                                      2018 IL 121932



                                         IN THE

                               SUPREME COURT

                                            OF

                          THE STATE OF ILLINOIS





                                    (Docket No. 121932)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                          DARIEN HARRIS, Appellee.


                              Opinion filed October 18, 2018.



        JUSTICE KILBRIDE delivered the judgment of the court, with opinion. 


         Chief Justice Karmeier and Justices Thomas, Garman, and Theis concurred in

     the judgment and opinion. 


        Justice Burke specially concurred, with opinion. 


        Justice Neville took no part in the decision.




                                         OPINION

¶1       The defendant, Darien Harris, was convicted of first degree murder (720 ILCS
     5/9-1(a)(1) (West 2010)), attempted first degree murder (720 ILCS 5/8-4(a), 9-1
     (West 2010)), and aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1)
     (West 2010)) and sentenced to a mandatory minimum aggregate term of 76 years’
     imprisonment. Defendant was 18 years, 3 months of age at the time of the offenses.
     The appellate court vacated defendant’s sentences and remanded for resentencing,
     holding that, as applied to his circumstances, the aggregate prison term violates the
     proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I,
     § 11). 2016 IL App (1st) 141744. For the following reasons, we affirm in part and
     reverse in part the appellate court’s judgment.


¶2                                    BACKGROUND

¶3       Defendant was charged with several offenses following a shooting at a Chicago
     gas station. At defendant’s bench trial, Ronald Moore testified that he was riding in
     the backseat of a car driven by his younger brother, Rondell Moore. A person
     identified as Marcus Diggs was also in the car. When the car began to overheat,
     Rondell drove into a gas station parking lot and parked the car, and Rondell and
     Marcus Diggs went into the store to buy antifreeze. A local mechanic Ronald knew
     as “Red,” later identified as Quincy Woulard, arrived on his bicycle and began
     looking under the hood of the car. Rondell came back to the car and was standing
     outside talking to Woulard.

¶4       Ronald stayed in the backseat of the car and saw a black Lexus turn into the gas
     station parking lot. Ronald testified that he had seen the Lexus previously and
     recognized the driver, but he did not know the driver’s name. The Lexus went to the
     other side of the gas station building where Ronald could no longer see it. A short
     time later, Ronald heard gunshots, looked out the rear driver’s-side window, and
     saw defendant two feet away shooting a chrome handgun at Rondell. Ronald stated
     he heard more than five gunshots and testified that defendant was “standing on the
     side” of the rear driver’s-side door. Ronald recognized defendant but did not know
     his name. Defendant kept shooting as Rondell ran, jumped over a fence, and
     continued running toward a nearby Chase Bank parking lot.

¶5       Marcus Diggs jumped out of the car and ran toward a nearby McDonald’s
     restaurant. As Ronald slid over to the driver’s side of the backseat, defendant
     pointed the gun at him and pulled the trigger. The gun clicked but did not fire.




                                             -2­
¶6       When defendant began running away, Ronald got out of the car and chased him
     for 5 to 10 feet. Ronald then turned to look for his brother and found him lying in
     the Chase Bank parking lot one-half block away. Ronald saw the black Lexus drive
     through the Chase Bank parking lot with only the driver inside. Police officers later
     arrived, and Ronald overheard a message on a police radio that a Lexus had been
     stopped at a Walgreens store across the street from the bank. Ronald ran to the
     Walgreens store, recognized the Lexus, and yelled that the driver had killed his
     brother. Ronald testified at trial, however, that the driver was not the shooter and he
     did not see defendant in the Lexus when it was stopped at the Walgreens store.

¶7       Ronald further testified that a person from his neighborhood showed him a
     YouTube video a couple days after the shooting. Ronald recognized the black
     Lexus, the driver, and the shooter in the video, but he did not know their names.
     Ronald alerted the police to the video, and he subsequently identified defendant as
     the shooter from a lineup conducted eight days after the shooting. Ronald also
     identified defendant in court as the shooter.

¶8       Dexter Saffold testified that he was riding his scooter on the street in front of the
     gas station on the night of the shooting. He testified it was early evening and still
     light out. As he approached the gas station, he heard gunshots, stopped, and saw the
     shooter from about 18 feet away. Saffold identified defendant in court as the
     shooter. Saffold testified that defendant was holding a dark-colored handgun, he
     could see flashes coming from the muzzle, and he heard more than two gunshots.
     Defendant was pointing the gun at a person by a car with the hood up and another
     man on a bicycle near the car. After firing the handgun, defendant ran toward
     Saffold and bumped into him, almost dropping the gun while trying to put it in his
     pocket. Defendant ran behind Chase Bank and out of Saffold’s view. Saffold also
     saw another person running “behind, you know, the alley, a fence or somewhere.”
     As he went into the gas station to call 911, Saffold saw a man lying in the parking
     lot by the car and the bicycle. Eight days after the shooting, Saffold viewed a lineup
     and identified defendant as the shooter.

¶9       Quincy Woulard testified that he often helped people with car repairs at the gas
     station. He saw his friend Rondell Moore, known by his nickname “Blink,” at the
     gas station with his car that was overheating. Woulard was looking under the hood
     of the car when he heard three gunshots and fell to the ground. He heard someone




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       say, “he runnin [sic] down the alley,” and he saw someone running there. Woulard
       was shot three times but testified he did not see who shot him.

¶ 10       Aaron Jones testified that he was driving the black Lexus and selling marijuana
       when defendant, known by Jones as “Slim” or “Chucky,” asked him for a ride to the
       gas station. Jones drove defendant to the gas station and dropped him off. Jones
       testified that he then drove to his home six blocks away but came back to buy
       cigarettes at the Walgreens store across the street from Chase Bank. Jones testified
       he was stopped and arrested by police officers before he reached the Walgreens
       store. Later in his testimony, however, Jones recanted and stated defendant was
       never in his car, that police officers told him to identify defendant, and that the
       officers threatened him with life imprisonment if he did not testify as they wished.

¶ 11       Chicago police officer Richard Mostowski testified he received a call that a
       person had been shot and a black Lexus was leaving the scene. He stopped a black
       Lexus approximately two blocks from the gas station. After he stopped the car, a
       man approached and yelled “you killed my brother.” The driver, later identified as
       Aaron Jones, was arrested and a search of his person revealed 11 small, plastic
       bags. The parties stipulated that the plastic bags contained a total of 10.6 grams of
       cannabis. There were no passengers in the car when it was stopped.

