2024 IL App (4th) 230093-U NOTICE This Order was filed under NO. 4-23-0093 FILED Supreme Court Rule 23 and is February 27, 2024 not precedent except in the Carla Bender IN THE APPELLATE COURT th limited circumstances allowed 4 District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County DeANGELO MARTEZ LINDSEY, ) No. 09CF618 Defendant-Appellant. ) ) Honorable ) Katherine S. Gorman, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Lannerd and DeArmond concurred in the judgment.
ORDER
¶1 Held: Defendant’s 30-year prison sentence for first degree murder was affirmed where (1) the trial court acted within its discretion by denying defendant’s request for funds for an expert and (2) the sentence was not excessive.
¶2 In 2010, a Peoria County jury found defendant, DeAngelo Martez Lindsey, guilty
of first degree murder (720 ILCS 5/9-1(a)(3) (West 2008)) in connection with a shooting that
occurred when defendant was 17 years old. Defendant originally received a sentence of 52 years
in prison. In 2021, defendant filed a postconviction petition, seeking to be resentenced based, in
part, on changes in the law regarding sentencing juvenile offenders. The State conceded the need
for resentencing. In 2022, the trial court resentenced defendant to 30 years in prison. Defendant
appeals, arguing that (1) the court erroneously denied his motion for funds to hire an expert and
(2) the sentence is excessive. We affirm.
¶3 I. BACKGROUND ¶4 A. Defendant’s Conviction and Original Sentence
¶5 The 2013 opinion arising from defendant’s direct appeal contains a thorough
summary of the trial evidence. People v. Lindsey, 2013 IL App (3d) 100625, ¶¶ 6-29. For purposes
of this appeal, it will suffice to say that on May 27, 2009, Anil Dhingra was fatally shot at a gas
station in Peoria during an attempted armed robbery committed by defendant (age 17) and Ali
Evans (age 20). The gas station lacked surveillance cameras, and there were no witnesses to the
shooting. Thus, the State could not prove definitively whether it was defendant or Evans who fired
the gun repeatedly at Dhingra. Nevertheless, some circumstantial evidence suggested that
defendant may have been the shooter. Specifically, a witness saw two males run out of the gas
station after the shooting, and only one of them had a gun in his hand. Although this witness was
unable to identify the person with the gun, she identified Evans as the person who did not have the
gun. Additionally, the police found the murder weapon at defendant’s sister’s home, and
defendant’s fingerprint was on it. Defendant testified in his own defense. Although he
acknowledged being at the scene of the shooting, he denied participating in murdering or
attempting to rob Dhingra.
¶6 At defendant’s trial in April 2010, the prosecutor argued that defendant was guilty
of first degree murder under an accountability theory, even if he did not personally fire the gun.
The jury found defendant guilty. The trial court, Judge James Shadid presiding, sentenced
defendant to 52 years in prison. On direct appeal, the appellate court held, inter alia, that
defendant’s sentence was not excessive. Lindsey, 2013 IL App (3d) 100625, ¶¶ 53-59.
¶7 B. Separate Proceedings Relating to Evans
¶8 Evans was tried separately for first degree murder, convicted, and sentenced to 58
years in prison. The appellate court reversed Evans’s conviction and remanded for a new trial
-2- based on an evidentiary error. People v. Evans, 2012 IL App (3d) 100737-U, ¶ 25. Evans was tried
again, convicted, and resentenced to 58 years in prison. The appellate court reversed Evans’s
conviction and remanded for a third trial based on a different evidentiary error. People v. Evans,
2016 IL App (3d) 140120, ¶¶ 24, 59, 62. Evans then pleaded guilty to aggravated battery with a
firearm, and he was sentenced to 28 years in prison.
¶9 C. Defendant Requests a New Sentencing Hearing
¶ 10 Meanwhile, in 2012, the United States Supreme Court held in Miller v. Alabama,
567 U.S. 460, 489 (2012), that a mandatory sentence of life in prison without the possibility of
parole for a juvenile offender violates the eighth amendment of the United States Constitution
(U.S. Const., amend. VIII). In 2016, the Illinois legislature responded to Miller by enacting section
5-4.5-105 of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-4.5-105 (West 2016)),
which contains additional mitigating factors a trial court must consider when sentencing someone
for an offense committed as a juvenile. In November 2021, defendant filed a postconviction
petition requesting to be resentenced. In May 2022, the State conceded that defendant’s 52-year
sentence violated the eighth amendment because the trial court had failed to make specific factual
findings as required by People v. Holman, 2017 IL 120655. (During the pendency of this appeal,
our supreme court overruled Holman in People v. Wilson, 2023 IL 127666, ¶ 42). In June 2022,
the trial court granted defendant’s postconviction petition and ordered defendant to be resentenced.
