                                            2018 IL App (3d) 170287

                                Opinion filed December 20, 2018
       _____________________________________________________________________________

                                                    IN THE

                                       APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                      2018

       THE PEOPLE OF THE STATE OF                        )      Appeal from the Circuit Court
       ILLINOIS,                                         )      of the 12th Judicial Circuit,
                                                         )      Will County, Illinois,
                Plaintiff-Appellee,                      )
                                                         )      Appeal No. 3-17-0287
                v. 	                                     )      Circuit No. 00-CF-2095

                                                         )

       TERRANCE ROBINSON,                                )      Honorable

                                                         )      Daniel J. Rozak,
                Defendant-Appellant.                     )      Judge, Presiding.
       _____________________________________________________________________________

             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, No. 3-01-0788 (2003) (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

             1
               Though labeled as a successive petition, the filing was the defendant’s first postconviction
     petition, and was treated as such by the circuit court.
                                                          2

       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.

¶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.


                                                           3

¶ 11          In People v. Reyes, 2016 IL 119271, ¶ 9, 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 66th 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


                                                        4

       App (1st) 142931, ¶ 62 (50-year sentence); People v. Ortiz, 2016 IL App (1st) 133294, ¶ 24 (60

       years); Bear Cloud v. State, 20147 WY 113, ¶ 33, 334 P.3d 132, 142 (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, ¶ 1 (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

               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.
                                                           5

       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.

¶ 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.




               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.
                                                           6

