## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . William s , 2012 IL App (1st) 111145

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. CARLWI L L IAMS, Defe ndant-Appe llant.

District & N o. First District, Second D ivision Docke t Nos. 1-11-1145, 1-11- 2251 cons.

Opinion filed Opinion withdrawn Modified opinion filed November 27, 2012
Dec ember

11, 2012
Dec ember

12, 2012

Held (Note : This s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The dismiss al of defe ndant’s third and fourth succe ssive postconviction petitions was rever sed and the cause was rema nded for a det er mination of whether defe ndant was entitled to a new hear ing pursuant to his claim of actual innocenc e in his third petition, and i f a new hearing is denied, the trial court is direc ted to hold a new sentenc ing hear ing pursuant to the fourth petition, wh i ch alleg ed that the mandatory life sentenc e without parole imposed for an offe nse committed when he was a juvenile violated the eighth amendment.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 94-CR-4431-04; the Hon. Ang ela Muna

ri Petrone, Judge , presiding

.

J udg ment Reverse d and ca use re manded.Counsel on

Appea l Michae l L

. Skla r, P

. C

. (Mi chae l L

. Sklar, of counsel), and Ung are tti & H a r ris L L P (John Ruskusky
, Timothy E. Horton, Maura M. McInty re, a n d Br ittany A. Smith, of counsel), both of Chicag o, for a ppellant.

Anita M. Al v ar ez, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Michelle Katz, Wi l l i am L

. Tofene tti, and Mary P. Nee dham, Assistant State’s Attorney s, of counse l), for the People.

Panel PRES I DI NG J USTI CE HARRI S delivere d the judgme nt of the court, with opinion.
J ustices Quinn and Connors c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Her e we are called upon to deter mine wh et h er the denial of defe ndant Carl Will iams’ petition for an evidentiar

y hear ing to show actua l innocenc e should be reve rsed. We are also require d to deter

mine whether the United States Supreme Court’s holding in Miller v. Alabama
, 567 U.S. ___, 132 S. Ct. 2455 (2012), prohibiting mandatory life-without-pa role
sentenc es for

juveniles should be re troac tively applied. We answe r yes to both issues. ¶ 2 Def

endant appe al s t h e d ismiss al of two of his succe ssive petitions (third and four th petitions) for relief under the Post-Convi ction Hea ring Act (Ac t) (725 I L CS 5/122-1 et seq. (West 2010)). In his third petition, which the circ uit court revie wed as a second- stag e proce eding under the Act, defe ndant made a claim of actua l innocenc e, and claimed that the State withheld exculpatory evidenc e in violation of Brady v. Maryland
, 373 U.S. 83 (1963), and that he was arr ested without probable cause

. The circ uit court g rante d the State’s motion
to dismiss his third petition. In his motion for leave to file his fourth petition, defe ndant alleg ed that his mandatory life sentenc e is unconstitutional. The circ uit court denied him leave to file his fourth petition. At issue is whether defe ndant has made a substantial showing that his constitution al rig hts have been violated such that he is entitled to an evidentiar y hear ing on his claims in his third petition; and whether defe ndant has satisfied the cause -andprejudice require ments codified under section 122-1(f ) of the Act such that the circ uit court

err ed in denying his motion for leave to file his fourth petition challeng ing his sentenc e. 725 I L CS 5/ 122-1(f

) (West 2010).

¶ 3 J URI SDI CTI ON ¶ 4 On Marc h 15, 2011, the circ uit c ourt g rante d the State’s motion to di smiss defendant’ s third petition. Def

endant timely appea led on Ap ri l 1 2
, 2011. On that same day
, defe ndant

-2-soug ht leave from the circ uit court to file his fo u rth petition, which sought to modify his

sentenc e. On J une 28, 2011, the circ uit court denied defe ndan t l ea ve to file his fourth petition. Def

endant timely appea led on J uly 2 8
, 2 0 1 1

. Acc ording ly
, this court has jurisdiction pursuant to I llinois Supreme Court Rules 602, 606(a) , and 651. I ll. S. C t. R. 602 (ef f. May 30, 2008); R. 606 (ef

f. Mar. 20, 2009); R. 651 (ef f. Apr. 26, 2012). On August 30, 2011, this
court g rante d defe ndant’s motion to consolidate the appea ls under case number 1-11-1145.

¶ 5 BA CKGROUND ¶ 6 All pertinent factual background concerningdefe ndant’s trial a nd initial appeal is well stated in this court’s 1999 opinion. People v. W illiams
, 305 I ll. App. 3d 517 (1999). Pertinent fac tual background conce rning defe ndant’s first three postconviction petitions is well stated in this court’s 2009 opinion. People v. W illiams
, 392 I ll. App. 3d 359 (2009). Be low, we will discuss releva

nt fac ts from defe ndant’s third petition and fr om this court’s 2009 opinion.

¶ 7 Def endant’ s Third Petition ¶ 8 In J anuar

y of 2008, defe ndant, repr esente d by counsel, filed a motion for leave to file his third petition. In his third petition, based on new aff idavits and fac ts he obtained, he argued he should be grante d leave to file his petition in order to preve nt a fundame ntal miscarr iag e of j ustice based on his actua l innocenc e. S pecif ically
, he argued that the newly discovere d evidenc e, i.e.
, the descr iptions of the alleg ed fifth perpe trator provided by his codef endants in their aff

idavits, combined with his ex-girlf riend Tameka J ohnson’s aff idavit which provided an alibi for defe ndant, supported his claim of actua l innocenc e. He also argued that the State withheld exculpatory evidenc e from him in violatio n o f his right to due proce ss under Brady v. Maryland
, 373 U.S. 83 (1963), by not disclosing statements favor able to him from three out of his four codef endants, and that there was insufficient fac tual justification

1
to sup p o rt probable cause for his war rantless arr est. Def

endant alleg ed he was not able to discover the new evidenc e sooner beca use he was hamper ed by the d ifficulties of communicating betwee n prisons, by his codef end a nts’ and his ex-girlf

riend’s ref

usals to help him, and beca

use the witness who told the police about defe ndant’s wher eabouts, C l i nton Taylor, g ave the police an ali as, i.e., L arr y McGe e. To support his petition, defe ndant attache d the aff

idavits of his codef

endants Z aric e J ohnson, Stanley Hamelin, and Scott Chambers; his attorney at trial, Stephen Richards; and his ex-girlf riend Tameka J ohnson; his

own aff idavit; an identity sheet from the I llinois Depa rtment of Correc tions (I DOC); an aff idavit showing his attempts to secur e the newly discovere d evidenc e; and the unpublished order denying his sec ond petition. 2 ¶ 9 Codefenda

nt J ohnson attested that there wer e four other perpe tr at o rs b es ides himself

Acco rdi ng to de fe nda nt’ s t hir d pe ti ti on, h is fo urt h codef end ant , Anthony Brown , refu sed 1
to pro vide de fe nda nt ass is ta nce bec aus e he is pur sui ng his own a ctual in noc enc e c la im.

