2020 IL App (2d) 180237 No. 2-18-0237 Opinion filed June 25, 2020 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Kendall County. Plaintiff-Appellee, ) ) v. ) No. 09-CF-505 ) ZACHARY REYES, ) Honorable ) Timothy J. McCann, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices McLaren and Bridges concurred in the judgment and opinion.
OPINION
¶1 In 2012, following a jury trial, the juvenile defendant, Zachary Reyes, was convicted of
one count of first-degree murder (720 ILCS 5/9-1(a) (1), (a)(2) (West 2008)) and two counts of
attempted murder with a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)). The defendant was
sentenced to 97 years’ imprisonment. Our supreme court ultimately determined that the
defendant’s sentence was unconstitutional and remanded for a new sentencing hearing. People v.
Reyes, 2016 IL 119271. On remand, the trial court sentenced the defendant to 66 years’
imprisonment. The defendant appeals from this order. We vacate the defendant’s sentence and
remand to the trial court for resentencing.
¶2 I. BACKGROUND 2020 IL App (2d) 180237
¶3 The defendant was charged by indictment in the circuit court of Kendall County with the
first-degree murder of Jason Ventura and the attempted murders of Eduardo Gaytan and Jorge
Ruiz. The indictment alleged that on December 20, 2009, defendant personally discharged a
firearm in the direction of a vehicle occupied by Ventura, Gaytan, and Ruiz and that defendant’s
actions caused the death of Ventura as well as serious injury to Gaytan. The defendant, who was
16 years old at the time of the shootings, was prosecuted as an adult (see 705 ILCS 405/5-
130(1)(a)(i) (West 2008)). Following a jury trial, he was found guilty of the charged offenses.
¶4 At the defendant’s sentencing hearing, the trial court imposed the mandatory minimum
sentence of 45 years’ imprisonment for the first-degree murder conviction, consisting of the
minimum 20-year sentence for murder (see 730 ILCS 5/5-4.5-20(a) (West 2008)), plus the
minimum 25-year mandatory firearm enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West
2008)). The court also sentenced the defendant to 26 years’ imprisonment for each of the two
attempted-murder convictions, which consisted of the minimum 6-year sentence for attempted
murder (see 730 ILCS 5/5-4.5-25(a) (West 2008)), plus the 20-year mandatory firearm
enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2008)). In addition, as required by statute
(see 730 ILCS 5/5-8-4(d)(1) (West 2008)), the trial court ordered that all of the defendant’s
sentences must run consecutively to each other. As a result, the defendant was sentenced to a
mandatory minimum aggregate sentence of 97 years’ imprisonment. The defendant filed a timely
notice of appeal from this sentence.
¶5 On appeal, the defendant argued, in part, that his sentence was unconstitutional pursuant
to Miller v. Alabama, 567 U.S. 460 (2012). See People v. Reyes, 2015 IL App (2d) 120471, ¶ 16.
The defendant acknowledged that Miller prohibited a sentencing scheme that mandated a sentence
of natural life in prison without the possibility of parole for juvenile offenders. Id.; Miller, 567
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U.S. at 479. The defendant argued, however, that his aggregate term-of-years sentence was a
de facto mandatory natural life term of imprisonment and was likewise unconstitutional under
Miller. Reyes, 2015 IL App (2d) 120471, ¶ 16. This court rejected defendant’s argument and
affirmed his sentence. Id. ¶ 23. We concluded that Miller applied only to actual sentences of life
without the possibility of parole and thus declined to extend the Miller rationale to an aggregate
term-of-years sentence that amounted to a de facto life term. Id. ¶¶ 23-25. Our supreme court
subsequently granted the defendant’s petition for leave to appeal. See Ill. S. Ct. R. 315 (eff. Jan.
1, 2015).
¶6 On review, our supreme court held that the defendant’s term-of-years sentence was a
mandatory, de facto life-without-parole sentence that was the functional equivalent of a life
sentence without the possibility of parole. See Reyes, 2016 IL 119271, ¶ 9. The court concluded
that the defendant’s sentence constituted cruel and unusual punishment, in violation of the eighth
amendment to the United States Constitution. Id. ¶ 10. The court thus vacated the defendant’s
sentence as unconstitutional pursuant to Miller (id.) and remanded the matter to the trial court for
resentencing (id. ¶ 12). In so ruling, the court noted that, while the defendant’s appeal was
pending, the legislature enacted a new law, codified in section 5-4.5-105 of the Unified Code of
Corrections (730 ILCS 5/5-4.5-105 (West Supp. 2015)), which provided a new sentencing scheme
for juvenile defendants. The law requires trial courts to take into account several mitigating factors
in determining appropriate sentences and makes the imposition of firearm enhancements a matter
of discretion with the trial courts. Reyes, 2016 IL 119271, ¶ 11. The court held that the defendant
should be resentenced in accordance with the new statute. Id. ¶ 12.
