2022 IL App (1st) 191087-U
FIFTH DIVISION February 25, 2022
No. 1-19-1087
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 Plaintiff-Appellee, ) Circuit Court of Cook County. ) v. ) 16 CR 11542 ) FRANK ROBINSON, ) Honorable Thaddeus L. Wilson, ) Judge Presiding. Defendant-Appellant. )
JUSTICE CONNORS delivered the judgment of the court. Justices Hoffman and Cunningham concurred in the judgment.
ORDER
Held: There was sufficient evidence presented to find Robinson guilty beyond a reasonable doubt of first degree murder and aggravated battery with a firearm; an evidentiary hearing must be held on the constitutionality of a mandatory life sentence as applied to Robinson. Affirmed in part; remanded for further proceedings.
¶1 Following a jury trial, defendant, Frank Robinson, was found guilty of two counts of first
degree murder and two counts of aggravated battery with a firearm. Robinson received a
mandatory natural life sentence on his two convictions for first degree murder, and consecutive
sentences of 20 years in prison for each of his convictions for aggravated battery with a firearm. No. 1-19-1087
For the following reasons, we affirm the convictions, but remand for an evidentiary hearing on
the constitutionality of Robinson’s mandatory life sentence as it applies to him under the
proportionate penalties clause.
¶2 I. BACKGROUND
¶3 Robinson and codefendant Ricky Dortch were charged with first degree murder,
attempted first degree murder, and aggravated battery. The indictment alleged that on August 26,
2015, Robinson shot four people, killing two of them. A jury trial was held simultaneously with
codefendant Dortch’s bench trial.
¶4 Shukaria Hampton testified that she was dating Dortch on the date of the incident. They
took his car to get breakfast and then planned to drive to Wisconsin so Dortch could attend a
court hearing. Dortch received a phone call, and they made a detour to Lexington Street and
Sacramento Avenue. Dortch stopped the car and Robinson got into the car with them. Hampton
had known Robinson since she was a child.
¶5 Dortch arrived at a park and drove around it twice. Hampton saw Kwamaine Lovette at
the park. Dortch said, “There they go.” Dortch then parked in the alley. Robinson exited the car,
raised his shirt over his nose, and approached the park. Hampton saw Robinson with a gun.
Robinson moved out of Hampton’s view and she heard several gunshots. When Robinson got
back into the car, she saw that he had a gun in his hand. Robinson said the gun was “hot” and
that it had jammed. Dortch drove down Sacramento Avenue and let Robinson out of the car.
Dortch and Hampton switched cars, picked up another person that Hampton did not recognize,
and drove to Wisconsin for the court hearing.
¶6 In May 2015, Hampton was arrested for possession of a handgun, and after this shooting
incident, was arrested in Indiana on federal charges for credit card fraud. She testified that she
2 No. 1-19-1087
did not tell authorities about this shooting after her credit card fraud arrest because she was
afraid. She pled guilty to the federal charges and was sentenced to two years of probation with
six months of house arrest.
¶7 In July 2016, Hampton was stopped by Chicago police and taken in for questioning. She
testified that she told the truth about what happened on the day of the shooting. She was not
promised anything in exchange for information. She met with an assistant state’s attorney, and
then testified before a grand jury on July 6, 2016.
¶8 Sue Mueller, a retired assistant district attorney in Sauk County, Wisconsin, testified that
in August 2015, she handled a case against Dortch. In her experience, it took about three and a
half hours to get from Sauk County to Chicago. Dortch was due in court at 3:30 p.m. on the date
in question, but arrived at 3:46 p.m., according to Mueller’s notes.
¶9 Kensey Ross testified that he was incarcerated at the Illinois Department of Corrections
for possession of a controlled substance. He had several prior convictions for the same offense.
He was a former member of the Gangster Disciples and on the date of the incident, he was living
at 317 South Albany, which he described as Gangster Disciple territory. In August 2015, Ross
was on an electronic home monitoring (EHM) system as a form of pretrial release for a pending
criminal charge. Ross sold drugs from his home during that time. He was not permitted to leave
the house, but had discovered that the EHM equipment would not detect that he was outside his
house as long as he remained on his block, so he took walks often. If he went too far, he would
get a call from a central EHM box in his home, which he would have a chance to answer without
violating his bond.
¶ 10 On August 26, 2015, Ross left his house and was outside the range of his EHM device.
He had to run back into his house to answer the phone. He told the operator he had been taking
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the trash out, but admitted he was “probably” selling drugs. At 10:30 a.m., Ross went outside to
walk his dog. He noticed a dark colored BMW going up and down the street. The vehicle
stopped an Albany Avenue, and Ross saw Robinson get out of the car with a t-shirt over his face.
Ross testified that he had previously socialized with Robinson “dozens” of times. Robinson had
dreadlocks at the time of the shooting. The car then drove into a nearby alley.
¶ 11 Ross saw Robinson point a black gun with an extended clip at the park and start shooting.
