2023 IL App (1st) 211173-U
No. 1-21-1173
Order filed February 24, 2023
FIFTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 16517 ) KENNY SCOTT, ) Honorable ) Kenneth J. Wadas, Defendant-Appellant. ) Judge presiding.
JUSTICE MITCHELL delivered the judgment of the court. Justices Lyle and Navarro concurred in the judgment.
ORDER
¶1 Held: We affirm the summary dismissal of defendant’s postconviction petition where defendant failed to allege a violation of his constitutional rights at sentencing as a matter of law.
¶2 Defendant Kenny Scott appeals the trial court’s order summarily dismissing his
postconviction petition at the first stage of proceedings. The issue on appeal is whether Scott’s
claim that his 52-year sentence for attempted murder and armed robbery violates the proportionate
penalties clause of the Illinois Constitution has an arguable basis in law. For the reasons explained
below, we affirm. No. 1-21-1173
¶3 On the night of July 5, 2014, then 20-year-old Kenny Scott shot his girlfriend Shandel
Wilson. Wilson was getting ready to go out with her friend Jenail White at the two-flat apartment
where they both lived with White’s mother, Veronica Morris. Before they left, Wilson asked
Morris to accompany them downstairs because Scott was waiting outside the building. Scott was
jealous: he wanted Wilson to spend the evening with him instead.
¶4 When the women exited their top-floor apartment, Scott confronted Wilson, causing the
women to retreat inside. A short time later, Wilson and White attempted to leave again. Morris
saw Scott returning through the front gates and warned him that if he did not leave, she would call
the police. Scott did not heed her warning, and when Morris placed the call, Scott grabbed her
cellphone. Morris gave chase, but Scott evaded her and quickly ended the call. As Morris walked
back toward the apartment, Wilson and White began to yell because Scott was running toward the
women, now with a pistol in his right hand. Morris turned to face Scott and grabbed onto his waist
and arm as he ran through the walkway gate. Scott freed his arm and aimed the gun at Wilson and
White. He fired the gun from 15 feet away, striking Wilson twice, once in each leg, as she ran
through the front door. Scott fled the area before the police and paramedics arrived. Wilson
underwent two surgeries to remove the bullets and to repair her fractured tibia. Police officers
apprehended Scott one month later in Tennessee pursuant to a warrant issued in Illinois.
¶5 A jury subsequently convicted Scott of attempted first degree murder (720 ILCS 5/8-4, 9-
1(a)(1) (West 2014) and armed robbery (id. § 18-2(a)(2)). At sentencing, Scott’s counsel produced
an 18-page report prepared by Nicole Phinney, a social worker and staff mitigation specialist at
the Cook County Public Defender’s Office. The purpose of Phinney’s report was to provide
additional detail about Scott’s past and social history and to explain how they might have
-2- No. 1-21-1173
influenced his functioning and decision-making processes through his early adulthood. In
aggravation, the trial court also weighed Scott’s “long history of criminal history” and additional
charges filed against him during his time in custody. Declining to “write [Scott] off and warehouse
[him] forever,” the trial court sentenced Scott to the statutory minimum terms—6 years for both
attempted murder and armed robbery. Id. § 8-4(c)(1); 730 ILCS 5/5-4.5-25(a) (West 2014). A 25-
year firearm enhancement applied to his sentence for attempted murder (720 ILCS 5/8-4(c)(1)(D))
and a 15-year firearm enhancement applied to his sentence for armed robbery (id. § 18-2(b)).
Because the trial court found that Scott’s crime resulted in severe bodily injury, his sentences run
consecutively. 730 ILCS 5/5-8-4(d)(1) (West 2014). We affirmed his convictions and sentences
on direct appeal. People v. Scott, 2020 IL App (1st) 180200, ¶ 1.
¶6 Scott filed a postconviction petition in June 2021, in which he alleged that his sentence
violates the proportionate penalties clause of the Illinois Constitution because the trial court failed
to consider how the evolving science of juvenile maturity and neurological development applied
to him as a 20-year-old adult at the time of his crimes. Ill. Const. 1970, art. I, § 11; Miller v.
Alabama, 567 U.S. 460 (2012); People v. Harris, 2018 IL 121932, ¶ 46. The trial judge, who had
also presided over Scott’s trial, found that the record positively rebutted Scott’s claim and
summarily dismissed his petition at the first stage. The court reasoned, “[T]he record reflects that
the trial court specifically heard evidence and argument regarding this precise issue during
sentencing.” Scott then filed this timely appeal. Ill. S. Ct. R. 651 (eff. July 1, 2017).
