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                                     Appellate Court                          Date: 2017.07.06
                                                                              09:08:43 -05'00'




                       People v. Morris, 2017 IL App (1st) 141117



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



District & No.         First District, Second Division
                       Docket No. 1-14-1117



Filed                  March 28, 2017
Modified upon denial
of rehearing           May 2, 2017


Decision Under         Appeal from the Circuit Court of Cook County, No. 10-CR-17983; the
Review                 Hon. Stanley J. Sacks, Judge, presiding.



Judgment               Remanded for resentencing.


Counsel on             Michael J. Pelletier and Melinda Grace Palacio, of State Appellate
Appeal                 Defender’s Office, of Chicago, for appellant.

                       Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                       Peter Fischer, and Margaret M. Smith, Assistant State’s Attorneys, of
                       counsel), for the People.



Panel                  JUSTICE PIERCE delivered the judgment of the court, with opinion.
                       Presiding Justice Hyman and Justice Neville concurred in the
                       judgment and opinion.
                                             OPINION

¶1       Defendant, Pharoah Morris, who was 16 years old at the time of the offense, was convicted
     of first degree murder, attempted murder, and aggravated battery with a firearm following a
     jury trial. He was sentenced to an aggregate sentence of 100 years in prison. Defendant
     appeals, arguing that (1) he received a de facto life sentence without meaningful consideration
     of mitigating circumstances, (2) the applicable sentencing statutes that mandate firearm
     enhancements are facially unconstitutional under the federal and Illinois constitutions and
     under the Illinois Constitution as applied to him, (3) section 5-130(1) of the Juvenile Court Act
     of 1987 (Act) (705 ILCS 405/5-130(1) (West Supp. 2015)), which automatically transfers
     16-year-olds charged with murder and attempted murder to adult court, therefore subjecting
     them to mandatory adult sentencing, violates the Federal and Illinois Constitutions and due
     process, and (4) he is entitled to a new sentencing hearing under the newly enacted section
     5-4.5-105 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-105(a), (b) (West
     Supp. 2015)), which requires trial courts to consider certain factors before sentencing and
     gives trial courts discretion to impose firearm enhancements for individuals under 18. For the
     reasons that follow, we remand for resentencing.

¶2                                            BACKGROUND
¶3        On September 8, 2010, Pharaoh Morris fatally shot DeAntonio Goss and attempted to kill
     Corey Thompson. Defendant was charged with first degree murder, attempted murder, and
     aggravated battery with a firearm.
¶4        Prior to trial, the State filed two motions to admit proof of other crimes. According to the
     first motion, Marvin Floyd was shot in the back on August 21, 2010, while riding his bicycle
     near a gas station. Defendant was identified as the offender. Subsequent testing of the
     .45-caliber bullet recovered from Floyd’s body and the .45-caliber bullet recovered from
     Goss’s body revealed that both bullets were fired from the same gun. The State’s motion
     sought admission of this evidence to show identity and absence of mistake.
¶5        The second motion stated that while at the Cook County jail, defendant discussed his
     pending murder case with his cellmate, Ricky Whitehead. Defendant approached Whitehead
     with a list of the witnesses in his pending case, each name listed with their respective address
     and date of birth, and asked Whitehead if he could “take care of them.” Understanding this to
     mean defendant wanted them killed, Whitehead gave the list to sheriff investigator McCoy.
     The investigator assigned an officer to act as a hitman and introduced both him and defendant
     over a taped phone call. Defendant asked that the undercover officer come to the jail. Once at
     the jail, the officer recorded his conversations with defendant, who gave him a list of names
     and asked that he “get rid of them.” The State sought to admit this evidence of the solicitation
     to show defendant’s consciousness of guilt.
¶6        The trial court held that the evidence of the shooting of Floyd and the evidence of the
     ballistics match admissible as proof of identity. The court also held admissible the solicitation
     of murder evidence to prove consciousness of guilt.
¶7        At trial, Marvin Floyd testified that on the date he was shot, August 23, 2010, he had
     known defendant for about three years. Floyd testified that on the afternoon of August 23,
     2010, he was riding his bike to the gas station near his home when he saw defendant at the gas


