NOTICE 2025 IL App (4th) 241436-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-24-1436 December 2, 2025 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County YARII A. MASSEY, ) No. 07CF561 Defendant-Appellant. ) ) Honorable ) John Casey Costigan, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Steigmann and DeArmond concurred in the judgment.
ORDER
¶1 Held: (1) Defendant was not entitled to a Krankel hearing (see People v. Krankel, 102 Ill. 2d 181 (1984)), as the alleged pro se claims of ineffective assistance of counsel were not raised until over 14 years after trial and defendant had the assistance of other counsel at trial, on direct appeal, and for postconviction review.
(2) Defendant, a juvenile at the time of the offenses, was not sentenced to a de facto life sentence. People v. Spencer, 2025 IL 130015, establishes the Illinois parole statute provides defendant a meaningful opportunity for release before a de facto life sentence would be served.
(3) Defendant received the mandatory minimum sentences for his offenses, rendering ineffectual his challenges to the trial court’s alleged improper consideration of sentencing factors and the alleged excessiveness of his sentence.
¶2 In 2008, defendant, Yarii A. Massey, was convicted by a jury of six counts of
aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1), (a)(2) (West 2006)) and three
counts of residential burglary (id. § 19-3(a)), crimes committed when he was 16 years old. He was sentenced to an aggregate term of 92 years in prison. After this court found, in 2020,
defendant’s 2008 sentence violated the eighth amendment’s prohibition of cruel and unusual
punishment (U.S. Const., amend. VIIII), we remanded for resentencing. People v. Massey, 2020
IL App (4th) 180651-U, ¶¶ 42, 72. In August 2024, defendant was resentenced to an aggregate
term of 76 years’ imprisonment.
¶3 On appeal, defendant argues (1) he was improperly denied a Krankel inquiry (see
People v. Krankel, 102 Ill. 2d 181 (1984)) when he raised pro se allegations of ineffective
assistance of counsel; (2) his 76-year sentence is unconstitutional, as the Illinois parole statute
fails to provide him a meaningful opportunity for release before he would serve a de facto life
sentence; (3) the trial court applied improper sentencing factors; and (4) his sentence is
excessive. We affirm.
¶4 I. BACKGROUND
¶5 A. Trial and Direct Appeal
¶6 In 2007, defendant was indicted on six counts of aggravated criminal sexual
assault against one victim, A.W. (720 ILCS 5/12-14(a)(1), (a)(2) (West 2006)) (counts I-III, VII-
IX), and three counts of residential burglary (id. § 19-3(a)) (counts IV-VI). In the burglary
charges, the State alleged three victims, including A.W., in three separate residences. The events
allegedly occurred over one night. After defendant was charged, the trial court appointed the
McLean County Office of the Public Defender to represent defendant. Assistant Public Defender
Ronald Lewis appeared on defendant’s behalf at court hearings until February 8, 2008, when
Lewis withdrew as counsel and Larry Spears, private counsel, entered his appearance. Spears
represented defendant through his trial and for his posttrial motions.
¶7 After the June 2008 jury trial, defendant was found guilty on all counts. The facts
-2- of this trial are set forth in detail in the order affirming defendant’s conviction and sentence.
People v. Massey, No. 4-08-0915 (May 11, 2010). According to the evidence, on May 26, 2007,
defendant repeatedly sexually assaulted A.W. in her residence, used a knife to threaten A.W.
during the assaults, and prevented A.W. from leaving as she attempted to flee. Defendant was
sentenced to a prison term of 92 years. On direct appeal, we affirmed defendant’s convictions
and sentence. Id.
¶8 B. Postconviction Claims and Remand for Resentencing
¶9 In June 2011, defendant filed a pro se petition for postconviction relief under the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). In this petition,
defendant asserted multiple ineffective-assistance-of-counsel claims. In September 2011, the trial
court advanced defendant’s pro se petition for second-stage proceedings under the Act and
appointed counsel, W. Keith Davis. Davis did not file an amended petition but moved to
withdraw as defendant’s postconviction counsel and filed a certificate pursuant to Illinois
Supreme Court Rule 651(c) (eff. Dec. 1, 1984). After multiple hearings, where the testimony of
two purported exculpatory witnesses was presented, and the filing of an amended petition for
postconviction relief, the trial court denied defendant’s postconviction petition.
¶ 10 Defendant appealed the denial of his postconviction petition, and this court
reversed and remanded for second-stage proceedings. We concluded Davis failed to comply with
Rule 651(c) when he abandoned defendant’s claims, and we remanded for the appointment of
new counsel. People v. Massey, 2015 IL App (4th) 130651-U, ¶¶ 31, 41.
