Illinois Official Reports 

Appellate Court

People v. Coty, 2018 IL App (1st) 162383

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

WILLIAM COTY, Defendant-Appellant.

District & No. First District, Third Division

Docket No. 1-16-2383

Filed August 8, 2018

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 04-CR-30062; the 

Hon. Nicholas Ford, Judge, presiding.

Judgment Sentence vacated.

Reversed and remanded with instructions. 

Counsel on

Appeal

Michael J. Pelletier, Patricia Mysza, and Daniel T. Mallon, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Lisa Madigan, Attorney General, and Kimberly M. Foxx, State’s 

Attorney, both of Chicago (Gopi Kashyap, Assistant Attorney 

General, and Alan J. Spellberg and Mary L. Boland, Assistant State’s 

Attorneys, of counsel), for the People.

Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court, 

with opinion. 

Justices Howse and Lavin concurred in the judgment and opinion.
- 2 - 

 OPINION 

¶ 1 After a jury trial, the defendant, William Coty, who is intellectually disabled, 1 was 

convicted, inter alia, of predatory criminal sexual assault of a minor. Because the defendant 

had a prior conviction for aggravated criminal sexual assault, pursuant to section 12-14.1(b)(2) 

of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14.1(b)(2) (West 2004)),2

 the 

trial court had no discretion but to sentence him to mandatory natural life in prison without the 

possibility of parole. After his conviction and sentence were affirmed on appeal (see People v. 

Coty, 388 Ill. App. 3d 1136 (2009) (table) (unpublished order under to Supreme Court Rule 23) 

(hereinafter Coty I)), the defendant filed a petition for relief from judgment pursuant to section 

2-1401 of the Code of Civil Procedure (Civil Procedure Code) (735 ILCS 5/2-1401 (West 

2004)), alleging, inter alia, that his mandatory natural life sentence was (1) facially 

unconstitutional under the eighth amendment of the United States Constitution (U.S. Const., 

amend. VIII) and (2) unconstitutional as applied to him under the Illinois proportionate 

penalties clause (Ill. Const. 1970, art. I, § 11) due to his intellectual disability. After the trial 

court sua sponte dismissed the defendant’s petition, the defendant appealed to this court. 

¶ 2 On appeal, we affirmed in part and reversed in part, holding that, while the defendant had 

failed to establish that his mandatory natural life sentence was facially unconstitutional under 

the eighth amendment, that same sentence was unconstitutional as applied to him under the 

proportionate penalties clause. See People v. Coty, 2014 IL App (1st) 121799-U, ¶¶ 60-75 

(hereinafter Coty II). We therefore vacated the defendant’s sentence and remanded the cause to 

the trial court for resentencing. Id. ¶ 77. 

¶ 3 On remand, the defendant, who was then 52 years old, was resentenced to 50 years’ 

imprisonment. The defendant now appeals from that sentence contending that the trial court 

abused its discretion when it imposed an extended term sentence that was the equivalent of a 

natural life sentence. In the alternative, the defendant contends that his 50-year de facto life 

sentence is unconstitutional under both the federal and state constitutions, as applied to him, an 

intellectually disabled person. For the reasons that follow, we vacate the defendant’s sentence 

and reverse and remand for a new sentencing hearing, with instructions. 

¶ 4 I. BACKGROUND 

¶ 5 Because we have already articulated the facts of this case in our prior two orders, we set 

forth only the facts and procedural history that are relevant to the resolution of this appeal. 

¶ 6 A. Fitness Hearing 

¶ 7 The defendant was arrested and charged on November 21, 2004. Prior to trial, the court 

held a fitness hearing to determine whether the defendant was fit to stand trial. At that hearing, 

the State called Dr. Debra Ferguson, a forensic clinical services psychologist from the forensic 

 

1We acknowledge that the term “mentally retarded” was used in the initial appeal in this case, as 

that was the term used during the trial proceedings and in all relevant case law. However, because that 

term is no longer the preferred nomenclature, for purposes of this appeal we will use “intellectually 

disabled.” 

2We note that section 12-14.1(b)(2) was recodified as section 11-1.40(b)(2) (see 720 ILCS 

5/11-1.40(b)(2) (West 2010)) and became effective July 1, 2011. 
- 3 - 

clinical services office of the circuit court. Dr. Ferguson testified that the defendant “had a very 

basic knowledge of most legal proceedings” and that the things “he was not familiar with, he 

was able to understand with an explanation and to retain and *** repeat it.” According to Dr. 

Ferguson, for example, the defendant understood that a judge was the person who “sentences 

you,” that he was the defendant in the case, and that the jury was “some crazy people that sit up 

in some room. They say what they say. They can’t judge me.” The defendant understood that 

jurors “talk about the case in a room and give a paper that read[s] guilty or not guilty.” Dr. 

Ferguson acknowledged that the defendant did not know the role of the prosecutor but averred 

that, after she explained it, the defendant acknowledged that the prosecutor was not “on [his] 

side.” Dr. Ferguson further opined that the defendant was aware of his charges, the allegations 

against him, and the possible penalties (which he described to her as, “I know I can get 6 to 

30[.] I know that.”). Dr. Ferguson further acknowledged that the defendant initially did not 

understand that he could choose whether to proceed with a bench or jury trial but instead 

believed that this was a decision reserved to the trial judge. Nonetheless, she averred that, after 

she explained, the defendant understood that it was his option. Dr. Ferguson opined that based 

on her examination the defendant was fit to stand trial. 

¶ 8 On cross-examination, Dr. Ferguson was asked whether she was aware that the defendant 

was receiving Social Security disability based on his intellectual disability. 3 She 

acknowledged that she was aware of this fact but was unable to confirm the intellectual 

disability for which the defendant was receiving disability checks. She admitted that her office 

had requested this information from the Social Security office but then “gave up waiting for it 

and filed [the] report” attesting to the defendant’s fitness. 

¶ 9 On cross-examination, Dr. Ferguson further admitted that she did not perform any 

standardized tests to evaluate the defendant’s intellectual disability but acknowledged that it 

was her understanding that his full scale IQ score was 65. 

¶ 10 On redirect examination, Dr. Ferguson admitted that it was her opinion that the defendant 

was in fact mildly intellectually disabled4

 but testified that a diagnosis of intellectual disability 

does not “tell *** anything about whether an individual is fit or unfit” to stand trial. 

¶ 11 In opposition, the defendant called Dr. Sandra Dawkins, who was qualified as an expert in 

clinical psychology. Dr. Dawkins testified that the defendant’s full scale IQ was 55, which 

placed him in the “extremely low” range of intelligence when compared to normal adults, so as 

to make him unfit to stand trial. Dr. Dawkins explained that in coming to her conclusion she, 

inter alia, (1) interviewed the defendant on two occasions; (2) reviewed numerous documents, 

including his entire forensic clinical services record, court records, and police records; and 

(3) administered four scientifically recognized standardized tests to evaluate his cognitive 

ability,5

 his adaptive behavior,6 his competency to understand Miranda warnings,7 and his 

competency to stand trial as an intellectually disabled person.8 Among other things, Dr. 

Dawkins opined that under the Social Security disability standards an individual is eligible for 

 

3The term used was “mental retardation.” 

4Again the term “mentally retarded” was used. 

5The Wechsler Adult Intelligence Scale (WAIS-III) (otherwise known as an IQ test) 

6The Adaptive Behavior Assessment System-II (ABAS-II)

7The Assessing Understanding and Appreciation of Miranda Rights test 

8The Competency Assessment to Stand Trial for the Mentally Retarded (CAST-MR) 
- 4 - 

intellectual disability benefits with an IQ score of 59 or under. She stated that the results of the 

IQ test she administered on the defendant were consistent with the defendant receiving Social 

Security benefits. She pointed out that the defendant received a verbal score of 55, a 

performance score of 64, and a full scale IQ score of 55, which placed him in the “one percent 

of the population who retain IQ scores at that level.” 

