                                                                           Digitally signed by
                        Illinois Official Reports                          Reporter of Decisions
                                                                           Reason: I attest to the
                                                                           accuracy and integrity
                                                                           of this document
                                Appellate Court                            Date: 2016.09.21
                                                                           11:59:02 -05'00'




                  People v. Holman, 2016 IL App (5th) 100587-B



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



District & No.     Fifth District
                   Docket No. 5-10-0587



Filed              March 3, 2016



Decision Under     Appeal from the Circuit Court of Madison County, No. 80-CF-5; the
Review             Hon. Charles V. Romani, Jr., Judge, presiding.



Judgment           Affirmed.



Counsel on         Michael J. Pelletier, Ellen J. Curry, and Robert S. Burke, all of State
Appeal             Appellate Defender’s Office, of Mt. Vernon, for appellant.

                   Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick
                   Delfino, Stephen E. Norris, and Whitney E. Atkins, all of State’s
                   Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE CHAPMAN delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Schwarm and Justice Moore concurred in the
                   judgment and opinion.
                                               OPINION

¶1        This appeal requires us to consider whether a natural-life sentence without the possibility
     of parole may be imposed on a defendant who was a minor at the time of the offense when the
     sentencing court had the discretion to impose a lesser sentence. The defendant, Richard
     Holman, was 17 years old when he committed the murder at issue in this case. In April 1981, a
     court sentenced him to natural life in prison. Since that time, courts have grappled with the
     question of the extent to which the eighth amendment’s proscription against cruel and unusual
     punishment (U.S. Const., amend. VIII) limits the sentences that may be imposed for crimes
     committed by juveniles. In Miller v. Alabama, the United States Supreme Court held that a
     mandatory sentence of natural life in prison without the possibility of parole runs afoul of the
     eighth amendment when imposed for a crime committed when the defendant was a juvenile.
     Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2469 (2012). In this case, the defendant
     filed a petition for leave to file a successive postconviction petition alleging that his natural-life
     sentence is unconstitutional. He appeals an order denying that petition, arguing that (1) the
     sentencing court did not take into account mitigating factors associated with his youth, as
     required by the Court in Miller, and (2) the holding of Miller should be expanded to encompass
     any natural-life sentence imposed for a crime committed while the defendant was a juvenile.
     We affirm.
¶2        On July 13, 1979, 83-year-old Esther Sepmeyer was found dead in her rural farmhouse.
     Mrs. Sepmeyer had been shot in the side of the head with her own rifle. Her home had been
     ransacked. The defendant’s fingerprints were found on the cabinet where Mrs. Sepmeyer
     stored her rifle. The defendant and a codefendant, Girvies Davis, were arrested for the murder.
     Both gave statements to police. Girvies admitted that he loaded the rifle but indicated that the
     defendant was the shooter. The defendant indicated that Girvies was the shooter. Although the
     defendant’s fingerprints were the only prints found on the cabinet, the State acknowledged that
     it could not establish beyond a reasonable doubt which of the two defendants was the shooter.
     It should be noted that the defendant turned 18 on August 20, 1979, just five weeks after the
     murder.
¶3        A jury found the defendant guilty of first degree murder in March 1981, and the matter
     proceeded to a sentencing hearing on April 24, 1981. The multiple-murder sentencing statute
     in effect at the time provided that the court “may sentence the defendant to a term of natural life
     imprisonment” if the defendant has been convicted of murdering more than one person.
     (Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-8-1(a)(1); see also Ill. Rev. Stat. 1979,
     ch. 38, ¶¶ 1003-3-3(d), 1005-8-1(d) (providing that parole is not available to prisoners serving
     sentences of natural life). (We note that the statute was subsequently amended to make
     natural-life sentences mandatory for defendants convicted of more than one murder. See Pub.
     Act 82-717, § 2 (eff. July 1, 1982) (amending Ill. Rev. Stat. 1981, ch. 38, ¶ 1005-8-1). All of
     the Illinois cases we will discuss later in this opinion arose under the latter version of the
     statute.)
¶4        A presentence investigation report (PSI) indicated that the defendant had been convicted in
     two unrelated cases of two additional murders and one attempted murder. One of those cases
     involved the August 30, 1979, robbery of an auto parts store. The defendant and Girvies, his
     codefendant in this case, were both convicted of one count of murder and one count of
     attempted murder. The other case involved the May 11, 1979, murder of John Oertel, during a

