                                           2019 IL 122327



                                             IN THE
                                    SUPREME COURT
                                                 OF
                              THE STATE OF ILLINOIS




                                        (Docket No. 122327)

     THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DIMITRI BUFFER, Appellee.


                                    Opinion filed April 18, 2019.



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

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

            Justice Burke specially concurred, with opinion.



                                             OPINION

¶1           Defendant, Dimitri Buffer, filed a pro se postconviction petition pursuant to the
         Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). Defendant
         asserted that his 50-year prison sentence, imposed for a crime he committed when
         he was 16 years old, was unconstitutional as applied to him. The circuit court of
         Cook County summarily dismissed the petition. The appellate court reversed the
     dismissal, holding that defendant’s sentence, imposed without consideration of his
     youth and its attendant characteristics, violated the eighth amendment to the United
     States Constitution (U.S. Const., amend. VIII). The appellate court vacated
     defendant’s sentence and remanded the case to the circuit court for resentencing.
     2017 IL App (1st) 142931.

¶2       This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
     July 1, 2017). We now affirm the judgment of the appellate court, but on different
     grounds, and remand the cause to the circuit court for resentencing in accordance
     with section 5-4.5-105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105
     (West 2016)).


¶3                                    I. BACKGROUND

¶4       The appellate court has previously recited the details of defendant’s conviction
     and sentence. Therefore, we discuss only those facts and the procedural history that
     are pertinent to the issues raised in this appeal.

¶5       A jury found defendant guilty of four counts of first degree murder (720 ILCS
     5/9-1(a)(1), (a)(2) (West 2008)), and specifically found that defendant personally
     discharged a firearm that caused the victim’s death. Defendant was sentenced in
     July 2010. At that time, Illinois law prescribed a sentencing range of 20 to 60 years
     for first degree murder (730 ILCS 5/5-4.5-20(a) (West 2008)), and mandated a
     minimum 25-year additional prison term for personally discharging a firearm that
     caused the victim’s death (id. § 5-8-1(a)(1)(d)(iii)). The circuit court stated that it
     had “considered all of the relevant statutory requirements *** including but not
     limited to” the evidence at trial, the gravity of the offense, the presentence
     investigation report, to a limited extent the financial impact of incarceration, given
     defendant’s age and his lack of children or dependents, the evidence in aggravation
     and mitigation, potential substance abuse issues, treatment, the potential for
     rehabilitation, the possibility of alternative sentencing, defendant’s statement in
     allocution, the victim impact statement, and all hearsay at the sentencing hearing
     deemed relevant and reliable. The court merged the first degree murder counts and
     sentenced defendant to 25 years on the first degree murder conviction and 25 years
     for the mandatory firearm add-on, for an aggregate sentence of 50 years, followed
     by 3 years of mandatory supervised release.



                                               -2-
¶6       Defendant timely appealed. In June 2012, while defendant’s direct appeal was
     pending, the United States Supreme Court decided Miller v. Alabama, 567 U.S. 460
     (2012), which held that imposing on a juvenile offender a mandatory sentence of
     life without the possibility of parole, without consideration of the defendant’s
     youth and its attendant characteristics, violated the eighth amendment. Defendant
     filed a motion seeking leave to file a supplemental brief addressing the applicability
     of Miller to his 50-year sentence. The State objected, and the appellate court denied
     defendant leave to file the supplemental brief. The appellate court affirmed
     defendant’s conviction and sentence. People v. Buffer, 2012 IL App (1st)
     102411-U, leave to appeal denied, No. 115148 (Ill. Jan. 30, 2013). In March 2014,
     this court held that Miller applied retroactively to cases on collateral review. People
     v. Davis, 2014 IL 115595.

¶7       In May 2014, defendant filed the instant pro se postconviction petition in the
     circuit court. Relying on Miller, defendant argued that his 50-year sentence,
     imposed for a crime committed when he was a juvenile, violated the eighth
     amendment because it constituted a de facto life sentence. Defendant requested that
     the circuit court vacate his sentence and conduct a new sentencing hearing. On
     August 8, 2014, the circuit court summarily dismissed defendant’s postconviction
     petition as frivolous and patently without merit.

¶8      On September 5, 2014, defendant filed a notice of appeal from the circuit
     court’s summary dismissal of his postconviction petition. While defendant’s appeal
     was pending, the United States Supreme Court decided Montgomery v. Louisiana,
     577 U.S. ___, 136 S. Ct. 718 (2016), and agreed with the conclusion we reached in
     Davis that Miller applied retroactively to cases on collateral review. Id. at ___, ___,
     136 S. Ct. at 729, 736. Also during the pendency of defendant’s appeal, this court
     decided People v. Reyes, 2016 IL 119271 (per curiam), and extended Miller’s
     holding barring juveniles from mandatory natural life sentences to include
     mandatory de facto life sentences. Id. ¶ 9.

¶9        The appellate court reversed the summary dismissal of defendant’s
     postconviction petition. 2017 IL App (1st) 142931. The appellate court concluded
     that, (1) pursuant to Reyes, defendant’s 50-year sentence was a mandatory de facto
     life sentence and (2) the circuit court failed to consider defendant’s youth and its
     attendant characteristics in imposing sentence. Therefore, defendant’s sentence




                                              -3-
       violated the eighth amendment. Id. ¶¶ 63-64. The appellate court vacated
       defendant’s sentence and remanded his case to the circuit court for resentencing
       under the juvenile sentencing statute (730 ILCS 5/5-4.5-105 (West 2016)). 2017 IL
       App (1st) 142931, ¶¶ 67-69.

