Case Information
*1 I LLINOIS O FFICIAL R EPORTS Appellate Court
In re Omar M.
,
District & No. First District, Sixth Division
Docket No. 1-10-0866
Filed June 29, 2012
Rehearing denied August 23, 2012
Held Section 5-810 of the Juvenile Court Act, the extended jurisdiction juvenile prosecution statute, does not violate due process and is ( Note: This syllabus constitutional, as it provides reasonable standards to prevent arbitrary and constitutes no part of the opinion of the court discriminatory enforcement and is not unconstitutionally vague, either on but has been prepared its face or as applied to this respondent; further it does not violate by the Reporter of Apprendi , which is inapplicable to prosecutions under section 5-810. Decisions for the
convenience of the
reader. )
Decision Under Appeal from the Circuit Court of Cook County, No. 08-JD-155; the Hon. Patricia Mendoza, Judge, presiding. Review
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Heidi Linn Lambros, all of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Annette Collins, Assistant State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the court,
with opinion.
Justices Lampkin and Palmer concurred in the judgment and opinion. OPINION
Omar M., the respondent, was prosecuted, convicted, and sentenced under the extended
jurisdiction juvenile prosecutions (EJJ prosecution) statute (705 ILCS 405/5-810 (West 2008)), for first-degree murder. When a juvenile receives an EJJ prosecution designation and a jury finds him guilty, the EJJ prosecution statute then requires a judge to impose two sentences: a juvenile sentence; and an adult criminal sentence that is stayed on successful completion of the terms of the juvenile sentence. 705 ILCS 405/5-810(4) (West 2008). After a jury found respondent guilty and the trial court heard aggravation and mitigation, he received the maximum juvenile sentence of incarceration until his twenty-first birthday. He also received a 20-year stayed adult sentence. On this appeal, respondent claims: (1) that the State’s proffer of evidence for the EJJ
prosecution designation was “untrue” because two of the State’s four eyewitnesses failed to appear at trial; (2) that the EJJ prosecution statute violates a juvenile respondent’s right to due process because the EJJ prosecution designation is decided by a judge by a preponderance of the evidence instead of by a jury beyond a reasonable doubt; and (3) the EJJ prosecution statute is unconstitutionally vague. For the following reasons, we do not find respondent’s arguments persuasive, and we affirm. BACKGROUND On January 10, 2008, the State charged respondent Omar M. with two counts of first-
degree murder, in violation of section 9-1(a) of the Criminal Code of 1961 (720 ILCS 5/9- 1(a) (West 2006)), arising out of events that occurred on December 24, 2007. Both counts allege that respondent beat the victim, Francisco Reyes, to death using his hands and feet. The first count alleges that respondent intentionally or knowingly beat the victim, thus causing his death. 720 ILCS 5/9-1(a)(1) (West 2006). The second count alleges that respondent beat the victim knowing that his actions created a strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(2) (West 2006). The State initially alleged that respondent used an aluminum baseball bat and his feet, but before trial, the State moved to *3 amend the charging statement to replace “aluminum baseball bat” with “hands.” On January 25, 2008, the State filed a motion to designate the proceeding as an EJJ prosecution, alleging that respondent was 14 years old at the time of the murder and that probable cause existed to indicate that he committed the offense. 705 ILCS 405/5-810 (West 2006). Respondent was born March 13, 1993. The proceedings were transferred to the EJJ prosecution designation judge (the judge) for a hearing to determine whether probable cause existed to believe the allegations against respondent and whether clear and convincing evidence supported the propriety of sentencing respondent as an adult. At the hearing, the State proffered that at trial, it would call Juan Ramirez, who had
discovered the body and called the police, as well as four eyewitnesses to the murder: (1) Jaime Gonzales, (2) Juliana Flores, (3) Fernando Garcia, and (4) Sielvia Ortiz. The State also proffered that it would call Dr. Mitra Kalelkar to testify about the cause of the victim’s death. First, the State proffered that it would call Juan Ramirez, an employee at the Popocatapetal Tortilla Company (factory), to testify as follows. Approximately one month before December 24, 2007, some individuals, who had been chased by local gang members Danny R. and Martin R., had sought safety inside the factory. The employees obliged, granting the individuals entrance into the factory and locking the doors behind them. Martin R. and Danny R. became irate and proceeded to break the windows of vehicles belonging to the factory employees. On the night of December 24, 2007, Ramirez asked the victim to take a forklift to the parking lot and pick up some equipment and bring it back to the factory. When the victim did not return after approximately 20 minutes, Ramirez went to the parking lot and observed the victim lying unconscious on the ground and bleeding from the head. He observed a man known as “Chino,” later identified as Fernando Garcia, near the scene, and believed that Garcia had witnessed an attack on the victim. Ramirez then called police. The State proffered that eyewitness Jaime Gonzales would testify as follows. Gonzales lived near the factory, and on the night of December 24, 2007, he observed Danny R., whom Gonzales knew “from the neighborhood,” talking on a cell рhone. Gonzales heard Danny R. tell the person on the other end of the telephone conversation to come to the factory because some “flakes” were working there. Soon, four other youths arrived at the factory, including respondent. Gonzales recognized them as Martin R., Carlos L., Ishmael M., and respondent. Danny R. and the other four youths then ran toward the factory and the victim, who was driving a forklift. The victim attempted to flee, but Carlos L. caught him and threw him to the ground. All five offenders, including respondent, began kicking and punching the victim without pause for approximately two minutes. Ishmael M. dropped a piece of concrete on the victim’s head. Gonzales observed Adolfo Z., a sixth offender, appear. Gonzales identified Adolfo Z. as a known member of the Latin Kings street gang. As the six offenders beat the victim, they continuously yelled: “F*** him up!” After the beating, all six offenders ran away, leaving the victim on the ground. That night, the police questioned Gonzales at his home, but he did not tell them what he observed because relatives of respondent were watching the police interview witnesses, and Gonzales was afraid of retaliation. Later that night, he called the police on his own and went to the police station with his girlfriend, Juliana Flores, to inform them of what he had observed. Gonzales later identified all six offenders in photo arrays and identified all of the offenders except Carlos L. in actual lineups *4 at the police station. He never observed a lineup with Carlos L. in it.
