No. 1-17-2268 Order filed August 13, 2020 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 96 CR 01838 ) NICHOLAS MORFIN, ) Honorable ) Arthur Hill, Defendant-Appellant. ) Judge Presiding.

JUSTICE BURKE delivered the judgment of the court. Presiding Justice Gordon and Justice Reyes concurred in the judgment.

ORDER

¶1 Held: We reverse and remand for resentencing where defendant’s 52-year sentence for an offense committed when he was a juvenile violates the eighth amendment where the sentencing court failed to sufficiently consider defendant’s youth and its attendant characteristics and his potential for rehabilitation, regardless of his eligibility for day-for-day good conduct credit.

¶2 Defendant Nicholas Morfin was convicted, on the basis of accountability, of two counts of

first degree murder in the shooting deaths of two 13-year-old victims, Carrie Hovel and Helena

Martin, in 1995. The offenses were committed when defendant was 17 years old. The trial court No. 1-17-2268

sentenced defendant to a term of natural life imprisonment, as mandated by statute. In 2010,

defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Code

of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). The circuit court denied his petition

and his subsequent motion to reconsider and defendant appealed. While defendant’s cause was

pending on appeal, the United States Supreme Court issued its decision in Miller v. Alabama,

(2012). Defendant argued that his sentence of natural life was unconstitutional in light of

Miller. People v. Morfin,

. This court agreed and found that defendant

was entitled to a new sentencing hearing in light of Miller. Id. ¶ 59. On remand, the circuit court

resentenced defendant to two concurrent terms of 52 years’ imprisonment “at 50 percent.”. On

appeal, defendant contends that he is entitled to a new sentencing hearing where his 52-year

sentence represents an unconstitutional de facto life sentence in violation of Miller and the Illinois

supreme court’s recent decision in People v. Buffer,

. For the following reasons,

we reverse the circuit court’s ruling, vacate defendant’s sentence, and remand for a new sentencing

hearing.

¶3 I. BACKGROUND

¶4 A. Jury Trial

¶5 A full recitation of the facts of defendant’s trial can be found in this court’s order on

defendant’s direct appeal. People v. Anderson and Morfin, Nos. 1-98-2438 & 1-98-2390 (cons.)

(2000) (unpublished order under Supreme Court Rule 23). As relevant here, defendant was charged

under a theory of accountability for the shooting deaths of Hovel and Martin. Defendant was

charged along with four other individuals: Eric Anderson, William Bigeck, Edward Morfin

(Edward), and Nicholas Liberto. Bigeck and Edward, who were both over 18 years old at the time

of the offense, pleaded guilty in exchange for their testimony at defendant’s and Anderson’s trials.

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Liberto was tried separately. Defendant and Anderson, who was 15 years old at the time of the

shooting, were charged together, but were tried at separate jury trials. Wayne Antusas and Matt

Sopron, who were also involved in the shooting, were subsequently indicted and tried in a joint

bench trial. Both were sentenced to terms of mandatory life imprisonment. People v. Sopron and

Antusas, Nos. 1-98-1890 & 1-98-1957 (cons.) (2001) (unpublished order under Supreme Court

Rule 23).

¶6 At defendant’s trial, the State presented evidence showing that Anderson, Bigeck, and

defendant were all members of the Almighty Popes street gang. On the day of the shooting,

Anderson and Bigeck stole two revolvers from the home of a police officer and brought them to

defendant’s home. Defendant and Anderson tested the guns by firing them in the basement.

Defendant then hid one of the guns in his bedroom. Later that day, Anderson, Bigeck, and

defendant met with the leaders of the Almighty Popes who ordered them to attack members of a

rival gang who had been in Almighty Popes’ territory. The gang leaders ordered Anderson to do

the shooting and ordered defendant to wipe the fingerprints and serial numbers off of the stolen

guns. Later that evening, Anderson, Edward, and Bigeck walked up to a van that they associated

with the rival gang and Anderson fired several shots at the van, fatally wounding Hovel and Martin.

Defendant was supposed to provide a ride for Anderson and the others after the shooting, but

defendant did not show up.

¶7 After the shooting, defendant took police officers who were investigating the shooting to

his home and signed a consent to search form. He showed the officers one of the two stolen

revolvers that he had hidden in his bedroom. Later that morning, defendant spoke to Edward

through the wall in their adjacent interview rooms at the police station. After their conversation,

Edward agreed to cooperate with the police and led them to the second stolen revolver that was

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the murder weapon. The jury found defendant guilty of the first degree murders of Hovel and

Martin. Following a sentencing hearing, the circuit court sentenced defendant to two concurrent

terms of natural life imprisonment.

