FIFTH DIVISION NOVEMBER 13, 2020

1-14-2330

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 01 CR 23489 ) SAMUEL APPLEWHITE, ) Honorable ) Clayton J. Crane, Defendant-Appellant. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Rochford concurred in the judgment and opinion.

OPINION

¶1 On May 23, 2014, the defendant-appellant, Samuel Applewhite, filed a pro se

postconviction petition in the circuit court of Cook County alleging that his 45-year sentence is

unconstitutional. Following the dismissal of his petition by the circuit court, the defendant

appealed. We affirmed that dismissal, and the defendant sought leave to appeal to the Illinois

Supreme Court. The Illinois Supreme Court then issued a supervisory order directing this court to

vacate our decision in which we affirmed the trial court’s dismissal of the defendant’s pro se

postconviction petition. Our supreme court expressly ordered us to reconsider our prior judgment

regarding the defendant’s postconviction petition in light of the supreme court’s ruling in People

v. Buffer,

. For the reasons that follow, upon reconsideration of our prior ruling,

we reverse the judgment of the circuit court of Cook County. No. 1-14-2330

¶2 BACKGROUND

¶3 In October 2001, the State charged the defendant with multiple counts of attempted first

degree murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2000)), aggravated battery with a firearm (id.

§ 12-4.2), and armed robbery (id. § 18-2(a)(2), (a)(3), (a)(4)). The indictment alleged that, on July

11, 2001, the defendant, who was 17 years old at the time, “shot Lamar Smith about the body” and

“took United States currency from the person or presence of Lamar Smith” (hereinafter referred

to as the Lamar Smith case).

¶4 The State also charged the defendant, in a separate case, with multiple counts of first degree

murder (id. § 9-1(a)(1), (a)(2), (a)(3)), attempted first degree murder (id. §§ 8-4, 9-1), armed

robbery (id. § 18-2(a)(2), (a)(3)), attempted armed robbery (id. §§ 8-4, 18-2(a)(4)), and aggravated

discharge of a firearm (id. § 24-1.2(a)(2)). These charges stemmed from a shooting incident that

occurred on August 19, 2001, in which the defendant shot and killed Marshall Young (hereinafter

referred to as the Marshall Young case).

¶5 On September 25, 2003, pursuant to a fully negotiated plea agreement, the defendant pled

guilty to one count of first degree murder of Marshall Young and one count of aggravated battery

with a firearm of Lamar Smith. The remaining counts were dismissed. Pursuant to the plea

agreement, the trial court imposed the mandatory minimum sentence of 45 years’ imprisonment

for first degree murder in the Marshall Young case. This sentence consisted of the minimum 20-

year sentence for murder (see 730 ILCS 5/5-8-1(a)(1)(a) (West 2002) (providing a range of 20 to

60 years)) plus a minimum 25-year mandatory firearm enhancement (see id. § 5-8-1(a)(1)(d)(iii)

(providing for an add-on of 25 years to natural life)). The trial court also sentenced the defendant

to 12 years’ imprisonment for aggravated battery with a firearm in the Lamar Smith case. See id.

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§ 5-8-1(a)(3) (providing a range of 6 to 30 years). The trial court ordered the sentences to run

concurrently.

¶6 The defendant did not move to withdraw his pleas or otherwise appeal from the judgment

entered on his convictions. However, on June 29, 2011, he filed a pro se petition for relief from

judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)).

In that petition, he alleged, inter alia, that his plea agreement and concurrent sentences were void

because consecutive sentences were required by section 5-8-4(a)(i) of the Unified Code of

Corrections (Code of Corrections) (730 ILCS 5/5-8-4(a)(i) (West 2002)). He argued that he should

be allowed to withdraw his guilty pleas and go to trial. The State agreed that consecutive sentences

were required by the Code of Corrections and conceded that the sentences were void. Nevertheless,

the State maintained that it could remedy the sentencing violation of the Code of Corrections by

dismissing the aggravated battery with a firearm charge, while leaving intact the guilty plea and

45-year sentence for first degree murder.

¶7 The trial court agreed with the State’s proposal. Thereafter, the court granted the State’s

request and vacated the defendant’s conviction for aggravated battery with a firearm in the Lamar

Smith case. The trial court then issued a revised mittimus reflecting a 45-year sentence for first

degree murder in the Marshall Young case. Except for that change, the court otherwise denied the

defendant’s petition. The defendant appealed, and this court affirmed the trial court’s ruling.

