People v. Murbarger

NOTICE
                                      2026 IL App (5th) 230430
 Decision filed 04/13/26. The
 text of this decision may be               NO. 5-23-0430
 changed or corrected prior to
 the filing of a Petition for
 Rehearing or the disposition of
                                               IN THE
 the same.
                                   APPELLATE COURT OF ILLINOIS

                               FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellee,                       )     Wayne County.
                                                )
v.                                              )     No. 20-CF-162
                                                )
BRODEY I. MURBARGER,                            )     Honorable
                                                )     Michael J. Molt,
      Defendant-Appellant.                      )     Judge, presiding.
______________________________________________________________________________

          JUSTICE SHOLAR delivered the judgment of the court, with opinion.
          Justices Boie and McHaney * concurred in the judgment and opinion.

                                           OPINION

¶1        A Wayne County jury found defendant, Brodey I. Murbarger, guilty of first degree murder.

The trial court sentenced him to 50 years in prison with 3 years of mandatory supervised release.

Defendant raises three arguments on appeal. First, defendant contends that the trial court’s denial

of a request for change of venue and request for appointment of an expert to conduct a phone

survey deprived him of the right to a trial by an impartial jury. Next, defendant contends that he is

entitled to a hearing pursuant to People v. Harris, 2018 IL 121932, to determine whether the

sentencing protections established in Miller v. Alabama, 567 U.S. 460 (2012), apply to him.

Finally, defendant contends that two of his murder convictions must be vacated under the one-act,



          *
         Justice Moore was originally assigned to the panel prior to his retirement. Justice McHaney was
substituted on the panel and has read the briefs.
                                                   1
one-crime rule because there was only one decedent. For the reasons that follow, we affirm

defendant’s conviction. However, we vacate defendant’s convictions and sentences on counts I

and II and order the mittimus corrected accordingly.

¶2                                    I. BACKGROUND

¶3     We recite only those facts necessary to our disposition. The State charged defendant by

information with the first degree murder of Megan Nichols. Count I alleged that defendant

knowingly caused Nichols’s death by suffocation. Count II alleged that defendant knowingly

caused her death by strangulation. Count III alleged that he knowingly caused her death by means

unknown.

¶4     At the time of the offense, defendant was 18 years old. Nichols went missing in July 2014

when she was 15 years old. Defendant and Nichols were in a dating relationship. Nichols remains

were discovered in December 2017, and defendant was ultimately arrested in October 2020.

Defendant was 26 years old at the time of his trial.

¶5     Prior to trial, defendant filed a “motion for change of place of trial.” In his motion, he asked

for a transfer of his trial to a different county. He argued that residents of Wayne County were

prejudiced against him because of the extensive pretrial publicity his case received. Defendant

argued that he experienced “harassment and scorn” and the pretrial publicity was of a nature and

extent that “it would be impossible to find a jury from Wayne County that was free of prejudice”

against him.

¶6     Defendant also filed a motion for the appointment of an expert to conduct a survey of the

residents of Wayne County in support of his motion. Defendant noted that he was indigent and

could not afford to hire an expert. The estimated cost of a survey was $8,000 to $12,000.




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¶7     On March 18, 2022, the trial court held a hearing on defendant’s motion to hire an expert

to conduct a phone survey. Defense counsel argued that Wayne County was a rural county with

few residents. Counsel argued that the residents of the county could not be fair and impartial due

to “pretrial publicity, rumors, innuendo, and other prejudicial information that’s been distributed

throughout the community by the radio station, by the news media, by Dateline NBC, and by all

kinds of various social media sources.” Counsel argued that a survey would support defendant’s

motion for change of venue. Counsel noted that a survey would cost between $8,000 and $12,000.

The State responded, arguing that defendant failed to make a showing of prejudice that the phone

survey was necessary. The State acknowledged that defendant had a constitutional right to a fair

and impartial trial; however, it argued that he did not have the constitutional right to conduct a

phone survey. The State argued that the best way to pick the jury was through voir dire.

¶8     Following arguments from the parties, the court denied defendant’s motion for an expert.

The court reasoned that voir dire would obtain a fair jury in defendant’s case. Specifically, the

court noted that it reviewed the case law and the facts of the case. The court determined that

voir dire was the best method to pick a jury. The court noted that if they were unable to pick a “fair

and unbiased jury out of Wayne County,” then “we’re not going to have” a trial.

¶9     On July 12, 2022, the trial court held a hearing on defendant’s motion for change of venue.

