No. 2-18-0237 Opinion filed June 25, 2020 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

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

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices McLaren and Bridges concurred in the judgment and opinion.

OPINION

¶1 In 2012, following a jury trial, the juvenile defendant, Zachary 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. Our supreme court ultimately determined that the

defendant’s sentence was unconstitutional and remanded for a new sentencing hearing. People v.

Reyes,

. On remand, the trial court sentenced the defendant to 66 years’

imprisonment. The defendant appeals from this order. We vacate the defendant’s sentence and

remand to the trial court for resentencing.

¶2 I. BACKGROUND

¶3 The defendant was charged by indictment in the circuit court of Kendall County with the

first-degree murder of Jason Ventura and the attempted murders of Eduardo Gaytan and Jorge

Ruiz. The indictment alleged that on December 20, 2009, defendant personally discharged a

firearm in the direction of a vehicle occupied by Ventura, Gaytan, and Ruiz and that defendant’s

actions caused the death of Ventura as well as serious injury to Gaytan. The defendant, who was

16 years old at the time of the shootings, was prosecuted as an adult (see 705 ILCS 405/5-

130(1)(a)(i) (West 2008)). Following a jury trial, he was found guilty of the charged offenses.

¶4 At the defendant’s sentencing hearing, the trial court imposed the mandatory minimum

sentence of 45 years’ imprisonment for the first-degree murder conviction, consisting of the

minimum 20-year sentence for murder (see 730 ILCS 5/5-4.5-20(a) (West 2008)), plus the

minimum 25-year mandatory firearm enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West

2008)). The court also sentenced the defendant to 26 years’ imprisonment for each of the two

attempted-murder convictions, which consisted of the minimum 6-year sentence for attempted

murder (see 730 ILCS 5/5-4.5-25(a) (West 2008)), plus the 20-year mandatory firearm

enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2008)). In addition, as required by statute

(see 730 ILCS 5/5-8-4(d)(1) (West 2008)), the trial court ordered that all of the defendant’s

sentences must run consecutively to each other. As a result, the defendant was sentenced to a

mandatory minimum aggregate sentence of 97 years’ imprisonment. The defendant filed a timely

notice of appeal from this sentence.

¶5 On appeal, the defendant argued, in part, that his sentence was unconstitutional pursuant

to Miller v. Alabama,

(2012). See People v. Reyes,

.

The defendant acknowledged that Miller prohibited a sentencing scheme that mandated a sentence

of natural life in prison without the possibility of parole for juvenile offenders. Id.; Miller, 567

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U.S. at 479. The defendant argued, however, that his aggregate term-of-years sentence was a

de facto mandatory natural life term of imprisonment and was likewise unconstitutional under

Miller. Reyes,

. This court rejected defendant’s argument and

affirmed his sentence. Id. ¶ 23. We concluded that Miller applied only to actual sentences of life

without the possibility of parole and thus declined to extend the Miller rationale to an aggregate

term-of-years sentence that amounted to a de facto life term. Id. ¶¶ 23-25. Our supreme court

subsequently granted the defendant’s petition for leave to appeal. See Ill. S. Ct. R. 315 (eff. Jan.

1, 2015).

¶6 On review, our supreme court held that the defendant’s term-of-years sentence was a

mandatory, de facto life-without-parole sentence that was the functional equivalent of a life

sentence without the possibility of parole. See Reyes,

. The court concluded

that the defendant’s sentence constituted cruel and unusual punishment, in violation of the eighth

amendment to the United States Constitution. Id. ¶ 10. The court thus vacated the defendant’s

sentence as unconstitutional pursuant to Miller (id.) and remanded the matter to the trial court for

resentencing (id. ¶ 12). In so ruling, the court noted that, while the defendant’s appeal was

pending, the legislature enacted a new law, codified in section 5-4.5-105 of the Unified Code of

Corrections (730 ILCS 5/5-4.5-105 (West Supp. 2015)), which provided a new sentencing scheme

for juvenile defendants. The law requires trial courts to take into account several mitigating factors

in determining appropriate sentences and makes the imposition of firearm enhancements a matter

of discretion with the trial courts. Reyes,

. The court held that the defendant

should be resentenced in accordance with the new statute. Id. ¶ 12.

