People v. Morfin

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Morfin, 2012 IL App (1st) 103568

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption NICHOLAS MORFIN, Defendant-Appellant.

District & No. First District, Third Division
Docket No. 1-10-3568

Filed November 30, 2012

Held The mandatory life sentence imposed on defendant for two counts of first
(Note: This syllabus degree murder committed when he was a minor was vacated and the
constitutes no part of cause was remanded for a new sentencing hearing on the ground that
the opinion of the court pursuant to Teague, Miller is retroactively applicable to defendant’s case
but has been prepared on collateral review, and under Miller, a new sentencing hearing was
by the Reporter of required for defendant, and at the hearing, possible sentences include
Decisions for the natural life, 20 to 60 years, or up to 100 years if an extended-term finding
convenience of the is made.
reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 96-CR-1838; the
Review Hon. Arthur F. Hill, Jr., Judge, presiding.

Judgment Vacated and remanded with directions.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Jonathan Steffy, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Michelle Katz, Assistant State’s Attorneys, of counsel), for the People.

Panel PRESIDING JUSTICE SALONE delivered the judgment of the court,
with opinion.
Justice Steele concurred in the judgment and opinion.
Justice Sterba specially concurred, with opinion.

OPINION

¶1 Defendant Nicholas Morfin appeals from an order of the circuit court dismissing his
second or successive petition for relief from judgment (735 ILCS 5/2-1401 (West 2010))
challenging his mandatory sentence of natural life imprisonment for two counts of first
degree murder on the basis that he was a minor at the time of his offenses. Defendant
contends that a mandatory life sentence for an offender under 18 years old violates the
Illinois constitutional requirement of proportionate penalties and the federal constitutional
prohibition against cruel and unusual punishments. In particular, he contends that his claim
is meritorious under the United States Supreme Court decision in Miller v. Alabama, 567
U.S. ___, 132 S. Ct. 2455 (2012). The State responds that defendant’s constitutional
challenges to his sentence are barred as res judicata and are not meritorious, and particularly
contends that Miller does not apply herein as it is a new rule of law that cannot be applied
retroactively on collateral review. For the reasons stated below, we agree with defendant,
vacate his sentence, and remand for resentencing consistent with Miller.

¶2 BACKGROUND
¶3 Pretrial and Trial Proceedings
¶4 Defendant–along with codefendants William Bigeck, Eric Anderson, Nicholas Liberto,
and Edward Morfin (Edward)–was charged with first degree murder in the shooting deaths
of Carrie Hovel and Helena Martin, and three counts each of attempted first degree murder
and aggravated discharge of a firearm for allegedly shooting at Bryan Adasiak, Peter
Casanas, and Melissa Shibla, all allegedly done on or about December 14, 1995.
¶5 Defendant was tried in 1997 in a severed jury trial upon the first degree murder charges
alone. Bigeck and Edward, eligible for the death penalty as each was over 18 years old at the
time of the offenses, had each pled guilty to one count of first degree murder, with the other
charges dismissed and a 30-year prison sentence recommended by the State, in exchange for

-2-
 testimony against their codefendants.
¶6 According to the trial evidence, codefendants Anderson and Bigeck stole two revolvers
from a police officer’s home on the morning in question and brought them to defendant’s
home. There, defendant and Anderson test-fired the guns in the basement, then defendant hid
one of the guns, wrapped in a rubber glove, in the cushions of his bedroom sofa. Defendant,
Anderson, and Bigeck were all members of the Almighty Popes street gang, and they met
after the gun theft with leaders of that gang, who ordered them to attack members of the rival
Ridgeway Lords gang found in Almighty Popes’ territory. Anderson was to actually do the
shooting, while defendant was to wipe off fingerprints and file off serial numbers from the
stolen guns; he did so. That afternoon, defendant was riding in an older gray or silver sedan
with codefendants Liberto, Edward, and Anderson when defendant saw in Almighty Popes
territory a tan van that the gang associated with the Ridgeway Lords; defendant said that they
should “pull a burn on the van”; that is, shoot up the van. The gray sedan passed the van two
or three times, then drove away. At about 6 p.m., Edward, Anderson, and Bigeck walked to
the parked van, occupied by teenagers Hovel, Martin, Adasiak, Casanas, and Shibla. Adasiak
was a member of the Ridgeway Lords. As Casanas started to drive away upon seeing the
young men approaching, Anderson fired several shots at the van and Hovel and Martin were
fatally shot. While defendant was supposed to provide a ride to Anderson and the others to
and from the shooting, they walked to the shooting and there was no car waiting for them
afterwards.
¶7 In lineups, Adasiak and Casanas identified Anderson and Bigeck as two of the young
men from the shooting. After the shooting, Liberto was seen parking and exiting an older
gray car that was identified by Casanas as the one that passed the van before the shooting.
Edward and Bigeck testified to their participation in the aforementioned events. Other
members of the Almighty Popes testified that defendant, Anderson, and Bigeck were
members of that gang, that the Almighty Popes associated the tan van with the Ridgeway
Lords, that defendant, Anderson, and Bigeck were ordered to attack the Ridgeway Lords, and
that Anderson and Bigeck admitted to stealing two guns that were then test-fired in
defendant’s basement and from which defendant filed serial numbers. A police officer
testified that two revolvers were stolen from her home on the day in question, and she
identified Bigeck as one of the two suspicious men she had seen outside her home just before
leaving it. Defendant led officers to his home, where they found one of the stolen pistols
wrapped in a latex glove in the cushions of a sofa in his bedroom as well as bullet fragments
from a dresser in the bedroom and more bullet fragments and pock-marked walls in the
basement. Edward brought the police to where the other stolen gun was hidden, and forensic
testing found that this latter gun fired the bullets and fragments taken from Hovel and Martin
and from defendant’s bedroom. A police gang-crimes detective explained that certain of
defendant’s tattoos, and gestures by defendant and Anderson in three photographs depicting
them together, indicated membership in the Almighty Popes. The detective also explained
that a phrase in a postarrest letter from defendant–“Folk killing for a living”–indicated “his
lifestyle as a Folks killer,” with the Ridgeway Lords being in the Folks affiliation of gangs.
¶8 The jury found defendant guilty of the first degree murders of Hovel and Martin. Posttrial
motions were denied.

