Illinois Official Reports 

Appellate Court

People v. Holman, 2016 IL App (5th) 100587-B

Appellate Court 

Caption

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

v. RICHARD HOLMAN, Defendant-Appellant.

District & No. Fifth District

Docket No. 5-10-0587

Filed March 3, 2016

Decision Under 

Review

Appeal from the Circuit Court of Madison County, No. 80-CF-5; the 

Hon. Charles V. Romani, Jr., Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Michael J. Pelletier, Ellen J. Curry, and Robert S. Burke, all of State 

Appellate Defender’s Office, of Mt. Vernon, for appellant.

Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick 

Delfino, Stephen E. Norris, and Whitney E. Atkins, all of State’s 

Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE CHAPMAN delivered the judgment of the court, with 

opinion.

Presiding Justice Schwarm and Justice Moore concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 This appeal requires us to consider whether a natural-life sentence without the possibility 

of parole may be imposed on a defendant who was a minor at the time of the offense when the 

sentencing court had the discretion to impose a lesser sentence. The defendant, Richard 

Holman, was 17 years old when he committed the murder at issue in this case. In April 1981, a 

court sentenced him to natural life in prison. Since that time, courts have grappled with the 

question of the extent to which the eighth amendment’s proscription against cruel and unusual 

punishment (U.S. Const., amend. VIII) limits the sentences that may be imposed for crimes 

committed by juveniles. In Miller v. Alabama, the United States Supreme Court held that a 

mandatory sentence of natural life in prison without the possibility of parole runs afoul of the 

eighth amendment when imposed for a crime committed when the defendant was a juvenile. 

Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2469 (2012). In this case, the defendant 

filed a petition for leave to file a successive postconviction petition alleging that his natural-life 

sentence is unconstitutional. He appeals an order denying that petition, arguing that (1) the 

sentencing court did not take into account mitigating factors associated with his youth, as 

required by the Court in Miller, and (2) the holding of Miller should be expanded to encompass 

any natural-life sentence imposed for a crime committed while the defendant was a juvenile. 

We affirm. 

¶ 2 On July 13, 1979, 83-year-old Esther Sepmeyer was found dead in her rural farmhouse. 

Mrs. Sepmeyer had been shot in the side of the head with her own rifle. Her home had been 

ransacked. The defendant’s fingerprints were found on the cabinet where Mrs. Sepmeyer 

stored her rifle. The defendant and a codefendant, Girvies Davis, were arrested for the murder. 

Both gave statements to police. Girvies admitted that he loaded the rifle but indicated that the 

defendant was the shooter. The defendant indicated that Girvies was the shooter. Although the 

defendant’s fingerprints were the only prints found on the cabinet, the State acknowledged that 

it could not establish beyond a reasonable doubt which of the two defendants was the shooter. 

It should be noted that the defendant turned 18 on August 20, 1979, just five weeks after the 

murder. 

¶ 3 A jury found the defendant guilty of first degree murder in March 1981, and the matter 

proceeded to a sentencing hearing on April 24, 1981. The multiple-murder sentencing statute 

in effect at the time provided that the court “may sentence the defendant to a term of natural life 

imprisonment” if the defendant has been convicted of murdering more than one person. 

(Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-8-1(a)(1); see also Ill. Rev. Stat. 1979, 

ch. 38, ¶¶ 1003-3-3(d), 1005-8-1(d) (providing that parole is not available to prisoners serving 

sentences of natural life). (We note that the statute was subsequently amended to make 

natural-life sentences mandatory for defendants convicted of more than one murder. See Pub. 

Act 82-717, § 2 (eff. July 1, 1982) (amending Ill. Rev. Stat. 1981, ch. 38, ¶ 1005-8-1). All of 

the Illinois cases we will discuss later in this opinion arose under the latter version of the 

statute.) 

¶ 4 A presentence investigation report (PSI) indicated that the defendant had been convicted in 

two unrelated cases of two additional murders and one attempted murder. One of those cases 

involved the August 30, 1979, robbery of an auto parts store. The defendant and Girvies, his 

codefendant in this case, were both convicted of one count of murder and one count of 

attempted murder. The other case involved the May 11, 1979, murder of John Oertel, during a 
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home invasion. In addition, the PSI indicated that the defendant had three delinquency 

adjudications between 1975 and 1978. Two delinquency adjudications were for burglaries; the 

third involved three counts of criminal damage to property. 

¶ 5 The PSI included psychological evaluations of the defendant. Psychiatrist Dr. Syed Raza 

evaluated the defendant and diagnosed him with borderline or dull normal intelligence, 

anxiety, and depression. He stated, however, that these diagnoses were tentative because he 

believed that neurological testing was necessary to exclude neurological issues resulting from 

a head injury. 

¶ 6 Psychologist Cheryl Prost then performed a psychological evaluation. In her evaluation, 

Prost noted that there were indications of neurological impairment. She found that the 

defendant had a verbal IQ of 73 and a performance IQ of 64. These scores both fell within the 

borderline retarded range. Prost also pointed out that the defendant was admitted to the Warren 

G. Murray Children’s Home for a period of six weeks in 1976 when he was 15 years old. Prost 

noted that, during that time, staff observed that the defendant tended to be a follower and that 

his low IQ made him susceptible to bad influences from more intelligent peers. 

¶ 7 After reviewing Prost’s evaluation, Dr. Raza provided an addendum to his evaluation. Dr. 

