                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Johnson, 2013 IL App (5th) 110112




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     COREY JOHNSON, Defendant-Appellant.



District & No.              Fifth District
                            Docket No. 5-11-0112


Filed                       October 9, 2013


Held                        The dismissal of defendant’s postconviction petition was affirmed as to
(Note: This syllabus        most of his 19 claims of error, including allegations of ineffective
constitutes no part of      assistance of his trial and appellate counsel, following his convictions for
the opinion of the court    two first-degree murders, but pursuant to his claim based on the
but has been prepared       imposition of a mandatory life sentence without the possibility of parole
by the Reporter of          on a person who was 16 years of age at the time he shot the victims, his
Decisions for the           sentence was vacated and the cause was remanded for a new sentencing
convenience of the          hearing in which defendant’s sentence could be reconsidered in light of
reader.)
                            the United States Supreme Court’s decision in Miller, which forbids a
                            mandatory sentence of life imprisonment without the possibility of parole
                            on those under 18 years of age at the time of their offense.


Decision Under              Appeal from the Circuit Court of St. Clair County, No. 99-CF-995; the
Review                      Hon. Jan V. Fiss, Judge, presiding.


Judgment                    Affirmed in part and vacated in part; cause remanded with directions.
Counsel on                 Corey Johnson, of Menard, appellant pro se.
Appeal
                           Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,
                           Stephen E. Norris, and Jennifer Camden, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.

                           Shobha L. Mahadev, Project Director of Illinois Coalition for the Fair
                           Sentencing of Children, of Northwestern University School of Law, and
                           Lawrence A. Wojcik and Eric M. Roberts, both of DLA Piper LLP (US),
                           both of Chicago, for amicus curiae.


Panel                      JUSTICE GOLDENHERSH delivered the judgment of the court, with
                           opinion.
                           Justices Stewart and Wexstten concurred in the judgment and opinion.




                                              OPINION

¶ 1         Defendant, Corey Johnson, age 16 at the time of offenses in 1999, was tried as an adult
        and convicted of first-degree murder (720 ILCS 5/9-1(a) (West 1998)) in the shooting deaths
        of Charles Evans, age 37 at the time of his death, and Jeremiah Scott, age 18 at the time of
        his death. The prosecution’s theory was that defendant shot Evans and Scott during an
        attempted carjacking. Prior to trial, the defendant told police he shot Evans and Scott in self-
        defense after they kidnapped him. At trial, defendant changed his story and testified he got
        into the car to show Evans and Scott where to buy crack cocaine. He testified that instead of
        following his directions, they told him they wanted to buy crack in St. Louis and began
        driving in that direction, at which point defendant began to fear for his life. Defendant
        testified that there was a struggle for the gun which resulted in the deaths of Evans and Scott.
        The jury found defendant guilty on both counts.
¶ 2         A presentence investigation report showed that defendant had two prior incidents of
        delinquency. On November 14, 1997, defendant admitted to a delinquency/residential
        burglary petition and was placed on one year’s probation, which he successfully completed.
        On May 27, 1999, defendant admitted to a delinquency/burglary petition and was placed on
        one year’s probation, which was not successfully completed due to the murders of Evans and
        Scott. The presentence investigation further showed defendant violated the inmate discipline
        code on six occasions while awaiting trial at the St. Clair County jail. These violations led
        to loss of privileges and lockdown. The presentence investigation showed that defendant
        completed his GED.


