People v. Aceituno

2022 IL App (1st) 172116

216 N.E.3d 237

465 Ill.Dec. 986

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Manuel ACEITUNO, Defendant-Appellant.

No. 1-17-2116

Appellate Court of Illinois, First District, THIRD DIVISION.

March 30, 2022

James E. Chadd, Douglas R. Hoff, and Emily E. Filpi, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham and Douglas P. Harvath, Assistant State's Attorneys, of counsel), for the People.

JUSTICE McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Defendant Manuel Aceituno appeals the trial court's denial of his motion for leave to file his pro se successive postconviction petition. Relying on recent caselaw following the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and the evolving societal standards governing the sentencing of youthful offenders, defendant argues on appeal that he has established cause and prejudice for the filing of an as-applied challenge that his 48-year sentence is an unconstitutional de facto life sentence under both 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 ) because he was 18 years old at the time of the offense.

¶ 2 In September 1998, defendant and his codefendant, Paul Koroluk were charged by indictment with multiple counts of first degree murder, attempted first degree murder, and aggravated discharge of a firearm arising from the August 1, 1998, shooting death of Colin Ehlers. This court set forth the facts of this case in a previous Rule 23 order affirming the summary dismissal of defendant's initial postconviction petition. See People v. Aceituno , 353 Ill. App. 3d 1087 (2004) (table) (unpublished order under Illinois Supreme Court Rule 23 ). We incorporate that order by reference and repeat here only the facts needed to determine the issues before us.

¶ 3 Defendant's jury trial began in April 2000. After the testimony of two witnesses, defendant entered into an open plea agreement for one count of first degree murder. The evidence presented by the two witnesses

"established that on August 1, 1998, the victim, Colin Ehlers, was present at a birthday party when defendant and Koroluk, who were uninvited guests, appeared at the party. Koroluk walked over to the victim and a group of his friends and introduced himself. Sometime during the conversation Koroluk alleged that someone called him [a] ‘c***.’ While the victim was attempting to calm Koroluk, Koroluk pulled out a loaded gun and said to the victim ‘who is the tough guy now.’ As Koroluk pointed the gun at the victim, defendant approached the victim and ‘punched him in the face.’ Defendant then took the gun from Koroluk and began pointing it at the victim. A friend of the victim, John Macari, [testified that he] stepped in front of the victim and defendant ‘put the gun’ on Macari's head and shouted several times ‘I will kill you[,] you don't think I will kill you [?]’ Subsequently, defendant refocused his attention on the victim and stated that he was going to kill him, and aimed the gun at the victim's genitals. Defendant and Koroluk began walking backwards towards a fence and their car. When they reached the fence, defendant fired three shots at the group. Two of the bullets missed, but the third bullet entered the front of the victim's face just to the left of his nose, killing the victim. Defendant was arrested and confessed in a handwritten statement to being the person who fired the shots which killed the victim." Aceituno , slip order at 1-2.

In addition, Macari testified that he identified defendant in a lineup on August 2, 1998.

¶ 4 Following Macari's testimony, defendant informed the court that he wished to change his plea from not guilty to guilty. In exchange for defendant's plea of guilty to first degree murder, the State dismissed the remaining charges of attempted first degree murder and aggravated discharge of a firearm. The trial court observed that the parties previously had an Illinois Supreme Court Rule 402 (eff. July 1, 1997) conference and defendant had rejected the prior plea offer. The court accepted defendant's plea and ordered a presentence investigation report (PSI). The court further admonished defendant that it could sentence defendant to less time or more time than the sentencing offer of 45 years discussed at an earlier conference. The trial court then admonished defendant in accordance with Illinois Supreme Court Rule 402 (eff. July 1, 1997). The court asked defendant if any promises had been made to him regarding the sentence he could receive; defendant answered no. The court asked defendant if he understood that the sentencing range for first degree murder was 20 to 60 years, and defendant said he understood. The court further admonished defendant that he would be subject to three years of mandatory supervised release upon his release from prison. The court asked defendant if any threats were made to him to get him to plead guilty, and defendant answered in the negative. The court also asked if defendant understood that his attorney was ready, willing, and able to proceed with the trial, and defendant answered yes. The court admonished defendant about the nature of the offense to which he was pleading guilty, and defendant answered that he understood. The court further admonished defendant that by pleading guilty, the trial would not proceed, and he would not be confronting witnesses against him, calling his own witnesses, or testifying on his own behalf. Defendant responded that he understood. The court acknowledged accepting defendant's jury waiver.