                                                   -2-
       home invasion. In addition, the PSI indicated that the defendant had three delinquency
       adjudications between 1975 and 1978. Two delinquency adjudications were for burglaries; the
       third involved three counts of criminal damage to property.
¶5          The PSI included psychological evaluations of the defendant. Psychiatrist Dr. Syed Raza
       evaluated the defendant and diagnosed him with borderline or dull normal intelligence,
       anxiety, and depression. He stated, however, that these diagnoses were tentative because he
       believed that neurological testing was necessary to exclude neurological issues resulting from
       a head injury.
¶6          Psychologist Cheryl Prost then performed a psychological evaluation. In her evaluation,
       Prost noted that there were indications of neurological impairment. She found that the
       defendant had a verbal IQ of 73 and a performance IQ of 64. These scores both fell within the
       borderline retarded range. Prost also pointed out that the defendant was admitted to the Warren
       G. Murray Children’s Home for a period of six weeks in 1976 when he was 15 years old. Prost
       noted that, during that time, staff observed that the defendant tended to be a follower and that
       his low IQ made him susceptible to bad influences from more intelligent peers.
¶7          After reviewing Prost’s evaluation, Dr. Raza provided an addendum to his evaluation. Dr.
       Raza noted that although the defendant’s overall IQ was toward the lower end of the borderline
       mentally retarded range, his verbal IQ was high enough to give the defendant the ability to
       exercise judgment as to the difference between right and wrong. Dr. Raza concluded that the
       defendant was not “severely handicapped” in terms of his ability to differentiate right from
       wrong.
¶8          The PSI also contained a brief family history as well as the observations of the probation
       officer who prepared the report, Linda Schulze. In the family history section, Schulze noted
       that the defendant’s father and stepfather both died while he was young. She further noted that
       the defendant reported to her that he had a close and loving relationship with his mother and
       siblings. Finally, Schulze noted that the defendant showed no remorse for Mrs. Sepmeyer or
       for the victims of any of his prior crimes. Schulze thus concluded that the defendant had “no
       predilection for rehabilitation.”
¶9          At the sentencing hearing, the State’s Attorney highlighted the defendant’s criminal
       history and emphasized the fact that the victim was 83 years old and posed no threat to the
       defendant. He argued that, given the defendant’s history, a sentence of natural life in prison
       was necessary to protect the public from the defendant. In addition, he argued that such a
       sentence was necessary to deter others from “going out on similar killing sprees.” Defense
       counsel argued that the question before the court was whether the court “should assess natural
       life to this very young man.” Counsel asked the court to consider rehabilitation as a goal and
       argued that isolation in the prison system mitigates against that goal.
¶ 10        The court offered the defendant an opportunity to make a statement. The defendant
       expressed no remorse for his role in the death of Esther Sepmeyer. Instead, he took issue with
       the prosecutor’s argument that he had been convicted of previous murders. He told the court, “I
       have been convicted as what they say as accessory of the murder, of knowing that this murder
       [may] have taken place. I was never convicted of no murder.”
¶ 11        Before pronouncing sentence, the court stated that it had considered the statutory factors in
       aggravation and mitigation. The court found no statutory factors in mitigation and stated that
       there were “many factors in aggravation.” The court then stated that it had considered the
       evidence presented at trial, the PSI, and the evidence and arguments presented at the

                                                   -3-
       sentencing hearing. The court concluded, stating, “And the court believes that this Defendant
       cannot be rehabilitated and that it is important that society be protected from this Defendant.”
       The court therefore sentenced the defendant to natural life in prison.
¶ 12       The defendant appealed his conviction, but did not challenge his sentence. This court
       affirmed the defendant’s conviction on direct appeal. People v. Holman, 115 Ill. App. 3d 60, 66
       (1983). Between 2001 and 2009, the defendant filed three petitions for leave to file
       postconviction petitions. He raised various challenges to his sentence, including claims based
       on Apprendi v. New Jersey, 530 U.S. 466 (2000), and our supreme court’s holding in People v.
       Miller, 202 Ill. 2d 328 (2002) (Leon Miller) (holding that a mandatory sentence of life in prison
       violates the eighth amendment if imposed for a murder committed by a juvenile convicted
       under a theory of accountability). Each petition was dismissed, and this court upheld those
       rulings on appeal.
¶ 13       On October 7, 2010, the defendant filed the petition for leave to file a successive
       postconviction petition that is at issue in this appeal. In his pro se petition, he argued that his
       sentence of natural life in prison violated the constitution. He did not cite the eighth
       amendment, and he could not cite Miller v. Alabama, which had not yet been decided. On
       November 10, 2010, the circuit court entered an order denying the defendant’s petition for
       leave to file the postconviction petition. The court found that the defendant failed to allege
       facts to satisfy the cause-and-prejudice test. See 725 ILCS 5/122-1(f) (West 2010); People v.
       Pitsonbarger, 205 Ill. 2d 444, 460 (2002). The defendant appealed that ruling.
¶ 14       The United States Supreme Court issued its decision in Miller in June 2012, while this
       matter was pending on appeal. The defendant argued on appeal that his sentence was
       unconstitutional pursuant to Miller. On December 31, 2012, this court affirmed the trial court’s
       order denying the defendant’s petition. We acknowledged that the First District had held that
       Miller applied retroactively to cases on collateral review. People v. Holman, 2012 IL App (5th)
       100587-U, ¶ 19 (citing People v. Williams, 2012 IL App (1st) 111145, ¶¶ 42-56, and People v.
       Morfin, 2012 IL App (1st) 103568, ¶¶ 35-59). However, we found that the defendant forfeited
       this claim by failing to identify the eighth amendment as the basis for the constitutional claim
       in his petition. Id. ¶ 18. We further found that he failed to satisfy the “cause” portion of the
       cause-and-prejudice test because the petition did not raise any claims that could not have been
       raised in earlier proceedings. Id. ¶ 16. We thus concluded that the defendant’s Miller argument
       was not properly before us. Id. ¶ 17. We then noted in dicta that Miller was not violated
       because the defendant here was “afforded a ‘sentencing hearing where natural life
       imprisonment [was] not the only available sentence.’ ” Id. ¶ 19 (quoting Morfin, 2012 IL App
       (1st) 103568, ¶ 59).
¶ 15       Subsequently, Illinois courts, including this court, have relaxed the forfeiture rule further
       than this court was willing to do in the defendant’s first appeal. In People v. Luciano, a
       defendant filed a postconviction petition raising several challenges to his conviction. People v.
       Luciano, 2013 IL App (2d) 110792, ¶ 38. He did not challenge the constitutionality of his
       sentence, however. Id. ¶ 46. The trial court dismissed his petition in July 2011, which was
       nearly a year before the Supreme Court issued its decision in Miller. Id. ¶ 39. The defendant
       argued on appeal that his sentence was unconstitutional under Miller. Id. ¶ 43. The Second
       District rejected the State’s contention that the defendant had forfeited this argument. Id.
       ¶¶ 46-47. The court explained that an unconstitutional sentence is void and may therefore be
       challenged at any time. Id. ¶ 48.

