May 6, 2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
ZACHARY A. REYES, Defendant-Appellant
from the Circuit Court of Kendall County. No. 09-CF-505.
Honorable John A. Barsanti, Judge, Presiding.
A. Lilien and Kathleen J. Hamill, both of State Appellate
Defender's Office, of Elgin, for appellant.
Weis, State's Attorney, of Yorkville (Lawrence M. Bauer
and Aline Dias, both of State's Attorneys Appellate
Prosecutor's Office, of counsel), for the People.
JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion. Justices Burke and Spence concurred in the judgment
[¶1] Following a jury trial, the juvenile
defendant, Zachary A. 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. On appeal, the
defendant argues that the automatic transfer statute of the
Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS
405/5-130 (West 2008)) (also known as the excluded
jurisdiction statute), which requires that certain juveniles
be tried and sentenced as adults, is unconstitutional.
The defendant also argues that, under the holding in
Miller v. Alabama, 567 U.S., 132 S.Ct. 2455, 183
L.Ed.2d 407 (2012), the Illinois statutory sentencing scheme
is unconstitutional as applied to him. We affirm.
[¶3] On January 15, 2010, the
then-16-year-old defendant was charged by indictment with 16
counts for offenses that occurred on December 20, 2009, when
the victim, Jason Ventura, was killed. The first five counts
alleged that the defendant committed first-degree murder of
the victim by shooting him in violation of sections 9-1(a)(1)
and 9-1(a)(2) of the Criminal Code of 1961 (Criminal Code)
(720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)). The indictment
also contained two counts of attempted murder with a firearm,
one committed against Eduardo Gaytan and the other against
Jorge Ruiz, in violation of section 8-4(a) of the Criminal
Code (720 ILCS 5/8-4(a) (West 2008)). The other nine counts
were either dismissed or nol-prossed prior to trial.
[¶4] On August 18, 2011, the State filed a
notice stating its intent to seek firearm add-ons of 15
years, 20 years, or 25 years to life pursuant to section
5-8-1 of the Unified Code of Corrections (730 ILCS 5/5-8-1
[¶5] A jury trial commenced on January 23,
2012. The jury ultimately found the defendant guilty of
first-degree murder and found that the defendant personally
discharged the firearm that proximately caused the
victim's death. The jury also found the defendant guilty
of the two counts of attempted first-degree murder and found
that the defendant personally discharged the firearm in both
of those attempts.
[¶6] On March 29, 2012, the defendant's
motion for a new trial was denied and the trial court held a
sentencing hearing. Following the hearing, the trial court
sentenced the defendant to 45 years' imprisonment for
first-degree murder. This sentence was the minimum 20-year
sentence (see 730 ILCS 5/5-4.5-20(a) (West 2008) (providing
range of 20 to 60 years)), plus a mandatory 25-year firearm
enhancement (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008)
(add-on may be 25 years to natural life)). The trial court
also sentenced the defendant to 26 years' imprisonment
for each attempted-murder conviction, each of which was the
minimum 6-year sentence (730 ILCS 5/5-4.5-25(a) (West 2008)
(providing range of 6 to 30 years)), plus a mandatory 20-year
firearm enhancement (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West
2008)). The trial court found that the defendant's
first-degree-murder conviction required consecutive sentences
pursuant to section 5-8-4(d)(1) of the Unified Code of
Corrections (730 ILCS 5/5-8-4(d)(1) (West 2008)). The trial
court therefore ordered all the sentences to run
consecutively to each other. In total, the defendant was
sentenced to 97 years' imprisonment, of which he must
serve at least 89 years, making him first eligible for
mandatory supervised release (MSR) at age 105. Following the
denial of his motion to reconsider his sentence, the
defendant filed a timely notice of appeal.
[¶8] On appeal, the defendant argues that
the automatic transfer statute (705 ILCS 405/5-130 (West
2008)), which requires that minors 15 years old or older
charged with certain crimes be prosecuted and sentenced as
adults, violates 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), as well as the due process clauses
both the United States Constitution (U.S. Const., amends. V,
XIV) and the Illinois Constitution (Ill. Const. 1970, art. I,
§ 2). The defendant further argues that his 97-year
aggregate term of imprisonment is a de facto
mandatory natural life term of imprisonment that is
unconstitutional pursuant to Miller. We will address
each argument in turn.
