                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Williams, 2012 IL App (1st) 111145




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



District & No.              First District, Second Division
                            Docket Nos. 1-11-1145, 1-11-2251 cons.


Opinion filed               November 27, 2012
Opinion withdrawn           December 11, 2012
Modified opinion filed      December 12, 2012


Held                        The dismissal of defendant’s third and fourth successive postconviction
(Note: This syllabus        petitions was reversed and the cause was remanded for a determination
constitutes no part of      of whether defendant was entitled to a new hearing pursuant to his claim
the opinion of the court    of actual innocence in his third petition, and if a new hearing is denied,
but has been prepared       the trial court is directed to hold a new sentencing hearing pursuant to the
by the Reporter of          fourth petition, which alleged that the mandatory life sentence without
Decisions for the           parole imposed for an offense committed when he was a juvenile violated
convenience of the          the eighth amendment.
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 94-CR-4431-04; the
Review                      Hon. Angela Munari Petrone, Judge, presiding.


Judgment                    Reversed and cause remanded.
Counsel on                 Michael L. Sklar, P.C. (Michael L. Sklar, of counsel), and Ungaretti &
Appeal                     Harris LLP (John Ruskusky, Timothy E. Horton, Maura M. McIntyre, and
                           Brittany A. Smith, of counsel), both of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Michelle Katz, William L. Tofenetti, and Mary P. Needham, Assistant
                           State’s Attorneys, of counsel), for the People.



Panel                      PRESIDING JUSTICE HARRIS delivered the judgment of the court,
                           with opinion.
                           Justices Quinn and Connors concurred in the judgment and opinion.



                                             OPINION

¶1          Here we are called upon to determine whether the denial of defendant Carl Williams’
        petition for an evidentiary hearing to show actual innocence should be reversed. We are also
        required to determine whether the United States Supreme Court’s holding in Miller v.
        Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), prohibiting mandatory life-without-parole
        sentences for juveniles should be retroactively applied. We answer yes to both issues.
¶2          Defendant appeals the dismissal of two of his successive petitions (third and fourth
        petitions) for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
        (West 2010)). In his third petition, which the circuit court reviewed as a second-stage
        proceeding under the Act, defendant made a claim of actual innocence, and claimed that the
        State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),
        and that he was arrested without probable cause. The circuit court granted the State’s motion
        to dismiss his third petition. In his motion for leave to file his fourth petition, defendant
        alleged that his mandatory life sentence is unconstitutional. The circuit court denied him
        leave to file his fourth petition. At issue is whether defendant has made a substantial showing
        that his constitutional rights have been violated such that he is entitled to an evidentiary
        hearing on his claims in his third petition; and whether defendant has satisfied the cause-and-
        prejudice requirements codified under section 122-1(f) of the Act such that the circuit court
        erred in denying his motion for leave to file his fourth petition challenging his sentence. 725
        ILCS 5/122-1(f) (West 2010).

¶3                                       JURISDICTION
¶4          On March 15, 2011, the circuit court granted the State’s motion to dismiss defendant’s
        third petition. Defendant timely appealed on April 12, 2011. On that same day, defendant


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     sought leave from the circuit court to file his fourth petition, which sought to modify his
     sentence. On June 28, 2011, the circuit court denied defendant leave to file his fourth
     petition. Defendant timely appealed on July 28, 2011. Accordingly, this court has jurisdiction
     pursuant to Illinois Supreme Court Rules 602, 606(a), and 651. Ill. S. Ct. R. 602 (eff. May
     30, 2008); R. 606 (eff. Mar. 20, 2009); R. 651 (eff. Apr. 26, 2012). On August 30, 2011, this
     court granted defendant’s motion to consolidate the appeals under case number 1-11-1145.

¶5                                      BACKGROUND
¶6        All pertinent factual background concerning defendant’s trial and initial appeal is well
     stated in this court’s 1999 opinion. People v. Williams, 305 Ill. App. 3d 517 (1999). Pertinent
     factual background concerning defendant’s first three postconviction petitions is well stated
     in this court’s 2009 opinion. People v. Williams, 392 Ill. App. 3d 359 (2009). Below, we will
     discuss relevant facts from defendant’s third petition and from this court’s 2009 opinion.

¶7                                  Defendant’s Third Petition
¶8       In January of 2008, defendant, represented by counsel, filed a motion for leave to file his
     third petition. In his third petition, based on new affidavits and facts he obtained, he argued
     he should be granted leave to file his petition in order to prevent a fundamental miscarriage
     of justice based on his actual innocence. Specifically, he argued that the newly discovered
     evidence, i.e., the descriptions of the alleged fifth perpetrator provided by his codefendants
     in their affidavits, combined with his ex-girlfriend Tameka Johnson’s affidavit which
     provided an alibi for defendant, supported his claim of actual innocence. He also argued that
     the State withheld exculpatory evidence from him in violation of his right to due process
     under Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing statements favorable to him
     from three out of his four codefendants,1 and that there was insufficient factual justification
     to support probable cause for his warrantless arrest. Defendant alleged he was not able to
     discover the new evidence sooner because he was hampered by the difficulties of
     communicating between prisons, by his codefendants’ and his ex-girlfriend’s refusals to help
     him, and because the witness who told the police about defendant’s whereabouts, Clinton
     Taylor, gave the police an alias, i.e., Larry McGee. To support his petition, defendant
     attached the affidavits of his codefendants Zarice Johnson, Stanley Hamelin, and Scott
     Chambers; his attorney at trial, Stephen Richards; and his ex-girlfriend Tameka Johnson; his
     own affidavit; an identity sheet from the Illinois Department of Corrections (IDOC); an
     affidavit showing his attempts to secure the newly discovered evidence; and the unpublished
     order denying his second petition.2
¶9       Codefendant Johnson attested that there were four other perpetrators besides himself


            1
              According to defendant’s third petition, his fourth codefendant, Anthony Brown, refused
     to provide defendant assistance because he is pursuing his own actual innocence claim.
            2
                People v. Williams, No. 1-04-2153 (2006) (unpublished order under Supreme Court Rule
     23).

