No. 1-17-2314 Order filed February 8, 2021 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

) Appeal from the Circuit Court THE PEOPLE OF THE STATE OF ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) No. 01 CR 18452 (01) v. ) ) TYRONE BREWER, JR., ) The Honorable ) Kenneth J. Wadas, Defendant-Appellant. ) Judge, presiding. )

JUSTICE HYMAN delivered the judgment of the court. Presiding Justice Walker concurred in the judgment. Justice Pierce dissented.

ORDER

¶1 Held: Defendant’s pro se petition for leave to file a successive postconviction petition established a prima facie case of cause by showing that the law as well as neurological science that serves as the basis for his claim were unavailable until after his sentencing and his previous postconviction petition; defendant established prejudice because the law and the science demonstrate his 80-year sentence may be unconstitutional under the proportionate penalties clause.

¶2 Tyrone Brewer appeals from the circuit court’s denial of leave to file a successive post-

conviction petition. A jury convicted Brewer of first degree murder and personally discharging No. 1-17-2314

a firearm that proximately caused the victim’s death. The trial court sentenced Brewer to 50

years’ imprisonment for first degree murder and an additional consecutive 30 years’

imprisonment for personally discharging a firearm. Brewer was barely 18 years old at the time

of the offense.

¶3 After this court affirmed Brewer’s conviction on direct appeal and the denial of his post-

conviction petition stood, Brewer sought leave of the trial court to file a successive post-

conviction petition. In his pro se petition, Brewer asserted both cause for failure to raise a

constitutional claim and prejudice because (i) his 18-year-old brain was like a juvenile brain;

(ii) the trial court did not properly consider his youth at the sentencing hearing; and (iii) he

received a de facto life sentence.

¶4 We reverse and remand for further postconviction proceedings so Brewer can develop his

claim. Brewer made a prima facie case of cause by showing that the law and the neurological

science that serves as the basis for his claim were unavailable until after his sentencing and his

previous postconviction petition. Also, Brewer established prejudice because the law and the

science demonstrate his 80-year sentence may be unconstitutional under the proportionate

penalties clause.

¶5 Background

¶6 We set out the pertinent facts developed at trial in People v. Brewer,

, and need not repeat them. At the sentencing hearing, two victim impact

statements from the victim’s mother and father were presented. A presentence investigation

report indicated Brewer had a supportive family, happy childhood, and was “very close” to his

mother and sisters. Brewer had no health or psychological issues, although he had been

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diagnosed with depression after being beaten by police officers in March 2001. Brewer’s

mother and cousin spoke on his behalf in mitigation. Brewer declined to address the court.

¶7 The trial court found none of the statutory factors in mitigation applied except perhaps “the

attitudes of the defendant” could indicate he was unlikely to commit another crime. In

aggravation, the court found (i) Brewer’s conduct inflicted serious harm; (ii) he had a history

of criminal activity, although minimal; and (iii) the sentence was necessary to deter others from

committing the same crime. The trial court sentenced Brewer to 50 years’ imprisonment for

first degree murder (30 years over the minimum) and an additional consecutive 30 years’

imprisonment (5 years over the minimum) for personally discharging a firearm.

¶8 On direct appeal, we reversed Brewer’s conviction and remanded. People v. Brewer, No.

1-07-2821 (2010) (unpublished order under Supreme Court Rule 23). The State sought leave

to appeal to the Illinois Supreme Court. The supreme court denied the petition and remanded

for us to reconsider in light of People v. Thompson,

(2010). On remand, this

court affirmed the trial court’s judgment. People v. Brewer,

.

¶9 On April 4, 2014, Brewer filed his first pro se petition for post-conviction relief. On June

20, 2014, the trial court summarily dismissed the petition as frivolous and patently without

merit. Appointed appellate counsel moved to withdraw under Pennsylvania v. Finley,

(1987). After reviewing the motion and memorandum, we affirmed the summary

dismissal. People v. Brewer,

.

¶ 10 On March 22, 2017, Brewer sought leave to file a successive post-conviction petition,

which is the subject of this appeal. As support, Brewer invoked the protections accorded to

juveniles in Miller v. Alabama, 567, U.S. 460 (2012). Citing People v. House,

(House I) and People v. Nieto,

, Brewer also argued that

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the judge failed to consider “social science factors” and his “age-related characteristics” at

sentencing.

