2021 IL App (1st) 173093-U No. 1-17-3093

Order filed September 30, 2021

First Division

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

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY PARKER, Defendant-Appellant.

) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County. No. 14 CR 16003 Honorable Ursula Walowski, Judge, presiding.

PRESIDING JUSTICE HYMAN delivered the judgment of the court. Justices Walker and Coghlan concurred in the judgment.

ORDER

¶ 1 Held: Stanley Parker’s five challenges to his conviction affirmed on various bases of trial error and error related to his counsel. We vacate Parker’s sentence and remand for the trial court to consider his Miller claim on the merits.

¶ 2 A jury found Stanley Parker guilty of first degree murder for the shooting death of Devin

Pope, and the trial court sentenced him to a 45-year prison sentence. Parker now challenges his

conviction and sentence on six grounds: (i) the trial court’s refusal to excuse a juror who expressed

concern about his counsels’ whispering, (ii) ineffective assistance of counsel for failing to move

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to suppress his recorded statements where his Miranda warnings had “gone stale,” (iii) the trial

court’s admission of a cartridge casing despite a “complete breakdown” in the chain of custody,

(iv) the trial court’s failure to conduct a Krankel hearing after counsel told the court that Parker

believed counsel should have filed a motion to suppress evidence, (v) the trial court’s failure to

conduct a hearing to determine whether constitutional protections for juvenile sentencing should

apply to Parker as a 20-year old adult, and (vi) the entry of two convictions for murder on the

mittimus where the shooting resulted in one death.

¶ 3 We find his claims largely without merit. Nonetheless, we vacate his sentence and remand

for further proceedings. Parker claimed that the constitutional protections applicable to juvenile

defendants under Miller v. Alabama, 567 U.S. 460 (2012), also apply to him as a young adult by

way of the proportionate penalties clause. See e.g., People v. Harris, 2018 IL 121932. The trial

court felt it was bound to reject Parker’s claim by the mandatory nature of the 25-year firearm add-

on. But, the mere existence of a mandatory sentencing statute, does not immunize a sentence from

constitutional attack. Thus, the trial court should have the opportunity to evaluate Parker’s

sentencing claim in the first instance. Because we remand for resentencing, we do not address

Parker’s claim about the accuracy of the mittimus.

¶ 4 Background

¶ 5 Stanley Parker and Marie Money dated for about 2½ years. By July 31, 2014, they had

broken up and been apart for a month or two. Money, who was dating Devin Pope, still kept in

touch with Parker. Money lived in an apartment near 67th Street and Clyde Avenue.

¶ 6 On the evening of the 31st, Money and three of her siblings were outside “partying [and]

drinking” until about 2:30 a.m. She called Pope to pick her up so she could get some food. They

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went to a Taco Bell drive-thru and returned to Money’s apartment. She took the food upstairs while

Pope went to park his car.

¶ 7 On her way to let Pope into the building, while still inside, Money heard a single gunshot.

She went outside and saw Pope on the ground near the base of the apartment stairs. Money saw

Parker “fleeing the scene” and recognized his long dreadlocks. On cross-examination, Money

admitted she never saw Parker’s face, though she later clarified that she saw the side of his face as

he ran.

¶ 8 After attempting in vain to rouse the neighbors, Money went back into her apartment,

called the police, and then left with her daughter and a sister to go to her uncle Stevie Money’s

house a couple blocks away. She then went back to her apartment where she spoke with police.

Eventually, officers took Money to the police station where she identified Parker as the shooter

from a series of photographs.

¶ 9 Ruthie Jackson, who lived with Stevie at the time, went with Stevie to the grocery store

later in the morning. On the way, they heard someone yelling “Unc, Unc,” which people often

called Stevie. She turned a corner and saw Parker. He came up to them and asked if they knew

where Money was. Parker walked with them as they continued to the grocery store and said, “he

wouldn’t have shot the boy if [Money] wasn’t trying to treat him in front of him *** anything that

comes between [him] and [Money], [he’s] going to lay it down.” After Parker left, Jackson called

the police.

¶ 10 A few days after the shooting, Alicia Williams (Parker’s cousin) was helping her friend

Danielle move into Williams’s apartment. Danielle was dating Parker at the time, and Parker came

to their apartment. Williams noticed he had recently trimmed his dreadlocks and asked him about

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it. Parker said “he had to” cut his hair because he “caught a body,” which Williams understood to

mean he killed somebody. Parker also had two guns and when Williams asked about them, Parker

tried to persuade her to buy them from him. Both were 22-caliber and Parker admitted to her that

one of the guns did not have a clip and the other one was “dirty,” so Williams refused.

