2021 IL App (2d) 190649 No. 2-19-0649 Opinion filed May 3, 2021 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 91-CF-1904 ) ELOY SIMENTAL, ) Honorable ) Salvatore LoPiccolo Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice Hudson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Eloy Simental, appeals from the judgment of the circuit court of Kane County
denying his motion for leave to file a successive postconviction petition alleging that his 60-year
prison sentence, imposed for an offense committed when he was a juvenile, was an
unconstitutional de facto life sentence because the trial court sentenced defendant without first
considering his youth and its attendant characteristics. The court denied defendant’s motion for
leave to file the petition, finding that defendant failed to establish the requisite prejudice, because
the 60-year sentence was not a de facto life sentence since defendant was eligible for day-for-day
good-time credit. For the reasons that follow, we reverse and remand for a new sentencing hearing.
¶2 I. BACKGROUND 2021 IL App (2d) 190649
¶3 Following a jury trial, defendant was convicted under an accountability theory of first-
degree murder (Ill. Rev. Stat. 1991, ch. 38, ¶ 9-1(a)(1)) in the 1991 shooting death of Cesar
Montalvo, a high-ranking member of the Latin Kings street gang. On the date of the offense,
defendant was 16 years old. On October 16, 1992, the trial court sentenced defendant to 60 years
in prison. In imposing sentence, the court made a few references to defendant’s age, noting that it
must take defendant’s age into account. It stated that defendant did not have a bad record “for a
fellow your age” but that it would hold prior offenses involving weapons against “somebody your
age.” In sentencing defendant to 60 years, the court stated, “as a result of your age, I’m not gonna
extend this, but I am giving you as much as I can on the normal term.” The law in effect at the
time of defendant’s offense allowed for day-for-day credit against every sentence except a natural
life sentence. See 730 ILCS 5/3-6-3(a)(2) (West 1992).
¶4 On direct appeal, defendant raised four issues, including whether his sentence was
excessive. He argued that the trial court did not give adequate weight to his lack of a prior criminal
record or his rehabilitative potential. We affirmed. See People v. Simental, No. 2-92-1349 (1994)
(unpublished order under Illinois Supreme Court Rule 23).
¶5 Thereafter, in 1995, defendant filed a postconviction petition raising 12 claims of error,
none of which related to his sentence. The trial court denied the petition following an evidentiary
hearing, and we affirmed. People v. Simental, No. 2-97-0510 (1999) (unpublished order under
Illinois Supreme Court Rule 23).
¶6 Defendant filed another postconviction petition in 1999. The trial court denied the petition,
finding that it lacked jurisdiction due to the pendency of defendant’s appeal from the denial of his
first petition. Defendant filed a notice of appeal from the denial of the 1999 petition, but he then
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withdrew it. Defendant next filed, in 2004, a motion for leave to file a successive postconviction
petition, which was denied. No appeal was taken.
¶7 On May 20, 2019, defendant filed a motion for leave to file a successive postconviction
petition. In that motion, defendant alleged that his sentence violated the eighth amendment to the
United States Constitution (U.S. Const., amend. VIII). He alleged that he had cause for failing to
raise the issue in his initial petition, because it was not until People v. Buffer, 2019 IL 122327, that
our supreme court held that a sentence greater than 40 years was a de facto life sentence, such that
it could not be imposed upon a juvenile without first considering the offender’s youth and its
attendant characteristics. Defendant alleged that he was prejudiced in that he was 16 at the time of
the offense, his 60-year sentence was a de facto life sentence, and the trial court imposed the
sentence without first considering defendant’s youth and its attendant characteristics. Defendant
included with his motion his proposed successive petition, arguing that his sentence was
unconstitutional. He asked that his sentence be vacated, that counsel be appointed to represent him,
and that he be resentenced to a term of 40 years or less.
¶8 On June 28, 2019, in a written order, the trial court denied defendant’s motion for leave to
file his successive petition. Although the court agreed that defendant established cause for failing
to raise his constitutional claim in his initial petition, the court found that defendant failed to
establish prejudice. According to the court, because defendant was eligible for day-for-day credit
at the time of sentencing, his 60-year sentence was, in effect, a 30-year sentence, which was below
the 40-year limit established by our supreme court in Buffer. Thus, the court concluded that,
because defendant was not serving a de facto life sentence, he cannot establish an eighth
amendment violation.
¶9 This timely appeal followed.
