People v. Robinson

2021 IL App (1st) 192289

Opinion

2021 IL App (1st) 192289 No. 1-19-2289 Opinion filed May 19, 2021 Third Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 08 CR18483 ) KEVIN ROBINSON, ) Honorable ) Angela Petrone, Defendant-Appellant. ) Judge presiding.

JUSTICE BURKE delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Ellis concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial in 2012, defendant was found guilty of aggravated kidnapping and

aggravated criminal sexual assault. The trial court sentenced defendant, who was 24 years old at

the time of the offense, to a statutorily mandated term of natural life imprisonment for the

aggravated criminal sexual assault conviction based on a prior conviction for criminal sexual

assault and a concurrent term of 20 years’ imprisonment for the aggravated kidnapping conviction.

In his first direct appeal, we reversed his conviction for aggravated kidnapping, affirmed the 1-19-2289

aggravated criminal sexual assault conviction, and remanded for resentencing. People v. Robinson,

2016 IL App (1st) 130484, ¶¶ 55, 57-58.

¶2 On remand, defendant argued before the trial court that his life sentence, mandated under

the former section 12-14(d)(2) of the Criminal Code of 1961 (720 ILCS 5/12-14(d)(2) (West 2008)

(recodified as 720 ILCS 5/11-1.30(d)(2))), is unconstitutional as applied to him based on his

mental illnesses as it violates his rights under the eighth amendment of the United States

Constitution (U.S. Const., amend. VIII) and proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11). He developed a significant factual record in the trial

court in support of his claim. The trial court rejected this claim and again sentenced him to natural

life imprisonment.

¶3 On appeal, defendant raises the same constitutional issues. For the reasons that follow, we

hold that defendant’s mandatory life sentence does not violate the eighth amendment or the

proportionate penalties clause because he was an adult at the time he committed the aggravated

criminal sexual assault and he failed to show that the protections outlined in Miller v. Alabama,

567 U.S. 460 (2012), should extend to him based on his mental illnesses. Also, despite the

mandatory nature of the sentencing statute, the trial court nevertheless considered the relevant

factors regarding defendant’s upbringing, mental illnesses, culpability, future dangerousness, and

rehabilitative potential before imposing the sentence. Accordingly, we affirm the judgment of the

circuit court.

¶4 I. BACKGROUND

¶5 We previously set forth the facts from defendant’s trial in Robinson, 2016 IL App (1st)

130484, and discuss them briefly here only to the extent necessary. The evidence showed that in

September 2008, defendant met the 25-year-old female victim, B.H., who had developmental

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delays, for the first time at the mall through mutual friends. They exchanged phone numbers, and

he later called the victim around midnight and invited her out to eat and to the movies. Once

defendant and the victim were alone together on the Chicago Transit Authority (CTA) Red Line,

he persuaded her to exit the train and enter a dark, boarded-up house at approximately 2 a.m. under

the pretext that he and a friend wanted to buy the property and his friend wanted him to “go check

this property out.” Once inside the house, defendant pushed her against the wall and began kissing

her. When she told him not to do this, he pushed her to the ground, slapped her, and told her to

stop screaming. He then forcibly raped B.H. and made her clean herself off with her hand

afterwards. He warned her not to tell anyone because he knew where she lived. Id. ¶¶ 4-10.

Defendant later called, and she testified that he warned her, “ ‘if I have told anybody or anything,

he knows where I stay at and he will come get me.’ ” Id. ¶ 12. As soon as B.H. was away from the

defendant and on a bus back to her house, she called her mother and asked her to meet her at the

bus station, where she informed her mother that she had been raped. They called 911, and she was

taken to the hospital where a sexual evidence kit was obtained. There was a human male DNA

profile identified from the rectum swabs of the victim that matched defendant’s DNA profile. B.H.

identified defendant in a photographic lineup the next day. Id. ¶¶ 11, 17-18.

¶6 At trial, the State also presented other acts evidence of a 2002 incident where defendant

met a 16-year-old female, D.H., on a CTA train, engaged her in conversation, and got her phone

number. Defendant later called around midnight and invited her to hang out at an “El” station

where he was with a friend. After D.H. arrived and was alone with defendant in the sitting area of

a bathroom inside the station, defendant asked his friend to lock the door from the outside.

Defendant then forcibly raped D.H. He later told his friend that he “ ‘did something bad to [his]

friend.’ ” Id. ¶ 19.

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¶7 Following his convictions in the instant case, the trial court sentenced defendant to

statutorily mandated natural life imprisonment for the aggravated criminal sexual assault

conviction based upon his prior conviction for criminal sexual assault from May 2003 and a

concurrent term of 20 years’ imprisonment for the aggravated kidnapping conviction. Id. ¶¶ 20-

22.

¶8 In his first direct appeal, defendant argued that (1) there was insufficient evidence

supporting his conviction of aggravated kidnapping and (2) the jury was given an erroneous

instruction where the aggravated kidnapping instruction was predicated on a confinement theory

but the charges in the indictment and the kidnapping instruction were predicated on an inducement

theory. Id. ¶¶ 25, 37. This court found sufficient evidence to support his conviction of aggravated

kidnapping. Id. ¶ 35. However, we found the jury was improperly instructed on aggravated

kidnapping and that this established plain error requiring reversal under the second prong of the

plain error test. Id. ¶ 55. We therefore reversed his conviction for aggravated kidnapping, affirmed

his conviction for aggravated sexual assault (predicated on kidnapping, which the jury was

properly instructed on), and remanded for resentencing. Id. ¶¶55, 57.

¶9 A. Remand for Resentencing

¶ 10 On remand, the trial court held a series of hearings for the parties to present argument and

evidence pertinent to resentencing defendant for the aggravated criminal sexual assault conviction.

