No. 2-12-0471 Opinion filed May 6, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kendall County. ) Plaintiff-Appellee, ) ) v. ) No. 09-CF-505 ) ZACHARY A. REYES, ) Honorable ) John A. Barsanti, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Burke and Spence concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, the juvenile defendant, Zachary A. Reyes, was convicted of one

count of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)) and two counts of

attempted murder with a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)). The defendant was

sentenced to 97 years’ imprisonment. On appeal, the defendant argues that the automatic

transfer statute of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-130

(West 2008)) (also known as the excluded jurisdiction statute), which requires that certain

juveniles be tried and sentenced as adults, is unconstitutional. The defendant also argues that,

under the holding in Miller v. Alabama,

,

(2012), the Illinois

statutory sentencing scheme is unconstitutional as applied to him. We affirm.

¶2 BACKGROUND

¶3 On January 15, 2010, the then-16-year-old defendant was charged by indictment with 16

counts for offenses that occurred on December 20, 2009, when the victim, Jason Ventura, was

killed. The first five counts alleged that the defendant committed first-degree murder of the

victim by shooting him in violation of sections 9-1(a)(1) and 9-1(a)(2) of the Criminal Code of

1961 (Criminal Code) (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)). The indictment also

contained two counts of attempted murder with a firearm, one committed against Eduardo

Gaytan and the other against Jorge Ruiz, in violation of section 8-4(a) of the Criminal Code (720

ILCS 5/8-4(a) (West 2008)). The other nine counts were either dismissed or nol-prossed prior to

trial.

¶4 On August 18, 2011, the State filed a notice stating its intent to seek firearm add-ons of

15 years, 20 years, or 25 years to life pursuant to section 5-8-1 of the Unified Code of

Corrections (730 ILCS 5/5-8-1 (West 2008)).

¶5 A jury trial commenced on January 23, 2012. The jury ultimately found the defendant

guilty of first-degree murder and found that the defendant personally discharged the firearm that

proximately caused the victim’s death. The jury also found the defendant guilty of the two

counts of attempted first-degree murder and found that the defendant personally discharged the

firearm in both of those attempts.

¶6 On March 29, 2012, the defendant’s motion for a new trial was denied and the trial court

held a sentencing hearing. Following the hearing, the trial court sentenced the defendant to 45

years’ imprisonment for first-degree murder. This sentence was the minimum 20-year sentence

(see 730 ILCS 5/5-4.5-20(a) (West 2008) (providing range of 20 to 60 years)), plus a mandatory

25-year firearm enhancement (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008) (add-on may be 25

years to natural life)). The trial court also sentenced the defendant to 26 years’ imprisonment for

-2-

each attempted-murder conviction, each of which was the minimum 6-year sentence (730 ILCS

5/5-4.5-25(a) (West 2008) (providing range of 6 to 30 years)), plus a mandatory 20-year firearm

enhancement (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2008)). The trial court found that the

defendant’s first-degree-murder conviction required consecutive sentences pursuant to section 5-

8-4(d)(1) of the Unified Code of Corrections (730 ILCS 5/5-8-4(d)(1) (West 2008)). The trial

court therefore ordered all the sentences to run consecutively to each other. In total, the

defendant was sentenced to 97 years’ imprisonment, of which he must serve at least 89 years,

making him first eligible for mandatory supervised release (MSR) at age 105. Following the

denial of his motion to reconsider his sentence, the defendant filed a timely notice of appeal.

¶7 ANALYSIS

¶8 On appeal, the defendant argues that the automatic transfer statute (705 ILCS 405/5-130

(West 2008)), which requires that minors 15 years old or older charged with certain crimes be

prosecuted and sentenced as adults, violates the eighth amendment to the United States

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

Constitution (Ill. Const. 1970, art. I, § 11), as well as the due process clauses of both the United

States Constitution (U.S. Const., amends. V, XIV) and the Illinois Constitution (Ill. Const. 1970,

art. I, § 2). The defendant further argues that his 97-year aggregate term of imprisonment is a

de facto mandatory natural life term of imprisonment that is unconstitutional pursuant to Miller.

We will address each argument in turn.

