People v. Joiner

PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.

Illinois Official Reports Appellate Court

Decision Under Review Appeal from the Circuit Court of Cook County, No. 12-CR-13176; the Hon. Vincent M. Gaughan, Judge, presiding. Judgment Affirmed in part, vacated in part, and remanded. Counsel on Appeal Michael J. Pelletier, Patricia Mysza, and Michael H. Orenstein, of State Appellate Defender's Office, of Chicago, for appellant. Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Dylan Rakestraw, Assistant State's Attorneys, of counsel), for the People. Panel PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
Justices Lampkin and Rochford concurred in the judgment and opinion.

OPINION

¶ 1 After a bench trial, 16-year-old defendant Antuan Joiner was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2012)) and two counts of attempted murder (720 ILCS 5/8-4(a) (West 2012)) and was sentenced to 71 years' imprisonment in the Illinois Department of Corrections. On appeal, defendant contends his trial counsel provided ineffective assistance by failing to move to suppress suggestive photo array and lineup identifications. Defendant also contends that the State failed to prove beyond a reasonable doubt that he was the perpetrator of the offense and that his due process rights were violated when the trial court improperly shifted the burden of proof. Defendant further maintains that his sentence is unconstitutional under Miller v. Alabama, 567 U.S. 460 (2012), and that the new juvenile sentencing provisions, making firearm enhancements discretionary, apply retroactively, requiring this matter to be remanded for resentencing. For the reasons that follow, we affirm the judgment of the circuit court finding defendant guilty of murder and attempted murder, but remand the matter for resentencing.

¶ 2 BACKGROUND

¶ 3 Defendant was charged by indictment in pertinent part with the first degree murder of Shakaki Asphy (Asphy) and the attempted murders of Leon and Thomas Cunningham. The indictment alleged that on June 16, 2012, defendant personally discharged a firearm in the direction of the victims and that defendant's actions caused the death of Asphy as well as serious injury to Leon. Defendant, who was 16 years old at the time of the offense, was prosecuted as an adult (see 705 ILCS 405/5-130(1)(a)(i) (West 2012)). The matter then proceeded to a bench trial. ¶ 4 Leon Cunningham testified as follows. On June 16, 2012, he was 18 years old and a member of the Gangster Disciples, "70th Set" (a faction within the Gangster Disciples street gang). He was also bound to a wheelchair because he is paralyzed from the waist down. At 7 p.m., he was socializing with friends, including Thomas and Asphy, outside an abandoned building on the 2000 block of West 70th Place when he observed a gray vehicle drive past. Leon testified that he observed defendant, who he knew by the nickname "Monkey Man," inside the vehicle. Leon explained that while he did not know defendant personally, he had seen him around the neighborhood and was aware defendant was a member of the "D-Block" faction of the Gangster Disciples. According to Leon, when the vehicle drove past, he felt something was "wrong," but nevertheless remained outside the house. ¶ 5 Shortly thereafter, everyone except Leon, Thomas, and Asphy left. Leon was in his wheelchair at the base of the porch stairs, Thomas was standing at the top of the stairs, and Asphy was perched on the porch railing near the top of the stairs. Suddenly, Leon observed a man wearing a black hooded sweatshirt, with the hood drawn over his head, appear in the east-side gangway of the abandoned building, holding a firearm. Leon identified this individual as defendant, who he continued to refer to by his nickname, "Monkey Man." Leon testified he was 10 or 15 feet away from defendant when defendant began shooting. Leon further testified that he had a clear view of the weapon, which he identified as a semiautomatic "9" with an "extended clip." As defendant fired his weapon, Thomas ran from the porch. With nowhere to go, Leon remained at the base of the porch. convictions for attempted murder would run concurrently. As a result, defendant was sentenced to a mandatory minimum aggregate sentence of 71 years' imprisonment. Further, in light of the truth-in-sentencing statute (730 ILCS 5/3-6-3 (West 2012)), defendant would be required to serve a minimum of 66 years of the 71-year sentence imposed before he would be eligible for release. Defendant appealed.

