NOTICE

FILED This Order was filed under March 11, 2021 Supreme Court Rule 23 and is not precedent except in the NO. 4-19-0158 Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, Circuit Court of ) Champaign County ) No. 90CF1405 v. ) ) ) Honorable RICHARD A. CORTEZ, ) Jason Matthew Bohm, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice DeArmond concurred in the judgment and opinion.

OPINION

¶1 Defendant, Richard A. Cortez, appeals the circuit court’s first-stage dismissal of his

pro se postconviction petition, arguing his petition stated an arguable claim that the natural life

sentence he received for first degree murder, an offense he committed at the age of 18, violated

both the United States and Illinois Constitutions. We affirm.

¶2 I. BACKGROUND

¶3 In December 1990, defendant pleaded guilty to three counts of first degree murder

(Ill. Rev. Stat. 1989, ch. 38, ¶ 9-1(a)(1), (2)) in connection with the stabbing death of Jennifer

Amerio. During guilty plea proceedings, the State presented a factual basis indicating that shortly

after 1 p.m. on August 13, 1990, police officers responded to an apartment complex in Champaign, Illinois, and observed Amerio’s body in the parking garage of the complex. Her body was

unclothed, wet with water, and appeared to have numerous stab wounds. An examination later

revealed “what appeared to be 15 stab wounds caused by a knife” and that Amerio bled to death

from two wounds that penetrated her lungs and aorta.

¶4 The State’s factual basis also indicated that “[t]he police followed a very obvious

trail of blood from [Amerio’s] body to” the bathroom of her apartment, where there “was also a

considerable amount of blood.” They then followed a more “slight trail of blood,” which led in the

opposite direction and to defendant’s apartment, approximately 100 yards away. Around 3 or 3:30

p.m. the same day, a police officer observed defendant returning to his apartment with bandages

on his hands. Thereafter, defendant spoke with the police and confessed to observing Amerio go

inside her apartment, entering Amerio’s apartment with a knife, and stabbing her in the bathroom.

He also led the police to an area of his apartment complex where items from Amerio’s apartment

were recovered. Amerio’s roommates identified the items as having been in their apartment prior

to her death. Defendant’s fingerprints were found on one of the items and on a jewelry box that

was still inside Amerio’s apartment.

¶5 Defendant’s sentencing hearing was conducted over three days in February 1991.

The record reflects the State sought the death penalty on the basis that defendant murdered Amerio

during the commission of a forcible felony—residential burglary or home invasion. Defendant

waived his right to have a jury determine his eligibility for the death penalty, electing to have the

matter decided solely by the trial court. During the eligibility stage, the State presented testimony

from crime scene technicians and law enforcement officers involved in investigating the murder,

as well as Amerio’s roommates and friends.

¶6 The State’s evidence showed Amerio’s body was found in the parking garage of

-2- her apartment complex. Blood was found in a bathroom in her apartment, and as indicated, a trail

of blood led from the apartment and to the parking garage where her body was discovered.

Amerio’s autopsy report showed she suffered abrasions to her face and multiple “stab-cutting”

wounds, including seven stab wounds to her back, some of which caused injuries to her lungs and

aorta.

¶7 Alan Atteberry, a sergeant with the Champaign Police Department, testified that

following the murder, he spoke with defendant at his apartment. Defendant reported that he injured

his hands while slicing bacon and denied being at Amerio’s apartment complex. After defendant

was arrested and read his Miranda rights (see Miranda v. Arizona,

(1966)), Atteberry

spoke with defendant at the police department. Initially, defendant again denied any involvement

in the murder. Ultimately, however, he admitted his involvement in the stabbing.

¶8 Defendant reported to Atteberry that he observed Amerio “coming across” a back

alleyway as he was sitting outside his apartment. Defendant told Amerio she “look[ed] good” and

that the two should “get together sometime.” Amerio responded that she “wouldn’t get together

with [defendant] ever” and kicked him on his right ankle, stating “that’s about the most we’ll ever

do.” Defendant called Amerio “a b***” and pushed her. He asserted Amerio then attempted to

knee him in the groin. When Amerio walked away, defendant followed her and saw where she

lived. After Amerio entered her apartment, she leaned out of a window and called defendant “an

a***.”

¶9 Defendant asserted he returned home and became progressively angry about how

he had been treated. He decided to go to Amerio’s apartment to “get back at her” by possibly

cutting up her furniture or taking her jewelry and throwing it on the ground. Defendant reported

taking his roommate’s knife with him to Amerio’s apartment, asserting he intended to use it to get

-3- into her apartment. However, when defendant arrived at the apartment, the door was unlocked. He

entered the apartment, picked up some jewelry, and then went to the bathroom where Amerio was

showering. Defendant stated he pulled back the shower curtain and yelled at Amerio, who

“freaked” and started slapping him. Defendant maintained he tried to shove Amerio away,

forgetting about the knife in his hand. He “guess[ed]” that he was “cutting” Amerio as he was

pushing her away. Defendant stated that Amerio eventually let go of him and ran out of the

apartment. He also exited the apartment and went in the opposite direction from Amerio. After the

incident, defendant returned to his apartment and hid the clothing he had been wearing in a storage

area of his apartment building behind a plant. He returned the knife to his roommate’s bedroom.