¶9 The defendant’s first argument is that the automatic transfer statute violates the eighth

amendment to the United States Constitution and the proportionate penalties clause of the Illinois

Constitution because it requires that juveniles charged with first-degree murder be automatically

transferred to criminal court for trial and, if convicted, be sentenced as adults. The defendant

notes that adult sentences and sentence enhancements, such as the mandatory firearm

-3-

enhancements (730 ILCS 5/5-8-1 (West 2008)), mandatory consecutive sentencing (730 ILCS

5/5-8-4 (West 2008)), and the “truth in sentencing” provisions (730 ILCS 5/3-6-3 (West 2008)),

apply to juveniles who are prosecuted as adults. The defendant contends that the automatic

transfer statute and the adult sentencing requirements do not take into account the inherent

differences between juveniles and adults, specifically the attendant circumstances of youth.

¶ 10 We review de novo a challenge to the constitutionality of a statute. People v. Luciano,

. Further, we presume that statutes are constitutional. People v.

Vasquez,

. Thus, a defendant challenging the constitutionality of

a statute must establish its constitutional invalidity.

The eighth amendment protects both

children and adults from cruel and unusual punishment. U.S. Const., amend. VIII; Miller,

,

. The proportionate penalties clause of the Illinois Constitution

provides that “[a]ll penalties shall be determined both according to the seriousness of the offense

and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I,

§ 11. The proportionate penalties clause is coextensive with the cruel-and-unusual-punishment

clause of the eighth amendment. People v. Pacheco,

.

¶ 11 The defendant’s first argument, as well as his other arguments that follow, are based on

three United States Supreme Court decisions. In Roper v. Simmons,

(2005),

the Supreme Court held that the eighth amendment barred capital punishment for juvenile

offenders. In Graham v. Florida,

(2010), the Supreme Court held that a

sentence of life without the possibility of parole violated the eighth amendment when imposed

on juvenile offenders for crimes other than homicide. In Miller, the Supreme Court held that the

eighth amendment prohibited “a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders,” even those convicted of homicide offenses. Miller,

,

. Miller did not preclude a sentence of life without parole for

-4-

homicide offenders; it required only that the trial court first consider the special characteristics of

young offenders, such as immaturity, impetuosity, and the failure to appreciate risks and

consequences, before imposing such a sentence on a juvenile defendant.

at ___,

. The defendant contends that these cases are “rooted in scientific and common sense

recognition that fundamental differences exist between children and adults[,] which must be

considered when evaluating the constitutionality of adult sentences imposed on children.” The

defendant argues that, under our statutory scheme, the trial court has no opportunity to take a

juvenile defendant’s age or culpability into account and make an individualized determination as

to whether adult punishment is appropriate.

¶ 12 The defendant acknowledges that, in Pacheco, the Fourth District Appellate Court held

that the automatic transfer statute does not violate the eighth amendment or the proportionate

penalties clause. Pacheco,

; see also People v. Salas,

(the automatic transfer statute did not violate the eighth

amendment or the proportionate penalties clause, because it did not impose a punishment; it

merely specified the forum in which the defendant’s guilt may be adjudicated); People v.

Jackson,

(agreeing with Salas). The present defendant asks

us to disregard this precedent.

¶ 13 However, subsequent to the filing of the defendant’s briefs in this case, our supreme court

issued its decision in People v. Patterson,

, which specifically rejected the same

arguments raised by the defendant here. In Patterson, our supreme court held that the automatic

transfer statute did not violate the eighth amendment or the proportionate penalties clause. Id.

¶ 106. The supreme court rejected the assertion that the resultant application of mandatory

consecutive sentencing and truth in sentencing rendered the automatic transfer statute a

sentencing statute. Id. ¶ 104. The court reasoned that the purpose of the automatic transfer

-5-

statute was not to punish a defendant; its purpose was to establish the relevant forum for the

prosecution of a juvenile charged with one of five serious crimes. Id. ¶ 105. The court held that,

because the automatic transfer statute failed to impose actual punishment, the defendant’s eighth

amendment challenge necessarily failed. Id. ¶ 106. The court also rejected the defendant’s

challenge based on the proportionate penalties clause because that clause was co-extensive with

the eighth amendment’s cruel-and-unusual-punishment clause. Id. Thus, our supreme court

upheld the automatic transfer statute’s constitutionality, and the defendant’s first contention on

appeal is without merit.