¶ 10       The State appeals to this court. We granted the John Marshall Law School’s
       Pro Bono Program & Clinic, and the Children and Family Justice Center et al.,
       leave to submit amicus curiae briefs in support of defendant. Ill. S. Ct. R. 345 (eff.
       Sept. 20, 2010).


¶ 11                                      II. ANALYSIS

¶ 12       This case comes before us in the context of a postconviction proceeding. The
       Post-Conviction Hearing Act provides a procedural mechanism through which
       criminal defendants can assert that their federal or state constitutional rights were
       substantially violated in their original trials or sentencing hearings. 725 ILCS
       5/122-1(a) (West 2014). A postconviction proceeding is not a substitute for a direct
       appeal but rather is a collateral attack on a prior conviction and sentence. The
       purpose of the proceeding is to allow inquiry into constitutional issues involved in
       the original conviction and sentence that have not been, and could not have been,
       adjudicated previously on direct appeal. People v. Harris, 224 Ill. 2d 115, 124
       (2007); People v. Peeples, 205 Ill. 2d 480, 509-10 (2002). Review of the circuit
       court’s dismissal of a postconviction petition is de novo. People v. Hodges, 234 Ill.
       2d 1, 9 (2009) (collecting cases).


¶ 13                               A. The Eighth Amendment

¶ 14       The State assigns error to the appellate court’s holding that defendant’s 50-year
       prison sentence violated the eighth amendment. The State contends that
       defendant’s sentence is constitutional as applied to him.

¶ 15      The eighth amendment prohibits, inter alia, “cruel and unusual punishments”
       (U.S. Const., amend. VIII) and applies to the states through the fourteenth
       amendment. Roper v. Simmons, 543 U.S. 551, 560 (2005) (collecting cases).
       “Inherent in that prohibition is the concept of proportionality.” People v. Holman,




                                               -4-
       2017 IL 120655, ¶ 33 (citing Graham v. Florida, 560 U.S. 48, 59 (2010)). The
       eighth amendment’s ban of excessive punishment flows from the basic precept that
       criminal punishment should be graduated and proportioned both to the offender and
       the offense. Miller, 567 U.S. at 469; Roper, 543 U.S. at 560; People v. Davis, 2014
       IL 115595, ¶ 18. A claim that punishment is constitutionally excessive is judged
       not by the standards of the past “but rather by those that currently prevail.” Atkins v.
       Virginia, 536 U.S. 304, 311 (2002). The United States Supreme Court has
       repeatedly instructed courts to look beyond history to “the evolving standards of
       decency that mark the progress of a maturing society” (Trop v. Dulles, 356 U.S. 86,
       101 (1958) (plurality opinion)) to determine whether a punishment is so
       disproportionate as to be cruel and unusual. See Miller, 567 U.S. at 469; Graham,
       560 U.S. at 58; Roper, 543 U.S. at 561; see also Davis, 2014 IL 115595, ¶ 18.

¶ 16       The United States Supreme Court has held that the eighth amendment prohibits:
       capital sentences for juveniles who commit murder (Roper, 543 U.S. at 578-79),
       mandatory life sentences for juveniles who commit nonhomicide offenses
       (Graham, 560 U.S. at 82), and mandatory life sentences for juveniles who commit
       murder (Miller, 567 U.S. at 489). Roper, Graham, and Miller established that
       “children are constitutionally different from adults for purposes of sentencing.” Id.
       at 471. The Court recognized three significant characteristics of juvenile offenders.
       First, juveniles lack maturity and a fully developed sense of responsibility, which
       leads to dangerous behavior that is careless, impulsive, and reckless. Second,
       juveniles are more vulnerable to negative influences and outside pressures, they
       have limited control over their own environment, and they lack the ability to
       extricate themselves from crime-producing settings. Third, juveniles are more
       capable of change than adults, and their actions are less likely to be evidence of
       irretrievable depravity. Id. (citing Roper, 543 U.S. at 569-70). Further, none of this
       analysis regarding “children—about their distinctive (and transitory) mental traits
       and environmental vulnerabilities—is crime-specific.” Id. at 473.

¶ 17       “Because juveniles have diminished culpability and greater prospects for
       reform, *** ‘they are less deserving of the most severe punishments.’ ” Id. at 471
       (quoting Graham, 560 U.S. at 68). Roper, Graham, and Miller emphasize “that the
       distinctive attributes of youth diminish the penological justifications for imposing
       the harshest sentences on juvenile offenders, even when they commit terrible
       crimes.” Id. at 472.




                                                -5-
¶ 18       Graham and Miller insist that “youth matters in determining the
       appropriateness of a lifetime of incarceration without the possibility of parole. ***
       [T]he characteristics of youth, and the way they weaken rationales for punishment,
       can render a life-without-parole sentence disproportionate.” Id. at 473. The
       mandatory penalty schemes in Miller prevented “the sentencer from taking account
       of these central considerations. By removing youth from the balance—by
       subjecting a juvenile to the same life-without-parole sentence applicable to an
       adult—[those] laws prohibit[ed] a sentencing authority from assessing whether the
       law’s harshest term of imprisonment proportionately punishes a juvenile offender.”
       Id. at 474. This contravenes the foundational principle “that imposition of a State’s
       most severe penalties on juvenile offenders cannot proceed as though they were not
       children.” Id.

