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                               Appellate Court                          Date: 2018.10.23
                                                                        08:14:40 -05'00'




                    People v. Coty, 2018 IL App (1st) 162383



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



District & No.    First District, Third Division
                  Docket No. 1-16-2383


Filed             August 8, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 04-CR-30062; the
Review            Hon. Nicholas Ford, Judge, presiding.



Judgment          Sentence vacated.
                  Reversed and remanded with instructions.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Daniel T. Mallon, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Lisa Madigan, Attorney General, and Kimberly M. Foxx, State’s
                  Attorney, both of Chicago (Gopi Kashyap, Assistant Attorney
                  General, and Alan J. Spellberg and Mary L. Boland, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             JUSTICE FITZGERALD SMITH delivered the judgment of the court,
                  with opinion.
                  Justices Howse and Lavin concurred in the judgment and opinion.
                                                OPINION

¶1        After a jury trial, the defendant, William Coty, who is intellectually disabled, 1 was
     convicted, inter alia, of predatory criminal sexual assault of a minor. Because the defendant
     had a prior conviction for aggravated criminal sexual assault, pursuant to section 12-14.1(b)(2)
     of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14.1(b)(2) (West 2004)),2 the
     trial court had no discretion but to sentence him to mandatory natural life in prison without the
     possibility of parole. After his conviction and sentence were affirmed on appeal (see People v.
     Coty, 388 Ill. App. 3d 1136 (2009) (table) (unpublished order under to Supreme Court Rule 23)
     (hereinafter Coty I)), the defendant filed a petition for relief from judgment pursuant to section
     2-1401 of the Code of Civil Procedure (Civil Procedure Code) (735 ILCS 5/2-1401 (West
     2004)), alleging, inter alia, that his mandatory natural life sentence was (1) facially
     unconstitutional under the eighth amendment of the United States Constitution (U.S. Const.,
     amend. VIII) and (2) unconstitutional as applied to him under the Illinois proportionate
     penalties clause (Ill. Const. 1970, art. I, § 11) due to his intellectual disability. After the trial
     court sua sponte dismissed the defendant’s petition, the defendant appealed to this court.
¶2        On appeal, we affirmed in part and reversed in part, holding that, while the defendant had
     failed to establish that his mandatory natural life sentence was facially unconstitutional under
     the eighth amendment, that same sentence was unconstitutional as applied to him under the
     proportionate penalties clause. See People v. Coty, 2014 IL App (1st) 121799-U, ¶¶ 60-75
     (hereinafter Coty II). We therefore vacated the defendant’s sentence and remanded the cause to
     the trial court for resentencing. Id. ¶ 77.
¶3        On remand, the defendant, who was then 52 years old, was resentenced to 50 years’
     imprisonment. The defendant now appeals from that sentence contending that the trial court
     abused its discretion when it imposed an extended term sentence that was the equivalent of a
     natural life sentence. In the alternative, the defendant contends that his 50-year de facto life
     sentence is unconstitutional under both the federal and state constitutions, as applied to him, an
     intellectually disabled person. For the reasons that follow, we vacate the defendant’s sentence
     and reverse and remand for a new sentencing hearing, with instructions.

¶4                                       I. BACKGROUND
¶5       Because we have already articulated the facts of this case in our prior two orders, we set
     forth only the facts and procedural history that are relevant to the resolution of this appeal.

¶6                                       A. Fitness Hearing
¶7       The defendant was arrested and charged on November 21, 2004. Prior to trial, the court
     held a fitness hearing to determine whether the defendant was fit to stand trial. At that hearing,
     the State called Dr. Debra Ferguson, a forensic clinical services psychologist from the forensic

         1
            We acknowledge that the term “mentally retarded” was used in the initial appeal in this case, as
     that was the term used during the trial proceedings and in all relevant case law. However, because that
     term is no longer the preferred nomenclature, for purposes of this appeal we will use “intellectually
     disabled.”
          2
            We note that section 12-14.1(b)(2) was recodified as section 11-1.40(b)(2) (see 720 ILCS
     5/11-1.40(b)(2) (West 2010)) and became effective July 1, 2011.

                                                    -2-
       clinical services office of the circuit court. Dr. Ferguson testified that the defendant “had a very
       basic knowledge of most legal proceedings” and that the things “he was not familiar with, he
       was able to understand with an explanation and to retain and *** repeat it.” According to Dr.
       Ferguson, for example, the defendant understood that a judge was the person who “sentences
       you,” that he was the defendant in the case, and that the jury was “some crazy people that sit up
       in some room. They say what they say. They can’t judge me.” The defendant understood that
       jurors “talk about the case in a room and give a paper that read[s] guilty or not guilty.” Dr.
       Ferguson acknowledged that the defendant did not know the role of the prosecutor but averred
       that, after she explained it, the defendant acknowledged that the prosecutor was not “on [his]
       side.” Dr. Ferguson further opined that the defendant was aware of his charges, the allegations
       against him, and the possible penalties (which he described to her as, “I know I can get 6 to
       30[.] I know that.”). Dr. Ferguson further acknowledged that the defendant initially did not
       understand that he could choose whether to proceed with a bench or jury trial but instead
       believed that this was a decision reserved to the trial judge. Nonetheless, she averred that, after
       she explained, the defendant understood that it was his option. Dr. Ferguson opined that based
       on her examination the defendant was fit to stand trial.
¶8         On cross-examination, Dr. Ferguson was asked whether she was aware that the defendant
       was receiving Social Security disability based on his intellectual disability. 3 She
       acknowledged that she was aware of this fact but was unable to confirm the intellectual
       disability for which the defendant was receiving disability checks. She admitted that her office
       had requested this information from the Social Security office but then “gave up waiting for it
       and filed [the] report” attesting to the defendant’s fitness.
¶9         On cross-examination, Dr. Ferguson further admitted that she did not perform any
       standardized tests to evaluate the defendant’s intellectual disability but acknowledged that it
       was her understanding that his full scale IQ score was 65.
¶ 10       On redirect examination, Dr. Ferguson admitted that it was her opinion that the defendant
       was in fact mildly intellectually disabled4 but testified that a diagnosis of intellectual disability
       does not “tell *** anything about whether an individual is fit or unfit” to stand trial.
¶ 11       In opposition, the defendant called Dr. Sandra Dawkins, who was qualified as an expert in
       clinical psychology. Dr. Dawkins testified that the defendant’s full scale IQ was 55, which
       placed him in the “extremely low” range of intelligence when compared to normal adults, so as
       to make him unfit to stand trial. Dr. Dawkins explained that in coming to her conclusion she,
       inter alia, (1) interviewed the defendant on two occasions; (2) reviewed numerous documents,
       including his entire forensic clinical services record, court records, and police records; and
       (3) administered four scientifically recognized standardized tests to evaluate his cognitive
       ability,5 his adaptive behavior,6 his competency to understand Miranda warnings,7 and his
       competency to stand trial as an intellectually disabled person. 8 Among other things, Dr.
       Dawkins opined that under the Social Security disability standards an individual is eligible for
           3
             The term used was “mental retardation.”
           4
             Again the term “mentally retarded” was used.
           5
             The Wechsler Adult Intelligence Scale (WAIS-III) (otherwise known as an IQ test)
           6
             The Adaptive Behavior Assessment System-II (ABAS-II)
           7
             The Assessing Understanding and Appreciation of Miranda Rights test
           8
             The Competency Assessment to Stand Trial for the Mentally Retarded (CAST-MR)

