People v. Gomez

2020 IL App (1st) 143269-U

Opinion

2020 IL App (1st) 143269-UB No. 1-14-3269 Order filed September 23, 2020 Third Division

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 DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 08 CR 16453 ) ADRIAN GOMEZ, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge Presiding.

JUSTICE BURKE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.

ORDER

¶1 Held: We reverse and remand for resentencing where defendant’s 48-year sentence for an offense committed when he was a juvenile violates the eighth amendment where the sentencing court failed to sufficiently consider defendant’s youth and its attendant characteristics and his potential for rehabilitation. We further find that defendant’s postconviction counsel did not provide unreasonable assistance.

¶2 Our original order in this case was filed on June 29, 2017. In that order, we affirmed the

circuit court’s dismissal of defendant’s postconviction petition finding that defendant had

forfeited the argument that his sentence was unconstitutional pursuant to the eighth amendment No. 1-14-3269

of the United States Constitution or the proportionate penalties clause of the Illinois constitution.

We also rejected defendant’s claim that he was denied effective assistance of postconviction

counsel and that he was denied meaningful access to the courts. Defendant filed a petition for

leave to appeal to the Illinois supreme court in August 2017. On March 25, 2020, the supreme

court denied the petition for leave to appeal, but issued a supervisory order directing this court to

vacate its order and to consider the effect of the supreme court’s opinions in People v. Buffer,

2019 IL 122327 and People v. Holman, 2017 IL 120655, “on the issue of whether defendant’s

sentence constitutes a de facto life sentence in violation of the Eighth Amendment and Miller v.

Alabama, 567 U.S. 460 (2012), and determine if a different result is warranted.” The court also

directed this court to consider the effect of the supreme court’s opinion in People v. Johnson,

2018 IL 122227, “on the issue of whether defendant was entitled to the reasonable assistance of

counsel at the first stage of post-conviction proceedings, and determine if a different result is

warranted.”

¶3 Defendant appealed to this court from an order of the circuit court of Cook County

summarily dismissing his petition for relief under the Post-Conviction Hearing Act (Act) (725

ILSC 5/122-1 et seq. (West 2010)). In his petition, defendant contended, inter alia, that his trial

counsel was ineffective for failing to prepare him for trial and interview witnesses on behalf. On

appeal, he abandoned the arguments made in his petition and contended that his 48-year sentence

was unconstitutional under the eighth amendment to the United States Constitution and the

proportionate penalties clause of the Illinois constitution. He further contended that his

postconviction counsel provided unreasonable assistance by failing to raise a claim in the

postconviction petition that was cognizable under the Act, which also denied him meaningful

access to the courts. For the reasons that follow, reverse and remand to the circuit court for a new

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sentencing hearing where defendant's 48-year sentence for an offense committed when he was a

juvenile violates the eighth amendment where the sentencing court failed to sufficiently consider

defendant’s youth and its attendant characteristics and his potential for rehabilitation.

¶4 I. BACKGROUND

¶5 A. Trial

¶6 A full recitation of the facts can be found in this court’s order on defendant’s direct

appeal. People v. Gomez, 2012 IL App (1st) 102195-U (unpublished order under Supreme Court

Rule 23). As pertinent here, the record shows that defendant was charged with the murder of

Juan Torres in a shooting that occurred on June 20, 2008. Defendant was 16 years old at the time

of the shooting. Following the testimony of several witnesses and a Chicago police detective, the

jury found defendant guilty of first degree murder and that he personally discharged a firearm

during the commission of that offense.

¶7 After the trial, defendant’s counsel withdrew and defendant retained new counsel to

represent him. Defendant’s new counsel filed a motion for a new trial alleging ineffective

assistance of defendant’s original trial counsel in failing to interview defendant about his version

of the events, failing to properly prepare for the trial, and failing to raise a claim of self-defense.

The court held a hearing on defendant’s motion during which defendant’s original trial counsel,

defendant, and defendant’s mother testified. Following the hearing, the court noted that

defendant testified that he told his trial counsel he had no witnesses to present on his behalf and

further found that defendant’s trial counsel had performed adequately throughout trial. The court

therefore denied defendant’s motion for a new trial.