¶ 9 The State proffered that eyewitness Juliana Flores, Gonzales’ girlfriend, would testify to
the same facts as Gonzales. Flores also observed one of the offenders strike the victim with a baseball bat, but the State did not proffer whether Flores would be able to identify which offender used the bat. When the police arrived at her and Gonzales’ home, she did not say anything because she knew that all six offenders were members of the Latin Kings street gang, and she feared retaliation. Flores also identified all six offenders in a photo array and identified respondent, Ishmael M., Martin R., and Danny R. in a lineup. The State proffered that eyewitness Fernando Garcia, also known as “Chino,” resided
near the factory and would testify as follows. Roughly one month prior to December 24, 2007, Garcia observed Martin R. and Danny R. outside the tortilla factory. Martin R. and Danny R. yelled gang slogans at two unnamed individuals who happened to walk past the factory, then Martin R. and Danny R. tried to start a fight with the two individuals. The two individuals ran toward the factory to escape Martin R. and Danny R., and the employees locked the factory doors after the two individuals entered. When Martin R. and Danny R. could not enter the factory, they began breaking thе windows of the employees’ vehicles. On the night of December 24, 2007, Garcia heard someone talking outside his window. He recognized the voice as belonging to Danny R. He heard Danny R. saying something to the effect of “Come on, one of the factory workers is out there. Let’s go f*** him up.” Garcia went to his window and observed Carlos L., Martin R., Ishmael M., and respondent, all of whom he knew by name or nickname. He also knew that all five offenders were members of the Latin Kings. Garcia also observed the beating, and observed Carlos L. strike the victim with a concrete block. Adolfo Z. arrived and joined in the beating of the victim as the offenders yelled: “F*** him up” and “Kill him.” After the six offenders ran away, Garcia exited his home and observed one of the victim’s coworkers. When the police questioned Garcia that night, he did not tell them what he had observed because he was afraid of retaliation from the relatives of the offenders. Garcia called the police on December 26, 2007, and went to the police station to inform the police of what he had observed. Garcia identified all six offenders in a photo array and an actual lineup. Garcia also observed the prior incident involving Martin R., Danny R., and the two unnamed individuals. The State proffered that Sielvia Ortiz, Garcia’s wife, would testify to the same facts as Garcia. She also observеd Adolfo Z. reach into the victim’s pants and jacket pockets once the victim was unconscious and remove his wallet. Ortiz recognized all six offenders and knew that they were members of the Latin Kings, and she later identified Danny R., Martin R., Ishmael M., and respondent in a photo array, and in a lineup identified all of the offenders except Adolfo Z. as being involved in the beating. She identified Adolfo Z. in a lineup as someone she believed to be involved in the beating, but could not be 100% sure. The State proffered that Dr. Mitra Kalelkar, a deputy chief medical examiner for Cook County, performed the autopsy of the victim on December 28, 2007, and that she opined that the victim died from cranial cerebral injuries as the result of a trauma. On April 9, 2008, the judge found probable cause for the charges of first-degree murder.
The next stage of the EJJ prosecution proceedings determined whether there was clear and *5 convincing evidence that sentencing under the Criminal Code would be inappropriate. The State offered into evidence respondent’s arrest record for burglary in 2006, showing that the State did not prosecute the charges.
¶ 14 Respondent offered documents issued from the juvenile detention center, including
certificates of completion for anger management, risk reduction, and substance abuse classes, and awards for good behavior and academic achievement. Respondent proffered that if his teacher, Ms. Newsome, were to testify at trial, she would state that respondent has difficulty with subjects like reading comprehension, but he is “working very hard” to overcome his difficulties. Finally, respondent introduced a report prepared by licensed clinical social worker Elizabeth Kooy. The report stated that respondent was small for his age and outlined his home life. Respondent lived with his mother and siblings on the second floor of a walk- up building, and respondent’s father and the father’s girlfriend lived on the first floor. The report indicated that respondent, his mother, and his siblings did not communicate with the father, despite living in the same building.