¶7 Scott argues that his postconviction petition sets forth an arguable constitutional claim that
his sentence violates the proportionate penalties clause because the mandatory firearm
enhancements, which extend his sentence by 40 years, precluded the trial judge from fashioning a
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shorter sentence tailored to the unique attributes of his youth. The State argues that the record
reflects that the trial judge expressly weighed how Scott’s age at the time of his crimes bore on his
culpability, thus affirmatively rebutting his claim. At the first stage of proceedings, the circuit court
independently assesses whether a petitioner has set forth the gist of a constitutional claim with an
arguable basis in law and fact. See 725 ILCS 5/122-2.1(a)(2) (West 2020); People v. Hodges, 234
Ill. 2d 1, 11-12 (2009). We review the circuit court’s summary dismissal of a postconviction
petition de novo. Hodges, 234 Ill. 2d at 9.
¶8 Scott’s claim derives from the line of United States Supreme Court cases providing
heightened protections for juveniles in sentencing under the eighth amendment. U.S. Const.,
amend VIII; Miller v. Alabama, 567 U.S. 460, 471 (2012) (“[C]hildren are constitutionally
different from adults for purposes of sentencing.”); see also Graham v. Florida, 56 U.S. 48, 82
(2010); Roper v. Simmons, 543 U.S. 551, 574-75 (2005). A juvenile’s potential for impulsiveness
and impetuosity diminishes the penological justifications for imposing the most severe sentence.
Miller, 567 U.S. at 472. Thus, sentencing courts must weigh a juvenile’s youth and attendant
circumstances before imposing a natural life sentence or the functional equivalent. Miller, 567
U.S. at 489; People v. Holman, 2017 IL 120655, ¶ 40. Scott contends that the rationale of Miller
applies with equal force to young adults, and our supreme court has suggested that young adults
may raise Miller in postconviction challenges to life sentences under the proportionate penalties
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2023 IL App (1st) 211173-U
No. 1-21-1173
Order filed February 24, 2023
FIFTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 16517 ) KENNY SCOTT, ) Honorable ) Kenneth J. Wadas, Defendant-Appellant. ) Judge presiding.
JUSTICE MITCHELL delivered the judgment of the court. Justices Lyle and Navarro concurred in the judgment.
ORDER
¶1 Held: We affirm the summary dismissal of defendant’s postconviction petition where defendant failed to allege a violation of his constitutional rights at sentencing as a matter of law.
¶2 Defendant Kenny Scott appeals the trial court’s order summarily dismissing his
postconviction petition at the first stage of proceedings. The issue on appeal is whether Scott’s
claim that his 52-year sentence for attempted murder and armed robbery violates the proportionate
penalties clause of the Illinois Constitution has an arguable basis in law. For the reasons explained
below, we affirm. No. 1-21-1173
¶3 On the night of July 5, 2014, then 20-year-old Kenny Scott shot his girlfriend Shandel
Wilson. Wilson was getting ready to go out with her friend Jenail White at the two-flat apartment
where they both lived with White’s mother, Veronica Morris. Before they left, Wilson asked
Morris to accompany them downstairs because Scott was waiting outside the building. Scott was
jealous: he wanted Wilson to spend the evening with him instead.
¶4 When the women exited their top-floor apartment, Scott confronted Wilson, causing the
women to retreat inside. A short time later, Wilson and White attempted to leave again. Morris
saw Scott returning through the front gates and warned him that if he did not leave, she would call
the police. Scott did not heed her warning, and when Morris placed the call, Scott grabbed her
cellphone. Morris gave chase, but Scott evaded her and quickly ended the call. As Morris walked
back toward the apartment, Wilson and White began to yell because Scott was running toward the
women, now with a pistol in his right hand. Morris turned to face Scott and grabbed onto his waist
and arm as he ran through the walkway gate. Scott freed his arm and aimed the gun at Wilson and
White. He fired the gun from 15 feet away, striking Wilson twice, once in each leg, as she ran
through the front door. Scott fled the area before the police and paramedics arrived. Wilson
underwent two surgeries to remove the bullets and to repair her fractured tibia. Police officers
apprehended Scott one month later in Tennessee pursuant to a warrant issued in Illinois.
