FIRST DISTRICT THIRD DIVISION April 26, 2023

No. 1-20-1176

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 84 CR 14278 ) JIMMIE BUFORD, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.

OPINION

¶1 Defendant Jimmie Buford appeals the trial court’s first stage dismissal of his

postconviction petition. He argues on appeal that his 80-year sentence for first degree murder is

an unconstitutional de facto life sentence under the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11) because he was 22 years old at the time of the offense

and has intellectual disabilities.

¶2 Following a bench trial, defendant was found guilty of first degree murder, armed

robbery, and unlawful restraint arising from the shooting death of Winfield Johnson during the

October 1984 robbery of Winfield Groceries in Chicago. The trial court subsequently sentenced

defendant to a term of 80 years for the first degree murder conviction and 10 years for the armed

robbery conviction, to be served consecutively, for a total sentence of 90 years. No. 1-20-1176

¶3 While defendant’s argument focuses on his 80-year sentence for first degree murder, his

aggregate sentence is 90 years, which is subject to day-for-day good conduct credit. Thus,

defendant’s sentence requires him to serve at least 45 years in prison, which constitutes a

de facto life sentence. See People v. Buffer,

(holding that a sentence

over 40 years is considered a de facto life sentence for juvenile defendants); People v. Dorsey,

(finding 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); People v. Horshaw,

, ¶ 131 (applying Buffer and Dorsey to youthful offenders).

¶4 Since defendant is not challenging his conviction, we detail the trial evidence only as

necessary for the resolution of the issue raised on appeal. A full discussion of the evidence

presented at defendant’s trial can be found in his direct appeal. See People v. Buford,

(1988).

¶5 On October 27, 1984, defendant and his two codefendants, Xavier Young and Alfred

Dismukes, entered Winfield Groceries, at the corner of West Cullerton Street and South Keeler

Avenue in Chicago. When the last customer left the store, defendant locked the door, and

Dismukes announced the robbery. Three employees were present in the store: David Burns,

William Wright, and Johnson. Both defendant and Dismukes were armed. Defendant ordered

Johnson to open the cash register, but when Johnson refused, defendant pushed him to the

middle aisle. Burns testified at trial that he then heard Johnson say, “Oh no,” and then a single

gunshot. After the shot, Dismukes ordered Burns to open the cash register. As he walked to the

cash register, Burns saw Johnson on the floor and defendant was going through Johnson’s

2 No. 1-20-1176

belongings. When Burns opened the cash register, Dismukes took the cash and food stamps. The

men then fled the store.

¶6 Defendant was arrested in December 1984 and was subsequently identified by Burns in a

lineup. Following the identification, defendant gave a statement to a detective. In his statement,

defendant said that the store robbery had been the idea of an employee named “Kewanee.”

Defendant admitted his participation in the robbery, including that he supplied the firearms for

himself and Dismukes. Defendant admitted that when Johnson started to struggle, he shot him.

¶7 The defense did not present any evidence. At the conclusion of the trial, the trial court

found defendant guilty of first degree murder, armed robbery, and unlawful restraint.

¶8 In November 1985, Dr. R.A. Reifman examined defendant and found him mentally fit for

sentencing. According to Dr. Reifman, defendant understood the nature of the charge and the

purpose of the proceedings and was able to assist counsel in aggravation and mitigation

proceedings. However, Dr. Reifman was unable to complete a full psychological evaluation

because defendant was “malingering a mental condition for obvious purposes.”

¶9 The proceedings continued to a death penalty hearing before a jury in May 1986. At the

first stage, the jury found defendant was eligible for the death penalty because he was over 18

years old and had committed a murder during an armed robbery. During the second stage, the

parties introduced evidence in aggravation and mitigation. The State presented testimony from

Wendell Lewis, Officer James Pubins, and Detective Patrick Harrington regarding the murder of

Gary Pinkerton, in which defendant was alleged to have participated but was never charged.

