People v. Holman

2017 IL 120655

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 120655)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

RICHARD HOLMAN, Appellant.

Opinion filed September 21, 2017.

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

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and

Burke concurred in the judgment and opinion.

OPINION

¶1 The central issue in this case is whether defendant Richard Holman, who

received a sentence of life without parole for a murder that he committed at age 17,

is entitled to a new sentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460,

132 S. Ct. 2455 (2012). We hold that the defendant’s original sentencing hearing

complied with Miller and affirm the Madison County circuit court’s decision to

deny his motion for leave to file a successive postconviction petition.

¶2 BACKGROUND

¶3 On July 13, 1979, Rodney Sepmeyer returned from work to the rural house near

downstate Maryville where he lived with his 83-year-old grandmother, Esther

Sepmeyer. Inside, Rodney found Esther’s dead body kneeling and slumped forward

over the side of a bed in a bedroom that they shared. She had been shot in the cheek

just below the right eye, and a pool of blood stained the sheets. The house was

ransacked, and a television, a turntable, a radio, and a lawnmower were missing.

Rodney’s .22-caliber rifle also was missing, and the metal cabinet in the bedroom

where he stored the gun was open.

¶4 Rodney summoned his father, Lenard, who lived nearby. Lenard called the

police. A crime scene technician found a spent .22-caliber shell casing at the base

of the bedroom heating stove, as well as the empty rifle box and an empty box of

rounds on the kitchen floor. The technician lifted latent fingerprints from the handle

of a small mirror left on the bedroom floor and from the door of the metal cabinet.

The coroner’s physician later recovered a .22-caliber bullet from Esther’s neck.

According to the physician, Esther was likely knocked unconscious after being

shot, but she may have lived for as long as a half-hour. After the autopsy, the

investigation of Esther’s murder stalled.

¶5 Several weeks later, the defendant and Girvies Davis were arrested and

incarcerated in the St. Clair County jail for an unrelated offense. While there, the

defendant and Davis both made inculpatory statements about their collaboration in

a crime spree through Madison and St. Clair Counties. In his own handwriting,

Davis listed 11 homicides, shootings, and robberies, which included Esther’s

murder. The defendant told police officers about eight homicides, all of which

appeared on Davis’s list, in addition to Esther’s murder. Regarding that offense,

both the defendant and Davis admitted that they took items from her house, but

each accused the other of being the shooter. 1 They were charged by information

with three counts of first degree murder. The police obtained a warrant and

1

The defendant’s statement was reduced to writing several months after it was made by the

police officer who interrogated him. That written statement does not appear in the record, but the

officer testified at trial as to its contents. Davis’s statement was reduced to writing by another police

officer the day it was made. That written statement does appear in the record, as well as in People v.

Davis, 97 Ill. 2d 1, 8-9 (1983).

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searched Davis’s residence, where they found the radio and the lawnmower. 2 The

State’s fingerprint expert later matched the defendant’s left index fingerprint to the

fingerprints lifted from the mirror and the cabinet.

¶6 The defendant and Davis were tried together. On March 16, 1981, a jury found

the defendant guilty of first degree murder. 3 Because he was five weeks from his

eighteenth birthday at the time of the offense, he was not eligible for the death

penalty. See Ill. Rev. Stat. 1979, ch. 38, ¶ 9-1(b). The multiple-murder sentencing

statute in effect at that time provided that the court “may sentence the defendant to

a term of natural life imprisonment” if any of the aggravating factors in section

9-1(b) of the Criminal Code of 1961 were present. Ill. Rev. Stat. 1979, ch. 38,

¶ 1005-8-1(a)(1). One of those aggravating factors was the prior murders of two or

more persons. Ill. Rev. Stat. 1979, ch. 38, ¶ 9-1(b)(3). The case proceeded to

sentencing.

¶7 The Madison County circuit court’s probation and court services department

prepared a presentence investigation report (PSI). 4 The PSI included the

defendant’s criminal history. At age 14, he was adjudicated delinquent for burglary

and placed on two years’ probation. At age 15, he was adjudicated delinquent for

three counts of criminal damage to property and committed to the Department of

Corrections’ juvenile division. The defendant was paroled and then arrested for

burglary three months later. His parole was revoked, and he was returned to the

Department of Corrections. The defendant was paroled again at age 17. While he

was free, Esther was murdered. The PSI contained the defendant’s statement to the

probation officer about that offense:

“I fenced the stolen stuff but I didn’t commit the home invasion. I wasn’t

present when the murder took place. Girvies Davis made a statement indicating

2

Davis’s statement explained why the police never recovered the television or the rifle.

According to Davis, he and the defendant sold the television at a bar and then “drove halfway across

[the pay bridge] and threw the 22 rifle into the river” on the night of Esther’s murder. The missing

turntable was never mentioned or found.

3

Davis was also found guilty. He received the death penalty, but this court vacated that sentence

and remanded for a new sentencing hearing. Davis, 97 Ill. 2d at 29. Earlier, Davis received the death

penalty for the first degree murder of Charles Biebel. See People v. Davis, 95 Ill. 2d 1 (1983).

Evidence at that trial indicated that the defendant was the “actual triggerman” responsible for

Biebel’s death. Davis, 97 Ill. 2d at 24.

4

The first page of the PSI erroneously stated the defendant’s birth date as August 20, 1960, but

later stated it correctly as August 20, 1961.