Defense counsel first submitted Facebook comments related to the case. Defense counsel read

negative comments from various social media and news posts aloud to the trial court. Defense

counsel argued that, based on the comments, defendant could not receive a fair trial in Wayne

County. Counsel argued that the case was “the talk of the town in Wayne County since 2014 when

she disappeared and then again when her remains were discovered.” The State responded, noting

that not all residents of Wayne County use social media. The State also argued that “approximately


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25 individuals” made “negative comments” on the posts submitted by defense counsel. Even so,

the State noted that there was no indication that the 25 commenters were residents of Wayne

County. The State further argued that any prejudice would be weeded out during the jury selection

process. In rebuttal, defense counsel noted that signs to “pray” for Nichols were posted throughout

the county.

¶ 10   Following arguments from counsel, the trial court initially noted that if the motion was

denied, it would “allow it to be renewed during voir dire or in the event that I deny the Motion and

we can’t select an appropriate jury.” Turning to the social media posts, the court observed that

“some comments show a favorable position toward the Defendant.” The court acknowledged that

others were “unfavorable.” Following its comments, the court took the matter under advisement.

The court again stated, “I will emphasize that if I deny this Motion, it will be allowed to be renewed

obviously if—during voir dire or if we’re unable to pick a jury.”

¶ 11   On August 15, 2022, in a written order, the trial court denied the motion for change of

venue. The court determined that people commenting on social media may not be residents of

Wayne County. The court noted that it reviewed social media comments submitted by defense

counsel, and it observed that some comments were neutral as to defendant’s guilt or innocence.

The court determined that of the 36 comments listed in the exhibits, 9 of the comments were neutral

as to defendant’s guilt or innocence. The court noted that “11 of the comments were, in fact, either

favorable to the Defendant, or indicated that the Defendant was entitled to due process and entitled

to have all of his legal and constitutional rights protected during the trial.” The court acknowledged

that 16 comments indicated that the commenter “had a pre-conceived opinion as to the guilt of the

Defendant which was not favorable to the Defendant.”




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¶ 12    The trial court noted that as of August 8, 2022, there were 10,750 registered voters in

Wayne County. According to the court, “There were approximately 47% of the comments, from

the Exhibits filed in this case, which were favorable, or at least which indicated the commenter

was unbiased toward the Defendant.” The court calculated: “If it is assumed that the commenters

were a representative sample of the potential jurors in Wayne County, there would be 5,052 of the

registered voters in Wayne County, Illinois, all of whom could be potential jurors, who would not

be prejudiced or biased against the Defendant.” The court also noted that, “Voir dire is the proper

process to select a fair and impartial jury in this case, and it is the Court’s opinion that the voir dire

process should be undertaken before any decision is to be made to change the place of this trial.”

The court again stated that defendant was “entitled to renew his Motion for Change of Place of

Trial in the event it is determined that it is not possible to select a fair and impartial jury during the

voir dire process.” Thus, the court denied defendant’s motion for change of venue.

¶ 13    The matter proceeded to voir dire. Out of 45 potential jurors, 12 jurors and 2 alternates

were selected. After the jury was selected, defendant renewed his motion for change of venue.

Defense counsel argued that the majority of the venire were familiar with the case. The trial court

denied the motion, noting that the 12 jurors and 2 alternates indicated that they could be fair and

impartial, did not follow any publicity closely, and did not have preconceived opinions about the

case.

¶ 14    Following the jury trial, after approximately one hour of deliberations, the jury found

defendant guilty of all three counts of first degree murder. Relevant to this appeal, in a motion for

a new trial, defendant argued that the trial court erred by denying his motion for the appointment

of an expert and for a change of venue. The court denied the motion.




                                                    5
¶ 15   The matter proceeded to sentencing. Defense counsel argued that defendant had no history

of prior delinquency and was a “good kid from a good home.” Counsel specifically argued that the

lack of criminal history was a factor in mitigation. Counsel stated:

       “We believe that his lack of criminal history, the fact that he was 18 years old at the time

       of the offense for which he was convicted, the fact that he did not have any criminal

       charges, parking tickets, speeding tickets, anything, the fact that he was a good student,

       that he got good grades and graduated from high school, graduated from junior college and

       graduated from college and that he mentored students and taught them shows that he

       deserves a lesser sentence ***.”

In his statement of allocution, defendant maintained his innocence.