¶ 10 Lewis testified that on July 10, 1984, he went to the apartment of Jackie Vance, located

on the 2600 block of South Colon Street in Chicago. Cecil Tyson and a man known to Lewis as

“Tony” were also present. Tyson asked for Lewis’s help in moving a carpet from the apartment

3 No. 1-20-1176

to a truck. Lewis asked Tyson why the carpet was heavy, and Tyson told him, “it was good for

[him] not to know.” While moving the carpet through the apartment, defendant entered from the

back porch, and they continued to drag the carpet to the porch. After they put the carpet in the

back of the truck, Tyson asked Lewis to follow them with defendant in Lewis’s car. He followed

the truck to a gas station, and then continued to follow the truck into an alley near West Congress

Parkway and South Pulaski Road. Defendant told Lewis to pull the car closer to the truck, and

Tyson then got into the car. Tyson directed Lewis to pull the car up to a store. Tony ran up to the

car and told them his matches did not work. Defendant said he had matches and left the car

heading in the direction of where the truck was parked. Defendant and Tony ran back to the car a

short time later and told Lewis to drive away. As he drove, Lewis looked in the direction of the

truck and saw that it was on fire. Lewis was not charged with a crime related to this action, but

Vance was later convicted of murder.

¶ 11 Officer Pubins testified that he was on duty the night July 10, 1984, when he received a

radio call of a fire at 4030 West Congress Parkway. He responded to the call and observed

numerous firefighters at the location. He saw a charred pickup truck in the alley. The rear of the

truck contained a charred blanket and rug, with a charred body inside the rug. He later learned

that the deceased person was named Gary Pinkerton. Officer Pubins smelled gasoline at the

scene.

¶ 12 Detective Harrington was assigned to investigate Pinkerton’s homicide in July 1984.

During his investigation, he interviewed defendant. In the interview, defendant admitted to being

present in Vance’s apartment on July 10, 1984, with Vance, Tyson, and Pinkerton. While he was

in the living room, Vance and Tyson discussed robbing Pinkerton, who was in another room.

Vance then left the room and went to where Pinkerton was, and defendant then heard three gun

4 No. 1-20-1176

shots. Defendant and Tyson went to the bedroom with Vance. He saw that Pinkerton had been

shot. Tyson then shot Pinkerton with a sawed-off shotgun, and Vance shot Pinkerton twice in the

head. Tyson and Vance then went through Pinkerton’s pockets, taking money and other property.

Vance told defendant and Tyson to wrap Pinkerton’s body in bed clothes, which they did, and

then they rolled the body in a rug. Several hours later, after Lewis and Tony arrived, defendant

assisted in carrying the body to truck and driving it to the location on West Congress Parkway.

Tony poured gasoline on the body in the truck, and defendant lit it with matches. Detective

Harrington contacted the State’s Attorney’s office, but no charges were brought against

defendant relating to the murder of Pinkerton.

¶ 13 The State also presented defendant’s prior conviction in a certified statement of

conviction. The statement indicated that defendant pled guilty in April 1983 to theft and burglary

and received a sentence of 18 months’ probation.

¶ 14 In mitigation, the defense presented the testimony of defendant’s mother, Barbara

Buford; his sister, Latoria Buford; his uncle, Hugh Williams; and a neighbor, Ruby Scafe. The

witnesses each testified about their relationship with defendant and his character. They asked the

jury not to impose the death penalty on defendant.

¶ 15 Defendant also testified in mitigation. He did not finish high school and dropped out in

the eleventh grade. On the day of the grocery store robbery, he met with Dismukes, Young, and

Curtis Williams. Defendant admitted to talking to the individual “Kawanni,” who worked at

Winfield Grocery. Kawanni told defendant that he needed money and wanted the men to rob the

grocery store. They went to the store in Williams’s car. Defendant provided two guns for the

robbery. Defendant knew that he could not carry an unregistered gun and was not allowed to

possess them because he had previously been convicted of a felony burglary.

5 No. 1-20-1176

¶ 16 According to defendant, he brought a gun into the store to scare Johnson, but he had no

intention of hurting anyone in the store. He knew the gun was loaded. Young went to the back of

the store to be a “lookout.” Dismukes went to the counter. They waited until the last customer

left, and then defendant pulled out his loaded gun. Johnson was around 65 years old.

