your honor may please the court on behalf of my client yet masters i thank you for this opportunity to appear before you today gavin masters is merely asking for the opportunity to present evidence that merit now i know these types of cases have received a lot of activity as the miller cases and the decisions by or own supreme court have filtered their way through our pellet system in fact several cases have been decided since gavin filed his appeal and even after the briefs were submitted to the court so i would call to the that we point out that procedurally appellants case is different then the defendants in daniels and gomez the cases that i just cited to you and several of the cases cited by the state in their brief including andy and wiped gavin's case is coming before the court on his post on his st post conviction petition therefore he does not have the higher standard of the cause and prejudiced tests daniels gomez candy and white all involve successive petitions and the higher now ramsey is a little bit of a weird case because it involves governing quinn's commutation of ramsey's death sentence to life and although ramsey was eighteen there's really nothing in the record at least make a just of a constitutional client that he received a defacto wife sentence as it is applied to him as an eighteen year old which he did in his petition mr lovelace petition that he was less mature and has an underdeveloped sense of responsibility leading to recklessness impulsive behavior and heedless risk taking and that he is i think i even noted in there that it was to a facial challenge that issue as been decided by errors and that we were asking the trial court to specifically look at gavin masters situation and the factors that i stated and that the differences between adults and specifically gavin masters as a an eighteen year old but yet a juvenile diminishes i don't see the words as applied challenge anywhere in the postcondition petition you do you every bit you do you negate that you know a facial challenge is is not sufficient but that's pretty much been decided did the trial court realize you were trying to make an as applied challenge because i'm always concerned about potentially risking the trial court with you know over something that maybe the trial court didn't even realize that's what you judge judge adrian in this case dismissed the petition and i am i'm fairly certain i don't have documents pacifically in front of me but i pointed out that harris left open the door for an opportunity for an as applied challenge and i totally understand judge adrian's decisions based on hey he's eighteen years old therefore and there is and therefore he's an adult period that's what the court in here is decided and that's what judge adrian indicated is opinion but i tried to point out to the court that that i was making an as  challenge specifically as a rape related to gavin masters and again that's why those separate out legations as to looking at gavin masters and his traits and his development in this case and that's and that's all i'm asking the court to do whether we can sustain this case into an evidentiary hearing and i believe we can of course we would have to make a s proportionality clause again i didn't the focus in my brief is really whether or not again eighteen year olds are even eligible for an as applied challenge because that appears to be the issue that the court seems interested in and the courts are bad you know around issues i think everything else is pretty much decided and again i would if there are  discrepancies or my petition itself falls somewhat short of saying specifically certain aspects of the case i would call the court's attention that this is that that you're still only required to make a jest yeah i don't believe that i've come across any law in that area that that says there's anything different between a a a private coun and in a pro se time again i think it's designed that you know oftentimes pro se defendants do do file when they don't have the opportunity to research certain aspects of the case i did research this and it would be my intent to proceed forward in the circuit court with an as applied challenge if the court would give me that opportunity i think the other difference so so again we're not dealing with a successive petition and that seems to be where many of the cases are involved and i would understand the court's concern about opening the door to successive petitions filed by people who are let's say twenty years old when they committed the crime and flooding the courts with these new claims and as a challenge and again this is not a successive petition this was this was given masters st official so it is a lower standard factually his case is different than many of the cases that have been dismissed and been up  adult and still a teenager at the time of the offense was which was on july th so he was roughly five months into his th birthday and several of the cases that are cited by the state involved defendants who are much older i would call the court's attention to people versus white where the defendant was twenty years old when he brutally murdered is grandmother and her friend and then attempted to conceal his involvement in the crimes also people versus hoover a nd district case where the court considered a twenty two year olds as applied  three at the time and even in the suburbs court the court concluded that while many could and while it may seem but a short step to apply miller factors to an eighteen year old offender it is much greater  to extend them to a twenty one year old and even a much greater plea to applying them to a twenty three year old so again i think it's important to recognize that  a master's was just into his eighteen birthday