FIRST DISTRICT THIRD DIVISION March 30, 2022

No. 1-17-2116

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 98 CR 23300(01) ) MANUEL ACEITUNO, ) ) Honorable Defendant-Appellant. ) Diane G. Cannon, ) Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Howse and Justice Burke concurred in the judgment and opinion.

OPINION

¶1 Defendant Manuel Aceituno appeals the trial court’s denial of his motion for leave to file

his pro se successive postconviction petition. Relying on recent caselaw following the Supreme

Court’s decision in Miller v. Alabama,

(2012), and the evolving societal standards

governing the sentencing of youthful offenders, defendant argues on appeal that he has

established cause and prejudice for the filing of an as-applied challenge that his 48-year sentence

is an unconstitutional de facto life sentence under both the eighth amendment to the United

States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the

Illinois Constitution (Ill. Const. 1970, art. I, § 11) because he was 18 years old at the time of the

offense.

¶2 In September 1998, defendant and his codefendant Paul Koroluk were charged by

indictment with multiple counts of first degree murder, attempted first degree murder, and No. 1-17-2116

aggravated discharge of a firearm arising from the August 1, 1998, shooting death of Colin

Ehlers. This court set forth the facts of this case in a previous Rule 23 order affirming the

summary dismissal of defendant’s initial postconviction petition. See People v. Aceituno, No. 1-

03-2555 (unpublished order under Illinois Supreme Court Rule 23). We incorporate that order by

reference and repeat here only the facts needed to determine the issues before us.

¶3 Defendant’s jury trial began in April 2000. After the testimony of two witnesses,

defendant entered into an open plea agreement for one count of first degree murder. The

evidence presented by the two witnesses

“established that on August 1, 1998, the victim, Colin Ehlers, was present at a

birthday party when defendant and Koroluk, who were uninvited guests, appeared

at the party. Koroluk walked over to the victim and a group of his friends and

introduced himself. Sometime during the conversation Koroluk alleged that

someone called him [a] ‘c**k.’ While the victim was attempting to calm Koroluk,

Koroluk pulled out a loaded gun and said to the victim ‘who is the tough guy

now.’ As Koroluk pointed the gun at the victim, defendant approached the victim

and ‘punched him in the face.’ Defendant then took the gun from Koroluk and

began pointing it at the victim. A friend of the victim, John Macari, [testified that

he] stepped in front of the victim and defendant ‘put the gun’ on Macari’s head

and shouted several times ‘I will kill you[, ] you don’t think I will kill you [?]’

Subsequently, defendant refocused his attention on the victim and stated that he

was going to kill him, and aimed the gun at the victim’s genitals. Defendant and

Koroluk began walking backwards towards a fence and their car. When they

reached the fence, defendant fired three shots at the group. Two of the bullets

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missed, but the third bullet entered the front of the victim’s face just to the left of

his nose, killing the victim. Defendant was arrested and confessed in a

handwritten statement to being the person who fired the shots which killed the

victim.” Aceituno, No. 1-03-2555, at 1-2.

In addition, Macari testified that he identified defendant in a lineup on August 2, 1998.

¶4 Following Macari’s testimony, defendant informed the court that he wished to change his

plea from not guilty to guilty. In exchange for defendant’s plea of guilty to first degree murder,

the State dismissed the remaining charges of attempted first degree murder and aggravated

discharge of a firearm. The trial court observed that the parties previously had a Supreme Court

Rule 402 conference and defendant had rejected the prior plea offer. The court accepted

defendant’s plea and ordered a presentence investigation report (PSI). The court further

admonished defendant that it could sentence defendant to less time or more time than the

sentencing offer of 45 years discussed at an earlier conference. The trial court then admonished

defendant in accordance with Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 1997)). The court asked

defendant if any promises had been made to him regarding the sentence he could receive,

defendant answered no. The court asked defendant if he understood that the sentencing range for

first degree murder was 20 to 60 years, and defendant said he understood. The court further

admonished defendant that he would be subject to three years of mandatory supervised release

upon his release from prison. The court asked defendant if any threats were made to him to get

him to plead guilty and defendant answered in the negative. The court also asked if defendant

understood that his attorney was ready, willing, and able to proceed with the trial, and defendant

answered yes. The court admonished defendant about the nature of the offense to which he was

pleading guilty, and defendant answered that he understood. The court further admonished

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defendant that by pleading guilty, the trial would not proceed, and he would not be confronting

witnesses against him, calling his own witnesses, or testifying on his own behalf. Defendant

responded that he understood. The court acknowledged accepting defendant’s jury waiver.

¶5 At the conclusion of the plea hearing, which took place immediately after the State’s two

witnesses had testified in open court, the court found that “the record amply supports a factual

basis.” The court concluded that “there’s a factual basis for the plea; that the defendant is

entering a plea freely, knowingly, and voluntarily.” The court then entered a finding of guilty to

the charge of first degree murder.

¶6 At the subsequent sentencing hearing, the State presented the testimony of Ehlers’s

parents in aggravation. In allocution, defendant expressed his regret and apologized for taking

Ehlers’s life. He stated that he “made a very fatal and destructive mistake” and he “was not in

[his] proper and right state of mind” because he had been drinking “most of that night.”

Defendant further stated that “it’s my hope to simply have you hear it from me that your son did

not deserve and greatly endure [sic] that tragic night of August 1st, 1998, that I am so, so very

sorry in taking your child.” At the time of the sentencing hearing, the sentencing range for first

degree murder was 20 to 60 years in prison. See 730 ILCS 5/5-8-1(a)(1)(a) (West 2000). In

aggravation, the prosecutor argued that defendant was a violent gang member with juvenile

criminal offenses while Ehlers was a promising college graduate and asked for the maximum

sentence of 60 years.

