People v. Davis

2014 IL 115595

                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                                    (Docket No. 115595)

      THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ADDOLFO DAVIS,
                               Appellee.


                                Opinion filed March 20, 2014.



        JUSTICE FREEMAN delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis
     concurred in the judgment and opinion.



                                          OPINION

¶1       The circuit court of Cook County denied defendant, Addolfo Davis, leave to file a
     successive petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS
     5/122-1 et seq. (West 2010)). The appellate court affirmed the order of the circuit court
     in part and vacated in part. Relying on Miller v. Alabama, 

567 U.S. ___

, 

132 S. Ct. 2455

 (2012), the appellate court vacated defendant’s sentence and remanded the cause
     to the circuit court for resentencing. 

2012 IL App (1st) 112577-U

. This court allowed
     the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). We now
     affirm the judgment of the appellate court.



¶2                                   I. BACKGROUND

¶3      The appellate court has previously recited the details of defendant’s convictions
     and sentences. See, e.g., People v. Davis, 

388 Ill. App. 3d 869

 (2009); People v. Davis,
     No. 1-93-1821 (1995) (unpublished order under Supreme Court Rule 23). We need not
     repeat those details here. Rather, we summarize the pertinent facts for purposes of the
     issues raised in this appeal.

¶4        On October 9, 1990, Bryant Johnson and Keith Whitfield were fatally shot. On
     October 11, defendant was arrested and questioned regarding his role in the shootings.
     Born on August 4, 1976, defendant was 14 years old when he was arrested. In January
     1991, following a discretionary transfer hearing under the Juvenile Court Act of 1987
     (Ill. Rev. Stat. 1989, ch. 37, ¶ 805-4(3)(a)), the juvenile division of the circuit court of
     Cook County entered an order permitting defendant to be prosecuted under the
     criminal laws.

¶5        In February 1991, defendant was charged in a 31-count indictment for crimes
     relating to the shootings. 1 In March 1993, defendant was convicted of the first degree
     murders of Johnson and Whitfield, the attempted first degree murders of Melvin
     Harvey and Keith McGee, and home invasion. Defendant was sentenced in April 1993.
     Because defendant was found guilty of murdering more than one victim, section
     5-8-1(a)(1)(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(c) (West
     1992)) required the trial court to sentence defendant to a term of natural life
     imprisonment, for which parole is not available (730 ILCS 5/3-3-3(d) (West 1992)).
     Defendant was also sentenced to 30 years’ imprisonment for each count of attempted
     first degree murder and home invasion, all sentences to run concurrently. On direct
     review, the appellate court affirmed defendant’s convictions and sentences. People v.
     Davis, No. 1-93-1821 (1995) (unpublished order under Supreme Court Rule 23),
     appeal denied, 

165 Ill. 2d 556

 (1996) (table).

¶6       In October 1996, defendant filed his first pro se postconviction petition, which the
     circuit court summarily dismissed in November 1996. In December 1996, defendant
     filed a second pro se postconviction petition with a motion for substitution of judge. In
     March 1997, the circuit court dismissed this petition. Defendant appealed from the
     dismissal of both the first and second postconviction petitions. The appellate court
     affirmed the circuit court’s rulings. People v. Davis, No. 1-98-2277 (1999)
     (unpublished order under Supreme Court Rule 23), appeal denied, 

185 Ill. 2d 639

     (1999) (table). In November 1998, defendant filed his third pro se postconviction
     petition, which the circuit court dismissed. Defendant appealed and the appellate court

         1
           Two codefendants were separately indicted for their roles in the shootings. Defendant and
     codefendant Aaron Caffey were tried simultaneously with separate juries; codefendant Eugene Bowman
     received a separate bench trial.
                                                 -2-
     affirmed the dismissal. People v. Davis, 1-99-0159 (1999) (unpublished order under
     Supreme Court Rule 23), appeal denied, 

187 Ill. 2d 576

 (2000) (table).

¶7       In September 2002, defendant filed a petition for relief from judgment pursuant to
     section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)). The
     circuit court treated this petition as another postconviction petition and appointed
     counsel, who filed a supplemental petition. Relying on People v. Miller, 

202 Ill. 2d 328

     (2002) (hereinafter in text Leon Miller), defendant argued that his natural life sentence
     was unconstitutional because he did not actually participate in the act of killing.
     Defendant obtained new counsel, who filed a second supplemental postconviction
     petition. Defendant argued that his sentence violated the eighth amendment to the
     United States Constitution and, further, that the statute requiring a mandatory life
     sentence violated the Illinois Constitution as applied to a 14-year-old defendant.

