2021 IL App (1st) 192507-U
SIXTH DIVISION March 12, 2021
No. 1-19-2507
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 14836 ) RASAAN PRICE, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court. Presiding Justice Walker and Justice Oden Johnson concurred in the judgment.
ORDER
¶1 Held: Where the circuit court’s comments on remand raise serious concerns regarding the fairness of the hearing it ultimately conducted, the court’s determination that the defendant in this case, who was 15 years old at the time of his crime, should be sentenced as an adult is reversed. Defendant’s sentence is vacated, and this case is remanded to another judge for a hearing on the State’s petition for sentencing in criminal court that is free from the perception that the circuit court judge’s hostility toward this court’s mandate played any role in the outcome of that hearing.
¶2 Defendant Rasaan Price was charged with first degree murder committed when he was 15
years old. Under the law applicable at that time, the adult criminal court had exclusive jurisdiction
over his case. 705 ILCS 405/5-130(1)(a) (West 2014) (excluding individuals 15 years of age or No. 1-19-2507
older who were charged with certain qualifying offenses from the jurisdiction of the juvenile
court). Rasaan successfully argued on appeal that his lawyers should have asked for him to be
sentenced in juvenile court because an amendment to the excluded jurisdiction statute that took
effect after he was found guilty but before he was sentenced raised the minimum age for juveniles
subject to its provisions from 15 to 16 years of age. People v. Price, 2018 IL App (1st)
161202, ¶¶ 13-16, 25. This court found that, because this amendment was a matter of procedure
and therefore presumptively applicable to cases that were still pending, Rasaan’s counsel provided
ineffective assistance by failing to seek sentencing in juvenile court. On remand, the circuit court
was instructed to vacate Rasaan’s sentence and make the requisite transfer to juvenile court, subject
to the State’s right to petition for Rasaan to remain in adult criminal court for sentencing. Id. ¶ 30.
¶3 With the case before him again, the circuit court judge—clearly offended that we had
concluded a public defender in his courtroom had rendered ineffective assistance—took pains to
twice state, on the record and in front of Rasaan and his family members, that he strongly disagreed
with our holding on direct appeal. On both occasions the judge referenced the Nuremberg trials
following World War II—where it was determined that Nazi defendants accused of war crimes
could not rely on the defense that they were merely following orders—at one point declaring,
“Nuremberg says you don’t follow all orders; all right?”
¶4 Although the court, in accordance with our mandate, vacated Rasaan’s sentence and held
a hearing on the State’s petition for sentencing in criminal court, Rasaan argues that the circuit
court judge’s open hostility toward this court’s mandate made it impossible for him to receive a
fair hearing on the State’s petition. He alternatively argues that the circuit court failed to properly
consider those factors weighing in favor of a transfer to juvenile court for sentencing. Rasaan asks
us either to order that he should have been sentenced in juvenile court, a holding that would result
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in his immediate release, or to remand his case to a different judge for a new hearing on the State’s
petition.
¶5 For the reasons that follow, we remand this case for assignment to a new judge and a new
hearing on the State’s petition.
¶6 I. BACKGROUND
¶7 A. Rasaan’s Trial and Initial Sentencing
¶8 Rasaan was charged with first degree murder in connection with a shooting that took place
on July 23, 2014, when Rasaan was 15 years old. At the time, the Juvenile Court Act of 1987
(Juvenile Court Act or Act) (705 ILC 405/1-1 et seq. (West 2014)) provided that cases involving
individuals who were 15 years old or older and charged with certain qualifying offenses (including
first degree murder) were excluded from the jurisdiction of the juvenile court and automatically
tried in criminal court. 730 ILCS 5/130(1)(a) (West 2014). Rasaan was accordingly charged and
tried before a jury as an adult in criminal court.
¶9 The evidence at trial established that Rasaan fired a revolver through the window of a
house, striking the 16-year-old victim, Darren Foggey, Jr., in the neck and killing him. On October
22, 2014, the jury found Rasaan guilty of first degree murder with a firearm. Rasaan’s post-trial
motions were denied.
¶ 10 In the months between the jury’s verdict and sentencing, the legislature enacted Public Act
99-258 (Pub. Act 99-258 (eff. Jan. 1, 2016)), which, among other things, amended section 5-130
of the Juvenile Court Act by raising the minimum age for application of the excluded jurisdiction
statute from 15 to 16 years old. 705 ILCS 405/5-130(1)(a) (West Supp. 2015). It also amended the
Unified Code of Corrections (Code of Corrections) (730 ILCS 5/1-1-1 et seq. (West 2014)) to
require consideration of certain mitigating factors when individuals under the age of 18 are
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sentenced in criminal court (730 ILCS 5/5-4.5-105(a) (West Supp. 2015)) and made firearm
enhancements discretionary, rather than mandatory, for such individuals (730 ILCS 5/5-4.5-105(b)
(West Supp. 2015)).