Peop le v. W

il li ams , No. 1

- 04- 2153 (20 06) (un publ is hed ord er unde r Supre m e Court Rule 2 23)

.
-3-involved in the crime for which he was convicted; Hamelin, Br own, Chambers, and a person

that he did not know (hereinaf ter, the fifth person). At the t ime of t he incident, he sat next to t h e fifth person in the backse at of Br own’s car for approximately an hour or two. He descr ibed the fifth person’ s appea ranc e as “ver

y dark skinned, wore a full untrimmed bear d,

was of slim athletic build and over six fee t in heig ht.” He reme mbere d the fifth perpe trator’ s heig ht beca

use “he had much difficulty g etting his larg e body out of the back seat of the ***

car ” and that “[o] nce out of the ca r his frame was muc h taller than I would have stood and I ’m 5’9”.” Once J ohnson was arr ested, he was separ ated from his codef endants and “lef

t in

a dark room for what seeme d like sever al hours.” He was shown photogr aphs by the police of the other perpe trator. He identified Hamelin, Br o wn , an d Chambers, but was unable to identify the photogr aph of the alleg ed fifth perpe trator. J ohnson attested, “I repe atedly told the interrog at i n g d et ec t ives that the person in the rema ining photo was not the tall, dark skinned, bear ded man that sat next to me in Br own’s car ,” and that he did not know the
person in the photogr aph. The police “insisted” he was wrong and told him that Hamelin and Chambers had identified the fifth perpe trator as the person shown in the photogr aph. J ohnson also attested that the pol ice hit and sl apped him, and at one point hit him with a telephone book. J ohnson agree d to sign a confe ssion implicating the alleg ed fifth perpe trator to end the phy sical abuse from the police and to protec t himself. He insisted that the police did not have the corr ect fifth perpe trator, but the police and assistant State’s Attorney (ASA) told him “it didn’t matter beca

use the others had identified him.” J ohnson also attested that he did not know who “L arr

y McGe e” w as, and he was not in the ca r with him when he w as ar rested. ¶ 10 J ohnson acknow ledg ed th at he did rec eive communications from defenda nt askingfor help, but did not r espond “bec ause I didn’t want to ope n up this very painful chapte r in my life and I was very bitter about what happene d to me.” He also doubted that he would be able
to help or that defe ndant’s ef forts would be suc cessf

ul. He did not agree to help defendant until he met defe ndant’s brother in prison “[s] ometime in 20 0 1 o r 2 0 0 2

. ” Def endant’ s brother

was rele ased, but he did not hear from defe ndant “for another y ear or so.” He “didn’t respond for the same rea sons as befor e.” A friend of defe ndant’s eventua lly contac ted him in “ea rly 2006.” Jo hn s o n in formed her that he would not help defe ndant unless a “prof essional person” beca me involved. ¶ 11 Hamelin, in his aff idavit, attested that he does not know defe ndant. The first time he saw defe ndant was when the police showed him a photogr aph. He attested that he told the police that he did not know the per son in the photogr aph shown to him. He furthe r stated that the police coer ced him into identifying defe ndant as the fi fth perpe trator with threats and phy sical beating s. Hamelin also attested that the police told him that his acc omplices had also identified defendant as the fifth perpe trator. He onl y agree d to imp l i cate defe ndant t o stop the police from phy sically abusing him further

. Hamelin attested that he descr ibed the fifth
perpe trator to the police as “a very light skinned man with very long hair who was tall around 6’1-6’ 3 in heig ht.” Howe ver, he was told by the police “to forg et that and a g ree that it was [defendant].” ¶ 12 Chambers, in his aff idavit, attes t ed t h at h e also did not know the fifth perpe trator. He only knew that the fifth perpe trator was a friend of Br own’s, “who was called ‘Carl’ by Br own.” Chambers attested that in the statement he g ave to De t ective Wins tead, he

-4-“desc ribed this ‘Carl’ from my memory as about 6 foot 1 to 6 foot 3 in heig ht, light skinned

and with ve ry long hair rea ching down to his shoulders.” Chambers attested that the police provided him with a photogr aph of the person whom they thought was the fifth perpe trator. L ater he viewed the alleg ed fifth perpe trator in person. Ch am b ers told the police that the
person shown to him in the photogr aph and in person was not the “ ‘Carl’ ” that he descr ibed
to them. The police then “tried to convince ” Chambers that the person in the photogr aph was the fifth perpe trator. Chambers only agree d to identify defe ndant as t h e “ ‘Carl’ ” he descr ibed as the fifth perpe trator beca use Detec tive Turner had told him th a t h is codef endants had alre ady identified defe ndant and he hoped for specia l treatment for cooper ating

. He also attested that he was instructed by Detec tive Turner not to descr ibe defe ndant phy sically when confe ssing to the ASA. Chambers attested that he had “spent time toge ther” with defe ndant
at Cook County jail while they awa ited trial. In his aff idavit, he stated “I told [defendant] at that time I felt very badly about falsely identifying him to Detec tive Turner . Itold him that I would try to help him later.” He acknow ledg ed that defe ndant contac ted him while he was in prison but attested that “[b] eca use I was m o v i n g ar o und so much t hat I wasn’t thinki ng much about [defenda

nt] and his problems and I did not respond” to def

endant’ s letters. ¶ 13 Stephen Richards, defe ndant’s attorney at trial, attested that he was never advised at the time of trial that defe ndant’s codef endants stated to the police that defe ndant was not involved in the crimes or that their descr iptions of the fifth p erpetrator wer e at odds with defe ndant’s appea

ranc e. Acc ording to Richa rds, had he known this information at the time of trial, it “is rea so n ab l y l i k el y to have chang ed the outcome of the trial.” Richards acknow ledg ed that defe ndant’s codef endants would most likely have asser ted their fifth amendment rig hts and would not have been available as witnesses, but had he known about their statements to the police, he would have introduced them at trial. Had Taylor/McGee ’s identity been known to him, he wo u ld have obtained a statement from him and “tog ether with the withheld new evidenc e from Chambers
, H a me li n , a n d Jo hn son, [would] have argued

more forc ibly that [defendant’ s] war rantless arr est was unlawful.” He would have also called Taylor/McGee to testify to show that the pol ice had arr ested the wrong person. The police provided him with no evidenc e that could have helpe d him locate the infor mant. ¶ 14 Tameka J ohnson, defe ndant’s former g irlfriend, attested that s h e wa s with defe ndant

car ing for defe ndant’s mother from the afte rnoon of J anuar y 11, 1994, until the afte rnoon of J anuar y 13, 1994. She stated t hat “[ e]arly in the evening of Thursday
, J anuar y 13th, in my p re sence , [defendant] called Erica Wells, another one of [defendant’ s] friends, at her mother’s home. *** [Defenda nt] drove me back to my mother’s house afte r which I assume he visited Erica Wells.” She did not disclose t h i s i n fo rm ati on ear lier beca use her mother insisted she not do it for fea r that she would be implicated in the crime. Although defe ndant had contac ted her over the y ear s to aid him, she ref used beca use of her ag e and her mother’s instructions. She also lost contac t with defe ndant beca use she did not have a telephone or a “mea ns of transportation.” Def

endant continued to contac t her for aid but she ref u s e d b e c a u se she was busy raising her children, and she fea red being “held acc ountable for not disclosing important evidenc e.” She was also in debt and un em ploy ed and spent eig ht months in custody and “didn’ t want to have a ny thing more to do with the police and the c ourts.” ¶ 15 Clint on Taylor, a/k/a L arr y McGe e, attested that he was arr ested with B rown, Johnson,

