                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Morfin, 2012 IL App (1st) 103568




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



District & No.             First District, Third Division
                           Docket No. 1-10-3568


Filed                      November 30, 2012


Held                       The mandatory life sentence imposed on defendant for two counts of first
(Note: This syllabus       degree murder committed when he was a minor was vacated and the
constitutes no part of     cause was remanded for a new sentencing hearing on the ground that
the opinion of the court   pursuant to Teague, Miller is retroactively applicable to defendant’s case
but has been prepared      on collateral review, and under Miller, a new sentencing hearing was
by the Reporter of         required for defendant, and at the hearing, possible sentences include
Decisions for the          natural life, 20 to 60 years, or up to 100 years if an extended-term finding
convenience of the         is made.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 96-CR-1838; the
Review                     Hon. Arthur F. Hill, Jr., Judge, presiding.



Judgment                   Vacated and remanded with directions.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Jonathan Steffy, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                           Michelle Katz, Assistant State’s Attorneys, of counsel), for the People.


Panel                      PRESIDING JUSTICE SALONE delivered the judgment of the court,
                           with opinion.
                           Justice Steele concurred in the judgment and opinion.
                           Justice Sterba specially concurred, with opinion.



                                             OPINION

¶1           Defendant Nicholas Morfin appeals from an order of the circuit court dismissing his
        second or successive petition for relief from judgment (735 ILCS 5/2-1401 (West 2010))
        challenging his mandatory sentence of natural life imprisonment for two counts of first
        degree murder on the basis that he was a minor at the time of his offenses. Defendant
        contends that a mandatory life sentence for an offender under 18 years old violates the
        Illinois constitutional requirement of proportionate penalties and the federal constitutional
        prohibition against cruel and unusual punishments. In particular, he contends that his claim
        is meritorious under the United States Supreme Court decision in Miller v. Alabama, 567
        U.S. ___, 132 S. Ct. 2455 (2012). The State responds that defendant’s constitutional
        challenges to his sentence are barred as res judicata and are not meritorious, and particularly
        contends that Miller does not apply herein as it is a new rule of law that cannot be applied
        retroactively on collateral review. For the reasons stated below, we agree with defendant,
        vacate his sentence, and remand for resentencing consistent with Miller.

¶2                                        BACKGROUND
¶3                                 Pretrial and Trial Proceedings
¶4          Defendant–along with codefendants William Bigeck, Eric Anderson, Nicholas Liberto,
        and Edward Morfin (Edward)–was charged with first degree murder in the shooting deaths
        of Carrie Hovel and Helena Martin, and three counts each of attempted first degree murder
        and aggravated discharge of a firearm for allegedly shooting at Bryan Adasiak, Peter
        Casanas, and Melissa Shibla, all allegedly done on or about December 14, 1995.
¶5          Defendant was tried in 1997 in a severed jury trial upon the first degree murder charges
        alone. Bigeck and Edward, eligible for the death penalty as each was over 18 years old at the
        time of the offenses, had each pled guilty to one count of first degree murder, with the other
        charges dismissed and a 30-year prison sentence recommended by the State, in exchange for

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     testimony against their codefendants.
¶6       According to the trial evidence, codefendants Anderson and Bigeck stole two revolvers
     from a police officer’s home on the morning in question and brought them to defendant’s
     home. There, defendant and Anderson test-fired the guns in the basement, then defendant hid
     one of the guns, wrapped in a rubber glove, in the cushions of his bedroom sofa. Defendant,
     Anderson, and Bigeck were all members of the Almighty Popes street gang, and they met
     after the gun theft with leaders of that gang, who ordered them to attack members of the rival
     Ridgeway Lords gang found in Almighty Popes’ territory. Anderson was to actually do the
     shooting, while defendant was to wipe off fingerprints and file off serial numbers from the
     stolen guns; he did so. That afternoon, defendant was riding in an older gray or silver sedan
     with codefendants Liberto, Edward, and Anderson when defendant saw in Almighty Popes
     territory a tan van that the gang associated with the Ridgeway Lords; defendant said that they
     should “pull a burn on the van”; that is, shoot up the van. The gray sedan passed the van two
     or three times, then drove away. At about 6 p.m., Edward, Anderson, and Bigeck walked to
     the parked van, occupied by teenagers Hovel, Martin, Adasiak, Casanas, and Shibla. Adasiak
     was a member of the Ridgeway Lords. As Casanas started to drive away upon seeing the
     young men approaching, Anderson fired several shots at the van and Hovel and Martin were
     fatally shot. While defendant was supposed to provide a ride to Anderson and the others to
     and from the shooting, they walked to the shooting and there was no car waiting for them
     afterwards.
¶7       In lineups, Adasiak and Casanas identified Anderson and Bigeck as two of the young
     men from the shooting. After the shooting, Liberto was seen parking and exiting an older
     gray car that was identified by Casanas as the one that passed the van before the shooting.
     Edward and Bigeck testified to their participation in the aforementioned events. Other
     members of the Almighty Popes testified that defendant, Anderson, and Bigeck were
     members of that gang, that the Almighty Popes associated the tan van with the Ridgeway
     Lords, that defendant, Anderson, and Bigeck were ordered to attack the Ridgeway Lords, and
     that Anderson and Bigeck admitted to stealing two guns that were then test-fired in
     defendant’s basement and from which defendant filed serial numbers. A police officer
     testified that two revolvers were stolen from her home on the day in question, and she
     identified Bigeck as one of the two suspicious men she had seen outside her home just before
     leaving it. Defendant led officers to his home, where they found one of the stolen pistols
     wrapped in a latex glove in the cushions of a sofa in his bedroom as well as bullet fragments
     from a dresser in the bedroom and more bullet fragments and pock-marked walls in the
     basement. Edward brought the police to where the other stolen gun was hidden, and forensic
     testing found that this latter gun fired the bullets and fragments taken from Hovel and Martin
     and from defendant’s bedroom. A police gang-crimes detective explained that certain of
     defendant’s tattoos, and gestures by defendant and Anderson in three photographs depicting
     them together, indicated membership in the Almighty Popes. The detective also explained
     that a phrase in a postarrest letter from defendant–“Folk killing for a living”–indicated “his
     lifestyle as a Folks killer,” with the Ridgeway Lords being in the Folks affiliation of gangs.
¶8       The jury found defendant guilty of the first degree murders of Hovel and Martin. Posttrial
     motions were denied.