¶ 15 The judge found that respondent’s prior delinquent or criminal history was “non-
existent,” and further found that he was required by statute to give greater weight to that factor. The judge found that respondent’s home life was “chaotic,” although he also found that respondent had not been the victim of abuse or neglect
¶ 16 The judge also found that the offense was extremely serious and that all of the offenders
were “egging each other on,” and the judge was mandated to give that factor greater weight. The judge found that respondent personally used his hands and feet and a broken baseball bat to strike the victim, and that the offense had been аggressive and premeditated. The judge determined that treatment within the juvenile justice system was advantageous to the programs and facilities of the adult system. The judge found that there was not a reasonable likelihood that respondent could be rehabilitated before age 21, in part because his “chaotic” family situation and the fact that he was out of his home after midnight “in the presence of gangbangers,” some of whom were members of respondent’s family. The judge ultimately concluded that there was no clear and convincing evidence that an adult sentence would not be appropriate, and he granted the motion to designate the case as an extended jurisdiction juvenile prosecution. The case was then transferred back to the trial court. Before trial, the State stated that it was not able to now locate two of the witnesses it had included in its proffer before the judge. The missing witnesses were (1) Juan Gonzales and (2) Juliana Flores. Gonzales and Flores were the only witnesses who had observed respondent use a baseball bat to attack the victim, and the State moved to strike the language from the charging statement asserting that respondent used a baseball bat to strike the victim, and amend it to state that he used his feet and hands. The trial court granted the motion. At trial, eyewitnesses Fernando Garcia and Sielvia Ortiz testified as the State had previously proffered. Dr. Mitra Kaelkar testified that she performed the autopsy and that the victim died from cranial cerebral injuries. On December 4, 2009, the jury found respondent guilty of first-degree murder. As noted,
after hearing aggravation and mitigation, the trial court sentenced respondent to the Department of Juvenile Justice until his twenty-first birthday, and ordered respondent to *6 serve a minimum of five years’ imprisonment before he could be placed on parole. The trial court also sentenced respondent to a 20-year adult sentence to be stayed, pursuant to the EJJ prosecution statute, on the condition that he did not violate the provisions of his juvenile sentence. At the sentencing, the assistant public defender stated that the sentencing order had been “drafted by [the public defender].” The trial court declined to explain the terms and conditions of how the adult sentence would be triggered, stating that it would “not attempt to explain to you when and how this State’s sentence could kick in. Your lawyers will do that.” However, the trial court made it clear that if respondent did not “follow all of the rules and regulations,” he would serve both the juvenile and adult sentences.
¶ 21 ANALYSIS I. Designation of Proceeding as an Extended
Jurisdiction Juvenile Prosecution Respondent first argues that the trial court erred in designating his first-degree murder proceeding as аn EJJ prosecution. Respondent’s argument largely relies on the fact that the State did not prove at trial several of the factors that the judge relied on to designate the case as an EJJ prosecution. Thus, respondent claims that the State’s proffer was unsubstantiated and untrue. As a result of the judge’s reliance on the State’s erroneous proffer, respondent argues that his 20-year adult sentence should be vacated. The State responds (1) that respondent’s arguments are based on misrepresentations of the record, and (2) that respondent’s trial counsel did not object to the State’s proffer during the prosecution hearing or during the trial, and thus, respondent’s argument is forfeited. The State also argues that the trial court appropriately considered and weighed all relevant factors during the prosecution hearing, and it was not an abuse of discretion for the trial court to designate these proceedings as an EJJ prosecution. On January 25, 2008, the State filed a motion to designate the proceeding as an EJJ
prosecution. When the juvenile court designates a case as an EJJ prosecution, the minor subject to the prosecution is entitled to a jury trial. 705 ILCS 405/5-810(3) (West 2008). If the trial results in a guilty verdict, the trial court must impose a juvenile sentence and an adult sentence, staying the adult sentence on the condition that the minor not violate the provisions of the juvenile sentence. 705 ILCS 405/5-810(4) (West 2008). The EJJ prosecution statute provides that the State’s Attorney may file a petition, at any
time prior to the commencement of the minor’s trial, to designate the proceeding as an EJJ prosecution. 705 ILCS 405/5-810(1)(a) (West 2008). The petition must allege the commission by a minor 13 years of age or older of any offense which would be a felony if committed by an adult. 705 ILCS 405/5-810(1)(a) (West 2008). If the judge assigned to hear and determine petitions to designate the proceeding as an EJJ prosecution determines that there is probable cause to believe that the allegations in the petition and motion are true, there is a rebuttable presumption that the proceeding shall be designated as an EJJ prosecution. 705 ILCS 405/5-810(1)(a) (West 2008). The judge shall enter an order designating the proceeding as an EJJ prosecution proceeding unless the judge, after evaluating the factors listed below, makes a finding based on clear and convincing evidence that sentencing under *7 Chapter V of the Code of Corrections would not be appropriate for the minor:
“(b) The judge shall enter an order designating the proceeding as an extended jurisdiction juvenile proceeding unless the judge makes a finding based on clear and convincing evidence that sentencing under the Chapter V of the Unified Code of Corrections would not be appropriate for the minor based on an evaluation of the following factors:
(i) the age of the minor;
(ii) the history of the minor, including:
(A) any previous delinquent or criminal history of the minor, (B) any previous abuse or neglect history of the minor, and (C) any mental health, physical and/or educational history of the minor; (iii) the circumstances of the offense, including: (A) the seriousness of the offense,
(B) whether the minor is charged through accountability, (C) whether there is evidence the offense was committed in an aggressive and premeditated manner,
(D) whether there is evidence the offense caused serious bodily harm, (E) whether there is evidence the minor possessed a deadly weapon; (iv) the advantages of treatment within the juvenile justice system including whether there are facilities or programs, or both, particularly available in the juvenile system;
(v) whether the security of the public requires sentencing under Chapter V of the Unified Code of Corrections:
(A) the minor’s history of services, including the minor’s willingness to participate meaningfully in available services;
(B) whether there is a reasonable likelihood that the minor can be rehabilitated before the expiration of the juvenile court’s jurisdiction; (C) the adequacy of the punishment or services.” 705 ILCS 405/5-810(1)(b) (West 2008). In considering these factors, the trial court shall give greater weight to the seriousness of
the alleged offense and the minor’s prior record of delinquency than to other factors listed
in this subsection. 705 ILCS 405/5-810(1)(b) (West 2008). The standard of review of the
decision to designate a proceeding as an EJJ prosecution is abuse of discretion.