¶ 17 Defendant admitted that he took Johnson into the aisle, but he did not intend to shoot

him. In the aisle, defendant told Johnson to lay on the floor, but Johnson rushed him. He grabbed

Johnson and told him to lay down, which Johnson then did. Defendant told Johnson to give him

the money. Defendant bent down to take the money with his left hand and Johnson grabbed the

gun. Defendant pulled the gun away and it fired. Defendant testified that it was an accident, and

he did not shoot Johnson intentionally, but he admitted that he had his finger on the trigger and

knew the gun was loaded. Defendant made this statement to the jury, “I know what I’ve done is

wrong and that I ain’t never really did nobody [sic] any type of bodily harm, and I’ve been

convicted and I know I have to pay for it, but I don’t want to pay for it with my life.”

¶ 18 Defendant also testified about Pinkerton’s murder. He admitted to being present in

Vance’s apartment with her and Tyson, but denied knowing that they were going to murder

Pinkerton. When he heard Vance shoot Pinkerton, defendant was scared. He did not know that

Tyson had a shotgun. Vance had drugs in her apartment, and defendant had smoked marijuana

with PCP. He did not leave the apartment because he was afraid Vance and Tyson would shoot

him. When asked if he should have learned his lesson in that case, defendant responded that he

should have, but he was getting high so much that it did not bother him.

¶ 19 Defendant admitted that he confessed to the police about his involvement in the grocery

store robbery, but later he recanted and lied in his testimony at Young’s trial. He stated that he

6 No. 1-20-1176

tried to cover up for his codefendants because the shooting was an accident. He did not want

them to go to jail because he did this and wanted to pay for it by himself.

¶ 20 Following the second stage proceedings, the jury was unable to unanimously find that

there was no mitigating factor or factors sufficient to preclude the imposition of the death

penalty.

¶ 21 The case then proceeding to a sentencing hearing before the trial court. At the June 1986

hearing, the parties relied on the aggravation and mitigation evidence presented at the death

penalty hearing. The State asked the court to sentence defendant to a term of natural life, while

defendant requested a prison term less than natural life. The trial court stated that it had

considered the bench trial proceedings, the jury death penalty hearing, the sentencing hearing, as

well as defendant’s presentence investigation. After considering the aggravating and mitigating

factors, the court sentenced defendant to a term of 80 years for first degree murder and a

consecutive term of 10 years for armed robbery, to be served consecutively, for a total sentence

of 90 years.

¶ 22 On direct appeal, defendant argued that

“(1) his counsel failed to act as his advocate, thereby denying him his right to

effective assistance of counsel; (2) his counsel’s past friendship with the victim’s

son denied defendant his right to effective assistance of counsel; (3) the trial court

improperly imposed consecutive sentences for murder and armed robbery; and

(4) the extended-term sentence imposed by the trial court was excessive.” Buford,

.

7 No. 1-20-1176

The reviewing court declined to find trial counsel was ineffective, found the trial court did not

err in imposing defendant’s sentence, and affirmed defendant’s conviction and sentence.

.

¶ 23 In reviewing defendant’s claim that his extended term sentence was excessive, the Buford

court found that

“the evidence indicates that defendant pushed Johnson to the floor and then shot

him in the head at close range. He then proceeded to rummage through Johnson’s

clothing. Defendant claims that the gun fired accidentally, but testimony that

Johnson cried out ‘Oh, no’ right before the shot was fired belies defendant’s

claim. Instead, Johnson’s outcry suggests that he was pleading for his life after he

was pushed to the ground.”

The court then concluded that defendant’s actions were cruel, cold-blooded, and devoid of mercy

and that the trial court properly imposed an extended term sentence.

