People v. Buffer

2017 IL App (1st) 142931, 75 N.E.3d 470

• Court: Appellate Court of Illinois
• Decided: March 29, 2017
• Docket: 1-14-2931
• Status: Unpublished

Opinion

2017 IL App (1st) 142931

No. 1-14-2931

Opinion filed March 29, 2017

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Circuit Court Respondent-Appellee, ) of Cook County, Illinois, ) Criminal Division. v. ) ) No. 09 CR 10493 DIMITRI BUFFER, ) ) The Honorable Petitioner-Appellant. ) Thaddeus Wilson, ) Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justice Lavin concurred in the judgment and opinion. Justice Pucinski specially concurred, with opinion.

OPINION

¶1 The petitioner, Dimitri Buffer, appeals from the circuit court’s summary dismissal of his

pro se postconviction petition filed pursuant to the Post-Conviction Hearing Act (725 ILCS

5/122-1 et seq. (West 2004)). On appeal, the petitioner contends that his 50-year adult

sentence, imposed for a crime he committed when he was 16 years old, is unconstitutional as

applied under the eighth amendment to the United States Constitution (U.S. Const., amend.

VIII) and under Illinois’s proportionate penalties clause (Ill. Const. 1970, art. I, § 11). For the

reasons that follow, we vacate the petitioner’s sentence and remand for resentencing. No. 1-14-2931

¶2 I. BACKGROUND

¶3 For purposes of brevity we set forth only those facts and procedural history relevant to

the resolution of the issues in this appeal. In 2009, the 16-year-old petitioner was charged

with multiple counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)) in the

shooting of the victim, Jessica Bazan, including that he personally discharged the firearm that

caused her death. The petitioner was transferred to be tried as an adult under the mandatory

transfer provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-120 (West 2008)).

¶4 A. Trial

¶5 The following evidence was adduced at the petitioner’s jury trial. Serena Ortiz and her

10-year old son, Jai Cuevez, testified that on the evening of May 16, 2009, they were inside

their second-floor apartment at 8311 South Brandon Avenue. At about 10 p.m., Ortiz was

speaking on the telephone, while Cuevas was looking out the window and saw Bazan (who

was Ortiz’s uncle’s fiancée) pulling up in front of the building in her red Chevrolet Caprice.

Ortiz looked out the window, waved to Bazan, and told her “to hold on” while she finished

her conversation in another room. Cuevas continued to look out the window. When Ortiz

returned, both she and Cuevas saw a figure in a black hoodie approach Bazan’s car, fire two

shots inside, and run towards a white “cop” or “bubble” (Ford Crown Victoria) car, which

they identified from a photo at trial. Neither Ortiz nor Cuevas could see the offender’s face

because it was too dark.

¶6 The forensic pathologist who performed the autopsy on Bazan testified that Bazan was

shot twice in her right thigh and died as a result of those wounds.

¶7 Sammy Trice, age 23, and a former member of the Black P Stones gang, next testified

that at about 9:30 p.m., on May 16, 2009, he and Steven Ward drove Ward’s white Ford

Crown Victoria, previously identified by Ortiz and Cuevas as the vehicle used by the

offender to flee the scene of the shooting, to pick up four minors: (1) Trice’s 15-year-old

cousin, Mark Matthews, who remains a member of the Black P Stones; (2) 14-year-old

Devon Brunt; (3) 16-year-old Devaunte Johnson; and (4) the 16-year-old petitioner.

¶8 Trice averred that he drove the car to an alley on 83rd Street between Coles Avenue and

South Shore Drive because he wanted to purchase marijuana. Trice explained that the Black

P Stones had a “stash house” where they kept their drugs and “nation guns,” which were

available for use to all members. Once there, Trice and the petitioner exited the car, and the

petitioner went to the “stash house.” Upon his return, Trice proceeded to drive down Brandon

Avenue and stopped at a stop sign to “roll a blunt,” when he heard the petitioner say “There

go them guys right there.” According to Trice, the petitioner then exited the vehicle, walked

toward the passenger side of a parked red vehicle and fired shots inside. Trice claimed that he

tried to flee in Ward’s car, but the petitioner ran after him and jumped inside. Trice “hollered

and cursed” at the petitioner to get out, and as he pulled into an alley, the petitioner jumped

out and fled. Soon thereafter Trice was pulled over by the police, and all five men were

arrested and taken into custody. Once there, Trice identified the petitioner as the shooter from

a photo array. He again identified the petitioner as the shooter in open court.

¶9 On cross-examination, Trice acknowledged that when he was brought to the police

station, he thought that he was being arrested for Bazan’s murder. Trice admitted that he

initially lied to police about what he saw. He explained that the police told him that both he

and his cousin, Matthews, would be charged with murder, and he did not want that to happen.

Trice acknowledged that he did not identify the petitioner from a photo array until 9:12 a.m.

on the following morning, after speaking to his mother and to the detectives, who told him

that Matthews’s story was “falling apart.”

¶ 10 Matthews, age 15, testified consistently with Trice. In addition, he provided testimony

regarding the motive for the shooting. Specifically, Matthews testified that two days prior to

the shooting, he was near a store on 83rd Street and Cottage Grove Avenue when he was

approached by a group of rival Latin King gang members, who asked him if he was a Black

P Stone. Matthews stated that when he answered in the affirmative, they “jumped him,”

striking him several times and causing multiple abrasions on his face. Matthews’s aunt filed a

police report in regard to this incident.

¶ 11 Matthews averred that at about 9 p.m. on the day of the shooting, he was playing

basketball with Brunt, Johnson, and the petitioner when a red car pulled up and several

individuals inside, whom Matthews identified as members of the Latin Kings, “threw their

gang signs” at them. Soon thereafter, Trice appeared in a white car with Ward and drove

them all to a house where the Black P Stones kept their drugs and weapons. Contrary to

Trice’s testimony, Matthews averred that the petitioner alone exited the car, went to the stash

house, and returned several minutes later. Matthews testified that later when Trice stopped

the car at a stop sign on Brandon Avenue, the petitioner exited the car and fired gunshots

toward a red car that was parked on the street and that looked like the car belonging to the

Latin Kings who had flashed their gang insignia at them earlier that day.

¶ 12 On cross-examination, Matthews admitted that he initially lied to the police about who

had committed the crime and implicated James Jones (James), who is a member of a rival

gang, the Apache Stones. He eventually identified the petitioner as the shooter and picked

him out of a photo array. Matthews explained that he did not identify the petitioner as the

shooter until the detectives returned and told him that his cousin, Trice, and Ward had not

implicated James but had instead identified the petitioner as the shooter.

¶ 13 The owner of the white Ford Crown Victoria, Ward, next testified that he uses this

vehicle to “taxi” locals around the neighborhood because regular taxi cab companies do not

venture to that area of Chicago. He explained that on May 16, 2009, he loaned his car to

Trice and together they picked up and drove three of Trice’s friends, whom Ward did not

know. Ward testified consistently with Trice and Matthews about what transpired that

evening, including his witnessing of the shooting. Ward, however, did not identify the

petitioner as the shooter (either when he was arrested by the police or at trial).

¶ 14 Several police officers testified to their efforts in arresting the suspects after receiving a

flash message describing the getaway vehicle. The officers arrested all five individuals inside

the vehicle (Trice, Brunt, Johnson, Matthews, and Ward), and performed gunshot residue

tests on them. All of those tests were negative for gunshot residue.

¶ 15 Aisha Jones (Jones), age 17, and the petitioner’s brother’s girlfriend as well as the sister

of James Jones, next testified that the petitioner is “like a little brother to her.” She testified

that in 2009, both the petitioner and his brother were members of the Black P Stones gang.