¶5 A jury subsequently convicted Scott of attempted first degree murder (720 ILCS 5/8-4, 9-
1(a)(1) (West 2014) and armed robbery (id. § 18-2(a)(2)). At sentencing, Scott’s counsel produced
an 18-page report prepared by Nicole Phinney, a social worker and staff mitigation specialist at
the Cook County Public Defender’s Office. The purpose of Phinney’s report was to provide
additional detail about Scott’s past and social history and to explain how they might have
-2- No. 1-21-1173
influenced his functioning and decision-making processes through his early adulthood. In
aggravation, the trial court also weighed Scott’s “long history of criminal history” and additional
charges filed against him during his time in custody. Declining to “write [Scott] off and warehouse
[him] forever,” the trial court sentenced Scott to the statutory minimum terms—6 years for both
attempted murder and armed robbery. Id. § 8-4(c)(1); 730 ILCS 5/5-4.5-25(a) (West 2014). A 25-
year firearm enhancement applied to his sentence for attempted murder (720 ILCS 5/8-4(c)(1)(D))
and a 15-year firearm enhancement applied to his sentence for armed robbery (id. § 18-2(b)).
Because the trial court found that Scott’s crime resulted in severe bodily injury, his sentences run
consecutively. 730 ILCS 5/5-8-4(d)(1) (West 2014). We affirmed his convictions and sentences
on direct appeal. People v. Scott, 2020 IL App (1st) 180200, ¶ 1.
¶6 Scott filed a postconviction petition in June 2021, in which he alleged that his sentence
violates the proportionate penalties clause of the Illinois Constitution because the trial court failed
to consider how the evolving science of juvenile maturity and neurological development applied
to him as a 20-year-old adult at the time of his crimes. Ill. Const. 1970, art. I, § 11; Miller v.
Alabama, 567 U.S. 460 (2012); People v. Harris, 2018 IL 121932, ¶ 46. The trial judge, who had
also presided over Scott’s trial, found that the record positively rebutted Scott’s claim and
summarily dismissed his petition at the first stage. The court reasoned, “[T]he record reflects that
the trial court specifically heard evidence and argument regarding this precise issue during
sentencing.” Scott then filed this timely appeal. Ill. S. Ct. R. 651 (eff. July 1, 2017).
¶7 Scott argues that his postconviction petition sets forth an arguable constitutional claim that
his sentence violates the proportionate penalties clause because the mandatory firearm
enhancements, which extend his sentence by 40 years, precluded the trial judge from fashioning a
-3- No. 1-21-1173
shorter sentence tailored to the unique attributes of his youth. The State argues that the record
reflects that the trial judge expressly weighed how Scott’s age at the time of his crimes bore on his
culpability, thus affirmatively rebutting his claim. At the first stage of proceedings, the circuit court
independently assesses whether a petitioner has set forth the gist of a constitutional claim with an
arguable basis in law and fact. See 725 ILCS 5/122-2.1(a)(2) (West 2020); People v. Hodges, 234
Ill. 2d 1, 11-12 (2009). We review the circuit court’s summary dismissal of a postconviction
petition de novo. Hodges, 234 Ill. 2d at 9.
¶8 Scott’s claim derives from the line of United States Supreme Court cases providing
heightened protections for juveniles in sentencing under the eighth amendment. U.S. Const.,
amend VIII; Miller v. Alabama, 567 U.S. 460, 471 (2012) (“[C]hildren are constitutionally
different from adults for purposes of sentencing.”); see also Graham v. Florida, 56 U.S. 48, 82
(2010); Roper v. Simmons, 543 U.S. 551, 574-75 (2005). A juvenile’s potential for impulsiveness
and impetuosity diminishes the penological justifications for imposing the most severe sentence.
Miller, 567 U.S. at 472. Thus, sentencing courts must weigh a juvenile’s youth and attendant
circumstances before imposing a natural life sentence or the functional equivalent. Miller, 567
U.S. at 489; People v. Holman, 2017 IL 120655, ¶ 40. Scott contends that the rationale of Miller
applies with equal force to young adults, and our supreme court has suggested that young adults
may raise Miller in postconviction challenges to life sentences under the proportionate penalties
clause of the Illinois Constitution. Harris, 2018 IL 121932, ¶ 48; see also Ill. Const. 1970, art. 1,
§ 11 (“All penalties shall be determined according to the seriousness of the offense and with the
objective of restoring the offender to useful citizenship.”).
-4- No. 1-21-1173
¶9 The procedural requirements of Miller do not apply, however, unless the trial court
imposed a natural life sentence or the functional equivalent, which is a term of more than 40 years.
