THIRD DIVISION December 8, 2021

No. 1-17-0649

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

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

) PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee ) Cook County ) v. ) Case No. 02 CR 11110 ) CHARLES GRIFFIN, ) Honorable ) Nicholas Ford Defendant-Appellant ) Judge Presiding ) _____________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court. Justice McBride concurred in the judgment. Presiding Justice Gordon specially concurred.

ORDER

¶1 Held: Vacated and remanded. Defendant’s 66-year sentence for crime he committed while 17 years old is unconstitutional as applied to him, as sentencing scheme did not permit court discretion to sentence him to anything other than de facto life sentence.

¶2 In 2001, when he was 17 years old, Charles Griffin agreed to drive two men to a drug

house so they could rob it. While he parked in a nearby alley, the men went in, shot and killed

three people, and took some drugs before Griffin sped them away. The shooters were never

caught, but Griffin was, on an unrelated matter. Voluntarily, he confessed to his role, and a jury

convicted him of, among other things, three counts of murder based on accountability for aiding No. 1-17-0649

and abetting the shooters. Following the law as it existed at the time, the court sentenced Griffin

to remain in prison for the rest of his natural life with no chance of parole or release.

¶3 About a decade later, his mandatory natural life sentence was set aside on collateral

appeal after the U.S. Supreme Court, in Miller v. Alabama,

(2012), held that the

eighth amendment forbade mandatory life without parole sentences for juvenile defendants.

Following an extensive hearing, the circuit court re-sentenced defendant to 22 years in prison for

each murder. By law, each sentence had to run consecutive to the other, for a total of 66 years.

¶4 Like many others before him, Griffin is now caught between how Miller and its progeny

have interpreted the eighth amendment and a sentencing scheme that, through a series of

triggering conditions, mandates he serve what he claims is a de facto life sentence for crimes he

committed as a juvenile. On appeal, among other things, he claims his 66-year sentence violates

the U.S. Constitution’s eighth amendment.

¶5 We agree. When it re-sentenced him in 2017, the circuit court did not have the full aid of

a fast-developing body of law, and the law did not allow the court to sentence defendant to less

than 60 years in prison. We now know that, in Illinois, any sentence more than 40 years is a de

facto life sentence and cannot stand unless the court found Griffin permanently incorrigible. But

the court’s comments at sentencing suggest it did not believe he was beyond rehabilitation and

intended to give him a chance at being released. Because the court had no choice but to sentence

defendant to what is now defined as a de facto life sentence, and without a finding the defendant

was not beyond rehabilitation, defendant must be re-sentenced. We vacate his sentence and

remand this cause for a new sentencing hearing, with instructions.

¶6 BACKGROUND

¶7 In the evening of August 17, 2001, Margaret Bracy went to bed at her home on South

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Church Street in Chicago, where she lived with her daughter, Khristian, and her mother, Ethel.

That night, Khristian’s boyfriend, Terrell Hall, and her friend, Nadia James, were at the house,

hanging out with Khristian. Sometime around 2 a.m., Nadia burst into Margaret’s room and hid

behind the door. Khristian followed right behind. Margaret asked Khristian what was wrong, but

Khristian told her everything was alright and to go back to bed. Both girls then left Margaret in

her bedroom and went upstairs. Margaret followed them.

¶8 When she got upstairs, Margaret found Khristian’s bedroom door was locked. She heard

a strange man’s voice say “we’re gonna let you in,” and someone opened the door. Margaret saw

Khristian, Terrell, and Nadia, as well as two men she didn’t recognize. The men were dressed in

all black, their faces covered, and one held a long silver gun. One of the men ordered everyone to

the ground. When Margaret, Khristian, Terrell and Nadia were on the floor, the man with the gun

pointed it at Khristian and shot her multiple times. The man then turned the gun on Terrell and

Nadia, shooting them both. One man asked the other if they had “got everything” before both

men fled the house. Margaret then called 9-1-1.

¶9 Chicago police officers Richard Maxwell and Patrick O’Malley responded. When they

arrived, Margaret and Ethel met them at the door, crying and screaming. The officers went into

the house and up to the second-floor bedroom, where they saw a pair of legs sticking out from

one of the beds and two other bodies lying face down on the ground. All three bodies laid in

large pools of blood, dead from gunshot wounds. Police searched the house and scene and found

things used to sell drugs, including a small scale and small bags that are used to weigh and

prepare them for sale. Police also found a fake can of soda with a hidden compartment; inside

were 40 bags of crack cocaine. The medical examiner concluded Terrell and Nadia both died

from being shot in the head. Khristian was shot multiple times and died from her injuries.

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¶ 10 Later, acting on a tip from Melvin Phillips, police recovered a .357 caliber handgun from

the 6300 block of South Bishop Street in Chicago. An Illinois State Police forensic scientist later

determined that gun fired two bullets retrieved from the victims, as well as a bullet found on the

floor of the house.

¶ 11 The case went cold until late February 2002. That month, police arrested Griffin, the

defendant here, on an unrelated matter. Defendant offered to tell police about a robbery and

triple homicide he knew about, and on February 27, 2002, Detective Karen Morrissette and her

partner interviewed him at the Area 2 police station.

¶ 12 In his first interview, defendant told Morrissette that a man named Shabaz told him he

had invaded a home with his cousin, Little Chris, and killed three people. Shabaz (whose real

name is Gerard Hampton) said he shot the victims because they recognized him from when he

used to buy drugs from that house. Phillips then told defendant to take the gun Shabaz used and

put it behind a house at 62nd and Bishop. Defendant got the gun, wiped his prints from it, and

gave it to a woman who put it behind the house.