¶ 16 Jones testified that at about 10 p.m. on the night of the shooting, she was with the

petitioner’s brother when he received a telephone call and eventually proceeded to the corner

of 81st Street and Coles Avenue, where they picked up the petitioner. Jones testified that the

petitioner, who was wearing a navy blue hoodie, entered the car and said, “I just shot a

[Latin] King in his face.” Jones testified that everyone in the car asked the petitioner “if he be

for real” because the petitioner often joked around and was a playful person. The petitioner

“swore to God” and “on Jeff [Fort, the head of the Black P Stones gang]” that he was telling

the truth.

¶ 17 Jones testified that on the following morning, she also heard the petitioner telling his

brother that “he shot a King in the face.” According to Jones, when the petitioner’s brother

mentioned a woman, the petitioner told him that he “shot a King” and “didn’t shoot no lady.”

¶ 18 On cross-examination, Jones explained that she was not concerned about what she had

heard from the petitioner because he “always play like this.” Jones also admitted that she did

not go to the police station to make a statement about what she had heard, until later that day

when she found out that her brother, James, had been arrested in connection with the

shooting.

¶ 19 Chicago police detective Michele Moore-Grose also testified that in investigating the

instant case, she interviewed the responding officers and several witnesses, including Ortiz

and Cuevas. The detective afterward interrogated all five suspects (Trice, Ward, Matthews,

Johnson, and Brunt) that were arrested in the white Ford Crown Victoria near the scene of

the shooting. She acknowledged that after speaking to Matthews, her investigation first

focused on James, whom she arrested on May 17, 2009. She explained, however, that after

further interrogation of the witnesses and after speaking to Aisha Jones, her investigation

changed course and focused on the petitioner.

¶ 20 The defense offered no evidence at trial. After hearing closing arguments, the jury found

the petitioner guilty of four counts of first degree murder. The jury also specially found that

the petitioner had personally discharged the firearm that proximately caused Bazan’s death.

¶ 21 B. Sentencing

¶ 22 At the sentencing hearing, the court first heard the victim impact statement written by the

victim’s mother. Subsequently, in aggravation, the State called several police officers to

testify to incidents in which the petitioner had been arrested when he was just 14 and 15

years old. Specifically, the officers testified to having previously arrested the petitioner for

(1) a burglary in progress, wherein the petitioner was found in the “back seat of a vehicle”

where the ignition was peeled and the vehicle was reported stolen; (2) attempted robbery,

where the 15-year-old petitioner tried to take money from an 18-year old victim’s pocket and

hit the victim; (3) resisting arrest, when the petitioner, together with several other members

of the Black P Stones gang, “interfered in the placing into custody of another narcotics

related arrestee”; (4) robbery, wherein the victim identified several individuals who had

battered him and taken his wallet, including the petitioner; and (5) “flashing gang signs.”

¶ 23 In contrast to the officers’ testimony, the petitioner’s presentencing investigation report

(PSI), which was introduced at the sentencing hearing, reflected only a single finding of

delinquency for theft.

¶ 24 In mitigation, defense counsel argued that the petitioner was remorseful, that he was 16

years old at the time of the shooting, that his parents have been present in court and in his

“entire life,” that he has no history of mental illness, and that he struggled with school but

had completed two years of high school with special assistance classes. In addition, defense

counsel explained that the defendant’s previous arrests can be explained by the fact that he

“exists in a world where there is violence” and “senseless deaths.” Counsel also emphasized

that the petitioner was not alone and that he was very susceptible to the influence of others.

In allocution, the petitioner apologized for what had happened to the victim’s family and

expressed that he was “really sorry.”

¶ 25 The State argued that the petitioner’s arrests as a minor showed “the making of a gang

member” and contended that the petitioner “had choices at the age of 14 and yet continued

again and again to commit crimes.” The State claimed that the petitioner “chose to be a Black

P Stone” and that he “chose to have that life.” The State further argued for an extended

sentence in order “to deter others from committing the same crime” and “to send a message”

to the community and to gang members. As the State explained, “these sentences are

necessary to deter others from that conduct.”

¶ 26 After hearing arguments by both parties, the circuit court sentenced the petitioner to 50

years’ imprisonment with 3 years of mandatory supervised release. In doing so, the court

stated that it had “considered all of the relevant statutory requirements, including, but not

limited to” (1) the evidence at trial, (2) the gravity of the offense, (3) the PSI, (4) the

financial impact of incarceration to a limited extent given the petitioner’s age, his not having

children or dependents, (5) evidence in aggravation and mitigation, (6) potential substance

abuse issues, (7) treatment, (8) potential for rehabilitation, (9) the possibility of alternative

sentencing, (10) the petitioner’s statement in allocution, (11) the victim impact statement,

and (12) “all hearsay considered at the hearing deemed relevant and reliable.”

¶ 27 C. Direct Appeal

¶ 28 The petitioner filed a direct appeal with this court on June 27, 2011, arguing that (1) the

trial court had improperly admitted Trice’s prior consistent statements from his grand jury

testimony to bolster his and Matthews’s testimony at trial and (2) the State committed error

in its rebuttal remarks when it improperly bolstered Jones’s testimony. See People v. Buffer,

2012 IL App (1st) 102411-U, ¶¶ 48, 70.

¶ 29 During the pendency of this appeal, on June 25, 2012, the United States Supreme Court

decided Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), holding that because

juvenile offenders are less culpable than adults who commit the same crime and are far more

capable of rehabilitation, a mandatory sentence of life without the possibility of parole

violates the eighth amendment.

¶ 30 On July 24, 2012, the petitioner filed a motion seeking leave to file a supplemental brief

addressing the impact of Miller on his 50-year sentence. The State objected, and we denied

leave on August 7, 2012. On August 9, 2012, the petitioner filed a motion to reconsider, and

the State responded, renewing its objection.

¶ 31 On August 16, 2012, we affirmed the petitioner’s conviction. See Buffer, 2012 IL App

(1st) 102411-U, ¶¶ 61, 74. In doing so, we agreed with the petitioner that Trice’s grand jury

testimony was inadmissible and constituted an abuse of the trial court’s discretion. In

addition, we stated that we were “inclined to agree” that the scope of the State’s rebuttal

“exceeded the bounds of proper comment” since it was “not based upon any facts or

reasonable inferences in the record.” Buffer, 2012 IL App (1st) 102411-U, ¶ 74. Nonetheless,

we found that in light of the overwhelming evidence of the petitioner’s guilt, these errors did

not rise to the level of plain error so as to permit our review. See Buffer, 2012 IL App (1st)

102411-U, ¶ 75.

¶ 32 On August 17, 2012, a day after we issued our Rule 23 order, we also denied as moot the

petitioner’s motion to reconsider our denial of his request to supplement his brief to address

his sentence in the context of Miller, 567 U.S. 460, 132 S. Ct. 2455.

¶ 33 The petitioner subsequently sought leave to appeal to our supreme court, but his petition

was denied. See People v. Buffer, No. 115148 (Ill. Jan. 30, 2013) (table).

¶ 34 D. Post-Conviction

¶ 35 On May 23, 2014, the petitioner filed a pro se postconviction petition, arguing that his

50-year sentence is a de facto life sentence that violates the eighth amendment of the United

States Constitution (U.S. Const., amend. VIII), and the proportionate penalties clause of the

Illinois Constitution (Ill. Const. 1970, art. I, § 11). The petitioner cited to Miller, 567 U.S.

460, 132 S. Ct. 2455, and several Illinois decisions relying on Miller, and emphasized the

diminished culpability of juveniles and their enhanced rehabilitative capacity. The petitioner

asked the court to vacate his sentence and remand for a new sentencing hearing “so that

petitioner is able to re-enter society as a productive and useful citizen.”

¶ 36 The circuit court summarily dismissed the petitioner’ pleading, finding his claims to be

“frivolous and patently without merit.” The petitioner now appeals the summary dismissal of

his petition.