¶ 11 On remand, Steven J. Weinberg filed, in December 2016, an amended petition for
postconviction relief on defendant’s behalf, asserting over 20 claims, including allegations trial
counsel provided ineffective assistance by failing to challenge false testimony, object to
-3- impermissible identification testimony, object to the improper admonishment of prospective
jurors, investigate and call exculpatory witnesses, call a medical witness to testify at trial, and
seek forensic testing of a knife and condom. In this amended petition, defendant further asserted
as he was 16 years old when the alleged crimes occurred, he had been impermissibly sentenced
to the functional equivalent of a life sentence. Defendant argued he was entitled to a new
sentencing hearing under Graham v. Florida, 560 U.S. 48, 82 (2010). The State moved to
dismiss defendant’s petition. The trial court granted the petition. Defendant appealed. On appeal,
this court found defendant’s 92-year sentence was prohibited by the eighth amendment and, on
March 3, 2020, remanded for resentencing. Massey, 2020 IL App (4th) 180651-U, ¶¶ 42, 72.
¶ 12 C. Remand for Resentencing
¶ 13 1. Motion to Dismiss Counsel
¶ 14 On May 14, 2020, the McLean County Office of the Public Defender was
appointed to represent defendant on resentencing. Mackenzie Frizzell, an assistant public
defender, began appearing for defendant in November 2022.
¶ 15 On January 6, 2023, defendant filed a pro se “Motion to Dismiss Counsel Frizzell
MacKenzie and Ron Lewis,” both attorneys with the public defender’s office. In his motion,
defendant alleged he met Lewis in 2007 and “Lewis is one of the worst Attorneys [he had] ever
had from the Public [Defender’s] office in McLean County.” Defendant alleged the following:
“On one of [defendant’s] last visits in 2008 with Ron
Lewis[,] Mr. Lewis stated to [defendant] to take a deal of 12 years.
Mr. Lewis stated to [defendant] that he would be back to visit
[him] in three weeks and that [defendant] had to take the 12
years[.] [O]n [defendant’s] last visit[,] Mr. Lewis stated he did not
-4- have much time to visit with [defendant]. So what is my decision.
[Defendant] stated to counsel Ron Lewis that [he] would take the
deal of 12 years as a plea. Counsel Ron Lewis stated to [defendant]
after [defendant] agreed to 12 years that he [knew] that he stated
12 years on [their] last visit but he [knew] that he could get
[defendant] 15 years. As a deal to plea[d] to. [Defendant] stated to
Ron Lewis that [he] told[defendant] to take 12 years [and] now
that [defendant] agreed to the deal now [Lewis was] asking
[defendant] to take 15 years. Before [Lewis] could speak
[defendant] walked away[.] [Defendant] called for the [correctional
officers] to take [him] back to [his] unit. [Defendant] called [his]
mother and told her that [Lewis] is playing [him][.] [O]n
[defendant’s] next court Date[,] paid counsel Larry J. Spears was
there to take [Lewis] off [defendant’s] case. For counsel’s lies[,]
[defendant] ended up with 92 years for going to trial.
[Defendant] asked [Lewis] on December 2nd 2022 for [an]
affidavit as to the plea Agreement *** to show the court that [he]
tried to do the right thing and take a plea of 12 years that was told
to [him] to take by [Lewis]. ***
[Defendant] had great hopes of working with [Frizzell] but
before [he] could go on to new [topics,] [Frizzell] stated that she
agreed with [Lewis] in him not [giving defendant an] affidavit.
[F]or that reason alone[,] [Frizzell] cannot be on [defendant’s]
-5- case.”
Defendant, stating he did not feel safe with the public defender, asked to proceed pro se.
Defendant further listed additional allegations of ineffective assistance:
“Outside of counsel Ron Lewis lying about Plea[,] counsel never
investigated witnesses that was stated to him by [defendant],
counsel [kept] taking continuance[s] for the state knowing
[defendant] asked for a speedy trial ***, counsel never put in
[pretrial motions] that would have been helpful to [defendant’s]
case like separating the Residential Burglary charges, [getting] the
weapon dismissed, and [letting the] court know that [defendant]
did not have a Gerstein hearing (see Gerstein v. Pugh, 420 U.S.
103 (1975))] within 48 hours of [his arrest].”
¶ 16 After a hearing, the trial court granted defendant’s motion, and defendant, for a
time, proceeded pro se. On October 18, 2023, defendant asked for the reappointment of the
public defender as his counsel. The court granted defendant’s request. Frizzell represented
defendant through sentencing.