-5-and another person. He told the police his name wa s L arr y McGe e. He was unawa

re of the crime in question. Taylor saw Br own being phy sically beate n by the police. He o b serve d J ohnson in a “disheve led condition.” The police asked him whe re Carl could be found, but did not tell him why he had been arr es t ed o r why they wer e looking for Carl. The police threatened him a

nd told him that if he did not lead them to Ca rl, he would be implicated or char g ed for the crimes committed by Br own and J ohnson. They told him they would let him
g o if he led them to Carl. The only Carl he knew in the neig hborhood was defe ndant. He attested that he led the police to defe ndant “to avoid being caught up in what was g oing on and to avoid the beating that I saw Br own rec eive.” He told the police he had no idea whether

or not defe ndant had any involvement in the crim e. T h e p o lice testimony confirme d this. Shortly afte r defe ndant’s arr est, he moved awa y from the neig hborhood. A few months later, he moved to I owa a

nd used his g iven name, Clinton Taylor. ¶ 16 Def

endant attache d his I DOC rec ord, a copy of his arr est mug shot, and his own af fidavit. Hi s I DOC rec ord shows that as of Dec ember 26, 2006, he weighe d 174 pounds and was 5 fee t, 9 inches tall. Def

endant attested that his codef endants “ar e the principle sourc es of evidenc e to exonerate me” and that “the only time I saw my co-de fenda nts wer e brief passing
g lance s in the police station at the time of our arr est in J anuar y , 1994.” He did not know his codef endants. He attested that he had made continuous ef fo rt s s i nce his conviction to estab l i s h his innocenc e. He stated, “my eff orts to contac t [codefenda nts] wer e repe atedly frustrated by the prison sy stem ***, m y i n ab i l i ty to obtain profe ssional help despite g reat eff orts, and by the ref

usal and reluc tance of my co-de fenda nts to respond to my eff

orts once I made contac t with them.” Def endant then descr ibed in detail his numerous eff orts to contac t Chambers, Ha

melin, and Johnson. He stated that when he eventua lly prepa red a n aff idavit for Chambers, Chambers ref used beca

use of “his conce rn about his own p en d ing postconviction petition which he did not want to put in jeopar dy .” Def endant attested that he had difficulty locating J ohnson beca use J ohnson had been transfe rre d among st se vera l pr isons. He attache d a document th at l o gged his numerous attempts to secur e profe ssional
repr esentation and his attempts to contac t his codef endants. He attested t h at b ef ore giving his confe ssion, he was phy sically abused by Detec tive Turner

. He was also subject to verba l abuse. H e only

agree d to sign his statement to the police beca use he f ear ed for his safety

.

¶ 17 2009 Opinion ¶ 18 This court, in defe ndant’s 2009 appea l from the circ uit court’s denial of his petition f or leave to file hi s third petition, held t hat defendant made a cl ai m of actual innocenc e based

on newly discovere d eviden ce that was noncumulative and materia l and could potentially chang e the result upon retria l. W illiams
, 392 I ll. App. 3d at 369-70. Specifically
, the aff idavits of Z aric e J ohnson and Taylor/McGee wer e new, in that “both *** wer e involved in the crimes and wer e not hear d from befor e.” Id. at 369. In reg ard to materia lity
, this court held “the attestations of J ohnson and Taylor[/M cGe e] t h at defe ndant was not the fifth participa nt in the crimes and that they iden t i fi ed defe ndant as the fifth offe nder under
pressure from police are clea rly materia l and have the potential to change the result on retria l.” Id. This court held that J ohnson’s and Taylor’s aff idavits w ere not c umulative but, rathe r, “lend cre dence to Chambers’ and Hamelin’s simil ar aff idavits stating that they wer e

-6-pressure d t o wr ong ly identify defe ndant.” Id. at 369-70. This court reje cted the State’s

argument that res judicata and collater al estoppel barr ed defe ndant’s alleg ations. Id. at 368. In conclusion, this court held that “g iven the pro se status of defe ndant in his in itial two postconviction petitions, the gr avity of the off enses in this case and the affidavits attesting
to defe ndant’s ac tual innocenc e, fundame ntal fairne ss require s that defe ndant’s postconviction claims rec eive full consideration on their merits.” Id. at 371. Acc ording ly
, the
matter wa s remande d for second-stag e procee dings under sec tions 122-4 throug h 122-6 of the Post-Conviction HearingAct (725 I L CS 5/ 122-4 to 122-6 (West 2006)). Id.

¶ 19 Remand Proce eding s on Defe ndant’s Third Petition ¶ 20 On re mand, defe ndant sought and the circ uit court allowed him to s up p l em en t t h e aff idavits of Z aric e J o h nson, Stanley Hamelin, Clint on Taylor, Stephen Richards, and h i mself with statements reg arding their willingness to testify in support of defe ndant’s petition and waive their rights ag ainst self-inc rimination. I dentical aff idavits wer e then provided from Z aric e J ohnson, Stanley Hame l in, Clint on Tay lor, Stephen Richards, and defe ndant. ¶ 21 On J une 29, 2010, the State filed a motion to dismiss defe ndant’s third petition in which it argued that defe ndant failed to meet the require ment s o f t h e cause-a nd-pre judice test by
p r esenting evidenc e that could have been prese nted ear lier; that defe ndant’s actua l innocenc e claim is not base d up on new evidenc e; that defe ndant failed to meet the require ments of Brady ; that defe ndant’s cla im of actua l innoc ence is not fre estanding ; a nd that defe ndant’s attempt to relitig ate his motion to suppress is barr ed by waiver and res judicata

. Def endant responde d that t h e S t at e’ s motion ignor ed the ruling s of this court and that the State’s motion failed to deal with the que stion be fore the court, i.e.
, whether defe ndant has shown “one or more substantial claims of constitutional infirmity in his arr est, interrog ation, or trial that entitle him to a third stag e hear ing on those claims.” Def endant asser

ted that he did show that his constitutional claims wer e substantial and, thus, he was entitled to proce ed to a thirdstag e evide ntiary

hear ing on his pe tition. ¶ 22 After briefing and argument, the circ uit co u rt gra n t ed t h e S t ate’ s motion to dismi ss defe ndant’s third petition. The circ ui t co u rt found that the aff idavits of Stanley Hamelin, Z aric e J ohnson, and Scott Chambers wer e not from new witnesses that had new information. Rather, the aff

iants wer e known to de fenda nt a t the time of his tria l a

nd awa ited trial in the

s am e Cook County jail. The circ uit court noted that Chambers and Hamelin als o gav e aff idavits in defe ndant’s previous pos tc o n v ic ti o n p e ti ti o n

. T h e circ uit court stressed that none of defe ndant’s codefen d an ts in their respe ctive aff idavits “identify the availability of the alleg ed eviden ce b eca

use in none of them does a co-de fenda nt aff irmatively aver that he would have waived his rig ht ag ainst self-inc rimination and testified as to the contents of the aff idavits at [defendant’ s] trial.” The circ uit court found that Taylor/McGee ’s aff idavit could have been discovere d sooner throug h due diligenc e as he was known to and was a friend of defe ndant. The court stated that “[i] t appea rs that [defendant] made a strateg ic decision not to call McGe e at trial so petitioner could argue that McGe e, and not [defendant], was the fifth offe nder.”