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¶9                                     Sentencing Proceedings
¶ 10       Defendant’s presentence investigation report (PSI) showed no prior criminal convictions
       or juvenile adjudications. It indicated that he was raised by his employed and married parents
       with the assistance of his grandparents, that he completed grade school and had attended over
       three years of high school when he was arrested for the instant offenses, and that he was in
       good physical and mental health with limited alcohol and marijuana usage. Defendant
       admitted to former membership in the Almighty Popes gang, which ended in mid-1996, and
       that many codefendants were also members of that gang. The PSI, and other documents in
       the record, states defendant’s date of birth as June 12, 1978.
¶ 11       Defendant filed a motion seeking to be sentenced to a term of years in prison on the basis
       that the statutorily mandated natural life sentence for committing two or more murders would
       violate his constitutional rights to due process and equal protection, to meaningful assistance
       of counsel, to have his rehabilitative potential considered in sentencing, and to be free from
       cruel and unusual punishment. Defendant admitted that the statute had been previously
       upheld against constitutional challenge but argued that his particular circumstances called
       for a different result. He noted that he was 17 years old at the time of the offenses with no
       prior convictions or juvenile adjudications, and that he was found guilty on an accountability
       basis. By contrast, he argued, codefendants Bigeck and Edward were adults at the time of the
       offense who were armed at the scene of the crime, confessed to their participation therein,
       and had a prior conviction (Edward) or admitted prior offenses (Bigeck). Nonetheless, the
       State agreed to dismiss one murder count each against Edward and Bigeck and seek prison
       terms of 30 years for each. Defendant argued that “it would be fundamentally unfair” as well
       as cruel and unusual to sentence him to natural life imprisonment under such circumstances.
       As to meaningful assistance of counsel, defendant argued that the mandatory nature of the
       life sentence rendered meaningless any mitigation that his counsel would present at
       sentencing.
¶ 12       On May 22, 1998, the court denied the motion and held the sentencing hearing. The State
       introduced victim impact statements from Martin’s mother and Hovel’s father, mother,
       stepfather, and grandmother, while the defense introduced 20 letters on defendant’s behalf.
       Defendant chose not to personally address the court. The court then sentenced defendant to
       two concurrent terms of natural life imprisonment. Defendant timely filed a motion to reduce
       his sentence, making the same arguments as in his presentencing motion to be sentenced to
       a term of years in prison. The motion was denied.

¶ 13                           Direct Appeal and First Vacatur Petition
¶ 14        On direct appeal, defendant contended that (1) he was arrested without probable cause,
       (2) the trial court allowed improper gang evidence against him, (3) the court also improperly
       admitted “other-crimes” evidence regarding his prior interactions with police, (4) the State
       made multiple improper arguments, and (5) the State failed to disclose potentially
       exculpatory evidence regarding a State witness. Defendant also contended that his mandatory
       sentence of natural life imprisonment was unconstitutional. This court affirmed defendant’s
       convictions and sentence, noting in relevant part that the mandatory life sentence provision