¶ 24 In June 2001, defendant filed a pro se petition seeking habeas corpus relief. In his

petition, defendant argued that his sentence was void under the United States Supreme Court

decision of Apprendi v. New Jersey,

(2000). The trial court dismissed defendant’s

petition without prejudice, and he appealed. On appeal, appellate counsel sought leave to

withdraw pursuant to Pennsylvania v. Finley,

(1987). This court granted counsel’s

motion to withdraw and dismissed defendant’s appeal for lack of jurisdiction because the trial

court’s dismissal order was not final and appealable. People v. Buford, No. 1-03-1020 (June 21,

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

¶ 25 In August 2020, defendant filed his pro se postconviction petition. We note that

defendant styled his petition as a successive petition and requested leave to file the petition, but

8 No. 1-20-1176

the record does not indicate that he previously filed a postconviction petition and the parties do

not dispute that this was defendant’s first petition.

¶ 26 In his petition, defendant argued that his 80-year sentence for murder was

unconstitutional under the proportionate penalties clause of the Illinois Constitution (Ill. Const.

1970, art. I, § 11) because his intellectual disabilities should be treated similarly to a juvenile

defendant. Defendant contended that his IQ was between 52 and 62 and he left school at the

eighth-grade level. He asserted that he has not been able to obtain his GED while incarcerated

due to “his lack of intellect and short attention” span. In his attached affidavit, defendant stated

that he was addicted to PCP and wine from the age of 17 until his incarceration. He also stated

that he was beaten by his mother when he failed to understand her directions. In September 2020,

the trial court held that defendant’s petition was without merit and dismissed it on the record.

¶ 27 This appeal follows.

¶ 28 On appeal, defendant contends that he has set forth an arguable claim that his 90-year

sentence is unconstitutional because the trial court failed to consider his intellectual disability,

his traumatic upbringing, and his youthful age of 22. Specifically, defendant argues that, based

on the recent case law concerning the sentencing of juvenile and youthful offenders following

Miller v. Alabama,

(2012), his sentence violates the proportionate penalties clause.

¶ 29 The Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 to 122-7

(West 2018)) provides a tool by which those under criminal sentence in this state can assert that

their convictions were the result of a substantial denial of their rights under the United States

Constitution or the Illinois Constitution or both.

§ 122-1(a); People v. Coleman,

(1998). Postconviction relief is limited to constitutional deprivations that occurred at

the original trial. Coleman,

. “A proceeding brought under the [Post-Conviction

9 No. 1-20-1176

Act] is not an appeal of a defendant’s underlying judgment. Rather, it is a collateral attack on the

judgment.” People v. Evans,

(1999). “The purpose of [a postconviction]

proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that

were not, and could not have been, determined on direct appeal.” People v. Barrow,

(2001).

¶ 30 At the first stage, the circuit court must independently review the postconviction petition

within 90 days of its filing and determine whether “the petition is frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). “A postconviction petition is frivolous or

patently without merit when its allegations, taken as true and liberally construed, fail to present

the gist of a constitutional claim.” People v. Harris,

(2007). A petition is

frivolous or patently without merit only if it has no arguable basis in law or fact. People v.

Hodges,

(2009). A petition lacks an arguable basis in law or fact if it is “based

on an indisputably meritless legal theory,” such as one that is “completely contradicted by the

record,” or “a fanciful factual allegation,” including “those which are fantastic or delusional.”

.

¶ 31 If the court determines that the petition is either frivolous or patently without merit, the

court must dismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2018). At the

dismissal stage of a postconviction proceeding, the trial court is concerned merely with

determining whether the petition’s allegations sufficiently demonstrate a constitutional infirmity

that would necessitate relief under the Post-Conviction Act. Coleman,

. The

circuit court is not permitted to engage in any fact-finding or credibility determinations.

. At this stage of the proceedings, we are to accept well-pleaded factual allegations of a

postconviction petition and its supporting evidence as true unless they are positively rebutted by

10 No. 1-20-1176

the record of the original trial proceedings. People v. Sanders,

. We

disregard any legal conclusions unsupported by allegations of fact. People v. Wilborn,

.