-7-¶ 23 In reg ard to the issue of the pol ice having probable cause to arre st defenda nt, the court found the issue had previously been ruled upon and, thus, was waived under the doctrine of

res judicata

. The circ uit court found that the information in Tameka J o h n s o n ’s af fidavit could also have been known to defe ndant, as she w as his former g irlfriend a

nd “[h] er alibi testimony would have been known to [defendant] at the time of trial

. ” As t o d efe ndant’s Brady claim, that the Sta t e i n t en tionally withheld evidenc e of misidentification of him by codef endant Scott Chambers, the circ uit court found this information not to be newly discovere d beca

use Scott Chambers, in his aff idavit, told defe ndant while they wer e both

awa iting trial that he falsely identified him to the police. ¶ 24 The circ uit court also noted that “Z aric e J ohnson, Scott Chamber, and Stanley Hamelin
contra dict themselves reg arding purported descr iptions of the fifth offe nder g iven to police. Z aric e J ohnson descr ibed him as very dark ski n n ed with a full, untrimmed beard, Stanley Hamelin descr ibed him as very light skinned wi t h v er y long hair, and Scott Chambers descr ibed him as light skinned with very long hair rea ching down to his shoulders.” The
court found that “[t] heir contra dictory aff idavits gi v e n o cre dence to the notion that their testimony would be of such conclusive char acte r as to probably chang e the results upon retria l.” ¶ 25 The circ uit court a d d r e s sed defe ndant’s alleg ations of police abuse toward him by finding them waived beca

use they wer e alre ady made in his motion to suppress statements. The court then explained defe ndant’s confe ssion, which it found “con t ained details only an attacke r would know.” The court conclude d that it “did not f ind that the aff

idavits contain evidenc e that is materia l, noncumulative, and could not have been discovere d sooner thr o u gh due diligenc e. The evidenc e is not newly discovere d, nor of s u ch co nclusive char acte r that it would probably chang e the result on retria l. T here has been no showing of a violation of petitioner’s c onstitut ional rig hts.” Def endant timely

appea led on April 12, 2011.

¶ 26 Def endant’ s Fourth Petition ¶ 27 Also on April 12, 2011, defe ndant filed a m o t i o n for leave to file another succe ssive postconviction petition (four th petition). In his fourth petition, defe ndant argued that based

on the Supreme Court’s decision in Graham v. Florida
, 560 U.S. ___, 130 S. Ct. 2011 (2010), “a sentenc e of life imprisonment without parole for a non-ca pital c rime committed by a minor was a ‘cr

uel and unusual punishment’ and violated the 8th amendment to the Constitution.” Def

endant cited fac tors to consid er i n favor of reduc ing his sentenc e, including that he was 17 y ear s old at the time of the offe nses, he was convicted on a theory of acc ountability
, and that “if involved at all, [he was not] prese nt when the double murders which invoked the ma

ndatory life sentenc e we re c ommitt ed later in the crime spr ee.” ¶ 28 On J une 28, 2011, the circ uit court denied defe ndant leave to file his fourth petition a nd assessed f ees a nd costs for f

iling a f rivolous pleading . In its written order
, the circ uit court found Graham distinguishable and that defe ndant did not meet the cause -and- prejudice test. The court also assessed defe ndant fee s and costs, finding defe ndant’s claim was “fr ivolous and pate ntly

without merit.” ¶ 29 Def

endant timely appea led on J uly 28, 2011. On August 30, 2011, this cou rt gra nted

-8-defe ndant’s motion to consolidate both of defe ndant’s appea ls und e r c a s e n u mb e r 1

- 1 1-1145. ¶ 30 After the p ar t i es fi l ed their respe ctive briefs, the Supreme Court issued its opinion in Miller v. Alabama
, in which it held a “mandatory life [sentence] without p arole for those under the ag e of 18 at the time of their crimes violates the Eig hth Amendment’s prohibition

on ‘c ru el and unusual punishments.’ ” Miller v. Alabama
, 567 U.S. at ___, 132 S. Ct. at 2460. Su b s eq u en t ly
, defe ndant filed a motion for leave to submit supplemental authority
, arguing that Miller has a direc t impact on his fourt h p eti tion curr ently befor e this court. Def endant pointed out that in his fourth petition, he, like the majority opini o n in Miller
, principally relied upon the Supreme Court’s pr ior holdings in Roper v. Simm ons , 543 U.S. 551 (2005), and Graham v. Florida
, 560 U.S. ___, 130 S. Ct. 2011, in making his argument that juvenile offe nders are less culpable and, thus, less deser ving of the harshe st punishment than adult offe nders. We g rante d defe ndant’s motion, but allowed the State to file a response

. ¶ 31 In response , the State argued that Miller “does not c ateg orica lly prohibit life sentences for juveniles, but rathe r require s a particula r procedure befor e it may be imposed.” (Emphasis in orig inal.) The State argued the circ uit court, when sentenc ing defe ndant, used the proper proce dure in this case by considering both evidenc e in ag g ravation and mitigation, defe ndant’s ag e, and his a llocation befor e exerc ising its discretion in sentenc ing defe ndant
to life in prison without parole

. The State argu ed fu rt h er the rule expounded in Miller is
proce dural and not applicable to fi n al co n v i ctions such as this one. According ly
, the S tate argued that Miller

cannot be applied re troac tively

. ¶ 32 We allowed defe ndant to file a reply to the State’s response

. In reply
, defe ndant pointed
out that he was 17 y ear s old at the time the crimes occur red, and he was sentenc ed to life in prison without the possibil ity of parole

. He alleg ed that the statute he w as sentenc ed under provided for a mandatory sentenc e of natura l life and there fore vio l at ed b o t h the United States and I llinois Constitutions. Acc ording ly
, he maintains his sentenc e was void ab initio and ca n be attac ked at a

ny time.