¶ 19      The Court discussed some attendant characteristics of youth as follows:

          “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
          pressure 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
          477-78.

¶ 20      The Court in Miller declared:

              “We therefore hold that the 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 479.



                                               -6-
       “ ‘A State is not required to guarantee eventual freedom,’ but must provide ‘some
       meaningful opportunity to obtain release based on demonstrated maturity and
       rehabilitation.’ ” Id. (quoting Graham, 560 U.S. at 75).

¶ 21      In Miller, the Court declined to consider whether “the Eighth Amendment
       requires a categorical bar on life without parole for juveniles, or at least for those 14
       and younger.” Id. However, the Court reasoned:

           “[G]iven all we have said *** about children’s diminished culpability and
           heightened capacity for change, we think appropriate occasions for sentencing
           juveniles to the harshest possible penalty will be uncommon. That is especially
           so because of the great difficulty *** 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.’ [Citations.] 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. at 479-80.

¶ 22       This court held that Miller applied retroactively to cases on collateral review.
       Davis, 2014 IL 115595, ¶¶ 39, 42. The United States Supreme Court subsequently
       held likewise, concluding that Miller was a substantive constitutional rule that
       applied retroactively. Montgomery, 577 U.S. at ___, 136 S. Ct. at 736. In reaching
       this conclusion, the Court in Montgomery elaborated on its Miller decision.

¶ 23       Montgomery reiterated the premise that “ ‘children are constitutionally
       different from adults for purpose of sentencing.’ ” Id. at ___, 136 S. Ct. at 733
       (quoting Miller, 567 U.S. at 471). “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
       480).

¶ 24       Montgomery clarified that Miller established both a substantive and a
       procedural requirement. “Miller drew a line between children whose crimes reflect
       transient immaturity and those rare children whose crimes reflect irreparable
       corruption.” Id. at ___, 136 S. Ct. at 734. Even if a court considers a child’s age




                                                 -7-
       prior to sentencing the child to life in prison without parole, that sentence still
       violates the eighth amendment for a juvenile whose crime reflects “ ‘ ‘unfortunate
       yet transient immaturity.’ ’ ” Id. at ___, 136 S. Ct. at 734 (quoting Miller, 567 U.S.
       at 479, quoting Roper, 543 U.S. at 573). Miller held 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 479-80, quoting Roper, 543 U.S. at 573). Miller thereby rendered life
       without parole an unconstitutional penalty for that category of juvenile offenders
       whose crimes reflect the transient immaturity of youth. “As a result, Miller
       announced a substantive rule of constitutional law.” Id. at ___, 136 S. Ct. at 734.
       Miller’s procedural component “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. Such a hearing “is
       necessary to separate those juveniles who may be sentenced to life without parole
       from those who may not. [Citation.] The hearing does not replace but rather gives
       effect to Miller’s substantive holding ***.” Id. at ___, 136 S. Ct. at 735. Further,
       Miller’s substantive rule of constitutional law applies retroactively to cases on state
       court collateral review. Id. at ___, ___, 136 S. Ct. at 729, 736.

¶ 25       Eighth amendment jurisprudence continued to evolve. Approximately six
       months after the appellate court filed its opinion in the case at bar, this court
       decided Holman, 2017 IL 120655. We recognized in Holman that “Miller contains
       language that is significantly broader than its core holding. None of what the Court
       said is specific to only mandatory life sentences.” Id. ¶ 38. Surveying case law from
       other states, this court in Holman determined as follows:

          “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. [Citations.] We agree with that conclusion and hold that Miller
          applies to discretionary sentences of life without parole for juvenile
          defendants.” Id. ¶ 40.

¶ 26       In Reyes, 2016 IL 119271, decided within a year after Montgomery, this court
       held:




                                                -8-
              “A mandatory term-of-years sentence that cannot be served in one lifetime
          has the same practical effect on a juvenile defendant’s life as would an actual
          mandatory sentence of life without parole—in either situation, the juvenile will
          die in prison. Miller makes clear that a juvenile may not be sentenced to a
          mandatory, unsurvivable prison term without first considering in mitigation his
          youth, immaturity, and potential for rehabilitation. *** Accordingly, we hold
          that sentencing a juvenile offender to a mandatory term of years that is the
          functional equivalent of life without the possibility of parole constitutes cruel
          and unusual punishment in violation of the eighth amendment.” Id. ¶ 9.

¶ 27       Therefore, to prevail on a claim based on Miller and its progeny, a defendant
       sentenced for an offense committed while a juvenile must show that (1) the
       defendant was subject to a life sentence, mandatory or discretionary, natural or
       de facto, and (2) the sentencing court failed to consider youth and its attendant
       characteristics in imposing the sentence. See Holman, 2017 IL 120655, ¶ 40;
       Reyes, 2016 IL 119271, ¶ 9.


