THIRD DIVISION February 10, 2021

No. 1-18-0191

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 ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 02 CR 13497 ) CHRISTOPHER CARTER, ) Honorable ) Steven G. Watkins, Defendant-Appellant. ) Judge Presiding. ) ______________________________________________________________________________

PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justice Ellis concurred in the judgment. Justice Burke specially concurred.

ORDER

¶1 Held: The judgment of the circuit court of Cook County summarily dismissing defendant’s postconviction petition is reversed; defendant’s postconviction petition, which alleged his de facto life sentence violated the eighth amendment of the United States Constitution and the Proportionate Penalties Clause of the Illinois Constitution, was not based on an indisputably meritless legal theory or fanciful factual allegations; the cause is remanded for second stage postconviction proceedings with instructions to conduct a hearing to permit defendant to attempt to demonstrate the applicability of Miller v. Alabama.

¶2 Defendant appeals from the trial court’s first stage summary dismissal of his pro se

postconviction petition filed pursuant to section 5/122-1 of the Post-Conviction Hearing Act (725 1-18-0191

ILCS 5/122-1 (West 2016)). In his petition, defendant, who was 20-years old at the time of his

offense, argued his 100-year sentence for first degree murder, aggravated kidnapping, armed

robbery, and residential burglary was a de facto life sentence which violated the eighth

amendment of the United States Constitution and the Proportionate Penalties Clause of the

Illinois Constitution where the trial court failed to consider defendant’s youth and its attendant

characteristics in arriving at his sentence. For the reasons set forth below, we reverse the trial

court’s judgment and remand for further proceedings under the Post-Conviction Hearing Act.

¶3 BACKGROUND

¶4 Defendant, Christopher Carter, appeals the trial court’s judgment summarily dismissing

his initial petition for postconviction relief. Following a jury trial, defendant was found guilty of

first degree murder, aggravated kidnapping, armed robbery, and residential burglary. The jury

also found the victim James Vanston’s death resulted from exceptionally brutal and heinous

circumstances indicative of wanton cruelty allowing the trial court to impose discretionary

extended term sentencing. Defendant was sentenced to 100 years’ imprisonment—80 years for

murder; 20 years for aggravated kidnapping; 20 years for armed robbery; and 10 years for

residential burglary—and ordered the latter three incarceration periods to run concurrently to

each other and consecutive to the murder sentence. On direct appeal this court affirmed

defendant’s conviction and sentence in People v. Carter, No. 1-06-2510 (2008) (unpublished

order under Illinois Supreme Court Rule 23). Leave to appeal was denied. People v. Carter,

(2008).

¶5 Defendant’s Trial

¶6 Defendant, who was 20-years old at the time of the offense, was charged with first degree

murder for Vanston’s death along with co-defendants Greg Crowder and Marcus Smith, who were

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respectively ages 26 and 23 at the time of the offense. Defendant and co-defendant Smith had

simultaneous but severed jury trials after which Smith was found guilty and sentenced to 100

years’ imprisonment. Crowder pled guilty in exchange for a sentence of 72 years’ imprisonment.

¶7 We recount the relevant evidence and details from defendant’s trial as previously set

forth by this court on direct appeal.

“On March 28, 2001, defendant had known Crowder for about four

months. Defendant often drove Crowder around because Crowder did not own a

car. Defendant asked Crowder if he could borrow some money, and Crowder said

yes. Defendant picked up Crowder, and the men went to Smith’s apartment.

Crowder displayed a gun and told defendant and Smith he planned to use the

weapon against Vanston because Vanston owed him money. (Defendant testified

at trial, however, that Crowder gave him a pager when they arrived at Smith’s

apartment and told defendant to return when he was paged.)

In his inculpatory statement, defendant said that when Crowder announced

his plan to attack Vanston, Smith produced gloves, a telephone cord and a

crowbar. Smith demonstrated a tactic on defendant that Smith said he planned to

use to ‘bring the man down,’ after which defendant should tie up Vanston. When

Vanston arrived at Smith’s apartment, Smith forced Vanston to the ground and

defendant tied Vanston’s hands and feet with the phone cord. The men carried

Vanston to the garage, where Crowder and Smith looked for Vanston’s wallet.

Crowder and Smith left defendant alone with Vanston for between 30 and 60

seconds. At trial, defendant testified that while they were in the garage, he said he

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wanted to leave but Crowder replied: ‘Nobody is going anywhere until everything

is over with.’

After Crowder returned and demanded money from Vanston, and Vanston

refused, Crowder accused Vanston of lying. Crowder and Smith hit Vanston with

the crowbar. Crowder and Smith left defendant alone with Vanston again and

returned with gasoline. Smith poured the gasoline on Vanston, and defendant

supplied a match at Smith’s request. Smith lit the match and threw it at Vanston;

however, the flame set some paper on fire, and Smith and defendant extinguished

the flames.

Defendant and Smith put Vanston into the trunk of Vanston’s car. The

three men drove around searching for a place to leave Vanston. Smith suggested

leaving Vanston in the catch basin attached to the sewer behind Smith’s apartment

building. The men drove back to Smith’s apartment building.

Smith told defendant to stab Vanston with a knife, but defendant refused.

Crowder stabbed Vanston twice, and Crowder and Smith pushed Vanston into the

catch basin. All three men covered Vanston with dirt and then changed their

clothes and cleaned up the area. Vanston was still alive at that point but later died

of his injuries.

