may please the court tacky peacock who is now forty one years old was sentenced to an eighty year prison sentence when he was only seventeen years old for st degree murder under unaccountability theory denied and he's now asking this court to reverse the circuit court's decision because his request has shown that there is cause and that there is projects as is required for success of post conviction fish and even if before we get to the real issue about what this for your senses we recently held another case which cited that cause and prejudice was that case where the sentence was fifty but it was not an interpretation of the buffer decision that the question of the th amendment the state does not contend that the court failed i know that the court didn't fail or that the court considered what we now refer to as the miller factor is when sentencing  but why don't you like playing them oh yes your honor so what the supreme court did involve her was really run on what the legislature now considers to be a not for a life sentence for a juvenile well that's what the court the supreme court concluded they said that they were going to look at the legislature and they said that it was their opinion that the legislature had determined that what would be mandatory life for an is the same as mandatory life for an adult yes your honor i believe that if you follow that logic i would the conclusion the logical conclusion here is that a forty years and tens is the equivalent of a natural life sentence for if if a person who's under eighteen should commit murder of a police officer that at sentencing that the court shell impose a minimum of forty years yes that is correct honor so if we're looking out what the legislature is telling us is the equivalent of a natural life sentence for a juvenile what we the answer to that question is at a minimum forty years right so forty to get forty years right that is correct his sentence is eight years and i just see if everything breaks his way well if everything breaks this way the minimum that he would be serving in present would be forty years but we obviously not everything is going to break his way or we cannot guarantee that everything is going to break his way in fact it's very easy to lose day for day credit and it's in you can lose day for day credit at the discretion of the director of the department of corrections which means sad it is i mean let the courts really have no no impact at all in sentencing which is kind of like i don't know that that's really something we should ever concern ourselves with whether some other department should have any any influence whatsoever over an actual sentence because of the end of the day it's court or the judge that sentence that person in this case the judge  analysis of looking at what the expected date for release is for the defendant and said let's look at the sentence and i think if we look at the sentence here what the judge actually imposed is eighty years well you know interestingly about this case e somehow he was given fifteen days of good time but right well your honor well i did see i did it showing that somehow he got some credit recently i'm not sure how that happened but then that would actually take this case out of the forty years would if we relied on well i would say no because i think that this court should focus on the sentence that was imposed which was eighty years yes but and not and but even i'm sorry your honor turned out if you decided that the the idea that it could change means it could change in other ways well that is correct and that's when i was a kid we really be concerning ourselves with the department of corrections that yes apparently the power to change sentences in then enhanced them is that kind of thing that we're relying on when we were interpreting something so significant as a possible life sentence for me and or an offender that's right your honor i think that the fact that i'm today we do not know when taki will be released from prison or what his sentence will actually be  which went on one and the courts said we're going to look at what the legislature determined they said that any minimum a life sentence would be four years and then later they say we're going to war and so forty years and less is not a well certainly it's not so great baby race but it's safe to say that it's around the forty year mark whether it's  have this whole case in this this maybe forty maybe forty or less yes and tacky peacock almost twenty years l at this sentence at the very least and so we know that the pardon of correction somehow changed the date to an earlier date recently we don't know what's going to happen in the next twenty years so as your honor sad it is it would be very difficult to focus on what the department of corrections will or will not do with respect to sentence in order to determine that in fact that there is the possibility that he is going to be serving a non constitutional sentence  on what what the scent on the sentence that was imposed and not on well what age is this person going to be released and is this going to be a geriatric police that's not going to provide meaningful opportunity for him to be a successful member of hope and even if this court were to consider the state for take credit i think that under the circumstances of this case this court should also consider the three year mandatory supervised release this part of his sent not because the supreme court has said that in the context of his conviction the context of the post conviction that the three year mandatory release is part of the sentence the defendant is still in custody and under the supervision of the department of corrections but also because if he violates any terms of his mandatory supervised release even if he got out exactly after forty years he would then be serving a non constant sentence so i think that another way to look at this case if your honour's decide to consider the day for day credit is to think about it not as a forty year sentence but at least a forty three year and i think it's also important to note that the rules of the department of correction some some of them are very minor you can you can be violated from very minor infractions and so the fact that you have been  because if we think about what the proper court has now told us a natural life sentence is for a jury in this case he was sentenced to a maximum sentence without court said that it was considering the factors in occupational mitigation and it did not mention takis age which is subject to the court mentioned that he had free will and that he had made this choice and that he had he had to take responsibility for the contact during the course of this whole incident is that the words of the court even though the actual shooter was his codefendant who was eight years  and i think that this deviate with what we now understand is the mind of a seventeen year old boy a seventeen year old boy has diminished culpability has lack of maturity  as an undeveloped