¶7 Defendant’s PSI indicated two juvenile convictions, burglary to an automobile and

unlawful use or possession of a weapon. The PSI also disclosed that his father was an alcoholic

and his mother was a recovering drug addict. Defendant’s childhood was “rough” because “he

grew up in a neighborhood where people sold drugs and were involved in street gangs” as well

4 No. 1-17-2116

as his parents’ substance abuse issues. He completed the eighth grade and later stopped attending

high school after seven days due to gangs. Defendant indicated that he had a problem with

alcohol and prior to his incarceration, he was consuming a case of beer and a fifth of tequila

daily. Defendant was involved with the C-Notes street gang since he was 10 years old but held

no rank or role in the gang structure.

¶8 In mitigation, defense counsel pointed out that defendant had an IQ of 81 and stressed

defendant’s parents’ addiction issues. Defense counsel also pointed out that defendant had some

rehabilitative potential and asked for a sentence of 40 years.

¶9 Following arguments, the trial court made the following findings before imposing

defendant’s sentence. The court acknowledged that this was “a horrendous situation” with a

party and “a stupid argument” that led to “something that it should not have led to.” The court

discussed the gang involvement and how people are suddenly “sworn enemies because they

came up with this stupid teenage gang that causes them to shoot at each other ***.” Instead of

making an opportunity to increase his base of friends or enjoy himself with people beyond his

“own little niche of friends,” codefendant introduced a gun and defendant was the “one that took

that weapon and fired it.” The court found this was “outrageous conduct” that was “[t]otally

improper, unnecessary” since they were leaving the party. The court noted:

“Not to say that shooting a gun in the air is good, but why wasn’t it just shot in the

air if it’s going to be shot at all, and it should not have been, or into the ground?

Wouldn’t that have shaken everybody up? You could have had a laugh about that

and gone on your way and still have your whole life ahead of you. Instead you

had to aim it at people and kill somebody. It’s just absolutely horrendous and a

very bad act on your part.”

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¶ 10 The trial court discussed the evidence in aggravation and mitigation. The judge also noted

the victim impact statements and testimony from Ehlers’ parents and observed that defendant

needed to listen to “the mother and father of the child he killed ***.” The court acknowledged

that no parent should ever outlive a child, but that is what happened in the case. The court

pointed out that both families were losing a son with defendant’s family losing him to the

penitentiary. The judge further discussed defendant’s family background, including his parents’

addiction issues. But the court observed that there comes a point when defendant gets older and

makes decisions in his life. The court considered defendant’s prior juvenile offenses; burglary to

an automobile for which he received probation and then while on probation, he was charged with

unlawful use of a weapon that led to a sentence in the Juvenile Department of Corrections. The

court noted that while defendant did not originally have the gun that night, he took possession of

it and fired at someone, even after his prior delinquency related to a firearm.

¶ 11 The court also addressed defendant’s “eloquent” letter expressing remorse. The trial court

considered the PSI, reviewed all the factors in aggravation and mitigation, and then sentenced

defendant to a term of 48 years. Defendant filed a motion to reconsider and reduce his sentence,

which the trial court denied.

¶ 12 Defendant appealed the denial of his motion to reconsider his sentence. In an order, this

court allowed the State’s confession of error and remanded the case to the trial court for further

consideration of defendant’s motion to reconsider his sentence pursuant to Supreme Court Rule

604(d) (Ill. S. Ct. R. 604(d) (eff. Jul. 1, 2017)). People v. Aceituno, No. 1-00-1789. In September

2001, the trial court denied defendant’s motion to reconsider his sentence. Defendant appealed

the second denial of his motion to reconsider sentence and the public defender filed a motion to

withdraw pursuant to Anders v. California,

(1967). This court allowed the motion

6 No. 1-17-2116

and affirmed defendant’s sentence. People v. Aceituno, No. 1-01-3872 (2002) (unpublished order

under Illinois Supreme Court Rule 23).

¶ 13 In June 2003, defendant filed his initial pro se postconviction petition in which he alleged

that: (1) his sentence of 48 years was disparate to the sentence received by codefendant; (2) trial

counsel was ineffective for failing to continue his sentencing hearing for the purpose of utilizing

the mitigating factors introduced at codefendant’s sentencing as mitigation; (3) trial counsel was

ineffective for failing to present mitigating evidence regarding the factual events related to the

shooting; (4) appellate counsel was ineffective for omitting defendant’s sentencing challenges on

appeal; and (5) evidence should have been suppressed at the sentencing phase of his proceeding

pursuant to Brady v. Maryland,

(1963). The trial court dismissed defendant’s

petition at the first stage of proceedings and found it was frivolous and patently without merit.

On appeal, defendant argued he set forth the gist of a meritorious claim that his 48-year sentence,

from an open guilty plea for first degree murder, was grossly disparate to codefendant’s 18-year

sentence from a plea of guilty to two counts of aggravated discharge of a firearm. A different

panel of this court affirmed the trial court’s dismissal and found the record did not support

defendant’s claim that a sentencing disparity violated his constitutional rights. Aceituno, No. 1-

03-2555 (2004) (unpublished order under Illinois Supreme Court Rule 23).

