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                                  Supreme Court                               Date: 2018.03.02
                                                                              15:19:13 -06'00'




                          People v. Holman, 2017 IL 120655




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
Court:               RICHARD HOLMAN, Appellant.



Docket No.           120655



Filed                September 21, 2017



Decision Under       Appeal from the Appellate Court for the Third District; heard in that
Review               court on appeal from the Circuit Court of Madison County, the Hon.
                     Charles V. Romani, Judge, presiding.



Judgment             Affirmed.


Counsel on           Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
Appeal               Defender, and Amanda R. Horner, Assistant Appellate Defender, of
                     the Office of the State Appellate Defender, of Mt. Vernon, for
                     appellant.

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

                     Bluhm Legal Clinic, of Chicago (Shobha L. Mahadev and Scott F.
                     Main, of counsel, and Mila Babic and Betsy Varnau, Law Students),
                     for amicus curiae Children & Family Justice Center.
     Justices                    JUSTICE THEIS delivered the judgment of the court, with opinion.
                                 Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
                                 Garman, and Burke concurred in the judgment and opinion.



                                                    OPINION

¶1         The central issue in this case is whether defendant Richard Holman, who received a
       sentence of life without parole for a murder that he committed at age 17, is entitled to a new
       sentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012). We
       hold that the defendant’s original sentencing hearing complied with Miller and affirm the
       Madison County circuit court’s decision to deny his motion for leave to file a successive
       postconviction petition.

¶2                                            BACKGROUND
¶3         On July 13, 1979, Rodney Sepmeyer returned from work to the rural house near downstate
       Maryville where he lived with his 83-year-old grandmother, Esther Sepmeyer. Inside, Rodney
       found Esther’s dead body kneeling and slumped forward over the side of a bed in a bedroom
       that they shared. She had been shot in the cheek just below the right eye, and a pool of blood
       stained the sheets. The house was ransacked, and a television, a turntable, a radio, and a
       lawnmower were missing. Rodney’s .22-caliber rifle also was missing, and the metal cabinet
       in the bedroom where he stored the gun was open.
¶4         Rodney summoned his father, Lenard, who lived nearby. Lenard called the police. A crime
       scene technician found a spent .22-caliber shell casing at the base of the bedroom heating
       stove, as well as the empty rifle box and an empty box of rounds on the kitchen floor. The
       technician lifted latent fingerprints from the handle of a small mirror left on the bedroom floor
       and from the door of the metal cabinet. The coroner’s physician later recovered a .22-caliber
       bullet from Esther’s neck. According to the physician, Esther was likely knocked unconscious
       after being shot, but she may have lived for as long as a half-hour. After the autopsy, the
       investigation of Esther’s murder stalled.
¶5         Several weeks later, the defendant and Girvies Davis were arrested and incarcerated in the
       St. Clair County jail for an unrelated offense. While there, the defendant and Davis both made
       inculpatory statements about their collaboration in a crime spree through Madison and St. Clair
       Counties. In his own handwriting, Davis listed 11 homicides, shootings, and robberies, which
       included Esther’s murder. The defendant told police officers about eight homicides, all of
       which appeared on Davis’s list, in addition to Esther’s murder. Regarding that offense, both the
       defendant and Davis admitted that they took items from her house, but each accused the other
       of being the shooter.1 They were charged by information with three counts of first degree

           1
             The defendant’s statement was reduced to writing several months after it was made by the police
       officer who interrogated him. That written statement does not appear in the record, but the officer
       testified at trial as to its contents. Davis’s statement was reduced to writing by another police officer the
       day it was made. That written statement does appear in the record, as well as in People v. Davis, 97 Ill.
       2d 1, 8-9 (1983).

                                                        -2-
     murder. The police obtained a warrant and searched Davis’s residence, where they found the
     radio and the lawnmower.2 The State’s fingerprint expert later matched the defendant’s left
     index fingerprint to the fingerprints lifted from the mirror and the cabinet.
¶6       The defendant and Davis were tried together. On March 16, 1981, a jury found the
     defendant guilty of first degree murder. 3 Because he was five weeks from his eighteenth
     birthday at the time of the offense, he was not eligible for the death penalty. See Ill. Rev. Stat.
     1979, ch. 38, ¶ 9-1(b). The multiple-murder sentencing statute in effect at that time provided
     that the court “may sentence the defendant to a term of natural life imprisonment” if any of the
     aggravating factors in section 9-1(b) of the Criminal Code of 1961 were present. Ill. Rev. Stat.
     1979, ch. 38, ¶ 1005-8-1(a)(1). One of those aggravating factors was the prior murders of two
     or more persons. Ill. Rev. Stat. 1979, ch. 38, ¶ 9-1(b)(3). The case proceeded to sentencing.
¶7       The Madison County circuit court’s probation and court services department prepared a
     presentence investigation report (PSI).4 The PSI included the defendant’s criminal history. At
     age 14, he was adjudicated delinquent for burglary and placed on two years’ probation. At age
     15, he was adjudicated delinquent for three counts of criminal damage to property and
     committed to the Department of Corrections’ juvenile division. The defendant was paroled and
     then arrested for burglary three months later. His parole was revoked, and he was returned to
     the Department of Corrections. The defendant was paroled again at age 17. While he was free,
     Esther was murdered. The PSI contained the defendant’s statement to the probation officer
     about that offense:
             “I fenced the stolen stuff but I didn’t commit the home invasion. I wasn’t present when
             the murder took place. Girvies Davis made a statement indicating my name. That gave
             police enough grounds to question me. I refused to talk because I didn’t know
             anything.”
¶8       The PSI stated that the defendant’s father died when the defendant was around 7 years old,
     and his stepfather died when he was around 16. The defendant reportedly had “a close, loving
     relationship” with his mother and six siblings. He was never married but reportedly had two
     young children. The defendant was healthy and suffered from no known physical disabilities.
     According to the PSI, the defendant had between seven and nine years of formal education, but
     he was “borderline retarded.” The probation officer concluded:
                 “The defendant expressed no guilt for this offense or remorse for the victim, who
             was an 82 year old woman who posed no physical threat to him.


