2022 IL App (1st) 171739-B No. 1-17-1739 Opinion filed August 1, 2022 First Division
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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 95 CR 6668 (01) MARTIN HILL, ) ) Honorable Defendant-Appellant. ) Dennis J. Porter, ) Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Walker and Johnson * concurred in the judgment and opinion.
OPINION
¶1 After a jury found Martin Hill guilty of two counts of first degree murder and one count of
attempted first degree murder—offenses he committed at age 15—the trial court sentenced Hill to
a mandatory term of life in prison to run consecutively with a 30-year sentence for the attempt.
We affirmed the trial court’s judgment on direct appeal. People v. Hill, No. 1-98-2383 (2001)
(unpublished order under Illinois Supreme Court Rule 23). Hill filed a postconviction petition
* On Justice Griffin’s retirement, Justice Johnson was substituted on the panel. Justice Johnson has reviewed the briefs and record in formulating her opinion. raising several claims, including a challenge to his life sentence as unconstitutional. The parties
agreed that Hill’s mandatory life sentence violated the principles established in Miller v. Alabama,
567 U.S. 460, 465 (2012), which holds that mandatory life without parole for a juvenile defies the
eighth amendment’s ban on cruel and unusual punishment. The court resentenced Hill to two
concurrent terms of 54 years for first degree murder to run consecutively with a 6-year sentence
for attempt, which Hill contends still violates Miller and its progeny.
¶2 The State conceded, during oral argument, that Hill’s sentence would be unconstitutional
if it is a de facto life sentence. But, the State argued, because of Hill’s eligibility for day-for-day
good behavior credit potentially permitting his release after 30 years in prison, he did not receive
a de facto life sentence. In our first opinion we disagreed. At the time, our appellate court’s
overwhelming weight of authority had concluded that good-time credit had no impact on
determining whether a defendant’s sentence constituted a de facto life sentence. See People v.
Peacock, 2019 IL App (1st) 170308, ¶ 19; People v. Daniel, 2020 IL App (1st) 172267, ¶ 26;
People v. Thornton, 2020 IL App (1st) 170677, ¶ 22; People v. Simental, 2021 IL App (2d) 190649,
¶ 18. But see People v. Evans, 2017 IL App (1st) 143562, ¶ 14 (applying day-for-day credit to
determine whether defendant’s sentence constituted life term).
¶3 Dissatisfied with that result, the State filed a petition for leave to appeal. The Illinois
Supreme Court held the State’s petition while it decided People v. Dorsey, 2021 IL 123010. In
Dorsey, the court concluded that we must consider the possibility of a defendant’s early release
based on sentence credit when determining the applicability of Miller principles to his or her
sentence. Id. ¶ 65. After Dorsey, the Illinois Supreme Court entered a supervisory order directing
us to vacate our earlier opinion and consider how Dorsey affects our judgment.
2 ¶4 We have vacated our previous opinion and now conclude, bound as we are by Dorsey, that
Hill’s new sentence is not a de facto life sentence. By definition, his new sentence cannot violate
Miller under either the eighth amendment or the proportionate penalties clause. Applying
traditional sentencing review, however, we find the trial court abused its discretion by minimizing
the veritable mountain of evidence explaining the impact of Hill’s youth and circumstances on his
criminal conduct and further explaining his ability as an adult to conform his conduct with the law.
Given this, we reverse and remand for the trial court to reweigh Dr. Cunningham’s testimony in a
manner not inconsistent with this opinion.
¶5 Background
¶6 In 1998, Hill was convicted of two counts of first degree murder and one count of attempted
murder relating to a shooting on December 29, 1994. At the time, Hill was 15 years old.
¶7 Hill told authorities that, before the offense, he was out walking when a car approached.
The driver was Leon Jones, Tommy Wilson sat in the front passenger seat, and McKinzie Ranson
sat in the back passenger seat. Wilson, 18 years old, instructed Hill to get in the back seat, and Hill
complied, claiming he sat behind Jones on the driver’s side. A few minutes later, Jones pulled the
car alongside the victims’ car, and Wilson and Ranson shot at the car. Hill told authorities that
Wilson and Ranson were the shooters.