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my name. That gave police enough grounds to question me. I refused to talk

because I didn’t know anything.”

¶8 The PSI stated that the defendant’s father died when the defendant was around

7 years old, and his stepfather died when he was around 16. The defendant

reportedly had “a close, loving relationship” with his mother and six siblings. He

was never married but reportedly had two young children. The defendant was

healthy and suffered from no known physical disabilities. According to the PSI, the

defendant had between seven and nine years of formal education, but he was

“borderline retarded.” The probation officer concluded:

“The defendant expressed no guilt for this offense or remorse for the victim,

who was an 82 year old woman who posed no physical threat to him.

The defendant’s history of senseless criminal acts of mortal violence toward

others and lack of remorse for his victims indicates to this officer that the

defendant has no predilection for rehabilitation.”

¶9 Attached to the PSI were three psychological reports—two from a psychiatrist,

Dr. Syed Raza, and one from a psychologist for the circuit court’s probation

department, Cheryl Prost. Dr. Raza’s initial report described his interview with the

defendant. The defendant offered an alternate version of the events on the date of

Esther’s murder. According to the defendant, he drove Davis’s wife to work, drank

beer at a bar with Davis, took a nap at home, picked up a girl, visited another bar

and a “dice house,” and ended up at home. He woke the next morning and heard

police officers speaking to his mother. The defendant was taken to the St. Clair

County jail, where a detective interrogated him. He asserted that he did not

understand most of the questions, and the detective “seemed mad at him and hit

him.” The defendant then was informed that he was charged with murder. Even

though the defendant attended his own trial, he insisted that he still did not know

who had been murdered or how the crime occurred: “My lawyer won’t tell me

either. They say I am stupid.”

¶ 10 Dr. Raza noted that the defendant mentioned an incident prior to 1977 when he

fell from a two-story building and hit his head. Afterwards, he was seen by a

psychiatrist in Rockford. The defendant did not believe that he had a drinking

problem. He had used marijuana for almost a year before his arrest. Dr. Raza found

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that the defendant’s attitude was “a mixture of extreme apprehension with a sense

of hopelessness, some depression and maybe a touch of manipulativeness.” The

interview was difficult because the defendant’s eye contact was extremely poor and

his answers were very vague. Dr. Raza detected no “thought disturbance” and

tentatively diagnosed the defendant with “borderline or dull normal intelligence,

acute reactive anxiety and some depression,” pending further evaluation and

testing.

¶ 11 Prost’s report described her interview with and tests of the defendant. The

defendant again mentioned his childhood fall and stated that, since then, he had had

a severe headache “like dynamite ready to explode,” which he treated with aspirin

every day. Contrary to the PSI, Prost reported that the defendant stated that he was

in seventh grade remedial classes before dropping out of school. On an intelligence

test, the defendant scored in the borderline or mildly retarded range. Prost

attributed some of his performance to “neurological impairment.” Other tests

confirmed that and indicated a high probability of organic brain damage. Prost

recommended a neurological evaluation.

¶ 12 After reviewing Prost’s report, Dr. Raza made an addendum to his initial report.

Dr. Raza stated that he had reviewed the medical records of the defendant from the

Warren G. Murray Children’s Home in Centralia, where the defendant lived for

two months in 1976. The records showed that the defendant received a full physical

examination, which revealed no deficits. He was diagnosed as mildly mentally

retarded. According to Dr. Raza, therapists at the home stated that the defendant “is

at times not aware of his surroundings and is easily led into doing ‘bad deeds,’ ”

due to his lack of confidence and high need for approval from more intelligent

peers. Dr. Raza observed that the defendant’s intelligence test results improved

between his time at the children’s home and his interview with Prost: “This

improvement can be explained by growing up in chronological age and maturation

process of his central nervous system.” The defendant’s verbal intelligence

indicated that he does have capacity for making a “socially appropriate judgment.”

Dr. Raza opined, “Taking all these factors into consideration, it is my opinion that I

do not see him as severely handicapped in terms of intellectual ability as to interfere

with his ability to see right from wrong.”

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¶ 13 At the sentencing hearing, the State presented one witness, a former East

St. Louis homicide section police officer. The officer stated that he investigated the

murder of Frank Cash and the attempted murder of John Ostman and that he

testified in the defendant’s trial for those offenses. The officer also stated that he

investigated the murder of John Oertel and that he testified in the defendant’s trial

for that offense. Oertel was killed roughly two months before Esther, while the

defendant was still 17 years old. Cash was killed a month after Esther, after the

defendant had turned 18. The State introduced certified copies of the defendant’s

convictions in both cases. In the former he received concurrent 35- and 25-year

sentences. In the latter he received a 40-year sentence.

¶ 14 Before closing arguments, the defendant’s attorney told the court that the

defendant did not want to offer any mitigating evidence and that the defendant’s

mother did not want to testify on his behalf. Consequently, the defendant’s attorney

conceded, “I have no evidence to present at this time” and declined the trial court’s

invitation to make any additions, corrections, or modifications to the PSI. In

closing, the prosecutor highlighted the defendant’s criminal history and the fact

that he was on parole when Esther was murdered. According to the prosecutor,

Esther was old and feeble and posed no threat to the defendant. The prosecutor

noted that the defendant still denied any involvement in the murder, despite his

fingerprints at the scene. The prosecutor added:

“I believe more than about any other Defendant that I have seen come

through here Mr. Holman deserves to be removed from society for the rest of

his natural life. It’s only an accident of birth that he did not qualify for the death

penalty, having been too young when these offenses were committed to have

qualified. Not being able to seek the death penalty on Mr. Holman, I believe

that we have to seek the next best thing ***. *** I believe that the life sentence

here is necessary to deter others from going out on similar crime sprees ***.”