¶ 13 Morrissette did not think defendant had been fully forthcoming, so she interviewed him

again a few hours later. Morrissette began that interview by asking defendant if he had been

involved in the murders. Defendant said he did not kill anyone, but admitted he knew about them

because he had gone with Shabaz and Little Chris to the house to rob it. A week before the

murders, Shabaz asked him if he wanted to help rob a drug house. Defendant, 17 years old at the

time of the murders, agreed to help. The following week, Shabaz asked defendant if he was

ready, and defendant said he was. Shabaz picked defendant up in a brown Chrysler, and

defendant took over driving. They picked up a man named Little Chris, Shabaz’s cousin. After

picking up Little Chris, defendant drove the two men to an alley at 113th and South Church

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streets, where Shabaz told defendant to park in the alley and wait in the car.

¶ 14 Shabaz and Little Chris got out and walked to the front of Church Street, out of

defendant’s sight. They were gone for about 15 minutes, during which Griffith heard five or six

gunshots. Shabaz came back to the car with a .357 revolver in one hand and a bag of marijuana

in the other and told Griffin to drive away. In the car, Little Chris asked Shabaz why he shot the

man and woman in the house; Shabaz said he knew them. Shabaz, meanwhile, was upset at Little

Chris for not grabbing a large container of drugs, which was the reason they went to the house in

the first place. Griffin drove back to 63th and South Bishop streets, and everyone went their

separate ways. Two days later, he saw Shabaz, who asked Griffin why he had not yet picked up

his share of the robbery. Griffin told him he did not want it.

¶ 15 After the interview with Morrissette, Griffin spoke with an assistant State’s attorney, who

interviewed Griffin again and wrote out his version of events. Griffin told the ASA generally the

same story, but with some added details. Griffin again said Shabaz asked him to drive Shabaz

and Little Chris to the drug house to rob it, and while the two men went in, Griffin would be the

lookout. Griffin said he drove both men to the house, and when Shabaz got out of the car, he had

a .357 revolver in his hand. Griffin waited for about 10 to 15 minutes in the car and heard about

four gunshots before Shabaz and Little Chris came back to the car. Shabaz still had the gun but

also had a large bag of cannabis. When the men got into the car, Griffin sped away and drove

back to 63rd and Bishop. Little Chris asked Shabaz why he had shot the victims, and Shabaz said

it was because she could identify him.

¶ 16 The State charged Griffin with multiple crimes including murder, home invasion, and

robbery. While awaiting trial in this matter, defendant pleaded guilty in five separate cases to

various charges of armed robbery and attempted armed robbery, all with a firearm, for crimes

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committed after the murders but before he turned 18 years old and was arrested. The court

sentenced defendant to 14 years in prison in each case and ordered the sentences to run

concurrently.

¶ 17 Defendant also was charged with possession of contraband in a penal institution while in

custody awaiting trial; he later pleaded guilty to that charge and received a sentence of 4 years in

prison, with that sentence to run consecutive to the 14-year sentence in the robbery case and any

sentence resulting from the murder charges.

¶ 18 In 2004 and after a trial, a jury found defendant guilty of, among other things, three

counts of first-degree murder—one count each for Bracy, Hall, and James. The trial court,

observing the law gave it no other choice, sentenced defendant to natural life in prison under the

Illinois multiple-murder statute. The court did so after noting that the sentence was “harsh,

maybe unfair” and might be “excessive in view of [defendant’s] participation,” but ultimately

concluded that it was “not the place of the court to make those decisions” given the mandatory

sentence set by statute.

¶ 19 We affirmed his conviction and sentence on appeal. People v. Griffin,

(2006). In doing so, we rejected his claim that the multiple-murder sentencing statute, as it

applied to him, violated the proportionate penalties clause of our state constitution.

.

¶ 20 Defendant filed a postconviction petition in 2007 that was dismissed as frivolous and

patently without merit. We granted appellate counsel’s motion to withdraw from the appeal of

the petition’s dismissal and affirmed. People v. Griffin, 1-08-1589 (June 30, 2009) (unpublished

order under Supreme Court Rule 23).

¶ 21 In June of 2013, defendant sought leave to file a successive postconviction petition.

Relying on Miller, he claimed his natural life sentence violated the eighth amendment. He also

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raised another proportionate penalties challenge. The court granted leave and advanced the

petition to the second stage. Defendant was appointed counsel, and the parties proceeded to hold

a new sentencing hearing.

¶ 22 Before the new sentencing hearing, both parties filed extensive sentencing memoranda.

In it, defendant asked the court to consider the numerous certificates he had earned while in

prison, as well as letters from former teachers and friends. He argued the court should not impose

consecutive sentences and, relying on People v. Reyes,

, suggested a sentence of

32 years would be appropriate. The State, meanwhile, argued that an extended term-of-years was

appropriate. The State also contended that the law required the sentences on each individual

murder count to run consecutive to each other, meaning the defendant faced a minimum sentence

of 60 years.