In re
Dontrale E.
,
not object to respondent’s EJJ prosecution designation after trial and did not ask for reconsideration of the ruling in a posttrial motion. The State argues that respondent’s trial *8 counsel did not object to the State’s proffer during the prosecution hearing when respondent’s counsel stated, “[m]inor waives opening. And we have no argument as to probable cause.” Respondent’s trial counsel did not contest any of the State’s arguments for probable cause or present any evidence on probable cause. The State also argues that respondent did not object during trial, when the State amended the petition for adjudication of wardship to remove mention of the use of a bat, because witnesses who had seen respondent use the bat were in hiding and evading service, and thus could not be forced to testify. The State also notes that respondent’s trial counsel did not object to how the trial evidence would then be different from what was proffered as the prosecution hearing. As a result, the State contends that the respondent’s argument is forfeited because he has not established plain error. A criminal respondent preserves an error for review by objecting to the claimed error at
trial and raising the issue in a posttrial motion.
In re M.W.
,
either: (1) an error occurs and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the respondent, or (2) an error occurs that is so
serious it affected the fairness of the respondent’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.
People v. Piatkowski
, 225 Ill.
2d 551, 565 (2007);
People v. Herron
,
shows that respondent should not have received a stayed adult sentence and that respondent’s case should not have been designated an EJJ prosecution. In regard to the “circumstances of the offense” factor, respondent argues that there are several differences between the State’s proffer during the EJJ prosecution hearing and the trial evidence. First, respondent claims that the State proffered that two witnesses, Jaime Gonzales and Juliana Flores, would testify that they observed respondent leave the scene and return with an aluminum bat which respondent proceeded to beat the victim with. Second, the State proffered that two other witnesses, Fernando Garcia and Sielvia Ortiz, would testify that respondent was a Latin Kings gang member. Finally, the State proffered that respondent’s motive for attacking the victim was a prior incident, which took place on December 4, 2007, where two of the offenders fought with two individuals and the two individuals received shelter from the *9 offenders from employees of the tortilla factory. Respondent argues that the evidence the State proffered at the hearing were not proven at trial, as there was no evidence at trial respondent used an aluminum bat, was a gang member, and had a motive to retaliate against the factory employees. Thus, respondent claims that the trial court’s findings regarding the factor of the circumstances of the offense were based on the State’s “erroneous” and “uncorroborated” proffers which were not proven at trial, and thus, it was an error for the trial court to designate respondent’s case an EJJ prosecution. The State responds by arguing that respondent’s claims are false and that its proffer
during the EJJ prosecution was not untrue or a misrepresentation. The State argues that the record shows how its two witnesses, Jaime Gonzales and Juliana Flores, were scared, reluctant to testify during trial, and evaded service. Prior to any court proceedings, both Jaime Gonzales and Juliana Flores made oral and written statements to the police that they knew all of the offenders to be members of the Latin Kings gang members and that they both observed respondent use an aluminum baseball bat to beat the victim. The State also argues that there is substantial evidence in the record showing respondent
to be a Latin Kings gang member and that the trial court’s suppression of gang-related evidence was not due to the lack of evidence of respondent’s gang membership, but due to the court’s finding that there was insufficient evidence that the offense charged was gang- motivated. The record shows that the trial court found that gang membership can be established, but the court barred evidence of gang membership because it found that there was not enough of a connection between the offense and gang activity. Evidence regarding motive for the attack was not introduced at trial, and as a result, the trial court found that there was not enough evidence linking respondent to the prior incident which occurred on December 4, 2007. The State’s arguments and the record both demonstrate that the State’s proffer was not
erroneous or based on misrepresentations. The record demonstrates that both respondent’s
trial counsel and the State had difficulty locating and bringing the two witnesses, Jaime
Gonzales and Juliana Flores, to court to testify. The trial court also found that respondent’s
gang membership could be established, but such evidence was not allowed at trial because
of the lack of connection between the gang activity and the offense. Respondent argues that
the trial judge should have reevaluatеd the elements of an EJJ prosecution; however this
would be tantamount to imposing a new step in the judicial process. Nowhere in the EJJ
prosecution statute does it state that a judge’s designation of a proceeding as an EJJ
prosecution must be reevaluated if elements of the State’s proffer from the pretrial EJJ
prosecution hearing are not later proven at trial. 705 ILCS 405/5-810 (West 2008).
In regard to respondent’s claim that the trial court erred in designating the case as an EJJ
prosecution, there is also nothing in the record demonstrating that the trial court abused its
discretion in its evaluation or that the judge failed to consider all of the factors enumerated
in section 5-810. See
Dontrale E.