¶7 On remand, the trial court ordered a new presentence investigation (PSI) report and, at the

defendant’s request, an IQ test. In September 2017, a psychological evaluation was conducted at

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the Kane County Diagnostic Center and a report was issued. The report indicated that the

defendant received special education accommodations from 2002 to 2009. During that time, he

suffered from attention-deficit/hyperactivity disorder (ADHD) and took medication for that

condition. ADHD caused problems with inattention and impulsivity, but it is not classified as an

intellectual disability. When the defendant took his medication, he showed marked progress in his

academic functioning. However, the defendant stopped taking his medication when he was in

seventh and eighth grades and exhibited behavioral issues as a result. In seventh grade, he was

suspended for gang-related writing. On a General Ability Index (GAI) evaluation, which the report

indicated “represent[ed] a reliable and valid estimate of his overall intellectual ability,” the

defendant scored in the tenth percentile, which indicated that he was in the low average range of

functioning. The conclusion in the report was that the defendant did not meet the criteria for

intellectual disability as defined by section 5-1-13 of the Unified Code of Corrections (730 ILCS

5/5-1-13 (West 2016)).

¶8 The record indicates that, while an initial PSI report was completed in March 2012, the

updated PSI report was completed on November 8, 2017. The PSI report indicated that, prior to

the charges in this case, the defendant’s juvenile record consisted of a charge of unlawful

possession of a firearm without a valid firearm owner’s identification card. At the time of his

arrest, he was in the ninth grade at East Aurora High School. Since he was incarcerated, he had

taken classes and earned numerous certificates in roofing, insulation, and vinyl decking. He had

also earned an anti-violence-awareness certificate and had attended Bible study classes. The report

indicated that his parents never married and his father did not play an active role in his life. He

grew up at home with his mother and four half-siblings. He described his relationship with his

half-siblings as “good.” The defendant became involved with the Latin Kings street gang when

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he was 13 or 14 years old. The defendant expressed remorse for his offenses and specifically for

the death of Ventura.

¶9 The PSI report further indicated that a “Level of Service Inventory-Revised (LSI-R)” was

completed for the defendant and that the test was an objective and quantifiable risk-assessment

tool for predicting current risk to reoffend. Defendant’s LSI-R was based on the factors and details

that were relevant to him at the time of the offenses, December 20, 2009. The results showed that

the defendant was a medium risk for recidivism at the time of the offenses. The report also

indicated that, at the time of his arrest, the defendant was on probation for his charge of unlawful

possession of a weapon. The report concluded that the defendant’s subsequent arrest for the crimes

at issue indicated that his attitude was “supportive of crime.”

¶ 10 An addendum to the PSI report was filed, which included a written statement from the

defendant. In that statement, the defendant expressed remorse for the crimes at issue and stated

that he took full responsibility for his actions. He stated that, while incarcerated, he had been

taking classes because he wanted to learn and become a better person. On the night of the shooting,

older members of the Latin Kings had taken advantage of him because he wanted to be liked, had

low self-esteem, and did not know how to refuse them when they asked him to shoot.

¶ 11 On February 16, 2018, at the sentencing hearing, the State submitted two disciplinary

reports for the defendant from the Menard Correctional Center, dated July 27, 2012, and May 23,

2014. Both disciplinary reports were for possession of contraband: one for having a weapon (a

piece of metal that had a hook on one end) and one for literature related to the Latin Kings (the

Latin Kings “Holy Prayer” and “Code of Kingdom”). The State also submitted an April 19, 2016,

affidavit from the defendant, which had been filed in a Kendall county case against his

codefendant, Francisco Salazar. In the affidavit, the defendant admitted to receiving the gun used

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in the shooting from higher ranking members of the Latin Kings and firing all the shots into

Ventura’s car, based on orders from the higher-ranking gang members. The defendant also

claimed that Salazar was not aware of the gun or the plan. This differed from the defendant’s

testimony at his own trial, where he had testified that he was not the one who fired the shots

towards Ventura’s car.

