there is no evidence that Garcia was a high-ranking

member of a gang. Beside his self-aggrandizing and delusional statements, Garcia also exhibited

highly unusual behaviors during his commission of offenses against C.P. For example, after

raping C.P. thrice, he stroked her hair, rubbed her shoulders, and told her about his life, his

daughter, and his mother who passed away. Then he gave her $40, put his phone number in the

victim’s cell phone, returned the phone to her, and told the victim he would return in the morning

to drive her to work. At the very least, Garcia’s statements and behaviors reasonably beg the

question whether Garcia’s apparent belief that he could dupe the jury was due, at least in part, to

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his intellectual disability. See Atkins, 536 U.S. at 320-21 (“Mentally retarded defendants *** are

typically poor witnesses, and their demeanor may create an unwarranted impression of lack of

remorse for their crimes.”). Accordingly, it is at least conceivable that Garcia’s intellectual

disability may mitigate his sentence, and the court abused its discretion in failing to adequately

consider it. We therefore find error occurred.

¶ 99 3. Excessive Sentence—Potential for Rehabilitation

¶ 100 Garcia next contends that the circuit court abused its discretion by failing to consider his

potential for rehabilitation. We agree. In Illinois, all criminal penalties are to “be determined

both according to the seriousness of the offense and with the objective of restoring the offender

to useful citizenship.” (Emphasis added.) Ill. Const. 1970, art. I, § 11. Although the potential for

rehabilitation need not be given any greater weight than the seriousness of the offense (Sharpe,

216 Ill. 2d at 525), the court “may not resign to total retribution one who has a chance of future

restoration to useful citizenship.” People v. Gibbs, 49 Ill. App. 3d 644, 648 (1977). Moreover,

younger defendants “have greater rehabilitative potential.” People v. Miller, 202 Ill. 2d 328, 341-

42 (2002). An excessively long prison sentence does not serve the goal of rehabilitation. People

v. Odom, 8 Ill. App. 3d 227, 228 (1972); People v. Kosanovich, 69 Ill. App. 3d 748, 752 (1979).

¶ 101 Here, in imposing a 100-year sentence on Garcia, the circuit court effectively determined

that Garcia has no prospect for rehabilitation. But the circuit court said nothing about Garcia’s

potential for rehabilitation. That omission is particularly significant because Garcia was 27 years

old at the time of the offense, and all of his prior convictions were for nonviolent offenses,

mostly for possession of narcotics. It may be that, as the State suggests, the circuit court found

Garcia irredeemable because Garcia thought he was the smartest person in the courtroom, spun

wild tales, and otherwise spoke of himself in self-aggrandizing terms. See Ward, 113 Ill. 2d at

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528 (“A defendant’s truthfulness or mendacity while testifying on his own behalf, almost without

exception, has been deemed probative of his attitudes toward society and prospects for

rehabilitation and hence relevant to sentencing.” (Internal quotation marks omitted.)). But

Garcia’s intellectual disability could just as well account for the kinds of delusional testimony

and unusual behaviors that the circuit court found so damning and worthy of an extended

sentence. Because the circuit court did not consider Garcia’s intellectual disability, appears to

have used behaviors characteristic of intellectual disability against Garcia without sufficiently

exploring their implications, and did not otherwise make any findings on Garcia’s prospect of

rehabilitation, we cannot say whether it sufficiently considered Garcia’s prospect for

rehabilitation. See People v. Jackson, 375 Ill. App. 3d 796, 809 (2007) (Wright, J., concurring in

part and dissenting in part) (“[T]his state’s constitution requires the balancing of retribution and

rehabilitation. This is not something we should presume on review or base on clairvoyance. We

should require proper judicial balancing that is apparent from the record.”). The sentencing court

abused its discretion and error occurred here.

¶ 102 As we have found that error occurred with respect to all three of defendant’s arguments

relating to the excessiveness his sentence, we must now determine whether (1) the evidence at

the hearing was closely balanced or (2) the error was so egregious that it denied the defendant a

fair hearing. Hillier, 237 Ill. 2d at 545. Garcia argues that plain error can be established under

either prong but provides no real analysis of either prong’s applicability. Nevertheless, we find

that plain error occurred here under the second prong because Garcia was denied a fair

sentencing hearing.

¶ 103 We have discussed at length our reasons for finding that the trial court abused its

discretion in sentencing defendant to 100 years in prison, based on the unique facts of this case.

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In summary, we found that the court abused its discretion in imposing a “trial tax.” This finding

alone establishes that defendant was denied a fair sentencing hearing. See Dennis, 28 Ill. App. 3d

at 77-78 (it is unconstitutional for a trial judge to punish a defendant merely for exercising his

right to a jury trial). We also found that the court abused its discretion when it failed to

adequately consider Garcia’s intellectual disability and rehabilitative potential at sentencing.

Individually, these actions constitute an abuse of discretion. Cumulatively, they cement our

finding that Garcia was denied a fair sentencing hearing. Accordingly, we find that Garcia has

established plain error under the second prong that requires reversal, and we therefore remand

for a new sentencing hearing.

¶ 104 Finally, we note that because the circuit court judge who presided over this case has

retired, a different judge will conduct a new sentencing hearing on remand.

¶ 105 III. CONCLUSION

¶ 106 The judgment of the circuit court denying Garcia’s motion for a new trial is affirmed. The

judgment of conviction is affirmed, but Garcia’s 100-year aggregate sentence is vacated, and this

case is remanded to the trial court for a new sentencing hearing consistent with our analysis

herein.

¶ 107 Affirmed in part and vacated in part; cause remanded.

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People v. Garcia, 2023 IL App (1st) 172005

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 14-CR- 18394; the Hon. Kevin Sheehan, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, Mario Kladis, and Matthew M. Daniels, of State Appellate Defender’s Office, of Chicago, for for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Marci Jacobs, and Lisa M. Morrison, Assistant for State’s Attorneys, of counsel), for the People. Appellee: