commission has calculated the life expectancy of the general prison population to be sixty four years old and buffer and sanders that appellate court consider this report coming to their determination on whether a second because of the fact that incarcerated then release and million crimes in it will reimpose that i do not know but i have cited other studies in my opening brief which shows that extended incarceration tends to reduce that life expectancy even longer than the back and forth but when you say you presume reduces a life expectancy ar relying upon the social security administration life expectancy the rescue some basis from which is a reduction in the general social security would be for the general population  most figures are around the seventy nine day mark for the average united states population and there's differences based on race as well  maybe that's something a court like ours a middle viewing court would need for guy things before we with our robes just decide that fifty eight or sixty two whatever is  establish a bright line rule and i think it was evans where the first district did waiver on establishing any sort of rule but to the contrary on bufferin sand they relied on data to kind of not specifically pinpoint but get to that sixty four number and we're not asking for a bright line rule necessarily because this seventy two figures so that if they are likely going to die much younger than the average person that may be a factor that's and not an issue in this particular case because there's nothing on the record point one w rarest of juvenile offenders and miller emphasized that life sentences are only appropriate when a juvenile exhibits retrieval to irretrievable or depravity where rehabilitation isn't possible in life with adult one point the court states whether you're eighteen twenty eight thirty or nine meeting visit kind of leader who will solve in a sentence which will have you dealing with family members when they're old people if you live out your sentence so he's comparing him to adults can consider in the other cases where the courts have found including this court has found that the finding her meaning portability the only any murder is a serious crime but in those cases the murders are much more heinous for example and in stafford the person the defendant stabbed the victim over forty forty five times in the same thing in profit in profit also he kidnapped raped and murdered a sixteen year old girl in a home and he went on a eight to eleven person killings that's not what we have here we have  single murder it could be gang related or drug related murder it's an unfortunate murder but it compared to where other courts have found permanent courts or belittle this is not as heinous and at that time seventeen was considered so this even if even if a court looked at it seventeen the courts took view one so as an adult not as a juvenile and that along with expressly comparing him to eighteen twenty thirty eight year olds and referring to them as being of eighteen years of age that shows that the court didn't consider him as a juvenile and consider not yet this crime is like the archetype of a juvenile crime someone who's young who doesn't appreciate the risk of prison doesn't  how member specifically was a child as police reports when he's stated that he's affiliated with gangs and that younger members of the community looked up to him for his gang and all and flaws that testify that that's where he bought his drugs so this is an older member gang member that exerting this influence on him to be out there selling drugs and that's what eventually resulted and the first thing i did after the murder was go around and tell and the remedy we ask here is that we would request a new sentencing hearing that is the remedy that was offered by the first district in the atto as well as a few other cases and the church third district we way older than even the most recent the closest illinois court case is sixty eight years away and this is four years past that ok so serve their sentence who is fo would be the closest supreme court authority on this that is obviously that would put the defendant in that case said one hundred five years old so it's not much help as to cases here and cases like this where the defendant is clearly argument here trial court used a method the defendant doesn't agree with that the state agreed with they looked at the objective source period ministration lifespan calculator that's the the average lifespan of someone previous two years old that's ten years less than what different it would be when he gets out of prison the standard of a defacto life sentence that definition is the functional equivalent of life without possibility of parole census survivable and thus cannot be considered the functional equivalent of life without parole same here this is if it will be four years older than the the different and hoity which is the i guess old this if we're going to look at the what should be considered a de facto life sentence i would argue that the most objective the fairest in the easiest way to determine that is the exact way the trial court did here and that's the efforts age of a person if in the average lifespan of a person different age again as justice turner sort of pointed out there's a hard line of eighteen and that's kind of important in this case just as the illinois supreme court found last week miller and his progeny isn't available to anyone past the age of eighteen i think that was people versus sheriffs not what will of this case but that's what the supreme court found defendant was only two weeks shy of his eighteenth birthday when he did the shooting in this case so if there's a hard line rule at eighteen there should be an objective hard line rule as to what constitutes a de facto life sentence even if we're generous and say that the the old common eighty forty is over the hill or whatever eighty being the average lifespan still whatever i'm sure the few life span average lifespan in prison this is shorter for a multitude of reasons none of them have to do with predicting someone's life span who follows the straight and narrow and prison and  survive this the the sentence or you're just too busy eating there's his life span is going to be sure no i'm saying to the at the mean will go down based on people in prison who so not in this case if it was in constant custody from thirteen to eighteen with only eight months out of custody and then as this court stated this court quoted an increasingly escalating display of criminal activity resulting in this murder the point being that any defendant if we do take as justice here says their individual characteristics i would submit that any definitive can craft some criteria that shortens his lifespan sufficiently enough that they can call whatever their weight the sentence is the fact a life sentence and that would be a burden on reviewing courts that there simply shouldn't be as as the jackson court stated this this these factors these policy considerations  better better handled in a different form one form or debbie the legislature a bright line rule from the illinois supreme court but mainly probably the legislature and the maximum yeah actually i well i may not be correct in what i'm saying about the other factors in this are you talking about like what a what a trial court has to consider as to defend its youth and attendant characteristic yes i think those that would those factors were laid out in the home and case the openness of the home or case by now and those only apply to cases where miller lives miller again i don't know if there's any but i don't know if montgomery was a discretionary or mandatory life without parole sentence i don't know if there's any u s supreme court authority that has held a what is a fact a life sentence or not i don't think there is i think that's that stems from ray as in illinois but holden no the first step is to determine whether it is a fact a life sentence then if we determine it is for the sake of rehabilitation is impossible i assume you don't agree with that of course not and later my brief on page nineteen i think i quote the court all right a paraphrase the court finding that defendants rehabilitative potential is non over the considerable factors in home and they always have a way in favor of the state and this court most importantly in stafford i think that was was that you just connect i'm not sure i think it was but i can text to check the names before it came in here in judge n stafford the court stated that they're not it doesn't need to be the specific words said by the trial court and sentencing the defendant needs to convey a finding of permanent encourage would or would not be a defacto license i mean there are a number of illinois case there's a number of cases our court case and there will be i've just in my own experience there will be more probably unpublished rule twenty three opinions coming down the pike and all districts but this this would be again this would be i guess if it's a published opinion be the highest of age and sedated not a de facto life sentence but again i don't i would submit that the evidence of court in the hallway or both rejected any of the actuarial tables are calculating that for a more objective approach and if those sentences i think if they were before the panel if the sentences were this in a defendant got out at age seventy two i feel like they would say the same there sentiment is the same as this an average person will live longer than seventy two therefore he has a possibility of life outside the prison walls which is all that montgomery that most recent u s supreme court authority guarantees this is not the functional equivalent of a life without parole sentence so it doesn't meet the definition of a de facto life sentence but that's true back to the home and factors chronicle chronological age here is i'm almost as old as possible it was two weeks shy of in the eighteenth birthday that also plays into the other factors there's nothing in the nothing in the record that states to finish particularly immature or couldn't appreciate the consequences of his actions in fact he doesn't take responsibility for that actions at any point even all the way through the statement an allocution where he denies any involvement again and doesn't apologize to the victim or the victim's family or the victim's friends he had a relatively stable home environment or nothing in the case to the contrary there was nothing that indicated he was pressured into this by any family or friends and finally the only kid out of custody for eight  and things of that nature and again on this there's nothing in the record to suggest otherwise but most importantly maybe besides a chronological age here the trial court discussed at length that the defendant has no rehabilitat potential he's like he's not been in custody since the age of thirteen almost constantly out takes only a few months to commit another crime and be sent back to be sent back to you and i'll be o c and  in violation of probation when he committed this murder he removed his ankle bracelet chicago went down the champagne to sell drugs in a duck shooting an innocent man on man point blank where a witness stated that he looked happy and normal directly after shooting him a man that he didn't know so the circumstances of this murder also come at counsel counsel submits that it was not a particularly heinous murder i would i would submit to the contrary in the trial court went through the circumstances of this  murder and sentencing the defendant so as stafford no stafford made a specific point of recognizing that the trial court stated it considered counsel's argument the testimony that at sentencing defendant but there their sentencing conveyed that those sentiments and that's what the sentencing in this case did to even though as i said as i argued first this is not in fact a life sentence even if it is considered that holeman  us here the successive post fiction petition was allowed is that many different it doesn't i mean it procedurally it's it's it's rather odd again opposing counsel points out most of the time if a court recognizes the causing prejudice pash test is passed they a lot of time to simultaneously pass it through the first stage of post a picture mission to the second three stage the familiar three stage procedure for all petitions not just initial indications section one twenty two bash two point one says that every petition filed goes through the first stage of analysis within ninety days that's when the trial court determines whether it's frivolous or patently without respond but if the trial court is establishing that cause and prejudice were not only alleged sufficiently but proven then that would be there would be no reason for any of the three stages of post conviction proceedings after that to this already been determined the defendant's been prejudice that's not the point is the point of causing prejudice analysis is whether causing prejudice are sufficiently alleged and here the trial court seems to have relied on miller johnson all the cases that sided prejudice was not a foregone conclusion because this wasn't a de facto life sentence miller didn't apply so if it there was any error in this case it was an error and the finance failure this got one step further than it should none of the on the other but several of the buffer for example with sixty eight years and sanders was sixty six years or more cheese seventy five years in all three of those cases the that considers the fact if you as a juvenile considers the actual views that are involved with you and asking for him to be released after twenty years of murder you can still be sentenced to an appropriate amount that once the court considers that he's a juvenile also i believe the court asked if there are any aggravating factors and the only aggravating factors that the court can seem to consider was deterrence and that's not an appropriate factor to be considering for a juvenile and in montgomery the court stated  the court say that deterrence rationale likewise does not suffice and the same characteristics that render juveniles less culpable than adults make them less likely to consider potential punishment so that the court considered basically the only thing in aggravation to be deterrence and gave them a sentence five years from the that mack shows that the court in our program appropriately consider the juvenile characteristics involved and the state cited several times the staff are comparing this case safir is a much different case and the defendant there from the age of eight exhibited signs of irretrievable depravity making saying he wanted to be a murderer playing like he was stabbing with people that's at the age of eight he sexually assaulted his sibling and even before