When Thomas first references defendant, the trial transcript indicates he said "Money Man came through the gangway." Thereafter, Thomas refers to defendant as "Monkey Man." --------

¶ 32 ANALYSIS

¶ 33 Defendant raises five contentions on appeal that (1) his counsel was ineffective for failing to file a motion to suppress the pretrial identifications of him as the shooter, (2) the State failed to prove beyond a reasonable doubt that he was the perpetrator of the offense, (3) his due process rights were violated when the trial court improperly shifted the burden of proof requiring him to prove his innocence, (4) his sentence is unconstitutional, and (5) the new juvenile sentencing provisions—making firearm enhancements discretionary—apply retroactively, and thus the matter must be remanded for resentencing in accordance with the new statutory guidelines. We address each contention in turn.

¶ 34 Ineffective Assistance of Counsel

¶ 35 Defendant first argues that his counsel was ineffective for failing to move to suppress the photographic and lineup identification evidence. Defendant maintains that the procedures employed during the identifications were suggestive. Defendant asserts that in the photo array, his was the only image that was depicted on a red background, and he was the only individual whose hair was styled in short braids. Regarding the lineup, defendant contends that it too was improper where he was the only individual included with "dark skin" and short braids. Defendant concludes that because a motion to suppress identification evidence in this instance had merit, defense counsel was ineffective for failing to present one to the trial court. ¶ 36 In response, the State asserts that defendant's trial counsel was not ineffective where a pretrial motion to suppress the identification evidence would have been futile, since the identification procedures were not unduly suggestive. The State further argues that Leon and Thomas were both eyewitnesses to the crime and their identifications were independently reliable. Thus, defendant was not prejudiced where the trial outcome would not have been any different had the evidence been suppressed. ¶ 37 A defendant has a sixth amendment right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. An accused is entitled to capable legal representation at trial. People v. Wiley, 165 Ill. 2d 259, 284 (1995). To establish a claim of ineffective assistance of counsel, a defendant must prove both (1) deficient performance by counsel and (2) prejudice to defendant. People v. Smith, 195 Ill. 2d 179, 187-88 (2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To satisfy the first prong of the Strickland test, a defendant must demonstrate his counsel's performance fell below an objective standard of reasonableness, as measured by prevailing norms. Smith, 195 Ill. 2d at 188. "To establish deficient performance, the defendant must overcome the strong presumption that counsel's action or inaction was the result of sound trial strategy." People v. Perry, 224 Ill. 2d 312, 341-42 (2007). To satisfy the second prong, prejudice is demonstrated if there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. People v. Albanese, 104 Ill. 2d 504, 525 (1984); People v. Echols, 382 Ill. App. 3d 309, 312 (2008). The failure to satisfy either the deficiency immediately identify defendant as the shooter, but did so when the detectives interviewed him two days after the offense occurred. ¶ 54 After weighing each factor, we conclude Leon and Thomas viewed the shooter under circumstances permitting a positive identification. We observe that, "[n]ormally, the [trier of fact] decides the weight that an identification deserves, and the less reliable the [trier of fact] finds the identification to be, the less weight the [trier of fact] will give it." People v. Rodriguez, 387 Ill. App. 3d 812, 829 (2008) (citing People v. Ramos, 339 Ill. App. 3d 891, 897 (2003)). Here, the trial court was the trier of fact and had the opportunity to determine the credibility of the witnesses and the weight to be given to their testimony. People v. Jackson, 232 Ill. 2d 246, 281 (2009). The trial court weighed the evidence and found that Leon and Thomas's identifications were reliable. We cannot say, when viewed in the light most favorable to the State, that the identification of defendant as the shooter was insufficient, and we will not substitute our judgment for that of the trial court in regard to the reliability or weight of the identification. As the victims had an independent basis for making their identifications, defendant was not prejudiced by trial counsel's failure to move to suppress the photo array identification; thus, defendant's claim for ineffective assistance of counsel fails for this reason as well.