After disposing of Vanston, defendant drove Crowder and Smith to

Vanston’s residence and waited in the car while Crowder and Smith went inside

and retrieved four bags of items and a television. After Crowder and Smith took

those items to their houses with defendant’s assistance, Crowder told defendant he

had not ‘forgotten’ about him. The next morning, defendant picked up Crowder

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and they drove to a Gap store, where Crowder purchased clothing using

Vanston’s credit card. Defendant picked up Smith, and the three men used the

credit card to buy gas.

At trial, defendant testified that he participated in Vanston’s murder

because he was afraid of Crowder and Smith. ***

The jury found defendant guilty of first degree murder, aggravated

kidnaping, armed robbery and residential burglary and found that Vanston’s death

resulted from exceptionally brutal and heinous circumstances indicative of

wanton cruelty.” See Carter, No. 1-06-2510 (2008) (unpublished order under

Illinois Supreme Court Rule 23).

¶8 Defendant’s Sentencing Hearing

¶9 Defendant’s motion for new trial was denied after which his sentencing hearing

commenced.

¶ 10 Defendant submitted for consideration a sentencing memo which outlined his age, lack of

criminal history prior to the offense, education, employment, living situation, character, and

psychological characteristics. The memo discussed defendant’s participation in the offense, his

cooperation with the police, and behavior during his five years of incarceration. The memo

outlined various statutes relevant to defendant’s sentencing and highlighted mitigating factors

with citation to case law in the following areas: young age, lack of criminal history,

comparatively limited role in the offense, good family background and relationships, expression

of remorse, and positive adjustment to incarceration. The memo concluded with a discussion of

the cost of defendant’s incarceration. Affidavits of his father, four neighbors, and two Cook

County Jail corrections officers were attached to the memo along with the report of I. Bruce

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Frumkin, Ph.D. which analyzed defendant’s results from his Minnesota Multiphasic Personality

Inventory-2 (MMPI-2) and 16 Personality Factor (16 PF) psychological tests.

¶ 11 A Pre-Sentence Investigation Report (PSI) was also submitted outlining defendant’s date

of birth, lack of criminal history, discussion of the offense, defendant’s social history, familial

relationships, education, employment, physical and psychological health, drug use, involvement

in the community, and economic status. At sentencing, the trial court acknowledged having

reviewed these documents.

¶ 12 Argument from the State and defendant’s counsel was heard, and the State tendered the

victim impact statement from the victim’s sister, the contents of which were stipulated to by the

parties. Defendant offered a statement in allocution.

¶ 13 Prior to imposing defendant’s sentence, the trial court noted the jury found defendant’s

behavior “exceptionally brutal and heinous and indicative of wanton cruelty” which allowed the

trial court to impose discretionary extended term sentencing on the murder conviction of 60 to

100 years. The court indicated it agreed with the jury defendant’s actions “were brutal and

indicative of wanton cruelty.”

¶ 14 The trial court addressed defendant’s sentencing memorandum and commented on the

dual considerations in sentencing—the seriousness of the offense and the rehabilitation of the

offender—both of which, the court explained, were to be given weight.

¶ 15 The trial court commented on defendant’s argument he was lured to the premises under

false pretenses and had a comparatively limited role in the offense, stating:

“This is not false pretenses. This defendant knew exactly from the get-go

what was going to happen here[.] ***

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Further, the testimony here that he did not know what was going on. He

stood in a garage where two human beings poured gasoline on a victim who was

hog-tied, and they asked him, [defendant], standing [there] of his own free will,

do you have a match, a light; he had said no, but I’ve got a match, here. Is that

anything in regard to compulsion?

He knew at that time what was going on. To say to this Court now, today,

after the trial that he was here under false pretenses is absurd. He knew exactly

what he was getting into. He went there for a purpose, and that purpose was clear

based on his testimony and based on his videotaped statement. To get up now and

say that he was not liable or accountable, or a lesser degree of accountability, how

is that true?

To say in your memorandum that after a few weeks later he decided to

help the police? After they found him after four weeks, after they located him,

then he decided to help the police. And now this Court is supposed to take that

into consideration to lessen a sentence. That is absurd.

The comparative limited role of this offender, he was in it all the way. He

knew what was going on, he stayed there, he helped put this man in a trunk and

drive him around, he helped place him in the sewer, and then he went to the house

to steal whatever was there. Compulsion, the jury didn’t buy it and this Court

doesn’t buy it[.]”

¶ 16 The trial court commented on defendant’s character stating:

“To argue today that this defendant is passive, dependent, timid,

submissive; well, there was testimony in this case where this defendant told

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Gregory Crowder what to do. After they put that man in the sewer, he handed

Crowder his car keys and said go wait in the car. They and Miracle then drove

the car around.

He, this defendant was just as active, just as liable and just as in control as

those other individuals. The toxic influence of Crowder on [defendant] is absurd.

What happened to free choice and free will, what happened to individual

culpability, what happened for this man at any time to say I’m done, I’m out of

here?

When he hid behind that truck he knew he was going to tie up another

human being for the purposes of collecting a debt, and to tell this Court today

after trial that he did not know what was going on is absurd. It insults this Court’s

intelligence.

I ask rhetorically what was [defendant] thinking while he saw somebody

throw gasoline on an individual and then turn to him and say do you have a light.

Do you know what his answer was on cross examination: I knew he was either

going to burn the victim or the garage. And he still gave him the match.

To tell me he didn’t know what he was doing, and that’s even before this

alleged compulsion came in, to tell this Court today that he didn’t know what he

was doing, that he was a dupe, that he was there under false pretenses, my God,

what does it take a human being to say I’m out of here, chase me as far as you

want, I’m out of here; beat me up, but I’m not going to set another human being

on fire. Absurd.”