¶8 At Hill’s trial, two eyewitnesses identified Hill as the front seat passenger and Ranson as
sitting in the back on the passenger side. They saw shots coming out of the car from both the front
and back passenger side. Notwithstanding the conflicting testimony, the jury convicted Hill as a
shooter.
3 ¶9 The trial court originally sentenced Hill to two concurrent terms of mandatory life in prison
without parole for each of two counts of first degree murder, with a consecutive term of 30 years
in prison for the attempt.
¶10 This court affirmed Hill’s convictions on direct appeal. In 2001, Hill filed a pro se petition
for postconviction relief. While it was pending, the United States Supreme Court decided Miller,
567 U.S. 460. Based on Miller and People v. Davis, 2014 IL 115595, which held that Miller applied
retroactively on postconviction review, the parties agreed that Hill should be resentenced. Hill’s
counsel, the State, and the circuit court believed resentencing must precede resolving other
postconviction claims. Although all agreed that Hill’s underlying sentence should be vacated, an
order—written or oral—formally granting postconviction relief or vacating the original sentence
is absent from the record.
¶11 The circuit court held a new sentencing hearing. Based on the law at the time of the
offenses, the parties agreed that the sentencing range for each murder was 20 to 60 years, to run
concurrently, and the sentencing range for the attempted murder was 6 to 30 years, to run
consecutively to the murder sentences.
¶12 During Hill’s resentencing hearing, Dr. Mark Cunningham testified as an expert in clinical
psychology and forensic psychology. Dr. Cunningham reviewed Hill’s records and conducted
interviews with Hill and his family members. He testified on general psychological trends and risk
factors in teens and how those factors applied to Hill. Dr. Cunningham concluded that Hill had
various psychological and behavioral issues that would have affected his decision-making ability.
¶13 Dr. Cunningham explained that teens are less capable than adults of mature judgments and
experience a higher propensity for engaging in risky and illegal behaviors. Similarly, teens have
trouble self-regulating and controlling their impulses; thus, they are more susceptible to negative
4 external influences. Given their desire for approval and fear of rejection, teens succumb to peer
pressure even without direct coercion are far more likely than adults to commit crimes in a group
context or where the presence of peers is a motivating factor. Not only does the brain of teens not
operate the same way as an adult brain, but this immaturity lessens the level of their moral
culpability.
¶14 Neurodevelopmental factors could reduce a teen’s functional maturity. The
neurodevelopmental factors that reduced Hill’s functional maturity relative to other 15-year-olds
included fetal cigarette exposure, his mother’s weight loss while pregnant with him, ADHD-type
symptoms, anoxic experiences where the brain was deprived of oxygen, and a history of head
injury. In addition, Dr. Cunningham believed that Hill, though he did not have an ADHD
diagnosis, displayed symptoms on the ADHD continuum, including inability to focus,
hyperactivity, and impulsivity.
¶15 Dr. Cunningham noted Hill had a history of traumatic experiences, including physical
abuse by his mother from belt whippings that left enduring welts, a climate of hostility between
his parents, significant recurrent exposure to prostitution, exposure to community violence, and
sexual abuse by women 5 to 15 years older. Hill, at age 12, also witnessed a peer being gruesomely
crushed to death by an elevator in Hill’s building. Hill lived in a housing project characterized by
heavy gang activity, pervasive drug dealing, and drug abuse. Eighty percent of male teens in the
housing project engaged in felony-level criminal activity. Hill personally observed numerous acts
of violence such as multiple shootings. Abused and maltreated youth, like Hill, often show
immediate and long-term psychological, emotional, and physical effects, including insufficient
capacity for emotional self-regulation, drug or alcohol problems, and violent or criminal behavior.
5 ¶16 Hill had many risk factors, which effects Dr. Cunningham considered catastrophically
cumulative. Dr. Cunningham concluded (i) Hill’s participation in the offense reflected a 15-year-
old’s brain immaturity, including poor judgment, faulty values, and empathy deficits; (ii) the
impulsivity and co-participation characterizing Hill’s involvement fit the brain immaturity of a 15-
year-old; (iii) certain neurodevelopmental factors reduced Hill’s functional maturity relative to
other 15-year-olds; (iv) Hill’s functional maturity at the time of the offense was negatively
impacted by traumatic experiences; (v) Hill’s daily marijuana use further compromised his
functional maturity; (vi) Hill lacked sufficient maturity, perspective, and ego strength to resist the
pervasive influence of his violent and corrupt community; and (vii) family dysfunction and distress
limited the ability of Hill’s parents and relatives to constructively parent him or mitigate the effects
of the surrounding community.