¶ 12 The defendant submitted his school records, which showed that he had an Individual

Education Program (IEP) and was in the ninth grade at age 16. The defendant’s mother testified

that the defendant had an IEP since first grade. He was ultimately diagnosed with ADHD. The

defendant always scored below average and was considered learning disabled. The defendant

struggled socially and did not have many friends. The defendant’s mother testified that the other

people involved in the crime were not people with whom the defendant normally associated. On

cross-examination, the defendant’s mother acknowledged that the defendant’s problems in school

were also related to his behavior and that his behavior problems were the main reason he was

placed in special schools. She was not aware that the defendant’s IEP reports indicated that he

had gang affiliations as early as 2007.

¶ 13 The trial court heard victim impact statements from Ventura’s mother, father, and brother.

The trial court then heard arguments. The State noted that one of the factors to consider in

mitigation was whether the defendant’s criminal conduct was a result of circumstances unlikely to

recur. The State noted that the May 2014 disciplinary report from the correctional center indicated

that the defendant had a copy of the Latin Kings’ “Holy Prayer” and “Code of Kingdom.” The

State argued that the defendant’s continued gang affiliation showed that the defendant’s criminal

conduct was likely to recur. The State also argued that the defendant was not a candidate for

rehabilitation. The State noted that the defendant was still part of the gang and still did not take

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responsibility for his actions. The State pointed out that, at his trial, the defendant testified that he

was not the shooter and that, in a subsequent affidavit, he stated that he was the shooter. Either

way, the State argued, the defendant continued to blame others and not truly accept responsibility

for his actions.

¶ 14 The defendant argued that he did not have a violent criminal history. His only other offense

prior to the murder was possessing a gun that he had found. The defendant argued that he was

taken advantage of by the older gang members. He had a learning disability and was not a mature

16-year-old. The crime was the result of peer pressure and negative influences. The defendant

argued that he had a high potential for rehabilitation, as evidenced by the multiple classes he was

taking in prison to better himself. The defendant argued that the event was not planned and that

he had expressed remorse for his actions. With regard to his two disciplinary reports—for having

a piece of metal that could be used as a weapon and for gang affiliation—defendant argued that

such actions were a means of survival for a juvenile defendant sent to a maximum-security prison.

Defendant noted that he was 5’7” tall and weighed 145 pounds.

¶ 15 On March 16, 2018, the trial court announced its ruling. The trial court noted that it

reviewed the transcripts of the jury trial and the original sentencing hearing. The trial court stated

that it considered all the evidence presented at the sentencing hearing, including the testimony, the

victim impact statements, and the PSI report and the addendum. The trial court further stated that

it considered the nature of the offense, the maximum and minimum sentences, the defendant’s

criminal history, the crime’s impact on society, the defendant’s young age, his familial and home

environment, the extent of his participation in the crimes, the effect of peer pressure, and the

possibility of the defendant’s rehabilitation.

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¶ 16 The trial court stated that it considered the statutory factors in aggravation and mitigation.

In mitigation, the trial court found that the defendant acted under strong provocation and that he

had an intellectual disability. In aggravation, the trial court considered that the defendant had a

prior weapons-related offense and that the current offense was gang-related. The trial court noted

that it also considered that the appropriate sentence should be a deterrent to others but that it did

not give this factor significant weight. Finally, the trial court stated that it considered the two

disciplinary reports to the extent that they related to the defendant’s potential for rehabilitation.

