                                    2019 IL App (1st) 153581
                                          No. 1-15-3581
                                    Opinion filed May 16, 2019
                                                                         Fourth Division

______________________________________________________________________________

                                    IN THE
                        APPELLATE COURT OF ILLINOIS
                           FIRST JUDICIAL DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,             ) Appeal from the
                                                 ) Circuit Court of
       Plaintiff-Appellee,                       ) Cook County.
                                                 )
    v.                                           ) No. 99 CR 25404 (01)
                                                 )
MELVIN HARVEY,                                   ) Honorable
                                                 ) Carol M. Howard,
       Defendant-Appellant.                      ) Judge, presiding.
______________________________________________________________________________

       PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.
       Justices Reyes and Burke concurred in the judgment and opinion.

                                             OPINION

¶1     Defendant, Melvin Harvey, is currently serving concurrent sentences of 52 and 30 years’

imprisonment imposed on his convictions for the September 13, 1999, first degree murder and

armed robbery of Michael Harris. Defendant was 16 years old at the time of the offense, and was

subject to an automatic transfer to adult court.

¶2     This appeal concerns defendant’s August 6, 2015, successive postconviction petition, in

which he argued that his concurrent 52- and 30-year sentences violated the United States and

Illinois Constitutions under Miller v. Alabama, 567 U.S. 460 (2012), Graham v. Florida, 560

U.S. 48 (2010), and People v. Davis, 2014 IL 115595, ¶ 14. The circuit court denied defendant

leave to file his successive postconviction petition on October 9, 2015, finding that defendant
No. 1-15-3581


failed to meet the prejudice prong of the cause and prejudice test, because Miller “applie[d] only

to mandatory life sentences.” (Emphasis in original).

¶3     In this court, defendant contends that the circuit court erred in denying him leave to file

his successive postconviction petition, because his 52-year sentence—to be served at 100%—

imposed on his conviction for a crime committed while he was a juvenile violates the Eighth

Amendment of the U.S. Constitution. Defendant contends that his 52-year sentence is a de facto

life sentence, triggering the protections of Miller and requiring a sentencing court to consider

defendant’s youth and attendant characteristics in fashioning a sentence. Defendant contends that

the circuit court did not consider such factors, and accordingly, this court should remand his case

for a new sentencing hearing. Finally, defendant contends that if this court remands this matter

for a new sentencing hearing, the new juvenile sentencing laws in 730 ILCS 5/5-4.5-105 (West

2016), outlining the procedures for sentencing hearings for individuals who committed offenses

when they were under age 18, should apply at the hearing.

¶4      The State responds that the circuit court properly denied defendant leave to file his

successive post-conviction petition, because his 52-year sentence complied with the eighth

amendment, and was not a de facto life sentence. It also contends that even if his sentence were

considered a de facto life sentence, defendant’s sentencing “complied with Miller” because the

trial court was “aware of defendant’s chronological age at the time of the offense” and it had

access to the presentence investigation report (PSI), which did not show evidence “of any

particular immaturity, impetuosity, or failure to appreciate risks or consequences.”

¶5     We note that this court previously stayed this case, without objection from either party,

because the singular issue in this case would be controlled by the supreme court’s forthcoming




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decision in People v. Buffer. The supreme court has since issued its decision in Buffer, 2019 IL

122327, and accordingly, this court lifted the stay for ruling on this case.

¶6      In Buffer, the supreme court reviewed the circuit court’s denial of the defendant’s

postconviction petition, in which the defendant argued that his 50-year prison sentence, imposed

for a crime he committed when he was 16 years old, violated the eighth amendment because it

was a de facto life sentence.

¶7      After reviewing the history of Miller and its progeny, the court in Buffer noted that to

prevail on such a claim, “a defendant sentenced for an offense committed while a juvenile must

show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or

de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in

imposing the sentence.” Id. ¶ 27 (citing Holman, 2017 IL 120655, ¶ 40; Reyes, 2016 IL 119271,

¶ 9).

¶8      The supreme court then considered where the line should be drawn at which a sentence

constitutes a de facto life sentence. The court ultimately concluded that “a prison sentence of 40

years or less imposed on a juvenile offender does not constitute a de facto life sentence in

violation of the eighth amendment,” and concomitantly, that a sentence greater than 40 years

does constitute a de facto life sentence. Id. ¶ 41. Accordingly, the court found that the

defendant’s 50-year sentence was a de facto life sentence. Id. ¶ 42.

¶9      The court in Buffer also concluded that the circuit court failed to consider the defendant’s

youth and its attendant characteristics in imposing that sentence. Id. While the court noted that

the circuit court stated that it “ ‘considered all of the relevant statutory requirements,’ ” including

the PSI and the defendant’s age, the record did not indicate that the court considered defendant’s




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youth and its attendant characteristics as required by Miller and its progeny. Id. ¶¶ 5, 46 (citing

Holman, 2017 IL 120655, ¶ 46).

¶ 10   Following our supreme court’s guidance in Buffer, we conclude that defendant’s 52-year

sentence in this case constitutes a de facto life sentence.

¶ 11   We also conclude that the circuit court failed to consider the defendant’s youth and its

attendant characteristics in imposing that sentence. As our supreme court has stated, a juvenile

defendant may be sentenced to life, or de facto life, imprisonment, but before doing so, the trial

court must

                “determine[] 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.” Holman, 2017 IL 120655, ¶ 46; see also Buffer, 2019 IL

                122327, ¶ 19.




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¶ 12   The State contends that the requirement to consider the defendant’s youth and its

attendant characteristics was satisfied by the trial court’s “aware[ness] of defendant’s

chronological age at the time of the offense” and its consideration of the PSI. Specifically, the

State appears to contend that the PSI included information from which the court could have

considered the above factors, however the State admits that the trial court did not discuss

defendant’s prospects for rehabilitation. See People v. Morris, 2017 IL App (1st) 141117, ¶ 32

(concluding that circuit court’s consideration of the PSI was not “the equivalent to a full

consideration of those special characteristics contained within the PSI report” particularly where

the court did not “weigh heavily defendant’s opportunity for rehabilitation”).

¶ 13   Following Buffer, we conclude that the court’s mere awareness of a defendant’s age and

consideration of a PSI does not provide evidence that the circuit court specifically considered

defendant’s youth and its attendant characteristics. Therefore, we must conclude that defendant’s

sentence violates the eighth amendment, and we vacate that sentence as unconstitutional. Buffer,

2019 IL 122327, ¶ 42.

¶ 14   In so holding, we also note that the proper remedy in such circumstances is to remand

this matter for a new sentencing hearing. See id. ¶¶ 44-47 (“Based on the particular issue raised

in this appeal and in the interests of judicial economy, the proper remedy is to vacate defendant’s

sentence and to remand for a new sentencing hearing.”). Further, defendant shall be entitled on

remand to be sentenced under the scheme prescribed by section 5-4.5-105 of the Unified Code of

Corrections (730 ILCS 5/5-4.5-105 (West 2016)). Buffer, 2019 IL 122327, ¶ 47.

¶ 15   Based on the foregoing, we reverse the judgment of the trial court, and remand the case

for further proceedings consistent with this opinion.

¶ 16   Reversed and remanded; mandate to issue instanter.



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