-3-
¶9 Sentencing Proceedings
¶ 10 Defendant’s presentence investigation report (PSI) showed no prior criminal convictions
or juvenile adjudications. It indicated that he was raised by his employed and married parents
with the assistance of his grandparents, that he completed grade school and had attended over
three years of high school when he was arrested for the instant offenses, and that he was in
good physical and mental health with limited alcohol and marijuana usage. Defendant
admitted to former membership in the Almighty Popes gang, which ended in mid-1996, and
that many codefendants were also members of that gang. The PSI, and other documents in
the record, states defendant’s date of birth as June 12, 1978.
¶ 11 Defendant filed a motion seeking to be sentenced to a term of years in prison on the basis
that the statutorily mandated natural life sentence for committing two or more murders would
violate his constitutional rights to due process and equal protection, to meaningful assistance
of counsel, to have his rehabilitative potential considered in sentencing, and to be free from
cruel and unusual punishment. Defendant admitted that the statute had been previously
upheld against constitutional challenge but argued that his particular circumstances called
for a different result. He noted that he was 17 years old at the time of the offenses with no
prior convictions or juvenile adjudications, and that he was found guilty on an accountability
basis. By contrast, he argued, codefendants Bigeck and Edward were adults at the time of the
offense who were armed at the scene of the crime, confessed to their participation therein,
and had a prior conviction (Edward) or admitted prior offenses (Bigeck). Nonetheless, the
State agreed to dismiss one murder count each against Edward and Bigeck and seek prison
terms of 30 years for each. Defendant argued that “it would be fundamentally unfair” as well
as cruel and unusual to sentence him to natural life imprisonment under such circumstances.
As to meaningful assistance of counsel, defendant argued that the mandatory nature of the
life sentence rendered meaningless any mitigation that his counsel would present at
sentencing.
¶ 12 On May 22, 1998, the court denied the motion and held the sentencing hearing. The State
introduced victim impact statements from Martin’s mother and Hovel’s father, mother,
stepfather, and grandmother, while the defense introduced 20 letters on defendant’s behalf.
Defendant chose not to personally address the court. The court then sentenced defendant to
two concurrent terms of natural life imprisonment. Defendant timely filed a motion to reduce
his sentence, making the same arguments as in his presentencing motion to be sentenced to
a term of years in prison. The motion was denied.

¶ 13 Direct Appeal and First Vacatur Petition
¶ 14 On direct appeal, defendant contended that (1) he was arrested without probable cause,
(2) the trial court allowed improper gang evidence against him, (3) the court also improperly
admitted “other-crimes” evidence regarding his prior interactions with police, (4) the State
made multiple improper arguments, and (5) the State failed to disclose potentially
exculpatory evidence regarding a State witness. Defendant also contended that his mandatory
sentence of natural life imprisonment was unconstitutional. This court affirmed defendant’s
convictions and sentence, noting in relevant part that the mandatory life sentence provision