¶ 23 After both parties argued in favor of their respective positions, the court sentenced

defendant to 66 years in prison: 22 years on each count of murder, each count’s sentence running

consecutive to the others. In doing so, the court highlighted that, while the defendant did not

enter the house and shoot the victims, he was accountable for those who were. It was not

“outrageously unforeseeable” that people could die when their home was invaded and robbed,

the court said. And while the court said it did not believe natural life was an “inappropriate

sentence” in the case, it admitted the mitigation had an effect on the court. Importantly, the court

said that, in its view, “the Defendant must be sentenced to a sentence on each murder separately,

and they must be consecutive to one another.” The court also ordered defendant to serve his 14-

year armed robbery sentence, as well as the 4-year sentence for possession of contraband in a

penal institution, consecutively to each other and the murder sentences. Total, the sentence

would add up to 84 years, not counting any sentencing credit.

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¶ 24 After giving the defendant admonishments on how to appeal his sentence, the court said:

“This is not a life sentence. This is a sentence that will allow his release at an older age, but there

is a release out there. I wish you good luck, Mr. Griffin.” Defendant filed a motion to reconsider,

arguing the consecutive sentence mandate basically left defendant in the same place he was to

begin with—facing the equivalent of a life sentence. The court denied the motion, saying only

there was a “substantial reduction” in defendant’s sentence. Defendant timely appealed.

¶ 25 ANALYSIS

¶ 26 I. Jurisdiction

¶ 27 First, we need to ensure our jurisdiction, though neither party has questioned it. The

circuit court never formally entered an order—oral or written—granting defendant’s successive

postconviction petition and vacating his prior natural life sentence. On October 4, 2013, the court

advanced the successive petition to the second stage of postconviction proceedings. Moving a

petition to the second stage is not the same as granting it. See People v. Beaman,

(2008) (discussing three separate postconviction stages). On the later dates, the parties

seemed to agree that defendant needed to be re-sentenced. But the court never granted the

postconviction petition nor vacated the 2003 judgment imposing a natural life sentence.

¶ 28 Absent such an order, the circuit court arguably lacked subject-matter jurisdiction to re-

sentence defendant, since the circuit court lost jurisdiction to do so 30 days after denying

defendant’s original motion to reconsider his sentence in 2004. See People v. Bailey,

; People v. Lake,

. Filing a postconviction petition

does not vest the court with jurisdiction to change a sentence without first granting the petition,

since postconviction proceedings are not part of the criminal process and are instead collateral

civil proceedings. People v. Hill, 202 IL App (1st) 171739, ¶ 23. And if the court did not have

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jurisdiction to enter the order from which defendant now appeals, we lack jurisdiction, too, other

than to vacate the circuit court’s void judgment and dismiss the appeal. See Bailey,

.

¶ 29 But we find that the court had jurisdiction under the revestment doctrine. For the doctrine

to apply, both parties must 1) actively participate in the proceedings; 2) fail to object to the

untimeliness of the late filing; and 3) assert positions that make the proceedings inconsistent with

the prior judgment. Id. ¶ 26. A nearly identical situation happened in Hill,

, and we follow its lead.

¶ 30 Here, it is clear that the court was intending to supplant the 2003 sentence with its new

one. Though it did not formally grant the postconviction petition, it effectively did so by its

action. Each party agreed that the original life sentence could no longer stand per Miller, each

party filed and argued sentencing memoranda, and nobody raised any objection to the fact that an

attack on the sentence was taking place 9 years after the original sentence. (In Hill,

, an even longer period of time, nineteen years, had elapsed.)

¶ 31 In sum, all parties acted with eyes wide open to the fact that a re-sentencing was

mandated by Miller, and it would be pointless to exalt form over substance and pretend

otherwise. The court was revested with jurisdiction, as in Hill, and we thus have jurisdiction to

review its order.

¶ 32 II. Miller and Illinois

¶ 33 Because much has changed in juvenile sentencing since defendant was first sentenced—

and continues to change even now—a brief survey of the law as it exists today is a good place to

begin. In Miller, the U.S. Supreme Court held that the eighth amendment forbids a sentencing

scheme which results in a mandatory life in prison without parole sentence for a juvenile

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offender. Miller,

. Mandatory-life sentencing schemes run afoul of the

constitution because they rob a factfinder of the ability to consider youth—including children’s

diminished culpability and heightened capacity for change—before imposing the harshest

penalty possible.

The court applied Miller retroactively in Montgomery v. Louisiana,

(2016).

¶ 34 Using Miller and Montgomery as a springboard, our state supreme court has added its

own interpretations as well. In People v. Reyes,

, the court held that

“sentencing a juvenile offender to a mandatory term of years that is the functional equivalent of

life without the possibility of parole” violates the eighth amendment. The practical effect of a

mandatory term-of-years sentence that cannot be served in one lifetime and that of a mandatory

life sentence is the same, the court said; either way, the juvenile will die in prison.

Thus, a

sentence that is a mandatory term of years that will ensure a juvenile defendant will never be

released is the same as a mandatory, non-probationable life sentence for Miller’s purposes.

¶ 35 The court made some of its most extensive analysis of Miller, as it should be applied in

Illinois, in People v. Holman,

. There, the court held that, under Miller and

Montgomery, a court may sentence a juvenile to life in prison 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.”

Id. ¶ 46. Thus, a finding of permanent incorrigibility was necessary to any life sentence. (That

holding in Holman remains the law in Illinois as of now, though recent U.S. Supreme Court

precedent may one day change that; we will have more to say on that herein.)

¶ 36 Our supreme court then settled one of the thorniest questions: what constitutes a de facto

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life sentence in prison? In People v. Buffer,

, finding inspiration in

amendments to a juvenile-justice law the General Assembly passed, the court held that any

prison sentence for a juvenile defendant that is more than 40 years is legally a de facto life

sentence in Illinois. Lastly, in People v. Dorsey,

, the court held that the

defendant’s eligibility for good-conduct credit, in which he could earn time off a sentence by

demonstrating maturity and rehabilitation, matters when calculating a sentence’s true length for

Miller’s and Buffer’s purposes.