¶ 11 On March 23, 2020, the Illinois Supreme Court vacated the judgment in Nieto, and directed

the appellate court “to consider the effect of this Court’s opinions in People v. Buffer,

, and People v. Holman,

, on the issue of whether defendant’s sentence

constituted a de facto life sentence in violation of the Eighth Amendment and Miller v.

Alabama,

(2012), and determine if a different result is warranted.” On June

30,2020, this court reached the same result, vacating the sentence of 78 years’ imprisonment

and remanding for resentencing. See People v. Nieto,

, ¶ 2, ¶ 61.

¶ 12 The trial court denied leave to file the successive postconviction petition, finding that

neither Miller, Nieto, nor House applied to Brewer, who was over 18 at the time of the murder.

The trial court also noted that, unlike the defendant in House, Brewer had received a

discretionary sentence after the trial court considered all mitigation. Brewer now appeals from

denial of leave to file his petition.

¶ 13 We reverse. At this stage, Brewer is not, as the State contends, required to conclusively

prove that his claim has merit or that his sentence was unconstitutional. At this stage, he has to

allege “enough facts to warrant further proceedings on his claim that the tenets of Miller apply

to him.” Bland,

. And Brewer has satisfied that threshold.

¶ 14 Analysis

¶ 15 Standard of Review

¶ 16 Our review of the trial court’s decision to deny leave to file a successive postconviction

petition is de novo, accepting all well-pled facts and affidavits as true. People v. Edwards,

.

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¶ 17 Successive Postconviction Petition

¶ 18 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) allows a

petitioner to raise claims that his or her constitutional rights were violated in the original trial

or sentencing proceedings. People v. Pitsonbarger,

(2002). The Act allows

the filing of only one postconviction petition.

. Any claim not raised in the initial

petition is waived (id. at 459; see also 725 ILCS 5/122-3 (West 2018)), except where a

defendant (i) shows cause for, and prejudice from, failing to raise the claim in the initial

petition or (ii) makes a colorable claim of actual innocence. Pitsonbarger,

-

60. A petitioner must obtain leave of court as well as submit enough in the way of

documentation to allow the trial court to determine if the petition adequately alleges facts to

make a prima facie showing of cause and prejudice. People v. Bailey,

.

¶ 19 The trial court denied Brewer’s motion. Brewer now contends that he should have the

opportunity to develop a record in his post-conviction proceedings to make his as-applied

challenge. Such a challenge “requires a showing that the statute is unconstitutional as it applies

to the challenging party’s specific circumstances.” People v. Harris,

.

Brewer argues that imposition of a “de facto” life term for an 18-year-old violated the Eighth

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

Illinois Constitution. U.S. Const., amend. VIII; Ill. Const. 1970, § 11. Brewer claims his pro

se successive postconviction petition established both cause and prejudice.

¶ 20 The State counters that Brewer did not make the requisite showing of cause and prejudice,

citing People v. Edwards,

. Although the petitioner in Edwards did not

advance a cause and prejudice claim, the supreme court held that under either exception, the

petitioner must obtain leave of court and “submit enough in the way of documentation to allow

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a circuit court to make that determination.” (Internal quotations omitted.)

(quoting People

v. Tidwell,

(2010).

¶ 21 Cause for Failure to Raise Constitutional Claim

¶ 22 “A defendant may establish 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.” 725

ILCS 5/122-1(f) (West 2018).

¶ 23 In 2014, Brewer filed his first postconviction petition. It raised several claims: (i)

ineffectiveness of trial counsel in two instances; (ii) ineffectiveness of appellate counsel; (iii)

trial court error; and (iv) the Illinois Supreme Court’s supervisory order resulted in an ex post

facto violation. But at that time, Brewer could not have raised a specific claim based on Miller

and its progeny.