                                                     -3-
       intellectual disability benefits with an IQ score of 59 or under. She stated that the results of the
       IQ test she administered on the defendant were consistent with the defendant receiving Social
       Security benefits. She pointed out that the defendant received a verbal score of 55, a
       performance score of 64, and a full scale IQ score of 55, which placed him in the “one percent
       of the population who retain IQ scores at that level.”
¶ 12       Dr. Dawkins also testified regarding her interviews with the defendant and stated that the
       defendant’s concentration level was variable, that he had a very short attention span, and that
       he had difficulty explaining similarities. In addition, while he knew where he was and what the
       date was, he could provide neither the day of the week nor the approximate time of day. When
       asked how he knew the date, he stated, “It is my court date. That is what I have been told.”
¶ 13       Dr. Dawkins further averred that, throughout the interviews, the defendant’s responses
       were very inconsistent. She explained that there were elements of his statements that would
       imply he had an understanding of the court system, but when any one particular concept was
       explored further it became apparent that the defendant did not, in fact, understand it. She stated
       that once she explained certain concepts to him, he would easily acquiesce to the point, accept
       her explanation, and regurgitate it. She explained that this allowed him to feel calmer and not
       worry. According to Dr. Dawkins, the defendant does “not accept that he is as cognitively
       limited as he is, so he projects an image that he knows more than what he actually knows.” In
       that respect, he has acquired a lot of “street jargon” and “tries to portray himself as being more
       knowledgeable about the world around him than he actually is.”
¶ 14       In addition, Dr. Dawkins testified that she interviewed the defendant’s sister and uncle as
       part of the adaptive behavior test. She opined that the results of that test showed that the
       defendant would have “a very, very difficult time functioning in society independently,” and
       would require “support in the work world, at home, [and] caring for his personal decision
       making.” She stated that the defendant “acts without considering the consequences of his
       actions” and is therefore “easily exploited,” both because of his “low mental ability” and desire
       to “fit in.”9
¶ 15       After hearing the evidence and arguments by both parties, the trial court found that,
       although it was undisputed that the defendant was intellectually disabled, 10 he was
       nevertheless fit to stand trial.
¶ 16                                 B. Motion to Suppress Confession
¶ 17       Prior to trial, the parties also litigated the defendant’s motion to suppress inculpatory
       statements he had made to police. At a hearing on that motion, the following evidence was
       presented regarding the defendant’s cognitive abilities. The State again called expert forensic
       psychologist Dr. Ferguson, who was now tasked with determining whether the defendant was
       capable of understanding his Miranda rights. Dr. Ferguson averred that, in order to assess this

          9
            Dr. Dawkins’s report, which is part of the record on appeal, further notes that when she
       interviewed the defendant she was struck by the fact that although he was 41 years old, he was very
       small (approximately 5’5” in height at 120 lbs) and had a “childlike demeanor,” so much so that he
       could be mistaken for a child, until one looked at his face. Dr. Dawkins’s report further notes that
       throughout her interaction with the defendant, he exhibited noticeable shaking. When asked why he
       was shaking, the defendant stated that he “always had and that [this] was why his nickname was
       ‘Shakey.’ ”
           10
              The trial court used the term “mentally retarded.”

                                                    -4-
       ability, she performed only one part of the four-part “Grisso scales” test on the defendant,
       specifically, the function of rights in interrogation part. 11 According to Dr. Ferguson, the
       defendant successfully applied the Miranda warnings he had received to a hypothetical
       situation and therefore passed this portion of the “Grisso scales” test. Dr. Ferguson also
       averred that, during her interview with the defendant, the defendant exhibited an
       understanding of his Miranda rights. In particular, Dr. Ferguson explained that the defendant
       had acknowledged to her that the police read him his Miranda rights. When asked to explain
       what those rights entailed, the defendant told Dr. Ferguson, “yeah I know they [sic] supposed
       to read you your rights *** I’m slow but I ain’t that slow. They have to read you your rights.
       They can’t just lock you up like that without reading you your rights.”
¶ 18       In opposition to the State’s testimony, the defendant called his own expert, Dr. Michael
       Fields. Unlike Dr. Ferguson, Dr. Fields testified that to determine the defendant’s ability to
       understand Miranda, he administered the full Grisso scales test. Dr. Fields testified that the
       defendant scored poorly on all four parts of that test. In addition, he stated that during his
       interview with the defendant, the defendant could not name his Miranda rights. Based on the
       above, Dr. Fields opined that “there were significant doubts about [the defendant’s] ability to
       understand Miranda.” However, when questioned further, Dr. Fields acknowledged that he
       could not state with certainty that the defendant was categorically unable to understand those
       rights.
¶ 19       The trial court denied the defendant’s motion to suppress his statements to police, noting
       that Dr. Ferguson’s interview provided the stronger and better evidence of the defendant’s
       capacity to understand Miranda. The court stated that Dr. Fields articulated an equivocal
       opinion that lacked certainty, and that his opinion was based more on testing than on a clinical
       interview of the defendant.

¶ 20                                             C. Jury Trial
¶ 21       At trial, the victim K.W. testified that she was six years old in November 2004 and that the
       defendant, whom she knew as “Shakey,” lived as a boarder in her grandparents’ house. The
       defendant lived in the basement, as did K.W.’s parents and siblings, and K.W. was allowed to
       sleep in the basement or upstairs with her grandparents. K.W. testified that on November 18,
       2004, she was watching TV alone in the defendant’s room in the basement, while her parents
       and cousin were asleep. She stated that she was wearing a T-shirt, skirt, and underwear. K.W.
       averred that the defendant came into the room and sat down on the couch with her. He then
       started to “scooch” toward her, and every time she moved away, he moved closer until she
       could no longer move. K.W. stated that the defendant then touched her arm, her shoulder, and
       her leg and then “started messing with me down there.” She identified that part of her body as
       the “part that [she] use[s] to go to the bathroom with.” K.W. then explained that the defendant
       had “not [touched her] with his hand, but with his tongue” and indicated that she was on the

           11
             The “Grisso scales” test, otherwise knowing as the Comprehension of Miranda Rights: Manual
       for Administration and Scoring, provides four instruments by which mental health professionals may
       assess the capacity of individuals to appreciate and understand the significance of their Miranda rights.
       These include (1) the comprehension of Miranda rights, (2) the comprehension of Miranda rights
       recognition, (3) the comprehension of Miranda vocabulary, and (4) the function of rights in
       interrogation.

