the fortis are to public court of the state of illinois have now convened the animal james they connect presiding this is our next case of that day for nineteen old three to three the people of the state of illinois versus judge it's you know than deciding to take one of the state's younger offenders and sentence them to life in prison or what to amounts to defacto life in prison and in this case it's well established that children are constitutionally different than adults it's at the sentencing hearing the court did not comply with miller and illinois statutory law which required it to consider down to the potential for real prospects for rehabilitation for sentencing him to life in prison and while the court acknowledge the fact that he received a g d and that he expressed remorse that the sentencing hearing the court did not consider the fact that he had actually been a role model for youth in prison that the that the juvenile detention unit was actually impressed with this progress and that his most recent behavioral it incident was over three years prior so and considering that in context that demonstrated that you know the incidents that occurred between twenty  while numerous every time you know over the ten years has been in prison he actually and it actually improved with his behavioral issues and it also you know it didn't consider the weight of down to taking responsibility gain it occurred over three years prior so and before that before the two thousand and sixteen incident the previous incident you know is over five years six sorry my math might be wrong but five or six years prior in two thousand  eleven so we have a long period of time or that there is no longer engaging in the speech in these behaviors so in january two thousand and sixteen he would have been approximately how old if it ninety five  qualified if you know his brain was not fully developed at that time so that case was starting she would recognize the fact that you know your our brains aren't fully developed until the point of twenty five dollars so at that point it's he's still exhibiting some of those characteristics of you and and his is going to back to his previous behaviors however they didn't rise to the level in your honour's it was over socks and commissary items and again it was one isolated incident apt and it was very brief and they were there wasn't a lot of explanation as to what the specific circumstances of now really were according to the record and you know the courts have been actually referred to that in sentencing either at the court instead actually said that you know acknowledge that they on to list young but then said it was clear that he should have known his actions were you know could not be tolerated and your honors i don't need to i'm not in any way minimizing the seriousness of the fences because the offenses were absolutely horrific and it's you know but the fact of the matter is that even the most heinous of crimes and accordance with miller the or stay are still required to consider the fifteen to sixteen year olds including his older half brother so all the court of knowledge is that there's only some evidence of peer pressure in this case from his his brother it's not just from his brother it's actually that the presence of these other use of at least six other views who are actually older than him you know there is evidence that this was actually down to his misguided attempt to prove himself in some way to this other to these other groups and to these parents and considering that the court was aware down to struggles with school you know and being teased that that was admitted that the st sentencing hearing for being in special education classes in the record reflects that he was actually separated from the other students and that is when he started having behavioral problems even in school it is on surprising that he would want to show off and you know in a misguided absolutely horrific way but to actually participate with this group think and participate with these other q but it merely remarking on the presence of his mental deficiencies that the court the court didn't actually consider how that they'd be impacted the facts of this particular case because it further show that he is actually at can says that people with mental actual disability are actually followers not leaders so now the states you know the suggestion and it's brief that they've he was somehow the leader in the main ringleader of this group is completely unfounded by the record because yes you're on you begin by saying that the court did not comply with miller at home and i don't think you meant you basically ho court said that it actually didn't do at the sentencing that is a problem for me hat what's your response to that so so my response to that is that that does sound and it's a good lead in to actually what the jones court has has sort of hinted at and my response to that is that actually is not that i think this is a distinguishing situation this case because it is not let in illinois it is not that we're just required to consider do you think it's intended characteristics it's not as if in illinois it's been the case that you can just say we've considered this and it and it is accepted that way and in fact the st district and harvey has said it that you know mere awareness of ageing consideration just the quiet trial courts showing that doesn't actually show that it considered prospects for rehabilitation so illinois courts are  heading towards that direction of expanding those protections and set of minimizing those protections or you know that what i'm trying to say is there's a wider under the bill in that i fully understand this but it appears that a majority in lusby simply identified what the record included which was a p s i i that  contained information relative to the defendant's youthful characteristics that they identified that