¶8       Following a hearing, the circuit court dismissed the petition in January 2007. The
     court found this case distinguishable from Leon Miller, where that defendant only acted
     as a lookout and did not enter the building where the actual murder occurred. In this
     case, the court found that defendant significantly participated in the murders: he
     actually went to the crime scene with his codefendants; he carried a weapon to the
     crime scene, which he perhaps dropped; and defendant actually entered the abode
     where the murders occurred. Defendant appealed, and the appellate court affirmed the
     dismissal. People v. Davis, 

388 Ill. App. 3d 869

 (2009), appeal denied, 

233 Ill. 2d 571

     (2009) (table), cert. denied, 

130 S. Ct. 1707

 (2010).

¶9       The instant appeal comes to us from defendant’s “Motion For Leave To File A
     Verified Successive Post-Conviction Petition,” which he filed in April 2011.
     Defendant made two claims: (1) his mandatory life sentence without parole violated
     the eighth amendment to the United States Constitution pursuant to Graham v. Florida,
     

560 U.S. 48

 (2010); and (2) he received ineffective assistance of counsel at his juvenile
     transfer hearing because his counsel failed to interview an eyewitness prior to the
     hearing. In August 2011, the circuit court denied defendant leave to file the successive
     petition. First, the court noted Graham’s holding that a mandatory life sentence without
     parole could not be imposed on juvenile offenders who did not commit homicide. The
     court found that Graham did not apply to the instant case because defendant was
     convicted of two first degree murders, as well as two attempted murders and home
     invasion. Second, the court found that defendant received effective assistance of
     counsel at his juvenile transfer hearing.


                                             -3-
¶ 10       While defendant’s appeal was pending in the appellate court, the United States
       Supreme Court decided Miller v. Alabama, 

567 U.S. ___

, 

132 S. Ct. 2455

 (2012), in
       which the Court held that “mandatory life without parole for those under the age of 18
       at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and
       unusual punishments.’ ” 

Id.

 at ___, 132 U.S. at 2460. Defendant filed a substitute brief
       in the appellate court incorporating Miller. The appellate court concluded that Miller
       applies retroactively on postconviction review. Consequently, the appellate court
       vacated in part the circuit court’s order denying leave to file a successive petition,
       vacated defendant’s sentence, and remanded for a new sentencing hearing. However,
       the appellate court upheld the circuit court’s denial of defendant’s claim of ineffective
       assistance of counsel. 

2012 IL App (1st) 112577-U

.

¶ 11        The State appeals to this court. We granted leave to the following groups to file
       amici curiae briefs in support of defendant: Retired Judges et al.; Law Professors;
       Illinois Coalition for the Fair Sentencing of Children et al.; American Correctional
       Chaplains Association et al.; Amnesty International et al.; and Former Youthful
       Offenders. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). Additional pertinent background will
       be discussed in the context of our analysis of the issues.



¶ 12                                      II. ANALYSIS

¶ 13       The Post-Conviction Hearing Act provides a procedural mechanism through which
       a criminal defendant can assert that his federal or state constitutional rights were
       substantially violated in his original trial or sentencing hearing. 725 ILCS 5/122-1(a)
       (West 2012); People v. Pitsonbarger, 

205 Ill. 2d 444, 455

 (2002). A postconviction
       proceeding is not a substitute for a direct appeal, but rather is a collateral attack on a
       prior conviction and sentence. People v. Edwards, 

2012 IL 111711, ¶ 21

; People v.
       Tenner, 

206 Ill. 2d 381, 392

 (2002). “The purpose of the post-conviction proceeding is
       to allow inquiry into constitutional issues involved in the original conviction and
       sentence that have not been, and could not have been, adjudicated previously on direct
       appeal.” People v. Towns, 

182 Ill. 2d 491, 502

 (1998). Accordingly, issues that were
       raised and decided on direct appeal are barred from consideration by the doctrine of res
       judicata; issues that could have been raised, but were not, are considered forfeited.
       People v. Ortiz, 

235 Ill. 2d 319

, 328 (2009); Pitsonbarger, 

205 Ill. 2d at 456, 458

; see
       725 ILCS 5/122-3 (West 2012) (stating that “[a]ny claim *** not raised in the original
       or an amended petition is waived”).

