Case Information
*1
IN THE SUPREME COURT OF
THE STATE OF ILLINOIS (Docket No. 124046) THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ASHANTI LUSBY, Appellee.
Opinion filed October 22, 2020. JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Anne M. Burke and Justices Kilbride, Garman, Karmeier, and Michael J. Burke concurred in the judgment and opinion.
Justice Neville dissented, with opinion.
OPINION
In 2002, defendant Ashanti Lusby was convicted of first degree murder,
aggravated criminal sexual assault, and home invasion and sentenced to 130 years’ imprisonment. Though he was 23 years old at the time of the trial and the sentencing hearing, he was only 16 years old at the time of the offenses. After unsuccessful *2 direct appeal and postconviction proceedings, he filed a motion for leave to file a successive postconviction petition, asserting that his sentencing hearing was constitutionally inadequate under Miller v. Alabama , 567 U.S. 460 (2012). The circuit court of Will County denied that motion, but the appellate court reversed and remanded for a new sentencing hearing. For the reasons that follow, we reverse the appellate court’s decision and affirm the trial court’s decision. BACKGROUND In 1993, Jennifer Happ moved to Joliet to teach third grade at a public
elementary school. A year later, she purchased a condominium on the city’s west side, where she lived until 1996. Just before 9 p.m. on February 8, 1996, Happ spoke on the telephone with her
coworker and friend, Kelly Nesheim, about a trip together to Iowa over the following weekend. Around 9:30 p.m. Happ’s neighbors heard a gunshot from her home. One of the neighbors telephoned Happ, but she did not answer. After Happ did not arrive at school the next day, her teaching partner and friend, Trudy Bajt, asked her husband Steve Bajt, a Joliet Police Department detective, to visit Happ’s condominium to check on her. When Detective Bajt arrived at the condominium, the exterior and interior garage doors were open. Inside, a kitchen drawer was open, and the bedroom dresser was ransacked. Detective Bajt called the dispatcher and requested backup. He then reentered the condominium and found Happ lying dead on her couch. A subsequent medical examination revealed that she had been superficially incised across her neck and sexually assaulted while alive. She died from a hard-contact, execution-type gunshot wound to her forehead. Although police found fresh footprints in the mud outside Happ’s condominium leading toward nearby apartments, their investigation failed to identify the killer. Five years later, the case broke. In early 2001, DeWayne Williams sent a letter to the Joliet Police Department that recounted a conversation that he and the defendant had at the Will County jail in 1996 regarding Happ’s murder. Detectives interrogated the defendant. When they informed him that the investigation linked him to Happ’s murder, he responded “oh shit” but denied any knowledge of the crime. The police obtained a search warrant to secure blood and saliva from the defendant. A forensic scientist with the Illinois State Police laboratory determined *3 that bloodstains on a knife found near the couch in Happ’s condominium matched her genetic profile. Another forensic scientist with the state laboratory found one female and one male genetic profile in both the vaginal and rectal swabs taken from Happ’s body during her autopsy. The female profile obviously matched Happ; the male profile matched the defendant. He was charged in a 15-count indictment with first degree murder, aggravated criminal sexual assault, and home invasion. At trial, Darylyn Phillips, the defendant’s girlfriend in 1996, testified for the State. Phillips stated that, on a night in early February of that year, her father drove her to an apartment where the defendant lived with his mother and two sisters. The defendant and two friends, Williams and Fabian Carpenter, were watching a pornographic movie in the living room. Phillips spoke with one of the defendant’s sisters until the movie ended. At that time, the defendant went to his bedroom and emerged with a revolver, which he stuck into the front of his pants. He then left the apartment with Williams and Carpenter for 30 to 45 minutes. The three of them returned to the apartment, running up the stairs around 10 p.m. According to Phillips, “They just looked kind of excited a little bit.” She had never seen the defendant like that, explaining that “[h]e was just different” and “[a] little nervous maybe.” The defendant, Williams, and Carpenter went to the defendant’s bedroom and closed the door. Phillips asked them what they were doing, and they responded, “Nothing.” She left shortly thereafter. The defendant testified on his own behalf. He stated that on February 8, 1996,
around 5:30 p.m., he was walking home from a friend’s house, when he heard a man and a woman, whom he later identified as Happ, yelling from her condominium. He never saw the man, but he saw Happ standing in the front door wearing a T-shirt and apparently nothing else. The defendant stated that she asked him what he was looking at, and he answered that he was looking at her. She asked him his age, and he answered 18. Happ purportedly invited the defendant inside. She offered him a drink, but he refused. They sat on the couch together, and Happ swung her legs up and onto the defendant’s lap. He then realized that she was wearing underwear. The defendant stated that he watched television and she read a book for 10 to 15 minutes, after which she initiated physical contact. The defendant described a short period of consensual vaginal intercourse and
inadvertent anal intercourse. According to the defendant, Happ said “oh when it *4 went in the other place.” She pushed him away, stood and walked to the front door, opened it, and said “sorry, it’s a mistake, it’s been a mistake.” When she told him to leave, he did. The defendant testified that he was inside the condominium for 30 minutes and that he did not have a gun or touch a knife there. Happ was alive when he departed. He had never seen her before and never saw her after. He returned home, where he and Phillips argued for an hour. On cross-examination by the State, the defendant stated he was “shocked by the