¶ 11 At a hearing on April 16, 2019, the State reiterated the facts presented at trial surrounding

the aggravated criminal sexual assault in this case and the other-acts evidence. The State asserted

that because defendant was previously convicted of criminal sexual assault, a sentence of natural

life imprisonment must be imposed pursuant to the former section 12-14 (d)(2) of the Criminal

Code of 1961 (720 ILCS 5/12-14(d)(2) (West 2008)).

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¶ 12 Defense counsel argued that the sentencing statute (id.) requiring a natural life sentence

was unconstitutional as applied to defendant under the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11) and the eighth amendment of the United States

Constitution (U.S. Const., amend. VIII) based on the reasoning outlined in Miller, 567 U.S. at 479

(finding a mandatory sentence of life imprisonment without parole to be unconstitutional when

imposed on a juvenile convicted of homicide), and People v. Coty, 2018 IL App (1st) 162383

(applying Miller to a defendant with intellectual disabilities), rev’d, 2020 IL 123972, 1 considering

his life-long mental illnesses and difficult childhood.

¶ 13 In support, defense counsel presented defendant’s records from the Department of Children

and Family Services (DCFS), the Chicago Public Schools (CPS), and presentence investigation

report (PSI). Counsel asserted that defendant’s records showed that defendant was born to a

teenage mother who was at the time a ward of DCFS and who suffered from mental illnesses, that

defendant was placed in foster care as an infant and experienced the deaths of three different foster

mothers, and that defendant eventually lived in various group homes. Defendant reported

experiencing physical, sexual, and emotional abuse in the foster homes. He also received in-patient

treatment three different times at mental health facilities. Defense counsel argued that defendant

exhibited serious behavioral and emotional problems at school, received special services, and

dropped out after one year of high school. After that, he was receiving no treatment or support of

any kind, and by the age of 18 he was arrested for the first criminal sexual assault. Counsel argued

that the forensic report from 2003 indicated defendant was not taking any medications and had

attempted suicide in jail, and he was found fit to stand trial with medication. He pleaded guilty and

1 While defendant’s appeal was pending, our supreme court reversed Coty and found that a mandatory natural life sentence for an intellectually disabled repeat sex offender did not violate the proportionate penalties clause or eighth amendment. People v. Coty, 2020 IL 123972, ¶¶ 42, 45-46. -5- 1-19-2289

served six years in prison, being released in 2008. Counsel argued that following his release, he

was not receiving any treatment or mandated to be on any medications, and then he was arrested

for the instant case when he was 24 years old. Following his arrest, he was evaluated and placed

on antipsychotic and antidepressant medications for bipolar disorder and depression.

¶ 14 The trial court indicated that it wanted to see defendant’s records from the Illinois

Department of Corrections (IDOC) records and continued the hearing until the records were

provided.

¶ 15 We note that a secured record on appeal contains numerous documents provided by

defendant in the trial court related to his claim that he suffered from life-long mental illnesses. The

records date back to 1986, when defendant was a child, and include psychological evaluations,

intake studies with DCFS, mental health assessments, and assessments and evaluations from CPS.

In addition, the record contains the three fitness evaluations that were performed on defendant

during the course of trial proceedings. In March 2010, Dr. Susan Messina, a forensic psychologist

with Forensic Clinical Services issued a report finding defendant fit for trial and legally sane at the

time of the offense against B.H., that he understood the charges against him and courtroom

procedure, and that he was receiving psychotropic medication that staff would assist with. Dr.

Messina found nothing from what she reviewed that suggested a “prominent mental illness or

defect” that precluded defendant from being able to appreciate the criminality of his conduct at the

time of the offense. In April 2010, Dr. Jonathan Kelly with Forensic Clinical Services issued a

report also finding defendant fit for trial, observing that he understood the charges against him and

was able to assist in his defense. Further, defendant was being prescribed antipsychotic medication,

mood-stabilizing medication, antidepressant medication, and medication for side effects

(risperidone, divalproex, Prozac, and benztropine). Dr. Kelly also opined that defendant was

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legally sane at the time of the offense, finding that he “did not have a mental disease or defect at

that time that caused him to lack substantial capacity to appreciate the criminality of his conduct.”

In August 2011, Dr. Christofer Cooper, also a forensic psychologist with Forensic Clinical

Services, issued a report finding defendant fit to stand trial and legally sane at the time of the

offense, noting that he was taking psychotropic medication but was not suffering from a mental

disease or defect that cause him to lack substantial capacity to appreciate the criminality of his

conduct.

¶ 16 B. Sentencing Hearing on August 12, 2019

¶ 17 At a hearing on August 12, 2019, the trial court noted that it had received reports from

CPS, DCFS, and IDOC and also had defendant’s PSI. The trial court then extensively reviewed

the evidence presented at defendant’s trial, noting that it “remember[ed] the facts of the case very

well,” including its observations of the victim of the current sexual assault and the woman who

testified about defendant’s prior sexual assault. The court observed that, due to defendant’s prior

conviction of criminal sexual assault, defendant must be sentenced to a term of natural life in the

present case, but it “wanted to look at all the information here as well.”

¶ 18 The trial court then comprehensively reviewed the information provided by defense

counsel regarding defendant’s upbringing, education, criminal history, mental illnesses, and

behavior during incarceration. The trial court summarized that, regarding his DCFS records,

defendant entered foster care as an infant, he exhibited hyperactive behavior by the age of two,

and he was prescribed Ritalin. The court noted that as defendant grew older, he showed difficulty

following the rules and required close supervision, he was considered “extremely hyperactive,”

engaged in dangerous behavior, and was “rough and likes to fight with other children.” One foster

mother reported that “when you turn your back on him you never know what to expect.” The court

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observed that DCFS records showed defendant “got along fairly well” at school, but he liked to

fight with classmates; he was “oriented as to person, time, and place” but had “borderline mental

development range, sometimes takes risks and does dangerous things.” Defendant was

“hyperactive and a difficult child to manage,” and he “felt rejected by his birth mother.” The trial

court further observed that defendant was diagnosed at 13 years old with attention deficient

hyperactivity disorder (ADHD) and prescribed Ritalin and Prozac. He denied auditory or visual

hallucinations and “appeared to be both happy, sad, and angry.”