¶ 11 Rasaan’s counsel, relying on some of these changes, argued successfully that he should be
sentenced with consideration given to the new mitigating factors for juvenile offenders and without
a mandatory firearm enhancement. His counsel, however, did not argue that the amendment to
section 5-130 raising the minimum age for automatic criminal court jurisdiction for those with
qualifying offenses should apply retroactively and did not seek transfer of Rasaan’s case to
juvenile court for sentencing. Upon hearing the evidence in mitigation and aggravation, including
Rasaan’s own statement in allocution and the certificates of achievement awarded to him while
incarcerated, and after noting the consistent support Rasaan had received from his family
throughout his case, the sentencing judge concluded that Rasaan had “an outstanding chance of
rehabilitation,” declined to impose a firearm enhancement, and on March 25, 2016, sentenced
Rasaan to 25 years of imprisonment, a sentence falling on the low end of the range of 20-60 years
that Rasaan could have received (730 ILCS 5/5-4.5-20(a) (West 2014)).
¶ 12 B. Direct Appeal
¶ 13 Some months after Rasaan was sentenced, our supreme court unanimously confirmed in
People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 28—a case that had been pending for several
years in criminal court but had not yet been tried—that the amendment to section 5-130 raising the
minimum age for application of the excluded jurisdiction statute to 16 applies retroactively to
“pending cases,” meaning that the defendant in that case, who had not yet been tried, was
transferred to juvenile court for trial. The next year, in People v. Hunter, 2017 IL 121306, ¶ 43,
the court clarified that “pending cases” meant cases that were still in “trial court proceedings” but
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not cases on appeal.
¶ 14 Relying on these authorities, Rasaan argued that because he had not yet been sentenced
when the amendment to section 5-130 took effect, he was still in the midst of trial court
proceedings and his trial counsel should have sought transfer of his case to juvenile court for
sentencing under the Juvenile Court Act. Rasaan claimed that, in failing to do so, his counsel had
provided him with ineffective assistance. Price, 2018 IL App (1st) 161202, ¶ 12. We agreed.
Id. ¶ 26. Although we made clear that “trial counsel should not be expected to anticipate every
new direction future caselaw will take,” we concluded that “where Rasaan’s counsel was aware of
an amendment to the statute that subjected his young client to the criminal court system, where
that amendment concerned a matter of procedure and made no express reference to prospective
application, and where there were still trial court proceedings to which the amendment could be
applied,” his failure to argue that the amendment should be applied to his client was “objectively
unreasonable under prevailing professional norms.” (Internal quotation marks omitted.)
Id. ¶¶ 8, 13.
¶ 15 It was also clear to us that the failure to seek retroactive application of the amendment to
section 5-130 had prejudiced Rasaan. Id. ¶ 25. Had the amendment been applied, the State would
have been required to petition for Rasaan to be sentenced in criminal court under the Code of
Corrections. Id. (citing 705 ILCS 405/5-805(2), (3) (West 2016)). And if the State had been
unsuccessful, the maximum sentence Rasaan could have received in juvenile court would have
been a five-year term in the Department of Juvenile Justice, with release no later than his 21st
birthday. Id. ¶ 12.
¶ 16 We remanded with instructions that the sentence be vacated. Id. ¶ 31. Both parties
recognized that, because Rasaan was over the age of 13 at the time of his offense, the State could
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still petition for a discretionary transfer of his case to adult criminal court. 705 ILCS 405/5-
805(3)(a) (West 2016). Rasaan asked that he be remanded to juvenile court for a juvenile court
judge to consider such a petition. However, we agreed with the State that this was most analogous
to the situation in which a juvenile subject to the excluded jurisdiction statute is ultimately found
guilty only of crimes that no longer qualify him or her for such treatment, a situation in which the
State’s petition is considered by the trial court judge under section 5-130(c)(ii) of the Juvenile
Court Act. Price, 2018 IL App (1st) 161202, ¶ 28. We thus remanded this case back to the trial
court judge for consideration of the factors outlined in that section.