,
“[The] previous delinquent or criminal history of the [respondent] is non-existent, and I’m required by statute to give greater weight to this factor ***; The minor has no previous or current mental health history ***; The education history includes being enrolled in special education classes for a highly structured class with individualized assistance ***; Although the family life has been chaotic, he has not been subject to physical abuse or neglect ***; I believe that there are many advantages to treatment within the juvenile justice system *** the factor is less important because if the minor is found guilty he would have the benefit of programs within the juvenile justice system and would receive an adult sentence only if he failed his juvenile sentence ***; Does the security of the public require that an adult sentence be imposed? There are three subfactors to consider in answering this question ***.”
Many of the arguments that respondent now presents in his appeal regarding the factors concerning the age of the minor and respondent’s criminal, family, and education history were already presented to the juvenile judge during the EJJ prosecution hearing. The judge had thoroughly considered these statutory factors. In its discussion of the minor’s offense, the judge noted how the crime was “extremely
serious.” Even though the aluminum bat was not a deadly weapon, the trial court stated that respondent and his co-offenders used their fists, their feet, a broken aluminum bat, and concrete chunks to kill the factory worker victim. The court noted that the offense was committed in an “aggressive and premeditated manner,” that there was an “absolute lack of any personal animus or motivation towards the decеased,” and that “[t]he minor is alleged to have, personally used his feet, fist, and most chillingly to have left and returned with a broken bat that he repeatedly struck the victim with.” In considering all the factors and giving greater weight to the lack of criminal history and the seriousness of the offense, the trial court determined that there was no clear and convincing evidence that an adult sentence would not be appropriate for this respondent. The record does not give any indication that the judge neglected to evaluate any of the
above factors, nor does the record show that the judge abused its discretion in its evaluation
of the above factors listed in section 5-810.
Dontrale E.
, 358 Ill. App. 3d at 140. In an
analogous case interpreting the juvenile transfer statute, our Illinois Supreme Court found
that the transfer hearing was inadequate because the juvenile judge did not consider all of the
factors necessitated under the transfer statute.
People v. Clark
,
rise to the level of plain-error. As stated above, the plain-error doctrine allows a reviewing
court to consider unpreserved error when (1) a clear or obvious error occurred and the
evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the respondent, regardless of the seriousness of the error, or (2) a clear or obvious
error occurred and that error was so serious that it affected the fairness of the respondent’s
trial and challenged the integrity of the judicial process, regardless of the closeness of the
evidence.
Piatkowski
,
the integrity of the judicial process.
Piatkowski
,
aluminum bat, his involvement with the Latin Kings, or his motive for murder, the plain- error doctrine is not applicable because this neither tipped the scales of justice against the *12 respondent, nor did it affect the fairness of respondent’s trial.
¶ 41 II. Apprendi Issue
¶ 42 Respondent raises two Apprendi claims. Respondent claims first that EJJ prosecution
statute is an unconstitutional violation of
Apprendi v. New Jersey
,
for the reasons below. A. Standard of Review A respondent “may challenge the constitutionality of a statute at any time.” People v.
Wagener
,
probable cause that a juvenile at least 13 years old committed an offense “which would be a felony if committed by an adult.” 705 ILCS 405/5-810(1)(a) (West 2008). The information presented to the judge may be by way of proffer. 705 ILCS 405/5-810(2) (West 2008). The minor may rebut the presumptive EJJ prosecution designation with clear and convincing evidence that EJJ prosecution is not appropriate in this case. 705 ILCS 405/5-810(1)(b) (West 2008). There is a list of factors for the trial court to consider when ruling whether an EJJ prosecution designation is appropriate. 705 ILCS 405/5-810(1)(b) (West 2008). The factors are:
“(i) the age of the minor;
(ii) the history of the minor, including:
(A) any previous delinquent or criminal history of the minor, (B) any previous abuse or neglect history of the minor, and (C) any mental health, physical and/or educational history of the minor; (iii) the circumstances of the offense, including:
(A) the seriousness of the offense,
(B) whether the minor is charged through accountability, (C) whether there is evidence the offеnse was committed in an aggressive and *13 premeditated manner,
(D) whether there is evidence the offense caused serious bodily harm, (E) whether there is evidence the minor possessed a deadly weapon; (iv) the advantages of treatment within the juvenile system including whether there are facilities or programs, or both, particularly available in the juvenile system; (v) whether the security of the public requires sentencing under Chapter V of the Unified Code of Corrections:
(A) the minor’s history of services, including the minor’s willingness to participate meaningfully in available services;
(B) whether there is a reasonable likelihood that the minor can be rehabilitated before the expiration of the juvenile court’s jurisdiction; (C) the adequacy of the punishment services.” 705 ILCS 405/5-810(1)(b) (West 2008).
The most important factors are the juvenile’s criminal history and the seriousness of the offense. 705 ILCS 405/5-810(1)(b) (West 2008). If a juvenile receives an EJJ prosecution designation and if a jury later finds that respondent guilty, the EJJ prosecution statute then requires a judge to impose two sentences: a juvenile sentence; and an adult criminal sentence that is stayed on successful completion of the terms of the juvenile sentence. 705 ILCS 405/5-810(4) (West 2008). C. Apprendi Respondent’s first argument is that the EJJ prosecution statute violates Apprendi . The United States Supreme Court in Apprendi held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury [or trier of fact], and proved beyond a reasonable
doubt.”