¶ 12       A surveillance video of the gas station parking lot showed a black male with
       what appears to be a blue towel around his neck walking into the store. During his
       testimony, Ronald Moore identified that person as his brother, Rondell Moore. The
       video shows Rondell Moore inside the store and then walking out of the store back
       to his car. The video later shows a black car entering the lot, a person getting out of
       the passenger side, and the car driving away. The passenger walked out of view of
       the camera toward the gas station store. A few seconds later, the video shows a
       person running through the parking lot and another person chasing him for a few
       feet before turning around and running in the opposite direction.

¶ 13       The parties stipulated that the medical examiner would have testified that
       Rondell Moore was shot three times in the back. There were two exit wounds,
       including one from a bullet that pierced Rondell’s right lung and pulmonary artery.
       The third bullet lodged in his abdominal wall. The medical examiner determined
       the cause of death was multiple gunshot wounds.




                                                -4­
¶ 14       The parties also stipulated that five fired bullets were recovered in the
       investigation. Forensic scientist Tracy Konier would have testified that two of the
       bullets were .380/.38-class caliber and were fired from the same firearm. Two of
       the bullets were 9 millimeter, .38-class caliber. They could not be identified or
       eliminated as having been fired from the same firearm as each other or as the
       .380/.38-class caliber bullets. The fifth bullet was a .22 caliber. The parties
       stipulated that four of the bullets were recovered from the gas station crime scene.
       The other one was recovered from Rondell Moore’s abdominal wall.

¶ 15       The trial court relied heavily on Saffold’s testimony in finding defendant guilty
       of murder, three counts of attempted murder, and aggravated battery. The trial
       judge stated “this case begins and ends with Mr. Saffold” and “[a]mong all the
       witnesses that I heard from, his testimony was unblemished by any of the
       cross-examination.” The trial court observed that Saffold’s testimony was also
       corroborated by the testimony of Ronald Moore and Jones and stated any minor
       inconsistencies in the testimony did not raise a doubt of defendant’s guilt. The court
       concluded that this case “was not a particularly close one.”

¶ 16        At sentencing, defendant offered evidence in mitigation, including that he did
       not have a prior criminal history, he obtained his general education diploma (GED)
       and several educational achievement certificates while in pretrial custody for these
       offenses, and he has a stable and supportive family. In sentencing defendant, the
       trial judge stated he had considered all the statutory sentencing factors and
       remarked, “This is a serious case. I am sorry that the sentencing parameters are
       such that my options are somewhat limited. Although, I do feel you should be
       treated seriously.” The trial judge then sentenced defendant to 45 years’
       imprisonment for first degree murder (20 years for the offense plus 25 years for the
       mandatory firearm enhancement), 26 years for one count of attempted murder (6
       years for the offense plus 20 years for the mandatory firearm enhancement), 31
       years for each of the other two attempted murder convictions (6 years for the
       offense plus 25 years for the mandatory firearm enhancement), and 20 years for
       aggravated battery with a firearm. The attempted murder and aggravated battery
       sentences were ordered to run concurrently with each other, but the attempted
       murder sentences were required to be served consecutively to the murder sentence
       for an aggregate sentence of 76 years’ imprisonment.




                                               -5­
¶ 17        On appeal, defendant contended the evidence was insufficient to prove him
       guilty beyond a reasonable doubt of either first degree murder or attempted first
       degree murder. Defendant also challenged his aggregate 76-year prison sentence
       under both the eighth amendment to the United States Constitution (U.S. Const.,
       amend. VIII) and article I, section 11, of the Illinois Constitution (Ill. Const. 1970,
       art. I, § 11), commonly referred to as the proportionate penalties clause.

¶ 18       The appellate court held the evidence, viewed in the light most favorable to the
       prosecution, was sufficient for a rational trier of fact to find the offenses proven
       beyond a reasonable doubt. 2016 IL App (1st) 141744, ¶¶ 17-29. The appellate
       court also rejected defendant’s claim that his aggregate sentence violated the eighth
       amendment prohibition against cruel and unusual punishment. 2016 IL App (1st)
       141744, ¶¶ 55-56. On the Illinois constitutional claim, however, the appellate court
       held defendant’s aggregate sentence was contrary to the “rehabilitation clause” of
       article I, section 11, providing that penalties must be determined with “ ‘the
       objective of restoring the offender to useful citizenship.’ ” 2016 IL App (1st)
       141744, ¶ 64 (quoting Ill. Const. 1970, art. 1, § 11). The appellate court stated that
       “[w]hile we do not minimize the seriousness of [defendant’s] crimes, we believe
       that it shocks the moral sense of the community to send this young adult to prison
       for the remainder of his life, with no chance to rehabilitate himself into a useful
       member of society.” 2016 IL App (1st) 141744, ¶ 69. Accordingly, the appellate
       court vacated defendant’s sentences. 2016 IL App (1st) 141744, ¶ 76. On the
       State’s concession, the appellate court also directed the clerk to correct the
       mittimus to reflect only one conviction of attempted first degree murder because
       convictions for three separate counts violated the “one act, one crime” rule. 2016 IL
       App (1st) 141744, ¶¶ 74-75. Defendant’s remaining convictions were affirmed, and
       the case was remanded for resentencing. 2016 IL App (1st) 141744, ¶ 76.

¶ 19       Justice Mason dissented from the portion of the decision holding defendant’s
       aggregate 76-year sentence unconstitutional under the proportionate penalties
       clause of the Illinois Constitution. 2016 IL App (1st) 141744, ¶ 79 (Mason, J.,
       concurring in part and dissenting in part). Relying on this court’s decision in People
       v. Thompson, 2015 IL 118151, ¶¶ 37-39, the partial dissent maintained that
       defendant’s as-applied challenge must be rejected because he failed to introduce
       evidence or develop the record necessary to support his claim in the trial court.
       2016 IL App (1st) 141744, ¶ 80 (Mason, J., concurring in part and dissenting in




                                                -6­
       part). The partial dissent would have also rejected defendant’s claim based on the
       Illinois Constitution on the merits. 2016 IL App (1st) 141744, ¶¶ 81-87 (Mason, J.,
       concurring in part and dissenting in part).

¶ 20       We allowed the State’s petition for leave to appeal as a matter of right (Ill. S. Ct.
       R. 317 (eff. July 1, 2006)). We also allowed the Children and Family Justice
       Center, Chicago Lawyers’ Committee for Civil Rights, Civitas ChildLaw Clinic,
       Criminal and Juvenile Justice Project Clinic, Juvenile Justice Initiative of Illinois,
       Juvenile Law Center, Law Office of the Cook County Public Defender, and the
       James B. Moran Center for Youth Advocacy to file a joint amicus curiae brief. Ill.
       S. Ct. R. 345 (eff. Sept. 20, 2010).