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       involved in the crime for which he was convicted; Hamelin, Brown, Chambers, and a person
       that he did not know (hereinafter, the fifth person). At the time of the incident, he sat next
       to the fifth person in the backseat of Brown’s car for approximately an hour or two. He
       described the fifth person’s appearance as “very dark skinned, wore a full untrimmed beard,
       was of slim athletic build and over six feet in height.” He remembered the fifth perpetrator’s
       height because “he had much difficulty getting his large body out of the back seat of the ***
       car” and that “[o]nce out of the car his frame was much taller than I would have stood and
       I’m 5’9”.” Once Johnson was arrested, he was separated from his codefendants and “left in
       a dark room for what seemed like several hours.” He was shown photographs by the police
       of the other perpetrator. He identified Hamelin, Brown, and Chambers, but was unable to
       identify the photograph of the alleged fifth perpetrator. Johnson attested, “I repeatedly told
       the interrogating detectives that the person in the remaining photo was not the tall, dark
       skinned, bearded man that sat next to me in Brown’s car,” and that he did not know the
       person in the photograph. The police “insisted” he was wrong and told him that Hamelin and
       Chambers had identified the fifth perpetrator as the person shown in the photograph. Johnson
       also attested that the police hit and slapped him, and at one point hit him with a telephone
       book. Johnson agreed to sign a confession implicating the alleged fifth perpetrator to end the
       physical abuse from the police and to protect himself. He insisted that the police did not have
       the correct fifth perpetrator, but the police and assistant State’s Attorney (ASA) told him “it
       didn’t matter because the others had identified him.” Johnson also attested that he did not
       know who “Larry McGee” was, and he was not in the car with him when he was arrested.
¶ 10        Johnson acknowledged that he did receive communications from defendant asking for
       help, but did not respond “because I didn’t want to open up this very painful chapter in my
       life and I was very bitter about what happened to me.” He also doubted that he would be able
       to help or that defendant’s efforts would be successful. He did not agree to help defendant
       until he met defendant’s brother in prison “[s]ometime in 2001 or 2002.” Defendant’s brother
       was released, but he did not hear from defendant “for another year or so.” He “didn’t respond
       for the same reasons as before.” A friend of defendant’s eventually contacted him in “early
       2006.” Johnson informed her that he would not help defendant unless a “professional person”
       became involved.
¶ 11        Hamelin, in his affidavit, attested that he does not know defendant. The first time he saw
       defendant was when the police showed him a photograph. He attested that he told the police
       that he did not know the person in the photograph shown to him. He further stated that the
       police coerced him into identifying defendant as the fifth perpetrator with threats and
       physical beatings. Hamelin also attested that the police told him that his accomplices had also
       identified defendant as the fifth perpetrator. He only agreed to implicate defendant to stop
       the police from physically abusing him further. Hamelin attested that he described the fifth
       perpetrator to the police as “a very light skinned man with very long hair who was tall around
       6’1-6’3 in height.” However, he was told by the police “to forget that and agree that it was
       [defendant].”
¶ 12        Chambers, in his affidavit, attested that he also did not know the fifth perpetrator. He
       only knew that the fifth perpetrator was a friend of Brown’s, “who was called ‘Carl’ by
       Brown.” Chambers attested that in the statement he gave to Detective Winstead, he

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       “described this ‘Carl’ from my memory as about 6 foot 1 to 6 foot 3 in height, light skinned
       and with very long hair reaching down to his shoulders.” Chambers attested that the police
       provided him with a photograph of the person whom they thought was the fifth perpetrator.
       Later he viewed the alleged fifth perpetrator in person. Chambers told the police that the
       person shown to him in the photograph and in person was not the “ ‘Carl’ ” that he described
       to them. The police then “tried to convince” Chambers that the person in the photograph was
       the fifth perpetrator. Chambers only agreed to identify defendant as the “ ‘Carl’ ” he
       described as the fifth perpetrator because Detective Turner had told him that his codefendants
       had already identified defendant and he hoped for special treatment for cooperating. He also
       attested that he was instructed by Detective Turner not to describe defendant physically when
       confessing to the ASA. Chambers attested that he had “spent time together” with defendant
       at Cook County jail while they awaited trial. In his affidavit, he stated “I told [defendant] at
       that time I felt very badly about falsely identifying him to Detective Turner. I told him that
       I would try to help him later.” He acknowledged that defendant contacted him while he was
       in prison but attested that “[b]ecause I was moving around so much that I wasn’t thinking
       much about [defendant] and his problems and I did not respond” to defendant’s letters.
¶ 13        Stephen Richards, defendant’s attorney at trial, attested that he was never advised at the
       time of trial that defendant’s codefendants stated to the police that defendant was not
       involved in the crimes or that their descriptions of the fifth perpetrator were at odds with
       defendant’s appearance. According to Richards, had he known this information at the time
       of trial, it “is reasonably likely to have changed the outcome of the trial.” Richards
       acknowledged that defendant’s codefendants would most likely have asserted their fifth
       amendment rights and would not have been available as witnesses, but had he known about
       their statements to the police, he would have introduced them at trial. Had Taylor/McGee’s
       identity been known to him, he would have obtained a statement from him and “together
       with the withheld new evidence from Chambers, Hamelin, and Johnson, [would] have argued
       more forcibly that [defendant’s] warrantless arrest was unlawful.” He would have also called
       Taylor/McGee to testify to show that the police had arrested the wrong person. The police
       provided him with no evidence that could have helped him locate the informant.
¶ 14        Tameka Johnson, defendant’s former girlfriend, attested that she was with defendant
       caring for defendant’s mother from the afternoon of January 11, 1994, until the afternoon of
       January 13, 1994. She stated that “[e]arly in the evening of Thursday, January 13th, in my
       presence, [defendant] called Erica Wells, another one of [defendant’s] friends, at her
       mother’s home. *** [Defendant] drove me back to my mother’s house after which I assume
       he visited Erica Wells.” She did not disclose this information earlier because her mother
       insisted she not do it for fear that she would be implicated in the crime. Although defendant
       had contacted her over the years to aid him, she refused because of her age and her mother’s
       instructions. She also lost contact with defendant because she did not have a telephone or a
       “means of transportation.” Defendant continued to contact her for aid but she refused because
       she was busy raising her children, and she feared being “held accountable for not disclosing
       important evidence.” She was also in debt and unemployed and spent eight months in
       custody and “didn’t want to have anything more to do with the police and the courts.”
¶ 15        Clinton Taylor, a/k/a Larry McGee, attested that he was arrested with Brown, Johnson,