¶ 24 Miller had already established that life without parole for juvenile offenders violated the

eighth amendment’s prohibition against cruel and unusual punishment, except where the crime

reflects irreparable corruption. But Illinois courts did not extend the reach of Miller to adult

defendants until recently. For example, in People v. Minniefield, the defendant claimed he had

established the cause and prejudice needed to file a successive postconviction petition. People

v. Minniefield,

. His petition raised a single claim nearly

identical to Brewer’s. In Minniefield, the defendant asked whether “in light of recent law and

developing science, his sentence of 50 years without the possibility of parole was

unconstitutional as applied to him, where he was only 19 years old at the time of the offense,

with no violent criminal history or gang affiliation and with a stable family and work history.”

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¶ 25 A similar claim was made in People v. Carrasquillo,

, where the

defendant was convicted of first-degree murder of a Chicago police officer committed just five

months after he turned 18. He received a sentence of an indeterminate term of 20 years to life.

In 2018, Carrasquillo raised an as-applied challenge to his de facto life sentence and sought

leave to file the successive postconviction petition based on Harris,

. This

court found Carrasquillo satisfied the cause and prejudice test, one that he could not have raised

in his first petition since Miller had not yet been decided.

¶ 26 As in Minniefield and Carrasquillo, we find Brewer established cause in that when he filed

his initial post-conviction petition in 2014, he could not have anticipated the line of cases

expanding the holding of Miller.

¶ 27 Prejudice from Failure to Raise a Constitutional Claim

¶ 28 Brewer also argues that he established “prejudice” by making a prima facie as-applied

Miller challenge by alleging: (1) his 18-year-old brain was like a juvenile brain; (2) he

received a de facto life sentence; and (3) his youth was not properly considered at his

sentencing hearing. Both Harris,

, and People v. Thompson,

, recognized that 18- or 19-year old offenders can present scientific

evidence that their brains were like juvenile brains through the post-conviction process, to

establish that Miller’s juvenile sentencing protections apply.

¶ 29 Both Harris and Carrasquillo recognize that a trial court’s ruling without a developed

record is “premature.” Harris,

; Carrasquillo,

. As stated in Carrasquillo, a defendant may show prejudice by establishing a “ ‘catch-

22’—without a developed record, he cannot show his constitutional claim has merit, and

without a meritful claim, he cannot proceed to develop a record.” Carrasquillo, 2020 IL App

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(1st) 180534, ¶ 109. This court found in People v. Johnson,

, and

People v. Ruiz,

that the petitioners made prima facie showings in

their pleadings that evolving understandings of the brain psychology of adolescents required

Miller to apply to them.

¶ 30 Most recently, Minniefield recognized the eighth amendment’s prohibition of cruel and

unusual punishment that “ ‘guarantees individuals the right not to be subjected to excessive

sanctions.’ ” Minniefield,

. (quoting Miller,

(quoting Roper, 543 U.S. at 560)). This right flows from the basic premise that punishment for

a crime should be proportioned to both the offender and the crime. Id.

¶ 31 The proportionate penalties clause, “which focuses on the objective of rehabilitation,”

places greater limitations on the legislature’s ability to prescribe harsh sentences than the

eighth amendment of the United States Constitution. People v. Clemons,

.

The requirement that all sentences be determined “with the objective of restoring the offender

to useful citizenship,” was added to the 1970 Illinois Constitution as “a limitation on penalties

beyond those afforded by the eighth amendment.” (Internal quotation marks omitted.) Id. ¶ 39.

¶ 32 Emerging research indicates that the development of the young brain continues well

beyond the age of 18, the arbitrary age for those arrested and entering our criminal law system

to be treated as “adults.” This court in People v. Brown,

,

reviewed the sentence for a defendant who was 16-year-old at the time of the offense but tried

as an adult. The court concluded the sentence, which could not be completed until the

defendant attained age 66, was excessive and did not satisfy the constitutional objective of

restoring defendant to useful citizenship.

The Brown court noted “[n]euroscience research

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suggests that the human brain’s ability to govern risk and reward is not fully developed until

the age of 25.” Id. ¶ 46.

¶ 33 Even the most heinous offenses do not cancel constitutional protections to a young person

who commits them. Miller,

. In Miller, one defendant participated in the

attempted robbery of a video store, during which the clerk was shot point blank with a sawed-

off shotgun. The other defendant robbed a neighbor of $300 and repeatedly hit the victim with

a baseball bat before setting fire to the victim’s trailer with the victim alive inside. (Internal

quotation marks omitted.) Miller,

.

