People v. Gunn

2020 IL App (1st) 170542

161 N.E.3d 1095

443 Ill.Dec. 443

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

v.Omar GUNN, Defendant-Appellant.

No. 1-17-0542

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed June 30, 2020

James E. Chadd, Patricia Mysza, and Kathryn L. Oberer, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Clare Wesolik Connolly, and Miles J. Keleher, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Defendant Omar Gunn, 17 years old, was charged as an adult and convicted after a bench trial of first degree murder and sentenced to 40 years with the Illinois Department of Corrections (IDOC).

¶ 2 In his initial brief in this appeal, defendant claimed (1) that we should reverse his conviction and remand for a new trial because his trial counsel rendered ineffective assistance of counsel or (2) that, alternatively, we should remand for resentencing because the trial court failed to consider mandatory mitigating sentencing factors or (3) that we should reduce his sentence or remand for resentencing because a 40-year sentence imposed on a 17-year-old, like defendant, constitutes a de facto life sentence and violates the eighth amendment of the United States Constitution ( U.S. Const., amend. VIII ) and the proportionate penalties clause of the Illinois Constitution ( Ill. Const. 1970, art. I, § 11 ).

¶ 3 However, defendant's initial brief was filed before our supreme court decided People v. Buffer , 2019 IL 122327, 434 Ill.Dec. 691, 137 N.E.3d 763. Defendant's 40-year sentence now sits right on the dividing line recently drawn by the Buffer court, between what does and does not constitute a de facto life sentence. See Buffer , 2019 IL 122327, ¶ 40, 434 Ill.Dec. 691, 137 N.E.3d 763. The Buffer court found that, in determining when a juvenile's sentence is long enough to be considered de facto life, "we choose to draw a line at 40 years." Buffer , 2019 IL 122327, ¶ 40, 434 Ill.Dec. 691, 137 N.E.3d 763. Summing up its finding, the court stated: "We hereby conclude that a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment." (Emphasis added.) Buffer , 2019 IL 122327, ¶ 41, 434 Ill.Dec. 691, 137 N.E.3d 763.

¶ 4 In response to Buffer , defendant filed a supplemental brief, arguing (1) that other language in the Buffer opinion supports a finding that 40 years is long enough to be considered a de facto life sentence; (2) that defendant's 40-year prison sentence, plus his 3-year mandatory release term, constitutes a 43-year total sentence and, thus, is a de facto life sentence under Buffer ; and (3) that Buffer was decided solely under the eighth amendment of the United States constitution and did not address our state's proportionate penalties clause and that defendant's sentence violates our state's proportionate penalties clause in light of recent changes in juvenile sentencing enacted by our state legislature.

¶ 5 For the following reasons we affirm.

¶ 6 BACKGROUND

¶ 7 The evidence at trial established that 18-year-old Jaleel Pearson (the victim) was shot in a corner store during the early evening of September 20, 2013, at the corner of 71st Street and Crandon Avenue in Chicago. The State presented three event witnesses: (1) a bystander who testified that defendant followed the victim into the store and that he then heard gunshots inside the store; (2) the store's cashier, who observed defendant shoot the victim in the store and overheard the victim's dying declaration identifying defendant as the shooter; and (3) the victim's girlfriend, who observed defendant outside the store after the murder with a gun handle in his waistband.

¶ 8 Since trial counsel's representation is at issue in this appeal, we set forth below his representation both before and during trial.

¶ 9 I. Pretrial Representation

¶ 10 On December 4, 2013, when defendant was arraigned on the indictment, he was represented by a private attorney. On March 24, 2014, he moved to withdraw, and defendant's family informed the court that they and counsel had "several disagreements about this case." The case was then continued to permit defendant time to obtain new counsel.

¶ 11 On April 17, 2014, a new attorney filed his appearance and represented defendant through May 16, 2016, when the trial court informed defendant that his current attorney had been suspended from the practice of law and, thus, could no longer represent defendant. The trial court informed defendant that his attorney's associate, who had represented defendant on several prior court appearances, was "currently undergoing some medical treatment" but that defendant could "continue with Mr. Wilk or go with somebody else." Either way, however, the trial court needed "to know what [defendant] want[ed] to do." The trial court offered defendant a continuance so that defendant could "talk it over with Mr. Wilk when his health [was] on the mend, [and] figure it out then." Defendant agreed, and the trial court continued the case for a month to permit that to happen.