¶7 On remand, the trial court ordered a new presentence investigation (PSI) report and, at the
defendant’s request, an IQ test. In September 2017, a psychological evaluation was conducted at
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the Kane County Diagnostic Center and a report was issued. The report indicated that the
defendant received special education accommodations from 2002 to 2009. During that time, he
suffered from attention-deficit/hyperactivity disorder (ADHD) and took medication for that
condition. ADHD caused problems with inattention and impulsivity, but it is not classified as an
intellectual disability. When the defendant took his medication, he showed marked progress in his
academic functioning. However, the defendant stopped taking his medication when he was in
seventh and eighth grades and exhibited behavioral issues as a result. In seventh grade, he was
suspended for gang-related writing. On a General Ability Index (GAI) evaluation, which the report
indicated “represent[ed] a reliable and valid estimate of his overall intellectual ability,” the
defendant scored in the tenth percentile, which indicated that he was in the low average range of
functioning. The conclusion in the report was that the defendant did not meet the criteria for
intellectual disability as defined by section 5-1-13 of the Unified Code of Corrections (730 ILCS
5/5-1-13 (West 2016)).
¶8 The record indicates that, while an initial PSI report was completed in March 2012, the
updated PSI report was completed on November 8, 2017. The PSI report indicated that, prior to
the charges in this case, the defendant’s juvenile record consisted of a charge of unlawful
possession of a firearm without a valid firearm owner’s identification card. At the time of his
arrest, he was in the ninth grade at East Aurora High School. Since he was incarcerated, he had
taken classes and earned numerous certificates in roofing, insulation, and vinyl decking. He had
also earned an anti-violence-awareness certificate and had attended Bible study classes. The report
indicated that his parents never married and his father did not play an active role in his life. He
grew up at home with his mother and four half-siblings. He described his relationship with his
half-siblings as “good.” The defendant became involved with the Latin Kings street gang when
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he was 13 or 14 years old. The defendant expressed remorse for his offenses and specifically for
the death of Ventura.
¶9 The PSI report further indicated that a “Level of Service Inventory-Revised (LSI-R)” was
completed for the defendant and that the test was an objective and quantifiable risk-assessment
tool for predicting current risk to reoffend. Defendant’s LSI-R was based on the factors and details
that were relevant to him at the time of the offenses, December 20, 2009. The results showed that
the defendant was a medium risk for recidivism at the time of the offenses. The report also
indicated that, at the time of his arrest, the defendant was on probation for his charge of unlawful
possession of a weapon. The report concluded that the defendant’s subsequent arrest for the crimes
at issue indicated that his attitude was “supportive of crime.”
¶ 10 An addendum to the PSI report was filed, which included a written statement from the
defendant. In that statement, the defendant expressed remorse for the crimes at issue and stated
that he took full responsibility for his actions. He stated that, while incarcerated, he had been
taking classes because he wanted to learn and become a better person. On the night of the shooting,
older members of the Latin Kings had taken advantage of him because he wanted to be liked, had
low self-esteem, and did not know how to refuse them when they asked him to shoot.
¶ 11 On February 16, 2018, at the sentencing hearing, the State submitted two disciplinary
reports for the defendant from the Menard Correctional Center, dated July 27, 2012, and May 23,
2014. Both disciplinary reports were for possession of contraband: one for having a weapon (a
piece of metal that had a hook on one end) and one for literature related to the Latin Kings (the
Latin Kings “Holy Prayer” and “Code of Kingdom”). The State also submitted an April 19, 2016,
affidavit from the defendant, which had been filed in a Kendall county case against his
codefendant, Francisco Salazar. In the affidavit, the defendant admitted to receiving the gun used
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in the shooting from higher ranking members of the Latin Kings and firing all the shots into
Ventura’s car, based on orders from the higher-ranking gang members. The defendant also
claimed that Salazar was not aware of the gun or the plan. This differed from the defendant’s
testimony at his own trial, where he had testified that he was not the one who fired the shots
towards Ventura’s car.
