it please the court before i begin maine please reserve three minutes for a bottle thank you your honor is nicholas was a fifteen year old high school freshman when the police arrested him interrogated him and charged him with first degree murder and attempted murder he was automatically transferred to adult court and he is now serving a sentence is severe is any adult in illinois the equivalent of natural life the united states supreme court has held the children are to focus on issues one in two in the briefs pertaining to interrogation and sentencing but i'm of course have to answer questions on the transfer issues as well turning to the interrogation issue it is well settled that police are required to exercise the greatest care things first they denied nicholas's father access to him during the interrogation second they gave nicholas his mother no access to him before the questioning began and no opportunity to speak with him alone counsel who's the a custodial parent here you're the legal term custodial there's actually probably both but he lived with his mother the so sure the custodial parent where there's probably no definition of actual no determination of actual custody because both parents were still married and so likely there was no legal determination but she was the mother who nicholas lived primarily with his mother what we know from the record is that the father was actively involved in his life the father was the first person that the older son called us when nicholas with the rest of the father mediately left work and tried to come first the home and then to the station so we know that he certainly played a significant role in life but he but nicholas lived primarily with his mother  when the father speaking of the father when he came to the police station the unrebutted evidence is that he was denied access to nicholas for the entire day and the entire time he remained at the station the police introduced are the state introduced no testimony to rebut that evidence and the court found that made the determination that the father did not need to be president no illinois court has sanctioned denying a biological father access to a child during interrogation so are the rest of us just to consider the issue of whether the biological father was denied access to the defendant or the parents in total parents in total i a said it's certainly a totality of the circumstances analysis but a key factor in that is that the father was completely denied access and this is this is the first case to in illinois i believe to address this kind of situation where one parent was permitted access and the other affirmative but there is no reason to believe that it will that what the lower courts upheld is that the presumption is that a confession is in balance very if a parent is denied access to the child and that presumption should apply in this case that's a longstanding presented mr santos testified that is the desk officers he was not even allowed upstairs to where the interrogation was taking place was the best customers in the lobby who kept telling him no you can't go out but at the end the instructor case on that point is people versus brown your honor to be totally frank murdoch has language favoring both sides in this case murdoch didn't my question doesn't indicate that what the court needs to look at the trial court is the totality of the circumstances  particularly whether or not if the pound is not allowed to come in during interrogation is whether or not it's juveniles who have been on the trouble understanding what's going on during interrogation i believe what your honor is referencing is the language that says  no affirmative indication one way or another nyquist said and that defendant in the previous history with a criminal justice system none whatsoever your honor he was fifteen years old you never so much as been arrested let alone been to a police station and he did say he understood the miranda rights he was never told the officers never made any effort to explain them more thoroughly to explain what it meant to be charged as an adult they admitted they never told him what sentence he could possibly face and as your honour's are aware this is prior to video interrogation and so unlike the court in murdock we don't have the benefit of that in this case we don't know how he appeared so to get back you or your honour's question there is not affirmative indication that he absolutely did not understand but there are certainly some evidence suggesting he may not have the two forensic psychologists who examines miranda and here we basically have an absence of evidence and so yes it would be ideal if there was some evidence but that's the state's burden and they psychologists testified they didn't know whether he would have understand miranda and the detectives  admitted it's a mixed bag the detectives admitted they did give him miranda rights they said that and he said he understood but they know if they didn't make any effort to explain them they didn't ask nicholas to say to a repeat of the rights or say what he thought they meant they didn't explain what it meant to be charged as an adult so there's a lot they failed to do here and that it's not just this one thing it's the totality as your honor pointed out this is the totality of the circumstances and we do we have a child who's never been in his no contact with the police system at all he's held for twenty three hours which the court in murdoch said that seven hours is a lengthy time for a sixteen year old here it's twenty three hours and no he was not interrogated terribly long at any point ascertain whether the child wants to speak with the parents and get them and this is critical an opportunity to speak with him before questioning and that is across the board every case that speaks to you about there is uses the term prior to questioning the whole point of a concerned adult whether it be a parent or a youth officer is not just that someone sits there and makes the child feel comfortable but that he they ascertain whether the child should actually waive  know at that point in time then they they contacted his family correct his uncle who then reached out to the other family members to make sure that they're right and then we got to draw pictures of the interrogation didn't start just once the officer or the parents went there right your honor we do that at two thirty am necklace said he was seventeen and that just speaks to his lack of sophistication that he somehow thought it would be better for him to appear older so we are not faulting the police for not calling the police at two thirty am that's his fault