¶ 19 The trial court observed that as defendant got older, he had chronic ADHD and emotional

and behavioral problems, though he was not homicidal or suicidal. Further, defendant was

diagnosed with oppositional defiant disorder and bipolar disorder, and he was prescribed Risperdal

and Prozac. He engaged in self-harm behaviors and exhibited poor impulse control, aggression,

impaired judgment, and risky behavior.

¶ 20 The trial court also reviewed defendant’s CPS school records and noted that, on one hand,

defendant was articulate, resourceful, and good with his hands and “loves to go to church.” On the

other, he was confrontational with authority, often reprimanded for being noncompliant, refused

to follow rules, exhibited increasingly volatile behavior, had several suspensions, was belligerent

towards his classmates and staff, disrespectful towards authority figures, and had physical and

verbal altercations with peers. Defendant refused to remain in school an entire day. He was

noncompliant with his medication and refused to participate in counseling sessions.

¶ 21 In reviewing defendant’s IDOC records, the trial court observed that defendant had

approximately 50 incidents where he received tickets or citations from IDOC for intimidation,

threats, unauthorized movement, insolence, disobeying a direct order, assaulting staff and other

inmates, and an incident where defendant filed a grievance because he was denied a comic book

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that contained graphic sexual images. He was charged with assaulting an inmate with an extension

cord and assaulting a staff member. The trial court noted that defendant threatened to hit his

assistant public defender during trial; when the court told him not to say that, defendant said it

again. The trial court also noted that defendant was previously convicted of aggravated battery to

a peace officer and had another pending charge against him for the same, in addition to the prior

criminal sexual assault.

¶ 22 The trial court also related that, according to his PSI, defendant had one child and saw her

regularly before his arrest. He completed one year of high school and worked as a day laborer and

at a fast-food restaurant. Defendant reported experiencing blackouts and concussions, that he had

been treated on an in-patient basis at three hospitals, and that he had attempted suicide several

times.

¶ 23 Considering all of this information, the trial court observed that defendant’s childhood

“was not of his own making that his mother had him at a very young age, was put in foster homes,

and he did experience the loss of his mother, I find that to be very sad and tragic.” The trial court

indicated that it searched for some improvement in his behavior since it sentenced him in January

2013, “[b]ut sadly I haven’t found any improvement. I haven’t found any time where he went to

improve his education or he took any courses to improve himself.” In mitigation, the trial court

found that “defendant did not create the circumstances of his childhood or living situation. He did

report that at some time he was employed and that he has regained contact with his daughter which

is also very good.” However, there was “a lot of inappropriate behavior still in prison.” The trial

court stated that it was statutorily mandated to sentence defendant to natural life in prison due to

his prior conviction for criminal sexual assault.

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¶ 24 Defense counsel argued that the mandatory life sentence was unconstitutional. The trial

court responded, “[t]hat’s one of the reasons why I wanted to look at all the records because I know

that you’re saying mandated natural life without parole is unconstitutional.” Instead of

“automatically sentencing him to life,” the trial court stated that it was:

“really was looking for some information to show that Mr. Robinson had turned

his life around or tried to or worked on his aggression, particularly his

aggression towards females possibly because of his relationship with his mother

and his feelings of abandonment in order to consider that with your request to

consider the statute unconstitutional. I’m not at this time willing to find the

statute unconstitutional and I’m not willing to find Mr. Robinson has shown me

any change in his behavior or any attempts at recognizing his aggression and

how to—deal with it so he is sentenced to natural life without the possibility of

parole.”

¶ 25 C. Motion to Reconsider Sentence

¶ 26 Defendant filed a motion to reconsider sentence on September 9, 2019, again urging the

court to find the sentencing statute unconstitutional as applied to him.

¶ 27 The trial court entered a written order on October 8, 2019, denying the motion for

resentencing. The trial court found that because defendant was 24 years old at the time he

committed the sexual assault in this case, Miller did not apply to him. The trial court also rejected

defendant’s argument that Miller should apply to him as it did to the intellectually disabled

defendant in Coty, 2018 IL App (1st) 162383, finding that defendant was not “intellectually

disabled” like the defendant in Coty. The trial court indicated that, before trial, defendant was

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found fit to stand trial and legally sane at the time of the offense on three separate occasions by

three different forensic psychologists or psychiatrists with Forensic Clinical Services.

¶ 28 Also in its written order, the trial court observed that defendant “frequently and coherently

articulated concerns” to the court such as requesting that his counsel obtain certain evidence and

asking to the court to place him in protective custody in the jail. Defendant had complained of

blackouts during jury selection, but the court observed he was engaging his with attorneys and

taking notes and his attorneys indicated he was fit for trial and specifically requested that another

fitness examination not be done, and instead screened for medication issues. In posttrial motions,

defendant’s counsel indicated that defendant was alert, oriented as to time and place, fit to stand

trial, articulate, responsive, cooperative, and engaged.