¶ 11 D. Defendant’s Request for Funds to Hire an Expert for Resentencing
¶ 12 On August 9, 2022, defendant filed a motion requesting funds to hire an expert for
the forthcoming resentencing hearing pursuant to section 113-3(d) of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/113-3(d) (West 2022)). Defendant argued that “to properly
develop all of the information required for the court to consider” under the additional statutory
-3- sentencing factors relating to juvenile offenders (see 730 ILCS 5/5-4.5-105 (West 2022)), “the
defense is in need of the services of an expert in psychology to review the defendant’s history and
circumstances and to prepare a report for the court regarding the same.” Defendant indicated that
his attorney had consulted with Dr. Oluwatamilore Odimayo, who charged $200 per hour.
According to defendant’s motion, Dr. Odimayo’s rate was equivalent to or significantly less than
other experts defense counsel consulted. Defendant requested the trial court to make available
approximately $3000 for the defense to retain Dr. Odimayo to evaluate defendant.
¶ 13 Defendant presented this motion to the trial court on August 19, 2022. The
prosecutor objected to the motion on that bases that (1) section 113-3(d) of the Code references
“capital cases” (725 ILCS 5/113-3(d) (West 2022)), and this is not a capital case and (2) defendant
had not shown the need for an expert. Defense counsel responded that although she could make
arguments at the sentencing hearing by “applying general principles of adolescent development,”
she was “certainly not an expert in that.” Thus, defense counsel proposed that it was reasonable to
have a psychologist evaluate defendant and to “be able to offer an opinion as to those things.” With
respect to the county paying for an expert, defense counsel contended that $3000 was “a drop in
the bucket” because defendant faced a very lengthy prison sentence.
¶ 14 The trial court questioned defense counsel about the need for an expert:
“Okay. Well, what would [the expert] add specifically to your client?
Because, I mean, you can get into [defendant’s] background, you can get into the
factors that apply to youth. We’ve all read all the studies. What really additionally
will [the expert] add? I get it, [defendant] was 17. And I’ve done a few of these post
conviction hearings on this specific issue, including resentencing someone, and I
don’t—I don’t really know what [the expert] will add specifically.”
-4- Defense counsel responded:
“Your Honor, I think it’s hard to say until, you know, an evaluation is done,
but I think specifically looking at the unique situation of my client’s childhood,
which may have contributed to his impetuosity, I think specifically knowing what
I know about my client it would be, you know, he had a traumatic childhood, which
I know can affect, you know, frontal lobe development. So looking at the specifics
of his childhood and the home life that he lived at the time, which may have led
him to make decisions that he made back in 2009.”
The court continued to doubt the need for an expert:
“All of those things—it has been the Court’s experience that every
adolescent that acts out in the inappropriate way that your client and the other
individuals that find themselves incarcerated for a long time—it has been my
experience that all of them have had a home life where none of us would wish that
upon our worst enemy.
And so again, I don’t—and I understand that most certainly I would
consider your individual client in—in assessing the mitigation factors, but I just
don’t know what specifically would be contributed by this person at the County’s
expense. So if you would like to present me with any additional information, I will
allow that. But at first blush, I don’t know what specifically he’ll add, other than
the general—generalities that all of us already are acquainted with.”
The court proposed continuing the matter for a few weeks, giving defense counsel time to submit
what she would like before then. The court asked defense counsel whether that would give her
enough time. Counsel responded, “That should be fine, Judge.”
-5- ¶ 15 The trial court addressed this issue again on September 9, 2022. The court asked
defense counsel whether there was anything she would like to add. Defense counsel responded,
“No. No, Your Honor.” The prosecutor again objected to the defense hiring an expert at the
county’s expense:
“Well, I guess just to sum up our position, Judge, is that those factors are
already codified and the reasons why are already codified as part of the—I guess
the legislative history behind that act. And so I don’t think there would need to be
funds for an expert to come explain those same things to you that are now required
to consider.”
The court agreed with the prosecutor and denied defendant’s request for funds.
¶ 16 E. Materials Submitted for the Resentencing Hearing
¶ 17 The materials submitted for resentencing showed the following.
¶ 18 Defendant was born in December 1991, and he had no spouse or children. He
completed the eighth grade. He had not yet obtained a general equivalency diploma (GED), though
he intended to do so.
¶ 19 In May 2008, defendant was sentenced to 2 years of probation and 30 days of
juvenile detention for residential burglary. Defendant violated the terms of his probation by failing
to report, using marijuana, failing to be assessed for drug and alcohol treatment, and committing
ordinance violations. Defendant later violated the conditions of probation again by failing to report,
failing to notify of a change in address, and being unsuccessfully discharged from intensive
outpatient treatment (evidently for substance abuse). On May 8, 2009, a warrant was issued for
defendant’s detention in connection with the residential burglary case. On May 31, 2009,
defendant was served with that warrant when he was arrested for murder in connection with
-6- Dhingra’s May 27, 2009, shooting. Defendant had remained incarcerated since that time. In 2011,
defendant was disciplined in prison for fighting with another inmate.
