People v. Streeter

2022 IL App (1st) 191825-U

• Court: Appellate Court of Illinois
• Decided: June 30, 2022
• Docket: 1-19-1825
• Status: Unpublished

Opinion

2022 IL App (1st) 191825-U

FOURTH DIVISION June 30, 2022

No. 1-19-1825

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 ______________________________________________________________________________

) Appeal from the THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) ) No. 11 CR 18454 (03) JAMAL STREETER, ) ) Defendant-Appellant. ) ) Honorable ) Vincent M. Gaughan, ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE REYES delivered the judgment of the court. Justices Rochford and Martin concurred in the judgment.

ORDER

¶1 Held: Affirming the summary dismissal of defendant’s postconviction petition where it failed to sufficiently allege that (1) defendant received ineffective assistance of trial counsel, (2) defendant received ineffective assistance of appellate counsel, (3) defendant’s sentence violated the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution, and (4) defendant’s sentence was disproportionate to his co-defendant’s sentence.

¶2 Defendant appeals the summary dismissal of his postconviction petition for relief

pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). 1-19-1825

Defendant argues that the trial court erred in summarily dismissing his petition, asserting it

sufficiently alleged that (1) defendant received ineffective assistance of trial counsel, (2)

defendant received ineffective assistance of appellate counsel, (3) defendant’s sentence violated

the eighth amendment of the United States Constitution and the proportionate penalties clause of

the Illinois Constitution, and (4) defendant’s sentence was disproportionate to his co-defendant

Vito Richmond’s sentence. For the following reasons, we affirm.

¶3 BACKGROUND

¶4 On August 3, 2011, Darius Brown (Brown) was shot and killed in Metcalfe Park located

on South State Street in Chicago. During the shooting, the same shooter shot at Steve Barron

(Barron), but he was not struck by any bullets. Defendant, who was 18 years old at the time of

the shooting, and co-defendants Aramis Beachem (Beachem) and Vito Richmond (Richmond)

were charged by indictment with first degree murder of Brown (720 ILCS 5/9-1(a)(1), 9-1(a)(2),

9-1(a)(3) (West 2010)), attempted first degree murder of Barron (720 ILCS 5/8-4(a) (West

2010)), and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2010)). 1 At trial,

the jury found defendant guilty of the first degree murder of Brown and not guilty of the

attempted murder of Barron. The jury further found that the State had failed to prove that

defendant had used a firearm in the commission of the offenses.

¶5 A. Pretrial Proceedings

¶6 Prior to trial, defendant filed a motion to suppress his statements to the police following

his arrest. In his motion, defendant asserted his statements should be excluded because (1)

defendant’s statements to the police were taken after he had expressed his desire to stop

communicating to the police, in violation the United States Constitution and Illinois Constitution,

1 Defendant is the only party to this appeal. -2- 1-19-1825

and (2) the police denied defendant’s repeated requests to call his family, in violation of section

103-3 of the Code of Criminal Procedure (Code) (725 ILCS 5/103-3 (West 2010)).

¶7 At the suppression hearing, defendant testified that on October 12, 2011, he was arrested

and placed in custody at a police station. Defendant acknowledged that he was advised of his

Miranda rights, understood his Miranda rights, and agreed to communicate with the police.

Defendant also testified that when he had repeated his account of the offense three or four times,

he said he was “done talking.” The police, however, continued to question him. Thereafter,

defendant stated on several occasions, “I’ve already told my story,” “I’m done,” and “I don’t

wish to talk more, I have nothing else to say.” Defendant testified that the police continued the

questioning on each of these occasions. Defendant further testified that at one point during an

interview, a detective asked, “Do you have anything more to say?” Defendant testified that he

did not say anything and that he shook his head from side to side. Defendant further testified that

he asked eight different police officers whether he could call his sister, Passion Jordan (Jordan),

but he was not allowed to do so until he arrived at the Cook County Jail.

¶8 Chicago police detective Daniel Stanek (Detective Stanek) testified that, on the day prior

to the offenses in question, an individual matching defendant’s description fired a firearm on

South Michigan Avenue. This individual was with Jordan at the time of the shooting. Detective

Stanek further testified that he interviewed defendant at the police station. During the interview,

defendant asked to call his sister Jordan on several occasions. Detective Stanek also testified that

at one point during the interview, he and his partner asked defendant why he wanted to call his

sister. Defendant answered he wanted her to know where he was. Detective Stanek testified that

he had, in fact, contacted Jordan and communicated with her over the phone on numerous

occasions. After Detective Stanek informed defendant that his sister was aware of where he was,

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defendant stopped asking to call her. Detective Stanek testified that defendant never asked for an

attorney.

¶9 Following Detective Stanek’s testimony, the parties rested. The circuit court then

reviewed portions of an electronically recorded interview (ERI) that had been admitted into

evidence. After hearing oral arguments and reviewing portions of the ERI video recording, the

circuit court denied defendant’s motion to suppress his statements.

¶ 10 B. Trial Proceedings

¶ 11 The matter proceeded to a three-day jury trial. At trial, Barron testified that in 2011, he

was affiliated with the Welch World street gang. A few weeks prior to the shooting on August 3,

2011, Richmond and defendant approached Barron and asked if he was affiliated with Welch

World. The two men indicated they would “jump” Barron as the two men had “just took a loss.”

Barron understood this to mean that defendant’s sister Princess Streeter (Princess) had died. She

was a member of the 37th Avenue Boys street gang and had been shot as part of a gang dispute

between Welch World and the 37th Avenue Boys. Barron ran away.