¶ 12 Dr. Dawkins also testified regarding her interviews with the defendant and stated that the 

defendant’s concentration level was variable, that he had a very short attention span, and that 

he had difficulty explaining similarities. In addition, while he knew where he was and what the 

date was, he could provide neither the day of the week nor the approximate time of day. When 

asked how he knew the date, he stated, “It is my court date. That is what I have been told.” 

¶ 13 Dr. Dawkins further averred that, throughout the interviews, the defendant’s responses

were very inconsistent. She explained that there were elements of his statements that would 

imply he had an understanding of the court system, but when any one particular concept was 

explored further it became apparent that the defendant did not, in fact, understand it. She stated 

that once she explained certain concepts to him, he would easily acquiesce to the point, accept 

her explanation, and regurgitate it. She explained that this allowed him to feel calmer and not 

worry. According to Dr. Dawkins, the defendant does “not accept that he is as cognitively 

limited as he is, so he projects an image that he knows more than what he actually knows.” In 

that respect, he has acquired a lot of “street jargon” and “tries to portray himself as being more 

knowledgeable about the world around him than he actually is.” 

¶ 14 In addition, Dr. Dawkins testified that she interviewed the defendant’s sister and uncle as 

part of the adaptive behavior test. She opined that the results of that test showed that the 

defendant would have “a very, very difficult time functioning in society independently,” and 

would require “support in the work world, at home, [and] caring for his personal decision 

making.” She stated that the defendant “acts without considering the consequences of his 

actions” and is therefore “easily exploited,” both because of his “low mental ability” and desire 

to “fit in.”9 

¶ 15 After hearing the evidence and arguments by both parties, the trial court found that, 

although it was undisputed that the defendant was intellectually disabled, 10 he was 

nevertheless fit to stand trial. 

¶ 16 B. Motion to Suppress Confession 

¶ 17 Prior to trial, the parties also litigated the defendant’s motion to suppress inculpatory 

statements he had made to police. At a hearing on that motion, the following evidence was 

presented regarding the defendant’s cognitive abilities. The State again called expert forensic 

psychologist Dr. Ferguson, who was now tasked with determining whether the defendant was 

capable of understanding his Miranda rights. Dr. Ferguson averred that, in order to assess this 

 

9Dr. Dawkins’s report, which is part of the record on appeal, further notes that when she 

interviewed the defendant she was struck by the fact that although he was 41 years old, he was very 

small (approximately 5’5” in height at 120 lbs) and had a “childlike demeanor,” so much so that he 

could be mistaken for a child, until one looked at his face. Dr. Dawkins’s report further notes that 

throughout her interaction with the defendant, he exhibited noticeable shaking. When asked why he 

was shaking, the defendant stated that he “always had and that [this] was why his nickname was 

‘Shakey.’ ” 

10The trial court used the term “mentally retarded.” 
- 5 - 

ability, she performed only one part of the four-part “Grisso scales” test on the defendant, 

specifically, the function of rights in interrogation part.11 According to Dr. Ferguson, the 

defendant successfully applied the Miranda warnings he had received to a hypothetical 

situation and therefore passed this portion of the “Grisso scales” test. Dr. Ferguson also 

averred that, during her interview with the defendant, the defendant exhibited an 

understanding of his Miranda rights. In particular, Dr. Ferguson explained that the defendant 

had acknowledged to her that the police read him his Miranda rights. When asked to explain 

what those rights entailed, the defendant told Dr. Ferguson, “yeah I know they [sic] supposed 

to read you your rights *** I’m slow but I ain’t that slow. They have to read you your rights. 

They can’t just lock you up like that without reading you your rights.” 

¶ 18 In opposition to the State’s testimony, the defendant called his own expert, Dr. Michael 

Fields. Unlike Dr. Ferguson, Dr. Fields testified that to determine the defendant’s ability to 

understand Miranda, he administered the full Grisso scales test. Dr. Fields testified that the 

defendant scored poorly on all four parts of that test. In addition, he stated that during his 

interview with the defendant, the defendant could not name his Miranda rights. Based on the 

above, Dr. Fields opined that “there were significant doubts about [the defendant’s] ability to 

understand Miranda.” However, when questioned further, Dr. Fields acknowledged that he 

could not state with certainty that the defendant was categorically unable to understand those 

rights. 

¶ 19 The trial court denied the defendant’s motion to suppress his statements to police, noting 

that Dr. Ferguson’s interview provided the stronger and better evidence of the defendant’s 

capacity to understand Miranda. The court stated that Dr. Fields articulated an equivocal 

opinion that lacked certainty, and that his opinion was based more on testing than on a clinical 

interview of the defendant. 

¶ 20 C. Jury Trial 

¶ 21 At trial, the victim K.W. testified that she was six years old in November 2004 and that the 

defendant, whom she knew as “Shakey,” lived as a boarder in her grandparents’ house. The 

defendant lived in the basement, as did K.W.’s parents and siblings, and K.W. was allowed to 

sleep in the basement or upstairs with her grandparents. K.W. testified that on November 18, 

2004, she was watching TV alone in the defendant’s room in the basement, while her parents 

and cousin were asleep. She stated that she was wearing a T-shirt, skirt, and underwear. K.W. 

averred that the defendant came into the room and sat down on the couch with her. He then 

started to “scooch” toward her, and every time she moved away, he moved closer until she 

could no longer move. K.W. stated that the defendant then touched her arm, her shoulder, and 

her leg and then “started messing with me down there.” She identified that part of her body as 

the “part that [she] use[s] to go to the bathroom with.” K.W. then explained that the defendant 

had “not [touched her] with his hand, but with his tongue” and indicated that she was on the 

 

11The “Grisso scales” test, otherwise knowing as the Comprehension of Miranda Rights: Manual 

for Administration and Scoring, provides four instruments by which mental health professionals may 

assess the capacity of individuals to appreciate and understand the significance of their Miranda rights. 

These include (1) the comprehension of Miranda rights, (2) the comprehension of Miranda rights 

recognition, (3) the comprehension of Miranda vocabulary, and (4) the function of rights in 

interrogation. 
- 6 - 

floor when he pushed her underwear to the side of her leg and did so. The defendant then told 

K.W., “you won’t tell anyone.” K.W. immediately went and woke her mother and told her that 

the defendant had “messed with her down there.” 

¶ 22 On cross-examination, K.W. denied telling the police that the defendant touched her 

vagina with his hand and insisted that she had told them that he had used his tongue. She 

similarly admitted that she did not tell the emergency room physician that the defendant had 

used his tongue. When asked to explain why she did not tell the emergency doctor that the 

defendant had licked her instead of touched her, K.W. stated that she forgot. 

¶ 23 K.W.’s mother, Keafa W., next testified that, on the night in question at about 11 p.m., 

K.W. came into her room and told her “Shakey touched me,” patting her vaginal area to show 

where she had been touched. Keafa woke her husband up, and they went upstairs with K.W. to 

talk to K.W.’s grandparents. While they were upstairs, Keafa heard the front door close, and 

her husband observed the defendant leaving. 

¶ 24 On cross-examination, Keafa admitted that K.W. never told her that the defendant licked 

her and that she only accused him of “touching her.” Keafa also acknowledged that she did not 

call the police until the next afternoon, November 19, 2004, but stated she did not do so 

because she was waiting for K.W.’s grandparents to do so. 