¶ 28                               B. De Facto Life Sentences

¶ 29       Before this court, the State urges us to decide when a prison sentence for a term
       of years imposed on a juvenile defendant is the functional equivalent of life without
       parole. Defendant suggests that if this court holds that his prison sentence is
       unconstitutional, “we need not decide anything more.” We decline defendant’s
       suggestion. “[C]lear, predictable, and uniform constitutional standards are
       especially desirable” in applying the eighth amendment. Roper, 543 U.S. at 594
       (O’Connor, J., dissenting). “Drawing [a] line *** is subject, of course, to the
       objections always raised against categorical rules. *** For the reasons we have
       discussed, however, a line must be drawn.” Id. at 574 (majority opinion). We
       choose to determine when a juvenile defendant’s prison term is long enough to be
       considered a de facto life sentence without parole.

¶ 30       The State contends that “experience and common sense compel the conclusion
       that a 50-year sentence for a juvenile offender is not ‘unsurvivable’ and thus is not
       prohibited for juvenile homicide offenders whose crimes reflect the transient
       immaturity of youth.” The State argues that “prison terms of less than 54 years for
       juvenile offenders are not functionally equivalent to life without parole.” In



                                               -9-
       support, the State points to several appellate court decisions that rejected Miller
       claims and reasoned that the shorter prison terms in those cases were not
       comparable to the harshest prison term barred by Miller and were “survivable.”
       See, e.g., People v. Perez, 2018 IL App (1st) 153629, ¶¶ 37-39 (53-year sentence,
       release at age 70); People v. Hoy, 2017 IL App (1st) 142596, ¶ 46 (52-year
       sentence, release at age 68); People v. Evans, 2017 IL App (1st) 143562, ¶¶ 15-18
       (90-year sentence, earliest release opportunity at age 62); People v. Applewhite,
       2016 Il App (1st) 142330, ¶¶ 14-16 (45-year sentence, release at age 62).

¶ 31       The State posits that a prison term of somewhere between 54 and 59 years for a
       juvenile offender “is functionally equivalent to life without parole.” Arguing that
       “defendants, prosecutors, and courts need to know the constitutional boundaries for
       sentencing juvenile homicide offenders,” the State asks this court “to decide as a
       matter of law when, within this 54-to-59-year range, a term of years for a juvenile
       offender is functionally equivalent to life without parole.” Defendant responds that
       the State’s “survivability” standard is “arbitrary, unjustified, and unworkable.” The
       parties disagree as to whether, or to what extent, actuarial tables and other statistical
       data support their respective arguments for and against “survivability.” Indeed, the
       parties disagree as to whether resort should be had to such statistics at all.

¶ 32       Courts have struggled to formulate an exact calculation of a de facto life
       sentence imposed on a juvenile that violates the eighth amendment pursuant to
       Miller and Montgomery. See, e.g., Perez, 2018 IL App (1st) 153629, ¶ 39
       (collecting cases and recognizing “disagreement as to what exactly constitutes a
       de facto life sentence for a juvenile”). In the case at bar, the appellate court
       correctly observed that the questions of what age constitutes a lifetime, how that
       age is determined, and who makes that determination remain unresolved. 2017 IL
       App (1st) 142931, ¶ 57.

¶ 33       Some courts have held simply that Miller is triggered whenever a court imposes
       a sentence on a juvenile that results in a geriatric release. Practically, and
       ultimately, the prospect of geriatric release does not provide a juvenile with a
       meaningful opportunity to demonstrate the maturity and rehabilitation required to
       obtain release and reenter society. State v. Zuber, 152 A.3d 197, 212-13 (N.J.
       2017); Bear Cloud v. State, 2014 WY 113, ¶ 33, 334 P.3d 132; State v. Null, 836
       N.W.2d 41, 71 (Iowa 2013). In the case at bar, the appellate court relied on this




                                                - 10 -
       reasoning to conclude that defendant’s 50-year prison sentence was an
       unconstitutional de facto life sentence. 2017 IL App (1st) 142931, ¶¶ 61-62.

¶ 34       We choose a different course, one already charted by the entity best suited to do
       so—the General Assembly. Of course, “ ‘the Constitution contemplates that in the
       end our own judgment will be brought to bear on the question’ ” of constitutionally
       excessive punishment. Atkins, 536 U.S. at 312 (quoting Coker v. Georgia, 433 U.S.
       584, 597 (1977)). However, the United States Supreme Court has “pinpointed that
       the ‘clearest and most reliable objective evidence of contemporary values is the
       legislation enacted by the country’s legislatures.’ ” Id. (quoting Penry v. Lynaugh,
       492 U.S. 302, 331 (1989)). The Court has observed as follows:

          “[T]he fixing of prison terms for specific crimes involves a substantive
          penological judgment that, as a general matter, is ‘properly within the province
          of legislatures, not courts.’ [Citation.] Determinations about the nature and
          purposes of punishment for criminal acts implicate difficult and enduring
          questions respecting the sanctity of the individual, the nature of law, and the
          relation between law and the social order. *** The efficacy of any sentencing
          system cannot be assessed absent agreement on the purposes and objectives of
          the penal system. And the responsibility for making these fundamental choices
          and implementing them lies with the legislature.” Harmelin v. Michigan, 501
          U.S. 957, 998 (1991) (Kennedy, J., concurring in part and concurring in the
          judgment, joined by O’Connor and Souter, JJ.).

