People v. Coty

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Appellate Court Date: 2018.10.23
08:14:40 -05'00'

People v. Coty, 2018 IL App (1st) 162383

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

District & No. First District, Third Division
Docket No. 1-16-2383

Filed August 8, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 04-CR-30062; the
Review Hon. Nicholas Ford, Judge, presiding.

Judgment Sentence vacated.
Reversed and remanded with instructions.

Counsel on Michael J. Pelletier, Patricia Mysza, and Daniel T. Mallon, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.

Lisa Madigan, Attorney General, and Kimberly M. Foxx, State’s
Attorney, both of Chicago (Gopi Kashyap, Assistant Attorney
General, and Alan J. Spellberg and Mary L. Boland, Assistant State’s
Attorneys, of counsel), for the People.

Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion.
Justices Howse and Lavin concurred in the judgment and opinion.
 OPINION

¶1 After a jury trial, the defendant, William Coty, who is intellectually disabled, 1 was
convicted, inter alia, of predatory criminal sexual assault of a minor. Because the defendant
had a prior conviction for aggravated criminal sexual assault, pursuant to section 12-14.1(b)(2)
of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14.1(b)(2) (West 2004)),2 the
trial court had no discretion but to sentence him to mandatory natural life in prison without the
possibility of parole. After his conviction and sentence were affirmed on appeal (see People v.
Coty, 388 Ill. App. 3d 1136 (2009) (table) (unpublished order under to Supreme Court Rule 23)
(hereinafter Coty I)), the defendant filed a petition for relief from judgment pursuant to section
2-1401 of the Code of Civil Procedure (Civil Procedure Code) (735 ILCS 5/2-1401 (West
2004)), alleging, inter alia, that his mandatory natural life sentence was (1) facially
unconstitutional under the eighth amendment of the United States Constitution (U.S. Const.,
amend. VIII) and (2) unconstitutional as applied to him under the Illinois proportionate
penalties clause (Ill. Const. 1970, art. I, § 11) due to his intellectual disability. After the trial
court sua sponte dismissed the defendant’s petition, the defendant appealed to this court.
¶2 On appeal, we affirmed in part and reversed in part, holding that, while the defendant had
failed to establish that his mandatory natural life sentence was facially unconstitutional under
the eighth amendment, that same sentence was unconstitutional as applied to him under the
proportionate penalties clause. See People v. Coty, 2014 IL App (1st) 121799-U, ¶¶ 60-75
(hereinafter Coty II). We therefore vacated the defendant’s sentence and remanded the cause to
the trial court for resentencing. Id. ¶ 77.
¶3 On remand, the defendant, who was then 52 years old, was resentenced to 50 years’
imprisonment. The defendant now appeals from that sentence contending that the trial court
abused its discretion when it imposed an extended term sentence that was the equivalent of a
natural life sentence. In the alternative, the defendant contends that his 50-year de facto life
sentence is unconstitutional under both the federal and state constitutions, as applied to him, an
intellectually disabled person. For the reasons that follow, we vacate the defendant’s sentence
and reverse and remand for a new sentencing hearing, with instructions.

¶4 I. BACKGROUND
¶5 Because we have already articulated the facts of this case in our prior two orders, we set
forth only the facts and procedural history that are relevant to the resolution of this appeal.

¶6 A. Fitness Hearing
¶7 The defendant was arrested and charged on November 21, 2004. Prior to trial, the court
held a fitness hearing to determine whether the defendant was fit to stand trial. At that hearing,
the State called Dr. Debra Ferguson, a forensic clinical services psychologist from the forensic

1
We acknowledge that the term “mentally retarded” was used in the initial appeal in this case, as
that was the term used during the trial proceedings and in all relevant case law. However, because that
term is no longer the preferred nomenclature, for purposes of this appeal we will use “intellectually
disabled.”
2
We note that section 12-14.1(b)(2) was recodified as section 11-1.40(b)(2) (see 720 ILCS
5/11-1.40(b)(2) (West 2010)) and became effective July 1, 2011.

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 clinical services office of the circuit court. Dr. Ferguson testified that the defendant “had a very
basic knowledge of most legal proceedings” and that the things “he was not familiar with, he
was able to understand with an explanation and to retain and *** repeat it.” According to Dr.
Ferguson, for example, the defendant understood that a judge was the person who “sentences
you,” that he was the defendant in the case, and that the jury was “some crazy people that sit up
in some room. They say what they say. They can’t judge me.” The defendant understood that
jurors “talk about the case in a room and give a paper that read[s] guilty or not guilty.” Dr.
Ferguson acknowledged that the defendant did not know the role of the prosecutor but averred
that, after she explained it, the defendant acknowledged that the prosecutor was not “on [his]
side.” Dr. Ferguson further opined that the defendant was aware of his charges, the allegations
against him, and the possible penalties (which he described to her as, “I know I can get 6 to
30[.] I know that.”). Dr. Ferguson further acknowledged that the defendant initially did not
understand that he could choose whether to proceed with a bench or jury trial but instead
believed that this was a decision reserved to the trial judge. Nonetheless, she averred that, after
she explained, the defendant understood that it was his option. Dr. Ferguson opined that based
on her examination the defendant was fit to stand trial.
¶8 On cross-examination, Dr. Ferguson was asked whether she was aware that the defendant
was receiving Social Security disability based on his intellectual disability. 3 She
acknowledged that she was aware of this fact but was unable to confirm the intellectual
disability for which the defendant was receiving disability checks. She admitted that her office
had requested this information from the Social Security office but then “gave up waiting for it
and filed [the] report” attesting to the defendant’s fitness.
¶9 On cross-examination, Dr. Ferguson further admitted that she did not perform any
standardized tests to evaluate the defendant’s intellectual disability but acknowledged that it
was her understanding that his full scale IQ score was 65.
¶ 10 On redirect examination, Dr. Ferguson admitted that it was her opinion that the defendant
was in fact mildly intellectually disabled4 but testified that a diagnosis of intellectual disability
does not “tell *** anything about whether an individual is fit or unfit” to stand trial.
¶ 11 In opposition, the defendant called Dr. Sandra Dawkins, who was qualified as an expert in
clinical psychology. Dr. Dawkins testified that the defendant’s full scale IQ was 55, which
placed him in the “extremely low” range of intelligence when compared to normal adults, so as
to make him unfit to stand trial. Dr. Dawkins explained that in coming to her conclusion she,
inter alia, (1) interviewed the defendant on two occasions; (2) reviewed numerous documents,
including his entire forensic clinical services record, court records, and police records; and
(3) administered four scientifically recognized standardized tests to evaluate his cognitive
ability,5 his adaptive behavior,6 his competency to understand Miranda warnings,7 and his
competency to stand trial as an intellectually disabled person. 8 Among other things, Dr.
Dawkins opined that under the Social Security disability standards an individual is eligible for
3
The term used was “mental retardation.”
4
Again the term “mentally retarded” was used.
5
The Wechsler Adult Intelligence Scale (WAIS-III) (otherwise known as an IQ test)
6
The Adaptive Behavior Assessment System-II (ABAS-II)
7
The Assessing Understanding and Appreciation of Miranda Rights test
8
The Competency Assessment to Stand Trial for the Mentally Retarded (CAST-MR)