¶ 25 Pediatric emergency physician Dr. Gail Allen testified that she examined K.W. on 

November 21, 2004, and that, during that exam, K.W. pointed at her vagina and told her that 

the defendant had “touched her.” Dr. Allen stated that K.W.’s physical examination was 

“normal” and that she found no signs of penetration, trauma, or “touching.” 

¶ 26 On cross-examination, Dr. Allen acknowledged that K.W. did not tell her that the 

defendant had touched her with his tongue. She also admitted that K.W.’s chart from the 

emergency room visit revealed that K.W. had told a resident that she was wearing shorts and 

not a skirt on the night of the incident. 

¶ 27 Chicago police officer Donald Story next testified that at about midnight on November 21, 

2004, he and his partner, Officer Elkins, arrested the defendant at his sister’s home. Once in the 

police car, Officer Elkins informed the defendant of his Miranda rights and asked him if he 

wanted to answer the police officers’ questions. According to Officer Story, the defendant 

agreed and asked what the arrest was about. Upon being told of the allegations, the defendant 

told the officers that K.W. “came into [his] room, sat on [his] lap, [and] rubbed around a little 

bit.” 

¶ 28 Assistant State’s Attorney (ASA) Dean Fugate testified that on November 22, 2004, he 

spoke to the defendant at Area 1 police station in the presence of two detectives, Mirandized 

the defendant and then took down his handwritten statement.12 That statement was published 

to the jury. In the statement, the defendant confirmed that he was 40 years old and that, in 

November 2004, he rented a room in the basement of 7036 South Aberdeen Avenue in 

Chicago, where he shared the basement with K.W. and her family. The defendant stated that on 

November 18, 2004, he was changing his clothes in his bedroom with his door open when 

K.W. walked into the room. He told K.W. to leave, but she would not. The defendant finished 

changing his clothes behind a curtain and then sat on his couch. He averred that K.W. then sat 

on his lap and “began grinding her butt on his lap.” The defendant stated that “his penis was 

 

12Because the defendant was illiterate, ASA Fugate handwrote the statement for the defendant, and 

the defendant “signed” each page. 
- 7 - 

hard” but claimed that he and K.W. were both clothed.13 He placed his right hand underneath 

K.W.’s clothes, touched her vagina, and “inserted his finger into [K.W.’s] vagina up to the first 

joint.” The defendant stated that he did not move his finger inside of K.W.’s vagina and that he 

kept it inside only for “one minute.” The defendant averred that K.W. said, “that feels good.” 

¶ 29 In his statement, the defendant further added that K.W. pulled her shorts and panties down 

to her knees before sitting on his lap. The defendant also stated that after K.W. got off his lap 

and pulled her pants up, she left the room and went upstairs with her parents into her 

grandparents’ room. The defendant then left the house out of the front door and went to his 

sister’s house. He also stated that he “felt bad that he touched the little girl.” 

¶ 30 In his statement, the defendant also indicated that he understands and writes English but 

that he cannot read. 

¶ 31 After the defendant’s statement was read into the record, the State rested. The defense 

presented no witnesses, and the parties proceeded with closing arguments. The jury returned a 

verdict of guilty. 

¶ 32 D. Original Sentencing Hearing 

¶ 33 On November 17, 2006, the trial court held a sentencing hearing, wherein the defendant’s 

sister, Irma Coty, testified regarding his cognitive disabilities. Irma testified that the defendant 

has been intellectually disabled since he was born, does “not understand what is going on,” and 

needs psychiatric treatment. The original presentence investigation report (PSI), which was 

admitted into the record, revealed that the defendant attended special education classes in the 

Chicago public school system up until the eighth grade and that he received Social Security 

disability from the State of Illinois because of his mental health. The original PSI noted that the 

defendant had undergone a behavioral clinical examination (BCX) as part of his evaluation for 

his fitness to stand trial and that the BCX was part of the court record. In addition, the original 

PSI revealed that the defendant could not read or write. The original PSI further revealed that 

the defendant’s sister Irma “takes care of him, handles his finances and helps him with his 

daily routine.” 

¶ 34 Despite the aforementioned evidence, based upon the defendant’s prior conviction for 

aggravated criminal sexual assault in case No. 88 CR 12137, 14 the court sentenced the 

defendant to natural life in prison, pursuant to the mandates of section 12-14.1(b)(2) of the 

Criminal Code (720 ILCS 5/12-14.1(b)(2) (West 2004)). In doing so, the trial judge noted that 

he would not have sentenced the defendant to natural life but that he was bound by statute to do 

so. As the court explained: 

“[T]he parties recognize that the court’s hands are tied because of the prior 

conviction for aggravated criminal sexual assault, which makes this conviction one for 

which he must receive a sentence of life imprisonment without parole. The facts of the 

cause certainly warrant a substantial sentence here. It would not be the sentence that the 

 

13ASA Fugate acknowledged that the defendant initially said that the victim’s pants were on 

throughout the incident. ASA Fugate subsequently claimed, however, that while giving the handwritten 

statement, the defendant changed his story and averred that the victim removed her pants during the 

incident. 

14The defendant committed this crime in 1988 when he was 24 years old. The victim in that case 

was nine. The defendant was sentenced to, and served, six years in prison. 
- 8 - 

court is required to give, had I any discretion, but I must follow the law nonetheless. 

The legislature has determined a second aggravated criminal sexual assault in one’s 

lifetime means what they say it means.”

¶ 35 E. Direct Appeal 

¶ 36 The defendant subsequently appealed his conviction, arguing that (1) he was denied his 

due process right to notice, (2) the testimony of Dr. Allen was inadmissible hearsay and 

violated his right to confrontation, (3) he was denied his right to a fair trial because of improper 

prosecutorial comments, and (4) he was denied his right to effective representation of counsel 

where counsel failed to object to the prosecutor’s comments and failed to impeached K.W.’s 

trial testimony with her prior inconsistent statements. See Coty I, slip order at 1. On March 27, 

2009, this court affirmed the defendant’s conviction and sentence. Id. at 25. His petition for 

leave to appeal to the Illinois Supreme Court was denied on September 30, 2009. See People v. 

Coty, 233 Ill. 2d 571 (2009). 

¶ 37 F. Petition for Relief From Judgment 

¶ 38 On March 8, 2012, the defendant filed a pro se section 2-1401 petition for relief from 

judgment (735 ILCS 5/2-1401 (West 2012)), alleging that his mandatory natural life sentence 

was unconstitutional because the trial court was prohibited from considering his individual 

characteristics (namely his intellectual disability) and the circumstances of the offense in 

ordering that sentence. The defendant acknowledged that his petition was untimely under the 

statute (id.) but claimed that his sentence was void and that therefore he could challenge it at 

any time. The defendant asked the trial court to vacate his sentence and remand for 

resentencing in the 6-to-30-years range. The State did not file any response to the defendant’s 

petition. 

¶ 39 On May 10, 2012, the trial court sua sponte dismissed the defendant’s petition. In its 

written order, the court first held that the petition was untimely because it was filed over five 

years after the defendant’s conviction on October 11, 2006, which was contrary to the mandate 

of the statute that it be filed within two years after the entry of final judgment. See id. The court 

also found that the defendant had failed to establish that the sentencing scheme under which he 

was sentenced to life imprisonment was unconstitutional. 