         2
            Davis’s statement explained why the police never recovered the television or the rifle. According
     to Davis, he and the defendant sold the television at a bar and then “drove halfway across [the pay
     bridge] and threw the 22 rifle into the river” on the night of Esther’s murder. The missing turntable was
     never mentioned or found.
          3
            Davis was also found guilty. He received the death penalty, but this court vacated that sentence
     and remanded for a new sentencing hearing. Davis, 97 Ill. 2d at 29. Earlier, Davis received the death
     penalty for the first degree murder of Charles Biebel. See People v. Davis, 95 Ill. 2d 1 (1983). Evidence
     at that trial indicated that the defendant was the “actual triggerman” responsible for Biebel’s death.
     Davis, 97 Ill. 2d at 24.
          4
            The first page of the PSI erroneously stated the defendant’s birth date as August 20, 1960, but later
     stated it correctly as August 20, 1961.

                                                      -3-
                    The defendant’s history of senseless criminal acts of mortal violence toward others
                and lack of remorse for his victims indicates to this officer that the defendant has no
                predilection for rehabilitation.”
¶9         Attached to the PSI were three psychological reports—two from a psychiatrist, Dr. Syed
       Raza, and one from a psychologist for the circuit court’s probation department, Cheryl Prost.
       Dr. Raza’s initial report described his interview with the defendant. The defendant offered an
       alternate version of the events on the date of Esther’s murder. According to the defendant, he
       drove Davis’s wife to work, drank beer at a bar with Davis, took a nap at home, picked up a
       girl, visited another bar and a “dice house,” and ended up at home. He awoke the next morning
       and heard police officers speaking to his mother. The defendant was taken to the St. Clair
       County jail, where a detective interrogated him. He asserted that he did not understand most of
       the questions, and the detective “seemed mad at him and hit him.” The defendant then was
       informed that he was charged with murder. Even though the defendant attended his own trial,
       he insisted that he still did not know who had been murdered or how the crime occurred: “My
       lawyer won’t tell me either. They say I am stupid.”
¶ 10       Dr. Raza noted that the defendant mentioned an incident prior to 1977 when he fell from a
       two-story building and hit his head. Afterwards, he was seen by a psychiatrist in Rockford. The
       defendant did not believe that he had a drinking problem. He had used marijuana for almost a
       year before his arrest. Dr. Raza found that the defendant’s attitude was “a mixture of extreme
       apprehension with a sense of hopelessness, some depression and maybe a touch of
       manipulativeness.” The interview was difficult because the defendant’s eye contact was
       extremely poor and his answers were very vague. Dr. Raza detected no “thought disturbance”
       and tentatively diagnosed the defendant with “borderline or dull normal intelligence, acute
       reactive anxiety and some depression,” pending further evaluation and testing.
¶ 11       Prost’s report described her interview with and tests of the defendant. The defendant again
       mentioned his childhood fall and stated that, since then, he had had a severe headache “like
       dynamite ready to explode,” which he treated with aspirin every day. Contrary to the PSI, Prost
       reported that the defendant stated that he was in seventh grade remedial classes before
       dropping out of school. On an intelligence test, the defendant scored in the borderline or mildly
       retarded range. Prost attributed some of his performance to “neurological impairment.” Other
       tests confirmed that and indicated a high probability of organic brain damage. Prost
       recommended a neurological evaluation.
¶ 12       After reviewing Prost’s report, Dr. Raza made an addendum to his initial report. Dr. Raza
       stated that he had reviewed the medical records of the defendant from the Warren G. Murray
       Children’s Home in Centralia, where the defendant lived for two months in 1976. The records
       showed that the defendant received a full physical examination, which revealed no deficits. He
       was diagnosed as mildly mentally retarded. According to Dr. Raza, therapists at the home
       stated that the defendant “is at times not aware of his surroundings and is easily led into doing
       ‘bad deeds,’ ” due to his lack of confidence and high need for approval from more intelligent
       peers. Dr. Raza observed that the defendant’s intelligence test results improved between his
       time at the children’s home and his interview with Prost: “This improvement can be explained
       by growing up in chronological age and maturation process of his central nervous system.” The
       defendant’s verbal intelligence indicated that he does have capacity for making a “socially
       appropriate judgment.” Dr. Raza opined, “Taking all these factors into consideration, it is my