¶ 32 Initially, we address the State’s assertion that defendant’s argument on appeal, focusing

on Miller protections for a young adult offender, differs from the claim raised in his pro se

petition and has been forfeited. In his reply, defendant argues that a liberal reading of his petition

demonstrates that this is the same claim he raised in his postconviction petition because his

petition alleged that his personal characteristics, including his intellectual disability, made him

akin to a juvenile at the time of the offense.

¶ 33 Generally, Illinois courts have held that a claim not raised in the postconviction petition

cannot be raised for the first time on appeal. People v. Pendleton,

(2006);

People v. Jones,

(2004); see 725 ILCS 5/122-3 (West 2018) (“[a]ny claim of

substantial denial of constitutional rights not raised in the original or an amended petition is

waived”).

¶ 34 In his pro se petition, defendant did not specifically challenge his sentence under Miller

due to his age at the time of the offense. Rather, defendant argued that—based on his intellectual

disabilities, as well as his upbringing and drug use—he should be treated the same as a juvenile

with less culpability, relying primarily on Atkins v. Virginia,

(2002). In Atkins,

the Supreme Court considered whether an intellectually disabled defendant could be found to

have a reduced culpability sufficient to preclude the death penalty.

. In his supporting

memorandum, defendant asserted that, under Atkins, he was subject to a reduced culpability

based on his characteristics and history, including that (1) his IQ was between 52 and 62, (2) he

11 No. 1-20-1176

had a problem comprehending matters, (3) he suffered physical abuse by his mother, and (4) he

abused drugs and alcohol since he was 17.

¶ 35 Defendant’s argument on appeal asks this court to consider these same characteristics,

but in the context of his age as a youthful offender. In this context, defendant relies on Miller,

which held that, prior to imposing a life sentence on a juvenile offender, a sentencing judge must

have the opportunity to consider mitigating factors, such as the juvenile’s age, the juvenile’s

family and home environment, the effects of familial or peer pressure, and the possibility of

rehabilitation. Miller,

. In his petition, defendant cited Miller in relation to his

argument on Atkins to observe the Supreme Court’s consideration of sentencing culpability.

When we liberally construe the claim raised in defendant’s petition, we find that defendant

sought in both his petition and his appeal to challenge the constitutionality of his sentence, based

on his characteristics, including IQ, prior abuse, and drug and alcohol abuse. Thus, his claim has

not been forfeited on appeal. However, for the reasons that follow, defendant has not established

an arguable claim that his de facto life sentence was unconstitutional under either argument.

¶ 36 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 v. Florida,

(2010); Miller,

-

80; 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

12 No. 1-20-1176

barred mandatory life sentences for juveniles who commit murder.”

Miller has since been

held to apply retroactively. Montgomery,

; see People v. Holman,

(recognizing that Miller applied retroactively).

¶ 37 Since Miller, the Illinois Supreme Court has suggested similar sentencing challenges are

viable for youthful offenders, i.e., defendants who are young, but legal adults. See People v.

Thompson,

(finding that a 19-year-old defendant was not necessarily

foreclosed from raising an as-applied challenge in the trial court and observing that the Post-

Conviction Act was designed to resolve such constitutional claims); People v. Harris,

(concluding that the 18-year-old defendant’s as-applied proportionate penalties

challenge was “more appropriately raised” in a postconviction proceeding rather than on direct

appeal).

¶ 38 Unlike the mandatory life sentence imposed in Miller, here defendant’s de facto life

sentence was discretionary. Recently, the Illinois Supreme Court in People v. Clark,

, held that the reasoning in Miller does not apply to discretionary sentences. In that

case, the defendant sought leave to file a successive postconviction petition challenging his 90-

year sentence under the proportionate penalties clause because the sentencing court failed to give

sufficient weight to his mitigating characteristics, including his intellectual disabilities and his

age. Id. ¶ 2. The trial court denied the defendant leave to file his successive petition, and the

Third District affirmed the denial of leave. Id. ¶ 29 (citing People v. Clark,

).

