People v. Holman

2017 IL 120655

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 120655)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RICHARD HOLMAN, Appellant.

Opinion filed September 21, 2017.

JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and
Burke concurred in the judgment and opinion.

OPINION

¶1 The central issue in this case is whether defendant Richard Holman, who
received a sentence of life without parole for a murder that he committed at age 17,
is entitled to a new sentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460,
132 S. Ct. 2455 (2012). We hold that the defendant’s original sentencing hearing
complied with Miller and affirm the Madison County circuit court’s decision to
deny his motion for leave to file a successive postconviction petition.
¶2 BACKGROUND

¶3 On July 13, 1979, Rodney Sepmeyer returned from work to the rural house near
downstate Maryville where he lived with his 83-year-old grandmother, Esther
Sepmeyer. Inside, Rodney found Esther’s dead body kneeling and slumped forward
over the side of a bed in a bedroom that they shared. She had been shot in the cheek
just below the right eye, and a pool of blood stained the sheets. The house was
ransacked, and a television, a turntable, a radio, and a lawnmower were missing.
Rodney’s .22-caliber rifle also was missing, and the metal cabinet in the bedroom
where he stored the gun was open.

¶4 Rodney summoned his father, Lenard, who lived nearby. Lenard called the
police. A crime scene technician found a spent .22-caliber shell casing at the base
of the bedroom heating stove, as well as the empty rifle box and an empty box of
rounds on the kitchen floor. The technician lifted latent fingerprints from the handle
of a small mirror left on the bedroom floor and from the door of the metal cabinet.
The coroner’s physician later recovered a .22-caliber bullet from Esther’s neck.
According to the physician, Esther was likely knocked unconscious after being
shot, but she may have lived for as long as a half-hour. After the autopsy, the
investigation of Esther’s murder stalled.

¶5 Several weeks later, the defendant and Girvies Davis were arrested and
incarcerated in the St. Clair County jail for an unrelated offense. While there, the
defendant and Davis both made inculpatory statements about their collaboration in
a crime spree through Madison and St. Clair Counties. In his own handwriting,
Davis listed 11 homicides, shootings, and robberies, which included Esther’s
murder. The defendant told police officers about eight homicides, all of which
appeared on Davis’s list, in addition to Esther’s murder. Regarding that offense,
both the defendant and Davis admitted that they took items from her house, but
each accused the other of being the shooter. 1 They were charged by information
with three counts of first degree murder. The police obtained a warrant and

1
The defendant’s statement was reduced to writing several months after it was made by the
police officer who interrogated him. That written statement does not appear in the record, but the
officer testified at trial as to its contents. Davis’s statement was reduced to writing by another police
officer the day it was made. That written statement does appear in the record, as well as in People v.
Davis, 97 Ill. 2d 1, 8-9 (1983).

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 searched Davis’s residence, where they found the radio and the lawnmower. 2 The
State’s fingerprint expert later matched the defendant’s left index fingerprint to the
fingerprints lifted from the mirror and the cabinet.

¶6 The defendant and Davis were tried together. On March 16, 1981, a jury found
the defendant guilty of first degree murder. 3 Because he was five weeks from his
eighteenth birthday at the time of the offense, he was not eligible for the death
penalty. See Ill. Rev. Stat. 1979, ch. 38, ¶ 9-1(b). The multiple-murder sentencing
statute in effect at that time provided that the court “may sentence the defendant to
a term of natural life imprisonment” if any of the aggravating factors in section
9-1(b) of the Criminal Code of 1961 were present. Ill. Rev. Stat. 1979, ch. 38,
¶ 1005-8-1(a)(1). One of those aggravating factors was the prior murders of two or
more persons. Ill. Rev. Stat. 1979, ch. 38, ¶ 9-1(b)(3). The case proceeded to
sentencing.

¶7 The Madison County circuit court’s probation and court services department
prepared a presentence investigation report (PSI). 4 The PSI included the
defendant’s criminal history. At age 14, he was adjudicated delinquent for burglary
and placed on two years’ probation. At age 15, he was adjudicated delinquent for
three counts of criminal damage to property and committed to the Department of
Corrections’ juvenile division. The defendant was paroled and then arrested for
burglary three months later. His parole was revoked, and he was returned to the
Department of Corrections. The defendant was paroled again at age 17. While he
was free, Esther was murdered. The PSI contained the defendant’s statement to the
probation officer about that offense:

“I fenced the stolen stuff but I didn’t commit the home invasion. I wasn’t
present when the murder took place. Girvies Davis made a statement indicating
2
Davis’s statement explained why the police never recovered the television or the rifle.
According to Davis, he and the defendant sold the television at a bar and then “drove halfway across
[the pay bridge] and threw the 22 rifle into the river” on the night of Esther’s murder. The missing
turntable was never mentioned or found.
3
Davis was also found guilty. He received the death penalty, but this court vacated that sentence
and remanded for a new sentencing hearing. Davis, 97 Ill. 2d at 29. Earlier, Davis received the death
penalty for the first degree murder of Charles Biebel. See People v. Davis, 95 Ill. 2d 1 (1983).
Evidence at that trial indicated that the defendant was the “actual triggerman” responsible for
Biebel’s death. Davis, 97 Ill. 2d at 24.
4
The first page of the PSI erroneously stated the defendant’s birth date as August 20, 1960, but
later stated it correctly as August 20, 1961.

