People v. Aguilar

1

2024 IL App (1st) 220470-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EFREN AGUILAR, Defendant-Appellant.

No. 1-22-0470

Court of Appeals of Illinois, First District, Fifth Division

June 7, 2024

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 06 CR 12064 Honorable Angela Munari Petrone, Judge, Presiding.

JUSTICE NAVARRO delivered the judgment of the court. Justices Mikva and Lyle concurred in the judgment.

ORDER

NAVARRO, JUSTICE

¶ 1 Held: Defendant's 50-year sentence imposed at the resentencing hearing does not violate either the eighth amendment of the United States Constitution or the proportionate penalties clause of the Illinois Constitution. The sentencing court did not abuse its discretion when it resentenced him to 50 years in prison; affirmed.

¶ 2 This appeal comes before this court following a resentencing hearing for defendant, Efren Aguilar, who was 17 years old when he committed the offense of first degree murder (720 ILCS 5/9-1(a)(1) (West 2022)). In 2019, this court reversed the trial court's dismissal of Aguilar's postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(a)(1) (West 2018)), and remanded for resentencing because the trial court did not consider Aguilar's youth and factors, as set forth in Miller v. Alabama, 567 U.S. 460 (2012) when it sentenced him to 50 years in prison. People v. Aguilar, 2019 IL App (1st) 160224-U, ¶¶ 2, 28. On remand, the sentencing court resentenced Aguilar to 50 years in prison, which included 25 years for first degree murder (730 ILCS 5/5-4.5-20(a) (West 2022)) and 25 years for personally discharging the firearm that caused the victim's death (730 ILCS 5/5-8-1(d)(iii) (West 2022); (730 ILCS 5/5-4.5-105(b) (West 2022)).

¶ 3 Aguilar contends on appeal that his 50-year sentence violates the eighth amendment to the United States Constitution (U.S. Const., amends. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. 1, § 11). He argues that the sentencing court imposed the sentence without making the finding that he was permanently incorrigible and after finding that he was "not permanently incorrigible." He asserts that Illinois's strict parole limitations for juvenile homicide offenders does not provide a meaningful opportunity for release, and the sentencing court's findings were incompatible with and contradicted Miller's findings regarding the characteristics of juvenile offenders. He also argues his sentence is excessive and the court overlooked and misconstrued critical mitigation.

¶ 4 I. BACKGROUND

¶ 5 Following a 2007 jury trial, Aguilar was found guilty of first degree murder in the shooting death of Brandon McClelland that occurred on May 29, 2004, when Aguilar was 17 years old. The trial evidence is not at issue here, so we briefly summarize and repeat the trial evidence that was set forth in this court's prior orders. See People v Aguilar, 396 Ill.App.3d 43 (2009); People v. Aguilar, 2012 IL App (1st) 110878-U; People v. Aguilar, 2019 IL App (1st) 160224-U.

¶ 6 On May 29, 2004, at about 10:30 p.m., Brandon McClelland, who was 18 years old, was with his three friends at a park in Chicago. Aguilar rode up to them on a bike and asked them a question about what gang they were in and some of them responded that they were not in a gang. Aguilar then pulled out a gun and started shooting. A bullet struck McClelland in his back, and he later died in the hospital. Two of the victim's friends who were in the park that night identified Aguilar in a photo lineup as the shooter. The third friend also identified Aguilar in a photo lineup as the shooter but stated he would need to see him in person to be sure. See Aguilar, 396 Ill.App.3d at 44-45; Aguilar, 2012 IL App (1st) 110878-U, ¶ 3.

¶ 7 About two years later, Aguilar was arrested following a traffic stop. During the stop, Aguilar did not give the police officers his correct name and one of the officers saw a gun on the floor by the passenger's side of his car. Aguilar drove away until his car ran into a railroad embankment. Aguilar then ran into the railroad yard, and one of the officers testified that when Aguilar was running, he turned around and pointed a gun at the officer, after which the officer fired one shot in his direction. Aguilar continued to run, and at one point, the officer lost sight of him. Later during the chase, the officer fired his gun a second time. Aguilar was eventually taken into custody, and no handgun was found on him. See Aguilar, 396 Ill.App.3d 43 at 45; Aguilar, 2012 IL App (1st) 110878-U, ¶ 3.