¶17 On cross-examination, Dr. Cunningham acknowledged that Hill was not predestined to
commit murder based on his adverse developmental experiences, although he was highly inclined
for a criminally violent outcome. Dr. Cunningham allowed that the co-occurrence of youthfulness
and adverse developmental experiences might not invariably result in a criminally violent
outcome, though it does significantly increase its likelihood.
¶18 Dr. Cunningham also testified that Hill’s risk of recidivism as lower than the average
parolee, finding that he has a greater likelihood of successful reintegration. To support this, Dr.
Cunningham pointed to Hill’s lack of prior adult arrest record, lack of prior prison sentences, the
long time he had served in prison, his recent prison disciplinary record showing no serious
infractions, family support, housing support from St. Leonard’s House, and employment prospects.
Also, Hill’s conduct as an immature 15-year-old was not predictive of his risk of offending as an
6 adult—decisions made with an immature brain are not predictive of long-term criminality in the
same way decisions might be if made by an adult with a fully developed brain.
¶19 Hill’s behavior while incarcerated also indicated significant gains in psycho-social
maturity and efforts toward rehabilitation. Two corrections officers testified at the resentencing
hearing about their interactions with Hill while incarcerated, calling him a model inmate. Hill’s
prison records indicate several jobs that required the trust of officers.
¶20 Though the court did not believe Hill’s criminal conduct inevitable, it did consider it
unsurprising given Hill’s background. The court also noted it could be reasonably argued that the
older offenders pressured Hill to participate. The court described the 15-year-old Hill as a
“dangerous monster” but addressed his significant improvement in conduct while in jail, stating:
“…the crime you committed was a terrible, terrible crime. It was an ambush
just like the State characterized it against people who are just completely
defenseless. It was a serious, serious, serious crime and seriously you have
answered for it.
And then what have you been since up to this point? Well, you have been
in a structured environment. But I must say to your credit, you’ve handled yourself
pretty well I have to say. Your record in the penitentiary is I would say close to
exemplary, at least as good as anyone else’s that I’ve ever seen that has been in that
long, quite frankly. And you have some people that have put up a shoulder for you
from the jail over there, how you have conducted yourself in jail. You’ve made
significant improvement. So I think it would be fair to remove the monster head
from you at this point, quite frankly.
7 What you will become, that’s a little harder to predict. But I would note that
it doesn’t seem to be any significant gang activity in your background during your
part in the [D]epartment of [C]orrections.
***
I think a significant reduction of your sentence is warranted, quite frankly.
It still has to be a significant sentence based upon the gravity of what you did. I
would point out I cannot ignore the fact that you were one of the shooters in this,
and your degree of participation was as high as it could be, that being one of the
shooters.
Though, having considered—the other thing I might add about the law, I
read Miller to say that anything that makes it a mandatory life sentence on a juvenile
isn’t going to cut it. And, therefore, that would include any mandatory life sentence,
it would include any mandatory consecutive sentence.”
In resentencing, after noting that Hill’s sentence warranted a significant reduction, the circuit court
nevertheless focused on the seriousness of the crime and Hill’s role as a shooter. The court
resentenced Hill to concurrent terms of 54 years in prison for each murder count, and a consecutive
term of 6 years for the attempt count. The circuit court denied Hill’s motion to reconsider sentence,
and Hill appealed to this court. Hill still has other pending postconviction claims unrelated to
Miller.
¶21 Jurisdiction
¶22 First, we must confront an odd jurisdictional wrinkle neither party addressed in their briefs.
Arguably, the circuit court lacked jurisdiction to enter the new sentences because we cannot find
an oral or written order formally granting postconviction relief and vacating the original sentences.
8 Without an order, we lack jurisdiction save for the authority to vacate the circuit court’s void
judgment. People v. Bailey, 2014 IL 115459, ¶ 29.