¶ 20 In 2013, defendant was convicted of direct criminal contempt and was sentenced to
10 years in prison for failing to testify against Evans. However, defense counsel told the trial court
at defendant’s resentencing hearing that this conviction had been vacated at some point.
¶ 21 Defendant’s mother, who was a minister in Georgia, completed a family
questionnaire as part of the presentence investigation for defendant’s resentencing. She indicated
she and defendant’s father were never married, and she raised defendant without any help.
Defendant’s mother represented that she parented defendant appropriately and successfully during
his younger years. For example, she answered that defendant was “not at all” a disciplinary
problem as a child or a teen, earned average grades, and never had any problems in school.
¶ 22 According to defendant’s mother, defendant encountered different circumstances
when he was 15 years old and moved to live with his father, who had 22 children. Defendant’s
mother lamented that it was the “biggest mistake of [her] life” to allow defendant to live with his
father. She did not specify the details of defendant’s time with his father. However, she was told
that defendant “was out to his own care” during that time.
¶ 23 Apparently referencing the fact that defendant was incarcerated at age 17,
defendant’s mother asserted in the questionnaire that defendant did not have the opportunity to
participate in extracurricular activities or to graduate from high school. (In another questionnaire
that is in the record, defendant’s mother responded that defendant participated in the Boys and
Girls Club.) She believed that defendant was “normal” when he was first incarcerated, but he
would need counseling after being “scared and mentally abused in the prison system.” Defendant’s
mother still had a “very open and supportive” relationship with defendant, “to the best of [her]
-7- ability.” She described defendant as a “very caring[,] compassionate person,” who was neither
violent nor aggressive.
¶ 24 Defendant’s 2010 presentence investigation report in connection with the original
sentencing hearing for murder was also submitted for the trial court’s consideration. This report
included additional information that shed light on defendant’s childhood. Throughout his
childhood, defendant “moved back and forth from his mother’s residence in Atlanta, Georgia to
his fathers [sic] in Peoria.” Defendant’s father had “an extensive criminal record in Peoria County.”
Defendant never attended a “ ‘regular’ ” high school, as “his father would not take the time to
enroll him.” Defendant had been living with his father in Peoria prior to being incarcerated for
murder. In 2008, defendant attended an adult education program, but he was soon dropped for
“insubordination.” Defendant reported having a “very close relationship with his mother.”
Although defendant loved his father, defendant reported that his father “ ‘was never there’ ” for
him. When defendant had lived with his mother, he attended church, participated in activities, did
chores around the house, and abided by a curfew. When defendant lived with his father, “he was
not required to do chores and he was not punished for misbehavior and no curfew was set.”
Defendant reported a history of using cannabis, but he denied using other drugs or alcohol.
¶ 25 The record includes multiple evaluations that defendant underwent during his
incarceration. These reports indicate no notable mental health issues.
¶ 26 F. Defendant’s Resentencing Hearing
¶ 27 On December 8, 2022, the matter proceeded to a resentencing hearing. The
sentencing range was 20 to 60 years in prison, and the trial court had the discretion to impose an
additional 15-year firearm enhancement. However, the parties agreed the court could not impose
a sentence exceeding defendant’s original sentence of 52 years in prison. The State presented no
-8- evidence in aggravation. Defendant presented testimony from Wendell Robinson, who described
his own work for an organization that helps people reacclimate to society after serving lengthy
prison sentences.
¶ 28 The trial court denied defendant’s request to introduce into evidence an “adverse
childhood experience questionnaire” that defendant completed. At defendant’s request, the court
admitted documentary evidence indicating that Evans was projected to be released from prison in
March 2033 pursuant to a negotiated plea deal. The prosecutor asked the court to sentence
defendant to 52 years in prison. Defense counsel requested 20 years in prison.
¶ 29 In his statement in allocution, defendant apologized to Dhingra’s family. Defendant
indicated he was “trying to get a second chance at life.” He believed that during his incarceration,
he had “become a rational person when it comes to being a cognitive thinker.” Defendant said that
if he were given “a second chance and an opportunity to get out sooner rather than later,” he could
prove his rehabilitation.
¶ 30 The trial court began its ruling by saying it considered (1) the presentence
investigation report, (2) the entire court file, (3) the evidence and arguments, (4) defendant’s
statement of allocution, (5) the statutory sentencing factors, including those relating specifically
to juvenile offenders, (6) defendant’s history and character, and (7) the nature and circumstances
of the offense.
¶ 31 The trial court then said the following about defendant’s childhood and upbringing:
“I’m just going to visit with you here for a few minutes and tell you that as
a human being it just really makes me sad when I see people like you who didn’t
have anybody to lean on when you were growing up. And that’s not your fault. It’s
-9- not. And is it any surprise that when you’re a kid, you’re going to act out in a way
that’s detrimental to you if nobody cares?