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       and another person. He told the police his name was Larry McGee. He was unaware of the
       crime in question. Taylor saw Brown being physically beaten by the police. He observed
       Johnson in a “disheveled condition.” The police asked him where Carl could be found, but
       did not tell him why he had been arrested or why they were looking for Carl. The police
       threatened him and told him that if he did not lead them to Carl, he would be implicated or
       charged for the crimes committed by Brown and Johnson. They told him they would let him
       go if he led them to Carl. The only Carl he knew in the neighborhood was defendant. He
       attested that he led the police to defendant “to avoid being caught up in what was going on
       and to avoid the beating that I saw Brown receive.” He told the police he had no idea whether
       or not defendant had any involvement in the crime. The police testimony confirmed this.
       Shortly after defendant’s arrest, he moved away from the neighborhood. A few months later,
       he moved to Iowa and used his given name, Clinton Taylor.
¶ 16       Defendant attached his IDOC record, a copy of his arrest mug shot, and his own affidavit.
       His IDOC record shows that as of December 26, 2006, he weighed 174 pounds and was 5
       feet, 9 inches tall. Defendant attested that his codefendants “are the principle sources of
       evidence to exonerate me” and that “the only time I saw my co-defendants were brief passing
       glances in the police station at the time of our arrest in January, 1994.” He did not know his
       codefendants. He attested that he had made continuous efforts since his conviction to
       establish his innocence. He stated, “my efforts to contact [codefendants] were repeatedly
       frustrated by the prison system ***, my inability to obtain professional help despite great
       efforts, and by the refusal and reluctance of my co-defendants to respond to my efforts once
       I made contact with them.” Defendant then described in detail his numerous efforts to contact
       Chambers, Hamelin, and Johnson. He stated that when he eventually prepared an affidavit
       for Chambers, Chambers refused because of “his concern about his own pending post-
       conviction petition which he did not want to put in jeopardy.” Defendant attested that he had
       difficulty locating Johnson because Johnson had been transferred amongst several prisons.
       He attached a document that logged his numerous attempts to secure professional
       representation and his attempts to contact his codefendants. He attested that before giving
       his confession, he was physically abused by Detective Turner. He was also subject to verbal
       abuse. He only agreed to sign his statement to the police because he feared for his safety.

¶ 17                                         2009 Opinion
¶ 18       This court, in defendant’s 2009 appeal from the circuit court’s denial of his petition for
       leave to file his third petition, held that defendant made a claim of actual innocence based
       on newly discovered evidence that was noncumulative and material and could potentially
       change the result upon retrial. Williams, 392 Ill. App. 3d at 369-70. Specifically, the
       affidavits of Zarice Johnson and Taylor/McGee were new, in that “both *** were involved
       in the crimes and were not heard from before.” Id. at 369. In regard to materiality, this court
       held “the attestations of Johnson and Taylor[/McGee] that defendant was not the fifth
       participant in the crimes and that they identified defendant as the fifth offender under
       pressure from police are clearly material and have the potential to change the result on
       retrial.” Id. This court held that Johnson’s and Taylor’s affidavits were not cumulative but,
       rather, “lend credence to Chambers’ and Hamelin’s similar affidavits stating that they were

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       pressured to wrongly identify defendant.” Id. at 369-70. This court rejected the State’s
       argument that res judicata and collateral estoppel barred defendant’s allegations. Id. at 368.
       In conclusion, this court held that “given the pro se status of defendant in his initial two
       postconviction petitions, the gravity of the offenses in this case and the affidavits attesting
       to defendant’s actual innocence, fundamental fairness requires that defendant’s
       postconviction claims receive full consideration on their merits.” Id. at 371. Accordingly, the
       matter was remanded for second-stage proceedings under sections 122-4 through 122-6 of
       the Post-Conviction Hearing Act (725 ILCS 5/122-4 to 122-6 (West 2006)). Id.

¶ 19                    Remand Proceedings on Defendant’s Third Petition
¶ 20        On remand, defendant sought and the circuit court allowed him to supplement the
       affidavits of Zarice Johnson, Stanley Hamelin, Clinton Taylor, Stephen Richards, and
       himself with statements regarding their willingness to testify in support of defendant’s
       petition and waive their rights against self-incrimination. Identical affidavits were then
       provided from Zarice Johnson, Stanley Hamelin, Clinton Taylor, Stephen Richards, and
       defendant.
¶ 21        On June 29, 2010, the State filed a motion to dismiss defendant’s third petition in which
       it argued that defendant failed to meet the requirements of the cause-and-prejudice test by
       presenting evidence that could have been presented earlier; that defendant’s actual innocence
       claim is not based upon new evidence; that defendant failed to meet the requirements of
       Brady; that defendant’s claim of actual innocence is not freestanding; and that defendant’s
       attempt to relitigate his motion to suppress is barred by waiver and res judicata. Defendant
       responded that the State’ s motion ignored the rulings of this court and that the State’s
       motion failed to deal with the question before the court, i.e., whether defendant has shown
       “one or more substantial claims of constitutional infirmity in his arrest, interrogation, or trial
       that entitle him to a third stage hearing on those claims.” Defendant asserted that he did show
       that his constitutional claims were substantial and, thus, he was entitled to proceed to a third-
       stage evidentiary hearing on his petition.
¶ 22        After briefing and argument, the circuit court granted the State’s motion to dismiss
       defendant’s third petition. The circuit court found that the affidavits of Stanley Hamelin,
       Zarice Johnson, and Scott Chambers were not from new witnesses that had new information.
       Rather, the affiants were known to defendant at the time of his trial and awaited trial in the
       same Cook County jail. The circuit court noted that Chambers and Hamelin also gave
       affidavits in defendant’s previous postconviction petition. The circuit court stressed that none
       of defendant’s codefendants in their respective affidavits “identify the availability of the
       alleged evidence because in none of them does a co-defendant affirmatively aver that he
       would have waived his right against self-incrimination and testified as to the contents of the
       affidavits at [defendant’s] trial.” The circuit court found that Taylor/McGee’s affidavit could
       have been discovered sooner through due diligence as he was known to and was a friend of
       defendant. The court stated that “[i]t appears that [defendant] made a strategic decision not
       to call McGee at trial so petitioner could argue that McGee, and not [defendant], was the fifth
       offender.”