¶ 12 Barron further testified that on the evening of the shooting, he was at Metcalfe Park on

South State Street playing basketball with Brown. Barron had a red Washington Nationals cap

and a tattoo of a “W” on the back of his right hand, which indicated he was a member of Welch

World. During the game, Barron heard four or five shots behind him and started running.

Brown, who was running next to him, “said he got hit.” Barron then observed an automobile

which he identified as a gray Charger driving southbound on State Street. He could not identify

anyone inside the vehicle. The following day, Barron informed the police he had heard shots and

ran during the incident.

¶ 13 Chicago police sergeant Jose Lopez testified as a gang expert. In August 2011, the 37th

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Avenue Boys and Welch World engaged in a series of shootings and retaliation shootings.

Defendant’s sister Princess was killed as a result of this conflict.

¶ 14 On the third day of the trial, a deputy sheriff informed the trial court that several jurors

expressed concerns that when they arrived and departed from the courthouse, people were

pointing at them, staring at them, and “watching other jurors come in.” Thereafter, the trial court

brought into chambers all the jurors who expressed concerns. One juror, M.L., stated that “I feel

like I’m going to cry right now” and that “[i]t makes me very nervous that whatever we decide,

one side obviously is going to be really unhappy ***.” Another juror, J.B., stated that when the

jurors left on the second day of trial, people were waiting for the jurors to walk by. J.B. further

explained that a young lady made a face at the jurors and that another person stated that “I think

that’s one [of] them right there.” J.B. asserted that these people were from Brown’s family. The

trial court stated that the jurors were safe, assuring them that nothing was going to happen to

them. The trial court excused the jurors from his chambers.

¶ 15 After excusing this group, the trial court then brought back into chambers, one by one,

each juror who expressed concerns. Each juror indicated that they could be fair. Specifically,

when asked if she could be fair to both sides, M.L. stated that she could be fair. M.L. stated that

she was scared but was not biased toward either side. Similarly, when asked if she could be fair,

J.B. stated, “Yes, I am fine.”

¶ 16 Subsequently, the trial court addressed all the jurors in open court, assuring them they

were safe and asking them to raise their hand if they could not “put anything that you’ve heard

aside and judge this case by the facts and evidence that you hear in this courtroom.” No juror

raised his or her hand. The trial judge then proceeded to conduct the trial.

¶ 17 Chicago police detective Robert Garza (Detective Garza) testified that on the day after

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the shooting, he interviewed Barron at the police station. During the interview, Barron mentioned

defendant and Richmond. Barron also indicated he had observed a Charger that was possibly

involved in the shooting. Thereafter, on October 12, 2011, defendant, Richmond, and Beachem

were arrested and placed in custody. Their entire interviews were recorded electronically.

¶ 18 Assistant State’s Attorney (ASA) Kelly Grekstas testified that on October 14, 2011, at

approximately 11 a.m., she started interviewing defendant. ASA Grekstas testified that she

interviewed defendant for approximately 46 hours. Detectives Scott Reiff and Stanek were also

present for various parts of the interview. Prior to questioning defendant, ASA Grekstas

informed defendant of his Miranda rights and that the interview was being recorded by an ERI

video surveillance system. The ERI video recording was admitted at trial.

¶ 19 In the video recording, defendant stated that on the afternoon of the shooting, he was at

Jordan’s apartment located on South Michigan Avenue. He was with Richmond, Beachem,

Beachem’s brother “Vince,” Beachem’s girlfriend Michelle Lawrence (Lawrence), and

Beachem’s friend “C4.” 2 Beachem informed him they were going to “fire the park up.”

Defendant understood this to mean that Beachem would “shoot the park up.” Beachem was

already inside Vince’s Charger. He had a silver .45-caliber handgun that defendant had not seen

before. Beachem handed the handgun to defendant. Defendant entered the vehicle and passed the

handgun to Richmond, who was in the back seat. Richmond already had a “three-eighty”

handgun with 9-millimeter shells in it. He said, “I already got a gun.” Defendant responded,

“[D]on’t use that jinky *** gun.” Defendant knew Richmond would shoot the handguns at the

park.

¶ 20 Vince drove the Charger with defendant and Richmond to Metcalfe Park. Lawrence

2 The full names of Vince and C4 are not indicated in the record. -6- 1-19-1825

drove her white Nissan with Beachem and C4 as passengers and followed the Charger to the

park. When the Charger was a block or two away from the park, defendant and Richmond

covered their faces with t-shirts. The Charger slowed down when they arrived at the park but

defendant did not observe anyone he recognized as a member of Welch World. He informed

Richmond, who responded, “I’m [gonna] show y’all what I’m about.” He then put both of his

arms out of the vehicle window and started firing the .45-caliber handgun and the “three-eighty”

handgun. Defendant heard the .45-caliber handgun stop shooting but the “three-eighty” handgun

continue firing. When the shooting stopped, Vince drove away with defendant and Richmond.

Defendant did not observe anyone being shot.

¶ 21 Shortly thereafter, defendant, Richmond, and Vince returned to the building on South

Michigan Avenue. Richmond still had the two handguns. He also found out on the news that an

individual had been killed during the shooting.

¶ 22 During the presentation of defendant’s interrogation video, defendant’s uncle, Earl

Streeter, shouted from the gallery “I told you don’t f*** with me.” The trial court paused the

video and, after the jury left the courtroom, found Earl Streeter in direct contempt and had him

taken into custody. The jury then returned to the courtroom, and the trial court asked the jury

whether there was “anything that would interfere with you judging this trial fairly.” No jurors

indicated that the outburst affected their impartiality.

¶ 23 The parties then stipulated that, if called to testify, Dr. Hillary McElligott (Dr.