¶ 15 The defendant’s attorney argued that the question before the court was whether

the court “should assess natural life to this very young man.” The defendant’s

attorney asked the court to consider rehabilitation as a goal and argued that

isolation in the prison system militates against that goal. Finally, the defendant’s

attorney pleaded with the trial court to consider “some other alternative than that

requested by the State and to give this young man an opportunity.”

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¶ 16 The trial court offered the defendant an opportunity to make a statement. The

defendant said:

“Your Honor, [the prosecutor] made the statement that I was convicted of

several—three counts of Murder before. That I have been convicted as of what

they say as accessory of the Murder, of knowing this Murder have taken place.

I was never convicted of no Murder. And that is my statement.”

¶ 17 Then the trial court spoke:

“In this sentence the Court has considered the factors enumerated in the

Criminal Code as factors in Mitigation and factors in Aggravation. The Court

does not find any factors in Mitigation. There are many factors in Aggravation.

The Court has considered the evidence presented at the trial in this cause. The

Court has considered the presentence investigation. The Court has considered

the evidence presented at this hearing today and the arguments of counsel. And

the Court believes that this Defendant cannot be rehabilitated, and that it is

important that society be protected from this Defendant.

It is therefore the sentence of this Court and you are hereby sentenced, Mr.

Holman, to the Department of Corrections for the rest of your natural life.”

¶ 18 The defendant appealed his conviction but did not challenge his sentence. The

appellate court affirmed the conviction. People v. Holman, 115 Ill. App. 3d 60

(1983).

¶ 19 In 2001, the defendant filed two pro se postconviction petitions. Both petitions

were dismissed, and the defendant’s appeals from those rulings were also

dismissed. In 2009, the defendant filed a pro se “petition for relief from void

judgment” under section 2-1401 of the Code of Civil Procedure. See 735 ILCS

5/2-1401 (West 2010). That petition was denied, and the appellate court affirmed.

People v. Holman, 2011 IL App (5th) 090678-U.

¶ 20 In 2010, the defendant filed a pro se petition for leave to file a successive

postconviction petition, the pleading that began the case before us. The defendant

raised several claims; his final claim purported to assert his actual innocence. That

petition was denied. On appeal, the defendant abandoned his earlier claims and

instead argued that his life sentence was unconstitutional under Roper v. Simmons,

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543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and particularly

Miller. The appellate court rejected that argument because the defendant had not

raised it before the trial court. People v. Holman, 2012 IL App (5th) 100587-U,

¶ 18. The appellate court further noted that the defendant’s sentence was not

unconstitutional under Miller because the defendant here was “afforded a

‘sentencing hearing where natural life imprisonment [was] not the only available

sentence.’ ” Id. ¶ 19 (quoting People v. Morfin, 2012 IL App (1st) 103568, ¶ 59).

The defendant appealed.

¶ 21 While the defendant’s petition for leave to appeal was pending before us, we

decided People v. Davis, 2014 IL 115595, which held that Miller announced a new

substantive rule of constitutional law and that rule applied retroactively.

Consequently, we denied the defendant’s petition but vacated the appellate court’s

initial decision in this case and remanded so that court could consider whether, in

light of Davis, a different result was warranted. People v. Holman, No. 115597

(Jan. 28, 2015) (supervisory order).

¶ 22 On remand, the appellate court reached the merits of the defendant’s Miller

claim. 2016 IL App (5th) 100587-B. The appellate court recognized that Miller

and, more recently, Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016),

require trial courts to consider youth and its attendant characteristics before

imposing life sentences on juveniles. 2016 IL App (5th) 100587-B, ¶¶ 35-37.

Because the trial court in this case did so, the defendant’s sentence was

constitutionally permissible. Id. ¶ 46. The appellate court rejected the defendant’s

alternative argument that Miller should be extended to create a categorical ban on

juvenile life sentences. Id. ¶ 52.

¶ 23 This court allowed the defendant’s petition for leave to appeal. Ill. S. Ct. R.

315(a) (eff. Mar. 15, 2016). We also allowed the Children & Family Justice Center

of the Bluhm Legal Clinic at Northwestern University School of Law to file an

amicus curiae brief in support of the defendant. See Ill. S. Ct. R. 345 (eff. Sept. 20,

2010). On the legal issues before us, our review is de novo. People v. Thompson,

2015 IL 118151, ¶ 25.

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¶ 24 ANALYSIS

¶ 25 The Post-Conviction Hearing Act offers a procedural device through which a

criminal defendant may assert that “in the proceedings which resulted in his or her

conviction there was a substantial denial of his or her rights under the Constitution

of the United States or of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1)

(West 2010). Proceedings on a postconviction petition are collateral to proceedings

in a direct appeal and focus on constitutional claims that have not and could not

have been previously adjudicated. See People v. Towns, 182 Ill. 2d 491, 502

(1998). Accordingly, issues that were raised and decided on direct appeal are

barred from consideration by the doctrine of res judicata; issues that could have

been raised, but were not, are forfeited. See People v. Ortiz, 235 Ill. 2d 319, 328

(2009). The Act itself contemplates the filing of a single petition: “Any claim of

substantial denial of constitutional rights not raised in the original or an amended

petition is waived.” 725 ILCS 5/122-3 (West 2010). Because successive petitions

impede the finality of criminal litigation, that statutory bar will be relaxed only

“ ‘when fundamental fairness so requires.’ ” People v. Coleman, 2013 IL 113307,

¶ 81 (quoting People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002)).

