No. 1-17-0308 Opinion filed August 1, 2019 Fourth Division

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 95 CR 26400 (01) ) TAKI PEACOCK, ) Honorable ) Frank Zelezinski, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

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

OPINION

¶1 Defendant, Taki Peacock, is currently serving concurrent respective sentences of 80

years, 30 years, 30 years, and 30 years of imprisonment for his convictions for the 1995 first

degree murder, aggravated kidnapping, aggravated vehicular hijacking, and armed robbery of the

victim, Rufus Taylor. The evidence at defendant’s bench trial, which is more fully set out in the

opinion arising out of defendant’s direct appeal (see People v. Peacock,

(2001)), showed that defendant and a co-offender, Lawrence Wallace, planned to take the

victim’s car and defendant obtained a gun from his sister-in-law. The next day, Wallace put a

gun to the victim’s head and held him at gunpoint in the backseat of the victim’s vehicle, while

defendant drove to a secluded location. Thereafter, Wallace shot the victim twice, and defendant fired at the victim once but missed. Wallace and defendant left in the victim’s car and were

apprehended in that vehicle in Indiana. The victim later died from his injuries. Defendant was 17

years old at the time of the offense.

¶2 This appeal concerns defendant’s September 12, 2016, successive postconviction

petition, in which he argued that his 80-year sentence was an unconstitutional de facto life

sentence pursuant to Miller v. Alabama,

(2012). The circuit court denied defendant

leave to file his successive postconviction petition on October 12, 2016, finding that the petition

was untimely and that defendant had failed to file a motion for leave to file the petition.

¶3 In this court, defendant contends that he should have been permitted to file his successive

postconviction petition because the 80-year sentence imposed on his conviction for a crime

committed while he was a juvenile constitutes a de facto life sentence and violates the eighth

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

Illinois Constitution. Defendant acknowledges that he may qualify for day-for-day credit, and

accordingly, he will be required to serve at least 50%, or 40 years, of his 80-year sentence.

Defendant contends that his sentence is a de facto life sentence, triggering the protections of

Miller and requiring a sentencing court to consider defendant’s youth and attendant

characteristics in fashioning a sentence. Defendant further contends that the circuit court did not

consider such factors, and accordingly, this court should remand his case for a new sentencing

hearing.

¶4 The State responds that the circuit court properly denied defendant leave to file his

successive postconviction petition because his 80-year sentence, for which he will “likely serve

40 years,” does not constitute a de facto life sentence. The State points out that a review of

defendant’s Illinois Department of Corrections (IDOC) inmate status record reveals a projected discharge date of August 31, 2035, exactly 40 years after he went into IDOC custody, on August

31, 1995. 1

¶5 We note that this court previously stayed this case, without objection from either party,

because the singular issue in this case would be controlled by the supreme court’s forthcoming

decision in People v. Buffer,

. The supreme court has since issued its decision in

Buffer, and accordingly, this court lifted the stay for ruling on this case.

¶6 In Buffer, the supreme court reviewed the circuit court’s denial of the defendant’s

postconviction petition, in which the defendant argued that his 50-year prison sentence, imposed

for a crime he committed when he was 16 years old, violated the eighth amendment because it

was a de facto life sentence.

¶7 After reviewing the history of Miller and its progeny, the court in Buffer noted that to

prevail on such a claim, “a defendant sentenced for an offense committed while a juvenile 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 (citing People v. Holman,

, and People v.

Reyes,

).

¶8 The supreme court then considered where the line should be drawn at which a sentence

constitutes a de facto life sentence. In its analysis, the supreme court looked to section 5-4.5-

105(c) of the Unified Code of Corrections (Code), which provides that where a juvenile

defendant is convicted of the first degree murder of a victim belonging to certain categories of

persons, including police officers and IDOC employees, “ ‘the court shall impose a sentence of

1 This court may take judicial notice of information appearing on the IDOC website. People v. Ware,

. not less than 40 years of imprisonment.’ ”

¶ 37 (quoting 730 ILCS 5/5-4.5-105(c) (West

2016)).

¶9 The supreme court used this statute to conclude that

“the General Assembly has determined that the specified first degree murders that

would justify natural life imprisonment for adult offenders would warrant a

mandatory minimum sentence of 40 years for juvenile offenders. The legislature

evidently believed that this 40-year floor for juvenile offenders who commit

egregious crimes complies with the requirements of Miller.” Id. ¶ 39.

¶ 10 The supreme court then stated,

“In determining when a juvenile defendant’s prison term is long enough to

be considered de facto life without parole, we choose to draw a line at 40 years.

This specific number does not originate in court decisions, legal literature, or

statistical data. It is not drawn from a hat. Rather, this number finds its origin in

the entity best suited to make such a determination—the legislature.” Id. ¶ 40.