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 intellectual disability benefits with an IQ score of 59 or under. She stated that the results of the
IQ test she administered on the defendant were consistent with the defendant receiving Social
Security benefits. She pointed out that the defendant received a verbal score of 55, a
performance score of 64, and a full scale IQ score of 55, which placed him in the “one percent
of the population who retain IQ scores at that level.”
¶ 12 Dr. Dawkins also testified regarding her interviews with the defendant and stated that the
defendant’s concentration level was variable, that he had a very short attention span, and that
he had difficulty explaining similarities. In addition, while he knew where he was and what the
date was, he could provide neither the day of the week nor the approximate time of day. When
asked how he knew the date, he stated, “It is my court date. That is what I have been told.”
¶ 13 Dr. Dawkins further averred that, throughout the interviews, the defendant’s responses
were very inconsistent. She explained that there were elements of his statements that would
imply he had an understanding of the court system, but when any one particular concept was
explored further it became apparent that the defendant did not, in fact, understand it. She stated
that once she explained certain concepts to him, he would easily acquiesce to the point, accept
her explanation, and regurgitate it. She explained that this allowed him to feel calmer and not
worry. According to Dr. Dawkins, the defendant does “not accept that he is as cognitively
limited as he is, so he projects an image that he knows more than what he actually knows.” In
that respect, he has acquired a lot of “street jargon” and “tries to portray himself as being more
knowledgeable about the world around him than he actually is.”
¶ 14 In addition, Dr. Dawkins testified that she interviewed the defendant’s sister and uncle as
part of the adaptive behavior test. She opined that the results of that test showed that the
defendant would have “a very, very difficult time functioning in society independently,” and
would require “support in the work world, at home, [and] caring for his personal decision
making.” She stated that the defendant “acts without considering the consequences of his
actions” and is therefore “easily exploited,” both because of his “low mental ability” and desire
to “fit in.”9
¶ 15 After hearing the evidence and arguments by both parties, the trial court found that,
although it was undisputed that the defendant was intellectually disabled, 10 he was
nevertheless fit to stand trial.
¶ 16 B. Motion to Suppress Confession
¶ 17 Prior to trial, the parties also litigated the defendant’s motion to suppress inculpatory
statements he had made to police. At a hearing on that motion, the following evidence was
presented regarding the defendant’s cognitive abilities. The State again called expert forensic
psychologist Dr. Ferguson, who was now tasked with determining whether the defendant was
capable of understanding his Miranda rights. Dr. Ferguson averred that, in order to assess this

9
Dr. Dawkins’s report, which is part of the record on appeal, further notes that when she
interviewed the defendant she was struck by the fact that although he was 41 years old, he was very
small (approximately 5’5” in height at 120 lbs) and had a “childlike demeanor,” so much so that he
could be mistaken for a child, until one looked at his face. Dr. Dawkins’s report further notes that
throughout her interaction with the defendant, he exhibited noticeable shaking. When asked why he
was shaking, the defendant stated that he “always had and that [this] was why his nickname was
‘Shakey.’ ”
10
The trial court used the term “mentally retarded.”

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 ability, she performed only one part of the four-part “Grisso scales” test on the defendant,
specifically, the function of rights in interrogation part. 11 According to Dr. Ferguson, the
defendant successfully applied the Miranda warnings he had received to a hypothetical
situation and therefore passed this portion of the “Grisso scales” test. Dr. Ferguson also
averred that, during her interview with the defendant, the defendant exhibited an
understanding of his Miranda rights. In particular, Dr. Ferguson explained that the defendant
had acknowledged to her that the police read him his Miranda rights. When asked to explain
what those rights entailed, the defendant told Dr. Ferguson, “yeah I know they [sic] supposed
to read you your rights *** I’m slow but I ain’t that slow. They have to read you your rights.
They can’t just lock you up like that without reading you your rights.”
¶ 18 In opposition to the State’s testimony, the defendant called his own expert, Dr. Michael
Fields. Unlike Dr. Ferguson, Dr. Fields testified that to determine the defendant’s ability to
understand Miranda, he administered the full Grisso scales test. Dr. Fields testified that the
defendant scored poorly on all four parts of that test. In addition, he stated that during his
interview with the defendant, the defendant could not name his Miranda rights. Based on the
above, Dr. Fields opined that “there were significant doubts about [the defendant’s] ability to
understand Miranda.” However, when questioned further, Dr. Fields acknowledged that he
could not state with certainty that the defendant was categorically unable to understand those
rights.
¶ 19 The trial court denied the defendant’s motion to suppress his statements to police, noting
that Dr. Ferguson’s interview provided the stronger and better evidence of the defendant’s
capacity to understand Miranda. The court stated that Dr. Fields articulated an equivocal
opinion that lacked certainty, and that his opinion was based more on testing than on a clinical
interview of the defendant.

¶ 20 C. Jury Trial
¶ 21 At trial, the victim K.W. testified that she was six years old in November 2004 and that the
defendant, whom she knew as “Shakey,” lived as a boarder in her grandparents’ house. The
defendant lived in the basement, as did K.W.’s parents and siblings, and K.W. was allowed to
sleep in the basement or upstairs with her grandparents. K.W. testified that on November 18,
2004, she was watching TV alone in the defendant’s room in the basement, while her parents
and cousin were asleep. She stated that she was wearing a T-shirt, skirt, and underwear. K.W.
averred that the defendant came into the room and sat down on the couch with her. He then
started to “scooch” toward her, and every time she moved away, he moved closer until she
could no longer move. K.W. stated that the defendant then touched her arm, her shoulder, and
her leg and then “started messing with me down there.” She identified that part of her body as
the “part that [she] use[s] to go to the bathroom with.” K.W. then explained that the defendant
had “not [touched her] with his hand, but with his tongue” and indicated that she was on the

11
The “Grisso scales” test, otherwise knowing as the Comprehension of Miranda Rights: Manual
for Administration and Scoring, provides four instruments by which mental health professionals may
assess the capacity of individuals to appreciate and understand the significance of their Miranda rights.
These include (1) the comprehension of Miranda rights, (2) the comprehension of Miranda rights
recognition, (3) the comprehension of Miranda vocabulary, and (4) the function of rights in
interrogation.