Robinson went behind a church and Ross heard several more shots fired. Ross acknowledged
that in his grand jury testimony, he stated that he never saw Robinson shooting the gun, but
explained at trial that he must have misunderstood the question at the grand jury.
¶ 12 Robinson ran towards Ross on the way back to the car and did not have his shirt over his
face at that time. Robinson got into the car, which then drove off. Ross went towards the park
and saw one person lying on the ground, one person by a van who had been shot in the leg, and a
crowd of people watching. When Ross realized that someone had called the police, he returned
to his house. At around 4:15 p.m., Chicago police detectives showed him a photo array. He
identified Robinson as the shooter.
¶ 13 Lawrence Williams testified that on the date in question, he was in Horan Park with a
friend, facing the park’s baseball diamond. He saw a “lot of young people standing around,” and
a dark colored BMW stopped in an alley nearby. Williams heard gunshots and laid down on the
ground. He saw a man standing in front of the church shooting at a group of young men by the
basketball court. The shooter was wearing something over his face, but Williams could see that
he was Black, about 18 to 25 years old, and had dreadlocks.
4 No. 1-19-1087
¶ 14 When police arrived, Williams gave them his contact information. On August 31, 2016,
Williams was interviewed by Detective Leavitt. He was given a photo array but was unable to
identify anyone as the shooter.
¶ 15 Kenyon Boyd testified that he was a member of the Unknown Vice Lords gang. When
called to the stand, he recanted his grand jury testimony and videotaped statement, saying that he
lied in those to secure a dismissal for a pending charge of unlawful possession of a handgun and
illicit substance.
¶ 16 Boyd’s testimony at the grand jury was admitted into evidence as impeachment evidence.
At the grand jury, Boyd testified that on the date in question, a car with Robinson, Hampton, and
Dortch stopped in front of him and a group of people while they were outside on their block.
Boyd recognized Robinson because he saw him nearly every day. Robinson exited the car and
went into a nearby “trap house,” which he explained was a house where guns and drugs are
either held or sold. When Robinson came back out, he had a gun with a clip under his shirt and
he entered Dortch’s vehicle. After about 30 minutes the vehicle returned, and Robinson told
Boyd to “check his timeline” because he “just scored.” Robinson then went back into the trap
house and reemerged without a gun. Boyd later learned that Lovette had died that day.
¶ 17 On September 28, 2015, Boyd told this information to detectives Leavitt and Lipsey. On
December 9, 2015, he identified Robinson in a photo array.
¶ 18 On cross-examination at trial, Boyd claimed that the first time he spoke about this case
was when he was arrested for illegal possession of a gun and a controlled substance. The police
asked him about the shooting at Horan Park, and because he did not want to go to prison, Boyd
told the detectives “what they wanted [him] to say.” Boyd testified that one of the detectives told
him he would avoid prison time for his charges. He stated that he gave short answers to the
5 No. 1-19-1087
detectives and that he just agreed with what they guided him into saying. He testified that he
never met Robinson before and that he fabricated his story based on the context of the police
officers’ questions.
¶ 19 Assistant State’s Attorney Nyshana Sumner testified that in January 2016, she argued
against Boyd’s motion to suppress evidence, but that it was granted. She then dismissed the case.
Sumner did not coordinate with a judge or defense counsel to purposefully lose a motion in order
to provide cover to dismiss a case in exchange for promised testimony.
¶ 20 Officer Elizabeth Vera, an evidence technician with the Chicago Police Department
testified that on August 26, 2015, on the 3000 block of West Van Buren Street, she and her
partner found 17 fired .40-caliber cartridge casings near a playground area, blood stains, and an
unfired bullet. Each bullet cartridge was fired from the same gun.
¶ 21 The parties stipulated that on August 27, 2015, Dr. Adrienne Segovia, an expert in
forensic pathology working for the Cook County Medical Examiner’s Office, conducted the
postmortem examinations of Kortney Blakes and Kwamaine Lovette. Segovia determined that
both victims had died of homicide from being shot.
¶ 22 Chicago Police Detective Mark Leavitt testified that on August 26, 2015, at around 10:30
a.m., he was assigned to investigate a homicide that occurred in Horan Park. After speaking to
Williams, he learned that the shooter fired a gun from a corner of the park, then ran towards a
waiting vehicle. Detective Leavitt also spoke to Ross. Robinson was identified as a primary
suspect. On September 20, 2015, Detective Leavitt learned that Boyd may have known about the
shooting. He drove to Statesville Penitentiary with Detective Mike Lipsey and ASA Angela
Carlisle. Boyd provided details of the shooting in a statement. Detective Leavitt did not promise
6 No. 1-19-1087
Boyd any benefit for his pending cases. Boyd identified Robinson as the shooter and stated that
Dortch and Hampton were the other people in the BMW.
¶ 23 On October 8, 2015, Detective Leavitt obtained a warrant for Robinson’s arrest, and
Robinson was arrested on June 21, 2016.