People v. Applewhite, No. 1-13-1549 (2014) (unpublished summary order under Illinois Supreme

Court Rule 23(c)).

¶8 Thereafter, the defendant filed the instant pro se postconviction petition challenging his

45-year sentence. In this petition, he alleged that the mandatory 25-year firearm enhancement, as

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applied to him, violates the eighth amendment (U.S. Const., amend. VIII) and the proportionate

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Specifically, his petition

contended that the mandatory minimum sentence for first degree murder and the mandatory

firearm enhancement, which resulted in his sentence of 45 years’ imprisonment, is unconstitutional

pursuant to the principles of sentencing juveniles announced in the United States Supreme Court’s

decisions in Miller v. Alabama,

(2012), Graham v. Florida,

(2010), and

Roper v. Simmons,

(2005).

¶9 On June 27, 2014, the trial court dismissed the defendant’s pro se postconviction petition

at the first stage, finding it “frivolous and patently without merit” because, unlike Miller, Graham,

and Roper, the defendant did not receive the “harshest possible penalty” of natural life

imprisonment.

¶ 10 The defendant appealed that ruling, and the Office of the State Appellate Defender (OSAD)

was appointed to represent him in his appeal. On December 9, 2016, this court affirmed the trial

court’s summary dismissal of the then pro se defendant’s postconviction petition. People v.

Applewhite,

. We held, inter alia, that the defendant’s 45-year

sentence was not unconstitutional because it was not a de facto life sentence. Id. ¶ 16.

¶ 11 The defendant, then represented by OSAD, filed a petition for leave to appeal to the Illinois

Supreme Court. On March 25, 2020, our supreme court issued a supervisory order directing us to

vacate our judgment entered on December 9, 2016, and reconsider the issues in the case in light of

the supreme court’s ruling in Buffer,

. Specifically, we were instructed to consider

the issue of whether the defendant’s 45-year sentence constitutes a de facto life sentence in

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violation of the eighth amendment. Following the vacatur of our judgment, we allowed both the

defendant and the State to submit supplemental briefs. 1 We now reconsider our judgment.

¶ 12 ANALYSIS

¶ 13 We note that we have jurisdiction to consider this matter, as the defendant filed a timely

notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. July 1, 2017).

¶ 14 We now determine the following issue: whether the defendant’s 45-year sentence is an

unconstitutional de facto life sentence such that the trial court erred in dismissing the defendant’s

postconviction petition.

¶ 15 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) provides

a method by which convicted persons under a criminal sentence, can assert that their constitutional

rights were violated. People v. Hodges,

(2009). The Act allows for a petition to be

considered in three stages.

. This case falls within the first stage of the process under the

Act. During the first stage, the trial court must assess the petition, taking the allegations as true,

and determine if the petition is frivolous or is patently without merit.

Our review of a first-stage

dismissal is de novo.

.

¶ 16 The crux of the defendant’s postconviction petition is that his sentence is a de facto life

sentence in violation of the eighth amendment of the United States Constitution. “The Eighth

Amendment’s prohibition of cruel and unusual punishment ‘guarantees individuals the right not

to be subjected to excessive sanctions.’ ” Miller,

(quoting Roper,

).

The United States Supreme Court in Miller held that mandatory life sentences without the

possibility of parole, imposed upon juvenile defendants, are unconstitutional under the eighth

1 We note that the defendant is still represented by OSAD.

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amendment because such sentences prevent the trial court from considering the mitigating qualities

of youth, such as the defendant’s age, background, and mental and emotional development. Id. at

476, 489.

¶ 17 The Illinois Supreme Court has interpreted Miller in a manner applicable to juvenile

defendants convicted and sentenced under Illinois law. Under that interpretation, our supreme

court has determined that a life sentence, whether natural or de facto, whether mandatory or

discretionary, is unconstitutional for juveniles where the trial court did not consider the mitigating

qualities of youth described in Miller. See People v. Reyes,

(“sentencing a

juvenile offender to a mandatory term of years that is the functional equivalent of life without the

possibility of parole constitutes cruel and unusual punishment in violation of the eighth

amendment”); People v. Holman,

(life sentences, whether mandatory or

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

unless the trial court considers the defendant’s youth and its attendant characteristics). After our

supreme court’s rulings in Reyes and Holman, the Illinois Appellate Court in various districts

throughout the state, received an increasing number of appeals from defendants convicted of

crimes committed when they were juveniles who were now seeking relief from their sentences

pursuant to Reyes and Holman. There was no clear consensus among the various districts of the

appellate court regarding the number of years that constituted a de facto life sentence for

individuals who were sentenced for crimes committed when they were juveniles.

