                                  2016 IL App (1st) 143025
                                        No. 1-14-3025
                               Opinion filed September 30, 2016

                                                                        FIFTH DIVISION

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                                       FIRST DISTRICT


     THE PEOPLE OF THE STATE OF                  )     Appeal from the Circuit Court
     ILLINOIS,                                   )     of Cook County.
                                                 )
          Plaintiff-Appellee,                    )
                                                 )
          v.                                     )     No. 03 CR 22273
                                                 )
     DARRON JACKSON,                             )     The Honorable
                                                 )     Noreen Valeria Love,
          Defendant-Appellant.                   )     Judge, presiding.



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




                                         OPINION


¶1              After a jury trial, defendant Darron Jackson, age 16 at the time of the

       offense, was convicted as an adult of the first degree murder of Kenneth Porter

       and of personally discharging a firearm that caused another's death. He was
     No. 1-14-3025

        subsequently sentenced to 50 years in the Illinois Department of Corrections

        (IDOC).

¶2             After his conviction was affirmed and his first postconviction petition

        was dismissed as frivolous and patently without merit, defendant filed a motion

        for leave to file a successive postconviction petition, arguing: (1) that a 50-year

        sentence for a minor violates the eighth amendment's prohibition against cruel

        and unusual punishment (U.S. Const., amend. VIII), 1 pursuant to recent

        decisions concerning minors by the United States Supreme Court, such as

        Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455 (2012); and (2) that the

        automatic transfer provision of Illinois' Juvenile Court Act of 1987 (705 ILCS

        405/5-130 (West 2002)) violates due process, the proportionate penalties clause

        of the Illinois Constitution (Ill. Const. 1970, art. I, § 11),2 and the eighth

        amendment (U.S. Const., amend. VIII).



           1
               The eighth amendment applies to the states through the fourteenth
     amendment. Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). The Illinois
     Supreme Court has held that "the Illinois proportionate penalties clause is co-
     extensive with the eighth amendment's cruel and unusual punishment clause."
     People v. Patterson, 2014 IL 115102, ¶ 106.
             2
               Although section 11 does not contain the phrase "proportionate penalties,"
     it is commonly referred to in our case law as "the proportionate penalties clause of
     the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11)." People v. Ligon,
     2016 IL 118023, ¶ 1. Section 11 states, in relevant part, that "[a]ll penalties shall
     be determined both according to the seriousness of the offense and with the
     objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I,
     § 11.
                                               2
     No. 1-14-3025

¶3           The trial court denied defendant leave to appeal, and it is this order which

       is at issue before us. For the following reasons, we affirm.

¶4                                  BACKGROUND

¶5           The State's evidence at trial showed that, on September 10, 2003, at

       10:30 a.m., defendant shot and killed Kenneth Porter as Porter was standing in

       the middle of an intersection at Madison Street and Fourth Avenue, in

       Maywood, Illinois. There are no issues raised on this appeal concerning the

       evidence at trial. This court has already discussed the evidence at trial in both

       our Rule 23 orders affirming his conviction on appeal (People v. Jackson, No.

       1-04-3656 (2007) (unpublished order pursuant to Supreme Court Rule 23)) and

       affirming the dismissal of his first postconviction petition (People v. Jackson,

       No. 1-08-1546 (2009) (unpublished order pursuant to Supreme Court Rule 23)).

       We incorporate these orders by reference, and we will not repeat here our prior

       discussion of the evidence at trial. The issues raised on appeal are purely legal

       issues concerning defendant's sentencing.

¶6           After a jury trial, defendant was convicted on September 2, 2004, of first

       degree murder. The State proceeded on a single charge of enhanced first degree

       murder which meant that they had to find, beyond a reasonable doubt, that

       defendant, while armed with a firearm, personally discharged that firearm that

       proximately caused the death of the victim.        The jury was so instructed

                                             3
     No. 1-14-3025

        accordingly and returned a verdict of guilty, and defendant was sentenced by

        the trial court on September 28, 2004, to 60 years with IDOC.

¶7             At the sentencing hearing on September 28, the assistant State's Attorney

        (ASA) observed that defendant was subject to a mandatory firearm

        enhancement, which provided that "25 years or up to a term of natural life shall

        be added to the term of imprisonment imposed by the court." 3 As a result, the

        minimum possible sentence was 45 years, and the maximum was natural life.

