has thank you counsel and for the absolutely look now gentlemen we are starting late because we had technical difficulties you know our ten o'clock argument regarding connectivity to the internet and some of the problems you may have faced you know there are large humans i don't know i think my internet caused the problems you may p thank you your honors may please the court and my name is christopher coke has and i represent the defendant richard cortez this appeal comes from the summary dismissal of richard cortez its st stage post conviction petition be issued before this court is whether court has has stated an arguable name of an as applied transfer to tional challenge to his life sentence where he was only eighteen years old at the time  and his personal characteristics resemble those of a juvenile so much so that a sentence that forswears the possibility of rehabilitation would be unconstitutional because cortez needs that low standard this court should reverse the summary dismissal of his petition and grant him the opportunity to develop his claim in the manner expressly encouraged by the illinois supreme court in harris turning to the facts supporting miller versus alabama factors rendering it at least arguable that his development was similar to that of a juvenile at the time of the offense cortez was only eighteen years old and we now know that the juvenile brain research that animated miller the whole line of cases applies beyond the age of eighteen well into a person's mid twenty's so so cortez being just over the age of adulthood is an important fact he had no criminal background whatsoever when he was growing up there was abuse in his home his parents had gotten divorced cortez and moved from arizona to champagne and so a lot of that cause difficulties his life throughout school he had a reading disability and he took special education courses there was i'm just you know testimony from the psychiatrist that at the time of the offense he was under the extreme influence of that disorder and it's really significant that the psychiatrist who evaluated cortez did so as an adolescent treating him as an adolescent there's also i just view testimony from the drug addictions counselor that cortez had abused drugs and alcohol as a minor and his counselor estimated cortez's emotional development as that of a fourteen or fifteen year old at the same time there were signs of that he could be rehabilitated he worked at a grocery store or he was trusted with great sums of money there was a teacher who testified at the hearing  that cortez could succeed in school if given the opportunity there was a jail administrator who said in the lead up to the sentencing hearing chris has had just as well to incarceration so based on these facts  of the the the youthful characteristics that should be applied in this case why shouldn't we also look at the the remainder of miller which deals more with the sentencing hearing and whether or not the trial court found defendant to be without rehabilitative potential why can't we look at that now as well if this court looks at applied to his case it's appropriate to send the case back for development on that issue but doesn't and and have to establish both of those factors in order to obtain relief  will have to make that showing yes if you look at it the st district's decisions in johnston in ruiz they break those two inquiries apart and say that the defendant st has to make this initial showing and only bat and make that determination whether or not it was miller compliant for or not well we should look at the court's findings at sentencing and those really negate any conclusion that the court gave adequate time said that the case was so brutal and heinous that it would impose natural life under that factor the court didn't mention cortez's young age the court didn't mention any of the mitigating evidence that i spoke to at the outset of this argument so i think it would be very difficult to say that a case that occurred in one thousand nine hundred and ninety really trav court you know mentioned none of this evidence that the court gave at the kind of consideration that we would now require under miller unfortunate that you know looking at the case law that's developed over the last year or two since harris a number of these cases have been sent back to the trial court on successive post conviction so defendants there ha least arguable that he had the brain of a juvenile and such that the lessons would be improper and that's why it would be the correct remedy to send this back down to the trial for further development  is it the case that counsel defense counsel argued that the trial court made a mistake by saying you were wrong to say you has no rehabilitate potential the court rejected that i mean it indicates that's one of the things that he did consider and inherent in that rehabilitative potential is the notion that no this crime is too serious it was too awful it was too heinous and it was premeditated it wasn't just being impetuous from looking at  trial attorney did make those arguments the trial court didn't comment upon them at all but i think it's hard to say that the trial court gave them the adequate consideration that we would now require under miller and if you look at again the recent cases addressing similar issues there are going to a lot of really really terrible crimes and defendants are still allowed to pursue these as applied challenges if you look at just like franklin that was of a six month old child daniels was a woman who had been dragged into the bushes in a park sexually assaulted violently so i mean these are all going to be  at crimes and so what's important is what the defendant has the opportunity to show that he has the potential for rehabilitation such that even though this was a bad crime a life sentence would be improper and that's the case with you know the cases i spoke of and just this whole miller line of cases these defendants who are sentenced to natural life are often convicted of terrible crimes but as the court said in miller and again in montgomery even defendants who commit heinous crimes can still you know become a productive member of society and it would be improper to at the outset say that they're incapable of rehabilitation that's the whole premise of miller and that line of cases i guess that goes to one of the things that the state argued in its brief that there is some sort of intransigence eve in cortez's argument that this was an immature crime and yet has the potential for rehabilitation but that's the whole point of miller in those lines of shit in that line of cases is that you know juveniles have an under developed brain they're prone to risk taking their impulsive  reckless and so they can commit these terrible crimes and yet those characteristics are not permanent juveniles can grow and become young productive members of society so there's nothing the state also points out really emphasizes throughout its brief the fact that court has hasn't taken responsibility for this crime frankly i think that's an absurd argument considering the court has was arrested and immediately cooperated with police even accompanied them back to the crime scene if you short months after being charged he pled guilty and open plea to st degree murder knowing that the death penalty was on the table and he's consistently acknowledged from the time he spoke to police to his post conviction petition that she is the person who brought about the victim's death in this case i think that the state is concerned about is the fact that cortez says he never intended to chill with victim but that really speaks to the guilty plea in this case cortez pled guilty  that were in fact arabs should be considered cortez here has certainly taken responsibility for his crime there's evidence from the psychiatrists that were test was one of the most remorseful people he had ever evaluated in same thirty years later as it was at his sentencing hearing he argued that this was a botched robbery and that the victim was the