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¶ 23       In regard to the issue of the police having probable cause to arrest defendant, the court
       found the issue had previously been ruled upon and, thus, was waived under the doctrine of
       res judicata. The circuit court found that the information in Tameka Johnson’s affidavit
       could also have been known to defendant, as she was his former girlfriend and “[h]er alibi
       testimony would have been known to [defendant] at the time of trial.” As to defendant’s
       Brady claim, that the State intentionally withheld evidence of misidentification of him by
       codefendant Scott Chambers, the circuit court found this information not to be newly
       discovered because Scott Chambers, in his affidavit, told defendant while they were both
       awaiting trial that he falsely identified him to the police.
¶ 24       The circuit court also noted that “Zarice Johnson, Scott Chamber, and Stanley Hamelin
       contradict themselves regarding purported descriptions of the fifth offender given to police.
       Zarice Johnson described him as very dark skinned with a full, untrimmed beard, Stanley
       Hamelin described him as very light skinned with very long hair, and Scott Chambers
       described him as light skinned with very long hair reaching down to his shoulders.” The
       court found that “[t]heir contradictory affidavits give no credence to the notion that their
       testimony would be of such conclusive character as to probably change the results upon
       retrial.”
¶ 25       The circuit court addressed defendant’s allegations of police abuse toward him by finding
       them waived because they were already made in his motion to suppress statements. The court
       then explained defendant’s confession, which it found “contained details only an attacker
       would know.” The court concluded that it “did not find that the affidavits contain evidence
       that is material, noncumulative, and could not have been discovered sooner through due
       diligence. The evidence is not newly discovered, nor of such conclusive character that it
       would probably change the result on retrial. There has been no showing of a violation of
       petitioner’s constitutional rights.” Defendant timely appealed on April 12, 2011.

¶ 26                                Defendant’s Fourth Petition
¶ 27       Also on April 12, 2011, defendant filed a motion for leave to file another successive
       postconviction petition (fourth petition). In his fourth petition, defendant argued that based
       on the Supreme Court’s decision in Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011
       (2010), “a sentence of life imprisonment without parole for a non-capital crime committed
       by a minor was a ‘cruel and unusual punishment’ and violated the 8th amendment to the
       Constitution.” Defendant cited factors to consider in favor of reducing his sentence,
       including that he was 17 years old at the time of the offenses, he was convicted on a theory
       of accountability, and that “if involved at all, [he was not] present when the double murders
       which invoked the mandatory life sentence were committed later in the crime spree.”
¶ 28       On June 28, 2011, the circuit court denied defendant leave to file his fourth petition and
       assessed fees and costs for filing a frivolous pleading. In its written order, the circuit court
       found Graham distinguishable and that defendant did not meet the cause-and-prejudice test.
       The court also assessed defendant fees and costs, finding defendant’s claim was “frivolous
       and patently without merit.”
¶ 29       Defendant timely appealed on July 28, 2011. On August 30, 2011, this court granted

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       defendant’s motion to consolidate both of defendant’s appeals under case number 1-11-1145.
¶ 30       After the parties filed their respective briefs, the Supreme Court issued its opinion in
       Miller v. Alabama, in which it held a “mandatory life [sentence] without parole for those
       under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition
       on ‘cruel and unusual punishments.’ ” Miller v. Alabama, 567 U.S. at ___, 132 S. Ct. at
       2460. Subsequently, defendant filed a motion for leave to submit supplemental authority,
       arguing that Miller has a direct impact on his fourth petition currently before this court.
       Defendant pointed out that in his fourth petition, he, like the majority opinion in Miller,
       principally relied upon the Supreme Court’s prior holdings in Roper v. Simmons, 543 U.S.
       551 (2005), and Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011, in making his argument
       that juvenile offenders are less culpable and, thus, less deserving of the harshest punishment
       than adult offenders. We granted defendant’s motion, but allowed the State to file a response.
¶ 31       In response, the State argued that Miller “does not categorically prohibit life sentences
       for juveniles, but rather requires a particular procedure before it may be imposed.”
       (Emphasis in original.) The State argued the circuit court, when sentencing defendant, used
       the proper procedure in this case by considering both evidence in aggravation and mitigation,
       defendant’s age, and his allocation before exercising its discretion in sentencing defendant
       to life in prison without parole. The State argued further the rule expounded in Miller is
       procedural and not applicable to final convictions such as this one. Accordingly, the State
       argued that Miller cannot be applied retroactively.
¶ 32       We allowed defendant to file a reply to the State’s response. In reply, defendant pointed
       out that he was 17 years old at the time the crimes occurred, and he was sentenced to life in
       prison without the possibility of parole. He alleged that the statute he was sentenced under
       provided for a mandatory sentence of natural life and therefore violated both the United
       States and Illinois Constitutions. Accordingly, he maintains his sentence was void ab initio
       and can be attacked at any time.

