                                      2017 IL 120655



                                         IN THE
                                SUPREME COURT
                                            OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 120655)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                         RICHARD HOLMAN, Appellant.


                             Opinion filed September 21, 2017.



        JUSTICE THEIS delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and
     Burke concurred in the judgment and opinion.



                                         OPINION

¶1       The central issue in this case is whether defendant Richard Holman, who
     received a sentence of life without parole for a murder that he committed at age 17,
     is entitled to a new sentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460,
     132 S. Ct. 2455 (2012). We hold that the defendant’s original sentencing hearing
     complied with Miller and affirm the Madison County circuit court’s decision to
     deny his motion for leave to file a successive postconviction petition.
¶2                                            BACKGROUND

¶3       On July 13, 1979, Rodney Sepmeyer returned from work to the rural house near
     downstate Maryville where he lived with his 83-year-old grandmother, Esther
     Sepmeyer. Inside, Rodney found Esther’s dead body kneeling and slumped forward
     over the side of a bed in a bedroom that they shared. She had been shot in the cheek
     just below the right eye, and a pool of blood stained the sheets. The house was
     ransacked, and a television, a turntable, a radio, and a lawnmower were missing.
     Rodney’s .22-caliber rifle also was missing, and the metal cabinet in the bedroom
     where he stored the gun was open.

¶4       Rodney summoned his father, Lenard, who lived nearby. Lenard called the
     police. A crime scene technician found a spent .22-caliber shell casing at the base
     of the bedroom heating stove, as well as the empty rifle box and an empty box of
     rounds on the kitchen floor. The technician lifted latent fingerprints from the handle
     of a small mirror left on the bedroom floor and from the door of the metal cabinet.
     The coroner’s physician later recovered a .22-caliber bullet from Esther’s neck.
     According to the physician, Esther was likely knocked unconscious after being
     shot, but she may have lived for as long as a half-hour. After the autopsy, the
     investigation of Esther’s murder stalled.

¶5       Several weeks later, the defendant and Girvies Davis were arrested and
     incarcerated in the St. Clair County jail for an unrelated offense. While there, the
     defendant and Davis both made inculpatory statements about their collaboration in
     a crime spree through Madison and St. Clair Counties. In his own handwriting,
     Davis listed 11 homicides, shootings, and robberies, which included Esther’s
     murder. The defendant told police officers about eight homicides, all of which
     appeared on Davis’s list, in addition to Esther’s murder. Regarding that offense,
     both the defendant and Davis admitted that they took items from her house, but
     each accused the other of being the shooter. 1 They were charged by information
     with three counts of first degree murder. The police obtained a warrant and


         1
           The defendant’s statement was reduced to writing several months after it was made by the
     police officer who interrogated him. That written statement does not appear in the record, but the
     officer testified at trial as to its contents. Davis’s statement was reduced to writing by another police
     officer the day it was made. That written statement does appear in the record, as well as in People v.
     Davis, 97 Ill. 2d 1, 8-9 (1983).




                                                      -2-
     searched Davis’s residence, where they found the radio and the lawnmower. 2 The
     State’s fingerprint expert later matched the defendant’s left index fingerprint to the
     fingerprints lifted from the mirror and the cabinet.

¶6       The defendant and Davis were tried together. On March 16, 1981, a jury found
     the defendant guilty of first degree murder. 3 Because he was five weeks from his
     eighteenth birthday at the time of the offense, he was not eligible for the death
     penalty. See Ill. Rev. Stat. 1979, ch. 38, ¶ 9-1(b). The multiple-murder sentencing
     statute in effect at that time provided that the court “may sentence the defendant to
     a term of natural life imprisonment” if any of the aggravating factors in section
     9-1(b) of the Criminal Code of 1961 were present. Ill. Rev. Stat. 1979, ch. 38,
     ¶ 1005-8-1(a)(1). One of those aggravating factors was the prior murders of two or
     more persons. Ill. Rev. Stat. 1979, ch. 38, ¶ 9-1(b)(3). The case proceeded to
     sentencing.

¶7       The Madison County circuit court’s probation and court services department
     prepared a presentence investigation report (PSI). 4 The PSI included the
     defendant’s criminal history. At age 14, he was adjudicated delinquent for burglary
     and placed on two years’ probation. At age 15, he was adjudicated delinquent for
     three counts of criminal damage to property and committed to the Department of
     Corrections’ juvenile division. The defendant was paroled and then arrested for
     burglary three months later. His parole was revoked, and he was returned to the
     Department of Corrections. The defendant was paroled again at age 17. While he
     was free, Esther was murdered. The PSI contained the defendant’s statement to the
     probation officer about that offense:

         “I fenced the stolen stuff but I didn’t commit the home invasion. I wasn’t
         present when the murder took place. Girvies Davis made a statement indicating
         2
            Davis’s statement explained why the police never recovered the television or the rifle.
     According to Davis, he and the defendant sold the television at a bar and then “drove halfway across
     [the pay bridge] and threw the 22 rifle into the river” on the night of Esther’s murder. The missing
     turntable was never mentioned or found.
          3
           Davis was also found guilty. He received the death penalty, but this court vacated that sentence
     and remanded for a new sentencing hearing. Davis, 97 Ill. 2d at 29. Earlier, Davis received the death
     penalty for the first degree murder of Charles Biebel. See People v. Davis, 95 Ill. 2d 1 (1983).
     Evidence at that trial indicated that the defendant was the “actual triggerman” responsible for
     Biebel’s death. Davis, 97 Ill. 2d at 24.
          4
           The first page of the PSI erroneously stated the defendant’s birth date as August 20, 1960, but
     later stated it correctly as August 20, 1961.