                                                 -2-
       station. He testified that he saw a gun under defendant’s pants and tried to flee on his bike but
       was shot in the back. He stated he was taken to the hospital where he stayed for two months and
       underwent two surgeries.
¶8          Corey Thompson testified that on September 8, 2010, after attending class at Bowen High
       School, he was walking home with his friends, among them DeAntonio Goss. At some point,
       Thompson and Goss reached the street corner of 86th Street and Saginaw Avenue and saw that
       defendant and his friend, Lacy Sheppard, were also there. Defendant began speaking to
       Thompson and Goss and said, “This is what y’all want, this is what y’all going to get,” and
       pulled out a gun and pointed it at Thompson. Thompson testified that he began running back
       toward school while noticing Goss running in a different direction. Thompson stated that as he
       was running he heard gunshots and then suddenly felt something hit him in his buttocks.
       Thompson stated he felt pain and fell down, but then got up to keep running before beginning
       to feel drowsy, weak, and unable to run anymore. He testified he lay down in the middle of the
       street, heard Goss say, “CJ, where are you, where are you, are you okay?” and then observed
       Defendant head toward Goss’s voice. Thompson testified he then heard a few more gunshots
       before passing out. Thompson was taken to the hospital where he stayed for three weeks and
       underwent two surgeries.
¶9          Ricky Whitehead testified that he was defendant’s cellmate at the Cook County department
       of corrections. He stated that while there, defendant gave him a list of the names of witnesses
       in defendant’s pending trial and asked if he could “take care of them.” Whitehead testified he
       understood this to mean defendant wanted them killed and subsequently gave the list to
       Investigator McCoy.
¶ 10        Eric Bucio testified that he is an instructor at the Cook County jail complex. He stated that
       on August 9, 2012, he was assigned to investigate defendant. He testified that he recovered a
       list of witness names from defendant’s personal items.
¶ 11        Hilary McElligott, an assistant medical examiner for Cook County, testified that she
       examined Goss’s body. The bullet that caused his death entered the back of his right arm,
       exited on the other side of the arm, and entered his body again on the right side of his chest.
¶ 12        Patrick Brennan, a supervisor with the Illinois State Police Forensic Science Center,
       testified that the bullet recovered from Floyd’s body, the bullet recovered from Goss, and a
       cartridge case that was found at the scene of the shooting were fired from the same firearm.
¶ 13        The State rested. Defendant did not present any evidence.
¶ 14        After hearing all of the evidence, the jury found defendant guilty of the first degree murder
       of Goss, the attempted murder of Thompson, and the aggravated battery with a firearm of
       Thompson.
¶ 15        At the sentencing hearing, the defense argued in mitigation that defendant was a juvenile
       with a troubled background, a history of mental illness and drug and alcohol abuse, and that he
       had rehabilitative potential. Defense counsel explained that defendant’s father had been
       incarcerated for much of defendant’s life. Defense counsel explained that at the age of 12,
       defendant began seeing a psychiatrist to address his anger management and was ultimately
       diagnosed with bipolar disorder for which he received medication. Moreover, counsel pointed
       out that defendant attempted suicide at the ages of 15, 17, and 18. Finally, defense counsel
       elicited the fact that defendant began drinking alcohol at the age of 11, followed shortly
       thereafter with marijuana use, and that by the age of 13 he was drinking 20 glasses of hard