Raza noted that although the defendant’s overall IQ was toward the lower end of the borderline 

mentally retarded range, his verbal IQ was high enough to give the defendant the ability to 

exercise judgment as to the difference between right and wrong. Dr. Raza concluded that the 

defendant was not “severely handicapped” in terms of his ability to differentiate right from 

wrong. 

¶ 8 The PSI also contained a brief family history as well as the observations of the probation 

officer who prepared the report, Linda Schulze. In the family history section, Schulze noted 

that the defendant’s father and stepfather both died while he was young. She further noted that 

the defendant reported to her that he had a close and loving relationship with his mother and 

siblings. Finally, Schulze noted that the defendant showed no remorse for Mrs. Sepmeyer or 

for the victims of any of his prior crimes. Schulze thus concluded that the defendant had “no 

predilection for rehabilitation.” 

¶ 9 At the sentencing hearing, the State’s Attorney highlighted the defendant’s criminal 

history and emphasized the fact that the victim was 83 years old and posed no threat to the 

defendant. He argued that, given the defendant’s history, a sentence of natural life in prison 

was necessary to protect the public from the defendant. In addition, he argued that such a 

sentence was necessary to deter others from “going out on similar killing sprees.” Defense 

counsel argued that the question before the court was whether the court “should assess natural 

life to this very young man.” Counsel asked the court to consider rehabilitation as a goal and 

argued that isolation in the prison system mitigates against that goal. 

¶ 10 The court offered the defendant an opportunity to make a statement. The defendant 

expressed no remorse for his role in the death of Esther Sepmeyer. Instead, he took issue with 

the prosecutor’s argument that he had been convicted of previous murders. He told the court, “I 

have been convicted as what they say as accessory of the murder, of knowing that this murder 

[may] have taken place. I was never convicted of no murder.”

¶ 11 Before pronouncing sentence, the court stated that it had considered the statutory factors in 

aggravation and mitigation. The court found no statutory factors in mitigation and stated that 

there were “many factors in aggravation.” The court then stated that it had considered the 

evidence presented at trial, the PSI, and the evidence and arguments presented at the 
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sentencing hearing. The court concluded, stating, “And the court believes that this Defendant 

cannot be rehabilitated and that it is important that society be protected from this Defendant.” 

The court therefore sentenced the defendant to natural life in prison. 

¶ 12 The defendant appealed his conviction, but did not challenge his sentence. This court 

affirmed the defendant’s conviction on direct appeal. People v. Holman, 115 Ill. App. 3d 60, 66 

(1983). Between 2001 and 2009, the defendant filed three petitions for leave to file 

postconviction petitions. He raised various challenges to his sentence, including claims based 

on Apprendi v. New Jersey, 530 U.S. 466 (2000), and our supreme court’s holding in People v. 

Miller, 202 Ill. 2d 328 (2002) (Leon Miller) (holding that a mandatory sentence of life in prison 

violates the eighth amendment if imposed for a murder committed by a juvenile convicted 

under a theory of accountability). Each petition was dismissed, and this court upheld those 

rulings on appeal. 

¶ 13 On October 7, 2010, the defendant filed the petition for leave to file a successive 

postconviction petition that is at issue in this appeal. In his pro se petition, he argued that his 

sentence of natural life in prison violated the constitution. He did not cite the eighth 

amendment, and he could not cite Miller v. Alabama, which had not yet been decided. On 

November 10, 2010, the circuit court entered an order denying the defendant’s petition for 

leave to file the postconviction petition. The court found that the defendant failed to allege 

facts to satisfy the cause-and-prejudice test. See 725 ILCS 5/122-1(f) (West 2010); People v. 

Pitsonbarger, 205 Ill. 2d 444, 460 (2002). The defendant appealed that ruling. 

¶ 14 The United States Supreme Court issued its decision in Miller in June 2012, while this 

matter was pending on appeal. The defendant argued on appeal that his sentence was 

unconstitutional pursuant to Miller. On December 31, 2012, this court affirmed the trial court’s 

order denying the defendant’s petition. We acknowledged that the First District had held that 

Miller applied retroactively to cases on collateral review. People v. Holman, 2012 IL App (5th) 

100587-U, ¶ 19 (citing People v. Williams, 2012 IL App (1st) 111145, ¶¶ 42-56, and People v. 

Morfin, 2012 IL App (1st) 103568, ¶¶ 35-59). However, we found that the defendant forfeited 

this claim by failing to identify the eighth amendment as the basis for the constitutional claim 

in his petition. Id. ¶ 18. We further found that he failed to satisfy the “cause” portion of the 

cause-and-prejudice test because the petition did not raise any claims that could not have been 

raised in earlier proceedings. Id. ¶ 16. We thus concluded that the defendant’s Miller argument 

was not properly before us. Id. ¶ 17. We then noted in dicta that Miller was not violated 

because the defendant here was “afforded a ‘sentencing hearing where natural life 

imprisonment [was] not the only available sentence.’ ” Id. ¶ 19 (quoting Morfin, 2012 IL App 

(1st) 103568, ¶ 59). 

¶ 15 Subsequently, Illinois courts, including this court, have relaxed the forfeiture rule further 

than this court was willing to do in the defendant’s first appeal. In People v. Luciano, a 

defendant filed a postconviction petition raising several challenges to his conviction. People v. 