¶ 39 On appeal, the defendant argued that his sentence violated the proportionate penalties

clause under Miller and its progeny. The Clark court held that the defendant’s sentence claim

“fail[ed] as a matter of law.” Id. ¶ 70. The supreme court found that the defendant’s case was

13 No. 1-20-1176

“unlike Miller, where the constitutional error occurred because the sentencing court was

prohibited from considering the mitigating facts at issue in that case, i.e., mitigation stemming

from the juvenile defendant’s youth.” Id. ¶ 71. As our supreme court observed, “[t]he Miller

Court was concerned with mandatory life sentences where the sentencing court had no discretion

to consider the juvenile offender’s youth before imposing the harshest prison sentence

available.” Id. (citing Miller,

). The Clark court further noted that the United

States Supreme Court later “clarified that the holding in Miller does not apply to discretionary

life sentences where the sentencing court does have discretion to consider youth and attendant

characteristics at sentencing.”

(citing Jones v. Mississippi,

, ____,

(2021)).

¶ 40 In reviewing the defendant’s sentence, the supreme court pointed out that the defendant’s

de facto life sentence was discretionary, not mandatory. Id. ¶ 72. The court observed that, at the

time of the defendant’s sentencing, the sentence for first degree murder ranged from no less than

20 years to no more than 60 years. Id. (citing 730 ILCS 5/5-8-1(a)(1)(a) (West 1992)). Because

the victim was 60 years of age or older when the defendant murdered her, the trial court had the

discretion to impose an extended term sentence of not less than 60 years and not more than 100

years. Id. (citing 730 ILCS 5/5-8-2(a)(1) (West 1992)). “By sentencing [the] defendant to 90

years for first degree murder, the circuit court issued a discretionary de facto life sentence,

making the reasoning of the Miller decision not applicable to [the] defendant’s sentence.” Id. The

Clark court held that the “reasoning in Miller does not apply to discretionary life sentences under

proportionate penalties clause standards where the circuit court does consider all relevant

mitigating factors at sentencing and the circuit court’s exercise of discretion is supported by the

evidence in the record.” Id.

14 No. 1-20-1176

¶ 41 The supreme court found that the trial court, in exercising its discretion, considered the

relevant mitigating evidence. Id. ¶ 73.

“Therefore, the concern the Miller Court addressed, i.e., lack of discretion to

consider the characteristics of youth in mitigation, is not present in this case

where the circuit court issued a discretionary sentence after considering the

characteristics of defendant’s intellectual disabilities. The circuit court’s exercise

of discretion at sentencing, after considering the characteristics of defendant’s

intellectual disabilities, did not violate the proportionate penalties clause.”

(Emphasis omitted.) Id.

¶ 42 While defendant’s petition in this case was not a successive petition, the holding in Clark

applies here. Unlike in Miller, defendant in this case had extensive sentencing proceedings in

which aggravating and mitigating evidence was presented and considered, first by the jury and

later by the trial court. A jury considered this evidence during the second stage of death penalty

proceedings, in which several witnesses testified in both aggravation and mitigation, including

defendant on his own behalf. After the jury failed to reach a unanimous verdict on the death

penalty sentence, the trial court conducted a sentencing hearing and was asked to consider the

same evidence in aggravation and mitigation. The court heard the sentencing recommendations

and arguments from both parties, with the State seeking a natural life sentence and the defense

asking for a term less than natural life. The court weighed all the factors and imposed a

discretionary sentence of less than natural life, a term of 90 years. We again note that defendant

will only serve a period of 45 years with day-for-day credit.

¶ 43 As in Clark, at the time of the sentencing hearing, the sentencing range for first degree

murder was not less than 20 years and not more than 60 years. Ill. Rev. Stat 1987, ch. 38, ¶ 1005-

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8-1(a)(1)(a). A discretionary extended term sentence could be imposed “[w]hen a defendant is

convicted of any felony and the court finds that the offense was accompanied by exceptionally

brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat 1987, ch. 38, ¶ 1005-5-

3.2(b)(2). Under section 1005-8-2(a)(1) of the Unified Code of Corrections, the trial court had

discretion to impose an extended term sentence of not less than 60 years and not more than 100

years. Ill. Rev. Stat 1987, ch. 38, ¶ 1005-8-2(a)(1).