¶ 29 In addition, the trial court found in its written order that defendant’s allegation that he had

“diminished culpability” due to “his untreated mental illness” was not supported by the records

defendant provided. The trial court again reviewed the information presented in these records,

including the circumstances of his birth and upbringing, his school records, his employment

history, his involvement in his daughter’s life, his treatment in three mental hospitals, his diagnosis

with “PTSD, ADHD, bi-polar, anti-social and insomnia,” and that he took Ritalin, Prozac,

albuterol, trazodone, Zoloft, risperidone, and Benadryl. The trial court reiterated that his IDOC

records failed to show “any efforts towards rehabilitation” or efforts to continue his education,

such as obtaining a GED or participating in classes for anger management or sex offender

counseling or treatment. Further, the IDOC records showed approximately 50 incidents where

defendant was cited for violent and threatening conduct and he attempted to order magazines with

graphic sexual images. The trial court reiterated that defendant threatened to hit his defense

attorney during trial and stated that he had a “homicidal type of attitude toward her.” Additionally,

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the trial court observed that defendant’s actions in the present case and in the other-crimes case

“did not appear impulsive, but to be premeditated, planned attacks on two separate occasions.”

The trial court found that it sentenced defendant as it did because he failed to show “any change

in his behavior or any attempt at recognizing his aggression and how to deal with it *** I was

looking for, hopefully, improvements in his IDOC records since I sentenced him to natural life

back in January of 2013. But, sadly, I haven’t found any improvement. I haven’t found any time

where he went to improve his education or took any courses to improve himself.” The trial court

stated that it followed the statute mandating the life sentence but added:

“this court did not automatically resentence defendant to life, but gave whatever

time was needed to obtain any additional information to consider in

resentencing; and considered not only evidence from trial, but defendant’s

behavior since being incarcerated and information about him from before trial.

This included all of the information listed above. This court believes that all

appropriate factors in aggravation and mitigation were considered, and that the

sentence imposed was appropriate.”

¶ 30 Defendant filed a timely notice of appeal.

¶ 31 II. ANALYSIS

¶ 32 A. State’s Arguments Regarding the Record on Appeal and Forfeiture

¶ 33 Before we address defendant’s constitutional challenges to his sentence, we first turn to the

State’s arguments that (1) we should affirm the sentence because defendant failed to file the full

record on appeal, and (2) defendant’s claims based on bipolar disorder, PTSD, antisocial

personality disorder, and insomnia are forfeited because he could have raised them in his first

direct appeal.

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¶ 34 We acknowledge that defendant, “as the appellant, bears the burden of providing a

sufficiently complete record to support its claims of error.” People v. Collins, 2021 IL App (1st)

170597, ¶ 37 (citing People v. Smith, 406 Ill. App. 3d 879, 886 (2010); Foutch v. O’Bryant, 99 Ill.

2d 389, 391-92 (1984)). The State contends that defendant failed to provide this court with the

transcripts from his trial. However, we do not find this a sufficient reason to simply affirm

defendant’s sentence and deny his appeal in the present case. This court previously reviewed the

trial transcripts extensively and set forth a detailed account of the facts of this case as presented in

his jury trial. See Robinson, 2016 IL App (1st) 130484, ¶¶ 3-22. The record contains the lower

court record involved in the remand, his sentencing transcript, and the records provided by defense

counsel in resentencing. To the extent we find any deficiency, we note that “[a]ny doubt arising

from the incompleteness of the record will be construed against defendant.” Collins, 2021 IL App

(1st) 170597, ¶ 37.

¶ 35 The State contends that defendant forfeited certain claims for failure to raise them in his

first appeal. The rule is clear that issues that could have been raised in an initial appeal, but were

not, cannot be raised in a second direct appeal. See Kazubowski v. Kazubowski, 45 Ill. 2d 405, 414

(1970); People v. Johnson, 352 Ill. App. 3d 442, 448 (2004) (noting that issues not raised in a first

direct appeal are procedurally barred in a second direct appeal after remand). Issues that were not

raised in the first appeal are considered forfeited, and the second appeal “brings up nothing except

proceedings subsequent to the remandment for the reason that a party will not be permitted to have

his cause heard part at one time and the residue at another.” Kazubowski, 45 Ill. 2d at 414.

¶ 36 However, we note that defendant was initially sentenced just after Miller was decided by

the United States Supreme Court and three years before Coty was decided by our appellate court,

and his first direct appeal was decided two years before Coty. Moreover, because defendant raised

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the issue on remand, extensive evidence was presented at various hearings regarding his as-applied

constitutional challenge. Thus, “the record has been developed sufficiently to address the

defendant’s constitutional claim,” and we are not forced to assess his as-applied challenge in a

“factual vacuum.” People v. Harris, 2018 IL 121932, ¶ 41. Moreover, “a defendant may argue that

a criminal statute is unconstitutional and void at any time.” People v. Lampkins, 2015 IL App (1st)

123519, ¶ 9. As the forfeiture rule “is a limitation on the parties and not the court,” we will not

enforce a procedural default on this issue. People v. Sophanavong, 2020 IL 124337, ¶ 21.

¶ 37 B. Defendant’s Constitutional Challenges

¶ 38 On appeal, defendant contends that his statutorily mandated natural life sentence pursuant

to the former section 12-14(d)(2) of the Criminal Code of 1961 (720 ILCS 12-14(d)(2) (West

2008) (recodified as 720 ILCS 5/11-1.30(d)(2))) violates the eighth amendment of the United

States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11) as applied to him. Defendant urges that his documented,

life-long mental illnesses demonstrate a diminished criminal culpability and a greater capacity for

rehabilitation because his conditions are treatable.

¶ 39 We begin by observing that a statute is presumed constitutional, and we must therefore

construe it to uphold its validity when reasonably possible; the party challenging the statute bears

the burden of demonstrating its invalidity. People v. Huddleston, 212 Ill. 2d 107, 128-29 (2004).

We review a circuit court’s determination regarding the constitutional validity of a statute de novo.

Id. at 129. “A defendant who has an adequate opportunity to present evidence in support of an as-

applied, constitutional claim will have his claim adjudged on the record he presents.” People v.

Coty, 2020 IL 123972, ¶ 22.