¶ 17 C. Proceedings on Remand
¶ 18 On April 2, 2019, the State filed its “Petition for Defendant to be Sentenced Pursuant to
the Unified Code of Corrections.” The assistant state’s attorney (ASA) assigned to the case
appeared before the judge who had presided over Rasaan’s trial and initial sentencing. No defense
counsel was present. The court then asked who defense counsel had been at trial, prompting an
assistant public defender in the courtroom on another case to offer to contact Rasaan’s trial
attorney. In the exchange that occurred next—reproduced below—the circuit court judge
immediately expressed his disagreement with and disparaged this court’s opinion:
“THE COURT: No. Don’t you understand? Kevin is trying to be a little subtle.
What do they say, ineffective assistance of counsel; right?
MR. DEBONI [ASA]: Yes.
THE COURT: And so you want that spread of record right now?
MR. TERRY [Assistant Public Defender]: No.
THE COURT: Well, why did you ask if you want him brought down here to be
shamed?
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MR. TERRY: Not shamed. He was the trial attorney. He might be able to—
THE COURT: To what, overrule the Appellate Court?
MR. TERRY: No. Never mind.
THE COURT: It would be a motion to duck on his behalf, but now you’re dragging
him in; right?
You’re here. What do you want to do?
MR. TERRY: Your Honor, I can take a copy of the petition and take it to the chief
of the Homicide Task Force and see how she wants to proceed in assigning this case.
THE COURT: They tried homicide bombers too. That didn’t work. You’ve got
Murder Task Force. Why would you take a name like that and put it as Homicide Task
Force?
Nuremberg says you don’t follow all orders; all right? All right. Call them up. Pass
the case, and let’s get Mr. Price an attorney.
MR. TERRY: Thank you, Judge.
THE COURT: Kevin, I’ll—and then they’ll just—Regina will let you know the
date.
MR. DEBONI: Yeah, I can stick around.
THE COURT: Good. It’s always good to have you.
MR. DEBONI: I always enjoyed being before this Court.
THE COURT: Thank you. Even when members of the Public Defender’s Office
give up their brother attorneys?”
¶ 19 The record indicates that this exchange was witnessed by Rasaan and by those members of
his family who were waiting to visit with him that day at the courthouse.
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¶ 20 At the hearing that, after several continuances, was held on November 6, 2019, the circuit
court began, pursuant to this court’s mandate, by vacating Rasaan’s 25-year sentence. The circuit
court judge asked the ASA—“because we have members of the public here”—to remind everyone
of the procedural history of the case and how it had ended up back in the circuit court. The judge
then took the opportunity to state that this court’s reasoning on direct appeal was “kind of weak,
but they’re the Appellate Court” and to again express his view that our holding was tantamount to
“blam[ing] an attorney for not knowing what the future is.” The ASA indicated that he tended to
agree, and the hearing continued, with the court interrupting at one point to remind the lawyers to
address, one at a time, the factors that the statute requires the court to consider in determining
whether sentencing in juvenile court or criminal court is appropriate.
¶ 21 The ASA emphasized that, at the time of the shooting, Rasaan was just four months shy of
his sixteenth birthday and had no history of abuse or neglect, mental health problems, or physical
or educational concerns. He had, according to the ASA, “a fairly decent upbringing with family
members to support him throughout his young life.” The ASA urged the judge to give substantial
weight to the circumstances of the offense: that Rasaan was the shooter and had not been found
guilty merely as an accomplice. The judge interjected at this point to ask if the fact that Rasaan
traveled to the victim’s home was evidence that the crime had been premeditated. The ASA agreed
that it was.
¶ 22 Defense counsel began his argument by asking the court to strike the State’s petition as
untimely, on the basis that if—as this court had held on direct appeal—defense counsel should
have known or discovered that the amendment to section 5-130 of the Act was retroactive, then
the State should be charged with having had that same knowledge. In rejecting this argument, the
circuit court again took the opportunity to voice his disagreement with this court’s reasoning:
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“THE COURT: As stated before, the Appellate Court can do what they want, but
to say that both Defense and Prosecutors are required to know what future laws are [is]
irrational.
MR. BARRETT [Defense Counsel]: I agree.
THE COURT: That’s the nicest way I can put that.
MR. BARRETT: I agree with the Court, but based on the ruling of—
THE COURT: But just because they have the power, that doesn’t mean it’s right.
All right? So I still have to look at justice. Norrenberg (phonetic) says I don’t follow orders,
but go ahead.
MR. BARRET: Yes, Your Honor. We’re just asking the Court to consider that
motion and the arguments presented within that motion. Secondly—
THE COURT: Well, that’s easy. That’s denied. Go ahead.”
¶ 23 The record again reflects that Rasaan and members of his family who had traveled to court
to support him at the hearing were present for these comments.