¶ 37 II. ANALYSIS

¶ 38 At the outset we note that the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et

seq. (West 2012)) provides a three-step process by which a convicted defendant may assert a

substantial denial of his or her constitutional rights in the proceedings that led to the

conviction. People v. Edwards, 2012 IL 111711, ¶ 21; People v. Tate, 2012 IL 112214, ¶ 8;

see also People v. Walker, 2015 IL App (1st) 130530, ¶ 11 (citing People v. Harris, 224 Ill.

2d 115, 124 (2007)). A proceeding under the Act is a collateral attack on a prior conviction

and sentence and is therefore “not a substitute for, or an addendum to, direct appeal.” People

v. Kokoraleis, 159 Ill. 2d 325, 328 (1994); see Edwards, 2012 IL 111711, ¶ 21; People v.

Barrow, 195 Ill. 2d 506, 519 (2001). Accordingly, any issues that were decided on direct

appeal are res judicata, and any issues that could have been presented on direct appeal, but

were not, are waived. Edwards, 2012 IL 111711, ¶ 21; see also People v. Reyes, 369 Ill. App.

3d 1, 12 (2006).

¶ 39 At the first stage of a postconviction proceeding, such as here, the trial court must only

determine whether the petition sets forth a “gist” of a constitutional claim. People v. Boclair,

202 Ill. 2d 89, 99-100 (2002); see also 725 ILCS 5/122-2.1 (West 2012); People v. Ross,

2015 IL App (1st) 120089, ¶ 30 (citing People v. Jones, 213 Ill. 2d 498, 504 (2004)). At this

stage of postconviction proceedings, all well-pleaded allegations in the petition must be

construed as true, and the court may not engage in any factual determinations or credibility

findings. See People v. Plummer, 344 Ill. App. 3d 1016, 1020 (2003) (“The Illinois Supreme

Court *** [has] recognized that factual disputes raised by the pleadings cannot be resolved

by a motion to dismiss at either the first stage *** or at the second stage *** [of

postconviction proceedings], rather, [they] can only be resolved by an evidentiary hearing

***.”); see also People v. Coleman, 183 Ill. 2d 366, 380-81 (1998) (noting that the supreme

court has “foreclosed the circuit court from engaging in any fact-finding at a dismissal

hearing because all well-pleaded facts are to be taken as true at this point in the proceeding”).

¶ 40 The “gist” is a low threshold and the trial court may summarily dismiss the petition only

if it finds the petition to be frivolous or patently without merit. See Jones, 213 Ill. 2d at 504;

Ross, 2015 IL App (1st) 120089, ¶ 30; see also People v. Hodges, 234 Ill. 2d 1, 10 (2009). A

petition is frivolous or patently without merit only if it has no arguable basis either in law or

in fact. People v. Tate, 2012 IL 112214, ¶ 9. Our supreme court has explained that a petition

lacks an arguable basis where it “is based on an indisputably meritless legal theory or a

fanciful factual allegation”—in other words, an allegation that is “fantastic or delusional,” or

is “completely contradicted by the record.” (Internal quotation marks omitted.) Hodges, 234

Ill. 2d at 13, 16; People v. Brown, 236 Ill. 2d 175, 185 (2010); see also Ross, 2015 IL App

(1st) 120089, ¶ 31. Our review of summary dismissal is de novo. Tate, 2012 IL 112214, ¶ 10.

¶ 41 On appeal, the petitioner contends that the trial court erred when it summarily dismissed

his pro se petition because he made the gist of a meritorious claim that his 50-year sentence

violated his constitutional rights both under the eighth amendment of the United States

Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11).

¶ 42 The petitioner explains that the sentencing statutes under which he was sentenced

mandated that the trial court sentence him to a minimum of 45 years in prison—specifically,

a minimum of 20 years for first degree murder (see 730 ILCS 5/5-8-1(a)(1)(a) (West 2008)

(providing a range of 20 to 60 years)) plus a mandatory 25-year firearm enhancement (see

730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008) (requiring 25 years to be added to a murder

sentence if a firearm was used that proximately caused the death of the victim)).

Accordingly, even though the trial judge sentenced the petitioner at the bottom of the

applicable first degree murder range, his aggregate sentence totaled 50 years. In addition, the

petitioner points out that under the “truth in sentencing” statute, he is required to serve this

sentence in its entirety. See 730 ILCS 5/3-6-3(a)(2)(i) (West 2008) (“a prisoner who is

serving a term of imprisonment for first degree murder *** shall receive no [sentence] credit

and shall serve the entire sentence imposed by the court”). The petitioner argues that this

lengthy term is equivalent to a mandatory life sentence. Accordingly, he contends that

because the interaction of the aforementioned statues prevented the trial court from

exercising any discretion or taking into consideration his youth and rehabilitative potential

the overall effect of the statutory scheme as applied to him violated both the eighth

amendment of the federal constitution (U.S. Const., amend. VIII) and the proportionate

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

¶ 43 A strong presumption exists that statutes are constitutional and courts will uphold a

statute whenever reasonably possible, resolving all doubts in favor of the statute’s validity.

People v. Patterson, 2014 IL 115102, ¶ 90. In addition, the challenging party has the burden

of rebutting this presumption. People v. Willis, 2013 IL App (1st) 110233, ¶ 43. We review a

statute’s constitutionality de novo. Patterson, 2014 IL 115102, ¶ 90.

¶ 44 A. Eighth Amendment—As Applied to the Petitioner

¶ 45 We first turn to the petitioner’s assertion that his 50-year sentence is effectively a

mandatory life sentence that is prohibited under the federal constitution. The eighth

amendment to the United States Constitution, which is applicable to the States through the

fourteenth amendment provides: “Excessive bail shall not be required nor excessive fines

imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. This

amendment guarantees individuals the right not to be subjected to excessive sanctions and

reaffirms the government’s duty to respect the dignity of all persons. Roper v. Simmons, 543

U.S. 551, 560 (2005). The amendment flows from the basic precept that the punishment for

crimes should be graduated and proportioned to the offense. Roper, 543 U.S. at 560. The

Supreme Court has repeatedly held that the prohibition against cruel and unusual punishment

must be interpreted through “the evolving standards of decency that mark the progress of a

maturing society.” (Internal quotation marks omitted.) Roper, 543 U.S. at 561.

¶ 46 The United States Supreme court has repeatedly recognized the special characteristics of

juvenile offenders, including: (1) that they lack maturity and have an underdeveloped sense

of responsibility which leads to poor decision making (Roper, 543 U.S. at 569); (2) that they

are more susceptible to negative influences and peer pressure and therefore lack the ability to

extricate themselves from “horrific, crime-producing settings” (Miller, 567 U.S. at ___, 132

S. Ct. at 2464); Graham v. Florida, 560 U.S. 48, 68 (2010)); and (3) that they are more

capable of change than adults, and less likely to be of “irretrievably depraved character”

(Graham, 560 U.S. at 68).

¶ 47 In recognition of these characteristics, in the last 15 years, the Supreme Court has decided

four landmark opinions applying the eighth amendment to juveniles. In Roper, the Supreme

Court held that the eighth amendment prohibits the imposition of the death penalty where an

offender is under 18 years old when he committed the offense. Roper, 543 U.S. at 578. Five

years, later, in Graham, the Supreme court held that the eighth amendment prohibited the

imposition of life without parole on a juvenile offender who did not commit homicide.

Graham, 560 U.S. at 74.

¶ 48 During the pendency of the petitioner’s direct appeal, in Miller, the Supreme Court held

that the eighth amendment “forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders.” Miller, 567 U.S. at ___, 132 S. Ct. at 2469.

