the next case call for argument is people vs barnes good afternoon good afternoon may i please court the counsel my name is alexandra munches i'm with the office of the state of health defender and i represent dunfield barnes at the age of seventeen dunfield barnes robbed his neighborhood gas station in murphysboro illinois he carried an unloaded revolver when the clerk opened the register he placed this revolver on the counter before the clerk and emptied the cash train to a backpack he then picked up the revolver and left this robbery lasted between one and two minutes and the police arrested him a few minutes after that dunfield ultimately received a twenty two year sentence which is the sum of a seven year classic sentence and a fifteen year automatic firearm add on he appealed and during the pendency of his appeal section five hundred and forty five thousand one hundred and five became effective the statute grants trial court's discretion to declined to impose otherwise applicable firearm add ons to juveniles this appeal concerns the constitutional effect of this law on dunfield trial sentence more specifically dunfield argues that following the napping of the statute the automatic imposition of a firearm add on violated the proportion of penalties clause as applied to him now violation of the proportion of penalties clause occurs the punishment is so wholly disproportionate to the offenses to shock the moral sense of the community this is essentially a value judgment or moral question that requires a support to review the gravity of the offense in connection with the severity of the statutorily mandated sentence and all within rpds evolving standard of decency so then misses court looks at are the facts of the case statutory text in this court's judgment is that a court's own judgment that is the key really to this test is the evolving standard of decency courts have never defined that the only supreme court says as our society evolves so the two direct concepts of elemental decency in fairness which shaped the moral sense of the community now this appeal presents a swimmingly novel argument about the evolving standard of decency in illinois specific read on shall argue said if you've announced sentencing statute incorporating illinois own understanding of miller graham roper and others should also inform this court's understanding of our evolving standard of decency that is even if it becomes effective during the pendency of a direct appeal and untrue sites kentucky good if if he can talk to you about opposition it's a case in which the us supreme court will go to federal courts and state courts that violates basic norms of constitutional adjudication to deny equal treatment across cases to see why this court should look to the text of section five hundred and forty five thousand one hundred and five now this particular subsection b abolish the automatic application of firearm enhancements to juveniles and in doing so it rejected any former theological justification for automatically punishing children like adults now one other thing that this section has done do you think this is similar to the sentencing statutes that are are being amended today where you can't mandatorily sentence a juvenile to live a life you think that this is hard with that evolving public housing i think so your honor i think this court will see and people be hunter and people would be home in the illness of importance the most recent decision sincerely drew off that the general assembly is actively trying to incorporate this area of the law into juvenile sentencing and that's how i mistake as illness import is finally saying only leads the nation in juvenile justice issues and what's i think particularly remarkable that the statute is that actually leaves room open for this court's discretion so if you look at that sub section b people be hunter noted that it's intentionally silent regarding retro activity so the only supreme court had to look to the statute on statutes to decide well should subsection a apply retroactively or not and what they said was well it sort of depends so there's no retroactive application if you're analyzing under the mitigation portion of the statute statutes however retroactive of applications okay if you cannot elect score it i haven't tried it so it's like if the juvenile elects score for it at a retrial it says actually the statute is actually serving bill one and i think that this court should take that as a signal that the legislature is looking to work with the court that it's a joint enterprise between the courts and the legislature in the state that we are fond of saying leads the nation on juvenile justice issues are you basically asking for a vacation with the sentence and remand for re sentencing oh you mean for re sentencings what we're asking for is exceedingly to have mainly a new sentencing hearing at which the child court may exercise its discretion simply exercise discretion i think under the resentencing statue there would be a cap of twenty two years unless dunfield has done something bad in prison since then but yeah it's just a recap the cap between six and twenty two which the trial court may either impose twenty two just under the class x portion or declined to impose the fifteen add on and say it's just the second but somewhere between six and twenty two at a re sentencing hearing if we were to give you a hypothetical if we were to vacate and remap and on remand with the circuit court in its discretion decided that the hands but for the use of a firearm was appropriate and sentenced accordingly would that be an abuse of discretion it would not the issue in this particular appeal is the interplay between our evolving center and decency in the sort of stripping of the child court's discretion when that's the first time i've seen her hearing correct correct and so we're simply asking for a new sentencing hearing in which the child court may exercise its discretion in illinois we've long held that age is not just a chronological fact it's a multifaceted set of attributes security constitutional significance the facts of this case and argue call out from recent scene under this new statute although the offense dunflied committed was a serious one the circumstances of the case undercut the general severity of the conduct he used an unloaded gun he had no prior criminal history he has a supportive family network at seventeen he expressed remote remorse in allocation he apologized he empathized with the gas station clerk he explained that he learned from his mistakes dunfield also asked to be placed in drug and alcohol treatment so i mean those are not the factors that we're considering this appeal right correct what we're saying simply is that at re sentencing there's a real possibility that the court will exercise its discretion a way that will positively affect dunfield's life dunfield does not argue that as a matter of constitutional law the child court may not impose the firearm firearm enhancement to re sentencing that is not his argument now dunfield argues that given the circumstances of the offense his personal characteristics there's a real possibility the trial court will resentence him less virtually if not bound by this former sentencing statute respectfully nigel asked this query mandatory sentencing the trial court may exercise that discretion may otherwise find him post a firearm incident what's the six to twenty two years that was discretionary wasn't it the seven years was discretionary and the fifteen was automatic and i think that under the rate presentencing statute by the cap would be at twenty two right but so i i'm not clear why we would vacate the entire sentence as opposed to just the automatic imposed sentence on what basis would we vacate the entire sentence well i think that the the record does not demonstrate definitively how the sentence was calculated in the sense that where the trial court had only imposed close to