                                                    -4-
¶ 16       Similarly, in People v. Johnson, this court considered an appeal from a trial court order
       which denied a postconviction petition before the Supreme Court issued its opinion in Miller.
       People v. Johnson, 2013 IL App (5th) 110112, ¶ 8. On appeal, the defendant challenged his
       sentence on the basis of Miller, which was decided while the matter was pending on appeal. Id.
       In rejecting the State’s forfeiture argument, we first noted that the petition in that case alleged
       that the defendant’s sentence was unconstitutional because it did not “ ‘reflect *** his ability to
       be rehabilitated’ ” and because it was “ ‘cruel.’ ” Id. ¶ 13. We then stated, “We also note that
       Miller v. Alabama has only been recently decided and to ignore it and its applicability in the
       instant case would constitute a serious injustice.” Id.
¶ 17       Most importantly, our decision not to address the merits of the defendant’s Miller claim
       was further undermined by the Illinois Supreme Court in People v. Davis, 2014 IL 115595,
       cert. denied, 574 U.S. ___, 135 S. Ct. 710 (2014). There, the supreme court addressed the
       applicability of the cause-and-prejudice test and reached the merits of a Miller claim raised in a
       situation procedurally similar to the case before us. The defendant in Davis filed a petition for
       leave to file a successive postconviction petition. The petition, filed before Miller was decided,
       challenged the defendant’s natural-life sentence under the eighth amendment. This argument
       was based on Graham v. Florida, 560 U.S. 48 (2010). Davis, 2014 IL 115595, ¶ 9. On appeal,
       he also argued that the sentence was unconstitutional pursuant to Miller. Id. ¶ 10. The appellate
       court applied Miller retroactively (id.), and the State appealed that ruling to the Illinois
       Supreme Court (id. ¶¶ 11, 22). The supreme court held that Miller announced a new
       substantive rule of constitutional law to be applied retroactively. Id. ¶¶ 34-40; see also
       Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 735 (2016); Johnson, 2013 IL
       App (5th) 110112, ¶ 22.
¶ 18       Significantly for purposes of this appeal, the Davis court went on to consider the relevance
       of Miller in applying the cause-and-prejudice test. The Post-Conviction Hearing Act (725
       ILCS 5/122-1 et seq. (West 2010)) contemplates that a defendant will file only one petition.
       Davis, 2014 IL 115595, ¶ 14 (citing Pitsonbarger, 205 Ill. 2d at 456). With limited exceptions
       not relevant here, a defendant will not be granted leave to file a successive petition unless he
       can establish both cause and prejudice for his failure to raise his claims in an earlier petition.
       Id. To establish “cause,” a defendant must allege that an “objective factor external to the
       defense” prevented counsel from raising the claim earlier. Id. “Prejudice” means an asserted
       constitutional error so serious that the resulting conviction or sentence violates due process. Id.
       The Davis court explained that “Miller’s new substantive rule constitutes ‘cause’ because it
       was not available earlier to counsel [citation], and [it] constitutes prejudice because it
       retroactively applies to [the] defendant’s sentencing hearing.” Id. ¶ 42. The supreme court
       subsequently directed this court to vacate our previous decision in this case and directed us to
       consider whether, in light of its holding in Davis, a different result was warranted. People v.
       Holman, No. 115597 (Ill. Jan. 28, 2015) (supervisory order).
¶ 19       Upon reconsideration, we find that it is appropriate to address the merits of the defendant’s
       Miller claim. Our previous finding that the defendant failed to meet the cause-and-prejudice
       test is contrary to the supreme court’s ruling on that issue in Davis. In addition, in light of
       Johnson and Luciano, we believe it is appropriate to relax the forfeiture rule and consider the
       defendant’s arguments even though the eighth amendment was not raised in the defendant’s
       pro se petition. We now turn to those arguments.