¶ 21                                       II. ANALYSIS

¶ 22       On appeal to this court, the State contends that the appellate court erred in
       holding defendant’s aggregate 76-year sentence unconstitutional under the
       proportionate penalties clause of the Illinois Constitution. Defendant cross-appeals,
       renewing his arguments that the State failed to prove him guilty beyond a
       reasonable doubt of Rondell Moore’s murder and that his mandatory 76-year
       sentence violates the eighth amendment prohibition against cruel and unusual
       punishment. We first consider defendant’s cross-appeal claim challenging the
       sufficiency of the evidence. See People v. Gray, 2017 IL 120958, ¶ 31 (sufficiency
       of the evidence claim addressed before constitutional claims).


¶ 23                              A. Sufficiency of the Evidence

¶ 24       Defendant maintains that Rondell Moore was shot in the Chase Bank parking
       lot and no witnesses or physical evidence tied him to that shooting. Defendant
       observes that the bullet recovered from Rondell Moore’s body did not match the
       ones found at the gas station, there was no testimony that defendant had a second
       gun, and other people, including Aaron Jones, were seen in the bank parking lot.
       According to defendant, Rondell Moore could not have jumped a fence and run to
       the Chase Bank parking lot if he had been shot at the gas station. Defendant,
       therefore, concludes that the State failed to prove beyond a reasonable doubt that he
       shot and killed Rondell Moore.




                                                 -7­
¶ 25       The State responds that the evidence was sufficient to convict defendant of first
       degree murder. In fact, as the trial court observed, “[t]his case was not a particularly
       close one.” Three witnesses placed defendant at the gas station, two of them
       positively identified defendant as the shooter, and the gas station surveillance video
       substantially corroborated the testimony of the witnesses. Based on the evidence,
       the trial judge reasonably concluded that defendant shot and killed Rondell Moore.
       The State contends defendant’s arguments are based on pure conjecture and do not
       undermine the strong evidence establishing his guilt. Further, even if defendant’s
       second-shooter theory were true, the State submits that he is accountable for the
       murder because the evidence would establish that defendant, Jones, and others
       made a plan to kill Rondell Moore and worked together to complete that plan.

¶ 26       When a defendant challenges the sufficiency of the evidence, a reviewing court
       must determine whether “ ‘ “after viewing the evidence in the light most favorable
       to the prosecution, any rational trier of fact could have found the essential elements
       of the crime beyond a reasonable doubt.” ’ ” (Emphasis in original.) People v. Ross,
       229 Ill. 2d 255, 272 (2008) (quoting People v. Collins, 106 Ill. 2d 237, 261 (1985),
       quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact remains
       responsible for resolving conflicts in the testimony, weighing the evidence, and
       drawing reasonable inferences from the facts. Gray, 2017 IL 120958, ¶ 35. The
       reviewing court does not retry the defendant and must draw all reasonable
       inferences in favor of the prosecution. In re Q.P., 2015 IL 118569, ¶ 24. A
       conviction will not be reversed on appeal for insufficient evidence unless the
       evidence is so improbable or unsatisfactory that a reasonable doubt remains as to
       the defendant’s guilt. People v. Wright, 2017 IL 119561, ¶ 70.

¶ 27       In this case, the evidence establishes clearly that defendant was the person who
       shot several times at Rondell Moore and Quincy Woulard as they were trying to fix
       Moore’s car and as Moore fled. Aaron Jones testified that he dropped defendant off
       in the gas station parking lot. Ronald Moore and Dexter Saffold both identified
       defendant as the shooter in lineups and in court. This court has consistently held
       that the testimony of a single witness is sufficient to sustain a conviction if the
       testimony is positive and credible, even if it is contradicted by the defendant. Gray,
       2017 IL 120958, ¶ 36; Wright, 2017 IL 119561, ¶ 76-77. The identification
       testimony of both Ronald Moore and Saffold was positive and credible. The trial
       court credited Saffold’s testimony in particular, stating “[a]mong all the witnesses




                                                -8­
       that I heard from, his testimony was unblemished by any of the cross-examination.”
       The testimony of Jones, Moore, and Saffold was also corroborated by the
       surveillance video of the gas station parking lot showing a person getting out of the
       passenger side of a black car and walking toward the gas station. The video later
       showed a person running through the parking lot with another person chasing him
       for a few feet and then turning around and running in the opposite direction. The
       testimony of the witnesses was consistent with the events shown in the surveillance
       video.

¶ 28        Defendant does not seriously dispute this part of the evidence, conceding in his
       brief that the evidence “arguably showed that [defendant] was the gas station
       shooter.” Defendant instead claims the evidence does not establish that Rondell
       Moore was actually shot at the gas station but that he was shot and killed by
       someone else after running to the Chase Bank parking lot. In support of his claim,
       defendant argues that it defies common sense to believe Rondell Moore could have
       jumped over a fence that was several feet high and run to the Chase Bank parking
       lot if he had been shot three times at the gas station. Defendant also observes that
       the State did not present any evidence of Rondell Moore’s blood between the gas
       station and the bank parking lot.

¶ 29       Conversely, no evidence suggests that Rondell Moore could not have jumped
       the fence and run to the Chase Bank parking lot after being shot. We cannot
       speculate about Moore’s physical abilities while fleeing for his life. Additionally, it
       is not clear exactly when the bullets struck Rondell Moore given Ronald Moore’s
       testimony that defendant continued to shoot as Rondell fled. One or more of the
       bullets may have hit Rondell Moore as he was jumping the fence or as he ran
       toward Chase Bank.

¶ 30       Further, although no evidence of a blood trail between the gas station and Chase
       Bank was offered, the parties stipulated that in processing the scene forensic
       investigators collected “a light blue bath towel with apparent blood.” A photograph
       introduced into evidence showed what appears to be a light blue towel lying in the
       gas station parking lot near the fence. The surveillance video from the gas station
       showed Rondell Moore walking into and out of the store with a blue towel around
       his neck. The trial court could have inferred from this evidence that the towel found
       near the fence in the gas station parking lot was the one around Rondell Moore’s




                                                -9­
       neck and the blood on the towel was evidence that he was shot in the gas station
       parking lot.

