SIXTH DIVISION September 25, 2020

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) No. 98 CR 11748 (01) ) SAMUEL QUEZADA, ) ) Honorable Paula M. Daleo Defendant-Appellant. ) Judge Presiding

JUSTICE GRIFFIN delivered the judgment of the court, with opinion. Justices Pierce and Walker concurred in the judgment and opinion.

OPINION

¶2 This appeal concerns the application of our supreme court’s decision in People v. Buffer,

in which the court held that, under most circumstances, a prison sentence of more than 40 years

imposed on a juvenile offender constitutes a de facto life sentence in violation of the eighth

amendment. People v. Buffer,

. The defendant in this case was a minor

at the time he committed the offense at issue here and he was sentenced to 68 years in prison.

However, defendant’s sentence is such that he is set to receive day-for-day credit, meaning that

he is scheduled to only serve 50% of his sentence, or 34 years, in prison.

¶3 The State argues that, because defendant will receive day-for-day credit, his sentence

does not run afoul of Buffer, and it urges us to affirm his sentence. We reject the State’s No. 1-17-0532

argument. We find that defendant’s sentence is at odds with the letter and spirit of Buffer, so we

vacate his sentence and remand the case for a new sentencing hearing.

¶4 I. BACKGROUND

¶5 Defendant Samuel Quezada was the shooter in a drive-by shooting that killed Robert

Delosantos and injured Edward Puente. The shooting was gang related. Defendant was 15 years

old when he committed the crimes. Defendant pled guilty to one count of first-degree murder and

one count of attempted murder. He was sentenced to 50 years in prison for the murder and 18

years in prison for the attempted murder, with the sentences to run consecutively. The trial court

noted in sentencing defendant that his sentence was to be served with day-for-day credit.

¶6 In November 2016, defendant filed a postconviction petition. In his petition, defendant

argued that his 68-year sentence constituted a de facto life sentence that was unconstitutional

under Miller v. Alabama,

(2012) and Montgomery v. Louisiana,

(2016). The circuit court summarily dismissed his petition.

¶7 Defendant appealed the summary dismissal of his postconviction petition. Initially, the

Office of the State Appellate Defender moved to withdraw under Pennsylvania v. Finley,

(1987), finding that the contentions in defendant’s appeal lacked merit. We granted

counsel’s motion to withdraw, and we affirmed the circuit court’s judgment dismissing

defendant’s postconviction petition.

¶8 Defendant filed a petition for rehearing. Just around the time that counsel had filed its

motion to withdraw under Finley, our supreme court announced its decision in People v. Buffer,

. In Buffer, the supreme court held that, under most circumstances, a prison

sentence of more than 40 years imposed on a juvenile offender constitutes a de facto life

sentence in violation of the eighth amendment. Buffer,

.

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¶9 We granted defendant’s petition for rehearing. In our order granting rehearing, we

vacated the order granting counsel’s motion to withdraw under Finley, and we directed defendant

to address the issues in this case insofar as they were affected by the supreme court’s intervening

judgment in Buffer. The parties briefed the issues, and their contentions are now before us for

determination.

¶ 10 II. ANALYSIS

¶ 11 Defendant raised the issue of the constitutionality of his sentence in a postconviction

petition. The trial court dismissed the petition at the first stage, albeit before our supreme court

decided Buffer. The Post-Conviction Hearing Act (725 ILCS 5/122–1 et seq.) provides a process

by which a criminal defendant may challenge his or her conviction by filing a petition in the

circuit court. 725 ILCS 5/122–1 (West 2018). The Act provides for a three-stage process for

adjudicating postconviction petitions. People v. Harris,

(2007). At

the first stage, the court independently assesses the merit of the petition. 725 ILCS 5/122–2.1

(West 2012). If the court finds the petition to be “frivolous” or “patently without merit,” the

court shall dismiss the petition. 725 ILCS 5/122.1(a)(2) (West 2012). A postconviction petition is

considered frivolous or patently without merit only if the allegations in the petition, taken as true

and liberally construed, fail to present the “gist” of a constitutional claim. People v. Edwards,

(2001). We review the dismissal of a postconviction petition at the first

stage de novo. People v. Boyd,

(2004).

¶ 12 Defendant’s position is that his 68-year sentence is unconstitutional under People v.

Buffer,

. In Buffer, the Illinois Supreme Court held that, under most

circumstances, prison sentences imposed on defendants for crimes committed as juveniles that

are for a period longer than 40 years are unconstitutional. Buffer,

. In

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response to defendant’s argument, the State argues that defendant’s sentence does not exceed the

bounds set forth in Buffer because defendant is entitled to receive day-for-day credit on his

sentence. Thus, the State contends, defendant’s sentence really only imposes 34 years in prison

because defendant is only required to serve out 50% of his 68-year sentence when his day-for-

day credit is considered.

¶ 13 We considered the same arguments raised by the parties here in People v. Peacock,

. In Peacock, we held that an 80-year sentence that included day-for-

day credit was a de facto life sentence that could not stand in light of Buffer. Peacock,

(pet. for leave to appeal pending, No. 125340 (filed Oct. 4, 2019)). The

parties in this case acknowledge the applicability of Peacock: defendant urges us to follow it;

and the State argues that it was wrongly decided.