¶ 24 Addressing the statutory factors, defense counsel argued that it did not matter how close to
his 16th birthday Rasaan was at the time of his crime, he was 15 years old and no longer came
within the provisions of the excluded jurisdiction statute. Counsel asked the court to consider again
the evidence in mitigation it had heard at Rasaan’s initial sentencing, including Rasaan’s statement
in allocution, certificates of achievement awarded to him while incarcerated, the consistent support
he had received from his family, and the court’s own observation that he had “an outstanding
chance of rehabilitation.” Counsel argued that Rasaan was not a threat to the public and urged the
court to order him resentenced in juvenile court.
¶ 25 The circuit court granted the State’s petition for sentencing under the Criminal Code,
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stating its reasons as follows:
“THE COURT: All right. I want to compliment both the Prosecution and Defense
on the outstanding work they have done so far and what I have seen the outstanding work
that they’re going to do in the future on this case. But I have to look at the facts in this case.
All right? This is only concerning the transfer and not concerning the resentencing. All
right? First of all, the offense—one of the factors that has to be considered was the offense
committed aggressive and premeditated in a manner [sic]. There’s maybe an unwritten law
or something else that we all assume people should be safe in their house. They should
have the ability just to say, I’m home and nothing will happen to me. Our Constitution
provides under the Fourth Amendment that people be safe in their homes and that
protection is against the government. So I mean, we should expand that a little bit and make
sure everybody is safe in their home. So I have to look at that. Then the aggressive nature
and premeditation, they moved—Mr. Price and the group moved from one location to
another, so they had a destination in mind, they shot—Mr. Price shot through a window
and then killed Darren while he was at home, so that part is fulfilled.
Then the other thing is Mr. Price was the one that used the deadly weapon, i.e., the
jury came back that he personally discharged a firearm that caused the death of Darren
Foggey, and the other factors that I have considered. So right now, I am going to deny—
sustain the State’s petition and deny the Defense’s petition. So Mr. Price will be sentenced
as an adult in this courtroom.”
¶ 26 The court then asked counsel to move directly to their sentencing arguments. Many of the
same points were stressed and defense counsel cited an updated presentence investigation report
and mitigation packet, including handwritten notes Rasaan had taken during trial, in which he set
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out what he would do to change his life if he were found not guilty. Counsel noted that Rasaan had
enrolled in school and was getting As and Bs, attended church in prison, and had “taken advantage
of every opportunity available to him to better himself.” In allocution, Rasaan apologized to his
family and expressed his desire to better himself so that he could be a role model for his younger
siblings.
¶ 27 The circuit court then set out the basis for its sentencing decision, specifically addressing
the factors set out in Miller v. Alabama, 567 U.S. 460 (2012), finding that Rasaan’s apologies were
“very well taken,” that his young age and rehabilitative potential were “the most prominent
factors,” that he had no criminal background, and that he had “outstanding family support.” The
court asked Rasaan if, should his sentence be reduced, he would do something with his life, so that
his victim’s death would not be completely in vain, and Rasaan agreed that he would. The court
then sentenced Rasaan to 20 years, the minimum sentence for first degree murder available under
the Criminal Code, stating, “I can’t express my sadness for what you’re going through *** it’s
terrible” and concluding the hearing by allowing Rasaan one additional visit with his family at the
courthouse.
¶ 28 II. JURISDICTION
¶ 29 The circuit court granted the State’s petition to resentence Rasaan in criminal court and
entered a final judgment sentencing him to 20 years in prison on November 6, 2019. Rasaan filed
his notice of appeal from the order and judgment the same day. We have jurisdiction over this
appeal under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July 1, 2017),
governing appeals from final judgments in criminal cases.
¶ 30 III. ANALYSIS
¶ 31 In this appeal, Rasaan argues that the circuit court judge’s comments on the record, and in
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particular his statement that “Nuremberg says you don’t follow all orders,” were clear indications
that the judge was resolved not to comply with this court’s mandate on remand. The State, though
acknowledging that the comments “may have been peculiar,” argues that a circuit court judge is
entitled to express disagreement with this court’s analysis. In the State’s view, these “offhand
remarks” do not change the fact that the judge did in fact faithfully comply with the mandate by
vacating Rasaan’s sentence and holding a hearing on the State’s petition for Rasaan to be sentenced
in criminal court under the Code of Corrections.