                                                   -4-
       opinion that I do not see him as severely handicapped in terms of intellectual ability as to
       interfere with his ability to see right from wrong.”
¶ 13       At the sentencing hearing, the State presented one witness, a former East St. Louis
       homicide section police officer. The officer stated that he investigated the murder of Frank
       Cash and the attempted murder of John Ostman and that he testified in the defendant’s trial for
       those offenses. The officer also stated that he investigated the murder of John Oertel and that
       he testified in the defendant’s trial for that offense. Oertel was killed roughly two months
       before Esther, while the defendant was still 17 years old. Cash was killed a month after Esther,
       after the defendant had turned 18. The State introduced certified copies of the defendant’s
       convictions in both cases. In the former he received concurrent 35- and 25-year sentences. In
       the latter he received a 40-year sentence.
¶ 14       Before closing arguments, the defendant’s attorney told the court that the defendant did not
       want to offer any mitigating evidence and that the defendant’s mother did not want to testify on
       his behalf. Consequently, the defendant’s attorney conceded, “I have no evidence to present at
       this time” and declined the trial court’s invitation to make any additions, corrections, or
       modifications to the PSI. In closing, the prosecutor highlighted the defendant’s criminal
       history and the fact that he was on parole when Esther was murdered. According to the
       prosecutor, Esther was old and feeble and posed no threat to the defendant. The prosecutor
       noted that the defendant still denied any involvement in the murder, despite his fingerprints at
       the scene. The prosecutor added:
                    “I believe more than about any other Defendant that I have seen come through here
                Mr. Holman deserves to be removed from society for the rest of his natural life. It’s
                only an accident of birth that he did not qualify for the death penalty, having been too
                young when these offenses were committed to have qualified. Not being able to seek
                the death penalty on Mr. Holman, I believe that we have to seek the next best thing ***.
                *** I believe that the life sentence here is necessary to deter others from going out on
                similar crime sprees ***.”
¶ 15       The defendant’s attorney argued that the question before the court was whether the court
       “should assess natural life to this very young man.” The defendant’s attorney asked the court to
       consider rehabilitation as a goal and argued that isolation in the prison system militates against
       that goal. Finally, the defendant’s attorney pleaded with the trial court to consider “some other
       alternative than that requested by the State and to give this young man an opportunity.”
¶ 16       The trial court offered the defendant an opportunity to make a statement. The defendant
       said:
                    “Your Honor, [the prosecutor] made the statement that I was convicted of
                several—three counts of Murder before. That I have been convicted as of what they say
                as accessory of the Murder, of knowing this Murder have taken place. I was never
                convicted of no Murder. And that is my statement.”
¶ 17       Then the trial court spoke:
                    “In this sentence the Court has considered the factors enumerated in the Criminal
                Code as factors in Mitigation and factors in Aggravation. The Court does not find any
                factors in Mitigation. There are many factors in Aggravation. The Court has considered
                the evidence presented at the trial in this cause. The Court has considered the
                presentence investigation. The Court has considered the evidence presented at this

                                                   -5-
               hearing today and the arguments of counsel. And the Court believes that this Defendant
               cannot be rehabilitated, and that it is important that society be protected from this
               Defendant.
                   It is therefore the sentence of this Court and you are hereby sentenced, Mr. Holman,
               to the Department of Corrections for the rest of your natural life.”
¶ 18       The defendant appealed his conviction but did not challenge his sentence. The appellate
       court affirmed the conviction. People v. Holman, 115 Ill. App. 3d 60 (1983).
¶ 19       In 2001, the defendant filed two pro se postconviction petitions. Both petitions were
       dismissed, and the defendant’s appeals from those rulings were also dismissed. In 2009, the
       defendant filed a pro se “petition for relief from void judgment” under section 2-1401 of the
       Code of Civil Procedure. See 735 ILCS 5/2-1401 (West 2010). That petition was denied, and
       the appellate court affirmed. People v. Holman, 2011 IL App (5th) 090678-U.
¶ 20       In 2010, the defendant filed a pro se petition for leave to file a successive postconviction
       petition, the pleading that began the case before us. The defendant raised several claims; his
       final claim purported to assert his actual innocence. That petition was denied. On appeal, the
       defendant abandoned his earlier claims and instead argued that his life sentence was
       unconstitutional under Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S.
       48 (2010), and particularly Miller. The appellate court rejected that argument because the
       defendant had not raised it before the trial court. People v. Holman, 2012 IL App (5th)
       100587-U, ¶ 18. The appellate court further noted that the defendant’s sentence was not
       unconstitutional under Miller because the defendant here was “afforded a ‘sentencing hearing
       where natural life imprisonment [was] not the only available sentence.’ ” Id. ¶ 19 (quoting
       People v. Morfin, 2012 IL App (1st) 103568, ¶ 59). The defendant appealed.
¶ 21       While the defendant’s petition for leave to appeal was pending before us, we decided
       People v. Davis, 2014 IL 115595, which held that Miller announced a new substantive rule of
       constitutional law and that rule applied retroactively. Consequently, we denied the defendant’s
       petition but vacated the appellate court’s initial decision in this case and remanded so that court
       could consider whether, in light of Davis, a different result was warranted. People v. Holman,
       No. 115597 (Jan. 28, 2015) (supervisory order).
¶ 22       On remand, the appellate court reached the merits of the defendant’s Miller claim. 2016 IL
       App (5th) 100587-B. The appellate court recognized that Miller and, more recently,
       Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), require trial courts to consider
       youth and its attendant characteristics before imposing life sentences on juveniles. 2016 IL
       App (5th) 100587-B, ¶¶ 35-37. Because the trial court in this case did so, the defendant’s
       sentence was constitutionally permissible. Id. ¶ 46. The appellate court rejected the
       defendant’s alternative argument that Miller should be extended to create a categorical ban on
       juvenile life sentences. Id. ¶ 52.
¶ 23       This court allowed the defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff.
       Mar. 15, 2016). We also allowed the Children & Family Justice Center of the Bluhm Legal
       Clinic at Northwestern Pritzker School of Law to file an amicus curiae brief in support of the
       defendant. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). On the legal issues before us, our review
       is de novo. People v. Thompson, 2015 IL 118151, ¶ 25.