¶ 11 Two days later, Williams had another conversation with Parker, this time at the home of

one of Danielle’s friends, Niesha Smart. The two talked about “the person that’s deceased.” Both

Williams and Parker knew Money, and Parker told Williams he wanted her to “find somebody to

whack [Money].”

¶ 12 Later in August, Niesha Smart’s father-in-law, Jonathan Adams, brought a gun to the police

in a brown paper bag. He claimed not to have looked in the bag before turning it in. He had received

the gun from a “young lady,” about 12 years old, while he was with his wife and Smart. Adams

could not remember whose house he was at when the “young lady” gave him the gun. Detective

Daniel Kienzle confirmed that Adams brought him a .22-caliber gun about a week after the

shooting.

¶ 13 Forensic investigator Brian Smith examined the scene on the night of the shooting. Among

other evidence, he found a cartridge casing in the walkway of Money’s apartment, about 10 to 15

feet from Pope’s body. When he recovered the cartridge, he put it in an envelope and wrote

“Marker No. 1” on it, along with the location “6759 South Clyde; walkway pavement.” He

inventoried the cartridge at the station, entering the information from the envelope into the

computer, which generated a unique number. Smith wrote the number on the envelope and put it

in a secured room to await examination. At trial, the State showed Smith the cartridge case, and

he identified it as in the same or substantially the same condition as when recovered.

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¶ 14 Amanda Darnell, a forensic scientist with the Illinois State Police, received evidence

including the cartridge casing and the gun “in a sealed condition.” On receipt, Darnell changed its

location in the computer system from the evidence vault to her workstation, where she kept the

evidence in a locked drawer when she was not working on it. After test firing the gun, Darnell

determined the recovered cartridge and the test cartridge matched the same firearm. She also

concluded a bullet fragment from the scene was not suitable for comparison.

¶ 15 A week after the shooting, Kienzle interviewed Parker after his arrest. Parker was in a room

capable of electronically recording interviews (ERI room). Kienzle explained that throughout the

time Parker was in the room, detectives gave him food, drink, cigarettes, and access to the

bathroom. The first interview took place at 4:15 p.m. on August 7, 2014. Kienzle read Miranda

warnings to Parker, and Parker denied shooting Pope, explaining that he had been at Danielle’s

apartment on the night of the shooting. The next morning, at 9:38 a.m., Kienzle interviewed Parker

again. He did not reread Miranda warnings. During the second interview, Parker admitted he went

to Money’s apartment. Pope was there, and Parker shot a gun as a warning, not meaning to hit

anybody. Parker told Kienzle that he took the gun to a friend but did not know what they did with

it.

¶ 16 After the State rested, Parker called Richard Bibbs, who had a conversation with Money in

April 2017. Money explained that she told police that Parker shot Pope because she had been

arguing with Parker about her new relationship. She revealed that she did not want to testify

because she felt like Pope’s family was “trying to harm her in some sort of way.” Money told

Bibbs that she had been accused of setting up Pope to be murdered.

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¶ 17 During the proceedings, the trial court admonished two of Parker’s attorneys about

speaking too loudly. During Money’s testimony, the court told them, “I can hear you over here.

So I’m sure the jury can hear you. Stop it. Thank you.” On the second day of trial, before testimony

began, the court admonished: “I’m hearing you *** all the way over here. *** If I can hear you,

that means the jurors can year you, so whisper. And if you can’t do it right, I’m not going to let

you talk at all. Write notes. Whichever way you got to do it ***. You *** do not know how to

whisper. If you can’t do that, write notes to each other. Because if I hear you again *** you’re

going to get removed.” On the morning of the third day of trial, the court received a note from a

“concerned juror” and read it into the record:

“Your Honor, I wanted to write this note to let you know that I was quite distracted by the Defense attorneys yesterday during the hearing. I understand it is part of their job to discuss what is being brought to their attention during the trial so they can know what they want to ask about when it is their turn to cross examine. Yesterday they were quite loud in their whispering. It got to the point I couldn’t concentrate on what the attorney was asking the witness or everything the witness was answering. I don’t want to cause any trouble for anyone, especially you, but if someone’s freedom is in the hands of a complete stranger, I just want to make sure I hear everything I can in order to make the right decision and bring justice to all involved.” After reading the note, the trial court admonished Parker’s lawyers to communicate by writing

notes. One of Parker’s lawyers then moved to remove the concerned juror; the trial court denied

the motion, finding “nothing in that note that has [the court] to believe that they are not paying

attention.”

