People v. Buffer , 2019 IL 122327 ( 2019 )

2019 IL 122327IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 122327)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DIMITRI BUFFER, Appellee.
Opinion filed April 18, 2019.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Garman and Theis,
concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion.
OPINION
¶1 Defendant, Dimitri Buffer, filed a pro se postconviction petition pursuant to the
Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). Defendant
asserted that his 50-year prison sentence, imposed for a crime he committed when
he was 16 years old, was unconstitutional as applied to him. The circuit court of
Cook County summarily dismissed the petition. The appellate court reversed the
dismissal, holding that defendant’s sentence, imposed without consideration of his
youth and its attendant characteristics, violated the eighth amendment to the United
States Constitution (U.S. Const., amend. VIII). The appellate court vacated
defendant’s sentence and remanded the case to the circuit court for resentencing.
2017 IL App (1st) 142931.
¶2 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
July 1, 2017). We now affirm the judgment of the appellate court, but on different
grounds, and remand the cause to the circuit court for resentencing in accordance
with section 5-4.5-105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105
(West 2016)).
¶3 I. BACKGROUND
¶4 The appellate court has previously recited the details of defendant’s conviction
and sentence. Therefore, we discuss only those facts and the procedural history that
are pertinent to the issues raised in this appeal.
¶5 A jury found defendant guilty of four counts of first degree murder (720 ILCS
5/9-1(a)(1), (a)(2) (West 2008)), and specifically found that defendant personally
discharged a firearm that caused the victim’s death. Defendant was sentenced in
July 2010. At that time, Illinois law prescribed a sentencing range of 20 to 60 years
for first degree murder (730 ILCS 5/5-4.5-20(a) (West 2008)), and mandated a
minimum 25-year additional prison term for personally discharging a firearm that
caused the victim’s death (id. § 5-8-1(a)(1)(d)(iii)). The circuit court stated that it
had “considered all of the relevant statutory requirements *** including but not
limited to” the evidence at trial, the gravity of the offense, the presentence
investigation report, to a limited extent the financial impact of incarceration, given
defendant’s age and his lack of children or dependents, the evidence in aggravation
and mitigation, potential substance abuse issues, treatment, the potential for
rehabilitation, the possibility of alternative sentencing, defendant’s statement in
allocution, the victim impact statement, and all hearsay at the sentencing hearing
deemed relevant and reliable. The court merged the first degree murder counts and
sentenced defendant to 25 years on the first degree murder conviction and 25 years
for the mandatory firearm add-on, for an aggregate sentence of 50 years, followed
by 3 years of mandatory supervised release.
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¶6 Defendant timely appealed. In June 2012, while defendant’s direct appeal was
pending, the United States Supreme Court decided Miller v. Alabama, 567 U.S. 460(2012), which held that imposing on a juvenile offender a mandatory sentence of
life without the possibility of parole, without consideration of the defendant’s
youth and its attendant characteristics, violated the eighth amendment. Defendant
filed a motion seeking leave to file a supplemental brief addressing the applicability
of Miller to his 50-year sentence. The State objected, and the appellate court denied
defendant leave to file the supplemental brief. The appellate court affirmed
defendant’s conviction and sentence. People v. Buffer, 2012 IL App (1st)
102411-U, leave to appeal denied, No. 115148 (Ill. Jan. 30, 2013). In March 2014,
this court held that Miller applied retroactively to cases on collateral review. People
v. Davis, 2014 IL 115595.
¶7 In May 2014, defendant filed the instant pro se postconviction petition in the
circuit court. Relying on Miller, defendant argued that his 50-year sentence,
imposed for a crime committed when he was a juvenile, violated the eighth
amendment because it constituted a de facto life sentence. Defendant requested that
the circuit court vacate his sentence and conduct a new sentencing hearing. On
August 8, 2014, the circuit court summarily dismissed defendant’s postconviction
petition as frivolous and patently without merit.
¶8 On September 5, 2014, defendant filed a notice of appeal from the circuit
court’s summary dismissal of his postconviction petition. While defendant’s appeal
was pending, the United States Supreme Court decided Montgomery v. Louisiana,
577 U.S. ___, 136 S. Ct. 718 (2016), and agreed with the conclusion we reached in
Davis that Miller applied retroactively to cases on collateral review. Id. at ___, ___,
136 S. Ct. at 729, 736. Also during the pendency of defendant’s appeal, this court
decided People v. Reyes, 2016 IL 119271 (per curiam), and extended Miller’s
holding barring juveniles from mandatory natural life sentences to include
mandatory de facto life sentences. Id. ¶ 9.
¶9 The appellate court reversed the summary dismissal of defendant’s
postconviction petition. 2017 IL App (1st) 142931. The appellate court concluded
that, (1) pursuant to Reyes, defendant’s 50-year sentence was a mandatory de facto
life sentence and (2) the circuit court failed to consider defendant’s youth and its
attendant characteristics in imposing sentence. Therefore, defendant’s sentence
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violated the eighth amendment. Id. ¶¶ 63-64. The appellate court vacated
defendant’s sentence and remanded his case to the circuit court for resentencing
under the juvenile sentencing statute (730 ILCS 5/5-4.5-105 (West 2016)). 2017 IL
App (1st) 142931, ¶¶ 67-69.