                                                       -5-
       floor when he pushed her underwear to the side of her leg and did so. The defendant then told
       K.W., “you won’t tell anyone.” K.W. immediately went and woke her mother and told her that
       the defendant had “messed with her down there.”
¶ 22       On cross-examination, K.W. denied telling the police that the defendant touched her
       vagina with his hand and insisted that she had told them that he had used his tongue. She
       similarly admitted that she did not tell the emergency room physician that the defendant had
       used his tongue. When asked to explain why she did not tell the emergency doctor that the
       defendant had licked her instead of touched her, K.W. stated that she forgot.
¶ 23       K.W.’s mother, Keafa W., next testified that, on the night in question at about 11 p.m.,
       K.W. came into her room and told her “Shakey touched me,” patting her vaginal area to show
       where she had been touched. Keafa woke her husband up, and they went upstairs with K.W. to
       talk to K.W.’s grandparents. While they were upstairs, Keafa heard the front door close, and
       her husband observed the defendant leaving.
¶ 24       On cross-examination, Keafa admitted that K.W. never told her that the defendant licked
       her and that she only accused him of “touching her.” Keafa also acknowledged that she did not
       call the police until the next afternoon, November 19, 2004, but stated she did not do so
       because she was waiting for K.W.’s grandparents to do so.
¶ 25       Pediatric emergency physician Dr. Gail Allen testified that she examined K.W. on
       November 21, 2004, and that, during that exam, K.W. pointed at her vagina and told her that
       the defendant had “touched her.” Dr. Allen stated that K.W.’s physical examination was
       “normal” and that she found no signs of penetration, trauma, or “touching.”
¶ 26       On cross-examination, Dr. Allen acknowledged that K.W. did not tell her that the
       defendant had touched her with his tongue. She also admitted that K.W.’s chart from the
       emergency room visit revealed that K.W. had told a resident that she was wearing shorts and
       not a skirt on the night of the incident.
¶ 27       Chicago police officer Donald Story next testified that at about midnight on November 21,
       2004, he and his partner, Officer Elkins, arrested the defendant at his sister’s home. Once in the
       police car, Officer Elkins informed the defendant of his Miranda rights and asked him if he
       wanted to answer the police officers’ questions. According to Officer Story, the defendant
       agreed and asked what the arrest was about. Upon being told of the allegations, the defendant
       told the officers that K.W. “came into [his] room, sat on [his] lap, [and] rubbed around a little
       bit.”
¶ 28       Assistant State’s Attorney (ASA) Dean Fugate testified that on November 22, 2004, he
       spoke to the defendant at Area 1 police station in the presence of two detectives, Mirandized
       the defendant and then took down his handwritten statement.12 That statement was published
       to the jury. In the statement, the defendant confirmed that he was 40 years old and that, in
       November 2004, he rented a room in the basement of 7036 South Aberdeen Avenue in
       Chicago, where he shared the basement with K.W. and her family. The defendant stated that on
       November 18, 2004, he was changing his clothes in his bedroom with his door open when
       K.W. walked into the room. He told K.W. to leave, but she would not. The defendant finished
       changing his clothes behind a curtain and then sat on his couch. He averred that K.W. then sat
       on his lap and “began grinding her butt on his lap.” The defendant stated that “his penis was
           12
             Because the defendant was illiterate, ASA Fugate handwrote the statement for the defendant, and
       the defendant “signed” each page.

                                                     -6-
       hard” but claimed that he and K.W. were both clothed.13 He placed his right hand underneath
       K.W.’s clothes, touched her vagina, and “inserted his finger into [K.W.’s] vagina up to the first
       joint.” The defendant stated that he did not move his finger inside of K.W.’s vagina and that he
       kept it inside only for “one minute.” The defendant averred that K.W. said, “that feels good.”
¶ 29       In his statement, the defendant further added that K.W. pulled her shorts and panties down
       to her knees before sitting on his lap. The defendant also stated that after K.W. got off his lap
       and pulled her pants up, she left the room and went upstairs with her parents into her
       grandparents’ room. The defendant then left the house out of the front door and went to his
       sister’s house. He also stated that he “felt bad that he touched the little girl.”
¶ 30       In his statement, the defendant also indicated that he understands and writes English but
       that he cannot read.
¶ 31       After the defendant’s statement was read into the record, the State rested. The defense
       presented no witnesses, and the parties proceeded with closing arguments. The jury returned a
       verdict of guilty.

¶ 32                                   D. Original Sentencing Hearing
¶ 33       On November 17, 2006, the trial court held a sentencing hearing, wherein the defendant’s
       sister, Irma Coty, testified regarding his cognitive disabilities. Irma testified that the defendant
       has been intellectually disabled since he was born, does “not understand what is going on,” and
       needs psychiatric treatment. The original presentence investigation report (PSI), which was
       admitted into the record, revealed that the defendant attended special education classes in the
       Chicago public school system up until the eighth grade and that he received Social Security
       disability from the State of Illinois because of his mental health. The original PSI noted that the
       defendant had undergone a behavioral clinical examination (BCX) as part of his evaluation for
       his fitness to stand trial and that the BCX was part of the court record. In addition, the original
       PSI revealed that the defendant could not read or write. The original PSI further revealed that
       the defendant’s sister Irma “takes care of him, handles his finances and helps him with his
       daily routine.”
¶ 34       Despite the aforementioned evidence, based upon the defendant’s prior conviction for
       aggravated criminal sexual assault in case No. 88 CR 12137, 14 the court sentenced the
       defendant to natural life in prison, pursuant to the mandates of section 12-14.1(b)(2) of the
       Criminal Code (720 ILCS 5/12-14.1(b)(2) (West 2004)). In doing so, the trial judge noted that
       he would not have sentenced the defendant to natural life but that he was bound by statute to do
       so. As the court explained:
                    “[T]he parties recognize that the court’s hands are tied because of the prior
                conviction for aggravated criminal sexual assault, which makes this conviction one for
                which he must receive a sentence of life imprisonment without parole. The facts of the
                cause certainly warrant a substantial sentence here. It would not be the sentence that the

          13
               ASA Fugate acknowledged that the defendant initially said that the victim’s pants were on
       throughout the incident. ASA Fugate subsequently claimed, however, that while giving the handwritten
       statement, the defendant changed his story and averred that the victim removed her pants during the
       incident.
            14
               The defendant committed this crime in 1988 when he was 24 years old. The victim in that case
       was nine. The defendant was sentenced to, and served, six years in prison.

                                                    -7-
               court is required to give, had I any discretion, but I must follow the law nonetheless.
               The legislature has determined a second aggravated criminal sexual assault in one’s
               lifetime means what they say it means.”

¶ 35                                          E. Direct Appeal
¶ 36        The defendant subsequently appealed his conviction, arguing that (1) he was denied his
       due process right to notice, (2) the testimony of Dr. Allen was inadmissible hearsay and
       violated his right to confrontation, (3) he was denied his right to a fair trial because of improper
       prosecutorial comments, and (4) he was denied his right to effective representation of counsel
       where counsel failed to object to the prosecutor’s comments and failed to impeached K.W.’s
       trial testimony with her prior inconsistent statements. See Coty I, slip order at 1. On March 27,
       2009, this court affirmed the defendant’s conviction and sentence. Id. at 25. His petition for
       leave to appeal to the Illinois Supreme Court was denied on September 30, 2009. See People v.
       Coty, 233 Ill. 2d 571 (2009).

¶ 37                                  F. Petition for Relief From Judgment
¶ 38       On March 8, 2012, the defendant filed a pro se section 2-1401 petition for relief from
       judgment (735 ILCS 5/2-1401 (West 2012)), alleging that his mandatory natural life sentence
       was unconstitutional because the trial court was prohibited from considering his individual
       characteristics (namely his intellectual disability) and the circumstances of the offense in
       ordering that sentence. The defendant acknowledged that his petition was untimely under the
       statute (id.) but claimed that his sentence was void and that therefore he could challenge it at
       any time. The defendant asked the trial court to vacate his sentence and remand for
       resentencing in the 6-to-30-years range. The State did not file any response to the defendant’s
       petition.
¶ 39       On May 10, 2012, the trial court sua sponte dismissed the defendant’s petition. In its
       written order, the court first held that the petition was untimely because it was filed over five
       years after the defendant’s conviction on October 11, 2006, which was contrary to the mandate
       of the statute that it be filed within two years after the entry of final judgment. See id. The court
       also found that the defendant had failed to establish that the sentencing scheme under which he
       was sentenced to life imprisonment was unconstitutional.