Defendant maintained that he had not planned on hurting anyone and “didn’t mean to do it.”

¶ 10 The State’s evidence further showed that a search warrant was executed on

defendant’s apartment building. Defendant led the police to the knife he used and the clothing he

wore during the stabbing. The clothing was discovered in the basement level of his apartment

building along with items of jewelry taken from Amerio’s apartment.

¶ 11 Defendant testified on his own behalf at his sentencing, stating he was 18 years old

in August 1990. His description of the stabbing and the events surrounding it was similar to the

statement he gave Atteberry after his arrest. Specifically, defendant asserted he was involved in a

verbal and physical altercation with Amerio before entering her apartment with a knife, taking

jewelry, and confronting her in the shower. Defendant testified that after he pulled the shower

curtain back and yelled at Amerio, she “came after” him, grabbing him by the hair and one of his

shoulders. He stated he “kept trying to shove her away *** so that [he] could leave” while holding

the knife. Defendant testified Amerio eventually let go of him and left. He realized that he had hurt

her when he saw her from behind and observed blood. Again, defendant maintained that he did

-4- not intend to harm Amerio when he went to her apartment and that he took the knife “[j]ust to pry

open the door.”

¶ 12 Ultimately, the trial court found defendant eligible for the death penalty. The matter

then proceeded with the second phase of defendant’s sentencing, during which the court

considered defendant’s presentence investigation report (PSI) and aggravating and mitigating

evidence presented by the parties.

¶ 13 The State’s evidence in aggravation included testimony that defendant had attacked

a woman in her home a few weeks prior to Amerio’s murder and previously exhibited strange and

troubling behavior. Elena Ostrem, a Champaign resident and student at the University of Illinois,

testified that during the early morning hours of July 24, 1990, she awoke to a man standing over

her bed, whom she identified as defendant. During the incident, defendant “threw” Ostrem to the

floor, hit and punched her, strangled her with his hands, twisted her neck, and headbutted her.

Ostrem denied ever seeing defendant prior to the attack. After the attack and following Amerio’s

murder, she saw photographs of him in the newspaper. Later, during a police lineup, she identified

him as her attacker.

¶ 14 The State’s evidence further indicated Ostrem’s attacker utilized a balcony door to

her apartment that had been left unlocked. Following his arrest for Amerio’s murder, defendant

reported to Sergeant Atteberry that he had a sore ankle from jumping off a balcony “one night late

in July.” However, according to Atteberry, defendant denied going to Ostrem’s apartment.

¶ 15 Caroline Glennon testified she was friends with Amerio and, during the summer of

1990, began to have concerns about defendant, who was also one of her neighbors. She stated she

often had to pass by defendant’s apartment and “[m]ore times than [she could] count,” would see

defendant staring at or “intent[ly] watching” her from the back porch or windows of his apartment.

-5- Glennon had conversations with Amerio about defendant. She recalled Amerio asking if Glennon

had seen defendant, if defendant ever said anything to Glennon, and if defendant scared Glennon.

¶ 16 Jennifer Ashenfelter testified she became acquainted with defendant in the eighth

grade. For approximately “a month or so,” defendant followed her home from school a couple of

times a week. On one occasion, he waited outside her house and in her backyard. Ashenfelter

reported what was happening to her mother, who called the school principal. However, defendant’s

behavior did not immediately stop, and on another occasion, he followed her from a school bus

stop to a friend’s house. Defendant waited in the friend’s backyard, and the friend’s mother “had

to go out and tell him that he had to leave.”

¶ 17 Sallie Roth, a special education teacher, testified defendant was one of her students

during portions of his junior and senior years of high school. She recalled giving defendant an

assignment called “100 Journal Essay Story Topics,” which consisted of a worksheet with 100

unfinished sentences that defendant was asked to finish. Roth became alarmed by defendant’s

responses to the assignment, which included numerous statements about death and killing people.

She showed defendant’s worksheet to one of the school’s deans, and a meeting was conducted

with defendant and his parents. Following the meeting, defendant was to have no contact with

Roth.

¶ 18 In mitigation, defendant also presented several witnesses, including his mother,

father, stepfather, and brother. Testimony from defendant’s family showed defendant’s father

drank and was physically abusive to defendant’s mother during their marriage. At the age of six,

defendant moved with his mother and brother from Arizona to Champaign, and his mother

remarried. After his move, defendant had infrequent contact with his biological father.

¶ 19 In school, defendant had behavioral problems and was made fun of for his Hispanic

-6- background. Both of defendant’s parents and their families were of Hispanic origin and fluent in

Spanish; however, defendant did not speak Spanish and felt like he did not “fit in” with his family

members in Arizona. In high school, defendant enjoyed playing football. His mother described

him as helpful around the house but also stated that conflicts arose over defendant staying out past

his curfew. She did not allow defendant to take driver’s education courses at the age of 16 because

defendant “didn’t show [her] any responsibility.” Therefore, defendant did not obtain his driver’s

license until he turned 18. During his senior year of high school, defendant signed paperwork to

join the Marines and expressed to his father that he wanted to be a police officer. In May 1990,

defendant moved out of his mother and stepfather’s home.