¶ 14 In May 2017, defendant filed his pro se motion for leave to file a successive

postconviction petition. Defendant argued that the imposition of his 48-year sentence amounted

to a de facto natural life sentence and violated the eighth amendment because he was 18 years

old at the time of the offense. According to defendant, the trial court failed to consider his

youthfulness at the time his sentence was imposed. He maintained that his claim satisfied the

cause and prejudice test because the holdings of Miller v. Alabama,

(2012) and its

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progeny were previously unknown to him as they were recently issued, and without that

argument, he was prejudiced by being denied his right to due process in his sentencing hearing.

Defendant attached three articles discussing the developing brain of a young adult to his petition.

In June 2017, the trial court denied defendant leave to file his successive postconviction petition.

¶ 15 This appeal followed.

¶ 16 On appeal, defendant argues that the trial court erred in denying him leave to file his

successive postconviction petition because his 48-year sentence constituted a de facto natural life

sentence in violation of eighth amendment of the United States Constitution (U.S. Const., amend.

VIII.) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I,

§ 11).

¶ 17 The sentencing of juvenile and youthful offenders has been evolving in the country over

the last several years. Beginning with Roper v. Simmons,

(2005), the United States

Supreme Court weighed in and set forth new constitutional parameters for the sentencing of

juvenile offenders. See also Graham,

; Miller,

; Montgomery v.

Louisiana,

(2016). “[T]he United States Supreme Court has advised that

‘children are constitutionally different from adults for purposes of sentencing.’ ” People v.

Lusby,

(quoting Miller,

). “The Court outlawed capital

sentences for juveniles who commit murder in Roper and capital sentences for juveniles who

commit nonhomicide offenses in Graham. And in Miller, the Court barred mandatory life

sentences for juveniles who commit murder.”

Miller has since been held to apply

retroactively. Montgomery,

; see also People v. Holman,

(recognizing that Miller applied retroactively). Most recently, the Supreme Court held that the

eighth amendment allows juvenile offenders to be sentenced to life without parole as long as the

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sentence is not mandatory and the sentencing court had discretion to consider youth and

attendant characteristics but that no factfinding by the sentencer is required. Jones v. Mississippi,

593 U.S.____, ____,

(2021).

¶ 18 In light of these cases from the United States Supreme Court, the Illinois Supreme Court

has developed its own evolving jurisprudence regarding Miller-related sentencing claims raised

by juvenile and young adult defendants. In People v. Reyes,

, the supreme

court relied on Miller to conclude that a de facto life sentence violated the eighth amendment

when applied to juveniles. The Reyes court observed that “Miller makes clear that a juvenile may

not be sentenced to a mandatory, unsurvivable prison term without first considering in mitigation

his youth, immaturity, and potential for rehabilitation.”

Later, in People v. Holman,

, the court applied Miller’s reasoning to conclude that a court could not

constitutionally exercise its discretion to impose a life sentence without parole for a juvenile

unless it took into consideration the defendant’s “youth and attendant characteristics.” The

supreme court in People v. Buffer,

, concluded that a sentence over 40

years is considered a de facto life sentence for juvenile defendants, requiring the sentencing court

to consider the defendant’s youth and attendant circumstances. Most recently, in People v.

Dorsey,

, the supreme court held that, when the applicable statutory good-

conduct scheme provides a juvenile defendant some meaningful opportunity to obtain release

after serving 40 years or less incarceration, the defendant’s sentence is not a de facto life

sentence in violation of the eighth amendment to the United States Constitution.

¶ 19 Most of these recent cases considered the sentencing claims of juvenile offenders.

In People v. Harris,

, the 18-year-old defendant on direct appeal argued that his

mandatory minimum aggregate term of 76 years’ imprisonment violated the proportionate

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penalties clause, noting that he had no prior criminal history and several other attributes that

reflected his rehabilitative potential. The supreme court found that Miller did not directly apply

to the defendant because he was an adult. Id. ¶ 45. The court further found his challenge was

premature because the record did not “contain evidence about how the evolving science on

juvenile maturity and brain development that helped form the basis for the Miller decision”

applied to the defendant’s specific facts and circumstances. Id. ¶ 46. The supreme court stated

that the record needed to be developed and defendant’s claim was more appropriate for another

proceeding, such as a proceeding under the Post-Conviction Act. Id. ¶ 48. See also People v.

House,

(following Harris and remanding for further development of the record

on Miller-related claims of a defendant who was 19 years old at the time of the offenses).

¶ 20 In this case, defendant turned 18 on July 21, 1998, and the offense occurred on August 1,

1998. As the supreme court found in Harris, Miller does not directly apply to adult defendants,

but defendant asks this court to consider his sentencing claim for Miller-related protections as a

young adult offender.

¶ 21 In addition to the initial briefing, the case before us has been subject to multiple requests

to cite additional authority, supplemental briefing discussing the relevance of Lusby,

, supplemental briefing considering the applicability of People v. Jones,

,

and oral arguments. Unlike many of the cases cited by defendant, this case involves a sentencing

claim raised after a guilty plea. Thus, we first address whether defendant’s guilty plea bars his

sentencing claims under Miller because we find it dispositive of this appeal.

¶ 22 “It is well established that a voluntary guilty plea waives all non-jurisdictional errors or

irregularities, including constitutional ones.” People v. Townsell,

(2004). In

determining whether a legal claim has been waived, courts should examine the particular facts

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and circumstances of a case, and waiver principles should be construed liberally in favor of the

defendant. People v. Phipps,

(2010). Further, “ ‘ “[w]aivers of constitutional

rights not only must be voluntary but must be knowing, intelligent acts done with sufficient

awareness of the relevant circumstances and likely consequences.” ’ ” People v. Stroud,

(2004) (quoting People v. Johnson,

(1979), quoting Brady v.

