People v. Merriweather

233 N.E.3d 222

2022 IL App (4th) 210498

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

v.Byron Josha MERRIWEATHER, Defendant-Appellant.

NO. 4-21-0498

Appellate Court of Illinois, Fourth District.

Filed October 4, 2022

Appeal from the Circuit Court of McLean County, No. 04CF840, Honorable John C. Costigan, Judge Presiding.

James E. Chadd, Douglas R. Hoff, and Joshua M. Bernstein, of State Appellate Defender’s Office, of Chicago, for appellant.

Don Knapp, State’s Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State’s Attorneys Appellate Prosecutor’s Office, of, counsel), for the People.

OPINION

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

¶ 1 On remand from this court, the McLean County circuit court held a new sentencing hearing for defendant, Byron Josha Merriweather, a juvenile offender, and sentenced him to 35 years’ imprisonment. Defendant filed a motion to reconsider his sentence, which the court denied. Defendant appeals, asserting (1) the court improperly applied the mitigating sentencing factors for juvenile offenders contained in section 5-4.5-105(a) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-4.5-105(a) (West 2018)) and (2) he did not receive effective assistance of counsel. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In September 2004, a grand jury indicted defendant on the offense of first degree murder (720 ILCS 5/9-1(a)(1) (West 2002)) in connection with the shooting death of Steven McDade in June 2003. Defendant was born in June 1985. At the time of the shooting, he was 10 days short of his eighteenth birthday and a member of the Vice Lords gang. The shooting took place on Father’s Day in a crowded Miller Park in Bloomington, Illinois. The evidence indicated a brawl broke out between the Vice Lords and Gangster Disciples, which ended in the shooting of McDade. After the incident, defendant told Rhonda Williams, a police informant, he had shot McDade. Williams wore a wire and taped some of defendant’s statements about the McDade shooting. A lengthy summary of the evidence presented at defendant’s trial is set forth in our initial order in this case. People v. Merriweather, 378 Ill. App. 3d 1139, 955 N.E.2d 192, 352 Ill.Dec. 1016 (2008) (table) (unpublished order under Illinois Supreme Court Rule 23). In February 2006, a jury found defendant guilty. In May 2006, the trial court sentenced him to 70 years in prison, which included a 45-year term, plus a mandatory 25-year firearm enhancement.

¶ 4 Defendant appealed and argued the following: (1) the evidence was insufficient to convict him because the witnesses against him were not credible, (2) the trial court erred in allowing the jury to hear about his juvenile record, (3) the court denied his right to a fair trial when the State presented a large amount of evidence alleging he committed other uncharged and gang related acts, and (4) he received ineffective assistance of counsel. In March 2008, this court affirmed defendant’s conviction and sentence. Merriweather, 378 Ill. App. 3d 1139, 352 Ill.Dec. 1016, 955 N.E.2d 192.

¶ 5 In December 2008, defendant filed a pro se petition for postconviction relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)), asserting ineffective assistance of counsel based on, inter alia, counsel’s failure to present evidence of another suspect. Defendant attached to his petition his November 2008 affidavit, in which he denied he committed the murder at Miller Park. The trial court dismissed defendant's postconviction petition at the first stage of the proceedings. Defendant appealed, and this court affirmed the dismissal. People v. Merriweather, 403 Ill. App. 3d 1116, 993 N.E.2d 154, 373 Ill.Dec. 154 (2010) (table) (unpublished order under Illinois Supreme Court Rule 23).

¶ 6 In February 2013, defendant filed a pro se motion for leave to file a successive postconviction petition, stating a claim of actual innocence based on newly discovered evidence. The trial court denied the motion for leave to file a successive postconviction petition, and defendant appealed. On appeal, defendant argued (1) this court should vacate his de facto life sentence and remand for resentencing and (2) the trial court erred in denying him leave to file a successive postconviction petition. This court found defendant forfeited his de facto life sentence argument because he raised it for the first time on appeal. People v. Merriweather, 2017 IL App (4th) 150407, ¶ 14, 414 Ill.Dec. 394, 80 N.E.3d 127. However, we vacated the trial court’s denial of defendant’s motion for leave to file a successive postconviction petition and remanded the cause with directions for the trial court to rule on defendant’s motion to supplement the record and for any further proceedings that were warranted. Merriweather, 2017 IL App (4th) 150407, ¶ 30, 414 Ill.Dec. 394, 80 N.E.3d 127.