                                                  -2-
¶3        A pretrial psychiatric evaluation concluded that defendant has a low frustration tolerance
      level and revealed that he had been hospitalized when he was eight years old for psychiatric
      reasons at the request of a Department of Children and Family Services counselor for
      aggression, including fire-setting, but had never received any psychotropic medication.
      During the evaluation by the psychiatrist, defendant admitted to occasionally smoking
      marijuana and a long history of alcohol abuse. By age 14, defendant was drinking daily and
      had experienced memory lapses. He continued to drink excessively until the time of his
      incarceration on the murder charges.
¶4        A victim impact statement was submitted by the wife of one of the victims as to how her
      husband’s murder had adversely affected her. The State argued that pursuant to section 5-8-
      1(a)(1)(c)(ii) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2002)),
      the trial court was required to sentence defendant to a mandatory term of natural life in
      prison. Defense counsel agreed that, pursuant to the statute, the trial court lacked discretion
      in sentencing, but objected on the basis that “mandatory sentencing is per se
      unconstitutional.”
¶5        On April 15, 2003, the trial court sentenced defendant to a mandatory term of natural life
      imprisonment without the possibility of parole. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2002).
      This court affirmed defendant’s conviction on direct appeal on September 8, 2004. People
      v. Johnson, No. 5-03-0296 (2004) (unpublished order under Supreme Court Rule 23). On
      January 28, 2005, defendant filed a pro se petition for relief from judgment (735 ILCS 5/2-
      1401 (West 2004)), which the trial court dismissed sua sponte. On July 21, 2005, defendant
      filed an appeal of that ruling and also filed a pro se petition pursuant to the Post-Conviction
      Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 2004)) in which he raised 11 claims
      of error. On September 8, 2005, the trial court dismissed the petition as “frivolous and
      patently without merit,” and defendant filed a notice of appeal. The appeals were
      consolidated. This court reversed the dismissal of defendant’s pro se petition and remanded
      for further proceedings. People v. Johnson, 377 Ill. App. 3d 854, 879 N.E.2d 977 (2007).
¶ 6       On November 26, 2008, counsel was appointed to represent defendant in additional
      postconviction proceedings. In 2009, defendant filed a pro se petition for new counsel. After
      a hearing, the trial court denied defendant’s motion to appoint new counsel and gave
      defendant the choice of allowing him to keep his previously appointed counsel or proceed
      pro se. Defendant chose to proceed pro se. Ultimately, defendant elected to proceed with a
      40-page, single-spaced postconviction petition filed pro se on April 12, 2010, which added
      additional arguments to the petition previously addressed by this court. Most of the
      allegations raised in the petition pertained to allegations of ineffective assistance of trial and
      appellate counsel. Defendant also asserted inter alia that the State presented perjured
      testimony at trial and that his sentence of mandatory life in prison failed to reflect his ability
      to be rehabilitated and constituted cruel and unusual punishment. The following are
      defendant’s 19 claims of error:
              “1. Defendant was denied due process, a fair trial and effective assistance of counsel
          due to trial counsel’s failure to interview and investigate witnesses, visit and investigate
          the crime scene, call witnesses to testify, and obtain and present evidence that would
          have supported defendant’s defense and appellate counsel was ineffective for failing to

                                                 -3-
raise these issues on direct appeal.
     2. Trial counsel was ineffective for failing to preserve defendant’s right to challenge
his sentence and the trial judge improperly admonished defendant of his appeal rights
after sentencing and appellate counsel was ineffective for failing to raise this issue on
direct appeal. The petition recounts a colloquy between defense counsel and the judge
about whether the sentence was mandatory. Counsel was required to file a motion to
reconsider sentence prior to filing the notice of appeal.
     3. The trial court’s denial of defendant’s motion to suppress his statements to police
was inconsistent with the evidence presented and both trial counsel and appellate counsel
were ineffective for failing to challenge the ruling.
     4. Defendant’s mandatory sentence does not reflect his ability to be rehabilitated and
constitutes cruel and unusual punishment.
     5. Trial counsel was ineffective in that he advised defendant to stipulate to illegally
obtained evidence, and appellate counsel was ineffective for failing to raise this issue on
appeal.
     6. Defendant was denied a fair trial because of improper closing argument and trial
counsel was ineffective for failing to object, and appellate counsel was ineffective for
failing to raise this issue on direct appeal.
     7. Defendant was denied a fair trial and effective assistance of counsel because of
counsel’s failure to object to the State’s knowing use of false testimony at the
suppression hearing, failure to properly prepare for the hearing and make the trial court
aware that defendant had been questioned more times than the State acknowledged,
failure to consult with defendant prior to the suppression hearing, and failure to file a
motion to suppress all the illegally obtained evidence, and appellate counsel was
ineffective for failing to raise these issues on direct appeal.
     8. Trial counsel was ineffective for failing to file a motion to dismiss the indictment
based upon prosecutorial misconduct, the State’s knowing use of perjured testimony at
the grand jury proceedings, and appellate counsel was ineffective for failing to raise this
issue on direct appeal.
     9. Trial counsel was ineffective for failing to object to prosecutorial misconduct at
trial and failing to allege such misconduct in the motion for a new trial, and appellate
counsel was ineffective for failing to raise this issue on direct appeal.
     10. The trial court abused its discretion by allowing Detective Brian Lammers to
testify about a photograph that showed there were no bushes in the area where defendant
initially said he was kidnapped while hiding in said bushes and both trial counsel and
appellate counsel were ineffective for failing to raise this issue.
     11. The trial court erred in not appointing new counsel to represent defendant at
sentencing and during the posttrial phase since defendant alleged several instances of
ineffectiveness of trial counsel, and appellate counsel was ineffective for failing to raise
this issue.
     12. Defense counsel was ineffective for failing to obtain the results of a urine