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¶ 17 The trial court commented on defendant’s good family and neighbors and discussed the

factors in aggravation and mitigation pursuant to Illinois statute. The court also commented

again on the seriousness of defendant’s crime stating it is “beyond brutal and heinous” and

further commenting it “cries out for punishment, and not the minimum term.” The court refused

to accept defendant was “the gullible person five years ago.”

¶ 18 After stating it considered all the factors in aggravation and mitigation, the trial court

sentenced defendant to 80 years for first degree murder, 20 years each for aggravated kidnapping

and armed robbery, and 10 years for residential burglary, and ordered the latter three

incarceration periods to run concurrently to each other and consecutive to the murder sentence

for a total of 100 years’ incarceration.

¶ 19 Following sentencing, defendant filed a motion to reduce his sentence arguing it was

excessive because:

“(a) This sentence fails to take adequate account of the many significant

mitigating factors brought to the Court’s attention prior to the imposition of

sentence, both in writing and orally, which included (i) the defendant’s young

age, (ii) his lack of any criminal history, (iii) his comparatively limited role in the

offense, (iv) his good family background and relationships, (v) his expressions of

remorse, and (vi) his positive adjustment to incarceration.

(b) This sentence fails to distinguish properly between Carter and co-

defendants Gregory Crowder and Miracle Smith for sentencing purposes.

Crowder was sentenced to a term of 72 years’ imprisonment following a guilty

plea; Miracle Smith was sentenced to a term of 100 years’ imprisonment

following a joint trial (before a different jury) with Carter. As detailed both in

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writing and orally prior to the imposition of sentence, a sentence far less severe

than either of those would be appropriate for Carter, given (i) his significantly

lesser culpability for this offense, and (ii) his significantly better prospects for

rehabilitation.

(c) This sentence fails to take adequate account of Carter’s extremely

favorable prospects for rehabilitation (as evidenced by, among many other things,

his positive adjustment to incarceration).”

¶ 20 Defendant’s motion was denied. On direct appeal, defendant argued he was denied a fair

trial due to contradictory and incorrect instructions to the jury. This court affirmed defendant’s

conviction and sentence. See Carter, No. 1-06-2510 (unpublished order under Illinois Supreme

Court Rule 23).

¶ 21 Postconviction Petition

¶ 22 On November 15, 2017, defendant filed a pro se postconviction petition pursuant to

section 5/122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2016)).

¶ 23 In his petition, defendant argued only that his 100-year sentence violated the eighth

amendment of the United States Constitution and the Proportionate Penalties Clause of the

Illinois Constitution because it was a de facto life sentence and the trial court failed to consider

defendant’s youth and its attendant characteristics in arriving at his sentence.

¶ 24 The trial court subsequently entered a judgment summarily dismissing defendant’s

postconviction petition finding defendant’s claims were “frivolous and patently without merit.”

¶ 25 This appeal followed.

¶ 26 ANALYSIS

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¶ 27 On appeal, defendant argues the trial court erred in summarily dismissing his

postconviction petition. Defendant argues the sentencing court did not consider his youth as a

mitigating factor or even reference it when it imposed the sentence, and the court explicitly

rejected the results from the personality tests that showed that defendant was passive, dependent

on others, timid, and submissive.

¶ 28 Defendant acknowledges he was not a juvenile at the time of his offense but argues his

100-year sentence is a de facto life sentence and that the protections afforded juveniles in

sentencing under Miller v. Alabama,

(2012), should be extended to him.

Specifically, defendant argues the sentencing court was required to consider the transient

qualities of youth and their enhanced amenability to rehabilitation under the eighth amendment

and the rehabilitation clause of Article I, Section 11 of the Illinois Constitution. Both of

defendant’s constitutional challenges are as-applied challenges.

¶ 29 Defendant’s petition was summarily dismissed at the first stage of postconviction

proceedings. Our review of the trial court’s judgment is de novo. People v. Patterson,

.

¶ 30 Post-Conviction Hearing Act

¶ 31 The Act provides a mechanism for collateral attack of a conviction or sentence allowing

for inquiry into constitutional claims relating thereto which were not, and could not be,

adjudicated during the trial or determined on appeal. 725 ILCS 5/122-1 et seq. (West 2016); see

also People v. House,

, ¶ 25. There is a three-stage process for

hearing such constitutional claims. Patterson,

.

“At the first stage, the circuit court independently reviews the petition and

determines whether the petition is frivolous or patently without merit. [Citations.]

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A petition may be summarily dismissed at the first stage as frivolous and patently

without merit ‘only if the petition has no arguable basis either in law or in fact.’

[Citation.] A petition lacks an arguable basis in law or fact if it is based on ‘an

indisputably meritless legal theory or a fanciful factual allegation.’ [Citation.]

Because most petitions at the first stage are drafted by defendants with little legal

knowledge or training, a defendant need only present a limited amount of detail in

the petition to survive summary dismissal by the circuit court. [Citation.] That is,

defendants only need to set forth the ‘gist’ of an arguably constitutional claim to

meet the relatively low factual threshold to satisfy the first stage under the Act.

[Citation.]” Id. at ¶ 15.

¶ 32 In first stage postconviction proceedings the defendant is not required to make “a

substantial showing of a constitutional violation” nor is the defendant required to “demonstrate”

or “prove” the alleged constitutional violation to avoid dismissal. People v. Tate,

. The allegations in the petition are to be taken as true and liberally construed.

People v. Brown,

(2010); People v. Plummer,

(2003).

¶ 33 Eighth Amendment Constitutional Challenges Applied to Juveniles

¶ 34 The eighth amendment prohibits “cruel and unusual punishments” and is applicable to the

states through the fourteenth amendment. U.S. Const. amend. VIII; People v. Davis,

.

