FIRST DISTRICT, FIRST DIVISION February 1, 2021

No. 1-18-0297

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Respondent-Appellee, ) Cook County, Illinois. ) v. ) No. 10 CR 11194 ) BRIAN THOMPSON, ) Honorable ) Stanley J. Sacks, Petitioner-Appellant. ) Judge Presiding. _____________________________________________________________________________

JUSTICE COGHLAN delivered the judgment of the court. Justice Pierce concurred in the judgment. Justice Hyman dissented.

ORDER

¶1 Held: Following his conviction for murder and attempted murder that he committed at the age of 19, defendant filed a postconviction petition in which he argued that his discretionary de facto life sentence was unconstitutional under Miller v. Alabama,

(2012), and the proportionate penalties clause. We affirm the first- stage dismissal of his petition, finding that it failed to state the gist of a legally cognizable claim and that his original sentencing hearing was Miller-compliant.

¶2 After opening fire on a crowded street in a residential neighborhood, defendant Brian

Thompson was convicted of first-degree murder and attempted first-degree murder and No. 1-18-0297

sentenced to 60 years' imprisonment. He filed a postconviction petition claiming that because he

was 19 when he committed the shooting, his sentence violated the proportionate penalties clause

of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) in light of the principles articulated in

Miller v. Alabama,

(2012). The trial court dismissed his petition at the first stage of

postconviction proceedings, finding that Miller and the constitutional sentencing protections

applicable to juvenile offenders did not apply to adult offenders such as Thompson. For the

reasons that follow, we affirm.

¶3 BACKGROUND

¶4 We set out the facts of Thompson’s offense in detail in our opinion disposing of his direct

appeal. See People v. Thompson,

, ¶¶ 10-23. Most of those facts are

unnecessary for an understanding of the issue raised in this appeal, so we summarize them

briefly.

¶5 In 2010, Thompson and his codefendant pulled up to 1927 South St. Louis Avenue in a

car, disembarked, and started shooting. Daniel Crockett, Jr., was fatally shot; Joshua Evans was

shot in the leg and survived. Evans recognized the men in the car from the neighborhood and

identified Thompson as one of the shooters. Crockett's mother and brother also identified

Thompson as one of the shooters. A jury found Thompson guilty of the first-degree murder of

Crockett and the attempted first-degree murder of Evans.

¶6 At sentencing, the State emphasized that Thompson and his codefendant "pulled up to a

residential block, got out of a car, and basically opened fire on a street filled with people." The

State further argued: "To drive up to a street filled with people in the middle of the day and open

fire with several guns is something that cannot be tolerated in a civilized society."

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¶7 Thompson's counsel argued that the minimum sentence was appropriate based on

Thompson's young age and his "insignificant criminal record" with no felony convictions.

Counsel noted that he had been able to obtain a degree in jail and cited several letters written in

Thompson's support that described him as "a liked, happy, good-hearted kid."

¶8 Thompson's presentence investigation (PSI) report indicated that he had a "normal"

childhood, with no abuse and no family history of criminality or gang affiliation. Thompson

himself had no gang affiliation and had never experimented with alcohol or illicit drugs. He also

had no history of mental illness, past or present. He attended public school until tenth grade,

when he was expelled for excessive absenteeism; he had no further educational goals and had

never been employed. Prior to his incarceration, he was financially supported by his mother.

¶9 Under these facts, the trial court found the minimum sentence inappropriate, stating that

Thompson was shooting on a "crowded street" where "other people could have been shot as

well." Although the court acknowledged Thompson's age and lack of criminal history as

mitigating factors, it found those factors were outweighed by his "horrendous decision [with]

horrific consequences." The court therefore sentenced Thompson to consecutive sentences of 38

years for first-degree murder (above the minimum of 35 years) and 22 years for attempted

murder (above the minimum of 21 years), for a total of 60 years.

¶ 10 On direct appeal, we affirmed Thompson's convictions and sentence, with a modification

of presentence custody credit. Thompson,

.

¶ 11 On July 13, 2017, Thompson filed a pro se postconviction petition raising several claims.

First, he claimed his trial counsel was ineffective for failing to investigate eyewitnesses to the

shooting, even though "a lot of people" were present. Second, he raised actual innocence and

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Brady claims based on alleged eyewitness statements to police. (He does not pursue these claims

on appeal.)