-3- 2021 IL App (2d) 190649
¶ 10 II. ANALYSIS
¶ 11 Defendant contends that he alleged sufficient cause and prejudice to file his successive
petition. There is no dispute that defendant established the requisite cause. The issue here is
whether defendant established the requisite prejudice. Defendant argues that he established
prejudice because his 60-year sentence, which was imposed for an offense committed when he
was 16 years old, was a de facto life sentence that was imposed without proper consideration of
his youth and its attendant characteristics, in violation of both the United States and Illinois
Constitutions. Defendant argues that the trial court erred in concluding that, because defendant
was eligible for day-for-day credit, his sentence was not a de facto life sentence. The State responds
that defendant cannot establish prejudice, because, taking into consideration applicable day-for-
day sentencing credit, defendant was eligible for release in less than 40 years and thus did not
receive a de facto life sentence. The State further argues that defendant’s sentence was not a
de facto life sentence, because he has since been released from prison after serving less than 30
years. 1
1 According to the Department of Corrections (DOC) website, defendant is currently on
parole, effective November 13, 2020, with a projected discharge date of November 13, 2023. See
Internet Inmate Status, Ill. Dep’t of Corr., https://www.idoc.state.il.us/subsections/search/inms
_print.asp?idoc=B37741 (last visited Apr. 19, 2021) [https://perma.cc/UN2G-DB9B]. We may
take judicial notice of the contents of the DOC website. See People v. Young, 355 Ill. App. 3d 317,
321 n.1 (2005).
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2021 IL App (2d) 190649 No. 2-19-0649 Opinion filed May 3, 2021 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 91-CF-1904 ) ELOY SIMENTAL, ) Honorable ) Salvatore LoPiccolo Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice Hudson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Eloy Simental, appeals from the judgment of the circuit court of Kane County
denying his motion for leave to file a successive postconviction petition alleging that his 60-year
prison sentence, imposed for an offense committed when he was a juvenile, was an
unconstitutional de facto life sentence because the trial court sentenced defendant without first
considering his youth and its attendant characteristics. The court denied defendant’s motion for
leave to file the petition, finding that defendant failed to establish the requisite prejudice, because
the 60-year sentence was not a de facto life sentence since defendant was eligible for day-for-day
good-time credit. For the reasons that follow, we reverse and remand for a new sentencing hearing.
¶2 I. BACKGROUND 2021 IL App (2d) 190649
¶3 Following a jury trial, defendant was convicted under an accountability theory of first-
degree murder (Ill. Rev. Stat. 1991, ch. 38, ¶ 9-1(a)(1)) in the 1991 shooting death of Cesar
Montalvo, a high-ranking member of the Latin Kings street gang. On the date of the offense,
defendant was 16 years old. On October 16, 1992, the trial court sentenced defendant to 60 years
in prison. In imposing sentence, the court made a few references to defendant’s age, noting that it
must take defendant’s age into account. It stated that defendant did not have a bad record “for a
fellow your age” but that it would hold prior offenses involving weapons against “somebody your
age.” In sentencing defendant to 60 years, the court stated, “as a result of your age, I’m not gonna
extend this, but I am giving you as much as I can on the normal term.” The law in effect at the
time of defendant’s offense allowed for day-for-day credit against every sentence except a natural
life sentence. See 730 ILCS 5/3-6-3(a)(2) (West 1992).
¶4 On direct appeal, defendant raised four issues, including whether his sentence was
excessive. He argued that the trial court did not give adequate weight to his lack of a prior criminal
record or his rehabilitative potential. We affirmed. See People v. Simental, No. 2-92-1349 (1994)
(unpublished order under Illinois Supreme Court Rule 23).
¶5 Thereafter, in 1995, defendant filed a postconviction petition raising 12 claims of error,
none of which related to his sentence. The trial court denied the petition following an evidentiary
hearing, and we affirmed. People v. Simental, No. 2-97-0510 (1999) (unpublished order under
Illinois Supreme Court Rule 23).
¶6 Defendant filed another postconviction petition in 1999. The trial court denied the petition,
finding that it lacked jurisdiction due to the pendency of defendant’s appeal from the denial of his
first petition. Defendant filed a notice of appeal from the denial of the 1999 petition, but he then
-2- 2021 IL App (2d) 190649
withdrew it. Defendant next filed, in 2004, a motion for leave to file a successive postconviction
petition, which was denied. No appeal was taken.