Apprendi
,
of Washington’s sentencing guidelines. It explained that the “ ‘statutory maximum’ “ is “the
maximum sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” (Emphasis omitted.)
Blakely
,
¶ 52 D. Illinois Appellate Cases
¶ 53 After Apprendi but before Blakely , this court held that Apprendi applies only to
adjudicatory proceedings, and that EJJ prosecutions are not adjudicatory, but dispositional.
In re Matthew M.
,
¶ 54 In Matthew M. , the first of these cases, the respondent was prosecuted and sentenced
under the EJJ prosecution statute for a residential burglary.
Matthew M.
,
statute.
J.W.
,
decided before Blakely and because an EJJ prosecution is not purely dispositional. Respondent claims that since the juvenile court retains jurisdiction but imposes an adult sentenсe, EJJ prosecution does not simply transfer a respondent from juvenile to adult court. Rather, respondent argues that the EJJ prosecution statute violates Apprendi because a judge can, in effect, extend the juvenile’s sentence based on facts not found by the fact finder. We do not find respondent’s argument persuasive for the following reasons. Though these cases were decided before Blakely , Blakely does not affect the validity of
their holdings. First, unlike the statute in Blakely , the EJJ prosecution statute does not involve a sentencing guideline. Second, since Blakely explains how to apply Apprendi , it does not affect our ruling that Apprendi does not apply at all.
¶ 59 We adhere to our precedent that Apprendi does not apply to the EJJ prosecution statute.
The EJJ prosecution statute decides which forum will hear a respondent’s case; it does not determine a respondent’s guilt or the specific sentence. Respondent distinguishes between the EJJ prosecution statute and the transfer of jurisdiction statute (705 ILCS 405/5-805 (West 2008)), and calls the EJJ prosecution statute a “hybrid.” While it is true that the EJJ prosecution statute does not wholly transfer a respondent to adult criminal court and that a respondent receives a juvenile sentence, these differences do not affect the dispositional nature of the statute.
¶ 60 As a dispositional, not adjudicatory statute, the EJJ prosecution statute cannot violate
Apprendi because Apprendi simply does not apply. ¶ 61 F. Even if Apprendi Did Apply, the EJJ
Prosecution Statute is Constitutional Even if Apprendi did apply, the EJJ prosecution statute is still constitutional. Respondent’s second argument focuses on the language in Apprendi that “the relevant inquiry is one not of form, but of effect–does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Apprendi , 530 U.S. at 494. Respondent argues that the effect of EJJ prosecution designation is to expose a respondent to the longer adult sentence based on information found by the judge on the basis of only probable cause–a violation of Apprendi . Respondent claims that the EJJ prosecution statute violates Blakely because the adult sentence is longer than the maximum sentence allowed under the juvenile system. However, the statutory maximum for Apprendi purposes is not the maximum punishment
allowed in the juvenile system. A juvenile court hearing is not a matter of right.
J.W.
, 346 Ill.
App. 3d at 11 (citing
P.H.
,
reasonable doubt. The sentence was within the statutory range of 20 to 60 years for first-
degree murder. In
J.W.
, we distinguished the EJJ prosecution statute from the statute in
Apprendi
and stated that the EJJ prosecution statute does not violate
Apprendi
because “the
EJJ [prosecution] determination dоes not increase the allowable penalty for murder based
upon a judge’s independent finding with regard to additional elements of the crime.”
J.W.
,
apply, EJJ prosecution does not violate it.
¶ 66 III. Vagueness
¶ 67 In respondent’s brief to this court, he claims that the EJJ prosecution statute is vague and
thus unconstitutional under the due process clauses of both the Illinois and United States Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. Respondent claims that the EJJ prosecution statute is facially vague on two grounds: (1) the language does not properly notify a respondent about which acts will trigger revocation of the stay on his adult sentence; and (2) the language does not provide a judge or law enforcement officer with sufficient guidance to prevent arbitrary and discriminatory law enforcement. In addition, respondent claims that the EJJ prosecution statute is unconstitutionally vague as applied to him because the trial court failed to specify any particular conditions or offenses that, if committed, would revoke the stay on respondent’s adult sentence. We find that respondent’s arguments are not persuasive for the following reasons.
¶ 68 The constitutionality of a statute is a question of law and, therefore, our standard of
review is
de novo
.
People v. Einoder
,
analyzed whether the EJJ prosecution statute is vague. The cases cited did not perform a
vagueness analysis or were not on point. This court has repeatedly held that a party waives
a point by failing to cite authorities.
Lozman v. Putnam
,
argument that respondent lacks standing in this appeal. The State argues that respondent does
not have standing because his adult sentence has not yet been imposed. The State cites two
cases from this court in support of its argument.
In re J.W.
,
that a respondent lacked standing to challenge the EJJ prosecution statute for vagueness
before an adult sentence was imposed.
J.W.
,
*17
and not abstract or moot issues.
Borsellino v. Putnam
,
¶ 73 In the case at bar, first, the claimed injury is directly traceable to the State’s imposition
of an adult sentence under the EJJ prosecution. Second, the claimed injury would be redressed if either we found the statute facially unconstitutional or if we remanded the case for further clarification. Third, respondent’s claimed injury here is both distinct and palpable because, if the
statute is unconstitutionally vague, respondent will live in fear that he may unknowingly
revoke the stay through his conduct, and thus cause the court to impose his 20-year adult
sentence. Our supreme court has instructed us that a respondent has standing to challenge the
State’s prospective right to apply a statute where the respondent “is in immediate danger of
sustaining harm by enforcement of the allegedly unconstitutional provision.”