¶ 16   In rendering its sentence, the trial court noted that it reviewed the presentence investigation

report. The court acknowledged that defendant had no juvenile record, no criminal record, and was

a “very good” student. Defendant also had a strong employment history, and the court considered

those factors in mitigation. The court also noted that it would not consider defendant’s maintaining

his innocence against him. Without mention of youth and its attendant circumstances, the trial

court sentenced defendant to 50 years in prison. The mittimus reflected that defendant was

convicted of three counts of first degree murder, and each sentence of 50 years would run

concurrently with the others.

¶ 17   Following the imposition of the sentence, defense counsel clarified:

               “[DEFENSE COUNSEL]: Just one further matter of clarification as far as the

       sentence. My review of the sentencing order was that there was a 50-year sentence listed

       individually for Counts 1, 2 and 3. I just want to clarify that those merge for purposes of

       sentencing and that he serves one 50-year sentence.


                                                 6
               THE COURT: That’s correct. The law does not allow more than one 50-year

       sentence with one death, regardless of the three counts.

               [DEFENSE COUNSEL]: Thank you, your Honor.

               THE COURT: It’s one 50-year sentence.”

¶ 18   In an amended motion to reconsider sentence, relevant to this appeal, defendant argued that

his sentence violated the Illinois proportionate penalties clause pursuant to Miller, 567 U.S. 460,

where the court did not consider the factors of youth discussed in Miller, and requested an

evidentiary hearing to develop the record as to why those factors should apply to him. Specifically,

defendant contended that he was 18 years old at the time of the offense. He argued that the court

failed to consider mitigating factors including his “young age at the time of the offense, the death

of his mother 7 months prior to the offense, his lack of emotional and mental health support

following the death of his mother, and his successful educational career following this incident.”

Counsel also argued that defendant’s 50-year sentence violated the proportionate penalties clause

where the court failed to take into account his “potential for rehabilitation and restoration as a

citizen of the State of Illinois.” In support thereof, defendant relied on Miller and its progeny.

¶ 19   Moreover, defendant pointed to Harris, 2018 IL 121932, which he argued allowed a

method for young offenders to demonstrate, through development of an adequate factual record,

that the protections of Miller apply to them. Defendant requested an “evidentiary hearing be held,

in light of the harsh sentence, whereby he can further develop the record and introduce evidence

as to why the Miller factors and Buffer requirements [(see People v. Buffer, 2019 IL 122327)]

should apply to him.”

¶ 20   The trial court held a hearing on the amended motion to reconsider sentence on June 16,

2023. Relevant to this appeal, defense counsel argued that “a 50-year sentence for a first offender,


                                                  7
such as [defendant], who was 18 years and 7 months of age” at the time of the offense violated the

proportionate penalties clause where the court failed to

       “take into account his particular mitigating factors, such as his young age, 18 years and 7

       months, his—the death of his mother 7 months prior to this offense, the lack of his

       emotional and mental health support following the death of his mother, and his particular

       suitability for rehabilitation, such as his successful academic career that he was engaged in

       following the date of this incident.”

Counsel argued that, had the mitigating factors been taken into consideration, defendant may have

received a lesser sentence than 50 years.

¶ 21   Defense counsel acknowledged that defendant was not a juvenile. However, counsel

explained that he was a “young adult” and that “some of the protections afforded to a juvenile

offender should also be afforded to a young adult offender.” For these reasons, defense counsel

argued that the trial court should reconsider its imposition of a 50-year sentence. Additionally,

counsel asked the court to grant defendant “leave to have an Evidentiary Hearing, to find out if his

Mitigating Factors make him more akin to a—a youth offender than a young-adult offender and

whether or not the Miller protection should apply to him.”

¶ 22   In response, the State discussed Harris, noting that the record demonstrated:

       “So what do we have in our record about the underdevelopment of the brain of a juvenile?

       So the defense making this argument wants to argue that Brodey Murbarger, at the time,

       was similarly situated to a juvenile. Okay? We know about Brodey Murbarger. He was an

       A.P. Honors high school student. He had graduated from high school prior to committing

       this offense. He had went on after that A.P. high school graduation to attend college, to

       publish articles, to be an instructor in some of his classes in college. So, in fact, the record


                                                  8
       in our case would indicate exactly the opposite about the maturity and development of his

       brain.”

¶ 23   The State argued that defendant’s own character letters demonstrated that defendant

excelled academically and professionally, which “contradicts any underdeveloped-brain theory.”

The State argued,:

       “These are all in the record. They’re all letters that you considered in mitigation. They’re

       all let—information and facts that contradict that this defendant was like a juvenile or at

       the stage of a juvenile or similar—similarly situated somehow to a juvenile. Nothing in the

       record supports that, Your Honor.”