United States,

(1970)).

¶ 23 Recently, the Illinois Supreme Court considered whether a defendant’s guilty plea

precluded a sentencing challenge under Miller. Jones,

. There, the defendant was

charged with multiple offenses, including first degree murder, arising from the deaths of an

elderly couple during a 1999 home invasion. Id. ¶ 3. The defendant was 16 years old at the time

of the commission of the offenses. Id. In 2000, the defendant, then age 17, entered into a fully

negotiated plea agreement with the State in which the defendant would plead guilty to one count

each of first degree murder and residential burglary and two counts of armed robbery in

exchange for the dismissal of the remaining charges and concurrent sentences of 50 years for

murder, 30 years for each armed robbery count, and 15 years for residential burglary. Id. ¶ 4.

The defendant waived the preparation of a PSI and a hearing on mitigating and aggravating

factors, and the trial court entered judgment and sentence consistent with the plea

agreement. Id. ¶ 5.

¶ 24 Subsequently, the defendant sought leave to file a successive postconviction petition,

arguing that his 2000 guilty plea and judgment were entered years before the decision

in Miller and that the mandatory statutory sentencing scheme that was applied to him at that time

was void when applied to juveniles. Id. ¶ 7. The trial court denied the motion, and the appellate

court affirmed the denial. Id. ¶¶ 7-10.

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¶ 25 Before the supreme court, the defendant argued that the sentencing scheme in place at the

time of his guilty plea violated the eighth amendment under Miller because if he had gone to trial

and been convicted of committing two murders, he would have been subject to a mandatory life

sentence. Id. ¶ 15. He further argued that in order to comply with Miller, the trial court was

required to use its discretion before imposing a life sentence upon a juvenile offender. Since the

mandatory life sentence precluded any discretion by the trial court, the defendant’s sentence

violated the eighth amendment as applied to him. Id. The defendant conceded that he was not

sentenced under that statutory scheme, but maintained that “when he entered into the plea

agreement with the State, he did not anticipate that the 50-year prison term stipulated in it would

later be declared to be a de facto life sentence that required the trial court’s use of discretion and

consideration of his youthful characteristics and rehabilitative potential.” Id. ¶ 19.

¶ 26 The supreme court rejected the defendant’s arguments. The Jones court noted that the

parties all understood the law applicable at the time of the plea, and thus, “[t]he crux of [the

defendant’s] claim is that none of [the parties] knew that the Supreme Court would later change

the criteria for reviewing the constitutionality of the applicable law.” Id. ¶ 19.

¶ 27 The supreme court then considered the defendant’s plea agreement and pointed out that a

voluntary guilty plea waives “all non-jurisdictional errors or irregularities, including

constitutional ones.” (Internal quotation marks removed and emphasis in the original.) Id. ¶ 20

(quoting People v. Sophanavong,

, quoting People v. Townsell,

(2004)). The court further noted that plea agreements are a contract and the principles

of waiver apply equally to them. Id. ¶ 21. Guilty pleas allow defendants to gain a present benefit

in exchange for the risk of losing out on future favorable legal developments. Id. (quoting Dingle

v. Stevenson,

(4th Cir. 2016)).

12 No. 1-17-2116

¶ 28 In its analysis, the Jones court relied on the decisions in Dingle and Brady v. United

States,

(1970). In Dingle, the 17-year-old defendant was charged with numerous

serious offenses, including murder. After the State filed a notice of its intent to seek the death

penalty under South Carolina law, the defendant sought to avoid death by entering a guilty plea

on all counts in exchange for a sentence of life in prison with the possibility of parole after 30

years. Dingle,

. However, because the imposition of the defendant’s consecutive

sentences barred the possibility of parole, the defendant sought postconviction relief.

While

his postconviction claims were pending, the Supreme Court’s decision in Roper was issued. The

defendant then argued that Roper was applicable to his claim and his guilty plea was involuntary

because it was made for the sole purpose to avoid cruel and unusual punishment, i.e., the death

penalty.

.

¶ 29 The Dingle court turned to the Supreme Court’s decision in Brady. In that case, the

defendant was facing the death penalty for a kidnapping in which the victim was harmed. After

his codefendant, who had confessed, pled guilty and would be available to testify against him at

trial, the defendant changed his plea from not guilty to guilty. The trial court subsequently

sentenced him to a term of 50 years, which was later reduced to 30 years. Brady,

. When changes in the law resulted in the defendant no longer being eligible for the death

penalty, he attempted to withdraw his plea by claiming his plea was not voluntary.

.

¶ 30 In its opinion, the Supreme Court reviewed the importance of a voluntary and knowing

guilty plea.

“That a guilty plea is a grave and solemn act to be accepted only with care

and discernment has long been recognized. Central to the plea and the foundation

for entering judgment against the defendant is the defendant’s admission in open

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court that he committed the acts charged in the indictment. He thus stands as a

witness against himself and he is shielded by the Fifth Amendment from being

compelled to do so—hence the minimum requirement that his plea be the

voluntary expression of his own choice. But the plea is more than an admission of

past conduct; it is the defendant’s consent that judgment of conviction may be

entered without a trial—a waiver of his right to trial before a jury or a judge.

Waivers of constitutional rights not only must be voluntary but must be knowing,

intelligent acts done with sufficient awareness of the relevant circumstances and

likely consequences.”

.

¶ 31 The Supreme Court rejected the defendant’s argument and found the record supported the

lower courts’ findings that his plea was both voluntarily and knowingly made.