sense of responsibility has limited control of his environment and has an inability to extricate himself from a crime producing environment what about the possibility of  yes and moving on to that not only did the court not consider his age but it didn't consider his potential for rehabilitation which obviously his age has a lot to do with  mitigation the court only consider two things the court considered that he didn't have a criminal record and that his crime was facilitated by someone else because he was convicted under an accountability theory and it didn't take into consideration obviously his age you know everything that we now know about brain development goals they were never mentioned here that he was correct during sentencing the code was informed that he was seventeen years old but the court said i'm going to go through our permitting factors and go through mitigating factors and never once mentioned you know this is eleven years old yes and you know there were other factors that the court didn't consider for example that he was he had a substance abuse problem since the age of twelve importantly that his codefendant was twenty five years old was eight years his senior and if you read takis confession to the police carefully you will see that it's in fact a lot of the acts that he committed were add the direction of this twenty five year old adult and also about in his confession chuckie states that there his intent at that point to how this crime began it was a robbery the or you know that this is not a serious offense but i think that his behavior in this case is very linked to his age and we can see that in his confession when his telling when he's telling the police that he didn't know that they were going to kill this man he realized that they were going to kill this man while they were on their way to this forest preserve that he wasn't the one who fired the st shot that killed the victim that he was directed by his codefend fire the gun and it actually didn't hit the fact so these are all mitigating factors and these are circumstances that are surrounding this offense that were not considered by the court when it imposed what we now know is a maximum sentence for a juvenile we know that our understanding of what shocks the conscience or what is fair and just in sentencing has evolved now we require courts to consider all of these factors when sentencing a juvenile numerous factors that have to do with the juveniles we now know well our boss has changed without somebody who has committed an offense under the age of twenty  honor especially because we would know until he has completed an unconstitutional sentence and then i think that i would be completely unworkable for him to say oh well it's past forty i think i've released if they are more favorable to him or her bright as opposed to what was in place when he was originally sentenced yes there would be a new sentencing date and a new sentencing order so he would he would potentially get maybe not yes or other but is there a line is there really a line well the court held that a prison sentence of forty years or less imposed on a juvenile offender does not constitute a defacto life sentence in violation of the th amendment so we we certainly know that anything under forty years is not a de facto life sentence and we certainly know that it didn't be say in so many words that the sat is that was this mandatory for a person under eighteen who would shoot a police officer and like to do that that sense is the same as a mandatory life sentence for an adult w the court interpreted general assembly as feeling that if they could impose a mandatory sentence of forty years for a juvenile that commits a certain category of murderers you know then it would be the general assembly's opinion that that does not constitute a de facto life sentence and correct yes that's correct and isn't that sentence a minimum of forty years that's correct so if you actually compared mandatory life to a minimum of forty years set forth in the new statute so under my scenario does the judge have to give it a minimum of forty years and if that person is found guilty of committing that under is not yes it's it's the holding is unambiguous it's plain it's obvious and yes you know some people might wonder well how did the supreme court see if it was exactly a th in forty years and one minute well we know that in the case of paterson the illinois supreme court in considering whether to defend it sentence was a de facto life sentence he was sentenced to a total of thirty six years but the door supreme court considered the fact that he was required to serve at least eighty five percent so they actually looked at the thirty years and seven months and other cases from illinois or the st district and have been said lopez they've also considered that the defendant was eligible for accused and nothing nothing should be taken by intendment or implication beyond the obvious or literal meaning of the stay then accurate statement of law his behavior and right now he's doing everything that he should be doing and there's no reason to believe that he is not going to get a lot more to terry's getting his credit and if for some don't think there's any ambiguity in that decision as together and in a case like this no because they stated forty years or less is not a a fact a life sentence years or less impose our juvenile provide some meaningful opportunity to obtain release all right based on demonstrated maturity and rehabilitation so should we take a chance with this case because you say he's that requires a minimum of forty years so this is that the case that was before them this was the case of someone either i'm lying or over the line and whether or not we should wait for twenty years to see i sentence under home and you can look at the cold record and look at the sentencing hearing and in this case if you look at the sentencing hearing the sentencing court did everything required by miller it's a l sentencing hearing it's sixty pages approximately in length and the court considered the pretrial investigation report or considered all the aggravation all they're going to pump you for nd what about conses argument that the age defendant's age that he was seventeen years old and we know that because the friend's cousin testified at the sentencing hearing the defendant's mother testified at that sentencing hearing the defendant's father testified at the sentencing hearing and during their testimony these are three people who knew the defendant the best they talked about his childhood they talked about his teenage years and for the most part they spoke about his years in a positive sense and even defended he he stated in in a pre sentence investigation that there is no child neglect no abuse yes he did supervised but if you look at the case aren't there cases that say that mandatory supervised release is essentially the same as a society yes but that's fueling it from a different context three years up online well again