                                      -4-
           specimen taken at the Juvenile Detention Center which would have shown defendant was
           intoxicated during at least one of the interview sessions and this would have led to that
           statement being suppressed.
               13. Defendant was denied a fair trial and due process because of the State’s failure
           to disclose evidence including statements, names of eye witnesses, and photographs, and
           his counsel was ineffective for failing to notify the trial court of the State’s failure to
           provide such evidence, and appellate counsel was ineffective for failing to raise this issue
           on direct appeal.
               14. Defendant was denied a fair trial, due process, and effective assistance of counsel
           due to trial counsel’s failure to file a motion in limine to prevent the State from
           presenting evidence of defendant’s prior bad acts, and appellate counsel was ineffective
           for failing to raise this issue on direct appeal.
               15. Defendant was denied due process, a fair trial, and effective assistance of counsel
           because of trial counsel’s failure to tender involuntary manslaughter instructions and
           presenting a defense that was not one agreed upon by defendant, and appellate counsel
           was ineffective for failing to raise this issue on direct appeal.
               16. Defendant was denied due process and effective assistance of counsel due to the
           suppression hearing court abusing its discretion by allowing the State to go beyond the
           scope of direct examination of defendant, allowing one of the witnesses to testify for
           improper reasons and commit perjury, and assisting the State in its case, and defense
           counsel was ineffective for not raising this in his motion for a new trial, and appellate
           counsel was ineffective for not raising this issue on direct appeal.
               17. Defendant was denied due process and a fair trial due to illegal arrest and
           evidence obtained therefrom.
               18. The cumulative effect of the above mentioned errors deprived defendant of due
           process, a fair trial, and effective assistance of counsel.
               19. The cumulative effect of the above mentioned errors deprived defendant of due
           process and effective assistance of appellate counsel.”
      In response, on December 11, 2010, the State filed a motion to dismiss defendant’s
      postconviction petition.
¶ 7        On February 1, 2011, the circuit court entered an order dismissing defendant’s petition.
      The circuit court found defendant failed to prove any of his numerous claims of ineffective
      assistance of trial and/or appellate counsel, defendant’s claim that the State presented
      perjured testimony was without merit, defendant’s claim that his rights were violated under
      the Convention on the Rights of the Child or the International Covenant on Civil and
      Political Rights was without merit in that neither of those documents was applicable to the
      instant case and that all judges involved had considered defendant’s rights as a juvenile,
      Illinois law has upheld the imposition of mandatory natural life sentences for juveniles in
      similar cases, and defendant’s claims are barred by waiver/forfeiture and his claim
      concerning failure to instruct the jury on involuntary manslaughter is barred under the
      doctrine of res judicata. The circuit court also found defendant had not been denied the
      necessary documents to present his claims.

                                                -5-
¶ 8         In this appeal, defendant raises his previous claims, as well as new claims relating to the
       automatic transfer statute and the mandatory-natural-life-sentencing statute pursuant to
       Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), issued on June 25, 2012, after the
       trial court entered its order denying defendant’s postconviction petition. In Miller, the
       Supreme Court held the federal constitution’s ban against cruel and unusual punishment
       forbids a mandatory sentence of life imprisonment without the possibility of parole upon
       offenders who were under the age of 18 years of age at the time of their offense. The Illinois
       Coalition for the Fair Sentencing of Children filed an amicus curiae brief in support of
       defendant’s request for resentencing in light of Miller. Defendant’s brief breaks down his
       arguments into six categories: (1) the automatic transfer statute, (2) the mandatory-natural-
       life-sentencing statute, (3) claims of ineffective assistance of counsel, violation of a right to
       a fair trial, and the prohibition against cruel and unusual punishment, (4) violation of
       procedural due process due to failure to hold a hearing and rule on defendant’s petition for
       contempt prior to conducting a hearing on the State’s motion to dismiss, (5) additional claims
       of lack of reasonable assistance of counsel due to the circuit court’s failure to appoint new
       appellate counsel, and (6) additional errors relating mostly to the circuit court’s denial of
       defendant’s motion to relitigate his motion to suppress statements. After careful
       consideration, we affirm in part, but vacate defendant’s sentence and remand for a new
       sentencing hearing so that defendant’s mandatory sentence of natural life in prison without
       the possibility of parole is reconsidered in accordance with the principles set forth by the
       United States Supreme Court in Miller.