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 floor when he pushed her underwear to the side of her leg and did so. The defendant then told
K.W., “you won’t tell anyone.” K.W. immediately went and woke her mother and told her that
the defendant had “messed with her down there.”
¶ 22 On cross-examination, K.W. denied telling the police that the defendant touched her
vagina with his hand and insisted that she had told them that he had used his tongue. She
similarly admitted that she did not tell the emergency room physician that the defendant had
used his tongue. When asked to explain why she did not tell the emergency doctor that the
defendant had licked her instead of touched her, K.W. stated that she forgot.
¶ 23 K.W.’s mother, Keafa W., next testified that, on the night in question at about 11 p.m.,
K.W. came into her room and told her “Shakey touched me,” patting her vaginal area to show
where she had been touched. Keafa woke her husband up, and they went upstairs with K.W. to
talk to K.W.’s grandparents. While they were upstairs, Keafa heard the front door close, and
her husband observed the defendant leaving.
¶ 24 On cross-examination, Keafa admitted that K.W. never told her that the defendant licked
her and that she only accused him of “touching her.” Keafa also acknowledged that she did not
call the police until the next afternoon, November 19, 2004, but stated she did not do so
because she was waiting for K.W.’s grandparents to do so.
¶ 25 Pediatric emergency physician Dr. Gail Allen testified that she examined K.W. on
November 21, 2004, and that, during that exam, K.W. pointed at her vagina and told her that
the defendant had “touched her.” Dr. Allen stated that K.W.’s physical examination was
“normal” and that she found no signs of penetration, trauma, or “touching.”
¶ 26 On cross-examination, Dr. Allen acknowledged that K.W. did not tell her that the
defendant had touched her with his tongue. She also admitted that K.W.’s chart from the
emergency room visit revealed that K.W. had told a resident that she was wearing shorts and
not a skirt on the night of the incident.
¶ 27 Chicago police officer Donald Story next testified that at about midnight on November 21,
2004, he and his partner, Officer Elkins, arrested the defendant at his sister’s home. Once in the
police car, Officer Elkins informed the defendant of his Miranda rights and asked him if he
wanted to answer the police officers’ questions. According to Officer Story, the defendant
agreed and asked what the arrest was about. Upon being told of the allegations, the defendant
told the officers that K.W. “came into [his] room, sat on [his] lap, [and] rubbed around a little
bit.”
¶ 28 Assistant State’s Attorney (ASA) Dean Fugate testified that on November 22, 2004, he
spoke to the defendant at Area 1 police station in the presence of two detectives, Mirandized
the defendant and then took down his handwritten statement.12 That statement was published
to the jury. In the statement, the defendant confirmed that he was 40 years old and that, in
November 2004, he rented a room in the basement of 7036 South Aberdeen Avenue in
Chicago, where he shared the basement with K.W. and her family. The defendant stated that on
November 18, 2004, he was changing his clothes in his bedroom with his door open when
K.W. walked into the room. He told K.W. to leave, but she would not. The defendant finished
changing his clothes behind a curtain and then sat on his couch. He averred that K.W. then sat
on his lap and “began grinding her butt on his lap.” The defendant stated that “his penis was
12
Because the defendant was illiterate, ASA Fugate handwrote the statement for the defendant, and
the defendant “signed” each page.

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 hard” but claimed that he and K.W. were both clothed.13 He placed his right hand underneath
K.W.’s clothes, touched her vagina, and “inserted his finger into [K.W.’s] vagina up to the first
joint.” The defendant stated that he did not move his finger inside of K.W.’s vagina and that he
kept it inside only for “one minute.” The defendant averred that K.W. said, “that feels good.”
¶ 29 In his statement, the defendant further added that K.W. pulled her shorts and panties down
to her knees before sitting on his lap. The defendant also stated that after K.W. got off his lap
and pulled her pants up, she left the room and went upstairs with her parents into her
grandparents’ room. The defendant then left the house out of the front door and went to his
sister’s house. He also stated that he “felt bad that he touched the little girl.”
¶ 30 In his statement, the defendant also indicated that he understands and writes English but
that he cannot read.
¶ 31 After the defendant’s statement was read into the record, the State rested. The defense
presented no witnesses, and the parties proceeded with closing arguments. The jury returned a
verdict of guilty.

¶ 32 D. Original Sentencing Hearing
¶ 33 On November 17, 2006, the trial court held a sentencing hearing, wherein the defendant’s
sister, Irma Coty, testified regarding his cognitive disabilities. Irma testified that the defendant
has been intellectually disabled since he was born, does “not understand what is going on,” and
needs psychiatric treatment. The original presentence investigation report (PSI), which was
admitted into the record, revealed that the defendant attended special education classes in the
Chicago public school system up until the eighth grade and that he received Social Security
disability from the State of Illinois because of his mental health. The original PSI noted that the
defendant had undergone a behavioral clinical examination (BCX) as part of his evaluation for
his fitness to stand trial and that the BCX was part of the court record. In addition, the original
PSI revealed that the defendant could not read or write. The original PSI further revealed that
the defendant’s sister Irma “takes care of him, handles his finances and helps him with his
daily routine.”
¶ 34 Despite the aforementioned evidence, based upon the defendant’s prior conviction for
aggravated criminal sexual assault in case No. 88 CR 12137, 14 the court sentenced the
defendant to natural life in prison, pursuant to the mandates of section 12-14.1(b)(2) of the
Criminal Code (720 ILCS 5/12-14.1(b)(2) (West 2004)). In doing so, the trial judge noted that
he would not have sentenced the defendant to natural life but that he was bound by statute to do
so. As the court explained:
“[T]he parties recognize that the court’s hands are tied because of the prior
conviction for aggravated criminal sexual assault, which makes this conviction one for
which he must receive a sentence of life imprisonment without parole. The facts of the
cause certainly warrant a substantial sentence here. It would not be the sentence that the

13
ASA Fugate acknowledged that the defendant initially said that the victim’s pants were on
throughout the incident. ASA Fugate subsequently claimed, however, that while giving the handwritten
statement, the defendant changed his story and averred that the victim removed her pants during the
incident.
14
The defendant committed this crime in 1988 when he was 24 years old. The victim in that case
was nine. The defendant was sentenced to, and served, six years in prison.

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 court is required to give, had I any discretion, but I must follow the law nonetheless.
The legislature has determined a second aggravated criminal sexual assault in one’s
lifetime means what they say it means.”

¶ 35 E. Direct Appeal
¶ 36 The defendant subsequently appealed his conviction, arguing that (1) he was denied his
due process right to notice, (2) the testimony of Dr. Allen was inadmissible hearsay and
violated his right to confrontation, (3) he was denied his right to a fair trial because of improper
prosecutorial comments, and (4) he was denied his right to effective representation of counsel
where counsel failed to object to the prosecutor’s comments and failed to impeached K.W.’s
trial testimony with her prior inconsistent statements. See Coty I, slip order at 1. On March 27,
2009, this court affirmed the defendant’s conviction and sentence. Id. at 25. His petition for
leave to appeal to the Illinois Supreme Court was denied on September 30, 2009. See People v.
Coty, 233 Ill. 2d 571 (2009).

¶ 37 F. Petition for Relief From Judgment
¶ 38 On March 8, 2012, the defendant filed a pro se section 2-1401 petition for relief from
judgment (735 ILCS 5/2-1401 (West 2012)), alleging that his mandatory natural life sentence
was unconstitutional because the trial court was prohibited from considering his individual
characteristics (namely his intellectual disability) and the circumstances of the offense in
ordering that sentence. The defendant acknowledged that his petition was untimely under the
statute (id.) but claimed that his sentence was void and that therefore he could challenge it at
any time. The defendant asked the trial court to vacate his sentence and remand for
resentencing in the 6-to-30-years range. The State did not file any response to the defendant’s
petition.
¶ 39 On May 10, 2012, the trial court sua sponte dismissed the defendant’s petition. In its
written order, the court first held that the petition was untimely because it was filed over five
years after the defendant’s conviction on October 11, 2006, which was contrary to the mandate
of the statute that it be filed within two years after the entry of final judgment. See id. The court
also found that the defendant had failed to establish that the sentencing scheme under which he
was sentenced to life imprisonment was unconstitutional.