whole incident” with Happ, though he was “pretty experienced in sex” at age 16. He explained that he lied about his age to Happ “to try to get at her.” His aim was to have a relationship with her “whatever day it comes up”—“maybe not then, but in the near future.” Once inside the condominium, the defendant and Happ did not converse. He estimated that they had intercourse at “6:30, almost 7:00, something like that maybe” and that when he left “[i]t couldn’t have been over 7:00.” He stated that he departed Joliet a few days later and stayed with his uncle in Chicago until April because he was “involved in a shooting” unrelated to Happ’s murder and did not want to go to jail. The defendant denied any knowledge of Happ’s murder until he spoke to police in 2001. A jury convicted the defendant on all 15 counts, but those convictions were
reduced to three: first degree murder, aggravated sexual assault, and home invasion. Because he was 16 years old at the time of the murder, he was not eligible for the death penalty, but the State sought an extended term of 60 to 100 years because the crime showed brutal and heinous behavior indicative of wanton cruelty. See 730 ILCS 5/5-8-1(a)(3) (West 2002). The defendant also faced terms of 6 to 30 years for aggravated criminal sexual assault and 6 to 30 years for home invasion. The statutory scheme mandated consecutive sentences, but the aggregate sentence could not exceed the maximum for the two most serious offenses. See id. § 5-8-4(a), (c)(2). The defendant’s maximum sentence, therefore, was 130 years. A Will County probation officer and a probation supervisor together prepared
a presentence investigation (PSI) report. The report spanned 11 pages, 3½ of which summarized the charges against the defendant and the remainder of which detailed his background. The defendant was born in Chicago in 1979 and moved to Joliet at age 10. He moved back to Chicago for a year at age 14 and returned to Joliet afterwards. The report referred to another PSI report completed in 1999, which *5 indicated that the defendant was expelled from a Chicago high school after tenth grade for “gang banging.” He received his general equivalency diploma (GED) while incarcerated in the Illinois Youth Center. The defendant had a history of alcohol, marijuana, and PCP use. He denied any current alcohol or drug use and claimed that he had completed drug treatment. According to the report, the defendant had no past or present mental health treatment or institutionalization. The report stated that “the defendant reportedly enjoys spending time with his children and family.” The defendant added that he had a good relationship with his parents and that they visited him often in jail, though the officials found no record that the defendant’s father had been there. The defendant had two sisters and two young daughters. The defendant’s criminal history was extensive. In 1996, he was adjudicated
delinquent for aggravated discharge of a firearm, incarcerated for nearly 16 months, and released on parole. The report noted that he was discharged from parole on April 14, 1998, and arrested on that date for robbery. In 1999, he was convicted of robbery and sentenced to 48 months’ probation. And in 2001, he was charged with resisting a police officer and given a $250 fine and then charged with aggravated battery. At the time of the report, that charge was still pending. The probation officials concluded the report with this comment:
“Presenting before the Court is a 23-year-old male convicted of several counts of First Degree Murder, Aggravated Criminal Sexual Assault and Home Invasion. He has several violent offense convictions, no employment history and an admitted substance abuse history. The defendant may benefit from counseling to control his violent tendencies.”
The State attached 21 victim impact statements as an addendum to the report. At the beginning of the sentencing hearing, the trial judge stated that he had reviewed the PSI report and asked if the parties had done so. In response to defense counsel’s objection to the prejudicial number of letters, the trial court stated, “I will base the decision on the facts of the case and not on these letters.” The State supplemented the report with a 1999 attempted obstruction of justice conviction where the defendant used the alias Dale Williams. Defense counsel accepted the State’s representations. Two witnesses testified for the State at the sentencing hearing. Robert Miller
stated that he was an inmate at the Will County jail with the defendant, who was awaiting trial in this case. The defendant erroneously accused Miller of “cutting” in line for the telephone and summoned him into the gym. When Miller got there, the defendant attacked him. Miller suffered a broken nose and a broken orbital bone, and he required stitches in his lip. Jean Happ, the victim’s mother, also testified, reading her impact statement. The defendant did not present any witnesses or offer any evidence at the hearing. In recommending a sentence, the State asked the court to “look at the
background of this individual for a minute through the PSI,” which included the defendant’s criminal history. The State alluded to the defendant’s age and rehabilitative potential:
“[A]t 16 years old this particular defendant has shown us what he can do at a young age. And as you begin to consider what to do in sentencing, you’ve got to consider what this guy can do the older he gets and what he might do in the latter part of his life because if the younger part of his life is an indication of what this guy’s potential is, this is a dangerous individual and he will continue to be dangerous well into his senior citizen years.
* * * *** From the acts in this case itself, from the cut mark to the throat, to the rape, to the murder, to the testimony, to the custody, to the background that this guy has, there is nothing here, Judge, in mitigation. That’s because he just doesn’t have it in him.”
The State urged the court to impose a sentence to ensure that the defendant would never again be released. Defense counsel simply urged the court to consider the defendant’s age, stating:
“Certainly you have to take into consideration what occurred, the nature of Miss Happ’s death. I understand that you also have to take into consideration my client’s age. We know that nobody is the same person forever. We learn that through our own experiences. We know good or bad sometimes it goes one way, sometimes it goes the other, but I don’t know any of us are the same person *7 at 17 and then at 27 and then at 37, 47 or whatever. I just ask you to exercise reason, your conscience, your experience in setting an appropriate sentence, Judge.”