McElligott), an assistant medical examiner employed by the Cook County Medical Examiner’s

Office, would testify as an expert in the field of forensic pathology. Dr. McElligott performed an

autopsy on the body of Brown. She would opine with a reasonable degree of medical and

forensic certainty that the cause of death was a gunshot wound and the manner of death was

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homicide. The State rested.

¶ 24 The parties then stipulated that, if called to testify, Chicago police lieutenant McFarlane

(Lieutenant McFarlane) would testify that on the day of the shooting, a witness had informed

him that an unknown offender in a white four-door vehicle that was traveling southbound on

State Street “shot” into a crowd of people on the basketball court in Metcalfe Park. 3 The defense

rested.

¶ 25 Following closing arguments, the jury found defendant guilty of first-degree murder of

Brown under an accountability theory. The jury, however, found defendant not guilty of

attempted first-degree murder of Barron and did not find that defendant had personally

discharged a firearm.

¶ 26 C. Vito Richmond’s Conviction and Sentence

¶ 27 In a separate trial, a jury convicted Richmond of first-degree murder and attempted first-

degree murder. People v. Richmond, 2018 IL App (1st) 142194-U, ¶ 20. Richmond was

sentenced to 22 years for first-degree murder plus a 20-year mandatory firearm enhancement and

6 years for attempted murder plus a 20-year firearm enhancement for a total of 68 years’

imprisonment. Id. ¶ 23. In 2018, this court found that Richmond was a juvenile at the time he

committed his offenses and was given a de facto life sentence, and we vacated Richmond’s

sentence and remanded the matter for resentencing. Id. ¶¶ 61, 72. In 2020, Richmond was

resentenced to 24 years for first-degree murder and 6 years for attempted murder.

D. Posttrial Proceedings

¶ 28 Defendant filed a motion for a new trial, which the trial court denied. The matter

proceeded to sentencing. Defendant’s presentence investigation report (PSI) reflected that

3 The record on appeal does not disclose Lieutenant McFarlane’s full name. -8- 1-19-1825

defendant had been found guilty of aggravated battery causing great bodily harm as a juvenile

and had been placed on five years’ probation. In the instant case, the trial court sentenced

defendant to 50 years’ imprisonment. Defendant then filed an amended motion to reconsider

sentence, and subsequently, the trial court resentenced defendant to 40 years’ imprisonment.

¶ 29 E. Appeal

¶ 30 Defendant appealed, arguing that (1) the trial court erred in denying his motion to

suppress, (2) the State failed to prove him guilty of first degree murder beyond a reasonable

doubt, (3) his trial counsel was ineffective at the suppression hearing and at trial, and (4) the trial

court denied him a fair trial when it improperly defined reasonable doubt to the jury. We

affirmed defendant’s conviction and sentence. See People v. Streeter, 2017 IL App (1st) 140990-

U, ¶ 82.

¶ 31 F. Postconviction Petition

¶ 32 In March 2019, defendant filed a pro se postconviction petition in which he alleged that

his trial counsel was ineffective for failing to call Jordan at the suppression hearing. In addition,

defendant alleged that his appellate counsel was ineffective for failing to argue on direct appeal

that defendant’s trial counsel was ineffective for failing to move for a mistrial after either the

jurors expressed concerns about their safety or Earl Streeter’s outburst. Finally, defendant

alleged that his sentence violated the eighth amendment of the United States Constitution and the

proportionate penalties clause of the Illinois Constitution and that his 40-year sentence for first-

degree murder was disproportionate to his co-defendant Richmond’s 22-year sentence for first-

degree murder. Attached to defendant’s petition was an affidavit from Jordan, who asserted that

she never spoke to Detective Stanek over the phone or in person. Jordan further asserted that she

never spoke to any detective while defendant was in custody.

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¶ 33 In June 2019, the trial court summarily dismissed the petition at the first stage, finding

that the petition was frivolous and patently without merit. The trial court found without merit

defendant’s claims that his trial and appellate counsels were ineffective, that his sentence

violated the eighth amendment of the United States Constitution, and that his sentence was

disproportionate to Richmond’s sentence. As to defendant’s claim that his sentence was

disproportionate, the trial court noted that Richmond’s sentence had been vacated and that he had

not been resentenced yet. Thus, the trial court concluded that defendant’s assertion that

Richmond received a 22-year sentence was false.

¶ 34 This appeal follows.

¶ 35 ANALYSIS

¶ 36 On appeal, defendant argues that the trial court erred in dismissing his postconviction

petition, which he asserts sufficiently set forth claims that (1) defendant received ineffective

assistance of trial counsel, (2) defendant received ineffective assistance of appellate counsel, (3)

defendant’s sentence violated the eighth amendment of the United States Constitution and the

proportionate penalties clause of the Illinois Constitution, and (4) defendant’s sentence was

disproportionate to Richmond’s sentence. For the following reasons, we affirm.

¶ 37 The Act

¶ 38 The Act “provides a method by which defendants may assert that, in the proceedings

which resulted in their convictions, there was a substantial denial of their federal and/or state

constitutional rights.” People v. Wrice, 2012 IL 111860, ¶ 47. A proceeding under the Act is a

collateral proceeding and not an appeal from the defendant’s conviction and sentence. People v.

Beaman, 229 Ill. 2d 56, 71 (2008). The defendant must show he suffered a substantial

deprivation of his federal or state constitutional rights. People v. Caballero, 228 Ill. 2d 79, 83

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(2008).