¶ 33 ANALYSI S ¶ 34 Be fore this court, defe n d an t ar gu es t h at the circ uit court err ed in g ranting the State’s motion to dismiss his third petition beca use he has made a s ub s t anti al showing of constitutional violations, such that he is entitled to an evidentiar y hear ing. In the alternative, he argues that the circ uit court err ed in deny ing his petition for leave to file a fourth petition beca use the alleg ations in his fourth petition contain sufficie nt alleg ations to sat i s fy the

cause -and- prejudice requ i rements of section 122-1(f ) of the Act. There fore
, he reque sts a

new se ntencinghear ing. ¶ 35 The Act allows criminal defendants to cha lleng e their c onviction or sentence based on substantial deprivations of their constitutional rig hts. People v. Pee ples
, 205 I ll. 2d 480, 509 (2002). The filing of only one postconviction petition is contemplated under the Act. People v. Morgan , 212 I ll. 2d 148, 153 (2004). A petition unde r the Act is a collater al proce eding
, not an appea l. People v. W illiams
, 209 I ll. 2d 227, 232 (2004). There fore
, res judicata bars issues previously decide d on appea l. Id. at 233. Simi larly
, issues not raised, even though they

co u ld have been raised on appea l, are waived. Id. Howeve r, a succe ssive petition will b e

-9-considere d on its mer its, and the statutory bar to doingso will be relaxed, in the interest of fundame ntal fairne ss. Id. In order to have a succe ssive petition considere d, a petitioner must satisfy the cause -and- prejudice test. People v. Ortiz
, 235 I ll. 2d 319, 329 (2009). The cause

and-pr ejudice te st is codified by section 122-1( f) of

the Act, whic h states: “(f ) Only one petition may be filed by a petiti o n er *** without leave of the court. L eave o f co u rt m ay be g rante d only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proce eding s and prejudice results from that failure

. For purposes of this subsec tion ( f): (1) a prisoner shows cause by identifying an objective fac tor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proce eding s; and (2) a prisoner shows prejudice by demons t ra t i n g t hat the claim not raised during his or her initial post-conviction
proce eding s so infec ted the trial that the resulting conviction or sentence v i olated due
proce ss.” 725 I L CS 5/ 122-1(f ) (West 2010). ¶ 36 Howeve r, a petitioner is excused from the cause -and- prejudice test wher e petitioner can set forth a claim of actua l innocenc e. Ortiz
, 235 I ll. 2d at 330. Actual innocenc e claims based

on newly discovere d evidenc e are protec ted by the du e p ro ce s s clause of the I llinois Constitution. Id. at 3 3 3

. Newly discovere d evidenc e is “evide nce that was not available at defe ndant’s original trial and that the defendant could not have discove red soone r t hrough diligenc e.” Morgan
, 212 I ll. 2d at 154. The newly discovere d evidenc e h as to also be noncumulative and materia l. Id. “Evidenc e is considere d cumulative when it adds nothing
to what was alre ady befor e the jury .” Ortiz
, 235 I ll. 2d at 335. Fur ther, “it must be of such conclusive char acte r that it would probably chang e the result on retria l.” Morgan
, 212 I ll. 2d at 154. ¶ 37 A petitioner under the Act is not entitled to an evidentiar y hear ing. Pee

ples , 205 I ll. 2d
at 510. Rather, “[a]n evidentiar y hear ing is war

rante d on a post-conviction claim only wher e the all e g a ti o n s in the post-conviction petition, supported wher e appropr iate by the trial rec ord

or acc ompanying aff

idavits, make a substantial showing that the constitutional rig hts of the defe nd an t h ave been violated.” Id. “At the motion to dismiss stag e in post-conviction
proce eding s, all well-plea ded fac ts that a re not positively rebutted by the trial re cord are to be taken as true.” People v. Childress
, 1 9 1 I ll. 2d 168, 174 (2000); see also People v. Coleman
, 183 I ll. 2d 366, 382 (1998) (“The ref ore, the dismiss al of a post-conviction petition is warr anted only

when the pe tition’s alleg ations of fac t–liberally construed in f avor of the petitioner and in light of the orig inal t ri al re cord–f ail to make a substantial showing of imprisonment in violation of the state or fede ral constitution.”). Our revie w of the circ uit court’s dismiss al of a petition decide d without an evidentiar y hearing is de novo

. Childress
, 191 I ll. 2d at 174.

¶ 38 Def endant’ s Third Petition ¶ 39 Initially
, we reiter ate that at this stag e in the proce eding s, defe ndant’s alleg ations that are

n o t rebutted by the trial rec ord must be liberally construed in his favor and taken as t ru e. Childress
, 191 I ll. 2d at 174; Coleman
, 183 I ll. 2d at 382. Our rev i ew o f t he record shows that defe ndant’s newly discovere d evidenc e and th e alleg ations contained there in, i.e.
,

-10-aff idavits from his codef

endants
, h i s attorney , and his ex-girlf riend, were not addre ssed at trial. Acc ording ly
, they must be taken as t rue at this st age i n the proceeding s beca use t hey

are not rebutted by the trial rec ord. Childress
, 191 I ll. 2d at 1 7 4

. Wit h these principles in mind, we must deter

mine whether defe ndant has made a substantial showing that his constitutional rights have been violate d. ¶ 40 I n o rder for defe ndant to be entitled to an evidentiar y hearing on his claims, h e m u s t show that his e vidence is ne wly discovere d, materia l, and noncumulative, a nd that it is “of such conclusive char acte r that it would probably chang e the result on retria l.” Morgan
, 212 I ll. 2d at 154. Def

endant has shown that his evidenc e is newly discovere d beca use it was not available at his trial and could not have been discovere d ear lier throug h diligenc e. Morgan
, 212 I ll. 2d at 154 (def

ini n g newly discovere d as “evide nce that was not available at defe ndant’s orig inal trial and that the defe n d an t could not have discovere d *** throug h diligenc e”)

. Def

endant attested that his codef endants and Tameka J ohnson wer e previously
uncooper ative. His codef

e n d a nts a n d T ameka J ohnson stated in their aff idavits that they wer e uncooper ative with defe ndant. He attested to the various difficulties of communicating while in the prison sy stem and attac hed docume ntation of his numerous attempts to discover the evidenc e. Clint on Taylor could not even be located until well afte r trial. Def endant’ s attorney also attested that the evidenc e in question was not known to him at the time of trial. Taking these alleg ations as true, defe ndant has shown that the evidenc e his alleg ations are based on is newly discovere d in that it was not av ail able at the time of his trial nor could he have discovere d it through dilig ence

. ¶ 41 Additionally
, defe ndant’s alleg atio n s a r e ma te rial a n d n o n c u mu la ti v e a n d p r o b a b ly w ould have chang ed the result of his tria l. H is codef endants attested that they eac h told the police that t h e p o lice had the wrong man, that they did not know defe ndant, and that they g ave descr iptions of the alleg ed fifth perpe trator that did not match defe ndant. Tay lor/McGee attested to the circ umstances which led the police to d ef endant. We hold that defe ndant’s alleg ations are clea

rly materia l beca

use they weaken or contra dict th e S t at e’ s case ag ainst him. This evidenc e is also noncumulative because it is new and w as not previously befor e the trier of fac t. See Ortiz
, 235 I ll. 2d at 335 (“Evide nce is considered cumulative when it adds nothing to what was alre ady befor e the jury .”). The codef endants’ telling the police they had the wrong man, that they did not know defe ndant, and that the descr iptions they g ave did
not match defe ndant was never befor e the jury and obvi o u s l y not cumulative. We further hold that this evidenc e would also probably have chang ed the result of defe ndant’s trial. The only evidenc e linking defe ndant to the crime was his confe ssion. No one identified defe ndant

as being involved. Pol i ce t es t i fied that Taylor/McGee told them that he knew defe ndant’s

name was Carl but he did not kno w wh et h er d efe ndant was involved in any way in the crimes. Pu rs u an t to a plea agree ment, codef endant J ohnson testified for the State at

c odefe ndant Br own’s trial. J ohnson testified consistently w it h h is o wn c o n f

e s s io n , e xp lain in g what role eac h of the codef endants played in the vehicular hijacking and sexual assault which took place in his prese nce prior to the double murder