                                                     -3-
          my name. That gave police enough grounds to question me. I refused to talk
          because I didn’t know anything.”

¶8         The PSI stated that the defendant’s father died when the defendant was around
       7 years old, and his stepfather died when he was around 16. The defendant
       reportedly had “a close, loving relationship” with his mother and six siblings. He
       was never married but reportedly had two young children. The defendant was
       healthy and suffered from no known physical disabilities. According to the PSI, the
       defendant had between seven and nine years of formal education, but he was
       “borderline retarded.” The probation officer concluded:

             “The defendant expressed no guilt for this offense or remorse for the victim,
          who was an 82 year old woman who posed no physical threat to him.

              The defendant’s history of senseless criminal acts of mortal violence toward
          others and lack of remorse for his victims indicates to this officer that the
          defendant has no predilection for rehabilitation.”

¶9         Attached to the PSI were three psychological reports—two from a psychiatrist,
       Dr. Syed Raza, and one from a psychologist for the circuit court’s probation
       department, Cheryl Prost. Dr. Raza’s initial report described his interview with the
       defendant. The defendant offered an alternate version of the events on the date of
       Esther’s murder. According to the defendant, he drove Davis’s wife to work, drank
       beer at a bar with Davis, took a nap at home, picked up a girl, visited another bar
       and a “dice house,” and ended up at home. He woke the next morning and heard
       police officers speaking to his mother. The defendant was taken to the St. Clair
       County jail, where a detective interrogated him. He asserted that he did not
       understand most of the questions, and the detective “seemed mad at him and hit
       him.” The defendant then was informed that he was charged with murder. Even
       though the defendant attended his own trial, he insisted that he still did not know
       who had been murdered or how the crime occurred: “My lawyer won’t tell me
       either. They say I am stupid.”

¶ 10       Dr. Raza noted that the defendant mentioned an incident prior to 1977 when he
       fell from a two-story building and hit his head. Afterwards, he was seen by a
       psychiatrist in Rockford. The defendant did not believe that he had a drinking
       problem. He had used marijuana for almost a year before his arrest. Dr. Raza found




                                              -4-
       that the defendant’s attitude was “a mixture of extreme apprehension with a sense
       of hopelessness, some depression and maybe a touch of manipulativeness.” The
       interview was difficult because the defendant’s eye contact was extremely poor and
       his answers were very vague. Dr. Raza detected no “thought disturbance” and
       tentatively diagnosed the defendant with “borderline or dull normal intelligence,
       acute reactive anxiety and some depression,” pending further evaluation and
       testing.

¶ 11        Prost’s report described her interview with and tests of the defendant. The
       defendant again mentioned his childhood fall and stated that, since then, he had had
       a severe headache “like dynamite ready to explode,” which he treated with aspirin
       every day. Contrary to the PSI, Prost reported that the defendant stated that he was
       in seventh grade remedial classes before dropping out of school. On an intelligence
       test, the defendant scored in the borderline or mildly retarded range. Prost
       attributed some of his performance to “neurological impairment.” Other tests
       confirmed that and indicated a high probability of organic brain damage. Prost
       recommended a neurological evaluation.

¶ 12        After reviewing Prost’s report, Dr. Raza made an addendum to his initial report.
       Dr. Raza stated that he had reviewed the medical records of the defendant from the
       Warren G. Murray Children’s Home in Centralia, where the defendant lived for
       two months in 1976. The records showed that the defendant received a full physical
       examination, which revealed no deficits. He was diagnosed as mildly mentally
       retarded. According to Dr. Raza, therapists at the home stated that the defendant “is
       at times not aware of his surroundings and is easily led into doing ‘bad deeds,’ ”
       due to his lack of confidence and high need for approval from more intelligent
       peers. Dr. Raza observed that the defendant’s intelligence test results improved
       between his time at the children’s home and his interview with Prost: “This
       improvement can be explained by growing up in chronological age and maturation
       process of his central nervous system.” The defendant’s verbal intelligence
       indicated that he does have capacity for making a “socially appropriate judgment.”
       Dr. Raza opined, “Taking all these factors into consideration, it is my opinion that I
       do not see him as severely handicapped in terms of intellectual ability as to interfere
       with his ability to see right from wrong.”




                                                -5-
¶ 13       At the sentencing hearing, the State presented one witness, a former East
       St. Louis homicide section police officer. The officer stated that he investigated the
       murder of Frank Cash and the attempted murder of John Ostman and that he
       testified in the defendant’s trial for those offenses. The officer also stated that he
       investigated the murder of John Oertel and that he testified in the defendant’s trial
       for that offense. Oertel was killed roughly two months before Esther, while the
       defendant was still 17 years old. Cash was killed a month after Esther, after the
       defendant had turned 18. The State introduced certified copies of the defendant’s
       convictions in both cases. In the former he received concurrent 35- and 25-year
       sentences. In the latter he received a 40-year sentence.

¶ 14       Before closing arguments, the defendant’s attorney told the court that the
       defendant did not want to offer any mitigating evidence and that the defendant’s
       mother did not want to testify on his behalf. Consequently, the defendant’s attorney
       conceded, “I have no evidence to present at this time” and declined the trial court’s
       invitation to make any additions, corrections, or modifications to the PSI. In
       closing, the prosecutor highlighted the defendant’s criminal history and the fact
       that he was on parole when Esther was murdered. According to the prosecutor,
       Esther was old and feeble and posed no threat to the defendant. The prosecutor
       noted that the defendant still denied any involvement in the murder, despite his
       fingerprints at the scene. The prosecutor added:

              “I believe more than about any other Defendant that I have seen come
          through here Mr. Holman deserves to be removed from society for the rest of
          his natural life. It’s only an accident of birth that he did not qualify for the death
          penalty, having been too young when these offenses were committed to have
          qualified. Not being able to seek the death penalty on Mr. Holman, I believe
          that we have to seek the next best thing ***. *** I believe that the life sentence
          here is necessary to deter others from going out on similar crime sprees ***.”