¶ 33                                         ANALYSIS
¶ 34       Before this court, defendant argues that the circuit court erred in granting the State’s
       motion to dismiss his third petition because he has made a substantial showing of
       constitutional violations, such that he is entitled to an evidentiary hearing. In the alternative,
       he argues that the circuit court erred in denying his petition for leave to file a fourth petition
       because the allegations in his fourth petition contain sufficient allegations to satisfy the
       cause-and-prejudice requirements of section 122-1(f) of the Act. Therefore, he requests a
       new sentencing hearing.
¶ 35       The Act allows criminal defendants to challenge their conviction or sentence based on
       substantial deprivations of their constitutional rights. People v. Peeples, 205 Ill. 2d 480, 509
       (2002). The filing of only one postconviction petition is contemplated under the Act. People
       v. Morgan, 212 Ill. 2d 148, 153 (2004). A petition under the Act is a collateral proceeding,
       not an appeal. People v. Williams, 209 Ill. 2d 227, 232 (2004). Therefore, res judicata bars
       issues previously decided on appeal. Id. at 233. Similarly, issues not raised, even though they
       could have been raised on appeal, are waived. Id. However, a successive petition will be

                                                  -9-
       considered on its merits, and the statutory bar to doing so will be relaxed, in the interest of
       fundamental fairness. Id. In order to have a successive petition considered, a petitioner must
       satisfy the cause-and-prejudice test. People v. Ortiz, 235 Ill. 2d 319, 329 (2009). The cause-
       and-prejudice test is codified by section 122-1(f) of the Act, which states:
                “(f) Only one petition may be filed by a petitioner *** without leave of the court.
            Leave of court may be granted only if a petitioner demonstrates cause for his or her
            failure to bring the claim in his or her initial post-conviction proceedings and prejudice
            results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause
            by identifying an objective factor that impeded his or her ability to raise a specific claim
            during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice
            by demonstrating that the claim not raised during his or her initial post-conviction
            proceedings so infected the trial that the resulting conviction or sentence violated due
            process.” 725 ILCS 5/122-1(f) (West 2010).
¶ 36        However, a petitioner is excused from the cause-and-prejudice test where petitioner can
       set forth a claim of actual innocence. Ortiz, 235 Ill. 2d at 330. Actual innocence claims based
       on newly discovered evidence are protected by the due process clause of the Illinois
       Constitution. Id. at 333. Newly discovered evidence is “evidence that was not available at
       defendant’s original trial and that the defendant could not have discovered sooner through
       diligence.” Morgan, 212 Ill. 2d at 154. The newly discovered evidence has to also be
       noncumulative and material. Id. “Evidence is considered cumulative when it adds nothing
       to what was already before the jury.” Ortiz, 235 Ill. 2d at 335. Further, “it must be of such
       conclusive character that it would probably change the result on retrial.” Morgan, 212 Ill. 2d
       at 154.
¶ 37        A petitioner under the Act is not entitled to an evidentiary hearing. Peeples, 205 Ill. 2d
       at 510. Rather, “[a]n evidentiary hearing is warranted on a post-conviction claim only where
       the allegations in the post-conviction petition, supported where appropriate by the trial record
       or accompanying affidavits, make a substantial showing that the constitutional rights of the
       defendant have been violated.” Id. “At the motion to dismiss stage in post-conviction
       proceedings, all well-pleaded facts that are not positively rebutted by the trial record are to
       be taken as true.” People v. Childress, 191 Ill. 2d 168, 174 (2000); see also People v.
       Coleman, 183 Ill. 2d 366, 382 (1998) (“Therefore, the dismissal of a post-conviction petition
       is warranted only when the petition’s allegations of fact–liberally construed in favor of the
       petitioner and in light of the original trial record–fail to make a substantial showing of
       imprisonment in violation of the state or federal constitution.”). Our review of the circuit
       court’s dismissal of a petition decided without an evidentiary hearing is de novo. Childress,
       191 Ill. 2d at 174.

¶ 38                                  Defendant’s Third Petition
¶ 39       Initially, we reiterate that at this stage in the proceedings, defendant’s allegations that are
       not rebutted by the trial record must be liberally construed in his favor and taken as true.
       Childress, 191 Ill. 2d at 174; Coleman, 183 Ill. 2d at 382. Our review of the record shows
       that defendant’s newly discovered evidence and the allegations contained therein, i.e.,


                                                  -10-
       affidavits from his codefendants, his attorney, and his ex-girlfriend, were not addressed at
       trial. Accordingly, they must be taken as true at this stage in the proceedings because they
       are not rebutted by the trial record. Childress, 191 Ill. 2d at 174. With these principles in
       mind, we must determine whether defendant has made a substantial showing that his
       constitutional rights have been violated.
¶ 40        In order for defendant to be entitled to an evidentiary hearing on his claims, he must
       show that his evidence is newly discovered, material, and noncumulative, and that it is “of
       such conclusive character that it would probably change the result on retrial.” Morgan, 212
       Ill. 2d at 154. Defendant has shown that his evidence is newly discovered because it was not
       available at his trial and could not have been discovered earlier through diligence. Morgan,
       212 Ill. 2d at 154 (defining newly discovered as “evidence that was not available at
       defendant’s original trial and that the defendant could not have discovered *** through
       diligence”). Defendant attested that his codefendants and Tameka Johnson were previously
       uncooperative. His codefendants and Tameka Johnson stated in their affidavits that they were
       uncooperative with defendant. He attested to the various difficulties of communicating while
       in the prison system and attached documentation of his numerous attempts to discover the
       evidence. Clinton Taylor could not even be located until well after trial. Defendant’s attorney
       also attested that the evidence in question was not known to him at the time of trial. Taking
       these allegations as true, defendant has shown that the evidence his allegations are based on
       is newly discovered in that it was not available at the time of his trial nor could he have
       discovered it through diligence.
¶ 41        Additionally, defendant’s allegations are material and noncumulative and probably would
       have changed the result of his trial. His codefendants attested that they each told the police
       that the police had the wrong man, that they did not know defendant, and that they gave
       descriptions of the alleged fifth perpetrator that did not match defendant. Taylor/McGee
       attested to the circumstances which led the police to defendant. We hold that defendant’s
       allegations are clearly material because they weaken or contradict the State’s case against
       him. This evidence is also noncumulative because it is new and was not previously before
       the trier of fact. See Ortiz, 235 Ill. 2d at 335 (“Evidence is considered cumulative when it
       adds nothing to what was already before the jury.”). The codefendants’ telling the police they
       had the wrong man, that they did not know defendant, and that the descriptions they gave did
       not match defendant was never before the jury and obviously not cumulative. We further
       hold that this evidence would also probably have changed the result of defendant’s trial. The
       only evidence linking defendant to the crime was his confession. No one identified defendant
       as being involved. Police testified that Taylor/McGee told them that he knew defendant’s
       name was Carl but he did not know whether defendant was involved in any way in the
       crimes. Pursuant to a plea agreement, codefendant Johnson testified for the State at
       codefendant Brown’s trial. Johnson testified consistently with his own confession, explaining
       what role each of the codefendants played in the vehicular hijacking and sexual assault which
       took place in his presence prior to the double murder. At no time did Johnson identify
       defendant as being the “Carl” who participated in the crime. Further, the State did not call
       Johnson at defendant’s trial, which took place six months after Johnson testified against
       Brown. Defendant’s attorney supplied an affidavit in which he explains how he would have