¶ 7 While the appeal was pending on defendant’s first motion for leave to file a successive postconviction petition, he filed a second motion for leave to file a successive postconviction petition in August 2016. In his second motion, defendant argued his 70-year sentence violated the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) because it was a de facto life sentence and the sentencing court failed to take into account the considerations required by Miller v. Alabama, 567 U.S. 460, 483, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The trial court denied defendant’s second motion for leave to file a successive postconviction petition, finding defendant failed to establish prejudice because Miller applied to mandatory life sentences, not discretionary ones. Defendant appealed the denial of his second motion for leave to file a successive postconviction petition, and this court vacated defendant’s 70-year sentence and remanded the cause for a new sentencing hearing consistent with section 5-4.5-105 of the Unified Code (730 ILCS 5/5-4.5-105 (West 2018)). People v. Merriweather, No. 4-17-0312 (2019) (unpublished summary order under Illinois Supreme Court Rule 23(c))

¶ 8 On remand, the trial court ordered a new presentence report and approved funds for defense counsel to retain a miti- gation expert. At the resentencing hearing, the State asked the trial court to take judicial notice of the prior proceedings and presented the original victim impact statement by McDade’s family and defendant’s November 2008 affidavit. Defendant testified on his own behalf and presented testimony from the following: (1) Mary Duran, a former McLean County jail correctional officer; (2) Deborah Merriweather, defendant’s mother; (3) Ronald Freman, defendant’s father; (4) Nikkita Merriweather, defendant’s sister; (5) Savion Smith, defendant’s brother; and (6) Bertram Givan, defendant’s long-time friend. In addition to the testimony, defendant presented (1) reference letters, (2) an August 2020 forensic psychiatric evaluation by Terry Killian, (3) a brochure for the nonprofit organization defendant wanted to start, (4) defendant’s October 2020 certificate of completion for a peer mentoring skills training correspondence course, (5) defendant’s Lake Land Community College report card, and (6) defendant’s August 2011 request for protective custody.

¶ 9 Duran testified she worked at the McLean County jail from May 2019 to December 2020. She observed defendant was always respectfill and cooperative with jail staff. She also noted defendant had a good attitude toward work and was disappointed when he was switched out of the job to allow others to have the position. Duran further testified younger inmates seemed to look up to defendant and he appeared to keep the peace among inmates. On one occasion, she had to give defendant a verbal warning for talking through the glass in the recreation yard, and he did not do it again after that.

¶ 10 Deborah testified that defendant had matured in prison and was a totally different person. Defendant expressed remorse for what he had done and noted he had learned his lesson. Defendant told Deborah he wanted to help others to not make the mistake he made. Deborah believed defendant did not pose a danger to the public because he had matured and learned a lot in prison. Defendant could live with her in Belleville, Illinois, upon his release from prison.

¶ 11 Freman testified that he had not been a part of defendant’s life until four to six months before the resentencing hearing. He talked on the telephone with defendant two to three times a week, and defendant was very respectful and wanted to do better. Freman was a St. Louis police officer and would be willing to work with defendant and keep him on the right track.

¶ 12 Nikkita testified that she had spoken with defendant every day on the telephone for the last six or seven years. Defendant had expressed remorse to her. Defendant had discussed future goals with her and noted he would like to open a center for troubled teens and adults to help them get on a different path in life. Nikkita believed defendant was not a danger or a threat to the public because he did not speak of harming anyone or even speak negatively about anyone. Nikkita viewed defendant as a father figure and wanted him home to help her out.

¶ 13 Smith testified it was rough not having defendant around in person when he was growing up but defendant was still there for him no matter what the situation. Smith explained defendant would always call him and encourage him to be the best person he could be. With defendants advice, Smith was in a good crowd and finished high school. Smith described defendant as a good mentor and said he owed defendant a debt of gratitude for all his guidance over the years.

¶ 14 Givan testified he had been defendant’s good friend for around 25 years and was friends with him at the time of the murder. They had been in the same gang. Defendant was "just a soldier" in the gang. Givan eventually left the gang...