                                                    -5-
¶ 20        The defendant argues that his sentence of natural life in prison violates the eighth
       amendment under the Supreme Court’s holding in Miller. Constitutionality of sentencing
       schemes is a question of law. Our review, therefore, is de novo. People v. Jones, 223 Ill. 2d
       569, 596 (2006).
¶ 21        The eighth amendment provides that “ ‘[e]xcessive bail shall not be required, nor excessive
       fines imposed, nor cruel and unusual punishments inflicted.’ ” Graham v. Florida, 560 U.S.
       48, 58 (2010) (quoting U.S. Const., amend. VIII). This prohibition applies not only to forms of
       punishment that are “inherently barbaric,” but also to sentences that are “disproportionate to
       the crime.” Id. at 59. The Supreme Court has repeatedly emphasized that the requirement of
       proportionate sentencing is central to the protection afforded by the eighth amendment. Miller,
       567 U.S. at ___, 132 S. Ct. at 2463; Graham, 560 U.S. at 59. This means that sentences must be
       proportionate to both the offender and to the offense. Miller, 567 U.S. at ___, 132 S. Ct. at
       2463 (quoting Roper v. Simmons, 543 U.S. 551, 560 (2005), quoting Weems v. United States,
       217 U.S. 349, 367 (1910)).
¶ 22        Miller was one of a series of United States Supreme Court cases involving the
       proportionality of sentences imposed for serious crimes committed by juveniles. Id. at ___,
       132 S. Ct. at 2464-65 (discussing Graham and Roper). These cases, like other eighth
       amendment cases, required the Court to consider both the nature of the offense and the
       characteristics of the offender. Graham, 560 U.S. at 60.
¶ 23        In considering the characteristics of young offenders, the Court explained that juveniles
       “are constitutionally different from adults for purposes of sentencing.” Miller, 567 U.S. at ___,
       132 S. Ct. at 2464. One key distinction is that a juvenile’s character is less fully formed and
       less permanently fixed than that of an adult. Thus, the actions of a juvenile offender are less
       likely than those of an adult to be the result of irreparable depravity. Id. at ___, 132 S. Ct. at
       2464 (quoting Roper, 543 U.S. at 570). This fact makes the possibility of rehabilitation a
       particularly appropriate consideration. Id. at ___, 132 S. Ct. at 2468. Another important
       difference between juveniles and adults is that juveniles are more susceptible to negative
       outside influences, including peer pressure and familial pressure. Id. at ___, 132 S. Ct. at 2464
       (quoting Roper, 543 U.S. at 569). The Court pointed out that a juvenile “cannot usually
       extricate himself” from a “brutal or dysfunctional” home environment. Id. at ___, 132 S. Ct. at
       2468. A third critical distinction identified by the Supreme Court is the fact that juveniles are
       less mature, less responsible, more impulsive, and more likely to take risks than their adult
       counterparts. Id. at ___, 132 S. Ct. at 2464 (quoting Roper, 543 U.S. at 569). The Court
       explained in Miller that because of these features, juvenile defendants have both “diminished
       culpability and [a] heightened capacity for change.” Id. at ___ , 132 S. Ct. at 2469.
¶ 24        In assessing the nature of the offense, the Court has drawn “a line ‘between homicide and
       other serious violent offenses.’ ” Graham, 560 U.S. at 69 (quoting Kennedy v. Louisiana, 554
       U.S. 407, 438 (2008)). This is because the “Court has recognized that defendants who do not
       kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most
       serious forms of punishment than are murderers.” Id.
¶ 25        Finally, in considering whether a sentence itself is excessive or disproportionate, the Court
       has generally treated the death penalty differently from prison sentences. In death penalty
       cases, the Court has held that the eighth amendment requires “certain categorical restrictions.”
       Id. at 59. By contrast, cases involving challenges to the proportionality of prison terms have
       instead required the Court to consider whether the length of the sentence is “grossly

                                                     -6-
       disproportionate” in light of all the circumstances of the particular case. Id. at 59-60. Such
       cases have not generally involved categorical restrictions. See id. at 61 (noting that a
       “categorical challenge to a term[ ]of[ ]years” was a question the Court had not previously
       considered). However, the Court has recognized that natural life without the possibility of
       parole is “ ‘the second most severe penalty permitted by law’ ” (id. at 69 (quoting Harmelin v.
       Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring in the
       judgment, joined by O’Connor and Souter, JJ.))) and that such sentences “share some
       characteristics with death sentences” (id.). In Graham and Miller, the Court also recognized
       that a sentence of natural life without the possibility of parole is a harsher sentence when
       imposed on a juvenile than it is when it is imposed on an adult offender. This is because the
       juvenile will spend a longer time in prison as a result of this sentence than will an adult
       offender. Miller, 567 U.S. at ___, 132 S. Ct. at 2466; Graham, 560 U.S. at 70.
¶ 26       Applying these principles in Graham, the Supreme Court held the eighth amendment
       requires a categorical ban on sentences of natural life without the possibility of parole for
       crimes other than homicide that are committed by juveniles. Graham, 560 U.S. at 82. The
       Court took care to distinguish between homicide and other felonies. Id. at 69. The Court
       explained that “when compared to an adult murderer, a juvenile offender who did not kill or
       intend to kill has a twice diminished moral culpability.” Id. This holding was therefore limited
       to nonhomicide cases. Id. at 82.
¶ 27       Two years later in Miller, the Court considered a challenge to mandatory sentences of
       natural life in prison imposed for murders committed by juveniles. That case involved appeals
       by two 14-year-old defendants convicted of murder. Each defendant was sentenced to life in
       prison without the possibility of parole pursuant to state laws that did not give sentencing
       courts the discretion to impose any other sentence. Miller, 567 U.S. at ___, 132 S. Ct. at 2460.
       In determining that these sentences were not sanctioned under the eighth amendment, the
       Court reaffirmed that “Graham’s flat ban on life without parole applied only to nonhomicide
       crimes.” Id. at ___, 132 S. Ct. at 2465. However, the Court explained:
               “But none of what [the Graham Court] said about children–about their distinctive (and
               transitory) mental traits and environmental vulnerabilities–is crime-specific. Those
               features are evident in the same way, and to the same degree, when (as in both cases
               here) a botched robbery turns into a killing. So Graham’s reasoning implicates any
               life-without-parole sentence imposed on a juvenile, even as its categorical bar relates
               only to nonhomicide offenses.” Id. at ___, 132 S. Ct. at 2465.
¶ 28       The Court then explained at length how mandatory sentencing schemes fail to take these
       features of youth into account. The Court explained:
               “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