People v. P.H.
,
contends.
First, in
In re Christopher K.
,
vagueness analysis of the EJJ prоsecution statute despite the exact same standing challenge
by the State. Our Illinois Supreme Court held that the respondent’s claim was moot because
the minor was “no longer subject to the adult sentence” after he turned 21.
In re Christopher
*18
K.
,
21 if this case reaches the Illinois Supreme Court. Thus, by that time, it will be moot.
Christopher K.
,
void because: (1) it fails to define what conduct will revoke the stay on a respondent’s adult
sentence; and (2) it fails to provide adequate guidance to law enforcement and judicial
authorities in applying the statute. The vagueness doctrine arises out of the due process
clauses of the United States and Illinois Constitutions. “It is established that a law fails to
meet the requirements of the Due Process Clause if it is so vague and standardless that it
leaves the public uncertain as to the conduct it prohibits....” (Internal quotation marks
omitted.)
City of Chicago v. Morales
, 527 U.S. 41, 56 (1999) (quoting
Giaccio v.
Pennsylvania
,
the opportunity to understand what conduct is prohibited, and it must provide a reasonable
standard tо law enforcement officials and to the judiciary to prevent arbitrary and
discriminatory legal enforcement.
People v. Einoder
,
and an adult sentence. 705 ILCS 405/5-810(4)(i), (ii) (West 2008). The adult sentence is stayed, and the stay can be revoked if the minor “violate[s] the provisions of the juvenile sentence.” 705 ILCS 405/5-810(4)(ii) (West 2008). The EJJ prosecution statute provides:
“When it appears that a minor convicted in an extended jurisdiction juvenile prosecution *** has violated the conditions of his or her sentence, or is alleged to have committed a new offense upon the filing of a petition to revoke the stay, the court may, without notice, issue a warrant for the arrest of the minor. After a hearing, if the court finds by a preponderance of the evidence that the minor committed a new offense, the court shall order execution of the previously imposed adult criminal sentence. After a hearing, if the court finds by a preponderance of the evidence that the minor committed a violation of his or her sentence other than by a new offense, the court may order execution of the previously imposed adult criminal sentence or may continue him or her on the existing juvenile sentence with or without modifying or enlarging the conditions.” (Emphases added.) 705 ILCS 405/5-810(6) (West 2008). Respondent first contends that the terms “conditions” and “offense,” as used in the
above-quoted statute, are unconstitutionally vague because they fail to make clear to a person
of ordinary intelligence what type of conduct will trigger the adult sentence.
People v.
Sharpe
,
EJJ prosecution statute. It explicitly refers to those “conditions
of his or her sentence
.”
(Emphasis added.) 705 ILCS 405/5-810(6) (West 2008). Where the trial court orders
provisions such as probation or drug counseling in addition to the juvenile detention term,
those provisions of the juvenile sentence would be part of the EJJ prosecution “conditions.”
Where the trial court does not impose any additional provisions at sentencing, the term
“conditions” refers only to the minor’s completion of his or her sentencе and the minor’s
adherence to the Illinois Department of Corrections (IDOC) rules and regulations during that
time. Respondent raises a series of hypothetical scenarios in which the conditions of a
sentence could be vague. However, we will not find a “statute *** unconstitutionally vague
merely because one can imagine hypothetical situations in which the meaning of some terms
might be called into question.”
People v. Izzo
,
Respondent claims that it is unclear whether the word “offense” refers to any type of offense, or only to certain types of offenses such as felonies. Respondent also questions: (1) whether an “offense” is committed by a mere arrest, or if criminal proceedings must be brought; and *20 (2) whether “offense” includes only Illinois criminal offenses, or all state, federal, and even municipal offenses. The Criminal Code of 1961, however, defines “offense” as “a violation of any penal statute of this State.” 720 ILCS 5/2-12 (West 2008). Thus, an “offense” means all international, federal, or state offenses that are considered criminal within the State of Illinois. Still, the respondent claims that there is no indication that the Criminal Code applies to the Juvenile Court Act or to the EJJ prosecution statute. This argument ignores the fact that the EJJ prosecution statute is, in essence, a criminal statute, applying only to criminal offenses. 705 ILCS 405/5-810(1)(a) (West 2008). Thus, definitions found in the Criminal Code are applicable. Respondent also claims that a lack of maturity may magnify the effect of statutory
vagueness for minors. A vagueness analysis could, arguably, be modified for statutes
affecting only minors by interpreting the words “person of ordinary intelligence” as a
“person, of defendant’s age, of ordinary intelligence.” This analysis would be comparable
to the “reasonable person” standard in tort claims, which is modified for minors. However,
“[i]n Illinois law there is a presumption that [only] a child between the ages of seven and
fourteen is incapable of negligence.”
Perricone v. DiBartolo
,
they will induce arbitrary and discriminatory enforcement. To satisfy due process, a statute
must “provide[ ] sufficiently definite standards for law enforcement officers and triers of fact
that its application does not depend merely on their private conceptions.”