                                                -4-
       had been upheld (1) on the basis that no possible mitigating evidence can overcome the
       statute, and (2) against challenges from youthful offenders and from defendants convicted
       on an accountability basis. People v. Anderson, Nos. 1-98-2390, 1-98-2438 cons. (2000)
       (unpublished order under Supreme Court Rule 23).1
¶ 15       In 2005, defendant, through counsel, filed a petition to vacate his sentence as void,
       arguing that the statute mandating natural life imprisonment for two or more murders was
       unconstitutional on its face and as applied to him. He cited People v. Miller, 202 Ill. 2d 328
       (2002), where our supreme court held the statute unconstitutional under the Illinois
       proportionate-penalties clause as applied to a 15-year-old convicted on an accountability
       basis and affirmed the trial court’s sentence of 50 years’ imprisonment. Defendant
       acknowledged that he, unlike Miller, was over 17 years old but argued that this should not
       bar him from the same relief as Miller. Defendant also argued that the statute and his
       sentence thereunder violate the federal prohibition on cruel and unusual punishments because
       they make no distinction between juvenile and adult offenders, citing Roper v. Simmons, 543
       U.S. 551 (2005), where the United States Supreme Court found unconstitutional the
       imposition of the death penalty on persons under 18 years old at the time of their offenses.
¶ 16       The State moved to dismiss the petition, noting that Miller held the statute at issue
       unconstitutional as applied to Miller in particular while expressly declaring that a natural life
       sentence against a juvenile convicted through accountability could be constitutionally
       appropriate under different circumstances. The State argued that defendant was not a juvenile
       at the time of his offense as he was 17 years old and that his culpability for the instant
       offenses was greater than Miller’s culpability. Also, the State argued that the constitutionality
       of defendant’s sentence was res judicata as it was raised and ruled upon in the direct appeal.
¶ 17       In March 2006, the circuit court granted the State’s motion to dismiss, finding that the
       constitutionality issue was barred as res judicata, that Miller did not categorically prohibit
       natural life sentences for juveniles convicted of two or more murders through accountability,
       and that defendant was more culpable than Miller so that Miller does not apply here.
¶ 18       On appeal, this court affirmed the dismissal, holding that the constitutionality of
       defendant’s sentence was res judicata and rejecting his argument that res judicata did not
       bar his claim based on new law; specifically, Miller. This court found that (1) Miller applies
       only to juveniles, while defendant as a 17-year-old was not a juvenile, and (2) Roper
       concerned the constitutionality of the death penalty for minors and does not require the same
       result for natural life sentences for minors. People v. Morfin, No. 1-06-0945 (2007)
       (unpublished order under Supreme Court Rule 23).

¶ 19                      Instant Proceedings Under Section 2-1401(f)
¶ 20       Defendant filed the instant pro se petition for relief from a void judgment in July 2010,

               1
                 Codefendant Anderson, convicted of two counts of first degree murder in a separate jury
       trial and sentenced to natural life imprisonment, raised many of the same contentions as defendant
       in the consolidated appeal, including the constitutional challenges to the mandatory life sentence
       provision. His convictions and sentence were also affirmed.

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       arguing that the court had no authority to extend his sentence to natural life imprisonment
       because (1) it had no authority to find him guilty of more than one murder as there was no
       evidence of his intent to kill more than one person, and (2) his conviction was on an
       accountability basis. He asserted that the claims in the instant petition had not been raised
       on direct appeal or an earlier collateral petition.
¶ 21       On August 18, 2010, the circuit court dismissed the petition, finding that defendant was
       not presenting any new evidence, that defendant’s intent to kill need not be proven to
       properly convict him of first degree murder, and that such a claim was forfeited because it
       could have been raised earlier. Defendant filed a pro se motion for reconsideration, which
       the court denied on October 7, 2010. This appeal followed.

¶ 22                             ARGUMENTS OF THE PARTIES
¶ 23        Defendant contends that the statute mandating natural life imprisonment for any person
       who murders more than one person is unconstitutional as applied to a minor, under the
       Illinois constitutional requirement of proportionate penalties and the federal constitutional
       prohibition against cruel and unusual punishments. Fundamentally, he argues that the
       mandatory nature of the sentence precludes consideration of a defendant’s rehabilitative
       capacity, which is of particular importance for minors as the law recognizes their reduced
       capacity and responsibility. Defendant contended that “he was minimally involved in the
       commission of the offense.”
¶ 24        The State responds that defendant’s constitutional challenge should be barred as res
       judicata. The State also contends that People v. Miller does not apply to defendant’s case
       because (1) though a minor at the time of his offenses, he was not a juvenile; that is, not
       under 17 years old, and (2) his involvement in the planning and preparation of the instant
       offenses was well beyond Miller’s nearly passive role in his offenses. The State argued that
       nothing in federal or Illinois case law since Miller had categorically barred natural life
       imprisonment for minors convicted of homicide, and indeed Illinois courts recently rejected
       such contentions.
¶ 25        Since defendant’s initial brief, the United States Supreme Court handed down Miller v.
       Alabama, which defendant first cites–and relies upon heavily–in his reply brief. The Miller
       v. Alabama Court held that the federal constitution’s ban on cruel and unusual punishments
       forbids a mandatory sentence of life imprisonment without possibility of parole upon
       offenders who were minors at the time of their offense. Defendant contends that Miller v.
       Alabama squarely governs here and renders his mandatory life sentence void ab initio so that
       there is no res judicata effect from this court’s earlier orders. He also argues that “Illinois
       courts have rejected similar res judicata arguments in post-conviction petition appeals where
       new law has been established after the pendency of a defendant’s direct appeal.”
¶ 26        The State has responded in a supplemental brief, arguing that Miller v. Alabama is not
       applicable here because it constitutes a new rule of procedural law and thus cannot be applied
       to cases on collateral review such as the instant case. The State argues that Miller is new law
       because it imposes a new obligation or restriction on the federal and state governments. The
       State also argues that Miller does not fall under either of the exceptions to the