¶ 26 Generally, there are two such instances. See People v. Edwards, 2012 IL

111711, ¶ 22. A defendant may raise a due process claim of actual innocence to

prevent a miscarriage of justice (Coleman, 2013 IL 113307, ¶ 83), or a defendant

may raise any other defaulted constitutional claim by satisfying the so-called

“cause-and-prejudice” test (id. ¶ 82). To establish “cause,” the defendant must

show some objective factor external to the defense that impeded his ability to raise

the claim in the initial postconviction proceeding. Pitsonbarger, 205 Ill. 2d at 460.

To establish “prejudice,” the defendant must show the claimed constitutional error

so infected his trial that the resulting conviction violated due process. Id. at 464.

The cause-and-prejudice test has been codified in the Act. See 725 ILCS 5/122-1(f)

(West 2010); People v. Tidwell, 236 Ill. 2d 150, 156 (2010).

¶ 27 Initially, the State contends that the defendant’s Miller claim is

“thrice-forfeited” because he failed to raise an as-applied challenge to his sentence

in his 2010 motion for leave to file a successive postconviction petition, his 2012

pre-remand appellate court briefs, and his 2013 pre-remand petition for leave to

appeal. Relying upon People v. Jones, 213 Ill. 2d 498, 505 (2004), the State asserts

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that a claim not raised in a postconviction petition cannot be raised for the first time

on appeal. The State insists that the defendant’s as-applied Miller claim must be

presented to the trial court in a motion for leave to file a successive postconviction

petition.

¶ 28 The defendant contends that the State forfeited its forfeiture argument because

that argument was raised for the first time in the State’s response brief before this

court. The defendant’s point is well taken. If the State’s position is that the

defendant should have raised his as-applied Miller claim in a motion for leave to

file a successive postconviction petition, the State should have made that argument

during supplemental briefing on remand when the defendant originally presented

that claim. See People v. Lucas, 231 Ill. 2d 169, 175 (2008) (“The doctrine of

forfeiture applies to the State as well as to the defendant and the State may forfeit an

argument that the defendant forfeited an issue by not properly preserving it for

review.”).

¶ 29 The State’s forfeiture aside, we would still reach the merits of the defendant’s

claim. In Thompson, 2015 IL 118151, ¶¶ 36-37, we explained the difference

between facial and as-applied constitutional claims:

“Although facial and as-applied constitutional challenges are both intended to

address constitutional infirmities, they are not interchangeable. [Citation.] An

as-applied challenge requires a showing that the statute violates the constitution

as it applies to the facts and circumstances of the challenging party. [Citation.]

In contrast, a facial challenge requires a showing that the statute is

unconstitutional under any set of facts, i.e., the specific facts related to the

challenging party are irrelevant. [Citation.]

Because facial and as-applied constitutional challenges are distinct actions,

it is not unreasonable to treat the two types of challenges differently ***. By

definition, an as-applied constitutional challenge is dependent on the particular

circumstances and facts of the individual defendant or petitioner. Therefore, it

is paramount that the record be sufficiently developed in terms of those facts

and circumstances for purposes of appellate review.”

¶ 30 The defendant’s claim in Thompson illustrated that point. The defendant there

maintained that the evolving science on juvenile maturity and brain development

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highlighted in Miller applied not only to juveniles but also to young adults like

himself between the ages of 18 and 21. Id. ¶ 38. We rejected that claim because the

record contained “nothing about how that science applies to the circumstances of

defendant’s case, the key showing for an as-applied constitutional challenge.” Id.

We stated the trial court was the most appropriate tribunal for such factual

development. Id.

¶ 31 Thompson mentioned Davis, where we held that the statute under which a

juvenile defendant received a mandatory life sentence was not facially

unconstitutional under Miller. Davis, 2014 IL 115595, ¶ 32. We also held that

Miller applied to, and invalidated, that sentence, even though the defendant’s

Miller claim was raised for the first time on appeal. Id. ¶ 43. We excused the

defendant’s failure to raise an as-applied Miller claim sooner because the record

was sufficiently developed to address that type of claim.

¶ 32 Thompson instructs that a defendant must present an as-applied constitutional

challenge to the trial court in order to create a sufficiently developed record. Davis

creates a very narrow exception to that rule for an as-applied Miller claim for which

the record is sufficiently developed for appellate review. Here, in deciding the

defendant’s first petition for leave to appeal, we directed the appellate court to

reconsider its judgment in light of Davis. Like the Miller claim in Davis, the Miller

claim in this case does not require factual development. All of the facts and

circumstances to decide the defendant’s claim—that his sentencing hearing did not

comply with Miller—are already in the record. Consequently, in the interests of

judicial economy (see People v. Bailey, 159 Ill. 2d 498, 506 (1994)), we choose to

address the merits of the defendant’s claim, rather than requiring him to return to

the trial court to file another motion for leave to file another successive

postconviction petition and restart the process of adjudicating his Miller claim. 5

5

The State has brought to our attention the recent Fourth District Appellate Court decision in

People v. Merriweather, 2017 IL App (4th) 150407. Merriweather held that a juvenile defendant

“forfeited his as-applied challenge to his sentence under Miller by raising it for the first time on

appeal” and urged him to raise such a claim in a motion for leave to file a successive postconviction

petition. Id. ¶¶ 18-19. The Fourth District departed from the First District decision in People v.