                                               -4-
¶ 14        Consistent with these principles, the Post-Conviction Hearing Act contemplates the
       filing of only one postconviction petition. 725 ILCS 5/122-1(f) (West 2012); Ortiz, 235
       Ill. 2d at 328; Pitsonbarger, 

205 Ill. 2d at 456

. Consequently, a defendant faces
       immense procedural default hurdles when bringing a successive postconviction
       petition. Because successive petitions impede the finality of criminal litigation, these
       hurdles are lowered only in very limited circumstances. Tenner, 

206 Ill. 2d at 392

. One
       such basis for relaxing the bar against successive postconviction petitions is where a
       petitioner can establish “cause and prejudice” for the failure to raise the claim earlier.
       We observe that following Pitsonbarger, the General Assembly added section 122-1(f)
       to the Act, which codifies our cause-and-prejudice case law. People v. Tidwell, 

236 Ill. 2d 150, 156

 (2010); Ortiz, 235 Ill. 2d at 330. “Cause” refers to some objective factor
       external to the defense that impeded counsel’s efforts to raise the claim in an earlier
       proceeding. “Prejudice” refers to a claimed constitutional error that so infected the
       entire trial that the resulting conviction or sentence violates due process. 725 ILCS
       5/122-1(f) (West 2012); Ortiz, 235 Ill. 2d at 329; Pitsonbarger, 

205 Ill. 2d at 460, 464

.
       Both prongs must be satisfied for the defendant to prevail. People v. Guerrero, 

2012 IL 112020, ¶ 15

. It is within this procedural framework that we address the issues
       presented.



¶ 15                             A. Constitutionality of Sentence

¶ 16       The appellate court vacated defendant’s sentence and remanded defendant’s case to
       the circuit court for resentencing pursuant to principles articulated in Miller v.
       Alabama, 

567 U.S. ___

, 

132 S. Ct. 2455

 (2012). The analyses of the lower courts, as
       well as the arguments of counsel before this court, require a thorough discussion of the
       controlling principles.



¶ 17                            1. Eighth Amendment Principles

¶ 18       The eighth amendment prohibits, inter alia, the imposition of “cruel and unusual
       punishments,” and applies to the States through the fourteenth amendment. Roper v.
       Simmons, 

543 U.S. 551, 560

 (2005) (collecting cases). “The concept of proportionality
       is central to the Eighth Amendment.” Graham v. Florida, 

560 U.S. 48, 59

 (2010). The
       eighth amendment’s ban on excessive sanctions flows from the basic principle that
       criminal punishment should be graduated and proportioned to both the offender and the

                                               -5-
       offense. Miller, 

567 U.S. at ___

, 

132 S. Ct. at 2463

; Roper, 

543 U.S. at 560

. To
       determine whether a punishment is so disproportionate as to be “cruel and unusual,” a
       court must look beyond history to “the evolving standards of decency that mark the
       progress of a maturing society.” Trop v. Dulles, 

356 U.S. 86, 101

 (1958) (plurality op.);
       see Miller, 

567 U.S. at ___

, 

132 S. Ct. at 2463

; Graham, 

560 U.S. at 59

; Roper, 

543 U.S. at 561

.

¶ 19       Roper, Graham, and Miller form a line of United States Supreme Court decisions
       that address how the eighth amendment’s ban on “cruel and unusual punishments”
       applies to sentencing juveniles. The Court recognized three general differences
       between juveniles under 18 and adults. First, juveniles have a lack of maturity and an
       underdeveloped sense of responsibility. Second, juveniles are more vulnerable or
       susceptible to negative influences and outside pressures, including peer pressure.
       Third, the character of a juvenile is not as well formed as that of an adult. The Court
       concluded that these differences render the irresponsible conduct of juveniles not as
       morally reprehensible as that of an adult. Graham, 

560 U.S. at 68

; Roper, 

543 U.S. at 569-70

. In Roper, 

543 U.S. at 578

, the Court held: “The Eighth and Fourteenth
       Amendments forbid imposition of the death penalty on offenders who were under the
       age of 18 when their crimes were committed.” In Graham, 

560 U.S. at 74

, the Court
       held that the eighth amendment forbids the sentence of life without parole “for a
       juvenile offender who did not commit homicide.” The Court further held that a “State
       need not guarantee the offender eventual release, but if it imposes a sentence of life it
       must provide him or her with some realistic opportunity to obtain release before the end
       of that term.” 

Id. at 82

.

¶ 20       In Miller, the Court considered appeals by “two 14-year-old offenders ***
       convicted of murder and sentenced to life imprisonment without the possibility of
       parole. In neither case did the sentencing authority have any discretion to impose a
       different punishment.” Miller, 

567 U.S. at ___

, 

132 S. Ct. at 2460

. Relying on its earlier
       decisions in Roper and Graham, the Court in Miller recognized that “children are
       constitutionally different from adults for purposes of sentencing” (id. at ___, 

132 S. Ct. at 2464

), and that “in imposing a State’s harshest penalties, a sentencer misses too
       much if he treats every child as an adult.” 

Id.

 at ___, 

132 S.Ct. at 2468

. The Court
       explained that a mandatory sentence precludes consideration of such mitigating
       circumstances as: the juvenile offender’s age and its attendant characteristics; the
       juvenile’s family and home environment and the circumstances of the offense,
       including the extent of the juvenile’s participation therein and the effect of any familial
       or peer pressure; the juvenile’s possible inability to interact with police officers or
                                                -6-
       prosecutors, or incapacity to assist his or her own attorneys; and “the possibility of
       rehabilitation even when the circumstances most suggest it.” 