¶ 37 III. This defendant’s sentence

¶ 38 The table set, we turn to defendant’s claim. Relying on the line of cases from Miller to

Buffer, Griffin claims his 66-year sentence is unconstitutional because it violates the eighth

amendment of the U.S. Constitution (U.S. Const., amend. VIII) and the proportionate penalties

clause (Ill. Const. 1970, art. I, § 11) of our state constitution. The fix, he says, is to declare both

the consecutive-sentence mandate for murder (730 ILCS 5/5-8-4(d) (West 2016)) and the truth-

in-sentencing statute requiring him to serve 100 percent of that sentence (730 ILCS 5/3-6-

3(a)(2)(i) (West 2016)) unconstitutional as applied to him, then remand for re-sentencing.

¶ 39 First, we must determine if there is anything constitutionally offensive with his current

sentence. The defendant must show his sentence is 1) a life sentence, mandatory or discretionary,

natural or de facto; and 2) imposed without consideration of the defendant’s youth and its

attendant characteristics. Buffer,

. As noted above, for now, at least, under

Holman,

, a juvenile defendant may only be sentenced to life imprisonment

without parole if the trial court determines that the defendant is irretrievably depraved,

permanently incorrigible, or irreparably corrupt beyond the possibility of rehabilitation. Failure

to comply with Miller must be shown; it is never presumed. People v. Chambers, 2021 IL App

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(4th) 190151, ¶ 65. Our review is de novo. Holman,

.

¶ 40 A. Defendant was subject to a mandatory de facto life sentence

¶ 41 We start with the sentencing scheme defendant faced at re-sentencing. To comply with

Miller, the General Assembly removed 17-year-olds from the corrections code’s multiple-murder

natural-life sentence mandate in 2016, after defendant had first been sentenced. See 730 ILCS

5/5-8-1 (West 2016). This time around, the law no longer required the court to sentence

defendant to natural life. But defendant says it ultimately doesn’t matter; the difference between

the sentencing scheme that first applied to him and the scheme that applied at his re-sentencing

was, for all intents and purposes, the same.

¶ 42 The cause, he says, is twofold. First, section 5-8-4(d)(1) of the Uniform Code of

Corrections mandates that each murder sentence run consecutive to the other. Second, because

murder does not entitle him to any good-conduct credit under Illinois’s Truth-in-Sentencing

statute, he must serve 100 percent of any sentence he’s given. Since defendant was convicted of

three separate murder charges, and the minimum sentence for murder is 20 years, the minimum

he could be sentenced to is 60 years in prison—a de facto life sentence, per Buffer.

¶ 43 First-degree murder carries with it a base sentencing range of 20 to 60 years, without any

applicable enhancements. 730 ILCS 5/5-4.5-20 (West 2016). But a first-degree murder

conviction also triggers Section 5-8-4(d)(1) of the Unified Code of Corrections, which mandates

consecutive sentences on all other independent charges to which defendant is sentenced. 730

ILCS 5/5-8-4(d)(1) (West 2016). In other words, the sentence on a consecutive-triggering

offense must be served prior to and independent of any other sentence. People v. Curry,

(1997), abrogated on other grounds by People v. Hale,

. Because

defendant cannot receive any good-time credit off his murder sentence, 730 ILCS 5-3-6-

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3(a)(2)(i) (West 2016), he must serve every day sentenced.

¶ 44 So defendant is correct: under the law that applied to him at re-sentencing, he could not

receive anything less than a sentence of 60 years—20 years per count of murder, each of which

must run consecutively to the others. Boxed in, even if the court could consider defendant’s

youth and its attendant characteristics, it could not give him any relief; sixty years was the

minimum aggregate sentence. And that is obviously a problem, as Miller forbids “a sentencing

scheme that mandates life in prison without the possibility of parole for juvenile offenders”

(Miller,

), which in Illinois means any sentence greater than 40 years. Buffer,

.

¶ 45 For a juvenile defendant in Illinois, there is no difference in the eyes of the law between a

60-year sentence and a natural-life sentence. Since the statutory scheme gave the court no

discretion to sentence defendant to anything other than a de facto natural life sentence, the

sentencing scheme, as applied to this defendant, conflicts with Buffer and Miller and violates the

eighth amendment. (And thus so do the actual consecutive sentences imposed, which were just

over the minimum, a total of 66 years for the three murders.)

¶ 46 Surprisingly, the State tells us we should not consider the three consecutive murder

sentences in the aggregate but, rather, should isolate each of the sentences individually. In other

words, each 22-year sentence is constitutional, because each one is under 40 years,

notwithstanding that it would result in 66 years of incarceration in total. We say we are surprised

by this argument because it is plainly wrong under supreme court precedent.

¶ 47 In People v. Reyes,

, our supreme court aggregated defendant’s

three mandatory consecutive sentences (45 years for murder plus two sentences of 26 years for

two attempted murders) in determining that defendant’s total sentence of 97 years was a de facto

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life sentence. Likewise, in Dorsey,

, the court considered the “aggregate

term” of 76 years (40 for murder, plus two 18-year sentences for attempted murder, all running

consecutively) in determining whether defendant was serving a de facto life sentence. There is

thus no question that here, we consider defendant’s 66-year prison term in the aggregate.