¶ 20 Defendant also presented the testimony of Dr. Arthur Richard Traugott, a

psychiatrist who evaluated him at the request of his attorney. In classifying defendant, Dr. Traugott

considered him an “adolescent.” He determined defendant was competent to stand trial and not

insane and suffered from no mental disease or defect under the legal definition of insanity.

However, Dr. Traugott opined defendant did suffer from a developmental reading disorder, which

he described as a learning disability. He found that secondary to that disorder, defendant also

showed “evidence of emotional immaturity.” Dr. Traugott testified defendant had “an immature

outlook on the future” and opined that at the time of the murder, defendant was “under extreme

influence of this pervasive developmental reading problem and its manifestations over a number

of years.” Finally, he testified that in his work, he had not encountered anyone who appeared more

remorseful for his or her actions than defendant.

¶ 21 L.W. Douglas testified he was an addictions counselor who also evaluated

defendant at the request of his attorney. He noted defendant’s use of alcohol and marijuana began

“at a relatively young age” and he used both substances regularly. Douglas believed that defendant

-7- had impaired emotional and mental development as a result of his substance abuse. He estimated

defendant’s emotional development to “be about the age of 14 or 15.”

¶ 22 Faye Catchings testified she was a high school teacher for students with learning

disabilities and behavior disorders. She taught defendant for four years and described him as “lazy,

but willing to try,” “[s]ometimes very childish,” and “very immature for the age that he was in

school.” Catchings also stated defendant exercised “poor judgment” when making decisions, acted

“impulsively,” and exhibited problems with self-esteem. She recalled an occasion when defendant

got into a physical altercation with a classmate. Additionally, she stated that defendant told her

about the incident involving Roth and asserted he had been “joking.” Catchings testified that

although defendant was “a slow learner,” he “would have done okay in a learning disabilities

program in college.” Finally, she stated her belief that defendant had “good in him.”

¶ 23 Defendant further presented testimony from his friends and a former work

supervisor. Valerie Horak testified she had known defendant for two years. She recalled occasions

when defendant assisted her after she was injured in a car accident and when her mother required

medical assistance. Tara Haynes stated she was defendant’s girlfriend and described observing

positive interactions between defendant and his stepfather’s grandmother, as well as the young

children that she babysat. Steve York testified he had known defendant for approximately two

years and was his work supervisor at Osco Drug for approximately one year. He described

defendant as “nice, quiet, [and] kinda shy” and a “good employee.”

¶ 24 Again, defendant testified on his own behalf. He asserted he only followed

Ashenfelter home from school twice and that those incidents occurred when he was 14 years old.

Subsequently, he apologized to Ashenfelter for scaring her, informing her he “didn’t mean

anything by it” and only wanted to get to know her. With respect to the incident involving the

-8- worksheet assigned by Roth, defendant testified he did not treat the assignment seriously. He filled

out the worksheet “like a plot in a story” and “as a joke.” His comments were not directed at Roth,

and he did not think he had to hand in the worksheet after it was completed. Further, defendant

denied entering Ostrem’s apartment and attacking her. Finally, he expressed that he felt really

upset about what he had done to Amerio and that he was very sorry for what happened.

¶ 25 At the conclusion of the evidence, the State asked the trial court to sentence

defendant to death. Defendant’s counsel argued that such a sentence was unwarranted, noting

defendant’s lack of any prior criminal record and arguing he acted under the influence of his

developmental reading disorder and the issues associated with that disorder. Defense counsel also

argued that the evidence supported a finding that defendant could be rehabilitated. He described

defendant as “immature,” an “emotionally disturbed young man,” “irresponsible,” and argued as

follows:

“[I]t’s true, [defendant], still at this stage in his life; has no idea who he is, does not

behave or perform rationally. It’s true that, in [defendant’s] mind, what happened

*** was an accident, although everybody knows it wasn’t an accident, and at some

time in this young man’s life he’ll address and recognize, assuming that he

continues and reaches some emotional maturity, that it was not an accident. That

testimony [from defendant], more than anything else, *** demonstrates where this

young man is emotionally. He’s a big kid, but he’s a little boy.

***

I submit, that due to his age, 18 years old, that this young man, who had admitted

the killing to Sergeant Atteberry, would assist [the police], would assist them and

cooperate with them. And *** he did just that. He *** showed where his clothes

-9- were, where the jewelry was. This is no street-wise criminal, your Honor, scheming,

plotting, planning, sophistication. This is a young man inside a big man’s body.”