Id.

 at ___, 

132 S. Ct. at 2468

.

¶ 21       Based on the above, the Court held:

               “[A] judge or jury must have the opportunity to consider mitigating
               circumstances before imposing the harshest possible penalty for juveniles. By
               requiring that all children convicted of homicide receive lifetime incarceration
               without possibility of parole, regardless of their age and age-related
               characteristics and the nature of their crimes, the mandatory sentencing
               schemes before us violate this principle of proportionality, and so the Eighth
               Amendment’s ban on cruel and unusual punishment.” 

Id.

 at ___, 

132 S. Ct. at 2475

.

       Although the Court refused to declare categorically that a juvenile can never receive
       life imprisonment without parole for a homicide offense, the Court stated that “given
       all we have said in Roper, Graham, and this decision ***, we think appropriate
       occasions for sentencing juveniles to this harshest possible penalty will be
       uncommon.” 

Id.

 at ___, 

132 S. Ct. at 2469

.

¶ 22       Before this court, the State challenges the appellate court’s retroactive application
       of Miller v. Alabama to defendant’s postconviction proceeding. Defendant not only
       defends the appellate court’s judgment, but, seeking cross-relief, further contends that
       Miller renders the statutory scheme under which he was convicted facially
       unconstitutional. We address defendant’s contention first.



¶ 23                               2. Facial Unconstitutionality

¶ 24       Defendant contends that Miller “renders the statutory scheme under which he was
       sentenced void.” Therefore, according to defendant: his resulting sentence is void; he
       can raise this claim in this collateral proceeding; and he is entitled to a new sentencing
       hearing under the applicable sentencing provision as it existed prior to its allegedly
       unconstitutional form.

¶ 25       If a new constitutional rule renders a statute facially unconstitutional, the statute is
       void ab initio. Lucien v. Briley, 

213 Ill. 2d 340, 344

 (2004). When a court declares a
       statute unconstitutional and void ab initio, the court means only that the statute was
                                                -7-
       constitutionally infirm from the moment of its enactment and, therefore, is
       unenforceable. People v. Blair, 

2013 IL 114122, ¶ 30

. A facial challenge to the
       constitutionality of a statute is the most difficult challenge to mount. Napleton v.
       Village of Hinsdale, 

229 Ill. 2d 296, 305

 (2008); People v. Greco, 

204 Ill. 2d 400, 407

       (2003). A statute is facially unconstitutional only if there are no circumstances in which
       the statute could be validly applied. Napleton, 

229 Ill. 2d at 306

; Lucien, 

213 Ill. 2d at 344

. The fact that the statute could be found unconstitutional under some set of
       circumstances does not establish the facial invalidity of the statute. In re Parentage of
       John M., 

212 Ill. 2d 253, 269

 (2004). Thus, a facial challenge must fail if any situation
       exists where the statute could be validly applied. In re M.T., 

221 Ill. 2d 517, 533

 (2006)
       (and cases cited therein).

¶ 26       Further, a sentence that violates the constitution is void from its inception (People
       v. Brown, 

225 Ill. 2d 188, 203

 (2007)), and may be attacked at any time and in any
       court, either directly or collaterally. People v. Thompson, 

209 Ill. 2d 19, 27

 (2004).
       Whether a statute is unconstitutional is a question of law, which is reviewed de novo.
       People v. Kitch, 

239 Ill. 2d 452, 466

 (2011).

¶ 27        As earlier recited, defendant was sentenced pursuant to section 5-8-1(a)(1)(c) of the
       Unified Code of Corrections. When defendant was sentenced in April 1993, that
       section was codified in the Illinois Compiled Statutes in pertinent part: “(1) for first
       degree murder, *** (c) if the defendant *** (ii) is found guilty of murdering more than
       one victim *** the court shall sentence the defendant to a term of natural life
       imprisonment.” (Emphasis added.) 730 ILCS 5/5-8-1(a)(1)(c) (West 1992). We
       observe that at the time of his offenses, that section provided in pertinent part: “(1) for
       first degree murder *** (c) if the defendant has previously been convicted of first
       degree murder under any state or federal law or is found guilty of murdering more than
       one victim, the court shall sentence the defendant to a term of natural life
       imprisonment.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, ¶ 1005-8-1(a)(1)(c).
       Subsection (c)’s provision of mandatory life imprisonment for multiple murders was
       added by Public Act 81-1118. Pub. Act 81-1118 (eff. July 1, 1980) (adding Ill. Rev.
       Stat. 1981, ch. 38, ¶ 1005-8-1(a)(1)(c)).