¶ 12 At the next court date on June 14, 2016, Thomas Kougias, a new attorney on the case, entered his appearance. Defendant's mother explained that Kougias was "supposed to be representing him from [the suspended attorney's] office, because we already paid [the suspended attorney]. So he's supposed to be an associate of his." However, Kougias clarified:

"Judge, I'm going to [need] leave to file my appearance today. I spoke with the family. Judge, I also need to spread of record so the family is not confused. They had represented to me that they had paid [the suspended attorney] in full. I know that's not the Court's concern, and it's really not my concern

But I did explain to them what procedures they need to follow in order to try and obtain those funds back, whatever they paid. Whatever he's not earned, he needs to return.

* * * Here's the other concern. I don't know [the suspended attorney's] file that he had on this matter. I need to try to locate it. I know it's an old case. It's a 13. I know this case has whiskers. We need to get it moving. I don't have a problem with that."

Counsel then informed the court that he was going to work with the assistant state's attorney (ASA) to duplicate the file.

¶ 13 On July 13, 2016, counsel informed the court that the State had duplicated the file, that he had received a portion of the file from the suspended attorney's office, that he was asking for August 26, 2016, for a final status conference, and that a bench trial was "indicated."

¶ 14 On August 26, 2016, counsel informed the trial court:

"The only issue I have—and I really don't understand why it's happening, but it still is—this young man is in the custody of Cook County yet and they are transferring him out to Kankakee, and I don't understand why. A couple dates ago he'd be housed in Kankakee and then be brought back here and the last time they just kept him out there. It is a gross inconvenience to try and go out there. I need to meet with him. And my point is I haven't met with him to go [over] everything * * *."

The trial court then continued the case to September 23, 2016, stating that the court "will presume in the meantime you will be able to meet with" defendant.

¶ 15 On September 23, 2016, counsel informed the trial court that he had "not gone to see him yet in Kankakee" and that he was not ready. The trial court then set the matter for October 27, 2016, for a status conference and November 21, 2016, for a bench trial.

¶ 16 On November 21, 2016, counsel informed the trial court that he had received information about a new potential alibi witness who counsel was to interview that day, and the parties then went off the record. Back on the record, the trial court stated that the State could begin its case and that the State was aware that defendant might present an alibi defense. Before accepting a jury waiver from defendant, the trial court informed defendant that, if he was found guilty of the most serious charge, the minimum sentence was 45 years. The trial court recalled that it had presided over the bench trial of a codefendant but that it had "no specific or particular recall of the evidence" and that it "had no idea what decision" it might reach in defendant's case. The court then accepted defendant's jury waiver, and his bench trial began.

¶ 17 II. Trial

¶ 18 A. Opening Statements

¶ 19 During the State's opening statement, the ASA conceded that the court "will not hear a reasonable explanation or a good explanation as to why the defendant did what he did that day." Instead, the ASA focused on the evidence identifying defendant as the shooter, namely, the victim's dying declaration and the expected testimony of the three event witnesses. In response, counsel acknowledged that the State's witnesses placed defendant "on the scene at different times" but argued that, after hearing "all the evidence," the trial court would find defendant not guilty.

¶ 20 B. Event Witnesses

¶ 21 Tyera Cooks, age 19 years old, testified that she was a stay-at-home mother with two children. At the time of the victim's death, she and the victim had been dating for 2 years. On September 20, 2013, the day of the offense, Cooks was 16 years old and a junior in high school. At 6 p.m., she was inside a barber shop at the corner of 71st Street and Luella Avenue with three friends: Michelle Casey, "Shadonna," and "Quiel." Cooks had been with the victim at 5 p.m. on nearby Crandon Avenue, and she had plans to meet him again after she finished in the barber shop. The barber shop had large windows that looked out onto 71st Street, a major thoroughfare. Train tracks for the Metra commuter rail separated its east and westbound lanes of traffic at the street level.

¶ 22 Cooks...