-4-
 had been upheld (1) on the basis that no possible mitigating evidence can overcome the
statute, and (2) against challenges from youthful offenders and from defendants convicted
on an accountability basis. People v. Anderson, Nos. 1-98-2390, 1-98-2438 cons. (2000)
(unpublished order under Supreme Court Rule 23).1
¶ 15 In 2005, defendant, through counsel, filed a petition to vacate his sentence as void,
arguing that the statute mandating natural life imprisonment for two or more murders was
unconstitutional on its face and as applied to him. He cited People v. Miller, 202 Ill. 2d 328
(2002), where our supreme court held the statute unconstitutional under the Illinois
proportionate-penalties clause as applied to a 15-year-old convicted on an accountability
basis and affirmed the trial court’s sentence of 50 years’ imprisonment. Defendant
acknowledged that he, unlike Miller, was over 17 years old but argued that this should not
bar him from the same relief as Miller. Defendant also argued that the statute and his
sentence thereunder violate the federal prohibition on cruel and unusual punishments because
they make no distinction between juvenile and adult offenders, citing Roper v. Simmons, 543
U.S. 551 (2005), where the United States Supreme Court found unconstitutional the
imposition of the death penalty on persons under 18 years old at the time of their offenses.
¶ 16 The State moved to dismiss the petition, noting that Miller held the statute at issue
unconstitutional as applied to Miller in particular while expressly declaring that a natural life
sentence against a juvenile convicted through accountability could be constitutionally
appropriate under different circumstances. The State argued that defendant was not a juvenile
at the time of his offense as he was 17 years old and that his culpability for the instant
offenses was greater than Miller’s culpability. Also, the State argued that the constitutionality
of defendant’s sentence was res judicata as it was raised and ruled upon in the direct appeal.
¶ 17 In March 2006, the circuit court granted the State’s motion to dismiss, finding that the
constitutionality issue was barred as res judicata, that Miller did not categorically prohibit
natural life sentences for juveniles convicted of two or more murders through accountability,
and that defendant was more culpable than Miller so that Miller does not apply here.
¶ 18 On appeal, this court affirmed the dismissal, holding that the constitutionality of
defendant’s sentence was res judicata and rejecting his argument that res judicata did not
bar his claim based on new law; specifically, Miller. This court found that (1) Miller applies
only to juveniles, while defendant as a 17-year-old was not a juvenile, and (2) Roper
concerned the constitutionality of the death penalty for minors and does not require the same
result for natural life sentences for minors. People v. Morfin, No. 1-06-0945 (2007)
(unpublished order under Supreme Court Rule 23).

¶ 19 Instant Proceedings Under Section 2-1401(f)
¶ 20 Defendant filed the instant pro se petition for relief from a void judgment in July 2010,

1
Codefendant Anderson, convicted of two counts of first degree murder in a separate jury
trial and sentenced to natural life imprisonment, raised many of the same contentions as defendant
in the consolidated appeal, including the constitutional challenges to the mandatory life sentence
provision. His convictions and sentence were also affirmed.

-5-
 arguing that the court had no authority to extend his sentence to natural life imprisonment
because (1) it had no authority to find him guilty of more than one murder as there was no
evidence of his intent to kill more than one person, and (2) his conviction was on an
accountability basis. He asserted that the claims in the instant petition had not been raised
on direct appeal or an earlier collateral petition.
¶ 21 On August 18, 2010, the circuit court dismissed the petition, finding that defendant was
not presenting any new evidence, that defendant’s intent to kill need not be proven to
properly convict him of first degree murder, and that such a claim was forfeited because it
could have been raised earlier. Defendant filed a pro se motion for reconsideration, which
the court denied on October 7, 2010. This appeal followed.

¶ 22 ARGUMENTS OF THE PARTIES
¶ 23 Defendant contends that the statute mandating natural life imprisonment for any person
who murders more than one person is unconstitutional as applied to a minor, under the
Illinois constitutional requirement of proportionate penalties and the federal constitutional
prohibition against cruel and unusual punishments. Fundamentally, he argues that the
mandatory nature of the sentence precludes consideration of a defendant’s rehabilitative
capacity, which is of particular importance for minors as the law recognizes their reduced
capacity and responsibility. Defendant contended that “he was minimally involved in the
commission of the offense.”
¶ 24 The State responds that defendant’s constitutional challenge should be barred as res
judicata. The State also contends that People v. Miller does not apply to defendant’s case
because (1) though a minor at the time of his offenses, he was not a juvenile; that is, not
under 17 years old, and (2) his involvement in the planning and preparation of the instant
offenses was well beyond Miller’s nearly passive role in his offenses. The State argued that
nothing in federal or Illinois case law since Miller had categorically barred natural life
imprisonment for minors convicted of homicide, and indeed Illinois courts recently rejected
such contentions.
¶ 25 Since defendant’s initial brief, the United States Supreme Court handed down Miller v.
Alabama, which defendant first cites–and relies upon heavily–in his reply brief. The Miller
v. Alabama Court held that the federal constitution’s ban on cruel and unusual punishments
forbids a mandatory sentence of life imprisonment without possibility of parole upon
offenders who were minors at the time of their offense. Defendant contends that Miller v.
Alabama squarely governs here and renders his mandatory life sentence void ab initio so that
there is no res judicata effect from this court’s earlier orders. He also argues that “Illinois
courts have rejected similar res judicata arguments in post-conviction petition appeals where
new law has been established after the pendency of a defendant’s direct appeal.”
¶ 26 The State has responded in a supplemental brief, arguing that Miller v. Alabama is not
applicable here because it constitutes a new rule of procedural law and thus cannot be applied
to cases on collateral review such as the instant case. The State argues that Miller is new law
because it imposes a new obligation or restriction on the federal and state governments. The
State also argues that Miller does not fall under either of the exceptions to the