¶ 48 Which only makes sense. The lesson of Reyes, Holman, and Buffer is that a court may not

give up on juveniles, locking them up for life or the functional equivalent of life, unless it first

finds that the juvenile is one of those rare ones incapable of rehabilitation. Holman,

; People v. Ruiz,

. That principle does not split hairs

over how that sentence was constructed or which sentencing mechanism(s) prompted that life

sentence. A juvenile is in prison for life all the same if it was one or more than one sentence that

put him there.

¶ 49 So to answer Buffer’s first question, we look at how long it will be until the defendant

could be released. Thanks to Reyes and Dorsey, we know how to do the math. First, calculate the

aggregated term. Reyes,

; Dorsey,

. Then, subtract the

potential good-conduct credit. Reyes,

, Dorsey,

. If the

result is more than 40 years, it’s a de facto life sentence and it triggers Miller protections. If not,

the challenge fails, and our task is done. People v. Brakes,

.

¶ 50 Here, defendant’s earliest possible release is after 66 years, since there is no good-

conduct credit for his murder convictions, and he must serve 100 percent of the time. 730 ILCS

5/3-6-3 et seq (West 2016). Defendant’s 66-year sentence thus constitutes a de facto life sentence

for the purposes of the eighth amendment. Buffer,

.

¶ 51 B. The court did not find defendant permanently incorrigible

¶ 52 As noted, a juvenile may be sentenced to life in prison, just not mandatorily per statute;

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before doing so, the court must consider the Miller factors and determine whether the defendant

was among those juveniles whose conduct reflects transient immaturity, or if he is among the

rarest of juvenile offenders whose conduct places him beyond the possibility of rehabilitation.

Holman,

. While there are no “magic words” the trial court need utter to

find defendant permanently incorrigible (Ruiz,

), the court must

make findings that indicate that defendant is one of the rare juvenile offenders who is beyond

rehabilitation. Hill,

, ¶ 50.

¶ 53 We should pause here to note that this law continues to evolve even now. After briefing

was completed in this case, the U.S. Supreme Court released Jones v. Mississippi,

,

___,

(2021), where the Court held that Miller and the eighth amendment do

not require a trial court to make a finding of permanent incorrigibility before imposing a life

sentence on a juvenile. Instead, Miller only requires a “discretionary sentencing procedure.”

. The Court emphasized, however, that states are free to impose additional

sentence limits or require specific factual findings before sentencing a juvenile to life without

parole.

¶ 54 Where that will ultimately leave Holman, which read Miller as requiring a finding of

permanent incorrigibility before a juvenile life sentence could be imposed, is unclear—as even

our supreme court recognized in Dorsey,

(Holman’s holding “is

questionable in light of Jones.”). For us, however, Holman is the law until our supreme court

says otherwise. See People v. Fountain,

(appellate court bound

by supreme court’s interpretation of federal law); Mekertichian v. Mercedes-Benz U.S.A., Inc.,

(2004) (“As an inferior court of review, our serving as a reviewing

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court on our supreme court’s interpretation of federal law would inject chaos into the judicial

process.”).

¶ 55 So with that note aside, current law in Illinois still requires, as a precondition to imposing

a de facto life sentence, that the court consider a defendant’s youth and its attendant

characteristics and then determine that his conduct shows irretrievable depravity, permanent

incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. Buffer,

; Holman,

.

¶ 56 The State says the trial court did just that—it conducted a comprehensive sentencing

hearing and concluded the defendant was incorrigible. We see it differently.

¶ 57 When defendant was first sentenced in 2001, his sentencing hearing was little more than

performative; the outcome (mandatory natural life in prison) had already been written. The

original sentencing judge noted his lack of discretion, after making it clear that he found a

sentence of natural life to be harsh and possibly excessive in light of defendant’s limited

participation in the crime.

¶ 58 At the re-sentencing hearing years later that is under review here, defendant presented

extensive mitigating evidence, while the State offered substantial evidence and argument in

aggravation. We agree that defendant was given a comprehensive re-sentencing hearing, and the

court had an opportunity to consider his youth and its attendant characteristics. But we do not

agree that the court found defendant permanently incorrigible.

¶ 59 Most importantly, the trial court never uttered those words or anything close to them. No

mention of permanent incorrigibility or irreparable corruption or lack of rehabilitative potential

or anything of the sort. That may well owe to the fact that our supreme court’s decision in

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Holman had not yet come down, and the trial court did not think it needed to make such a finding

before imposing a de facto life sentence.

¶ 60 More likely, the court made no such finding because the trial court didn’t think it was

imposing a life sentence. After all, our supreme court’s decision in Buffer, which demarcated a

40-year bright line, had not yet come down. And the trial court made clear that it did not believe

the sentence it was imposing would imprison defendant forever: “This is not a life sentence. This

is a sentence that will allow his release at an older age, but there is a release out there.”

¶ 61 Regardless of the reason why, the court never made a finding, one way or the other, about

the rehabilitative potential of defendant. The State tries to pluck stray comments from the

transcript, but we are not convinced. True, the court found its sentence “woefully inadequate to

reflect the seriousness of the offense” and noted that a life sentence would not be

“inappropriate,” while emphasizing the gravity of three young victims’ lives being lost. But that

did not stop the trial court from imposing the sentence it did—only two years above the

minimum for each of the three murders, what the court itself later deemed a “substantial

reduction” owed in part to the mitigating evidence it heard. A substantial reduction for someone

the court considered beyond redemption?