¶ 40                                      G. Appeal and Remand
¶ 41        The defendant appealed the dismissal of his section 2-1401 petition to this court. On
       appeal, we affirmed in part, reversed in part, and remanded for further proceedings. See Coty
       II, 2014 IL App (1st) 121799-U, ¶ 78. In doing so, we first found that the trial court erred in
       sua sponte dismissing the defendant’s petition on the basis of timeliness. Id. ¶¶ 35-42. We then
       considered the merits of the defendant’s petition and held that, while the defendant had failed
       to properly state a facial challenge to the mandatory sentencing scheme under which he was
       sentenced to natural life in prison, that same scheme was unconstitutional as applied to him,
       under the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I,
       § 11) because of his intellectual disability and corresponding diminished culpability. Coty II,
       2014 IL App (1st) 121799-U, ¶¶ 43-75. In doing so, we recognized that the defendant was
       intellectually disabled with an IQ score somewhere between 55 and 65. Id. ¶ 66. As a result,
       under our prevailing social norms, his culpability was less than that of a person with normal

                                                     -8-
       cognitive capacity. Id. In addition, we held, “it cannot be ignored that the offense [albeit
       serious] *** included a single, brief act of penetration that did not result in any physical injury
       to the victim.” Id. ¶ 67. We further noted that the encounter was neither orchestrated nor
       preplanned but “rather was seemingly impulsive, and the defendant expressed remorse over
       what he had done.” Id. Accordingly, we vacated the defendant’s sentence and remanded to the
       trial court for resentencing to give the trial court discretion to impose a term of years. Id. ¶ 78.

¶ 42                                            H. Resentencing
¶ 43       On remand, a new sentencing hearing was held on August 10, 2016. No new evidence was
       presented at that hearing regarding the defendant’s circumstances over the decade that had
       passed since he was first sentenced. Instead, prior to the hearing, the court noted that the
       appellate court had remanded the matter for resentencing, “indicating that Judge Toomin had
       observed during the course of the original trial that [the defendant] suffered from an
       intellectual disability.” At the hearing, the court stated it had been “tendered a large volume of
       materials,” which included “the transcript of the original trial, and the sentencing that
       occurred, incorporating the testimony of a doctor who testified regarding [the defendant’s]
       intellectual difficulties or disabilities. I am taking all that into account.” After questions from
       defense counsel, the court also acknowledged that it had reviewed the expert opinion given at
       the defendant’s motion to suppress hearing, as well as the new PSI.15
¶ 44       The parties then proceeded with very brief arguments. In aggravation, the State, inter alia,
       argued that the victim’s mother was “very troubled by the fact that the defendant had to be
       resentenced” and wanted “her feelings” represented to the court. The State further argued the
       offense was serious and that the defendant knew what he was doing when he approached the
       victim. The State therefore asked for “a significant number of years.”
¶ 45       In mitigation, defense counsel argued that, in remanding for resentencing, this court had
       already found that the crime was a single contact lasting less than a minute and was impulsive
       rather than preplanned or orchestrated. Additionally, the defendant had expressed remorse
       over what he had done. Defense counsel further argued that it was undisputed that the
       defendant was intellectually disabled and therefore less culpable. Accordingly, defense
       counsel asked that the court give the defendant “a term of years that allows him upon sufficient
       punishment to resume some sort of life following incarceration.”
¶ 46       After hearing arguments, the trial court sentenced the defendant to 50 years in prison to be
       served at 85%, followed by 3 years to life of mandatory supervised release (MSR). In entering
       this sentence, the court stated:
               “William, I’m going to consider today the evidence presented at trial, the [new]
               pre-sentence report, the evidence offered in aggravation, mitigation, the statutory
               factors in aggravation, mitigation, the financial impact of incarceration, the arguments

           15
             We note that the record contains two new PSI reports, one dated December 18, 2014, and the
       other dated March 21, 2016. These two PSI reports are almost identical and make no reference to the
       defendant’s intellectual disability or his behavior/actions in the last 10 years of incarceration. With
       respect to the defendant’s psychological health history, both new PSIs merely report that the defendant
       states that he has never been treated by a mental health professional. In addition, under the rubric
       “Attitudes/Values,” the new PSIs simply state that “[t]he defendant’s criminal background indicates an
       anti-social personality” and that “[h]is previous behavior reflects a lack of social conformity.”

                                                      -9-
               the attorneys just made here moments [a]go, and the assertions relative to the mother of
               the victim indicating that she still takes this case seriously, this was a serious case, and
               this was an offense committed by somebody whom this was not the first.”
¶ 47       Defense counsel subsequently filed a motion to reconsider, arguing, inter alia, that (1) the
       sentence was excessive in light of the defendant’s background and the nature of the offense,
       citing the proportionate penalties clause, (2) the court improperly considered in aggravation
       matters that were implicit in the offense, and (3) the State failed to prove eligibility for an
       enhanced penalty or extended term. The trial court denied this motion, and the defendant now
       appeals.

¶ 48                                            II. ANALYSIS
¶ 49       On appeal, the defendant makes three arguments regarding his sentence. First, he asserts
       that the trial court abused its discretion in sentencing him to a 50-year extended term sentence,
       without properly considering that it was, in fact, imposing a de facto life sentence on a
       defendant with intellectual disabilities. Second, the defendant contends that the imposition of
       this de facto life sentence is unconstitutional as applied to him both under the eighth
       amendment and the proportionate penalties clause. For the reasons that follow, we agree with
       the latter contention.

¶ 50                                       A. Abuse of Discretion
¶ 51        At the outset we acknowledge our supreme court’s mandate that we consider
       nonconstitutional arguments before considering constitutional ones (In re E.H., 224 Ill. 2d
       172, 178 (2006)). Accordingly, we must first consider whether the trial court abused its
       discretion in sentencing the defendant to 50 years’ imprisonment in light of our prior mandate.
       A reviewing court will find an abuse of discretion only where the sentencing decision is
       fanciful, unreasonable, or arbitrary and no reasonable person would take the view adopted by
       the trial court. People v. Abrams, 2015 IL App (1st) 133746, ¶ 32.
¶ 52        Our decision to resentence the defendant was filed on August 28, 2014. There, presented
       with a mandatory natural life sentence, we held that resentencing was necessary under the
       proportionate penalties clause because the statutory scheme precluded the sentencing court
       from considering the unique characteristics of the intellectually disabled defendant. See Coty
       II, 2014 IL App (1st) 121799-U, ¶¶ 61-75. Our analysis, however, did not address whether a
       sentencing court must consider whether an intellectually disabled defendant has characteristics
       accompanying that disability that reduce his culpability. In addition, based on the law in
       existence at the time, our decision did not address whether, under either the state or federal
       constitutions, a de facto life sentence or a discretionary life sentence would be unconstitutional
       as applied to the intellectually disabled defendant in this case. In fact, our mandate nowhere
       directed that the trial court was required to consider the defendant’s intellectual disability and
       accompanying characteristics in issuing a sentence. Instead, we only stated, “the defendant,
       who is [intellectually disabled], should not have been sentenced to mandatory natural life
       imprisonment, without the trial court having had an opportunity to consider his mental
       capacity and the facts surrounding the commission of the offense.” (Emphasis added.) Id. ¶ 75.
       We therefore remanded “for resentencing before a court that has discretion to impose a
       term-of-years sentence.” Id. ¶ 77.


                                                    - 10 -
¶ 53       On remand, the trial court imposed a term of years within the appropriate sentencing
       range.16
¶ 54       In doing so, the trial court acknowledged the defendant’s intellectual disability but found
       that other factors warranted a 50-year prison term. Although the trial court’s findings in this
       respect are, at best, sparse, the trial court explicitly stated it considered the evidence presented
       at the defendant’s trial and the parties’ arguments, both of which referenced the defendant’s
       disability at the time of his trial in 2006. Since the trial court did no more or less than we
       instructed it to do, we find no abuse of discretion. See Abrams, 2015 IL App (1st) 133746,
       ¶ 33.