¶ 10 The State appeals to this court. We granted the John Marshall Law School’s
Pro Bono Program & Clinic, and the Children and Family Justice Center et al.,
leave to submit amicus curiae briefs in support of defendant. Ill. S. Ct. R. 345 (eff.
Sept. 20, 2010).
¶ 11 II. ANALYSIS
¶ 12 This case comes before us in the context of a postconviction proceeding. The
Post-Conviction Hearing Act provides a procedural mechanism through which
criminal defendants can assert that their federal or state constitutional rights were
substantially violated in their original trials or sentencing hearings. 725 ILCS
5/122-1(a) (West 2014). A postconviction proceeding is not a substitute for a direct
appeal but rather is a collateral attack on a prior conviction and sentence. The
purpose of the proceeding is to allow inquiry into constitutional issues involved in
the original conviction and sentence that have not been, and could not have been,
adjudicated previously on direct appeal. People v. Harris, 224 Ill. 2d 115, 124
(2007); People v. Peeples, 205 Ill. 2d 480, 509-10 (2002). Review of the circuit
court’s dismissal of a postconviction petition is de novo. People v. Hodges, 234 Ill.
2d 1, 9 (2009) (collecting cases).
¶ 13 A. The Eighth Amendment
¶ 14 The State assigns error to the appellate court’s holding that defendant’s 50-year
prison sentence violated the eighth amendment. The State contends that
defendant’s sentence is constitutional as applied to him.
¶ 15 The eighth amendment prohibits, inter alia, “cruel and unusual punishments”
(U.S. Const., amend. VIII) and applies to the states through the fourteenth
amendment. Roper v. Simmons, 543 U.S. 551, 560 (2005) (collecting cases).
“Inherent in that prohibition is the concept of proportionality.” People v. Holman,
-4-
2017 IL 120655, ¶ 33 (citing Graham v. Florida, 560 U.S. 48, 59 (2010)). The
eighth amendment’s ban of excessive punishment flows from the basic precept that
criminal punishment should be graduated and proportioned both to the offender and
the offense. Miller, 567 U.S. at 469; Roper, 543 U.S. at 560; People v. Davis, 2014
IL 115595, ¶ 18. A claim that punishment is constitutionally excessive is judged
not by the standards of the past “but rather by those that currently prevail.” Atkins v.
Virginia, 536 U.S. 304, 311 (2002). The United States Supreme Court has
repeatedly instructed courts to look beyond history to “the evolving standards of
decency that mark the progress of a maturing society” (Trop v. Dulles, 356 U.S. 86,
101 (1958) (plurality opinion)) to determine whether a punishment is so
disproportionate as to be cruel and unusual. See Miller, 567 U.S. at 469; Graham,
560 U.S. at 58; Roper, 543 U.S. at 561; see also Davis, 2014 IL 115595, ¶ 18.
¶ 16 The United States Supreme Court has held that the eighth amendment prohibits:
capital sentences for juveniles who commit murder (Roper, 543 U.S. at 578-79),
mandatory life sentences for juveniles who commit nonhomicide offenses
(Graham, 560 U.S. at 82), and mandatory life sentences for juveniles who commit
murder (Miller, 567 U.S. at 489). Roper, Graham, and Miller established that
“children are constitutionally different from adults for purposes of sentencing.” Id.
at 471. The Court recognized three significant characteristics of juvenile offenders.
First, juveniles lack maturity and a fully developed sense of responsibility, which
leads to dangerous behavior that is careless, impulsive, and reckless. Second,
juveniles are more vulnerable to negative influences and outside pressures, they
have limited control over their own environment, and they lack the ability to
extricate themselves from crime-producing settings. Third, juveniles are more
capable of change than adults, and their actions are less likely to be evidence of
irretrievable depravity. Id. (citing Roper, 543 U.S. at 569-70). Further, none of this
analysis regarding “children—about their distinctive (and transitory) mental traits
and environmental vulnerabilities—is crime-specific.” Id. at 473.
¶ 17 “Because juveniles have diminished culpability and greater prospects for
reform, *** ‘they are less deserving of the most severe punishments.’ ” Id. at 471
(quoting Graham, 560 U.S. at 68). Roper, Graham, and Miller emphasize “that the
distinctive attributes of youth diminish the penological justifications for imposing
the harshest sentences on juvenile offenders, even when they commit terrible
crimes.” Id. at 472.
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¶ 18 Graham and Miller insist that “youth matters in determining the
appropriateness of a lifetime of incarceration without the possibility of parole. ***
[T]he characteristics of youth, and the way they weaken rationales for punishment,
can render a life-without-parole sentence disproportionate.” Id. at 473. The
mandatory penalty schemes in Miller prevented “the sentencer from taking account
of these central considerations. By removing youth from the balance—by
subjecting a juvenile to the same life-without-parole sentence applicable to an
adult—[those] laws prohibit[ed] a sentencing authority from assessing whether the
law’s harshest term of imprisonment proportionately punishes a juvenile offender.”