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 my name. That gave police enough grounds to question me. I refused to talk
because I didn’t know anything.”

¶8 The PSI stated that the defendant’s father died when the defendant was around
7 years old, and his stepfather died when he was around 16. The defendant
reportedly had “a close, loving relationship” with his mother and six siblings. He
was never married but reportedly had two young children. The defendant was
healthy and suffered from no known physical disabilities. According to the PSI, the
defendant had between seven and nine years of formal education, but he was
“borderline retarded.” The probation officer concluded:

“The defendant expressed no guilt for this offense or remorse for the victim,
who was an 82 year old woman who posed no physical threat to him.

The defendant’s history of senseless criminal acts of mortal violence toward
others and lack of remorse for his victims indicates to this officer that the
defendant has no predilection for rehabilitation.”

¶9 Attached to the PSI were three psychological reports—two from a psychiatrist,
Dr. Syed Raza, and one from a psychologist for the circuit court’s probation
department, Cheryl Prost. Dr. Raza’s initial report described his interview with the
defendant. The defendant offered an alternate version of the events on the date of
Esther’s murder. According to the defendant, he drove Davis’s wife to work, drank
beer at a bar with Davis, took a nap at home, picked up a girl, visited another bar
and a “dice house,” and ended up at home. He woke the next morning and heard
police officers speaking to his mother. The defendant was taken to the St. Clair
County jail, where a detective interrogated him. He asserted that he did not
understand most of the questions, and the detective “seemed mad at him and hit
him.” The defendant then was informed that he was charged with murder. Even
though the defendant attended his own trial, he insisted that he still did not know
who had been murdered or how the crime occurred: “My lawyer won’t tell me
either. They say I am stupid.”

¶ 10 Dr. Raza noted that the defendant mentioned an incident prior to 1977 when he
fell from a two-story building and hit his head. Afterwards, he was seen by a
psychiatrist in Rockford. The defendant did not believe that he had a drinking
problem. He had used marijuana for almost a year before his arrest. Dr. Raza found

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 that the defendant’s attitude was “a mixture of extreme apprehension with a sense
of hopelessness, some depression and maybe a touch of manipulativeness.” The
interview was difficult because the defendant’s eye contact was extremely poor and
his answers were very vague. Dr. Raza detected no “thought disturbance” and
tentatively diagnosed the defendant with “borderline or dull normal intelligence,
acute reactive anxiety and some depression,” pending further evaluation and
testing.

¶ 11 Prost’s report described her interview with and tests of the defendant. The
defendant again mentioned his childhood fall and stated that, since then, he had had
a severe headache “like dynamite ready to explode,” which he treated with aspirin
every day. Contrary to the PSI, Prost reported that the defendant stated that he was
in seventh grade remedial classes before dropping out of school. On an intelligence
test, the defendant scored in the borderline or mildly retarded range. Prost
attributed some of his performance to “neurological impairment.” Other tests
confirmed that and indicated a high probability of organic brain damage. Prost
recommended a neurological evaluation.

¶ 12 After reviewing Prost’s report, Dr. Raza made an addendum to his initial report.
Dr. Raza stated that he had reviewed the medical records of the defendant from the
Warren G. Murray Children’s Home in Centralia, where the defendant lived for
two months in 1976. The records showed that the defendant received a full physical
examination, which revealed no deficits. He was diagnosed as mildly mentally
retarded. According to Dr. Raza, therapists at the home stated that the defendant “is
at times not aware of his surroundings and is easily led into doing ‘bad deeds,’ ”
due to his lack of confidence and high need for approval from more intelligent
peers. Dr. Raza observed that the defendant’s intelligence test results improved
between his time at the children’s home and his interview with Prost: “This
improvement can be explained by growing up in chronological age and maturation
process of his central nervous system.” The defendant’s verbal intelligence
indicated that he does have capacity for making a “socially appropriate judgment.”
Dr. Raza opined, “Taking all these factors into consideration, it is my opinion that I
do not see him as severely handicapped in terms of intellectual ability as to interfere
with his ability to see right from wrong.”

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¶ 13 At the sentencing hearing, the State presented one witness, a former East
St. Louis homicide section police officer. The officer stated that he investigated the
murder of Frank Cash and the attempted murder of John Ostman and that he
testified in the defendant’s trial for those offenses. The officer also stated that he
investigated the murder of John Oertel and that he testified in the defendant’s trial
for that offense. Oertel was killed roughly two months before Esther, while the
defendant was still 17 years old. Cash was killed a month after Esther, after the
defendant had turned 18. The State introduced certified copies of the defendant’s
convictions in both cases. In the former he received concurrent 35- and 25-year
sentences. In the latter he received a 40-year sentence.

¶ 14 Before closing arguments, the defendant’s attorney told the court that the
defendant did not want to offer any mitigating evidence and that the defendant’s
mother did not want to testify on his behalf. Consequently, the defendant’s attorney
conceded, “I have no evidence to present at this time” and declined the trial court’s
invitation to make any additions, corrections, or modifications to the PSI. In
closing, the prosecutor highlighted the defendant’s criminal history and the fact
that he was on parole when Esther was murdered. According to the prosecutor,
Esther was old and feeble and posed no threat to the defendant. The prosecutor
noted that the defendant still denied any involvement in the murder, despite his
fingerprints at the scene. The prosecutor added:

“I believe more than about any other Defendant that I have seen come
through here Mr. Holman deserves to be removed from society for the rest of
his natural life. It’s only an accident of birth that he did not qualify for the death
penalty, having been too young when these offenses were committed to have
qualified. Not being able to seek the death penalty on Mr. Holman, I believe
that we have to seek the next best thing ***. *** I believe that the life sentence
here is necessary to deter others from going out on similar crime sprees ***.”