¶ 55                                    B. Constitutional Arguments
¶ 56       That said, however, we are now asked to determine for the first time whether the
       defendant’s 50-year prison term constitutes a de facto life sentence imposed in a manner
       inconsistent with the eighth amendment and the proportionate penalties clause. As shall be
       fully discussed below, we find that the trial court on remand imposed a discretionary de facto
       life sentence without a record sufficient to assess the unique factors that can impact the
       culpability of the intellectually disabled. We hold that this procedure resulted in constitutional
       error. See Ill. Const. 1970, art I, § 11.
¶ 57       The defendant challenges his sentence both under the eighth amendment and the
       proportionate penalties clause. As an initial matter, the State argues that the defendant has
       forfeited any constitutional arguments by failing to properly preserve them below but then
       concedes that our supreme court has urged that “the interests of judicial economy favor
       addressing [such] issue[s] on direct appeal rather than requiring defendant to raise [them] in a
       separate postconviction petition.” People v. Cregan, 2014 IL 113600, ¶ 18. The defendant
       responds that he has properly preserved the proportionate penalties issue by raising it in his
       postsentencing motion and urges us to consider his eighth amendment challenge under the
       plain error doctrine. While we would reach the same result under both the federal and state
       constitutions, because the defendant only raised the proportionate penalties argument in his
       motion to reduce his sentence, we will proceed with the merits of that claim alone.
¶ 58       The Illinois Constitution states 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. “[T]he framers [of the Illinois Constitution] intended
       *** to provide a limitation on penalties beyond those afforded by the eighth amendment.”
       People v. Gipson, 2015 IL App (1st) 122451, ¶ 69; People v. Harris, 2016 IL App (1st)
       141744, ¶ 40. And our supreme court has held that it is inaccurate to state that these two
       constitutional provisions are synonymous, although the relationship between them is certainly
       unclear. See People v. Clemons, 2012 IL 107821, ¶¶ 36-37, 40 (holding that the proportionate
       penalties clause “focuses on the objective of rehabilitation” and places greater limitations on
       the legislature’s ability to prescribe harsh sentences than the eighth amendment). But see
       People v. Patterson, 2014 IL 115102, ¶ 106. Nevertheless, our supreme court has never shied

           16
             As a Class X offender the defendant was punishable by a sentencing range between 6 and 30
       years. 730 ILCS 5/5-8-1(a)(3) (West 2004). In addition, because the victim was under 18 years of age,
       the defendant was further eligible for an extended term sentence up to 60 years’ imprisonment (id.
       § 5-5-3.2(c)).

                                                    - 11 -
       from applying eighth amendment precedent to decide proportionate penalties cases, and we see
       no reason why we should not do the same here. See, e.g., People v. Miller, 202 Ill. 2d 328, 339
       (2002) (hereinafter Leon Miller); see also Patterson, 2014 IL 115102, ¶ 106.
¶ 59        To succeed on a proportionate penalties claim, the defendant here must show either (1) that
       the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense
       as to shock the moral sense of the community or (2) that similar offenses are compared and the
       conduct that creates a less serious threat to the public health and safety is punished more
       harshly. People v. Klepper, 234 Ill. 2d 337, 348-49 (2009); see also Leon Miller, 202 Ill. 2d at
       338.
¶ 60        Our supreme court has repeatedly refused to define what kind of punishment qualifies as
       cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the
       community, because “as our society evolves, so too do our concepts of elemental decency and
       fairness which shape the ‘moral sense’ of the community.” Leon Miller, 202 Ill. 2d at 339
       (citing Trop v. Dulles, 356 U.S. 86, 101 (1958) (whether a punishment shocks the moral sense
       of the community is based upon an “evolving standard[ ] of decency that mark[s] the progress
       of a maturing society”)).
¶ 61        Noting that our supreme court has repeatedly held that those “evolving standard[s] of
       decency *** mark[ ] the progress of a maturing society,” in Coty II, we reviewed the gravity of
       the defendant’s offense in connection with the severity of his sentence within our community’s
       evolving standard of decency. (Internal quotation marks omitted.) Coty II, 2014 IL App (1st)
       121799-U, ¶ 62.
¶ 62        At the time we decided Coty II, that standard had evolved to prohibit the imposition of the
       death penalty on juveniles and intellectually disabled offenders, as well as to condemn the
       imposition of mandatory natural life imprisonment on juveniles. See id. ¶ 63 (citing Graham v.
       Florida, 560 U.S. 48, 68 (2010), Roper v. Simmons, 543 U.S. 551, 569-70 (2005), Miller v.
       Alabama, 567 U.S. 460, 488-89 (2012),17 and Atkins v. Virginia, 536 U.S. 304, 321 (2002)).
       Accordingly, in Coty II, we held that the statutory provision under which the defendant had
       been sentenced to mandatory natural life imprisonment, without the trial court having any
       discretion, was disproportionate as applied to him, so as to shock the moral sense of our
       community. Id. ¶¶ 64-69 (citing Leon Miller, 202 Ill. 2d at 339-42).
¶ 63        Since our decision in Coty II, our community’s standards of decency have considerably
       evolved, albeit in the context of juvenile defendants and the eighth amendment (U.S. Const.,
       amend. VIII). First, in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), the

           17
             Roper held that the eighth amendment prohibited death penalty 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.
       Miller held that the eighth amendment prohibited mandatory life sentences for juveniles who commit
       murder. Miller, 567 U.S. at 489-90. All three decisions recognized the following general difference
       between juveniles and adults, which render juveniles less morally reprehensible: (1) lack of maturity
       and underdeveloped sense of responsibility; (2) vulnerability and susceptibility to negative influences
       and outside pressures; and (3) a yet unfully formed character, which makes them more malleable and
       their malfeasance less indicative of irretrievable depravity. Graham, 560 U.S. at 68; Roper, 543 U.S. at
       569-70. In Miller, the Supreme Court further held that “children are constitutionally different from
       adults for purposes of sentencing” and that a trial court must therefore be able to consider mitigating
       factors in determining whether to impose a natural life sentence. Miller, 567 U.S. at 471.