¶ 39 The Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a framework for incarcerated

individuals to collaterally attack their convictions by establishing the substantial denial of a

constitutional right during trial or sentencing. 725 ILCS 5/122-1(a)(1) (West 2018). Claims are

limited to those that were not and could not have been litigated. People v. Petrenko, 237 Ill. 2d

490, 499 (2010). Proceedings under the Act occur in three stages. People v. Gaultney, 174 Ill. 2d

410, 418 (1996). At the first stage, the trial court determines whether a petition is frivolous or

patently without merit. Id.; 725 ILCS 5/122-2.1(a)(2) (West 2018). At the second stage, the court

appoints counsel to represent the defendant and, if necessary, to file an amended petition; at this

stage, the State must either move to dismiss or answer the petition. Gaultney, 174 Ill. 2d at 418;

725 ILCS 5/122-4, 122-5 (West 2018). Only if the petition and accompanying documentation

make a substantial showing of a constitutional violation will the defendant proceed to the third

stage, an evidentiary hearing on the merits. People v. Silagy, 116 Ill. 2d 357, 365 (1987); 725

ILCS 5/122-6 (West 2018).

¶ 40 Defendant’s petition was dismissed at the first stage. Our supreme court has made clear

that, to survive first-stage scrutiny, a petition must state the “gist” of a constitutional claim.

People v. Hodges, 234 Ill. 2d 1, 9 (2009). Formal legal argument and citation of authority are not

required (id.), and all well-pleaded facts that are not positively rebutted by the record are taken as

true (People v. Romero, 2015 IL App (1st) 140205, ¶ 26). A petition may be summarily

dismissed as “frivolous or patently without merit” when it has “no arguable basis either in law or

in fact,” or in other words, when the petitioner’s claim relies “on an indisputably meritless legal

theory or a fanciful factual allegation.” (Internal quotation marks omitted.) People v. Boykins,

2017 IL 121365, ¶ 9. We review the summary dismissal of a postconviction petition de novo.

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People v. Brown, 236 Ill. 2d 175, 184 (2010).

¶ 41 Ineffective Assistance of Trial Counsel

¶ 42 Defendant first asserts that the trial court erred in summarily dismissing his

postconviction petition, which set forth an arguable claim of ineffective assistance of trial

counsel. In his petition, defendant alleged that had his trial counsel called Jordan as a witness at

the suppression hearing, she would have rebutted Detective Stanek’s testimony at the

suppression hearing that he informed Jordan that defendant was in custody. Defendant asserts

that, had counsel called Jordan as a witness, the trial court arguably would have found that the

police violated defendant’s statutory right to communicate with his family under section 103-3 of

the Code (725 ILCS 5/103-3 (West 2010)) and granted defendant’s motion to suppress.

¶ 43 At the first stage of postconviction proceedings under the Act, a petition alleging

ineffective assistance may not be summarily dismissed if (1) it is arguable that counsel’s

performance fell below an objective standard of reasonableness and (2) it is arguable that the

defendant was prejudiced. Hodges, 234 Ill. 2d at 17. Further, “[w]here it is possible to resolve an

ineffective-assistance claim on the basis that the defendant suffered no prejudice as a result of

counsel’s allegedly defective performance, the claim may be decided against the defendant

without consideration of whether counsel’s performance was actually deficient.” People v.

Coleman, 168 Ill. 2d 509, 528 (1995). Since we conclude that defendant was not arguably

prejudiced by counsel’s failure to call Jordan as a witness, we need not consider whether

counsel’s performance was arguably unreasonable. See Hodges, 234 Ill. 2d at 17; Coleman, 168

Ill. 2d at 528.

¶ 44 We find that defendant was not arguably prejudiced by his trial counsel’s failure to call

Jordan as a witness. When defendant was arrested and detained, section 103-3 of the Code

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provided that “[p]ersons who are arrested shall have the right to communicate with an attorney of

their choice and a member of their family by making a reasonable number of telephone calls or

in any other reasonable manner.” 725 ILCS 5/103-3 (West 2010). Our supreme court has

asserted that the purpose of section 103-3 is to allow a detainee “to notify his family of his

whereabouts and to notify them of the nature of the offense with which he is charged so that

arrangements may be made for bail, representation by counsel and other procedural safeguards

that the defendant cannot accomplish for himself while in custody.” People v. Prim, 53 Ill. 2d 62,

69-70 (1975); see also People v. Green, 2014 IL App (3d) 120522, ¶ 55 (citing id. at 69) (“The

intention of this section of the Code is to ‘permit a person held in custody to notify his family of

his whereabouts’ to enlist their help for procedural safeguards such as hiring an attorney.”).

¶ 45 On direct appeal, this court rejected defendant’s contention that the police denied his

rights under section 103-3 of the Code. People v. Streeter, 2017 IL App (1st) 140900-U, ¶ 49.

We reasoned in part that “the record does not demonstrate that defendant’s request to call Jordan

were made for legal advice.” Id. We further reasoned that “defendant admitted he never asked to

speak to an attorney” and that “defendant was advised of his right to counsel and waived such

right.” Id.

¶ 46 Even if defendant’s trial counsel had called Jordan as a witness to rebut Detective

Stanek’s testimony that he had spoken to Jordan, the record still would have demonstrated that

defendant never explained that he sought to call Jordan for the purpose of obtaining counsel, that

he never asked to speak to an attorney, and that he validly waived his right to counsel. See id.

Therefore, regardless of whether defendant’s trial counsel had called Jordan as a witness, the

record still would have demonstrated that defendant’s rights under section 103-3 of the Code

were not violated. See id.; see also People v. Williams, 2017 IL App (1st) 142733, ¶ 35 (finding

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no violation of section 103-3 since the defendant failed to “state the phone call was to request an

attorney or inform his family of his location so they could provide an attorney”); People v.

Green, 2014 IL App (3d) 120522, ¶¶ 55-58 (finding no violation of section 103-3 since “the

record does not show that [the defendant’s] requests for his family were made for legal advice”

and since defendant validly waived his right to counsel).

