People v. Ruiz

2021 IL App (1st) 182401

Opinion

2021 IL App (1st) 182401 No. 1-18-2401 Opinion filed May 25, 2021

SECOND DIVISON ______________________________________________________________________________

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. 96 CR 6048 ) JAIME RUIZ, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, the 17-year-old defendant, Jamie Ruiz, was convicted of murder and

attempted murder and sentenced to concurrent terms of 30 years and mandatory natural life

imprisonment. See 730 ILCS 5/5-8-1(a)(1)(c)(i) (West 1996). By operation of law, this sentence

was ordered to be served consecutively with a separate 30-year sentence imposed for the

defendant’s prior and unrelated 1994 murder conviction (No. 94-CR-24440). See id. § 5-8-4(h).

After the defendant’s conviction and sentence were affirmed on appeal, he sought review of his

mandatory natural life sentence by means of postconviction proceedings, arguing, inter alia, that

it was unconstitutional as applied to him under Miller v. Alabama, 567 U.S. 460 (2012). By No. 1-18-2401

agreement of the parties, the defendant’s sentence was eventually vacated, and the cause was

remanded to the trial court for resentencing.

¶2 On remand, the defendant, who was now 40 years old, was resentenced to 50 years on the

murder charge and 30 years on the attempted murder conviction to be served concurrently. Again,

by operation of law, these sentences were ordered to run consecutively to the defendant’s prior 30-

year sentence in case No. 94-CR-24440. See 730 ILCS 5/5-8-4(h) (West 1996).

¶3 On appeal, the defendant challenges the constitutionality of the newly imposed 50-year

sentence. In this respect, he makes three contentions. First, he argues that the 50-year sentence is

a de facto life sentence and therefore unconstitutional as applied to him both under the federal and

state constitutions (U.S. Const., amend. VIII; Ill. Const. 1970, art. I, § 11). Specifically, he argues

that in imposing this sentence, the trial court failed to find that he was permanently incorrigible

and, in fact, stated on the record that it did not intend to impose either a natural or de facto life

sentence. Nonetheless, in determining what constitutes de facto life, the trial court then improperly

relied on day-for-day good-time credit to find that 50 years is not de facto life. Second, on appeal,

the defendant contends that because by operation of law the newly imposed 50-year sentence must

be served consecutively with his prior 30-year sentence in case No. 94-CR-24440, the aggregate

mandatory sentence of 80 years’ imprisonment is itself a de facto life sentence and therefore

unconstitutional as applied to him both under the United States and Illinois Constitutions (U.S.

Const., amend. VIII; Ill. Const. 1970, art. I, § 11). Third, the defendant contends that his right to

due process was violated during the resentencing hearing, when the trial court failed to admonish

him that he could elect to be resentenced under either the law at the time the offenses were

committed (1996) or the law at the time of resentencing (2018). Alternatively, the defendant

contends that his counsel was ineffective for not urging him to elect to be sentenced under the

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2018 law. For the following reasons, we vacate the defendant’s sentence and reverse and remand

for a new sentencing hearing with instructions.

¶4 I. BACKGROUND

¶5 Because the 15-year procedural history of this case is complex and lengthy, we set forth

only those facts relevant to the resolution of this appeal.

¶6 A. Undisputed Facts

¶7 It is undisputed that while still a juvenile, the defendant, who was an active member of the

Latin Kings, participated in two separate murders, for which he was charged and convicted. In the

first occurrence (case No. 94-CR-24440), the defendant was found guilty by accountability of the

1994 murder of Daniel Martinez and sentenced to 30 years’ imprisonment on July 12, 1996. In

that case, the evidence at trial established that, on August 25, 1994, the then 16-year-old defendant

was with other Latin King members in rival Two-Six gang territory looking for enemy gang

members when he passed the victim, Martinez, and heard Martinez comment to a friend not to

“hang out on the streets looking for trouble, but to make something out of his life.” The defendant

approached Martinez and asked him why he had “disrespected his love?” When Martinez indicated

he did not want any trouble and tried to walk away, the defendant punched him and called his

fellow gang members to join in. The victim tried to run down an alley but was caught by the

defendant and his fellow gang members and beaten. At that point, another Latin King member

pulled out a handgun and shot the victim in the head and neck. At trial, the defendant was identified

as a “Cocina,” or a second-in-command in one of the Latin Kings’ pee wee groups, and the shooter

was identified as the “Inca,” or the leader.

¶8 While out on bond and awaiting trial in that case, on February 7, 1996, the defendant

committed the instant crime (case No. 96-CR-6048). Specifically, the defendant, who was now 17

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years old, went into enemy Two-Six gang territory, followed, and then shot two victims (Julio

Rodriguez and Joel Rodriguez), believing they were rival gang members. One of the victims died

from his gunshot wounds. Because the details of the 1996 case are set forth in detail in this court’s

decision on direct appeal in People v. Ruiz, No. 1-99-1372 (2000) (unpublished order under Illinois

Supreme Court Rule 23), we need not repeat them here. After the jury found the defendant guilty

of murder and attempted murder, on March 3, 1999, the defendant was sentenced to mandatory

natural life imprisonment on the murder conviction and a concurrent sentence of 30 years’

imprisonment on the attempted murder charge. See 730 ILCS 5/5-8-1(a)(1)(c)(i) (West 1996). In

addition, because the defendant committed the instant crime while he was out on bond on the first

murder charge, the sentence in the instant case was required to be served consecutively with the

30-year sentence already imposed in case No. 94-CR-24440. See id. § 5-8-4(h).

¶9 B. Procedural History

¶ 10 After the defendant unsuccessfully appealed his conviction and sentence, for the next

decade, he pursued numerous claims on collateral review. Relevant to this appeal, on July 10,

2013, he sought leave to file his third successive postconviction petition asserting that his natural

life sentence was unconstitutional under Miller, 567 U.S. 460. After the defendant was granted

leave to proceed with his successive petition, that petition was advanced to the second stage of

postconviction proceedings, and the defendant was appointed counsel. The case was then

continued for years until the United States Supreme Court denied the State’s writ of certiorari in

People v. Davis, 2014 IL 115595, cert. denied, 574 U.S. 1026 (2014), which had held that Miller

applied retroactively on collateral review. At this point, the State conceded that Miller required

that the defendant be granted a new sentencing hearing. Accordingly, on November 30, 2017, by

agreement of the parties, the trial court vacated the defendant’s sentence of natural life

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imprisonment and remanded the case for a new sentencing hearing.

¶ 11 At the time of remand, the defendant was 40 years old and had already been in prison for

over 23 years.