¶ 15 The defendant’s attorney argued that the question before the court was whether
the court “should assess natural life to this very young man.” The defendant’s
attorney asked the court to consider rehabilitation as a goal and argued that
isolation in the prison system militates against that goal. Finally, the defendant’s
attorney pleaded with the trial court to consider “some other alternative than that
requested by the State and to give this young man an opportunity.”

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¶ 16 The trial court offered the defendant an opportunity to make a statement. The
defendant said:

“Your Honor, [the prosecutor] made the statement that I was convicted of
several—three counts of Murder before. That I have been convicted as of what
they say as accessory of the Murder, of knowing this Murder have taken place.
I was never convicted of no Murder. And that is my statement.”

¶ 17 Then the trial court spoke:

“In this sentence the Court has considered the factors enumerated in the
Criminal Code as factors in Mitigation and factors in Aggravation. The Court
does not find any factors in Mitigation. There are many factors in Aggravation.
The Court has considered the evidence presented at the trial in this cause. The
Court has considered the presentence investigation. The Court has considered
the evidence presented at this hearing today and the arguments of counsel. And
the Court believes that this Defendant cannot be rehabilitated, and that it is
important that society be protected from this Defendant.

It is therefore the sentence of this Court and you are hereby sentenced, Mr.
Holman, to the Department of Corrections for the rest of your natural life.”

¶ 18 The defendant appealed his conviction but did not challenge his sentence. The
appellate court affirmed the conviction. People v. Holman, 115 Ill. App. 3d 60
(1983).

¶ 19 In 2001, the defendant filed two pro se postconviction petitions. Both petitions
were dismissed, and the defendant’s appeals from those rulings were also
dismissed. In 2009, the defendant filed a pro se “petition for relief from void
judgment” under section 2-1401 of the Code of Civil Procedure. See 735 ILCS
5/2-1401 (West 2010). That petition was denied, and the appellate court affirmed.
People v. Holman, 2011 IL App (5th) 090678-U.

¶ 20 In 2010, the defendant filed a pro se petition for leave to file a successive
postconviction petition, the pleading that began the case before us. The defendant
raised several claims; his final claim purported to assert his actual innocence. That
petition was denied. On appeal, the defendant abandoned his earlier claims and
instead argued that his life sentence was unconstitutional under Roper v. Simmons,

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 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and particularly
Miller. The appellate court rejected that argument because the defendant had not
raised it before the trial court. People v. Holman, 2012 IL App (5th) 100587-U,
¶ 18. The appellate court further noted that the defendant’s sentence was not
unconstitutional under Miller because the defendant here was “afforded a
‘sentencing hearing where natural life imprisonment [was] not the only available
sentence.’ ” Id. ¶ 19 (quoting People v. Morfin, 2012 IL App (1st) 103568, ¶ 59).
The defendant appealed.

¶ 21 While the defendant’s petition for leave to appeal was pending before us, we
decided People v. Davis, 2014 IL 115595, which held that Miller announced a new
substantive rule of constitutional law and that rule applied retroactively.
Consequently, we denied the defendant’s petition but vacated the appellate court’s
initial decision in this case and remanded so that court could consider whether, in
light of Davis, a different result was warranted. People v. Holman, No. 115597
(Jan. 28, 2015) (supervisory order).

¶ 22 On remand, the appellate court reached the merits of the defendant’s Miller
claim. 2016 IL App (5th) 100587-B. The appellate court recognized that Miller
and, more recently, Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016),
require trial courts to consider youth and its attendant characteristics before
imposing life sentences on juveniles. 2016 IL App (5th) 100587-B, ¶¶ 35-37.
Because the trial court in this case did so, the defendant’s sentence was
constitutionally permissible. Id. ¶ 46. The appellate court rejected the defendant’s
alternative argument that Miller should be extended to create a categorical ban on
juvenile life sentences. Id. ¶ 52.

¶ 23 This court allowed the defendant’s petition for leave to appeal. Ill. S. Ct. R.
315(a) (eff. Mar. 15, 2016). We also allowed the Children & Family Justice Center
of the Bluhm Legal Clinic at Northwestern University School of Law to file an
amicus curiae brief in support of the defendant. See Ill. S. Ct. R. 345 (eff. Sept. 20,
2010). On the legal issues before us, our review is de novo. People v. Thompson,
2015 IL 118151, ¶ 25.