¶ 40 1. Eighth Amendment

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¶ 41 The eighth amendment’s prohibition of “cruel and unusual punishment[ ]” applies to the

states through the fourteenth amendment. U.S. Const., amends. VIII, XIV; People v. Davis, 2014

IL 115595, ¶ 18. In Miller, the United States Supreme Court held that mandatory life sentences

imposed on juvenile offenders (under 18 years of age at the time of the offense) violate the eighth

amendment because this prevents the sentencing court from considering the mitigating aspects of

youth, i.e., their immaturity, impulsivity, and increased vulnerability to negative influences. 567

U.S. at 471-80.

¶ 42 The Illinois Supreme Court has since determined that Miller applies to mandatory,

discretionary, natural, or de facto life sentences imposed on juveniles. People v. Holman, 2017 IL

120655, ¶¶ 40, 46; People v. Reyes, 2016 IL 119271, ¶ 9. It also drew the line for a de facto life

sentence at 40 years. People v. Buffer, 2019 IL 122327, ¶¶ 40-41. Accordingly, “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;

Reyes, 2016 IL 119271, ¶ 9). 2

¶ 43 Here, however, it is undisputed that defendant was 24 years old at the time he committed

the aggravated criminal sexual assault at issue. “By now, it is clear that the categorical findings

made by Miller and its progeny under the federal eighth amendment apply only to juveniles.”

People v. Carrion, 2020 IL App (1st) 171001, ¶ 28 (collecting cases and stating that the 19-year-

2 Such attendant characteristics of youth include (1) the juvenile’s age at the time of the offense and evidence of his immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile’s family and home environment; (3) the juvenile’s degree of participation in the offense and the presence of any pressures affecting him; (4) the juvenile’s incompetence or inability to deal with the police or his attorney; (5) the juvenile’s prospects for rehabilitation. Holman, 2017 IL 120655, ¶ 46. - 15 - 1-19-2289

old defendant “cannot avail himself of the eighth amendment” under Miller). “[C]laims for

extending Miller to offenders 18 years of age or older have been repeatedly rejected.” Harris, 2018

IL 121932, ¶ 61. “It is well established that offenders who are 18 years and older cannot raise a

facial challenge to their sentences under the eighth amendment and the Miller line of cases.”

People v. Franklin, 2020 IL App (1st) 171628, ¶ 49.

¶ 44 Defendant therefore cannot avail himself of Miller under the eighth amendment. We note

that defendant contends that his eighth amendment challenge is also supported by Coty, 2020 IL

123972, where the 46-year-old defendant argued that his intellectual disability should be treated

similarly to juveniles in sentencing. However, the supreme court decided Coty under the

proportionate penalties clause of the Illinois Constitution, not the eighth amendment, and is

therefore not helpful to defendant’s eighth amendment challenge here. See id. ¶¶ 36-40.

Defendant’s challenge based on Coty and Miller is more appropriately considered under the

proportionate penalties clause.

¶ 45 2. Proportionate Penalties Clause

¶ 46 The proportionate penalties clause provides that “[a]ll penalties shall be determined both

according to the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.” Ill. Const. 1970, art. I, § 11. Our courts have construed the clause to extend greater

protections against excessive punishment than the eighth amendment. People v. Fernandez, 2014

IL App (1st) 120508, ¶ 63. A defendant’s sentence violates the proportionate penalties clause

where “the punishment for the offense is cruel, degrading, or so wholly disproportionate to the

offense as to shock the moral sense of the community.” People v. Miller, 202 Ill. 2d 328, 338

(2002). To comply with this provision, the court must balance the goals of retribution and

rehabilitation, carefully considering all factors in aggravation and mitigation. People v. Quintana,

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332 Ill. App. 3d 96, 109 (2002). “To determine whether a penalty shocks the moral sense of the

community, we must consider objective evidence as well as the community’s changing standard

of moral decency.” People v. Hernandez, 382 Ill. App. 3d 726, 727 (2008).

¶ 47 Our courts have recently expanded Miller to apply to non-juveniles.

[O]ur supreme court has twice acknowledged that young adults—at least those who were

20 years of age or younger at the time of their crimes—may still rely on the evolving

neuroscience and societal standards underlying the rule in Miller to support as-applied

challenges to life sentences brought pursuant to the Illinois proportionate penalties clause

(Ill. Const. 1970, art. I, § 11).” People v. Daniels, 2020 IL App (1st) 171738, ¶ 25 (citing

People v. Thompson, 2015 IL 118151, ¶ 44 (19-year-old defendant was “not necessarily

foreclosed” from raising claim in postconviction proceedings that sentence was

unconstitutional as applied to him), and Harris, 2018 IL 121932, ¶ 48 (as-applied, youth-

based sentencing claim of 18-year-old defendant was “more appropriately raised” in

postconviction proceedings where a factual record could be developed)).

See also People v. Evans, 2021 IL App (1st) 172809, ¶ 16 (our supreme court has “opened the

door for young adult offenders to demonstrate that their own specific characteristics at the time of

their offense were so like those of a juvenile that the imposition of a life sentence, absent the

safeguards established in Miller, violates the proportionate penalties clause”); Franklin, 2020 IL

App (1st) 171628, ¶ 51 (“Illinois courts typically consider the sentencing claims of young adults

under the proportionate penalties clause rather than the eighth amendment”).