In allocution, the defendant expressed remorse that Happ had died but continued to maintain his innocence, repeating that she was alive when he left the condominium. Regarding his altercation with Miller, the defendant explained, “I fight, we have problems.” He admitted that he has “been a little rough around the edges.” He insisted, however, that he was not a killer or a rapist, adding that, in the five years between her death and his arrest, he was never accused of killing or raping anyone else. The trial court then stated:
“[T]his is a case that is a very difficult case from the standpoint of the facts of the injuries and of the method of murder of the victim. It certain—certainly the defendant’s age is a factor at the very least to the extent that he is not eligible for the imposition of capital punishment based solely because of his age, because but for his age at under the age of 18, certainly this—these are the type of things, let me put it that way, that I have seen that all the attorneys that are in this trial have seen as facts that would—that could be considered capital punishment activities.
But I cannot, I cannot ignore the fact that Miss Happ was terrorized and sexually assaulted and humiliated and executed in her own home, and this was clearly a depraved act by you, Mr. Lusby, and it shows absolutely no respect for human life. It is ironic to me I guess that this Miss Happ was working to provide a positive influence on children in the area and the area that you lived in and even children that were—would be yours or your nieces or nephews or other family members might have been influenced positively by this woman, but your actions saw that didn’t happen.
So it is very difficult for me to consider any leniency in this case. It is very difficult for me to see any factors in mitigation. I have gone through the section on mitigation. There are no factors in mitigation that apply.
I have gone through the factors in aggravation and those factors there are many that apply, and I sincerely believe that the appropriate sentence is a sentence that will see that this does not occur outside of the Department of Corrections again. This is a choice that you made at a young age and I know that choices, youthful choices can be—are not, you know, sometimes are [ sic ] sometimes in very very poor judgment, but this is not one that can be taken back, and this is not one that can be considered minor, and this is not one that can be considered for anything but setting your future in the Department of Corrections.
From what I’ve seen here from everything that I have seen and heard in this trial this is a life you chose, a life of carrying weapons, a life of showing no respect for human life, and I am not at all uncomfortable in imposing the maximum sentence on the murder of 100 years. The consecutive sentence on the other two Class X offenses again the manner and method of this crime makes me convinced that it is not for me to minimize it in any way, and as a consequence I will impose an additional consecutive 30 years on each of these offenses. So that is the order of the Court.”
Thus, the court sentenced the defendant to 100 years’ imprisonment on the first degree murder conviction, followed by concurrent 30-year sentences for aggravated criminal sexual assault and home invasion, totaling 130 years’ imprisonment. The defendant filed a motion to reconsider, arguing that the trial court failed to consider his age and his potential for rehabilitation. Specifically, the defendant insisted that the court failed “to adequately consider the fact that [he] was a minor at the time of the offenses” and further “fail[ed] to adequately consider his potential for rehabilitation and return to useful citizenship” if provided “appropriate counseling and direction.” The trial court denied the motion, stating:
“I [think] these motions are required prior to a thorough appellate review.
It’s always difficult for the Trial Judge because you prepare yourself for
sentencing like this, you sit down and you look at everything. You look at the
law and look at the sentencing Code, because it’s confusing, and you try to
fashion the sentence appropriate and consisten[t] with the sentencing Code and
appropriate to the facts. I believe I felt comfortable with my sentence at the
time. I believe I followed the law as I understood it and took into account all
*9
the factors both in aggravation and in mitigation that apply here. So show the
motion to reconsider sentence presented and argued and denied.”
The defendant appealed, arguing that the State committed reversible error in
impeaching him with his post-
Miranda
silence and his refusal to provide a blood
sample for which a warrant had not been issued and that the plain error doctrine
excused his failure to object at trial. See
Miranda v. Arizona
,
he was denied due process when he was required to wear a stun belt in the presence
of the jury and that he was denied effective assistance of counsel because his
attorney did not object to the use of the belt. The trial court dismissed the
defendant’s petition, and the appellate court affirmed that decision.
People v. Lusby
,
377 Ill. App. 3d 1156 (2007) (table) (unpublished order under Illinois Supreme
Court Rule 23). This court denied the defendant’s petition for leave to appeal.
People v. Lusby
,
postconviction petition, arguing that his
de facto
life sentence violated the eighth
amendment under . See U.S. Const., amend. VIII. The State filed an objection
to the defendant’s motion, contending that
Miller
did not apply to this case because
Miller
addressed mandatory life sentences, not
de facto
life sentences. Further, the
State noted that
People v. Davis
,
(3d) 150189. Relying on
People v. Holman
,
establish prejudice under the cause-and-prejudice test because the trial court’s comments demonstrated that it considered defendant’s youth and its attendant characteristics at the sentencing hearing and again at the hearing on the defendant’s motion to reconsider. Id. ¶ 40 (Carter, P.J., dissenting). This court allowed the State’s petition for leave to appeal. See Ill. S. Ct. R.
315(a) (eff. July 1, 2018). We also allowed the Children and Family Justice Center and the Juvenile Law Center to file an amicus curiae brief in support of the defendant’s position. See Ill. S. Ct. R. 345(a) (eff. Sept. 20, 2010). ANALYSIS Under the Post-Conviction Hearing Act (Act), a criminal defendant may assert
that “in the proceedings which resulted in his or her conviction there was a
substantial denial of his or her rights under the Constitution of the United States or
of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2014). The Act itself
contemplates the filing of a single petition: “Any claim of substantial denial of
constitutional rights not raised in the original or an amended petition is waived.”