       Accordingly: “Reviewing courts *** should grant substantial deference to the
       broad authority that legislatures necessarily possess in determining the types and
       limits of punishments for crimes ***.” Solem v. Helm, 463 U.S. 277, 290 (1983).

¶ 35       This conclusion accords with Illinois law. “We have held that the nature,
       character and extent of the penalties for a particular criminal offense are matters for
       the legislature, which may prescribe definite terms of imprisonment, or specific
       amounts as fines or fix the minimum and maximum limits thereof.” People v.
       Smith, 14 Ill. 2d 95, 97 (1958); see People v. Steppan, 105 Ill. 2d 310, 319 (1985);
       People v. Taylor, 102 Ill. 2d 201, 206 (1984) (“It is within the legislative province
       to define offenses and determine the penalties required to protect the interests of
       our society.”). We generally defer to the legislature in the sentencing arena because
       the legislature, institutionally, is better equipped to gauge the seriousness of various



                                                - 11 -
       offenses and to fashion sentences accordingly. People v. Sharpe, 216 Ill. 2d 481,
       487 (2005); People v. Koppa, 184 Ill. 2d 159, 171 (1998). Also, when statutes are
       enacted after judicial opinions are published, it must be presumed that the
       legislature acted with knowledge of the prevailing case law. People v. Espinoza,
       2015 IL 118218, ¶ 34; People v. Hickman, 163 Ill. 2d 250, 262 (1994).

¶ 36        Relevant to the instant case, the United States Supreme Court decided Miller in
       2012, and this court decided Davis in 2014. In February 2015, House Bill 2471 was
       introduced in the General Assembly and ultimately enacted as Public Act 99-69,
       adding section 5-4.5-105 to the Unified Code of Corrections. Pub. Act 99-69 (eff.
       Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105). This statute provides a new
       sentencing scheme for defendants under the age of 18 when they committed their
       offenses. Before any sentence is imposed, subsection (a) requires the sentencing
       court to consider several “additional factors in mitigation in determining the
       appropriate sentence.” 730 ILCS 5/5-4.5-105(a) (West 2016). This list is taken
       from and is consistent with Miller’s discussion of a juvenile defendant’s youth and
       its attendant characteristics. See Holman, 2017 IL 120655, ¶¶ 45-46 (citing Miller,
       567 U.S. at 477-78). Further, subsections (b) and (c) provide that the imposition of
       firearm enhancements is a matter of discretion with the court. 730 ILCS
       5/5-4.5-105(b), (c) (West 2018).

¶ 37       Significantly, subsection (c) of the new juvenile sentencing statute provides in
       pertinent part as follows:

              “(c) Notwithstanding any other provision of law, if the defendant is
          convicted of first degree murder and would otherwise be subject to sentencing
          under clause (iii), (iv), (v), or (vii) of subparagraph (c) of paragraph (1) of
          subsection (a) of Section 5-8-1 of this Code based on the category of persons
          identified therein, the court shall impose a sentence of not less than 40 years of
          imprisonment.” Id. § 5-4.5-105(c).

¶ 38       It must be remembered that the sentencing ranges for first degree murder for an
       adult offender are 20 to 60 years (id. § 5-4.5-20), 60 to 100 years with a finding of
       various aggravating factors (id. § 5-8-2), and natural life imprisonment with a
       finding of specified aggravating factors (id. §§ 5-4.5-20, 5-8-1).




                                              - 12 -
¶ 39       However, the General Assembly has determined that the specified first degree
       murders that would justify natural life imprisonment for adult offenders would
       warrant a mandatory minimum sentence of 40 years for juvenile offenders. The
       legislature evidently believed that this 40-year floor for juvenile offenders who
       commit egregious crimes complies with the requirements of Miller.

¶ 40       In determining when a juvenile defendant’s prison term is long enough to be
       considered de facto life without parole, we choose to draw a line at 40 years. This
       specific number does not originate in court decisions, legal literature, or statistical
       data. It is not drawn from a hat. Rather, this number finds its origin in the entity best
       suited to make such a determination—the legislature. The Supreme Court has made
       clear that “[i]t is for the State, in the first instance, to explore the means and
       mechanisms for compliance” with eighth amendment mandates pertaining to
       juvenile sentencing. Graham, 560 U.S. at 75. As this court recognized long ago,
       “ ‘[g]reat constitutional provisions must be administered with caution. *** It must
       be remembered that legislatures are ultimate guardians of the liberties and welfare
       of the people in quite as great a degree as the courts.’ ” People ex rel. Douglas v.
       Barrett, 370 Ill. 464, 467 (1939) (quoting Missouri, Kansas & Texas Ry. Co. v.
       May, 194 U.S. 267, 270 (1904)).

¶ 41       Extrapolating from this legislative determination, a prison sentence of 40 years
       or less imposed on a juvenile offender provides “ ‘some meaningful opportunity to
       obtain release based on demonstrated maturity and rehabilitation.’ ” Miller, 567
       U.S. at 479 (quoting Graham, 560 U.S. at 75). We hereby conclude that a prison
       sentence of 40 years or less imposed on a juvenile offender does not constitute a
       de facto life sentence in violation of the eighth amendment.

