People v. Thomas

2022 IL App (1st) 200164

220 N.E.3d 1158

468 Ill.Dec. 379

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

v.Derrick THOMAS, Defendant-Appellant.

No. 1-20-0164

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed April 29, 2022

James E. Chadd, Douglas R. Hoff, and Robert N. Markfield, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Matthew Connors, and Zachary M. Slavens, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Following a jury trial, defendant Derrick Thomas was convicted of first degree murder, attempted first degree murder, and attempted armed robbery and sentenced to a total of 80 years’ imprisonment, the minimum sentence in light of verdicts that defendant personally discharged a firearm causing death during the murder and great bodily harm during the attempted murder. We affirmed on direct appeal. People v. Thomas , 2017 IL App (1st) 142557, 411 Ill.Dec. 818, 74 N.E.3d 127. Defendant now appeals from the summary dismissal of his postconviction petition, contending that he made at least the gist of a showing that his de facto life sentence for offenses committed when he was 18 years old constitutes an as-applied violation of the proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970, art. I, § 11. For the reasons stated below, we affirm.

¶ 2 I. JURISDICTION

¶ 3 The circuit court summarily dismissed defendant's September 2019 postconviction petition, as supplemented in October 2019, on December 5, 2019. Defendant filed his notice of appeal by mailing it on January 2, 2020, with the circuit court clerk marking it as filed on January 8, 2020. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rule 651(a) (eff. July 1, 2017) governing appeals from a final judgment in a postconviction proceeding.

¶ 4 II. BACKGROUND

¶ 5 Defendant was charged, in relevant part, with the first degree murder of Arvon Grays, attempted first degree murder of Terrence Redditt, and attempted armed robbery of Redditt on or about November 15, 2011. He allegedly personally discharged a firearm, proximately causing death while committing the murder and proximately causing great bodily harm while committing the attempted murder.

¶ 6 A. Trial

¶ 7 Redditt testified that he and Grays were wholesaling tire rims and clothing in 2011. Redditt was doing that when he met defendant in late October or early November of 2011. He identified defendant at trial as the man he met and "the guy right there that shot me." They discussed Redditt selling some merchandise and exchanged telephone numbers. About a week later, defendant called Redditt and brought him a man who bought his rims. On November 15, 2011, defendant called Redditt from a different number than he provided in October, and they discussed the tire rims and a credit card scam in which Redditt had participated. Defendant told Redditt that his brother wanted to buy tire rims from Redditt.

¶ 8 Later that day, Redditt and Grays met defendant at a home, with two young people nearby. Neither Redditt nor Grays was armed. Defendant walked towards Redditt, who exited the car to talk with him while Grays stayed in the car. Redditt noticed that the young people with defendant looked nervous, as if they anticipated something. When he asked defendant why, he replied that "they're scary." Redditt asked defendant where the buyer was, and defendant pretended to call someone. Redditt turned his back on defendant and told Grays that he believed defendant was not going to buy anything but probably do a "stickup." When Redditt turned around, defendant pointed a gun at his stomach and said, "Give me everything." Redditt asked defendant if he was "for real," and he shot Redditt in the stomach. As Redditt ran away, defendant chased him and fired two more shots, striking him in the side. Defendant fled after Redditt pretended he saw a police officer. Redditt made his way to a nearby porch and heard more gunshots, which he presumed was defendant shooting Grays. Redditt was taken by ambulance to the hospital, where he had surgery. As of trial, he still had stomach pains due to the shooting. While in the hospital, he learned that Grays had been killed. Redditt's car had three bullet holes in it after the incident that it did not have before. He identified defendant in a photograph and a police lineup later in November 2011.

¶ 9 Robert Williams and Diamond Isom testified that they were at a friend's home on November 15, 2011, when defendant came by. He asked Isom to lend him her cellphone so he could "do a little sting" or "hit a sting," which Williams explained meant committing a robbery. Isom lent defendant her cellphone for $50. He showed Williams and Isom the outline of a gun inside his clothing and said he was going to rob a man he had met. They went to the porch of a nearby home, where defendant approached a car with two occupants. The driver exited and spoke with defendant. Williams and Isom heard defendant tell the driver "Don't move," and the driver ran away. Defendant fired several gunshots at the fleeing driver and then at the car. Neither Williams nor Isom saw anyone but defendant holding a gun.