¶ 24   Following arguments from counsel, the court denied the motion. The court noted that

defendant was not a juvenile at the time of the offense. The court noted that it considered defense

counsel’s argument that defendant “had attributes of a juvenile”; however, the court noted that

defendant was “more adult-like than juvenile-like.” The court explained:

       “[H]is actions were, in my opinion, more adult-like than juvenile-like. He—he was able to

       conceal this event for about six years. He was able to hold a job. That’s a—an adult-like

       action. Actually, two jobs. And then—two part-time. And then, became a full-time job.

       That’s an adult-type action. He was able to succeed in junior college and college. That’s

       more like an adult. That’s what a lot of parents would like their kids to—okay. Be an adult.

       Go to college. Go to class. Make your grades. Don’t be a juvenile. So he—much of the

       material that’s in the record skews Mr. Murbarger toward the adult side, rather than a

       juvenile side.”

¶ 25   The court also explained that defendant’s sentencing range was 20 to 60 years, and

defendant was ultimately sentenced to 50 years. Thus, the court considered defendant’s mitigating


                                                9
factors in fashioning a sentence under the maximum. For these reasons, the court denied

defendant’s motion to reconsider. The court also denied defendant’s request for an evidentiary

hearing “to show that [defendant] had more attributes of a juvenile than an adult.”

¶ 26   This timely appeal followed.

¶ 27                                    II. ANALYSIS

¶ 28   Defendant raises three arguments on appeal. First, defendant contends that the trial court’s

denial of a request for change of venue and request for appointment of an expert to conduct a phone

survey deprived him of the right to a trial by an impartial jury. Next, defendant contends that he is

entitled to a hearing pursuant to Harris, 2018 IL 121932, to determine whether the sentencing

protections established in Miller, 567 U.S. 460, apply to him. Finally, defendant contends that two

of his murder convictions must be vacated under the one-act, one-crime rule, because there was

only one decedent. We address each argument in turn.

¶ 29                                  A. Change of Venue

¶ 30   Defendant first argues that the trial court’s denial of his request for a change of venue and

request for appointment of expert to conduct a phone survey deprived defendant of his right to a

trial by an impartial jury. In support of his argument, defendant contends that “extensive media

coverage and community gossip about the nature and details of the case demonstrated a reasonable

apprehension that [defendant] could not receive a fair and impartial trial in rural Wayne County.”

The State responds, arguing that the court did not abuse its discretion by denying defendant’s

motions for change of venue and for appointment of an expert. We agree with the State.

¶ 31   First, we consider whether the trial court abused its discretion by denying defendant’s

motion for change of venue. The State argues that defendants “have the right to a jury that will




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decide the case on the evidence before it, not to jurors ignorant of all facts and issues involved.”

The State also contends that voir dire is the best means of ascertaining juror impartiality. We agree.

¶ 32    The denial of a change in venue will not be disturbed absent an abuse of discretion. People

v. Jones, 83 Ill. App. 3d 168, 169 (1980). “An abuse of discretion will be found only where the

trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take

the view adopted by the trial court.” People v. Hall, 195 Ill. 2d 1, 20 (2000) (citing People v. Illgen,

145 Ill. 2d 353, 364 (1991)). According to section 114-6(a) of the Code of Criminal Procedure of

1963 (Code), “[a] defendant may move the court for a change of place of trial on the ground that

there exists in the county in which the charge is pending such prejudice against him on the part of

the inhabitants that he cannot receive a fair trial in such county.” 725 ILCS 5/114-6(a) (West 2018).

The defendant is entitled to a change of venue where there are reasonable grounds to believe that

the prejudice alleged exists and there is a reasonable apprehension that the defendant cannot

receive a fair and impartial trial. People v. Gendron, 41 Ill. 2d 351, 354 (1968).

¶ 33    Both the United States and the Illinois Constitutions protect a defendant’s right to a trial

before an impartial jury. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. For a jury’s verdict

to be impartial and fair, it must be solely based on the evidence heard during trial and not on

information obtained elsewhere. People v. Taylor, 101 Ill. 2d 377, 386 (1984). If a defendant is

denied his right to a fair trial because of the denial of a motion for change of venue or because of

the denial of a challenge for cause to a juror, defendant must receive a new trial. Id. at 387. When

determining whether a defendant received a fair trial from an impartial jury, “there is no simple

test which we can apply to every case.” Id. at 391. Rather, the decision must be based on the totality

of the circumstances. Id.