Id. at 474. This contravenes the foundational principle “that imposition of a State’s
most severe penalties on juvenile offenders cannot proceed as though they were not
children.” Id.
¶ 19 The Court discussed some attendant characteristics of youth as follows:
“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
pressure 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
477-78.
¶ 20 The Court in Miller declared:
“We therefore hold that the 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 479.
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“ ‘A State is not required to guarantee eventual freedom,’ but must provide ‘some
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.’ ” Id. (quoting Graham, 560 U.S. at 75).
¶ 21 In Miller, the Court declined to consider whether “the Eighth Amendment
requires a categorical bar on life without parole for juveniles, or at least for those 14
and younger.” Id. However, the Court reasoned:
“[G]iven all we have said *** about children’s diminished culpability and
heightened capacity for change, we think appropriate occasions for sentencing
juveniles to the harshest possible penalty will be uncommon. That is especially
so because of the great difficulty *** 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.’ [Citations.] 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. at 479-80.
¶ 22 This court held that Miller applied retroactively to cases on collateral review.
Davis, 2014 IL 115595, ¶¶ 39, 42. The United States Supreme Court subsequently
held likewise, concluding that Miller was a substantive constitutional rule that
applied retroactively. Montgomery, 577 U.S. at ___, 136 S. Ct. at 736. In reaching
this conclusion, the Court in Montgomery elaborated on its Miller decision.
¶ 23 Montgomery reiterated the premise that “ ‘children are constitutionally
different from adults for purpose of sentencing.’ ” Id. at ___, 136 S. Ct. at 733
(quoting Miller, 567 U.S. at 471). “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
480).
¶ 24 Montgomery clarified that Miller established both a substantive and a
procedural requirement. “Miller drew a line between children whose crimes reflect
transient immaturity and those rare children whose crimes reflect irreparable
corruption.” Id. at ___, 136 S. Ct. at 734. Even if a court considers a child’s age
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prior to sentencing the child to life in prison without parole, that sentence still
violates the eighth amendment for a juvenile whose crime reflects “ ‘ ‘unfortunate
yet transient immaturity.’ ’ ” Id. at ___, 136 S. Ct. at 734 (quoting Miller, 567 U.S.
at 479, quoting Roper, 543 U.S. at 573). Miller held that sentencing a child to life
without parole is excessive for all but “ ‘ ‘the rare juvenile offender whose crime
reflects irreparable corruption.’ ’ ” Id. at ___, 136 S. Ct. at 734 (quoting Miller, 567
U.S. at 479-80, quoting Roper, 543 U.S. at 573). Miller thereby rendered life
without parole an unconstitutional penalty for that category of juvenile offenders
whose crimes reflect the transient immaturity of youth. “As a result, Miller
announced a substantive rule of constitutional law.” Id. at ___, 136 S. Ct. at 734.
Miller’s procedural component “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. Such a hearing “is
necessary to separate those juveniles who may be sentenced to life without parole
from those who may not. [Citation.] The hearing does not replace but rather gives
effect to Miller’s substantive holding ***.” Id. at ___, 136 S. Ct. at 735. Further,
Miller’s substantive rule of constitutional law applies retroactively to cases on state
court collateral review. Id. at ___, ___, 136 S. Ct. at 729, 736.
¶ 25 Eighth amendment jurisprudence continued to evolve. Approximately six
months after the appellate court filed its opinion in the case at bar, this court
decided Holman, 2017 IL 120655. We recognized in Holman that “Miller contains
language that is significantly broader than its core holding. None of what the Court
said is specific to only mandatory life sentences.” Id. ¶ 38. Surveying case law from
other states, this court in Holman determined as follows:
“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. [Citations.] We agree with that conclusion and hold that Miller
applies to discretionary sentences of life without parole for juvenile
defendants.” Id. ¶ 40.
¶ 26 In Reyes, 2016 IL 119271, decided within a year after Montgomery, this court
held:
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“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. *** Accordingly, we hold
that sentencing a juvenile offender to 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.” Id. ¶ 9.
¶ 27 Therefore, to prevail on a claim based on Miller and its progeny, a defendant
sentenced for an offense committed while a juvenile must show that (1) the
defendant was subject to a life sentence, mandatory or discretionary, natural or
de facto, and (2) the sentencing court failed to consider youth and its attendant
characteristics in imposing the sentence. See Holman, 2017 IL 120655, ¶ 40;
Reyes, 2016 IL 119271, ¶ 9.