¶ 47 Thus, we find that the failure of defendant’s trial counsel to call Jordan as a witness did

not arguably prejudice defendant. See Hodges, 234 Ill. 2d at 17.

¶ 48 Ineffective Assistance of Appellate Counsel

¶ 49 Defendant next asserts that the trial court erred in summarily dismissing his

postconviction petition, which alleged that defendant’s appellate counsel was ineffective.

Specifically, defendant asserts that appellate counsel failed to argue that the trial court erred in

failing to declare a mistrial when Earl Streeter shouted “I told you don’t f*** with me” or when

the jurors voiced concerns about their safety.

¶ 50 Forfeiture

¶ 51 The State notes that defendant’s postconviction petition did not allege that appellate

counsel was ineffective by failing to argue that the trial court erred in failing to sua sponte

declare a mistrial. Rather, the petition alleged that appellate counsel was ineffective by failing to

argue that trial counsel was ineffective in failing to seek a mistrial. Thus, the State argues that

defendant has forfeited his argument that appellate counsel was ineffective. We agree.

¶ 52 When a defendant fails to raise a claim in a postconviction petition, he or she forfeits that

claim. 725 ILCS 5/122-3 (West 2018). In the case at bar, since defendant never alleged in his

postconviction petition that appellate counsel was ineffective for failing to argue that the trial

court erred, we find that defendant has forfeited his contention that appellate counsel was

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ineffective. See id.

¶ 53 In reaching this determination, we have considered People v. Thomas, 2014 IL App (2d)

121001, upon which defendant relies to support his contention that he did not forfeit his

argument that appellate counsel was ineffective. In Thomas, prior to the defendant’s trial for

first-degree murder, the defendant moved to admit the statement of N.H., who, during an

interview with police detectives, stated “I did it.” Id. ¶ 21. The trial court denied the motion,

finding that N.H.’s statement was not corroborated by other evidence. Id. ¶ 39. In addition, the

defendant filed a motion in limine to compel the testimony of a chaplain, who spoke to N.H. in

jail. Id. ¶ 24. During a hearing on the motion, the chaplain testified that N.H. confessed to

committing the murder for which the defendant was accused. Id. ¶¶ 27-30. The trial court denied

the motion, barring any evidence of N.H.’s confession to the chaplain. Id. ¶ 33.

¶ 54 Following trial, the defendant was convicted of first-degree murder, and on direct appeal,

the appellate court affirmed the trial court’s finding that N.H.’s confession to the police was not

corroborated. Id. ¶¶ 35, 39. The defendant did not raise on direct appeal the trial court’s

exclusion of the chaplain’s testimony. Id. ¶ 39.

¶ 55 The defendant filed a postconviction petition. Id. ¶ 41. In his petition, the defendant

asserted a claim alleging that his appellate counsel was ineffective by failing to argue on direct

appeal that his trial counsel was ineffective for failing to investigate and present evidence that

N.H. had confessed to the murder for which the defendant was convicted. Id. ¶ 53. In support,

the defendant alleged that the trial court suppressed N.H.’s confession to the police as well as his

confession to the chaplain. Id. The defendant further alleged that his trial counsel was ineffective

for failing to corroborate N.H.’s statement to the police detectives and that, had N.H.’s statement

been corroborated, there was a reasonable probability that the outcome of the defendant’s trial

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would have been different. Id. The trial court summarily dismissed the petition. Id. ¶ 41.

¶ 56 The defendant appealed the summary dismissal, contending that his petition stated the

gist of a constitutional claim that his appellate counsel was ineffective by failing to argue that the

trial court erred when it barred N.H.’s confession to the chaplain. Id. ¶ 56. In response, the State

argued that the defendant forfeited this contention since the defendant’s petition never alleged

that his appellate counsel was ineffective by failing to argue that the trial court erred. Id. ¶ 58.

The State noted that, instead, the defendant’s petition alleged that his appellate counsel was

ineffective by failing to argue ineffective assistance of trial counsel. Id. The Thomas court

rejected the State’s forfeiture argument, finding in part that the petition alleged that the trial court

erred by excluding N.H.’s confession to the chaplain. Id. ¶ 61. In addition, after liberally

construing the defendant’s petition and the record, the Thomas court found that “the logical

conclusion to be drawn” from the petition’s allegations is that the chaplain’s testimony was the

“other evidence” that the trial court should have admitted to corroborate N.H.’s statement to the

police detectives. Id. ¶ 62.

¶ 57 We find Thomas distinguishable from the case at bar. In Thomas, the court found that the

postconviction petition alleged that the trial court erred by excluding N.H.’s confession to the

chaplain. Id. ¶ 61. Further, the Thomas court liberally construed the petition and record to find

that the petition alleged that the trial court should have admitted the chaplain’s testimony to

corroborate N.H.’s confession to police detectives. Id. ¶ 62. Here, in contrast, defendant’s

petition explicitly and repeatedly faulted his trial counsel for failing to seek a mistrial, and it

alleged that his appellate counsel was ineffective for failing to raise this argument on direct

appeal. Defendant’s petition never alleged that the trial court erred in failing sua sponte to

declare a mistrial or that his appellate counsel should have raised this argument on direct appeal.

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See id. ¶¶ 61-62. A liberal construction of the petition and record cannot overcome this

deficiency. See id. ¶ 62.

¶ 58 Thus, we find that defendant has forfeited his argument that his appellate counsel

provided ineffective assistance. See id. ¶ 86 (“[W]hen a pro se petition is summarily dismissed,

postconviction appellate counsel may not present novel arguments that bear no relationship to

the petition.”). Nevertheless, since forfeiture is a limitation on the parties and not the court, we

overlook defendant’s forfeiture and consider his contention on the merits. See People v.

