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                               Appellate Court                            Date: 2016.08.29
                                                                          12:47:42 -05'00'




                   People v. Sanders, 2016 IL App (1st) 121732-B



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-
Caption            Appellee, v. TERRY SANDERS, Petitioner-Appellant.



District & No.     First District, Second Division
                   Docket No. 1-12-1732



Filed              June 28, 2016
Rehearing denied   August 3, 2016


Decision Under     Appeal from the Circuit Court of Cook County, No. 85-C-2190; the
Review             Hon. Timothy Joseph Joyce, Judge, presiding.



Judgment           Reversed and remanded.



Counsel on         Michael J. Pelletier, Patricia Mysza, and Benjamin Wimmer, all of
Appeal             State Appellate Defender’s Office, of Chicago, for appellant.

                   Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Sari London, and Michele Grimaldi Stein, Assistant State’s Attorneys,
                   of counsel), for the People.



Panel              JUSTICE NEVILLE delivered the judgment of the court, with
                   opinion.
                   Justices Simon and Hyman concurred in the judgment and opinion.
                                             OPINION

¶1       A jury found Terry Sanders guilty of murder and two attempted murders committed in
     1985, when Sanders was 17. The trial court sentenced Sanders to serve consecutive terms of 40
     years for the murder and 30 years for each of the two attempted murders, for a total of 100
     years. After the dismissal of his postconviction petition and a successive postconviction
     petition, Sanders filed a second successive postconviction petition, arguing that the sentencing
     statute did not permit the consecutive sentencing the court imposed and that recent cases
     concerning cruel and unusual punishment for minors established that the trial court based the
     sentencing on improper considerations. The circuit court summarily dismissed the second
     successive postconviction petition.
¶2       In this appeal from the dismissal of the second successive postconviction petition, we find
     that recent authority concerning the imposition of lengthy sentences on minors calls into
     question the sentencing here. We reverse the dismissal of the second successive postconviction
     petition and remand for further proceedings in accord with this opinion.

¶3                                          BACKGROUND
¶4       In 1985, William Feuling managed a convenience store where Sanders worked as an
     assistant manager. On January 20, 1985, Arthur Kozak and Brian Walkowiak visited Feuling
     at his home. Sanders also came over with Andrew Johnson and Mike Hill. That evening,
     Johnson and Hill drew guns and ordered Sanders to tie up Feuling, Kozak, and Walkowiak.
     Johnson and Hill robbed Feuling, Kozak, and Walkowiak. Johnson stabbed Feuling
     repeatedly, then handed the knife to Sanders and ordered him to kill Kozak. Sanders drew the
     knife across Kozak’s stomach, head, and neck, making superficial cuts. Sanders then hit
     Kozak’s head with a hammer, and the hammer’s head broke off. Walkowiak got free from the
     bindings and ran. Sanders hit Walkowiak’s head with a poker, but Walkowiak got out and onto
     the street. A bullet ripped into Walkowiak’s back. Walkowiak kept running until he found a car
     whose driver agreed to take him to the nearest hospital.
¶5       Sanders separated himself from Johnson and Hill as they ran from Feuling’s home. Sanders
     found a police officer and told the officer that someone had been stabbed. Sanders gave the
     officer Feuling’s address. Police found Feuling dead at the scene from multiple stab wounds.
     Police cut the cord binding Kozak. Kozak told police about the robbery and murder.
¶6       Pictures taken at the police station showed Kozak’s cuts. The hammer blow to his head left
     no bruise marks. Doctors did not prescribe any medication for Kozak.
¶7       Police never caught Hill. Prosecutors charged Johnson and Sanders with armed robbery,
     murder, and the attempted murders of Kozak and Walkowiak. At the joint trial with Johnson
     before separate juries, Kozak testified that the hammer blow to his head made him dizzy for a
     second, but he never lost consciousness. He claimed no more serious injury from the attack. A
     jury found Sanders guilty of the murder and both attempted murders.
¶8       At the sentencing hearing, the judge emphasized prior findings that Sanders acted
     delinquently. When Sanders was 13, he cut a girl with a razor, and, at age 16, he robbed
     someone. Teachers and other persons in the community thought highly of Sanders, and the
     judge treated their testimony as further reason to regard Sanders as treacherous. The judge
     said:


                                                -2-
                   “I have to make sure on behalf of the Feuling family, on behalf of all of society, that
               you are incarcerated for a sufficiently long period of time so that society will be
               protected against some violent act like this again.
                   That society will not have to worry that Terry Sanders, the fellow that sits here
               meekly in front of me and speaks softly and has gotten so many people to like him and
               to help him out and speak up for him, that you will not turn again on those same people
               and on your friends and commit another horrible crime that nobody can figure out and
               nobody can understand why it happened.
                   I have got to make sure that this does not happen for a considerable period of time.
                   Insofar as your co-defendant, Mr. Johnson, was concerned, I found, and I find
               again, that the murder of William Feuling was an act separate and apart from because it
               ended prior to the time when you attempted to kill Art Kozak and the attempt murder of
               Brian Walkowiak and also was an event that was separate and apart from the murder of
               William Feuling and separate and apart from the attempted murder of Arthur Kozak.
               ***
                   All of these events are separate and distinct and you should be punished
               individually for each because each of them are separate victims.
                   I could sentence you to natural life *** but because of your young age and because
               of your ability to get people to say that you have a potential for rehabilitation *** I am
               not going to do that. But I am going to sentence you to a sufficient period of time that
               society, when you get out, will not have to worry about whether or not you’re going to
               be able to commit crimes such as this again.”
¶9         The appellate court affirmed the convictions and sentences, including the consecutive
       sentencing. People v. Sanders, 168 Ill. App. 3d 295 (1988). Sanders filed a postconviction
       petition, and the circuit court dismissed the petition without holding an evidentiary hearing.
       The appellate court affirmed the judgment. People v. Sanders, No. 1-92-0644 (1993)
       (unpublished order under Supreme Court Rule 23).
¶ 10       In July 2001, Sanders filed a successive postconviction petition, arguing that the trial court
       lacked authority to make the sentence for the attempted murder of Kozak run consecutively to
       the sentence for the murder of Feuling. See Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-4(a), (b). He
       also argued that his trial and appellate counsel provided ineffective assistance when they failed
       to raise the sentencing issue properly in the trial court and on the direct appeal. The circuit
       court dismissed the successive petition, finding that res judicata barred his claims that the
       court imposed a void sentence and that he received ineffective assistance of counsel. This court
       affirmed the trial court’s decision. People v. Sanders, No. 1-01-4121 (2002) (unpublished
       order under Supreme Court Rule 23).
¶ 11       In 2004, Sanders filed a habeas corpus petition. The circuit court recharacterized the
       petition as a second successive postconviction petition and summarily dismissed it. The
       appellate court reversed the decision because the circuit court did not give Sanders the
       opportunity to withdraw or amend his petition when it recharacterized the petition as a
       postconviction petition. See People v. Pearson, 216 Ill. 2d 58 (2005). On remand, in 2011,
       Sanders amended the petition and moved for leave to file it as a second successive
       postconviction petition. He again argued that the trial court lacked authority to impose the
       consecutive sentences. He also argued that the trial court had not properly considered


                                                    -3-
       Sanders’s youth in sentencing. Sanders argued that he had cause for failing to raise the issue
       earlier, because a new decision from the United States Supreme Court, Graham v. Florida, 560
U.S. 48 (2010), changed the law applicable to lengthy sentences for juveniles. In an order dated
       May 4, 2012, the circuit court denied Sanders’s motion for leave to file the second successive
       postconviction petition.
¶ 12       Sanders appealed. This court found the sentence partially void and that new case law
       concerning the sentencing of juveniles warranted advancing his petition to the second stage of
       postconviction proceedings. People v. Sanders, 2014 IL App (1st) 121732-U. Our supreme
       court subsequently decided People v. Castleberry, 2015 IL 116916, in which the court
       overruled cases on which this court relied in finding Sanders’s sentence partially void. The
       supreme court entered a supervisory order directing this court to reconsider the case in light of
       Castleberry. We now vacate our prior order and enter this order.

¶ 13                                            ANALYSIS
¶ 14       We review de novo the order denying Sanders leave to file the successive postconviction
       petition. People v. Gillespie, 407 Ill. App. 3d 113, 124 (2010).

