People v. Nieto, 1–12–1604.
| Decision Date | 23 March 2016 |
| Docket Number | No. 1–12–1604.,1–12–1604. |
| Citation | 402 Ill.Dec. 521,52 N.E.3d 442 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Michael NIETO, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Alan D. Goldberg, and Jeffrey Svehla, all of State Appellate Defender's Office, Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Tasha–Marie Kelly, and Lori M. Rosen, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Defendant Michael Nieto appeals from the trial court's order summarily dismissing his pro se petition under the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2012)). On appeal, defendant argues for the first time that his sentence is unconstitutional as applied under the eighth amendment to the United States Constitution (U.S. Const., amend.VIII), and Illinois' proportionate penalties clause (Ill. Const. 1970, art. I, § 11 ). After considering the complex state of case law following Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), including the United States Supreme Court's most recent pronouncement in Montgomery v. Louisiana, 577 U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), we vacate defendant's sentence and remand for resentencing. We affirm the judgment in all other respects.
¶ 4 The evidence presented at defendant's jury trial generally showed that on July 14, 2005, defendant, age 17, was riding in a black Ford Expedition with three other Latin Kings. While in a residential neighborhood, the young men encountered a red Jeep Cherokee whose occupants, victim Richard Soria and victim Israel Fernandez, allegedly used a sign disrespecting the Latin Kings. The Ford chased the Jeep. Ultimately, defendant, the front-seat passenger, shot at the Jeep, fatally shooting Soria in the head and injuring Fernandez. Defendant subsequently told his brother-in-law that defendant had just “lit up some flakes” and that one victim received a “dome shot.” The jury found defendant guilty of the first degree murder of Soria and the aggravated battery with a firearm of Fernandez. Additionally, the jury found that defendant personally discharged a firearm which proximately caused Soria's death.
¶ 6 The presentence investigative report (PSI) stated, among other things, that defendant's highest level of education was the eighth grade. He was expelled from his freshman year of high school for fighting. In 2006, defendant failed the GED exam but planned to retake it and earn a business degree. Although defendant was unemployed, he had previously done some remodeling work and sold drugs to support himself.
¶ 7 According to the PSI, defendant stated that his father was in poor health, having been shot and stabbed at various times, and had been incarcerated for defendant's entire life. Defendant also stated that he was primarily raised by his maternal grandmother because his mother was a drug addict. For two years, defendant and his mother lived with her boyfriend. Her boyfriend, however, decided he did not want defendant to live with them. As a result, defendant lived with his paternal grandfather in Texas, where he remained until 2002. At that time, defendant's mother summoned him back to Chicago due to his grandmother's poor health. Defendant received counseling after his grandmother's death and believed that he could benefit from further counseling but had not requested it because it was “too much trouble.” Defendant subsequently lived with friends or on his own. Defendant also reported that his only friend happened to be a gang member with a criminal record. We note that defendant's brother-in-law testified that at the time of the offense, defendant occasionally lived with his family.
¶ 8 Defendant, who smoked marijuana daily, had committed armed robbery, attempted robbery and possession of cannabis as a minor. Tragically, he had pending charges of involuntary manslaughter and reckless discharge of a firearm for accidentally killing his younger brother, Elias Nieto, on December 24, 2005, after the present offense.
¶ 9 At sentencing, Detective Robert Girardi testified he learned that defendant possessed a gun which jammed and then discharged, accidentally shooting Elias. Defendant held Elias' hand on the way to the hospital and unsuccessfully tried to resuscitate him. Detective Girardi was informed that defendant had asked his mother to come to the police station, but she refused to see him. Following the detective's testimony, the State presented the victim impact statements of Soria's father, sister and brother-in-law. The State argued that defendant deserved the maximum sentence available, while defense counsel argued that even the aggregate minimum sentence of 51 years would ensure that defendant would not be released until he was almost 70 years old.
¶ 10 The trial court stated that it considered all of the evidence, arguments and defendant's offenses. In aggravation, the court found that defendant shouted gang slogans and used a firearm belonging to his gang to fire multiple times at unarmed victims, who were Satan Disciples. Additionally, no serious provocation was involved. Afterward, defendant told fellow gang members that he “lit up some flakes.” The court also found that defendant and his companions used police scanners to get information and avoid prosecution The court further found that not only was defendant's criminal conduct likely to recur, but it did recur, given the shooting of Elias. The court also observed that defendant blamed Elias for defendant's own decision to tell the police that Satan's Disciples shot Elias, which potentially caused the police to pursue rival gang members. Nonetheless, the court recognized defendant's “considerable remorse for his brother's death and regret at what he considered to be an accidental shooting.”
¶ 11 With respect to gang activity, the court considered deterrence:
The court also rejected defense counsel's suggestion that defendant lacked the opportunity to receive therapy. Instead, the court found the PSI showed he had the opportunity but decided it was too much trouble to take advantage of. The court further stated, “[h]is character and attitude as displayed over the course of his life does not indicate to me significant rehabilitative potential.”
¶ 12 With that said, the court also stated as follows:
The court sentenced defendant to 35 years in prison for first degree murder, 25 years for the personal discharge of a firearm, and 18 years for aggravated battery with a firearm, all to be served consecutively for a total of 78 years.
¶ 13 Defendant moved for the court to reconsider given that he was only 17 years old on the date of the offense and would be required to serve 75.3 years of his sentence after receiving sentencing credit. Defendant argued that his sentence did not adequately reflect his potential for rehabilitation and restoration to useful citizenship. Furthermore, defendant argued that recent studies showed long prison sentences do not affect deterrence and that the court's statement regarding sending a message to gang members was against the prevailing academic view.
¶ 14 The court denied defendant's motion. Consequently, defendant will not complete his sentence until he is approximately 94 years old.1
¶ 16 We affirmed the judgment on direct appeal, rejecting among other things, defendant's assertion that his sentence was excessive. People v. Nieto, No. 1–09–0670, 406 Ill.App.3d 1209, 376 Ill.Dec. 173, 998 N.E.2d 715 (2011) (). Specifically, defendant argued that his 78–year sentence was the equivalent of a life sentence and negated the possibility of restoring him to useful citizenship. We stated, “[t]here is no dispute that this young man represents a rather tragic figure and that the arc of his life has been unredeemably sad.” Nonetheless, we adhered to the legal presumption that the trial court...
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