¶ 28 B. De Facto Life Sentences
¶ 29 Before this court, the State urges us to decide when a prison sentence for a term
of years imposed on a juvenile defendant is the functional equivalent of life without
parole. Defendant suggests that if this court holds that his prison sentence is
unconstitutional, “we need not decide anything more.” We decline defendant’s
suggestion. “[C]lear, predictable, and uniform constitutional standards are
especially desirable” in applying the eighth amendment. Roper, 543 U.S. at 594(O’Connor, J., dissenting). “Drawing [a] line *** is subject, of course, to the
objections always raised against categorical rules. *** For the reasons we have
discussed, however, a line must be drawn.” Id. at 574 (majority opinion). We
choose to determine when a juvenile defendant’s prison term is long enough to be
considered a de facto life sentence without parole.
¶ 30 The State contends that “experience and common sense compel the conclusion
that a 50-year sentence for a juvenile offender is not ‘unsurvivable’ and thus is not
prohibited for juvenile homicide offenders whose crimes reflect the transient
immaturity of youth.” The State argues that “prison terms of less than 54 years for
juvenile offenders are not functionally equivalent to life without parole.” In
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support, the State points to several appellate court decisions that rejected Miller
claims and reasoned that the shorter prison terms in those cases were not
comparable to the harshest prison term barred by Miller and were “survivable.”
See, e.g., People v. Perez, 2018 IL App (1st) 153629, ¶¶ 37-39 (53-year sentence,
release at age 70); People v. Hoy, 2017 IL App (1st) 142596, ¶ 46 (52-year
sentence, release at age 68); People v. Evans, 2017 IL App (1st) 143562, ¶¶ 15-18
(90-year sentence, earliest release opportunity at age 62); People v. Applewhite,
2016 Il App (1st) 142330, ¶¶ 14-16 (45-year sentence, release at age 62).
¶ 31 The State posits that a prison term of somewhere between 54 and 59 years for a
juvenile offender “is functionally equivalent to life without parole.” Arguing that
“defendants, prosecutors, and courts need to know the constitutional boundaries for
sentencing juvenile homicide offenders,” the State asks this court “to decide as a
matter of law when, within this 54-to-59-year range, a term of years for a juvenile
offender is functionally equivalent to life without parole.” Defendant responds that
the State’s “survivability” standard is “arbitrary, unjustified, and unworkable.” The
parties disagree as to whether, or to what extent, actuarial tables and other statistical
data support their respective arguments for and against “survivability.” Indeed, the
parties disagree as to whether resort should be had to such statistics at all.
¶ 32 Courts have struggled to formulate an exact calculation of a de facto life
sentence imposed on a juvenile that violates the eighth amendment pursuant to
Miller and Montgomery. See, e.g., Perez, 2018 IL App (1st) 153629, ¶ 39
(collecting cases and recognizing “disagreement as to what exactly constitutes a
de facto life sentence for a juvenile”). In the case at bar, the appellate court
correctly observed that the questions of what age constitutes a lifetime, how that
age is determined, and who makes that determination remain unresolved. 2017 IL
App (1st) 142931, ¶ 57.
¶ 33 Some courts have held simply that Miller is triggered whenever a court imposes
a sentence on a juvenile that results in a geriatric release. Practically, and
ultimately, the prospect of geriatric release does not provide a juvenile with a
meaningful opportunity to demonstrate the maturity and rehabilitation required to
obtain release and reenter society. State v. Zuber, 152 A.3d 197, 212-13 (N.J.
2017); Bear Cloud v. State, 2014 WY 113, ¶ 33, 334 P.3d 132; State v. Null, 836
N.W.2d 41, 71 (Iowa 2013). In the case at bar, the appellate court relied on this
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reasoning to conclude that defendant’s 50-year prison sentence was an
unconstitutional de facto life sentence. 2017 IL App (1st) 142931, ¶¶ 61-62.
¶ 34 We choose a different course, one already charted by the entity best suited to do
so—the General Assembly. Of course, “ ‘the Constitution contemplates that in the
end our own judgment will be brought to bear on the question’ ” of constitutionally
excessive punishment. Atkins, 536 U.S. at 312 (quoting Coker v. Georgia, 433 U.S.
584, 597 (1977)). However, the United States Supreme Court has “pinpointed that
the ‘clearest and most reliable objective evidence of contemporary values is the
legislation enacted by the country’s legislatures.’ ” Id. (quoting Penry v. Lynaugh,
492 U.S. 302, 331 (1989)). The Court has observed as follows:
“[T]he fixing of prison terms for specific crimes involves a substantive
penological judgment that, as a general matter, is ‘properly within the province
of legislatures, not courts.’ [Citation.] Determinations about the nature and
purposes of punishment for criminal acts implicate difficult and enduring
questions respecting the sanctity of the individual, the nature of law, and the
relation between law and the social order. *** The efficacy of any sentencing
system cannot be assessed absent agreement on the purposes and objectives of
the penal system. And the responsibility for making these fundamental choices
and implementing them lies with the legislature.” Harmelin v. Michigan, 501
U.S. 957, 998 (1991) (Kennedy, J., concurring in part and concurring in the
judgment, joined by O’Connor and Souter, JJ.).
Accordingly: “Reviewing courts *** should grant substantial deference to the
broad authority that legislatures necessarily possess in determining the types and
limits of punishments for crimes ***.” Solem v. Helm, 463 U.S. 277, 290 (1983).