¶ 12 C. The Defendant’s Sentencing Memorandum

¶ 13 Prior to the resentencing hearing, defense counsel filed a sentencing memorandum asking

that the defendant be resentenced to 30 years’ imprisonment on his murder charge. In support, the

memorandum attached 43 exhibits, including, inter alia, (1) a June 8, 2018, report from

Chicagoland gang expert Professor John Hagedorn opining about the defendant’s rehabilitative

potential and his present maturity; (2) certificates from numerous programs that the defendant had

completed while incarcerated; (3) the Illinois Department Of Correction (IDOC)’s visitor logs

from 1999 to the present showing more than 940 visits to the defendant by family and friends;

(4) letters from numerous family members and friends demonstrating the violence, instability, and

volatility of the defendant’s childhood, the defendant’s current efforts at rehabilitation, and the

family’s intention of providing the defendant with housing and stable work once he was released

from prison; (5) a Chicago Tribune article from 1990 discussing the gang violence in the

defendant’s neighborhood; and (6) a 1994 police report from the murder of the defendant’s uncle,

Roberto Torres (Roberto), who was savagely beaten to death in an alleyway when the defendant

was a teenager. Citing these numerous exhibits, the memorandum argued that all five of the Miller

factors counseled in favor of a reduced sentence.

¶ 14 D. Resentencing Hearing

¶ 15 The resentencing hearing was held on September 26, 2018. Prior to any arguments, the trial

court asked the parties to clarify the defendant’s potential “exposure” under the law. The State

indicated that under the 1996 law, the defendant was eligible for a sentence between 20 and 60

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years but that he was also “extendable” by virtue of having committed a same-class crime less than

10 years before the instant murder. Accordingly, the State argued, the defendant’s sentence could

be extended from 60 to 100 years and even to natural life. See 730 ILCS 5/5-8-2 (West 1996).

After the subsequent instruction conference, which was held off the record, the trial court stated

that it had spoken to the attorneys and that “everybody underst[ood] the potential sentence [the

defendant was] facing at this hearing, including that he could be sentenced to a discretionary life

sentence. It would not be mandatory, but discretionary.”

¶ 16 The parties then proceeded with brief opening arguments. Defense counsel sought the

imposition of a 30-year sentence for the defendant’s murder conviction. The State, on the other

hand, argued that the court should use its discretion to sentence the defendant to a term

“commensurate with the seriousness of the offense.” In addition, the State asked the court to keep

in mind that under the 1996 law, any sentence it imposed was eligible for good-time served day-

for-day credit. See 730 ILCS 5/3-6-3 (West 1994). 1

1 We note that both during the resentencing hearing and on appeal, the parties continue to refer to good-time served day-for-day credit as applicable under the “1996 law” (i.e., the year that the petitioner committed the instant crime). We further note, however, that technically this language is to be found in the 1994 version of the statute, which allowed good-time served day-for-day credit for any sentence imposed. See 730 ILCS 5/3-6-3 (West 1994) (“the prisoner shall receive one day of good conduct credit for each day of service in prison other than where a sentence of 'natural life' has been imposed.”). In 1995, however, the legislature amended this section, by removing day-for-day credit for any sentence imposed, except natural life, including a murder sentence. See Pub. Act. 89-404 (eff. Aug. 20, 1995). Therefore, at the time of the petitioner’s original 1996 sentencing hearing, truth-in-sentencing would already have been in place, and he would not have been eligible for good-time served day-for-day credit. See 730 ILCS 5/3-6-3 (West 1996). Nonetheless, three years after that original sentencing hearing, our supreme court invalidated the truth-in-sentencing amendments because the act under which they were passed—Pub. Act. 89-404 (eff. 20, 1995)--violated the single subject clause of the Illinois constitution. See People v. Reedy, 186 Ill. 2d 1 (1999). The legislature then deleted and recodified the entire truth-in- sentencing legislation originating from Pub. Act. 89-404, and the new truth-in-sentencing amendments became effective on June 19, 1998. See Pub. Act. 90-592 (eff. June 19, 1998). The new recodification, however, did nothing to cure the unconstitutionality of Pub. Act. 89-404. See Reedy, 186 Ill. 2d at 17-18. Therefore, under our supreme court’s precedent, at the time of the petitioner’s resentencing hearing, under the “1996 law” the petitioner was eligible for good-time served day-for-day sentencing credit.

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¶ 17 The parties next presented their evidence. In mitigation, the defendant offered his 43

exhibits and the testimony of the following five witnesses: (1) his sister Maria Carmen Ruiz (Ruiz);

(2) his cousin Jacqueline Ibarra (Ibarra); (3) his daughter Perla Karina Ruiz (Perla); (4) his

girlfriend Sonia Garcia; and (5) retained Chicagoland gang expert, Professor Hagedorn. For

purposes of brevity, we summarize the evidence that was adduced in mitigation.

¶ 18 It is undisputed that the defendant is the youngest of four children of Mexican immigrants

with three older sisters. The defendant’s sister, Ruiz, and his cousin, Ibarra, both testified that as a

child, the defendant suffered severe medical complications, requiring him to wear a colostomy

bag, which he found embarrassing and which impeded his ability to connect with his peers. In

addition, both Ruiz and Ibarra averred that the defendant grew up in an unstable environment.

According to Ruiz, while their mother was “very kind” and overprotective, their father was an

abusive alcoholic, who was often physically violent with their mother. As Ruiz explained, the

family went through “a lot of emotional abuse at home,” and the children were all afraid of him.

Ibarra similarly testified that “anything would trigger [him] to go physical on my aunt,” and as

children “we *** just comforted each other.” In her letter, admitted into evidence, the defendant’s

second sister, Elvira Vergara, similarly described their childhood, noting that while their mother

worked multiple jobs to support the family, their father was a violent alcoholic and was either

drunk, violent, or absent from the home. As a result, the defendant had no relationship with his

father.

¶ 19 The neighborhood of Little Village, where the defendant grew up, was also violent and

replete with gangs and drugs. The defendant’s uncle, Roberto, was killed by gangs in April 1994

when the defendant was only a teenager. Ibarra testified that Roberto was savagely beaten to death

in an alley and left to die, but that the family never discussed his death because violence was

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considered “normal.” She believed that this made it even more difficult for the young defendant

to cope.

¶ 20 The evidence at the hearing further established that the defendant’s three older sisters

moved out of the home in their teens, leaving the defendant unsupervised and unsupported.

According to a letter from the defendant’s childhood acquaintance, Luz Maria Cervantes, as a

young teen the defendant was expected to “financially contribute[ ] to the household to make do.”

As Ibarra explained, at 16, the family considered the children to be adults and expected them to

contribute just as they had done when they were growing up in Mexico. As was common in the

neighborhood, the defendant dropped out of school at 15. Ibarra explained that the highest level of

education in their family was fifth or sixth grade, and “at 16, we didn’t think about options, about

school or anything of that nature.”

¶ 21 Ruiz and Ibarra next testified that they both had a good relationship with the defendant

when he was younger. Ibarra averred that, as a child, the defendant was very calm and respectable,

just “a normal kid who wanted to be part of a family.” He often came to Ibarra’s house and hung

out with her and her boyfriend playing video games. Ruiz and Ibarra both stated that it was not

until all three of his sisters left home that the defendant began hanging out with “the wrong crowd”

and changed. According to Ibarra, when he was in around eighth grade the defendant began to

distance himself from the family and to hang out with his own peers. At this point he became very

confused, angry, and rebellious. He made friends with a boy from the neighborhood who was in a

gang and, eventually, led by this boy, joined the gang himself.

¶ 22 Ibarra and Ruiz both believed that if the defendant had had a positive male role model, he

would not have joined the gang or committed either crime. Both believed that the crimes were the

result of his immaturity and gang involvement. Letters from family friends, Cervantes, and Elena

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Rangel similarly stated that the defendant’s actions were a result of his adolescent rebellion.