¶ 48 However, as stated, defendant was 24 years old at the time he committed the aggravated

criminal sexual assault, which is well past both the juvenile cutoff for eighth amendment Miller-

based claims and the 18-to-21-year-old group of defendants who have asserted as-applied Miller-

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based claims under the proportionate penalties clause. See People v. Rivera, 2020 IL App (1st)

171430, ¶ 27 (observing that the Miller-based protections “were applied to under-18-year-olds and

which have been arguably extended in some cases and statutes to under-21-year-olds”). Defendant

fails to cite any authority where an offender who was 24 years old at the time of the offense

received the special considerations set forth in Miller. “[Defendant] can point to no case in which

an Illinois court has recognized that a life sentence imposed on a young adult—21 or older as

[defendant] was—is unconstitutional as applied to that offender under the proportionate penalties

clause or the eighth amendment.” People v. Humphrey, 2020 IL App (1st) 172837, ¶ 33. “The

evolving science on brain development may support such claims at some time in the future, but

for now individuals who are 21 years or older when they commit an offense are adults for purposes

of a Miller claim.” Id. “While 21 is undoubtedly somewhat arbitrary, drawing a line there is in

keeping with other aspects of criminal law and society’s current general recognition that 21 is

considered the beginning of adulthood.” Id. ¶ 34.

¶ 49 Defendant nevertheless argues that Miller should be expanded to apply to him under similar

logic—not based necessarily on age but due to mental illness. He argues that he has a long-

documented history of severe mental illnesses that were untreated at the time of the offense and

this reduced his culpability because, like a juvenile offender, they impacted his ability to

understand consequences, control impulses, logically reason, and communicate with others. He

asserts that he experienced a difficult childhood, was subjected to abuse, and received little to no

treatment or medication for his mental illnesses. He also contends that similar to the maturation of

youths, he has significant potential for rehabilitation because his mental illnesses are treatable.

Due to the mandatory sentencing statute, he argues that these attributes were not considered by the

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trial court in sentencing him, in violation of the principles of Miller and the proportionate penalties

clause.

¶ 50 Defendant reasons that the principles outlined in Coty, 2020 IL 123972, following Miller,

support his argument that his statutorily mandated life sentence is unconstitutional as applied to

him. As previously explained, Coty, 2018 IL App (1st) 162383, extended the protections of Miller

to an intellectually disabled 46-year-old defendant who received a life sentence for his conviction

of predatory criminal sexual assault of a child, after having been convicted of, inter alia,

aggravated criminal sexual assault. The appellate court reasoned that Miller was based on Atkins

v. Virginia, 536 U.S. 304 (2002), which found that the eighth amendment barred execution of

mentally disabled defendants because the disability diminished their culpability. Coty, 2018 IL

App (1st) 162383, ¶¶ 69-77. The Atkins court identified the following factors to weigh in

sentencing an intellectually disabled defendant to execution: “diminished capacity (1) to

understand and process information, (2) to communicate, (3) to abstract from mistakes and learn

from experience, (4) to engage in logical reasoning, (5) to control impulses, and (6) to understand

others’ actions and reactions, so as to be more susceptible to manipulation and pressure.” Coty,

2018 IL App (1st) 162383 (citing Atkins, 536 U.S. at 318).

¶ 51 However, while defendant’s appeal in the instant case was pending, our supreme court

reversed Coty, noting that

“the question presented in this case is whether a sentence of life imprisonment, mandatory

or de facto, is permissible for this intellectually disabled adult twice convicted of a sexual

offense perpetrated upon a young child and, if the statute requiring a mandatory natural life

sentence does not apply, whether and to what extent Atkins factors must be considered prior

to the imposition of a de facto life sentence.” People v. Coty, 2020 IL 123972, ¶ 19.

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The court found the mandatory life sentence imposed on the intellectually disabled defendant did

not violate the proportionate penalties clause as applied to him. Id. ¶ 44.

¶ 52 In so holding, the supreme court in Coty reasoned that it had previously “upheld the

constitutionality” of section 12-14.1(b)(2)’s mandatory-life sentencing provision against an as-

applied proportionate penalties challenge in Huddleston, 212 Ill. 2d 107. Coty, 2020 IL 123972,

¶ 23. The court observed that it has “repeatedly recognized that the legislature has the power to

prescribe penalties for defined offenses, and that power necessarily includes the authority to

prescribe mandatory sentences, even if such sentences restrict the judiciary’s discretion in

imposing sentences.” Id. ¶ 24 (citing Huddleston, 212 Ill. 2d at 129). It further noted that “there is

no indication [in our constitution] that the possibility of rehabilitating an offender was to be given

greater weight and consideration than the seriousness of the offense in determining a proper

penalty.” (Internal quotation marks omitted.) Id. “Factors to be considered in determining the

seriousness of an offense include the degree of harm, the frequency of the crime, and the risk of

bodily injury associated with it.” (Internal quotation marks omitted.) Id. The Coty court observed

that, in Huddleston, the court emphasized the profound impact sexual assault can have on children

and the high rate of recidivism among sex offenders; as such, the statutorily mandated natural life

sentence in Huddleston did not violate the proportionate penalties clause as applied to that

defendant. Id. ¶¶ 25-31.

¶ 53 As to the intellectually disabled defendant in Coty, the court examined three factors that

could potentially differentiate him from the defendant in Huddleston: culpability, future

dangerousness, and rehabilitative potential. Id. ¶ 32. The court took “as a given the characteristics

of the intellectually disabled” as set forth in Atkins, but noted that subjecting a defendant to

execution was a very different issue than imposing a life sentence. Id. ¶ 33. Although an

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intellectual disability could reduce a defendant’s culpability, the court found that it may also

increase a defendant’s future dangerousness. Id. ¶¶ 34-38. This was so especially in the context of

sexual offenders.

“Sexual recidivism, and the future dangerousness it entails, was obviously a factor in the

legislature’s determination that a natural life sentence is warranted for recidivists. With

respect to this intellectually disabled defendant, we note that some of the very factors that

the Court in Atkins found reduced culpability *** are what make him a continuing danger

to reoffend.” (Emphases in original.) Id. ¶ 36.

¶ 54 Turning to the prospects for rehabilitation in its proportionate penalties clause analysis, the

court noted that, in Huddleston, the defendant had no intellectual deficits, but “this court concluded

that defendant’s rehabilitative potential did not outweigh the legislature’s determination as to the

seriousness of repeated sexual offenses and the need for a mandatory natural life sentence.” Id.