the fence council had asked the court to consider the depend and they concluded the majority concluded that because the trial court said it looked at everything and that it had taken into account all the statutory factors in aggravation and mitigation that that  trap court had in fact considered the fence youth and its attendant circumstances and found it to have been miller compliant how is that description of  is montgomery and miller pronounced that that there is no formal factual requirement of finding permanent corage ability for sat for instance or finally having to say rehabilitation but just that the proper consideration of the hallmark attributes of  hearing what specifically did the trial the judge say that in your opinion indicates it actually did not consider defendants you sure and i significance as well as it cites people point for the for the promise that where our current remarked that it was highly relevant if not essential to a sentencing judge his selection of an appropriate sentence it is the possession of the fullest information possible concerning the defendant's life and characteristics so and that based on that reading merely stating down to age bad is not that is contrary to long standing illinois does have to consider specific circumstances and we choose to take a more defendant friendly approach for lack of a better term at the moment there's any case that you're aware of you not want to indicate but the trial judge has found have found in that a still good law as far as i'm concerned that age again is not just a crown logical fact and illinois and my reading that's that still remains to be the case and the others it's not so bad that it is the court was septics morally required to consider potential for rehabilitation that fact remains independent of whatever jones says so given that that that that he actually there was potenti rehabilitation but the court just jumped to the conclusion that the offenses were so egregious and so you know so outrageous that it couldn't it didn't even consider its potential for rehabilitation that's not the law and that's not compliant with the with the you see it with the the criminal code with the u c c so that is not of the the law but your honour's i just like to make a comment about jones i'd like to turn to jones we submit that jones has no impact on our case that it makes that a bet is a narrow holding dealing with whether there has to be a formal finding of permanent court difficulty and in this case that's not what we're requesting that you find in this case that has no impact that the question here is whether the court had to make that finding because it did and whether it did or didn't isn't what we're asking you to find we're asking you to find is that it didn't miller in illinois law by considering his prospects for rehabilitation and although it was raised admittedly because of course it was pretty jones as a finding of her permanent corage ability the under right line reason for all of this because it's a matter of words is that deion toes rehabilitative potential is what he didn't consider so once going through the miller factors as part of yes that may have been me the lengthy history and i can find no case where the impact of peer pressure was more evident than in this case or group think and i'm also saying that you know while it's not directly related again but  and has never stated that it requires such a formal finding a formal procedural finding and other words it's a matter that it's part of it's inherent in miller and evaluating the substantive nowhere factors that you  would that would be inherent because the home court actually did acknowledged the montgomery court saying that that it remained has a tent to create more preceding requirements and it was referring to the findings of fact it didn't want to make the actual requirement however the home court still pointed out that miller requires the court to consider youth and its intended circumstances so that states don't sentence a child whose crimes reflect transiently maturity to life without parole and that actually  of the death penalty if they choose to do so and that that's appropriate and then you're nodding so i think you are agree that it says that but then my nd question is and it bothers me that the trial judge said that a five year old would know better than us well when this young man was five he would have known better yes and at his age having just turned fourteen and you use the word barely i don't remember d what it is with an i q of sixty two that sub average intellectual functioning is such that he simply does not have much judgment at all in our society i mean it's not just his youth it's the fact that on top of him he's either depending upon the language or used developmentally disabled or mentally retarded and i don't think the court understood that i think the court understood that there was evidence that somebody said ortiz only got an i q of seventy six to eight and he goes to special ed classes but didn't seem to factor that in to th grader possibly would and that i believe and i don't know if it was clear from the briefing but it was four to six grader at best if making it through high school so we're talking about somebody that you know that if they don't the culpability is very important for miller and this is not this is not but this is somebody that will grow up and he has grown up and he's demonstrated that he's grown up so some of these behaviors when the record brackley states that it's related to his developmental disability and i do your honors before a close quickly want to touch on how it feels ineffectiveness for failing to present a medically evidence because even if this court disagrees with everything we've just discussed the courts have made abundantly clear that  that he was not aware of specific made specifically aware of at the time of the sentencing by