                                                     - 12 -
       United States Supreme Court held that state courts must give Miller effect in collateral
       proceedings and that, under Miller, life imprisonment without parole is unconstitutional for
       juvenile offenders “whose crimes reflect the transient immaturity of youth” “for all but the
       rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at ___,
       136 S. Ct. at 734.
¶ 64       Next, in People v. Reyes, 2016 IL 119271, ¶ 9, our supreme court interpreted the holding of
       Miller to apply to de facto as much as de jure life sentences. Noting that Miller’s “holding
       required that life-without-parole sentences be based on judicial discretion rather than statutory
       mandates” (id. ¶ 4), our supreme court held:
                   “A mandatory term-of-years sentence that cannot be served in one lifetime has the
               same practical effect on a juvenile defendant’s life as would an actual mandatory
               sentence of life without parole—in either situation, the juvenile will die in prison.
               Miller makes clear that a juvenile may not be sentenced to a mandatory, unsurvivable
               prison term without first considering in mitigation his youth, immaturity, and potential
               for rehabilitation.” Id. ¶ 9.
¶ 65       In addition our supreme court held:
               “ ‘[T]he teachings of the Roper/Graham/Miller trilogy require sentencing courts to
               provide an individualized sentencing hearing to weigh the factors for determining a
               juvenile’s “diminished culpability ***” when, as here, the aggregate sentences result in
               the functional equivalent of life without parole. To do otherwise would be to ignore the
               reality that lengthy aggregate sentences have the effect of mandating that a juvenile
               “die in prison even if a judge or jury would have thought that his youth and its attendant
               characteristics, along with the nature of his crime, made a lesser sentence *** more
               appropriate.” [Citation.] Such a lengthy sentence “ ‘means denial of hope; it means that
               good behavior and character improvement are immaterial; it means that whatever the
               future might hold in store for the mind and spirit of [the juvenile convict], he will
               remain in prison for the rest of his days.’ ” [Citation.] That is exactly the result that
               Miller held was unconstitutional. [Citation.]’ ” Id. (quoting Bear Cloud v. State, 2014
               WY 113, ¶ 33, 334 P.3d 132 (Wyo. 2014)).
¶ 66       Subsequently, in People v. Holman, 2017 IL 120655, our supreme court interpreted Miller
       to apply to discretionary, as much as mandatory, natural life sentences. Id. ¶ 40. The court
       there held that “[l]ife 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.” (Emphasis added.) See id. (interpreting Miller, 567 U.S. at
       465, and Montgomery, 577 U.S. at__, 136 S. Ct. at 736). Noting that Illinois courts have
       always held that age is a complex sentencing factor, our supreme court instructed that, before
       imposing either a mandatory or a discretionary natural life sentence on a juvenile, the trial
       court must first determine that the juvenile’s conduct showed “irretrievable depravity,
       permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation,”
       by considering the characteristics specific to juveniles articulated by the Supreme Court in
       Miller. Id. ¶ 46.18

           18
            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

                                                     - 13 -
¶ 67       Aside from our supreme court’s holdings in Holman and Reyes, since our decision in Coty
       II numerous panels of our appellate court have explicitly held that discretionary de facto life
       sentences for juveniles are unconstitutional under the eighth amendment. See, e.g., People v.
       Morris, 2017 IL App (1st) 141117, ¶ 30; People v. Nieto, 2016 IL App (1st) 121604, ¶¶ 42-43,
       pet. for leave to appeal pending, No. 120826 (filed July 8, 2016); People v. Smolley, 2018 IL
       App (3d) 150577, ¶¶ 21-22; People v. Ortiz, 2016 IL App (1st) 133294, ¶ 24, pet. for leave to
       appeal pending, No. 121578 (filed Dec. 30, 2016); People v. Buffer, 2017 IL App (1st)
       142931, ¶¶ 62-63, appeal allowed, No. 122327 (Ill. Nov. 22, 2017); People v. Sanders, 2016
       IL App (1st) 121732-B, ¶¶ 25-27, pet. for leave to appeal pending, No. 121275 (filed Oct. 12,
       2016). But see People v. Perez, 2018 IL App (1st) 153629, ¶¶ 37-38; People v. Hoy, 2017 IL
       App (1st) 142596, ¶ 46, pet. for leave to appeal pending, No. 122911 (filed May 9, 2018);
       People v. Jackson, 2016 IL App (1st) 143025, ¶¶ 54-58, pet. for leave to appeal pending, No.
       121527 (filed Nov. 3, 2016); People v. Evans, 2017 IL App (1st) 143562, ¶¶ 14-18, pet. for
       leave to appeal pending, No. 122701 (filed Sept. 19, 2017).
¶ 68       Accordingly, as of today, our community’s standards of decency appear to have evolved to
       prohibit the imposition of de jure and de facto mandatory and discretionary life sentences for
       juveniles, where procedurally the court fails to consider the attendant characteristics of youth.
       See Reyes, 2016 IL 119271, ¶ 9; Holman, 2017 IL 120655, ¶ 46; Buffer, 2017 IL App (1st)
       142931, ¶¶ 62-63.
¶ 69       In the midst of significant juvenile jurisprudence, however, one must not forget that such
       jurisprudence began with Atkins and the Court’s concern with the intellectually disabled. See
       Miller, 567 U.S. at 483-84, 509 (citing Atkins, 536 U.S. at 316, 342). In Coty II, we already
       held that under Atkins adults with intellectual disabilities deserve special treatment in a
       proportionality analysis (see Coty II, 2014 IL App (1st) 121799-U, ¶¶ 61-75). In doing so, we
       only implied that adults with intellectual disabilities should be treated similarly to minors. Id.
       We now unequivocally hold that they should.
¶ 70       Intellectually disabled individuals, just like juveniles, are less culpable, where the
       deficiencies associated with intellectual disability “diminish their personal culpability.”
       Atkins, 536 U.S. at 318. Indeed, “clinical definitions of [intellectual disability] require not only
       subaverage intellectual functioning, but also significant limitations in adaptive skills such as
       communication, self-care, and self-direction that became manifest before age 18.” Id.; see also
       730 ILCS 5/5-1-13 (West 2014) (defining intellectual disability as “sub-average general
       intellectual functioning generally originating during the developmental period and associated
       with impairment in adaptive behavior reflected in delayed maturation or reduced learning
       ability or inadequate social adjustment”). Intellectually disabled persons “frequently know the
       difference between right and wrong and are competent to stand trial,” but “by definition[,] they
       have diminished capacities to understand and process information, to communicate, to abstract
       from mistakes and learn from experience, to engage in logical reasoning, to control impulses,
       and to understand others’ reactions.” Atkins, 536 U.S. at 318.



       home environment; (3) the juvenile defendant’s degree of participation in the crime 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.

                                                      - 14 -
¶ 71       Additional risks accompanying the unique characteristics of the intellectually disabled are
       the possibility that they will unwittingly confess to crimes they did not commit, their lesser
       ability to give their counsel meaningful assistance, and the fact that they are “typically poor
       witnesses, and their demeanor may create an unwarranted impression of lack of remorse for
       their crimes.” Id. at 321. In addition, “there is abundant evidence that they often act on impulse
       rather than pursuant to a premeditated plan, and *** are followers rather than leaders.” Id. at
       318.
¶ 72       As such, just as “the distinctive attributes of youth diminish the penological justifications
       for imposing the harshest sentences on juvenile offenders” (Miller, at 567 U.S. at 472), the
       distinctive attributes of the intellectually disabled, who are by their very nature less culpable,
       diminish “the interest in seeing that the offender gets his ‘just deserts’ ” (Atkins, 536 U.S. at
       319).
¶ 73       Similarly, with respect to deterrence, the same cognitive and behavioral impairments that
       make intellectually disabled individuals less morally culpable make it less likely that they can
       process the fact that their behavior exposes them to severe punishment. Id. at 320.
¶ 74       Because intellectually disabled offenders are so unlikely to process the possibility of
       receiving a sentence equivalent to natural life imprisonment, they are unlikely to control their
       conduct based on that information. Id. at 319-20. Simply put, an intellectually disabled
       defendant is far less likely than an average adult to understand the permanence of life in prison,
       let alone weigh the consequences of such a life against the perceived benefit of criminal
       conduct. As such, just as with minors, it is less likely that the possibility of facing such an
       extreme sanction will deter an intellectually disabled person from committing a crime. Id.
¶ 75       Accordingly, since we hold today that minors and adults with intellectual disabilities
       should be treated similarly in a proportionality analysis, we see no reason why, under our
       community’s evolving standards of decency, the prohibition against the imposition of
       discretionary de facto life sentences without the procedural safeguards of Miller and its
       progeny should not be extended to intellectually disabled persons where the record shows that
       the trial court did not take into account those characteristics accompanying an intellectual
       disability as articulated in Atkins, so as to show “irretrievable depravity, permanent
       incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Holman,
       2017 IL 120655, ¶ 46. As Atkins articulated, those attendant characteristics include, but are not
       limited to, an intellectually disabled person’s diminished capacity (1) to understand and
       process information, (2) to communicate, (3) to abstract from mistakes and learn from
       experience, (4) to engage in logical reasoning, (5) to control impulses, and (6) to understand
       others’ actions and reactions, so as to be more susceptible to manipulation and pressure. Atkins,
       636 U.S. at 318.
¶ 76       In reaching this decision, we acknowledge that thus far our supreme court has declined to
       extend the Miller line of cases to adults. See People v. Thompson, 2015 IL 118151, ¶¶ 8-21.
       That decision, however, did not involve intellectually disabled defendants. Moreover, we find
       that a different determination is warranted here. That is because the Miller line of cases began
       with Atkins, and explicitly relied on Atkins’s rationale pertaining to the intellectually disabled,
       to expand the law to juvenile defendants. See, e.g., Miller, 567 U.S. at 483-84, 509 (citing
       Atkins, 536 U.S. at 316, 342); Roper, 543 U.S. at 560, 563-576 (discussing Atkins, 536 U.S.
       304). As such, it is more accurate to state that Miller and its progeny are an extension of Atkins.