¶ 44 Here, the trial court explicitly stated that it had considered the “statutory aggravating and

mitigating factors.” The court then sentenced defendant to an extended term of 80 years for

Johnson’s first degree murder. As discussed above, defendant challenged the trial court’s

imposition of an extended term sentence on direct appeal, which the reviewing court rejected and

found defendant’s actions were cruel, cold-blooded, and devoid of mercy. Buford, 178 Ill. App.

at 340. Like the defendant in Clark, the trial court imposed a discretionary de facto life sentence

on defendant, “making the reasoning of the Miller decision not applicable to defendant’s

sentence.” Clark,

. Accordingly, defendant’s sentencing challenge fails as a

matter of law.

¶ 45 Assuming arguendo that Miller applies to discretionary sentences, we first consider

defendant’s argument seeking sentencing protections because he was 22 at the time of the

offenses. Here, defendant contends that under Miller and its progeny, his de facto life sentence

violates the proportionate penalties clause because his brain was more akin to that of a juvenile

when he committed the offenses at age 22. While defendant cites several cases to support his

Miller claim, nearly all involved proportionate penalties claims advanced by defendants who

were 18 or 19 years old at the time they committed the offenses, rather than 22 years old. See

People v. Minniefield,

; People v. Franklin,

;

16 No. 1-20-1176

People v. Johnson,

; People v. Bland,

;

People v. Ruiz,

; People v. Daniels,

; People

v. Carrasquillo,

.

¶ 46 Defendant relies extensively on People v. Savage,

, for support

and asserts that Savage is analogous to the present case. In Savage, the defendant was 22 years

old at the time he committed first degree murder and was subsequently sentenced to 85 years. Id.

¶ 2. In his postconviction petition, the defendant argued that his drug addiction from the age of

nine made him the functional equivalent of a “younger man.” Id. ¶ 67. The defendant further

alleged that he was using drugs every day at the time of the offense and that he was attempting to

rob a drug house at the time of the murder. Id. ¶ 71. The Savage court found the defendant’s

allegations were supported by detailed hospital records and the presentence investigation report.

Id. ¶ 72. The reviewing court also observed that the record failed to disclose whether the

sentencing court considered the “attributes of young adulthood *** in light of defendant’s

lifelong drug addiction.” Id. ¶ 74. The Savage court concluded that the defendant’s allegations,

taken as true, could not be considered frivolous or patently without merit and advanced his

petition to the second stage. Id. ¶¶ 76, 80. Defendant argues that the same conclusion is

warranted in this case because he was also 22 at the time of the offense and struggled with drug

and alcohol abuse.

¶ 47 Since its issuance, the Savage decision has become an outlier in the developing case law

regarding youthful offenders and “appears to be the only reported decision of this court

extending Miller-based sentencing protections [citation] to a defendant over 21 years of age.”

People v. Guerrero,

. “Numerous cases decided after Savage

have either distinguished it or rejected its reasoning entirely.”

(citing People v. Montanez,

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, People v. Gholston,

,

People v. Kruger,

, ¶¶ 30-31, and People v. Williams,

).

¶ 48 Significantly, this court has previously considered and rejected the same argument

advanced by defendant. People v. Green,

; People v. Hemphill,

. We held that Miller and its progeny do not support a sentencing challenge

for a defendant aged 21 years and over. Green,

; Hemphill,

. In those cases, the defendants, who were 21 years old, both argued

that they had a viable claim that their sentences violated the proportionate penalties clause

because the trial court imposed the sentences without any consideration of their age and its

attendant characteristics. Green,

; Hemphill,

. In reaching our conclusion, this court in Green observed that the recent statutes

enacted by the General Assembly regarding youthful offenders limited relief to defendants under

21 years of age. Green,

(citing 730 ILCS 5/5-4.5-115 (West

2020), and 705 ILCS 405/1-3(2), (10) (West 2018)).