¶ 17 2. Defendant’s Sentencing
¶ 18 On August 5, 2024, the sentencing hearing began with the reading of A.W.’s
victim impact statement. The statement described the resulting impact of the offenses, including
suicide attempts, psychological disorders, nightmares, and other parenting, financial, and health
challenges.
¶ 19 In mitigation, defendant presented the stipulated testimony of Danielle Nesi, PhD,
which we summarize briefly here. Dr. Nesi holds a doctorate in developmental psychology. Dr.
-6- Nesi conducted a forensic developmental analysis of defendant and tendered her report. In
summary, defendant reported his childhood was riddled with physical and emotional abuse.
Defendant’s mother verbally assaulted him daily, telling him routinely to “ ‘stop acting like a
bitch,’ ” and had once beaten him in the head with a belt buckle, causing injuries requiring
hospital treatment. Defendant’s mother beat him with other items, such as mops and shovels.
Defendant’s grandmother, with whom defendant resided in Chicago at age 9 or 10, was addicted
to crack cocaine. Defendant also endured pervasive sexual molestation, beginning at age four. At
age 10, defendant was raped by a 35-year-old woman. Defendant began drinking at age 10. He
used cannabis at age 13. His grandmother died when he was 16, leading defendant to use
cannabis to dull his pain. Dr. Nesi’s testing revealed defendant experienced more different types
of childhood trauma than over 99.7% of all children and over 99% of all juvenile offenders.
¶ 20 Upon his imprisonment, defendant received mental-health treatment. Dr. Nesi
opined defendant had developed positive coping skills. She concluded defendant had begun to
understand his trauma and vulnerability. Defendant had engaged in anti-violence training, role
modeling, and artistic expression. He had also enrolled in a “correspondence Sex Addicts
Anonymous program.” He was on waiting lists for employment at the prison.
¶ 21 In aggravation, the State emphasized the facts from the trial. The State also noted
defendant had eight in-custody disciplinary tickets, with his last segregation order in 2014. None
of the tickets involved violence.
¶ 22 Defendant made a statement in allocution. Defendant said to A.W., his family,
and the courtroom, “I apologize for my actions.” He stated this “is my fault, period.” Defendant
repeatedly apologized, stating:
“I know that’s like just easy to just say sorry, but I don’t know
-7- every act that I did to that person. I don’t. I, period, I do not know.
But the State stated that I did A, B, C, D, I apologize for each and
every one of them things.”
¶ 23 On August 7, 2024, the trial court announced its decision. The court stated it
considered the Miller v. Alabama, 567 U.S. 460 (2012), factors in making its decision and noted
it understood Graham and other cases that addressed juvenile sentencing. The court noted the
harm to A.W. and the community. The court observed defendant had, while awaiting trial,
committed offenses, in 2007, such as a fight, threatening staff, coordinating a gang attack, and, in
2008, assault and battery. Eight disciplinary reports had been filed against defendant while he
was in the Illinois Department of Corrections. The court observed it considered deterrence and
stated it was important to let defendant and others know the offenses would not be tolerated. The
court observed defendant was on probation when the offenses occurred. As to mitigation, the
court noted only one prior adjudication, a burglary when defendant was 16. The court found his
criminal record was not significant. The court agreed Dr. Nesi had the credentials to be qualified
as an expert but found her report had undertones of bias toward juvenile sentencing laws. The
court believed Dr. Nesi’s report advocated on defendant’s behalf rather than acted as fact-based
opinion. The court concluded some information provided by defendant was relevant to his
sentencing, and the court considered that information when imposing his sentence.
¶ 24 The trial court found defendant was behind intellectually. Defendant suffered
learning disabilities and had been enrolled in special education. The court acknowledged
defendant’s childhood trauma and understood defendant’s father was not present in defendant’s
childhood. The court believed “the cognitive and developmental disability as a result of”
defendant’s tough childhood “is an accurate assessment.” The court further stated:
-8- “[T]hat being said, I am also convinced that you knew the
difference between right and wrong. I’m convinced that you knew
it was wrong to break into Mr. Pulletikurti’s and Ms. Stringwell’s
home in the middle of the night and commit the offense of
residential burglary. Yet, it didn’t stop there. You then moved on
to A.W.’s home. Here, the evidence shows that you broke into the
home, and there was well over an hour to where multiple sexual
assaults took place, several of where A.W. had a dangerous
weapon, a knife, at her throat and body with her being threatened
with her life or sexual assault. Even if a person had experienced
sexual abuse growing up as a child, I’m convinced that that
conduct does neither justify nor explain the wrong that was
committed in this particular case.