“The eighth amendment’s ban on excessive sanctions flows from the basic

principle that criminal punishment should be graduated and proportioned to both

the offender and the offense. [Citations.] To determine whether a punishment is

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so disproportionate as to be ‘cruel and unusual,’ a court must look beyond history

to ‘the evolving standards of decency that mark the progress of a maturing

society.’ ”

¶ 35 Following a line of United States Supreme Court decisions applying the eighth

amendment’s ban on “cruel and unusual punishments” to juvenile sentences, the Court in Miller,

, held the imposition of a mandatory sentence of life without the possibility of

parole for a juvenile offender who commits murder without consideration of the defendant’s

youth and its attendant characteristics violates principles of proportionality and thus the eighth

amendment’s ban on cruel and unusual punishment.

. It was subsequently

decided Miller applied retroactively to cases on collateral review. See Montgomery v. Louisiana,

(2016); see also Davis,

.

¶ 36 Accordingly, Miller and Montgomery require the trial to consider the juvenile’s “youth

and its attendant characteristics” and find the conduct “showed irretrievable depravity,

permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation”

before the offender may be sentenced to life imprisonment without parole. People v. Holman,

; People v. Paige,

(“Although the trial

court in this case ‘weighed his rehabilitative potential as talked about here today,’ it did not

consider whether defendant was beyond rehabilitation so that he is one of ‘the rarest of juvenile

offenders *** whose crimes reflect permanent incorrigibility.’ [Citations.]”). In conducting this

analysis, the Court in Miller outlined a nonexclusive list of characteristics to be considered by

the sentencing court.

These characteristics were later memorialized in Holman in a set of

factors, referred to as the “Miller factors,” and are as follows:

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“(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.”

citing Miller,

.

¶ 37 Miller Protections Extended to Discretionary and De Facto Life Sentences

¶ 38 In People v. Reyes,

, our supreme court extended Miller protections,

finding that sentencing a juvenile offender to a de facto life sentence constitutes cruel and

unusual punishment in violation of the eighth amendment. Reyes,

. In

Holman, our supreme court again extended Miller protections to include not just juvenile

mandatory de facto life sentences, but also juvenile discretionary de facto life sentences.

Holman,

. Thereafter, our supreme court in People v. Buffer,

, determined what constitutes a de facto life sentence for a juvenile and drew the line at

40 years concluding such “a prison term is long enough to be considered de facto life without

parole” for juvenile offenders. Id. at ¶ 40.

¶ 39 Miller Protections Sought by Young Adults

¶ 40 In People v. Thompson,

, and People v. Harris,

, our

supreme opened the door to the availability of Miller protections to young adult offenders

bringing an “as applied” challenge to their life sentence, ruling that such cases required an

evidentiary hearing to determine whether Miller applies in a given case. In Thompson, our

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supreme court was asked to determine whether the “defendant’s as-applied [eighth amendment]

constitutional challenge to his sentence is procedurally barred or forfeited because the defendant

failed to include [the as-applied challenge to his mandatory natural life sentence under Miller] in

his 2-1401 [(735 ILCS 5/2-1401 (West 2010))] petition.” Thompson,

. On

appeal of the dismissal of his 2-1401 petition, the defendant, who was 19 at the time of his

offense, requested for the first time, the rationale of Miller be extended beyond minors under the

age of 18 to find his sentence unconstitutional. Id. ¶ 17.

¶ 41 The appellate court affirmed the trial court’s dismissal of the defendant’s petition,

declining to address the substance of his Miller claim, finding the as-applied challenge

procedurally barred. Id. ¶ 18. The Thompson court affirmed the appellate court’s decision on

the basis that the defendant’s as-applied constitutional challenge to his sentence was forfeited as

it “is not a claim recognized by any of our precedents as exempt from the typical procedural bars

of section 2-1401.” Id. ¶ 35. While concluding the “defendant cannot raise his as-applied

constitutional challenge to his sentence under Miller for the first time on appeal from dismissal

of his section 2-1401 petition,” the court stated, without expressing opinion on the merits of any

future claim, the defendant “is not necessarily foreclosed from renewing his as-applied

challenged in the circuit court” in a subsequent proceeding under “the Post-Conviction Hearing

Act (725 ILCS 5/122-1 et seq. (West 2012)) *** expressly designed to resolve constitutional

issues, including those raised in a successive petition.” Id. ¶ 44.

¶ 42 In Harris, our supreme court further opened the door for the extension of Miller

protections to young adults under both the eighth amendment to the United States Constitution,

(U.S. Const., amend. VIII) and article I, section 11 of the Illinois Constitution (Ill. Const. 1970,

art. I, § 11) “commonly referred to as the proportionate penalties clause.” Harris, 2018 IL

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121932, ¶¶ 34-61. The defendant in Harris was convicted of first-degree murder, attempt first-

degree murder, and aggravated battery with a firearm and was sentenced to a mandatory

minimum aggregate term of 76 years’ imprisonment. Id. at ¶ 1. The defendant was 18 years, 3

months of age at the time of his offenses. Id. The defendant appealed his sentence raising an as

applied challenge under the Proportionate Penalties Clause and a facial eighth amendment

challenge. Id. at ¶¶ 37, 53. In analyzing both constitutional claims the court noted the “critical”

distinction between facial and as applied challenges stating:

“A party raising a facial challenge must establish that the statute is

unconstitutional under any possible facts, while an as-applied challenge requires a

showing that the statute is unconstitutional as it applies to the specific facts and

circumstances of the challenging party. [Citations.]

All as-applied constitutional challenges are, by definition, dependent on

the specific facts and circumstances of the person raising the challenge.