People v. Buffer, 2019 IL 122327, ¶¶ 27, 41. Scott is not serving a life sentence, natural or de facto,
as he acknowledges in his briefs. 1 Rather, Scott will have an opportunity for release before having
served 40 years because of his eligibility for sentencing credit. See 730 ILCS 5/3-6-3(a)(2)(ii)-(iii)
(West 2014). A juvenile sentenced to the same term as Scott would not have a viable claim under
the proportionate penalties clause regardless of whether the sentencing court weighed his youth
and circumstances. See, e.g., Dorsey, 2021 IL 123010, ¶¶ 64, 74; People v. Woods, 2020 IL App
(1st) 163031, ¶ 58 (juvenile failed to demonstrate prejudice to file a successive petition where a
25-year firearm enhancement did not result in a life sentence); see also People v. Hilliard, 2021
IL App (1st) 200112, ¶ 21 (“Clear from this trilogy of cases is that the Court was concerned with
the most severe forms of punishment allowed under the Constitution, the death penalty and life
without parole.”). Thus, Scott plainly could not demonstrate that the sentencing scheme, as applied
to him, violated the proportionate penalties clause in a claim premised on Miller.
¶ 10 Moreover, the record reflects that the trial judge did hear evidence about Scott’s age and
neurological development. Citing medical literature suggesting that adolescents who experience
prolonged trauma, in some instances, have delayed brain maturation, Phinney opined in her report
that “Scott’s brain is in theory younger developmentally than his actual age.” His counsel argued
that “he still [is] in this cusp of age when *** his brain is still developing. The trial judge noted
that young men’s brains “are not finished developing [until] as late as 27 years old” before
1 Although Scott alleged in his petition that he received a de facto life sentence in excess of 40 years, he abandons this claim on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).
-5- No. 1-21-1173
imposing the shortest possible sentence permitted under Illinois law. Scott did not challenge how
the trial judge weighed his youth and circumstances or the application of the statutory
enhancements on direct appeal. The Post-Conviction Hearing Act is limited to constitutional
deprivations that were not and could not have been litigated at trial (People v. House, 2021 IL
125124, ¶ 15 (quoting People v. Barrow, 195 Ill. 2d 506, 519 (2001))), and Illinois law has long
recognized that adolescents are different for the purpose of sentencing (e.g., People ex rel. Bradley
v. Illinois State Reformatory, 148 Ill. 413, 423 (1894)). Setting aside Scott’s arguable forfeiture of
his claim by failing to raise it on direct appeal, the trial judge’s express consideration of how
Scott’s youth bore on his culpability in light of the evolving neuroscience positively rebuts Scott’s
allegations to the contrary.
¶ 11 Seeking to extend the procedural requirements of Miller to his sentencing despite not
having received a life sentence, Scott nonetheless maintains that the firearm enhancements
precluded the trial judge from fashioning a shorter sentence. For support, Scott relies on People v.
Womack, 2020 IL App (3d) 170308, People v. Barnes, 2018 IL App (5th) 140378, and People v.
Aikens, 2016 IL App (1st) 133578. But these authorities predate Dorsey, which effectively
foreclosed any claim based on Miller and alleging a violation of the proportionate penalties clause
where a defendant did not receive a life sentence. Dorsey, 2021 IL 123010, ¶¶ 64, 74. Following
Dorsey, we have also rejected Scott’s precise argument in People v. Hilliard, 2021 IL App (1st)
200112, ¶ 31 (“To accept defendant’s suggested ‘novel’ application of Miller would require us to
extract the substantive rule of Miller from its holding and apply only the supporting procedural
requirement.”). Granting substantial deference to the General Assembly’s broad authority to
prescribe penalties according to the severity of crimes, as we must (Buffer, 2019 IL 122327, ¶ 35),
-6- No. 1-21-1173
we find no basis alleged in the petition to suggest that the firearm enhancements, as applied to
Scott, are so cruel, degrading, or wholly disproportionate as to shock the conscience (People v.
Klepper, 234 Ill. 2d 337, 348-49 (2009)).
¶ 12 ****
¶ 13 Because Scott is not serving a life sentence, his postconviction claim based upon Miller
necessarily fails. Moreover, the record positively rebuts Scott’s allegation that the trial judge failed
to consider the characteristics of Scott’s youth. For these reasons, Scott’s postconviction petition
has no arguable basis in law or fact, and we affirm the trial court’s summary dismissal of his
petition.
¶ 14 Affirmed.
-7-