¶8 At defendant’s sentencing hearing, the trial court stated that there were many factors it

had to consider in determining defendant’s sentence, including deterring others from committing

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this offense in the future. The court observed that defendant was “a young man. You were a

teenager, a young teenager when this offense was committed.” The court found, however, that

based on the facts of the case, defendant responded to a fistfight by pulling out a weapon and

taking a life. The court stated that it also considered defendant’s lack of background, a single

prior juvenile adjudication in 2007 for unlawful use of a weapon, and the facts surrounding the

crime. The court noted that the minimum sentence in defendant’s case was 45 years’

imprisonment, and after considering all of the factors in aggravation and mitigation, sentenced

him to a term of 48 years’ imprisonment. On direct appeal, this court affirmed the circuit court’s

judgment over defendant’s sole contention that the trial court erred in tendering the jury a second

degree murder instruction. Gomez, 2012 IL App (1st) 102195-U.

¶9 B. Defendant’s Postconviction Petition

¶ 10 On June 30, 2014, defendant filed, through counsel, the postconviction petition at bar. In

his petition, defendant contended, inter alia, that his trial counsel was ineffective for failing to

prepare him for trial and interview witnesses on behalf. In ruling on defendant’s petition, the

court dismissed the petition at the first stage of postconviction proceedings. The court found that

it had considered the same claims of ineffective assistance in ruling on defendant’s motion for a

new trial. The court concluded that defendant’s claims were therefore barred by res judicata and

because defendant failed to raise any issue of trial counsel’s ineffectiveness on direct appeal, the

claims had also been waived. Defendant now appeals that ruling.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant abandons the arguments set forth in his petition and instead

contends that his 48-year sentence violated the eighth amendment to the United States

Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois

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constitution of 1970 (Ill. Const. 1970, art. I, § 11). Defendant also contends that his

postconviction counsel was ineffective for failing to raise claims in the petition that were

cognizable under the Act.

¶ 13 A. The Post-Conviction Hearing Act

¶ 14 As an initial matter, we note that the Act provides a three-stage mechanism by which a

criminal defendant may assert that his conviction was the result of a substantial denial of his

constitutional rights. 725 ILCS 5/122-1 (West 2010); People v. Delton, 227 Ill. 2d 247, 253

(2008). At the first stage of proceedings, the defendant is required to set forth only the “gist” of a

constitutional claim, and the circuit court may summarily dismiss the petition if it finds that the

petition is frivolous or patently without merit, i.e., that it has no arguable basis in law or fact.

People v. Hodges, 234 Ill. 2d 1, 9, 16 (2009). Section 122-2 of the Act specifically provides that

“the petition shall *** clearly set forth the respect in which petitioner's constitutional rights were

violated,” and, section 122-3 provides that “[a]ny claim of substantial denial of constitutional

rights not raised in the original or amended petition is waived” (725 ILCS 5/122-2 (West 2010);

725 ILCS 5/122-3 (West 2010)). People v. Jones, 213 Ill. 2d 498, 503-04 (2004). We review the

summary dismissal of a postconviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 389

(1998).

¶ 15 B. De Facto Life Sentence

¶ 16 Defendant’s claim that his 48-year sentence violates the United States and Illinois

constitution is based on the United States Supreme Court’s ruling in Miller v. Alabama, 567 U.S.

460 (2012) and subsequent decisions from both the United States Supreme Court and the Illinois

supreme court interpreting and applying Miller. In Miller, the Supreme Court held that

mandatory life sentences for juveniles violate the eighth amendment’s prohibition of cruel and

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unusual punishment. Miller, 567 U.S. at 489. The United States Supreme Court expanded on its

decision in Miller in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016). In

Montgomery, the Court determined that Miller should apply retroactively and state courts must

apply Miller in collateral proceedings. Id. at ___, 136 S. Ct. at 732. The Court further fond that

Miller did not prohibit all life sentences for juveniles, but reserved life sentences for “the rare

juvenile offender whose crime reflects irreparable corruption.” (Internal quotation marks

omitted.) Id. at ___, 136 S. Ct. at 733. Throughout the decision, the court repeatedly stated that

the decision in Miller applied only to juvenile offenders sentenced to “mandatory life without

parole.” Id. at ___, 136 S. Ct. at 726, 732, 736.

¶ 17 The Illinois supreme court had an opportunity to interpret Miller in People v. Davis, 2014

IL 115595. In Davis, the defendant filed a successive postconviction petition under the Act

contending that his mandatory life sentence was unconstitutional. Id. ¶ 10. The supreme court

determined that Miller applied retroactively and that “Miller’s new substantive rule constitutes

‘cause’ [to satisfy the ‘cause and prejudice’ test for successive postconviction petitions] because

it was not available earlier***” Id. ¶ 42. In People v. Reyes, 2016 IL 119271, our supreme court

expanded the holding of Miller, finding that Miller applied to so-called “de facto” life sentences

for juveniles. The supreme court found that such sentences violate Miller where the sentence is

so long that it “amounts to the functional equivalent of life.” Id. ¶ 9

¶ 18 In our initial ruling in this case, we found, based on the divided opinions of the appellate

court, that defendant had forfeited the right to challenge his sentence as a de facto life sentence

because he did not raise the issue in his postconviction petition. We noted that, at the time, there

was a lack of direction from the supreme court regarding how to address the numerous

challenges by juveniles concerning their sentences, and found that, as a defendant’s specific

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factual circumstances were necessary to properly address the issue, it was improper for this court

to address the issue for the first time on appeal.