¶ 28        Defendant argues that subsection (c) is facially unconstitutional because under no
       circumstances does the statute permit a sentencer “to consider age and its relevant
       mitigating factors in compliance with Miller.” According to defendant, he is entitled to
       be resentenced under section 5-8-1 as it existed prior to the addition of the mandatory
       life provision. See Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-8-1. We disagree.
                                                -8-
¶ 29       Miller itself expressly limited its prohibition of mandatory sentences of life without
       parole to juveniles. Explaining that “children are different” in terms of the eighth
       amendment, the Court observed that a sentencing rule that may be impermissible for
       children may be permissible for adults. Miller, 

567 U.S. at ___

, 

132 S. Ct. at 2470

.

¶ 30       In the case at bar, the mandatory sentence of life without parole for defendants who
       commit multiple murders, as provided in section 5-8-1(a)(1)(c), can be validly applied
       to adults. Because there are situations where the statute can be validly applied, it is not
       facially unconstitutional. See, e.g., People v. Williams, 

2012 IL App (1st) 111145, ¶ 47

.

¶ 31      However, defendant insists that this analysis fails to consider whether the
       applicable statutory scheme—which includes Illinois’s juvenile transfer statute—is
       void ab initio. This argument lacks merit. As earlier recited, defendant received a
       juvenile transfer hearing pursuant to section 805-4(3) of the Juvenile Court Act of
       1987, which provided in pertinent part:

                  “(3)(a) If a petition alleges commission by a minor 13 years of age or over
              of an act which constitutes a crime under the laws of this State, and, on motion
              of the State’s Attorney, a Juvenile Judge, designated by the Chief Judge of the
              Circuit to hear and determine such motions, after investigation and hearing but
              before commencement of the adjudicatory hearing, finds that it is not in the best
              interests of the minor or of the public to proceed under this Act, the court may
              enter an order permitting prosecution under the criminal laws.

                  (b) In making its determination on a motion to permit prosecution under the
              criminal laws, the court shall consider among other matters: (1) whether there
              is sufficient evidence upon which a grand jury may be expected to return an
              indictment; (2) whether there is evidence that the alleged offense was
              committed in an aggressive and premeditated manner; (3) the age of the minor;
              (4) the previous history of the minor; (5) whether there are facilities particularly
              available to the Juvenile Court for the treatment and rehabilitation of the minor;
              (6) whether the best interest of the minor and the security of the public may
              require that the minor continue in custody or under supervision for a period
              extending beyond his minority; and (7) whether the minor possessed a deadly
              weapon when committing the alleged offense.” (Emphases added.) Ill. Rev.
              Stat. 1989, ch. 37, ¶ 805-4.

¶ 32       This provision did not prohibit the circuit court from considering any and all
       relevant circumstances attendant to defendant’s age, as required by Miller. Indeed, this
                                                -9-
       provision requires such consideration. We hold that Miller did not render the statutory
       scheme under which defendant was sentenced facially unconstitutional. Since
       defendant fails in his facial challenge to the statutory scheme under which he was
       sentenced, we next consider whether Miller applies to defendant’s mandatory sentence
       of life imprisonment without parole.



¶ 33                                     3. Retroactivity of Miller

¶ 34       The State contends that Miller should not be retroactively applied to cases on
       collateral review. Employing the standards for such application as expressed in Teague
       v. Lane, 

489 U.S. 288

 (1989) (plurality op.), the appellate court concluded that Miller
       must be applied retroactively to defendant’s successive postconviction petition and
       ordered a new sentencing hearing. 

2012 IL App (1st) 112577-U

, ¶¶ 16-18. Indeed, we
       observe that several panels of our appellate court have concluded that Miller applies
       retroactively to cases on collateral review. See, e.g., People v. Williams, 

2012 IL App (1st) 111145

; People v. Morfin, 

2012 IL App (1st) 103568

; People v. Luciano, 

2013 IL App (2d) 110792

; People v. Johnson, 

2013 IL App (5th) 110112

. We agree with this
       conclusion.

¶ 35       In Teague, the United States Supreme Court established standards for determining
       when a new constitutional rule would apply to federal habeas corpus actions pending
       in federal courts. In People v. Flowers, 

138 Ill. 2d 218

 (1990), this court acknowledged
       that Teague arose in the context of federal habeas corpus. However, this court
       considered the analysis enunciated therein “helpful and concise,” and adopted it as a
       matter of state law for collateral proceedings pursuant to the Post-Conviction Hearing
       Act. 

Id. at 237-39

. 2 The purpose of the Teague analysis is to promote the government’s
       interest in finality of criminal convictions. “ ‘Application of constitutional rules not in
       existence at the time a conviction became final seriously undermines the principle of
       finality which is essential to the operation of our criminal justice system. Without
       finality, the criminal law is deprived of much of its deterrent effect.’ ” 

Id.

 at 239
       (quoting Teague, 

489 U.S. at 309

).