¶ 26 Ultimately, the trial court declined to impose the death penalty, finding mitigating

factors sufficient to preclude the imposition of such a sentence. Instead, the court sentenced

defendant to natural life in prison without the possibility of parole. In setting forth its

determination, the court stated it had considered everything that had been presented to it regarding

the offense at issue, matters in defendant’s background, and other conduct on his part. It described

the nature and the circumstances of the offense as “horrible” and “almost beyond description.” The

court found defendant’s actions in killing Amerio were premeditated and rejected his claim that

he was provoked by a confrontation with her. The court stated the confrontation defendant

described “did not occur” and determined that he took his roommate’s knife to Amerio’s apartment

“for the purpose of using it as it was used.” It concluded defendant’s attack on Amerio “was

accompanied by and evidenced exceptionally brutal or heinous behavior, indicative of wanton

cruelty.” Further, the court found defendant had also attacked Ostrem and stated as follows:

“That type of conduct on the part of the Defendant indicates to the Court that we’re

dealing with a person here who is not just possessed on [the day of Amerio’s

murder] by some terrible and bizarre impulse that was momentary and that had

never come before and would never occur again. I just don’t believe that.”

¶ 27 Defendant filed a motion to reconsider or reduce his sentence. He argued, in part,

that his sentence represented a cruel and unusual punishment and that the trial court failed to give

proper weight to mitigating factors, including his learning disability and his age at the time of the

offense. In July 1991, the court conducted a hearing on the motion. In support of the motion,

defendant’s counsel argued the court incorrectly determined that defendant “presented no

- 10 - opportunity for rehabilitation” when sentencing him to life in prison. He asserted evidence was

presented to the court that sufficiently demonstrated defendant’s rehabilitative potential. The court

denied defendant’s motion, stating it had “carefully” considered all the evidence presented, both

in aggravation and mitigation, and that it had imposed an appropriate sentence.

¶ 28 Defendant challenged his sentence on direct appeal. He argued, in part, that the trial

court abused its discretion in sentencing him to natural life given his age and lack of any criminal

record. Defendant also maintained the court failed to consider mitigating factors that demonstrated

he could be rehabilitated. This court affirmed defendant’s conviction and sentence, noting the trial

court’s rejection of defendant’s version of the murder and its finding that defendant had previously

attacked another woman and his behavior was likely to recur. See People v. Cortez, No. 4-91-0547

(March 20, 1992) (unpublished order under Illinois Supreme Court Rule 23).

¶ 29 In November 2018, defendant filed a pro se postconviction petition alleging his

natural life sentence violated the eighth amendment of the United States Constitution (U.S. Const.,

amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970,

art. I, § 11) because he was denied the opportunity to present mitigating evidence at sentencing;

his sentence did not adequately take into consideration his “[a]ge, mental state[,] or level of

culpability”; and his sentence did not adequately reflect his potential for rehabilitation. Defendant

cited case authority, including Miller v. Alabama,

(2012), recognizing that children

are constitutionally different from adults for sentencing purposes and setting forth limits on the

imposition of life sentences for juvenile offenders. He argued the same principles that apply to

juvenile offenders should be applied to him as a young adult. Defendant maintained that, in his

case, a natural life sentence was unwarranted and unconstitutional because he (1) was only 18

years old at the time of the offense, (2) suffered from a severe learning disability, (3) was raised

- 11 - in a broken home, (4) acted on an immature impulse to commit a burglary and did not intend to

kill, and (5) was remorseful.

¶ 30 In February 2019, the trial court dismissed defendant’s petition, finding it was

patently without merit. In reaching that determination, the court noted defendant was not a juvenile

at the time of the murder, his life sentence was discretionary rather than mandatory, and “the

sentencing court adequately considered his youth.”

¶ 31 This appeal followed.

¶ 32 II. ANALYSIS

¶ 33 On appeal, defendant challenges the trial court’s first-stage dismissal of his pro se

postconviction petition. He asserts his petition set forth at least an arguable, as-applied

constitutional challenge to his natural life sentence because (1) the principles restricting life

sentences for juvenile offenders should be applied to him as an 18-year-old, young adult offender

and (2) his youth and its attendant characteristics were not afforded consideration at his sentencing

hearing. He asks this court to reverse the dismissal of his pro se petition and remand for

second-stage proceedings with the appointment of counsel so that he may have the opportunity to

develop his claim.

¶ 34 A. The Post-Conviction Hearing Act

¶ 35 “The Post-Conviction Hearing Act [(Act) (725 ILCS 5/122-1 et seq. (West 2014))]

provides a procedural mechanism through which criminal defendants can assert that their federal

or state constitutional rights were substantially violated in their original trials or sentencing

hearings.” People v. Buffer,

,

. The Act sets forth a three-

stage process for the adjudication of a postconviction petition. Id. ¶ 45. At the first stage of

proceedings, “the circuit court determines whether the petition is ‘frivolous or is patently without

- 12 - merit.’ ” Id. (quoting 725 ILCS 5/122-2.1(a)(2) (West 2014)). Upon making such a determination,

“the court must dismiss the petition in a written order.” People v. Hodges,

,

(2009).

¶ 36 A postconviction petition is frivolous or patently without merit only when it “has

no arguable basis either in law or in fact.”

. “A petition which lacks an arguable basis

either in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful

factual allegation.”