Nieto, 2016 IL App (1st) 121604. Nieto, referencing an “implicit finding” in Thompson, stated that

“juveniles can raise as-applied Miller challenges for the first time on appeal.” Id. ¶ 39.

Merriweather and Nieto both involved as-applied Miller claims challenging so-called mandatory

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¶ 33 The United States Constitution prohibits “cruel and unusual punishments.” U.S.

Const., amend. VIII. Inherent in that prohibition is the concept of proportionality.

See Graham, 560 U.S. at 59. Criminal punishment should be “graduated and

proportioned to both the offender and the offense.” Davis, 2014 IL 115595, ¶ 18

(citing Miller, 567 U.S. at ___, 132 S. Ct. at 2463, and Roper, 543 U.S. at 560).

When the offender is a juvenile and the offense is serious, there is a genuine risk of

disproportionate punishment. In Roper, Graham, and Miller, the United States

Supreme Court addressed that risk and unmistakably instructed that youth matters

in sentencing. Roper held that the eighth amendment prohibited capital sentences

for juveniles who commit murder. Roper, 543 U.S. at 578-79. Graham held that the

eighth amendment prohibited mandatory life sentences for juveniles who commit

nonhomicide offenses. Graham, 560 U.S. at 82. And Miller held that the eighth

amendment prohibited mandatory life sentences for juveniles who commit murder.

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

¶ 34 The defendant in this case did not receive a mandatory life sentence but rather a

discretionary life sentence. Thus, we initially must decide whether his Miller claim

is even viable. That is, we must decide whether Miller applies to discretionary life

sentences. In Davis, we noted:

“Miller holds that a mandatory life sentence for a juvenile violates the

eighth amendment prohibition against cruel and unusual punishment. ***

Miller does not invalidate the penalty of natural life without parole for multiple

murderers, only its mandatory imposition on juveniles. [Citation.] A minor may

still be sentenced to natural life imprisonment without parole so long as the

sentence is at the trial court’s discretion rather than mandatory.” (Emphases in

original.) Davis, 2014 IL 115595, ¶ 43.

Davis is correct about the scope of Miller. In Davis, however, we were not asked to

decide whether Miller could apply to discretionary sentences. Further, we did not

discuss Miller at length or address Montgomery at all because it had not yet been

decided. We turn to those cases.

de facto life sentences. Because that type of claim is not before us here, those cases are

distinguishable. We leave for another day any resolution of the purported appellate court split.

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¶ 35 In Miller, the Court identified a foundational principle that “imposition of a

State’s most severe penalties on juvenile offenders cannot proceed as though they

were not children.” Miller, 567 U.S. at ___, 132 S. Ct. at 2466. That principle

emerged from two lines of precedent: capital cases where the Court required the

sentencer to consider the characteristics of the defendant and the circumstances of

the offense before imposing the death penalty and so-called “categorical ban”

cases, like Roper and Graham, where the Court invalidated certain sentences for all

juvenile defendants. Roper and Graham established that “children are

constitutionally different from adults for purposes of sentencing” in three important

ways. Id. at ___, 132 S. Ct. at 2464. First, juveniles are more immature and

irresponsible than adults. Id. (citing Roper, 543 U.S. at 569). Second, juveniles are

more vulnerable to negative influences and pressures from family and peers than

adults. Id. And third, juveniles are more malleable than adults—their characters are

less fixed and their malfeasance is less indicative of irretrievable depravity. Id.

Those differences lessen juveniles’ moral culpability and enhance their prospects

for reform. Id. at ___, 132 S. Ct. at 2465. Thus, the Miller Court summarized:

“[T]he Eighth Amendment forbids a sentencing scheme that mandates life in

prison without possibility of parole for juvenile offenders. [Citation.] By

making youth (and all that accompanies it) irrelevant to imposition of that

harshest prison sentence, such a scheme poses too great a risk of

disproportionate punishment.” Id. at ___, 132 S. Ct. at 2469.

¶ 36 The Court noted, “Because that holding is sufficient to decide these cases, we

do not consider [the petitioners’] alternative argument that the Eighth Amendment

requires a categorical bar on life without parole for juveniles, or at least for those 14

and younger.” Id. The Court continued, recognizing that life without parole

sentences for juvenile defendants may comport with the eighth amendment:

“[G]iven all we have said in Roper, Graham, and this decision about children’s

diminished culpability and heightened capacity for change, we think

appropriate occasions for sentencing juveniles to this harshest possible penalty

will be uncommon. That is especially so because of the great difficulty we

noted in Roper and Graham of distinguishing at this early age between ‘the

juvenile offender whose crime reflects unfortunate yet transient immaturity,

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

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Although we do not foreclose a sentencer’s ability to make that judgment in

homicide cases, we require it to take into account how children are different,

and how those differences counsel against irrevocably sentencing them to a

lifetime in prison.” Id.