-6-
 nonretroactivity rule. (1) It does not prohibit the State from imposing natural life
imprisonment on minors but only from doing so mandatorily; that is, without discretion to
impose a lesser sentence. (2) It does not require a procedure implicit in the concept of
ordered liberty; that is, it does not recognize a previously unrecognized bedrock procedural
rule essential to the fairness of the proceedings. The State noted that this court has held that
People v. Miller is inapplicable retroactively on collateral review because it did not create
or impose a categorical ban on natural life sentences for juveniles convicted on an
accountability basis.
¶ 27 In his supplemental brief, defendant contends that Miller v. Alabama created a new rule
of substantive law–as opposed to procedural law–applicable retroactively on collateral
review. Moreover, defendant argues, Miller falls under the second exception to
nonretroactivity because a lack of discretion whether to impose a natural life sentence
“creates an unacceptably high risk that the sentence will be disproportionate.” Defendant
argues that, in a companion collateral-review case to Miller v. Alabama, the Supreme Court
applied Miller and thus indicated its intent that Miller be applied retroactively. Defendant
also argues that a sentence that is void ab initio must be vacated. As to People v. Miller being
nonretroactive, defendant argues that it does not categorically ban natural life imprisonment
for juveniles convicted on an accountability basis while Miller v. Alabama categorically bans
mandatory natural life imprisonment of minors. Lastly, defendant argues that this court
should not apply a retroactivity analysis at all because our supreme court erroneously
followed the United States Supreme Court’s Teague retroactivity test though the Supreme
Court has ruled that it is not binding upon the states. Teague v. Lane, 489 U.S. 288 (1989).

¶ 28 ANALYSIS
¶ 29 General Governing Principles
¶ 30 Section 2-1401 of the Code of Civil Procedure governs “[r]elief from final orders and
judgments, after 30 days from the entry thereof,” and paragraph (f) provides that “[n]othing
contained in this Section affects any existing right to relief from a void order or judgment,
or to employ any existing method to procure that relief.” 735 ILCS 5/2-1401(a), (f) (West
2010). A petition challenging a judgment as void is not subject to the limitations period or
due diligence requirements of section 2-1401, and this court reviews de novo the disposition
of a section 2-1401 petition other than after an evidentiary hearing. Parker v. Murdock, 2011
IL App (1st) 101645, ¶¶ 18, 20. However, claims that were raised and decided on direct
appeal are barred as res judicata and claims that could have been raised, but were not, are
deemed forfeited. People v. Sanders, 238 Ill. 2d 391, 398 (2010).
¶ 31 The federal constitution prohibits “cruel and unusual punishments,” while the Illinois
Constitution requires that “[a]ll penalties shall be determined both according to the
seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” U.S. Const., amend. VIII; Ill. Const. 1970, art. I, § 11. That which is
unconstitutional is not necessarily void, because voidness arises from a court’s lack of
authority to issue the judgment in question. People v. Moran, 2012 IL App (1st) 111165,
¶¶ 16-18, 24. A statute that is unconstitutional on its face–that is, where no set of

-7-
 circumstances exists under which it would be valid–is void ab initio, while a statute that is
merely unconstitutional as applied is not. People v. One 1998 GMC, 2011 IL 110236, ¶ 20;
Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶¶ 25-27.

¶ 32 The Statute at Issue
¶ 33 At all relevant times, the Unified Code of Corrections provided regarding first degree
murder that:
“the court shall sentence the defendant to a term of natural life imprisonment when the
death penalty is not imposed if the defendant
*** is a person who, at the time of the commission of the murder, had attained
the age of 17 or more and is found guilty of murdering an individual under 12 years
of age; or, irrespective of the defendant’s age at the time of the commission of the
offense, is found guilty of murdering more than one victim[.]” 730 ILCS 5/5-8-
1(a)(1)(c)(ii) (West 2010).
¶ 34 In People v. Miller, 202 Ill. 2d 328 (2002), our supreme court held that this statute
violated the Illinois proportionate penalties clause as applied to its defendant, “a 15-year-old
with one minute to contemplate his decision to participate in the incident and stood as a
lookout during the shooting, but never handled a gun.” Miller, 202 Ill. 2d at 341. The court
therefore held that the statute in question “as applied to defendant, a juvenile offender
convicted under a theory of accountability, violates the proportionate penalties clause” and
affirmed the trial court’s decision to impose a 50-year prison sentence. Id. at 343. However,
the court refused to hold:
“that a sentence of life imprisonment for a juvenile offender convicted under a theory of
accountability is never appropriate. It is certainly possible to contemplate a situation
where a juvenile offender actively participated in the planning of a crime resulting in the
death of two or more individuals, such that a sentence of natural life imprisonment
without the possibility of parole is appropriate.” Id. at 341.

¶ 35 Miller v. Alabama
¶ 36 In Miller v. Alabama, issued June 25, 2012, the United States Supreme Court was faced
with appeals by “two 14-year-old offenders *** convicted of murder and sentenced to life
imprisonment without the possibility of parole. In neither case did the sentencing authority
have any discretion to impose a different punishment.” Miller, 567 U.S. at ___, 132 S. Ct.
at 2460. While Evan Miller was granted certiorari from a direct appeal, the other defendant,
Kuntrell Jackson, was before the Supreme Court on review of the dismissal of a state habeas
petition. Id. at ___, 132 S. Ct. at 2461-63.
¶ 37 The Supreme Court noted its earlier decisions in Roper and Graham v. Florida, 560 U.S.
___, 130 S. Ct. 2011 (2010), declaring unconstitutional the sentencing of a minor–a person
under 18 years old at the time of the offense–to either the death penalty or life imprisonment
without parole for a nonhomicide offense. The Supreme Court also noted that it had held
unconstitutional the mandatory imposition of a capital sentence, so that the characteristics