                                                -6-
       nonretroactivity rule. (1) It does not prohibit the State from imposing natural life
       imprisonment on minors but only from doing so mandatorily; that is, without discretion to
       impose a lesser sentence. (2) It does not require a procedure implicit in the concept of
       ordered liberty; that is, it does not recognize a previously unrecognized bedrock procedural
       rule essential to the fairness of the proceedings. The State noted that this court has held that
       People v. Miller is inapplicable retroactively on collateral review because it did not create
       or impose a categorical ban on natural life sentences for juveniles convicted on an
       accountability basis.
¶ 27        In his supplemental brief, defendant contends that Miller v. Alabama created a new rule
       of substantive law–as opposed to procedural law–applicable retroactively on collateral
       review. Moreover, defendant argues, Miller falls under the second exception to
       nonretroactivity because a lack of discretion whether to impose a natural life sentence
       “creates an unacceptably high risk that the sentence will be disproportionate.” Defendant
       argues that, in a companion collateral-review case to Miller v. Alabama, the Supreme Court
       applied Miller and thus indicated its intent that Miller be applied retroactively. Defendant
       also argues that a sentence that is void ab initio must be vacated. As to People v. Miller being
       nonretroactive, defendant argues that it does not categorically ban natural life imprisonment
       for juveniles convicted on an accountability basis while Miller v. Alabama categorically bans
       mandatory natural life imprisonment of minors. Lastly, defendant argues that this court
       should not apply a retroactivity analysis at all because our supreme court erroneously
       followed the United States Supreme Court’s Teague retroactivity test though the Supreme
       Court has ruled that it is not binding upon the states. Teague v. Lane, 489 U.S. 288 (1989).

¶ 28                                        ANALYSIS
¶ 29                               General Governing Principles
¶ 30        Section 2-1401 of the Code of Civil Procedure governs “[r]elief from final orders and
       judgments, after 30 days from the entry thereof,” and paragraph (f) provides that “[n]othing
       contained in this Section affects any existing right to relief from a void order or judgment,
       or to employ any existing method to procure that relief.” 735 ILCS 5/2-1401(a), (f) (West
       2010). A petition challenging a judgment as void is not subject to the limitations period or
       due diligence requirements of section 2-1401, and this court reviews de novo the disposition
       of a section 2-1401 petition other than after an evidentiary hearing. Parker v. Murdock, 2011
       IL App (1st) 101645, ¶¶ 18, 20. However, claims that were raised and decided on direct
       appeal are barred as res judicata and claims that could have been raised, but were not, are
       deemed forfeited. People v. Sanders, 238 Ill. 2d 391, 398 (2010).
¶ 31        The federal constitution prohibits “cruel and unusual punishments,” while the Illinois
       Constitution requires that “[a]ll penalties shall be determined both according to the
       seriousness of the offense and with the objective of restoring the offender to useful
       citizenship.” U.S. Const., amend. VIII; Ill. Const. 1970, art. I, § 11. That which is
       unconstitutional is not necessarily void, because voidness arises from a court’s lack of
       authority to issue the judgment in question. People v. Moran, 2012 IL App (1st) 111165,
       ¶¶ 16-18, 24. A statute that is unconstitutional on its face–that is, where no set of


                                                 -7-
       circumstances exists under which it would be valid–is void ab initio, while a statute that is
       merely unconstitutional as applied is not. People v. One 1998 GMC, 2011 IL 110236, ¶ 20;
       Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶¶ 25-27.

¶ 32                                     The Statute at Issue
¶ 33       At all relevant times, the Unified Code of Corrections provided regarding first degree
       murder that:
           “the court shall sentence the defendant to a term of natural life imprisonment when the
           death penalty is not imposed if the defendant
                    *** is a person who, at the time of the commission of the murder, had attained
               the age of 17 or more and is found guilty of murdering an individual under 12 years
               of age; or, irrespective of the defendant’s age at the time of the commission of the
               offense, is found guilty of murdering more than one victim[.]” 730 ILCS 5/5-8-
               1(a)(1)(c)(ii) (West 2010).
¶ 34       In People v. Miller, 202 Ill. 2d 328 (2002), our supreme court held that this statute
       violated the Illinois proportionate penalties clause as applied to its defendant, “a 15-year-old
       with one minute to contemplate his decision to participate in the incident and stood as a
       lookout during the shooting, but never handled a gun.” Miller, 202 Ill. 2d at 341. The court
       therefore held that the statute in question “as applied to defendant, a juvenile offender
       convicted under a theory of accountability, violates the proportionate penalties clause” and
       affirmed the trial court’s decision to impose a 50-year prison sentence. Id. at 343. However,
       the court refused to hold:
           “that a sentence of life imprisonment for a juvenile offender convicted under a theory of
           accountability is never appropriate. It is certainly possible to contemplate a situation
           where a juvenile offender actively participated in the planning of a crime resulting in the
           death of two or more individuals, such that a sentence of natural life imprisonment
           without the possibility of parole is appropriate.” Id. at 341.