¶ 37 The Court reiterated that its decision “mandates only that a sentencer follow a

certain process—considering an offender’s youth and attendant

characteristics—before imposing a particular penalty,” life imprisonment without

the possibility of parole. Id. at ___, 132 S. Ct. at 2471. Stated differently, a trial

court must consider a juvenile’s “age and age-related characteristics and the nature

of their crimes” as “mitigating circumstances.” Id. at ___, 132 S. Ct. at 2475.

Earlier in its opinion, the Court discussed those characteristics:

“[I]n imposing a State’s harshest penalties, a sentencer misses too much if he

treats every child as an adult. To recap: Mandatory life without parole for a

juvenile precludes consideration of his chronological age and its hallmark

features—among them, immaturity, impetuosity, and failure to appreciate risks

and consequences. It prevents taking into account the family and home

environment that surrounds him—and from which he cannot usually extricate

himself—no matter how brutal or dysfunctional. It neglects the circumstances

of the homicide offense, including the extent of his participation in the conduct

and the way familial and peer pressures may have affected him. Indeed, it

ignores that he might have been charged and convicted of a lesser offense if not

for incompetencies associated with youth—for example, his inability to deal

with police officers or prosecutors (including on a plea agreement) or his

incapacity to assist his own attorneys. [Citations.] And finally, this mandatory

punishment disregards the possibility of rehabilitation even when the

circumstances most suggest it.” Id. at ___, 132 S. Ct. at 2468.

¶ 38 Miller contains language that is significantly broader than its core holding.

None of what the Court said is specific to only mandatory life sentences.

Montgomery made that clear. In Montgomery, the Court held that Miller applied

retroactively. 577 U.S. at ___, 136 S. Ct. at 736. Because the defendant there had

received a mandatory life sentence, which violated Miller, the Court reversed that

sentence and remanded for further proceedings. In doing so, the Court offered

insight into Miller. The Montgomery Court summarized Miller in several similar

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ways. The Court asserted that “Miller requires that before sentencing a juvenile to

life without parole, the sentencing judge take into account ‘how children are

different, and how those differences counsel against irrevocably sentencing them to

a lifetime in prison.’ ” Id. at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at ___,

132 S. Ct. at 2469). The Court repeated that “Miller requires a sentencer to consider

a juvenile offender’s youth and attendant characteristics before determining that

life without parole is a proportionate sentence.” Id. at ___, 136 S. Ct. at 734.

According to the Court, “[a] hearing where ‘youth and its attendant characteristics’

are considered as sentencing factors is necessary to separate those juveniles who

may be sentenced to life without parole from those who may not.” Id. at ___, 136 S.

Ct. at 735 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2460).

¶ 39 Notably, unlike Miller, Montgomery did not specify which characteristics

attend youth. The Court remained hesitant to create more procedural requirements

for state trial courts, such as a requirement that courts make findings of fact

regarding a juvenile’s incorrigibility, before imposing a life sentence. Id. at ___,

136 S. Ct. at 735. The Court emphasized, however, that while “Miller did not

impose a formal factfinding requirement[, that] does not leave States free to

sentence a child whose crime reflects transient immaturity to life without parole.”

Id. Such a sentence is disproportionate under the eighth amendment. Id.

¶ 40 A handful of cases from other states have limited Miller and Montgomery to

only mandatory life sentences. See Foster v. State, 754 S.E.2d 33, 37 (Ga. 2014);

Arredondo v. State, 406 S.W.3d 300, 307 (Tex. App. 2013); see also Jones v.

Commonwealth, 795 S.E.2d 705, 721 (Va. 2017) (“[b]oth cases addressed

mandatory life sentences without possibility of parole” (emphasis in original)).

Those cases give insufficient regard to the Supreme Court’s far-reaching

commentary about the diminished culpability of juvenile defendants, which is

neither crime- nor sentence-specific. The greater weight of authority has concluded

that Miller and Montgomery send an unequivocal message: Life sentences, whether

mandatory or discretionary, for juvenile defendants are disproportionate and

violate the eighth amendment, unless the trial court considers youth and its

attendant characteristics. See, e.g., State v. Riley, 110 A.3d 1205, 1216 (Conn.

2015) (“Miller does not stand solely for the proposition that the eighth amendment

demands that the sentencer have discretion to impose a lesser punishment than life

without parole on a juvenile homicide offender”); Aiken v. Byars, 765 S.E.2d 572,

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576 (S.C. 2014) (“whether their sentence is mandatory or permissible, any juvenile

offender who receives a sentence of life without the possibility of parole is entitled

to the same constitutional protections afforded by the Eighth Amendment’s

guarantee against cruel and unusual punishment”). We agree with that conclusion

and hold that Miller applies to discretionary sentences of life without parole for

juvenile defendants. We must next decide what it means to apply Miller.

¶ 41 The defendant urges us to adopt the characteristics mentioned in Miller, which

he terms the “Miller factors,” and direct trial courts to use them when revisiting life

sentences imposed on juvenile defendants before that case was decided. In

response, the State acknowledges that Miller requires trial courts to consider the

mitigating characteristics of youth. The State, however, contends that, although the

Court provided an illustrative list of some of those characteristics, it did not require

consideration of any specific factors.