Citing its earlier decisions in Roper and Graham, the Court explained that “children are

constitutionally different from adults for purposes of sentencing” (Miller, 567 U.S. at ___,

132 S. Ct. at 2464) and that “in imposing a State’s harshest penalties, a sentencer misses too

much if he treats every child as an adult” (Miller, 567 U.S. at ___, 132 S. Ct. at 2468). The

Supreme Court emphasized that a mandatory sentencing scheme for juveniles prevents the

trial court from considering numerous mitigating factors, such as the juvenile offender’s age

and attendant characteristics; the juvenile’s family and home environment and the

circumstances of the offense, including the extent of the juvenile’s participation and the

effect of any familial or peer pressure; the juvenile’s possible inability to interact with police

officers or prosecutors or incapacity to assist his or her own attorneys; and “the possibility of

rehabilitation even when the circumstances most suggest it.” Miller, 567 U.S. at ___, 132 S.

Ct. at 2468. The Court concluded:

“[A] judge or jury must have the opportunity to consider mitigating circumstances

before imposing the harshest possible penalty for juveniles. By requiring that all

children convicted of homicide receive lifetime incarceration without possibility of

parole, regardless of their age and age-related characteristics and the nature of their

crimes, the mandatory sentencing schemes before us violate this principle of

proportionality, and so the Eighth Amendment’s ban on cruel and unusual

punishment.” Miller, 567 U.S. at ___, 132 S. Ct. at 2475.

¶ 49 The Court further clarified that its holding was not a categorical prohibition of life­

without-parole sentences for juvenile murderers. Miller, 567 U.S. at ___, 132 S. Ct. at 2469.

Rather, the Court’s holding required that life-without-parole sentences be based on judicial

discretion rather than statutory mandates. Miller, 567 U.S. at ___, 132 S. Ct. at 2469.

¶ 50 Most recently, in Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 732-34

(2016) the United States Supreme Court elaborated on its ruling in Miller, holding that Miller

was retroactive on state collateral review, because it announced a new substantive

constitutional rule. Montgomery, 577 U.S. at ___, 136 S. Ct. at 732-34. In doing so, the

Supreme Court explained that the “central substantive guarantee” of the amendment is

protection against disproportionate punishment and that Miller was based on a “line of

precedent holding certain punishments disproportionate when applied to juveniles.”

Montgomery, 577 U.S. at ___, 136 S. Ct. at 732. The Supreme Court further found that this

eighth amendment protection “goes far beyond the manner of determining a defendant’s

sentence.” Montgomery, 577 U.S. at ___, 136 S. Ct. at 732-33.

¶ 51 The Court in Montgomery analyzed the principal premise of Miller that children are

constitutionally different from adults for purposes of sentencing because of their diminished

culpability and better prospect of reform. Montgomery, 577 U.S. at ___, 136 S. Ct. at 732-33.

The Court noted that Miller did more than require a sentencer to consider a juvenile

offender’s youth before imposing life without parole; instead it established that “the

penological justifications for life without parole collapse in light of ‘the distinctive attributes

of youth.’ [Citation.]” Montgomery, 577 U.S. at ___, 136 S. Ct. at 734. As the Court in

Montgomery explained:

“Because Miller determined that sentencing a child to life without parole is excessive

for all but ‘ “the rare juvenile offender whose crime reflects irreparable corruption,” ’

[citation], it rendered life without parole an unconstitutional penalty for ‘a class of

defendants because of their status’—that is, juvenile offenders whose crimes reflect

the transient immaturity of youth. [Citation.] As a result, Miller announced a

substantive rule of constitutional law. Like other substantive rules, Miller is

retroactive because it ‘ “necessarily carr[ies] a significant risk that a defendant” ’—

here, the vast majority of juvenile offenders—‘ “faces a punishment that the law

cannot impose upon him.” ’ [Citation.]” Montgomery, 577 U.S. at ___, 136 S. Ct. at

734.

¶ 52 On appeal, the State initially contends that the petitioner failed to set forth a gist of a

meritorious claim of an eighth amendment violation because Miller applied only to

mandatory life sentences without the possibility of parole, and not to discretionary sentences,

such as the one here, where the trial court had the ability to consider the petitioner’s

mitigating evidence and criminal history before imposing the minimum sentence. We

acknowledge that when the parties filed this appeal, our appellate courts had split on this

issue, with some holding that under Montgomery, Miller’s prohibition against mandatory life

sentences without parole for juveniles applied equally to discretionary life sentences without

parole (see, e.g., People v. Nieto, 2016 IL App (1st) 121604, ¶¶ 46-49; People v. Ortiz, 2016

IL App (1st) 133294, ¶¶ 16-25; People v. Gipson, 2015 IL App (1st) 122451), while others

maintaining that Miller was reserved for mandatory sentences alone (see, e.g., People v.

Wilson, 2016 IL App (1st) 141500, ¶ 30; People v. Cavazos, 2015 IL App (2d) 120444,

¶¶ 87-88; People v. Banks, 2015 IL App (1st) 130985, ¶¶ 20-24).

¶ 53 After the parties filed their briefs in this case, however, our supreme court decided People

v. Reyes, 2016 IL 119271, which directly impacts our decision in this case. In Reyes, our

supreme court explicitly held that a de facto life sentence for a juvenile violates the eighth

amendment of the United States Constitution. In that case, a juvenile defendant was

convicted of first degree murder and two counts of attempted murder and sentenced to a

mandatory minimum term of 97 years’ imprisonment. Reyes, 2016 IL 119271, ¶ 2. On

appeal, the defendant argued that as per the rationale in Miller, his sentence violated the

eighth amendment prohibition against mandatory life sentences for juvenile murder

defendants. Reyes, 2016 IL 119271, ¶ 2. The appellate court rejected the defendant’s

argument and refused to extend Miller beyond actual life sentences to de facto life terms.

Reyes, 2016 IL 119271, ¶ 6.

¶ 54 Our supreme court disagreed and reversed the appellate court’s decision, holding that a

“mandatory term of years that is the functional equivalent of life without the possibility of

parole constitutes cruel and unusual punishment in violation of the eighth amendment.”

Reyes, 2016 IL 119271, ¶ 9. As our supreme court explained:

“A mandatory term-of-years sentence that cannot be served in one lifetime has the

same practical effect on a juvenile defendant’s life as would an actual mandatory

sentence of life without parole—in either situation the juvenile will die in prison.

Miller makes clear that a juvenile may not be sentenced to a mandatory, unsurvivable

prison term without first considering in mitigation his youth, immaturity, and

potential for rehabilitation.” Reyes, 2016 IL 119271, ¶ 9.

¶ 55 In addition our supreme court held:

“ ‘[T]he teachings of the Roper/Graham/Miller trilogy require sentencing courts to

provide an individualized sentencing hearing to weigh the factors for determining a

juvenile’s “diminished culpability and greater prospects for reform” when, as here,

the aggregate sentences result in the functional equivalent of life without parole. To

do otherwise would be to ignore the reality that lengthy aggregate sentences have the

effect of mandating that a juvenile “die in prison even if a judge or jury would have

thought that his youth and its attendant characteristics, along with the nature of his

crime, made a lesser sentence (for example, life with the possibility of parole) more

appropriate.” [Citation.] Such a lengthy sentence “ ‘means denial of hope; it means

that good behavior and character improvement are immaterial; it means that whatever

the future might hold in store for the mind and spirit of [the juvenile convict], he will

remain in prison for the rest of his days.’ ” [Citations.] That is exactly the result that

Miller held was unconstitutional.’ [Citation.]” (Emphasis omitted.) Reyes, 2016 IL

119271, ¶ 9 (quoting Bear Cloud v. State, 2014 WY 113, ¶ 33, 334 P.3d 132 (Wyo.

2014)).

¶ 56 Accordingly, under the holding in Reyes, if we were to find that the petitioner’s 50-year

sentence constitutes a de facto life sentence, we would be compelled to conclude that such a

sentence, without consideration of the factors unique to juveniles, is unconstitutional as

applied to him under the eighth amendment.