Sophanavong, 2020 IL 124337, ¶ 21.

¶ 59 Ineffective Assistance

¶ 60 We now turn to defendant’s contention on the merits. At issue here is whether defendant

set forth the gist of a constitutional claim that appellate counsel was ineffective for failing to

argue that the trial court should have declared a mistrial when Earl Streeter shouted “I told you

don’t f*** with me” or when the jurors voiced concerns about their safety.

¶ 61 A criminal defendant has a constitutional right to the effective assistance of counsel in an

appeal. Evitts v. Lucey, 469 U.S. 387, 393-97 (1985); People v. Robinson, 217 Ill. 2d 43, 61

(2005). “[A] claim of ineffective assistance of counsel on appeal is cognizable under the [Act]

[citation].” People v. Mack, 167 Ill. 2d 525, 531 (1995). Further, “[c]laims of ineffective

assistance of appellate counsel are measured against the same standard as those dealing with

ineffective assistance of trial counsel.” People v. Phillips, 2017 IL App (4th) 160557, ¶ 66. Thus,

a defendant must show that (1) the failure to raise an issue on appeal was objectively

unreasonable and (2) that decision prejudiced the defendant. Id. Unless the underlying claims are

meritorious, appellate counsel’s failure to raise those claims on appeal cannot prejudice

defendant. Id.

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¶ 62 Since defendant failed to raise these issues at trial by contemporaneous objection or in a

posttrial motion, defendant’s appellate counsel could have only requested that this court review

these issues under the plain-error doctrine. People v. Redmond, 2018 IL App (1st) 151188, ¶ 13.

The plain-error doctrine, however, is a narrow and limited exception. People v. Hillier, 237 Ill.

2d 539, 545 (2010). To obtain relief under this rule, a defendant must first show that a clear or

obvious error occurred. People v. Piatkowski, 225 Ill.2d 551, 565 (2007). Thus, to determine

whether there was plain error, we must first determine whether an error occurred. People v. Pike,

2016 IL App (1st) 122626, ¶ 109.

¶ 63 A trial court must declare a mistrial when it appears that the jurors were so influenced

that they could not have been fair and impartial. People v. Holliday, 2020 IL App (5th) 160547, ¶

37. When a defendant alleges that intimidation influenced the jurors, the defendant must show

that they had a disqualifying state of mind; the defendant’s mere suspicion of impartiality is not

enough. People v. Williams, 344 Ill. App. 3d 334, 336 (2003). When deciding whether the jurors

were so influenced that they could not be fair and impartial, a reviewing court should consider all

of the circumstances surrounding the alleged prejudicial events. People v. Walker, 386 Ill. App.

3d 1025, 1029 (2008). Further, we must give important consideration to the jurors’ assurances

that they can disregard alleged prejudicial events and remain fair. Id.

¶ 64 We first address defendant’s claim that appellate counsel was ineffective for failing to

argue on direct appeal that the trial court erred. During trial, a sheriff informed the trial court that

several jurors expressed concerns that when they arrived and departed from the courthouse,

people were pointing at them, staring at them, and “watching other jurors come in.” The trial

court first brought into chambers all the jurors who expressed concerns. M.L. informed the trial

court that “I feel like I’m going to cry right now” and that “[i]t makes me very nervous that

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whatever we decide, one side obviously is going to be really unhappy ***.” In addition, J.B.

informed the trial court that people were waiting for the jurors to walk by when they left the

courtroom, a young lady made a face at the jurors, and another person said “I think that’s one

[of] them right there.” J.B. asserted that these people were from Brown’s family. The trial court

said that nothing would happen to the jurors and excused them.

¶ 65 The trial court then brought into chambers each juror who expressed concerns. Each juror

indicated that they could be fair. Specifically, M.L. informed the trial court that she was scared

but was not biased toward either side. In addition, when asked whether J.B. could remain fair,

J.B. stated, “Yes, I am fine.” The trial court also addressed all the jurors in open court, assuring

them they were safe and asking them whether they could remain fair. All the jurors indicated that

they could be fair.

¶ 66 We find that defendant has not shown that a clear or obvious error occurred. The trial

court, on several occasions, assured the jurors that they were safe. Importantly, all the jurors

indicated that they could remain fair, and the jurors who expressed concerns twice indicated that

they could remain fair. See Walker, 386 Ill. App. 3d at 1029. Further, even though M.L. stated

that “I’m going to cry right now,” she later informed the trial court that she was scared but not

biased toward either side. Similarly, J.B. stated “I am fine.” See id. Thus, given the jurors’

repeated assurances that they could remain fair, along with the surrounding circumstances of the

case, we find that the record fails to demonstrate that alleged intimidation so influenced the

jurors that they could not remain fair and impartial. See id.; Williams, 344 Ill. App. 3d at 336.

¶ 67 Defendant asserts that the jurors who did express concerns affected the jurors who did not

express concerns. Defendant, however, fails to point to any evidence in the record that the jurors

who did not express concerns were biased, and this assertion is mere speculation. See People v.

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Smith, 341 Ill. App. 3d 729, 741 (2003); People v. Bolla, 114 Ill. App. 3d 442, 450 (1983).