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¶ 24 ANALYSIS

¶ 25 The Post-Conviction Hearing Act offers a procedural device through which a
criminal defendant may assert that “in the proceedings which resulted in his or her
conviction there was a substantial denial of his or her rights under the Constitution
of the United States or of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1)
(West 2010). Proceedings on a postconviction petition are collateral to proceedings
in a direct appeal and focus on constitutional claims that have not and could not
have been previously adjudicated. See People v. Towns, 182 Ill. 2d 491, 502
(1998). Accordingly, issues that were raised and decided on direct appeal are
barred from consideration by the doctrine of res judicata; issues that could have
been raised, but were not, are forfeited. See People v. Ortiz, 235 Ill. 2d 319, 328
(2009). The Act itself contemplates the filing of a single petition: “Any claim of
substantial denial of constitutional rights not raised in the original or an amended
petition is waived.” 725 ILCS 5/122-3 (West 2010). Because successive petitions
impede the finality of criminal litigation, that statutory bar will be relaxed only
“ ‘when fundamental fairness so requires.’ ” People v. Coleman, 2013 IL 113307,
¶ 81 (quoting People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002)).

¶ 26 Generally, there are two such instances. See People v. Edwards, 2012 IL
111711, ¶ 22. A defendant may raise a due process claim of actual innocence to
prevent a miscarriage of justice (Coleman, 2013 IL 113307, ¶ 83), or a defendant
may raise any other defaulted constitutional claim by satisfying the so-called
“cause-and-prejudice” test (id. ¶ 82). To establish “cause,” the defendant must
show some objective factor external to the defense that impeded his ability to raise
the claim in the initial postconviction proceeding. Pitsonbarger, 205 Ill. 2d at 460.
To establish “prejudice,” the defendant must show the claimed constitutional error
so infected his trial that the resulting conviction violated due process. Id. at 464.
The cause-and-prejudice test has been codified in the Act. See 725 ILCS 5/122-1(f)
(West 2010); People v. Tidwell, 236 Ill. 2d 150, 156 (2010).

¶ 27 Initially, the State contends that the defendant’s Miller claim is
“thrice-forfeited” because he failed to raise an as-applied challenge to his sentence
in his 2010 motion for leave to file a successive postconviction petition, his 2012
pre-remand appellate court briefs, and his 2013 pre-remand petition for leave to
appeal. Relying upon People v. Jones, 213 Ill. 2d 498, 505 (2004), the State asserts

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 that a claim not raised in a postconviction petition cannot be raised for the first time
on appeal. The State insists that the defendant’s as-applied Miller claim must be
presented to the trial court in a motion for leave to file a successive postconviction
petition.

¶ 28 The defendant contends that the State forfeited its forfeiture argument because
that argument was raised for the first time in the State’s response brief before this
court. The defendant’s point is well taken. If the State’s position is that the
defendant should have raised his as-applied Miller claim in a motion for leave to
file a successive postconviction petition, the State should have made that argument
during supplemental briefing on remand when the defendant originally presented
that claim. See People v. Lucas, 231 Ill. 2d 169, 175 (2008) (“The doctrine of
forfeiture applies to the State as well as to the defendant and the State may forfeit an
argument that the defendant forfeited an issue by not properly preserving it for
review.”).

¶ 29 The State’s forfeiture aside, we would still reach the merits of the defendant’s
claim. In Thompson, 2015 IL 118151, ¶¶ 36-37, we explained the difference
between facial and as-applied constitutional claims:

“Although facial and as-applied constitutional challenges are both intended to
address constitutional infirmities, they are not interchangeable. [Citation.] An
as-applied challenge requires a showing that the statute violates the constitution
as it applies to the facts and circumstances of the challenging party. [Citation.]
In contrast, a facial challenge requires a showing that the statute is
unconstitutional under any set of facts, i.e., the specific facts related to the
challenging party are irrelevant. [Citation.]

Because facial and as-applied constitutional challenges are distinct actions,
it is not unreasonable to treat the two types of challenges differently ***. By
definition, an as-applied constitutional challenge is dependent on the particular
circumstances and facts of the individual defendant or petitioner. Therefore, it
is paramount that the record be sufficiently developed in terms of those facts
and circumstances for purposes of appellate review.”

¶ 30 The defendant’s claim in Thompson illustrated that point. The defendant there
maintained that the evolving science on juvenile maturity and brain development

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 highlighted in Miller applied not only to juveniles but also to young adults like
himself between the ages of 18 and 21. Id. ¶ 38. We rejected that claim because the
record contained “nothing about how that science applies to the circumstances of
defendant’s case, the key showing for an as-applied constitutional challenge.” Id.
We stated the trial court was the most appropriate tribunal for such factual
development. Id.

¶ 31 Thompson mentioned Davis, where we held that the statute under which a
juvenile defendant received a mandatory life sentence was not facially
unconstitutional under Miller. Davis, 2014 IL 115595, ¶ 32. We also held that
Miller applied to, and invalidated, that sentence, even though the defendant’s
Miller claim was raised for the first time on appeal. Id. ¶ 43. We excused the
defendant’s failure to raise an as-applied Miller claim sooner because the record
was sufficiently developed to address that type of claim.

