People v. Foxx

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of Cook County, Illinois, Criminal Division. No. 97 CR 20768 The Honorable James Michael Obbish, Judge Presiding. PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.

OPINION

¶ 1 After a jury trial, the defendant, Darnell Foxx, was convicted of two counts of first degree murder and two counts of aggravated battery with a firearm. The defendant, who was 15 years old at the time he committed the crime, was sentenced to two terms of life imprisonment, followed by two consecutive 30-year prison terms. After the defendant's conviction was affirmed on direct appeal (People v. Foxx, No. 1-00-0387 (Feb. 18, 2003) (unpublished order pursuant to Illinois Supreme Court Rule 23) (Foxx I)), the defendant filed a pro se postconviction petition. While that petition was pending before the trial court, the United States Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012), and our supreme court decided People v. Davis, 2014 IL 115595. Based on these two decisions, the trial court vacated the defendant's original sentence and ordered a new sentencing hearing. ¶ 2 After new evidence was presented at that sentencing hearing, the defendant was sentenced to two concurrent 45-year prison terms for each first degree murder conviction, followed by two consecutive 14-year prison terms for the aggravated battery with a firearm convictions. The defendant appeals, contending that (1) he was denied his right to effective representation when his attorney failed to seek a discretionary transfer hearing to juvenile court under the 2016 amendments to the Juvenile Court Act of 1987 (Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a)(i))), which became effective prior to his resentencing hearing and which would have excluded a 15-year-old charged with murder from the class of juvenile offenders subject to automatic transfer to adult court, and (2) the trial court abused its discretion in sentencing him by placing too much emphasis on deterrence and ignoring the mitigating circumstances of his traumatic childhood. For the reasons that follow, we affirm.

¶ 3 I. BACKGROUND

¶ 4 Since on direct appeal we already presented all of the facts of this case, we now merely summarize the trial record and set forth only those facts and procedural history necessary to the resolution of issues in this appeal. ¶ 5 After his arrest on June 25, 1997, the defendant and four other codefendants were charged with numerous crimes stemming from his involvement in the June 22, 1997, drive-by shooting, which resulted in the death of two victims—Salada Smith (Salada) and Joshua Thomas (Joshua)—and the wounding of two others. ¶ 6 The defendant was tried in a simultaneous, but separate, jury trial with one of the two murder convictions, followed by two consecutive 14-year prison terms for aggravated battery with a firearm. The court noted that the aggregate total sentence was 73 years. With good behavior, the sentence could be served at 50%. Therefore, the defendant could be released from prison at age 51. ¶ 27 In issuing the sentence, the trial court, inter alia, acknowledged that the defendant was 15 years old at the time the crimes were committed and that under the current sentencing laws, a judge must "consider the chronological age of the offender, hallmark features of youth, including their past history, their failure to appreciate risks and consequences, [and] *** their home environment." ¶ 28 The court then commented on the defendant's potential for rehabilitation, stating that the defendant had shown "serious potential." The court explained that this potential had been limited by a lack of resources from the IDOC, but that since the Miller decision, the IDOC had made greater resources available and the defendant had taken advantage of them. The court further found relevant that the defendant had "shown and taken some positive steps" in joining a program consistent with his stated ambition to help keep youth from gangs. It also noted the defendant's good behavior in prison, as well as his sincerity in allocution. ¶ 29 Nonetheless, the court emphasized that the crimes resulted from the defendant's own poor choices. As the court explained:

"[G]iven all we have learned about [him] from the lengthy interviews that [t]he expert witnesses testified to, [the defendant] still made some rather terrible choices, obviously, in [his] life. And they were choices.
People still have a choice. The environment can be terrible and it can have this war zone or environment described by the witnesses, but not everybody succumbs. Some people have

common sense and morals and they can tell from the beginning what's right and what is wrong.
[The defendant] made a rather desired choice that struck me as I have prepared for the sentencing hearing. [He] joined a gang. And the name of the gang that [he] joined probably should have told anybody something even if they were juveniles. When you join a gang who go by the name of Insane Vice Lords, one of the words might say well, it will be—Every one of those things connotated just an anti-social and a destructive organization.
Need I say more? Insane. Well, there's something, you know, I want to be involved in an organization and I am going to call myself Insane Vice and a Lord. I am going to be the master of my domain. Vice is the least offensive of the terms. Some choices were made, and juveniles make these choices without the benefit of the wisdom that hopefully an adult would have, but still it was a matter of free choice. It was a matter of free choice to decide to engage in a revenge attack on another individual. And it doesn't matter if it was a spur of the moment decision."