¶ 14 The defendant’s next contention on appeal is that the automatic transfer statute violates

the due process clauses of the United States and Illinois Constitutions. U.S. Const., amend. XIV;

Ill. Const. 1970, art. I, § 2. Specifically, the defendant argues that, on its face, the automatic

transfer statute denies due process of law “because it provides no mechanism by which a trial

court can make an individualized determination as to whether the juvenile should be tried in

criminal court and subjected to sentencing pursuant to statutes that were intended for adult

offenders.”

¶ 15 The defendant acknowledges that, nearly 30 years ago, in People v. J.S.,

(1984), the Illinois Supreme Court found that the automatic transfer statute satisfied due

process. The defendant argues that the viability of that holding is questionable in light of Miller,

Graham, and Roper. However, our supreme court rejected this argument in Patterson as well.

In Patterson, the court noted that it had found that the automatic transfer statute did not violate

due process in J.S.,

and, later, in People v. M.A.,

(1988). Patterson,

, ¶¶ 93-95. The court rejected the Patterson defendant’s reliance on the eighth

amendment analyses in Roper, Graham, and Miller to support his due process claims, noting that

“a constitutional challenge raised under one theory cannot be supported by decisional law based

-6-

purely on another provision.” Id. ¶ 97. The Patterson court held that Roper, Graham, and

Miller did not provide a basis to reconsider its holding in J.S. Id. ¶ 98. Thus, here, the

defendant’s due process claim fails under Patterson.

¶ 16 The defendant’s final contention on appeal is that his 97-year aggregate prison sentence

is a de facto mandatory natural life term of imprisonment and is unconstitutional under Miller.

The defendant notes that the truth-in-sentencing statute requires that he serve a little over 89

years of that term and that he will not be eligible for MSR until he is 105 years old. The

defendant acknowledges that the Miller defendants were each sentenced to a single prison term

of natural life without the possibility of parole but argues that his sentence is, in effect, the same,

making it cruel and unusual punishment.

¶ 17 In arguing that his sentence is a de facto mandatory life term of imprisonment, the

defendant relies on People v. Thomas,

(Cal. Ct. App. 2012). In Thomas,

the defendant, Dejon Satterwhite, a participant in drive-by shootings that occurred on August 13

and 14, 2004, was convicted of two counts of murder, three counts of attempted murder, and two

counts of shooting at an occupied motor vehicle.

. As a result of adult sentencing

ranges, enhancements, and consecutive sentencing requirements, Satterwhite was sentenced to an

aggregate prison term of 196 years to life.

.

¶ 18 On review, Satterwhite argued that his sentence should be reversed and the cause

remanded in light of Miller, which held that, in homicide cases, the imposition of a mandatory

life sentence without the possibility of parole on juvenile offenders violated the eighth

amendment.

. The Thomas court held that Satterwhite’s aggregate sentence of 196

years to life was the functional equivalent of a mandatory-life-without-parole sentence in

violation of Miller.

. The reviewing court therefore remanded the matter for

resentencing so that the trial court could exercise its discretion in light of Miller.

.

-7-

¶ 19 In arguing that the defendant’s sentence is not unconstitutional, the State relies on People

v. Gay,

. In Gay, the defendant had accumulated 16 aggravated-

battery convictions over a number of years while imprisoned, all as a result of behavior toward

corrections officers. Id. ¶ 4. This resulted in 97 years of consecutive sentences. Id. The

defendant filed a postconviction petition in a case involving one of the charges, arguing that his

aggregated sentences were cruel and unusual as they amounted to a de facto life-without-parole

sentence. Id. ¶ 19. The defendant contended that this violated Graham because, as a sufferer of

mental illness, he belonged to a less culpable class of persons. Id.

¶ 20 The reviewing court determined that Graham’s ban on life-without-parole sentences for

juvenile nonhomicide offenders applied to such sentences only when tied to a single conviction.

It did not apply to the defendant’s accumulation of sentences. Id. ¶ 23. The reviewing court

further noted that it found unpersuasive the defendant’s “unstated premise that, after he had

accumulated some unspecified duration of consecutive prison sentences, the Constitution

prohibited the State from punishing any further crimes defendant committed.” Id. ¶ 24. The

reviewing court held that the eighth amendment “allow[ed] the State to punish a criminal for

each crime he commits, regardless of the number of convictions or the duration of sentences he

has already accrued.” Id. ¶ 25. Finally, the reviewing court found unpersuasive the defendant’s

comparison between juvenile defendants and mentally ill defendants. Id. ¶ 29. The reviewing

court determined that there was no national consensus against punishing mentally ill persons as

severely as others and that case law did not support a finding of lessened culpability of mentally

ill offenders. Id.