¶ 12 The defendant submitted his school records, which showed that he had an Individual
Education Program (IEP) and was in the ninth grade at age 16. The defendant’s mother testified
that the defendant had an IEP since first grade. He was ultimately diagnosed with ADHD. The
defendant always scored below average and was considered learning disabled. The defendant
struggled socially and did not have many friends. The defendant’s mother testified that the other
people involved in the crime were not people with whom the defendant normally associated. On
cross-examination, the defendant’s mother acknowledged that the defendant’s problems in school
were also related to his behavior and that his behavior problems were the main reason he was
placed in special schools. She was not aware that the defendant’s IEP reports indicated that he
had gang affiliations as early as 2007.
¶ 13 The trial court heard victim impact statements from Ventura’s mother, father, and brother.
The trial court then heard arguments. The State noted that one of the factors to consider in
mitigation was whether the defendant’s criminal conduct was a result of circumstances unlikely to
recur. The State noted that the May 2014 disciplinary report from the correctional center indicated
that the defendant had a copy of the Latin Kings’ “Holy Prayer” and “Code of Kingdom.” The
State argued that the defendant’s continued gang affiliation showed that the defendant’s criminal
conduct was likely to recur. The State also argued that the defendant was not a candidate for
rehabilitation. The State noted that the defendant was still part of the gang and still did not take
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responsibility for his actions. The State pointed out that, at his trial, the defendant testified that he
was not the shooter and that, in a subsequent affidavit, he stated that he was the shooter. Either
way, the State argued, the defendant continued to blame others and not truly accept responsibility
for his actions.
¶ 14 The defendant argued that he did not have a violent criminal history. His only other offense
prior to the murder was possessing a gun that he had found. The defendant argued that he was
taken advantage of by the older gang members. He had a learning disability and was not a mature
16-year-old. The crime was the result of peer pressure and negative influences. The defendant
argued that he had a high potential for rehabilitation, as evidenced by the multiple classes he was
taking in prison to better himself. The defendant argued that the event was not planned and that
he had expressed remorse for his actions. With regard to his two disciplinary reports—for having
a piece of metal that could be used as a weapon and for gang affiliation—defendant argued that
such actions were a means of survival for a juvenile defendant sent to a maximum-security prison.
Defendant noted that he was 5’7” tall and weighed 145 pounds.
¶ 15 On March 16, 2018, the trial court announced its ruling. The trial court noted that it
reviewed the transcripts of the jury trial and the original sentencing hearing. The trial court stated
that it considered all the evidence presented at the sentencing hearing, including the testimony, the
victim impact statements, and the PSI report and the addendum. The trial court further stated that
it considered the nature of the offense, the maximum and minimum sentences, the defendant’s
criminal history, the crime’s impact on society, the defendant’s young age, his familial and home
environment, the extent of his participation in the crimes, the effect of peer pressure, and the
possibility of the defendant’s rehabilitation.
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¶ 16 The trial court stated that it considered the statutory factors in aggravation and mitigation.
In mitigation, the trial court found that the defendant acted under strong provocation and that he
had an intellectual disability. In aggravation, the trial court considered that the defendant had a
prior weapons-related offense and that the current offense was gang-related. The trial court noted
that it also considered that the appropriate sentence should be a deterrent to others but that it did
not give this factor significant weight. Finally, the trial court stated that it considered the two
disciplinary reports to the extent that they related to the defendant’s potential for rehabilitation.
¶ 17 The trial court sentenced the defendant to 25 years’ imprisonment and a 25-year firearm
enhancement for the first-degree murder of Ventura, 10 years’ imprisonment for the attempted
murder of Gaytan, and 6 years’ imprisonment for the attempted murder of Ruiz. As required by
statute, the trial court ordered the sentences to run consecutively, resulting in an aggregate prison
term of 66 years. The trial court calculated that the defendant would be eligible for parole after
63.5 years, at the age of 82. Thereafter, the defendant filed a timely notice of appeal.
¶ 18 II. ANALYSIS
¶ 19 On appeal, the defendant argues that the trial court abused its discretion in sentencing him
to a 66-year de facto natural life aggregate sentence without adequately considering the
defendant’s youth and attendant circumstances. The defendant’s challenge to his sentence is based
on Miller, 567 U.S. 460, and the line of cases following that decision.
¶ 20 The defendant acknowledges that the issue is forfeited because he did not file a motion to
reconsider his sentence in the trial court. People v. Hillier, 237 Ill. 2d 539, 544 (2010) (“to preserve
a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion
raising the issue are required”). However, in an effort to promote judicial economy, the State has
waived any claim that the argument is forfeited and has requested that we address the merits of the
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appeal. People v. Beachem, 229 Ill. 2d 237, 241 n.2 (2008) (forfeiture is in the nature of an
affirmative defense that State may raise, waive, or forfeit).