I understand that young adults and adolescents act
impulsively. I completely get that. This is especially true when
they have been subjected to childhood trauma. The White Paper
shows that. The forensic analysis shows that. The White Paper
shows that adolescent brain decisionmaking—that adolescent brain
development and decisionmaking and understanding of
consequences continues to develop after someone is 18 years old.
As a matter of fact, in males it goes up to 26 years old, according
to a number of studies. And I have seen this adolescent impulsivity
in a number of cases that I have had. Again, not comparing
-9- anything with regard to this case, but usually it’s a situation to
where adolescents get into an argument or a fight, and one pulls
out a gun and shoots and kills the other. An impulsive decision not
thinking about their actions or the consequences of their actions.
Another lesser example, a youth sees an unlocked bike and hops on
it and steals it. An impulsive decision that otherwise may not have
been made as an adult. But, in this case, there was nothing
impulsive about the acts. Two residential burglaries that occurred
inside homes. Perhaps an argument could be made for impulsive
nature for these particular allegations or crimes that were
committed.
But, again, it doesn’t stop there. There’s break-ins into
A.W.’s home, and he stays there more than an hour, well in
upwards of an hour. Multiple assaults take place. There’s nothing
impulsive about this. I’m convinced that age had little to nothing to
do with this particular crime. A person 16 years old 6 months 15
days, even with cognitive deficits, learning disability, and a history
of trauma is going to know the criminality of his acts and the
potential consequences that result from this particular crime.”
¶ 25 The trial court believed defendant had taken a degree of accountability for his
actions. The court believed it had discretion under section 5-4.5-105 of the Unified Code of
Corrections (Unified Code) (730 ILCS 5/5-4.5-105 (West 2024)) to apply the dangerous weapon
enhancement in sections 12-14(a)(1), (d)(1) of the Criminal Code of 2012 (Criminal Code) (720
- 10 - ILCS 5/12-14(a)(1), (d)(1) (West 2006)) and ordered the enhancement imposed. On counts I, II,
VII, and IX, the aggravated criminal sexual assault charges involving a knife, the court sentenced
defendant to consecutive sentences of 16 years; on counts III and VIII, the aggravated criminal
sexual assault charges not involving a knife, the court sentenced defendant to consecutive terms
of 6 years. On counts IV through VI, the residential burglary counts, the court imposed sentences
of four years and ordered those to run concurrently with each other and with the sentences for
aggravated sexual assault.
¶ 26 This appeal followed.
¶ 27 II. ANALYSIS
¶ 28 A. No Krankel Hearing Is Required
¶ 29 Defendant asserts the trial court erred by not conducting a Krankel inquiry when
he made posttrial ineffective-assistance-of-counsel claims. Defendant points to his December
2022 pro se motion, filed in January 2023, in which he asked to represent himself. In that
motion, defendant alleged ineffectiveness of his attorneys. Defendant contends, due to those
allegations, this court should remand and order a hearing pursuant to Krankel.
¶ 30 The State counters no Krankel hearing is necessary, as defendant’s motion did not
clearly articulate an allegation of counsel’s ineffectiveness. The State further contends
defendant’s motion made allegations as to Lewis’s and Frizzell’s representation and defendant
had the benefit of representation by other attorneys, thereby making an appointment of counsel
under Krankel unnecessary.
¶ 31 To prompt a Krankel inquiry, a pro se defendant need only bring his or her claim
to the attention of the trial court. People v. Roddis, 2020 IL 124352, ¶ 35. When such a claim is
made, the court must first examine the factual basis underlying the claim. Id. If the court finds
- 11 - the claim lacks merit or pertains only to trial strategy, it need not appoint new counsel. Id. New
counsel should be appointed, however, when the allegations show possible neglect of the case.
Id. We review de novo whether a Krankel inquiry was properly conducted. People v. Jolly, 2014
IL 117142, ¶ 28.
¶ 32 All the cases cited by defendant in support of his allegation a Krankel hearing was
triggered involve pro se claims of counsel’s ineffectiveness made posttrial and before the direct
appeal. See Roddis, 2020 IL 124352, ¶ 1; People v. Moore, 207 Ill. 2d 68, 70 (2003); People v.
Patton, 2022 IL App (4th) 210561, ¶ 2; In re T.R., 2019 IL App (4th) 190051, ¶ 25; People v.