¶23 Well-settled law states that proceedings on postconviction petitions “[are] not part of the
criminal process” but rather collateral civil proceedings. People v. Johnson, 191 Ill. 2d 257, 270
(2000). This means the filing of a postconviction petition does not continue the underlying criminal
case; the circuit court loses jurisdiction over the criminal case 30 days after the entry of its final
judgment. People v. Lake, 2020 IL App (1st) 170309, ¶ 14. Here, the circuit court entered its final
judgment on May 12, 1998, and the record does not reveal any proceedings on a timely filed
motion to reconsider sentence. As a result, the circuit court lost jurisdiction over the underlying
criminal case on June 12, 1998. Only by granting postconviction relief and entering an appropriate
order can the circuit court reacquire jurisdiction over the criminal case. See 725 ILCS 5/122-6
(West 2018) (“If the court finds in favor of the petitioner, it shall enter an appropriate order with
respect to the judgment or sentence in the former proceedings and such supplementary orders ***
as may be necessary and proper.”).
¶24 In their briefs, Hill and the State assert that the circuit court vacated Hill’s original
sentences and ordered a new sentencing hearing based on a claim under Miller, 567 U.S. 460, that
Hill raised in his postconviction petition. We have examined the portions of the record cited by
both parties. No order vacating the sentences exists. Hill cites the State’s sentencing memorandum,
which says, “On November 16, 2015, th[e circuit] court signed an order granting [Hill’s] petition
and vacating [his] sentence of life without parole.” But the November 16, 2015, order says,
“Defendant remanded to CCDOC. No Bail. B/A 12-15-15.” Likewise, the report of proceedings
contains no oral order vacating Hill’s sentence. This discussion took place before Judge Joyce,
substituting for Judge Porter, on November 16, 2015:
9 “THE COURT: I can appreciate what you say when you mean Miller v.
Alabama and everything else, but has the sentence actually formally been vacated?
And are you asking me to do that now because I suppose I really ought to do that
and then perhaps set no bail and remand him to Cook County Jail. Otherwise the
jail might just send him back to IDOC if they think he has an IDOC sentence.
COUNSEL: I think to be safe entering an order vacating the sentence would
be appropriate. That has been our understanding with Judge Porter is that the
sentence if it had not been vacated, would be vacated.
THE COURT: So I’ll say defendant remanded to Cook County—Is that
what the State believes ought to happen, remand him to Cook County Jail?
STATE: Yes, Judge.
THE COURT: By agreement 12-15-15, remanded to the Cook County Jail,
held pursuant to no bail.”
Once the case made it back to Judge Porter, still there is no order vacating Hill’s underlying life
sentence. The only other mention of vacatur appears in the proceedings on January 24, 2017:
“COUNSEL: [Mr. Hill] still doesn’t understand why we’re doing the
sentencing part first, the Miller part before the post conviction. And he said—He
asked if Your Honor could explain to him why this is happening. We talked about
it, but he wants to hear it from you.
10 THE COURT: Because you can’t have a post conviction without a sentence.
You don’t have a judgment. I can’t do the post conviction without a sentence.
Okay.”
The court and the parties operated on the mistaken belief that Hill’s sentence had been vacated.
¶25 Thus, under the terms of the Post-Conviction Hearing Act, the circuit court lacked
jurisdiction to resentence Hill—the circuit court neither granted postconviction relief nor entered
“an appropriate order with respect to the judgment or sentence in the former proceedings.” 725
ILCS 5/122-6 (West 2018).
¶26 Nevertheless, the revestment doctrine applies, as the State contended at oral argument. The
revestment doctrine allows a court to reassert jurisdiction over a matter where jurisdiction has
otherwise been lost. People v. Kaeding, 98 Ill. 2d 237, 240 (1983). For the doctrine to apply, both
parties must (i) actively participate in the proceedings, (ii) fail to object to the untimeliness of the
late filing, and (iii) assert positions that make the proceedings inconsistent with the merits of the
prior judgment. Bailey, 2014 IL 115459, ¶ 25.
¶27 Both parties actively participated in the resentencing proceedings. Both Hill and the State
filed resentencing memoranda, both Hill and the State called live witnesses at the sentencing
hearing, and both Hill and the State made arguments to the circuit court for what they believed
was an appropriate new sentence. Resentencing took place 19 years after the original sentence,
yet, the State did not object to the untimeliness of Hill’s attack on his sentence. See People v.