¶ 32 Thompson instructs that a defendant must present an as-applied constitutional
challenge to the trial court in order to create a sufficiently developed record. Davis
creates a very narrow exception to that rule for an as-applied Miller claim for which
the record is sufficiently developed for appellate review. Here, in deciding the
defendant’s first petition for leave to appeal, we directed the appellate court to
reconsider its judgment in light of Davis. Like the Miller claim in Davis, the Miller
claim in this case does not require factual development. All of the facts and
circumstances to decide the defendant’s claim—that his sentencing hearing did not
comply with Miller—are already in the record. Consequently, in the interests of
judicial economy (see People v. Bailey, 159 Ill. 2d 498, 506 (1994)), we choose to
address the merits of the defendant’s claim, rather than requiring him to return to
the trial court to file another motion for leave to file another successive
postconviction petition and restart the process of adjudicating his Miller claim. 5

5
The State has brought to our attention the recent Fourth District Appellate Court decision in
People v. Merriweather, 2017 IL App (4th) 150407. Merriweather held that a juvenile defendant
“forfeited his as-applied challenge to his sentence under Miller by raising it for the first time on
appeal” and urged him to raise such a claim in a motion for leave to file a successive postconviction
petition. Id. ¶¶ 18-19. The Fourth District departed from the First District decision in People v.
Nieto, 2016 IL App (1st) 121604. Nieto, referencing an “implicit finding” in Thompson, stated that
“juveniles can raise as-applied Miller challenges for the first time on appeal.” Id. ¶ 39.
Merriweather and Nieto both involved as-applied Miller claims challenging so-called mandatory

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¶ 33 The United States Constitution prohibits “cruel and unusual punishments.” U.S.
Const., amend. VIII. Inherent in that prohibition is the concept of proportionality.
See Graham, 560 U.S. at 59. Criminal punishment should be “graduated and
proportioned to both the offender and the offense.” Davis, 2014 IL 115595, ¶ 18
(citing Miller, 567 U.S. at ___, 132 S. Ct. at 2463, and Roper, 543 U.S. at 560).
When the offender is a juvenile and the offense is serious, there is a genuine risk of
disproportionate punishment. In Roper, Graham, and Miller, the United States
Supreme Court addressed that risk and unmistakably instructed that youth matters
in sentencing. Roper held that the eighth amendment prohibited capital 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. And Miller held that the eighth
amendment prohibited mandatory life sentences for juveniles who commit murder.
Miller, 567 U.S. at ___, 132 S. Ct. at 2475.

¶ 34 The defendant in this case did not receive a mandatory life sentence but rather a
discretionary life sentence. Thus, we initially must decide whether his Miller claim
is even viable. That is, we must decide whether Miller applies to discretionary life
sentences. In Davis, we noted:

“Miller holds that a mandatory life sentence for a juvenile violates the
eighth amendment prohibition against cruel and unusual punishment. ***
Miller does not invalidate the penalty of natural life without parole for multiple
murderers, only its mandatory imposition on juveniles. [Citation.] A minor may
still be sentenced to natural life imprisonment without parole so long as the
sentence is at the trial court’s discretion rather than mandatory.” (Emphases in
original.) Davis, 2014 IL 115595, ¶ 43.

Davis is correct about the scope of Miller. In Davis, however, we were not asked to
decide whether Miller could apply to discretionary sentences. Further, we did not
discuss Miller at length or address Montgomery at all because it had not yet been
decided. We turn to those cases.

de facto life sentences. Because that type of claim is not before us here, those cases are
distinguishable. We leave for another day any resolution of the purported appellate court split.

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¶ 35 In Miller, the Court identified a foundational principle that “imposition of a
State’s most severe penalties on juvenile offenders cannot proceed as though they
were not children.” Miller, 567 U.S. at ___, 132 S. Ct. at 2466. That principle
emerged from two lines of precedent: capital cases where the Court required the
sentencer to consider the characteristics of the defendant and the circumstances of
the offense before imposing the death penalty and so-called “categorical ban”
cases, like Roper and Graham, where the Court invalidated certain sentences for all
juvenile defendants. Roper and Graham established that “children are
constitutionally different from adults for purposes of sentencing” in three important
ways. Id. at ___, 132 S. Ct. at 2464. First, juveniles are more immature and
irresponsible than adults. Id. (citing Roper, 543 U.S. at 569). Second, juveniles are
more vulnerable to negative influences and pressures from family and peers than
adults. Id. And third, juveniles are more malleable than adults—their characters are
less fixed and their malfeasance is less indicative of irretrievable depravity. Id.
Those differences lessen juveniles’ moral culpability and enhance their prospects
for reform. Id. at ___, 132 S. Ct. at 2465. Thus, the Miller Court summarized:

“[T]he Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders. [Citation.] By
making youth (and all that accompanies it) irrelevant to imposition of that
harshest prison sentence, such a scheme poses too great a risk of
disproportionate punishment.” Id. at ___, 132 S. Ct. at 2469.

¶ 36 The Court noted, “Because that holding is sufficient to decide these cases, we
do not consider [the petitioners’] alternative argument that the Eighth Amendment
requires a categorical bar on life without parole for juveniles, or at least for those 14
and younger.” Id. The Court continued, recognizing that life without parole
sentences for juvenile defendants may comport with the eighth amendment:

“[G]iven 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. That is especially so because of the great difficulty we
noted in Roper and Graham of distinguishing at this early age between ‘the
juvenile offender whose crime reflects unfortunate yet transient immaturity,
and the rare juvenile offender whose crime reflects irreparable corruption.’

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 Although we do not foreclose a sentencer’s ability to make that judgment in
homicide cases, we require it to take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.” Id.