¶ 21 In Miller, the Court held “that the [e]ighth [a]mendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders” who commit murder.
Miller, 567 U.S. at 479. Miller did not preclude a sentence of life without parole for homicide
offenders; it required only that the trial court first consider the special characteristics of young
offenders, such as immaturity, impetuosity, and the failure to appreciate risks and consequences,
before imposing such a sentence on them. Id. at 477. In other words, the Court’s holding required
that life-without-parole sentences be based on judicial discretion, rather than statutory mandates.
Id. at 479.
¶ 22 The Court later clarified Miller’s holding in Montgomery v. Louisiana, 577 U.S. ___, 136
S. Ct. 718 (2016). Montgomery reinforced that children are constitutionally different from adults
for sentencing purposes. Id. at ___, 136 S. Ct. at 733. The Court noted that, under Miller,
sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile offender whose
crime reflects irreparable corruption.’ ” (Internal quotation marks omitted.) Id. at ___, 136 S. Ct.
at 734 (quoting Miller, 567 U.S. at 479-80). Montgomery explained that, in Miller, “[t]he Court
recognized that a [trial court] might encounter the rare juvenile offender who exhibits such
irretrievable depravity that rehabilitation is impossible and life without parole is justified. But in
light of ‘children’s diminished culpability and heightened capacity for change,’ Miller made clear
that ‘appropriate occasions for sentencing juveniles to this harshest possible penalty will be
uncommon.’ ” Id. at ___, 136 S. Ct. at 733-34 (quoting Miller, 567 U.S. at 479). The Court held
that Miller’s holding was retroactive. Id. at ___, 136 S. Ct. at 736; see also People v. Davis, 2014
IL 115595, ¶ 39 (same).
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¶ 23 Our supreme court has extended the Miller rationale, holding that (1) Miller applies to a
mandatory term-of-years sentence that is the functional equivalent of life without the possibility
of parole (a de facto life sentence) (Reyes, 2016 IL 119271, ¶¶ 9-10) and (2) Miller applies to
discretionary sentences of life without parole for juvenile defendants (People v. Holman, 2017 IL
120655, ¶ 40). More recently, the court has defined a de facto life sentence for a juvenile offender
as one that is greater than 40 years. People v. Buffer, 2019 IL 122327, ¶¶ 41-42 (stating “a prison
sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life
sentence in violation of the eighth amendment”).
¶ 24 In Buffer, our supreme court held that, “to prevail on a claim based on Miller and its
progeny, a defendant sentenced for an offense committed while a juvenile must show that (1) the
defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the
sentencing court failed to consider youth and its attendant characteristics in imposing the
sentence.” Id. ¶ 27 (citing Holman, 2017 IL 120655, ¶ 40, and Reyes, 2016 IL 119271, ¶ 9). In
the present case, the defendant’s 66-year sentence is a discretionary de facto life sentence and
Miller thus applies. Id.
¶ 25 In Holman, the court explained:
“Under Miller and Montgomery, a juvenile defendant may be sentenced to life
imprisonment without parole, but only if the trial court determines that the defendant’s
conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption
beyond the possibility of rehabilitation. The court may make that decision only after
considering the defendant’s youth and its attendant characteristics. Those characteristics
include, but are not limited to, the following factors [(the Miller factors)]: (1) the juvenile
defendant’s chronological age at the time of the offense and any evidence of his particular
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immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile
defendant’s family and home environment; (3) the juvenile defendant’s degree of
participation in the homicide and any evidence of familial or peer pressures that may have
affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with
police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the
juvenile defendant’s prospects for rehabilitation.” Holman, 2017 IL 120655, ¶ 46 (citing
Miller, 567 U.S. at 477-78).
Accordingly, to withstand a Miller-based constitutional challenge to a defendant’s sentence, the
trial court must consider the Miller factors and determine whether the defendant was among those
juvenile offenders whose conduct reflects transient immaturity or whether the defendant was
among the rarest of juvenile offenders whose conduct places him beyond the possibility of
rehabilitation. Id.
¶ 26 In the present case, the trial court stated that it considered the Miller factors. Specifically,
it considered “the defendant’s age, his family and home environment, the extent of his participation
in the crimes, the effect of any familial or peer pressure, and the possibility of his rehabilitation.”