¶ 35 This conclusion accords with Illinois law. “We have held that the nature,
character and extent of the penalties for a particular criminal offense are matters for
the legislature, which may prescribe definite terms of imprisonment, or specific
amounts as fines or fix the minimum and maximum limits thereof.” People v.
Smith, 14 Ill. 2d 95, 97 (1958); see People v. Steppan, 105 Ill. 2d 310, 319 (1985);
People v. Taylor, 102 Ill. 2d 201, 206 (1984) (“It is within the legislative province
to define offenses and determine the penalties required to protect the interests of
our society.”). We generally defer to the legislature in the sentencing arena because
the legislature, institutionally, is better equipped to gauge the seriousness of various
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offenses and to fashion sentences accordingly. People v. Sharpe, 216 Ill. 2d 481,
487 (2005); People v. Koppa, 184 Ill. 2d 159, 171 (1998). Also, when statutes are
enacted after judicial opinions are published, it must be presumed that the
legislature acted with knowledge of the prevailing case law. People v. Espinoza,
2015 IL 118218, ¶ 34; People v. Hickman, 163 Ill. 2d 250, 262 (1994).
¶ 36 Relevant to the instant case, the United States Supreme Court decided Miller in
2012, and this court decided Davis in 2014. In February 2015, House Bill 2471 was
introduced in the General Assembly and ultimately enacted as Public Act 99-69,
adding section 5-4.5-105 to the Unified Code of Corrections. Pub. Act 99-69 (eff.
Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105). This statute provides a new
sentencing scheme for defendants under the age of 18 when they committed their
offenses. Before any sentence is imposed, subsection (a) requires the sentencing
court to consider several “additional factors in mitigation in determining the
appropriate sentence.” 730 ILCS 5/5-4.5-105(a) (West 2016). This list is taken
from and is consistent with Miller’s discussion of a juvenile defendant’s youth and
its attendant characteristics. See Holman, 2017 IL 120655, ¶¶ 45-46 (citing Miller,
567 U.S. at 477-78). Further, subsections (b) and (c) provide that the imposition of
firearm enhancements is a matter of discretion with the court. 730 ILCS
5/5-4.5-105(b), (c) (West 2018).
¶ 37 Significantly, subsection (c) of the new juvenile sentencing statute provides in
pertinent part as follows:
“(c) Notwithstanding any other provision of law, if the defendant is
convicted of first degree murder and would otherwise be subject to sentencing
under clause (iii), (iv), (v), or (vii) of subparagraph (c) of paragraph (1) of
subsection (a) of Section 5-8-1 of this Code based on the category of persons
identified therein, the court shall impose a sentence of not less than 40 years of
imprisonment.” Id. § 5-4.5-105(c).
¶ 38 It must be remembered that the sentencing ranges for first degree murder for an
adult offender are 20 to 60 years (id. § 5-4.5-20), 60 to 100 years with a finding of
various aggravating factors (id. § 5-8-2), and natural life imprisonment with a
finding of specified aggravating factors (id. §§ 5-4.5-20, 5-8-1).
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¶ 39 However, the General Assembly has determined that the specified first degree
murders that would justify natural life imprisonment for adult offenders would
warrant a mandatory minimum sentence of 40 years for juvenile offenders. The
legislature evidently believed that this 40-year floor for juvenile offenders who
commit egregious crimes complies with the requirements of Miller.
¶ 40 In determining when a juvenile defendant’s prison term is long enough to be
considered de facto life without parole, we choose to draw a line at 40 years. This
specific number does not originate in court decisions, legal literature, or statistical
data. It is not drawn from a hat. Rather, this number finds its origin in the entity best
suited to make such a determination—the legislature. The Supreme Court has made
clear that “[i]t is for the State, in the first instance, to explore the means and
mechanisms for compliance” with eighth amendment mandates pertaining to
juvenile sentencing. Graham, 560 U.S. at 75. As this court recognized long ago,
“ ‘[g]reat constitutional provisions must be administered with caution. *** It must
be remembered that legislatures are ultimate guardians of the liberties and welfare
of the people in quite as great a degree as the courts.’ ” People ex rel. Douglas v.
Barrett, 370 Ill. 464, 467 (1939) (quoting Missouri, Kansas & Texas Ry. Co. v.
May, 194 U.S. 267, 270 (1904)).
¶ 41 Extrapolating from this legislative determination, a prison sentence of 40 years
or less imposed on a juvenile offender provides “ ‘some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation.’ ” Miller, 567
U.S. at 479 (quoting Graham, 560 U.S. at 75). We hereby conclude that a prison
sentence of 40 years or less imposed on a juvenile offender does not constitute a
de facto life sentence in violation of the eighth amendment.
¶ 42 In the case at bar, defendant committed an offense, at age 16, that subjected him
to a legislatively mandated minimum sentence of 45 years and for which he
received a sentence of 50 years. Because defendant’s sentence was greater than 40
years, we conclude that defendant received a de facto life sentence. We also
conclude that the circuit court failed to consider defendant’s youth and its attendant
characteristics in imposing that sentence. Therefore, we hold that defendant’s
sentence violates the eighth amendment. Accordingly, we vacate defendant’s
sentence as unconstitutional pursuant to Miller, Montgomery, Reyes, and Holman.