¶ 23 Ruiz further explained that after the defendant’s arrest on the first murder charge in 1994,

their mother attempted to help him, but that the defendant was too young to be able to help himself.

Ruiz testified that after their mother paid the bond for the defendant’s release, she also found the

defendant a job and encouraged him to “get his life on track.” However, at that point, the

defendant’s then-girlfriend, who idolized his gang lifestyle, became pregnant. Feeling

overwhelmed and depressed, the defendant continued to hang out with the “wrong crowd,” which

led to his commission of the instant crime.

¶ 24 Ruiz and Ibarra both testified that they have supported the defendant throughout his

incarceration and that he has greatly matured since the time he was a teenager. The defendant’s

present girlfriend, Garcia, similarly testified that the defendant has grown and matured since the

time of his offenses, reflected upon his past mistakes, and changed his entire way of thinking.

According to Garcia, since 2004, when she met him, the defendant has made incredible changes

in his life and is respectful, inquisitive, and deeply caring for his family. She also stated that she

would not be in a relationship with him if she believed that he was still actively involved in the

Latin Kings. The defendant’s daughter, Perla, who was born while the defendant was in jail,

similarly testified that the defendant is a loving and devoted father and grandfather, who has

become “one of her best friends.” Perla averred that the defendant encourages her to stay out of

trouble and that she knows he is a good person who does not want to return to “where he used to

be.”

¶ 25 Numerous family members and friends similarly attested to the defendant’s involvement

and positive influence in their lives since his incarceration. Fellow prisoner Miguel Brito Jr.

credited the defendant with his years of continued education, explaining that the defendant had

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insisted that he sign up for the General Educational Development (GED) classes and continued to

encourage him, giving him information “on schools that provide[d] courses to offenders through

mail so [that Brito] could enroll.” Similarly, childhood friend, Miguel A. Saucedo wrote that based

on the defendant’s advice to “stay in school, stay out of trouble, don’t join[ ] gangs, and go to

college,” he escaped their neighborhood and pursued higher education, including a doctoral

degree. The defendant’s nephew Francisco Franco Jr. and niece Lilliana Vergara similarly credited

their accomplishments to their uncle’s encouragement. As Franco wrote, his uncle not only

encouraged him to go to college but also “took it upon himself to read articles in magazines and

papers on what industries needed people to hire and what industries paid good.”

¶ 26 In addition, the evidence introduced at the hearing established that during his incarceration,

the defendant had completed numerous classes and workshops, including, inter alia, “Inside/Out

Dad,” “BURST,” “How to Succeed on the Streets,” “ADAPT,” “Crossroads Bible Institute,” and

chess classes. Throughout his incarceration, the defendant also consistently attended chapel,

practiced his Catholic faith, and regularly corresponded with Father Arturo J. Perez, who stated in

his letter that he believed the defendant now recognized the consequences of his actions and had

tried to better himself to the benefit of his family.

¶ 27 Finally, the defendant’s family offered evidence regarding the defendant’s plans upon

release from prison. Both Ibarra and Ruiz testified that the defendant had no intention of returning

to Little Village and would instead live with one of them in their homes, either in Burbank or

Oswego. Ibarra further testified that she would never invite the defendant into her home if she

believed that he was violent, especially since her two younger children still live at home. She

further stated that her husband, Jose Ibarra (Jose), who is a foreman in a construction company has

offered to provide the defendant a job and to teach him the trade. Jose’s letter to the court

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acknowledged the same.

¶ 28 In addition to the aforementioned evidence, at the sentencing hearing, Chicagoland gang

expert, Professor Hagedorn, testified in detail about the defendant’s rehabilitative potential. He

acknowledged that in his June 8, 2018, written report, he had concluded that the defendant does

not fall into the category of irretrievably depraved or permanently incorrigible juveniles, which

deserve prolonged and continued incarceration. Professor Hagedorn explained that in coming to

this conclusion, he considered his three interviews with the defendant, letters provided by the

defendant’s family members, his own research into Chicago gangs, transcripts and police reports

from the defendant’s crimes, and incident reports from the Cook County jail and IDOC.

¶ 29 Professor Hagedorn first testified that the 10th District neighborhood of Little Village,

where the defendant grew up, had been Latin King territory since the 1960s and was the dividing

line between two other rival gangs, the Two Sixers, and the Satan Disciples. According to

Professor Hagedorn, the 1990s, when the defendant was a teenager, were the most violent period

in Chicago’s history of gang wars. Because of the demise of the gang coalitions, in that decade,

the Latin Kings were at war with numerous other gangs in the neighborhood, including the Latin

Folks, the Two Sixers, the Latin Disciples, and the Satan Disciples. The mentality of the gang was

different from previous decades when the gang was more of a social or community organization.

This was a time of war and serious violence, and new gang members were expected to be soldiers,

defending the Latin King’s turf and seeking out enemies to fight.

¶ 30 The defendant joined the Latin Kings in 1992 when he was 14 years old and remained an

active member until his incarceration in 1996. According to Professor Hagedorn, during that time,

the defendant was one of four or five “shorties,” or junior Latin King members, in the local

Trumbull Avenue Latin King branch. The professor explained that such pee wee members were

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not officially considered members of the Latin King Nation by the older members and would not

have a structured hierarchy. Therefore, according to Professor Hagedorn, while the record of the

defendant’s 1994 trial states that he was “second in command” of the local pee wee group, this

does not reflect how these groups were organized at the time and it is inordinately unlikely that a

16-year-old, like the defendant, would have been named a “Cacique,” or second-in-command.

¶ 31 Professor Hagedorn next explained how the defendant became involved with gangs. He

stated that, as a young boy, the defendant was initially drawn to sports and did not see the gang in

his future. Around the fourth grade, however, he began having trouble in school and got a

reputation as a “troublemaker.” From then on, Professor Hagedorn explained, the defendant was

“treated as a dunce,” made to “stand in the corner,” and was embarrassed or shamed as a standard

disciplinary tactic. This alienated him from school and made him more susceptible to the bad

influences rampant in the neighborhood. It would be another five years, however, before the

defendant would succumb to peer pressure and join the Latin Kings following in the footsteps of

his best friend, Juan Torres.

¶ 32 According to Professor Hagedorn, the defendant joined the Latin Kings because they were

the peer group in the neighborhood, and the only way to not join them would have been to move

away—an option the defendant did not have. In addition, the defendant was “young and

impressionable,” and there were not enough “protective factors” to counter the “pulling factors”

for him to escape the gang scene. Specifically, apart from the problems he was already

experiencing in school, the defendant had a disruptive family life. The defendant’s father was an

abusive alcoholic, who was often violent with the defendant’s mother, which made the defendant

feel “hopeless and guilty.” Without any real father-son relationship, the defendant naturally looked

up to older gang members as role models who appeared to him to be well respected in the

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neighborhood. In addition, the defendant’s then girlfriend supported his gang activities and was

excited about his “tough-guy” violent street persona.

¶ 33 Professor Hagedorn next described the usual maturation process of gang members. He

explained that unlike the defendant, some gang members are indoctrinated into the gang by their

families, and therefore have a much harder time identifying with anything outside of the gang.