¶ 18 The jury found Parker guilty of first degree murder and found the State proved the special

allegation that Parker personally discharged a firearm.

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¶ 19 Parker filed a motion for a new trial raising several claims of error, though none of these

claims have been brought before us. During litigation on the motion for a new trial, this colloquy

took place:

COUNSEL: Your Honor, the client has asked us specifically to amend the

motion for a new trial judge.

In this particular matter, the client has stated that he believes that, in fact,

since he—the Court has heard the trial that he was arrested as part of an

investigative alert which was brought up before Honorable Judge Boyle, and that,

in fact, if you remember where he was arrested from.

THE COURT: Remind me.

COUNSEL: It’s his statement that he believes he was taken from his

cousin’s home, Judge.

THE COURT: Right.

COUNSEL: In this particular matter he believes since there was no warrant,

that the issue of warrantless arrest should have been brought up.

We are seeking to amend the same. And that’s all we would present as

argument, Judge.

THE COURT: Okay. Anything on that, state?

STATE: No, your Honor.

THE COURT: Okay.

STATE: As[k] that you deny it.

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THE COURT: All right. I understand, Mr. Parker that you want—in your

motion for a new trial. Your lawyer just made that motion; however, based on the

fact what I heard that request is denied. Okay.

COUNSEL: The request to amend or the—

THE COURT: The request to amend is granted. That will be made part of

the record. But motion for new trial based on that is denied.

The parties then proceeded to sentencing, after which the trial court imposed a sentence of 20 years

for first degree murder with a mandatory add-on of 25 years based on Parker personal discharge

of a firearm. The trial court’s sentencing order reflects conviction for two counts of first degree

murder.

¶ 20 Parker filed a motion to reconsider his sentence, making extensive arguments that the

constitutional protections applicable to juvenile sentencing should apply to him as a young adult.

The trial court denied the motion. The court considered itself constrained by the statute requiring

the 25-year firearm add-on. In the trial court’s view, only an appellate court could opine on the

constitutionality of Parker’s sentence where a mandatory statute primarily dictated the length of

his sentence. Parker now appeals.

¶ 21 Analysis

¶ 22 Parker challenges his conviction and sentence on six grounds: (i) the trial court’s refusal to

excuse the unidentified juror who expressed concern about his counsels’ whispering, (ii)

ineffective assistance of counsel for failing to move to suppress his recorded statements due to his

Miranda warnings having “gone stale,” (iii) the trial court’s admission of the cartridge casing after

an alleged “complete breakdown” in the chain of custody, (iv) the trial court’s failure to conduct a

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Krankel hearing despite counsel telling the court that Parker believed counsel should have filed a

motion to suppress evidence, (v) the trial court’s failure to conduct a hearing to determine whether

constitutional protections for juvenile sentencing apply to a 20-year old Parker, and (vi) the entry

of two convictions for murder on the mittimus where the shooting resulted in a single death. We

address the trial issues first, followed by the issues related to counsel, and finally, the sentencing

claims.

¶ 23 Distracted Juror

¶ 24 Parker claims the trial court erred by failing to excuse an unidentified juror who sent a note

describing concern about Parker’s counsel’s loud whispering. Parker claims that the whispering

prevented the juror from hearing material evidence, forcing them to rely on the perceptions of

other jurors and depriving Parker of a fair trial. The State raises three rejoinders: (i) the error is

forfeited and not subject to plain error review, (ii) the error was invited, and we should not “reward

trial counsel for injecting error” into the trial, and (iii) any distraction Parker’s counsel caused was

not severe enough to warrant reversal.

¶ 25 We address forfeiture first. The State correctly asserts that Parker has forfeited his claim.

Though he objected when the court received the jury note, he did not include the error in his

posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988) (trial objection and asserting error

in posttrial motion required to preserve claim for review).

¶ 26 Parker responds that his claim survives under the constitutional issues exception discussed

in People v. Cregan, 2014 IL 113600. The constitutional issues exception allows courts of review

to address constitutional issues properly raised at trial but left out of posttrial motions to avoid the

needless filing of a postconviction petition after a direct appeal. Id., ¶ 18. Parker argues his claim

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fits within the exception because the presence of an inattentive juror implicates his due process

right to be tried by a full complement of 12 impartial jurors. The State does not dispute that

Parker’s claimed error involves a constitutional dimension, only that he should not benefit from

the exception where his own counsel caused the alleged juror inattentiveness.