Therefore, it is paramount that the record be sufficiently developed in terms of

those facts and circumstances for purposes of appellate review. [Citations.] We

have reiterated that:

A court is not capable of making an as-applied determination of

unconstitutionality when there has been no evidentiary hearing and no

findings of fact. [Citation.] Without an evidentiary record, any finding

that a statute is unconstitutional as-applied is premature. [Citations.]”

(Internal quotations marks omitted.) Id. at ¶¶ 38-39, 52-53.

¶ 43 With respect to the defendant’s as-applied challenge under the Proportionate Penalties

Clause, the Harris court explained because the defendant’s as applied claim was not raised in the

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trial court and he was a young adult such that “Miller does not apply directly to his

circumstances[,]” the record needed to “be developed sufficiently to address defendant’s claim

that Miller applied to his particular circumstances.” Id. at ¶¶ 45-48. The Harris court declined

to remand the matter for an evidentiary hearing and, as in Thompson, stated the defendant’s

claim could more appropriately be brought in another proceeding under the Act which

specifically allows for raising constitutional questions dependent on facts not found in the record.

Id. at ¶ 48.

¶ 44 The court concluded the defendant’s eighth amendment facial challenge, arguing the

protections for juveniles recognized in Miller should be extended to all young adults under the

age of 21, also failed. Id. at ¶¶ 53-61. Here, the court stated:

“[F]or sentencing purposes, the age of 18 marks the present line between

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

line. Accordingly, defendant’s facial challenge to his aggregate sentence under

the eighth amendment necessarily fails.” Id. at ¶ 61.

¶ 45 While unequivocally closing the door on eighth amendment facial challenges to young

adults based on Miller, Harris does not foreclose an as-applied Miller challenge by a young

adult offender.

¶ 46 As was set forth by this court in People v. Ruiz,

, our supreme

court’s precedents set out the following procedure for young adults raising a claim that Miller

protections apply to them:

“(i) under Harris, a young adult defendant must plead, and ultimately

prove, that his or her individual characteristics require the application of

Miller;

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(ii) if, and only if, the young adult makes this showing, then the trial court

goes on to consider whether the initial sentencing hearing complied with

Miller, ***; and

(iii) if the initial sentencing hearing was Miller-compliant, then the trial

court can reject the defendant’s claim ***; or if the initial sentencing

hearing was not Miller-compliant, then the trial court should order

resentencing.”

.

¶ 47 Defendant’s As-Applied Constitutional Challenges

¶ 48 As instructed by Harris and Thompson, defendant has raised his as applied constitutional

challenges to his sentence under the eighth amendment and Proportionate Penalties Clause in a

postconviction proceeding under the Act. Defendant argues his 100-year sentence is a de facto

life sentence which “[a]s applied to [defendant] is invalid and violates [his] Eighth Amendment

rights and the proportionate penalties clause of the Illinois Constitution.” In support of his

argument defendant cites various United States Supreme Court cases, including Miller, finding

juvenile life sentences without consideration of the defendant’s youth to be violative of the

eighth amendment based on scientific research on adolescent brain development which has

established juveniles lack maturity, are more vulnerable to bad influences, and are more

amenable to rehabilitation. He further notes cases recognizing that, while courts have drawn a

line between juveniles and adults at 18, that line is arbitrary and the qualities distinguishing

juveniles from adults do not automatically disappear when the individual turns 18.

¶ 49 Defendant cites House and its application of the rationale in Miller to find the defendant’s

life sentence in that case unconstitutional where the defendant was 19 at the time of his offense

and the sentencing court did not consider the Miller factors. Defendant also highlights portions

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of the House findings which focused on research establishing that the brain does not finish

development until mid-20s making young adults similar to adolescents with respect to their

susceptibility to peer pressure, less future-oriented, and more volatile in emotionally charged

settings.

¶ 50 The State argues “Defendant’s as-applied proportionate penalties challenge fails as a

matter of law because adult defendants, such as himself, cannot claim Miller-based protection to

challenge their discretionary sentences.” (Emphasis in original.) The State contends this is

because Harris and Thompson involved mandatory life sentences and “the rationale underlying

the holdings in both cases is exclusively driven by the fact that a mandatory statutory scheme

that requires imposition of a life or de facto life sentence prevents sentencing courts from

considering the individual circumstances of youthful offenders.” We disagree with the State.

¶ 51 In Holman our supreme court held Miller applies to discretionary sentences of life

without parole for juvenile defendants. Holman,

. This court sees no

reason to depart from Holman’s rationale when dealing with a young adult raising a

constitutional claim similarly rooted in the reasoning espoused in Miller against a discretionary

de facto life sentence. Additionally, defendant’s 100-year sentence is well beyond the 40-year

floor established in Buffer for juvenile de facto life sentences. See Buffer,

. We point to Justice Burke’s special concurrence in Buffer explaining a de facto life

sentence can be calculated by determining when “the defendant’s age at the earliest projected

time of release exceeds an incarcerated minor’s average life expectancy” such that a maximum

sentence imposed on juveniles would allow release at age 55 based on the average life

expectancy of incarcerated individual’s statistics. Id. at ¶¶ 65-67. This suggested de facto life

sentence calculation gives credence to defendant’s as-applied challenge where his 100-year

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sentence began in his early twenties. At minimum, we cannot say defendant’s legal theory has

no arguable basis in law.

¶ 52 The State also argues that even if we conclude there is merit to defendant’s argument

Miller and its progeny could apply to him, as we have here, defendant’s postconviction claim

nevertheless fails because the record “affirmatively establishes that the sentencing court

considered defendant’s age and individual circumstances before imposing the aggregate 100-year

sentence” and thus, “defendant was already afforded the relief he seeks (i.e., the application of

Miller protections to a 20-years-and-9months-old defendant subject to discretionary

sentence)[.]”). Accordingly, the State contends defendant’s petition has no arguable basis in fact

and was properly dismissed. We disagree with this contention.