Buffkin, 2016 IL App (2d) 140792, ¶ 13 (“the State has failed to object to the untimeliness of
defendant’s attack on his sentence”). Finally, although Hill and the State acknowledged that a
discretionary life sentence was still available to the circuit court, both parties agreed that a
11 mandatory life sentence was off the table. Those positions conflict with the merits of the original
judgment, which imposed a statutorily mandated life sentence.
¶28 Because the circuit court had revested jurisdiction, we also have jurisdiction and can now
proceed to the merits.
¶29 We offer a final note of guidance to the circuit court. Counsel for one of Hill’s codefendants
described the postconviction proceedings as being in “an unusual posture.” The circuit court
agreed and expressed concern about “what happens when you have [an] unusual [posture] and you
couple that with postconvictions,” comparing it to getting “mired into the swamp.” We think this
jurisdictional swampiness could have been avoided by keeping the claims in the postconviction
petition together.
¶30 As reflected in the record excerpts, the parties and the court seemed to think resentencing
Hill had to precede considering his other claims for postconviction relief. In our view, this was
backward. Many of the claims in Hill’s postconviction petition, if successful, would have granted
him a new trial. In his amended petition, counsel raised a claim of actual innocence. Success on
these claims would have mooted the sentencing issue by vacating the entire underlying judgment.
Because Hill’s sentence was only voidable, not void (see id. ¶ 6 (citing People v. Castleberry, 2015
IL 116916)), the circuit court could have deferred Hill’s Miller claim. The posture need not have
been “unusual.”
¶31 Analysis
¶32 The parties’ briefs raise three disputes: (i) whether Hill’s new 60-year sentence is a de facto
life sentence given his eligibility for day-for-day sentence credit; (ii) whether Hill’s new 60-year
sentence comported with the requirements of the eighth amendment to the United States
Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois
12 Constitution (Ill. Const. 1970, art. I, § 11); and (iii) whether his new sentence, even if
constitutional, nonetheless constitutes an abuse of discretion. In our original opinion, we addressed
only Hill’s eighth amendment challenge, and at oral argument, the State conceded that should
Hill’s sentence constitute a life sentence, it is unconstitutional because the trial court concluded
that Hill had rehabilitative potential. We appreciate the State’s candor.
¶33 Our primary task, in light of the State’s concession, was whether to follow the line of cases
finding statutory sentence credit irrelevant to determining whether a sentence constitutes a de facto
life sentence. In our original opinion, we followed Peacock, 2019 IL App (1st) 170308, ¶ 19, where
the defendant’s 80-year sentence subject to day-for-day good behavior credit constituted a de facto
life sentence. Peacock emphasized that the Department of Corrections, not the court, had discretion
in awarding and revoking good time credit, and “the trial court has no control over the manner in
which a defendant’s good conduct credit is earned or lost.” Id. The court held that the defendant
was not sentenced to 40 years but 80 years in prison, even though his inmate status report indicated
that his projected release from prison would be after serving slightly less than 40 years. Id. ¶ 20.
The uncertainty of the actual date of release, subject to the Department of Corrections’ discretion,
pushed the court to hold day-for-day credit could not be considered in a sentence determination.
¶34 In our view, the court in Peacock amply supported its conclusion that “day-for-day credit
is not guaranteed” with decisions from this court and our supreme court. Id. ¶¶ 19-20 (collecting
cases). Peacock’s interpretation also appeared to adhere closely to the supreme court’s analysis in
People v. Buffer, 2019 IL 122327. The language in Buffer focuses on the sentence “imposed,” not
the sentence served. Id. ¶ 41. The court also considered and rejected the State’s statistical approach
to the “survivability” of a sentence. Id. ¶¶ 30-34. In other words, the court declined to focus its
analysis on the potential release date. Id. ¶¶ 33-34. Instead, the court repeatedly emphasized its
13 reliance on sentencing judgments reached by the legislature as the entity “better equipped to gauge
the seriousness of various offenses and to fashion sentences accordingly.” Id. ¶ 35.