And maybe I’m being too hard on your parents, but just based upon what
I’ve read, they may have cared, but were pretty neglectful in my opinion of the
needs of you as a child and seen to it [sic] that you would have the opportunities
available to you by just looking after you and being sure that you were taken care
of and you had the opportunity to go to school and be with your peers and feel like
you had a safe, secure place to go home to.
And I want to make it clear to you that I recognize that that’s not your fault.
Period. And I’m sorry that that happened to you.
And having done this quite sometime [sic], it really makes me sad to see
young people sitting here in this position that really do bad things. And I wish it
would stop. I just wish that people would stop shooting each other and taking things
that don’t belong to them because you feel like it.”
¶ 32 The trial court then said that what defendant did was “really horrible,” and the court
had “to consider that a life was taken.” The court also considered that “it was planned.” Based on
what the court had heard, although defendant was “not the person” (i.e., he did not personally shoot
Dhingra), defendant was “along” and “should have known better.” The court understood that
defendant was “approximately 17 years and 166 days old” at the time of the offense, and the court
was “most certainly considering a young man of that age and behaving in that manner.”
¶ 33 The trial court also said it considered that because defendant “stopped going to
school in the eighth grade,” “the structure that school provides to young people was not in place”
- 10 - for him. The court stated that defendant had “behaved” while incarcerated. The court expressed
that it was “[g]ood” that defendant still intended to obtain his GED.
¶ 34 The trial court also mentioned that defendant had a juvenile record and that “a gun
was used in the offense.” The court explained it was “doing damage” for young people to use guns
in this community and across the country. The court added, “we can’t have young people running
around with guns” and shooting people.
¶ 35 After “considering all these things that I have just referenced,” along with its
discretion whether to impose a 15-year firearm enhancement, the trial court sentenced defendant
“to a total of 30 years” in prison. The court told defendant, “[I]t is my fondest hope that when you
get out that you take advantage of the resources that are available and make better decisions for
you.”
¶ 36 G. Motion to Reconsider Sentence and Notice of Appeal
¶ 37 Defendant moved to reconsider his sentence. In relevant portion, he argued that the
trial court erroneously denied his request for funds to hire an expert. He also argued that it was
fundamentally unfair for him to serve a 30-year sentence at 100% when Evans was serving a
28-year sentence at 85%. Defendant contended that his sentence was excessive and not in line with
the objective of restoring him to useful citizenship.
¶ 38 The trial court denied defendant’s motion to reconsider the sentence.
¶ 39 This timely appeal followed.
¶ 40 II. ANALYSIS
¶ 41 A. Request for Funds for an Expert
¶ 42 Defendant first argues that the trial court erred by denying his request for funds for
an expert. According to defendant, he was entitled to funds for an expert because (1) he was
- 11 - indigent and (2) an expert “was indispensable in proving the central issue at sentencing,”
defendant’s rehabilitative potential. Defendant maintains that his “rehabilitative capacity was
critical to determining whether, under Miller and its progeny, he could be resentenced to life in
prison without the possibility of parole.” As persuasive authority, defendant relies heavily on
United States v. Pete, 819 F.3d 1121 (9th Cir. 2016). Defendant requests for us to “vacate his
sentence and remand the matter for a new sentencing hearing, including the appointment of an
expert.”
¶ 43 The State responds that defendant inappropriately relies on eighth amendment
caselaw tracing its origins to Miller. According to the State, because defendant faced a
discretionary sentencing scheme where the minimum available sentence was 20 years in prison,
and because the trial court did not refuse to consider defendant’s youth, “defendant’s sentencing
complied with Miller and the Eighth Amendment.” The State acknowledges that the
nonapplicability of Miller does “not entirely resolve defendant’s claim,” as he also argues an expert
was necessary to weigh the statutory mitigating factors. The State proposes that the court correctly
denied defendant’s request for funds for an expert, as the materials available to the court for the
resentencing hearing contained “sufficient information about defendant’s youth and attendant
circumstances, as well as defendant’s rehabilitative potential.” The State further submits that any
error was harmless, as defendant was not prejudiced by the denial of access to an expert.
¶ 44 Section 113-3(d) of the Code provides:
“In capital cases, in addition to counsel, if the court determines that the defendant
is indigent the court may, upon the filing with the court of a verified statement of
services rendered, order the county Treasurer of the county of trial to pay necessary
- 12 - expert witnesses for defendant reasonable compensation stated in the order not to
exceed $250 for each defendant.” 725 ILCS 5/113-3(d) (West 2022).
Despite the language limiting this statute to capital cases, our supreme court has explained that “in
certain instances,” the policy underlying this statute “should be extended to noncapital felonies.”
People v. Watson, 36 Ill. 2d 228, 234 (1966). Additionally, the $250 statutory limit is not a strict
limit where reasonable fees exceed that amount. People v. Evans, 271 Ill. App. 3d 495, 500-01
(1995).
¶ 45 Aside from this statute, circumstances may arise where the United States
Constitution requires the State to facilitate an indigent defendant’s access to an expert. See Ake v.