¶ 49 In Green, we held that “the line of adulthood has been drawn at age 21.” Id. ¶ 42;

Hemphill,

(finding that the 21-year-old defendant “was an adult

for purposes of a Miller claim”); see People v. Humphrey,

; People v.

Rivera,

; People v. Suggs,

. We continue to

adhere to this reasoning in the present case and hold that Miller is inapplicable because

defendant was an adult at 22 years old, nearly 23, at the time of the offenses. Therefore,

defendant’s sentencing challenge based on his age lacks a factual and legal basis.

¶ 50 Similarly, to the extent that defendant argues his sentence is unconstitutional based on his

18 No. 1-20-1176

intellectual disability, the Illinois Supreme Court has foreclosed a proportionate penalties

challenge on this basis. People v. Coty,

.

¶ 51 In Coty, the supreme court concluded that, “although Miller is based in part on the lesser

culpabilities of youth, characteristics those with intellectual disabilities tend to share, ‘the Miller

Court’s decision is founded, principally, upon the transient characteristics of youth,

characteristics not shared by adults who are intellectually disabled.’ ” (Emphasis in original.)

Green,

(quoting Coty,

).

¶ 52 The Coty court emphasized the “very different issue” between subjecting an intellectually

disabled defendant to execution and permitting the imposition of a mandatory natural life

sentence. Coty,

. Given the static nature of an intellectual disability, the

court found a reduced probability of rehabilitation. Id. ¶¶ 37-40. As the court noted, “unlike a

juvenile, whose mental development and maturation will eventually increase that potential, the

same cannot generally be said of the intellectually disabled over time.” Id. ¶ 37. “The

rehabilitative prospects of youth do not figure into the sentencing calculus” for an intellectually

disabled adult defendant. Id. ¶ 40. The Coty court concluded that the intellectually disabled

defendant’s initial mandatory natural life sentence was not unconstitutional as applied to him. Id.

¶ 42. As the Coty court observed, “[c]ourts across the country that have addressed the issue ***

have declined to extend Atkins to noncapital sentences or Miller to the intellectually disabled.”

(Internal quotation marks omitted.) Id. ¶ 45.

¶ 53 Defendant contends that the instant case is distinguishable from Coty and its holding. He

contends that, unlike the 46-year-old defendant in Coty, he was only 22 years old at the time of

the offense. Further, unlike the extensive criminal record of the defendant in Coty, he had only

one prior conviction for possession of marijuana. He also notes that there was no evidence in

19 No. 1-20-1176

Coty that the defendant had suffered from drug and alcohol addiction, which defendant explicitly

discussed in his petition.

¶ 54 However, this court in Green declined to depart from Coty based on age and offense. We

held that the “supreme court’s analysis in Coty did not limit its holding to the facts before it, but

rather, observed that mental disabilities are a ‘predominately static condition.’ ” Green,

(quoting Coty,

). Following Coty, we rejected any

claim by defendant that Miller protections should be extended to his case due to his intellectual

disabilities.

We reach the same conclusion here. We do not find that defendant’s drug and

alcohol abuse negates the supreme court’s finding in Coty because his main argument in his

petition was that his intellectual disability rendered him akin to juvenile for sentencing purposes.

¶ 55 Additionally, the supreme court in Clark considered an argument similar to the one

advanced here. Clark,

. The Clark court adhered to its previous holding in

Coty and found that the concerns regarding the transient characteristics of youth analyzed in

Miller did not apply to the defendant’s characteristics of intellectual disability. Id. ¶ 82. For the

same reasons as in Green, defendant’s claim fails. Accordingly, defendant’s argument lacks an

arguable basis in law or in fact, and the trial court properly dismissed his petition at the first

stage.

¶ 56 Based on the following reasons, we affirm the decision of the circuit court of Cook

County.

¶ 57 Affirmed.

20 No. 1-20-1176

People v. Buford,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 84-CR- 14278; the Hon. James B. Linn, Judge, presiding.

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

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Paul E. Wojcicki, and Amy McGowan, Assistant Appellee: State’s Attorneys, of counsel), for the People.

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