Luciano, 2013 IL App (2d) 110792, ¶ 38. He did not challenge the constitutionality of his 

sentence, however. Id. ¶ 46. The trial court dismissed his petition in July 2011, which was 

nearly a year before the Supreme Court issued its decision in Miller. Id. ¶ 39. The defendant 

argued on appeal that his sentence was unconstitutional under Miller. Id. ¶ 43. The Second 

District rejected the State’s contention that the defendant had forfeited this argument. Id.

¶¶ 46-47. The court explained that an unconstitutional sentence is void and may therefore be 

challenged at any time. Id. ¶ 48. 
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¶ 16 Similarly, in People v. Johnson, this court considered an appeal from a trial court order 

which denied a postconviction petition before the Supreme Court issued its opinion in Miller. 

People v. Johnson, 2013 IL App (5th) 110112, ¶ 8. On appeal, the defendant challenged his 

sentence on the basis of Miller, which was decided while the matter was pending on appeal. Id.

In rejecting the State’s forfeiture argument, we first noted that the petition in that case alleged 

that the defendant’s sentence was unconstitutional because it did not “ ‘reflect *** his ability to 

be rehabilitated’ ” and because it was “ ‘cruel.’ ” Id. ¶ 13. We then stated, “We also note that 

Miller v. Alabama has only been recently decided and to ignore it and its applicability in the 

instant case would constitute a serious injustice.” Id.

¶ 17 Most importantly, our decision not to address the merits of the defendant’s Miller claim 

was further undermined by the Illinois Supreme Court in People v. Davis, 2014 IL 115595, 

cert. denied, 574 U.S. ___, 135 S. Ct. 710 (2014). There, the supreme court addressed the 

applicability of the cause-and-prejudice test and reached the merits of a Miller claim raised in a 

situation procedurally similar to the case before us. The defendant in Davis filed a petition for 

leave to file a successive postconviction petition. The petition, filed before Miller was decided, 

challenged the defendant’s natural-life sentence under the eighth amendment. This argument 

was based on Graham v. Florida, 560 U.S. 48 (2010). Davis, 2014 IL 115595, ¶ 9. On appeal, 

he also argued that the sentence was unconstitutional pursuant to Miller. Id. ¶ 10. The appellate 

court applied Miller retroactively (id.), and the State appealed that ruling to the Illinois 

Supreme Court (id. ¶¶ 11, 22). The supreme court held that Miller announced a new 

substantive rule of constitutional law to be applied retroactively. Id. ¶¶ 34-40; see also 

Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 735 (2016); Johnson, 2013 IL 

App (5th) 110112, ¶ 22. 

¶ 18 Significantly for purposes of this appeal, the Davis court went on to consider the relevance 

of Miller in applying the cause-and-prejudice test. The Post-Conviction Hearing Act (725 

ILCS 5/122-1 et seq. (West 2010)) contemplates that a defendant will file only one petition. 

Davis, 2014 IL 115595, ¶ 14 (citing Pitsonbarger, 205 Ill. 2d at 456). With limited exceptions 

not relevant here, a defendant will not be granted leave to file a successive petition unless he 

can establish both cause and prejudice for his failure to raise his claims in an earlier petition. 

Id. To establish “cause,” a defendant must allege that an “objective factor external to the 

defense” prevented counsel from raising the claim earlier. Id. “Prejudice” means an asserted 

constitutional error so serious that the resulting conviction or sentence violates due process. Id. 

The Davis court explained that “Miller’s new substantive rule constitutes ‘cause’ because it 

was not available earlier to counsel [citation], and [it] constitutes prejudice because it 

retroactively applies to [the] defendant’s sentencing hearing.” Id. ¶ 42. The supreme court 

subsequently directed this court to vacate our previous decision in this case and directed us to 

consider whether, in light of its holding in Davis, a different result was warranted. People v. 

Holman, No. 115597 (Ill. Jan. 28, 2015) (supervisory order). 

¶ 19 Upon reconsideration, we find that it is appropriate to address the merits of the defendant’s 

Miller claim. Our previous finding that the defendant failed to meet the cause-and-prejudice 

test is contrary to the supreme court’s ruling on that issue in Davis. In addition, in light of 

Johnson and Luciano, we believe it is appropriate to relax the forfeiture rule and consider the 

defendant’s arguments even though the eighth amendment was not raised in the defendant’s 

pro se petition. We now turn to those arguments. 
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¶ 20 The defendant argues that his sentence of natural life in prison violates the eighth 

amendment under the Supreme Court’s holding in Miller. Constitutionality of sentencing 

schemes is a question of law. Our review, therefore, is de novo. People v. Jones, 223 Ill. 2d 

569, 596 (2006). 

¶ 21 The eighth amendment provides that “ ‘[e]xcessive bail shall not be required, nor excessive 

fines imposed, nor cruel and unusual punishments inflicted.’ ” Graham v. Florida, 560 U.S. 

48, 58 (2010) (quoting U.S. Const., amend. VIII). This prohibition applies not only to forms of 

punishment that are “inherently barbaric,” but also to sentences that are “disproportionate to 

the crime.” Id. at 59. The Supreme Court has repeatedly emphasized that the requirement of 

proportionate sentencing is central to the protection afforded by the eighth amendment. Miller, 

567 U.S. at ___, 132 S. Ct. at 2463; Graham, 560 U.S. at 59. This means that sentences must be 

proportionate to both the offender and to the offense. Miller, 567 U.S. at ___, 132 S. Ct. at 

2463 (quoting Roper v. Simmons, 543 U.S. 551, 560 (2005), quoting Weems v. United States, 

217 U.S. 349, 367 (1910)).

¶ 22 Miller was one of a series of United States Supreme Court cases involving the 

proportionality of sentences imposed for serious crimes committed by juveniles. Id. at ___, 

132 S. Ct. at 2464-65 (discussing Graham and Roper). These cases, like other eighth 

amendment cases, required the Court to consider both the nature of the offense and the 

characteristics of the offender. Graham, 560 U.S. at 60. 