¶ 34 The State argues that Miller v. Alabama, Harris,

, and Thompson,

, are inapplicable because they addressed mandatory life or mandatory de facto life

terms and not discretionary sentences. We reject this argument and find support in Minniefield

which states “[t]he Illinois Supreme Court found that the reasoning of ‘Miller applies to

discretionary sentences’ as well.” Minniefield,

(quoting People

v. Holman,

). The key issue is not whether the sentence was mandatory

or discretionary but whether the proper process was followed by having a sentencing hearing

that considers the defendant’s youth and characteristics. Holman,

.

In other words, the relevant inquiry is whether the trial court failed to specifically consider

“some variant of the Miller factors.” Holman,

.

¶ 35 Moreover, after Holman, our supreme court in People v. Buffer explicitly found that Miller

applies to juvenile life sentences, whether “mandatory or discretionary.” Buffer,

. The Buffer court found that, for a juvenile, a de facto life sentence was a

sentence of 40 years or more. Buffer,

; Carrasquillo, 2020 IL App

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(1st) 180534, ¶¶ 40-41. Brewer was only a few months past his 18th birthday at the time of the

offense.

¶ 36 In Nieto, the defendant was 17 years old at the time of the offense. Nieto,

, ¶ 14. This court’s evaluation of the trial court’s sentence stated: “While we do

not fault the trial court for failing to apply principles of law and science that had not yet been

adopted by the Supreme Court, the trial court’s findings do not imply that it believed defendant

was the rarest of juveniles whose crime showed that he was permanently incorrigible.”

(Emphasis in original.) Id. ¶ 58. Even though the trial court found that given the defendant’s

gang involvement and history, the defendant was likely to commit a crime in the foreseeable

future, this court observed “susceptibility to peer pressure and recklessness erode with age.”

Id. Indeed, this court noted, the trial court found defendant could do something positive in the

future, possibly change his life “and even help other gang members change their ways, albeit

in prison.” Id. Given that Brewer was five months past his 18th birthday, these factors are

equally applicable.

¶ 37 Minniefield points to “our evolving standard of decency” underlying both the

proportionality clause and the eighth amendment and expressed in People v. Miller,

(2002) (“as our society evolves, so too do our concepts of elemental decency and

fairness which shape the ‘moral sense’ of the community”). Minniefield,

. We cannot ignore the fact that Brewer’s sentence results in incarceration until

he reaches 98 years old. The law in Illinois has evolved to recognize the reality and failed

utility of lengthy sentences for adolescents. Brewer may now develop his claim in a stage-two

postconviction hearing.

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¶ 38 Four recently published decisions, Daniels, Bland, Franklin, and Savage, addressed the

argument that Brewer should be allowed leave to file his successive petition to develop the

factual basis for his as-applied constitutional claim.

¶ 39 In August 2020, People v. Daniels,

, reversed the trial court’s

order denying the defendant leave to file a successive post-conviction petition in which he

claimed that his sentence was unconstitutional under Miller. Id. ¶ 36. Observing the law’s

continued trend “in the direction of increased protections for youthful offenders,” this Court

held that the defendant’s reliance on Harris,

and Thompson, 2015

IL 118151—both decided after the defendant’s prior post-conviction petitions—established

cause. Id. ¶ 34.

¶ 40 In Daniels, the defendant pled guilty to a murder he committed when he was 18-years-old.

This court observed that “there has been virtually no guidance as to what, exactly, an adult

defendant must show to obtain relief under Miller’s auspices.” Id. ¶ 31. Further, it found that

neither Harris nor House “should utterly disqualify him or her from raising” an as-applied,

youth-based proportionate penalties claim. Id. ¶ 31. The court acknowledged that Daniels “had

an unusually harsh childhood and suffered from a number of psychological conditions that

could have inhibited his development and caused him to act impulsively.” Id. ¶ 33.