¶ 8 The jury found Aguilar guilty of first degree murder and the trial court subsequently sentenced him to 25 years for first degree murder (720 ILCS 5/9-1(a)(1) (West 2006)) and 25 years for using a firearm during the offense, for a total of 50 years in prison. On direct appeal, this court affirmed the trial court's judgment. Aguilar, 396 Ill.App.3d at 44.

¶ 9 Post-Conviction Proceedings

¶ 10 In 2010, Aguilar filed a postconviction petition, in which he argued, among other things, that his trial counsel was ineffective for failing to present alibi witnesses who would have testified that he was not present in the park on the night of the incident. Aguilar attached affidavits to support his petition, including an affidavit from Priscila Pernillo, who was Aguilar's girlfriend at the time. She averred that on the night of the incident, she and Aguilar were together with their friends in Sauk Village, Illinois, not in the park when the shooting occurred. The trial court summarily dismissed Aguilar's petition. On appeal, this court reversed the trial court's dismissal and remanded for further proceedings. Aguilar, 2012 IL App (1st) 110878-U.

¶ 11 On remand, Aguilar filed a supplemental postconviction petition, in which he argued that his 50-year sentence for an offense he committed when he was 17 years old was an unconstitutional de facto life sentence under Miller. He contended that his sentence violated the eighth amendment to the United States Constitution and the proportionate penalties clause of the Illinois Constitution. He also argued that trial counsel was ineffective for failing to argue at the sentencing hearing that the court should consider Aguilar's youth when it sentenced him, and that appellate counsel was ineffective for failing to raise the issue on appeal. The State moved to dismiss Aguilar's postconviction petition, arguing, among other things, that his sentencing claim was not affected by Miller, and that Pernillo stated in a videotaped statement that her affidavit was false, and that Aguilar and his mother urged her to sign it.

¶ 12 At an evidentiary hearing on Aguilar's initial and supplemental postconviction petition, the court admitted into evidence Pernillo's deposition, in which she recanted her alibi statement contained in her affidavit. Aguilar's postconviction counsel who prepared the initial petition testified at the hearing that in October 2010, she met with Pernillo and Aguilar's mother, at which time Pernillo told her the information that she included in the affidavit. Pernillo never told counsel the information was not true or that she had been coerced by anyone. Following the hearing, the trial court granted the State's motion to dismiss Aguilar's postconviction petition.

¶ 13 On appeal, this court reversed the trial court's dismissal of Aguilar's sentencing claim and remanded for further proceedings, concluding that his 50-year sentence violated the eighth amendment to the United States Constitution. Aguilar, 2019 IL App (1st) 160224-U, ¶ 28. In doing so, this court stated that Aguilar received a de facto life sentence and that the record did not indicate that the trial court considered his youth and attendant circumstances or that it discussed the factors set forth under Miller when it sentenced him. Id. ¶ 27. This court vacated Aguilar's sentence and remanded for resentencing under section 5-4.5-105 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-105) (West 2018)), which requires the trial court "to consider a number of factors when imposing a sentence on an individual under the age of 18." Id. ¶¶ 26-27. This court affirmed the summary dismissal in all other respects. Id. ¶ 4.

¶ 14 Resentencing Hearing on Remand

¶ 15 Aggravation Evidence

¶ 16 At the resentencing hearing, the State requested the sentencing court take judicial notice of the common law record, the transcripts from the trial and postconviction proceedings, the trial exhibits, Pernillo's evidence deposition entered into evidence at the postconviction hearing, and the original presentence investigation report (PSI) from Aguilar's sentencing hearing in 2007. The PSI provided information on Aguilar's social history, education, employment, health, alcohol and drug use, community involvement, and economic status. The State also asked the court to admit into evidence Aguilar's records from the Illinois Department of Corrections (IDOC), which included disciplinary and rehabilitation records, as well as his delinquency records from juvenile court. The State requested the court consider five victim impact statements and then it presented three witnesses, including the victim's mother and two younger sisters, who each read their victim impact statements.

¶ 17 Mitigation Evidence

¶ 18 Defense counsel presented a defense mitigation report prepared by Helen Kim Skinner, JD, MSW, a mitigation specialist. The report explained the history of abuse Aguilar experienced from his father, and the "lack of action" from his...