¶ 23 In considering the characteristics of young offenders, the Court explained that juveniles 

“are constitutionally different from adults for purposes of sentencing.” Miller, 567 U.S. at ___, 

132 S. Ct. at 2464. One key distinction is that a juvenile’s character is less fully formed and 

less permanently fixed than that of an adult. Thus, the actions of a juvenile offender are less 

likely than those of an adult to be the result of irreparable depravity. Id. at ___, 132 S. Ct. at 

2464 (quoting Roper, 543 U.S. at 570). This fact makes the possibility of rehabilitation a 

particularly appropriate consideration. Id. at ___, 132 S. Ct. at 2468. Another important 

difference between juveniles and adults is that juveniles are more susceptible to negative 

outside influences, including peer pressure and familial pressure. Id. at ___, 132 S. Ct. at 2464 

(quoting Roper, 543 U.S. at 569). The Court pointed out that a juvenile “cannot usually 

extricate himself” from a “brutal or dysfunctional” home environment. Id. at ___, 132 S. Ct. at 

2468. A third critical distinction identified by the Supreme Court is the fact that juveniles are 

less mature, less responsible, more impulsive, and more likely to take risks than their adult 

counterparts. Id. at ___, 132 S. Ct. at 2464 (quoting Roper, 543 U.S. at 569). The Court 

explained in Miller that because of these features, juvenile defendants have both “diminished 

culpability and [a] heightened capacity for change.” Id. at ___ , 132 S. Ct. at 2469. 

¶ 24 In assessing the nature of the offense, the Court has drawn “a line ‘between homicide and 

other serious violent offenses.’ ” Graham, 560 U.S. at 69 (quoting Kennedy v. Louisiana, 554 

U.S. 407, 438 (2008)). This is because the “Court has recognized that defendants who do not 

kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most 

serious forms of punishment than are murderers.” Id.

¶ 25 Finally, in considering whether a sentence itself is excessive or disproportionate, the Court 

has generally treated the death penalty differently from prison sentences. In death penalty 

cases, the Court has held that the eighth amendment requires “certain categorical restrictions.” 

Id. at 59. By contrast, cases involving challenges to the proportionality of prison terms have 

instead required the Court to consider whether the length of the sentence is “grossly 
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disproportionate” in light of all the circumstances of the particular case. Id. at 59-60. Such 

cases have not generally involved categorical restrictions. See id. at 61 (noting that a 

“categorical challenge to a term[ ]of[ ]years” was a question the Court had not previously 

considered). However, the Court has recognized that natural life without the possibility of 

parole is “ ‘the second most severe penalty permitted by law’ ” (id. at 69 (quoting Harmelin v. 

Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring in the 

judgment, joined by O’Connor and Souter, JJ.))) and that such sentences “share some 

characteristics with death sentences” (id.). In Graham and Miller, the Court also recognized 

that a sentence of natural life without the possibility of parole is a harsher sentence when 

imposed on a juvenile than it is when it is imposed on an adult offender. This is because the 

juvenile will spend a longer time in prison as a result of this sentence than will an adult 

offender. Miller, 567 U.S. at ___, 132 S. Ct. at 2466; Graham, 560 U.S. at 70.

¶ 26 Applying these principles in Graham, the Supreme Court held the eighth amendment 

requires a categorical ban on sentences of natural life without the possibility of parole for 

crimes other than homicide that are committed by juveniles. Graham, 560 U.S. at 82. The 

Court took care to distinguish between homicide and other felonies. Id. at 69. The Court 

explained that “when compared to an adult murderer, a juvenile offender who did not kill or 

intend to kill has a twice diminished moral culpability.” Id. This holding was therefore limited 

to nonhomicide cases. Id. at 82. 

¶ 27 Two years later in Miller, the Court considered a challenge to mandatory sentences of 

natural life in prison imposed for murders committed by juveniles. That case involved appeals 

by two 14-year-old defendants convicted of murder. Each defendant was sentenced to life in 

prison without the possibility of parole pursuant to state laws that did not give sentencing 

courts the discretion to impose any other sentence. Miller, 567 U.S. at ___, 132 S. Ct. at 2460. 

In determining that these sentences were not sanctioned under the eighth amendment, the 

Court reaffirmed that “Graham’s flat ban on life without parole applied only to nonhomicide 

crimes.” Id. at ___, 132 S. Ct. at 2465. However, the Court explained: 

“But none of what [the Graham Court] said about children–about their distinctive (and 

transitory) mental traits and environmental vulnerabilities–is crime-specific. Those 

features are evident in the same way, and to the same degree, when (as in both cases 

here) a botched robbery turns into a killing. So Graham’s reasoning implicates any 

life-without-parole sentence imposed on a juvenile, even as its categorical bar relates 

only to nonhomicide offenses.” Id. at ___, 132 S. Ct. at 2465. 