. “An example of an indisputably meritless legal theory is one which

is completely contradicted by the record.”

“Fanciful factual allegations include those which are

fantastic or delusional.”

. A court’s dismissal of a postconviction petition is subject to

de novo review. Buffer,

.

¶ 37 B. Miller and its Progeny

¶ 38 In Miller,

, the Supreme Court held “that the Eighth Amendment

forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile

offenders,” i.e., those under the age of 18. The court relied on previous decisions establishing that

children are constitutionally different from adults for sentencing purposes.

at 471 (citing Roper

v. Simmons,

(2005), and Graham v. Florida,

(2010)). In setting forth its

decision, the court stated as follows:

“Mandatory life without parole for a juvenile precludes consideration of his

chronological age and its hallmark features—among them, immaturity,

impetuosity, and failure to appreciate risks and consequences. It prevents taking

into account the family and home environment that surrounds him—and from

which he cannot usually extricate himself—no matter how brutal or dysfunctional.

It neglects the circumstances of the homicide offense, including the extent of his

- 13 - participation in the conduct and the way familial and peer pressures may have

affected him. Indeed, it ignores that he might have been charged and convicted of

a lesser offense if not for incompetencies associated with youth—for example, his

inability to deal with police officers or prosecutors (including on a plea agreement)

or his incapacity to assist his own attorneys. [Citations.] And finally, this mandatory

punishment disregards the possibility of rehabilitation even when the circumstances

most suggest it.” Id. at 477-78.

¶ 39 Miller set forth a new substantive rule of constitutional law and has been held to

apply retroactively. Montgomery v. Louisiana,

, ___,

(2016); see

also People v. Davis,

,

(“Since Miller declares a new

substantive rule, it applies retroactively ***.”). It requires “that before sentencing a juvenile to life

without parole, the sentencing judge take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison.” (Internal quotation

marks omitted.) Montgomery, 577 U.S. at ____,

.

“The [Miller] Court recognized that a sentencer might encounter the rare juvenile

offender who exhibits such irretrievable depravity that rehabilitation is impossible

and life without parole is justified. But in light of children’s diminished culpability

and heightened capacity for change, Miller made clear that appropriate occasions

for sentencing juveniles to this harshest possible penalty will be uncommon.”

(Internal quotation marks omitted.)

at___,

.

In Illinois, Miller’s holding and rationale have been extended to cases in which juvenile offenders

are sentenced to de facto mandatory life sentences, i.e., sentences greater than 40 years (People v.

Reyes,

,

; Buffer,

), and “to

- 14 - discretionary sentences of life without parole” (People v. Holman,

,

).

¶ 40 Ultimately, to establish a Miller-based claim, “a defendant sentenced for an offense

committed while a juvenile must show that (1) the defendant was subject to a life sentence,

mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider

youth and its attendant characteristics in imposing the sentence.” Buffer,

.

Further, in Holman,

, the supreme court considered “what it means

to apply Miller,” stating as follows:

“Under Miller and Montgomery, a juvenile defendant may be sentenced to

life imprisonment without parole, but only if the trial court determines that the

defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or

irreparable corruption beyond the possibility of rehabilitation. The court may make

that decision only after considering the defendant’s youth and its attendant

characteristics. Those characteristics include, but are not limited to, the following

factors: (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. [Citation.]

*** In revisiting a juvenile defendant’s life without parole sentence, the

- 15 - only evidence that matters is evidence of the defendant’s youth and its attendant

characteristics at the time of sentencing. Whether such evidence exists depends

upon the state of the record in each case. A court revisiting a discretionary sentence

of life without parole must look at the cold record to determine if the trial court

considered such evidence at the defendant’s original sentencing hearing.”

¶ 41 C. Application of Miller to Young Adult Offenders

¶ 42 Although Miller and its progeny directly apply to only offenders under the age of

18, our supreme court has recognized that young adult offenders “may raise an as-applied

constitutional challenge in a postconviction petition based on the evolving science on juvenile

maturity and brain development which helped form the basis of the Miller decision.” People v.

Moore,

(citing People v. Harris,

,

; People v. Thompson,

,

).

“In doing so, the court opened the door for a young-adult offender to demonstrate,

through an adequate factual record, that his or her own specific characteristics were

so like those of a juvenile that imposition of a life sentence absent the safeguards

established in Miller was ‘cruel, degrading, or so wholly disproportionate to the

offense that it shocks the moral sense of the community.’ ” People v. Daniels,

.

¶ 43 Specifically, in Thompson,

, the defendant received a

mandatory natural life sentence after committing two murders at the age of 19. Many years after

his conviction, he raised an as-applied constitutional challenge to his mandatory life sentence

under Miller while appealing the dismissal of a section 2-1401 petition for relief from judgment

(735 ILCS 5/2-1401 (West 2010)). Thompson,

. On review, the supreme

- 16 - court found the defendant’s as-applied challenge had been forfeited because it was raised for the

first time on appeal. Id. ¶ 39.