¶ 12 Lastly, he argued that his 60-year sentence for a shooting he committed at the age of 19

constituted an unconstitutional de facto life sentence. He stated that he would not become

eligible for release until 2070, a date beyond his statistical life expectancy. People v. Sanders,

(citing statistics indicating that "a person held in a general

prison population has a life expectancy of about 64 years"). He further argued that "the 'science

and social science' evidence in which the United States Supreme Court rested their decisions on

in Miller v. Alabama, Graham v. Florida, and Roper v. Simmons regarding 'adolescent brain

development' should apply to young adults 18 to 24 years of age with equal force." He argued

that such offenders should be evaluated on a case-by-case basis, taking into account their

circumstances, degree of maturity, and "adolescent brain deficiencies" to determine their

potential for rehabilitation.

¶ 13 Thompson therefore asserted that his sentence was unconstitutional. He requested

appointment of a neurologist, a psychologist, and a "mitigation expert" to evaluate his mental

age, his maturity level, and his "home, school, education, and attendant characteristic lifestyle at

the time of the offense," all of which he argued might reduce his culpability.

¶ 14 The circuit court dismissed Thompson's petition at the first stage of postconviction

proceedings, finding that it failed as a matter of law because Miller's protections did not apply to

adult offenders like Thompson. Thompson now appeals.

¶ 15 ANALYSIS

¶ 16 The Post-Conviction Hearing Act allows a convicted defendant to challenge his

conviction as a substantial denial of his rights under either the United States or Illinois

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Constitutions. People v. Hodges,

(2009). At the first stage of postconviction

proceedings, the trial court independently considers the petition and dismisses it if it "is frivolous

or is patently without merit" (725 ILCS 5/122-2.1 (West 2016)). The threshold for survival at

this stage is low, and a petitioner need only present a limited amount of detail regarding his

claims. Hodges,

. We accept all well-pled allegations as true, except those

positively rebutted by the record. People v. Knapp,

; see People v.

Phyfiher,

(2005) (petitioner's allegations substantively rebutted by

record were frivolous and patently without merit). We review the first-stage dismissal of a

postconviction petition de novo. Hodges,

.

¶ 17 Thompson's sole argument in this appeal is that his 60-year sentence violates the

proportionate penalties clause of the Illinois Constitution, which requires that “all penalties shall

be determined according to the seriousness of the offense and with the objective of restoring the

offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Under this provision, the application

of a sentencing statute is unconstitutional when it "is shocking to the moral sense of the

community," based upon an " 'evolving standard[] of decency that mark[s] the progress of a

maturing society.' " People v. Miller,

(2002) (Leon Miller) (quoting Trop

v. Dulles,

(1958)).

¶ 18 As part of this evolving standard of decency, the Supreme Court in Miller,

, found that juveniles are "constitutionally different from adults" for sentencing purposes

because they have "diminished culpability and greater prospects for reform." The Court

identified three significant ways in which juveniles differ from adults:

"First, children have a lack of maturity and an underdeveloped sense of responsibility,

leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children

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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.)

(citing Roper v. Simmons,

(2005)).

Thus, under Miller, a juvenile offender may not be sentenced to mandatory life in prison without

possibility of parole. Id. at 479. Moreover, a juvenile offender may not be given a discretionary

life sentence without consideration of "the defendant's youth and its attendant characteristics."

People v. Holman,

.

¶ 19 Our supreme court has made clear that the foregoing eighth amendment protections apply

only to juveniles and not to young adults like Thompson. People v. Harris,

(rejecting defendant's Miller claim because "for sentencing purposes, the age of 18 marks the

present line between juveniles and adults. As an 18-year-old, defendant falls on the adult side of

that line."). However, the proportionate penalties clause is not determined in lockstep with the

eighth amendment but may provide additional limitations on penalties. People v. Gipson,

. Thompson argues that, under the proportionate penalties clause, we

should extend the reasoning of Miller to him based on an "advancing scientific consensus that a

person's brain is not fully developed until their mid-twenties."

¶ 20 We disagree. Assuming that Thompson's 60-year sentence is a de facto life sentence (see

People v. Buffer,

(sentence "greater than 40 years" is a de facto life

sentence for a juvenile)), we find for two reasons that Thompson’s claim is frivolous and

patently without merit.