¶ 28 The Court then explained at length how mandatory sentencing schemes fail to take these 

features of youth into account. The Court explained: 

“Mandatory life without parole for a juvenile precludes consideration of his 

chronological age and its hallmark features–among them, immaturity, impetuosity, and 

failure to appreciate risks and consequences. It prevents taking into account the family 

and home environment that surrounds him–and from which he cannot usually extricate 

himself–no matter how brutal or dysfunctional. It neglects the circumstances of the 

homicide offense, including the extent of his participation in the conduct and the way 

familial and peer pressures may have affected him. Indeed, it ignores that he might 

have been charged and convicted of a lesser offense if not for incompetencies 

associated with youth–for example, his inability to deal with police officers or 

prosecutors (including on a plea agreement) or his incapacity to assist his own 
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attorneys. [Citations.] And finally, this mandatory punishment disregards the 

possibility of rehabilitation even when the circumstances most suggest it.” Id. at ___, 

132 S. Ct. at 2468. 

In addition, the Court explained that mandatory sentencing schemes are flawed because they 

do not allow sentencing courts to differentiate between a 17-year-old defendant and a 

14-year-old or between a shooter and an accomplice. Id. at ___, 132 S. Ct. at 2467-68. 

¶ 29 In light of these considerations, the Court held “that the Eighth Amendment forbids a 

sentencing scheme that mandates life in prison without possibility of parole for juvenile 

offenders.” Id. at ___, 132 S. Ct. at 2469. The Court stated that this holding would not 

“foreclose a sentencer’s ability” to impose such a sentence in homicide cases. Id. at ___, 132 S. 

Ct. at 2469. The Court noted, however, that “given all [the Court has] said *** about children’s 

diminished culpability and heightened capacity for change, we think appropriate occasions for 

sentencing juveniles to this harshest possible penalty will be uncommon.” Id. at ___, 132 S. Ct. 

at 2469. The Court further stated that its holding requires sentencing courts “to take into 

account how children are different, and how those differences counsel against irrevocably 

sentencing them to a lifetime in prison.” Id. at ___, 132 S. Ct. at 2469. 

¶ 30 The defendant acknowledges that the sentencing court in this case had the discretion to 

impose a sentence other than natural life. He argues, however, that his sentence runs afoul of 

Miller for two reasons. First, he argues that the court did not consider certain factors he 

contends the Miller Court required sentencing courts to consider. Second, he argues that, 

assuming Miller did not mandate consideration of set factors, there is no indication in the 

record that the sentencing court gave any weight to his status as a juvenile. We will consider 

these arguments in turn. 

¶ 31 The defendant first argues that his sentence does not comport with the requirements of 

Miller because the sentencing court did not hold a “Miller-type” hearing at which it considered 

what he refers to as the Miller factors. In support of this contention, the defendant cites a South 

Carolina decision which identified the Miller factors as: 

“(1) the chronological age of the offender and the hallmark features of youth, including 

‘immaturity, impetuosity, and failure to appreciate the risks and consequence’; (2) the 

‘family and home environment’ that surrounded the offender; (3) the circumstances of 

the homicide offense, including the extent of the offender’s participation in the conduct 

and how familial and peer pressures may have affected him; (4) the ‘incompetencies 

associated with youth–for example, [the offender’s] inability to deal with police 

officers or prosecutors (including on a plea agreement) or [the offender’s] incapacity to 

assist his own attorneys’; and (5) the ‘possibility of rehabilitation.’ ” Aiken v. Byars, 

765 S.E.2d 572, 577 (S.C. 2014) (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2468). 

The defendant points out that the statutory factors in mitigation considered by the sentencing 

court in this case did not include any of these factors. See Ill. Rev. Stat. 1979, ch. 38, 

¶ 1005-5-3.1. As such, he contends, his sentence must be vacated and this cause must be 

remanded for a new sentencing hearing that fully complies with what he sees as the 

requirements of Miller.

¶ 32 In response, the State acknowledges that the Miller Court mandated consideration of the 

mitigating characteristics of youth. The State, however, contends that although the Court 

provided an illustrative list of some of those characteristics, it did not mandate consideration of 

any specific factors. We agree with the State. 
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¶ 33 We first note that the state courts that have addressed the question of how to apply Miller in 

the context of discretionary natural-life sentences have reached differing conclusions. See 

State v. Riley, 110 A.3d 1205, 1214 n.5 (Conn. 2015) (noting that “there is no clear 

consensus”). Some courts have found that Miller requires consideration of set factors 

associated with youth, as the South Carolina Supreme Court found in Aiken. See, e.g., id. at 

1216; People v. Gutierrez, 324 P.3d 245, 268-69 (Cal. 2014) (describing five factors courts 

must consider before sentencing juvenile defendants to life in prison without parole); Bear 

Cloud v. State, 2013 WY 18, ¶ 42, 294 P.3d 36 (Wyo. 2013) (setting forth seven factors courts 

must consider in sentencing juveniles to life in prison without parole (quoting Miller, 567 U.S. 

at ___, 132 S. Ct. at 2467-68)). Other courts have concluded that as long as sentencing courts 

have the discretion to impose sentences other than natural life in prison without the possibility 

of parole, Miller is not violated. See, e.g., Foster v. State, 754 S.E.2d 33, 37 (Ga. 2014); 

Arredondo v. State, 406 S.W.3d 300, 307 (Tex. App. 2013). 

¶ 34 Still other courts have found that although the Miller Court did require sentencing courts to 

consider mitigating circumstances related to a juvenile defendant’s youth, it did not require 

courts to consider any set list of factors. See, e.g., State v. Ali, 855 N.W.2d 235, 257 (Minn. 