                                                    -6-
¶ 24                                              ANALYSIS
¶ 25        The Post-Conviction Hearing Act offers a procedural device through which a criminal
       defendant may assert that “in the proceedings which resulted in his or her conviction there was
       a substantial denial of his or her rights under the Constitution of the United States or of the
       State of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2010). Proceedings on a
       postconviction petition are collateral to proceedings in a direct appeal and focus on
       constitutional claims that have not and could not have been previously adjudicated. See People
       v. Towns, 182 Ill. 2d 491, 502 (1998). Accordingly, issues that were raised and decided on
       direct appeal are barred from consideration by the doctrine of res judicata; issues that could
       have been raised, but were not, are forfeited. See People v. Ortiz, 235 Ill. 2d 319, 328 (2009).
       The Act itself contemplates the filing of a single petition: “Any claim of substantial denial of
       constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS
       5/122-3 (West 2010). Because successive petitions impede the finality of criminal litigation,
       that statutory bar will be relaxed only “ ‘when fundamental fairness so requires.’ ” People v.
       Coleman, 2013 IL 113307, ¶ 81 (quoting People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002)).
¶ 26        Generally, there are two such instances. See People v. Edwards, 2012 IL 111711, ¶ 22. A
       defendant may raise a due process claim of actual innocence to prevent a miscarriage of justice
       (Coleman, 2013 IL 113307, ¶ 83), or a defendant may raise any other defaulted constitutional
       claim by satisfying the so-called “cause-and-prejudice” test (id. ¶ 82). To establish “cause,”
       the defendant must show some objective factor external to the defense that impeded his ability
       to raise the claim in the initial postconviction proceeding. Pitsonbarger, 205 Ill. 2d at 460. To
       establish “prejudice,” the defendant must show the claimed constitutional error so infected his
       trial that the resulting conviction violated due process. Id. at 464. The cause-and-prejudice test
       has been codified in the Act. See 725 ILCS 5/122-1(f) (West 2010); People v. Tidwell, 236 Ill.
       2d 150, 156 (2010).
¶ 27        Initially, the State contends that the defendant’s Miller claim is “thrice-forfeited” because
       he failed to raise an as-applied challenge to his sentence in his 2010 motion for leave to file a
       successive postconviction petition, his 2012 pre-remand appellate court briefs, and his 2013
       pre-remand petition for leave to appeal. Relying upon People v. Jones, 213 Ill. 2d 498, 505
       (2004), the State asserts that a claim not raised in a postconviction petition cannot be raised for
       the first time on appeal. The State insists that the defendant’s as-applied Miller claim must be
       presented to the trial court in a motion for leave to file a successive postconviction petition.
¶ 28        The defendant contends that the State forfeited its forfeiture argument because that
       argument was raised for the first time in the State’s response brief before this court. The
       defendant’s point is well taken. If the State’s position is that the defendant should have raised
       his as-applied Miller claim in a motion for leave to file a successive postconviction petition,
       the State should have made that argument during supplemental briefing on remand when the
       defendant originally presented that claim. See People v. Lucas, 231 Ill. 2d 169, 175 (2008)
       (“The doctrine of forfeiture applies to the State as well as to the defendant and the State may
       forfeit an argument that the defendant forfeited an issue by not properly preserving it for
       review.”).
¶ 29        The State’s forfeiture aside, we would still reach the merits of the defendant’s claim. In
       Thompson, 2015 IL 118151, ¶¶ 36-37, we explained the difference between facial and
       as-applied constitutional claims:


                                                    -7-
                “Although facial and as-applied constitutional challenges are both intended to address
                constitutional infirmities, they are not interchangeable. [Citation.] An as-applied
                challenge requires a showing that the statute violates the constitution as it applies to the
                facts and circumstances of the challenging party. [Citation.] In contrast, a facial
                challenge requires a showing that the statute is unconstitutional under any set of facts,
                i.e., the specific facts related to the challenging party are irrelevant. [Citation.]
                     Because facial and as-applied constitutional challenges are distinct actions, it is not
                unreasonable to treat the two types of challenges differently ***. By definition, an
                as-applied constitutional challenge is dependent on the particular circumstances and
                facts of the individual defendant or petitioner. Therefore, it is paramount that the record
                be sufficiently developed in terms of those facts and circumstances for purposes of
                appellate review.”
¶ 30       The defendant’s claim in Thompson illustrated that point. The defendant there maintained
       that the evolving science on juvenile maturity and brain development highlighted in Miller
       applied not only to juveniles but also to young adults like himself between the ages of 18 and
       21. Id. ¶ 38. We rejected that claim because the record contained “nothing about how that
       science applies to the circumstances of defendant’s case, the key showing for an as-applied
       constitutional challenge.” Id. We stated the trial court was the most appropriate tribunal for
       such factual development. Id.
¶ 31       Thompson mentioned Davis, where we held that the statute under which a juvenile
       defendant received a mandatory life sentence was not facially unconstitutional under Miller.
       Davis, 2014 IL 115595, ¶ 32. We also held that Miller applied to, and invalidated, that
       sentence, even though the defendant’s Miller claim was raised for the first time on appeal. Id.
       ¶ 43. We excused the defendant’s failure to raise an as-applied Miller claim sooner because the
       record was sufficiently developed to address that type of claim.
¶ 32       Thompson instructs that a defendant must present an as-applied constitutional challenge to
       the trial court in order to create a sufficiently developed record. Davis creates a very narrow
       exception to that rule for an as-applied Miller claim for which the record is sufficiently
       developed for appellate review. Here, in deciding the defendant’s first petition for leave to
       appeal, we directed the appellate court to reconsider its judgment in light of Davis. Like the
       Miller claim in Davis, the Miller claim in this case does not require factual development. All of
       the facts and circumstances to decide the defendant’s claim—that his sentencing hearing did
       not comply with Miller—are already in the record. Consequently, in the interests of judicial
       economy (see People v. Bailey, 159 Ill. 2d 498, 506 (1994)), we choose to address the merits of
       the defendant’s claim, rather than requiring him to return to the trial court to file another
       motion for leave to file another successive postconviction petition and restart the process of
       adjudicating his Miller claim.5