¶ 44 In reaching that decision, the supreme court noted that as-applied constitutional

challenges were “dependent on the particular circumstances and facts of the individual defendant

or petitioner” and, as a result, it was “paramount that the record be sufficiently developed in terms

of those facts and circumstances for purposes of appellate review.” Id. ¶ 37. The court further

reasoned as follows:

“To support his as-applied challenge, defendant relies exclusively on the ‘evolving

science’ on juvenile maturity and brain development that formed the basis of the

Miller decision to ban mandatory natural life sentences for minors. Defendant

maintains that this science applies with ‘equal force’ to a criminal defendant who

was between the ages of 18 and 21 when the underlying crime was committed. The

record here, however, contains nothing about how that science applies to the

circumstances of defendant’s case, the key showing for an as-applied constitutional

challenge. Nor does the record contain any factual development on the issue of

whether the rationale of Miller should be extended beyond minors under the age of

18. Undoubtedly, the trial court is the most appropriate tribunal for the type of

factual development necessary to adequately address defendant’s as-applied

challenge in this case.” Id. ¶ 38.

¶ 45 The supreme court went on to state that, despite its ruling, the defendant was “not

necessarily foreclosed from renewing his as-applied challenge in the circuit court.” Id. ¶ 44. In

particular, it noted that the Act was “expressly designed to resolve constitutional issues.” Id. More

recently, the supreme court reached a similar conclusion in Harris,

,

- 17 - where it determined the defendant’s Miller-based, as-applied challenge to his mandatory minimum

aggregate term of 76 years’ imprisonment—for offenses he committed at the age of 18—could not

be raised for the first time on direct appeal and would be more appropriately raised in a

postconviction petition.

¶ 46 D. Defendant’s Miller-Based Postconviction Claim

¶ 47 The above case authority makes clear that to establish an as-applied constitutional

challenge to his or her life sentence based on Miller principles, a young adult offender is required

to allege and ultimately demonstrate that (1) at the time of the commission of the underlying

offense, his or her own specific characteristics—those related to youth, level of maturity, and brain

development—placed him or her in the same category as juvenile offenders described in Miller

and (2) his or her sentencing was not Miller compliant, in that a life sentence was imposed without

regard for the offender’s youth and its attendant characteristics. Further, as discussed, a defendant

must present a claim that has an arguable basis in law and fact to survive the first stage of

postconviction proceedings.

¶ 48 Initially, we note the State’s contention on appeal that, in Harris, the supreme court

“made it clear that Miller and its progeny provide no support for adult offenders” and, as a result,

defendant’s postconviction petition was based on a meritless legal theory and properly dismissed.

However, the portions of Harris referenced by the State concern its consideration and rejection of

the defendant’s facial constitutional challenge to his sentence. Id. ¶¶ 50-61. This case, however,

involves an as-applied constitutional challenge. As set forth above, the supreme court has clearly

indicated a young adult offender may bring an as-applied challenge to his or her sentence based

on Miller in a postconviction petition. See Moore,

; Harris,

; Thompson,

. Accordingly, this portion of the State’s

- 18 - argument lacks merit.

¶ 49 In his pro se postconviction petition, defendant argued that given his youth and

specific characteristics, he was like a juvenile offender. He asserted, however, that he was denied

the opportunity to present mitigating evidence at his sentencing and suggested the sentencing court

failed to consider his age, mental state, level of culpability, or potential for rehabilitation before

sentencing him to natural life in prison. Defendant maintained that factors supporting leniency

included that he (1) was only 18 years old at the time of the murder, (2) suffered from a severe

learning disability, (3) was raised in a broken home, (4) acted on an immature impulse to commit

a burglary and did not intend to kill his victim, and (5) was remorseful.

¶ 50 Here, we find that, even assuming defendant can show that Miller and its progeny

should apply to him as a young adult offender (or at the very least present an arguable claim as to

such), it is not arguable that his sentencing hearing failed to comply with Miller. In other words,

the record aptly demonstrates that the trial court engaged in Miller-related considerations before

sentencing defendant to natural life in prison. See People v. Carrion,

(“[E]ven assuming [the] defendant could establish that Miller principles extended to him,

where he committed the murder at the still youthful age of 19, the record *** demonstrates that

his sentencing hearing was Miller-compliant.”).

¶ 51 To begin with, defendant’s claim that he was not permitted to present mitigating

evidence at his sentencing is plainly refuted by the record. His sentencing hearing was conducted

over a period of three days, during which both parties presented a significant amount of evidence.

Not only did defendant testify on his own behalf, he presented mitigating evidence in the form of

testimony from family members, friends, a previous work supervisor, a former teacher, a

psychiatrist, and an addictions counselor.

- 19 - ¶ 52 Further, defendant’s evidence contained information pertinent to Miller-related

factors. As set forth in Holman, compliance with Miller requires a sentencing court to consider

factors related to a defendant’s youth and its attendant characteristics before sentencing a youthful

offender to a discretionary life sentence. Holman,

. Relevant youth-related

factors for consideration include the following:

“(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.”