¶ 37 The Court reiterated that its decision “mandates only that a sentencer follow a
certain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty,” life imprisonment without
the possibility of parole. Id. at ___, 132 S. Ct. at 2471. Stated differently, a trial
court must consider a juvenile’s “age and age-related characteristics and the nature
of their crimes” as “mitigating circumstances.” Id. at ___, 132 S. Ct. at 2475.
Earlier in its opinion, the Court discussed those characteristics:

“[I]n imposing a State’s harshest penalties, a sentencer misses too much if he
treats every child as an adult. To recap: Mandatory life without parole for a
juvenile precludes consideration of his chronological age and its hallmark
features—among them, immaturity, impetuosity, and failure to appreciate risks
and consequences. It prevents taking into account the family and home
environment that surrounds him—and from which he cannot usually extricate
himself—no matter how brutal or dysfunctional. It neglects the circumstances
of the homicide offense, including the extent of his participation in the conduct
and the way familial and peer pressures may have affected him. Indeed, it
ignores that he might have been charged and convicted of a lesser offense if not
for incompetencies associated with youth—for example, his inability to deal
with police officers or prosecutors (including on a plea agreement) or his
incapacity to assist his own attorneys. [Citations.] And finally, this mandatory
punishment disregards the possibility of rehabilitation even when the
circumstances most suggest it.” Id. at ___, 132 S. Ct. at 2468.

¶ 38 Miller contains language that is significantly broader than its core holding.
None of what the Court said is specific to only mandatory life sentences.
Montgomery made that clear. In Montgomery, the Court held that Miller applied
retroactively. 577 U.S. at ___, 136 S. Ct. at 736. Because the defendant there had
received a mandatory life sentence, which violated Miller, the Court reversed that
sentence and remanded for further proceedings. In doing so, the Court offered
insight into Miller. The Montgomery Court summarized Miller in several similar

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 ways. The Court asserted that “Miller requires that before sentencing a juvenile to
life without parole, the sentencing judge take into account ‘how children are
different, and how those differences counsel against irrevocably sentencing them to
a lifetime in prison.’ ” Id. at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at ___,
132 S. Ct. at 2469). The Court repeated that “Miller requires a sentencer to consider
a juvenile offender’s youth and attendant characteristics before determining that
life without parole is a proportionate sentence.” Id. at ___, 136 S. Ct. at 734.
According to the Court, “[a] hearing where ‘youth and its attendant characteristics’
are considered as sentencing factors is necessary to separate those juveniles who
may be sentenced to life without parole from those who may not.” Id. at ___, 136 S.
Ct. at 735 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2460).

¶ 39 Notably, unlike Miller, Montgomery did not specify which characteristics
attend youth. The Court remained hesitant to create more procedural requirements
for state trial courts, such as a requirement that courts make findings of fact
regarding a juvenile’s incorrigibility, before imposing a life sentence. Id. at ___,
136 S. Ct. at 735. The Court emphasized, however, that while “Miller did not
impose a formal factfinding requirement[, that] does not leave States free to
sentence a child whose crime reflects transient immaturity to life without parole.”
Id. Such a sentence is disproportionate under the eighth amendment. Id.

¶ 40 A handful of cases from other states have limited Miller and Montgomery to
only mandatory life sentences. See Foster v. State, 754 S.E.2d 33, 37 (Ga. 2014);
Arredondo v. State, 406 S.W.3d 300, 307 (Tex. App. 2013); see also Jones v.
Commonwealth, 795 S.E.2d 705, 721 (Va. 2017) (“[b]oth cases addressed
mandatory life sentences without possibility of parole” (emphasis in original)).
Those cases give insufficient regard to the Supreme Court’s far-reaching
commentary about the diminished culpability of juvenile defendants, which is
neither crime- nor sentence-specific. The greater weight of authority has concluded
that Miller and Montgomery send an unequivocal message: Life 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. See, e.g., State v. Riley, 110 A.3d 1205, 1216 (Conn.
2015) (“Miller does not stand solely for the proposition that the eighth amendment
demands that the sentencer have discretion to impose a lesser punishment than life
without parole on a juvenile homicide offender”); Aiken v. Byars, 765 S.E.2d 572,

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 576 (S.C. 2014) (“whether their sentence is mandatory or permissible, any juvenile
offender who receives a sentence of life without the possibility of parole is entitled
to the same constitutional protections afforded by the Eighth Amendment’s
guarantee against cruel and unusual punishment”). We agree with that conclusion
and hold that Miller applies to discretionary sentences of life without parole for
juvenile defendants. We must next decide what it means to apply Miller.

¶ 41 The defendant urges us to adopt the characteristics mentioned in Miller, which
he terms the “Miller factors,” and direct trial courts to use them when revisiting life
sentences imposed on juvenile defendants before that case was decided. In
response, the State acknowledges that Miller requires trial courts to consider the
mitigating characteristics of youth. The State, however, contends that, although the
Court provided an illustrative list of some of those characteristics, it did not require
consideration of any specific factors.

¶ 42 The appellate court observed that courts in other states have struggled with how
to apply Miller. 2016 IL App (5th) 100587-B, ¶ 33 (quoting Riley, 110 A.3d at
1214 n.5). Some courts have read Miller narrowly, holding that trial courts must
consider generally mitigating circumstances related to a juvenile defendant’s
youth. See, e.g., Ex Parte Henderson, 144 So. 3d 1262, 1283 (Ala. 2013) (“the
Miller Court did not delineate specifically which factors to use in sentencing a
juvenile”); Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (holding that the
sentencing court in that case complied with the requirements of Miller by taking
into account how juveniles are different from adults); State v. Long, 138 Ohio St. 3d
478, 2014-Ohio-849, 8 N.E.3d 890, ¶¶ 15-16 (stating that Miller “does not lay out
the ‘certain process’ that trial judges should follow when sentencing juveniles” and
that various factors “may prove helpful” but are not required).