¶ 42 The appellate court observed that courts in other states have struggled with how

to apply Miller. 2016 IL App (5th) 100587-B, ¶ 33 (quoting Riley, 110 A.3d at

1214 n.5). Some courts have read Miller narrowly, holding that trial courts must

consider generally mitigating circumstances related to a juvenile defendant’s

youth. See, e.g., Ex Parte Henderson, 144 So. 3d 1262, 1283 (Ala. 2013) (“the

Miller Court did not delineate specifically which factors to use in sentencing a

juvenile”); Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (holding that the

sentencing court in that case complied with the requirements of Miller by taking

into account how juveniles are different from adults); State v. Long, 138 Ohio St. 3d

478, 2014-Ohio-849, 8 N.E.3d 890, ¶¶ 15-16 (stating that Miller “does not lay out

the ‘certain process’ that trial judges should follow when sentencing juveniles” and

that various factors “may prove helpful” but are not required).

¶ 43 Other courts have read Miller more broadly, holding that trial courts must

consider specifically the characteristics mentioned by the Supreme Court. See, e.g.,

People v. Gutierrez, 324 P.3d 245, 268-69 (Cal. 2014) (“Miller discussed a range of

factors relevant to a sentencer’s determination of whether a particular defendant” is

irreparably corrupt); Riley, 110 A.3d at 1216 (quoting Miller’s list of

characteristics); State v. Null, 836 N.W.2d 41, 74-76 (Iowa 2013) (listing factors

and stating that Miller provided “clearer guidance on the considerations given in

sentencing”); State v. Fletcher, 47,777, p. 10 (La. App. 2 Cir. 4/10/13); 112 So. 3d

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1031 (remanding for “a more thorough review of the appropriate factors enunciated

in Miller”); State v. Hart, 404 S.W.3d 232, 238 (Mo. 2013) (en banc) (holding that

the juvenile defendant’s life sentence was unconstitutional because “the sentence

[must] consider whether this punishment is just and appropriate in light of [his] age,

maturity and the other factors discussed in Miller”); State v. Ali, 855 N.W.2d 235,

256-57 (Minn. 2014) (stating that “mitigating circumstances might include, but are

not limited to,” the characteristics in Miller); Parker v. State, 2011-KA-01158-SCT

(¶ 19) (Miss. 2013) (noting that Miller identified “several factors,” then quoting

Miller’s list of characteristics); Luna v. State, 387 P.3d 956, 962 (Ok. 2016)

(quoting Miller and labeling three of the listed characteristics “important

youth-related considerations”); Commonwealth v. Knox, 50 A.3d 732, 745 (Pa.

2012) (stating that “although Miller did not delineate specifically what factors a

sentencing court must consider, at a minimum it should consider” a paraphrased

version of the listed characteristics); Aiken, 765 S.E.2d at 577 (quoting the factors

listed in Miller); Bear Cloud v. State, 2013 WY 18, ¶ 42, 294 P.3d 36 (quoting the

factors listed in Miller and stating that those factors are “not exhaustive”). As the

California Supreme Court observed, “the emerging body of post-Miller case law”

has held that a trial court must consider some variant of the Miller factors before

imposing a life sentence without the possibility of parole. Gutierrez, 324 P.3d at

269.

¶ 44 We adopt the latter approach. Not only is that approach consistent with People

v. Reyes, 2016 IL 119271, ¶ 3, where we referred to the characteristics listed in

Miller as “mitigating factors,” it is also consistent with our earlier case law. We

have long held that age is not just a chronological fact but a multifaceted set of

attributes that carry constitutional significance. See People v. McWilliams, 348 Ill.

333, 336 (1932) (stating that, in sentencing a juvenile defendant, the trial court

“may search anywhere” for aggravation and mitigation evidence, including “the

general moral character of the offender, his mentality, his habits, his social

environments, his abnormal or subnormal tendencies, his age, his natural

inclination or aversion to commit crime, the stimuli which motive his conduct, and

*** [his] life, family, occupation, and record”); People v. Miller, 202 Ill. 2d 328,

341 (2002) (holding that “a mandatory sentence of natural life in prison with no

possibility of parole grossly distorts the factual realities of the case and does not

accurately represent [the] personal culpability” of the 15-year-old defendant); cf.

People v. La Pointe, 88 Ill. 2d 482, 497 (1981) (“[h]ighly relevant—if not

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essential—to [a sentencing judge’s] selection of an appropriate sentence is the

possession of the fullest information possible concerning the defendant’s life and

characteristics” (internal quotation marks omitted)).

¶ 45 Additionally, consideration of the Miller factors is consistent with section

5-4.5-105 of the Unified Code of Corrections, which now requires the trial court to

consider factors taken from the Supreme Court’s list. See 730 ILCS 5/5-4.5-105

(West 2016). Because Miller is retroactive (see Montgomery, 577 U.S. at ___, 136

S. Ct. at 736; Davis, 2014 IL 115595, ¶ 39), all juveniles, whether they were

sentenced after the statutory amendment became effective on January 1, 2016, or

before that, should receive the same treatment at sentencing. See People v. Ortiz,

2016 IL App (1st) 133294, ¶ 23. 6

¶ 46 Under Miller and Montgomery, a juvenile defendant may be sentenced to life

imprisonment without parole, but only if the trial court determines that the

defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or

irreparable corruption beyond the possibility of rehabilitation. The court may make

that decision only after considering the defendant’s youth and its attendant

characteristics. Those characteristics include, but are not limited to, the following

factors: (1) the juvenile defendant’s chronological age at the time of the offense and

any evidence of his particular immaturity, impetuosity, and failure to appreciate

risks and consequences; (2) the juvenile defendant’s family and home

environment; (3) the juvenile defendant’s degree of participation in the homicide

and any evidence of familial or peer pressures that may have affected him; (4) the

juvenile defendant’s incompetence, including his inability to deal with police

officers or prosecutors and his incapacity to assist his own attorneys; and (5) the

juvenile defendant’s prospects for rehabilitation. See Miller, 567 U.S. at ___, 132