Peacock, 359 Ill. App. 3d 326, 329 (2005). The purpose of a Krankel hearing is “to facilitate the
trial court’s full consideration of a defendant’s pro se claims of ineffective assistance of trial
counsel and thereby potentially limit issues on appeal.” Jolly, 2014 IL 117142, ¶ 29. Defendant
has cited no case law supporting his contention a Krankel hearing is required when pro se
ineffective-assistance-of-trial-counsel claims are raised over 14 years after counsel’s
representation ended and after the resolution of the direct appeal, the filing of a pro se
postconviction petition, and two amended postconviction petitions. Moreover, the allegations
that allegedly triggered a Krankel inquiry involve an attorney, Lewis, who was replaced by
private counsel in February 2008, four months before trial. Defendant also had different counsel
for his appeal, and different counsel was appointed on his postconviction claims; those attorneys
raised ineffective-assistance-of-counsel claims on defendant’s behalf.
¶ 33 The only conduct defendant mentioned in his pro se letter that did not pertain to
Lewis’s pretrial representation is Frizzell’s agreement with Lewis’s decision not to file, in late
2022, an affidavit regarding the alleged plea deal offered to defendant in 2007. For that claim
and his claims against Lewis, defendant acquired the relief he sought—the dismissal of the
- 12 - public defender and the opportunity to proceed with sentencing pro se.
¶ 34 In these circumstances, no Krankel inquiry was required.
¶ 35 B. The Parole Review Statute Precludes Defendant’s Sentence From Being a De Facto Life Sentence
¶ 36 Defendant argues, as he was a minor when the offenses were committed, under
Graham, 560 U.S. at 75, 82, he cannot serve an over-40-year term for nonhomicide crimes
without a “meaningful opportunity” for release. Defendant maintains Illinois’s parole scheme
does not provide for judicial review, thereby denying him the constitutionally required
“meaningful opportunity” for release. More specifically, defendant contends the Prisoner Review
Board “can deny parole despite even the greatest maturity, rehabilitation, and reform,” as parole
in Illinois is not a right. Defendant acknowledges the Prisoner Review Board must consider
rehabilitation and the diminished capacity of youthful offenders (730 ILCS 5/5-4.5-115(h) (West
2024)), but he contends the board may give such factors no weight. Particularly troubling to
defendant is the fact the Prisoner Review Board must deny release if that release would
deprecate the seriousness of the offense (see id. § 5-4.5-115(j)). Defendant, citing laws from
other states, further emphasizes Illinois has one of the harshest parole statutes in the country,
giving fewer opportunities for youthful offenders to seek parole than almost any other state. For
example, defendant emphasizes he must wait at least 20 years before he is eligible for parole (id.
§ 5-4.5-115(b)). And, if he fails to obtain parole on his first attempt, he must wait 10 years before
seeking a second and final review (id. § 5-4.5-115(m)). Defendant highlights “all but one of the
46 states with parole systems require or allow unlimited parole reviews.” (Emphasis in original).
¶ 37 The State counters by relying on an Illinois Supreme Court decision filed just one
week after defendant filed his opening brief: People v. Spencer, 2025 IL 130015. The State
contends Spencer, which held the Illinois sentencing scheme allowed its defendant a meaningful
- 13 - opportunity to obtain release before he spent 40 years in prison, is controlling and defeats
defendant’s claim.
¶ 38 In his reply brief, defendant distinguishes Spencer by emphasizing the Spencer
defendant was 20 years old at the time of his offense and the Spencer holding was based on an
alleged violation of Illinois’s proportionate penalties clause (Ill. Const. 1970, art. I, § 11) and not
on the eighth amendment (U.S. Const., amend. VIII), as alleged here. Spencer, 2025 IL 130015,
¶ 1. Defendant continues to maintain the Illinois parole scheme does not provide him, a
nonhomicide offender, a “meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation” (Graham, 560 U.S. at 75) to comply with the eighth amendment’s
prohibition of cruel and unusual punishment.
¶ 39 Spencer concerns a defendant who, at the age of 20, committed first degree
murder, attempted murder, and home invasion in 2012 and was sentenced to 100 years’
imprisonment. Spencer, 2025 IL 130015, ¶ 1. On appeal, the Spencer defendant asserted his
sentence, as applied to him, violated the proportionate penalties clause of the Illinois
Constitution because his sentence amounted to a de facto life sentence. Id. He further asserted
the imposition of his sentence, without consideration of the Miller youth-based sentencing
factors in mitigation, violated the proportionate penalties clause because, in part, Illinois’s parole
statutory scheme fails to provide a meaningful opportunity for parole and does not preclude his
claim that his sentence is unconstitutional. Id. ¶ 23.