¶ 24 Detective Daniel Frausto testified that on November 1, 2014, he was working as a patrol
officer when he pulled over a dark blue BMW for an expired license plate. Detective Frausto
asked for identification from each person in the car, where Robinson was a passenger. As a result
of the stop, Detective Frausto created a “contact card” containing some information about the
subject, such as the name, height, race, and date of birth. Robinson’s contact card did not have
anything stating that he had a face tattoo, but Detective Frausto testified that there was not “a box
for that.”
¶ 25 The parties stipulated that if called to testify, David Ernst, a paramedic with the Chicago
Fire Department, would state that on August 26, 2015, he was dispatched to the 3000 block of
Van Buren Street to treat Trevelle Washington for a bullet wound to his right calf and Shaquille
Rogers for a graze wound to his left shoulder.
¶ 26 The State rested.
¶ 27 Defense counsel called Erin Hanson, the supervisor for investigations for the Chicago
Office of Emergency Management and Communications (OEMC) to testify. Hansen testified that
her event inquiries from the morning of August 26, 2015, showed that OEMC received a call
claiming that a person had been shot near a gas station by a man with dreadlocks riding a
bicycle. None of the subsequent calls described a BMW.
¶ 28 Hansen testified that there were two calls that came in about six seconds apart at 11 a.m.
The phone calls came from police officers and none of the calls described a BMW.
7 No. 1-19-1087
¶ 29 Colibri Jackson, Robinson’s older sister, testified that on the morning of August 26,
2015, she went to 2918 West Flournoy Street in Chicago. She saw her grandmother, her father,
and Robinson. After she arrived, Robinson’s friend Mario came to the house so that he and
Robinson could bleach a pair of jeans. Jackson testified that she stayed there until 11 a.m., at
which point she went to a hair appointment. Robinson never left the apartment while she was
there.
¶ 30 Leonta Green, Ross’s nephew, testified that in August 2015, when he visited his aunt on
South Albany Avenue, he would see Ross, who was on home monitoring. Green was aware that
Ross was using and selling drugs while on home monitoring. Green also knew Robinson and
testified that he never saw Robinson and Ross together. He rarely socialized with either of them.
¶ 31 The jury found Robinson guilty of two counts of first degree murder and two counts of
aggravated battery. They jury also found that Robinson personally discharged a firearm and
personally discharged the weapon that killed the victims.
¶ 32 Robinson’s posttrial motion for a new trial was denied. Prior to sentencing, he filed a
motion to declare the Illinois mandatory life sentence statute violative of the United States and
Illinois constitutions. Defense counsel noted that Robinson had been convicted of two homicides
and that at the time of the incident Robinson was 18 years and 4 months old. Conceding that the
court was required to sentence Robinson to natural life in prison, defense counsel argued that a
natural life sentence for Robinson violated the eighth amendment of the United States
Constitution and the proportionate penalties clause of the Illinois Constitution.
¶ 33 Robinson filed a memorandum in support of his motion for the unconstitutionality of the
sentencing statute as it applied to him, contending that the court would be imposing a life
sentence without parole without properly considering his youth and its attendant circumstances.
8 No. 1-19-1087
Robinson conceded that this principle “generally only applies to juveniles and that he was 18
years old at the time of his offense,” but argued that courts have “recognized that the cognitive
abilities of 18 to 24 -year-olds are more similar to those of juveniles than to adults and have
accordingly ordered new sentencing hearings in a number of cases.” Robinson asked the court to
apply the same reasoning to his case and “order a new sentencing hearing requiring the trial court
to consider his youth in mitigation.” Robinson attached to his motion an article entitled, “Less
Guilty by Reason of Adolescence,” which concluded that adolescent offenders should be
punished more leniently than their adult counterparts. Robinson asked the court to find a life
sentence to be unconstitutional as applied to him.
¶ 34 Defense counsel later amended the presentence report to include letters from Robinson’s
family members and friends. Robinson’s half-brother, James Banks, wrote a letter to the court
saying that his father was often completely absent from his life. He knew that Robinson’s
upbringing was likely similar because they shared the same father, and were “robbed of having a
stable home environment.”
¶ 35 James Robinson, Robinson’s father, wrote that Robinson’s troubles were due in part to
his “failures as a father.” He stated that Robinson was very intelligent, but was influenced “by
the same elements that negatively impact inner city communities.” He asked the court to
consider Robinson’s young age and give him an opportunity to rehabilitate.
¶ 36 Lilliam Jackson, Robinson’s mother, wrote that her son was helpful to both older and
younger generations in their neighborhood. He was very involved in the church’s basketball
summer league and mentored young people in the community.
¶ 37 There were several letters from other members of his family and his community, all
attesting to Robinson’s thoughtfulness and positivity. Alexis Jackson, Robinson’s cousin, wrote
9 No. 1-19-1087
that his parents faced drug addiction, and that he had a lack of social and economic resources.
She also stated that as a young adult, Robinson’s brain had not fully matured, and he was unable
to have a full understanding of what was going on.
¶ 38 Andriela Patterson, Robinson’s childhood friend, wrote that Robinson deserved another
chance because his parents were absent during his childhood, and it was not easy to grow up in
their neighborhood.