Accordingly, this court concluded that it was premature at the leave to file stage of proceedings

to determine whether his claim fails as a matter of law because he “may be able to make a

showing that his mental health conditions are of a nature that he can and will outgrow them

and that he was the functional equivalent of a juvenile because of those conditions.” Id. ¶ 34.

¶ 41 Like the defendant in Daniels, Brewer was 18 years old when he committed a violent

offense, and he was sentenced before Miller and its progeny. Similarly, he now seeks leave to

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file a successive post-conviction petition alleging that youth played a role in his offense and

asking for an opportunity to demonstrate that his young adult brain was more akin to that of a

juvenile. As in Daniels, it is premature to affirm the trial court’s order denying leave to file

before Brewer can develop the record more fully.

¶ 42 Shortly after Daniels, the Third District issued People v. Bland,

.

Bland was convicted of a murder he committed when he was 19 years old and sentenced to a

de facto life sentence of 71 years’ imprisonment. Id. ¶ 6. He sought leave to file a successive

post-conviction petition, arguing his de facto life sentence was unconstitutional under the

eighth amendment and the proportionate penalties clause. Id. ¶ 13. The reviewing court

reversed the trial court’s denial of the motion for leave to file, finding that the petition pled

sufficient facts to warrant second-stage postconviction proceedings. Id. ¶ 14. Specifically, the

court found Bland established a cause for filing his petition in 2017, where “the suggestion that

Miller could be applied to those 18 years of age and older was not made until 2015 in People

v. Thompson, 2015 IL 118151” and Miller was extended to de facto life sentences in People v.

Reyes,

. Id. ¶ 10. The court also observed that Harris “suggested” that an as-

applied challenge under Miller had not been foreclosed for emerging adults. Id. ¶ 13.

¶ 43 Referencing the juvenile studies cited in House, the 19-year-old Bland alleged that “he was

found guilty under a theory of accountability, and he had been diagnosed with an antisocial

personality disorder that exhibited symptoms similar to characteristics of juveniles.” Id. ¶ 14.

Bland held that the defendant had “pled enough facts to warrant further proceedings on his

claim that the tenets of Miller apply to him,” and in doing so, observed that nothing in the

record “indicates that the trial court considered the defendant’s youth and its attendant

characteristics as recognized in Miller.” Id. ¶ 14.

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¶ 44 Like the defendant in Bland, the trial court did not consider his youth when it imposed a

de facto life sentence. Also, like Bland, Brewer cited scientific studies and the decision in

House to support his claim of unconstitutionality. Brewer also explained that his “personal

characteristics are scientifically and constitutionally [inherent] to petitioner’s youth at the time

petition was charged[.]” Finally, Brewer asserted that “[g]iven the science relied on by the

United States Supreme Court, the reasoning and underlying analysis in support of Miller apply

with equal force here because petitioner falls into the class of youth that science recognizes as

having brains that are not yet fully developed at the time of the offense.” Bland supports

Brewer’s argument for reversal.

¶ 45 One week after Bland was decided, this Court issued People v. Franklin,

, reversing the trial court’s order denying the defendant leave to file a successive post-

conviction petition where he met the “very low threshold requirement” for merely filing. Id.

¶ 3. Franklin’s petition alleged that his natural life sentence for a murder he committed when

he was 18-years-old violated the eighth amendment and proportionate penalties clause because

it ignored his rehabilitative potential and did not take into account his mental illness. In

remanding the case for further proceedings, this Court explained that the “proper vehicle for a

young adult such as defendant, who is between 18 and 21 years old, to raise an as-applied

challenge to a life sentence is in a postconviction proceeding.” Id. ¶ 71. And when a defendant

claims that the evolving science discussed in Miller applies to emerging adults, the trial court

is the most appropriate tribunal for factual development. Id.

¶ 46 While acknowledging that the record before it contained no evidence about the evolving

science and its impact on Franklin, this court found that he showed prejudice by establishing a

“catch-22–without a developed record, he cannot show his constitutional claim has merit, and

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without a meritful claim, he cannot proceed to develop a record.” Id. ¶ 72. Looking at the

record, the defendant had no prior adult or juvenile convictions, had to repeat the 9th grade,

left school in the 10th grade, had low average/borderline intelligence, suffered from auditory

hallucinations, had two head injuries, and had been diagnosed with various mental illnesses.