¶ 15                            Cruel and Unusual Punishment of Juveniles
¶ 16        Sanders asked this court to reverse the order denying his motion for leave to file a second
       successive postconviction petition, based on the trial court’s failure to take into account all of
       the considerations relevant to sentencing juveniles. This court reversed the trial court’s
       judgment and remanded for further proceedings on the second successive postconviction
       petition on the grounds that the imposition of a de facto life sentence, without consideration of
       the special circumstances of youth, violated Sanders’s rights under the eighth amendment.
¶ 17        Nothing in Castleberry affects our resolution of this aspect of Sanders’ appeal. The State
       contends that a different decision, People v. Thompson, 2015 IL 118151, ¶ 43, shows that we
       misunderstood the applicability of the eighth amendment to lengthy sentences imposed on
       juveniles. In Thompson, our supreme court held that new case law regarding the sentencing of
       juveniles did not affect the sentence imposed on Thompson, because Thompson was 19 years
       old when he committed the offense for which the trial court had sentenced him. We do not see
       how the holding of Thompson affects the analysis here, as Sanders was a juvenile at the time of
       the offenses at issue in this case. We restate our discussion of the eighth amendment issue.
¶ 18        The Post-Conviction Hearing Act restricts the use of successive postconviction petitions.
       725 ILCS 5/122-1(f) (West 2010). For the court to permit a defendant to file a successive
       postconviction petition, the petitioner must either meet the cause and prejudice test (725 ILCS
       5/122-1(f) (West 2010)) or he must sufficiently allege new evidence of actual innocence.
       People v. Ortiz, 235 Ill. 2d 319, 330 (2009). For the cause and prejudice test, the petitioner
       must show that an objective impediment precluded him from raising the issue in an earlier
       proceeding and that the claimed errors resulted in actual prejudice. People v. McDonald, 405
Ill. App. 3d 131, 135 (2010).
¶ 19        Sanders claims that United States Supreme Court decisions show that he had cause for
       failing to raise the issue in prior proceedings and that he suffered prejudice from the trial
       court’s error. After Sanders filed his earlier postconviction petitions, the Supreme Court
       decided Graham v. Florida, 560 U.S. 48, and Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455


                                                   -4-
       (2012). Those two cases substantially changed the law concerning the imposition of lengthy
       sentences on children. See People v. Davis, 2014 IL 115595, ¶ 41. The Davis court held that
       Miller and Graham changed the law and gave postconviction petitioners cause for failing to
       raise the issue in proceedings that preceded those decisions. Davis, 2014 IL 115595, ¶ 42.
¶ 20       To show prejudice, Sanders must show a reasonable probability that he would have
       achieved a better result if the trial court had correctly applied the eighth amendment, as
       interpreted in the decisions in Graham and Miller. See People v. Pitsonbarger, 205 Ill. 2d 444,
       471 (2002); People v. Mitchell, 189 Ill. 2d 312, 333-34 (2000). In Miller, the United States
       Supreme Court explained at length the special concerns that arise whenever a court sentences a
       juvenile offender. First, the Miller Court interpreted the holdings of Graham and Roper v.
       Simmons, 543 U.S. 551 (2005):
               “Roper and Graham establish that children are constitutionally different from adults
               for purposes of sentencing. Because juveniles have diminished culpability and greater
               prospects for reform, we explained, ‘they are less deserving of the most severe
               punishments.’ Graham, 560 U.S., at ___ (slip op., at 17). Those cases relied on three
               significant gaps between juveniles and adults. First, children have a ‘ “lack of maturity
               and an underdeveloped sense of responsibility,” ’ leading to recklessness, impulsivity,
               and heedless risk-taking. Roper, 543 U.S., at 569. Second, children ‘are more
               vulnerable . . . to negative influences and outside pressures,’ including from their
               family and peers; they have limited ‘contro[l] over their own environment’ and lack the
               ability to extricate themselves from horrific, crime-producing settings. Ibid. And third,
               a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his
               actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ Id., at 570.
                    Our decisions rested not only on common sense—on what ‘any parent
               knows’—but on science and social science as well. Id., at 569. In Roper, we cited
               studies showing that ‘ “[o]nly a relatively small proportion of adolescents” ’ who
               engage in illegal activity ‘ “develop entrenched patterns of problem behavior.” ’ Id., at
               570 (quoting Steinberg & Scott, Less Guilty by Reason of Adolescence:
               Developmental Immaturity, Diminished Responsibility, and the Juvenile Death
               Penalty, 58 Am. Psychologist 1009, 1014 (2003)). And in Graham, we noted that
               ‘developments in psychology and brain science continue to show fundamental
               differences between juvenile and adult minds’—for example, in ‘parts of the brain
               involved in behavior control.’ 560 U.S., at ___ (slip op., at 17). We reasoned that those
               findings—of transient rashness, proclivity for risk, and inability to assess
               consequences—both lessened a child’s ‘moral culpability’ and enhanced the prospect
               that, as the years go by and neurological development occurs, his ‘ “deficiencies will be
               reformed.” ’ Id., at ___ (slip op. at 18) (quoting Roper, 543 U.S., at 570).
                    Roper and Graham emphasized that the distinctive attributes of youth diminish the
               penological justifications for imposing the harshest sentences on juvenile offenders,
               even when they commit terrible crimes. Because ‘ “[t]he heart of the retribution
               rationale” ’ relates to an offender’s blameworthiness, ‘ “the case for retribution is not
               as strong with a minor as with an adult.” ’ Graham, 560 U.S., at ___ (slip op., at 20-21)
               (quoting Tison v. Arizona, 481 U.S. 137, 149 (1987); Roper, 543 U.S., at 571). Nor can
               deterrence do the work in this context, because ‘ “the same characteristics that render
               juveniles less culpable than adults” ’—their immaturity, recklessness, and