-8-
 of a defendant and the details of his offense must be considered before sentencing him to
death. The Court found that “Graham and Roper and our individualized sentencing cases
alike teach that in imposing a State’s harshest penalties, a sentencer misses too much if he
treats every child as an adult” because the mandatory nature of the sentence “precludes
consideration of [the offender’s] chronological age and its hallmark features–among them,
immaturity, impetuosity, and failure to appreciate risks and consequences.” Id. at ___, 130
S. Ct. at 2468. Based on these precedents, the Court held:
“[A] judge or jury must have the opportunity to consider mitigating circumstances before
imposing the harshest possible penalty for juveniles. By requiring that all children
convicted of homicide receive lifetime incarceration without possibility of parole,
regardless of their age and age-related characteristics and the nature of their crimes, the
mandatory sentencing schemes before us violate this principle of proportionality, and so
the Eighth Amendment’s ban on cruel and unusual punishment.” Id. at ___, 130 S. Ct.
at 2475.
¶ 38 The Court refused to declare categorically that a minor cannot receive life imprisonment
without parole for a homicide offense, and it expressly distinguished earlier decisions where
mandatory natural life imprisonment of adults was upheld. Id. at ___, 130 S. Ct. at 2469-70
(citing Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding mandatory sentence of life
without parole for possession of more than 650 grams of cocaine)). However, “given all we
have said in Roper, Graham, and this decision about children’s diminished culpability and
heightened capacity for change, we think appropriate occasions for sentencing juveniles to
this harshest possible penalty will be uncommon.” Id. at ___, 130 S. Ct. at 2469.

¶ 39 Voidness
¶ 40 As a threshold matter, we find that Miller v. Alabama does not render the statute in
question or defendant’s sentence thereunder void ab initio. Miller does not affect the validity
of the natural life imprisonment statute as to nonminor defendants, so that the statute is not
unconstitutional on its face. Moreover, Miller does not deprive or divest any state or court
of the authority to sentence a defendant who was a minor at the time of his offense, such as
defendant, to natural life imprisonment for the commission of a homicide.

¶ 41 Applicability of Constitutional Cases on Collateral Review
¶ 42 Because the State has a legitimate interest in the finality of criminal convictions, new
constitutional rules of criminal procedure are generally not to be applied retroactively to
cases on collateral review. Sanders, 238 Ill. 2d at 401; People v. Morris, 236 Ill. 2d 345, 359
(2010). A case announces such a new rule when it breaks new ground or imposes a new
obligation on the states or federal government, so that the result of the case “must not be
‘dictated by precedent existing at the time the defendant’s conviction became final.’ ”
(Emphasis in original.) Sanders, 238 Ill. 2d at 400-01 (quoting Teague v. Lane, 489 U.S. 288,
301 (1989)). Because it is often difficult to determine whether a case announces a new rule,
especially where the new decision was reached by extending the reasoning of prior cases, the
fact that a court asserts that its decision is controlled by, follows the logic of, conforms with,

-9-
 or is consistent with a prior decision is not conclusive or dispositive of whether the case
actually announces a new rule. Id. at 401-02. Instead, the task is to determine whether courts
considering the defendant’s claim at the time his conviction became final would have felt
compelled by existing precedent to conclude that the rule was constitutionally required. Id.
at 402.
¶ 43 There are two exceptions whereby a new constitutional rule may apply retroactively: if
the rule (1) “places certain kinds of primary, private individual conduct beyond the power
of the criminal-law-making authority to proscribe” or (2) “requires the observance of those
procedures that are implicit in the concept of ordered liberty.” Id. at 401. The first exception,
regarding new substantive rules as contrasted to new procedural rules, includes not only
constitutional decisions that particular conduct or persons are beyond the State’s power to
punish, but also a decision that a defendant faces a punishment that the law cannot impose
upon him; that is, a ruling limiting the conduct that constitutionally may be subject to a
certain penalty. Schriro v. Summerlin, 542 U.S. 348, 352 (2004); Lucien v. Briley, 213 Ill.
2d 340, 348 (2004).
¶ 44 Only “ ‘watershed rules of criminal procedure’ ” creating new procedures “without which
the likelihood of an accurate conviction is seriously diminished” fall under the second
exception. Sanders, 238 Ill. 2d at 401 (quoting Teague, 489 U.S. at 311, 313). Our supreme
court has held that, because “Teague makes clear that the focus of the inquiry when
considering whether the second exception applies is the accuracy of the conviction and
finding of guilt,” a constitutional violation regarding sentencing “has nothing to do with
accuracy of the conviction.” Morris, 236 Ill. 2d at 362-63. Thus, “a rule that only affects the
enhancement of a defendant’s sentence does not amount to an error which seriously affects
the fairness, integrity or public reputation of judicial proceedings so as to fall within the
second Teague exception requiring retroactivity in all cases.” Id. at 363.
¶ 45 In support of his argument that we should not conduct a Teague retroactivity analysis,
defendant notes that the Supreme Court held in Danforth v. Minnesota, 552 U.S. 264 (2008),
that the states need not follow Teague; that is, it does not “constrain[ ] the authority of state
courts to give broader effect to new rules of criminal procedure than is required by that
opinion.” Danforth, 552 U.S. at 266. However, as may be seen above, our supreme court has
applied the Teague test since Danforth. Moreover, this court in People v. Davis, 388 Ill. App.
3d 869 (2009), applied Teague despite a Danforth-based challenge, noting that our supreme
court has never held that it was required to follow Teague and that this court has no authority
to disregard or set aside decisions of our supreme court.