Oklahoma, 470 U.S. 68, 74 (1985) ( “[W]hen a defendant has made a preliminary showing that his
sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires
that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot
otherwise afford one.”). The Illinois Constitution provides a similar right, “when the expertise
sought goes ‘to the “heart of the defense.” ’ ” People v. Keene, 169 Ill. 2d 1, 7 (1995) (quoting
People v. Lawson, 163 Ill. 2d 187, 221 (1994), quoting Watson, 36 Ill. 2d at 234).
¶ 46 Whether considered as a constitutional challenge or as a request pursuant to statute,
“a standard has evolved that there must be some showing that the requested expert assistance is
necessary in proving a crucial issue in the case and that the lack of funds for the expert will
therefore prejudice defendant.” Lawson, 163 Ill. 2d at 221. What is crucial differs from what is
merely “useful, helpful, valuable, or even important to the defense effort.” Keene, 169 Ill. 2d at 7.
“[W]hether the expertise sought is of that nature will vary with the circumstances of each case.”
Keene, 169 Ill. 2d at 7. “What is crucial to the defense effort is often made plain in taking account
of the inculpatory evidence offered.” Keene, 169 Ill. 2d at 8. We review for an abuse of discretion
- 13 - the trial court’s decision to deny a defense motion seeking funds for an expert. Lawson, 163 Ill. 2d
at 230. Under the abuse-of-discretion standard of review, we may reverse the judgment only if the
challenged decision is “ ‘arbitrary, fanciful, or unreasonable to the degree that no reasonable
person would agree with it.’ ” People v. Bush, 2023 IL 128747, ¶ 57 (quoting People v. Rivera,
2013 IL 112467, ¶ 37).
¶ 47 As an initial matter, we note that throughout his brief, defendant cites eighth
amendment caselaw tracing its origins to Miller. To be clear, the holding of Miller is not directly
applicable to this appeal, as defendant does not argue that his 30-year prison sentence violates the
eighth amendment. Additionally, defendant cites Holman, even though our supreme court
overruled that case before defendant filed his brief. See Wilson, 2023 IL 127666, ¶ 42.
¶ 48 Although defendant does not raise an eighth amendment challenge, section
5-4.5-105(a)(1)-(9) of the Unified Code contains the following mitigating factors derived from
Miller that a trial court must consider when sentencing someone for an offense committed as a
juvenile:
“(1) the person’s age, impetuosity, and level of maturity at the time of the
offense, including the ability to consider risks and consequences of behavior, and
the presence of cognitive or developmental disability, or both, if any;
(2) whether the person was subjected to outside pressure, including peer
pressure, familial pressure, or negative influences;
(3) the person’s family, home environment, educational and social
background, including any history of parental neglect, physical abuse, or other
childhood trauma;
- 14 - (4) the person’s potential for rehabilitation or evidence of rehabilitation, or
both;
(5) the circumstances of the offense;
(6) the person’s degree of participation and specific role in the offense,
including the level of planning by the defendant before the offense;
(7) whether the person was able to meaningfully participate in his or her
defense;
(8) the person’s prior juvenile or criminal history; and
(9) any other information the court finds relevant and reliable, including an
expression of remorse, if appropriate.” 730 ILCS 5/5-4.5-105(a)(1)-(9) (West
2022).
¶ 49 Defendant filed a motion seeking approximately $3000 of public funds to retain Dr.
Odimayo. Defendant submitted that “to properly develop all of the information required for the
court to consider” under the statutory sentencing factors relating to juvenile offenders, “the defense
is in need of the services of an expert in psychology to review the defendant’s history and
circumstances and to prepare a report for the court regarding the same.”
¶ 50 When defendant first presented this motion, the trial court questioned defense
counsel about the need for an expert, given that (1) counsel could address the relevant factors at
the sentencing hearing, (2) “[w]e’ve all read all the studies” about juvenile offenders, and (3) the
court had experience sentencing juvenile offenders. Defense counsel responded:
“Your Honor, I think it’s hard to say until, you know, an evaluation is done,
but I think specifically looking at the unique situation of my client’s childhood,
which may have contributed to his impetuosity, I think specifically knowing what
- 15 - I know about my client it would be, you know, he had a traumatic childhood, which
I know can affect, you know, frontal lobe development. So looking at the specifics
of his childhood and the home life that he lived at the time, which may have led
The court continued to doubt the need for an expert at the public’s expense, given that the court’s
experience had shown that offenders facing long prison sentences universally had terrible home
lives. The court offered defense counsel the opportunity to present additional information, beyond
“generalities,” at the next court date.
¶ 51 When the matter returned to court, defense counsel declined the opportunity to add
anything further in support of defendant’s motion. The prosecutor argued:
“Well, I guess just to sum up our position, Judge, is that those factors are
already codified and the reasons why are already codified as part of the—I guess
the legislative history behind that act. And so I don’t think there would need to be
funds for an expert to come explain those same things to you that are now required
The trial court agreed with the prosecutor and denied defendant’s request for funds.