                                                     -5-
              impetuosity—make them less likely to consider potential punishment. Graham, 560
              U.S., at ___ (slip op., at 21) (quoting Roper, 543 U.S., at 571). Similarly, incapacitation
              could not support the life-without-parole sentence in Graham : Deciding that a
              ‘juvenile offender forever will be a danger to society’ would require ‘mak[ing] a
              judgment that [he] is incorrigible’—but ‘ “incorrigibility is inconsistent with youth.” ’
              560 U.S., at ___ (slip op., at 22) (quoting Workman v. Commonwealth, 429 S.W.2d
374, 378 (Ky. App. 1968)). And for the same reason, rehabilitation could not justify
              that sentence. Life without parole ‘forswears altogether the rehabilitative ideal.’
              Graham, 560 U.S., at ___ (slip op., at 23). It reflects ‘an irrevocable judgment about
              [an offender’s] value and place in society,’ at odds with a child’s capacity for change.
              Ibid.” Miller, 567 U.S. at ___, 132 S. Ct. at 2464-65.
¶ 21       The Miller court then applied its observations to the case on appeal:
                   “Of special pertinence here, we insisted in these rulings that a sentencer have the
              ability to consider the ‘mitigating qualities of youth.’ Johnson v. Texas, 509 U.S. 350,
              367 (1993). Everything we said in Roper and Graham about that stage of life also
              appears in these decisions. As we observed, ‘youth is more than a chronological fact.’
              Eddings, 455 U.S., at 115. It is a time of immaturity, irresponsibility, ‘impetuousness[,]
              and recklessness.’ Johnson, 509 U.S., at 368. It is a moment and ‘condition of life when
              a person may be most susceptible to influence and to psychological damage.’ Eddings,
455 U.S., at 115. And its ‘signature qualities’ are all ‘transient.’ Johnson, 509 U.S., at
              368. Eddings is especially on point. There, a 16-year-old shot a police officer
              point-blank and killed him. We invalidated his death sentence because the judge did
              not consider evidence of his neglectful and violent family background (including his
              mother’s drug abuse and his father’s physical abuse) and his emotional disturbance.
              We found that evidence ‘particularly relevant’—more so than it would have been in the
              case of an adult offender. 455 U.S., at 115. We held: ‘[J]ust as the chronological age of
              a minor is itself a relevant mitigating factor of great weight, so must the background
              and mental and emotional development of a youthful defendant be duly considered’ in
              assessing his culpability. Id., at 116.” Miller, 567 U.S. at ___, 132 S. Ct. at 2467.
¶ 22       The Supreme Court of Iowa addressed the effect of Miller on sentences other than life in
       prison for juvenile offenders. In State v. Null, 836 N.W.2d 41 (Iowa 2013), the trial court
       sentenced the juvenile offender to an aggregate term of 52.5 years in prison for second degree
       murder and first degree robbery. The court held:
              “[W]hile a minimum of 52.5 years imprisonment is not technically a
              life-without-parole sentence, such a lengthy sentence imposed on a juvenile is
              sufficient to trigger Miller-type protections. ***
                   *** In coming to this conclusion, we note the repeated emphasis of the Supreme
              Court in Roper, Graham, and Miller of the lessened culpability of juvenile offenders,
              how difficult it is to determine which juvenile offender is one of the very few that is
              irredeemable, and the importance of a ‘meaningful opportunity to obtain release based
              on demonstrated maturity and rehabilitation.’ Graham, 560 U.S. at ___, 130 S.Ct. at
              2030, 176 L. Ed. 2d at 845-46. ***
                                                    ***