                                                   -3-
       alcohol and smoking five “blunts” of marijuana every day. Defense counsel asked the trial
       court for the minimum sentence in consideration of these mitigating factors contained in
       defendant’s presentence investigation (PSI) report.
¶ 16       In allocution, defendant told the court that he did not shoot Thompson, stating that
       Sheppard did. The record then shows the trial court made the following statements. “I’ve read
       the PSI dated March 31st, I’ve considered the fact that defendant did not have the best
       upbringing, it doesn’t justify murder, however. I’ll consider it for what it was worth.” The
       court went on to say, “The other factors in aggravation and mitigation, I’ve considered all of
       them. What’s mitigating about Pharaoh Morris? Not much. At the time of the murder, 16 years
       old, that’s about all that’s mitigating.” In regards to rehabilitation, the court stated:
                    “Is there room for rehabilitation for Pharaoh Morris? That’s up to him. If he’s
               rehabilitated he’ll be inside, however. Pharaoh Morris has shown by his conduct two
               weeks before the incident, the murder of DeAntonio Goss, on the day of the incident
               ***, which was September 8, 2010, and even thereafter in the jail, I want these people
               tooken [sic] care of *** I like to read the cases, I find little words in each one of them.
               I think I found ones that apply to Pharaoh Morris. Pharaoh Morris has a malignant heart
               ***. It applies to Pharaoh Morris, it was written for him. A young guy out on the streets
               of the City of Chicago with a gun, shooting it up, hitting one guy two weeks before, two
               guys on the date of the murder, including the murder victim obviously and then I want
               these people tooken [sic] care of. Everybody in the world knows what that means,
               tooken [sic] care of.
                    There’s some times, Pharaoh, you commit a crime you pretty much forfeit your
               right to be ever out on the street again, this is one of them. Everything I give you in a
               few seconds, Mr. Morris, you earned every single day, every single minute, every
               single second. Maybe you can live a useful life in prison, however, not back on the
               streets of the City of Chicago.”
¶ 17       The trial court sentenced defendant to consecutive terms of 55 years for the first degree
       murder and 45 years for the attempted first degree murder, for a total of 100 years in prison.

¶ 18                                           ANALYSIS
¶ 19       Defendant argues that his sentence of 100 years’ imprisonment is a de facto life sentence
       and is the result of an unconstitutional sentencing scheme in violation of Miller v. Alabama,
       567 U.S. 460 (2012), as the trial court was precluded from considering his youthful
       characteristics. He also contends that the applicable sentencing statutes, which mandate
       consecutive prison terms (730 ILCS 5/5-8-4(d)(1) (West 2010)) and 25-year and 20-year
       firearm enhancements (730 ILCS 5/5-8-1(a)(1)(d)(iii), 5-8-4(c)(1)(C) (West 2010)) violate the
       eighth amendment (U.S. Const., amend. VIII) and the proportionate penalties clause (Ill.
       Const. 1970, art. I, § 11), both facially and as applied to him. He argues that the automatic
       transfer provision which automatically transfers 15- and 16-year-olds charged with first degree
       murder and aggravated battery with a firearm to adult court (705 ILCS 405/5-130(1)(a) (West
       2010)), thereby subjecting them to mandatory adult sentencing statutes, violates the eighth
       amendment, the proportionate penalties clause, and due process. Finally, he argues that he is
       entitled to a new sentencing hearing under the newly enacted section 5-4.5-105 of the Code
       (730 ILCS 5/5-4.5-105(a), (b) (West Supp. 2015)), which requires the trial court to consider