¶ 53 In this case, evidence was presented showing defendant’s age, family background,

education, and interactions with peers. The psychiatrist defendant presented testified that he

considered defendant to be an “adolescent” and that defendant appeared remorseful for his crime.

He also testified defendant suffered from a developmental reading disorder that resulted in

emotional immaturity. The addictions counselor opined defendant had impaired emotional and

mental development as a result of his substance abuse. He estimated defendant’s emotional

development to “be about the age of 14 or 15.” Defendant’s former teacher described defendant as

“[s]ometimes very childish” and “very immature for the age that he was in school.” She also stated

he exercised “poor judgment” and acted “impulsively.” Further, defendant’s own testimony set

forth his version of the murder as unintentional.

- 20 - ¶ 54 On appeal, defendant acknowledges that “the record of his sentencing hearing

contains significant evidence as to” the factors set forth in Holman. However, he maintains the

trial court did not “afford [that] evidence any consideration.” In particular, he notes his sentencing

occurred “long before the law recognized the diminished capacity of juvenile and young offenders”

and that the court made no explicit reference to his youth. Defendant also cites authority for the

proposition that the mere fact that the sentencing court heard evidence in mitigation and broadly

stated it considered the evidence presented was not enough to demonstrate Miller compliance. See

People v. Harvey,

(holding “that the [sentencing] court’s mere

awareness of a defendant’s age and consideration of a PSI does not provide evidence that [it]

specifically considered [the] defendant’s youth and its attendant characteristics”); Buffer,

(finding a lack of compliance with Miller where “the circuit court stated that it

‘considered all of the relevant statutory requirements,’ ” but the record did “not indicate that the

court considered [the] defendant’s youth and its attendant characteristics”).

¶ 55 We note that in cases like the one at bar, “inquiry into the Miller factors is

backwards-looking.” Holman,

. “In revisiting a juvenile defendant’s life

without parole sentence, the only evidence that matters is evidence of the defendant’s youth and

its attendant characteristics at the time of sentencing. Whether such evidence exists depends upon

the state of the record in each case.”

In Holman, the supreme court determined the defendant’s

sentence passed constitutional muster under Miller where the record contained “some evidence

related to the Miller factors” and reflected a determination by the sentencing court that the

defendant’s conduct placed him beyond rehabilitation. Id. ¶ 50. In describing the evidence

considered at the defendant’s sentencing, the court states as follows:

“In announcing the defendant’s sentence, the trial court explicitly stated that

- 21 - it considered the trial evidence and the PSI, as well as the evidence and arguments

from the sentencing hearing. The trial court knew the defendant was 17 at the time

of the offense, and the prosecutor and the defendant’s attorney both highlighted his

age in their arguments at the sentencing hearing.” Id. ¶ 48.

The court went on to detail evidence contained within the defendant’s PSI as it pertained to Miller

considerations. Id.

¶ 56 We find the present case similar to Holman. A youthful offender’s sentence does

not run afoul of Miller simply because it predates that decision. Additionally, here, not only did

the trial court explicitly state it had considered and relied on the evidence presented, specifically

including mitigating evidence, in declining to impose the death penalty, the record reflects that

defendant’s youth and immaturity were prominently featured in both the mitigating evidence

defendant presented at sentencing and his counsel’s arguments to the court. This focus, in

particular, distinguishes the present case from the authority defendant cites where the record

showed only a general “awareness” of the evidence presented or consideration of “statutory

requirements.” In light of the emphasis at defendant’s sentencing on evidence related to his youth

and immaturity, we find it illogical for defendant to now argue that the court gave such evidence

absolutely no consideration.

¶ 57 Significantly, like in Holman, the record further reflects a determination by the trial

court that defendant’s conduct showed he was beyond the possibility of rehabilitation.

“[A] juvenile defendant may be sentenced to life imprisonment without parole, but

only if the trial court determines that the defendant’s conduct showed irretrievable

depravity, permanent incorrigibility, or irreparable corruption beyond the

possibility of rehabilitation. The court may make that decision only after

- 22 - considering the defendant’s youth and its attendant characteristics.” Id. ¶ 46.

When imposing defendant’s sentence, the court described the nature and the circumstances of the

offense as “horrible” and “almost beyond description.” It explicitly rejected defendant’s version

of the offense, which defendant points to on appeal as further evidence of his immaturity and

impetuosity, finding, instead, that Amerio’s murder was premeditated and unprovoked. Notably,

the court also found defendant had attacked Ostrem in her apartment only a few weeks before

Amerio’s murder, indicating the behavior that led to Amerio’s murder was not an aberration and

was likely to recur. Finally, we note that in ruling on defendant’s motion to reconsider his sentence,

the court rejected an argument by defendant’s counsel that it had incorrectly determined defendant

lacked rehabilitative potential, stating it had carefully considered all the evidence presented and

imposed an appropriate sentence.