                                                   -6-
                   *** [W]e conclude [the Iowa constitution] requires that a district court recognize
               and apply the core teachings of Roper, Graham, and Miller in making sentencing
               decisions for long prison terms involving juveniles. [Citations.]
                   First, the district court must recognize that because ‘children are constitutionally
               different from adults,’ they ordinarily cannot be held to the same standard of
               culpability as adults in criminal sentencing. Miller, 567 U.S. at ___, 132 S.Ct. at 2464,
183 L. Ed. 2d at 418; [citation]. The constitutional difference arises from a juvenile’s
               lack of maturity, underdeveloped sense of responsibility, vulnerability to peer pressure,
               and the less fixed nature of the juvenile’s character. [Citations.]
                   If a district court believes a case presents an exception to this generally applicable
               rule, the district court should make findings discussing why the general rule does not
               apply. [Citations.] In making such findings, the district court must go beyond a mere
               recitation of the nature of the crime, which the Supreme Court has cautioned cannot
               overwhelm the analysis in the context of juvenile sentencing. [Citations.] Further, the
               typical characteristics of youth, which include immaturity, impetuosity, and poor risk
               assessment, are to be regarded as mitigating, not aggravating factors. [Citation.]
                   Second, the district court must recognize that ‘[j]uveniles are more capable of
               change than are adults’ and that as a result, ‘their actions are less likely to be evidence
               of “irretrievably depraved character.” ’ Graham, 560 U.S. at ___, 130 S.Ct. at 2026,
176 L. Ed. 2d at 841 (quoting Roper, 543 U.S. at 570, 125 S.Ct. at 1195, 161 L. Ed. 2d at
               22); [citation]. While some juvenile offenders may be irreparably lost, it is very
               difficult to identify juvenile offenders that fall into this category. As the Supreme Court
               noted, even expert psychologists have difficulty making this type of prediction.
               [Citations.] Further, the district court must recognize that most juveniles who engage in
               criminal activity are not destined to become lifelong criminals. [Citations.] The
               ‘ “signature qualities” of youth are all “transient.” ’ Miller, 567 U.S. at ___, 132 S.Ct.
               at 2467, 183 L. Ed. 2d at 422 (quoting Johnson, 509 U.S. at 368, 113 S.Ct. at 2669, 125
L. Ed. 2d at 306). Because ‘incorrigibility is inconsistent with youth,’ care should be
               taken to avoid ‘an irrevocable judgment about [an offender’s] value and place in
               society.’ Miller, 567 U.S. at ___, 132 S.Ct. at 2465, 183 L. Ed. 2d at 419 (citation and
               internal quotation marks omitted).
                   Finally, and related to the previous discussion, the district court should recognize
               that a lengthy prison sentence without the possibility of parole such as that involved in
               this case is appropriate, if at all, only in rare or uncommon cases. [Citations.]
                   At the same time, it bears emphasis that while youth is a mitigating factor in
               sentencing, it is not an excuse. [Citations.] Nothing that the Supreme Court has said in
               these cases suggests trial courts are not to consider protecting public safety in
               appropriate cases through imposition of significant prison terms. Further, it bears
               emphasis that nothing in Roper, Graham, or Miller guarantees that youthful offenders
               will obtain eventual release. All that is required is a ‘meaningful opportunity’ to
               demonstrate rehabilitation and fitness to return to society. Graham, 560 U.S. at ___,
               130 S.Ct. at 2030, 176 L. Ed. 2d at 845-46.” Null, 836 N.W.2d at 71-75.
¶ 23       The court vacated the sentence and remanded for the trial court to reconsider the sentence
       in light of Miller. As the Null court pointed out, courts in other jurisdictions similarly
       remanded cases for resentencing in light of Miller. See People v. Araujo, No. B240501, 2013