however it's six am when the first interrogation happened the unrebutted evidence from nicholas his mother is that she arrived before that and she asked to speak with nicholas before the questioning began in the police said no they said wait so later they did bring her up when the questioning began and admittedly she was there for every interrogation after that but they did not give her an opportunity to speak with them beforehand and that's crucial in people versus make danielle this court said the police cannot deny a parent's access to a child before questioning people versus griffin people versus knox it's that's not a disputed point the parent must be allowed access before the questioning and there is no evidence that that happens and it's not just the mom saying that the detectives admitted we didn't give her access beforehand the youth officer emitted i didn't even ask if the mom wanted to speak with nicholas or if nicholas wanted to speak with his mom supreme court drastically shifted the legal landscape of sentencing for children and it held that that mandatory life sentence for a child is per se unconstitutional it also held that a discretionary  rare and uncommon and imposed only on the most in corrigible child offenders accountability theory was no life without parole based on countability theory no like in this situation here with two answers to that your honor one of the cases was accountability and miller and one was not so the court in no way limited if sold into accountability i believe it was control jackson the companion case that was accountable only difference between nicholas and the children and miller as that here he received a term of years sentence which is the functional equivalent of natural life rather than an actual natural life sentence illinois no court in illinois as and wasn't there's no mandatory allum that's kind of an interesting question your honor our position would be that the mandatory minimum was fifty one years the state's position is actually that the mandatory minimum was eighty five the clearly believed it was in fact at the minimum was fifty one and so your honor is correct that the court the court imposed a sentence above what well above what it believed was the minimum but the court didn't have the guidance of miller when it imposed that sentence it didn't have the united states supreme court saying the trial court if a recent insane were to happen additionally it illinois has not yet addressed a defacto life sentence but it but other courts have california the supreme court the iowa supreme court and all the term of your sentences even when aggregate even when consecutive and involving multiple offenses are unconstitutional under miller and in state versus know which is the iowa supreme court's recent decision that involved just fifty two year sentence so very similar to the fifty one year mandatory minimum in nicholas this case and it does i was supreme court said that fifty two years is unconstitutional under miller sixteen year old offender and in all the iowa case what the court said is that the prospect of geriatrics release is not sufficient that's not what miller had in mind when miller said children are categor less culpable it meant that they must have an opportunity a meaningful opportunity to quote the course for release nicholas has no meaningful opportunity for release and even if this court looks beyond the simple holding involved with police what the circumstances are of the offense are whether the child has any possibility for rehabilitation whether and they said that adolescents are so specifically less culpable because they're more likely to be impulsive to take risks and to try to impress their peers that's exactly that's virtually that definition of nicholas's case he was a fifteen year old he had no experience with the law no criminal history or juvenile history and according to the state's evidence even taking it completely as true nicholas went along with his older eighteen year old codefendant because he wanted to impress jonathan pena jonathan pena was a gang member nicholas was not jonathan came up with the idea nicholas did not jonathan provided the gun nicholas did not have a gun and he did it because he wanted to look tough that is exactly what miller is talking about when it says children should not as close i terrible thing there's no dispute that but it doesn't mean that this child isn't corrigible and there is frankly no evidence in this case to suggest that he could not be rehabilitated what about people  as if he was an adult we're not asking this court to ignore the reality of the terrible offense that occurred but we are asking as it must under miller so look at whether nicholas has the potential to be rehabilitated and whether he should be afforded that opportunity at some point didn't have the supreme court opinion saying this is what you need to look at and so she looked at in the factors the same way you would an adult she looked at she balanced the seriousness of the offense presumably with the potential for rehabilitation and she came out on the side of saying this is a very serious offense and he should be punished for it but she treated him like an adult in that sense and that's what she can't do your honor is in it the opening brief which was filed before miller nicholas simply requested the relief of reduction of sentence because miller was filed and because it because miller was decided after the opening brief and because miller so drastically shifted the sentencing landscape for children supreme court in people versus paterson which will be addressing arguments such as whether mandatory consecutive sentencing is appropriate for children whether the mandatory firearm enhanced ments are appropriate for children with things discretion was the sentence was imposed but yes your honor we are arguing now but it's different than a standard abuse of discretion argument because the law has changed since then and so we are asking this court guardians an abuse of discretion it right here it is your honor we would invite discord to apply to nova review because it involves a matter of law that the court had no access to when it imposed the sentence and so we would ask this court court did state on the record that it was considering his age and so we're not contesting that point it did state that it considered his age it heard sentencing arguments it didn't deny the parties the right to argue or anything like that but it did not make thorough finding as as to the circumstances of the offense the rehabilitative potential of nicholas the things that miller is telling course it must consider right now