2014) (explaining that sentencing courts must consider “any mitigating circumstances,”

including those discussed by the Miller Court); State v. Long, 138 Ohio St. 3d 478, 

2014-Ohio-849, 8 N.E.3d 890, at ¶ 16 (finding that the factors adopted by the Wyoming 

Supreme Court in Bear Cloud “may prove helpful” to courts sentencing juvenile defendants, 

but refusing to require sentencing courts to make explicit findings with respect to any 

enumerated factors); Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (holding that the 

sentencing court in that case complied with the requirements of Miller by taking into account 

how juveniles are different from adults “ ‘and how those differences counsel against 

irrevocably sentencing them to a lifetime in prison’ ” (quoting Miller, 567 U.S. at ___, 132 S. 

Ct. at 2469)). 

¶ 35 We believe that this third approach is most consistent with the Court’s analysis in Miller.

We acknowledge that the factors enumerated by the South Carolina Supreme Court in Aiken

track the language of Miller. Compare Miller, 567 U.S. at ___, 132 S. Ct. at 2468, with Aiken, 

765 S.E.2d at 577. However, the Miller Court made these statements in the context of 

explaining “the flaws of imposing mandatory life-without-parole sentences on juvenile 

homicide offenders.” Miller, 567 U.S. at ___, 132 S. Ct. at 2467. The Court explained that such 

sentencing schemes, “by their nature, preclude a sentencer from taking account of an 

offender’s age and the wealth of characteristics and circumstances attendant to it.” (Emphasis 

added.) Id. at ___, 132 S. Ct. at 2467.The Court went on to describe various characteristics and 

circumstances that mandatory sentencing schemes “preclude[ ]” and “prevent[ ]” sentencing 

courts from considering. Id. at ___, 132 S. Ct. at 2468. In announcing its holding, however, the 

Court stated only that “a judge or jury must have the opportunity to consider mitigating 

circumstances” (id. at ___, 132 S. Ct. at 2475) and that its holding would “require [sentencers] 

to take into account how children are different, and how those differences counsel against”

imposing a sentence of life without parole (id. at ___, 132 S. Ct. at 2469). 

¶ 36 Our conclusion that Miller did not require sentencing courts to consider an enumerated set 

of factors is strengthened by the Court’s recent decision in Montgomery v. Louisiana. That 

decision gave the Court an opportunity to clarify its holding in Miller. At issue in Montgomery

was whether Miller should be applied retroactively. Montgomery, 577 U.S. at ___, 136 S. Ct. at 
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725. In reaching the conclusion that Miller does apply retroactively, the Court first determined 

whether Miller announced “a new substantive rule that, under the Constitution, must be 

retroactive.” Id. at ___, 136 S. Ct. at 732. In making this determination, the Court explained 

that its holding in Miller “did more than require a sentencer to consider a juvenile offender’s 

youth.” Id. at ___, 136 S. Ct. at 734. Rather, the Court explained, “Miller determined that 

sentencing a child to life without parole is excessive for all but ‘ “the rare juvenile offender 

whose crime reflects irreparable corruption.” ’ ” Id. at ___, 136 S. Ct. at 734 (quoting Miller, 

567 U.S. at ___, 132 S. Ct. at 2469, quoting Roper, 543 U.S. at 573). As such, the Court stated, 

its holding in Miller “rendered life without parole an unconstitutional penalty for” juvenile 

offenders whose crimes do not reflect irreparable corruption. Id. at ___, 136 S. Ct. at 734. 

¶ 37 The Montgomery Court acknowledged that the holding of Miller “has a procedural 

component.” Id. at ___, 136 S. Ct. at 734. The Court explained that this procedural 

component–a “hearing where ‘youth and its attendant characteristics’ are considered as 

sentencing factors”–is necessary to effectuate Miller’s substantive holding by enabling 

sentencing courts “to separate those juveniles who may be sentenced to life without parole 

from those who may not.” Id. at ___, 136 S. Ct. at 735 (quoting Miller, 567 U.S. at ___, 132 S. 

Ct. at 2460). The Court then discussed “the degree of procedure Miller mandated in order to 

implement its substantive guarantee.” Id. The Court noted that “Miller did not require trial 

courts to make a finding of fact regarding a child’s incorrigibility.” Id. at ___, 136 S. Ct. at 735. 

The Court explained that it did not require such a finding because in announcing new 

substantive rules of constitutional law, the Court “is careful to limit the scope of any attendant 

procedural requirement to avoid intruding more than necessary upon the States’ sovereign 

administration of their criminal justice systems.” Id. at ___, 136 S. Ct. at 735. 

¶ 38 We acknowledge that the Montgomery Court’s statements regarding the procedure 

mandated by Miller were dicta. The defendant in Montgomery was sentenced pursuant to a 

mandatory sentencing scheme. Id. at ___, 136 S. Ct. at 726. Thus, the Court was not called 

upon to consider whether the procedure followed by the sentencing court was adequate to 

comport with the requirement of Miller. Nevertheless, these statements provide useful 

guidance in interpreting Miller. The Montgomery Court’s statements regarding its intention to 

limit the scope of any procedural requirement lead us to conclude that the Court did not intend 

to require sentencing courts to make findings related to specific enumerated factors. 