¶ 46 Retroactivity of People v. Miller
¶ 47 People v. Miller has been considered time and again by our courts, and in particular the
issue of its applicability on collateral review was addressed in Davis. There, a defendant who
was a juvenile at the time of his offenses was tried in the criminal court and convicted (in
relevant part) of two first degree murders and sentenced to natural life imprisonment. His
direct appeal was decided in 1995 with leave to appeal denied in 1996, and this court
affirmed the dismissal of two postconviction petitions before his section 2-1401(f) petition

-10-
 relying upon People v. Miller. Davis, 388 Ill. App. 3d at 871, 874-76. The Davis defendant
contended that People v. Miller announced a new substantive rule that should be applied
retroactively under the first prong of the Teague rule. However, this court held that Miller
did not create a new substantive rule prohibiting the imposition of a natural life sentence
either for all juveniles or for all juveniles convicted on an accountability basis, but instead
held that a natural life sentence was unconstitutionally disproportionate as applied to the
Miller defendant. Id. at 879-82. This court therefore did not apply Miller to defendant’s
sentence challenge. Id. at 882.

¶ 48 Retroactivity of Miller v. Alabama
¶ 49 The Second Division of this court recently addressed the retroactivity of Miller on
collateral review. People v. Williams, 2012 IL App (1st) 111145. The Williams defendant
was, in relevant part, convicted of two counts of first degree murder and sentenced to natural
life imprisonment, a judgment affirmed on direct appeal in 1999. People v. Williams, 305 Ill.
App. 3d 517 (1999). He sought leave to file his fourth postconviction petition in 2011,
relying upon Graham, and on appeal from the denial of leave he cited Miller. The Williams
court found that Miller does not render the mandatory life imprisonment statute void or
unconstitutional on its face as it does not affect the statute’s application to adult perpetrators.
However, the Williams court also found that Miller states a watershed rule of criminal
procedure rendering it retroactive under Teague. The case was therefore remanded for, in
relevant part, a new sentencing hearing.
¶ 50 From the published federal and state cases citing Miller v. Alabama, most of which
address Miller on direct appeal, two other states–Florida and Michigan–have directly
addressed the retroactivity of Miller on collateral review.
¶ 51 In Geter v. State, No. 3D12-1736, 2012 WL 4448860 (Fla. Ct. App. 3d Dist. Sept. 27,
2012), a 17-year-old offender convicted of first degree murder and sentenced to life
imprisonment in 2003, with his conviction affirmed on direct appeal in 2004 and with three
postconviction petitions denied in 2005, 2009, and 2012, filed a fourth post-conviction
petition challenging his sentence pursuant to Miller. Similar to Illinois law, Florida provides
that a change of case law will not be applied on postconviction review “ ‘in the absence of
fundamental and constitutional law changes which cast serious doubt on the veracity or
integrity of the original trial proceeding.’ ” Geter, 2012 WL 44488602, at *2 (quoting Witt
v. State, 387 So. 2d 922, 929 (Fla. 1980)). Florida law contrasts changes that “ ‘place beyond
the authority of the state the power to regulate certain conduct or impose certain penalties’ ”
and “ ‘those changes of law which are of sufficient magnitude to necessitate retroactive
application’ ”; that is, fundamentally revolutionary cases, with, on the other hand, merely
evolutionary cases affording new or different standards for the admissibility of evidence,
procedural fairness, proportionality review of capital cases, and the like. Geter, 2012 WL
4448860, at *2 (quoting Witt, 387 So. 2d at 929).
¶ 52 The Geter court held that Miller is not such a fundamental or revolutionary case that it
should be applied retroactively. The court held that Miller does not affect the determination
of guilt or innocence and does not cast doubt on the integrity of the original trial proceeding.