other people resist going tonneau i believe the court doesn't have to go into great the problem is that the court didn't can it could it consider it's not it's not even the sentencing court's fault it could it consider the appropriate factors because it wasn't told to do that under miller thank you thank of the confession his mother the custodial parent and a youth officer the fact the defendant's father may or may not have been in the police station asking to have access to the interview room really is relevant because on point with regards to where you have a situation we have two parents present and only one is allowed into the turkish will no there isn't absolutely not again it was that there's a concerned adult there and the mother was there all  cases the council speaks about deal with where there's a parent in the police station but no parent in the interrogation room the youth officer who was in the interrogation room was actually actively investigating the case about which they were talking in this case you thoughts are was not involved in the investigation of this case the mother was in the room the mother was given access to the defendant the mother was given the opportunity can purchase student sees that opportunity they didn't need to spell it out hey you might want to go over the side and talk to your son about this and you can tell that they gave her the opportunity confirm when she wanted to because the time they asked defendant whether he wanted to give the videotaped statement she interjected and said i'm not comfortable with that they said would you like to confer with him and they gave her the opportunity they conferred and at the end of that they told the officer that they were going to leave it as the oral statement so they absolutely did honor her right to confer with him when she wanted that happen so it was a matter of credibility and then the judge clearly didn't accept what she was saying but counsel did raise the issue that there was a period of time i believe it was an hour from one point when the mother arrived at station before she was able to talk to the defendant what is the record indicate as to why there was a an hour gap between the point i was she arrived at the station into which she was allowed into the kitchen if it doesn't indicate any reason why all it does indicate is that before the six am conversation started she was in the room she was present when miranda started she had the opportunity to speak to him at that time or stop anything if she wanted to only be considered by this court if there was some evidence of misunderstanding or not understanding what was going on in television or some confusion yes the concerned adult requirement is there so that you can ensure the voluntariness of this compassion that he understood what was going on it wasn't ignorance it wasn't right it wasn't the product of a fantasy and it's only one factor in the  circumstances we have cases where there is no concern adult in the roman in the voluntariness of the statement is up help and that is perhaps what murdoch is speaking to that yes it's an important factor but it doesn't mean that the know who the victims were or the potential defendants or the facts of the case in that respect where she was interviewing people are putting people in line up where the other cases when they speak about a youth officer being and actively involved in the investigation therefore not acting as you thoughts are it's because they were trying to gather evidence against the youthful offender in this case she wasn't trying to gather any evidence against him she was there to make sure that the statement was voluntary that was her only role in the world so she was actively involved in nat respect for his indication that he was confused in any way whatsoever after having presented the evidence that the preponderance of the evidence standard by the people with mack the burden shifted to defendant at that point it doesn't stay with the people all the way through one  meet that standard it shifted the defendant and he didn't present any evidence that he didn't understand them or he couldn't understand or he didn't know what they were and so therefore there was a knowing in intelligent waiver that the and it's proved that in this now as to the sentencing issue the united states supreme court in miller versus alabama stated that mandatory life sentences for youthful offenders are unconstitutional because you didn't consider their age you need to consider their age that's what they stated think never stated that natural life sentences are always on acceptable they did not state that in any way shape or form they stated you need to consider the age you need to consider the facts of the crime and that is what the judge did in this case she considered his age repeatedly she stated and we need to in the absence of any evidence to the contrary presume that she considered all of those factors in the pre sentence investigation report she saw the parents in the court room they testified about their relationship with him she knew about his criminal history she presided over the trial and the facts of the case she made a comment about how he may have been young but he wasn't so young that he wasn't capable based sam what she had seen during the course of the trial that he wasn't capable of making its own decisions so there's were a lot of circumstances that she considered before she sentences to panic and she was aware of his age and she could have given him twenty years court case wanted it to do it wanted these courts to consider the age of the youthful kinder and she did that affirmatively in this case there was a motion to reconsider the sentence and in that written  motion counsel cited the ripper case which was the beginning of all of these youthful offender sentencing cases and referred to the fact that he was useful offender and that he wasn't as mature or responsible as someone who is older and the court considered all of those very same arguments that are being made here at that motion to reconsider and still sad this is an appropriate sentence given the crime that because that they're simply just too young and it's the exact same arguments that then went into the graham case and then went into the miller case very same thing they're just extending it to a different situation they made it very clear that natural life in prison for youthful offender can be appropriate in certain circumstances they just wanted the age to be considered and the circumstances of the crime to be considered and that was what was done in this case as for the eye or with supreme court the case of not all the courts