¶ 39 We reiterate that the Montgomery Court stated that the purpose of Miller’s procedural 

component is to separate those rare juvenile defendants who are incorrigible–and may 

therefore be sentenced to life in prison without parole–from those juvenile defendants whose 

crimes reflect their transient immaturity–who may not receive such a sentence. Id. at ___, 136 

S. Ct. at 734. For the reasons that follow, we find that the procedure followed here was 

adequate to serve this purpose and, as such, sufficient to comply with the requirements of 

Miller. 

¶ 40 As we noted earlier, the defendant’s argument to the contrary focuses on the fact that the 

statutory factors in mitigation did not include the defendant’s age or any of the mitigating 

circumstances associated with youth that were discussed in Miller. See Ill. Rev. Stat. 1979, ch. 

38, ¶ 1005-5-3.1(a). However, it is important to emphasize that pursuant to case law, 

sentencing courts in Illinois were not limited to consideration of the statutory factors in 

mitigation. As our supreme court explained in 1977, a few years before the defendant in this 

case was sentenced, “A reasoned judgment as to the proper sentence to be imposed must be 
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based upon the particular circumstances of each individual case.” People v. Perruquet, 68 Ill. 

2d 149, 154 (1977) (citing People v. Bolyard, 61 Ill. 2d 583, 589 (1975)). The court further 

explained that this “judgment depends upon many factors, including the defendant’s 

credibility, demeanor, general moral character, mentality, social environment, habits, and 

age.” (Emphases added.) Id. (citing People v. Dukett, 56 Ill. 2d 432, 452 (1974)). It is also 

worth noting that Illinois law has long recognized a “ ‘marked distinction’ ” between juveniles 

and adults. Leon Miller, 202 Ill. 2d at 341-42 (quoting People ex rel. Bradley v. Illinois State 

Reformatory, 148 Ill. 413, 423 (1894)). As such, existing law required the sentencing court to 

look beyond the statutory factors in mitigation and consider any mitigating circumstances, 

including the defendant’s age and social environment. The court thus had the opportunity to 

consider all the mitigating circumstances related to the defendant’s youth, as required in 

Miller. See Miller, 567 U.S. at ___, 132 S. Ct. at 2475. 

¶ 41 Miller, however, requires not only that the sentencing court have the opportunity to 

consider these mitigating circumstances; it also requires that the court actually do so. See id. at 

___, 132 S. Ct. at 2469. As the Supreme Court explained in Montgomery, this is necessary so 

that the sentencing court can determine whether the juvenile defendant is so irredeemably 

corrupt that a life sentence without the possibility of parole is constitutionally permissible. See 

Montgomery, 577 U.S. at ___, 136 S. Ct. at 734. 

¶ 42 This brings us to the defendant’s second argument. He argues that the sentencing court did 

not, in fact, consider the mitigating circumstances of his youth. In support of this contention, he 

points to the court’s statement at the hearing that it found “no mitigating factors.” We believe 

this argument misconstrues the court’s statement. As we discussed earlier, the court stated that 

it had considered the statutory factors in aggravation and mitigation and found no mitigating 

factors. The court then went on to state that it considered the evidence in the PSI and the 

evidence presented at trial, as well as the arguments of counsel at the sentencing hearing. The 

evidence in the PSI included evidence related to the defendant’s youth and the mitigating 

features of youth, and defense counsel argued that the court should consider the defendant’s 

youth. Thus, we do not interpret the court’s statement as an indication that the court overlooked 

this important evidence. 

¶ 43 As we discussed earlier, the PSI revealed that the defendant had a low IQ and was 

susceptible to being influenced by more intelligent peers. In addition, the court was aware of 

the defendant’s age. (We note that on the first page of the PSI, the defendant’s date of birth is 

mistakenly listed as August 20, 1960, instead of August 20, 1961. However, his birth date is 

accurately reflected elsewhere in the PSI and also on the warrant for the defendant’s arrest. 

Moreover, the prosecutor stated at the sentencing hearing that the defendant was ineligible for 

the death penalty only due to “an accident of birth.” Thus, the court was aware that the 

defendant was a juvenile at the time he committed the offense.) Although it is not clear from 

the court’s statements how much weight the court gave these mitigating factors, we presume 

that the court takes into account mitigating evidence that is before it. People v. Smith, 214 Ill. 

App. 3d 327, 339 (1991). 

¶ 44 In this case, there was also ample aggravating evidence. The psychiatrist who evaluated the 

defendant concluded that the defendant was not severely impaired enough to be unable to 

differentiate right from wrong. It is also worth noting that the defendant turned 18 only five 

weeks after the murder. Thus, his age alone is less of a mitigating factor than it might be for a 

much younger defendant. See Miller, 567 U.S. at ___ n.8, 132 S. Ct. at 2469 n.8 (noting that 
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the holding of Miller would require sentencing courts to consider differences among juvenile 

defendants, enabling courts to distinguish between, for example, the 14-year-old defendants in 

Miller and 17-year-olds who commit “the most heinous murders” (internal quotation marks 

omitted)). 

¶ 45 The sentencing court considered the circumstances of the crime and the evidence presented 

at trial. See id. at ___, 132 S. Ct. at 2468 (noting that the circumstances of the offense are a 

relevant consideration). This evidence showed that the defendant actively participated in the 

robbery and murder of a defenseless 83-year-old woman. See Leon Miller, 202 Ill. 2d at 341. 

Moreover, the probation officer who prepared the report found that the defendant’s lack of 

remorse demonstrated that he had no potential to be rehabilitated. The defendant’s own 

statement at the hearing denying that he was previously convicted of murder provided 

additional evidence of his lack of remorse. In addition, the PSI included the defendant’s 

criminal record, which included three murder convictions over the course of three months as 

well as three juvenile delinquency adjudications, two of which were for serious felonies. 