¶ 35                                      Miller v. Alabama
¶ 36       In Miller v. Alabama, issued June 25, 2012, the United States Supreme Court was faced
       with appeals by “two 14-year-old offenders *** convicted of murder and sentenced to life
       imprisonment without the possibility of parole. In neither case did the sentencing authority
       have any discretion to impose a different punishment.” Miller, 567 U.S. at ___, 132 S. Ct.
       at 2460. While Evan Miller was granted certiorari from a direct appeal, the other defendant,
       Kuntrell Jackson, was before the Supreme Court on review of the dismissal of a state habeas
       petition. Id. at ___, 132 S. Ct. at 2461-63.
¶ 37       The Supreme Court noted its earlier decisions in Roper and Graham v. Florida, 560 U.S.
       ___, 130 S. Ct. 2011 (2010), declaring unconstitutional the sentencing of a minor–a person
       under 18 years old at the time of the offense–to either the death penalty or life imprisonment
       without parole for a nonhomicide offense. The Supreme Court also noted that it had held
       unconstitutional the mandatory imposition of a capital sentence, so that the characteristics


                                                 -8-
       of a defendant and the details of his offense must be considered before sentencing him to
       death. The Court found that “Graham and Roper and our individualized sentencing cases
       alike teach that in imposing a State’s harshest penalties, a sentencer misses too much if he
       treats every child as an adult” because the mandatory nature of the sentence “precludes
       consideration of [the offender’s] chronological age and its hallmark features–among them,
       immaturity, impetuosity, and failure to appreciate risks and consequences.” Id. at ___, 130
       S. Ct. at 2468. Based on these precedents, the Court held:
            “[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 ___, 130 S. Ct.
            at 2475.
¶ 38        The Court refused to declare categorically that a minor cannot receive life imprisonment
       without parole for a homicide offense, and it expressly distinguished earlier decisions where
       mandatory natural life imprisonment of adults was upheld. Id. at ___, 130 S. Ct. at 2469-70
       (citing Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding mandatory sentence of life
       without parole for possession of more than 650 grams of cocaine)). However, “given all we
       have said in Roper, Graham, and this decision about children’s diminished culpability and
       heightened capacity for change, we think appropriate occasions for sentencing juveniles to
       this harshest possible penalty will be uncommon.” Id. at ___, 130 S. Ct. at 2469.

¶ 39                                         Voidness
¶ 40       As a threshold matter, we find that Miller v. Alabama does not render the statute in
       question or defendant’s sentence thereunder void ab initio. Miller does not affect the validity
       of the natural life imprisonment statute as to nonminor defendants, so that the statute is not
       unconstitutional on its face. Moreover, Miller does not deprive or divest any state or court
       of the authority to sentence a defendant who was a minor at the time of his offense, such as
       defendant, to natural life imprisonment for the commission of a homicide.

¶ 41                 Applicability of Constitutional Cases on Collateral Review
¶ 42       Because the State has a legitimate interest in the finality of criminal convictions, new
       constitutional rules of criminal procedure are generally not to be applied retroactively to
       cases on collateral review. Sanders, 238 Ill. 2d at 401; People v. Morris, 236 Ill. 2d 345, 359
       (2010). A case announces such a new rule when it breaks new ground or imposes a new
       obligation on the states or federal government, so that the result of the case “must not be
       ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ”
       (Emphasis in original.) Sanders, 238 Ill. 2d at 400-01 (quoting Teague v. Lane, 489 U.S. 288,
       301 (1989)). Because it is often difficult to determine whether a case announces a new rule,
       especially where the new decision was reached by extending the reasoning of prior cases, the
       fact that a court asserts that its decision is controlled by, follows the logic of, conforms with,

                                                  -9-
       or is consistent with a prior decision is not conclusive or dispositive of whether the case
       actually announces a new rule. Id. at 401-02. Instead, the task is to determine whether courts
       considering the defendant’s claim at the time his conviction became final would have felt
       compelled by existing precedent to conclude that the rule was constitutionally required. Id.
       at 402.
¶ 43       There are two exceptions whereby a new constitutional rule may apply retroactively: if
       the rule (1) “places certain kinds of primary, private individual conduct beyond the power
       of the criminal-law-making authority to proscribe” or (2) “requires the observance of those
       procedures that are implicit in the concept of ordered liberty.” Id. at 401. The first exception,
       regarding new substantive rules as contrasted to new procedural rules, includes not only
       constitutional decisions that particular conduct or persons are beyond the State’s power to
       punish, but also a decision that a defendant faces a punishment that the law cannot impose
       upon him; that is, a ruling limiting the conduct that constitutionally may be subject to a
       certain penalty. Schriro v. Summerlin, 542 U.S. 348, 352 (2004); Lucien v. Briley, 213 Ill.
       2d 340, 348 (2004).
¶ 44       Only “ ‘watershed rules of criminal procedure’ ” creating new procedures “without which
       the likelihood of an accurate conviction is seriously diminished” fall under the second
       exception. Sanders, 238 Ill. 2d at 401 (quoting Teague, 489 U.S. at 311, 313). Our supreme
       court has held that, because “Teague makes clear that the focus of the inquiry when
       considering whether the second exception applies is the accuracy of the conviction and
       finding of guilt,” a constitutional violation regarding sentencing “has nothing to do with
       accuracy of the conviction.” Morris, 236 Ill. 2d at 362-63. Thus, “a rule that only affects the
       enhancement of a defendant’s sentence does not amount to an error which seriously affects
       the fairness, integrity or public reputation of judicial proceedings so as to fall within the
       second Teague exception requiring retroactivity in all cases.” Id. at 363.
¶ 45       In support of his argument that we should not conduct a Teague retroactivity analysis,
       defendant notes that the Supreme Court held in Danforth v. Minnesota, 552 U.S. 264 (2008),
       that the states need not follow Teague; that is, it does not “constrain[ ] the authority of state
       courts to give broader effect to new rules of criminal procedure than is required by that
       opinion.” Danforth, 552 U.S. at 266. However, as may be seen above, our supreme court has
       applied the Teague test since Danforth. Moreover, this court in People v. Davis, 388 Ill. App.
       3d 869 (2009), applied Teague despite a Danforth-based challenge, noting that our supreme
       court has never held that it was required to follow Teague and that this court has no authority
       to disregard or set aside decisions of our supreme court.