¶ 11 The court then 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.” Id. ¶ 41. Accordingly, the court found that the defendant’s 50-year sentence, which

was greater than 40 years, was a de facto life sentence. Id. ¶ 42.

¶ 12 The court in Buffer also concluded that the circuit court failed to consider the defendant’s

youth and its attendant characteristics in imposing that sentence. Id. While the court noted that

the circuit court stated that it “ ‘considered all of the relevant statutory requirements,’ ” including

the presentence investigation report (PSI) and the defendant’s age, the record did not indicate that the court considered defendant’s youth and its attendant characteristics as required by Miller

and its progeny. Id. ¶¶ 5, 46 (citing Holman,

).

¶ 13 Following the supreme court’s decision in Buffer, this court allowed the parties to file

supplemental briefs to address the impact of the supreme court’s opinion on defendant’s claims.

¶ 14 In defendant’s supplemental brief, he contends that Buffer supports a finding that his 80-

year sentence constitutes a de facto life sentence and that such a conclusion is warranted when

considering either his full sentence or the possibility that he may serve 40 years in prison under

day for day sentencing. Defendant contends that the Buffer court “did not clearly delineate”

whether a de facto life sentence is a sentence of “40 years or more” or if it only includes

sentences that are “more than 40 years.” Defendant acknowledges that the court stated that “a

prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto

life sentence.” Id. ¶ 41. Defendant, however, also points out that the Buffer court stated that it

chose “to draw a line at 40 years” (id. ¶ 40) and that the special concurrence in Buffer

characterized the majority opinion as holding that “a prison term of 40 years ‘is long enough to

be considered de facto life without parole’ ” (id. ¶ 60 (Burke, J., specially concurring)).

Defendant also points out that the supreme court’s analysis was based on section 5-4.5-105(c) of

the Code, and contends that the supreme court’s statement that a sentence of 40 years is not a

de facto life sentence “does not make sense in light of section 5-4.5-105(c)’s requirement that the

minimum sentence of 40 years be imposed on a juvenile for offenses that would require the

imposition of natural life for an adult.” Finally, defendant asserts that, even assuming that the

Buffer court intended that only sentences of more than 40 years constitute de facto life sentences,

defendant’s sentence violates Buffer because it is not guaranteed that he will serve only 40 years and his sentence is “entirely dependent on the condition that *** he will not forfeit even one day

of good conduct credit.”

¶ 15 In response, the State contends that defendant’s sentence is constitutional under Buffer.

The State points out that defendant’s projected release date was previously August 31, 2035,

“exactly 40 years from the date of the offense,” but between the time defendant filed his

supplemental brief and the State filed its response, “defendant’s projected release date was

recently shortened by 15 days to August 16, 2035.” The State contends that defendant will “now

likely serve 39 years, 11 months and 16 days in prison” prior to his release, and accordingly, “his

sentence does not constitute a de facto life sentence in violation of the eighth amendment.”

¶ 16 Although the supreme court’s decision in Buffer did not specifically address the situation

we are faced with here, in which a defendant has been sentenced to a lengthy prison sentence but

is eligible for good-conduct sentencing credit, Buffer’s reasoning applies. The import of Miller,

and all of the subsequent decisions following it, including Buffer, is “ ‘that imposition of a

State’s most severe penalties on juvenile offenders cannot proceed as though they were not

children.’ ” Id. ¶ 18 (quoting Miller,

).

¶ 17 Following our supreme court’s guidance in Buffer, we conclude that defendant’s 80-year

sentence in this case constitutes a de facto life sentence. See also People v. Harvey,

(holding that, pursuant to Buffer, the defendant’s 52-year sentence was a

de facto life sentence).

¶ 18 In so holding, we recognize that defendant may be eligible for day-for-day credit,

pursuant to which he may be eligible for release after 40 years—on the dividing line between

what the supreme court has defined as de facto life and not de facto life sentences. Although the

parties disagree as to whether the supreme court has explicitly concluded that a sentence on the 40-year dividing line should be considered a de facto, or not a de facto, life sentence, we need

not make that determination here.

¶ 19 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. See People ex rel.

Colletti v. Pate,

(1964) (“Good time, although a part of every sentence, is a

conditional right which may be forfeited prior to the time a convict is entitled to discharge,

having served his maximum sentence less good-time credits.”); People ex rel. Braver v.

Washington,

(1999) (“The award of good-conduct time and the

decision to consider such an award are discretionary by statute; the Director of IDOC is not

required to grant the time or even consider it, absent a clear duty to act ***.”). The IDOC “has

the right to revoke good-conduct credits for disciplinary infractions, [and] an inmate’s right to

receive the credits is contingent upon his good behavior while in prison.” Johnson v. Department

of Corrections,

(2006); see also People v. Lindsey,

(2001) (the purpose of credit provisions is to “provide felonious inmates with incentive

to conform their behavior to prison rules”). The IDOC “ultimately has discretion as to whether

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

which a defendant’s good conduct credit is earned or lost. (Internal quotation marks omitted.)