           5
            The State has brought to our attention the recent Fourth District Appellate Court decision in
       People v. Merriweather, 2017 IL App (4th) 150407. Merriweather held that a juvenile defendant
       “forfeited his as-applied challenge to his sentence under Miller by raising it for the first time on appeal”
       and urged him to raise such a claim in a motion for leave to file a successive postconviction petition. Id.
       ¶¶ 18-19. The Fourth District departed from the First District decision in People v. Nieto, 2016 IL App
       (1st) 121604. Nieto, referencing an “implicit finding” in Thompson, stated that “juveniles can raise
       as-applied Miller challenges for the first time on appeal.” Id. ¶ 39. Merriweather and Nieto both

                                                        -8-
¶ 33        The United States Constitution prohibits “cruel and unusual punishments.” U.S. Const.,
       amend. VIII. Inherent in that prohibition is the concept of proportionality. See Graham, 560
       U.S. at 59. Criminal punishment should be “graduated and proportioned to both the offender
       and the offense.” Davis, 2014 IL 115595, ¶ 18 (citing Miller, 567 U.S. at 469, 132 S. Ct. at
       2463, and Roper, 543 U.S. at 560). When the offender is a juvenile and the offense is serious,
       there is a genuine risk of disproportionate punishment. In Roper, Graham, and Miller, the
       United States Supreme Court addressed that risk and unmistakably instructed that youth
       matters in sentencing. Roper held that the eighth amendment prohibited capital sentences for
       juveniles who commit murder. Roper, 543 U.S. at 578-79. Graham held that the eighth
       amendment prohibited mandatory life sentences for juveniles who commit nonhomicide
       offenses. Graham, 560 U.S. at 82. And Miller held that the eighth amendment prohibited
       mandatory life sentences for juveniles who commit murder. Miller, 567 U.S. at 489, 132 S. Ct.
       at 2475.
¶ 34        The defendant in this case did not receive a mandatory life sentence but rather a
       discretionary life sentence. Thus, we initially must decide whether his Miller claim is even
       viable. That is, we must decide whether Miller applies to discretionary life sentences. In Davis,
       we noted:
                   “Miller holds that a mandatory life sentence for a juvenile violates the eighth
               amendment prohibition against cruel and unusual punishment. *** Miller does not
               invalidate the penalty of natural life without parole for multiple murderers, only its
               mandatory imposition on juveniles. [Citation.] A minor may still be sentenced to
               natural life imprisonment without parole so long as the sentence is at the trial court’s
               discretion rather than mandatory.” (Emphases in original.) Davis, 2014 IL 115595,
               ¶ 43.
       Davis is correct about the scope of Miller. In Davis, however, we were not asked to decide
       whether Miller could apply to discretionary sentences. Further, we did not discuss Miller at
       length or address Montgomery at all because it had not yet been decided. We turn to those
       cases.
¶ 35        In Miller, the Court identified a foundational principle that “imposition of a State’s most
       severe penalties on juvenile offenders cannot proceed as though they were not children.”
       Miller, 567 U.S. at 474, 132 S. Ct. at 2466. That principle emerged from two lines of
       precedent: capital cases where the Court required the sentencer to consider the characteristics
       of the defendant and the circumstances of the offense before imposing the death penalty and
       so-called “categorical ban” cases, like Roper and Graham, where the Court invalidated certain
       sentences for all juvenile defendants. Roper and Graham established that “children are
       constitutionally different from adults for purposes of sentencing” in three important ways. Id.
       at 471, 132 S. Ct. at 2464. First, juveniles are more immature and irresponsible than adults. Id.
       (citing Roper, 543 U.S. at 569). Second, juveniles are more vulnerable to negative influences
       and pressures from family and peers than adults. Id. And third, juveniles are more malleable
       than adults—their characters are less fixed and their malfeasance is less indicative of


       involved as-applied Miller claims challenging so-called mandatory de facto life sentences. Because
       that type of claim is not before us here, those cases are distinguishable. We leave for another day any
       resolution of the purported appellate court split.