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¶ 34   The right to an impartial jury does not require that jurors be completely ignorant of the case

before trial. People v. Coleman, 168 Ill. 2d 509, 547 (1995). Heinous crimes are reported

extensively in the media, and it would be unreasonable to expect jurors not to have at least heard

of those cases prior to trial. Taylor, 101 Ill. 2d at 386. An impartial jury can be secured under such

circumstances if the jurors are willing and able to put aside their preconceptions and decide the

case based upon the evidence presented at trial. Coleman, 168 Ill. 2d at 547. Ordinarily, the best

way to determine whether a juror can be impartial is to ask. Taylor, 101 Ill. 2d at 398. Voir dire is

a significant tool in determining whether a juror can lay aside any biases and make a determination

solely on the basis of evidence presented in court. Id.

¶ 35   In support of his position, defendant relies upon Taylor. In Taylor, the 13-year-old

defendant was charged with murder in a highly publicized case. Id. at 381-83. The

“unprecedented” media coverage reported that defendant’s suspected codefendant had been

released after passing a polygraph test, while the results of defendant’s polygraph test were

“inconclusive.” Id. at 383. The voir dire questioning revealed that six of the jurors who ultimately

found defendant guilty were aware that the codefendant had been released, and three connected

his release to his performance on the polygraph test. Id. at 388. Our supreme court found that

defendant was denied a fair trial because of the prejudicial effect of the knowledge of the lie

detector test. Id. at 395-96. Based on the unprecedented volume of publicity combined with the

highly prejudicial nature of the polygraph results, the supreme court held that the jurors’ claims to

impartiality could not be accepted, and any jurors with knowledge of the polygraph results should

have been excused. Id. “If the biasing effect of the information is so powerful that it cannot be

considered, even under the controlled conditions of the courtroom, then certainly access to the




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same biasing information, under the uncontrolled influence of the news media, cannot be allowed

to affect the outcome of a trial.” Id. at 392.

¶ 36    This case is distinguishable from Taylor, where the media coverage in this matter,

specifically social media posts highlighted by defense counsel, was not as highly prejudicial as the

polygraph evidence at issue in Taylor. This is particularly true where the parties empaneled 12

jurors who indicated that they could be fair and impartial, had limited, if any, knowledge of the

case from the media, and did not have preconceived opinions about the case. In denying

defendant’s motion, the trial court acknowledged that there was publicity about the case; however,

the court determined that any bias or prejudice would be discovered during voir dire. The court

also kept the door open for counsel to renew his motion for a change of venue during jury selection,

should the parties struggle to empanel a jury. We finally note that Nichols went missing in July

2014, her remains were discovered in December 2017, and defendant was ultimately arrested in

October 2020. Defendant’s trial commenced in October 2022. A lapse of time between the

publicity and actual trial may be sufficient to dissipate any feeling of prejudice resulting from the

pretrial publicity. People v. Black, 52 Ill. 2d 544, 558 (1972).

¶ 37    The record before us demonstrates that the trial court carefully considered the arguments

of the parties, took the matter under advisement, and continued to research the impact of social

media on its decision. We cannot say that the trial court’s thoughtful and well-reasoned approach

to this issue constituted an abuse of discretion, which, as explained above, occurs “only where the

trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take

the view adopted by the trial court.” Hall, 195 Ill. 2d at 20 (citing Illgen, 145 Ill. 2d at 364). For

these reasons, the trial court did not abuse its discretion by denying defendant’s motion for change

of venue.


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¶ 38    Next, we consider whether the trial court abused its discretion by denying the motion for

appointment of an expert to conduct a phone survey. We review a trial court’s denial of a motion

for an expert witness for an abuse of discretion. In re Commitment of Lingle, 2018 IL App (4th)

170404, ¶ 39. We reiterate that “[a]n abuse of discretion will be found only where the trial court’s

ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view

adopted by the trial court.” Hall, 195 Ill. 2d at 20 (citing Illgen, 145 Ill. 2d at 364).

¶ 39    A trial court has the authority to appoint an expert witness at no cost to an indigent

defendant pursuant to the Code in a capital case and may order the county pay for necessary expert

witnesses “reasonable compensation *** not to exceed $250.” 725 ILCS 5/113-3(d) (West 2018)).

This section was expanded by the supreme court to include noncapital felonies. People v. Watson,

36 Ill. 2d 228, 234 (1966). The supreme court also ruled that courts could exceed the $250 limit

prescribed in the Code. People v. Kinion, 97 Ill. 2d 322, 336 (1983). However, there must first be

a showing that the expert’s services are necessary to prove a crucial issue in the case and also that

the lack of funds would prejudice the defendant. People v. Glover, 49 Ill. 2d 78, 82-83 (1971),

overruled on other grounds by People v. Lopez, 207 Ill. 2d 449 (2003).