¶ 15       The defendant’s attorney argued that the question before the court was whether
       the court “should assess natural life to this very young man.” The defendant’s
       attorney asked the court to consider rehabilitation as a goal and argued that
       isolation in the prison system militates against that goal. Finally, the defendant’s
       attorney pleaded with the trial court to consider “some other alternative than that
       requested by the State and to give this young man an opportunity.”




                                                -6-
¶ 16       The trial court offered the defendant an opportunity to make a statement. The
       defendant said:

              “Your Honor, [the prosecutor] made the statement that I was convicted of
          several—three counts of Murder before. That I have been convicted as of what
          they say as accessory of the Murder, of knowing this Murder have taken place.
          I was never convicted of no Murder. And that is my statement.”

¶ 17      Then the trial court spoke:

              “In this sentence the Court has considered the factors enumerated in the
          Criminal Code as factors in Mitigation and factors in Aggravation. The Court
          does not find any factors in Mitigation. There are many factors in Aggravation.
          The Court has considered the evidence presented at the trial in this cause. The
          Court has considered the presentence investigation. The Court has considered
          the evidence presented at this hearing today and the arguments of counsel. And
          the Court believes that this Defendant cannot be rehabilitated, and that it is
          important that society be protected from this Defendant.

             It is therefore the sentence of this Court and you are hereby sentenced, Mr.
          Holman, to the Department of Corrections for the rest of your natural life.”

¶ 18      The defendant appealed his conviction but did not challenge his sentence. The
       appellate court affirmed the conviction. People v. Holman, 115 Ill. App. 3d 60
       (1983).

¶ 19       In 2001, the defendant filed two pro se postconviction petitions. Both petitions
       were dismissed, and the defendant’s appeals from those rulings were also
       dismissed. In 2009, the defendant filed a pro se “petition for relief from void
       judgment” under section 2-1401 of the Code of Civil Procedure. See 735 ILCS
       5/2-1401 (West 2010). That petition was denied, and the appellate court affirmed.
       People v. Holman, 2011 IL App (5th) 090678-U.

¶ 20       In 2010, the defendant filed a pro se petition for leave to file a successive
       postconviction petition, the pleading that began the case before us. The defendant
       raised several claims; his final claim purported to assert his actual innocence. That
       petition was denied. On appeal, the defendant abandoned his earlier claims and
       instead argued that his life sentence was unconstitutional under Roper v. Simmons,




                                               -7-
       543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and particularly
       Miller. The appellate court rejected that argument because the defendant had not
       raised it before the trial court. People v. Holman, 2012 IL App (5th) 100587-U,
       ¶ 18. The appellate court further noted that the defendant’s sentence was not
       unconstitutional under Miller because the defendant here was “afforded a
       ‘sentencing hearing where natural life imprisonment [was] not the only available
       sentence.’ ” Id. ¶ 19 (quoting People v. Morfin, 2012 IL App (1st) 103568, ¶ 59).
       The defendant appealed.

¶ 21        While the defendant’s petition for leave to appeal was pending before us, we
       decided People v. Davis, 2014 IL 115595, which held that Miller announced a new
       substantive rule of constitutional law and that rule applied retroactively.
       Consequently, we denied the defendant’s petition but vacated the appellate court’s
       initial decision in this case and remanded so that court could consider whether, in
       light of Davis, a different result was warranted. People v. Holman, No. 115597
       (Jan. 28, 2015) (supervisory order).

¶ 22       On remand, the appellate court reached the merits of the defendant’s Miller
       claim. 2016 IL App (5th) 100587-B. The appellate court recognized that Miller
       and, more recently, Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016),
       require trial courts to consider youth and its attendant characteristics before
       imposing life sentences on juveniles. 2016 IL App (5th) 100587-B, ¶¶ 35-37.
       Because the trial court in this case did so, the defendant’s sentence was
       constitutionally permissible. Id. ¶ 46. The appellate court rejected the defendant’s
       alternative argument that Miller should be extended to create a categorical ban on
       juvenile life sentences. Id. ¶ 52.

¶ 23       This court allowed the defendant’s petition for leave to appeal. Ill. S. Ct. R.
       315(a) (eff. Mar. 15, 2016). We also allowed the Children & Family Justice Center
       of the Bluhm Legal Clinic at Northwestern University School of Law to file an
       amicus curiae brief in support of the defendant. See Ill. S. Ct. R. 345 (eff. Sept. 20,
       2010). On the legal issues before us, our review is de novo. People v. Thompson,
       2015 IL 118151, ¶ 25.




                                                -8-
¶ 24                                       ANALYSIS

¶ 25       The Post-Conviction Hearing Act offers a procedural device through which a
       criminal defendant may assert that “in the proceedings which resulted in his or her
       conviction there was a substantial denial of his or her rights under the Constitution
       of the United States or of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1)
       (West 2010). Proceedings on a postconviction petition are collateral to proceedings
       in a direct appeal and focus on constitutional claims that have not and could not
       have been previously adjudicated. See People v. Towns, 182 Ill. 2d 491, 502
       (1998). Accordingly, issues that were raised and decided on direct appeal are
       barred from consideration by the doctrine of res judicata; issues that could have
       been raised, but were not, are forfeited. See People v. Ortiz, 235 Ill. 2d 319, 328
       (2009). The Act itself contemplates the filing of a single petition: “Any claim of
       substantial denial of constitutional rights not raised in the original or an amended
       petition is waived.” 725 ILCS 5/122-3 (West 2010). Because successive petitions
       impede the finality of criminal litigation, that statutory bar will be relaxed only
       “ ‘when fundamental fairness so requires.’ ” People v. Coleman, 2013 IL 113307,
       ¶ 81 (quoting People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002)).