¶ 57 While our supreme court in Reyes extended Miller to de facto life sentences because they

“cannot be served in one lifetime” it left open the question of what age constitutes a

“lifetime” and who gets to make that determination. Various panels of our appellate court

appear to be split on this issue and further disagree as to whether it is even appropriate for a

court of review to reflect on questions of biology and statistics. See People v. Harris, 2016

IL App (1st) 141744, ¶ 52; see also People v. Jackson, 2016 IL App (1st) 143025, ¶ 57

(recognizing that appellate courts “need a consistent and uniform policy on what constitutes a

de facto life sentence”). As the court in Jackson, 2016 IL App (1st) 143025, ¶ 57, aptly

pointed out:

“Is it simply a certain age upon release? If so, is it age 65 *** or 90? Should the age

vary by ethnicity, race or gender? If we are going to consider more than age, what

societal factors or health concerns should impact our assessment of a de facto life

sentence. These are policy considerations that are better handled in a different

forum.”

¶ 58 While we recognize the dilemma in grappling with such complex questions, contrary to

the State’s position, we do not see how justice is better served by avoiding them. In Gipson,

the appellate court did wrestle with these issues, noting that in “determining whether a

particular term of years is a natural life sentence in disguise,” the court was required to

“consider whether the defendant may be released from prison in his lifetime.” Gipson, 2015

IL App (1st) 122451, ¶ 66. In doing so, the court in Gipson considered, inter alia, the

potential credit available to the defendant, the defendant’s projected parole date as indicated

on the Illinois Department of Corrections (IDOC) website, and the defendant’s own alleged

life expectancy. Gipson, 2015 IL App (1st) 122451, ¶ 66.

¶ 59 Subsequently, in dealing with the same issue in People v. Sanders, 2016 IL App (1st)

121732-B, ¶ 26, the appellate court relied on the United States Sentencing Commission

Preliminary Quarterly Data Report, indicating that “a person held in a general prison

population has a life expectancy of about 64 years” and that this estimate “probably

overstates the average life expectancy for minors committed to prison for lengthy terms.”

Sanders, 2016 IL App (1st) 121732-B, ¶ 26. As the court in Sanders explained:

“ ‘A person suffers a two-year decline in life expectancy for every year locked

away in prison. Evelyn J. Patterson, The Dose-Response of Time Served in Prison on

Mortality: New York State, 1989-2003, 103 Am. J. of Pub. Health 523, 526 (2013).

The high levels of violence and communicable diseases, poor diets, and shoddy health

care all contribute to a significant reduction in life expectancy behind bars. See

United States v. Taveras, 436 F. Supp. 2d 493, 500 (E.D.N.Y. 2006) (finding

“persistent problems in United States penitentiaries of prisoner rape, gang violence,

the use of excessive force by officers, [and] contagious diseases” that lead to a lower

life expectancy in prisons in the United States), aff’d in part, vacated in part sub nom.

United States v. Pepin, 514 F.3d 193 (2d Cir. 2008); John J. Gibbons & Nicholas de

B. Katzenbach, Confronting Confinement 11 (2006). Entering prison at a young age is

particularly dangerous. Youth incarcerated in adult prisons are five times more likely

to be victims of sexual or physical assault than are adults. [Citation]; Deborah

LaBelle, Michigan Life Expectancy Data for Youth Serving Natural Life Sentences,

http://fairsentencingofyouth.org/wp-content/uploads/2010/02/Michigan-Life­

Expectancy-Data-Youth-Serving-Life.pdf (last visited Dec. 12, 2013).’[Citation.] ”

Sanders, 2016 IL App (1st) 121732-B, ¶ 26 (quoting Nick Straley, Miller’s Promise:

Re-Evaluating Extreme Criminal Sentences for Children, 89 Wash. L. Rev. 963, 986

n.142 (2014)).

¶ 60 Most recently, the appellate court in Harris, 2016 IL App (1st) 141744, ¶¶ 53-54, agreed

with Sanders, noting that the lower life expectancy of minors committed to prison for lengthy

terms was “not surprising given the harshness of a lifetime spent in a state penitentiary.”

¶ 61 With these principles in mind, we further note that while our supreme court has not yet

attempted to delineate what constitutes a lifetime, 1 in finding de facto life sentences

unconstitutional, it relied heavily on the reasoning of the Wyoming Supreme Court in Bear

Cloud v. State, 2014 WY 113, ¶ 33, 334 P.3d 132 (Wyo. 2014). That decision explicitly

found that an aggregate 45-year sentence imposed on a 16-year-old triggered the eighth

1 We note that in Reyes, the court did not have to grapple with the concerns facing us here,

because the State conceded that the sentence imposed (97 years, of which the defendant had to serve

at least 89) was a lifetime sentence. See Reyes, 2016 IL 119271, ¶ 10.

amendment’s prohibition against mandatory life sentences. See Bear Cloud, 2014 WY 113,

¶¶ 31-37, 334 P.3d 132.

¶ 62 Under these circumstances, we conclude that the petitioner’s 50-year sentence is a

de facto life sentence. The petitioner was born on March 17, 1993. He was placed into

custody on May 12, 2009. According to the IDOC website, of which we may take judicial

notice (see People v. Sanchez, 404 Ill. App. 3d 15, 17 (2010) (finding that this court can take

judicial notice of the IDOC website)), the petitioner’s projected parole date is May 12, 2059,

at which point he will be 66 years old. The petitioner’s projected discharge date is May 12,

2062, at which point he will be 69. Accordingly, as a practical matter, the petitioner, whose

average life expectancy is at best 64 years, will not have a meaningful opportunity for

release. See Reyes, 2016 IL 119271, ¶¶ 9-10 (“a mandatory term-of-years sentence that

cannot be served in one lifetime has the same practical effect on a juvenile defendant’s life as

would an actual mandatory sentence of life without parole”); see also State v. Null, 836

N.W.2d 41, 71 (Iowa 2013) (“[W]hile a minimum of 52.5 years imprisonment is not

technically a life-without-parole sentence, such a lengthy sentence imposed on a juvenile is

sufficient to trigger Miller-type protections. Even if lesser sentences than life without parole

might be less problematic, we do not regard the juvenile’s potential future release in his or

her late sixties after a half century of incarceration sufficient to escape the rationales of

Graham or Miller. The prospect of geriatric release, if one is to be afforded the opportunity

for release at all, does not provide a ‘meaningful opportunity’ to demonstrate the ‘maturity

and rehabilitation’ required to obtain release and reenter society as required by Graham, 560

U.S. at ___, 130 S. Ct. at 2030 ***.”); see also Bear Cloud, 2014 WY 113, ¶ 33, 334 P.3d

132 (holding that aggregate 45-year sentence was unconstitutional under Miller because

“[s]uch a lengthy sentence means denial of hope; it means that good behavior and character

improvement are immaterial; it means that whatever the future might hold in store for the

mind and spirit of [the juvenile convict], he will remain in prison for the rest of his days”

(internal quotation marks omitted)).

¶ 63 In coming to this decision, we reject the State’s contention that the trial court already had

the opportunity to consider all the mitigating evidence in favor of the petitioner, including his

youth, and nonetheless sentenced him to a term of 50 years’ imprisonment. The record before

us reveals that although the trial court exercised discretion in imposing the petitioner’s

sentence, nothing in the record supports the State’s position that the court’s reasoning

comported with the juvenile sentencing factors recited in Roper, Graham, Miller, and

Montgomery. Those decisions unequivocally require that before sentencing a juvenile to life

without parole, the judge take into account “ ‘how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison.’ ”

Montgomery, 577 U.S. at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at ___, 132 S. Ct.

at 2469). Specifically, those cases require that the sentencing court take into account (1) a

child’s diminished culpability and heightened capacity for change; (2) the fact that children

are immature, irresponsible, reckless, impulsive, and vulnerable to negative influences; and

(3) that they lack control over their environment and the ability to extricate themselves from

crime-producing circumstances. See Montgomery, 577 U.S. at ___, 136 S. Ct. at 733; Miller,

567 U.S. at ___, 132 S. Ct. at 2464.

¶ 64 We therefore conclude that under our supreme court’s decision in Reyes, the petitioner’s

sentence was an unconstitutional mandatory de facto life sentence. In light of this

determination we need not decide whether his sentence was also unconstitutional under the

Illinois proportionate penalties clause. Ill. Const. 1970, art. I, § 11.

