People v. Holman , 2017 IL 120655 ( 2018 )

Digitally signed by
Reporter of Decisions
Reason: I attest to the
Illinois Official Reports accuracy and
integrity of this
document
Supreme Court Date: 2018.03.02
15:19:13 -06'00'
People v. Holman, 2017 IL 120655
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
Court: RICHARD HOLMAN, Appellant.
Docket No. 120655
Filed September 21, 2017
Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Madison County, the Hon.
Charles V. Romani, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
Appeal Defender, and Amanda R. Horner, Assistant Appellate Defender, of
the Office of the State Appellate Defender, of Mt. Vernon, for
appellant.
Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
Solicitor General, and Michael M. Glick and Gopi Kashyap, Assistant
Attorneys General, of Chicago, of counsel), for the People.
Bluhm Legal Clinic, of Chicago (Shobha L. Mahadev and Scott F.
Main, of counsel, and Mila Babic and Betsy Varnau, Law Students),
for amicus curiae Children & Family Justice Center.
Justices 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
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).
-2-
murder. The police obtained a warrant and 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 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.
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.
-3-
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 awoke 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 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
-4-
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.”
¶ 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.”
¶ 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
-5-
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, 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 Pritzker 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.
-6-
¶ 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 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:
-7-
“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 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
-8-
¶ 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 469, 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 489, 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.
¶ 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 474, 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 471, 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
involved as-applied Miller claims challenging so-called mandatory 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.
-9-
irretrievable depravity. Id. Those differences lessen juveniles’ moral culpability and enhance
their prospects for reform. Id. at 472, 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 479, 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.’ 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 483, 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 489, 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 477-78, 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
- 10 -
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
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 480, 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 465, 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, 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,
- 11 -
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 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 (Okla.
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
- 12 -
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 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 477-78, 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 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.
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.
- 13 -
¶ 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 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
- 14 -
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.”
¶ 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.
- 15 -