¶ 26       Generally, there are two such instances. See People v. Edwards, 2012 IL
       111711, ¶ 22. A defendant may raise a due process claim of actual innocence to
       prevent a miscarriage of justice (Coleman, 2013 IL 113307, ¶ 83), or a defendant
       may raise any other defaulted constitutional claim by satisfying the so-called
       “cause-and-prejudice” test (id. ¶ 82). To establish “cause,” the defendant must
       show some objective factor external to the defense that impeded his ability to raise
       the claim in the initial postconviction proceeding. Pitsonbarger, 205 Ill. 2d at 460.
       To establish “prejudice,” the defendant must show the claimed constitutional error
       so infected his trial that the resulting conviction violated due process. Id. at 464.
       The cause-and-prejudice test has been codified in the Act. See 725 ILCS 5/122-1(f)
       (West 2010); People v. Tidwell, 236 Ill. 2d 150, 156 (2010).

¶ 27       Initially, the State contends that the defendant’s Miller claim is
       “thrice-forfeited” because he failed to raise an as-applied challenge to his sentence
       in his 2010 motion for leave to file a successive postconviction petition, his 2012
       pre-remand appellate court briefs, and his 2013 pre-remand petition for leave to
       appeal. Relying upon People v. Jones, 213 Ill. 2d 498, 505 (2004), the State asserts




                                               -9-
       that a claim not raised in a postconviction petition cannot be raised for the first time
       on appeal. The State insists that the defendant’s as-applied Miller claim must be
       presented to the trial court in a motion for leave to file a successive postconviction
       petition.

¶ 28        The defendant contends that the State forfeited its forfeiture argument because
       that argument was raised for the first time in the State’s response brief before this
       court. The defendant’s point is well taken. If the State’s position is that the
       defendant should have raised his as-applied Miller claim in a motion for leave to
       file a successive postconviction petition, the State should have made that argument
       during supplemental briefing on remand when the defendant originally presented
       that claim. See People v. Lucas, 231 Ill. 2d 169, 175 (2008) (“The doctrine of
       forfeiture applies to the State as well as to the defendant and the State may forfeit an
       argument that the defendant forfeited an issue by not properly preserving it for
       review.”).

¶ 29       The State’s forfeiture aside, we would still reach the merits of the defendant’s
       claim. In Thompson, 2015 IL 118151, ¶¶ 36-37, we explained the difference
       between facial and as-applied constitutional claims:

          “Although facial and as-applied constitutional challenges are both intended to
          address constitutional infirmities, they are not interchangeable. [Citation.] An
          as-applied challenge requires a showing that the statute violates the constitution
          as it applies to the facts and circumstances of the challenging party. [Citation.]
          In contrast, a facial challenge requires a showing that the statute is
          unconstitutional under any set of facts, i.e., the specific facts related to the
          challenging party are irrelevant. [Citation.]

               Because facial and as-applied constitutional challenges are distinct actions,
          it is not unreasonable to treat the two types of challenges differently ***. By
          definition, an as-applied constitutional challenge is dependent on the particular
          circumstances and facts of the individual defendant or petitioner. Therefore, it
          is paramount that the record be sufficiently developed in terms of those facts
          and circumstances for purposes of appellate review.”

¶ 30      The defendant’s claim in Thompson illustrated that point. The defendant there
       maintained that the evolving science on juvenile maturity and brain development




                                                - 10 -
       highlighted in Miller applied not only to juveniles but also to young adults like
       himself between the ages of 18 and 21. Id. ¶ 38. We rejected that claim because the
       record contained “nothing about how that science applies to the circumstances of
       defendant’s case, the key showing for an as-applied constitutional challenge.” Id.
       We stated the trial court was the most appropriate tribunal for such factual
       development. Id.

¶ 31       Thompson mentioned Davis, where we held that the statute under which a
       juvenile defendant received a mandatory life sentence was not facially
       unconstitutional under Miller. Davis, 2014 IL 115595, ¶ 32. We also held that
       Miller applied to, and invalidated, that sentence, even though the defendant’s
       Miller claim was raised for the first time on appeal. Id. ¶ 43. We excused the
       defendant’s failure to raise an as-applied Miller claim sooner because the record
       was sufficiently developed to address that type of claim.

¶ 32       Thompson instructs that a defendant must present an as-applied constitutional
       challenge to the trial court in order to create a sufficiently developed record. Davis
       creates a very narrow exception to that rule for an as-applied Miller claim for which
       the record is sufficiently developed for appellate review. Here, in deciding the
       defendant’s first petition for leave to appeal, we directed the appellate court to
       reconsider its judgment in light of Davis. Like the Miller claim in Davis, the Miller
       claim in this case does not require factual development. All of the facts and
       circumstances to decide the defendant’s claim—that his sentencing hearing did not
       comply with Miller—are already in the record. Consequently, in the interests of
       judicial economy (see People v. Bailey, 159 Ill. 2d 498, 506 (1994)), we choose to
       address the merits of the defendant’s claim, rather than requiring him to return to
       the trial court to file another motion for leave to file another successive
       postconviction petition and restart the process of adjudicating his Miller claim. 5