                                                -11-
       tried the case had he known about the newly discovered evidence. Namely, he would have
       introduced the statements of defendant’s codefendants. He would have argued that
       defendant’s warrantless arrest was illegal. He would have called Taylor/McGee to testify that
       the police had the wrong person. Taking these allegations as true, defendant’s evidence is
       new, material, and noncumulative, and probably would have changed the result of
       defendant’s trial. Therefore, we hold that defendant has made a substantial showing of a
       freestanding claim of actual innocence such that he is entitled to an evidentiary hearing on
       his allegations in his third petition. Accordingly, we reverse the judgment of the circuit court
       and remand the matter for an evidentiary hearing on defendant’s third petition.

¶ 42                                 Defendant’s Fourth Petition
¶ 43       Defendant, in his fourth petition, argues that his mandatory life sentence without parole
       violates the eighth amendment to the Constitution of the United States and section 11 of
       article I of the Illinois Constitution. He argues that his sentence is void ab initio and can be
       attacked at any time. Additionally, he maintains that he has satisfied the cause-and-prejudice
       test under section 122-1(f) of the Act because Miller was unknown and unknowable to him
       as it was only recently issued, and that without that argument, he was prejudiced by being
       denied his right to due process in his sentencing hearing. In response, the State argues that
       the circuit court followed the proper procedure and exercised its discretion when it sentenced
       defendant, that the rule expounded in Miller is procedural and not applicable in this case, and
       that the holding of Miller cannot be applied retroactively.
¶ 44       The two juvenile defendants in Miller were sentenced to life in prison without the
       possibility of parole for their respective murder convictions. Miller, 567 U.S. at ___, 132 S.
       Ct. at 2460. The Supreme Court pointed out that “[i]n neither case did the sentencing
       authority have any discretion to impose a different punishment. State law mandated that each
       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 (for
       example, life with the possibility of parole) more appropriate.” (Emphasis in original.) Id.
       The Court held “that mandatory life without parole for those under the age of 18 at the time
       of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
       punishments.’ ” Id. The Court noted that its prior decisions of Graham v. Florida, 560 U.S.
       ___, 130 S. Ct. 2011 (2010), and Roper v. Simmons, 543 U.S. 551 (2005), “establish that
       children are constitutionally different from adults for purposes of sentencing” due to their
       “diminished culpability and greater prospects for reform.” Miller, 567 U.S. at ___, 132 S. Ct.
       at 2464.
¶ 45       In reaching its decision, the Court addressed its concerns with proportionate punishment
       under the eighth amendment. It stated:
                “The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees
           individuals the right not to be subjected to excessive sanctions.’ [Citation.] That right,
           we have explained, ‘flows from the basic “precept of justice that punishment for crime
           should be graduated and proportioned” ’ to both the offender and the offense. [Citation.]
           As we noted the last time we considered life-without-parole sentences imposed on


                                                -12-
            juveniles, ‘[t]he concept of proportionality is central to the Eighth Amendment.’
            [Citation.] And we view that concept less through a historical prism than according to
            ‘ “the evolving standards of decency that mark the progress of a maturing society.” ’
            [Citation.]” Id. at ___, 132 S. Ct. at 2463.
       The Court did not ban the sentencing of juveniles to life in prison without parole; rather, it
       held the mandatory sentencing of juveniles to life without parole violates the eighth
       amendment and required sentencing courts “to take into account how children are different,
       and how those differences counsel against irrevocably sentencing them to a lifetime in
       prison.” Id. at ___, 132 S. Ct. at 2469. The Court concluded:
                “Graham, Roper, and our individualized sentencing decisions make clear that a judge
            or jury must have the opportunity to consider mitigating circumstances before imposing
            the harshest possible penalty for juveniles. By requiring that all children convicted of
            homicide receive lifetime incarceration without the possibility of parole, regardless of
            their age and age-related characteristics and the nature of their crimes, the mandatory
            sentencing schemes before us violate this principle of proportionality, and so the Eighth
            Amendment’s ban on cruel and unusual punishment.” Id. at ___, 132 S. Ct. at 2475.
¶ 46        Simply put, Miller holds there cannot be a mandatory sentence of life without parole for
       homicides committed by juveniles. It can be argued that Miller was a procedural change in
       how life without parole is imposed; that it did not create an absolute prohibition on life-
       without-parole sentences for juveniles. A life-without-parole sentence passes muster where
       proper procedures allow the trier of fact to determine if it is an appropriate sentence.
¶ 47        Initially, we reject defendant’s contention that his sentence was void ab initio. To be
       considered void ab initio under a new constitutional rule, the statute in question has to be
       rendered facially unconstitutional. Lucien v. Briley, 213 Ill. 2d 340, 344 (2004). “A statute
       is facially unconstitutional if there are no circumstances in which it could be validly applied.”
       Id. In this case, defendant was sentenced according to the following statutory scheme:
                “(a) Except as otherwise provided in the statute defining the offense, a sentence of
            imprisonment for a felony shall be a determinate sentence set by the court under this
            Section, according to the following limitations:
                     (1) for first degree murder,
                                                  ***
                         (c) the court shall sentence the defendant to a term of natural life
                     imprisonment when the death penalty is not imposed if the defendant,
                              ***
                              (ii) is a person who, at the time of the commission of the murder, had
                         attained the age of 17 or more and is found guilty of murdering an individual
                         under 12 years of age; or, irrespective of the defendant’s age at the time of
                         the commission of the offense, is found guilty of murdering more than one
                         victim[.]” (Emphasis added.) 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996).
       In this case, with the holding of Miller in mind, the statute can be validly applied to adults.
       Accordingly, there are circumstances in which it can be validly applied. Therefore, it is not


