People v. Hixson

1

2023 IL App (4th) 200122-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FALANZO M. HIXSON, Defendant-Appellant.

No. 4-20-0122

Court of Appeals of Illinois, Fourth District

June 6, 2023

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Champaign County No. 99CF1850 Honorable Jeffrey B. Ford, Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.

ORDER

KNECHT, JUSTICE

¶ 1 Held: (1) Defendant, a juvenile at the time of the offense, failed to prove the sentencing court applied inappropriate sentencing factors before imposing a 35-year sentence for first degree murder. (2) Defendant's 35-year sentence is not excessive. (3) Defendant failed to prove the truth-in-sentencing statute is unconstitutional as applied to him.

¶ 2 In April 2000, a jury found defendant, Falanzo M. Hixson (born November 28, 1981), guilty of the November 12, 1999 first degree murder of Jerry Brinegar (720 ILCS 5/9-1(a)(1) (2) (West 1998)). At that time, defendant was sentenced to 55 years' imprisonment. As a result of proceedings under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)), defendant was resentenced in January 2020 to 35 years' imprisonment. Defendant appeals his 35-year sentence, arguing (1) his sentence is "unconstitutionally harsh" as the sentencing court failed to correctly apply the juvenile-sentencing factors, (2) the court abused its discretion in sentencing him to 35 years, and (3) the truth-in-sentencing statute is unconstitutional as applied to him as it denies him credit against his sentence and the opportunity to show rehabilitation. We affirm.

¶ 3 I. BACKGROUND

¶ 4 A. Defendant's Trial Proceedings

¶ 5 Defendant was charged with five counts of first degree murder and one count of felony murder for the death of Brinegar. Evidence at trial established police responded to a traffic accident involving a station wagon that crashed into a parked van. Brinegar, who had been driving the station wagon, had been shot twice. One shot went through his arm and pierced his heart. Brinegar was pronounced dead shortly after arriving at the hospital.

¶ 6 The trial evidence included testimony of a detective who investigated the case, David Griffet, and a witness who was present at the time of the shooting, Juan Carter. Detective Griffet testified he contacted an informant, Andre Gordon who lived in the neighborhood where the shooting occurred. Gordon provided Detective Griffet with the murder weapon and identified "Falanzo" as the murderer. Detective Griffet questioned defendant the day after the shooting. Defendant denied knowing Brinegar and denied having touched a vehicle like Brinegar's vehicle.

¶ 7 Juan Carter, who had known defendant since the eighth grade, identified him as the shooter. The night of the shooting, near 9 p.m., defendant and Carter were walking when a dark blue or gray vehicle approached. Defendant told Carter the driver was "money," meaning a potential crack cocaine customer. Defendant approached the vehicle; Carter stayed 10 to 12 feet behind. Carter observed defendant physically "tussling over" Brinegar's wallet with Brinegar. Defendant pulled a gun from his own coat pocket and fired two or three shots.

¶ 8 Gordon testified, on the night of November 12, 1999, defendant told him he had just shot a white man he did not know. Defendant told Gordon a white man and another person were "shooting at him." Defendant stated, "he got one of them b***." Later, defendant said he shot the "white guy" by mistake.

¶ 9 Charles Edwards, who had known defendant approximately eight months before the shooting, testified defendant knocked on a window at Edwards's house. Defendant told Edwards he shot "some white dude" in a car defendant mistakenly believed contained rival gang members with whom defendant had "got[ten] into it" earlier that day.

¶ 10 Defendant's fingerprint was found on the passenger-side windshield of Brinegar's car. Shell casings were found in the vehicle that matched the weapon Detective Griffet obtained from Gordon, the same weapon Carter identified as belonging to defendant.

¶ 11 The jury found defendant guilty of first degree murder but acquitted him of felony murder.

¶ 12 B. Initial Sentencing

¶ 13 Defendant's sentencing hearing occurred in July 2000. At the beginning of the hearing, the trial court noted it had reviewed the May 2000 presentence investigation report (PSI). According to the PSI, defendant, at age 13, was convicted in September 1995 of unlawful possession of a controlled substance and sentenced to the Illinois Department of Corrections, Juvenile Division (JDOC). Defendant was not paroled until July 1998. In September 1998, defendant returned to the JDOC for a parole violation on another offense of unlawful possession of a controlled substance. The PSI indicates other technical parole violations, including the failure to comply with parole programs and being absent without official leave. In May 1999, defendant was paroled again from the JDOC.