¶ 62 The court could have imposed three consecutive 60-year sentences. Indeed, the fact that

defendant received barely more than the minimum for each sentence, notwithstanding the gravity

of the crime, would suggest, if anything, that the court heavily considered defendant’s youth and

rehabilitative potential.

¶ 63 But we do not come down conclusively on either side. It is clear to us that, while we

could glean hints in the transcript here or there, the trial court did not believe it was expected to

make a finding about defendant’s rehabilitative potential, and the court did not do so. Lacking a

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clear finding that the defendant is beyond rehabilitation, we decline to read one into the record.

Luna,

, ¶ 27.

¶ 64 We cannot fault the trial judge, who conducted the re-sentencing hearing before Buffer

told him that a sentence of over 40 years was a de facto life sentence, and before Holman told

him that he had to make a finding of permanent incorrigibility before imposing such a sentence.

Regardless, that is where we find the matter—a sentence of de facto life imprisonment was

imposed without a finding first that defendant was beyond rehabilitation. See DiCorpo,

; Reyes,

. Under existing law, that sentence

violates the eighth amendment and must be vacated. In light of this disposition, we need not

consider defendant’s argument regarding the proportionate penalties clause.

¶ 65 IV. Instructions upon re-sentencing

¶ 66 On remand, defendant must, of course, be re-sentenced. But we are reluctant to give too

much guidance to the trial court based on the record and the appeal before us, given the rapid

fluctuation in eighth-amendment jurisprudence, and given that some interval of time will pass

before this case goes to re-sentencing.

¶ 67 For example, we have just vacated defendant’s sentence because it was a de facto life

sentence and, under Holman, the trial court cannot impose such a sentence unless it first makes a

finding of permanent incorrigibility. That is clearly the law today. But will it be by the time

defendant is re-sentenced? Our supreme court has not hidden the fact that its holding in Holman

is “questionable” in light of more recent decisions from the U.S. Supreme Court. Dorsey,

. The parties and the trial court will need to be attuned to the most recent

pronouncement from our supreme court on that question.

¶ 68 We would also note the law passed in 2019 in Illinois, which mandates a parole hearing

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after 20 years for juveniles convicted of murder in most circumstances. See 730 ILCS 5/5-4.5-

115(b) (West 2020). Does that statute apply to defendant on re-sentencing? At first blush, it

appears to, but we will not definitively answer that question, as it is not before us and has not

been briefed. Nor has this question: If, in fact, defendant is eligible for a parole hearing after 20

years, does that parole hearing constitute a meaningful opportunity for release and thus comply

with Miller,

, even if the sentence is otherwise a de facto life sentence? See People

v. Beck,

(new juvenile-parole statute provides meaningful

opportunity for release, thus satisfying eighth amendment even if sentence for juvenile is more

than 40 years).

¶ 69 The parties and the court, on re-sentencing, will need to answer these questions, based on

prevailing law at that time, before a constitutional sentence can be imposed. To say more than

that, at this juncture, would not only put us in a position of opining on matters not before us but,

more importantly, would run the risk that we will say something today that may not be true

tomorrow.

¶ 70 CONCLUSION

¶ 71 The judgment of the circuit court is vacated. The cause is remanded for re-sentencing

consistent with this opinion.

¶ 72 Vacated and remanded.

¶ 73 Presiding Justice Gordon, specially concurring:

¶ 74 I concur that this case should be remanded for resentencing, but only for the reasons

stated below.

¶ 75 Before I discuss my reasons, I must correct some misimpressions that may have been

created by the majority order. First, as I explain below, this was both a discretionary sentence

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and a sentence that the trial court imposed with Miller and its progeny in mind.

¶ 76 In the case at bar, the 17-year-old defendant was convicted and sentenced originally to

natural life in prison. However, he filed a postconviction petition claiming that his mandatory

life sentence was unconstitutional pursuant to Miller and its progeny, and the trial court agreed.

The court granted the petition and held a new sentencing hearing pursuant to Miller.

¶ 77 At the resentencing hearing held on January 31, 2017, the trial court had the benefit of

Miller and all the Miller progeny up to that date—although, obviously, not the benefit of any

precedent decided in the last four years, such as Buffer and Holman, which were both decided

after defendant’s resentencing. 1

¶ 78 The trial court chose to exercise its discretion to sentence defendant to a total of 66 years,

or six years above the mandatory minimum, for three first-degree murder convictions under an

accountability theory. In light of the trial court’s exercise of discretion in sentencing defendant

to a higher sentence, the resulting 66-year sentence was not a mandatory sentence but a

discretionary one.

¶ 79 Although discretionary, it was imposed based on what we now know to be an erroneous

premise. Regarding the 66-year sentence that it had just imposed, the trial court stated: “This is

not a life sentence. This is a sentence that will allow his release at an older age, but there is a

release out there.” Two years after the trial court made that statement, the Illinois Supreme

Court found that sentences of more than 40 years, imposed upon juveniles such as defendant, are,

in fact, life sentences. Buffer,

. For this reason, a remand and resentencing

1 Although defendant’s resentencing was held in 2017, which was the same year that Holman was decided, Holman was decided on September 21, 2017, which was eight months after the resentencing in this case. Holman,

. Buffer was decided on April 18, 2019. Buffer,

.

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are required.

¶ 80 Second, the proportionate penalties clause was argued in the court below and must be

considered separately. The majority’s order conflates the eighth amendment with the

proportionate penalties clause to determine whether the sentence is “constitutional.”

Respectfully, I also believe the order fails to consider the full impact of Jones v. Mississippi,

,

(2021), on the case before us.