¶ 40 G. Appeal and Remand
¶ 41 The defendant appealed the dismissal of his section 2-1401 petition to this court. On
appeal, we affirmed in part, reversed in part, and remanded for further proceedings. See Coty
II, 2014 IL App (1st) 121799-U, ¶ 78. In doing so, we first found that the trial court erred in
sua sponte dismissing the defendant’s petition on the basis of timeliness. Id. ¶¶ 35-42. We then
considered the merits of the defendant’s petition and held that, while the defendant had failed
to properly state a facial challenge to the mandatory sentencing scheme under which he was
sentenced to natural life in prison, that same scheme was unconstitutional as applied to him,
under the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I,
§ 11) because of his intellectual disability and corresponding diminished culpability. Coty II,
2014 IL App (1st) 121799-U, ¶¶ 43-75. In doing so, we recognized that the defendant was
intellectually disabled with an IQ score somewhere between 55 and 65. Id. ¶ 66. As a result,
under our prevailing social norms, his culpability was less than that of a person with normal

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 cognitive capacity. Id. In addition, we held, “it cannot be ignored that the offense [albeit
serious] *** included a single, brief act of penetration that did not result in any physical injury
to the victim.” Id. ¶ 67. We further noted that the encounter was neither orchestrated nor
preplanned but “rather was seemingly impulsive, and the defendant expressed remorse over
what he had done.” Id. Accordingly, we vacated the defendant’s sentence and remanded to the
trial court for resentencing to give the trial court discretion to impose a term of years. Id. ¶ 78.

¶ 42 H. Resentencing
¶ 43 On remand, a new sentencing hearing was held on August 10, 2016. No new evidence was
presented at that hearing regarding the defendant’s circumstances over the decade that had
passed since he was first sentenced. Instead, prior to the hearing, the court noted that the
appellate court had remanded the matter for resentencing, “indicating that Judge Toomin had
observed during the course of the original trial that [the defendant] suffered from an
intellectual disability.” At the hearing, the court stated it had been “tendered a large volume of
materials,” which included “the transcript of the original trial, and the sentencing that
occurred, incorporating the testimony of a doctor who testified regarding [the defendant’s]
intellectual difficulties or disabilities. I am taking all that into account.” After questions from
defense counsel, the court also acknowledged that it had reviewed the expert opinion given at
the defendant’s motion to suppress hearing, as well as the new PSI.15
¶ 44 The parties then proceeded with very brief arguments. In aggravation, the State, inter alia,
argued that the victim’s mother was “very troubled by the fact that the defendant had to be
resentenced” and wanted “her feelings” represented to the court. The State further argued the
offense was serious and that the defendant knew what he was doing when he approached the
victim. The State therefore asked for “a significant number of years.”
¶ 45 In mitigation, defense counsel argued that, in remanding for resentencing, this court had
already found that the crime was a single contact lasting less than a minute and was impulsive
rather than preplanned or orchestrated. Additionally, the defendant had expressed remorse
over what he had done. Defense counsel further argued that it was undisputed that the
defendant was intellectually disabled and therefore less culpable. Accordingly, defense
counsel asked that the court give the defendant “a term of years that allows him upon sufficient
punishment to resume some sort of life following incarceration.”
¶ 46 After hearing arguments, the trial court sentenced the defendant to 50 years in prison to be
served at 85%, followed by 3 years to life of mandatory supervised release (MSR). In entering
this sentence, the court stated:
“William, I’m going to consider today the evidence presented at trial, the [new]
pre-sentence report, the evidence offered in aggravation, mitigation, the statutory
factors in aggravation, mitigation, the financial impact of incarceration, the arguments

15
We note that the record contains two new PSI reports, one dated December 18, 2014, and the
other dated March 21, 2016. These two PSI reports are almost identical and make no reference to the
defendant’s intellectual disability or his behavior/actions in the last 10 years of incarceration. With
respect to the defendant’s psychological health history, both new PSIs merely report that the defendant
states that he has never been treated by a mental health professional. In addition, under the rubric
“Attitudes/Values,” the new PSIs simply state that “[t]he defendant’s criminal background indicates an
anti-social personality” and that “[h]is previous behavior reflects a lack of social conformity.”

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 the attorneys just made here moments [a]go, and the assertions relative to the mother of
the victim indicating that she still takes this case seriously, this was a serious case, and
this was an offense committed by somebody whom this was not the first.”
¶ 47 Defense counsel subsequently filed a motion to reconsider, arguing, inter alia, that (1) the
sentence was excessive in light of the defendant’s background and the nature of the offense,
citing the proportionate penalties clause, (2) the court improperly considered in aggravation
matters that were implicit in the offense, and (3) the State failed to prove eligibility for an
enhanced penalty or extended term. The trial court denied this motion, and the defendant now
appeals.

¶ 48 II. ANALYSIS
¶ 49 On appeal, the defendant makes three arguments regarding his sentence. First, he asserts
that the trial court abused its discretion in sentencing him to a 50-year extended term sentence,
without properly considering that it was, in fact, imposing a de facto life sentence on a
defendant with intellectual disabilities. Second, the defendant contends that the imposition of
this de facto life sentence is unconstitutional as applied to him both under the eighth
amendment and the proportionate penalties clause. For the reasons that follow, we agree with
the latter contention.

¶ 50 A. Abuse of Discretion
¶ 51 At the outset we acknowledge our supreme court’s mandate that we consider
nonconstitutional arguments before considering constitutional ones (In re E.H., 224 Ill. 2d
172, 178 (2006)). Accordingly, we must first consider whether the trial court abused its
discretion in sentencing the defendant to 50 years’ imprisonment in light of our prior mandate.
A reviewing court will find an abuse of discretion only where the sentencing decision is
fanciful, unreasonable, or arbitrary and no reasonable person would take the view adopted by
the trial court. People v. Abrams, 2015 IL App (1st) 133746, ¶ 32.
¶ 52 Our decision to resentence the defendant was filed on August 28, 2014. There, presented
with a mandatory natural life sentence, we held that resentencing was necessary under the
proportionate penalties clause because the statutory scheme precluded the sentencing court
from considering the unique characteristics of the intellectually disabled defendant. See Coty
II, 2014 IL App (1st) 121799-U, ¶¶ 61-75. Our analysis, however, did not address whether a
sentencing court must consider whether an intellectually disabled defendant has characteristics
accompanying that disability that reduce his culpability. In addition, based on the law in
existence at the time, our decision did not address whether, under either the state or federal
constitutions, a de facto life sentence or a discretionary life sentence would be unconstitutional
as applied to the intellectually disabled defendant in this case. In fact, our mandate nowhere
directed that the trial court was required to consider the defendant’s intellectual disability and
accompanying characteristics in issuing a sentence. Instead, we only stated, “the defendant,
who is [intellectually disabled], should not have been sentenced to mandatory natural life
imprisonment, without the trial court having had an opportunity to consider his mental
capacity and the facts surrounding the commission of the offense.” (Emphasis added.) Id. ¶ 75.
We therefore remanded “for resentencing before a court that has discretion to impose a
term-of-years sentence.” Id. ¶ 77.

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¶ 53 On remand, the trial court imposed a term of years within the appropriate sentencing
range.16
¶ 54 In doing so, the trial court acknowledged the defendant’s intellectual disability but found
that other factors warranted a 50-year prison term. Although the trial court’s findings in this
respect are, at best, sparse, the trial court explicitly stated it considered the evidence presented
at the defendant’s trial and the parties’ arguments, both of which referenced the defendant’s
disability at the time of his trial in 2006. Since the trial court did no more or less than we
instructed it to do, we find no abuse of discretion. See Abrams, 2015 IL App (1st) 133746,
¶ 33.