¶ 55 Sufficiency of the Evidence

¶ 56 Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt where the only evidence linking him to the crime was the identification testimony of Leon and Thomas, who were not credible. Defendant further asserts that the State failed to meet its burden of proof where the DNA evidence did not demonstrate defendant participated in the offense, the State failed to prove motive, and the witnesses viewed a suggestive photo array and lineup. ¶ 57 The State responds that it was within the province of the trial court to determine the credibility of the witnesses and that this court may not independently assess Leon's and Thomas's credibility. In addition, the State maintains that the DNA evidence does not exonerate defendant where the trial stipulation provided that it is possible to wear a garment or handle a weapon and not leave enough DNA to be detected. Lastly, the State argues that the photo array and lineup were not improper because Leon and Thomas independently identified defendant as the shooter prior to identifying defendant in the photo array or lineup. ¶ 58 When reviewing the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Washington, 2012 IL 107993, ¶ 33. On review, all reasonable inferences from the evidence are drawn in favor of the State. People v. Martin, 2011 IL 109102, ¶ 15. The reviewing court will not retry the defendant or substitute its judgment for that of the trier of fact on questions involving the weight of the evidence, conflicts in the testimony, or the credibility of witnesses. Jackson, 232 Ill. 2d at 280. A defendant's conviction will be reversed only if the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant's guilt. Washington, 2012 IL 107993, ¶ 33. ¶ 59 Defendant here was convicted of first degree murder and attempted murder. A person commits first degree murder if, in performing the acts that cause a death, he or she either intends to kill or do great bodily harm to the victim or another individual, knows that the acts testifies). Accordingly, in view of the record and the credibility determinations, we cannot say the evidence was so improbable or unsatisfactory as to render the verdict unreasonable. ¶ 64 Next, defendant maintains that the lack of DNA evidence creates reasonable doubt that defendant was the shooter. While the DNA that was discovered on the baseball cap, hooded sweatshirt, and handgun excluded defendant as a source, the stipulated testimony established that it was possible for someone to wear or handle these items and not leave behind any DNA. Thus, although the DNA did not definitively identify defendant as the perpetrator of this offense, it did not exonerate him from it. See People v. Allen, 377 Ill. App. 3d 938, 944 (2007) (the absence of DNA evidence on a handgun would not exonerate the defendant). ¶ 65 Lastly, defendant asserts that the State failed to prove motive; however, the State was not required to prove motive in the first place. See, e.g., People v. Ward, 154 Ill. 2d 272, 320 (1992) (concluding that the prosecutor's explanation to the jury that he did not have to prove motive is a correct statement of the law, and was therefore entirely proper). ¶ 66 In sum, the evidence, viewed in the light most favorable to the State, demonstrates that a rational trier of fact could have found the essential elements of murder and attempted murder beyond a reasonable doubt. See Washington, 2012 IL App (1st) 107993, ¶ 33.

¶ 67 Due Process Violated

¶ 68 Defendant next asserts that the trial court shifted the burden of proof to him to prove his innocence, thereby violating his due process rights. Defendant acknowledges that he failed to properly raise this issue before the trial court, thus forfeiting his claim on appeal. Defendant, however, requests that this court review his claim under the plain-error doctrine. Illinois Supreme Court Rule 615(a) states that "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill. S. Ct. R. 615(a). The plain-error rule "allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). Defendant carries the burden of persuasion under both prongs of the plain-error rule. People v. Lewis, 234 Ill. 2d 32, 43 (2009). However, "[t]he first step of plain-error review is to determine whether any error occurred." Id. Therefore, we will review the issue to determine if there was any error before considering it under the plain-error doctrine. ¶ 69 It is well-established that a criminal defendant has a fundamental due process right to a fair trial that is protected by both federal and state constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. In a bench trial, the circuit court judge is the trier of fact, and as such, is required to consider all of the evidence before rendering its decision. People v. Williams, 2013 IL App (1st) 111116, ¶ 75. When a bench trial is conducted, the trial court is presumed to have considered only competent evidence, and that presumption will only be rebutted by affirmative evidence in the record. People v. Simon, 2011 IL App (1st) 091197, ¶ 91. Accordingly, where there is affirmative evidence in the record that the circuit court failed to correctly recall and consider evidence critical to fully understand and evaluate a criminal defendant's defense strategy at trial, the defendant is deprived of his right to a fair trial. People v. Mitchell, 152 Ill. 2d 274, 323 (1992); Williams, 2013 IL App (1st) 111116, ¶ 75. Whether a criminal defendant's due process rights have been violated presents an issue of law, and is thus subject to de novo review. People v. Stapinski, 2015 IL 118278, ¶ 35. ¶ 70 In a criminal proceeding, the State has the burden of proving each element of the offense beyond a reasonable doubt, and this burden never shifts to the defendant. People v. Cameron, 2012 IL App (3d) 110020, ¶ 27. The defendant is presumed innocent of the charges against him and does not have to prove his innocence, testify, or present any evidence. Id. The trial court's efforts to test, support, or sustain the defense's theories, however, cannot be viewed as diluting the State's burden of proof or shifting that burden to the defendant. People v. Howery, 178 Ill. 2d 1, 35 (1997); Cameron, 2012 IL App (3d) 110020, ¶ 28. The court may comment on the implausibility of the defense's theories, as long as it is clear from the record that the court applied the proper burden of proof in finding the defendant guilty. Howery, 178 Ill. 2d at 34-35. The trial court is presumed to know the law, including the allocation of the burden of proof, and to apply it properly, absent a strong affirmative showing to the contrary in the record. Id. at 32-33. ¶ 71 In support of his contention, defendant relies on the following remarks made by the trial court in delivering the guilty verdict. The allegedly erroneous remarks are italicized for emphasis, but are presented in context:

"Thank you. I observed the witnesses while testifying. I watched their demeanor and listened to the arguments and reviewed the stipulations that have been agreed.
Concerning the DNA, the DNA certainly could include somebody in these cases. But as far as what I am looking, it says—this is on stipulation Number 76, Ms. Belna would testify that Matthew Smith cannot be excluded as a donor of the mixture of the DNA profiles on the cap.
This means he is included as a possible donor to the mixture identified on the cap. The chances a random person would be included to this mixture are 1 in 6 Blacks. That means out of—if you took the number 600, 100 Blacks would be included in that number.
If you took the Whites, if you looked at 230, then you would have 23 out of that approximately. So I mean, these DNA figures are just really meaningless as to proving Mr. Smith was the culprit in this case.
As to the DNA, the DNA concerning Mr. Joiner, he certainly was excluded but exclude [sic] for having biological material on the hat, the gun and the gray hooded sweatshirt but that doesn't mean that he wasn't there.
There are [sic] part of the stipulation is that people can handle a weapon without leaving a fingerprint, etc. So those possibilities exist. It does come down to credibility of the witnesses of Thomas and Leon Cunningham.
First off, there has been no interest or bias shown as far as why Mr. Leon Cunningham would say that Mr. Joiner was the one that shot him. He was on the porch. Remember she [sic] says, the seventies was [sic] not having problems with D Block. That was his portion of the gang. But the fact that very shortly after the shooting, Leon Cunningham comes up with the name Monkey Man.

One of the conclusions and there are probably many is that if he wanted to put this on Mr. Joiner with no other reason and Mr. Joiner wasn't there, how would he know that Mr. Joiner didn't have an alibi or Mr. Joiner wasn't in town or things to that effect.
The next thing was the cross examination [sic] and it was very strenuous of Thomas Cunningham. Leon Cunningham said that he did talk to his brother three days after the shooting. Thomas Cunningham said they talked sooner and I saw my brother before the lineup. We didn't talk about any shooting at the hospital.
So there's no—has been argued and proffered by the defense, there's no independent showing that there was a connection that Leon had directly influenced Thomas in his identification process.
The identification processes were there and there are some inconsistencies but they are not of a major group to render the testimony of Leon Cunningham and Thomas Cunningham as unbelievable." (Emphases added.)