                                                    -4-
       certain factors before sentencing and gives trial courts discretion to impose firearm
       enhancements for individuals under 18.
¶ 20       Defendant, who was 16 years old at the time he committed the offenses in this case, was
       sentenced to 100 years’ imprisonment in aggregate for his convictions of first degree murder,
       attempted murder, and aggravated battery with a firearm. The statutory minimum for first
       degree murder was 45 years: 20 years for the murder and 25 years for the firearm enhancement.
       The statutory minimum for the attempted first degree murder was 26 years: 6 years for the
       underlying Class X felony and 20 years for the firearm enhancement. In total, the minimum
       prison term the trial court was required to impose was 71 years. The maximum it could impose
       was natural life: 20 to 60 years for first degree murder plus 25 years to natural life for the
       firearm enhancement and 6 to 30 years for the underlying Class X felony plus 20 years for the
       firearm enhancement. Defendant will have to serve 100% of the 55-year sentence and at least
       85% of the 45-year sentence, meaning he will serve at least 93 years and 4 months.
¶ 21       The Supreme Court held in Miller that the eighth amendment to the United States
       Constitution “forbids a sentencing scheme that mandates life in prison without the possibility
       of parole for juvenile offenders.” Miller, 567 U.S. at 479. The Court emphasized that in
       fashioning an appropriate sentence, recognition of youth is the most important consideration.
       Id. at 473. Therefore, criminal procedure laws that fail to adequately account for the offender’s
       youthfulness are flawed. Id. at 473-74. The Court explained that children, through both
       common sense and with the aid of social sciences, are constitutionally different from adults for
       purposes of sentencing. Id. at 471-72. Juveniles have diminished culpability and a greater
       prospect for reform, and therefore “they are less deserving of the most severe punishments”
       (internal quotation marks omitted) (id. at 471), which, according to Graham v. Florida, 560
       U.S. 48, 68 (2010), includes life without parole. The Court went on to say:
                “First, children have a lack of maturity and an underdeveloped sense of responsibility,
                leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second,
                children are more vulnerable . . . to negative influences and outside pressures, including
                from their family and peers; they have limited contro[l] over their own environment
                and lack the ability to extricate themselves from horrific, crime-producing settings.
                [Citation.] And third, a child’s character is not as well formed as an adult’s; his traits
                are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity].”
                (Internal quotation marks omitted.) Miller, 567 U.S. at 471.
¶ 22       The Court further emphasized the distinctive attributes of youth by emphasizing two main
       rationales behind sentencing: retribution and rehabilitation. Id. at 472-73. First, the Court
       stated that such youthful attributes diminish the justifications of imposing the harshest
       sentences on juveniles, even when they commit terrible crimes, because the retribution
       rationale is rooted in the offender’s blameworthiness, which is not as strong with children as
       with adults. Id. at 472. Second, by sentencing a juvenile to life without parole, the court is
       making a determination that the offender is simply unable to change and will forever be a
       menace to society. Id. at 472-73. But life without parole “forswears altogether the
       rehabilitative ideal,” and reflects “an irrevocable judgment about [an offender’s] value and
       place in society,” which is at odds with a child’s capacity for change. (Internal quotation marks
       omitted.) Id. at 473. Only the worst of youth, those who are deemed permanently incorrigible,
       should be considered for life without parole. Id. at 479-80. Mandatory punishment, the Court
       said, precludes consideration of youth’s “hallmark features—among them, immaturity,

                                                    -5-
       impetuosity, and failure to appreciate risks and consequences.” Id. at 477. “It prevents taking
       into account the family and home environment that surrounds him—and from which he cannot
       usually extricate himself—no matter how brutal or dysfunctional.” Id. The Court elaborated on
       Miller in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016). The Court reiterated
       Miller’s central holding that life sentences without parole for juvenile offenders pose too great
       a risk of disproportionate punishment. Id. at ___, 136 S. Ct. at 733. Miller requires the trial
       judge to account for how children are different before irrevocably sentencing them to life in
       prison, and the Court stressed that such an occasion will be uncommon. Id. at ___, 136 S. Ct. at
       733. Montgomery pointed out, however, that even if a court considers a child’s age before
       sentencing him to life without parole, it still violates the eighth amendment if the crime
       committed reflects the child’s “unfortunate yet transient immaturity.” (Internal quotation
       marks omitted.) Id. at ___, 136 S. Ct. at 734. Therefore, Montgomery held that Miller
       established a substantive rule: all juveniles must have an opportunity to prove they fall within a
       class of defendants that, because of their status as youths and their attendant circumstances,
       makes a sentence of life without parole unconstitutional. Id. at ___, 136 S. Ct. at 734. It follows
       that those sentenced to life without parole must be afforded an opportunity to show they are
       capable of change. Id. at ___, 136 S. Ct. at 736.
¶ 23       Subsequently, while this appeal was pending, our supreme court issued its most recent
       opinion addressing the Miller holding in People v. Reyes, 2016 IL 119271. In Reyes, the court
       extended the holding of Miller to apply to sentencing schemes that mandate an aggregate
       term-of-years which result in a de facto life sentence for juvenile offenders. Id. ¶ 9. The court
       found:
                   “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.
       The court held that “sentencing a juvenile offender to a mandatory term of years that is the
       functional equivalent of life without the possibility of parole constitutes cruel and unusual
       punishment in violation of the eighth amendment.” Id. In order for a court to impose a lengthy
       sentence, judicial discretion must be applied. Id.
¶ 24       Since Montgomery and Reyes, this court has extended relief to juvenile defendants where
       the record affirmatively showed that the trial court failed to consider such factors before
       imposing a discretionary sentence of natural life without the possibility of parole in People v.
       Nieto, 2016 IL App (1st) 121604, and People v. Ortiz, 2016 IL App (1st) 133294.
¶ 25       In Nieto, 2016 IL App (1st) 121604, this court determined that under Montgomery, Miller’s
       prohibition against mandatory life sentences without parole for juveniles also applies to
       discretionary life sentences without parole. Nieto was convicted of first degree murder and
       aggravated battery with a firearm. Id. ¶ 4. Though the defendant’s statutory minimum sentence
       was 51 years, the trial court chose to sentence defendant to 78 years, 75.3 of which he would be
       required to serve. Id. ¶¶ 12-13. The Nieto court recognized that Montgomery did not
       distinguish mandatory life sentences without parole from discretionary de facto life sentences
       and took this to mean that the trial court must consider a juvenile’s special characteristics even
       when exercising discretion. Id. ¶¶ 46, 49. “After Montgomery, Miller requires that a juvenile