¶ 14 We decline to depart from our holding in Peacock. We agree with the rationale expressed

in our opinion in that case that we should not consider day-for-day credit in determining whether

a sentence is a de facto life sentence because day-for-day credit is a function of the Illinois

Department of Corrections, not the judiciary.

As defendant states in his brief, “[b]ecause the

application of day-for-day credit is dependent on [the] IDOC and not the actions of the trial

court, any consideration of whether Quezada's sentence constitutes a de facto life sentence

should be based on the sentence actually imposed by the trial court, and not the number of years

he might serve if he is awarded all potential credit.”

¶ 15 The State argues that Peacock was wrongly decided because it overlooked the fact that

Miller and the cases applying its precepts are concerned only with sentences that constitute life

imprisonment without the possibility of parole. The State points out that Miller and Buffer

prohibit life imprisonment (or its functional equivalent) without providing the offender a

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meaningful opportunity at rehabilitation. The State contends that the opportunity to receive day-

for-day credit is just the type of opportunity for the offender to demonstrate rehabilitation that

Miller and Buffer contemplated. The State further contends that the “opportunity for release”

from prison contemplated by the availability of day-for-day credit is consistent with our supreme

court’s decision in Buffer and with the United States Supreme Court’s decision in Montgomery v.

Louisiana,

(2016).

¶ 16 The State’s argument is well reasoned. However, the fact stands that the judicially

imposed sentence in this case is 68 years. The possibility that defendant will serve only 34 of

those 68 years in prison is beyond the control of the judiciary and is instead within the sole

discretion of the Illinois Department of Corrections. See People v. Castano,

(2009).

¶ 17 Were we to adopt the State’s argument, we would be leaving it up to the IDOC as to

whether defendant serves an unconstitutional de facto life sentence. As we recognized in

Castano, “the trial court does not control the manner in which good-conduct credit is earned and

lost by a prisoner.”

. The Unified Code of Corrections (730 ILCS 5/1-1-1 et seq.) tasks

the Illinois Department of Corrections, not the trial court, with prescribing the rules and

regulations for awarding and revoking sentencing credit. 730 ILCS 5/3-6-3 (West 2018). The

Director of the Department of Corrections has the “sole discretion” to determine whether an

inmate receives sentencing credit and in what amount. Lee v. Godinez,

. As such, we conclude, like we did in Peacock, that the judicially imposed sentence

cannot exceed the bounds of Buffer, irrespective of the availability of sentencing credit. With this

result, we take the matter out of the hands of the IDOC and ensure that the defendant does not

serve a sentence that is incompatible with our supreme court’s pronouncements in Buffer.

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¶ 18 In the State’s brief, it repeatedly states that defendant is “expected to serve” only 34

years, so he has not been issued a de facto life sentence. That language is demonstrative of the

problem with allowing a defendant to have a prison sentence in which he is at the mercy of the

Department of Corrections in regard to whether he serves an unconstitutional de facto life

sentence. We decline to let an otherwise unconstitutional sentence stand based on an expectation

that the defendant will be released sooner. There are no serious ramifications in applying

Peacock. All that its holding demands is that the trial court resentence the defendant in a manner

that complies with Buffer and does not rely on the IDOC’s discretion in order to avoid a conflict

with the supreme court’s judgment.

¶ 19 Another issue presented on appeal is that, even under Buffer, de facto life sentences for

juveniles can stand in those situations where the sentencing court adequately considers the

offender’s youth and makes a finding that the offender’s conduct showed irretrievable depravity,

permanent incorrigibility, or irreparable corruption beyond the possibility for rehabilitation.

People v. Jackson,

. Thus, we must determine whether

defendant’s sentence can stand regardless of the fact that it meets the definition of a de facto life

sentence under Buffer.

¶ 20 A review of the record demonstrates that the sentencing court did not sufficiently

consider defendant’s youth or make the other irreparability finding that would allow for

defendant to be permissibly subject to a de facto life sentence. In sentencing defendant, the court

certainly took note that defendant was “young” when he committed the offense, but the court did

not thoroughly look at defendant’s youth in a way that would be tantamount to a consideration of

the factors set forth in Miller. See People v. Holman,

. Similarly, while the

court certainly took note of the senselessness of the killing and noted that defendant’s conduct

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was “outrageous, murderous, and cannot be tolerated in *** any civil society,” the sentencing

court did not necessarily find that defendant exhibited “irretrievable depravity, permanent

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

Accordingly, we find that defendant’s de facto life sentence, as defined in Buffer, cannot stand

based upon the considerations of his original sentencing hearing.

¶ 21 Because we find that defendant’s sentence constitutes a de facto life sentence under

Buffer and cannot stand based on the considerations in his original sentencing hearing, we do not

address his arguments under the proportionate penalties clause of the Illinois Constitution (Ill.

Const. (1970) art. 1, § 11).

¶ 22 III. CONCLUSION

¶ 23 The proper remedy under the circumstances presented in this case is to vacate the

defendant’s sentence and remand the case for a new sentencing hearing. See Peacock,

. Accordingly, we vacate defendant’s sentence, and we remand the case to

the circuit court for the purpose of resentencing.

¶ 24 Sentence vacated. Cause remanded.

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