¶7 On May 20, 2019, defendant filed a motion for leave to file a successive postconviction
petition. In that motion, defendant alleged that his sentence violated the eighth amendment to the
United States Constitution (U.S. Const., amend. VIII). He alleged that he had cause for failing to
raise the issue in his initial petition, because it was not until People v. Buffer, 2019 IL 122327, that
our supreme court held that a sentence greater than 40 years was a de facto life sentence, such that
it could not be imposed upon a juvenile without first considering the offender’s youth and its
attendant characteristics. Defendant alleged that he was prejudiced in that he was 16 at the time of
the offense, his 60-year sentence was a de facto life sentence, and the trial court imposed the
sentence without first considering defendant’s youth and its attendant characteristics. Defendant
included with his motion his proposed successive petition, arguing that his sentence was
unconstitutional. He asked that his sentence be vacated, that counsel be appointed to represent him,
and that he be resentenced to a term of 40 years or less.
¶8 On June 28, 2019, in a written order, the trial court denied defendant’s motion for leave to
file his successive petition. Although the court agreed that defendant established cause for failing
to raise his constitutional claim in his initial petition, the court found that defendant failed to
establish prejudice. According to the court, because defendant was eligible for day-for-day credit
at the time of sentencing, his 60-year sentence was, in effect, a 30-year sentence, which was below
the 40-year limit established by our supreme court in Buffer. Thus, the court concluded that,
because defendant was not serving a de facto life sentence, he cannot establish an eighth
amendment violation.
¶9 This timely appeal followed.
-3- 2021 IL App (2d) 190649
¶ 10 II. ANALYSIS
¶ 11 Defendant contends that he alleged sufficient cause and prejudice to file his successive
petition. There is no dispute that defendant established the requisite cause. The issue here is
whether defendant established the requisite prejudice. Defendant argues that he established
prejudice because his 60-year sentence, which was imposed for an offense committed when he
was 16 years old, was a de facto life sentence that was imposed without proper consideration of
his youth and its attendant characteristics, in violation of both the United States and Illinois
Constitutions. Defendant argues that the trial court erred in concluding that, because defendant
was eligible for day-for-day credit, his sentence was not a de facto life sentence. The State responds
that defendant cannot establish prejudice, because, taking into consideration applicable day-for-
day sentencing credit, defendant was eligible for release in less than 40 years and thus did not
receive a de facto life sentence. The State further argues that defendant’s sentence was not a
de facto life sentence, because he has since been released from prison after serving less than 30
years. 1
1 According to the Department of Corrections (DOC) website, defendant is currently on
parole, effective November 13, 2020, with a projected discharge date of November 13, 2023. See
Internet Inmate Status, Ill. Dep’t of Corr., https://www.idoc.state.il.us/subsections/search/inms
_print.asp?idoc=B37741 (last visited Apr. 19, 2021) [https://perma.cc/UN2G-DB9B]. We may
take judicial notice of the contents of the DOC website. See People v. Young, 355 Ill. App. 3d 317,
321 n.1 (2005).
-4- 2021 IL App (2d) 190649
¶ 12 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(a)(1) (West 2018)) offers a
procedural device by which a criminal defendant may assert that his conviction was based on a
substantial denial of his rights under the federal or state constitutions or both. Proceedings on a
postconviction petition are collateral to proceedings in a direct appeal and focus on constitutional
claims that have not and could not have been previously adjudicated. Buffer, 2019 IL 122327, ¶ 12.
The Act contemplates the filing of a single petition. 725 ILCS 5/122-3 (West 2018). However,
section 122-1(f) of the Act provides an exception to this rule, permitting a successive petition if
the defendant first obtains permission from the court after demonstrating both cause for failing to
bring the claim in his initial postconviction proceeding and resulting prejudice. Id. § 122-1(f). To
establish cause, a defendant must show some objective factor external to the defense that impeded
his ability to raise the claim in the initial postconviction proceeding. Id. § 122-1(f)(1); People v.
Holman, 2017 IL 120655, ¶ 26. To establish prejudice, a defendant must show that the claimed
constitutional error so infected the proceeding that the result violated due process. 725 ILCS 5/122-
1(f)(2) (West 2018); Holman, 2017 IL 120655, ¶ 26. The court should deny the motion for leave
to file a successive petition only when it is clear from a review of the proposed petition and
supporting documents that the defendant’s claim fails as a matter of law or where those
submissions are insufficient to justify further proceedings. People v. Bailey, 2017 IL 121450, ¶ 21.
We review de novo the denial of leave to file a successive petition. Id. ¶ 13.