¶ 27 We agree with Parker that the constitutional issues exception excuses his failure to file a

posttrial motion. The error was “properly” raised at trial. Id. (reciting standard). Parker moved to

excuse the juror immediately after the court read the note. Then, without further argument, the trial

court denied the motion on the merits finding no evidence leading the court to believe the juror

was not paying attention. The error also implicated Parker’s constitutional right to a fair trial. See

People v. Jones, 369 Ill. App. 3d 452, 455-56 (2006) (collecting cases). We also reject the State’s

argument that the error’s genesis with Parker’s counsels’ behavior defeats applying the

constitutional issue exception. Unlike plain error, the constitutional issue exception concerns

judicial economy, not fairness. Cregan, 2014 IL 113600, ¶ 18. We aim to avoid duplicative

litigation. We will excuse forfeiture because the trial court had an opportunity to address the claim,

and the claim could be raised within postconviction proceedings.

¶ 28 The State also raises invited error as to why we should not address Parker’s claim on the

merits. We apply the doctrine of invited error where a party “request[s] to proceed in one manner”

and in this court argues that it was error. People v. Harvey, 211 Ill. 2d 368, 385 (2004). The key,

however, is the defendant’s “active participation” in the direction of the proceedings. People v.

Villareal, 198 Ill. 2d 209, 227 (2001). In Villareal, for example, the defendant’s counsel

affirmatively submitted the jury instructions challenged on appeal. Id. In Harvey, on which the

State also relies, a defendant requested and another defendant agreed to use a particular style of

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impeachment they later claimed improper. Harvey, 211 Ill. 2d at 386. Harvey cites cases that

similarly involve “active” defense counsel agreeing to the admission of evidence. See People v.

Caffey, 205 Ill. 2d 52, 113-14 (2001) (disobeying trial court’s order and opening door to otherwise

improper evidence); People v. Payne, 98 Ill. 2d 45, 49-50 (1983) (asking witness to identify

offender then complaining of in-court identification on appeal); People v. Abdullah, 336 Ill. App.

3d 940, 950 (2002) (introducing evidence prejudicial to defendant and then claiming erroneous

introduction of evidence on appeal). All these cases involve the “active participation” of counsel

described in Villareal, directly causing the error later raised on appeal.

¶ 29 We find Parker’s counsels’ behavior falls outside this category. When we think of invited

error, we worry about gamesmanship, Villareal, 198 Ill. 2d at 227, and we see no evidence that

counsel behaved inconsiderately in the hopes of distracting the jury to the point that one or more

jurors might send out a note to create an issue for appeal. Thus, while the trial court properly

admonished counsel, we disagree that counsel invited the error.

¶ 30 Having dispensed with the State’s waiver argument in all its forms, we proceed to the

merits. Parker relies heavily on People v. Jones, which sets the general rule: “a juror who is

inattentive for a substantial portion of the trial” is unqualified to serve on the jury. Jones, 369 Ill.

App. 3d at 455. When a defendant raises a claim of juror inattention, we review the trial court’s

decision for an abuse of discretion. Id.

¶ 31 The court’s analysis in Jones does not help Parker because the juror’s degree of inattention

is distinguishable. In Jones, the court collected authority and distinguished between apparent

inattentiveness for short or unimportant portions of the testimony and substantial periods of

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inattentiveness. Id. at 455-56. Indeed, the trial court in Jones realized on its own that one of the

jurors was “half asleep during almost the entire proceeding.” (Emphasis in original). Id. at 456.

¶ 32 The jury note the trial court received here shows a juror expressing concern about the

distraction of counsel’s whispering during the testimony of a witness on the second day of trial.

Without diminishing the importance of all the witnesses, the only eyewitness to Pope’s murder

(Marie Money) testified on the first day of trial, and the detective who introduced the video of

Parker’s confession testified on the third day. This level of distraction is a far cry from “almost the

entire proceeding.”

¶ 33 Both forensic experts linking the cartridge casing to the gun testified on the second day.

The juror could have been distracted during either of these witnesses; however, the juror’s note is

unclear, and the trial court made no further inquiry. But Parker confessed to shooting a gun in

Pope’s presence, and that evidence came in on the third day where no juror expressed an inability

to concentrate.

¶ 34 Parker also relies heavily on State v. Turner, 521 N.W.2d 148 (Wis. Ct. App. 1994), cited

in Jones. It, too, is distinguishable. There, at least two jurors were hard of hearing or deaf. and “at

least one did not hear the testimony of all witnesses.” Id. at 150, 151. The record showed that the

jury had trouble hearing witnesses “on twenty-three occasions during the trial.” Id. at 149. As we

point out, the juror’s note indicates difficulty concentrating during the testimony of a single witness

and does not suggest a complete or near complete inability to hear the witness at all.