                                                    -7-
       WL 840995, at *5 (Cal. Ct. App. Mar. 7, 2013) (unpublished opinion) (sentencing court’s
       reference to the defendant’s “tender age” does not eliminate need to remand for resentencing in
       light of Miller); People v. Rosales, No. F061036, 2012 WL 4749427, at *24 (Cal. Ct. App. Oct.
       5, 2012) (unpublished opinion) (“Miller changed the law on what factors are applicable by
       elaborating extensively on the ways in which a defendant’s youth is relevant ***.”); State v.
       Fletcher, 47-777KA (La. App. 2 Cir. 4/10/13), 112 So. 3d 1031; Daugherty v. State, 96 So. 3d
1076, 1079-80 (Fla. Dist. Ct. App. 2012). Some recent Illinois cases also apply Miller to
       sentences other than life in prison imposed on juveniles. See People v. Dupree, 2014 IL App
       (1st) 111872, ¶ 58; People v. Nieto, 2016 IL App (1st) 121604, ¶ 42. We find Null and the
       other cited authorities persuasive.
¶ 24       The State contends that the application of Miller here conflicts with People v. Davis, 2014
IL 115595, ¶ 43, and People v. Patterson, 2014 IL 115102, ¶ 100. The Davis court noted that
       even after Graham, Roper and Miller, a trial court still has authority to impose a sentence of
       natural life in prison on a juvenile in an appropriate case. Davis, 2014 IL 115595, ¶ 43. We see
       no conflict between that holding and our application of the principles stated in Graham, Roper
       and Miller to this case.
¶ 25       In Patterson, our supreme court said that Graham, Roper and Miller did not apply to the
       sentence of almost 31 years imposed on the juvenile defendant in that case, because the
       sentence, “[a]lthough lengthy, *** is not comparable to *** life in prison without parole.”
       Patterson, 2014 IL 115102, ¶ 108. The trial court here imposed on Sanders consecutive
       sentences totaling 100 years, and, according to the State, even with maximum good time credit,
       Sanders would need to serve at least 49 years before he could become eligible for parole.
¶ 26       “The United States Sentencing Commission Preliminary Quarterly Data Report” (through
       June 30, 2012) indicates that a person held in a general prison population has a life expectancy
       of about 64 years. This estimate probably overstates the average life expectancy for minors
       committed to prison for lengthy terms. One researcher concluded:
                    “A person suffers a two-year decline in life expectancy for every year locked away
                in prison. Evelyn J. Patterson, The Dose-Response of Time Served in Prison on
                Mortality: New York State, 1989-2003, 103 Am. J. of Pub. Health 523, 526 (2013). The
                high levels of violence and communicable diseases, poor diets, and shoddy health care
                all contribute to a significant reduction in life expectancy behind bars. See United
                States v. Taveras, 436 F. Supp. 2d 493, 500 (E.D.N.Y. 2006) (finding ‘persistent
                problems in United States penitentiaries of prisoner rape, gang violence, the use of
                excessive force by officers, [and] contagious diseases’ that lead to a lower life
                expectancy in prisons in the United States), aff’d in part, vacated in part sub nom.
                United States v. Pepin, 514 F.3d 193 (2d Cir. 2008); John J. Gibbons & Nicholas de B.
                Katzenbach, Confronting Confinement 11 (2006). Entering prison at a young age is
                particularly dangerous. Youth incarcerated in adult prisons are five times more likely to
                be victims of sexual or physical assault than are adults. [Citation]; Deborah LaBelle,
                Michigan Life Expectancy Data for Youth Serving Natural Life Sentences, http://
                fairsentencingofyouth.org/wp-content/uploads/2010/02/Michigan-Life-Expectancy-D
                ata-Youth-Serving-Life.pdf (last visited Dec. 12, 2013).” Nick Straley, Miller’s
                Promise: Re-Evaluating Extreme Criminal Sentences for Children, 89 Wash. L. Rev.
                963, 986 n.142 (2014).