¶ 32 The State does not dispute that “[a]n appellate court’s determination on an issue is binding
on both the trial court on remand and the appellate court on subsequent appeal,” and “upon remand
the trial court must proceed in accordance with the appellate court’s decision.” People v. Colter,
237 Ill. App. 3d 486, 488 (1992). And we of course recognize that “a trial judge’s inclusion of
some personal observations does not automatically rise to an abuse of discretion.” People v.
Thurmond, 317 Ill. App. 3d 1133, 1146 (2000). As our supreme court has noted, however, “[w]hile
restrained and reasoned disagreement with the ruling of a superior court is not to be discouraged,”
and in fact “may well be constructive in a proper setting, *** dignity is necessary for judicial
proceedings.” People v. Urdiales, 225 Ill. 2d 354, 421 (2007).
¶ 33 The circuit court judge in this case went beyond restrained and reasoned disagreement with
this court’s opinion in a constructive and proper setting. Instead, he used the proceedings on
remand as a platform to express his disdain for the mandate while directly implying that he need
not and indeed should not follow it. The court made these statements not only when the case was
first remanded to him but also several months later, at the November 6, 2019, hearing, in the
presence of Rasaan and his family, who undoubtedly were hopeful that this hard-won proceeding
might conclude in his favor. The atmosphere of fairness and impartiality that should have
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permeated this proceeding, the “dignity” the Urdiales court spoke of, was undermined by
comparisons that should have played no role in court that day. The decision to grant or deny the
State’s petition was a critical one for Rasaan and his family and they had every right to believe
that it would be made fairly and impartially.
¶ 34 The State draws our attention to those portions of the record showing that the judge in this
case “treated [Rasaan] with kindness and respect throughout all of the proceedings, *** repeatedly
commended him for taking strides to improve himself,” and routinely allowed him visits with his
family members at the courthouse. We agree that the trial judge is to be commended for these
actions. At issue here, however, is not whether the judge treated Rasaan himself with dignity in
their personal interactions, but whether his comments called into question whether he would follow
the mandate of this court and make the requisite judicial decision impartially and fairly.
¶ 35 The cases that the State relies on are different. While the judges in those cases clearly
expressed disagreement with or even disparaged decisions of the appellate court, the trial court
judges did not suggest, through reference to Nazi Germany or otherwise, that they need not or
would not follow the mandate of the higher court. In People v. Hooper, 133 Ill. 2d 469, 513-14
(1989), our supreme court concluded that “at the time he made the statements, the judge had not
yet made any decision on the merits of the question before him.” Id. at 514. And in People v.
Nelson, 206 Ill. App. 3d 956, 967 (1991), we concluded that the circuit court “never suggested that
it would not follow the law” that it disagreed with. Here, the trial judge did exactly that—twice—
the second time directly before he was called on to make the critical judicial decision.
¶ 36 Under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), we may, in our discretion,
direct that this case be reassigned to a new judge on remand. People v. Serrano, 2016 IL App (1st)
133493, ¶ 45. We exercise that discretion now. In our earlier decision, we held that the factors set
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out in section 5-130(c)(ii) of the Juvenile Court Act (705 ILCS 405/5-130(c)(ii) (West 2018)—
which a court is directed to consider when a juvenile offender charged with a crime that excludes
him or her from juvenile court jurisdiction is ultimately found guilty of a lesser crime that no longer
qualifies him or her for such treatment—are the factors that the legislature would have a court
consider in these analogous circumstances, where a defendant no longer meets the requirements
of the excluded jurisdiction statute because of his age at the time of the offense. Price, 2018 IL
App (1st) 161202, ¶ 28.
¶ 37 If the newly assigned judge applies these factors and denies the State’s petition, it is our
understanding that Rasaan, who is now 22 years old, will have already served the maximum
sentence permitted under the Juvenile Court Act and must be released. See 705 ILCS 405/5-750
(West 2020). If the newly assigned judge grants the State’s petition, it is our understanding that a
new sentencing hearing will likely not be required, as the minimum sentence available under the
Code of Corrections has already been imposed and, absent some new misconduct on Rasaan’s part,
that sentence may not be increased on remand. See 730 ILCS 5/5-5-4 (West 2020) (providing that
a higher sentence on remand is only warranted where it is “based upon conduct on the part of the
defendant occurring after the original sentencing”).
¶ 38 IV. CONCLUSION
¶ 39 For the above reasons, we reverse the circuit court’s order granting the State’s petition for
Rasaan to be resentenced under the Code of Corrections and remand this case to the presiding
judge of the criminal division of the circuit court with instructions to assign the case to a different
judge to preside over a new hearing on the State’s petition.
¶ 40 Reversed and remanded with directions.
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