on july th when this crime occurred and as i indicated there have been several cases i've given the court those cases i would specifically ask the court to review people versus daniels i think it's a very well reasoned decision that case reversed a decision to dismiss a successive petition so the defendant in that case was able to overcome the challenges of a cause and prejudice standard  in the court send that back recognizing the that you know the next battle would be to whether or not he could show a substantial showing so again this case i think does a good job of outlining the various positions the court has taken on this issue again it is a st district case where a lot of these cases were seen published opinions the the  defendant in that case was nineteen years old and and it even the case even refers to some earlier cases where the st district   case where it differentiates it from other defendants and it looks in the house looks really at the crime not so much the defendant himself in  house the the defendant was was not actively involved in crimea was a it was a lookout i believe he was nineteen years old and the tour court took that into consideration and and i think the state and some courts have used that to say that if the defendant is the actual perpetrator of the crime took an active involvement  outs i mean how to say i agree with the decision in many courts do agree with the situation but i thought don't think it was limited or women even other eighteen or nineteen year olds claims to say if you were the actual shooter i specifically tailored the petition for matches a valuation now i didn't attaches a valuation to the petition because in looking at the standard i didn't think it was appropriate to attach it but i would determination that gavin masters is not an adult that he is a juvenile and he deserves the protections offered by miller and you know in hindsight having such a quick dismissal maybe that should be attached i think based upon judge adrian's ruling i don't think it would make a difference i think judge adrian viewed this as as he did in the sentencing and if there is a brief mention of this gavin's age in the sentencing that it was eighteen therefore he's an adult and he can be sentenced for an adult and and therefore you know he's eligible for the minimum is a maximum as in this case judge adrian sentenced him to one hundred and fifteen years so again we're merely asking for an opportunity to present  garbarino in his report and hopefully as testimony for judge aid to consider in determining the true it of gavin masters and for that reason we would ask that these no i don't think that would be appropriate i mean that's obviously the goal is to get a rd stage hearing but i don't think it would be appropriate for the appellate court to force anything upon judge avery and as far  as not giving him an opportunity for a nd stage what i would intend and to do would be to appear in court with my client ask for the court to for leave to file the reports of the court has that in order to make a substantial showing i'm sure the state filed a motion to dismiss citing many of the cases science cited by the state in this in their briefs and then we can have that issue the only way these cases can be decided is that we we yes or misplaced the court of the harris opinion controls in this case and i would point to justice burke's special concurrence in that case because they were dealing with the same minimum sentence in this case seventy six years and that means that it didn't it really wasn't as applied challenge because even assuming defendant got what he wanted and got re sentenced the minimum sentence he could have received will be seventy six years that was the minimum sentence in this case two and it sounded like defense counsel at sentencing what kind of default about the even the minimum sentence meant that the defendant was going to die in prison so that sounds an awful lot like a facial constitutional clearly left the door open for i mean as a pipe challenge well i they they left a small door open which house and all the cases in the st district even as recently as two weeks ago  made into a mile a mile wide gap i don't think that the harris decision meant to basically house in all those other cases even franklin is savage which are cited  another brief because this seems to be the issue of the day right now those cases hold that harris even though it rejected the defendants as applied challenge because they rejected it due to a lack of sufficient record they say that implicitly that means that any record that can can support an as applied challenge that's available for these young adults genders and i don't think parents should be read that way harris does not stand for them  even the majority they rejected the they rejected miller applying to defendants over the age of eighteen and all they say it's not doesn't have anything to do with evolving sciences they're stating the obvious fact that a line has to be drawn and that's been that way since the of the illinois constitution i think both of them are are the goal is to apply the miller factors at sentencing or on a recent incorrect i think that that's the that was what the house opinion that was the l annoys illinois amendment or actually it's a new statute they created for sentencing of individuals under the age of eighteen it's basically a convict cation of those miller factors that have to be required urban are required to be considered at sentencing the problem with that is that that title the title of that section is sentencing of individuals under the age of eighteen at the time of the commission of an offense the legislature was well aware of miller i mean that this the statutory section was created in response