                                                 -13-
       facially unconstitutional.
¶ 48        While we have previously determined that defendant’s third postconviction petition may
       proceed because the defendant has made a substantial showing of a freestanding claim of
       actual innocence, that standard does not apply to the defendant’s fourth petition, which is
       based on Miller. Consequently, we must apply the cause-and-prejudice test under section
       122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2010).
¶ 49        This court has rejected defendant’s arguments that new court rulings provide a basis to
       find “cause” for failure to raise an issue on direct appeal or in an initial postconviction
       petition. See People v. Purnell, 356 Ill. App. 3d 524, 531 (2005) (defendant could not base
       claim of cause on the fact that Boclair had not yet been decided at the time he filed his initial
       postconviction petition); People v. Leason, 352 Ill. App. 3d 450, 455 (2004) (defendant could
       not claim cause on the fact that Strain had not been decided at the time he filed initial
       petition because legal basis for his claim existed even though precedent did not); People v.
       Johnson, 392 Ill. App. 3d 897, 903 (2009) (rejected defendant’s assertion that cause
       requirement was satisfied because Whitfield was decided after his initial postconviction
       petition was filed).
¶ 50        However, in each of those cases this court based its rejection on the fact that the “legal
       foundation” for the newly cited cases was laid before the defendant’s conviction, or the filing
       of his initial postconviction petition. We find that the holdings defendant relies upon here,
       i.e., Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (in supplemental briefing before this
       court), and Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011 (in his fourth petition), were
       new rules of criminal procedure which made a substantial change in the law and that the legal
       foundation for these decisions was not laid before defendant’s trial or the filing of his initial
       postconviction petition. Accordingly, defendant has satisfied the cause element of the cause-
       and-prejudice test of section 122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2010) (“Leave
       of court may be granted only if a petitioner demonstrates cause for his or her failure to bring
       the claim in his or her initial post-conviction proceedings ***. For purposes of this
       subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his
       or her ability to raise a specific claim during his or her initial post-conviction proceedings
       ***.”).
¶ 51        Defendant has satisfied the cause element of the cause-and-prejudice test, but he still
       must show that he was prejudiced. 725 ILCS 5/122-1(f) (West 2010). In order for defendant
       to show that he was prejudiced by his failure to raise his claim in his initial postconviction
       petition that his sentence is unconstitutional, defendant has to demonstrate “that the claim
       not raised during his or her initial post-conviction proceedings so infected the trial that the
       resulting conviction or sentence violated due process.” 725 ILCS 5/122-1(f) (West 2010).
       Defendant can show prejudice if the Supreme Court’s decision in Miller applies retroactively
       to his case. To determine whether Miller created a new constitutional rule of criminal
       procedure such that it can be applied retroactively in this case, we look to the standards set
       forth by the Supreme Court in Teague v. Lane and adopted by our supreme court in People
       v. Flowers. People v. Sanders, 238 Ill. 2d 391, 400-02 (2010) (citing Teague v. Lane, 489
       U.S. 288 (1989), and People v. Flowers, 138 Ill. 2d 218 (1990)). Our supreme court has
       explained the Teague analysis as such:

                                                 -14-
            “Generally, new rules are not to be applied retroactively to cases on collateral review
            except in two instances: (1) if the rule places certain kinds of primary, private individual
            conduct beyond the power of the criminal-law-making authority to proscribe; or (2) if the
            rule requires the observance of those procedures that are implicit in the concept of
            ordered liberty.” Id. at 401.
       The second exception is limited to “ ‘watershed rules of criminal procedure’ ” and to “those
       new procedures without which the likelihood of an accurate conviction is seriously
       diminished.” Id. (quoting Teague, 489 U.S. at 311).
¶ 52        We hold that the Supreme Court’s decision in Miller should be retroactively applied in
       this case because it is a rule that “requires the observance of those procedures that are
       implicit in the concept of ordered liberty.” Id. The Court in Miller explained:
                “The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees
            individuals the right not to be subjected to excessive sanctions.’ [Citation.] That right,
            we have explained, ‘flows from the basic “precept of justice that punishment for crime
            should be graduated and proportioned” to both the offender and the offense. [Citation.]
            As we noted the last time we considered life-without-parole sentences imposed on
            juveniles, ‘[t]he concept of proportionality is central to the Eighth Amendment.’
            [Citation.]” Miller, 567 U.S. at ___, 132 S. Ct. at 2463.
       Accordingly, under the proportionate punishment analysis in Miller, defendant was denied
       a “basic ‘precept of justice’ ” by not receiving any consideration of his age from the circuit
       court in sentencing. (Internal quotation marks omitted.) Id. at ___, 132 S. Ct. at 2463.
       Further, “ ‘[t]he concept of proportionality is central to the Eighth Amendment.’ [Citation.]”
       Id. Applying the rule of Miller to the case at bar shows that “the rule requires the observance
       of procedures that are implicit in the concept of ordered liberty.” Sanders, 238 Ill. 2d at 401.
¶ 53        A new rule of criminal procedure applies retroactively in those instances where it has
       made a substantial or substantive change in the law. Id. (new rules are to be applied
       retroactively to “ ‘watershed rules of criminal procedure’ ” and “limited to those new
       procedures without which the likelihood of an accurate conviction is seriously diminished”
       (citing Teague, 489 U.S. at 311)). We find that Miller not only changed procedures, but also
       made a substantial change in the law in holding under the eighth amendment that the
       government cannot constitutionally apply a mandatory sentence of life without parole for
       homicides committed by juveniles. Life without parole is justified only where the State
       shows that it is appropriate and fitting regardless of the defendant’s age. We hold that Miller
       is such a “ ‘watershed rule[ ] of criminal procedure.’ ” Id.
¶ 54        As to retroactive application we note the Miller decision involved the robbery and murder
       cases of Evan Miller and Kuntrell Jackson. Miller was convicted of killing a man in Alabama
       and Jackson was convicted as an accomplice in an Arkansas robbery resulting in murder.
       Both were 14 when convicted. It is instructive that the Miller companion case, Jackson v.
       Hobbs, arising on collateral review, involved a life-without-parole-sentence heretofore final.
       Notwithstanding its finality, the Supreme Court of the United States in effect retroactively
       applied Miller and vacated Jackson’s sentence. “[O]nce a new rule is applied to the defendant
       in the case announcing the rule, evenhanded justice requires that it be applied retroactively


