who asserts that this matter should be reminded for a new sentencing hearing so that the trial court can properly consider the defendant's youth and its attendant characteristics in light of the supreme court's determination and people resist butler that i'm sorry buffer that forty years equals a de facto life sentence which can only be imposed if the trial court determines that the defendant is irretrievably to craved permanently in corrigible or irreparably corrupt my opening brief hit is dramatically different from the argument that's being presented at this point and it reflects the evolution of miller and other cases that the u s supreme court has considered in the evolution of the way that we treat and view juvenile offenders a very serious crimes originally when i wrote this brief i challenge the defendants sentence as excessive for two separate reasons first that the court failed to adequately consider the defendant rehabilitative potential under the new sentencing scheme as set forth in seven hundred and thirty i'll see us five slash five dish for point five thousand one hundred and five and secondly because of the risk that the court's decision was improperly influenced by the admission of an excessive number of sometimes inappropriate victim impact statements as well as attribute after buffer came out then that changed the argument considerably and now the question remains whether the circuit court which admitted at the time that it did not know what a de facto sentence was intended to impose a de facto sense the evidence within the court's conversations with counsel and what was presented at the sentencing hearing are unclear to that but clearly some would suggest that the court did not intend to impose a de facto so i plan on focusing on the st portion of the argument as to why the defendant sentence is excessive and inappropriate but certainly if time permits and if there are questions i will address the latter issue concerning the victim impact statements this court is well familiar with the landscape that has surrounded and has changed when throughout such cases in the u s supreme court has robur graham and miller it started with roper in which it was found that capital punishment for juveniles who commit murder was inappropriate in graham it developed that a mandatory life sentence for juveniles who commit not homicide was not appropriate and in miller it was determined that there can be no constitutional mandatory life sentence for juveniles who commit homicide there has also been a statutory change here in illinois reflecting the factors that were st enunciated in people as holden in appropriate and specifically whether the twenty five year add on for firearms should be imposed and it was in that light that the circuit court considered this factor and it's important to note that the factors  imposed in this decision was made prior to the decision and it should also be noted that those nine factors are all to be considered in mitigation towards the defendant and it reflects the change from roper and graham and miller and on down the line that juveniles are viewed differently than they are than are adults and it's for that reason that one of the citations made by the state and its brief to people resists vega is inappropriate because if they go as an adult in the cases that vigor relied upon involved here where looking at a juvenile who had had difficulty with the delinquen system who had a past who had a very troubled home life and these are among the nine factors that are set forth in the statute that are to be used to determine whether the defendant has rehabilitated potential then one of the factors mr witt in the trial just specifically though the judge specifically considered the factors and i have two arguments about that one is that i i don't believe that he did so in the proper fashion but the nd is that those factors are to be used to determine whether a de facto sentence is appropriate and the problem is that the judge and the attorneys were arguing in the dark in this case because nobody knew at the time what a de facto sentence well and the judge admitted that and commented we don't know what a de facto sentence is and because the judge did not know what a de facto life sentence was it can't be maintained that he entered the sense that he did knowingly that he did so because he thought that a defacto sentence was appropriate in fact the judge rejected the state's request for a seventy year sentence which is clearly a defective sentance and the court and council discussed exactly where within that range it lay sanders i think it's at the age of sixty there were other cases that were discussing where this this should be drawn even within buffered there are little differences between exactly what the ages but it clearly comes down to the fact that and as was the decision for forty years as were de facto allies the court in this case not knowing what the fact it was didn't know what sentence was being imposed and certainly can't be said to have done so knowingly and intentionally after considering factors it's for that reason that we are asking and this is different from the request initially within the opening brief the defendant is asking the this matter be remanded for a new sentencing hearing rather than simply a reduction of  sums turning then to the factors that were considered by the court again and as stated in the opening brief we have d issues with the manner in which this case was determined in part because it goes against the the analysis and the rationale of miller and roper and graham and buffer in that we're we're looking at juveniles differently and looking at the background that they have and the factors that influence not just the the actions that they take but the decision making process and the way that they come to these decisions and the fact that the court found for instance that the defendant's acts were premeditated premeditation by definition is inherent in any criminal offense and the question is does a juvenile does a seventeen year old a sixteen year old have the same capability to make a decision in a knowing and reasoned fashion as does a thirty year old or a forty year old and clearly the science shows that that's not the case and the law has decided that that is not the case well one of those things there's really no reasonable person would do what this defendant there were sixteen or forty and so if you talk about premeditation here influences that and what ability does somebody who thinks of this what ability does that person have to control his impulse or to to mend his behavior and it's different for a juvenile than it is for an adult and that's what the case law makes clear and that's one of the things that needed to be considered here is that obviously the defendant's judgment was improper but that doesn't mean that in thirty or forty years he can't be rehabilitated in fact he's much more likely to be rehabilitated then is a thirty or forty year old because the thinking process is that he engages  unformed and undeveloped as compared to an adult and that's that's among the reasons why the courts have limited a sentence not just to actuarial tables or or where  exactly is the line going to be but also intend to provide a period of time for the defendant to return to society to reenter having been rehabilitated and it's much more likely that a juvenile who may have the same premeditated act as an adult is more likely to be rebuilt it's these factors that needed to be considered with the defendant's rehabilitation in mind and it is our position that the trial court didn't view all of those in that way he discounted the defendant's troubled upbringing in a house of abuse and drug use and violence and while that the judge correct that that didn't necessarily lead to this specific offense but it led to the ability of the defendant to respond in that fashion and to commit offenses like this because as the the report by doesn't carry was responding to anything he was actively doing something right and there was nothing about this and sense that's a response as or not probably not and the reason that i hesitate in is that while while there were some indications that that this was planned for instance he suggested meeting someplace when  the victim suggested a different place and was at that place