to miller they could have easily made it under the age of twenty one dollars under the age of twenty five dollars or whatever they specifically excluded individuals over the age of eighteen for mass actions  when i read through house and they remand for re sentencing they're going to be in contradiction to this statute which only applies to those individuals under the age of eighteen at the time of the commission of the offense in house and in this case and all of the other cases th followed house that that statutory section simply doesn't apply when you break that with harris i think that that roundly rejects the the possibility that miller applies to individuals under the age said that the court should not recognize that because defendant was arguing even the minimum sentence was a day that the majority didn't recognize it as an as applied challenge that does not have a fully developed record which is necessary to make a decision on that yet they didn't they didn't definitively comment that miller applied in those sections though and i think when you look at the statutory section four five dash wildfire i don't think that it's possible for for the for any court in illinois to to apply those military people over the age of eighteen whether it be proportionate penalties or whether it be th amendment or has applied or facial simply miller doesn't apply to those those people over the age of eighteen now maybe the legislature will amend that section in the future maybe it will be a favorable favorable position for defendant in the future but as the law is right now and that's fair stated that the law was not the miller was not of applicable to this defendant because he was an adult at the time died and yet you're talking about paragraph forty five and i'm going to read it to you in miller applies to his particular circumstances that sounds like it would have a challenge to be well if they i think again i think that's what house that's what house considered but i would submit that house interpreted that rahm i don't think that miller can apply even as applied proportionate penalties or whatever because the defendants are over eighteen so you're asking us to adopt the position of the special concurrence why the remaining judges procedurally in this case yes because in this case pacifically the minimum sentence was seventy six years exactly the same amount of sentence the minimum sentence and harris so this think that the the special concurrence is is correct it's not as applied challenge because it's fit it's on its face was it there was no way that sentencing scheme could have been constitutional if what if miller applied and miller and buffer the illinois the illinois case that decided the fact of life sentences there's no way that could be applied constitutionally in any set of circumstances because the minimum sentence was seventy six years which is above the forty year the fact of life since the buffers stablished but also if defendant was recent missed he's asking to be re sentenced under the statutory section the specifically  excludes those over the age of eighteen the millet factors and four for four fifty one of five it specifically applicable to those individuals under the age of eighteen so it's kind of a quagmire as to what would happen procedurally on these on these remains when the defendants are being resettled in this case of course i don't think you have to get that far because again the seventy six year minimum sentence defendant was ultimately sentence two hundred and fifteen years seventy six year minimum sentence in this case is clearly a facial constitutional challenge because there's no set of circumstances and dependence circumstances in this case don't really matter but if we don't if we do find that the the defendant house was convicted under accountability theory and was not even present at the murder that this and this case if we look at the actual circumstances if we decide to to do the as applied challenge this case is especially brutal one heinous defendant shot two armed people unprovoked one of them ended up dying one of them ended up not being able to walk for the rest of his life he offered no no help to the to the living victim and he showed no remorse i don't think that it could get any more distinguishable from house where the guy wasn't even present during the murder and was more of a lookout response i don't ever question thing right there what were the minimum sentences statutorily required for a person convicted of these crimes it was a finding th process the cause of the the minimum total sentence was seventy six years based upon what pregnant for i think it was twenty five years each a of sentencing i'm not sure i don't i think it was nineteen or twenty is there a case that is held that what your agreement with the statutory min not apply because it's dependent over a team as for the as applied challenge as your honor holder white pointed out on day the kind of content on that issue they said the record was not sufficient position now for this court is that a seventy six year sentence for this defendant is a violation of the constitution and read a state or federal i don't know if you mean i don't know if you're familiar with the house case that we're discussing or and the more recent st district cases but those do all that the as applied challenge there  they hold that there should be defendants titian's should not have been dismissed that's what the that's what all the cases of help none of dependably helped that none of them remain a perjury sentencing except for house september and what was the explanation for why they followed house and decided day they applied the facts and circumstances of that case and when that went the route that that house did that