¶ 18 The lack of consensus regarding a precise number of years that must be imposed in order

to constitute a de facto life sentence led to inconsistency on this issue in the rulings of the Illinois

Appellate Court. Our supreme court recently addressed the issue of de facto life sentences for

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juveniles in Buffer,

. It is for that reason, that the supreme court ordered us to

reconsider our prior ruling in this case. In Buffer, the supreme court determined “to draw [the] line

at 40 years” for a prison term to be considered a de facto life sentence. Id. ¶ 40. Specifically, the

court held that “a prison sentence of 40 years or less imposed on a juvenile offender provides some

meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

(Internal quotation marks omitted.) Id. ¶ 41.

¶ 19 In the instant case, the State agrees with the defendant that, in light of Buffer, the

defendant’s 45-year sentence is a de facto life sentence. Under the holding in Buffer, this violates

the eighth amendment of the United States Constitution. The State agrees that the trial court did

not have the occasion to consider the defendant’s youth and the attendant characteristics outlined

in Miller and its progeny, when the court imposed the defendant’s sentence, as our supreme court

had not yet amplified those principles as it later did in Buffer. Consequently, the State agrees with

the defendant that the trial court’s judgment summarily dismissing the defendant’s postconviction

petition should be reversed. The State also agrees that the defendant did not waive his right to

challenge the constitutionality of his sentence notwithstanding that he entered a negotiated guilty

plea. See Class v. United States,

, ___,

(2018) (a guilty plea

does not bar a constitutional claim on appeal where, on the face of the record, the court had no

power to impose the sentence); see also People v. Patterson,

(the

defendant’s guilty plea did not bar his constitutional claim where his claim did not contradict the

terms of the indictment or his plea agreement but instead challenged the State’s power to

constitutionally prosecute him).

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¶ 20 Further, both the State and the defendant request that we remand this case to the trial court

for resentencing instead of ordering a second-stage postconviction hearing. We agree. In the

interest of judicial economy and reaching a reasonable resolution, vacating the defendant’s 45-

year sentence and remanding the case to the trial court for a new sentencing hearing is the

appropriate remedy. In Buffer, our supreme court noted that “[w]here the first-stage summary

dismissal of a postconviction petition is reversed on appeal, the usual remedy is to remand for the

advancement of the postconviction proceedings to the second stage.” Buffer,

.

However, the court went on to explain that, where the trial court sentenced the juvenile defendant

to a de facto life sentence without considering his youth and its attendant characteristics, no further

factual development was needed to remedy that issue, as “the facts and circumstances to decide

[the] defendant’s claim [was] already in the record.” Id. ¶ 46. Accordingly, in Buffer, the supreme

court vacated the defendant’s sentence and remanded the case to the trial court for a new sentencing

hearing. Id. ¶ 47. That reasoning and procedural resolution is applicable to the instant case.

¶ 21 Although the instant case involves a guilty plea while Buffer did not, that is a distinction

without a difference for purposes of the guiding principles articulated by the supreme court in

sentencing juveniles such as the defendant in this case. The pertinent facts and the substantive

issue before us in this case are analogous to Buffer, i.e., a juvenile defendant who received a

de facto life sentence in violation of the eighth amendment of the United States Constitution. Also,

as in Buffer, no further factual development is needed in this case as the facts needed to impose a

constitutional sentence are already in the record. The defendant is therefore entitled to a new

sentencing hearing in which the trial court can consider his youth and its attendant characteristics

at the time of the crime in imposing a new sentence.

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¶ 22 Accordingly, for the reasons discussed, we reverse the trial court’s judgment dismissing

the defendant’s first stage postconviction petition. We further vacate the defendant’s 45-year

sentence and remand the case to the trial court for resentencing.

¶ 23 CONCLUSION

¶ 24 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County,

vacate the defendant’s 45-year sentence, and remand the case for a new sentencing hearing

consistent with this opinion.

¶ 25 Reversed and remanded.

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No. 1-14-2330

Cite as: People v. Applewhite,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 01-CR-23489; the Hon. Clayton J. Crane, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Elena B. Penick, of State for Appellate Defender’s Office, of Elgin, for appellant. Appellant:

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

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