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                               Appellate Court                             Date: 2019.02.20
                                                                           12:15:32 -06'00'



                  People v. Robinson, 2018 IL App (3d) 170287



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



District & No.     Third District
                   Docket No. 3-17-0287



Filed              December 20, 2018



Decision Under     Appeal from the Circuit Court of Will County, No. 00-CF-2095; the
Review             Hon. Daniel J. Rozak, Judge, presiding.



Judgment           Reversed and remanded.


Counsel on         James E. Chadd, Patricia Mysza, and S. Amanda Ingram, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
                   J. Robinson, and Justin A. Nicolosi, of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE HOLDRIDGE delivered the judgment of the court, with
                   opinion.
                   Justices O’Brien and Wright concurred in the judgment and opinion.
                                                 OPINION

¶1       The defendant, Terrance Robinson, filed a pro se postconviction petition in which he
     asserted that he had been sentenced in violation of the guidelines set forth in Miller v.
     Alabama, 567 U.S. 460 (2012). The circuit court dismissed the petition as frivolous and
     patently without merit.

¶2                                        I. BACKGROUND
¶3       In 2001, the defendant was convicted of first degree murder (720 ILCS 5/9-1(a)(3) (West
     2000)). The defendant was 15 years old at the time of the offense. Following a three-day
     sentencing hearing, the circuit court sentenced the defendant to a term of 50 years’
     imprisonment. In imposing the sentence, the court’s only reference to the defendant’s age was
     the following remark: “On the mitigating side there is the defendant’s age. He is 15 years old,
     but just the same his actions caused the death directly of another human being.”
¶4       On direct appeal, this court affirmed the defendant’s conviction and sentence. People v.
     Robinson, 336 Ill. App. 3d 1062 (2003) (table) (unpublished order under Illinois Supreme
     Court Rule 23). Specifically, this court found that the circuit court’s sentence was not
     excessive.
¶5       On June 8, 2016, the defendant filed a pro se postconviction petition.1 In the petition, the
     defendant asserted that his sentence of 50 years’ imprisonment constituted a de facto life
     sentence. Given his status as a juvenile at the time of the offense, the defendant argued that
     such a sentence violated the eight amendment of the United States Constitution under Miller.
     The circuit court dismissed the petition as frivolous and patently without merit. In the written
     order dismissing the petition, the court commented: “This court did (and always does) consider
     youthful age and potential for rehabilitation as mitigation and the record indicates that this
     court specifically referred to same.”

¶6                                            II. ANALYSIS
¶7        On appeal, the defendant argues that his pro se postconviction petition stated the gist of a
     constitutional claim and that the circuit court therefore erred in dismissing the petition at the
     first stage. We review the circuit court’s summary dismissal of the defendant’s pro se
     postconviction petition de novo. People v. Brown, 236 Ill. 2d 175, 184 (2010).
¶8        The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)) sets out a
     three-stage proceeding in which a criminal defendant may assert that his conviction resulted
     from a substantial denial of his rights under the United States Constitution, the Illinois
     Constitution, or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009). At the first stage, the court
     must accept as true and liberally construe all of the allegations in the petition unless
     contradicted by the record. People v. Edwards, 197 Ill. 2d 239, 244 (2001). A defendant need
     only allege sufficient facts to state the “gist” of a constitutional claim in order for his petition to
     be forwarded to the second stage. Hodges, 234 Ill. 2d at 9.



         Though labeled as a successive petition, the filing was the defendant’s first postconviction petition
         1

     and was treated as such by the circuit court.

                                                     -2-
¶9         The first stage of postconviction proceedings “presents a ‘low threshold’ [citation],
       requiring only that the petitioner plead sufficient facts to assert an arguably constitutional
       claim.” Brown, 236 Ill. 2d at 184 (quoting People v. Jones, 211 Ill. 2d 140, 144 (2004)). The
       circuit court must summarily dismiss a postconviction petition at the first stage of proceedings
       if the petition is frivolous or patently without merit. Id. A petition is frivolous or patently
       without merit if it “has no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 16. “A
       petition which lacks an arguable basis either in law or in fact is one which is based on an
       indisputably meritless legal theory or a fanciful factual allegation.” Id.
¶ 10       In Miller, the United States Supreme Court held that a mandatory sentence of life
       imprisonment without the possibility of parole violates the eighth amendment of the United
       States Constitution when imposed upon a juvenile offender. Miller, 567 U.S. at 470. The Court
       noted that its holding “mandates only that a sentencer follow a certain process—considering an
       offender’s youth and attendant characteristics—before imposing a particular penalty.” Id. at
       483. Among those attendant circumstances cited by the Miller Court were diminished
       culpability, greater prospects for reform, lack of maturity, underdeveloped sense of
       responsibility, limited control over their environment, and inability to extricate themselves
       from crime-producing settings. Id. at 471. In Montgomery v. Louisiana, 577 U.S. ___, 136 S.
       Ct. 718 (2016), the Supreme Court held that Miller applied retroactively.
¶ 11       In People v. Reyes, 2016 IL 119271, ¶ 9 (per curiam), the Illinois Supreme Court expanded
       the reasoning of Miller to include mandatory de facto life sentences. The court reasoned:
                    “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.” Id.
       One year later, in People v. Holman, 2017 IL 120655, ¶ 40, the court held that the reasoning in
       Miller applied whether the life sentence imposed was mandatory or discretionary. In other
       words, any life sentence imposed upon a juvenile—whether de facto or de jure, mandatory or
       discretionary—is “disproportionate and violate[s] the eight amendment, unless the trial court
       considers youth and its attendant circumstances.” Id. Thus, to prevail on a Miller-based claim
       and be subject to resentencing, a defendant sentenced for an offense committed while a
       juvenile must show that (1) he was subject to a life sentence and (2) the sentencing court failed
       to consider youth and its attendant circumstances in imposing the sentence.
¶ 12       The defendant argues on appeal that his is a de facto life sentence. Pursuant to that
       sentence, the defendant is scheduled to be released from prison on September 17, 2051,
       approximately a month prior to his sixty-sixth birthday. In making this argument, the
       defendant relies in part on data cited approvingly in People v. Sanders, 2016 IL App (1st)
       121732-B, ¶ 26, and People v. Buffer, 2017 IL App (1st) 142931, ¶ 59, which suggests the
       average life expectancy in the prison population is 64 years. The defendant also cites to a
       number of cases in which courts have determined similar sentences to be de facto life
       sentences for juveniles. Buffer, 2017 IL App (1st) 142931, ¶ 62 (50-year sentence); People v.