                                                      -9-
       irretrievable depravity. Id. Those differences lessen juveniles’ moral culpability and enhance
       their prospects for reform. Id. at 472, 132 S. Ct. at 2465. Thus, the Miller Court summarized:
                “[T]he 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, 132 S. Ct. at
                2469.
¶ 36       The Court noted, “Because that holding is sufficient to decide these cases, we do not
       consider [the petitioners’] alternative argument that the Eighth Amendment requires a
       categorical bar on life without parole for juveniles, or at least for those 14 and younger.” Id.
       The Court continued, recognizing that life without parole sentences for juvenile defendants
       may comport with the eighth amendment:
                “[G]iven 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.
                That is especially so because of the great difficulty we noted in Roper and Graham 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.’ 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.
¶ 37       The Court reiterated that its decision “mandates only that a sentencer follow a certain
       process—considering an offender’s youth and attendant characteristics—before imposing a
       particular penalty,” life imprisonment without the possibility of parole. Id. at 483, 132 S. Ct. at
       2471. Stated differently, a trial court must consider a juvenile’s “age and age-related
       characteristics and the nature of their crimes” as “mitigating circumstances.” Id. at 489, 132 S.
       Ct. at 2475. Earlier in its opinion, the Court discussed those characteristics:
                “[I]n imposing a State’s harshest penalties, a sentencer misses too much if he treats
                every child as an adult. 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 pressures 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, 132 S. Ct. at 2468.
¶ 38       Miller contains language that is significantly broader than its core holding. None of what
       the Court said is specific to only mandatory life sentences. Montgomery made that clear. In


                                                   - 10 -
       Montgomery, the Court held that Miller applied retroactively. 577 U.S. at ___, 136 S. Ct. at
       736. Because the defendant there had received a mandatory life sentence, which violated
       Miller, the Court reversed that sentence and remanded for further proceedings. In doing so, the
       Court offered insight into Miller. The Montgomery Court summarized Miller in several similar
       ways. The Court asserted that “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, 132 S. Ct. at 2469). The Court repeated that
       “Miller 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. According to the Court, “[a] hearing where ‘youth and its attendant
       characteristics’ are considered as sentencing factors is necessary to separate those juveniles
       who may be sentenced to life without parole from those who may not.” Id. at ___, 136 S. Ct. at
       735 (quoting Miller, 567 U.S. at 465, 132 S. Ct. at 2460).
¶ 39       Notably, unlike Miller, Montgomery did not specify which characteristics attend youth.
       The Court remained hesitant to create more procedural requirements for state trial courts, such
       as a requirement that courts make findings of fact regarding a juvenile’s incorrigibility, before
       imposing a life sentence. Id. at ___, 136 S. Ct. at 735. The Court emphasized, however, that
       while “Miller did not impose a formal factfinding requirement[, that] does not leave States free
       to sentence a child whose crime reflects transient immaturity to life without parole.” Id. Such a
       sentence is disproportionate under the eighth amendment. Id.
¶ 40       A handful of cases from other states have limited Miller and Montgomery to only
       mandatory life sentences. See Foster v. State, 754 S.E.2d 33, 37 (Ga. 2014); Arredondo v.
       State, 406 S.W.3d 300, 307 (Tex. App. 2013); see also Jones v. Commonwealth, 795 S.E.2d
       705, 721 (Va. 2017) (“[b]oth cases addressed mandatory life sentences without possibility of
       parole” (emphasis in original)). Those cases give insufficient regard to the Supreme Court’s
       far-reaching commentary about the diminished culpability of juvenile defendants, which is
       neither crime- nor sentence-specific. 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. See, e.g., State v. Riley,
       110 A.3d 1205, 1216 (Conn. 2015) (“Miller does not stand solely for the proposition that the
       eighth amendment demands that the sentencer have discretion to impose a lesser punishment
       than life without parole on a juvenile homicide offender”); Aiken v. Byars, 765 S.E.2d 572, 576
       (S.C. 2014) (“whether their sentence is mandatory or permissible, any juvenile offender who
       receives a sentence of life without the possibility of parole is entitled to the same constitutional
       protections afforded by the Eighth Amendment’s guarantee against cruel and unusual
       punishment”). We agree with that conclusion and hold that Miller applies to discretionary
       sentences of life without parole for juvenile defendants. We must next decide what it means to
       apply Miller.
¶ 41       The defendant urges us to adopt the characteristics mentioned in Miller, which he terms the
       “Miller factors,” and direct trial courts to use them when revisiting life sentences imposed on
       juvenile defendants before that case was decided. In response, the State acknowledges that
       Miller requires trial courts to consider the mitigating characteristics of youth. The State,