           2
             We acknowledge that the United States Supreme Court has subsequently clarified Teague. First:
       “Since Teague is based on statutory authority that extends only to federal courts applying a federal
       statute, it cannot be read as imposing a binding obligation on state courts.” Danforth v. Minnesota, 

552 U.S. 264, 278-79

 (2008). Second, the Teague analysis “was meant to apply only to federal courts
       considering habeas corpus petitions challenging state-court criminal convictions.” 

Id. at 279

.
                                                     - 10 -
¶ 36       A judicial decision that establishes a new constitutional rule applies to all criminal
       cases pending on direct review. Schriro v. Summerlin, 

542 U.S. 348, 351

 (2004);
       People v. Erickson, 

117 Ill. 2d 271, 288

 (1987). However, as to convictions that are
       already final, the new rule is not to be applied retroactively to cases on collateral review
       except in two instances. First:

              “New substantive rules generally apply retroactively. This includes decisions
              that narrow the scope of a criminal statute by interpreting its terms [citations],
              as well as constitutional determinations that place particular conduct or persons
              covered by the statute beyond the State’s power to punish [citations]. Such rules
              apply retroactively because they ‘necessarily carry a significant risk that a
              defendant stands convicted of “an act that the law does not make criminal” ’ or
              faces a punishment that the law cannot impose upon him.” (Emphasis in
              original.) Schriro, 

542 U.S. at 351-52

 (and cases cited therein).

       Second:

                  “New rules of procedure, on the other hand, generally do not apply
              retroactively. They do not produce a class of persons convicted of conduct the
              law does not make criminal, but merely raise the possibility that someone
              convicted with use of the invalidated procedure might have been acquitted
              otherwise. Because of this more speculative connection to innocence, we give
              retroactive effect to only a small set of watershed rules of criminal procedure
              implicating the fundamental fairness and accuracy of the criminal proceeding.”
              (Internal quotation marks omitted.) 

Id. at 352

.

       In other words, the watershed rule of criminal procedure is a rule that is implicit in the
       concept of ordered liberty, without which the likelihood of an accurate conviction is
       seriously diminished. People v. Sanders, 

238 Ill. 2d 391, 401

 (2010); People v. Morris,
       

236 Ill. 2d 345, 359

 (2010); see Teague, 

489 U.S. at 311-13

.

¶ 37       As the Court explained in Schriro, courts sometimes refer to constitutional
       determinations that place particular conduct or persons covered by the statute beyond
       the State’s power to punish as an exception to Teague’s bar on retroactive application
       of procedural rules. However, “they are more accurately characterized as substantive
       rules not subject to the bar.” (Emphasis added.) Schriro, 

542 U.S. at 352

 n.4. As noted,
       several panels of our appellate court have concluded that Miller applies retroactively to
       postconviction proceedings. However, those panels have differed in their application of
       the Teague analysis to Miller.
                                                - 11 -
¶ 38       In the instant case, the appellate court relied on Williams, which concluded that
       Miller constitutes a watershed rule of criminal procedure, or requires the observance of
       those procedures that are implicit in the concept of ordered liberty. 

2012 IL App (1st) 112577-U

, ¶ 16 (quoting People v. Williams, 

2012 IL App (1st) 111145, ¶¶ 51-52

). In
       contrast, another panel of our appellate court concluded that Miller constituted a new
       substantive rule. See People v. Morfin, 

2012 IL App (1st) 103568, ¶ 56

. We observe
       that the special concurrence in Morfin opined that a new substantive rule is outside of
       the bar of Teague and concludes the analysis. Id. ¶¶ 62-68 (Sterba, J., specially
       concurring). We agree with the views expressed in Morfin.

¶ 39       In concluding that Miller constitutes a new substantive rule, the court in Morfin
       reasoned:

              “While [Miller] does not forbid a sentence of life imprisonment without parole
              for a minor, it does require Illinois courts to hold a sentencing hearing for every
              minor convicted of first degree murder at which a sentence other than natural
              life imprisonment must be available for consideration. Miller mandates a
              sentencing range broader than that provided by statute for minors convicted of
              first degree murder who could otherwise receive only natural life
              imprisonment.” Id. ¶ 56.