        The ASA asked for natural life. The trial court imposed a sentence of 60 years

        which the trial court noted would be served at 100% of the time. 4

¶8             On appeal, this court affirmed defendant's conviction but reduced his

        sentence from 60 to 50 years. Jackson, No. 1-04-3656 (2007) (unpublished

        order pursuant to Supreme Court Rule 23). A year after his direct appeal,
           3
              The firearm enhancement provision, which applied to defendant's sentence,
     stated in relevant part that "if, during the commission of the offense, the person
     personally discharged a firearm that proximately caused *** death to another
     person, 25 years or up to a term of natural life shall be added to the term of
     imprisonment imposed by the court." (Emphasis added.) 730 ILCS 5/5-8-
     1(a)(1)(d)(iii) (West 2002). However, the law was changed this year so that the
     enhancement is no longer mandatory for individuals under age 18, such as
     defendant. Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-
     105(b)); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (same).
            4
              The truth in sentencing statute, which applied to defendant's sentence,
     provided in relevant part that "a prisoner who is serving a term of imprisonment for
     first degree murder *** shall receive no good conduct credit and shall serve the
     entire sentence imposed by the court." (Emphasis added.) 730 ILCS 5/3-6-
     3(a)(2)(i) (West 2002). The quoted section reads exactly the same today,
     substituting only the word "sentence" for the words "good conduct." See Pub. Act
     99-642, § 560 (eff. July 28, 2016) (amending 730 ILCS 5/3-6-3).
                                              4
       No. 1-14-3025

          defendant retained counsel,5 who filed a postconviction petition on March 24,

          2008, and a further amended petition on April 11, 2008. On May 23, 2008, the

          trial court dismissed the amended postconviction petition at the first stage as

          frivolous and patently without merit, and this court affirmed the dismissal on

          appeal.    Jackson, No. 1-08-1546 (2009) (unpublished order pursuant to

          Supreme Court Rule 23).

¶9               On May 15, 2014, defendant filed a pro se motion for leave to file his

          first successive postconviction petition, arguing that, since his claims were

          based on recent changes in the law announced in Miller, 567 U.S. __, 132 S.Ct.

          2455, and related cases, he could not have raised these claims in his direct

          appeal or in his original postconviction petition which was filed in 2008.

¶ 10             In his pro se motion and accompanying petition, defendant argued, first,

          that his 50-year sentence was a de facto life sentence, because the sentence

          exceeded his life expectancy. 6 He argued that his sentence, which included no

             5
                  In the March 24, 2008, petition, counsel stated that he was retained less
       than one month before.
               6
                 In his petition, defendant argued that, based on statistics from the Center for
       Disease Control and Prevention, his life expectancy was 60 to 63.8 years. In his
       brief to this court, he stated: "The actual life expectancy for somebody born in
       1987 is 64.7 years, not 60 to 63.8 years, as Jackson wrote in his petition."
       Although this has no effect on today's decision, this court visited the website for
       the Center for Disease Control and Prevention, which contained an "expectation of
       life" table for the year 2011. A person born in 1987 would be 24 in the year 2011.
       According to the table which was divided into five-year increments, a black man,
       age 25 in 2011, could expect to live another 49 years, for a total life expectancy of
                                                   5
       No. 1-14-3025

          eligibility for parole, was, in effect, a life sentence without parole and thus a

          violation of the eighth amendment's prohibition of cruel and unusual

          punishment, as that term has been recently interpreted by the United States

          Supreme Court in Miller, 567 U.S. __, 132 S.Ct. at 2460 ("mandatory life

          without parole for those under the age 18 at the time of their crimes violates the

          Eighth Amendment's prohibition on 'cruel and unusual punishment' ").

          Defendant argued that, if mandatory life without parole for a juvenile does not

          serve any "penological" goals then neither does a de facto life sentence without

          parole. Miller, 567 U.S. __, 132 S.Ct. at 2465 ("the distinctive attributes of

          youth diminish the penological justifications for imposing the harshest

          sentences on juvenile offenders, even when they commit terrible crimes").

¶ 11            Defendant argued, second, that the automatic transfer provision of the

          Illinois Juvenile Court Act violates federal and state due process, the eighth

          amendment and the proportionality clause of the Illinois Constitution,

          particularly when combined with the firearm enhancement (730 ILCS 5/5-8-




       74 years. Centers for Disease Control and Prevention, National Vital Statistics
       Reports, Vol. 64, No. 11, at 3 (Sept. 22, 2015), available at http://
       www.cdc.gov/nchs/data/nvsr/nvsr64 _11.pdf. Seventy-four years would be 8 years
       after defendant's expected release age of 66 years old.
                                                6
       No. 1-14-3025

          1(a)(1)(d)(iii) (West 2002))7 and the truth in sentencing statutes (730 ILCS 5/3-

          6-3(a)(2)(i) (West 2002)). 8

¶ 12             On August 29, 2014, the trial court denied defendant leave to file a

          successive postconviction petition; and on October 23, 2014, this court allowed

          defendant's late notice of appeal.

¶ 13                                      ANALYSIS

¶ 14             On this appeal, defendant claims that the trial court erred in denying his

          motion for leave to file his first successive postconviction petition, because

          recent changes in the law prevented him from filing his claims earlier. For the

          following reasons, we affirm.