According to Professor Hagedorn, however, the defendant, who was never accepted by the gang

as a generations-old-member, has always experienced a conflict of identities: the pull of the gang

life and the belonging that it offers versus his more conventional identity, i.e., his religion and the

humbleness and hard-working ethic of his mother’s family who grew up in a small Mexican

village.

¶ 34 Professor Hagedorn next testified about identity replacement and how that allowed a gang

member to leave the gang. He explained that distancing from a gang is a process, which involves

taking small steps by participating in activities that are not part of the individual’s gang identity,

which ultimately leads to identity replacement. In Professor Hagedorn’s opinion, the defendant

was the definition of the distancing process as he has spent the last 11 years of his incarceration

avoiding gang activities and trying to better himself. Specifically, the defendant has been involved

in numerous prison programs, has become an avid reader, and has learned to get along with former

enemies, including a black Gangster Disciple he taught to read. In addition, the defendant has

counseled younger inmates from different gangs to use their prison time to do something positive.

According to Professor Hagedorn, in taking these steps over time, the defendant’s conventional

identity has prevailed over his gang identity, and he now sees himself as a family man who wants

to get out of prison to a place where “he has no enemies” and away from the Latin Kings.

¶ 35 Consistent with this identity, according to Professor Hagedorn, the defendant has expressed

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remorse for his crimes and the senselessness of the violence he committed. Professor Hagedorn

strongly denied that the defendant merely regretted being caught. Instead, the defendant expressed

remorse for everything his belonging to the Latin Kings had caused him to do, including ruining

other people’s lives as well as his own. The defendant told Professor Hagedorn that he regretted

not staying in school and having thrown away his life, stating: “I caused all that pain and hurt for

nothing. How can I tell someone your family died for no reason? For belief in a gang?”

¶ 36 Professor Hagedorn acknowledged that upon entering IDOC, the defendant continued to

be a member of the Latin Kings but stated that the defendant’s sole reason for continued

membership was survival. As the professor explained in his written report, the prison system at

first strengthens gang identity because young Latinos entering a black-dominated and gang-laden

inmate culture are fearful and their gang represents protection and solidarity. As the defendant

himself told the professor, inmates with no gang affiliation are at risk of being raped, robbed, or

assaulted. The first time the defendant went into the prison yard, he saw a prisoner “getting

slashed.” Accordingly, the defendant was greatly relieved when he met a fellow inmate from his

old Trumbull Avenue Latin King branch upon first arriving at Menard Correctional Center.

¶ 37 Professor Hagedorn opined that the defendant’s IDOC records support the conclusion that

the defendant’s continued membership in the gang is rooted in survival. Specifically, the professor

pointed out that, just as expected, in the first few years of his incarceration the defendant, who

would have been only 17 or 18 years old, obtained additional gang tattoos, and received several

tickets for insolence and fighting. However, in the next 11 years, spanning from 2000 to 2011,

uncharacteristic of what would have been expected of a true Latin King, the defendant was not

given a single gang-related ticket and was never found with any drugs, shanks, weapons, or gang

literature or propaganda.

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¶ 38 While the defendant has not publicly renounced the gang, Professor Hagedorn explained

that incarceration itself makes renunciation nearly impossible. Specifically, public denouncement

requires a debriefing session with IDOC. This invites violence against the denouncer and threats

to family members and loved ones and almost always requires a transfer to another prison or

placement into protective custody. Because the defendant’s mother still lives in Latin King

territory, the defendant feared that she would be in danger if he renounced his gang affiliation.

Accordingly, the defendant has been trying to distance himself from the Latin Kings without

endangering himself or his family. This has not come without a cost, as under IDOC rules, the

defendant’s refusal to publicly renounce the Latin Kings has prevented him from obtaining his

GED.

¶ 39 Despite his refusal to publicly denounce the Latin Kings, Professor Hagedorn opined that

it was very unlikely that, if released, the defendant, who is over 40 years old, would revert to his

prior gang activities. As the professor explained, if released, the defendant wants to get back to

school, obtain “a decent job,” be a part of his daughter’s and granddaughter’s lives, and work with

“troubled kids.” In addition, the defendant is adamant that upon release he will not return to Little

¶ 40 Professor Hagedorn further opined that he does not believe the defendant is manipulative,

or a hardcore gang member, pretending to be changed to get released and then resume criminality.

Instead, the two murders that the defendant committed represent a distant past characterized by the

defendant’s immaturity and impetuosity. In the professor’s opinion, the defendant has matured and

the main barrier to further change is his prison environment, rather than an unalterable violent or

evil character. Accordingly, with respect to sentencing, Professor Hagedorn recommended “a

concrete and not too distant release date.”

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¶ 41 On cross-examination, Professor Hagedorn acknowledged that IDOC’s records reflect that

in 2012 the defendant received a ticket for a non-gang related “dangerous disturbance.” The

professor explained, however, that after this ticket was issued, the defendant, in turn, filed a lawsuit

alleging excessive force against his prison guards. The IDOC’s Administrative Review Board

subsequently found that the allegations against the defendant were unsubstantiated and his record

was expunged.

¶ 42 Professor Hagedorn also acknowledged that IDOC’s records reflect that, in 2014, the

defendant received a security threat group ticket, which the Bureau of Prisons uses to refer to

gangs. That ticket was based on information from four confidential informants 2 claiming that the

defendant was on the seven-member advisory and disciplinary body of the Latin Kings, called the

Crown Council (Council), “at Menard and somewhere else.” Professor Hagedorn, however, found

these allegations to be flimsy and incredible and likely raised by “snitches” to benefit themselves.

He explained that from his years of research, which included conversations with numerous

contacts within the Latin Kings, some of whom were high ranking members and had served on the

Council, the Council is top secret and no general member of the Latin Kings within any of the

prisons would know who its members were. The reason for the secrecy is the Council’s power

within each Latin King chapter, which includes organizing elections for “Inca” and “Cacique,”

recruiting new members, expelling others, and even removing the “Inca.” Accordingly, unless the

confidential informants were also on the Council, which the professor believed was very unlikely,

2 Prior to the sentencing hearing, defense counsel sought information regarding the identities of these four confidential informants with the intent of questioning them and potentially subjecting them to cross-examination at the hearing. However, the trial court granted the Illinois Attorney General’s nonparty motion to quash the subpoena seeking the informants’ identities. Instead of moving to entirely exclude their allegations, defense counsel chose to have Professor Hagedorn evaluate and testify about them.

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they would have no way of knowing whether the defendant was one of the seven Council members.

Moreover, according to Professor Hagedorn, the defendant’s IDOC records, which lack tickets for

gang-related fights, violence, or gang literature after 2000, are inconsistent with what would be

expected of a high-ranking Latin King on the Council. As the professor explained, “defendant’s

lack of fighting to show loyalty to the King Nation would have certainly disqualified him from

being on the Crown Council.” In addition, Professor Hagedorn found glaring that the prison

refused to name the confidential informants or provide any context as to their allegations regarding

the defendant’s gang activities, apart from the bare allegation that he was on the Council. Professor

Hagedorn further noted the suspicious timing of the materialization of these allegations in the wake

of the defendant’s successful litigation against IDOC. In his report, the professor opined that it was

highly unlikely that there were ever any confidential informants and that instead the allegations

were concocted by prison staff as retaliation for that lawsuit that the defendant won.