initial physical cause the initial physical confrontation and this was sort of self defense on defendants part he maintains that absurd story even thirty years later when he's supposed to be showing a developed brain capability and all of those things as a as an almost fifty year old that that should be considered by the trial court as evidence of defendant's nonna rehabilitated potential lack of rehabilitat potential but before we get to the actual sentencing hearing and the circumstances of this case i think that the trial court correctly determined that language harris is not all for any as applied proportionate penalties challenge harris specifically rejected the defendant's proportionate penalties challenge in that case and harris stated  flatly that the miller factors do not apply to someone over the age of eighteen there's never been a supreme court case yet and i know house is up for p l a and will probably be the st one to tackle this issue but so far there's no illinois supreme court authority or u s supreme court authority that applies miller to those over the age of eighteen and i don't see why the language that harris uses in the th amendment section of its opinion wouldn't apply equally to the proportionate penalties section of a reason why it wouldn't is because terrorists involve the facial challenge as opposed to an as applied constitutional challenge what i think the what the proportionate penalty is argument also a facial challenge or was that as applied in paris i think it was i think the th amendment challenge was facial and the proportion of penalties was as applied which is why all of these cases post harris are fashioning these as applied to a portion of penalties arguments i could be incorrect but i won't swear to it but that was my memory ok i think but when you read the harris language with the l in my legislatures as justice connect brought up and people hearses more the sentencing structure is best left to the legislature section four dollars that one hundred and five dollars cited in my brief it's literally titled sentencing of individuals under the age of eighteen at the time of the commission of an offense this was a  statutory application in response to miller this basically just made the miller factor statutory and illinois and they clearly don't apply to those over the age of eighteen by the title of the of the statutory section so with we if we take this to this conclusion on all of these cases the sentencing courts are going to have a quagmire on their hands with what the a political sentencing range is especially since while five doesn't apply to these defendants they were over the age of eighteen at the time of the offense and again house is up for p l a i've done a lot of these cases and argued similar cases before court recently it may very well be favorable to the defendant i don't think it will be i think the factual circumstances of house are a distinct outlier but i  would say that if house and other cases ultimately end up in defendant's favor then the defendant like in this case will have a clear cut successive post conviction remedy because those cases obviously wouldn't have existed at the time they filed their initial post conviction petitions so cause and prejudice will presumably be established and allowed for any post conviction a success a post conviction petition but as of here as of the way that the authority in illinois is now reading it with the statutory sentencing section the trial court here correctly dismissed this as frivolous and patently without merit if we do want to get to this the facts and circumstances this is an especially bad case for an as applied proportionate penalty challenge there's no way this natural life sentence shocks the moral conscience of the community when this defendant brutally stabbed a college girl over a dozen times with with at least six of them being in the back this of course is why the trial court flatly rejected the sense in court flatly rejected defendant's absurd story about this being some sort of self defense  botched robbery he was the sole perpetrator here unlike house where the defendant was an accomplice who was not even present when the person was murdered and the person who actually pulled the trigger ended up resist receiving a shorter sentence this is the exact opposite of house so perpetrator an especially brutal on heinous crime and the fact that the sentencing hearing was three days long to finish had multiple witnesses testify on his behalf defense counsel's primary brust as to why the trial court should show leniency in sentencing was based on defendant's young age and the trial court specifically considered it stated it considered everything that's been presented to me in these proceedings and balance that with the nature and circumstances of the offense which is proper so even assuming miller applies here i would say that this this the sentencing hearing was miller compliant and the nature and circumstances of this offense show that this was not a proportionate penalties violation based on the brutal and heinous nature of the murder and i would ask this court to affirm honor's i guess to start harris indeed rejected the facial challenge that was made under the th amendment but it explicitly allowed in as applied challenge under the proportionate penalty clause  it said the record was not sufficiently developed in that case in the state arguments transporting the facial to challenge the rejection of the facial challenge to the proportionate penalties argument which the supreme court allowed to go forward the state's argument is trying to what burke part about in her dissent but the majority opinion is the wash here and if you accept the state's argument you could never have cases like savage or franklin or daniels or r or johnson or bland or many fields or carrasquillo all of these cases over the last year or two that have allowed as applied challenges to go forward they were often brutal crimes and they were al sentences of natural life or defacto natural life and the appellate courts in each of those cases so it's improper to make a final determination as to the appropriateness of the sentence until the defendants have the opportunity to develop the record here we have showing that cortez was similar to that of a juvenile he was evaluated as a juvenile by his higher trysts he was  nated to have the emotional development of a fourteen or fifteen year old he grew up in a broken home she was just over the line of adulthood that still age of eighteen all of these this was that he never intended to kill her and he explained that it was for him to get back was retaliation for her rejecting his advances and in that sense it was an emotion in a mature what occurred at the time other than his testimony i think the six dampens in the back pretty real tell the story indeed she was killed and he was found guilty of her st degree murder but everything that you say needs to be brought out was brought out before the trial court yes it was drawn out but not given the consideration and again it would be improper to not allow him to develop this record we're here to st stage post conviction petition as compared to the other successive post conviction petitions that have allowed this to go forward cortez has certainly an arguable flame that his development is similar to that of a juvenile your argument is that have to be able to point to evidence in the record to make some sort of initial showing we have that here if you look at for example this court's recent case in more that was a case where the defendant made i think the argument that you're suggesting simply broadly concluded that his nineteen year old brain was similar to that of a juvenile in this court how correctly i think that that's not enough to get you a hearing and as applied challenge you have to be able to  not know not necessary many of them will be allowed to have the opportunity to develop its main problem i see that my time is up again i would ask the court to remand this case for the opportunity to develop his