¶ 15                         I. Stages of a Postconviction Petition

¶ 16             Although the issue before us is the very preliminary question of whether

          defendant's petition can even be filed, we provide here a summary of the stages

          to show how the subsequent process sheds light on this preliminary step.

¶ 17             The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West

          2014)) provides a statutory remedy for criminal defendants who claim their


             7
               See footnote 3 for a description of the firearm enhancement provision,
       which applied to defendant's sentence (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002))
       and subsequent changes. Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730
       ILCS 5/5-4.5-105(b)); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (same).
             8
               See footnote 4 for a description of the truth in sentencing statute. 730 ILCS
       5/3-6-3(a)(2)(i) (West 2002).
                                                 7
       No. 1-14-3025

         constitutional rights were violated at trial. People v. Edwards, 2012 IL 111711,

         ¶ 21. The Act is not intended to be a substitute for an appeal; instead, it is a

         collateral proceeding which attacks a final judgment.        Edwards, 2012 IL

         111711, ¶ 21.

¶ 18           The Act provides for three stages of review by the trial court. People v.

         Domagala, 2013 IL 113688, ¶ 32. At the first stage, the trial court may

         summarily dismiss a petition that is frivolous or patently without merit. 725

         ILCS 5/122-2.1(a)(2) (West 2014); Domagala, 2013 IL 113688, ¶ 32.

¶ 19           However, for a successive petition to even be filed, the trial court must

         first determine whether the petition (1) states a colorable claim of actual

         innocence (Edwards, 2012 IL 111711, ¶ 28) or (2) establishes cause and

         prejudice (People v. Smith, 2014 IL 115946, ¶ 35). This standard is higher than

         the normal first-stage "frivolous or patently without merit" standard applied to

         initial petitions. Edwards, 2012 IL 111711, ¶¶ 25-29; Smith, 2014 IL 115946,

         ¶ 34 ("the cause-and-prejudice test for a successive petition involves a higher

         standard than the first-stage frivolous or patently without merit standard that is

         set forth in section 122-2.1(a)(2) of the Act").

¶ 20           Since a filed successive petition has already satisfied a higher standard,

         the first stage is rendered unnecessary and the successive petition is docketed

         directly for second-stage proceedings. See People v. Sanders, 2016 IL 118123,

                                                8
       No. 1-14-3025

         ¶¶ 25, 28 (with a successive petition, the initial issue before the trial court is

         whether it "should be docketed for second-stage proceedings"); People v.

         Wrice, 2012 IL 111860, ¶ 90 ("reversing the trial court's order denying leave to

         file his second successive postconviction petition and remand[ing] to the trial

         court for *** second-stage postconviction proceedings"); People v. Jackson,

         2015 IL App (3d) 130575, ¶ 14 ("When a defendant is granted leave to file a

         successive postconviction petition, the petition is effectively advanced to the

         second stage of postconviction proccedings."); People v. Almodovar, 2013 IL

         App (1st) 101476, ¶ 1 (reversing the trial court's denial of the defendant's

         motion for leave to file a successive petition and remanding for second-stage

         proceedings).

¶ 21           If a trial court permits a successive petition to be filed or does not dismiss

         an initial petition at the first stage, the petition then advances to the second

         stage, where counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4

         (West 2014); Domagala, 2013 IL 113688, ¶ 33; Wrice, 2012 IL 111860, ¶ 90

         (after reversing the trial court's denial of leave to file a successive petition, the

         supreme court remanded "for appointment of postconviction counsel and

         second-stage postconviction proceedings"). After counsel determines whether

         to amend the petition, the State may file either a motion to dismiss or an answer

         to the petition. 725 ILCS 5/122-5 (West 2012); Domagala, 2013 IL 113688,

                                                 9
       No. 1-14-3025

         ¶ 33. At the second stage, the trial court must determine "whether the petition

         and any accompanying documentation make a substantial showing of a

         constitutional violation." People v. Edwards, 197 Ill. 2d 239, 246 (2001).

¶ 22           "The second stage of postconviction review tests the legal sufficiency of

         the petition. Unless the petitioner's allegations are affirmatively refuted by the

         record, they are taken as true, and the question is whether those allegations

         establish or 'show' a constitutional violation. In other words, the 'substantial

         showing' of a constitutional violation that must be made at the second stage

         [citation] is a measure of the legal sufficiency of the petition's well-pled

         allegations of a constitutional violation, which if proven at an evidentiary

         hearing, would entitle petitioner to relief." (Emphasis in original.) Domagla,

         2013 IL 113688, ¶ 35.

¶ 23           Both the second stage and a motion for leave to file a successive petition

         require a review of "the petition and any accompanying documentation."

         Edwards, 197 Ill. 2d at 246 (second stage review); Edwards, 2012 IL 11171,

         ¶ 24 (motion for leave to file a successive petition). For the second stage to not

         be superfluous for a successive petition, it must be that the "substantial

         showing" required at the second stage is greater than the "probability" required

         for a successive petition to receive leave for filing. Smith, 2014 IL 115946, ¶ 29




                                               10
       No. 1-14-3025

         (expressing a desire not to "render the entire three-stage postconviction process

         superfluous").