                                                   - 15 -
¶ 77       Moreover, since we agree with those decisions that hold that the Illinois proportionate
       penalties clause is broader than the eighth amendment (see Clemons, 2012 IL 107821, ¶ 39;
       Gipson, 2015 IL App (1st) 122451, ¶¶ 69-70; Harris, 2016 IL App (1st) 141744, ¶ 38) and
       requires consideration of the constitutional objective of “restoring an offender to useful
       citizenship” (internal quotation marks omitted) (Leon Miller, 202 Ill. 2d at 338), an objective
       that is “much broader than defendant’s past conduct in committing the offense” (see Gipson,
       2015 IL App (1st) 122451, ¶ 72), we find that the procedural safeguards originating with
       Atkins, and created by Miller and its progeny, are applicable to intellectually disabled
       defendants under our constitution.
¶ 78       We now turn to the sentencing of this defendant. As already noted above, the defendant
       here was convicted of predatory criminal sexual assault (a Class X felony) punishable at the
       time of his offense by a sentencing range of 6 to 30 years’ imprisonment. 720 ILCS 5/12-14.1
       (West 2004) (recodified as 720 ILCS 5/11-1.40 (West 2012)); 730 ILCS 5/5-8-1(a)(3) (West
       2004). The defendant was also eligible for an extended term sentence up to 60 years’
       imprisonment because the victim was under 18 years of age (730 ILCS 5/5-5-3.2(c) (West
       2004)). Furthermore, under “truth in sentencing” statutes, the defendant was required to serve
       at least 85% of this sentence, depending upon his conduct, while serving that sentence. See
       People v. Harris, 2012 IL App (1st) 092251, ¶ 24 (noting that the “truth-in-sentencing”
       statutes do “not change the sentence actually imposed ***. [Citation.] Rather, [they]
       determine[ ] the percentage to be actually served, which in turn depends upon the conduct of
       the defendant while serving that sentence.”).
¶ 79       On remand, the trial court below sentenced the 52-year-old defendant to 50 years’
       imprisonment. According to the IDOC website, of which we may take judicial notice (see
       People v. Sanchez, 404 Ill. App. 3d 15, 17 (2010) (finding that this court can take judicial
       notice of the IDOC website); see also Buffer, 2017 IL App (1st) 142931, ¶ 62), with time
       served, the defendant’s earliest release (parole) date will be March 26, 2049, at which point he
       will be 84 years old. The defendant’s actual discharge date is set for March 27, 2052, at which
       point he will be 88. As shall be explained further below, under our prior holdings, and contrary
       to the State’s assertion, there can be no doubt that this sentence is equivalent to condemning
       the defendant to natural life imprisonment. See Buffer, 2017 IL App (1st) 142931, ¶ 62.
¶ 80       We acknowledge that our supreme court has not yet defined what constitutes a de facto life
       sentence, apart from stating that this is a sentence that is “unsurvivable” and “cannot be served
       in one lifetime” (Reyes, 2016 IL 119271, ¶¶ 8-9), and that our appellate courts appear to be
       split on this issue,19 and disagree as to whether it is even appropriate for a court of review to

           19
             The following courts have found de facto life sentences: Morris, 2017 IL App (1st) 141117, ¶ 30
       (discretionary 100 years); Nieto, 2016 IL App (1st) 121604, ¶¶ 42-43, pet. for leave to appeal pending,
       No. 120826 (filed July 8, 2016) (discretionary 78 years); Smolley, 2018 IL App (3d) 150577, ¶¶ 21-22
       (discretionary 65 years); Ortiz, 2016 IL App (1st) 133294, ¶ 24, pet. for leave to appeal pending, No.
       121578 (filed Dec. 30, 2016) (discretionary 60 years); Buffer, 2017 IL App (1st) 142931, ¶¶ 62-63,
       appeal allowed, No. 122327, (Ill. Nov. 22, 2017) (discretionary 50 years); Sanders, 2016 IL App (1st)
       121732-B, ¶¶ 25-27, pet. for leave to appeal pending, No. 121275 (filed Oct. 12, 2016) (discretionary
       sentence totaling 100 years, or “at least 49 years” with good-conduct credit). Conversely, the following
       courts have not found de facto life sentences: Perez, 2018 IL App (1st) 153629, ¶¶ 37-38 (discretionary
       53 years); Hoy, 2017 IL App (1st) 142596, ¶ 46, pet. for leave to appeal pending, No. 122911 (filed
       May 9, 2018) (discretionary 52 years); Jackson, 2016 IL App (1st) 143025, ¶¶ 54-58, pet. for leave to

                                                     - 16 -
       reflect on questions of biology and statistics (see Harris, 2016 IL App (1st) 141744, ¶ 52).
       Nonetheless, this exact panel has previously held that a 50-year sentence imposed on a
       16-year-old juvenile was a de facto life sentence. Buffer, 2017 IL App (1st) 142931, ¶ 62. In
       doing so, we relied on the decision in Sanders, 2016 IL App (1st) 121732-B, wherein the court
       looked to the United States Sentencing Commission’s Preliminary Quarterly Data Report, to
       determine the average life expectancy of a prisoner and found that a “ ‘person held in a general
       prison population has a life expectancy of about 64 years’ ” and that this estimate “ ‘probably
       overstate[s] the average life expectancy’ ” for those committed “ ‘to prison for lengthy
       terms.’ ” Buffer, 2017 IL App (1st) 142931, ¶ 59 (quoting Sanders, 2016 IL App (1st)
       121732-B, ¶ 26). We also noted that Sanders quoted a study that showed that each year in
       prison resulted in a two-year decline in life expectancy, resulting from “high levels of violence
       and communicable disease, poor diets, and shoddy health care *** behind bars,” and that
       subsequent courts have found that this “was not surprising given the harshness of a lifetime
       spent in a state penitentiary.” (Internal quotation marks omitted.) Id. (quoting Sanders, 2016 IL
       App (1st) 121732-B, ¶ 26); Harris, 2016 IL App (1st) 141744, ¶ 53. We therefore concluded
       that a 50-year discretionary sentence imposed on a 16-year-old juvenile, which permitted his
       release on parole at the earliest at age 66, which was 2 years over his life expectancy, was the
       equivalent of an unconstitutional mandatory natural life sentence. See Buffer, 2017 IL App
       (1st) 142931, ¶ 64.
¶ 81       Applying the rationale of Buffer and Sanders to the facts of this case, we are compelled to
       conclude that the intellectually disabled defendant, whose average life expectancy is at best
       6420 but who will not be released until he is at least 84, has similarly been condemned to spend
       the rest of his days in prison. This “unsurvivable” sentence is equivalent to natural life
       imprisonment, a sentence which the original sentencing judge, who presided over the trial,
       heard all the evidence, and viewed all the witnesses, believed was inappropriate. See Reyes,
       2016 IL 119271, ¶¶ 8-9.
¶ 82       Moreover, the record indicates that the trial court was not presented with current evidence
       of and, thus, could not have fully considered the attendant characteristics of the defendant’s
       intellectual disability.
¶ 83       In Holman, our supreme court held that in determining whether an error occurred in a
       defendant’s original sentence, a reviewing court “must look at the cold record to determine if
       the trial court considered [the attendant characteristics of youth] at the defendant’s original
       sentencing hearing.” Holman, 2017 IL 120655, ¶ 47. As the court explained, “the only
       evidence that matters” is the evidence at the “defendant’s original sentencing hearing.” Id.
       Here, however, we are not determining whether an error occurred in the defendant’s original