[¶9] The defendant's first argument is
that the automatic transfer statute violates the eighth
amendment to the United States Constitution and the
proportionate penalties clause of the Illinois Constitution
because it requires that juveniles charged with first-degree
murder be automatically transferred to criminal court for
trial and, if convicted, be sentenced as adults. The
defendant notes that adult sentences and sentence
enhancements, such as the mandatory firearm enhancements (730
ILCS 5/5-8-1 (West 2008)), mandatory consecutive sentencing
(730 ILCS 5/5-8-4 (West 2008)), and the " truth in
sentencing" provisions (730 ILCS 5/3-6-3 (West 2008)),
apply to juveniles who are prosecuted as adults. The
defendant contends that the automatic transfer statute and
the adult sentencing requirements do not take into account
the inherent differences between juveniles and adults,
specifically the attendant circumstances of youth.
[¶10] We review de novo a challenge
to the constitutionality of a statute. People v.
Luciano, 2013 IL App. (2d) 110792, ¶ 43, 988 N.E.2d
943, 370 Ill.Dec. 587. Further, we presume that statutes are
constitutional. People v. Vasquez, 2012 IL App. (2d)
101132, ¶ 53, 971 N.E.2d 38, 361 Ill.Dec. 383. Thus, a
defendant challenging the constitutionality of a statute must
establish its constitutional invalidity. Id. The
eighth amendment protects both children and adults from cruel
and unusual punishment. U.S. Const., amend. VIII;
Miller, 567 U.S. at __, 132 S.Ct. at 2463. The
proportionate penalties clause of the Illinois Constitution
provides that " [a]ll penalties shall be determined both
according to the seriousness of the offense and with the
objective of restoring the offender to useful
citizenship." Ill. Const. 1970, art. I, § 11. The
proportionate penalties clause is coextensive with the
cruel-and-unusual-punishment clause of the eighth amendment.
People v. Pacheco, 2013 IL App. (4th) 110409, ¶
54, 991 N.E.2d 896, 372 Ill.Dec. 406.
[¶11] The defendant's first argument, as
well as his other arguments that follow, are based on three
United States Supreme Court decisions. In Roper v.
Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d
1 (2005), the Supreme Court held that the eighth amendment
barred capital punishment for juvenile offenders. In
Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011,
176 L.Ed.2d 825 (2010), the Supreme Court held that a
sentence of life without the possibility of parole violated
the eighth amendment when imposed on juvenile offenders for
crimes other than homicide. In Miller, the Supreme
Court held that the eighth amendment prohibited " a
sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders," even
those convicted of homicide offenses. Miller, 567
U.S. at __, 132 S.Ct. at 2469. 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 a
juvenile defendant. Id. at __, 132 S.Ct. at 2468-69.
The defendant contends that these cases are " rooted in
scientific and common sense recognition that fundamental
differences exist between children and adults[,] which must
when evaluating the constitutionality of adult sentences
imposed on children." The defendant argues that, under
our statutory scheme, the trial court has no opportunity to
take a juvenile defendant's age or culpability into
account and make an individualized determination as to
whether adult punishment is appropriate.
[¶12] The defendant acknowledges that, in
Pacheco, the Fourth District Appellate Court held
that the automatic transfer statute does not violate the
eighth amendment or the proportionate penalties clause.
Pacheco, 2013 IL App. (4th) 110409, ¶ ¶
55, 58; see also People v. Salas, 2011 IL App. (1st)
091880, ¶ ¶ 66, 70, 961 N.E.2d 831, 356 Ill.Dec.
442 (the automatic transfer statute did not violate the
eighth amendment or the proportionate penalties clause,
because it did not impose a punishment; it merely specified
the forum in which the defendant's guilt may be
adjudicated); People v. Jackson, 2012 IL App. (1st)
100398, ¶ ¶ 21, 24, 965 N.E.2d 623, 358 Ill.Dec.
552 (agreeing with Salas). The present defendant
asks us to disregard this precedent.
[¶13] However, subsequent to the filing of
the defendant's briefs in this case, our supreme court
issued its decision in People v. Patterson, 2014 IL
115102, 388 Ill.Dec. 834, 25 N.E.3d 526, which specifically
rejected the same arguments raised by the defendant here. In
Patterson, our supreme court held that the automatic
transfer statute did not violate the eighth amendment or the
proportionate penalties clause. Id. ¶ 106. The
supreme court rejected the assertion that the resultant
application of mandatory consecutive sentencing and truth in
sentencing rendered the automatic transfer statute a
sentencing statute. Id. ¶ 104. The court
reasoned that the purpose of the automatic transfer statute
was not to punish a defendant; its purpose was to establish
the relevant forum for the prosecution of a juvenile charged
with one of five serious crimes. Id. ¶ 105. The
court held that, because the automatic transfer statute
failed to impose actual punishment, the defendant's
eighth amendment challenge necessarily failed. Id.
¶ 106 . The court also rejected the defendant's
challenge based on the proportionate penalties clause because
that clause was co-extensive with the eighth amendment's
cruel-and-unusual-punishment clause. Id. Thus, our
supreme court upheld the automatic transfer statute's
constitutionality, and the defendant's first contention
on appeal is without merit.