Id.
§ 122-3; see
People v. Daniel
, 379 Ill. App. 3d 748, 749 (2008) (noting that
waiver in the context of postconviction petitions is “better referred to as
‘forfeiture’ ”). Accordingly, a defendant must obtain leave of court to file a
successive petition. 725 ILCS 5/122-1(f) (West 2014) (“Only one petition may be
*11
filed by a petitioner under this Article without leave of the court.”). To do so, a
defendant must demonstrate cause for the failure to raise the claim in the initial
petition and prejudice from that failure.
Id.
Section 122-1(f) of the Act explains that
a defendant shows “cause by identifying an objective factor that impeded his or her
ability to raise a specific claim during his or her initial post-conviction proceedings”
and “prejudice by demonstrating that the claim not raised during his or her initial
post-conviction proceedings so infected the trial that the resulting conviction or
sentence violated due process.”
Id.
; see
People v. Pitsonbarger
,
the defendant showed cause and prejudice, rather than remanding the case so the
trial court could decide that issue without input from the State. Relying on
People
v. Munson
,
court must conduct a preliminary and independent screening of the defendant’s motion for leave to file a successive postconviction petition for facts demonstrating cause and prejudice. The trial court is capable of determining whether the motion made a prima facie showing, so there is “no reason for the State to be involved.” Id. ¶ 25. Accordingly, we held that “the State should not be permitted to participate at the cause and prejudice stage of successive postconviction proceedings.” Id. ¶ 24. As we did in Bailey , we choose to reach the merits of the defendant’s motion “[i]n the interest of judicial economy.” Id. ¶ 42. [1] The State helped to create the error of which it complains, and it should not benefit from that by forcing the defendant to
[1] The appellate court is not foreclosed from adopting that approach.
Munson
,
Baller
, and
Partida
incorrectly held the only remedy for a
Bailey
error is a remand. See
People v. Conway
, 2019 IL App
(2d) 170196, ¶ 23 (“
Bailey
*** indicates that, at least in some cases, considerations of judicial
economy militate against remand to the trial court”); accord
People v. Dolis
, 2020 IL App (1st)
180267;
People v. Coffey
,
of cause. See Davis , 2104 IL 115595, ¶ 42 (“ Miller ’s new substantive rule constitutes ‘cause’ because it was not available earlier to counsel”). Regarding prejudice, the State argues that the defendant’s sentencing hearing complied with Miller . According to the State, does not require a trial court to use “magic words” before sentencing a juvenile defendant to life imprisonment. Rather, Miller only requires a trial court to consider “youth-related factors.” The State insists that the trial court considered those factors in this case. The defendant disagrees. Echoing the appellate court majority, the defendant
asserts that the trial court made only a generalized statement about the poor judgment of adolescents. The defendant acknowledges that the court referred to his age in noting his ineligibility for the death penalty, but he insists that the court considered “almost no information” about him “as a unique, individual human being with unique, individual thoughts and feelings.” Instead, the court focused on Happ and the circumstances of her death. Relying on , the defendant contends that “even a horrific offense says nothing about the offender’s capacity—or lack of capacity—for rehabilitation.” While no “magic words” are required, the trial court must consider the defendant’s youth and its attendant circumstances in mitigation. The defendant argues that the trial court did not do so. The relevant legal principles are familiar. The United States Constitution
prohibits “cruel and unusual punishments.” U.S. Const., amend. VIII. That
prohibition includes not only inherently barbaric penalties but also disproportionate
ones.
Graham v. Florida
,
“By removing youth from the balance,” statutes imposing such sentences prohibit
a trial court from “assessing whether the law’s harshest term of imprisonment
proportionately punishes a juvenile offender.”
Id.
at 474. A court “misses too
much” if it cannot consider the hallmark features of youth.
Id.
at 477. Stated
differently, a court does not miss too much if it can and does consider those features.
See
id.
at 489 (stating that a sentencer “must have the opportunity to consider
mitigating circumstances before imposing the harshest possible penalty for
juveniles”). Thus,
Miller
did not foreclose the possibility of discretionary life
sentences for juveniles. Instead, the Court mandated a “certain process—
considering an offender’s youth and attendant characteristics” before a trial court
may impose such a sentence.
Id.
at 483. As the Court restated in
Montgomery v.
Louisiana
,
this court did so in . There, we explained the connection between those characteristics—the so-called factors—and incorrigibility:
[2] The parties agree that there are no “magic words.” Indeed, the Court has observed that “
Miller
did not require trial courts to make a finding of fact regarding a child’s incorrigibility.”
Montgomery
,
“Under Miller and Montgomery , a juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial court determines that the defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. The court may make that decision only after considering the defendant’s youth and its attendant characteristics. Those characteristics include, but are not limited to, the following factors: (1) the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family and home environment; (3) the juvenile defendant’s degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Holman ,2017 IL 120655 , ¶ 46.