       appeal pending, No. 121527 (filed Nov. 3, 2016) (discretionary 50 years); or People v. Applewhite,
       2016 IL App (1st) 142330, ¶ 16, pet. for leave to appeal pending, No. 121901 (filed Feb. 10, 2017)
       (mandatory 45 years); Evans, 2017 IL App (1st) 143562, ¶¶ 14-18, pet. for leave to appeal pending,
       No. 122701 (filed Sept. 19, 2017) (discretionary 90-year total sentence, or 45 years with day-for-day
       good-conduct credit).
           20
              The defendant on appeal urges us to take judicial notice of the Central Intelligence Agency’s
       website, which states that the average life expectancy of a male in the United States is 77 years. We
       need not do so, however, since we may rely on our prior holdings, which refer to the more specific life
       expectancy of the prison population. See Buffer, 2017 IL App (1st) 142931, ¶ 59; Sanders, 2016 IL App
       (1st) 121732-B, ¶ 26.

                                                     - 17 -
       sentence, since we have already determined that error did occur. Instead, we are deciding
       whether constitutional error occurred on resentencing. Under these circumstances, the “cold
       record” before us is the one from the resentencing hearing.
¶ 84        That “cold” record does not establish that the trial court had a proper opportunity to
       consider, much less that it did consider, the attendant characteristics of the defendant’s
       intellectual disability and determined that the defendant was irretrievably depraved,
       permanently incorrigible, or irreparably corrupted beyond any possibility of rehabilitation so
       as to require a de facto life sentence. See id. ¶ 46.
¶ 85        In Coty II, we noted that it was undisputed that, at the time of the offense, the defendant
       was intellectually disabled with an IQ score somewhere between 55 and 65 and that, as such,
       under our prevailing social norms his culpability was less than that of a person with normal
       cognitive capacity. Coty II, 2014 IL App (1st) 121799-U, ¶ 66 (citing Atkins, 536 U.S. at 305).
       We further found that while we in no way diminished the seriousness of the offense, that
       offense included a single, brief act of penetration that did not result in any injury to the victim.
       Id. ¶ 67. In addition, we found that the encounter was an isolated event and that it was neither
       preplanned nor orchestrated but, rather, seemingly impulsive. Id. We further stated that we
       were troubled by the fact that the original sentencing judge, who had the benefit of observing
       the defendant throughout trial, had expressed reservations about imposing a life sentence under
       these particular circumstances. Id. ¶ 68. We finally noted that, despite the defendant’s
       cognitive impairments and the brief and limited, albeit serious, nature of his offense, the
       defendant had nonetheless been sentenced to the harshest penalty prescribed by our laws,
       which our jurisprudence dictates should be reserved for the most severe offense—murder. Id.
       ¶ 69 (citing People v. Brown, 2012 IL App (1st) 091940, ¶ 68, and Kennedy v. Louisiana, 554
       U.S. 407 438 (2008)).
¶ 86        Although on remand from Coty II, the resentencing court was in possession of the trial
       record created in 2006, that record was void of any information about the state of the attributes
       of the defendant’s intellectual disability in 2016. The new PSI ordered for purposes of
       resentencing contained no reference whatsoever to the defendant’s intellectual disability.
       Instead, it noted that the defendant had stated that he had never been treated by a mental health
       professional. In this respect, we find very troubling that the public defender did not attempt on
       remand to have the defendant reevaluated or to introduce any evidence that would enlighten
       the trial court as to whether the defendant had been receiving any special services for his
       disability in the last 10 years of his incarceration or whether those services had any effect. As
       such, the resentencing court was without an iota of evidence from which to determine whether
       the defendant’s cognitive ability, behavior, adaptability, or ability to comprehend the
       consequences of his actions had changed for better or worse in the 10 years of his
       imprisonment. Therefore, the trial court was without the necessary facts from which to
       determine whether the defendant could be restored to useful citizenship or whether he was so
       irretrievably depraved and of such danger of recidivism that a natural life sentence was
       warranted. Under these circumstances and in the context of our community’s clearly evolving
       standards of decency, we are compelled to conclude that the imposition of a 50-year de facto
       life sentence on this particular defendant, without the procedural safeguards of Atkins, Miller,
       and its progeny, was a penalty so wholly disproportionate that it violated the moral sense of our
       community. See Gipson, 2015 IL App (1st) 122451, ¶ 72 (“[T]he proportionate penalties
       clause demands consideration of the defendant’s character by sentencing a defendant with the

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       objective of restoring the defendant to useful citizenship, an objective that is much broader
       than defendant’s past conduct in committing the offense.”). Accordingly, we find the sentence
       unconstitutional under the proportionate penalties clause (Ill. Const. 1970, art. I, § 11).
¶ 87        We therefore vacate the defendant’s sentence and remand for a new sentencing hearing
       before a different judge. On remand, we urge the public defender to have the defendant’s
       mental health evaluated and to provide the court with as much information as possible as to the
       defendant’s behavior and progress, or lack thereof, while in prison. We also instruct the trial
       court on remand to give serious consideration to the attendant characteristics of the defendant’s
       intellectual disability and the fact that this disability “diminish[es] both [his] culpability and
       the need for retribution” particularly in the context of this, a nonhomicide offense. Gipson,
       2015 IL App (1st) 122451, ¶ 74; see also Atkins, 536 U.S. at 320. In addition, we remind the
       trial court that, should it determine that there is a bona fide doubt of the defendant’s fitness to
       be sentenced, it has the discretion to order a new fitness hearing to determine whether the
       defendant should continue to be housed in the general prison population or if he needs to be
       placed in a mental health facility where he can be treated for his intellectual disability before
       any sentence can even be imposed. 725 ILCS 5/104-11 (West 2016). Furthermore, because the
       defendant has already spent nearly 15 years in prison and this is the second time we are
       vacating his sentence, we instruct the trial court to act with the utmost expediency.

¶ 88                                      III. CONCLUSION
¶ 89      For all of the aforementioned reasons, we vacate the defendant’s sentence and reverse and
       remand for a new sentencing hearing, with instructions.

¶ 90      Sentence vacated.
¶ 91      Reversed and remanded with instructions.




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