. In

its analysis, the Court observed the possible reasons why the defendant entered a plea of guilty.

“One of these circumstances was the possibility of a heavier sentence

following a guilty verdict after a trial. It may be that Brady, faced with a strong

case against him and recognizing that his chances for acquittal were slight,

preferred to plead guilty and thus limit the penalty to life imprisonment rather

than to elect a jury trial which could result in a death penalty.”

.

¶ 32 The Brady court further declined to hold that a guilty plea is “compelled and invalid

under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty

or probability of a lesser penalty rather than face a wider range of possibilities extending from

acquittal to conviction and a higher penalty authorized by law for the crime charged.”

.

According to the Court, the voluntariness of pleas is defined as follows.

“ ‘[A] plea of guilty entered by one fully aware of the direct consequences,

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including the actual value of any commitments made to him by the court,

prosecutor, or his own counsel, must stand unless induced by threats (or promises

to discontinue improper harassment), misrepresentation (including unfulfilled or

unfulfillable promises), or perhaps by promises that are by their nature improper

as having no proper relationship to the prosecutor’s business (e.g. bribes).’ ”

at

755 (quoting Shelton v. United States,

(Tuttle, J., dissenting)

(Fifth Cir., 1957), rev’d on confession of error on other grounds,

(1958)).

¶ 33 The Supreme Court acknowledged the various factors under consideration when deciding

whether or not to enter a guilty plea.

“Often the decision to plead guilty is heavily influenced by the

defendant’s appraisal of the prosecution’s case against him and by the apparent

likelihood of securing leniency should a guilty plea be offered and accepted.

Considerations like these frequently present imponderable questions for which

there are no certain answers; judgments may be made that in the light of later

events seem improvident, although they were perfectly sensible at the time. The

rule that a plea must be intelligently made to be valid does not require that a plea

be vulnerable to later attack if the defendant did not correctly assess every

relevant factor entering into his decision. A defendant is not entitled to withdraw

his plea merely because he discovers long after the plea has been accepted that his

calculus misapprehended the quality of the State’s case or the likely penalties

attached to alternative courses of action. More particularly, absent

misrepresentation or other impermissible conduct by state agents, cf. Von Moltke

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v. Gillies,

(1948), a voluntary plea of guilty intelligently made in the

light of the then applicable law does not become vulnerable because later judicial

decisions indicate that the plea rested on a faulty premise. A plea of guilty

triggered by the expectations of a competently counseled defendant that the State

will have a strong case against him is not subject to later attack because the

defendant’s lawyer correctly advised him with respect to the then existing law as

to possible penalties but later pronouncements of the courts, as in this case, hold

that the maximum penalty for the crime in question was less than was reasonably

assumed at the time the plea was entered.”

.

¶ 34 The Brady court thus concluded that while the defendant’s guilty plea may have been

motivated to avoid the death penalty, the plea was voluntarily and intelligently made.

.

¶ 35 The Fourth Circuit Court of Appeals in Dingle observed that “the logic in Brady applies

generally, regardless of the reason that a defendant is no longer death eligible.” Dingle,

. The Dingle court further found:

“Contracts in general are a bet on the future. Plea bargains are no

different: a classic guilty plea permits a defendant to gain a present benefit in

return for the risk that he may have to forego future favorable legal developments.

[The defendant] received that present benefit—avoiding the death penalty and life

without parole—under the law as it existed at the time. Although Roper, in

hindsight, altered the calculus underlying [the defendant’s] decision to accept a

plea agreement, it does not undermine the voluntariness of his plea. Some element

of pressure exists in every deal, as the tradeoff between present certainty and

future uncertainty is emblematic of the process of plea

16 No. 1-17-2116

bargaining. Brady makes all that exceptionally clear and in following its teachings

we find no infirmity in the plea that [the defendant] entered.”

.

¶ 36 Turning back to Jones, the defendant attempted to distinguish Brady on the basis that his

plea was entered to avoid a mandatory natural life sentence in contrast to the defendant in Brady

who pled guilty to avoid a potential death sentence. The supreme court rejected the defendant’s

argument, noting it would be “purely speculative” for the court to conclude that the defendant

would have been convicted of the most serious charges against him at trial and sentenced to

mandatory life without parole. Jones,

.

¶ 37 Moreover, the supreme court found that the defendant’s “current effort to undo the effects

of his guilty plea shares much common ground with that of the defendant in Brady.” Id. ¶ 26.

The court observed that both defendants entered a plea “ ‘to avoid a potential, not a certain,

sentence.’ ” Id. “Because the principles that were considered and applied in Brady and Dingle

operate here with equal force, we conclude that [the defendant’s] knowing and voluntary guilty

plea waived any constitutional challenge based on subsequent changes in the applicable law.” Id.

¶ 38 Further, the defendant’s “Miller claims require him to show that the de facto life sentence

he received was not entered as a result of the trial court’s use of its discretion since both this

court and the Supreme Court permit the imposition of discretionary life sentences on juvenile

offenders.” Id. ¶ 27. In rejecting the defendant’s claims, the supreme court pointed out that the

trial court was not required to accept the parties’ fully negotiated plea agreement, which

“necessarily constituted an exercise of its discretion” with respect to the defendant’s sentence. Id.

Therefore, the Jones court held that the defendant’s constitutional claims were not cognizable

under Miller and the trial court did not err in denying the defendant’s motion for leave to file a

successive postconviction petition. Id. ¶ 28.

17 No. 1-17-2116

¶ 39 We find the supreme court’s holding dispositive to defendant’s claims before us.