                                                    - 11 -
       however, contends that, although the Court provided an illustrative list of some of those
       characteristics, it did not require consideration of any specific factors.
¶ 42        The appellate court observed that courts in other states have struggled with how to apply
       Miller. 2016 IL App (5th) 100587-B, ¶ 33 (quoting Riley, 110 A.3d at 1214 n.5). Some courts
       have read Miller narrowly, holding that trial courts must consider generally mitigating
       circumstances related to a juvenile defendant’s youth. See, e.g., Ex Parte Henderson, 144 So.
       3d 1262, 1283 (Ala. 2013) (“the Miller Court did not delineate specifically which factors to use
       in sentencing a juvenile”); Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (holding that the
       sentencing court in that case complied with the requirements of Miller by taking into account
       how juveniles are different from adults); State v. Long, 138 Ohio St. 3d 478, 2014-Ohio-849, 8
       N.E.3d 890, ¶¶ 15-16 (stating that Miller “does not lay out the ‘certain process’ that trial judges
       should follow when sentencing juveniles” and that various factors “may prove helpful” but are
       not required).
¶ 43        Other courts have read Miller more broadly, holding that trial courts must consider
       specifically the characteristics mentioned by the Supreme Court. See, e.g., People v. Gutierrez,
       324 P.3d 245, 268-69 (Cal. 2014) (“Miller discussed a range of factors relevant to a sentencer’s
       determination of whether a particular defendant” is irreparably corrupt); Riley, 110 A.3d at
       1216 (quoting Miller’s list of characteristics); State v. Null, 836 N.W.2d 41, 74-76 (Iowa 2013)
       (listing factors and stating that Miller provided “clearer guidance on the considerations given
       in sentencing”); State v. Fletcher, 47,777, p. 10 (La. App. 2 Cir. 4/10/13); 112 So. 3d 1031
       (remanding for “a more thorough review of the appropriate factors enunciated in Miller”);
       State v. Hart, 404 S.W.3d 232, 238 (Mo. 2013) (en banc) (holding that the juvenile defendant’s
       life sentence was unconstitutional because “the sentence [must] consider whether this
       punishment is just and appropriate in light of [his] age, maturity and the other factors discussed
       in Miller”); State v. Ali, 855 N.W.2d 235, 256-57 (Minn. 2014) (stating that “mitigating
       circumstances might include, but are not limited to,” the characteristics in Miller); Parker v.
       State, 2011-KA-01158-SCT (¶ 19) (Miss. 2013) (noting that Miller identified “several
       factors,” then quoting Miller’s list of characteristics); Luna v. State, 387 P.3d 956, 962 (Okla.
       2016) (quoting Miller and labeling three of the listed characteristics “important youth-related
       considerations”); Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. 2012) (stating that “although
       Miller did not delineate specifically what factors a sentencing court must consider, at a
       minimum it should consider” a paraphrased version of the listed characteristics); Aiken, 765
       S.E.2d at 577 (quoting the factors listed in Miller); Bear Cloud v. State, 2013 WY 18, ¶ 42, 294
       P.3d 36 (quoting the factors listed in Miller and stating that those factors are “not exhaustive”).
       As the California Supreme Court observed, “the emerging body of post-Miller case law” has
       held that a trial court must consider some variant of the Miller factors before imposing a life
       sentence without the possibility of parole. Gutierrez, 324 P.3d at 269.
¶ 44        We adopt the latter approach. Not only is that approach consistent with People v. Reyes,
       2016 IL 119271, ¶ 3, where we referred to the characteristics listed in Miller as “mitigating
       factors,” it is also consistent with our earlier case law. We have long held that age is not just a
       chronological fact but a multifaceted set of attributes that carry constitutional significance. See
       People v. McWilliams, 348 Ill. 333, 336 (1932) (stating that, in sentencing a juvenile
       defendant, the trial court “may search anywhere” for aggravation and mitigation evidence,
       including “the general moral character of the offender, his mentality, his habits, his social
       environments, his abnormal or subnormal tendencies, his age, his natural inclination or

                                                   - 12 -
       aversion to commit crime, the stimuli which motive his conduct, and *** [his] life, family,
       occupation, and record”); People v. Miller, 202 Ill. 2d 328, 341 (2002) (holding that “a
       mandatory sentence of natural life in prison with no possibility of parole grossly distorts the
       factual realities of the case and does not accurately represent [the] personal culpability” of the
       15-year-old defendant); cf. People v. La Pointe, 88 Ill. 2d 482, 497 (1981) (“[h]ighly
       relevant—if not essential—to [a sentencing judge’s] selection of an appropriate sentence is the
       possession of the fullest information possible concerning the defendant’s life and
       characteristics” (internal quotation marks omitted)).
¶ 45       Additionally, consideration of the Miller factors is consistent with section 5-4.5-105 of the
       Unified Code of Corrections, which now requires the trial court to consider factors taken from
       the Supreme Court’s list. See 730 ILCS 5/5-4.5-105 (West 2016). Because Miller is retroactive
       (see Montgomery, 577 U.S. at ___, 136 S. Ct. at 736; Davis, 2014 IL 115595, ¶ 39), all
       juveniles, whether they were sentenced after the statutory amendment became effective on
       January 1, 2016, or before that, should receive the same treatment at sentencing. See People v.
       Ortiz, 2016 IL App (1st) 133294, ¶ 23.6
¶ 46       Under Miller and Montgomery, a juvenile defendant may be sentenced to life
       imprisonment without parole, but only if the trial court determines that the defendant’s conduct
       showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the
       possibility of rehabilitation. The court may make that decision only after considering the
       defendant’s youth and its attendant characteristics. Those characteristics include, but are not
       limited to, the following factors: (1) the juvenile defendant’s chronological age at the time of
       the offense and any evidence of his particular immaturity, impetuosity, and failure to
       appreciate risks and consequences; (2) the juvenile defendant’s family and home environment;
       (3) the juvenile defendant’s degree of participation in the homicide and any evidence of
       familial or peer pressures that may have affected him; (4) the juvenile defendant’s
       incompetence, including his inability to deal with police officers or prosecutors and his
       incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for
       rehabilitation. See Miller, 567 U.S. at 477-78, 132 S. Ct. at 2468.
¶ 47       For juvenile defendants like the defendant in this case, who were sentenced before the
       statutory amendment, any inquiry into the Miller factors is backwards-looking. As Graham
       instructed, “[e]ven if the State’s judgment that [the defendant] was incorrigible were later
       corroborated by prison misbehavior or failure to mature, the sentence was still disproportionate
       because that judgment was made at the outset.” Graham, 560 U.S. at 73. Bad conduct while
       imprisoned cannot buttress a finding of incorrigibility. Similarly, good conduct while
       imprisoned cannot undercut such a finding. In revisiting a juvenile defendant’s life without
       parole sentence, the only evidence that matters is evidence of the defendant’s youth and its
       attendant characteristics at the time of sentencing. Whether such evidence exists depends upon
       the state of the record in each case. A court revisiting a discretionary sentence of life without
       parole must look at the cold record to determine if the trial court considered such evidence at
       the defendant’s original sentencing hearing. We must decide whether the trial court did so
       here.