                                                    -3-
       Ortiz, 2016 IL App (1st) 133294, ¶ 24 (60 years); Bear Cloud v. State, 2014 WY 113, ¶ 11, 334
       P.3d 132 (Wyo. 2014) (45 years).2
¶ 13        The State insists that the defendant, as well as the above-cited authorities, go too far in
       defining the term “de facto life sentence.” Pointing out that the Reyes court defined a de facto
       life sentence as one “that cannot be served in one lifetime,” (Reyes, 2016 IL 119271, ¶ 9), the
       State asserts that sentences such as that imposed upon the defendant here, where a reasonable
       possibility exists that the defendant will be released from prison, should not be considered
       de facto life sentences. The State, in turn, cites a number of cases in which courts have
       determined that sentences similar to the defendant’s were not de facto life sentences. People v.
       Rodriguez, 2018 IL App (1st) 141379-B, ¶ 7 (50 years); People v. Applewhite, 2016 IL App
       (1st) 142330, ¶ 16 (45 years); People v. Perez, 2018 IL App (1st) 153629, ¶ 38 (53 years);
       People v. Pearson, 2018 IL App (1st) 142819, ¶ 49 (50 years).
¶ 14        Importantly, this appeal does not call on us to determine the precise point at which a
       sentence becomes a de facto life sentence or which side of that line the defendant’s sentence
       falls on. Instead, we must only determine whether the defendant’s Miller claim, as stated in his
       postconviction petition, has an “arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at
       16. Given the apparent disagreement between numerous courts, as well as the intrinsically
       difficult nature of such a question, it is clearly at least arguable that the defendant’s 50-year
       sentence amounts to a de facto life sentence.
¶ 15        Next, we must consider whether the circuit court arguably failed to consider the
       defendant’s youth and the attendant circumstances of that youth, in fashioning its sentence. See
       Holman, 2017 IL 120655, ¶ 40. The circuit court referenced the defendant’s youth once at
       sentencing, when it commented: “He is 15 years old, but just the same his actions caused the
       death directly of another human being.” The State asserts that this comment satisfies Miller
       and Holman but concedes that “the trial court’s analysis of the impact of defendant’s youth as
       it relates to his culpability and sentence was not as thorough as mandated by Miller.”3
¶ 16        The extreme brevity with which the circuit court addressed the defendant’s youth at
       sentencing stands in stark contrast with the detailed approach to addressing youth and
       attendant circumstances seen in Miller. Miller, 567 U.S. at 470. As with the portion of our
       analysis, we need not determine whether the circuit court’s comments were sufficient or
       insufficient under Miller. Instead, we simply find that it is arguable that the court’s brief
       comment was an insufficient consideration of youth and its attendant circumstances. Because
       the defendant’s postconviction petition set forth an arguable basis in law and fact for his Miller
       claim, we reverse the circuit court’s summary dismissal of that petition and remand so that the
       matter may be docketed for second-stage proceedings.




           2
             While Bear Cloud, as an out-of-jurisdiction case, is merely persuasive authority, it was cited
       approvingly by our supreme court in Reyes, 2016 IL 119271, ¶ 9.
           3
             The State contends that the circuit court only failed to be more thorough because it imposed the
       sentence before Miller was decided. While this is no doubt true, it is of no legal import because Miller
       applies retroactively. Montgomery, 577 U.S. ___, 136 S. Ct. 718.

                                                      -4-
¶ 17                                      III. CONCLUSION
¶ 18       The judgment of the circuit court of Will County is reversed and the matter is remanded for
       further proceedings.

¶ 19      Reversed and remanded.




                                                  -5-