¶ 40 G. Appeal and Remand 

¶ 41 The defendant appealed the dismissal of his section 2-1401 petition to this court. On 

appeal, we affirmed in part, reversed in part, and remanded for further proceedings. See Coty 

II, 2014 IL App (1st) 121799-U, ¶ 78. In doing so, we first found that the trial court erred in 

sua sponte dismissing the defendant’s petition on the basis of timeliness. Id. ¶¶ 35-42. We then 

considered the merits of the defendant’s petition and held that, while the defendant had failed 

to properly state a facial challenge to the mandatory sentencing scheme under which he was 

sentenced to natural life in prison, that same scheme was unconstitutional as applied to him, 

under the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, 

§ 11) because of his intellectual disability and corresponding diminished culpability. Coty II, 

2014 IL App (1st) 121799-U, ¶¶ 43-75. In doing so, we recognized that the defendant was 

intellectually disabled with an IQ score somewhere between 55 and 65. Id. ¶ 66. As a result, 

under our prevailing social norms, his culpability was less than that of a person with normal 
- 9 - 

cognitive capacity. Id. In addition, we held, “it cannot be ignored that the offense [albeit 

serious] *** included a single, brief act of penetration that did not result in any physical injury 

to the victim.” Id. ¶ 67. We further noted that the encounter was neither orchestrated nor 

preplanned but “rather was seemingly impulsive, and the defendant expressed remorse over 

what he had done.” Id. Accordingly, we vacated the defendant’s sentence and remanded to the 

trial court for resentencing to give the trial court discretion to impose a term of years. Id. ¶ 78. 

¶ 42 H. Resentencing 

¶ 43 On remand, a new sentencing hearing was held on August 10, 2016. No new evidence was 

presented at that hearing regarding the defendant’s circumstances over the decade that had 

passed since he was first sentenced. Instead, prior to the hearing, the court noted that the 

appellate court had remanded the matter for resentencing, “indicating that Judge Toomin had 

observed during the course of the original trial that [the defendant] suffered from an 

intellectual disability.” At the hearing, the court stated it had been “tendered a large volume of 

materials,” which included “the transcript of the original trial, and the sentencing that 

occurred, incorporating the testimony of a doctor who testified regarding [the defendant’s] 

intellectual difficulties or disabilities. I am taking all that into account.” After questions from 

defense counsel, the court also acknowledged that it had reviewed the expert opinion given at 

the defendant’s motion to suppress hearing, as well as the new PSI.15

 

¶ 44 The parties then proceeded with very brief arguments. In aggravation, the State, inter alia, 

argued that the victim’s mother was “very troubled by the fact that the defendant had to be 

resentenced” and wanted “her feelings” represented to the court. The State further argued the 

offense was serious and that the defendant knew what he was doing when he approached the 

victim. The State therefore asked for “a significant number of years.” 

¶ 45 In mitigation, defense counsel argued that, in remanding for resentencing, this court had 

already found that the crime was a single contact lasting less than a minute and was impulsive 

rather than preplanned or orchestrated. Additionally, the defendant had expressed remorse 

over what he had done. Defense counsel further argued that it was undisputed that the 

defendant was intellectually disabled and therefore less culpable. Accordingly, defense 

counsel asked that the court give the defendant “a term of years that allows him upon sufficient 

punishment to resume some sort of life following incarceration.” 

¶ 46 After hearing arguments, the trial court sentenced the defendant to 50 years in prison to be 

served at 85%, followed by 3 years to life of mandatory supervised release (MSR). In entering 

this sentence, the court stated: 

“William, I’m going to consider today the evidence presented at trial, the [new] 

pre-sentence report, the evidence offered in aggravation, mitigation, the statutory 

factors in aggravation, mitigation, the financial impact of incarceration, the arguments 

 

15We note that the record contains two new PSI reports, one dated December 18, 2014, and the 

other dated March 21, 2016. These two PSI reports are almost identical and make no reference to the 

defendant’s intellectual disability or his behavior/actions in the last 10 years of incarceration. With 

respect to the defendant’s psychological health history, both new PSIs merely report that the defendant 

states that he has never been treated by a mental health professional. In addition, under the rubric 

“Attitudes/Values,” the new PSIs simply state that “[t]he defendant’s criminal background indicates an 

anti-social personality” and that “[h]is previous behavior reflects a lack of social conformity.”
- 10 - 

the attorneys just made here moments [a]go, and the assertions relative to the mother of 

the victim indicating that she still takes this case seriously, this was a serious case, and 

this was an offense committed by somebody whom this was not the first.” 

¶ 47 Defense counsel subsequently filed a motion to reconsider, arguing, inter alia, that (1) the 

sentence was excessive in light of the defendant’s background and the nature of the offense, 

citing the proportionate penalties clause, (2) the court improperly considered in aggravation 

matters that were implicit in the offense, and (3) the State failed to prove eligibility for an 

enhanced penalty or extended term. The trial court denied this motion, and the defendant now 

appeals. 

¶ 48 II. ANALYSIS 

¶ 49 On appeal, the defendant makes three arguments regarding his sentence. First, he asserts 

that the trial court abused its discretion in sentencing him to a 50-year extended term sentence, 

without properly considering that it was, in fact, imposing a de facto life sentence on a 

defendant with intellectual disabilities. Second, the defendant contends that the imposition of 

this de facto life sentence is unconstitutional as applied to him both under the eighth 

amendment and the proportionate penalties clause. For the reasons that follow, we agree with 

the latter contention. 

¶ 50 A. Abuse of Discretion 

¶ 51 At the outset we acknowledge our supreme court’s mandate that we consider 

nonconstitutional arguments before considering constitutional ones (In re E.H., 224 Ill. 2d 

172, 178 (2006)). Accordingly, we must first consider whether the trial court abused its 

discretion in sentencing the defendant to 50 years’ imprisonment in light of our prior mandate. 

A reviewing court will find an abuse of discretion only where the sentencing decision is 

fanciful, unreasonable, or arbitrary and no reasonable person would take the view adopted by 

the trial court. People v. Abrams, 2015 IL App (1st) 133746, ¶ 32.

¶ 52 Our decision to resentence the defendant was filed on August 28, 2014. There, presented 

with a mandatory natural life sentence, we held that resentencing was necessary under the 

proportionate penalties clause because the statutory scheme precluded the sentencing court 

from considering the unique characteristics of the intellectually disabled defendant. See Coty 

II, 2014 IL App (1st) 121799-U, ¶¶ 61-75. Our analysis, however, did not address whether a 

sentencing court must consider whether an intellectually disabled defendant has characteristics 

accompanying that disability that reduce his culpability. In addition, based on the law in 

existence at the time, our decision did not address whether, under either the state or federal 

constitutions, a de facto life sentence or a discretionary life sentence would be unconstitutional 

as applied to the intellectually disabled defendant in this case. In fact, our mandate nowhere 

directed that the trial court was required to consider the defendant’s intellectual disability and 

accompanying characteristics in issuing a sentence. Instead, we only stated, “the defendant, 

who is [intellectually disabled], should not have been sentenced to mandatory natural life 

imprisonment, without the trial court having had an opportunity to consider his mental 

capacity and the facts surrounding the commission of the offense.” (Emphasis added.) Id. ¶ 75. 

We therefore remanded “for resentencing before a court that has discretion to impose a 

term-of-years sentence.” Id. ¶ 77. 
- 11 - 

¶ 53 On remand, the trial court imposed a term of years within the appropriate sentencing 

range.16 

¶ 54 In doing so, the trial court acknowledged the defendant’s intellectual disability but found 

that other factors warranted a 50-year prison term. Although the trial court’s findings in this 

respect are, at best, sparse, the trial court explicitly stated it considered the evidence presented 

at the defendant’s trial and the parties’ arguments, both of which referenced the defendant’s 

disability at the time of his trial in 2006. Since the trial court did no more or less than we 

instructed it to do, we find no abuse of discretion. See Abrams, 2015 IL App (1st) 133746, 

¶ 33. 