¶ 17 The trial court sentenced the defendant to 25 years’ imprisonment and a 25-year firearm

enhancement for the first-degree murder of Ventura, 10 years’ imprisonment for the attempted

murder of Gaytan, and 6 years’ imprisonment for the attempted murder of Ruiz. As required by

statute, the trial court ordered the sentences to run consecutively, resulting in an aggregate prison

term of 66 years. The trial court calculated that the defendant would be eligible for parole after

63.5 years, at the age of 82. Thereafter, the defendant filed a timely notice of appeal.

¶ 18 II. ANALYSIS

¶ 19 On appeal, the defendant argues that the trial court abused its discretion in sentencing him

to a 66-year de facto natural life aggregate sentence without adequately considering the

defendant’s youth and attendant circumstances. The defendant’s challenge to his sentence is based

on Miller,

, and the line of cases following that decision.

¶ 20 The defendant acknowledges that the issue is forfeited because he did not file a motion to

reconsider his sentence in the trial court. People v. Hillier,

(2010) (“to preserve

a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion

raising the issue are required”). However, in an effort to promote judicial economy, the State has

waived any claim that the argument is forfeited and has requested that we address the merits of the

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appeal. People v. Beachem,

, 241 n.2 (2008) (forfeiture is in the nature of an

affirmative defense that State may raise, waive, or forfeit).

¶ 21 In Miller, the Court held “that the [e]ighth [a]mendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for juvenile offenders” who commit murder.

Miller,

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

. In other words, the Court’s holding required

that life-without-parole sentences be based on judicial discretion, rather than statutory mandates.

.

¶ 22 The Court later clarified Miller’s holding in Montgomery v. Louisiana,

,

(2016). Montgomery reinforced that children are constitutionally different from adults

for sentencing purposes.

at ___,

. The Court noted that, under Miller,

sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile offender whose

crime reflects irreparable corruption.’ ” (Internal quotation marks omitted.)

at ___,

(quoting Miller,

). Montgomery explained that, in Miller, “[t]he Court

recognized that a [trial court] might encounter the rare juvenile offender who exhibits such

irretrievable depravity that rehabilitation is impossible and life without parole is justified. But in

light of ‘children’s diminished culpability and heightened capacity for change,’ Miller made clear

that ‘appropriate occasions for sentencing juveniles to this harshest possible penalty will be

uncommon.’ ”

at ___,

-34 (quoting Miller,

). The Court held

that Miller’s holding was retroactive.

at ___,

; see also People v. Davis,

(same).

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¶ 23 Our supreme court has extended the Miller rationale, holding that (1) Miller applies to a

mandatory term-of-years sentence that is the functional equivalent of life without the possibility

of parole (a de facto life sentence) (Reyes,

) and (2) Miller applies to

discretionary sentences of life without parole for juvenile defendants (People v. Holman,

). More recently, the court has defined a de facto life sentence for a juvenile offender

as one that is greater than 40 years. People v. Buffer,

(stating “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”).

¶ 24 In Buffer, our supreme court held that, “to prevail on a claim based on Miller and its

progeny, 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.”

¶ 27 (citing Holman,

, and Reyes,

). In

the present case, the defendant’s 66-year sentence is a discretionary de facto life sentence and

Miller thus applies.

¶ 25 In Holman, the court explained:

“Under Miller and Montgomery, 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. 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 [(the Miller factors)]: (1) the juvenile

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

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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,

(citing

Miller,

).

Accordingly, to withstand a Miller-based constitutional challenge to a defendant’s sentence, the

trial court must consider the Miller factors and determine whether the defendant was among those

juvenile offenders whose conduct reflects transient immaturity or whether the defendant was

among the rarest of juvenile offenders whose conduct places him beyond the possibility of

rehabilitation.

¶ 26 In the present case, the trial court stated that it considered the Miller factors. Specifically,

it considered “the defendant’s age, his family and home environment, the extent of his participation

in the crimes, the effect of any familial or peer pressure, and the possibility of his rehabilitation.”

Further, some information pertinent to the Miller factors was presented and considered through

the defendant’s school records, the PSI report and the addendum, the evidence presented at the

sentencing hearing, and the parties’ arguments.