¶ 24           If the defendant makes a "substantial showing" at the second stage, then

         the petition advances to a third-stage evidentiary hearing. Domagala, 2013 IL

         113688, ¶ 34. At a third-stage evidentiary hearing, the trial court acts as

         factfinder, determining witness credibility and the weight to be given particular

         testimony and evidence, and resolving any evidentiary conflicts. Domagala,

         2013 IL 113688, ¶ 34.       This third stage is the same for both initial and

         successive petitions. Cf. Smith, 2014 IL 115946, ¶ 29 ("The legislature clearly

         intended for further proceedings on successive postconviction petitions.").

¶ 25                                II. Successive Petition

¶ 26           Although our supreme court has made clear that the Act contemplates

         only one postconviction proceeding, "[n]evertheless, [the supreme] court has, in

         its case law provided two bases upon which the bar against successive

         proceedings will be relaxed" (Edwards, 2012 IL 111711, ¶ 22). Those two

         bases are: (1) cause and prejudice; and (2) actual innocence. Edwards, 2012 IL

         111711, ¶ 22. Defendant has alleged only the first on the instant appeal, so we

         discuss only this basis below.

¶ 27           Under the cause-and-prejudice test, a defendant must establish both: (1)

         cause for his or her failure to raise the claim earlier; and (2) prejudice stemming

                                               11
       No. 1-14-3025

         from his or her failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People

         v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)).

¶ 28           Our supreme court has held that "a defendant's pro se motion for leave to

         file a successive postconviction petition will meet the section 122-1(f) cause

         and prejudice requirement if the motion adequately alleges facts demonstrating

         cause and prejudice." Smith, 2014 IL 115946, ¶ 34. "[L]eave of court to file a

         successive postconviction petition should be denied when it is clear, from a

         review of the successive petition and the documentation submitted by the

         petitioner, that the claims alleged by the petitioner fail as a matter of law or

         where the successive petition with supporting documentation is insufficient to

         justify further proceedings." Smith, 2014 IL 115946, ¶ 35.

¶ 29                                III. Standard of Review

¶ 30           Next, we discuss the appropriate standard of review for defendant's claim

         of cause and prejudice.

¶ 31           In Smith, the issue was whether the Act prohibited the denial of leave

         when the pleadings of the petition made an " 'arguable' " showing of cause and

         prejudice. Smith, 2014 IL 115946, ¶ 25 (quoting the defendant's petition). The

         Smith court observed that the standard of review for "this issue of statutory

         construction" was de novo. Smith, 2014 IL 115946, ¶ 21. However, the Smith

         court did not explicitly state, after resolving this issue of statutory construction,

                                                12
       No. 1-14-3025

         whether the standard of review for a trial court's grant or denial of leave to file a

         successive petition was then also de novo.

¶ 32           Since cause-and-prejudice claims may fail either as a matter of law or

         due to an insufficiency of the petition and supporting documents, we conclude,

         as have other appellate courts, that a de novo standard of review also applies.

         People v. Diggins, 2015 IL App (3d) 130315, ¶ 7 (applying a de novo standard

         of review to the trial court's denial of the defendant's motion to file a successive

         petition alleging cause and prejudice, because this issue is "resolved on the

         pleadings" alone); People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 38

         (applying a de novo standard of review to the trial court's denial of the

         defendant's motion to file a successive petition alleging cause and prejudice).

         See also People v. Wrice, 2012 IL 111860, ¶ 50 (applying a de novo standard of

         review to the State's arguments concerning lack of prejudice to the defendant,

         since these "arguments raise purely legal issues").

¶ 33           When our review is limited to documentary materials, as it is here, then

         our review is generally de novo. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d

         147, 154 (2007) ("Where the circuit court does not hear testimony and bases its

         decision on documentary evidence, the rationale underlying a deferential

         standard of review is inapplicable and review is de novo."); Dowling v. Chicago

         Options Associates, Inc., 226 Ill. 2d 277, 285 (2007) (where the trial court "did

                                                13
       No. 1-14-3025

         not conduct an evidentiary hearing" or "make any findings of fact," and "relied

         on the parties' oral argument and the record," "we review the court's ruling on

         this issue de novo").

¶ 34           Thus, we will apply a de novo review to both of defendant's claims. De

         novo consideration means that we perform the same analysis that a trial judge

         would perform. In re N.H., 2016 IL App (1st) 152504, ¶ 50 (citing Khan v.

         BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011)).

¶ 35                                   IV. The Record

¶ 36           The next question is what we are permitted to review. In Smith, our

         supreme court held that: "leave of court to file a successive postconviction

         petition should be denied when it is clear, from a review of the successive

         petition and the documentation submitted by the petitioner, that the claims

         alleged by the petitioner fail as a matter of law or where the successive petition

         with supporting documentation is insufficient to justify further proceedings."