. At no time did J ohnson identify defe ndant as being the “Carl” who participated i n the crime. Fur ther, the State did not call J ohnson at defe ndant’s trial, which took place six months afte r J ohnson t es tified ag ainst Br own. Def

endant’ s attorney supplied an aff idavit in which he explains how he would have

-11-tried the c ase ha d he known a bout the newly

discovere d evidenc e. Namely , he would have introduced the statements of defen d an t ’s codef endants. He would have argued that defe ndant’s war

rantless arr est was illega l. He would have called Taylor/McGee to testify that the police had the wrong person. Taking these alleg ations as t rue, defe ndant’s evidenc e is
new, materia l
, an d n oncumulative, and probably would have chang ed the result of defe ndant’s trial. There fore
, we hold that defe ndant has made a substanti al s h owing of a fre estandingclaim of a ctual innoce nce suc h that he is entitled to an evide ntiary hearing on his alleg ations in his third petition. Acc ording ly
, we reve rse the judgme nt of the circ uit court and re mand the matter

for a n evidentiar

y hear ing on de fenda

nt’s third petition.

¶ 42 Def endant’ s Fourth Petition ¶ 43 Def

endant, in his fourth petition, argues that his mandatory life sentenc e without pa role

v i o l at es t he eig hth amendment to the Constitution of the United States and section 11 of article I of the I llinois Constitution. He arg ues that his sentenc e is void ab initio and can be attacke d at any time. Additionally
, he maintains that he has satisfied the cause -and- prejudice
test under section 122-1(f ) of the Act beca

use Miller was unknown and unknowable to him as i t was only rec ently issued, and that wi t h o u t t h at argument, he was prejudice d by being denied his right to due proce ss in his sentencinghear ing. I n response , the S tate ar gues that the circ uit court followed the proper proce dure and exercised its discretion when it sentenc ed defe ndant, that the rule expounded in Miller is proce dural and not applicable in this case , and that the holding of Miller cannot be applied re troac tively

. ¶ 44 The two juvenile defe ndants in Miller wer e senten ce d t o l i fe i n prison without the possibili ty of parole for their respe ctive murder convictions. Miller
, 567 U.S. at ___, 132 S. Ct. at 2460. The Supreme Court pointed out that “[i] n neither case d i d t h e sentenc ing authority have any discretion to impose a differ ent punishment. State law mandated that eac h juvenile die in prison even if a judge or jury would have though t that his youth and its attendant char acte ristics, along with the nature of his crime, made a lesser s en t en ce (for example, life with the possibili ty of parole ) more appropriate.” (Emphasis in orig inal.) Id. The Court held “that mandatory life without parole for those under the ag e of 18 at the time of their cr i m es v iolates the Eig hth Amendment’s prohibition on ‘cr uel and unusual punishments.’ ” Id. The Court noted that its prior decisions of Graham v. Florida
, 560 U.S.

___, 130 S. Ct. 2011 (2010), and Roper v. Si mm ons , 543 U.S. 551 (2005), “esta blish that children are constitutionally differ en t from adults for purposes of sentenc ing” due to their “diminished culpability and g reater prospec ts for ref orm.” Miller
, 567 U.S. at ___, 132 S. Ct. at 2464. ¶ 45 In rea ching its decision, the Court addre ssed its conce rns with proportionate punishment under the eig hth amendment. It stated:
“The Eig hth Amendment’s prohibition of crue l and unusual punishment ‘guara ntees individuals the right not to be subj ecte d to excessive s anctions.’ [ Ci t ati on.] That right,

we have explained, ‘ flows from the basic “pre cept of justice that punishment for cr ime should be g raduated and proportioned” ’ to both the offe nder and the offe nse. [C itation.] As we n o t ed t he last time we considere d life-without-pa role sentenc es imposed on

-12-juveniles, ‘[t] he conce pt of proportionality i s centr al to the Eig hth Amendment.’ [C itation.] And we view that conce pt less throug h a his to ri ca l p rism than according to ‘ “the evolving standards o f dece ncy that mark the progress of a maturing society .” ’ [C itation.] ” Id. at ___, 132 S. Ct. at 2463. The Court did not ba

n the sentenc ing of juveniles to life in prison without parole ; r ather
, it held the mandatory sentenc ing of juveniles to life without parole violates the eig hth amendment and require d sentenc ing courts “to take into acc ount how children are differ ent, and how those differ ence s counsel ag ainst irrevoc ably sentenc ing them to a lifetime in prison.” Id. at ___, 132 S. Ct. at 2469. The Court concluded:

“ Gr a h am , Roper
, and our individualiz ed sentenc ing decisions make clea r that a judg e

or jury must have the opportunity to consider mitigating circ umstances befor e imposing the harshes t p o ssible penalty for juveniles. By requiring that all children convicted of homicide rec eive lifetime incar cer ation wi t hout the possibili ty of parole
, reg ardle ss of their ag e and ag e-r el at ed ch ara cter istics and the nature of their crimes, the mandatory
sentenc ing scheme s befor e us violate this principle of proportionality
, and so the Eig hth Amendment’s ba

n on crue l and unusual punishment.” Id. at ___, 132 S. Ct. at 2475. ¶ 46 Simpl y put, Miller holds there cannot be a mandatory sentenc e of life without parole for homicides committed by juveniles. It can be arg ued that Miller was a proce dural chang e in how life without parole is imposed; that it did not cre ate an absolute prohibition on lifewithout-parole sentenc es for juveniles. A life-without-pa role sentenc e passes muster wher e proper proce dures a llow the trier of fac t to determine if it is an appr opriate se ntence

. ¶ 47 I nitially
, we reje ct defe ndant’s contention that his sentenc e was void ab initio

. T o b e considere d void ab initio under a new constitutional ru l e, the statute in question has to be rende red f

acia lly unconstitutional. Lucien v. Briley , 213 I ll. 2d 340, 344 (2004). “A statute is fac ially unconstitutional if there are no circ umstances in which it could be validly applied.” Id. In this case, de fenda

nt was sentenc ed ac cordingto the followingstatutory scheme : “(a ) Ex cept as otherwise provided i n the statute defining the offense, a sentenc e of imprisonment for a felony shall be a deter minate sentenc e set by the court under this Section, acc ordingto the followinglimit ations: (1) f or first degree murder,
* * * (c) the court shall sentenc e the defe ndant t o a t erm of natura l life imprisonment when the dea th penalty is not imposed if the de fenda nt,