¶ 39 Robinson’s presentencing investigation (PSI) report contained information indicating that
Robinson said he had a good childhood, his home life was stable, and his basic needs were met.
Robinson was a C-average student, played some sports, and dropped out of high school during
his senior year. Robinson was diagnosed with ADHD during grade school, but he was not
prescribed any medication. He had one child, who was three years old. Robinson frequently
smoked marijuana and had taken ecstasy several times a week from when he was 14 to 16 years
old, and at least once a day from when he was 16 years old until he was incarcerated.
¶ 40 At the sentencing hearing, the trial court noted that,
“there might be a situation, some scenario where a defendant between 18 and 24
might argue that the sentencing statute’s unconstitutional as applied to him. But it
turns on these specific facts and circumstances of that case and specific facts and
circumstances specific and peculiar to that defendant. I haven’t heard anything
along those lines for your as-applied challenge.”
¶ 41 Defense counsel responded that the PSI indicated that Robinson was a high school
dropout, was diagnosed with ADHD in grade school but was never prescribed medication, saw a
psychiatrist at age 11, and had many years of drug abuse (marijuana and ecstasy). Defense
10 No. 1-19-1087
counsel noted that there was a letter from his brother indicating that his mom and dad were
addicts and not around during his upbringing.
¶ 42 The trial court asked, “Any medical records regarding this defendant and his brain and
his brain development and juvenile maturity?” Defense counsel responded, “Not that I have in
my possession.” The trial court stated, “So then why would his situation be more compelling
than what was presented in Harris?”
¶ 43 The State argued that Robinson had not put forth enough evidence from the PSI and the
article to support an as-applied challenge. The trial court stated:
“But aren’t we going to really, you know, maybe 5, 10, 15 years down the road
get to age 25 as the number? Isn’t there – Haven’t we heard that there’s research
about people’s brains, especially boys, that it’s age 25. That’s why they won’t let
you rent a car till 25. And the science – even though it hasn’t been presented here
– you know, there’s talk and news stories about brain being fully developed at
age 25.”
¶ 44 The State responded, “I can’t tell the Court what the research will show or what other
research in other cases has shown or if it’s applicable to this defendant, and I don’t think that
would be fair to ask me to do that.”
¶ 45 Defense counsel then stated that he had also attached to his motion a law review article
that cited numerous studies about young men and their brains, which provided the court with
reviews of the science that exists. He then said, “We would ask that the Court grant the motion or
alternatively give me leave to amend it with some records that would apply to [Robinson’s]
situation specifically.”
¶ 46 The court responded:
11 No. 1-19-1087
“Obviously one article of someone we know not of their acumen and quality isn’t
going to be sufficient for this type of ruling. As I said previously, this type of
thing is generally – I don’t know if ‘known’ is the right word – but at least
generally banting about and heard regarding age 25, but I don’t know if this
would be sufficient in general or as applied to be enough.”
¶ 47 In making its ruling, the trial court stated that the United States Supreme Court has
maintained that the line between juvenile and adult is age 18, and that the Illinois Supreme Court
has found a mandatory life sentence does not violate the eighth amendment as applied to young
adults between 18 and 24 years of age. It noted, however, that Harris
“left open the possibility that a natural life or de facto natural life sentence could
violate the Illinois proportionate penalties clause as applied to a young adult;
however, the Supreme Court indicated that such a claim would have to show how
the evolving science on juvenile maturity and brain development that helped form
the basis for the Miller decision applies to the defendant’s specific facts and
circumstances. Thus, as applied, the proportionate penalties claim must be
individualized to this particular defendant. A claim merely premised on age that
would be categorical to all young adult defendants would be insufficient. I do not
believe the defendant has presented sufficient evidence at this time with respect to
an unconstitutional as-applied analysis. It may be right for a later postconviction
petition but not with respect to what’s before me now.”
¶ 48 The trial court continued:
“Furthermore, it would likely be – or could be much ado about nothing in the
sense that we have two dead bodies and we have two people who were injured.
12 No. 1-19-1087
Even if we were to consider a lesser sentence, if I had that ability, or if I had
found it unconstitutional as applied to [Robinson] the resulting sentence would
still likely be one that would end up for the rest of his life and he’d be looking at
40 to 50 years on each of the murders and 18 to 25 – 18 to 30 years on each of the
aggravated battery with a firearm counts. And as difficult as it is for harsh
sentences for juveniles and young adults, it’s not so much when there are multiple
victims as in this case, especially given the senseless nature and unnecessary
purpose behind what took place here.”
¶ 49 The trial court denied Robinson’s motion. It sentenced Robinson to life in prison for each
first degree murder conviction, and consecutive 20-year sentences for the aggravated battery
with a firearm convictions.
¶ 50 Robinson filed a motion to reconsider his sentence, arguing that the sentence was
excessive and not in keeping with Robinson’s “past history or criminality, mental history, family
history, family situation, economic status, occupational or personal habits.” The trial court
denied Robinson’s motion to reconsider, and this appeal followed.