¶ 40 In addressing the defendant’s claim, the Spencer court first summarized Miller
and found it did not apply to the defendant, as he was an emerging adult. Id. ¶ 32. As the Court
explained, in Miller, the United States Supreme Court held the eighth amendment bars a
sentencing scheme that requires a juvenile offender to serve life in prison without the possibility
- 14 - of parole. Id. ¶ 29 (quoting Miller, 567 U.S. at 479). The Miller court had done so, the Spencer
court summarized, due to the fact juveniles differ from adults constitutionally in sentencing and,
by making a juvenile offender’s age and its attendant circumstances irrelevant, mandatory life-
without-parole sentencing schemes pose “ ‘too great a risk of disproportionate punishment.’ ” Id.
(quoting Miller, 567 U.S. at 479). The Spencer court concluded, while Miller does not prohibit
life sentences for juveniles, Miller found the eighth amendment requires sentencing courts to
have discretion to sentence juveniles to life sentences after considering their youth and its
attendant characteristics. Id. ¶ 30. Regarding the eighth amendment’s application to 20-year olds,
the court further concluded “Miller only applies to juveniles and does not apply to emerging
adults.” Id. ¶ 32.
¶ 41 The Spencer court then turned to the defendant’s claim under the proportionate
penalties clause and found Illinois’s parole review statute precluded it. See id. ¶ 40. The court
“recognized the science that helped form the basis for the Miller decision may assist emerging
adult defendants in supporting an as-applied, proportionate penalties clause challenge” and
emerging adults often argued their challenges were de facto life sentences. Id. ¶ 34 (citing People
v. Harris, 2018 IL 121932, ¶ 46). The court quoted, in part, the parole review statute that
provides parole review for youthful offenders under the age of 21, including the statute’s
mandate the Prisoner Review Board panel consider “ ‘the diminished culpability of youthful
offenders, the hallmark features of youth, and any subsequent growth and maturity of the
youthful offender during incarceration.’ ” Id. ¶ 36 (quoting 730 ILCS 5/5-4.5-115(j) (West
2020)). The court concluded, because the defendant met the criteria under the statute to be
eligible for parole review after serving 20 years of his sentence (730 ILCS 5/5-4.5-115(b) (West
2020)), the applicable sentencing scheme allowed him a meaningful opportunity to obtain release
- 15 - before spending 40 years in prison. Spencer, 2025 IL 130015, ¶ 40. The court found defendant
was not sentenced to a de facto life sentence. Id.
¶ 42 In his reply brief, defendant urges this court not to apply Spencer to his eighth
amendment claims. Defendant argues Spencer does not apply, as it involves a proportionate
penalties claim by an emerging adult, not a juvenile offender. Defendant contends, under the
eighth amendment, Illinois’s parole sentencing scheme does not provide a meaningful
opportunity for early release. We are not persuaded.
¶ 43 In finding the Spencer defendant was not sentenced to a de facto life sentence
because he was afforded a meaningful opportunity for release before serving 40 years in prison,
the Illinois Supreme Court relied on eighth amendment case law. See id. ¶¶ 35, 37 (citing People
v. Dorsey, 2021 IL 123010, ¶¶ 39, 50, 62; People v. Buffer, 2019 IL 122327, ¶ 40; People v.
Reyes, 2016 IL 119271, ¶ 10). The evolution of the considerations applicable to the
determination of what is, in fact, a de facto life sentence finds its roots in eighth amendment case
law. The Graham court, which concluded nonhomicide juvenile offenders could not be
sentenced to life without parole and must be afforded “some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation,” is an eighth amendment case. See
Graham, 560 U.S. at 75. Miller concluded the eighth amendment bars sentencing schemes that
mandate life imprisonment without the possibility of parole for juvenile offenders. Miller, 567
U.S. at 479. In Reyes, 2016 IL 119271, ¶¶ 9-10, the Illinois Supreme Court extended Miller to
find “mandatory, de facto life-without-parole sentence[s],” i.e., sentences that are the functional
equivalent of life sentences without the possibility of parole, were unconstitutional under the
eighth amendment. Buffer, 2019 IL 122327, ¶ 40, another eighth amendment case involving a
juvenile offender, defined a de facto life sentence under Illinois law as a prison sentence of 40
- 16 - years or more. Further, in Dorsey, 2021 IL 123010, ¶¶ 64-65, the supreme court concluded a
sentence that allowed the defendant to earn day-for-day credit provided the defendant with a
meaningful opportunity for release after he served 38 years in prison, which was less than a
de facto life sentence, and did not violate the eighth amendment. Spencer’s holding is grounded
in the eighth amendment. Defendant has provided no convincing reason not to apply it to his
eighth amendment claim.
¶ 44 We find Spencer’s holding defeats defendant’s claim his 76-year sentence violates
the eighth amendment and Miller. As in Spencer, defendant, who was sentenced in 2024, is
eligible for parole after serving 20 years. See 730 ILCS 5/5-4.5-115(b) (West 2024).