¶ 46                               Retroactivity of People v. Miller
¶ 47       People v. Miller has been considered time and again by our courts, and in particular the
       issue of its applicability on collateral review was addressed in Davis. There, a defendant who
       was a juvenile at the time of his offenses was tried in the criminal court and convicted (in
       relevant part) of two first degree murders and sentenced to natural life imprisonment. His
       direct appeal was decided in 1995 with leave to appeal denied in 1996, and this court
       affirmed the dismissal of two postconviction petitions before his section 2-1401(f) petition


                                                 -10-
       relying upon People v. Miller. Davis, 388 Ill. App. 3d at 871, 874-76. The Davis defendant
       contended that People v. Miller announced a new substantive rule that should be applied
       retroactively under the first prong of the Teague rule. However, this court held that Miller
       did not create a new substantive rule prohibiting the imposition of a natural life sentence
       either for all juveniles or for all juveniles convicted on an accountability basis, but instead
       held that a natural life sentence was unconstitutionally disproportionate as applied to the
       Miller defendant. Id. at 879-82. This court therefore did not apply Miller to defendant’s
       sentence challenge. Id. at 882.

¶ 48                              Retroactivity of Miller v. Alabama
¶ 49        The Second Division of this court recently addressed the retroactivity of Miller on
       collateral review. People v. Williams, 2012 IL App (1st) 111145. The Williams defendant
       was, in relevant part, convicted of two counts of first degree murder and sentenced to natural
       life imprisonment, a judgment affirmed on direct appeal in 1999. People v. Williams, 305 Ill.
       App. 3d 517 (1999). He sought leave to file his fourth postconviction petition in 2011,
       relying upon Graham, and on appeal from the denial of leave he cited Miller. The Williams
       court found that Miller does not render the mandatory life imprisonment statute void or
       unconstitutional on its face as it does not affect the statute’s application to adult perpetrators.
       However, the Williams court also found that Miller states a watershed rule of criminal
       procedure rendering it retroactive under Teague. The case was therefore remanded for, in
       relevant part, a new sentencing hearing.
¶ 50        From the published federal and state cases citing Miller v. Alabama, most of which
       address Miller on direct appeal, two other states–Florida and Michigan–have directly
       addressed the retroactivity of Miller on collateral review.
¶ 51        In Geter v. State, No. 3D12-1736, 2012 WL 4448860 (Fla. Ct. App. 3d Dist. Sept. 27,
       2012), a 17-year-old offender convicted of first degree murder and sentenced to life
       imprisonment in 2003, with his conviction affirmed on direct appeal in 2004 and with three
       postconviction petitions denied in 2005, 2009, and 2012, filed a fourth post-conviction
       petition challenging his sentence pursuant to Miller. Similar to Illinois law, Florida provides
       that a change of case law will not be applied on postconviction review “ ‘in the absence of
       fundamental and constitutional law changes which cast serious doubt on the veracity or
       integrity of the original trial proceeding.’ ” Geter, 2012 WL 44488602, at *2 (quoting Witt
       v. State, 387 So. 2d 922, 929 (Fla. 1980)). Florida law contrasts changes that “ ‘place beyond
       the authority of the state the power to regulate certain conduct or impose certain penalties’ ”
       and “ ‘those changes of law which are of sufficient magnitude to necessitate retroactive
       application’ ”; that is, fundamentally revolutionary cases, with, on the other hand, merely
       evolutionary cases affording new or different standards for the admissibility of evidence,
       procedural fairness, proportionality review of capital cases, and the like. Geter, 2012 WL
       4448860, at *2 (quoting Witt, 387 So. 2d at 929).
¶ 52        The Geter court held that Miller is not such a fundamental or revolutionary case that it
       should be applied retroactively. The court held that Miller does not affect the determination
       of guilt or innocence and does not cast doubt on the integrity of the original trial proceeding.