         (Emphases added.) Smith, 2014 IL 115946, ¶ 35.

¶ 37           Thus, we must certainly consider the pro se petition itself and any

         supporting documentation that defendant provided. Edwards, 2012 IL 111711,

         ¶ 24. However, the Smith court left open the question of whether we and the

         trial court may consider the underlying record. The Smith court stated: "The

         parties have not argued or briefed whether the trial court may consider the

                                               14
       No. 1-14-3025

          record in ruling on a petition brought under section 122-1(f) of the Act.

          Accordingly, we do not address that issue." Smith, 2014 IL 115946, ¶ 35 n.3.9

¶ 38             After making this observation, the Smith court then proceeded to discuss

          what happened at trial. Smith, 2014 IL 115946, ¶ 37. However, before

          discussing the events and statements at trial, the court stated that these facts

          were "undisputed." Smith, 2014 IL 115946, ¶ 37. Based on the prior footnote

          and the court's statement that these facts were undisputed, it is unclear whether

          these facts were in the petition and supporting documentation before the court.

¶ 39             As in Smith, the Edwards court relied primarily on the failings found on

          the face of the petition and supporting documentation when it affirmed the trial

          court's denial of leave. In Edwards, the supreme court found "no indication"

          that the defendant had tried to subpoena his alibi witnesses, who were both

          known to the defendant at the time of trial, and thus their affidavits did not

          qualify as "newly discovered" evidence. Edwards, 2012 IL 111711, ¶¶ 35-37.

          The supreme court stated that "there was no attempt to subpoena" and "no

          explanation as to why." Edwards, 2012 IL 111711, ¶ 37. If the petition had

          alleged an attempt and offered an explanation, then there would have been some

             9
              Section 122-2.1 provides that, "after the filing" of the petition, "the court
       may examine the court file of the proceeding in which the petitioner was
       convicted." 725 ILCS 5/122-2.1 (West 2014). However, in the instant appeal, we
       are considering a petition that has not yet been filed, which explains why the Smith
       court observed that this was an open issue.
                                                15
       No. 1-14-3025

         "indication." Edwards, 2012 IL 111711, ¶¶ 36-37. Thus, the failings found

         were apparent on the face of the petition itself.

¶ 40           In addition, the Edwards court found that the codefendant's affidavit did

         not raise a colorable claim of actual innocence when the defendant was

         convicted under a theory of accountability and the affidavit did "not assert that

         petitioner was not present when the shooting took place." (Emphasis in

         original.) Edwards, 2012 IL 111711, ¶¶ 38-39. Again, the failing found was

         apparent on the face of the documentation itself.

¶ 41           As of today, there are no published Illinois cases discussing Smith's

         footnote 3 (Smith, 2014 IL 115946, ¶ 35 n.3), except for one by the same author

         of this opinion raising the same issue. People v. Jones, 2016 IL App (1st)

         123371, ¶ 79.

¶ 42           Until our supreme court resolves this issue, we will rely primarily on the

         petition and its supporting documentation in deciding this preliminary question

         of whether the petition may even be filed. In addition, we will take judicial

         notice of our prior opinions and orders. Shotts, 2015 IL App (4th) 130695, ¶¶ 7,

         71. See also Village of Riverwoods v. BG Limited Partnership, 276 Ill. App. 3d

         720, 724 (1995) (a court may properly take judicial notice of publicly available

         records "where such notice will aid in the efficient disposition of a case" (cited

         with approval by Wackrow v. Niemi, 231 Ill. 2d 418, 421 n.1 (2008))); In re

                                                16
       No. 1-14-3025

         McDonald, 144 Ill. App. 3d 1082, 1084 (1986) (a court may take judicial notice

         of matters of record in other cases in the same court).

¶ 43           From the perspective of the orderly administration of justice, it makes

         sense to review primarily at this very preliminary stage the documents filed by

         defendant rather than the entire trial court record. As we explained in the prior

         section on the postconviction stages, the postconviction process provides other

         stages where a petition may be more substantially judged. Edwards, 197 Ill. 2d

         at 246 ("a substantial showing" is not required until the second stage). The

         Smith court observed: "From a practical standpoint, if a petitioner is required

         to establish cause and prejudice conclusively prior to being granted leave to file

         a successive petition, it may render the entire three-stage postconviction process

         superfluous." Smith, 2014 IL 115946, ¶ 29 ("The legislature clearly intended for

         further proceedings on successive petitions.").