The Jones court examined and rejected the same arguments presented to us, holding that the

defendant was not entitled to relief. Id. ¶¶ 25-28. Critically, since the supreme court denied

postconviction relief to a juvenile defendant, it is clear that the holding would apply with equal

force to defendant here, who was 18 years old at the time of the offense.

¶ 40 At defendant’s guilty plea proceedings, the trial court fully complied with Supreme Court

Rule 402 during defendant’s plea hearing. Rule 402(a) requires the trial court to admonish:

“the defendant personally in open court, informing him or her of and determining

that he or she understands the following: (1) the nature of the charge; (2) the

minimum and maximum sentence prescribed by law, including, when applicable,

the penalty to which the defendant may be subjected because of prior convictions

or consecutive sentences; (3) that the defendant has the right to plead not guilty,

or to persist in that plea if it has already been made, or to plead guilty; and (4) that

if he or she pleads guilty there will not be a trial of any kind, so that by pleading

guilty he or she waives the right to a trial by jury and the right to be confronted

with the witnesses against him or her; or that by stipulating the evidence is

sufficient to convict, he or she waives the right to a trial by jury and the right to be

confronted with any witnesses against him or her who have not testified.” Ill. S.

Ct. R. 402(a) (eff. July 1, 1997).

Rule 402(b) further provides that the trial court:

“shall not accept a plea of guilty without first determining that the plea is

voluntary. If the tendered plea is the result of a plea agreement, the agreement

shall be stated in open court. The court, by questioning the defendant personally

18 No. 1-17-2116

in open court, shall confirm the terms of the plea agreement, or that there is no

agreement, and shall determine whether any force or threats or any promises,

apart from a plea agreement, were used to obtain the plea.” Ill. S. Ct. R. 402(b)

(eff. July 1, 1997).

Rule 402(c) also requires that the trial court “shall not enter final judgment on a plea of guilty

without first determining that there is a factual basis for the plea.” Ill. S. Ct. R. 402(c) (eff. July

1, 1997).

¶ 41 The trial court admonished defendant as to each of the four requirements in Rule 402(a)

and defendant responded on the record that he understood each of them. Defendant never moved

to withdraw his guilty plea, nor did he file a direct appeal seeking to withdraw his guilty plea.

Defendant has not alleged that his plea was not voluntarily or intelligently made, nor has he

argued that the trial court lacked jurisdiction or that the State engaged in any misrepresentation

or committed any misconduct. In compliance with Rule 402(b) and (c), the trial court stated on

the record that it found an ample factual basis for the plea and that defendant entered the plea

“freely, knowingly, and voluntarily.” Accordingly, defendant’s “knowing and voluntary guilty

plea waived any constitutional challenge based on subsequent changes in the applicable law.”

Jones,

.

¶ 42 At the conclusion of the plea hearing, the court found that “the record amply supports a

factual basis.” The court concluded that “there’s a factual basis for the plea; that the defendant is

entering a plea freely, knowingly, and voluntarily.” The court then entered a finding of guilty to

the charge of first degree murder.

¶ 43 In his supplemental brief addressing Jones, defendant argues that Jones has no impact on

his claim because defendant entered into a blind plea agreement. Specifically, defendant

19 No. 1-17-2116

contends that because he entered a blind plea agreement, unlike the defendant in Jones, who

entered into a negotiated plea agreement, the Jones decision has no application to his

constitutional claims. In contrast, the State asserts that Jones forecloses defendant’s claim

because defendant was not subject to a mandatory sentencing scheme and the trial court

exercised its discretion in imposing defendant’s sentence.

¶ 44 Although the outcome in this appeal does not hinge upon whether defendant’s guilty plea

was a blind plea versus a negotiated one, his claim that he entered into a blind plea is not entirely

accurate. There are several categories of guilty pleas which can occur as a result of a defendant’s

decision to forego the right to a trial. Justice Freeman, in a special concurrence in People v.

Linder,

(1999), discussed those different types of plea agreements. Here is

how he described four distinct plea scenarios that usually occur when a defendant enters a guilty

plea.

“(a) The ‘open’ or ‘blind’ plea- [where] defendant pleads guilty without

any inducement from the State, and the circuit court exercises its full discretion

and determines the sentence to be imposed at the conclusion of a sentencing

hearing.

(b) The ‘negotiated as to charge’ plea- [where] defendant pleads guilty

solely in exchange for the State’s dismissal of remaining or outstanding charges.

This type of plea can also include situations in which the defendant agrees to

plead guilty in exchange for the State’ reduction of the original charge to a lesser

offense. In either case, the circuit court exercises its full discretion and determines

the sentence to be imposed at the conclusion of a sentencing hearing. Under this

scenario, despite the existence of the agreement, the State retains its ability to

20 No. 1-17-2116

argue at the sentencing hearing for a sentence from the full range of penalties

provided for in the Code of Corrections including maximum sentences and

extended terms.

(c) The ‘negotiated as to charge and/or sentence’ plea- [where] defendant

pleads guilty in exchange for the State's dismissal of remaining or outstanding

charges and recommendation of a sentencing cap or range. In certain cases,

defendant will only agree to plead guilty as charged in exchange for a sentence

recommendation or range. Under this scenario, the State’s ability to argue at the

hearing for a sentence within the full range of penalties provided for in the Code

of Corrections is limited by the parameters of its agreement with defendant.

(d) The ‘fully’ negotiated plea- [where] defendant pleads guilty in

exchange for the State’s dismissal of charges and agreed upon sentence, and trial

court accepts plea and sentences according to the agreement.”