¶ 52 Under the circumstances, we hold that the trial court did not abuse its discretion.
Again, “there must be some showing that the requested expert assistance is necessary in proving a
crucial issue in the case and that the lack of funds for the expert will therefore prejudice defendant.”
Lawson, 163 Ill. 2d at 221. Here, the court indicated its familiarity with the caselaw, statutory
factors, and studies pertaining to juvenile offenders. The court also gave defense counsel ample
opportunity to identify a concrete reason why an expert was necessary for defendant’s resentencing
hearing, and counsel arguably failed to do so.
- 16 - ¶ 53 The facts here are distinguishable from the cases defendant cites, where reviewing
courts determined that the defense required the assistance of an expert. In both Ake and Lawson,
the government relied on expert testimony, and the defense sought the assistance of an expert to
counter that evidence. See Ake, 470 U.S. at 73 (noting that at the defendant’s capital sentencing
hearing, the State relied on the opinions of its own psychiatrists, who had testified during the guilt
phase of the proceedings that the defendant was dangerous to society); Lawson, 163 Ill. 2d at 229-
30 (reasoning that the State possessed an unfair advantage where the trial court denied the defense
funds for an expert to counter the State’s expert, who offered the “strongest evidence” of the
defendant’s guilt). Unlike in Ake and Lawson, defendant did not request an expert to counter the
State’s expert evidence. Defendant also cites Watson, where our supreme court determined it was
error to deny funds to hire a handwriting expert who potentially could have demonstrated the
defendant’s innocence of a forgery charge. Watson, 36 Ill. 2d at 234. Watson is distinguishable, as
the present case does not involve expert testimony that could be dispositive of defendant’s
innocence. Defendant further cites Evans, where the defendant sought to present a defense
(battered woman syndrome) that could only be established through expert testimony. Evans, 271
Ill. App. 3d at 502. That is distinguishable from the present case, where the defense could argue
the relevant sentencing factors without the assistance of an expert.
¶ 54 Defendant relies most heavily on Pete. In Pete, the defendant was 16 years old in
May 2002, when he sexually assaulted and murdered a woman. Pete, 819 F.3d at 1124. In May
2003, a forensic evaluator interviewed the defendant in connection with the government’s petition
to transfer the case to adult court. Pete, 819 F.3d at 1125. The district court granted the
government’s transfer petition. Pete, 819 F.3d at 1126. The defendant was found guilty in 2005,
and the district court sentenced him to life in prison without parole. Pete, 819 F.3d at 1126.
- 17 - ¶ 55 In 2013, the district court granted the defendant’s motion for resentencing in light
of Miller. Pete, 819 F.3d at 1126. In advance of the resentencing hearing, pursuant to a federal
statute, the defendant requested funds to retain Dr. Marc Walter to assist him in pursuing mitigating
evidence. Pete, 819 F.3d at 1126. Given the passage of more than a decade since he had last been
evaluated, the defendant proposed that,
“Dr. Walter would conduct a comprehensive neuropsychological evaluation
which would let us know [the defendant’s] ‘mental age,’ whether he has any
cognitive dysfunction which could make him more suggestible or impair his
judgment, and whether he has any particular mental disorders which could have
played into his behavior.” Pete, 819 F.3d at 1126.
The defendant also contended that Dr. Walter could offer insight about the impact that
incarceration had on the defendant. Pete, 819 F.3d at 1126. The district court denied the
defendant’s motion, reasoning that (1) it was “ ‘difficult to conceive how’ ” the passage of time
would have affected the mitigating evidence already contained in the 2003 evaluation, (2) a second
evaluation would be duplicative of the first, and (3) the impact of incarceration was not mitigating
evidence. Pete, 819 F.3d at 1127. The district court sentenced defendant to 59 years in prison.
Pete, 819 F.3d at 1130.
¶ 56 The Ninth Circuit concluded that the district court abused its discretion by denying
the defendant’s request for funds for an expert. Pete, 819 F.3d at 1130. In determining that the
defendant had demonstrated that an expert was necessary, the court explained that the district court
erroneously discounted the relevance of updated information showing how the defendant had
changed since being incarcerated. Pete, 819 F.3d at 1130-33. With respect to the impact of the
defendant’s incarceration, the court further reasoned that a defense expert was necessary to rebut
- 18 - the State’s evidence that the defendant had behaved poorly in prison. Pete, 819 F.3d at 1133.