¶ 46 Defense counsel urged the court to consider the defendant’s youth and fashion a sentence 

that offered him a chance for rehabilitation. The court expressly found that the defendant had 

no rehabilitative potential. In the face of all this aggravating evidence, this finding does not 

indicate, without more, that the court failed to consider the mitigating evidence before it. 

Moreover, this is precisely the determination Miller requires sentencing courts to make. See 

Montgomery, 577 U.S. at ___, 136 S. Ct. at 735; Miller, 567 U.S. at ___, 132 S. Ct. at 2469. We 

conclude that the sentencing hearing in this case comported with the requirements of Miller. 

¶ 47 Alternatively, the defendant argues that the holding of Miller should be extended to require 

a categorical bar against even discretionary sentences of natural life in prison without the 

possibility of parole for crimes committed by juveniles. Before addressing the merits of this 

contention, we must first address the State’s argument that this question is not properly before 

us. 

¶ 48 The State argues that consideration of this question exceeds the scope of the supreme 

court’s mandate. See People v. Abraham, 324 Ill. App. 3d 26, 30 (2001) (citing People v. 

Craig, 313 Ill. App. 3d 104, 106 (2000), and People v. Bosley, 233 Ill. App. 3d 132, 137 

(1992)). We disagree. The supreme court directed us to reconsider our previous decision in 

light of its holding in Davis and “to determine if a different result is warranted.” People v. 

Holman, No. 115597 (Ill. Jan. 28, 2015) (supervisory order). As discussed previously, in light 

of Davis, we found it appropriate to consider the defendant’s constitutional challenge on its 

merits. Consideration of the defendant’s challenge on its merits necessarily includes 

consideration of all of his related arguments. See People v. Harris, 388 Ill. App. 3d 1007, 1013 

(2009) (rejecting a claim that the trial court exceeded the appellate court mandate by 

considering issues raised in amended pleadings filed after remand); Abraham, 324 Ill. App. 3d 

at 31 (explaining that “the obvious implication of [a] remand order” is for the case to “continue 

in an ordinary manner”). We will therefore address the defendant’s argument. 

¶ 49 In support of his argument, the defendant points out that the Miller Court explicitly 

declined to decide whether the eighth amendment requires a categorical bar on sentences of 

life without parole for any juvenile defendant. The defendants there argued that such a 

categorical bar was constitutionally required, at least for defendants 14 or younger. The Court 

found it unnecessary to consider this alternative argument. Miller, 567 U.S. at ___, 132 S. Ct. 

at 2469. Likewise, although the Davis court stated that the “special status” of juvenile 
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defendants recognized in Graham and Miller did not preclude a sentence of natural life without 

parole for all juveniles who actively participate in multiple murders, the court did not consider 

this question in the context of an argument for the extension of Miller. Davis, 2014 IL 115595, 

¶ 45. Thus, the defendant is correct in asserting that the issue remains an open question. 

However, we are not persuaded by his contention that we must now expand the Court’s 

holding. 

¶ 50 We reach this conclusion for two reasons. First, as we have discussed, both Montgomery

and Miller explicitly state that, in rare instances, a sentence of natural life in prison without the 

possibility of parole will be appropriate for juvenile defendants. Montgomery, 577 U.S. at ___, 

136 S. Ct. at 734 (noting that “life without parole could be a proportionate sentence” for the 

rare juvenile defendant “whose crimes reflect irreparable corruption”); Miller, 567 U.S. at ___, 

132 S. Ct. at 2469 (stating that its holding does not foreclose sentencing courts from 

determining that such a sentence is appropriate). 

¶ 51 Second, Illinois courts that have remanded cases for resentencing pursuant to 

Miller–including this court and our supreme court–have consistently indicated that a 

natural-life sentence might still be appropriate on remand so long as the court has the discretion 

to consider other sentences. See Davis, 2014 IL 115595, ¶ 43; Johnson, 2013 IL App (5th) 

110112, ¶ 24; Luciano, 2013 IL App (2d) 110792, ¶ 63; Morfin, 2012 IL App (1st) 103568, 

¶ 59. We decline to depart from this interpretation. (We note that in Montgomery, the Supreme 

Court held that states could remedy Miller violations by allowing defendants serving life 

sentences for murders committed as juveniles to apply for parole, thereby making remand for 

new sentencing hearings unnecessary. Montgomery, 577 U.S. at ___, 136 S. Ct. at 736. This 

does not alter our conclusion.) 

¶ 52 The defendant argues, however, that the holding of Miller should be extended because, as 

he correctly asserts, eighth amendment jurisprudence evolves to reflect changing social mores 

and “evolving standards of decency” (internal quotation marks omitted) (Graham, 560 U.S. at 

58; see also Leon Miller, 202 Ill. 2d at 339). We are not persuaded. The Supreme Court issued 

its decision in Miller less than four years ago. Its decision in Montgomery, which reaffirmed its 

reasoning in Miller, was issued just weeks ago. The defendant does not explain how societal 

standards of decency have evolved in this short time to require this court to embrace a more 

expansive view of what constitutes cruel and unusual punishment than the one adopted by the 

Supreme Court in these very recent cases. 

¶ 53 For the foregoing reasons, we affirm the order of the trial court denying the defendant’s 

petition for leave to file a successive postconviction petition. 

¶ 54 Affirmed.