¶ 9                                          ANALYSIS
¶ 10       The Act provides a mechanism by which state prisoners may collaterally challenge their
       convictions and/or sentences for substantial violations of their federal or state constitutional
       rights that occurred at their trial and that were not, and could not have been, previously
       adjudicated. People v. Whitfield, 217 Ill. 2d 177, 183, 840 N.E.2d 658, 663 (2005).
       Therefore, res judicata bars issues decided previously on appeal, and issues not raised, even
       though they could have been raised on appeal, are waived. People v. Williams, 209 Ill. 2d
       227, 233, 807 N.E.2d 448, 452 (2004). This appeal comes to us after a second-stage
       dismissal. At a second-stage proceeding, the circuit court must determine whether the
       petitioner is indigent, and, if so, whether he wishes to have counsel appointed to represent
       him. 725 ILCS 5/122-5 (West 2008). To survive a second-stage dismissal, the postconviction
       petition must make a substantial showing of a constitutional violation. People v. Quigley,
       365 Ill. App. 3d 617, 618, 850 N.E.2d 903, 905 (2006). When ruling on a motion to dismiss
       a postconviction petition, the circuit court must accept as true all well-pleaded facts that are
       not positively rebutted by the record. Williams, 209 Ill. 2d at 233, 807 N.E.2d at 452. A
       second-stage dismissal is reviewed de novo. People v. Boyd, 347 Ill. App. 3d 321, 327, 807
       N.E.2d 639, 645 (2004).

¶ 11                                        I and II
¶ 12       Defendant argues that the automatic transfer provision of the Illinois Juvenile Court Act


                                                 -6-
       of 1987 (705 ILCS 405/5-130(1)(a) (West 2002)) and the mandatory-life-sentencing statute
       as applied to defendant, a 16-year-old at the time of the murders, are unconstitutional. The
       State replies that defendant’s new claims relating to the automatic transfer statute and the
       mandatory-natural-life-sentencing statute were not raised in defendant’s postconviction
       petition and are unreviewable by this court. The State also claims that these arguments could
       have been raised on direct appeal and are, therefore, waived. The State further argues these
       claims are meritless. We disagree with the State with respect to the mandatory-natural-life-
       sentencing statute. As for the automatic transfer statute, even if the issue was properly raised,
       which it was not, courts have rejected the arguments defendant raises regarding substantive
       and procedural due process, the eighth amendment, and the proportionate-penalties clause.
       See People v. Salas, 2011 IL App (1st) 091880, 961 N.E.2d 831. Defendant has failed to
       convince us to the contrary.
¶ 13        However, with regard to the mandatory-natural-life-sentencing statute, defendant
       specifically challenged the statute under which he was sentenced which mandated a natural
       life term without the possibility of parole. In his petition, defendant claimed he “was denied
       his constitutional rights under the State and Federal constitutions to effective assistance of
       counsel, to have a sentence that reflect [sic] his ability to be rehabilitated, *** and that [his]
       sentence is cruel.” We also note that Miller v. Alabama has only been recently decided and
       to ignore it and its applicability in the instant case would constitute a serious injustice.
¶ 14        The statute under which defendant was sentenced provides:
                “(c) the court shall sentence the defendant to a term of natural life imprisonment
            when the death penalty is not imposed if the defendant,
                     ***
                     (ii) is a person who, at the time of the commission of the murder, had attained the
                age of 17 or more and is found guilty of murdering an individual under 12 years of
                age; or, irrespective of the defendant’s age at the time of the commission of the
                offense, is found guilty of murdering more than one victim[.]” 730 ILCS 5/5-8-
                1(a)(1)(c)(ii) (West 2002).
       Our supreme court has found this statute to be unconstitutional as applied to a 15-year-old
       defendant who was convicted of murder based upon a theory of accountability. People v.
       Miller, 202 Ill. 2d 328, 781 N.E.2d 300 (2002).
¶ 15        In that case, our supreme court held that this statute violated the proportionate-penalties
       clause as applied to its defendant, “a 15-year-old with one minute to contemplate his decision
       to participate in the incident and stood as a lookout during the shooting, but never handled
       a gun.” Miller, 202 Ill. 2d at 341, 781 N.E.2d at 308-09. Accordingly, our supreme court
       affirmed the trial court’s decision to impose a 50-year prison sentence. Miller, 202 Ill. 2d at
       343, 781 N.E.2d at 310. However, the court refused to hold that a sentence of life
       imprisonment for a juvenile offender convicted under a theory of accountability would never
       be appropriate, as “[i]t is certainly possible to contemplate a situation where a juvenile
       offender actively participated in the planning of a crime resulting in the death of two or more
       individuals, such that a sentence of natural life imprisonment without the possibility of parole
       is appropriate.” Miller, 202 Ill. 2d at 341, 781 N.E.2d at 309.