                                                    -6-
       be given an opportunity to demonstrate that he belongs to the large population of juveniles not
       subject to natural life in prison without parole, even where his life sentence resulted from the
       trial court’s exercise of discretion.” Id. ¶ 47.
¶ 26        We concluded that because the defendant would not be released from prison until he is 94
       years old, he effectively received a natural life sentence without parole. Id. ¶ 42. Although the
       trial court did consider the defendant’s young age when imposing sentence, we nonetheless
       vacated the defendant’s sentence because the trial court did not consider the corresponding
       characteristics of the defendant’s youth. Id. ¶ 56.
¶ 27        In People v. Ortiz, 2016 IL App (1st) 133294, the defendant committed first degree murder
       at age 15 and was sentenced to 60 years’ imprisonment and would be required to serve 100%
       of his sentence. Id. ¶ 24. The record showed that at the sentencing hearing, the trial court
       recognized defendant had a “difficult upbringing” and that his parents “allowed” him to quit
       school and associate himself freely with the Latin King gang. (Internal quotation marks
       omitted.) Id. However, the trial court placed more emphasis on defendant’s lack of remorse,
       continued violence while incarcerated, and knowledge of wrongdoing and told defendant that
       he must be held accountable and pay the price by being incarcerated.
¶ 28        We determined that since the defendant would not be eligible for release until the age of 75
       years old, he effectively received a life sentence without parole and adopted Nieto’s analysis to
       hold that “for a juvenile’s mandatory or discretionary sentence of life in prison without parole
       to be constitutionally valid, the sentencing judge must take into consideration his youth and
       attendant characteristics to determine whether the defendant is the rarest of juvenile offenders
       *** whose crimes reflect permanent incorrigibility” or whether his crimes reflect “unfortunate
       yet transient immaturity.” (Internal quotation marks omitted.) Id. ¶¶ 19, 23. In vacating the
       defendant’s sentence, we noted that while the trial court did consider defendant’s young age
       and his personal history, it did not consider the corresponding characteristics of his youth as
       outlined in Miller and Montgomery or their effect on his conduct. Id. ¶ 25.
¶ 29        We also found support for our holding from the legislature’s recent enactment of section
       5-4.5-105 of the Code (Pub. Act 99-69 (eff. Jan. 1, 2016)), which provides that for all
       defendants who commit crimes under the age of 18 on or after January 1, 2016, the court must
       consider various attendant-youth characteristics before sentencing. 730 ILCS
       5/5-4.5-105(a)(1)-(a)(3) (West Supp. 2015); Ortiz, 2016 IL App (1st) 133294, ¶ 23. The
       characteristics to be considered include impetuosity; level of maturity; the ability to consider
       risks and consequences; whether they were subjected to outside pressures; their home
       environment; and any history of parental neglect, physical abuse, or other childhood trauma.
       730 ILCS 5/5-4.5-105(a)(1)-(a)(3) (West Supp. 2015); Ortiz, 2016 IL App (1st) 133294, ¶ 23.
¶ 30        Here, the juvenile defendant’s statutorily mandated minimum sentence was 71 years for his
       crimes. The trial court instead sentenced defendant to 55 years in prison for first degree murder
       and 45 years in prison for the attempted murder, both to be served consecutively for an
       aggregate of 100 years’ imprisonment. Defendant is required to serve 93.25 years of this
       sentence, meaning the earliest he is eligible for release will be at the age of 109 years. Using
       the rationale in Nieto and Ortiz, we find that defendant has received the functional equivalent
       of an effective life sentence without parole. This de facto life sentence is improper because the
       trial court did not meaningfully consider defendant’s youth and attendant characteristics, as
       well as their effect on him, as outlined in Miller and Montgomery, before sentencing him.