¶ 42       In the case at bar, defendant committed an offense, at age 16, that subjected him
       to a legislatively mandated minimum sentence of 45 years and for which he
       received a sentence of 50 years. Because defendant’s sentence was greater than 40
       years, we conclude that defendant received a de facto life sentence. We also
       conclude that the circuit court failed to consider defendant’s youth and its attendant
       characteristics in imposing that sentence. Therefore, we hold that defendant’s
       sentence violates the eighth amendment. Accordingly, we vacate defendant’s
       sentence as unconstitutional pursuant to Miller, Montgomery, Reyes, and Holman.




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¶ 43                                         C. Remedy

¶ 44      Lastly, the parties disagree as to the appropriate remedy. The State argues, as it
       argued before the appellate court, that the appropriate remedy is not to remand for a
       new sentencing hearing but rather to remand to the circuit court only to advance
       postconviction proceedings to the second stage. Defendant argues that the
       appropriate remedy is a new sentencing hearing. We agree with defendant.

¶ 45       The procedural framework of the Post-Conviction Hearing Act (725 ILCS
       5/122-1 et seq. (West 2014)) is familiar. The Act provides a three-stage process for
       the adjudication of postconviction petitions. At the first stage, the circuit court
       determines whether the petition is “frivolous or is patently without merit.” Id.
       § 122-2.1(a)(2). If the petition is not dismissed at the first stage, it advances to the
       second stage, where the court may appoint counsel for an indigent defendant and
       the State may file responsive pleadings. Id. §§ 122-4, 122-5. If the petition makes a
       substantial showing of a constitutional violation, the petition proceeds to the third
       stage, where the court conducts an evidentiary hearing. Id. § 122-6; see People v.
       Tate, 2012 IL 112214, ¶¶ 9-10; Harris, 224 Ill. 2d at 125-26. Where the first-stage
       summary dismissal of a postconviction petition is reversed on appeal, the usual
       remedy is to remand for the advancement of the postconviction proceedings to the
       second stage. See, e.g., People v. Allen, 2015 IL 113135, ¶¶ 45-46; Tate, 2012 IL
       112214, ¶ 26.

¶ 46       However, the record before us does not require factual development. All of the
       facts and circumstances to decide defendant’s claim are already in the record. See,
       e.g., Holman, 2017 IL 120655, ¶ 32. While the circuit court stated that it
       “considered all of the relevant statutory requirements,” the record does not indicate
       that the court considered defendant’s youth and its attendant characteristics. See id.
       ¶ 46 (citing Miller, 567 U.S. at 477-78). Accordingly, we earlier held that
       defendant’s 50-year prison sentence, imposed for a crime he committed while a
       juvenile, violated the eighth amendment. This holding applies retroactively and is
       cognizable in defendant’s postconviction proceeding. See Montgomery, 577 U.S. at
       ___, ___, 136 S. Ct. at 729, 736.

¶ 47       Based on the particular issue raised in this appeal and in the interests of judicial
       economy, we agree with the appellate court that the proper remedy is to vacate
       defendant’s sentence and to remand for a new sentencing hearing. See, e.g., Davis,



                                                - 14 -
       2014 IL 115595, ¶ 1. Further, the parties correctly agree that defendant is entitled
       on remand to be sentenced under the scheme prescribed by section 5-4.5-105 of the
       Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)). See Holman,
       2017 IL 120655, ¶ 45; Reyes, 2016 IL 119271, ¶ 12; People v. Smolley, 2018 IL
       App (3d) 150577, ¶¶ 21-22.


¶ 48                                   III. CONCLUSION

¶ 49       For the foregoing reasons, the judgment of the appellate court is affirmed, and
       the cause is remanded to the circuit court of Cook County for resentencing in
       accordance with section 5-4.5-105 of the Unified Code of Corrections (730 ILCS
       5/5-4.5-105 (West 2016)).


¶ 50      Appellate court judgment affirmed.

¶ 51      Sentence vacated.

¶ 52      Cause remanded with directions.


¶ 53      JUSTICE BURKE, specially concurring:

¶ 54       In Miller v. Alabama, 567 U.S. 460 (2012), the United State Supreme Court
       held that a mandatory sentence of life without the possibility of parole imposed on a
       juvenile offender violates the eighth amendment prohibition against cruel and
       unusual punishment. The Miller court did not categorically ban life sentences for
       juveniles. Rather, under Miller, there are three parameters that, when combined,
       will render a juvenile’s sentence unconstitutional: (1) the sentence imposed must
       be a life sentence, (2) the sentence imposed must be mandatory, affording no
       discretion to the sentencing court, and (3) there must be no possibility for parole.
       These three parameters must be present before a sentence imposed on a juvenile
       will violate the eighth amendment pursuant to Miller.

¶ 55       In People v. Reyes, 2016 IL 119271 (per curiam), this court addressed one of
       these parameters. Although the Supreme Court has not yet weighed in on the issue,
       we concluded in Reyes that the Miller rule also applies to mandatory de facto life




                                              - 15 -
       sentences without the possibility of parole. Id. ¶ 10. In Reyes, the defendant was
       sentenced to a mandatory term of 97 years, with the earliest possible release after
       89 years. Id. ¶ 2. The State conceded that the defendant’s sentence was
       unquestionably the functional equivalent of a mandatory life sentence without the
       possibility of parole and, therefore, unconstitutional under Miller. Id. ¶ 10.
       Accordingly, we remanded for resentencing. Id. ¶ 4. Under the circumstances,
       however, we did not need to determine how long a term-of-years sentence had to be
       before it would be deemed the equivalent of a life sentence. The State asks us to
       make that determination now.