                                                  -7-
¶ 16       In Miller v. Alabama, the United States Supreme Court considered the appeals of “two
       14-year-old offenders *** convicted of murder and sentenced to life imprisonment without
       the possibility of parole. In neither case did the sentencing authority have any discretion to
       impose a different punishment.” Miller, 567 U.S. at ___, 132 S. Ct. at 2460. In that case,
       Evan Miller was granted certiorari from a direct appeal, but the other defendant, Kuntrell
       Jackson, was before the court on collateral review, specifically the review of the dismissal
       of a state habeas petition. Miller, 567 U.S. at ___, 132 S. Ct. at 2461-63.
¶ 17       The Supreme Court relied on its earlier decisions in Roper v. Simmons, 543 U.S. 551
       (2005), and Graham v. Florida, 560 U.S. 48 (2010), declaring unconstitutional the
       sentencing of a minor to either death or life imprisonment without parole for a nonhomicide
       offense. It also noted that it had held unconstitutional the mandatory imposition of a capital
       sentence, ruling that the characteristics of a defendant and the details of his offense must be
       considered before sentencing him to death. The Supreme Court specifically stated that
       “Graham and Roper and our individualized sentencing cases alike teach that in imposing a
       State’s harshest penalties, a sentencer misses too much if he treats every child as an adult”
       because a mandatory sentence “precludes consideration of [the offender’s] chronological age
       and its hallmark features–among them, immaturity, impetuosity, and failure to appreciate
       risks and consequences.” Miller, 567 U.S. at ___, 132 S. Ct. at 2468. Following these
       precedents, the Supreme Court found as follows:
           “[A] judge or jury must have the opportunity to consider mitigating circumstances before
           imposing the harshest possible penalty for juveniles. By requiring that all children
           convicted of homicide receive lifetime incarceration without possibility of parole,
           regardless of their age and age-related characteristics and the nature of their crimes, the
           mandatory sentencing schemes before us violate this principle of proportionality, and so
           the Eighth Amendment’s ban on cruel and unusual punishment.” Miller, 567 U.S. at ___,
           132 S. Ct. at 2475.
       However, the Supreme Court refused to categorically declare that a juvenile can never
       receive a life sentence without the possibility of parole for a homicide offense and
       distinguished earlier decisions in which mandatory natural life imprisonment of adults was
       upheld. Miller, 567 U.S. at ___, 132 S. Ct. at 2469-70 (citing Harmelin v. Michigan, 501
       U.S. 957 (1991) (which upheld a mandatory sentence of life without the possibility of parole
       for possession of more than 650 grams of cocaine)). Nevertheless, the Court stated, “[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.” Miller, 567 U.S. at ___, 132 S. Ct. at
       2469. Thus, according to the Supreme Court’s dictate in Miller, a defendant under the age
       of 18 cannot be automatically sentenced to life imprisonment without the possibility of
       parole, as was the defendant in the instant case.
¶ 18       The amicus brief contains an argument that the statute under which defendant was
       sentenced is void ab initio. However, it is clear that Miller in no way affects the validity of
       the natural-life-imprisonment statute as to defendants under the age of 18 and does not
       deprive or divest a state of its authority to sentence a juvenile defendant at the time of the
       offense, such as defendant herein. See People v. Williams, 2012 IL App (1st) 111145, ¶ 46,