                                                   -7-
¶ 31       The record reveals that defendant had a troubled background, a history of mental illness,
       and a history of drug and alcohol abuse. Defendant’s PSI report showed defendant’s father was
       incarcerated in Wisconsin; that, at the age of 12, defendant began seeing a psychiatrist to
       address anger management, for which he was diagnosed with bipolar disorder and received
       medication; and that defendant attempted suicide at the ages of 15, 17, and 18. The PSI report
       also indicated that at the age of 11, defendant began drinking alcohol and, shortly thereafter,
       began using marijuana. By the age of 13, defendant was drinking multiple glasses of hard
       alcohol a day and smoking multiple “blunts” of marijuana.
¶ 32       Looking at the record in its entirety, we are not convinced that the trial court adequately
       considered defendant’s youth and attendant circumstances before sentencing him to an
       effective life sentence, which, following Miller, is reserved only after the rare finding of
       permanent incorrigibility. Although the trial court commented on defendant’s youth and
       upbringing (“What’s mitigating about Pharoah Morris? Not much. At the time of the murder,
       16 years old, that’s about all that’s mitigating.”) and acknowledged that it read defendant’s PSI
       (“I’ve read the PSI dated March 31st, I’ve considered the fact that Defendant did not have the
       best upbringing.”) we do not find these observations to be the equivalent to a full consideration
       of those special characteristics contained within the PSI report. The trial court weighed heavily
       on defendant’s prior conduct. We do not doubt the trial court when it said, “I’ve been doing
       this, December was 25 years. I can’t recall a case as horrible as this one. Shoot one guy, weeks
       later shoot two guys, kill one and try and get the witnesses killed so you get a chance to go
       home.” However, the trial court did not weigh heavily defendant’s opportunity for
       rehabilitation: “Is there room for rehabilitation for Pharoah Morris? That’s up to him. If he’s
       rehabilitated he’ll be inside, however.” It went on to say, “There’s some times, Pharoah, you
       commit a crime you pretty much forfeit your right to be ever out on the street again, this is one
       of them ***. Maybe you can live a useful life in prison, however, not back on the streets of the
       City of Chicago.” It is not apparent from the record that the trial court carefully considered
       defendant’s youthful characteristics against those aggravating factors before coming to the
       ultimate conclusion that defendant is “the rarest of juvenile offenders *** whose crimes reflect
       permanent incorrigibility,” rather than a reflection of his “unfortunate yet transient
       immaturity.” (Internal quotation marks omitted.) Montgomery, 577 U.S. at ___, 136 S. Ct. at
       734.
¶ 33       By sentencing defendant to 100 years in prison, the trial court made the ultimate decision
       that defendant, at the age of 16, was permanently incapable of change. Included in this
       sentence were mandatory sentencing enhancements of 45 years. And the trial court believed
       that this sentence will “deter[ ] others from hopefully doing the same.” However, pursuant to
       Montgomery, deterrence is diminished in juvenile sentencing because juveniles’ recklessness,
       immaturity, and impetuosity make them less likely to consider possible punishment. Id. at ___,
       136 S. Ct. at 726. The trial court stated, “Pharoah Morris has a malignant heart. I like that
       phrase, a malignant heart. It applies to Pharoah Morris, it was written for him.” Miller did not
       foreclose a severe sentence for a juvenile “whose crime reflects irreparable corruption,” and
       the Court noted that “appropriate occasions for sentencing juveniles to this harshest possible
       penalty will be uncommon.” Miller, 567 U.S. at 479-80. Whether this is such an uncommon
       case will be determined at a resentencing hearing conducted in accordance with the ruling in
       this case. Accordingly, we vacate defendant’s unconstitutional sentence and remand for
       resentencing.