¶ 40    In the case before us, defendant failed to establish a critical need for an expert witness to

conduct a phone survey in support of his motion for change of venue. The trial court determined

that voir dire would obtain a fair jury in defendant’s case. Specifically, the court noted, “I believe,

based on the case law that I reviewed, the fact of the case, and the fact that I believe and the case

law supports voir dire is the best method to pick a jury.” The court noted that if they were unable

to pick a “fair and unbiased jury out of Wayne County,” then “we’re not going to have” a trial. We

cannot say that the trial court’s ruling denying funding for an expert witness amounted to an abuse

of discretion because we do not conclude that ruling was “arbitrary, fanciful, [or] unreasonable,”


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and we do not believe that “no reasonable person would take the view adopted by the trial court.”

Hall, 195 Ill. 2d at 20 (citing Illgen, 145 Ill. 2d at 364). For these reasons, the trial court did not

abuse its discretion by declining to appoint an expert to conduct a phone survey of potential jurors.

¶ 41                                     B. Sentencing

¶ 42   Next, we consider whether defendant’s 50-year prison sentence violated the proportionate

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) due to defendant’s youth

and attendant circumstances. Defendant argues that this court should remand this cause for a

hearing pursuant to Harris, 2018 IL 121932, to determine whether the sentencing protections

established in Miller, 567 U.S. 460, apply to 18-year-old defendant. The State responds, arguing

that defendant’s proportionate penalties clause claim is meritless.

¶ 43   Here, defendant was undoubtedly not a juvenile when the murder in this case occurred. At

the time of the offense, defendant was 18 years old. Accordingly, Miller and its progeny is

inapplicable to this case. See id. at 489. Succinctly stated, this case does not involve a juvenile

offender.

¶ 44   Nonetheless, defendant contends that this court should remand for a hearing pursuant to

Harris, 2018 IL 121932, ¶¶ 54-61. Specifically, defendant alleges that he is entitled to an

evidentiary hearing under Harris for the trial court to determine whether the imposition of a

de facto life sentence is unconstitutional as applied to him. Defendant claims that such a hearing

is necessary where the trial court failed to utilize the prescribed procedure for addressing an as-

applied constitutional challenge. An as-applied constitutional challenge is a legal question that we

review de novo. People v. House, 2021 IL 125124, ¶ 18; People v. Coty, 2020 IL 123972, ¶ 22.

¶ 45   Following briefing and oral argument in this matter, in People v. Spencer, 2025 IL 130015,

the Illinois Supreme Court considered whether a 20-year-old offender’s 100-year sentence violated


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the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because

it was a de facto life sentence. In Spencer, a unified court reiterated that Miller only applies to

juveniles and not to emerging adults. Spencer, 2025 IL 130015, ¶ 48. However, the Spencer court

determined that the 20-year-old offender’s 100-year sentence was not a de facto life sentence,

where he had a meaningful opportunity for parole after 20 years. Id. Nonetheless, the supreme

court determined that the defendant was “not foreclosed from bringing his proportionate penalties

claim in a postconviction petition.” Id. For the reasons that follow, we find Spencer instructive.

¶ 46    In Spencer, the State charged the defendant with first degree murder, attempted murder,

and home invasion, for offenses that occurred when the defendant was 20 years old. Id. ¶ 1. A jury

ultimately convicted the defendant of all three charges. Id. The trial court sentenced the defendant

to an aggregate 100 years in prison. Id.

¶ 47    The defendant appealed, arguing that as applied to him, his sentence violated the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because it

was a de facto life sentence. Spencer, 2025 IL 130015, ¶ 1. The First District disagreed, finding

that the defendant’s eligibility for parole pursuant to section 5-4.5-115(b) of the Unified Code of

Corrections (Code of Corrections) (730 ILCS 5/5-4.5-115(b) (West 2020)) precluded his 100-year

aggregate sentence from being a de facto life sentence. People v. Spencer, 2023 IL App (1st)

200646-U, ¶ 143.

¶ 48    The Illinois Supreme Court accepted the defendant’s petition for leave to appeal. Before

the supreme court, the defendant argued that as applied to him, his de facto life sentence violated

the Illinois proportionate penalties clause and that Illinois’s youth parole statute (730 ILCS 5/5-

4.5-115(b) (West 2020)) did not cure the imposition of an otherwise unconstitutional sentence.