¶ 31       Additionally, while the bullets recovered in the investigation were not all the
       same caliber, the evidence does not exclude defendant from firing more than one
       gun. As the appellate court observed, “there was nothing preventing [defendant]
       from carrying two firearms during the crime.” We note that Ronald Moore testified
       defendant was firing a chrome handgun and Saffold testified he fired a
       dark-colored handgun and that he tried to put it in his pocket as he ran away. That
       testimony suggests defendant may have fired more than one handgun.

¶ 32       Most importantly, while defendant posits that Rondell Moore was shot and
       killed in the Chase Bank parking lot, no testimony or physical evidence indicates
       that any shots were fired there or anywhere other than the gas station parking lot.
       Ronald Moore testified that after chasing defendant for 5 to 10 feet he ran directly
       to the Chase Bank parking lot one-half block away from the gas station. He saw the
       black Lexus drive through that parking lot but did not testify that he heard any
       gunshots or saw anyone fire a gun there. The only evidence of gunshots being fired
       was by defendant in the gas station parking lot. All of the bullets recovered in the
       investigation were from the gas station parking lot and from Rondell Moore’s body.
       No evidence was presented that bullets or casings were found in the Chase Bank
       parking lot.

¶ 33        In contending Rondell Moore was shot and killed in the Chase Bank parking
       lot, defendant essentially asks this court to retry defendant on appeal. Of course,
       that is not this court’s role. Our duty is to determine whether “ ‘ “after viewing the
       evidence in the light most favorable to the prosecution, any rational trier of fact
       could have found the essential elements of the crime beyond a reasonable
       doubt.” ’ ” (Emphasis in original.) Ross, 229 Ill. 2d at 272 (quoting Collins, 106 Ill.
       2d at 261, quoting Jackson, 443 U.S. at 319). In this case, a rational trier of fact
       could have concluded from the evidence that the shots fired by defendant struck
       Rondell Moore and caused his death from multiple gunshot wounds. We therefore
       agree with the appellate court that the evidence is sufficient to prove defendant
       guilty of Rondell Moore’s murder beyond a reasonable doubt.




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¶ 34              B. Proportionate Penalties Clause of the Illinois Constitution

¶ 35       The State contends that the appellate court made several errors in holding
       defendant’s aggregate 76-year sentence unconstitutional under article I, section 11,
       of the Illinois Constitution, commonly referred to as the proportionate penalties
       clause. The State argues defendant forfeited his as-applied challenge by failing to
       raise it in the trial court. The State also contends the appellate court erred in
       considering the constitutional challenge because defendant failed to develop the
       factual and legal bases for his claim in the trial court. On the merits, the State
       maintains that defendant’s mandatory minimum aggregate prison term does not
       violate the proportionate penalties clause because defendant has not demonstrated
       that, as applied to his circumstances, the sentence is so wholly disproportionate to
       his offenses that it shocks the moral sense of the community.

¶ 36       Defendant responds that as applied to him, the statutory sentencing scheme,
       resulting in a mandatory de facto life sentence, “violates the rehabilitation clause of
       [article I, section 11,] of the Illinois Constitution.” Defendant contends that it
       shocks the moral sense of the community to impose a mandatory de facto life
       sentence given the facts of this case, including his youth and the other mitigating
       factors present. Defendant further argues that the State has forfeited its forfeiture
       argument by failing to raise it in the appellate court or in its petition for leave to
       appeal and that the record is sufficient to consider his constitutional challenge.

¶ 37       Defendant’s claim is an as-applied challenge. Defendant contends that, as
       applied to his specific circumstances, the sentencing statutes resulting in a
       mandatory aggregate sentence of 76 years’ imprisonment violate the Illinois
       Constitution. In particular, defendant relies on the United States Supreme Court’s
       decisions in Roper v. Simmons, 543 U.S. 551, 578-79 (2005) (the eighth and
       fourteenth amendments prohibit capital sentences for juveniles who commit
       murder), Graham v. Florida, 560 U.S. 48, 82 (2010) (the eighth amendment
       prohibits mandatory life sentences for juveniles who commit nonhomicide
       offenses), and Miller v. Alabama, 567 U.S. 460, 489 (2012) (the eighth amendment
       prohibits mandatory life sentences for juveniles who commit murder), and claims
       the reasoning from those cases should be extended to his specific circumstances as
       an 18-year-old young adult.




                                               - 11 ­
¶ 38        The distinction between facial and as-applied constitutional challenges is
       critical. People ex rel. Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 11. A
       party raising a facial challenge must establish that the statute is unconstitutional
       under any possible set of facts, while an as-applied challenge requires a showing
       that the statute is unconstitutional as it applies to the specific facts and
       circumstances of the challenging party. Hartrich, 2018 IL 121636, ¶ 12; People v.
       Rizzo, 2016 IL 118599, ¶ 24; Thompson, 2015 IL 118151, ¶ 36.

¶ 39       All as-applied constitutional challenges are, by definition, dependent on the
       specific facts and circumstances of the person raising the challenge. “ ‘Therefore, it
       is paramount that the record be sufficiently developed in terms of those facts and
       circumstances for purposes of appellate review.’ ” Hartrich, 2018 IL 121636, ¶ 31
       (quoting Thompson, 2015 IL 118151, ¶ 37). We have reiterated that:

          “ ‘ “A court is not capable of making an ‘as applied’ determination of
          unconstitutionality when there has been no evidentiary hearing and no findings
          of fact. [Citation.] Without an evidentiary record, any finding that a statute is
          unconstitutional ‘as applied’ is premature.” ’ ” Rizzo, 2016 IL 118599, ¶ 26
          (quoting People v. Mosley, 2015 IL 115872, ¶ 47, quoting In re Parentage of
          John M., 212 Ill. 2d 253, 268 (2004)).

¶ 40        Here, defendant did not raise his as-applied constitutional challenge in the trial
       court. Thus, an evidentiary hearing was not held on his constitutional claim, and the
       trial court did not make any findings of fact on defendant’s specific circumstances.
       The appellate court held defendant’s sentence violated the Illinois Constitution
       without a developed evidentiary record on the as-applied constitutional challenge.

¶ 41       Defendant, nonetheless, contends our reasoning in Thompson does not apply
       here because Thompson involved a collateral proceeding and this case is on direct
       review. This court, however, has applied the concepts from Thompson to cases on
       direct review. See Hartrich, 2018 IL 121636, ¶¶ 8-9; People v. Minnis, 2016 IL
       119563, ¶ 1; Rizzo, 2016 IL 118599, ¶ 1; Mosley, 2015 IL 115872, ¶ 1. The critical
       point is not whether the claim is raised on collateral review or direct review, but
       whether the record has been developed sufficiently to address the defendant’s
       constitutional claim. As we have emphasized, a reviewing court is not capable of
       making an as-applied finding of unconstitutionality in the “factual vacuum” created




                                               - 12 ­
       by the absence of an evidentiary hearing and findings of fact by the trial court.
       Minnis, 2016 IL 119563, ¶ 19; Rizzo, 2016 IL 118599, ¶ 26.