-11-
 The court noted that Miller does not forbid a sentence of life imprisonment without parole
for minors but merely requires consideration of youth-related mitigating factors, in contrast
to Graham, which categorically prohibited natural life imprisonment of minors for
nonhomicide offenses. The Geter court acknowledged that another panel of the Florida
appellate court had followed Graham to remand for resentencing in a collateral-review case
(Kleppinger v. State, 81 So. 3d 547 (Fla. Ct. App. 2012)) but distinguished that decision from
the case before it because Graham imposed a substantive prohibition of life-without-parole
upon minors for nonhomicide offenses while Miller mandated a procedure for imposing such
a sentence and expressly allowed for the possibility of such a sentence for a minor convicted
of homicide. See also Gonzalez v. State, No. 1D12-3153, 2012 WL 5233454 (Fla. Ct. App.
1st Dist. Oct. 24, 2012) (following Geter).
¶ 53 The Michigan Court of Appeals has decided that, under a Teague analysis, Miller does
not apply retroactively. People v. Carp, No. 307758, 2012 WL 5846553 (Mich. App. Nov.
15, 2012). The Carp court found that Miller states a new rule, because its result was not
dictated by existing precedent, and that Miller does not fall under one of the two exceptions
rendering a new rule retroactive. The Carp court found that the Miller rule is procedural
rather than substantive because it does not prohibit sentences of natural life without parole
for minors. The Carp court also found that Miller does not create a watershed rule of
criminal procedure as the Miller rule is neither necessary to prevent an impermissibly large
risk of an inaccurate conviction nor does it alter one’s understanding of the bedrock
procedural elements essential to the fairness of criminal proceedings.
¶ 54 The Iowa Court of Appeals has granted remands for resentencing based on Miller in two
cases of first degree murder committed by 17-year-olds and punished by life imprisonment
without parole where the direct appeal process was exhausted in 1987 and 2000, respectively.
State v. Lockheart, No. 10-1815, 2012 WL 2814378 (Iowa Ct. App. July 11, 2012); State v.
Bennett, No. 11-0061, 2012 WL 2816806 (Iowa Ct. App. July 11, 2012). However, in both
cases the defendant filed a motion for correction of an illegal sentence, which Iowa law
allows to be filed at any time; the Iowa Supreme Court has ruled that such motions
encompass claims of cruel and unusual punishment. Veal v. State, 779 N.W.2d 63 (Iowa
2010). Therefore, the retroactivity of Miller was, and presumably is, not an issue under Iowa
law. Similarly, the Louisiana Supreme Court has granted a remand for resentencing based
on Miller from a 2011 motion to correct an illegal sentence imposed in 1995. State v.
Simmons, 2012-1810 (La. 10/12/12); 99 So. 3d 28.

¶ 55 CONCLUSION
¶ 56 We conclude that, pursuant to Teague, Miller v. Alabama is applicable retroactively on
collateral review. Miller creates a new rule of law that was not required by either the
precedents on what penalties a minor constitutionally cannot receive (Roper and Graham)
or by the cases cited in Miller requiring sentencing discretion for the death penalty. See, e.g.,
Loggins v. Thomas, 654 F.3d 1204, 1222 (11th Cir. 2011) (“the Supreme Court did not imply
in Roper or in Graham that a life without parole sentence is impermissible for a juvenile who
commits a homicide”). However, we find that Miller constitutes a new substantive rule.

-12-
 While it does not forbid a sentence of life imprisonment without parole for a minor, it does
require Illinois courts to hold a sentencing hearing for every minor convicted of first degree
murder at which a sentence other than natural life imprisonment must be available for
consideration. Miller mandates a sentencing range broader than that provided by statute for
minors convicted of first degree murder who could otherwise receive only natural life
imprisonment. We therefore respectfully disagree with the Florida courts in Geter and
Gonzalez and the Michigan court in Carp.
¶ 57 Our decision is reinforced by the fact that one of the two Miller defendants was before
the United States Supreme Court on collateral review following completion of his direct
appeal and received relief in the same manner as Miller himself. While this court
independently conducts a Teague analysis pursuant to Illinois law, the relief granted to
Jackson in Miller tends to indicate that Miller should apply retroactively on collateral review.
¶ 58 We acknowledge that this court held in Davis that People v. Miller is not retroactive
because it does not prohibit a sentence of natural life imprisonment for minors. However, we
consider Davis inapposite because People v. Miller is distinguishable in a key manner from
Miller v. Alabama. Relief pursuant to People v. Miller is a matter of the trial court’s
discretion, so that a defendant shall be sentenced pursuant to the statute to natural life
imprisonment unless he makes a case that such a sentence would be cruel and unusual as
applied to him under his particular circumstances. By contrast, Miller v. Alabama requires
in every case with a minor defendant, by right and as a matter of course, a full sentencing
hearing with a range of sentences available to the court. In other words, arguments in
mitigation face an uphill battle under People v. Miller but are on a level playing field
pursuant to Miller v. Alabama. The substantive change effected by Miller v. Alabama is
sufficiently categorical (to use defendant’s word) to distinguish it from People v. Miller for
purposes of our retroactivity analysis.
¶ 59 Pursuant to Miller v. Alabama, defendant is entitled to a new sentencing hearing where
natural life imprisonment is not the only available sentence. Under our statutes now and at
the time of defendant’s offenses, the circuit court may sentence a defendant convicted of first
degree murder committed as a minor to a prison term of 20 to 60 years, up to 100 years
where an appropriate extended-term finding has been made, or to natural life imprisonment.
720 ILCS 5/9-1(b) (West 2010); 730 ILCS 5/5-4.5-20(a) (West 2010).
¶ 60 Accordingly, we reverse the order of the circuit court denying vacatur of defendant’s
sentence, vacate said sentence, and remand for a sentencing hearing consistent with this
decision.

¶ 61 Vacated and remanded with directions.