¶ 53 With respect to this argument, the State argues Holman requires this court to look at the

cold record in this case to determine whether the Miller factors were considered. The State goes

on to conclude “the record shows that the court considered the Miller factors that the Illinois

Supreme Court articulated in Holman, and therefore defendant received the benefit of those

protections.”

¶ 54 We acknowledge our supreme court in Holman,

, and more recently in

People v. Lusby,

, considered the question of whether the defendants in those

cases—both juveniles when their crimes were committed—received constitutionally adequate

life sentences where their sentencing hearings were held before Miller was decided. Both cases

involved appeals from the denial of a motion for leave to file a successive postconviction

petition. Holman,

; Lusby,

. In Lusby the State argued

the defendant’s sentencing hearing complied with Miller and, as such, the defendant could not

show prejudice. Id. ¶ 30. The Lusby court went on to outline portions of the record considered

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by the sentencing judge relevant to each Miller factor concluding the defendant’s youth and

attendant characteristics were considered before Lusby’s life sentence was issued and, as such,

no prejudice was suffered due to the denial of Lusby’s motion for leave to file a successive

postconviction petition. Id. at ¶¶ 36-52. In Holman, the court, having concluded Miller

applicable to the discretionary life sentence received by Holman, the court went on to identify

and assess whether the five Miller factors had properly been considered by the sentencing judge

in issuing Holman’s life sentence. Id. at ¶¶ 40, 46-50.

¶ 55 We find Holman and Lusby distinguishable. First, Holman and Lusby dealt with

successive postconviction petitions where the burden was to show both cause and prejudice,

unlike defendant here who, at first stage proceedings, need only make a gist of an arguably

constitutional claim. See Patterson,

. As noted above, at this

stage, defendant is not required to make “a substantial showing of a constitutional violation” or

“prove” the alleged constitutional violation. Tate,

. Additionally, this

court may not engage in any factual determinations. Plummer,

.

¶ 56 Second, and even more significant, the defendants in Holman and Lusby were juveniles at

the time of their offenses unlike defendant here. As pointed out by this court in Ruiz, because the

defendant in Holman was a juvenile Miller presumptively applied whereas an adult seeking

Miller protections—as defendant does here—”must make a preliminary showing before the court

undertakes a Holman analysis—that is, establish Miller applies to [the defendant] in the first

place.” Ruiz,

. The Ruiz court explained that while the Miller

factors as set forth in Holman “undoubtedly lie ahead” this is only the case if the defendant can

make a showing Miller applies to him. We must remand to allow defendant to put forward

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evidence to support this claim. See id. at ¶ 48. “We find considering Holman now puts the

proverbial cart before the horse.” Id. at ¶ 52.

¶ 57 Defendant’s petition was summarily dismissed as being frivolous and patently without

merit by the trial court in first stage proceedings. We are tasked with determining whether

defendant’s petition set forth a gist of an arguably constitutional claim that is not based on an

indisputably meritless legal theory or fanciful allegations. See Patterson,

. We find defendant’s postconviction petition is not based on fanciful factual

allegations. Application of Miller requires a sentencing court to consider the defendant’s youth

and attendant characteristics and to determine that the defendant is “the rare juvenile offender

whose crime reflects irreparable corruption” ((Internal quotation marks and citations omitted.)

Montgomery v. Louisiana,

(2016)) before issuing a life or de facto life

sentence. Holman,

. Despite the trial court’s consideration of voluminous

evidence in mitigation of defendant’s sentence, including evidence related to some of the Miller

factors, the trial court did not find defendant was incorrigible. The trial court did consider

defendant’s rehabilitative potential. However, the trial court did not find defendant was that

rarest of individuals for whom a court may forswear altogether the rehabilitative ideal because he

forever will be a danger to society by imposing a life sentence. See Montgomery, 136 U.S. at

733-34; supra, ¶ 17.

¶ 58 Nor is defendant’s petition based on an indisputably meritless legal theory. There are

now a number of Illinois appellate court opinions reversing first-stage summary dismissals and

denials of motions seeking leave to file a successive postconviction petition finding life and de

facto life sentences of defendants who were young adults at the time of their offense could be

deemed unconstitutional where their youth and rehabilitative potential had not been considered.

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See, e.g. House,

, ¶¶ 63-64; People v. Savage,

(finding the trial court did not consider the attributes of young adulthood,

explaining “We do not fault the sentencing judge. He could not have looked into a crystal ball in

1995 and have foreseen the statements concerning young adulthood that his court would later

make [with respect to the still developing young adult brain]”); People v. Franklin,

; People v. Daniels,

(stating “In the

past five years *** our supreme court has twice acknowledged that young adults—at least those

who were 20 years of age or younger at the time of their crimes—may still rely on the evolving

neuroscience and societal standards underlying the rule in Miller to support as-applied challenges

to life sentences brought pursuant to the Illinois proportionate penalties clause.”); Ruiz,

; People v. Johnson,

; People v.

Bland,

; People v. Carrasquillo,

; People v. Minniefield,

.

¶ 59 As explained above, the petition filed in this case is not based on an indisputably

meritless legal theory or fanciful allegations. We find defendant’s constitutional claim has an

arguable basis in fact and law. Defendant has met the low bar at this first stage where he is not

required to prove his case and his allegations are to be accepted as true, has made the gist of an

arguably constitutional claim that his sentence violates the Proportionate Penalties Clause as

applied to him. See

Therefore, we reverse the trial court’s summary dismissal of defendant’s

postconviction petition and remand the cause back to the trial court for second stage proceedings

to give defendant an opportunity to establish that Miller applies to him.