¶8 B. Direct Appeal and Post-Judgment Pleadings

¶9 This court affirmed defendant’s convictions and sentence on direct appeal People v.

Anderson and Morfin, Nos. 1-98-2438 & 1-98-2390 (cons.) (2000) (unpublished order under

Supreme Court Rule 23). In September 2005, defendant filed, through counsel, a “Motion to

Vacate Void and Unconstitutional Judgment.” Defendant asserted, citing the supreme court’s then-

recent decision in People v. Leon Miller,

(2002) (Leon Miller), that the statute

mandating a sentence of natural life imprisonment was unconstitutional. The court granted the

State’s motion to dismiss, finding that defendant’s claims were barred by res judicata and that

Leon Miller held that the statute at issue in that case was unconstitutional as applied to defendant

Leon Miller, but the court found that different circumstances required a different result in this case.

This court affirmed the circuit court’s dismissal on appeal. People v. Morfin, No. 1-06-0945 (2007)

(unpublished order under Supreme Court Rule 23).

¶ 10 In July 2010, defendant filed a petition pursuant to section 2-1401(f) of the Code. 735 ILCS

5/2-1401(f) (West 2008). Defendant contended that “the court had no authority to extend his

sentence to natural life imprisonment because (1) it had no authority to find him guilty of more

than one murder as there was no evidence of his intent to kill more than one person, and (2) his

conviction was on an accountability basis.” Morfin,

. The circuit

court dismissed the petition, finding that defendant failed to present new evidence and that the

State was not required to prove defendant’s intent to kill more than one person to sustain the

convictions. Id. ¶ 21.

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¶ 11 While defendant’s case was pending before this court on appeal, the Supreme Court issued

its decision in Miller, which held that the eighth amendment prohibited mandatory sentences of

life imprisonment without the possibility of parole for offenders who were minors at the time of

the offense. Id. ¶ 25. This court determined that Miller applied retroactively to defendant’s

sentence and remanded the cause for resentencing. Id. ¶¶ 56, 59. This court found that on remand,

the circuit court “may sentence a defendant convicted of first degree murder committed as a minor

to a prison term of 20 to 60 years, up to 100 years where an appropriate extended-term finding has

been made, or to natural life imprisonment.” Id. ¶ 59.

¶ 12 C. Defendant’s Resentencing Hearing

¶ 13 On remand, defendant filed, through counsel, a presentencing memorandum. In his

memorandum, defendant contended that the sentencing range in this case was a “term of not less

than 20 years and not more than 60 years” based on section 5-8-1(a)(1)(a) of the Criminal Code as

it read when defendant was sentenced. 730 ILCS 5/5-8-1(a)(1)(a) (West 1994). The memorandum

also highlighted that defendant did not have any criminal history, and did not have any “serious

tickets or violations” in the two decades he had been in custody at the Illinois Department of

Corrections (IDOC). Defendant further asserted that he had actively participated in programs at

the Cook County Jail and completed mentor and educational programs. Defendant also authored

and self-published a book educating parents and juveniles about the dangers of gang involvement.

¶ 14 At defendant’s resentencing hearing, the State presented in aggravation victim impact

statements from Hovel’s grandparents and her mother and stepfather. The State also argued that

defendant was heavily involved in the shootings, identifying the van with the victims and hosting

the target practice in his basement. The State noted that it was important for the court to consider

defendant’s conduct since he had been incarcerated. The State asserted that defendant did not start

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to take classes and write his book until after Miller was decided and he had an opportunity to be

released from prison.

¶ 15 In mitigation, defendant primarily relied on the contents of his presentence memorandum,

which included letters from friends and family on his behalf, excerpts from his book, and

certificates and grades from the courses he took in IDOC. Defense counsel asserted that defendant

was not able to take advantage of the courses offered by the IDOC before the Supreme Court’s

ruling in Miller because those resources were reserved for offenders who had a “determinate

sentence.” Defense counsel argued that defendant’s age at the time of his offense, his lack of

criminal history, and his conduct in the IDOC warranted a sentence at the lower end of the

sentencing range. Defendant then gave a lengthy statement in allocution where he apologized to

the victims’ families and explained that he acted out of fear of his fellow gang members.