¶ 72 In the present case, we find the record lacks affirmative proof that the trial court erroneously shifted the burden of proof to defendant. In reaching its decision, the trial court specifically addressed defendant's evidence and theories, that being the credibility of Leon and Thomas, the DNA evidence, and the theory that Leon had instructed Thomas to identify defendant as the perpetrator. The record demonstrates that the trial court thoroughly considered and tested defendant's theories, which included the argument that the lack of DNA evidence exonerated him. See Cameron, 2012 IL App (3d) 110020, ¶ 28 ("The trial court is free to comment on the implausibility of the defense's theories, as long as it is clear from the record that the trial court applied the proper burden of proof in finding the defendant guilty."). The trial court further addressed defendant's attack on the credibility of Leon and Thomas and their identification of him as the shooter, finding (1) there was no evidence presented demonstrating Leon influenced Thomas's identification of him and (2) there were some inconsistencies between their testimonies, it was not enough to render their testimony completely unbelievable. See Howery, 178 Ill. 2d at 34-35. Here, defendant appeals from a bench trial, where the trial court served as the trier of fact. The trial court may draw or reject inferences based on the evidence and is presumed to know the law. Id. at 32-33. The record is clear that the trial court knew and properly applied the burden of proof and its comments do not support a claim that it erroneously shifted the burden to defendant. Having determined that no error occurred, we need not consider further the parties' arguments on this issue about forfeiture and plain error.

¶ 73 The Constitutionality of Defendant's Sentence

¶ 74 Defendant argues his sentence of 71 years' imprisonment violates 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 applied to him. ¶ 75 The applicable sentencing statutes mandated that the trial court add firearm enhancements to his sentences for murder and attempted murder, that his murder and attempted murder sentences be served consecutively, and that he must serve the entire murder sentence and 85 percent of the attempted murder sentence. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012) (25 years to be added to murder sentence if firearm used proximately causes death or great bodily harm); 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2012) (20 years to be added to attempted murder sentence if firearm used); 730 ILCS 5/5-8-4(d)(1) (West 2012) (murder and attempted murder 141744, ¶ 52); see also People v. Jackson, 2016 IL App (1st) 143025, ¶ 57 (recognizing that appellate courts "need a consistent and uniform policy on what constitutes a de facto life sentence"). But ultimately, the court found the defendant's 50-year sentence was a de facto life sentence, as he would not have a "meaningful opportunity for release." Buffer, 2017 Il App (1st) 142931, ¶ 62. ¶ 87 In so concluding, the Buffer court, like the court in People v. Sanders, 2016 IL App (1st) 121732-B, ¶ 26, took judicial notice of the U.S. Sentencing Commission Preliminary Quarterly Data Report, which indicated that "a person held in a general prison population has a life expectancy of about 64 years and that this estimate probably overstates the average life expectancy for minors committed to prisons for lengthy terms." (Internal quotation marks omitted.) Buffer, 2017 IL App (1st) 142931, ¶ 59. The Buffer court observed that this proposition was also adopted by the appellate court in Harris. See Harris, 2016 IL App (1st) 141744, ¶¶ 53-54 (agreeing with Sanders that the lower life expectancy of minors committed to prison for lengthy terms was "[n]ot surprising, given the harshness of a lifetime spent in a state penitentiary"). The Buffer court further noted that "while our supreme court has not yet attempted to delineate what constitutes a lifetime, in finding de facto life sentences unconstitutional, it relied heavily on the reasoning of the Wyoming Supreme Court in Bear Cloud v. State, 2014 WY 113, ¶ 33, 334 P.3d 132 (Wyo. 2014)," which "explicitly found that an aggregate 45-year sentence imposed on a 16-year-old triggered the eighth amendment's prohibition against mandatory life sentences." Buffer, 2017 IL App (1st) 142931, ¶ 61 (citing Bear Cloud, 2014 WY 113, ¶¶ 31-37). ¶ 88 While the Buffer court ultimately determined the 16-year-old defendant's 50-year sentence was a mandatory de facto life sentence, the case before us is much stronger. Here, defendant was 16 years old when he committed the offenses and was sentenced to 71 years' imprisonment, with the possibility of being released in 66 years, making him 83 years of age on his projected parole date. An examination of similar cases involving mandatory de facto life sentences reveals that defendant's 71-year sentence compares favorably with other de facto life sentences. See People v. Nieto, 2016 IL App (1st) 121604, ¶ 42 (78-year sentence); Harris, 2016 IL App (1st) 141744, ¶ 54 (76-year sentence); People v. Ortiz, 2016 IL App (1st) 133294, ¶ 23 (60-year sentence, allowing release at age 75); Buffer, 2017 IL App (1st) 142931, ¶ 62 (50-year sentence, allowing release at age 69). Thus, in accordance with our case law, we conclude defendant's sentence, where he would be released at the earliest at age 83, is a mandatory de facto life sentence in violation of the eighth amendment. ¶ 89 Moreover, the record here demonstrates that the only evidence regarding defendant's youth, immaturity, or potential for rehabilitation trial court considered was contained in the presentencing investigation report. The record further discloses that the trial court rendered no express findings about defendant's specific characteristics of youth. As explained by our supreme court:

"A mandatory term-of-years sentence that cannot be served in one lifetime has the same practical effect on a juvenile defendant's life as would an actual mandatory sentence of life without parole—in either situation, the juvenile will die in prison. 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." (Emphasis added.) Reyes, 2016 IL 119271, ¶ 9.

¶ 90 In this case, the State's attorney did not request the maximum sentence (natural life in prison), but instead asked that defendant receive "a substantial sentence." In mitigation, defense counsel noted that defendant had no criminal history, strenuously denied defendant was a gang member, and emphasized the consistent support defendant received from his family throughout his trial. Defense counsel declined to raise any other arguments stating, "I can make arguments as indicated in the statute, the sentencing statute, as to his possibility of rehabilitation and all of those things and just frankly, Judge, seems useless when a sentencing minimum is so high." Thereafter, the trial court sentenced defendant to the minimum possible sentences. It is clear from the record that the mandatory firearm enhancements operated to tie the trial court's hands when sentencing defendant. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012); 720 ILCS 5/8-4(c)(1)(D) (West 2012). While we acknowledge that defendant was sentenced prior to the Reyes decision, it is apparent that the trial court was limited by the sentencing scheme and thus did not expressly consider the factors that the Miller court found to be imperative when sentencing a juvenile to a mandatory, unsurvivable prison term. See Miller, 567 U.S. at 480; Reyes, 2016 IL 119271, ¶ 9; Ortiz, 2016 IL App (1st) 133294, ¶¶ 23, 25 (the trial court must take into consideration the corresponding characteristics of youth as outlined in Miller and Montgomery when sentencing a defendant). Under these circumstances, where the Miller factors were not utilized in imposing a discretionary sentence of natural life without the possibility of parole, a juvenile defendant is entitled to relief. Nieto, 2016 IL App (1st) 121604, ¶ 49. Accordingly, defendant's sentence violated the eighth amendment of the United States Constitution. As we have concluded that defendant's sentence violated the eighth amendment, we need not address his argument that it violated the proportionate penalties clause of the Illinois Constitution. See Buffer, 2017 IL App (1st) 142931, ¶ 64.

¶ 91 New Sentencing Provisions for Juveniles

¶ 92 Lastly, defendant argues that the new sentencing provision—which states that the court "may, in its discretion, decline to impose any otherwise applicable sentencing enhancement based upon firearm possession, possession with personal discharge, or possession with personal discharge that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person"—applies retroactively, and thus the matter must be remanded for a new sentencing hearing. 730 ILCS 5/5-4.5-105(b) (West 2016). After defendant's brief was filed, our supreme court addressed the exact question at issue here in People v. Hunter, 2017 IL 121306, and definitively resolved the issue unfavorably to defendant's position. Defendant acknowledges this fact in his reply brief, conceding the argument. ¶ 93 Furthermore, as discussed above, we are remanding this matter for resentencing. Accordingly, where "a defendant's sentence is vacated on appeal and the matter remanded for resentencing, under section 4 of the Statute on Statutes [(5 ILCS 70/4 (West 2016))], the defendant may elect to be sentenced under the law in effect at the time of the new sentencing hearing." Id. ¶ 54.

¶ 94 CONCLUSION

¶ 95 For the reasons stated above, defendant's conviction is affirmed. Defendant's sentence, however, is vacated, and the matter is remanded to the circuit court for resentencing. ¶ 96 Affirmed in part, vacated in part, and remanded.