¶ 43 On cross-examination, Professor Hagedorn further acknowledged that according to the

Cook County Sherriff’s records, the defendant was involved in a jail brawl on January 2, 2018.

The professor testified, however, that in his opinion this fight was both “stupid” and not gang

related. The professor stated that before making this judgment, he watched the video footage of

the fight, read the jail reports, and talked to the defendant. The professor explained that the fight

involved something of the highest importance to the defendant, namely his access to the telephone

and his ability to stay in touch with his daughter and family. Specifically, the defendant had been

moved to a new deck and because there were only three telephones on every deck, as a “newbie”

he had to negotiate access to the telephone. When he tried to do so, the defendant was told by the

large, “aggressive” inmate who controlled the telephone and who had the reputation of preying on

Latino inmates, stealing their commissary and bullying them: “[Y]ou ain’t gonna get on that

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phone.” The defendant told Professor Hagedorn that according to the “inmate code,” at that point

he had to stand up for himself—if he didn’t fight for the telephone “what [would] stop this guy

from stabbing me or stealing my shirt [later]?” Accordingly, Professor Hagedorn opined that the

incident was not gang motivated but rather partly race-driven and mostly a product of jail

conditions. As the professor’s report explained:

“Gang boundaries, even within Cook County Jail, are breaking down, but the elements of

survival and need for human contact with family and the outside world remain. Racial

tensions are high within the jail with Latinos a distinct and at times vulnerable minority.

[The defendant] has been socialized to survive in a prison environment and this brief fight

was his statement he would not become a victim and be denied use of the phone. The [Cook

County jail] incident report signed by J. Holmes concurs: ‘The reason for the incident was

over the telephone.’ ”

¶ 44 After the defense rested, the State presented seven exhibits in aggravation, including

(1) certified copies of the defendant’s two convictions; (2) the trial transcript and appellate court

record in case No. 96-CR-6048; (3) the defendant’s presentence investigation reports prepared for

case Nos. 96-CR-6048 and 94-CR-24440; (4) a group of reports from the Cook County Sherriff,

including the report describing the defendant’s 2018 jail altercation over the use of the telephone;

(5) a stipulation regarding the undisputed facts in case No. 94-CR-24440; and (6) a victim impact

statement provided as part of the original sentencing hearing by the mother of the victim Martinez

in case No. 94-CR-24440.

¶ 45 The defendant next gave a lengthy statement in allocution, expressing remorse for the pain

he had caused the victim’s families and his own family and stating that he would bear that shame

for the rest of his life. He regretted his sisters having to carry his responsibilities for his daughter

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and his mother. He was sorry for Perla growing up without her father, and he hoped for a chance

to be a part of her and her daughter’s lives. He also recognized that he contributed to the fear and

violence in his neighborhood. The defendant also stated that he had matured and wanted to help

other people avoid his fate. He asked the court to see him as the man he was today and provide

him with an opportunity to “make amends and pay retribution to society for the wrongs” he had

done.

¶ 46 After hearing all the evidence, the trial court sentenced the defendant to a term of 50 years’

imprisonment for murder and 30 years’ imprisonment for attempted murder to run concurrently.

Both sentences were again ordered to be served consecutively with the previously imposed 30-

year sentence in case No. 94-CR-24440. The court acknowledged that as such the sentences

“obviously [were] stacked for aggregate” but stated that it nonetheless believed it had “crafted a

sentence here that was fair to all the parties.”

¶ 47 In pronouncing the sentence, the court explicitly stated that the present circumstances did

not warrant either a natural life or a de facto life sentence. However, the court found that in

accounting for what constitutes a de facto life sentence, it needed to factor in good-time credit. As

the court explained:

“The de facto life essentially states that an individual should not [be] given life if they can’t

serve that sentence. However, again on this second case he is also eligible for day for day

good time credit. *** I’m looking at de facto life as to the earliest possibility of release.”

¶ 48 The court also noted that it had never encountered a situation where a defendant committed

a murder while on bond for another murder. The court mused whether the defendant’s crime (the

second murder), which it labeled an “execution,” was the “depraved individual” described in

Miller.

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¶ 49 The court then went through each of the Miller statutory factors. First, it noted the

defendant’s impetuousness as a young man in a rebellious state with depression. Next, it

recognized that the defendant faced pressure from his gang and that his home environment was

toxic and abusive. Regarding the rehabilitation evidence, the court stated that it was conflicted. On

the one hand, there was a lot of support from family and evidence that the defendant interacted

positively with them and had dreams and goals. On the other hand, the defendant had not formally

renounced the Latin Kings. The court further stated that the defendant had taken full responsibility

for his crimes and had made no excuses in his allocution. The court then noted that the only

evidence it saw that the defendant had trouble participating in his defense was his noncooperation

with the presentence investigator at his original 1996 sentencing hearing. In addition, the court

found that the defendant had no criminal history other than the two murder cases.

¶ 50 At the end of the sentencing hearing, the court instructed the defendant to continue in his

rehabilitation efforts, stating:

“The fact of the matter is, Mr. Ruiz, that your life doesn’t end today. And if you’re really

dedicated to what your family believes you’re dedicated to and what you told me, you have

a unique opportunity to touch people in your life. You can go and climb into a hole and

disassociate yourself from everyone else. You could be active in the gang. Or you could

help some young people that you have contact with. I truly believe that you have learned

some things since you were 15 and 16 years old, but I would strongly urge you to continue

your rehabilitation and your commitment to others, sir.”

¶ 51 Following the sentencing hearing, the defendant filed a motion to reconsider arguing,

inter alia, that because the 50-year sentence imposed had to be served consecutively to the 30-year

sentence for the 1994 murder, the sentence was a de facto life sentence and therefore

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unconstitutional as applied to him.

¶ 52 The trial court denied the defendant’s motion. With respect to the defendant’s de facto life

argument, the court stated:

“I think I did address the de facto life issue and how I did not feel it was de facto life

because, number one, it applies to the potential release date, what his age would be at the

potential release date. And [two,] these are two separate occurrences and not one

occurrence. There’s two separate homicides. One committed after he was on bond for the

first murder. So the question is whether or not it would even apply on the—on separate

cases. But I don’t believe that my sentence is, in fact, de facto life based on the fact that he

is entitled to day-for -day good time credit if he does qualify for the day for day good time

credit. And I believe he will be out of custody when he’s what 6[5]?”

The defendant now appeals.

¶ 53 II. ANALYSIS

¶ 54 On appeal, the defendant makes three contentions. First, he argues that his 50-year de facto

life sentence is unconstitutional as applied to him both under the eighth amendment of the United

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

Const. 1970, art. I, § 11), where the trial court failed to find that he was permanently incorrigible

and improperly relied on day-for-day good-time credit in determining the length of his sentence.

Second, the defendant argues that because the 50-year de facto life sentence must be served

consecutively with his prior 30-year sentence in case No. 94-CR-24440, the aggregate mandatory

sentence of 80 years’ imprisonment is a de facto life sentence and unconstitutional as applied to

him both under the United States and Illinois Constitutions. Third, the defendant contends that his

right to due process was violated during the resentencing hearing when the trial court failed to

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admonish him that he could elect whether to be resentenced under the 1996 or the 2018 law.