¶ 55 B. Constitutional Arguments 

¶ 56 That said, however, we are now asked to determine for the first time whether the 

defendant’s 50-year prison term constitutes a de facto life sentence imposed in a manner 

inconsistent with the eighth amendment and the proportionate penalties clause. As shall be 

fully discussed below, we find that the trial court on remand imposed a discretionary de facto

life sentence without a record sufficient to assess the unique factors that can impact the 

culpability of the intellectually disabled. We hold that this procedure resulted in constitutional 

error. See Ill. Const. 1970, art I, § 11. 

¶ 57 The defendant challenges his sentence both under the eighth amendment and the 

proportionate penalties clause. As an initial matter, the State argues that the defendant has 

forfeited any constitutional arguments by failing to properly preserve them below but then 

concedes that our supreme court has urged that “the interests of judicial economy favor 

addressing [such] issue[s] on direct appeal rather than requiring defendant to raise [them] in a 

separate postconviction petition.” People v. Cregan, 2014 IL 113600, ¶ 18. The defendant 

responds that he has properly preserved the proportionate penalties issue by raising it in his 

postsentencing motion and urges us to consider his eighth amendment challenge under the 

plain error doctrine. While we would reach the same result under both the federal and state 

constitutions, because the defendant only raised the proportionate penalties argument in his 

motion to reduce his sentence, we will proceed with the merits of that claim alone. 

¶ 58 The Illinois Constitution states that “[a]ll penalties shall be determined both according to 

the seriousness of the offense and with the objective of restoring the offender to useful 

citizenship.” Ill. Const. 1970, art I, § 11. “[T]he framers [of the Illinois Constitution] intended 

*** to provide a limitation on penalties beyond those afforded by the eighth amendment.” 

People v. Gipson, 2015 IL App (1st) 122451, ¶ 69; People v. Harris, 2016 IL App (1st) 

141744, ¶ 40. And our supreme court has held that it is inaccurate to state that these two 

constitutional provisions are synonymous, although the relationship between them is certainly 

unclear. See People v. Clemons, 2012 IL 107821, ¶¶ 36-37, 40 (holding that the proportionate 

penalties clause “focuses on the objective of rehabilitation” and places greater limitations on 

the legislature’s ability to prescribe harsh sentences than the eighth amendment). But see 

People v. Patterson, 2014 IL 115102, ¶ 106. Nevertheless, our supreme court has never shied 

 

16As a Class X offender the defendant was punishable by a sentencing range between 6 and 30 

years. 730 ILCS 5/5-8-1(a)(3) (West 2004). In addition, because the victim was under 18 years of age, 

the defendant was further eligible for an extended term sentence up to 60 years’ imprisonment (id. 

§ 5-5-3.2(c)). 
- 12 - 

from applying eighth amendment precedent to decide proportionate penalties cases, and we see 

no reason why we should not do the same here. See, e.g., People v. Miller, 202 Ill. 2d 328, 339 

(2002) (hereinafter Leon Miller); see also Patterson, 2014 IL 115102, ¶ 106. 

¶ 59 To succeed on a proportionate penalties claim, the defendant here must show either (1) that 

the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense 

as to shock the moral sense of the community or (2) that similar offenses are compared and the 

conduct that creates a less serious threat to the public health and safety is punished more 

harshly. People v. Klepper, 234 Ill. 2d 337, 348-49 (2009); see also Leon Miller, 202 Ill. 2d at 

338. 

¶ 60 Our supreme court has repeatedly refused to define what kind of punishment qualifies as 

cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the 

community, because “as our society evolves, so too do our concepts of elemental decency and 

fairness which shape the ‘moral sense’ of the community.” Leon Miller, 202 Ill. 2d at 339 

(citing Trop v. Dulles, 356 U.S. 86, 101 (1958) (whether a punishment shocks the moral sense 

of the community is based upon an “evolving standard[ ] of decency that mark[s] the progress 

of a maturing society”)). 

¶ 61 Noting that our supreme court has repeatedly held that those “evolving standard[s] of 

decency *** mark[ ] the progress of a maturing society,” in Coty II, we reviewed the gravity of 

the defendant’s offense in connection with the severity of his sentence within our community’s 

evolving standard of decency. (Internal quotation marks omitted.) Coty II, 2014 IL App (1st) 

121799-U, ¶ 62. 

¶ 62 At the time we decided Coty II, that standard had evolved to prohibit the imposition of the 

death penalty on juveniles and intellectually disabled offenders, as well as to condemn the 

imposition of mandatory natural life imprisonment on juveniles. See id. ¶ 63 (citing Graham v. 

Florida, 560 U.S. 48, 68 (2010), Roper v. Simmons, 543 U.S. 551, 569-70 (2005), Miller v. 

Alabama, 567 U.S. 460, 488-89 (2012),17 and Atkins v. Virginia, 536 U.S. 304, 321 (2002)). 

Accordingly, in Coty II, we held that the statutory provision under which the defendant had 

been sentenced to mandatory natural life imprisonment, without the trial court having any 

discretion, was disproportionate as applied to him, so as to shock the moral sense of our 

community. Id. ¶¶ 64-69 (citing Leon Miller, 202 Ill. 2d at 339-42). 

¶ 63 Since our decision in Coty II, our community’s standards of decency have considerably 

evolved, albeit in the context of juvenile defendants and the eighth amendment (U.S. Const., 

amend. VIII). First, in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), the 

 

17Roper held that the eighth amendment prohibited death penalty sentences for juveniles who 

commit murder. Roper, 543 U.S. at 578-79. Graham held that the eighth amendment prohibited 

mandatory life sentences for juveniles who commit nonhomicide offenses. Graham, 560 U.S. at 82. 

Miller held that the eighth amendment prohibited mandatory life sentences for juveniles who commit 

murder. Miller, 567 U.S. at 489-90. All three decisions recognized the following general difference 

between juveniles and adults, which render juveniles less morally reprehensible: (1) lack of maturity 

and underdeveloped sense of responsibility; (2) vulnerability and susceptibility to negative influences 

and outside pressures; and (3) a yet unfully formed character, which makes them more malleable and 

their malfeasance less indicative of irretrievable depravity. Graham, 560 U.S. at 68; Roper, 543 U.S. at 

569-70. In Miller, the Supreme Court further held that “children are constitutionally different from 

adults for purposes of sentencing” and that a trial court must therefore be able to consider mitigating 

factors in determining whether to impose a natural life sentence. Miller, 567 U.S. at 471. 
- 13 - 

United States Supreme Court held that state courts must give Miller effect in collateral 

proceedings and that, under Miller, life imprisonment without parole is unconstitutional for 

juvenile offenders “whose crimes reflect the transient immaturity of youth” “for all but the 

rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at ___, 

136 S. Ct. at 734. 

¶ 64 Next, in People v. Reyes, 2016 IL 119271, ¶ 9, our supreme court interpreted the holding of 

Miller to apply to de facto as much as de jure life sentences. Noting that Miller’s “holding 

required that life-without-parole sentences be based on judicial discretion rather than statutory 

mandates” (id. ¶ 4), our supreme court held: 

“A mandatory term-of-years sentence that cannot be served in one lifetime has the 

same practical effect on a juvenile defendant’s life as would an actual mandatory 

sentence of life without parole—in either situation, the juvenile will die in prison. 

Miller makes clear that a juvenile may not be sentenced to a mandatory, unsurvivable 

prison term without first considering in mitigation his youth, immaturity, and potential 

for rehabilitation.” Id. ¶ 9.