counsel saying judge you know the psychological report x y and say what were those things the three things would be the fact that he is borderline intellectual function actually is what made him his af act made him something that you know didn't express remorse at the time which is explicitly what the court found to be an aggravating factor at the sentencing hearing so that actually counteracted that finding it would be the fact that he was there and that the pit specifically said he was easily drawn into peer conflicts and that he would get oppressive went up sat and that that is dealing with the fact that his separation from his findings his mother's mother's mother's testimony that you know he was embarrassed and this was a kid who had you know had a disability and was amongst this group of people and this couldn't have been a matter of trial strategy to not admit that in recitation but i'm not taking issue with that assuming that that's correct judge i don't think the average conduct of a th or th grader is to stop a man that a just met moments before to death if this individual is of and the actual disability which renders him a threat to society you know we are in a sense in judges responsible to protect society from this individual and i think that's the balancing here what the judge was required to do at the time of sentencing is to consider not only his intellectual disability and his attendant characteristics of  but he's also required to look at the seriousness of the crime that this individual committed and the threat that he poses to society by this conduct and we're not talking about a bunch of guys taking deaths car out for a run or stealing his liquor or something of that nature this young man who was proven to have been an estimate or in this crime and i mean by that that he was the st to knock one of his victims off the bike he was the st band to begin stomping on his head whether or not he's encouraged to do so and the evidence was conflicting as to what if any peer pressure his brother may have had upon him but even if there was some peer pressure even if there was some gang or group mentality this is not the conduct of a reasonable individual you know albert th grade th grade or whatever he's not likely to get any better than what he is today this is a life time problem if this is a behavioral disorder or if this is an intellectual malfunction on some kind we are forced to deal with this individual for the rest of his why i think the court very carefully considered what it might mean to society to allow this person back into a i mean it's frightening quite honestly to think that as a means of from what i can gather from the evidence that sentencing they're playing a game of knocking him out where this is just a way of passing time to come upon someone you've never met never have any problem with whatsoever and to stop them and to death and to do it repeated the st time didn't satisfy their lust for whatever they were after they had to do it a nd time and darn near killed that individual too so i and i appreciate it very difficult situation the sentencing court considering the miller factors is i think at least the court has the discretion to consider the miller factors potential for rehabilitation is one of those  is there any indication in the record that the trial court actually considered defendants potential korea bla patients and i'm not asking you to agree that there needed to be expressed expressed consideration of that factor but is there an indication in this record that the trial judge did consider the finance prospects for rehabilitation well that's a very general question judge i appreciate where you're coming from but i think if i carefully review the record again i could probably put together a great many factors that could meet that definition i think th considered his age which is that i think not only it indicative of shallow thinking but also potential for rehabilitation the younger you are the more likely you are to be a rebirth dated i think the court considered as an intellectual disability the court considered or pressured the court consider this family situation all these things i think add together to be a contributing factor toward rehabilitation i think the court considered his conduct while cars rated the court basically considered the p s i i and all the information contained within that which i would argue addresses the rehabilitative potential of this defendant so i think there's numerous elements that the court did consider had in front of it was available but the most important thing the the court was very aware of this very issue it was brought to the court's attention not once but twice in a motion for reconsideration of the sentence and the court looks right at the to case law specifically citing buffer and its you know it of home and saying that i am considering these factors i have read these cases i understand they're directing me to consider d's factors and i have done so you have the sentencing court being very clear with what it has done and i  think it's you know what more can we ask of councilman since last week in her argument she appropriately says that one of the issues in the speech was that the state argued there's no magic words here although according to horman the court at this is in court is required to consider the five factors the court is not required to go into any dissertation or provide any magic language that it has considered these elements in fact i don't haven't found any language that suggests the court specifically has to the numerator the five factors and say that it's considered although the court did so and this sensed by referring to the case law i think it and factors i mean i hear the defendant on appeal repeatedly saying that the court did not consider this or that the record plainly reflects that the court did not consider this and i respectfully