seven years and not impose the fifteen or did he want did he think the fifteen was otherwise if he had his discretion that he could impose we think that there's an open questionnaire and so i see the open question on fifteen years because that was mandatory and you're following kind of that philosophy of well he should have had the trial court should have had some discretion but the six to twenty two years fam the trial court clearly did have discretion i think i think i think that's correct i think that we misspoke i think that you know there would be a good argument that the lower bound on these seven as opposed to six but that even with this bound you don't know whether or not the trial court would have exercised discretion to decline imposes firearm enhancement or would it have sort of you know shifted somewhere between the range of seven and thirty otherwise if there are no further questions i thank you no i don't think there are thank you counsel you've been around a lot lately hi yes i have your honor your honor counsel may appeal to court kelly stacey appearing for the safe in the defendant's reclined brief he acknowledges that even if this case would be remanded for re sentencing the trial court can still impose the fifteen year firearm enhancement the defendant points out that he apologized to the store clerk i agree that that did happen at the sentencing hearing that he has helped people at church and then he had no prior adjudications or convictions i also agree that he obtained his ged and has a supportive family life but don't you think that's probably why you got the seven years as opposed to the higher end of the sentencing i would have to agree with that assessment that that is probably why he got the seven years i go back to my last question which is the only thing that was mandatory here was that fifteen years extension because of the firearm and what do you think about the argument that because of his age his tender age which now we're recognizing you know there are issues to be concerned with what about that but the court should should be able to take that into consideration all those factors behind his back i think the hunter case that we've both addressed on the seven minute briefing has concluded that the statute does not apply retroactively so the only way i think that this gets reached by this court is if there is a finding that the sentence violates the proportion of penalties cards and that would need to would necessitate finding by this court that that the sentence is so cruel degrading or disproportion to the offense that the sentence shocks the moral sense of the community i agree with me to the statements that opposing counsel made on the evolving sense and i think it does apply to as justice case mentioned the miller case how we're viewing younger offenders and when does the brain stop wiring and when do they have those adults the adult ability to be able to determine the consequences of their action but in this case in looking at the seriousness of the offense what we have is the defendant pointed a weapon at a store clerk he demanded money and told her he would shoot her he told her if she did not turn over the money she would be hurt he did have the wherewithal to conceal his identity during the armed robbery he wore a mask and although he argues that the gun was not loaded but there would be no way for a person on the other end of that gun to know whether or not it was loaded in her testimony was she believed this was a fully operational gun and wouldn't have had any reason to think it was not loaded she suffered severe anxiety and had panic attacks i understand the defendant's argument that he did this to obtain peer approval but there's also some information in the record that he had posed for photographs with the gun and maybe to try to post them on social media i don't fully understand that whole social media component it's something i've just got me to in the last year but i don't pose with the weapons but along those same lines this defendant acted alone in carrying out that that robbery it shows that there was planning on his part and not an impulsive act we agree that if this court does find that this particular sentence shocks the moral sense of the community that the case would go back to the trial court for re sentencing i think justice skates raises an interesting question as to where would the sentencing have to fall i know it would not be will be increased but i don't have a definite answer beyond that in any event if i have no further questions from the panel the state would ask you to find the sentence imposed was not unconstitutional as applied to this defendant defendant and affirm thank you your honor thank you council council any rebuttal so i think what's clear from this record and from the state's acknowledgements in this court's questions are dunfield's not an incorrigible youth no he is a typical young person who made a very bad decision but under the law of illinois for the youth the turns is not further because he was less likely to consider potential punishments and the goal incapacitation rehabilitation are negated cause he's not incorrigible all of these factors that you're talking to us about regard to this young man are we to consider those when we talk about the constitutional proportionality clause so i think what i mean it is a question of law that's before us certainly i consider this first state and sort of the brush clearing basically dunfield is definitely not an incorrigible youth i like that what does that mean just just the idea that you know to put it in really stark turns terms if under miller up graham roper children of all people should receive new sentencing hearings the facts of this crime are far less severe and do not demonstrate on the face of the record in court durability by any means but what about hunter that says that the statue is not retroactive so i thin hunter says it's it's a new one's talking so hunter says that section b is intentionally so i don't that's a quote intentionally silent on retroactivity and so that almost been court look to the statute on statutes and under the section of statutes what we found is that it was ambivalent on retro activity mainly if you analyze it under the mitigation line of cases no retroactive application however the section of statutes approves of the application of the statute following a retrial and re sentencing so i think what that tells us is that the general assembly is intentionally silent in subsection b they're signaling to this court this is a joint enterprise we have we've seen miller graham roper we know that our statutes have not got it done and we know that almost supreme court keeps finding as applied in facial challenges to the statutes and we are now opening this up to the court and under leon miller we know that this court is supposed to exercise its own judgment about the evolving standard of decency so i don't think that hunter forecloses this claim at all i think on the contrary it opens up room for this court's discretion so i think i just want to conclude by saying dunfield is asking for exceedingly narrow relief in two ways he wants a resentencing hearing at which the trial court may exercise its discretion and he's asking for a type of relief that is not going to open up the flood gates of litigation the types of cases that meet this requirement are where the defendant was less than eighteen where a firearm add on was at issue and where the direct appeal was pending on january 1st two thousand and sixteen these is a very narrow set of cases and dunfield asks that he simply get that resentencing hearing in which the trial court can exercise its discretion all in accord with illinois evolving standard of decency if there are no further questions i don't think there are thank you council thank you we appreciate the briefs and arguments with council we'll take the case under advisement and issue a ruling in due course thank you