¶ 44           Both Edwards and Smith discussed the amount of documentation which

         the defendant must submit at this preliminary stage. In Edwards, the supreme

         court stated: "Defendant not only has the burden to obtain leave of court, but

         also 'must submit enough in the way of documentation to allow a circuit court

         to make that determination.' " Edwards, 2012 IL 111711, ¶ 24 (quoting People

         v. Tidwell, 236 Ill. 2d 150, 161 (2010)). In Smith, the supreme court observed

         that "the legislature intended that the cause-and-prejudice determination be

                                               17
       No. 1-14-3025

         made on the pleadings prior to the first stage," that defendant must "allege[]

         facts demonstrating cause and prejudice," and that he must " 'submit enough in

         the way of documentation to allow a circuit court to make that determination.' "

         Smith, 2014 IL 115946, ¶¶ 33-35 (quoting Tidwell, 236 Ill. 2d at 161).

¶ 45           Thus, we will now review defendant's two claims primarily in light of the

         documentation he submitted, as well as our prior opinions and orders.

¶ 46                                      V. Cause

¶ 47           As we noted above, under the cause-and-prejudice test, a defendant must

         first establish cause for his or her failure to raise the claim earlier. Edwards,

         2012 IL 111711, ¶ 22 (citing People v. Pitsonbarger, 205 Ill. 2d 444, 459

         (2002)). Defendant argues that he established cause because he could not have

         raised claims based on Miller in his original 2008 petition, when Miller was not

         even decided until 2012. See also People v. Nieto, 2016 IL App (1st) 121604,

         ¶ 39 ("Illinois procedural rules regarding forfeiture cannot be applied to

         juvenile defendants raising claims under Miller"); People v. Warren, 2016 IL

         App (1st) 090884-C, ¶ 48 (defendant was not barred from raising his challenge

         on appeal from the denial of leave to file a successive petition, where "Miller

         was not available for earlier postconviction proceedings"); People v. Sanders,

         2016 IL App (1st) 121732-B, ¶ 19 (Miller "changed the law and give



                                              18
       No. 1-14-3025

         postconviction petitioners cause for failing to raise the issue in proceedings that

         preceded" it).

¶ 48           In addition, in 2014, the Illinois Supreme Court held in People v. Davis,

         2014 IL 115595, ¶¶ 28, 42, both that Miller applied retroactively and that

         "Miller's new substantive rule constitutes 'cause' because it was not available

         earlier." Similarly, the United States Supreme Court held two years later that

         Miller applied retroactively. Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct.

         718, 735-36 (2016) (after Miller, juveniles who received mandatory or

         automatic life without parole "must be given the opportunity to show their

         crime did not reflect irreparable corruption" as opposed to transient

         immaturity).

¶ 49           On appeal, the State does not argue that defendant failed to establish

         cause. Instead, the State argues that "irrespective of whether or not defendant

         can show the requisite 'cause,' he cannot establish any 'prejudice' " because (1)

         Miller does not apply to defendant's sentence of a certain number of years; and

         (2) Illinois courts have previously rejected other constitutional challenges to the

         automatic transfer provision.

¶ 50           Thus, we will proceed to consider next whether defendant has established

         prejudice, considering each of his claims separately: his claim that his 50-year

         sentence violates the eighth amendment; and his claim that the automatic

                                               19
       No. 1-14-3025

          transfer provision violates due process, the proportionate penalties clause and

          the eighth amendment.

¶ 51                                  VI. 50-Year Sentence

¶ 52              Defendant argues that his 50-year sentence violates the eighth

          amendment's ban on cruel and unusual punishments, particularly in light of the

          fact that our legislature recently changed the law governing firearm

          enhancements. When defendant was sentenced, a firearm enhancement was

          mandatory. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002). However, effective

          this year, the legislature specifically added a provision, so that firearm

          enhancements are no longer mandatory for juvenile defendants. Pub. Act 99-69,

          § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(b)); Pub. Act 99-258, §

          15 (eff. Jan. 1, 2016) (same).

¶ 53              Effective this year, our legislature made significant changes to the law

          governing the sentencing of juvenile defendants. First, the legislature raised the

          age under the automatic transfer statute from 15 to 16 years old, so that 15-year-

          olds are no longer subject to automatic transfer to adult court for first-degree

          murder and other crimes. Pub. Act 99-258, § 5 (eff. Jan. 1, 2016) (amending

          705 ILCS 405/5-130(1)(a) (West 2014)).10 Second, the legislature eliminated

          the mandatory firearm enhancement for juvenile defendants. Pub. Act 99-69, §
             10
                This change has no effect on the issues at bar because defendant was 16,
       not 15, years old at the time of the offense.
                                                20
       No. 1-14-3025

          10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(b)); Pub. Act 99-258, § 15

          (eff. Jan. 1, 2016) (same). The enhancement is now discretionary for juveniles.