¶ 55 B. Constitutional Arguments
¶ 56 That said, however, we are now asked to determine for the first time whether the
defendant’s 50-year prison term constitutes a de facto life sentence imposed in a manner
inconsistent with the eighth amendment and the proportionate penalties clause. As shall be
fully discussed below, we find that the trial court on remand imposed a discretionary de facto
life sentence without a record sufficient to assess the unique factors that can impact the
culpability of the intellectually disabled. We hold that this procedure resulted in constitutional
error. See Ill. Const. 1970, art I, § 11.
¶ 57 The defendant challenges his sentence both under the eighth amendment and the
proportionate penalties clause. As an initial matter, the State argues that the defendant has
forfeited any constitutional arguments by failing to properly preserve them below but then
concedes that our supreme court has urged that “the interests of judicial economy favor
addressing [such] issue[s] on direct appeal rather than requiring defendant to raise [them] in a
separate postconviction petition.” People v. Cregan, 2014 IL 113600, ¶ 18. The defendant
responds that he has properly preserved the proportionate penalties issue by raising it in his
postsentencing motion and urges us to consider his eighth amendment challenge under the
plain error doctrine. While we would reach the same result under both the federal and state
constitutions, because the defendant only raised the proportionate penalties argument in his
motion to reduce his sentence, we will proceed with the merits of that claim alone.
¶ 58 The Illinois Constitution states 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.” Ill. Const. 1970, art I, § 11. “[T]he framers [of the Illinois Constitution] intended
*** to provide a limitation on penalties beyond those afforded by the eighth amendment.”
People v. Gipson, 2015 IL App (1st) 122451, ¶ 69; People v. Harris, 2016 IL App (1st)
141744, ¶ 40. And our supreme court has held that it is inaccurate to state that these two
constitutional provisions are synonymous, although the relationship between them is certainly
unclear. See People v. Clemons, 2012 IL 107821, ¶¶ 36-37, 40 (holding that the proportionate
penalties clause “focuses on the objective of rehabilitation” and places greater limitations on
the legislature’s ability to prescribe harsh sentences than the eighth amendment). But see
People v. Patterson, 2014 IL 115102, ¶ 106. Nevertheless, our supreme court has never shied

16
As a Class X offender the defendant was punishable by a sentencing range between 6 and 30
years. 730 ILCS 5/5-8-1(a)(3) (West 2004). In addition, because the victim was under 18 years of age,
the defendant was further eligible for an extended term sentence up to 60 years’ imprisonment (id.
§ 5-5-3.2(c)).

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 from applying eighth amendment precedent to decide proportionate penalties cases, and we see
no reason why we should not do the same here. See, e.g., People v. Miller, 202 Ill. 2d 328, 339
(2002) (hereinafter Leon Miller); see also Patterson, 2014 IL 115102, ¶ 106.
¶ 59 To succeed on a proportionate penalties claim, the defendant here must show either (1) that
the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense
as to shock the moral sense of the community or (2) that similar offenses are compared and the
conduct that creates a less serious threat to the public health and safety is punished more
harshly. People v. Klepper, 234 Ill. 2d 337, 348-49 (2009); see also Leon Miller, 202 Ill. 2d at
338.
¶ 60 Our supreme court has repeatedly refused to define what kind of punishment qualifies as
cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the
community, because “as our society evolves, so too do our concepts of elemental decency and
fairness which shape the ‘moral sense’ of the community.” Leon Miller, 202 Ill. 2d at 339
(citing Trop v. Dulles, 356 U.S. 86, 101 (1958) (whether a punishment shocks the moral sense
of the community is based upon an “evolving standard[ ] of decency that mark[s] the progress
of a maturing society”)).
¶ 61 Noting that our supreme court has repeatedly held that those “evolving standard[s] of
decency *** mark[ ] the progress of a maturing society,” in Coty II, we reviewed the gravity of
the defendant’s offense in connection with the severity of his sentence within our community’s
evolving standard of decency. (Internal quotation marks omitted.) Coty II, 2014 IL App (1st)
121799-U, ¶ 62.
¶ 62 At the time we decided Coty II, that standard had evolved to prohibit the imposition of the
death penalty on juveniles and intellectually disabled offenders, as well as to condemn the
imposition of mandatory natural life imprisonment on juveniles. See id. ¶ 63 (citing Graham v.
Florida, 560 U.S. 48, 68 (2010), Roper v. Simmons, 543 U.S. 551, 569-70 (2005), Miller v.
Alabama, 567 U.S. 460, 488-89 (2012),17 and Atkins v. Virginia, 536 U.S. 304, 321 (2002)).
Accordingly, in Coty II, we held that the statutory provision under which the defendant had
been sentenced to mandatory natural life imprisonment, without the trial court having any
discretion, was disproportionate as applied to him, so as to shock the moral sense of our
community. Id. ¶¶ 64-69 (citing Leon Miller, 202 Ill. 2d at 339-42).
¶ 63 Since our decision in Coty II, our community’s standards of decency have considerably
evolved, albeit in the context of juvenile defendants and the eighth amendment (U.S. Const.,
amend. VIII). First, in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), the

17
Roper held that the eighth amendment prohibited death penalty sentences for juveniles who
commit murder. Roper, 543 U.S. at 578-79. Graham held that the eighth amendment prohibited
mandatory life sentences for juveniles who commit nonhomicide offenses. Graham, 560 U.S. at 82.
Miller held that the eighth amendment prohibited mandatory life sentences for juveniles who commit
murder. Miller, 567 U.S. at 489-90. All three decisions recognized the following general difference
between juveniles and adults, which render juveniles less morally reprehensible: (1) lack of maturity
and underdeveloped sense of responsibility; (2) vulnerability and susceptibility to negative influences
and outside pressures; and (3) a yet unfully formed character, which makes them more malleable and
their malfeasance less indicative of irretrievable depravity. Graham, 560 U.S. at 68; Roper, 543 U.S. at
569-70. In Miller, the Supreme Court further held that “children are constitutionally different from
adults for purposes of sentencing” and that a trial court must therefore be able to consider mitigating
factors in determining whether to impose a natural life sentence. Miller, 567 U.S. at 471.

