                                     2016 IL 119271



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 119271)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                        ZACHARY A. REYES, Appellant.


                            Opinion filed September 22, 2016.



     PER CURIAM



                                        OPINION

¶1       The defendant, Zachary A. Reyes, was charged by indictment in the circuit
     court of Kendall County with the first degree murder of Jason Ventura and the
     attempted murders of Eduardo Gaytan and Jorge Ruiz. The indictment alleged that
     on December 20, 2009, defendant personally discharged a firearm in the direction
     of a vehicle occupied by Ventura, Gaytan, and Ruiz and that defendant’s actions
     caused the death of Ventura as well as serious injury to Gaytan. Defendant, who
     was 16 years old at the time of the shootings, was prosecuted as an adult (see 705
     ILCS 405/5-130(1)(a)(i) (West 2008)). Following a jury trial, he was found guilty
     of the charged offenses.

¶2        At defendant’s sentencing hearing, the trial court imposed the mandatory
     minimum sentence of 45 years’ imprisonment for the first degree murder
     conviction. This sentence consisted of the minimum 20-year sentence for murder
     (see 730 ILCS 5/5-4.5-20(a) (West 2008) (providing a range of 20 to 60 years)),
     plus a minimum 25-year mandatory firearm enhancement (see 730 ILCS
     5/5-8-1(a)(1)(d)(iii) (West 2008) (providing for an add-on of 25 years to natural
     life)). The court also sentenced defendant to 26 years’ imprisonment for each of the
     two attempted murder convictions. The 26-year sentences consisted of the
     minimum 6-year sentence for attempted murder (see 730 ILCS 5/5-4.5-25(a) (West
     2008) (providing range of 6 to 30 years)), plus a 20-year mandatory firearm
     enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2008)). In addition, the trial
     court determined that, pursuant to section 5-8-4(d)(1) of the Unified Code of
     Corrections (730 ILCS 5/5-8-4(d)(1) (West 2008)), all of defendant’s sentences
     were required to run consecutively to each other. As a result, defendant was
     sentenced to a mandatory minimum aggregate sentence of 97 years’ imprisonment.
     Further, in light of the truth in sentencing statute (730 ILCS 5/3-6-3(b)(i)-(ii) (West
     2008)), defendant was required to serve a minimum of 89 years of the 97-year
     sentence imposed before he would be eligible for release. Defendant appealed.

¶3       In the appellate court, defendant argued that his sentence was unconstitutional
     pursuant to Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012). In Miller, the
     Supreme Court held that the eighth amendment to the United States Constitution
     “forbids a sentencing scheme that mandates life in prison without possibility of
     parole for juvenile offenders.” Id. at ___, 132 S. Ct. at 2469. Citing its earlier
     decisions in Roper v. Simmons, 543 U.S. 551 (2005) (holding it unconstitutional to
     impose capital punishment for crimes committed while under the age of 18), and
     Graham v. Florida, 560 U.S. 48 (2010) (holding it unconstitutional to sentence
     juvenile offenders to life imprisonment without possibility of parole for
     nonhomicide offenses), the Court in Miller explained that “children are
     constitutionally different from adults for purposes of sentencing” (id. at ___, 132 S.
     Ct. at 2464) and that “in imposing a State’s harshest penalties, a sentencer misses
     too much if he treats every child as an adult” (id. at ___, 132 S. Ct. at 2468). The
     Supreme Court emphasized that a mandatory sentencing scheme for juveniles




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     prevents the trial court from considering numerous mitigating factors, such as the
     juvenile offender’s age and attendant characteristics; the juvenile’s family and
     home environment and the circumstances of the offense, including the extent of the
     juvenile’s participation and the effect of any familial or peer pressure; the
     juvenile’s possible inability to interact with police officers or prosecutors or
     incapacity to assist his or her own attorneys; and “the possibility of rehabilitation
     even when the circumstances most suggest it.” Id. at ___, 132 S. Ct. at 2468. The
     Court concluded:

        “[A] judge or jury must have the opportunity to consider mitigating
        circumstances before imposing the harshest possible penalty for juveniles. By
        requiring that all children convicted of homicide receive lifetime incarceration
        without possibility of parole, regardless of their age and age-related
        characteristics and the nature of their crimes, the mandatory sentencing
        schemes before us violate this principle of proportionality, and so the Eighth
        Amendment’s ban on cruel and unusual punishment.” Id. at ___, 132 S. Ct. at
        2475.