          Third, the legislature eliminated the mandatory life sentences which had been

          previously required for juveniles who had murdered individuals in certain

          categories, such as police officers and emergency medical technicians. Pub. Act

          99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(c)); Pub. Act 99-

          258, § 15 (eff. Jan. 1, 2016) (same). Instead of the mandatory life sentence

          previously required for this type of first-degree murder, the legislature required

          the imposition of "not less than 40 years of imprisonment." Pub. Act 99-69, §

          10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(c)); Pub. Act 99-258, § 15

          (eff. Jan. 1, 2016) (same).

¶ 54              When defendant was sentenced, he was subject to a sentencing range

          with a minimum of 45 years and a maximum of natural life. The trial court

          sentenced him within that range, to a sentence of 60 years, which the appellate

          court reduced to 50 years. Today, for the same offense, defendant would have

          faced a sentencing range with a minimum of 20 years (730 ILCS 5/5-4.5-20(a)

          (West 2014)) and a maximum of natural life. 11


             11
                The maximum sentence for first-degree murder is typically 60 years. 730
       ILCS 5/5-4.5-20(a) (West 2014). However, in its discretion, the trial court may
       impose on a juvenile a firearm enhancement of 25 years or up to a term of natural
       life. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West Supp. 2015) ("if, during the commission
       of the offense, the person personally discharged a firearm that proximately caused
                                                21
       No. 1-14-3025

¶ 55             Defendant's 50-year sentence is within today's permissible sentencing

          range of 20 years to natural life. Thus, defendant's sentence is not excessive

          when measured against the standard of today's statutes, which were newly

          revised by our legislature in light of the recent changes in case and statutory law

          which defendant now argues on appeal.

¶ 56             If our supreme court12 believes that our legislature's changes did not go

          far enough to comply with recent United States Supreme Court law or that the

          changes should apply retroactively to defendant despite an express legislative

          statement to the contrary, 13 that is for our highest court to decide. The decision

          to resentence every similarly situated defendant should not be made at the

       *** death *** 25 years or up to a term of natural life shall be added to the term of
       imprisonment"); 730 ILCS 5/5-4.5-105(b) (West Supp. 2015) (the trial court may,
       in its discretion, impose or decline to impose on a juvenile any otherwise
       applicable firearm enhancement).
               12
                  Compare People v. Wilson, 2016 IL App (1st) 141500, ¶ 35 (observing
       that the task of drawing a different line is up to "the Illinois or United States
       Supreme Court" not the appellate court, in a case where a 17-year-old was
       sentenced to 31 years in prison) with People v. Nieto, 2016 IL App (1st) 121604,
       ¶¶ 4, 12, 14 n.1, 49 (remanding for resentencing, where a 17-year-old was
       sentenced to 78 years in prison with an expected release age of 94 and "where the
       record affirmatively indicates that the trial court has deviated from the principles"
       governing the sentencing of juveniles).
               13
                  The legislature's 2016 changes state specifically that they apply only "[o]n
       or after the effective date of this amendatory Act of the 99th General Assembly,
       when a person commits an offense and the person is under 18 years of age at the
       time of the commission of the offense." Pub. Act. 99-69, § 10 (eff. Jan. 1, 2016)
       (adding 730 ILCS 5/5-4.5-105(a)); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016)
       (same). See also People v. Wilson, 2016 IL App (1st) 141500, ¶ 16 (interpreting
       this provision, this court held that, "based on its plain language, the legislature
       indicated a prospective application of the statute").
                                                 22
       No. 1-14-3025

          appellate court level. A finding of prejudice on the ground that defendant's 50-

          year sentence violated the eighth amendment would both call into question the

          new sentencing scheme that our legislature just adopted in response to Miller,

          and would prompt a call to resentence every juvenile serving a sentence of 50

          years or more.

¶ 57              If an Illinois court was going to hold that a de facto life sentence qualifies

          for consideration under Miller, then we would need a consistent and uniform

          policy on what constitutes a de facto life sentence. Is it simply a certain age

          upon release? If so, is it age 65, as defendant seems to argue for in his appellate

          brief, or 90? 14 Should the age vary by ethnicity, race or gender? If we are

          going to consider more than age, what societal factors or health concerns should

          impact our assessment of a de facto life sentence. These are policy

          considerations that are better handled in a different forum.

¶ 58              In light of our supreme court's holding in Davis that Miller permits a

          juvenile sentence of natural life without parole so long as the sentence is

             14
                Compare Nieto, 2016 IL App (1st) 121604, ¶¶ 14 n.1, 49 (remanding for
       resentencing where the juvenile's expected release age was 94) and People v.
       Sanders, 2016 IL App (1st) 121732-B, ¶¶ 1-2 (reversing the denial of leave to file a
       successive petition where a 17-year-old received a 100-year sentence), with
       Wilson, 2016 IL App (1st) 141500, ¶ 35 (rejecting a Miller challenge where a 17-
       year-old received a 31-year sentence). See also People v. Reyes, 2016 IL 119271,
       ¶¶ 10, 12 (per curiam) (remanding for resentencing where the juvenile's expected
       release age was 105, while observing that a 32-year sentence is "not a de facto life
       sentence" for a 16-year-old).
                                                  23
       No. 1-14-3025