¶ 5 At the conclusion of the plea hearing, which took place immediately after the State's two witnesses had testified in open court, the court found that "the record amply supports a factual basis." The court concluded that "there's a factual basis for the plea; that the defendant is entering a plea freely, knowingly, and voluntarily." The court then entered a finding of guilty to the charge of first degree murder.

¶ 6 At the subsequent sentencing hearing, the State presented the testimony of Ehlers's parents in aggravation. In allocution, defendant expressed his regret and apologized for taking Ehlers's life. He stated that he "made a very fatal and destructive mistake" and he "was not in [his] proper and right state of mind" because he had been drinking "most of that night." Defendant further stated that "it's my hope to simply have you hear it from me that your son did not deserve and greatly endure [sic ] that tragic night of August 1st, 1998, that I am so, so very sorry in taking your child." At the time of the sentencing hearing, the sentencing range for first degree murder was 20 to 60 years in prison. See 730 ILCS 5/5-8-1(a)(1)(a) (West 2000). In aggravation, the prosecutor argued that defendant was a violent gang member with juvenile criminal offenses, while Ehlers was a promising college graduate, and asked for the maximum sentence of 60 years.

¶ 7 Defendant's PSI indicated two juvenile convictions—burglary to an automobile and unlawful use or possession of a weapon. The PSI also disclosed that his father was an alcoholic and his mother was a recovering drug addict. Defendant's childhood was "rough" because "he grew up in a neighborhood where people sold drugs and were involved in street gangs" as well his parents had’ substance abuse issues. He completed the eighth grade and later stopped attending high school after seven days, due to gangs. Defendant indicated that he had a problem with alcohol, and prior to his incarceration, he was consuming a case of beer and a fifth of tequila daily. Defendant was involved with the C-Notes street gang since he was 10 years old but held no rank or role in the gang structure.

¶ 8 In mitigation, defense counsel pointed out that defendant had an IQ of 81 and stressed defendant's parents’ addiction issues. Defense counsel also pointed out that defendant had some rehabilitative potential and asked for a sentence of 40 years.

¶ 9 Following arguments, the trial court made the following findings before imposing defendant's sentence. The court acknowledged that this was "a horrendous situation" with a party and "a stupid argument" that led to "something that it should not have led to." The court discussed the gang involvement and how people are suddenly "sworn enemies because they came up with this stupid teenage gang that causes them to shoot at each other." Instead of making an opportunity to increase his base of friends or enjoy himself with people beyond his "own little niche of friends," codefendant introduced a gun, and defendant was the "one that took that weapon and fired it." The court found this was "outrageous conduct" that was "[t]otally improper, unnecessary" since they were leaving the party. The court noted:

"Not to say that shooting a gun in the air is good, but why wasn't it just shot in the air if it's going to be shot at all, and it should not have been, or into the ground? Wouldn't that have shaken everybody up? You could have had a laugh about that and gone on your way and still have your whole life ahead of you. Instead you had to aim it at people and kill somebody. It's just absolutely horrendous and a very bad act on your part."

¶ 10 The trial court discussed the evidence in aggravation and mitigation. The judge also noted the victim impact statements and testimony from Ehlers's parents and observed that defendant needed to listen to "the mother and father of the child he killed." The court acknowledged that no parent should ever outlive a child, but that is what happened in the case. The court pointed out that both families were losing a son with defendant's family losing him to the penitentiary. The judge further discussed defendant's family background,...