¶35 The Illinois Supreme Court took a different approach in Dorsey, 2021 IL 123010. The court
concluded that we cannot determine whether a defendant’s sentence constitutes a de facto life
sentence without considering sentence credit. Id. ¶ 65. The court focused on a defendant’s agency
taking “a direct stake in maintaining good order and discipline while incarcerated.” (Internal
quotation marks omitted.) Id. ¶ 52. The court determined that a defendant would only serve their
complete sentence if they failed to demonstrate the rehabilitative potential Miller contemplates.
Id. ¶¶ 52-54. The court then rejected Peacock’s primary rationale, supported (we thought) by
Buffer, finding it of “no moment” that the trial court has no control over good-conduct credit at the
time it imposes sentence. Id. ¶ 56. Because defendants ostensibly have “power” to shorten their
sentences by earning good-conduct credit (id. ¶ 54), the court reasoned, they have a sufficient
“opportunity to demonstrate rehabilitation and obtain release before [they] spend[ ] more than 40
years in prison” (id. ¶ 61).
¶36 We must now set aside the wisdom and logic of Peacock to follow Dorsey, and doing so
requires us to reject Hill’s eighth amendment challenge to his sentence. Because Hill’s original
conviction predates truth-in-sentencing provisions in the Code of Corrections, he is eligible for
day-for-day credit against his sentence. See, e.g., 730 ILCS 5/3-6-3(a)(2) (West 1994). Assuming
he receives all the credit he is entitled to, Hill will serve 26 years in prison—well below Buffer’s
40-year ceiling. Under Dorsey, Hill is not serving a de facto life sentence, and his sentence need
not be Miller-compliant.
¶37 We next consider whether Dorsey signals the end to Hill’s request for Miller relief under
the proportionate penalties clause. After a recent decision of our court—People v. Meneses, 2022
14 IL App (1st) 191247-B—we ordered supplemental briefing from the parties on the following
question: “Whether People v. Dorsey, 2021 IL 123010, applies to juvenile sentencing claims
seeking to apply the principles of Miller v. Alabama, 567 U.S. 460 (2012), and its progeny under
the proportionate penalties clause of the Illinois Constitution.” We thank the parties for their
supplemental briefs. We conclude Dorsey forecloses Hill’s Miller claim under the Illinois
Constitution as well.
¶38 Though we ultimately agree with the State regarding Dorsey’s affect on Hill’s
proportionate penalties clause claims for Miller relief, the State makes some preliminary
arguments we find misplaced. First, the State argues Hill’s proportionate penalties clause claim is
forfeited because he did not raise it in the first round of briefing in this court or his postconviction
petition. We disagree. The first two substantive paragraphs of Hill’s opening brief argument were
dedicated to the proportionate penalties clause and a traditional analysis of the excessiveness of
his sentence. Then, after discussing Miller and the cases applying it, Hill again argued his sentence
violated the proportionate penalties clause.
¶39 Hill’s failure to mention the proportionate penalties clause in his postconviction petition is
a red herring because the trial court granted postconviction relief on Hill’s Miller claim and set the
cause for resentencing. The relevant proceedings for purposes of forfeiture, therefore, are the
resentencing proceedings, not the postconviction proceedings. And Hill raised the proportionate
penalties clause as a section of his reply to the State’s resentencing memorandum. Hill then restated
his proportionate penalties clause argument in a paragraph in his motion to reconsider his new
sentence. Accordingly, we reject the State’s forfeiture argument as belied by the record and the
original briefs filed in this court.
15 ¶40 The State also argues that juvenile defendants are categorically foreclosed from invoking
the proportionate penalties clause to seek Miller relief. The State asserts in its supplemental brief
that “[i]t is beyond dispute that juvenile sentencing claims are properly analyzed under the eighth
amendment and the safeguards provided by Miller and its progeny, rather than under the Illinois
Constitution.” The State cites no authority for this proposition, and it is misguided besides. Of
course, as the State argues, we analyze young adults’ Miller claims under the proportionate
penalties clause. See, e.g., People v. Franklin, 2020 IL App (1st) 171628. There is a simple reason:
young adults cannot claim Miller protection under the eighth amendment. Id. ¶ 49 (“It is well
established that offenders who are 18 years and older cannot raise a facial challenge to their
sentences under the eighth amendment and the Miller line of cases.”). That young adults are
constrained to raise their Miller claims under the proportionate penalties clause does not constrain
juvenile defendants to rely solely on the eighth amendment.