¶ 35 The juror’s concern about an ability to concentrate does not rise to the level of inability to

consider relevant testimony, apparent in both Jones and Turner. Put in terms of the standard of

review, having heard first-hand the volume of counsels’ whispering, the trial court correctly

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exercised its discretion in concluding the distraction was not severe enough to warrant excusing

the juror. We find no error.

¶ 36 Chain of Custody

¶ 37 Parker argues the trial court erred in admitting evidence of the cartridge casing due to a

“complete breakdown in the chain of custody.” He bases a “complete breakdown” on the absence

of testimony from forensic investigator Smith about assigning the cartridge an inventory number

and the purported absence of testimony describing the cartridge. The State again claims this issue

is forfeited. On the merits, the State argues both Smith and Darnell established a sufficient chain

of custody that State’s exhibit 25 was the cartridge they recovered and analyzed, respectively. We

agree with the State.

¶ 38 Again, Parker’s evidentiary claim is forfeited. Though he properly objected to the chain of

custody during Smith’s testimony, he did not include the error in his posttrial motion. Enoch, 122

Ill. 2d at 186 (reciting standard for preserving issue). Parker argues, and we agree that we can

review his claim under the plain error doctrine. Under plain error, we review forfeited claims either

where (i) the evidence is closely balanced such that the error alone threatened to tip the scales

against the defendant or (ii) where the error is so serious that it affected the fairness of the trial and

challenged the integrity of the judicial process. People v. Sebby, 2017 IL 119445, ¶ 48. The first

step, however, asks whether an error occurred. Id., ¶ 49. We apply an abuse of discretion standard

in reviewing the trial court’s decision to admit physical evidence over an objection to chain of

custody. E.g., People v. Pikes, 2013 IL 115171, ¶12 (standard for alleged evidentiary errors); see

also People v. Woods, 214 Ill. 2d 455, 470 (2005) (classifying challenge to chain of custody as

“evidentiary issue”).

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¶ 39 When the State introduces a physical object at trial, it must lay a foundation either through

a witness identifying the object or through a witness establishing the chain of custody. Woods, 214

Ill. 2d 455 at 466. Where the item has “readily identifiable and unique characteristics, and its

composition is not easily subject to change,” a witness’s identification suffices; where the item is

“not readily identifiable or may be subject to tampering, contamination or exchange,” a witness

must establish chain of custody. Id. at 466-67. The State bears the burden of first showing “that

the police took reasonable protective measures” to ensure the item recovered is the same item

tested. Id. at 467. The State need not produce every link in the chain nor exclude every possibility

of tampering or contamination. Id. If the State makes its showing, the burden shifts to the defendant

to bring forward “evidence of actual tampering, substitution or contamination.” Id. Unless the

defendant can show evidence of tampering or contamination, a deficiency in the chain of custody

goes to weight, not admissibility. Id.

¶ 40 Parker highlights an exception in Woods where the admissibility of a physical object can

be challenged for a “complete breakdown” in the chain of custody. Id. at 471. The quintessential

examples are mismatched inventory numbers or inconsistent descriptions of the item. Id. Parker

maintains that both occurred here.

¶ 41 Before we analyze the Woods exception, we must determine what type of object a cartridge

casing is. Remember, the State need only establish a chain of custody for fungible or mutable

items; for an item not subject to easy alteration or exchange, in-court identification suffices. Id. at

466-67. We have held that “bullets and cartridge cases are not readily identifiable or unique items.”

People v. Smith, 2014 IL App (1st) 103436, ¶ 46. But we qualified our holding by suggesting that

bullets or cartridge casings “made unique” could be introduced by identification alone. Id.

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¶ 42 We deal with a mix of both situations. The State argues Smith and Darnell identified the

cartridge casing as having “left identifying marks on it,” but that is not quite right. When Smith

recovered the cartridge casing, he saw a small letter “U” on the bottom. His testimony shows the

“U” was already there, not a marking he made. Darnell, however, made sharpie markings directly

on the cartridge casing, including the case number, exhibit number, date, and her initials. We thus

find that Darnell “made unique” the cartridge casing such that she testified that the cartridge she

tested is the one she identified in court. Laying a foundation through her identification was,

therefore, proper. Id. Smith, however, did not make any of his own unique markings, and the State

must present a sufficient chain of custody for his identification.