¶ 13 The eighth amendment to the United States Constitution prohibits, inter alia, “cruel and
unusual punishments” (U.S. Const., amend. VIII) and applies to the states through the fourteenth
amendment (U.S. Const., amend. XIV). Buffer, 2019 IL 122327, ¶ 15. In Miller v. Alabama, 567
U.S. 460, 479 (2012), the United States Supreme Court held that the eighth amendment “forbids a
sentencing scheme that mandates life in prison without possibility of parole for juvenile
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offenders.” The Court made clear that its holding was not a categorical ban on life-without-parole
sentences for juveniles. Id. Rather, it required that, in imposing such a sentence, the trial court
must “take into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” Id. at 480.
¶ 14 The Supreme Court subsequently held that Miller applied retroactively to cases on
collateral review. Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 736 (2016); see
also People v. Davis, 2014 IL 115595. The Illinois Supreme Court has since held that Miller
applies to discretionary sentences of life without parole (Holman, 2017 IL 120655, ¶ 40) and to
de facto life sentences, i.e., “[a] mandatory term-of-years sentence that cannot be served in one
lifetime” (People v. Reyes, 2016 IL 119271, ¶ 9).
¶ 15 Recently, in Buffer, 2019 IL 122327, our supreme court considered whether the defendant’s
50-year prison sentence, imposed for a crime he committed when he was 16 years old, violated the
eighth amendment. After reviewing Miller and its progeny, the court stated that, to prevail on his
claim, the defendant “must show that (1) the defendant was subject to a life sentence, mandatory
or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its
attendant characteristics in imposing the sentence.” Id. ¶ 27. On the issue of whether the defendant
showed that he was subject to a de facto life sentence, the court concluded that “a prison sentence
of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in
violation of the eight amendment.” Id. ¶ 41. It specifically noted that such a sentence “provides
‘ “some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” ’ ” Id. (quoting Miller, 567 U.S. at 479, quoting Graham v. Florida, 560 U.S. 48,
75 (2010)). Thus, the supreme court concluded that, because the defendant was sentenced to 50
-6- 2021 IL App (2d) 190649
years’ imprisonment without the trial court first considering the defendant’s youth and its attendant
characteristics, the sentence violated the eighth amendment. Id. ¶ 42.
¶ 16 Under Buffer, defendant’s 60-year sentence, imposed for an offense committed when he
was 16 years old, is a de facto life sentence. Contrary to the State’s argument, the fact that
defendant was eligible for day-for-day credit does not remove his sentence from a Buffer analysis.
In several recent cases, the First District has held that statutory sentencing credit is irrelevant to
determining whether a prison sentence constitutes a de facto life sentence. See People v. Hill, 2020
IL App (1st) 171739; People v. Daniel, 2020 IL App (1st) 172267; People v. Thornton, 2020 IL
App (1st) 170677; People v. Peacock, 2019 IL App (1st) 170308.
¶ 17 In Peacock, the juvenile defendant was sentenced to 80 years’ imprisonment and, because
the offense occurred in 1995, was eligible for day-for-day credit. Peacock, 2019 IL App (1st)
170308, ¶ 3. The court held that the defendant’s 80-year sentence was a de facto life sentence,
even though the defendant was eligible for day-for-day credit and thus might be eligible for release
after 40 years. Id. ¶¶ 17-18. The court explained its conclusion as follows:
“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
which he could be eligible. Defendant’s receipt of day-for-day credit is not guaranteed.
[Citations.] The [DOC] ‘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 [DOC] ‘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
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conclude that defendant’s 80-year sentence, for which he may receive day-for-day credit,
constitutes a de facto life sentence.” Id. ¶ 19.
¶ 18 Relying on Peacock, the First District in both Thornton and Daniel held that the
defendants’ 70-year sentences were de facto life sentences despite the defendants’ eligibility for
day-for-day good-time credit, which would likely reduce their sentences to 35 years. Thornton,
2020 IL App (1st) 170677, ¶¶ 18-22; Daniel, 2020 IL App (1st) 172267, ¶ 26. In each case, the
court emphasized that day-for-day credit was not guaranteed and that it was the DOC, not the trial
court, that had the ultimate discretion as to whether the defendant will receive credit. Thornton,