¶41 And the proportionate penalties clause may soon have heavier lifting to do for juvenile
defendants facing life or de facto life sentences. Our supreme court has recently forecasted its
willingness to follow the United States Supreme Court down the garden path of retracting juvenile
sentencing protections under the eighth amendment. See People v. Jones, 2021 IL 126432, ¶¶ 16-
17, 27 (citing with approval Jones v. Mississippi, 593 U.S. ___, 141 S. Ct. 1307 (2021)). But it is,
by now, axiomatic that the proportionate penalties clause provides greater protections than the
eighth amendment. E.g., Franklin, 2020 IL App (1st) 171628, ¶ 55. Should the United States
Supreme Court or our supreme court or both continue to limit the now-robust protections juvenile
defendants have under Miller and the eighth amendment, our courts will have to turn to the
proportionate penalties clause for juvenile and young adult offenders alike.
16 ¶42 Having cleared the underbrush, we turn to the merits and conclude that Dorsey forecloses
Hill’s Miller claim under the proportionate penalties clause. Whether raised under the eighth
amendment or the proportionate penalties clause, a juvenile defendant must make the same
threshold showing: his or her sentence is a life sentence or de facto life sentence. The constitutional
source of the claim is irrelevant to this preliminary inquiry. Under Dorsey, Hill is not serving a
de facto life sentence (supra ¶ 36), so neither the United States nor the Illinois Constitution has
any work to do.
¶43 Hill relies heavily on our recent decision in Meneses as support for the claim that Dorsey
has not set adrift juvenile offenders “seeking to apply Miller[ ] and its progeny under the Illinois
proportionate penalties clause.” We find Meneses was correctly decided for one key reason: the
State failed to provide evidence of the actual time the defendant would serve on his sentence, and
without that evidence, it would be impossible to hold that Dorsey applied. See Meneses, 2022 IL
App (1st) 191247-B, ¶ 23. Notably, the defendant in Meneses was at the leave-to-file stage of a
successive postconviction petition—a stage at which the State is not allowed to participate. See
People v. Lusby, 2020 IL 124046, ¶ 29. So Meneses is of little value because we cannot predict the
outcome once the State is able to respond to the defendant’s claims. Here, we know Hill’s projected
release date (supra ¶ 36), and as a result, Meneses is distinguishable. Hill’s Miller claim based on
the proportionate penalties clause remains foreclosed.
¶44 Hill’s original and supplemental briefing also raise a proportionate penalties clause claim
unrelated to Miller. He argues his 54-year sentence for first degree murder is “excessive” in that it
“shocks the moral sense of the community and undermines the objective of restoring offenders to
useful citizenship.” We did not have to reach this issue in our first opinion because the State’s
concession limited our inquiry to the threshold question addressed by Peacock. The Illinois
17 Supreme Court’s decision in Dorsey requires us to reject Hill’s Miller claims but does not foreclose
traditional proportionality review. Undertaking that review now, we find the trial court abused its
discretion by imposing a 54-year sentence for the completed murder offenses without adequately
accounting for the deluge of expert testimony explaining Hill’s diminished culpability and
rehabilitative potential.
¶45 Our constitution requires “[a]ll penalties [to] be determined both according to the
seriousness of the offense and with the objective of restoring the offender to useful citizenship.”
(Emphases added.) Ill. Const. 1970, art. I, § 11. Trial judges have wide discretion to set penalties
within an applicable sentencing range though that discretion “ ‘is not unfettered.’ ” People v.
Haley, 2011 IL App (1st) 093585, ¶¶ 63, 65 (quoting People v. O’Neal, 125 Ill. 2d 291, 297
(1988)). In line with the text of our constitution, trial judges must balance the goals of retribution
and rehabilitation. Id. ¶ 63. “[P]roceed[ing] with great caution,” as we must (internal quotation
marks omitted) (id. ¶ 65), we find the trial court failed to adequately consider Dr. Cunningham’s
express connection between Hill’s youth and his commission of the offense.