Moreover, according to the court, the defendant showed he was prejudiced by the denial of an
expert, because he “ ‘requested expert services in furtherance of a claim that would, if meritorious,
change the outcome of the case.’ ” (Emphasis omitted.) Pete, 819 F.3d at 1134 (quoting United
States v. Rodriguez-Lara, 421 F.3d 932, 947 (9th Cir. 2005)). On that point, the court reasoned
that the proposed expert could have (1) updated the court about the defendant’s mental status,
(2) placed the defendant’s prison record in context, and (3) potentially supported the defendant’s
position about his rehabilitative potential and the positive changes he had made since being
incarcerated. Pete, 819 F.3d at 1134. Because the district court was “skeptical, at best,” of the
defendant’s arguments at the resentencing hearing, an expert evaluation “was likely the only
Miller-related evidence that could possibly convince the district court that [the defendant] deserved
leniency.” Pete, 819 F.3d at 1134.
¶ 57 Pete is distinguishable from our case and does not compel a conclusion that the trial
court erred by denying defendant funds for an expert. In Pete, the district court’s analysis regarding
the need for an expert was skewed by an erroneous belief that the defendant’s personal growth and
maturation over more than a decade in prison were irrelevant at resentencing. Here, the court
operated under no similar mistake of law. Moreover, unlike in Pete, the State here did not rely on
defendant’s bad conduct while incarcerated as a basis for imposing a harsh sentence, so defendant
did not need an expert to counter such evidence and put the infractions into perspective.
Additionally, the prejudice to the defense of denying funds for an expert was more obvious in Pete,
as the district court ultimately rejected the defendant’s claims at the sentencing hearing and
sentenced him to 59 years in prison. Here, by contrast, the court expressly took account of
defendant’s youth at the time of the offense and his difficult upbringing. The court also sentenced
- 19 - defendant to 30 years in prison, which was 10 years more than the minimum sentence and far from
the maximum. Thus, unlike in Pete, this was not a situation where an expert would have been
defendant’s only chance to convince the court that he “deserved leniency.” Pete, 819 F.3d at 1134.
Furthermore, before denying defendant’s request for funds for an expert, the court here gave
defense counsel the opportunity to present additional information regarding the request, and
counsel declined that opportunity.
¶ 58 Having determined that Pete is distinguishable and the trial court did not abuse its
discretion, we need not consider People v. Arrieta, 2021 IL App (2d) 180037-U, ¶¶ 101-05, an
unpublished case the State cites in which the court deemed Pete unpersuasive in the context of a
plain error analysis.
¶ 59 B. Excessive-Sentence Claim
¶ 60 Defendant also argues that the trial court abused its discretion by inadequately
assessing his youth and its attendant circumstances, rendering his sentence excessive. Defendant
insists he preserved this issue by raising it in a postsentencing motion, even though he did not raise
a contemporaneous objection. Alternatively, defendant invokes the plain error doctrine. The State
responds that defendant forfeited this argument and failed to demonstrate plain error. As we will
explain, defendant has not shown any error, much less a “clear or obvious” one, as would be
required under the plain error doctrine. See People v. Hillier, 237 Ill. 2d 539, 545 (2010).
¶ 61 The Illinois Constitution provides that “[a]ll penalties shall be determined both
according to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. 1, § 11. “ ‘In determining an appropriate sentence, a defendant’s
history, character, and rehabilitative potential, along with the seriousness of the offense, the need
to protect society, and the need for deterrence and punishment, must be equally weighed.’ ” People
- 20 - v. Lawson, 2018 IL App (4th) 170105, ¶ 33 (quoting People v. Hestand, 362 Ill. App. 3d 272, 281
(2005)). The Unified Code specifies numerous “mitigating and aggravating factors that the trial
court must consider when determining an appropriate sentence.” People v. Klein, 2022 IL App
(4th) 200599, ¶ 35. Those factors are set forth in sections 5-5-3.1 and 5-5-3.2 (730 ILCS 5/5-5-
3.1, 5-5-3.2 (West 2022)). Section 5-4.5-105(a) (730 ILCS 5/5-4.5-105(a) (West 2022)) contains
additional factors that supplement, but do not replace, the normal sentencing provisions when the
offender was under 18 years of age at the time of the offense. People v. Merriweather, 2022 IL
App (4th) 210498, ¶ 31.
¶ 62 Not all statutory mitigating factors apply in every case. Merriweather, 2022 IL App
(4th) 210498, ¶ 31. “Moreover, the trial court need not articulate each factor it considers in
rendering the sentence for a juvenile offender, and that omission does not mean the trial court did
not consider all relevant factors.” Merriweather, 2022 IL App (4th) 210498, ¶ 31; see also People
v. Marks, 2023 IL App (3d) 200445, ¶ 61 (recognizing that failure to mention a sentencing factor
listed in section 5-4.5-105(a) “does not mean [the trial court] did not consider [the factor] as
important or relevant”). “Absent explicit evidence to the contrary, we also presume the court
considered all mitigating factors.” People v. Page, 2022 IL App (4th) 210374, ¶ 52.