                                                  -7-
               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.
       In addition, the Court explained that mandatory sentencing schemes are flawed because they
       do not allow sentencing courts to differentiate between a 17-year-old defendant and a
       14-year-old or between a shooter and an accomplice. Id. at ___, 132 S. Ct. at 2467-68.
¶ 29       In light of these considerations, the Court held “that the Eighth Amendment forbids a
       sentencing scheme that mandates life in prison without possibility of parole for juvenile
       offenders.” Id. at ___, 132 S. Ct. at 2469. The Court stated that this holding would not
       “foreclose a sentencer’s ability” to impose such a sentence in homicide cases. Id. at ___, 132 S.
       Ct. at 2469. The Court noted, however, that “given all [the Court has] said *** 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.” Id. at ___, 132 S. Ct.
       at 2469. The Court further stated that its holding requires sentencing courts “to take into
       account how children are different, and how those differences counsel against irrevocably
       sentencing them to a lifetime in prison.” Id. at ___, 132 S. Ct. at 2469.
¶ 30       The defendant acknowledges that the sentencing court in this case had the discretion to
       impose a sentence other than natural life. He argues, however, that his sentence runs afoul of
       Miller for two reasons. First, he argues that the court did not consider certain factors he
       contends the Miller Court required sentencing courts to consider. Second, he argues that,
       assuming Miller did not mandate consideration of set factors, there is no indication in the
       record that the sentencing court gave any weight to his status as a juvenile. We will consider
       these arguments in turn.
¶ 31       The defendant first argues that his sentence does not comport with the requirements of
       Miller because the sentencing court did not hold a “Miller-type” hearing at which it considered
       what he refers to as the Miller factors. In support of this contention, the defendant cites a South
       Carolina decision which identified the Miller factors as:
               “(1) the chronological age of the offender and the hallmark features of youth, including
               ‘immaturity, impetuosity, and failure to appreciate the risks and consequence’; (2) the
               ‘family and home environment’ that surrounded the offender; (3) the circumstances of
               the homicide offense, including the extent of the offender’s participation in the conduct
               and how familial and peer pressures may have affected him; (4) the ‘incompetencies
               associated with youth–for example, [the offender’s] inability to deal with police
               officers or prosecutors (including on a plea agreement) or [the offender’s] incapacity to
               assist his own attorneys’; and (5) the ‘possibility of rehabilitation.’ ” Aiken v. Byars,
               765 S.E.2d 572, 577 (S.C. 2014) (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2468).
       The defendant points out that the statutory factors in mitigation considered by the sentencing
       court in this case did not include any of these factors. See Ill. Rev. Stat. 1979, ch. 38,
       ¶ 1005-5-3.1. As such, he contends, his sentence must be vacated and this cause must be
       remanded for a new sentencing hearing that fully complies with what he sees as the
       requirements of Miller.
¶ 32       In response, the State acknowledges that the Miller Court mandated consideration of 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 mandate consideration of
       any specific factors. We agree with the State.