Alternatively, he contends that his counsel was ineffective for not urging him to elect to be

sentenced under the 2018 law, under which he would not have been eligible for a discretionary life

sentence.

¶ 55 Because we find this issue to be dispositive, we begin by addressing the defendant’s

argument regarding the constitutionality of his 50-year de facto life sentence.

¶ 56 In this respect, the defendant contends that since he was resentenced in 2018, (1) the Illinois

Supreme Court has unequivocally held that a sentence of more than 40 years imprisonment for a

juvenile is a de facto life sentence (see People v. Buffer, 2019 IL 122327,¶ 41) and (2) our appellate

court has repeatedly held that good-time credit is not to be counted when considering whether a

sentence amounts to de facto life (see, e.g., People v. Thornton, 2020 IL App (1st) 170677, ¶ 20;

People v. Peacock, 2019 IL App (1st) 170308, ¶ 19). The defendant therefore contends that

because the resentencing court considered good-time credit in determining whether the imposed

50-year term constituted de facto life, that sentence is unconstitutional as applied to him both under

the eighth amendment and the Illinois proportionate penalties clause. In addition, the defendant

argues that the trial court failed to adequately consider his youth and its attendant characteristics

and never found that he was permanently incorrigible to justify the imposition of such a de facto

life sentence. For the reasons that follow, we agree.

¶ 57 We first address the defendant’s arguments in context of the eighth amendment. The eighth

amendment of the United States Constitution prohibits “cruel and unusual punishments.” U.S.

Const., amend. VIII. It prohibits not only “inherently barbaric punishments” but those

“disproportionate to the crime.” Graham v. Florida, 560 U.S. 48, 59 (2010).

¶ 58 In Miller, the United States Supreme Court held that a sentence of mandatory life without

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parole for juveniles “violates the Eighth Amendment’s prohibition on ‘cruel and unusual

punishments.’ ” Miller, 567 U.S. at 465. The rationale was that minors are constitutionally

different from adults for purposes of sentencing, as they are less mature and responsible, more

impulsive, and more vulnerable to peer pressure than adults. Id. at 471-74. Miller did not preclude

life sentences for juveniles in all circumstances but rather required only that the trial court first

consider the special characteristics of young offenders, such as immaturity, impetuosity, and the

failure to appreciate risks and consequences, before imposing such a sentence on them. In other

words, the Court’s holding required that life-without-parole sentences be based on judicial

discretion rather than statutory mandates. See id. at 470.

¶ 59 Subsequently, in Montgomery v. Louisiana, 577 U.S. 190, 206 (2016), the United States

Supreme Court determined that Miller should apply retroactively and that state courts must apply

Miller in collateral proceedings. Montgomery held that while Miller did not prohibit all life

sentences for juvenile, such sentences were reserved for “the rare juvenile offender whose crime

reflects irreparable corruption.” (Internal quotation marks omitted.) Id. at 208. Montgomery

explained that Miller

“recognized that a [trial court] might encounter the rare juvenile offender who exhibits

such irretrievable depravity that rehabilitation is impossible and life without parole is

justified. But in light of ‘children’s diminished culpability and heightened capacity for

change,’ Miller made clear that ‘appropriate occasions for sentencing juveniles to this

harshest possible penalty will be uncommon.’ ” Id. (quoting Miller, 567 U.S. at 479).

¶ 60 Relying on the aforementioned principles, our supreme court has since extended Miller to

apply to juvenile offenders who were sentenced to life imprisonment, whether natural or de facto

(People v. Reyes, 2016 IL119271, ¶¶ 9-10), or mandatory or discretionary, and the trial court failed

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to consider their youth and attendant characteristics when imposing the sentence. People v.

Holman, 2017 IL 120655, ¶ 40. In addition, since the defendant’s resentencing hearing, our

supreme court has unequivocally held that a prison sentence of over 40 years imposed on a juvenile

offender constitutes a de facto life sentence in violation of the eighth amendment. See Buffer, 2019

IL 122327, ¶ 41.

¶ 61 According to our supreme court’s present interpretation of Miller, a sentencing court may

impose a life sentence on a juvenile offender but only after it has considered the defendant’s youth

and its attendant characteristics and made a finding of “irretrievable depravity, permanent

incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Holman, 2017

IL 120655, ¶ 46; see also Buffer, 2019 IL 122327, ¶ 24. In making this determination, our supreme

court and subsequently our legislature have instructed the sentencing courts to consider the

following non-exhaustive list of youthful characteristics: (1) the juvenile defendant’s

chronological age at the time of the offense and any evidence of his particular immaturity,

impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family

and home environment; (3) the juvenile defendant’s degree of participation in the homicide and

any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s

incompetence, including his inability to deal with police officers or prosecutors and his incapacity

to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Holman,

2017 IL 120655, ¶ 46; see also 730 ILCS 5/5-4.5-105(a) (West 2018). Therefore, if a trial court in

Illinois wishes to impose a sentence of more than 40 years on a juvenile offender, it must first go

through these factors and determine that the defendant is one of the rare juveniles “whose crime

reflects irreparable corruption.” (Internal quotation marks omitted.) Montgomery, 577 U.S. at 208;

see Buffer, 2019 IL 122327, ¶ 24.

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¶ 62 We are cognizant that while this appeal was pending, in Jones v. Mississippi, 593 U.S. ___,

141 S. Ct. 1307 (2021), the United States Supreme Court recently reinterpreted Miller and

Montgomery and held that the eighth amendment creates no federal requirement that a trial court

find a juvenile offender permanently incorrigible before imposing a life sentence. Nonetheless, in

so holding, the Supreme Court also noted that states are free to impose “additional sentencing

limits in cases involving defendants under 18” or “require sentencers to make [specific] factual

findings before sentencing an offender under 18 to life without parole.” Id. at ___, 141 S. Ct. at

1323. In fact, the Court held that states are not limited in the procedures they choose to apply in

determining when, as well as whether, a juvenile offender can ever be sentenced to life. Id. at ___,

141 S. Ct. at 1323. Accordingly, until our supreme court tells us otherwise, and in line with our

legislative mandate, we shall follow the procedures that have stemmed from our supreme court’s

interpretations of Miller prior to the issuance of Jones. In line with that precedent, we continue to

require sentencing courts to consider a juvenile offender’s youth and its attendant characteristics

and make a finding of permanent incorrigibility prior to imposing a life sentence.

¶ 63 With these principles in mind, we turn to the merits of this appeal.

¶ 64 In the present case, at the outset, the State argues that the defendant was not sentenced to a

de facto life sentence so as to trigger any Miller-based protections and require the trial court to

find him permanently incorrigible before sentencing him to life imprisonment. The State asserts

that because the defendant was sentenced under the law as it applied in 1996 when the “truth-in-

sentencing” statute had not yet been enacted, he is entitled to day-for-day good-time credit served.