2020 IL App (1st) 170677, ¶ 22; Daniel, 2020 IL App (1st) 172267, ¶ 24.
¶ 19 Most recently, in Hill, the First District reaffirmed its holdings in Peacock, Thornton, and
Daniel, concurring with the reasoning expressed in Peacock that day-for-day credit is not
guaranteed. Hill, 2020 IL App (1st) 171739, ¶¶ 34, 37. The Hill court added to Peacock’s
reasoning, noting that “[t]he language in Buffer focuses on the sentence ‘imposed’ not the sentence
served.” Id. ¶ 37. In addition, the Hill court reviewed in detail the DOC’s regulations governing
the revocation of sentencing credit, which, it noted, were promulgated at the express instruction of
the General Assembly. Id. ¶¶ 38-40. The Hill court stated that its review confirmed Peacock’s
rationale that the trial court has no control over a defendant’s good-time credit, noting that
“[s]tatutory day-for-day credit provides nothing more than a baseline, and the baseline can be
altered by the General Assembly’s express grant of discretionary authority to the [DOC].” Id. ¶ 41.
¶ 20 The State argues that we should decline to follow Peacock and Thornton (neither party
cites Daniel or Hill), because those cases “neglect the core premise of Miller and its progeny,” i.e.,
“the concern that a life sentence without parole for a juvenile offender provides the juvenile with
no opportunity for release.” The State asks us to hold that a sentence under which a defendant has
-8- 2021 IL App (2d) 190649
a meaningful opportunity for release in 40 years or less is not a de facto life sentence. The State
made the same argument in Thornton, asserting that, because the defendant had a meaningful
opportunity for release after serving only 35 years, his 70-year sentence did not fall within the
scope of Miller, which focused on life sentences without the possibility of parole. See Thornton,
2020 IL App (1st) 170677, ¶ 21. The Thornton court rejected the State’s argument, refusing to
consider the defendant’s sentence as anything other than a 70-year term and noting, as it did in
Peacock, that day-for-day credit is not guaranteed and is left to the discretion of the DOC. Id. ¶ 22.
We agree with the reasoning of Thornton and Peacock, as well as the more recent cases of Daniel
and Hill.
¶ 21 Also, the fact that defendant is currently on parole does not warrant a different conclusion.
To be sure, here, as the State notes, unlike in Thornton and Peacock, any uncertainty as to whether
defendant will be awarded the day-to-day credit has been removed, as defendant has been released
from prison on parole and presumably has received all day-for-day credit available to him.
However, defendant’s sentence has not yet been discharged. As defendant points out, “ ‘[a] person
on parole remains subject to the sentence of commitment to the [DOC] for the period of time
specified by the court.’ ” People v. McChriston, 2014 IL 115310, ¶ 14 (quoting People v. Williams,
66 Ill. 2d 179, 187 (1977)). Thus, until discharged, defendant remains subject to the remainder of
the 60-year sentence imposed by the trial court, a sentence well over the 40-year benchmark set in
Buffer.
¶ 22 Because defendant was sentenced to a de facto life sentence, the trial court, in imposing
sentence, was required to first consider defendant’s youth and its attendant characteristics. See
Holman, 2017 IL 120655, ¶ 46 (articulating the factors that the court must consider when imposing
a de facto life sentence on a juvenile defendant); Thornton, 2020 IL App (1st) 170677, ¶ 24;
-9- 2021 IL App (2d) 190649
Peacock, 2019 IL App (1st) 170308, ¶ 22. The record makes clear that the trial court failed to do
so, noting defendant’s age only in passing a few times. See Peacock, 2019 IL App (1st) 170308,
¶ 24 (“the court’s mere awareness of a defendant’s age *** does not provide evidence that the
circuit court specifically considered defendant’s youth and its attendant characteristics”).
Accordingly, we hold that defendant’s sentence violates the eighth amendment.
¶ 23 Based on the foregoing, we agree with defendant that the proper remedy is to remand this
matter for a new sentencing hearing rather than for further postconviction proceedings. See Buffer,
2019 IL 122327, ¶ 47; Daniel, 2020 IL App (1st) 172267, ¶¶ 30-31; Thornton, 2020 IL App (1st)
170677, ¶ 26; Peacock, 2019 IL App (1st) 170308, ¶ 25.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we reverse the judgment of the circuit court of Kane County and
remand for further proceedings consistent with this order.
¶ 26 Reversed and remanded.
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No. 2-19-0649
Decision Under Review: Appeal from the Circuit Court of Kane County, No. 91-CF- 1904; the Hon. Salvatore LoPiccolo Jr., Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Erin S. Johnson, of State for Appellate Defender’s Office, of Elgin, for appellant. Appellant:
Attorneys Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick for Delfino, Edward R. Psenicka, and Steven A. Rodgers, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
- 11 -