¶ 45 As to defendant’s challenges to the specific provisions of the parole scheme, such
as the limit on the number of parole petitions that may be applied, Spencer does not explicitly
address those challenges. However, similar challenges were asserted and rejected in the Second
District in People v. Cavazos, 2023 IL App (2d) 220066, ¶¶ 50-60. Spencer cites Cavazos as one
of four cases that have held Illinois’s parole statute provides a meaningful opportunity for release
before a de facto life sentence would be served. Spencer, 2025 IL 130015, ¶ 39 (citing Cavazos,
2023 IL App (2d) 220066, ¶ 60). As the Spencer court was aware of Cavazos when it rejected the
argument the Illinois parole statute did not provide the Spencer defendant a meaningful
opportunity for parole, we will not revisit those same arguments as a challenge to Spencer’s
holding.
¶ 46 C. Defendant’s Sentence to the Minimum Term Statutorily Allowed Precludes His Argument the Trial Court Considered Improper Sentencing Factors
¶ 47 Defendant argues the trial court applied improper sentencing factors in imposing
his 76-year sentence. Defendant contends the court misapplied Miller’s impulsivity factor (see
- 17 - 730 ILCS 5/5-4-5-105(a)(1) (West 2024)), asserting impulsivity is not “split-second conduct.”
He argues “impulsivity” is an inability to exercise self-control, consider alternative courses of
action, and consider consequences and his conduct, which consisted of a spate of burglaries and
sexual assaults in a one-night crime spree spanning approximately two blocks, falls within this
definition. Defendant further contends the court erred in stating deterrence is always a factor in
sentencing instead of applying discretion in applying the factor to his specific circumstances.
Defendant last argues, in considering improper factors, the court “conflated insanity and Graham
law.” Pointing to the court’s statement defendant’s age did not prevent him from knowing the
criminality of his acts, defendant urges “ ‘knowing the criminality’ ” is not a Miller or Graham
factor but part of the insanity test.
¶ 48 The State counters by emphasizing defendant’s minimum sentence precludes any
relief for any alleged consideration of improper sentencing factors or a reduction in his sentence.
In support, the State points to People v. Scott, 2015 IL App (4th) 130222, ¶¶ 53-54, and People
v. Bourke, 96 Ill. 2d 327, 332 (1983).
¶ 49 In Scott, this court relied on Bourke and found remand for a sentencing court’s
consideration of an improper sentence factor is not automatically warranted. Scott, 2015 IL App
(4th) 130222, ¶ 53 (citing Bourke, 96 Ill. 2d at 332). According to our supreme court in Bourke,
when it can be determined from the record “the weight placed on the improperly considered
aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is
not required.” Bourke, 96 Ill. 2d at 332. It follows, if the minimum statutorily required sentence
is imposed, the sentence was not affected by an improperly considered aggravating factor.
¶ 50 The record shows defendant was sentenced to the minimum sentence mandated
by statute. Each of the aggravated criminal sexual assault convictions were for Class X felonies,
- 18 - with determinate sentences of 6 to 30 years. 730 ILCS 5/5-4.5-25 (West 2024). Counts I, II, VII,
and IX alleged violations of section 12-14(a)(1) of the Criminal Code (720 ILCS 5/12-14(a)(1)
(West 2006)). For those counts, subsection (d)(1) mandates an additional 10 years be applied to
the sentence due to defendant’s use of a knife during the commission of aggravated criminal
sexual assault (id. § 12-14(d)(1)). Counts III and VIII allege aggravated criminal sexual assault
but contain no mention of the use of a knife (id. § 12-14(a)(2)). For those counts, defendant was
sentenced to the minimum of six years. Under section 5-8-4(d)(2) of the Unified Code(730 ILCS
5/5-8-4(d)(2) (West 2024)), the aggravated criminal sexual assault counts must be served
consecutively. The residential burglary convictions, Class 1 felonies, have a sentencing range of
4 to 15 years in prison (id. § 5-4.5-30), which the trial court ordered served concurrently with the
sentences for aggravated criminal sexual assault (id. § 5-8-4(a)(i)). The mandatory minimum
defendant could be sentenced is 76 years, which is the sentence he received.
¶ 51 We note the record shows the trial court believed it had discretion on whether to
impose the 10-year enhancement on the aggravated criminal sexual assault charges:
“[T]he Court understands that the Illinois legislature, since the last
sentencing, has taken certain steps to address juvenile sentencing
and what the Court should consider. 730 ILCS 5/5-4.5-105 codifies
the Miller factors. It became effective last month, the beginning of
July of this year. The Court has the discretion under this statute to
decide to decline whether to impose any sentencing enhancements
based upon that statute, the new statute that was just enacted.”