¶ 81 The Illinois Supreme Court decided both Buffer and Holman exclusively under the eighth

amendment. However, the United States Supreme Court case of Jones calls into question the

continued vitality of these two cases, at least in federal eighth-amendment jurisprudence. If we

are going to continue to apply these two cases, then we need to explain what justifies our doing

that. The majority’s order acknowledges the problem but sidesteps it by saying we must apply

these cases until our own supreme court tells us not to. Supra ¶ 54. Although I agree with that

statement, our supreme court depends on us, its appellate courts, to refine and analyze issues

prior to the supreme court’s ultimate resolution Review by a multitude of panels clarifes the

issues, like many hands burnishing a coin. Thus, I explain below what Jones stands for, how it

applies to Buffer and Holman, and the impact that these two cases continue to have on our state’s

jurisprudence.

¶ 82 As noted, in the case at bar, defendant received a discretionary 66-year sentence. Supra

¶¶ 22-23. The Jones Court found that, under the eighth amendment, “a discretionary sentencing

procedure suffices to ensure individualized consideration of a defendant’s youth.” Jones,

,

. If that was all the Court wrote, then a discretionary sentence such

as defendant’s sentence would be beyond the reach of an eighth-amendment challenge, such as

the one defendant has made here.

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¶ 83 However, the Jones Court was careful to carve out exceptions to its blanket statement,

finding: (1) that it did not apply to as-applied claims under the eighth amendment or claims of

disproportionality under the eighth amendment; and (2) that it did not preclude states from

imposing additional sentencing limits under their own constitutions and statutes. Jones,

,

.

¶ 84 The latter is particularly important, since this court has repeatedly found that our own

state’s proportionate penalties clause provides broader protections than the eighth amendment

provides. People v. Franklin,

(“the proportionate penalties

clause offers a broader path to the same types of relief”); accord People v. Glinsey,

; People v. Jones,

. “The purpose of the

proportionate penalties clause is to add a limitation beyond those provided by the eighth

amendment.” People v. Minniefield,

; accord Glinsey,

; Jones,

; Franklin,

. “Thus, the proportionate penalties clause goes further than the eighth amendment

in offering protection against oppressive penalties and sentences.” Minniefield,

; accord Glinsey,

; Jones,

.

¶ 85 Although our own proportionate penalties clause is broader, the Illinois Supreme Court

decided both Buffer,

, and Holman,

, ¶¶ 33, 40, 41,

exclusively under the eighth amendment, thereby raising the question of their continued vitality

in a post-Jones world. People v. Dorsey,

(the continued validity of Holman

in eighth amendment jurisprudence is “questionable in light of Jones”). In the case at bar, the

majority applied both Buffer and Holman without discussing whether these cases are still sound

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jurisprudence.

¶ 86 First, in Holman, the Illinois Supreme Court found that the United States Supreme

Court’s eighth-amendment jurisprudence applied to discretionary sentences. Specifically, our

supreme court found that a discretionary life sentence for a juvenile offender “violate[s] the

eighth amendment, unless the trial court considers youth and its attendant characteristics.”

Holman,

. The Illinois Supreme Court provided a list of those attendant

characteristics and found that a sentencing court must consider this list or some variant of it, in

order to satisfy the eighth amendment. Holman,

. By contrast, in

Jones, the United States Supreme Court found that a discretionary procedure generally provides

all the safeguards to which a juvenile is entitled under the eighth amendment. Jones,

,

. The United States Supreme Court found that, if a sentencing court had

the discretion to consider youth, then, by necessity, the sentencing court must have considered it,

and no “on-the-record explanation” is “required.” Jones,

,

.

¶ 87 Even though the Illinois Supreme Court decided Holman solely under the eighth

amendment, the logic and reasoning by our supreme court in Holman also set a floor or

minimum for our own proportionate penalties clause. In other words, if our court understood the

narrower eighth amendment to guarantee these protections, then our own broader clause must

also guarantee them as a minimum or baseline. Since the guarantees of our own proportionaties

penalty clause do not change when the United States Supreme Court’s eighth-amendment

jurisprudence does, Holman is still good law under our own Illinois constitution.

¶ 88 Second, in Buffer, the Illinois Supreme Court found that, under the eighth amendment, a

life sentence for a juvenile—including a discretionary sentence—was a sentence over 40 years.

Buffer,

. While making this numerical finding exclusively under the

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eighth amendment, our supreme court determined this number based solely on an examination of

our own state’s recent legislative enactments. Buffer,

. Our

supreme court explained that “the entity best suited” to chart a numerical course was the Illinois

“General Assembly.” Buffer,

. The 40-year number was determined, not

by an examination of federal laws or laws in the various 50 states, but rather “charted” by our

own state legislature. Buffer,

. While deciding the case under the eighth

amendment (Buffer,

), our supreme court also found that “[t]his conclusion

accords with Illinois law” (Buffer,

). Thus, Buffer, like Holman, continues

to apply to discretionary sentences pursuant to our state’s proportionate penalties clause.

¶ 89 While the United States Supreme Court’s eighth-amendment jurisprudence is in flux, 2

and since Jones casts doubt on the continued vitality of Buffer and Holman under the federal

constitution’s eighth amendment, the sentencing claims by a juvenile or a young adult in an

Illinois court are better evaluated under our own, broader, proportionate penalties clause. Thus, I

find, pursuant to Buffer and our own proportionate penalties clause, a resentencing is required

due to the trial court’s erroneous assumption that 66 years was not a de facto life sentence.