¶ 60 We emphasize that our conclusion here does not in away way diminish the seriousness of

the crimes for which defendant was convicted. We express no opinion as to the actual merits of

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defendant’s petition. Instead, we conclude only that defendant’s postconviction petition should

be advanced to the second stage of postconviction review.

¶ 61 CONCLUSION

¶ 62 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed

and remanded for appointment of postconviction counsel and second stage postconviction

proceedings.

¶ 63 Reversed and remanded, with instructions.

¶ 64 JUSTICE BURKE, specially concurring.

¶ 65 I agree with the majority’s conclusion that remand is warranted in this case for further

proceedings based on the supreme court’s decision in People v. Harris,

and the

numerous cases of this court interpreting Harris. However, I write separately in order to highlight

a concerning trend that I have observed in the wake of the supreme court’s decision in Harris as

exemplified by the decision in the case at bar. In Harris, in addressing the young adult defendant’s

proportionate penalties challenge to his sentence based on Miller v. Alabama,

(2012)

on direct appeal, the court found that the defendant’s claim was premature because the record did

not contain evidence about how the defendant’s brain development had been delayed such that

Miller applied to his specific facts and circumstances. Harris,

. The court

found, however, that the defendant was “not necessarily foreclosed” from raising his as-applied

constitutional challenge in another proceeding and specifically identified the Post-Conviction

Hearing Act as a mechanism “designed to resolve constitutional issues.” Id. ¶ 48. The court

concluded that the defendant’s claim would be more appropriately raised in another proceeding,

such as a postconviction petition, but the court expressed no opinion on the merits of defendant’s

claim. Id.

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¶ 66 Relying on this conclusion, dozens of panels of this court have reversed first stage summary

dismissals of postconviction petitions and denials of petitions for leave to file successive

postconviction petitions brought by young adult offenders alleging proportionate penalty

challenges under Miller and its progeny. See, e.g., People v. Savage,

(initial petition); People v. Minniefield,

(successive petition); People v.

Johnson,

(successive petition). In the majority of these cases, including

the case at bar, the young adult defendant does not submit any documentation or affidavits or other

evidence showing that his specific brain development has been delayed and that Miller applies to

his specific facts and circumstances, but instead raises blanket challenges to his sentence based on

his young age and the “evolving science on brain development.” See, e.g., Savage,

, People v. Ruiz,

; People v. Daniels, 2020 IL

App 171738, ¶ 9. These are the same sort of generalized allegations that the supreme court found

problematic in Harris. Nonetheless, this court has routinely remanded for further proceedings

offering the defendant an opportunity to develop the record to show how Miller may apply to his

specific facts and circumstances. Supra ¶ 59; see also, e.g., Ruiz,

;

Johnson,

. These rulings, like the decision in Harris, provide no

instructions for how the defendant may make such a showing or provide any other standard. It is

unclear whether defendant must present affidavits or medical records or even expert testimony to

demonstrate how this evolving science on brain development applies specifically to him. It is clear,

however, that “basic information” about defendant’s education, drug use, and background, such as

that contained in a presentence investigation report, is insufficient to carry defendant’s burden.

Harris,

.

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¶ 67 We are therefore left with a situation where this court is issuing virtually blanket remands

with absolutely no indication of how the defendant may meet his burden on remand. More

troubling still is that defendants are filing these petitions and this court is granting these remands

without any indication that these young adult defendants could meet whatever that nebulous

burden may be. On this point, I find the fifth district court’s recent decision in People v. White,

illustrative. Although that case involved a successive postconviction

petition and the court analyzed defendant’s claim under the stricter cause-and-prejudice standard,

I find the court’s explanation of why defendant failed to meet his burden to file his successive

petition is relevant here. In White, this court found the defendant’s “flat allegation as to evolving

science on juvenile maturity and brain development” was insufficient to satisfy his burden to file

a successive petition. Id. ¶ 24. The court continued:

“Other than generally asserting studies that show that sometimes youthfulness can

extend into a person’s twenties, the defendant does not now allege how he was particularly

affected by any immaturity, and it is undisputed that he did not suffer from any cognitive

or developmental impairments. Further, the allegations relating to his family history do not

rise to the level of special circumstances that would provide a compelling reason to advance

his successive postconviction petition.” Id.

The court concluded that the defendant’s contentions amounted to a claim that the sentencing court

did not adequately consider his youth in sentencing, which was more akin to a claim that the

sentencing court abused its discretion rather than a constitutional claim cognizable under the Post-

Conviction Hearing Act. Id. ¶ 30.

¶ 68 I find the ruling in White well-reasoned and would suggest that the same analysis could

also be applied to initial postconviction petitions. Although, as the majority discusses at length,

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the bar for surviving first stage proceedings on initial postconviction petitions is not onerous, I

believe the defendant still should be required to present some evidence or documentation

suggesting that if the matter proceeded to an evidentiary hearing, defendant would be able to

present some evidence that his brain development had been delayed and that Miller applied to his

specific facts and circumstances as required for an as-applied constitutional challenge. Indeed,

section 122-2 of the Post-Conviction Hearing Act requires the petitioner to either attach affidavits,

records, or other evidence supporting the allegations or explain their absence. 725 ILCS 5/122-2

(West 2016). The limited material defendant attached to his petition in this case cannot be said to

support his assertion that his brain development was delayed such that Miller applies to his specific

facts and circumstances.