¶ 16 The parties stipulated to the testimony of Chicago police detective James O’Brien from

Anderson’s resentencing hearing regarding the investigation into the shooting and defendant’s

subsequent arrest.

¶ 17 In resentencing defendant, the circuit court recounted the trial evidence and noted the

changes in the law since defendant had first been sentenced. The court noted that “for the longest

time, every offense was 50 percent, meaning whatever sentence you got, if you’re good every day,

then you could complete your sentence in half the time.” The court noted that the truth in

sentencing statute changed the law for some offenses and murder. The court mentioned the United

States Supreme Court’s ruling in Miller and noted the “whole slew of cases” that resulted in

resentencing because of Miller and its progeny.

¶ 18 The court noted that based on this precedent, it could not sentence defendant to a term of

natural life imprisonment “even if I wanted to.” The court found that the sentencing scale “reverts

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back to the old law” with a range of “20 years minimum to 60 years maximum at 50 percent.” The

court stated that in determining defendant’s sentence, it considered the victim impact statements,

the facts of the case, the arguments in aggravation, defendant’s mitigation packet, the presentence

investigation report, and defendant’s statement in allocution. The court stated that it was “mindful

of the context in which [defendant’s] participation and his rehabilitation played in this

circumstance.” The court determined that the appropriate sentence was 52 years’ imprisonment,

“that will be at 50 percent.” The court subsequently denied defendant’s motion to reconsider his

sentence. This appeal follows.

¶ 19 II. ANALYSIS

¶ 20 On appeal, defendant contends that his 52-year sentence for an offense he committed when

he was 17 years old violates the proportionate penalties clause of the Illinois Constitution (Ill.

Const. 1970, art. I. § 11) and the eighth amendment of the United States Constitution (U.S. Const.,

amend. VIII). Defendant asserts that he was convicted under a theory of accountability and that

since he was resentenced in 2017, the Illinois supreme court has issued its decision in Buffer,

finding that a sentence of more than 40 years for a juvenile is considered a de facto life sentence

under Miller and its progeny. Defendant contends that his de facto life sentence is unconstitutional

where the resentencing court did not find that he was permanently incorrigible and where the court

failed to adequately consider his youth and its attendant characteristics. In the alternative,

defendant contends that his sentence is excessive where the court did not give adequate weight to

his rehabilitative potential and his youth.

¶ 21 A. Miller and its Progeny

¶ 22 In Miller, the Supreme Court held that sentences of “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition

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on ‘cruel and unusual punishments.’ ” Miller,

. The Court based this decision on

the rationale that minors are constitutionally different from adults for purposes of sentencing, as

they are less mature and responsible, more impulsive, and more vulnerable to peer pressure than

adults.

. As such, the Court concluded that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole for juvenile

offenders.”

. The Court did not prohibit life sentences for juveniles in all circumstances,

but required that a judge or jury to have the opportunity to consider mitigating circumstances

before imposing “the harshest possible penalty” for juveniles.

The mitigating circumstances

include the juvenile’s age, and its “hallmark features,” and the juvenile’s possibility for

rehabilitation.

.

¶ 23 The Supreme Court expanded on its decision in Miller in Montgomery v. Louisiana,

,

(2016). In Montgomery, the Court determined that Miller should apply

retroactively and that state courts must apply Miller in collateral proceedings.

at ___,

. The Court further found that Miller did not prohibit all life sentences for juveniles, but

reserved life sentences for “the rare juvenile offender whose crime reflects irreparable corruption.”

(Internal quotation marks omitted.)

at ___,

. Throughout the decision, the court

repeatedly stated that the decision in Miller applied only to juvenile offenders sentenced to

“mandatory life without parole.”

at ___,

.

¶ 24 In People v. Reyes,

, our supreme court expanded the holding of Miller,

finding that Miller applied to so-called “de facto” life sentences for juveniles. The supreme court

found that such sentences violate Miller where the sentence is so long that it “amounts to the

functional equivalent of life.” Id. ¶ 9. Recently, in People v. Buffer,

, our

supreme court determined that a prison term of 40 years or more is considered a de facto life

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sentence under Miller. Further, in People v. Holman,

, the supreme court

applied Miller to discretionary life sentences finding that “[l]ife sentences, whether mandatory or

discretionary, for juvenile defendants are disproportionate and violate the eighth amendment,

unless the trial court considers youth and its attendant characteristics.” The Holman court held that

“a juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial

court determines that the defendant’s conduct showed irretrievable depravity, permanent

incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Id. ¶ 46.