¶ 10 Grays died of a single gunshot wound, and Redditt's treatment for multiple gunshot wounds included intestinal surgery. A bullet was recovered from Redditt at the hospital and another was recovered from Grays at the morgue. Four shell casings were found at the scene, and three bullets and a bullet fragment were found inside the car. A forensic scientist opined that the four shell casings from the scene were fired from the same gun.

¶ 11 Defendant testified that he met Redditt about two to three weeks before the incident of November 15, 2011, and they discussed a credit card scam and exchanged telephone numbers. Redditt called him later that day to discuss the scam. On November 15, 2011, defendant saw Williams and Isom but did not tell them that he was armed or that he intended to commit a robbery. He called Redditt and met with Redditt and Grays, who he had not seen before, to discuss the scam. He shot them in self-defense when Redditt demanded his money and started to draw a gun from his waistband. He fired once, and then fled, firing more shots as he ran. He acknowledged firing when Redditt had not fully drawn the gun. He also acknowledged initially telling police after his arrest that he was not involved in the shooting and did not know Redditt and then telling police that Williams shot Redditt and Grays when Redditt tried to rob them.

¶ 12 On this evidence, the jury found defendant guilty of first degree murder, attempted first degree murder, and attempted armed robbery. It found that he personally discharged a firearm proximately causing death during the murder and great bodily harm during the attempted murder.

¶ 13 B. Sentencing

¶ 14 The presentencing investigation report (PSI) reflected that defendant was born in April 1993 and so was 18 years old at the time of his offenses in November 2011. He had a prior conviction for "fleeing and eluding" and a juvenile adjudication for unlawful use of a weapon. Petitions alleging "abuse/neglect/injurious environments" were filed in 2001 for defendant and his siblings, and "[t]here was a finding, in 2004, of abuse and neglect and injurious environment." However, the PSI also states that defendant "believes these petitions were filed without foundation" and neither he nor his siblings "were ever abused or neglected." Defendant did not complete high school but "enrolled in a GED class" and "said he has recently been taking classes at the jail." He denied ever drinking alcohol, using drugs, or being a gang member.

¶ 15 During the July 2014 sentencing hearing, the State noted that defendant could receive a prison sentence from an aggregate 80 years at the minimum up to natural life in light of the firearm enhancements. The State presented a victim impact letter from Grays's sister. While acknowledging that defendant did not have a lengthy criminal history, the State described the case as "egregious," noting that he lured the victims into coming to him and that Grays was shot as he sat in a car while Redditt was shot as he ran away.

¶ 16 Defense counsel acknowledged the statutory sentencing scheme but objected that it was "unconscionable." Counsel noted that defendant had a weapons arrest as a juvenile, which the court said it would not consider in sentencing, and no prior felony convictions. Counsel noted that defendant was completing school while in jail, had no gang affiliation, and may have been abused and neglected as a child.

¶ 17 Before imposing sentence, the court said: "I don't believe the sentence is unconscionable. The legislature feels it's an appropriate sentencing range. They determined that in their opinion it's not unconscionable." The court noted that defendant was a "young guy" of 18 at the time of the offenses and "still a young guy" of 21 at sentencing but nonetheless responsible for his choices to shoot Redditt and Grays "over some nonsensical plan of getting some money from Redditt."

¶ 18 The court sentenced defendant to consecutive prison terms of 45 years for first degree murder, 31 years for attempted first degree murder, and 4 years for attempted armed robbery. The court stated that it read the PSI and that defendant had "basically *** no record." He was receiving the minimum sentence but it was "practically speaking a life sentence," and he would not be restored to useful citizenship "unless he lives to be a really old man possibly which hopefully he does."

¶ 19 Defendant moved for reconsideration of his sentence, claiming that it was excessive in light of his "background and the nature of his participation in the offense," that the...