                                                    -8-
¶ 33       We first note that the state courts that have addressed the question of how to apply Miller in
       the context of discretionary natural-life sentences have reached differing conclusions. See
       State v. Riley, 110 A.3d 1205, 1214 n.5 (Conn. 2015) (noting that “there is no clear
       consensus”). Some courts have found that Miller requires consideration of set factors
       associated with youth, as the South Carolina Supreme Court found in Aiken. See, e.g., id. at
       1216; People v. Gutierrez, 324 P.3d 245, 268-69 (Cal. 2014) (describing five factors courts
       must consider before sentencing juvenile defendants to life in prison without parole); Bear
       Cloud v. State, 2013 WY 18, ¶ 42, 294 P.3d 36 (Wyo. 2013) (setting forth seven factors courts
       must consider in sentencing juveniles to life in prison without parole (quoting Miller, 567 U.S.
       at ___, 132 S. Ct. at 2467-68)). Other courts have concluded that as long as sentencing courts
       have the discretion to impose sentences other than natural life in prison without the possibility
       of parole, Miller is not violated. See, e.g., Foster v. State, 754 S.E.2d 33, 37 (Ga. 2014);
       Arredondo v. State, 406 S.W.3d 300, 307 (Tex. App. 2013).
¶ 34       Still other courts have found that although the Miller Court did require sentencing courts to
       consider mitigating circumstances related to a juvenile defendant’s youth, it did not require
       courts to consider any set list of factors. See, e.g., State v. Ali, 855 N.W.2d 235, 257 (Minn.
       2014) (explaining that sentencing courts must consider “any mitigating circumstances,”
       including those discussed by the Miller Court); State v. Long, 138 Ohio St. 3d 478,
       2014-Ohio-849, 8 N.E.3d 890, at ¶ 16 (finding that the factors adopted by the Wyoming
       Supreme Court in Bear Cloud “may prove helpful” to courts sentencing juvenile defendants,
       but refusing to require sentencing courts to make explicit findings with respect to any
       enumerated factors); 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 “ ‘and how those differences counsel against
       irrevocably sentencing them to a lifetime in prison’ ” (quoting Miller, 567 U.S. at ___, 132 S.
       Ct. at 2469)).
¶ 35       We believe that this third approach is most consistent with the Court’s analysis in Miller.
       We acknowledge that the factors enumerated by the South Carolina Supreme Court in Aiken
       track the language of Miller. Compare Miller, 567 U.S. at ___, 132 S. Ct. at 2468, with Aiken,
       765 S.E.2d at 577. However, the Miller Court made these statements in the context of
       explaining “the flaws of imposing mandatory life-without-parole sentences on juvenile
       homicide offenders.” Miller, 567 U.S. at ___, 132 S. Ct. at 2467. The Court explained that such
       sentencing schemes, “by their nature, preclude a sentencer from taking account of an
       offender’s age and the wealth of characteristics and circumstances attendant to it.” (Emphasis
       added.) Id. at ___, 132 S. Ct. at 2467.The Court went on to describe various characteristics and
       circumstances that mandatory sentencing schemes “preclude[ ]” and “prevent[ ]” sentencing
       courts from considering. Id. at ___, 132 S. Ct. at 2468. In announcing its holding, however, the
       Court stated only that “a judge or jury must have the opportunity to consider mitigating
       circumstances” (id. at ___, 132 S. Ct. at 2475) and that its holding would “require [sentencers]
       to take into account how children are different, and how those differences counsel against”
       imposing a sentence of life without parole (id. at ___, 132 S. Ct. at 2469).
¶ 36       Our conclusion that Miller did not require sentencing courts to consider an enumerated set
       of factors is strengthened by the Court’s recent decision in Montgomery v. Louisiana. That
       decision gave the Court an opportunity to clarify its holding in Miller. At issue in Montgomery
       was whether Miller should be applied retroactively. Montgomery, 577 U.S. at ___, 136 S. Ct. at


                                                   -9-
       725. In reaching the conclusion that Miller does apply retroactively, the Court first determined
       whether Miller announced “a new substantive rule that, under the Constitution, must be
       retroactive.” Id. at ___, 136 S. Ct. at 732. In making this determination, the Court explained
       that its holding in Miller “did more than require a sentencer to consider a juvenile offender’s
       youth.” Id. at ___, 136 S. Ct. at 734. Rather, the Court explained, “Miller determined that
       sentencing a child to life without parole is excessive for all but ‘ “the rare juvenile offender
       whose crime reflects irreparable corruption.” ’ ” Id. at ___, 136 S. Ct. at 734 (quoting Miller,
       567 U.S. at ___, 132 S. Ct. at 2469, quoting Roper, 543 U.S. at 573). As such, the Court stated,
       its holding in Miller “rendered life without parole an unconstitutional penalty for” juvenile
       offenders whose crimes do not reflect irreparable corruption. Id. at ___, 136 S. Ct. at 734.
¶ 37       The Montgomery Court acknowledged that the holding of Miller “has a procedural
       component.” Id. at ___, 136 S. Ct. at 734. The Court explained that this procedural
       component–a “hearing where ‘youth and its attendant characteristics’ are considered as
       sentencing factors”–is necessary to effectuate Miller’s substantive holding by enabling
       sentencing courts “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). The Court then discussed “the degree of procedure Miller mandated in order to
       implement its substantive guarantee.” Id. The Court noted that “Miller did not require trial
       courts to make a finding of fact regarding a child’s incorrigibility.” Id. at ___, 136 S. Ct. at 735.
       The Court explained that it did not require such a finding because in announcing new
       substantive rules of constitutional law, the Court “is careful to limit the scope of any attendant
       procedural requirement to avoid intruding more than necessary upon the States’ sovereign
       administration of their criminal justice systems.” Id. at ___, 136 S. Ct. at 735.
¶ 38       We acknowledge that the Montgomery Court’s statements regarding the procedure
       mandated by Miller were dicta. The defendant in Montgomery was sentenced pursuant to a
       mandatory sentencing scheme. Id. at ___, 136 S. Ct. at 726. Thus, the Court was not called
       upon to consider whether the procedure followed by the sentencing court was adequate to
       comport with the requirement of Miller. Nevertheless, these statements provide useful
       guidance in interpreting Miller. The Montgomery Court’s statements regarding its intention to
       limit the scope of any procedural requirement lead us to conclude that the Court did not intend
       to require sentencing courts to make findings related to specific enumerated factors.
¶ 39       We reiterate that the Montgomery Court stated that the purpose of Miller’s procedural
       component is to separate those rare juvenile defendants who are incorrigible–and may
       therefore be sentenced to life in prison without parole–from those juvenile defendants whose
       crimes reflect their transient immaturity–who may not receive such a sentence. Id. at ___, 136
       S. Ct. at 734. For the reasons that follow, we find that the procedure followed here was
       adequate to serve this purpose and, as such, sufficient to comply with the requirements of
       Miller.
¶ 40       As we noted earlier, the defendant’s argument to the contrary focuses on the fact that the
       statutory factors in mitigation did not include the defendant’s age or any of the mitigating
       circumstances associated with youth that were discussed in Miller. See Ill. Rev. Stat. 1979, ch.
       38, ¶ 1005-5-3.1(a). However, it is important to emphasize that pursuant to case law,
       sentencing courts in Illinois were not limited to consideration of the statutory factors in
       mitigation. As our supreme court explained in 1977, a few years before the defendant in this
       case was sentenced, “A reasoned judgment as to the proper sentence to be imposed must be