People v. Castano,

(2009). Accordingly, we conclude that defendant’s

80-year sentence, for which he may receive day-for-day credit, constitutes a de facto life

sentence. ¶ 20 Our conclusion remains the same despite the State’s reference to defendant’s IDOC

inmate status report, which indicates that his projected release date was shortened by 15 days to

August 16, 2035, making his projected sentence approximately two weeks under 40 years. See

Internet Inmate Status, Ill. Dep’t of Corr., https://www.idoc.state.il.us/subsections/search/

inms_print.asp?idoc=K67561 (last visited July 24, 2019) [https://perma.cc/3R2Z-9UC6]. As

stated above, our review of defendant’s IDOC status report one month prior, indicated that his

projected release date was August 31, 2035. It is unclear to this court what circumstances

supported the 15-day adjustment in defendant’s projected release date, and the State has provided

no explanation for the change. Nonetheless, the change in defendant’s projected release date only

illustrates the uncertainty and indefiniteness in defendant’s sentence based on the IDOC’s

authority to award or revoke sentencing credit. See People ex rel. Colletti,

;

People ex rel. Braver,

. In these circumstances, and in the interests of

justice, we conclude that defendant’s sentence constitutes a de facto life sentence. See People v.

Taylor,

(2006) (“criminal or penal statutes are to ‘be strictly construed in

favor of the accused, and nothing should be taken by intendment or implication beyond the

obvious or literal meaning of the statute’ ” (quoting People v. Laubscher,

(1998))); People v. Gutman,

(“Pursuant to the rule of lenity, ambiguous

criminal statutes will generally be construed in the defendant’s favor.”).

¶ 21 We also conclude that the circuit court failed to consider the defendant’s youth and its

attendant characteristics in imposing defendant’s sentence. The State conclusively asserts that the

record establishes that the circuit court “considered *** defendant’s age and its attendant

circumstances,” but the State provides no support for such a conclusion. ¶ 22 As our supreme court has stated, a juvenile defendant may be sentenced to life or de facto

life imprisonment, but before doing so, the trial court must

“determine[ ] that the defendant’s conduct showed irretrievable depravity,

permanent incorrigibility, or irreparable corruption beyond the possibility of

rehabilitation. The court may make that decision only after considering the

defendant’s youth and its attendant characteristics. Those characteristics include,

but are not limited to, the following factors: (1) the juvenile defendant’s

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

immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the

juvenile defendant’s family and home environment; (3) the juvenile defendant’s

degree of participation in the homicide and any evidence of familial or peer

pressures that may have affected him; (4) the juvenile defendant’s incompetence,

including his inability to deal with police officers or prosecutors and his

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

for rehabilitation.” Holman,

.

See also Buffer,

, ¶ 19.

¶ 23 The State points out that the circuit court “reviewed the [PSI] and considered evidence in

aggravation and mitigation—including that defendant was 17 years-old at the time of the

offense.” However, we find nothing in the record to show that the circuit court specifically

considered defendant’s youth and its attendant characteristics, specifically those factors

articulated by our supreme court in Holman. See People v. Morris,

(concluding that circuit court’s consideration of the PSI was not “the equivalent to a full consideration of those special characteristics contained within the PSI report” particularly where

the court did not “weigh heavily defendant’s opportunity for rehabilitation”).

¶ 24 Following Buffer, we conclude that the court’s mere awareness of a defendant’s age and

consideration of a PSI does not provide evidence that the circuit court specifically considered

defendant’s youth and its attendant characteristics. See also Harvey,

. Therefore, we must conclude that defendant’s sentence violates the eighth amendment, and

we vacate that sentence as unconstitutional. Buffer,

, ¶ 42.

¶ 25 In so holding, we also note that the proper remedy in such circumstances is to remand

this matter for a new sentencing hearing. See id. ¶¶ 44-47 (“Based on the particular issue raised

in this appeal and in the interests of judicial economy, *** the proper remedy is to vacate

defendant’s sentence and to remand for a new sentencing hearing.”). Further, defendant shall be

entitled on remand to be sentenced under the scheme prescribed by section 5-4.5-105 of the Code

(730 ILCS 5/5-4.5-105 (West 2016)). Buffer,

, ¶ 47.

¶ 26 In light of our holding, we need not reach defendant’s alternative argument—that his

sentence violates the Illinois proportionate penalties clause. We therefore reverse the judgment

of the trial court, and remand the case for further proceedings consistent with this opinion.

Mandate to issue instanter.

¶ 27 Reversed and remanded. No. 1-17-0308

Cite as: People v. Peacock,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 95-CR- 26400(01); the Hon. Frank Zelezinski, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Manuela Hernandez, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

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