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 United States Supreme Court held that state courts must give Miller effect in collateral
proceedings and that, under Miller, life imprisonment without parole is unconstitutional for
juvenile offenders “whose crimes reflect the transient immaturity of youth” “for all but the
rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at ___,
136 S. Ct. at 734.
¶ 64 Next, in People v. Reyes, 2016 IL 119271, ¶ 9, our supreme court interpreted the holding of
Miller to apply to de facto as much as de jure life sentences. Noting that Miller’s “holding
required that life-without-parole sentences be based on judicial discretion rather than statutory
mandates” (id. ¶ 4), our supreme court held:
“A mandatory term-of-years sentence that cannot be served in one lifetime has the
same practical effect on a juvenile defendant’s life as would an actual mandatory
sentence of life without parole—in either situation, the juvenile will die in prison.
Miller makes clear that a juvenile may not be sentenced to a mandatory, unsurvivable
prison term without first considering in mitigation his youth, immaturity, and potential
for rehabilitation.” Id. ¶ 9.
¶ 65 In addition our supreme court held:
“ ‘[T]he teachings of the Roper/Graham/Miller trilogy require sentencing courts to
provide an individualized sentencing hearing to weigh the factors for determining a
juvenile’s “diminished culpability ***” when, as here, the aggregate sentences result in
the functional equivalent of life without parole. To do otherwise would be to ignore the
reality that lengthy aggregate sentences have the effect of mandating that a juvenile
“die in prison even if a judge or jury would have thought that his youth and its attendant
characteristics, along with the nature of his crime, made a lesser sentence *** more
appropriate.” [Citation.] Such a lengthy sentence “ ‘means denial of hope; it means that
good behavior and character improvement are immaterial; it means that whatever the
future might hold in store for the mind and spirit of [the juvenile convict], he will
remain in prison for the rest of his days.’ ” [Citation.] That is exactly the result that
Miller held was unconstitutional. [Citation.]’ ” Id. (quoting Bear Cloud v. State, 2014
WY 113, ¶ 33, 334 P.3d 132 (Wyo. 2014)).
¶ 66 Subsequently, in People v. Holman, 2017 IL 120655, our supreme court interpreted Miller
to apply to discretionary, as much as mandatory, natural life sentences. Id. ¶ 40. The court
there held that “[l]ife sentences, whether mandatory or discretionary, for juvenile defendants
are disproportionate and violate the eighth amendment, unless the trial court considers youth
and its attendant characteristics.” (Emphasis added.) See id. (interpreting Miller, 567 U.S. at
465, and Montgomery, 577 U.S. at__, 136 S. Ct. at 736). Noting that Illinois courts have
always held that age is a complex sentencing factor, our supreme court instructed that, before
imposing either a mandatory or a discretionary natural life sentence on a juvenile, the trial
court must first determine that the juvenile’s conduct showed “irretrievable depravity,
permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation,”
by considering the characteristics specific to juveniles articulated by the Supreme Court in
Miller. Id. ¶ 46.18

18
Those characteristics include, but are not limited to, the following factors: (1) the juvenile
defendant’s chronological age at the time of the offense and any evidence of his particular immaturity,
impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family and

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¶ 67 Aside from our supreme court’s holdings in Holman and Reyes, since our decision in Coty
II numerous panels of our appellate court have explicitly held that discretionary de facto life
sentences for juveniles are unconstitutional under the eighth amendment. See, e.g., People v.
Morris, 2017 IL App (1st) 141117, ¶ 30; People v. Nieto, 2016 IL App (1st) 121604, ¶¶ 42-43,
pet. for leave to appeal pending, No. 120826 (filed July 8, 2016); People v. Smolley, 2018 IL
App (3d) 150577, ¶¶ 21-22; People v. Ortiz, 2016 IL App (1st) 133294, ¶ 24, pet. for leave to
appeal pending, No. 121578 (filed Dec. 30, 2016); People v. Buffer, 2017 IL App (1st)
142931, ¶¶ 62-63, appeal allowed, No. 122327 (Ill. Nov. 22, 2017); People v. Sanders, 2016
IL App (1st) 121732-B, ¶¶ 25-27, pet. for leave to appeal pending, No. 121275 (filed Oct. 12,
2016). But see People v. Perez, 2018 IL App (1st) 153629, ¶¶ 37-38; People v. Hoy, 2017 IL
App (1st) 142596, ¶ 46, pet. for leave to appeal pending, No. 122911 (filed May 9, 2018);
People v. Jackson, 2016 IL App (1st) 143025, ¶¶ 54-58, pet. for leave to appeal pending, No.
121527 (filed Nov. 3, 2016); People v. Evans, 2017 IL App (1st) 143562, ¶¶ 14-18, pet. for
leave to appeal pending, No. 122701 (filed Sept. 19, 2017).
¶ 68 Accordingly, as of today, our community’s standards of decency appear to have evolved to
prohibit the imposition of de jure and de facto mandatory and discretionary life sentences for
juveniles, where procedurally the court fails to consider the attendant characteristics of youth.
See Reyes, 2016 IL 119271, ¶ 9; Holman, 2017 IL 120655, ¶ 46; Buffer, 2017 IL App (1st)
142931, ¶¶ 62-63.
¶ 69 In the midst of significant juvenile jurisprudence, however, one must not forget that such
jurisprudence began with Atkins and the Court’s concern with the intellectually disabled. See
Miller, 567 U.S. at 483-84, 509 (citing Atkins, 536 U.S. at 316, 342). In Coty II, we already
held that under Atkins adults with intellectual disabilities deserve special treatment in a
proportionality analysis (see Coty II, 2014 IL App (1st) 121799-U, ¶¶ 61-75). In doing so, we
only implied that adults with intellectual disabilities should be treated similarly to minors. Id.
We now unequivocally hold that they should.
¶ 70 Intellectually disabled individuals, just like juveniles, are less culpable, where the
deficiencies associated with intellectual disability “diminish their personal culpability.”
Atkins, 536 U.S. at 318. Indeed, “clinical definitions of [intellectual disability] require not only
subaverage intellectual functioning, but also significant limitations in adaptive skills such as
communication, self-care, and self-direction that became manifest before age 18.” Id.; see also
730 ILCS 5/5-1-13 (West 2014) (defining intellectual disability as “sub-average general
intellectual functioning generally originating during the developmental period and associated
with impairment in adaptive behavior reflected in delayed maturation or reduced learning
ability or inadequate social adjustment”). Intellectually disabled persons “frequently know the
difference between right and wrong and are competent to stand trial,” but “by definition[,] they
have diminished capacities to understand and process information, to communicate, to abstract
from mistakes and learn from experience, to engage in logical reasoning, to control impulses,
and to understand others’ reactions.” Atkins, 536 U.S. at 318.

home environment; (3) the juvenile defendant’s degree of participation in the crime and any evidence
of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence,
including his inability to deal with police officers or prosecutors and his incapacity to assist his own
attorneys; and (5) the juvenile defendant’s prospects for rehabilitation. See Miller, 567 U.S. at 477-78.

- 14 -
¶ 71 Additional risks accompanying the unique characteristics of the intellectually disabled are
the possibility that they will unwittingly confess to crimes they did not commit, their lesser
ability to give their counsel meaningful assistance, and the fact that they are “typically poor
witnesses, and their demeanor may create an unwarranted impression of lack of remorse for
their crimes.” Id. at 321. In addition, “there is abundant evidence that they often act on impulse
rather than pursuant to a premeditated plan, and *** are followers rather than leaders.” Id. at
318.
¶ 72 As such, just as “the distinctive attributes of youth diminish the penological justifications
for imposing the harshest sentences on juvenile offenders” (Miller, at 567 U.S. at 472), the
distinctive attributes of the intellectually disabled, who are by their very nature less culpable,
diminish “the interest in seeing that the offender gets his ‘just deserts’ ” (Atkins, 536 U.S. at
319).
¶ 73 Similarly, with respect to deterrence, the same cognitive and behavioral impairments that
make intellectually disabled individuals less morally culpable make it less likely that they can
process the fact that their behavior exposes them to severe punishment. Id. at 320.
¶ 74 Because intellectually disabled offenders are so unlikely to process the possibility of
receiving a sentence equivalent to natural life imprisonment, they are unlikely to control their
conduct based on that information. Id. at 319-20. Simply put, an intellectually disabled
defendant is far less likely than an average adult to understand the permanence of life in prison,
let alone weigh the consequences of such a life against the perceived benefit of criminal
conduct. As such, just as with minors, it is less likely that the possibility of facing such an
extreme sanction will deter an intellectually disabled person from committing a crime. Id.
¶ 75 Accordingly, since we hold today that minors and adults with intellectual disabilities
should be treated similarly in a proportionality analysis, we see no reason why, under our
community’s evolving standards of decency, the prohibition against the imposition of
discretionary de facto life sentences without the procedural safeguards of Miller and its
progeny should not be extended to intellectually disabled persons where the record shows that
the trial court did not take into account those characteristics accompanying an intellectual
disability as articulated in Atkins, so as to show “irretrievable depravity, permanent
incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Holman,
2017 IL 120655, ¶ 46. As Atkins articulated, those attendant characteristics include, but are not
limited to, an intellectually disabled person’s diminished capacity (1) to understand and
process information, (2) to communicate, (3) to abstract from mistakes and learn from
experience, (4) to engage in logical reasoning, (5) to control impulses, and (6) to understand
others’ actions and reactions, so as to be more susceptible to manipulation and pressure. Atkins,
636 U.S. at 318.
¶ 76 In reaching this decision, we acknowledge that thus far our supreme court has declined to
extend the Miller line of cases to adults. See People v. Thompson, 2015 IL 118151, ¶¶ 8-21.
That decision, however, did not involve intellectually disabled defendants. Moreover, we find
that a different determination is warranted here. That is because the Miller line of cases began
with Atkins, and explicitly relied on Atkins’s rationale pertaining to the intellectually disabled,
to expand the law to juvenile defendants. See, e.g., Miller, 567 U.S. at 483-84, 509 (citing
Atkins, 536 U.S. at 316, 342); Roper, 543 U.S. at 560, 563-576 (discussing Atkins, 536 U.S.
304). As such, it is more accurate to state that Miller and its progeny are an extension of Atkins.