Id. ¶ 34. The record showed that at sentencing, the trial court did not consider his age (except

to determine that it qualified him for death-penalty consideration) or the attendant

characteristics of his youth, and the record also failed to establish that he was beyond the

possibility of rehabilitation. Id. ¶¶ 59, 66.

¶ 47 Recognizing that “mental health issues may lower a defendant’s functional age” and should

be considered in fashioning an appropriate sentence, the case was remanded for second-stage

post-conviction proceedings “to allow the trial court to consider whether [the defendant’s]

mental health and other issues at the time of the offense rendered [him] functionally under 18

years old or whether, as applied to him, as someone under 21-years-old, his sentence of natural

life without the possibility of parole violates the proportionate penalties clause of our state.”

Id. ¶¶ 64, 69.

¶ 48 As in Franklin, the record shows that Brewer received psychiatric treatment on multiple

occasions. Additionally, at a pre-trial motion to suppress Brewer’s statement, a board-certified

psychiatrist testified that about six weeks before the offense, she evaluated Brewer and

diagnosed him with having “post-traumatic stress disorder” following an alleged beating by

the Chicago police. She prescribed Zoloft.

¶ 49 Also as in Franklin, the record shows that the trial court never considered Brewer’s young

age or the attendant characteristics of youth or found him beyond rehabilitation when it

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imposed a de facto life sentence. The Franklin court declared it “paramount” that the record

be developed in the trial court. Id. ¶ 71.

¶ 50 On the same day Franklin issued, this court decided People v. Savage,

. The court in Savage reversed the summary dismissal of an initial post-conviction

petition and remanded for stage-two postconviction proceedings. Savage was 22-years-old

when he committed a murder and attempt murder during a botched robbery in 1992. Id. ¶ 15.

He was convicted of both offenses and sentenced to consecutive prison terms of 60 years for

the murder and 25 years for the attempt murder. Id. ¶ 35. In 2017, he filed an initial pro se

post-conviction alleging that his sentence violated the eighth amendment and proportionate

penalties clause as applied to him, because his youth and long-term drug addiction made him

the functional equivalent of a juvenile, “more susceptible to peer pressure” and “more volatile

in emotionally charged settings.” Id. ¶ 71. Savage explained that he had since become sober

and had not tested positive for drugs while in prison, despite their availability. Id. ¶ 9. The trial

court summarily dismissed the petition as frivolous and patently without merit. Id. ¶ 38.

¶ 51 On appeal, this Court reversed and remanded for stage-two post-conviction proceedings,

finding that “Illinois courts typically consider the sentencing claims of young adults under the

proportionate penalties clause rather than the eighth amendment [,]” because federal cases have

generally drawn a line at age 18 (Minniefield,

), and because

“the Illinois clause offers a broader path to the same type of relief.” Id. ¶ 61. Also, recent

legislative enactments support defined “youthful offenders” as those under the age of 21. Id. ¶

68. For example, House Majority Leader Currie argued during the debates on the bill allowing

individuals under 21 years of age at the time of the offense to be eligible for parole after serving

20 years in prison, that those under 21 years old are “ ‘young people’ ” who “ ‘do not always

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have good judgment.’ ” (quoting 100th Ill. Gen.Assem., House Proceedings, Nov. 28, 2018, at

48-49) Id. Additionally, this Court commented that those under 21 years of age are treated

differently than adults under the law, as they cannot purchase alcohol, cigarettes, and wagering

tickets, cannot own a gun without parental permission, and cannot be sentenced to a Class X

sentence due to recidivism. Id. ¶ 69. And mental health issues may lower a defendant’s

“functional age” as the “law requires a sentencing court to consider whether, at the time of

offense, the defendant was suffering from a mental disability that substantially affected his

ability to conform his conduct to the requirements of the law.” Id. ¶ 70.

¶ 52 As in Savage, the record here “does not show that the trial court considered the attributes

of young adulthood[.]” Id. 74. Again, as in Savage, the record supports Brewer’s claim, which

shows he was under psychiatric care at the time the offense was committed, and the trial court

did not mention Brewer’s age and did not consider the characteristics of youth, or his

rehabilitation potential when it imposed a de facto life sentence.