¶ 19 Since this court’s initial order, however, the supreme court has provided additional

guidance concerning how this court should address claims raised by juvenile offenders

challenging their discretionary and de facto life sentences. First, the supreme court issued its

opinion in Holman, 2017 IL 120655, in which the court found that that the 17-year-old

defendant’s discretionary life sentence was unconstitutional because the record did not indicate

that the trial court considered defendant’s “youth and its attendant circumstances.” Id. ¶ 47. The

supreme court directed courts “revisiting a discretionary sentence of life without parole [to] look

at the cold record to determine if the trial court considered such evidence at the defendant’s

original sentencing hearing.” Id. The Holman court also addressed the issue of forfeiture and

determined that where the record is sufficiently developed for appellate review, the court should

address a defendant’s claim that his sentence does not comply with Miller in the interests of

judicial economy. Id. ¶ 32. Holman, however, concerned a juvenile defendant’s discretionary life

sentence without the possibility of parole, which is not at issue here. Instead, as discussed,

defendant contended that his 48-year sentence was unconstitutional because it represented a de

facto life sentence. At the time of our initial ruling, there was inconsistency among various

panels and districts of this court regarding the precise number of years that represented a de facto

life sentence.

¶ 20 Recently, however, the supreme court addressed de facto life sentences for juveniles in

Buffer, 2019 IL 122327. In Buffer, a jury found the 16-year-old defendant guilty of first degree

murder and that he personally discharged a firearm that caused the victim’s death. Id. ¶ 5. The

court sentenced defendant to a 25-year term of imprisonment on the first-degree murder counts

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and an additional 25 years for personally discharging a firearm that resulted in the victim’s death,

for an aggregate term of 50 years. Id. This court affirmed defendant’s conviction and sentence on

appeal. Id. ¶ 6.

¶ 21 The defendant subsequently filed a pro se postconviction petition contending that his 50-

year sentence violated the eighth amendment because it constituted a de facto life sentence. Id. ¶

7. This court reversed the circuit court’s dismissal of defendant’s postconviction petition and the

State appealed to the supreme court. Id. ¶¶ 9-10. After reviewing the United States Supreme

Court’s rulings in Miller and subsequent cases, the supreme court accepted the State’s invitation

to “decide when a prison term of years imposed in a juvenile is the functional equivalent of life

without parole.” Id. ¶ 29. The supreme court held that “[i]n determining when a juvenile

defendant’s prison sentence is long enough to be considered de facto life without parole, we

choose to draw the line at 40 years.” Id. ¶ 40. The court therefore determined that because the

defendant’s sentence was greater than 40 years and the record indicated that the circuit court

failed to consider the “defendant’s youth and its attendant characteristics” in imposing that

sentence, that defendant’s sentence was therefore unconstitutional. Id. ¶ 42. The court found that

because all of the facts and circumstances necessary to determine the defendant’s claim were

already in the record, the appropriate remedy was to vacate defendant’s sentence and remand for

a new sentencing hearing. Id. ¶¶ 46-47.

¶ 22 The circumstances of Buffer are substantially similar to the case at bar. The primary

distinction is that the defendant in Buffer raised the constitutional issues regarding his sentence in

his postconviction petition, while the defendant in this case did not. However, as the Holman

court explained, where the record is sufficiently developed for appellate review, this court should

address a defendant’s claim that his sentence does not comply with Miller in the interests of

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judicial economy. Holman, 2017 IL 120655, ¶ 32. This notion was echoed by the Buffer court,

which found that the appropriate remedy was to vacate defendant’s sentence where all of the

facts and circumstances to decide the defendant’s claim were already on the record and where

the record did not indicate that the sentencing court considered defendant’s youth and its

attendant circumstances. Buffer, 2019 IL 122327, ¶¶ 46-47. As such, this court has found “no

policy to be furthered by finding forfeiture occurred” where defendant raises a Miller-based

claim for the first time on appeal from the dismissal of a petition under the Act. People v. Nieto,