¶ 65 The parties next disagree as to the proper remedy. The State urges us to decline the

petitioner’s request to remand for a new sentencing hearing and instead only remand to

circuit court for the second stage of postconviction proceedings.

¶ 66 While we recognize the relief following a first-stage dismissal under the Act ordinarily

involves remand for second stage proceedings, we believe that both judicial economy and the

particular issue raised in this appeal (namely the unconstitutionality of the petitioner’s

sentence under Reyes) require us to vacate the petitioner’s sentence and remand for

resentencing. See Nieto, 2016 IL App (1st) 121604, ¶ 57 (remanding for a new sentencing

hearing on appeal from the dismissal of a postconviction petition raising the

unconstitutionality of the juvenile defendant’s sentence); see also People v. Davis, 2014 IL

115595, ¶¶ 1, 43 (remanding for a new sentencing hearing on appeal from the denial of leave

to file a successive petition).

¶ 67 Although disputed in the briefs, at oral argument, the State conceded that if we choose to

remand the cause for a new sentencing hearing, pursuant to Reyes, the petitioner is entitled to

elect to be resentenced under section 5-4.5-105 of the Unified Code of Corrections (Code)

(Pub. Act 99-69 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105)). This recently enacted

statute requires that in determining the appropriate sentence for those offenders who

committed the offense when they were under 18, the sentencing judge take into account,

along with the factors in aggravation, numerous factors in mitigation particular to youth (and

first articulated under Roper, Miller, and Graham), such as, inter alia, age, impetuosity, level

of maturity, ability to consider risks and consequences of behavior, whether the juvenile was

subjected to outside pressure or negative influences, and the potential for rehabilitation. 730

ILCS 5/5-4.5-105 (West Supp. 2015). In addition, the statute gives the trial judge discretion

to decide whether or not to impose the previously mandatory firearm enhancements. See Id.

¶ 68 In Reyes, after vacating the defendant’s de facto life sentence as unconstitutional under

the eighth amendment, our supreme court held, albeit with agreement of the parties, that

pursuant to section 4 of the Statute of Statutes (5 ILCS 70/4 (West 2014)), the defendant was

entitled on remand to be resentenced under the new sentencing scheme found in section 5­

4.5-105 of the Code (730 ILCS 5/5-4.5-105 (West Supp. 2015)), even though that sentencing

statute had not become law until the parties had already filed their briefs in the case. See

Reyes, 2016 IL 119271, ¶ 12 (“section 4 of the Statute of Statutes entitles a defendant ‘to be

sentenced under either the law in effect at the time of the offense was committed or that

[was] in effect at the time of sentencing’ ” (quoting People v. Hollins, 51 Ill. 2d 68, 71

(1972))). In doing so, the court in Reyes found relevant that on remand the trial court would

have the discretion not to apply the firearm enhancement to the defendant’s sentence, thereby

resulting in the mandatory minimum aggregate being reduced to a term that would not

constitute a de facto life sentence (namely 32 years). Accordingly, our supreme court held

that “[b]ecause defendant would not be subject to a mandatory, life-without parole sentence

under section 5-4.5-105,” the cause should be remanded to the trial court with direction that

the new sentencing hearing be held in accordance with that statute.

¶ 69 In the present case, once we vacate the petitioner’s sentence, on remand, the new

sentencing hearing will take place after the effective date of the current sentencing statute,

avoiding any retroactivity concerns. Section 4 of the Statute of Statutes explicitly states that

“[i]f any penalty, forfeiture or punishment be mitigated by any provision of a new law, such

provisions may, by the consent of the party affected, be applied to any judgment pronounced

after the new law takes effect.” 5 ILCS 70/4 (West 2014). The new sentencing procedure

(including the consideration of youth-specific factors and the trial court’s ability to forgo any

firearm enhancement) certainly mitigates the prior sentencing scheme, and the petitioner

undeniably consents to the trial court using this new procedure, once we pronounce the

judgment in this case. Accordingly, under these circumstances and pursuant to the rationale

in Reyes, we find that on remand the petitioner should be resentenced in accordance with

section 5-4.5-105 of the Code (730 ILCS 5/5-4.5-105 (West Supp. 2015)). See Reyes, 2016

IL 119271, ¶ 12; Hollins, 51 Ill. 2d at 71 (holding that section 4 of the Statute on Statutes

entitles a defendant “to be sentenced under either the law in effect at the time the offense was

committed or that [is] in effect at the time of sentencing”).

¶ 70 To be clear, in doing so, we neither condone the petitioner's actions, nor make any

representation as to what sentence the trial court, in its discretion should impose. As the Sate

observed at oral argument, the petitioner in this instance repeatedly bragged to his fellow gang

members about committing the crime, which resulted in the death of an innocent woman. A trial

court following Miller, however, could find that this fact was either consistent with the

petitioner's youth or consistent with the deliberate nature of the crime. Nonetheless, under the

eight amendment the process itself matters. 2

2 We note that despite the "feel-good" decision in Reyes and the new legislation regarding juveniles in the

criminal justice system, it is our view that the legislature has not taken sufficient steps to achieve any real

rehabilitation of those juveniles tried in adult criminal court. A juvenile (with or without gang affiliation)

placed in an adult prison system will quite likely be forced to join a gang inside that prison system in

order to survive. If, instead of cutting all the programs that could aid in rehabilitation, the legislature

¶ 71 III. CONCLUSION

¶ 72 For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is

remanded for resentencing in accordance with section 5-4.5-105 of the Code (730 ILCS 5/5­

4.5-105 (West Supp. 2015)).

¶ 73 Reversed and remanded.

¶ 74 JUSTICE PUCINSKI, specially concurring.

¶ 75 While I agree with the majority on the result of this case, I would address Buffer’s

argument that the truth-in-sentencing statute (commonly referred to as the Truth in

Sentencing Act (730 ILCS 5/3-6-3(a)(2)(i)) (West 2006))) by its nature eliminates the

opportunity to achieve parole and that for that reason alone the Truth in Sentencing Act as it

applies to juvenile offenders is unconstitutional. I have been concerned for some time that

not enough attention is given to this matter. See People v. Taylor, 2015 IL App (1st) 121577­

U, ¶ 81 (Mason, P.J., and Lavin, J., specially concurring “in the judgment only” to order

authored by Pucinski, J.).

¶ 76 On appeal, juvenile offenders generally rely on two statutes, automatic transfer and

mandatory sentences, when challenging an adult sentence as a de facto life sentence.

were to require that all juveniles serving adult sentences in adult prison were separated from adult inmates

(and placed into mandatory education and/or work-training programs) and were further to impose a

mandatory judicial review of a juvenile's sentence for future consideration of parole, after half of that

sentence has been served, we believe that this would incentivize good behavior and better serve the

purposes of rehabilitation and reinstatement into society. See Ron Berler, Illinois Parolees: Often

Undereducated, Unemployed—And Soon Back Behind Bars, Chi. Trib., March 20, 2017, at 15.

¶ 77 But the U.S. Supreme Court has been very clear that a sentence of life without the

possibility of parole is what has really driven the Miller, Roper, and Graham trilogy.