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¶ 21 First, and most significantly, we do not find that Thompson's sentence "shock[s] the

moral sense of the community" (Leon Miller,

) where it was a discretionary

sentence reflecting his personal involvement in a shooting he committed as an adult.

¶ 22 Because Thompson's sentence was discretionary, his case is readily distinguishable from

cases involving mandatory sentences where the trial court may have wished to show leniency to

a youthful offender but was precluded from doing so by the statutory sentencing scheme. During

sentencing, the trial court could and did consider all available mitigating circumstances,

including Thompson's youth. The court nevertheless found that these mitigating circumstances

were outweighed by his "horrendous decision" to open fire on a "crowded street" where "other

people could have been shot as well." Under these circumstances, the court found a sentence

greater than the minimum to be appropriate. As we have previously observed, "nothing in Miller

or Holman suggests that we are free to substitute our judgment for that of the sentencing court."

People v. Croft,

, appeal denied,

(2018), and cert.

denied sub nom. Croft v. Illinois,

(2018).

¶ 23 Just as importantly, Thompson's sentence reflects his personal culpability, since he

directly participated in the shooting. During sentencing, the trial court explicitly found that

Thompson and his codefendant shared equal culpability. In this regard, this case is analogous to

People v. Carrion,

, and People v. Handy,

,

both cases in which we rejected a defendant's attempt to extend Miller via the proportionate

penalties clause to young adult defendants for crimes they personally committed.

¶ 24 In Carrion,

, the 19-year-old defendant entered the apartment

of an elderly woman and stabbed her to death. He was convicted of residential burglary and

murder and sentenced to 55 years' imprisonment. Id. ¶ 16. He sought, and was denied, leave to

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file a successive postconviction petition raising a proportionate penalties claim. In affirming, we

held that his sentence "does not shock the moral sense of the community and thus is not cruel or

degrading," because he "committed [his crimes] as the principal at the legal age of adulthood."

Id. ¶ 30.

¶ 25 Similarly, in Handy,

, we declined to extend Miller to a

defendant who, at age 18 ½, actively participated in robbing the victims' home. We explained:

"Whether a defendant physically committed the offense is a significant consideration for

courts tasked with deciding whether to extend Miller principles to a young adult under

the proportionate penalties clause. [Citations.] Here, we cannot overlook defendant's

active participation where he invaded the victims' house with the codefendants, held a

gun to Mr. W.'s head to prevent him from interfering while the codefendants robbed and

attacked his family and kidnapped his young daughter, and then actively participated in

the gang rape."

¶ 40 (citing People v. Pittman,

(not

extending Miller principles where the 18-year-old defendant personally stabbed three

victims to death); People v. Thomas,

(not extending

Miller principles where the 18-year-old defendant "was the active shooter convicted of

first degree murder using a firearm that proximately caused one victim's death"); People

v. Ybarra,

(not extending Miller principles where the 20-

year-old defendant was the one who "pulled the trigger")).

Likewise, in the present case, we cannot overlook Thompson's active participation in the

shooting incident that killed one victim and wounded another.

¶ 26 People v. Harris,

, and People v. House,

,

are both distinguishable because they involved mandatory sentences that frustrated the discretion

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of the trial court. The Harris defendant received a mandatory 76-year sentence for murder and

attempted murder he committed at the age of 18; the trial court stated at sentencing, "I am sorry

that the sentencing parameters are such that my options are somewhat limited." Harris,

. Our supreme court rejected defendant's proportionate penalties claim on direct

appeal, finding it "premature," but it observed in dicta that defendant was "not necessarily

foreclosed" from bringing his claim in a postconviction petition. Id. ¶¶ 46, 48.

¶ 27 Following the Harris decision, in House,

, the court vacated

a mandatory natural life sentence for a 19-year-old who acted as a lookout while his fellow gang

members committed a murder. In doing so, the court found it significant that "[t]he [trial] court's

ability to take any factors into consideration was negated by the mandatory nature of defendant's

sentence." Id. ¶ 64. The court further found that the court was precluded from taking into

account defendant's rehabilitative potential, which was "especially relevant" given his lack of

actual participation in the shooting. Id.