¶ 69 The majority in this case seems to suggest, however, based in part on this court’s rulings

in House and Ruiz, that any young adult petitioner who raises as an as-applied proportionate

penalties challenge to his life or de facto life sentence under Miller is automatically entitled to an

evidentiary hearing provided they make some general claim regarding the evolving science on

brain development. That simply cannot be the standard. For its part, House involved an

extraordinary set of circumstances and I do not believe the reasoning in that case is applicable in

the case at bar. The defendant in House was 19 years old and, because of the sentencing structure,

was sentenced to a mandatory life sentence despite the fact that he acted only as the lookout while

members of his gang shot two individuals. House,

, ¶¶ 5, 14, 17, 19.

The House court distinguished the supreme court’s ruling in Harris by noting that the defendant

in Harris was the “actual shooter,” while defendant House was convicted under a theory of

accountability. Id. ¶ 32. Notably, in House, the court did not merely remand for further

postconviction proceedings to give the defendant an opportunity to develop the record, but instead

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vacated defendant’s sentence outright and remanded for a new sentencing hearing. Id. ¶ 65. In

reaching this conclusion, the House court relied extensively on the supreme court’s decision in

People v. Leon Miller,

(2002) (Leon Miller). In Leon Miller, the supreme court

found that a juvenile defendant’s mandatory sentence of natural life imprisonment violated the

proportionate penalties clause where the defendant was convicted under a theory of accountability.

. The 15-year-old defendant in Leon Miller, like the defendant in House, acted as a

lookout during the shooting, but never handled a gun.

. Nonetheless, he was sentenced to

a mandatory term of life imprisonment without the possibility of a parole.

The supreme court

found that such a sentence “grossly distort[ed] the factual realities of the case and [did] not

accurately represent defendant’s personal culpability.”

With regard to the defendant’s

culpability, the supreme court stated that the defendant was “the least culpable offender

imaginable, a 15-year-old who had ‘about a minute from the time this plan began until the act was

completed by other persons.’ ”

¶ 70 In this case, defendant was “far from the ‘least culpable offender imaginable.’ ” White,

. Rather, defendant conspired with his co-defendants to tie up and

rob Vanston and knew before Vanston arrived at the apartment that Smith and Crowder intended

rob him. When Vanston arrived, Smith forced Vanston to the ground and defendant tied up

Vanston’s arms and legs. He then helped Crowder and Smith carry Vanston to the garage. The

men then beat Vanston with a crowbar despite Vanston telling them that he would give them

whatever they wanted and begging for his life. Smith then poured gasoline on Vanston and

defendant provided Smith with a match in order to light Vanston on fire. Defendant testified that

he knew that Smith was either going to burn Vanston or the garage, but he supplied him with the

match anyway. After putting out the fire because some paper nearby caught fire, defendant helped

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Smith put Vanston into the trunk of Vanston’s vehicle. After Crowder stabbed Vanston twice,

defendant helped Smith and Crowder bury Vanston alive near a sewer where Vanston later died

of his injuries. Defendant then helped Crowder and Smith burgle Vanston’s residence. The next

day, defendant and his co-defendants used Vanston’s credit card to purchase clothing and gasoline.

Defendant was therefore an active participant in the crime and physically committed the offense.

As this court noted in People v. Handy, “[w]hether 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.” People v. Handy,

(citing People v. Pittman,

). The extraordinary

circumstances in House, a minimally involved 19-year-old defendant and a mandatory life

sentence, are not present in this case, and I believe the majority erred in relying on the reasoning

in that case here. 1

¶ 71 Rather than representing a sea change in the way this court analyzes and resolves as-

applied, Miller-based constitutional challenges by young adult offenders, I believe House was an

1 I note that Ruiz, which the majority cites with approval, disagrees with the distinguishing factors in House—the defendant’s level of participation in the offense and whether the sentence was discretionary or mandatory—that this court identified in Handy. Handy,

. However, I believe that Ruiz was wrongly decided and should not be followed. Numerous cases from this court have distinguished House on exactly those grounds and I find the reasoning in those cases to be persuasive. See, e.g., White,

(distinguishing the ruling in House on the basis that the defendant was the principal and not convicted under a theory of accountability); People v. Ramsey,

(same); see also, Pittman,

(distinguishing the ruling in House on the basis that the defendant was the principal and not convicted under a theory of accountability); Thomas,

(same); People v. Ybarra,

(same). In addition, the young adult defendant in Ruiz was sentenced to a 40-year term. Even if the offender in Ruiz were a juvenile, his 40-year sentence would not have been a de facto life sentence and he would not have been entitled to Miller-based sentencing protections. People v. Buffer,

. Rather than follow this precedent, the Ruiz court adopted an “age of release” standard in determining that Ruiz’s 40-year sentence amounted to a de facto life sentence. Ruiz,

. This flawed reasoning is yet another reason that I believe Ruiz should not be followed. - 29 - 1-18-0191

outlier, decided on its specific facts and circumstances with limited applicability to other situations.

I would also be remiss if I did not mention that the supreme court granted the State’s petition for

leave to appeal in House. People v. House, No. 125124 (Jan. 29, 2020). Perhaps that decision,

which is currently pending before the supreme court, will provide further guidance for this court

and the circuit courts in resolving these types of claims. In the interim, it appears the most practical

solution is to do as the majority in this case has done and remand for further proceedings. Although

there will undoubtedly be many meritless evidentiary hearings, the supreme court’s ruling in

Harris suggests that young adult defendants should be afforded an opportunity to show that Miller

applies to their specific facts and circumstances at an evidentiary hearing. Accordingly, I find that

defendant in this case should be afforded that opportunity and I concur with the majority’s decision

to remand.

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