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       The court noted that Miller does not forbid a sentence of life imprisonment without parole
       for minors but merely requires consideration of youth-related mitigating factors, in contrast
       to Graham, which categorically prohibited natural life imprisonment of minors for
       nonhomicide offenses. The Geter court acknowledged that another panel of the Florida
       appellate court had followed Graham to remand for resentencing in a collateral-review case
       (Kleppinger v. State, 81 So. 3d 547 (Fla. Ct. App. 2012)) but distinguished that decision from
       the case before it because Graham imposed a substantive prohibition of life-without-parole
       upon minors for nonhomicide offenses while Miller mandated a procedure for imposing such
       a sentence and expressly allowed for the possibility of such a sentence for a minor convicted
       of homicide. See also Gonzalez v. State, No. 1D12-3153, 2012 WL 5233454 (Fla. Ct. App.
       1st Dist. Oct. 24, 2012) (following Geter).
¶ 53       The Michigan Court of Appeals has decided that, under a Teague analysis, Miller does
       not apply retroactively. People v. Carp, No. 307758, 2012 WL 5846553 (Mich. App. Nov.
       15, 2012). The Carp court found that Miller states a new rule, because its result was not
       dictated by existing precedent, and that Miller does not fall under one of the two exceptions
       rendering a new rule retroactive. The Carp court found that the Miller rule is procedural
       rather than substantive because it does not prohibit sentences of natural life without parole
       for minors. The Carp court also found that Miller does not create a watershed rule of
       criminal procedure as the Miller rule is neither necessary to prevent an impermissibly large
       risk of an inaccurate conviction nor does it alter one’s understanding of the bedrock
       procedural elements essential to the fairness of criminal proceedings.
¶ 54       The Iowa Court of Appeals has granted remands for resentencing based on Miller in two
       cases of first degree murder committed by 17-year-olds and punished by life imprisonment
       without parole where the direct appeal process was exhausted in 1987 and 2000, respectively.
       State v. Lockheart, No. 10-1815, 2012 WL 2814378 (Iowa Ct. App. July 11, 2012); State v.
       Bennett, No. 11-0061, 2012 WL 2816806 (Iowa Ct. App. July 11, 2012). However, in both
       cases the defendant filed a motion for correction of an illegal sentence, which Iowa law
       allows to be filed at any time; the Iowa Supreme Court has ruled that such motions
       encompass claims of cruel and unusual punishment. Veal v. State, 779 N.W.2d 63 (Iowa
       2010). Therefore, the retroactivity of Miller was, and presumably is, not an issue under Iowa
       law. Similarly, the Louisiana Supreme Court has granted a remand for resentencing based
       on Miller from a 2011 motion to correct an illegal sentence imposed in 1995. State v.
       Simmons, 2012-1810 (La. 10/12/12); 99 So. 3d 28.

¶ 55                                       CONCLUSION
¶ 56       We conclude that, pursuant to Teague, Miller v. Alabama is applicable retroactively on
       collateral review. Miller creates a new rule of law that was not required by either the
       precedents on what penalties a minor constitutionally cannot receive (Roper and Graham)
       or by the cases cited in Miller requiring sentencing discretion for the death penalty. See, e.g.,
       Loggins v. Thomas, 654 F.3d 1204, 1222 (11th Cir. 2011) (“the Supreme Court did not imply
       in Roper or in Graham that a life without parole sentence is impermissible for a juvenile who
       commits a homicide”). However, we find that Miller constitutes a new substantive rule.


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       While it does not forbid a sentence of life imprisonment without parole for a minor, it does
       require Illinois courts to hold a sentencing hearing for every minor convicted of first degree
       murder at which a sentence other than natural life imprisonment must be available for
       consideration. Miller mandates a sentencing range broader than that provided by statute for
       minors convicted of first degree murder who could otherwise receive only natural life
       imprisonment. We therefore respectfully disagree with the Florida courts in Geter and
       Gonzalez and the Michigan court in Carp.
¶ 57       Our decision is reinforced by the fact that one of the two Miller defendants was before
       the United States Supreme Court on collateral review following completion of his direct
       appeal and received relief in the same manner as Miller himself. While this court
       independently conducts a Teague analysis pursuant to Illinois law, the relief granted to
       Jackson in Miller tends to indicate that Miller should apply retroactively on collateral review.
¶ 58       We acknowledge that this court held in Davis that People v. Miller is not retroactive
       because it does not prohibit a sentence of natural life imprisonment for minors. However, we
       consider Davis inapposite because People v. Miller is distinguishable in a key manner from
       Miller v. Alabama. Relief pursuant to People v. Miller is a matter of the trial court’s
       discretion, so that a defendant shall be sentenced pursuant to the statute to natural life
       imprisonment unless he makes a case that such a sentence would be cruel and unusual as
       applied to him under his particular circumstances. By contrast, Miller v. Alabama requires
       in every case with a minor defendant, by right and as a matter of course, a full sentencing
       hearing with a range of sentences available to the court. In other words, arguments in
       mitigation face an uphill battle under People v. Miller but are on a level playing field
       pursuant to Miller v. Alabama. The substantive change effected by Miller v. Alabama is
       sufficiently categorical (to use defendant’s word) to distinguish it from People v. Miller for
       purposes of our retroactivity analysis.
¶ 59       Pursuant to Miller v. Alabama, defendant is entitled to a new sentencing hearing where
       natural life imprisonment is not the only available sentence. Under our statutes now and at
       the time of defendant’s offenses, the circuit court may sentence a defendant convicted of first
       degree murder committed as a minor to a prison term of 20 to 60 years, up to 100 years
       where an appropriate extended-term finding has been made, or to natural life imprisonment.
       720 ILCS 5/9-1(b) (West 2010); 730 ILCS 5/5-4.5-20(a) (West 2010).
¶ 60       Accordingly, we reverse the order of the circuit court denying vacatur of defendant’s
       sentence, vacate said sentence, and remand for a sentencing hearing consistent with this
       decision.

¶ 61      Vacated and remanded with directions.