¶ 65 In addition our supreme court held: 

“ ‘[T]he teachings of the Roper/Graham/Miller trilogy require sentencing courts to 

provide an individualized sentencing hearing to weigh the factors for determining a 

juvenile’s “diminished culpability ***” when, as here, the aggregate sentences result in 

the functional equivalent of life without parole. To do otherwise would be to ignore the 

reality that lengthy aggregate sentences have the effect of mandating that a juvenile 

“die in prison even if a judge or jury would have thought that his youth and its attendant 

characteristics, along with the nature of his crime, made a lesser sentence *** more 

appropriate.” [Citation.] Such a lengthy sentence “ ‘means denial of hope; it means that 

good behavior and character improvement are immaterial; it means that whatever the 

future might hold in store for the mind and spirit of [the juvenile convict], he will 

remain in prison for the rest of his days.’ ” [Citation.] That is exactly the result that 

Miller held was unconstitutional. [Citation.]’ ” Id. (quoting Bear Cloud v. State, 2014 

WY 113, ¶ 33, 334 P.3d 132 (Wyo. 2014)). 

¶ 66 Subsequently, in People v. Holman, 2017 IL 120655, our supreme court interpreted Miller

to apply to discretionary, as much as mandatory, natural life sentences. Id. ¶ 40. The court 

there held that “[l]ife sentences, whether mandatory or discretionary, for juvenile defendants 

are disproportionate and violate the eighth amendment, unless the trial court considers youth 

and its attendant characteristics.” (Emphasis added.) See id. (interpreting Miller, 567 U.S. at 

465, and Montgomery, 577 U.S. at__, 136 S. Ct. at 736). Noting that Illinois courts have 

always held that age is a complex sentencing factor, our supreme court instructed that, before 

imposing either a mandatory or a discretionary natural life sentence on a juvenile, the trial 

court must first determine that the juvenile’s conduct showed “irretrievable depravity, 

permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation,” 

by considering the characteristics specific to juveniles articulated by the Supreme Court in 

Miller. Id. ¶ 46.18

 

 

18Those characteristics include, but are not limited to, the following factors: (1) the juvenile 

defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, 

impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family and 
- 14 - 

¶ 67 Aside from our supreme court’s holdings in Holman and Reyes, since our decision in Coty 

II numerous panels of our appellate court have explicitly held that discretionary de facto life 

sentences for juveniles are unconstitutional under the eighth amendment. See, e.g., People v. 

Morris, 2017 IL App (1st) 141117, ¶ 30; People v. Nieto, 2016 IL App (1st) 121604, ¶¶ 42-43, 

pet. for leave to appeal pending, No. 120826 (filed July 8, 2016); People v. Smolley, 2018 IL 

App (3d) 150577, ¶¶ 21-22; People v. Ortiz, 2016 IL App (1st) 133294, ¶ 24, pet. for leave to 

appeal pending, No. 121578 (filed Dec. 30, 2016); People v. Buffer, 2017 IL App (1st) 

142931, ¶¶ 62-63, appeal allowed, No. 122327 (Ill. Nov. 22, 2017); People v. Sanders, 2016 

IL App (1st) 121732-B, ¶¶ 25-27, pet. for leave to appeal pending, No. 121275 (filed Oct. 12, 

2016). But see People v. Perez, 2018 IL App (1st) 153629, ¶¶ 37-38; People v. Hoy, 2017 IL 

App (1st) 142596, ¶ 46, pet. for leave to appeal pending, No. 122911 (filed May 9, 2018); 

People v. Jackson, 2016 IL App (1st) 143025, ¶¶ 54-58, pet. for leave to appeal pending, No. 

121527 (filed Nov. 3, 2016); People v. Evans, 2017 IL App (1st) 143562, ¶¶ 14-18, pet. for 

leave to appeal pending, No. 122701 (filed Sept. 19, 2017). 

¶ 68 Accordingly, as of today, our community’s standards of decency appear to have evolved to 

prohibit the imposition of de jure and de facto mandatory and discretionary life sentences for 

juveniles, where procedurally the court fails to consider the attendant characteristics of youth. 

See Reyes, 2016 IL 119271, ¶ 9; Holman, 2017 IL 120655, ¶ 46; Buffer, 2017 IL App (1st) 

142931, ¶¶ 62-63. 

¶ 69 In the midst of significant juvenile jurisprudence, however, one must not forget that such 

jurisprudence began with Atkins and the Court’s concern with the intellectually disabled. See 

Miller, 567 U.S. at 483-84, 509 (citing Atkins, 536 U.S. at 316, 342). In Coty II, we already 

held that under Atkins adults with intellectual disabilities deserve special treatment in a 

proportionality analysis (see Coty II, 2014 IL App (1st) 121799-U, ¶¶ 61-75). In doing so, we 

only implied that adults with intellectual disabilities should be treated similarly to minors. Id.

We now unequivocally hold that they should. 

¶ 70 Intellectually disabled individuals, just like juveniles, are less culpable, where the 

deficiencies associated with intellectual disability “diminish their personal culpability.” 

Atkins, 536 U.S. at 318. Indeed, “clinical definitions of [intellectual disability] require not only 

subaverage intellectual functioning, but also significant limitations in adaptive skills such as 

communication, self-care, and self-direction that became manifest before age 18.” Id.; see also 

730 ILCS 5/5-1-13 (West 2014) (defining intellectual disability as “sub-average general 

intellectual functioning generally originating during the developmental period and associated 

with impairment in adaptive behavior reflected in delayed maturation or reduced learning 

ability or inadequate social adjustment”). Intellectually disabled persons “frequently know the 

difference between right and wrong and are competent to stand trial,” but “by definition[,] they 

have diminished capacities to understand and process information, to communicate, to abstract 

from mistakes and learn from experience, to engage in logical reasoning, to control impulses, 

and to understand others’ reactions.” Atkins, 536 U.S. at 318. 

 

home environment; (3) the juvenile defendant’s degree of participation in the crime and any evidence 

of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, 

including his inability to deal with police officers or prosecutors and his incapacity to assist his own 

attorneys; and (5) the juvenile defendant’s prospects for rehabilitation. See Miller, 567 U.S. at 477-78. 
- 15 - 

¶ 71 Additional risks accompanying the unique characteristics of the intellectually disabled are 

the possibility that they will unwittingly confess to crimes they did not commit, their lesser 

ability to give their counsel meaningful assistance, and the fact that they are “typically poor 

witnesses, and their demeanor may create an unwarranted impression of lack of remorse for 

their crimes.” Id. at 321. In addition, “there is abundant evidence that they often act on impulse 

rather than pursuant to a premeditated plan, and *** are followers rather than leaders.” Id. at 

318. 

¶ 72 As such, just as “the distinctive attributes of youth diminish the penological justifications 

for imposing the harshest sentences on juvenile offenders” (Miller, at 567 U.S. at 472), the 

distinctive attributes of the intellectually disabled, who are by their very nature less culpable, 

diminish “the interest in seeing that the offender gets his ‘just deserts’ ” (Atkins, 536 U.S. at 

319). 

¶ 73 Similarly, with respect to deterrence, the same cognitive and behavioral impairments that 

make intellectually disabled individuals less morally culpable make it less likely that they can 

process the fact that their behavior exposes them to severe punishment. Id. at 320. 

¶ 74 Because intellectually disabled offenders are so unlikely to process the possibility of 

receiving a sentence equivalent to natural life imprisonment, they are unlikely to control their 

conduct based on that information. Id. at 319-20. Simply put, an intellectually disabled 

defendant is far less likely than an average adult to understand the permanence of life in prison, 

let alone weigh the consequences of such a life against the perceived benefit of criminal 

conduct. As such, just as with minors, it is less likely that the possibility of facing such an 

extreme sanction will deter an intellectually disabled person from committing a crime. Id.