¶46 We base our conclusion on the stark juxtaposition between the trial court’s resentencing
findings and Dr. Cunningham’s testimony. Dr. Cunningham repeatedly linked Hill’s participation
in the murder with his youth. For example, as a 15-year-old, Hill’s behavior would have been
characterized by impulsivity and co-participation—even more so for Hill because of the unique
neurodevelopmental factors that further reduced his functional age at the time of the offense. Hill
constantly dealt with negative influences and traumatic experiences without the family structure
to insulate him. Dr. Cunningham also emphasized, referring to Hill’s rehabilitative prospects, that
his 15-year-old behavior was not at all predictive of future criminality in the way it would have
been had he committed a murder as a fully developed adult.
18 ¶47 In the face of these findings, the trial court described 15-year-old Hill as a “monster” based
mostly, it seems, on a passing reference during Dr. Cunningham’s cross-examination that Hill’s
criminal behavior was not inevitable even considering his unique circumstances. We acknowledge,
of course, that the trial court explained it would no longer consider Hill a monster based on the
rehabilitative strides Hill made while incarcerated. We find, however, that the trial court did not
give the evidence of Hill’s rehabilitation sufficient consideration given Dr. Cunningham’s
testimony that Hill’s juvenile behavior had virtually no predictive value on his likelihood to re-
offend as an adult. Dr. Cunningham’s testimony shows that Hill’s present-day behavior—
“exemplary,” as the trial court described it—is far more indicative of who he is as a person than
the “monst[rous]” act he committed as a young, impressionable teen.
¶48 We conclude by commenting on the parties’ dispute in their supplemental briefs on the
value of deterrence in juvenile sentencing. The trial court found Hill’s 54-year sentence necessary,
in part, “to deter others from committing the same offense.” Deterrence is a proper sentencing
consideration, indeed one of the four pillars of criminal sentencing. E.g., People v. Jackson, 2012
IL App (1st) 100398, ¶ 15 (purpose of sentencing includes retribution, rehabilitation,
incapacitation, and deterrence). The trial court focused on general deterrence as opposed to specific
deterrence. See Black’s Law Dictionary (11th ed. 2019) (defining “general deterrence” as “[a] goal
*** of a specific conviction and sentence, to discourage people from committing crimes,” versus
“specific deterrence” as “[a] goal of a specific conviction and sentence to dissuade the offender
from committing crimes in the future”). We find deterrence an inapt consideration after reviewing
Dr. Cunningham’s testimony. Because Hill’s 15-year-old behavior was based primarily on the
impetuousness of youth, not considered adult decision-making, we fail to see how a lengthy
19 sentence would deter similarly situated juveniles or adults capable of higher-order cost-benefit
analyses of their decisions.
¶49 We emphasize we do not fault the trial court’s consideration of the egregious nature of
Hill’s offense. He was convicted as the shooter and took two lives. The narrow question is whether
the trial court adequately considered Dr. Cunningham’s extensive testimony explaining Hill’s
criminal conduct, not excusing it. Dr. Cunningham’s testimony provides two primary lessons:
(i) Hill’s uniquely underdeveloped rational thinking skills coupled with his desire to go along with
older peers explained his criminality, and (ii) Hill’s demonstrated rehabilitation as an adult
confirms his youthful susceptibility to the negative influences around him. Taking these lessons,
we find the trial court abused its discretion in minimizing the effects of Hill’s youth on his
participation in these murders and his demonstrated ability to conform his conduct to the law as
an adult.
¶50 Hill argues we should exercise our authority under Illinois Supreme Court Rule 615 to
reduce his sentence ourselves. We decline for two reasons. First, Hill does not offer a sentence he
thinks would be appropriate in place of his 54-year sentence for first degree murder. Second, our
decision is not based on the substantive unreasonableness of Hill’s new sentence; instead, we base
our decision on the trial court’s failure to adequately consider the extensive evidence offered by
Dr. Cunningham. We think the trial court should have the opportunity to reweigh Hill’s sentence
in the first instance in a manner not inconsistent with this opinion. We express no opinion on Hill’s
consecutive six-year sentence for attempted first degree murder.
¶51 Reversed and remanded.
20 No. 1-17-1739
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 95-CR- 6668(01); the Hon. Dennis J. Porter, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Tomas G. Gonzalez, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, David Iskowich, and Koula A. Fournier, Assistant Appellee: State’s Attorneys, of counsel), for the People.