           6
             According to a recent report, there are 20 juveniles, including the defendant, serving discretionary
       life sentences in Illinois. See A State-by-State Look at Juvenile Life Without Parole, Associated Press,
       July 31, 2017, https://apnews.com/9debc3bdc7034ad2a68e62911fba0d85.

                                                      - 13 -
¶ 48        In announcing the defendant’s sentence, the trial court explicitly stated that it considered
       the trial evidence and the PSI, as well as the evidence and arguments from the sentencing
       hearing. The trial court knew the defendant was 17 at the time of the offense, and the
       prosecutor and the defendant’s attorney both highlighted his age in their arguments at the
       sentencing hearing. The PSI and the psychological reports provided some insight into his
       mentality but did not depict him as immature, impetuous, or unaware of risks. The PSI
       included information about the defendant’s family. Although his father and his stepfather had
       died, he reportedly maintained a close relationship with his mother and siblings. The evidence
       at trial showed that there was some dispute between the defendant and Davis about who shot
       Esther, but both were intimately involved with the offense. The defendant’s fingerprints were
       found in two locations at the house, including the cabinet where the rifle was kept. The PSI
       alerted the trial court to the defendant’s susceptibility to peer pressure, as well as his low
       intelligence and possible brain damage from a head injury, but there was nothing presented at
       trial or sentencing to indicate that the defendant was incompetent and could not communicate
       with police officers or prosecutors or assist his own attorney. Dr. Raza’s second report spoke
       positively about the defendant’s verbal intelligence. As to the defendant’s prospects for
       rehabilitation, the PSI included a statement from the probation officer, who found “no
       predilection for rehabilitation,” in light of the defendant’s “history of senseless criminal acts of
       mortal violence toward others and lack of remorse for his victims.”
¶ 49        The defendant insists that the trial court did not, in fact, consider any mitigating
       circumstances of his youth because the trial court stated that it found “no mitigating factors.”
       The defendant misapprehends the trial court’s statement. The court actually said that it
       considered the statutory factors in aggravation and mitigation and that it found none of the
       latter. The trial court’s statement is undeniably true. There was no evidence at trial or
       sentencing regarding any of the 12 factors listed in section 1005-5-3.1(a). See Ill. Rev. Stat.
       1979, ch. 38, ¶ 1005-5-3.1(a). Further, the defendant forgets that he advised his attorney that he
       did not want to offer any mitigating evidence and his mother advised his attorney that she did
       not want to testify on his behalf. The defendant’s attorney informed the court of their wishes
       and acknowledged, “I have no evidence to present at this time.” And the defendant’s attorney
       specifically declined the trial court’s invitation to make any additions, corrections, or
       modifications to the PSI. In short, the defendant had every opportunity to present evidence to
       show that his criminal conduct was the product of immaturity and not incorrigibility. See
       Montgomery, 577 U.S. at ___, 136 S. Ct. at 736 (juveniles facing life sentences “must be given
       the opportunity to show their crime did not reflect irreparable corruption”). He chose to offer
       nothing.
¶ 50        Thus, the trial court had no evidence to consider on any of the statutory factors in
       mitigation, but some evidence related to the Miller factors. On the other side of the scale, the
       trial court had significant evidence to consider on the statutory factors in aggravation. See Ill.
       Rev. Stat. 1979, ch. 38, ¶ 1005-5-3.2. The defendant admits in his reply brief that “there are
       bad facts.” That is an understatement. The trial court knew those facts, having presided over
       the case from pretrial motion hearings through the trial and the sentencing hearing. The court
       concluded that the defendant’s conduct placed him beyond rehabilitation and sentenced him to
       life without parole. The defendant’s sentence passes constitutional muster under Miller.
¶ 51        Finally, we note that amicus asks for a categorical ban on life sentences for juveniles. We
       refuse to adopt such a rule. Whether or not discretionary life sentences for juveniles are

                                                    - 14 -
       advisable is a question for legislators. Whether or not such sentences are constitutional is a
       question for judges, and the justices of the United States Supreme Court have so far declared
       that they may be, provided the trial court complies with Miller. Even the defendant agrees that
       “[n]othing in this Court’s jurisprudence or Miller held that a natural life sentence may never be
       appropriate.”

¶ 52                                          CONCLUSION
¶ 53       For the reasons that we have stated, we affirm the appellate court’s judgment, which
       affirmed the trial court’s decision to deny the defendant’s motion for leave to file a successive
       postconviction petition.

¶ 54      Affirmed.




                                                  - 15 -