¶ 37. In distinction, with regard to the intellectually disabled defendant in Coty, “[t]he factors

identified in Atkins logically impair rehabilitative potential, and, unlike a juvenile, whose mental

development and maturation will eventually increase that potential, the same cannot generally be

said of the intellectually disabled over time.” Id. The court found that the reduced culpability of

youth was distinguishable from the lessened culpability of the intellectually disabled on grounds

that Miller was based on “the transient characteristics of youth, characteristics not shared by adults

who are intellectually disabled.” (Emphasis in original.) Id. ¶ 39. Given the static nature of an

intellectual disability, the court found a reduced probability of rehabilitation. Id. ¶¶ 37-40. Having

found that the defendant’s life sentence did not violate the proportionate penalties clause, the court

also concluded that “if a sentence passes muster under the proportionate penalties clause, *** then

it would seem to comport with the contemporary standards of the eighth amendment.” Id. ¶ 45. As

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the Coty court observed, “[c]ourts across the country that have addressed the issue *** have

declined to extend Atkins to noncapital sentences or Miller to the intellectually disabled.” (Internal

quotation marks omitted.) Id. Accordingly, we believe that “the ‘moral judgment’ and ‘mores’ of

the nation are not inconsistent with our own in this matter.” Id.

¶ 55 Defendant argues that the principles informing our supreme court’s analysis in Coty and

the United States Supreme Court’s analysis in Miller are helpful to him here in that, like the

attendant characteristics of youth, the court must consider his mental illnesses as a mitigating factor

that indicates lessened culpability for his offense and increased possibility for rehabilitation

because his illnesses are treatable. We note that “[y]oung adult offenders are not entitled to the

presumption that the tenets of Miller apply to them pursuant to the proportionate penalties clause.

[Citation.] Indeed, they must establish a record to support their argument ***.” (Emphases in

original.) Evans, 2021 IL App (1st) 172809, ¶ 19. Here, defendant raised his as-applied challenge

in the trial court and presented extensive documentation and argument; as such, a factual record

was developed related to his claim.

¶ 56 The record does indeed demonstrate defendant’s long-term struggles with behavioral

problems, complying with rules, engaging in dangerous, threatening, volatile, and violent

behavior, and mental illnesses—bipolar disorder, PTSD, depression, antisocial personality

disorder, and insomnia. However, the same characteristics of his mental illnesses that he argues

reduced his culpability also suggest increased future dangerousness. Defendant has not shown how

they rendered him less culpable for sexually assaulting B.H. than a typical adult sex offender. In

that regard, it bears mentioning that defendant was the sole perpetrator of the sexual assault. In

fact, as the trial court noted, the trial evidence demonstrated defendant’s premeditated conduct in

perpetrating the offense. When defendant first met B.H., who showed apparent signs of

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developmental delays, he obtained her phone number and called her late at night, inviting her to

dinner and a movie despite the obvious late hour. He then lured her through deceit to an abandoned

building, where he perpetrated the sexual assault. The prior acts evidence showed that defendant

had engaged in similar behavior previously in luring another woman to an empty CTA restroom

late at night before sexually assaulting her. We also note that defendant underwent a fitness

evaluation three times during the course of the criminal proceedings, and each time he was found

fit to stand trial and legally sane at the time of the offense and aware of his actions.

¶ 57 Similar to the defendant in Coty, we find no reason hold that the existence of his mental

illnesses is an inherently mitigating factor such that application of the mandatory life sentence

would violate the proportionate penalties clause. Our supreme court has “repeatedly held that

evidence of a defendant’s mental or psychological impairments may not be inherently mitigating,

or may not be mitigating enough to overcome the evidence in aggravation.” People v. Thompson,

222 Ill. 2d 1, 42-43 (2006) (the defendant had paranoid and antisocial personality disorder).

Indeed, a diagnosis of antisocial personality disorder can also indicate a defendant’s future

dangerousness, making it an aggravating factor. See id. at 43; People v. Thomas, 178 Ill. 2d 215,

244 (1997) (evidence that the defendant had antisocial personality disorder constituted evidence

in aggravation in a death-penalty case); People v. Macri, 185 Ill. 2d 1, 66-67 (1998) (prosecutor

properly asserted in aggravation that the defendant’s antisocial personality disorder showed his

violent nature); People v. Christiansen, 116 Ill. 2d 96, 129 (1987) (death penalty appropriate

despite mitigating evidence of emotional and mental disturbance, alcoholism, drug addiction, poor

health, deprived childhood, and remorse).

¶ 58 Also similar to the defendant in Coty, nothing in the records that defendant presented

provided any basis for finding that defendant had an increased possibility for rehabilitation because

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his mental health conditions are “treatable.” Although defendant received treatment in the form of

medication and counseling through DCFS and CPS as a youth, there was no evidence that this

adequately controlled his mental illnesses or reduced his tendency to defy authority and engage in

violent behavior. There was evidence of defendant’s unwillingness to comply with treatment and

medication even as a child. As further testament to his lack of rehabilitative potential, defendant

committed the instant sexual assault shortly after being released from prison after serving his

sentence for his prior sexual assault conviction. In reviewing defendant’s IDOC records, it is

apparent that the trial court was hoping to find evidence of rehabilitative potential, i.e., that

defendant had used his time in prison to seek treatment for his mental illnesses or as a sexual

offender or further his education. Instead, the stark reality is that the trial court found the

opposite—defendant had approximately 50 citations for threatening, violent, assaultive,

disruptive, or noncompliant behavior while in prison; defendant continued to exhibit disparaging

behavior towards female staff; and defendant filed a grievance when he was denied a comic book

that contained graphic sexual images. This was despite being in prison following his conviction

for the instant offense and presumably having access to treatments and medications for his mental

illnesses.