           5
             The State has brought to our attention the recent Fourth District Appellate Court decision in
       People v. Merriweather, 2017 IL App (4th) 150407. Merriweather held that a juvenile defendant
       “forfeited his as-applied challenge to his sentence under Miller by raising it for the first time on
       appeal” and urged him to raise such a claim in a motion for leave to file a successive postconviction
       petition. Id. ¶¶ 18-19. The Fourth District departed from the First District decision in People v.
       Nieto, 2016 IL App (1st) 121604. Nieto, referencing an “implicit finding” in Thompson, stated that
       “juveniles can raise as-applied Miller challenges for the first time on appeal.” Id. ¶ 39.
       Merriweather and Nieto both involved as-applied Miller claims challenging so-called mandatory




                                                      - 11 -
¶ 33        The United States Constitution prohibits “cruel and unusual punishments.” U.S.
       Const., amend. VIII. Inherent in that prohibition is the concept of proportionality.
       See Graham, 560 U.S. at 59. Criminal punishment should be “graduated and
       proportioned to both the offender and the offense.” Davis, 2014 IL 115595, ¶ 18
       (citing Miller, 567 U.S. at ___, 132 S. Ct. at 2463, and Roper, 543 U.S. at 560).
       When the offender is a juvenile and the offense is serious, there is a genuine risk of
       disproportionate punishment. In Roper, Graham, and Miller, the United States
       Supreme Court addressed that risk and unmistakably instructed that youth matters
       in sentencing. Roper held that the eighth amendment prohibited capital sentences
       for juveniles who commit murder. Roper, 543 U.S. at 578-79. Graham held that the
       eighth amendment prohibited mandatory life sentences for juveniles who commit
       nonhomicide offenses. Graham, 560 U.S. at 82. And Miller held that the eighth
       amendment prohibited mandatory life sentences for juveniles who commit murder.
       Miller, 567 U.S. at ___, 132 S. Ct. at 2475.

¶ 34       The defendant in this case did not receive a mandatory life sentence but rather a
       discretionary life sentence. Thus, we initially must decide whether his Miller claim
       is even viable. That is, we must decide whether Miller applies to discretionary life
       sentences. In Davis, we noted:

                “Miller holds that a mandatory life sentence for a juvenile violates the
           eighth amendment prohibition against cruel and unusual punishment. ***
           Miller does not invalidate the penalty of natural life without parole for multiple
           murderers, only its mandatory imposition on juveniles. [Citation.] A minor may
           still be sentenced to natural life imprisonment without parole so long as the
           sentence is at the trial court’s discretion rather than mandatory.” (Emphases in
           original.) Davis, 2014 IL 115595, ¶ 43.

       Davis is correct about the scope of Miller. In Davis, however, we were not asked to
       decide whether Miller could apply to discretionary sentences. Further, we did not
       discuss Miller at length or address Montgomery at all because it had not yet been
       decided. We turn to those cases.




       de facto life sentences. Because that type of claim is not before us here, those cases are
       distinguishable. We leave for another day any resolution of the purported appellate court split.




                                                   - 12 -
¶ 35       In Miller, the Court identified a foundational principle that “imposition of a
       State’s most severe penalties on juvenile offenders cannot proceed as though they
       were not children.” Miller, 567 U.S. at ___, 132 S. Ct. at 2466. That principle
       emerged from two lines of precedent: capital cases where the Court required the
       sentencer to consider the characteristics of the defendant and the circumstances of
       the offense before imposing the death penalty and so-called “categorical ban”
       cases, like Roper and Graham, where the Court invalidated certain sentences for all
       juvenile defendants. Roper and Graham established that “children are
       constitutionally different from adults for purposes of sentencing” in three important
       ways. Id. at ___, 132 S. Ct. at 2464. First, juveniles are more immature and
       irresponsible than adults. Id. (citing Roper, 543 U.S. at 569). Second, juveniles are
       more vulnerable to negative influences and pressures from family and peers than
       adults. Id. And third, juveniles are more malleable than adults—their characters are
       less fixed and their malfeasance is less indicative of irretrievable depravity. Id.
       Those differences lessen juveniles’ moral culpability and enhance their prospects
       for reform. Id. at ___, 132 S. Ct. at 2465. Thus, the Miller Court summarized:

           “[T]he Eighth Amendment forbids a sentencing scheme that mandates life in
           prison without possibility of parole for juvenile offenders. [Citation.] By
           making youth (and all that accompanies it) irrelevant to imposition of that
           harshest prison sentence, such a scheme poses too great a risk of
           disproportionate punishment.” Id. at ___, 132 S. Ct. at 2469.

¶ 36       The Court noted, “Because that holding is sufficient to decide these cases, we
       do not consider [the petitioners’] alternative argument that the Eighth Amendment
       requires a categorical bar on life without parole for juveniles, or at least for those 14
       and younger.” Id. The Court continued, recognizing that life without parole
       sentences for juvenile defendants may comport with the eighth amendment:

           “[G]iven all we have said in Roper, Graham, and this decision about children’s
           diminished culpability and heightened capacity for change, we think
           appropriate occasions for sentencing juveniles to this harshest possible penalty
           will be uncommon. That is especially so because of the great difficulty we
           noted in Roper and Graham of distinguishing at this early age between ‘the
           juvenile offender whose crime reflects unfortunate yet transient immaturity,
           and the rare juvenile offender whose crime reflects irreparable corruption.’




                                                - 13 -
          Although we do not foreclose a sentencer’s ability to make that judgment in
          homicide cases, we require it to take into account how children are different,
          and how those differences counsel against irrevocably sentencing them to a
          lifetime in prison.” Id.