See 730 ILCS 5/3-6-3(a)(2) (West 1994) (“[T]he prisoner shall receive one day of good conduct

credit for each day of service in prison other than where a sentence of ‘natural life’ has been

imposed. Each day of good conduct credit shall reduce by one day the inmate’s period of

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incarceration set by the court.”). Accordingly, the State argues that if the defendant “does not

misbehave” while incarcerated, he will only be required to serve half of his 50-year sentence.

Citing to the IDOC website, the State notes that, with good time served, the defendant’s “projected

parole date is February 4, 2036,” under which he “will have served 39 years, 11 months, and 29

days,” a sentence that is under 40 years, and therefore does not constitute de facto life under Buffer.

For the following reasons, we disagree.

¶ 65 Since the decision in Buffer, our appellate court has repeatedly held that the availability of

statutory good-time sentencing credit “is irrelevant to the determination of whether a [juvenile]

defendant has been sentenced to a de facto life sentence,” i.e., a sentence greater than 40 years’

imprisonment. Thornton, 2020 IL App (1st) 170677, ¶ 20; see also Peacock, 2019 IL App (1st)

170308, ¶ 19, appeal filed, No. 125340 (Ill. Oct. 4, 2019); People v. Figueroa, 2020 IL App (1st)

172390, ¶ 35; People v. Daniel, 2020 IL App (1st) 172267, ¶¶ 23-26; People v. Quezada, 2020 IL

App (1st) 170532, ¶ 13; People v. DiCorpo, 2020 IL App (1st) 172082, ¶ 53.

¶ 66 We first addressed this issue in Peacock, in the context of an 80-year sentence imposed on

a juvenile offender for murder. Peacock, 2019 IL App (1st) 170308, ¶¶ 1-3. In that case, just as

here, in light of the holding in Buffer, the State argued that because the defendant could be released

in 40 years or less with good time served, his sentence was not de facto life and the court was not

required to find the defendant permanently incorrigible before imposing the 80-year term. Id. ¶ 15.

We rejected the State’s argument, holding that the defendant’s sentence was indeed de facto life.

Id. ¶ 17. As we aptly explained:

“Defendant was not sentenced to 40 years’ imprisonment but was instead sentenced

to 80 years’ imprisonment with the mere possibility of release after 40 years. Moreover, to

serve a sentence of 40 years, he must receive every single day of good conduct credit for

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which he could be eligible. Defendant’s receipt of day-for-day credit is not guaranteed.

[Citations.] The IDOC ‘has the right to revoke good-conduct credits for disciplinary

infractions, [and] an inmate’s right to receive the credits is contingent upon his good

behavior while in prison.’ [Citations.] The IDOC ‘ultimately has discretion as to whether

defendant will be awarded any credit,’ and the trial court has no control over the manner

in which a defendant’s good conduct credit is earned or lost. [Citation.] Accordingly, we

conclude that defendant’s 80-year sentence, for which he may receive day-for-day credit,

constitutes a de facto life sentence.” Id. ¶ 19.

¶ 67 Subsequently, in Thornton, we revisited the issue in the context of a juvenile defendant’s

postconviction challenge to his 70-year murder sentence. Thornton, 2020 IL App (1st) 170677,

¶¶ 20-22. Here again, the State argued that because of good-time credit, the defendant was likely

to serve only 35 years and therefore his sentence should be treated as a 35-year term rather than

an unconstitutional 70-year de facto life sentence. Id. ¶ 18. The State also explicitly urged this

court to find that Peacock had been wrongly decided. Id. ¶ 21. Rejecting the State’s argument, we

reiterated that day-for-day credit is not guaranteed because it is IDOC rather than the trial court

that has the ultimate discretion as to whether any such credit will be awarded. Id. ¶ 22. We

therefore held that “the State’s assurances [of good time credit] are not enough for us to consider

the defendant’s sentence as anything other than a 70-year term.” Id.

¶ 68 Since Thornton, our appellate courts have repeatedly reaffirmed the holding of Peacock.

See Figueroa, 2020 IL App (1st) 172390, ¶ 35 (“we adhere to Peacock and Thornton”); Daniel,

2020 IL App (1st) 172267, ¶¶ 23-26 (applying Peacock and Thornton to find that a 70-year

sentence was de facto life, even though defendant was eligible for day-for-day good-conduct credit

that could “reduce his time served to 35 years”); Quezada, 2020 IL App (1st) 170532, ¶¶ 13, 16

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(“declin[ing] to depart from our holding in Peacock” and holding that a “judicially imposed

sentence cannot exceed the bounds of Buffer, irrespective of the availability of sentencing credit”);

DiCorpo, 2020 IL App (1st) 172082, ¶ 54 (listing all the decisions that have reaffirmed Peacock);

cf. People v. Gavin, 2021 IL App (1st) 182085, ¶ 54 (“[w]e agree wholeheartedly with the

reasoning in Peacock and do not depart from it here,” but nonetheless distinguish the defendant’s

situation from the one found in Peacock because all the good time credit has already been served

and the sentences have been discharged).

¶ 69 Their rationale has always been the same, namely that we may not consider day-for-day

credit in calculating what constitutes de facto life because day-for-day credit is a function of IDOC

and not the judiciary. Quezada, 2020 IL App (1st) 170532, ¶ 13. It is axiomatic that “the trial court

does not control the manner in which good-conduct credit is earned and lost by a prisoner.” People

v. Castano, 392 Ill. App. 3d 956, 960 (2009); see also Quezada, 2020 IL App (1st) 170532, ¶ 16.

The Unified Code of Corrections tasks the IDOC, not the trial court, with prescribing the rules and

regulations for awarding and revoking sentencing credit. 730 ILCS 5/3-6-3 (West 2018). “The

Director of the [IDOC] has the ‘sole discretion’ to determine whether an inmate receives

sentencing credit and in what amount.” Quezada, 2020 IL App (1st) 170532, ¶ 16 (quoting Lee v.

Godinez, 2014 IL App (3d) 130677, ¶ 9). Accordingly, were we to adopt the State’s position, we

would be leaving it up to IDOC to determine “whether defendant serves an unconstitutional

de facto life sentence.” Id. Instead, by holding that “the judicially imposed sentence cannot exceed

the bounds of Buffer, irrespective of the availability of sentencing credit,” we take the matter out

of IDOC’s hands and ensure that a juvenile offender “does not serve a sentence that is incompatible

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with our supreme court’s pronouncements in Buffer.” Id. 3

¶ 70 We agree with the rationale of these decisions and therefore hold that it was improper for

the trial court to consider day-for-day credit in determining whether the defendant’s 50-year

sentence constitutes de facto life. Under the clear holding in Buffer, the judicially imposed 50-year

discretionary term exceeds 40 years and is therefore a de facto life sentence.

¶ 71 The State nonetheless asserts that even if we find that the imposed 50-year sentence is

de facto life, the trial court was well within its discretion to impose such a sentence, where it found

that the defendant was permanently incorrigible. For the following reasons, we disagree.

¶ 72 As already noted above, in Illinois “a juvenile defendant may be sentenced to life or

de facto life imprisonment, but before doing so, the trial court must ‘determine[ ] that the

defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable

corruption beyond the possibility of rehabilitation.’ ” Peacock, 2019 IL App (1st) 170308, ¶ 22

(quoting Holman, 2017 IL 120655, ¶ 46); see also People v. Hill, 2020 IL App (1st) 171739, ¶ 46

(for a “de facto life sentence, the court must find permanent incorrigibility”).