       As the Iowa Supreme Court recognized: “From a broad perspective, Miller does
       mandate a new procedure. Yet, the procedural rule for a hearing is the result of a
       substantive change in the law that prohibits mandatory life-without-parole sentencing.”
       State v. Ragland, 

836 N.W.2d 107, 115

 (Iowa 2013). In other words, Miller places a
       particular class of persons covered by the statute—juveniles—constitutionally beyond
       the State’s power to punish with a particular category of punishment—mandatory
       sentences of natural life without parole. See Miller, 

567 U.S. at ___

, ___, 

132 S. Ct. at 2464, 2468

; Diatchenko v. District Attorney for the Suffolk District, 

1 N.E.3d 270, 277

       (Mass. 2013). Since Miller declares a new substantive rule, it applies retroactively
       without resort to Teague. See Schriro, 

542 U.S. at 351

-52 & n.4.

¶ 40        Also, we find it instructive that the Miller companion case, Jackson v. Hobbs, arose
       on state collateral review. Notwithstanding its finality, the Court retroactively applied
       Miller and vacated Jackson’s sentence. While our analysis is independent as a matter of
       Illinois law, the relief granted to Jackson under Miller tends to indicate that Miller
       should apply retroactively on collateral review. See People v. Williams, 

2012 IL App (1st) 111145, ¶ 54

; People v. Morfin, 

2012 IL App (1st) 103568, ¶ 57

.

                                              - 12 -
¶ 41       We observe that defendant and several amici assert that this court should depart
       from Teague and adopt a different rule of retroactivity. However, we do not rely on
       Teague in our analysis because we view Miller as a new substantive rule, which is
       outside of Teague rather than an exception thereto. Accordingly, we need not and do
       not address this argument. See People v. Campa, 

217 Ill. 2d 243, 269-70

 (2005)
       (reviewing court will not decide nonessential issues or render advisory opinions).

¶ 42       In terms of the requisite cause and prejudice of the Post-Conviction Hearing Act,
       Miller’s new substantive rule constitutes “cause” because it was not available earlier to
       counsel (Pitsonbarger, 

205 Ill. 2d at 460-61

), and constitutes prejudice because it
       retroactively applies to defendant’s sentencing hearing. See 725 ILCS 5/122-1(f) (West
       2012).

¶ 43       Miller holds that a mandatory life sentence for a juvenile violates the eighth
       amendment prohibition against cruel and unusual punishment. In the case at bar,
       defendant, a juvenile, was sentenced to a mandatory term of natural life without parole.
       Therefore, his sentence is invalid, and we uphold the appellate court’s vacatur thereof.
       We observe that Miller does not invalidate the penalty of natural life without parole for
       multiple murderers, only its mandatory imposition on juveniles. See People v. Luciano,
       

2013 IL App (2d) 110792, ¶¶ 62-63

. A minor may still be sentenced to natural life
       imprisonment without parole so long as the sentence is at the trial court’s discretion
       rather than mandatory. See Miller, 

567 U.S. at ___

, 

132 S. Ct. at 2469

; Miller, 

202 Ill. 2d at 341

; People v. Johnson, 

2013 IL App (5th) 110112, ¶ 24

. We remand for a new
       sentencing hearing, where the trial court may consider all permissible sentences.



¶ 44                                 4. Illinois Constitution

¶ 45      Seeking cross-relief, defendant presents several additional contentions. Defendant
       contends that his mandatory sentence of life imprisonment without parole offends both
       the proportionate penalties clause and the due process clause of the Illinois
       Constitution. Ill. Const. 1970, art. I, §§ 2, 11. However, these contentions were raised
       and rejected previously. People v. Davis, No. 1-93-1821 (1995) (unpublished order
       under Supreme Court Rule 23); People v. Davis, 

388 Ill. App. 3d 869

 (2009). In
       support of these contentions, defendant relies on the Court’s “reaffirmation of the
       special status of children” in Graham and Miller. However, in Leon Miller, this court
       expressly recognized the special status of juvenile offenders prior to Roper, Graham,
       and Miller. Nonetheless, this court concluded that such special status does not
                                              - 13 -
       necessarily prohibit a sentence of natural life without parole where a juvenile offender
       actively participates in the planning of a crime that results in multiple murders. Miller,
       

202 Ill. 2d at 341-42

. Accordingly, the rejection of this contention is res judicata and
       cannot be relitigated here. See, e.g., People v. Pulliam, 

206 Ill. 2d 218, 246-47

 (2002);
       People v. Neal, 

142 Ill. 2d 140, 146-47

 (1990).



¶ 46                        5. Defendant Did Not Kill or Intend to Kill

¶ 47        Regardless of whether defendant is entitled to a new sentencing hearing pursuant to
       Miller, defendant contends that this court “should make clear that his sentence is
       unconstitutional in any event under Graham *** because he did not kill or intend to
       kill.” We reject this contention.

¶ 48        In Graham, the Court observed generally 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,” and that homicide is distinguishable from
       other serious violent offenses against persons. Graham, 

560 U.S. at 69

. The Court
       reasoned: “It follows that, when compared to an adult murderer, a juvenile offender
       who did not kill or intend to kill has a twice diminished moral culpability. The age of
       the offender and the nature of the crime each bear on the analysis.” 