the it's arguable that the proportionate penalty that they need since shock the moral sense of the community and therefore proportional penalties argument is that least arguable meaning that the petition should not have been  proportionate penalties illinois constitution again i think i think that that that house was wrongly decided i think they misapplied harris and i don't think that they thought through what w happen upon resentencing because the statutory section that they're supposed to consider is specifically excludes those over the age of eighteen it's sentencing factors for individuals under the age of eighteen at the time the commission  offense and it also ignores again the statutory minimum like in this case if defendant was to be re sentenced he would at least be sentenced to seventy six years again this is a problem with the legislature and not  repeatedly distinguished based on the outlier facts of that case being it was multiple murder so he was statutorily required to get wife was he wasn't even present have the murder and he was you question your story that's why it said we as the law stands now the trial court properly dismissed as petition because no no us supreme court authority has has held as house did in this  take when the legislature six specifically excluded those over the age of eighteen from the benefits of the sentencing factors and again that would be a departure from what the majority has stated and basically  current that that would not be here and again harris harris rejected the as applied challenge even we don't even know what if the factual is the fact that the record was sufficient to make a specifically hold that miller did not apply because the defendant was over the age of eighteen to the facial challenge but they also may also state that to the extent that defendant may have intended to raise them as a pipe challenge under the pulled up the petition while the state was arguing and i guess i would call the court's attention to i guess starting a paragraph fifty two and then fi the th amendment fayose and then paragraph fifty soon courses because defendant was an adult male or does not apply directly to his circumstances and a record must be developed sufficiently to address the claims defendant's claim that miller applies to his particular circumstances so i would agree with your honor that i didn't say facial or well i think i did use the word facial paragraph fifty three but did not use the word as applied but clearly i use the word applies to is particular circumstances in that paragraph and then i go on to  the miller factors and what happened alleges in his titian then i also hold up your honor my motion to reconsider which i filed shortly after the judge's ruling  then i say therefore the only supreme court has recognized and as applied challenge for young adults gavin's miller claim as stated in this post conviction has an arguable basis either a i agree the law says that he should i'm opposed to seventy six years and i would be arguing that even that is unconstitutional because as that law is applied to laws applied to him it's i'm trying to tional as that seventy six years your minimum is applied to him it's unconstitutional and he would it would have to be somewhere less than forty years in any court you will be asking the trout court will hold namely that the statutory required minimum sentences for person who were eighteen under any circumstances no i'm not aware of that that a court has ruled in these circumstances and again i think these cases are moving their way through the appellate process and you know this might be that case that is nice an issue opportunity for and at least an eighteen year old to have an evidentiary hearing to determine if he was truly eighteen and and if you were i mean if you would've sure you looked and so there's a lot of research and carefully are there any cases now can be before the only supreme court where their court is being asked to decide essentially th decided specifically that issue now there are plenty of cases out there whether there are successive petitions well i found the one the success of a petition where the courts are sending it back for those evidentiary hearing but i don't believe that there's been a situation where the evidence rehearing is occurred the court has found the defendant to be a juvenile for purposes of sentencing and the court is then faced with a mandatory minimum above forty years and has to make a decision on whether or not in judge adrian's case well i can go down to the mandatory minimum of seventy six  sorry go ahead well there are findings though that the trial court could make you mentioned determines that he's a juvenile that would allow the trial court to impose it's just a matter of sending it back to the court and again i think it would be the proper role of the court to send it back to the trial court to say that you know it be improper to dismiss it the st age but now you have a nd stage and i imagine many of these issues we will argue at the nd stage on the substantial showing and judge order and very well could dismiss it at that stage we'd be back here arguing some of these very issues and see how they develop and to and to test the science that yes what uscis litigants have to offer as far as expert testimony and quite honestly then expert testimony on this case i would i would be asking him depart from that that the seventy six year scheme is unconstitutional unless you can state some factors otherwise and that impose a sense of no more than forty it all the notes that i have and i think they're very interesting issues and i would love to have the opportunity to further develop this case and if we d end up back in front of your honor i don't think that's a bad thing