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                                 Supreme Court                               Date: 2020.01.22
                                                                             10:30:59 -06'00'



                          People v. Buffer, 2019 IL 122327




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court:               DIMITRI BUFFER, Appellee.



Docket No.           122327



Filed                April 18, 2019



Decision Under       Appeal from the Appellate Court for the First District; heard in that
Review               court on appeal from the Circuit Court of Cook County, the Hon.
                     Thaddeus Wilson, Judge, presiding.



Judgment             Appellate court judgment affirmed.
                     Sentence vacated.
                     Cause remanded with directions.


Counsel on           Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
Appeal               Solicitor General, and Michael M. Glick and Gopi Kashyap, Assistant
                     Attorneys General, of Chicago, of counsel), for the People.

                     James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy
                     Defender, and Christopher L. Gehrke, Assistant Appellate Defender,
                     of the Office of the State Appellate Defender, of Chicago, for appellee.
                              John Marshall Law School, Pro Bono Program & Clinic, of Chicago
                              (J. Damian Ortiz, of counsel, and Cheryl Kamide, Margaret Shadid,
                              and Marlee Turim, law students), amicus curiae.

                              Bluhm Legal Clinic, Northwestern Pritzker School of Law, of Chicago
                              (Shobha L. Mahadev and Scott F. Main, of counsel, and Sarah Aagard
                              and Kristen Froese, law students), for amici curiae Children and
                              Family Justice Center et al.



     Justices                 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


                                                  -2-
     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.
¶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 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.



                                                  -3-
¶ 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, 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-


                                                   -4-
       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.
¶ 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.
       “ ‘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).




                                                   -5-
¶ 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 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.



                                                    -6-
¶ 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:
                   “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 support, the State points to several appellate court
       decisions that rejected Miller claims and reasoned that the shorter prison terms in those cases

                                                   -7-
       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
       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


                                                     -8-
               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, “[r]eviewing 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 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 2016).
¶ 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).
¶ 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

                                                   -9-
       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.

¶ 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


                                                    - 10 -
       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, 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 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

                                                   - 11 -
       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 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


                                                   - 12 -
       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, 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
       statutory scheme is unconstitutional, it is the wrong entity to make that determination.


           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 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.

                                                       - 13 -
¶ 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 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.



                                                    - 14 -