unbuffered the supreme court has provided this court with guidance in that case the defendant had a sentence of a total of fifty determined that a minimum of forty years was the same thing as mandatory life and some people might find it not fair if someone falls a day short or a day over but look at it look at the sex crime yes it's if this when it comes to a sentence that is under forty years or exactly forty years where a defendant is eligible for release the supreme court clearly states in that case that it's their whole being that a prison sentence of forty years or less provide some meaning for her to negi for the defendant to obtain release and in this case but if the defense force forty years and a couple of hours that doesn't really give them a meaningful opportunity have been eighteen years old in two days or but the criminal was full of bright lines where a line has to be set or  in this case because the defendant is eligible for release said after serving forty years and that's what this court should look at eligibility for release the earliest possible release da job so should we be deciding this based on the whim or whatever of someone or some department that actually has nothing to do with  there's no reason there's absolutely nothing in the record indicating that defendant is not going to be entitled to all the good time credit that is in title two there's no reason to believe that he will not receive that credit and for this court to speculate is inappropriate because if that was the case in the case of patterson when the illinois supreme court was looking at defendant's sentence they wouldn't have considered the fact that he was required to serve eighty five years they would have just looked at the total thirty six  they would have said well how do we know he's going to get that fifteen percent good time credit he's entitled to that's not what they did they look at they subtracted that fifteen percent that he was entitled to in considering whether or not his sentence was a de facto life sentence so if we have the supreme court of illinois subtracting the constituted a de facto life sentence then my argument would be different then i would be arguing under homing that this court should look at the hold record and when you look at the record it indicates that the court did consider where defendant was a mere lookout or he somehow was in the wrong place at the wrong time didn't have much time to think about what he was doing at this case this is really about whether there's a clear line of demarcation so that this wanted his car they wanted his money they committed a carjacking in his garage he found it was a driver they held him at gunpoint and then they took him for a long drive this was not  i'm in response to your defense counsel's argument about the proportional penalty because this is not a situation not a nd set shocks the moral sense of the community at all and i would just add that he could have been sentenced to natural life the trial judge sentencing judge considered defendant's youth and tenant characteristics and the fact that this sentencing judge imposed a sentence that was far below the minimum the maximum i'm sorry where he would be eligible for release after forty years in the cade said that the sentencing judge considered a defendant's potential yes but my position that set the court already did this the court already did everything that miller requires even though no it wasn't in effect at the time when you look at the cole record the court did under offer but but nevertheless the record indicates that the defendant did receive an individualized nd hearing and the trial court did consider his use and pen and characteristics so basically did trial sentence in court did everything that miller requires in this case and but at the same time the court couldn't ignore the brutal and heinous conduct here this victim was sixty years old he was a successful businessman he had a family these are all factors that the court had to consider and in the court did gi defendant a significant break the court could have legally sentenced him to natural life the court didn't do that the court considered his you considered the court wanted to give the defendant an opportunity for release at the age of fifty seven dollars so that he could be rejoin the community credit he said that nothing tells us that he's not going to receive the entire credit but at the same time nothing tells us that he's not going to receive the credit and i just want to point out some of the a minor offenses that could lead to him losing credit and have nothing to do with his rehabilitative potential and maybe even committed in an innocuous way for example insolence is one of these miners or minor infractions which means tough talking touching gesturing or other behavior that harasses annoys or shows disrespect i mean this could be done without even intending it to be so and a person may lose up to three months of good time for committing th there is a possibility he may lose good time credit he has twenty years to lose the time credit and this court should not base their decision on speculation as to what that will be i would also like to address the circulars argument regarding whether or not the sentencing hearing complied with the miller requirements st i would say that that was not part of their argument in their original  briefs and i believe it has been forfeited but even if it hadn't i think that this case is very different from the case in home and the sentencing hearing here was was quite lengthy and there were numerous people that testified on behalf of tacky peacock but in people versus home men there was additional information that was consider for the court there were three psychiatric reports that were provided to the court  very importantly the p s i i report stated that the defendant had no pretty election for rehabilitation based on their conversations with it and case and the court specifically found specifically psychological reports available there was no recommendation made by the pre sentence reports stating that he could not be rehabilitated the the court did not find that he could not be rehabilitated and i will reiterate that the court findings and what the court actually expressed during the sentencing hearing is that it's deviates from what we know juveniles my how we know juvenile minds work and how his participation in this crime was in great part done because of his young age and because he was not did not have the maturity or the responsibility to understand the consequences of his act and those oh and i and i would also like to point out that in people versus suffer the court considered many things other p s i report aggravation mitigation potential substance abuse issues treatment and potential for rehabilitation alternative sentencing the court stated all of this on the record and that was not sufficient that was not a sufficient sentencing hearing under miller and for those reasons i would ask that you reverse