¶ 43 Other courts have read Miller more broadly, holding that trial courts must
consider specifically the characteristics mentioned by the Supreme Court. See, e.g.,
People v. Gutierrez, 324 P.3d 245, 268-69 (Cal. 2014) (“Miller discussed a range of
factors relevant to a sentencer’s determination of whether a particular defendant” is
irreparably corrupt); Riley, 110 A.3d at 1216 (quoting Miller’s list of
characteristics); State v. Null, 836 N.W.2d 41, 74-76 (Iowa 2013) (listing factors
and stating that Miller provided “clearer guidance on the considerations given in
sentencing”); State v. Fletcher, 47,777, p. 10 (La. App. 2 Cir. 4/10/13); 112 So. 3d

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 1031 (remanding for “a more thorough review of the appropriate factors enunciated
in Miller”); State v. Hart, 404 S.W.3d 232, 238 (Mo. 2013) (en banc) (holding that
the juvenile defendant’s life sentence was unconstitutional because “the sentence
[must] consider whether this punishment is just and appropriate in light of [his] age,
maturity and the other factors discussed in Miller”); State v. Ali, 855 N.W.2d 235,
256-57 (Minn. 2014) (stating that “mitigating circumstances might include, but are
not limited to,” the characteristics in Miller); Parker v. State, 2011-KA-01158-SCT
(¶ 19) (Miss. 2013) (noting that Miller identified “several factors,” then quoting
Miller’s list of characteristics); Luna v. State, 387 P.3d 956, 962 (Ok. 2016)
(quoting Miller and labeling three of the listed characteristics “important
youth-related considerations”); Commonwealth v. Knox, 50 A.3d 732, 745 (Pa.
2012) (stating that “although Miller did not delineate specifically what factors a
sentencing court must consider, at a minimum it should consider” a paraphrased
version of the listed characteristics); Aiken, 765 S.E.2d at 577 (quoting the factors
listed in Miller); Bear Cloud v. State, 2013 WY 18, ¶ 42, 294 P.3d 36 (quoting the
factors listed in Miller and stating that those factors are “not exhaustive”). As the
California Supreme Court observed, “the emerging body of post-Miller case law”
has held that a trial court must consider some variant of the Miller factors before
imposing a life sentence without the possibility of parole. Gutierrez, 324 P.3d at
269.

¶ 44 We adopt the latter approach. Not only is that approach consistent with People
v. Reyes, 2016 IL 119271, ¶ 3, where we referred to the characteristics listed in
Miller as “mitigating factors,” it is also consistent with our earlier case law. We
have long held that age is not just a chronological fact but a multifaceted set of
attributes that carry constitutional significance. See People v. McWilliams, 348 Ill.
333, 336 (1932) (stating that, in sentencing a juvenile defendant, the trial court
“may search anywhere” for aggravation and mitigation evidence, including “the
general moral character of the offender, his mentality, his habits, his social
environments, his abnormal or subnormal tendencies, his age, his natural
inclination or aversion to commit crime, the stimuli which motive his conduct, and
*** [his] life, family, occupation, and record”); People v. Miller, 202 Ill. 2d 328,
341 (2002) (holding that “a mandatory sentence of natural life in prison with no
possibility of parole grossly distorts the factual realities of the case and does not
accurately represent [the] personal culpability” of the 15-year-old defendant); cf.
People v. La Pointe, 88 Ill. 2d 482, 497 (1981) (“[h]ighly relevant—if not

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 essential—to [a sentencing judge’s] selection of an appropriate sentence is the
possession of the fullest information possible concerning the defendant’s life and
characteristics” (internal quotation marks omitted)).

¶ 45 Additionally, consideration of the Miller factors is consistent with section
5-4.5-105 of the Unified Code of Corrections, which now requires the trial court to
consider factors taken from the Supreme Court’s list. See 730 ILCS 5/5-4.5-105
(West 2016). Because Miller is retroactive (see Montgomery, 577 U.S. at ___, 136
S. Ct. at 736; Davis, 2014 IL 115595, ¶ 39), all juveniles, whether they were
sentenced after the statutory amendment became effective on January 1, 2016, or
before that, should receive the same treatment at sentencing. See People v. Ortiz,
2016 IL App (1st) 133294, ¶ 23. 6

¶ 46 Under Miller and Montgomery, a juvenile defendant may be sentenced to life
imprisonment without parole, but only if the trial court determines that the
defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or
irreparable corruption beyond the possibility of rehabilitation. The court may make
that decision only after considering the defendant’s youth and its attendant
characteristics. Those characteristics include, but are not limited to, the following
factors: (1) the juvenile defendant’s chronological age at the time of the offense and
any evidence of his particular immaturity, impetuosity, and failure to appreciate
risks and consequences; (2) the juvenile defendant’s family and home
environment; (3) the juvenile defendant’s degree of participation in the homicide
and any evidence of familial or peer pressures that may have affected him; (4) the
juvenile defendant’s incompetence, including his inability to deal with police
officers or prosecutors and his incapacity to assist his own attorneys; and (5) the
juvenile defendant’s prospects for rehabilitation. See Miller, 567 U.S. at ___, 132
S. Ct. at 2468.