¶ 51 II. ANALYSIS
¶ 52 As an initial matter, we note that the State Appellate Defender filed an opening appellate
brief on behalf of Robinson on November 25, 2020. On May 4, 2021, Robinson filed a motion to
substitute the State Appellate Defender with a newly retained private attorney, which was
granted. On May 6, 2021, Robinson’s new counsel filed a motion for leave supplement his
appellate brief with additional issues. On May 13, 2021, this court denied the motion “without
prejudice to filing a substitute brief incorporating all the desired arguments.” The State filed its
response to Robinson’s initial brief on June 1, 2021. Robinson filed his substitute brief on
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August 2, 2021. The State responded on September 17, 2021, and Robinson replied on October
4, 2021. We address the issues contained in the substitute briefs below.
¶ 53 On appeal, Robinson argues that (1) the State failed to prove him guilty beyond a
reasonable doubt where there was no physical evidence linking him to the shooting, (2) his life
sentence for first degree murder was unconstitutional as applied to him, and (3) trial counsel was
ineffective for not fully developing the record and requesting an evidentiary hearing for
Robinson’s claim that a mandatory life sentence was unconstitutional as applied to him.
¶ 54 A. Guilt Beyond a Reasonable Doubt
¶ 55 Robinson first contends that the State failed to prove him guilty beyond a reasonable
doubt of first degree murder and aggravated battery with a firearm. Specifically, Robinson
argues that the convictions were not supported by credible testimony where the witnesses were
inconsistent, self-interested, unreliable, and incredible. The State responds that Robinson’s
argument amounts to a request for us to reject the jury’s findings of fact and reweigh the
evidence in Robinson’s favor. We agree with the State.
¶ 56 Where a defendant alleges that the State’s evidence was insufficient to sustain a
conviction, the reviewing court must ask “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307,
318 (1979); People v. Cunningham, 212 Ill. 2d 274, 278 (2004). This standard applies in all
criminal cases, regardless of the nature of the evidence. People v. Pollock, 202 Ill. 2d 189, 217
(2002).
¶ 57 To prove a defendant guilty of first degree murder, the State must prove the defendant
killed another individual without lawful justification, and that he intended to kill or do great
14 No. 1-19-1087
bodily harm to that individual, or that he took an action that he knew created a strong probability
of death or great bodily harm. 720 ILCS 5/9-1(a)(1-2) (West 2020). To prove a defendant guilty
of aggravated battery with a firearm, the State must prove that he committed a battery and
knowingly discharged a firearm which caused injury to another person. 720 ILCS 5/12-
3.05(e)(1) (West 2020).
¶ 58 Where a finding of guilt depends on eyewitness testimony, a reviewing court must decide
whether, in light of the record, a fact finder could reasonably accept the testimony as true beyond
a reasonable doubt. Cunningham, 212 Ill. 2d at 279. In conducting this inquiry, the reviewing
court must not retry the defendant. Id. The reviewing court must carefully examine the record
evidence while bearing in mind that it was the fact finder who saw and heard the witnesses. Id. at
280.
¶ 59 Here, Hampton testified that she was in the car with Dortch when they picked up
Robinson, whom she had known since she was a child. Robinson exited the car with a shirt
covering half his face and shot at a group of people in a park. Ross testified that he saw
Robinson, whom he had met on several occasions, exit the car with a shirt over his face and
shoot at a group of men in Horan Park. Williams testified that he saw a person exit the car, with a
shirt obscuring some of his face, and shoot at a group of people in the park. Williams gave a
description of the shooter that matched Robinson. Boyd testified to the grand jury that he saw
Robinson on the date in question, shortly after the shooting, and that Robinson stated he had
“just scored.” A reasonable factfinder could accept as true these eyewitness testimonies beyond a
reasonable doubt.
¶ 60 Nevertheless, Robinson takes issue with certain aspects of each eyewitness’s testimony.
Robinson argues that Ross’s testimony could not be true because he testified that the shooting
15 No. 1-19-1087
took place at around 10:30 to 10:35 a.m., which was corroborated by a 9-1-1 call that was
recorded at 10:35:59 a.m., but Sergeant Gaynor testified that Ross was not out of range of the
monitoring system until 10:40 a.m. Robinson contends that this discrepancy shows that Ross was
motivated, as a rival gang member, to lie to police about Robinson’s involvement.
¶ 61 However, Ross’s testimony was that the range of his electronic home monitoring device
allowed him to walk down the block before the alarm would go off. Ross testified that he was
outside of his home at around 10:30 or 10:35 a.m., when he saw a car driving up and down his
block before entering an alley. Ross witnessed Robinson get out of the car and shoot at a group
of people. Ross went back inside his house to get his brother, and then left the block, triggering
the alarm for his monitoring system, to see the damage. Ross did not return to his house until
after the police arrived. Accordingly, Robinson was inside the range of the EHM while
witnessing the shooting, and a factfinder could find that the EHM was not triggered until he left
his block.