¶ 21 Gay is clearly distinguishable from the present case. Gay did not involve a juvenile—the

Gay court itself rejected the defendant’s comparison between juvenile and mentally ill

defendants—and the aggregate sentence was based on repeated offenses that took place over a

-8-

number of years. Nonetheless, the Gay court rejected the argument that Graham extended to an

aggregate term-of-years sentence that was a “de facto” sentence of life without parole. Id. ¶ 23.

¶ 22 In Patterson, the defendant argued that the combination of the automatic transfer statute

and the applicable sentencing statutes was unconstitutional as applied to him because, as a

nonhomicide offender, he was less deserving of more serious forms of punishment. Patterson,

. In rejecting this argument, our supreme court noted that both it and the

United States Supreme Court have limited the application of the rationale expressed in Roper,

Graham, and Miller to those cases involving “the most severe of all criminal penalties,” namely,

the death penalty or a sentence of life without parole. Id. ¶¶ 108, 110. The court found that “[a]

prison term totaling 36 years for a juvenile who personally committed three counts of aggravated

criminal sexual assault does not fall into that category.” Id. ¶ 110. The court thus declined to

extend the Supreme Court’s eighth amendment rationale to the facts of that case. Id. Recently,

in People v. Cavazos,

, this court held that Miller did not extend

to the defendant’s 75-year sentence, which was based on the aggregation of sentences for first-

degree murder and attempted first-degree murder.

¶ 23 In the present case, the defendant was sentenced to an aggregate term of 97 years’

imprisonment. As in Patterson and Cavazos, we decline to extend the eighth amendment

rationale in Miller to the facts of this case. Once again, the defendant did not receive the most

severe of all possible penalties, such as the death penalty or life without the possibility of parole.

Rather, he received an aggregate term-of-years sentence. Unlike the Miller defendants, who

were sentenced to life without parole based on single murder convictions, the present defendant

received consecutive term-of-years sentences based on multiple counts and multiple victims.

Here, the defendant was convicted of discharging a firearm that killed one person and attempting

-9-

to murder two others. Based on these distinguishing facts, the defendant’s sentence does not

violate Miller.

¶ 24 We acknowledge that there is a split of authority on this issue, as demonstrated by the

defendant’s reliance on Thomas. Compare Thomas,

, Bear Cloud v.

State,

,

(Wyo. 2014) (extending Miller rationale to aggregate

sentence that was the functional equivalent of life without parole), and State v. Null,

(Iowa 2013) (same), with State v. Brown, 2012-0872, pp. 14-15 (La. 5/7/13);

(holding that Graham did not preclude aggregate fixed-term sentence, based on multiple

convictions, that exceeded the juvenile defendant’s life expectancy), Bunch v. Smith,

(6th Cir. 2012) (holding that Graham did not apply to an 89-year sentence resulting

from consecutive fixed-term sentences for multiple nonhomicide offenses), and State v. Kasic,

(Ariz. Ct. App. 2011) (holding that Graham was limited to sentences of

“life without parole”).

¶ 25 Nonetheless, we conclude that an expansion of the holding in Miller to the facts of this

case would result in confusion and uncertainty. See Bunch,

(questioning what

number of years might or might not constitute a de facto life sentence, whether race, gender, or

socioeconomic status would have to be considered, and whether the number of crimes would

matter). We recognize that, due to their inherent differences, there is an evolving trend to treat

juvenile offenders differently from adult offenders. See Cavazos,

. Indeed, our supreme court or the United States Supreme Court may ultimately expand the

Graham and Miller precedents to de facto life sentences. However, based on current precedent,

including our supreme court’s most recent pronouncement in Patterson, we decline to extend the

rule in Miller to the facts in this case.

¶ 26 CONCLUSION

- 10 -

¶ 27 For the foregoing reasons, the judgment of the circuit court of Kendall County is

affirmed.

¶ 28 Affirmed.

- 11 -