Id.

 Therefore, the
       Court held that the eighth amendment forbids the sentence of life imprisonment
       without parole for a juvenile defendant who did not commit homicide. 

Id. at 74, 82

.

¶ 49       By its own terms, Graham does not apply to the case at bar. Defendant was
       convicted of the first degree murder of two victims, and the attempted first degree
       murder of two additional victims. Thus, Graham does not categorically prohibit
       defendant from receiving a sentence of natural life when he is resentenced.

¶ 50        Defendant insists that, “even absent a categorical rule,” his sentence of life
       imprisonment without parole is unconstitutional “in light of his young age and
       individual circumstances.” However, defendant now will have the opportunity, for the
       first time, to present this exact argument at his new sentencing hearing. Therefore, we
       decline to address it.




                                                - 14 -
¶ 51                            B. Effective Assistance of Counsel

¶ 52        In addition to his claims pertaining to his sentence, defendant claims that he
       received ineffective assistance of counsel at his juvenile transfer hearing because his
       counsel failed to interview an eyewitness prior to the hearing. The circuit court denied
       leave to file this claim, and the appellate court upheld the denial. Our review is de novo.
       See People v. Edwards, 

197 Ill. 2d 239, 247

 (2001) (quoting People v. Coleman, 

183 Ill. 2d 366, 388

 (1998)).

¶ 53       Defendant attached the 2010 affidavit of Lamont Baxter to the instant successive
       postconviction petition. Prior to defendant’s juvenile transfer hearing, Baxter testified
       before a grand jury regarding defendant’s involvement in the crimes. The testimony
       was entered into evidence at defendant’s juvenile transfer hearing. Baxter subsequently
       testified at defendant’s trial. Before the grand jury, Baxter testified that defendant and
       his codefendants all possessed guns, and they all discussed whether they would kill
       everyone at the scene or allow one particular person to live. See Davis, 

388 Ill. App. 3d at 872

. However, in his affidavit, Baxter averred that he “did not see if [defendant] had
       a gun,” and that “defendant was not part of that conversation, and he did not say a
       word.” Baxter additionally averred that he “did not remember [defendant] saying
       anything during the incident. The whole time he looked like a scared kid being told
       what to do by [a codefendant, who] was the ringleader and was doing most of the
       talking.” Also, Baxter “did not remember” being interviewed by defendant’s lawyer
       prior to trial.

¶ 54       The appellate court correctly upheld the circuit court’s denial of leave to file this
       claim. As this is defendant’s fifth request for collateral review, the procedural default
       hurdles are “immense.” See Tenner, 

206 Ill. 2d at 392

. In his first postconviction
       petition, defendant claimed that trial counsel was ineffective for not raising an insanity
       defense. In his second postconviction petition, defendant claimed that his trial and
       appellate counsel were ineffective. In his third postconviction petition, defendant
       claimed that trial counsel was ineffective for failing to produce exculpatory witnesses.
       Davis, 

388 Ill. App. 3d at 875

. The appellate court found that defendant “has failed to
       meet his burden of showing cause due to his failure to identify an objective factor that
       impeded his ability to raise his claim of ineffective assistance of juvenile court counsel
       during his three prior postconviction petitions which asserted ineffective assistance of
       counsel.” 

2012 IL App (1st) 112577-U

, ¶ 22.



                                               - 15 -
¶ 55       Before this court, defendant argues that juvenile court counsel’s deficient
       representation was not discovered until his current postconviction counsel spoke with
       Baxter in December 2010. We reject this argument. Defendant fails to explain why he
       was unable to discover this allegedly new evidence earlier, or raise this or a similar
       claim in any of his earlier postconviction proceedings. A defendant is not permitted to
       develop the evidentiary basis for a claim in a piecemeal fashion in successive
       postconviction petitions, as defendant has attempted to do here. See People v.
       Erickson, 

183 Ill. 2d 213, 226-27

 (1998).

¶ 56       We hold that defendant has failed to establish “cause” for failing to raise this claim
       earlier. See 725 ILCS 5/122-1(f) (West 2012); Pitsonbarger, 

205 Ill. 2d at 462-63

.
       Baxter’s affidavit testimony is not of such character that it could not have been
       discovered earlier by the exercise of due diligence. See People v. Silagy, 

116 Ill. 2d 357, 368

 (1987). As both prongs of the cause and prejudice test must be satisfied
       (People v. Guerrero, 

2012 IL 112020, ¶ 15

), defendant’s claim is barred. We uphold
       the denial of leave to file this claim.



¶ 57                                   III. CONCLUSION

¶ 58      For the foregoing reasons, the judgment of the appellate court is affirmed.



¶ 59      Affirmed.




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