¶ 90 However, finding that a remand is necessary is merely the start of the issues before us.

We also need to determine what our statutes permit a trial court to do on remand. The

majority’s order gives the trial court a list of unanswered questions and little statutory guidance.

Supra ¶¶ 67-69. When it comes to sentencing, a sentencing court needs to start first with our

state’s sentencing statutes.

2 Justice Sotomayor observed that Jones represented “an abrupt break from precedent” and that the “Court is fooling no one” when it writes otherwise. Jones,

,

(Sotomayor, J., dissenting). Accord Jones,

,

(Thomas, J., specially concurring) (“the majority adopts a strained reading” of prior precedent).

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¶ 91 Section 5-4.5-105 of the Unified Code of Corrections (Code) governs the sentencing of

juvenile offenders, and it permits a trial court to “sentence the [juvenile] defendant to any

disposition authorized for the class of the offense of which he or she was found guilty.”

(Emphasis added.) 730 ILCS 5/5-4.5-105(b) (West 2018).

¶ 92 The “class” of offense of which defendant was found guilty was first-degree murder. 730

ILCS 5/5-4.5-10(a)(1) (West 2018). Section 5-4.5-10 of the Code sets forth the different classes

of offense and provides that first degree murder is its own “separate class of felony.” 730 ILCS

5/5-4.5-10(a)(1) (West 2018). One “disposition authorized for [this] class” of offense is a

sentence of “not less than 20 years and not more than 60 years.” 730 ILCS 5/5-4.5-25 (West

2018). Since the juvenile sentencing provision frees a trial court to impose “any” disposition

authorized for this “class of offense,” the trial court may impose 20-year concurrent sentences in

the case at bar. 730 ILCS 5/5-4.5-25 (West 2018). 3

¶ 93 This interpretation of this provision is consistent with other parts of the Code.

“[S]ections of the same statute should be considered so that each section can be construed with

every other part or section of the statute to produce a harmonious whole.” Board of Education of

City of Chicago v. Moore,

.

¶ 94 For murders committed under certain circumstances, subsection (c) of section 5-8-1 of

the Code requires natural life in prison (730 ILCS 5/5-8-1(c) (West 2018)), which we now know

is more than 40 years for a juvenile. Buffer,

.

¶ 95 Section 5-4.5-105, the juvenile sentencing provision, requires “a sentence of not less than

40 years,” or life, for some of the circumstances listed in subsection (c) of section 5-8-1—but for

3 But, as I discuss later on pages 10-11, the trial court cannot impose a 40-year or more sentence without first finding that defendant is permanently incorrigible.

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not all of them. 730 ILCS 5/5-4.5-105(c) (West 2018). The legislature required a 40-year

minimum sentence for a juvenile if circumstances (iii) through (vii) appeared, but it quite

deliberately chose to leave (i) and (ii) off this list. 730 ILCS 5/5-4.5-105(c) (West 2018). Thus,

40 years is required as a minimum for juveniles who murdered a police officer, a firefighter, a

corrections officer, an emergency medical technician or a community policing volunteer. See

730 ILCS 5/5-8-1(c) (West 2018); Buffer,

, ¶¶ 37-39. However, the juvenile

sentencing provision, recently enacted by our legislature (730 ILCS 5/5-4.5-105(c) (West 2018)),

does not require a 40-year minimum sentence if the juvenile was “(i) ***previously ***

convicted of first degree murder” or “(ii) *** found guilty of murdering more than one person.”

730 ILCS 5/5-8-1(c) (West 2018).

¶ 96 The legislature’s choice to leave multiple murders off its list of mandatory 40-year

punishments is consistent with our interpretation that consecutive sentences are not required for

multiple victims under the new juvenile sentencing provision.

¶ 97 After finding that our statutes give the trial court the discretion to utilize a sentencing

range with a 20-year minimum, the next question is what the maximum is. As we observed

above, the juvenile sentencing provision permits a trial court to impose “any” disposition

authorized for this “class of offense” (730 ILCS 5/5-4.5-25 (West 2018)), which includes life.

While the juvenile sentencing provision (730 ILCS 5/5-4.5-105(c) (West 2018)) does not require

a 40-year minimum sentence if the juvenile was “(i) ***previously *** convicted of first degree

murder” or “(ii) *** found guilty of murdering more than one person” (730 ILCS 5/5-8-1(c)

(West 2018)), it does not bar it either.

¶ 98 However, before imposing a more-than-40-year sentence, the trial court must first find

that defendant is permanently incorrigible. As this court has observed numerous times, under

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Holman, “a juvenile defendant may be sentenced to life or de facto life imprisonment, but before

doing so, the trial court must ‘determine[ ] that the defendant’s conduct showed irretrievable

depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of

rehabilitation.’ ” People v. Peacock,

(quoting Holman,

); People v. DiCorpo,

; People v. Figueroa,

.

¶ 99 In sum, pursuant to our state’s proportionate penalties clause, I concur that we must

remand for resentencing due to the trial court’s incorrect presumption, now in violation of Buffer,

that defendant’s 66-year sentence was not a de facto life sentence. On remand, the trial court

must carefully consider the statutory guidelines for sentencing juveniles set forth by our

legislature in section 5-4.5-105(a) of the Code (730 ILCS 5/5-4.5-105(a) (West 2018)), and

fashion an appropriate sentence from a sentencing range of 20 years to life. However, it may not

sentence defendant to de facto life, or more than 40 years, unless it first finds that he is

permanently incorrigible.

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