2020 IL App (1st) 121604-B, ¶ 48. 1

¶ 23 Here, defendant’s 48-year sentence clearly exceeds the 40-year guideline prescribed by

Buffer. Therefore, defendant’s sentence is constitutional only if the record shows that the

sentencing court considered defendant’s youth and its attendant characteristics. The supreme

court in Miller discussed some of the attendant characteristics of youth:

“Mandatory life without parole for a juvenile precludes consideration of his

chronological age and its hallmark features—among them, immaturity, impetuosity, and

failure to appreciate risks and consequences. It prevents taking into account the family

and home environment that surrounds him—and from which he cannot usually extricate

himself—no matter how brutal or dysfunctional. It neglects the circumstances of the

homicide offense, including the extent of his participation in the conduct and the way

familial and peer pressure may have affected him. Indeed, it ignores that he might have

1 We note that version of Nieto, 2020 IL App (1st) 121604-B currently available on Westlaw and through the Illinois Supreme Court’s website, improperly lists the original year of the decision in the public domain citation: “People v. Nieto, 2016 IL App (1st) 121604-B.” (Emphasis added.) As the original version of the order has been vacated following the supreme court’s supervisory order and the revised opinion was issued in 2020, the proper public domain citation is “2020 IL App (1st) 121604-B.” This proper citation is reflected on the Illinois Supreme Court’s website, but not on the text of the opinion itself. See http://www.illinoiscourts.gov/Opinions/recent_appellate.asp (last visited Aug. 3, 2020).

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been charged and convicted of a lesser offense if not for incompetencies associated with

youth—for example, his inability to deal with police officers or prosecutors (including on

a plea agreement) or his incapacity to assist his own attorneys. [Citations.] And finally,

this mandatory punishment disregards the possibility of rehabilitation even when the

circumstances most suggest it.” Miller, 567 U.S. at 477-78.

Similarly, the Holman court set forth a variety of factors a sentencing court should consider in

determining whether to sentence defendant to a term of life imprisonment, or de facto life

imprisonment, without parole:

“(1) the juvenile defendant’s chronological age at the time of the offense and any

evidence of his particular immaturity, impetuosity, and failure to appreciate risks and

consequences; (2) the juvenile defendant’s family and home environment; (3) the

juvenile defendant’s degree of participation in the homicide and any evidence of familial

or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence,

including his inability to deal with police officers or prosecutors and his incapacity to

assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.”

Holman, 2017 IL 120655, ¶ 46; see also 730 ILCS 5/5-4.5-105(a) (West 2016) (codifying

these factors).

¶ 24 Here, as in Buffer, the record indicates that the sentencing court did not adequately

consider defendant’s youth and its attendant characteristics. Although the sentencing court in this

case noted that defendant was “a young man. You were a teenager, a young teenager when this

offense was committed,” such a blanket statement clearly does not encompass the considerations

contemplated by Miller, Holman, and related cases. For instance, the Buffer court found that the

sentencing court did not adequately consider defendant’s youth and its attendant characteristics

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in determining his sentence where the court specifically stated that it considered “defendant’s

age.” Buffer, 2019 IL 122327, ¶ 5. Similarly, in People v. Zachary Reyes, 2020 IL App (2d),

180237, ¶ 31, this court noted that the record showed that the trial court stated that it considered

the Miller factors at the juvenile defendant’s sentencing hearing, but this court found that

although the trial court noted the defendant’s age before sentencing him to a de facto life

sentence, the

“trial court never commented on the defendant’s immaturity, impetuosity, or

ability to understand risks and consequences. The trial court did not specifically address

whether the defendant was too young or too immature to resist the negative influences

surrounding him at the time, or whether he was mature enough to maintain control over

his actions.”

The Zachary Reyes court determined that defendant’s sentence therefore did not comply with

Miller and Holman and that the appropriate remedy was to vacate the defendant’s sentence and

remand for resentencing. Id. ¶ 32.

¶ 25 Accordingly, we find that that because defendant’s 48-year sentence is greater than 40

years, it represents a de facto life sentence. We also conclude that the circuit court failed to

consider defendant’s youth and its attendant characteristics in imposing that sentence.

Accordingly, we hold that defendant’s sentence violates the eighth amendment and is

unconstitutional. We find that the appropriate remedy is to vacate defendant’s sentence and

remand the cause for a new sentencing hearing. On remand, defendant is entitled to be sentenced

under the scheme prescribed by section 5-4.5-105 of the Unified Code of Corrections (730 ILCS

5/5-4.5-105 (West 2016)). Buffer, 2019 IL 122327, ¶ 47; see also, People v. Peacock, 2019 IL

App (1st) 170308, ¶ 25.