*** (ii) is a per s o n wh o , at the time of the commission of the murder, had attained the ag e of 17 or more and is found guilty of murdering an individual under 12 y ear s of age ; or, irrespective of the defendant ’s a g e a t the t ime of the commission of the offense, is found guilty of murdering more than one victim [.] ” (Empha sis added.) 730 I L CS 5/ 5-8-1( a)( 1)(c )(ii) (West 1996).
In this case , with the holding of Miller in mind, the statute can be validly applied to a dults. Acc ording ly
, there are circ umstances in which it can be validly applied. There fore
, it is not

-13-fac ially unconstitutional. ¶ 48 Whil e we have previously deter mined that defe ndant’s third postconviction petition may
proce ed beca

use the defe ndan t h as made a substantial showing of a fre estanding claim of
actua l innocenc e, that standard does not apply to the defe ndant’s fourth petition, which is bas ed on Miller

. Consequently
, we must apply the cause -and- prejudice test under section 122-1(f ) of the A ct. 725 I L CS 5/ 122-1(f ) (West 2010). ¶ 49 This c ourt has reje cted defe ndant’s arguments that new c ourt ruling s provide a basis to find “ca use” for failure to raise an issue on direc t appea l or in an initial postconviction petition. See People v. Purnell
, 356 I ll. App. 3d 524, 531 (2005) (def endant could not ba se claim of cause on the fac t that Boclair had not y et been decide d at the time he filed his initial postconviction petition); People v

. Le a s o n , 352 I ll. App. 3d 450, 455 (2004) (def endant could
not cl ai m ca u s e o n the fac t that Strain had not been decide d at the time he filed initial petition be cause leg al basis for his claim exis ted even though prec edent did not) ; People v. Johnson
, 392 I ll. App. 3d 897, 903 (2009) (re jected defe ndant’s assertion that cause require ment was satisfied beca use W hit f i eld was decide d afte r his initial postconviction petition was filed). ¶ 50 Howeve r, in ea ch of those case s this c ourt based its rejection on the f act that the “ leg al foundation” for the newly cited case s was laid befor e the defe ndant’s conviction, or the filing of his initial post conviction petition. We find that the holdings def endant r elies upon her e, i.e.
, Miller v. Alabama
, 567 U.S. ___, 132 S. Ct. 2455 (in supplemental briefing befor e this court), and Graham v. Florida
, 560 U.S. ___, 130 S. Ct. 2011 (in his fourth petition), wer e

new rules of criminal proce dure which made a substantial chang e in the law and that the leg al foundation for these decisions was not laid befor e defe ndant’s trial or the filing of his initial postconviction petition. Acc ording ly
, defe ndant has satisfied the cause element of the cause

and-pr ejudice test of section 122-1(f ) of the Act. 725 I L CS 5/122-1(f) (West 2010) (“L eave of court may be g rante d only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proce edings * * *

. For purposes of this subsection (f) : (1) a prisoner shows cause by identify ing an objective fac tor that impeded his or her ability to raise a s pecif ic claim during his or her initial post-conviction p ro ceeding s ***.”). ¶ 51 De fe n d an t has satisfied the cause element of the cause -and- prejudice test, but he still
must show that he was prejudice d. 725 I L CS 5/122-1(f) (West 2010). In order for defe ndant to show that he wa s prejudice d by his failure to r aise his c laim in his init ial postconviction petition that his sentenc e is unconstitutional, defe ndant has t o d emons trate “that the claim not raised dur ing his or her initial post-convic tion procee dings so infe cted the tr ial that the resulting co nviction or sentenc e violated due proce ss.” 725 I L CS 5/122-1(f) (West 2010). Def endant can show prejudice if the Supreme Court’s decision in Miller applies retroa ctively
to his case

. To deter

mine whether Mi l l er created a new constitutional rule of criminal
proce dure such that it c an be applied retroa ctively in this case , we look to the standards set forth by the Supreme Court in Teague v. Lane and adopted by our supreme court in People

v. F l o w er s

. People v. Sanders
, 238 I ll. 2d 391, 400-02 (2010) (citing Teague v. Lane
, 489 U.S. 288 (1989), and People v. Flowers
, 138 I ll. 2d 218 (1990))

. Our supreme co u rt has explained the Teagueanaly sis as such:

-14-“Ge nera lly
, new rules are not to be applied retroa ctively to case s on collater al re v iew except in two instances: (1) if the rule place s cer tain kinds of primary
, private individual conduct beyond the power of the criminal-law -making authority to proscr ibe; or (2) if the

ru le require s the observa nce of those proce dures that are implicit in the conce pt o f order ed liberty .” Id. at 401. The second exception is limit ed to “ ‘watershed rules of criminal proce dure’ ” and to “those

new proce dures without which t h e likelihood of an acc urate conviction is seriously diminis hed.” Id. (quoting Teague , 489 U.S. at 311). ¶ 52 We hold that the Supreme Court’s decision in Miller should be retroa ctively applied in this case beca

use it is a rule that “r equire s the observa nce of those proce dures that are implicit i n the conc ept of orde red liber ty .” Id. The Court in Miller explained: “The Eig hth Amendment’s prohibition of crue l and unusual punishment ‘guara ntees individuals the right not to be subj ecte d to excessive s anctions.’ [ Citation.] Th at rig ht,

we have explained, ‘ flows from the ba sic “pre cept of justice that punishment f or crime should be g raduated and proportioned” to both the offe nder and the offe nse. [C itation.] As we noted the last time we considere d life-without-pa role senten ce s i m p o sed on juveniles, ‘[t] he conce pt of proportionality is centr al to t h e Eig hth Amendment.’ [C itation.] ” Miller , 567 U.S. at ___, 132 S. Ct . at 2463.
Acc ording ly
, under the proportionate punishment a naly sis in Miller
, defe ndant was denied

a “basic ‘pre cept of justice’ ” by not r ece iving any consideration of his ag e from the circ uit

co u rt in sentenc ing. (Interna l quotation marks omitted.) Id

. at ___, 132 S. Ct. at 2463. Fur ther, “ ‘[t] he conce pt of proportionality is centr al to the Eig hth Amendment.’ [C itation.] ” Id. Applying the rule of Miller to the case at bar shows that “the rule require s the observa nce of proce dures that are implicit in the conce pt of order ed liberty .” Sanders
, 238 I ll. 2d at 401. ¶ 53 A new rule of criminal proce dure applies retroa ctively in those ins t an ce s wh ere it has made a substantial or substantive chang e in the law. Id. (new rules are t o b e ap p l ied
retroa ctively to “ ‘watershed rules of criminal pro ce du re ’ ” and “limited to those new proce dures without which the likelihood of an acc urate conviction is seriously diminis hed” (citing Teague
, 489 U.S. at 311)). We find that Miller not only chang ed proce dures, but also made a substantial chang e in the law in holding under the eig hth amendme n t t h at the
g overnme nt cannot constitutionally apply a mandatory sentence of life without parole for homicides committed by juveniles. L ife without parole is justif i ed only wher e the State shows that it is appropr iate and fitting reg ardle ss of the defe ndant’s ag e. We hold that Miller is such a “ ‘ water shed rule[ ] of criminal proce dure.’ ” Id. ¶ 54 As to retroa ctive application we note the Mille r d e c is ion involved the robber y and murde r