¶4        The Court clarified that its holding was not a categorical prohibition of
     life-without-parole sentences for juvenile murderers. Id. at ___, 132 S. Ct. at 2469.
     Rather, the Court’s holding required that life-without-parole sentences be based on
     judicial discretion rather than statutory mandates. Id.

¶5       In the appellate court, defendant acknowledged that he had not received an
     actual life sentence without possibility of parole. However, he contended that the
     various sentencing statutes to which he was subject had combined in such a way so
     as to eliminate all judicial discretion and impose on him a mandatory prison term
     that could not be served within one lifetime, i.e., a de facto natural life sentence
     without possibility of parole. Defendant maintained that the principles of Miller
     were applicable to such a de facto life sentence and, therefore, his sentence was
     unconstitutional.

¶6       The appellate court rejected defendant’s argument. 2015 IL App (2d) 120471.
     The appellate court declined to extend the eighth amendment rationale in Miller to
     the facts of this case, concluding that Miller applied only to actual sentences of life
     without the possibility of parole and not to aggregate consecutive sentences that
     amounted to a de facto life term. Id. ¶¶ 23-25. The appellate court therefore



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     affirmed defendant’s sentence. We granted defendant’s petition for leave to appeal.
     Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).

¶7       In this court, defendant again argues that he has received a de facto mandatory
     life sentence without the possibility of parole and that such a sentence is
     unconstitutional under Miller. Defendant therefore contends that his sentence
     should be vacated and the cause remanded for a new sentencing hearing.

¶8       The State, in response, has filed a brief in which it concedes that the Miller
     rationale applies to a mandatory term of years that “indisputably amount[s]” to life
     imprisonment without the possibility of parole for a single offense or for offenses
     committed in a single course of conduct. We agree.

¶9       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. As one court has stated:

        “the teachings of the Roper/Graham/Miller trilogy require sentencing courts to
        provide an individualized sentencing hearing to weigh the factors for
        determining a juvenile’s ‘diminished culpability and greater prospects for
        reform’ when, as here, the aggregate sentences result in the functional
        equivalent of life without parole. To do otherwise would be to ignore the reality
        that lengthy aggregate sentences have the effect of mandating that a juvenile
        ‘die in prison even if a judge or jury would have thought that his youth and its
        attendant characteristics, along with the nature of his crime, made a lesser
        sentence (for example, life with the possibility of parole) more appropriate.’
        Miller, 567 U.S. at ___, 132 S. Ct. at 2460. Such a lengthy sentence ‘ “means
        denial of hope; it means that good behavior and character improvement are
        immaterial; it means that whatever the future might hold in store for the mind
        and spirit of [the juvenile convict], he will remain in prison for the rest of his
        days.” ’ Graham, 560 U.S. at 70, 130 S. Ct. at 2027 (quoting Naovarath v.
        State, 105 Nev. 525, 779 P.2d 944, 944 (1989)). That is exactly the result that
        Miller held was unconstitutional. Miller, 567 U.S. at ___, 132 S. Ct. at 2460.”
        Bear Cloud v. State, 2014 WY 113, ¶ 33, 334 P.3d 132 (Wyo. 2014).