¶ 62 Robinson contends that the EHM records show that Ross was outside the EHM range at
7:48 a.m., which demonstrates that the EHM equipment was sensitive, and the alarm would have
sounded when he exited the house. However, Ross testified at trial that he told the EHM caller
that he was taking his garbage out, but that he had lied and was “probably” selling drugs. A
factfinder could find that at 7:48 a.m. when the alarm went off, Robinson had left his block to
sell drugs.
¶ 63 Robinson also takes issue with Ross’s failure to identify Dortch as the driver of the car
despite an unobstructed view of the vehicle. However, as the State points out, there was no
testimony presented that Ross knew Dortch before the shooting, whereas Ross testified that he
knew Robinson well. Robinson was the one that pulled out a gun and shot at a group of people. It
16 No. 1-19-1087
would be reasonable for a factfinder to find that Ross would not likely be looking at the driver
during this incident, regardless of whether the view was unobstructed.
¶ 64 Robinson further contends that Ross’s testimony was untrustworthy because Green
testified that he had never seen Ross and Robinson together. However, that does not negate
Ross’s testimony that he knew Robinson. Robinson’s argument that Ross lied on the stand to
remove Robinson as a rival gang member and to get favorable treatment in an unrelated case is
nothing more than speculation, unsupported by any evidence in the record.
¶ 65 Finally, Robinson argues that Ross contradicted his prior grand jury testimony on the
stand when he stated that he saw Robinson with a gun. He explained at trial that he must have
misunderstood the question at the grand jury. In this case, the jury was tasked with resolving
these inconsistencies and judging Ross’s credibility. See People v. Hogan, 388 Ill. App. 3d 885,
895 (2009) (it is the function of the jury as the trier of fact to resolve conflicts or inconsistencies
in the evidence).
¶ 66 Robinson also contends that Boyd’s grand jury testimony was unreliable because he
disavowed it at trial. During his grand jury testimony, Boyd stated that he saw Robinson exit a
car, enter a trap house, pick up a gun, drive away, return to the trap house, and brag about
shooting several people. At trial, Boyd recanted his grand jury testimony and said that he had
lied to secure a dismissal for a pending charge of unlawful possession of a handgun and an illicit
substance.
¶ 67 We find People v. Morrow, 303 Ill. App. 3d 671 (1999), instructive here. In Morrow, the
defendant was indicted for murder and armed robbery, and a witness implicated him in a pretrial
statement to detectives and an ASA, and in her testimony before the grand jury. Id. at 673-74. At
trial, the witness denied knowing the victim and being present at the murder, but did not deny
17 No. 1-19-1087
that she gave the pretrial statement and grand jury testimony. Id. at 674-75. The defendant was
convicted and argued on appeal that his convictions were solely based on the witness’s
“inherently untrustworthy” testimony. Id.
¶ 68 On appeal, this court explained that even with “no corroborative evidence, it does not
necessarily portend that, as a matter of law, a recanted prior inconsistent statement *** cannot
support a conviction.” Id. at 677. If a prior statement meets the requirements of section 115-10.1
of the Illinois Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2016)),
which permits the use of a witness’s prior inconsistent statement as substantive evidence when
certain criteria is met, a finding of reliability and voluntariness is automatically made and it is for
the jury, after hearing the declarant’s inconsistent testimony, to weigh the statement and decide
whether it was voluntary. Id. See also People v. Craig, 334 Ill. App. 3d 426, 440 (2002)
(“additional corroboration is not required and we are not to engage in looking for
corroboration”); and People v. Davis, 2018 IL App (1st) 152413, ¶ 48 (the fact that witnesses
recanted identifications at trial and the convictions rested primarily on those witnesses’ “properly
admitted prior inconsistent statements without corroboration does not warrant reversal.”)
¶ 69 Here, Boyd’s grand jury testimony was corroborated by Hamilton and Ross, both of
whom testified they saw Robinson with a gun. The jury found Boyd’s grand jury testimony
implicating Robinson more credible than his trial testimony denying that he witnessed the events
and asserting that his prior statements were guided by a detective. This determination was well
within the purview of the jury. See Hogan, 388 Ill. App. 3d at 895 (it is the function of the jury
as the trier of fact to resolve conflicts or inconsistencies in the evidence).
¶ 70 To the extent that Robinson relies on People v. Arcos, 282 Ill. App. 3d 870 (1996), and
People v. Reyes, 265 Ill. App. 3d 985 (1993), we find both cases to be inapposite. In Arcos, there
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was only one eyewitness and the trier of fact specifically found that the witness was not credible.
Id. at 876-77. In Reyes, the witness’s recanted testimony was uncorroborated and the only
evidence of the defendant’s guilt. Id. at 990. Here, Boyd’s grand jury testimony was corroborated
by other testimony presented at trial.
¶ 71 Moreover, even if the jury believed his recantation of his grand jury testimony, the
remaining evidence was sufficient to prove Robinson guilty beyond a reasonable doubt. The
testimony of a single eyewitness is sufficient to support a conviction. People v. Harris, 2016 IL
App (1st) 141744, ¶ 23. Hamilton and Ross, both of whom knew Robinson prior to the date in
question, identified him as the shooter.