¶ 47 For juvenile defendants like the defendant in this case, who were sentenced
before the statutory amendment, any inquiry into the Miller factors is
backwards-looking. As Graham instructed, “[e]ven if the State’s judgment that [the
defendant] was incorrigible were later corroborated by prison misbehavior or

6
According to a recent report, there are 20 juveniles, including the defendant, serving
discretionary life sentences in Illinois. See A State-by-State Look at Juvenile Life Without Parole,
Associated Press, July 31, 2017, https://apnews.com/9debc3bdc7034ad2a68e62911fba0d85.

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 failure to mature, the sentence was still disproportionate because that judgment was
made at the outset.” Graham, 560 U.S. at 73. Bad conduct while imprisoned cannot
buttress a finding of incorrigibility. Similarly, good conduct while imprisoned
cannot undercut such a finding. In revisiting a juvenile defendant’s life without
parole sentence, the only evidence that matters is evidence of the defendant’s youth
and its attendant characteristics at the time of sentencing. Whether such evidence
exists depends upon the state of the record in each case. A court revisiting a
discretionary sentence of life without parole must look at the cold record to
determine if the trial court considered such evidence at the defendant’s original
sentencing hearing. We must decide whether the trial court did so here.

¶ 48 In announcing the defendant’s sentence, the trial court explicitly stated that it
considered the trial evidence and the PSI, as well as the evidence and arguments
from the sentencing hearing. The trial court knew the defendant was 17 at the time
of the offense, and the prosecutor and the defendant’s attorney both highlighted his
age in their arguments at the sentencing hearing. The PSI and the psychological
reports provided some insight into his mentality but did not depict him as
immature, impetuous, or unaware of risks. The PSI included information about the
defendant’s family. Although his father and his stepfather had died, he reportedly
maintained a close relationship with his mother and siblings. The evidence at trial
showed that there was some dispute between the defendant and Davis about who
shot Esther, but both were intimately involved with the offense. The defendant’s
fingerprints were found in two locations at the house, including the cabinet where
the rifle was kept. The PSI alerted the trial court to the defendant’s susceptibility to
peer pressure, as well as his low intelligence and possible brain damage from a head
injury, but there was nothing presented at trial or sentencing to indicate that the
defendant was incompetent and could not communicate with police officers or
prosecutors or assist his own attorney. Dr. Raza’s second report spoke positively
about the defendant’s verbal intelligence. As to the defendant’s prospects for
rehabilitation, the PSI included a statement from the probation officer, who found
“no predilection for rehabilitation,” in light of the defendant’s “history of senseless
criminal acts of mortal violence toward others and lack of remorse for his victims.”

¶ 49 The defendant insists that the trial court did not, in fact, consider any mitigating
circumstances of his youth because the trial court stated that it found “no mitigating
factors.” The defendant misapprehends the trial court’s statement. The court

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 actually said that it considered the statutory factors in aggravation and mitigation
and that it found none of the latter. The trial court’s statement is undeniably true.
There was no evidence at trial or sentencing regarding any of the 12 factors listed in
section 1005-5-3.1(a). See Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-5-3.1(a). Further, the
defendant forgets that he advised his attorney that he did not want to offer any
mitigating evidence and his mother advised his attorney that she did not want to
testify on his behalf. The defendant’s attorney informed the court of their wishes
and acknowledged, “I have no evidence to present at this time.” And the
defendant’s attorney specifically declined the trial court’s invitation to make any
additions, corrections, or modifications to the PSI. In short, the defendant had every
opportunity to present evidence to show that his criminal conduct was the product
of immaturity and not incorrigibility. See Montgomery, 577 U.S. at ___, 136 S. Ct.
at 736 (juveniles facing life sentences “must be given the opportunity to show their
crime did not reflect irreparable corruption”). He chose to offer nothing.

¶ 50 Thus, the trial court had no evidence to consider on any of the statutory factors
in mitigation, but some evidence related to the Miller factors. On the other side of
the scale, the trial court had significant evidence to consider on the statutory factors
in aggravation. See Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-5-3.2. The defendant admits
in his reply brief that “there are bad facts.” That is an understatement. The trial
court knew those facts, having presided over the case from pretrial motion hearings
through the trial and the sentencing hearing. The court concluded that the
defendant’s conduct placed him beyond rehabilitation and sentenced him to life
without parole. The defendant’s sentence passes constitutional muster under
Miller.

¶ 51 Finally, we note that amicus asks for a categorical ban on life sentences for
juveniles. We refuse to adopt such a rule. Whether or not discretionary life
sentences for juveniles are advisable is a question for legislators. Whether or not
such sentences are constitutional is a question for judges, and the justices of the
United States Supreme Court have so far declared that they may be, provided the
trial court complies with Miller. Even the defendant agrees that “[n]othing in this
Court’s jurisprudence or Miller held that a natural life sentence may never be
appropriate.”

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¶ 52 CONCLUSION

¶ 53 For the reasons that we have stated, we affirm the appellate court’s judgment,
which affirmed the trial court’s decision to deny the defendant’s motion for leave to
file a successive postconviction petition.

¶ 54 Affirmed.

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