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¶ 43 C. Remedy
¶ 44 Lastly, the parties disagree as to the appropriate remedy. The State argues, as it
argued before the appellate court, that the appropriate remedy is not to remand for a
new sentencing hearing but rather to remand to the circuit court only to advance
postconviction proceedings to the second stage. Defendant argues that the
appropriate remedy is a new sentencing hearing. We agree with defendant.
¶ 45 The procedural framework of the Post-Conviction Hearing Act (725 ILCS
5/122-1 et seq. (West 2014)) is familiar. The Act provides a three-stage process for
the adjudication of postconviction petitions. At the first stage, the circuit court
determines whether the petition is “frivolous or is patently without merit.” Id.
§ 122-2.1(a)(2). If the petition is not dismissed at the first stage, it advances to the
second stage, where the court may appoint counsel for an indigent defendant and
the State may file responsive pleadings. Id. §§ 122-4, 122-5. If the petition makes a
substantial showing of a constitutional violation, the petition proceeds to the third
stage, where the court conducts an evidentiary hearing. Id. § 122-6; see People v.
Tate, 2012 IL 112214, ¶¶ 9-10; Harris, 224 Ill. 2d at 125-26. Where the first-stage
summary dismissal of a postconviction petition is reversed on appeal, the usual
remedy is to remand for the advancement of the postconviction proceedings to the
second stage. See, e.g., People v. Allen, 2015 IL 113135, ¶¶ 45-46; Tate, 2012 IL
112214, ¶ 26.
¶ 46 However, the record before us does not require factual development. All of the
facts and circumstances to decide defendant’s claim are already in the record. See,
e.g., Holman, 2017 IL 120655, ¶ 32. While the circuit court stated that it
“considered all of the relevant statutory requirements,” the record does not indicate
that the court considered defendant’s youth and its attendant characteristics. See id.¶ 46 (citing Miller, 567 U.S. at 477-78). Accordingly, we earlier held that
defendant’s 50-year prison sentence, imposed for a crime he committed while a
juvenile, violated the eighth amendment. This holding applies retroactively and is
cognizable in defendant’s postconviction proceeding. See Montgomery, 577 U.S. at
___, ___, 136 S. Ct. at 729, 736.
¶ 47 Based on the particular issue raised in this appeal and in the interests of judicial
economy, we agree with the appellate court that the proper remedy is to vacate
defendant’s sentence and to remand for a new sentencing hearing. See, e.g., Davis,
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2014 IL 115595, ¶ 1. Further, the parties correctly agree that defendant is entitled
on remand to be sentenced under the scheme prescribed by section 5-4.5-105 of the
Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)). See Holman,
2017 IL 120655, ¶ 45; Reyes, 2016 IL 119271, ¶ 12; People v. Smolley, 2018 IL
App (3d) 150577, ¶¶ 21-22.
¶ 48 III. CONCLUSION
¶ 49 For the foregoing reasons, the judgment of the appellate court is affirmed, and
the cause is remanded to the circuit court of Cook County for resentencing in
accordance with section 5-4.5-105 of the Unified Code of Corrections (730 ILCS
5/5-4.5-105 (West 2016)).
¶ 50 Appellate court judgment affirmed.
¶ 51 Sentence vacated.
¶ 52 Cause remanded with directions.
¶ 53 JUSTICE BURKE, specially concurring:
¶ 54 In Miller v. Alabama, 567 U.S. 460 (2012), the United State Supreme Court
held that a mandatory sentence of life without the possibility of parole imposed on a
juvenile offender violates the eighth amendment prohibition against cruel and
unusual punishment. The Miller court did not categorically ban life sentences for
juveniles. Rather, under Miller, there are three parameters that, when combined,
will render a juvenile’s sentence unconstitutional: (1) the sentence imposed must
be a life sentence, (2) the sentence imposed must be mandatory, affording no
discretion to the sentencing court, and (3) there must be no possibility for parole.
These three parameters must be present before a sentence imposed on a juvenile
will violate the eighth amendment pursuant to Miller.
¶ 55 In People v. Reyes, 2016 IL 119271 (per curiam), this court addressed one of
these parameters. Although the Supreme Court has not yet weighed in on the issue,
we concluded in Reyes that the Miller rule also applies to mandatory de facto life
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sentences without the possibility of parole. Id. ¶ 10. In Reyes, the defendant was
sentenced to a mandatory term of 97 years, with the earliest possible release after
89 years. Id. ¶ 2. The State conceded that the defendant’s sentence was
unquestionably the functional equivalent of a mandatory life sentence without the
possibility of parole and, therefore, unconstitutional under Miller. Id. ¶ 10.
Accordingly, we remanded for resentencing. Id. ¶ 4. Under the circumstances,
however, we did not need to determine how long a term-of-years sentence had to be
before it would be deemed the equivalent of a life sentence. The State asks us to
make that determination now.