(Freeman, J.,

specially concurring.)

¶ 45 Here, contrary to defendant’s assertion, defendant’s plea was not truly a blind plea, but

rather falls into the second category, negotiated as to charge, because in exchange for

defendant’s plea of guilty to first degree murder, the State dismissed the remaining charges of

attempted first degree murder and aggravated discharge of a firearm.

¶ 46 Defendant also incorrectly focuses on the differences between a fully negotiated plea

agreement and an open plea agreement as it relates to a defendant’s ability to challenge his

sentence. He notes that a fully negotiated guilty plea is governed by principles of contract law

and a defendant may not challenge his or her sentence without withdrawing his or her guilty

plea. People v. Absher,

(2011). He also points out that defendants who enter

21 No. 1-17-2116

open guilty pleas are allowed to challenge only their sentences without being required to

withdraw their guilty pleas because the trial court had discretion to impose the sentence. People

v. Evans,

(1996).

¶ 47 While defendant’s discussion is legally correct, his analysis is flawed because Jones did

not turn on the fact that the defendant there entered into a negotiated plea. The issue is not

whether defendant’s plea required him to first seek to withdraw his guilty plea before

challenging his sentence. But instead, the question raised in Jones is whether the defendant

waived his constitutional claim by entering a plea of guilty. Significantly, none of the cases

defendant acknowledges turned on whether the guilty plea was a blind or negotiated plea but on

the well-established rule that a voluntary, knowing, and intelligent guilty plea waives

constitutional claims. See People v. Sophanavong,

; People v. Townsell,

(2004). Further, defendant’s argument that he does not want to vacate his

underlying guilty plea while challenging his sentence is a distinction without a difference

because he still seeks to undo the effects of his plea. Similar to the situation in Brady,

defendant’s plea was precipitated by the critical evidence that had been presented against him at

the very beginning of his jury trial. In Brady, it was the potential testimony of a codefendant,

while here, defendant had just heard the compelling testimony recounting defendant firing

multiple gunshots at partygoers, killing Colin Ehlers. Given that defendant was being tried on

charges in addition to first degree murder, his motivation to change his plea, as in Brady, was to

avoid a longer sentence.

¶ 48 As in previous precedent and as pointed out directly above, the Jones court followed the

longstanding principle that a knowing and voluntary plea waives constitutional rights. “By

entering a plea agreement, a defendant ‘forecloses any claim of error. “It is well established that

22 No. 1-17-2116

a voluntary guilty plea waives all non-jurisdictional errors or irregularities, including

constitutional ones.” ’ ” (Emphasis in original.) Jones,

(quoting

Sophanavong,

, quoting Townsell,

(2004)). Thus, the

supreme court’s analysis did not turn on whether the defendant’s plea was fully negotiated or

not, but whether the plea was knowing and voluntary. Defendant does not challenge that his plea

was knowing and voluntary. Nothing in his plea proceedings indicates that his plea was anything

other than knowing and voluntary. We also reject any suggestion by defendant that his waiver

applied only to constitutional claims existing at the time of his plea. As the supreme court found

in Jones, defendant’s “knowing and voluntary guilty plea waived any constitutional challenge

based on subsequent changes in the applicable law.” Id. ¶ 26.

¶ 49 An argument similar to defendant’s was raised in People v. Jackson,

(2002). In that case, the defendant was charged with aggravated battery causing great bodily

harm.

. The offense occurred when the defendant confronted the victim about the

defendant’s boyfriend. The defendant, who had been consuming alcohol, parked behind the

victim’s car, exited her car, and walked over to the victim’s car. The defendant then attacked the

victim through her car window with a box cutter, “slashing her about the face and neck,” with

one of the wounds requiring over 100 stitches. The defendant continued to cut the victim as the

victim tried to move away from her assault.

.

¶ 50 Initially the defendant entered a plea of not guilty, but she later changed her plea to guilty

pursuant to an agreement with the State that it would not seek an extended-term sentence.

. At the plea hearing, the defendant disclosed that she was 18 years old and had completed

the tenth grade. While in school, the defendant was placed in special education due to learning

difficulties, but she was not disabled.

. The trial court admonished the defendant that

23 No. 1-17-2116

she had been charged with aggravated battery, a Class 3 felony, with a normal sentencing range

of two to five years, but she could be sentenced to an extended term of 5 to 10 years’

imprisonment in various circumstances. The court specifically noted that she could receive an

extended term at her sentencing hearing if the court found that “this felony offense was

accompanied by exceptionally brutal or heinous behavior, indicative of wanton cruelty.”

The

defendant indicated that she understood.

¶ 51 Additionally, the supreme court carefully set forth the trial court’s detailed confirmation

that the defendant understood the rights she was waiving by pleading guilty.

. The

trial court specifically asked the defendant if she understood that she was presumed to be

innocent of the charge, the burden was on the State to prove her guilty beyond a reasonable

doubt of aggravated battery, and that the presumption of innocence did not go away until either a

jury in a jury trial or a judge in a bench trial found her guilty. The defendant indicated that she

understood. The court then explained that by pleading guilty, she would lose her right to a trial

and confirmed that she understood what a jury trial was. She responded that she understood. The

court detailed that in a jury trial all 12 jurors had to agree that the State has satisfied its burden of

proof beyond a reasonable doubt, but by pleading guilty she waived this right to a trial. The court

asked if she understood the presumption of innocence, and she responded she did. The court next

asked if she understood that by pleading guilty, she was waiving the State’s burden to prove her

guilty beyond a reasonable doubt. She answered that she understood. The court confirmed that

she was waiving her right to a trial of any kind, and the defendant indicated that she understood.

