Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County, No. 12-CR-19490; the
Hon. Thaddeus L. Wilson, Judge, presiding.
Michael J. Pelletier, Patricia Mysza, and Meredith N. Baron,
of State Appellate Defender's Office, of Chicago, for
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg, Tasha Marie Kelly, Kathryn A. Schierl, and Mary P.
Needham, Assistant State's Attorneys, of counsel), for
JUSTICE LAMPKIN delivered the judgment of the court, with
opinion. Justices Gordon and Burke concurred in the judgment
1 Following a jury trial, defendant, Drashun Wilson, was
found guilty of attempted first degree murder and aggravated
battery with a firearm. The jury found that, during the
attempted first degree murder, defendant personally
discharged a firearm and proximately caused great bodily
harm. Defendant was 17 years old at the time of the offense.
He was subject to the 25-years-to-life firearm enhancement
(720 ILCS 5/8-4(a), (c)(1)(D) (West 2012)) and was sentenced
to the mandatory minimum 31 years' imprisonment. On
appeal, defendant contends (1) the newly enacted Public Act
99-69 (eff. Jan. 1, 2016) has retroactive application and
entitles him to remand for a resentencing hearing, (2) the
exclusive jurisdiction statute violates the eighth amendment,
and (3) the 25-year mandatory firearm enhancement and
truth-in-sentencing provision violate the eighth amendment
and proportionate penalties clause. Based on the following,
3 Briefly stated, the trial evidence demonstrated that, in
the afternoon of September 23, 2012, defendant was with at
least one other male near 59th Street and Wabash Avenue in
Chicago, Illinois, when he raised a handgun and shot toward
59th Street. Defendant was wearing a blue Cubs jacket, a
black skull cap, and blue jeans. At the time, Alvin Thomas
was standing next to the alley adjacent to his apartment
building located at 5927 South Wabash Avenue. Thomas observed
the shooting. The State introduced video surveillance footage
of the location and date in question. Thomas identified
defendant as the individual on the video raising his hands
and shooting and then turning and running down the alley.
4 Floyd Fulton also testified that he was walking near 59th
Street and Wabash Avenue at the time in question. When Fulton
arrived at the alley of 59th Street, he observed "some
little kids playing" in the alley. Fulton then observed
an individual point at him. According to Fulton, he heard
"bang, bang, bang" and saw "a little flash,
" so he ran down 59th Street toward Wabash Avenue. While
running, Fulton felt something hot on his tongue and, after
spitting an object out of his mouth, discovered that he was
"bleeding compulsively." The police arrived minutes
later and Fulton was transported to the hospital for
treatment of a gunshot wound to the left cheek, which
resulted in "comminuted fractures" of the middle
and back corner of the sinus and skull bone.
5 Fulton was not able to identify the perpetrator of the
offense, but Thomas positively identified defendant as the
shooter during a show-up identification. Defendant was
arrested and transported to the police station. A discharged
bullet was recovered from the scene and defendant's hands
tested positive for gunshot residue. Defendant later provided
an incriminating police statement.
6 Assistant State's Attorney Sarah Karr testified that
defendant agreed to provide a typed statement. In his
statement, defendant provided that, around 2:30 p.m. on
September 23, 2012, he was with some friends in the
neighborhood. He did not possess a weapon at the time;
however, while they were walking in an alley near 59th Street
and Wabash Avenue, someone named "Inkey" handed him
a loaded handgun. As defendant walked down the alley, he
observed an individual wearing all black pass the alley and
"then c[o]me back and [start] looking down the alley at
[defendant] and the group of people he was with."
According to the statement, defendant was instructed by his
friends to shoot the individual. Defendant stated that he had
never shot a gun prior to the date in question, so he used
both hands and aimed at the individual. Defendant shot the
gun four times. Defendant stated that the individual ran, as
did everyone in defendant's group. Defendant ran down the
alley toward Wabash Avenue, at which point "he just
threw the gun and kept going."
7 Defendant testified at trial that the typed police
statement was false, denying any involvement in the shooting.
Defendant acknowledged that, on the date in question, he was
wearing a Cubs jacket and black skull cap. Defendant
additionally acknowledged that the individual in the
surveillance video also wore a Cubs jacket and black skull
cap, but he denied that the individual in the video was him.
8 As stated, the jury found defendant guilty of attempted
first degree murder, during which he personally discharged a
firearm and proximately caused great bodily harm, and
aggravated battery with a firearm. In subsequently sentencing
defendant to the statutory minimum of 31 years'
imprisonment on the attempted first degree murder count (the
aggravated battery with a firearm count merged therein), the
trial court stated that it considered:
"the evidence at trial, the gravity of the offense, the
presentence investigation report, the financial impact of
incarceration, all evidence, information, and testimony in
aggravation and mitigation, any substance abuse issues and
treatment, the potential for rehabilitation, the possibility
of sentencing alternatives, and all hearsay presented deemed
relevant and reliable."
timely appeal followed.
10 I. Public Act 99-69
11 Defendant first contends he is entitled to have his case
remanded to the trial court for a resentencing hearing
pursuant to the recently enacted Public Act 99-69. More
specifically, defendant argues that Public Act 99-69, which
became effective on January 1, 2016, should be applied
retroactively to his case because its effective date was
after his sentencing but while his appeal was pending.
12 Public Act 99-69 provides:
"(a) On or after the effective date of this amendatory
Act of the 99th General Assembly, when a person commits an
offense and the person is under 18 years of age at the time
of the commission of the offense, the court, at the
sentencing hearing conducted under Section 5-4-1, shall
consider the following additional factors in mitigation in
determining the appropriate sentence:
(1) the person's age, impetuosity, and level of maturity
at the time of the offense, including the ability to consider
the risks and consequences of behavior, and the presence of