¶ 42        Defendant also contends the record contains all the facts necessary to address
       his claim under the Illinois Constitution. Defendant observes that in People v.
       Holman, 2017 IL 120655, this court addressed the defendant’s claim, raised for the
       first time on appeal, that his sentencing hearing did not comport with Miller v.
       Alabama, because all of the facts and circumstances to decide that claim were
       contained in the record. Defendant maintains that the record here includes
       sufficient information about his personal history to allow the court to consider
       whether the evolving science on juvenile maturity and brain development relied
       upon in Miller applies to him.

¶ 43       In Holman, the defendant argued for the first time on appeal from the denial of
       his pro se petition for leave to file a successive postconviction petition that his life
       sentence was unconstitutional under Supreme Court case law, particularly Miller.
       Holman, 2017 IL 120655, ¶ 20. This court acknowledged Thompson held that a
       defendant must present an as-applied constitutional challenge to the trial court to
       develop the record sufficiently. Holman, 2017 IL 120655, ¶ 32. The specific claim
       raised by the defendant in Holman, however, fell under a “very narrow exception”
       applicable when the record had been developed sufficiently for appellate review of
       an as-applied Miller claim. Holman, 2017 IL 120655, ¶ 32. We held that the
       defendant’s Miller claim “[did] not require factual development.” Holman, 2017 IL
       120655, ¶ 32. All of the facts and circumstances necessary to decide the
       defendant’s Miller claim were already in the record. Holman, 2017 IL 120655,
       ¶ 32. Accordingly, we chose to address the merits of the defendant’s claim in the
       interest of judicial economy. Holman, 2017 IL 120655, ¶ 32.

¶ 44       The “very narrow exception” recognized in Holman does not apply here,
       however. In Holman, the defendant was sentenced to life without parole for a
       murder he committed at age 17, and he argued that he was entitled to a new
       sentencing hearing under Miller. Holman, 2017 IL 120655, ¶ 1. As noted
       previously, Miller held that mandatory life sentences for juveniles who commit
       murder are prohibited under the eighth amendment prohibition against cruel and
       unusual punishment. Holman, 2017 IL 120655, ¶ 33. As a factual matter, the
       defendant in Holman fell squarely under Miller because he was a juvenile when his




                                                - 13 ­
       crime was committed. The critical determinations were purely legal issues:
       deciding whether Miller also applied to discretionary life sentences for juveniles
       and defining the Miller factors to be considered in sentencing. Holman, 2017 IL
       120655, ¶¶ 33-46. The only other issue was determining from the “cold record”
       whether the trial court adequately considered the Miller factors at the original
       sentencing hearing. Holman, 2017 IL 120655, ¶¶ 47-50. Thus, the evidentiary
       record was sufficient to address the issues raised in Holman.

¶ 45       In contrast, defendant in this case was 18 years old at the time of his offenses.
       Because defendant was an adult, Miller does not apply directly to his
       circumstances. The record must be developed sufficiently to address defendant’s
       claim that Miller applies to his particular circumstances. As we stated in Holman,

              “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. [Citation.] 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.’ [Citation.] We stated the trial court was the
          most appropriate tribunal for such factual development.” Holman, 2017 IL
          120655, ¶ 30.

¶ 46       Defendant contends that the record includes sufficient information about his
       personal history to determine whether the evolving science on juvenile maturity
       and brain development applies to him. The record, however, includes only basic
       information about defendant, primarily from the presentence investigation report.
       An evidentiary hearing was not held, and the trial court did not make any findings
       on the critical facts needed to determine whether Miller applies to defendant as an
       adult. As in Thompson, the record here does not contain evidence about how the
       evolving science on juvenile maturity and brain development that helped form the
       basis for the Miller decision applies to defendant’s specific facts and
       circumstances. Accordingly, defendant’s as-applied challenge is premature. See
       Rizzo, 2016 IL 118599, ¶ 26.

¶ 47       Finally, defendant asserts that if this court determines further development of
       the record is necessary to address his constitutional claim we should remand to the



                                              - 14 ­
       trial court for an evidentiary hearing while retaining jurisdiction. The State
       responds that we should reject defendant’s request because he had adequate
       opportunity to develop his claim in the trial court. The State notes that defendant
       was sentenced two years after the Supreme Court decided Miller and that the
       principle requiring a litigant to develop the evidentiary record for an as-applied
       constitutional challenge is well established.

¶ 48       In addressing a similar claim in Thompson, we observed that the defendant was
       not necessarily foreclosed from raising his as-applied challenge in another
       proceeding. We noted that the Post-Conviction Hearing Act (725 ILCS 5/122-1
       et seq. (West 2016)) is designed to resolve constitutional issues and the defendant’s
       claim could also potentially be raised in a petition seeking relief from a final
       judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
       (West 2016)). Thompson, 2015 IL 118151, ¶ 44. The Post-Conviction Hearing Act
       specifically allows for raising “ ‘constitutional questions which, by their nature,
       depend[ ] upon facts not found in the record.’ ” People v. Cherry, 2016 IL 118728,
       ¶ 33 (quoting People v. Thomas, 38 Ill. 2d 321, 324 (1967)). In Cherry, this court
       observed that claims of ineffective assistance of counsel are commonly raised in
       postconviction proceedings because they often require presentation of evidence not
       contained in the record. Cherry, 2016 IL 118728, ¶ 33. We believe defendant’s
       claim is also more appropriately raised in another proceeding. Accordingly, we
       decline to remand this matter for an evidentiary hearing.


¶ 49                                 C. Eighth Amendment

¶ 50       Finally, on cross-appeal defendant renews his claim based on the eighth
       amendment. Defendant contends that given “the emerging scientific consensus on
       the ongoing neurological development of young adults,” sentencing individuals
       under the age of 21 to mandatory life imprisonment violates the eighth amendment
       prohibition against cruel and unusual punishment. Defendant asserts that evidence
       shows the brains of young adults continue to develop into their mid-twenties, and
       he urges this court to “not wait for the United States Supreme Court to extend the
       bright line rule of Miller to young adults ages 18 to 21.”