saw the defendant and drove to him and that kind of change may well have influenced the defendant's response and the feeling that he needed to react and changed that sight when they saw him the the trouble is that the way the defendant was raised and brought up and taught about violence and and there was specific we referred to by the expert a heightened arousal and response mechanism and and that's the type of thing that at seventeen is going to be very different from when the defendant is fifty four and again while while that is something for the trial court to consider in determining whether or not to impose a de facto sentence the fact of the matter is here that the court did not know and could not know what a defact and without that knowledge it can't be said that the trial court considered these factors setting aside whether i agree or disagree with the way the court treated the factors it can't be said that the court considered these factors and forty years was you never going to be able to determine that any case prior to setting forty years as a as a life sentence as going to have an air i don't think  so no and the reason that i say that is that the the judge here was clearly i don't want to say on the fence that's not quite right but the judge wasn't certain where it fell and not knowing the age but also not knowing or not and then seeing exactly where in these parameters the defendant's behavior had the judge said you know there is clearly no chance for this defendant to rehabilitate whatsoever had he had he drawn it in those terms it wouldn't have to use the considerations necessarily that were set forth in the other cases he didn't necessarily have to say that he was irretrievably pray but there was no indication here that the judge thought that the defendant was utterly without rehabilitative potential and without that it can't be said that the judge intended the sentence to be a de facto life sentence particularly since he rejected the sentence that was suggested by the state and particularly since he was trying to work toward where the line was drawn in those terms describing the circumstances of the offense in the offense itself he didn't make any sort of indication that that a life sentence was appropriate and he certainly could have gone higher in the sense that he imposed and dialed it back and he clearly expressed inability to state given the numbers that were provided in the science that was provided as to you know is he is the age seventy eight is it which is is i believe actually seventy six would be about what he would be given that one offense was eighty five percent but he there was a discussion has to do is the range eighty is  sixty and and we also have to keep in mind that the range is much different when you spend forty years in prison then when you don't spend forty years prison and so what may be a clear age that somebody is going to survive when they're not imprisoned that's very different when in fact they aren't karsa rated for a lengthy period of time so living to fifty six is not as likely for somebody in prison as it is for somebody characterized the st controlled by the gas station as a tester and then he wanted to buy a large amount of cannabis a few days later and he suggested lot which the so hurt for very uncomfortable as he said why don't we just meet at the restaurant the gas station to get him so that was the point and the defendant was walking to the gas station be asleep he had a gun on him and his motive was to obtain this cannabis without paying for it and  doing so he killed one person and he shot another person who survived he ran out of bullets there's a rd person in the backseat and he got away only because house with the search warrant so this was actually a premeditated that doesn't apply to the defendant's youth and upbringing and the nd one is whether the trailer judge considered whether there was any rehabilitative potential and i have rain here i have the quote from the trailer judge the trial court found defendant had little potential for real rehabilitation in part comma because of defendants bad behavior well increase rated in waiting to be sentenced justify a sentence by defendant's bad behavior in present prison in this case the thing that wasn't sentenced so the trial court could consider  now the trial judge did not have the buffer it case by the supreme court but certainly the trail judge wanted to give defendant a significan because he found this individual extremely dangerous and he found little real rehabilitative potential and he probably believed this would be a life sentence since he would not be released until he was in his seventy's but the trail judge stated on the red beard why he rejected peace to claim  crimes this court should find that this is one of those rare circumstances oh if you find that one other thing mr differently i know i'm not the same person i am now as when i was seventeen years old and never contemplated me ever shooting a person for no i did not make this argument in my brief so you don't have to consider it but instead of just remaining the costs for a new sentencing hearing believe the trial judge would probably rule the same that he did before and we'll be back here in two more years the main content sheen why this is a life sentence and again as i had argued that the when the trial judge made his ruling he didn't really know what the target was but i would also note that at the time he also was looking at a different purpose and specifically the statute that is at issue here refers to and as mr leonard pointed out he used it to determine that the twenty five year add on was appropriate now st i would again note that he did so not knowing that that would automatically create a mandatory minimum beyond that which the supreme court unbuffered considered to be a de facto sentence but secondly again it shows that the purpose was not me that judge points out that well the reason we went through each of these nine factors very carefully was to make sure that the sentence would stand whether or not the supreme court decided it was a life the fact of life in other words i want them sixty two years but just in case considered in fact life i understand what you're saying but i think that it is difficult given the the investigations that were done given the arguments that were made by my counsel in particular that it's difficult to say with any certainty that the court intended for this to be a de facto life sentence and i think that it's imperative that we not just leave it to chance but that we give the trial judge an opportunity to make that finding if that's indeed what he intended rather than risk the the very real possibility that the judge did not intend for this to be something that would serve as a de facto life sentence the court the supreme court has clearly drawn the line at a point considerably below what the trial judge imposed but the trial judge's sentence was also considerably below that which the state requested and the state had no no difficulty saying that the sentence it requested was a defective life sentence but again neither the court nor nor any of us knew at the time that that was the sentence that was being imposed and i think that his country hunches as the judge was in considering all of the factors that were used to determine  whether he imposed a twenty five year add on the judge was clearly trying to at least i think that the record reflects that it could well be that the judge was trying to impose a sentence that was not  requires that a judge consider those factors before it decides to impose a sentence of of forty five years at a minimum had had that statute been written at a time when it was known  that the court was going to find that anything over forty years was a de facto sons i imagine that the legislation would have been written differently because of all these questions and because we don't know fully what the judge intent was because we do know now that a sentence greater than forty years is a de facto life sentence the defendant respectfully request that this court remember the matter for a new sentencing hearing before the you're getting past this and hopefully one day before too long we'll be able to all be in person together and i would think it would be easier for all of us i think so until next month i think