Further, some information pertinent to the Miller factors was presented and considered through
the defendant’s school records, the PSI report and the addendum, the evidence presented at the
sentencing hearing, and the parties’ arguments.
¶ 27 Regarding the first Miller factor, the trial court stated that it considered that the defendant
was only 16 years old at the time of the offenses. The trial court also considered, as a statutory
mitigating factor, that the defendant had an intellectual disability. The record indicates that the
defendant struggled in school and, at the time of the offenses, although he was 16 years old, he
was only in the ninth grade.
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¶ 28 As to the second Miller factor, the PSI report indicated that the defendant grew up without
a father but had a seemingly normal home life with his mother and four half-siblings. In the PSI
report, the defendant described his relationship with his siblings as “good.” The report also
indicated that his mother and half-siblings had visited him while he was incarcerated.
¶ 29 With regard to the third factor, the defendant’s degree of participation in the crimes, the
jury found that the defendant had fired the shots that killed Ventura, and, in a subsequent affidavit,
the defendant admitted that, at the request of a higher-ranking gang member, he was the one who
fired the shots at Ventura’s vehicle. The trial court considered, in mitigation, that the defendant
likely acted under strong provocation from others. Regarding the fourth factor, there was no
evidence presented that the defendant was unable to deal with the police officers or prosecutors or
was incapable of assisting his own attorneys.
¶ 30 Finally, with regard to the fifth factor, the defendant’s potential for rehabilitation, the trial
court stated generally that it considered the issue of rehabilitation and that it considered the
defendant’s two disciplinary reports as they related to the defendant’s potential for rehabilitation.
The record also shows that the trial court considered that the defendant had one previous juvenile
offense of record, for unlawful possession of a weapon. The State argued that the defendant was
not amenable to rehabilitation, as evidenced by his two disciplinary reports and continued gang
affiliation. The defendant argued that the continued gang affiliation was merely a method of
survival for a juvenile in a maximum-security prison and that he had potential for rehabilitation,
as demonstrated by his expressed remorse and the classes he attended while incarcerated.
¶ 31 Accordingly, the record shows that the trial court stated that it considered the Miller factors
and that there was also evidence and argument related to those factors. However, despite noting
the defendant’s age, the trial court never commented on the defendant’s immaturity, impetuosity,
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or ability to understand risks and consequences. The trial court did not specifically address
whether the defendant was too young or too immature to resist the negative influences surrounding
him at the time, or whether he was mature enough to maintain control over his actions. With
respect to rehabilitation, the trial court did not mention or discuss the finding in the PSI report that
the defendant was at a medium risk to reoffend. The trial court also did not comment on the fact
that the defendant had earned a number of certificates in prison as a means to better himself and
had expressed remorse in his written statement. As such, the record does not show that the trial
court made any determination that the defendant was beyond rehabilitation or that the defendant’s
conduct reflected permanent incorrigibility. Cf. Holman, 2017 IL 120655, ¶¶ 48, 50 (the
defendant’s sentence complied with Miller where the probation officer, in the PSI report, stated
that the defendant had “no predilection for rehabilitation” and the trial court found that the
defendant could not be rehabilitated).
¶ 32 Based on our review of the record, we hold that the defendant’s sentence did not comply
with Miller and Holman. In this case, the trial court imposed a de facto life sentence on the
defendant but the record does not reflect a determination by the trial court that the defendant was
among the rarest of juvenile offenders whose “conduct showed irretrievable depravity, permanent
incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Id. ¶ 46.
Accordingly, the appropriate remedy is to vacate the defendant’s sentence and remand for
resentencing. Davis, 2014 IL 115595, ¶ 43. In so ruling, we express no view about the sentence
that the defendant should ultimately receive. On remand, the trial court could once again impose
a de facto life sentence only if it determines that the defendant is beyond rehabilitation. See
Holman, 2017 IL 120655, ¶ 46.
¶ 33 III. CONCLUSION
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¶ 34 For the reasons stated, we vacate the defendant’s sentence and remand for a new sentencing
hearing.
¶ 35 Vacated and remanded.
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No. 2-18-0237
Decision Under Review: Appeal from the Circuit Court of Kendall County, No. 09-CF-505; the Hon. Timothy J. McCann, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of for State Appellate Defender’s Office, of Elgin, for appellant. Appellant:
Attorneys Eric C. Weiss, State’s Attorney, of Yorkville (Patrick for Delfino, Edward R. Psenicka, and Mary Beth Burns, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
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