¶ 73 In the present case, the record reveals that the trial court made no such finding. The State

correctly points out that at the sentencing hearing, the trial court stated that it understood that even

under Miller it was permitted to sentence the defendant to a discretionary life sentence and then

mused over whether the defendant was one such rare juvenile whose crimes warranted a life

sentence. Nonetheless, contrary to the State’s position, the record reveals that the court ultimately

3 We note that this exact issue is currently before our supreme court in People v. Dorsey, 2017 IL App (1st) 151124-U, appeal allowed, No. 123010 (Ill. Mar. 25, 2020). In that case, prior to our supreme court’s decision in Buffer, in an unpublished order, the appellate court held that good-time credit may be considered in calculating whether a sentence constitutes de facto life. Until our supreme court decides Dorsey, or rules otherwise, we continue to abide by the overwhelming precedent of our appellate courts.

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found the defendant was not deserving of life imprisonment or even de facto life. At both at the

resentencing hearing and the hearing on the defendant’s motion to reconsider, the trial court

repeatedly and unequivocally stated that it did not intend to sentence the defendant to either natural

or de facto life, and that it did not believe that the 50-year sentence it imposed constituted de facto

life. Instead, intending to fashion a term-of-years sentence (based on the availability of day-for-

day good-time credit, which would result in the defendant’s release at age 65), the trial court went

through each of the Miller factors and ultimately acknowledged that the defendant had “learned

some things since he was 15 and 16” and that he should “continue [his] rehabilitation and [his]

commitment to others.”

¶ 74 Although the State is correct that, when making a finding of incorrigibility, the sentencing

court need not recite “magic words” (see People v. Perez, 2020 IL App (1st) 153629-B, ¶ 56

(Pierce, J., concurring in part and dissenting in part)), almost every finding that the trial court made

here rejects the conclusion that the defendant is one of the rare juvenile offenders who deserves a

de facto life sentence.

¶ 75 As noted above, prior to making a finding of incorrigibility, the trial court was required to

and did consider the defendant’s youth and its attendant characteristics, including, but not limited

to the following factors: (1) the defendant’s chronological age at the time of the offense and any

evidence of his particular immaturity, impetuosity, and failure to appreciate risks and

consequences; (2) the defendant’s family and home environment; (3) the defendant’s degree of

participation in the homicide and any evidence of familial or peer pressures that may have affected

him; (4) the defendant’s incompetence, including his inability to deal with police officers or

prosecutors and his incapacity to assist his own attorneys; and (5) the defendant’s prospects for

rehabilitation. Holman, 2017 IL 120655, ¶ 46; see also 730 ILCS 5/5-4.5-105(a) (West 2018).

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¶ 76 Specifically, the trial court found that the defendant had been depressed, rebellious, and

subject to physical limitations as a child. The defendant’s father was an abusive alcoholic and not

present enough to be a role model. With respect to rehabilitation, the court noted that while it was

bothered by the fact that the defendant refused to openly renounce the Latin Kings, the defendant

did have a strong family support system, goals, and a place to live with a job waiting for him upon

release. Moreover, the court found relevant that the defendant had made no excuses and had

accepted responsibility for his actions and invited the defendant “who had learned some things”

since he was a teenager to “continue his rehabilitation and commitment to others.” Furthermore,

with respect to the defendant’s prior criminal history, the court found that aside from the two

murder cases that had landed him in prison for life, the defendant had no other criminal record. In

discussing other non-Miller mitigating factors, the court also stated that it believed that there was

a strong probability that “this would not recur” and that the defendant’s character and attitude

indicated that he was “unlikely to commit another crime.”

¶ 77 Under this record, and taking into account that “the trial court’s sentence of de facto life

*** is in [clear] conflict with its determination that a life sentence was not warranted,” we conclude

that the sentence is unconstitutional under the eighth amendment as applied to the defendant.

DiCorpo, 2020 IL App (1st) 172082, ¶ 54; see also People v. Murphy, 2019 IL App (4th) 170646,

¶ 48 (holding that the trial court’s “determination that [the] defendant, a juvenile, had the potential

to rehabilitate contravenes any conclusion that defendant was permanently incorrigible or

irretrievably depraved and is, therefore, unconstitutionally at odds with a de facto life sentence

without parole”). We therefore vacate the defendant’s sentence and remand the case for a new

sentencing hearing. See Peacock, 2019 IL App (1st) 170308, ¶ 25.

¶ 78 Because we find that defendant’s sentence constitutes a de facto life sentence under Buffer

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and cannot stand based on the considerations at his resentencing hearing, we need not address the

remainder of the defendant’s arguments on appeal.

¶ 79 On remand, however, we instruct the trial court to take into consideration that the new

sentence will necessarily be served consecutively with the 30-year sentence imposed in case No.

94-CR-24440. Any aggregate sentence, regardless of whether it is imposed for a single or separate

crime, which by operation of law exceeds de facto life as defined by Buffer, is unconstitutional

unless it is also made in tandem with a finding that the defendant is beyond rehabilitation. See

Reyes, 2016 IL 119271, ¶ 9 (“A mandatory term-of-years sentence that cannot be served in one

lifetime has the same practical effect on a juvenile defendant’s life as would an actual mandatory

sentence of life without parole—in either situation, the juvenile will die in prison. Miller makes

clear that a juvenile may not be sentenced to a mandatory, unsurvivable prison term without first

considering in mitigation his youth, immaturity, and potential for rehabilitation.”); see also Bear

Cloud v. State, 2014 WY 113, ¶ 33, 334 P.3d 132 (Wyo. 2014) (“[T]he teachings of the

Roper/Graham/Miller trilogy require sentencing courts to provide an individualized sentencing

hearing to weigh the factors for determining a juvenile’s ‘diminished culpability and greater

prospects for reform’ when, as here, the aggregate sentences result in the functional equivalent of

life without parole. To do otherwise would be to ignore the reality that lengthy aggregate sentences

have the effect of mandating that a juvenile ‘die in prison even if a judge or jury would have

thought that his youth and its attendant characteristics, along with the nature of his crime, made a

lesser sentence (for example, life with the possibility of parole) more appropriate.’ [Citation.] Such

a lengthy sentence ‘ “means denial of hope; it means that good behavior and character

improvement are immaterial; it means that whatever the future might hold in store for the mind

and spirit of [the juvenile convict], he will remain in prison for the rest of his days.” ’ [Citation.]

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That is exactly the result that Miller held was unconstitutional. [Citation.]” (Emphasis in

original.)).

¶ 80 III. CONCLUSION

¶ 81 For the aforementioned reasons, we vacate the defendant’s sentence and remand for a new

sentencing hearing with instructions.

¶ 82 Sentence vacated; cause remanded.

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No. 1-18-2401

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 96-CR-6048; the Hon. Charles P. Burns, Judge, presiding.

Attorneys James E. Chadd, Ellen J. Curry, and Levi S. Harris, of State for Appellate Defender’s Office, of Mt. Vernon, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Christine Cook, Assistant State’s Attorneys, of Appellee: counsel), for the People.

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