¶ 53 While the State complains that Brewer has not adequately plead his claim when he moved

for leave to file, the most recent caselaw indicates that all he needs to plead is his age, a

mandatory life sentence, a lack of criminal background, and anything in the record indicating

rehabilitative potential. Moreover, if Brewer demonstrated that the evolving science regarding

juvenile brain development does apply to him, he would be entitled to a new sentencing

hearing, not merely advancement to the second stage. See Franklin,

(reversing denial of leave to file defendant’s pro se successive petition and remanding for

further proceedings so trial court can “consider whether” “as applied to him, as someone under

21 years old, his sentence of natural life without the possibility of parole violates the

proportionate penalties clause of our state.”).

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¶ 54 At this stage, Brewer has alleged “enough facts to warrant further proceedings on his claim

that the tenets of Miller apply to him.” Bland,

.

¶ 55 We reverse the trial court’s denial of Brewer’s request for leave to file his successive

postconviction petition and remand. If Brewer succeeds, the trial court will consider a new

sentencing hearing.

¶ 56 Reversed and remanded.

¶ 57 JUSTICE PIERCE, dissenting.

¶ 58 Brewer argued that the court erred when it denied him leave to file his successive

postconviction petition because he established “prejudice” by making a prima facie as-

applied Miller challenge by alleging: (1) his 18-year-old brain was like a juvenile brain; (2)

he received a de facto life sentence; and (3) his youth was not properly considered at his

sentencing hearing. The majority agrees with Brewer and has given him the opportunity to

develop his claims in a successive postconviction petition. I write to express my disagreement

with the majority’s finding that Brewer’s case should be remanded to the circuit court to allow

him an opportunity to develop his Miller claims, and, if established, allow the trial court the

opportunity to judge the credibility of those claims.

¶ 59 Brewer was 18 years old at the time he committed first degree murder, yet he seeks the

protection of Miller, protections that do not apply to adult offenders. He wants to receive the

same protections afforded juveniles even though he was an adult at the time of his offense.

Miller related jurisprudence concerns the mandatory or discretionary natural or de facto life

sentence imposed on a juvenile. People v. Buffer,

. Brewer was not a

juvenile at the time of the offense, he was 5 months past his 18th birthday, and therefore Miller

does not apply here.

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¶ 60 However, even if Miller applies, Brewer should not be given leave to file a successive

postconviction petition because he simply cannot establish the necessary prejudice where the

record before us shows that his sentencing hearing considered the Miller factors. Consistent

with the directives of Holman,

and applying the analysis we used in People v.

Croft,

, appeal denied,

(2018), cert denied

(2018), a review of the sentencing record shows there was no constitutional violation in

the imposition of Brewer’s sentence. I would find no constitutional error warranting leave to

file a successive postconviction petition. See People v. Harris,

(the record was

insufficient to rule on defendant’s Miller claims because there was no record of any hearing or

findings of fact).

¶ 61 Brewer had an extensive and detailed sentencing hearing where the trial court considered

the nature of the offense, defendant’s social and criminal background and, importantly, his

young age. As we stated in Croft, “a key feature of the juvenile’s sentencing hearing is that the

defendant had the ‘opportunity to present evidence to show that his criminal conduct was the

product of immaturity and not incorrigibility.’ ” (Emphasis added). Croft,

(quoting Holman,

). Croft noted that the Holman factors

are “a nonexhaustive list” and that “nothing in Miller or Holman suggests that we are free to

substitute our judgment for that of the sentencing court” because the issue is not the particular

sentence the trial court imposed but whether defendant had the opportunity to present evidence

regarding his youth and that the court considered his youth and its attendant characteristics in

reaching its sentencing decision. Croft,

.