¶ 68 Defendant further argues that the trial court should have declared a mistrial after Earl

Streeter shouted from the gallery “I told you don’t f*** with me.” Defendant asserts that after

the jurors were allegedly intimidated, the jurors “were also likely further alarmed” after Earl

Streeter’s outburst and that it “strengthened the jurors’ perception that there were members of the

audience that were potentially dangerous.” Again, defendant has merely asserted a suspicion of

impartiality, and he fails to point to any evidence in the record demonstrating that Earl Streeter’s

outburst caused the jurors to have a disqualifying state of mind. See Williams, 344 Ill. App. 3d at

336. Moreover, after the trial court found Earl Streeter in direct contempt and had him taken into

custody, the trial court asked the jury whether there was “anything that would interfere with you

judging this trial fairly,” and no jurors indicated that the outburst affected their impartiality. See

Walker, 386 Ill. App. 3d at 1029.

¶ 69 We find that defendant’s underlying claims are not meritorious, and his appellate

counsel’s failure to raise those claims on direct appeal did not prejudice defendant. See Phillips,

2017 IL App (4th) 160557, ¶ 66. Since defendant was not prejudiced, we need not address

whether appellate counsel’s performance was defective. See Coleman, 168 Ill. 2d at 528;

Phillips, 2017 IL App (4th) 160557, ¶ 66. Therefore, we find that defendant failed to set forth the

gist of an ineffective assistance of appellate counsel claim. See Hodges, 234 Ill. 2d at 9.

Eighth Amendment and Proportionate Penalties Clause

¶ 70 Defendant argues that he has stated the gist of a claim that his 40-year sentence, as

applied to his specific circumstances, violated the eighth amendment of the United States

Constitution and the proportionate penalties clause of the Illinois Constitution. Defendant, who

was 18 years old at the time of the offense, argues that the evolving science on juvenile maturity

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and brain development highlighted in Miller v. Alabama, 567 U.S. 460, 489 (2012), applies to

both juveniles and young adults. He further asserts that the trial court failed to consider his youth

and its attendant characteristics when sentencing him. We first turn to examine his claim under

the eighth amendment.

¶ 71 Eighth Amendment Claim

¶ 72 Defendant’s as-applied constitutional challenge stems from a line of cases from the

United States Supreme Court providing heightened protections for juvenile defendants in

sentencing under the eighth amendment of the United States Constitution, which prohibits cruel

and unusual punishment. U.S. Const., amend. VIII. The Supreme Court has held that the eighth

amendment prohibits capital sentences for juveniles who commit murder (Roper v. Simmons, 543

U.S. 551, 578-79 (2005)), mandatory life sentences without the possibility of parole for juveniles

who commit nonhomicide offenses (Graham v. Florida, 560 U.S. 48, 82 (2010)), and mandatory

life sentences without the possibility of parole for juveniles who commit murder (Miller v.

Alabama, 567 U.S. 460, 489 (2012)). These cases reflect society’s evolving recognition that

“children are constitutionally different from adults for purposes of sentencing.” Id. at 471. First,

juveniles generally “lack *** maturity and [have] an underdeveloped sense of responsibility,

leading to recklessness, impulsivity, and heedless risk-taking.” (Internal quotation marks

omitted.) Id. Second, because of their “limited contro[l] over their own environment” and their

general inability to remove themselves from crime-producing settings, juveniles “are more

vulnerable *** to negative influences and outside pressures.” (Internal quotation marks omitted.)

Id. Third, juveniles have characteristics that are not as “well-formed” as those of adults;

juveniles’ traits are “less fixed” and their actions are “less likely to be evidence of irretrievabl[e]

depravit[y].” (Internal quotation marks omitted.) Id.

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¶ 73 Following Miller, courts must consider juveniles’ youth and attendant characteristics

before sentencing them to life without parole. Id. at 483. In Montgomery v. Louisiana, 577 U.S.

190, 212 (2016), the Court held that this new substantive rule of constitutional law applies

retroactively. Our own supreme court has gone further, finding that Miller applies regardless of

whether the life sentence imposed is mandatory or discretionary, natural or de facto. People v.

Reyes, 2016 IL 119271, ¶¶ 9-10; People v. Holman, 2017 IL 120655, ¶ 40.

¶ 74 These protections afforded by the eighth amendment, however, apply only to juveniles.

As our supreme court has noted, the United States Supreme Court “has clearly and consistently

drawn the line between juveniles and adults for the purpose of sentencing at the age of 18.”

People v. Harris, 2018 IL 121932, ¶ 58. This cutoff was established “not based primarily on

scientific research” (id. ¶ 60) but because the United States Supreme Court felt that “a line must

be drawn” and because “[t]he age of 18 is the point where society draws the line for many

purposes between childhood and adulthood” (Roper, 543 U.S. at 574). Since defendant was 18

years old at the time of his offense, he failed to state the gist of a constitutional claim that his

sentence violated the eighth amendment.

¶ 75 We further observe that defendant was sentenced to 40 years’ imprisonment. In People v.

Buffer, 2019 IL 122327, ¶ 41, our supreme 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

eighth amendment.” Therefore, because defendant’s sentence was not a de facto life sentence, it

does not violate the eighth amendment. See id.

¶ 76 Proportionate Penalties Clause Claim

¶ 77 We next turn to consider defendant’s argument that he set forth the gist of a claim that his

sentence violated the proportionate penalties clause. The State maintains that defendant forfeited

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this argument since he failed to raise it on direct appeal. For the reasons that follow, based on our

supreme court’s recent decisions, we disagree with the State and find that this claim has not been

forfeited.

¶ 78 The proportionate penalties clause of the Illinois Constitution specifically provides that

“[a]ll penalties shall be determined according to the seriousness of the offense and with the

objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Our

supreme court has explained that this emphasis on rehabilitative potential provides “a limitation

on penalties beyond those afforded by the eighth amendment.” People v. Clemons, 2012 IL

107821, ¶¶ 39-41. Our supreme court, three times, has acknowledged that young adult offenders

are not foreclosed from raising under the proportionate penalties clause as-applied challenges to

their life sentences based on the evolving science of juvenile maturity and brain development.