See also
People v. Reyes
,
(
Montgomery
,
¶ 36 For each of the factors listed in , here is what the trial court in
this case heard and considered. ¶ 37 1. The Defendant’s Chronological Age at the Time of the
Offense and Any Evidence of His Particular Immaturity, Impetuosity, and Failure to Appreciate Risks and Consequences The defendant was 16 when he murdered Happ. Phillips, his girlfriend at the time, testified that he left his mother’s apartment on the night of the offenses carrying a revolver in the waist of his pants. He returned in a slightly excited or nervous state. The defendant testified that he lied about his age to Happ in order to improve his chances to have a sexual relationship with her. He added that at the time he was already experienced in such matters. The defendant admitted that days after Happ was killed he fled Joliet for Chicago, where he stayed with a relative for several months, to avoid being incarcerated for an unrelated shooting. The trial court reviewed the PSI report, which outlined the charges against the
defendant and noted that he had nothing to add when asked about them. At sentencing, both the State and the defense highlighted the defendant’s age at the time of the office. The trial court commented that the defendant’s age was “a factor” in that he was not eligible for the death penalty, despite the facts of the case. The court acknowledged that the defendant committed the offenses at a young age and that “youthful choices can be *** in very very poor judgment.” The court, however, concluded that the defendant’s conduct could not be taken back or considered minor. 2. The Defendant’s Family and Home Environment At trial, the evidence showed that the defendant lived with his mother and two
sisters in a Joliet apartment. According to the PSI report, he moved to Chicago during high school but was expelled after tenth grade for “gang banging” and moved back to Joliet. The defendant stated that he enjoyed spending time with his *16 family. The defendant further stated that he had a good relationship with both parents and they visited him in jail.
¶ 42 3. The Defendant’s Degree of Participation in the Homicide
and Any Evidence of Familial or Peer Pressures That May Have Affected Him ¶ 43 Phillips testified that the defendant, Williams, and Carpenter left the
defendant’s mother’s apartment shortly before Happ was killed and returned shortly thereafter. There was no evidence presented at trial that anyone except the defendant was responsible for her murder. And there was no evidence that peer pressure led him to kill her. Again, the PSI report showed that the defendant was expelled from a Chicago high school for “gang banging,” but nothing in the record suggests that the offenses were gang related. The defendant reportedly had a good relationship with his family. 4. The Defendant’s Incompetence, Including His Inability
to Deal With Police Officers or Prosecutors and His Incapacity to Assist His Own Attorneys There was no evidence presented at trial regarding the defendant’s incompetence. His testimony was clear, and his defense was vigorous. The defendant completed his GED while incarcerated as a juvenile. The PSI report indicated that he had a history of alcohol, marijuana, and PCP use, but he denied any current use and claimed to have completed drug treatment. The report did not mention any past or present mental health treatment or institutionalization. According to the probation officials, the defendant may benefit from counseling to control his violent tendencies. 5. The Defendant’s Prospects for Rehabilitation The PSI report detailed the defendant’s criminal history, which included a
delinquency adjudication for aggravated discharge of a firearm, an adult conviction for robbery, an adult misdemeanor conviction for resisting a police officer, and an *17 aggravated battery charge for an incident that occurred in the Will County jail, while he was awaiting trial in this case. The defendant also had an attempted obstruction of justice conviction under an alias. At the sentencing hearing, Miller testified that, while he and the defendant were
both incarcerated, the defendant attacked him in a dispute over the telephone. Miller suffered a broken nose and a broken orbital bone and required stitches in his lip. The defendant did not present any witnesses or offer any evidence at the hearing. He testified in allocution, expressing remorse that Happ had died, but continued to maintain his innocence. He informed the court that he was “rough around the edges” but, in the five years between her death and his arrest, he was never accused of murdering or raping anyone else. According to the State, “the younger part of his life is an indication of what this
guy’s potential is, this is a dangerous individual and he will continue to be dangerous well into his senior citizen years.” The State contended that the defendant had no rehabilitative potential—“he just doesn’t have it in him.” Defense counsel asked the court to consider the defendant’s age and the fact that people learn through experience. According to defense counsel, no one remains the same from age 17 to age 47. Thereafter, the court called Happ’s murder “clearly a depraved act” that showed
“absolutely no respect for human life.” The court felt that it was difficult to consider any leniency in this case. The court found no statutory factors in mitigation applied but that many statutory factors in aggravation did apply. From “everything” that the court had seen and heard in this case, the defendant chose “a life of carrying weapons, a life of showing no respect for human life,” so the court was not uncomfortable imposing the maximum sentence. The defendant’s motion to reconsider sentence again brought his age and
rehabilitative potential to the trial court’s attention. In ruling on the motion, the court reiterated that it was comfortable with the defendant’s sentence. The court stated that it looked at “everything,” including the Code of Corrections, and that it took into account all the statutory factors in aggravation and mitigation in fashioning a sentence appropriate to the facts.
¶ 52 The defendant had every opportunity to present mitigating evidence but chose
not to offer any. See ,
¶ 53 CONCLUSION
¶ 54 For the reasons that we have stated, we reverse the appellate court’s judgment
and affirm the trial court’s decision to deny the defendant’s motion for leave to file a successive postconviction petition. Appellate court judgment reversed. Circuit court judgment affirmed. JUSTICE NEVILLE, dissenting: Following a jury trial in the circuit court of Will County, defendant, Ashanti
Lusby, was convicted of first degree murder, aggravated criminal sexual assault,
and home invasion. Defendant was 16 years old at the time of the offenses. The
trial court sentenced defendant to a discretionary
de facto
life sentence of 130 years’
imprisonment. Defendant subsequently filed a motion for leave to file a successive
petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1
et seq.