¶ 62 Accepting Brewer’s contention, which I do not agree with, that Miller applies to an 18-

year-old adult (see Edwards,

) (at this stage we must accept

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Brewer’s allegations as true), the majority simply fails to recognize that Brewer had a Miller

compliant sentencing hearing. At the sentencing hearing for this 18-year-old adult, defendant

had the opportunity present any and all evidence he believed mitigated his offense. Defense

counsel zealously represented defendant in this respect. As in Croft, the trial court in this case

had before it the trial testimony, the evidence, Brewer’s PSI, and the sentencing arguments of

the parties before it sentenced Brewer. As a result, the trial court considered the same factors

the Holman court found to be constitutionally consistent with Miller. Specifically, the circuit

court stated:

“Factors in mitigation, the defendant’s criminal conduct neither caused nor

threatened serious physical harm to another, not applicable. The defendant did not

contemplate that his original or his criminal conduct would cause or threaten serious

physical harm to another, completely not applicable. Any time you take a weapon and

attempt to basically carjack someone with—out of their property and get involved in an

armed robbery with multiple other offenders and a gun goes off a few times and somebody

gets killed, that absolutely, this factor in mitigation does not apply. The defendant acted

under a strong provocation, not applicable. Number four, there were substantial grounds

tending to excuse or justify the defendant’s criminal conduct though failing to establish a

defense, not applicable. Defendant’s criminal conduct was induced or facilitated by

someone other than the defendant, not applicable other than the fact that three people acted

in concert to commit the crime. Number six, compensation to the victim, of course not

applicable. Seven, the defendant has no prior history of delinquency or criminal activity,

not applicable. Although it’s minimal, I think there’s some juvenile background for

narcotics and an adult conviction for narcotics, probations on those, but not significant

-19- No. 1-17-2314

prior criminal history. The defendant’s criminal conduct was a result of circumstances

unlikely to recur. I’m not exactly sure about that. The witnesses for the defense indicated

that his conduct—his character which is more like the next factor in mitigation and attitudes

‘that he—attitudes of the defendant indicate that he is unlikely to commit another crime.

The family members are mystified that the defendant could have even committed this

offense based on his prior character. So but the fact of the matter is that when the relatives

closest to the defendant are always shocked when they find out something about their son

or nephew that they couldn’t believe would exist—would have existed that he would have

gotten himself involved in a situation like this. But that’s exactly what happened here

according to this jury verdict wherein they found that the defendant was not only guilty of

first degree murder but in fact was the shooter in the case and fired a handgun which caused

death. The imprisonment of the defendant would entail excessive hardship to his

dependents, not any more so than any other situation. 12, defendant’s medical condition,

not applicable. 13, mental retardation, not applicable. Factors in aggravation, the

defendant’s conduct did cause or threaten serious harm, the ultimate serious harm, murder.

The defendant received compensation for committing the offense, no, but this was a

robbery that turned into a murder, felony murder. The defendant has a history of prior

delinquency or criminal activity. Although minimal, yes, he does have a history of prior

delinquency, not a stranger to the criminal justice system. Four is not applicable. Five is

not applicable. Six is not applicable. Seven is absolutely applicable. The sentence is

necessary to deter others from committing the same crime. Eight and nine are not

applicable. And I believe the other factors in aggravation that I’ve looked through, 10, 11,

12, 13, 14, 15, on through 20 and 21 are not applicable.”

-20- No. 1-17-2314

¶ 63 Consequently, in my view, because we have a sufficient record before us, the analysis

employed in Croft is the analysis that the majority should apply, but totally ignores, to find that

defendant was correctly sentenced. Brewer clearly had the opportunity to present any existing

youth related mitigation to the trial court during his sentencing hearing. (“We have examined

the cold record of the circuit court’s [sentencing] hearing * * *, which includes the common

law record and report of proceedings, and find that the circuit court considered evidence of the

defendant’s youth and its attendant characteristics at the time of sentencing and that the

defendant had” the opportunity required by Holman. Id. ¶ 24.)

¶ 64 There is simply no basis to allow Brewer, an adult, leave to file a successive postconviction

petition to argue that Miller applies to him so he can get a second bite at the sentencing apple

where the sentencing court considered all the relevant Miller factors addressed during the

sentencing hearing even though he was he was an adult. Because a reviewing court can

determine from the cold record that no constitutional error occurred (Holman), as we can in

this case, then it follows that Brewer cannot establish the necessary prejudice to be granted

leave to file a successive postconviction petition.

¶ 65 For these reasons, I respectfully dissent.

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