¶ 14 At the sentencing hearing, six witnesses testified for the State. These witnesses established charges were pending in Chicago against defendant for two controlled purchases of marijuana in August and September 1999.

¶ 15 Defendant called two witnesses to testify on his behalf: his great aunt, Elnora Fisher, and an intern from the Champaign Public Defender's Office, Miriam Sierig. Fisher testified she had not observed defendant act violently toward others. Defendant "got along well" with his siblings and had good relationships with his elders. Fisher would never have expected defendant would murder someone. Fisher called defendant "an outstanding *** kid" and "loving child." Sierig testified regarding conversations she had with defendant's father and stepmother. Sierig had expected both to attend the sentencing hearing. Defendant's father, Tyrone Hixson, told Sierig that defendant was very loving toward defendant's son. Tyrone was shocked his son was convicted of murder; he believed that to be out of character for him. Defendant's stepmother, Theresa Hixson, had known defendant for three years. Theresa called defendant very humble. Theresa had not seen defendant become enraged or throw a fit; he was friendly and calm.

¶ 16 During argument, the State highlighted defendant's history as a delinquent. The State further emphasized, while the above-mentioned charges were pending in Chicago, defendant removed his home-monitoring ankle bracelet and moved to Champaign. The State further emphasized defendant had been a gang member and urged the court to sentence defendant near the maximum of 60 years.

¶ 17 Defense counsel, in contrast, maintained mitigation evidence existed. According to counsel, the circumstances of the offense showed defendant was likely provoked before shooting Brinegar. Counsel further argued a long prison term would be an excessive hardship on defendant's son and his family. Counsel highlighted the evidence showing defendant struggled with drug and alcohol problems and suffered from suicidal thoughts, depression, and anger.

¶ 18 The trial court sentenced defendant to 55 years' imprisonment.

¶ 19 C. Defendant's Direct Appeal and Postconviction Proceedings

¶ 20 Defendant pursued a direct appeal of his conviction and sentence. This court affirmed both. We found, in part, defendant's argument his sentence was excessive was barred by a procedural default.

¶ 21 The postconviction proceedings that led to defendant's resentencing and this appeal began with a successive postconviction petition filed in July 2016, in which defendant asserted his 55-year sentence was a de facto life sentence that violated the eighth amendment's prohibition against cruel and unusual punishment. See U.S. Const., amend. XIII. That September, the trial court summarily dismissed the petition. In June 2019, this court reversed that dismissal and remanded for resentencing. See People v. Hixson, 2019 IL App (4th) 160768-U, ¶¶ 46-47.

¶ 22 D. Sentencing on Remand

¶ 23 Defendant's sentencing hearing on remand was held in January 2020. At the hearing, evidence of defendant's confirmed disciplinary record was admitted. Defendant was found guilty of 39 infractions for incidents between March 2001 and August 2014. These infractions included fighting in May 2002, possessing dangerous contraband in May 2004, theft trafficking, and multiple incidents of disobeying a direct order, including one in August 2014.

¶ 24 Michael Magana, deputy commander of intelligence for the northern region of the Illinois Department of Corrections (DOC), testified regarding some of the incidents listed above. In addition, Magana testified defendant indicated around 2007 he was no longer involved in gang activity. The following information regarding defendant's conduct was obtained by Magana from DOC records. In 2005, there was a "Honey Bun" incident in which defendant refused three direct orders to comply. In February 2013, approximately 33 pages of "street gang literature" was found among defendant's property. Also in February 2013, defendant was found in possession of unauthorized prescription medication. A shakedown report describes an incident in January 2019 in which unauthorized items were found on defendant. Among the items recovered was an inmate identification card belonging to another inmate. Defendant was also found in possession of a photo book containing gang-related material.

¶ 25 Defendant also testified. According to defendant, he was born in Chicago, Illinois, to Gwendolyn and Tyrone Bates. Gwendolyn was an alcoholic and...