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¶ 26 C. Ineffective Assistance of Postconviction Counsel

¶ 27 We note that the supreme court’s supervisory order further directed this court to consider

the effect of Johnson, 2018 IL 122227, “on the issue of whether defendant was entitled to the

reasonable assistance of counsel at the first stage of post-conviction proceedings, and determine

if a different result is warranted.” Defendant contends on appeal that his postconviction counsel

provided ineffective assistance by raising procedurally barred claims in the petition. In our

original order, we rejected defendant’s claim of ineffective assistance of postconviction counsel

on the basis that there is no constitutional right to the assistance of counsel in the first stage of

the postconviction process. In Johnson, however, the supreme court held that “a defendant who

retains a private attorney at the first stage of postconviction proceedings is entitled to a

reasonable level of assistance of counsel.” Id. ¶ 23.

¶ 28 Although the supreme court has not explicitly set a standard for determining whether

postconviction counsel has provided “a reasonable level of assistance,” this court has applied a

“Strickland-like” analysis for evaluating counsel’s performance. People v. Zareski, 2017 IL App

(1st) 150836, ¶¶ 58-59; see Strickland v. Washington, 466 U.S. 668 (1984). Under that standard,

we evaluate whether the defendant has demonstrated prejudice, that is, whether there is a

reasonable probability that, but for counsel’s errors, the result of the proceeding would have been

different. People v. Jackson, 205 Ill. 2d 247, 259 (2001).

¶ 29 Here, defendant contends that his postconviction counsel provided ineffective assistance

because his counsel drafted a petition that argued ineffective assistance of trial counsel, which

was barred by both res judicata and waiver. Defendant contends that his postconviction counsel

could have avoided these procedural bars by raising a claim of appellate counsel’s

ineffectiveness for failing to raise a claim of trial counsel’s ineffectiveness. Although defendant

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is correct, we could find that his postconviction counsel provided unreasonable assistance only if

defendant can show that had postconviction counsel raised a claim of appellate counsel’s

ineffectiveness for failing to raise a claim of trial counsel’s ineffectiveness that the result of his

postconviction proceedings would have been different. That is, defendant would have to show

that a claim based on trial counsel’s ineffectiveness, raised under the premise of appellate

counsel’s ineffectiveness for failing to raise that claim, would have been sufficient to survive the

first stage of postconviction proceedings. As defendant acknowledged in his brief, however, “the

majority” of the claims of ineffective assistance of trial counsel were considered and rejected by

the trial court at the hearing on defendant’s motion for a new trial. At the hearing, defendant

himself testified that he did not have any witnesses that could “counteract” the trial testimony

presented by the State, that he told his trial counsel that he did not want to testify, and that he

agreed with his trial counsel that he did not want to pursue a second degree murder instruction.

Defendant also acknowledged in his brief that the remaining claims in the petition were

positively rebutted by the record.

¶ 30 Defendant thus discusses why the claims of ineffective assistance were procedurally

barred, but he fails to even suggest that the claims had any merit had they been raised under the

guise of appellate counsel’s ineffectiveness. In ruling on defendant’s motion for a new trial based

on trial counsel’s performance, the trial court found that defendant had failed to meet either

prong of the Strickland standard. The court found that the State presented “very compelling”

evidence of defendant’s guilt, including an eyewitness who identified defendant as the shooter

and showed that defendant’s actions were not justified. The court further found that counsel

made strategic decisions, that were consistent with defendant’s own beliefs regarding how the

case should be presented, and found that trial counsel’s performance was not deficient and did

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not prejudice defendant. Before this court, defendant fails to identify any argument that could

support a claim of ineffective assistance of appellate counsel for failing to raise a claim of

ineffective assistance of trial counsel. Although such an argument may have helped defendant

overcome the procedural bar that resulted in the dismissal of his petition, defendant has failed to

show any prejudice resulting from such dismissal where he failed to identify any viable

arguments that would have supported such a claim. As such, we cannot say that defendant’s

postconviction counsel provided unreasonable assistance. See Zareski, 2017 IL App (1st)

150836, ¶ 68 (finding that postconviction counsel did not provide unreasonable assistance

despite raising claims barred by res judicata where defendant failed to explain how he was

prejudiced by the barred claims and the record did not reveal any prejudice).

¶ 31 III. CONCLUSION

¶ 32 For the reasons stated, we vacate defendant’s sentence and remand for a new sentencing

hearing consistent with this order.

¶ 33 Reversed; sentence vacated and cause remanded for resentencing, with directions.

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