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¶ 77 Moreover, since we agree with those decisions that hold that the Illinois proportionate
penalties clause is broader than the eighth amendment (see Clemons, 2012 IL 107821, ¶ 39;
Gipson, 2015 IL App (1st) 122451, ¶¶ 69-70; Harris, 2016 IL App (1st) 141744, ¶ 38) and
requires consideration of the constitutional objective of “restoring an offender to useful
citizenship” (internal quotation marks omitted) (Leon Miller, 202 Ill. 2d at 338), an objective
that is “much broader than defendant’s past conduct in committing the offense” (see Gipson,
2015 IL App (1st) 122451, ¶ 72), we find that the procedural safeguards originating with
Atkins, and created by Miller and its progeny, are applicable to intellectually disabled
defendants under our constitution.
¶ 78 We now turn to the sentencing of this defendant. As already noted above, the defendant
here was convicted of predatory criminal sexual assault (a Class X felony) punishable at the
time of his offense by a sentencing range of 6 to 30 years’ imprisonment. 720 ILCS 5/12-14.1
(West 2004) (recodified as 720 ILCS 5/11-1.40 (West 2012)); 730 ILCS 5/5-8-1(a)(3) (West
2004). The defendant was also eligible for an extended term sentence up to 60 years’
imprisonment because the victim was under 18 years of age (730 ILCS 5/5-5-3.2(c) (West
2004)). Furthermore, under “truth in sentencing” statutes, the defendant was required to serve
at least 85% of this sentence, depending upon his conduct, while serving that sentence. See
People v. Harris, 2012 IL App (1st) 092251, ¶ 24 (noting that the “truth-in-sentencing”
statutes do “not change the sentence actually imposed ***. [Citation.] Rather, [they]
determine[ ] the percentage to be actually served, which in turn depends upon the conduct of
the defendant while serving that sentence.”).
¶ 79 On remand, the trial court below sentenced the 52-year-old defendant to 50 years’
imprisonment. According to the IDOC website, of which we may take judicial notice (see
People v. Sanchez, 404 Ill. App. 3d 15, 17 (2010) (finding that this court can take judicial
notice of the IDOC website); see also Buffer, 2017 IL App (1st) 142931, ¶ 62), with time
served, the defendant’s earliest release (parole) date will be March 26, 2049, at which point he
will be 84 years old. The defendant’s actual discharge date is set for March 27, 2052, at which
point he will be 88. As shall be explained further below, under our prior holdings, and contrary
to the State’s assertion, there can be no doubt that this sentence is equivalent to condemning
the defendant to natural life imprisonment. See Buffer, 2017 IL App (1st) 142931, ¶ 62.
¶ 80 We acknowledge that our supreme court has not yet defined what constitutes a de facto life
sentence, apart from stating that this is a sentence that is “unsurvivable” and “cannot be served
in one lifetime” (Reyes, 2016 IL 119271, ¶¶ 8-9), and that our appellate courts appear to be
split on this issue,19 and disagree as to whether it is even appropriate for a court of review to

19
The following courts have found de facto life sentences: Morris, 2017 IL App (1st) 141117, ¶ 30
(discretionary 100 years); Nieto, 2016 IL App (1st) 121604, ¶¶ 42-43, pet. for leave to appeal pending,
No. 120826 (filed July 8, 2016) (discretionary 78 years); Smolley, 2018 IL App (3d) 150577, ¶¶ 21-22
(discretionary 65 years); Ortiz, 2016 IL App (1st) 133294, ¶ 24, pet. for leave to appeal pending, No.
121578 (filed Dec. 30, 2016) (discretionary 60 years); Buffer, 2017 IL App (1st) 142931, ¶¶ 62-63,
appeal allowed, No. 122327, (Ill. Nov. 22, 2017) (discretionary 50 years); Sanders, 2016 IL App (1st)
121732-B, ¶¶ 25-27, pet. for leave to appeal pending, No. 121275 (filed Oct. 12, 2016) (discretionary
sentence totaling 100 years, or “at least 49 years” with good-conduct credit). Conversely, the following
courts have not found de facto life sentences: Perez, 2018 IL App (1st) 153629, ¶¶ 37-38 (discretionary
53 years); Hoy, 2017 IL App (1st) 142596, ¶ 46, pet. for leave to appeal pending, No. 122911 (filed
May 9, 2018) (discretionary 52 years); Jackson, 2016 IL App (1st) 143025, ¶¶ 54-58, pet. for leave to