quite strongly disagree i  think the record reflects the court did consider all those factors specific and i think the court came to the conclusion although it was not required to the court came to the conclusion that this defendant was in corrigible it could he could not be rehabilitated and you know if we look at it dr jekyll is report which the court i think had available to it which the court heard i think at some point in his progress because i  believe the same sentence in court also heard the motions to move this matter to adult court well was that i'm sorry i thought that you could just stay on that point because i did have a question about that was this the had sent on this case for the pretrial hearings but i don't know how far back that would have gone however i am familiar with dr jekyll port both of them and i don't find them at all the be supportive of defendant's argument here on appeal i think that report is very clear that this defendant poses a risk not only to himself but to a society as a whole dr jekyll identified you call it a personality disorder or whatever you want to call it but indicated that although some people in their forty's and fifty's may overcome these issues there is certainly no guarantee that  and that he cannot say with any certainty whether or not this defendant will never overcome this if there is no treatment for the type of problem that this defendant is suffering with and the defendant poses a risk i don't know can can be greater moved to want to protect society when given that type of testimony from a psychologist who's you know supposed to have the answers and i think the court cases that have dealt with this issue are also pretty clear we just don't have that type of knowledge should this point we can't say with any certainty whether or not individuals who suffer it's just young man does are ever going to develop to where they can control these impulses and become a safe member of society you know this is in courts today are faced with you know intellectually or psychological problems is that individuals suffer with and they're forced to try to make this huge very difficult balancing decision do i let this guy back on the streets to murder and killing again or do i try to protect society from someone who i think poses and will continue for the foreseeable future continue to pose a threat to society and that's what dissidents in court was faced with and i think they considered everything that they were supposed to consider and then some they were required to address in fact i think the illinois and the reason i filed my motion to cite additional authority is because in light of jones versus mississippi i'm concerned of the illinois courts have misinterpreted specifically set aside or overruled if you will by jones versus mississippi it's clear that the opinions in both montgomery and miller are rather narrow corage ability that argument too was rejected by the us supreme court in jumps so there is no requirement now i agree with again i think it was judge connect that suggested courts are free illinois courts are free to add on additional requirements they are i agree with editor patient jones i think that language is clear however i'm wondering it in the light of jones if the illinois supreme court might reinterpret some of it prior precedent regardless as case law stands a scepter new there is no requirement that the court make any on the record explanation there is no magic language suggested in lusby that the trial court must use or pronounced and making sure that it has addressed the five elements and you know the record is clear that the trial court was very much aware of the state story authority the president on this matter and the facts before it and it made a difficult but i think appropriate decision i want to repeat if there is something that i think it's in the form of a question but i don't think that you'll you'll think of it marist me making a statement and maybe there's no answer but one of the things about developmental disability which is the only thing that we know at this point other than the fact that he has had a good life is not the end of it and you'll not only suffer some  at the time of these acts occurred he was impaired and unable to conform to the rules of society he was unable to comprehend in order to adapt to this world he couldn't beat people and yet his later period of time in detention and wherever he's been locked up has shown a degree of improvement he's adapted is behavior so that he's not getting into trouble and i don't minimize getting into trouble with other inmates it's something that's not serious but fighting or arguing over or stealing somebodies socks  commissary would be something that we would be a wouldn't be unexpected for someone that didn't have any mental difficulties so you're right in a way that the retardation or the developmental disability cuts both ways on one hand you give him some slack because he's not functioning at his age level but on the other hand you asked the question that you asked how do we know that he's only he's never going to get any better and i would suggest that there is there are a few things in the record that show as he aged he got better i don't remember the date the officer who worked with him i think in detention who i think wrote to the court or submitted his part sentencing that this guy was kind of a role model and he helped other other people and he did things you would say well ok that's good at isn't pro so again that's a speech i suppose but i understand i can't disagree with a lot of what you said and it does cut both ways but i'd what i'd like it better that the judge seemed to have a better understanding of what it meant to have this developmental disability and i'm not confident that our illinois courts have done enough to educate judges about those issues and particulate sense and i think it