Spencer, 2025 IL 130015, ¶ 23. Specifically, he argued that the imposition of a 100-year sentence


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without consideration of Miller-based, youth-related factors in mitigation violated the

proportionate penalties clause. Id.

¶ 49    First, the Illinois Supreme Court reiterated its position that Miller did not apply to emerging

adults. Id. ¶¶ 27-32. The court noted that it “continue[d] to hold that Miller only applies to juveniles

and does not apply to emerging adults.” Id. ¶ 32.

¶ 50    However, the court went on to explain that the parole review statutes precluded the

defendant’s sentence from being a de facto life sentence. Id. ¶¶ 33-40. The Spencer court

acknowledged that “the science that helped form the basis for the Miller decision may assist

emerging adult defendants in supporting an as-applied, proportionate penalties clause challenge”

relying on Harris. Id. ¶ 34 (citing Harris, 2018 IL 121932, ¶ 46). Because the defendant in Spencer

was under the age of 21 at the time of his offenses, he was eligible for parole review by the Prisoner

Review Board after serving 20 years or more of his sentences (730 ILCS 5/5-4.5-115(b) (West

2020)). Spencer, 2025 IL 130015, ¶ 35. Thus, the defendant was sentenced under a statutory

scheme that made him eligible for parole before he spent more than 40 years in prison. Id. The

supreme court previously established in People v. Dorsey, 2021 IL 123010, ¶¶ 39, 50, and People

v. Buffer, 2019 IL 122327, ¶ 40, that a prison sentence of 40 years or more constituted a de facto

life sentence.

¶ 51    The supreme court determined that based on the statutory provision invoked to review

parole petitions for emerging adults convicted of first degree murder provides that the opportunity

for release requires consideration of “the diminished culpability of youthful offenders, the

hallmark features of youth, and any subsequent growth and maturity of the youthful offender

during incarceration” (730 ILCS 5/5-4.5-115(j) (West 2020)). Spencer, 2025 IL 130015, ¶ 40. In

Spencer, specifically because the defendant was under 21 at the time of the offense, he would be


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eligible for parole review after serving 20 years of his sentence. Id. Therefore, he was allowed “a

meaningful opportunity to obtain release before he spends 40 years in prison.” Id. Because of this,

the supreme court determined that he was not sentenced to a de facto life sentence. Id.

¶ 52   Similarly, here, defendant’s crime subjected him to a prison term of 20 to 60 years for first

degree murder (see 720 ILCS 5/9-1 (West 2020)). Because the defendant was 18 years old at the

time of the offense, he is eligible for parole under section 5-4.5-115 of the Code of Corrections.

See 730 ILCS 5/5-4.5-115(b) (West 2020). In other words, defendant was, therefore, sentenced

under a statutory scheme that makes him eligible for parole before he serves more than 40 years

in prison. As such, similar to Spencer, defendant did not receive a de facto life sentence.

¶ 53   However, the supreme court did not end its analysis there. Rather, the court went on to

determine that the Spencer defendant was not foreclosed from bringing his as-applied challenge to

his sentence pursuant to the Illinois proportionate penalties clause. Spencer, 2025 IL 130015,

¶¶ 41-46. The court noted that a “defendant may challenge a sentence of any length.” Id. ¶ 43.

Relying on People v. Hilliard, 2023 IL 128186, ¶ 29, the Spencer court stated, “the Illinois

Constitution does not limit a proportionate penalties challenge to just juveniles or individuals with

life sentences.” Spencer, 2025 IL 130015, ¶ 43. The court also reiterated that “this court has not

barred young adult defendants from raising as-applied proportionate penalties clause challenges to

life sentences based on the evolving science regarding juvenile maturity and brain development.”

Id.

¶ 54   In order to raise the as-applied challenge, the supreme court noted that “it is paramount that

the record be sufficiently developed in terms of those facts and circumstances for purposes of

appellate review.” (Internal quotation marks omitted.) Id. ¶ 44. The court pointed to Harris, 2018

IL 121932, ¶¶ 1, 41, wherein an 18-year-old defendant was sentenced to a mandatory minimum


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aggregate term of 76 years’ imprisonment and the supreme court stated that the record needed to

be sufficiently developed in the circuit court through an evidentiary hearing and findings of fact to

review the defendant’s constitutional claim. Additionally, in House, 2021 IL 125124, ¶¶ 5, 31, a

19-year-old defendant was sentenced to a mandatory natural life term for murder, and the supreme

court determined that the appellate court erred in holding that his natural life sentence violated the

proportionate penalties clause as applied to him without a developed evidentiary record or factual

findings on the issue.