have never cocked about the united states supreme court has never spoken about nor did the no case talk about a meaningful opportunity for release the focus is did you consider his age did you consider what he did during the course of the crime did you consider all the circumstances in fact in the no case they stated not in the supreme court that court has said in these cases suggest trial courts are not to consider protecting public safety in appropriate those circumstances first the court heard all of that evidence trying the course of the trial and at sentencing the court made the comment i understand that you're fifteen but given the facts of this case you were capable of making your own decisions so the court to consider all of that or considered again an age of will and what but he could make his own decisions that that because of his age well no given who he was given who she observed during the course of the trial given the evidence that she was get that she was presented with she considered those facts were before the court she was acutely aware of them she did not reject them she did not ignore them she made no comment on the record about them either the court isn't required to make comment on everything that she's considering and coming up with this should consider the seriousness of the crime she considered that she that the defendant could make his own decisions so in that respect she did consider that and just because she didn't weigh those factors the way that defense counsel might like them to be weighed well perhaps even a brief you court might like them to be weighed she did weigh  that and absent some abuse of discretion that you can find that that has to stand as who has to show us that she when she did she was presented with the evidence it's presumed that she considered the evidence not and that then would be the defendant who would have to come up with that and send a showing that she did not consider all of the prevalent irrelevant factors that were before her it is presumed that she considered th witnessed the defendant she witnessed the sentencing hearing she was presented with that very same argument during the course of the trial she heard his confession presenting that very same evidence during the course of the trial she weighed vs alabama simply doesn't apply here because number one is not a mandatory life sentence number two it wasn't a mandatory sentencing situation and number three miller who wanted the courts to consider  associated with that evidence was presented to the court during the course of the trial she was at the sentencing hearing i i don't know that i don't know that but she did you have knowledge of that fact it was part of  his confession that was presented to the court she had that information and gang history would have read that and think it was there there would have been something in there if he answered the questions i can't remember off the top of my have whether he answered th requested to amend that indictment to indicate that william grassy or grassy was a police officer performing his official duties and the court denied that request even though there was no i that request because it was prior to jury selection they went to trial he was convicted of the attempt murder but he was also convicted of the ever of a to discharge of a weapon in the direction of a police officer as executing his official dut if it were a regular attempt murder without a gun even though there was a jury finding on those elements consecutive consecutive yes mother testified she was denied access and the opposing counsel answered that the state's witnesses denied that in the trial court made a credibility finding in their favor that is inaccurate the a s a and the officers both the detectives testified that they did not know whether the mother was there beforehand so they as and said it wasn't me to deny her access but they never testified that she was not denied access and as we know it could easily  target we're not contending it was that was a disputed point and we're not contending it was the state also said that the officers are not required to spell it out for the mother as to whether she wanted to speak with it that's actually contrary to case law in people versus murder and in in re j o the court held that the burden is on the police specifically the youth officer to ask the parents if she wants to speak with her child and detective musial admitted she did not ever it provided in the opening brief in that you're also asked whether both parents are required to be present and it we've admitted that's an open question in illinois however in murdock this court said that parents plural the police are required to inform the juveniles parents use the plural in mcdaniel this court use the plural and said that if the parents indicate interest in speaking to their child they should be allowed to do so and in j j c the second district court said that the parents guardians and concerned adults all have the right to be present and to speak with the child before questioning turning to the sentencing issue miller is not just about age and it's not limited to mandatory life sentences that was the specific mandatory life sentence with the specific factual scenario but miller talked at length about the circumstances of adolescence not just the fact of a child's age in this the illinois supreme court has extended miller all the way to the context of whether a minor has a right to an abortion without the parents without the parents notification that's an in hope clinic versus flores and the illinois that's a totally different context outside of sentencing off together supreme as to your honors justice holds question as to whether we presume that the trial court considered the appropriate factors we don't presume that we should this court should not presume that the court considered the appropriate factors when it was not even told what factors to consider that might work if miller had been decided beforehand and the trial court had been aware of it but it wasn't it was decided afterwards and this court should not assume that the trial court had was able to predicts the future about what the united states supreme court would say are appropriate considerations and necessary considerations for sentencing lastly your honour's we would ask this court's permission to cite as additional authority a case decided just two days ago which i don't want to discuss with i don't think i would be fair to opposing counsel but the supreme court of the virgin islands just issued a decision specifically dictating to trial courts what factors they must consider pursuant to miller when