¶ 37       The Court reiterated that its decision “mandates only that a sentencer follow a
       certain     process—considering       an    offender’s    youth    and     attendant
       characteristics—before imposing a particular penalty,” life imprisonment without
       the possibility of parole. Id. at ___, 132 S. Ct. at 2471. Stated differently, a trial
       court must consider a juvenile’s “age and age-related characteristics and the nature
       of their crimes” as “mitigating circumstances.” Id. at ___, 132 S. Ct. at 2475.
       Earlier in its opinion, the Court discussed those characteristics:

          “[I]n imposing a State’s harshest penalties, a sentencer misses too much if he
          treats every child as an adult. To recap: Mandatory life without parole for a
          juvenile precludes consideration of his chronological age and its hallmark
          features—among them, immaturity, impetuosity, and failure to appreciate risks
          and consequences. It prevents taking into account the family and home
          environment that surrounds him—and from which he cannot usually extricate
          himself—no matter how brutal or dysfunctional. It neglects the circumstances
          of the homicide offense, including the extent of his participation in the conduct
          and the way familial and peer pressures may have affected him. Indeed, it
          ignores that he might have been charged and convicted of a lesser offense if not
          for incompetencies associated with youth—for example, his inability to deal
          with police officers or prosecutors (including on a plea agreement) or his
          incapacity to assist his own attorneys. [Citations.] And finally, this mandatory
          punishment disregards the possibility of rehabilitation even when the
          circumstances most suggest it.” Id. at ___, 132 S. Ct. at 2468.

¶ 38       Miller contains language that is significantly broader than its core holding.
       None of what the Court said is specific to only mandatory life sentences.
       Montgomery made that clear. In Montgomery, the Court held that Miller applied
       retroactively. 577 U.S. at ___, 136 S. Ct. at 736. Because the defendant there had
       received a mandatory life sentence, which violated Miller, the Court reversed that
       sentence and remanded for further proceedings. In doing so, the Court offered
       insight into Miller. The Montgomery Court summarized Miller in several similar




                                               - 14 -
       ways. The Court asserted that “Miller requires that before sentencing a juvenile to
       life without parole, the sentencing judge take into account ‘how children are
       different, and how those differences counsel against irrevocably sentencing them to
       a lifetime in prison.’ ” Id. at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at ___,
       132 S. Ct. at 2469). The Court repeated that “Miller requires a sentencer to consider
       a juvenile offender’s youth and attendant characteristics before determining that
       life without parole is a proportionate sentence.” Id. at ___, 136 S. Ct. at 734.
       According to the Court, “[a] hearing where ‘youth and its attendant characteristics’
       are considered as sentencing factors is necessary to separate those juveniles who
       may be sentenced to life without parole from those who may not.” Id. at ___, 136 S.
       Ct. at 735 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2460).

¶ 39       Notably, unlike Miller, Montgomery did not specify which characteristics
       attend youth. The Court remained hesitant to create more procedural requirements
       for state trial courts, such as a requirement that courts make findings of fact
       regarding a juvenile’s incorrigibility, before imposing a life sentence. Id. at ___,
       136 S. Ct. at 735. The Court emphasized, however, that while “Miller did not
       impose a formal factfinding requirement[, that] does not leave States free to
       sentence a child whose crime reflects transient immaturity to life without parole.”
       Id. Such a sentence is disproportionate under the eighth amendment. Id.

¶ 40       A handful of cases from other states have limited Miller and Montgomery to
       only mandatory life sentences. See Foster v. State, 754 S.E.2d 33, 37 (Ga. 2014);
       Arredondo v. State, 406 S.W.3d 300, 307 (Tex. App. 2013); see also Jones v.
       Commonwealth, 795 S.E.2d 705, 721 (Va. 2017) (“[b]oth cases addressed
       mandatory life sentences without possibility of parole” (emphasis in original)).
       Those cases give insufficient regard to the Supreme Court’s far-reaching
       commentary about the diminished culpability of juvenile defendants, which is
       neither crime- nor sentence-specific. The greater weight of authority has concluded
       that Miller and Montgomery send an unequivocal message: Life sentences, whether
       mandatory or discretionary, for juvenile defendants are disproportionate and
       violate the eighth amendment, unless the trial court considers youth and its
       attendant characteristics. See, e.g., State v. Riley, 110 A.3d 1205, 1216 (Conn.
       2015) (“Miller does not stand solely for the proposition that the eighth amendment
       demands that the sentencer have discretion to impose a lesser punishment than life
       without parole on a juvenile homicide offender”); Aiken v. Byars, 765 S.E.2d 572,




                                                - 15 -
       576 (S.C. 2014) (“whether their sentence is mandatory or permissible, any juvenile
       offender who receives a sentence of life without the possibility of parole is entitled
       to the same constitutional protections afforded by the Eighth Amendment’s
       guarantee against cruel and unusual punishment”). We agree with that conclusion
       and hold that Miller applies to discretionary sentences of life without parole for
       juvenile defendants. We must next decide what it means to apply Miller.

¶ 41       The defendant urges us to adopt the characteristics mentioned in Miller, which
       he terms the “Miller factors,” and direct trial courts to use them when revisiting life
       sentences imposed on juvenile defendants before that case was decided. In
       response, the State acknowledges that Miller requires trial courts to consider the
       mitigating characteristics of youth. The State, however, contends that, although the
       Court provided an illustrative list of some of those characteristics, it did not require
       consideration of any specific factors.