¶ 51       The State responds that, even if the qualities of youth do not necessarily
       disappear when a person reaches 18 years of age, both society and the constitution



                                              - 15 ­
       draw the line distinguishing children from adults at age 18. The State maintains that
       the scientific research on this subject “is in its infancy” and it is impossible to
       identify a precise age when the characteristics of youth cease in either an individual
       or the general population. Further, the constitutional line for sentencing is based
       primarily on the traditional recognition of the special status of juveniles rather than
       on emerging scientific research. The State, therefore, concludes that the legislature
       is within its constitutional authority to define adulthood at the age of 18 for the
       purpose of sentencing.

¶ 52       As noted previously, facial and as-applied constitutional challenges are not
       interchangeable. An as-applied challenge requires a showing that the statute is
       unconstitutional as it applies to the challenging party’s specific circumstances.
       Thompson, 2015 IL 118151, ¶ 36. In contrast, a facial challenge requires the
       challenging party to establish that the statute is unconstitutional under any possible
       set of facts. Thompson, 2015 IL 118151, ¶ 36.

¶ 53       Defendant’s claim is a facial challenge. He does not rely on his particular
       circumstances in challenging his sentence under the eighth amendment but, rather,
       contends that the eighth amendment protection for juveniles recognized in Miller
       should be extended to all young adults under the age of 21. At oral argument,
       defendant confirmed that he sought a categorical ruling extending Miller to all
       young adults under age 21. To the extent that defendant may have intended to raise
       an as-applied challenge under the eighth amendment, that claim would fail for the
       same reason as his challenge under the Illinois Constitution failed, because no
       evidentiary hearing was held and no findings of fact were entered on how Miller
       applies to him as a young adult.

¶ 54       Here, the appellate court rejected defendant’s eighth amendment constitutional
       challenge. 2016 IL App (1st) 141744, ¶ 56. The appellate court observed that in
       Roper, Graham, and Miller, the Supreme Court “drew a line between juveniles and
       adults at the age of 18 years.” 2016 IL App (1st) 141744, ¶ 56. The appellate court
       held defendant’s eighth amendment claim fails because he “falls on the adult side
       of that line.” 2016 IL App (1st) 141744, ¶ 56. We agree.

¶ 55      In Roper and Graham, the Supreme Court established that “children are
       constitutionally different from adults for purposes of sentencing” in several
       important ways. Miller, 567 U.S. at 471. First, children are less mature and have an



                                               - 16 ­
       underdeveloped sense of responsibility, leading to recklessness, impulsive
       behavior, and heedless risk-taking. Miller, 567 U.S. at 471 (citing Roper, 543 U.S.
       at 569). Second, children are more vulnerable to negative influences and pressures,
       including from their family and peers. Miller, 567 U.S. at 471 (citing Roper, 543
       U.S. at 569). And third, a child’s character is less fixed, making his or her actions
       less likely to be indicative of irretrievable depravity. Miller, 567 U.S. at 471 (citing
       Roper, 543 U.S. at 570). Those differences between adults and juveniles diminish a
       juvenile’s moral culpability and result in increased prospects for reform. Miller,
       567 U.S. at 471-73. The Miller Court, therefore, held that a sentencing scheme
       mandating life in prison without the possibility of parole for juvenile offenders
       violates the eighth amendment prohibition on cruel and unusual punishment.
       Miller, 567 U.S. at 479.

¶ 56       In Roper, Graham, and Miller, the Supreme Court “unmistakably instructed
       that youth matters in sentencing.” Holman, 2017 IL 120655, ¶ 33. The Miller 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.’ ”
       Holman, 2017 IL 120655, ¶ 35 (quoting Miller, 567 U.S. at 474). The Supreme
       Court has never extended its reasoning to young adults age 18 or over. Rather, the
       Supreme Court defined juveniles as individuals under the age of 18. Specifically, in
       holding that the eighth amendment prohibits imposing the death penalty on juvenile
       offenders, the Roper Court recognized that:

              “Drawing the line at 18 years of age is subject, of course, to the objections
          always raised against categorical rules. The qualities that distinguish juveniles
          from adults do not disappear when an individual turns 18. By the same token,
          some under 18 have already attained a level of maturity some adults will never
          reach. For the reasons we have discussed, however, a line must be drawn. ***
          The age of 18 is the point where society draws the line for many purposes
          between childhood and adulthood. It is, we conclude, the age at which the line
          for death eligibility ought to rest.” Roper, 543 U.S. at 574.

¶ 57       In Graham, the Court again noted the “fundamental differences between
       juvenile and adult minds” and reiterated that juveniles are “more capable of change
       than are adults.” Graham, 560 U.S. at 68. The Court held:




                                                - 17 ­
          “[A] clear line is necessary to prevent the possibility that life without parole
          sentences will be imposed on juvenile nonhomicide offenders who are not
          sufficiently culpable to merit that punishment. Because ‘[t]he age of 18 is the
          point where society draws the line for many purposes between childhood and
          adulthood,’ those who were below that age when the offense was committed
          may not be sentenced to life without parole for a nonhomicide crime.” Graham,
          560 U.S. at 74-75 (citing Roper, 543 U.S. at 574).

¶ 58       In Miller, the Court again confirmed that the age of 18 is the legal line
       separating adults from juveniles, holding that “mandatory life without parole for
       those under the age of 18 at the time of their crimes violates the Eighth
       Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Miller, 567 U.S.
       at 465. Thus, the Supreme Court has clearly and consistently drawn the line
       between juveniles and adults for the purpose of sentencing at the age of 18.

¶ 59       Defendant argues that emerging scientific research on the neurological
       development of young adults supports extending Miller to adults under the age of
       21. Defendant acknowledges that “this brain research is new.” The State contends
       the scientific research is inconclusive, citing various articles. The State asserts that
       “the neuroscientific and legal communities continue to debate the limitations of
       neuroimaging and its implications for criminal justice and other areas of the law.”
       Again, we note that an evidentiary hearing was not held and the trial court did not
       make any findings of fact on this subject.

¶ 60       In any case, the line drawn by the Supreme Court at age 18 was not based
       primarily on scientific research. The Supreme Court acknowledged its line at age
       18 was an imprecise “categorical rule[ ]” but emphasized that “a line must be
       drawn.” Roper, 543 U.S. at 574. The Court drew the line at age 18 because that “is
       the point where society draws the line for many purposes between childhood and
       adulthood.” Roper, 543 U.S. at 574. New research findings do not necessarily alter
       that traditional line between adults and juveniles.