¶ 43 That said, we find the chain of custody sufficient. The State must show that links in the

chain of custody took “reasonable protective measures” to ensure the evidence was not tampered

with or exchanged. People v. Echevarria, 362 Ill. App. 3d 599, 605 (2005) (citing Woods, 214 Ill.

2d at 468). Smith recovered the cartridge casing at the scene and immediately put it in an envelope,

labeling the envelope with the cartridge’s marker number and unique characteristics. He then

personally returned the cartridge to the station, where he generated an inventory number and

labeled the envelope with the number. Finally, he put the envelope in a secured locker for storage.

The State need not provide every link in the chain of custody (e.g., the person who transported the

cartridge from police station to lab), id. at 605, and we find Smith’s testimony makes a prima facie

showing of a sufficient chain of custody.

¶ 44 Parker resists that conclusion by pointing out that while Darnell recited the inventory

number, we cannot know what inventory number Smith assigned at the police station. According

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to Parker, this is akin to the mismatched inventory numbers the court in Woods envisioned as an

example of the “complete breakdown” in the chain of custody. Far from it.

¶ 45 Our supreme court has clarified since Woods that its list of examples of a “complete

breakdown” is not a “per se exception.” People v. Alsup, 241 Ill. 2d 266, 280 (2011). The context

of Woods mattered—the only evidence of the chain of custody was a description of the number of

items recovered and the inventory number. Id. (discussing Woods). In a context where one of the

few pieces of evidence establishing the chain of custody is the inventory number, a mismatch in

inventory numbers could destroy the chain. Id. Here, we do not even have a mismatch in inventory

numbers because Smith did not recite the number he assigned. We have, at most, a missing link,

far afield from a complete breakdown. Echavarria, 362 Ill. App. 3d at 605. Moreover, at trial,

Smith identified the cartridge case contained in an envelope sealed with evidence tape, and inside

another envelope describing the location, he found it. Smith also testified to the “U” stamped on

the bottom on the cartridge he identified in court.

¶ 46 For similar reasons, we reject Parker’s argument that Smith’s failure to describe the caliber

of cartridge casing as another example of a “complete breakdown.” The record indicates Smith

took “reasonable protective measures to ensure the [item] recovered *** was the same as the [item]

tested.” Woods, 214 Ill. 2d at 467. At a minimum, the State made a prima facie showing of a

complete chain of custody, and Parker has provided no evidence of substitution or tampering.

Accordingly, the trial court did not abuse its discretion and, without an error, there can be no plain

error.

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¶ 47 Ineffective Assistance of Counsel

¶ 48 Turning to the claims related to counsel, Parker argues trial counsel was ineffective for

failing to file a motion to suppress his statements. He contends that by the time he admitted to

shooting at Pope, his warnings under Miranda v. Arizona, 384 U.S. 436 (1966), had become stale.

The State responds that the Miranda warnings had not become stale, so trial counsel cannot have

been ineffective for failing to file a meritless motion. We agree with the State; the Miranda

warnings were sufficiently fresh, and no ineffectiveness claim arises from counsel declining to file

a motion to suppress Parker’s statements.

¶ 49 A defendant has the right to effective assistance of counsel. See U.S. Const., amend. VI;

Ill. Const. 1970, art. I, § 8. To establish a claim of ineffective assistance, a defendant must show:

(i) counsel’s representation fell below an objective standard of reasonableness; and (ii) prejudice

resulted from counsel’s deficient performance. People v. Burton, 2015 IL App (1st) 131600, ¶ 22

(citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). A defendant’s “[f]ailure to make

the requisite showing of either deficient performance or sufficient prejudice defeats the claim.” Id.

(quoting People v. Flowers, 2015 IL App (1st) 113259, ¶ 41). To establish prejudice from

counsel’s failure to file a suppression motion, a defendant must show that the unargued motion is

meritorious. People v. Henderson, 2013 IL 114040, ¶ 15.

¶ 50 Nobody disputes that detectives gave Miranda warnings when they first interviewed Parker

on August 7, 2014, at about 4:15 p.m. So did the warnings turned stale by about 9:40 a.m. the next

morning? New Miranda warnings become necessary only where “a substantial probability exists

that warnings given at a previous interrogation are so stale or remote that a substantial probability

exists that the suspect was unaware of his or her constitutional rights at the time [the] subsequent

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interrogation occurs.” People v. Garcia, 165 Ill. 2d 409, 426 (1995). We look to the totality of the

circumstances to determine staleness. Id.