                                                -8-
       982 N.E.2d 181; People v. Morfin, 2012 IL App (1st) 103568, ¶ 40, 981 N.E.2d 1010. The
       question then becomes, Does Miller apply retroactively?
¶ 19       Both sides raise numerous arguments and cite an abundance of authority as to whether
       or not Miller should apply retroactively, i.e., whether Miller constitutes a procedural change
       or whether it constitutes a substantive change, which should or should not be applied
       retroactively. We recognize that the State has a legitimate interest in the finality of criminal
       convictions and, therefore, new constitutional rules of criminal procedure are generally not
       applied retroactively to cases on collateral review. People v. Sanders, 238 Ill. 2d 391, 401,
       939 N.E.2d 352, 358 (2010). However, in order to determine whether Miller should be
       applied retroactively, we look to the standards set forth by the Supreme Court in Teague v.
       Lane, 489 U.S. 288 (1989), and adopted by our supreme court in People v. Flowers, 138 Ill.
       2d 218, 561 N.E.2d 674 (1990).
¶ 20       Our supreme court has succinctly explained the Teague analysis as follows:
           “Generally, new rules are not to be applied retroactively to cases on collateral review
           except in two instance: (1) if the rule places certain kinds of primary, private individual
           conduct beyond the power of the criminal-law-making authority to proscribe; or (2) if the
           rule requires the observance of those procedures that are implicit in the concept of
           ordered liberty.” People v. Sanders, 238 Ill. 2d 391, 401, 939 N.E.2d 352, 358 (2010).
       The second exception is limited to “ ‘watershed rules of criminal procedure’ ” and to “those
       new procedures without which the likelihood of an accurate conviction is seriously
       diminished.” Sanders, 238 Ill. 2d at 401, 939 N.E.2d at 358 (quoting Teague, 489 U.S. at
       311).
¶ 21       In Morfin, our colleagues in the First District applied a Teague analysis and held that
       Miller creates a new substantive rule that applies retroactively and that courts are required
       to hold a sentencing hearing for every minor convicted of first-degree murder at which a
       sentence other than natural life imprisonment must be available for consideration. Morfin,
       2012 IL App (1st) 103568, ¶ 56, 981 N.E.2d 1010. The Morfin court found that its decision
       was reinforced by the fact that in Miller, one of the two defendants was before the Supreme
       Court on collateral review and received the same relief as the defendant on direct review.
       Morfin, 2012 IL App (1st) 103568, ¶ 57, 981 N.E.2d 1010.
¶ 22       In People v. Williams, 2012 IL App (1st) 111145, 982 N.E.2d 181, the First District held
       that Miller constituted a substantial change in the law and was a watershed rule of criminal
       procedure, and also pointed out the importance between the two defendants in Miller,
       specifically stating:
           “It is instructive that the Miller companion case, Jackson v. Hobbs, arising on collateral
           review, involved a life-without-parole-sentence heretofore final. Notwithstanding its
           finality, the Supreme Court of the United States in effect retroactively applied Miller and
           vacated Jackson’s sentence. ‘[O]nce a new rule is applied to the defendant in the case
           announcing the rule, evenhanded justice requires that it be applied retroactively to all
           who are similarly situated.’ Teague, 489 U.S. at 300. The Miller case held under the
           eighth amendment that it is cruel and unusual punishment to impose a mandatory life
           sentence without parole to a special class–juveniles. It would also be cruel and unusual