          discretionary (Davis, 2014 IL 115595, ¶ 43),15 this court cannot find prejudice

          based on the ground that defendant's 50-year sentence is excessive or in

          violation of the eighth amendment's cruel and unusual penalties clause. See

          also Davis, 2014 IL 115595, ¶ 32 ("We hold that Miller did not render the

          statutory    scheme     under    which        defendant   was   sentenced   facially

          unconstitutional.") As our supreme court has observed, "leave of court to file a

          successive postconviction petition should be denied when it is clear, from a

          review of the successive petition and the documentation submitted by the

          petitioner, that the claims alleged by the petitioner fail as a matter of law."

          Smith, 2014 IL 115946, ¶ 35.

¶ 59                             VII. Automatic Juvenile Transfer

¶ 60              Defendant also claims that the automatic transfer provision of Illinois'

          Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2002)) violates due

          process, the proportionate penalties clause of the Illinois Constitution (Ill.

          Const. 1970, art. I, § 11), and the eighth amendment (U.S. Const., amend. VIII).

¶ 61              The automatic juvenile transfer provision provides, in relevant part, that:




             15
                See also Montgomery, 577 U.S. at __, 136 S.Ct. at 736 (holding that the
       Miller court did not bar life without parole, although it concluded that "the
       sentence of life without parole is disproportionate for the vast majority of juvenile
       offenders" and that juveniles "must be given the opportunity to show their crime
       did not reflect irreparable corruption").
                                                   24
       No. 1-14-3025

                "(1)(a) The definition of delinquent minor under Section 5-120 of this

                Article shall not apply to any minor who at the time of an offense was at

                least 16 years of age and who is charged with: (i) first degree murder [.]

                ****

                These charges and all other charges arising out of the same incident shall

                be prosecuted under the criminal laws of this State." 705 ILCS 405/5-

                130 (West Supp. 2015).

¶ 62        At the time of the offense in question, the provision provided, in relevant

         part, that:

                       "(1)(a) The definition of delinquent minor under Section 5-120 of this

                Article shall not apply to any minor who at the time of an offense was at

                least 15 years of age and who is charged with first degree murder[.]

                ****

                These charges and all other charges arising out of the same incident shall

                be prosecuted under the criminal laws of this State." 705 ILCS 405/5-

                130 (West 2002).

¶ 63            The key difference between the two provisions is that the former

         provision applied to 15-year-old minors, whereas the current provision applies

         only to minors who are 16 years or older. However, as we observed above, this



                                                  25
       No. 1-14-3025

          difference has no effect on our case, because the minor in the instant case was

          16 years old at the time of the offense.

¶ 64              On appeal, defendant argues that we should find that the Illinois Supreme

          Court's decision in People v. Patterson, 2014 IL 115102, was "incorrectly

          decided." In Patterson, our supreme court rejected due process challenges to

          the automatic transfer statute, as well as challenges made under the eighth

          amendment (U.S. Const., amend. VIII) and the Illinois proportionate penalties

          clause (Ill. Const. 1970, art. I, § 11). Patterson, 2014 IL 115102, ¶¶ 35, 89, 98,

          100, 106. We decline defendant's invitation to find that Patterson was wrongly

          decided. Wilson, 2016 IL App (1st) 141500, ¶ 29 (applying Patterson, after the

          2016 United States Supreme Court decision in Montgomery, 577 U.S. __, 136

          S.Ct. 718).16

¶ 65                                     CONCLUSION

                  On this appeal, defendant challenged the trial court's denial of his motion

          for leave to file a successive petition. His motion and petition had argued: (1)

          that a 50-year sentence for a minor violates the eighth amendment's prohibition

          against cruel and unusual punishment (U.S. Const., amend. VIII), pursuant to

             16
               In his reply brief, defendant states that he "recognizes that this Court is
       bound by Patterson, but maintains, given the continuing evolving law in this area
       and in order to preserve this issue for further appeals, that Patterson was wrongly
       decided." Similarly, this court respects the need to preserve the issue for further
       appeal, while remaining bound to apply Patterson.
                                                 26
       No. 1-14-3025

         recent decisions concerning minors by the United States Supreme Court; and

         (2) that the automatic transfer provision of Illinois' Juvenile Court Act of 1987

         (705 ILCS 405/5-130 (West 2002)) violates due process, the proportionate

         penalties clause of the Illinois constitution (Ill. Const. 1970, art. I, § 11), and the

         eighth amendment (U.S. Const., amend. VIII).

¶ 66           For the foregoing reasons, we do not find persuasive defendant's

         arguments that he established the prejudice needed to file a successive petition.

         As a result, we affirm the trial court's denial of leave.

¶ 67           Affirmed.




                                                 27