See People v. House, 2021 IL 125124, ¶¶ 31-32; Harris, 2018 IL 121932, ¶¶ 46, 48; People v.

Thompson, 2015 IL 118151, ¶ 44.

¶ 79 In Thompson, the court concluded that an as-applied, youth-based sentencing claim of an

18-year-old offender would be more appropriately raised in postconviction proceedings rather

than on direct appeal due to the lack of a developed record. Thompson, 2015 IL 118151, ¶¶ 43-

44. In Harris, the court reached the same conclusion when it considered an as-applied, youth-

based sentencing claim of a 19-year-old offender. Harris, 2018 IL 121932, ¶ 48. Finally, in

House, the court reviewed the second-stage dismissal of the defendant’s postconviction petition

and, finding that the defendant’s proportionate penalties claim merited the trial court’s

consideration, reversed the dismissal and remanded the matter for further second-stage

proceedings to develop the record. House, 2021 IL 125124, ¶ 32. Thus, our supreme court has

left open the possibility that young adult offenders may demonstrate in post-conviction

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proceedings that their characteristics are so similar to a juvenile’s that imposing on them a life

sentence, absent Miller’s safeguards, is “cruel, degrading, or so wholly disproportionate to the

offense that it shocks the moral sense of the community.” People v. Klepper, 234 Ill. 2d 337, 348

(2009).

¶ 80 In the case at bar, however, the trial court did not impose a life sentence on defendant.

The trial court sentenced defendant to 50 years’ imprisonment, but upon defendant’s amended

motion to reconsider, the trial court resentenced defendant to 40 years’ imprisonment. As stated

above, a term of 40 years’ imprisonment is not a de facto life sentence. See Buffer, 2019 IL

122327, ¶ 41. Thus, Miller’s safeguards are inapplicable to defendant, and we find that he failed

to allege the gist of a constitutional claim under the proportionate penalties clause. See Miller,

567 U.S. at 489; House, 2021 IL 125124, ¶ 32; Harris, 2018 IL 121932, ¶ 48; Thompson, 2015

IL 118151, ¶¶ 43-44.

¶ 81 Disproportionate Sentence

¶ 82 Finally, defendant contends that he sufficiently set forth a claim that his 40-year sentence

for first-degree murder is grossly disproportionate to Richmond’s 24-year resentence for first-

degree murder.

¶ 83 The State notes that when defendant filed his post-conviction petition, Richmond’s

original sentence had been vacated, and Richmond had not yet been resentenced. Further, the

State asserts that since Richmond did not yet have a sentence, defendant could not have claimed

that his sentence was disproportionate. Thus, the State contends that our vacatur of Richmond’s

original sentence rendered defendant’s disproportionate-sentence claim moot.

¶ 84 Sentencing claims are only rendered moot when the “circumstances have changed during

the pendency of the appeal that prevent this court from rendering effectual relief.” People v.

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Williams, 209 Ill. 2d 227, 232 (2004). On the other hand, “an appeal remains viable where a

decision could have a direct impact on the rights and duties of the parties.” (Internal quotation

marks omitted.) People v. Jackson, 199 Ill. 2d 286, 294 (2002).

¶ 85 Since, at the time of this appeal, Richmond has a new sentence, we find that we are not

prevented from rendering effectual relief or issuing a decision that can impact the parties’ rights

and duties. See Williams, 209 Ill. 2d at 232; Jackson, 199 Ill. 2d at 294. We thus decline to find

defendant’s claim moot.

¶ 86 Turning to the merits, defendant asserts that his 40-year sentence for first-degree murder

was disproportionate to his co-defendant Richmond’s 24-year sentence for first-degree murder.

Defendant contends that these sentences are grossly disproportionate since defendant was

convicted under a theory of accountability while Richmond was found to have discharged the

firearm.

¶ 87 Disproportionate-sentence claims are cognizable under the Act. People v. Caballero, 179

Ill. 2d 205, 216 (1997). “Arbitrary and unreasonable disparity between the sentences of similarly

situated codefendants is impermissible.” Id. A mere disparity in sentences, however, does not by

itself establish that a defendant’s sentence is fundamentally unfair. People v. Kline, 92 Ill. 2d

490, 508 (1982). It is not the disparity that counts, but the reason for the disparity. People v.

Martinez, 372 Ill. App. 3d at 750, 760 (2007). A difference in sentences may be justified by

factors including the defendant and codefendants’ relevant character and history, degree of

culpability, criminal records, or rehabilitative potential. People v. Rodriguez, 402 Ill. App. 3d

932, 940 (2010).

¶ 88 In the case at bar, we first observe that when defendant committed the offense, he was an

adult and was previously found guilty of aggravated battery. Richmond, on the other hand, was a

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juvenile when he committed his offense. Moreover, defendant fails to point to any criminal

record from Richmond, conceding that “it is unclear whether Richmond had any prior

convictions.” Thus, although defendant was convicted under a theory of accountability while

Richmond was found to have discharged the firearm, given defendant and Richmond’s character

and history as well as defendant’s criminal record, we find that defendant’s postconviction

petition failed to sufficiently allege that he and Richmond were similarly situated or that the

disparity between their sentences was “arbitrary or unreasonable.” Caballero, 179 Ill. 2d at 216;

Rodriguez, 402 Ill. App. 3d at 940.

¶ 89 CONCLUSION

¶ 90 For the reasons set forth above, we affirm the trial court’s summary dismissal of

defendant’s pro se postconviction petition.

¶ 91 Affirmed.

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