¶ 78 Since I wrote Taylor, my opinion about the Truth in Sentencing Act related to juveniles

has not changed, and I am not the least concerned about repeating myself.

¶ 79 As I stated, “taken as it is written, the Truth in Sentencing Act is a stand-alone act that

should be considered separately for its constitutionality as applied to juvenile offenders such

as defendant here.” Taylor, 2015 IL App (1st) 121577-U, ¶ 45.

¶ 80 When a juvenile offender is tried as an adult and convicted and sentenced as an adult for

murder in the first degree, the Truth in Sentencing Act requires the juvenile offender to serve

100% of this sentence. Id. ¶ 46.

“This is not part of the sentencing scheme; it is part of the state’s criminal

procedure as a mandate to and for the authority of the Department of Corrections.

It is not a sentencing statute because it does not rely on any judge, or any court, to

impose or administer it. ‘Sentence’ is the disposition imposed by the court on a

convicted defendant. 730 ILCS 5/5-1-19 (West 2006).

It is a corrections statute because only the Department of Corrections can

administer it: ‘The Department of Corrections shall prescribe rules and regulations for

awarding and revoking sentence credit for persons committed to the Department ***

a prisoner who is serving a term of imprisonment for first degree murder *** shall

receive no sentence credit and shall serve the entire sentence imposed by the court.’

730 ILCS 5/3-6-3(a)(2)(i) (West 2006).

We recognize that in the Rubik’s cube of decision-making, a sentencing judge

will, and indeed must, consider all the moving parts: the crime, the class of crime, the

aggravating and mitigating factors, the legally possible sentencing range, any

enhancements, any exceptions, mandatory sentencing, and what impact the Truth in

Sentencing Act will have. But, that is not to say that the Truth in Sentencing Act only

exists as an extension of the other sentencing factors. It has a life of its own; if it were

repealed tomorrow, the rest of the sentencing statutes would still exist. It is that

separate life of the Truth in Sentencing Act that is troubling where it intersects the

sentencing of juvenile offenders.

One of the required filters in sentencing juveniles is, and must be, their potential

for rehabilitation. It is a different prism than the potential of adult defendants for

rehabilitation. The United States Supreme Court and the Illinois Supreme Court have

acknowledged what every parent and every civilized society knows: children are

different from adults. They have a larger and potentially unlimited ability to change

as they mature, and those changes can be for the better, or unfortunately, for the

worse, depending in large part on their own history when dropped into the

surroundings and experiences of prison.

Indeed, the Unified Code of Corrections defines, as one of the powers and duties

of the Department of Corrections, the responsibility ‘to accept persons committed to

it by the courts of this State for care, custody, treatment and rehabilitation…’

(Emphasis added.) 730 ILCS 5/3-2-2(1)(a) (West [Supp. 2015]).

*** [R]ehabilitation is firmly rooted in our legal history. This duty and the

responsibility for rehabilitation first appeared in 1973 (Ill. Rev. Stat. 1973, [ch. 38,

§ 1003-2-2]). Before that, beginning in 1869, the Commissioners of the Penitentiary

were directed to provide ‘diminution of sentence if no infractions of the discipline’

occurred with reductions in sentence for good conduct. The prisoner would then get a

certificate of ‘restoration’ [(1869 Ill. Laws 81 (§ 2))]. By 1880, the Commissioners

were required to develop rules that ‘shall best conduce to the reformation of convicts’

(Ill. Rev. Stat. 1880, [ch. 108, § 10]) and to provide for ‘good time’ for convicts who

followed the rules (Ill. Rev. Stat. 1880, [ch. 108, § 45]).

‘When defining crimes and their penalties, the legislature must “consider the

constitutional goals of restoring an offender to useful citizenship and of providing a

penalty according to the seriousness of the offense.” ’People v. Leon Miller, 202 Ill.

2d 328, 338 (2002) (quoting People v. Taylor, 102 Ill. 2d 201, 206 (1984)).

In People v. Roper, 543 U.S. 551 (2005)[,] the U.S. Supreme Court in deciding

that the death penalty for juvenile offenders is unconstitutional stated: ‘The reality

that juveniles still struggle to define their identity means it is less supportable to

conclude that even a heinous crime committed by a juvenile is evidence of

irretrievably depraved character. From a moral standpoint it would be misguided to

equate the failings of a minor with those of an adult, for a greater possibility exists

that a minor’s character deficiencies will be reformed. “Indeed, the relevance of youth

as a mitigating factor derives from the fact that the signature qualities of youth are

transient; as individuals mature, the impetuousness and recklessness that may

dominate in younger years can subside.” ’ Roper[,543 U.S. at 570 (quoting Johnson v.

Texas, 509 U.S. 350, 368 (1993))].

Roper continues: ‘It is difficult even for expert psychologists to differentiate

between the juvenile offender whose crime reflects unfortunate yet transient

immaturity and the rare juvenile offender whose crime reflects irreparable corruption.

As we understand it, this difficulty underlies the rule forbidding psychiatrists from

diagnosing any patient under 18 as having antisocial personality disorder, a disorder

also referred to as psychopathy or sociopathy, and which is characterized by

callousness, cynicism and contempt for the feelings, rights and suffering of others. If

trained psychiatrists with the advantage of clinical testing and observation refrain,

despite diagnostic expertise, from assessing any juvenile under 18 as having

antisocial personality disorder, we conclude that States should refrain from asking

jurors to issue a far graver condemnation—that a juvenile offender merits the death

penalty. When a juvenile offender commits a heinous crime, the State can exact

forfeiture of some of the most basic liberties, but the State cannot extinguish his life

and his potential to attain a mature understanding of his own humanity. (Internal

quotations omitted.)’ Roper[, 543 U.S. at 573-74].

While Roper was a death penalty case, and this case is not, the underlying

reasoning—that most juveniles are capable of rehabilitation, that it is impossible at

sentencing to predict which ones can be rehabilitated and to what degree, and that the

state must provide a meaningful opportunity for juvenile defendants to demonstrate

their rehabilitation at some point along the line—points in the direction of finding that

the Truth in Sentencing Act, as it applies to juveniles denies them the fundamental

right to demonstrate rehabilitation.

The U.S. Supreme Court expanded its analysis of juvenile offenders in Graham v.

Florida, 560 US 48 (2010), a life without parole case involving a non-homicide

crime. ‘Life without parole is an especially harsh punishment for a juvenile. Under

this sentence a juvenile offender will on average serve more years and a greater

percentage of his life in prison [than] an adult offender. A 16-year-old and a 75-year­

old each sentenced to life without parole receive the same punishment in name only.

[Citation.] This reality cannot be ignored.’ Graham[, 560 U.S. at 70]. The Court

stated: ‘***life without parole [] alters the offender’s life by a forfeiture that is

irrevocable. It deprives the convict of the most basic liberties without giving hope of

restoration ***[. T]his sentence ‘means denial of hope, it means that good behavior

and character improvement are immaterial; it means that whatever the future might

hold in store for the mind and spirit [of the convict], he will remain in prison for the

rest of his days.’ Graham[, 560 U.S. at 69-70 (quoting Naovarath v. State, 779 P.2d

944 (Nev. 1989))].

The Graham court reviewed retribution, deterrence, incapacitation and

rehabilitation. Regarding incapacitation the court reasoned: ‘By denying the

defendant the right to reenter the community the State makes an irrevocable judgment

about that person’s value and place in society. This judgment is not appropriate in

light of juvenile nonhomicide offender’s capacity for change and limited moral

culpability. A State is not required to guarantee eventual freedom to a juvenile

offender convicted of a nonhomicide crime. What the State must do, however, is give

defendants like Graham some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation. *** The Eighth Amendment *** does

forbid States from making the judgment at the outset that those offenders never will

be fit to reenter society.’ Graham[, 560 U.S. at 75].