¶ 51 Parker primarily relies on distinguishing Garcia, where the defendant gave a written

statement, consistent with her earlier statement, 2½ hours after receiving the last of multiple sets

of Miranda warnings. See id. The defendant also had “broad experience” with the criminal justice

system. Id. We agree Parker’s situation differs from the defendant in Garcia. About 15½ hours

passed between the single set of Miranda warnings and Parker’s incriminating interrogation. This

also was Parker’s first brush with the criminal justice system as an adult. But mere factual

differences between Parker’s interrogation and the interrogation in Garcia do not show his

Miranda warnings were stale.

¶ 52 Other courts have looked to a broader array of circumstances, including mistreatment,

intimidation, lack of food or sleep, change in location, escalation of charges, coercive pressure

(including deception), and lack of independent corroboration of the defendant’s initial waiver. See

United States v. Pruden, 398 F.3d 241, 247 (3d Cir. 2005). Though we are not bound by federal

authority, as a claim under the United States Constitution, we find these factors helpful to apply

the totality of the circumstances test announced in Garcia.

¶ 53 For example, we see no evidence of mistreatment. The video shows detectives offering

Parker food, drink, and opportunities to use the restroom. The detectives did not move Parker

between the two interrogations and he was aware from the beginning that he was there because of

Pope’s murder. We also have independent evidence of his initial waiver in the form of the ERI

video and the transcript of the video. We acknowledge Parker’s argument that right after his

waking, detectives started questioning him with information learned overnight. But our review of

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the video does not suggest that Parker was disoriented or the officers attempted to coerce him into

a confession through intimidation or lies.

¶ 54 One night’s sleep in the same location of the initial interrogation appears as the sole

intervening event between the first interrogation where detectives read the warnings and the second

interrogation where they did not. Thus, we conclude that a motion to suppress based on stale

Miranda warnings lacked merit, hence counsel was not ineffective for failing to file a motion

raising that claim.

¶ 55 Krankel

¶ 56 Parker also argues he sufficiently brought a claim of ineffective assistance of counsel to

the trial court’s attention during litigation of his motion for a new trial. He further argues the trial

court failed to conduct a proper inquiry under People v. Krankel, 102 Ill. 2d 181 (1984), after he

raised it. The State responds that Parker failed to make his ineffectiveness claim “expressly,” so

no inquiry was warranted. We agree with the State.

¶ 57 To trigger a Krankel inquiry into a pro se claim of ineffective assistance of counsel, usually

a defendant “must at least mention his attorney.” People v. Thomas, 2017 IL App (4th) 150815, ¶

30. Though we do not think Parker’s statements (through his attorney) were “rambling” as in

People v. Taylor, 237 Ill. 2d 68, 73-74, 77 (2010), on which the State relies, the crux of the

complaint is the same. In Taylor, the defendant complained that he would have accepted an earlier

offer if he had known the sentencing consequences. Id. at 73. His claim, like Parker’s, implied that

counsel may have been at fault (i.e., for failing to advise him about the possible sentencing range),

but never expressly mentioned counsel’s omission. See id. at 73, 76. The defendant made a similar

claim in Thomas, which the court also found insufficient. Thomas, 2017 IL App (4th) 150815, ¶¶

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25, 28. Similarly, Parker’s belief that his arrest was unconstitutional only implies a complaint that

his counsel should have filed a motion challenging his arrest.

¶ 58 We do not find Parker’s purported claim about counsel’s performance to be “express.”

Accordingly, the trial court was not under an obligation to make further inquiry under Krankel.

¶ 59 Hearing on Applicability of Miller

¶ 60 As to his sentence, Parker argues that we should remand for the trial court to consider

whether the constitutional protections for juvenile sentencing announced in Miller v. Alabama,

567 U.S. 460 (2012), and later cases, apply to him as a young adult by way of the proportionate

penalties clause. He claims the trial court was “unable to consider” the extent to which Miller may

apply to him. The State primarily responds that Parker failed to make a sufficient factual record to

determine whether Miller should apply to him as a young adult and that he already had an

opportunity to do so where he expressly raised similar arguments before the trial court. We agree

with Parker. Since the sentencing hearing was conducted without the benefit of People v. Harris,

2018 IL 121932, we will not hold Parker’s inability to develop the factual record against him

further.

¶ 61 The parties do not dispute the basic principles. The United States Supreme Court has found

all mandatory life sentences without the possibility of parole for juvenile offenders violate the

eighth amendment. Miller, 567 U.S. at 479. The Illinois Supreme Court applied Miller to de facto

life sentences, People v. Reyes, 2016 IL 119271, ¶ 10, and discretionary life sentences. People v.