- 16 -
 reflect on questions of biology and statistics (see Harris, 2016 IL App (1st) 141744, ¶ 52).
Nonetheless, this exact panel has previously held that a 50-year sentence imposed on a
16-year-old juvenile was a de facto life sentence. Buffer, 2017 IL App (1st) 142931, ¶ 62. In
doing so, we relied on the decision in Sanders, 2016 IL App (1st) 121732-B, wherein the court
looked to the United States Sentencing Commission’s Preliminary Quarterly Data Report, to
determine the average life expectancy of a prisoner and found that a “ ‘person held in a general
prison population has a life expectancy of about 64 years’ ” and that this estimate “ ‘probably
overstate[s] the average life expectancy’ ” for those committed “ ‘to prison for lengthy
terms.’ ” Buffer, 2017 IL App (1st) 142931, ¶ 59 (quoting Sanders, 2016 IL App (1st)
121732-B, ¶ 26). We also noted that Sanders quoted a study that showed that each year in
prison resulted in a two-year decline in life expectancy, resulting from “high levels of violence
and communicable disease, poor diets, and shoddy health care *** behind bars,” and that
subsequent courts have found that this “was not surprising given the harshness of a lifetime
spent in a state penitentiary.” (Internal quotation marks omitted.) Id. (quoting Sanders, 2016 IL
App (1st) 121732-B, ¶ 26); Harris, 2016 IL App (1st) 141744, ¶ 53. We therefore concluded
that a 50-year discretionary sentence imposed on a 16-year-old juvenile, which permitted his
release on parole at the earliest at age 66, which was 2 years over his life expectancy, was the
equivalent of an unconstitutional mandatory natural life sentence. See Buffer, 2017 IL App
(1st) 142931, ¶ 64.
¶ 81 Applying the rationale of Buffer and Sanders to the facts of this case, we are compelled to
conclude that the intellectually disabled defendant, whose average life expectancy is at best
6420 but who will not be released until he is at least 84, has similarly been condemned to spend
the rest of his days in prison. This “unsurvivable” sentence is equivalent to natural life
imprisonment, a sentence which the original sentencing judge, who presided over the trial,
heard all the evidence, and viewed all the witnesses, believed was inappropriate. See Reyes,
2016 IL 119271, ¶¶ 8-9.
¶ 82 Moreover, the record indicates that the trial court was not presented with current evidence
of and, thus, could not have fully considered the attendant characteristics of the defendant’s
intellectual disability.
¶ 83 In Holman, our supreme court held that in determining whether an error occurred in a
defendant’s original sentence, a reviewing court “must look at the cold record to determine if
the trial court considered [the attendant characteristics of youth] at the defendant’s original
sentencing hearing.” Holman, 2017 IL 120655, ¶ 47. As the court explained, “the only
evidence that matters” is the evidence at the “defendant’s original sentencing hearing.” Id.
Here, however, we are not determining whether an error occurred in the defendant’s original

appeal pending, No. 121527 (filed Nov. 3, 2016) (discretionary 50 years); or People v. Applewhite,
2016 IL App (1st) 142330, ¶ 16, pet. for leave to appeal pending, No. 121901 (filed Feb. 10, 2017)
(mandatory 45 years); Evans, 2017 IL App (1st) 143562, ¶¶ 14-18, pet. for leave to appeal pending,
No. 122701 (filed Sept. 19, 2017) (discretionary 90-year total sentence, or 45 years with day-for-day
good-conduct credit).
20
The defendant on appeal urges us to take judicial notice of the Central Intelligence Agency’s
website, which states that the average life expectancy of a male in the United States is 77 years. We
need not do so, however, since we may rely on our prior holdings, which refer to the more specific life
expectancy of the prison population. See Buffer, 2017 IL App (1st) 142931, ¶ 59; Sanders, 2016 IL App
(1st) 121732-B, ¶ 26.

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 sentence, since we have already determined that error did occur. Instead, we are deciding
whether constitutional error occurred on resentencing. Under these circumstances, the “cold
record” before us is the one from the resentencing hearing.
¶ 84 That “cold” record does not establish that the trial court had a proper opportunity to
consider, much less that it did consider, the attendant characteristics of the defendant’s
intellectual disability and determined that the defendant was irretrievably depraved,
permanently incorrigible, or irreparably corrupted beyond any possibility of rehabilitation so
as to require a de facto life sentence. See id. ¶ 46.
¶ 85 In Coty II, we noted that it was undisputed that, at the time of the offense, the defendant
was intellectually disabled with an IQ score somewhere between 55 and 65 and that, as such,
under our prevailing social norms his culpability was less than that of a person with normal
cognitive capacity. Coty II, 2014 IL App (1st) 121799-U, ¶ 66 (citing Atkins, 536 U.S. at 305).
We further found that while we in no way diminished the seriousness of the offense, that
offense included a single, brief act of penetration that did not result in any injury to the victim.
Id. ¶ 67. In addition, we found that the encounter was an isolated event and that it was neither
preplanned nor orchestrated but, rather, seemingly impulsive. Id. We further stated that we
were troubled by the fact that the original sentencing judge, who had the benefit of observing
the defendant throughout trial, had expressed reservations about imposing a life sentence under
these particular circumstances. Id. ¶ 68. We finally noted that, despite the defendant’s
cognitive impairments and the brief and limited, albeit serious, nature of his offense, the
defendant had nonetheless been sentenced to the harshest penalty prescribed by our laws,
which our jurisprudence dictates should be reserved for the most severe offense—murder. Id.
¶ 69 (citing People v. Brown, 2012 IL App (1st) 091940, ¶ 68, and Kennedy v. Louisiana, 554
U.S. 407 438 (2008)).
¶ 86 Although on remand from Coty II, the resentencing court was in possession of the trial
record created in 2006, that record was void of any information about the state of the attributes
of the defendant’s intellectual disability in 2016. The new PSI ordered for purposes of
resentencing contained no reference whatsoever to the defendant’s intellectual disability.
Instead, it noted that the defendant had stated that he had never been treated by a mental health
professional. In this respect, we find very troubling that the public defender did not attempt on
remand to have the defendant reevaluated or to introduce any evidence that would enlighten
the trial court as to whether the defendant had been receiving any special services for his
disability in the last 10 years of his incarceration or whether those services had any effect. As
such, the resentencing court was without an iota of evidence from which to determine whether
the defendant’s cognitive ability, behavior, adaptability, or ability to comprehend the
consequences of his actions had changed for better or worse in the 10 years of his
imprisonment. Therefore, the trial court was without the necessary facts from which to
determine whether the defendant could be restored to useful citizenship or whether he was so
irretrievably depraved and of such danger of recidivism that a natural life sentence was
warranted. Under these circumstances and in the context of our community’s clearly evolving
standards of decency, we are compelled to conclude that the imposition of a 50-year de facto
life sentence on this particular defendant, without the procedural safeguards of Atkins, Miller,
and its progeny, was a penalty so wholly disproportionate that it violated the moral sense of our
community. See Gipson, 2015 IL App (1st) 122451, ¶ 72 (“[T]he proportionate penalties
clause demands consideration of the defendant’s character by sentencing a defendant with the

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 objective of restoring the defendant to useful citizenship, an objective that is much broader
than defendant’s past conduct in committing the offense.”). Accordingly, we find the sentence
unconstitutional under the proportionate penalties clause (Ill. Const. 1970, art. I, § 11).
¶ 87 We therefore vacate the defendant’s sentence and remand for a new sentencing hearing
before a different judge. On remand, we urge the public defender to have the defendant’s
mental health evaluated and to provide the court with as much information as possible as to the
defendant’s behavior and progress, or lack thereof, while in prison. We also instruct the trial
court on remand to give serious consideration to the attendant characteristics of the defendant’s
intellectual disability and the fact that this disability “diminish[es] both [his] culpability and
the need for retribution” particularly in the context of this, a nonhomicide offense. Gipson,
2015 IL App (1st) 122451, ¶ 74; see also Atkins, 536 U.S. at 320. In addition, we remind the
trial court that, should it determine that there is a bona fide doubt of the defendant’s fitness to
be sentenced, it has the discretion to order a new fitness hearing to determine whether the
defendant should continue to be housed in the general prison population or if he needs to be
placed in a mental health facility where he can be treated for his intellectual disability before
any sentence can even be imposed. 725 ILCS 5/104-11 (West 2016). Furthermore, because the
defendant has already spent nearly 15 years in prison and this is the second time we are
vacating his sentence, we instruct the trial court to act with the utmost expediency.

¶ 88 III. CONCLUSION
¶ 89 For all of the aforementioned reasons, we vacate the defendant’s sentence and reverse and
remand for a new sentencing hearing, with instructions.

¶ 90 Sentence vacated.
¶ 91 Reversed and remanded with instructions.

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