Acknowledging that Graham concerned a nonhomicide offense, and Taylor was

convicted of first degree murder does not alter the analysis: that it is impossible for

any system to determine at the outset that a juvenile offender is totally irredeemable

and can never be rehabilitated. The Truth in Sentencing Act as it applies to juvenile

offenders does exactly that. It deprives the juvenile homicide offender any

opportunity to demonstrate rehabilitation. That ignores the reality that juveniles by

definition are immature and moving toward maturity. Granted, some juveniles will

not be able to demonstrate maturity and rehabilitation. It is the deprivation of the

chance to demonstrate fundamental change in his nature that offends our view of

juveniles and justice in the same context.

Finally, the Miller court considered whether a sentence of life without parole for a

juvenile convicted of murder was unconstitutional, and found that it violated the

Eighth Amendment’s prohibition against cruel and unusual punishments.

Most fundamentally, Graham insists that youth matters in determining the

appropriateness of a lifetime of incarceration without the possibility of parole, ‘An

offender’s age,’ we make clear in Graham, ‘is relevant to the Eighth Amendment,’

and so ‘criminal procedure laws that fail to take defendant’s youthfulness into

account at all would be flawed.’ [(Internal quotation marks omitted.) Miller, 567 U.S.

at ___, 132 S. Ct. at 2466 (quoting Graham, 560 U.S. at 75)].

The Miller court went on to analyze what it called the ‘confluence’ of state laws

and reasoned that it was the impact of several laws acting together that caused

concern because it was impossible to tell if the states ‘actually “intended to subject

such offenders to those sentences” ’ or if it was just the fact that statutes in

combination had the effect of life without parole for juvenile offenders. See Miller[,

567 U.S. at ___, 132 S. Ct. at 2473].

The Illinois Truth in Sentencing Act is a good candidate for the same reasoning:

did the Illinois legislature actually intend for juveniles who are[ ] 1) transferred

automatically to adult court by the charging decision of the state’s attorney, with no

requirement for any protocol or reason, and with no judicial review; and are then

2) subject to adult sentences, including adult enhancements; to then be 3) subject to

the truth in sentencing provisions that require (for a murder conviction) they must

serve 100% of their sentence with no possibility of demonstrating maturity or

rehabilitation? Or was the effect of the Truth in Sentencing Act just an unintended

consequence of the transfer to adult court without its own specific legislative decision

making?

An analysis of the General Assemblies from the 87th (1991-1992) through the

96th (2009-2010) for relevant topics reveals that the Truth in Sentencing Act was one

part of the legislature’s response to a severe uptick in violent crime in the early

l990’s. The Congress of the United States responded with the [Violent Crime Control

and Law Enforcement Act of 1994 (42 U.S.C. § 13701 (1994))]. Among other things

the bill provided federal incentive money for states that adopted truth in sentencing

laws in which violent offenders must serve at least 85% of their sentence. Congress

dangled $3.95 billion for 1996 to 2000 in front of states that passed truth in

sentencing laws. It is worth noting that former president Bill Clinton recently

renounced his 1994 crime bill: ‘The problem is the way it was written and

implemented, we have too wide a net….We have too many people in prison. And we

wound up spending—putting so many people in prison that there wasn’t enough

money left to educate them, train the for new jobs and increase the chances when they

came out that they could live productive lives.’ [http://thehill.com/blogs/blog­

briefing-room-news/241247-bill-clinton-renounces-his-1994-crime-bill] (May 6,

2015). In a later CNN interview, the former president said: ‘In that bill there were

longer sentences. And most of these people are in prison under state law, but the

federal law set a trend…And that was overdone. We were wrong about that.’

http://www.cnn.come/2015/07/15/politics/bill-clinton-1994-crime-bill/ (July 15,

2015).

States, including Illinois, wanting to be ‘tough on crime’ and in search of those

federal dollars responded with tougher sentences, mandatory sentences, enhanced

sentences, automatic transfer of juveniles to adult court for certain crimes, and the

Truth in Sentencing Act.

During the debates on the various bills in the House and the Senate, the Illinois

Legislature did not debate the behavioral, psychological or social characteristics of

juveniles. This is not surprising since the scientific research in this area is relatively

new.

And, it is clear that the legislature did not, during this time period, ever consider

the result of the confluence of these tough on crime measures on juveniles. It is this

intersection that is most troubling because it is when truth in sentencing is meshed

with mandatory sentences and mandatory transfer to adult court that the consequences

are most apparent. And those are the very same consequences on juveniles that were

never specifically detailed, debated or considered when the Legislature was

considering these bills.

To her credit, Rep. Barbara Flynn Curie, in a related debate on December 1, 1994,

said: ‘We need to find out whether we are on the right track in dealing with serious

crimes committed by juveniles….we’ve tried, get tough. I think it’s time for us to get

smart…’ [(88th Ill. Gen. Assem., House Proceedings, Dec. 1, 1994, at 72 (statements

of Representative Currie))].

There are other members of the Legislature that were consistent in their instinct

that the tough measures being debated and passed were not necessarily the answer for

juvenile crime.

More persuasive to their colleagues were those who argued for the various bills.

Rep. Rosemary Mulligan, in House debates on April 7, 1995 said: ‘Rehabilitation is a

good thing, but I think we all realize that by the time a young person has committed a

crime we may have passed the point where we can rehabilitate them ….’ [(89th Ill.

Gen. Assem., House Proceedings, Apr. 7, 1995, at 173 (statements of Representative

Currie))].” Taylor, 2015 IL App (1st) 121577-U, ¶¶ 45-71.

¶ 81 When the Truth in Sentencing Act was debated

“[t]here was no debate on the Truth in Sentencing Act that focused specifically on its

impact on juveniles transferred to adult court who were then subject to mandatory

sentence, or for that matter on juveniles at all. The Truth in Sentencing Act [as part of

Pub. Act 89-404] became effective August 20, 1995. It was later struck down by the

Appellate Court as unconstitutional because the full bill violated the single subject

rule in People v. Pitts, 295 Ill. App. 3d 182 (1998)[;] see also People v. Reedy, 295

Ill. App. 3d 34 (1998) and People v. Reedy, 186 Ill. 2d 1 (1999).

In 1998 the Illinois Legislature re-enacted the provisions of the Truth in

Sentencing Act [Pub. Act 90-592] again, curing the constitutional problem, but with

no specific debate on its impact on juvenile offenders who were transferred to adult

court and then subject to mandatory sentences.

One example of the lack of attention to the ramifications of the intersection of

these tough on crime bills appears [in the] debate to add certain sexual offenses to the

truth in sentencing provisions. Rep. Hoffman asked: ‘What about juveniles? Does this

apply to any juvenile crimes?’ and Rep. Righter responded: ‘Only if they are tried and

convicted as adults, it’s my understanding.’ [91st Ill. Gen. Assem., House

Proceedings, Mar. 9, 1999, at 6 (statements of Representatives Hoffman & Righter)].

Those three sentences can hardly qualify as robust debate. The measure passed

without any more discussion.

However, even if the legislature had at some point in the past engaged in debate

on the specific issue of whether juveniles tried as adults should be subject to the Truth

in Sentencing Act, what we know now about juvenile development should require a

new analysis by the legislature.” Id. ¶¶ 72-75.

¶ 82 In particular, I believe “the specific truth in sentencing provision to which defendant was

subjected (730 ILCS 5/3-6-3(a)(2)(i) [(West 2006])), which precludes defendant from any

possibility of early release, to be particularly vexing because defendant cannot, under any

circumstance, demonstrate his potential for rehabilitation at any time prior to the completion

of his sentence.” Id. ¶ 76.

¶ 83 I urge the legislature to reconsider the Truth in Sentencing Act as it applies to juvenile

offenders.