                                                   -8-
¶ 34       Because the defendant will have the benefit of a new sentencing hearing we need to address
       whether he will be sentenced under the provisions of Public Act 99-69 (eff. Jan 1, 2016)
       (adding 730 ILCS 5/5-4.5-105) and Public Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS
       405/5-130, 5-805). While defendant’s case was pending on direct appeal, the legislature passed
       Public Act 99-69 (eff. Jan. 1, 2016). Section 5-4.5-105 of the Code now requires the sentencing
       judge to consider multiple youthful mitigation factors and gives the judge the discretion to
       decline imposition of the aggregate 45 years of mandatory firearm enhancements that were
       imposed as part of defendants 100-year sentence. The parties were granted leave to file
       supplemental briefs on the issue of the applicability of the newly enacted section 5-4.5-105 of
       the Code at resentencing.
¶ 35       In his supplemental brief, defendant contends that his case must be remanded for
       resentencing under the new sentencing provisions contained in section 5-4.5-105 of the Code.
       In its supplemental brief, the State argues that section 5-4.5-105 of the Code does not apply
       retroactively because the plain language of section 5-4.5-105 of the Code clearly indicates the
       legislature intended prospective application only.
¶ 36       Section 5-4.5-105 of the Code provides
                   “(a) On or after the effective date of this amendatory Act of the 99th General
               Assembly, when a person commits an offense and the person is under 18 years of age at
               the time of the commission of the offense, the court, at the sentencing hearing
               conducted under Section 5-4-1, shall consider the following additional factors in
               mitigation in determining the appropriate sentence:
                       (1) the person’s age, impetuosity, and level of maturity at the time of the
                   offense, including the ability to consider risks and consequences of behavior, and
                   the presence of cognitive or developmental disability, or both, if any;
                       (2) whether the person was subjected to outside pressure, including peer
                   pressure, familial pressure, or negative influences;
                       (3) the person’s family, home environment, educational and social background,
                   including any history of parental neglect, physical abuse, or other childhood
                   trauma;
                       (4) the person’s potential for rehabilitation or evidence of rehabilitation, or
                   both;
                       (5) the circumstances of the offense;
                       (6) the person’s degree of participation and specific role in the offense,
                   including the level of planning by the defendant before the offense;
                       (7) whether the person was able to meaningfully participate in his or her
                   defense;
                       (8) the person’s prior juvenile or criminal history; and
                       (9) any other information the court finds relevant and reliable, including an
                   expression of remorse, if appropriate. However, if the person, on advice of counsel
                   chooses not to make a statement, the court shall not consider a lack of an expression
                   of remorse as an aggravating factor.” 730 ILCS 5/5-4.5-105 (West Supp. 2015).
       Additionally, sections 5-4.5-105(b) and 5-4.5-105(c) of the Code provide that, except in cases
       where the offender has been convicted of certain homicide offenses that are inapplicable here,
       the trial court “may, in its discretion, decline to impose any otherwise applicable sentencing