¶ 28 Here, unlike in Harris and in House, the trial court's discretion to take mitigating factors

into consideration was not frustrated by mandatory minimums, nor was Thompson convicted on

a theory of accountability for a crime in which he lacked personal involvement. Accordingly,

Thompson's sentence did not violate the proportionate penalties clause as a matter of law.

¶ 29 Second, even assuming arguendo that Miller principles did apply to Thompson, the

record reflects that his sentencing was Miller-compliant. In this regard, we are mindful that there

are no "magic words" that the sentencing court must use in order to comply with Miller. People

v. Lusby,

, ¶ 33 fn.2. In particular, the sentencing court is not required to make a

finding of fact regarding a juvenile defendant's incorrigibility.

(citing Montgomery v.

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Louisiana,

,

(2016)). Rather, our supreme court has set forth a

non-exhaustive list of characteristics that the sentencing court should consider:

"(1) the juvenile defendant's chronological age at the time of the offense and any

evidence of his particular immaturity, impetuosity, and failure to appreciate risks and

consequences; (2) the juvenile defendant's family and home environment; (3) the juvenile

defendant's degree of participation in the homicide and any evidence of familial or peer

pressures that may have affected him; (4) the juvenile defendant's incompetence,

including his inability to deal with police officers or prosecutors and his incapacity to

assist his own attorneys; and (5) the juvenile defendant's prospects for rehabilitation."

Holman,

.

¶ 30 Here, the record reflects that the sentencing court heard and considered evidence relating

to each of these factors. First, Thompson was 19 when he committed the shooting in this case, a

fact which the trial court explicitly took into account when delivering sentence.

¶ 31 Second, regarding Thompson's family and home environment, the court considered his

PSI report, which did not reflect that he came from a "horrific, crime-producing setting[]" as

discussed in Miller,

. On the contrary, Thompson was not abused as a child; he

had no family history of criminality or gang affiliation; and he was financially supported by his

mother.

¶ 32 Third, as noted, Thompson personally participated in the shooting, and the trial court took

his individual culpability into account, finding Thompson and his codefendant to be equally

responsible for the crime. The record does not reflect that Thompson was affected by familial or

peer pressure, particularly since he disavowed any gang affiliation.

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¶ 33 Fourth, no evidence was presented regarding Thompson's incompetence. On the contrary,

his PSI report reflects that he had no history of substance abuse or mental illness which might

have affected his ability to deal with police officers, prosecutors, or his counsel.

¶ 34 Finally, in regards to his rehabilitative potential, Thompson presented evidence that he

had obtained a degree in jail, as well as several letters from people describing him as "a liked,

happy, good-hearted kid." The sentencing court reviewed these letters individually, concluding

that they were "very nice" but their value in mitigation was outweighed by the circumstances in

aggravation, particularly the fact that Thompson opened fire on a "crowded street" where "other

people could have been shot as well."

¶ 35 In sum, the record reflects that "[t]he trial court presided over the case from beginning to

end and considered the defendant's youth and its attendant characteristics before concluding that

his future should be spent in prison." Lusby,

(holding that juvenile

defendant's de facto discretionary life sentence was constitutional under Miller). Thompson had a

full opportunity to present mitigating evidence on his behalf and did, in fact, avail himself of that

opportunity. Thus, even if Thompson could claim the benefit of Miller, the record positively

rebuts any contention that he is entitled to resentencing, and summary dismissal of his

postconviction petition was proper. See Phyfiher,

(petitioner's allegations

substantively rebutted by record were frivolous and patently without merit).

¶ 36 We acknowledge that a number of recent panels of this court have held that 18- and 19-

year-old defendants who received discretionary life sentences (de facto or otherwise) for murder

were entitled to raise Miller claims in successive postconviction petitions. People v.

Carrasquillo,

; People v. Ruiz,

; People v.