(West 2014)). Defendant asserted that his
de facto
life sentence violated the
eighth amendment to the United States Constitution (U.S. Const., amend. VIII)
because the trial court did not consider his youth and attendant characteristics as
directed by
Miller v. Alabama
,
¶ 59 However, my colleagues in the majority now hold that defendant’s de facto life
sentence of 130 years “passes constitutional muster” under Miller . Supra ¶ 52. Accordingly, they hold that defendant has not demonstrated the requisite prejudice to file a successive postconviction petition. Supra ¶ 52. I respectfully disagree.
¶ 60 The majority opinion overlooks the essential principle of eighth amendment
juvenile sentencing jurisprudence that a de facto life sentence for a juvenile offender is rare and uncommon. Also, I disagree with the majority’s application of established eighth amendment principles to the facts presented in this case. I would hold that defendant’s 130-year sentence violates the eighth amendment and would remand the case to the trial court for a new sentencing hearing. Accordingly, I respectfully dissent. I. POSTCONVICTION PROCEDURAL BACKGROUND The majority correctly sets out the procedural posture of this case. Defendant is
required to satisfy the “cause and prejudice” test to file a successive postconviction
petition. 725 ILCS 5/122-1(f) (West 2014);
People v. Pitsonbarger
,
“cause.” Defendant could not have raised his
Miller
claim in his initial
postconviction petition because it predated .
Supra
¶ 23 (citing
People v.
Davis
,
did not consider defendant’s youth and attendant characteristics before sentencing
him to
de facto
life imprisonment.
¶ 65 For the following reasons, I conclude that defendant’s 130-year de facto life
sentence violates the eighth amendment. Therefore, I would hold that defendant satisfies the prejudice requirement for filing a successive postconviction petition.
¶ 66 II. EIGHTH AMENDMENT ANALYSIS I agree with the majority that “[t]he relevant legal principles are familiar.”
Supra ¶ 32. However, the majority’s analysis necessitates a review of eighth amendment juvenile sentencing jurisprudence. A. Foundational Principles The United States Constitution prohibits “cruel and unusual punishments” (U.S.
Const., amend. VIII) and applies to the states through the fourteenth amendment
(U.S. Const., amend. XIV).
Roper v. Simmons
,
different from adults for purposes of sentencing.’ ”
Buffer
,
“First, juveniles are more immature and irresponsible than adults. [Citation.] Second, juveniles are more vulnerable to negative influences and pressures from family and peers than adults. [Citation.] And third, juveniles are more malleable than adults—their characters are less fixed and their malfeasance is less indicative of irretrievable depravity. [Citation.] Those differences lessen juveniles’ moral culpability and enhance their prospects for reform.” Holman ,2017 IL 120655 , ¶ 35 (citing Miller ,567 U.S. at 471-72 ).
Graham , Roper , and Miller teach that, in imposing the State’s harshest penalties, a sentencing court misses too much if it treats every child as an adult. Miller , 567 U.S. at 477. Indeed, the Supreme Court took pains to emphasize its reasoning as follows:
“To recap: 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 pressure 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 attorneys. [Citations.] And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.” Id. at 477-78.
See
Buffer
,
“We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. [Citation.] By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Miller ,567 U.S. at 479 . In Miller , the Supreme Court declined to consider whether “the Eighth
Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.” Id. However, the Court reasoned:
“[G]iven all we have said *** about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to the harshest possible penalty will be uncommon. That is especially so because of the great difficulty *** of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ [Citations.] Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 479-80.
See
Buffer
,
the Supreme Court clarified that Miller established both a substantive and a procedural requirement:
“Miller , it is true, did not bar a punishment for all juvenile offenders, as the Court did in Roper or Graham. Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility. For that reason, is no less substantive than are Roper and Graham. Before Miller , every juvenile convicted of a homicide offense could be sentenced to life without parole. After Miller , it will be the rare juvenile offender who can receive that same sentence. The only difference between Roper and Graham , on the one hand, and , on the other hand, is that Miller *23 drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption.” ¶ 74 The Court in Montgomery added: “To be sure, Miller ’s holding has a procedural
component.
Miller
requires a sentencer to consider a juvenile offender’s youth and
attendant characteristics before determining that life without parole is a
proportionate sentence.”
Id.
at ___,
“A hearing where ‘youth and its attendant characteristics’ are considered as
sentencing factors is necessary to separate those juveniles who may be
sentenced to life without parole from those who may not. [Citation.] The
hearing does not replace but rather gives effect to
Miller
’s substantive holding
that life without parole is an excessive sentence for children whose crimes
reflect transient immaturity.”
Id.
at ___,
this court is indeed familiar with these foundational principles and their application. In the case at bar, however, the majority overlooks and misapprehends these constitutional precepts and misapplies them to the facts in the record. First, completely absent from the majority’s discussion of the controlling eighth
amendment jurisprudence is any reference to the fundamental principle that a
de facto
life sentence for a juvenile offender is “rare” and “uncommon.”