¶ 59 Defendant also argues that, in resentencing him, the trial court considered only a portion

of defendant’s IDOC records, which was “insufficient to paint a full and complete picture of Mr.

Robinson’s rehabilitative potential,” and the trial court sentenced him based solely the mandatory

statute.

¶ 60 Our review of the record reveals that this is an inaccurate characterization of the trial

court’s actions. Upon remand for resentencing following defendant’s first appeal, the trial court

went to great lengths to allow defendant additional time to obtain various records related to his

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upbringing, school records, mental health records, and his IDOC records to support his claim

regarding the unconstitutionality of the sentencing statute. Defendant’s counsel then presented

defendant’s records from DCFS, CPS, and IDOC, in addition to his PSI, and argued extensively

about them before the trial court. In ruling, the trial court comprehensively reviewed all of

defendant’s records, not just some of his IDOC records, both orally in court and in its written

opinion. Notably, the trial court specifically highlighted defendant’s tragic upbringing in being

born to a teenage mother and entering the DCFS system as an infant, experiencing the loss of foster

mothers, his behavioral difficulties in school, and struggles with mental illness. It also noted that

he maintained contact with his daughter and was employed before committing the instant offense.

¶ 61 The record also belies defendant’s contention that the trial court did not consider the

possibility that the sentence was unconstitutional. Defense counsel specifically raised the issue of

the constitutionality of the mandatory life sentence during proceedings on remand. As stated, the

trial court permitted the parties several opportunities for argument and to obtain additional records

related to defendant’s claim. Indeed, the trial court explained, “[t]hat’s one of the reasons why I

wanted to look at all the records because I know that you’re saying mandated natural life without

parole is unconstitutional.” Instead of “automatically sentencing him to life,” the trial court

explained that it:

“really was looking for some information to show that Mr. Robinson had turned

his life around or tried to or worked on his aggression, particularly his

aggression towards females possibly because of his relationship with his mother

and his feelings of abandonment in order to consider that with your request to

consider the statute unconstitutional. I’m not at this time willing to find the

statute unconstitutional and I’m not willing to find Mr. Robinson has shown me

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any change in his behavior or any attempts at recognizing his aggression and

how to—deal with it so he is sentence to natural life without the possibility of

¶ 62 Although it was bound by the mandatory sentencing statute, the trial court nevertheless

specifically considered all mitigating factors related to defendant’s culpability and rehabilitative

potential, such as his difficult upbringing and struggles with psychological problems. The trial

court thoroughly reviewed all records provided by defendant.

¶ 63 In short, defendant was afforded the opportunity to develop a factual record in an effort to

show that his specific characteristics were so like those of a juvenile that imposition of the

mandatory life sentence violated the proportionate penalties clause, absent the safeguards set forth

in Miller. Despite the mandatory statute, the trial court considered defendant’s individual

characteristics and everything pertinent to defendant’s level of culpability, future dangerousness,

and rehabilitative potential. Given this extensive factual record and our analysis set forth above,

defendant’s mandatory life sentence does not shock the moral sense of the community in violation

of the proportionate penalties clause. 3

3 In ruling, we note that, because defendant had the opportunity to create a factual record to support his claims and have the trial court examine his constitutional arguments, this case is distinguishable from others where young adult offenders asserted in preliminary postconviction proceedings that their mental conditions rendered them the functional equivalent of a juvenile, but they had not yet had the opportunity to explore these issues before a trial court. See People v. Savage, 2020 IL App (1st) 173135 (reversing summary dismissal of the defendant’s petition for postconviction relief claiming that his 85-year sentence, imposed in 1995 long before Miller, violated the proportionate penalties clause where the defendant was 22 years old at the time of the offense and claimed that his long-term drug addiction in conjunction with his young age at the time of the offense rendered him the functional equivalent of juvenile); Daniels, 2020 IL App (1st) 171738, ¶¶ 1-2, 33-34 (the defendant made a sufficient showing of cause and prejudice to file a successive postconviction petition where he pleaded guilty to murder at the age of 18 and was sentenced to natural life imprisonment without parole in 1995, long before Miller, and asserted an as-applied, youth- based proportionate penalties sentencing claim in his petition based on “an unusually harsh childhood” and “a number of psychological conditions that could have inhibited his development,” and the defendant “may be able to make a showing” that his psychological conditions rendered him the functional equivalent of a juvenile and he will outgrow them); People v. Ross, 2020 IL App (1st) 171202, ¶¶ 26-27 (finding that the defendant should have been granted leave to file a successive postconviction petition where he was 19 years - 26 - 1-19-2289

¶ 64 In sum, we reject defendant’s constitutional challenges to the mandatory natural life

sentence imposed on him following his conviction for aggravated criminal sexual assault.

¶ 65 III. CONCLUSION

¶ 66 For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 67 Affirmed.

old at the time of the murder and argued that Miller applies to him because the evolving science showed his brain was still developing, he grew up with a father who was a drug addict and alcoholic, and the defendant was also a drug addict, and he was sentenced before Miller was a consideration); People v. Bland, 2020 IL App (3d) 170705, ¶ 14 (granting motion for leave to file successive postconviction petition raising as-applied proportionate penalties challenge to his 71-year sentence where he was 19 years old at the time of the offense and was sentenced 10 years before Miller was decided, and he pled enough facts to warrant further proceedings on his claim that Miller applies to him where he was diagnosed with an antisocial personality disorder and exhibited symptoms similar to characteristics of juveniles). - 27 - 1-19-2289

No. 1-19-2289

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 08-CR-18483; the Hon. Angela M. Petrone, Judge, presiding.

Attorneys Sara Garber, of Thedford Garber Law, of Chicago, for appellant. for Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan for J. Spellberg, David H. Iskowich, and Retha Stotts, Assistant Appellee: State’s Attorneys, of counsel), for the People.

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