case s of Evan Miller and Kuntrell J ackson. Miller was convicted of killing a man in Alabama and J ackson was convicted as an acc omplice in an Ar k an s as ro bbery resulting in murder. Both wer e 14 when convicted. It is instructive that t h e Miller companion case , Jack son v. Hobbs
, arising on collater al revie w, involved a life-without-pa role-se ntence here tofore final. Notwithstanding its finalit y , the Supreme Court of the United States in eff ect r etroa ctively applied Miller and vaca

ted J ackson’ s sentenc e. “[O]nce a new rule is applied to the defe ndant in the case announcing the rule, evenha nded justice require s that it be applied retroa ctively

-15-to all who are simil arly situated.” Teague , 489 U.S. at 300. The Miller case held under the eig hth amendment that it is crue l and unusual punishm en t to impose a mandatory life
sentenc e wi t h o u t p ar o l e to a special class–juveniles. I t would also be cruel and unusual to apply that principle only to new case s. We there fore hold that the Court’s holding in Miller should be retroa ctively applied. Fr om the above discussion, we believe that it is evident that when a defe ndant has met his burden u n d er T eague that a new rule must be retroa ctively applied, the defe ndant has also met his burden under the cause -and- prejudice test. 725 I L CS 5/122-1(f) (West 2010); People v . Pitsonbarger , 205 I ll. 2d 444, 461-62 (2002). ¶ 55 Be fo re t his court the parties eac h soug ht leave to cite additional authority
, which we allowed. The State cited a rec ent case from the Florida court of appea ls, Geter v. State
, No. 3D12-1736, 2012 WL 4448860 (F la. Dis t. Ct. App. S ept. 27, 2012); and defenda nt cited a
per curiam opinion from the L ouisiana Supreme Court in State v. Simmons
, No. 2011-KP1810, 2012 WL 4856210 (L a. Oct. 12, 2012), and two unpublished decisions, the California Court of Appea ls decision in People v. Hoffman
, No. F061127, 2012 WL 3066392 (Cal. Ct. App. J uly 30, 2012), and the I owa Court o f Ap p ea l s d ecision in Iowa v. Lockheart
, 820 N.W.2d 769 (I owa Ct. App. 2012) (table)

. We have revie wed all of th e s upplemental authorities submitt ed by the parties an d fi nd them all distinguishable. Although we agree with the ultimate results of Simmons
, Hoffman
, and Lockheart
, in that they eac h rema nd their

re s p ective case s for rese ntencing in acc ord with Miller
, none of them employ the Teague analy sis that we have relied upo n i n re aching our conclusion. We have also revie wed the Geter decision cited by the State. Although we disag ree with the result of Geter in that it held that Miller did not apply retroa ctively
, it also used a differ ent standard of analy sis than that found in Teague

. We acknowle dg e that the United States Supre me Court held in Danforth

v. Minnesota
, 552 U.S. 264, 280-81 (2008), that state courts need not utiliz e the analy sis found in Teague

. Howeve r, our supreme court still employ s it. See People v. Davis
, 388 I ll. App. 3d 869, 879 (2009) (listing case s). Acco rd i n gly
, the supplemental authorities from fore ign jurisdictions cited by the parties have no eff ect on our decision to retroa ctively apply Miller. ¶ 56 After oral argument in this matter, the State filed anot h er m o t i o n fo r l ea v e t o cite additional authority
, whi ch we allowed. In its motion, the State cited the rec ent Michig an Court of Appea ls decision in People v. Carp
, No. 307758, 2012 WL 5846553 (Mich. Ct. App. Nov. 15, 2012). The Carp court held, utiliz ing a Teague analy sis, that the hol ding in Miller is not a substantive new rule requiring case s on collater al re v i ew to apply it
retroa ctively

. The Carp court specific ally held, contra ry to our holding in t h i s ca s e, that Miller did not cre ate a water shed rule of crimi n al p ro ce dure. As discussed supra , we hold that Miller did cre ate such a rule. There fore
, we respe ctfully disag ree with t h e M i ch i g an Court of Appea ls decision in Carp

. ¶ 57 Her e, the sentenc ing court did not g raduate and propor tion punishm ent for defe ndant’s crime considering his status as a juvenile at the time of the offe nse. This violates the eig hth amendment’ s prohibition on crue l and unusual punishment. Miller
, 567 U.S. at ___, 132 S. Ct. at 2460. There fore
, defe ndant has shown prejudice under the Act. 725 I L CS 5/ 122-1(f ) (West 2010) (“L eave of court may be g rante d only if a petitioner demonstrates cause for his

or her failure to bring the claim in his o r h er i n i tial post-conviction petition and prejudice

-16-results from that failure .”). Acc ording ly
, defe ndant has satisfied the cause -and- prejudice test

of sec tion 122-1(f) of

the Act a nd the circ uit court err ed in deny ing his motion for lea

ve to file a suc cessive postc onviction petition. 725 I L CS 5/ 122-1(f ) (West 2010). ¶ 58 At oral argu m en t t h e S t at e i n fo rm ed t he court that approximately 105 convicted defe ndants in I llinois have life without parole sentenc es and would be aff ecte d if the Miller holding is applied retroa ctively

. This is not such a g reat number of case s for us to conclude that it is an unrea sonable burden for the State and the courts to reope n their case s for

rese ntencing

. ¶ 59 L astly
, we addre ss a conce rn which arises as a conseque nce of deter mining Miller to be
retroa ctively applied. No doubt there are family members, friends, and victims who have

s u ff ere d due to the acts of juveniles now serving life-without-pa role sentenc es. We understand the anxiety
, pain, and neg ative impact that rema nding and order ing rese ntencing hear ings will cause them. Howeve r, a new sentenc ing hear ing should require only one further
proce eding to attend whether or not they previously attended. They wi l l have another opportunity to make a statement as to the impact the crime has had upon them befor e the new sentenc e is g iven. See 725 IL CS 120/ 6 (West 2010). ¶ 60 Due to our holding reg arding defe ndant’s fourth petition, if the circ uit court declines to g rant defe ndant a new trial afte r an evidentiar y hear ing on his third petition, the circ uit court shall conduct a

new se ntencinghear ing in a ccor d with our holding conce rning defe ndant’s fourth petition. Additionally , due to our holding on defe ndant’s fourth petition, we reve rse the circ uit court’s judg ment awa rdingfee s and costs.

¶ 61 CONCLUSI ON ¶ 62 The judgme nt of the circ uit court is reve rsed and the cause is rema nded with directions.

¶ 63 Reverse d and ca use re manded.

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