¶ 72 Robinson further contends that Hampton’s testimony was not credible because she had a
criminal history and was reluctant to go to the police. We reiterate that this evidence was
presented to the jury, and the jury, as the trier of fact, was tasked with resolving any
inconsistencies in the evidence and weighing Hamilton’s credibility. See Hogan, 388 Ill. App. 3d
at 895 (it is the function of the jury as the trier of fact to resolve conflicts or inconsistencies in
the evidence). Hamilton’s testimony was corroborated by other evidence in the record, and even
if the jury were to discredit her testimony, there were two other eyewitness testimonies.
¶ 73 Similarly, Robinson contends that Williams was untrustworthy because he testified at
trial that the shooter had dreadlocks, but did not mention this fact to police investigators.
However, Williams did not give a description of Robinson’s hair at all before trial. The
description he gave to police and at the grand jury matched Robinson. The additional detail of
Robinson’s dreadlocks at trial did not make his prior statements untrustworthy.
¶ 74 Finally, Robinson argues Detective Frausto was untrustworthy because he made a contact
card for Robinson, but did not describe Robinson’s facial tattoo. However, Detective Frausto
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explained at trial that there was no box for him to make note of that. The card had Robinson’s
race, height, name, date of birth, and home address. It also stated that Robinson had dreadlocks.
The jury was presented with this evidence and resolved any discrepancies or inconsistencies
therein.
¶ 75 B. Constitutionality of Sentence
¶ 76 Robinson’s second argument on appeal is that his sentence is unconstitutional under both
the eighth amendment and the proportionate penalties clause. Specifically, he contends that the
trial court failed to give sufficient weight to mitigating factors like age and rehabilitative
potential. The State responds that Robinson fails to produce a sufficient factual basis as to why
his sentence is unconstitutional as applied to him.
¶ 77 The eighth amendment of the United States Constitution, which is applicable to the states
through the fourteenth amendment, prohibits government from imposing “cruel and unusual
punishments” for criminal offenses. Roper v. Simmons, 543 U.S. 551, 560 (2005). The eighth
amendment guarantees individuals the right not to be subjected to excessive sanctions. Id. The
right flows from the “precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.” Weems v. United States, 217 U.S. 349, 367 (1910). “By protecting
even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the
government to respect the dignity of all persons.” Roper, 543 U.S. at 560. The Supreme Court
explained:
“The prohibition against ‘cruel and unusual punishments,’ like other expansive
language in the Constitution, must be interpreted according to its text, by
considering history, tradition, and precedent, and with due regard for its purpose
and function in the constitutional design. To implement this framework, we have
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established the propriety and affirmed the necessity of referring to ‘the evolving
standards of decency that mark the progress of a maturing society’ to determine
which punishments are so disproportionate as to be cruel and unusual.” Id. at 560-
61.
¶ 78 When the offender is a juvenile and the offense is serious, there is a genuine risk of
disproportionate punishment. People v. Holman, 2017 IL 120655, ¶ 33. In Roper, Graham, and
Miller, the United States Supreme Court addressed that risk and concluded that youth matters in
sentencing. Roper held that the eighth amendment prohibited capital sentences for juveniles who
commit murder. 543 U.S. at 578-79. Graham held that the eighth amendment prohibited
mandatory life sentences for juveniles who commit nonhomicide offenses. 560 U.S at 83. And
Miller held that the eighth amendment prohibited mandatory life sentences for juveniles who
commit murder. 567 U.S. at 489-90. Our supreme court in Holman, 2017 IL 120655, ¶ 43,
adopted the Miller factors.
¶ 79 However, these protections afforded by the eighth amendment apply directly only to
juveniles. As our supreme court has noted, the United States Supreme Court “has clearly and
consistently drawn the line between juveniles and adults for the purpose of sentencing at the age
of 18.” People v. Harris, 2018 IL 121932, ¶ 58. It stated that “claims for extending Miller to
offenders 18 years of age or older have been repeatedly rejected.” Id. ¶ 61. Because Robinson
was 18 years old at the time of his crime, his eighth amendment challenge necessarily fails. 1
1 While our supreme court in Harris stated, “to the extent that defendant may have intended to raise an as-applied challenge under the eighth amendment, that claim would fail for the same reason as his challenge under the Illinois Constitution failed, because no evidentiary hearing was held and no findings of fact were entered on how Miller applies to him as a young adult,” (Id.¶ 53), we can find no other cases where an as-applied challenge under the eighth amendment succeeded for a young adult aged 18 or older.