Montgomery
,
hearing, which did not address defendant’s youth and attendant characteristics. Third, the majority misperceives facts in the record that pertain to defendant’s family environment. Fourth, the majority neglects to analyze explicit evidence in *24 the record that supports the possibility of defendant’s rehabilitation. 1. De Facto Life Sentences Are Reserved for
Only Rare Juvenile Offenders The majority overlooks that the United States Supreme Court and this court
have repeatedly declared that life sentences are reserved for “uncommon,” “rare,”
or “the rarest of” children.
Montgomery
,
“Under and Montgomery , a juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial court determines that the defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. The court may make that decision only after considering the defendant’s youth and its attendant characteristics. Those characteristics include, but are not limited to, the following factors: (1) the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family and home environment; (3) the juvenile defendant’s degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” (Emphases added.) ,2017 IL 120655 , ¶ 46 (citing , 567 U.S. at 477-78).
Accordingly, in sentencing a juvenile, the balance of aggravating and mitigating
factors “must be considered in a different light. The factors in aggravation and
*25
mitigation must be filtered through the lens of youth and the specific propensities
that come with immaturity.”
People v. Johnson
,
that the trial court applied any presumption against imposing a de facto life sentence on a juvenile. Supra ¶¶ 18-19. This oversight rendered the trial court’s sentencing decision unconstitutional. In addition, the majority’s failure to recognize the rarity of de facto life sentences for juveniles skews its review away from the constitutional presumption against such sentences. 2. Trial Court Did Not Explicitly Consider Factors At the beginning of the sentencing hearing, the trial court expressly stated that
it had reviewed the presentence investigation (PSI) report. Further, the trial court expressly referred to defendant’s age twice in the course of its sentencing determination. First, the court observed that defendant’s age was a factor “to the extent that he is not eligible for the imposition of capital punishment.” Second, the trial court stated:
“This is a choice that you made at a young age and I know that choices, youthful
choices can be—are not, you know, sometimes are [
sic
] sometimes in very very
poor judgment, but this is not one that can be taken back, and this is not one
that can be considered minor, and this is not one that can be considered for
anything but setting your future in the Department of Corrections.”
The record clearly shows that the trial court did not consider the attendant
characteristics of defendant’s youth. A trial court’s mere awareness of a juvenile
defendant’s age and consideration of a PSI does not show that the court considered
the defendant’s youth and attendant characteristics. See
People v. Figueroa
, 2020
IL App (1st) 172390, ¶ 37 (citing
People v. Harvey
, 2019 IL App (1st) 153581,
¶ 13);
People v. Peacock
,
to defendant’s youth with a reference to this particular offense. However, this
consideration directly contravenes
the
teachings of eighth amendment
jurisprudence. The Supreme Court emphasized in
Miller
that “the distinctive
*26
attributes of youth diminish the penological justifications for imposing the harshest
sentences on juvenile offenders, even when they commit terrible crimes.”
Miller
,
protect the public, with no corresponding consideration given to defendant’s youth
and its attendant characteristics, the imposition of a life sentence on this juvenile
defendant was unconstitutional. See
People v. Paige
,
defendant’s family and home environment. Here, in reciting information from defendant’s PSI, the majority mentions that “defendant had two sisters” and that, according to defendant, “he had a good relationship with his parents and that they visited him often in jail, though the officials found no record that the defendant’s father had been there.” Supra ¶ 12. In its analysis regarding defendant’s “Family and Home Environment” ( supra ¶¶ 40-41), the majority opinion describes “what the trial court in this case heard and considered” ( supra ¶ 36), in total, as follows:
“At trial, the evidence showed that the defendant lived with his mother and
two sisters in a Joliet apartment. According to the PSI report, he moved to
Chicago during high school but was expelled after tenth grade for ‘gang
banging’ and moved back to Joliet. The defendant stated that he enjoyed
spending time with his family. The defendant further stated that he had a good
relationship with both parents, and they visited him in jail.”
Supra
¶ 41.
This description misperceives facts in the record. In this case, the PSI expressly
reports that defendant is the middle child of three siblings. Defendant committed
his crimes in 1996 at age 16. His older sister committed theft in 1998 at age 23, and
his younger sister committed theft in 1999 at age 17. Defendant’s siblings’
involvement in criminal activity is evidence that indicates a dysfunctional home
*27
environment, which is a recognized mitigating factor against imposing a
de facto
life sentence on a juvenile offender. See
Miller
,
“The defendant stated that he has a good relationship with both parents and that they visit him often in jail. According to the Will County Adult Detention Facility, the defendant’s father is not even listed as one of the defendant’s visitors, and there is no record that he has ever visited. The undersigned officer was unable to verify the defendant’s parental relationship. ” (Emphasis added.) One of the ways that children are constitutionally different from adults for
purposes of sentencing is that juveniles are more vulnerable to negative influences
and pressures from family than adults.
Miller
,
concluded with the following item:
“SPECIAL RESOURCES FOR DEFENDANT: Presenting before the Court is a 23-year old male convicted of several counts of First Degree Murder, Aggravated Criminal Sexual Assault and Home Invasion. He has several violent offense convictions, no employment history and an admitted substance abuse history. The defendant may benefit from counseling to control his violent tendencies. ” (Emphasis added.)