                                            -4-
       See also, e.g., Brown v. State, 10 N.E.3d 1, 7-8 (Ind. 2014) (150-year sentence
       “ ‘forswears altogether the rehabilitative ideal’ ” as stated in Miller, 567 U.S. at
       ___, 132 S. Ct. at 2465 (internal quotation marks omitted)); Fuller v. State, 9
       N.E.3d 653, 657-58 (Ind. 2014) (same); State v. Null, 836 N.W.2d 41 (Iowa 2013)
       (Miller applies to a sentence that amounts to the functional equivalent of life
       without parole); Moore v. Biter, 725 F.3d 1184, 1193-94 (9th Cir. 2013) (sentence
       of 254 years is unconstitutional); People v. Caballero, 282 P.3d 291, 295 (Cal.
       2012). 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.

¶ 10       In this case, defendant committed offenses in a single course of conduct that
       subjected him to a legislatively mandated sentence of 97 years, with the earliest
       opportunity for release after 89 years. Because defendant was 16 years old at the
       time he committed the offenses, the sentencing scheme mandated that he remain in
       prison until at least the age of 105. The State concedes, and we agree, that
       defendant will most certainly not live long enough to ever become eligible for
       release. Unquestionably, then, under these circumstances, defendant’s
       term-of-years sentence is a mandatory, de facto life-without-parole sentence. We
       therefore vacate defendant’s sentence as unconstitutional pursuant to Miller.

¶ 11       Having vacated defendant’s sentence, we must determine the proper remedy.
       Both the State and defendant note that, during the pendency of this appeal, our
       legislature enacted a new law, codified in section 5-4.5-105 of the Unified Code of
       Corrections (730 ILCS 5/5-4.5-105 (West Supp. 2015)), which provides a new
       sentencing scheme for individuals under 18 years of age at the time of the
       commission of an offense. In general, the new statute requires the sentencing judge
       to take into account several factors in mitigation in determining the appropriate
       sentence for those under 18. In addition, the statute provides that the imposition of
       firearm enhancements is a matter of discretion with the trial court:

              “(b) Except as provided in subsection (c), the court may sentence the
          defendant to any disposition authorized for the class of the offense of which he
          or she was found guilty as described in Article 4.5 of this Code, and may, in its
          discretion, decline to impose any otherwise applicable sentencing enhancement




                                               -5-
          based upon firearm possession, possession with personal discharge, or
          possession with personal discharge that proximately causes great bodily harm,
          permanent disability, permanent disfigurement, or death to another person.

               (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 subsection (c) 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. In addition, the court may,
          in its discretion, decline to impose the sentencing enhancements based upon the
          possession or use of a firearm during the commission of the offense included in
          subsection (d) of Section 5-8-1.” 730 ILCS 5/5-4.5-105(b), (c) (West Supp.
          2015).

¶ 12       Both the State and defendant agree that, pursuant to section 4 of the Statute on
       Statutes (5 ILCS 70/4 (West 2014)), defendant is entitled, on remand, to be
       resentenced under the sentencing scheme found in section 5-4.5-105. See People v.
       Hollins, 51 Ill. 2d 68, 71 (1972) (section 4 of the Statute on Statutes entitles a
       defendant “to be sentenced under either the law in effect at the time the offense was
       committed or that in effect at the time of sentencing”). In addition, both the State
       and defendant agree that by applying this new sentencing scheme, the circuit court
       will have the discretion not to apply the firearm sentencing enhancements and,
       without these enhancements, the mandatory minimum aggregate sentence to which
       defendant would be subject is 32 years, a term that is not a de facto life sentence.
       Because defendant would not be subject to a mandatory, life-without-parole
       sentence under section 5-4.5-105, we remand this matter to the trial court with
       directions that a new sentencing hearing be held in accordance with this statute.


¶ 13                                     CONCLUSION

¶ 14       The judgments of the circuit and appellate courts are reversed. The cause is
       remanded 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 Supp. 2015)).


¶ 15      Appellate court judgment reversed.




                                               -6-
¶ 16   Circuit court judgment reversed.

¶ 17   Cause remanded.




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