                                                    - 10 -
       based upon the particular circumstances of each individual case.” People v. Perruquet, 68 Ill.
       2d 149, 154 (1977) (citing People v. Bolyard, 61 Ill. 2d 583, 589 (1975)). The court further
       explained that this “judgment depends upon many factors, including the defendant’s
       credibility, demeanor, general moral character, mentality, social environment, habits, and
       age.” (Emphases added.) Id. (citing People v. Dukett, 56 Ill. 2d 432, 452 (1974)). It is also
       worth noting that Illinois law has long recognized a “ ‘marked distinction’ ” between juveniles
       and adults. Leon Miller, 202 Ill. 2d at 341-42 (quoting People ex rel. Bradley v. Illinois State
       Reformatory, 148 Ill. 413, 423 (1894)). As such, existing law required the sentencing court to
       look beyond the statutory factors in mitigation and consider any mitigating circumstances,
       including the defendant’s age and social environment. The court thus had the opportunity to
       consider all the mitigating circumstances related to the defendant’s youth, as required in
       Miller. See Miller, 567 U.S. at ___, 132 S. Ct. at 2475.
¶ 41       Miller, however, requires not only that the sentencing court have the opportunity to
       consider these mitigating circumstances; it also requires that the court actually do so. See id. at
       ___, 132 S. Ct. at 2469. As the Supreme Court explained in Montgomery, this is necessary so
       that the sentencing court can determine whether the juvenile defendant is so irredeemably
       corrupt that a life sentence without the possibility of parole is constitutionally permissible. See
       Montgomery, 577 U.S. at ___, 136 S. Ct. at 734.
¶ 42       This brings us to the defendant’s second argument. He argues that the sentencing court did
       not, in fact, consider the mitigating circumstances of his youth. In support of this contention, he
       points to the court’s statement at the hearing that it found “no mitigating factors.” We believe
       this argument misconstrues the court’s statement. As we discussed earlier, the court stated that
       it had considered the statutory factors in aggravation and mitigation and found no mitigating
       factors. The court then went on to state that it considered the evidence in the PSI and the
       evidence presented at trial, as well as the arguments of counsel at the sentencing hearing. The
       evidence in the PSI included evidence related to the defendant’s youth and the mitigating
       features of youth, and defense counsel argued that the court should consider the defendant’s
       youth. Thus, we do not interpret the court’s statement as an indication that the court overlooked
       this important evidence.
¶ 43       As we discussed earlier, the PSI revealed that the defendant had a low IQ and was
       susceptible to being influenced by more intelligent peers. In addition, the court was aware of
       the defendant’s age. (We note that on the first page of the PSI, the defendant’s date of birth is
       mistakenly listed as August 20, 1960, instead of August 20, 1961. However, his birth date is
       accurately reflected elsewhere in the PSI and also on the warrant for the defendant’s arrest.
       Moreover, the prosecutor stated at the sentencing hearing that the defendant was ineligible for
       the death penalty only due to “an accident of birth.” Thus, the court was aware that the
       defendant was a juvenile at the time he committed the offense.) Although it is not clear from
       the court’s statements how much weight the court gave these mitigating factors, we presume
       that the court takes into account mitigating evidence that is before it. People v. Smith, 214 Ill.
       App. 3d 327, 339 (1991).
¶ 44       In this case, there was also ample aggravating evidence. The psychiatrist who evaluated the
       defendant concluded that the defendant was not severely impaired enough to be unable to
       differentiate right from wrong. It is also worth noting that the defendant turned 18 only five
       weeks after the murder. Thus, his age alone is less of a mitigating factor than it might be for a
       much younger defendant. See Miller, 567 U.S. at ___ n.8, 132 S. Ct. at 2469 n.8 (noting that