People v. Wilson
,
states that “if the court finds by a preponderance of the evidence that the minor committed
a violation of his or her sentence other than by a new offense, the court may order execution
of the previously imposed adult criminal sentence or may continue him or her on the existing
juvenile sentence with or without modifying or enlarging the conditions.” 705 ILCS 405/5-
810(6) (West 2008). Contrary to respondent’s claim, the Juvenile Court Act’s section on
“Purpose and policy” provides guidance to trial court judges. 705 ILCS 405/1-2 (West 2008).
“The purpose of this Act is to secure for each minor subject hereto such care and guidance
*** as will serve the safety and moral, emotional, mental, and physical welfare of the minor
and the best interests of the community ***.” 705 ILCS 405/1-2 (West 2008). Furthermore,
the Juvenile Court Act explicitly grants trial court judges discretion to affect these goals. 705
ILCS 405/1-2(4) (West 2008) (“This Act shall be liberally construed to carry out the
*21
foregoing purpose and policy.”). Juvenile courts historically have unique discretion, for
example in assessing a waiver of
Miranda
rights. See
Fare v. Michael C.
,
¶ 89 Second, respondent claims that the statute grants probation officers inappropriate
discretion to determine whether the adult sentence is triggered. This argument ignores the fact that the EJJ prosecution statute requires a judicial hearing before the stay on the adult sentence can be revoked. 705 ILCS 405/5-810(6) (West 2008) (“After a hearing” the court may order execution of the adult sentence.). Therefore, a probation officer’s discretion is appropriately checked by the judiciary. As stated previously, precise statutory construction is not necessary. For example, in
People v. Dominguez
,
satisfies due process requirements and is not unconstitutionally vague.
Vuagniaux v.
Department of Professional Regulation
,
because the trial judge provided inadequate instructions. At trial, the judge stated:
“I will not attempt to explain to you when and how this [adult] sentence could kick in. Your lawyers will do that. But if you do not follow all of the rules and regulations, you could very well see yourself serving not only the time in the Juvenile Temporary Detention Center but also 20 years in adult prison.”
Although the trial judge did not describe in detail the list of conditions or offenses that would trigger the adult sentence, as explained above the terms are plain and unambiguous and thus satisfy due process requirements. The State counters that respondent forfeited an “as applied” challenge because there was
no objection made in the trial court. Respondent responds, first, by arguing that the
constitutionality of a criminal statute may be challenged at any time. Second, he argues that
a challenge may be raised under the plain-error doctrine. The plain-error doctrine allows a
reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and
the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the respondent, regardless of the seriousness of the error, or (2) a clear or obvious
error occurred and that error was so serious that it affected the fairness of the defendant’s
trial and challenged the integrity of the judicial process, regardless of the closeness of the
evidence.
People v. Land
,
challenged at any time. People v. McCarty , 223 Ill. 2d 109, 123 (2006) (allowing a constitutional challenge where the appellant did not file a posttrial motion and did not raise a constitutional challenge in his petition for leave to appeal); see also In re. J.W. , 204 Ill. 2d 50, 61 (2003) (“[I]n general, a constitutional challenge to a criminal statute can be raised at any time.”); People v. Wright , 194 Ill. 2d 1, 24 (2000) (“[I]f, as defendant argues, [the statute] is unconstitutional, it would be fundamentally unfair to uphold his convictions.”). Therefore, we will consider respondent’s constitutional challenge of the EJJ prosecution statute without considering respondent’s plain error doctrine claim. Respondent, however, may be prohibited from raising an “as applied” challenge for a
different reason. Our Illinois Supreme Court has instructed that, under the doctrine of invited
error, a party may not request to proceed in one manner and then later contend on appeal that
the сourse of action was in error.
Torres v. Midwest Development Co.
,
respondent, we find that the statute satisfied due process for the same reasons that the statute is not vague on its face. The terms “conditions” and “offense” are plain and unambiguous *23 terms and thus the judge’s instruction was not unconstitutionally vague. In the instant action, the trial court did not impose any additional conditions, either in his juvenile sentence or in the mittimus. Therefore, if respondent successfully completes his juvenile detention term and if he complies with the rules and regulations provided to him by the IDOC, then he will have satisfied all the conditions associated with his sentence. The word “conditions” is thus clear and concrete in respondent’s case. Furthermore, as stated previously, the term “offense” means any criminal offense and thus is equally clear and concrete. In sum, respondent has standing to challenge the constitutionality of the EJJ prosecution
statute because the claimed injury is traceable to respondent’s actions, is likely to be
prevented or redressed by the grant of the requested relief, and is a distinct and palpable
injury. The EJJ prosecution statute satisfies due process because it provides people of
ordinary intelligence with the opportunity to understand what conduct is prohibited, and it
provides a reasonable standard to law enforcement officials and to the judiciary to prevent
arbitrary and discriminatory legal enforcement. Finally, the “as applied” challenge fails under
the invited error doctrine because respondent introduced the challenged sentence.
CONCLUSION
For the foregoing reasons, we affirm. First, we find that the trial court did not err in
designating respondent’s proceeding as an EJJ prosecution. Second, we hold that the EJJ
prosecution statute does not violate the principles set forth by the United States Supreme
Court in
Apprendi v. New Jersey
,
Notes
[1] Our supreme court granted a petition for leave to appeal in In re M.I. and it is currently pending in that court. In re M.I. , No. 113776 (Ill. Mar. 28, 2012).