¶ 56       Defendant contends that we should consider whether a sentence violates the
       eighth amendment on a case by case basis. However, I agree with the majority that
       “ ‘[c]lear, predictable, and uniform constitutional standards are especially
       desirable’ in applying the eighth amendment” (supra ¶ 29 (quoting Roper v.
       Simmons, 543 U.S. 551, 594 (2005) (O’Connor, J., dissenting))). Thus, it is
       appropriate that we decide what mandatory term-of-years sentence without the
       possibility of parole constitutes a de facto life sentence pursuant to Miller. I do not
       agree, however, with the majority’s resolution of this issue.

¶ 57       In Reyes, we held that a term-of-years sentence imposed on a juvenile will
       violate the eighth amendment if, statistically speaking, the sentence is the
       equivalent of a life sentence. And, as the State correctly points out in its brief, under
       the precepts of Miller a mandatory term-of-years sentence without the possibility of
       parole is the equivalent of a life sentence if the sentence virtually guarantees that
       the juvenile will die in prison without any opportunity for release. See also People
       v. Gipson, 2015 IL App (1st) 122451, ¶¶ 66-67 (15-year-old defendant’s sentence
       of 52 years, with earliest possible release at age 60, was not a de facto life sentence
       because, according to the defendant, his life expectancy was 67.8 years and
       “[a]lthough defendant’s years in society will be precious few, the United States
       Supreme Court has drawn the eighth amendment line at life without the possibility
       of parole and we cannot cross that line”). Thus, properly framed, the determination
       of what constitutes a de facto life sentence is essentially a mathematical
       calculation.

¶ 58        Nonetheless, in deciding what mandatory term-of-years sentence is a de facto
       life sentence, the majority does not engage in a statistical analysis of the life span of




                                                - 16 -
       juveniles sentenced to life imprisonment or make any attempt to determine what
       term-of-years sentence would exceed the minor’s life expectancy and virtually
       guarantee that the juvenile will die in prison without any opportunity to be released.
       Nor does the majority consider the reasoning of other courts that have grappled
       with resolving this admittedly difficult calculation. Instead, the majority chooses “a
       different course, one already charted by the entity best suited to do so—the General
       Assembly.” Supra ¶ 34. This is where, I believe, the majority goes wrong.

¶ 59       To justify deferring to the legislature, the majority cites case law that stands for
       the well-accepted tenet that penological judgments, such as the fixing of
       appropriate prison terms for specific crimes and determining the types and limits of
       punishments that may be imposed, are properly within the province of the
       legislature. But making a penological judgment based on contemporary values is
       not what is at issue here. In the appeal before us, we are not asked to decide what
       the proper punishment should be for specific crimes committed by juveniles.
       Rather, the only question before us is what constitutes a de facto life sentence.

¶ 60        The majority goes even further astray when it relies on section 5-4.5-105 of the
       Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)) to reach the
       conclusion that a prison term of 40 years “is long enough to be considered de facto
       life without parole.” Supra ¶ 40. To be sure, section 5-4.5-105 was enacted by the
       legislature in response to Miller and provides, prospectively, a new sentencing
       scheme for defendants who were under 18 years of age when they committed their
       crimes. As the majority notes, subsection (a) of the statute requires a sentencing
       court to consider in mitigation the factors listed in Miller, including the defendant’s
       youth and circumstances attendant to youth, as well as the unique characteristics of
       the offender and the offense; subsection (b) makes the imposition of sentencing
       enhancements based on the possession and/or use of a firearm in the commission of
       the offense discretionary rather than mandatory; and subsection (c) requires a
       sentencing court to impose on a juvenile a minimum sentence of 40 years’
       imprisonment for certain egregious first degree murder offenses that would warrant
       a sentence of natural life imprisonment for an adult offender. Supra ¶¶ 36-37
       (citing 730 ILCS 5/5-4.5-105(a), (b), (c) (West 2016)). 1 The majority, however,

           1
            Since the enactment of this new sentencing scheme, any sentence imposed on a juvenile
       offender should not run afoul of Miller. This is because the Miller court did not foreclose the
       possibility of imposing a life sentence, actual or de facto, as long as that sentence was not mandatory




                                                       - 17 -
       mistakenly relies on this statute to make an unjustified leap. It holds that a sentence
       greater than 40 years is a de facto life sentence because “[t]he legislature evidently
       believed that this 40-year floor for juvenile offenders who commit egregious
       crimes complies with the requirements of Miller.” Supra ¶ 39. This analysis is
       faulty for several reasons.

¶ 61       First, when the legislature enacted section 5-4.5-105(c), it did not select 40
       years as the minimum sentence to be imposed based on its consideration of the life
       expectancy of juveniles or because it found a sentence greater than 40 years would
       be a de facto life sentence and unconstitutional under Miller. Rather, it merely
       decided that a sentence of at least 40 years was necessary to punish a juvenile
       offender for committing the specified types of murder listed in that subsection.