¶ 25 The Holman court set forth a variety of factors a sentencing court should consider in

determining whether to sentence defendant to a term of life imprisonment, or de facto life

imprisonment, without parole:

“(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.” Id. See also 730

ILCS 5/5-4.5-105(a) (West 2016) (codifying these factors).

¶ 26 Citing Miller, and the supreme court’s recent decision in Buffer, defendant asserts that his

52-year sentence represents a de facto life sentence that the resentencing court entered without

considering the factors outlined in Holman and section 5-4.5-105(a) of the Unified Code of

Corrections (730 ILCS 5/5-4.5-105(a) (West 2016)). Defendant maintains that his sentence

therefore violates the proportionate penalties clause and the eighth amendment where the

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resentencing court did not implicitly or explicitly find that defendant was “irretrievably depraved,

permanently incorrigible, or beyond the possibility of rehabilitation” prior to entering the sentence.

We agree.

¶ 27 A review of the resentencing hearing shows that in resentencing defendant, the court

primarily focused on the facts of the case. The court noted defendant’s participation in the shooting

practice in the basement of his home and his involvement in the planning of the shooting. The

court stated that it considered the materials in defendant’s mitigation packet and defendant’s

presentence investigation report, but the court did not comment on the factors detailed in the

Holman or section 5-4.5-105(a). Although the court was aware of defendant’s age at the time of

the offense, it did not discuss whether there was evidence of defendant’s “particular immaturity,

impetuosity, and failure to appreciate risks and consequences” or his “incompetence” and only

vaguely commented on defendant’s “prospects for rehabilitation.” Holman,

;

see, e.g., People v. Daniel,

(“[T]he record indicates that the trial

court focused on the severity of the crime and the age of the victim. The court also mentioned

defendant’s youth. We find nothing in the record to show that the trial court specifically considered

defendant’s youth and attendant circumstances before sentencing him to a de facto life sentence.”).

¶ 28 The State asserts that the record shows that the court reviewed defendant’s mitigation

packet and was aware of defendant’s age at the time of the offense, but in its discretion determined

that the seriousness of the offense outweighed the factors presented in mitigation, including

defendant’s youth and his potential for rehabilitation. Despite these comments by the court, “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.” People v. Peacock,

, appeal filed, Nov. 1, 2019; see also,

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People v. Morris,

(finding that although the court commented on

defendant’s youth and upbringing and acknowledged that it read the PSI, the court’s observations

were not “equivalent to a full consideration of those special characteristics contained within the

PSI report” and did not reflect that “the trial court carefully considered defendant’s youthful

characteristics against those aggravating factors before coming to the ultimate conclusion that

defendant is ‘the rarest of juvenile offenders *** whose crimes reflect permanent incorrigibility,’

rather than a reflection of his ‘unfortunate yet transient immaturity.’ ” (quoting Montgomery, 577

U.S. at ___,

); People v. Zachary Reyes, 2020 IL App (2d), 180237, ¶¶ 31-32

(finding that although the record showed that the trial court stated that it considered the Miller

factors at the juvenile defendant’s sentencing hearing and specifically noted the defendant’s age

before sentencing him to a de facto life sentence, the “trial court never commented on the

defendant’s immaturity, impetuosity, or ability to understand risks and consequences *** and did

not specifically address whether the defendant was too young or too immature to resist the negative

influences surrounding him at the time, or whether he was mature enough to maintain control over

his actions.”).

¶ 29 As such, although the record reflects that the circuit court did consider some characteristics

of defendant’s youth before imposing his sentence, under Holman, its consideration was

insufficient to support the imposition of a de facto life sentence. See Daniel,

, Peacock,

; see also, People v. Thornton,

(“[W]e find nothing in the record to show that the circuit court specifically

considered the defendant’s youth and its attendant circumstances, such as the factors articulated in

Holman, when fashioning his sentence.”).