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¶ 80 Turning to Robinson’s as-applied challenge under the proportionate penalties clause, we
note that the proportionate penalties clause of the Illinois Constitution provides that “[a]ll
penalties shall be determined 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 supreme court
has explained that this unique emphasis on rehabilitative potential provides “a limitation on
penalties beyond those afforded by the eighth amendment.” People v. Clemons, 2012 IL 107821,
¶¶ 39-41. It has specifically acknowledged that young adult offenders are “not necessarily
foreclosed” from raising as-applied challenges under the proportionate penalties clause to life
sentences based on the evolving science on juvenile maturity and brain development. Harris,
2018 IL 121932, ¶¶ 46, 48 (citing People v. Thompson, 2015 IL 118151).
¶ 81 In People v. House, 2021 IL 125124, the 19-year-old petitioner raised and an as-applied
challenge to his life sentence under the proportionate penalties clause in a postconviction
petition. Our supreme court found that because there was not an evidentiary hearing on that issue
in the trial court, the petitioner did not provide or cite to any evidence relating to how the
evolving science on juvenile maturity and brain development applied to his specific facts and
circumstances, and the trial court made no factual findings critical to determining whether the
science concerning juvenile maturity and brain development applied to petitioner specifically.
While the appellate court cited articles from a newspaper and an advocacy group in support of its
decision to find the petitioner’s sentence unconstitutional, our supreme court noted that “no trial
court has made factual findings concerning the scientific research cited in the articles, the limits
of that research, or the competing scientific research, let alone how that research applies to
petitioner’s characteristics and circumstances.” Id. ¶ 29. Because the court determined that the
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record in that case required further development, it remanded the case for second-stage
postconviction proceedings. Id. ¶ 32.
¶ 82 Similarly in Harris, 2018 IL 121932, the 18-year-old defendant claimed that his life
sentence was unconstitutional as applied to him under the proportionate penalties clause. Our
supreme court noted that “[a]ll as-applied constitutional challenges are, by definition, dependent
on the specific facts and circumstances of the person raising the challenge,” and that it is
therefore paramount that the record be sufficiently developed in terms of those facts and
circumstances for appellate review. Id. ¶ 39. The court stated:
“A court is not capable of making an ‘as applied’ determination of
unconstitutionality when there has been no evidentiary hearing and no findings of
fact. Without an evidentiary record, any finding that a statute is unconstitutional
‘as applied’ is premature.” Id.
¶ 83 The Harris court noted that the record “includes only basic information about defendant,
primarily from the presentence investigation report. An evidentiary hearing was not held, and the
trial court did not make any findings on the critical facts needed to determine whether Miller
applies to defendant as an adult.” Id. ¶ 46. The court stated that the “critical point” is “whether
the record has been developed sufficiently to address the defendant’s constitutional claim.” Id. ¶
41. As the court in Harris emphasized, “a reviewing court is not capable of making an as-applied
finding of unconstitutionality in the ‘factual vacuum’ created by the absence of an evidentiary
hearing and findings of fact by the trial court.” Id. (quoting People v. Minnis, 2016 IL 119563, ¶
19).
¶ 84 The Harris court ultimately declined to remand the matter for an evidentiary hearing,
finding that because the defendant failed to raise his as-applied challenge in the trial court,
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therefore depriving the trial court the opportunity to make any findings of fact on the defendant’s
specific circumstances, his challenge was premature. Id. ¶ 46-48. It noted that the defendant was
not foreclosed from raising his as-applied challenge in another proceeding, and that the Post-
Conviction Hearing Act “specifically allows for raising constitutional questions which, by their
nature, depend upon facts not found in the record.” Id. ¶ 48.
¶ 85 Here, Robinson did raise his as-applied challenge in his posttrial motion in the trial court.
Defense counsel argued the motion during the sentencing hearing, but there was no evidentiary
hearing held on the motion. While the trial court noted it had reviewed the submitted article,
letters from Robinson’s friends and families, and the PSI, its general comments did not amount
to factual findings necessary to determine whether a mandatory life sentence was
unconstitutional as applied to Robinson. The trial court made no factual findings critical to
determining whether the science concerning juvenile maturity and brain development applied to
petitioner specifically. House, 2021 IL 125124, ¶ 29. Accordingly, because Robinson raised this
issue in the trial court, but no evidentiary hearing was held, we remand for an evidentiary hearing
on Robinson’s challenge that his mandatory life sentence is unconstitutional as applied to him.
See People v. Jones, 2021 IL App (1st) 180996, ¶ 33 (“We find it makes no sense to deny
defendant’s claim now, only to see the same claim back again in a postconviction petition”). 2
¶ 86 III. CONCLUSION
¶ 87 For the foregoing reasons, we affirm Robinson’s convictions but remand the case for an
evidentiary hearing and, if necessary, a new sentencing hearing. If the sentencing statute at issue
is found to be constitutional as applied to Robinson, there would be no need for a new sentencing
2 Because we are remanding this case for an evidentiary hearing for the trial court to make findings of fact critical to determining whether the science concerning juvenile maturity and brain development applied to petitioner specifically, we need not address Robinson’s claim of ineffective assistance of counsel for counsel’s failure to request an evidentiary hearing.
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hearing and his life sentence would remain. If found unconstitutional as applied to Robinson, a
new sentencing hearing should be held to determine an appropriate sentence.
¶ 88 Affirmed in part and remanded for further proceedings.