                                                   -8-
¶ 27        To become eligible for parole, Sanders will need to outlive his life expectancy. The
       sentence the trial court imposed effectively imprisons Sanders for the remainder of the lifetime
       he can expect to live. See also United States v. Nelson, 491 F.3d 344, 349-50 (7th Cir. 2007)
       (acknowledging the decreased life expectancy for incarcerated individuals based on United
       States Sentencing Commission data). Even after Patterson, Sanders’s extreme sentence, in
       excess of his life expectancy as a prison inmate, implicates the eighth amendment concerns set
       forth in Graham, Roper and Miller.
¶ 28        The trial court here did not consider the special circumstances of youth that often make
       lengthy sentences particularly inappropriate for youthful offenders. The court treated
       Sanders’s evidence of rehabilitative potential as grounds for extending his sentence due to his
       treacherous nature. We find that Sanders has shown a reasonable probability that he would
       have received a shorter sentence if the trial court correctly understood the eighth amendment as
       it applies to the punishment of juvenile offenders. Sanders has sufficiently demonstrated cause
       for the failure to raise the violation in earlier proceedings and prejudice due to the failure, and
       therefore the circuit court should have granted his request for leave to file his second
       successive postconviction petition. See 725 ILCS 5/122-1(f) (West 2004); People v. Smith,
       2014 IL 115946, ¶¶ 34-35. We reverse the order denying Sanders’s motion to file a successive
       postconviction petition, and we remand for further proceedings in accord with this order.

¶ 29                                 Ineffective Assistance of Counsel
¶ 30       Sanders admits that, under Castleberry, his sentence is only partially voidable, not partially
       void, and therefore this court cannot vacate the sentence as void. Sanders asks this court to find
       that his trial and appellate counsel provided ineffective assistance when they failed to
       challenge the sentence as unauthorized by the sentencing statute.
¶ 31       Sanders raised the issue of ineffective assistance for failing to challenge the sentence
       properly in his successive postconviction petition, filed in 2001. The circuit court dismissed
       that petition, finding the ineffective assistance claim barred as res judicata. This court then
       affirmed the dismissal of the petition. Sanders, No. 1-01-4121.
¶ 32       Sanders argues that res judicata does not now bar the issue of ineffective assistance of
       counsel, because no prior court decided the issue on the merits. However, in dismissing the
       2001 petition, the circuit court entered a final judgment specifically deciding the issue of
       whether res judicata barred the claim for ineffective assistance of counsel. We find that the
       final judgment in Sanders, No. 1-01-4121, bars relitigation of the issue of whether res judicata
       bars the claim raised again in the 2004 petition for ineffective assistance of counsel. See
       People v. Blair, 215 Ill. 2d 427, 443 (2005).
¶ 33       Finally, Sanders argues that we should apply the fundamental fairness exception to
       res judicata and permit the claim for ineffective assistance of counsel to proceed. See Blair,
215 Ill. 2d at 450. However, because of our resolution of the issue of whether Sanders stated a
       claim for violation of his rights under the eighth amendment, we find that we lack adequate
       grounds for allowing relitigation of an issue the parties fully litigated in the proceedings on the
       2001 petition.




                                                    -9-
¶ 34                                            CONCLUSION
¶ 35       The decision in Sanders, No. 1-01-4121, bars Sanders from relitigating the issue of
       whether res judicata bars the issue of whether Sanders received ineffective assistance of trial
       and appellate counsel when trial and appellate counsel failed to raise properly the issue of
       whether sentencing statutes permitted the court to impose consecutive sentences for the
       murder of Feuling and the attempted murder of Kozak. But Sanders has shown that recent
       United States Supreme Court decisions have changed sentencing of juveniles in ways that
       could affect the constitutionality of his sentencing, sufficiently showing both cause for his
       failure to raise the issue in earlier proceedings and prejudice due to that failure. We reverse the
       order denying Sanders leave to file his second successive postconviction petition, and we
       remand for further proceedings on Sanders’s petition.

¶ 36      Reversed and remanded.




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