                                                 -15-
       to all who are similarly situated.” Teague, 489 U.S. at 300. The Miller case held under the
       eighth amendment that it is cruel and unusual punishment to impose a mandatory life
       sentence without parole to a special class–juveniles. It would also be cruel and unusual to
       apply that principle only to new cases. We therefore hold that the Court’s holding in Miller
       should be retroactively applied. From the above discussion, we believe that it is evident that
       when a defendant has met his burden under Teague that a new rule must be retroactively
       applied, the defendant has also met his burden under the cause-and-prejudice test. 725 ILCS
       5/122-1(f) (West 2010); People v. Pitsonbarger, 205 Ill. 2d 444, 461-62 (2002).
¶ 55       Before this court the parties each sought leave to cite additional authority, which we
       allowed. The State cited a recent case from the Florida court of appeals, Geter v. State, No.
       3D12-1736, 2012 WL 4448860 (Fla. Dist. Ct. App. Sept. 27, 2012); and defendant cited a
       per curiam opinion from the Louisiana Supreme Court in State v. Simmons, No. 2011-KP-
       1810, 2012 WL 4856210 (La. Oct. 12, 2012), and two unpublished decisions, the California
       Court of Appeals decision in People v. Hoffman, No. F061127, 2012 WL 3066392 (Cal. Ct.
       App. July 30, 2012), and the Iowa Court of Appeals decision in Iowa v. Lockheart, 820
       N.W.2d 769 (Iowa Ct. App. 2012) (table). We have reviewed all of the supplemental
       authorities submitted by the parties and find them all distinguishable. Although we agree
       with the ultimate results of Simmons, Hoffman, and Lockheart, in that they each remand their
       respective cases for resentencing in accord with Miller, none of them employ the Teague
       analysis that we have relied upon in reaching our conclusion. We have also reviewed the
       Geter decision cited by the State. Although we disagree with the result of Geter in that it held
       that Miller did not apply retroactively, it also used a different standard of analysis than that
       found in Teague. We acknowledge that the United States Supreme Court held in Danforth
       v. Minnesota, 552 U.S. 264, 280-81 (2008), that state courts need not utilize the analysis
       found in Teague. However, our supreme court still employs it. See People v. Davis, 388 Ill.
       App. 3d 869, 879 (2009) (listing cases). Accordingly, the supplemental authorities from
       foreign jurisdictions cited by the parties have no effect on our decision to retroactively apply
       Miller.
¶ 56       After oral argument in this matter, the State filed another motion for leave to cite
       additional authority, which we allowed. In its motion, the State cited the recent Michigan
       Court of Appeals decision in People v. Carp, No. 307758, 2012 WL 5846553 (Mich. Ct.
       App. Nov. 15, 2012). The Carp court held, utilizing a Teague analysis, that the holding in
       Miller is not a substantive new rule requiring cases on collateral review to apply it
       retroactively. The Carp court specifically held, contrary to our holding in this case, that
       Miller did not create a watershed rule of criminal procedure. As discussed supra, we hold
       that Miller did create such a rule. Therefore, we respectfully disagree with the Michigan
       Court of Appeals decision in Carp.
¶ 57       Here, the sentencing court did not graduate and proportion punishment for defendant’s
       crime considering his status as a juvenile at the time of the offense. This violates the eighth
       amendment’s prohibition on cruel and unusual punishment. Miller, 567 U.S. at ___, 132 S.
       Ct. at 2460. Therefore, defendant has shown prejudice under the Act. 725 ILCS 5/122-1(f)
       (West 2010) (“Leave of court may be granted only if a petitioner demonstrates cause for his
       or her failure to bring the claim in his or her initial post-conviction petition and prejudice

                                                -16-
       results from that failure.”). Accordingly, defendant has satisfied the cause-and-prejudice test
       of section 122-1(f) of the Act and the circuit court erred in denying his motion for leave to
       file a successive postconviction petition. 725 ILCS 5/122-1(f) (West 2010).
¶ 58        At oral argument the State informed the court that approximately 105 convicted
       defendants in Illinois have life without parole sentences and would be affected if the Miller
       holding is applied retroactively. This is not such a great number of cases for us to conclude
       that it is an unreasonable burden for the State and the courts to reopen their cases for
       resentencing.
¶ 59        Lastly, we address a concern which arises as a consequence of determining Miller to be
       retroactively applied. No doubt there are family members, friends, and victims who have
       suffered due to the acts of juveniles now serving life-without-parole sentences. We
       understand the anxiety, pain, and negative impact that remanding and ordering resentencing
       hearings will cause them. However, a new sentencing hearing should require only one further
       proceeding to attend whether or not they previously attended. They will have another
       opportunity to make a statement as to the impact the crime has had upon them before the new
       sentence is given. See 725 ILCS 120/6 (West 2010).
¶ 60        Due to our holding regarding defendant’s fourth petition, if the circuit court declines to
       grant defendant a new trial after an evidentiary hearing on his third petition, the circuit court
       shall conduct a new sentencing hearing in accord with our holding concerning defendant’s
       fourth petition. Additionally, due to our holding on defendant’s fourth petition, we reverse
       the circuit court’s judgment awarding fees and costs.

¶ 61                                     CONCLUSION
¶ 62       The judgment of the circuit court is reversed and the cause is remanded with directions.

¶ 63       Reversed and cause remanded.




                                                 -17-