¶ 30 The court finally emphasized that in order to stop gangs from using juveniles to "do their dirty work" and continue to "wreak havoc on society," it had given serious consideration to the deterrent effect of the defendant's sentence. ¶ 31 After the court issued its sentence, the defendant moved for reconsideration, arguing that the sentence was excessive in light of the mitigating circumstances of youth that must be considered under Miller. The trial court denied that motion, and the defendant now appeals.

The defendant's sentencing hearing was held simultaneously with that of his codefendant, and cousin, Ivory. --------

¶ 32 II. ANALYSIS

¶ 33 On appeal, the defendant makes two contentions. He first argues that his counsel at resentencing was ineffective for failing to request that his cause be transferred to juvenile court under the 2016 amendments to the Juvenile Court Act (Act). See Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130 (1)(a)(i)). Second, he asserts that the trial court abused its discretion in sentencing him to an aggregate of 73 years' imprisonment, by placing too much emphasis on deterrence and ignoring the mitigating circumstances of his childhood. We address each of the defendant's contentions in turn.

¶ 34 A. Ineffective Assistance of Counsel

¶ 35 We begin with the defendant's contention regarding counsel's ineffectiveness. It is axiomatic that every defendant has a constitutional right to the effective assistance of counsel. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Claims of ineffective assistance of counsel are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984); see also People v. Lacy, 407 Ill. App. 3d 442, 456 (2011); see also People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland )). According to Strickland, in order to prevail on a claim of ineffective assistance of counsel, a defendant must establish both (1) that his counsel's conduct fell below an objective standard of reasonableness under prevailing professional norms and (2) that he was prejudiced by counsel's conduct, i.e., that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. See Lacy, 407 Ill. App. 3d at 456; see also People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94); see also People v. Domagala, 2013 IL 113688, ¶ 36. Failure to establish either prong of the Strickland test precludes a finding of ineffective assistance of counsel. See People v. Henderson, 2013 IL 114040, ¶ 11; see also People v. Patterson, 217 Ill. 2d 407, 438 (2005). ¶ 36 The defendant here contends that he was denied his right to effective representation where defendant here was 34 years old at the time of his resentencing, transfer to juvenile court would have proven impracticable because the juvenile court would no longer have had authority to proceed against him under the Act. Id. We believe that this is what the supreme court meant in Hunter when it improvidently stated that the juvenile court may not exercise "jurisdiction" over an adult defendant. ¶ 46 Given that, under Hunter, the defendant's cause could not have been transferred to juvenile court under the 2016 amendments to the automatic transfer provision, the defendant has failed to establish prejudice and his ineffective assistance of counsel claim must fail.

¶ 47 B. Abuse of Discretion

¶ 48 The defendant next contends that the trial court abused its discretion when it sentenced him to an aggregate of 73 years' imprisonment, by placing too much emphasis on deterrence and ignoring the mitigating circumstances of his childhood. For the reasons that follow, we disagree. ¶ 49 It is well established that the trial court is the proper forum to determine a sentence and that a sentencing decision is entitled to great deference and weight. People v. Alexander, 239 Ill. 2d 205, 212 (2010). The reason for such deference is that the trial judge, "having observed the defendant and the proceedings, is in a much better position to consider factors such as the defendant's credibility, demeanor, moral character, mentality, environment, habits, and age." People v. Snyder, 2011 IL 111382, ¶ 36. Therefore, a sentence that falls within the appropriate statutory range will not be disturbed absent an abuse of discretion. People v. Coleman, 166 Ill. 2d 247, 258 (1995). Such abuse occurs only when the sentence varies greatly from the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. Snyder, 2011 IL 111382, ¶ 36. ¶ 50 A sentence should reflect both the seriousness of the offense and the objective of restoring defendant's age and immaturity, his difficult upbringing, and his laudable efforts at rehabilitation. While we may find the 73-year sentence objectionable, and may have imposed a sentence far closer to the minimum range, we are constricted by our standard of review and are not at liberty to reweigh any sentencing factors, as the defendant would have us do. See Alexander, 239 Ill. 2d at 213. The sentence before us is neither greatly at variance with the spirit and purpose of the law nor manifestly disproportionate to the nature of the offense. Id. Accordingly, under the record below, we are compelled to conclude that the trial court did not abuse its discretion.

¶ 53 III. CONCLUSION

¶ 54 For the aforementioned reasons, we affirm the judgment of the circuit court. ¶ 55 Affirmed.