¶ 55   Thus, the Spencer court ultimately determined that “as-applied constitutional claims cannot

ultimately succeed absent a sufficiently developed evidentiary record” and that the defendant’s as-

applied challenge was better raised in a postconviction petition. Spencer, 2025 IL 130015, ¶ 45. In

support thereof, the court looked to Harris, 2018 IL 121932, ¶ 48, which concluded that an 18-

year-old defendant’s as-applied proportionate penalties challenge was “more appropriately raised”

in a postconviction proceeding rather than on direct appeal. The court also looked to People v.

Thompson, 2015 IL 118151, ¶ 44, where the court found that a 19-year-old defendant was not

necessarily foreclosed from raising an as-applied challenge in the trial court and observed that

defendant’s constitutional claims could be resolved in a postconviction petition. Therefore, the

supreme court ultimately concluded that the defendant in Spencer was “not foreclosed from

bringing his as-applied challenge to his 100-year sentence under the proportionate penalties clause

through a postconviction proceeding.” Spencer, 2025 IL 130015, ¶ 46.

¶ 56   Similar to Spencer, here, the record is insufficient for this court to consider defendant’s as-

applied constitutional claims. Although counsel raised an as-applied challenge in his motion to

reconsider sentence, and the trial court ultimately held a hearing on the motion, we cannot say that

the hearing rose to the level of an evidentiary hearing necessary to fully consider defendant’s


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claims on direct appeal. Similar to Harris, 2018 IL 121932, ¶ 41, and House, 2021 IL 125124,

¶ 31, the record must be sufficiently developed in the circuit court through an evidentiary hearing

and findings of fact to review the defendant’s constitutional claim. We therefore conclude that

defendant’s proportionate penalties claim is better raised in a postconviction petition.

¶ 57   Defendant also argues that his counsel was ineffective for failing to introduce evidence or

testimony from an expert that demonstrated defendant’s hallmarks of youth during the motion to

reconsider sentence hearing. The State responds, arguing that the record is insufficiently developed

to determine whether counsel was ineffective. Because we conclude that defendant’s proportionate

penalties claim as a whole is better raised in a postconviction proceeding, we need not consider

the merits of whether defense counsel was ineffective.

¶ 58                               C. One-Act, One-Crime

¶ 59   Defendant contends that two of his murder convictions must be vacated under the one-act,

one-crime rule because there was only one decedent. He contends that the mittimus reflects

convictions and sentences on all three counts. The State agrees and notes that this court should

order entry of an amended sentencing order. The record shows that the written sentencing order

reflects three concurrent 50-year sentences.

¶ 60   The one-act, one-crime rule prohibits convictions for multiple offenses based on the same

single physical act. People v. Miller, 238 Ill. 2d 161, 165 (2010); People v. King, 66 Ill. 2d 551,

566 (1977). Pursuant to the one-act, one-crime rule, a trial court should impose a sentence on the

more serious offense and vacate the less serious offense. People v. Smith, 233 Ill. 2d 1, 20 (2009);

People v. Artis, 232 Ill. 2d 156, 170 (2009). Whether a conviction violates the one-act, one-crime

rule is a question of law that we review de novo. People v. Robinson, 232 Ill. 2d 98, 105 (2008);

People v. Daniels, 187 Ill. 2d 301, 307 (1999). We agree that defendant’s three first degree murder


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convictions all arise from the same single act with one decedent. We therefore vacate defendant’s

convictions and sentences on counts I and II order the mittimus corrected accordingly.

¶ 61                                III. CONCLUSION

¶ 62   We vacate defendant’s convictions and sentences on counts I and II, and we order the

mittimus corrected accordingly. The judgment of the trial court of Wayne County is otherwise

affirmed.

¶ 63   Affirmed in part and vacated in part; mittimus corrected.




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                   People v. Murbarger, 2026 IL App (5th) 230430


Decision Under Review:    Appeal from the Circuit Court of Wayne County, No. 20-CF-
                          162; the Hon. Michael J. Molt, Judge, presiding.


Attorneys                 James E. Chadd, Douglas R. Hoff, and Arianne Stein, of State
for                       Appellate Defender’s Office, of Chicago, for appellant.
Appellant:


Attorneys                 Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
for                       Solicitor General, and Katherine M. Doersch and Eldad Z.
Appellee:                 Malamuth, Assistant Attorneys General, of counsel), for the
                          People.




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