[¶14] The defendant's next contention on
appeal is that the automatic transfer statute violates the
due process clauses of the United States and Illinois
Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970,
art. I, § 2. Specifically, the defendant argues that, on
its face, the automatic transfer statute denies due process
of law " because it provides no mechanism by which a
trial court can make an individualized determination as to
whether the juvenile should be tried in criminal court and
subjected to sentencing pursuant to statutes that were
intended for adult offenders."
[¶15] The defendant acknowledges that,
nearly 30 years ago, in People v. J.S., 103 Ill.2d
395, 405, 469 N.E.2d 1090, 83 Ill.Dec. 156 (1984), the
Illinois Supreme Court found that the automatic transfer
statute satisfied due process. The defendant argues that the
viability of that holding is questionable in light of
Miller, Graham, and Roper. However, our
supreme court rejected this argument in Patterson as
well. In Patterson, the court noted that it had
found that the automatic transfer statute did not violate due
process in J.S., id., and, later, in People v.
M.A., 124 Ill.2d 135, 147, 529 N.E.2d 492, 124 Ill.Dec.
511 (1988). Patterson, 2014 IL 115102, ¶ ¶
The court rejected the Patterson defendant's
reliance on the eighth amendment analyses in Roper,
Graham, and Miller to support his due process
claims, noting that " a constitutional challenge raised
under one theory cannot be supported by decisional law based
purely on another provision." Id. ¶ 97.
The Patterson court held that Roper,
Graham, and Miller did not provide a basis to
reconsider its holding in J.S. Id. ¶
98. Thus, here, the defendant's due process claim fails
[¶16] The defendant's final contention
on appeal is that his 97-year aggregate prison sentence is a
de facto mandatory natural life term of imprisonment
and is unconstitutional under Miller. The defendant
notes that the truth-in-sentencing statute requires that he
serve a little over 89 years of that term and that he will
not be eligible for MSR until he is 105 years old. The
defendant acknowledges that the Miller defendants
were each sentenced to a single prison term of natural life
without the possibility of parole but argues that his
sentence is, in effect, the same, making it cruel and unusual
[¶17] In arguing that his sentence is a
de facto mandatory life term of imprisonment, the
defendant relies on People v. Thomas, 211
Cal.App.4th 987, 150 Cal.Rptr.3d 361 (Cal. Ct.App. 2012). In
Thomas, the defendant, Dejon Satterwhite, a
participant in drive-by shootings that occurred on August 13
and 14, 2004, was convicted of two counts of murder, three
counts of attempted murder, and two counts of shooting at an
occupied motor vehicle. Id. at 364-66. As a result
of adult sentencing ranges, enhancements, and consecutive
sentencing requirements, Satterwhite was sentenced to an
aggregate prison term of 196 years to life. Id. at
[¶18] On review, Satterwhite argued that his
sentence should be reversed and the cause remanded in light
of Miller, which held that, in homicide cases, the
imposition of a mandatory life sentence without the
possibility of parole on juvenile offenders violated the
eighth amendment. Id. at 380-81. The Thomas
court held that Satterwhite's aggregate sentence of 196
years to life was the functional equivalent of a
mandatory-life-without-parole sentence in violation of
Miller. Id. at 382. The reviewing court
therefore remanded the matter for resentencing so that the
trial court could exercise its discretion in light of
Miller. Id. at 383.
[¶19] In arguing that the defendant's
sentence is not unconstitutional, the State relies on
People v. Gay, 2011 IL App. (4th) 100009, 960 N.E.2d
1272, 356 Ill.Dec. 149 . In Gay, the defendant had
accumulated 16 aggravated-battery convictions over a number
of years while imprisoned, all as a result of behavior toward
corrections officers. Id. ¶ 4. This resulted in
97 years of consecutive sentences. Id. The defendant
filed a postconviction petition in a case involving one of
the charges, arguing that his aggregated sentences were cruel
and unusual as they amounted to a de facto
life-without-parole sentence. Id. ¶ 19. The
defendant contended that this violated Graham
because, as a sufferer of mental illness, he belonged to a
less culpable class of persons. Id.
[¶20] The reviewing court determined that
Graham' s ban on life-without-parole sentences
for juvenile nonhomicide offenders applied to such sentences
only when tied to a single conviction. It did not apply to
the defendant's accumulation of sentences. Id.