Holman, 2017 IL 120655, ¶ 40. Our supreme court also set the maximum sentence a juvenile can

receive without being considered a de facto life sentence at 40 years. People v. Buffer, 2019 IL

122327, ¶ 42, and we consider the possibility of good time credit as part of our calculation. People

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v. Dorsey, 2021 IL 123010, ¶ 64. For young adult defendants, the proportionate penalties clause

of the Illinois Constitution may provide Miller protection if they can show “the evolving science

on juvenile maturity and brain development applies to [them].” Harris, 2018 IL 121932, ¶¶ 45-46.

The inquiry is fact-based and depends on more than just “basic information about the defendant.”

Id., ¶ 46.

¶ 62 Parker’s motion to reconsider his sentence extensively argues that his 45-year sentence is

unconstitutional following the framework we set out above. First, he argued that Miller should

apply to him as a young adult, explaining Miller’s focus on irreparable corruption versus transient

immaturity. Second, he cited the factors our supreme court set out in Holman for determining

whether a particular offender has the characteristics of youth mitigating against a life sentence.

Holman, 2017 IL 120655, ¶ 46. Then, he cited studies explaining that the neurological

development of juveniles continues until age 25. And (because Buffer had yet to be decided) he

outlined the reasons he could not be expected to survive a 45-year sentence. See Buffer, 2019 IL

122327, ¶¶ 31-33 (rejecting survivability as standard for determining de facto life sentence).

Finally, he cited the appellate court’s decision in Harris (it had not yet gone to the Illinois Supreme

Court) for the proposition that these protections are incorporated for young adults through the

proportionate penalties clause.

¶ 63 Parker primarily argues that the trial court imposed a 45-year sentence because the

mandatory firearm add-on tied its hands. We agree. The record contains myriad examples of the

trial court expressing its perceived inability to address Parker’s claim. We start with the court’s

initial findings. It agreed with Parker that there was not “much of aggravation at all, if any” and

acknowledged his “rough life” with a “lack of basic[ ] direction.” Though the court also expressed

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its belief that Parker could not shirk responsibility for his actions, it found “this is a case where the

minimum is appropriate especially when [its] hands are tied.”

¶ 64 After hearing argument on Parker’s motion to reconsider, the trial court continued to find

its “hands *** tied.” The court referred to its “obligat[ion] to follow *** the law that states that,

if the defendant is convicted of shooting somebody with a firearm that caused death, that requires

me to add a 25-year-to-life enhancement.” The court “appreciate[d]” Parker’s arguments about

Miller and the proportionate penalties clause but based on the “separation of powers,” believed

that the General Assembly had “taken away [its] discretion in this case.” The court concluded,

“there may be room for the high court or the appellate court to possibly look at *** those

enactments” but believed “that’s not something that [it’s] in a position to do at a trial court level.

That could be something that can be approached possibly in the appellate court or the Supreme

Court, again, to see if there are some kind of constitutional challenges that are valid to this law.”

¶ 65 At the time of Parker’s sentencing hearing, an aggregate sentence of 45 years was the

mandatory minimum sentence, where the sentencing statute mandated: (i) the trial court add the

firearm enhancement to Parker’s murder sentence, and (ii) the sentences must be served

consecutively. But, in Harris, our supreme court recognized the trial court’s responsibility to make

a factual record so that constitutional challenges to de facto life sentences can be adequately

addressed on appeal. Harris, 2018 IL 121932, ¶ 40 (chastising appellate court for addressing

defendant’s as-applied constitutional challenge where “an evidentiary hearing was not held on his

constitutional claim, and the trial court did not make any findings of fact on defendant’s specific

circumstances.”).

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¶ 66 We express no opinion on the merits of applying Miller protections to Parker as a young

adult. We hold that the trial court should have addressed his constitutional claim by operation of

the mandatory firearm add-on. We vacate Parker’s sentence and remand for the trial court to make

a factual record and address Parker’s Miller claim.

¶ 67 Correcting the Mittimus

¶ 68 The parties agree that we should order the clerk of the circuit court to amend Parker’s

mittimus to reflect one count of first degree murder. Because we vacate Parker’s sentence and

remand for further proceedings, the mittimus currently in the record will no longer be the operative

judgment once our mandate issues. We, therefore, decline to order a correction of the mittimus.

¶ 69 Affirmed in part and vacated in part.

¶ 70 Cause remanded.