                                                 -9-
           to apply that principle only to new cases.” Williams, 2012 IL App (1st) 111145, ¶ 54, 982
           N.E.2d 181.
       We agree with our colleagues in the First District that it would be cruel and unusual to apply
       Miller only to new cases and hold that Miller should apply retroactively. However, we
       acknowledge that not all courts agree on the issue of retroactivity.
¶ 23       For example, in Craig v. Cain, No. 12-30035 (5th Cir. Jan. 4, 2013) (per curiam)
       (unpublished opinion), the United States Fifth Circuit Court of Appeals held Miller
       established a new rule, but that new rule did not apply retroactively, as Miller did not
       categorically bar all sentences of life imprisonment for juveniles and did not qualify as a
       watershed rule of criminal procedure, as it was an outgrowth of the Supreme Court’s prior
       decisions relating to individualized sentencing determinations. In People v. Carp, 828
       N.W.2d 685 (Mich. Ct. App. 2012), a Michigan appellate court held that Miller should not
       be applied retroactively to cases already final on appeal when the Miller decision was
       rendered. That court analyzed the retroactivity question using a Teague analysis, as well as
       the Michigan state standard, and found that Miller dealt exclusively with sentencing and,
       therefore, was procedural, not substantive, in nature and did not comprise a watershed rule.
       We find Carp distinguishable on the grounds that it employed its own state’s standards, and
       to the extent it is not distinguishable, we respectfully disagree with it and other courts which
       have determined that Miller should not apply retroactively.
¶ 24       Looking at the case before us, it is clear that the sentencing court did not consider
       defendant’s status as a juvenile at the time of the offense when making its determination.
       Even defense counsel agreed that pursuant to statute, defendant was to be sentenced to
       mandatory life imprisonment without the possibility of parole. The mandatory life sentence
       imposed herein violates the eighth amendment’s prohibition on cruel and unusual
       punishment. Miller, 567 U.S. at ___, 132 S. Ct at 2460. We, therefore, vacate defendant’s
       sentence and remand for a new sentencing hearing in which natural life imprisonment is not
       the only available sentence. We note, however, that defendant may again be sentenced to
       natural life in prison, as there is nothing which prohibits a sentence of natural life in prison
       for a minor so long as the sentence is at the trial court’s discretion and not mandatory. Miller,
       202 Ill. 2d at 341, 781 N.E.2d at 309.

¶ 25                                               III
¶ 26        Defendant attempts to raise a myriad of other issues in his third issue raised on appeal.
       Defendant asserts claims of denial of due process, ineffective assistance of counsel, violation
       of a right to fair trial, and the prohibition against cruel and unusual punishment. The State
       replies that we should strike or disregard the claims raised in the third issue due to violations
       of Illinois Supreme Court Rule 341 (eff. July 1, 2008), which deals with the content of briefs,
       and even if we chose to consider these arguments, they are without merit. We agree with the
       State.
¶ 27        In the instant case, defendant discharged his appointed counsel and chose to proceed on
       the pro se petition he filed on April 12, 2010. The petition is 40 pages long, typed, and
       single-spaced, and it contains 19 claims, with most of the arguments pertaining to ineffective

                                                 -10-
       assistance of trial and appellate counsel. In response, the State filed a detailed motion to
       dismiss, which included citations to the record and supporting case law. The circuit court
       dismissed under the doctrines of waiver and forfeiture and also found the claims made by
       defendant are barred under the doctrine of res judicata.
¶ 28        Defendant’s affidavit and pro se brief merely claim the issues he raised in his petition
       should be taken as true. He asserts the adequacy of the exhibits to the petition without
       naming what the exhibits are or how they support it. Defendant’s pro se brief is so lacking
       with regard to issue III that in order to fully address it, we would have to scour the record and
       act as his advocate in search of support for his claims, which we are not required to do. See
       People v. Webber, 234 Ill. App. 3d 641, 644, 600 N.E.2d 68, 70 (1992). While defendant
       strives to disguise his arguments under the veil of due process, the right to effective
       assistance of counsel, the right to a fair trial, and the right to be free from cruel and unusual
       punishment, it is well settled that a postconviction petitioner is not entitled to relief under the
       Act by merely “rephrasing previously addressed issues in constitutional terms,” as waiver
       and res judicata bar these claims. (Internal quotation marks omitted.) People v. Flores, 153
       Ill. 2d 264, 277-78, 606 N.E.2d 1078, 1084-85 (1992). We reject defendant’s arguments
       raised in his third issue.

¶ 29                                                IV
¶ 30        The fourth issue raised by defendant is a violation of procedural due process due to the
       circuit court’s failure to hold a hearing and rule on defendant’s petition for contempt prior
       to conducting a hearing on the State’s motion to dismiss. We are unconvinced that
       defendant’s due process rights were violated in this regard.
¶ 31        In the instant case, defendant filed a petition seeking an order of contempt against the St.
       Clair County juvenile detention center and the East St. Louis police department for failing
       to respond to his subpoenas. Defendant received some documents from the detention center,
       but the police department was unable to comply with defendant’s request, specifically stating
       that even if the evidence which defendant requested in fact existed, it “was stored in a
       building which has been condemned due to structural and asbestos-related problems and that
       any property contained therein is no longer accessible.” The record reflects that the State did
       all it could to provide defendant with the documents he sought prior to filing its motion to
       dismiss, but neither the detention center nor the police department could provide defendant
       with any additional documents.
¶ 32        In its order dismissing defendant’s postconviction petition, the circuit court specifically
       stated “that defendant attached documents from the St. Clair County Juvenile Detention
       Center to his postconviction petition and rejects any claims that he was denied the necessary
       documents to present his claims.” Defendant has failed to convince us to the contrary. Thus,
       we find that defendant’s procedural due process rights were not violated as he claims.