¶ 75 Accordingly, since we hold today that minors and adults with intellectual disabilities 

should be treated similarly in a proportionality analysis, we see no reason why, under our 

community’s evolving standards of decency, the prohibition against the imposition of 

discretionary de facto life sentences without the procedural safeguards of Miller and its 

progeny should not be extended to intellectually disabled persons where the record shows that 

the trial court did not take into account those characteristics accompanying an intellectual 

disability as articulated in Atkins, so as to show “irretrievable depravity, permanent 

incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Holman, 

2017 IL 120655, ¶ 46. As Atkins articulated, those attendant characteristics include, but are not 

limited to, an intellectually disabled person’s diminished capacity (1) to understand and 

process information, (2) to communicate, (3) to abstract from mistakes and learn from 

experience, (4) to engage in logical reasoning, (5) to control impulses, and (6) to understand 

others’ actions and reactions, so as to be more susceptible to manipulation and pressure. Atkins, 

636 U.S. at 318. 

¶ 76 In reaching this decision, we acknowledge that thus far our supreme court has declined to 

extend the Miller line of cases to adults. See People v. Thompson, 2015 IL 118151, ¶¶ 8-21. 

That decision, however, did not involve intellectually disabled defendants. Moreover, we find 

that a different determination is warranted here. That is because the Miller line of cases began 

with Atkins, and explicitly relied on Atkins’s rationale pertaining to the intellectually disabled, 

to expand the law to juvenile defendants. See, e.g., Miller, 567 U.S. at 483-84, 509 (citing 

Atkins, 536 U.S. at 316, 342); Roper, 543 U.S. at 560, 563-576 (discussing Atkins, 536 U.S. 

304). As such, it is more accurate to state that Miller and its progeny are an extension of Atkins. 
- 16 - 

¶ 77 Moreover, since we agree with those decisions that hold that the Illinois proportionate 

penalties clause is broader than the eighth amendment (see Clemons, 2012 IL 107821, ¶ 39; 

Gipson, 2015 IL App (1st) 122451, ¶¶ 69-70; Harris, 2016 IL App (1st) 141744, ¶ 38) and 

requires consideration of the constitutional objective of “restoring an offender to useful 

citizenship” (internal quotation marks omitted) (Leon Miller, 202 Ill. 2d at 338), an objective 

that is “much broader than defendant’s past conduct in committing the offense” (see Gipson, 

2015 IL App (1st) 122451, ¶ 72), we find that the procedural safeguards originating with 

Atkins, and created by Miller and its progeny, are applicable to intellectually disabled 

defendants under our constitution. 

¶ 78 We now turn to the sentencing of this defendant. As already noted above, the defendant 

here was convicted of predatory criminal sexual assault (a Class X felony) punishable at the 

time of his offense by a sentencing range of 6 to 30 years’ imprisonment. 720 ILCS 5/12-14.1 

(West 2004) (recodified as 720 ILCS 5/11-1.40 (West 2012)); 730 ILCS 5/5-8-1(a)(3) (West 

2004). The defendant was also eligible for an extended term sentence up to 60 years’ 

imprisonment because the victim was under 18 years of age (730 ILCS 5/5-5-3.2(c) (West 

2004)). Furthermore, under “truth in sentencing” statutes, the defendant was required to serve 

at least 85% of this sentence, depending upon his conduct, while serving that sentence. See 

People v. Harris, 2012 IL App (1st) 092251, ¶ 24 (noting that the “truth-in-sentencing” 

statutes do “not change the sentence actually imposed ***. [Citation.] Rather, [they] 

determine[ ] the percentage to be actually served, which in turn depends upon the conduct of 

the defendant while serving that sentence.”). 

¶ 79 On remand, the trial court below sentenced the 52-year-old defendant to 50 years’ 

imprisonment. According to the IDOC website, of which we may take judicial notice (see 

People v. Sanchez, 404 Ill. App. 3d 15, 17 (2010) (finding that this court can take judicial 

notice of the IDOC website); see also Buffer, 2017 IL App (1st) 142931, ¶ 62), with time 

served, the defendant’s earliest release (parole) date will be March 26, 2049, at which point he 

will be 84 years old. The defendant’s actual discharge date is set for March 27, 2052, at which 

point he will be 88. As shall be explained further below, under our prior holdings, and contrary 

to the State’s assertion, there can be no doubt that this sentence is equivalent to condemning 

the defendant to natural life imprisonment. See Buffer, 2017 IL App (1st) 142931, ¶ 62.

¶ 80 We acknowledge that our supreme court has not yet defined what constitutes a de facto life 

sentence, apart from stating that this is a sentence that is “unsurvivable” and “cannot be served 

in one lifetime” (Reyes, 2016 IL 119271, ¶¶ 8-9), and that our appellate courts appear to be 

split on this issue,19 and disagree as to whether it is even appropriate for a court of review to 

 

19The following courts have found de facto life sentences: Morris, 2017 IL App (1st) 141117, ¶ 30 

(discretionary 100 years); Nieto, 2016 IL App (1st) 121604, ¶¶ 42-43, pet. for leave to appeal pending, 

No. 120826 (filed July 8, 2016) (discretionary 78 years); Smolley, 2018 IL App (3d) 150577, ¶¶ 21-22 

(discretionary 65 years); Ortiz, 2016 IL App (1st) 133294, ¶ 24, pet. for leave to appeal pending, No. 

121578 (filed Dec. 30, 2016) (discretionary 60 years); Buffer, 2017 IL App (1st) 142931, ¶¶ 62-63, 

appeal allowed, No. 122327, (Ill. Nov. 22, 2017) (discretionary 50 years); Sanders, 2016 IL App (1st) 

121732-B, ¶¶ 25-27, pet. for leave to appeal pending, No. 121275 (filed Oct. 12, 2016) (discretionary 

sentence totaling 100 years, or “at least 49 years” with good-conduct credit). Conversely, the following 

courts have not found de facto life sentences: Perez, 2018 IL App (1st) 153629, ¶¶ 37-38 (discretionary 

53 years); Hoy, 2017 IL App (1st) 142596, ¶ 46, pet. for leave to appeal pending, No. 122911 (filed 

May 9, 2018) (discretionary 52 years); Jackson, 2016 IL App (1st) 143025, ¶¶ 54-58, pet. for leave to 
- 17 - 

reflect on questions of biology and statistics (see Harris, 2016 IL App (1st) 141744, ¶ 52). 

Nonetheless, this exact panel has previously held that a 50-year sentence imposed on a 

16-year-old juvenile was a de facto life sentence. Buffer, 2017 IL App (1st) 142931, ¶ 62. In 

doing so, we relied on the decision in Sanders, 2016 IL App (1st) 121732-B, wherein the court 

looked to the United States Sentencing Commission’s Preliminary Quarterly Data Report, to 

determine the average life expectancy of a prisoner and found that a “ ‘person held in a general 

prison population has a life expectancy of about 64 years’ ” and that this estimate “ ‘probably 

overstate[s] the average life expectancy’ ” for those committed “ ‘to prison for lengthy 

terms.’ ” Buffer, 2017 IL App (1st) 142931, ¶ 59 (quoting Sanders, 2016 IL App (1st) 

121732-B, ¶ 26). We also noted that Sanders quoted a study that showed that each year in 

prison resulted in a two-year decline in life expectancy, resulting from “high levels of violence 

and communicable disease, poor diets, and shoddy health care *** behind bars,” and that 

subsequent courts have found that this “was not surprising given the harshness of a lifetime 

spent in a state penitentiary.” (Internal quotation marks omitted.) Id. (quoting Sanders, 2016 IL 

App (1st) 121732-B, ¶ 26); Harris, 2016 IL App (1st) 141744, ¶ 53. We therefore concluded 

that a 50-year discretionary sentence imposed on a 16-year-old juvenile, which permitted his 

release on parole at the earliest at age 66, which was 2 years over his life expectancy, was the 

equivalent of an unconstitutional mandatory natural life sentence. See Buffer, 2017 IL App 

(1st) 142931, ¶ 64. 