S. Ct. at 2468.

¶ 47 For juvenile defendants like the defendant in this case, who were sentenced

before the statutory amendment, any inquiry into the Miller factors is

backwards-looking. As Graham instructed, “[e]ven if the State’s judgment that [the

defendant] was incorrigible were later corroborated by prison misbehavior or

6

According to a recent report, there are 20 juveniles, including the defendant, serving

discretionary life sentences in Illinois. See A State-by-State Look at Juvenile Life Without Parole,

Associated Press, July 31, 2017, https://apnews.com/9debc3bdc7034ad2a68e62911fba0d85.

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failure to mature, the sentence was still disproportionate because that judgment was

made at the outset.” Graham, 560 U.S. at 73. Bad conduct while imprisoned cannot

buttress a finding of incorrigibility. Similarly, good conduct while imprisoned

cannot undercut such a finding. In revisiting a juvenile defendant’s life without

parole sentence, the only evidence that matters is evidence of the defendant’s youth

and its attendant characteristics at the time of sentencing. Whether such evidence

exists depends upon the state of the record in each case. A court revisiting a

discretionary sentence of life without parole must look at the cold record to

determine if the trial court considered such evidence at the defendant’s original

sentencing hearing. We must decide whether the trial court did so here.

¶ 48 In announcing the defendant’s sentence, the trial court explicitly stated that it

considered the trial evidence and the PSI, as well as the evidence and arguments

from the sentencing hearing. The trial court knew the defendant was 17 at the time

of the offense, and the prosecutor and the defendant’s attorney both highlighted his

age in their arguments at the sentencing hearing. The PSI and the psychological

reports provided some insight into his mentality but did not depict him as

immature, impetuous, or unaware of risks. The PSI included information about the

defendant’s family. Although his father and his stepfather had died, he reportedly

maintained a close relationship with his mother and siblings. The evidence at trial

showed that there was some dispute between the defendant and Davis about who

shot Esther, but both were intimately involved with the offense. The defendant’s

fingerprints were found in two locations at the house, including the cabinet where

the rifle was kept. The PSI alerted the trial court to the defendant’s susceptibility to

peer pressure, as well as his low intelligence and possible brain damage from a head

injury, but there was nothing presented at trial or sentencing to indicate that the

defendant was incompetent and could not communicate with police officers or

prosecutors or assist his own attorney. Dr. Raza’s second report spoke positively

about the defendant’s verbal intelligence. As to the defendant’s prospects for

rehabilitation, the PSI included a statement from the probation officer, who found

“no predilection for rehabilitation,” in light of the defendant’s “history of senseless

criminal acts of mortal violence toward others and lack of remorse for his victims.”

¶ 49 The defendant insists that the trial court did not, in fact, consider any mitigating

circumstances of his youth because the trial court stated that it found “no mitigating

factors.” The defendant misapprehends the trial court’s statement. The court

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actually said that it considered the statutory factors in aggravation and mitigation

and that it found none of the latter. The trial court’s statement is undeniably true.

There was no evidence at trial or sentencing regarding any of the 12 factors listed in

section 1005-5-3.1(a). See Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-5-3.1(a). Further, the

defendant forgets that he advised his attorney that he did not want to offer any

mitigating evidence and his mother advised his attorney that she did not want to

testify on his behalf. The defendant’s attorney informed the court of their wishes

and acknowledged, “I have no evidence to present at this time.” And the

defendant’s attorney specifically declined the trial court’s invitation to make any

additions, corrections, or modifications to the PSI. In short, the defendant had every

opportunity to present evidence to show that his criminal conduct was the product

of immaturity and not incorrigibility. See Montgomery, 577 U.S. at ___, 136 S. Ct.

at 736 (juveniles facing life sentences “must be given the opportunity to show their

crime did not reflect irreparable corruption”). He chose to offer nothing.

¶ 50 Thus, the trial court had no evidence to consider on any of the statutory factors

in mitigation, but some evidence related to the Miller factors. On the other side of

the scale, the trial court had significant evidence to consider on the statutory factors

in aggravation. See Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-5-3.2. The defendant admits

in his reply brief that “there are bad facts.” That is an understatement. The trial

court knew those facts, having presided over the case from pretrial motion hearings

through the trial and the sentencing hearing. The court concluded that the

defendant’s conduct placed him beyond rehabilitation and sentenced him to life

without parole. The defendant’s sentence passes constitutional muster under

Miller.

¶ 51 Finally, we note that amicus asks for a categorical ban on life sentences for

juveniles. We refuse to adopt such a rule. Whether or not discretionary life

sentences for juveniles are advisable is a question for legislators. Whether or not

such sentences are constitutional is a question for judges, and the justices of the

United States Supreme Court have so far declared that they may be, provided the

trial court complies with Miller. Even the defendant agrees that “[n]othing in this

Court’s jurisprudence or Miller held that a natural life sentence may never be

appropriate.”

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¶ 52 CONCLUSION

¶ 53 For the reasons that we have stated, we affirm the appellate court’s judgment,

which affirmed the trial court’s decision to deny the defendant’s motion for leave to

file a successive postconviction petition.

¶ 54 Affirmed.

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