The defendant also “indicated that she understood and was giving up her rights to the

assistance of an attorney, of confrontation and cross-examination of witnesses against her, to

subpoena witnesses in her favor, and her right to testify or not to testify in her own behalf.”

at

24 No. 1-17-2116

290.

¶ 52 Later, following the sentencing hearing, the trial court discussed the premeditated and

extreme nature of the crime, including that the victim had been permanently blinded in one eye

with permanent scars on her face, and then sentenced the defendant to the maximum extended-

term sentence of 10 years in prison.

.

¶ 53 On appeal, the defendant argued that her sentence violated due process pursuant to

Apprendi v. New Jersey,

(2000), but the Fourth District rejected this claim because

the defendant’s guilty plea waived her sentencing challenge.

at 292 (citing People v. Jackson,

(2001)). In Apprendi, the United States Supreme Court held that “a New

Jersey ‘hate crime’ statute ran afoul of the due process clause of the fourteenth amendment (U.S.

Const., amend. XIV), because it permitted the trial court to impose an extended term of

imprisonment based on a finding by the court, by a preponderance of the evidence, regarding a

defendant’s motives.” Id. at 295. The Apprendi court held that as a component of due process, “a

criminal defendant has the right to require the prosecution to prove to a jury, beyond a

reasonable doubt, all facts necessary to establish the range of penalties potentially applicable to

the defendant.” Id. at 295 (citing Apprendi,

). The Illinois Supreme Court

summarized that the “underlying lesson of Apprendi is, ‘put simply, facts that expose a defendant

to a punishment greater than that otherwise legally prescribed were by definition “elements” of a

separate legal offense.’ ”

at 295-96 (quoting Apprendi,

n. 10).

¶ 54 Before the Illinois Supreme Court, the defendant argued that her sentence violated due

process based on Apprendi because her extended term sentence was premised on the trial court’s

finding that the defendant’s conduct was brutal and heinous rather than Apprendi’s requirement

that the prosecution prove each element of the charged crime beyond a reasonable doubt. The

25 No. 1-17-2116

State responded that the defendant had waived her sentencing claim by pleading guilty. Thus, the

question considered by the supreme court was whether the defendant waived her sentencing

challenge under Apprendi by pleading guilty to the offense with full knowledge that the court

could impose an extended term sentence. Id. at 294-95.

¶ 55 The Jackson court acknowledged that, under Apprendi, “[e]very fact necessary to

establish the range within which a defendant may be sentenced is an element of the crime and

thus falls within the constitutional rights of a jury trial and proof beyond a reasonable doubt.” Id.

at 296. However, the court observed, by pleading guilty, “a defendant waives exactly those

rights.” (Emphasis in original.) Id. Moreover, “[a] knowing relinquishment of the right to a trial

by jury is the sine qua non of a guilty plea.” Id. Thus, the Jackson court concluded that

“Apprendi-based sentencing claims cannot be heard on appeal from a guilty plea.” Id.

¶ 56 Jackson’s analysis is helpful here. Like the defendant in Jackson, defendant entered a

plea of guilty with the dismissal of at least some of the pending charges but no agreement as to

sentencing. Also as the trial court in Jackson admonished the defendant that it could impose an

extended term sentence, the trial court here clearly admonished defendant that the sentencing

range was 20 to 60 years and it could impose a sentence anywhere in that range. His sentencing

claims falls directly within the rights he waived by pleading guilty.

¶ 57 We further point out that the defendant’s plea in Brady was not negotiated. See Brady,

. As discussed above, the Brady court made no distinction between a blind

plea and fully negotiated plea agreement. The Jones court relied on the same reasoning with

approval. Regardless of whether defendant’s plea was blind or negotiated, the type of plea makes

no difference because Jones applies to all knowing and voluntary pleas. Jones does not suggest

that its holding relates only to negotiated pleas. Here, defendant changed his plea to guilty after

26 No. 1-17-2116

hearing compelling eyewitness testimony of the events leading to Ehlers’ murder. In entering a

plea, defendant opted to seek a lower sentence rather than be found guilty by the jury and

potentially receive the maximum term of 60 years.

¶ 58 Moreover, Jones requires that Miller’s additional protections for juvenile offenders apply

only when a trial court lacks, or refuses to use, discretion in sentencing a juvenile offender to a

life, or de facto life, sentence.” Jones,

. In his supplemental brief,

defendant fails to discuss the voluntary nature of his guilty plea and he also fails to discuss

Jones’s mandate that Miller applies only when a trial court fails to exercise its discretion in

sentencing a juvenile offender. This mandate in Jones is especially relevant in the case of a blind

plea where the trial court explicitly has discretion in sentencing a defendant. See id. ¶¶ 27-28.

Here, the trial court clearly exercised its discretion in imposing defendant’s sentence. At

sentencing, defendant sought a sentence of 40 years while the State requested a term of 60 years,

and the trial court thereafter imposed a 48-year sentence. Accordingly, defendant’s claims are

not cognizable under Miller, and the trial court properly denied his motion for leave to file a

successive postconviction petition.

¶ 59 Accordingly, we affirm the decision of the circuit court of Cook County.

¶ 60 Affirmed.

27 No. 1-17-2116

No. 1-17-2116

Cite as: People v. Aceituno,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 98-CR- 23300 (01); the Hon. Diane Gordon Cannon, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Emily E. Filpi, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham and Douglas P. Harvath, Assistant State’s Attorneys, Appellee: of counsel), for the People.

28