                                                   -9-
       enhancement based upon firearm possession.” 730 ILCS 5/5-4.5-105(b), (c) (West Supp.
       2015).
¶ 37       Subsequently, our supreme court decided People v. Reyes, 2016 IL 119271. In Reyes, the
       defendant was 16 years of age at the time of the offense. Our supreme court vacated
       defendant’s de facto life sentence as “unconstitutional pursuant to Miller.” Id. ¶ 10. Ordering a
       resentencing hearing, the Reyes court agreed with both the defendant and the State that the
       resentencing hearing would be subject to the provisions of section 5-4.5-105. Id. ¶ 14. The
       court noted that because section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2014)) entitles
       a defendant “ ‘to be sentenced under either the law in effect at the time the offense was
       committed or that in effect at the time of sentencing,’ ” the proper remedy was to remand for
       resentencing under section 5-4.5-105(b) of the Code. Reyes, 2016 IL 119271, ¶ 12. The court
       further agreed with both the defendant and the State that “by applying this new sentencing
       scheme, the circuit court will have the discretion not to apply the firearm sentencing
       enhancements and, without these enhancements, the mandatory minimum aggregate sentence
       to which defendant would be subject is 32 years, a term that is not a de facto life sentence.”
       (Emphasis in original.) Id. The court remanded to the trial court with directions that a new
       sentencing hearing be held in accordance with section 5-4.5-105 “[b]ecause defendant would
       not be subject to a mandatory, life-without-parole sentence under section 5-4.5-105.” Id.
       Following Reyes, we remand for resentencing under section 5-4.5-105 of the Code.
       Accordingly, the circuit court will have the discretion to apply or decline to apply the
       mandatory firearm sentencing enhancements applicable in this case.
¶ 38       Because we have ordered a resentencing hearing in accordance with section 5-4.5-105 of
       the Code, we need not consider defendant’s argument that the 20-year and 25-year firearm
       enhancements violate the federal and Illinois constitutions, and the proportionate penalties
       clause of the Illinois Constitution as applied to defendant because they did not permit the trial
       court to consider his young age at the time of the offense.
¶ 39       We emphasize that we are not critical of the trial court’s observations made at sentencing
       after it had the benefit of hearing the evidence of the defendant’s conduct and the
       circumstances giving rise to his conviction. Our decision should not be taken as any indication
       of our position as to the appropriate sentence, and this decision should not be interpreted as a
       limitation on the discretion given to the sentencing judge when imposing the sentence it deems
       appropriate after consideration of all of the sentencing factors discussed previously.
¶ 40       Finally, defendant argues that the version of section 5-130(1)(a) of the Act which was in
       effect at the time he committed the offenses, which automatically transfers 15- and
       16-year-olds charged with murder and attempted murder to adult court, violates the eighth
       amendment, the proportionate penalties clause of the Illinois Constitution, and federal and
       state due process rights.
¶ 41       Defendant recognizes that our supreme court upheld the constitutionality of the Illinois
       automatic transfer provision under the eighth amendment and due process clauses of the
       federal constitutional and the proportionate penalties clause of the Illinois Constitution in
       People v. Patterson, 2014 IL 115102. He argues however, that Patterson was incorrectly
       decided on the question of whether automatic transfer to adult court is punishment within the
       meaning of federal and state constitutional prohibitions on cruel and unusual punishment.
¶ 42       We find no reason to depart from the holding in Patterson. “As an intermediate appellate
       court, we are bound to honor our supreme court’s conclusion on this issue unless and until that

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       conclusion is revisited by our supreme court or overruled by the United States Supreme
       Court.” People v. Fountain, 2012 IL App (3d) 090558, ¶ 23.

¶ 43                                       CONCLUSION
¶ 44       We hold that defendant was given a de facto life sentence without meaningful
       consideration of his youth and attendant characteristics, as well as their effect on him.
       Accordingly, the cause is remanded to the circuit court for resentencing in accordance with
       section 5-4.5-105 of the Code (730 ILCS 5/5-4.5-105 (West Supp. 2015)).

¶ 45      Remanded for resentencing.




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