¶ 27 Regarding the first Miller factor, the trial court stated that it considered that the defendant

was only 16 years old at the time of the offenses. The trial court also considered, as a statutory

mitigating factor, that the defendant had an intellectual disability. The record indicates that the

defendant struggled in school and, at the time of the offenses, although he was 16 years old, he

was only in the ninth grade.

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¶ 28 As to the second Miller factor, the PSI report indicated that the defendant grew up without

a father but had a seemingly normal home life with his mother and four half-siblings. In the PSI

report, the defendant described his relationship with his siblings as “good.” The report also

indicated that his mother and half-siblings had visited him while he was incarcerated.

¶ 29 With regard to the third factor, the defendant’s degree of participation in the crimes, the

jury found that the defendant had fired the shots that killed Ventura, and, in a subsequent affidavit,

the defendant admitted that, at the request of a higher-ranking gang member, he was the one who

fired the shots at Ventura’s vehicle. The trial court considered, in mitigation, that the defendant

likely acted under strong provocation from others. Regarding the fourth factor, there was no

evidence presented that the defendant was unable to deal with the police officers or prosecutors or

was incapable of assisting his own attorneys.

¶ 30 Finally, with regard to the fifth factor, the defendant’s potential for rehabilitation, the trial

court stated generally that it considered the issue of rehabilitation and that it considered the

defendant’s two disciplinary reports as they related to the defendant’s potential for rehabilitation.

The record also shows that the trial court considered that the defendant had one previous juvenile

offense of record, for unlawful possession of a weapon. The State argued that the defendant was

not amenable to rehabilitation, as evidenced by his two disciplinary reports and continued gang

affiliation. The defendant argued that the continued gang affiliation was merely a method of

survival for a juvenile in a maximum-security prison and that he had potential for rehabilitation,

as demonstrated by his expressed remorse and the classes he attended while incarcerated.

¶ 31 Accordingly, the record shows that the trial court stated that it considered the Miller factors

and that there was also evidence and argument related to those factors. However, despite noting

the defendant’s age, the trial court never commented on the defendant’s immaturity, impetuosity,

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or ability to understand risks and consequences. The trial court 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. With

respect to rehabilitation, the trial court did not mention or discuss the finding in the PSI report that

the defendant was at a medium risk to reoffend. The trial court also did not comment on the fact

that the defendant had earned a number of certificates in prison as a means to better himself and

had expressed remorse in his written statement. As such, the record does not show that the trial

court made any determination that the defendant was beyond rehabilitation or that the defendant’s

conduct reflected permanent incorrigibility. Cf. Holman,

(the

defendant’s sentence complied with Miller where the probation officer, in the PSI report, stated

that the defendant had “no predilection for rehabilitation” and the trial court found that the

defendant could not be rehabilitated).

¶ 32 Based on our review of the record, we hold that the defendant’s sentence did not comply

with Miller and Holman. In this case, the trial court imposed a de facto life sentence on the

defendant but the record does not reflect a determination by the trial court that the defendant was

among the rarest of juvenile offenders whose “conduct showed irretrievable depravity, permanent

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

Accordingly, the appropriate remedy is to vacate the defendant’s sentence and remand for

resentencing. Davis,

. In so ruling, we express no view about the sentence

that the defendant should ultimately receive. On remand, the trial court could once again impose

a de facto life sentence only if it determines that the defendant is beyond rehabilitation. See

Holman,

.

¶ 33 III. CONCLUSION

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¶ 34 For the reasons stated, we vacate the defendant’s sentence and remand for a new sentencing

hearing.

¶ 35 Vacated and remanded.

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No. 2-18-0237

Cite as: People v. Reyes,

Decision Under Review: Appeal from the Circuit Court of Kendall County, No. 09-CF-505; the Hon. Timothy J. McCann, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of for State Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Eric C. Weiss, State’s Attorney, of Yorkville (Patrick for Delfino, Edward R. Psenicka, and Mary Beth Burns, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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