¶ 62      JUSTICE STERBA, specially concurring.
¶ 63      Although I concur in the result, I write separately because I do not believe a Teague
       analysis is necessary. The Teague Court addressed the issue of the retroactivity of a new
       constitutional rule of criminal procedure. Teague, 489 U.S. at 299. The Court formally
       adopted the rule that new rules of criminal procedure do not generally apply retroactively to

                                                -13-
       cases on collateral review, and can only be applied retroactively if they meet one of two
       exceptions. Id. at 305-06, 310. Although the first exception appears to describe a new
       substantive rule as opposed to a procedural rule, the Teague Court did not specifically
       address the retroactivity of new substantive rules or the distinction between the two types of
       rules.
¶ 64        In Schriro, the Court noted the distinction between new substantive rules and new
       procedural rules, and explicitly stated that substantive rules generally apply retroactively on
       collateral review. Schriro, 542 U.S. at 351. The Court explained that because such rules
       “necessarily carry a significant risk that a defendant *** faces a punishment that the law
       cannot impose upon him,” they should be retroactively applied. (Internal quotation marks
       omitted.) Id. at 352. The Court further observed that, while it has sometimes referred to rules
       of this type as falling under one of the exceptions to Teague’s bar on retroactivity, “they are
       more accurately characterized as substantive rules not subject to the bar.” (Emphasis added.)
       Id. at n.4.
¶ 65        As the majority notes, the states of Florida and Michigan have considered the
       retroactivity of Miller on collateral review. Supra ¶¶ 50-53 (citing Geter v. State, No. 3D12-
       1736, 2012 WL 4448860 (Fla. Ct. App. Sept. 27, 2012), and People v. Carp, No. 307758,
       2012 WL 5846553 (Mich. App. Nov. 15, 2012)). In declining to apply Miller retroactively,
       the Geter and Carp courts both concluded that Miller announced a new procedural rule
       because the Court did not forbid a sentence of life imprisonment for juveniles. Supra ¶¶ 52-
       53. However, neither court appears to have fully appreciated the distinction that the Miller
       rule forbids a mandatory sentence of life imprisonment for juveniles. See supra ¶ 37 (quoting
       Miller, 567 U.S. at ___, 132 S. Ct. at 2475). I also recognize that another division of this
       court very recently addressed the retroactivity of Miller on collateral review. Supra ¶ 49
       (citing Williams, 2012 IL App (1st) 111145). The Williams court determined that Miller “not
       only changed procedures, but also made a substantial change in the law.” Williams, 2012 IL
       App (1st) 111145, ¶ 51. The Williams court then held that Miller announced a “watershed
       rule[ ] of criminal procedure.” (Internal quotation marks omitted.) Id. (quoting People v.
       Sanders, 238 Ill. 2d 391, 401 (2010)). Because of the distinction made by the Schriro Court
       between substantive and procedural rules as noted above, I do not believe the Williams court
       needed to reach the issue of whether the Miller rule constituted a watershed rule of criminal
       procedure.
¶ 66        In agreeing with the majority that the new rule announced in Miller is substantive rather
       than procedural (supra ¶ 56), I find Sumner v. Shuman, 483 U.S. 66 (1987), instructive.
       Decided prior to Teague, the Sumner decision does not make a distinction between
       substantive and procedural rules. However, the Sumner Court determined that a statute that
       mandated the imposition of the death penalty on a life-term inmate who has been convicted
       of murder was unconstitutional. Id. at 77-78. The Court noted that the statute impermissibly
       created the risk that the death penalty would be imposed in spite of the fact that mitigating
       factors potentially exist that would call for a less severe penalty. Id. at 82. The defendant in
       Sumner to whom the new rule was applied was before the court on collateral review. Id. at
       68. Although not characterized by the Sumner Court as such, the clear implication of the
       Sumner decision is that a new rule that does not prohibit a certain sentence in every case but

                                                -14-
       prohibits the mandatory imposition of that sentence is a substantive rule rather than a
       procedural rule. Moreover, because the Supreme Court has likened a sentence of life without
       the possibility of parole to the death penalty (see Graham, 560 U.S. at ___, 130 S. Ct. at
       2027), the Sumner rule is analogous to the rule announced in Miller.
¶ 67       The Teague Court observed that whether a new rule should be given prospective or
       retroactive effect should be addressed at the time of the decision announcing the new rule.
       Teague, 489 U.S. at 300. The Court further noted that “once a new rule is applied to the
       defendant in the case announcing the rule, evenhanded justice requires that it be applied
       retroactively to all who are similarly situated.” Id. In applying the new rule to Jackson, a
       defendant whose case was before the Court on collateral review, the Miller Court made it
       clear that the new rule was to be applied retroactively on collateral review.
¶ 68       Because the Miller Court applied the rule to both defendants before the Court, including
       the defendant whose case was before it on collateral review (supra ¶ 57), it is clear that
       justice requires that the Miller rule be applied to defendant in the case sub judice. Moreover,
       as previously noted, I agree with the majority’s conclusion that the new rule announced in
       Miller is a substantive rule (supra ¶ 56). Therefore, in light of the Schriro Court’s statement
       that substantive rules are not subject to the Teague bar and the Miller Court’s application of
       the new rule to a defendant whose case was before it on collateral review, I concur in the
       result but would hold that a Teague analysis is not needed.




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