¶ 58 Ultimately, the court’s comments indicate it placed defendant in the same category

as juvenile offenders whose “conduct show[s] irretrievable depravity, permanent incorrigibility,

or irreparable corruption beyond the possibility of rehabilitation” such that they may be sentenced

to life in prison. See id.; see also People v. Croft,

,

(finding the sentencing court provided “a clear indication that [it] believed [the] defendant to be

incorrigible” where the court described the offense as being “ ‘as heinous a murder as one can

imagine’ ” and the defendant as having “ ‘evil intentions’ ” and being “ ‘absolutely heartless’ ”

and “ ‘almost inhuman’ ”); Carrion,

(“[T]he trial court’s

comments suggested it believed [the] defendant’s conduct showed irretrievable depravity,

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

that defendant denied responsibility for the murder even at trial and declined to address the

murdered victim’s family.”).

- 23 - ¶ 59 Again, under the facts of this case, we find it unquestionable that defendant’s

sentencing hearing was Miller-compliant. Thus, even assuming that defendant could establish

Miller’s applicability to him as an 18-year-old young adult offender, his ultimate as-applied

constitutional challenge must fail.

¶ 60 In so holding, we recognize at least two First District cases that have held that the

applicability of Miller and its progeny to a young adult offender must be firmly established before

any consideration of whether his or her underlying sentencing proceedings were Miller-compliant.

See People v. Ruiz,

(stating the young adult offender in that case

was required to “make a preliminary showing” that Miller applies in the first place before a court

may undertake a Holman analysis); People v. Johnson,

(“[The

defendant] has to make a preliminary showing before the court undertakes a Holman analysis.”).

¶ 61 In Ruiz, the First District relied on Harris for the proposition that “young adult

defendants are not entitled to a presumption that Miller applies to them.” Ruiz,

. Accordingly, the court held that “when young adults raise claims that the Miller line

of cases applies to them,” supreme court precedent, namely Harris, requires the defendant to first

plead and prove “that his or her individual characteristics require the application of Miller.”

It

stated that “if, and only if, the young adult makes this showing” was a court permitted “to consider

whether the initial sentencing hearing complied with Miller” as outlined in Holman.

The court

further reasoned as follows:

“As Harris instructs, young adult defendants are not entitled to make an as-

applied challenge to their sentences under Miller unless they first show that Miller

applies to them. [Citation.] If our supreme court conceptualized [otherwise], then

much of the analysis in Harris makes no sense—the court would have just assumed

- 24 - Miller applied to the defendant and evaluated his initial sentencing hearing. Of

course, the court did not do that. *** The trial court should determine the

applicability of Miller, as a factual matter, in the first instance.” Id. ¶ 54.

In Johnson,

, the First District set forth precisely the same

analysis.

¶ 62 Ultimately, we disagree with the interpretation of Harris in both Ruiz and Johnson.

Clearly, in Harris,

, the supreme court held that “[b]ecause [the] defendant

was an adult, Miller d[id] not apply directly to his circumstances.” Accordingly, to establish the

defendant’s as-applied constitutional challenge, a record had to be developed with respect to his

claim that Miller was even applicable.

Such a determination could not be made by the court on

review because an adequate record as to that specific claim had not been developed in the trial

court. Id. ¶¶ 45-46.

¶ 63 Notably, however, the sentence at issue in Harris was a mandatory minimum

sentence of 76 years in prison. Id. ¶¶ 37-48; see also Thompson,

(applying

a similar analysis to Harris and involving a defendant sentenced to a mandatory natural life

sentence). Accordingly, the defendant’s as-applied constitutional challenge based on Miller rose

and fell with his assertion that a Miller analysis applied to him as a young adult offender. This is

so because when dealing with a mandatory life sentence or a mandatory de facto life sentence, the

trial court simply has no ability to impose a less harsh sentence based on considerations of youth

and its accompanying characteristics. Thus, whether Miller factors were presented and considered

at a defendant’s sentencing would do nothing to refute a defendant’s as-applied challenge.

¶ 64 The same is not true when—like in this case and in Holman—a discretionary life

sentence is imposed. When the sentence is discretionary, there remains the possibility that the

- 25 - sentence was in compliance with the dictates of Miller. In this case, the record was sufficiently

developed for us to review what occurred at defendant’s sentencing hearing and determine that it

was in compliance with Miller, contradicting defendant’s postconviction claims. In such

circumstances, it would be pointless and a waste of judicial resources to ignore the deficiency in

defendant’s argument that his sentencing was Miller-noncompliant and, instead, order a remand

for further postconviction proceedings. The First District’s holdings in Ruiz and Johnson ignore

the critical fact in Harris of the mandatory nature of the defendant’s sentence, and we decline to

follow their analysis.

¶ 65 III. CONCLUSION

¶ 66 For the reasons stated, we affirm the trial court’s judgment.

¶ 67 Affirmed.

- 26 - No. 4-19-0158

Cite as: People v. Cortez,

Decision Under Review: Appeal from the Circuit Court of Champaign County, No. 90-CF- 1405; the Hon. Jason M. Bohm, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Christopher Kopacz, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J. for Robinson, and Luke McNeill, of State’s Attorneys Appellate Appellee: Prosecutor’s Office, of counsel), for the People.

- 27 -