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¶ 30 The State maintains, however, that defendant’s 52-year sentence was not a de facto life

sentence because he was sentenced before “truth-in-sentencing,” which requires those convicted

of first degree murder after June 1998 to serve 100% of their imposed sentences. See 730 ILCS

5/3-6-3(a)(2)(i) (West 1998). Rather, as the trial court recognized, because defendant was

originally sentenced before June 1998, he is entitled to day-for-day good conduct credit. See 730

ILCS 5/3-6-3(a)(2) (West 1996) (the prisoner “shall receive one day of good conduct credit for

each day of service in prison other than where a sentence of ‘natural life’ has been imposed. Each

day of good conduct credit shall reduce by one day the inmate’s period of incarceration set by the

court.”). As such, the State asserts that defendant’s 52-year sentence is in reality only a 26-year

sentence because defendant is eligible for day-for-day good conduct credit. Indeed, the State points

out that IDOC records indicate that defendant is scheduled for release in July 2021, 26 years after

he was originally taken into custody. 1

¶ 31 This court has considered and rejected such arguments in three recent decisions. First, in

Peacock,

, the juvenile defendant was sentenced to 80 years’

imprisonment. As in this case, defendant Peacock was originally sentenced before the truth-in-

sentencing statute went into effect and thus was entitled to day-for-day good conduct credit against

his 80-year sentence.

The State argued, as it does here, that defendant was “likely” to serve

only 40 years’ imprisonment, rather than 80, which would not constitute a de facto life sentence

under Buffer. Id. ¶ 4. This court rejected the State’s argument, finding that the availability of

statutory sentencing credit is irrelevant to the determination of whether a defendant has been

sentenced to a de facto life sentence. Id. ¶ 19. The Peacock court explained:

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

.

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“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 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.’ [Citations]. 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. [Citation]. Accordingly, we

conclude that defendant’s 80-year sentence, for which he may receive day-for-day credit,

constitutes a de facto life sentence.”

¶ 32 Following Peacock, in Thornton,

, this court once again

rejected the State’s argument that a juvenile defendant’s sentence was not a de facto life sentence

because he was eligible to receive day-for-day good conduct credit and would “likely” serve a

sentence of only 35 years, rather than the 70-year term imposed by the circuit court. Citing

Peacock, this court found that day-for-day credit is not guaranteed and that it is the IDOC, not the

circuit court, that has the ultimate discretion as to whether the defendant will be awarded any

credit.

(citing Peacock,

). The Thornton court concluded that

the State’s “assurances” that defendant would earn sufficient good conduct credit to be released

from prison in 35 years, were not enough for the court to “consider defendant’s sentence as

anything other than a 70-year term.” Thornton,

.

¶ 33 While the case at bar was pending on appeal, another panel of this court issued its decision

in Daniel, 2020 IL App 172267. As in Peacock and Thornton, the State argued that defendant

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Daniel’s 70-year sentence was not a de facto life sentence because he had the opportunity to be

released after 35 years’ imprisonment based on his eligibility for day-for-day good conduct credit.

Id. ¶¶ 14, 15. Relying on Peacock and Thornton, this court found that although the defendant was

eligible for day-for-day credit that would likely reduce his time served to 35 years, his 70-year

sentence was nonetheless a de facto life sentence under Buffer. Id. ¶ 26.

¶ 34 We find the same result is warranted here. In this case, defendant was sentenced to a term

of imprisonment of 52 years. Defendant was not sentenced to a term of 26 years. Although he may

only be required to serve 26 years’ imprisonment because of his eligibility for day-for-day good

conduct credit, the decisions in Peacock, Thornton, and Daniel are clear that our concern is the

term actually imposed by the circuit court, not the procedures employed by IDOC. Although the

record shows that the resentencing court was aware of defendant’s eligibility for day-for-day good

conduct credit, as the Peacock court explained:

“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.’ [Citations]. 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. [Citation].” Peacock,

.

¶ 35 As such, we find that defendant’s 52-year sentence for an offense he committed when he

was a juvenile represents a de facto life sentence. We must therefore conclude that defendant’s

sentence violates the eighth amendment and we vacate that sentence as unconstitutional. See

Peacock,

; Thornton,

. Although

defendant requests that this court reduce his sentence to “time served,” based on his expected

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release date in July 2021, we find that the appropriate remedy in this case is to remand for a new

sentencing hearing where defendant will be entitled to be sentenced under the scheme prescribed

by section 5-4.5-105 of the Unified Code of Corrections. 735 ILCS 5/5-4.5-105 (West 2016). See,

e.g., Thornton,

(citing Buffer,

).

¶ 36 Because we find that defendant’s sentence is unconstitutional and vacate it on that basis,

we need not address defendant’s contention that his sentence is excessive.

¶ 37 III. CONCLUSION

¶ 38 For the reasons stated, we vacate defendant’s 52-year sentence, and remand the cause for

resentencing consistent with this decision.

¶ 39 Sentence vacated and cause remanded for resentencing, with directions.

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