¶ 23. The reviewing court further noted that it found
unpersuasive the defendant's " unstated premise
that, after he had accumulated some unspecified duration of
consecutive prison sentences, the Constitution prohibited the
State from punishing any further crimes defendant
committed." Id. ¶ 24. The reviewing court
held that the eighth amendment " allow[ed] the State to
punish a criminal for each crime he commits, regardless of
the number of convictions or the duration of sentences he has
already accrued." Id. ¶ 25. Finally, the
reviewing court found unpersuasive the defendant's
comparison between juvenile defendants and mentally ill
defendants. Id. ¶ 29. The reviewing court
determined that there was no national consensus against
punishing mentally ill persons as severely as others and that
case law did not support a finding of lessened culpability of
mentally ill offenders. Id.
[¶21] Gay is clearly
distinguishable from the present case. Gay did not
involve a juvenile--the Gay court itself rejected
the defendant's comparison between juvenile and mentally
ill defendants--and the aggregate sentence was based on
repeated offenses that took place over a number of years.
Nonetheless, the Gay court rejected the argument
that Graham extended to an aggregate term-of-years
sentence that was a " de facto" sentence
of life without parole. Id. ¶ 23.
[¶22] In Patterson, the defendant
argued that the combination of the automatic transfer statute
and the applicable sentencing statutes was unconstitutional
as applied to him because, as a nonhomicide offender, he was
less deserving of more serious forms of punishment.
Patterson, 2014 IL 115102, ¶ 107. In rejecting
this argument, our supreme court noted that both it and the
United States Supreme Court have limited the application of
the rationale expressed in Roper, Graham, and
Miller to those cases involving " the most
severe of all criminal penalties," namely, the death
penalty or a sentence of life without parole. Id.
¶ ¶ 108, 110. The court found that " [a]
prison term totaling 36 years for a juvenile who personally
committed three counts of aggravated criminal sexual assault
does not fall into that category." Id. ¶
110. The court thus declined to extend the Supreme
Court's eighth amendment rationale to the facts of that
case. Id. Recently, in People v. Cavazos,
2015 IL App. (2d) 120171, ¶ 99, this court held that
Miller did not extend to the defendant's 75-year
sentence, which was based on the aggregation of sentences for
first degree murder and attempted first-degree murder.
[¶23] In the present case, the defendant was
sentenced to an aggregate term of 97 years' imprisonment.
As in Patterson and Cavazos, we decline to
extend the eighth amendment rationale in Miller to
the facts of this case. Once again, the defendant did not
receive the most severe of all possible penalties, such as
the death penalty or life without the possibility of parole.
Rather, he received an aggregate term-of-years sentence.
Unlike the Miller defendants, who were sentenced to
life without parole based on single murder convictions, the
present defendant received consecutive term-of-years
sentences based on multiple counts and multiple victims.
Here, the defendant was convicted of discharging a firearm
that killed one person and attempting to murder two others.
Based on these distinguishing facts, the defendant's
sentence does not violate Miller.
[¶24] We acknowledge that there is a split
of authority on this issue, as demonstrated by the
defendant's reliance on Thomas. Compare
Thomas, 150 Cal.Rptr.3d at 382, Bear Cloud v.
State, 2014 WY 113, ¶ 33, 334 P.3d 132 (Wyo. 2014)
(extending Miller rationale to aggregate sentence
that was the functional equivalent of life without parole),
and State v. Null, 836 N.W.2d 41, 70-71 (Iowa 2013)
(same), with State v. Brown, 2012-0872, pp. 14-15
(La. 5/7/13); 118 So.3d 332 (holding that Graham did
not preclude aggregate fixed-term
sentence, based on multiple convictions, that exceeded the
juvenile defendant's life expectancy), Bunch v.
Smith, 685 F.3d 546, 552 (6th Cir. 2012) (holding that
Graham did not apply to an 89-year sentence
resulting from consecutive fixed-term sentences for multiple
nonhomicide offenses), and State v. Kasic, 228 Ariz.
228, 265 P.3d 410, 414-15 (Ariz. Ct.App. 2011) (holding that
Graham was limited to sentences of " life
without parole" ).
[¶25] Nonetheless, we conclude that an
expansion of the holding in Miller to the facts of
this case would result in confusion and uncertainty. See
Bunch, 685 F.3d at 552 (questioning what number of
years might or might not constitute a de facto life
sentence, whether race, gender, or socioeconomic status would
have to be considered, and whether the number of crimes would
matter). We recognize that, due to their inherent
differences, there is an evolving trend to treat juvenile
offenders differently from adult offenders. See
Cavazos, 2015 IL App. (2d) 120171, ¶ 96.
Indeed, our supreme court or the United States Supreme Court
may ultimately expand the Graham and Miller
precedents to de facto life sentences. However,
based on current precedent, including our supreme court's
most recent pronouncement in Patterson, we decline
to extend the rule in Miller to the facts in this
[¶27] For the foregoing reasons, the
judgment of the circuit court of Kendall County is affirmed.