¶ 63 The trial court has discretion to weigh the appropriate factors, and “[t]he appellate
court may not substitute its judgment for that of the trial court merely because it might have
weighed those factors differently.” Klein, 2022 IL App (4th) 200599, ¶ 37. Additionally, “a
reviewing court presumes that a sentence imposed within the statutory range provided by the
legislature is proper.” Klein, 2022 IL App (4th) 200599, ¶ 37. We may reverse a sentence within
the statutory range only if the trial court abused its discretion, which means that the sentence is
- 21 - “greatly at odds with the spirit and purpose of the law or is manifestly disproportionate to the
nature of the offense.” Klein, 2022 IL App (4th) 200599, ¶ 38.
¶ 64 When defendant was originally sentenced in 2010, his sentencing range was 35 to
75 years in prison (20 to 60 years in prison for first degree murder, plus a 15-year firearm
enhancement). Lindsey, 2013 IL App (3d) 100625, ¶ 57. At the resentencing hearing, defendant
had the benefit of section 5-4.5-105(b) of the Unified Code (730 ILCS 5/5-4.5-105(b) (West
2022)), which authorized the trial court to decline to impose a firearm enhancement because
defendant was under 18 years old at the time of the offense. The court resentenced defendant to 30
years in prison, which indicates the court exercised its discretion not to impose a firearm
enhancement.
¶ 65 The crime in this case was senseless, shooting repeatedly and killing an unarmed
gas station clerk during an attempted robbery. There was some evidence suggesting that defendant
might have been the shooter, but even if Evans was the shooter, defendant was legally accountable
for the murder.
¶ 66 Moreover, defendant had a history of criminality. As a juvenile, he was sentenced
to 2 years of probation and 30 days of detention for residential burglary. Defendant violated the
terms of his probation, and there was a warrant for his arrest when he committed the murder at the
gas station.
¶ 67 However, defendant was only 17 years old at the time of the murder, and he had a
difficult upbringing. Defendant apparently had a strong support system when he lived with his
mother in Georgia, but he faced much different circumstances in the two years before the murder,
when he went to live with his father. Defendant’s father clearly did not provide defendant with the
support, guidance, and stability that every child deserves.
- 22 - ¶ 68 The record shows that the trial court accounted for the totality of the circumstances
when concluding that a 30-year prison sentence was warranted. We recited the court’s comments
at length above, and we need not do so again. It will suffice to say that the court expressly said it
considered everything it should have, including the statutory sentencing factors relating to juvenile
offenders. In its ruling, the court also specifically addressed defendant’s youth, upbringing,
criminal history, and the nature of the offense. We cannot say that a 30-year prison sentence is
either “greatly at odds with the spirit and purpose of the law” or “manifestly disproportionate to
the nature of the offense.” Klein, 2022 IL App (4th) 200599, ¶ 38.
¶ 69 In arguing to the contrary, defendant proposes that the trial court (1) “did not
adequately consider” the relevant factors, (2) misapprehended “how to consider the effects of
youth and its attendant characteristics,” (3) “either disregarded factors, rendered them
insignificant, or, at its worst, used them as aggravating factors,” and (4) “made no note” of some
factors. Defendant scrutinizes the court’s comments and explains why he believes the court should
have weighed the mitigating factors differently. As part of this argument, defendant mentions that
Evans ultimately received a more lenient sentence than he did by pleading guilty to a lesser offense.
Defendant further contends that People v. McKinley, 2020 IL App (1st) 191907, “offers valuable
guidance in illustrating the court’s error.”
¶ 70 Defendant has not demonstrated an abuse of discretion. The trial court expressly
stated it considered the relevant statutory factors, and a court is under no obligation to articulate
its reasoning with respect to each factor. Merriweather, 2022 IL App (4th) 210498, ¶ 31. At heart,
defendant’s argument is a misguided plea for us to reweigh the applicable factors. The question
for our consideration is whether the court abused its discretion, “not whether this court or any other
court might have weighed the mitigating and aggravating factors differently.” (Emphasis in
- 23 - original.) Klein, 2022 IL App (4th) 200599, ¶ 42. The fact that Evans received a different sentence
by pleading guilty to a lesser offense does not change our analysis. “[A] sentence imposed pursuant
to a plea of guilty does not provide a valid basis of comparison to a sentence imposed subsequent
to trial and conviction.” People v. Moss, 205 Ill. 2d 139, 171 (2001).
¶ 71 Defendant relies on McKinley, a case in which the First District exercised its power
to reduce a 39-year prison sentence for a 16-year-old homicide offender. That case involved
unusual circumstances that are not present here, including that (1) the defendant presented
“overwhelming” evidence of his rehabilitation during incarceration, (2) the trial court made
comments at sentencing suggesting “a predisposition to punish certain types of offenders more
harshly,” and (3) the trial court improperly determined that a mitigating factor (the effect of peer
pressure) was an aggravating factor. McKinley, 2020 IL App (1st) 191907, ¶¶ 73, 80, 88. McKinley
does not support defendant’s argument that the court here abused its discretion.
¶ 72 III. CONCLUSION
¶ 73 For the reasons stated, we affirm the trial court’s judgment.
¶ 74 Affirmed.
- 24 -