¶ 42       The appellate court observed that courts in other states have struggled with how
       to apply Miller. 2016 IL App (5th) 100587-B, ¶ 33 (quoting Riley, 110 A.3d at
       1214 n.5). Some courts have read Miller narrowly, holding that trial courts must
       consider generally mitigating circumstances related to a juvenile defendant’s
       youth. See, e.g., Ex Parte Henderson, 144 So. 3d 1262, 1283 (Ala. 2013) (“the
       Miller Court did not delineate specifically which factors to use in sentencing a
       juvenile”); Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (holding that the
       sentencing court in that case complied with the requirements of Miller by taking
       into account how juveniles are different from adults); State v. Long, 138 Ohio St. 3d
       478, 2014-Ohio-849, 8 N.E.3d 890, ¶¶ 15-16 (stating that Miller “does not lay out
       the ‘certain process’ that trial judges should follow when sentencing juveniles” and
       that various factors “may prove helpful” but are not required).

¶ 43       Other courts have read Miller more broadly, holding that trial courts must
       consider specifically the characteristics mentioned by the Supreme Court. See, e.g.,
       People v. Gutierrez, 324 P.3d 245, 268-69 (Cal. 2014) (“Miller discussed a range of
       factors relevant to a sentencer’s determination of whether a particular defendant” is
       irreparably corrupt); Riley, 110 A.3d at 1216 (quoting Miller’s list of
       characteristics); State v. Null, 836 N.W.2d 41, 74-76 (Iowa 2013) (listing factors
       and stating that Miller provided “clearer guidance on the considerations given in
       sentencing”); State v. Fletcher, 47,777, p. 10 (La. App. 2 Cir. 4/10/13); 112 So. 3d




                                                - 16 -
       1031 (remanding for “a more thorough review of the appropriate factors enunciated
       in Miller”); State v. Hart, 404 S.W.3d 232, 238 (Mo. 2013) (en banc) (holding that
       the juvenile defendant’s life sentence was unconstitutional because “the sentence
       [must] consider whether this punishment is just and appropriate in light of [his] age,
       maturity and the other factors discussed in Miller”); State v. Ali, 855 N.W.2d 235,
       256-57 (Minn. 2014) (stating that “mitigating circumstances might include, but are
       not limited to,” the characteristics in Miller); Parker v. State, 2011-KA-01158-SCT
       (¶ 19) (Miss. 2013) (noting that Miller identified “several factors,” then quoting
       Miller’s list of characteristics); Luna v. State, 387 P.3d 956, 962 (Ok. 2016)
       (quoting Miller and labeling three of the listed characteristics “important
       youth-related considerations”); Commonwealth v. Knox, 50 A.3d 732, 745 (Pa.
       2012) (stating that “although Miller did not delineate specifically what factors a
       sentencing court must consider, at a minimum it should consider” a paraphrased
       version of the listed characteristics); Aiken, 765 S.E.2d at 577 (quoting the factors
       listed in Miller); Bear Cloud v. State, 2013 WY 18, ¶ 42, 294 P.3d 36 (quoting the
       factors listed in Miller and stating that those factors are “not exhaustive”). As the
       California Supreme Court observed, “the emerging body of post-Miller case law”
       has held that a trial court must consider some variant of the Miller factors before
       imposing a life sentence without the possibility of parole. Gutierrez, 324 P.3d at
       269.

¶ 44        We adopt the latter approach. Not only is that approach consistent with People
       v. Reyes, 2016 IL 119271, ¶ 3, where we referred to the characteristics listed in
       Miller as “mitigating factors,” it is also consistent with our earlier case law. We
       have long held that age is not just a chronological fact but a multifaceted set of
       attributes that carry constitutional significance. See People v. McWilliams, 348 Ill.
       333, 336 (1932) (stating that, in sentencing a juvenile defendant, the trial court
       “may search anywhere” for aggravation and mitigation evidence, including “the
       general moral character of the offender, his mentality, his habits, his social
       environments, his abnormal or subnormal tendencies, his age, his natural
       inclination or aversion to commit crime, the stimuli which motive his conduct, and
       *** [his] life, family, occupation, and record”); People v. Miller, 202 Ill. 2d 328,
       341 (2002) (holding that “a mandatory sentence of natural life in prison with no
       possibility of parole grossly distorts the factual realities of the case and does not
       accurately represent [the] personal culpability” of the 15-year-old defendant); cf.
       People v. La Pointe, 88 Ill. 2d 482, 497 (1981) (“[h]ighly relevant—if not



                                               - 17 -
       essential—to [a sentencing judge’s] selection of an appropriate sentence is the
       possession of the fullest information possible concerning the defendant’s life and
       characteristics” (internal quotation marks omitted)).

¶ 45       Additionally, consideration of the Miller factors is consistent with section
       5-4.5-105 of the Unified Code of Corrections, which now requires the trial court to
       consider factors taken from the Supreme Court’s list. See 730 ILCS 5/5-4.5-105
       (West 2016). Because Miller is retroactive (see Montgomery, 577 U.S. at ___, 136
       S. Ct. at 736; Davis, 2014 IL 115595, ¶ 39), all juveniles, whether they were
       sentenced after the statutory amendment became effective on January 1, 2016, or
       before that, should receive the same treatment at sentencing. See People v. Ortiz,
       2016 IL App (1st) 133294, ¶ 23. 6

¶ 46       Under Miller and Montgomery, a juvenile defendant may be sentenced to life
       imprisonment without parole, but only if the trial court determines that the
       defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or
       irreparable corruption beyond the possibility of rehabilitation. The court may make
       that decision only after considering the defendant’s youth and its attendant
       characteristics. Those characteristics include, but are not limited to, the following
       factors: (1) the juvenile defendant’s chronological age at the time of the offense and
       any evidence of his particular immaturity, impetuosity, and failure to appreciate
       risks and consequences; (2) the juvenile defendant’s family and home
       environment; (3) the juvenile defendant’s degree of participation in the homicide
       and any evidence of familial or peer pressures that may have affected him; (4) the
       juvenile defendant’s incompetence, including his inability to deal with police
       officers or prosecutors and his incapacity to assist his own attorneys; and (5) the
       juvenile defendant’s prospects for rehabilitation. See Miller, 567 U.S. at ___, 132
       S. Ct. at 2468.