¶ 62       Second, the majority claims to be “extrapolating” from the legislature’s
       requirement in section 5-4.5-105(c), that a minimum sentence of 40 years must be
       imposed for certain offenses, to find that 40 years is the maximum sentence that
       may be imposed without becoming a de facto life sentence. The majority provides
       no explanation for this maneuver.

¶ 63       Third, and perhaps most importantly, the majority clearly has it backwards. It is
       this court’s responsibility to decide whether the legislature’s sentencing scheme is
       constitutional, not the other way around. Yet the majority eschews its responsibility
       and relies solely on section 5-4.5-105(c) to make the constitutional determination
       that any term of imprisonment greater than 40 years is a de facto life sentence,
       stating, “This specific number does not originate in court decisions, legal literature,
       or statistical data. It is not drawn from a hat. Rather, this number finds its origin in
       the entity best suited to make such a determination—the legislature.” Supra ¶ 40.
       Not only is the legislature not the “entity best suited” to determine whether its own


       and the sentencing court had the opportunity to make a thorough assessment of the defendant, his
       youth, and other attendant circumstances before imposing sentence.
            In addition, Governor Pritzker recently signed into law Public Act 100-1182 (eff. June 1, 2019),
       which added section 5-4.5-110 to the Unified Code of Corrections (730 ILCS 5/5-4.5-110). This
       new law provides that, for most crimes, a person who was under the age of 21 when the crime was
       committed and is given a lengthy term-of-years sentence will have the ability to petition for parole
       after serving 10 years. If the conviction was for first degree murder or aggravated criminal sexual
       assault, the person will be eligible to petition for parole review after serving 20 years. The law
       applies to sentences imposed after the effective date of June 1, 2019.




                                                      - 18 -
       statutory scheme is unconstitutional, it is the wrong entity to make that
       determination.

¶ 64       To demonstrate the flaw in the majority’s reasoning, assume for the moment
       that a minor committed one of the offenses listed in section 5-4.5-105(c) and the
       sentencing court imposed the mandatory minimum sentence of 40 years. The minor
       then appealed, arguing that his sentence is unconstitutional pursuant to Miller. How
       would we address this appeal? Would we simply find that the legislature evidently
       believed that a minimum 40-year sentence complies with Miller and, therefore, it
       must be constitutional? If so, this would be quite extraordinary and obviously
       incorrect. Yet this is exactly what the majority is saying here.

¶ 65       In my view, the answer to the question “what constitutes a de facto life
       sentence” is a calculation—it is when the defendant’s age at the earliest projected
       time of release exceeds an incarcerated minor’s average life expectancy. See 2017
       IL App (1st) 142931, ¶ 62; People v. Sanders, 2016 IL App (1st) 121732-B, ¶ 26;
       Gipson, 2015 IL App (1st) 122451, ¶ 67. I recognize that life expectancy is a
       complex composite of several variables that differ on an individual basis. See 2017
       IL App (1st) 142931, ¶ 57. Thus, any life expectancy determination will necessarily
       be somewhat arbitrary. Nevertheless, using all of the information available to us at
       this time, I believe it is possible to arrive at a number that reasonably reflects the
       average life expectancy of a minor who is incarcerated for a lengthy period of time.

¶ 66       The appellate court below, like the Sanders court, used a life expectancy of 64
       years to calculate a de facto life sentence, relying on the United States Sentencing
       Commission Preliminary Quarterly Data Report (2012 Preliminary Report),
       http://www.lb7.uscourts.gov/documents/USSC_Quarter_Report_3rd_12_
       Final.pdf [https://perma.cc/GX2C-AU53]. However, another resource has shown
       that the 64-year life expectancy referenced in the Quarterly Report was formulated
       by adding 39 years—a number used, for statistical purposes, to represent a life
       sentence of a person incarcerated in federal prison—to the median age of federal
       prisoner at the time of sentencing (25 years). See Deborah LaBelle, Michigan Life
       Expectancy Data for Youth Serving Natural Life Sentences (2013), available at
       http://www.lb7.uscourts.gov/documents/17-12441.pdf           [https://perma.cc/9PSY-
       3B6Q]. Thus, the accuracy of the 64-year life expectancy figure with regard to
       minors is suspect, particularly when one takes into account that it is generally




                                               - 19 -
       recognized that the life expectancy of a minor sentenced to a lengthy prison term is
       further diminished. In fact, according to the article by LaBelle cited above, based
       on a review of Michigan data, the average life expectancy for a child sentenced to
       natural life may be as little as 50.6 years.

¶ 67       Because determining life expectancy is not a precise science, I would err on the
       side of caution and find that an incarcerated minor who is sentenced to a lengthy
       prison term has a life expectancy of 55 years. Thus, any sentence imposed on a
       minor that would result in the minor’s earliest release from prison when he or she is
       55 years old or more would be a de facto life sentence.

¶ 68       In the present case, defendant was sentenced to 50 years’ imprisonment for a
       crime he committed when he was 16 years old. Taking judicial notice of the Illinois
       Department of Corrections website, defendant’s earliest opportunity for release is
       May 12, 2059, at which time he would be 66 years old. See 2017 IL App (1st)
       142931, ¶ 62. Applying the formula above, defendant’s sentence is a de facto life
       sentence and, therefore, violates the eighth amendment of our United States
       Constitution. Thus, like the majority, I would affirm the appellate court’s judgment
       and remand the matter for resentencing.




                                              - 20 -