¶ 81 Applying the rationale of Buffer and Sanders to the facts of this case, we are compelled to 

conclude that the intellectually disabled defendant, whose average life expectancy is at best 

6420 but who will not be released until he is at least 84, has similarly been condemned to spend 

the rest of his days in prison. This “unsurvivable” sentence is equivalent to natural life 

imprisonment, a sentence which the original sentencing judge, who presided over the trial, 

heard all the evidence, and viewed all the witnesses, believed was inappropriate. See Reyes, 

2016 IL 119271, ¶¶ 8-9. 

¶ 82 Moreover, the record indicates that the trial court was not presented with current evidence 

of and, thus, could not have fully considered the attendant characteristics of the defendant’s 

intellectual disability. 

¶ 83 In Holman, our supreme court held that in determining whether an error occurred in a 

defendant’s original sentence, a reviewing court “must look at the cold record to determine if 

the trial court considered [the attendant characteristics of youth] at the defendant’s original 

sentencing hearing.” Holman, 2017 IL 120655, ¶ 47. As the court explained, “the only 

evidence that matters” is the evidence at the “defendant’s original sentencing hearing.” Id.

Here, however, we are not determining whether an error occurred in the defendant’s original 

 

appeal pending, No. 121527 (filed Nov. 3, 2016) (discretionary 50 years); or People v. Applewhite, 

2016 IL App (1st) 142330, ¶ 16, pet. for leave to appeal pending, No. 121901 (filed Feb. 10, 2017) 

(mandatory 45 years); Evans, 2017 IL App (1st) 143562, ¶¶ 14-18, pet. for leave to appeal pending, 

No. 122701 (filed Sept. 19, 2017) (discretionary 90-year total sentence, or 45 years with day-for-day 

good-conduct credit). 

20The defendant on appeal urges us to take judicial notice of the Central Intelligence Agency’s 

website, which states that the average life expectancy of a male in the United States is 77 years. We 

need not do so, however, since we may rely on our prior holdings, which refer to the more specific life 

expectancy of the prison population. See Buffer, 2017 IL App (1st) 142931, ¶ 59; Sanders, 2016 IL App 

(1st) 121732-B, ¶ 26. 
- 18 - 

sentence, since we have already determined that error did occur. Instead, we are deciding 

whether constitutional error occurred on resentencing. Under these circumstances, the “cold 

record” before us is the one from the resentencing hearing. 

¶ 84 That “cold” record does not establish that the trial court had a proper opportunity to 

consider, much less that it did consider, the attendant characteristics of the defendant’s 

intellectual disability and determined that the defendant was irretrievably depraved, 

permanently incorrigible, or irreparably corrupted beyond any possibility of rehabilitation so 

as to require a de facto life sentence. See id. ¶ 46. 

¶ 85 In Coty II, we noted that it was undisputed that, at the time of the offense, the defendant 

was intellectually disabled with an IQ score somewhere between 55 and 65 and that, as such, 

under our prevailing social norms his culpability was less than that of a person with normal 

cognitive capacity. Coty II, 2014 IL App (1st) 121799-U, ¶ 66 (citing Atkins, 536 U.S. at 305). 

We further found that while we in no way diminished the seriousness of the offense, that 

offense included a single, brief act of penetration that did not result in any injury to the victim. 

Id. ¶ 67. In addition, we found that the encounter was an isolated event and that it was neither 

preplanned nor orchestrated but, rather, seemingly impulsive. Id. We further stated that we 

were troubled by the fact that the original sentencing judge, who had the benefit of observing 

the defendant throughout trial, had expressed reservations about imposing a life sentence under 

these particular circumstances. Id. ¶ 68. We finally noted that, despite the defendant’s 

cognitive impairments and the brief and limited, albeit serious, nature of his offense, the 

defendant had nonetheless been sentenced to the harshest penalty prescribed by our laws, 

which our jurisprudence dictates should be reserved for the most severe offense—murder. Id.

¶ 69 (citing People v. Brown, 2012 IL App (1st) 091940, ¶ 68, and Kennedy v. Louisiana, 554 

U.S. 407 438 (2008)). 

¶ 86 Although on remand from Coty II, the resentencing court was in possession of the trial 

record created in 2006, that record was void of any information about the state of the attributes 

of the defendant’s intellectual disability in 2016. The new PSI ordered for purposes of 

resentencing contained no reference whatsoever to the defendant’s intellectual disability. 

Instead, it noted that the defendant had stated that he had never been treated by a mental health 

professional. In this respect, we find very troubling that the public defender did not attempt on 

remand to have the defendant reevaluated or to introduce any evidence that would enlighten 

the trial court as to whether the defendant had been receiving any special services for his 

disability in the last 10 years of his incarceration or whether those services had any effect. As 

such, the resentencing court was without an iota of evidence from which to determine whether 

the defendant’s cognitive ability, behavior, adaptability, or ability to comprehend the 

consequences of his actions had changed for better or worse in the 10 years of his 

imprisonment. Therefore, the trial court was without the necessary facts from which to 

determine whether the defendant could be restored to useful citizenship or whether he was so 

irretrievably depraved and of such danger of recidivism that a natural life sentence was 

warranted. Under these circumstances and in the context of our community’s clearly evolving 

standards of decency, we are compelled to conclude that the imposition of a 50-year de facto

life sentence on this particular defendant, without the procedural safeguards of Atkins, Miller, 

and its progeny, was a penalty so wholly disproportionate that it violated the moral sense of our 

community. See Gipson, 2015 IL App (1st) 122451, ¶ 72 (“[T]he proportionate penalties 

clause demands consideration of the defendant’s character by sentencing a defendant with the 
- 19 - 

objective of restoring the defendant to useful citizenship, an objective that is much broader 

than defendant’s past conduct in committing the offense.”). Accordingly, we find the sentence 

unconstitutional under the proportionate penalties clause (Ill. Const. 1970, art. I, § 11). 

¶ 87 We therefore vacate the defendant’s sentence and remand for a new sentencing hearing 

before a different judge. On remand, we urge the public defender to have the defendant’s 

mental health evaluated and to provide the court with as much information as possible as to the 

defendant’s behavior and progress, or lack thereof, while in prison. We also instruct the trial 

court on remand to give serious consideration to the attendant characteristics of the defendant’s 

intellectual disability and the fact that this disability “diminish[es] both [his] culpability and 

the need for retribution” particularly in the context of this, a nonhomicide offense. Gipson, 

2015 IL App (1st) 122451, ¶ 74; see also Atkins, 536 U.S. at 320. In addition, we remind the 

trial court that, should it determine that there is a bona fide doubt of the defendant’s fitness to 

be sentenced, it has the discretion to order a new fitness hearing to determine whether the 

defendant should continue to be housed in the general prison population or if he needs to be 

placed in a mental health facility where he can be treated for his intellectual disability before 

any sentence can even be imposed. 725 ILCS 5/104-11 (West 2016). Furthermore, because the 

defendant has already spent nearly 15 years in prison and this is the second time we are 

vacating his sentence, we instruct the trial court to act with the utmost expediency. 

¶ 88 III. CONCLUSION 

¶ 89 For all of the aforementioned reasons, we vacate the defendant’s sentence and reverse and 

remand for a new sentencing hearing, with instructions. 

¶ 90 Sentence vacated. 

¶ 91 Reversed and remanded with instructions.