¶ 56 Defendant contends that we should consider whether a sentence violates the
eighth amendment on a case by case basis. However, I agree with the majority that
“ ‘[c]lear, predictable, and uniform constitutional standards are especially
desirable’ in applying the eighth amendment” (supra ¶ 29 (quoting Roper v.
Simmons, 543 U.S. 551, 594 (2005) (O’Connor, J., dissenting))). Thus, it is
appropriate that we decide what mandatory term-of-years sentence without the
possibility of parole constitutes a de facto life sentence pursuant to Miller. I do not
agree, however, with the majority’s resolution of this issue.
¶ 57 In Reyes, we held that a term-of-years sentence imposed on a juvenile will
violate the eighth amendment if, statistically speaking, the sentence is the
equivalent of a life sentence. And, as the State correctly points out in its brief, under
the precepts of Miller a mandatory term-of-years sentence without the possibility of
parole is the equivalent of a life sentence if the sentence virtually guarantees that
the juvenile will die in prison without any opportunity for release. See also People
v. Gipson, 2015 IL App (1st) 122451, ¶¶ 66-67 (15-year-old defendant’s sentence
of 52 years, with earliest possible release at age 60, was not a de facto life sentence
because, according to the defendant, his life expectancy was 67.8 years and
“[a]lthough defendant’s years in society will be precious few, the United States
Supreme Court has drawn the eighth amendment line at life without the possibility
of parole and we cannot cross that line”). Thus, properly framed, the determination
of what constitutes a de facto life sentence is essentially a mathematical
calculation.
¶ 58 Nonetheless, in deciding what mandatory term-of-years sentence is a de facto
life sentence, the majority does not engage in a statistical analysis of the life span of
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juveniles sentenced to life imprisonment or make any attempt to determine what
term-of-years sentence would exceed the minor’s life expectancy and virtually
guarantee that the juvenile will die in prison without any opportunity to be released.
Nor does the majority consider the reasoning of other courts that have grappled
with resolving this admittedly difficult calculation. Instead, the majority chooses “a
different course, one already charted by the entity best suited to do so—the General
Assembly.” Supra ¶ 34. This is where, I believe, the majority goes wrong.
¶ 59 To justify deferring to the legislature, the majority cites case law that stands for
the well-accepted tenet that penological judgments, such as the fixing of
appropriate prison terms for specific crimes and determining the types and limits of
punishments that may be imposed, are properly within the province of the
legislature. But making a penological judgment based on contemporary values is
not what is at issue here. In the appeal before us, we are not asked to decide what
the proper punishment should be for specific crimes committed by juveniles.
Rather, the only question before us is what constitutes a de facto life sentence.
¶ 60 The majority goes even further astray when it relies on section 5-4.5-105 of the
Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)) to reach the
conclusion that a prison term of 40 years “is long enough to be considered de facto
life without parole.” Supra ¶ 40. To be sure, section 5-4.5-105 was enacted by the
legislature in response to Miller and provides, prospectively, a new sentencing
scheme for defendants who were under 18 years of age when they committed their
crimes. As the majority notes, subsection (a) of the statute requires a sentencing
court to consider in mitigation the factors listed in Miller, including the defendant’s
youth and circumstances attendant to youth, as well as the unique characteristics of
the offender and the offense; subsection (b) makes the imposition of sentencing
enhancements based on the possession and/or use of a firearm in the commission of
the offense discretionary rather than mandatory; and subsection (c) requires a
sentencing court to impose on a juvenile a minimum sentence of 40 years’
imprisonment for certain egregious first degree murder offenses that would warrant
a sentence of natural life imprisonment for an adult offender. Supra ¶¶ 36-37
(citing 730 ILCS 5/5-4.5-105(a), (b), (c) (West 2016)). 1 The majority, however,
1
Since the enactment of this new sentencing scheme, any sentence imposed on a juvenile
offender should not run afoul of Miller. This is because the Miller court did not foreclose the
possibility of imposing a life sentence, actual or de facto, as long as that sentence was not mandatory
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mistakenly relies on this statute to make an unjustified leap. It holds that a sentence
greater than 40 years is a de facto life sentence because “[t]he legislature evidently
believed that this 40-year floor for juvenile offenders who commit egregious
crimes complies with the requirements of Miller.” Supra ¶ 39. This analysis is
faulty for several reasons.
¶ 61 First, when the legislature enacted section 5-4.5-105(c), it did not select 40
years as the minimum sentence to be imposed based on its consideration of the life
expectancy of juveniles or because it found a sentence greater than 40 years would
be a de facto life sentence and unconstitutional under Miller. Rather, it merely
decided that a sentence of at least 40 years was necessary to punish a juvenile
offender for committing the specified types of murder listed in that subsection.
¶ 62 Second, the majority claims to be “extrapolating” from the legislature’s
requirement in section 5-4.5-105(c), that a minimum sentence of 40 years must be
imposed for certain offenses, to find that 40 years is the maximum sentence that
may be imposed without becoming a de facto life sentence. The majority provides
no explanation for this maneuver.