¶ 61       Finally, we note that claims for extending Miller to offenders 18 years of age or
       older have been repeatedly rejected. See, e.g., United States v. Williston, 862 F.3d
       1023, 1039-40 (10th Cir. 2017) (declining to expand the holding of Miller to
       offenders who are “ ‘just over age 18’ ” at the time of their offenses); United States
       v. Marshall, 736 F.3d 492, 500 (6th Cir. 2013) (for eighth amendment purposes, an



                                                - 18 ­
       individual’s eighteenth birthday marks the bright line separating juveniles from
       adults). People v. Argeta, 149 Cal. Rptr. 243, 245-46 (Ct. App. 2012) (rejecting
       argument to extend Miller to an offender who was 18 years, 5 months old at the
       time of his offense). We agree with those decisions and our appellate court that, for
       sentencing purposes, the age of 18 marks the present line between juveniles and
       adults. As an 18-year-old, defendant falls on the adult side of that line.
       Accordingly, defendant’s facial challenge to his aggregate sentence under the
       eighth amendment necessarily fails.


¶ 62                                    III. CONCLUSION

¶ 63       For the above reasons, we reverse the appellate court’s judgment vacating
       defendant’s sentences and remanding for resentencing. The appellate court’s
       judgment is otherwise affirmed.


¶ 64      Appellate court judgment affirmed in part and reversed in part.


¶ 65      JUSTICE BURKE, specially concurring:

¶ 66       I agree with the majority’s holding that the evidence in this case is sufficient to
       support defendant’s convictions. I also agree with the majority’s holding that
       sentencing defendant to an aggregate term of 76 years’ imprisonment does not
       violate the eighth amendment. However, I disagree with the majority’s decision not
       to address defendant’s argument that sentencing him to a 76-year term violates
       article I, section 11, of the Illinois Constitution of 1970.

¶ 67        Article I, section 11, of the Illinois Constitution of 1970 provides, in relevant
       part, 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.”
       Ill. Const. 1970, art. I, § 11. The defendant’s claim under this provision is described
       by the majority as being focused on the particular circumstances of his case. The
       majority notes that defendant has emphasized his age at the time of the offenses, 18
       years and 3 months, and has argued that, because of mitigating factors in his
       personal history and potential for rehabilitation, he should receive a sentence that is




                                               - 19 ­
       less than the aggregate, 76-year term he was given. Supra ¶ 37. From this, the
       majority concludes that defendant’s constitutional claim is an “as-applied”
       challenge to his sentence. Supra ¶ 37. The majority then observes that an as-applied
       challenge is “dependent on the specific facts and circumstances of the person
       raising the challenge” (supra ¶ 39) and that, in this case, the trial court did not hold
       an evidentiary hearing on defendant’s constitutional claim and “did not make any
       findings of fact on defendant’s specific circumstances” (supra ¶ 40). Accordingly,
       the majority holds that defendant’s constitutional claim is premature and, therefore,
       the appellate court erred in reaching the merits of the claim. Supra ¶¶ 41-46. The
       majority reverses the appellate court’s judgment vacating defendant’s sentence but
       ultimately expresses no opinion on the merits of defendant’s constitutional claim.
       Instead, the majority suggests that the claim would more properly be brought in a
       postconviction petition. Supra ¶ 48. I disagree.

¶ 68       The relevant language of article I, section 11, which is generally referred to as
       the proportionate penalties clause, governs the actions of both the judiciary and the
       legislature. People v. Clemons, 2012 IL 107821, ¶ 29. Thus, a trial court may not
       impose a sentence that, although within a sentencing range set by the legislature, is
       nevertheless unconstitutionally disproportionate for an individual defendant
       (People v. Taylor, 102 Ill. 2d 201, 206 (1984)), nor may the legislature enact a
       mandatory minimum sentence that is unconstitutionally disproportionate to a
       statutory offense (Clemons, 2012 IL 107821, ¶ 30).

¶ 69       The nature of a defendant’s proportionate penalties clause claim will vary
       depending on whether the challenge is made to a sentence imposed by a trial court
       that is toward the maximum end of a sentencing range or whether the challenge is
       made to a minimum sentence mandated by the legislature. A sentence at the
       maximum end of a sentencing range is imposed after the trial court has exercised its
       discretion and concluded that the lower sentencing options provided by the
       legislature are inappropriate. Thus, a constitutional challenge to such a sentence is
       necessarily directed at the actions of the trial court, not the legislature. The claim
       will allege that, at sentencing, the trial court failed to properly weigh and apply the
       unique mitigating circumstances of the defendant’s case, including the defendant’s
       potential for rehabilitation, and that this failure resulted in an unconstitutionally
       disproportionate sentence. Because such a challenge alleges that the constitutional
       violation occurred at the time the trial court applied the sentencing statute, a




                                                - 20 ­
       proportionate penalties claim brought against a sentence that is toward the
       maximum end of a sentencing range is typically labeled an “as-applied” challenge.
       If the defendant’s claim is successful on appeal, the remedy lies in remanding the
       matter to the trial court with instructions to reapply the sentencing statute and
       impose a lesser sentence that is within the permissible sentencing range.

¶ 70       The analysis differs when a defendant challenges a mandatory minimum
       sentence. A trial court exercises no discretion when imposing a mandatory
       minimum sentence. Thus, a constitutional claim brought against a mandatory
       minimum sentence will necessarily allege that the constitutional violation was
       committed, not by the trial court, but by the legislature when it enacted the
       legislation that mandated the sentence. Because a constitutional violation
       committed by the legislature is inherent “in the terms of the statute itself” (One
       1998 GMC, 2011 IL 110236, ¶ 86 (Karmeier, J., specially concurring)), a
       constitutional claim brought against a mandatory minimum sentence is typically
       labelled a “facial” challenge. See Nicholas Q. Rosenkranz, The Subjects of the
       Constitution, 62 Stan. L. Rev. 1209, 1236 (2010) (“It makes no sense to speak of
       ‘as-applied’ challenges to legislative actions, because the challenged action is
       complete before the application begins.”). If the defendant’s challenge to a
       mandatory minimum sentence is successful, the remedy lies with the legislature,
       which must amend the sentencing statute to remove the constitutional violation.