Johnson,

; People v. Minniefield,

. We do

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not find these cases persuasive here, for two reasons. First, as discussed, we find Carrion,

Handy, and the cases cited therein to be more persuasive on the issue of discretionary sentences

for young adult defendants who are personally culpable for their crimes. See Carrion,

(rejecting Ruiz and Johnson). Secondly, also as discussed, the sentencing

record in this particular case positively rebuts any claim that Thompson is entitled to

resentencing under Miller. The trial court properly heard mitigating evidence related to

Thompson's youth and attendant characteristics and, in the exercise of its sound discretion,

concluded that a sentence above the minimum was appropriate. Under these facts, Thompson's

attempt to obtain a second bite at the sentencing apple is frivolous and patently without merit,

and the trial court properly dismissed his petition.

¶ 37 CONCLUSION

¶ 38 For the foregoing reasons, we affirm the circuit court's first-stage dismissal of

Thompson's postconviction petition.

¶ 39 Affirmed.

¶ 40 JUSTICE HYMAN, dissenting:

¶ 41 I respectfully dissent. The majority’s analysis runs counter to first stage postconviction

proceedings. We are at the pro se pleading stage of Thompson’s first postconviction petition.

The purpose of these proceedings is to offer evidence from outside the record to support

constitutional claims, and, at the first stage, the defendant needs only satisfy exceedingly low

pleading requirements. Might Thompson fail to ultimately provide additional evidence to support

his claim? Sure. Might the trial court consider any evidence he does provide and, ultimately,

discredit it? It could. But, might Thompson provide information that was not presented to the

trial court at his original sentencing hearing casting doubt on the propriety of a discretionary life

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sentence? His pleadings (taken as true and liberally construed) show that he may, and, so, I

would allow his claim to move forward for adversarial testing before the trial court.

¶ 42 Postconviction Proceedings

¶ 43 Postconviction proceedings receive and test evidence from outside the record. E.g.

People v. Pitsonbarger,

(2002) (postconviction proceedings limited to

issues that were not, and could not have been, raised on direct appeal). The majority, relying on

the trial court’s ostensible consideration of the factors our supreme court set out in People v.

Holman,

, finds the record “positively rebuts” Thompson’s constitutional claim. I

disagree because in the original sentencing record the evidence at the heart of his claim—the

developing brain science showing juvenile immaturity extends into young adulthood—never gets

mentioned at all.

¶ 44 Here’s the crux of Thompson’s claim from his petition:

“Petitioner attaches the ‘science and social science’ evidence to this petition. Further, a

neurologist and psychiatrist should be appointed to properly evaluate petitioner and

obtain his school and psychiatric records for evaluation, with the appointment of a

‘mitigation expert’ to present the court with a report of the petitioner’s home, school,

education, and attendant characteristic lifestyle at the time of the offense. Where there is

sufficient evidence available at sources that petitioner does not have access [to] due to his

incarceration, experts can present a plausible argument of ‘immaturity’ and ‘brain

deficiencies’ to reduce culpability.”

¶ 45 At Thompson’s initial sentencing hearing, he presented no “science and social science”

evidence to the trial court. But, as People v. Hill,

, shows, an

expert can offer considerably more insight into the impact of certain life circumstances on

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juvenile development. Indeed, an expert can opine on an offender’s rehabilitative potential in

concrete predictive terms that do not appear in the raw data of a PSI. Id. ¶¶ 18-19. Thompson’s

petition, liberally construed, makes allegations that similar expert analysis applies to him; at a

minimum, his petition “suppl[ies] sufficient factual basis to show the allegations in the petition

are capable of objective or independent corroboration,” the standard set by our supreme court.

People v. Allen,

(internal quotations omitted).

¶ 46 Thompson’s petition emphasizes the “science and social science” evidence he attached to

his petition, showing that adolescent brain development continues into young adulthood. He

includes a plethora of articles supportive of that claim. Thompson argues he should be given an

opportunity to “obtain his school and psychiatric records.” Construing his allegations liberally, as

this court must, Thompson alleges that he has received mental health treatment (because

otherwise those records would not exist). He further alleges that an expert could present evidence

of his “immaturity” and “brain-deficiencies” to establish his reduced culpability. Again,

construing those allegations liberally, for an expert to be able to testify to evidence of

Thompson’s particular immaturity or brain development, the evidence must exist.

¶ 47 Taken as true and liberally construed, Thompson has alleged sufficient facts to go

forward on his sentencing claim based on “juvenile maturity and brain development.” See People

v. Harris,

. At least, by referring to the existence of records that an expert

could evaluate, he has shown his claim is “capable of objective or independent corroboration.”