¶ 63 Third, and perhaps most importantly, the majority clearly has it backwards. It is
this court’s responsibility to decide whether the legislature’s sentencing scheme is
constitutional, not the other way around. Yet the majority eschews its responsibility
and relies solely on section 5-4.5-105(c) to make the constitutional determination
that any term of imprisonment greater than 40 years is a de facto life sentence,
stating, “This specific number does not originate in court decisions, legal literature,
or statistical data. It is not drawn from a hat. Rather, this number finds its origin in
the entity best suited to make such a determination—the legislature.” Supra ¶ 40.
Not only is the legislature not the “entity best suited” to determine whether its own
and the sentencing court had the opportunity to make a thorough assessment of the defendant, his
youth, and other attendant circumstances before imposing sentence.
In addition, Governor Pritzker recently signed into law Public Act 100-1182 (eff. June 1, 2019),
which added section 5-4.5-110 to the Unified Code of Corrections (730 ILCS 5/5-4.5-110). This
new law provides that, for most crimes, a person who was under the age of 21 when the crime was
committed and is given a lengthy term-of-years sentence will have the ability to petition for parole
after serving 10 years. If the conviction was for first degree murder or aggravated criminal sexual
assault, the person will be eligible to petition for parole review after serving 20 years. The law
applies to sentences imposed after the effective date of June 1, 2019.
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statutory scheme is unconstitutional, it is the wrong entity to make that
determination.
¶ 64 To demonstrate the flaw in the majority’s reasoning, assume for the moment
that a minor committed one of the offenses listed in section 5-4.5-105(c) and the
sentencing court imposed the mandatory minimum sentence of 40 years. The minor
then appealed, arguing that his sentence is unconstitutional pursuant to Miller. How
would we address this appeal? Would we simply find that the legislature evidently
believed that a minimum 40-year sentence complies with Miller and, therefore, it
must be constitutional? If so, this would be quite extraordinary and obviously
incorrect. Yet this is exactly what the majority is saying here.
¶ 65 In my view, the answer to the question “what constitutes a de facto life
sentence” is a calculation—it is when the defendant’s age at the earliest projected
time of release exceeds an incarcerated minor’s average life expectancy. See 2017
IL App (1st) 142931, ¶ 62; People v. Sanders, 2016 IL App (1st) 121732-B, ¶ 26;
Gipson, 2015 IL App (1st) 122451, ¶ 67. I recognize that life expectancy is a
complex composite of several variables that differ on an individual basis. See 2017
IL App (1st) 142931, ¶ 57. Thus, any life expectancy determination will necessarily
be somewhat arbitrary. Nevertheless, using all of the information available to us at
this time, I believe it is possible to arrive at a number that reasonably reflects the
average life expectancy of a minor who is incarcerated for a lengthy period of time.
¶ 66 The appellate court below, like the Sanders court, used a life expectancy of 64
years to calculate a de facto life sentence, relying on the United States Sentencing
Commission Preliminary Quarterly Data Report (2012 Preliminary Report),
http://www.lb7.uscourts.gov/documents/USSC_Quarter_Report_3rd_12_
Final.pdf [https://perma.cc/GX2C-AU53]. However, another resource has shown
that the 64-year life expectancy referenced in the Quarterly Report was formulated
by adding 39 years—a number used, for statistical purposes, to represent a life
sentence of a person incarcerated in federal prison—to the median age of federal
prisoner at the time of sentencing (25 years). See Deborah LaBelle, Michigan Life
Expectancy Data for Youth Serving Natural Life Sentences (2013), available at
http://www.lb7.uscourts.gov/documents/17-12441.pdf [https://perma.cc/9PSY-
3B6Q]. Thus, the accuracy of the 64-year life expectancy figure with regard to
minors is suspect, particularly when one takes into account that it is generally
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recognized that the life expectancy of a minor sentenced to a lengthy prison term is
further diminished. In fact, according to the article by LaBelle cited above, based
on a review of Michigan data, the average life expectancy for a child sentenced to
natural life may be as little as 50.6 years.
¶ 67 Because determining life expectancy is not a precise science, I would err on the
side of caution and find that an incarcerated minor who is sentenced to a lengthy
prison term has a life expectancy of 55 years. Thus, any sentence imposed on a
minor that would result in the minor’s earliest release from prison when he or she is
55 years old or more would be a de facto life sentence.
¶ 68 In the present case, defendant was sentenced to 50 years’ imprisonment for a
crime he committed when he was 16 years old. Taking judicial notice of the Illinois
Department of Corrections website, defendant’s earliest opportunity for release is
May 12, 2059, at which time he would be 66 years old. See 2017 IL App (1st)
142931, ¶ 62. Applying the formula above, defendant’s sentence is a de facto life
sentence and, therefore, violates the eighth amendment of our United States
Constitution. Thus, like the majority, I would affirm the appellate court’s judgment
and remand the matter for resentencing.
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