¶ 33                                              V
¶ 34       The fifth issue raised by defendant includes additional claims of lack of reasonable
       assistance of counsel due to the circuit court’s failure to appoint new appellate counsel. We

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       are unconvinced.
¶ 35       It is well settled that a defendant does not have a constitutional right to the assistance of
       counsel during a postconviction proceeding. People v. Moore, 189 Ill. 2d 521, 541, 727
       N.E.2d 348, 358 (2000). However, in the case of an indigent defendant, the law does provide
       for the appointment of counsel. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). Because the right to
       counsel in a postconviction proceeding is derived from statute rather than the federal or state
       constitution, postconviction petitions are guaranteed only the level of assistance provided for
       in the Act. That assistance has been defined by our supreme court to mean a “reasonable”
       level of assistance. Flores, 153 Ill. 2d at 276, 606 N.E.2d at 1084.
¶ 36       In the instant case, second-stage counsel was appointed on November 26, 2008. On
       September 16, 2009, appointed counsel filed an amended postconviction petition on behalf
       of defendant. On October 28, 2009, defendant discharged appointed counsel and decided not
       to proceed on the amended postconviction petition filed by appointed counsel, but rather
       chose to proceed pro se. On April 12, 2010, defendant filed a pro se amended petition. It was
       this petition that was presented to the circuit court and dismissed. Accordingly, we have no
       way to judge appointed counsel’s representation and, thus, we find defendant’s arguments
       hypothetical.
¶ 37       A reviewing court should not engage in hearing abstract and hypothetical arguments.
       People v. Coupland, 387 Ill. App. 3d 774, 776-77, 901 N.E.2d 448, 452 (2008). Here,
       defendant basically argues that postconviction counsel would have provided unreasonable
       assistance, if defendant allowed him to provide such assistance. We need not consider this
       argument. We do, however, note that after reviewing the record as a whole, especially
       appointed counsel’s amended petition, the incidents leading up to defendant’s decision to
       proceed pro se, and his later request for new counsel, we are satisfied by the circuit court’s
       denial of new postconviction counsel and its decision to allow defendant to proceed pro se.

¶ 38                                             VI
¶ 39       The final issue raised by defendant is that the circuit court erred in denying his motion
       to relitigate his motion to suppress statements. Defendant insists a new suppression hearing
       is necessary because he did not receive a full and fair hearing during his original hearing due
       to prosecutorial misconduct, ineffective assistance of counsel, and perjury committed by the
       State’s witnesses, Tony Bennett, Delbert Marion, and James Newcombe. Defendant’s
       allegations in this regard mainly rehash arguments he previously raised under argument III.
¶ 40       In any event, the State’s motion to dismiss addressed this issue, and the trial court
       specifically stated in its amended order as follows:
           “The Court finds that defendant’s claim that the State presented perjured testimony is
           without merit. The law is clear that minor inconsistencies do not rise to the level of
           perjured testimony. People v. Tyner (1968) 40 Ill. 2d 1, 238 N.E.2d 377. Defendant has
           established no more than minor and understandable inconsistencies. The Court rejects
           this claim.”
       We agree with the circuit court that defendant has failed to establish that his constitutional
       rights were substantially violated in this regard.

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¶ 41                                    CONCLUSION
¶ 42       For the foregoing reasons, the judgment of the circuit court of St. Clair County
       dismissing defendant’s amended postconviction petition is affirmed in part. We vacate
       defendant’s sentence and remand for a new sentencing hearing in which the circuit court
       reconsiders defendant’s sentence of natural life in prison without the possibility of parole in
       accordance with the principles set forth by the United States Supreme Court in Miller.

¶ 43      Affirmed in part and vacated in part; cause remanded with directions.




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