¶ 62 JUSTICE STERBA, specially concurring.
¶ 63 Although I concur in the result, I write separately because I do not believe a Teague
analysis is necessary. The Teague Court addressed the issue of the retroactivity of a new
constitutional rule of criminal procedure. Teague, 489 U.S. at 299. The Court formally
adopted the rule that new rules of criminal procedure do not generally apply retroactively to

-13-
 cases on collateral review, and can only be applied retroactively if they meet one of two
exceptions. Id. at 305-06, 310. Although the first exception appears to describe a new
substantive rule as opposed to a procedural rule, the Teague Court did not specifically
address the retroactivity of new substantive rules or the distinction between the two types of
rules.
¶ 64 In Schriro, the Court noted the distinction between new substantive rules and new
procedural rules, and explicitly stated that substantive rules generally apply retroactively on
collateral review. Schriro, 542 U.S. at 351. The Court explained that because such rules
“necessarily carry a significant risk that a defendant *** faces a punishment that the law
cannot impose upon him,” they should be retroactively applied. (Internal quotation marks
omitted.) Id. at 352. The Court further observed that, while it has sometimes referred to rules
of this type as falling under one of the exceptions to Teague’s bar on retroactivity, “they are
more accurately characterized as substantive rules not subject to the bar.” (Emphasis added.)
Id. at n.4.
¶ 65 As the majority notes, the states of Florida and Michigan have considered the
retroactivity of Miller on collateral review. Supra ¶¶ 50-53 (citing Geter v. State, No. 3D12-
1736, 2012 WL 4448860 (Fla. Ct. App. Sept. 27, 2012), and People v. Carp, No. 307758,
2012 WL 5846553 (Mich. App. Nov. 15, 2012)). In declining to apply Miller retroactively,
the Geter and Carp courts both concluded that Miller announced a new procedural rule
because the Court did not forbid a sentence of life imprisonment for juveniles. Supra ¶¶ 52-
53. However, neither court appears to have fully appreciated the distinction that the Miller
rule forbids a mandatory sentence of life imprisonment for juveniles. See supra ¶ 37 (quoting
Miller, 567 U.S. at ___, 132 S. Ct. at 2475). I also recognize that another division of this
court very recently addressed the retroactivity of Miller on collateral review. Supra ¶ 49
(citing Williams, 2012 IL App (1st) 111145). The Williams court determined that Miller “not
only changed procedures, but also made a substantial change in the law.” Williams, 2012 IL
App (1st) 111145, ¶ 51. The Williams court then held that Miller announced a “watershed
rule[ ] of criminal procedure.” (Internal quotation marks omitted.) Id. (quoting People v.
Sanders, 238 Ill. 2d 391, 401 (2010)). Because of the distinction made by the Schriro Court
between substantive and procedural rules as noted above, I do not believe the Williams court
needed to reach the issue of whether the Miller rule constituted a watershed rule of criminal
procedure.
¶ 66 In agreeing with the majority that the new rule announced in Miller is substantive rather
than procedural (supra ¶ 56), I find Sumner v. Shuman, 483 U.S. 66 (1987), instructive.
Decided prior to Teague, the Sumner decision does not make a distinction between
substantive and procedural rules. However, the Sumner Court determined that a statute that
mandated the imposition of the death penalty on a life-term inmate who has been convicted
of murder was unconstitutional. Id. at 77-78. The Court noted that the statute impermissibly
created the risk that the death penalty would be imposed in spite of the fact that mitigating
factors potentially exist that would call for a less severe penalty. Id. at 82. The defendant in
Sumner to whom the new rule was applied was before the court on collateral review. Id. at
68. Although not characterized by the Sumner Court as such, the clear implication of the
Sumner decision is that a new rule that does not prohibit a certain sentence in every case but

-14-
 prohibits the mandatory imposition of that sentence is a substantive rule rather than a
procedural rule. Moreover, because the Supreme Court has likened a sentence of life without
the possibility of parole to the death penalty (see Graham, 560 U.S. at ___, 130 S. Ct. at
2027), the Sumner rule is analogous to the rule announced in Miller.
¶ 67 The Teague Court observed that whether a new rule should be given prospective or
retroactive effect should be addressed at the time of the decision announcing the new rule.
Teague, 489 U.S. at 300. The Court further noted that “once a new rule is applied to the
defendant in the case announcing the rule, evenhanded justice requires that it be applied
retroactively to all who are similarly situated.” Id. In applying the new rule to Jackson, a
defendant whose case was before the Court on collateral review, the Miller Court made it
clear that the new rule was to be applied retroactively on collateral review.
¶ 68 Because the Miller Court applied the rule to both defendants before the Court, including
the defendant whose case was before it on collateral review (supra ¶ 57), it is clear that
justice requires that the Miller rule be applied to defendant in the case sub judice. Moreover,
as previously noted, I agree with the majority’s conclusion that the new rule announced in
Miller is a substantive rule (supra ¶ 56). Therefore, in light of the Schriro Court’s statement
that substantive rules are not subject to the Teague bar and the Miller Court’s application of
the new rule to a defendant whose case was before it on collateral review, I concur in the
result but would hold that a Teague analysis is not needed.

-15-