¶ 47       For juvenile defendants like the defendant in this case, who were sentenced
       before the statutory amendment, any inquiry into the Miller factors is
       backwards-looking. As Graham instructed, “[e]ven if the State’s judgment that [the
       defendant] was incorrigible were later corroborated by prison misbehavior or

           6
             According to a recent report, there are 20 juveniles, including the defendant, serving
       discretionary life sentences in Illinois. See A State-by-State Look at Juvenile Life Without Parole,
       Associated Press, July 31, 2017, https://apnews.com/9debc3bdc7034ad2a68e62911fba0d85.




                                                     - 18 -
       failure to mature, the sentence was still disproportionate because that judgment was
       made at the outset.” Graham, 560 U.S. at 73. Bad conduct while imprisoned cannot
       buttress a finding of incorrigibility. Similarly, good conduct while imprisoned
       cannot undercut such a finding. In revisiting a juvenile defendant’s life without
       parole sentence, the only evidence that matters is evidence of the defendant’s youth
       and its attendant characteristics at the time of sentencing. Whether such evidence
       exists depends upon the state of the record in each case. A court revisiting a
       discretionary sentence of life without parole must look at the cold record to
       determine if the trial court considered such evidence at the defendant’s original
       sentencing hearing. We must decide whether the trial court did so here.

¶ 48       In announcing the defendant’s sentence, the trial court explicitly stated that it
       considered the trial evidence and the PSI, as well as the evidence and arguments
       from the sentencing hearing. The trial court knew the defendant was 17 at the time
       of the offense, and the prosecutor and the defendant’s attorney both highlighted his
       age in their arguments at the sentencing hearing. The PSI and the psychological
       reports provided some insight into his mentality but did not depict him as
       immature, impetuous, or unaware of risks. The PSI included information about the
       defendant’s family. Although his father and his stepfather had died, he reportedly
       maintained a close relationship with his mother and siblings. The evidence at trial
       showed that there was some dispute between the defendant and Davis about who
       shot Esther, but both were intimately involved with the offense. The defendant’s
       fingerprints were found in two locations at the house, including the cabinet where
       the rifle was kept. The PSI alerted the trial court to the defendant’s susceptibility to
       peer pressure, as well as his low intelligence and possible brain damage from a head
       injury, but there was nothing presented at trial or sentencing to indicate that the
       defendant was incompetent and could not communicate with police officers or
       prosecutors or assist his own attorney. Dr. Raza’s second report spoke positively
       about the defendant’s verbal intelligence. As to the defendant’s prospects for
       rehabilitation, the PSI included a statement from the probation officer, who found
       “no predilection for rehabilitation,” in light of the defendant’s “history of senseless
       criminal acts of mortal violence toward others and lack of remorse for his victims.”

¶ 49       The defendant insists that the trial court did not, in fact, consider any mitigating
       circumstances of his youth because the trial court stated that it found “no mitigating
       factors.” The defendant misapprehends the trial court’s statement. The court




                                                - 19 -
       actually said that it considered the statutory factors in aggravation and mitigation
       and that it found none of the latter. The trial court’s statement is undeniably true.
       There was no evidence at trial or sentencing regarding any of the 12 factors listed in
       section 1005-5-3.1(a). See Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-5-3.1(a). Further, the
       defendant forgets that he advised his attorney that he did not want to offer any
       mitigating evidence and his mother advised his attorney that she did not want to
       testify on his behalf. The defendant’s attorney informed the court of their wishes
       and acknowledged, “I have no evidence to present at this time.” And the
       defendant’s attorney specifically declined the trial court’s invitation to make any
       additions, corrections, or modifications to the PSI. In short, the defendant had every
       opportunity to present evidence to show that his criminal conduct was the product
       of immaturity and not incorrigibility. See Montgomery, 577 U.S. at ___, 136 S. Ct.
       at 736 (juveniles facing life sentences “must be given the opportunity to show their
       crime did not reflect irreparable corruption”). He chose to offer nothing.

¶ 50       Thus, the trial court had no evidence to consider on any of the statutory factors
       in mitigation, but some evidence related to the Miller factors. On the other side of
       the scale, the trial court had significant evidence to consider on the statutory factors
       in aggravation. See Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-5-3.2. The defendant admits
       in his reply brief that “there are bad facts.” That is an understatement. The trial
       court knew those facts, having presided over the case from pretrial motion hearings
       through the trial and the sentencing hearing. The court concluded that the
       defendant’s conduct placed him beyond rehabilitation and sentenced him to life
       without parole. The defendant’s sentence passes constitutional muster under
       Miller.

¶ 51        Finally, we note that amicus asks for a categorical ban on life sentences for
       juveniles. We refuse to adopt such a rule. Whether or not discretionary life
       sentences for juveniles are advisable is a question for legislators. Whether or not
       such sentences are constitutional is a question for judges, and the justices of the
       United States Supreme Court have so far declared that they may be, provided the
       trial court complies with Miller. Even the defendant agrees that “[n]othing in this
       Court’s jurisprudence or Miller held that a natural life sentence may never be
       appropriate.”




                                                - 20 -
¶ 52                                     CONCLUSION

¶ 53        For the reasons that we have stated, we affirm the appellate court’s judgment,
       which affirmed the trial court’s decision to deny the defendant’s motion for leave to
       file a successive postconviction petition.


¶ 54      Affirmed.




                                              - 21 -