becomes a really important murders you know tortures individuals that they have something mentally wrong with them and the problem is i don't think we possess the tools to fix it you know we're dealing with something that we're forced to deal with we don't have the tools to have any assurance that this person isn't going to go out repeat youth actions and that quite frankly scares the daylights out of the public and this is fundamentally that all seventy as compared to an adult offender so we can't we can't just mixed all up vendors together and say that's a criminal mind at work here we do have a very need to juvenile offenders in a court of holeman has indicated you know what criteria or are to be considered with those lower factors again my point would just be that the court did all that it could to address those factors i don't think the court understood that it was required to put it anything more on the record than what it did i don't think that there's any case law out there suggesting that there is any magic language or a requirement that there be an on the record display of what the court thinking you know lest let's be just you know the most recent record case on this issue the court as you pointed out just recites what was on the record what the court could to consider at the time that it's made it it's a sentence and held that it was appropriate and constitutionally met the requirements of know are in the home so i don't mean to to throw up my hands and this defendant is not entitled to the considerations you know that miller and holeman indicate that he is home but i think the record also reflects that he was given those consideration and that if this point you know the court is left with no assurance and i think dr jekyll was pretty clear with what his observations and opinions were as well this defendant's a risk and he's got a i'd just like to start with justice here is his question regarding the judge on the transfiguring the sentencing hearing that is correct the judge there but this is not the same judged on this is judge geisler who was at the sentencing hearing and there was a different judge on the transfer hearing so that's why with respect to the argument regarding ineffective assistance of counsel that it's all the more it was all the more important in this case that that evidence be and made it in a do and then a similar respect counsel testimony and in the reports twice he says that his diet this isn't this diagnosis is guarded so this wasn't an affirmative diagnosis he definitely has anti social personality disorder he's definitely beyond repair and also that context is important because that is that bat was a transfer hearing and that was whether he would be really released at twenty one where here we're deciding whether someone should serve life in prison and at the minimum obviously he was going to serve twenty six years in prison so the wait between the transfer area where he was nineteen and then he could have been released at twenty one versus versus the sentencing here is are two different contacts so we wouldn't actually know you know in the context of that what judge dr jekyll would say and with that regard and with regards to the superintendent justice for an act it was a june two thousand and fourteen letter and i just want to clarify that and in terms of how do we he has improved again the record shows as justice connects very thoughtfully explain that at the time the accident occurred he demonstrated that he was unable to conform to to society means on able to conform to some as you would expect him to do by right of both his youth and his intellectual disability but this later period of time again shows that he has adapted his behavior and he has made in africa so this is this that is what the characteristics of transit immaturity and that's just seems to be the what exactly what this case demonstrates so in any event just one moment here and there it's and i believe that that's implicit finding as to mitigating circumstances and i'm looking up the language here minutes that exactly what jones says you don't need i'm on the record sentencing explanation or an implicit finding regarding the relevant mitigating circumstances so that's the chair he said that's that's what we're dealing with not here and yet we don't have an illinois supreme court case saying that the sentencing judge has to state explicitly that it is consider the miller factors or explicitly well because your honor and i point out that jones actually in fact in stating that all settle footnote two of the majority's opinion actually acknowledges the montgomery court statement that that miller did not impose a formal factual ending requirement not leave the states free to sentence a child whose crimes reflects transiently maturity to life without parole so with the british in connection to the fact that the they were not required to list the factors i'm not suggesting that they necessarily are i'm only merely suggesting that in this case and this particular case given the overwhelming amount of demonstrated rehabilitative potential a mandatory factor under illinois law the courts statements that we don't believe what the trial court said both in the sentencing hearing and no your honor that that is not what i'm suggesting i guess and i'm suggesting that the court appeared to misunderstand what miller stood for and what miller and as as codified in illinois it requires a understood didn't understand what miller said why do you use the words irreparable corruption and why did it refer to characteristics of your art it may have read those specifically but i'm just i'm describing an risk in terms of his potential for rehabilitation that that that wasn't considered and that there was demonstrated considered potential for rehabilitation in this case ok good arguments we appreciate that it will take this matter under advisement thank you