However, this recommendation is absent from the majority opinion’s analysis. See supra ¶¶ 47-52. In its discussion of the Miller factors, the majority opinion states: “No single
factor is dispositive.” Supra ¶ 35. This statement is constitutionally incorrect. Consideration of a juvenile defendant’s capacity for rehabilitation is crucial, if not dispositive, in the Miller analysis. As the Supreme Court explained in Montgomery :
“Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity. [Citation.] Because determined that sentencing a child to life without parole is excessive for all but the rare juvenile offender whose crime reflects irreparable corruption [citation], it rendered life without parole an unconstitutional penalty for a class of defendants because of their status—that is, juvenile offenders whose crimes reflect the transient immaturity of youth.” (Internal quotation marks omitted.) Montgomery ,577 U.S. at ___,136 S. Ct. at 734 .
A life sentence “ ‘forswears altogether the rehabilitative ideal.’ [Citation.] It reflects
‘an irrevocable judgment about [an offender’s] value and place in society,’ at odds
with a child’s capacity for change.” ,
“Under and
Montgomery
, a juvenile defendant may be sentenced to
life imprisonment without parole,
but only
if the trial court determines that the
defendant’s conduct showed irretrievable depravity, permanent incorrigibility,
or irreparable corruption
beyond the possibility of rehabilitation
. The court may
make that decision only after considering the defendant’s youth and its
attendant characteristics.” (Emphases added.)
Holman
,
skewed away from the constitutional presumption against life sentences for juveniles. Initially, in its discussion of defendant’s PSI, the majority overlooks that defendant’s parole officer recommended available counseling services for defendant. See supra ¶¶ 47-52. Further, the majority described the trial court’s sentencing determination as follows: “From ‘everything’ that the court had seen and heard in this case, the defendant chose ‘a life of carrying weapons, a life of showing no respect for human life,’ so the court was not uncomfortable imposing the maximum sentence.” Supra ¶ 50. Again, the majority overlooks the constitutional principle that defendant’s
supposed “choices” must be presumed to be based on “the transient immaturity of
youth” (
Montgomery
,
these considerations in their arguments. However, as the court in Figueroa observed:
“Most importantly, the trial court did not assess defendant’s prospects for rehabilitation. It is true that the prosecutor and defense counsel addressed these points, to varying degrees, in their arguments. But that did not relieve the trial court of its obligation to ‘take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,’ before sentencing defendant to a de facto life term.” Figueroa , 2020 IL App (1st) 172390, ¶ 37 (quoting ,567 U.S. at 480 ).
Our appellate court has repeatedly held that a trial court’s failure to expressly
consider a juvenile offender’s potential for rehabilitation renders a life sentence
unconstitutional under the eighth amendment and requires a new sentencing
hearing. See
People v. Gregory
, 2020 IL App (3d) 190261, ¶¶ 40-42 (trial court
made no comments from which appellate court could infer finding that the
defendant was beyond the possibility of rehabilitation);
People v. Reyes
, 2020 IL
App (2d) 180237, ¶ 31 (“the record does not show that the trial court made any
determination that the defendant was beyond rehabilitation or that the defendant’s
conduct reflected permanent incorrigibility”);
Paige
, 2020 IL App (1st) 161563,
¶¶ 39-40 (where evidence was presented on potential for the defendant’s
rehabilitation and where trial court focused on brutality of crime, “with no
corresponding consideration given to defendant’s opportunity for rehabilitation, the
imposition of a life sentence on a juvenile defendant was unconstitutional”);
People
v. Thornton
,
year de facto life sentence unconstitutional and is dispositive of this appeal. The majority opinion’s analysis of eighth amendment juvenile sentencing jurisprudence is constitutionally erroneous. III. CONCLUSION There is no question that juvenile offenders who commit heinous murders
deserve severe punishment. However, we cannot lose sight of the fact that juveniles
are different from adults due to a juvenile’s lack of maturity, underdeveloped sense
of responsibility, vulnerability to peer pressure, and the less fixed nature of the
juvenile’s character.
Miller
, 567 U.S. at 471-73. Notwithstanding a juvenile
defendant’s diminished responsibility and greater capacity for reform that
ordinarily distinguishes juveniles from adults, the question a trial court must answer
at the time of sentencing is whether the juvenile is so irretrievably depraved,
permanently incorrigible, or irreparably corrupt as to be beyond the possibility of
rehabilitation and thus unfit ever to reenter society.
Montgomery
,
Court’s eighth amendment requirements for sentencing juvenile offenders or the
Illinois Constitution’s requirement that penalties be determined with the objective
of restoring the offender to useful citizenship. Ill. Const. 1970, art. I, § 11.
I note that defendant’s sentencing hearing, held in 2002, predated the United
States Supreme Court’s decisions in
Miller
(2012) and
Montgomery
(2016), and
this court’s decisions in
Holman
(2017) and
Buffer
(2019). Therefore, the trial court
did not have the benefit of this eighth amendment jurisprudence. Where sentences
imposed on juvenile defendants fail to comport with and its progeny, this
court and our appellate court have not hesitated to vacate the unconstitutional
sentences and remand the cases for resentencing. See,
e.g.
,
Buffer
,
sentence of 130 years’ imprisonment “passes constitutional muster.” Supra ¶52. I would hold that defendant satisfies the prejudice requirement for filing a successive *32 postconviction petition. Therefore, I would affirm the judgment of the appellate court, which correctly reversed the denial of defendant’s motion for leave to file a successive postconviction petition and remanded the case to the trial court for resentencing. Accordingly, I respectfully dissent.