                                                   - 11 -
       the holding of Miller would require sentencing courts to consider differences among juvenile
       defendants, enabling courts to distinguish between, for example, the 14-year-old defendants in
       Miller and 17-year-olds who commit “the most heinous murders” (internal quotation marks
       omitted)).
¶ 45        The sentencing court considered the circumstances of the crime and the evidence presented
       at trial. See id. at ___, 132 S. Ct. at 2468 (noting that the circumstances of the offense are a
       relevant consideration). This evidence showed that the defendant actively participated in the
       robbery and murder of a defenseless 83-year-old woman. See Leon Miller, 202 Ill. 2d at 341.
       Moreover, the probation officer who prepared the report found that the defendant’s lack of
       remorse demonstrated that he had no potential to be rehabilitated. The defendant’s own
       statement at the hearing denying that he was previously convicted of murder provided
       additional evidence of his lack of remorse. In addition, the PSI included the defendant’s
       criminal record, which included three murder convictions over the course of three months as
       well as three juvenile delinquency adjudications, two of which were for serious felonies.
¶ 46        Defense counsel urged the court to consider the defendant’s youth and fashion a sentence
       that offered him a chance for rehabilitation. The court expressly found that the defendant had
       no rehabilitative potential. In the face of all this aggravating evidence, this finding does not
       indicate, without more, that the court failed to consider the mitigating evidence before it.
       Moreover, this is precisely the determination Miller requires sentencing courts to make. See
       Montgomery, 577 U.S. at ___, 136 S. Ct. at 735; Miller, 567 U.S. at ___, 132 S. Ct. at 2469. We
       conclude that the sentencing hearing in this case comported with the requirements of Miller.
¶ 47        Alternatively, the defendant argues that the holding of Miller should be extended to require
       a categorical bar against even discretionary sentences of natural life in prison without the
       possibility of parole for crimes committed by juveniles. Before addressing the merits of this
       contention, we must first address the State’s argument that this question is not properly before
       us.
¶ 48        The State argues that consideration of this question exceeds the scope of the supreme
       court’s mandate. See People v. Abraham, 324 Ill. App. 3d 26, 30 (2001) (citing People v.
       Craig, 313 Ill. App. 3d 104, 106 (2000), and People v. Bosley, 233 Ill. App. 3d 132, 137
       (1992)). We disagree. The supreme court directed us to reconsider our previous decision in
       light of its holding in Davis and “to determine if a different result is warranted.” People v.
       Holman, No. 115597 (Ill. Jan. 28, 2015) (supervisory order). As discussed previously, in light
       of Davis, we found it appropriate to consider the defendant’s constitutional challenge on its
       merits. Consideration of the defendant’s challenge on its merits necessarily includes
       consideration of all of his related arguments. See People v. Harris, 388 Ill. App. 3d 1007, 1013
       (2009) (rejecting a claim that the trial court exceeded the appellate court mandate by
       considering issues raised in amended pleadings filed after remand); Abraham, 324 Ill. App. 3d
       at 31 (explaining that “the obvious implication of [a] remand order” is for the case to “continue
       in an ordinary manner”). We will therefore address the defendant’s argument.
¶ 49        In support of his argument, the defendant points out that the Miller Court explicitly
       declined to decide whether the eighth amendment requires a categorical bar on sentences of
       life without parole for any juvenile defendant. The defendants there argued that such a
       categorical bar was constitutionally required, at least for defendants 14 or younger. The Court
       found it unnecessary to consider this alternative argument. Miller, 567 U.S. at ___, 132 S. Ct.
       at 2469. Likewise, although the Davis court stated that the “special status” of juvenile

                                                  - 12 -
       defendants recognized in Graham and Miller did not preclude a sentence of natural life without
       parole for all juveniles who actively participate in multiple murders, the court did not consider
       this question in the context of an argument for the extension of Miller. Davis, 2014 IL 115595,
       ¶ 45. Thus, the defendant is correct in asserting that the issue remains an open question.
       However, we are not persuaded by his contention that we must now expand the Court’s
       holding.
¶ 50        We reach this conclusion for two reasons. First, as we have discussed, both Montgomery
       and Miller explicitly state that, in rare instances, a sentence of natural life in prison without the
       possibility of parole will be appropriate for juvenile defendants. Montgomery, 577 U.S. at ___,
       136 S. Ct. at 734 (noting that “life without parole could be a proportionate sentence” for the
       rare juvenile defendant “whose crimes reflect irreparable corruption”); Miller, 567 U.S. at ___,
       132 S. Ct. at 2469 (stating that its holding does not foreclose sentencing courts from
       determining that such a sentence is appropriate).
¶ 51        Second, Illinois courts that have remanded cases for resentencing pursuant to
       Miller–including this court and our supreme court–have consistently indicated that a
       natural-life sentence might still be appropriate on remand so long as the court has the discretion
       to consider other sentences. See Davis, 2014 IL 115595, ¶ 43; Johnson, 2013 IL App (5th)
       110112, ¶ 24; Luciano, 2013 IL App (2d) 110792, ¶ 63; Morfin, 2012 IL App (1st) 103568,
       ¶ 59. We decline to depart from this interpretation. (We note that in Montgomery, the Supreme
       Court held that states could remedy Miller violations by allowing defendants serving life
       sentences for murders committed as juveniles to apply for parole, thereby making remand for
       new sentencing hearings unnecessary. Montgomery, 577 U.S. at ___, 136 S. Ct. at 736. This
       does not alter our conclusion.)
¶ 52        The defendant argues, however, that the holding of Miller should be extended because, as
       he correctly asserts, eighth amendment jurisprudence evolves to reflect changing social mores
       and “evolving standards of decency” (internal quotation marks omitted) (Graham, 560 U.S. at
       58; see also Leon Miller, 202 Ill. 2d at 339). We are not persuaded. The Supreme Court issued
       its decision in Miller less than four years ago. Its decision in Montgomery, which reaffirmed its
       reasoning in Miller, was issued just weeks ago. The defendant does not explain how societal
       standards of decency have evolved in this short time to require this court to embrace a more
       expansive view of what constitutes cruel and unusual punishment than the one adopted by the
       Supreme Court in these very recent cases.
¶ 53        For the foregoing reasons, we affirm the order of the trial court denying the defendant’s
       petition for leave to file a successive postconviction petition.

¶ 54       Affirmed.




                                                    - 13 -