Allen,

(reciting standard).

¶ 48 Because Thompson’s allegations center around evidence outside the original sentencing

record, the majority’s analysis—applying a retrospective Miller analysis in the style of People v.

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Holman,

and People v. Lusby, 2020 IL 124046—fails on its own terms. It is far

from clear these cases apply when dealing with young adult offenders like Thompson.

¶ 49 Our supreme court has never held a retrospective Miller analysis is appropriate, much

less required, for young adult defendants claiming protection under the proportionate penalties

clause. Both Lusby and Holman involve defendants who were juveniles at the time of their

offenses raising exclusively Eighth Amendment challenges. Lusby,

(age

16); Holman,

(age 17). For reasons this court has already explained, the

difference between retrospectively applying Miller to juvenile sentencing (where Miller

presumptively applies) and young adult sentencing (where it does not) matters and counsels

against a retrospective analysis at the early stages of collateral proceedings for young adults. E.g.

People v. Ruiz,

. For juvenile offenders, courts may be able

to indulge the fiction (and I emphasize it is a fiction) that sentencing judges, by some divination,

viewed evidence at a pre-Miller sentencing hearing through a Miller lens. But I fail to see how a

trial court could possibly have viewed the relevant sentencing facts in their proper constitutional

scope when the law applying Miller principles to young adults through the proportionate

penalties clause was and still is not settled. Mentioning the Holman factors and considering them

with their due constitutional weight are altogether different.

¶ 50 Also, both Lusby and Holman involve juvenile offenders seeking leave to file successive

postconviction petitions. To file a successive petition, these defendants had to show cause for

and prejudice from failing to raise the claim sooner, a “higher burden than the frivolous or

patently without merit standard applied at first-stage proceedings.” People v. Moore,

. It is logical, or at least defensible, to require a retrospective Miller

analysis for juvenile defendants who later file successive postconviction petitions raising Miller

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claims—juvenile defendants cannot be prejudiced if they originally received the constitutional

considerations to which they claim they are entitled. Those considerations are not before us—

Thompson is litigating his first postconviction petition.

¶ 51 Finally, I continue to disagree with the analysis in People v. Handy,

, and the cases that rely on it. The majority cites Handy for two propositions: (i) that

young adult offenders who are personally culpable (as opposed to merely accountable) for their

crimes automatically fall outside Miller’s countenance, and (ii) that the discretionary nature of

Thompson’s sentence means he is categorically ineligible for relief. See id. ¶¶ 40-41. These

distinctions are incompatible with Miller itself and, should Thompson show Miller applies to

him, they evaporate completely.

¶ 52 As I have explained elsewhere, Miller prohibits life without parole for juvenile

offenders—even offenders who are the primary actors in heinous crimes. See e.g., Ruiz,

(citing Miller,

)). So, if Thompson can show

Miller applies to him, what difference does it make that he was convicted as a principal? None

that I can see. In a similar vein, the Illinois Supreme Court has extended Miller protections to

juveniles who receive discretionary life sentences. Id. ¶ 40 (discussing Buffer,

and Holman,

). Again, should Thompson show Miller principles apply to him as

a young adult, why does the discretionary nature of his sentence take him out from under those

protections? The simplest answer: it does not.

¶ 53 Much more could be said about the inherent flaws in cases like Handy or in the idea of

retrospective Miller analyses but that is not my primary disagreement with the majority. We

should be asking ourselves two questions. First, are the factual allegations Thompson makes

“fantastic or delusional” (Allen,

)? As I have demonstrated, they are not;

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presumed to be true and construed liberally, Thompson’s factual claims depend on information

outside the record and capable of independent corroboration. Second, is Thompson’s legal claim

“indisputably meritless” (id.)? The majority acknowledges disagreement in this area of the law.

Supra, ¶ 36. The majority may quarrel with Thompson’s legal arguments for applying Miller

principles to him as a young adult offender; however, until our supreme court weighs in,

Thompson’s claim is a far cry from indisputably meritless.

¶ 54 Accounting for the extra-record evidence and the proper standard of first-stage review,

Thompson’s petition states the “gist” of a constitutional claim. Thompson should be permitted to

test that claim in further proceedings consistent with the Post-Conviction Hearing Act.

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