¶ 71       In this case, defendant’s proportionate penalties claim is a facial challenge. As
       defendant himself observes, the trial court exercised no discretion in imposing an
       aggregate, 76-year term of imprisonment. The 20-year term defendant received for
       the murder of Rondell Moore and the 6-year term defendant received for the
       attempted murder of Quincy Woolard were both statutory minimums mandated by
       the legislature. See 730 ILCS 5/5-4.5-20(a) (West 2012); 720 ILCS 5/8-4(c)(1)
       (West 2012); 730 ILCS 5/5-4.5-25(a) (West 2012). The 25-year firearm
       enhancements defendant received for each offense and the imposition of
       consecutive sentencing were also mandated by the legislature. See 730 ILCS
       5/5-8-1(a)(1)(d)(iii) (West 2012); 720 ILCS 5/8-4(c)(1)(D); 730 ILCS
       5/5-8-4(d)(1) (West 2012). Thus, if there was a constitutional violation in this case,
       it was necessarily committed by the legislature, not the trial court. And if the
       violation was committed by the legislature, then it had to have been committed at




                                               - 21 ­
       the time the sentencing statutes were enacted, not the time they were applied.
       Defendant’s claim cannot be an as-applied challenge.

¶ 72       Moreover, defendant’s constitutional claim is not, in fact, reliant on the specific
       circumstances of his particular case. Defendant’s argument is focused on the lack
       of discretion afforded the trial court by the legislature. Defendant observes that it
       was the “confluence of the operative sentencing statutes *** that combined to
       produce [defendant’s] mandatory 76-year minimum sentence of de facto life
       imprisonment.” According to defendant, “this mandatory sentencing scheme is
       shocking in light of evolving standards of decency.” Citing Roper v. Simmons, 543
       U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama,
       567 U.S. 460 (2012), defendant maintains there is “a clear trend in the
       jurisprudence of this country, grounded in ever-accumulating scientific evidence,
       towards more leniency and sentencing discretion in cases involving young
       offenders.” Defendant acknowledges that the holdings of Roper, Graham, and
       Miller were limited to offenders younger than 18 but contends there is now a
       “wealth of further research in neurobiology and developmental psychology”
       showing that, even into their early twenties, “young offenders are more similar to
       adolescents than fully mature adults.” Given this, defendant argues that it “shocks
       the moral sense of the community” for the legislature to prohibit a trial court from
       exercising sentencing discretion before imposing a natural or de facto life term for
       any offender, including himself, who is younger than 21. In short, defendant’s
       contention is that the legislature violated the proportionate penalties clause when it
       enacted a sentencing scheme that mandates a natural or de facto life sentence for
       offenders under the age of 21.

¶ 73       Defendant’s constitutional claim is in no way limited to, or dependent on, the
       facts of his particular case. If defendant’s argument is correct, this would mean that
       sentencing any offender younger than 21 to a mandatory life sentence for any crime
       would be unconstitutional. Defendant’s constitutional claim is directed toward the
       mandatory sentencing scheme itself. It is, therefore, a facial challenge.

¶ 74       To be sure, defendant does describe his personal circumstances and history in
       his brief and does maintain that he possesses an individual capacity “for reform and
       rehabilitation.” But none of this personal information is relevant to defendant’s
       constitutional claim. Under the present statutory scheme, the trial court does not




                                               - 22 ­
       have the discretion to consider any of the unique circumstances of defendant’s case.
       Only if the trial court was granted the discretion to impose a lesser sentence and the
       cause was then remanded for resentencing would defendant’s personal history
       become relevant. And the only way that the trial court could possess such discretion
       would be if this court were to first agree with defendant’s claim that the legislature
       violated the constitution when it enacted a legislative scheme that results in a
       mandatory de facto life sentence for all offenders under the age of 21. Again, this is
       a facial challenge to the constitutionality of the legislature’s actions.

¶ 75       In light of the foregoing, it is clear that the majority, in holding that defendant’s
       constitutional claim is an as-applied challenge, has improperly conflated two
       completely different questions: (1) whether the legislature may enact a sentencing
       scheme that mandates a natural or de facto life sentence for offenders under 21 and,
       (2) if they may not, whether defendant is entitled to the exercise of the trial court’s
       sentencing discretion in this case to receive a sentence of less than 76 years’
       imprisonment. The majority’s confusion regarding these two distinct questions
       leads it to conclude that, because the trial court did not make “findings of fact on
       defendant’s specific circumstances” (supra ¶ 40) and because we do not know
       whether defendant personally deserves the exercise of sentencing discretion, we
       cannot decide his facial challenge to the legislature’s mandatory sentencing
       scheme. This is clearly incorrect.

¶ 76       Finally, the majority compounds its error, and contradicts its own analysis,
       when it addresses defendant’s eighth amendment claim. Although the governing
       provisions are different, the nature of defendant’s claims under both the Illinois and
       United States Constitutions are the same. Defendant cites the same authorities for
       both claims, Roper, Graham, and Miller, and makes the same assertion under both,
       that the legislature may not enact a sentencing scheme that results in a mandatory
       natural or de facto life sentence for offenders under the age of 21. Yet the majority
       treats the two claims as if they were completely different, concluding that the first
       claim is an as-applied challenge and the second a facial one. Supra ¶¶ 37, 53. The
       majority offers no explanation for this discrepancy. Nor does the majority offer any
       explanation as to why the lack of an adequate record regarding defendant’s
       personal circumstances makes it impossible to address defendant’s proportionate
       penalties clause claim but presents no bar whatsoever to addressing his eighth
       amendment claim.




                                                - 23 ­
¶ 77       Because defendant’s constitutional challenge to his legislatively mandated term
       of imprisonment is a facial one, there is no per se reason why we cannot address it.
       On the merits, I would reject defendant’s proportionate penalties claim for the same
       reasons the majority rejects defendant’s eighth amendment claim. As the majority
       notes, although scientific studies regarding brain development may help in
       determining where the line between juveniles and adults should be drawn for
       purposes of criminal sentencing, the issue is not one that can be resolved with
       scientific certainty based “primarily on scientific research.” Supra ¶ 60. Rather,
       determining the age at which human beings should be held fully responsible for
       their criminal conduct is ultimately a matter of social policy that rests on the
       community’s moral sense. Traditionally, 18 is the age at which the line has been
       drawn between juveniles and adults. Supra ¶ 56 (age 18 “ ‘is the point where
       society draws the line for many purposes between childhood and adulthood’ ”
       (quoting Roper, 543 U.S. at 574)). I cannot say that, for purposes of criminal
       sentencing, the Illinois Constitution prohibits the General Assembly from
       maintaining this traditional line. And since defendant does not otherwise argue that
       sentencing an adult offender to a mandatory 76-year term of imprisonment for the
       offenses at issue here violates the proportionate penalties clause, defendant’s facial
       challenge fails. For these reasons, I would reverse the judgment of the appellate
       court vacating defendant’s sentences and remanding for resentencing.


¶ 78      JUSTICE NEVILLE took no part in the consideration or decision of this case.




                                               - 24 ­