When pronouncing the sentence, the court expressly decided to impose the sentencing
enhancement.
- 19 - ¶ 52 There is, however, no language in section 5-4.5-105 that grants a sentencing court
discretion regarding whether to impose the additional 10 years in section 12-14(d)(1) of the
Criminal Code (720 ILCS 5/12-14(d)(1) (West 2006)) for violations of section 12-14(a)(1) (id.
§ 12-14(a)(1)). Nor does section 5-4.5-105 give discretion to sentencing courts to apply
enhancements mandated under the differently numbered section for aggravated criminal sexual
assault in the Criminal Code (720 ILCS 5/11-1.30(a)(1), (d)(1) (West 2024)). Section 5-4.5-105
allows the court, when sentencing an offender under the age of 18, discretion in applying firearm
enhancements: “the court *** may, in its discretion, decline to impose any otherwise applicable
sentencing enhancement based upon firearm possession, possession with personal discharge, or
possession with personal discharge that proximately causes great bodily harm, permanent
disability, permanent disfigurement, or death to another person.” 730 ILCS 5/5-4.5-105(e) (West
2024). It also allows sentencing courts to “depart from any *** sentencing enhancement” when
“the individual against whom the person is convicted of committing the offense previously
committed a crime under [sections involving offenses such as trafficking and aggravated
criminal sexual assault] against the person within 3 years before the offense in which the person
was convicted.” Id. § 5-4.5-105(c)(2). Defendant did not use a firearm in the offenses, and
defendant was not a victim of an offense by A.W.
¶ 53 In his reply brief, defendant does not dispute the State’s contention his sentence
was the statutory minimum he could receive, nor does defendant argue the trial court had
discretion to impose the enhancements. Defendant’s sole response to the State’s contention his
sentence to the statutory minimum precludes his claim is to state Graham governs his sentencing
and under Graham, a sentencing court has discretion to go below the statutory minimum when
sentencing a juvenile offender. To support this contention, defendant cites Jones v. Mississippi,
- 20 - 593 U.S. 98, 111-12 (2021), Miller, 567 U.S. at 466-67, and Reyes, 2016 IL 119271, ¶¶ 7-10.
¶ 54 However, neither Graham, Jones, Miller, nor Reyes supports defendant’s
contention a sentencing court may ignore statutory minimums when sentencing juveniles. At
best, these cases establish statutory minimums may be ignored when the sentences imposed on
juveniles violate the eighth amendment. Here, we have found defendant’s sentence complies
with Miller and the eighth amendment. The sentencing court thus had no authority to sentence
defendant below the minimum set by our legislature. See generally, People ex rel. Smith v.
Tobin, 2025 IL 131213, ¶¶ 13, 27 (finding the imposed jail sentence below the statutory
minimum and issuing a writ of mandamus directing a new sentence in compliance with the
Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2024)).
¶ 55 Because defendant’s sentence is the minimum mandated by law, defendant cannot
prove his sentence was affected by improper sentencing factors. Remand is unnecessary.
¶ 56 D. Defendant’s Sentence to the Minimum Term Statutorily Allowed Precludes His Argument His Sentence is Excessive
¶ 57 Defendant further challenges his sentence by arguing it is excessive. Given the
existence of mitigating factors such as his horrific childhood (730 ILCS 5/5-4.5-105(a)(3) (West
2024)), his credible statement in allocution (id. § 5-4.5-105(a)(12)), and his efforts at
rehabilitation, demonstrating rehabilitative potential (id. § 5-4.5-105(a)(4)), defendant maintains
he should be resentenced. Alternatively, he requests the reduction of his sentence to 40 years.
¶ 58 As to defendant’s excessiveness claim, the State asserts two arguments. First, the
State maintains defendant forfeited the argument by not raising it in his motion to reconsider his
sentence. Second, the State maintains we should deny plain-error review, as defendant received
the minimum sentence required by law and, therefore, a reduction in the allegedly excessive
sentence is not possible.
- 21 - ¶ 59 “[T]o warrant plain-error review, an error at sentencing must be ‘sufficiently
grave that it deprived the defendant of a fair sentencing hearing.’ ” Scott, 2015 IL App (4th)
130222, ¶ 52. Here, any alleged error was not grave, as it had no effect on defendant’s sentence.
The law required defendant be sentenced to a minimum of 76 years in prison. He was not
sentenced to one day greater than that. Defendant cannot obtain any relief on his excessive-
sentence claim.
¶ 60 III. CONCLUSION
¶ 61 We affirm the trial court’s judgment.
¶ 62 Affirmed.
- 22 -